Maremont Corp.

National Labor Relations Board - Board Decisions

Feb 28, 1968

169 N.L.R.B. 1090 (N.L.R.B. 1968)

1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Saco-Lowell Shops, a Division of Maremont Corpora-
tion and International Union , United Automobile,
Aerospace and Agricultural Implement Workers
of America , UAW, AFL-CIO. Case I 1-CA-3219
February 28, 1968
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND ZAGORIA
On November 13, 1967, Trial Examiner Eugene
E. Dixon issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged 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.
The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor prac-
tices alleged in the complaint and recommended
dismissal as to them. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision
and a supporting brief, and the Charging Party filed
a brief in support of the Trial Examiner's Decision.
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
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
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,
Saco-Lowell Shops, a Division of Maremont Cor-
poration, its officers, agents, successors, and as-
signs, shall take the action set forth in the Trial Ex-
aminer's Recommended Order, as modified herein.
Add the following immediately below the
signature line at the bottom of the Appendix at-
tached to the Trial Examiner's Decision:
Note: We will notify the above-named employee
if presently serving in the Armed Forces of the
United States of his right to full reinstatement upon
application in accordance with the Selective Ser-
vice Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
' In addition to the reasons stated by the Trial Examiner for finding that
the no-solicitation rule in the employees' handbook violated Section
8(a)(1), we note that the rule was neither rescinded nor expressly amended
by'the subsequent posting of the second no-solicitation rule Moreover,
Respondent, by warning Porter that he violated the posted rule when in
fact he had solicited a union card from employee Camp while both were in
the washroom, demonstrates that the no-solicitation rule as enforced ap-
plied to nonworktime Member Zagona does not, however, rely on the
Trial Examiner's alternative basis for finding the rule unlawful
Additionally, we agree with the Trial Examiner's finding that the
Respondent discharged W C. Porter for discriminatory reasons in viola-
tion of Section 8(a)(3) rather than, as contended by the Respondent, for
violating the no-solicitation rule that was posted in its plant. The alleged
solicitation that resulted in Porter's termination was a harmless and am-
biguous remark between individuals who frequently conversed at their
work stations Respondent's concern, it would appear, was based on
Porter's possible allusion to the Union rather than on his interference with
production
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE E DIXON, Trial Examiner: This proceeding,
brought under Section 10(b) of the National Labor Rela-
tions Act, as amended (61 Stat. 136), herein called the
Act, was heard at Greenville, South Carolina, on May 31
and June 1, 1967. The complaint, dated March 31, 1967,
and based on charges filed and served on January 16 and
March 31, 1967, was issued by the Regional Director for
Region 11 (Winston-Salem, North Carolina), on behalf of
the General Counsel of the National Labor Relations
Board (herein the General Counsel and the Board). It al-
leged that Respondent had engaged in and was engaging
in unfair labor practices by maintaining and enforcing an
invalid no-solicitation rule and by warning, reprimanding,
and discharging W. C. Porter and Thomas C. Fennell
because of their union activities thus violating Section
8(a)(1) and (3) of the Act.
In its duly filed answer Respondent denied the commis-
sion of any unfair labor practices.
After the close of the hearing, the General Counsel
submitted certain corrections to the transcript which
were agreed to by the other parties. Accordingly, I make
the corrections as requested and incorporate them herein
by reference. The General Counsel did not file a brief, but
excellent briefs were received from both the Charging
Party and the Respondent.
Upon the entire record and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
At all times material Respondent has been an Illinois
corporation with a plant located at Easley, South
Carolina, where it is engaged in the manufacture of textile
machinery. During the 12-month period preceding the is-
suance of the complaint, which is a representative period,
Respondent received at its Greenville, South Carolina,
plant, directly from points outside the State of South
Carolina, raw materials valued in excess of $50,000, and
manufactured, sold, and shipped from its Easley, South
Carolina, plant, to points directly outside the State of
South Carolina, finished products valued in excess of
$50,000. Respondent at all times material herein has been
169 NLRB No. 151
SACO-LOWELL SHOPS 1091
an employer engaged in commerce within the meaning of
Section 2 (6) of the Act.
