Kendall Co.

National Labor Relations Board - Board Decisions

Mar 3, 1971

188 N.L.R.B. 805 (N.L.R.B. 1971)

KENDALL COMPANY
Kendall Company and Textile Workers Union of
America, AFL-CIO, CLC. Case 10--CA-8366
March 3, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On November 5, 1970, Trial Examiner Sidney J.
Barban issued his Decision in the above-entitled pro-
ceeding, finding that Respondent had engaged in and
was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, Re-
spondent filed exceptions to the Trial Examiner's De-
cision and a supporting brief.
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 Trial
Examiner made at the hearing and finds that no preju-
dicial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner and hereby orders that
the Respondent, Kendall Company, Albertville, Ala-
bama, its officers agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's rec-
ommended Order.,
1 In footnote 15 of the Trial Examiner 's Decision , substitute "20" for "10"
days
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Trial Examiner: This matter was heard
at Guntersville, Alabama, on July 29, 1970 (all dates herein
are in 1970 unless otherwise noted). The complaint, issued
on June 25, based upon charges filed on May 28, alleges that
the above-named Respondent violated Section 8(a)(1), (3),
and (4) by issuing written warnings to employee Orv al F.
Waldrop, because of his activities for and membership in
805
the above-named Charging Party (herein the Union), his
participation in protected concerted activities, and because
he gave testimony in a pnor proceeding under the Act,
entitled The Kendall Company, Case 10-CA-8119, before
Trial Examiner James V. Constantine (decided by the
Board on October 9, 1970, 185 NLRB No. 137).
Respondent' s answer admits allegations of the complaint
sufficient to support the assertion of jurisdiction under cur-
rent standards of the Board, and to support a finding that
the Respondent is a labor organization within the meaning
of the Act. The answer denies the commission of any unfair
labor practices.
A brief has been received from the General Counsel only.
Upon the entire record in this case, from observation of the
witnesses, and after due consideration of the brief filed, the
Trial Examiner makes the following:
FINDINGS AND CONCLUSIONS
I THE PRIOR PROCEEDING[
It would appear from a stipulation of facts in the previous
proceeding that the Union's campaign to unionize
Respondent's Albertville, Alabama, plant began sometime
before September 8, 1969. On that date the Union filed a
representation petition with the Board's Regional Office,
which, after a hearing held on September 30, 1969, sched-
uled an election to be held on December 19, 1969. The
election was postponed indefinitely pending Respondent's
request for review of the representation proceedings which
was granted by the Board.
Orval F. Waldrop (the alleged discriminatee in this mat-
ter), according to the testimony of employee Benny Hooper
in the present proceeding, engaged in oen activities in
support of the Union, during the course of the Union com-
paign, as did Hooper.
Waldrop also appeared as a witness and gave testimony
in the prior proceeding, on April 1, in support of a com-
plaint issued by the Regional Director of the Board alleging
that Respondent had violated the Act by (1) the discharge
of employee J. L. Lacy because of his activities on behalf
of the Union, (2) interrogation of employees and threaten-
ing employees in respect to Union activities, and (3) issuing
a written warning to employee Allan Templeton because he
engaged in Union activities and gave testimony in the previ-
ous representation hearing.
Study of Waldrop's testimony in the prior proceeding (he
is identified in that record as O. F. Waldrup) indicates that
he was expected to testify principally concerning an alleged
incident concerning removal of a Board Notice of Election
by a supervisor, and with respect to Respondent' s alleged
practice with respect to warning notices to employees nor
the advent of the Union ad thereafter.z Respondent's
i Upon request of the General Counsel , and in accordance with my discus-
sion with the parties at the hearing, I have taken official notice of the tran-
script of hearing in the prior proceeding before Trial Examiner Constantine.
However, except as specifically stated herein , no reliance has been placed on
matters set forth in the transcript of the prior proceeding Cf Ortranx Inc,
173 NLRB No 57, fn 3
2 Through Waldrop and other witnesses , in the pnor proceeding, General
Counsel sought to show that prior to the advent of the Union " it was practi-
cally unheard of" for employees other than weavers to receive a warning, but
that such warnings were issued with frequency after the beginning of the
Union campaign and that this condition diminished after the middle of
January The Trial Examiner in the prior proceeding sustained an objection
to this testimony for failure of General Counsel to establish a proper founda-
tion indicating that Waldrop had opportunity or reason to know these facts.
