Kayser-Roth Hosiery Co., Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1967

166 N.L.R.B. 372 (N.L.R.B. 1967)

372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kayser-Roth Hosiery Co ., Inc. and Textile Workers
Union of America , AFL-CIO
Kayser Roth Company, Inc. and Textile Workers
Union of America, AFL-CIO
Kayser-Roth Company, Inc. and Textile Workers
Union of America (Hosiery Division). Cases
10-CA-5691, 10-CA-5749, 10-CA-5721,
10-CA-5735, 10-CA-5898 , 10-CA-6000, and
10-CA-6159
June 30,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On December 22, 1966, Trial Examiner Welling-
ton A. Gillis issued his Decision in the above-enti-
tled proceeding, finding that Respondent had en-
gaged in and was engaging in certain unfair labor
practices, and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion . The Trial Examiner also found that Respond-
ent had not engaged in other violations alleged in
the complaint and recommended dismissal as to
them. Thereafter, the Respondent filed exceptions
and a supporting brief. I
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Ex-
aminer made at the hearing and finds that no preju-
dicial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and brief, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recomihendations of the
Trial Examiner, with the following modifications:'
The Trial Examiner concluded that Respondent
violated Section 8(a)(3) and (1) of the Act by deny-
ing reemployment to James McMillian during the
first week of July 1964. We do not agree . The facts
show that McMillian was employed in March 1964
1 No exceptions were filed to the Examiner's failure to find other viola-
tions alleged in the complaint. Accordingly, we adopt his disposition of
these matters pro forma
2 In adopting the Examiner's 8(a)(1) findings , we find it unnecessary to
rely upon Supervisor Troy Ward's alleged surveillance and threat to spy
upon the May 12 union meeting; Respondent's April 20, 1964, notice ad-
verting to "serious harm" which might flow from union activity "in the
long run," relied upon by the General Counsel only to show antiunion
animus; and Superintendent Roberson's conduct alleged to have
discouraged Alveida Harris from honoring a Board subpena.
In finding that Supervisor Parker Bean unlawfully threatened employee
as a construction worker on a temporary basis. On
April 12, the construction work ended and, on
April 15, Respondent gave McMillian a job as a
knitter trainee.3 McMillian worked as a knitter
trainee until April 28, when ill health forced him to
quit. It was understood that McMillian would take
a layoff slip and return when he was physically able
to work. By mid-June, McMillian had recovered
sufficiently to work, but was twice told that jobs
which he could perform were not available. In the
first week of July, Superintendent Everett Rober-,
son informed McMillian that he needed knitters but
wanted to employ women for this job. Unlike the
Examiner, we find no basis for inferring antiunion
motivation from Respondent's preference for
women knitters. The record establishes that
Respondent was then in the process of conforming
the Dayton plant to a companywide policy of using
women knitters, even though Respondent did retain
men knitters already on the job, and had previously
started to train McMillian as a knitter. It does not
appear, moreover, nor was it even contended, that
Respondent was implementing this policy in an an-
tiunion fashion. In short, we find insufficient
evidence to support the inference that Respondent
had a job opening for male knitters and unlawfully
withheld it from McMillian because of his union
activities. 4
We are also unable to accept the Trial Examiner's
conclusion that Respondent violated Section 8(a)(3)
and (1) of the Act by discharging Mary Frances
Bowen on September 22, 1964.5 The Examiner, re-
jecting the Company's contention that Bowen was
discharged for using profane language on the job,
found that Bowen 's union activity prompted her
discharge. The Examiner did find that Bowen had
in fact used profane language, that this was reported
to management, and that profanity was specifically
prohibited by company rules. However, the Ex-
aminer felt that since it was Bowen 's first offense
and "a relatively minor one ," Respondent would
have imposed a lesser penalty, absent "an addi-
tional and an alternative [i.e., antiunion] motive."
But we find that the key element for unlawful mo-
tive- company knowledge of Bowen's union ac-
tivity- is lacking. There is admittedly no direct
evidence of company knowledge. And we are una-
ble to infer knowledge of Bowen's limited union
activity,6 as the Trial Examiner did, from a general
Peggy Wright on April 15, 1964, the Examiner inadvertently refereed to
Wright as "Hill" in his concluding sentence.
3 Cecil Housley was McMillian's supervisor and was aware of McMil-
lian's union sympathies at this time.
4 We note that the complaint specifies discharge on April 28, rather
than refusal to reemploy in July , as the offending discrimination in McMil-
lian's case.
5 Member Brown would affirm the Examiner 's finding as to Bowen.
6 The only evidence of Bowen 's union activity was her testimony that
she signed a union card in June or July and "talked to other employees
about signing a union card "
166 NLRB No. 56
KAYSER-ROTH HOSIERY CO.
belief that "with time" the Company knew or
suspected "most" of those favoring the Union,' and
the fact that Bowen "appears to have been less than
silent on the matter." Such beliefs and appearances
are too nebulous a basis for inferring the actual
communication of information about Bowen's
union activity to the Company. The vagueness of
the Examiner's finding is further reflected in his
placing the acquisition of company knowledge as
"sometime between June and the latter part of Sep-
tember." We must conclude that there is insuffi-
cient evidence that the Company knew of Bowen's
union activity and acted on this knowledge in
discharging her on September 22.
Accordingly, we shall reverse the Examiner's
findings of 8(a)(3) violation as to James McMillian
and Mary Frances Bowen, and dismiss the com-
plaint's allegations in respect to them.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, as modified
below, and hereby orders that the Respondent,
Kayser-Roth Hosiery Company, Inc., Dayton,
Tennessee, its officers, agents, successors, and as-
signs, shall take the action set forth in the Trial Ex-
aminer's Recommended Order, as herein modified.
1. Delete paragraphs 1(d), (e), and (f), and
renumber the remaining paragraphs consecutively.
2. Delete paragraphs 2, 3, and 4 of the Notice.
3. Delete the names of James McMillian and
Mary Frances Bowen from paragraph 16 of the
Notice.
Support for this is apparently founded on an inference drawn from cer-
tain unspecified testimony of "several " unnamed supervisors.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WELLINGTON A. GILLIS, Trial Examiner: Upon
charges filed on April 28, as amended on May 4 and June
1 While the above charges were filed by American Federation of
Hosiery Workers, AFL-CIO, predicated upon the statement of counsel
for the Charging Party made at the opening of the hearing to the effect that
on April 15, 1965, American Federation of Hosiery Workers, AFL-CIO,
had merged with Textile Workers Union of America, AFL-CIO, I
granted without objection the Charging Party's motion to change the name
of the Charging Union to conform with the merger action. Thus , the name
of the Charging Party, hereinafter referred to as the Union , appears in the
caption as corrected at the hearing.
2 After the close of the hearing on June 9 , 1965 , pursuant to an addi-
tional charge having been filed on June 21, 1965, as amended on July 19,
1965, in Case l0-CA-6159, culminating in a complaint issuing on August
27, 1965, alleging additional violations of Sec. 8 (a)(3) and (4), on Sep-
tember 20, 1965, I granted the General Counsel's motion to reopen
record and consolidate cases. Thereafter, pursuant to notice contained
therein, the hearing was reconvened and closed on October 12, 1965.
373
10, 1964, in Case 10-CA-5691; on May 22, 1964, in
Case 10-CA-5721; on May 28, 1964, in Case
10-CA-5735; on June 10, 1964, in Case 10-CA-5749;
on October 28, 1964, as amended on January 18, 1965,
in Case 10-CA-5898; and on February 23, 1965, as
amended on March 19, 1965, in Case 10-CA-6000, by
the American Federation of Hosiery Workers,
AFL-CIO,' the General Counsel for the Board,
hereinafter referred to as the Board, issued complaints on
June 15 and July 20, 1964, and on March 26 and April
29, 1965, against Kayser-Roth Company, Inc.,
hereinafter referred to as the Respondent or the Com-
pany, alleging violations of Section 8(a)(1) and (3) and
Section 2(6) and (7) of the National Labor Relations Act,
as amended (61 Stat. 136), hereinafter referred to as the
Act. The Respondent thereafter filed a timely answer to
the consolidated complaint denying the commission of
any unfair labor practices.
Pursuant to notice, a hearing was held in Dayton, Ten-
nessee, on 16 hearing days between May 17 and June 9,
1965, and on October 12, 1965,2 at which all parties were
represented by counsel, were afforded full opportunity to
be heard , to examine and cross-examine witnesses, and
to introduce evidence pertinent to the issues.
Upon the entire record in this case,3 and from my ob-
servation of the witnesses and their demeanor on the wit-
ness stand , and upon substantial , reliable evidence "con-
sidered along with the consistency and inherent probabili-
ty of testimony" (Universal Camera Corporation v.
N.L.R.B., 340 U.S. 474, 496), I make the following:
FINDINGS AND CONCLUSIONS4
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a North Carolina corporation with an
office and place of business located at Dayton, Tennes-
see, is engaged in Dayton in the manufacture and sale of
hosiery and related products. Annually the Respondent
sells and ships products valued in excess of $50,000
directly from its Dayton, Tennessee, plant to customers
located outside the State of Tennessee. I find that the
Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that Textile Workers Union of America,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3 I hereby note and correct the following errors contained in the other-
wise accurate and well-transcribed transcript: p 81, 1. 11, "the" should
read "she"; p. 83 , 1 12, "her" after the word "told" should read "him",
p. 722, 1 7, "TRIAL EXAMINER" should read "WITNESS"; p. 827,
1. 24, "not" should be added before the word "hesitated", p. 2065,1 15,
"not" should read "now" ; p. 3275, 1. 21, the second "to" should read
"through" , and p. 3275,1. 23, the third "to" should read "through."
° The great bulk of the testimony in this proceeding concerning material
matters, involving some 88 witnesses and several thousand pages of trans-
cript, is conflicting and contradictory . My findings of fact are predicated
upon my careful consideration of the entire record and my observation of
the witnesses and their demeanor while testifying . While, in the interest of
brevity, all of the evidence on disputed matters has not been set forth, all
evidence has been Considered and weighed and, where deemed necessary,
resolved
308-926 0-70-25
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory Statement
Subsequent to the issuance of complaints on June 15
and July 20, 1964, which were based upon unfair labor
practice charges filed in Cases 10-CA-5691;
10-CA-5721; 10-CA-5735; and 10-CA--5749, the
parties entered into an informal settlement agreement ap-
proved on August 13, 1964, disposing of all 8(a)(1) and
(3) issues then pending.5 Thereafter, predicated upon a
representation petition filed by the Union on September
11, 1964, and a representation hearing held on October
2, 1964, in Case 10-RC-6077, an election was conducted
among the Respondent 's employees on November 18,
1964, the result of which , because of challenged ballots,
had not been determined as of the date of the instant
proceeding . On February 12, 1965, based upon 8(a)(3)
charges filed in Case 10-CA-5898, some of which the
Regional Director determined were meritorious, the Re-
gional Director found that the Respondent had failed to
fully comply with the August 13 settlement agreement
and set it aside. Thus, in addition to postsettlement con-
duct of the Respondent, the March 26, 1965, complaint
contained numerous 8(a)(1) allegations that had been sub-
ject to the August settlement agreement . The con-
solidated complaint , dated April 29, 1965, upon which
the instant case initially went to hearing , included 8(a)(1)
and (3 ) allegations , some of which dated back to March
18, 1964, and contained additional 8(a)(3) allegations
based upon subsequent charges filed in Case
10-CA-6000.
In essence , the consolidated complaint , as amended at
the hearing , 6 alleges (a) approximately 107 instances of
independent 8(a)(1) conduct , all but 8 or 9 of which al-
legedly occurred prior to the approval of the settlement
agreement on August 13, 1964; and (b) 30 dis-
criminatees , all but 7 of whom allegedly were dis-
criminated against subsequent to the execution of the set-
tlement agreement.7
The position taken by the Respondent , as articulated
by its counsel at the opening of the hearing, asserts that
there had been complete compliance with the August set-
tlement agreement well in advance of the Regional
Director 's action in setting it aside on February 12, 1965,
that such action by the Regional Director was therefore
improper , and accordingly, that only matters alleged in
charges filed subsequent to the execution of the settle-
ment agreement which were not a part of that agreement
are subject to litigation in this proceeding. In view of cer-
tain of my findings hereinafter set forth, with respect to
matters occurring during and subsequent to the posting
period, it follows, contrary to that asserted by the
Respondent, that there was not at any time full com-
pliance with all of the terms of the settlement agreement.
Accordingly, as it is well established that where it appears
that an employer has failed to comply with a settlement
agreement or has engaged in additional unfair labor prac-
tices since that agreement, the Regional Director may
unilaterally set aside the settlement agreement and
proceed with a complaint which includes both pre- and
post-settlement violations,8 I find without merit the
Respondent's position. Moreover, in determining the ex-
istence of unlawful conduct since the settlement agree-
ment, relied upon in part in justifying the setting aside of
the settlement agreement, presettlement agreement con-
duct may now be used as background evidence to
establish its illegality under the Board's recent partial
reversal of its longstanding Larrence Tank doctrine,9 as
enunciated in Joseph's Landscaping Service.'"
Therefore, having found that the Regional Director
properly set aside the settlement agreement, I find it in-
cumbent to resolve matters pertaining to presettlement as
well as postsettlement conduct.' i
B. The Issues
1. Whether the Respondent interfered with,
restrained, or coerced its employees in violation of Sec-
tion 8(a)(1) of the Act, by interrogating its employees
concerning their union membership and the union mem-
bership of other employees; threatening its employees
that it would close its plant if the Union were successful
in its organizational campaign; threatening its employees
with physical violence if they joined or engaged in activi-
ties on behalf of the Union; threatening its employees
with discharge if they joined or engaged in activities on
behalf of the Union; threatening its employees with more
onerous working conditions if they joined the Union or
engaged in activities on its behalf; threatening its em-
ployees that it would withdraw existing privileges and
reduce wages if they joined or engaged in union activities;
threatening its employees that they would suffer serious
harm if they joined the Union or engaged in union activi-
ties; threatening its employees that it would engage in sur-
veillance of their union meetings; threatening its em-
ployees that it would eliminate overtime work and pay if
5 Pursuant to the terms of the agreement, which contains a nonadmis-
sion clause , 11 alleged discruninatees were reinstated or otherwise made
whole for alleged discrimination against them.
6 I permitted counsel for the General Counsel to amend the complaint
by adding certain 8(a)(1) allegations, and deleting the names of Tommy
Thurman, Albert Calbaugh, and Elizabeth Dillard as alleged dis-
crimmatees.
' Of these seven who were allegedly discriminated against prior to the
execution of the settlement agreement , only one was involved in the set-
tlement agreement. Of the 30 alleged discriminatees 3 were subsequently
added as 8(a)(3) and (4) violations based upon their having testified
against the Respondent earlier in this proceeding
8 Southland Paint Company, Inc., 156 NLRB 22; Wallace Corporation
v. N.L.R.B, 323 U.S. 248,253-255; International Brotherhood of Team-
sters, etc ., 116 NLRB 1891, 1898-99, Baltimore Luggage Company, 126
NLRB 1204, 1208.
' Larrence Tank Corporation Company, 94 NLRB 352, 353. The rule
there set forth , and until now followed, assets that "It is the Board's
established practice not to consider as evidence of unfair labor practices
conduct of a Respondent antedating a settlement agreement, unless the
Respondent has failed to comply with the settlement agreement or has en-
gaged in independent unfair labor practices since the settlement
Moreover , in determining whether such independent unfair labor prac-
tices have occurred after the settlement, the Board will not appraise a
Respondent's post-settlement conduct in light of its conduct prior to the
settlement."
10 Northern California District Council of Hodcarriers and Common
Laborers of America, AFL-CIO; Construction and General Laborers
Union Local No 185, AFL-CIO (Joseph's Landscaping Service), 154
NLRB 1384 (footnote 1). The Board therein held that "to the extent that
the above rule bars the use of presettlement conduct as background
evidence establishing the motive of object of a Respondent in its postset-
tlement activities , we have concluded that it is incorrect ." See also
Climate Control Division, The Singer Company, 160 NLRB 765.
11 See Bangor Plastics, Inc., 156 NLRB 1165.
KAYSER-ROTH HOSIERY CO. 375
the Union were successful in its organizational drive;
threatening its employees that it would not promote its
employees if they joined or engaged in activities on behalf
of the Union; spying upon and keeping under surveillance
the union meetings and activities of its employees; in-
stituting a hiring practice to discriminate against em-
ployees because of their union membership, sympathies,
and activities on behalf of the Union; instituting a rule
prohibiting employees from engaging in activities on be-
half of the Union at any time on Respondent's premises;
promising its employees a wage increase if they refrain
from joining or engaging in activities on behalf of the
Union; soliciting its employees to withdraw their mem-
bership in the Union; threatening its employees with
discharge if they made mention of the Union or the sign-
ing of an authorization card for the Union; and dis-
couraging an employee from honoring a subpena of the
Board which had been duly served.
2. Whether, subsequent to the August 13, 1964,12
settlement agreement, the Respondent unlawfully failed
to offer Earl Calbaugh a job for which he was qualified in
violation of Section 8(a)(3) of the Act.
3. Whether the Respondent violated Section 8(a)(3) of
the Act by discriminatorily discharging and refusing to
reemploy the following employees: James W. McMillian,
Jean Ella Potter, Doris Smith, Bobby Ray Cox, Erma
June Keylon, Burton Eugene Yates, Noreen Nash,
Charles Wayne Porter, Stewart E. Calbaugh, James Buck
Reel, Vaughn Hensley, William C. Pelfrey, Ronnie Pat-
ton, Calvin Creekmore, Mary Frances Bowen, Kenneth
Toole, Shirley Shaver Wilkey, Peggy Wright, Bobbie Sue
Dunn, Betty Stout, Garland Stinnett, Robert Allen
Smith, James W. Suttles, Conway G. Ballard, Hubert D.
Keith, and Euel Robert Tate.
4. Whether the Respondent violated Section 8(a)(3)
and (4) of the Act by discharging and refusing to reinstate
Shirley Fugate, Kenneth Lee Hughes, and Frances Hill.
C. Background and Preliminary Alleged 8(a)(1)
Violations13
Kayser-Roth's Dayton plant, as it exists today, is made
up of two former independent and geographically
separated hosiery mills, one, the Dayton Hosiery Mill,
and the other, the Graysville Hosiery Mill. With the
acquisition of the Graysville Mill in 1955, Kayser-Roth
converted the Graysville plant into a greige goods or
knitting operation, transferring the finishing operations to
the Dayton plant, and similarly, changed its Dayton plant
into strictly a finishing operation, transferring its knitting
operation to the Graysville plant. Thus, until 1964, the
two plants operated in this manner, with the greige goods
from the Graysville plant being carried across town to the
Dayton plant for finishing. In March 1964, with the
completion of construction of new facilities at the Dayton
plant, which more than doubled the existing space, the
two plants were physically consolidated at the one loca-
tion, with the old Graysville structure maintained as a
warehouse.
Structurally, Kayser-Roth's Dayton Division, which
manufactures exclusively tights (leotards) and children's
hose is headed by a general superintendent, who is
assisted by superintendents of the two divisions, the
knitting division and the finishing division. The knitting
division, employing approximately 300 employees, is
made up of a knitting department operating on three
shifts, a sewing department, and a toe seaming and in-
specting department.14 The finishing division, with ap-
proximately 220 employees, is comprised of a boarding
department running on three shifts, a dye department
operating two shifts, a pairing department, a longfold de-
partment, a folding department, and a shipping depart-
ment.
The completion of the new facility, and the moving of
the knitting division into the new plant, coincided with the
initial leaflet distribution on March 17, commencing the
Union's organizational campaign among the Respond-
ent's 520 employees. Within a few days thereafter, Car-
lysle Isley, vice president in charge of public and industri-
al relations, headquartered in Burlington, North Carolina,
made a trip to Dayton for the express purpose of formally
discussing with plant supervision the necessity of a
uniform application of plant rules and the company policy
with respect thereto,15 and the effect of the Union's or-
ganizing efforts on supervision. On or about March 20,
Isley met with all of the Dayton plant supervisors. At this
meeting, Isley discussed the plant rules, rules which had
been in effect without revision for some 18 years, and the
need to enforce them. 16 The latter part of the meeting ap-
pears to have been devoted to a discussion of the impact
of the Union on these rules and of the union activity
generally in its relation with the supervisors. In this re-
gard, Isley testified that he told the gathered supervisors
that inasmuch as leaflets had been distributed to the em-
ployees, they should be careful of their comments in re-
gard to unionism and further testified that he talked to
them as follows:
I mentioned that the union leaflets had been
passed out to our employees here in Dayton and that
our supervisors should be on guard as to their dealing
with the employees. I suggested or I told them that
we should apply our plant rules and company poli-
cies uniformly to everybody regardless of whether
they indicated they were interested in the Union or
not. I stated that under no condition could any super-
visor question or interrogate any of the employees
12 All unspecified dates refer to the year 1964, except where otherwise
obvious.
13 Sec. 8(a)(1) of the Act reads as follows:
Sec. 8. (a) It shall be an unfair labor practice for an employer-
(1) to interfere with, restrain, or coerce employees in the exercise
of the rights guaranteed in Section 7; ...
Section 7 of the Act reads as follows:
Sec 7. Employees shall have the right to self-organization, to form,
loin, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other mu-
tual aid or protection, and shall also have the right to refrain from any
or all of such activities except to the extent that such right may be af-
fected by an agreement requiring membership in a labor organization
as a condition of employment as authorized in section 8(a)(3).
14 At times material to this proceeding, there existed a greige depart-
ment as well.
is As hereinafter noted the record amply demonstrates that such a trip
at this time was operationally feasible.
16 I find that at this time no new plant rules were established and that, to
the extent that some record testimony would indicate the contrary, it per-
haps was based on a confusion created by the fact that shortly after the
meeting, Isley sent back to Dayton some new, but identical, posters to
replace the old and faded ones on the old bulletin boards and on the new
ones in the new part of the plant. A copy of these rules is attached and
marked "Appendix B."
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under his supervision. I told them that they should
not spy on union activities. I told them that they
could not threaten any employee with discharge
because of union activities. That they could not
promise to reward any employees for spying on the
Union and that the supervisors were supposed to do
their job just as if there were not any union trying to
get into the plant.
Isley further testified that he told them "that a person
could be discharged whether he was a member of the
Union or not if he broke plant rules." He went on to in-
struct them not to initiate conversations with employees
concerning the Union and not to inquire as to whether
they or others belonged to the Union, but if they were ap-
proached by employees and asked, they could express
their own opinion and could tell them that they were op-
posed to it. Isley apprised the supervisors "that em-
ployees are not permitted to carry on union activities to
the extent that they were neglecting their own job or in-
terfering with others in performing their job."
The above findings are based upon Isley's credited
testimony, which for the most part is corroborated by Su-
pervisors Robert Wilkey and Wendell Borne and by Divi-
sion Superintendent Everett Roberson. On direct ex-
amination, Wilkey testified on behalf of the General
Counsel that "I believe that the main subject was that
there would not be allowed to be any union activities on
the job."17 Although admitting that on this occasion Isley
told them not to interrogate or threaten employees, that
there would be no union activities on the job while an em-
ployee was doing his job, that there was to be no interfer-
ing with the work of others, and that union employees and
nonunion employees were to be treated just alike, Wilkey
testified that they wanted the supervisors to "work along
with them on the thing and to try to keep them informed
of any activities that were taken [sic] place, things like
that." As this quoted portion of Wilkey's testimony is not
specifically attributed to any named person, and in view
of my credibility findings hereafter as to Wilkey and of
Roberson's denial that this was said or implied, I find that
it does not accurately reflect the true fact. The General
Counsel called as its witness, Wendell Borne, supervisor
of the dye department, who had also been active in the
Union, had been discharged, and subsequently reinstated
pursuant to the settlement agreement in August. Borne,
corroborating Isley, testified that at this meeting Isley
told the supervisors in answer to questions that they
should treat everybody the same, that the employees who
signed union cards did not have any special privileges
over those who did not sign cards, and that a union em-
ployee could be discharged for breaking company rules
just like any other employee. Isley told them that em-
ployees could not be fired for union activities. 18
In support of the complaint allegation that the Respond-
ent in April instituted a hiring practice to discriminate
against employees who were union adherents, the
General Counsel elicited from Robert Wilkey, a former
supervisor later transferred to a nonsupervisory position
at his own request, testimony to the effect that about the
first of June, Kenneth Queen, the assistant general su-
perintendent of the Seamless Division from Burlington,
North Carolina, called Supervisors Charlie Kelley and
Roy Stinnett, and him, into an office and told them that
"the main ones that held on to the Union and wouldn't
give up and kept on working for the Union that he wants
some discharges on those, and he did call some names."
Wilkey could recall only the names of Woodrow Tumlin,
Guyman Hill, and Mayford Daniels. After a leading
question in which the words "twisted toe" were used,
Wilkey remembered that Queen also said, "To find a
twisted toe or heel, something wrong with the work and
discharge them for it."
Neither Charlie Kelley nor Roy Stinnett were
questioned by either party as to this conversation.19
Queen, who was placed on the witness stand by the
Respondent soley for the purpose of testifying as to this
matter, denied on direct and on cross-examination that he
at any time told Robert Wilkey or any supervisor that he
wanted or expected specific individuals discharged or
that he, in any form, told supervisors that he wanted
discharges.
I do not credit Wilkey as to these instructions at-
tributed to Queen. In the first place, Wilkey, who was
evasive and at times vague, did not impress me as being
particularly truthful on the witness stand, having reversed
himself several times on minor aspects of his testimony.
Whereas Queen, although on the stand only briefly, gave
the appearance of candor. It should also be noted that,
with one isolated and nonalleged exception, the record
contains absolutely no credible evidence of antiunion
animus on the part of Queen, and no other evidence that
he in any way became involved with union matters, ac-
tions, or conversations in the Dayton plant. Secondly,
Wilkey's testimony to the effect that because of this he
asked for a transfer to a nonsupervisory job which sub-
sequently was granted is likewise not supported by credi-
ble record evidence. In fact, at one point, Wilkey ad-
mitted that he askedto be transferred because in his own
opinion he was not a supervisor. Finally, the record
reveals that among a number of known union leaders still
working in the plant without interruption are Woodrow
Tumlin, Guyman Hill, and Mayford Daniels, the three
mentioned in Wilkey's testimony. I shall recommend that
this portion of the complaint be dismissed, and hereby
take particular notice of this finding as it would otherwise
affect the 8(a)(3) issues hereinafter discussed.
17 In view of the italicized portion of this quotation, I find that this
evidence does not, to the extent that it was so intended, support par 19 of
the complaint alleging as violative of the Act the institution of a rule
prohibiting employees from engaging in Union activities at any time on
Respondent's premises.
's Borne's testimony, however, is weakened by the fact that his
testimony on a crucial point differs from that which he had set forth in his
pretrial affidavit. Thus, in his affidavit he stated that Isley "said all appli-
cations for jobs would be from then on be handled so that the applicants
whole history could be checked so that the company could know, they
could not have anything- they would not have anything to do with a
union." On the stand, Borne testified that he believed that Isley said "the
applications would be made through the office and the supervisors would
select the applications they wanted to use." Without minimizing the effect
of this, I must state that in watching Borne while testifying, I felt that he
appeared to be a most reliable and honest witness. While this discrepancy
goes only to the credibility of the witness, and not to the truth of the
matter, nevertheless, Isley was questioned on this and denied telling the
supervisors that the job applications would have to be screened carefully
in order that the Company could be sure that new employees would not be
in favor of the Union
' 9 Charlie Kelley, who was ill, testified in this proceeding only briefly as
to one incident, and did so from a hospital bed-just before the close of the
hearing. Stinnett, on the other hand, testified at length to a number of mat
ters.
KAYSER-ROTH HOSIERY CO. 377
While, as hereinafter found, the Respondent through its
supervisors did engage in interrogation, threats, surveil-
lance, and unlawful conduct generally during the months
immediately following the advent of the Union, as well as
in discriminatory termination of employees, contrary to
the view of General Counsel, 1 find neither directive nor
justification for such conduct in either of the two super-
visor meetings referred to above, and to the extent that
complaint allegations may be predicated thereon, I find
them to be without merit.
This is not to say that the Respondent, officially and
otherwise, did not strongly oppose the Union and its ac-
tivity among the plant employees, for it did. The Respond-
ent, early in the Union's campaign, made it clear to all of
its employees that it was opposed to the Union and in-
tended to take all proper means to prevent its successful
organization in the plant. A notice addressed to all em-
ployees, articulately setting forth its position, was posted
on the bulletin boards and, under a covering letter, sent to
each employee.20 Simultaneously with the documented
opposition to the Union as registered by the Respondent,
the Union, between April 10 and May 12, held some 10
or 11 meetings attended by plant' employees at various
places in the Dayton area. At the same time, some 83 em-
ployees became signatory to four form "letters" prepared
by the Union on various dates in April, and subsequently
sent in three mailings by certified mail to the Respondent
placing the latter on notice that said employees had
signed union authorization cards, were members of the
Union, and were actively participating in a campaign to
organize the plant for the purpose of collective bargain-
ing.21 The purpose of preparing these union letters, as
stated by counsel for Charging Party "was so that the
company could not subsequently deny that they knew
these people were engaged in union activity." Upon
receipt of the first such union letter, the record does not
indicate with respect to the others, the Respondent
replied by mail to each employee named therein,
acknowledging receipt of the union letter, and apprising
him that his having signed with the Union gave him no im-
munity of any sort or any preference over other em-
ployees, and that he would be expected to perform his job
as fully as anyone else if he wished to remain with the
Company.22
According to Isley, his instructions with respect to the
enforcement of plant rules and increasing efficiency in the
finishing department were not carried out.23 Accordingly,
in the months following his visit to Dayton, a large
number of managerial changes were made in the Dayton
plant operation, from the top to the bottom. This gradual
elimination process was effectuated because of gross inef-
ficiency on the part of those responsible. Thus, Elmer
Kelley, who, as vice president and general manager, was
the highest company official in Dayton, was retired by the
Company on August 11; Leon Young, the general su-
perintendent, was relieved of his duties sometime during
the early summer and separated from the Company on
September 25; Freeman Looney, finishing division su-
perintendent, was relieved of his duties on July 31, and
replaced by Earl Barger on August 4;24 Charlie Kelley,
first-shift boarding room supervisor, was relieved of his
supervisory functions and demoted to a shipping clerk on
November 13; Robert Wilkey, second-shift boarding
room supervisor, was relieved of his supervisory status
and moved to "tights bagger" on October 5; Bud Young,
shipping department supervisor, was demoted to a
shipping clerk on January 18, 1965; and Parker Bean, su-
pervisor of the greige department, was relieved of his su-
pervisory functions on November 4, and moved to the
warehouse.25 With the exception of former Finishing
Division Superintendent Earl Barger, none of those offi-
cials whose employment with the Respondent was sub-
sequently terminated was called upon to testify in this
proceeding.
D. Alleged Violations of Section 8(a)(1)
1. Surveillance
As part of the Union's organizational campaign during
the spring of 1964, the Union held 10 or 11 meetings
which were attended by employees of the Respondent.
These meetings were held in public places, and out-of-
doors. Undisputed record -evidence reveals that on a
number of such occasions a company official was present
in the general area at one time or another and was wit-
nessed by employees so attending. Thus, the question
posed is whether, in each instance, the official or super-
visor was there for the purpose of engaging in surveil-
lance of the union activities of employees.
a. March 19- Walnut Grove Church
Employee Robert Smith, one of the alleged dis-
criminatees herein, testified that "about March 19, it was
in March," while attending a union meeting outside the
Walnut Grove Church, attended by some 25 to 30 em-
ployees, he saw Leon Young and Kenneth Queen, a com-
pany official headquartered in Burlington, North
Carolina, pass by, doing about 35 miles per hour. The
Walnut Grove Church is located directly beside Highway
27 traveling north and south and close to the county
hospital, and at this point commands a 45-mile per hour
speed limit. First, because there is no corroboration of
Smith's testimony in this regard;26 secondly, as the
evidence reveals that the first union meeting of Respond-
ent's employees was not held until April 10, and the first
Walnut Grove meeting until April 16; and thirdly, in view
of Smith's changing his testimony from having seen
Queen "looking at us" to "he was looking straight ahead"
20 A copy of the notice, G.C. Exh. 6-B, is attached and marked "Ap-
pendix C."
21 For the sake of uniformity as well as transcript conformity, these
documents hereinafter will be referred to simply as "union letters."
22 This was not asserted as a violation and a copy of the letter was in-
troduced into evidence solely to show company knowledge of union ac-
tivity on the part of certain employees.
23 Isley's testimony that the plant continued to operate around 75 per-
cent of normal efficiency is not refuted.
24 Earl Barger subsequently left the Respondent 's employ on April 21,
1965, and was replaced by Bill Ewing.
25 Among other changes, Cecil Housley, third-shift knitting department
supervisor, quit his employment with the Company on August 16.
Because of the tremendous turnover in the Company 's management and
supervision , for the purpose of simplicity in discussing any particular in-
cident or event throughout this decision, the person involved will normally
be referred to by the title or position held by him at the time of the in-
cident.
26 Nor, admittedly, is there refutation, for Young did not testify and
Queen, only as to one incident.
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as they drove by,27 I do not credit Smith's testimony as to
this incident and, accordingly, find that it did not occur.
b. April 10- Wolf Creek School
Employee Guyman Hill, a union leader , credibly
testified that he attended this Wolf Creek meeting, which
the record discloses as being the firstheld among Respond-
ent's employees, that it was held out-of-doors beside the
schoolhouse, and that it was attended by some 16 of
Respondent's employees. While in attendance, he saw
Ann Thurman28 and employee Dianne Garrison twice
drive by the meeting place, turn around and come back.
According to Hill, the black top country road was some
50 to 70 yards from the meeting place, and Thurman was
traveling at an estimated 30-35 miles per hour.
Employee Finley Fugate testified that on this occasion,
just before arriving at the meeting with his wife, he saw
Ann Thurman, with a second person , sitting in an au-
tomobile at a drive-in restaurant. After stopping at the
drive-in for something to drink, Fugate went to the meet-
ing. Sometime later he saw Ann Thurman drive by, turn
around, and drive back again . She repeated this some 25
minutes later. Fugate's testimony differs from Hill's only
to the extent that he recalled but 10 employees in at-
tendance and that he estimated the distance from the road
to the school about 150 yards. Employee Francis Hill
corroborated the testimony of Guyman Hill and of Fu-
gate, and added that the drive-in could be seen from the
meeting place.
Finally with respect to this incident, Ann Garrison, a
sewing department employee who customarily rode to
and from work with Ann Thurman, testified that on the
day in question, while riding home to Spring City after
work, Thurman told her that it was important that she be
at Spring City at 4:30 p.m. because "they were going to
have the union meeting at the Wolf Creek Schoolhouse
and that she was going to be over there." According to
the undisputed testimony of Garrison, they stopped to eat
at the drive-in across the road from the schoolhouse
where they "watched the cars go into the schoolhouse."
As the cars passed containing employees whom she
knew, Thurman wrote down their names, asking Garrison
for assistance in identifying the employees. Garrison
testified to thereafter making but one trip down and back
past the schoolhouse. It is also apparent from her
testimony that the Wolf Creek School is 2 or 3 miles off
of their usual Route 27 to Spring City.29 These facts,
beyond question , compel a finding that on this occasion
Ann,Thurman was engaged in the most flagrant kind of
surveillance. Accordingly, I find that the Respondent,
responsible for the conduct of its agent, thereby violated
Section 8 (a)(1) of the Act.
c. April 11- Rattan Bridge
On Saturday morning, April 1 l , the second meeting of
employees was held out-of-doors at Rattan Bridge, a
24 Smith admitted on cross-examination that , after signing his pretrial
affidavit he later went back and changed it in the same manner that he
changed his testimony on the witness stand.
28 Although the parties were unable to agree as to the supervisory status
or lack thereof of Ann Thurman, they did stipulate that, for the purpose of
this proceeding only and as to the April 10 Wolf Creek School incident
only, Thurman was an agent of the Respondent
public place located adjacent to a county road. According
to the testimony of a number of employees,30 Supervisor
Cecil Housley drove by while the meeting was in
progress. Toole testified that approximately 30 to 40 em-
ployees were in attendance and that Housley's rate of
speed was less than normal. Bowman testified that ap-
proximately 25 to 30 employees were present, that
Housley's rate of speed was less than normal, approxi-
mately 20 m.p.h. Bowman, on cross-examination, ad-
mitted that Housley lived in the Rattan community and
that, in going to visit Housley, which he did on occasion
to go hunting with him, one would come over the Rattan
Bridge. On these facts alone, including the absence of
evidence that Housley ever saw or looked toward the em-
ployee group, I am not prepared to draw an inference that
Housley drove past the area for the purpose of surveil-
lance or that he was so engaged. I find the incident not to
constitute unlawful conduct.
d. April 16 - Rattan Bridge
Doris Smith, an alleged discriminatee and a credible
witness, testified that, while attending a union outdoor
meeting with some 25 to 30 other employees at Rattan
Bridge sometime in April, which I find to have been April
16, she saw Plant General Manager Leon Young drive by
very slowly. According to Smith, a few minutes later
Young drove back over the bridge, which was some 70
yards away, glancing in the direction of the employees as
he went by. Young, no longer an official of, or employed
by, the Company, did not testify. Accordingly, Smith's
testimony, although not corroborated, is not refuted. As
I was impressed with her candor and found her to be a
most credible witness, notwithstanding a lack of cor-
roboration by others who may have been in attendance,
I credit her testimony in this regard. I find these facts to
warrant an inference of unlawful motive on the part of
Young. I find that on this occasion Young was engaged in
surveillance and, accordingly, that the Respondent vio-
lated Section 8(a)(1) of the Act.
e. April 23 -Rattan Bridge
Noah Wright testified that 2 or 3 weeks after the April
11 union meeting , while attending another union meeting
at Rattan Bridge, which I find took place on April 23, Su-
pervisor Cecil Housley again drove by the employee
meeting. For the same reasons heretofore expressed with
respect to the April 11 meeting at Rattan Bridge, I find
this evidence, even when considered with the evidence of
the earlier meeting, insufficient to support an inference of
surveillance on the part of Housley.
f. May 12 - Rattan Bridge
Two union meetings were held on May 12, the first, a
morning meeting for second- and third-shift employees at
Rattan Bridge, the second, an afternoon meeting for first-
21 Ann Thurman did not testify in this proceeding. Accordingly, the
testimony of Guyman and Francis Hill, and of Finley Fugate and Dianne
Garrison is unrefuted.
