J.P. Stevens and Co., Inc.

National Labor Relations Board - Board Decisions

Jan 21, 1980

247 N.L.R.B. 420 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. P. Stevens and Company, Inc. and Amalgamated
Clothing and Textile Workers Union, AFL-CIO-
CLC. Cases 15-CA-6297, 15-CA-6508, 15-CA-
6534, 15-CA-6548, 15-CA-6548-1, 15-CA-6548-
2, 15-CA-6548-3, 15-CA-6548-4, and 15-CA-
6548-5
January 21, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On April 13, 1979, Administrative Law Judge
Robert A. Giannasi issued the attached Decision in
this proceeding. Thereafter, the General Counsel,
Respondent, and the Charging Party filed exceptions
and supporting briefs. The General Counsel and the
Charging Party also filed briefs in support of the
Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs'
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge to the
extent they are consistent herewith and to adopt his
recommended Order, as modified herein.
As more fully set forth in the attached Decision, the
Administrative Law Judge found, inter alia, that
Respondent violated Section 8(a)(1) during the union
organizing campaign when, on September 2, 1976,
Respondent posted a notice in all of its nonunion
plants announcing that it intended to make improve-
ments to its existing insurance program. The Adminis-
trative Law Judge based his finding on the following
facts: (I) A 3-month hiatus between the announce-
ment of the improved plan and its implementation; (2)
the announcement occurred shortly before the Union's
September 13 demand for recognition; and (3) Re-
spondent contemporaneously violated the Act by
promising benefits and unlawfully soliciting and reme-
dying grievances.
'The General Counsel filed a motion to consolidate these cases with Case
1 5-CA--6678. The motion was denied in Case 15-CA-6678, J. P. Stevens and
Company, Inc., 243 NLRB 996 (1979).
' Respondent and the Charging Party have excepted to certain credibility
findings made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
' While we agree with the extraordinary remedies the Administrative Law
Judge did grant, we disavow his characterization of those remedies as
247 NLRB No. 44
We find merit to Respondent's exception to this
finding. The notice clearly states that the new plan is
to take effect companywide. This is in contrast to the
announcement of an additional holiday, contained in
the same notice, which does not indicate that it is to be
effective companywide. We also note that, unlike the
other benefits found to be violations, the insurance
plan was not the subject of discussions during the
meetings or solicitation of grievances. Moreover, no
election was scheduled or even petitioned for, and
there was no indication that there would be any better
time for announcing this companywide improvement.
We therefore do not find, based on the preponderance
of the evidence, that the announcement of the im-
proved companywide insurance plan tended to affect
employee rights under Section 7 of the Act, and,
accordingly, we shall dismiss that portion of the
complaint. Cf. N.L.R.B. v. Exchange Parts Company,
375 U.S. 405 (1964).
The General Counsel and the Charging Party
except to the Administrative Law Judge's failure to
grant litigation expenses and organizing costs.' We
find it unnecessary to recite, once again, the litany of
serious unfair labor practices committed by this
Respondent since 1963. It will suffice to state that
Respondent has reacted to this organizing attempt as
it has at its other locations: By engaging in surveil-
lance and creating the impression thereof, interroga-
tion, promising and granting benefits, summarily
discharging union adherents, and unlawfully interfer-
ing with the organizing campaign. We therefore are
not hesitant to order this Respondent to reimburse the
Board and the Charging Party for all litigation
expenses-relating to meritorious unfair labor practice
allegations-reasonably incurred as a result of this
lengthy case.4 We shall also order Respondent to
reimburse the Charging Party for any excess orga-
nizing costs it reasonably incurred from September 15,
1976, the date Respondent willfully flouted its lawful
duty to recognize the Union.'
ORDER6
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
"'traditional in Stevens cases." The Board reviews all cases on their merits and
grants or denies remedies based on the record as a whole. Cf. J. P. Stevens and
Company, Inc., 243 NLRB 996.
'See J. P. Stevens d Co., Inc., 239 NLRB 738 (1978).
'See J. P. Stevens d Co., Inc.. 244 NLRB 407 (1979).
' The Administrative Law Judge found that Respondent issued discrimina-
tory warnings to employees Garner, Taylor, and Shaw. However, he
inadvertently failed to recommend that Respondent expunge these warnings
from their personnel records. We find that expungement is necessary to
effectuate the purposes of the Act, and shall modify his recommended Order
accordingly.
420
J. P. STEVENS AND COMPANY. INC.
Order of the Administrative Law Judge, as modified
below, and hereby orders that Respondent, J. P.
Stevens and Company, Inc., New York, New York, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Insert the following as paragraph 2(c):
"(c) Expunge and remove from its records and files
the unlawful warning notices, suspensions, or similar
notations dealing with the unlawful terminations of
the employees found to have been discriminated
against herein. In addition, remove from its files the
following warnings: Those of Willie Townsend from
August 1976 until February 1977; those of J. B.
Jefferson dated June 10 and July 29 and 30, 1977,
those of Margie Moss and Tim Walker on August 18,
1976; those of Melvin Boyd on September 8, 9, and 13,
1976; those of William Minnifield from August 20,
1976, until his discharge; and those of Edward
Beeman after September 10, 1976; and expunge from
its records the unlawful warning notices issued to
Nancy Garner, Grace Shaw, and Janetta Taylor for
engaging in union activity. In addition, Respondent
shall write a letter to each affected employee that it
has complied with this provision."
2. Insert the following as paragraphs 2(1) and (m)
and reletter the following paragraphs accordingly:
"(1) Pay to the Board and the Union the reasonable
costs and expenses incurred by them in the investiga-
tion, preparation, and conduct of their meritorious
litigation before the Board, with interest computed as
set forth in Florida Steel Corporation, 231 NLRB 651
(1977).
"(m) Make whole the Union for all excess organiza-
tional costs and expenses reasonably sustained during
the campaign at West Boylston, Alabama, from
September 15, 1976, with interest computed as set
forth in Florida Steel Corporation, supra. "
3. Substitute the attached Appendix B for that of
the Administrative Law Judge.
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an opportuni-
ty to present evidence and cross-examine witnesses,
the National labor Relations Board has again found
that we violated the National Labor Relations Act, as
amended, and has ordered us to post this notice. We
intend to abide by the following:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representa-
tives of their own choosing
To act together for purposes of collective
bargaining or other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT coercively interrogate employ-
ees about their or other employees' union activi-
ties or desires.
WE WILL NOT discourage activity on behalf of
Amalgamated Clothing and Textile Workers
Union, AFL-CIO-CLC, or any other labor
organization, by discharging, refusing to transfer,
hire, rehire, or reinstate, suspending, harassing,
disciplining, or issuing warnings to employees or
otherwise discriminating against employees in
any manner with respect to their tenure of
employment or any term or condition of employ-
ment.
WE WILL NOT solicit grievances from employ-
ees with the implied or express promise that they
will be remedied without a union.
WE WILL NOT promise or grant benefits or
improvements in terms and working conditions
or announce such benefits or improvements to
employees in order to discourage them from
supporting the Union, or any other labor organi-
zation. However, nothing herein shall be con-
strued as authorizing or requiring us to vary or
abandon any benefits previously conferred.
WE WILL NOT threaten employees with eco-
nomic and other reprisals because they engage in
union activities.
WE WILL NOT tell employees that support of a
union will be futile, that we will not sign a
contract with the Union, or that we will learn the
identity of union card signers and the names of
employees who file charges or give testimony
concerning unfair labor practices against us.
WE WILL NOT solicit employees to spy on
union meetings or activities or otherwise engage
in surveillance of union activities or create the
impression among employees of surveillance of
union activities.
WE WILL NOT threaten employees with harass-
ment if they sign union cards, inform or encour-
age employees to report to us if employees are
pressured into signing union cards, or issue
warnings to employees who pass out union cards
or engage in union activity.
WE WILL NOT tell employees that they will not
be considered for employment unless they give up
the Union or refuse to hire them because charges
421
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were filed on their behalf with the National Labor
Relations Board.
WE WILL NOT refuse to bargain collectively
with the above-named Union as the exclusive
representative of the employees in the appropriate
unit set forth below.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of the rights guaranteed them by Section 7 of the
Act.
WE WILL, upon request, recognize and bargain
in good faith with Amalgamated Clothing and
Textile Workers Union, AFL-CIO-CLC, as the
exclusive representative of all employees in the
appropriate unit set forth below with respect to
rates of pay, wages, hours, and other terms and
conditions of employment and, if an understand-
ing is reached, embody such understanding in a
written, signed agreement. The appropriate unit
is:
All production and maintenance employees,
including lab technicians, chief lab technicians,
production clerks, payroll analysis clerk, head
warehouseman, training instructors, utility air
conditioning mechanic, and section men or
fixers, employed at our West Boylston facility,
but excluding: training supervisor, billing clerk,
guards, payroll clerk, porter, traffic manager,
switchboard operator, office supervisor, secre-
tary-clerk, shipping supervisor, head packer
and all other guards, managerial employees
and supervisory employees as defined in the
Act.
WE WILL offer employees Marva Watkins,
Alvin Pinkard, William Minnifield, Margie Moss,
Edward Beeman, Melvin Boyd, Calvin Rumph,
Jerry Oliver, and Richard Purter immediate and
full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or
other rights and privileges, and make them and
employees Tim Walker and J. B. Jefferson whole
for any loss of earnings or benefits connected with
their employment status they may have suffered
because of our discrimination against them, with
interest.
WE WILL expunge and remove from our
records and files any unlawful warning notices,
suspensions, or similar notations dealing with the
terminations of the employees named above who
were found to have been discriminated against. In
addition, WE WILL remove from our files the
following warnings: those of Willie Townsend
from August 1976 until February 1977; those of
J. B. Jefferson dated June 10 and July 29 and 30,
1977; those of Margie Moss and Tim Walker on
August 18, 1976; those of Melvin Boyd on
September 8, 9, and 13, 1976; those of William
Minnifield from August 20, 1976, until his
discharge; those of Edward Beeman after Septem-
ber 10, 1976; and those issued to Nancy Garner,
Grace Shaw, and Janetta Taylor for engaging in
union activity. In addition, WE WILL write a
letter to each affected employee that we have
complied with this provision.
WE WILL compensate the Union and the
Board for their expenses in investigating, prepar-
ing for, and conducting this case, with interest,
and WE WILL compensate the Union for any
excess expenses incurred during the organization-
al campaign at West Boylston, Alabama, with
interest.
WE WILL send all our employees copies of this
notice, with an explanatory letter; WE WILL read
this notice to all our employees; and WE WILL
grant the Union, as ordered, access to our bulletin
boards, access to our nonwork areas, speaking
opportunities, and lists of names and addresses of
our employees at all of our plants.
J. P. STEVENS AND COMPANY, INC.
[Signature lines for the president, chairman
of the board of directors, three members of
the board of directors, and the plant manag-
er omitted from publication.]
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNAsI, Administrative Law Judge: This
case was heard before me in Montgomery, Alabama, for 49
days from August 1, 1977, until April 4, 1978.
Upon a number of charges, the first of which was filed in
November 1976, the complaint, which originally issued on
May 24, 1977, and was amended several times thereafter,
including at the hearing, alleged that Respondent committed
some 65 separate violations of Section 8(a)(l) of the National
Labor Relations Act, as amended, by various acts and
statements of interference, coercion, threats, interrogation,
and promises and grants of benefits. It also alleged that
Respondent violated Section 8(a)(3) and (1) of the Act by
discharging, disciplining, and refusing to rehire some 23
employees because of their activities on behalf of the
Charging Party-Union.' The complaint also alleged that
Respondent violated Section 8(a)(5) and () of the Act by
refusing to recognize and bargain with the Union in
September 1976 at a time when the Union had obtained
authorization cards from a majority of the employees and
' Two of the 8(aXI) and 8(a)3) violations were also alleged as violations of
Sec. 8(a)(4).
422
J. P. STEVENS AND COMPANY, INC.
after Respondent had embarked on a course of serious unfair
labor practices which precluded a free election. Respondent
denied the violations alleged in the complaint. The General
Counsel, the Charging Party, and Respondent submitted
proposed findings and conclusions and supporting briefs
which were received by September 1, 1978.
Upon consideration of the entire record, including my
observation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Delaware corporation engaged in the sale
and manufacture of textile products at its facility in West
Boylston, Alabama. The West Boylston plant is a yarn
producing facility. During a 12-month representative period
prior to the issuance of the complaint, Respondent pur-
chased and received at its West Boylston, Alabama, plant
goods and materials valued in excess of $50,000 directly
from points located outside Alabama. During the same
period, Respondent manufactured at its West Boylston plant
and shipped directly to points outside Alabama products
valued in excess of $50,000. Accordingly, I find, as Respon-
dent admits, that Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION
The Charging Party (hereinafter, called the Union) is the
lawful continuation of two unions, Amalgamated Clothing
Workers of America and Textile Workers of America, which
merged in June 1976. The legality of the merger, which took
place before the beginning of the organizing campaign in this
case, was litigated and upheld by the Board in American
Enka Co., a Division of Akzona Incorporated, 231 NLRB
1335 (1977), and J. P. Stevens & Co., Inc., 239 NLRB 738
(1978). Respondent does not challenge the legality of the
merger in this proceeding.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent has 85 plants with more than 40,000 employ-
ees. The Union has been engaged in a 15-year effort to
organize various of Respondent's facilities. The Board and
court reports abound with episodes from this effort and
Respondent's numerous violations of the National Labor
Relations Act of all types, including contempt adjudications
by United States Courts of Appeals. Respondent has never
signed a bargaining agreement with the Union. The Union
has won bargaining rights at two facilities, and both
campaigns spawned extensive litigation. The first, in States-
boro, Georgia, involved a refusal to bargain and other unfair
labor practices based on events which occurred in 19682 and
'See441 F.2d 514(5th Cir. 1971).
'The Statesboro plant, like the plant involved in this case, was a yarn-
producing facility. That plant was closed, and the closing is the subject of a
is still the subject of a continuing contempt proceeding in the
Court of Appeals for the Fifth Circuit;' the other, in
Roanoke Rapids, North Carolina, resulted in a recent
finding by the Board that Respondent bargained in bad faith
in violation of the Act. J. P. Stevens & Co., Inc., supra. A
third campaign at the Wallace, North Carolina, plant in
1975 resulted in further litigation and a Decision by an
Administrative Law Judge recommending that Respondent
be required to bargain with the Union. That Decision is
pending before the Board (Case I -CA-6077, et. al., March
22, 1978) [244 NLRB 407 (1979)]. There are a number of
other pending cases involving Respondent at various stages
of litigation.
Respondent's West Boylston facility has been operating as
a textile plant-primarily manufacturing yarn-for many
years. Respondent took over the facility in or about 1968 or
1969. Some employees have worked at the plant for over 20
years. Respondent apparently relied on the employees'
original seniority dates in implementing personnel actions
based on seniority.
The plant operates 24 hours per day on three shifts. The
hours of the first shift are from 6 a.m. to 2 p.m.; the second
from 2 to 10 p.m.; and the third from 10 p.m. to 6 a.m. The
production area of the West Boylston facility is in one
building which has thre, floors, each designated as a mill.
Each shift has a shift supervisor or overseer and each mill
has a general overseer. There is a group of employees called
section men or fixers-the descriptions are interchange-
able-whose principal function is the repair and mainte-
nance of machines. They are assigned to particular sections
identified as carding, twisting, picking, winding, or spinning,
which apparently correspond to the types of machines in
each section. They work under the supervision of the shift
overseer. General maintenance and skilled employees work
under separate supervision. The office, managerial, and
administrative staff is housed in a separate administration
building across the street from the production facility.
In July 1976, when the Union began its organizing drive,
about 450 production and maintenance employees worked at
the West Boylston facility.
In mid-July 1976, Union Business Agent Henry Mann
distributed union leaflets and cards at the front gate of the
plant. Mann also conducted union meetings for employees
beginning on Sunday, August 8, 1976. Most of the meetings
were held at a Howard Johnson motel or a Holiday Inn in
Montgomery. General meetings were held every other
Sunday at 3 p.m., and committee meetings were held twice
on Tuesday, at 10 a.m. and again at 6 p.m. Meetings
continued up until the time of the hearing in this case.
Mann testified that, at the first meeting-which was
attended by about 200 employees-and at each meeting
thereafter, he held up a union authorization card and read it
to the employees. He stated to the employees that the
purpose of signing the card was to signify that the signer
"wanted" the Union. Mann told the employees that, in view
of Respondent's history of unfair labor practices and refusal
to bargain with the Union, the Union did not believe that
there could be a fair election at the West Boylston plant. He
continuing investigation and contempt proceeding. See Adjudication and
Order of the Fifth Circuit, 83 LC ¶ 10,367 (January 9, 1978).
423
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefore stated that the cards would be used to support a
bargaining demand on the basis of a majority showing of
signed cards. He also told the employees that Respondent
could petition for an election and there might possibly be an
election, but he never said that the purpose of the cards was
for an election.
Mann also told the employees that the Textile Workers
Union, whose cards had been used in the initial distribu-
tions, had merged with the Amalgamated Clothing Workers
Union and the name of the new Union was the Amalga-
mated Clothing and Textile Workers Union. The Unions
had merged in June, and Mann had utilized the Textile
Workers cards he had on hand until he received a supply of
cards with the name of the postmerger union. He explained
this to the employees. He also explained the merger at every
meeting until he received a supply of new Amalgamated
Clothing and Textile Workers cards from the Union's office
in Charlotte, North Carolina, in October and "many times"
thereafter. Some of the employees signed cards at the
meetings. Others took cards home or to the plant, distribut-
ed them, signed them or had others sign them, and returned
them to Mann at another union meeting.'
There were distributions of union materials at the West
Boylston plant by Mann and employees on a number of
occasions. There were four distributions between July 15 and
November 16, 1976, including one on August 17 and
another on September 8 and 9. Thereafter there were about
five distributions. According to Mann, there was one before
Thanksgiving 1976, one before Christmas, and some in early
1977. All of the leaflets after the first one had the name of
the postmerger union on them, i.e., Amalgamated Clothing
and Textile Workers Union. Some of the distributions
announced union meetings. One, which was circulated in
mid-August, emphasized that the West Boylston plant paid
less in fringe benefits, including sickpay and holidays, than
the other Stevens plants.5
By late August or early September a substantial number of
employees had signed union authorization cards. They were
instructed by Mann to inform their supervisors that they had
signed cards and supported the Union and to do this in the
presence of a witness. Many did so. Respondent kept a list of
union supporters, including many, but not all, of those who
had identified themselves as "for the Union." The names of
more than 130 employees appeared on the list which was
admitted into evidence.
On September 13, 1976, Respondent received a letter from
the Union, dated September 10, notifying it that the Union
represented a majority of the West Boylston employees
based on signed authorization cards, offering to prove its
majority through a disinterested third party, and demanding
recognition. On September 15 Respondent asserted a doubt
as to the Union's majority status, declined to recognize the
' When employees sign authorization cards, their names are placed on a
mailing list and they receive, among other things, copies of the Union's
monthly newspaper.
' The above is based on the credited testimony of Henry Mann. He
impressed me as an honest witness who withstood vigorous cross-examina-
tion. His testimony was essentially corroborated by that of numerous
employees who were cross-examined on Mann's remarks at the union
meetings, particularly on whether the matter of the merger was mentioned. I
also permitted Mann to be recalled for further cross-examination by
Respondent on this issue. I have considered his testimony on recall and do not
Union, and suggested referral of the matter to the labor
Board.
In early October 1976 the law firm of Thompson, Ogletree
and Deakins-later reorganized as Ogletree, Deakins,
Smoak, and Stewart-was retained as counsel by Respon-
dent.' Thereafter, Homer L. Deakins, Jr., a lawyer with the
firm, held two meetings with Respondent's supervisors and
instructed them concerning Respondent's position on unions
and what should or could be said in Respondent's campaign
among employees against the Union. The first unfair labor
practice charge in this case was filed on November 15, 1976,
and was received by Respondent by mail 2 days later. The
charge alleged that certain named employees, including Tim
Walker, Ed Beeman, William Minnifield, Margie Moss,
Melvin Boyd, Alvin Pinkard, Richard Purter, and Marva
Watkins, had been discriminatorily terminated within the
past 3 months. The charge also alleged acts of discrimination
against other named union supporters, including Calvin
Rumph, who was still employed at the time but who was
subsequently fired. An amended charge was filed on Decem-
ber 13, 1976, which also alleged a violation of Section 8(a)(5)
and (1) of the Act.'
In late December 1976 a third meeting was held by
Respondent's counsel with its supervisors at which Deakins
advised that the filing of charges would block any possible
election. Neither the Union nor Respondent had filed for an
election or given any indication that it would do so. At this
third meeting, the supervisors were advised that "our
campaigning was to be stopped at that point."'
B. The Alleged 8(a)(1) Violations
1. The enlistment of an employee to engage in
surveillance of union activity
On August 10, 1976, General Overseer Marvin "Red"
Hicks approached utility employee Tom Kendrick, who
worked on the second shift, beginning at 2 p.m., and asked
him what had happened at the union meeting. Kendrick,
who at this point was against the Union, replied that there
had been a meeting at 10 a.m. Hicks told Kendrick that he
could arrange for Kendrick to attend the 6 p.m. union
meeting that day. He told Hicks to arrange with Bobby Ball,
Kendrick's immediate supervisor, about leaving, and Ken-
drick did so. Kendrick punched out about 5 p.m. and
punched back in about 7:43 p.m., according to his timecard
of August 10. He attended the 6 p.m. meeting. Hicks had left
the plant when Kendrick returned. The next day, between 2
and 3 p.m., Hicks questioned Kendrick about the union
meeting. In response, Kendrick reported that about 100
employees were at the meeting, 15 white employees and the
rest black. Hicks asked whether a particular person was at
the meeting and the names of those who attended. Kendrick
find that it detracts from his credibility or that of other witnesses on the
merger issue.
° Prior to this time, Respondent had been represented by Whiteford S.
Blakeney.
' Still another amended charge was filed on January 28, 1977; and a third
amended charge was filed on May 23, 1977.
Another legal briefing of the supervisors took place, according to
Personnel Director King Compton, in "mid summer" of 1977-after the
complaint issued in this case. Counsel met with those supervisors "who had
charges filed against us at that time" and later met with all of the supervisors.
424
J. P. STEVENS AND COMPANY. INC.
replied he did not know the names of the employees as they
worked on different shifts from his.
About I week later, Hicks approached Kendrick and
asked him to come to Plant Manager Riley Skidmore's
office. Kendrick met there with Hicks, Skidmore, and Plant
Superintendent Paul Gregory. Hicks questioned Kendrick
about who had been at another union meeting he had
attended. Kendrick gave a general response and expressed a
reluctance to talk further about union meetings. On one
further occasion, sometime in October or November 1976,
Hicks again approached Kendrick and questioned him about
a union meeting. Kendrick gave an evasive reply, stating
that Hicks would find out about such matters "soon
enough" and that he was not "having any more to do with
the meeting."
The above is based on the testimony of Kendrick. His
testimony was confusing at times because of his limited
comprehension and language difficulties, but he impressed
me as candid and truthful and totally without guile. On
cross-examination, Kendrick also appeared to be confused
by questions about his affidavit. He is unable to read and the
affidavit was read to him by a Board agent at the time it was
taken, which explains some of the confusion. However,
Kendrick's substantive testimony is not seriously controvert-
ed by his affidavit. That he was confused as to which of
several conversations included his expressed unwillingness to
continue spying, or where the second conversation with
Hicks took place, does not reflect on the veracity of the
substance of his testimony.
On the other hand, the denials of Hicks and his second-
shift overseer, Bobby Ball, are unpersuasive. I do not credit
either man based both on their demeanor and the inherent
implausibility of their testimony. I do not believe Hicks'
testimony that Kendrick volunteered the detailed informa-
tion he admittedly gave Hicks about the August 10 union
meeting; nor do I believe that Kendrick asked Hicks to
arrange for him to meet with Skidmore or that Hicks did so
without knowing the purpose of the meeting. Based on my
assessment of his demeanor, I do not believe that Kendrick
would have initiated such activity. Nor do I believe, in view
of Respondent's rather stringent personnel policies, dis-
cussed elsewhere in this decision, that Hicks and Ball would
have unquestioningly released Kendrick from work in the
middle of his shift, as they testified, without further inquiry
into his generally "stated personal" excuse and in the
absence of prior notification. Respondent's alleged benign
treatment of Kendrick on this occasion stands in stark
contrast to its acknowledged policy of not permitting
employees to leave their work unless there is good and
specific cause and advance notice. Insistence on compliance
with this policy caused the discharge and suspension of
several other employees.
Based on the credited testimony, I find that Respondent
solicited employee Kendrick to engage in surveillance of
union meetings and coercively questioned him about such
meetings in violation of Section 8(a)(l) of the Act.
2. The warnings issued to employees for engaging in
union activity
On August 12 and 17 and September 8, 1976, Respondent
issued separate warnings to three active prounion employees,
Nancy Garner, Grace Shaw, and Janetta Taylor, for
soliciting on behalf of the Union on the basis of complaints
by three other employees. The incidents were reported to
Plant Superintendent Paul Gregory, the second highest
ranking official at the plant, by Mill Overseer Marvin Hicks.
Gregory talked to one of the complaining employees and
secured a statement from another, but he never mentioned
their names to the accused employees. The warnings stated
that the employees were accused of "harassing" another
employee "about matters this employee does not want to be
bothered with." The warnings continued that this was a
"serious matter." The warnings were written before securing
explanations from the accused employees, although they
were called individually into Gregory's office and issued the
warnings in the presence of Mill Overseer Marvin Hicks
and, in one case, Shift Overseer Bobby Ball.
Garner's meeting was on August 12. She asked who had
accused her, and Gregory said he could not tell her. She
asked if the complaint was connected with her work.
Gregory said it was not and that she was considered a good
worker. Garner became upset and began to cry.
Taylor's meeting was on August 17. Her name appeared
on Respondent's list of union supporters under the date of
August 9. Gregory told Taylor that he did not want Taylor
talking about "these things" in the lunchroom, bathroom, or
anywhere on company property. Although Taylor was not
any more specific in identifying "these things," Gregory told
Taylor she was aware of what he was talking about. Taylor
asked who complained about her, and Gregory said he could
not divulge the information, but that it involved her
harassing employees to sign something they did not want to
sign.
Shaw was called into Gregory's office on September 8.
Gregory told her the complaint about harassment was worse
than absenteeism, low production, or anything she could do.
Shaw stated that she could not think of anyone she had
harassed. Gregory said that Shaw was the only one who
could correct the matter.
Gregory's testimony does not differ significantly from that
discussed above by Taylor, Shaw, and Garner, which I credit
as being more candid and detailed. Gregory concedes that
the "harassment" he spoke of was the effort by the
employees to get others to sign union cards. He also testified
that he believed the employees knew he was talking about
the signing of union cards even though he did not specifical-
ly mention this. Although Gregory testified that the com-
plaints from other employees were about union solicitations
"on the job," he did not elaborate, and there was no evidence
that the solicitations were on worktime. None of the
complaining employees testified. Gregory conceded he did
not even mention the names of the complaints to the
employees. Nothing in the written warnings shows a concern
over work or job interference. Nor did Gregory mention,
either orally or in his warnings, a violation of a specific no-
solicitation rule. Moreover, according to Gregory, whose
main responsibility is manufacturing problems, only "occa-
425
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sionally" does he get involved in personnel matters. Thus, I
reject any interpretation of Gregory's testimony which
would suggest that he specifically mentioned a concern over
interference with work or that the solicitations themselves
were on work time or in violation of a lawful no-solicitation
rule.'
The circumstances surrounding issuance of the warnings
clearly show that they interfered with protected union
activity and were intended to discourage union activity. It is
clear from Gregory's testimony that he was concerned about
the fact that the "harassment" involved prounion employees
trying to get other employees to sign union cards and that
this was "specifically" what he was trying to stop. There was
no mention in the warnings about interference with work.
Nor did Gregory mention the subject matter of the "harass-
ment" or the names of the complaining employees in the
interview. These matters would candidly have been men-
tioned if his was a work-related concern. Moreover, the
unusual involvement of Plant Superintendent Gregory in
simple employee warnings, the fact that the warnings were
written out before the employees' stories were heard,
Gregory's emphasis on the severity of the matter, and his
indirect and guarded references to "harassment" which,
according to Gregory, the employees knew meant union
solicitation, confirm that Gregory's concern was the employ-
ees' union activity and not any interference with work.
Finally, since none of the complaining employees testified, I
credit the testimony of Shaw, Taylor, and Garner that their
union solicitation at the plant was not done in a threatening
or harassing manner.
There can be no doubt, in these circumstances, that the
warnings and the confrontation in Gregory's office were
intended to and did coerce employees in the exercise of their
Section 7 rights. Accordingly, I find that the warnings and
the confrontation were violative of Section 8(a)(1) of the
Act. See J. P. Stevens and Co., Inc., 163 NLRB 217, 244-245
252 (1967), enfd. in relevant part 388 F.2d 896 (2d Cir.
1967).
3. The speech by Plant Superintendent Gregory
On August 16 Plant Superintendent Paul Gregory deliv-
ered a speech at the plant to assembled employees. He gave
his speech three times, once to each shift. He was introduced
by Ralph Sullivan, Respondent's group manager of a group
of plants which included West Boylston. Sullivan stated that
the speech had the backing of Respondent's top manage-
ment.
In the speech, Gregory spoke about the union campaign
and its importance. He expressed Respondent's opposition to
unionization, its view that a union "sooner or later brings
friction and disagreement and often serious trouble for all
concerned" and that "this union" would not "work out to
the best interest of anybody who is connected with this
plant." He stated Respondent's intention to oppose the
Union and by every lawful and proper means to prevent it
from coming in here," and he recommended that employees
' Personnel Director King Compton testified that there was no written no-
solicitation rule, but that "union solicitations are allowed during nonunion,
nonworking time." He was apparently referring to a union orientation
"take no action" on the subject of unionization "without
weighing the whole matter very thoroughly."
Gregory stated that the Union could not "force this
company to do anything whatever that the company is not
willing to do, or does not consider it reasonable or practical
to do. The Union could try to pressure the company by
pulling you out on strike. But the Stevens Company has no
intention of giving in to any sort of strike pressure, now or at
anytime." He continued:
Everybody knows that where unions are is where strikes
generally take place. And everybody knows that strikes
mean trouble and tension and strain and strife-which
often ends up in serious violence.... Even more
important, those who follow a union out on strike run
the risk of losing their jobs. For it is the right of a
company to replace those who leave their jobs and go
on strike. And those who are replaced have no
automatic right to come back and get their jobs, even
when the strike has ended.
Gregory also stated:
Our company has approximately 85 plants and more
than 40,000 employees. This plant has less then 500
employees. Yet when Stevens raises wages, it never
overlooks this plant. You get the same wage raises and
increased benefits, right along with all the Stevens
plants and right along with the largest of them.
It is only recently that you, along with all the
company's employees, received a sizeable increase. On
top of that, you have also recently been given an
improved guaranteed pension plan.
If you will think a moment, you will realize that
without fail, this company is raising wages and improv-
ing benefits steadily and dependably-right along each
and every year.
Do you really think it likely-does it stand to
reason-that if you were to form a union here at West
Boylston, the company would then give to you higher
wage increases and benefits than it has given to any of
its other 40,000 employees?
The Unions have been pressuring Stevens in every
way possible for many years. There is not a thing that
they can do to Stevens, that they haven't already tried
before. Yet they have never forced this company to give
to employees in any plant any wage increase or benefits
of any kind that it did not give in its other plants.
Upon facts such as these, is it really common sense to
believe that by starting a union down here at West
Boylston, the company would give in to your union and
come down and put into effect here higher wages and
benefits than it has anywhere else? Whoever believes
that-is not thinking or reasoning very clearly.
A union can start trouble all right. But who do you
think stands to gain from such trouble? If a union got in
here and became your representative and started a
strike, can you picture this plant, with less than 500
employees, winning such a strike against Stevens with
more than 40,000 non-union employees?
statement read to new employees which I have found unlawful elsewhere in
this Decision.
426
J. P. STEVENS AND COMPANY. INC.
Gregory continued that "when a strike gets going" those
who suffer most are the employees and "not the Company
with its 85 plants and 40,000 other employees."
He also spoke about union authorization cards:
I understand that the union organizers, and some of
your fellow employees as well, are saying that if you
will sign a card for the Union, then it will be kept
confidential and nobody except the Union or the Labor
Board will ever see your signatures on the union card.
You are entitled to know that this may turn out to be
entirely untrue.
Nowadays, unions sometimes try to get into a plant
on the basis of the union cards, without employees
having voted on the matter at all. Where this happens,
the signed union cards are taken to a public hearing at
the court house-and the cards are laid on the table,
and people are put on the witness stand and questioned
as to whether the cards do bear their true signature and
as to the circumstances of their signing the cards.
In such situations, as you can see, the signed cards
are anything but confidential. They are made public just
as anything and everything in a court proceeding is
made public. Now it is for you to decide whether this
gives you any concern or not. But you are entitled to
know that when the Union assures you that the cards
will always remain, and will necessarily remain, private
and confidential-it may be that you are being seriously
misled.
He concluded as follows:
Whatever our problems may be, the Union is not the
road toward making things better. It is the road toward
making them far worse!
I make no claim that everything here is perfect as it
is. I know that matters can be corrected and im-
proved-and I can assure you that it is our sincere
desire and intention to accomplish such improvement. I
know that we can work things out by pulling together-
and I also know that they can never be worked out by
our pulling apart. Toward the purpose of betterment
and improvement at this plant, we promise you our
cooperation-and we sincerely hope that we may have
yours!
This speech was delivered in substantially the same form
at several of Respondent's plants then undergoing a union
campaign. See J. P. Stevens & Co., Inc., 239 NLRB at 763
(Roanoke Rapids, North Carolina); and the decision of
Administrative Law Judge Wolfe in J. P. Stevens & Co., Inc.,
245 NLRB 198, 205 (1979) (Rocky Mount, Virginia).
The clear implication of Gregory's remarks was that
collective bargaining would be futile because of Respon-
dent's economic strength and intention to resist collective
bargaining on principle. As the Board stated in adopting
Administrative Law Judge Ries' analysis of this very speech,
Respondent "promised its unorganized employees that it
'" See N.LR.B. v. Fleetwood Trailer Co.. 389 U.S. 375 (1967); The Laidlaw
Corp. v. N.LR.B., 414 F.2d 99, 103-107 (7th Cir. 1969), cert. denied 397 U.S.
920 (1970); Mastro Plastics Corp., and French-American Reeds Mfg. Co.. Inc.
v. N.LR.B., 350 U.S. 270, 278 (1956).
" See Daybreak Lodge Nursing and Convalescent Home. 230 NLRB 800,
802 (1977), enfd in relevant part 585 F2d 79 (3d Cir. 1978). The Lundy
would never betray their trust by granting conditions of
employment to union-represented employees more beneficial
than those enjoyed by the unrepresented employees." J. P.
Stevens & Co., Inc., 239 NLRB at 763. In view of
Respondent's well known resistance to collective bargaining
and its long history of unlawful conduct in combatting
unions, employees undoubtedly understood Respondent's
message-that unions had been unable to obtain any
improvements at any of Stevens' plants and that selecting a
union at West Boylston would be futile.
In addition to its position that choosing a bargaining agent
at Respondent's facility would be futile, Respondent harped
on the horrors of a strike and its attendant "serious
violence." The speech emphasized not only the necessity of a
strike but also that strikes often end in "serious violence."
No objective grounds were stated for this view and, indeed,
the whole tenor of the speech was that, because of Respon-
dent's intransigence toward collective bargaining, the only
possible way for employees to obtain improved working
conditions with a union was to strike. Furthermore, Grego-
ry's statements concerning loss of jobs through replacement
were misleading, for they failed to indicate that unfair labor
practice strikers generally have a right to reinstatement
despite the hire of replacements and that even economic
strikers have reinstatement rights when openings come
available as replacements leave.'0
Finally, the speech contains a statement that a union
"sooner or later" often brings "serious trouble for all
concerned" as well as other statements about the "trouble"
and "hard times" the Union would bring. This language is a
variant of the "serious harm" notice utilized by this and
other employers which, in the context of other coercive
conduct in an antiunion campaign, has been found to be an
unlawful threat of reprisal. See J. P. Stevens and Co.. Inc.,
157 NLRB 869, 872, 886 (1966),enfd. in relevant part 380
F.2d 292, 302 (2d Cir. 1967), cert denied 389 U.S. 1005.
Thus, Gregory's speech contained the usual litany of
horrors alleged to attend the onset of unionization, which
the Board has found coercive in other cases: The speech
clearly states that Respondent is determined to oppose a
union and will not bargain for more favorable working
conditions, that a strike with its "trouble and tension" is
inevitable and will be unsuccessful because of Respondent's
resistence to collective bargaining, and that, as a result,
strikers will suffer hardship and possibly lose their jobs.
Such emphasis on the futility of bargaining and the inevita-
bility of a strike with consequent loss of employment is the
kind of conscious overstatement condemned by the Supreme
Court in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575,
617-620 (1969), and is thus violative of Section 8(a)(1) of the
Act."
In this context, Gregory's statement at the end of the
speech that conditions could "be improved and corrected"
by "pulling together" rather than "pulling apart" obviously
implied that rejection of the Union would result in improve-
Packing Co.. 223 NI.RB 139 (1976), enforcement denied in relevant part 549
F.2d 300 (4th Cir. 1977); bFour Winds Industries. Inc.. 211 NLRB 542 (1974),
enfd. in relevant part 530 F.2d 75, 78 (9th Cir 1976); Glacier Packing Co..
Inc.. 204 NLRB 597, 598 (1973): Tommys Spanish Foods. Inc.. 187 NLRB
235 (1970). enfd. in relevant part 463 F.2d 116 (9th Cir. 1972).
427
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments. This implication is reinforced by Respondent's
subsequent meetings with employees in which it solicited
and offered to remedy grievances. Gregory's remarks thus
amounted to an unlawful promise of benefits for rejecting
the Union in violation of Section 8(a)(1) of the Act.
Gregory also emphasized that Respondent would learn
the identities of union authorization card signers if they were
called upon to testify at a public hearing. The alleged
concern that the employees had been misled by the Union
into believing the cards would be kept confidential was a red
herring. Neither Gregory in his speech nor Respondent in
this hearing submitted evidence of a union pledge of
confidentiality. On the contrary, the employees, on instruc-
tion from the Union, declared to their supervisors that they
had signed cards in great numbers. Respondent kept a list of
union supporters and already knew who many of the card
signers were. Thus, Respondent's warning that it might
learn the identity of card signers in a Board or court
proceeding, coming in the midst of the Union's card-signing
efforts, strongly suggests that it sought to intimidate card
signers and prospective card signers.
In the context of Gregory's other coercive comments in
the speech, Respondent's other unfair labor practices both
herein and over the past 13 years, the statement carried the
obvious implication that harm or retaliation would result
from disclosure of the identity of the card signers to
Respondent. As the Fifth Circuit has stated: There is "no
reason for informing employees that they might be required
to testify in open court other than to let them know that the
names of union adherents could be ascertained and appropri-
ate reprisals taken." N.L.R.B. v. Finesilver Mfg. Co.. 400
F.2d 644, 646 (5th Cir. 1968). See also J. P. Stevens & Co.,
Inc., 181 NLRB 666, 674-675 (1970); The Lundy Packing
Co., supra.
4. The solicitation of grievances
a. The Skidmore meetings
The day after Gregory's August 16 speech, Respondent
began to solicit complaints from all its employees. During a
series of meetings in mid- and late August on all shifts, with
groups of 10 to 15 employees at a time, Plant Manager
Skidmore, together with Gregory and Personnel Director
King Compton, informed employees that management was
interested in hearing complaints about their jobs. There were
about 30 meetings which lasted some 15 to 20 minutes each.
Respondent took notes of the complaints, and two sets of
notes, one consisting of 18 pages and other of 4, were
admitted into evidence. In addition, many employees testi-
fied about the meetings. It is uncontradicted that these
meetings were unprecedented, as Respondent had never
before gathered employees to solicit complaints or to invite
the airing of grievances.
': The General Counsel, relying on testimony of employee Eulice Griffin,
also alleges that, after his speech, Gregory met Griffin outside the meeting
room and, in response to Griffin's asking him why he had stated that there
would be a layoff if the Union came into the plant, Gregory stated that there
would be layoffs in that event. Gregory testified that he responded to the
question by stating "That's not what I said. The speech does not refer to a
layoff" I find Gregory's testimony plausible. It strikes me as highly unlikely
that Gregory would have lowered his guard and made the direct threat
The grievances included complaints about inadequate
parking facilities, lunchroom facilities, length of breaks,
transfers, sick leave, pay rates for certain jobs, so-called
downtime, writeups for being late because of parking
problems, complaints about supervisors, and many other
matters. After hearing some complaints, Skidmore or anoth-
er official would promise to look into the matter. The
complaints were investigated and many of them were
actually resolved.
Despite Respondent's contention that the onset of the
Union had nothing to do with the meetings, I find that it did.
Skidmore's self-serving remark at the beginning of the
meetings that the Union was not to be discussed is likewise
unpersuasive in showing the reason for the meetings. In
Gregory's speech, the day before the meetings were initiated,
he promised improved conditions if the Union were rejected.
He had emphasized the importance of the union campaign
to assembled employees. Thus, the timing of the Skidmore
meetings supports the inference that the solicitation of
grievances was inspired by the Union's presence. By promis-
ing to attempt to resolve grievances and resolving some,
Respondent implied that grievances could and would be
resolved without the need for a union, thus putting into
practice one of the general themes of Gregory's speech.
Respondent attempted to establish a business justification
for the meetings, based on testimony by Compton and Pete
Green, a corporate official who came to the West Boylston
plant at about this time. Compton and Green claimed that
the machinery in the plant was producing poor yarn,
resulting in customer complaints, and that this was the
reason for the meetings. However, no such reason for the
meetings was given by Skidmore and he did not even testify.
Neither Compton nor Gregory specifically stated that the
meetings were held because of the yarn problem and their
testimony was general and vague. Customer complaints
dated from at least January 1975. Yet Respondent had never
before held such meetings. Nor did Skidmore limit the
subject matter of the complaints he broadly invited, and he
received all sorts of complaints related to wages, hours,
terms, and conditions of employment. Indeed, Respondent
had used the same modus operandi in combatting a union
campaign at its Statesboro, Georgia, plant 8 years before,
and its conduct there was found to be unlawful. J. P. Stevens
& Co., Inc., Gulistan Division, 179 NLRB 254, 259 (1969),
enfd. 441 F.2d 514.
In short, Respondent solicited all sorts of job-related
complaints and grievances and implicitly promised their
correction, not solely for legitimate business reasons, but
rather to convince employees that grievances could be
resolved without the necessity of a union. Such conduct is
violative of Section 8(a)(1) of the Act. See Reliance Electric
Company, Madison Plant Mechanical Drives Division, 191
NLRB 44, 46 (1971), enfd. 457 F.2d 503 (6th Cir. 1972);
Raley's. Inc., 236 NLRB 971 (1978).
attributed to him by Griffin immediately after giving a carefully worded
speech. drafted by counsel, which was pregnant with implications but devoid
of direct threats. Moreover, Griffin's testimony on this point was unreliable.
He was prodded in his response on direct examination and testified that
Gregory's statement to him was the same as his remarks in the speech. There
was no explicit reference to layoffs in the speech. I therefore do not accept
Griffin's testimony and will dismiss the allegation that Gregory made a
separate threat to Griffin in violation of the Act.
428
J. P. STEVENS AND COMPANY, INC.
b. The Green encounters
Pete Green, an industrial relations official from one of
Respondent's South Carolina plants, was sent to the West
Boylston plant in late October by Industrial Relations
Director Joseph Jelks. According to Green, he was to help
resolve "communications" problems between management
and employees and was selected because of his past experi-
ence in assisting local management officials in "employee
relations" during union campaigns. He also helped recruit a
young black man, Leon Irby, who was employed as a weaver
at Green's plant in South Carolina, to work in the personnel
department of the West Boylston plant. They arrived at the
West Boylston facility at about the same time.
According to his own testimony, from the time of his
arrival at West Boylston in late October 1976 until his
departure in February 1977, Green spoke to almost all the
employees-about 300-for short periods at their work
stations. He also met with supervisors and management
officials and occupied an office in the administration
building. As a result of his conversations, he made recom-
mendations for changes in employee relations to local
management. He saw some of his recommended changes put
into effect.
Green testified that he approached employees at their
jobs, introduced himself, and asked how the employees' jobs
were running. He admitted he wanted to determine whether
employees were having problems on their jobs but denied
that he asked employees explicitly if they had problems on
their jobs or what ther grievances were. Green denied that he
mentioned the Union in his conversations or implied that he
was the person who could get things done. If an employee
voiced a complaint, Green said he would reply that he would
"check" into it. Green further testified that he would
sometimes return to the employee and explain why he was
"taking their recommendation" but he did not ask "how
they liked the improvement."
A number of employees-union supporters Shaw, Stroud,
Johnston, Gilliland, Wright, Alvin Carter, and Calvin
Rumph-credibly testified in detail and in a fashion which
was mutually corroborative that Green went further and
actually solicited complaints, talked about the Union, stated
that he was in West Boylston to remedy complaints, that he
was the person to resolve their complaints, and that he
returned and emphasized that he had accomplished im-
provements.
For example, Green approached Grace Shaw at one point,
introduced himself, explained that he had come from South
Carolina and was at West Boylston to make everything "all
right" and to make everybody happy. Green inquired
whether Shaw and fellow employee Helen Frazier had
problems. Frazier complained that longer breaks were
needed. Green responded that this was one of the main
complaints he had heard from employees. Shaw also
suggested that fixers should help move heavy boxes for
women employees. She also mentioned the Union. Green
responded by stating, "I didn't know y'all had a union."
After further discussion, Green asked what good Shaw
thought a union would do. Shaw mentioned that a parking
lot improvement was initiated after the Union came on the
scene. Green countered by stating that the parking lot had
been planned for over a year. Shaw also mentioned the
improved lunchroom. Green stated that Respondent had
been thinking about doing this for some time but had just
obtained the money to remodel. At this point, Green and
Shaw engaged in an exchange about the merits of the Union.
Shaw mentioned the Union's negotiations with Respondent
in North Carolina, and Green told Shaw that negotiations
had gone on for over 2 years but nothing had been
accomplished there.
Approximately 2 weeks later, Green again approached
Shaw and told her that the break system had been changed.
Green also asked Shaw if the fixers were not helping her, as
she had suggested in their first conversation. Shaw replied
that they were. Green then inquired why the employees were
"fighting" against Respondent. Green said that the Compa-
ny and employees could sit down together and that a third
party need not be brought in. Shaw asked Green whether the
benefits granted to employees would be taken back as soon
as Green left West Boylston. Green assured her that this
would not happen and that he had been to three or four
other plants where the employees were just as happy today
as the day he had left their premises. He went on to state
that the Union would promise employees everything, but
that Green's promises were backed by Respondent. He
mentioned that Shaw appeared to be a leader and cautioned
her that he did not want her leading anyone down the wrong
path.
In December 1976 Green and Shaw had another conver-
sation. Shaw complained to Green that on the first and third
shift employees had been hired to remove yarn from boxes
and that Shaw, working on the second shift, had to perform
this task herself. Green responded he would check into this
complaint. Later Green talked to Supervisors Joe Rhoades
and Bobby Ball. He returned to Shaw and informed her that
as soon as a yarn boy could be hired, he would be put to
work on the second shift. Approximately I week later, a
yarn boy was hired to help Shaw.
In October 1976 Pete Green approached Mattie Johnston
at her work station. Green introduced himself and told
Johnston that he was at West Boylston to "straighten out"
the mill and that no outsider could come in and do what he
intended to accomplish. Green asked if any of the supervi-
sors were giving Johnston trouble. Johnston complained
about Mill Overseer Marvin Hicks. Green then called
attention to the new 20-minute lunchbreak and ended the
conversation.
In October 1976 Green approached Ruth Stroud, intro-
duced himself, and said he had been sent to West Boylston
to solve the plant's problems, but could not get anyone to
talk to him. Stroud asked Green why he expected people to
speak to him now, when prior to his arrival the employees
had never been given a chance to speak out. Green then told
Stroud, a union supporter, that she should not let outsiders
come in and solve problems at the plant. He remarked that
Respondent did not intend to let outsiders come in and solve
the problems. At this point Green told Stroud, "[W]ell,
Ruth . . . if only you could see where your yarn's a-going,
and how much yarn is in the warehouse." Stroud inquired
whether Green was telling her that, if outsiders came in to
help solve the plant problems, the plant would then be closed
down. Green replied, "No, no." Stroud remarked that that is
429
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
what she understood from Green's statement. Green again
reminded Stroud that "we just can't let outsiders come in to
solve our problems." Green went on to tell Stroud that any
complaints she might have would be held in strict confi-
dence. Stroud, at this point, related a complaint concerning
the low pay received by a coemployee, Ruth Gilliland.
Green then left Stroud and walked over to where Gilliland
was working and introduced himself. Green asked Gilliland
what her problem was. Gilliland complained about the
condition of her machine and stated that she could not make
production. Gilliland then offered to bring in paychecks to
reflect her problem. Green replied that he would review this
information and would get back with her.
The same day, immediately after the end of the shift,
Green approached Stroud and Gilliland outside the plant.
Green informed Gilliland that he wanted to speak with her
the next day and asked Gilliland to bring in some pay stubs.
Green again inquired as to what the two employees felt was
the problem in the mill. Gilliland replied that Mill Overseer
Marvin Hicks was the problem. Green then inquired if it
would be to the benefit of employees for him to speak with
Hicks and get him to settle down. Stroud said it would not
help and Gilliland said that it might help, but both criticized
Hicks.