(Continued)
188 NLRB No. 118
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
objections to this testimony being sustained after some ar-
gument , Waldrop's remaining testimony was quite brief.
The Board, in the prior proceeding, The Kendall Compa-
ny, 185 NLRB No. 137, found that Respondent, at its Al-
bertville plant, discharged employee Lacy because of his
Union activities, and interrogated and threatened employ-
ees in respect to their Union activities, in violation of the
Act, but dismissed the allegations of the complaint that
Respondent had issued a warning to employee Templeton
because of his Union activities and testimony in the prev-
ious representation case.
It was further found that Respondent entertained an an-
tiunion animus at the Albertville plant as indicated, in part,
by interrogation of an employee by Overseer P. J. Strawn
(also referred to in the prior record as "Jerry" Strawn), br
Strawn's statement that Respondent "didn't want a union,
by the statement of Assistant Overseer Keener that "We'll
get rid of all you boys that are for this Union,"3 and by
Keener's daring employee Templeton "to present a griev-
ance to the NLRB if the latter did not like the way he was
being treated."
[I THE WARNINGS TO WALDROP
Orval F. Waldrop has been employed in the plant in-
volved in this matter for approximately 14 years, and for the
last 7 or 8 years as a loom fixer. Most of this time was spent
on the third shift. As noted above, on April 1, Waldrop was
one of the witnesses who appeared in the prior hearing on
behalf of the General Counsel. On April 6, Waldrop was
transferred to the second shift at his own request, where he
worked as one of six loom fixers under Assistant Overseer
Dennis Smith. Smith's superior was P. J. Strawn, the
overseer.
Until April 23, Waldrop states, he had received no repri-
mands in connection with the performance of his work.
Respondent does not dispute this. On April 24, Smith wrote
up a critical report on Waldrop asserting that the latter was
staying off his ob too long and too much, and recommend-
ing that disciplinary action be taken on the next offense. On
April 28, Smith again wrote a critical report on Waldrop,
asserting that, after Smith had earlier flagged a loom for
Waldrop to fix because it was making "erked in fillings,"
he had later found the same loom was making the same kind
of defect. Smith recommended discipline on the next of-
fense . Thereafter, Smith wrote another critical report on
Waldrop, dated May 15, again asserting that, after he had
earlier flagged a loom for Waldrop to fix because it was
making "jerked in fillings," he had later found the same
loom making the same defect. Smith recommended that
Waldrop be discharged if this continued. The first two re-
ports were also signed by Overseer Strawn.
A. The First Reprimand
According to Waldrop the circumstances of the first
reprimand were as follows: On April 23, Smith called Wal-
drop into the office and told him that "he would like for me
[Waldrop] to stay on the ob a little more, that I have been
off of it too much. And, I said okay, and that was all that
was said that day." No mention was made that Smith in-
tended to issue a written reprimand. The next day, however,
Smith again called Waldrop into the office to advise him
General Counsel made no attempt to prove such matters in the present
proceeding ; I have given them no weight
3 In this same conversation Keener also stated that he "could always get
up something to fire a man for"
that a written report had been prepared on the matter. On
this occasion, Smith told Waldrop that he had observed him
for an hour on the previous day, and that Waldrop had been
off the job for a total of 45 minutes, on two occasions within
the space of approximately 1 hour. Waldrop, who does not
appear to be a disputatious type (Smith agreed that he was
"cooperative" in respect to these reprimands), suggested to
Smith that he was mistaken, that it was possible for Wal-
drop to be on the job without Smith's noticing it.
Waldrop testified that, in fact, during the late afternoon
on April 23, he had taken only 18 minutes to go to the
canteen for dinner (no specific dinner period was assigned
to the loom fixers), and otherwise during the period in ques-
tion he was at one end of the weave room (which is about
7 feet wide and 200 feet long) on the floor doing certain
repair work.
During the conversation on April 24, Waldrop states that
he advised Smith that he followed a practice (which the
record shows is normal in this plant) of taking a few breaks
not exceeding 10-15 minutes during his shift; and that when
there was more work he took less time off, but that, when
"the 'ob was running good," he would take more.
Other than this instance, Waldrop testified that he had
never received "a reprimand either oral or written for being
off the job."