II. THE LABOR ORGANIZATION
International Union, United Automobile , Aerospace
and Agricultural Implement Workers of America, UAW,
AFL-CIO, at all times material herein has been a labor
organization within the meaning of Section 2 (5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
The Union's organizing campaign at Respondent's
plant began sometime in September 1966.1 It was ap-
parently instigated by W. C. Porter (an alleged 8(a)(3)
dischargee herein), who had called the Union seeking
"some action ... at Saco-Lowell." About September 6
or 7 Porter got a call from a union representative who
wanted to see Porter at his home. The two met there the
following evening where they "got a committee formed,
and started ... getting union cards signed." Also in-
volved in the organizing campaign was employee Thomas
Fennell (another alleged 8(a)(3) dischargee), who began
attending union meetings about the middle of September.
Fennell became a member of the organizing committee
(as of course did Porter), and became active in soliciting
authorization cards, doing so away from the plant and at
the plant during lunch, and before and after work. Ac-
cording to Fennell's estimate, he got about "100 cards
signed." Fennell also testified that he had voiced his
union sympathies to Foreman Clardy, both when Clardy
was a rank-and-file employeez and after Clardy became
a supervisor. The most recent such conversation, accord-
ing to Fennell, had taken place about a month before Fen-
nell's discharge (which occurred on October 5), when he
had told Clardy that they "needed a union and [Clardy]
just laughed it off and let it go at that."3
Fennell's Discharge
Fennell had worked continuously from November
1957 to October 5, 1966, avoiding a general layoff in
1958. He had been a lathe operator for 7 years and was
receiving $1.85 an hour at the time of his discharge,
which he was told was top pay for his machine.4
According to Fennell's testimony, he ran new designs and
repair orders on his lathe, among other things. According
to him, his efficiency was above average but on occasion
it dropped and Clardy would tell him "to get it up."5
Sometime in 1966, prior to the time he told Clardy they
needed a union, Fennell had been offered a job in the tool-
room on the second shift at $2.40 an hour, but he had re-
jected it.
About 2 years before his discharge, Fennell had gotten
a warning slip involving a traffic violation presumably on
the company parking lot. Early in 1966, he and another
employee, James McCall, had received a warning about
staying in the "water house" too long.6 On this occasion
he and McCall had taken a break to go to the water house
about 8:30 as was their practice. While they were there
Clardy came in and, according to Fennell's testimony,
asked them about some parts. During this discussion
Assistant Superintendent Rich came in. He did not
inquire what they were talking about but told Clardy
"that if he caught Fennell or McCall in there again, he
was going to fire them, that [they] stayed in there too
much." According to Fennell, at this point they had been
in the water house about 5 minutes.7
According to Fennell's testimony, on October 5, he
was running a certain job when Supervisor John Rice told
him that a replacement order would be coming to him as
soon as they could get it to him and that he was "to tear
down" the job he was on and start immediately on the
replacement order. He got the rush order8 about 9 o'clock
and started on it using an expedited procedure that he was
directed to use. However, because the suggested method
did not work out successfully, he was compelled to revert
to a slower method of operation. Some time after he had
started the replacement order, according to Fennell's
further testimony, Rice came by and told him to hurry up.
But, as Fennell further observed, Rice was always telling
him to hurry up.
According to Assistant Shop Superintendent Rich's
testimony, supported by the Company's records, Fennell
got the replacement job on October 4, rather than Oc-
tober 5. He had produced 75 pieces on October 4, and
was still working on the job on October 5. What hap-
pened on October 5 is described in Rich's essentially un-
denied and credited testimony as follows:
Q. Tell us what you personally observed Mr.
Fennell doing on October 5, and relate these reports
to it, if you can.
A. On his listing sheet or on his time sheet, it
shows that from 7:00 o'clock until 8:18, or about 7 or
8 minutes after eight o'clock, he was on handling
again. The next entry is a written in entry which
shows the rest of his day. This happened to be the
day that he was terminated. At approximately 10:45
of that day, checking through department 510, and
the seriousness of the job that was on the machine,
that we had to get into operation to satisfy Sadie Cot-
All dates are in 1966 unless otherwise noted
This would have been some 8 years in the past since it was stipulated
that Clardy had been a supervisor since 1958
3 In his testimony Clardy denied that Fennell had ever revealed his
union sympathies to him or that he was aware of such sympathies or
aware of any activity by Fennell on behalf of the Union prior to his
discharge Clardy further testified, however, that he had conversations
with Fennell and other employees from time to time and admitted stating
to employees his own views on unions as well as the Company's "policy
on unions." He named some of the employees he had so spoken to and ad-
mitted there might have been some others he could not recall, but was cer-
tain that Fennell was not one of them I credit Fennell here at least to the
extent that he and Clardy had talked about unions and that Fennell had in-
dicated his opinion that a union was needed in the plant.