30 Glenn Keylon, Noah Wright, Kenneth Toole , William Bowman, and
Roy DeVault.
KAYSER-ROTH HOSIERY CO. 379
shift employees at Walnut Grove Church. As to the
former, employee Samuel Barley credibly testified that on
Friday before the May 12 scheduled meeting at Rattan
Bridge he asked Supervisor Troy Ward, whom he knew
to fish frequently at Rattan Bridge, if he had been fishing,
and then suggested that he not go the next morning.
Glenn Keylon testified that on this occasion he overheard
Barley tell Ward that they were to have a union meeting,
and that Ward said that he had planned to do some fishing
and that he could do it there. At this, according to
Keylon, Barley told Ward that he was telling him this
because he was not invited. Ward admitted telling Barley
that "as long as I have a license I would fish when I get
ready." The following morning, Ward fished from Rattan
Bridge, which is about 10 feet wide, between 8:30 and
10:30 a.m. when he quit because the fish stopped biting.
Some 15 or 20 minutes before he left, employees started
gathering for the meeting, some of whom drove across the
bridge within a few feet of where Ward was doing his fish-
ing. The meeting place was approximately 125 yards,
with a clear vision, from the bridge. Ward admitted hav-
ing been made aware of the scheduled union meeting in
that vicinity when he set out to fish that morning. Not-
withstanding the fact that Ward, a rabid fisherman who
frequently chose Rattan Bridge, might well have fished
there that particular morning whether or not there had
been a union meeting held, I find that, under these cir-
cumstances, Ward's action constitutes surveillance of
union activities within the proscription of Section 8(a)(1)
of the Act, and that his statement to Barley of the Friday
before, in context, constitutes -a threat to engage in sur-
veillance of an employee union meeting, also within the
meaning of Section 8(a)(1).31
g. May 12 - Walnut Grove Church
Noah Wright testified that, while attending the May 12
afternoon meeting outside the Walnut Grove Church at
which some 30 to 40 employees were present, he saw Su-
pervisor Ralph Mayes, accompanied by someone he
knew only as Otis, driving north on Highway 27, some 30
yards away. Approximately 15 minutes later, or around
4:30 p.m., Wright saw Everett Roberson also driving
north on Highway 27. Ten to fifteen minutes later Su-
perintendent Roberson was seen by Wright driving south
on the highway. According to Wright, Mayes seemed to
be driving at a normal rate of speed, which because of the
hospital nearby appears to have been 45 m.p.h., and
Roberson much slower. Mayes was not questioned on
this matter. Everett Roberson, however, testified that on
this occasion, while on the way to his brother's house at
Oak Hill, he noticed a group of people gathered outside
the little church, some 40 feet from the highway and that
he recognized a few who worked at the plant. According
to Roberson, he drove on up to a truck stop, turned
around, came back past the church, where again he
noticed the people assembled in the churchyard, and
"went on about my business." Roberson testified that,
although he did not know what it was all about, he con-
cluded afterwards that it might have been a union meet-
ing. On cross-examination Roberson admitted that he
turned around and went back "to see what it was," and,
apparently recognizing Union Representative Ted
Benton , "figured by then that it was a union meeting."
I find these facts insufficient to establish surveillance
on the part of Supervisor Mayes. With respect to Rober-
son, however , although I associate no connection
between his trip and that of Mayes some few minutes
earlier , I am of the opinion that he accidentally stumbled
on the employee meeting and that curiosity caused him to
explore further. I conclude that, in slowly driving back
past the union meeting , Roberson technically engaged in
surveillance within the meaning of Section 8(a)(1) of the
Act.
2. Threats of serious harm
The complaint in paragraph 13 alleges that the
"Respondent, on or about April 20, 1964, in a notice to
its employees posted at its plant and mailed to its em-
ployees ... threatened its employees in and about the
vicinity of its plant that they would suffer serious harm if
they joined or engaged in activities on behalf of the
Union." This allegation has reference to the first num-
bered paragraph of the notice posted on the bulletin
boards and mailed to employees, attached hereto as Ap-
pendix C. This provision reads as follows:
(1) This matter is, of course, one of concern to the
company. It is also, however, a matter of serious
concern to you and our sincere belief is that if this
union were to get in here, it would not work to your
benefit but, in the long run, would itself operate to
your serious harm.
Counsel for the General Counsel, however, made it
very clear, in reply to my inquiry, that the notice itself
was not asserted as a violation of the Act, but was sub-
mitted into evidence solely "to show the animosity of the
Respondent towards unionization and to show what the
rules were of the Respondent in reference to what activi-
ties might be carried on in the plant and when, as far as or-
ganizational efforts." The Board, in a contemporary
Kayser-Roth case32 involving the Burlington, North
Carolina, plant, and issued since the hearing in this
proceeding closed, found it unnecessary to pass upon the
legality of this same provision of the same notice standing
alone,33 but did so on the ground that, because of other
unlawful conduct and particularly a personal reference to
the notice provision to employees, the notice as a whole
"was calculated to and had the effect of restraining and
coercing employees in the exercise of Section 7 rights."
While technically, perhaps, the issue was not litigated
herein, I deem myself bound by the Board's decision
therein and find that the notice, containing the first num-
bered paragraph referred to above, had the effect of
restraining and coercing Respondent's employees, and
therefore constitutes 4 violation of Section 8(a)(1) of the
ACt.34
31 Neither my findings of fact nor my conclusions of law as to this in-
cident is predicated in any way upon the discredited and worthless
testimony of James Hall.
33 Kayser-Roth Hosiery Co, Inc., 158 NLRB 28.
a3 But for a very few word changes, and nothing changing the import,
the notices are identical.
34 C£ Jackson Co., Division of Sumner Williams, Inc., 160 NLRB
1781, where, in an objections to election case, the Board held that, in the
absence of other objectionable conduct, a similar statement published in
a letter to the Company's employees did not have any substantial impact
on the employees' freedom of choice in a forthcoming election.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Violations supported by the testimony of James Hall
James Hall, one of the company employees who was
called by, and testified on behalf of, the General Counsel,
testified at length with respect to all phases of the General
Counsel's case. In addition to a number of alleged union
conversations with company officials Troy Ward and
Everett Roberson, Hall testified to matters relating to the
employee practice of removing hose from the plant.35
During the many hours that Hall appeared on the witness
stand, he testified in a most unconvincing manner. Apart
from evasive and dilatory tactics and generalizations,
time after time, Hall, even on direct examination, repu-
diated his own testimony, and at times his testimony
became absolutely incredible . Thus, initially , in response
to the General Counsel's question as to how many socks
he received and took from the plant during his 2 years of
employment, Hall replied, "several pair." As his
testimony progressed , all on direct examination , this esti-
mate was upped to 10 to 15 dozen, then to "twenty-five
dozen altogether," and finally, to 600 pair, or 50 dozen.
Hall's affidavit conceded that this figure might have been
as high as 75 dozen , Later in his testimony , Hall stated
that he had not taken any socks during the past year, but
that he still had at home two dresser drawers filled with
socks from the plant. At another point on direct examina-
tion , Hall testified that he never heard of anybody being
discharged for talking except Ronnie Patton , one of the
alleged discriminatees herein . On cross-examination he
reiterated this, and then admitted that his own mother had
been discharged for talking the prior April and that he had
been told by Roberson that she had been discharged for
talking. Even the General Counsel was surprised at
Hall's testimony , for, on redirect examination for the first
time, Hall testified at length to a number of conversations
with Roberson allegedly having taken place right up to
the November 18 election . In fact , Hall testified
generally that Roberson talked to him about the Union
everyday or every other day from the time of his mother's
April discharge until 2 or 3 weeks before the November
18 election. Not only did the General Counsel indicate
that he knew nothing about the later conversations before
Hall took the witness stand, which, if believed, admit-
tedly would be most damaging to the Respondent's case,
Hall in his second pretrial affidavit taken on the 21 st day
of October made no mention of these later conversations
with Roberson. Had they, in fact, taken place as testified
to by Hall, in view of Hall 's extreme prounion senti-
ments, it is completely unexplainable why he had not set
them forth in his affidavit taken at the time they allegedly
were taking place or later apprised counsel for the
General Counsel as to such conduct. While Ward and
Roberson both admitted to talking with Hall from time to
time concerning the Union , as well as with other em-
ployees, and while not questioning the fact that some of
that which Hall testified to undoubtedly was a fact or
took place, the difficulty is that on the record it is next to
impossible to determine what is true and what is not.
Based upon my close observation of his demeanor during
his lengthy testimony on the witness stand, his evasive
and exasperating manner in answering questions of coun-
sel, including his own counsel as well as those asked by
31 Four of the alleged discrimmatees herein were discharged assertedly
for stealing socks.
36 In view of the above , I shall recommend that all complaint allegations
which are supported only by Hall's testimony , including the amendment
me, coupled with the numerous inconsistencies and repu-
diations in his testimony , I find Hall to have been a most
dishonest witness and one in whom I can place no faith as
to veracity or respect . I consider his testimony, all phases
of it, to be totally unreliable and absolutely worthless,
and, accordingly, have not, in any way, in making my
findings of fact or conclusions of law herein, relied upon
or even considered his testimony.36
4. The Alveida Harris subpena incident
During the course of the hearing and toward the close
of the General Counsel's case an incident occurred which
subsequently resulted in my granting the General Coun-
sel's motion to amend the 8(a)(1) allegations of the com-
plaint. Employee Alveida Harris, who was under subpena
to testify for the General Counsel, after several days of
sitting in the courtroom early in the proceeding, asked
and received permission from the counsel for the General
Counsel to go back to work , subject to being called again
when needed . On Wednesday afternoon, June 4, Harris,
having been apprised by her floorlady, Rhoda Housley,
that she was wanted at the courthouse, and desiring not
to appear, "told her (Housley) to call and ask if a doctor's
excuse would excuse me." According to Harris' further
testimony, Housley came back and told her "that I didn't
have to come." Notwithstanding this, Harris left the plant
and went by the jail, where, in answer to her question, she
was told that she could be fired and put in jail if she did
not honor her subpena.
Harris left the jail and went to the courthouse where
she asked to speak to Everett Roberson . Roberson was
informed of this just before the hearing was momentarily
recessed . Roberson , in a brief conversation with Harris
in the downstairs hall, was apprised by Harris as to what
she had been told at the jail, and asked by Harris if it were
true that she could be fined or put in jail for not honoring
a subpena. Roberson 's answer , crucial as it is, is in
dispute. Thus, Roberson testified that he told her, "Al-
veida, I don't think that's right," and that just then people
were entering the hall from the courtroom and Harris left.
Harris testified, when initially asked by the General
Counsel, that Roberson said "I could go." When
questioned by counsel for the Respondent , she initially
testified that she did not understand what Roberson had
said, but that Roberson did tell her that he did not think
she could be fined or jailed for not appearing. On redirect
examination , Harris testified that "he just told me I didn't
have to - wait , he said to go on if I didn 't - I didn't have
to testify or something on that order ." She later testified
that she did not know what else he said because of the
noise in the hall but that "he told me to go. He told me I
could go," and still later , "he just said to get out of here
and go on ." In any event , it is undisputed that the conver-
sation lasted less than 2 minutes and that Harris left the
courthouse immediately thereafter and went home.
She subsequently was called as a witness by the
General Counsel and, in addition to this incident, Harris
testified briefly as to two union conversations, one with
Roberson and the other with Troy Ward, the previous
April.37 At the conclusion of Harris' testimony , over the
objection of counsel for the Respondent , I granted the
granted at the hearing pertaining to Roberson "between October 1, 1964
and November 18, 1964 ," be dismissed.
39 Harris had been discharged in April 1964 , and was subsequently
reinstated pursuant to the terms of the settlement agreement in August.
KAYSER-ROTH HOSIERY CO. 381
General Counsel's motion to amend the 8(a)(1) allega-
tions of the complaint to include the above incidents.38
First, as to Housley's statement to Harris that she did
not have to attend the hearing, in view of the fact that it
was not shown that Housley, who was not questioned on
this matter, was aware that Harris was under subpena, a
vital and necessary requisite, I find without merit the al-
legation as it pertains to Rhoda Housley. As to Roberson,
however, even on his testimony alone, I am of the opinion
that technically he was guilty of discouraging Harris from
honoring a subpena , and so find . In all fairness, however,
I do feel that, under these circumstances, including the
full cooperation extended by Roberson on behalf of the
Respondent to the General Counsel throughout the hear-
ing with respect to the latter's employee witness, and the
fact that Harris, whose extremely brief testimony on be-
half of the General Counsel was confined to two alleged
8(a)(1) incidents , certainly cannot be considered a vital
witness to the General Counsel's overall case, Roberson
did not possess an intent to obstruct the Board's
processes, which, but for this explanation, could well be
inferred from the plain language of the amended allega-
tion.
5. Additional interference, restraint, and coercion
Glenn Earl Keylon, a former fixer employed in the
Respondent's knitting department, testified that a few
days after a union meeting in April at Rattan Bridge,
Knitting Division Superintendent Everett Roberson ap-
proached him at his job. During the rather lengthy discus-
sion , according to Keylon, Roberson asked him if he at-
tended a meeting at Rattan Bridge a few evenings before.
When Keylon replied in the affirmative, Roberson said,
"I never would have thought that of you. Do you feel in
favor of the Union?" When Keylon again replied in the
affirmative, in answer to Roberson's further inquiry,
Keylon discussed with him his reasons for wanting the
Union. During the course of this, Roberson interrupted
to ask, "You mean to tell me that you would take a
chance of putting you and your wife both out on the street
?" Toward the end of the conversation, Roberson
asked Keylon if he did not believe that the Company will
move the mill or shut it down if the Union came in. When
Keylon replied that he did not think so, Roberson told
him that it was something for him to consider and that he
should give it more thought . As Roberson was not specifi-
cally questioned on this, Keylon's testimony stands un-
refuted. I find that Roberson's question to Keylon as to
whether he would take a chance of putting him and his
wife out on the street to constitute a threat of Keylon's
job security, and, as such, a violation of Section 8(a)(1) of
the Act.39 I further find that Roberson's statement to
Keylon on this occasion to the effect that he should give
more thought as to whether the Company will move the
mill or shut it down if the Union came in to be violative of
Section 8(a)(1) of the Act.40
The following evening while on the job, Keylon was
told by Supervisor Troy Ward that Ralph Mayes, first-
shift supervisor of the knitting department, wanted to see
him in his office. Accompanied by Ward, Keylon went to
Mayes' office aand in Ward's presence , Mayes said to
Keylon , "I hear you joined a little union group." When
Keylon replied that he had and in turn was asked whether
he thought that the Union would "do us any good," or
"do us more harm," Keylon replied that he thought the
Union would help the employees. When Keylon, refer-
ring to the company rules on talking, said that things
could not get much rougher and indicating that the Union
was bound to help, Mayes replied, "I don't hardly think
they will ... but it is something for you to think about."
Continuing, Mayes said, "We might all be looking for a
job ... if everybody was out of a job it would be hard for
us all to go back to work some place else." When Keylon
indicated that he understood that but that he still believed
the Union would help, Mayes said that if that is what you
think and really believe, "if it comes in, I hope it helps us
all." In concluding, when Keylon indicated that higher
wages by employees should also result in higher wages
for supervisors, Mayes laughed and said, "Well, I hope
so." Troy Ward, although present, did not enter into the
discussion. As neither Mayes nor Ward testified concern-
ing this incident, Keylon's version is not refuted. I find
that the statement of Mayes, uttered during the instant
conversation, to the effect that "We might all be looking
for a job ... if everybody was out of a job it would be
hard for us all to go back to work some place else," to
constitute a prediction of the loss of jobs if the Union
were to win the election , and as such , under the circum-
stances, a violation of Section 8(a)(1) of the Act.41
Conway Ballard, a boarding room employee, testified
to several union conversations allegedly had with Charlie
Kelley, boarding room supervisor, with Elmer Kelley,
vice president and general manager, and with Kenneth
Queen, assistant general superintendent of the seamless
division. While I have very strong reservations concern-
ing the credibility of this witness generally, the fact
remains that none of the company officials to whom the
statements are attributed testified with respect thereto. In
fact, Charles Kelley testified only briefly from a hospital
bed on one matter alone, Kenneth Queen's testimony was
limited to one alleged incident, and Elmer Kelley, who
was retired from the Company August 11, 1964, did not
testify at all. Accordingly, I credit Ballard's testimony as
to these specific conversations and only as to these con-
versations.
Thus, Ballard testified that about the first of May,
Charlie Kelley walked over to him and asked'him "if I
would go with the Union." When Ballard replied that he
would, and after Kelley registered concern that Ballard
would get involved with the Union, in reply to Ballard's
inquiry, Kelley stated that "he thought it would mess my
chances up of advancing with the Company." I find Kel-
ley's prediction that Ballard's involvement with the
Union would mess up his chances of advancing with the
Company to constitute a violation of Section 8(a)(1) of
the Act.42
38 Thus , par 21 (a) of the complaint reads as follows- 38 Lyon, Incorporated , 145 NLRB 54 , enfd 341 F.2d 301 (C.A. 5)
Respondent, by its supervisors and agents , Floorlady Rhoda Housley 40 Philip Carey Manufacturing Company , 140 NLRB 1103.
and Plant Manager Everett Roberson , on or about June 2, 1965 , 41 Des Moines Foods, Inc., 129 NLRB 890.
discouraged its empolyee , Alveida Harris , from honoring a subpoena 42 Haynes Stellite Company , 136 NLRB 95.
of the National Labor Relations Board which had been duly served
upon that employee.
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A day or two later, Kelley asked Ballard who was for
the Union , to which Ballard replied that he did not know,
and then asked Ballard , "Well, don 't you think if the
Union gets in that the mill will close down ?" to which
Ballard replied that he did not think so. Kelley's question-
ing of Ballard as to which employees were for the Union
constitutes unlawful interrogation within the meaning of
the Act.43 I further find that Kelley's question of Ballard
concerning the mill closing down if the Union gets in war-
rants a finding , under the circumstances , of a coercive in-
ference, and , as such , is violation of Section 8(a)(1) of the
Act.44
Approximately 1 week later, Charlie Kelley again in-
dicated to Ballard that his involvement with the Union
"might hurt my changes of advancement with the Com-
pany." Again , such statement constitutes a violation of
Section 8 (a)(1) of the Act.4e
About 1 week later, Elmer Kelley asked Ballard why
he had anything to do with the Union , and, upon receiving
his reply, continued , "Don't you know that your having
something to do with the Union will hurt you more than
it will help you." Elmer Kelley then stated to Ballard that
"if the Union did come in ... the mill wouldn 't be there
to see how it would affect us ...." When Ballard replied
that that was a chance they would all have to take, Elmer
Kelley asked him if he thought the Union would come in,
to which Ballard replied in the affirmative. Elmer Kelley's
statement to Ballard indicating that his association with
the Union would hurt him is violative of Section 8(a)(1)
of the Act ,46 as is his statement concerning a change in lo-
cation of the mill if the Union were to come in .47
A week or two later , while Ballard was driving Kenneth
Queen to the airport , Queen told Ballard that Elmer Kel-
ley had talked to him about Ballard , at which point Bal-
lard asked whether his signing a union card would hurt his
chances of advancing with the Company. Queen replied
that he did not think so, but wished that Ballard had not
fooled with the Union. As the complaint contains no al-
legation with respect to this incident , I do not find
Queen's reply to constitute a violation.
Noah Wright , a former knitter employed in the Respond-
ent's knitting department , testified that several days
after the initial leaflets were distributed in March, which
would have placed it about March 20, Cecil Housley,
then supervisor of the third shift in the knitting depart-
ment , approached Wright while at his work station, and
asked him how he felt about a union. When Wright replied
that he did not know and queried Housley as to how he
felt, the latter replied that unions are not any good . At this
point , Wright volunteered that unions may be good in
some places but that he felt Kayser-Roth was too big an
industry to organize . Three or four weeks later, placing
the conversation toward the third week in April, Housley
again walked up to Wright and asked him how he felt
about the Union. When Wright replied that he felt the
same way as he had before , and inquired as to whether
someone had told Housley that he was advocating the
Union , Housley replied in the negative . Housley, who
quit the Respondent's employ on August 16, 1964, did
not testify in this proceeding . Therefore Wright's
testimony stands uncontradicted . In view of the sur-
rounding circumstances , including the background of
many other coercive statements and the Respondent's
hostility to the Union during this period , I find Housley's
interrogation of Wright on these two occasions as to how
he -felt-about the Union to constitute unlawful interroga-
tion within the meaning of Section 8(a)(1) of the'Act.48
On April 8, Charlie Kelley asked Guyman Hill, an em-
ployee and one of the union leaders, whether he had
heard about the Union, and, upon receiving an affirmative
reply, queried Hill as to where the union meeting was
going to be held. Hill told him that it was at the Wolf
Creek School . The following day, Charlie Kelley again
approached Guyman Hill , and told Hill that his brother,
Elmer Kelley , told him that " I was needing my job aw-
fully bad and he gave me a job and he wouldn't have
thought I would have done anything like this." On Mon-
day morning , April 20 , after Guyman Hill had the day be-
fore solicited a signature on a union card, Charlie Kelley
apprised Hill of his having heard about the incident, and
said to him "I thought you quit fooling with this Union."
Again , as Charlie Kelley was not questioned as to these
incidents , the testimony of Hill , who impressed me as a
credible person , stands unrefuted . I find that Charlie Kel-
ley's statement to Hill, indicating that Elmer Kelley had
registered concern that Hill had associated himself with
the Union after having been given his job, coupled with
Kelley's statement the following Monday, to the effect
that he thought that Hill had quit fooling with the Union,
to constitute an implied threat to his job security and an
implied warning to cease union activity, respectively. I
find these both to be unlawful interrogation, rendering
Kelley's earlier question of Hill concerning the location
of a union meeting also to be violative of Section 8(a)(1)
of the Act.49
Kenneth Toole, one, of the alleged discriminatees in this
proceeding , testified that on April 20, Everett Roberson
rebuked him for going to the restroom, saying that he
should have gone during his supper period. Roberson
then said, "You think you are able to leave your machine
anytime the Union comes in?," to which Toole replied
that he did as long as he kept his job up . According to
Toole, 3 days later Roberson approached him, asking him
how everything was going in the Union. When Toole said
that he believed that it was getting better every day,
Roberson told him that "union people aren't doing
nothing but telling you people a bunch of lies." Toole
countered with the question, "How do we know that you
are not telling us a bunch of lies ," and stating to Rober-
son, "If you don't think the Union is doing better than the
Company is , what is worrying you ...." Roberson asked
Toole whether he actually believed that the Union could
do better than the Company , and upon receiving an affirm-
ative reply , stated to Toole, "If that's the way you feel,
the rules still apply to you ." For reasons hereinafter ex-
pressed with respect to Toole's veracity , I cannot and do
not credit this man's testimony . Accordingly , and not-
withstanding that Roberson was not questioned on these
43 Tidelands Marine Service , 140 NLRB 288, Mose Franck Heating
and Air Conditioning, 150 NLRB 850
94 See N.L.R B. v. Kingsford, dlbla Kingsford Motor Car Co, 313
F.2d 826 (C A. 6), enfg . as modified 135 NLRB 711.
4' Haynes Stellite Co ., supra.
4' Lyon, Inc., supra
See Wilder Finishing Co, 138 NLRB 1017.
46 N.L R.B . V Flemingsburg Manufacturing Co., 300 F.2d 182 (C.A.
6), enfg. 131 NLRB 492.
49 See Mead's Market, 148 NLRB 383, and The Great Atlantic &
Pacific Tea Co., 150 NLRB 1222
KAYSER-ROTH HOSIERY CO. 383
two conversations and that Toole's testimony with
respect thereto remains unrefuted on the record, I refuse
to make a finding based upon his testimony.
James McMillian, one of the alleged discriminatees
herein, testified that about April 1, Supervisor Cecil
Housley asked him if he were for the Union, to which
McMillian replied that he, was. McMillian further testified
that a week or 10 days later, Cecil Housley, in the
presence of employee Jerry Jones, told him that if anyone
approaches him about the Union he should tell him that
he does not want anything to do with it. In the absence of
any evidence tending to refute Mc vlillian's testimony in
this regard, it is credited. I find Housley's directive to
McMillian to tell anyone who approaches him about the
Union that he did not want anything to do with it to con-
stitute a violation of Section 8(a)(1). This, coming after
Housley's earlier interrogation of McMillian as to his
union sentiments, renders the former question a violation
of Section 8(a)(1) as well.50
Roy DeVault, a fixer in the knitting department,
credibly testified that on Monday, April 13, immediately
following the union meeting on April 11, Everett Rober-
son asked him what he thought about the union meeting,
who told him about the meeting, and whom to get in touch
with to see the union organizers. Having played ignorant
to these matters, DeVault was then told by Roberson that
he did not want him' to get into anything he could not get
out of, that he was in pretty deep, and that he had already
signed a union card. Roberson further stated to DeVault
on this occasion that he should have told him and asked
his advice before attending the union meeting. I find
violative of Section 8(a)(1), Roberson's interrogation of
DeVault on this occasion as to what he thought about the
union meeting, who told him about the union meeting, and
whom to get in touch with to see the union organizers. I
further find violative of the Act, Roberson's statement
that he did not want DeVault to get into anything he
could not get out of, that he was in pretty deep. 51
On Saturday, April 25, the day before a scheduled
union meeting at Frawley's Auction Barn, Everett Rober-
son asked DeVault if he expected a big crowd tomorrow.
Shortly thereafter, Roberson approached DeVault while
he was working on his knitting machine, and asked him
how the Union was doing. When DeVault replied that he
did not know, Roberson asked him if he had stopped
keeping up with the Union. When DeVault assured
Roberson that that was not the case, Roberson stated to
him that if the Union came in the first thing it would ask
for would be more money, and that the Company was
paying all that it could pay then. DeVault asked Rober-
son if he thought the plant would close if the Union came
in and Roberson replied that that was a gamble we would
all have to take, with which DeVault agreed. Roberson
admitted that he talked' with DeVault, as he had with
many employees, about the Union, but that he could not
recall any specific conversation. Roberson denied that he
at any time told DeVauli or implied to him that the plant
would close down, but admitted the possibility that he
could have, had a lot of conversations with employees
about the Union where a closing of the plant was
discussed. I found DeVault a very honest and straightfor-
ward witness and I credit his testimony as to the above
conversations. A perusal of this conversation between
DeVault and Roberson reflects that with one exception
matters expressed by Roberson are protected by Section
8(c) of the Act.52 However, with respect to Roberson's
question of DeVault as to whether he had stopped keep-
ing up with the Union, I find such to be unlawful inter-
rogation and a violation of Section 8(a)(1) of the Act.
Finley Fugate, a boarding room employee, testified
that while working on his machine on April 10, Charlie
Kelley asked him if he had heard anything about the
union meeting, to which Fugate replied in the negative.
Kelley then told him that the union man was crooked, that
if he were Fugate he "wouldn't fool with that ... they
only pay you $1.25 an hour." When Fugate then stated
to Kelley that "I bet they would close the plant down if
the Union came in here," Kelley replied, "Yes, I have an
idea they would," and that the Company would get rough
over that Union. On the following day, April 11, Charlie
Kelley again spoke with Finley Fugate at the latter's
machine, and stated to him that some of the people there
were too old to work under a union, that "the Union
would fire you if you get 45," that the Union would make
you take physicals, and that the Union would pay you
$1.25. Fugate admitted that he "kind of egged it on" and
that he, Fugate, was the one who initiated the matter con-
cerning the closing of the plant. Again, Charlie Kelley did
not testify and Finley Fugate's testimony remains uncon-
tradicted. In context, particularly the fact that Fugate ap-
pears to have been the one interested in continuing the
union discussions, I find such matters expressed by Kel-
ley during these two conversations not to be violative of
Section 8(a)(1) of the Act.
Robert Smith, a preboarder in the boarding room,
testified that about the middle of April, while at his
preboarding machine, Charlie Kelley said to him that he
had noticed that he (Smith) had been going to union
meetings and, further, that if he were Smith he would not
attend them, that the Union "was no count." Smith
further testified that a day or two later; either at the plant
or a local beer joint, Charlie Kelley told him that the
Union would not have to pay over $1.25 if it came in,
and further, that in such event, employees would have to
be examined just like recruits did for the Army. Smith's
testimony is not refuted. I consider Kelley's statement to
Smith, that if he were Smith he would not attend union
meetings, to constitute an implied threat not to engage in
union affairs.53 As to Kelley's statements concerning pay
and examination for employees, I consider these to con-
stitute mere opinion, and as such, not violative of the Act.
Burton Eugene Yates, a knitting department employee,
and one of the alleged discriminatees, testified that just
before the transition from the old mill to the new mill,
which would have placed it in the latter part of March,
Supervisor Cecil Housley approached him while at his
so See Gainesville Publishing Company, 150 NLRB 602; Ripley Manu-
facturing Company, 144 NLRB 1132; and Purity Food Stores, Inc., 150
NLRB 1523.
51 See Mr D's No. 2, Inc., 145 NLRB 1227; American Compressed
Steel Corporation, 146 NLRB 1463; and Moulton Manufacturing Com-
pany, 152 NLRB 196.
12 Sec. 8(c) of the Act reads as follows
(c) The expressing of any views, argument, or opinion, or the dis-
semination thereof, whether in written, printed, graphic, or visual
form, shall not constitute or be evidence of an unfair labor practice
under any of the provisions of this Act, if such expression contains no
threat of reprisal or force or promise of benefit.
53 Radio Industries, Inc, 101 NLRB 912.
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
machine and told him he had heard that the employees
were going to try to get a union, wanting to know whether
this were true. When Yates replied in the affirmative,
Housley told him that "he thought we was messing up,
that what privileges we had would be taken away from us
if the Union came in." Upon reporting to work at 11 p.m.
on Sunday, April 12, following the union meeting on the
Saturday before, Housley approached Yates and asked
him if they had a pretty good crowd at the union meeting.
When Yates replied that they did, Housley asked him if
he had attended, to which Yates replied in the affirmative.
On the following Sunday night, April 19, after another
union meeting the Saturday before, Cecil Housley again
approached Yates, asking him what happened at the
union meeting. The testimony of Yates as to these con-
versations is not contested, and is credited. I find as viola-
tive of Section 8(a)(1) of the Act, Housley's interrogation
of Yates as to whether the employees were going to try to
get a union, whether they had a pretty good crowd at the
union meeting, and whether he attended, and as to what
happened at the union meeting. I further find as violative
of the Act Housley's statement to Yates that he thought
the employees were messing up, and that what privileges
they had would be taken away from them if the Union
came in.54
Yates testified to a fourth conversation with Housley
allegedly having taken place in the smoking booth, and al-
legedly following another Saturday meeting of the Union
at Rattan Bridge about a month later. According to Yates,
during this conversation Housley allegedly asked Yates
about the employee attendance and whether Yates
thought they had enough people signing cards to bring the
Union to a vote. There is no evidence of a Rattan meeting
this late, that is, l month after April 19. I do not credit his
testimony as to this conversation. However, his
testimony as to the three earlier conversations with
Housley is not contested and is credited.
Burton Yates testified further that a few days later,
which would place it somewhere around the latter part of
May, Everett Roberson approached him just prior to the
termination of his third shift, approximately 6:45 am.,
asking him if he had signed a union card and whether he
had actually signed the letter which had been sent to his
office containing signatories of union adherence. After a
further discussion between the two concerning the rela-
tive merits of the Union, Roberson, according to Yates'
testimony, said that it did not make too much difference
about Yates' signing the union card "because I have been
there 3 months and I was there on a 3-month trial and that
I wouldn't be eligible to vote anyway." Roberson then, al-
legedly, stated to Yates that "He didn't have to have a
reason to let me go anytime ... during the 3 months, that
he could let me go at any time." Roberson was not
questioned on this conversation and therefore Yates'
testimony remains uncontradicted. While it is not a per se
violation for a supervisor to question an employee as to
whether the latter signed an authorization card, and con-
ceding further that it is not a per se violation for a super-
visor to discuss the merits of unionism with an employee,
in the context of the expressed opposition to the Union as
reflected by the earlier statements of Roberson, I con-
sider Roberson's reference to Yates' signing a union card,
followed by the statement that he did not have to have a
reason to let Yates go anytime , to constitute a threat of
discharge , and, as such , violative of Section 8(a)(1) of the
Act.55
Employee Betty Stout , another of the alleged dis-
criminatees , testified that on September 24, while work-
ing at her job Third Shift Supervisor Roy Stinnett asked
her if she had been talking to the girls about the Union, to
which she replied that she had not, "but I would be glad
to tell them anything they wanted to know that I knew."
This incident by itself, I find not to constitute a violation
of Section 8(a)(1).
Stout testified that just about every night, off and on,
between July 5 , when the employees came back from
their vacation and August 17, when she went to the
hospital, Roy Stinnett would tell employees while at
supper or taking breaks that they had better leave the
Union alone , that if the Union got in, the Company was
going to close the mill down , and the employees would
not have any jobs. Roy Stinnett was not questioned with
respect to the matters testified to by Stout. I credit
Stout's unrefuted testimony as to the September 24 in-
cident, but , in view of the generality of the July 5 through
August 17 assertions , and the fact that not one of the em-
ployees corroborated her testimony in this regard, cou-
pled with the fact that Stout's testimony generally ap-
pears unreliable , she having repudiated her affidavit, I
find the practice attributed to Stinnett during . July and
August not to have occurred.
Betty Stout further testified that about the first of Au-
gust she had a conversation with Clayton Strictland, a de-
tective employed by Mark Lipman Service, Inc., which
at the time was investigating theft at the Respondent's
plant, and during the conversation , Strictland asked her
if she had joined the Union . She allegedly replied that she
had and he then asked her if she knew anybody else who
had. Stout could not recall what her reply, if any, was.
Apart from the fact that the interrogation attributed to
Strictland about the first of August is not alleged in the
complaint , and notwithstanding the fact that Strictland,
for reasons hereinafter expressed , did not testify in this
proceeding , I do not believe Stout's testimony in this re-
gard and refuse to give it credence.
Charles Fugate , a former knitter employed in the
knitting department '56 who appears to have been a strong
advocate of the Union , testified that about 3 weeks before
his discharge, which would have placed it about April 3,
Everett Roberson asked him what he thought about the
Union. When Fugate replied that he had not thought
much about it , Roberson said, "You must have, you
signed a card." Roberson then asked him how the Union
was going to help him , to which Fugate complained about
sweeping the floor and not getting paid for it. According
to Fugate, Roberson also said that "We can say this is
women's work and put women to do the knitting," to
which Fugate replied that in that case, the Company
would have to give him a job elsewhere . Fugate further
testified that Roberson told him that this was a big com-
pany and that it would close down before the Union will
come in here. Roberson further allegedly said that the
Company had a mill in Puerto Rico and that it may send
Fugate there . Roberson denied making the statement
54 Purity Food Stores, Inc, supra. See also Hans J Hvide, et al., dlbla
Port Everglades Towing Co., Ltd., et al., 134 NLRB 795.
15 Universal Packing & Gasket, 151 NLRB 1528, and Almeida Bus
Lines, Inc, 140 NLRB 280.
sc Fugate, who is frequently referred to on the record as Pee Ronnie,
was discharged on April 24. Pursuant to the terms of the August settle-
ment agreement, he was made whole by the Respondent with the payment
of $ 600.
KAYSER-ROTH HOSIERY CO. 385
concerning women's work and women doing the knitting,
but was not specifically questioned about the rest of the
conversation . I credit Fugate 's testimony here. I construe
Roberson ' s statement that the Company could put
women to do the knitting to be a threat of job loss , and his
statement that the Company would close down before the
Union will come in, as a threat, each of which constitutes
a violation of Section 8(a)(1) of the Act.
Fugate further testified that 3 or 4 days later at the local
poolroom, Supervisor Troy Ward told him that this was
a big company , that the Union was not coming in there.
Ward told him that the Company could knock it off their
income tax before they would let the Union come in.
When Fugate protested that the Company had just moved
into a new building and for that reason would not close it
down, Ward said that , "We will close it down ... that he
wasn't worried about a job for himself ." Ward said he
could get another job but that Fugate would be out of a
job. Fugate testified that a day or two later at the poolhall
Troy Ward again told him if the Union got in there they
would close the mill down , and that Fugate would be out
of a job and that he had better think about it. Fugate
testified that 2 or 3 days later , Ward , again at the poolhall,
told him that the mill would close down and wanted to
know what Fugate was doing. As to the above statements
by Ward, even if the poolroom union discussions were ini-
tiated by Fugate , such would only permit Ward to offer
his opinions and would not provide him with the right to
make statements which constitute threats or coercion. I
find Ward 's statements to Fugate concerning the closing
of the mill if the Union were successful , that Fugate
would be out of a job, and that he had better think about
it, as threats , clearly violative of Section 8(a)(1) of the
Act.57
Fugate further testified that 3 or 4 days before he was
discharged , which would place it about April 20, he was
sitting with Troy Ward at the mill , and in reply to Fu-
gate 's statement that he wished his income tax would
come back, Troy Ward said , "Next year if that Union
gets in here you won 't have no income tax to come back
because they will close this place down ... that it was a
big place and they would knock it off for income tax."
Troy Ward testified that these poolroom discussions con-
cerning the Union were initiated by Fugate and that the
latter insisted , to the point of aggravation , arguing with
Ward over the Union . While I believe Ward in this re-
gard , Ward did not deny making the statements and, ac-
cordingly , I credit Fugate 's testimony in this regard. As
in the case of the poolroom conversations , Ward's state-
ment to Fugate on this occasion also constitutes a threat
to close the plant within the proscription of Section
8(a)(1) of the Act.
William Eddie Bowman, a fixer in the knitting depart-
ment and one of the union leaders, testified that on or
about April 1, Everett Roberson asked him what he
thought about a union. When Bowman replied that he
thought it was a good thing , Roberson stated that he was
opposed to the Union and that all it was after was union
dues. Bowman testified that about a week later Roberson
approached him at his machine and apprised him of the
fact that he had information that his wife was influencing
people to go to union meetings . Roberson was not
questioned about this second conversation, and, as to the
first, Roberson admitted talking to Bowman about the
Union but testified that he never interrogated Bowman
and that it was Bowman who initiated the conversation.
I find the conversations to have occurred as testified to
by Bowman. I find that Roberson's statement to Bow-
man, apprising him of the fact that he had information
concerning his wife influencing people to go to union
meetings was intended to create the impression of surveil-
lance, and that such conduct constitutes a violation of
Section 8(a)(1) of the Act.58 Notwithstanding this finding,
however, I find nothing unlawful as to Roberson's earlier
statements to Bowman.
Bowman, who admitted to being a very close personal
friend of Supervisor Troy Ward, testified that on several
occasions in April, Ward asked him how he felt about the
Union and registered his own opposition to it, by saying
that in his personal opinion if they voted the Union in, the
Company would close the plant. Bowman admitted that
in discussing the union affairs with Ward, Ward always
premised his statements with the fact that he was ex-
pressing his personal opinion. In view of the personal
relationship between Ward and Bowman, and the fact
that Ward emphasized that his statements were but his
opinion, I find the discussion to involve merely the pro's
and con's of unionism and constitutes no more than the
free exchange of views. Accordingly, I find that these
statements, in context, do not constitute a violation of the
Act. 59
Finally, Bowman testified that "approximately in
April" his friend Troy Ward brought a bundle of socks
back to James Hall, a knitter, and that he heard Hall ask
Ward if they were going to fire him over the Union. Ward,
according to Bowman, replied in the negative, and, refer-
ring to bad work, told Hall "we can get enough socks in
5 minutes to fire any employee." In the context of Hall's
question, I find Ward's reply to constitute an implied
threat, violative of Section 8(a)(1) of the Act.
Shirley Fugate, a sewing room employee who is alleged
as a discriminatee herein for having rendered testimony
in this proceeding,60 testified that on or around April 15,
1964, because she had heard a rumor that she was going
to be fired, she asked to speak with Elmer Kelley, the
general manager. She was sent for by her supervisor,
Parker Bean, and in the presence of Everett Roberson, in
reply to her inquiry, Bean assured her that she was not
going to be fired because she had attended a union meet-
ing. The conversation concluded with Bean's statement
that "there wasn't anybody going to be hurt except the
people," that he could not see that the Union was going
to help the employees in any way, and that the Company
was going to fight it all the way. With respect to this
matter, Everett Roberson testified that because it had
been reported to him that there was a rumor going around
concerning some of the girls being fired on account of the
Union, he decided that the girls should be assured that
they were not going to be fired because of the Union. Ac-
cordingly, several of the girls, including Shirley Fugate,
Alveida Harris, Frances Hill, and Peggy Wright, were
called into the office and reassured in this regard. While
the record evidence as a whole corroborates Roberson's
version as to the fact that he called a number of girls into
57 See Charles T. Reynolds Box Company, 139 NLRB 519 . See also
Great Leopard Market Corporation, Inc., d/b/a King Jack's Foodarama,
150 NLRB 1384.
11 Gainesville Publishing Company, supra.
5s Specialty Paper Mills, Inc, 152 NLRB 288.
60 In fact, Fugate's earlier testimony upon which the 8(a)(3) and (4) al-
legation is predicated, is limited to the one incident here recited.
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his office and talked with them at this time, neither
Roberson nor Parker Bean , who was not called as a
witness,61 were questioned concerning the additional
statements attributed to Bean by Fugate on this occasion.
I find that they were uttered as testified to by Fugate. The
statements made by Bean during this conversation I find
not to be of a coercive nature. Rather, I find them to be
expressive of the employer's position regarding the
Union, a position which it had a legal right to convey.
Bean 's reference to the people was not confined to union
people, but to the entire work force. Similarly, his state-
ment that the Company would fight the Union expressed
only that which the Company has a legal right to do. His
further assertion that he would use every legal means to
keep the Union out has been held not to violate the Act.
Standard Trucking Company, 134 NLRB 371. Also, an
employer's conduct in telling employees that his honest
belief was that the Union would not be profitable for them
has been held to be lawful. Henry I. Siegel Co., Inc., 143
NLRB 386. Accordingly, I find nothing in this conversa-
tion with Bean to be violative of Section 8(a)(1) of the
Act.
Frances Hill, another sewing room employee, who, like
Shirley Fugate, is alleged herein as a discriminatee for
having given testimony in this proceeding, testified that
on April 14, which I find to have been April 15, she too,
was called into Parker Bean 's office and told by Bean that
a rumor was going around that those who had attended
the Wolf Creek union meeting were going to be fired. He
told her that there was nothing to this "because he knew
he couldn't fire me over a union" but that "he could get
me messed up." At that point, Everett Roberson, who
had been present right along, stated that he could not un-
derstand why employees would talk to a complete
stranger when they could come to the Company. Again,
there is no record testimony, including that of Roberson,
which refutes Hill's version of the entire conversation. I
find it to have occurred as testified by Hill. An em-
ployer's conduct in telling an employee that she could get
"messed up" because of her union activities is tan-
tamount to a threat, and as such, is coercive in nature and
a violation of the Act. 62 Accordingly, I find that Bean's
warning that he could get Hill messed up to constitute a
violation of Section 8(a)(1) of the Act.
Peggy Wright, another sewer who is alleged as a dis-
criminatee herein, testified to a conversation on April 15
with Parker Bean and Everett Roberson which was very
similar to the conversations had with Shirley Fugate and
Frances Hill. However, in this conversation, in addition
to 'assuring Peggy Wright that she would not be fired
because of the Union, Bean told Wright that she was not
called in to be bawled out, but that one of the girls had
told him that she had been talking to her on company time
about the Union. Peggy Wright told him that she had not
been doing that. During the rather lengthy conversation
that ensued, Bean told her that both she and her husband
were considered good workers and that he would not
want her to do anything that she would be sorry for.
Roberson then asked her how her husband felt about the
Union, to which she replied that she did not know, that he
would have to ask him.63 At some point in the conversa-
tion, however, Wright told Roberson that she had signed
a union card, and Roberson then asked her if she knew
what she were signing when she signed it. Again, at some
later time, Wright asked Roberson to tell her how he felt
about the Union. Roberson proceeded at some length to
give a discourse of his feelings, much of which encom-
passed economic thoughts on the Union and a reference
to the Company's 5-minute break rule, concluding with
his opinion that the Union could not do anything for her
that the Company was not already doing, and his state-
ment that "the Union is not coming in if I can stop it." As
Roberson was not specifically questioned as to this con-
versation, Wright's version stands unrefuted.
I find that, for the most part, matters expressed above
by Roberson and Bean are privileged under Section 8(c)
of the Act. However, I find that Bean's statement to Hill,
that he would not want her to do anything that she would
be sorry for, constitutes a threat under Section 8(a)(1) of
the Act.fi4
Ronald W. Patton, another of the alleged dis-
criminatees, testified that right after the first meeting at
Rattan Bridge, which would place it right after April 11,
Everett Roberson approached him at his machine, and
asked him what he thought about the Union and what he
thought about the meeting he attended the other day.
When Patton replied that he did not know much about it,
but that he was learning more about it every day, Rober-
son replied that all the Union was after was dues, and that
he better think about it before he did anything wrong. Pat-
ton testified that a couple of nights later, Leon Young,
who at the time was the general superintendent, pulled up
in his automobile as Patton was standing outside the mill
with a couple of other boys, and said, "I heard you went
to a meeting yesterday." When Patton replied that the
only meeting he attended yesterday was Sunday School,
Young retorted, "You sure?" Roberson, although testify-
ing that he did not initiate any union conversation with
Patton, could not recall whether he talked with him about
the Union or not. Leon Young did not testify.65 Under
these circumstances, and notwithstanding my complete
rejection of Patton as a credible witness as hereinafter
noted, I find the conversations to have occurred as
testified to by Patton. As to the first of the above conver-
sations, I find that Roberson's reply to Patton, that he
better think about it before he did anything wrong, con-
stitutes an implied threat similar to the situation where an
employee is warned not to do something connected with
the Union which might hurt him or for which he would
later feel sorry. Skyline Homes, Inc., supra. As to the
second, I also find Young's conversation with Patton to
constitute conduct violative of the Act.
Patton further testified that some 2, 3, or 4 weeks be-
fore his discharge on August 28, Ralph Mayes, knitting
department supervisor, approached him at his machine
and asked him how the Union was getting along, to which
Patton replied that it was getting along fine. Patton
further testified that on this occasion Mayes said to him,
"I seen [sic] some of the union men down in town
today," and that "I don't care who joins the Union or
what the Union does, all I want is a good 8 hours' work
out of somebody." The conversation concluded when
61 Parker Bean was relieved of his supervisory duties on November 4,
1964, and moved to the warehouse.
62 See Purity Food Stores, Inc., 150 NLRB 1523.
63 Although both Peggy Wright and her husband, Noah, had at that
point signed the earliest union letter to the Company indicating their union
allegiance, because said letter was not received by the Respondent until
April 17, it would appear that Roberson would not have learned, in that
manner at least , of their feelings on the subject.
64 Skyline Homes, Inc, 134 NLRB 155.
65 Leon Young was relieved of his duties on September 25, 1964,
KAYSER-ROTH HOSIERY CO.
Mayes agreed with Patton's feeling that he did not like to
see anybody getting picked on or kicked around. As
Mayes was called upon to testify only at the reopened
hearing in this proceeding, he was not questioned as to
this incident. Accordingly, I find. it to have occurred as
testified by Patton. In this regard, however, although I
find Mayes' interrogation as to the Union to be violative
of the Act, for reasons hereinafter set forth in the discus-
sion of Patton's discharge, I find Mayes' reference to the
Union and 8 hours of work not to be a violation of Section
8(a)(1).
Samuel Barley, a former knitting department employee
who was discharged on April 23 and, although waiving an
offer of reinstatement, was subsequently made whole by
the Respondent pursuant to the terms of the August set-
tlement agreement, credibly testified that the afternoon
following the March 17 leaflet distribution at the plant,
Everett Roberson approached him and asked him what he
thought about the leaflets that had been handed out the
day before. When he replied that he had not thought much
about it, Roberson asked him what the rest of the boys
thought, to which Barley again was noncommittal. Rober-
son told him that he thought the town was too small for a
union and that he did not want to see Barley make a,
mistake in any way. Roberson was not questioned as to
this and, accordingly, Barley's credible testimony stands
undenied. I find Roberson's interrogation of Barley on
this occasion, concluding with his statement that he did
not want to see Barley make a mistake in any way, to con-
stitute unlawful interrogation and threats within the
meaning of Section 8(a)(1) of the Act.66
Alveida Harris, a sewing department employee who
was discharged on April 21, was subject to the earlier set-
tlement agreement, and was reinstated pursuant thereto,
testified that on or about April 15, Parker Bean and
Everett Roberson called her into the office and told her
that there had been rumors going around the plant that
she would be discharged and assured her that no such
thing was going to happen. During the conversation, how-
ever, according to Harris, Roberson asked her if she
could get her son, James Hall, to pull out of the Union, to
which she replied that she did not know. According to
Harris, Roberson also asked her to talk to her son and at-
tempt to influence him to discourage others in this regard.
Although, as in the case of Shirley Fugate, Frances Hill,
and Peggy Wright, Roberson admits to having called Har-
ris into his office on this occasion, he was not questioned
as to the additional requests concerning the Union and
her son which were attributed to him by Harris. As her
testimony in this regard stands unrefuted, it is credited. I
find that Roberson's attempt to have Harris prevail upon
her son to pull out of the Union and to have him
discourage others in connection with the Union clearly
violates Section 8(a)(1) of the Act.67
Harris testified that a day or two later when she was on
the parking lot at lunch with several girls, Troy Ward
asked her if she had signed a union card, and she told him
that she had. Ward's version, which I credit, in part
because it was not denied by Harris, is that as Troy Ward
passed the girls on this occasion Harris said to Ward, "I
know what to sign and what not to, don't you?" To this
Ward admitted that he answered, "I know what to put my
88 See Frank C Varney Co., Inc, 151 NLRB 280 Skyline Homes,
Inc, supra.
67 See Movie Star, Inc , 145 NLRB 319.
387
name on and what to keep it off." Ward admitted that his
reference here was to the Union. While interrogation as
to the signing of union cards may be a violation, H. H.
Zimmerli, 133 NLRB 1217; Boro Motors, Inc., 153
NLRB 145, in this situation, Ward's statement was but a
reply to a question of Harris, and as such, was-not unlaw-
ful. Henry I. Siegel Co., Inc., supra.
Bobbie Sue Dunn, an inspector in the inspecting de-
partment and an alleged discriminatee, testified that on or
about June 4, Supervisor Troy Ward approached her at
her machine and asked her if she were still for the Union,
to which she replied that she was. Ward then told her that
she did not know what she was doing if she voted for the
Union, that she was merely listening to her husband.
Ward concluded by stating that if the Union came in they
would all be hurt. Ward admitted having a conversation
with Bobbie Sue Dunn about the Union and admitted that
he could have stated that if the Union came in they would
be hurt but denied asking her whether she was still for
the Union. I credit Dunn's testimony. I find that Ward's
statement that if the Union came in they would all be hurt
to constitute coercion within the meaning of Section
8(a)(1) of the Act.68
Euel Robert Tate, an alleged discriminatee who
worked as a knitter in the knitting department until his
discharge on February 1, 1965, testified that a day or two
after he signed the letter going to the Company, which
was dated April 27, 1964, Troy Ward approached him at
his machine and said, "I see you signed a union card."
When Tate replied that it was right, Ward said, "Don't
you care anything about your job?" When Tate replied in
the affirmative, Ward asked why he signed the card, to
which Tate replied that he thought it would be a good
thing for Dayton. Although Tate was very vague and
hesitant as to when this took place, originally testifying
that it was 3 or 4 months before his discharge, but finally
placing it in April, the fact remains that Troy Ward was
not questioned on this and that Tate's testimony stands
unrefuted. It is credited. Ward's statement to the effect
that "don't you care anything about your job" constitutes
a clear threat to job security, following as it did, a
question as to whether Tate had signed a union card.
Kelly Brothers Nurseries, Inc., 145 NLRB 285, enforce-
ment denied 341 F.2d 433 (C.A. 2); Great Leopard Mar-
ket Corp., 150 NLRB 1384.
Employee Agnus Smith and James Suttles, an alleged
discriminatee, each testified to a conversation on
November 19, the day after the election, in which Earl
Barger, superintendent of the finishing division, told them
that he did not want to hear of them talking about the
Union in the mill anymore, and that if he did he would
bounce them both out the back door. On cross-examina-
tion, Smith admitted that she had that date been talking
union with another employee while they were working on
the job. Accordingly, I credit Earl Barger's testimony to
the effect that he had had reports that Suttles and Smith
had been soliciting for the Union during working hours,
and that, on this occasion, he warned them that a con-
tinuation of this would result in their discharge. I there-
fore find this not to be a violation of the Act.69
James Buck Reel, another alleged discriminatee,
testified that on August 18, his supervisor in the dye
68 See Lyon, Inc., 145 NLRB 54; Skyline Homes, Inc ., supra
69 See Star-Brae Industries , Inc., 127 NLRB 1008
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
house, Wendell Borne, asked him if he had signed a union
card, and, when Reel answered that he had, Borne said
that he did not think that he (Reel) would because of his
close friendship with Leon Young. Reel allegedly replied
that he had no choice, that it looked like a good thing.
Reel, in answer to a leading question, further testified that
Borne asked him if Albert Calbaugh had joined the
Union, to which Reel replied that he himself had just that
afternoon signed Albert Calbaugh up with the Union.
Upon having his recollection refreshed by referring to his
pretrial affidavit, Reel testified that Borne also asked him
whether Charles Wayne Porter had joined the Union yet,
to which Reel replied that he thought that he had. Wen-
dell Borne, who was, himself, active in the Union, and
who admittedly knew most every employee who aligned
himself with the Union, credibly denied having a conver-
sation with Reel concerning the signing of union cards, by
Reel or by Porter. For reasons hereinafter discussed per-
taining to the credibility of Borne, on the one hand, and of
Reel, on the other, I do not credit Reel's testimony con-
cerning the August 18 alleged incident, and, accordingly,
find that it did not occur.
Vaughn Hensley, who, until his allegedly discriminato-
ry discharge on August 27, was employed by the Respond-
ent as a boarder in the boarding room, testified that
about the last of June, Charlie Kelley asked him if he had
signed a union card and that he replied that he had. Kelley
then said that if he were Hensley he would not have
anything to do with the Union, "that they might shut the
plant down." I find that Kelley's suggestion to Hensley,
that if he were Hensley he would not have anything to do
with the Union, constitutes a threat within the meaning of
Section 8(a)(1), Purity Food Stores, Inc., 150 NLRB
1523; Moulton Manufacturing Co., 152 NLRB 196, and
Kelley's subsequent statement that they might shut the
plant down, also constitutes, in this context, a threat
rather than a prediction, and, as such, constitutes a viola-
tion of the Act. Great Leopard Market Corp., supra;
Philip Carey Manufacturing Co., 140 NLRB 1103.
According to Hensley, 2 or 3 nights later, Robert Wil-
key, who, at the time was the second-shift foreman, asked
him if he had signed a union card. When Hensley replied
in the affirmative, Wilkey stated that if he were Hensley
he would have nothing to do with the Union, that if he
"wanted out of the Union" that he could see Superintend-
ent Freeman Looney, and that if he did not that he
would start getting bad work back, and then he would be
discharged. Hensley ended the alleged conversation by
telling Wilkey that he wanted the Union, and that he
thought the employees needed one. As hereinafter noted,
Charlie Kelley's testimony from a hospital bed limited to
a single incident and therefore Hensley's testimony as to
the June conversation with Kelley stands unrefuted. For
this reason only, it is credited. As to the second alleged
conversation, Robert Wilkey, who in October 1964 was
relieved of his supervisory duties and reduced to an em-
ployee status with the Respondent, was called as an early
witness by the General Counsel and testified at length in
support of the Union's position in this proceeding. As he
was not questioned on this and thus failed to corroborate
Hensley's testimony, which I found generally lacked cre-
dence, I find that the incident did not occur.
E. Alleged Violations of Section 8(a)(3)70
1. Earl Calbaugh
Unlike the other 29 alleged discriminatees in this
proceeding, the issue as to Earl Calbaugh does not in-
volve his layoff, which occurred on April 29, but, rather,
is confined to the question of whether, within a reasona-
ble time subsequent to the August 10 settlement agree-
ment, the Respondent unlawfully failed to offer Calbaugh
a job for which he was qualified.71
Preliminarily, and by way of background, the evidence
reveals that Earl Calbaugh was initially employed as a
laborer for Daniels Construction Company when it was
performing construction work for the Respondent. Along
in February 1964, when Daniels' contract with the
Respondent was running out, Earl Calbaugh, along with
others, applied for work at the Respondent and was hired
as a laborer in connection with the building of the
Respondent's new finishing plant with the understanding
that such construction work would be temporary. Thus,
in such capacity, Earl Calbaugh helped build yarn and
finished product bins, and assisted in floor finishing.
When, during March, Calbaugh fell and broke his arm
while so employed, he was put to work doing painting.
When the painting work finally came to an end on April
29, Earl Calbaugh was laid off.
On August 10, as part of the negotiations in connection
with the informal settlement agreement in the earlier
proceeding, the parties agreed that Earl Calbaugh would
be paid the equivalent of 2 weeks' pay and that the "em-
ployer will grant Earl W. Calbaugh priority for employ-
ment in any job which comes open and for which he is
qualified." This latter provision contained in the settle-
ment agreement encompassed an understanding between
the parties that the Respondent would also attempt to find
Calbaugh employment with some other company for
which he was qualified.72
Confined solely to the issue at hand, the record
evidence reveals that Calbaugh, by his own admission,
was experienced only as a common laborer on construc-
tion work, that the Respondent did not in the course of its
regular mill operations employ laborers, and that Cal-
baugh was not qualified to fill any of the job classifica-
tions in the mill. As to the understanding engendered by
the settlement agreement pertaining to the Respondent's
assisting Calbaugh in securing work elsewhere, the
evidence reveals that on August 10, Roberson ap-
proached Calbaugh and told him that Elkay Sink Manu-
facturing Company in Dayton was starting to build its
operation and that he (Roberson) could help him get a
7" Sec 8(a)(3) of the Act reads in part as follows
Sec. 8 (a) It shall be an unfair labor practice for an employer-
(3) by discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or discourage
membership in any labor organization
71 Although Earl Calbaugh was included in the overall 8(a)(3) paragraph
in the complaint alleging discharge and refusal to reinstate, counsel for the
General Counsel made it clear at the hearing that Calbaugh's discharge
was not asserted as a violation Nor was the fact that Calbaugh was not
reinstated asserted as a violation Accordingly, neither was litigated
72 No inference as to a discriminatory layoff in April may properly be
drawn from Calbaugh's inclusion in the settlement agreement, which
agreement was informal (as distinguished from formal) and contained a
nonadmission clause
KAYSER-ROTH HOSIERY CO.
construction job there if he would go up and apply. Cal-
baugh, whose arm had not healed from the break it suf-
fered the previous March, replied that he could not push
a wheelbarrow and that there was no need for him to go
up there.
In view of the fact that on August 10, Calbaugh admit-
tedly was not physically capable of performing the one
job he was qualified to do, specifically construction work,
and so advised Roberson , it would seem that at some
point thereafter it would have been incumbent upon him
to apprise the Respondent that he had recovered suffi-
ciently to resume work. The fact remains that at no time
after Roberson attempted to assist Calbaugh on August
10 did Calbaugh inquire of the Respondent as to employ-
ment , either at its plant or elsewhere.73
In any event, the record fails to show that any job
opened up at the plant after August 10 for which Cal-
baugh was qualified or that Calbaugh was at anytime
thereafter physically capable of performing any job for
which he was otherwise qualified. This, coupled with the
fact that the record evidence as to Calbaugh's activity on
behalf of the Union is limited to his having been one of
those employees who signed a union letter sent to the
Respondent the previous April, does not justify a dis-
criminatory finding as to him. Under these circum-
stances, I find that the General Counsel has not proved
by a preponderance of the credible evidence that the
Respondent unlawfully failed to offer Earl Calbaugh a job
for which he was qualified, or that the Respondent other-
wise violated Section 8(a)(3) of the Act with respect to
Calbaugh.
2. James W. McMillian
James McMillian, along with several other employees,
was hired on or about the first of March 1964, as a con-
struction worker, and was put to work building racks in
the new mill. At the time of his hire, he was told that the
work was temporary and that he was being employed as
a temporary employee. In this capacity, McMillian
worked under Leon Young, who, at the time was in
charge of new construction, until the job ran out on or
about April 12. On April 15, McMillian, who had asked
for work in the plant but had had no experience in a
hosiery mill before, was accepted as a knitter trainee in
the knitting department. He worked as such for 1 or 2
days on the day shift under Supervisor Ralph Mayes and
then was transferred to the third shift under Supervisor
Cecil Housley. Athough having been bothered for several
weeks with severe stomach trouble, subsequently diag-
nosed as a pinched nerve in his back, McMillian, with a
number of absences , remained in the Respondent's em-
ploy through April 28, at which time, under his doctor's
orders, he was forced to quit work.74
On the following day, April 29, having become too ill
to go to work , McMillian telephoned the plant so advising
73 In fact, the record contains no evidence as to when , if ever, Cal-
baugh 's arm thereafter improved to a point where he could assume a
laborer's job.
94 During the period , according to Superintendent Roberson , McMil-
lian worked only 4 or 5 days . McMillian , very uncertain, testified that he
did not remember being absent while employed as knitter trainee, but did
not deny that he was absent on at least two occasions.
45 McMillian testified further that the slip originally contained the ex-
planation , "Excessive absenteeism during probation on training," and
that, when he objected to this unless it included the word "illness" at the
389
the office, and also called his supervisor, Cecil Housley.
Thereafter, in the early part of May, having received
word that the mill had attempted to reach him, McMillian
telephoned Ralph Mayes, the head supervisor, and, in
reply to Mayes' query of whether he were able to return
to work , McMillian answered that he was unable to go
back and would have to be out a while longer. At that
point, Mayes asked McMillian to take a layoff slip so that
he could hire someone else to run his machine, to which
McMillian agreed with his understanding being that he
would go back to work when he was physically able. On
May 6 , McMillian went to the plant and received from
receptionist Peggy Austin his pay and separation notice,
the latter indicating that he had been discharged as of
April 28, for reasons of disability.75
McMillian remained incapable of performing any work
because of his disability through May and up until the
middle of June, at which time his doctor gave him a
qualified release, with the caveat to watch himself and not
to do any heavy work. According to McMillian, he im-
mediately called Mayes telling him- that he was able to
work and asking him if he could return to work. Mayes
told McMillian that they did not have anything he could
do at that time, and for him to check back. About 2 weeks
later, McMillian again talked with Mayes on the
telephone and again , in reply to McMillian 's question of
whether he had any job available that he (McMillian)
could do, Mayes replied that he did not.76
McMillian testified that, about a week later, which
would place it toward the end of the first week in July,
having heard that Kayser-Roth was employing knitters,
but only women knitters, he called Roberson. In reply to
McMillian ' s dual question of whether the Company
needed knitters at that time and whether he could go to
work, Roberson answered that he needed knitters but
that he waned women.
Roberson testified that he never heard from McMillian
after he left in April, nor received any report that he
thereafter sought to return to work. Roberson admitted
that the company wide policy is to use women as knitters
rather than to use men, that, until March, they had em-
ployed all men knitters in Dayton because of the 7-day
operation, and that when they moved into the new plant
in March and the extra space alleviated the necessity of
a 7-day operation, they started hiring women knitters in
accordance with the companywide policy. At the time of
the hearing, however, they still had some men knitters. I
find that McMillian did in fact make contact with Rober-
son in early July as testified to by McMillian. I further
find that at time of his telephone call, the Company did
have one or more openings for knitters.
The evidence reveals that McMillian, in April, at-
tended one union meeting , and signed a union authoriza-
tion card as well as a union letter. Unlike most of the
other alleged discriminatees in this proceeding , matters
end of it, Austin left the office and subsequently returned with the slip in-
dicating that his discharge was based upon his disability.
76 Mayes was not called by the Respondent as a witness during the ini-
tial hearing herem , and his testimony at the reopened hearing in October,
was confined to one 8 (a)(4) allegation. Accordingly , McMilhan's
testimony with respect to the two conversations with Mayes stands un-
refuted . McMillian, in addition to appearing less than candid while testify-
mg, was a very confused witness with respect to crucial dates and circum-
stances. However, in view of the fact that McMillian's testimony stands
unrefined, and notwithstanding my reservations concerning McMillian's
candor, I credit his testimony as to the above conversations.
308-926 0-70-26
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pertaining to McMillian's case arose at the height of the
Union's campaign and at a time when u1-iion feelings, pro
and con, were strong. Chronologically, on April 1, Super-
visor Cecil Housley asked him if he were for the Union,
and McMillian told him that he was. A week or 10 days
later, around April 10, Housley again talked with McMil-
lian about the Union, admonishing that if anyone ap-
proaches him about the Union he should tell him that he
does not want anything to do with it. On April 15, Mc-
Millian was given a job as a knitter trainee.77 Thereafter,
McMillian, failing to heed Housley's "advice," signed a
union authorization card and, on April 27, a union letter
making known his union activities, which letter was
received by the Company on May 1.
Under these circumstances, the inference is warranted
that the Respondent's refusal to give McMillian a knitter
job during the first week in July when such a position was
open was based upon McMillian's having joined the
Union in April after having been admonished not to have
anything to do with it. I so find. Therefore, although find-
ing nothing unlawful as to his employment termination on
April 28, I find that the Respondent, in refusing to hire
McMillian during the first week in July, did so in violation
of Section 8(a)(3) and (1) of the Act.78
3. Bobby Ray Cox
Bobby Ray Cox was employed by the Respondent
from November 4, 1963, until his discharge on July 15,
1964. During his employment he worked as a boarder in
the boarding room, having worked one time or another on
all three shifts. For the 4 months immediately preceding
his discharge, Cox worked on the third-shift, 11 p.m. to
7 a.m., under Roy Stinnett, supervisor of the boarding
room. The evidence shows that Cox was among those
who signed the first union letter to the Company, dated
April 11, 1964, and, based upon his uncontradicted
testimony, that he signed a union authorization card, that
he helped get other people to sign, and that he attended
union meetings.
On the night of July 13,1964, Cox, who was scheduled
to report for work at 11 p.m., left the Rhea County Drive-
in about 10:30 p.m. and stopped at the Dayton Truck
Stop for a cup of coffee before driving on to work. The
Dayton Truck Stop is located 2.5 miles north of the plant
on Highway 27, the main route traveling north and south
through Dayton. At approximately 10:45 p.m., Cox left
the truck stop, but, having traveled about 100 feet on the
highway, his car broke down. Cox pushed it back to the
truck stop, and proceeded to telephone the plant. His
phone call was taken by Robert Wilkey, who, at that time,
was the second-shift supervisor of the boarding room. In
the absence, of Third-Shift Supervisor Stinnett, who had
not yet arrived, Cox apprised Wilkey of the fact that he
could not get to work because his car had broken down.
77 This took place the month following the time when, according to
Roberson, the Company stopped hiring men knitters.
79 The Respondent 's position that McMillian was terminated on April
28 because of excessive absenteeism while still a probationary employee
and because he was unable to work, even if borne out by the record, in no
way alters the above finding of a discrumnatory refusal to hire.
79 The factual account reported to this point is taken from the uncon-
tradicted testimony of Cox.
80 Cox testified that, when he contradicted Looney in this regard,
Young asked him if he were calling him a liar, to which Cox replied that "I
Wilkey said that he would try to get someone to go after
him, and would call him back in 5 or 10 minutes. Within
a few minutes, Wilkey telephoned Cox and told him that
Gene Hulgan, a second-shift employee, and Leon Young,
who, at that time was the general superintendent of the
plant, would be up to get him. 79
According to the testimony of Cox, no one ever came
to get him that night, and he remained at the truck stop
until the following morning at 6:30 a.m., at which time
Carl Sims, half owner of the truck stop who had been on
duty all night, drove him into town.
According to Cox's further testimony, he reported to
work the following night, July 14, and was told by Leon
Young that they did not want him to work that night and
for him to report to the office the next night. The follow-
ing day, July 15, Cox reported as requested, and was told
by Freeman Looney, in Young's presence, that he was
fired. During an argument that ensued, Looney, who, at
that time was superintendent of the finishing division,
maintained that Hulgan and Young had gone up to the
truck stop to pick him up and accused Cox of not being
there. When Cox denied the accusation, and in turn ac-
cused Young of lying,80 Looney handed Cox his
discharge notice, which indicates that Cox was
discharged for not working on July 14.81
Roy Stinnett testified that when he arrived at work the
night of July 13, Robert Wilkey reported that Cox had
just called in from the truck stop asserting that he had no
transportation, and that they had decided to go get him.
Immediately thereafter Young and Hulgan left the plant
for this purpose '112 and, in 20 to 25 minutes, returned,
telling Stinnett that they could not find Cox. Stinnett
further testified that shortly thereafter, Young again went
to look for Cox at the truck stop, and, after about 40
minutes, returned with the report that Cox was not there.
The following night, when Cox reported for work, Stin-
nett, obeying Young's directive to not let Cox work and
to "send him home," told Cox that they had made two
trips to the truck stop the night before and that he was not
there, whereupon, Cox adamantly refuted the assertion,
replying that his car had broken down at the boat dock,
and that he had then gone up to the truck stop with some
boys.
I find no sound evidentiary basis upon which to disbe-
lieve Cox's version of the July 13 incident, including the
assertion that he remained at the truck stop and that no
one from the plant showed up. Thus, without in any way
impinging upon the veracity of Stinnett whom I find to
have been a truthful witness, there is no direct evidence
which refutes Cox's testimony.83 Except for truck stop
owner, Carl Sims, testimony of others who would have
been in a position to shed additional light on the matter
was not forthcoming. Neither Plant Superintendent
Leon Young nor employee Gene Hulgan, who allegedly
drove to the truck stop and failed to find Cox, was called
upon to testify in this proceeding, and Robert Wilkey,
am not calling you a liar like that, but if it comes right down to that, that's
it... "
81 The third shift actually commenced at 11 p.m on the night of July
13.
82 It is not clear from Stinnett's testimony whether Robert Wilkey ac-
tually went with Young and Hulgan, but presumably he did not.
83 Roy Stinnett, who did not himself make a trip to the truck stop,
testified only that it was reported to him by Young that the latter went to
the truck stop and that Cox was not there
KAYSER-ROTH HOSIERY CO. 391
although called by, and testifying on behalf of, the
General Counsel was not questioned on this matter.84
Carl Sims, who for the most part corroborated Cox's
testimony,"' and who might otherwise have been a helpful
and unbiased witness but for the fact that Cox was "about
as good a friend as you can have" to Sims, was not too
convincing a witness on some points, particularly his
recollection that this incident occurred in November or
December rather than on July 13. In any event, in the
absence of direct testimony to the contrary, I find that
Cox did telephone the plant from the truck stop just prior
to his scheduled reporting time on July 13, that he
remained there for the duration of the night, and that at no
time did anyone from the plant come by to take him to
work.
The Respondent asserts that Cox was terminated for
laying out of work without an'excuse on the night of July
13, coupled with giving a fictitious reason for doing so. In
support of its position, the evidence discloses that there
existed no compelling reason for Cox to have stayed at
the truck stop all night, for Cox, an able-bodied young
man, could easily have walked the 2-1/2 miles from the
truck stop to the plant in 30 or 40 minutes. Nor did Cox
attempt to use the telephone again to call the plant, which,
it would seem, might have been logical for one to do
under the circumstances had he really been intent upon
getting to work. Further, as testified to by Sims, Dayton
is a small town, and people, many of whom were known
to him, dropped in at the truck stop off and on during the
night, any one of whom could have given Cox a ride to
town had he asked. Such a request by frequent patrons of
his truck stop, according to Sims, is not uncommon. For
these reasons I find that Cox did lay out from work on the
night in question, and did so without having a valid reason
for not reporting to the plant.
Now, the question arises as to whether this was the
true motivation behind the Respondent's decision to ter-
minate Cox.86 According to Roy Stinnett, the decision to
discharge Cox was made by Leon Young, who told him
at the time that Cox was to be let go because of his lying
about being up at the truck stop. Former Plant Superin-
tendent Leon Young, however, did not testify. Nor did
former Division Superintendent Freeman Looney, who,
according to Cox, was the one who, is Young's presence,
told Cox that he was discharged. Therefore, we do not
have the benefit of the testimony of the two company offi-
cials whose motivation is in question, one of whom,
Young, was also the person who allegedly made the trip
to the truck stop and allegedly failed to find Cox.
The Respondent adduced evidence showing that 6
weeks earlier, on May 1, Cox received a written repri-
mand for not reporting to work on April 24, on which oc-
casion Cox, who had a tootache, failed to notify the
Respondent, assertedly because his car had broken down
and he did not have access to a telephone. A perusal of
the reprimand document, however, indicates that the
basis for the admonition was the fact that Cox had failed
to call his supervisor apprising him of his intent not to go
to work rather than the fact that he laid out.87
Accordingly, as the gravamen of the earlier offense was
the failure of Cox to call the plant, as distinguished from
the offense here where Cox in fact called in, but had no
real reason for not working on the night in question, it
cannot validly be relied upon by the Respondent as sup-
port of the discharge action on this occasion.
While it is true that Cox may not have been one of the
leaders in the Union and that the evidence failed to reveal
that any company official had at any time spoken to or
questioned Cox concerning the Union,88 the fact remains
that Cox was one of the more active union adherents, that
his discharge occurred not too long after what appears to
have been the height of the spring union organizing cam-
paign and during a time when union animosity ran high
and many of the former company officials were still in
authority and openly hostile to union activity. Although
far from condoning the conduct and attitude of employee
Cox, under all of the circumstances, I am of the opinion,
and so find, that the discharge of Bobby Ray Cox on July
15, 1964, was based in part at least on his union activities,
and that the Respondent thereby violated Section 8(a)(3)
of the Act. 89
4. Burton Eugene Yates
Burton Yates was initially hired by the Respondent on
February 25, 1964, as a knitter trainee and placed on the
first shift in the knitting department. Five weeks later, he
was transferred to the third shift under Supervisor Cecil
Housley where he operated a striping machine, which is
a boy's sock machine. On May, 22, Yates was involved
in an automobile accident and, as a result, was granted
sick leave from June 2, until July 20.
When Yates had recovered sufficiently and reported
back to work, the Respondent had nothing available for
him except a set of machines normally operated by em-
ployee Gary Keylon, who had left on a 2-week military
leave with the National Guard. Ralph Mayes, head super-
visor of the knitting department, apprised Yates of this
fact and told him that he would either give him a slip per-
mitting him to draw unemployment or that he could, tem-
porarily, run Keylon's machine until the latter returned,
with the possibility that by that time some other machine
might open up. Yates chose the latter, and operated
Keylon's machines, which were similar to his, during this
period. When Keylon subsequently returned, the only
thing open was a set of tubing machines. Yates had never
operated this type machine before, but because it was the
only thing available, Yates was asked if he wanted it until
something else came open and he took it.
Apparently, however, before starting the job, Yates, on
Tuesday, August 4, while mowing the lawn was severely
84 For the record, Young and Division Superintendent Freeman Looney
were relieved of their duties and severed from Respondent's employ
on September 25 and July 31, 1964, respectively, while Robert Wilkey
was demoted from his supervisory position on October 5, 1964.
85 Contrary to thg, testimony of Cox, however, to the effect that his
wife, Rachelle Sinf's'..alled him (Cox) to the phone on the return call from
the plant, Sims testified that his wife was not there that night and that it
was he who called Cox to the telephone.
86 The Respondent ' s separation notice reflects that Cox was discharged
for not working on July 14.