Smith, who gave the general impression of having little or
no independent recollection of the incidents involved (he
testified throughout with the three written reports on his lap
to which he seemed to be referring during his testimony), on
direct examination referred only to his meeting with Wal-
drop on April 24, leaving the impression that this was the
only discussion on this sub ect. On cross-examination, how-
ever, he agreed that he had talked with Waldrop about this
matter on the day previous, when he assertedly observed the
employee off the job, but stated that he doesn't recall what
was said, other than that he told Waldrop that he would talk
to the employee later. With respect to his conversation with
Waldrop on April 24, Smith, in his testimony on direct,
asserted only that "I told him that he had been off his job
too much and too long," to which he stated Waldrop replied
"that he would try not to stay off his fob more than ten or
fifteen minutes, and when it was running good, he didn't
stay on his job as much."4
On direct examination, Smith further testified that Wal-
drop never denied "that he was staying off his job too
much." However, Smith's testimony on cross-examination,
set forth in pertinent part below, clearly indicates his under-
standing that Waldrop contested the claim that he had been
absent from work for 40 or 45 minutes on the day in ques-
tion:
Q. [Mr. Batson] He told you he hadn't been off any
40 or 45 minutes didn't he?
A. I knew better though.
Q. Yes, but he told you he hadn't?
A. No; he said that I might have overlooked it or
something along that manner, overlooked him.
4 On the written report, however, it is stated that Smith told Waldrop that.
"he was staying off his job too long and too much, that he had loomsjerking
filling, shutter not boxing and clutches that need adjustion [sic], that the quality
and production from his job is unsatisfactory," to which, it is stated, Waldrop
replied as Smith testified above. In response to a specific question from
Respondent's counsel, during identification of this report, Smith agreed that
everything in the report was true . Other than that Smith gave no testimony
to support the matter underscored above . To the extent that Smith adopted
this matter as part of his testimony it is not credited . On the basis of the entire
record , including criticisms of Waldrop discussed hereinafter , I am certain
that, if there had been substance to the matter underscored , above , it would
not have been thus overlooked.
s
KENDALL COMPANY 807
* B. The Second Reprimand
Q. (By Mr. Batson) So you wouldn't listen to Mr.
Waldrop when he tried to tell you that he was not off
the gob, but was down the side on one of the looms
workingg?
A. No, sir.
Q. (By Mr. Batson) Did Mr. Waldrop not tell you
that he was in the department, in the weave shop down
at the end, on one of his looms performing some work
on it?
A. He said he could be.
Q. And you told him he couldn't be?
A. I told him I was pretty sure . When I get ready to
criticise [sic] anybody I was always positive of what I
was doing.5
Smith testified that he specifically observed that Waldropp
was absent from his job area on this occasion from 35 to 4D
minutes . He further stated, on cross-examination , that he
observed Waldrop leave the job area, and that he had spe-
cifically watched the door to see how long Waldrop was
gone , that he had noticed previously that Waldrop stayed
away longer than Smith thought he should, and that he had
talked to Waldrop about this previously.
Smith also testified that he always followed up an oral
reprimand with a written report, that he had issued quite a
few written reports on other employees, that some of these
reports had to do with employees staying off the job too
long, that he customarily recommends disciplinary action in
such reports, and that the employee's Union status has
noth ing to do with these actions. Smith testified that he had
given one such written report to Loom Fixer Benny Hooper.
Hooper, a witness for General Counsel, testified that not
lone after he had transferred to the second shift Smith orally
criticized him for being off the job for 40 minutes. Hooper
stated that he was not given a written writeup for this so far
as he knows. Smith admits that he never brought Hooper in
to see the written reprimand, as in the case with Waldrop,
but asserts that he told Hooper that he had been written
6
UP With respect to the matters discussed above, the testimo-
ny of Waldrop and Hooper is credited. From Smith's de-
meanor and my study of the record I have serious doubts
concerning the reliability of his testimony in this matter,
and do not credit his testimony set forth above, except as
supported by other credited evidence in the record.
5 Smith supervises 507 looms in his department . On some shifts, Smith
testified , he may flag only I or 2 looms for fixers , on others he may flag 10
to 12 looms . There is no credible evidence that Waldrop 's asserted absence
on this occasion caused any interference with production.