4 There was one other machine like his in the department whose opera-
tor had been employed on it for about a year.
5 The only denial of this testimony was by Assistant Superintendent
Rich who testified that Fennell "was an average employee" and "more or
less a mediocre employee " I am inclined to believe that Fennell was
better than average and so find
8 "Water houses," situated at various locations in the plant, contained
employees' lockers and provided toilet and lavatory facilities
9 Rich testified that for possibly a year or so it had been the practice of
McCall and Fennell "to go in the water house and stand in the corner
against the cabinet," and had done this numerous times in his presence
On this occasion, according to Rich, they "didn't have the courtesy to
leave" when he came in but "stood there and almost defied" him This
was not the first time this had occurred and that was why Rich "blew [his]
stack "
8 On cross-examination Fennell was asked if he had not been told that
the replacement job was a rush job and answered, "To my knowledge,
no." He later admitted that he knew "indirectly" that it was a rush order
350-212 0-70-70
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ton Mills, I looked over at Mr. Fennell's machine
and it was not in operation, and Mr. Fennell was not
in sight. I went over to John Rice, the unit foreman
and asked him where Mr. Fennell was. And he said,
"Why, he is over operating his machine."
And I said, "Well, I don't see him."
He said, "Well, he is supposed be."
So we started to look around and I spotted him
over by the tool crib talking to a tow motor driver. At
that moment I was called to the telephone in the ad-
jacent department, 506. While I was on the
telephone, Mr. Fennell went by and went into his
working area. From where I was standing, I could
observe his work area. He did not go to his machine.
He went over to where a serviceman from the Reed
Thread Roller Company, Mr. Leonard Cariglia, and
by the way, he has deceased since that time, was
working on a new attachment for our flute roller. Mr.
Fennell stood and talked with him, and at that mo-
ment or after I had finished my conversation on the
telephone, my general foreman, Mr. John Childress,
came up to me, and we were discussing the problem
of 515, the automatic section.
During this conversation, Mr. Gillespie, who was
shop superintendent came by and stopped and
discussed general problems of the shop. All this took
place in the general area of Mr. Fennell's machine, or
where I could observe Mr. Fennell.
While I was talking with Mr. Gillespie, Mr. Fen-
nell came out of his work area and went to the water
house. He went in and in a few moments I saw him
come out the other side, and stood there as though
looking at -well, apparently money in his hand, and
looking at the menu in the cafeteria. In a little while
or a few moments, he came back and walked by
where Mr. Gillespie and I were standing, and went
into his work area. Again, he did not go to his
machine or attempt to start his machine in any way.
He went over and started talking again to Leonard
Cariglia. Mr. Gillespie left. Mr. Clardy and John
Rice came over to me, and we started discussing the
problem that we were having with the #5 grinder on
the dressing attachment, and I told Mr. Clardy then
that I had been observing Mr. Fennell's actions for
quite a while, and reminded him of a previous warn-
ing that I had given, and told him that if at lunch time
he had not [gone] back to his work, I wanted him
taken to the Personnel Department and terminated.
About 11:30, I called the Personnel Office and
contacted Mr. Bearden and told him that I possibly
might have Mr. Fennell in there at the end of or at the
beginning of Mr. Fennell's lunch period, if he hadn't
gone back to work.
The buzzer blew for the lunch period and still Mr.
Fennell had not attempted to perform any work, so
I told Mr. Clardy, the foreman, to take him into the
Personnel Office, and I would be in.
He took him into the Personnel Office. I went in,
and there was Mr. Bearden, Mr. Brady, Mr. Fennell
and Mr. Clardy, in Mr. Bearden's office. I reminded
Mr. Fennell at that time if he didn't remember the
previous warnings I had given him about [loitering]
or loafing around and he said he sure did. And I said,
"Well, you have loafed too long. I can't put up with
it any longer.
And I instructed Mr. Bearden and Mr. Clardy to
terminate him right there.
According to Fennell's version, Rich said, "You're not
afraid of anyone, are you, and as far as I'm concerned,
you're fired.... I stood over there and watched you for
thirty or forty minutes not doing anything." Fennell ad-
mitted to Rich the truth of his accusation. Rich then said
"As far as I'm concerned, I don't want you back ... in
the shop" and left. Thereupon the termination papers
were prepared and Fennell became unemployed. Accord-
ing to Rich's testimony, at the time he discharged Fen-
nell, he was not aware of Fennell's union activities or
sympathies.