The following day, at approximately 10 a.m., Green
approached Gilliland and invited her into his office. Green
informed Gilliland that he had checked the records and that
she was not making as much money as she had in the past.
He informed her that, according to Hicks, Gilliland was not
trying as hard as she could. At this point, Green told
Gilliland, who had earlier declared to Hicks that she
supported the Union, that he could not understand why
Gilliland was going outside for help when he, Green, was the
only one who could help. Gilliland replied by asking Green
if he was afraid to mention "organized labor" because if he
was, she certainly was not. After further discussion about
unions, Green informed Gilliland that he had been appoint-
ed by Mr. Stevens, himself, to go into his plants and "take
care of my people." Green ended the conversation by
emphasizing that he would do the things that he had
promised.
Shortly after Green's conversation with Stroud and
Gilliland, Hicks was removed from his position as overseer
to a position in the quality control department which
involved little or no supervisory work. Green recommended
this change and thereafter he approached several employees
and asked how they appreciated the fact that Hicks no
longer supervised them.
Employee Gracie Wright testified that, subsequent to the
opening of the newly enlarged canteens or lunchrooms, she
and four or five other employees were seated at a table when
Pete Green entered the room. Green addressed the group
asking how they liked the new canteen. When the employees
responded that it was nice, Green asked if there was
anything that could be done to improve the facility. One of
the employees responded that a telephone should be in-
stalled. Green informed the group that he could not promise
a phone, but he would look into the request. Subsequently, a
pay telephone was installed in the lunchroom facility.
After being transferred from a job in mill 3 to a job in mill
I, employee Alvin Carter experienced a problem with
Marvin Hicks. Carter's problem centered on Hicks' harass-
ing Carter because of alleged low production. Because of this
problem, Carter was referred to King Compton, who, in
turn, brought Carter to Pete Green's office. Green intro-
duced himself and asked about the problem with Marvin
Hicks. Carter explained that Hicks was critical of his
production. Carter also stated that he wanted to get back in
mill 3. After listening to Carter's complaint against Hicks,
Green told Carter that he would not have to worry about
Hicks any more and that he should go back to work and do
the best he could.
In January 1977 employee Calvin Rumph sought out
Green in regard to Rumph's impending shift change which
would have interfered with his school schedule. Rumph
talked to Green and Green informed him he need not be
concerned about the shift change as it would not be
implemented. Rumph also complained to Green about a
wage problem. Rumph was not transferred and the next day
was told by his supervisor that he would receive a 15-cent-
per-hour raise.
Respondent does not deny that Green made recommenda-
tions to improve operations at the plant based, in part, on his
conversations with employees which he admittedly initiated
by approaching them at their work stations and asking them
about their jobs. Respondent argues that Green's testimony
concerning his "modus operandi," described above, was
more credible than that of the employee witnesses who
testified about "rank solicitation." Actually, Green's testi-
mony itself supports the inference that, both in purpose and
in effect, his approaches to employees amounted to solicita-
tion of grievances with the implicit promise that grievances
could be resolved by him without the Union. He approached
almost all the employees at their work stations. The
unprecedented nature and timing of Green's appearance at
West Boylston, as well as his euphemistically stated purpose,
support the inference that his efforts were a continuation of
the unlawful solicitation of grievances in the Skidmore
meetings and the implementation of improvements promised
by Gregory in his August 16 speech. Any doubts on this
score are resolved when the credible testimony of the
employee witnesses recited above is considered. They testi-
fied that antiunion statements were intertwined with Green's
solicitation of complaints. To the extent that there are
conflicts in the testimony, I do not credit Green. Much of his
testimony supports the testimony of the employees. More-
over, they testified about Green's conversations in much
more detail than did Green who was not a candid witness.
He was evasive and vague when he was questioned in detail.
Thus, I did not find Green to be a reliable witness, and I find
that his role at West Boylston was to combat the Union, a
fact which he sought to conceal in his testimony.
Based on all the testimony on this issue, including the fact
that Green's appearance at West Boylston to enhance
"communications" was unprecedented and timed in such a
way as to counter a union campaign, I find that Green
solicited and remedied employee grievances to discourage
employees from unionization, in violation of Section 8(a)(1)
of the Act.
In addition, in view of my assessment of Green's unrelia-
bility as a witness, I do not credit his denial that he spoke to
Ruth Stroud about "yarn . . . in the warehouse." I credit
430
J. P. STEVENS AND COMPANY, INC.
Stroud that immediately after Green railed against "outsid-
ers," he cautioned Stroud "if only you could see . . . how
much yarn is in the warehouse." Stroud immediately picked
up the implication of Green's remarks and, despite Green's
denial, it is clear that his words threatened that continued
adherence to the Union could bring economic reprisals in
the form of a plant shutdown. Such a threat violated Section
8(a)(1) of the Act. See N.L.R.B. v. Gissel Packing Co., Inc.,
395 U.S. 575, 617-620.
5. The announcement and grants of benefits
Shortly after the group grievance meetings discussed
above, Respondent made a number of improvements in
working conditions and grants of benefits at the West
Boylston plant. The General Counsel alleges that, particu-
larly in view of their timing, these grants of benefits and
their announcement were made to induce employees to
foresake the Union in violation of Section 8(a)(1) of the Act.
Such grants are unlawful because, as the Supreme Court has
stated: "The danger inherent in well-timed increases in
benefits is the suggestion of a fist inside the velvet glove.
Employees are not likely to miss the inference that the
source of benefits now conferred is also the source from
which future benefits must flow and which may dry up if it is
not obliged." N.L.R.B. v. Exchange Parts Co., 375 U.S. 405,
409 (1964).
The General Counsel has established a prima facie case of
a violation by virtue of the timing of the benefits and
improvements in the midst of a union campaign after
unlawful solicitations of grievances and other unfair labor
practices.
Respondent alleges that the improvements were made for
legitimate business reasons such as fostering employee
productivity or making benefits consistent with those else-
where in Respondent's operations. Some improvements
allegedly were contemplated and decided upon before the
onset of the Union. The first two reasons are not exculpatory
unless they explain the timing of the announcement or
implementation of such improvements. See N.L.R.B. v.
Styletek. Division of Pandel-Bradford. Inc., 520 F.2d 275,
280 (Ist Cir. 1975). The last is no defense unless the benefits
are already existing or the employer had made a final
decision to put the benefits into effect regardless of the union
campaign. See D'Youville Manor Nursing Home, 217 NLRB
173 (1975), enfd. 526 F.2d 3 (Ist Cir. 1975); N.LR.B. v.
Arrow Elastic Corp., 573 F.2d 702, 706 (Ist Cir. 1978). As
the Board has held, in order to rebut the inference of
improper motive or interference with employee rights which
follows from the timing of the announcement or grant of
benefits in the midst of a union campaign, the employer
must show that contemplated changes "were to be made at
this particular time." Litton Dental Products Division of
Litton Industrial Products, Inc., 221 NLRB 700, 701 (1975).
See also Fidelity Telephone Company. 236 NLRB 166, 167
(1978).
I turn now to a discussion of the particular benefits and
improvements.
a. Improved breaktimes and lunchroom facilities
During the fall of 1976 the employees' breaktime was
expanded. Before the expansion, employees were allowed
two 15-minute breaks. The new system provided for two 10-
minute breaks and one 20-minute break per 8-hour shift. A
notice announcing the change was posted on employee
bulletin boards in October or November 1976.
It was also stipulated that, on or about November 1, 1976,
Respondent began renovating its three cafeterias or lunch-
rooms. A notice to this effect was posted on October 28.
Enlargements were made in the lunchrooms of mill 1 and
mill 2 but not in the mill 3 lunchroom. Ceilings and lighting
were lowered in all lunchrooms and air conditioning
capacity was increased in the mill I and mill 2 facilities. All
walls were paneled and new tile floors were installed.
Additional tables and chairs were added in each lunchroom.
Additional vending machines were also placed in each
lunchroom. A pay telephone was installed in at least one
lunchroom.
The evidence is overwhelming that these changes were
made because of the Urion. At the August grievance
meetings and in Green's solicitation of grievances, the
employees had complained about breaks and lunchroom
problems. Green conceded that he was responsible for at
least some of these improvements and, as I have found, he
was sent to the West Boylston plant because of the union
campaign. Respondent has not adequately explained the
timing of the changes in the midst of a union campaign after
the receipt of grievances on the matters which it solicited
unlawfully for the purpose of responding to the union
campaign. Respondent's asserted concern for employee
productivity or welfare does not explain the timing of the
implementation of these benefits. It had operated the West
Boylston plant for 8 years on the two-break system and had
not been concerned about changes in breaktime or in the
lunchroom facilities until the onset of the Union. No other
reason for the timing of the changes appears in the record.
Indeed, Respondent had utilized similar unlawfully imple-
mented benefits to combat the Union in a past union
campaign at its plant in Statesboro, Georgia. See J. P.
Stevens & Co., 179 NLRB at 259. In these circumstances, I
find that the timing of Respondent's announcement and
grant of improved benefits concerning breaktime and new
lunchroom facilities violated Section 8(a)(1) of the Act.
b. The new parking lot
During the August grievance meetings, numerous com-
plaints were voiced by employees about inadequate parking
and acts of vandalism on parked automobiles. On August 26,
1976, a notice was posted announcing the construction of a
new paved parking lot "in the near future." A blueprint of
the proposed lot was also posted. Skidmore also announced
the proposed new parking lot in at least one grievance
meeting with employees. The lot, which accommodated 160
automobiles, was eventually constructed. It was asphalt
paved, lighted and enclosed by an 8-foot chain link fence.
Respondent submitted evidence, through the group man-
ager in charge of West Boylston, Ralph Sullivan, that in
April 1976 Respondent undertook an engineering survey
431
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and in May 1976 drew up blueprints for a proposed new
employee parking lot at the West Boylston plant. Respon-
dent thereafter sought, and, in mid-June 1976, received bids
for the new parking lot. The bids were received into
evidence. By the first of July, according to Sullivan, "the
engineering people" verbally recommended that Alabama
Asphalt Company be awarded the job. In early or mid-
August, verbal approval was given to Sullivan from the
division manager and the general manager-one Shepherd-
and transmitted to local management. The need for a
parking lot for employees had been discussed at Sullivan's
management level on "several occasions" since about April
1975.
The General Counsel has proved, at least primafacie, that
the August 26 announcement of the proposed parking lot, in
the midst of a union campaign and unlawful meetings to
solicit grievances, among which were many concerning the
need for a new parking lot, was calculated to induce
employees to forsake the Union in violation of Section
8(a)(l) of the Act. In addition, there is testimony from
employees that Supervisors Ludlum and Culberson men-
tioned the new parking lot as one of the benefits Respondent
was providing that obviated the need for a union.
Respondent has not established a legitimate business
reason for the timing of the August 26 announcement
concerning the parking lot. Respondent's own evidence
makes clear that, as of July 1, 1976, all the details of the new
parking lot had been reduced to the final decisionmaking
stage. Nothing was done, however, until after the parking lot
problem was brought to Respondent's attention in the
unlawful grievance solicitation meetings in August. Al-
though Sullivan testified that he received verbal approval for
the project in early or mid-August, he apparently was simply
a conduit and transmitted this message to the local manage-
ment. He could supply no reason for the timing of the
approval or the announcement. Respondent submitted no
documentary evidence dealing with approval of the project
in the labyrinthian councils of management, although
documentation of many other management decisions was
provided and obviously available. Of course, the parking
problem was a major complaint voiced in the August
grievance meetings by employees who were supporting the
Union, and it is likely that Respondent timed its announce-
ment of construction of the new parking lot to resolve the
complaints and thereby slow or blunt the drive toward
unionization. In these circumstances, I find that Respondent
has not set forth a legitimate business reason for rebutting
the evidence which shows that the timing of the August 26
announcement of the new parking lot interfered with
employee rights.
c. Insurance and holiday benefits
On September 2, 1976, a notice to all employees was
posted announcing that Respondent had decided "to im-
prove your group insurance program" in accordance with a
"new and improved company-wide program." The notice
continued that "as soon as the provisions of this new
program are worked out, further information" would be
provided. Some 3 months later, the new and improved
insurance program was implemented at West Boylston. At
this point, Respondent held meetings with employees,
complete with slides and pamphlets, to describe in detail the
new benefits and program. Initial deductions from the pay of
employees for premiums under the new plan were made as of
December 9, 1976.
The anticipatory announcement of the new plan was made
at all of Respondent's nonunion plants. Also in the Septem-
ber 2 notice was an announcement of the addition of two
new paid holidays-George Washington's Birthday and
Fourth of July. Previously, these days had been premium
days: an employee who worked on those days received time
and one-half. Prior to the announcement, the West Boylston
plant had only four paid holidays while the rest of the plants
had five. At the time of this change at West Boylston, the
other plants were increased to six paid holidays.
One week later, on September 8, Respondent announced
to employees that "eligibility requirements for holiday pay at
this plant will be improved." The improvement brought the
West Boylston plant into conformity with the eligibility
requirements that had existed in the past at all other
facilities of Respondent.
In view of the timing of these announcements of benefits,
in the context of the union campaign and Respondent's
other unfair labor practices, including the promise of
benefits in Gregory's speech and the unlawful solicitation of
grievances with the implied promise of their resolution, I
find that the announcement of improvements in insurance
benefits, holidays, and holiday pay, was violative of Section
8(a)(l) of the Act. Respondent has not established a
nondiscriminatory and legitimate business reason for the
timing of the announcements.
No details were mentioned in the insurance benefit
announcement and it was 3 months before such details were
announced and the benefits implemented. No explanation
was given for this hiatus. Instead, Respondent simply relies
on the fact that these improvements were corporatewide in
scope. This is not determinative. In this connection, I have
considered the Board's discussion about the insurance plan
in its decision in the Roanoke Rapids case, 239 NLRB 738,
as Respondent suggested. While the issue in that case was
different than that presented here, the Board's Decision in
that case supports my findings in this case. The issue in the
Roanoke Rapids case involved the right of the Union to
information about the plan in the course of bargaining with
Respondent. A document admitted into evidence in that
case, a May 1976 study by Respondent's insurance depart-
ment, states that "the group insurance program provided by
Stevens is not competitive and is very vulnerable to employ-
ee relations problems." I agree with the observation in the
Board's Decision that "[t]his euphemistic reference suggests
Respondent's sensitivity to the Union's ongoing campaign at
its mills and further suggests that many benefits may indeed
have flowed simply from the Union's persistent presence."
239 NLRB at 760.
Thus, the fact that the announcement and improved
benefits were corporatewide does not establish a legitimate
business reason for the timing of the particular announce-
ment at West Boylston. Indeed, it is likely that Respondent's
corporatewide decision on this matter was motivated by a
desire to counter the Union's corporatewide campaign to
organize employees and Respondent's well-known and
432
J. P. STEVENS AND COMPANY, INC.
reported corporatewide hostility towards unions. No other
business reason has been offered by Respondent for the
timing of its announcement or the grant of the improved
insurance benefits. Respondent does argue in effect that
"while strict scrutiny" of grants of benefits during the time
interval between an election petition and an election date
"may be warranted," it is unfair to place an employer "in
confusing peril just because recognition is demanded" and
preclude it from "ever improving its operations." This
argument has superficial appeal and perhaps there is a point
of time beyond which employer improvements do not carry
the inference of illegality which obviously flows from a well-
timed grant of benefits during a union campaign. But the
September announcements are not so attenuated in time
from the union campaign to escape the inference of illegality.
Thus, Respondent has not established a legitimate business
reason for vaguely announcing proposed improved benefits
in the midst of a union campaign which were not explained
in detail or implemented until 3 months later.
Respondent attempts to defend its grant of holiday
improvements by asserting the following business reasons:
(1) Respondent was bringing the West Boylston plant into
conformity with other plants; (2) Respondent was attempt-
ing "keep abreast of its competitors in the labor market";
and (3) the decision was made prior to the union activity at
West Boylston. Again, this argument has superficial appeal,
but the question remains, why the announcement and the
improvements were made in September 1976 in the midst of
a union campaign at West Boylston. Conditions at the plant
were permitted to remain "out-of-synch" with the remainder
of Respondent's operations for 7 or 8 years. Nor was any
documentary evidence submitted to support Respondent's
contentions. Uniformity was a convenient pretext for im-
proving benefits at the West Boylston plant during the
height of a union campaign. Before the announcement, other
plants had five paid holidays while West Boylston had only
four and West Boylston had different eligibility require-
ments. Also revealing is that the announcement to employ-
ees about the holidays and eligibility requirements made no
mention of corporate uniformity or other business reasons
unconnected to the union campaign. In these circumstances,
I find the business reasons for the improvements asserted in
litigation unpersuasive and insufficient to rebut the inference
of illegality established by the timing of their annoucement
and their implementation.
In sum, I find that the September 1976 announcement of
improved insurance benefits and the announcement and
grant of improved holiday benefits were violative of Section
8(a)( 1) of the Act.
d. The new nurses' station
It was stipulated that construction began on a nursing
station at the West Boylston plant on or about October 1,
1976, and was completed on or about November 1, 1976. On
October 25, 1976, a registered nurse was hired to staff the
nursing station from 8 a.m. to 4:30 p.m. daily. This nursing
station provides additional medical supplies and better
treatment facilities than that which previously existed at the
" Although I have found some of the announcements and implementation
of benefits to have been unlawful under Exchange Parts Co., supra, nothing in
West Boylston plant. Among the treatment facilities added
was a pulmonary testing facility, which was added corpo-
ratewide pursuant to compliance with health and safety
regulations concerning dust standards.
The General Counsel relies on the timing of the construc-
tion of the nursing station, coupled with Respondent's
hostility toward the Union, to establish the illegality of the
construction of the nursing station. Respondent alleges,
through the testimony of Pete Green and Otis Little,
divisional industrial relations manager for the division of
which West Boylston was part, that the medical improve-
ments were planned pursuant to a medical surveillance
program, which was initiated prior to the union campaign.
Documentary evidence was submitted to support their
testimony. Clinics were established and staffed with nurses
at other plants beginning in July 1976, pursuant to instruc-
tions from the corporate medical director. Unlike the other
benefits discussed above, this benefit was not prominently
announced in such a way as to confirm its use as an
inducement to combat the Union. There were no complaints
about the lack of a nurse's station in the grievance meetings,
and, although there was a reference to the nurse's station
when Ludlum told an employee of new benefits which
obviated the need for a union, this does not establish an
unlawful or a substantial interference with employee rights
in Respondent's action. The timing of the construction of the
nurse's station at West Boylston was compatible with the
construction of other stations in Respondent's operations,
and the corporatewide concern over employee health prob-
lems and its impact and relationship with the union
campaign was minimal. Respondent has thus persuasively
established a legitimate business reason for the improvement
and its timing which counterbalances any interference such
conduct might have had on employee rights. I find that the
General Counsel has not proved by a preponderance of the
evidence that Respondent's medical improvements at the
West Boylston plant were unlawfully motivated or otherwise
interfered with employee rights in violation of Section
8(a)(l) of the Act.'"
6. Incidents of interference and coercion by Supervisors
Hicks, Ball, and Culberson
Mill Overseer Marvin Hicks interrogated several employ-
ees about the Union. In August 1976 employee Grace Shaw
engaged Hicks in a conversation about the Union. Hicks
asked her how she felt about the Union coming in, and she
replied that she hoped it did not get in. This conversation
occurred before Shaw signed a union card. Hicks denied the
interrogation but confirmed a discussion about the Union
with Shaw. Although his testimony was evasive and some-
what confusing, Hicks attempted to show that his discussion
came within certain instructions given by counsel to Respon-
dent's supervisors. This is unlikely since the conversation
with Shaw took place in August, 2 months before the
instructions by counsel and at a time when, as I have found,
Hicks was encouraging employee Kendrick to engage in
surveillance of union meetings. According to other testimo-
ny, which I credit, by employee Sandra Pate, Hicks also
this Decision should be construed as requiring a rescission of the benefits
already granted.
433
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interrogated her in the course of a conversation, initiated by
him in October 1976, concerning Respondent's opposition to
the Union. Hicks asked her how she felt about the Union.
She declined to discuss the matter with Hicks.
These interrogations violated Section 8(a)(l) of the Act."
In mid-October 1976, Hicks approached employee Ruth
Stroud and engaged her in a conversation about the Union.
He showed her a handbill, which was apparently distributed
at the plant referring to a 2-year strike at the Farah
Manufacturing Company. Hicks said that Respondent was
going to fight the Union's campaign. Stroud answered that
the employees would fight back, and Hicks stated that the
only way the employees would get a union would be to go
out on a "wildcat strike." Stroud and Hicks then continued
to engage in a discussion about the Union.
Hicks admitted that he showed the handbill to Stroud but
testified that all he said about it was that it was erroneous
and that Respondent would do everything legally possible to
keep the Union out. This confirms the substance of Stroud's
testimony. However, I also find, in accordance with the
testimony of Stroud, whom I credit despite Hicks' denial,
that Hicks added that the employees would have to go on
strike to get the Union in at the plant. Such a remark was
not based on objective fact and was obviously injected to
raise fears of reprisal in the listener. Thus, the statement
amounted to a threat of reprisal in violation of Section
8(a)(l) of the Act. N.L.R.B. v. Gissel Packing Co., 395 U.S.
575, 617-620."
A number of employees testified that one day in mid-
August 1976, when prounion employees were distributing
handbills at the entrance to the plant, they observed Shift
Overseer Bobby Ball watching them. Although their testi-
mony is not entirely consistent, it was sufficient to show the
following: (1) Ball observed the employees for several
minutes from inside the front lobby; before the change of
shifts at 2 p.m. (2) Ball was making notations on a pad and
was observed doing this by two employees and (3) at one
point, he came outside, walked to Mill Overseer Marvin
Hicks' red Volkswagen, which was parked across the street
in direct line with the leafleters, and remained in the car for
several minutes, then walked back into the plant. Ball
conceded points (1) and (3) in his testimony and admitted he
may have been carrying a pad on a clipboard, but denied he
was copying down names while watching the employees
from the door. As to point (1), Ball claimed he was waiting
for an employee who was late for work. As to point (3), Ball
claimed that Hicks had asked him to move the Volkswagen
to a better location but that, when he went to the car and
started the engine, he was unable to put it into reverse and
'o Pate's testimony concerning the remainder of the conversation between
her and Hicks is too ambiguous for me to make a finding of an additional
violation of Sec. 8(aX I) as alleged by the General Counsel.
" Aside from Hicks' general unreliability as a witness, his testimony on the
Stroud matter is unbelievable. He testified she was the only employee he
approached about the handbill and that "[slhe didn't say anything." From
observing Stroud's demeanor, I am quite sure that she engaged in a discussion
with Hicks about the matter as she testified. Hicks conceded "Is]he talks a
lot."
'" I do not find that Ball's conversation with Eula Mac Stabler in late
September or October 1976 amounted to a violation of Sec. 8(aX)) as alleged
by General Counsel. Stabler's testimony is ambiguous. I find it likely that Ball
was simply responding to a union circular in the manner suggested by
left without moving the car. He went back into the plant and
returned the keys to Hicks.
I reject Ball's story, which was not corroborated by Hicks,
as implausible. In addition, I did not find him generally to be
a candid or reliable witness. Ball demonstrated an embar-
rassed demeanor and a nervous laughter while testifying.
Moreover, the employees' version of the events is confirmed
by the contemporaneous conduct of Hicks and Ball in
encouraging the surveillance of union meetings by employee
Kendrick.
Although Ball's conduct in observing prounion employees
while they were engaging in union activity on Respondent's
premises was not in itself unlawful surveillance
(Chemtronics, Inc., 236 NLRB 178 (1978)), his conduct in
writing what appeared to be their names on a pad was
unlawful. This conduct created in the minds of the employ-
ees the impression that their names were being noted in a
manner useful for future discrimination. There was no other
reason for taking down names of those engaging in union
activity, and it is a natural inference that Ball was writing
the names of the employees. Such conduct is violative
Section 8(a)(1) of the Act.'
In October 1976, Mill Overseer Robert Culberson ap-
proached employee Willie McCall and engaged him in a
conversation. He asked McCall what he thought about the
Union. McCall replied it was all right, ad Culberson asked
why. McCall responded that the Union could help improve
conditions at the plant. Culberson answered that the Union
was not good and that employees would pay out money
without anything coming in. He also stated that Respondent
would not negotiate with the Union and that there would
not be a union.
Also in October, Culberson approached employee Charles
Gullatte and mentioned that Gullatte had signed a union
card. He told Gullatte that the Union was not good, that it
would get Gullatte to go out on strike, and leave him there.
He also stated that in "years to come," Gullatte would be
getting benefits, such as 2-weeks paid vacation, more paid
holidays, and that a new lunchroom and a new parking lot
were being built.'
Culberson's remarks to McCall and Gullatte violated
Section 8(a)(1) of the Act because they included () coercive
interrogation, (2) a statement of the futility of choosing a
union because of Respondent's intransigence toward collec-
tive bargaining, (3) a promise of benefits implicitly based on
rejection of the Union, (4) a threat of reprisal based on
alleged strike action which was not based on objective fact
but implicitly would be caused by Respondent's opposition
to collective bargaining."'
Respondent's counsel in a meeting with supervisors and that Ball simply
stated that Stabler should not talk as if the Union were already voted in.
" This is based on the testimony of McCall and Gullatte whom I found to
be credible witnesses. Culberson denied these conversations took place, but I
found him to be a thoroughly unreliable witness based on his testimony
concerning the discriminatory harassment of leading union advocates.
" I would dismiss an additional allegation of Sec. 8(aXI) concerning a
conversation between Culberson and employee Carl Wilson based on Wilson's
testimony. I did not find Wilson's testimony to be reliable on this point. He
seemed to have confused the antiunion statements of Gregory and Culberson
and was prone to exaggeration, as shown by his testimony on cross-
examination.
434
J. P. STEVENS AND COMPANY, INC.
In late December 1976, Patricia Hughes, who had worked
for Respondent before, called Culberson about working for
Respondent again. They apparently had two conversations
either on the same day or on consecutive days. In the first
conversation they talked about Hughes' back problem which
had caused her to leave Respondent during her earlier
employment and about the Union. Culberson testified that in
their first conversation Hughes brought up the Union and
promised not to sign a union card, after which Culberson
said that was her privilege. Hughes testified that Culberson
brought up the Union. He asked if she knew that the
employees were trying to get a union into the plant and how
she felt about it. Hughes said she would have nothing to do
with it and that he would not have to worry about her
signing a union card. Culberson testified that, after their first
conversation, he checked with Compton and called Hughes
back to tell her she was hired.
I credit Hughes' testimony that, in the first conversation,
Culberson brought up the subject of the Union and asked
her questions about it. Respondent makes much of the fact
that Hughes was confused in her testimony as to whether the
Union was mentioned in the first conversation or the second.
Although in part of her testimony, particularly on direct, she
seemed to say that it was brought up in the second, she
corrected this on cross-examination. It is clear from Culber-
son's testimony, however, that the Union was mentioned in
the first conversation. This confusion on Hughes' part does
not detract from her veracity; she impressed me as a candid
witness. The substance of her testimony-that Culberson
brought up the Union-is consistent with Culberson's
approaches to other employees. On the other hand, Culber-
son's testimony-that Hughes brought up the Union-is not
consistent with my assessment of Hughes' demeanor. She
did not impress me as the type of person who would have
volunteered statements about the Union. Finally, Hughes,
who was employed at the time, was testifying against her
employer about a matter which was particularly difficult for
her. She had told Culberson she was against the Union when
she was hired but had subsequently become prounion.
Culberson's interrogation of Hughes about the Union, in
the context of her application for employment, was coercive
and violative of Section 8(a)(1) of the Act.
7. Incidents of interference and coercion by Leon Irby
In late October 1976, Leon Irby was hired to work in
Respondent's personnel office. He was to be directly
responsible to Personnel Director King Compton. Plant
Manager Wilton McGowan testified that Irby was training
"hopefully" to fill a spot similar to Compton's and that he
does "some" of the same things Compton does. According
to uncontradicted testimony-Irby did not testify-Irby had
a number of conversations with employees about the Union
and about job-related matters. Some of these conversations
are alleged by the General Counsel to have violated the Act.
Respondent defends solely on the ground that Irby was not a
" The General Counsel urges in his brief that I make unfair labor practice
findings of solicitation of grievances based on this testimony even though the
allegation was not contained in the complaint. I am not convinced that the
issue was fully litigated. Although Respondent's counsel cross-examined the
witnesses. I cannot say that they did so on the assumption that the testimony
supervisor or agent of Respondent as alleged by General
Counsel. I turn first to this issue.
It is clear from the testimony of Compton and Pete Green
that Irby was hired for the personnel office, in part, because
he was black and would satisfy affirmative action require-
ments. He worked as a weaver at Respondent's Victory plant
in Greer, South Carolina, the same plant where Green
worked. Irby is carried at the West Boylston plant as a
college trainee even though he has never been to college. He
is paid on a salary basis but punches a timecard and is paid
for overtime past 40 hours per week. Irby shares an office
with Betty Dekle, another employee in the personnel office,
and, to some extent, their duties are interchangeable.
However, Dekle, an employee with 7 years' experience, was
paid about $670 per month in late 1976; Irby was hired on
October 26, 1976, at a salary of $9,500, an amount
considerably greater than the earnings of Dekle. According
to Compton, Irby's responsiblities include the filing and
handling of personnel records, interviewing job applicants,
checking references, supervising completion of necessary
forms, and reading an orientation statement, which con-
tained Respondent's position on unions, to new employees.
Irby also reviews employment records with employees and
conducts exit interviews.
The uncontradicted testimony shows that Irby ap-
proached some employees on their jobs, introduced himself
as assistant personnel director or some similarly descriptive
title, asked them if they had job-related problems, and told
them that he had been sent to West Boylston, along with
Pete Green, to resolve their problems before a union got in.
He told one employee, "If the supervisors want you to forget
about the Union, then they are going to have to start treating
you better." It is obvious from the coincidence of their
arrival at West Boylston, from the fact that both Green and
Irby came from the same plant in South Carolina, and from
Green's role in recruiting Irby, that Irby was brought to the
West Boylson plant to act on Respondent's behalf to combat
the Union. From these facts, plus Irby's larger salary than
Dekle, it is plain that Respondent placed Irby in a position
vis-a-vis employees, particularly black employees, so that his
apparent authority to act on Respondent's behalf could
fairly be implied. Respondent placed Irby in a "strategic
position" where employees could reasonably believe that
Irby spoke on its behalf and reflected Respondent's policy,
and thus Irby is an agent of Respondent within the meaning
of Section 2(13) of the Act. See Samuel Liefer and Harry
Ostreicher, a Copartnership, d/b/a River Manor Health
Related Facility, 224 NLRB 227, 235 (1976); Community
Cash Stores. Inc., 238 NLRB 265 (1978).
Several employees testified that, in the period from
December 1976 to about March 1977, Leon Irby spoke to
employee applicants and new employees about the Union
and read them an orientation statement concerning Respon-
dent's position on unions. He asked employee Freeman at
his employment interview in January 1977 if he was for the
Union, and Freeman said he was against it. Employee
Hughes also testified about a conversation she had with Irby,
on direct was being alleged as an unfair labor practice. The cross-examination
seemed to be addressed to the agency-supervisory issue. In these circum-
stances. I cannot make a finding of a violation without impinging on
Respondent's due process rights.
435
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in about March 1977, in which Irby asked her how she felt
about the Union and she said she wanted nothing to do with
it. He also asked if any one had pressured her to sign a union
card, and she replied in the negative. Irby also said that if
anyone pressured her about signing a union card to let a
supervisor know and the supervisor would stop the pressure.
Employee Hazel Oates testified that she was interviewed by
Irby when she went to work on December 7, 1976. Irby told
her not to sign a union card because Respondent was not a
union facility. She said he did not have to worry about her
signing a card because she would not. Irby then said if she
signed a card "they would probably be on your back all the
time." She testified that Irby was not reading from a
document. In late February or early March, Irby also met in
his office, which was next to Compton's, with employee
Alpheus Murray for a "review"-type of meeting. Irby told
Murray that he had received a good job evaluation and that
he should keep up the good work. Irby then asked if Murray
had heard "about the Union cards." Murray stated he had,
and Irby asked if he had signed one. When Murray said he
had, Irby responded "I told you J. P. Stevens was not
union.""
Based on the above conversations between Irby and
employees Freeman, Hughes, Oates, and Murray, which
involved more than simply reading from a written orienta-
tion statement, I find that Irby interrogated employees about
their union activity, threatened an employee with harass-
ment if she signed a union card, and asked an employee to
report to management whether prounion employees were
pressuring her to sign a union card, all in violation of Section
8(a)(1) of the Act. See Poloron Products of Mississippi, Inc.,
217 NLRB 704, 707 (1975).
8. The union orientation statement
It is undisputed that on a number of occasions from July
1976 until January 1977, the following written orientation
statement was read to new employees--and on at least two
occasions to veteran employees Grace Shaw and Calvin
Rumph-by an agent of Respondent, either Compton, Irby,
or Betty Dekle:2'
COMPANY POSITION ON UNIONISM
J. P. Stevens & Co., Inc., is a non-union company,
and Management prefers to deal directly with its
employees and not with an outside third party. It is not
necessary, and it is our intention that it will never be
necessary, for any employee to belong to any union in
order to work for this company.
Those who might join or belong to any union are not
going to get any advantages or preferred treatment of
any sort over those who do not join or belong to a
union.
No person will be allowed to carry on union
organizing activities during working time. Anyone who
does so and who thereby neglects his own work or
D, Freeman and employee Martha Ross testified as to other statements made
by Irby and Compton which I believe, based on their entire testimony, were
read from the written orientation statement.
A Sometime in January 1977, according to Compton, a new orientation
statement was put into use. A copy of the new orientation statement was
interferes with the work of others will be subject to
discharge.
It is and has always been the policy of Stevens to deal
fairly with its employees as individuals. The Company
feels that it is to the best interest of its employees for
them to deal directly with Management without having
to handle their problems through a union. The Compa-
ny is also convinced that unions tend to bring trouble,
controversy and discord, and that unionization would
not work to the benefit of Stevens' employees but to
their serious harm.
It is Stevens' positive intention to oppose unionism
and by every proper means to prevent unions from
coming into this Company.
This statement, particularly its reference to the "serious
harm" that might befall employees if they chose a union, is
little different from the notice which was posted by Respon-
dent 15 years ago in an antiunion campaign in North and
South Carolina and condemned by the Second Circuit Court
of Appeals in J. P. Stevens & Co., Inc. v. N.L.R.B., 380 F.2d
292, 302-303, cert. denied 389 U.S. 1005. In view of
Respondent's other unfair labor practices, its history of
antiunion activity, and the fact that the statement was
primarily read to new employees by a personnel official in
his or her office, obviously a setting conductive to coercion, I
find that the statement constituted a veiled threat of
retailiation which was not fairly attributed by Respondent to
factors beyond its control. This notice did not even have the
qualifying language of serious harm "in the long run" which
might have rendered the message more subdued. See
Amalgamated Clothing Workers of America, AFL-CIO
[Sagamore Shirt Co. d/b/a Spruce Pine Mfg. Co.] v.
N.L.R.B., 365 F.2d 898, 909-910 (D.C. Cir. 1966).
9. The speeches of Plant Manager McGowan on the
eve of the hearing
The General Counsel alleges that a speech made on
several occasions to all employees in small groups by Plant
Manager Wilton McGowan in July 1977, shortly before the
beginning of this hearing was unlawful." McGowan basical-
ly read the speech from outlined material set forth on index
cards. Generally, the speech dealt with Respondent's view,
expressed by McGowan, that the complaint allegations in
this case were false, that the Union was not entitled to
bargaining rights, and that the allegations would have to be
proved in court. Obviously, the speech cast Respondent in a
light most favorable to its position.
Specifically, the General Counsel alleges that in the
speech McGowan stated that Respondent would learn at the
hearing the identity of employees who signed cards and who
made allegations of unfair labor practices against Respon-
dent, which he said were false, because those employees
would have to testify in open court. I agree that by these
statements-in view of Respondent's other unfair labor
practices both in this case and in others-Respondent
received into evidence, but the General Counsel has not alleged that the new
orientation statement is unlawful.
" McGowan replaced Skidmore as plant manager in or about February
1977.
436
J. P. STEVENS AND COMPANY, INC.
created in the minds of employees the fear of reprisal for
those who reasserted protected rights by testifying against
Respondent's interests in a Board proceeding.
McGowan pointed out that one of the issues in the
litigation would be whether the Union had obtained a
majority of signed authorization cards. He accurately stated
the legal principles underlying the bargaining order remedy
of Gissel Packing Co., supra, and added:
All union cards signed by employees will be intro-
duced into evidence [any employee whose card is
introduced will be subpoenaed to testify under oath] by
either the Government, the union or the company as to
whether they did sign the card and what led them to
sign that card.
Now at this point I don't know how many cards have
been signed and I am certainly not trying to find that
out from you. We will find this out when the hearing
starts and these cards will be introduced into evidence
and we are provided with a copy of these cards, but
regardless of how many cards are signed still the union
cannot get in unless it is proved that the company has
committed these serious and substantial violations of
the laws as mentioned earlier.
I am fully convinced that the union cannot prove
this."
Respondent alleges that the references in the McGowan
speech were to the number of union cards and not the
identity of the card signers. I disagree. The emphasis in the
quoted passages, as well as elsewhere, on the fact that the
employees would be required to testify in person made it
clear that the names of the employees who signed cards
would become known as well as what "led them to sign that
card." In a similar speech year earlier by Plant Superinten-
dent Gregory, Respondent impressed on employees that
Respondent would learn the identity of the card signers and,
in view of its other unfair labor practices, it may fairly be
inferred that employees would receive the same message on
the eve of the trial. As in the Gregory speech, there was no
reason for McGowan to emphasize that the card signers
would be required to testify under oath and thereby reveal
themselves to Respondent. If Respondent wanted to empha-
size its view that the Union had not achieved a majority, it
could have stated this simply and without elaboration.
Instead, Respondent used the words, "we will find out," in
discussing the requirement that cards would have to be
identified and introduced into evidence at the hearing. As
the Supreme Court stated in Gissel Packing Co., supra,
employees are capable of picking up "intended implications"
of an employer's language which might be dismissed by a
"more disinterested ear." 395 U.S. at 617. In these circum-
stances, Respondent's words had the tendency to coerce
employees by implying reprisals against those employees
who identified their cards at the Board hearing.
It might be argued that the McGowan speech simply and
truthfully alerted employees to the reality of litigation-that
cards which have already been signed must be identified in
' McGowan essentially gave the speech on the witness stand, reading from
his notes on index cards which were also received in evidence. His testimony is
slightly different than what appeared on his index cards, The bracketed
court-and that this fact distinguishes the McGowan speech
from the earlier Gregory speech which inhibited the actual
card signings themselves. This is a distinction without a
difference. Respondent's position effectively required that
card signers identify their own cards at the hearing.
McGowan stated that "every employee" who signed a card
would be subpenaed; most did testify. The fact that a card is
signed is utterly useless unless it can be utilized to accom-
plish its purpose. Thus, the employees' identification of their
cards simply constitutes a reaffirmation of their original
protected activity in signing the card. The impact on
employees is the same in the McGowan speech as in the
Gregory speech, except that a reminder of the sort men-
tioned by McGowan also tends to interfere with Board
processes because it inhibits employees from testifying freely
about their protected activity as the statute contemplates.
McGowan also emphasized that Respondent believed that
unfair labor practice allegations against its supervisors were
false and that it would learn the identity of employees who
made these false allegations at the hearing and that these
employees would have to be subjected to cross-examination
by Respondent. Here again, McGowan said he did not know
"who" made the false claims but "we will find this out when
the hearing starts." There was no reason for Respondent to
emphasize that a complaining employee's identity would
become known at the hearing unless it intended to create
fear in the minds of employees that Respondent would
retaliate against employees who testified. The inference is
not remote in view of the numerous incidents of retaliation
against employees found in this case. McGowan's remarks
thus tended to inhibit those employees who had asserted that
Respondent had interfered with their Section 7 rights by
inhibiting their vindication of these rights by their testimony
at a Board hearing.
In these circumstances, I find that McGowan's statements
that Respondent would learn at the hearing the identity of
union card signers and of those who made allegedly false
accusations of unlawful conduct against Respondent tended
to create a fear of retaliation in the minds of those employees
who identified themselves in such manner. The statements
violated Section 8(a)(l) of the Act because they interfered
with the reassertion by those employees of their protected
activity.
10. Miscellaneous allegations of supervisory interference
and coercion
Sometime during October 1976, Supervisor Joe Ludlum
was engaged in a conversation with employee Patricia Ruth.
He told her that he had been asked to talk to employees
about the Union and that the Union's promises were just a
bunch of "bull" and could not be kept. He also stated that
Respondent did not have to agree to anything. Ruth asked
Ludlum what he meant by the last statement: "You mean
sentence comports with the cards and makes more sense grammatically than
his testimony.
437
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you won't have to sign a contract?" Ludlum responded,
"Right, we don't have to sign a contract and we won't.""
Ludlum's statement that Respondent would not sign a
contract with the Union suggested to an employee the
futility of engaging in protected activity because of Respon-
dent's opposition to bargaining with the Union under any
circumstance-a statement perfectly compatible with the
suggestion made in the Gregory speeches in August.
Ludlum's remarks constituted an independent violation of
Section 8(a)(l) of the Act.
Sometime in October or November 1976, Personnel
Director Compton and employee Ruth Stroud engaged in a
conversation outside the plant about production problems
and particularly the treatment of a friend of Stroud's. Stroud
then asked whether Compton knew she was "for the union."
Compton said he did not and that he was surprised.
Compton stated that he did not know how a union could
help. Stroud then asked if Compton would not fight for
something he believed in. According to Compton, his reply
was: "yes, I certainly don't need that kind of dissension right
now with a million pounds of yarn in the warehouse."
According to Stroud, his response was simply "yes, but if
only you could see that 18 thousand pounds of yarn that
we've stocked in the warehouse." Stroud immediately
questioned Compton about the remark, asking if "we're
ready to go on short time or you're going to close the mill."
According to Stroud, Compton replied "Oh, no we'll run as
long as we've got orders." Compton's testimony is that he
responded by saying, "No, that's not what I mean. As long
as we have orders, we'll run the mill." The conversation then
ended.
Stroud and several other employees testified credibly that
talk concerning the warehouse being "full of yarn" normally
meant that employees were going on "short time" or being
laid off pursuant to a plant shutdown.
Whichever version of the Compton-Stroud encounter is
accepted, it is clear that Compton initiated the notion that
the warehouse was full of yarn in response to Stroud's
statement of union support. He identified the union effort as
amounting to "dissension." And the warehouse being full of
yarn was a well-understood code for economic troubles
which Compton clearly tied to the Union "dissension" and
not to economic consequences beyond Respondent's control.
Relying on Compton's testimony on a completely different
issue to the effect that he had never seen as much yarn
returned from customers as he had during the time of the
Skidmore meetings in August 1976, Respondent argues in its
brief that Compton's comments to Stroud had some legiti-
mate basis in fact. This is indeed a slender reed upon which
to justify Compton's comments to Stroud. He did not testify
that this is what he meant by the remark which I have found
was a code for some kind of layoff of employees. Nor did
Compton's response to Stroud's correct and candid reaction
" The above is based on Ruth's credible account of the encounter I
discredit Ludlum's denial based on my assessment of his unreliability as a
witness discussed elsewhere in this Decision.
"' See Passavant Memorial Area Hospital. 237 NLRB 138 (1978).
z" The above is based on the credited testimony of Griffin. She impressed me
as a candid witness whose substantive testimony was truthful. I reject
Gallander's denial that he had any such conversation with Griffin. He seemed
to be evasive in testifying about the backdrop for the conversation with
Griffin.
2' Supervisor Sellars testified that Watkins was the spokesman r the
employees.
to Compton's statement operate as a valid repudiation:' to
vitiate its obvious impact, i.e., that union activity could
result in a plant closure or a layoff. Compton's remarks were
obviously the kind of "conscious overstatements" which the
Supreme Court condemned in N.L.R.B. v. Gissel Packing
Co.. Inc., 395 U.S. 575, 620.
In these circumstances, I find that Compton's remarks to
Stroud amounted to a threat of economic reprisal in
response to union activities in violation of Section 8(a)(l) of
the Act.
In the spring of 1977, Lamarlas Griffin was warned on
several occasions because of her poor attendance by Supervi-
sor Jerry Gallander. On one such occasion in May 1977,
Gallander approached Griffin and told her if she missed
another night, he would have to let her go. Griffin replied,
"Well Jerry, if you fire me-I'm going to draw my
unemployment. If you give me a hard time, I'm going to go
to the union lawyer." Gallander responded, "Well, if you go
to the union lawyer and you ever want to come back to work
out here-they'll make it so hard on you that you'll have to
quit." Griffin, thinking that Gallander was joking, said,
"they wouldn't make it any harder on me than I let them." 2'
Gallander's remarks to Griffin, even though perceived by
her as a joke, amounted to a threat of reprisal for supporting
the Union and, in the context of Respondent's other unfair
labor practices, cannot be dismissed as isolated or not
capable of being implemented because they were uttered in a
joking manner. Griffin was eventually discharged, and other
employees suffered the consequences of Respondent's dis-
crimination both in their terminations and in their attempts
to be rehired. I thus find Gallander's remarks to constitute a
threat of reprisal violative of Section 8(a)(1) of the Act.
On the same day that employee Jimmy Lee Watkins and
other employees declared their union support to their
supervisor, in August 1976.2' the general overseer of the
shipping and receiving department, Clyde Davenport, ap-
proached Watkins and asked him why he supported the
Union. Davenport told Watkins that the Union could not
make Respondent do any more than it wanted to do. He also
suggested that before Watkins joined the Union, he should
check with older employees because they had been "burned"
by the Union once before. Davenport also asked why
Watkins was joining the Union and whether Davenport did
anything to cause Watkins to support the Union. Watkins
replied that Davenport was not responsible for this turn of
events.2"
Davenport's remarks amounted to unlawful interrogation
violative of Section 8(a)(l) of the Act.
In early September 1976, employee Bessie Ross was asked
to report to Baggett's office. Baggett informed Ross that her
production was down and asked her what the problem was.
Ross took issue with Baggett, telling him that she thought
she was making production. Baggett then discussed the
:' The above is based on the credible testimony of Watkins. His testimony
withstood cross-examination and was corroborated in part by employee
Abraham Smith. who testified to a similar conversation in which Davenport
asked him to check with older employees before supporting the Union.
Furthermore, Watkins was a veteran employee who had been recommended
by Davenport for a leadman's job a few months before. This factor gives
meaning to Watkins' testimony that Davenport would have felt that Watkins'
union support was a personlal affront to him and thus singled him out for
proselytizing.
438
J. P. STEVENS AND COMPANY, INC.
Union with Ross, telling her that Respondent had good
insurance, and that the Union was not wanted, and that he
was against the Union. Baggett also said that the Union
would not change things at Respondent. Ross informed
Baggett that she supported the Union after she signed her
union card in August 1976.
Baggett confirmed that he had a conversation with Ross
in early September about her production. Baggett claimed
that the conversation took place at Ross' job and not in his
office. He denied that any discussion of the Union took place
during this conversation.
I credit Ross' testimony that in the conversation-wher-
ever it occurred-Baggett made remarks to the effect that
supporting the Union would be futile because of Respon-
dent's opposition. Ross was a candid witness, and I found
Baggett's testimony to be unreliable elsewhere in this
decision. Baggett's remarks concerning the futility of union
representation were consistent with remarks made in the
Gregory speech and were thus violative of the Act.2
C. The Allegations of Discrimination
As shown below in more detail, I find that the General
Counsel's allegations of discrimination have been proved as
to 12 prounion employees and that the allegations as to I I
others have not been proved by a preponderance of the
evidence.
D. The Violations
In assessing the evidence concerning the allegations of
discrimination, I have considered, as background, Respon-
dent's campaign of coercion and its union hostility, both as
expressed generally in the reported cases and in the
numerous violations of Section 8(a)(X) of the Act committed
at West Boylston. I have also considered evidence that much
of the union activity at the West Boylston plant was open
and generally observed by supervisors. Despite denials on
the part of some supervisors that they knew the union
affiliation or activities of specific employees, I find, as a
general matter, that Respondent did know the union
affiliation of the alleged discriminatees. I will discuss the
specific evidence in more detail in connection with each
allegation, but I note here that most of the prounion
employees identified themselves as union supporters, some
passed out union literature both inside and outside the plant,
talked about the Union with their coworkers, and passed out
union cards in the plant. In addition, Respondent kept a list
of union supporters, which was not exclusive, but, in some
cases, conclusively demonstrates union knowledge. An
example of Respondent's denial of union knowledge is Mill
Overseer Culberson's incredible testimony that he did not
know that the leading union activist in the plant, Willie
Townsend, was "in the union" until one occasion when
I do not credit the testimony of Charles Gipson concerning an alleged
interrogation concerning his union sympathies in March 1977 by Supervisor
Joe Rhoades. Gipson's testimony was inherently implausible and lacking in
any rational context for Rhoades' alleged approach to him. I do not credit the
testimony of Eulice Griffin concerning an alleged threat made to him by
Supervisor George Luster. Griffin's testimony was confusing, and, in any
event I found him to be an unreliable witness. Finally, I found the
uncorroborated testimony of Ralph King too ambiguous upon which to make
Townsend "brought that lady up there and told me to stay
off his ass about the union"--an obvious reference to an
incident which took place in December 1976. Townsend
acted as the spokesman for a number of employees who
declared their union support to Ron Talley, a supervisor
directly under Culberson, in early August. Thereafter, both
Talley and Culberson monitored Townsend's almost every
move. Yet, although he tried to downplay his concern about
union activity at the plant, Culberson grudgingly testified on
cross-examination that he knew employees were engaged in
union activity because "they would come in and sit around
and issue out papers and stuff and I knew something was
going on in there like that." He also testified that the
employees would have "papers and stuff' on "the tables and
in the bathrooms"; and that he heard the employees "saying
things" about the Union. Culberson's testimony as to lack of
specific knowledge of Townsend's union activities was
emulated in the equally evasive testimony of some of the
other supervisors who denied knowledge of open union
activity. In these circumstances, I shall find that, where
there is credible testimony that employees openly engaged in
union activity at the plalt, this activity was known by
Respondent, whose supervisors met at least weekly during
this period.
