Marion Manufacturing Co.

National Labor Relations Board - Board Decisions

Aug 24, 1967

167 N.L.R.B. 213 (N.L.R.B. 1967)

MARION MANUFACTURING COMPANY 213
Marion Manufacturing Company and United Tex-
tile Workers of America , AFL-CIO. Cases
I1-CA-3079 and 11-CA-3231
August 24, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On June 12, 1967, Trial Examiner John M. Dyer
issued his Decision in the above-entitled proceed-
ing, finding that the Respondent had engaged in cer-
tain unfair labor practices and recommending that
it cease and desist therefrom and take certain affir-
mative action, as set forth in the attached Trial Ex-
aminer's Decision. He also found that Respondent
had not engaged in certain other unfair labor prac-
tices alleged in the complaint. Thereafter, the
Respondent filed exceptions to the Trial Ex-
aminer'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 Respondent's ex-
ceptions, and the entire record in the case, and
hereby adopts the findings, conclusions, and recom-
mendations 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 and hereby or-
ders that the Respondent, Marion Manufacturing
Company, Marion, North Carolina, its officers,
agents, successors, and assigns, shall take the ac-
tion set forth in the Trial Examiner's Recom-
mended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Labor Relations Act, as amended, by its discharge of em-
ployee John E. Wilson on July 14. On September 28, a
complaint was issued alleging 8(a)(1), (3), and (4) viola-
tions based on these charges, and Respondent's answer
admitted the essential commerce information but denied
any violations of the Act. Case 11-CA-3079 was heard
on January It, 1967, in Morganton, North Carolina.
General Counsel's motion to withdraw complaint para-
graph 7, which alleged an independent violation of Sec-
tion 8(a)(1), was permitted without objection. All parties
were given full opportunity to participate in the hearing
and to examine and cross-examine witnesses. Briefs were
not submitted.
On March 17, 1967, counsel for the General Counsel,
alleging that the Regional Director had issued a complaint
in Case 1 I-CA-3231 on a charge filed by the Union and
that Respondent was persisting in a pattern of violations
of the Act, requested reopening of the hearing and con-
solidation of the cases. Without objection, I granted the
motion and reopened the hearing in Marion, North
Carolina, on May 10. All parties were permitted to par-
ticipate fully and to examine and cross-examine wit-
nesses. The evidence taken related to the question of
whether employee Clinton H. Moore was discharged in
violation of the Act, or for cause. Again Respondent ad-
mitted the essential commerce information and the fact of
discharge but denied violating the Act.
Due to the allegations, my attention was directed to a
prior case involving this Company (161 NLRB 55),
which I heard. My Decision in that matter issued on July
5, and the Board on October 18 issued its Order affirming
the decision and adding thereto a provision that Respond-
ent should cease discriminatorily promulgating or en-
forcing its no-solicitation rule.
On the complete record in this case, and taking notice
of the prior case and on my evaluation of the witnesses'
reliability based on the evidence received and my obser-
vation of their demeanor, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT AND THE LABOR OR-
GANIZATION INVOLVED
Respondent is a North Carolina corporation engaged
in the manufacture of textile products at its plant in
Marion, North Carolina, from which it annually ships
products valued in excess of $50,000 directly to points
outside the State of North Carolina and annually receives
directly from points outside the State of North Carolina
raw materials and supplies valued in excess of $50,000.
I find that Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
Respondent admits and I find that the Union herein is
a labor organization within the meaning of Section 2(5) of
the Act.
JOHN M. DYER , Trial Examiner : The United Textile
Workers of America, AFL-CIO (herein called the
Union ), filed a charge and amended charges in Case
11-CA-3079 in June , July, and August 1966' alleging
that Marion Manufacturing Company (herein variously
called Respondent , the Company , or Marion Manufactur-
ing) violated Section 8(a)(1), (3), and (4) of the National
' Unless otherwise stated all dates herein occurred in 1966
II. THE UNFAIR LABOR PRACTICES
A. Background and Issues
John E. Wilson , the alleged discriminatee in Case
11-CA-3079, testified in the prior proceeding concerning
various solicitations made at the Company with the ap-
167 NLRB No. 27
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parent knowledge and approval of supervisors. During
cross-examination in that case, Wilson was questioned as
to whether he had talked about the Union to other em-
ployees and whether he had signed up people in the plant.
He admitted that he had talked to a number of people in
the plant, but had only gotten one person to sign a card.2
In the prior case, when Fred Rumfelt was discharged
for his union activities, Respondent said he was
discharged because he had violated a no-solicitation rule
which stated:
No one will be permitted to engage in union organiz-
ing activities during work time. Anyone who does so,
and thereby neglects his own work or interferes with
the work of others, will be subject to disciplinary ac-
tion including discharge.