Conclusions as to Fennell's Discharge
No brief was received from the General Counsel but as
indicated an excellent one was filed by the Charging Par-
ty. In it counsel maintains that while "it would appear, at
first blush, that Fennell was discharged for good cause .
.. an analysis of the facts surrounding his discharge com-
pels a different conclusion." I disagree. At most the
General Counsel has succeeded in raising a suspicion that
the discharge may have been motivated by Fennell's
union activity, but I believe that there is not a sufficient
preponderance of the evidence to support such a finding.
True, as the Charging Party points out, there are some
factors which tend to support such a result. Thus, he ar-
gues that in the light of "Fennell's extraordinary success
as an in-plant union organizer" when Rich "stood by for
thirty to forty minutes watching Fennell loaf when he
should have been doing a rush job ... Rich was intent
upon giving Fennell enough rope to hang himself"; in
short, seeking to establish a pretext to discharge Fennell
under the guise of cause to cloak Rich's alleged antiunion
motive; that "it is unthinkable that Rich would have stood
by, as he said he did, and permitted Fennell to loaf at a
time when he had been assigned to an important rush
job." Furthermore, he argues, "if Fennell's dereliction
had been as gross as Rich would have the Trial Examiner
believe, Chapman, the fellow employee with whom Fen-
nell was loafing, would at least have been reprimanded,"
but no such reprimand is shown in the record.
Had it not been for Fennell's previous preunion warn-
ing of discharge for loafing, there might be more sub-
stance to the Charging Party's contentions. However, in
the light of this warning and the attitude developed by
Rich regarding Fennell, it can hardly be said it was
unthinkable for Rich to have acted as he did. Indeed, in
view of this background it might be argued that, it would
be unthinkable for Rich to have acted in any other
manner. Here is a man who has been warned about malin-
gering and who has further ingratiated himself by im-
pressing his superior as being arrogant about it. Apart
from the purely human aspect of Rich's reaction here it
could be said that under these circumstances, as a super-
visor, it was his duty, when the opportunity presented, to
see just how far Fennell was willing to go in his malinger-
ing and disregard of orders.
That no reprimand was made to Chapman is un-
derstandable since it was Chapman's machine that was
being worked on. Even if Rich did not know what the
conversation between Chapman and the factory
representative was about, it is obvious that Chapman was
not in the same position that Fennell was.
Accordingly, I find that'Fennell was discharged for
cause and that his discharge was not discriminatory
within the meaning of Section 8(a)(3) of the Act.
SACO-LOWELL SHOPS
Moreover, I make this finding whether or not Rich was
aware of Fennell's union activity at the time of the
discharge. In this connection, while it would seem almost
impossible not to be aware of Fennell's union activities,
if indeed he had solicited the number of cards in the short
span that he claims he did,9 it might nevertheless be that
Rich had not yet learned of it. There is nothing in the
record to counter Rich's testimony that the first he knew
about the union campaign was when he was told about it
late in September, by Porter (as will be shown). Although
I have found that about a month before his discharge,
Fennell told Clardy that he felt that they ought to have a
union, this, according to Fennell's own testimony, was in
a casual conversation which Clardy simply laughed off.
And at that time, of course, there was no union in the pic-
ture. It is conceivable that Clardy did not mention this
conversation to Rich. Other than this, there is nothing in
the record to show knowledge on the part of Rich.
The No-Solicitation Rule
Apart from the lunch period, no scheduled breaktimes
are provided for by Respondent. It permits employees to
go to the water houses as their needs or desires dictate.
They are also permitted at their discretion to leave their
work (shutting off machines if necessary), to go to and
patronize the coin-operated refreshment machines which
are located just outside the water houses. While doing
these things there is no prohibition against employees en-
gaging in conversations. The only limitations on the time
involved in the foregoing activities is that of reasonable-
ness.
The complaint alleges that Respondent interfered with,
restrained, and coerced its employees in the exercise of
rights guaranteed in Section 7 of the Act by promulgat-
ing, publishing, distributing, maintaining, and enforcing a
rule which prohibited anyone under the penalty of
discharge from
Soliciting employees to sign authorization cards and
or membership cards in any organization during
working hours.
This rule was embodied in an employee handbook
promulgated in 1965, entitled "You and Saco-Lowell"
which was "systematically distributed to employees" and
was "current" at all times material.
In March 1966, Respondent posted in the hall of the
employees' main entrance another rule, among others,
which read as follows:
Solicitation by employees on company property dur-
ing working time which in any way interferes with
production is prohibited.
At the hearing the General Counsel stated that "It is
our position that this (the foregoing posted rule), is a valid
no-solicitation rule under appropriate Board cases and
rules." But he further maintained that the rule appearing
in the handbook was illegal as alleged in the complaint.
A rule similar to the one at issue in the handbook was
held to be invalid in Campbell Soup Company, 159
NLRB 704. The rule there prohibited
Unauthorized solicitation for contributions, member-
ships or sales during company working hours.
Affirming the Board's decision in that case, the United
States Court of Appeals for the Fifth Circuit said (380
F.2d 372):
1093
This rule is vague and indefinite. It may reasonably
be interpreted to mean that there may be no solicita-
tion whatever during company workinghours. An
employee, ... has the right to solicit his fellow em-
ployees during their non-working time even though
the solicitation is during company working hours.
The rule here is equally vague and indefinite and subject
to the same deficiency as the rule in Campbell Soup.
Here it may reasonably be interpreted to prohibit solicita-
tion at any time during working hours even though the
solicitation is made during periods when the employees
are engaging in a refreshment or toilet break. I deem it
unimportant that the breaks in question are not provided
for at set times or within specific limitations. The fact is
that they are sanctioned by Respondent and clearly pro-
vide free time to the employees which must be considered
nonworking time even though paid for. Olin Industries,
Inc. v. N.L.R.B., 191 F.2d 613, 617 (C.A. 5); Mid-West
Metallic Products, Inc., 121 NLRB 1317, 1351. Ac-
cordingly, I find that the rule in question is invalid and
violates Section 8(a)(1) of the Act.
In addition to this fundamental fault with the rule, there
is substantial evidence to show that in any event, even if
it could be said to be valid on its face, the rule has been
stripped of any meaningful obligation or effect. Thus, the
evidence shows, as the Charging Party points out, that
"There has been a considerable amount of solicitation for
charitable contributions, gambling pools and private en-
terprises" such as lotteries and the sale of merchandise.
According to the General Counsel's witnesses, not only
have these things been condoned by supervision but in
fact have been participated in by Respondent's super-
visors.
While the supervisors, who were claimed to have been
involved in some of this type of solicitation, for the most
part denied it or defended their actions as being outside of
working hours or otherwise blameless, the fact is that
there was so much of it described in the record as to
require the conclusion that whatever official position
management took regarding the no-solicitation rule, it
was, as so often happens, more honored in its breech than
in its enforcement.
W. C. Porter
Porter had been a lathe operator with Respondent since
1960, except for one intervening 6-months' layoff. He
had about 23 years of shop experience and was getting
$1.92 an hour, which was top pay for his classification.
He had received a classification of his job in late Sep-
tember, which increased his rate. About a year and a half
after he started on his machine, the man he replaced
wanted to return. Porter's foreman was asked if he would
take the man back. The foreman declined on the grounds
that "Porter was doing too good a job" and that he
"wanted to keep him on that job."
The part that Porter played in getting the Union's or-
ganizing campaign started has been shown. According to
him, he got 30 to 35 authorization cards signed-all on
nonworking time. He further testified that he talked about
the Union at other times (i.e., during working time
presumably), but never solicited cards during such time.
He also testified about a conversation he had had at his
machine with Rich in late September as follows:
9 1 am not convinced that Fennell's estimate here was entirely accurate.
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
... Mr. Rich come by looking for the number on
some shafts and I asked him could I talk to him a few
minutes and he said, "Yes." And I told him that I
had been contacted by the union and that they
wanted to organize Saco-Lowell plant, and I told him
that they wanted me to take the leading part of it and
I refused them. I also told him that I hoped I would
not get fired by telling him that I was connected with
the union.
*
. Mr. Rich said that he didn't think anyone
would get fired for that.
The October 19 Warning to Porter
On October 19, Porter was called into the office and
given a written warning for soliciting a fellow employee
in another department to sign a union authorization
card.10 At no time prior to being given the warning slip
had any attempt been made by management to ask Porter
about the matter whatsoever. According to Porter's
testimony, when he was given the warning slip, he spoke
to them as follows:
Well, I told them that if I had to go back out there
and work under a lot of pressure, that I might as well
be fired then, or leave, that I would not be any good
to myself or the company, either one, if I went out
there and had someone looking over my shoulder all
the time.
* * * * *
I said that if they were going to have shop
rules, that I would like to see them, and Mr. Brady
said they were posted out there in the hallway, that
I could stop and look at them if I would like to.
*
I told Mr. Rich and all that were in there, not
directly Mr. Rich, but I said, well, I said, "As far as
anything interfering with my efficiency, my efficien-
cy is right up there in the top three or four," and I
said, "Mr. Boutet, is that right or not?"
And he said, "Yes, that's right."
According to Porter, a couple of weeks after he
received the warning, he and Boutet got into a conversa-
tion during worktime concerning the Union, about which
Porter testified credibly and without denial as follows:
. well, we got to talking and I don't remember
which one mentioned the union, but I said, I kind of
laughed, I said, "Well, I had better not talk to you
about the union." I said, "You know I am on thin ice,
I have done got a warning about it."
And he said, "Oh, the company wants us to talk to
you employees about the union."
And I said, "Well, now, that's all good and well,
Mugsey," or Mr. Boutet-his nickname was Mugsey
and everyone called him Mugsey-I said, "That's all
good and well, if you will tell both sides of the
union."
io The warning read in part as follows
On October 17, 1966, Mr. Porter contacted a fellow employee who
works in another department and solicited his signature on a union
card dunng working time of both employees This was a direct viola-
tion of the Company's no solicitation rule as posted throughout the
plant No solicitation rule (Paragraph 2) reads as follows "Solicita-
tion by employees on company property dunng working time which
Well, he told me there that day that if the union got
in there that the dues would be $250 to $300 a year.
I said, "Well, now, Mugsey, you may tell some of
these boys that don't know any better, but I know
better. I have belonged to this same union-for about
18-1/2 years." I said, "Our dues was $5 a month.
They have not gone up that much and I know it." I
said, "I know what they will be now if we had a
union."
According to Porter they talked at this time "for a good
15 minutes."
Regarding the incident about which Porter got the Oc-
tober 19 warning slip, Cecil Camp, the employee in-
volved, testified on direct at the call of Respondent as fol-
lows: He was washing his hands in the water house one
afternoon about 2 o'clock in mid-October, when Porter
entered. No one else was present. Porter asked him if he
"would like to sign a union card." He told Porter he
"didn't care anything about it," but Porter asked him "to
take a card anyway." Accordingly, Camp followed Porter
into one of the toilet stalls where the latter got a card out
of his billfold and gave it to Camp. Camp then went to the
urinal and Porter left the water house. The following day
"they" (supervision) asked him if Porter had talked to
him about the Union and Camp said that Porter had.
In his testimony Porter, while admitting having asked
Camp in the water house if he would sign, a card, denied
going into the toilet stall with Camp and denied that he
gave Camp a card on that day, maintaining that he gave
Camp a card before work the following day. According to
Porter's version, he asked Camp whether he had made up
his mind to sign a union card and when Camp said he had,
Porter said, "Well, see me in the morning and I will give
you a card."
When asked on cross-examination whether he drew "a
distinction between talking to people about the union and
actually handing them a card" Porter said that he did ex-
plaining, "I can talk to him the way I see it, and I would
not be soliciting his signature on a union card. Normally,
we talked about other things besides the union over the
period of years I was there."
In this connection the evidence shows that there was
no specific prohibition against employees engaging in
conversation with each other at their work while their
machines were running or otherwise. Several examples of
such conversations were given, some involving super-
visors. The only real objection apparently involved men
congregating in groups or engaging in protracted conver-
sations. Clearly a few comments back and forth' were
customary - about unions or anything else as was brought
out by Porter's undenied and credited testimony regard-
ing Boutet's remark about the Company wanting the su-
pervisors to talk to the men about the Union.
While there were several discrepancies and incon-
sistencies in Camp's direct and cross-examination and
also in connection with a statement he had given about
this matter, there is no real need as will be seen to resolve
any conflicts here between the testimony of Camp and
Porter.
in any way interferes with production is prohibited "
It is further understood that this written warning is Mr. Porter's
FINAL WARNING. The next violation of any plant rule will result
in discharge of Mr Porter.
This memo was read by Mr. Porter and discussed with him by Mr. Bou-
tet, his foreman, Mr Rich, assistant superintendent, and Mr. Bearden,
employee relations manager, in the employee relations office.