6 Respondent assertedly had issued over 150 writeups (not necessarily
critical) to employees from January 1 to the date of the hearing. On the
morning of the hearing , Plant Manager McClure selected 17 of those write-
ups, which he testified had been deliberately selected from among those given
to employees who were not favorable to the Union. An unknown percentage
of these writeups , possibly up to 50 percent according to McClure, are not
critical of the employees . It was asserted that they are representative "of the
types of reprimands that have been handed out " It was not stated that any
of these wnteups involved loom fixers. Upon objection, the Trial Examiner
ruled that these writeups might be received in evidence only if General
Counsel were given access to all of the writeups from which these few had
been selected as representative of the whole Respondent refused access to
the writeups and the proffered exhibits were rejected . See, e g , Flame Coal
Co v. UMWA, 303 F 2d 39, 45-46 (C A 6)
About 4 p.m. on April 28, Smith shut down and flagged
a loom (No. 296), for which Waldrop was responsible, for
repairs. Smith ascertained that the loom was making a de-
fect in the cloth, referred to in the record as "jerked in
fillings" or "jerk backs." Smith left a note on the loom for
Waldrop, and made certain notations on a cloth record
sheet thereafter put on Waldrop's desk, as follows: "Picker
screw not up F.S.f. Stafford not working F."
According to Waldrop, he noted the "flag" about 15 min-
utes after 4 p.m. that afternoon, found that a pin "that opens
the Stafford blade" required replacing, went to his work-
bench, "got a new one, replaced it and made a change filling
three times and it held three times, all three times." Waldrop
asserts that the normal way to check whether a loom is
working properly after a repair for this sort of defect is to
check whether the loom holds for three times. The testimo-
ny of both Loom Fixer Hooper and Smith confirms that this
is a proper practice. Waldrop noted on the back of the cloth
record sheet: "New picker screw F. S. Feeler knife stud
OF."
About 9 p.m., Smith noted that the same loom was mak-
ing jerked in fillings, and flagged it. Waldrop shortly there-
after checked the loom, found the whole stafford was loose,
and repaired the loom. Thereafter Smith told Waldrop, ac-
cording to the latter, that "it was the second time that he had
found that loom making jerked in's and to him it looked like
it hadn't ever been fixed the first time," to which Waldrop
states he replied, "I told him about that ... I found that pin
off of it the first time and I replaced it and it worked alright,
and the second time that the whole stafford stand was loose
on it." Waldrop admitted to Smith that, in tightening the
new stud on the stafford, he might have possibly loosened
the two set screws that came loose the second time, causing
the stafford to come out of alignment. Waldrop asserts that
by the fact that the loom was changing filling and holding
when he left he judged that it was in alignment at the time.
Smith told him on this occasion, Waldrop states, that he
should have checked the loom completely and made sure it
was tightened in the first instance. Waldrop stated that it
was not until May 4 that Smith called him in to advise that
he was being written up for this incident.?
Smith's version of the conversation differs only slightly
from that of Waldrop. Smith states that, after he told Wal-
drop that the loom hadn't been fixed, Waldrop told him
what the latter had done to the loom, to whch he replied that
"evidently [Waldrop] didn't fix it so far as I was concerned
because it was still making jerk backs." Smith stated that
Waldro also said he "probably could have" moved the
staffordpin tightening the stud. Smith testified that he wrote
up a report on Waldrop on this date.8
i The written report recommended that "disciplinary action be taken on
the next offense ." Waldrop remembered that it suggested dismissal.
8 In material part, this written report (dated April 28, 1970) states.
1. . . Loom No. 296 had a tickett [sic] for jerked in filling which is
seconds, I checked the loom and flagged it for the loom fixer (0. F.
Waldrop)[.][O]n my follow up, I rechecked the same loom and found
that it was still making seconds.
2 I told this employee that: I had stopped this loom off and flagged
it for jerking in filling . Later in the day on my follow up I rechecked the
same loom and found that the loom was still jerking in filling and I called
him to the loom and showed it to him, I told him that the loom had not
been fixed, that this is a direct failure to run his job.
3 This employee told me that the operating stud was out and in the
quill can, that he put it in and it worked, that he might have moved the
whole stand when he tightened up the stud.
4 1 recommend that: disciplinary action be taken on the next offense.