In analyzing the circumstances of each of the allegations, I
have also considered the timing of the discharge or other
discipline with respect to the union campaign and the
employee's participation in it, the inherent probabilities of
the discipline in view of the alleged offense, and similar
offenses by other employees before and after the union
campaign. Neither the existence of a valid rule for disciplin-
ing an employee nor the violation of a particular rule or
policy is dispositive on the issue of discriminatory motive.
The question is the real reason for an employer's personnel
decision. That the evidence of discrimination may be
circumstantial is, of course, not determinative. Direct
evidence of such violations is rarely obtainable and, as the
Fifth Circuit Court of Appeals has recently reiterated:
Today the employer seldom engages in crude, flagrant
derelictions. Nowadays it is usually a case of more
subtlety, perhaps the more effective, and certainly the
more likely to escape legal condemnation.
N.L.R.B. v. Aero Corp., 581 F.2d 511, 515 (1978), quoting
from N.L.R.B. v. Neuhoff Bros Packers, Inc.. 375 F.2d 372,
374 (5th Cir. 1967).
Finally, I have considered the reasons offered by Respon-
dent and its officials in support of its personnel actions and
whether those reasons were convincing or pretextual. Thus,
when "the reasons advanced [by an employer] are not
persuasive, the [protected or union activity] may well
disclose the real motive behind the employer's action."
N.L.R.B. v. Melrose Processing Co., 351 F.2d 693, 699 (8th
Cir. 1965). And it is well settled that where the trier of fact
a finding that Supervisor Jimmy Minor threatened plant closure and
economic retaliation if a union obtained representation rights. The weight of
the evidence was that another employee mentioned the possibility of a plant
closure because of a union and that Minor corrected her and said that this
could be done only for economic reasons. Therefore, I shall dismiss the
complaint allegations of 8(aX i) violations based on the above testimony.
Other alleged 8(a)X) violations were dismissed at the end of the General
Counsel's case because of insufficient supporting evidence.
439
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
finds that an asserted motive for discharge is false he can
infer that there is another motive and that motive is one
which the employer desires to conceal-an unlawful motive.
See Best Products Co., Inc., 236 NLRB 1024 (1977), quoting
from Shattuck Denn Mining Corp. (Iron King Branch) v.
N.L.R.B., 362 F.2d 466, 470 (9th Cir. 1966).
I now turn to the individual allegations.
I. Willie Townsend
The General Counsel alleges that Respondent discrimi-
nated against employee Willie Townsend by issuing nine
warnings against him from August 12, 1976, the day
Respondent listed his name as a union adherent, until
February 9, 1977. Townsend has been employed since 1966
as a fixer or section man. Respondent describes him as a
head overhauler or winder-technician. Respondent concedes
that Townsend is an employee within the meaning of the
Act. His job involves the repair and upkeep of autowinder
machines. He worked in mill 2 on the first shift with two
other fixers or section men, Cecil Ross and James Mann.
The general overseer in mill 2 was Robert Culberson and the
shift overseer on the first shift was Ron Talley.
In Townsend's 10 years of employment-7 or 8 under
Respondent-he had received no written warnings until his
declaration of union support. He had been commended
occasionally by Robert Culberson for doing good work. He
was a valued and skilled employee who had been sent by
Respondent to a special training course conducted by the
Leesona Corporation in the operation and repair of automat-
ic winding machines. Culberson conceded he was a "real
good" employee.
Townsend was probably the leading union spokesman at
the plant. He signed a union card on August 11, 1976. He
distributed and obtained authorization cards from other
employees. He passed out union leaflets at the plant on four
occasions before the beginning of his shift and he also passed
out notices of union meetings inside the plant.
Townsend's union activity was widespread and open.
Employee Velma Tanner, an antiunion employee who was
called as a witness by Respondent, testified that she observed
Townsend talking to employees about the Union. She
testified:
Well, I've seen him when the other shifts changed,
when they would be blowing off ready to go home, he'd
go over there with a pencil and paper and he was giving
them cards and they were signing them and he was
sticking them in his pocket.
She testified that supervisors could see this activity.
Tanner also testified that she understood that Townsend
was the "spokesman" for the Union, a description which is
supported by the testimony of Shift Overseer Talley. Talley
testified that Townsend was the spokesman for a group of
about eight employees, including himself, who identified
themselves for the Union, probably on August 12, the day
Townsend's name was placed on Respondent's list of union
supporters.
On Labor Day weekend in 1976, Townsend attended a
union rally in Roanoke Rapids, North Carolina, the site of
another of Respondent's operations whose employees were
bargaining through the Union. At the rally, Townsend
obtained a union pin which he wore on his cap on the day he
returned to the plant. Upon clocking in, Townsend noticed
Talley looking at the pin. Townsend took off his hat and,
pointing to the pin, told Talley that the pin identified the
employees' union. Talley questioned whether the employees
had a union, and Townsend replied that they did.
Despite Townsend's excellent and unblemished employ-
ment record, he was issued nine warnings in a short span of
time after he identified himself and others as union adher-
ents. The warnings were prompted by minor, almost
insignificant, matters which ordinarily would not have
resulted in written documentation-and surely not in Town-
send's case because he was a highly regarded and veteran
employee. Some of the warnings were not even shown to
Townsend. The complaint had to be amended when, in
response to a subpena, more warnings were revealed than
were known to exist by Townsend and the General Counsel.
Significantly, the warnings were issued during the peak of
the union campaign and none was issued after February 9,
1977, because, according to Respondent, "Townsend did
settle down" and "was doing well at his job again." (Resp.
br. at 296, citing the testimony of Culberson.) I find,
however, that the unprecedented and unwarranted warnings
were issued to Townsend for pretextual reasons in order to
build a record against and harass Townsend who was the
most prominent union advocate in the plant and viewed as
such by Respondent. In this connection, I have relied on
Townsend's testimony, which was often corroborated, be-
cause I found Townsend to be a candid and honest witness.
Respondent's reasons for its warnings are lame and
unpersuasive. In addition to the failure of the reasons given
to withstand scrutiny, I found Culberson and Talley, the
principal authors of the Townsend warnings, to be thor-
oughly unreliable witnesses whose testimony was contrived
and influenced by their antiunion animus. I perceived in the
testimony of Talley and Culberson more of an interest in
monitoring prounion employees to build an adverse record
against them than in supervising their work or of improving
production and efficiency in the workplace. This is con-
firmed to a certain extent by the testimony of employee
Velma Tanner who believed that Culberson was "watching"
Townsend.
Accordingly, I find that all of the Townsend warnings
were issued for discriminatory reasons and thus violative of
Section 8(a)(3) and (1) of the Act. I shall discuss each of the
warnings briefly.
On August 12, 1976, a written document was placed in
Townsend's personnel file by Culberson indicating that he
had been "talked to" about keeping his job in proper
condition, particularly about bad yarn which had been
coming out of the winding machines in mill 2. Townsend did
not sign the warning on the space for the employee's
signature and there is no "refused to sign" notation on the
warning. According to Culberson, this means that the
document is a verbal warning because the employee was not
asked to sign the document. Culberson testified that he
showed the document to Townsend. I reject his testimony.
Townsend credibly testified that he never saw the document
until the time of the hearing. He is corroborated in effect by
Cecil Ross who allegedly was written up at the same time
and for the same reason. Ross testified he never saw his
440
J. P. STEVENS AND COMPANY, INC.
warning and did not think he had been written up.
Culberson's testimony on the difference between verbal and
written warnings and whether so-called verbal warnings
were written or not or shown to employees was unconvinc-
ing. Culberson also conceded that he had known about the
alleged problem with the bad yarn and the winding ma-
chines, which had resulted in customer complaints, since
April 1976 and that he had talked to all of his winding-
section men about the matter on many occasions before
August 1976.
The warning issued to Townsend on August 12, 1976--
the day he identified for the Union as spokesman for a group
of employees-was obviously inserted in his file secretly and
on a pretext because of his union activities and, more
precisely, his role as the most prominent and leading union
advocate in the plant. He had never before received a
warning, and Respondent's alleged concern with "bad
winding" was not shown to have been specifically attribut-
able to poor maintenance or specifically attributable to
Townsend. In any event, the "bad winding" was a preexist-
ing problem which had been discussed with the section men
on many occasions without the necessity for the issuance of a
warning. I find that the problem was a production problem
which would not normally have resulted in a personnel or
disciplinary action but for Townsend's union activities.' °
The second warning issued to Townsend was a written
warning dated August 23, 1976, and signed by both Talley
and Culberson, concerning two matters: talking to employee
Albertha Jackson and another employee, and taking long
breaks. As to the first, Talley admitted that, before the union
campaign, he often saw Jackson and Townsend talking and
verbally told them to stop. The conversations lasted 2 or 3
minutes except one which lasted 15 minutes. Talley, how-
ever, made no effort to break them up. As to the second
matter, Culberson and Talley admitted that they both
actually timed Townsend on his breaks, one of which was
described as 45 minutes long. Townsend took issue with this
aspect of the warning. Neither Talley nor Culberson thought
about talking to Townsend, seeing if he had work to do, or
having him return to his duties. It is incredible to me that
Respondent would have "timed" a 45-minute break without
going to the employee and ordering him to return to his job
if indeed it had only legitimate business reasons at heart.
Townsend was in the plant and reachable during this period.
It is clear from the testimony of both Talley and Culberson
that they were not concerned with any work-related issues in
writing up Townsend but were rather interested only in
fabricating a record against Townsend because of his union
activities.
I In an apparent effort to show that Townsend was not treated disparately,
and in reliance on the testimony of Culberson, Respondent argues that four
winding-section men in mill 2 received warnings at the same time and for the
same general reasons. The argument is unpersuasive. The warnings of section
men Cecil Ross and James Mann are suspicious. They are dated the same day
as Townsend's but are worded identically and carry a tone much less critical
than Townsend's. None of the warnings was signed or contained a "refused to
sign" notation. Ross never knew such a warning existed, even though, in
response to a question from Respondent's counsel, he did recall having a
conversation with Culberson about "bad winding." This was understandable
because Culberson had many such conversations with his section men. The
fourth winding-section man, J. B. Jefferson, also a union supporter, was issued
a written warning by another supervisor, George Luster. The warning, which
is dated I day before the other warnings, says nothing about customer
complaints or poor maintenance. It simply states that Jefferson had not told a
A third warning was placed in Townsend's personnel file
on October 6, 1976. Townsend testified credibly that the
subject matter of the warning was never discussed with him
and the warning was never shown to him. The warning,
which has no signature or "refused to sign" notation,
concerns a unit which allegedly needed pulling and repair a
month and a half earlier. Talley, who wrote the warning,
testified that he noticed that the unit was producing
defective yarn and that section man James Mann should
have reported the matter to him. He allegedly wrote up
Townsend because he also knew about the defect. Townsend
denied any such incident occurred and also denied seeing the
warning. Talley's testimony on this warning is incredible. He
said that he showed the warning to Townsend and Town-
send refused to sign it but that he "forgot" to put such a
notation on the document. In view of Culberson's testimony
that the difference between a verbal and a written warning is
dependent on such a notation and Respondent's own policy
which distinguishes between written and verbal warnings, I
reject Talley's casual testimony on this issue.
The October 6 warning was inserted secretly in Town-
send's file because of his union activities. Culberson admit-
ted that it would be unusual for a warning to be written up
for a dereliction which occurred I or 2 months before. And
Talley's own testimony shows that Townsend was not at
fault. It was Mann's responsibility to report the defective
machine, and the delay in its repair was admittedly caused
by the difficulty in obtaining the necessary spare parts. Thus,
the warning was unjustified."
A fourth warning was placed in Townsend's file on
October 14 after the following incident: Townsend had
engaged in a conversation with a group of doffers and had
playfully grabbed one of them, Carl Wilson, by the collar
and then let him go. Townsend called to Wilson as he
walked away and drew back as if to throw a bobbin he had
in his hand toward Wilson. Talley walked by and said that
bobbins were not to be thrown in the plant. Townsend then
dropped the bobbin into a nearby box. A few minutes later
Townsend was called into the office and issued a written
warning accusing him of horseplay and of throwing a bobbin
at Wilson. Townsend read the warning, denied throwing the
bobbin, and asked Talley to check with Wilson. He refused
to sign the warning. Talley testified in a conclusionary
fashion that Townsend did throw the bobbin, but he did not
investigate the matter further. Respondent did not question
Wilson or any other doffer about this incident but did call as
a witness a clearly biased, antiunion employee, Velma
Tanner, to testify that she saw Townsend throw the bobbin.
Her testimony is completely unreliable, and I reject it except
winder tender to put new wax on her machine. Luster testified that the day
before-August 10-Culberson had said something about a customer com-
plaint about wax and told him to talk to the section man about this; he did.
but no warning was issued due to this alleged general complaint by Culberson.
The next day, according to Luster, Culberson came in and noticed that wax
needed changing on a particular machine and told Luster to issue a warning to
Jefferson. Luster's testimony thus contradicts that of Culberson which
suggests that Jefferson, like the other section men, received a warning for a
general maintenance problem. Moreover, the warning was issued on the same
day that Respondent noted Jefferson's name as a union supporter.
Be Respondent makes the unwarranted assertion that Townsend admitted
discussing the subject matter of this warning with Talley by citing testimony
on direct examination which clearly shows Townsend reading the warning
and then denying that the incidents described in the warning ever took place.
441
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
insofar as she concedes that Townsend's union activities
were well known.
Based on Townsend's credited testimony and the evidence
surrounding the other warnings issued to Townsend, I find
that this warning would not have been issued but for
Townsend's union activities.
Another warning was issued to Townsend on December
21, 1976, for another incident of alleged horseplay with
Rebecca Ross. Townsend was cleaning himself with an air
blower used to "blow off'" lint from employees and their
machines. He was approached by Ross who poked him two
or three times in the side. She wanted to use the blower.
Townsend told her she should use another blower. At this
point Culberson approached Townsend and said he had been
warned about horseplay. Townsend denied he was engaged
in horseplay, but Culberson said he would have to write up
Townsend. Townsend protested. A warning was written and
placed in Townsend's file by Talley, who did not even see the
incident but wrote it up in the first person as if he saw it. The
warning contains the notation that Townsend "refused to
sign" it. Ross was not written up, and she corroborates
Townsend as to the circumstances surrounding the warning.
I reject Culberson's testimony that Townsend was culpable
because he "grabbed" Ross and was "cutting up" on the job.
Culberson's testimony was permeated by his animus against
Townsend for the latter's leadership role in the Union and is
thus wholly unbelievable. It is also unclear whether Town-
send saw this particular warning even though he knew,
through Culberson, that it was forthcoming. He testified
that he may have seen the warning one week later. Talley
testified he showed Townsend the Ross warning on the day
it was written and that Townsend refused to sign it. He also
testified that he had the warning written up before he talked
to Townsend-because Culberson asked him to write it up;
and he did not talk to Ross about the incident.
In view of my credibility determinations, I find that
Respondent's warning of December 21 was issued because of
Townsend's union activities and in order to build a record
against Townsend. Ross, who was also involved and,
according to the credited testimony, instigated the incident,
was not written up. Moreover, the warning was written by
Talley before he talked to Townsend or investigated the
incident. The circumstances indicate a "trumped up" charge
which was markedly different from the credited version of
the incident. In any event, the incident was so minor that it
did not result in a warning against Ross and, in the absence
of Townsend's leadership role in the Union, would not have
resulted in a warning against him.
After the Ross incident, Townsend apparently realized he
was being "warned" to death. He went to Culberson with a
witness, Joyce Seamon, and asked Culberson to get off his
back. He told Culberson that he knew Culberson was aware
of his union activities. Culberson told Townsend he had
complaints about Townsend not doing his job. However,
Culberson did not mention who was complaining about
Townsend's work. Culberson essentially corroborated
Townsend about this conversation, although he places the
conversation as taking place one day after he talked to
Townsend and Seamon for "horseplaying" in the winding
room. There was no written documentation of this "verbal"
warning, but Townsend describes a rather insignificant
incident which occurred at this time: He stuck his tongue
out at a young lady employee, was observed by Culberson,
and was subsequently called into the office and shown the
Ross warning.
Another warning, dated December 27, 1976, was placed
in Townsend's file by Culberson. It recounts that Townsend
had been talked to on numerous occasions "about being
away from his job too much," that unnamed employees had
complained about poor maintenance on the winders, that
Townsend had a "negative" attitude toward "constructive
criticism" and that the document was a "final warning" that
any "further misconduct" and "disobeying of instructions
could result in your termination." There was no signature or
notation that Townsend "refused to sign" the document.
Townsend denied he saw the document or discussed such a
general negative evaluation. Culberson testified that he
called Townsend into his office, talked to him about the
warning, and showed it to him. I reject Culberson's
testimony on this issue based not only on his general
unreliability as a witness, but also because I find it incredible
that a final warning with the threat of discharge would be
issued without requiring it to be signed or the notation
"refused to sign" being put on it. In Culberson's view, the
document was a verbal warning. It is clear, however, that
Respondent's written policy requires a written warning
before a discharge is effectuated. Thus, I find that the
warning was secretly placed in Townsend's file.
Moreover, to the extent that the warning purports to
relate to bad maintenance on Townsend's part, I find the
charge completely unwarranted. Respondent claimed that
this warning was simply a summary of previous complaints
against Culberson and contained nothing new. If so, it was
based on pretexts and was unlawfully issued prior warnings.
Moreover, alleged employee complaints about Townsend's
work were nonexistent. No specific evidence of employee
complaints was submitted to support the charge except for
the exaggerated and biased testimony of Tanner and the
equally unreliable testimony of Culberson, both of whom I
discredit.
Respondent's argument, that there were problems with
bad "winding" or yarn, which resulted in customer com-
plaints, that this was the result of poor maintenance which
in turn was the primary responsibility of Willie Townsend,
and that all of this necessitated personnel actions such as
warnings and threats of discharge, is unpersuasive. First of
all, Respondent relies on the testimony of Plant Superinten-
dent Gregory concerning periodic inspection reports on the
winders from the Leesona Corporation. Even assuming that
these reports relate only to the mill 2 winding machines-an
assertion which is incapable of corroboration-they do not
point to Townsend as the culprit for the poor maintenance.
Indeed, according to Gregory, the inspection report of May
20, 1977, lists the greatest number of maintenance and repair
problems. However, Townsend did not receive a warning
about poor maintenance after December 27, 1976, and,
according to Culberson, he redistributed the work of the
fixers, including Townsend, in early 1977. This significantly
alleviated the problem. Culberson's testimony on this point
illustrates his complete unreliability as a witness. On direct
examination, he testified that the condition of the winders
did not improve as a result of his redistribution of work. On
442
J. P. STEVENS AND COMPANY, INC.
cross-examination, he suggested that his. redistribution of
work "had to help" because the fixers had "two winders
apiece" and had a "better attitude." If Culberson's first
version is correct and the redistribution in early 1977 did not
help, Townsend was obviously not responsible because he
received no warnings about poor maintenance in 1977; if
Culberson's second version is correct, then the redistribution
did correct the problem and the reason for the poor
maintenance was due to the inequitable assignment of work.
The same conclusion applies to alleged customer com-
plaints. Gregory testified about customer complaints con-
cerning mill 2 winding or yarn and identified certain
documents he claimed were customer complaints about mill
2 winding. The documentary evidence does not show that
the complaints relate only to mill 2 winding problems.
However, even if I accept Gregory's testimony that they did,
the documentary evidence does not show that the com-
plaints were due to bad maintenance within the responsibili-
ty of fixers generally or Townsend in particular. Such
complaints were common. There were a significant number
of customer complaints prior to June 1976 and many after
January 1977 when Townsend ceased getting warnings
about poor maintenance and after Culberson had redistribut-
ed the work and saw some improvement. Thus, the customer
complaints prove nothing about Townsend's alleged lack of
attentiveness to his work. Rather they probably relate to the
fact that Respondent had a lot of old machines which often
broke down, even though they were overhauled in 1973 or
1974. Joyce Seamon testified that se became a unicone
winder operator in about 1973 and her machine had always
had problems.
To the extent that Respondent urges, based primarily on
Culberson's unreliable testimony, that Townsend was more
responsible than the other section men for the poor yarn and
the allegedly poor maintenance because he had general
responsibility to repair all the automatic winding machines,
I find the argument unpersuasive. First of all, Respondent
takes the position in litigation that Townsend was and is an
employee-that he is a winder technician and not a section
man or fixer'-but that the section men are supervisors. It is
inconceivable to me that Townsend-an employee-would
have greater responsibility in this respect than the section
men who Respondent says were supervisors. I also find
implausible Culberson's testimony that, in 1973, Townsend
accepted what, under Culberson's view, would have been a
demotion from a section man's job to a job he called "head
overhauler." In fact, Townsend and the people specifically
labeled section men had essentially the same type of job.
They thus shared equally in any responsibility for poor
maintenance. This is basically conceded by Culberson, who
testified that he spoke to all the section men-indeed issued
them warnings-about the bad yarn and alleged poor
maintenance and that he subsequently redistributed the
work of the winding section men in his mill, which resulted
in improved maintenance. In these circumstances, Respon-
dent's focus on Townsend for its discipline is explainable not
by his greater responsibility but by his leadership role in the
Union.
' It is interesting that Townsend was identified as a "unicone section man"
in his first, August 12, 1976, warning.
Accordingly, I find that Respondent's attempt to lay the
blame for alleged poor maintenance of the winding machines
on Townsend was a pretext to mask its ulterior purpose in
issuing warnings to Townsend-to harass and build a record
against him with a view to eventually discharging him
because of his leadership role in the Union.
Three other warnings were placed in Townsend's file after
the alleged final warning of December 27, 1976. All
contained no signature by Townsend or notation that he
refused to sign. They were issued for minor incidents which
were pretexts for Respondent's continued harassment of
Townsend because of his leadership role in the Union.
On January 13, 1977-in a warning not shown to
Townsend-he was criticized for talking to several employ-
ees for "about ten minutes."
On January 18, 1977, another warning not shown to
Townsend was placed in his file for a petty incident,
unconnected with work, but which very much demonstrated
Respondent's antiunion animus toward Townsend.
On the day in question, certain employees and Townsend
had gathered on the fire escape at approximately 8:30 a.m. to
observe the unusual occurrence of snow in Montgomery.
Across the street, some officials of Respondent had gathered
on the porch of the administration building. While on the
fire escape, Townsend remarked to the employees that
Respondent's officials should close down the plant and let
everyone go home. Townsend testified that he may have said
this in a voice louder than he normally speaks, but that he
did not shout the remark in an abusive snanner. However, a
few minutes later, Culberson ordered Townsend to Plant
Superintendent Gregory's office where he was subjected to
condescending and heated criticism by Gregory. Townsend
was told that his remark was out of place, that he would not
be missed if he left, and that he had better start to conduct
himself as a gentleman. The meeting ended with Townsend
being told to get "the hell" out of the office. Gregory's
testimony clearly indicates that he did not think Townsend's
conduct justified a warning-he did not direct that Town-
send be issued a warning; yet he signed a subsequent
warning which was written by Culberson. Gregory testified
that he was so angry that he "was willing for [Townsend] to
quit." Gregory's purported horror at Townsend's language
is particularly incongruous in view of his own abusive
remarks to employee Bruce Duke for a similarly insignifi-
cant incident (infra). Respondent's reaction to Townsend's
remarks--an accusation that he was arrogant-was a
euphemism to describe its hostility toward Townsend for his
leadership role in the Union and as spokesman for the
prounion employees. In these circumstances, I find that the
warning of January 18 was inserted in Townsend's file for
discriminatory reasons.
On February 9, 1977, Talley issued another warning to
Townsend for talking "four or five minutes" to employee
Joanne Black. Talley did not claim he showed the warning
to Townsend. Townsend testified that the conversation with
Black lasted less than 2 minutes and in fact was about a
union meeting the night before. Townsend did acknowledge
that Talley approached him after his conversation with
Black and after Talley had talked to Black. Talley said
443
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Townsend was not supposed to be talking to her. Black was
not issued a warning, and Talley admittedly had not written
up Townsend for such short conversations prior to the union
campaign. Indeed, the overwhelming evidence in this case,
including the testimony of supervisors, is that there was no
prohibition against short conversations between employees
on the production floor. Nor was Respondent particularly
concerned about interference with production. Pete Green
talked to almost all the employees at their jobs in an attempt
to solicit grievances. In these circumstances, it is likely, and
I find, that Talley placed the February 9 reprimand in
Townsend's file because of Respondent's continuing and
discriminatory harassment of Townsend and because his
conversation was related to the Union.
In sum, Respondent issued nine warnings to Townsend
during the union campaign for discriminatory reasons and in
violation of Section 8(a)(3) and (1) of the Act.
2. J. B. Jefferson
J. B. Jefferson was employed by Respondent since
September 1971. He was promoted to section man or fixer"
in 1976, and at the time of his discharge in early August
1977-shortly after the beginning of the hearing in this
case-he worked on the third shift in mill 2 under the
supervision of George Luster and Robert Culberson.
The General Counsel alleges that Respondent discrimina-
torily issued two warnings to Jefferson-one on June 10,
1977, and another on July 29, 1977-and subsequently
discriminatorily discharged him in August 1977 because of
his union activities. Respondent alleges that its decisions on
these matters were prompted solely by legitimate consider-
ations. I find, in agreement with the General Counsel, that
Respondent discriminated against Jefferson because of his
leadership role on behalf of the Union.
Jefferson was a known leader in the union campaign. Next
to Townsend, Jefferson was the most prominent union leader
in the plant; he was particularly active in June and July 1977
in a renewed effort to keep the Union alive at the plant. His
authorization card was signed early in the campaign, and he
acted as spokesman for a group of employees who identified
themselves for the Union. Jefferson's name appears on
Respondent's list of union supporters under the date of
August 11, 1976. His union activities continued through the
spring of 1977. He regularly attended union meetings,
handed out union authorization cards to about 10 employ-
ees, some in the breakroom at the plant, and distributed
union leaflets outside the plant "two or three times" in the
spring of 1977. At least three of the cards he solicited from
employees were signed in June 1977, and he acted as witness
for two of these employees when they later identified
themselves to their supervisors as union supporters.
On June 10, 1977, he passed out union leaflets in front of
the plant and carried one into the plant. Supervisor Ron
Talley, who was apparently substituting for Luster, was at
" The terms are interchangeable; as I shall discuss later in this Decision, the
section men at the West Boylston facility are employees and not supervisors as
Respondent contends.
" Respondent's attempts to impeach Jefferson based on his testimony
concerning other warnings-some dating back to 1972-are not persuasive.
Jefferson's testimony on some of these matters simply reflects the lack of
the timeclock, a few feet away, when Jefferson approached it
to punch in. Talley saw him with the leaflet.
That night, Talley observed Jefferson three or four times
having conversations with employees which later became the
subject of a written warning. One-half hour into the shift,
Jefferson had a short conversation with employee Mary
Robinson and placed his arm around her shoulder. Both
Jefferson and Robinson testified that theirs was a work-
related conversation and that he did not "hug" her, as
Respondent charged. Talley observed them from about 10 to
15 feet away. Robinson testified that Culberson came over to
her afterwards-Culberson did not come into the plant until
the end of the third shift, about 5:30 a.m.-and asked if
Jefferson had "hugged" her; she denied the charge. A few
minutes after talking with Robinson, Jefferson spoke with
Julia Davis and another spinner for 2 or 3 minutes, either
during their breaktime or while they were going on their
break. Davis corroborated Jefferson that there was no
interference with the work of the spinners at this time.
Talley came up to Jefferson and accused him of interfering
with the work of the two employees and engaging in
horseplay. Jefferson explained that they all were on break-
time. Still later, Jefferson spoke briefly to two other
employees while on his rounds, and Talley again accused
Jefferson of "horsing around." I credit Jefferson's account of
the above events. He was an honest and forthright witness
and was essentially corroborated by Davis and Robinson. '
At the end of the shift, Jefferson was called into
Culberson's office and issued a written warning document-
ing the above conversations and accusing him of keeping
people from their jobs. The substance of the charge was
false, according to Jefferson's credited testimony, and
Jefferson told Culberson this in the presence of Talley.
The warning itself was issued on a pretext and is
explainable by Jefferson's renewed union activities, particu-
larly the distribution of leaflets, which was observed by
Talley, that very night. The harmless conversations and
incidents which prompted the warnings were not ordinarily
causes for discipline. Prior to the onset of the Union, similar
conversations, even for personal reasons, were tolerated
without interference or warnings, according to testimony
from many employees and some supervisors. The scenario
for the Jefferson warning was thus reminiscent of the
Townsend harassment early in the Union's campaign. The
Townsend warnings, however, had brought about unfair
labor practice charges and complaint allegations of discrimi-
nation. The authors of the Townsend warnings-Culberson
and Talley-apparently focused on Jefferson as the new
object of their attention and monitored his almost every
move on this night. In these circumstances, I conclude that
the warning was motivated by a desire to retaliate against
recollection one might normally expect in a candid witness. These warnings
were not specifically at issue and he was promoted to section man
notwithstanding many prior warnings in his file. On the other hand, Talley
and Culberson impressed me as witnesses who were attempting to conceal an
unlawful motive for issuing warnings to Jefferson in the summer of 1977, the
critical period herein, just as they had in the case of Willie Townsend.
444
J. P. STEVENS AND COMPANY, INC.
Jefferson for having distributed leaflets on behalf of the
Union that very night-a circumstance known by Talley."
On July 24, 1977, James Williams, the other fixer on
Jefferson's shift in mill 2, signed an authorization card.
Jefferson acted as Williams' witness when he thereafter
identified himself to Luster as a union supporter.
On July 29, 1977, Jefferson received a warning about not
repairing a particular machine and referring the machine
operator to another fixer. Jefferson's uncontradicted testi-
mony of the incident is as follows:
Jefferson was working on a rotocone winder when
employee Mildred McEwen came up to him and asked him
to fix her machine. Jefferson, who was busy at the time, told
McEwen to ask the other fixer, James Williams, to take care
of her machine because Williams was free. After Jefferson
fixed the rotocone, however, he went over to McEwen's
machine and fixed it. Jefferson testified that 15 minutes
elapsed between the time McEwen made her request and
when Jefferson finished with the rotocone and was able to
get to McEwen's job.
Luster testified that McEwen came up to him and told
him that Jefferson refused to fix her machine and referred
her to the other fixer, Williams. McEwen did not testify
about this matter. Luster did not apparently talk to Jefferson
or make him repair the machine or check to see if it was
eventually repaired. He wrote a warning on the matter and
showed it to Jefferson, although Luster did not specify when
he showed the warning and talked to Jefferson or give any
other details about the warning or what prompted it.
Jefferson testified that he did see and refused to sign the
warning on the day after the incident.
The July 29 warning was issued to Jefferson because of his
union activities. Respondent did not refute Jefferson's
testimony that he actually repaired McEwen's machine.
Indeed, Respondent conducted no investigation to that end.
Instead, it relied on hearsay testimony that Jefferson initially
refused to repair the machine--or, more accurately, com-
plained about the request made by an employee-because he
was busy on something else. Respondent's trigger-happy
fondness for issuing warnings to union leaders--exemplified
in Jefferson's June 10 warning-was repeated on July 29.
Not only was the warning itself discriminatorily motivated,
but it is an example of Respondent's continued hostility
toward Jefferson for his newly reasserted leadership role in
the Union.
Another warning, dated July 30, was issued to Jefferson
on a pretext and provides further evidence of Respondent's
harassment technique and its animus. Jefferson credibly
testified that he kept himself occupied with his normal duties
that night, fixing units which were "flagged."' Jefferson
testified that there were quite a few flags and that he worked
on a "lot of them" but that there were some left unrepaired
at the end of the shift. Luster did not make any complaints
to Jefferson that night about his work. When Culberson
came in about 5:30 a.m., shortly before the end of Jefferson's
" I do not reach the issue-which was not presented to me but looms large
in Jefferson's case-of whether he was discriminatorily issued particular
warnings on pretexts from August 1976, when he first declared for the Union,
until June 1977.
" When a unit is in need of repair, the operator "flags" it by placing a cone
on it to signal a fixer to come over to repair the machine.
" In view of this testimony by Culberson, I find it difficult to believe
shift, he approached Jefferson, asked him what he had been
doing all night, and complained that he had only done about
2 hours' worth of work. Culberson then approached Luster
and told him to write up Jefferson because the rotocone
winders had flags "all over." Jefferson credibly testified that
he did not see the warning until the next workday, which
would have been Monday, August 1, 1977, the first day of
the hearing in this case; the shift began at 10 o'clock on
Sunday night.
In these circumstances, I find and conclude that the
reason for the July 30 warning was the same as that for the
June 10 and July 29 warnings, particularly since Luster had
to be ordered to write it up. Although not specifically alleged
as a violation, the circumstances surrounding the warning
were fully litigated and were intertwined with the issues
presented in the complaint. Thus, Respondent's antiunion
hostility and harassment of Jefferson continued up until the
beginning of the hearing in this case and his discharge I
week later.
Jefferson was discharged on August 8, 1977, for an alleged
dereliction which took place during the shift of August 4 and
5, 1977, during the first week of the hearing in this case. I
find that the alleged reason for the discharge-refusing to
perform assigned work-was a pretext to mask Respon-
dent's discriminatory motive.
At or about 10:30 p.m. on August 4, shortly after the
beginning of the shift, Luster told fixers Jefferson and
Williams that Culberson wanted them to "build" or "pull"
some units if they had time. To build or pull a unit involved
a more substantial repair job than the fixers ordinarily
engaged in when they answered "flags." Each winder has
over 40 units on it. According to the testimony of Jefferson
and Wiliams, Jefferson replied that all his units were built.
Luster asked if he should tell Culberson that, and Jefferson
said "yes." Apparently, the units which needed to be rebuilt
were ones that Willie Townsend could not work on because
of his absence that week. In any event, Jefferson did work on
two units this particular night, repairing one completely.
Williams did not pull any assigned units.
At the end of the shift, Culberson arrived at the plant. He
and Luster approached Jefferson. Culberson told Jefferson
he could get fired for refusing to do a job. Jefferson denied
that he refused to do a job and stated that he did repair the
assigned units. Culberson replied that Luster reported that
he did not fix any units. Jefferson then said if Culberson did
not believe him, he should ask Williams. Culberson essen-
tially corroborated Jefferson. He conceded that Jefferson
told him he had pulled some units.'
The next night, Friday, August 5, Jefferson reported for
work but was sent home and told to report back on Monday
to talk to Culberson. On August 8, Monday, Jefferson
reported to the plant and was told he was terminated-not
by Culberson, but by Talley.
Three witnesses-Jefferson, Williams, and Mary Robin-
son-testified that Jefferson did indeed pull at least one unit
Personnel Director Compton's testimony to the effect that Culberson had not
told him that Jefferson said he had pulled one or more units. Indeed, in
testifying about his approval of the discharge, Compton specifically stated
that he relied on the fact that Jefferson never said he had pulled any units.
Either Compton was untruthful on the witness stand or Culberson was
untruthful in his report to Compton.
445
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that night and repaired it. The only contrary testimony is
that of George Luster who said he did not see Jefferson pull
any units. I reject Luster's testimony as unreliable. He
testified that he did not know how many units had to be
pulled or how many were "down" at the end of the shift. He
also testified that Jefferson kept busy and that he had no
complaints about Jefferson's work that night. And he did
not ask Jefferson or any of the winder tenders whether
Jefferson pulled any units. Yet, at the end of the shift, his
report to Culberson apparently focused only on Jefferson's
comments made at the beginning of the shift to the effect
that he did not feel he should work on the Townsend units.
Luster's testimony is thus influenced by the same animus he
and other supervisors had consistently displayed against
Jefferson for his union activities over the past several
months.
Moreover, it is clear from the testimony of Luster and
James Williams that Culberson talked with Williams after
Jefferson had suggested that he should and that Culberson's
only questions of Williams focused on whether Jefferson had
stated a refusal to pull any units. Culberson did not at this
point ask whether Jefferson actually pulled any units.
Culberson already had been told by Jefferson that Jefferson
had pulled some units. Indeed, after talking with Williams,
Culberson directed that a statement be prepared for Wil-
liams' signature documenting their conversation. Luster
delivered it to Williams. Williams mentioned that the
statement was inaccurate and insisted that an addition be
made that he saw Jefferson "rebuild" a unit. That first
written statement was destroyed by Respondent. Thus,
Respondent was more concerned with the legalistic and
almost academic question of Jefferson's initial response to
Luster's order-which was, incidentally, made to both
fixers-than in the result: whether Jefferson had performed
the assigned task. Clearly, Respondent was more interested
in finding a reason to fire Jefferson rather than in adequately
investigating the matter to determine whether there had
been a work-related lapse in production or maintenance.
More importantly perhaps, Respondent's entire procedure
in effecutating the Jefferson discharge shows its determina-
tion to find a pretext to support the discharge decision.
Thus, after the initial conversation with Williams, Luster
was asked to obtain a written statement from Williams-a
procedure never followed by Luster in his 10 years of
supervision at West Boylston. Williams protested about the
way the first statement was written and insisted it be
corrected. Respondent then destroyed the statement. Wil-
liams was presented with a second statement to sign and he
did so without reading it closely because he was told that it
was just like the corrected first statement. According to
Culberson-whose testimony I reject as unreliable and
colored by his union animus-he had two conversations
with Williams, and Williams changed his story: First,
Williams said Jefferson did not pull any units and later he
said that he "thought" that Jefferson did. However, even
' I am reinforced in my finding of discrimination because Respondent, after
recognizing that it could not prove Jefferson's failure to perform an assigned
task and offered to reinstate him with full backpay on October 11, 1977. It is
conceded that he accepted this offer and returned to work on October 13,
1977.
E I credit the testimony of Moss on these matters and discredit the contrary
testimony of Bobby Ball whom I did not find to be a reliable witness. Moss'
accepting Culberson's testimony after the second state-
ment-which considerably weakened the case against Jeffer-
son-Respondent had less reason to fire Jefferson than it did
initially. Yet Respondent went ahead with the discharge. At
best, Respondent had evidence that Jefferson initially re-
fused to pull units-or more accurately-complained about
the assignment. Against this was the evidence that both
fixers were asked to pull Townsend's units, that Williams did
not, that Jefferson did-according to both Williams and
Jefferson-and that Luster had no complaints about Jeffer-
son's work that night. No further investigation was conduct-
ed and, although Jefferson performed the assigned task, he
was fired. Williams, who did not perform the task, suffered
no repercussions. The only conclusion I can make is that
Respondent was determined to fire Jefferson under any
circumstances because of its longstanding hostility towards
Jefferson for his leadership role in the Union.
In sum, the warnings issued to Jefferson on June 10 and
July 29 and 30 were discriminatorily motivated as was his
discharge in August 1977; all of this conduct was violative of
Section 8(a)(3) and (I) of the Act. '
3. Margie Moss
Employee Margie Moss began working for Respondent on
September 15, 1975, and was discharged on August 25,
1976. She was a hand winder on the third shift in mill 1
under the supervision of Shift Overseer Jerry Baggett.
Moss signed a union card early in the campaign and
attended union meetings. She also distributed union leaflets
at the plant on one occasion, on August 17, before the
beginning of her shift. Supervisor Bobby Ball, who knew her,
was present and noticed her at this time. Her name appeared
on Respondent's list of union adherents under the date of
August 9.'
Moss had several conversations with coworkers in the
plant cafeteria or breakroom about the Union. Supervisor
Jerry Baggett overheard these conversations. In at least one
such conversation overheard by Baggett, Moss was trying to
convince another employee to sign a union card and
mentioned the advantages of union representation. I do not
credit Baggett's denial that he overheard Moss talking
favorably about the Union. Baggett testified that he never
heard the Union discussed in the breakroom and "never
discussed a union with the employees." He did not impress
me as a candid witness in his general denials that he knew
about union activity at the plant. Moreover, since Moss did
not personally notify a supervisor of her union support, it is
reasonable to infer that her union support became known to
Respondent through Baggett's overhearing conversations as
she testified. The only other source would have been Bobby
Ball,, but the notation on Respondent's list of union
supporters is dated before Ball could have observed Moss
passing out literature.
first card which was signed in early August, according to her testimony and
that of another employee, was not admitted into evidence, but, in view of her
other union activity and because her name appeared on Respondent's list of
union supporters, under the date of August 9, 1 credit her testimony that she
signed a card either in late July or early August. She signed another card-
which was admitted into evidence-on August 30, after her discharge.
446
J. P. STEVENS AND COMPANY. INC.
Moss was discharged on August 24, just I week after
distributing union literature and shortly after being placed
by Respondent on its list of union supporters. The timing of
the discharge is persuasive evidence of its unlawful charac-
ter.
This inference is strengthened by the failure of Respon-
dent's reason for the discharge-"low production"--to
withstand scrutiny. Moss, who had been warned five times
for low production during the early part of her employment,
received her first warning since April on August 18, 1976, 1
day after she passed out union literature. The warning
mentioned that she was on the allowance sheet for the week
ending "8-15-76."' " Moss credibly testified that Baggett,
who wrote up the warning, also talked to her about staying
in the bathroom too long which she explained by stating she
was not feeling well. The termination notice of August 24
states that, since her production "remains consistently and
repeatedly low," she was being discharged. Baggett testified
that Moss was on the allowance sheet for the last 2 weeks of
her employment and that this is what prompted her
discharge. Neither of the allowance sheets was offered into
evidence.
Respondent's failure to offer into evidence the allowance
sheets of Moss' last 2 weeks of employment to support its
claim that she was discharged for low production during this
period renders Respondent's asserted reason for her dis-
charge, a well as the August 18 warning, an obvious
pretext. Such evidence was easily available to it, and, indeed,
Respondent offered allowance sheets covering the last 2
months of union supporter Ed Beeman's employment in an
effort to justify his discharge. Its failure to offer similar
evidence in Moss' case leads to the inference that she was not
on the allowance sheet or the amounts of her deficiencies
were so small that they would not have supported a
discharge when compared to other employees. For a short-
term employee who had difficulties making production early
in her employment, Moss had performed well since April
1976. Only after her union activities was she warned and
precipitously discharged for low production. Moreover,
although Respondent obviously warned and discharged
other employees for low production, its policy in doing so
was not consistent. Marva Watkins received 18 warnings for
low production and being on the allowance sheet during her
3 years of employment; she was not discharged for this
reason. Moreover, it is clear that other employees who
showed up on the allowance sheet were not disciplined, and
Baggett testified that he simply talked to one, Bessie Ross,
casually, on her job. In these circumstances, I find that Moss
was not discharged for low production, but rather for her
union activities which became known to Respondent shortly
before her discharge.
That the reason given for Moss' discharge-low produc-
tion-was a pretext is also shown by Respondent's subse-
quent conduct in refusing to rehire Moss after her discharge.
It is undisputed that, in April 1977, Moss made a written
application for reemployment at the plant and that she
talked with Personnel Director Compton at this time. There
is a dispute between Compton and Moss as to what was said.
i' An allowance sheet is a weekly report indicating employees whose
production was not up to standard. It indicates deficiencies or amounts
Respondent had to pay production employees to bring their average hourly
Moss testified that Compton told her she was a good worker
but he did not know what "got into [her]," that there was a
job opening on the third shift, and that he would call her the
next day after checking with the supervisor. She never heard
from Compton. Compton testified that he told Moss that he
did not know if there were any openings but said he would
keep her in mind if she filled out an application; he also told
her she could have been a good employee if she had stayed
on her job and "worked with us."
Moss was not rehired because of her known union
activities which, by April 1977, had resulted in an unfair
labor practice charge being filed against Respondent alleging
that her discharge had been unlawful. Compton took Moss'
application but never called her to tell her whether it had
been acted on favorably or not.
In an apparent attempt to justify the refusal to rehire
Moss and Beeman, another supporter who was discharged,
ostensibly for low production, Compton testified that it was
his practice not to rehire employees terminated for low
production. I do not credit Compton. If there were a policy
against rehiring low producers, I doubt that Compton would
have permitted Moss to file an application at all. A candid
response to Moss and Beeman would not have been I'll
"keep you in mind"--as Compton testified-but, rather,
"we have a policy against rehiring those fired for low
production." Moreover, documentary evidence shows that
there were many job openings at the plant between March
and June 1977, thus supporting Moss' testimony that
Compton mentioned a specific job opening. Documentary
evidence also shows that low producers were considered
candidates for rehire. For example, Beeman was discharged
for low production, yet his termination notice indicates that
he would be rehired "if improved quality and production."
Tony Freeman was discharged on May 25, 1976, for what
was described as "poor" quantity and "fair" quality of work;
yet his termination notice indicated that he could be rehired
and he was rehired in January 1977. Of course, there was
much evidence that former employees, even those who were
fired for cause, were rehired as a general matter. According-
ly, I find, contrary to Compton's testimony, that there was
not an ironclad policy against the reemployment of low
producers.
In these circumstances, it is reasonable to infer, and I find,
that Respondent failed to rehire Moss for the same reason it
fired her-her union activities.
4. Tim Walker
Employee Tim Walker had worked for Respondent for
about 4 months before being discharged on August 26, 1976.
At the time of his discharge he was a yarn man on the third
shift in mill I under Shift Overseer Jerry Baggett. When he
was first hired he worked on the second shift under Shift
Overseer Bobby Ball.
Walker signed a union authorization card on August 10.
He handbilled on behalf of the Union outside the plant in
mid-August. Walker was observed on this occasion by
Supervisor Bobby Ball who was writing names on a pad.
wage up to the plant minimum of 2.85 per hour where such failure to earn
the minimum is the fault of the employee.
447
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Walker also distributed blank union cards he had obtained
from Union Representative Henry Mann at a union meeting
to employees inside the plant during breaktimes."
The day after he distributed union handbills outside the
plant, Walker was issued a warning-dated August 18-
concerning the packing of bad yarn." This warning was
unjustified and issued in retailiation for Walker's union
activity and in order to build a record to support Walker's
discharge. Margie Moss, another union supporter, who was
involved in the union distribution the same day, was also
discriminatorily issued a warning on August 18 on a pretext.
The evidence concerning the warning for packing bad
yarn is as follows: Walker testified that after he was given
the warning he was told by Baggett to repack the yarn. He
did so the next night and found, based on the slip inside the
box, that it had been packed by a first-shift employee. He
complained to section man Butch Corbin, who had wit-
nessed the warning, and showed him that it was not his yarn.
Corbin did not testify. Walker also complained to Baggett,
who said nothing. He also complained to Paul Gregory or
Skidmore in one of the August grievance meetings. He was
given a sympathetic response to the effect that it probably
was a mistake because so much bad yarn was being packed.
Baggett denied that he asked Walker to repack the yarn. He
testified that when he came in to work that night, Mill
Overseer Marvin Hicks "had left the yarn on my desk with a
note attached to it and a packing slip . . . which identified
the yarn man that packed it out ... " Hicks did not testify
about his role in this incident.
I credit Walker's testimony that he was unjustifiably
warned on August 18 and that the bad yarn was not packed
by him. Walker's testimony that he did repack the yarn and
showed Corbin that it was not his yarn is uncontradicted.
Baggett denied that he asked Walker to repack the yarn, but
I find it likely that he did because he physically showed
Walker the bad cones which were left for him by Hicks. In
any event, it is uncontradicted that Walker did indeed
repack the yarn. It is understandable that Walker did not
complain at the time he was warned-he did not have any
way of knowing that the bad yarn was not his. I find it
significant that Hicks did not testify about this incident since
it was really his association of the bad yarn with Walker's
slip that formed the basis of the complaint. Baggett was
simply a conduit for Hicks in this matter. Walker's testimo-
ny is given further credence by the fact that he consistently
complained to several officials that the warning was unjusti-
fied and stood firm at the hearing that this was an
unwarranted warning while, at the same time, candidly
admitting to the fact that other earlier warnings about his
job performance were justified.
Walker was discharged, according to his termination
notice, for allegedly throwing a bobbin at another employee
and running into her with a yarn box-an incident which
occurred on his last day of work, August 25, 1 week after his
" Respondent contends that it had no knowledge of Walker's union
activity. I reject this argument even though Walker did not identify himself
for the Union to a particular supervisor and stated that no supervisor saw him
handing out cards. At the very least, Respondent, through Bobby Ball, knew
he had distributed leaflets in mid-August. Both Walker and Margie Moss
testified about Ball's observing them distributing union literature. I reject
Ball's denial that he saw Walker because of his unreliability as a witness.
earlier warning. The termination also mentioned previous
warnings and stated that he had "failed to improve."
The evidence concerning the incident which prompted
Walker's discharge is as follows:
On August 25 about 2 a.m., Walker was cleaning up in the
winding room and picked up a bobbin from the floor and
threw it into a box next where winder Lurine Minor was
working. Minor told Walker she was startled by his
throwing the bobbin as he did. Later that same morning,
Walker was pushing a box of yarn down an aisle and
accidentally bumped into a doff box next to Minor. An
argument ensued and Walker apologized, but Minor com-
plained about the incident to a supervisor. Walker continued
working, but, shortly before 6 a.m., was told to report to the
office. In the office, Mill Overseer Hicks told Walker that
Minor had accused Walker of hitting her with a bobbin,
cursing her, and hitting her with a crate. Walker denied the
accusations and gave his explanation. He then punched out
and went home.