87 Although not adverted to by counsel for the Respondent, a posted
rule of the Company reads as follows:
2. ABSENCE FROM WORK-Anyone who is unable to report
for work because of sickness or extreme emergency should noti-
fy his supervisor at once. Dropping from payroll may result from
unexcused absence.
88 Nor am I unmindful of the fact that the Company reprimand of May
1 relating to Cox's earlier offense on April 24, alluded to above, came
after the Company had been made aware of Cox 's union affiliation
through receipt on April 17 of the union letter dated April 11 containing
Cox's signature
89 See N.L.R.B. v. Electric Steam Radiator Corporation, 321 F.2d 733,
738 (C.A. 6).
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stung on the foot by yellow jackets, which kept him from
working for several days. While off work, Yates ran into
Housley on Thursday night, August 6, about 10 p.m. at
the Dayton Drug Store watching the returns from the
sheriffs election. Housley, after inquiring as to Yates'
foot, departed, saying that he would see him after a while
Although scheduled to go to work at I I p m . Yates did
not report, nor did he work the rest of the week The fol-
lowing Monday afternoon, August 10. Roberson, having
been apprised of the fact that Housley had seen Yates the
night of the election walking around, saw Yates at the set-
tlement negotiations at the courthouse and inquired as to
why he had not been working. Yates, who had recovered
by this time, replied that the bee sting had kept him from
going to work, and, when confronted with Roberson's
knowledge of his having been seen walking around at the
election, Yates admitted being there but stated that at that
time his foot still bothered him. At that, Roberson told
Yates that he believed that he was laying out, and ad-
monished him to go back to work that night on that set of
machines. Roberson testified further that he told Yates
that he was giving him a reprimand, "but for him to go
back up there and work and everything will he all right."90
That night, August 10, Yates commenced on the set of
tubing machines, which makes seats for leotards, but,
never having worked this machine before, found it very
difficult. According to the unrefuted testimony of
Yates,9' he asked Housley to give him some operating in-
structions on the tubing machine, and Housley told him
that he did not have time, to go ahead and start. and that
he would be back later. When Housley returned later on,
Yates again asked him for assistance and was again told
by Housley that he did not have the time. Yates told
Housley that he could not run many machines, of which
there were 17 to the set, if someone did not instruct him
Housley, in leaving, merely replied that he was just doing
what he had to do. With the advice and assistance of
several employees, Yates was able to run five of the
machines that night. At 7 a m. he clocked out, went
home, and reported back to work the following night. Au-
gust 11 On this occasion, Yates again sought Housley's
assistance in the operation of the tubing machine
Housley answered some of Yates' questions and stayed
and talked with Yates briefly, but informed him that he
did not have anyone available at the time to teach him and
that he, himself, did not have the time Yates proceeded
to work the machine for a short while, but. being afraid
that he would "mess the machines up," Yates went to
Housley, and told him that he was going to quit if they did
not give him somebody to show him how to operate the
job Housley again reiterated the fact that he did not have
time, and that he was doing just what he had to do. Yates
replied that "under the circumstances I felt like I would
be better off home in bed." Yates then left and did just
that.
According to Yates, on two occasions shortly
thereafter, Yates went back to the mill to see Everett
Roberson without success, the receptionist not returning
to her desk the first time, and telling Yates that she could
not locate him, the second time. Yates then asked for his
separation slip which was mailed to him a few days later.
When asked whether he remembered the reason for
separation given on the slip , Yates testified that he
thought that it stated "Did not like the job."
The General Counsel does not deny that Yates volun-
tarily left the Respondent ' s employ, but asserts that the
facts support a finding of constructive discharge , and that,
under the circumstances , including the fact that Yates
had never been given operating instruction on the tubing
machine, his voluntary separation was, perhaps, a pru-
dent act on his part . Counsel for the Charging Party goes
one step further, imputing to the Respondent an ulterior
motive in assigning Yates the tubing machine , that is, an
awareness of the fact that, because of his inability to
operate it properly , Yates would be forced to leave the
Respondent ' s employ. Needless to say, were either posi-
tion tenable on the facts , a finding of discrimination would
follow
I find, however, such not to be the case. The record is
replete with testimony relating to the similarity or lack
thereof between the requirements for operating the strip-
ing machine and the tubing machine. I deem such a
resolution unnecessary to the issue involved . As has been
noted elsewhere herein , with the exception perhaps of the
military leave situation , under the long-established prac-
tice of the Respondent employees who return from leaves
are entitled to a job only if one is open for them at the
time. Thus , as there was no permanent machine open
when Yates returned from his sick leave in July, there
was no obligation on the Respondent ' s part to give
Yates anything. Again , a couple of weeks later, when
Keylon returned from military leave , the Respondent still
had nothing open except one tubing machine, which it of-
fered to Yates Thus, even assuming, arguendo, that
there existed a real difference between the two machines,
in view of the fact that , at the time, the tubing machine
was the only machine in the mill open and that Yates was
offered the opportunity to try it and was under no com-
pulsion to take it, it hardly can be said that Yates' deci-
sion to quit constitutes a constructive discharge. This
conclusion could be altered, perhaps, only by a finding
that once Yates accepted the tubing machine, Housley,
although not obligated to instruct Yates on it, failed or
refused to do so solely for discriminatory reasons. In this
regard, the record discloses that during the preceding
April, Yates signed a union card and one of the union let-
ters to the Respondent revealing his union sympathies,
and attended some union meetings. As discussed above
concerning 8(a)(1) conduct , the record also reveals that
on three occasions in March and Apnl , during the early
weeks of the union organizing campaign , Yates was inter-
rogated by Housley concerning activities at union
meetings, and further, that, toward the latter part of May,
Everett Roberson , after interrogation and union discus-
sion , let Yates know by way of a veiled threat that,
because Yates was still within the 90-day probationary
period as a trainee, he could let him go anytime without
having a reason As related to the question of Housley's
motivation in not assisting Yates when the latter assumed
the operation of the tubing machine on August 10 and
11 ,92 and notwithstanding the seriousness of this type of
conduct , it would seem that, had the Respondent desired
9" On cross-examination , Yates admitted that , on this occasion, he had
been fearful of being discharged and that , through the Union Representa-
tive Benton , they momentarily blocked the already agreed-upon settle-
ment until Roberson assured Benton and reassured Yates that such were
not the case
"' Cecil Housley, who voluntarily terminated his employment with the
Respondent on August 16, 1964, was not called as a witness in this
proceeding
11 Yates worked one 8-hour shift and 2 hours of the second when he
walked off the fob
KAYSER-ROTH HOSIERY CO. 393
to rid itself of Yates for any reason involving his union ad-
vocacy, the Respondent would have done so during the
90-day probationary period rather than waiting until it
had expired.93It had such an opportunity on or about July
20 when, with no obligation on its part, it offered Yates
Keylon's machine temporarily with the possibility, as ex-
pressed by Yates, that "maybe they would have a job
opened inside of 2 weeks." Even after the 90-day period,
when the Respondent had no machine open of the type
upon which Yates had trained, the Respondent again was
in no way obligated to offer him a job, but did so to the ex-
tent of letting him try the tubing machine. For these
reasons, and on these facts, coupled with the additional
fact that there is no other evidence indicating that
Housley, in refusing to spend his time or to assign
someone else in instructing Yates during his brief as-
sumption of the tubing machine operation,94 did so
because of union considerations or for the purpose of
forcing Yates to quit, I refuse to draw an inference of dis-
criminatory motivation.95
Accordingly, as Yates was not assigned the tubing
machine as asserted by counsel for the Charging Party,
and without regard to whether or not Yates' decision to
leave was, under the circumstances, a prudent one, as ob-
served by counsel for the General Counsel, I find that
Yates' voluntary act in terminating his employment with
the Respondent does not, under the circumstances, war-
rant a holding of a constructive discharge and that the
General Counsel has failed to prove by a preponderance
of the credible evidence that the Respondent in any way
violated Section 8(a)(3) of the Act with respect to Burton
Eugene Yates.
5. Charles Wayne Porter
Charles Porter first went to work for the Respondent
on May 4, 1964, as a dye man on the second shift in the
dye house under Supervisor Wendell Borne.96 On August
21, 1964, Borne noticed that Porter was staggering when
he reported for work on the second-shift at 3 p.m. Before
Borne had an opportunity to speak to Porter, having been
occupied with other pressing matters, Earl Barger, su-
perintendent of the finishing department,97 who also
noticed that Porter was staggering, went over to Borne
and apprised the latter of his observation. When Borne
expressed his opinion that both Porter and employee
Buck Reel, whom he had observed leaving the plant near
his automobile a number of times, were drinking, Barger
asked Borne to check on the situation, and, if he were
convinced that such were the case, to terminate them.
Borne testified that at this point, based upon his inquiry,
it was reluctantly reported to him by another employee,
one Albert Calbaugh,98 that Porter and Reel were, in fact,
drinking liquor from a bottle in the latter's automobile.
Borne then summoned the two employees to his office
where, having smelled a strong odor of drink, he told
them that he was going to have to discharge them for
drinking on the job. When confronted with it, Porter ad-
mitted it and admitted coming to work drunk. Reel asked
to talk with Barger, which Borne by telephone arranged.
Borne, accompanied by Porter and Reel, proceeded to
Barger's office. Once in Barger's office, it was apparent
to the latter that Porter could not even walk straight and
that Reel, although not staggering, smelled of whiskey.99
Both were then discharged by Barger for drinking and
being drunk on the job in violation of the company rule.'
Recognizing the fact that a discharge under these cir-
cumstances could still be a violation of the Act if, in fact,
it were predicated upon a disciminatory motivation, thus
constituting a pretext, I am of the opinion, and so find,
that such is not the case here with respect to Porter,2 and
that Porter's discharge was unrelated to his union activi-
ty.
First, the extent to which Porter had actually engaged
in union activity is subject to some question. Thus, when
asked as to his union activity Porter testified that he
signed a union card, attended union meetings, talked to
union officials from the plant, and signed a union letter
that was sent to the Company. Yet, the evidence reveals
that Porter was not even employed by the Respondent at
the time that the union letters were drafted and forwarded
to the Company, and that Porter's name does not appear
on any of them. Furthermore, Porter admitted that he had
nothing to do with the Union until August, some 2 or 3
weeks before his discharge, that he never saw Borne, who
at that time was an active union adherent, at any union
meeting, and that he did not know whether or not Buck
Reel was in the Union.
There is but one piece of direct evidence, and that I
find to lack credulity, which would attribute employer
knowledge of Porter' s alleged union activity. Reel
testified, after having his recollection refreshed by refer-
93 Yates was hired on February 25, 1964. Subtracting the time from
May 22, when he was injured, until July 20, when he returned from sick
leave, his 90-day probationary period would have expired within 2 or 3
days after he returned and temporarily took over Keylon's machine the
latter part of July.
94 The evidence reveals that the Respondent in no way complained or
found fault with the quantity or quality of work or with the manner in
which Yates was able to operate the tubing machine or that he ran only 5
of the 17 machines in the set.
ss Although one might assume that Yates' activity at the settlement
conference on the day before did not endear him to Roberson and, in fact,
would give rise to a suspicion concerning an alleged discnminatees' ter-
mination were this a discharge situation and under different circum-
stances, this fact does not warrant a different finding. See Southwire Com-
pany, 152 NLRB 1594 at 1595.
96 Prior to the advent of the Union , Wendell Borne had been in charge
of the dye house, but without authority to hire or fire. He thereafter
became active in the Union, attending union meetings and talking union.
Subsequently , Borne was discharged , and, pursuant to the August settle-
ment agreement , was paid $250 and immediately reinstated to his old posi-
tion.
94 Barger , 2 weeks earlier on August 4, 1964, had been hired as superin-
tendent of the finishing department , replacing Freeman Looney who had
been relieved of his duties on July 31 . Barger remained with the Respond-
ent in this capacity until April 21, 1965, when he left the Respondent and
was, in turn, replaced by Bill Ewing.
93 Albert Calbaugh was one of the discrimmatees who was dicharged on
August 27, allegedly for theft of company property. Calbaugh, however,
was not called as a witness and, pursuant to the General Counsel's request
at the hearing , the 8 (a)(3) complaint allegations as to him were dismissed.
ss The above factual recitation is taken from the creditable testimony of
Borne and Barger. Except for the crucial denial by Porter and Reel that
they were drinking on this occasion , which denial by each I do not credit,
there is no material inconsistency in the testimony of thus matter.
' The printed rule reads as follows
6 DRINKING-The possession or consumption of intoxicating
liquors , wines, or beer on company property or reporting for
work under the influence of or with the odor of same on breath is
not permitted.
x For reasons which will become apparent , Reel's case is discussed
hereinafter in connection with other discharges on August 27, involving
theft of company property.
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ring to a pretrial affidavit, that during a conversation with
Borne on August 18, the latter asked him if Porter had
joined the Union yet, to which Reel assertedly replied,
"Yes, sir, I think he has, I believe he did." Borne, who
was called as a witness for both the General Counsel and
the Respondent, and whom I found to be a creditable wit-
ness, denied that he asked Reel such a question, or that
Reel told him that Porter had signed a card. Furthermore,
Borne, who was himself at that time active in the Union,
having been reinstated by the Respondent only a few
days earlier, credibly testified that he knew most of the
employees who had joined the Union and that Porter was
not one of them.3 The evidence further shows that no su-
pervisor had ever spoken to Porter about the Union, and
that Porter, in turn, had at no time ever spoken to a super-
visor concerning the Union. Nor may company
knowledge of Porter's union activity be inferred through
surveillance of union meetings for there is neither
evidence nor allegation of company surveillance continu-
ing after the initial April union organizing campaign.
There remains one factor which, absent an explanation,
would cause a suspicion on the propriety of Porter's
discharge. The fact that Reel and others in the dye house
had, on occasion, been drunk before, in violation of the
rule without incident would, in itself, warrant a finding of
condonation.4 However, as alluded to elsewhere herein,
the Company had been tightening up on the enforcement
of its rules, including its rule against drinking, and Barger,
as the new head of the finishing department, was directly
responsible therefor. Under all the circumstances,5 I find
that the General Counsel has not proved by a preponder-
ance of the ctedible evidence that Charles Porter was
discriminatorily discharged in violation of Section 8(a)(3)
of the Act.
Respondent's Hiring and Leave Policy
Essential to a discussion and resolution of the issues in-
volving the next few alleged discriminatees is an un-
derstanding as to the Respondent's policy concerning the
hiring of employees, and the granting of leave, particu-
larly maternity leave. The credible record evidence sup-
ports the Respondent's assertion that its hiring policy
generally is, and through the years has been, to hire at the
door. In this regard, it appears that when a job opens up,
3 While nowhere directly in issue , I nevertheless credit Borne 's further
testimony that he did not inform the Company as to which employees
were for and which were against the Union. For reasons hereinafter set
forth, I find Buck Reel an entirely unreliable witness whose testimony is
replete with falsification.
4 See S. Swartz, 145 NLRB 45.
5 Cf. The Wm. H. Block Company, 153 NLRB 616, enforcement de-
nied 367 F.2d 38 (C.A. 7), where, unlike the present situation, there was
neither evidence nor allegation that the alleged discriminatee was to any
extent inebriated, and Climate Control Division, The Singer Company,
160 NLRB 765, where, again unlike the facts found herein, substantial
evidence existed clearly indicating that the discharge of the discriminatee,
a union leader whose union activities were well known and in fact the sub-
ject of surveillance , was predicated upon such activity , and that an in-
cident of drinking on the job was but a pretext.
6 This, however , does not occur , according to Roberson, when there are
qualified people then applying for work at the plant.
7 Until the latter part of July 1964, over the years the Company had fol-
lowed a practice whereby, after a baby was 2 or 3 weeks old, the Com-
pany would permit the mother , if able to present a doctor's certificate, to
be given a layoff slip early and before her leave was up, solely in order, that
she could receive unemployment compensation. In July 1964, however,
this practice was discontinued when the Tennessee Unemployment Com-
mission informed the Company of its ruling that a woman employee at-
because someone has quit, gone on leave or for whatever
reason, the word gets out through the employees, and
people, often friends and kin, apply at the office for the
job, generally without the Company having to look for a
replacement. Thus, the Company retains no list of former
or laid off employees from which to rehire or recall, and
vacancies are filled at the Company's employment office
among those who are applying at the time. An exception
to this general practice takes place on occasion when a
supervisor, faced with an open machine or a vacancy,
may remember a former employee and check to see if he
or she is available."
With respect to the Company's maternity leave policy,
Roberson credibly testified that satisfactory employees
who become expectant mothers are given 6 weeks of dis-
ability pay and are granted a 6-month leave of absence or
maternity leave, commencing about 3 months prior to the
expected birth of the child, leaving 3 months after the
birth before she will be considered for reemployment. At
the end of this period, these employees are rehired if, and
only if, a machine or a job is open. In the event that
something is available, she is put back to work. If nothing
is open at the time, she is given a layoff slip entitling her
to draw unemployment compensation.7
Normal procedure under this established leave practice
has been for an employee to apprise the Respondent that
she is pregnant, and in turn, to receive verbal permission
to take the 6-month maternity leave, this confirmed
within a week or two after commencing the leave by letter
setting forth the terminal date of the leave. Subsequently,
after giving birth, receiving a doctor's release, and await-
ing the end of the leave, she will return to the plant where
she will make known her availability for work and will
inquire, either from her former supervisor or from the
receptionist at the employment office, as to whether there
is a job open. In the case of the receptionist," she (the
receptionist) may inquire of her superiors or she may al-
ready be aware of the job situation as to vacancies on that
particular day. In any event, if something is available for
which the woman is qualified, whether it happens to be
her old job or not, she is put to work. If nothing is open at
the moment, she is automatically laid off for lack of work
and is given her layoff papers by the receptionist so that
she may collect unemployment compensation.9 To the
tempting to return from maternity leave before her leave was up, would be
considered a voluntary quit, therefore rendering her ineligible for unem-
ployment compensation.
3 To the extent that this was not resolved on the record , I am of the
opinion and so find that Peggy Austin 's functions as the Respondent's of-
fice receptionist are such as to classify her as an agent of the Respondent
for the purpose of accepting and transmitting messages and employee
requests for reemployment Any testimony that was permitted subject to
such a finding is hereby received.
9 Employee Dons Smith, a witness called by the General Counsel to
testify with respect to her experience in taking maternity leave, cor-
roborated testimony of the Respondent as to certain aspects of its mater-
nity leave policy. Thus, she testified that she had never known an em-
ployee returning from leave to bump another employee, and that it does
not happen. She further testified that the Company does not hold jobs
open for people on leave, that when a person comes back from leave, "if
there is a machine open , they get it," and if there , is not, "they get
nothing." General Counsel witness, employee Jewell Toole, testified that
it was a common thing for employees to come back from maternity leave
and to be informed that there was no work available fpr them Thus, the
testimony of a number of General Counsel witnesses , including Betty
Pritchett, Jewell Toole, and Doris Smith is generally corroborative of
Roberson's testimony as to the established leave policy of the Respond-
ent.
KAYSER-ROTH HOSIERY CO.
extent that jobs are not held open or that openings are not
guaranteed to employees returning from maternity leave,
this same practice is adhered to with respect to all kinds
of leave.
Without attempting to pass upon the wisdom or
propriety of the Company's hiring or leave policy as out-
lined above, in view of the fact that the evidence discloses
that such policy had long been in effect and was well
established before the advent of the Union, it cannot be
said, nor is it asserted, that the policy was discriminatory
in its inception or that its terms rendered it so. The next
six alleged discriminatees, and two to be discussed
hereinafter under the 8(a)(3) and (4) violations, are
women employees who were not reemployed following
leaves of absence. Although, with respect to each, the
complaint technically charges the Respondent with un-
lawful discharge on a specific date and a failure and
refusal to thereafter reinstate, the true issue in each case
I find to be one involving the failure of the Respondent to
offer reemployment.
6. Jean Ella Potter
Jean Ella Potter was hired on April 18, 1962, as a
second-shift employee in the sewing department, where
she worked for about 4 months before transferring to the
day shift, where she worked in such capacity for about I
year before again going back on the second shift. While so
employed as a second sewer she went on approved mater-
nity leave the first of January 1964. On January 9, Potter
received the usual confirmation letter sent to maternity
leave employees containing the standard language to the
effect that "we will be expecting you to return to work
August 10, 1964, or 3 months after the birth of your
child," and concluding with the request that, if she should
be unable to work on the above date, she contact her su-
pervisor and discuss the matter with him. While she was
on maternity leave, Potter was active in support of the
Union, having attended union meetings, signed a union
authorization card in May, distributed leaflets at the
homes of employees on an occasion during the last of
June, and distributed leaflets to knitting employees at the
plant gate just prior to the election in November.
After the birth of her child on May 26, Potter, on or
about July 9, went to the plant, was informed by the
receptionist that Parker Bean, her supervisor, had
nothing for her, and, while the receptionist was preparing
a separation notice laying her off for lack of work,
enabling her to draw unemployment compensation,"
Bean, in passing, asked Potter if they were fixing her up,
to which Potter replied in the affirmative.
A few weeks later, which would place it prior to August
10, Potter inquired of Bean at the plant as to whether
there was any work, to which Bean replied that there just
was not anything for her. Potter then went to work for
Donna Knitting Mills. Several months later, on October
16, 1964, Potter contacted Bean, telling him that she had
made good money with the Respondent and that she
10 It is apparent that, although this occurred in July it must have taken
place just before the Tennessee Unemployment Commission tightened up
its reins with respect to permitting employees to receive unemployment
compensation prior to the end of their maternity leave.
11 The above account is taken from the credited and unrefuted
testimony of Potter. Bean did not testify. Roberson, however, denied hav-
ing received a call from Potter I do not credit Potter's vague and undated
395
would like to come back. Bean, in replying that he just did
not have anything, told Potter, "Jean, that's what all the
girls say, but then, why are they causing us so much trou-
ble here?" Bean further stated, according to the
testimony of Potter, that if something did not change they
were going to have to close the mill down. At some point
thereafter, Potter called Bean on the telephone, again ask-
ing for a job, telling him that she would take any shift, do
anything, to which Bean replied that he did not have
anything open in the sewing department, and suggesting
that she call Roberson. Potter followed Bean's sug-
gestion, but Roberson too, told her that he did not have
anything open for her.1 t
Potter is the first of several alleged discriminatees
whose case involves an application of the Respondent's
leave policy. Thus, contrary to the General Counsel's as-
sertion that Potter was refused employment upon her
return from maternity leave, the Respondent maintains
that there was no work for her when her leave was up and
that, in accordance with company practice, she was
separated at that time for lack of work. First, although
Potter was not one of the employees who signed a union
letter in April apprising Respondent of her union senti-
ments, in view of the fact that her activity on behalf of the
Union, including attendance at union meetings, coincided
with the surveillance of union meetings by Respondent's
supervisors, I am of the opinion that an inference of com-
pany knowledge as to Potter's allegiance is warranted,
and so find.
Notwithtanding this finding, it is incumbent upon the
General Counsel to prove that, in failing to put Potter
back to work after her leave was up and upon her applica-
tion, the Company did so because of the Union. To meet
this burden here, I find it incumbent upon the General
Counsel to show either a deviation in its application of the
existing practice or that the Respondent in fact had
openings for which Potter was qualified at any time that
she applied after her leave was up. I find evidentiary
proof of neither. As to the former, substantial evidence,
testimonial and documentary, reveals that employees
frequently are turned down upon returning from leave
because of a lack of work and are separated for this
reason.12 As to the latter, Potter's testimony discloses
that she applied on July 9 and again a few weeks later,'
both times being prior to the termination of her leave, and
accordingly, before she was eligible to return to the Com-
pany. As to the three valid requests by Potter, two of
Bean on October 16 and again thereafter, and one of
Roberson at the same time, she was told that there was
nothing open for her. Apart from any evidence indicating
that on these occasions the Respondent did in fact have
openings for which she was qualified, Roberson testified
without contradiction that no one was hired as a second
sewer, Potter's job, until one was put back on that job a
month before the hearing. Under these circumstances, I
find that the General Counsel has failed to prove by a pre-
ponderance of the credible evidence that Potter's separa-
tion from the Company or the latter's subsequent failure
testimony to the effect that on at least six occasions after the birth of her
child she called Bean about a job
12 Notwithstanding that a reading of the terminology used in the leave
letters warrants an inference that one might expect that a job would be
waiting when the leave was up, substantial credible evidence reveals that
employees generally were aware that such was not the case.
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to reemploy Potter, was violative of Section 8(a)(3) and
(1) of the Act 13
7. Doris Smith
Doris Smith was employed by the Respondent as a first
sewer in the sewing department from June 1962 until
January 3, 1964, at which time she was granted the usual
6-month maternity leave. On this date, Smith, who was ill
and off work, called her floorlady, Rhoda Housley, and
told her that she felt like she could not work any longer
and that she would like to take her leave. As to this con-
versation with Rhoda Housley, Smith testified, "She told
me she thought it would be all right for me to take my
leave then and that [sic] I asked her if, by taking my
leave early I would, it would endanger my job any, would
I have a job when I came back. She said she didn't think
so, it would be all right for me to talk to Mr Bean." Upon
Housley's telling Smith to talk with Supervisor Parker
Bean , Smith called Bean and was told that she could take
her maternity leave at that time. Shortly after commenc-
ing her leave, she received the customary letter from the
Respondent, dated January 8, officially approving her
leave and, as in the case of Potter and others, telling her
that they "will be expecting you to return to work July
13, 1964, or 3 months after the birth of your child."
While on leave, Smith signed a union authorization
card and attended several union meetings, including the
April 16 meeting at Rattan Bridge discussed above with
respect to surveillance. However, unlike many of the
others, Smith did not sign one of the union letters sent to
the Respondent apprising it of prounion sentiments.
The record contains absolutely no evidence reflecting
when Smith's child was born, except that it must have
been after April 16, for Smith, in her testimony relating
to the surveillance incident, alludes to her "condition."
Although Smith's testimony was completely void of
evidence, as was the rest of the General Counsel's
presentation, that Smith at any time ever attempted to
return to the plant or requested work with the Respond-
ent, Smith's separation notice, signed by receptionist
Peggy Austin, dated July 7, 1964, and placed in evidence
by the Respondent, indicates that there was no work
available when she reported back from leave Although
Austin has the authority to give out separation notices
where specifically authorized or in those instances where
she has been previously informed that no openings are
available, there is no direct evidence that Smith asked for
anything but her layoff Slip. 14
In any event, the notice would indicate that if Smith ap-
plied for work it was on or about July 7. which was prior
in time to the July 13 reporting date and therefore, at a
time when, under the Company, she was not yet eligible
for work I find that the General Counsel has failed to
prove by a preponderance of the credible evidence that
Doris Smith was discharged in violation of Section 8(a)(3)
and (1) of the Act.
8 Erma June Keylon
Erma June Keylon was first employed by the Respon-
dent in June 1963, as an elastic sewer in the sewing de-
"See Breckenridge Gasoline Company, 127 NLRB 1462, 1464-65,
Shook & Fletcher Insulation Company, 130 N LRB 519, in 1, and The
Ohio Rubber Company, 152 NLRB 1121, 1123
partment. On or about June 4, 1964, Keylon requested
and was granted a 2-month leave of absence because of
poor health. By letter dated June 4, Keylon was officially
apprised of the Respondent's approval of her sick leave
request, and telling her that she was expected to return to
work by August 3. The letter also directed her to contact
Supervisor Parker Bean in the event that she were unable
to return on August 3, and further suggested that she
keep him advised as to her condition so as not to allow
her sick leave to expire.
On August 3, the day that her leave of absence was up,
she called the plant and talked with her floorlady, Rhoda
Housley, who referred her to Supervisor Bean . She then
contacted Bean and told him that she wanted to return to
work. Bean replied that he did not have anything for her
to do, but that if anything came up he would let her know.
Keylon then received her separation notice. At no time
thereafter did Keylon seek employment with the Respond-
ent or was there further contact between the two.
Keylon testified that she signed one of the union letters
sent to the Respondent in April, that her signature ap-
peared on the same letter which her husband, Glenn
Keylon, had signed, and that they received an
acknowledging letter from the Company addressed to
them. A perusal of the union letters discloses that her
husband signed the first union letter, dated April 11, and
that her name does not appear on it. Also, the Respond-
ent's acknowledging letter in evidence reveals only the
name of Glenn Keylon On the third union letter, dated
April 23, however, the name Judy Keylon appears, and,
from a layman's viewpoint, the signature appears almost
identical to Erma June Keylon's signature appearing
elsewhere in evidence I found Erma June Keylon, like
Doris Smith, a most honest and credible witness,
refreshingly so. Based solely upon her testimony that she
signed a union letter, I find that this she did.
On these facts, however, I cannot find that Keylon was
discriminatonly discharged as alleged, or that the
Respondent unlawfully refused to reemploy her at the
end of her leave. There is no evidence that at the time of
her request there was an opening for an elastic sewer or
any other position Keylon might have been qualified to
fill Furthermore, the record shows that 2 weeks later
another elastic sewer was laid off for lack of work, and
two more much later on, with no hires for the job. I find
the Respondent's treatment of Keylon to have been in
keeping with its policy in this regard, and that the General
Counsel has failed to prove by a preponderance of the
credible evidence that the Respondent violated Section
8(a)(3) and (1) of the Act with respect to Erma June
Keylon.
9 Noreen Nash
With the exception of 2 or 3 days in 1962, Noreen
Nash commenced her employment with the Company in
September 1963, and worked continually as a slitter in
the sewing department on the second shift, under Super-
visor Parker Bean and Floorlady Ann Thurman, until
February 20, 1964. At that time, upon her request, Nash
went on maternity leave and, shortly thereafter, received
from the Company the usual letter officially granting her
" The practice had been prevalent whereby maternity employees
would request a layoff or separation slip in order to collect unemployment
compensation as long as possible rather than to work and pay babysitters
KAYSER-ROTH HOSIERY CO.
the leave and indicating that the Company "will be ex-
pecting you to return to work October 26, 1964, or 3
months after the birth of your child." It further requested
Nash, in the event that she should be unable to work on
October 26, to contact Bean . During the period that
Nash was on leave, she signed a union authorization card
in April and attended one union meeting about the same
time.
Nash gave birth to her child on July 16. She telephoned
the plant 3 or 4 weeks later and talked with receptionist
Peggy Austin. In reply to her question as to openings,
Austin told Nash she did not think there were any, but
that she would check. Nash testified that she (Nash)
probably was supposed to have called back. In any event,
a couple of weeks later, having sought and received her
doctor's release and desiring to return to work early,
Nash visited the plant where she talked to Earl Barger,
finishing division superintendent. Nash told Barger that
she needed a job and would work at anything, to which
Barger replied that he could not hire her in the finishing
department because it would hurt her mother, but that he
would talk to Parker Bean to see if he had any openings."
A couple of weeks later, which would place it around the
middle of September, Nash went back to the plant and
talked with Bean. Nash asked Bean for a job and was told
that there were no openings at that time. Nash then told
Bean that she believed that there were two slitters' tables
empty. Bean then reported that Nash's work record was
bad and that she had been absent a lot. Nash
acknowledged this fact,16 and after explaining her trouble
carrying her child, asked Barger if the reason why he
would not take her back was because she had signed a
union card. Nash testified that Barger merely looked at
her for awhile and asked her, "What made me do it?"
When Nash said she thought it was the right thing to do
and then asked him if that was the reason he would not
hire her back, Barger "brought up the fact that I couldn't
draw my unemployment until my leave of absence was
up." Nash told Barger that she was already aware of this,
and Barger told her to come back when her leave was up
and get her separation papers.17
On October 26, or thereabouts, when her leave was up,
Nash went by the plant and asked for her separation
notice, and was told by the receptionist that Roberson
would have to sign it and that he was not there at the time.
According to Nash, she never went back for the separa-
tion papers or again sought employment with the
Respondent.
Nash admitted that after her talk with Bean in early
September, and several weeks prior to the expiration of
her leave, she obtained employment with another em-
ployer, Old Dominion Box Company. Nash further ad-
mitted that at no time thereafter did she apply for work at
the Respondent. In this regard, Roberson testified that,
after having been apprised by Bean in early September
15 Barger's version is that when Nash applied to him for a job, he told
her he had no openings in the fnislung division and suggested that she try
the knitting division under Everett Roberson where she was employed be-
fore as a slitter. According to Barger, when Nash insisted further, Barger
stated that because her mother , who is Barger's aunt , was related to him
it would be bad for him to also put her to work in his division, because of
the talk around town that the Company was loaded up with relatives
10 Earlier Nash testified that she had been sick for months prior to tak-
ing her maternity leave.
17 The above conversation is taken from the credited and unrefuted
testimony of Nash
397
that Nash had sought reemployment before her leave was
up, the Company received a request for a reference on
Nash from Old Dominion Box Company around the first
of October. According to Roberson, Nash was given a
satisfactory reference from the Respondent, and was, in
turn, hired by Old Dominion Box Company, at which
time, October 7, Nash was separated from the Company.
Her separation at that time was required under a com-
pany policy based upon the fact that, otherwise, the
Respondent would be carrying insurance on employees
working at other companies.
As it is undisputed that Nash at no time reported to
work or sought employment after her leave terminated,18
and in fact, was employed elsewhere at such time, and
that Nash was separated by the Respondent upon learn-
ing of her other employment under an existing practice,
I find no basis upon which to infer discrimination with
respect to Nash.19 Accordingly, I find the General Coun-
sel has failed to prove by a preponderance of the credible
evidence that Noreen Nash was discriminated against
within the meaning of Section 8(a)(3) and (1) of the Act.
10. Shirley Shaver Wilkey
Shirley Shaver Wilkey was employed by the Respond-
ent as a production department clerk in the Respond-
ent's office from July 1962 until November 1, 1963,
when she went on maternity leave. By company letter,
dated November 18, 1963, she was told that the Respond-
ent expected her to return to work May 1, 1964, or 3
months after the birth of her child, and that if she were not
able to return on the above date, she should so advise her
office manager, Jerry Ward.
A child was born to Shirley Wilkey on December 27,
1963, and 2-1/2 months later, on March 4, 1964, she con-
tacted Ward, asking him if she could return to work, to
which Ward replied that he had no openings and sug-
gested that she check back with him on May 1. Wilkey
then asked for and received her separation slip, entitling
her to draw unemployment compensation. Subsequently,
toward the end of April at a time when her leave was
about up, Wilkey contacted Ward, who toad her that they
were going to hire in June. Wilkey asked him if she could
have a job, to which Ward replied that he did not know,
but he was going to have some typists tests, that if she
qualified she could have a job, and that she should check
back with him.20 Wilkey checked back in July, and was
told by Ward that he had hired a girl to fill the typist open-
ing, but for her to keep in contact with him. So far as the
record shows, Wilkey did not thereafter make any further
attempt to secure reemployment at the plant, nor was she
contacted by the Company.21
The record further shows that, prior to leaving in
November, Wilkey trained a replacement for her posi-
tion, and that her replacement was so employed at all
iS The fact that two slitters were hired dung September prior to the
time when Nash would have been eligible to return does not have a bear-
ing on the matter, for, as is abundantly clear from the record , it was a com-
mon occurrence for the Respondent to replace people on leave
19 Nor am I of the opinion that Nash 's conversation with Bean in early
September warrants an inference of futility as to Nash's reporting to Bean,
as set forth in her leave letter , upon the termination of leave and at that
time requesting a job.
20 Wilkey's functions as the production clerk were confined to making
out production tickets, and did not include any typing.
21 The above account is taken from the credited testimony of Wilkey.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
times that Wilkey sought reemployment. The record also
shows that, until just before the opening of this hearing,
no person had been hired to fill a position of production
clerk
Wilkey, by her own admission, at no time joined the
Union , attended any union meetings, or engaged in any
union activity. The General Counsel's position, as articu-
lated at the hearing, is that "but for her husband's union
activities she would have been reemployed ... would
have been recalled." The record in this regard, shows that
Shirley Wilkey's husband, Clayton Wilkey, although a
signatory to a union letter in April, was still employed by
the Respondent and played absolutely no part in matters
relating to this proceeding. The one piece of evidence, if
credible, that conceivably could provide a discriminatory
motive concerns the testimony of Perry Wilkey, Shirley's
father-in-law. Perry Wilkey testified that about the last of
April or the first of May he had a conversation with Char-
lie Kelley, then supervisor of Clayton Wilkey. According
to Perry Wilkey, because his son had not known whether
he had done the right thing in joining the Union, Perry
Wilkey asked Kelley what his son could do to get out of
the Union, to which Kelley replied that he should tell him
to forget about it or try to get his card back Later on in
the conversation, Perry Wilkey asked Kelley, "Would
they take Shirley back," and Kelley allegedly said, "No,
not [sic] because Claymanjoined th^ Union "
Charlie Kelley, no longer a supervisor and apparently
a very ill man, testified from his bed in the hospital at the
close of this hearing. He testified only to this matter. Kel-
ley's version, which I credit, is that on this occasion Perry
Wilkey approached him on the street in downtown
Dayton and inquired generally as to the Union at the
plant, and then queried, "Oh yes, I wonder why they
haven't put Shirley . . back to work " Kelley replied that
he did not know that she was not working, to which Perry
Wilkey replied that he thought it might be because
Clayton signed one of those cards and sent it in When
Kelley expressed surprise, Perry Wilkey said, "Yes,
someone must have put the pressure on him." Kelley
testified that he did not know that Clayton had joined the
Union until Perry Wilkey told him on this occasion.22
Apart from the fact that Clayton's union sentiments had
only a few days before been made known to the Respond-
ent, raising a question as to why Perry Wilkey would
think that the Respondent had been refusing to recall
Shirley because of Clayton 's union activity, I refuse to
credit Perry Wilkey's testimony over that of Charlie Kel-
ley, whom I felt testified in a most forthright and honest
manner
Thus, it appears that Shirley Wilkey engaged in no
union activity, that her job was permanently filled, and
that at no time when she applied following her leave were
there openings for which she was qualified. On these facts
I find that the General Counsel has failed to prove by any
stretch of the imagination that Shirley Wilkey was dis-
criminatonly discharged or refused reinstatement by the
Respondent in violation of Section 8(a)(3) and (I u) of the
Act 23
11. Bobbie Sue Dunn
Bobbie Sue Dunn was employed by the Respondent on
August 7, 1963, as an inspector of leotard legs in the in-
specting department . During the 1964 spring union or-
ganizing campaign Dunn attended union meetings , signed
a union card , and was a signatory to one of the union let-
ters sent to the Respondent. On or about September 3,
1964, Dunn asked Parker Bean , her supervisor, for a 2-
week leave of absence to take care of her sick child
because she had no babysitter . Bean told her that he was
not allowed to give her a leave for this reason, but that he
would give her a 30-day sick leave, which he proceeded
to do. By a form letter dated September 3, Dunn was offi-
cially apprised of her leave and told that she was expected
back to work by October 5. It also requested that she
keep her supervisor informed of her condition and that if
she were unable to return to work at the end of her leave
for her to discuss the matter with Bean. Before leaving,
however, consistent with company practice , Bean told
Dunn that he could not hold a machine open for her, and
that if he had an opening when she came back at the end
of her leave he would give it to her.
On the Friday before she was to report back on Oc-
tober 5, 1964, Dunn called Bean to find out whether she
was to report in early, and Bean told her that he did not
have any work for her but for her to come in to the office
before lunch on Monday, not prepared to work. On Mon-
day, Bean told her that he did not have any inspecting
jobs open, that he would give her a separation slip so that
she could draw unemployment, and that he would call her
back when he had an opening on inspecting. Later that
day, after being told at the unemployment office that she
would not be able to draw unemployment,24 Dunn
returned to the plant and advised Bean of the situation
Bean immediately called the unemployment office and
rectified the situation.
At no time thereafter does the record show that Dunn
sought further employment with the Respondent. In early
March, however, when an inspectingjob opened up on an
inspecto-matic machine, after unsuccessfully attempting
to call Dunn by telephone, the Respondent sent word by
her employee husband for her to call the plant. Upon
calling the office, Roberson told Dunn that they had a
machine for her Because Dunn was 6 months pregnant
at the time she was unable to accept 25 In this regard,
Roberson testified without contradiciton that no one had
been hired in the inspecting job prior to calling Dunn back
in March, and that when they sent for her on this occasion
he was not aware of her pregnancy.
Notwithstanding Dunn's union activity the previous
spring and having been interrogated by Supervisor Troy
22 Documentary evidence reveals that, although Clayton Wilkey was
one of those who signed the April 17 union letter , said letter was not
received by the Respondent until April 27 Accordingly, it is quite possi-
ble that Kelley had not previously heard of Clayton's having signed with
the Union
23 Moreover , the complaint alleges that Shirley Wilkey was discharged
on or about October 1, 1964 There is absolutely no evidence , even her
own testimony , with respect to this date or anywhere near it The charge
naming Shirley Wilkey a discrimmatee was initially filed on February 23,
1965. Accordingly, as all matters herein pertaining to Wilkey occurred
more than 6 months prior to the filing of the charge , 1 find that, even if
otherwise meritorious , the allegation pertaining to Wilkey is barred by
Sec 10(b) of the Act
za This was so because , although returning from a leave of absence for
sickness , in fact Dunn had not been out because of her own illness, and
therefore was r.ot in a position to obtain a doctor's release as requested by
the unemployment office
25 The factual account above set forth is taken fron the credited
testimony of Dunn
KAYSER-ROTH HOSIERY CO. 399
Ward on one occasion on June 4, as discussed heretofore
under 8(a)(1) conduct, the record contains no evidence
than an inspector's job was open and needed filling on the
one occasion that Dunn applied for work after her leave
was over. Accordingly, I find that the General Counsel
has failed to prove by a preponderance of the credible
evidence that the Respondent discriminatorily discharged
or refused to recall Bobbie Sue Dunn.
12. Ronald W. Patton
Ronald Patton commenced his employment with the
Respondent on August 11, 1963, working as a knitter on
the I1 p.m. to 7 a.m. third-shift under Supervisor Cecil
Housley, and was so employed until his discharge on Au-
gust 28, 1964. With the advent of the Union in April
1964, Patton became active in its behalf, signing a card,
passing out leaflets, signing up other employees, and plac-
ing his signature on one of the union letters sent to the
Respondent. As alluded to above, on two occasions dur-
ing the middle of April, Patton was interrogated about the
Union, first by Everett Roberson and later, by Leon
Young.
About 5 a.m. on August 28, Patton left his work sta-
tion and went to the restroom. After a short while he
came out and went some 20 to 30 yards past his own
machine and stopped and talked with employee Gary
Keylon who was standing in the main alley at the end of
his machine. After a short stay with Keylon, Patton
headed back towards his work station and stopped again,
about half of the way, where, before returning to his
machine, he engaged employee Jerry Wilkey in a conver-
sation. Thereafter, just before the 7 a.m. end of the shift,
Ralph Mayes, head supervisor of the knitting department,
approached him at his machine and told him that he
wanted to see him in the office before he left. Pursuant to
Mayes' request, at 7 a.m. Patton went by to see Mayes,
during which conversation 26 Mayes allegedly com-
menced by stating "I like the little talk we had about the
Union the other day,"27 and, without interruption, con-
tinued by saying that he had a complaint that he (Patton)
had taken a 13- to 15-minute break. When Mayes asked
Patton if he did not think that he was right on getting on
his back about it, Patton replied that it was right, but that
he had not taken a 13- to 15-minute break.28 Patton ad-
mitted to Mayes, however, that he had gone to the
restroom, and thereafter had gone by and talked with
Keylon and with Wilkey. Patton testified that at this point
"I told him that I wasn't the only one that took those-
took a break, even if it was 13, 15 minutes, but I didn't
say I took a 13, 15 minute break because I hadn't, but I
said I wasn't the only one that took long breaks. He said
well, tell me who else took long breaks like that, and I told
him well, I'm not going to tell you who takes them. That's
all I recall." On cross-examination, however, he did recall
more, and freely admitted that Mayes then told him that
he was going to have to let him go, to which Patton
replied that he could knock hell out of him. At this point,
Mayes asked him if he wanted to talk with Roberson, and
upon receiving an affirmative reply, the two of them went
to the latter's office. Mayes, before Patton entered, told
Roberson that he wanted him to talk with Patton, that he
was taking too long for specific breaks, and had
threatened him with physical assault. When Patton en-
tered the office, Roberson confronted him with having
made one of his breaks that night a 15-minute break,
which Patton admitted, and accused him of going to other
employees' alleys, specifically those where Keylon and
Wilkey worked, and talking with them. When Patton ad-
mitted the fact, Roberson asked him if he had not been
told to limit his breaks to 5 minutes and to not go into
other alleys and talk to and bother employees. Patton ad-
mitted that he had been told these things, but countered
with "well, you didn't put these damn silly ass rules in
there until the Union came." When Roberson queried
him on this, Patton continued by stating that "these are
just silly ass rules for anybody to go by. You don't have
to worry about working out there. All you do is sit back
behind the desk. You don't have to worry about your job.
I have got to work out there and they are just silly ass
rules to go by." At the close of Patton's discourse, Rober-
son said, "Well, Ronnie, with an attitude like that, you
don't leave me any source [sic] but to discharge you,"
which Roberson proceeded to do.29
The Respondent asserts that the discharge of Patton
was based on his willful refusal to abide by the company
rules coupled with a continued poor attitude on his part
including the threat of physical assault on Mayes. Apart
from the overall necessary allegation of discrimination, it
remains slightly confusing as to the position taken by
counsel for the General Counsel with respect to Patton.
Based upon the testimony elicited by him from several
witnesses, and particularly from Patton himself, it ap-
pears on one hand that the General Counsel is asserting
that the Company remained lax with respect to the en-
forcement of its rules, particularly those pertaining to the
taking of breaks and talking with other knitting room em-
ployees at their work stations until the date of Patton's
discharge on August 28, and that then, for the first time,
said rules were discriminatorily applied to Patton. On the
other hand, other testimony elicited by counsel for the
General Counsel, some of which came from the same wit-
nesses, would indicate that the change in such rules
and/or the enforcement of them occurred at the time that
the Union arrived on the scene, which was some 5
months earlier. I assume the former to reflect the correct
position.
In this regard, Patton testified on direct examination
that up to the time of his discharge in the knitting machine
area, you could go in anybody's alley (knitters worked in
21 Notwithstanding the lack of credence I place in Patton 's testimony,
because Mayes was not called as a witness (until the record was
reopened), the recitation of facts as to this conversation is taken from Pat-
ton's unrefuted testimony , mostly on cross-examination
27 This reference appears to have been to the early August conversation
testified to by Patton and alluded to earlier herein in connection with
8(a)(1) conduct, wherein, Mayes approached him at his machine and
asked him how the Union was getting along, volunteered the fact that he
had seen some of the union men downtown that day, and stated to him that
"I don't care who joins the Umon or what the Umon does , all I want is a
good 8 hours work out of somebody."
11 On cross-examination, however, Patton testified that he could not re-
call whether or not he admitted to Mayes to having taken a 13- or 15-
minute break.
29 The facts relating to this conversation are taken from the testimony
of Roberson and of Patton on cross-examination. While the quoted
material is that of Roberson , most all of the pertinent testimony was either
specifically corroborated , or not denied, by Patton when questioned on
cross-examination. The one exception is Patton's continued denial that he
took as long as a 15-minute break on that particular night Patton, how-
ever, as noted above, could not recall whether he had admitted this fact
earlier to Mayes, and did not deny having taken 15-minute breaks at other
times, testifying merely that "I didn't time myself."
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rows of knitting machines referred to as alleys), and could
talk to anyone around his machine and nothing was said
about it, that, in fact, during the whole year he worked
there, three or four times a night Patton, James Calbaugh,
and Wendell Anderson would sit around a little table and
talk for 15 or 20 minutes at a time.
Patton further testified that before the Union came in
no supervisor had ever talked to him or scolded him about
taking too much breaktime, but that, right after the advent
of the Union, in May, Housley came around and told
everybody not to take over 5 minutes for a bi eak and that,
from that point on, they would not be allowed in any-
body's alley. Patton testified that after these instructions
by Housley were given, employees were not supposed to
go in other people's alleys, and that "we tried not to take
over 5 minute breaks." At another point in his testimony,
however, Patton stated that employees, including himself,
did not obey these instructions and, up until his discharge,
no one complained to him about it. Patton admitted that,
about I month before his discharge, Mayes told him that
employees were allowed 5-minute breaks but not to take
too many of them. Patton, who, on one occasion, violated
a company rule prohibiting the use of profanity in the
plant, admitted that he had been reprimanded a number
of times by the Respondent and admonished to stay
within the rules.
Thus, the record bears out the Respondent's assertion
with respect to this employee. Indeed, Patton's testimony
alone reflects his past refusal to abide by the rules as well
as his defiant attitude toward supervision generally.30
With respect to the latter, on one occasion in April, when
his supervisor, Housley, talked to him concerning some
bad work, which Patton testified that he "could not see,"
and Housley asked him if he wanted him to write an offi-
cial reprimand, Patton replied that he did not care
whether he did or not. His indifferent attitude toward
company rules is exemplified by his testimonial admis-
sion that he told Supervisor Mayes that company rules
were set up to hurt people, that they were established in
order to get at people, and that they were silly rules
governing the conduct of employees.
I find that, in taking more than 5 minutes for a break
and by visiting other employees at their work stations and
while they were operating their machines on the night of
his discharge, Patton violated company rules,31 and that,
in threatening physical assault upon Supervisor Mayes,
coming as it did without provocation,32 Patton acted
completely outside the bounds of propriety.
Mindful of the fact that Mayes raised the subject of the
'Jnion with Patton some several weeks before the
discharge incident, and that he made reference to it on the
night in question, I am not prepared to infer from this that
Mayes was discriminatorily motivated in deciding to
discharge Patton. Although the brief, one-sided conversa-
tion in early August commenced with Mayes unlawfully
inquiring as to how the Union was getting along, it con-
cluded by Mayes venturing his thought that he did not
care who joined the Union or what the Union did as long
as he received 8 hours of work "out of somebody." In
view of a total lack of evidence of any other union state-
ment having been made by Mayes to Patton at any other
time, coupled with Patton's admission as to his practice
of taking lengthy and numerous breaks and Mayes' earlier
directive to him to limit his breaks to 5 minutes, I choose
to hold that Mayes' statement was intended as an ad-
monishment to Patton to put in 8 hours of work rather
than as support for an inference of discriminatory motive.
Under all of the circumstances, I find that the General
Counsel has not proved by a preponderance of the credi-
ble evidence that Ronald W. Patton was discharged in
violation of Section 8(a)(3) of the Act.
Moreover, even if I had found that the facts supported
the 8(a)(3) allegation, I could not have recommended the
usual reinstatement order with respect to Patton. During
the sixth day of the hearing, prior to Patton's having
testified herein, and just before reconvening following a
5-minute recess, counsel for the Respondent indicated to
me that Patton had approached the counsel table, and, in
his presence, threatened one of his witnesses who was
sitting at the table with assault . Upon reconvening the
hearing, I called Patton as my witness , and in reply to my
question , Patton freely admitted having said to Clayton
R. Strictland, "I will get you if it is the last thing I ever
do."33 Apart from the seriousness of this conduct and the
fact that it would appear to be violative of a Federal
statute prohibiting intimidation of witnesses in a proceed-
ing before a federal agency,34 an off-the-record admonish-
ment by me did not seem to have any effect whatsoever
on the boy Thus, were my basic finding otherwise, I
could not in good conscience have required the Respond-
ent to reinstate this employee.
13. Calvin Creekmore
Calvin Creekmore was hired by the Respondent in Oc-
tober 1963, and put to work as a packer on the first shift
in the shipping department. He was discharged in April
1964, called back a week later, and thereafter continued
his employment with the Respondent until his final
separation on September 2, 1964. Creekmore had been
active in support of the Union, having solicited signatures
on union cards, visited employees in their homes, at-
tended union meetings , and, in April, prior to his first
discharge, having signed a union letter sent to the
Respondent.
According to the testimony of Creekmore, about 2:45
p.m. on September 1, his foreman, Oliver "Bud" Young,
3" Based upon my observation of this witness, it was readily apparent to
me that he displayed the same attitude on the witness stand and in the
courtroom that the Respondent asserts was a basis for his discharge See
A J Sackett and Sons Co , 139 NLRB 1272, 1277
31 1 further find the earlier implementation of such rules to have been a
necessary correction of existing evils (witness Patton 's admission of tak-
ing three or four i 5- to 20 -minute breaks every night during the year of his
employment), and not motivated by union considerations
32 Contrary to the usual or certainly more common situation involving
an employee threat to his supervisor or a company official , Patton 's threat
to Mayes , although occurring after Mayes told him that he was going to
have to let him go , did not come about as a result of a heated argument
Nor was it accompanied by flaring tempers or uttered in a fit of anger
11 The record contains considerable testimony concerning Stnctland
and the part he played as an agent for the Mark Lipman Service, Inc , de-
tective agency investigating theft in the plant According to counsel for the
Respondent, however , Stnctland, became violently ill during the hearing,
requiring extended hospitalization , and therefore was never called upon to
testify
" 18 U S C A Sec 1505, provides in part
Whoever corruptly , or by threats or force, or by any threatening
letter or communication, endeavors to influence , intimidate, or im-
pede any witness in any proceeding pending before any department
or agency of the United States
Shall be fined not more than $ 5,000 or imprisoned not more than
five years , or both
See Ricev US, 356F2d709(CA 8)
KAYSER-ROTH HOSIERY CO. 401
approached him and asked if he would work overtime, to
which Creekmore replied that he had already made plans
for that afternoon. Young asked him what they were, and
Creekmore told him that he planned to go to a meeting.
When Young asked what kind of meeting, and was told
that it was a union meeting, Young said he did not know,
that he was in no position to grant him permission to be
off from overtime, that he would have to see Earl Barger,
the finishing division superintendent. Young returned just
before the shipping department shift ended at 3:30 p.m.,
and told Creekmore that Barger had refused to grant him
permission to get off from overtime.35 With that, Creek-
more left. The following morning, after having attended
the meeting of the Union, Young met Creekmore at the
back door, and handed him his separation notice, his
check, and some petty cash. Young told Creekmore that
he wanted him to know that, like the first time he was
discharged, he (Young) had nothing to do with it.
Employee Joe Pritchett, a witness for the General
Counsel, testified that on the day in question, after Young
came out and told him and another employee who was
nearby, "Boys, we have to work over today," Young
went over to Creekmore and told him the same thing. Ac-
cording to Pritchett, Creekmore replied that, "I can't
work over, because I have to go to a union meeting."
When Young told him he would have to see Earl Barger,
Creekmore answered, "You better get him out here
then."
Earl Barger, who in his short tenure with the Company
as finishing division superintendent, admitted that this
was the first time that he had ever directed an employee
to work overtime and the employee had refused, and also
the first time he had discharged an employee for refusing
to work overtime, testified without contradiction that on
the day in question he had apprised Young of the need for
the shipping department to work overtime and that about
10 a.m. on that day Young told him that Creekmore had
told him that he would not work over, that he was going
to a union meeting. When Young asked Barger what he
should do, Barger, who was new with the Company, said
he did not know legally what to do, that he would let
Young know.
According to the unrefuted testimony of Carlysle Isley,
vice president in charge of public and industrial relations,
and headquartered in Burlington, North Carolina, Barger
called him at his Burlington office around 10 a.m. and re-
lated the Creekmore problem to him. Upon ascertaining
from Young that he needed the whole department to work
overtime,36 and in reply to Barger's inquiry as to what he
could do, Isley told Barger that if Creekmore refused to
work along with the other employees, he could be
discharged. Isley told Barger to contact Creekmore and
the others in the department to make sure that they un-
derstood that they were to work overtime that day. That
afternoon around 2 or 2:30 p.m., as testified to by Barger,
he talked with Young again and told him that they needed
Creekmore to work, and to advise him that if he refused
to work over he would be discharged.
Based upon the record as a whole, I find the facts sur-
rounding Creekmore's refusal to work overtime and his
subsequent discharge to be as testified to by Barger,
Isley, and employee Pritchett,37 all of whom impressed
me with their candor while testifying.38
While the record, particularly Barger's testimony, in-
dicates that Creekmore's discharge was the first involving
a refusal to work overtime, Pritchett, testifying for the
General Counsel, testified that normal procedure for
working overtime was for Young to come around during
the day and inform the employees that they had to work
overtime that day, that of the six or eight times that he
had not worked overtime when such was scheduled, vir-
tually all of them were because of illness in the family and
he had been given express permission to be off from over-
time, and that, at no time, he had ever taken off after hav-
ing been told not to, nor had he heard of this ever happen-
ing except in the case of Creekmore. Creekmore, himself,
testified that, although there had been occasions when he
had not worked overtime when there was overtime to be
worked, he had never before September 1, refused an
order to work overtime and that he had never refused to
work over when his request not to do so had been turned
down.
Thus, it is readily apparent that the discharge of Creek-
more falls squarely within the Board's holding in the Swift
Company case,39 and that Creekmore's refusal to work
overtime after having been denied permission to be off
constituted an attempt to work on terms prescribed solely
by himself, a valid ground for discharge 40 Pure and sim-
ple, the above facts disclose that the Respondent had
been working the shipping department overtime for at
least a week and needed the whole department again on
the day in question , that Creekmore, along with the other
department employees, was told that he had to work over,
that Creekmore made known his intention not to work
over because of a union meeting'41 and that, when told
that he was needed and could not be off, Creekmore dis-
obeyed the directive and took off anyway. Under these
circumstances,42 the fact that Creekmore had been one of
the more active of the union adherents does not in any
way override the Respondent's justifiable ground for the
discharge. One's past activity on behalf of a union cannot
immunize an employee from managerial control or
31 Initially Creekmore testified that when Young returned he told
Creekmore that he could go ahead if he wanted to. On cross- examination,
however, he admitted that he had testified as herein recited under oath be-
fore a Tennessee Unemployment Commission shortly after the incident
occurred, and that this was the fact.
36 The record amply demonstrates that the department had been work-
ing overtime for quite a while and continued to do so for some time
thereafter. In this regard, Pritchett testified that the department worked 4
days the week before and several days immediately thereafter.
37 Because of Creekmore's changing his testimony on a very crucial
matter concerning his case , i.e., as to whether he had been given permis-
sion to leave, I cannot and do not give it credence to the extent that it con-
flicts with other credited testimony.
38 Although Pritchett did not indicate what time during the day it was
that Young initially apprised them of the need to work over, in view of
credited testimony of Barger and Isley as to this incident , I find it oc-
curred during the morning and not just before the end of the shift as
testified to by Creekmore.
39 John S. Swift Company, Inc, 124 NLRB 394
40 C. G Conn, Ltd. v. N.L.R B., 108 F.2d 390 (C.A 7); N.L.R.B. v.
Mt Clemens Pottery Company, 147 F.2d 262 (C.A. 6); L. W. Scott dlbla
Scott Paper Box Company, 81 NLRB 535, 546-548; Valley City Furni-
ture Co, 110 NLRB 1589, 1592-96
41 There is no evidence that the Respondent had knowledge of a union
meeting at any time prior to asking Creekmore and the others to work
overtime.
42 Cf. Dow Chemical Company, 152 NLRB 1150, wherein the Board,
in adhering to the general principle here controlling, distinguishes this
situation from that involving a refusal to work overtime where the practice
has been to have employees volunteer for overtime work.
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
properly found disciplinary action."; I find that Calvin
Creekmore was discharged on September 2, 1964, for
cause and, as the General Counsel has failed to prove
otherwise, shall recommend that the 8(a)(3) and (1) al-
legations as they pertain to Calvin Creekmore be
dismissed.
14. Mary Francis Bowen
Mary Bowen was employed by the Respondent in
April 1964, as an inspector of knee socks in the toe seam-
ing and inspecting department under Floorlady Charlotte
Dotson and Supervisor Parker Bean. She worked in this
capacity until her discharge on September 22, allegedly
for using profanity on the job in the presence of other
women employees. A couple of months after Bowen
started with the Respondent she signed a union card and
"talked to other employees about signing a union card."
According to the uncontradicted testimony of Bowen,
she did not work on Monday, September 21, because she
was ill, and when she went to work on Tuesday, Dotson
approached her at her machine and told her that Bean
wanted to see her in his office. Thereupon, Dotson and
Bowen went to Bean's office, where Bean told her that he
was turning her loose. In reply to Bowen's inquiry, Bean
told her it was for using profane language. Bowen
protested that she did not remember using any, and Bean
told her that she had, that she had been a good worker and
that he disliked turning her loose. When Bowen asked
him for a separation slip, Bean refused, telling her that it
would not help her any.
Everett Roberson testified that on Friday, September
18, Parker Bean reported to him that Floorlady Dotson
had had complaints from a number of girls who worked
near Bowen to the effect that she was using very foul and
profane language in their presence, to which they ob-
jected. Based upon this report, Roberson instructed Bean
to investigate and to talk with the girls about the matter.
Bean , on the following Monday or Tuesday, reported
back telling Roberson that he, along with Dotson, had in-
vestigated and that Lena Rose Clark, Ilon Ward, Ruth
King, and Nei Reed all accused Bowen of using foul and
filthy language, some of which they related and others
they would not, that they did not appreciate it, and that
they wanted to be moved. Upon ascertaining from Bean
that he was sure of his facts and that in his own opinion
"she would continue to use" bad language, Roberson told
Bean to talk to Bowen about it, and that if she admitted to
using the language to discharge her, and if not, to repri-
mand her. On Tuesday, after having talked with Bowen,
Bean told Roberson that she had admitted it to him and to
Dotson, and that he had discharged her
Although neither Bean nor Dotson, the two company
principals in this matter, testified in this proceeding'44 two
of the inspectors working with Bowen did testify as to the
incident. Thus, Lena Rose Clark, who sat side by side
43 The Wm H Block Company v N L R B, 367 F 2d 38 (C.A 7) See
also Metals Engineering Corporation, 148 NLRB 88, 90, and A J
Sackett and Sons Co. 139 NLRB 1272, 1277. for the Board' s holding
that an employee's union activity does not confer immunity from dis-
ciplinary action for insubordination
44 Both were subsequently relieved of their supervisory functions, Bean
on November 4, 1964, and Dotson on March 29, 1965
45 Clark would not repeat these on the stand, but she wrote them on a
paper, and they were then transcribed into the record
46 As in the case of Clark, when examined on this. Ward wrote these
with Bowen, testified that before Bowen's discharge she
talked to Floorlady Dotson about the profane language
that Bowen used. Shortly thereafter, Bean asked her if
Bowen had used profane language and she told him that
Bowen did. Bean asked her what words she had used and
Clark told her two of them were "goddam" and "bitch."45
Clark testified that Bean did not ask and she did not
reveal to him how often she heard Bowen use this sort of
language. Clark admitted that she was peeved with
Bowen because Bowen was picking out good work for
herself and leaving bad work for others, and that she told
Dotson this during her conversation with Dotson. Clark
testified that Bowen used profanity all the time, but that
she never complained to supervision about it before this,
that anyone whom Bowen did not like she referred to as
a "bitch," although not to their faces, but that she (Clark)
had at no time asked to be moved away from her.
The other inspector, Ilon Ward, who worked two
chairs up from Bowen, testified that Dotson had asked
her if she heard Bowen use bad language, and she replied
that she had, that she heard Bowen refer to Clark and to
Dulaney Elsea as "s.o.b.'s" (but not in abbreviated form),
and that Bean later asked her if she heard anything about
Bowen's using profane language, and she told Bean that
she had, but did not tell him specifically what her lan-
guage was. Ward testified that that was all she was asked
by Bean or that she told him. Ward testified that she had
heard Bowen use one other "pretty bad" and "vile" word,
the word "damn,"46 but that, in using it , Bowen did not
direct it at anyone in particular. Ward further testified
that, although she did not like Bowen's using these words,
and that she told Dotson and Bean so when they asked
her, she never complained to a supervisor about Bowen's
language. Later Ward testified that the use of the
word"damn" did not bother her.47
A considerable amount of testimony was devoted to a
note, more precisely, a torn scrap of paper with several
legible words on it, allegedly written by Bowen to a girl-
friend on the Friday before her discharge and found in a
nearby wastepaper basket. At the time, I received this in
evidence stating that I would rule upon its materiality in
this Decision. Bowen denied that this was her doing. In
view of Roberson's testimony that this note played no
part in his decision to discharge Bowen, and that he at no
time discussed it with Bean in connection with Bowen's
discharge, I find it immaterial to the issue concerning the
Respondent's motivation in discharging Bowen and
therefore give it no weight.48 In view of my finding with
respect to this document, I deem it unnecessary to com-
ment further on the testimony pertaining thereto.
In answer to the complaint allegation that Bowen was
discriminatorily terminated from the Company's employ,
the Respondent asserts that Bowen was discharged for
using profanity on the job to which other women em-
ployees had raised complaints. As in all cases involving
allegations of discriminatory discharge, a necessary in-
two quotes on a piece of paper, and they were later transcribed into the
record
47 Ward, who did not corroborate Clark's accusation concerning
Bowen's selecting the best work , testified in a most forthright manner I
consider her a truthful witness.
48 The most that could be said for the scrap document is that, if, con-
trary to Bowen's testimony , it were believed that she were the author, it
would confirm the Respondent 's assertion that Bowen was capable of
using bad language. As hereinafter noted, I find this to be the case without
reference to this document
KAYSER-ROTH HOSIERY CO. 403
gredient is a finding of company knowledge as to the dis-
criminatee's union activity. In this regard, the evidence
discloses that Bowen signed a union card around June
and that she solicited on behalf of the Union among her
fellow employees. Nothwithstanding a contrary state-
ment in her pretrial affidavit, however, it does not appear
that Bowen signed a union letter. Nor is company
knowledge established through her testimony to the ef-
fect that in April, Floorlady Edith Crawley, not proven to
be a supervisor, asked her if she had signed a union card,
and upon receiving a "No" reply, advised Bowen not to
sign because it would go against the mill.
However, in a real effort to establish company
knowledge of Bowen's union sentiments, Bowen testified
that the first time she ever saw Earl Barger, the new divi-
sion superintendent, was on Saturday morning before her
discharge the following Tuesday, September 22. Her ver-
sion of the incident is that at 7 a.m. on this morning, while
the two of them were alone in the lobby of the Rhea
County Hospital, she struck up a conversation with
Barger, although not knowing who he was, by stating that
it was awful early to be drinking a coke but that she was
used to it, drinking one every morning before going to
work. At this point, without conversation by Barger,
Bowen continued by asking , "How is our union coming
at the mill?," to which Barger replied that he did not
know, but that he did not think it would go through.
Bowen allegedly stated that "I think it will because it is
good thing to have and I am all for it." At this, Barger al-
legedly reiterated his opinion, and then asked Bowen her
name, where she worked, who her floorlady was, and
what position she had at the mill. Bowen allegedly replied
with a counterquestion as to his name , and was told that
he was Earl Barger and that he was taking Kelley's place
at the mi1L49
Barger testified that he conversed with Bowen on this
occasion , and that during the conversation, Bowen "won-
dered what was going to happen up there" with the
Union, but emphatically denied that Bowen in anyway
expressed herself in favor of the Union or made it known
to Barger how she felt about the Union. In answer to
further questioning, Barger testified that he was at the
hospital because of his father's serious illness, requiring
surgery on the morning in question , that his father was
not expected to live, and therefore he remained with his
father at the hospital constantly through the weekend and
until the following Monday or Tuesday, and that during
this time he had no telephone conversation with Rober-
son or the plant. According to Barger, sometime after
returning to the mill, a day or two perhaps, he mentioned
to Roberson that he had met one of his slitters at the
hospital, and was told that she had been discharged for
some reason that Barger could not specifically recall.
Even without Everett Roberson's corrobative
testimony as to this matter, I credit fully the testimony of
Barger. Apart from the fact that Barger's employment
with the Respondent had terminated 2 months before this
hearing, thus placing himself in no way to gain by slanting
his testimony in favor of the Company, Barger impresv'ed
me as a very fair and unbiased witness whose demeanor
on the stand left little to be desired. Barger answered
questions forthrightly and without hesitation. I credit his
testimony completely, including the above.59
Notwithstanding the fact, however, that the record
contains no direct evidence of company knowledge as to
Bowen, the record reflects that with time most of those
who were for the Union, even over and above those who
signed union letters to the Company, became known to
the Respondent , or at least , were suspected as favoring
the Union. The testimony of several of the Respondent's
supervisors, at least by inference, bears this out. Ac-
cordingly, I find that the sentiments of Bowen, who ap-
pears to have been less than silent on the matter, became
known to the Respondent sometime between June and
the latter part of September.51
Turning now to the Respondent's defense , I find on the
record that Bowen was perhaps gifted to the use of some
profanity, that on the particular occasion, she was guilty
of using profane language, and that it was reported by
Clark to Dotson and in turn to Roberson. I do not credit
Roberson's testimony, however, where, in reply to a
question concerning earlier complaints against Bowen, he
testified that "the inspectors, I think, have been com-
plaining about it." There is no evidence supporting this.
In fact, the two inspectors called by the Respondent to
testify in support of its discharge of Bowen both testified
that they had never before complained of Bowen's foul
language. On the record, it does not appear to me that the
entire matter was nearly as serious as the Respondent
makes it out to have been. First, while in no way condon-
ing the use of profane language on the part of ladies, the
evidence does not reflect that Bowen was guilty of shout-
ing it or calling others names to their faces . In fact, it
would appear only that, to the extent to which Bowen
used bad words, she did so in a conversational manner.
Secondly, it appears that only Clark registered a com-
plaint against Bowen , Ward testifying that she (Ward) did
not, and with no testimony forthcoming from the other
two named by the Respondent. And even Clark, by her
own admission , had it in for Bowen and let it be known to
Dotson. Thirdly, Clark had never before complained to
management about Bowen 's language and even Roberson
admitted that this was the first time that he had had com-
plaints against Bowen for using profanity . In this regard,
notwithstanding a company rule prohibiting the use of
profanity,52 Roberson testified that male employees were
known to use profanity, and that he could not recall any
previous discharge for using foul language . Finally,
without attempting to substitute my judgment for, that of
the Respondent, it would seem that, without an additional
and an alternative motive, this having been the first such
offense against Bowen, and, in my opinion a relatively
99 Barger had just the month before been hired to replace Freeman
Looney as superintendent of the finishing division , not Elmer Kelley,
who had been the plant general manager.
so Not only do I discredit Bowen's testimony where it conflicts with
that of Barger, because I found Bowen to be most evasive in her reply to
questions and less than forthright while testifying , I do not credit her
testimony to the extent that she denied ever using language of the type at-
tributed to her by Clark and Ward, particularly the latter, or to the extent
that it denies that she had heard of Clark 's having reported her to Dotson,
as credibly testified to by Ward.
si Had Bowen become a union adherent only recently or within a short
time of her discharge, however, on these same facts I would not have
drawn the inference of company knowledge.
12 This posted rule reads
3. CONDUCT- The use of profane, abusive or threatening lan-
guage toward others or fighting or threatening bodily injury to
anyone is prohibited . No running or horse play is permitted.
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
minor one, the Respondent could have at the most moved
Bowen to another part of the area with an admonition to
guard her tongue in the future . In any event , under all of
the circumstances, I feel that the inference is warranted
that the Respondent, in discharging Mary Francis Bowen
on September 22, did so for reasons relating to union ac-
tivity, and that, in so doing, violated Section 8(a)(3) and
(1) of the Act.
15. Kenneth Toole53
Kenneth Toole was first employed by the Respondent
in November 1959, and worked until the late summer of
1960, when he quit. He was reemployed on January 17,
1961, and worked as a machine fixer in the knitting de-
partment until he was terminated on May 16, 1964. Dur-
ing the union organizing campaign just prior to his May
discharge, Toole had been active in the Union, having
signed a union authorization card and one of the union let-
ters notifying the Respondent of that fact, and having at-
tended a number of union meetings and solicited union
support while visiting employees in their homes.
Pursuant to the terms of the August settlement agree-
ment, Toole was reinstated on or about August 13, 1964,
and worked on the second shift under Supervisor Troy
Ward until his second discharge, and the one here in is-
sue, by the Respondent on September 30, 1964. On this
date, before reporting for work, Toole, who had just prior
thereto received through the mail a check from the
Respondent covering backpay under the settlement
agreement, printed on the outside of the large sized en-
velope the words "UNION MONEY-BACKPAY
CHECK," and placed the envelope in his left-hand shirt
pocket in such a manner as to leave some 4 or 5 inches
showing on which the quoted words were clearly visible.
Toole then went to work on the second-shift which
started at 3 p.m. Sometime between 5 and 5:30 p.m.,
while on the job as machine fixer, which function required
him to move throughout the knitting room, Toole al-
legedly was observed by the superintendent of the
knitting division, Everett Roberson, talking with other
employees, one of whom had stopped his machine and
was engaged in laughter. Roberson, who had earlier ob-
served the envelope sticking out of Toole's pocket, went
to Toole after the incident and asked him if it were neces-
sary for him to have the envelope in his pocket. When
Toole replied in the affirmative, Roberson, without
further comment, left and talked with Troy Ward, Toole's
supervisor who was at the other end of the room. Upon
allegedly ascertaining from Ward that he, too, had noticed
employees laughing and talking about the envelope,
Roberson went back to Toole and asked him to either
turn the envelope around or put it in his toolbox (to which
only Toole had a key). Toole replied that he did not want
to do either, and after a second order by Roberson to the
same effect, Toole again said he was not going to do it.
When Roberson asked Toole if he were refusing to turn
it around or to put it in his toolbox, Toole replied that he
was refusing, telling Roberson that he liked it right where
it was. At this point, Roberson told Toole that if he did
not do one of the two, he would have to discharge him, to
which Toole reiterated his refusal to do either. Where-
upon, Roberson suggested that they go and get Toole's
toolbox and his pay. On the way, Toole said to Roberson
"I'll tell you right now, that damn labor board is going to
straighten your ass out this time." When Roberson asked
Toole what he meant, the latter replied, "Well, you can't
fire me like this." Roberson then told Toole that he still
had three choices, to turn the envelope around, to put it
in his toolbox, or to do neither and be discharged. Toole
again refused Roberson's alternative directive and the
two proceeded to the knitting department office where,
after one more time refusing Roberson's request that he
change his mind, Toole was discharged for insubordi-
nation.54
In resolving the issue as to the legality of Toole's
discharge on September 30, it first must be conceded that
Toole's conduct in refusing to obey the instructions of
Roberson consitituted insubordination, and that such
conduct by itself, is or may be grounds for disciplinary ac-
tion, including discharge. Accordingly, the question
posed, as framed by Board law on the subject, concerns
the right of the Respondent to require that Toole cease
"wearing" the printed envelope in the manner above
described, as against the right of Toole to engage in such
conduct. If the Respondent possessed such a right, it
could lawfully discipline Toole for his refusal to obey. If,
however, Toole were engaged in an activity protected
under the Act, the Respondent could not lawfully deprive
him of his right to do so, and therefore, Toole's insubor-
dinate refusal to comply with Respondent's mandate may
not validly be asserted by the Respondent as a basis for
effectuating his discharge.
As the Board and the courts have long recognized the
right of employees to wear and to display union insignia
at work as a reasonable and legitimate form of union
activity'55 and have adhered to the doctrine that, absent
special circumstances relating to the maintenance of
production and employee discipline, interference with
such activity is presumptively invalid,56 the preliminary
question arises as to whether the envelope containing the
words "UNION MONEY- BACKPAY CHECK"
constitutes union insignia within the meaning of the above
rationale. While research has uncovered no case directly
passing upon this matter, the Board, with court approval,
has adhered to its rationale in many cases involving
unusual buttons, emblems , and even articles of clothing.57
Thus, in the Murphy Diesel case, the Board, recognizing
that the strike date signs worn by employees and placed
by employees upon their toolboxes advertised an impend-
ing strike , held that such signs in essence "were no dif-
ferent from union insignia worn by employees to adver-
53 The findings of fact and the conclusions of law relating to this man's
discharge are in no way predicated upon his testimony , for, based upon
Toole's evasive manner in replying to questions , his conflicting and in
many instances completely implausible testimony , and, in particular, my
observation of his demeanor while testifying , I cannot and do not place
credence in his testimony.
54 The above recitation of facts concerning the discharge conversation
is taken from the credited testimony of Roberson Toole's version of the
conversation , however, although more brief, is not consistent generally
with that of Roberson.
55 Murphy Diesel Company , 120 NLRB 917 ; Republic Aviation Cor-
poration v. N L.R .B., 324 U.S. 793
Ss Boeing Airplane Company , 103 NLRB 1025 , enfd. in pertinent part
in Boeing Airplane Company v. N.L.R B ., 217 F .2d 369 , 376 (C.A. 9);
Mayrath Company, 132 NLRB 1628, enfd . 319 F.2d 424 (C.A. 7);
Murphy Diesel Company, supra , Brewton Fashions Inc, a Division of
Judy Bond, 145 NLRB 99.
59 For a resume of such cases, see Fabri- Tek Incorporated, 148 NLRB
1623 , footnote 10.
KAYSER-ROTH HOSIERY CO.
tise or promote other forms of union activity, particularly
organization of employees." I find, without regard to
Toole's purpose or motivation (as distinguished from his
right) in "wearing" the subject envelope in the plant,58
that the envelope advertised to anyone interested the fact
that through the efforts of the Union Toole had received
his backpay check from the Respondent, and that the en-
velope falls within the union insignia category.
Having thus concluded, the remaining issue concerns
itself with the question of whether the Respondent's
directive to Toole was necessary in order to maintain
production or employee discipline. In this regard, the
Respondent does not appear to claim that Toole's action
interfered with production. The evidence, in fact, reveals
that Toole's job as machine fixer entailed no production
quota, and that the Respondent did not check the produc-
tion of any employee as a result of this incident.. With
respect to the necessity of maintaining employee
discipline, Roberson testified that the reason he directed
Toole either to turn the envelope around or to put it in his
toolbox was because he was causing a disturbance, and
that employees were stopping work, and laughing and
talking. However, when questioned on this, Roberson
named but two employees who had stopped their work to
talk with Toole. As to one, Roberson gave no particulars,
and, as to the other, he testified it lasted for a few
minutes. Roberson's bare testimonial assertion as to em-
ployees laughing and talking stands uncorroborated by
any credible record evidence. Toole's supervisor, Troy
Ward, although appearing as a witness for the Respond-
ent, was not questioned on this matter. This, coupled
with the fact that it does not appear that any employee
was reprimanded or even approached by the Respondent
for talking and laughing with Toole, would indicate that
such activity was minimal.
In view of these circumstances, including the message
conveyed on the envelope, which, upon analysis, I deem
not to be inherently disruptive or "calculated to defame
or insult other employees,59 I find totally lacking the type
of evidence required to support a finding of special cir-
cumstances which would permit the Respondent's inter-
ference with Toole's right to engage in such protected
activity.60 Therefore, I find that by carrying the envelope
with the words "UNION MONEY- BACKPAY
CHECK," in his pocket while at work, Kenneth Toole
was engaging in a protected activity, that by ordering him
to turn it around or to put it in his toolbox the Respondent
unlawfully interfered with his right to engage in such ac-
tivity in violation of Section 8(a)(1) of the Act, and that,
in discharging him for refusing to obey the directive, the
Respondent violated Section 8 (a)(3) and (1) of the Act.
58 Tune after time Toole gave evasive and then conflicting reasons for
writing the words on the envelope , for placing the envelope in his pocket,
and finally , for not turning it around or removing it as requested by Rober-
son. With respect to his purpose in putting the envelope, assertedly still
containing the check, in his pocket, Toole, at various points of time,
testified that he had no purpose , that he did not want to leave it at home,
that he did not want to mess it up, and that he did not want to lose it Not-
withstanding Toole 's testimonial denial , however , and while not pertinent
to the issue , I find that in carrying the envelope in his pocket while at
work, Toole did, in fact, want his fellow employees to read the quoted
words, that he did intend thereby to advertise his victory over the Com-
pany, and that his action in this regard was in great measure at least
prompted by a desire to laud it over the Company.
16. Peggy Wright
405
Peggy Wright was first employed by the Respondent in
March 1963, and put to work in the sewing department
where she worked on the second shift until April 1964,
and then on the first shift under Supervisor Rhoda
Housley until her discharge on October 5, 1964. Wright
testified that in early September, upon returning from a 3-
day sick leave, Supervisor Parker Bean attempted to per-
suade her to take at least "a 30-day leave." After reiterat-
ing his suggestion, Wright asked him if his suggestion was
based upon the fact that she was active in the Union, giv-
ing him an opportunity to not hire her back. According to
Wright, Bean merely repeated his suggestion a number of
times. When Wright asked to go to work, however, Bean
told her to do so, but to think about it.61 According to
Wright, from that point on, "just about everytime" she
went to the restroom she was followed by Housley or her
assistant, Ann Thurman, and that, for the first time, she
started getting work back to do over.
According to Wright's version, on Monday, October 5,
following her appearance but not her testimony as a
prospective witness for the Union at the courthouse in
the representation proceeding the Friday before, along
with a number of others, Wright was watched all day by
Housley and, on and off during the day, she had a slight
nosebleed as a result of a lingering cold, necessitating her
visiting the ladies restroom.62 About 2:15 p.m., it oc-
curred again , so Wright put a kleenex to her nose and
went to the restroom. She subsequently returned to her
worktable, found that she had no work, and walked over
to the buggy and bent over to pick up some work. While
so positioned, Wright testified that it seemed like her nose
commenced to bleed again, so, in order to prevent
messing up the work in the buggy, she grabbed an "extra"
leotard leg that was on the side of the cart and placed it to
her nose while she went to the water fountain to get it
wet. At the fountain, having wet the leg, Wright held it to
her nose "and sort of blowed a little bit on it ...." She
noticed that her nose was not bleeding, and then took the
leg back around her table and put it in the wastepaper can,
proceeding then to go about her work. At this point,
Floorlady Rhoda Housley came up and retrieved it from
the trash can and took it into the office.
Shortly thereafter, according to Wright, Housley came
after her and told her she was wanted in the office. Upon
entering the office, in the presence of Everett Roberson
and Housley, and with the leotard leg laying on his desk,
Supervisor Parker Bean asked Wright what she did that
for, to which Wright protested that it was a mistake and
could not have been helped. Wright explained that she
ii Murphy Diesel Corp ., supra.
6° See Fabri-Tek Incorporated, supra ; cf. Standard Fittings Co., 133
NLRB 928.
61 Although Bean did not testify in this proceeding , Wright admitted to
quite a lot of illness and to the fact that she had been forced to take a
number of leaves of absence during her employment with the Respondent.
Such would negate the inference otherwise in be drawn from Wright's
testimony as to Bean's suggestion.
62 Wright testified that she had been to the restroom about five times
because of this, but had not apprised her floorlady Housley of her
problem Wright's testimony as to one such occasion is corroborated to
the extent that Frances Hill testified that she found Wright in the restroom
with a kleenex held to her nose.
308-926 0--70-27
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had used the extra leg in order to save the work that was
in the buggy. Bean asked Wright if she made it a habit to
throw things away, to which Wright replied that she
would if she thought it necessary to keep from spreading
germs, and that she did not want to slit the leg and send it
on through to the other girls. When Bean asked her if
there were any kleenex in the wastepaper can proving
that her nose had been bleeding, Wright informed him
that each time her nose had bled she had gone to the
restroom, carrying the kleenex in her hand. Wright then
apologized, stating that she had not intended to destroy
company property. At this point according to Wright,
Roberson spoke for the first time, asking Wright where
she got the socks she was wearing. Wright, indignant over
the implication, replied that she considered that her own
personal business. Roberson then said, "Peggy, did you
buy them in the commissary? Are you telling me it is not
any of my business?" When Wright answered that she felt
like it was her own business, Roberson told Housley to
take Wright upstairs and to pay her off, that he had had
enough.
Housley then proceeded to take Wright upstairs, and,
while Housley was in the office, Bean came by and told
Wright that he was very sorry this had to happen, that he
had nothing to do with it. Wright was then paid off.
According to Wright, the following day she called to
ask Roberson for a written reference for another job,
which Roberson refused, but told Wright that he would
give her a good reference if she had the prospective com-
pany call him. When Roberson told Wright that he con-
sidered her a good worker, causing her to ask why he
fired her then, Roberson said "for other reasons." Wright
asked if it were because of her union activities or because
she appeared for the Union on Friday, to which Roberson
said, "No, there were too many there to do that." Then
Roberson allegedly said, "How do I know you don't have
Benton or Rainey (union representatives) listening to this
conversation on the telephone?"63
Factually, there is a dispute as to two matters, one con-
cerning the leotard leg, and the other, with respect to the
conversation in Roberson's office. As to the former,
Housley, who denied watching Wright all during the day,
testified that the work buggy was full and that Wright did
not lean over into it, that Wright did not use an "extra"
leg,64 but rather, pulled a first-quality leg from a dozen
tied together on top of the buggy, and that when Wright
walked over to the water fountain, she did not wet the leg.
As to the conversation in Roberson's office, Housley
testified that, having reported Wright's unusual conduct
and showing the leg to Parker Bean who was in the office,
Bean told her to summon Wright. When Wright and
Housley entered, Roberson looked up momentarily and
then continuea with work at his desk, and remained busy
with the work until the end of the conversation among
Wright, Bean, and Housley. According to Housley, when
Bean asked Wright why she blew her nose on the leotard
leg, Wright answered, because her nose was bleeding.
When Housley told Wright that she could check the
waste can at her desk to see if it contained tissues with
blood on them, Wright allegedly changed her story, say-
ing that her nose had bled only in the restroom. Wright
told Bean that she had used the leg because she had run
out of tissues at her table. Housley, who admittedly did
not recall too much of the conversation, did testify that
Wright could have apologized, as so testified by Wright,
for having used the leg to blow her nose. I find that
Wright did so.
Roberson testified that on this occasion, while he worked
on other matters at his desk, Bean and Housley talked
with Wright for about 30 minutes concerning the incident.
During this period he heard some of the argument, and
that Wright changed her story on a couple of matters with
respect to whether her nose had been bleeding at her
work station and as to the number of times she had gone
to the restroom. According to Roberson, when Wright
replied to Bean that there were no tissues available, and
Bean asked her why she picked a first quality leotard leg
from within a dozen to blow her nose on, Wright an-
swered that she had to have something. Roberson
testified that Bean asked Wright why she had not re-
ported her nosebleed and she replied that she did not
think it was important. According to Roberson, finally,
after 25 or 30 minutes of the talk among Wright, Bean,
and Housley he was asked by Bean what he thought
about the situation. At that Roberson turned to look at
Wright and noticed that she was wearing a pair of greige
socks.65 Assertedly because of theft reports at the plant,
Roberson immediately asked Wright where she got the
socks she was wearing, to which Wright at once replied,
"Well, I don't consider that any of your business."
Roberson retorted that "It might be some of my business
because we don't sell those socks anywhere." Wright as-
sertedly replied, "Well, I still don't consider it any of your
business where I got these socks," at which point Rober-
son instructed that Wright be paid off, that he was not
going to listen to any more .61;
A resolution of this conflict in testimony is not easy, for
I feel all three of the principals to some degree colored
their testimony to better support their case. Neither
Wright's story nor Housley's version of the use of the
leotard leg rings completely true. Notwithstanding
Housley's testimony to the contrary, it is conceivable that
Housley could have been mistaken as to what she saw. In
any event, I find that Wright did have trouble on this date,
that she thought her nose was about to bleed and for that
reason she grabbed a leotard leg on top of the buggy, and
that she used it at the water fountain for the purpose of
blowing her nose. As to the conversation in Roberson's
office, again I believe that the facts are not exactly as
Wright, on one hand, and Housley and Roberson, on the
other, testified, and herein lies the key to the crucial issue.
Roberson , the sole principal in the decision to discharge
Wright, testified, when called as a witness early in the
hearing by counsel for the General Counsel, that Wright
63 Roberson was not questioned on this telephone call from Wright, and
therefore Wright 's testimony in this regard remains unrefuted.
64 Record testimony indicates that on occasion an "extra" is found in
the buggy and is draped over the side , and also that occasionally "extras"
have been used for throw-away purposes.
65 These are unfinished socks in the greige process, and are not sold on
the market.
66 The only dispute here between the testimony of Wright and Rober-
son is the phraseology of Wright's reply Wright testified that she con-
sidered it her personal business, whereas Roberson, corroborated by
Housley, testified that Wright said she did not consider it any of his busi-
ness.
KAYSER-ROTH HOSIERY CO.
was terminated "for taking a first-quality leotard leg and
blowing her nose on it." Later in the hearing, Roberson
expanded on this, testifying that Wright was discharged
"for poor attitude and willful destroying company proper-
ty.,,
As to the willful destruction of company property, if
Roberson considered the charge of throwing one leotard
leg, extra or not, into a trash can after this use of such
magnitude as to warrant the termination of a good
worker,67 it seems incongruous that for one-half hour dur-
ing the discussion concerning Wright's use of the leotard
leg, Roberson continued to work on other matters, said
not one word to anyone, and in fact did not even look up
from his desk until Bean, his subordinate, asked him what
he thought about it.68 As to Wright's poor attitude, not-
withstanding Roberson's attempt to show through his
testimony that Wright had a bad record, the only credible
evidence reveals that such was confined to a reprimand
during the previous August for talking to another em-
ployee away from her station. As to her immediate at-
titude, that is, at the time of, and during, the conversation
in question, again it seems strange, certainly contrary to
probability, that, in spite of Roberson's testimony that
Wright was talking in a "louder than normal" voice, that
she was abrupt, and that "her face was blushed, red ..."
when he finally looked at Wright, he had not one time,
during the one-half hour conversation of which he took no
part, concerned himself with Wright's "attitude." This
leaves the 20-second colloquy between Wright and
Roberson just before he discharged her. Whether one
fords the form of Wright's reply to have been as testified
to by Wright or by Roberson, I am certain that Wright
displayed emotion and that her reply irritated Roberson
and, under the circumstances, feel that he was entitled to
a civil answer. Nevertheless, to find that such warranted
a permanent dismissal from the Respondent would
require a disregard for the total factual situation. Thus,
Wright, along with her husband, was one of the earlier
union adherents and one of those who signed a union
letter in April apprising the Respondent of her union sen-
timents. As heretofore noted under a discussion of 8(a)(1)
activity, about the same time Wright was interrogated at
length by Supervisor Bean and Roberson in the former's
office. Notwithstanding the fact, as elicited by counsel for
the Respondent, that Wright was but one of a very large
number of plant employees attending the hearing at the
courthouse the previous Friday concerning the forthcom-
ing election, it properly can be inferred that her presence
at such event was fresh in Roberson's mind at the conclu-
sion of the discharge conversation on Monday, October
5. Under all of the circumstances, I am of opinion, and so
find,'that leggy Wright was discharged by the Respond-
ent on October 5, 1964, at least in part because of her
union activity, and that the Respondent thereby violated
Section 8(a)(3) and (1) of the Act
17. Betty Stout
Betty Stout was hired on April 28, 1964, as a
preboarder in the boarding room on the third shift under
Supervisor Roy Stinnett. After commencing her em-
67 Wright's uncontroverted testimony reflects that on one occasion
Bean, and on another, Roberson, told her that she was considered a good
worker.
407
ployment with the Respondent, Stout signed a union card
and attended one union meeting. Upon returning from a
plantwide vacation on July 5, Stout was stung by a wasp
and was absent from work for about a week. Later
in July she hurt her back when she slipped and fell
on the job, but without telling anyone she continued
to work until August 17, when it hurt so much she was
forced into taking sick leave. Stout returned from sick
leave on September 24 or thereabouts, and worked until
the night of Friday, October 2.
On this night, according to the testimony of Stout, she
hurt her finger changing boards on her machine and it
became very painful. She went to her supervisor, Stin-
nett, and told him, "I mashed my finger and I couldn't
raise my arm because the pain was so bad in my back that
I had to go home, that I was so nervous that I couldn't
stay at work." Stinnett assertedly told her to rest a while
and perhaps she would feel better. According to Stout she
rested for a few minutes and then went back to her work,
but found that she could not get her arms up to put the
tights on over the boards. Stout then went back to Stin-
nett and told him to make out her production tickets,
which he did. Stout then asked for and received permis-
sion to telephone her transportation, and, when it arrived,
she left and went home.
Stout testified that the following Sunday, both Saturday
and Sunday being nonworkdays, Charlie Kelley, first-
shift supervisor, called her and told her that Stinnett had
messed her up, that he had reported that she had refused
to operate a machine because it had eight boards on it,
and that she would have to see Earl Barger, division su-
perintendent, on Monday, before she could return to
work. Kelley, who, according to the inference to be
drawn from Stout's testimony, appears to have been a
friend of Stout, told her that he wished she had told him
her troubles so that-he could have straightened it out. On
cross-examination, Stout admitted that she did not men-
tion her hurt finger to Kelley until the very end of the
telephone conversation.
On Monday, according to Stout, she went to the recep-
tionist's office, and told the receptionist that she wanted
to see Earl Barger. Shortly Barger appeared, asked her if
she were Betty Stout, and asked her what she wanted to
see him about. Stout told Barger that she wanted to see
him about getting changed to the second shift. At some
point, Stout, having noted earlier that the receptionist had
her pay, asked Barger why her money had been prepared,
and Barger told her that Stinnett had turned in a slip on
her, saying that she refused to operate the machine to
which she was assigned. Stout denied this to be the case,
telling Barger that she had hurt her finger and was sick.
Barger told her that the machine had to be run, and Stout
suggested that they give that machine to someone else,
and put her on a different shift. Stout, at this, apprised
Barger of several complaints she had against Stinnett.
Barger told Stout that he thought that she had returned to
work too soon after her illness and that she needed to stay
out longer. Barger told Stout to leave it like that for the
time being and he would call her and let her know what he
could do. Stout admitted on cross-examination that
Barger also told her that he would have to let her go for a
while and that maybe he could help her later. Stout went
68 When questioned at length on this matter, Roberson contradicted his
earlier testimony wherein he indicated that he had asked her one or two
questions on this matter.
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
home and rested for 2 weeks, and then called Barger,
about October 19, and told him that she was ready to
come back to work. Barger replied that he would just
have to leave it like it was, but that he would call her the
next afternoon at 3 p.m. Barger never did.
Contrary to the testimony of Stout, set forth above, the
combined testimony of Stinnett and Barger indicates that,
on the night of October 2, Stout, who had a poor at-
tendance record because of her illness, came into his of-
fice and told him that she wanted him to put four more
boards on her machine, raising the total number of boards
from 8 to 12 on each end of the machine,69 thereby in-
creasing the machines productivity. Stinnett told her that
he could not do that, that the machine only required a
total of 16, counting both ends, and that there was no
floater, a third man for that particular machine. When
Stout protested that, "she just couldn't pull them eight
boards and that it just tore her to pieces on the inside and
caused her to jerk the equipment," Stinnett told her that
that was the only machine he had for her that night. Stout
told him that she would come in Monday morning and
talk with Barger to see if he had something else for her to
do. At this point Stinnett told Stout that if she did not pull
the tights on her machine that night , Barger would want
to see her Monday morning. At that, about 1 o'clock
Saturday morning, Stout said she could not pull them,
that she was going home. Stinnett replied that if she felt
that way, for her to go home. Stinnett emphatically denied
that Stout had mentioned having hurt her finger, that he
told her to rest a while , that Stout asked him to fix her
production tickets that night , or that he gave her permis-
sion to go home, but testified that he did permit her to use
the telephone.
The following morning, Stinnett told Barger about the
incident, reporting that Stout had walked off the job
because she did not want to pull the work that he had as-
signed to her, the same work that other shifts had per-
formed . Barger told him to discharge her. Supervisor Bill
Ewing filled out a separation slip and Stinnett signed it,
the slip indicating that Stout was terminated because she
refused to operate her machine . The following Monday,
according to the credited testimony of Barger , Stout went
by his office and asked to talk with him about being
discharged. When Barger told her why she was being
discharged, Stout then told him about hurting her finger,
and in answer to Barger 's question, told him that she had
not mentioned the finger to Stinnett. Stout then asked for
another job and Barger told her that they did not have
anything for her at that time.
I credit Barger , who at the time of the hearing, was no
longer employed in any capacity by the Respondent, and
Stinnett , an impressive witness, over Stout who repu-
diated a portion of her affidavit and was evasive, con-
tradictory , and lacking in candor.70 Kelley was not
questioned on this matter.
The General Counsel asserts that Stout was discharged
on the night in question because of her union activities.
69 Many of the other machines were set up to run 12 boards
70 Stout testified that she liked her supervisor , Stinnett , notwithstanding
her admission that she had told Supervisor Charlie Kelley that Stinnett
had falsely accused her of taking production tickets from someone else,
that "lots of times" Stinnett walked by and twisted her work on purpose
so that she could not straighten it out , and notwithstanding her testimony
that she wanted to find someone who would overrule Stinnett and that she
went to see Barger about getting off Stinnett 's shift
71 Stout 's unrefuted testimony on this point does not disclose the con-
The Respondent contends that Stout refused to operate
her machine and quit . I am of the opinion that union ac-
tivity played no part in this person's discharge. Apart
from her having signed a card and attended one meeting
at some unspecified time , but presumably back in April or
May after her hiring, the only credible evidence involving
a supervisor' s mention of the Union to her is the time on
September 24, when Stinnett asked her while she was
working whether she had been talking to the girls about
the Union , and she had replied in the negative .71 Stout im-
pressed me as being a very insecure and unstable person,
as well as one who was not too well ,72 and I feel that her
decision to walk off a job on October 2, was brought
about mainly because of her many difficulties with her su-
pervisor, Stinnett , and the fact , as she later admitted, that
she did not like the machine or the shift. Although one of
three doctor's certificates admitted into evidence in-
dicates that Stout had reported to the doctor on October
3 that she had hurt her finger the night before and that it
felt like an electrical shock, the certificate, although
reflecting that the finger was "ok now," in no way in-
dicates that the doctor treated the finger, or anything
other than Stout 's claim of injury . All in all, considering
Stout's history and unimpressive record as an employee
with the Company, on the credible evidence pertaining to
the October 2 incident , an inference of discriminatory
motivation based upon her union activity is hardly war-
ranted. I find the General Counsel has failed to prove by
a preponderance of the credible evidence that Betty Stout
was discharged in violation of Section 8(a)(3) and (1) of
the Act. 73
18. Garland Stinnett
Garland Stinnett was hired by the Respondent' in
March 1961 as a preboarder on the third shift under
Foreman Charlie Kelley . He voluntarily terminated his
employment during the spring of 1962, and returned again
in August 1962, from which point he worked as a
preboarder on the 3 to 11 p.m. second shift under Super-
visor Robert Wilkey, and , just before his discharge on
October 12 , 1964 , Supervisor Verdman Wells . Stinnett
was active in the union movement , having signed a union
card , a union letter sent to the Respondent , and having at-
tended meetings and solicited other employees to join the
Union.
Approximately at 4:30 p.m. on Monday, October 12,
while working on No . 2 preboarder machine, Stinnett
heard his name called for the telephone. Believing it to be
a call pertaining to his baby who had been ill with in-
testinal virus and under treatment with an out-of-town
doctor, Stinnett picked up the telephone and found it to
be a call from a friend who had one of Stinnett's bird dogs
on trial which had become sick. Upon telling his friend
that he would pick the dog up the following day, Stinnett
hung up the telephone and returned to his machine. Su-
pervisor Verdman Wells, who had been out of the room
text of the remark, that is , whether or not the question had reference to
talk while she was operating her machine.
72 Stout testified that there were many nights on the job when she was
"just there in a daze," that on these occasions , upon reflection , she did not
know how she had done her work, and that this occurred down to and in-
cluding thenight of October 2.
73 A constructive discharge was not alleged, nor do I find record
evidence in its support.
KAYSER-ROTH HOSIERY CO. 409
when the telephone call came in but had returned while
Stinnett was talking on the telephone , was waiting for him
at his machine and told him, "You are fired ." According
to Stinnett , when he asked the reason , Wells said , for talk-
ing on the telephone . Stinnett asked Wells , what if it had
been an emergency , and Wells replied that that would
have been all right. When Stinnett asked him how he
knew that it was not an emergency , that Wells had not
asked him, Wells merely directed Stinnett to come up to
the office , telling him he would write up his time.74
In support of the Company ' s position that Stinnett was
discharged for violation of company rules, culminating
with his use of the supervisor's phone in violation of in-
structions and rules , Wells testified that during the 2-
week period that he supervised Stinnett before the
latter's discharge it had been reported to him by an em-
ployee designated to handle telephone calls in his absence
that Stinnett used the company telephone in the boarding
room several times while he was out to lunch . 75 Wells
testified that on Monday , October 5, his first day on the
job, Stinnett violated the smoking area rule, which allows
but two employees in the break area at one time. On this
occasion , two men were already in the smoking area
,when Stinnett walked in and lighted a cigarette. Wells,
who was within a few feet of the area , witnessed this, and
told Stinnett he was the third man, for him to return to his
machine. Stinnett put out his cigarette and went back to
his area. He received a written reprimand for this. On the
following Wednesday , October 7, Stinnett was found
over in the autoboard department talking with another
employee. This incident , which resulted in another writ-
ten reprimand , caused Wells to apprise Stinnett that he
was not supposed to visit people at their work , that such
was against the rules, and for him to return to his
machine, which he did. The following night , October 8,
Stinnett, in walking by, "smacked one of the pre-boar-
ders," resulting in a loud racket , "attracting everybody's
attention in the boarding room."76
Thus, on the afternoon of Monday , October 12, when
he returned to the boarding room after having been out
for a few minutes and saw Stinnett on the telephone,
Wells waited for about 2 minutes at Stinnett 's machine
until Stinnett was off the telephone and then told him to
get his belongings and to come to the office. In the office,
Wells told Stinnett that he had gone about as far as he
could go with him, adverting to the fact that Stinnett had
broken the rules concerning the smoking room and
bothering other people on the job . Because the office
force had left for the day, Wells told Stinnett to come
back in the morning and get his check. Around 7 p.m.,
Stinn called and said he would like to get his check that
night. Wells, who had apprised Superintendent Earl
Barger in the meantime of his action , told Stinnett he
could arrange it and did . Stinnett stopped by a little later,
received his pay, but would not accept a separation slip
which stated that he had been discharged "for using the
telephone without permission ." 77 According to Wells,
this was the last conversation between Stinnett and
Wells.711
As to pros and cons surrounding his action , Wells ad-
mitted that he did not know whether Stinnett had initiated
the telephone call or had been called to the phone, that he
did not attempt to find out, either from Stinnett or from
Leonard Bradey , the employee whom Wells had
designated to answer the phone in his absence , that he did
not know, nor did he inquire of Stinnett , whether the can
had been of an emergency nature, and that he fired Stin-
nett because he found him using the phone without his
permission. Wells testified that he was a new supervisor,
that he learned the rules as posted from the bulletin board
and that he enforced them without exception. Wells
further testified that employees were supposed to get per-
mission to use the telephone anytime, whether to make a
call or to receive an incoming call. Apparently , in addition
to the requirement of receiving permission , such use of
the telephone was limited to emergencies . In this regard,
Wells admitted that, had he been in the room , he would
have received the call , and had it been an emergency he
would have given Stinnett permission to accept the call.
Thus, the real crux of the matter appears to have been
the lack of permission , the fact that Stinnett was on the
phone, emergency or otherwise , without having Wells'
permission. A perusal of the posted rule governing the
use of company telephones mentions nothing concerning
permission, merely stating that such phones are limited to
company business and that incoming messages will be
delivered . 79 Thus, in honoring the unwritten exception to
the rule as to emergency situations , it would appear that
Wells established his own requirement that his permis-
sion was necessary before the phone could be used.
Whether or not Stinnett was aware of this, appears to be
of no moment, for Stinnett admitted that he was aware of
the rule that employees could not use the telephone un-
less it were an emergency , that he had been apprised of it
by his former supervisor , Wilkey, and that the rule had
been in effect for 5 or 6 months. 80
Under all of the circumstances , however, particularly,
the fact that Wells was not in the room at the moment that
the call came in, and accordingly , could not have evalu-
at.-d the nature of the call and then refused permission for
Stinnett to receive it, it would seem that, before terminat-
ing Stinnett for his unauthorized use of the phone, Wells
at least would have asked Stinnett whether the call had
been of an emergency nature . Additionally, Wells
74 Wells placed the latter part of this conversation at a later time.
75 Notwithstanding Wells ' recollection that he supervised Stinnett for
2 weeks , company records indicate that Wells replaced Wilkey as second-
shift supervisor on October 5, just 1 week before Stmnett 's discharge on
October 12.
76 The preboarder here referred to is not an individual , but rather a
machine used by boarding room employees.
49 According to Wells , it was during this conversation that Stinnett
asked, "you didn't know but what that was an emergency , did you?"
When Wells replied , "No, sir , I didn't," Stinnett said, "My mother could
have been in the hospital." To this, Wells replied, "Yes , she could have.
I didn't know that,"
46 Stinnett denied or attempted to minimize the earlier rule infractions.
I do not credit his testimony where it conflicts with that of Wells , or with
any other credited testimony . Stinnett did not impress me -as being
completely honest while testifying. In addition to repudiating portions of
his pretrial affidavit , Stinnett was evasive time after time, obviously at-
tempting to slant the facts of his case in his favor.
90 This rule reads as follows.
7 TELEPHONES -The use of the company telephone is limited
to company business Incoming messages will be delivered.
80 Stinnett repudiated his pretrial affidavit in this regard, stating therein
that no one had ever said anything to him up to the date of his discharge
about using the telephone . Furthermore, the evidence reveals that the
posted rule had been in effect for a number of years . In this regard, I do
not credit the testimony of employee Woodrow Tumlin that the telephone
was used by employees on an average of 2 or 3 dozen times a day.
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that he had leaned over backwards to try to help
Stinnett and to straighten him out, referring to his break-
ing rules and horseplay, and that the use of the phone on
this occasion without permission was the straw that broke
the camel's back. Admitting, however, that he would not
have discharged Stinnett had it not been for his use of the
phone on this occasion, it strikes me as somewhat incon-
gruous that Wells gave up his attempt to help straighten
Stinnett out so suddenly without ascertaining whether the
import of the rule had been broken.
As opposed to an adverse inference to be drawn solely
on the implausibility of Wells' handling of the telephone
incident, however, other factors militate against such an
inference. For, in the absence of any evidence that Wells
in replacing Supervisor Wilkey on October 5, was out to
get Stinnett from the beginning, it is difficult to impute to
Wells a discriminatory motive behind his decision to
discharge Stinnett I week later. Thus, Wells was new to
the company, having been employed as a supervisor only
1 week before, and, it is unlikely that he would have been
made aware of Stinnett's union sentiments in that short
time, except perhaps, through one of his co-supervisors.
Even in this event, that Stinnett was singled out as a
union adherent is doubtful, for Stinnett does not appear
to have been any more active than others in the boarding
room.81 Apart from the question of knowledge as to Stin-
nett's union activity, there is not a scintilla of evidence
revealing union animus on the part of Wells. Neither the
complaint nor the evidence charges him with any anti-
union conduct or expressions. On the other hand, on the
first 5 days of Wells' supervision, Stinnett engaged in rule
infractions on at least four occasions, two of which
resulted in written reprimands. Thus, keeping in mind two
well-established principles relevant here. that a trier of
fact may not substitute his judgment for that of the Com-
pany as to the extent of the disciplinary action taken'82
and that an employer may discharge an employee for any
reason or for no reason so long as it is not prompted by
union considerations'83 I find, under all of these circum-
stances, that the General Counsel has not proved by a
preponderance of the credible evidence that Stinnett was
discharged in violation of Section 8(a)(3) and (1) of the
Act.
19 James W Suttles
With the exception of a 6-month period in 1956, James
Suttles worked for the Respondent in the long-fold rack
department from April 1954 until his discharge on
November 23, 1964, allegedly for carelessly ramming his
cart into another employee. Suttles' Job as a service boy
in putting finished goods into racks required, at least dur-
ing the last 7 years, that he push a 4-wheel cart or buggy.
Suttles was active in the Union, having signed a union
card, attended union meetings , appeared but did not testi-
fy as a witness at the October representation hearing, and
assisted the Union in checking the payroll 2 days before
the November 18 election.
The facts reveal that on August 12, 1964, as employee
Euna Everett was returning to her work station from the
restroom and walking down the main aisle, Suttles, push-
ing a buggy, came from a side aisle and made a turn
toward her. Notwithstanding that Suttles saw Everett
from as far away as 8 feet, he pushed his buggy into her,
forcing the left side of her face against one of the racks
separating the aisles 84 Everett told Suttles that he had
hurt her, as, indeed he had, and received in return a non-
commital "huh." The following morning her face became
swollen. She apprised Supervisor Margie Thomas of the
incident, and Thomas, in turn, called Division Superin-
tendent Earl Barger to look at it. Barger instructed
Everett to go to a doctor, which she did, where she
received medical treatment As a result of this incident,
Barger verbally admonished Suttles to be more careful
and to respect the other employees, and caused a written
reprimand to be placed in his file
On Friday, November 20, employee Rose Crumpler,
who works in the sample department but helps out in the
racks, spilled some work from her buggy on the floor as
she was leaving the main aisle. While in the process of
stooping over and picking it up, brushing it off, and laying
it back on her buggy, Suttles, who was entering the main
aisle, ran his buggy into her.85 Crumpler, who was ir-
ritated but not hurt, asked Suttles what he meant by
hitting her, and then she kicked his buggy aside.
Crumpler, who 2 or 3 weeks before, had been hit on the
back of the head by a board atop of Suttles' buggy as she
was backing out between racks with her buggy full of
work, immediately reported this incident to her super-
visor, Thomas, telling her as well about the earlier in-
86cident and saying that it had better not happen again.
Thomas' only reply appears to have been that perhaps
Suttles was sick.
On Saturday morning, Barger, who had been apprised
of the Crumpler-Suttles incident by his production
manager, together with his assistant, Bill Ewing, sought
out Crumpler at the racks. Barger asked her if it were true
that Suttles had bumped into her with his buggy and
Crumpler said that it was Crumpler told them about the
incident, and also about the earlier incident involving Sut-
tles. In reply to Barger 's question as to why she had not
reported the first incident , Crumpler said that she did not
want to cause Suttles any trouble, that she wanted to give
him a chance as she did not think that he really meant to
hit her the first time
The following Monday, November 23, Barger sent for
Supervisor Thomas and questioned her about the
Crumpler incident of November 20 as well as the earlier
one in August involving Euna Everett. At the conclusion
"' In this regard , although there is no question but that t.,e Respondent
was made aware of Stinnett 's union activity the prior April , there is no
evidence , indeed , Stinnett 's testimony offered none , that any supervisor
at any time during the intervening months made mention of the Union to
him
12 See N L R B v Ace Comb Company, et tit, 342 F 2d 841 (C A 8)
See also N L R B v Montgomery Ward Co , 157 F 2d 486.490 (C A 8),
and Indiana Meta l Products Corporation v N L R B, 202 F 2d 613
(CA 7), enfg 100 NLRB 1040
"' N L R B v Ace Comb Company et ul supra, N L R B v
Condensor Corporation of America, 128 F 2d 67 (( A 3), Associated
Press v N L R B, 301 U S 103 See also Gaynor News Company, Inc
v NLRB,347US 17
14 Whether or not Suttles intentionally bumped Everett on this occa-
sion , as she claimed , I deem it unnecessary to determine
15 Suttles had work stacked quite high on top of his buggy , but, accord-
ing to Crumpler, could have seen her as she was at the side of her buggy,
the latter parked in the middle of the narrow aisle
86 As to the earlier incident, nothing passed between Crumpler and Sut-
ties at the time, and Crumpler did not report it
KAYSER-ROTH HOSIERY CO. 411
of his conversation, Barger had Suttles report to his office
where Suttles was told that he was discharged.87
Suttles' version of the Crumpler bumping incident is
that the incident happened about 3 weeks before his
discharge and that, as he approached the racks pushing a
chin-high load, he looked on both sides, saw that his vi-
sion was clear, and started in between the racks. As he
started in, Crumpler stepped out on the side of the aisle
and he "brushed along her dress with the buggy." Suttles
asked if he had hurt her, and received a "No" reply. Sut-
tles testified that he heard nothing of the incident until.
Barger told him on Monday, November 23, that he was
not going to put up with it any more, and discharged him.
Suttles, who testified that he frequently ran into em-
ployees accidentally with his buggy, denied that he had
ever, at any time, been warned, reprimanded, or talked to
about bumping into other employees. It is absolutely im-
possible, however, to credit any of the testimony offered
by Suttles. He repudiated a portion of his pretrial af-
fidavit, evaded, time after time, straightforward
questions, remembered very little except that which
helped his case, and, in effect, refused to answer simple
questions put to him on cross-examination. Even in reply
to questions by the Trial Examiner, Suttles' answers were
not clear. Whether Suttles was an outright, dishonest wit-
ness or merely a thoroughly confused witness, it is im-
posssible to even decipher a nonconflicting story from his
testimony. Accordingly, except for matters pertaining to
his employment and to his union activities, I refuse to
credit his testimony in any respect and in no way do I rely
upon it in making my findings of fact or conclusions of
law.
Contrary to the position asserted by the General Coun-
sel, the Respondent contends that Suttles was discharged
for carelessly bumping into Crumpler. The facts tending
to support such a position are, in my opinion, weak in-
deed. Thus, the decision to terminate Suttles was that of
Barger. Barger, by his own admission , was aware of but
two "bumping incidents" involving Suttles, the Everett
incident on August 12, and the Crumpler incident on
November 20, for which he was discharged.88 While the
former resulted in serious consequences, undoubtedly
warranting the reprimand, the Crumpler matter on
November 20 appears to have been of a minor character.
Crumpler was neither hurt nor knocked down, and, even
based upon Crumpler's credited testimony, there remains
some question as to the extent to which Stuttles might
have avoided the collision. In any event, Supervisor
Thomas did not consider it of such moment as to warrant
her reporting it to her superiors. While there is some
question as to the extent to which employees bumped into
others with buggies,89 as Barger was forced to agree, it
undoubtedly happened from time to time, with no
evidence of disciplinary repercussion. Thus, under such
circumstances, a summary discharge after 10 years of em-
ployment hardly seems warranted. Although Barger was
not employed by the Company during the height of the
Union's campaign during the previous spring, he was
division superintendent when Suttles requested permis-
sion to be off work to attend the representation hearing on
October 2, and, although Suttles did not testify, his
presence was observed by Barger. Again on November
16, Barger was aware that Suttles had requested authority
to be off in order that he might attend the courthouse
proceeding at which the payroll was checked preparatory
to holding the forthcoming election.
Based upon the record as a whole, I am persuaded, and
so find, that Suttles' union activities played a part in the
Respondent's decision to terminate him on November
23, and that in effectuating his discharge, the Respondent
violated Section 8(a)(3) and (1) of the Act.
20. Conway G. Ballard, Jr.
Conway Ballard, known as Danny Ballard, was hired
by the Respondent in July 1961, and worked in the board-
ing room as a tights bagger on the first shift until his
discharge on December 9, 1964. Ballard signed a union
card, talked to other employees about signing , and at-
tended one union meeting the previous spring.
Commencing several months prior to Ballard's
discharge, Bill Ewing, then assistant superintendent of
the finishing division, received several reports from su-
pervisors that Ballard, from time to time, upon working
overtime, was found away from his work station and talk-
ing with a second-shift employee, one Martha Fugate, an
autoboarder. During this period, Verdman Wells, second-
shift supervisor of the boarding ; room,, twice found it
necessary to run Ballard out of the autoboarder alley, ad-
monishing him for leaving his machine, for carrying away
Fugate's work (which was not his responsibility), for talk-
ing with her, and directing him to stay away from her.
When, on the second occasion, which occurred im-
mediately prior to Fugate's transfer to the third shift and
about 5 weeks before Ballard's discharge, Ballard chal-
lenged Wells' supervisory authority over him, Wells let
Ballard know that any time that he worked over into the
second shift, Ballard was under his supervision. On this
occasion, Ballard went to Ewing and asked him to speak
to Wells about a lack of authority over him, at which
Ewing apprised Ballard that any time that he worked
overtime and into the second shift, Wells was his super-
visor. About this same time, on October 29, Division Su-
perintendent Earl Barger, having received reports that
Ballard had been found in the autoboard department, ver-
bally reprimanded Ballard, telling him that he had no busi-
ness being there talking and bothering other employees.
Shortly thereafter, Fugate was transferred to the third
shift, which shift ended at 7 a.m. just as the first shift
commenced. Coinciding with this change, Ballard started
requesting permission to report for work 30 minutes
early, on the ground that he could leave 30 minutes early
in the afternoon in order to take his pregnant wife to the
doctor. On some six occasions before his discharge he
asked for an was granted by Ewing or Barger permission
to come in early. Apparently Ballard continued his habit,
however, of conversing with Martha Fugate when report-
ing in early, for Supervisor Leon Snead, who had
replaced Charlie Kelley as first-shift supervisor on
November 20, reported to Ewing that Ballard was using
87 The above factual findings are based upon the combined, credited
testimony of Crumpler, Thomas, Everett, and Barger, all of whom
testified in a most honest and forthright manner.
89 The record shows that a second reprimand, rather strongly worded,
was issued by Barger, dated October 29, involving bumping by Suttles.
However , the reprimand contains no names and Barger was unable to re-
call any of the circumstances surrounding this reprimand. Barger did testi-
fy, however, that he did not believe that he talked to Suttles on this occa-
sion.
89 I do not credit Suttles ' testimony that this happened most every day
or the testimony of employee Danny Ballard to the effect that it happens
"maybe once a week."
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the excuse of coming in early in order to talk with Fugate.
Approximately a week or two before his discharge,
Ewing told Ballard that he was not to report in early un-
less specifically instructed to do so, that his clocking in
early without permission could cause the Company trou-
ble. Ewing further warned Ballard about doing his work
and not wasting time on those occasions when he was al-
lowed to report early.
Early on the morning of December 9, about 6:25 a.m.,
Ballard called the mill and Ewing answered the telephone
in the boarding room. Ballard asked Ewing if someone
would open the door for him, that he was coming to work
early. Ewing asked Ballard his reason for reporting early,
to which Ballard laughed and said, "Well, I'm not in there
yet," and hung up.90 About 6:30 a.m. Ballard arrived at
the plant, found the door unlocked, and went in and
punched his timeclock.91 A few minutes later, Ballard
was observed by Snead talking with Fugate at her au-
toboard machine. Ewing, however, did not see Ballard
until about 7 a.m., at which time Snead reported to Ewing
that Ballard had clocked in early, that again he was found
away from his job and talking with Martha Fugate, and
that he (Snead) had reported the matter to Earl Barger.
Sometime thereafter, Barger in Ewing's office called in
Snead and Bob Clapp,92 and the four discussed Ballard's
behavior. Having felt that they had gone along with Bal-
lard long enough, Barger and Ewing made the decision to
discharge him. At the time of his discharge by Ewing, Bal-
lard was told that he was being terminated for clocking in
early without permission, for not working, and talking
with Martha Fugate, violating company policy.
Ballard's version of the December 9 reporting incident
is that, Ewing, who was 25 or 30 feet away, saw him
punch in, and that they both spoke as Ballard went to his
work station. According to Ballard, the discharge conver-
sation with his superiors took place about 11 a.m. that
morning, that, on this occasion, Clapp asked him if he
knew he was not supposed to report to work early, to
which Ballard replied that he had called Ewing and that
Ewing had unlocked the door for him. At this, Ewing
spoke up, saying that he had not done so, to which Ballard
replied that the door was unlocked when he got there.
Clapp then said that Ballard had been caught the day be-
fore stopping and talking to an autoboarder, which Bal-
lard denied. Clapp then said because of these things, they
were going to have to let him go. Ballard protested, saying
that he had received permission from Ewing to go to work
early, at least he thought he had permission. At that,
Clapp and Ballard went upstairs and Ballard was paid off.
Ballard was an unimpressive witness whose demeanor
on the witness stand left much to be desired. At one point
I was compelled to advise Ballard to refrain from evading
the questions. I do not credit Ballard's testimony to the
effect that Ewing gave him permission to report early on
this date and agreed to open the door for him, or that
Ewing saw and spoke to him early that morning. In this
regard it is undisputed that when asked by Ewing on the
telephone why he wanted to report early, Ballard replied
only that he was not there yet. On direct examination,
Ballard testified that when confronted by his superiors at
the time of his discharge he told Ewing that he had come
in early in order to take his wife to Chattanooga to the
doctor. In view of the past practice of granting Ballard's
request for this reason, I find it hard to believe that Bal-
lard would not have made known his reason that morning
on the telephone instead of answering as he did. I credit
Ballard's testimony only to the extent that it is cor-
roborated by other credited testimony.
The General Counsel asserts that Ballard was
discharged for his union activity, whereas, the Respond-
ent contends that he was terminated for having reported
to work early and for talking with Fugate away from his
work, in violation' of company rules.93 I find weaknesses
in the position asserted by both parties. The evidence
shows that the rule against reporting in early had not been
enforced prior to the previous August, that, at that time,
based upon an incident involving Ballard, the Respondent
called a meeting of all day employees and they were told
not to come in early, that such was against the company
rules. Ewing testified that thereafter he had received com-
plaints that Ballard was coming in early, and that approxi-
mately a week or so before Ballard's discharge incident
Ewing had warned Ballard that his clocking in early
without permission could cause the Company trouble.
Yet, Ewing also testified that the only incident that he re-
called of Ballard's reporting in early without permission,
prior to December 9, was the one back in August. This in
itself renders part of the Respondent's position suspect.
On the other hand, Ballard does not appear to have
been one of the more active union adherents, the
evidence indicating that he had signed a union card,
talked with other employees, and attended, one union
meeting the previous spring.94 Moreover, it would seem
that, had the Respondent desired to get rid of Ballard for
his spring union activity, it had valid justification to do so
long before December 9. On September 9, for instance,
Superintendent Barger, accompanying a visitor through
the plant, came upon Ballard as he had another employee
lifted off the floor and was in the process of stuffing him
into a leotard buggy. Barger, obviously irritated over the
matter, told Ballard that he could not tolerate this type of
thing and warned him that it better not happen again. This
incident, plus the reprimand by Barger on October 29 for
talking with other employees away from his work station,
if not warranting discipline, certainly placed Ballard on
notice as to the necessity of guarding his conduct. Not-
9° Ballard's testimony as to this telephone conversation is almost identi-
cal to that of Ewing, from which the quotation is taken The one dif-
ference, albeit a big one, is that , according to Ballard , Ewing agreed to
open the door for him . I do not credit Ballard on this.
9' Although the shift starts at 7 a in., the plant doors are normally
locked until 6.45 a.m
92 Clapp, who no longer is with the Company, was, at the time, a
management or supervisory trainee, not shown to have been a supervisor
within the meaning of the Act
93 Pertinent posted plant rules provide:
1. WORKING TIME-Everyone is expected to report promptly
for work at the scheduled shift time Do not arrive more than 15
minutes before starting time and remain at work until the
stopping time except for brief necessary absences . Please do not
remain in the plant more than 15 minutes after the end of the
shift.
4. VISITING DEPARTMENTS - No one is to visit departments
in the plant other than those in which employed except on com-
pany business , unless given permission to do so by the super-
visor.
94 As related in the discussion of 8(a)(1) conduct , Ballard, like many
others , was unlawfully interrogated concerning the Union during the early
part of May. None of the three management officials then involved was in
any way connected with Ballard's December discharge . In fact , two of the
three were no longer associated with management at the time of Ballard's
discharge.
KAYSER-ROTH HOSIERY CO. 413
withstanding such admonitions, however, the facts reveal
that off and on for some time Ballard continued to violate
the company rule prohibiting employees from visiting
other departments, that after a number of verbal repri-
mands about talking with Martha Fugate, Ballard con-
tinued to ignore his supervisor's warnings, and that on the
morning in question, on top of violating the rule preclud-
ing employees from reporting early, Ballard again was
found in the autoboard department talking with Fugate.
In this regard, it is well settled that past union activity
cannot immunize an employee from managerial control or
properly founded disciplinary action. The Wm. H. Block
Company v. N.L.R.B., 367 F.2d 38 (C.A. 7); N.L.R.B.
v. Florida Steel Corp., 308 F.2d 931 (C.A. 5).
Under all of the circumstances, I am not persuaded that
the General Counsel has proved by a preponderance of
the credible evidence that the Respondent discharged
Conway Ballard for discriminatory reasons.95 I find that
in terminating his employment on December 9, 1964, the
Respondent did not violate Section 8(a)(3) and (1) of the
Act.
21. Euel RobertTate
Euel Tate was hired in January 1962 as a knitter in the
knitting department , and worked in this capacity, on the
second shift and later on the first shift until his discharge
on February 1, 1965, allegedly for turning in a high per-
centage of poor quality work.
Tate joined the Union in March 1964, attended union
meetings , wore the union pin inside and outside the mill,
and signed a union letter sent to the Respondent the latter
part of April. According to the testimony of Tate, within
a day or so after signing the union letter, his second-shift
supervisor , Troy Ward , approached him at his machine
and said, "I see you signed a union card ." When Tate re-
torted that he had a right to sign anything he wanted,
Ward said , "Don't you care anything about your job?"
and asked why he signed the card. When Tate replied that
he thought it would be a good thing for Dayton, Ward
asked him when did he start worrying about Dayton.96 A
month or so after this conversation with Ward , Tate, who
admitted that he disliked Ward and did not get along with
him, asked Everett Roberson for a fixer 's job on the first
shift , and, because there was nothing open for a fixer, a
job in which Tate had had no prior experience , Roberson
offered Tate a job as a knitter working on crawfords.
Although a more difficult machine to operate, func-
tionally it performed the same kind of work as did the
type on which Tate had been experienced on the second
shift. Tate accepted Roberson's offer.
Record evidence , much of it Tate 's own testimony,
reveals that over a considerable length of time prior to his
discharge, Tate had been getting a high degree of bad
work back and that he had received a number of warnings
concerning his work. As far back as May 26, 1964, his
supervisor, Ward, issued him a written reprimand and ad-
monished him to stay on the job and inspect his work
more closely. Thereafter, according to Tate, faulty work
was brought back to him "about once a week or once
every two weeks." Mayes, his first-shift supervisor, in
bringing work back to Tate, warned him on four or five
occasions that "My work was going to have to get
better... ..
On or about January 15, 1965, Roberson, having
scanned the high percentage report reflecting bad quality
work among the knitters, talked to his supervisor, Mayes,
concerning several knitters whose percentages were con-
stantly running high. Roberson told Mayes that they were
going to have to take whatever steps were necessary to
bring this percentage down. As a result three knitters
were called in and told by Mayes that they had 2 weeks to
improve the quality of their work or they would be
discharged. At the end of the 2-week period, on February
1, one of the knitters, Kenneth Hughes, a known union
adherent, had brought his bad work percentage down, and
he remained in the Respondent's employ. The other two,
Tate and one Robbie Dennis, did not improve substan-
tially, and they were called in and discharged for poor
quality work.
On the record it is most difficult to agree with the
General Counsel's position that Tate was discharged
because of his union activities. His signing of a union card
and a union letter dates back to April 1964. While Com-
pany awareness of his union sentiments also dates back
to that time, there is no evidence that the Union at any
time thereafter through the remainder of his employment
was mentioned to him in conversations with supervisors.
By his own admission, his request for transfer to the first
shift was granted in the spring of 1964 after the Respond-
ent had knowledge of his union sentiments. It would
seem that, had the Company singled Tate out for a pre-
textual discharge, considering the number of warnings on
his work during the year, it had ample opportunity long
before February 1, 1965. The record reveals that on
some occasions bad work is returned to the wrong
knitter, i.e., work that is not his. Evidence of any sort is
lacking, however, that would warrant a finding that the
bad work of others was purposely returned to Tate to pro-
vide an excuse for discharge at this time or at any earlier
time, or, in fact, that the work of other knitters was
returned to Tate at all during the period.97 Thus, on the
record as a whole, including Tate's failure to improve
upon his high rate of poor quality work during the 2-week
period of his admission that his work was "pretty bad," I
find that Tate was discharged for cause, that the Respond-
95 About 2 weeks after Ballard's discharge, when he went back to the
plant to inquire about receiving Christmas bonuses , Ballard became in-
volved in an argument with Superintendent Earl Barger. According to Bal-
lard's own testimony , when Barger told him to leave, Ballard challenged
Barger to put him out The two walked outside the plant where Ballard
called Barger a "dirty bastard" and threatened "if he ever come off those
premises there would be a lot of us waiting for him." In view of my finding
of no discrimination with respect to Ballard's discharge, I deem it un-
necessary to decide what effect this physical threat to Barger might have
had on the Respondent 's obligation to offer Ballard reinstatement
sc As noted heretofore in the discussion of 8(a)(1) conduct, Ward was
not questioned as to this conversation, therefore it stands unrefuted and is
credited However, I find this to be one of many examples of a dis-
criminatee witness attempting to slant the facts to best establish his case.
Tate 's initial testimony as to this matter, placed it 3 or 4 months prior to
his discharge, then placed it within a month of the November 18 election,
and finally, confronted on cross-examination with his pretrial affidavit,
Tate established the correct time as above recited , 9 months prior to his
discharge . Although on most crucial matters, the testimony of Tate and
Roberson was mutually corroborative, to the extent that it is not, I must
credit Roberson over Tate, for the latter, apart from evading questions,
continually reversed himself on cross-examination.
97 In this regard, the record is clear that inspectors, who are employees
and not connected with management, are responsible for detecting bad
work, and that it is but infrequently that an inspector returns bad work to
the wrong knitter.
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent's decision to terminate his employment was in no
way motivated by his prior union activity, and that, as to
Euel Tate, the Respondent did not violate Section 8(a)(3)
and (1) of the Act.
22. Robert Allen Smith
Robert Smith was hired by the Respondent in February
1960 as a preboarder in the boarding room, and was so
employed on the first shift under Supervisor Charlie Kel-
ley on October 19, 1964, when he was discharged al-
legedly for abusing break privileges and quitting work be-
fore the end of the shift in violation of instructions.
One of the prime responsibilities thrown upon Earl
Barger when he took over the Respondent's finishing
division in August was that of improving the efficiency of
his division and enforcing what theretofore had been an
almost complete abdication of plant rules and discipline
among employees. As testified by Supervisor Wendell
Borne, the old management, including General Manager
Elmer Kelley, General Superintendent Leon Young, and
Finishing Division Superintendent Freeman Looney, did
not back up supervision in the enforcement of company
rules and it was not until Barger came in that the rules in
the finishing division were enforced. The record is replete
with evidence reflecting the laxity on the part of manage-
ment, much of which went back several years. Without
attempting to set forth example after example, to reveal
the extraordinary extent to which employees were per-
mitted freedom, and therefore the need for rule enforce-
ment, the testimony of Guyman Hill, witness for the
General Counsel, will suffice. Hill testified that prior to
the period in question, i.e , in January, February, and
March, before the April advent of the Union, employees
could and did do just about anything they wanted. They
could go swimming, which Hill did on a number of occa-
sions, staying as long as they wanted, or "could work only
about 3 or 4 hours and go home if you wanted," that em-
ployees did as they pleased in the boarding room.
Although, according to Hill and other employees,
management had tightened up a little bit during the winter
prior to the Union, until Barger came employees in the
boarding room could take a 10-minute break every hour,
depending on how much production an employee wanted
to make. Discriminatee Robert Smith testified that earlier
employees could take breaks anytime they wanted to and
did take six or eight 5- or 10-minute breaks a day. So
much for the condition of the boarding room, as well as
the remainder of the finishing division, prior to Barger's
taking over as superintendent.
Barger, about 1 week before Smith's discharge in Oc-
tober, called separate shift meetings of all employees in
the boarding room In each instance he raised two major
topics with the employees. First, he told them that the
break privileges were being abused, that the employees
were taking too many breaks and too long breaks, that the
employees were entitled to three 5-minute breaks and a
20-minute break for lunch during the day, and that such
was company policy and that he intended to enforce it.
Second, a practice by many of the boarding room em-
ployees had been to quit working their machines some 30
minutes before the end of the shift, at that time to make
out their work tickets for the day, and to do little or
nothing the rest of the shift. Barger, at this meeting, in no
uncertain terms, let it be known that such practice was to
be stopped, that, from that point on, they were to con-
tinue working their machines at least until 5 minutes be-
fore quitting time, and that those who refused to adhere
to this policy would be discharged. Contrary to the
testimony of Barger, and in accordance with the
testimony of first-shift employees Finley Fugate and
Mayford Daniels, both of whom worked with Smith, I
find that Barger told the employees that they could con-
tinue to take the minute or two necessary to total up their
tickets at 2.30 p.m., but that they were to get back to their
machines and run them until 2:55 p.m.98
A few days after this meeting, on Friday, October 16,
Barger directed Jerry Jones, an industrial engineer em-
ployed by the Company, to make a timestudy of the 1 1
boarding room employees for the purpose of checking on
break violations. Thus, on this date, Jones, with the aid of
his timestudy board containing four stopwatches,
recorded the number and length of breaks taken by the
first-shift boarding room employees during the day. At
the close of the shift day, having completed his study,
Jones submitted a copy of the sheet to Barger The time-
study sheet showed that Smith had taken six breaks, plus
his lunch break, totaling 43 minutes. Penciled in was a
notation by Jones that Smith did not work from 2:30 p.m.
until the close of the shift at 3 p.m. The following Mon-
day, October 19, upon reporting to work at 7 a.m., Smith
was discharged by Barger.
The General Counsel contends that Smith was
discharged because of his union activity." The Respond-
ent asserts that Smith was discharged for disobeying in-
structions as to break privileges and quitting his work be-
fore the end of the shift The record contains a volu-
minous amount of conflicting testimony pertaining to the
work functions and procedures of preboarders, and of
Smith in particular, of matters concerning production
tickets, breaks, and the timestudy, and of Smith's actions
between 2:30 and 3 p.m. on the day in question. In
resolving the discrimination issue at hand, I deem it un-
necessary to further burden the lengthy decision herein
by detailing such matters. The credible evidence reveals
that Smith, by his own admission,' had been warned
every week or two not to take over 5 minutes on breaks,
that Barger, just a few days earlier, had warned the
preboarders as a group not to take over three 5-minute
breaks, and also to continue working their machines until
5 minutes before the end of the shift. Notwithstanding
such warnings, which for the most part were heeded by
the other preboarders including some at least who were
known union adherents, Smith did not change his break
practice2 and thus took six breaks, plus his lunch break,
three of which were longer than the 5-minute rule. Thus,
98 That Barger instructed the employees that they were expected to get
back to their machines and to run them until 5 minutes before the end of
the shift is made clear by the testimony of both Fugate and Daniels Both
testified that Barger told them that they knew about how many dozen they
could pull the last half hour and therefore they could estimate the addi-
tional production in totaling their tickets at 2 30 p m
99 Smith testified that he attended union meetings, and distributed
leaflets, and that the prior spring, he signed a union card and a union letter
sent to the Respondent
' Generally, I do not give credence to the testimony of Smith As exem-
plified by his testimony, referred to earlier, concerning surveillance, Smith
vacillated, had a poor memory, and became evasive on crucial points Ac-
cordingly, I do not credit his testimony where it conflicts with other
credited testimony, and, particularly, I do not credit that portion pertain-
ing to matters on October 16
2 Smith admitted that he followed the same break pattern on October
16 as he had every day for months.
KAYSER-ROTH HOSIERY CO. 415
not only did Smith break the rule on the number of
breaks, exactly double the amount allowed, but also the
rule on the length of breaks, three breaks lasting longer
than 5 minutes. It would appear that Smith continued to
flout management by taking as many breaks as he desired
and staying as long as he wished. As to the other rule in-
fraction, Jones, who made the timestudy, testified that
Smith did nothing from 2:30 to the end of the shift at 3
p.m. Assistant Finishing Superintendent Bill Ewing cor-
roborated Jones' testimony to the extent that he saw
Smith sitting with his head cupped in his hand for 10
minutes during this time, and, further testified that, ex-
cept for filling his two troughs, he saw Smith doing
nothing during this entire period. Smith testified that
between 2:30 and 3 p.m. he made out the production
tickets, which on credible record testimony I find would
not take more than a few minutes, and "I fooled around
the pre-board and maybe filled up the trough," which I
find would take but a minute or so.3 Accordingly, even
Smith admitted that upon stopping his machine at 2:30 to
tally production tickets, he never again operated his
machine through the remainder of the shift, violating the
directive and warning of Barger of only a few days earlier.
In discharging Smith immediately upon being apprised
of his having failed to heed his instructions, I am not
prepared to attribute to Barger a discriminatory motive
based upon Smith's union activity of the prior spring.4 I
find under all the circumstances that the General Counsel
has failed to prove by a preponderance of the credible
evidence that the Respondent, in discharging Robert
Smith on October 19, 1964, did so in violation of Section
8(a)(3) and (1) of the Act.
23. Hubert Donald Keith
Hubert Keith, better known as Donald Keith, was
hired by the Respondent on November 10, 1963, and
worked as a preboarder until his discharge on the third
shift on December 11, 1964. On this date, pursuant to
Superintendent Earl Barger's directive, Leon Snead, first-
shift supervisor of the boarding room, ran a timestudy on
breaks among the 12 preboarders on the third shift.5
Upon completing his timestudy at the end of the shift,
Snead turned the study sheet over to Assistant Superin-
tendent Bill Ewing. This document, which I find substan-
tially accurate in reflecting the true fact, reveals that
Keith, counting his lunch break, took 10 breaks during
the night, totaling 49 minutes. Of these, four were taken
for purpose of drinking a coke or getting a drink of water.6
According to the testimony of Keith, toward the end of
his shift on December 11,7 while he was taping boxes,
Snead came by, noticed that Keith was not operating his
machine, and asked him why. Keith replied that he was
taping boxes and writing tickets. Within a matter of
seconds after Snead left, Bob Clapp, who was a manage-
ment trainee, and who I found not to be a supervisor
within the meaning of the Act, approached Keith and
stated that if he were not going to run his machine, why
did he not quit, to which Keith replied that he was not
going to quit, that he intended to run his machine. At this
point, Clapp asked Keith, who had just received some
160 dozen faulty preboards back, whether he thought that
he was getting preboards back because he was in the
Union. When Keith replied "Yes," Clapp answered that
that was not true.8 Either then or shortly thereafter Clapp
told Keith that he wanted to see him in the office. Once
there, Clapp asked Keith if he had taken 10 breaks during
the night. After a brief discussion as to what constitutes
a break, Clapp told Keith that they were going to let him
go, and the two of them proceeded to Barger's office. Be-
fore Barger arrived, Assistant Superintendent Bill Ewing
came in, and Clapp and Ewing engaged in a short discus-
sion , following which, Ewing discharged Keith.
Ewing, who alone was responsible for the decision to
terminate Keith on December 11, testified that in arriving
at his decision, he considered several factors, namely, the
report from Snead and Clapp that Keith, on the day in
question, had taken nine breaks totaling 49 minutes of
breaktime, that he had stopped his machine and did not
run it between 6:35 and the 7 a.m. end of the shift, and
that in the past Keith had been reprimanded for jumping
the cycle on his preboarding machine.9
As to the taking of breaks and the timestudy upon
which Ewing principally relied, Keith admitted that Divi-
sion Superintendent Barger's predecessor, Freeman Loon-
ey, had called the boarding room employees together
in a meeting, and had apprised them that they were enti-
tled to take three 5-minute breaks plus a 20-minute lunch
period, Keith, on cross-examination, finally admitted that
Barger, at an employee meeting held on October 20,
reiterated this rule. Accordingly, there is no question but
that Keith was aware of the company policy in this re-
gard. There does exist a dispute, however, as to whether
Keith was aware that going after a coke, getting a drink of
3 Smith 's reference here is to placing leotard tights in a trough next to
the preboard machine to be used by the next shift in the preboard process.
4 There is no indication when or where Smith engaged in the distribu-
tion of leaflets. Accordingly, there is no evidence that the Respondent was
aware of any union activity on the part of Smith subsequent to his signing
the union letter the previous April or the implied threat by Charlie Kelley
at the same time- The threat incident is discussed under the 8(a)(1) head-
ing.
s Not a timestudy specialist as was Jerry Jones, Snead used a single
stopwatch and timed employees from the time they reached the break area
to the time they left He also noted on his sheet, where appropriate, the ap-
parent purpose for an employee's taking a break; i.e , to get a coke or
drink of water
6 Except for Keith's friend Quay McKenzie who took four breaks plus
lunch totaling 38 minutes (for which he subsequently received a written
reprimand), and one other whose four breaks totaled 30 minutes, none of
the remaining boarding room employees took more than three breaks plus
their lunch or totaled more than 34 minutes
4 Keith slated it was December 9, but the facts show that he meant
December 11, the day of his discharge.
8 Neither this statement by Clapp, nor an earlier statement by Super-
visor Roy Stinnett to Keith the previous September to the effect that "he
didn't believe the Union was any count . " was alleged or offered as
evidence of 8(a)(1) conduct, but rather was offered to establish company
knowledge of Keith's union activity or sentiments. In this regard, how-
ever, as Keith was one who signed a union letter the prior April (signing as
Donald Keith), the Respondent was aware of his union activity long be-
fore these two conversations took place.
9 Supervisor Stinnett testified that an additional factor, putting out bad
work, was also a reason for Keith's discharge , and that Clapp did the fir-
ing. In view of the fact that it was Assistant Superintendent Ewing who
discharged Keith and that he, alone, was responsible for the decision to
discharge him, coupled with Stinnett's admission that he (Stinnett) had
nothing to do with the actual discharge, I find that Stinnett's testimony in
this regard to be in error Further, as faulty work or poor production on
the part of Keith was not a factor in Ewing's decision to effectuate Keith's
discharge , I deem it unnecessary to attempt an evaluation of the tremen-
dous amount of conflicting testimony pertaining thereto, testimony which
I now find irrelevant to the issue
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
water, or going to the restroom, were considered as
breaks. Keith asserted that these trips were not subject to
the break rule. Based in part, however, upon the fact that,
with one exception, all of the third-shift boarding em-
ployees on the night in question observed the break rule
by taking the proper number of breaks, including their
trips for a coke and drinks of water, and more heavily
upon certain testimony of Quay McKenzie, I find that
Keith was perfectly aware of what constituted a break
and what did not.10 McKenzie, on direct examination,
testified that, ever since General Superintendent Leon
Young spoke to the employees about limiting their breaks
several months before Keith's discharge, "If I got thirsty,
I stayed at the machine myself," and that, if he had to go
to the restroom, he did not go, but rather, waited until his
break. McKenzie's practice in this regard is not con-
sistent with his denial that nothing had been said concern-
ing the makeup of breaks. I find that both McKenzie and
Keith were aware that trips for the purposes under
discussion were considered as breaks As to the number
of breaks taken by Keith on the night before his
discharge, even McKenzie admitted that, in addition to
lunch and the breaks that they took together, Keith also
went to the water fountain several times, taking "2-1/2, 3
minutes" each time. Keith, who was aware that Snead
was observing the breaks of the boarding room em-
ployees, admitted that on one occasion during the night
he went to get a coke, and that he went to the water foun-
tain whenever he became thirsty. Thus, this testimony
corroborates that upon which Ewing relied in deciding to
terminate Keith, mainly, the timestudy conducted by
Snead
On this set of facts and without attempting to pass upon
the propriety of the Respondent's rule as to what con-
stitutes breaks, it appears that Keith, unlike his fellow
boarding room employees, including his friend and known
union advocate McKenzie, refused to abide by the rules,
even when he was aware that he was being checked on,
displaying generally an "I don't care" attitude."
Although there was little testimony concerning Keith's
failure to operate his machine during the last half hour of
the shift, the second factor considered by Ewing, as to the
third, Keith admitted having been caught by his super-
visor, Stinnett, about 2 weeks earlier, jumping the cycle
on his machine 12 Notwithstanding that Keith was one of
those who signed a union card and union letter the prior
spring and who attended union meetings, I am of opinion
and so find that, under all of these circumstances, the
General Counsel has failed to prove by a preponderance
of the credible evidence that in discharging Hubert Keith
on December 11, 1964, it did so in violation of Section
8(a)(3) and (1) of the Act
24. Employees Stewart E. Calbaugh, James Buck Reel,
Vaughn Hensley , and William Pelfrey
These four alleged discriminatees are being
together for purposes of discussion for
hereinafter apparent, primarily, however, because they
were all discharged on August 27, allegedly for stealing
hose
With respect to this matter, the credible record
evidence discloses that, as head of Mark Lipman Service,
a company engaged in making industrial security in-
vestigations specializing in determining theft of merchan-
dise and embezzlements, Mark Lipman was employed by
Kayser-Roth in the fall of 1963 and early 1964 to make an
investigation at its Burlington , North Carolina, plant.
Having finished its investigation in Burlington , resulting
in the uncovering of theft and the discharge of those em-
ployees responsible, in June 1964 the Company, utilizing
Lipman's services, commenced an investigation of theft
in its Dayton, Tennessee, plant. This decision, and the
formalities connected with it, was made in Burlington and
was known only to Mr. Byrd, the executive vice president
of the hosiery division, and Glenn Coble, the general
manager of the seamless hosiery division. No company
official in Dayton was aware that this investigation was
taking place, nor did any Dayton official become aware
of the matter until August 27, the day of the interroga-
tion. For the purpose of the investigation, two detective
agents, Clayton Strickland and Robert Benderman, were
put to work in the Dayton plant as employees, Strickland
in the boarding room and Benderman in the shipping de-
partment. Thest two agents made daily reports concern-
ing their investigation of thefts to Lipman, which reports
in turn were mailed to Byrd in Burlington.
As a result of these efforts, sometime late in August,
Lipman suggested to Byrd that those employees men-
tioned in the reports as stealing hose should be inter-
rogated. This was postponed only briefly because one of
those involved in the alleged thefts, employee James
Buck Reel, had been discharged on August 21 for drunk-
eness. Through Lipman's efforts, and with the reason
therefore totally unknown to the Dayton management, it
was arranged through Coble in Burlington to have Reel
put back to work again for the purpose of completing the
investigation. With all arrangements completed on the
evening of August 27, the interrogation of those
suspected of thievery commenced.
Starting at approximately 7 p.m. on this date, Lipman
followed a procedure whereby each employee who was
suspected fo stealing hose was called into the office, was
asked his name, age, education, and other pertinent facts.
Lipman then informed the person that he had information
that he had been stealing hose According to the credited
testimony of Lipman, in most cases, within a few minutes,
the employee admitted that he had. If an admission were
made, Lipman made notes with respect thereto, and then
called into the room his secretary-office manager, Mrs.
Betty Richenback. At that point, in the presence of Co-
ble, Lipman dictated from his notes the statement which
Richenback took down. Richenback then left the room
and typed the statement while Lipman interrogated the
grouped next employee suspect. When Richenback returned with
reasons the typed statement, the employee whose statement it
10 McKenzie, a witness called by the General Counsel, and a friend of
Keith who operated a machine next to him on the third shift and with
whom he took his breaks, was, in my opinion, a biased witness, one who
was attempting to assist Keith in his case I find McKenzie, generally, like
Keith, an unreliable witness, one who changed his testimony on several
occasions and who continually evaded questions Keith whose demeanor
on the witness stand was unimpressive, admitted that on one occasion he
lied under oath before the Tennessee Unemployment ( ommission con-
cerning this matter I do not credit his testimony other than as specifically
set forth, or where it is corroborated by other credited testimony
" Exemplificative of this is his testimonial reply to a question
propounded on cross-examination when asked " . there is nothing to
require you to go on running materials through there and making seconds
or thirds, is there" Upon answering, "Yes" to this, and in turn being
asked for an explanation for his answer, Keith replied, "Well, you have to
make a living "
1' As testified to by McKenzie, by jumping the cycle, the operator is
able to pull more tights, and therefore, to make more money
KAYSER-ROTH HOSIERY CO. 417
was, was called back into the conference room. There, in
the presence of Coble and Richenback, Lipman read the
statement to him, asking as he went along, if it were cor-
rect. At the conclusion, the employee was again asked if it
were true, and, upon ascertaining from the individual that
it was, Lipman asked him to sign his affidavit. In each
case, after the employee signed his affidavit, it was then
witnessed by Richenback, Coble, and Lipman. According
to the credited testimony of Lipman and Richenback 13
every individual had his statement read to him and no one
was denied the privilege of reading his statement. In each
case, either the employee followed along with Lipman as
he read the affidavit, both of them looking at the paper at
the same time, or the employee followed on a copy of the
affidavit. Lipman emphatically denied that any pressure
was used on the suspected employees to sign statements,
or that any threat was made based upon their refusal to
sign statements. The longest time that any one was in the
room was perhaps 20 minutes. Lipman's testimony in this
regard is corroborated by the credited testimony of
Richenback , a most impressive witness. The record
reveals that only those who admitted to stealing were
then discharged by Earl Barger, and that no action was
taken against any employee who, although accused, did
not admit to theft. 14
Among those who signed statements admitting the theft
of hose were Stewart Calbaugh, James Buck Reel,
Vaughn Hensley, and William Pelfrey.15 Briefly as to
each, the record shows that Stewart Calbaugh was hired
around May 11, 1964, and worked as a laborer, finishing
floors and building racks. A month and a half later he was
transferred to the boarding room where he worked on the
third shift for, 2 months, and then on the second shift
under Supervisor Robert Wilkey for a short while before
his August 27 discharge. Calbaugh joined the Union in
April, and, by union letter dated April 23 and received by
the Respondent on April 27, the Respondent was ap-
prised of this fact, 2 weeks before Calbaugh was hired.
On one occasion about 2 weeks before his discharge, and
on several occasions afterwards, Calbaugh distributed
leaflets at the rear plant gate. James Buck Reel was hired
in August 1963, and worked in the dye house on the
second shift under Supervisor Wendell Borne until his
discharge on August 27. At some point in his employ-
ment, Reel joined the Union and attended two union
meetings. Vaughn Hensley was hired by the Respondent
on February 12, 1964, as a boarder in the boarding room.
He was so employed on the second shift under Super-
visor Robert Wilkey at the time of his discharge on Au-
gust 27. During his employment, Hensley joined the
Union, attending meetings, solicited three or four em-
ployees to sign cards, and handed out leaflets at the mill.
As noted heretofore under a discussion of 8(a)(1) con-
duct, Hensley was questioned about the Union on one oc-
casion during the last of June by Supervisor Charlie Kel-
ley, during which conversation, Hensley told Kelley that
he had joined the Union. William Pelfrey, known as
Jimmy Pelfrey, was hired by the Respondent on February
1, 1964, as a preboarder in the boarding room, and was
employed on the third shift under Supervisor Roy Stin-
nett at the time of his discharge on August 27. At some
point after the Union started its drive in April, Pelfrey
joined the Union and talked to others about joining. Ac-
cording to Pelfrey's testimony, about 6 weeks before his
discharge, and again about 4 weeks before his discharge,
he volunteered to Detective Strickland that he had signed
a union card.
With respect to their admissions, Calbaugh, in his af-
fidavit, stated that "shortly after I came to work here I
noticed other employees stealing socks and I started
doing the same thing. I would take 12 to 15 pair of socks
out at a time for my own personal use and would do so
two or three times a week. I would estimate in the past 3
months that I have taken about 500 pair of socks out."
Reel admitted in his statement that "about 6 or 7 months
ago I started stealing hose out of the plant by taking these
hose out of the plant. I would usually put these hose in a
black sack and walk out. I have taken out as much as 6
dozen at a time. I would estimate that I have taken 10
dozen per week for the past 6 months or about 250 dozen
hose." Hensley stated in his that "I have stolen about 12
pair of hose from Kayser-Roth in the past 4 months.
Some weeks I do not take any and some weeks I take two
pair a week." Pelfrey stated in his affidavit that "I have
been stealing hose from Kayser-Roth for my own per-
sonal use and benefit for the past 14 months and I take
hose out of here nearly every day, possibly three or four
pair a day or about 2 dozen per week and I would esti-
mate that since I have been working here I have stolen
about 500 pairs of hose," and that "I have picked up
some money in selling some of this hose [sic ] possibly $5
to $10 per week." Each of the four employees com-
menced his affidavit by stating that "I . ................ after
having been informed that I do not have to make a state-
ment make the following statement of my own free will,"
and concluded by stating that the statement is true and
correct to the best of my knowledge and belief.
The facts as above found are, with one crucial excep-
tion, substantially uncontested. The exception concerns
the interrogation of the four alleged discriminatees by
Lipman. The testimony of all four, if believed, would in-
dicate that their admissions were obtained under extreme
duress and threats of going to jail or the penitentiary, and
that, once taken they were forced to sign under threat of
arrest, and, with one exception, not permitted to read
their statements.16 I find their testimony, all of it, to be
completely lacking in credence. Apart from the fact that
both Lipman and Richenback impressed me with their
candor, and forthright unbiased demeanor while testifying
and that I credit without reservation their testimony on
this matter, I frankly do not remember when I, as an Ex-
aminer, have felt so strongly in discrediting a witness as
I do with respect to these four. I do not intend to set forth
a list comprised of example after example as to the basis
for disbelieving these employees, for the transcript of this
proceeding will, in that regard, speak for itself. And,
although I hesitate to make reference to four employees
in the same manner in discussing their credibility, in this
case I have no reluctance. Apart from the fact that all
four, when testifying concerning the interrogation by Lip-
13 Coble did not appear as a witness in this hearing.
14 In fact, Donovan Wilkey , a General Counsel witness and well-known
leader and official of the Union who was active in all leaflet distributions,
was one of those accused When he flatly and emphatically denied the ac-
cusation of having stolen any hose and refused to sign an admission, he
was told to go back to work.
i3 The record reveals that, in addition to these, employees Tommy
Thurman, Albert Calbaugh, Paul Hickman, and Clyde Ray Suttles, none
of whom is here involved, signed statements and were discharged.
16 None asserted, however, that he was physically threatened or that he
was physically prevented from leaving All four testified to the authentici-
ty of their respective statements and admitted that they had signed them
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
man testified in a manner strikingly similar, almost word
for word,17 based upon my observation of their demeanor
while on the stand I am firmly convinced that each was
bent upon proving his case without regard to the truth.
Generally, they evaded questions on cross-examination
and on questioning by me. Hensley, whose testimony at
times was implausible, reversed himself on a number of
occasions. Calbaugh, for example, when asked how many
employees worked with him in the boarding room, replied
that he had no idea, that he did not know whether it was
10 or 500. After having been admonished by me to
answer the question, Calbaugh admitted that there were
about 10 employees working with him. At one point Cal-
baugh's testimony was, in my opinion, reduced to an ab-
surdity when he testified that he signed the admission
because he, Calbaugh, who is 6 feet 3 inches, was scared
of Lipman, who is 5 feet 4 inches, that Lipman was "big
enough" and that he (Calbaugh) was "not big enough to
tangle with him." Pelfrey, at one point, on cross-examina-
tion, was in the process of testifying contrary to his board
pretrial affidavit. When counsel for the Respondent
started to question him with respect to his affidavit, an af-
fidavit taken by the Board field examiner, Alexander
Resin, in which Pelfrey swore that he read the affidavit,
Pelfrey testified, and reiterated his testimony, that he had
not read it, testifying that the board agent would not per-
mit him to read it, that he asked to read it and was told
that he could not. Thus, apart from the implausibility of
this testimony in this regard, if one were to believe his
testimony, which I do not, Pelfrey lied in his affidavit
when he swore that he read it. Thus, Pelfrey perjured
himself. I did not believe the man while he was testifying,
and I do not believe him now. An unbelievable amount of
Reel's testimony, lengthy as it was, is absolutely incre-
dible."' Thus, I do not credit the testimony of Stewart
Calbaugh, James Buck Reel, Vaughn Hensley, or William
Pelfrey, except where it is corroborated by other specifi-
cally credited testimony.
Thus, assuming as I do, the accuracy and veracity of
the statements of these four individuals, I find that all four
had engaged in stealing from the Company and that, when
suddenly and without warning they were confronted with
it, they admitted their conduct. True, as contended by
counsel for the General Counsel and for the Charging
Party, the evidence, in abundance, reveals that for years,
hose, in one stage or another of manufacture, had been
removed from the plant for personal use in varying
amounts with and without the consent of some supervi-
sion. Nevertheless, in my opinion, such does not render
it any less a crime.19 More important here, however, is
the absence of credible evidence tending to show that the
Respondent either initiated the investigation for the pur-
pose of getting at union advocates or, once under way,
selected the particular employees here involved because
they were union people.20 In this regard, the evidence
fails to show that any of these four could be considered
one of the union leaders. In fact, with respect to Reel, I
seriously question that at the time of these incidents he
had even joined the Union. According to the credited
testimony of Supervisor Wendell Borne, sometime prior
to Reel's discharge for drinking (August 21) Reel volun-
teered to Borne that he would not join the Union because
he had promised his close, and long-time personal friend
and company official, Leon Young, that "as long as he
was there that he wouldn't have anything to do with the
Union. `21 Leon Young remained as general superintend-
ent of the plant until his release on September 25. In
view of this, coupled with the fact that the evidence does
not reveal when Reel changed his mind and signed with
the Union or when he attended the two union meetings,22
I am inclined to feel that Reel did not, in fact, join the
Union until after his discharge when he felt that it was
decidedly to his advantage. I am persuaded, and find, that
the General Counsel has failed to prove company
knowledge of Reel's union affiliation at any time prior to
either of Reel's August discharges.
Under all of the circumstances, I find that the General
Counsel has failed to sustain his burden of proving by a
preponderance of the credible evidence that the Respond-
ent discharged Stewart Calbaugh, James Buck Reel,
Vaughn Hensley, or William Pelfrey, because of their
union activities in violation of Section 8(a)(3) and (1) of
the Act.
F. Alleged violations of Section 8(a)(4)23
1. Shirley Fugate
Shirley Fugate commenced her employment with the
Respondent in February 1962, as a first sewer under Su-
17, Clyde Ray Suttles, one of those discharged for stealing, but not an al-
leged discriminatee herein, testified on behalf of the Respondent. His
testimony , if believed , would indicate that no pressure or threats of any
kind were placed on the employees by Lipman, and that all of the "theft"
employees got together and had agreed to tell the same fictitious story of
signing because of threats under duress and implying that the union
representative, Rainey, was aware of it Suttles further testified that
Rainey also told him not to admit in his labor board affidavit to stealing,
which alleged advice he followed. However , as I have no more reason to
believe Suttles than I do the other four, I do not place any credence in his
testimony.
18 Robert Benderman , one of the two detective agents placed in the
plant and who testified as to theft matters on the part of Reel, credibly
testified that on the morning before he testified, which was June 8, the
next to last day of the hearing , while the hearing was in session, he saw
Reel outside the courtroom window, that Reel, in a threatening fashion,
shook his fist at him , at the same time, shaking his head from side to side
in a negative manner . As Reel was not placed on the stand for rebuttle
purposes, Benderman's testimony in this regard remains unrefuted I con-
sider this a threat to Benderman not to testify adverse to the interest of
Reel.
18 This, in my opinion, is so, apart from the existence of the posted rule
prohibiting the removal of company property.
20 Thus, I find without ment the position asserted principally by coun-
sel for the Charging Party that the theft investigation was a part of a com-
pany plan to break the Union and was devised as apretext for discharging
union adherents. As for his additional theory, there is no credible evidence
disclosing that the admissions of theft contained in the statements of these
four employees were in any way predicated upon entrapment
21 As set forth under the 8(a)(1) discussion , I do not credit Reel's
testimony as to an alleged August 18 conversation with Borne , wherein
Reel assertedly told Borne that he had joined the Union.
22 Reel testified that Borne was not present at either meeting He
further testified that Detective Strickland talked to him once or twice
about the Union and meetings, but his testimony does not indicate that he
told Strickland that he had joined or that he actually attended any
meetings. Strickland, who became ill during the hearing and was hospital-
ized, did not testify herein.
23 Sec. 8(a)(4) of the Act reads as follows:
Sec. 8 It shall be an unfair labor practice for an employer-
(4) to discharge or otherwise discriminate against an employee
because he has filed charges or given testimony under this Act.
KAYSER-ROTH HOSIERY CO. 419
pervisor Rhoda Housley. She was granted a 6-month
maternity leave starting in March 1963, and a 6-week
leave of absence starting February 1, 1965, because of an
ear infection. On Monday, March 8, 1965, a week before
her leave was to be up on March 15, Fugate went by the
plant where she talked with Rhoda Housely. Fugate told
her that she was ready to come back to work the next
Monday. Housely told Fugate that she did not have
anything available right then, and for her to come back
the following Friday to see if she had a machine open
then. Fugate followed her suggestion and returned that
Friday and was again told by Housley that she still did
not have a machine available, and that if Fugate would
come back on Monday, her leave terminal date, she
would have her separation slip ready for her and she
could draw unemployment compensation. Fugate went
by the plant the following Monday and picked up her
separation notice, which indicated that she had been laid
off for lack of work. Fugate thereafter drew unemploy-
ment compensation. Housely's version of Fugate's visit
to the plant on Friday, March 12, is about the same as
Fugate's except that Housely credibly testified that when
Fugate came by and found that nothing was available and
that she would have to take a layoff slip, she told Housely
that her mother was sick, that she did not have anyone to
take care of the children, and that it wculd be better for
her anyway if she could be off and draw unemployment
compensation.
On July 13, 1965, after having testified on June 1 on
behalf of the General Counsel during the earlier part of
this hearing'24 she returned to the plant with Frances Hill
and spoke to General Manager Everett Roberson in the
office, asking him if he had any work available as a first
sewers Roberson replied that he really did not know, that
he would have to check into it. Frances Hill asked him
whether he had any second sewing open, to which he did
not reply. Fugate asked him about a boarding room job
that she said she would like to try. Roberson asked her
about the third shift, and Fugate replied that she would
take any shift he would give her. When Hill asked Rober-
son whether they should contact him, he said that he did
not think there would be any use, that he knew they were
available, and that if he needed them he would give them
a call Roberson corroborated generally this conversation
as testified to by Fugate. However, he testified that in
reply to their requests for second sewer as well as
preboard work, said he would have to check on both, yet,
before checking, he told them that "there won't by any
need for you to call back because I don't know of
anything any way near in the future that we will have
open."
Fugate was not thereafter called back by the Respond-
ent, nor does it appear that she again attempted to
secure employment at the plant. My conclusionary
findings with respect to Shirley Fugate are set forth
hereinafter in connection with Frances Hill's case.
2. Frances Hill
Frances Hill first worked for the Respondent in 1961
as a first sewer under Supervisor Rhoda Housley, and
continued to do so until she was granted a maternity leave
commencing December 17, 1964. By letter dated
December 18, 1964, Hill was officially apprised of her
leave approval and told that she would be expected to
return to work on June 17, 1965, or 3 months after the
birth of her child. The letter further advised her that if she
should be unable to return on this date for her to contact
Rhoda Housely and discuss the matter.
While on leave, Hill testified on June 2, 1965, on behalf
of the General Counsel during the earlier part of this
hearing.25 Thereafter, according to Hill, she called the
plant on June 16, and told Housley that her leave would
be up the next day and that she wanted to come back to
work. Housely asked her if she were able to return, and
upon Hill's assuring her that she was, Housley replied
that she did not have any first sewing machine for her,
and that she would be able to draw unemployment com-
pensation. Hill asked Housely when she could come in
and pick up her separation slip, to which Housely replied
just anytime at her convenience. The following day, June
17, Hill, accompanied by Shirley Fugate, went by the
plant and picked up her separation slip from receptionist
Peggy Austin, which reflected that she had been laid off
for lack of work.26
Thereafter, Hill went with Shirley Fugate to the plant
on July 13, and talked with Roberson. Hill's version of
the ensuing conversation is substantially corroborative of
Fugate's, as recited in the treatment of Fugate's case, ex-
cept that, according to Hill, in addition to asking about a
second sewing job, she too asked for a boarding room
position and Roberson paid little or no attention to her.
Hill and Fugate then left, and Hill, like Fugate, was never
thereafter called back, nor did she again seek work with
the Respondent.
Credible testimony on the part of employee Jewell
Toole, a first sewer who had been so employed for 4
years, discloses that 10 new employees were hired as first
sewers in the sewing department between July 8 and Sep-
tember 10, 1965, 4 of them within 9 days of the July 13
conversation when both Fugate and Hill applied to
Roberson for work and were told that he did not know of
any openings in the near future. Roberson admitted that
in mid-July and into August the Respondent was con-
fronted with an unexpected overflow of work from one of
its other plants, necessitating the hiring of a number of
first sewers. He also admitted that he learned of this after
the plant vacation ended, which was July 5, more than a
24 Fugate's earlier testimony was confined to the one occasion in April
1964, alluded to above under a discussion of 8(a)(1) conduct , where in
answer to her question she was assured by Supervisor Parker Bean in
Everett Roberson's presence that she was not going to be fired because of
the Union, and also informed that the Union cutild not help the employees
and the Company was going to fight it.
25 Hill had testified (1) to the April 1964 incident in Supervisor Parker
Bean's office where, in the presence of Everett Roberson , Bean assured
her, as he did several others, that there was nothing to the rumor going
around that those who had attended the recent Wolf Creek union meeting
were going to be fired, and where Bean also stated that "he knew he
couldn't fire me over a union , but ... that he could get me messed up"; (2)
to a surveillance incident involving Ann Thurman at the Wolf Creek
union meeting on April 10, 1964; and (3) to matters pertaining to the
discharge of employee Peggy Wright.
21 Housley 's version of the telephone conversation with Hill is that,
after telling Hill that she did not have a new machine for her (the type Hill
had worked on), Housley indicated that she could have a black machine
(an older type model), fixed up which she could use. According to
Housley, Hill -questioned that she could make production on a black
machine and , therefore , indicated that she would rather not have it and
would prefer to be off and draw unemployment compensation . Although
I found both Rhoda Housley and Frances Hill generally to be most
forthright and credible witnesses while appearing on the witness stand, I
must credit Hill's denial that on this occasion Housley offered her or even
discussed a black machine.
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
week in advance of his conversation with Hill and Fu-
gate.
Notwithstanding Roberson's unrefuted testimony that
these new first sewers were hired at the door, and the fact
that Hill and Fugate applied to Roberson rather than to
Housley or the receptionist, under all of the circum-
stances, and on the record as a whole, I find that first
sewer jobs were available at the time that both Hill and
Fugate were applying to Roberson on July 13.27 and that
they were refused reemployment at that time because of
their having rendered testimony adverse to the interests
of the Respondent some few weeks before in this
proceeding. I find that in so doing, the Respondent vio-
lated Section 8(a)(3) and (4) of the Act
3. Kenneth Lee Hughes
Kenneth Hughes, the third discriminatee whose ter-
minatior is allegedly based upon his having rendered
testimony in this proceeding adverse to the Respondent,
was employed by the Respondent as a knitter for 9 years
prior to his discharge on June 14, 1965. At the time of his
separation, Hughes worked on the first shift under Super-
visor Ralph Mayes.
As one of the knitters in the knitting department,
Hughes was paid by the number of dozen socks turned in.
Approximately 10 o'clock on the morning of June 14,
1965, 2 weeks after testifying in this proceeding, Mayes
approached Hughes at work, telling him that he wanted
to see him in his office Once in the office, Mayes, point-
ing to several bundles of socks, instructed Hughes to
count them. According to Hughes, he did so, and, upon
reaching the fifth dozen, noticed that "there was two
socks gone out of it." At this, Mayes told Hughes that
Roberson had told him to tell him (Hughes) that he was
fired, and to pay him off. When Hughes asked Mayes if he
were firing him, Mayes said, that if it were up to him he
would put Hughes back to work, and that he suggested
that they both go upstairs and talk with Roberson about
his job. This they did, and, upon meeting Roberson, went
into the latter's office where Hughes queried "Everett,
what are you firing me for9" Roberson replied, "You
know what I am firing you for." When Hughes mentioned
that Mayes had indicated to him that he (Roberson) had
counted his dozens over the weekend and found that they
were short, Roberson stated that they were short, and
that "you are done fired." At this, according to Hughes'
testimony, Hughes asked Roberson to hire him back, say-
ing, "Everett, will you give me one chance?" to which
Roberson replied that he would riot At this point, Mayes
left the office and Roberson, ascertaining from Hughes
that he had not been paid as yet, suggested that they go to
the manager's office Before arriving. Roberson noticed
that Hughes was wearing a pair of Kayser-Roth socks,
and so stated, to which Hughes agreed that they were
Roberson asked when and how he got them and Hughes
replied that Mayes had given them to him, that "he gives
me socks all along," to which Roberson allegedly replied,
"Oh, there ain't nothing wrong with that."
Upon arriving at the manager's office, Roberson told
Jerry Ward, the office manager, that he wanted to get
31 Even if not actually open, I find that on this date Roberson knew that
they would be open in 2 or 3 days and that he purposely withheld this in-
formation from the girls
Hughes paid "and get him out of here." Hughes told
Roberson that he had done him dirty, which Roberson de-
nied. Hughes then accused Roberson of taking the
missing socks out of the bundle himself, which Roberson
denied, and then accused Roberson "If you didn't take
them out, you know who took them out," which, again,
Roberson denied. Hughes then accused Roberson of
lying in his testimony at the hearing because "You told
them down there that you never had mentioned Union to
none of the employees,. . and I know that's one you told
because. you come to me and ask me how I felt about
the Union." Again, according to Hughes, Roberson de-
nied the accusation. Hughes then asked for his separation
slip, and Roberson left and returned shortly with it, in-
dicating that Hughes had been discharged for dishonesty.
Hughes protested, because he would not be able to draw
unemployment compensation with this reason on his
separation notice, asking Roberson if he could not put
some other reason on it. Roberson allegedly replied that
he could, but that he (Hughes) would "run to Mr. Benton
or the Labor Board." At this, Hughes agreed that he in-
tended to "run to them," and then Hughes threatened that
"you are going to have to face me in court over this."
Hughes then accepted his separation notice as written
and his pay and left the plant.
With respect to this matter, Ralph Mayes testified that,
on the Thursday before, it was reported to him by inspec-
tors that some of Hughes' dozens were short. On Friday,
after the shift was over, Mayes counted the dozens and
found that approximately 10 dozens had one or two socks
missing in each. Mayes also had two employee fixers dou-
ble check and verify his count. Mayes locked the work in
his office over the weekend, and on Monday confronted
Hughes with the dozens. After Hughes had counted the
socks and found some short, Mayes, who had been told
sometime earlier by Roberson that Hughes had had a
prior warning on this same thing, told him that he had
been warned by Roberson before for this, and that he
would have to let him go. When Hughes denied having
been warned, and said he would like to see Roberson,
they went to the latter's office. There, confronted with
Roberson's statement concerning a prior warning,
Hughes admitted it, and Roberson directed that he be
paid off.
Roberson's version, corroborative of Mayes and a sub-
stantial portion of Hughes, is that he was not aware of
Hughes' shortages on this occasion until Mayes brought
Hughes to his office, and that only then did Mayes ap-
prise him that Hughes was short. Roberson confronted
Hughes with his earlier shortage and warning,28 and
Hughes admitted it but asked to have another chance.
Upon ascertaining from Mayes that others had checked
his count, Roberson told Hughes that they could not keep
giving him chances, that they were going to have to let
him go. It was at this point that Hughes got mad and
started raising his voice. Roberson's account of the
remainder of the conversation is similar to that of
Hughes, including the latter's accusation that Roberson
"cooked this whole thing up to get rid of me."
The Respondent's position with respect to Hughes is
that Hughes shorted his sock count, that he did so after
21 Roberson testified that about a year earlier inspectors had reported
that Hughes' work was coming up short, that he personally counted the
dozens, then had Hughes count them himself, and then told Hughes that
if he shorted his dozens again he would fire him
KAYSER-ROTH HOSIERY CO. 421
having had an earlier reprimand for the same thing, and
that he denied doing it, accusing Roberson of concocting
a case against him. More so than in most cases, it would
appear that the resolution of the immediate question
here depends upon a credibility determination . In short,
Roberson and Mayes maintained that Hughes was dis-
honest, that he was cheating the Company by shorting
his dozens, whereas Hughes asserts that he had not
done so , and that Roberson had deliberately concocted
the case against him.
A number of factors militate against lending credence
to Hughes ' testimony and to his assertion . Hughes ap-
peared to be bent on building a strong case against the
Respondent . In the earlier part of this proceeding,
Hughes testified at some length in support of the General
Counsel 's case concerning Euel Tate , testifying as to his
experiences of having bad work returned to him (Hughes)
over a perioci of a year. At the reopened hearing while tes-
tifying on his own behalf, Hughes accused Roberson in
their discharge conversation on June 14 of falsifying his
earlier testimony by not telling about his having inter-
rogated him concerning how he felt about the Union. Had
Hughes in fact been interrogated by Roberson , as he now
indicates, it is strange indeed that he did not apprise the
General Counsel of it earlier and that he did not testify to
it in the earlier part of this proceeding. In fact , Hughes did
not testify to any union conversations with Respondent's
supervisors . Because of this, and not because I do not
think Roberson otherwise inclined , I do not believe it oc-
curred.
Hughes was quick to accuse the Respondent of things
other than the instant matter. His earlier testimony in-
dicates that during the 12-month period after the Union
came in, he got back bad work about every day, and on
many occasions the work was not his . 29 In his latter
testimony on cross -examination Hughes testified that
most of the time that bad work came back it was some-
body else's work and not his, and admitted that on all of
these occasions he openly accused the Company of the
same thing he is doing now, of concocting a false case
against him. As noted in part at least in the discussion of
Tate's discharge , bad work as well as short dozens is
caught by inspectors , approximately one inspector for 15
knitters , who are employees and not members of manage-
ment.
Hughes, in denying that he had ever been reprimanded
by Roberson before being short on his sock count, was
not convincing. His reply to the question on direct ex-
amination was "not that I ever knowed [sic] of," and to
Respondent's counsel on cross-examination as to
whether Roberson had made him recount socks and
threaten to fire him if he ever did it again , his reply was "I
don't remember it if he did ." I believe any man caught at
cheating his employer and threatened with discharge for
dishonesty , particularly within a year , would remember
it, and, if it did not happen, that his answer on the witness
stand would be much more persuasively negative than
was the reply of Hughes here. Apart from this, Hughes,
while testifying , did not impress me as a truthful witness.
He was continuously evasive under cross-examination
and repudiated a part of his pretrial affidavit , albeit a
minor one . Accordingly , as against Mayes, who testified
in a most forthright manner , and Roberson, whose
testimony as to this matter appears credible , I do not
credit the testimony of Hughes where it is not cor-
roborated by other credited testimony.
As to Hughes' assertion that Roberson concocted a
false case against him because of his testifying herein, I
find no direct evidence to support such a claim . There is
no evidence to counteract the testimony of Mayes that
employee inspectors were the ones to find the short count
on Hughes ' work . 30 Furthermore , Hughes, by his own ad-
mission , had been active in the Union since early 1964, a
fact he had not hidden , and a fact known to the Respond-
ent. Had the Respondent wished to get rid of him, based
upon his own admission , as well as on company records,
as to his poor quality work during the year, it did not in
my opinion, need to build a false case against him.31
Finally, in my opinion , one who is not guilty of a charge
and honestly feels that a false case has been made against
him, does not ask for another chance as did Hughes,
when , by his own admission on direct examination, he
said , "Everett, will you give me one chance."
On these facts , and for the reasons enunciated, I do not
believe that the Respondent "cooked up " a false case
against Hughes anymore than it did , as Hughes charged,
throughout the year with respect to deliberately returning
bad work of others to him. I find that the discharge of
Kenneth Hughes on June 14, 1965 , was for cause, and in
no way motivated by union considerations . Accordingly,
I find that the Respondent's action in this regard did not
violate Section 8(a)(3) and (4) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the operations of
the Respondent described in section I, above, have a
close , intimate , and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent has engaged
in certain unfair labor practices , it is recommended that
it cease and desist therefrom and that it take certain affirm-
ative action which is necessary to effectuate the policies
of the Act.
It having been found that the Respondent unlawfully
discharged Bobby Ray Cox, Mary Francis Bowen, Ken-
neth Toole , Peggy Wright , and James W. Suttles, and
refused to reemploy James W. McMillian , in violation of
Section 8(a)(3) and (1) of the Act, and refused to reem-
ploy Shirely Fugate and Francis Hill, in violation of Sec-
tion 8(a)(3) and (4) of the Act, it is recommended that the
Respondent offer the above-named individuals reemploy-
ment to their former or substantially equivalent positions,
21 The receipt of bad work by a knitter, regardless of whose it is, does
not require a reworking or any further action on his part
30 Hughes ' testimony that he counted his socks on the Friday before
and found none missing is of no moment in view of Mayes ' testimony that
the short count was reported to him by the inspectors on the Thursday be-
fore
31 Hughes had been one of the three , along with Tate and another
knitter named Robbie Dennis , who had an unusually high percentage of
bad work which was unacceptable and, in January 1965 , was given 2
weeks to improve his work. Hughes did so and was retained. Whereas
Tate, also a union advocate , and Dennis did not, and were dismissed.
308-926 0-70-28
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and make them whole for any loss of earnings they may
have suffered as a result of the discrimination against
them , by making payment to them of the sums of money
equal to the amount that they would have earned from the
date of the discrimination to the date of the offer of reem-
ployment , less net earnings during said period to be com-
puted on a quarterly basis in the manner established by
the Board in F. W. Woolworth Company, 90 NLRB 289,
and shall include the payment of interest at the rate of 6
percent to be computed in the manner set forth by the
Board in Isis Plumbing & Heating Co., 138 NLRB 716.
In this regard, it is further recommended that the Respond-
ent preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records and re-
ports, timecards , and all other records necessary to com-
pute the amount of backpay.
In view of the fact that the unfair labor practices com-
mitted are of a nature which strikes at the root of em-
ployee rights safeguarded by the Act, it is further recom-
mended that the Respondent cease and desist from in-
fringing in any manner upon the rights guaranteed in Sec-
tion 7 of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. Kayser- Roth Hosiery Co., Inc., is engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Textile Workers Union of America, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of
the Act.
3. By discriminating in regard to the hire and tenure of
employment of Bobby Ray Cox, Mary Francis Bowen,
Kenneth Toole , Peggy Wright, James W. Suttles, and
James W. McMillian , thereby discouraging membership
in and activities on behalf of the above-named labor or-
ganization , the Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
4. By discriminating in regard to the hire and tenure of
employment of Shirley Fugate and Frances Hill, thereby
discouraging membership in and activities on behalf of
the above -named labor organization , the Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) and (4) of the Act.
5. By interfering with , restraining , and coercing its em-
ployees in the exercise of the rights guaranteed by Sec-
tion 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
6. The Respondent did not violate the Act by dis-
criminating with respect to the hire and tenure of employ-
ment of Earl Calbaugh , Eugene Yates , Charles Wayne
Porter , Jean Ella Potter , Doris Smith , Erma June Keylon,
Noreen Nash , Shirley Shaver Wilkey, Bobbie Sue Dunn,
Ronald W. Patton , Calvin Creekmore , Betty Stout, Gar-
land Stinnett , Conway G. Ballard , Jr., Euel Robert Tate,
Robert Allen Smith , Hubert Donald Keith . Stewart E.
Calbaugh , James Buck Reel, Vaughn Hensley, William
C. Pelfrey, and Kenneth Lee Hughes
7. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case,
it is recommended that Kayser- Roth Hosiery Co., Inc.,
its officers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discharging or refusing to reemploy , or otherwise
discriminating against employees in order to discourage
membership in or support of the Textile Workers Union
of America, AFL-CIO, or any other labor organization,
or infringing in any manner upon the rights guaranteed in
Section 7 of the Act.
(b) Discharging , refusing to reemploy , or otherwise
discriminating against employees for giving testimony
under the Act.
(c) Spying upon and keeping under surveillance union
meetings and union activities of its employees.
(d) Threatening its employees that it would engage in
surveillance of union meetings.
(e) Threatening its employees , in a notice to its em-
ployees posted at its plant and mailed to its employees,
that they would suffer serious harm if they joined the
Union or engaged in union activities.
(f) Discouraging an employee from honoring a sub-
pena of the Board which had been duly served.
(g) Creating an impression of surveillance of em-
ployees' union activities by telling an employee that the
employer had information concerning the employee's
wife influencing people to attend union meetings.
(h) Attempting to prevail upon employees to secure
withdrawal from the Union.
(i) Interrogating its employees concerning their union
membership , activities , and desires , and the union mem-
bership and activities of other employees.
(j) Threatening its employees that it would close or
move its plant if the Union were successful.
(k) Threatening its employees with discharge or other
reprisals if they joined the Union or engaged in activities
on behalf of the Union.
(1) Threatening its employees with the withdrawal of
existing privileges if the Union came in.
(m) Coercing employees by telling them that their en-
gaging in union activities would hurt their chances of ad-
vancing with the Company.
(n) Preventing an employee from engaging in a pro-
tected activity by ordering him to remove from his pocket
an envelope publicizing the Union.
(o) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their right to
self-organization, to form, Join, or assist the Textile Work-
ers Union of America, AFL-CIO, or any other labor or-
ganization, to bargain collectively through representa-
tives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining
or mutual aid or protection , or to refrain from any or all
such activity.
2. Take the following affirmative action , which will ef-
fectuate the policies of the Act:
(a) Offer to the employees , whose names appear in at-
tached Appendix A, reinstatement to their former posi-
tions or to substantially equivalent positions without
prejudice to their seniority and other rights and privileges
previously enjoyed , and make each such employee whole
for any loss of pay he may have suffered by reason of the
Respondent ' s discrimination against him , in the manner
KAYSER-ROTH HOSIERY CO. 423
and according to the method set forth in the section enti-
tled "The Remedy."
(b) Notify those employees named in Appendix A if
presently serving in the Armed Forces of the United
States of their right to full reemployment upon application
in accordance with the Selective Service Act and
Univeral Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records and re-
ports, timecards, and all other records necessary to com-
pute the amount of backpay due under the terms of this
Recommended Order.
(d) Post, at its Dayton, Tennessee, plant, copies of the
attached notice marked "Appendix A."32 Copies of said
notice, to be furnished by the Regional Director for Re-
gion 10, upon being duly signed by the Respondent's
representative, shall be posted by it, immediately upon
receipt thereof, and be maintained for at least 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 10, in
writing, within 20 days from the receipt of this Decision,
what steps the Respondent has taken to comply
herewith.33
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges that the Respondent vio-
lated the Act by discriminating concerning hire and
tenure of employment of Earl Calbaugh, Eugene Yates,
Charles Wayne Porter, Jean Ella Potter, Doris Smith,
Erma June Keylon, Noreen Nash, Shirley Shaver Wil-
key, Bobbie Sue Dunn, Ronald W. Patton, Calvin Creek-
more, Betty, Stout, Garland Stinnett, Conway G. Ballard,
Jr., Euel Robert Tate, Robert Allen Smith, Hubert
Donald Keith, Stewart E. Calbaugh, James Buck Reel,
Vaughn Hensley, William C. Pelfrey, and Kenneth Lee
Hughes.
IT IS FURTHER RECOMMENDED that paragraphs 9, 11,
15, 18, 19, 20, and 21, of the complaint dated March 26,
1965, and paragraph 6 of the complaint dated April 29,
1965, be dismissed.
IT IS FURTHER RECOMMENDED that the complaint
herein be dismissed insofar as it alleges that the Respond-
ent engaged in any unlawful conduct other than as found
above.
32 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
33 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Respond-
ent has taken to comply herewith "
APPENDIX A
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT spy upon and keep under surveil-
lance union meetings and union activities of our em-
ployees.
WE WILL NOT threaten our employees that we will
engage in surveillance of union meetings.
WE WILL NOT threaten our employees with serious
harm if they join the Union or engage in union activi-
ties.
WE WILL NOT discourage our employees from
honoring subpenas of the Board.
WE WILL NOT create an impression of surveillance
of employees' union activities by telling our em-
ployees that we have information that their relatives
are influencing people to attend union meetings.
WE WILL NOT attempt to prevail upon employees
to secure withdrawals from the Union.
WE WILL NOT interrogate our employees concern-
ing their union membership, activities, and desires,
or the union membership and activities of other em-
ployees.
WE WILL NOT threaten our employees with the
closing or moving of the plant if the Union is success-
ful.
WE WILL NOT threaten our employees with
discharge or other reprisals if they join the Union or
engage in activities on behalf of the Union.
WE WILL NOT threaten our employees with the
withdrawal of existing privileges if the Union comes
in.
WE WILL NOT coerce our employees by telling
them that their engaging in union activities will hurt
their chances of advancement with the Company.
WE WILL NOT prevent our employees from engag-
ing in protective activities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization, to form, join, or assist
the Textile Workers Union of America, AFL-CIO,
or any other labor organization, to bargain collective-
ly through representatives of their own choosing, and
to engage in other concerted activities for the pur-
pose of collective bargaining or mutual aid or protec-
tion, or to refrain from any or all such activities.
WE WILL NOT discharge or refuse to reemploy, or
otherwise discriminate against employees in order to
discourage membership in or support of Textile
Workers Union of America, AFL-CIO, or any other
labor organization, or infringe in any manner upon
the rights guaranteed in Section 7 of the Act.
WE WILL NOT discharge, refuse to reemploy, or
otherwise discriminate against employees for giving
testimony under the Act.
WE WILL offer to the employees, whose names ap-
pear below, reinstatement to their former positions
or to substantially equivalent positions without
prejudice to their seniority and other rights and
privileges previously enjoyed, and make each such
employee whole for any loss of pay he may have suf-
fered by reason of our discrimination against him.
NOTICE TO ALL EMPLOYEES
Bobby Ray Cox
Pursuant to the Recommended Order of a Trial Ex- Mary Francis Bowen
aminer of the National Labor Relations Board , and in Kenneth Toole
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Peggy Wright
James W. Suttles
James W. McMillian
Shirley Fugate
Francis Hill
All our employees are free to become, remain, or to
refrain from becoming or remaining , members of Textile
Workers Union of America , AFL-CIO, or any other
labor organization.
KAYSER - ROTH HOSIERY
Co., INC.
(Employer)
Dated By
(Representative) (Title)
NOTE: We will notify the above-named individuals if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon application
in accordanance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 730 Peachtree
Street , NE., Room 701, Atlanta, Georgia 30308,
Telephone 526-5760.
APPENDIX B
PLANT RULES
All personnel are responsible for complying with plant
rules governing conduct in the plant . The Company
reserves the right to amend or add to these rules as condi-
tions and/or circumstances necessitate changes.
1. WORKING TIME- Everyone is expected to re-
port promptly for work at the scheduled shift time.
Do not arrive more than 15 minutes before starting
time and remain at work until the stopping time ex-
cept for brief necessary absences. Please do not
remain in the plant more than 15 minutes after the
end of the shift.
2. ABSENCE FROM WORK-Anyone who is
unable to report for work because of sickness or ex-
treme emergency should notify his supervisor at
once. Dropping from payroll may result from unex-
cused absence.
3. CONDUCT-The use of profane. abusive or
threatening language toward others or fighting or
threatening bodily injury to anyone is prohibited. No
running or horseplay is permitted.
4. VISITING DEPARTMENTS-No one is to
visit departments in the plant other than those in
which employed except on Company business, un-
less given permission to do so by the supervisor
5. SMOKING-No smoking is permitted in he
plant other than in smoking areas.
6. DRINKING-The possession or consumption
of intoxicating liquors, wines, or beer on Company
property, or reporting for work under the influence
of or with the odor of same on breath is not per-
mitted.
7. TELEPHONE-The use of Company
telephones is limited to Company business. Incom-
ing messages will be delivered.
8. SAFETY-Every injury should be reported to
the First Aid attendant or supervisor immediately.
First Aid will be administered promptly and medical
services will be provided if necessary No injury
shall be neglected, regardless of how small . Safety
rules should be observed at all times.
9. PROPERTY -Wilfully damaging buildings,
machinery, supplies, materials, or other Company
property in any way or removing such property is
strictly prohibited. Damaging or removing other per
sons' property is forbidden.
10. TRESPASS-No one is allowed in the plant at
any time other than when reporting for work or when
at work, except by permission of the management.
Loitering or remaining on Company property after
work day or shift is ended, except when waiting for
transportation, is not permitted
11. SOLICITATIONS- No solicitation will be
permitted except United Fund or approved similar
agencies.
12. ASSIGNMENTS-Unless provided by law,
the Company will not accept wage orders or assign-
ments for the payment of delinquent taxes or debts
to third persons . Repeated wage assignments may
cause dismissal.
13. CHANGE OF ADDRESS-The supervisor or
the Personnel Director should be notified promptly
of any change in address.
APPENDIX C
To ALL EMPLOYEES
Since the Union is putting on a campaign to try to get
in here, a good many questions have arisen with regard to
the following matters. We believe that we should answer
these questions as clearly as we can for everybody alike.
It seems to us, furthermore, that you are entitled to know
definitely what the Company's position is on these sub-
jects:
(1) This matter is , of course, one of concern to the
Company. It is also, however, a matter of serious
concern to you and our sincere belief is that if this
Union were to get in here , it would not work to your
benefit but, in the long run, would itself operate to
your serious harm.
KAYSER-ROTH HOSIERY CO.
(2) It is our positive intention to oppose this
Union and by every proper means to prevent it from
coming inhere.
(3) We would like to make it clear that it is not
necessary, and it is not ever going to be necessary,
for anybody to belong to the Hosiery Workers
AFL-CIO Union, or any other Union, in order to
work for this Company. The law of Tennessee
guarantees this to you.
(4) Those who might join or sign up with this
Union are not going to get any advantages or any
preferred treatment of any sort over those who do
not join or belong to any Union.
425
(5) If anybody causes you any trouble at your
work or puts you under any sort of pressure to join
the Union , you should let the Company know, and
we will undertake to see that this is stopped.
(6) No person will be allowed to carry on Union
organizing activities on the job . Anybody who does
so and who thereby neglects his own work or inter-
feres with the work of others will be subject to
discharge.
Anybody who tells you anything contrary to what is
stated above is not telling you the truth.
DAYTON DIVISION
KAYSER-ROTH
HOSIERY COMPANY