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Third Reprimand
On May 15, about 4 p.m., Smith flagged another of the
looms (No. 297) assigned to Waldrop for repair. Smith not-
ed that it was making jerked in fillings . In addition to the
flag on the loom, Smith also noted on the cloth record sheet
that the loom was "making jerk backs." Waldrop, upon
checking the flag, found that `the box front was causing it
to break the fillings. The Stafford was holding, it was break-
ing between the temple knife and the stafford." Waldrop
replaced the temple cutter and the box front and so noted
on the back of the cloth record sheet. Before leaving the
loom, Waldrop made it change fillings three times and de-
termined that it was not making jerked in fillings. He did not
otherwise check the stafford.
About 4 hours later, Smith called Waldrop to the same
loom and showed him that the loom was "makmg jerked in's
again ." Waldrop found that this was caused by a broken
"check strap." He asserts that he suggested Smith could
check the cloth to see how long it had been making jerk
backs (indicating Smith's position that Waldrop had not
repaired the loom on the first occasion), to which Smith
replied that there was no reason to recheck. Waldrop made
the necessary repairs and adjustments.
Thereafter, on May 19 or 20, Waldrop asserts, Smith
called him into the office and read Waldrop a writeup with
respect to the incidents of May 159 Smith told Waldrop
that, with respect to both prior incidents, that "it looked to
him like neither loom had been fixed neither time." Wal-
drop states that he replied "that both looms had been fixed
the first time and the second time," that the two men went
over, in part, their previous discussions concerning these
incidents, and that Waldrop offered to show Smith in the
manufacturer's manual what had caused the trouble the
second time on loom 297, when Smith stated that he "didn't
know what caused the trouble."
According to Smith, he did not recall what Waldrop said
when the latter was shown the loom making jerked backs
about 9 p.m. that evening. However, Smith agreed that
thereafter in the office Waldrop explained "that he had
replaced the box front and set the temple cutter, the first
time he fixed it, and that he made it change three times and
it seemed to be working right." Smith also stated that on this
occasion Waldrop told him "that he checked the stafford
going through, and that when he tightened it up and set it,
it could have [tilted] and it could have hit the box front."
Smith's testimony with respect to these matters was mani-
festly something less than completely frank and open or
consistent . Thus, when Smith was asked (to emphasize that
Waldrop's repairs of the box front and temple cutter were
not proper to correct the loom from making jerk backs) on
direct examination, "what device keeps the machine from
jerking back fillings?" he answered only "the stafford," and
immediately asserted that the box front and temple cutter
have no bearing on the stafford. However, on cross-exam-
ination, Smith agreed that other things besides the stafford
could cause jerked back fillings, and that the box front as
well as the temple cutter is among the parts of the loom that
can cause this condition. He further agreed that even a
well-maintained loom may develop a broken stafford pin or
a broken jerk strap 10 whicIrcannot be predicted in advance.
Indeed, it would appear from Smith's testimony that, in
each of these instances, it was his position that Waldrop had
not "fixed" the machine when it was first flagged, notwith-
standing Waldrop's explanations, only because if it had
been fixed the first time the machine would not thereafter
have again made the same defect on the same shift.ll In
essence it seems to be Smith's position that, if the machine
is properly repaired or maintained, it will not require repair
twice in a single shift. The record as a whole raises a sub-
stantial doubt as to the validity of this position. The follow-
ing pertinent extracts from Smith's testimony are indicative:
Q. [Mr. Batson] Now in your experience as a fixer
Mr. Smith,12 are you telling the Court that you never
had occasion to fix a loom and having something else
go wrong with it on the same day, the same shift?
A. Hardly ever; I might have had.
Q. You might have had on one occasion?
A. No, sir.
Q. You have never in your experience as a fixer ever
had to repair looms with jerked in fillings twice on the
same shift?
A. Well, it could be something else that was causing
it.
Q. But it would be causing jerked in fillings, right?
A. Yes.
Q. Now after replacing the Stafford pin, that would
have corrected the problem that was causing the jerked
in fillings on that occasion?
A. It might have.
Q. And it is also possible that you could replace the
stafford pin, and four hours later something else could
go wrong with the stafford, is that not right?
A. Yes, sir, but if you-
In material part the written report (dated 5/15/70) states
1 . Loom No 297 had a second tickett [sic] for jerking in filling
The loom was flagged for fixer and on my follow up, I found the loom
still jerking in filling and not fixed
2. 1 told this employee that . this was the second time that I had flagged
a loom for his defect and on both occasions I had to recall him to the
loom because of his failure to fix them. I told him that this loom was
making second and he was not running his job if I had to go get him
every time I flagged a loom.