SACO-LOWELL SHOPS
The November 28 Discharge of Porter
On November 23, Porter began taking the remainder
of his vacation to include the Thanksgiving holiday. He
returned to work on Monday, November 28. When he
went to his machine he discovered that his tools were
gone and was told that he was wanted in personnel. After
waiting in the personnel office for 20 or 25 minutes, he
was taken into Employment Relations Manager
Bearden's office where Employment Manager John
Brady told him that he had violated the no-solicitation
rule on November 22 and was being discharged. Porter
told Brady that he had not given out "any union cards on
the Company's time" and had not violated the rule. Brady
replied that "he had a written statement from an em-
ployee in another department" that Porter had violated
the rule. Brady did not say who it was and Porter did not
ask who it was. Brady then asked Porter if he was
satisfied with various aspects of his work and Porter
replied that he was not. During the interview Brady had
written something and at the end of the interview
presented Porter with a statement which he asked Porter
to sign. Porter refused to sign because Brady did not have
a copy for him.
Vance Galloway, a current inspector for the Respond-
ent of some 9-1/2 years' tenure, testified on direct at the
call of Respondent as follows. One afternoon in mid-
November, when he was at Porter's machine, the latter
asked him if he "was ready to sign over with the Union
boys." Porter had also asked him the same question a few
days previously. At the time of the current incident Glen
Adams was present. Porter showed Galloway a union
pamphlet claiming that the last four presidents were in
favor of unions. About a week later Galloway reported
this incident to management. This he did because Adams
was "pressuring" him (presumably about the Union) and
was cutting in on Galloway's worktime.
On cross-examination Galloway admitted that he was
not in favor of the Union and that Porter knew this. He
also admitted that he knew that Porter was "ribbing" him
or "kind of poking" fun at him a bit. He testified that
Porter did not show him a union card on this occasion. He
also testified that it was Adams who had called him over
to the machine and that it was Adams who wanted him to
read the'union pamphlet which Adams had gotten out of
his toolbox. In a sworn statement Galloway had stated
that Porter had asked him if he "was ready to sign over
with the boys" not using the word "union" that he had
used on the stand." In his statement he also said that
Porter's "solicitation" did not interfere with his work but
on the stand he testified to the contrary. In the statement
he also said that "our conversation lasted no longer than
it took to say what I said happened above." On the stand,
he testified that the conversation lasted 7 or 8 minutes.
Conclusions as to Porter's Discharge
As I have indicated, there was no real necessity to
determine if Porter did or did not in fact solicit Camp to
sign a union card in the water house as Camp testified.
Even if he did not, so far as the record shows, that is what
Camp told his supervisors and it can be assumed that that
is what they believed. But the mischief is that such a be-
1095
lief in no way protects Respondent in its action regarding
Porter's warning and discharge.
In the first place, the preemptory and disparate way the
warning was handled - taking Camp's word without giv-
ing Porter any chance to explain or defend himself- hints
of a discriminatory motive. But more important the sim-
ple fact is that, even giving credence to every bit of
Camp's testimony, such a finding would not show that
Porter violated the no-solicitation rule. He and Camp
both were on personal time which under the circum-
stances here cannot be considered working time. Further-
more, even if it could be determined that the incident took
place during working time, it obviously could not have in-
terfered with production - at least not with Respondent's
production. On this basis alone I believe that the conclu-
sion is fully warranted that Porter's discharge was dis-
criminatory within the meaning of the Act.
However, analysis of the culminating incident upon
which the discharge was based resolves any possible
doubt that it was grounded in a discriminatory motive.
Thus, not only is the same preemptory, disparate attitude
displayed again by Respondent, but the incident itself is
even more baseless in validity or cause than the Camp in-
cident. I am convinced that Porter's remark to Galloway
was not a solicitation and was no more than the type of
casual remark that was customarily condoned by
Respondent in its day-to-day operations. In my opinion,
Respondent's attempt to seize upon this innocuous
remark and hold it up as a violation of its no-solicitation
rule is patently discriminatory and demonstrates its
illegal motive.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Company set forth in section III,
above, and there found to constitute unfair labor prac-
tices, occurring in connection with the operations of the
Company set forth in section 1, above, have a close, inti-
mate, and substantial relation to trade, traffic, and com-
merce among the several States, and tend to lead to labor
disputes burdening and obstructing such commerce and
the free flow thereof.
V. THE REMEDY
In view of the findings , set forth above, to the effect
that the Company has engaged in unfair labor practices
affecting commerce it will be recommended that it be
required to cease and desist from such unfair labor prac-
tices and take appropriate affirmative action, including
the offering of reinstatement to W. C. Porter with
backpay calculated in accordance with the remedial prin-
ciples of F . W. Woolworth Company, 90 NLRB 289, and
Isis Plumbing & Heating Co., 138 NLRB 716. Since the
discharge of an employee in reprisal for his participation
in the exercise of rights guaranteed in the Act affects the
very basis of such rights, the cease -and-desist provisions
should be appropriately broad. N.L.R.B. v. Entwistle
Mfg. Co., 120 F.2d 532 (C.A. 4).
On the basis of the foregoing findings of fact and upon
the entire record in this case , I make the following:
11 This comports closely with Porter's testimony which was that he had
asked Galloway when he was going to come over to his (Porter's) side -
knowing that Galloway was never going to sign a union card.
1096 DECISIONS OF NATIONAL
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. By promulgating, publishing, distributing, maintain-
ing, and enforcing a rule prohibiting employees from sol-
iciting fellow employees to sign authorization cards
and/or membership cards in any organization during
working hours the Company has engaged in unfair labor
practice's within the meaning of Section 8(a)(1) of the Act.
3. By discharging employee W. C. Porter in reprisal
for his union activities, the Company has engaged in un-
fair labor practices defined in Section 8(a)(3) of the Act.
4. The aforesaid unfair labor practices affect com-
merce 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 the Company, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging employees because of their union
sympathies or activities.
(b) Promulgating, publishing, distributing, maintain-
ing, enforcing, or applying any rule or regulation prohibit-
ing employees from soliciting fellow employees to sign
authorization cards and/or membership cards in any or-
ganization during their own personal or nonworking time.
(c) In any manner interfering with, restraining, or
coercing employees in the exercise of their right to engage
in concerted activities for the purpose of mutual aid or
protection.
2. Take the following affirmative action which appears
necessary and appropriate to effectuate the policies of the
Act:
(a) Offer W. C. Porter immediate and full reinstate-
ment to his former or a substantially equivalent position
without prejudice to his seniority or other rights and
privileges, and make him whole for loss of earnings in ac-
cordance with the provisions of this Decision entitled
"The Remedy."
(b) Notify W. C. Porter if he is presently serving in the
Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Train-
ing 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,
timecards, personnel records and reports, and all other
records necessary to analyze and give effect to the
backpay requirements hereof.
(d) Post at its plant at Easley, South Carolina, copies
of the attached notice marked "Appendix."12 Copies of
such notice, on forms to be furnished by the Regional
Director for Region 11, after being duly signed by the
Company's authorized representative, shall be posted im-
mediately upon receipt thereof, and be maintained by it
thereafter, for 60 consecutive days, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Company to ensure that said notices are not al-
tered, defaced, or covered by other material.
LABOR RELATIONS BOARD
(e) Notify the Regional Director for Region 11, in
writing, within 20 days from the date of this Decision,
what steps have been taken to comply with the terms
hereof. 13
IT IS FURTHER RECOMMENDED that the complaint be
dismissed with respect to allegations of unfair labor prac-
tices not herein found to have been committed.
12 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."
13 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
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
As the result of a hearing before a Trial Examiner of
the National Labor Relations Board, at which the Com-
pany, the Union, and the General Counsel of the Board
were represented by their attorneys, and at which wit-
nesses testified and were examined and cross-examined
and evidence was received, it has been found by the Trial
Examiner, who heard the witnesses and considered the
evidence, that the discharge of W. C. Porter on November
28, 1966, was in violation of the National Labor Rela-
tions Act.
Accordingly, in accordance with the Recommended
Order of the Trial Examiner, we notify you that:
WE WILL NOT discourage legitimate union activi-
ties of our employees by discharging an employee
because he has engaged in such activities.
WE WILL pay to W. C. Porter, the wages he has
lost as the result of his discharge on November 28,
1966, plus interest and WE WILL reinstate this em-
ployee to his former or substantially equivalent job
without loss of his seniority or other rights.
WE WILL NOT promulgate, publish, distribute,
maintain, enforce, or apply any rule or regulation
prohibiting employees from soliciting fellow em-
ployees to sign authorization cards and/or member-
ship cards in any organization during their own per-
sonal breaks or nonworking time.
WE WILL NOT in any manner interfere with the ex-
ercise by employees of their rights under Section 7 of
the National Labor Relations Act.
SACO-LOWELL SHOPS, A
DIVISION OF MAREMONT
CORPORATION
(Employer)
Dated By
(Representative) (Title)
SACO-LOWELL SHOPS 1097
This notice must remain posted for 60 consecutive or compliance with its provisions, they may communicate
days from the date of posting and must not be altered, directly with the Board's Regional Office, 1624
defaced, or covered by any other material. Wachovia Building, 301 North Main Street, Winston-
If employees have any question concerning this notice Salem, North Carolina 27101, Telephone 723-2911.