At or about 2:30 p.m. on the afternoon of the next day,
Hicks and Bobby Ball drove to Walker's home and told him
that Personnel Director Compton wanted Walker to come to
the plant. Walker did so and met with Hicks and Compton,
who asked about the Minor incident. Walker again gave his
version, and Compton informed Walker he was being
discharged.
The above is based on the basically uncontradicted
testimony of Walker. He was essentially corroborated by
employee Canty, who observed the cart accident. Canty
testified that Walker's doff box hit Minor's, that Walker
apologized, that Minor said something back and about I
hour later talked to Hicks. Lurine Minor did not testify.
Baggett, Hicks, and Compton all testified that they talked
to Minor and that she said Walker ran "into her" with a
yarn box. Hicks testified that Minor talked to him and
Baggett in the breakroom. Baggett then talked to her
separately, and Compton talked to her the next day.
Compton also testified that Minor said she did not want to
see Walker lose his job. Hicks testified he was present when
Compton talked to Minor and that, at that time, Minor said
Walker had "run into her legs" with a "yarn box"-
something he had done before-and that Walker hit her "on
the leg" with the bobbin. Compton testified that Hicks was
not present when he talked to Minor."
I reject Respondent's asserted reason for the discharge.
Hicks' testimony is wholly unreliable. In his effort to
exaggerate Walker's offense, Hicks gave inconsistent testi-
mony. He testified that when he first talked to Minor in
Baggett's presence she told them that Walker "just missed
her leg" with the bobbin, but later he testified she told
Compton-in a conversation during which, according to
Compton, Hicks was not present-that he "hit her on the
leg" with the bobbin. In these circumstances and because of
the other inconsistencies in the testimony of Hicks and
Compton about what Minor told them-and even about
' Walker mistakenly testified that the union distribution took place on
August 19. Actually, other evidence shows that it occurred on August 17.
" After Compton had twice testified that Hicks was not present,
Respondent's counsel asked, in a leading question, whether Hicks "was not
there." Compton adroitly picked up the intended message and said "he may
have been" and, in response to still another leading question, Compton said he
could not recall. I do not credit Compton's testimony on this issue.
448
J. P. STEVENS AND COMPANY. INC.
whether Hicks was present, I cannot accept their testimony
about the circumstances leading to Walker's discharge.
I find that the reason which allegedly precipitated
Walker's discharge-the Lurine Minor incident-was a
pretext. The real reason for Walker's discharge was his
known union activities which took place within 2 weeks of
his discharge. The timing of the discharge offers persuasive
support for the finding that it was unlawful.
In addition to the inconsistent testimony of Hicks and
Compton on this issue, it is obvious that the Minor-Walker
dispute was truly a minor one, not warranting a warning or a
discharge. No other witnesses to the incident were sought to
explain the apparent conflict between Minor and Walker as
to what happened. The record herein demonstrates that on
other occasions Respondent sought to reconcile contradicto-
ry versions of events before imposing discipline. Indeed, it
appears that Minor herself did not want to escalate the
incident as much as Respondent eventually did because,
according to both Compton and Hicks, she expressed the
view that she did not want Walker discharged over the
incident. Moreover, there is evidence that, in the absence of
an atmosphere of union hostility, incidents of a much more
serious nature were resolved amicably without discipline and
discharge. For example, on one occasion, employee Larry
Meeks pulled a knife on Dorothy Mickles in the plant and
was merely asked to apologize to Mickles. It is clear that,
but for Walker's union activity, he would not have been
discharged on the basis of the Minor incident.
I turn now to the allegation that, in the spring and
summer of 1977, Walker was denied reemployment because
of his union activities and because charges had been filed on
his behalf.
The first charge that Walker was discriminatorily dis-
charged was filed with the Board on November 15, 1976.
Respondent received a copy of this charge. Walker testified
that after his discharge but before a conversation with
Supervisor Jimmy Minor, which is discussed infra and
which took place some 6 months after his discharge-in
about February 1977 he talked with a black man in the
personnel office about getting a job at the plant. I find that
this man was Leon Irby. According to Walker, he filled out
an application on this occasion or on one of his other three
visits to the plant when he spoke with Irby. Irby told him
that there were no positions available. Personnel Director
Compton testified that Respondent's records did not reveal
that Walker had filed an application. Irby did not testify.
According to Walker, about February 1977 Walker had a
conversation with Supervisor Jimmy Minor, with whom
Walker was acquainted because Walker was friendly with
Minor's daughter and often visited Minor's house. Walker
told Minor he wanted to get his job back. Minor replied that
he would look into the matter and try to help him. About 3
weeks later they engaged in a second conversation at Minor's
home while Walker was visiting Minor's daughter." Walker
testified as follows concerning Minor's remarks:
A. He was starting to talk about the Union and all
and said it wasn't no good and he told me that I'd never
get another job with another company because I was
taking J. P. Stevens to Court and that he tried-he went
i The transcript reference to this incident is in error. It states Walker was
"seeing [Minor's] dog." It should read Minor's "daughter."
into the office and asked them about my job and all and
they told him that they could not rehire me because I
had a charge filed against the company and that he
almost got fired for even trying to get me on.
Q. He almost got fired for trying what?
A. To get me back on.
Q. Did he say anything else to you as to what you
should do?
A. He told me I ought to drop my charges against the
mill and go talk to Mr. King and tell him that I did not
drop the charges to get my job back, that I dropped my
charges because I wanted my job back.
Walker was not cross-examined on this matter.
Minor testified substantially as follows: He essentially
confirmed the first conversation with Walker, although his
testimony was slanted towards helping Walker "get a job"
without acknowledging that Walker had previously worked
at Respondent's plant. He had known Walker for 2 or 3
weeks at the time of this conversation because Walker had
been dating his daughter. Minor also testified that he next
talked to Walker about 2, 3, or 4 months later-he was very
vague-after Respondent's lawyers read the "complaint"
against Respondent to assembled supervisors and Walker's
name was read. His testimony about the second conversation
differs significantly from Walker's. He characterized his
remarks to Walker as being his personal opinion. Minor
denied having talked to Compton before this conversation.
I credit Walker's version. I found Walker to be a candid
and straightforward witness. His testimony was supported
by Compton's testimony that Minor had admitted making
the statements alleged in the complaint at a meeting of
Respondent's officials. Minor, on the other hand, was
evasive, and some of his testimony on this matter was vague
and implausible. Despite the fact that Walker was dating his
daughter and visiting his home almost daily, Minor testified
that he did not make inquiry about a job for Walker as he
had promised and did not even know that Walker had
worked for Respondent or was discharged until Walker's
name was read to supervisors by Respondent's lawyer. I find
this implausible. Minor testified that he learned between the
first conversation and the second that Walker's name had
been mentioned as an alleged discriminatee. He testified that
he did not ask about a job for Walker thereafter because he
knew on his own that it was fruitless to ask because Walker
had filed charges. But this does not explain why he did not
ask before he allegedly learned of Walker's charges. Respon-
dent was obviously hiring during this period, and Minor
allegedly thought Walker was applying for the first time
with Respondent.
In view of my credibility determination, I find that Minor
told Walker that he was not eligible to be rehired because an
unfair labor practice charge was filed on his behalf against
Respondent and that he should drop his charge and tell
Compton of this fact. I also credit Walker's testimony that
Minor told him he "almost got fired for trying to get me
on." Such remarks are violative of Section 8 (a)( 1) of the Act.
This finding also buttresses my findings concerning the
unlawful character of Walker's original discharge. In addi-
tion, it is uncontradicted that Walker made application for
449
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work-at least orally-at the plant after his discharge. His
application was not acted on, and Minor's remarks offer
persuasive support for the finding that Walker was denied
reemployment, or at least not considered for reemployment,
because of his union activities and because an unfair labor
practice charge had been filed on his behalf. This was
violative of Section 8(a)(3), (4), and (1) of the Act.
5. Melvin Boyd
Melvin Boyd, a yarn man, was discharged on September
14, 1976. He was employed since June 1975, and at the time
of his discharge he worked on the first shift in mill 2. He
signed a union card on July 29, 1976, "talked union" at the
plant, and attended union meetings which began in early
August. He distributed union leaflets at the front gate of the
plant on August 17 and September 9, 1976. On the first
occasion, Personnel Director King Compton and Ron
Talley, his supervisor, walked by Boyd as he was passing out
leaflets. Boyd was wearing a large blue hat which he had
worn on other occasions, and Talley had often chided him
about the hat."
Boyd's job as yarn man consisted of taking spun yarn off
shelves near the machines, weighing the yarn, recording the
weight, and packing the yarn. The yarn is placed in a yarn
box and taken to a scale for weighing. The production
workers are paid on the basis of the weight of the yarn, and
when the yarn is packed there is a slip placed in the box that
indicates which yarn man packed the yarn; In August 1976
Boyd's job was rearranged so that he and the other yarn man
on the shift weighed the yarn for particular spinners in their
mill.
Boyd was fired on September 14 for "poor performance."
His termination notice cites prior warnings and specifically
mentions "improperly weighing and reporting yarn." The
last three warnings in Boyd's file dealt with weighing the
yarn of Lois Thrower at 119 lbs. instead of 135 lbs. (warning
of September 8), recording yarn weight in the wrong column
on her production sheet-a matter which was immediately
corrected (September 9), and failing to weigh "a doff of
Helen Haynes' yarn" (September 13).
The evidence on these three incidents, which Respondent
contends precipitated the discharge, is as follows:
Lois Thrower testified about one occasion where Boyd
misweighed her yarn. She testified she was running new yarn
and, after she observed the posted weight on her production
sheet, she questioned Boyd whether "that [was] all the yarn
weighed." Since she thought the weight was off, she asked
the fixer, James Mann, to weigh it; he did and it weighed 135
lbs. instead of the 119 lbs. Boyd had indicated. She did not
complain to a supervisor, and the next she heard about the
matter was "a few days after the incident happened" when
Culberson asked why she did not report the incident to him.
" I credit Boyd's testimony over Talley's denial that he observed Boyd
passing out literature. In addition to Talley's unreliable testimony discussed
elsewhere herein, I find that Respondent knew as a general matter the identity
of those who passed out union literature at the plant. I do not rely on Boyd's
testimony that he specifically identified himself for the Union in a conversa-
tion with Talley. However, it is clear that Talley was watching Boyd closely
shortly before his discharge, and it is likely he was aware of Boyd's open and
widespread union activities.
" I credit Boyd on his account of this conversation and discredit Culberson.
She replied that she did not think this was necessary because
she had "straightened it out." Talley issued a written
warning to Boyd for this offense. It was dated September 8,
1976.
Talley testified he was in the winding room the next day
when Boyd weighed Thrower's yarn and observed that Boyd
noted the weight on the wrong column on the production
sheet. Boyd placed the number under the column for a
different kind of yarn than Thrower was running. Talley
pointed out the mistake, and Boyd corrected it immediately.
Talley did not let the matter rest but drafted a written
warning on the incident, noting that this was the second
error Boyd had made on Thrower's yarn in 2 days. The
warning is dated September 9, 1976. I do not credit Talley's
testimony that he showed this warning to Boyd at the time
or gave him an opportunity to sign it, acknowledging
receipt. Boyd, who could not read, was quite candid in
acknowledging receipt of written warnings in his file and
being given verbal warnings; he denied seeing this warning.
Talley was unsure of when he wrote up Boyd for this offense
and, based on his demeanor in answering questions on this
point and his general unrLliability as a witness, I do not
credit his testimony. At first he testified that he wrote up
Boyd on the same day the incident occurred, but then, when
he realized that the production sheets were dated September
8 and the warning September 9, he volunteered that he
"wrote him up the next day." Nor did he give any details
about the warning interview. Moreover, I find it implausible
that an employee would be written up for such an insignifi-
cant error which was corrected on the spot unless it was
prompted by some motive other than legitimate business
considerations. That Talley did write up Boyd for this
insignificant matter shows that Talley was watching Boyd
with an eye toward building a record against him because of
his union activities.
On September 13 Haynes complained that a doff of her
yarn had been packed by Boyd before it was weighed.
Culberson estimated the weight and marked this estimate on
her production sheet. Later, he sent for Boyd, talked to him
about the matter, and sent him home before the end of the
shift. The next day Boyd was discharged by Culberson, who
told him that it had been decided at a conference to dismiss
him. Culberson said that Talley had "been keeping secret
notes on [Boyd] and watching [him] close[ly]." Boyd asked if
he were being fired because he was a union supporter, and
Culberson denied this."
I find that Respondent issued warnings to Boyd for his
last three offenses in order to build a record to support his
discharge on a pretext to mask its discriminatory motive for
ridding itself of a known union supporter who had recently
distributed union leaflets at the plant.
The evidence shows that Boyd was subjected to disparate
treatment for his misweighing mistakes. The record shows
Other evidence indicates that Culberson and Talley were monitoring Boyd's
conduct, as shown by Talley's petty written warning of September 9 and
Culberson's talking to Thrower about Boyd's misweighing her yarn "a few
days" after the fact and complaining that she did not report the incident to
him. Thus, both Culberson and Talley were actually "watching" union
adherent Boyd as they "watched" union leaders Willie Townsend and J.B.
Jefferson. In these circumstances. I find that Culberson mentioned to Boyd in
the discharge conversation that Talley was watching him.
450
J. P. STEVENS AND COMPANY, INC.
no discharges for improper weighing or recording of yarn
and only two other warnings for this "offense." These were
issued in August 1976 to employee C. L. Canty, who was not
discharged. I reject Compton's testimony that Canty was not
disciplined because his performance after his warnings
improved to such an extent that he received a commenda-
tion. Respondent did not produce the commendation.
Compton claimed it could not be found. I find Compton's
testimony incredible in view of the extensive records
Respondent kept on employees, some dating back several
years. Moreover, one of Canty's warnings indicates he had
been off 35 lbs. in weighing an employee's yarn and that this
was the second time he had been warned for this offense.
The very next week Canty was warned for having mis-
weighed the yarn of several employees. These were more
serious derelictions than Boyd's two misweighing mistakes,
and yet Canty was not otherwise disciplined or discharged.
Indeed, the evidence supports the finding that such incidents
were normally treated as "mistakes" rather than chargeable
"offenses" for which warnings were issued. Misweighing and
failing to weigh yarn was not uncommon, according to
several employee witnesses. Thrower's reaction to Boyd's
mistake is an indication that such a mistake was not viewed
as justifying a disciplinary warning, surely not a written
warning. And Mill Overseer Marvin Hicks testified that
there were "problems" with at least one other yarn man, Bill
Kennedy, who was not issued a written warning notwith-
standing his problem. Indeed, at one of the Skidmore
grievance meetings, an employee complained that the yarn
was not being weighed properly because of an inaccurate
scale.
Boyd's two mistakes in weighing yarn were obviously
isolated. Haynes testified that she only had trouble with
Boyd on one occasion. Thrower likewise had no other
trouble with Boyd. Thrower did not even complain to a
supervisor; she straightened the matter out herself. Although
Boyd obviously made a mistake in Haynes' case, her concern
was that her production be recorded properly and it was
when Culberson estimated her weight. Yet Boyd did much
work for both employees over a period of months which was
error free, Thrower testified that Boyd weighed her yarn
three or four times a day, 5 days a week for approximately 4
or 5 months. She ran about 500 to 600 lbs. of yarn per day.
Similar isolated mistakes were not shown to be the subject of
warnings and discharge, although the "problem" was not
uncommon. Indeed, the two misweighing incidents of
Boyd's were de minimis, in comparison to the good work he
did not only for Thrower and Haynes, but also for
employees Joyce Seamon and Gracie Wright, who testified
that Boyd did not make any errors in the weighing of their
yarn.
Respondent felt the need to add a third written warning to
Boyd's record for an insignificant error which was immedi-
ately corrected-that of misrecording the weight of Throw-
" There were four doffers on the shift; three worked so-called full jobs and
one worked on what was called the short job, which involved less frames than
the others but which also involved helping the section man and other duties.
The short job is hourly paid; the others are paid by production.
' The above is based on the credited testimony of Purter. He was
corroborated in the material aspects of his testimony by Carson. Despite some
ambiguity in their testimony, there is no doubt that the meeting was prompted
by and dealt with complaints about Hogan. Both Harrelson and Siegleman
er's yarn. This shows that Respondent was more interested
in writing up warnings for Boyd's file than in supervising or
correcting his work and bears upon Respondent's entire
conduct toward Boyd in the last 2 weeks of his employment.
The supervisors involved-Talley and Culberson-had
teamed up in monitoring the work of union leaders Town-
send and Jefferson-and they obviously collaborated in
Boyd's case with the same discriminatory purpose in mind.
In short, the reason asserted for Boyd's discharge-poor
performance based on misweighing and failure to weigh
yarn-was a pretext. Contemporaneously with Respondent's
pretextuous and contrived warnings based on close and
purposeful monitoring of Boyd's work, Boyd passed out
union literature on August 19 and September 9. At the time
of his discharge Boyd was told that he was being "watched"
by Talley. It is reasonable to infer that it was Boyd's union
activities and not his misweighing of yarn which precipitated
his discharge on September 14, and I so find.
6. Richard Purter
Richard Purter worked for Respondent for approximately
5 years prior to his termination on November 3, 1976. He
had quit in February 1975 but was rehired again in April of
that year. At the time of his discharge Purter was employed
as a "doffer" on the third shift in mill 3. His shift overseer
was David Harrelson. Since his reemployment in April 1975,
Purter had received only one warning-in August 1976 for
tardiness. Harrelson described his capabilities as a doffer as
"excellent, "great," and "very good."
On August 10, 1976, Purter attended a union meeting and
signed a union authorization card. One or two days later,
Purter and fellow doffers Gray and Carson, both of whom
also signed union cards, had a meeting with Harrelson
wherein they complained about the distribution of work and
especially that a nonunion doffer, Claude Hogan, was not
working out on the so-called short job." In the course of this
conversation, Purter said he was for the Union and would be
glad to see the Union "come in and straighten out the job."
Harrelson referred the employees to Mill Overseer Charles
Siegleman, and they made the same complaint to him."
At or about this time in early August, Purter, who
attended six or seven union meetings before his discharge
and handed out three union cards in the plant, undertook to
help union committeeman Jerry Davis by copying down the
names of spinning department employees on his shift. Purter
did this openly at the timeclock and in the breakroom
between 12 and 12:30 a.m. one night. Purter testified that
Harrelson saw him copying down these names.
In addition, in September 1976 Purter and Gray spoke
with Hogan about the Union during a conversation in the
breakroom. All three witnesses testified about such a
conversation and, although their accounts differ somewhat,
it is clear that Purter and Gray were attempting to get
testified that the three doffers had such meetings with them to complain about
Hogan in August 1976. credit Purter and Carson, over Harrelson's denial, to
the effect that Purter made a prounion declaration at this time. Moreover.
Gray's testimony is corroborative of Purter and Carson on this point,
although he placed Purter's declaration-as well as his-at a different time in
a different conversation. I found Harrelson not to be a reliable witness in
attempting to justify Purner's discharge and thus do not credit his denial that
Purter made a prounion declaration to him.
451
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hogan to sign a union card and that Hogan refused. Hogan's
account mentions Purter as the more active solicitor and,
according to Hogan, Purter called him a "cheese eater," a
derogatory term signifying his close relationship to manage-
ment. Purter and Gray testified that Harrelson was present
and overheard the conversation. Hogan and Harrelson
testified that Harrelson was not present. I find that Harrel-
son was present. As I have indicated, I found Harrelson not
to be a reliable witness on the Purter discharge, and
Hogan-although he seemed to be a candid witness on some
matters-was evasive on the issue of whether management
knew of or observed union activity. He seemed quite
defensive when testifying about Purter's "cheese eater"
accusation. I thus reject Hogan's denial that Harrelson
overheard the September conversation.'"
Purter's union activity was significant, open and well
known. Harrelson knew from Purter directly that he was a
union supporter in August 1976. The fact that he overheard
Purter's September conversation with Hogan simply con-
firms Respondent's knowledge of Purter's union activity.
Purter was discharged on November 3, 1976, after an
incident which took place the night before. At approximate-
ly 10:30 p.m., fixer Doug Livingston came to Purter and
explained that Carson, the doffer on the number 1 job, had
not come to work. On instructions from Harrelson, Living-
ston asked Purter to move from his short job to the number
I job and cover for Carson. Purter refused. He said he could
not handle the smaller bobbins on the Carson job. Later,
Harrelson approached Purter and told him to take the
number I job. Purter asked why he had to change from his
short job to the number I job. Harrelson replied that
someone had to doff the job. Putter refused, stating that he
could not handle the job. Harrelson then told Purter to hit
the clock. Purter left the plant.
The following day, Mill Overseer Charles Seigleman
called and told Purter that he was being discharged for
refusing to run an assigned job and that he should come to
the plant to pick up his check.
Purter testified that he did not want to leave the short job
to take the number I job because he was unfamiliar with the
manner in which the machines on the number I job
operated. He explained that there was a different startup
procedure for the machines on the number I job. Since the
short job was an hourly paying job, whereas the number I
job was paid on production, Purter felt that he might not be
able to make production. Purter credibly testified that in the
past he had refused to work jobs and had suffered no adverse
consequences. There was other evidence of similar refusals
which went unpunished, and it is undisputed that there was
a longstanding policy at the plant that a transfer from one
job to another in the same job classification was voluntary
and not mandatory.
Respondent contends that this policy was changed in late
September or early October-about a month before Purter's
discharge-and that a transfer request such as was made to
Purter, which could have been refused a month before, could
not be refused when Purter was discharged. I reject
Respondent's contention and find that Purter's discharge for
" Hogan was no longer employed by Respondent at the time of the hearing.
He was flown to Montgomery from Lansing, Michigan, by Respondent which
also paid for his lost wages for testifying.
refusing a job transfer was a pretext and that the real reason
for Purter's discharge was his known union activity. The
discharge came shortly after Respondent learned of Purter's
union activities.
As far as the record shows, Purter's discharge was the
only one which was prompted by the so-called change in
policy. At no point during the time when Respondent was
attempting to get Purter to switch jobs or when it was
contemplating his discharge was there any discussion or
consideration of the fact that there had been a recent change
in policy which made voluntary transfers within a job
classification suddenly mandatory. Nor was Purter ever told
that the change in policy meant he could be discharged for
his refusal. In fact, Purter was treated differently from other
employees who were not punished for refusing transfers
within a job classification. Respondent admitted as much
when it conceded that it had a longstanding policy that
transfers within job classifications were voluntary and not
mandatory until right before Purter's discharge. In particu-
lar, the disparate treatment of Purter is shown by Respon-
dent's failure to discipline antiunion employee Claude
Hogan I month before for doing exactly what Purter did on
November 3. Hogan was a new employee whose work had
brought complaints by his fellow workers, whereas Purter
was a veteran employee who had a fine, basically warning-
free, record and was an "excellent" doffer, according to
Respondent.
One month before Purter's discharge-apparently on
September 27, 1976-Hogan, who had been employed since
April 28, 1976, as a "learning doffer," refused to transfer
from his short doffer's job to a full job. According to Hogan,
Harrelson asked him to transfer to Fred Gray's doffing job
because Gray was out sick. The section man was to take over
the short job. Hogan refused the transfer because "it was too
much work" and Harrelson told him to "hit the clock."
Hogan did not clock out; he left the building, then "realized
I had sort of made a mistake" and went back, apologized to
Harrelson, and offered to doff Gray's job.0 Harrelson told
him it was "too late" because he had "closed that section
down" and sent the spinning employees home. Hogan then
left. He came back to work the next night. Employees
remarked that they thought he was fired, and Harrelson
approached Hogan and said "well, I would have fired you
last night if you wouldn't have come back and told me you
would doff that job." Hogan was not otherwise disciplined
and no one else ever talked to him about the incident.
Harrelson's testimony about the Hogan incident contra-
dicts Hogan's in several important respects. Harrelson
testified that Hogan returned after 10 minutes, not 30, as
Hogan had testified. It is undisputed that the spinning
employees were sent home. But Hogan also testified that,
after he returned, Harrelson told him he could "help the
spinner or cut lap or go home" and that he chose to go
home. Harrelson's account does not contain any such
request. Hogan also testified that Harrelson told Hogan the
next night that he would have been fired the night before
had he not come back to apologize. According to Harrelson,
he did not talk to Hogan about the matter-he was too busy
" Hogan testified that about one-half hour elapsed between the refusal and
the apology to Harrelson.
452
J. P. STEVENS AND COMPANY, INC.
the next night-until after Respondent changed its policy I
or 2 days later in such a way as to make Hogan's conduct
improper. Harrelson also testified that he intended to
discipline Hogan and ordered him to report to Siegleman the
next day, but that he found out "the next morning I was
wrong" because Siegleman told him that the policy at West
Boylston was that employees could refuse transfers within
their job classification. According to Harrelson, after the
change in policy, he talked to Hogan and told him that his
refusal would no longer be improper-"that our practice
had been changed now that doffers are required to do it
especially since he was on the job." Hogan did not
corroborate Harrelson. His testimony is that Harrelson told
him that it was his apology that prevented his discharge, not
that Hogan's refusal was proper, as Respondent now alleges.
I reject Respondent's contention, based primarily on the
testimony of Siegleman and Harrelson, that Purter was
treated differently from Hogan because a change in policy
was effectuated shortly after the Hogan incident. According
to Siegleman, the very next day, at a general overseers'
meeting, Skidmore-who did not testify-ordered a change
in a policy, which Siegleman described had been in effect for
"quite some time." From then on, employees would be
required to transfer to other jobs in the same job classifica-
tion, and this made Hogan's conduct improper-as Harrel-
son originally thought. Siegleman testified that he left
Harrelson a note to this effect. Harrelson confirmed this,
although he also testified that the change in policy was
communicated to him orally. According to Harrelson, after
work one night, Siegleman, stopped by and said, "oh, by the
way, from now on a doffer is a doffer and a spinner is a
spinner. We can move them if we need to, and I said okay."
I find it difficult to believe that a change of a longstanding
policy would be handled in such a casual manner.
In any event, Respondent did not announce this alleged
and sudden change in policy to employees. I reject Harrel-
son's testimony that he told Hogan and Purter separately;"
if there were indeed a change in policy, he would have told
all his employees, most probably in a group. Harrelson did
testify that he told his fixers to tell the employees but never
"followed up" to see if this had been done. Nor was such a
change mentioned when Purter was discharged.
In sum, Respondent's explanation of the Purter discharge
fails to withstand scrutiny. One month before Purter's
discharge, Hogan did the same thing that resulted in
Purter's discharge and he was not issued a warning or
disciplined. Indeed, Hogan's dereliction was more serious
since it resulted in the closing of the spinning section.
According to Harrelson, he intended to discipline Hogan but
" Harrelson testified that he told Purter that "if we had a doffer out he was
expected to go to the full job" when he appointed Purter to the short job in
mid-October 1976. This is hardly evidence of an announcement of a change in
policy. In any event, he did not notify Carson and Gray or any of his other
employees, which would have been natural if the policy was plantwide and
general, as he and Siegleman testified. He did not remind Purter of the change
in policy when he tried to get Purter to run the number I job. And Hogan
failed to corroborate Harrelson's testimony that Hogan was notified. Indeed,
Harrelson's unreliability as a witness, which is demonstrated by his entire
testimony about the Purner-Hogan matters, is illustrated by his attempt, after
having described Purter as an excellent doffer, to deprecate him by suggesting
he was "absent all the time" and did not do his job. Based on my observation
of Harrelson as a witness, I believe he was straining to create the impression
that Purter had specific knowledge of the so-called change in policy.
" In its brief, Respondent argues that an incident involving Punter, Fred
found out from Siegleman that Hogan was within his rights
in refusing the transfer. Harrelson allegedly did not know of
this policy which, according to Siegleman, was one of long
standing. The very next morning, however, according to
Siegleman, the policy was changed and transfers within the
same job classification became mandatory. This change
allegedly applied plantwide and would have made Hogan's
refusal improper. Yet there is no evidence of a general
announcement of this change in policy, and Purter was the
first casualty-by discharge-of the change in policy. There
is no credible evidence that the change in policy was
mentioned to Purter when he was ordered to take the
transfer or when management officials decided to discharge
him. Purter, who was admittedly an excellent and veteran
employee, was discharged. Hogan-an employee for only
several months with a questionable record-was retained
without even being issued a warning. The disparate treat-
ment of the two employees was attributable to the fact that
Hogan was known to be an antiunion employee and Purter
was known to be prounion.
In these circumstances, I find that Purter's discharge was
a pretext, that he was treated in a disparate manner in view
of the many incidents-including the Hogan incident-of
Respondent not disciplining employees who refused job
transfers within their own classification. Purter-an admit-
tedly excellent doffer with 5 years' experience and a good
record-was discharged because of his widespread, recent,
and well-known union activities.'
7. Marva Watkins
Marva Watkins began working for Respondent in July
1973. At the time of her discharge, on October 4, 1976, she
was a unicone winder operator on the second shift in mill 2,
under the direct supervision of Shift Overseer Joe Ludlum.
During her employment she received numerous warnings-
18 for low production and 2 for insubordination or refusing
orders of supervisors-but she was not otherwise disciplined
and was apparently valued as an experienced winder
operator notwithstanding her occasional difficulties.
Watkins was an active union supporter. She signed a
union card early in the campaign-on July 28-and attend-
ed union meetings from the beginning of August until her
discharge. She handed out leaflets in front of the plant,
including once in August before the beginning of her shift,
which, in view of other evidence herein, particularly the
testimony of Dorothy McGhee Williams, I infer was an
occasion during which Supervisor Bobby Ball observed the
leafleteers. She also distributed leaflets inside the plant on
Gray. and Supervisor Jimmy Minor "reflects on the credibility of both Purter
and Gray as witnesses." I disagree. The incident took place in March 1977
shortly after the discharge of Fred Gray. According to Purter, Gray and
Purner came to the plant in a pickup truck and confronted Minor in the
parking lot. In the midst of a conversation, Gray pointed at a rifle on the
dashboard and said "we got something here for you." Purter said nothing.
Minor's version is compatible with Purter's except that he attributed an
additional threatening remark to Purter. I credit Purter's version because of
Minor's general unreliability as a witness and because, despite Minor's
testimony that he reported the matter to the police. Compton, who allegedly
accompanied Minor to the police station, testified that Minor spoke about
swearing out a warrant only against Gray. In view of this testimony and
because Gray had been discharged shortly before the incident, I find that
Gray and Gray alone made the threat to Minor.
453
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her break and handed out at least one card in the plant
which was signed by another employee and returned to her.
Watkins testified that she identified herself to Ludlum as a
union supporter along with a group of other employees
sometime in August and participated in a conversation with
Ludlum about the Union in the breakroom. Ludlum denied
these incidents took place and denied he knew of Watkins'
union activity. According to Watkins, she and fellow
employees spoke with Ludlum about a recent change in rates
and Watkins asked whether the change was implemented
because of the Union. Ludlum denied any connection. There
were also remarks about the plant shutting down. Watkins
attributed to Ludlum a remark about the warehouse being
"full of yarn" which was understood by employees as a
prelude to layoffs and shutdowns. Another employee, Linda
Hall, testified to a similar conversation in the breakroom
where she asked Ludlum if the plant would shut down if the
Union came in and Ludlum refused to answer the question.
The testimony of Watkins and Hall is too ambiguous and
inconsistent for me to make any specific findings, but it is
clear from their testimony that Ludlum participated in a
lunchroom conversation, which included Watkins, where
the Union was discussed. In these circumstances, and in
view of Ludlum's generally unreliable testimony concerning
the Watkins discharge, I reject Ludlum's denials that he
knew of Watkins' union activities. I find that Watkins did
identify herself to Ludlum as a union supporter and also
participated in a conversation about the Union with Lud-
lum.
In addition, Watkins' union activity was open and, in view
of Culberson's testimony that he knew generally of union
activity which took place within his mill, it is likely that
Ludlum, one of Culberson's supervisors whose contact with
Watkins was more frequent, knew of her particular union
activity. Finally, she was observed-probably by Bobby
Ball-passing out union literature outside the plant. Thus,
Respondent was well aware of Watkins' union activity and
affiliation.
The circumstances surrounding Watkins' discharge are as
follows:
On Friday, October I, near the end of the shift, Ludlum
approached Watkins and told her that the wax on her
machine needed to be changed. Machines such as Watkins'
utilized wax discs on each of their 72 spindles. The wax
coats the yarn to make it run more easily through the
machinery and to prevent the yarn, especially thin yarn,
from snapping. Watkins repeated an earlier complaint she
had made to Ludlum that the first-shift winder tender did
not change the wax at the end of her shift and Watkins was
forced to change her wax at the beginning of her shift.
Watkins usually changed her wax as needed. Watkins
noticed that Linda Hall's wax was thin and worn and that
she had left her machine and was cleaning up and getting
ready to punch out."
Shortly thereafter, Ludlum again approached Watkins
and asked her to change her wax. Watkins protested and
complained that Linda Hall had not changed her wax but
" There is no requirement that winders change the wax at the end of their
shifts but, according to much testimony, it is to be changed when the old wax
is worn thin and needs replacement. It may need changing more than once per
shift. According to Ludlum, it is expected that employees leave their jobs in
good shape at the end of a shift.
that no one was bothering her. She also told Ludlum to get
off her back. Ludlum told Watkins not to worry about other
employees and to change her wax or hit the clock. Hall in
fact had left her machine to clean up before punching out
but was subsequently told to change her wax and did so.
Ludlum sent a section man, Wayne Bates, to tell Hall to
come back and change her wax. Hall testified that she had
forgotten to change her wax.
After Watkins finished cleaning up, she approached the
timeclock and found her timecard missing. Ludlum had
removed the card. Watkins then left the plant. Ludlum
"wrote her out" at 9:30 and reported the incident to Mill
Overseer Robert Culberson. After this Friday shift, Watkins'
machine would not be used until the following Sunday night.
The next Monday, October 4, 1976, Watkins reported for
work at her usual time but was met at the timeclock by
Culberson, who asked her to report to the personnel office.
Watkins was discharged that day for insubordination."
I find that Respondent's reason for discharging Wat-
kins-refusing to change her wax at the end of her shift-
was a pretext. The real reason was Watkins' known union
activities. Respondent had ro clear or consistent policy with
respect to an employee's failure to carry out a supervisor's
instructions. Watkins herself had been warned but not
otherwise disciplined for two other refusals to abide by the
instructions of a supervisor. For one such refusal, in May
1975, she was sent home. That such conduct was tolerated
unless it involved a particularly serious matter is shown by
Culberson's testimony that he thought Watkins' warning for
the May 1975 incident was "proper," as well as another
incident involving Joyce Seamon where she simply received
a warning and a suspension for a refusal to work. Respon-
dent's tolerance for such misconduct is confirmed by
Respondent's failure to discipline antiunion employee Ho-
gan a few days before the discharge of Watkins for refusing a
supervisor's instructions to transfer to a particular job. On
that occasion, the entire spinning section had to be closed
down and several employees had to be sent home.
Ludlum himself tolerated refusals to follow instructions.
For example, although Ludlum initially denied he had
encountered other employees who refused his instructions,
he recanted when shown two warnings which he had
prepared concerning an employee named Ida Freely where
she twice disobeyed his instructions within a 6-week period.
Freely was first warned for leaving her job in bad condition
at the end of her shift and stating that she did not care and
that if Ludlum did not like the way she was running her job
he could fire her. Subsequently, Freely was warned for
refusing to come in to work for insufficient reasons. Ludlum
admitted that these were incidents of insubordination which
did not result in discharge.
Watkins' alleged dereliction was much less significant. At
most, it involved a difference of opinion as to whether the
wax needed changing at the end of her shift. Even if the wax
did need changing, it was Watkins' complaint that she had
to change the wax at the beginning of her shift and was
leaving her machine in the same condition in which she
" The above is based on the testimony of Watkins which I credit to the
extent that it conflicts with that of Ludlum whom I did not find to be a
reliable witness.
454
J. P. STEVENS AND COMPANY, INC.
found it. The machine was not going to be used for 2 days,
and clearly the decision as to whether a simple wax-changing
operation had to be performed could have been left to the
next operator. Indeed, Ludlum admitted that the problem of
employees failing to change their wax was a common one-
that he had had to talk to many employees "about leaving
their jobs in good shape."
Watkins was a known and active union supporter. She was
an experienced employee whose past derelictions had been
tolerated before the onset of the Union. Her last warning for
refusal to follow instructions was over 7 months before her
discharge. Watkins' failure to change her wax-the incident
which prompted Ludlum's order-was insignificant except
as magnified by Ludlum's determination to accuse Watkins
of insubordination. Moreover, other employees had refused
instructions on more serious matters and they had not been
discharged. The discharge was engineered by Ludlum, the
supervisor who had specific knowledge of Watkins' union
activities and Culberson, who has been found elsewhere in
this decision to have watched or sanctioned watching
employees to establish pretexts to mask discriminatory
conduct. In these circumstances, I find that the real reason
for Watkins' discharge was her union activities.
Other circumstances support the finding of unlawful
motive. Ludlum allegedly left Watkins' winding machine as
it was and called Culberson at home to tell him what
happened. Culberson came in the next day, checked Wat-
kins' machine, and confirmed that it needed fresh wax. This
seems to have been an unusual step unless Respondent was
looking for a reason to discharge Watkins. Indeed, Culber-
son was involved in the monitoring of the work of other
prounion employees-Townsend, Jefferson, and Boyd. He
had even instructed that a prounion section man, J. B.
Jefferson, be written up for failing to tell an employee to
change her wax in early August. Moreover, on the night in
question, Ludlum pulled Watkins' timecard before she had a
chance to punch out and wrote her up as having left at 9:30.
However, Hall's testimony clearly indicates that Ludlum
and Watkins were still quarreling about 9:50 when she
returned to change her wax. All of this evidence supports the
inference that Respondent was looking for a reason to
discharge Watkins.
I am reinforced in my view that the discharge was a
pretext when I consider Ludlum's testimony. Ludlum
impressed me as a wholly unreliable witness who was more
interested in supporting Respondent's litigation positions
than in giving a candid answer. In addition to portions of
"Bates did not testify.
'h Respondent claimed that the September 19, 1973. discharge of Ethel
Beamon was for refusing to change the wax on her winder. Documentary
material concerning Beamon was admitted into evidence through Personnel
Director Compton, who had no personal knowledge of the discharge or the
incidents leading up to it. Beamon's termination notice of September 19 was
signed by Culberson and stated she was fired for refusing to do "what she was
told to do." Beamon also received a verbal warning, dated September 17, for
refusing to change her wax in circumstances much more serious than
Watkins' refusal, and refusing to "start up" about 20 of her spindles.
According to a notation on the warning by George Luster, the supervisor who
wrote it, Beamon reacted angrily to his order and Luster thought Beamon was
going "to slap me.
I cannot accept the evidence submitted as establishing that Beamon was
fired solely for refusing to change her wax. The termination notice states that
she worked on September 18, between the date of her warning and her
discharge, thus suggesting that some other incident precipitated her discharge.
Ludlum's testimony which I have already discussed, I cite
the following: When he first testified, Ludlum was intent on
establishing a justification for Watkins' discharge, and he
stated that he personally checked every spindle on the
machines using wax twice that day. When he was recalled,
he was intent on establishing the supervisory status of
section men and testified that it was the section man's job to
check on the wax, although he later was forced to concede a
dual responsibility. Yet he went so far as to testify that, on
the night of Watkins' refusal to change the wax, he had
Wayne Bates, a section man, doublecheck whether her
machine needed wax-a fact he had not mentioned in his
first appearance on the stand." Moreover, Ludlum was
inconsistent on the issue of whether the failure to change
wax was a prevalent problem. In response to a question as to
whether he had problems with other employees forgetting to
change their wax at the end of a shift, he testified that he had
"caught" from 8 to 12 others "every night" and that "at one
time or another I have had to talk to some of them, if not all
of them, about leaving their jobs in good shape." This
obviously related to the wax-changing problem. When he
realized his answer had weakened Respondent's position on
the Watkins discharge, Ludlum became evasive. And by the
end of his testimony, in response to my question, Ludlum
stated that he did not have to tell winders to change their
wax "very often" because they were experienced."
Accordingly, I find that Respondent discriminatorily
discharged Marva Watkins because of her union activities.
8. William Minnifield
William Minnifield was employed as a draw-frame tender
on the second shift in mill 3. He was employed from
November 1975 to September 2, 1976, when he was
discharged. Minnifield signed a union card on August 9,
1976, and declared his union membership to Supervisor
Jimmy Minor shortly thereafter in the presence of another
employee. He also acted as a witness for a similar declara-
tion by fellow employee Hayward Banks, and Banks
returned his signed authorization card to Minnifield to
return to a union representative. Minnifield attended about
five or six union meetings from the beginning of August
until he was fired on September 2. Respondent recorded
Minnifield's name as a union supporter on its master list
under the date of August 10, 1976.
On August 20 Minnifield was sent home from work,
ostensibly because he did not have a knife to cut yarn in
Beamon's timecards which were introduced into evidence are not elucidating.
More importantly, neither Culberson nor Luster testified about the incidents
of their own personal knowledge. Thus, Respondent failed to establish that
Beamon's discharge was motivated by her refusal to change her wax. Indeed,
Culberson testified that he did not know if he ever fired anyone else for
refusing to change wax. Surely, if Respondent had fired Watkins pursuant to a
consistent practice, of which the Beamon discharge was part. Respondent
would have relied on the Beamon discharge at the time of the Watkins
discharge and not late in the litigation of this case. Finally, even assuming
Beamon were discharged for refusing to change her wax, her documented
insubordination was more serious than that of Watkins, there were man)y
other incidents of insubordination which were not punished, and Beamon
herself was rehired, thus indicating that her "offense" was not thought to have
been so serious as to permanently sever her employment with Respondent.
Thus, the evidence does not establish the validity of Watkins' discharge or
rebut the overwhelming evidence of discriminatory motivation in Watkins'
discharge.
455
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
connection with his job. His timecard shows he punched in
at 2 p.m. and punched out at 3:31 p.m. He had lost his knife
and sought to use the knife of another card tender and a
friend, Robert LaPrade. His supervisors, Jimmy Minor and
Charles Siegleman, did not permit him to borrow LaPrade's
knife and did not otherwise provide him with a knife. He
was not permitted to return to work until August 25. On
August 24 he participated in a conference with Minor,
Siegleman, and Personnel Director Compton. A warning
notice in Minnifield's file, dated August 24, stated that
management officials talked to Minnifield concerning his
"very poor attendance, lack of cooperation, and coming to
work without the necessary tools" and that they would give
him one more chance to improve his "overall" job perfor-
mance. Compton offered to supply Minnifield with a knife
after he said he could not afford to purchase one. Minnifield
reported for work on August 25 and every working day
thereafter until he was discharged.
I reject Respondent's contention, based on the testimony
of Supervisors Minor and Siegleman, that its discipline of
Minnifield on August 20 was motivated by legitimate
business reasons. Minor testified that he observed that about
3 p.m. Minnifield had done very little work, and he asked
Siegleman whether he should send Minnifield home. Siegle-
man said no, because "we need the drawing [Minnifield's
work product] so bad" and said to "wait and see" if
Minnifield was going to produce. Minor then talked to
Minnifield and was told Minnifield had no knife. A
conversation then ensued between Minor, Siegleman, and
Minnifield, wherein the supervisors said that Minnifield
could not borrow LaPrade's knife because their production
would suffer if they shared a knife. Siegleman stated, "Well,
if you can't borrow a knife you'll just have to go home
because you can't run your job without it." Thereafter
Minnifield was sent home and told to wait until Respondent
got in touch with him to return. Respondent also alleges that
another employee had to be sent home because of Minni-
field's failure "to produce."
Respondent's treatment of Minnifield on this occasion
was discriminatory. It is clear from Minor's testimony that
Minnifield was sent home because he did not have a knife,
not because of poor production. It is inconceivable to me
why Respondent would not have elicited from Minnifield
that he did not have a knife before 3 p.m. if Respondent
really was concerned about his alleged failure to produce.
Moreover, it is inconceivable that Respondent would, on the
one hand, have expressed a need for Minnifield's "drawing
so bad" and, on the other hand, failed to come up with a
knife and suffer the obvious loss of production which
eventuated from sending two employees home. Siegleman
testified that he probably had a knife in his possession.
Indeed, after Minnifield returned to work on August 25,
Compton gave him a knife and, after Minnifield's discharge,
Respondent began supplying knives to those employees who
needed them. In short, the whole incident was contrived to
harass and punish Minnifield for his recent union activity,
which was made known to and noted by Respondent, in
order to provide a record of unsatisfactory performance
preparatory to his discharge or to force Minnifield to quit.
" There was thus no possibility of his being paid for an extra M-hour's work.
According to Respondent's records, Minnifield was dis-
charged on September 2, 1976, "due to repeatedly reporting
to work late after being warned." The discharge notice
mentioned that Minnifield was late for work on August 25,
26, 27, and 30, at which time he received a "verbal
warning"; and that he was late again on September I "at
which time he was sent home." The August 30 warning
stated that Siegleman talked to Minnifield about reporting to
work late and that he had punched in at 2:06 on that day.
Minnifield's timecards show that on August 25, 26, and 27
he punched in at 2:04, 2:05, and 2:02 respectively; starting
time was 2 o'clock. It was conceded that, in mid-September,
tardiness was redefined to make it an offense only if the
tardiness were 6 minutes after the hour. Compton claimed
that the policies of various supervisors were inconsistent on
this matter and admitted that the harsher policy was
"unreasonable." On Saturday, August 28, Minnifield report-
ed for work on time and on Tuesday, August 31, he reported
to work early, at 1:43, and was paid for 8-%2 hours of work.
On the last 2 days of Minnifield's employment, September
1 and 2, he showed up for work well before the beginning of
the shift at 2 p.m. On September I he drove his car to the
plant and parked in the median area in front of the plant. He
then punched in and went outside to move his car to a better
parking place on the street in front of the plant as first-shift
employees left the premises. Minnifield had utilized this
procedure rather consistently since the beginning of his
employment because of an acknowledged parking problem
and because he had a relatively new car which he did not
want damaged as occasionally happened when cars were
parked elsewhere. In addition, cars parked in the median
area were unlawfully parked and sometimes ticketed. Other
employees also utilized the same procedure used by Minni-
field and, as stated above, employees often complained of
parking problems at the plant; these complaints were aired
at the Skidmore grievance meetings in August.
Siegleman testified that on September I he observed
Minnifield punch in early and then go outside. He then told
Minor to get Minnifield's timecard which they noticed was
punched in at 1:44. Minor scratched out the entry, allegedly
to avoid payment of an extra one-half hour's wages, which
was the policy when an employee punched in 15 minutes
early. Siegleman testified: "So we waited at the time clock til
William came back, and he came to the door and we called
him over to the clock ... and ... we repunched his card"
at 2:06. Siegleman asked Minnifield where he had been, and
Minnifield responded that he had been parking his car. After
being told that he should report to work early enough to find
a parking space and report to work on time, Minnifield was
brought to see Personnel Director Compton, who basically
told him the same thing, including a remark that his
procedure of punching in early and then leaving to park his
car was the equivalent of "stealing." Minnifield was sent
home for the remainder of the day. According to Compton,
Minnifield asked if he were fired, and Compton said he was
not.
The next day, September 2, Minor saw Minnifield punch
in and leave the plant again, as he had done the day before.
This day, however, he punched in at 1:50 or 1:53." Minor
went to Siegleman and reported this to him. Siegleman told
When presented with this fact, Minor gave the incredible explanation that
456
J. P. STEVENS AND COMPANY, INC.
Minor to pull Minnifield's timecard. This was done, accord-
ing to Siegleman, and, when Minnifield returned, the two
supervisors were waiting for him. They asked him where he
had been, and he replied he had been parking his car.
Minnifield's card was repunched at 2:06 "to show he
actually reported to go on his job late," according to
Siegleman. Minnifield was brought to Compton's office
where he was discharged after complaining that he had
followed the same procedure for parking his car since the
beginning of his employment and referring to the parking
problem at the plant.
I find that Respondent discharged Minnifield because he
was a known union adherent. Within 10 days of having
recorded Minnifield's name as a union supporter, Respon-
dent sent him home on a contrived incident because of his
union activity. His supervisors told him to stay home until
he was called by phone to return to work. He returned to
work on August 25 and performed satisfactorily-having
been provided a knife by Respondent-until his discharge
for lateness.
The reason offered for Minnifield's discharge-tardi-
ness-was a pretext. On his last 2 days of employment,
Respondent's officials monitored his conduct and accused
him of reporting to work late. On both occasions, Minnifield
punched in early and left the plant-as he and others had
often done in the past-to repark his car in a permanent
parking place where it would not be ticketed or vandalized.
In view of the evidence that this procedure was followed by
Minnifield and others, as well as the well-documented
parking problems at the plant, I find that Respondent's
monitoring of Minnifield's actions on September I and 2 was
highly unusual and motivated by something other than
legitimate business reasons.
That Respondent's asserted reason-tardiness-was a
pretext is also shown by the fact that Respondent admittedly
failed to conduct a survey of employees who had tardiness
warnings before discharging Minnifield. Respondent alleged-
ly followed such a procedure in tardiness discharges. Nor
was Minnifield's overall tardiness record offered into evi-
dence by Respondent. Indeed, only two of the prior
warnings in his personnel folder made any reference to
tardiness. The first was in January 1976 and the second on
August 30, 1976. The latter warning refers to a single
instance of being more than 6 minutes late but refers to three
other incidents of being late less than 6 minutes. However,
after Minnifield's discharge, Respondent conveniently recog-
nized that tardiness of less than 6 minutes did not justify
warnings. In contrast, there is considerable evidence of
Respondent's tolerance of tardiness much more serious than
Minnifield's without any effort to discipline or discharge the
offenders. Thus, Minnifield was treated in a disparate
manner when Respondent cracked down on his rather
insignificant tardiness offenses as compared to the much
more serious tardiness problems which were left undiscip-
Respondent was concerned about its insurance liability if Minnifield had "any
accident out there after he's... on the clock" and that this was discussed as
a basis for Minnifield's discharge.
" Banks' warnings are themselves suspect. Minor testified he was ordered to
write up Banks. The September I warning simply states that Banks punched
in early and left to park his car. The September 9 warning states that he
originally punched in at 1:50 and was observed by Compton returning at 3
minutes past two. Banks was not shown to be late on either occasion:
lined and which are discussed more thoroughly in the
discussion concerning the discharge of union adherent Alvin
Pinkard.
Minnifield was also the subject of disparate treatment
insofar as his alleged offense in leaving the plant was
concerned. In addition to evidence that numerous employees
punched in and left to repark their cars without being
monitored by Respondent, another employee, Hayward
Banks, was actually caught twice doing the same thing as
Minnifield but he was not discharged. He received warnings
for this offense on September 1 and 9, 1976. No other
warnings for this offense appear in the record, and any
necessity to prevent employees from leaving to repark their
cars was obviated by the construction of a new and much-
needed parking lot. Respondent argues that the less stringent
treatment of Banks was justified because, unlike Minnifield,
Banks had a good employment record and that an adverse
inference of disparate treatment should not be made because
Banks was also a union supporter. These arguments are not
persuasive. Bank's employment record is not in evidence, but
he was not sent home or required to have his timecard
repunched as was Minnifield. On September 1, Minor and
Siegleman "stopped" Minnifield as he returned, but Banks
went back to his job. Minnifield was clearly the more active
of the two union supporters. Banks returned his union card
to Minnifield after signing it; and Minnifield's name ap-
peared on Respondent's list of union supporters, whereas
Banks' did not."
My finding of discrimination is buttressed by the fact that
Siegleman and Compton sought to expand on the reasons for
Minnifield's discharge at the hearing beyond the reason
stated in his discharge notice. Compton listed lack of
cooperation, bad record, and low production. Yet nothing
was mentioned about these matters in the discharge notice
which did not even refer back to the August 20-24
suspension of Minnifield.
Minor testified that Minnifield was considered a valuable
employee "for production." Indeed, the termination notice
was quite specific that Minnifield was being discharged for
tardiness after repeated warnings. It did not even emphasize
the "offense" of leaving the plant to repark a car except
insofar as it constituted a tardiness offense. In these
circumstances, it is reasonable to infer that any work-related
deficiencies that Minnifield may have exhibited during his
employment which were not mentioned in his discharge
notice were not motivating factors in his discharge. Indeed,
Respondent's effort to reach back for these further reasons
in support of his discharge shows that the real reason for his
discharge was something else, Minnifield's union activities.'"
The General Counsel also specifically alleges that Respon-
dent refused to rehire Minnifield in early or mid-1977
because of his union activities which had by then resulted in
charges being filed on his behalf alleging that his discharge
was unlawful. Compton conceded that Minnifield called him
Compton testified that he did not consider tardiness of less than 6 minutes to
be an offense; and Banks was not "stealing" because he was not shown to have
punched in 15 minutes before the hour. Thus it is difficult to see why Banks
was written up at all
" In view of my findings that the August 20-24 suspension of Minnifield
was motivated by discriminatory considerations, Minnifield is entitled to
backpay for loss of earnings suffered during that period.
457
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
twice in mid-summer 1977 to ask if jobs were available.
Compton told him he did not know of any openings or did
not think there were any openings but invited Minnifield to
make formal application and said he would keep him in
mind. The evidence herein shows that numerous employees
were rehired by Respondent after being terminated-even
after being fired for cause. Documentary evidence also
shows numerous job vacancies and new hires throughout
1977. The evidence also shows-notably the rehire of
employee Hughes by Mill Overseer Culberson-that a
formal application for employment was not an absolute
prerequisite. Moreover, Compton's testimony is that he
encouraged Minnifield to reapply but that he did not
reconsider Minnifield for reemployment despite Minnifield's
obvious interest. He did not reject Minnifield because he was
allegedly a bad employee who had been fired for cause. This
would have been a likely response if that were the case,
especially since Compton had been prominently involved in
the events leading to Minnifield's discharge. As the Second
Circuit has stated in analyzing a similar situation:
[T]he Company can refuse to rehire on any number
of valid grounds such as incompetency, no vacancies,
etc., and as long as it makes its position clear as
Respondent did not], it will not be in difficulty.
N.L.R.B. v. The Syracuse Stamping Co., 208 F.2d 77, 80
(1953).
In these circumstances, I find that Respondent refused to
rehire or, at the very least, refused to consider for rehire
employee Minnifield for the same reason it had earlier
discharged him-his union activities. Respondent thus
independently violated Section 8(a)(3) and (1) of the Act.
9. Calvin Rumph
Calvin Rumph began working for Respondent in January
1976 as a slubber tender. In May 1976 he transferred to the
shop and became an electrician's helper. He worked with
electrician James Ragsdale on the first shift under the
supervision of Adie Walls and Jim Farrell. On January 1,
1977, Lavelle Daniels replaced Farrell as shop supervisor.
Rumph was discharged on February 11, 1977.
Rumph was an active union supporter. He signed a card
on August 17 and distributed union cards in the plant. He
also distributed union leaflets outside the plant three times in
August. On one such occasion, he was accompanied by
Alvin Pinkard, another union activist, and he was observed
by supervisors as they came to work. Rumph attended union
meetings and announced his union support to Farrell. When
Alvin Pinkard announced his union affiliation to Lavelle
Daniels, Rumph was present; when Rumph announced his
union support, Pinkard was his witness. Rumph's name
appears on Respondent's list of union supporters under the
date of August 18, 1976.
Two weeks later, Rumph, whose job often required him to
visit the supply room, which was manned by fellow union
supporter Pinkard, was told by Walls that if he were seen
again in the supply room he would be discharged. This is
based on the credible testimony of Rumph whom I found to
" This testimony by Rumph was not contradicted since Farrell did not
testify.
be a reliable and honest witness. Walls admitted that he told
Rumph that he would discharge him if he went into the
supply room without supervision, but he testified he did so
because Rumph stayed in the supply room for excessive
periods when he should have been working. If this were true,
the reprimand and threat of discharge would have resulted
in a written warning or notation. Respondent issued many
such warnings, and its policy calls for discharge only after a
verbal and a written warning. No such warning was issued
to Rumph. In these circumstances, and because of Respon-
dent's discriminatory treatment of Pinkard, its knowledge of
the union activity of both, and Daniels' admitted knowledge
that they were "friends," I find that the threat to Rumph
was made in an attempt to keep him away from union
advocate Pinkard and not for some legitimate complaint
about his work.
Sometime in September, Rumph had a conversation with
Personnel Director Compton in the latter's office. Rumph
expressed his support of the Union, and the two talked about
Respondent's opposition to the Union. At this meeting,
Compton read Respondent's antiunion orientation statement
to Rumph. I have found that the statement contained
unlawfully coercive references to "serious harm" which
might result if employees chose a union to represent them.
Rumph also complained about his low wages, stating that
relatives of managerial people, including Plant Manager
Skidmore's son, were making more than he was. He also
mentioned that this is what caused him to support the
Union. Compton promised to look into the matter.
Shortly thereafter, Rumph received a wage increase of 15
cents per hour. Documentary evidence shows that the
increase, which brought Rumph's pay up to $3.30 per hour,
was granted on October 21, 1976. The document contains a
notation that Walls reminded Rumph of the importance of
"staying on the job." In November Supervisor Jim Farrell
approached Rumph concerning a pamphlet being distributed
about the Union's 2-year strike against the Farah Manufac-
turing Company, asked if he could stand a strike that long,
and advised Rumph to "think" before he made "any
decision you might regret.""'
On November 13, 1976, Rumph's name appeared on the
Union's charge that Respondent had been discriminating
against prounion employees. His name also appears on
amended charges filed in December 1976 and on January 28,
1977.
Sometime in January 1977, Rumph appealed to Pete
Green, in a conversation described in more detail in another
section of this decision, to avoid a planned transfer of
Rumph to another shift. The transfer would have interfered
with his night-school classes. After Rumph's conversation
with Green, the proposed transfer was dropped.
On January 13, 1977, Rumph received an additional 15-
cent-per-hour raise to bring his wages to $3.45 per hour. The
document which announced the raise contained a notation
that Daniels was not satisfied with his performance and
expected improvement. Nothing more specific was men-
tioned.
The very next day, January 14, Rumph was summoned to
Daniels' office. Daniels, Walls, and Personnel Director
458
J. P. STEVENS AND COMPANY, INC.
Compton were present. During this meeting, Daniels in-
formed Rumph that he had learned that Rumph had
allegedly informed other employees that the Union had
obtained the recent wage increase for him. Rumph attempt-
ed to deny the accusation, but Daniels was insistent that
Rumph not speak and continued to criticize Rumph over the
alleged conduct. Daniels expressed anger and disappoint-
ment toward Rumph. He told Rumph that he was responsi-
ble for getting Rumph the raise and that the Union had
nothing to do with it. Compton also expressed his disap-
pointment, stated that Rumph had been hired as a favor to
his mother, and lamented that Rumph had not been fair to
Respondent by attributing his raise to the Union.
There was no serious controversy as to what happened at
the January 14 meeting. However, I found Daniels' testimo-
ny on this matter contrived and evasive. He testified that his
anger-he reluctantly conceded he was a "little upset"-was
attributable to the fact that Rumph did not give him credit
for the raise and that Rumph was hindering other employees
while talking about the raise. This is not quite accurate. The
personnel director was present at this meeting and expressed
Respondent's disappointment that Rumph gave credit for
the raise to the Union. Daniels testified he did not consider
the meeting a disciplinary session and did not issue a
warning to Rumph. Considering all the testimony, including
the demeanor of Daniels, who impressed me as a volatile
person-contrary to the impression he intended to create
about his conduct in the meeting-I believe that Daniels
expressed Respondent's outrage that Rumph would attribute
a raise given to him by Respondent to the Union. In
addition, Compton's remarks implied that Rumph's job was
dependent on his favoring Respondent rather than the
Union. The incident not only gives credence to the notion
expressed by the Supreme Court that promises and grants of
benefits in a union campaign are often meant to suggest the
"fist inside the velvet glove" (supra), but also demonstrates,
in my view, a continuing hostility by Respondent directed
toward Rumph because of his union activities.
Rumph was discharged about I month after his confron-
tation with Daniels-on February 11, 1977-after an inci-
dent which occurred early that morning. The evidence
concerning this incident is as follows:
Electrician Ragsdale, who was not a union supporter, and
Rumph were working in the shop on a machine called a
traveling cleaner. Ragsdale left and was instructed by his
supervisor, Daniels, to tell Rumph to go to mill 3 and repair
a draw frame machine. Rumph complained, saying, "Damn,
Ragsdale, every time there is work to be done I wind up
doing it." As Rumph was walking out of the shop to attend
to the job assignment, he, Bruce Duke, the air-conditioning
mechanic, and Ragsdale exchanged words. Rumph called
Ragsdale a "sorry s.o.b." or something to that effect. Duke
and Rumph testified that he used the initials; Respondent's
witnesses testified he used the words "son of a bitch."
Ragsdale reported the incident to Daniels, and Daniels came
to the shop and asked if Rumph had called Ragsdale an
s.o.b. Rumph admitted he had. Daniels immediately left the
*' It is irrelevant whether the remark was "s.o.b." or "son of a bitch." The
evidence is quite clear that profanity of either sort and worse was prevalent in
the plant and particularly by shop employees, including Ragsdale.
"' At other points in his testimony. Daniels said that his discharge decision
was also based on Rumph's lack of cooperation and refusal to follow
instructions. Daniels' testimony on this issue is thus unreliable.
area and reported the matter to Personnel Director Comp-
ton.
Rumph continued working. Apparently Rumph fixed the
draw frame in mill 3 which, according to Daniels, simply
involved fixing "a loose knock-off wire." There is no
evidence that Rumph did not perform the assigned task.
After lunch Compton called Rumph into his office and
heard Rumph's side of the story. Rumph admitted that he
called Ragsdale an s.o.b. Compton sent Rumph home, and
the next day Rumph was fired, according to his termination
notice, for "unsatisfactory job performance and repeated
lack of cooperation."
The only significant conflict in the testimony of the
participants concerning the discharge is that Compton-and
to a certain extent Daniels-attempted to create the impres-
sion that (1) Respondent was concerned with Rumph's
refusal to perform an assigned job; and (2) that Rumph
refused to do an assigned job rather than simply complaining
about it. I do not credit the testimony of Compton and
Daniels in this respect. All accounts of the Daniels-Rumph
confrontation-including Daniels'-show that Daniels did
not mention the alleged refusal to fix the draw frame to
Rumph. Daniels' testimony, particularly on cross-examina-
tion, is illuminating since he was quite adamant in stating
that his complaint against Rumph was the latter's language,
which he said at one point caused him to discharge
Rumph."' Daniels also identified his complaint against
Rumph as Rumph's "cussing" and "bad mouthing" Rags-
dale, which he called an "on-going thing." 2 Moreover, I find
that Rumph did fix the draw frame machine. He testified
that he continued working; a good deal of time elapsed
between the incident and when he was sent home. Ragsdale
admitted that, as far as he knew, the job was completed and
he did not do it. Neither Respondent nor its witnesses ever
contended to the contrary. I thus credit Rumph's testimony
that his words with Ragsdale were simply in the form of a
complaint about his job assignment and not a refusal to
perform the work."
Compton tailored his testimony not only to state that
Daniels reported the refused work assignment to him, but
also that Rumph admitted that he refused to fix the draw
frame. Daniels' testimony about his report to Compton was
vague. Rumph denied admitting to Compton that he refused
a job assignment. Significantly, neither Compton nor Dan-
iels testified that Rumph did indeed fail to fix the draw
frame or made any investigation of that fact. Nothing on
Rumph's termination notice states that he refused or failed
to perform an assigned task; such a notation does appear on
other termination notices in evidence in this case where
appropriate. It is thus clear that Respondent focused on
Rumph's use of language rather than any refusal to perform
an assigned task, and any testimony to the contrary is
discredited.
Rumph was actually discharged because of his union
activities. Respondent had knowledge of his union activities
and sympathies and vented its union hostility directly
towards Rumph on several occasions. Walls threatened
" Bruce Duke's testimony is essentially corroborative of Rumph's, although
he testified that the complaint occurred earlier in the day and that Rumph
offered to help Ragsdale.
459
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rumph with discharge for being in the supply room with
Pinkard, another union supporter, who was also fired;
Daniels angrily criticized Rumph for attributing his raise to
the Union; Compton specifically impressed on him the
"serious harm" which might befall employees who chose to
support the Union; and Farrell warned him against making
any decision about the Union he might regret. Despite
Respondent's contention that raises were given to him as
incentives and not rewards, the fact remains that Rumph
was given two raises in the last 4 months of his employment,
the last just 4 weeks before he was fired. Plant Superinten-
dent Gregory conceded that more than one raise would not
normally be given to an employee who was not performing
"well." Accordingly, Rumph was an unlikely candidate for
discharge but for his known union activities.
Respondent's asserted reasons for the discharge fail to
withstand scrutiny and offer further support for the finding
of discrimination. As I have indicated, Daniels and Comp-
ton seized on a minor incident to precipitate the discharge.
They attempted to magnify a simple complaint about a job
assignment into a refusal to perform the job and to magnify
the common use of profanity in the plant into a dischargea-
ble offense. The incident itself was minor, and the reasons
offered for Rumph's discharge were pretexts.
Respondent's further argument that Rumph was a bad
employee, particularly in his lack of cooperation with
Ragsdale, is without merit. If he were such a bad employ-
ee-and for so long-why would Rumph have been given
raises in October 1976 and again in January 1977? Rumph
received only one warning for lack of cooperation with
Ragsdale-in late January, shortly before his discharge and
after Daniels' outburst against Rumph for attributing his
raise to the Union. Rumph was not asked to sign the
warning. Thus, it was a verbal warning under Respondent's
nonmenclature, and Rumph's discharge in the absence of a
prior written warning would be contrary to Respondent's
written policy that a verbal warning be followed by a written
warning and a suggestion that disciplinary action may
follow. Moreover, as Ragsdale described the incident which
led up to the warning, it was obvious that the incident itself
was minor: Rumph fixed a machine, it broke down again,
and Rumph fixed it again. Despite Daniels' testimony that
Rumph's lack of cooperation with Ragsdale was a constant
and longstanding problem, Ragsdale testified that he only
complained about Rumph to Daniels one time, that Daniels
said nothing in response to his complaint, and that Daniels
never asked Ragsdale's opinion of Rumph's work. In these
circumstances, it is clear that Daniels exaggerated Rumph's
deficiencies, and I reject his testimony concerning the reason
for Rumph's discharge.
Compton's testimony is equally unreliable on the issue. He
testified that he went so far as to check with Jim Farrell-
Rumph's former supervisor-before firing Rumph and that
Farrell confirmed that "he had had problems with Rumph
and talked to him on several occasions about not coopera-
ting with Ragsdale." Farrell was not called as a witness to
i The General Counsel alleges that in August 1976 Pinkard, an ordained
minister, was harassed by being refused time off to perform funeral services.
The evidence on this issue was much too confusing for me to base any findings
of harassment on it. Pinkard apparently met with Plant Superintendent
Gregory and discussed his need to have time off for religious purposes as well
as accusations by Daniels of poor work performance. The meeting was
corroborate Compton, and no documentation-such as
warnings-of Farrell's alleged conversations appear in the
record. Moreover, Ragsdale testified that he only com-
plained once to Farrell about Rumph and that Farrell said
nothing in response.
In these circumstances, I find that Respondent discrimi-
natorily discharged Calvin Rumph because of his union
activities.
10. Alvin Pinkard
Alvin Pinkard was employed by Respondent for 5 years
before he was terminated on October 25, 1976. He was
supply room clerk on the first shift, which began at 6 a.m.,
under the supervision of Lavelle Daniels. When necessary,
another employee substituted for Pinkard in the supply
room.
Pinkard was active in the union campaign. He signed an
authorization card dated August 9, 1976. Thereafter, in the
company of fellow employee Calvin Rumph, he declared his
support of the Union to Lavelle Daniels. Pinkard also acted
as a witness when Rumph advised his supervisor of his
support of the Union. In addition, Pinkard distributed
authorization cards to employees, attended union meetings,
and distributed union handbills on two occasions in August
and September 1976 at one of the plant gates before the
beginning of his shift. He was accompanied by Rumph and
Willie Townsend. There is a conflict in testimony as to
whether supervisors observed Pinkard distributing leaflets.
Based on my observation of Pinkard, who impressed me as a
reliable witness, and the other evidence in this case, I believe
Pinkard's testimony that he was observed by supervisors
when he passed out union literature.
Shortly before he was terminated, probably sometime in
October 1976, Pinkard was talking about the Union with
employee Morris Cummings in the second-floor restroom.
Cummings mentioned that Pinkard would make a good
union president and that he was the only one qualified to
serve as president. Pinkard said that, if elected, he would
serve. Supervisor Ron Talley entered the restroom and
overheard part of this conversation. He said there was not
going to be a union and if the men wanted to work under a
union they could go to work for another local firm which
was organized. On another occasion in October, Pinkard
complained to Talley about another supervisor insulting his
wife who also was an employee at the plant. Pinkard told
Talley that both he and his wife were supporters of the
Union. Talley confirmed that he confronted Pinkard and
Cummings in the restroom on one occasion but denied there
was any discussion about the Union; he also confirmed the
second conversation with Pinkard about his wife but denied
that the Union was mentioned in that conversation. I credit
Pinkard. I have found Talley to have been an unreliable
witness elsewhere in this decision.6
Pinkard's discharge on October 25 came shortly after he
engaged in union activities and after he had been observed
inconclusive except that perhaps Respondent became more aware of Pinkard's
needs and of his willingness to assert himself which, as this record shows,
Respondent does not view as a positive quality in an employee. In any event,
none of the evidence is particularly relevant in determining whether
Respondent fired Pinkard for his union activities or for his tardiness record.
A60
J. P. STEVENS AND COMPANY, INC.
and confronted by supervisors in the course of this activity.
On October 5 Daniels placed a handwritten document in
Pinkard's file recounting a conversation he had with Pinkard
about the latter's having called in sick the day before at 6:23,
instead of before 6 a.m. This was not on Respondent's usual
warning-notice form, and as far as I can tell this was not an
"offense" on Pinkard's part and it certainly was an excused
absence and not a tardiness offense. The appearance,
however, of this notation in Pinkard's file, with a precise
reference, to the minute, of Pinkard's call shows Daniels'
animus towards Pinkard and his interest in building a record
against Pinkard because of Pinkard's union activity. In
addition, there is evidence, discussed more fully in the
section on Calvin Rumph's discriminatory discharge, that
Respondent attempted to keep these two prounion employ-
ees apart.
Pinkard was discharged, according to Respondent's rec-
ords, "for reporting to work late." This reason was a pretext.
The record indicates that Pinkard's tardiness had been
tolerated before the Union campaign and, despite the fact
that his record improved significantly after he signed a union
card, he was discharged. Pinkard had been issued warnings
throughout his employment for reporting to work late; prior
to the union campaign, only one of these-dated May 31,
1976-appears to have been a written warning since it is
designated by the words "refused to sign." From January 1,
1975, until the date of his discharge, Pinkard punched in late
over 200 times. On many of these occasions he was over 6
minutes late." After August 14, 1976, Pinkard was late only
two times: once in September and once on October 25 when
he was discharged after punching in 8 minutes late. He was
issued warnings for tardiness on August 16 for the August
14 tardiness and on September 20 for a 28-minute tardiness
on September 17. This warning recounted his past record,
including the notation that he had been late 16 times since
January 1, 1976.
The General Counsel and Charging Party submitted
documentary evidence showing that a number of other
employees were frequently tardy but were not issued
warnings or otherwise disciplined. From January 18, 1976,
to November 1, 1976, nonunion employee Billy Childs was
late on 105 occasions; on 51 of these occasions he was late 6
minutes or more. From mid-August to the end of October,
he was late 33 times; 18 of these times he was late 6 minutes
or more. Yet Childs was not issued a warning notice until
October 28, 3 days after Pinkard's discharge and as a direct
result of an alleged review prompted by Pinkard's discharge.
Childs, unlike Pinkard, had not signed a union card at this
point. In addition to Childs and Pinkard, whose tardiness
was tolerated before the onset of the Union, the records of
employees Humphrey, Betty Rhodes, who was also super-
vised by Daniels, Hurd, Vance, and Stevens show that these
employees were habitually late and were not issued warnings
or otherwise disciplined for tardiness in 1976."6 Indeed, one
employee, Alfred Hamilton, who had been issued a warning
for tardiness in February 1976, was issued another warning
in December but was not fired at this time; the warning
stated that he had been late 21 out of his last 24 days of
" Daniels, his supervisor, considered an employee late only if he punched in
6 minutes after the hour.
' Hurd was issued warnings in April 1977 for tardiness.
work. Hamilton had not signed an authorization card. On
the other hand, union adherent Pinkard had made a
significant improvement in his tardiness record. He had been
late over 6 minutes only twice in the last 2 months of his
employment.
The evidence discussed above shows that Respondent
tolerated tardiness before the onset of the union campaign in
late July or early August 1976 and that enforcement of a
tardiness policy, if any, was inconsistent and lax. Indeed,
there was no policy as to when a particular employee would
be issued a warning for tardiness, and the record shows only
one employee, Julius Carter, was discharged for tardiness
before the onset of the union campaign. However, several
supervisors testified that in at least one mill-that supervised
by Siegleman, there was a crackdown on tardiness after the
onset of the Union. This is supported by documentary
evidence of tardiness warnings which shows a considerable
increase in warnings after July 29, 1976, about the time
when authorization cards were first being signed."'
In view of Respondent's longtime tolerance of habitual
tardiness, I find that the increase in warnings was occasioned
by the Union's presence. However, even after the crackdown
there was no consistent policy as to when a warning was
issued. The evidence shows, however, that Pinkard was the
subject of disparate treatment. For example, in December
1976 Hamilton was warned only after 21 incidents of
tardiness in 24 days; and Childs was warned for the first
time in October 1976 after an abominable record of tardiness
in the past 2 months. Pinkard, on the other hand, was
warned in September for a single tardiness. What is
significant is that neither Childs nor Hamilton had signed a
union card.' In these circumstances, Respondent's dis-
charge of Pinkard is explainable not by the pretextual reason
advanced by Respondent, but by Pinkard's known union
activities which were contemporaneous with his discharge.
I do not credit the testimony of Compton and Daniels
concerning the motive for Pinkard's discharge. Daniels did
not impress me as a candid or reliable witness. His hostility
against Pinkard was reflected in his demeanor, and his
testimony about another employee of his who had tardiness
problems is inherently implausible. Employee Betty Rhodes
worked under Daniels' supervision for about 9 months as a
supply room clerical employee. She had a tardiness problem
which was documented in an exhibit received in evidence in
this case. This exhibit shows that from January 1976 until
the end of May 1976, when she apparently quit, Rhodes was
late 41 times; 10 times she was late 6 minutes or more.
Daniels knew of Rhodes' tardiness problem, and he testified
he talked to her about it but never issued her a written
warning. According to Daniels, she quit before he could take
"drastic measures" against her. I find this testimony
incredible, particularly in view of Daniels' propensity for
writing up employees as well as writing notes on employees
which he allegedly kept in his desk drawer.
Compton's testimony is likewise unreliable. He testified
that, when a supervisor seeks to discharge an employee for
tardiness, he makes a survey of the employee who has the
worst record of tardiness warnings at the plant and dis-
b There were substantially more tardiness warnings issued in the 8-week
period after July 29 than there were in the first 7 months of 1976.
" Childs signed a card in 1977.
461
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charges that employee if he or she has sufficient warnings,
whether or not that employee has the worst actual tardiness
record or is the one first complained about. Compton
testified that this procedure was followed before Pinkard's
discharge and on one or two occasions in the last 5 months
of 1976, but he did not give any specific examples."
However, he conceded he did not conduct such a survey
before Minnifield's discharge, testifying that his was not
"purely a tardiness case." Yet Minnifield's discharge notice
states quite clearly that he was discharged for tardiness.
There was no corroboration of Compton's alleged policy in
writing even though there was admitted into evidence
written statements of Respondent's absenteeism and dis-
charge policies. Nor was Compton corroborated in this
respect by other supervisors, all of whom testified before
Compton in this proceeding. Furthermore, Compton's al-
leged policy makes no sense in view of Respondent's
inconsistent and lax policy concerning warnings for tardi-
ness. Compton testified that he was instrumental in chang-
ing another alleged policy in mid-September 1976 to make
tardiness an offense only after an employee was 6 minutes
late rather than I minute; he professed to be concerned that
the harsher-but admittedly inconsistent- application of
tardiness rules practiced by some supervisors was "unrea-
sonable." Yet it is difficult to see how Compton could
engage in the survey that he allegedly did in Pinkard's case
and possibly compare warnings which had been issued in an
inconsistent manner. Some employees were not issued
warnings for tardiness, some for being 6 minutes late, and
some for being I minute late.
Indeed, Compton's testimony on the alleged Pinkard
survey not only refutes his overall testimony about an
alleged policy but is inconsistent with that of Daniels.
Compton testified that, shortly after Pinkard's discharge,
Daniels brought the tardiness record of nonunion employee
Childs to Compton's attention and Compton undertook
another survey and found that Childs' record was bad
enough to warrant a warning. First of all, if Compton's
alleged policy was valid and nondiscriminatory, there would
be no need to conduct a second survey of Child's record,
except perhaps to make sure that Pinkard's discharge could
withstand an unfair labor practice charge based on disparate
treatment. Secondly, Compton testified that the Childs
matter came to his attention through Daniels, but Daniels
did not even supervise Childs at this point. Daniels, who
testified before Compton, did not even mention a Childs
survey and instead attempted to create the impression that
he was not involved in a review of Childs' tardiness record
until he began supervising Childs in January 1977.7° This is
significant because Pinkard was late only twice between
August 14 and his discharge: Childs was late more than 30
" Respondent did submit evidence that Julius Carter was discharged in
early 1976 after receiving four warnings over a 4-month period. But no
evidence was submitted that a survey was conducted before his discharge or
that his warning record was the worst at the plant.
" Daniels testified that he first became familiar with the tardiness record of
Billy Childs in January 1977 when he first took over supervision of the shop
and consequently of Childs. Before then, Childs worked under the supervision
of Jim Farrell. Compton, who testified later, stated that Daniels told him
shortly after Pinkard's discharge that he thought Childs might have a record
"nearly as bad as" Pinkard's. Compton checked Childs' file and found no
warnings for tardiness, but he had all of Childs' timecards pulled for about a
year and found that Childs did have a worse record than Pinkard's. He then
told Gregory, who called Childs to his office and issued him a final warning.
times during this period. Thus, I find that Compton clearly
tailored his testimony to concoct a policy to justify Pinkard's
discharge, and I reject his testimony as wholly unreliable."
In these circumstances, I find that Respondent utilized
Pinkard's tardiness record as a pretext to discharge him for
his union activities. :
11. Ed Beeman
Ed Beeman worked for Respondent for about 1-1/2 years
before his discharge on November 2, 1976. At the time of his
discharge he was employed as a slubber tender on the first
shift in mill . As a slubber tender he was paid by
production.
Beeman signed a union card on August 27, 1976. The next
day Beeman, in the presence of about 20 employees,
informed Mill Overseer Marvin Hicks that he had signed a
card. This group included employee Eunice Macon, who
testified that she identified for the Union with a group of
people in mid-August. Her testimony was confirmed by
employee Mike Hackbarth. Although no other employee
identified Beeman as being in the group, I credit Beeman's
testimony over Hicks' denial. I did not find Hicks to be a
reliable witness.
In late August or early September 1976, Beeman had a
conversation in the restroom about the Union with Shift
Overseer Woodrow Mullins, who took over supervision of
the slubbers on the first shift in mill I in late August 1976.
According to Beeman, Mullins asked him if he were working
for the Union. Beeman said he was. Mullins responded that
all the Union was good for was taking money out of a
person's paycheck and he said that there was no union in the
plant because Respondent had not signed a contract with it.
Mullins testified that he had a conversation with Beeman
about this subject for about 5 minutes at his job station and
that he also talked to other employees and told them the
same thing, that Respondent was against unions and we
"didn't have a union here." Mullins claims these conversa-
tions took place in the fall of 1976 and comported with
instructions from Respondent's counsel, Homer Deakins.
Mullins claimed he did not know of Beeman's union
support, and on cross-examination he testified he did not
know of any union activity until told by Deakins in about
June or July 1976. Of course this was impossible since
Deakins did not undertake to represent Respondent until
October and did not address the supervisors until the fall of
1976. 1 also find it incredible that Mullins did not know of
union activity generally, particularly in view of Culberson's
testimony about the openess of such activity in and outside
the plant, until he heard about it from Deakins. Indeed,
Mullins' testimony is internally inconsistent, for he testified
' At the hearing, I reserved ruling on Resp. Exh. 96, a compilation of gross
tardiness in minutes after a certain date, which purports to show that any
increase in warnings during the period after the beginning of the union
campaign was due to legitimate business reasons. I accept the exhibit ito
evidence but I find it of little persuasive relevance. The exhibit does not break
down the specific tardiness, the employees or supervisors involved, or the
warnings, if any, which issued as a result of the tardiness. Other evidence
shows that the issuance of tardiness warnings was inconsistent and that the
standards for warnings changed sometime in September.
': The misnumbering of certain pages in the transcript have been noted and
are hereby corrected.
462
J. P. STEVENS AND COMPANY. INC.
that he saw employees pass out union leaflets outside the
plant on one occasion and that one employee identified for
the Union to him, a fact which he reported to Hicks. Thus,
Mullins was less than candid in testifying about these
matters, and I do not credit his testimony.
Beeman's testimony, on the other hand, is credible on this
issue. His testimony is given added credence because
Respondent obviously knew, in early August, that his
mother, a first-shift spinning employee who lived at the same
address as her son, was a union supporter. Hers was the first
name on Respondent's master list of union supporters.
Mullins supervised the spinning department on the first shift
and also the slubbers. Thus, Mullins had an obvious interest
in finding out if Beeman was likewise a union supporter.
In these circumstances, I find that Mullins interrogated
Beeman about his union sympathies in violation of Section
8(a)(1) of the Act.
Beeman originally worked as a slubber tender on the
second shift in mill 1. According to Respondent, he asked
for a transfer to the first shift and was allowed to transfer
temporarily to that shift to replace Inez Harrell as a slubber
tender. According to Respondent's records, he ran her job
from April 20 to July 1976 while she was on leave of
absence. Sometime thereafter, Beeman was permanently
transferred to the first shift, replacing Fred Davis, who was
promoted to a section man's job. This transfer required that
Beeman operate three slubbers instead of the two which he
had previously been operating." The three new machines he
operated ran a thinner type yarn which often broke. The
transfer adversely affected his production and pay which
decreased after he was transferred to the three-slubber job.
Beeman was fired on November 2, 1976, after showing up
on the allowance sheet several times and being warned for
low production. Phillip Davis, who ran the three-slubber job
on the second shift, was also discharged for low production
at about this time. There is no doubt that Beeman's
production was low in the last 2 months of his employment,
but it is also clear that his work on the two-slubber job, prior
to his transfer, was satisfactory and he received no warnings
until early September 1976-after he signed a union card.
There is a conflict in the testimony of Beeman, Mullins,
Hicks, and-to a certain extent--other witnesses as to the
following: (I) When Beeman was placed on the three-slubber
job; (2) under what circumstances; (3) whether he asked to
transfer off that job and what response he received; (4) how
many written warnings he was shown-he says one; Mullins
and Hicks say four; (5) whether the difficulty of the job-it
was fairly obvious that his new job was more difficult than
the two slubber job-was due to the machine or insufficient
help from management or whether Beeman's admitted poor
performance was his own fault.
I find from all the evidence that Beeman was placed on
the three-slubber job in late July 1976-before he signed his
union card; that Beeman accepted the job voluntarily; that
he did poorly on the job from early September through
November 1, 1976; that he was warned about his low
production; that he tried to get off the three-slubber job; and
that Hicks, Mullins, and Personnel Director Compton knew
of his problems and knew that he wanted to get off the job. I
" The three-slubber job was also known as the number-two job, and the
two-slubber job was also known as the number-one job. Beeman was required
also find, as Compton testified, that he enlisted Beeman's
mother in an effort to get Beeman to perform on this job
which I also find was much too difficult for him to perform.
Beeman's immediate predecessor in the job was promoted to
section man, and Jerry Oliver-a frequency checker who
evaluated the job as part of his regular duties-credibly
testified that the job was a difficult one on which to make
production. Another operator on that job was also fired for
low production. Beeman was admittedly a good employee
when he worked on the two-slubber job and, as Hicks
testified, he had "real good potential" as a slubber tender.
But he had little experience, and the three-slubber job was
beyond his capabilities.
I find that Respondent discriminatorily denied Beeman an
opportunity to leave his oppressive slubber tender's job in
mid-September 1976 and transfer to a yarn man's job for
which he bid and was otherwise qualified to fill. At this
point, Beeman was having trouble operating the three-
slubber job and had just been issued a "final" warning for
low production. This was his very first warning as an
employee. He had signed a union card about 2 weeks before,
had been interrogated about his union sympathies by his
supervisor, and had candidly acknowledged his support of
the Union.
It is conceded that during Beeman's tenure on the three-
slubber job-sometime in September 1976-Beeman twice
bid on a yarn man's job to escape from the obvious
oppression of a job which was over his head. Respondent
rejected the bid because, even though Beeman otherwise
qualified in terms of seniority, there was an alleged policy--
or an interpretation of a policy-that employees could not
"bid down," that is-according to Compton-a person from
a higher classified job could not bid into a lower classifica-
tion. Compton testified that this was "our interpretation" of
the Respondent's bidding policy set forth in written form in
January 1976 until he was notified to the contrary by Otis
Little, a divisional manager of Respondent, in early 1977. At
that point, Little instructed Compton that Respondent's
policy permitted employees to bid into lower classifications.
I do not credit Compton's testimony to the extent that it
attempts to show that Beeman was denied two yarn man's
jobs in September 1976-the jobs were posted on September
10-because of a legitimate business reason which was his
interpretation that Beeman could not bid down to a yarn
man's job, according to company policy. Compton's testimo-
ny was vague, conclusionary, and uncorroborated. First of
all, there is no evidence explaining or confirming Compton's
testimony of what was a higher or lower job classification. A
yarn man was paid by the hour, 3.25 per hour. Beeman was
paid by production: For the week ending September 5 he
made from $2.18 to $3.06 per hour; $2.85 was the plant
minimum. He was issued a warning on September 9-a final
warning-for low production. Compton professed a deep
personal concern about Beeman even to the point of talking
to his mother about getting him to improve his work. It is
inconceivable to me that if Compton had only legitimate
business reasons in mind he would have denied Beeman's
request to transfer to a yarn man's job which would in fact
to remove from his machines a filled bobbin of yarn--each machine had 86
bobbin-and replace it with an empty bobbin.
463
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay him more than he was making on a job which was giving
him difficulty.
Compton's testimony about an abrupt change in policy-
or, more precisely, an erroneous interpretation which was
corrected too late to benefit Beeman-is too similar to other
"changes" in policy in this record which supposedly came
too late to benefit union supporters who had been discharged
or disciplined but which miraculously strengthened Respon-
dent's arguments that alleged discriminatory conduct was
consistent with its treatment of other employees. Compton
conceded that there was nothing in Respondent's written
policy to require Compton's restrictive but erroneous inter-
pretation. It is difficult to see how Compton could have
misapplied Respondent's policy, because when there was a
prohibition in the written document against bidding it was
explicitly stated, such as the prohibition against employees
signing for a "job in the same classification on the same shift
as their present job." Compton testified that his erroneous
interpretation was consistent throughout the year of 1976
but he gave no specific examples. Respondent did not submit
bidding sheets or other documentary evidence that would
prove a consistent implementation of Compton's interpreta-
tion such as was done, for example, in defending the
Hackbarth allegations. Respondent's written policy requires
that bidding information be kept as a "permanent file."
Moreover, Little did not testify about giving any instructions
to Compton to change his interpretation or how this matter
came to his attention. Compton testified vaguely that Little
simply called him to inform him of the correct interpretation
because there had been inconsistencies in applying the policy
"in other locations." Finally, Compton testified that he
never notified employees that there had been a misinterpre-
tation of policy which had now been corrected. Compton
had at least two opportunities to talk with Beeman after the
"corrected" interpretation when Beeman reapplied for work
in the summer of 1977; yet he did not. Why he would not
have mentioned the correction at this time, particularly in
view of his professed concern over Beeman's welfare, even to
the point of talking to his mother, renders Compton's entire
story suspicious and confirms Respondent's unlawful motive
in dealing with Beeman."
In these circumstances, and based on my observation of
his demeanor in testifying on this issue, I believe Compton
tailored his testimony concerning the alleged change in
interpretation of policy which precluded Beeman's transfer
in September 1976. I therefore reject Compton's testimony
concerning his reasons for refusing to transfer Beeman to a
yarn man's job.
I find instead that Beeman was denied a transfer from the
three-slubber job in September 1976 because of his union
activities which were well known at this point. Respondent
demonstrated a determination to keep Beeman in a job
which was beyond his capabilities until such time as it could
discharge him for low production. But for Respondent's
discriminatory denial of Beeman's transfer in September, his
" Contrary to Respondent, employee Hackbarth's testimony does not
support Compton that down bidding was prohibited until early 1977.
Hackbarth testified that he tried to get a first-shift job after his transfer in
October 1976 and on one occasion 2 or 3 months thereafter he bid on a lower
paying job, but he turned down the job on his own accord. There is nothing in
Hackbarth's testimony that would even remotely suggest an interpretation of
a policy against down bidding. Indeed, the failure of Hackbarth's testimony to
low production on the three-slubber job would not have
resulted in his discharge. The failure to transfer Beeman was
thus violative of Section 8(a)(3) and (1) of the Act. This
finding is strengthened by Respondent's discriminatory
treatment of Beeman upon his request for reemployment the
following June or July. I now turn to the evidence on that
issue.
The General Counsel alleges that Respondent discrimina-
torily refused to rehire Beeman in the summer of 1977
because of his union affiliation and that Davenport unlaw-
fully interrogated Beeman as to his union sympathies. The
facts are as follows:
According to Beeman's testimony, in May 1977 he
approached Supervisor Clyde Davenport and asked him
about a job opening in his department-shipping and
receiving-about which he had learned from his mother. By
mid-May, after the discharge of employee Stalling, Daven-
port's department was down from seven employees to five.
Beeman inquired about a job that had been posted as vacant
in Davenport's department. Davenport said that no one else
had bid on the job, but that it had to remain posted for 3
days. Davenport asked if Beeman had relatives working at
the plant, and Beeman told him about his mother and his
brother, Elisha Bennett, both of whom were identified as
union supporters on Respondent's master list. Bennett
worked under Davenport's supervision. During their conver-
sation, Davenport asked, "About this Union, are you for it?"
Beeman said he was. Davenport then asked if Beeman were
rehired would he still be for the Union. Beeman replied that
he would not. A few days later Beeman came back to the
plant and inquired about the job, and Davenport reported
that the job had been filled but that if anything came up he
would notify Beeman.
Davenport confirmed that Beeman inquired about a
posted job vacancy in his department but he denied
interrogating Beeman about his union sympathies, and he
testified that he told Beeman that if there were an opening in
his department he would notify Beeman through his brother.
I reject Davenport's testimony that he did not know about
Beeman's prior employment at the mill and did not ask
about his relatives working at the mill. Beeman's version is
consistent with Respondent's response, through Culberson,
to employee Hughes when she asked to be rehired and it is
consistent with Minor's response to employee Tim Walker
when the latter asked to be rehired.
I find that Davenport's interrogation of Beeman concern-
ing his union sympathies was a violation of Section 8(a)(1) of
the Act.
There is also testimony-which is uncontradicted-that
Beeman twice approached Compton and asked to be rehired.
These approaches took place in June or July 1977 at a time
when documentary evidence shows there were job vacancies
and Respondent was hiring employees. At this time Comp-
ton knew that charges had been filed and a complaint had
issued alleging Beeman's discharge to have been unlawful.
show either an existing or recent prohibition against such a transfer when he
bid on the first-shift job tends to refute Compton's testimony.
In any event, when Jefferson was reinstated to a different section man's job
in October 1977, Respondent found no difficulty in "waiving" applicable
bidding requirements which were much more precise than those allegedly
governing "down-bidding."
464
J. P. STEVENS AND COMPANY, INC.
Compton also knew the ostensible reason for Beeman's
discharge-low production; yet, according to his testimony,
Compton told Beeman he did not know if any jobs were
available but encouraged him to file a formal application for
employment and told him he "would keep him in mind."
Compton did not thereafter get in touch with Beeman. As I
have already found in connection with the refusal to rehire
Margie Moss, Respondent had no policy of automatically
refusing to rehire low producers. Thus, in view of the
evidence concerning Beeman's approaches to Davenport and
Compton, I find that he effectively made application for
employment and that he was denied reemployment or, at
least, was not considered for reemployment, not for legiti-
mate business reasons, but for the same reason he was denied
a transfer to the yarn man's job in September 1976-his
union affiliation.
Respondent's refusal to rehire Beeman or consider him for
rehire constituted an independent violation of Section 8(a)(3)
and (1) of the Act.
12. Jerry Oliver
Jerry Oliver worked for Respondent since December 1975
as a frequency checker under the supervision of Joe
Rhoades, who was the head of the industrial engineering
department. Oliver worked from 8 a.m. to 4 p.m. daily. As a
frequency checker, Oliver performed timestudy and speed
checks on machinery throughout the plant. There were three
frequency checkers at the plant at the end of December 1976
when Oliver was terminated, allegedly as a result of a layoff:
Oliver, Grace Mullins, and Pat Crawford. Mullins had the
most seniority as a frequency checker; Oliver had the second
greatest seniority as a frequency checker, although Crawford
had greater plant seniority. All three frequency checkers
worked in the same mill, had identical hours, and were
supervised by Rhoades. '
Oliver had no warnings or other disciplinary notations in
his personnel file for the entire period of his employment.
Oliver was the only frequency checker who supported the
Union. He signed a union card on August 13, 1976, attended
union meetings every Tuesday, and obtained a signed card
from a fellow employee. Sometime in August, Oliver
informed Rhoades that he had signed a union card and
supported the Union. On this occasion, he asked to speak to
Rhoades in the latter's office and did so. Oliver's name
appears on Respondent's list of union supporters under the
date of September 15, 1976-the only entry on that day.
In the August 1976 conversation with Rhoades when
Oliver identified for the Union, Rhoades told Oliver that he
" Rhoades was promoted to a mill overseer's job in late 1976 or early 1977;
he was replaced by Doug Harrison.
" The above is based on the credible testimony of Oliver whom I found to
be a truthful witness. His account of the first conversation with Rhoades was
essentially corroborated by Rhoades although Rhoades tended to downplay
Oliver's report of union support and his own reaction to that report. Rhoades
denied having subsequent conversations with Oliver, but I found Oliver's
testimony more reliable than that of Rhoades. Rhoades' testimony that he was
not consulted about Oliver's retention despite his longtime supervision of
Oliver and that his antiunion statements to Oliver were based on his "own
personal opinion" was not convincing. Indeed, Rhoades' monitoring of Oliver,
whose work took him throughout the plant, is consistent with Respondent's
monitoring of union section men Townsend and Jefferson whose work
likewise put them in contact with a great number of employees.
" Respondent argues that these two alleged violations are timebarred by
did not want any part of the Union and wished he could
change Oliver's mind. He told Oliver he expected him to do
his job and expected no trouble from him. Oliver replied that
he did not expect any trouble from Rhoades and would
continue to do his job.
A week or two after the above conversation, Rhoades
approached Oliver and asked if he were having any
problems. Rhoades told Oliver that it appeared to him that
Oliver was very quiet. Oliver replied that he was experienc-
ing no problems. During the next few weeks, Rhoades, on
more than one occasion, told Oliver that he wished there was
some way he could change his mind about supporting the
Union. Oliver told Rhoades that there was no way he could
be persuaded to abandon the Union and he did not intend to
change his mind.
Oliver testified that in September 1976 he was approached
by Rhoades while working in the mill and Rhoades informed
Oliver that, if anything came up, Oliver would be the first to
go. Rhoades did not explain to Oliver what he meant by this
remark. However, after Oliver informed Rhoades that he
was for the Union, Oliver noticed that Rhoades would
follow him while he was making his checks through the
plant. Oliver testified that it appeared to him that Rhoades
was spending a greater amount of time checking on Oliver
than he had prior to the time Oliver announced he was for
the Union."
I do not find that Rhoades' remarks to Oliver in the
August conversation were coercive or independently viola-
tive of Section 8(a)(l) of the Act as alleged by the General
Counsel. However, I find that, in the second conversation,
Rhoades' remark that Oliver would be the first to go if
anything happened was, in the context of Rhoades' attempts
to get Oliver to renounce the Union, an unlawful threat of
job loss. This was a violation of Section 8(a)(1) of the Act."
In December 1976 Respondent had a training department
consisting of employees who worked in the laboratory and
assisted various departments in training people to run jobs.
Three employees, Randy Beasley, Claudine Nobles, and
Theresa Vance, worked as trainers." They were supervised
by Doug Harrison, the head of the training department.
In late December 1976, Personnel Director Compton met
with Oliver and told him that the training department was
being eliminated and that this would result in Oliver's being
laid off. Oliver asked why the training department was being
eliminated and asked if its elimination had anything to do
with his union activity. Compton replied it did not and
explained that the elimination of the training department
was due to inadequate funding. Compton told Oliver that, as
a result of his seniority status, he would be displaced as a
Sec 10(b) of the Act since they were the subject of a separate charge (Case 15-
CA-6508) filed on June 23, 1977. more than 6 months after the events alleged
as unlawful. I reject Respondent's contention. These events, as well as Oliver's
discharge, were brought into this litigation by amendment to a broadly
phrased complaint which alleged numerous incidents of interference and
discrimination. The Rhoades-Oliver conversations were of the same character
as others alleged as unlawful in the original complaint. Respondent's
allegation that the June 1977 charge raised a "separate" issue exhalts form
over substance: a specific charge was superfluous in view of the ongoing
litigation and the multi-issue, broad-ranging complaint which had already
been set for hearing. Thus, the allegations were not separate and distinct
violations and they were sufficiently related to the original charges and
complaint to be amended into this case. See N.L.R.B. v. Central Power
Light Co.. 425 F.2d 1318, 1320-21 (Sth Cir. 1970).
" Another training employee. Marcie Rowe, was on leave of absence.
465
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
frequency checker. Three jobs were open at the time, and
Oliver was informed that he could choose to become a
slubber tender in mill I or a draw frame tender in mill 2 or
mill 3 on the second or third shift. Oliver told Compton that
he did not want these jobs and explained that the slubber
tender job was difficult to run and people had been fired
from the job because of production problenbs. Both Beeman
and Phillip Davis had indeed been fired for low production
on slubber tender jobs. Concerning the draw frame tender
job on the second or third shift, Oliver explained that this
job would interfere with his night-school schedule because
he attended night school from 6:15 to 10:30 p.m. on
Mondays and Wednesdays."
Respondent designated Oliver's termination as a layoff.
On the termination notice, dated December 31, 1976,
Respondent stated as follows:
Due to a reduction in a.m. training instruction, Jerry
was bumped from his frequency checker job by an
instructor who had more seniority and who had worked
as a frequency checker prior to advancing to the
instructor job. Other work at equal or higher pay was
offered to Jerry but was refused.
Oliver testified that Respondent originally sought to desig-
nate him as a quit but, after his protest, the designation was
changed to a layoff."'
In January Oliver filed a claim for unemployment
compensation. Respondent contested Oliver's claim-
Compton testified against the claim-but after a hearing
Oliver was awarded unemployment compensation.
Oliver was replaced on the frequency checker's job by
Randy Beasley, one of three training instructors whose jobs
were eliminated. Beasley, who did not sign a union card,
worked as a frequency checker until late 1977 when he
transferred to another job. Prior to his replacement of
Oliver, Beasley, who had been a frequency checker in the
past, was given a warning. The warning, dated September 2,
1976, catalogued serious job deficiencies, including reporting
to work late and "not staying on the job," and threatened
discharge if there were no improvement. Plant Superinten-
dent Gregory was involved in the Beasley warning.
Beasley was supervised by Doug Harrison, the head of the
training department until the latter's promotion to industrial
engineering supervisor on December 2, 1976. In the latter
position, he replaced Rhoades and supervised the frequency
checkers; when Oliver was displaced, Harrison supervised
Beasley as a frequency checker. Harrison testified about the
Beasley warning, tried to minimize it, and testified that he
never discussed Beasley's problems with higher management
before the replacement of Oliver with Beasley.'
As to the other frequency checkers, Grace Mullins went
on extended sick leave from early 1977 to mid-August 1977;
her job was covered by other employees. She worked I
month and then left again-apparently on sick leave again.
Beasley transferred to another job in late 1977. Thus,
" There is some conflict in the testimony of Compton, Supervisor Doug
Harrison, who was also involved in the layoff conversation, and Oliver as to
the exact jobs offered to Oliver. But Harrison confirmed Oliver's testimony
that all of the jobs were on the second or third shifts and that Oliver
mentioned he was attending night school at this time.
"' Oliver's testimony is plausible in light of Respondent's efforts to contest
his unemployment compensation claim, notwithstanding that there is no
Harrison, at the time he testified in February 1978, had only
one frequency checker under his supervision.
Oliver was not recalled after what Respondent alleged was
a layoff, even though numerous people were hired through-
out 1977 for all kinds of jobs at the plant on all shifts and
even though two of the three frequency checkers vacated
their jobs in 1977.
I find that Respondent terminated Oliver because of his
known union activities. His employment record was unblem-
ished, and he was replaced by Beasley, a marginal employee
who was working under a threat of discharge for not
"staying on the job"--an essential quality for a frequency
checker who roamed throughout the plant. Beasley was not
a union supporter. Oliver, on the other hand, was threatened
with the loss of his job by his supervisor who was trying to
convince him to renounce the Union. Oliver was the only
frequency checker who supported the Union and he was not
retained or recalled, even though vacancies occurred in two
out of the three frequency checker's jobs in 1977. Mullins
was out sick for most of the year; other employees had been
temporarily replaced for shorter absences. Oliver was an
obvious candidate for her replacement but for his union
activities. Nor was he recalled for any other vacancies which
would have been compatible with his night-school schedule.
Oliver was a premier employee--educated and intelligent.
Yet Respondent completely abandoned him and indeed
fought his unemployment claim in an unprecedented move
for a laid-off employee. There is evidence that other
employees who were allegedly bumped from their jobs or
laid off were permitted to "choose" or "elect" a layoff. Their
unemployment compensation claims were thus not contest-
ed. Respondent's unusually harsh treatment of Oliver can
only be explained by its union hostility. In these circum-
stances, I find that Respondent unlawfully terminated Oliver
in December 1976 because of his union activities.
Respondent's arguments in support of the Oliver termina-
tion are unpersuasive and rather support my finding of
discrimination. Respondent admitted that it treated Oliver
differently from other laid-off unemploymfnt compensation
claimants.' It alleges that, unlike other employees whose
layoffs were permitted without being contested, Oliver's was
a "permanent rather than a temporary" layoff. Such a
legalistic distinction is wholly unsupported by the record.
Respondent offered no other example of a permanent layoff
where it contested an unemployment compensation claim of
a laid-off employee. Respondent's explanation that it does
not wish these laid-off employees to count "on the Compa-
ny's experience rating with the agency" is not persuasive. Its
experience rating is much more adversely affected by its
more prevalent practice of permitting employees to collect
unemployment so they will be "available for recall when
they are needed." Significantly, Respondent's written layoff
procedure contains no such distinction between permanent
and temporary employees. It contains distinctions between
permanent and temporary "job vacancies" and permanent
documentary evidence in this record to support his testimony that Respon-
dent changed his termination notice or some similar document from "quit" to
"layoff."
"His testimony on this issue was evasive and unreliable.
' Respondent admitted in its brief that in the case of "temporary layoffs" it
gave "scant detail" to unemployment compensation officials "in order to
retain those employees ... and permit them to collect compensation."
466
J. P. STEVENS AND COMPANY, INC.
and temporary "transfers," but these are clearly different
matters. Indeed since Respondent's written policy makes
such a distinction in other specific instances, it is likely that
if there were such things as temporary or permanent layoffs
they would be specifically mentioned in Respondent's
written policy.
Respondent's efforts to explain Oliver's layoff as required
by its layoff, seniority, and bumping policy is completely
without merit. Indeed, its treatment of Oliver was in
complete disregard of its policies as they existed both in
practice and in writing. Other laid-off employees were
permitted to "elect" lay off and were not penalized for
refusing to take other jobs. In the Hackbarth case-dealing
with the October 1976 layoff of doffers-David Keene
"elected" layoff and did not take another job. He subse-
quently was recalled and elevated to a section man's job. Nor
does Respondent's seniority policy require the displacement
of a qualified employee, like Oliver, by an unqualified
employee such as Beasley. A proviso to the seniority policy
states that the employee be "qualified to run the available
job." Beasley's qualifications were suspect, at best, even
though he had once been a frequency checker; incredibly, no
inquiry was apparently even made about Beasley's replace-
ment of Oliver on the basis of his qualifications. That
Respondent was not locked into utilizing seniority in filling
substantive positions is shown by the following accurate
assessment of the evidence by Respondent concerning a
section man's job which union adherent Hackbarth lost to
David Keene, a less senior employee:
According to Hackbarth, Compton explained that
Keene was more qualified and should have been
awarded the job. Compton testified that Keene was
awarded the section man job because Keene had 15
years experience as a doffer, overhauler and section
man while Hackbarth had only two years experience as
a doffer. Hackbarth was not the only one passed over
for this job. Much of Keene's experience had been
obtained at other mills. Therefore he was less senior but
more qualified than four other employees besides Hack-
barth who bid on the job. Hackbarth himself admitted
that Keene had 15 years experience at various mills,
and Gallander, who testified that he had observed both
Keene and Hackbarth, had found Keene to be more
qualified. Resp. br. at 273, fn. 162.]
Moreover, Respondent failed to find another job for and
retain Oliver, contrary to its stated policy. Respondent's
written policy is that a displaced employee like Oliver had
the right to exercise his plant seniority to replace another
employee with less seniority on a job which he can "be
expected to qualify in a minimum amount of time." Yet
Oliver was offered only vacant jobs which interfered with his
night school schedule. Finally, a recall of Oliver was clearly
contemplated by Respondent's policy that "any qualified
laid-off employee (less than 12 months will be recalled before
a new employee is hired." (Emphasis added.) Indeed,
Respondent's policy is that, when a "Notice of Job Vacancy
is posted," the job shall be offered to qualified laid-off
employees, whether or not on the active payroll, in the
declining order of their plant seniority. . ." And "a person
on layoff may refuse to accept a recall to another job
classification without affecting his layoff status." Yet Oliver
was never recalled, despite the overwhelming evidence of job
vacancies and new hires throughout 1977. In clear disregard
of its written policy statements, Oliver was not retained or
recalled for other jobs which he could handle and was
penalized to the point of Respondent fighting Oliver's
unemployment compensation claim because he declined to
accept several objectionable jobs which happened to be
vacant at the time. Respondent's position that Oliver was
"laid off" and "permanently" so, rather than terminated,
was thus a euphemism, unsupported by the record, for his
discharge.
In sum, Respondent discriminatorily severed union sup-
porter Oliver from its employment in violation of Section
8(a)(3) and (1) of the Act.
E. The Dismissals
In the following cases, I have found that the General
Counsel has not established by a preponderance of the
evidence that particular employees were discriminated
against. In these cases, I found that the testimony of many of
the General Counsel's witr,esses was not reliable on crucial
issues and that the reasons given by Respondent were
plausible and not pretextual.
I. Tony Freeman
Tony Freeman was a yarn man in mill 3 on the third shift
under the supervision of Shift Overseer Jerry Gallander.
Freeman was involved in a fight with two other employees at
the plant on June 6, 1977, and was discharged along with
both of the other participants. Freeman did not sign a union
card and did not attend a union meeting or engage in any
other union activity. The General Counsel alleges that
Freeman's discharge was discriminatorily motivated because
Freeman allegedly made prounion remarks in the presence
of supervisors shortly before his discharge and Freeman's
role in the fight was insignificant. I dismiss this aspect of the
complaint as not supported by a preponderance of the
evidence.
Freeman testified about three conversations he had
concerning the Union, two in the presence of Supervisor
Billy McQueen and one in the presence of Gallander. His
testimony was confusing and contradictory, but, in essence,
Freeman testified that he made statements in all three
conversations that he hoped that there would be a union in
the plant or words to that effect, and the supervisors
responded either that there would be no union or said they
did not want to talk about the matter. Alvin Carter, another
employee who was present during two of the conversations,
did not corroborate Freeman. He testified that in one of the
conversations he, and not Freeman, made the prounion
remarks. Freeman was unable to place the conversations in
sequence and was unclear on dates. Freeman only mentioned
two prounion conversations in his affidavit Although he
was corroborated to a certain extent by employee Jimmy
Kiper as to one of the conversations, Kiper was a close
friend of Freeman's and disposed to support him without
qualification. I place no reliance on his testimony. Gallander
and McQueen denied being involved in conversations with
Freeman about the Union. Considering all the circum-
467
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stances, including my assessment of Freeman's demeanor, I
reject his testimony as well as that of Kiper. Carter's
testimony is that, in one conversation, Freeman did suggest
that a union would be good for the mill and Gallander just
laughed. This evidence, however, falls far short of establish-
ing union animus directed toward Freeman who was not a
union supporter and not known to be one by Respondent.
In view of my findings, set forth above, there is no basis
for inferring that Freeman's discharge was unlawful. He was
discharged by Personnel Director Compton after an investi-
gation which resulted in the discharge of Freeman as well as
his friend Kiper and employee Ronnie Nelson, all of whom
participated in a fight at the plant. Compton could not
determine who started the fight because of contradictory
statements from the participants, and he decided to termi-
nate all three. In Nelson's statement to Compton, he said
that Freeman started the fight by pushing Nelson and
thereafter Kiper hit Nelson. Kiper and Freeman disputed
this. I heard the testimony of both Kiper and Freeman and
was not impressed with the testimony of either witness.
Thus, I cannot conclude that their accounts of the fight were
truthful or that Compton was required to accept them. In
any event, Compton's decision comported with past prac-
tice-that the aggressor in a fight is terminated and, if the
aggressor cannot be determined, all participants are dis-
charged. In short, the General Counsel has failed to establish
that Respondent's motive in discharging Freeman was
unlawful.
2. Ruth Gregory
Ruth Gregory was a winder tender on the second shift in
mill 2. She was a known union adherent who signed a union
card and identified herself to her supervisor as a union
supporter in August 1976. In one of the Skidmore grievance
meetings, Gregory asked Skidmore if he favored the Union
and whether the plant would close if the Union came in.
Skidmore replied he could not answer those questions.
On October 7, 1976, toward the end of the shift, Gregory
suffered an emotional breakdown and was helped from the
plant by two of her fellow workers. One of her friends,
employee Esther Pinkard, returned to the plant and told
Shift Overseer Joe Ludlum that Gregory was having trouble
with her nerves and would probably not be in the next day.
Ludlum told her to have Gregory's parents call Robert
Culberson, the general overseer in mill 2, to notify him of
her condition and availability for work.
The following Thursday, Gregory's two sisters came to
the plant to pick up Gregory's check. Culberson asked them
how Gregory was doing. They told him she was very sick
and was hospitalized. Culberson told them he would give
Gregory a month's leave of absence and asked them to have
Gregory get in touch with him.
Thereafter, Culberson marked Gregory's records to indi-
cate she was on leave. Respondent received no further
" Gregory did not testify in this proceeding. Over Respondent's objection
and with considerable reservations, I received into evidence two exhibits
concerning the Gregory termination: one, a letter from a doctor diagnosing
Gregory's mental illness as one existing since at least April 1976 and stating
her inability to testify; and, two, Gregory's affidavit given to a Board agent
after her termination. Neither the doctor nor the person who took the
affidavit was called as a witness, although Respondent's counsel seemed to
contact from Gregory or her family. When the leave time
expired, Culberson assumed that she was not going to return
to work and terminated her on November 9, 1976.8'
The General Counsel alleges that Respondent discrimina-
torily discharged Gregory because of her union activities. I
find that the General Counsel has not proved a violation by
a preponderance of the evidence.
The General Counsel asserts that Gregory's 33-day leave
of absence was shorter than that normally allowed by
Respondent because of Gregory's union activity. He alleges
disparate treatment based on the fact that other employees
were kept on leaves of absence for longer periods. Documen-
tary evidence shows that several employees whose leaves of
absence were longer were being paid workmen's compensa-
tion. Thus Respondent knew of their condition and kept
them on the payroll. Three other instances are cited: Marcie
Rowe, who was granted a leave of absence for "personal
reasons" from May 24, 1976, to January 3, 1977; Willie
McCall, who was hospitalized for over 1 month; and Betty
Dekle who testified she was hospitalized from late October
1976 until January 1977. McCall, unlike Gregory, clearly
notified Respondent of his situation both at the time of his
hospitalization and shortly before he returned to work. The
facts on Dekle and Rowe are too sketchy to show disparate
treatment. Both were hospitalized. Rowe had surgery and
complications. Dekle worked in the personnel office and
came in to work for short periods during her absence. Thus,
it is likely that Respondent knew the facts concerning the
illnesses of both employees. There was no showing that the
leaves of absences granted these employees were not com-
mensurate with the incapacity caused by their illnesses. In
contrast, Respondent had no knowledge as to how long
Gregory would be incapacitated and a leave of 33 days
without any other notification of her condition was not
unreasonable. Culberson testified that had he been asked by
Gregory or her family to grant her a longer leave of absence
he would have done so. The General Counsel has not shown
anything to the contrary and has not satisfied his burden of
proving that the cited examples of longer leaves of absences
were not accompanied by some notification to Respondent
that those leaves were justified by the employees' individual
circumstances. Indeed, Respondent has cited a case where
another employee, Hellums, was granted two leaves of
absence totaling 14 days-a shorter period than Gregory
received-and she was terminated when she did not return
at the end of her leave. In short, the General Counsel has not
shown that Gregory was treated differently from other
employees in similar circumstances or that she was treated
disparately because of her union activities.
3. Mike Hackbarth
The General Counsel alleges that Respondent's transfer of
union advocate Mike Hackbarth was discriminatorily moti-
vated. I find that the General Counsel has not sustained his
acknowledge Gregory's condition and, based on her authorization card, the
affidavit seems to have been signed by Gregory. Obviously, Respondent was
unable to cross-examine Gregory or anyone else as to the contents of the
affidavit. Upon further reflection and having heard other testimony about
Gregory and her condition, I conclude that I can give no weight to the
affidavit.
468
J. P. STEVENS AND COMPANY. INC.
burden of proving that Hackbarth was discriminated against
and I shall dismiss this allegation of the complaint.
Hackbarth worked in mill I on the first shift as a "doffer."
His wife also worked at the plant on the first shift. They rode
to work together. In mid-October 1976, Respondent was
faced with the need to reduce the number of doffers in mill 3
from four to three per shift. The General Counsel does not
dispute that the reduction was prompted by economic
considerations. As a result of the layoffs, Hackbarth was
transferred to mill 3, shift 2.
In effectuating the layoffs and resulting transfers, Respon-
dent relied on its companywide layoff policy which had been
in existence in written form since January 1976. This policy
provides that layoffs and transfer or "bumping" rights in
these circumstances are determined by plantwide seniority.
According to Personnel Director Compton, in accordance
with this policy the least-senior doffers on each shift, who
would otherwise have been slated for layoff, were given the
option of bumping into jobs in other mills that were
occupied by doffers with less plantwide seniority, thereby
displacing those doffers. Alvin Carter was the least-senior
doffer on the first shift in mill 3 and he displaced Hackbarth,
who had less plantwide seniority. Hackbarth had the least
seniority of any doffer on the first shift in mill I so he was
required to choose a doffing job on a different shift and in a
different mill. He displaced a doffer on the second shift in
mill 3 who was laid off.
Respondent's companywide policy provides that if "a
choice of shifts is involved in the filling of vacancies . . .
such employees . . . may exercise their preference in the
declining order of their respective plant seniority." Accord-
ing to Compton, Carter had several. options under this policy
but chose to go to mill 1, shift , thus displacing Hackbarth.
Carter testified rather ambiguously that he did not request
the transfer to mill I but was simply told by his supervisors
that they would find a job for him. Mill Overseer Charles
Siegleman testified that he explained the layoff procedure to
Carter and gave him several options, one of which was to
transfer to Hackbarth's first-shift job."
Hackbarth was told of his transfer by Mill Overseer
Marvin Hicks. He asked for and received a further explana-
tion from Compton. Hackbarth complained to Compton
about having to leave the first shift and advanced his view
that mill seniority applied in these situations. Compton
explained that plant seniority, rather than mill seniority,
applied.
The General Counsel alleges that Respondent's layoff
policy was not followed because neither Carter nor Hack-
barth was given a choice concerning his transfer, and they
were told to which shift they would be transferred. Hack-
barth's testimony on this issue is not clear. It appears he was
told that he was destined for the second shift in mill 3 and
was not given a choice, although I doubt that the parties
focused on this point in their examination of Hackbarth.
Compton and Hicks testified in a conclusionary fashion that
the layoff and transfer procedure was explained to Hack-
barth. In any event, it is clear that there were no more first-
shift doffing jobs available to Hackbarth because he was the
" I reject as hearsay and unreliable testimony concerning a conversation
between Hackbarth and Carter as to how the bumping was effectuated. The
real issue is what Carter was told by his supervisors.
least-senior doffer on that shift, and Carter, who himself was
a union supporter but had more seniority than Hackbarth,
had displaced him. Hackbarth's complaint-that he did not
want to leave the first shift-could thus not be remedied
under Respondent's layoff policy. In these circumstances,
Hackbarth was not presented a real "choice of shifts" within
the meaning of Respondent's policy which would have given
him the right to exercise "his preference." Carter's testimo-
ny as to what he was told before his transfer is, as I have
said, somewhat ambiguous. I accept Siegleman's clearer
testimony that he gave Carter several options and Carter
chose Hackbarth's first-shift job. Carter had been working
on the first shift prior to the transfer, so it is likely he would
have chosen to remain on the first shift. Thus his transfer
would likewise not necessarily have involved "a choice of
shifts" within the meaning of Respondent's policy. In this
connection, I have considered the fact that Carter subse-
quently complained about the mill , first-shift job and, after
Purter's discharge, transferred back to a mill 3 doffing job
on the third shift. However, Carter's complaint, which
occurred in late October, appeared to be based on a dislike of
Hicks, the mill I overseer. His transfer back to mill 3
occurred in early November. This evidence does not estab-
lish that Carter did not choose the mill I first shift job in
mid-October when he was faced with what was in effect a
mandatory transfer from mill 3.
It is true, as the General Counsel suggests, that Hackbarth
was a known union supporter who had twice distributed
union leaflets. It is also true that his transfer worked a
hardship on him because it caused him to work on a
different shift from his wife and deprived him of a greater
opportunity to work overtime on the first shift. Nonetheless,
Respondent has shown that it followed its layoff and
bumping policy in effectuating the mill 3 layoff of doffers.
Hackbarth's lesser plant seniority resulted in his being
bumped off the first shift by Carter, who was also a known
union supporter." Nor was there any other evidence of
discrimination against Hackbarth. Hackbarth's subsequent
unsuccessful efforts to bid back to the first shift were not
blocked by discriminatory conduct even assuming that the
circumstances surrounding these efforts are considered
relevant to the original transfer. He simply did not have the
seniority or qualifications to outbid those who were selected
over him. For example, when Carter vacated Hackbarth's
old job to take the job vacated by Purter, Hackbarth bid on
it, but the job was properly awarded to another doffer, Willie
Barnes, who had more seniority than Hackbarth and who
was himself a union supporter. Hackbarth also voluntarily
turned down a lower paying first-shift job and lost out to a
more experienced and more qualified worker for a section
man's job in late November 1976. Accordingly, the General
Counsel has not shown by a preponderance of the evidence
that Hackbarth was transferred from his shift because of his
union activities.
" Carter's name appears on Respondent's master list of union supporters
under the date of August 12, 1976.
469
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Marilyn Thomas
Marilyn Thomas began working at Respondent's plant on
May 24, 1976. "6 She worked as a spinner on the third shift in
mill 1 under the supervision of Shift Overseer Jerry Baggett
until her discharge on November 4, 1976. Thomas signed a
union card on August 10 at a union meeting and distributed
one union card outside the plant. She testified that she
engaged in no other union activity.
In a conversation in September 1976, not alleged as a
violation of the Act, Thomas and Baggett spoke about
Thomas' expressed desire to talk to him about her union
card. Baggett was told by another employee, Lorraine
Tillman, that Thomas wanted to speak to him about her
union card and he approached Thomas and spoke to her.
Thomas said she was not sure she did the right thing by
signing a card. She said that she had since decided that she
did not want to be involved with the Union and asked how
she could get her card back. Baggett said he did not know
the answer but that he would check with Respondent's
lawyer. He did and the next day told Thomas that she could
call or see the union representative to ask for her card back
but there was nothing that Respondent could do about the
matter. Thomas thanked Baggett. She did not ask to get her
card back but admittedly never mentioned this to Baggett."'
Thomas was discharged in early November 1976, after
being absent continuously since October 20, 1976. Thomas
claimed that she or her daughter called in to report her
absences every day from October 20 to November 9 when
she was told of her discharge. Baggett testified that he did
not hear from Thomas or receive word from her for 7
consecutive days preceding her termination on November 4,
1976. I credit Baggett whose testimony is supported by
documentary evidence as well as by other personnel officials.
Thomas claimed that she herself called Respondent's
plant on October 24, talked to Baggett, personnel assistant
Betty Dekle, and Personnel Director Compton, and was
denied a leave of absence by Compton because she had not
worked at the plant for a long enough period of time. All
three witnesses denied that Thomas called in on this
occasion. Baggett testified that Thomas' daughter called him
to report that her mother was still sick and was going to be
absent. He also testified candidly that either Thomas or her
daughter called in on several occasions, but not after
October 28. The last two nights that Thomas called and
reported that her daughter was sick. Baggett told her he was
short-handed and needed her back, and she promised to
come in on October 29. She did not come to work. Thomas
testified that her daughter called in on every other day she
was absent, but later testified that her daughter did not call
in when notes were sent in on her behalf. Thomas' testimony
was confusing and seemed to contradict her affidavit which
stated that she did not send notes in to plant officials after
October 20, 1976. Thomas' daughter testified, but I found
her testimony to be self-serving, biased, and unreliable. She
testified that she called in to the plant every night and also
" At the time of the hearing Thomas was married; her married name is
Clark.
" The above is based on Baggett's version of the conversations between him
and Thomas which I found more precise in detail than Thomas' version. Her
version generally comports with Baggett's, but she testified that Baggett
initiated the conversation by asking whether she had signed a card. However,
claimed, contrary to her mother's testimony, that she and
others brought notes to the plant on these same nights. It is
inconceivable to me that, on a night when she called in to
report her mother's absence, she would also bring an
explanatory note to the plant. Consistent with Thomas'
statement in her affidavit, Respondent only received one
note from Thomas about her absences. The note, which was
received in evidence, is dated Thursday, October 21, 1976,
and states that Thomas is unable to come to work that night,
that she was still taking medicine, and that she would be able
to work the following Sunday. It also asks that Baggett let
her daughter have her check. I found Thomas' testimony
and that of her daughter less reliable than that of Respon-
dent's witnesses as supported by documentary evidence.
Thomas also testified that she called Baggett on Novem-
ber 9 to tell Baggett that she was ready to return to work.
She testified that Baggett informed her she had already been
terminated, but she did not protest or mention that her
daughter had given notices of her absences or that she had
sent explanatory notes to the plant. I find this implausible if
indeed the calls had been made and the notes sent in. I find
much more plausible Baggett's testimony that in this
conversation he simply told Thomas that he had sent her
termination papers to the personnel office because he had
not heard from her for 7 days.
In these circumstances, I find that Respondent terminated
Thomas for absenteeism in accordance with its written
policy that "[e]mployees who are absent without sending
word for seven consecutive calendar days will be automati-
cally dropped from the payroll and will be considered as
having resigned and voluntarily separated themselves."
Respondent followed this policy in numerous instances both
before and after the Union came on the scene, as shown by
documentary evidence. Moreover, evidence of any causal
connection between Thomas' union activities-limited as
they were-and her discharge is miniscule. Thomas had
expressed serious doubts about her continued support of the
Union and, as far as Respondent knew, she was going to ask
for the return of her authorization card. Thus, the General
Counsel has not established by a preponderance of the
evidence that Respondent discharged Thomas in violation of
the Act.
5. Rodney Stalling
Rodney Stalling began working for Respondent in May
1975 and was fired on May 18, 1977. He was a laborer in the
shipping and receiving department under the supervision of
Clyde Davenport and Bill Sellars. His job consisted of
loading and unloading trucks, cutting grass, spreading
gravel, and engaging in miscellaneous other work in the
shipping and receiving department.
Stalling signed a union card in July 1976 and was among a
group of shipping and receiving employees who identified
for the Union in August. Stalling testified that he passed out
union leaflets to several employees announcing a union
later in her testimony. Thomas admitted her uncertainty as to how the
conversation started. She also testified that her doubts about whether she
should have signed a card were fueled by statements to her from employee
Tillman that threats had been made to Tillman for not signing a card. This
corroborates Baggett's testimony that Tillman had initially referred him to
Thomas.
470
J. P. STEVENS AND COMPANY, INC.
meeting in February 1977. He did not claim he was observed
by any supervisors on this occasion. Stalling's testimony was
not corroborated by the one employee to whom Stalling
claims he distributed union literature. I therefore do not
credit Stalling's testimony on this point.
Stalling testified that he was in effect harassed by
Respondent by being forced to fill some holes in the parking
area with gravel and that Davenport later approached him
and said the Union could not really do anything for him, and
that if he were fired from his job, the Union could not help
Stalling in any way. Stalling's testimony on this issue is
incredible and seemed to me to be deliberately tailored to
enhance his charge of discrimination. Stalling attempted to
characterize his assignment to work alone filling holes as an
unusual circumstance. It was not. From my observation of
Stalling as a witness, it is clear to me that he was
exaggerating a normal work assignment in an attempt to
show harassment for his union activities which were limited
in any event. Stalling was not the union spokesman among
the shipping and receiving employees and there was no
particular reason for Davenport to focus on him as an object
of his antiunion efforts. In these circumstances, I cannot
credit Stalling's testimony concerning the alleged threat by
Davenport.
Stalling's attendance record was poor. He was frequently
absent and he had received several warnings for absenteeism.
His discharge was triggered by an 8-day absence in May
1977. There is a conflict in testimony between Stalling and
Respondent's witnesses, Sellars and Davenport, as to wheth-
er Respondent excused Stalling's absences which he attrib-
uted primarily to a case of venereal disease. I found
Stalling's testimony on this issue confusing and unreliable. I
credit instead the clearer and more detailed testimony of
Sellars and Davenport, supported by documentary evidence,
that Stalling's mother called in on Tuesday, May 10, and
advised Sellars that Stalling had VD; that on May 12,
Stalling appeared at the plant to pick up his pay check and
promised Davenport he would report to work the next
Monday; that he failed to report or send word the following
Monday or Tuesday; and that he next appeared at the plant
on Wednesday, May 18, not dressed for work, to talk to
Davenport, who discharged him at this time.
Stalling asked to be off at 2 p.m. on Friday, May 6, and
never worked again until he was discharged on May 18.
Both Stalling and his mother claimed that she called in for
him on May 9. His mother testified that she called in on that
date, telling Sellars that her son had a virus." This testimony
suggests that Stalling was initially reluctant to tell his
mother he had venereal disease. Stalling's affidavit states,
however, that he told his mother to tell Sellars that he had
"gonorrhea." The more credible testimony of Davenport
and Sellars is to the effect that Stalling's mother called on
May 10 to report that he had VD. He testified that he never
saw a doctor until the following Monday--even though on
Thursday he came in to pick up his check at the plant. At his
unemployment compensation hearing he did not even claim
to be under the care of a doctor. Stalling also testified that on
Thursday he promised Davenport he would report to work
the next Monday if he felt better. However, at his unemploy-
ment compensation hearing, Stalling acknowledged that he
said he would be in on Monday-without reservations; this
comports with the testimony of Davenport. Stalling also
testified that he showed up at the plant on Wednesday, May
18, in work clothes. However, he did not punch in for work.
His excuse for not working on Monday and Tuesday was
unrelated to VD. He claimed that he told Davenport he was
out because his wife had to take his son to the doctor. At his
unemployment compensation hearing, he claimed he was out
because he had stomach trouble. Davenport testified that
Stalling said he had a sore foot. If Stalling had truly been to
a doctor on Monday for his own illness, it is likely that he
would have mentioned this to his superiors and not
manufactured still other reasons for his absences on Monday
and Tuesday.
In short, I found Stalling's testimony concerning the
reasons for his absences wholly unreliable. Respondent
undoubtedly had the same reaction to Stalling's excuses for
his absences, and its discharge of Stalling was perfectly
understandable on those grounds. In addition, Stalling's
overall attendance record was poor; he was absent some 24
days in the first 5 months of 1977. Moreover, Stalling had
not engaged in any significant union activity or been
subjected to harassment because of his union activity,
according to the testimony I have credited. Stalling's only
union activity was signing a card and identifying for the
Union. But these events took place well before his discharge
and were attenuated in time and unconnected with the
circumstances surrounding the discharge. I also consider
probative and supportive of my view the decision of the
appeals referee, who heard Stalling's unemployment com-
pensation claim, that Stalling was discharged for absentee-
ism.
I am not persuaded that Stalling's discharge was a pretext
because of the comparatively worse attendance records of
employees Ledbetter, Wyatt, or Kimbro, as the Charging
Party suggests. It is clear from the evidence that Respondent
tolerated some abominable records of absenteeism without
discipline or discharge. It also appears that Respondent
discharged a number of employees who had attendance
records better than Stalling's. Stalling's case, however, must
be analyzed on its own merits. His absences without
sufficient notification and for rather lame excuses in mid-
May 1977 were of a unique character. In any event,
Respondent's discharge of Stalling was unconnected with his
union activities, notwithstanding the fact that other employ-
ees with bad-or worse-absenteeism records were not
discharged. Respondent properly viewed Stalling's reliance
on bogus excuses and refusal to come to work, in combina-
tion with his poor attendance record generally, as warrant-
ing discharge without regard to the attendance record of
other employees.
In considering the Stalling discharge, I do not rely on
Compton's testimony-which I believe has dubious value-
that he conducted or supervised a comparative survey of
attendance records at the plant before approving Stalling's
discharge. Stalling was effectively discharged by Davenport
based on the objective facts presented to him. I believe
Compton's role was, at most, to provide an after-the-fact
"I believe she was mistaken as to the date she called in.
471
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evaluation, with the advice of counsel, of whether the
discharge could survive an unfair labor practice charge. To
give Compton's testimony any significance in evaluating the
Stalling discharge would be to substitute a self-serving, after-
the-fact analysis for findings based on the surrounding
circumstances as they existed at the time of the discharge
and other evidence bearing on the motivation for the
discharge decision.
6. Jimmy Humphrey
At the time of his discharge on November 2, 1976, for
repeated absences from work without leave, Jimmy Hum-
phrey was a card tender on the second shift in Mill 2 under
the supervision of Shift Overseer Joe Ludlum. Humphrey
was highly regarded as a card tender, but he had repeatedly
been warned about his absences throughout his six separate
periods of employment since October 1972. He had quit four
times and was rehired after each quit. He was fired in early
February 1976 for his absenteeism but was rehired on
February 25, 1976. He was thereafter issued numerous
warnings for being absent without notice and was counseled
about his absences. He was absent again without leave on
October 29, 1976, and this precipitated his final discharge.
Humphrey was a known union supporter who signed a
card, identified himself as a union supporter to Ludlum, and
distributed leaflets at the plant. His name appears on
Respondent's master list of union supporters under the date
of August 11II, 1976.
The General Counsel alleges that Humphrey was dis-
charged, not for his absenteeism record, but for his union
activities. I disagree and, in so finding, I rely on the
testimony of Respondent's witnesses and documentary
evidence which supports their testimony, and I reject the
testimony of Humphrey which was vague, contradictory,
and unreliable. For example, his testimony concerning the
signature on his union card was so confusing and distorted
that it failed to inspire confidence in his veracity on any
significant issue. I also find that his two convictions--one on
a plea of guilty to attempted forgery and the other for assault
to commit murder-detracted substantially from his credi-
bility as a witness." Indeed, he at first denied he pled guilty
to the attempted forgery and sought to downplay the matter.
Although I also found Ludlum and Culberson-Hum-
phrey's supervisors-not to be reliable witnesses on other
issues in this case, I found their testimony on this issue to be
more plausible than Humphrey's, particularly in view of
Humphrey's poor attendance record and his prior discharge
for absenteeism which was supported by documentary
evidence.
The Respondent's evidence is as follows:
After his rehire on February 25, 1976, Humphrey received
written warnings for "laying out" of work without calling in
on March 29, May 4, and July 19, 1976-all prior to the
onset of the Union. Humphrey was again absent without
" Documentary evidence submitted by Respondent shows that Humphrey
was convicted of the latter charge. On November 14, 1977, shortly after he
testified in this case, he was sentenced to serve 20 years in prison. I reserved
ruling on the admissibility of the documentary evidence in order to give the
Charging Party an opportunity to investigate the matter. Neither the
Charging Party nor the General Counsel has questioned the authenticity of
the documentary material or otherwise questioned the admissibility of the
evidence. I therefore rule that the material is admissible.
leave on August 6 and received a written warning the next
Monday, August 9. There is also some testimony concerning
Humphrey's refusal to work in August 1976 after three
additional machines had been added to his job. Apparently
in protest, he left the plant and missed I day of work for
which he received another written warning dated August 10,
1976. There is no evidence that the change in Humphrey's
job was implemented because of Humphrey's union activi-
ties, and I find that the warning was justified. On August 27
Humphrey was AWOL again and was issued a warning on
August 30.
Humphrey was also absent for 3 consecutive days on
September 15, 16, and 17 without calling in. Although
neither Culberson nor Ludlum received any word from
Humphrey on Wednesday, Thursday, or Friday, when
Humphrey was absent, Humphrey did send Ludlum a
doctor's excuse on Saturday through employee Melva Boyd.
Ludlum gave the doctor's excuse to Culberson who passed it
on to Personnel Director Compton.
When Humphrey returned to work the following Mon-
day, September 20, 1976, Ludlum met him at the timeclock,
told him to go back home, that he had his job covered, and
that he would get in touch with him in a couple of days.
Ludlum called Humphrey's house that Wednesday to speak
with Humphrey, but he was not home. Ludlum spoke with
Humphrey's mother instead and told her that Compton and
Culberson wanted to talk with Humphrey the next morning.
Humphrey returned to the plant on Thursday morning and
met with Compton and Culberson. Compton talked to
Humphrey about his attendance record. Compton told
Humphrey that he understood that Humphrey had sent in a
doctor's statement on the previous Saturday and, because of
the doctor's statement, Respondent was going to give him
the benefit of the doubt for being absent on those days.
Compton explained that he expected employees to call in
when they are absent. Humphrey said that he had tried to
call in but had been unable to contact anybody. Compton
replied that it was Humphrey's responsibility to contact his
supervisor when he was out and that, if he were unable to get
in touch with his supervisor, he should leave word with the
personnel office or the switchboard operator.
On Wednesday, October 27, 1976, Humphrey stopped
Ludlum on one of his rounds to tell him that he had to go to
court the next day and would be late coming to work. The
next day, Humphrey also called Culberson and told him the
same thing. Culberson told him that was fine and asked him
to come in after court. That afternoon, Culberson and
Ludlum were standing at the timeclock at the beginning of
the 2 p.m. shift. Humphrey approached them and punched
in on time. Culberson remarked to Humphrey, "I thought
you said you would be late." Humphrey simply responded,
"Well, they postponed it."
On Friday, October 29, 1976, Humphrey was again out
without word and he was discharged on November 2, 1976.90
' Humphrey claimed that he told Culberson the day before that he had to
return to court on Friday and that he called Ludlum on Friday to tell him he
would be late. Culberson and Ludlum specifically denied these claims, and I
creCit their denials. Documentary evidence indicates that Humphrey had
often been AWOL on Fridays. In addition to Humphrey's general unreliabili-
472
J. P. STEVENS AND COMPANY, INC.
I find from the evidence set forth above that Respondent
fired Humphrey because of his poor record of being absent
without prior notification. This was a problem Respondent
had had with Humphrey before the onset of the Union. He
had been discharged previously for his absenteeism and,
even after he was rehired, he had received warnings for his
unexcused absences. The problem continued after the onset
of the Union, but I cannot conclude that the discharge of
Humphrey for his absenteeism was a pretext or was
otherwise connected to his union activities. Although some
employees with poor attendance records were not warned or
discharged, documentary evidence shows that others were,
including Humphrey himself in February 1976.
In reaching my decision on Humphrey, I reject Comp-
ton's specific testimony-which I found not credible on this
issue-that Respondent had a policy of discharging employ-
ees for an excessive number of absences only after receiving a
recommendation from a department head; that Compton
then checked with other department heads to determine,
from their reference to attendance records, that the reported
employee had the worst record in the plant-apparently
depending on whether it involved absences without calling in
or simply general absences; that Compton then checked
whether the employee with the worst record had sufficient
warnings to be discharged and then discharged him. Comp-
ton purported to utilize this procedure for Stalling and
Humphrey. Indeed, in Humphrey's case he claimed to have
engaged in two surveys-one for general absences and
another for absences without leave. He also testified that if,
as a result of the survey prompted by a supervisor, the
employee did not have one of the worst records in the plant,
then "nothing would be done" but those employees with the
worst records would be "consulted," "warned," and possibly
discharged. He gave no specific examples. I have already
rejected Compton's testimony insofar as it described a
similar procedure concerning tardiness discharges. Comp-
ton's testimony on this issue was equally contrived and
unreliable. He was not corroborated by a written statement
of such a policy. Respondent's written policy on absenteeism
and discipline and discharge contains no reference to the
procedure outlined by Compton. Nor was he corroborated
by the testimony of department heads, whose opinions he
allegedly checked when making his survey. Compton's
testimony is further put into question because, if such
surveys had been made in Humphrey's case in November
1976, warnings would have been placed in the files of
employees Ledbetter, Kimbro, and Watts, whose attendance
abstracts are in evidence and show serious attendance
problems. Yet Kimbro and Watts were issued no warnings
for their absences from January 1976 to May 1977 and,
although Ledbetter received four warnings, he was not
otherwise disciplined. Respondent's tolerance of these ab-
sences was apparently contrary to its written policy which
requires that attendance records be reviewed "periodically"
to determine whether warnings are being issued where
appropriate. In these circumstances, I cannot accept Comp-
ton's testimony which I perceive as an after-the-fact re-
ty as a witness, I note that the General Counsel did not seek to corroborate
Humphrey's claim that he was in fact in court on that particular Friday.
" Even if Humphrey's discharge were found to have violated the Act, his
conviction and imprisonment in November 1977 would disqualify him from
reinstatement and backpay beyond the date of the conviction. See East Island
Swiss Products, Inc.. 220 NLRB 175 (1975).
sponse conceived for the purpose of litigating the issues
herein. As I have indicated in analyzing the Stalling
discharge, supra, Compton may have engaged in a survey to
justify the Humphrey discharge after the fact. But the
discharge decision itself was effectively made by Culberson.
I nevertheless conclude that Respondent did have a policy
against excessive absenteeism-which may not have been
consistent but was also not discriminatorily applied in
Humphrey's case. Respondent's written rules express such a
policy. The policy, however, is a generally stated one, devoid
of Compton's elaborations. Thus, although I found Comp-
ton's testimony contrived on this issue, it does not mean that
Humphrey's discharge was not for cause. The record reveals
that Humphrey had a serious attendance problem, with
numerous warnings issued to him. Accordingly, my finding
that Humphrey's discharge was a result of his attendance
problems is sustained without regard to Compton's testimo-
ny.
In short, the General Counsel has not established that
Respondent discharged Humphrey because of his union
activities in violation of the Act.9
7. Eulice Griffin
Eulice Griffin was hired, discharged, and rehired as a
doffer twice from September 1971 to mid-1975. He was
rehired for a third time in October 1975 and worked in mill
2, shift 3, until his final discharge on February 25, 1977. He
was terminated under Respondent's 7-day AWOL policy
after being in jail for 11 days. He had been issued six
warnings for "laying out from work" since August 1976 and
had had similar warnings throughout his two earlier periods
of employment which both ended as a result of his being
terminated for being AWOL 7 days.
Griffin signed a union card on August 5, 1976, and
announced his union support to his supervisor. He engaged
in no other union activity.
Griffin testified to several encounters with supervisors
wherein he claimed they directed antiunion statements to
him. I have discredited his testimony on these matters since
I found him to be an unreliable witness. Griffin admitted to
serving a jail sentence for lying under oath in a prior
proceeding. Another example of his unreliable testimony is
his attempt to show that he was harassed by Supervisor
George Luster after identifying for the Union. He claimed
that Luster made him do things he had never done before,
including doffing frames assigned to someone else and
sweeping floors. Griffin's testimony is riddled with inconsis-
tencies and shows an obvious contrived effort to buttress his
charge of discrimination. He first claimed that changes in his
job took place after he identified for the Union, but he later
admitted that he doffed other people's frames when he was
caught up and swept the floor even before the Union came
on the scene. In these circumstances, I cannot credit
Griffin's testimony concerning any conversations he may
have had with Luster where Luster allegedly attempted to
get Griffin to abandon the Union.
The General Counsel withdrew an additional allegation that Respondent
discriminatorily refused to rehire Humphrey after his discharge at the end of
the presentation of his case because of insufficient supporting evidence.
473
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The evidence concerning the circumstances leading to
Griffin's discharge is as follows:
According to Griffin's testimony, he was sentenced on
February 24, 1977, to 10 days in jail or a $300 fine after
conviction of a traffic offense. He was given I or 2 days to
determine whether to serve the jail sentence or pay the fine.
Griffin called Personnel Director Compton to explain his
problem and express his desire to keep his job. According to
Griffin, he was told that he would still have his job after the
completion of his jail term. Griffin spent 10 days in jail and,
after being released on March 6, 1977, called his supervisor,
Luster, who told him he had been terminated. Griffin
reported to Compton's office the next day and was told that
Compton had forgotten to tell Griffin that Respondent did
not grant jail leave.
Compton denied that he had any such telephone conversa-
tion with Griffin or that he made any representation to
Griffin that he would still have his job when he got out of
jail. Compton and Mill Overseer Robert Culberson testified
that they first learned of Griffin's situation from Griffin's
friend and fellow employee, Pearlie Mae Ellis, who told
Culberson on February 24 that Griffin would be in jail for 10
or 11 days. Ellis did not testify. Mrs. Griffin first testified
that Eulice called her on the day he was sentenced and told
her to go to see Compton with Pearlie Mae Ellis and tell
Compton that "he had ten days in jail and would he have his
job."
In view of Griffin's general unreliability as a witness, I
cannot accept Griffin's testimony that he received an
assurance from Compton on the telephone that he would
have his job after serving his sentence and that based on this
assurance he chose to serve the sentence rather than pay the
fine. Nor does the testimony of Griffin's mother alter this
finding. In response to a question on cross-examination,
Mrs. Griffin subsequently added that Eulice had told her he
already talked to Compton and that Compton said he could
have his job. Despite this latter testimony, which I find was
motivated by a desire to aid her son's cause and came as an
afterthought, I find it difficult to believe that Griffin would
have asked his mother and Ellis to go to see Compton to get
an assurance concerning his job if he had already received
such an assurance from Compton himself. This was out of
character for Griffin who had been warned and criticized
repeatedly during his employment for failing to call in prior
to his absences.
There is also a dispute in the evidence about whether
Compton gave an assurance concerning Griffin's job during
a conversation at the plant between Mrs. Griffin and
Compton. Mrs. Griffin testified that Compton assured her
that her son would have his job when he returned and asked
that Eulice see him when he got out of jail. A friend,
Reverend Andrew Butcher, who accompanied Mrs. Griffin
on this occasion, contradicted Mrs. Griffin's testimony. For
example, he testified that he-and not Eulice-suggested
that they go see Compton about Eulice Griffin's job. As to
the conversation itself, Butcher testified as follows:
[H]e said, "Well, I'm glad you're here. What can I do
for you?" She said, "Well, Mr. Compton, I want to
know-my son is in jail and I want to know whether he
had lost his job or not" and he said, "Well, Mrs.
Griffin, he has not lost his job but I would like for him
to come see me when he finishes his days. How many
days do he have?" She said, "Well, he has 10 days" so
after that, then Mr. Compton said, "Well, I know
Eulice is a good worker." He said, "I don't know what
happens." And Mrs. Griffin said "Well, it was a
misdemeanor. It wasn't nothing but he was driving his
automobile and got some tickets for it and he had to be
in court." And she said also, she said, "Well, Mr.
Compton, the reason why I did come because of the fact
I wanted to know had he lost his job because he is my
only help at home." She said, "I depend on him." And
he said, "Well, Mrs. Griffin, you tell Eulice when you
see him, go ahead on and do his 10 days and come back
and talk with me at the office and we'll talk about it."
Respondent argues that Reverend Butcher's version of the
Compton conversation supports Compton's own testimony
to the effect that, at the time of the conversation, he had not
decided what to do about Griffin and, having just been
notified of Griffin's jail term, he simply advised Mrs. Griffin
that Griffin had not yet lost his job but that he should get in
touch with him after he got out of jail. I agree. My view of
the testimony is that Compton was noncommittal, especially
since Griffin had already chosen to serve his jail time, and
simply agreed to see Eulice Griffin upon his release from jail
and decide at that point what to do about his situation.
Upon Griffin's return, Compton decided to terminate him
for being absent without leave-the same reason for Griffin's
prior discharges. This decision comported with Respon-
dent's policy-supported by documentary evidence-on
other occasions where it had discharged people whose jail
terms caused them to be absent without leave for 7 days.
Indeed, one employee, Beldin Wright, was issued a warning
in March 1976 for being absent for 4 days when he was in
jail. It was not unreasonable, and certainly consistent with
past practice, for Respondent to refuse to consider the period
of time served in jail as an excused absence and, instead, to
treat such an absence as an absence without leave.
Even if the contrary inference be made-that Compton
did make some assurance to Mrs. Griffin, it is difficult to
attach any unlawful motive to Compton's eventual deci-
sion-after Griffin's release from jail and after Compton had
time to analyze the matter-to terminate Griffin. Nothing
had happened in the interim to cause Respondent to view
Griffin's limited union activity in any different light on
March 6 than it did on February 24. Griffin's union activity
took place the previous August. Since that time he had been
warned several times for his absences, and Compton obvi-
ously concluded that serving a jail sentence was not the type
of excuse Respondent could tolerate. I cannot infer that this
decision was made because of Griffin's limited union
activities which took place long before the events leading to
his discharge.
In these circumstances, I find that Respondent discharged
Griffin in February 1977 for the same reason it did on two
previous occasions-his absences for more than 7 days
without leave-and that its discharge of Griffin was not
based on his union activities.
474
J. P. STEVENS AND COMPANY, INC.
8. Mary June
Mary June was a spinner on the third shift. She worked
from 10 p.m. to 6 a.m. in mill 3 under the supervision of
Shift Overseer Jerry Gallander prior to her discharge on
May 26, 1976. She had been employed since October 1975.
June signed a union authorization card in August 1976
and testified that she declared her support for the Union to
then-Shift Overseer Harrelson thereafter. Harrelson denied
that June identified herself as a union supporter to him, and
her name does not appear on Respondent's master list. June
was very unclear as to when she spoke to Harrelson. Her
testimony placed the conversation from "two or three"
weeks to "two or three" months after she signed a card. She
also testified that she talked about the Union in the
breakroom with fellow employee Delores Bowman 2 or 3
weeks after she signed her union card and that Gallander
overheard this conversation, although he said nothing.
Gallander denied he ever overheard a breakroom conversa-
tion about the Union between Bowman and June.
June also testified that before going to work for Respon-
dent she worked at a unionized plant where she was a
member of the Union. When she was interviewed by
Compton, he told her he had called the plant, Fortex
Manufacturing, and was told she was a union supporter.
Compton told her that Respondent did not have a union and
that he wanted no "trouble" out of her. Compton testified
that he simply read June the Respondent's orientation
statement and discussed her prior employment at Fortex but
said nothing about her union activities at Fortex.
June was discharged for leaving work in the middle of the
shift on May 25, 1977, without permission. June testified
that she asked Gallander 2 days before to be off on the day
of May 25. According to June, Gallander replied that he did
not want her to be off. June did not tell Gallander the reason
for her intended absence. June next approached Gallander
about 10:15 of the night she wanted to be off, May 25. She
told Gallander she wanted to leave early in order to attend
her son's kindergarten graduation the next morning. Gallan-
der told her she could not leave because he could not get a
replacement. June also testified that she later told Gallander
that she was leaving at 2 a.m. and that he said, "You can go
ahead, but I'm not going to okay it in the office." June left at
2a.m.
Gallander testified that he only received one request from
June for time off, and this was made shortly after midnight
on the day she left. He also testified that he found out from a
section man that June had punched out at 2 a.m. and had
left her job running.
On the same night, Delores Bowman, another spinner and
a close friend of June's, asked several times for permission to
leave early at 2 a.m. because she was going to be sick.
Gallander viewed the requests with suspicion and denied
them. Bowman left early that night; she left at or about 3
a.m., after June did.
June testified that she had to be at her child's kindergarten
graduation at 7:30 a.m. and had to drive a total of 41 miles-
to pick up her child at a relative's house, to return to her
house and attend the graduation. She never told Gallander
of the driving required to pick up her son.
The next time they reported for work, the night after they
left early, Bowman and June were both told by Gallander to
go home and report to Compton the next morning. After
separate conferences with Compton, June was discharged
and Bowman was not. According to Compton, Bowman was
not disciplined because she had reported that she was sick
and because she had a good work record. June was
discharged because her excuse for leaving early was not
deemed reasonable and she had several written warnings in
her file.
I do not credit June's testimony where it conflicts with
Gallander's with respect to her requests for time off. I found
June's testimony quite exaggerated, and her testimony about
her need to be off early for her child's kindergarten
graduation at 7:30 a.m. to be particularly suspicious and
unreliable. As I view the evidence, June asked for time off at
a time when it was impossible for Gallander to get a
replacement, particularly since he was faced with another
spinner who was complaining about being sick. June was
denied time off, but she left anyway for a reason which the
Respondent viewed with suspicion and which, even after
June's explanation at the hearing, does not impress me as
justifying an employee to simply leave her job. June certainly
did not need to leave the plant at 2 a.m. in order to get
herself and her child to the graduation, even assuming-
which I doubt-that the graduation ceremony was to take
place at 7:30 a.m., as June testified. Nor was there any
reason for June to wait until the last minute to notify
Respondent of the specific reason for wanting time off.
More significantly perhaps, there is no evidence that June
was an active union supporter or that Respondent's union
animus pointed to her in any particular fashion. Her card
signing and alleged declaration of union support and her
conversation with Bowman took place in August 1976. Her
conversation with Compton took place in 1975. These
incidents are very remote in time from her actual discharge
and they show only-even if June's versions are believed-
that Respondent knew of her union support. June also
testified that she persuaded a friend to sign a card but this
also was in August 1976, and there is no evidence that
Respondent knew of this fact. There is thus insufficient
evidence to show a causal connection between June's union
activities in August 1976 and her discharge in May 1977.
Moreover, Respondent's treatment of June was in accor-
dance with its policy, supported by documentary evidence,
of discharging employees who leave the plant without
permission. The three incidents cited by the General Counsel
where employees left early without being disciplined do not
show disparate treatment. June testified that she observed
two employees leave early without permission. Her testimo-
ny that they left without permission was speculative.
Gallander's more knowledgeable testimony shows that both
employees were sick and told him so. The other incident-
testified to credibly by employee Mary Robinson-simply
shows that another employee, unlike June, asked 2 days in
advance to be off for a graduation ceremony and her request
was granted.
In these circumstances, the General Counsel has not
shown by a preponderance of the evidence that June was
discriminatorily discharged.
475
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
9. Dorothy Calhoun
Dorothy Calhoun has worked for Respondent since 1975
as a draw frame tender on the first shift in mill 3. She signed
a union card on August 12, 1976, and I week later informed
her supervisor, Billy McQueen, of her support of the Union
along with a group of other employees. Calhoun attended
union meetings but did not engage in other union activity.
On May 30, 1977, Calhoun walked off her job without
obtaining prior permission from a supervisor. When she
returned the next day she was sent home. She was not
discharged because she had asked a section man for time off
in advance and she was reinstated on June 1, after being
suspended for a total of 7 hours.
The testimony of all participants-Calhoun, McQueen,
Mill Overseer Charles Siegleman, and Robert Williams, the
section man-is basically consistent. Calhoun asked Wil-
liams several days in advance for time off on May 30 in
order to enroll her son in school. He said he would check on
it but he forgot to get McQueen's approval. Calhoun talked
to McQueen about 10 a.m. on May 30 and told him she
wanted to be off that day and said that she had mentioned
the matter to Williams. McQueen said Williams had not
talked to him and that he would let her off if he could find a
replacement. He could not find a replacement, and Siegle-
man talked to Calhoun in an attempt to have her stay until 2
p.m. Calhoun stated that she could not. Siegleman then
explained that he needed someone to run her job and that
she would not be given permission to leave, particularly
because management had not received sufficient notice of
her intended absence. Calhoun's versions of her conversa-
tions with McQueen and Siegleman differ significantly from
theirs only on the following issue: She testified that both
supervisors acknowledged that they were aware that she had
asked Williams in advance for time off.
After talking with Siegleman, Calhoun left-about I I
a.m. She called McQueen that night and asked about her
situation, and he told her to come into work the next day.
She did and spoke to Personnel Director Compton, who
decided to suspend her. Later in the day, Calhoun met with
McQueen, who wrote up a warning for this incident and told
her that she was not to ask her section man for time off in
the future but that these requests were to be made to a
supervisor.
The General Counsel has not established that Calhoun's
7-hour suspension was discriminatorily motivated. Her
union activity was slight and not related in time to the
alleged discrimination against her. There is no other evi-
dence of union animus directed towards Calhoun. Further-
more, Respondent's treatment of Calhoun was not unreason-
able, there is no evidence of disparate treatment, and
Respondent acted within the limits of its implemented policy
that leaving the job without permission is a serious offense.
Indeed, Calhoun was not discharged, because she had
notified a section man in advance, and Compton was
sympathetic to her need to register her child for school.
Calhoun erroneously relied on the conversation with her
section man to suffice as advance notice of her absence, but
she did not check with a supervisor or even with the section
" Farrell did not testify. He left the Respondent's employ at the end of 1976
and was replaced by Daniels.
man to see if permission had actually been granted before the
beginning of the shift on May 30. Thus, Respondent was not
given adequate notice of her intended absence, and its
treatment of Calhoun in response to her leaving her work
without permission was not unreasonable in the circum-
stances. Accordingly, the General Counsel has failed to
establish by a preponderance of the evidence that the
suspension of Calhoun was discriminatorily motivated.
10. Frank Baldwin
Frank Baldwin was a longtime employee who worked as
an electrician on the third shift when he was fired on June 9,
1977, for his second offense of sleeping on the job. He had
been warned for a similar offense on March 15, 1977. He
worked under the supervision of Lavelle Daniels but was
essentially unsupervised during the third shift.
Baldwin signed a union card on August 8, 1976. He
attended union meetings every week and in August 1976 he
handed out leaflets at the back gate of the plant and passed
out two or three union cards in the shop. He also identified
himself as a union supporter to his then-supervisor, Jim
Farrell. In October Farrell approached him and spoke to
him about a union circular which mentioned the Union's
Farah strike. Farrell asked whether he could last on strike
for 2 years-apparently referring to the strike recounted in
the circular. He also told Baldwin to think before doing
something he "would regret." Farrell approached other
employees besides Baldwin about the circular.9
Baldwin had never received a warning in his 11 years at
West Boylston-7 or 8 years under Respondent's operation.
He received warnings in late October for tardiness and in
early November 1976 for being in the lobby for too long a
period of time after getting a service call. Also, in October,
shortly before the tardiness warning, according to Baldwin,
Farrell criticized him for failing to answer an autocall in
time. Under the autocall system, if a supervisor needs an
electrician he calls on a special phone and the electrician
answers it and responds to the problem. Baldwin was not
written up for the October autocall incident.
After his tardiness warning, Baldwin had a conversation
with Plant Superintendent Gregory, who told him he had
heard that Baldwin was late and did not answer his
autocalls. After some further discussion, according to
Baldwin, Gregory said, "Don't trip up now, Frank."
Gregory's testimony is that he talked to Baldwin because he
had heard job-related complaints about him from the third-
shift overseers.
After he received his second warning, Baldwin went to
Gregory's office and complained about the warning. Accord-
ing to Baldwin, Gregory said he had received other
complaints about Baldwin from supervisors about not
answering his autocalls and about sleeping on the job.
Baldwin explained that these charges were not true, but that
another shop employee, Robert Sanders, might answer his
calls on occasion. According to Baldwin, Gregory made the
statement, "some people in the shop . . . will lead you
wrong. Don't let them." He also said, "You know what I'm
talKing about." Baldwin did not respond to this last
476
J. P. STEVENS AND COMPANY, INC.
statement. Gregory also asked if Baldwin were on drugs.
Gregory testified that the conversation dealt solely with
reports he had received about Baldwin's job performance on
the third shift.
On June 9, 1977, Baldwin was observed by a private
security guard, Johnny Parker, sleeping in the shop. Parker,
who impressed me as a frank and honest witness, testified as
follows: During his normal rounds between 2:20 and 2:30
a.m., Parker found Baldwin asleep in the electric shop sitting
on a small wooden crate hidden behind some boxes. Parker
stood beside Baldwin for 2 or 3 minutes and called his name
four times before Baldwin awoke and asked what Parker was
doing in the shop. Parker said he was on his routine check.
At the completion of his rounds, Parker noted in his log that
he had found Baldwin asleep. Parker was required by his
employer to make reports of sleeping employees to their
supervisors. He reported the Baldwin sleeping incident to
Shift Overseer Ronnie Talley and also noted this in his log.
The next day Daniels visited Parker at his home,
confirmed the sleeping incident, and discharged Baldwin for
his second sleeping-on-the-job offense in the past 3 months.
I do not credit Baldwin's denial that he was sleeping when
Parker approached him. His testimony seemed to me to be
tailored in an attempt to minimize his offense. He testified
that Parker only called his name once in a normal tone but,
when shown his affidavit where he stated that Parker yelled
his name, he conceded that Parker did "talk loud."
Moreover, Baldwin testified that Parker approached him
about 4:30-after he had filled out a work order. Indeed, at
one point he suggested that Parker left the shop shortly
before 5 a.m. Yet, documentary evidence shows that the last
completed work order bearing Baldwin's name on this
particular day was timed at 12:35 a.m. It seemed to me that
Baldwin was trying to place the encounter with Parker as
close to the end of the shift as possible to minimize his
dereliction. Parker's testimony, however, supported by his
notes, was more precise and unadulterated by self-serving
motives.
In view of my assessment of Baldwin's unreliable testimo-
ny concerning his second sleeping incident in June 1977, I
cannot accept his denial that he was sleeping on March 15,
1977, when he was issued a warning. Baldwin's testimony on
this incident was not altogether clear, but he seemed
particularly anxious to downplay the significance of sleeping
on the job.9 ' I accept instead the plausible testimony of
Supervisors Daniels and Gallander on this issue:
Jerry Gallander, a third-shift overseer, testified that on
March 15 he needed a shop employee to come to mill 3 to
repair a spinning frame and an air conditioner. There was no
response from either Sanders or Baldwin on their autocalls.
He was unable to find Sanders but found Baldwin asleep in
the electric shop. Gallander returned to his mill and called
Daniels at home. He said that he found Baldwin asleep and
suspected Sanders was also asleep. Daniels testified that,
after receiving Gallander's call, he drove to the plant and
went into the shop where he saw Baldwin asleep. He woke
up Baldwin and left to look for Sanders. Daniels found
Sanders asleep. He sent Sanders home because of his poor
" For example, he testified that he had been confronted by Supervisor Walls
about 5 or 6 years before while he was sleeping and attributed to Walls a
statement that this was acceptable if his job was running. I find this incredible
record and directed Baldwin to repair the equipment in mill
3. He told Baldwin that sleeping was a serious offense and
that he was going to issue him a warning.
I have considered the General Counsel's argument that
Gallander seemed more intent to have Daniels discover
Baldwin asleep on March 15 than in immediately awakening
him and getting him to perform the work that had to be
done and that the real reason Daniels was summoned to the
plant was that Sanders-and only Sanders-was unavail-
able. While I do find it unusual that Gallander did not
immediately awaken Baldwin, it appears that Gallander was
unsure of his authority in the matter. In any event, the fact
remains that Gallander and Daniels did find Baldwin asleep
and Daniels issued him a warning. There is no evidence that
this warning was issued because of Baldwin's union activi-
ties. Daniels did not treat Baldwin in a disparate manner; in
fact, he treated Sanders more harshly by sending him home.
The General Counsel has failed to prove by a preponder-
ance of the evidence that Baldwin was discharged for his
union activities. Although Baldwin was a known union
supporter, there is no specific evidence that he was a
particular focus of Respordent's attention because of his
union activities. The two warnings issued to Baldwin in
October and November 1976 were not shown to be pretexts.
It is clear, from all the evidence, that there were problems
with Baldwin in timely answering his autocalls and, accord-
ing to Baldwin, Gregory spoke to him concerning com-
plaints about his sleeping on the job in November 1976.
Moreover, even assuming that Gregory made remarks to
Baldwin about not letting people lead him "wrong" and that
they were meant to refer to the union campaign, these
remarks do not establish that the warnings and other
complaints about Baldwin were prompted by his union
activities. Nor does this evidence shed light on the motive for
Baldwin's ultimate discharge. Significantly, Baldwin's union
activity and the warnings and conversations with Gregory-
one of which Baldwin initiated-all took place in the
summer and fall of 1976, well before Baldwin's discharge in
June 1977, and far too remote in time to support a finding
that Respondent harbored a desire to fire him for his union
activities for such a long period of time.
Moreover, I find that Baldwin did indeed sleep on the
job-and was caught sleeping on the job-two times in 1977
and that this was the reason for his discharge. There was
much testimony about both sleeping incidents, but I found
the testimony of Daniels, Gallander, and Parker on this issue
to be reliable and plausible, whereas I found Baldwin's not
to be reliable. Other witnesses testified about Baldwin's
having slept on the job on several other occasions. Moreover,
Respondent has shown through documentary evidence that
the discharge of Baldwin comported with its well-established
practice of terminating employees for a second offense of
sleeping on the job. The General Counsel has not shown that
Baldwin engaged in any significant union activities in the
year 1977 nor did he establish any causal connection
between Baldwin's earlier activities and the discharge in
June. Although Baldwin worked for Respondent for 11
years without a disciplinary warning, he had never worked
in view of Respondent's policy discussed elsewhere herein that sleeping on the
job was a serious and punishable offense, and Walls' denial that he made such
a statement.
477
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the third shift (10 p.m.-6 a.m.) prior to March 1976, which
may account for his sleeping-on-the-job problems. While the
discharge of Baldwin, an experienced and long-term employ-
ee, may have been harsh, it was for cause and was not based
on his union activities or support. Accordingly, I find that
the General Counsel has not established by a preponderance
of the evidence that Baldwin was unlawfully discharged.
11. Bruce Duke
The General Counsel alleges that employee Bruce Duke, a
utility air-conditioning mechanic, was discriminated against
when, on Friday, August 5, 1977, 3 days after he testified in
this proceeding to identify his union card and the cards of
three other employees, Plant Superintendent Paul Gregory
criticized him for using a telephone in a supervisor's office
and ordered him to utilize work orders in his work. I do not
find that Gregory's remarks were unlawfully motivated or
had an unlawful impact on employee rights.
Gregory was on one of his rounds on a day when both
shop supervisors were absent, when he encountered Duke
speaking to his wife on the telephone in the office of
Supervisor Lavelle Daniels. Gregory testified he became
irritated because he observed Duke having a "fun type
conversation." When Duke hung up the phone, Gregory
angrily told Duke to use the pay phone for outside calls. He
also questioned Duke about his work and asked if he had
any work orders. When Duke replied he did not usually
utilize work orders in his work, Gregory said that he wanted
a "damn" work order for everything Duke performed.
Thereafter, Gregory and Duke calmly spoke about another
work-related problem. Gregory issued no written warning
concerning Duke's use of the telephone.
The testimony about the use of work orders in the shop at
this point, in August 1977, is confusing. It appears that work
orders were utilized for corrective maintenance but not for
routine maintenance. Duke had not used work orders before
the Gregory conversation, at least not for routine mainte-
nance. The entire work-order system was being phased in at
this time. After Gregory's reminder, the work-order system
was tightened and phased in more quickly than it would
otherwise have been. There is no evidence that Duke
suffered from a heavier use of work orders than other shop
employees.
Duke was a prounion employee who had asked Daniels
for time off to testify in this hearing on August 2. Many
other employees also testified that week. Nothing in the
encounter with Gregory would suggest that Duke was being
punished for his union activity or his testimony 3 days
before. The evidence shows that at the time Gregory did not
even know that Duke had testified. The fact that Gregory
was upset by what he regarded as Duke's inattentiveness to
his work and his use of a supervisor's office and telephone
does not constitute a violation of the Act.9'
Accordingly, I find that the General Counsel has not
shown that Respondent unlawfully disciplined or assigned
more arduous work to Duke in August 1977.
" The above treatment of Duke by Gregory also conclusively refutes
Respondent's contention that Duke was a supervisor or arm of management,
an issue which I discuss in more detail infra.
F. The Bargaining Obligation
As indicated earlier in this Decision, the Union requested
recognition on September 13, 1976, based on an asserted
majority of designations by employees of it as bargaining
representative of Respondent's employees. Respondent de-
clined to accord the Union recognition. Under settled
principles, such a refusal to bargain is violative of Section
8(a)(5) and (1) of the Act. A bargaining order is provided as
a remedy if the union has established that it had majority
support in an appropriate unit and the employer has
responded to a union demand for recognition by engaging in
substantial unfair labor practices which preclude the holding
of a free election or have the "tendency to undermine [the
union's] majority strength and impede the [Board's] election
processes." N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S.
575, 614. See Trading Port, Inc., 219 NLRB 298, 301 (1975);
Chandler Motors, Inc., 236 NLRB 1565 (1978).
Applying Gissel and its progeny to the facts herein, I find
that the Union enjoyed majority support in an appropriate
unit on the date of its demand for recognition-a date agreed
upon by the parties as the operative date for determining
whether the Union had a majority-and that Respondent's
unfair labor practices were serious enough to warrant a
bargaining order in the absence of an election. Accordingly,
I find that Respondent violated Section 8(a)(5) and (1) of the
Act by refusing to bargain with the Union and responding
with serious violations of the Act. I first consider the
question of the appropriate unit, both in its description and
in its numerical composition. Next, I consider the union
designations submitted as evidence of the Union's majority.
Finally, I consider Respondent's unfair labor practices and
the Gissel criteria for a bargaining order.
1. The unit issues
a. Alleged supervisors
(1) The section men
The most significant unit issue involves the status of 40
section men in Respondent's employ as of September 13,
1976. The General Counsel says that they are employees;
Respondent says they are supervisors within the meaning of
Section 2(11) of the Act. I agree with the General Counsel.
Respondent's section men are assigned to particular
sections-winding, carding, spinning, twisting, and picking.
Their primary responsibility is to perform preventive main-
tenance and repair machinery in their assigned sections,
hence the name fixer, which is used interchangeably with
section man. Although there are some differences in the
duties of the section men based on their particular skills and
the section in which they work, it was agreed by the parties
that the section men would be considered collectively as
either all in or all out of the unit.
In this respect, I find it significant that Respondent agreed
to the unit inclusion of Willie Townsend as an employee.
Even though Respondent tried to label him as a technician
or an overhauler, the evidence establishes that his job is the
478
J. P. STEVENS AND COMPANY, INC.
same as that of the other section men and that Respondent
treated him as such. He was issued warnings along with
other section men, and his work was redistributed along
with that of other section men. He viewed himself as a
section man, and his first warning in August 1976 identified
him as a section man. Overseer George Luster referred to
Townsend as a section man, and another section man, Paul
Wynn, testified that he was called a technician or a fixer but
performed the same kind of jobs Townsend did. This
evidence strongly suggests that the other section men-like
Townsend-were employees.
Some important features of the section man's job are
similar to those of unit employees and different from those of
Respondent's basic supervisory category, the overseers.
Thus, section men punch a timeclock; overseers do not.
Section men are paid hourly; overseers receive a salary.
Section men receive time and a half for time over 40 hours;
overseers do not. Section men are disciplined in the same
fashion as unit employees; overseers are not subject to being
written up. Section men jobs are open for bid; overseer
positions have never been posted for bid. The hourly rate of
pay for a section man was the same as that of a card grinder,
an employee classification. Overseers, on the average, are
paid about $2,000 per year more than section men, some of
whose income is based on overtime earnings.
Section men do attend periodic meetings with overseers
concerning safety and production problems. They do not,
however, attend regularly held weekly meetings of overseers
to discuss other managerial problems. Significantly, they
were not included in meetings conducted by Respondent's
counsel to instruct supervisors with respect to what they
could or could not say to employees about the Union during
the initial stages of the union campaign at West Boylston.
Thus, Respondent clearly did not consider the section men
as supervisors or arms of management in this most critical
division of sides.
Turning to the applicable principles, Section 2(11) of the
Act provides:
The term "supervisor" means any individual having
authority, in the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances,
or effectively to recommend such action, if in connec-
tion with the foregoing the exercise of such authority is
not of a merely routine or clerical nature, but requires
the use of independent judgment.
Although Section 2(11) must be read in the disjunctive, it
"expressly insists that a supervisor (I) have authority (2) to
use independent judgment (3) in performing such supervisor
functions (4) in the interest of management." N.L.R.B. v.
American Manufacturing Co. of Texas, 405 F.2d 473, 474
(5th Cir. 1968). See also N.L.R.B. v. Security Guard Service,
Inc., 384 F.2d 143, 146-147 (5th Cir. 1967). Moreover, it is
settled that the performance of some supervisory tasks in a
merely routine, clerical, perfunctory, or sporadic manner
does not elevate a rank-and-file employee to supervisory
level, nor do isolated or infrequent incidents of supervision
make an employee a supervisor. N.L.R.B. v. Security Guard
Service, Inc., supra at 149. "The concept of supervision has
some elasticity, but it must have substance and not be
evanescent.... Some kinship to management, some em-
phatic relationship between employer and employee, must
exist before the latter becomes a supervisor for the former."
N. L. R. B. v. Security Guard Service, Inc., supra.
Applying these principles, I find that Respondent's
section men do not possess the necessary indicia of supervi-
sory authority, and that they are thus employees. Respon-
dent concedes that section men do not have the authority to
hire, fire, promote, grant pay increases or time off. Supervi-
sors Gallander, Harrelson, and Ludlum conceded as much
in their testimony. With respect to the authority to grant
time off, the evidence concerning the suspension of Dorothy
Calhoun is illustrative of the limited role of the section man.
She erroneously relied on her prior notification to a section
man of an intended absence. When he failed to transmit the
request to a supervisor, Respondent took the position that it
had not been adequately notified and Calhoun was issued a
suspension and a warning telling her that the next time she
wanted time off she should not ask her section man but that
she should ask a supervisor. Further, there is no evidence
that section men, on a regular basis, "effectively" recom-
mended the hiring, firing, promotion, or reprimand of
employees. Nor does Respondent contend that section men
are authorized to suspend, layoff, or recall employees or
effectively recommend such action on a regular basis.
Respondent does contend that the section men possess the
authority to assign work, responsibly direct employees,
transfer and discipline employees, effectively recommend
wage increases and discipline, and to adjust grievances. I
find no such real authority which calls for the exercise of
independent judgment in these areas. Rather, I find that in
some matters section men are the conduits through which
the overseers transmit their orders. In other matters they
handle routine problems but, if there is some difficulty, they
check with the overseer for instructions. Moreover, indepen-
dence of judgment is severely limited-and the allegation of
supervisory status rendered ludicrous-when a section man,
such as Townsend, is timed on his breaks, criticized for 2-
minute conversations, and called on the carpet for using the
word "damn," and when a section man, such as Jefferson, is
issued written warnings for failing to tell an employee to
change the wax on her machine, for talking to employees,
and for complaining about a specific job assignment.
The record demonstrates that section men do not normal-
ly grant or recommend wage increases. Although one section
man, Ike Bennett, testified generally that he recommended
pay increases which were approved, Bennett did not cite any
specific instances. Other section men testified they did not
recommend pay increases. No overseers testified that they
regularly accepted such recommendations from section men
or acted upon them. Isolated instances in which recommen-
dations for wage increases are accepted by overseers do not
establish supervisory authority. I therefore conclude that
section men cannot grant or effectively recommend pay
increases.
Section men do not adjust employee grievances except
insofar as they answer an employee's request to fix a
machine. There is evidence that some minor complaints,
such as the temperature in the plant are first made to the
section man, but the evidence shows that such matters are
referred to the overseers for investigation and adjustment.
479
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section men do not have the authority to reprimand or
discipline employees or to effectively recommend such
action utilizing their independent judgment. Although an
overseer may discipline an employee for disobeying a section
man's request, the evidence is that the overseer makes an
independent investigation before imposing discipline. The
section man does not write up employees. Indeed, he himself
may be written up for the most insignificant dereliction, as
this record shows. The evidence also shows that the section
man may point out a mistake to an employee, usually on the
basis of his superior knowledge of the operation of the
machinery involved, but has no authority to reprimand the
employee if improvement is not made. A section man may
caution employees found smoking in a restricted area or
overstaying a break, but here again his caution does not
carry the authority to issue a warning for such an "offense."
His role in this respect is routine.
The authority of a section man to transfer an employee is
limited. Although a section man may direct an employee to
switch from one machine to the same type of machine in the
same section, he does this only if the first machine is
inoperative or has run out of material. The latter is a routine
matter and the former is simply common sense, and neither
involves a significant exercise of independent judgment.
There was some testimony on the transfer of employees
when someone is absent. Such a transfer may be effectuated
by the section man, but only after he has conferred with the
overseer. If an employee refuses the request, the matter is
referred to the overseer. The limited authority of a section
man in this situation is demonstrated by fixer Doug
Livingston's several requests to Richard Purter to switch
jobs. Livingston transmitted Harrelson's orders, and Harrel-
son was consulted. Only after Harrelson's orders were
directly refused by Purter, was Purter sent home. In short,
the role, if any, of the section men in transferring employees
is not clothed in the exercise of independent judgment.
Finally, the section men do not have the authority to
assign work to employees or responsibly to direct them in
more than a routine fashion. Several witnesses answered in
the affirmative when asked if the section man's duties
involved the responsibility to keep a section "running
smoothly." This testimony does not establish that they had
the authority to responsibly direct employees by using
independent judgment. Production in every department of
Respondent's facility is dependent, to a certain extent, on the
condition of the machines in each department. The primary
responsibility of the section men is "preventive mainte-
nance," which, according to Supervisor Harrelson, involves
"oiling, greasing, machinery breakdown, production changes
such as changing yarn count." Thus, to the extent that the
"smooth operation" of a section is dependent on the proper
functioning of the machinery, section men play an important
role. But their responsibility does not extend to supervision
of the employees running those machines. Indeed, while they
may, incidentally to their main function, check over the
performance of a particular employee, such as checking
whether the operator has changed wax on a machine, Shift
Overseer Ludlum's testimony concerning section man
Wayne Bates' responsibility in this matter makes quite clear
" Supervisor Harrelson, who, at the time he testified, was a section man at
another Stevens plant after he was fired as an overseer, testified that the
section man's job is the same at all the Stevens plants.
that he, as shift overseer, checks behind the section man. To
the same effect is the testimony of Shift Overseer George
Luster. The bottom line in this respect is that a section man
cannot issue reprimands or warnings for inadequate perfor-
mance. He must refer the matter to the overseer who makes
an independent investigation. Nor has Respondent shown
that section men effectively recommended the issuance of
reprimands or were even asked for recommendations about
discipline of employees. For example, Ludlum admitted he
did not confer with section man Bates before deciding to
send Marva Watkins home for refusing to change the wax on
her machine. And there is no evidence that Respondent
sought the recommendation of section man Doug Livingston
when determining Richard Purter's fate.
Section men are not authorized to assign work to other
employees. Any changes in yarn, temporary transfers to
another machine, or instructions given to "indirect labor"
either concern routine matters requiring no independent
judgment or stem from instructions received by section men
from overseers. Respondent's witness, Ike Bennett, testified
that changes in stock resulted from instructions from
overseers. When asked, "Eow do you know what to run?"
his answer was: "We run two kinds of stock. As long as the
overseers don't tell us to change, we don't have to change
but instead we stay on the same stuff we are running."
Section men follow standing orders from the overseers to
have employees clean up their areas and resume work after
breaks. The training of new employees by section men
merely reflects the relationship of more experienced employ-
ees to less experienced employees. None of these functions
requires the exercise of independent judgment by the section
men.
In sum, the section men possess none of the statutory
indicia of supervisory authority. They are not considered
supervisors, are hourly paid, and are paid significantly less
than real supervisors. They are permitted to bid on other
employee jobs, and the section men jobs, unlike the jobs of
supervisors, are open for bidding. Accordingly, I find that
Respondent's section men, whose primary duty involves
maintenance and repair work on Respondent's production
machinery, are employees within the meaning of the Act.
The section men employed at the West Boylston plant
performed almost the identical duties as section men found
to be employees at Respondent's operation in Roanoke
Rapids. J. P. Stevens & Co., Inc., 123 NLRB 758 (1969). See
also J. P. Stevens Company, Exposition Plant, 147 NLRB
1133, 1134 (1964); J. P. Stevens & In, 167 NLRB 266, 280
(1967), enfd. in relevant part 406 F.2 l 1017(4th Cir. 1968);
Inman Mills, 82 NLRB 735, 737-738 (1949)."
(2) Other alleged supervisors
The General Counsel urges the inclusion in the unit of
Bruce Duke, the utility and air-conditioning mechanic, and
Raymond Kelly, the head packer. Respondent disagrees,
urging that both are supervisors within the meaning of
Section 2(1 1) of the Act. I find that Duke is an employee but
that Kelly is a supervisor.
480
J. P. STEVENS AND COMPANY, INC.
Bruce Duke, the incumbent utility and air-conditioning
mechanic, had none of the supervisory indicia and was not
considered a supervisor. He worked under Supervisors
Daniels and Walls.
Duke's primary responsibility is the maintenance and
repair of air-conditioning machinery. He punches a time-
clock and attended no supervisory meetings on union or
production matters. He does check the work of two helpers
but does not responsibly direct their work utilizing indepen-
dent judgment. He merely transmits the orders of Daniels
and checks back with Daniels if there is a problem. In this
respect, he worked much in the same manner as electrician
Ragsdale who had a helper, Calvin Rumph; Respondent
agrees that Ragsdale is an employee and belongs in the unit.
Neither Ragsdale nor Duke had the authority to discipline
employees and they were not even consulted about the
discharge of Rumph, although both were at least witnesses
to the event leading to his discharge. Moreover, Duke was
required to operate under a work-order system which
severely limited his independence of judgment even in his
own work; these work orders were prepared by Daniels,
Walls, or other supervisors. Although Daniels testified he
would consult with Duke on promotions of his helpers, there
was no evidence that such consultation had occurred in the
past or that Duke's recommendation would be accepted
without an independent investigation. Finally, if Duke were
a supervisor, Gregory would hardly have rebuked him in the
condescending manner he did or have criticized him for
using a supervisor's telephone. In their testimony, various
supervisors referred to Duke as an employee. Although some
of this evidence took place after the September 13, 1976,
demand date, there is no evidence that Duke was demoted
after September 1976.
Duke is an employee and included in the unit.
The only significant testimony concerning the head packer
was by the incumbent, Raymond Kelly. He testified that he
was the head inspector and packer under the supervision of
Clyde Davenport, the head of the shipping and receiving
department. His responsibilities include the inspection and
packing of yarn and the training of some 16 other packers
and inspectors. Although he does not have the authority to
hire and fire or to discipline or promote employees, he is
responsible for checking the timecards of the other packers.
If there is some problem with the timecard he refers the
matter to Davenport. He has no authority to assign work
since the packing employees know what to do and his role in
this respect is routine. Kelly punches a timeclock and is paid
by the hour. At the time of the hearing he was paid $4.61 per
hour.
Kelly testified that if people in his department want to be
off, they call him and "I just tell them to go ahead. I fill in in
their place." Davenport has instructed him, "If they have to
be off, just let them be off." Kelly also tells employees to
work overtime "without asking" Davenport. He testified
that he has standing authority to ask employees to work
overtime and that Davenport has "never said anything about
it. If we have work for the people to do." Kelly does not do
actual packing himself unless someone is absent. He testified
that he would point out the mistakes of a packer because "if
it comes back, it will be my fault" because "I'm responsi-
ble."
Although I had the feeling that Kelly was somewhat
overstating his responsibilities, his uncontradicted testimony
establishes that he had the authority to grant overtime and
time off to employees without checking with his superior.
Moreover, his own testimony concerning his responsibility
for the work of others, especially their mistakes, makes clear
that he considers himself to be an arm of management. The
fact that, as he testified, the plant superintendent would be
"looking at me" if something "comes back" demonstrates
that he responsibly directs employees. Unlike the section
men, his principal function is not responsibility for the repair
and functioning of machinery, but rather the functioning of
people. He himself does not ordinarily do the packing. And,
unlike the section men, he grants time off and authorizes
overtime without checking with his superior. Accordingly, I
find, notwithstanding that the job is hourly paid, that the
head packer, Raymond Kelly, is a supervisor within the
meaning of Section 2(11) of the Act and, therefore, for the
purposes of this case, the job category is not included in the
bargaining unit.
b. Termination date issues
(1) Beverly Harvard
The General Counsel alleges that Beverly Harvard, who
signed an authorization card on August 25, 1976, belongs in
the unit. Respondent counters that she should be excluded
because she was not employed on September 13, 1976, the
date the Union demanded recognition and the date the
parties stipulated as appropriate for determining the Union's
majority. I agree with Respondent.
Harvard testified that she left Respondent's employ
approximately 2 weeks after her child started a new school
term which presumably would have been in mid- or late
September, after the September 13 demand date. However,
Respondent's business records show that Harvard's last day
of work was August 27, 1976, and that she was terminated
on September 9, 1976, for being absent without leave for 7
days. Respondent's records are more reliable than Harvard's
vague recollection of dates. Accordingly, I find that Harvard
was not employed on September 13, the operative date, and
exclude her from the bargaining unit.
(2) Nobles, McGough, and Boggan
The parties stipulated at the hearing that Winston Nobles,
Marvin Boggan, and George McGough, a section man, did
not work on the September 13, 1976, demand date and that
these employees were terminated on that date. Respondent
would include the employees in the bargaining unit, while
the General Counsel would exclude them. I agree with the
General Counsel and exclude the employees.
Ordinarily, to be an eligible member of a bargaining unit,
an employee must be actually employed and working in the
unit on the crucial date. The Board's test turns on the
481
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"objective fact of actual work on the eligibility dates." Roy
N. Lotspeich Publishing Co., 204 NLRB 517, 518 (1973)."9
Furthermore, an employee ceases to be an eligible member of
a bargaining unit when his employer communicates to him
the fact that he is terminated.9 '
Although the parties stipulated that the three employees
were terminated on September 13, they also stipulated that
the employees did not work on that date. The record is silent
as to when these employees were actually notified of their
terminations. However, in the absence of evidence to the
contrary, which would have been in the possession of
Respondent and readily available to it, I must draw the
inference that these employees did not work on the demand
date because they had been informed of their terminations
on that day or beforehand. It is likely that Nobles,
McGough, and Boggan did not work on the demand date
because they were notified of their terminations before
reporting to work. Thus, they no longer had a community of
interest with the rest of the unit employees as of September
13, the crucial date here. See Fairview Hospital, 174 NLRB
924, 928, 930 (1969), enfd. 443 F.2d 1217 (7th Cir. 1971)
(employee not included in unit because he was lawfully
terminated on election day by virtue of his timecard being
pulled before he reported for work); cf. Choc-ola Bottlers,
Inc. v. N.L.R.B., 478 F.2d 461, 464 (7th Cir. 1973), denying
enforcement of 196 NLRB 1178 (1972) and 192 NLRB 1247
(1971) (employee excluded even though he worked on
election day because he was validly discharged before voting
began).
c. Leave of absence issues
The General Counsel contends that Jo Spires, Charles
Hill, Cecil Smallwood, and Marcie Rowe should be excluded
from the unit because they were on leaves of absence on the
demand date and had no reasonable expectation of future
employment with Respondent. Respondent argues that these
individuals should be included in the unit because, on the
demand date, they had a reasonable expectation of returning
to work and they were carried on Respondent's payroll as
active employees. I agree with Respondent on all four
employees.
Jo Spires worked regularly until she suffered a back injury
at work on March 1, 1976. Respondent put Spires on leave
of absence on April 22 so that she could undergo surgery for
her back injury. At that time Spires began drawing work-
men's compensation. After a series of monthlong leaves,
Respondent granted another leave to Spires from June 30,
1976, to January 1, 1977. On February 2, 1977, Spires'
doctor released her for work. She worked 18 hours during
the week ending February 13, 1977, but had a recurrence of
her injury. She continued to draw disability until April 15,
1977. Spires returned to work the week ending May 29,
1977, and has worked continuously since that time.
Charles Hill suffered an on-the-job injury on October 27,
1975, but continued working through March 6, 1976. Hill
ceased work and began receiving workmen's compensation
disability payments on March 7. Disability payments contin-
" Obvious exceptions, of course, are where an employee is on leave of
absence but has a reasonable expectancy of returning to work or where an
employee has been discriminatorily discharged.
ued through July 1, 1977. At the time of the hearing, Hill
had not returned to work.
Cecil Smallwood was injured at work on November 28,
1975, and began receiving workmen's compensation disabili-
ty payments as of the next day. Smallwood did not work in
1976. He was terminated on November 24, 1976, when he
failed to return to work after being released by his doctor.
Marcie Rowe was on a personal leave of absence from
May 24, 1976, to January 3, 1977. There is testimony that
she had surgery and complications. At the end of her leave,
Rowe told King Compton, the personnel manager, that she
could not return to work because she had remarried and was
moving from the Montgomery area.
An employee on sick or other leave is ordinarily presumed
to continue in that status and to have a reasonable
expectation of returning to work unless he or she is shown to
have resigned or been terminated before the crucial date. See
Miami Rivet Co., 147 NLRB 470, 483 (1964); Hercules, Inc.,
supra.
I find that Hill, Spires. Smallwood, and Rowe had a
reasonable expectation of future employment on the Septem-
ber 13, 1976, demand date. None of the employees was
terminated or discharged as of the demand date. Respondent
continued to carry them on its active payroll and to pay
them for holidays and vacation, thus indicating, in an
objective manner, its expectation of their continued employ-
ment. Thus, there is no basis for inferring that as of the
demand date these employees did not have a reasonable
expectation of returning to work.
The General Counsel, relying on Yawman & Erbe of
California Corp., 232 NLRB 935 (1977), argues that some of
the absences are of sufficient length to warrant an inference
that the employees had no reasonable expectation of contin-
ued employment. As of the demand date, Hill had been
absent over 6 months, Smallwood over 10 months, and
Spires 5 months. I do not find that absences of such length,
in the circumstances of this case, establish that the employ-
ees had no expectation of returning to work, particularly
where the employees were collecting workmen's compensa-
tion for on-the-job injuries. In Yawman & Erbe, supra, the
Board excluded an employee from the unit because she had
been granted two consecutive 120-day leaves of absence for
undisclosed reasons, and a few weeks before the election the
leave was extended indefinitely. That case is distinguishable
from the instant case. In Yawman & Erbe, the Board was
concerned with an obvious ploy to establish an employee's
eligibility prior to an election. There was no such ploy in this
case. Here, the employees were placed on leaves of absence
for work-related injuries well in advance of the union
campaign and their leaves were not of indefinite duration.
Respondent's practice is that a doctor will release employees
from their leave status if it is determined that they are fit for
work. Accordingly, Hill, Smallwood, and Spires had a
" Hercules Inc.. 225 NLRB 241, 242 (1976); WCAR. Inc., 203 NLRB
1235. 1243 (1973); N.L.R.B. v. Pacific Gamble Robinson Ca, 438 F.2d 112,
113(9thCir. 1971), enfg. 174 NLRB 541 (1969).
482
J. P. STEVENS AND COMPANY, INC.
reasonable expectation of continued employment as of
September 13, 1976, and they are included in the unit."'
Likewise, I find that Marcie Rowe should be included in
the bargaining unit. As of the demand date, Rowe had only
been absent 15 weeks, which is not of sufficient duration to
make her expectation of reemployment unreasonable. The
fact that Rowe decided not to return to work when her leave
of absence terminated because she had remarried and was
moving from the area is not determinative. The fact that
during her leave of absence Respondent carried Rowe on its
active payroll and paid her for holidays and vacations
demonstrates Respondent's expectation that she would
return to work. Thus, I find that Rowe had a reasonable
expectation of reemployment as of the demand date and I
shall include her in the bargaining unit."
d. Miscellaneous issues
Respondent alleges that Mike Skidmore, the son of the
plant manager, belongs in the unit as does the porter, George
Henderson. The General Counsel would exclude both from
the unit. I agree with the General Counsel on both issues.
(I) Skidmore
Mike Skidmore, son of the then-plant manager, worked as
a humidifier man for 8 weeks in July, August, and
September 1976. He was first hired as a temporary employee
because he was a college student. he worked 37 hours one
week and 7 the next week, which ended for pay purposes on
July 25. He did not work for 17 days, then worked again for
6 weeks from August 11 through September 17, 1976, when
he quit to return to school. There is a handwritten notation
on his earnings record as follows: "quit & rehire, quit
again." Compton testified that he rehired Skidmore on
August I 11 as a permanent employee because his father said
Mike was not going back to school, presumably to college.
Neither Skidmore testified. During his last 6 weeks of
employment, Mike Skidmore worked 20-%y, 16, 26, 32, 32,
and 32 hours. Throughout his period of employment he was
paid $3.30 per hour. In contrast, Calvin Rumph, a full-time
permanent electrician's helper since May 1976, was receiving
$3.15 per hour during the period when Skidmore was
employed.
I do not include Skidmore in the unit. First, his short
employment record and his status as a college student makes
his community of interest with full-time, permanent employ-
ees tenuous at best. Ordinarily, students employed during
summer vacation periods are considered temporary employ-
ees and are excluded from bargaining units. Pacific Tile and
Porcelain Co., 137 NLRB 1358, 1364-65 (1962). Respon-
dent has not established that Mike Skidmore should be
considered any differently than a temporary employee.
" It is not determinative that Smallwood was later discharged and that Hill
has not yet returned to work. See M & M Charter Lines Inc. d/b/a M & M
Charter Bus Lines 173 NLRB 605, 609 (1968).
" The inclusion of the four leave-of-absence employees is also consistent
with the agreed-upon inclusion in the unit of employee Ted Gholston.
Gholston was effectively on leave of absence for most of 1976 because he was
collecting workmen's compensation for an on-the-job injury. He was terminat-
ed in December 1976 after his claim was settled by virtue of a lump sum cash
payment.
Respondent originally hired him as a temporary employee. I
do not place great reliance on Compton's conclusionary
testimony that he rehired young Skidmore, after he quit, as a
"permanent" employee. An employer's designation is not
dispositive on issues of unit placement. Neither Skidmore
testified to elucidate Mike Skidmore's intent, and Compton's
alleged determination of permanency was assertedly based
on a hearsay representation from the father that his son was
no longer interested in returning to school. It is highly
unlikely that Mike Skidmore's intent changed so sharply.
According to Compton, he was a temporary employee
through July 25; was no longer interested in going to school
on August 11; and later quit to return to school on
September 17. Unit determinations cannot be based on such
caprice. The hiatus between young Skidmore's first quit and
second hire was a mere 17 days. There was no change in his
$3.30-per-hour wage. He worked only a short period of time,
his work hours were irregular, and he left to return to
school. In these circumstances, I find that on the demand
date, September 13, Skidmore remained a temporary em-
ployee who did not share a community of interest with other
employees. '
Secondly, and perhaps more significantly, Mike Skidmore
was the son of the plant manager. He was paid more than a
full-time permanent employee in basically the same job
classification. He quit and was rehired 17 days later with no
difficulty, apparently upon his father's request. The higher
pay, irregular work hours, and ease with which he was
rehired indicate that he enjoyed special status in the
employment relationship. Moreover, the fact that young
Skidmore is a college student makes it likely that he is not
financially independent from his father. The father's influ-
ence on the son would tend to predispose the latter to follow
management views and ally him with management. Thus,
for this additional reason, Mike Skidmore does not have a
community of interest with rank-and-file employees, and his
inclusion in the bargaining unit would deprive other employ-
ees from enjoying the "fullest freedom in exercising the
rights guaranteed by [the] Act" as provided in Section 9(b)
of the Act. ' °
(2) Henderson
George Henderson, the office porter, testified about his
job. He has been employed at West Boylston by Respondent
or its predecessor since 1931; he has worked in the office
since 1942.10' He has a variety of duties, many of which take
him outside the plant. He is hourly paid and wears a
uniform, including coat, cap, and tie, provided by Respon-
dent; the cap has the Stevens name on it. He works primarily
in the administration building under the supervision of the
assistant office manager.
'a See Sandy's Stores Inc.. 163 NLRB 728, 729 (1967), enforcement denied
in part 398 F.2d 268, 272-273 ( Ist Cir. 1968) (Thaler and Oviment).
'"' Novi American Inc.-Atlanta. 234 NLRB 421 (1978). Cf. Pargas of
Crescent City, Inc., 194 NLRB 616 (1971); Tops Club Inc.. 238 NLRB 928
(1978).
' ' Henderson testified that he started in "]albout 1931 ," but "termites got
in the file and [ate] up the file and so the nearest thing that come out of it
would be '33."
483
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Henderson testified that his workday begins at 7 a.m.,
immediately after which he spends 20 to 25 minutes cleaning
the main office across from the mill. He then picks up the
morning mail at the post office, sorts the mail at the main
office, and delivers and picks up mail throughout the plant.
Henderson spends about 15 to 20 minutes in the mill while
delivering the morning mail. Henderson then works in the
front office, stamping and filing shipping cards and sorting
tags for materials delivered to the plant. He makes another
trip to the post office at 9:30 and then returns to the main
office to sort the mail. Henderson takes an hour and a half
lunch break which he spends at home. In the afternoon
Henderson does some sorting and preparation of tags in the
office and makes deliveries and minor purchases. Henderson
can charge up to $25 without a purchase order from
Respondent. Henderson spends about 2 hours a day on
errands to purchase materials for use in the plant. After
dropping off his purchase at the shipping and receiving
department, Henderson again spends 15 to 20 minutes
delivering and picking up mail in the mill. Henderson waits
at the main office until 3:55 p.m. and then makes a final trip
to the post office. Henderson leaves work at 4:30 p.m.
During his mail deliveries in the mill, Henderson occa-
sionally has conversations with production employees. Hen-
derson estimated he spent less than an hour a day on his
rounds through the mill. Personnel Director Compton
attempted to exaggerate Henderson's work in the production
area, but I reject his testimony as self-serving, theoretical,
and conclusionary. Henderson, in contrast, was a perfectly
candid witness who testified about his own work in meaning-
ful detail.
Based on the entire record, I find that the porter is an
office clerical employee whose interests are more closely
aligned with the front office employees, who are not in the
unit, than with the production clerks or other production
and maintenance employees who form the basis of this unit.
Henderson spends less than an hour a day in the mill, and
his contact with most unit employees is minimal. His
primary duties are performed either in the front office or
away from the plant. His schedule is different from that of
the other unit employees. The porter therefore lacks the
requisite community of interest with the production and
maintenance employees to be included in the unit. Accord-
ingly, I shall exclude the porter from the bargaining unit.
e. Unit description and composition
Based on the submissions and stipulations of the parties,
my findings set forth above, and the entire record, I find the
following to be an appropriate bargaining unit for Respon-
dent's West Boylston plant:
All production and maintenance employees, includ-
ing lab technicians, chief lab technician, production
clerks, payroll analysis clerk, head warehouseman,
training instructors, utility air conditioning mechanic,
and section men or fixers, employed at Respondent's
'"' The General Counsel's list includes Willie Townsend and Bruce Duke,
who were found to be employees.
," I have subtracted one employee from the list of 41 section men in G. C.
Exh. I(aa): this was George McGough who was terminated on the demand
date and was therefore not counted in the unit. The list of section men did not
include Townsend.
West Boylston facility, but excluding: training supervi-
sor, billing clerk, guards, payroll clerk, porter, traffic
manager, switchboard operator, office supervisor, secre-
tary-clerk, shipping supervisor, head packer, and all
other guards, managerial employees and supervisory
employees as defined in the Act.
My calculations show that the above appropriate unit had
a complement of 457 employees as of September 13, 1976,
the date of the Union's demand and the date against which
the parties agreed the Union's alleged majority should be
tested. I have computed the unit total by using the list of
employees in the General Counsel's Exhibit l(aa) and
subtracting Beverly Harvard, who was terminated before the
demand date, and Raymond Kelly, who was found to be a
supervisor; ' subtracting employees Marvin Boggan and
Winston Nobles, who were terminated on the demand date
and are thus excluded from the unit but were included in the
General Counsel's list; adding employee Laura Meade, the
production clerk who was included in the unit by stipulation
but inadvertently omitted from the General Counsel's list;
adding 40 section men; °" adding three leave-of-absence
employees whom I have included in the unit; °"' and also
adding three employees who did not appear on the General
Counsel's list because they were discriminatorily discharged
before September 13: William Minnifield, Margie Moss, and
Tim Walker.
A list of employees in the appropriate unit as of September
13, 1976, is shown in Appendix A to this decision. Those
who have been counted as having designated the Union as
bargaining representative are identified by an asterisk before
their names. (Appendix A omitted from publication.]
2. The issue of majority status
More than 220 employees testified to authenticate cards
they signed before September 13, 1976, authorizing the
Union to bargain on their behalf. Other cards were authenti-
cated by employees who solicited or received cards from
fellow employees or who witnessed the card signings. In
addition, many card signers declared their support of the
Union to their supervisors pursuant to instructions by Union
Representative Henry Mann to declare to Respondent that
they had signed cards. Respondent kept a list of such
declarants together with the date of the declaration. Person-
nel Director Compton testified that he met with "all the
overseers and department heads" in early August 1976 and
asked them "to make a list of the employees who came
forward to supervisors and identified themselves for the
Union." He also told them to tell the declarants that "that
was their right and their privilege." From these separate
lists, Compton made up and kept a master list which was
admitted in evidence. It is well settled that properly
authenticated union authorization cards or other evidence of
designation of a union as bargaining representative may be
used to establish majority support where an employer has
violated his bargaining obligation by committing unfair
'o Marcie Rowe was already included in the General Counsel's list,
apparently inadvertently. I have added employees Hill, Spires, and Small-
wood.
484
J. P. STEVENS AND COMPANY, INC.
labor practices which interfere with or preclude a free
election. In N.L.R.B. v. Gissel Packing Co., supra, the
Supreme Court stated that any convincing evidence of
majority support is sufficient to establish a bargaining
obligation:
Since § 9(a), in both the Wagner Act and the present
Act, refers to the representative as the one "designated
or selected" by a majority of the employees without
specifying precisely how that representative is to be
chosen, it was early recognized that an employer had a
duty to bargain whenever the union representative
presented "convincing evidence of majority support."
Almost from the inception of the Act, then, it was
recognized that a union did not have to be certified as
the winner of a Board election to invoke a bargaining
obligation; it could establish majority status by other
means under the unfair labor practice provision of §
8(a)(5)-by showing convincing support, for instance,
by a union-called strike or strike vote, or, as here, by
possession of cards signed by a majority of employees
authorizing the union to represent them for collective
bargaining purposes (395 U.S. at 596-597).
Respondent attacks the validity of the cards as evidence of
majority. Respondent objects to a large group of cards which
bear the name of the premerger union, the Textile Workers
Union. Respondent also objects to specific cards because
some were lost and the designation of the Union turns on the
testimony of the employees who subsequently signed second
cards after the demand date, and others were not authenti-
cated properly either as to signature or as to date.'?5
In evaluating Respondent's contentions, it must be kept in
mind that the parties agreed that the operative date for
counting designations for the purpose of determining wheth-
er the Union has achieved majority status was September 13,
1976-the date of the Union's demand. It must also be noted
that I gave Respondent the opportunity-which it utilized in
several instances-to compare the card signatures with the
employees' W-4 Social Security forms in Respondent's
possession. I also note that the General Counsel provided
Respondent in many cases with signed questionaires utilized
by the General Counsel in his investigation of the issue of
majority status, wherein the employees confirmed by mail
the cards they had signed. Finally, many of the cards were
signed or turned in at union meetings which were held 2
days a week, on Sundays and Tuesdays, after August 8,
1976.
a. The Textile Workers cards
Respondent objects to the validity of Textile Workers
cards signed after the merger of the Textile Workers Union
and the Amalgamated Clothing Workers Union. As I have
stated earlier in this Decision, the merger itself, formally
effectuated on June 1, 1976, was proper, and the postmerger
union, the Charging Party Union herein, was the lawful
continuation of the Textile Workers Union. Although the
first leaflet distributed at the plant mentioned only the
Textile Workers and over two-thirds of the cards submitted
'a In the latter categories, I also consider some cards or designations as to
whose admissibility I reserved at the hearing. I shall indicate these with the
designation "R" after the name.
in this case were Textile Workers cards, Union Representa-
tive Henry Mann-at the first union meeting on August 8,
1976, and at every meeting thereafter-told employees about
the merger. Every other leaflet distributed at the plant
carried the new name of the Union. So many employees
knew about the merger-and testified about Mann's eluci-
dating remarks about the merger at union meetings-that it
must be inferred that this fact was generally known among
employees at the plant. Indeed, during his August 16 speech,
Gregory informed all employees, "as you are aware, the
Amalgamated Clothing and Textile Workers Union is now
putting on a campaign to try to get into this plant."
Moreover, in December 1976, Respondent's chairman, by
letter, informed all employees that "The Textile Workers
Union has formed a merger with the Amalgamated Clothing
Workers Union." Finally, the only union conducting an
organizing campaign at West Boylston was the Charging
Party Union and it was represented by Henry Mann, who
had personal contact with almost all the card signers in one
way or another.
In the face of the above, none of the card signers asked for
the return of their authorization cards even though Respon-
dent, on at least one occasion, advised an employee of her
right to do so. Thus, whether Respondent focuses on all the
Textile Workers cards or those 72 cards signed before the
first union meeting, it is clear that the employees were not
misled as to which union they wanted to represent them.
Indeed, the merger itself contemplated the continuation of
the Textile Workers Union under a new and different name.
In American Enka, 231 NLRB at 1336, the Board stated
that the Union was "a combination and continuation of both
Amalgamated and Textile." The situation is thus very much
akin to that presented in N.L.R.B. v. Frank Bros. Company,
137 F.2d 989, 992 (Ist Cir. 1943), affd. 321 U.S. 702 (1974),
wherein the court stated:
Respondent contends that the union did not repre-
sent a majority of its employees, despite the fact that
out of eighty employees who worked for respondent,
forty-six had signed cards designating the union as its
representative. Its contention is based upon the fact that
certain of the cards signed by the employees designated
the union and others designated the Boston Joint Board
of the Amalgamated Clothing Workers of America. We
find no merit in this contention. The Boston Joint
Board is composed of seven members from each of the
thirteen locals in Boston and vicinity. The National
Executive Office of the union consists of representatives
of the Joint Boards throughout the country. With this
obvious tie-up between the Boston Joint Board of the
Amalgamated Workers and the union, it cannot be said
that in designating one or the other the employees
expected to be represented by different unions. We
think the Board was entirely justified in concluding that
the cards designating the union or the joint board could
be counted together in determining whether the union
had a majority status.
In these circumstances, I find that the Union's use of
Textile Workers cards was not misleading or improper and
485
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees who signed these cards clearly meant to
designate the Union as their bargaining representative.
b. Specific objections
(1) The lost cards
(a) Fred Houston
Fred Houston testified that he signed a union authoriza-
tion card after reading it on August 10, 1976. Although, on
cross examination, he admitted he was not sure of the
"exact" date, he insisted that he signed the card in August.
He received the card at a union meeting and mailed the
signed card to the Union but learned later that the card had
been lost. He signed a second card on December 13, 1976.
Houston's name appears on Respondent's list of union
supporters under the date of August 11, 1976. In view of the
fact that Houston identified for the Union to his supervisor
on August 11, it is likely, as he testified, that he signed his
first card on August 10. I thus count Houston as having
validly designated the Union. As the Board has stated,
"testimony of an employee is itself probative of a union's
majority status in circumstances where the card has been
misplaced." Hedstrom Co., a subsidiary of Brown Group,
Inc., 223 NLRB 1409, 1411 (1976), enfd. in relevant part
558 F.2d 1137, 1150(3d Cir. 1977).
(b) Eddie Givan
Eddie Givan testified that he signed an authorization card
at a union meeting sometime in August 1976. Later, Givan
was told that his card had been misplaced and that he would
have to sign another card. Givan signed a second card on
October 4, 1976. His name appears on Respondent's list of
union adherents under the date of August 12, 1976. I credit
Givan's testimony, corroborated by the fact that his name
appeared on Respondent's list, that he signed a union card in
August. Consequently, I count Givan among the employees
who designated the Union as bargaining representative.
(c) Ike Bennett III
Ike Bennett testified that he received a card at the front
gate of the plant. Bennett completed the card and turned it
in at the first union meeting. Bennett testified that he signed
the card the same day that Beatrice Moss visited his house
and informed him that she had also signed a card on that
day. Beatrice Moss' card is dated July 28, 1976. According
to Bennett, Margie Moss signed a card at the same time he
did. Ike Bennett and Margie Moss appear on Respondent's
list of union adherents under the date of August 9, 1976.
Bennett signed a second card, dated September 19, 1976,
because he had printed the first card. This second card was
received in evidence.
I agree with the General Counsel that Bennett's first card
should be counted. Although Bennett was uncertain as to
the exact date on which he signed the first card, other
evidence corroborates his testimony and indicates that
Bennett signed the card well before the demand date. Cards
were being distributed at the plant gate in late July. Beatrice
Moss' card, which Bennett claimed was signed the same day
as his, was dated July 28. The first union meeting was held
on August 8. At the early union meetings, Mann suggested
to employees that they announce that they had signed cards
to their supervisors. Bennett's name is on Respondent's list
of union supporters under the date of August 9, along with
that of Margie Moss. Thus, I credit Bennett's testimony that
he signed an authorization card well before the demand date.
Although thai card was subsequently lost, I will count it in
determining whether the Union achieved a majority.
(2) Objections as to date
(a) Julian Broadway
Myrtle Cauley testified that Julian Broadway brought a
signed and completed authorization card to her sometime
around August 12. The card bore the date August 11, 1976.
Cauley then delivered Broadway's card to Union Represen-
tative Mann. Although Cauley did not have independent
knowledge of when Broadway signed the card, her uncon-
tradicted testimony establishes the authenticity of the
authorization card and the date on the card.
(b) Rachel Foster
Rachel Foster testified that she received an authorization
card from Henry Mann at the plant gate. With Rachel's
permission, her husband completed the card and Rachel
signed it. According to Rachel, the August 25 date on the
card is incorrect because she gave the card to Henry Mann
at the first Tuesday union meeting on August 10. I credit
Foster's uncontradicted testimony that she signed the card
sometime in August, well before the demand date. Therefore
I find the card to be a valid designation of the Union.
(c) Robert Foster
Robert Foster testified that he signed a union card, but
asked his sister-in-law, Rachel Foster, to complete the rest of
the card. Foster was unsure of the date he signed the card.
The card carries the date of August 17, 1976. Rachel Foster
testified that she completed the card and dated it August 17,
the date she gave the card to Henry Mann at a union
meeting. Robert Foster's name appears on Respondent's list
of union adherents under the date August 9, 1976. Although
there is some doubt as to the exact date the card was signed,
I credit Rachel Foster's testimony that the card was signed
before the demand date on September 13, 1976. According-
ly, I find the card admissible and validly counted towards
the Union's majority.
(d) Lucy Robinson
Lucy Robinson testified that she signed an authorization
card at a union meeting on August 14, 1976. August 14 was
a Saturday, and union meetings were held on Sundays and
Tuesdays. Although Robinson apparently misdated the
card, I credit her testimony that she signed a card in August,
well before the demand date. Robinson's testimony is
corroborated by the fact that her name appears on Respon-
486
J. P. STEVENS AND COMPANY, INC.
dent's list of union supporters under the date August 9,
1976. 1 find Robinson's card to be a valid designation.
(e) Henry Bennett
Henry Bennett testified that his wife, Georgia, filled out,
signed, and dated a union authorization card for him
sometime in August. Henry was unsure of the exact date his
wife signed the card, but Georgia credibly testified she was
sure the date was August 5, the date on Henry's card and on
her own card. I therefore find Henry Bennett's card to be a
valid designation.
(f) Katherine Cowan
Katherine Cowan testified that although she did not recall
clearly where she obtained the union card, she remembered
signing and dating it correctly on July 29. Respondent
objects to the card because Cowan said she thought she
might have gotten the card at a union meeting, and the first
union meeting was not held until August 8. Cowan could not
really recall where she received the card, but her testimony
that she signed and dated the card on July 29 is credible.
Accordingly, I find Cowan's card to be valid.
(g) Charles Gipson
Charles Gipson testified that Mary June completed,
signed, and dated an authorization card for him. The card
was dated August 27, 1976. After full cross-examination,
Respondent had no objection to the card. However, I had
doubts about the card and questioned the witness further.
During my examination, Gipson corrected his earlier testi-
mony and said that June did not date the card. Gipson
testified he did not know who filled in the date on the card
and he did not recall when June completed the card. June's
testimony contradicts Gipson, as she claims she filled in the
date. June attempted to account for the different style and
ink of the writing of the date by claiming that the pen ran
out of ink after she completed the upper portion of the card.
I do not credit June's testimony regarding this matter, and I
found Gipson's testimony too vague for me to base a finding
on it. Therefore, I find that the General Counsel has failed to
establish that Charles Gipson's card was signed before the
demand date.
(h) Jesse Duncan (Jackson)
Jesse Duncan testified she signed a union card on August
5, 1976, and mailed it to the Union. The card is dated
August 8. Although Duncan did not date the card, she
remembers mailing the card the Thursday before the first
Sunday union meeting on August 8. I credit Duncan's
testimony that she signed the card on August 5. Therefore, I
find her card to be valid.
(i) L. C. Grace
L. C. Grace testified that he signed a union card on July
27, 1976. Although Grace at one point mistakenly testified
that he signed the card at a union meeting-the meetings did
not begin until August 8-Grace really could not recall
where he received the card or how he returned it to the
Union. However, he was certain that he correctly dated the
card when he signed it. Grace attended several union
meetings and he appears on Respondent's list as having
announced his union adherence on August 12, 1976. I thus
credit Grace's testimony that he signed the card well before
the demand date and find the card to be a valid designation.
(j) Julia Mae Johnson
Julia Mae Johnson testified that she filled out her entire
authorization card on August 10, 1976. She remembered the
date because it was the day of the second union committee
meeting. Respondent contends that the handwriting style of
the date differs from that of the phone number at the bottom
of the card. A writing sample taken at the trial shows no
significant difference from that of the date on the card. 1
thus credit Johnson's uncontradicted testimony that she
signed the card on August 10. Accordingly, I find her card
to be valid.
(k) Lois Alford
Lois Alford testified that she signed a union card in
August and brought it to the second union committee
meeting. However, she forgot to date the card. The card was
dated August 23, 1976, but Alford did not know who put
that date on the card. The second union committee meeting
was probably held in mid-August, and Alford insisted she
signed her card in August. Although there is some discrep-
ancy as to the exact date of the signing, I credit Alford's
testimony that she signed the card and turned it in at one of
the early union committee meetings. As these meetings took
place long before the demand date, I find Alford's card to be
valid.
(I) Moses Boyd
Moses Boyd's daughter, Rosetta, testified that she re-
turned her card, dated August 17, 1976, at the same union
meeting during which she obtained her father's card. She
watched him sign the card and returned it to the Union.
Moses Boyd's card, however, is dated August 10, 1976.
Although Rosetta may have been confused as to exact dates,
she was sure that she had returned her father's card to the
Union in August. Moses Boyd's name appears on Respon-
dent's list of union supporters under the date of August 11,
1976. I therefore credit Rosetta's testimony that her father's
card was signed sometime in August, and find Moses Boyd's
card to be valid.
(m) Flora J. Bennett
Jerry Davis testified that he gave a blank card to Flora
Bennett and that Bennett returned the card to him the next
day. The card had been completed, signed, and dated
August 9, 1976. Davis did not witness the signing of the
ca:d, but the fact that Bennett delivered the completed card
to Davis indicates her designation of the Union as her
bargaining representative. Respondent questions the date
487
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because Davis' testimony was imprecise, but it is clear that
he received Bennett's card within a few days of when he
signed his card, which is dated August 10, and his testimony
is not contradicted.
(n) Malcolm Moss (R)
Malcolm Moss testified that Larry Wright filled out a
card on his behalf at a union meeting because Moss had
difficulty writing. This was Moss' second card. Wright
copied the first card exactly as it was written, including the
August 3, 1976, date. Moss' original card had been handed
back to him at the meeting because it had been printed.
Larry Wright corroborated this testimony. The fact that
Moss' name appears on Respondent's list of union support-
ers under the date of August 9, 1976, further corroborates
Moss' testimony. Therefore, I credit Moss that he signed a
card before the demand date. Accordingly, I rule that Moss'
card is admissible and find his card to be valid.
(o) Margaret Griffin
Respondent objects to Margaret Griffin's card because it
is improperly dated "4/28/76." Griffin testified that she had
mistakenly dated the card but that she was certain that she
had signed the card the same month as her birthday which is
July 14. Griffin's husband corroborated the fact that the
card was signed shortly after his wife's birthday. Griffin's
name appears on Respondent's list of union adherents under
the date August 11, 1976. It is thus likely that Griffin signed
her card on July 28 at a time when many other employees
did, in response to the first distribution of union cards.
Accordingly, I credit Griffin's testimony that she signed her
card well before the demand date and thus find her card to
be valid.
(p) Doris Clayton
Manon Clayton testified that he filled out a card for his
wife to sign and that she signed the card about the same time
that his son signed a card. The card of the son, Jerry
Clayton, is dated August 19, 1976. Manon Clayton admitted
that he did not fill in the date on the card and that it was not
his wife's handwriting either. Although the date of August
18 on the card must be incorrect, in light of Doris Clayton's
testimony that she signed her card the day after her son
signed his card, her testimony, corroborated by that of her
husband, establishes that she signed the card around August
20, 1976, well before the demand date. I find Doris Clayton's
card to be valid.
(q) Juanita Weaver
Juanita Weaver testified that she signed a card in July
1976 and mailed it to the Union. Weaver testified that she
only wrote "7" and "76" in the date portion of the card.
Someone else placed "27" for the day. I credit Weaver's
uncontradicted testimony that she signed the card in July
1976, well before the demand date. Accordingly, I find
Weaver's card to be valid.
(r) Jessie Hood
Jessie Hood testified that he received a union card at a
union meeting, signed the card, and returned it at the next
meeting a week later. Although Hood must be mistaken
about the August 7 date on the card, because the first union
meeting was held on August 8, he was certain he signed the
card in August. Thus, although the day was wrong, he
clearly wrote August on the card. I therefore credit Hood's
testimony that he signed the card in August and find the
card to be valid.
(s) Virdean Moss (R)
Virdean Moss testified that she signed an authorization
card at a union meeting. The card was dated August 30,
1976. August 30 was a Monday, and union meetings were
held only on Sundays and Tuesdays. Thus, Moss must have
misdated the card at the time she signed it. Moss also
testified that she signed a card at an earlier date, shortly
after her vacation in July. However, this card was lost and
could not be introduced at the hearing. Moss' name appears
on Respondent's list of union adherents under the date of
August 11, 1976. This corroborates her testimony that she
signed a card in early August. It is also likely that she was I
day off on the date of her second card since meetings were
held on August 29 and 31. I thus credit Moss' uncontradict-
ed testimony regarding the first card and receive her second
card in evidence as having been signed in August. Accord-
ingly, I count Moss among those who designated the Union
as their collective-bargaining representative.
(t) Joseph Lee Jackson (R)
Joseph Jackson testified that he signed his union card
which was dated "8-10-76," at a union meeting he attended
with his daughter on that date. Jackson later testified that he
thought the eighth month was October. Jackson's daughter's
card is also dated August 10, 1976. Jackson's name appears
on Respondent's list of union supporters under the date
August 12, 1976. Although Jackson's testimony was confus-
ing at times, I find that Jackson signed his card some time in
August 1976, probably on August 10, well before the
demand date. Accordingly, I find Jackson's card to be
admissible and valid.
(u) Columbus Rutledge
Columbus Rutledge testified that someone read an autho-
rization card to him and asked him to fill out a card for the
Union. Rutledge gave that person permission to fill out the
card for him. David Lee Harris subsequently testified that,
on August 18, 1976, he completed, signed, and dated the
authorization card at Rutledge's request. Harris initialed the
card as well. Based on the credible testimony of Rutledge
and Harris, I find Rutledge's card to be valid.
(v) Audrey Jewel Thomas
Audrey Thomas testified that she partially filled out the
date on her card, which she signed at home, placing
488
J. P. STEVENS AND COMPANY, INC.
"August" on the card. However, because Thomas did not
know the exact date at the time, she asked her sister to check
the calendar and fill in the date while Thomas finished
dressing. Thomas was certain the August 8 date was correct
because she remembered it as the date of the first union
meeting. Her testimony was not contradicted. I thus find her
card to be valid.
(w) McKinley Pinkard (R)
McKinley Pinkard testified that he signed an authoriza-
tion card on July 22, 1976. Pinkard also testified that he
attended some union meetings prior to signing this card. He
was mistaken, since the first union meeting was held on
August 8. Pinkard also testified that he gave his brother
Alvin permission to sign a second card for him. Alvin
Pinkard testified that McKinley asked him to sign a card for
him on August 3. Alvin did so and turned the card in at the
first union meeting. The testimony of McKinley and Alvin
concerning the second card is corroborated by the fact that
McKinley Pinkard's name appears on Respondent's list of
union supporters under the date August 9, 1976. I thus
credit the testimony of the Pinkards regarding the card
signed by Alvin on McKinley's behalf and admit that card
into evidence. Accordingly, I find that card to be valid and
count McKinley Pinkard as an employee who designated the
Union to represent him.
(x) L. C. Ruth
L. C. Ruth testified that he read and signed a blank card
at Alvin Pinkard's request. The card was dated August 25,
1976. Because Ruth was in a hurry, he asked Pinkard to
complete the rest of the card. Alvin Pinkard testified that he
completed the card and dated it accurately on August 25,
1976. I credit the testimony of Pinkard and find Ruth's card
to be a valid designation as of August 25, 1976.
(y) Lorene Jackson
Lorene Jackson testified that she signed an authorization
card on July 28, 1976, but misdated the card "6/28/76." She
remembers signing the card in July because she had just
returned from vacation. Jackson's testimony is corroborated
by the fact that her name appears on Respondent's list of
union supporters under the date August II, 1976. Moreover,
it is likely that the card was signed in July since that is when
cards were first distributed at the plant gate. Therefore, I
credit Jackson's uncontradicted testimony and find her card
to be valid.
(z) Gloria Holloway
Gloria Holloway testified that she signed a union card at a
union meeting held on Tuesday; the card was dated August
18, 1976. Although August 18 was a Wednesday and not the
date of a union meeting, Holloway was certain she signed the
card in August. I credit Holloway's testimony that she
signed the card in August, well before the demand date.
Accordingly, I find the card to be valid.
(aa) Eugene Thomas (R)
Respondent objects both to the date and the signature on
this card. Eugene Thomas testified that a union card was
filled out for him because he cannot read or write. At first,
Thomas testified that he put an "X" for his signature, but
later he recalled signing a second card because a mistake had
been made on the first one. A comparison of Thomas'
signature on the card with a writing sample taken at the
hearing shows the two to be identical. Thomas' card is dated
August 23, which is a Monday, but Thomas testified that he
signed the card at a union meeting on Sunday. Thomas
recalled that the meeting was in August because it was
before his wife was injured in an auto accident the
September . Although the card may be misdated insofar as
the specific day is concerned, I credit Thomas' testimony
that he signed the card in August, well before the demand
date. Accordingly, I rule Thomas' card admissible and find
it to be a valid designation of the Union.
(bb) Malcolm 0. Stacey (R)
Steve Sullivan testified that he gave a blank card to
Malcolm Stacey and was present when Stacey signed the
card. Sullivan only glanced at the signature on the card and
did not know if Stacey had filled in the date. The date
appears to be written with a different type of writing
instrument than the rest of the card. Although Sullivan
believed that Stacey had signed the card around the August
25, 1976, date appearing on the card, he could not be sure.
Sullivan was not even certain whether the card had been
signed in the same month as his own card, dated August 10.
Because Sullivan was uncertain as to the time the card was
signed, and Stacey did not testify, the General Counsel has
failed to establish that Stacey's card was signed before the
September 13, 1976, demand date. I therefore admit the card
into evidence but I do not count Stacey as having designated
the Union.
(cc) C. L. Canty
Respondent objects to the card of C. L. Canty because the
date and other writing on the card appear to be different
from the signature. Although Canty may be mistaken in his
testimony that he filled out the entire card, his testimony
that he signed the card in early August is corroborated by
the fact that his name appears on Respondent's list of union
adherents under the date of August 9, 1976. Canty claimed
he signed his card on August 10. Even though he may have
been mistaken as to the exact date, I find he did sign a card
in August. Respondent also questions the signature on
Canty's card as being different from a writing sample taken
at the trial. I disagree. Moreover, Respondent did not submit
Canty's W-4 form for comparison. Thus, I credit Canty's
testimony that he signed his card in August and I count the
card as a valid designation.
(dd) Pearlie Mae Ellis
Alma Carter testified that she gave Pearlie Mae Ellis a
union card in the cafeteria and that she watched Ellis
489
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complete the card, date it, and sign it. The date on the card
is August 19, 1976. The fact that Ellis signed a card in mid-
August is corroborated by the inclusion of her name on
Respondent's list of union adherents under the date August
11, 1976. There was no showing that the card had been
dated incorrectly, even though Carter had difficulty inde-
pendently remembering the date. Therefore. I find the card
to be valid.
(ee) George Letcher
On direct examination, George Letcher testified that
Minnie Jackson gave him a card, which he completed and
returned to her during work on September 12, 1976.
According to Letcher, he placed a "9" for September on the
date space on the card, but he told Jackson to complete
writing the date because he had to return to work. On cross-
examination, Letcher testified that he asked Jackson to
complete the date because he did not know the date and he
watched her date the card. Because September 12 is only I
day before the demand date, the exact date of this card is
critical. The inconsistency of Letcher's testimony, the fact
that Letcher did not himself know the date, and the failure
of the General Counsel to call Jackson to elucidate this
matter, make me unwilling to find that the card was signed
before the demand date. Therefore, Letcher's card will not
be counted.""
(3) Objections as to signature
In none of the following cases did Respondent submit a
W-4 form to compare an employee's signature with that on
the card. I thus credit the testimony of those who authenti-
cated the cards and count the cards as valid designations:
Anthony Fields, Johnny Adams, Arthur LaPrade, Robert
LaPrade, Ann (Lyra A.) Kimbrough, Barbara McNeely,
and Albertha Jackson. All but Fields also appear on
Respondent's list of union supporters.
There remain the objections to the cards of Jimmy
Humphrey and Gwendolyn Butler. Respondent did submit
their W-4 forms for comparison of signatures.
(a) Jimmy Humphrey
I view with suspicion Humphrey's testimony that he
signed the union card (G. C. Exh. 176) which was dated July
28, 1976, and was purported to be signed by him. A
comparison of the signature on the union card with the
signatures on his W- form, as well as other documents
offered into evidence by Respondent, leaves me in consider-
able doubt as to who signed the card. In addition, Hum-
phrey's testimony about other issues in this case was far
from reliable.
However, Humphrey was an ardent union supporter
whose name appears on Respondent's list of union adherents
under the date of August 11, 1976. In its brief, Respondent
concedes that Humphrey made known his union support on
August 11 and, since he was acting on instructions from
Union Representative Mann, it is likely that the announce-
ment came in the form of a declaration that he had signed a
card. He probably had signed a card even though it was not
'" The card. however. was sufficiently authenticated to permit it t he
admitted into evidence.
the one admitted into evidence here. He distributed union
literature at the plant and attended union meetings in
August. Thus, Humphrey's union activity and the presence
of his name on Respondent's list of union supporters is
"convincing" and "reliable" evidence of his designation of
the Union as bargaining representative prior to the demand
date. See Pinter Bros.. Ic.. 227 NLRB 921. 922 (1977). See
also N'L.R.B. v. Gisel Packing Co.. Inc.. 395 U.S. at 596-
597.
(b) Gwenldolyn Butler
Jerry Davis testified that in early August 1976 he gave a
blank card to Butler and that, when she returned the card a
couple of days later, it was signed and dated August 11,
1976. Although Davis did not see Butler sign the card, the
fact that she returned the completed card and returned it to
him would ordinarily be sufficient to authenticate the card
as a proper designation by her of the Union. However.
unlike in the case of Bennett, whose card Davis also
authenticated, there is some discrepency between the signa-
ture on Butler's card and her W4 form. Nor did Butler's
name appear on Respondent's list of union supporters. In
the absence of other corroborating evidence, and the
testimony of Butler, I have considerable doubt about the
authenticity of Butler's card. Thus, I decline to count her
card toward the Union's majority.
(c) Summary
In summary. I have rejected the cards of Butler, Stacey.
Gipson, and Letcher and I shall not count them as evidence
of the Union's majority status.
Based on my rulings at the trial concerning the authoriza-
tion cards offered and received in evidence, my rulings and
findings as to people included in the unit, and the findings
made herein conccrning the validity of cards and designa-
tions specifically objected to by Respondent, I find that 262
employees in an appropriate bargaining unit had designated
the Union as bargaining representative by the demand date,
September 13, 1976. These employees are designated with an
asterisk on the list of employees in Appendix A to this
decision. "'
The Union's majority-262 out of a unit of 457-was a
solid 57.3% which, in the parlance of political election
results, would have been a landslide. In the posture of this
case-considering that the cards were tested in an adjudica-
tory proceeding with over 80% of them verified, under oath,
by the card signers themselves-the signed cards are a much
more reliable indicator of union support than an election
conducted at the West Boylston plant in September 1976
after Respondent's extensive unfair labor practices.
3. The effect of the unfair labor practices
Under the Supreme Court's Gissel decision, a bargaining
obligation attaches in the absence of an election if the unfair
labor practices are "outrageous" or "pervasive" or where
they are less serious but "have the tendency to undermine
majority strength and impede the election process." The
" Another group of employees signedl cards after the demand date I hase
not colilnled he'.c eard.
490
J. P. STEVENS AND COMPANY, INC.
unfair labor practices in this case were at least serious
enough to undermine majority strength and impede the
election process.
Respondent undertook a widespread and extensive cam-
paign with coercive captive audience speeches; threats of
reprisals; promises and grants of benefits; and solicitations of
grievances to counter the Union. Respondent also discrimi-
natorily discharged and disciplined many union adherents.
Twelve employees were subjected to disciplinary harassment
and discharge for their union activities. Three others were
issued warnings for engaging in union activities. Many
others were touched by threats, interrogation, and other
coercive conduct. Respondent's violations, which spanned a
I-year period, continued until the beginning of the hearing in
this case. The plant manager made coercive remarks in
speeches to small groups of employees shortly before the
beginning of the hearing; and Respondent discriminatorily
discharged a union leader, J. B. Jefferson, shortly after the
beginning of the hearing. These unfair practices were severe
and widespread, they were of a character which would
linger, and they are incapable of being dissipated under
traditional remedies.
Nor is there any reason to believe that similar violations
will not recur. Respondent has a history of similar violations
and, despite the existence of court decrees, it has not
changed its apparent policy of flouting the law in order to
prevent its employees from freely selecting a bargaining
representative to negotiate wages, hours, and terms and
conditions of employment on their behalf. Even in the two
instances where Respondent reinstated discriminatorily dis-
charged employees, it continued to litigate the validity of its
action, did not grant backpay to one employee, and made no
effort to notify all of its employees that it was remedying
unlawful conduct.
In these circumstances, I find that Respondent's unfair
labor practices were so serious and widespread that they
undermined the Union's majority and precluded a free
election at West Boylston. There is no reason to believe that
their effects have been dissipated or that traditional remedies
would prevent their recurrence. Rather, in view of Respon-
dent's unfair labor practice history and its conduct in this
case, denial of a bargaining order would undoubtedly create
in the minds of employees the notion that Respondent could
successfully flout the law and escape a bargaining obligation
simply by virtue of the passage of time. Shortly before the
hearing in this case, Plant Manager McGowan made
substantially this point when he cautioned that the case
might take years to resolution. Unfortunately for the
employees herein, he was probably right. Twenty-five years
ago, the Supreme Court approved the imposition of a
bargaining order in the absence of an election even though a
union subsequently lost its majority, based on authorization
cards, after the employer had refused to bargain with it. In
language apropos to the situation herein, the Court stated:
The Board might well think that, were it not to adopt
this type of remedy, but instead order elections upon
every claim that a shift in union membership had
occurred during proceedings occasioned by an employ-
er's wrongful refusal to bargain, recalcitrant employers
might be able by continued opposition to union mem-
bership indefinitely to postpone performance of their
statutory obligation. In the Board's view, procedural
delays necessary fairly to determine charges of unfair
labor practices might in this way be made the occasion
for further procedural delays in connection with repeat-
ed requests for elections, thus providing employers a
chance to profit from a stubborn refusal to abide by the
law. That the Board was within its statutory authority
in adopting the remedy which it has adopted to
foreclose the probability of such frustrations of the Act
seems too plain for anything but statement.
Frank Bros. Co. v. N.L.R.B., 321 U.S. at 705.
In sum, Respondent, by its serious unfair labor practices,
has forfeited its right to an election, and the Union's
majority, expressed by signed designations as of September
13, 1976, is a more reliable indicator of majority support
than would be a theoretically free election which is impossi-
ble to attain in the circumstances of this case. Thus, I find
that, when Respondent declined the Union's September 13,
1976, request for recognition and responded with serious
unfair labor practices, it violated Section 8(a)(5) and (1) of
the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(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 threatening its employees with economic and other
reprisals if they supported the Union; by interrogating its
employees about their union activities or those of other
employees; by soliciting grievances from its employees with
the implied or expressed promise that they would be
remedied without a union; by promising, announcing, and
granting benefits and improvements in terms and conditions
of employment to employees in order to discourage them
from supporting a union; by telling employees that support
of a union would be futile, that it would not sign a contract
with the Union, and that the identity of union card signers
and the names of those employees who filed charges with or
gave testimony before the Board would become known to it;
by soliciting employees to spy on union meetings and
copying down names of those employees engaging in union
activity; by threatening employees with harassment if they
signed union cards and informing them to report if they were
pressured into signing authorization cards; by issuing warn-
ings to employees for engaging in union activity; by telling
employees that they were not or would not be considered for
employment unless they foresaked the Union, Respondent
has violated Section 8(aX 1) of the Act.
4. By discharging and terminating employees William
Minnifield, Marva Watkins, J. B. Jefferson, Tim Walker,
Alvin Pinkard, Margie Moss, Melvin Boyd, Calvin Rumph,
Jerry Oliver, and Richard Purter, by suspending employee
Minnifield for 5 days, by refusing to transfer and thereafter
terminating employee Edward Beeman, by issuing nine
warnings to employee Willie Townsend, by issuing warnings
on August 18, 1976, to Margie Moss and Tim Walker, by
issuing warnings on June 10 and July 29 and 30, 1977, to J.
B. Jefferson, and by issuing warnings on September 8, 9, and
491
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
13, 1976, to Melvin Boyd, Respondent has violated Section
8(a)(3) and (1) of the Act.
5. By refusing to hire or consider for hire or rehire
employees Walker, Moss, Minnified, and Beeman because of
their union activities, Respondent has violated Section
8(a)(3) and (1) of the Act.
6. By refusing to hire or to consider for hire or rehire
employee Tim Walker because charges were filed on his
behalf with the Labor Board, Respondent violated Section
8(a)(4) and (1) of the Act.
7. By refusing to recognize and bargain with the Union on
September 13, 1976, in the appropriate unit set forth below,
Respondent has violated Section 8(a)(5) and (1) of the Act.
8. The appropriate unit is as follows:
All production and maintenance employees, includ-
ing lab technicians, chief lab technician, production
clerks, payroll analysis clerk, head warehouseman,
training instructors, utility air conditioning mechanic,
and section men or fixers, employed at Respondent's
West Boylston facility, but excluding: training supervi-
sor, billing clerk, guards, payroll clerk, porter, traffic
manager, switchboard operator, office supervisor, secre-
tary-clerk, shipping supervisor, head packer and all
other guards, managerial employees and supervisory
employees as defined in the Act.
9. The above are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
10. Respondent has not committed any other unfair labor
practices alleged in the complaint.
THE REMEDY
I shall recommend that Respondent be ordered to cease
and desist from engaging in the conduct found unlawful
herein and to post an appropriate notice. The notice should
be posted for I year in view of the severity of the unfair labor
practices, the timespan within which they occurred, and the
delay between violation and implementation of remedy. I
shall also recommend that Respondent be ordered to bargain
with the Union and that it offer reinstatement to employees
found to have been unlawfully discharged. Respondent will
also be ordered to make whole those employees who have
suffered loss of pay due to discrimination against them,
computed as provided in F. W. Woolworth Co., 90 NLRB
289 (1950), and Florida Steel Corp., 231 NLRB 651
(1977). ?9
The General Counsel and the Charging Party also request
certain additional remedies, such as companywide posting,
the reading and mailing of notices, and access to company
property by union organizers, which, by now, have become
traditional in Stevens cases. I find that these additional
remedies are appropriate in the circumstances of this case.
,o See, generally, Isis Plumbing d Heating Co.. 138 NLRB 716 (1962). I do
not order the reinstatement of employees Jefferson and Walker because the
record shows they were fully reinstated to the same or better jobs. Jefferson
was apparently reimbursed for his loss of earnings. Walker, however, was
simply rehired as a new employee. Edward Beeman is to be made whole for
the loss of earnings and benefits he suffered from September 10, 1976, when he
should have been transferred to a different job; and William Minnifield is to be
made whole for the loss of earnings and benefits suffered as a result of his 5-
day discriminatory suspension in August 1976, prior to his discharge.
See the Stevens cases reported at 239 NLRB 738 and at 240
NLRB 33 (1979).
In addition, the General Counsel requests a prospective
bargaining order covering future bargaining requests any-
where in the Stevens enterprise whenever the Union secures
either a card majority or a certification. In practical effect,
the General Counsel seeks to litigate future Gissel or
certification refusals to bargain in the context of a contempt
litigation rather than in Board procedures. Such a remedy
has been granted with regard to future certifications in the
Roanoke Rapids case, 239 NLRB at 770, which was itself a
certification refusal-to-bargain case. I see no need to repeat
such an order here, particularly since this was not a
certification refusal-to-bargain case. With respect to an in
futuro companywide order as it would apply to a Gissel
refusal to bargain, the Board rejected such a remedy in the
Roanoke Rapids case, primarily because a bargaining order
based on a card majority calls upon the Board's assessment
of the facts and its remedial authority in each particular
case. For this reason I do not think such a remedy is
appropriate here, even though Respondent has demonstrated
that when presented with card majority it is disposed to
commit unfair labor practices which may preclude the
holding of a free election. Moreover, the General Counsel
has readily available litigation tools to accomplish the same
result. If similar conduct should take place at another
Stevens plant, the General Counsel may urge that a
particular set of facts, including a card majority and
substantial unfair labor practices, justifies a temporary
injunction to force immediate recognition and bargaining
under Section 10(j) of the Act. In these circumstances, I see
no reason to issue a companywide in futuro bargaining order
and I decline to include such provisions in this Order.
The Charging Party also requests that the Order include
the imposition of an "interim grievance procedure" whereby
Respondent is required to reduce to writing all its existing
terms and conditions of employment and to discuss and
process employee grievances. While the request is imagina-
tive, it is the same type of request which was rejected by the
Board in the Roanoke Rapids case. For the same reasons
stated by Administrative Law Judge Ries in his Decision,
adopted by the Board, I reject the request in this case. See
239 NLRB at 772.
Finally, the General Counsel and the Charging Party
request the reimbursement of litigation and organizational
expenses in this case. I also decline to impose these
additional remedies. While Respondent's unfair labor prac-
tices were serious and its defenses were often wide of the
mark and artificial, I cannot label them frivolous. Moreover,
Respondent succeeded in disproving many of the allegations
in the complaint. Thus, the Order herein shall not include a
provision for reimbursement of litigation or organizational
expenses."°
"" Respondent offered into evidence two exhibits concerning written and
video-tape instructions prepared by counsel and given to its supervisors
concerning their obligations under the labor laws. These instructions, which
were transmitted to the supervisors in November 1977. were prepared in
connection with a Second Circuit contempt decree, although the decree did
not by its terms apply to the West Boylston plant. I reserved ruling on these
exhibits. I now rule that the exhibits are admissible and that Respondent
492
J. P. STEVENS AND COMPANY, INC.
Upon the foregoing findings of fact, conclusions of law,
and the entire record and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER"'
J. P. Stevens & Co., Inc., New York, New York, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging union activity on behalf of the Union or
any other labor organization by discharging, refusing to
transfer, hire, rehire, or reinstate, suspending, harassing,
disciplining, or issuing warnings to employees, or otherwise
discriminating against employees in any manner with respect
to their tenure of employment or any term or condition of
their employment.
(b) Interrogating its employees about their union activities
or those of other employees.
(c) Soliciting grievances from its employees with the
implied or expressed promise that they will be remedied
without a union.
(d) Promising or granting benefits or improvements in
terms and conditions of employment or announcing such
benefits or improvements to employees in order to discour-
age them from supporting the Union or any other labor
organization. However, nothing herein shall be construed as
authorizing or requiring Respondent to vary or abandon any
benefits previously conferred.
(e) Threatening employees with economic and other
reprisals because they engage in union activities.
(f) Telling employees that support of a union will be futile,
that it will not sign a contract with the Union, or that it will
learn the identity of union card signers and the names of
employees who file charges or give testimony concerning
unfair labor practices against it.
(g) Soliciting employees to spy on union meetings or
activities or otherwise engaging in surveillance of union
activities or creating the impression among employees of
surveillance of union activities.
(h) Threatening employees with harassment if they sign
union cards, informing or encouraging employees to report
to it if employees are pressured into signing union cards, and
issuing warnings to employees who pass out union cards or
engage in union activity.
should instanter provide copies of the exhibits to the General Counsel and the
Charging Party if it has not already done so. Although the exhibits deal
essentially with compliance matters, they are useful in providing a full record.
I note, however, that nothing in the exhibits convinces me that a bargaining
order-or any other remedy herein-is not appropriate. The instructions were
not transmitted to employees and did not seek to retract or dissipate past
unfair labor practices. Indeed, supervisors were instructed in October 1976
and thereafter of their obligations under the Act by lawyers for Respondent,
yet violations continued. The fault lies not in supervisors misapprehending the
law but in their superiors flouting it, either directly or by condoning
brinksmanship and engaging in subtleties uncovered only through litigation.
Finally, these instructions were given in November 1977, over I year after the
refusal to bargain herein. The Board has made it quite clear that, in assessing
the propriety of a bargaining order, "the situation must be apprised at the
time the unfair labor practices occurred and not at the time the Board is
deciding the case." International Manufacturing Co., Inc., 238 NLRB 1361,
1362 (1978). See also Plastic Film Products Corp.. 238 NLRB at 137.
Respondent also filed a motion to reopen the record on August 3, 1978-
after the end of the hearing-to receive evidence of numerous measures it has
taken "to assure compliance" with the Act, many of which were taken
pursuant to Board and court orders and as a result of litigation by the General
(i) Telling employees that they will not be considered for
employment unless they foresake the Union or refusing to
hire employees because charges were filed on their behalf
with the Labor Board.
(j) Refusing to bargain collectively with the above-named
Union as the exclusive bargaining representative in the
appropriate bargaining unit set forth herein.
(k) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their Section 7
rights.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request, recognize and bargain in good faith with
Amalgamated Clothing and Textile Workers Union as the
exclusive representative of all employees in the appropriate
unit set forth below, with respect to rates of pay, wages, and
other terms and conditions of employment and, if an
understanding is reached, embody such understanding in a
written, signed agreement. The appropriate unit is:
All production and maintenance employees, includ-
ing lab technicians, chief lab technician, production
clerks, payroll analysis clerk, head warehouseman,
training instructors, utility air conditioning mechanic,
and section men or fixers, employed at Respondent's
West Boylston facility, but excluding: training supervi-
sor, billing clerk, guards, payroll clerk, porter, traffic
manager, switchboard operator, office supervisor, secre-
tary-clerk, shipping supervisors, head packer and all
other guards, managerial employees and supervisory
employees as defined in the Act.
(b) Offer to William Minnifield, Marva Watkins, Alvin
Pinkard, Margie Moss, Edward Beeman, Melvin Boyd,
Calvin Rumph, Jerry Oliver, and Richard Purter immediate
and full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges, and
make them and employees Tim Walker and J. B. Jefferson
whole for any loss of earnings or benefits connected with
their employment status they may have suffered because of
Respondent's discrimination against them in the manner set
forth in the section herein entitled "The Remedy."
(c) Expunge and remove from its records and files any
warning notices, suspensions, or other notations dealing with
Counsel. Respondent asserts that the proffered evidence "was not presented
during the hearings in the instant case because such evidence became available
since that time." Whether such proffer relates to the extraordinary remedies
requested by the General Counsel or the bargaining order, such evidence is of
minimal relevance and, in any event, would not alter my conclusions as to
remedy. The proffered evidence does not deal with substantive allegations but
rather involves matters of general compliance with the labor laws. Moreover,
the events took place well after the operative misconduct and was not
addressed specifically to its redress. I therefore deny the motion to reopen. Cf
Bandag. Inc. v. N.LR.B., 583 F.2d 765, 770-773 (5th Cir. 1978). See Republic
Steel Corp.. 9 NLRB 219, 400 (1938); N.LR.B. v. Swift & Co.. 129 F.2d 222
(8th Cir. 1942).
Despite Respondent's proclaimed changes in corporate policy, the need for
an appropriate remedy for its serious misconduct remains the same: "Plus ca
change et plus c'est la meme chose."
"' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
493
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the terminations of the employees found to have been
discriminated against herein. In addition, remove from its
files the following warnings: those of Willie Townsend from
August 1976 until February 1977; those of J. B. Jefferson
dated June 10 and July 29 and 30, 1977; those of Margie
Moss and Tim Walker on August 18, 1976; those of Melvin
Boyd on September 8, 9, and 13, 1976; those of William
Minnifield from August 20, 1976, until his discharge; and
those of Edward Beeman after September 10, 1976. In
addition, Respondent shall write a letter to each affected
employee informing him or her that it has complied with
this provision.
(d) Post in conspicuous places in each of Respondent's
plants, including all places where notices to employees are
customarily posted, for a period of 1 year, copies of the
attached notice marked "Appendix B.""'2 Copies of said
notice, on forms provided by the Regional Director for
Region 15, shall be signed on behalf of Respondent by its
president and the chairman of its board of directors, and, in
addition, by each of the other members of the board of
directors and by the highest managerial official of the plant
in which the notice is posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Reproduce and mail to the home of each of its
employees at all of its plants, a facsimile of the aforesaid
signed notice, together with the letter appended hereto as
"Appendix C." Said letter shall be reproduced on Respon-
dent's regular business stationery and signed by the highest
official of the recipient's plant. Respondent shall provide the
Regional Director for Region 15 with proof of such mailing.
(f) At such reasonable time after the entry of this Order as
the Board may request, convene during working time by
departments and shifts all its employees in each of its plants
and, at its option, either have the notice read by the highest
managerial official in the plant or provide facilities and
permit a Board agent to read the notice to the said
employees. In the event Respondent chooses to have the
notice read by its official, the Board shall be afforded a
reasonable opportunity to provide for the attendance of a
Board agent.
(g) Upon request of the Union, made within 2 years from
the date hereof, immediately grant the Union and its
representatives reasonable access to the plant bulletin boards
and all places where notices to employees are customarily
posted, at each of Respondent's plants, for a period of I year
from the date of request.
(h) In the event that during a period of 2 years following
entry of this Order any supervisor or agent of Respondent
convenes any group of employees at any of Respondent's
plants and addresses them on the question of union
representation, give the Union reasonable notice thereof and
afford two union representatives a reasonable opportunity to
be present at such speech, and, upon request of said
representatives, permit one of them to address the employees
for the same amount of time as Respondent's address.
(i) If within the next 2 years the Board schedules an
election in which the Union participates at any of Respon-
dent's plants, then, upon request by the Union, afford at
least two union representatives reasonable access to each of
Respondent's said plants and appropriate facilities to deliver
a 30-minute speech to employees on working time, the date
thereof to be within 10 working days before, but not within
48 hours prior to, any such election.
(j) Upon request of the Union, immediately furnish it with
lists of the names, addresses, and classifications of all of
Respondent's employees at each of its plants as of the latest
available payroll date, and furnish a corrected, current list to
the Union at the end of each 6 months thereafter during the
2-year period referred to above.
(k) For a 2-year period, upon request of the Union,
without delay, permit a reasonable number of Union
representatives access for reasonable periods of time to all its
canteens, rest, and other nonwork areas, including parking
lots, within each of its plants, for the purpose of communi-
cating orally and in writing with the employees in such areas
during changes of shift, breaks, mealtimes or other nonwork
periods.
(1) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records and all other records necessary or appropriate to
analyze the amounts due employees under this Order.
(m) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that those portions of the
complaint found to be without merit are hereby dismissed.
"' In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX C
Dear Stevens Employee:
This letter, and the enclosed notice, is being sent to all J.
P. Stevens employees to inform you of a recent decision by
the National Labor Relations Board' relating to the Stevens
facilities in West Boylston, Alabama.
The Amalgamated Clothing & Textile Workers Union of
America, AFL-CIO, has been trying to organize the West
Boylston hourly employees for the purpose of having them
select that Union as their collective-bargaining representa-
tive. After a hearing the National Labor Relations Board
found that the Company interfered with, restrained, and
coerced employees in the exercise of their rights under the
National Labor Relations Act.
As you can see from the enclosed notice, the Company has
promised that, in the future, we will comply in good faith
with the labor laws.
Sincerely yours,
(Plant Manager)
' If the Board's Order is enforced by a court of appeals, insert at this point,
", approved by a United States Court of Appeals,".
494