3 This employee told me that he checked the stafford going in box
front , but said that might not have been what was wrong with it But he
checked it three times and it worked He said that the stafford could be
tilting box front.
4 1 recommend that This employee be discharged if the above con-
tinues to happen.
9
10 This is apparently the same strap which Waldrop found broken on loom
No 297 on the second occasion the loom was making jerk backs Smith
admittedly did not know what part related to the stafford was at fault on this
occasion, as he told Waldrop at the time.
11 For example , Smith asserts that he told Waldrop that "he didn't fix it
as far as I was concerned because it was still makmg second quality cloth and
still jerking back, the same as it was previously flagged for ." There is no
evidence that Smith , in either instance, made any effort to determine whether
the loom actually continued making defective cloth for the whole period, or
whether Waldrop had corrected the defect on the first occasion and the
defect had thereafter recurred Waldrop 's testimony and the record as a
whole indicate that Smith made no such check
12 Smith had worked as a fixer for another employer for approximately a
year He had never worked as a fixer for Respondent or on the type of looms
used by Respondent , though the function of the looms was about the same.
He had been assistant overseer for Respondent since August 11, 1969
KENDALL COMPANY
Q. What makes you think that was not the case on
April the 28th or 29th when Mr. Waldrop replaced the
Stafford pin, that four or five hours later something else
went wrong with the Stafford and it started makingjerk
ins again,.?
A. Well, on these if it had been properly checked and
set, this would not have occurred.
Q. Are you saying that if a machine or a loom is
properly repaired on one occasion nothing else can go
wrong with it in four or five hours?
A. I didn't say that.
Q. You are just saying that it is not possible that he
could have probably repaired the loom and four or five
hours later there could be something wrong with it, and
it could be jerking the filling in again?
A. Yes, sir; not on these occasions.
Q. Why could these occasions be any different?
A. Because they are different; because if he had
properly set this to start with, he would not have had
this other. If he had checked it properly all the way
through he would not have had this loom making jerk
backs again.
Q. Four or five hours later it could not have been
making them again?
A. No, sir.
Notwithstanding this position, as has been previously
noted, Smith also testified that, even in a properly main-
tained loom, it was possible to have a broken jerk strap or
a Stafford pin broken (either of which apparently can cause
jerked in fillings), and that there is no way that anyone can
predict when these things may ha .pen.
Both Waldrop and Hooper testified to the fact that they
had had previous experiences with looms which required
repair twice on the same shift.
III ANALYSIS AND CONCLUSIONS
There is no question but that Waldrop was an active
adherent of the Union. His appearance at the hearing in the
prior proceeding as a witness would particularly mark him
as a staunch supporter of the organization . It is likewise
clear that Respondent, whatever its position at other plants,
was firmly opposed to the unionization of the Albertville
plant . This was made manifest by the activities of Respon-
dent found by the Board in the prior proceeding, in which
Overseer Strawn and another of-his assistants took promi-
nent part.
Waldrop's 14 years of employment at the Albertville
plant, and 7 or 8 years as a loom fixer, without complaint
or reprimand until shortly after he testified at the prior
hearing before the Board, indicate that he had attained a
considerable proficiency and had performed satisfactorily.
Indeed , his experience as a loom fixer appears greater than
that of Smith on this record.
Further, Smith's asserted reasons for the writeups are far
from convincing. As to the first of these, concerning
Waldrop's alleged absence from the work floor, this was the
first occasion on which Waldrop had ever been advised that
he had been too long absent from the floor. Under the
rather loose rules prevailing, loom fixers were clear ly free to
take short breaks when their work was caught up. Contrary
to the implication in Smith 's written report, there is no
credible evidence that Waldrop's alleged absence from
work on this occasion affected the work on the floor at all.
809
It is further clear that Waldrop was not only cooperative in
receiving Smith 's oral reprimand on this occasion , but, con-
trary to Smith 's denial , advised the latter that he had been
at work during the time in question on the floor in a position
where Smith could have overlooked him. In the only other
specific instance in which Smith is shown to have similarly
censured an employee , Loom Fixer Hooper , only an oral
reprimand , not a written warning, was given.