Respondent asserted that Rumfelt during working hours
had talked to a new employee asking him to join the
Union, thereby breaking its rule.3 Respondent's Personnel
Director Parker testified in that case he had taken a state-
ment from the new employee and made no further in-
vestigation. Rumfelt was fired without being informed of
the substance of the charge against him and without a
chance to defend himself. This precipitous action was
taken despite Rumfelt's satisfactory 17-year work history
with Respondent. Respondent did not reveal the identity
of Rumfelt's accuser at the North Carolina Unemploy-
ment Commission hearing which was held to determine
whether Rumfelt was entitled to payments without
disqualification. Respondent's personnel director gave
testimony at that hearing which was quoted in the prior
decision and which has probative value here.
Q. Now, there's a possibility that if he'd gone
over there and talked to him a little bit, say a few
minutes there about baseball or something else and
it would have slowed down his work or something,
well, he'd probably received a warning for its
A. That's correct sir.
Q. And after he got so many warnings a possibili-
ty he might have been discharged if this thing had
continued, is that correct?
A. That's the procedure, yes.
Weavers at Respondent had no particular lunch period
or breaktime, but worked 8-hour shifts and took breaks or
ate lunch when their work was caught up and the looms
running. As noted in the prior decision, testimony in-
dicated that employees conversed frequently with one
another and with their supervisors on various subjects,
and there was no indication that this practice had changed
or that there is or was any restrictions on talking.
Respondent shut down for its summer vacation after
July 2 and reopened on July 11. On July 8, the Charging
Party prepared a leaflet (G.C. Exh. 4) describing the
Order in the prior decision and the leaflet was signed by
the members of "The Local Organizing Committee" in-
cluding John Wilson. This leaflet was distributed at
Respondent's plant gates on July 1 I by John Wilson and
others.
8 In the prior Decision John Wilson was referred to in sec 11, B, ¶I as
follows-
As instances of such solicitation , Respondent indicated that Fred
Rumfelt had solicited among others employee Carl Moody on com-
pany time and intimated it knew of an employee who signed a union
authorization card for employee John Wilson during work hours On
cross-examination Wilson acknowledged that he had talked to other
employees about the Union and signing authorization cards during
The first issue in this proceeding is whether John Wil-
son was discharged "for neglecting his own work and for
interfering with the work of others " or whether such
reason is a pretext to conceal that Wilson was discharged
for engaging in union activities and for testifying in an
NLRB proceeding . The issue posed in Case
II-CA-3231 is whether Clinton H . Moore was
discharged for cause or whether the reasons advanced are
a pretext to cover a discharge violative of the Act.
B. John Wilson 's Discharge (Case 11-CA-3079)
Wilson testified without contradiction that he had en-
gaged in union activity before the prior case with Union
Representative Robinson and Fred Rumfelt and con-
tinued to engage in union activity in and outside the plant
following Rumfelt's discharge.
On July 11, after distributing the handbills mentioned
above, Wilson went to his looms at the start of the second
shift, turned his "pick" clock, but before beginning work
was told by his supervisor, Duncan, that Overseer Fisher
wanted them in his office. Fisher said they might as well
get to the point, that they were sending Wilson out for 3
days with the intention of discharging him for neglecting
his own work and interfering with others and he was to re-
port to Personnel Director Parker's office on Wednesday
(July 13) to get the decision. Wilson asked what time he
was to report. Fisher said 9 a.m. and Wilson left. On
Wednesday Parker said he guessed Wilson knew what the
decision was. Wilson answered that he guessed so. Parker
said Wilson had been interfering with other people's work
and neglecting his own work and then told him about
unemployment compensation. Wilson asked Parker when
he had interfered with anyone's work and Parker replied
that he could not tell him that. Wilson asked whom he had
interfered with and Parker said, "Well, John, you have
been through this before ... you will find out at the hear-
ing. I guess you will file charges."
Parker testified he gave Wilson a copy of an unemploy-
ment compensation form which said that he was being
discharged "For neglecting his own work and for interfer-
ing with the work of others." Wilson asked him the identi-
ty of the person saying that he did not remember violating
any rule or interfering with anybody's work. Parker states
he told Wilson that he could not tell him who it was at that
specific time, that Wilson was familiar with these circum-
stances and knew that he would have to attend a hearing
and eventually testify at the unemployment hearing if he
chose to go that route. Parker denied saying anything
about a Labor Board hearing. Wilson's and Parker's
testimony is in substantial agreement with the exception
of whether Parker said Wilson would file charges or go to
the Unemployment Compensation Commission. It is
probable Parker used the word "hearing" and Wilson
guided by Rumfelt's history interpreted it to mean an
NLRB proceeding. In these circumstances and with both
work hours, but there was no indication when or where such occur-
rences took place, that is during break or rest periods, inside the plant
or in the yard Respondent did not offer any testimony as to when or
where the Wilson solicitation, concerning which it indicated it had
knowledge , took place
The rule was held invalid and it was further found that Rumfelt had
not broken this rule
MARION MANUFACTURING COMPANY 215
men aware of that prior history and that virtually all em-
ployees would file for compensation, it is reasonable to
assume Parker meant Wilson might file charges with the
Board but didn't use the precise words he denied using.
At the time of his discharge Wilson had been employed
at the Company for 6-1/2 years and had been a weaver for
2-1/2 years. According to his uncontradicted testimony
he made production bonuses most of the time . Respond-
ent agreed that Wilson's production did not enter into
his discharge stating that there were other employees who
were retained who were making less production than Wil-
son and there were some who were making more. Wilson
testified that the foreman of the slasher room asked him
to work an extra shift in the slasher room on a number of
occasions since he had originally worked there before
becoming a weaver and that he performed the extra work.
There seems to be no doubt that Wilson was considered
a good worker, skilled in several occupations. Wilson
testified at the unemployment compensation hearing
about an incident with Supervisor Duncan, in which Wil-
son laughed at something Duncan said and Duncan re-
peated it making it plain that he was not to go into the
slasher room while on his weaving job. At the unemploy-
ment hearing Parker said that the incident with Duncan
was not the reason for Wilson's discharge.
Parker in essence confirmed this prior statement by
testifying that Wilson was discharged because he had in-
terfered with the work of employee Danny Franklin. Ac-
cording to Parker, Franklin came to him on two occasions
and complained about an employee interfering with his
work. On the first occasion, during the third week in June,
Franklin complained to Parker that a boy in the weaving
room was bothering him about the Union, had been to his
home and had interfered with his work two or three times
Parker stated that at that time Franklin did not know the
name of this boy, but did know his name on the second
occasion.4 The second meeting supposedly took place on
July 1, some 3 or 4 days after Franklin had been trans-
ferred from the weaveroom to the slasher room. Accord-
ing to Parker, Franklin gave John Wilson's name, stating
he had been stopped from working by Wilson on three or
four occasions, lasting up to 5 or 7 minutes. Franklin sup-
posedly had been called from his job, laid down his
broom, and went over to see Wilson on at least one occa-
sion. On each occasion Wilson assertly was bothering
Franklin about joining the Union. According to Parker,
Franklin was transferred to the slasher room 2 to 4 days
before his second conversation with Parker, and had not
been bothered by Wilson during that period. During this
second meeting Parker asked Franklin if he would like to
make a written statement about Wilson's conduct and
Franklin agreed to do so. Parker stated that he called
Plant Manager Richie and Superintendent of Weaving
Wyatt into his office and let them hear Franklin's state-
ment. Parker testified that "They, like myself, were con-
vinced that John had neglected his work, and had inter-
fered with Danny Franklin. So, we made a written state-
ment and Danny signed it." In response to a question as
to who decided to discharge Wilson, Parker said "Mr.
Richie, and Mr. Wyatt, and myself, believed Danny's
story, and Mr. Richie informed Mr. Wyatt to go back and
to have Mr. Fisher to send John Wilson out for 3 days
with the intent to discharge him."
Respondent's counsel during cross-examination of Wil-
son asked whether he had talked to a number of named in-
dividuals in the plant concerning the Union. Wilson
testified that he talked to several employees whose jobs
abutted his, when he and they were not busy at their work
and that they discussed subjects ranging from the Bible
through the Union. He said some of the employees such
as Danny Franklin and Doug Taylor would come to his
work station and talk against the Union. Franklin was a
sweeper and usually followed the "blow-off boy" through
the plant in his area, sweeping up the lint after the "blow-
off boy" blew it off the looms with his airhose. Wilson
stated he talked to Franklin on several occasions when he
stopped at his-job, but denied calling Franklin to him or
going to Franklin, said Franklin was opposed to the
Union, called him a Communist and asked why he did not
take off his union button, saying he could not work there
and wear that badge, that the Company would fire him s
Together with another man Wilson had gone by
Franklin's house to see if they could talk to Franklin
about the Union, but were never able to talk to him.
Parker testified in a conclusory manner with no details
or explanation, that he, and apparently the other super-
visors who participated in the discharge decision, learned
that Wilson had been talking to other employees and that
"Well, the conversation with Danny, and after Danny
signed the statement, well, that was the straw that broke
the camel's back."
In response to the question of what investigation was
made of Wilson's alleged deficiencies, Parker testified the
investigation consisted of taking Franklin 's statement and
nothing further, other than the discussion between him-
self, Plant Manager Richie, and Weaving Superintendent
Wyatt.
Although Wilson worked July 1 and 2, the layoff was
not put into effect. Asked why the decision was not en-
forced immediately, as Parker' s relating of Richie's order
would indicate should be done, Parker said that due to the
plant's 1-week vacation they would not have had 3 con-
secutive days for Wilson to be off, ignoring the fact that
in addition to the day in question and the following day,
July 2, the other day or two needed to make up a 3-day
term could have been tolled when the Company resumed
work on July 11.
Respondent in meting out "discipline" to Wilson,
ignored Franklin's supposed neglect of his work. Parker
stated he did not question Franklin as to why he left his
broom and neglected his work when called by another
employee. The question of why Respondent gave no
thought to Franklin's supposed work neglect, since obvi-
ously he was not disciplined or chastised , can be an-
swered by the suppositions that either it was minor or did
not exist or because Respondent's only thought was to rid
itself of Wilson. Another question is why Franklin
gratuitously offered this testimony about neglected work
to Respondent 's personnel manager and why it was of-
fered several days after Franklin started work in a dif-
" This testimony in essence conflicts with Franklin who testified he
learned Wilson 's name probably within 3 to 4 days after he started work,
which was on June 8
5 I credit Wilson I cannot credit Franklin's not remembering talking
against the Union or his denials of calling Wilson a Communist Franklin's
demeanor and testimony established not only his opposition to the Union,
but to paraphrase his words , that he was not going to go against the Com-
pany when they were good enough to give him a job
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ferent department where he would have no contact with
Wilson . Franklin , when questioned about this , testified:
Well, I let it go for awhile , but I was-knew that I
was new there , and I needed a job , and I knew that I
needed a job , and I said to myself , I am not taking
any chances talking with John Wilson , and him being
for the union , and losing my job , when I needed it.
And so , I let it go for awhile , and then I didn't
know Mr . Duncan , knew that he was a foreman, but
I didn 't know him personally.
But I knew Mr. Parker , and so that is why I went
to him . And to tell him about the incidents.
This answer shows that Franklin felt he was compelled
to exonerate himself from the apparent stigma of being
seen talking with a known prounion employee. That
Franklin sought such exoneration is clear from his talking
to Parker.
That Respondent would once more rely on such a
transparent story with no attempt to give it any even-
handed consideration, or even the appearance of such,
demonstrates its readiness to accept and use such a pre-
text to further instill fear of Respondent 's retaliation in its
employees if they supported the Union . The precipitate
and shabby treatment accorded John Wilson has its direct
counterpart in Respondent's treatment of Rumfelt in the
prior case . Here no direct mention was made by Respond-
ent of its no-solicitation rule as such , but most of the
same language used in the illegal rule was given as the
reason for Wilson 's discharge , so that the inference is that
the rule was here being enforced but not cited . Beyond
this we again have Respondent discharging an employee
with long and valued service after securing a statement
from a new employee that he had been bothered about the
Union . Once more we have the precipitate discharge with
no explanation of the offense and indeed Respondent hid-
ing the supposed facts, with the employee ' s consequent
inability to defend the charge , and Respondent having no
interest or intention of affording the employee such an op-
portunity . Here we have one further fact , the admission
by Respondent 's complaining witness that he needed his
job and did not want to take any chances because he had
been talking to a known union proponent. This aura of
fear is indicative of employee understanding of Respond-
ent's attitude and was by Wilson's discharge further
enhanced . It is evident that Franklin sought to curry
favor with Respondent, and did so, with his "reports" on
a known union protagonist . This story was seized and
used by Respondent as its reason to discharge Wilson
despite Personnel Director Parker's prior testimony to
the North Carolina Unemployment Commission (see
Background and Issues, above) that the practice would
be to warn employees whose talking interfered with
others' work . That discharge resulted here , calls for the
conclusion that Respondent was here enforcing its invalid
no-solicitation rule (see Background and Issues , above).
I can give no weight either to the inference apparently
sought, or to the sweepingly conclusory testimony of
Parker , that weighing heavily in Respondent 's decision to
discharge Wilson , was its knowledge .that he had talked to
other employees . Respondent apparently seeks to have
me draw an inference that such talk interfered with the
employee 's and Wilson ' s work . But, Respondent did not
offer testimony to prove either the talking , its amount, or
that such interfered with either Wilson 's or other em-
ployees' work or that it had any knowledge of any facts
regarding such neglect when it discharged Wilson. Wil-
son's admissions in the prior hearing and in the present
one, that he talked to some other employees does not
show neglect or establish Respondent 's knowledge of any
of these factors. Indeed Wilson 's good work record would
appear to be prima facie evidence that he did not neglect
his own work or interfere with others to any extent more
than any other employee.
Respondent offered no testimony , other than
Franklin 's, to show any work neglect of, or caused by
Wilson, presumably, either because of the invalidity of its
antiunion no-solicitation rule, or because it had no such
testimony to offer.
General Counsel' s position is that Respondent did not
decide to lay off or discharge Wilson until after it received
the decision in the prior case. In support of this position
General Counsel alleges that the 3-day layoff period
started July 11, and not on July 1, as it should have if
Respondent 's officials had on that date decided to lay off
Wilson . Respondent's position is that the layoff decision
was made July 1, but not put into effect until July 11, so
it could run for 3 consecutive days. The fact that the
layoff was in effect for only 2 days before Wilson was told
of the decision to terminate him and the order from Richie
as related by Parker seem to belie Respondent 's position.
Wilson was told on July 11, that he was being laid off with
the intent to discharge him but to report back and get the
decision on July 13. It would seem from such procedure,
that the final decision to discharge him was made between
July 1 I and 13.
The conflux of the patent flimsiness of Respondent's
asserted reasons for discharging Wilson with the facts
that Wilson was a known prounion proponent who had
testified against Respondent and that mention of such
testimony was made in the prior decision , added to
Respondent ' s matching here of the pattern of violations
followed in the prior case and that Respondent took its
action immediately after the issuance of the decision in
that case, guarantee that Respondent 's action can not be
a mere coincidence. Respondent 's action at that time and
in that manner make it appear that it wishes to demon-
strate most forcefully to its employees that it will exact its
fullest penalties where an employee engages in union ac-
tivity and/or testifies at a Board proceeding.
The timing of this discharge with the issuance of the
decision and the Union' s handbill about the decision
under the circumstances set forth above, seems calcu-
lated to demonstrate not only Respondent 's hostility to
the Union and its proponents and its ability to punish
those who would testify against it , but also its lack of
respect for the Act which guarantees its employees their
Section 7 rights.
I can only conclude and find that Respondent violated
Section 8 (a)(4), (3), and (1) by its discharge and refusal to
reinstate John E . Wilson.
C. Clinton H . Moore's Discharge (Case 11-CA-3231)
Clinton Moore began to work for Respondent in Sep-
tember 1950 , and after helping install drafting equipment
on spinning frames, swept and helped creel for 2-1/2
years on the second shift. He then moved to the first shift
as a doffer in the spinning room where he remained for
approximately 14 years until discharged . Moore has some
defects in his color vision , which apparently were
discovered in the two or three color vision tests he took
while working for the Company.
MARION MANUFACTURING COMPANY 217
A thick rope of yarn called roving is run through the
spinning frame and is drawn into a narrow yarn running
through the rollers onto one of the frame's 240 bobbins.
The doffer removes the full bobbins and places empty
bobbins on the frame. The full bobbins of yarn in the
winder room are run into large "cheeses," so called
because since after being run on the winder machine the
yarn package looks like a large round head of cheese
which, depending on the yarn count (whether the yarn is
coarse or fine), may contain between 40,000 and 100,000
yards of yarn. Next, the yarn from many cheeses is run
onto a loom beam to form the warp for cloth. The loom
beam, when wound, contains upwards of 1,600 separate
threads, each 1,500 to 2,500 yards long. Filling yarn (the
cross thread in fabric) is kept on bobbins which are in-'
serted into a battery (receptacle) and are fed into the
loom. Empty bobbins from the winder room are returned
to the spinning room for further use. The doffers have
their doff carts in which they carry empty bobbins and on
which they place the full bobbins as they doff (remove)
the yarn. They secure the empty bobbins, either from
storage bins or from the carts sent from the winder room.
A 1-yard swatch of cloth is cut from the first part of the
cloth after the loom starts up and is tested and dyed to
determine whether any mistakes have been made to that
point and that all of the yarn is the same blend. If one
strand of yarn of a different blend has been inserted at any
point the dye would show differently as to that one thread
since different blends take dye in different ways. Since a
yarn from one cheese may run on as many as 30 loom
beams and may be tied in at any number of places as the
cheeses run out, it is necessary to try to determine even
at this stage whether any mistakes have been made. If a
mistake is made in filling yarn, since the whole bobbin
runs out crosswise in the cloth, it may involve only 3 to 5
yards of cloth, whereas if the wrong blend of warp yarn is
in the cloth after the test, it might cause the downgrading
of 1,500 to 2,000 yards of cloth.
Moore complained several times that different colored
bobbins in the same box were being sent back from the
winder room. The doffer in shaking bobbins from the
boxes into the box on his doff cart should eliminate mixed
bobbins at that point, and if not, he should catch them
when he places them on the spinning frame while remov-
ing the full bobbins. According to Moore, shortly before
he was discharged, his job consisted of doffing 29-1/2
frames per day. Because of his color defective vision'
Moore said he mixed bobbins and yarns throughout his
employment but had never received anything more than
a verbal reprimand to be more careful and do a better job
and try not to mix them. This pattern changed, according
to Moore, after Respondent in the fall of 1965 received
the Union's letter naming the union committee members
which included Moore as the sole union committee
member in the spinning department. Roy Huffman and G.
L. Jackson who were respectively Moore's shift foreman
and spinning room overseer normally were in Moore's de-,
partment once or twice a day until the union letter was
received, but after that, according to Moore, they spent
large amounts of time on his job and continued to do so
until the time he was discharged. One to two weeks be-
fore Respondent received the union letter, Moore
received a written warning from Foreman Huffman in re-
gard to mixing colors of bobbins. Moore recalled making
a mistake on a later occasion and that Huffman talked to
him about it three times on that day. On the following day
Moore mixed another bobbin and received a written
warning for both mistakes. On one occasion Moore said
he told Huffman he was doing the best he could and Huff-
man answered he thought Moore was trying hard. On
another occasion Moore told Huffman he could do what
he wanted about Moore's mixing. In early December
Huffman told Moore he seemed to have a better attitude
and was not mixing the yarns and colors as much. Moore
replied he had not changed his attitude and was still mix-
ing yarns and colors the way he had in the past. Huffman
testified he never said anything about Moore's attitude
but on one occasion remarked to Moore that he wasn't
having as many problems with the bobbins lately. Later
in December, Moore was told by Spinning Room Over-
seer Jackson that he and Foreman Huffman had
discussed Moore's continual mixing of bobbins and that
it was a very serious thing. Moore states he told Jackson
he had mixed colors over the years and was mixing no
more now than he had in the past, that he was trying as
hard as he could and that he was color blind. According
to Moore, Jackson said he couldn't help that, that the next
time Moore mixed bobbins or colors he would be sent out
for 3 days with the intent to discharge him. Moore replied
it was no use to do that, that he would continue to mix the
colors and bobbins. On Tuesday, January 17, Moore was
doffing a frame, when Huffman showed him a bobbin and
told him he had had it and to go to the office. After Huff-
man told Jackson about the mistake, Jackson said they
couldn't have it, that it was very serious and Moore
should go home and come back on the following
Thursday.
On Thursday Moore went to Personnel Director
Parker's office where Parker read the discharge slip to
him, told him that the company vice president and general
manager had been over the matter and decided that he
should be discharged. Moore asked when he would get
his retirement checks and Parker gave him some figures
as to the amounts, and when the checks would be ready.
Moore complained that he should be getting a higher rate
on his retirement deductions and told Parker that he had
not been discharged for good cause, that he had always
mixed bobbins and they had always known that. On the
following day Moore reported to the State Unemploy-
ment Compensation office where it was discovered that
the discharge slip was unsigned and he went back to
Parker's office to have the oversight corrected. Parker
told Moore he had been checking into the retirement
question and they discussed it. Moore asked for a copy of
the plan and Parker said he would have a copy sent to
Moore's attorney.
It was developed by Respondent that from the early
1950's until sometime between 1957 and 1959, there
were two types of bobbins used in the spinning room, one
a wooden bobbin and the other a green-colored cardboard
or paper bobbin. The mill, which had been a cotton mill in
the early 1950's, gradually turned to synthetics and in-
troduced new blends and types of synthetic fibers. Until
the 1960's only a few blends were run by the Company
with probably no more than three different ones being run
at any one time. To differentiate between these blends a
fugitive (soluble) dye tint of a particular color would be
daubed on the wound bobbins of yarn on the spinning
frame. A can of dye with a small paint brush would be
placed on the head of the spinning frame and it was then
the doffer's job to dip the brush in the can and walk down
the spinning frame daubing a bit of paint on each of the
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bobbins of yarn . Through the 1960's Respondent has
continued to add various blends until at the present time
it has nine different blends plus one cotton yarn . To dif-
ferentiate the blends and the various sizes of yarn,
Respondent uses nine different fugitive dye tints and
seven to nine different colors of bobbins.
William Broadwell , a doffer who had worked for
Respondent for about 13 years, testified for General
Counsel that he had defective color vision and during the
time he doffed had been shown three bobbins that he
mixed . He did not know whether he had mixed any more
than that , since that was all he had been shown . Broad-
well said he had not found mixed bobbins left by the
doffer who preceded him on the other shift . General
Counsel ' s witness Charlie Jenkins , a fixer who had
worked for the Company some 45 years until April 1966,
testified that Moore mixed bobbins the whole time he had
worked there . Jenkins was vague as to how Moore could
have mixed bobbins when Respondent was using only
one color of bobbin in the 1950's. He testified he had
three doffers with whom he worked on his shift and that
he found mixed bobbins on all of their jobs, but that
Moore was the worst and he did not report all of Moore's
mixing to the foreman . In contrast to testimony that
Moore had used the wrong dye tint on two to three occa-
sions, Jenkins said that none of the other doffers had ever
done that to his knowledge . Jenkins stated that approxi-
mately 4 weeks after the union letter to Respondent was
posted in the plant , Foreman Huffman told him he would
have to watch Moore closer since he was mixing more
bobbins. In contrast to Moore's testimony about the in-
creased visits of supervision in the department , Jenkins
said he had not observed such . Another witness for
General Counsel , Mary Pirkle , an employee for approxi-
mately 40 years, stated that she did not notice any in-
crease in supervisors immediately after the posting of the
union letter but said they appeared to be around fairly
often after that . She admitted that she may have noticed
the supervisors more , so that it could be that it just ap-
peared to her that they were around more. Pirkle said she
caught some bobbins mixed by Moore but didn 't recall
any mixed bobbins from other doffers who worked on her
spinning frame . John Arrowood , testifying for General
Counsel , said that the supervisors were around more after
the union letter and still were.
Foreman Huffman testified that it is his responsibility
to check on mixed yarns and that if an employee mixed
yarns or bobbins occasionally , by which he meant not
more than once every 3 to 6 months , he would talk to him
about it and explain how necessary it was to keep the
yarns separated . He estimated that in the last year Moore
mixed more bobbins than all the other doffers on his shift
combined . Some 2 weeks before the union letter was
posted, Huffman gave Moore his first written warning for
mixing bobbins. Huffman testified that at that time he had
no certain knowledge that Moore was active in the Union
although admitting he could have heard some rumors
about the Union and Moore . Thereafter Moore improved
and he had no further problems with him until May 1966.
Written warnings were given to Moore in May, July, Au-
gust , September , November , and December 1966, fol-
lowed by the conversation among Jackson, Huffman, and
Moore in December and the final written warning and
discharge in January . Some of these written warnings
concerned more than one incident . Huffman testified that
he did not give Moore a written warning for every
mistake Moore made in this period and some of the writ-
ten warnings appear to bear this out.
From Respondent's history of violations in the previ-
ous case and the violation found as to the discharge of
John Wilson, there might be suspicions that Respondent
was out to find a reason to discharge Moore, in that, ac-
cording to Moore's view, he started receiving warnings
after he became active in the Union and around the time
of the announcement of his union activities by the union
letter to Respondent, and his testimony of supervision
being around his job more frequently. However, the
suspicions are not borne out by the evidence presented by
General Counsel. Mary Pirkle, William Broadwell, and
John Arrowood don't corroborate the amount of time su-
pervision was apparently in the department near Moore's
job, nor does Broadwell, Arrowood, or Pirkle bear out the
amount and volume of errors being made in mixing bob-
bins. Jenkins, although testifying to mixed bobbins and
the large amount of mixing Moore did, testified insofar as
he knew that, no one had made a mistake in applying tints
the way Moore had on several occasions and that no
other doffers approached Moore's rate of errors. In fact
Jenkins testified that Moore didn't pay attention but just
picked up the bobbins and put them on although he could
put them on right when he wanted to do so. Moore sub-
stantiated this to a degree by testifying regarding wrong-
colored bobbins that, "Most of the time, if I had time to
look them over, I could see it." Moore also testified that
although he told the supervisors he was color blind, when
a mistake was pointed out he did not claim that he
couldn't distinguish the colors. Broadwell, who also suf-
fers from defective color vision stated that he too could
pick out the colors if he took his time, focused carefully
and tried hard.
Moore's daubing of the wrong tint on yarn on two or
three occasions appears to be pure carelessness on his
part since according to Foreman Huffman he checked on
each occasion and found that the correct tint had been
placed on the header of the spinning frame. Moore must
have picked up a container of tint from another frame.
Moore made no claim that the wrong tint had been placed
on the spinning frame.
On the occasion in August Moore placed wrong-
colored bobbins on a whole frame, which again was ap-
parently carelessness and not a question of mixing the
colors of one or more bobbins on a frame of 240 bobbins.
General Counsel in claiming disparate treatment urges
that no other employee had been given written warnings
for mixing bobbins nor had anyone been fired for mixing
yarn or bobbins. Respondent states that it had never had
an employee who so repeatedly mixed yarns and bobbins
and decided that it could no longer use Moore since he
was not exerting enough care to try to properly dif-
ferentiate between the colors of bobbins he placed on the
frames. Respondent points to the use of the wrong dye
tint as a clear example of Moore's carelessness.
There is no question but that the nature of Respond-
ent's business did change during this period of years and
it seems evident that Moore could not keep up with these
changes or did not exert himself in trying to do so. From
his testimony, Moore seems inclined to blame others for
the problems he had, thus blaming the winding room for
mixing the bobbins when he would have at least two
chances thereafter to find any mistakes. It might seem
harsh that Respondent could not place this long-term em-
ployee elsewhere since he could not perform satisfactori-
MARION MANUFACTURING COMPANY 219
ly at his position, but I cannot say that his attitude in
telling a supervisor that he would continue making
mistakes and that the supervisor could do what he wanted
was one which would create sympathy. The suspicion
that union activity and the written reprimands to Moore
which started concurrently may not be coincidental is
present due to Respondent's past actions. However, on
the basis of the testimony before me, I cannot say that
Respondent's discharge of Moore under these circum-
stances was other than for just cause. Accordingly, the al-
legation as to Moore is dismissed.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section II,
above, and therein found to constitute unfair labor prac-
tices in violation of Section 8(a)(4), (3), and (1) of the Act,
occurring in connection with Respondent's business
operations as set forth in section I, above, have a close,
intimate , and substantial relation to trade , traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
desist from in any manner infringing upon the rights
guaranteed its employees by the Act. On the basis of the
foregoing findings and the entire record I make the fol-
lowing:
CONCLUSIONS OF LAW
1. Marion Manufacturing Company is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discriminatorily laying off and discharging em-
ployee John E. Wilson on July 11 and 13, 1966, and not
thereafter reinstating him because of his union activities
and desires and because he gave testimony under the Act,
Respondent engaged in and is engaging in unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(4), (3), and (1) and Section 2(6) and (7) of the
Act.
4. By its discharge of Clinton H. Moore on January
17, 1967, Respondent did not violate the Act.
RECOMMENDED ORDER
IV. THE REMEDY
Having found that Respondent engaged in unfair labor
practices as set forth above, I recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act as follows-
Respondent having laid off and discharged and
thereafter having refused to reinstate John E. Wilson
because of his union activities and because he gave
testimony under the Act, I recommend that Respondent
offer to him immediate and full reinstatement to his
former position , or if that position is unavailable through
change in Respondent ' s operations , to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges , and that Respondent make
him whole for any loss of pay he may have suffered by
reason of Respondent ' s discrimination against him, by
payment to him of a sum equal to that which he would
have normally received as wages from July 11, 1966, the
date of his layoff prior to his discharge on July 13, 1966,
until the day Respondent reinstates him, less any net
earnings for the interim . Backpay is to be computed on a
quarterly basis in the manner established by the Board in
F. W. Woolworth Company, 90 NLRB 289, with interest
at the rate of 6 percent per annum to be computed in the
manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716. I further recommend that Respondent make
available to the Board on request, payroll and other
records, in order to facilitate the checking of the amount
of backpay due and the rights of reinstatement of John E.
Wilson.
Having found that Respondent discriminated against
John E. Wilson for exercising his rights under the Act and
because he gave testimony under the Act, and Respond-
ent having interfered with his rights and the rights of all
its other employees thereby, and having otherwise in-
vaded its employees' rights under the Act, I am con-
vinced that Respondent may commit further unfair labor
practices unless restrained from so doing. Since a part of
the purpose of this Act is to prevent the commission of
further unfair labor practices, I hereby recommend that
Respondent be placed under a broad order to cease and
On the basis of the foregoing findings of fact and con-
clusions of law , and upon the entire record in this case
considered as a whole , I hereby recommend that Marion
Manufacturing Company of Marion , North Carolina, its
officers , agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Laying off and discharging or otherwise dis-
criminating against employees for giving testimony under
the Act.
(b) Laying off and discharging or otherwise dis-
criminating against employees because of their activities
on behalf of, or membership in, United Textile Workers
of America , AFL-CIO, or any other labor organization.
(c) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their rights to
self-organization , to form labor organizations , to join or
assist the United Textile Workers of America,
AFL-CIO , to bargain collectively through representa-
tives of their own choosing , and to engage in concerted
activities for the purpose of collective bargaining or other
mutual aid or protection.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to John E . Wilson reinstatement in ac-
cordance with the recommendations set forth in the sec-
tion of this Decision entitled "The Remedy."
(b) Make John E. Wilson whole for any loss of pay he
may have suffered by reason of Respondent's discrimina-
tion against him in accordance with the recommendations
set forth in the section of this Decision entitled "The
Remedy."
(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 the amount of backpay due
and the rights of reinstatement of John E . Wilson under
the terms of this Recommended Order.
(d) Notify John E. Wilson if 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-
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing and Service Act, as amended, after discharge from the
Armed Forces.
(e) Mail a copy of the attached notice marked "Appen-
dix"6 to each employee, and post copies at its plant in
Marion, North Carolina. Copies of such notices, to be
furnished by the Regional Director for Region 11, Win-
ston-Salem, North Carolina, after being signed by a
responsible representative of Respondent, shall be mailed
by Respondent to each of the employees working in its
Marion, North Carolina, plant and additional copies shall
be posted by it and be maintained by it for 60 consecutive
days, in conspicuous places, including all places where
notices to employees are customarily posted, in its
Marion, North Carolina, plant. Reasonable steps shall be
taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 11, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.7
IT IS FURTHER RECOMMENDED that the allegations con-
cerning the discharge of Clinton H. Moore be dismissed.
8 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."
9 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify the Regional Director for
Region 11 , in writing , within 10 days from the date of this Order, what
steps Respondent 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:
Following a trial in which the Company, the Union,
and the General Counsel of the National Labor Relations
Board participated and offered their evidence , a Trial Ex-
aminer of the NLRB has found that we violated the law
and has ordered us to post this notice and to abide by
what we say in this notice.
WE WILL NOT lay off , discharge , or otherwise dis-
criminate against employees for giving testimony at
NLRB hearings.
WE WILL NOT lay off, discharge , or otherwise dis-
criminate against employees to try to discourage
them or other employees from being or becoming
members of the United Textile Workers of America,
AFL-C IO, or any other labor organization.
WE WILL offer John E. Wilson his former job with
all of his rights and any backpay due.
WE WILL NOT in any other way try to discourage
you from becoming or being members of the United
Textile Workers of America, AFL-CIO.
All our employees are free to become or remain union
members.
Dated By
MARION MANUFACTURING
COMPANY
(Employer)
(Representative ) (Title)
Note: We will notify John E. Wilson if presently serv-
ing in the Armed Forces of the United States of the right
to full reinstatement upon application in accordance 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, 1624
Wachovia Building , 301 North Main Street, Winston-
Salem, North Carolina 27101, Telephone 723-2911.