Very shortly thereafter, Smith wrote Waldrop up again,
this time assertedly because one loom on which Waldrop
was the fixer was found making defective cloth twice in the
same shift . It is Smith's position that, if Waldrop had re-
paired the loom in the first instance, it would not have
produced defective cloth again some hours later . However,
the record as a whole and Smith's testimony on cross-exam-
ination are convincing that this is not a valid position and
Smith is aware of this . His attempts to explain why the
situation involving Waldrop on this and the next succeeding
occasion, which involved a similar incident , was, in his
words , "different ," were not persuasive . Waldrop, on the
other hand, seems to have made normal repairs and on each
occasion assured himself that the loom was in working order
when he left it. Though he advised Smith of this and re-
quested a check of the cloth to confirm this, Smith refused.
This is not to say that Respondent may not discipline an
employee solely because a machine for which he is respon-
sible performs defectively twice in a single shift , or, indeed,
may not pick any other kind of standard of performance it
desies, if not connected with rights protected by the Act or
other laws . But in this case , the record as a whole , partic-
ularly the timing of these incidents , Waldrop's long and
previously unquestioned performance , the manner in which
these matters were handled and my doubts as to the credi-
bility of Smith , the alacrity in which a record has been set
up justifying Waldrop 's discharge , together with evidence
that Respondent has a conscious desire not to be unionized
at Albertville and to be nd of Union adherents as the oppor-
tunity occurs, convinces me that Respondent has seized
upon these incidents as pretexts to prepare the way for
Waldrop 's termination because of his Union activities and
his participation as a witness in the prior proceeding. It is
therefore found that Respondent has engaged in and is
engaging in unfair labor practices in violation of Section
8(a)(I), (3), and (4) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By issuing warning notices to Orval F. Waldrop, affect-
ing his hire, tenure, or terms or conditions of employment,
because he engaged in activities on behalf of the Union and
participated as a witness in a proceeding before the Board,
Respondent discriminated against an employee in violation
of Section 8(a)(3) and (4) of the Act, and interfered with,
restrained, and coerced its employees in violation of Section
8(a)(1) of the Act.
4. By the acts and conduct set forth above, Respondent
has engaged in and is engaging in unfair labor practices
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
It having been found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1), (3), and
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(4) of the Act, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act, as set
forth hereinbelow.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 13
Respondent Kendall Company, its officers, agents, suc-
cessors , and assigns , shall:
1. Cease and desist from:
(a) Issuing warning notices to employees affecting the
hire, tenure, or terms or conditions of employment of em-
ployees in order to discourage membership in or activities
in support of Textile Workers Union of America, AFL-
CIO, CLC, or any other labor organization, or because such
employees have given evidence in a proceeding before the
National Labor Relations Board.
(b) In any other like or related manner interfering with,
restraining, and coercing employees in the exercise of rights
under Section 7 of the Act.
2. Take the following affirmative action which it is found
will effectuate the purposes of the Act:
(a) Rescind and delete from the personnel files of employ-
ee Orval F. Waldrop the warning notices heretofore given
him, and give them no effect.
(b) Post at its Albertville, Alabama, plant copies of the
attached notice marked "Appendix."14 Copies of said no-
tice, on forms provided by the Regional Director for Region
10, after being duly signed by Respondent's authorized rep-
resentative, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to msure that said no-
tices are not altered, defaced, or covered by any other mate-
rial.
13 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , recommendations , and recommended Order herein shall, as
provided in Section 102.48 of the Rules and Regulations, be adopted by the
Board and become its findings , conclusions , and order , and all objections
thereto shall be deemed waived for all purposes.
14 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board."
(c) Notify the Regional Director for Region 10, in writing,
within 20 days from the receipt of this Decision , what steps
have been taken to comply herewith.l5
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT issue warnings to our employees affect-
ing their employment because of employee member-
ship in or activities on behalf of Textile Workers Union
of America, AFL-CIO, CLC, or any other labor orga-
nization , or because our employees give evidence in a
proceeding before the National Labor Relations
Board.
WE WILL NOT in any other like or related manner inter-
fere with, restrain, or coerce our employees in the exer-
cise of rights under Section 7 of the Act.
WE WILL rescind and delete from the files of Orval F.
Waldrop the warning notices previously given him, and
will give them no effect.
KENDALL COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, Peach-
tree Building, Room 701, 730 Peachtree Street, NE., Atlan-
ta, Georgia 30308, Telephone 404-526-5760.
15 In the event that this Recommended Order is adopted by the Board, this
provision shall be modified to read . "Notify the Regional Director for Re-
gion 10, in wntmg, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith."