Martel Mills Corp.

National Labor Relations Board - Board Decisions

Jul 11, 1957

118 N.L.R.B. 618 (N.L.R.B. 1957)

618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2 (5) of the
Act.
2. All employees of Respondent employed at its Mansfield plant , exclusive of office
clerical employees , timekeepers , watchmen , and all supervisors as defined in Sec-
tion 2 (11) of the Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
3. The Union was on December 23, 1955, and on January 24, 1956, and at all
times material herein , and now is , the exclusive representative of all the employees in
the above-described unit for the purposes of collective bargaining within the mean-
ing of Section 9 (a) of the Act.
4. By refusing on January 24, 1956, and at all times thereafter, to bargain with
the Union as the exclusive representative of the employees in the above-described
unit, for the reasons stated above in section III of this report, the Respondent tech-
nically has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (5) and derivatively Section 8 (a) (1) of the Act.
5. For the reasons stated above the aforesaid unfair labor practices are not unfair
labor practices that have nor do not now affect commerce within the meaning of
Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Martel Mills Corporation and United Textile Workers of America,
AFL-CIO. Case No. 11-CA-961. July 11,195'
DECISION AND ORDER
On November 9, 1956, Trial Examiner Henry S. Salim issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the In-
termediate Report attached hereto. Thereafter, the Respondent filed
exceptions and a supporting brief.
The Board i 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 with the exception noted in the margin
below 2 The Board has considered the Intermediate Report, the ex-
ceptions, the supporting brief, and the entire record in this case, and
adopts the Trial Examiner's findings and conclusions to the extent
that they are consistent with the findings and conclusions herein made.
1 Pursuant to the provisions of Section 4 (n) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel [Mem-
bers Rodgers , Bean, and Jenkins].
2 After the close of the hearing the General Counsel moved to "correct " the transcript in
respect to certain testimony of witness Revis. The transcript shows that Revis testified
concerning the egg-hurling incident , which is described in the Intermediate Report, that
Supervisor Hughes told employees engaged therein " to report to him." The General Counsel
asked that the transcript be "corrected " to read that Supervisor Hughes told the em-
ployees "to pour it to 'em," and the Trial Examiner granted the motion. ( See Intermediate
Report, footnote 11.) In finding that the Respondent violated the Act, we do not rely
in any way on the testimony of Revis in this respect, either as it actually appears in the
transcript , or as "corrected" by the Trial Examiner 's ruling. Hence, we do not deem it
necessary to decide whether the Trial Examiner 's ruling in "correcting" the record was
proper.
118 NLRB No. 75.
MARTEL MILLS CORPORATION 619
1. We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (1) of the Act, as set forth in the Intermediate Report.'
2. We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (3) of the Act by discharging employee Taylor, as set
forth in the Intermediate Report.
3. We do not agree with the Trial Examiner that the Respondent
di$criminatorily discharged employee Gibson.
In September 1955, Gibson signed a union membership card, but
did not actively engage in the Union's organizing campaign. As an
aftermath of the egg-hurling incident of November 22, 1955, fully
described in the Intermediate Report, the Union instituted criminal
proceedings, against various employees of the Respondent who
allegedly had participated therein. Gibson, among others, was sub-
penaed as a witness for the State. Whereupon, Gibson's coworkers
assumed that she would testify adversely to them, and they became
resentful. On December 30, 1955, Supervisor Davis and Billie Elkins,
a coworker, advised Gibson that 4 or 5 girls were going to beat her
up. Gibson testified that during this conversation Supervisor Davis
also told her that "Mr. Rice was disappointed in me for pushing
against the mill when they had come for me and give me a job."
On the following Sunday, January 1, 1956, Gibson suffered pains
in her right lung. On Monday, January 2, Gibson was feeling worse
and did not report, as scheduled, for the 3 to 11 p. m. shift. Gibson
testified that she had requested a Mr. Vick, a coworker, to notify
Supervisor Davis that she would not report to work because of her
illness. There is no evidence in the record to show that Vick ever
communicated such a message to the Respondent, and the Respondent
denied receiving any message from Vick. Vick did not testify.
Later that evening, on January 2, Gibson went to the City Audi-
torium with her mother to see the Red Foley show. The next day,
according to Gibson, she was still sick and did not report to work.
She did go to work on the following Wednesday, January 4. When
8 The Respondent contends that the Trial Examiner erred in finding an 8 (a) (1) viola-
tion as a result of testimony concerning Davis' threat to discharge Taylor, because the
complaint did not specifically advert to this incident. We note that evidence with respect
to this incident was clearly admissible in support of the specific allegation in the complaint
that Taylor was discriminatorily discharged . And as the question of whether or not the
incident occurred was denied by the Respondent and litigated by it at the hearing, we find
that the Respondent is not prejudiced by the finding that the Respondent violated Section
S (a) (1) as a result of Davis' threat to Taylor . See Climax Spinning Company, 101 NLRB
1193, 1194 , footnote 2; James Thompson i Co., 100 NLRB 456, footnote 2; Paterson Fire
Brick Company, 90 NLRB 660 , 672, footnote 11.
The Respondent also contends that the Trial Examiner's finding connecting Supervisor
Rice with the egg-hurling incident of November 22, 1955, is defective in that the complaint
does not mention Rice in connection with this incident . It is true that the complaint is
silent as to Supervisor Rice in this connection . However, we note that Rice 's connection
with this incident was denied by the Respondent and litigated by it at the hearing. More-
over, the evidence adequately supports the Trial Examiner 's ultimate conclusion that the
Respondent violated the Act as a result of the egg -hurling incident , without specific ref-
erence to Rice. Accordingly , we find that the Respondent is not prejudiced by the Trial
Examiner 's reliance upon Rice 's part in this incident . See cases cited above.
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she reported, Supervisor Davis gave Gibson a layoff slip and told
her, "That's for Monday." Supervisor Rice credibly testified that on
Monday, January 2, the Respondent was short of help; and that
during the 3 to 11 p. m. shift, he and Supervisor Davis went to Gib-
son's home to request her to come to work. Gibson was not there,
however. On the next day, January 3, Rice learned from another
employee that Gibson had attended the Red Foley show at the City
Auditorium the night before.
The Respondent denied knowledge of Gibson's union membership
or union sympathies. It asserted that Gibson was discharged be-
cause on January 2,1956, she was absent from work without reporting,
and because during her absence, when she was scheduled to work, she
was in the City Auditorium at the Red Foley show.
Adverting to Gibson's satisfactory work record, the Respondent's
knowledge and disapproval of Gibson's union sympathies, as evi-
denced by the above-quoted remark by Davis to Gibson on December
30, and the Respondent's "entire course of conduct," the Trial Ex-
aminer concluded that Gibson's discharge was discriminatory. In so
concluding, the Trial Examiner rejected, as a pretext, the Re-
spondent's claim that Gibson's absence on January 2 was the reason
for the discharge. Underlying the Trial Examiner's reasoning in the
matter were his explicit assumptions that the Respondent actually
was informed on January 2 that Gibson would not report for work
on that date because of illness, and that the Respondent did not learn
of Gibson's presence at the City Auditorium until after she had been
discharged.
In appraising the evidence in this case with respect to Gibson and
the Trial Examiner's conclusions thereon, we note first that the evi-
dence does not support the Trial Examiner's assumptions that the
Respondent was told on January 2 that Gibson was ill and would
not report to work, and that the Respondent learned of Gibson's pres-
ence at the City Auditorium only after her discharge. For, as indi-
cated above, although Gibson may have told Vick to explain her
absence to the Respondent, there is no evidence whatever in the record
to show that Vick, or anyone else, actually notified the Respondent
that Gibson would be absent on January 2. As for the actual date
when the Respondent learned of Gibson's presence at the City Audi-
torium, the record shows that both Rice and employee Ellen Fox
testified that on January 3, the day before Gibson's discharge, Fox
told Rice that she had seen Gibson at the Auditorium on the previous
evening. This testimony stands uncontradicted and was not dis-
credited by the Trial Examiner. Accordingly, the Trial Examiner's
assumption that the Respondent learned of Gibson's presence at the
Auditorium after her discharge, based solely on the fact that at the
MARTEL MILLS CQRPORATION 621
time of the discharge Davis merely said to Gibson, "That's for Mon-
day," is not warranted, being both unsupported by any other evidence
and inconsistent with other findings made by the Trial Examiner.
Secondly, the evidence presented does not warrant a finding that
the Respondent was aware of Gibson's union sympathies and, before
her discharge, had admonished her for them. We do not agree with
the Trial Examiner that Supervisor Davis' remark on December 30
to Gibson was "an unmistakable reference to [Gibson's] union sym-
pathies and Respondent's antiunion attitude." The remark in ques-
tion, that "Mr. Rice was disappointed in [Gibson] for pushing against
the mill," is ambiguous on its face, and is not, in our opinion, of such
sort as to support the implications ascribed to it by the Trial Ex-
aminer. Moreover, the remark was made in the context of a discussion
about the subpenaing of Gibson in the criminal proceeding against
the egg hurlers, and the record shows that other employees were also
summoned to testify on behalf of the State in the same proceeding,
but that they were not subsequently discharged by the Respondent.
Such disparity of treatment of the employees subpenaed is added
reason for rejecting the implications read into Davis' remark by the
Trial Examiner. Furthermore, assuming, arguendo, that Respondent
had knowledge of Gibson's union sympathies and believed that she
would testify adversely to the egg-throwers, it is also reasonable to
assume that the Respondent would not have discharged her before
the hearing in the State criminal proceeding because such a discharge
would, we believe, assure, rather than prevent, Gibson's adverse
testimony.
As the record thus stands, it appears that on January 2 Gibson failed
to report to work; that the Respondent was not furnished with an
explanation for such absence; and that on January 3 the Respondent
learned that Gibson was in fact in the City Auditorium on the occasion
of her unexplained absence on January 2. It also appears that the
Respondent was short of help on January 2 and that a supervisor had
gone to Gibson's home on that date to persuade Gibson to come to
work, but that the mission had been fruitless in view of Gibson's
absence. In these circumstances, we are impelled to conclude that
the Respondent had adequate reason for summarily discharging Gib-
son when she reported to work on January 4; and, in the absence
of convincing evidence to the contrary, we therefore conclude that
the General Counsel has not sustained the burden of proving that
Gibson's discharge was discriminatorily motivated. Accordingly, we
shall dismiss the complaint as to Gibson.
4. Having found that the Respondent's discharge of Gibson was
not discriminatory, we shall not award her back pay or order her
reinstatement, as the Trial Examiner recommended.
622 DECISIONS OF NATIONAL LABOR RP. ATIONS BOAEI
'ORDER
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Martel Mills,
Asheville, North Carolina, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in the United Textile Workers of
America, AFL-CIO, or any other labor organization of its employees,
by discriminatorily discharging any of its employees, or in any other
manner discriminating against them in regard to their hire or tenure
of employment or any terms or conditions of employment.
(b) Authorizing, ratifying, or inducing employee assaults upon
union organizers engaged in lawful and peaceful distribution of
leaflets on behalf of United Textile Workers of America, AFL-CIO,
or any other labor organization.
(c) Threatening its employees with discharge if they engage in
union activities and/or other concerted activities.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Textile Workers of
America, AFL-CIO, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining for
other mutual aid or protection, and to refrain from any or all such
activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a con-
dition of employment, as authorized by Section 8 (a) (3) of the Act.
2. Take the following affirmative action which it is found will
effectuate the policies of the Act :
(a) Instruct all of its employees that assaults on union organizers
engaged in a lawful and peaceful distribution of leaflets on behalf of
the United Textile Workers of America, AFL-CIO, or any other
labor organization, will not be permitted on or from the Respondent's
property at any time, and that it will take effective action, when
required, to enforce these instructions.
(b) Offer to Faye Taylor immediate and full reinstatement to her
former or substantially equivalent position without prejudice to her
seniority or other rights and privileges.
(c) Make whole Faye Taylor in the manner set forth in the Inter-
mediate.Report in the section entitled "The Remedy" for any loss of
pay she may have suffered by reason of the Respondent's discrimina-
tion against her.
MARTEL MILLS CORPORATION 623
(d) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-se-
curity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of back pay due and
the rights of reinstatement under the terms of this Order.
(e) Post at its plant in Asheville, North Carolina, copies of the
notice attached hereto marked "Appendix." 4 Copies of said notice
to be furnished by the Regional Director for the Eleventh Region,
shall, after being duly signed by the Respondent's representatives, be
posted by the Company immediately after receipt thereof, and be
maintained by it for sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to its employees are
customarily posted. Reasonable steps shall be taken by the Company
to insure that such notices are not altered, defaced, or covered by any
other material.
(f) Notify the Regional Director for the Eleventh Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent violated Section 8 (a) (3) of the Act by its discharge
of Gibson, shall be, and it hereby is, dismissed.
4 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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 employees that :
WE WILL offer to Faye Taylor immediate and full reinstatement
to her former or equivalent position without prejudice to her
seniority and other rights and privileges, and we will make whole
Faye Taylor for any loss of pay suffered as a result of the dis-
crimination against her.
WE WILL NOT discourage membership in United Textile Workers
of America, AFL-CIO, or in any other labor organization of our
employees, by discriminatorily discharging any of our employees,
or in any other manner discriminating in regard to their hire and
tenure of employment or any term or condition of employment.
WE WILL NOT authorize, ratify, or induce employee assaults
upon union organizers engaged in lawful and peaceful distribution
of leaflets on behalf of United Textile Workers of America,
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AFL-CIO, or any other labor organization, in a manner consti-
tuting interference, restraint, or coercion in violation of Section
8 (a) (1) of the Act.
WE WIL NOT threaten our employees with discharge if they
engage in union activities or other concerted activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organiza-
tion, to form labor organizations, to join or assist the above-
named labor organization, or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to
refrain from any or all of such activities except to the extent that
such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment as authorized
in Section 8 (a) (3) of the National Labor Relations Act.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of the above-named Union or any
other labor organization. We will not discriminate in regard to their
hire or tenure of employment or any term or condition of employment
because of their membership in or activity on behalf of any such labor
organization.
MARTEL MILLS CORPORATION,
Employer.
------------------------Dated---------------- By-------------
( Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges duly filed on February 13, 1956, and amended on May 2, 1956, by
United Textile Workers of America, AFL-CIO, herein called the Union, the Gen-
eral Counsel of the National Labor Relations Board, herein called, respectively,
the General Counsel and the Board, through the Regional Director for the Eleventh
Region, issued a complaint on May 4, 1956 , against Martel Mills Corporation,
herein called interchangeably the Respondent and the Company, alleging that the
Respondent had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 ( a) (3) and ( 1) and Section 2 (6) and
(7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the
Act. Copies of the complaint, the charges, and notice of hearing were duly served
upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance that
Respondent acquiesced in assaults on union representatives; interrogated and threat-
ened its employees concerning their union activities ; and discharged Faye D. Taylor
and Donie E. Gibson because of their union activities. The respondent filed its an-
swer denying the material allegations of the complaint and averring as an affirmative
defense that the alleged discriminatees were discharged for good cause.
Pursuant to proper notice given , a hearing was held on the issues framed by the
pleadings in Asheville, North Carolina, on June 4, 5, and 6. 1956, before Henry S.
Salim, the duly designated Trial Examiner . All parties were represented by counsel,
MARTEL MILLS CORPORATION 625
and were afforded full opportunity to be heard , to examine and cross-examine wit-
nesses, to introduce relevant evidence , to argue orally upon the record , and to file
briefs. Following the hearing , briefs were filed by the General Counsel and the
Respondent and have been carefully considered.
Upon the entire record in this case , including the briefs filed by the parties and
citations of cases alleged to be dispositive of the issues in this case , and from ob-
servation of the demeanor of the witnesses while testifying , the Trial Examiner makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
It is conceded that Respondent , a Delaware corporation , engaged in the manu-
facture of textile products , and maintaining plants in the States of North Carolina
and South Carolina, manufactured , sold, and shipped finished products from its
Asheville plant, during the year 1955 , in an amount valued in excess of $1,000,000
to customers located outside the State of North Carolina. It is found , therefore,
that the Respondent , Martel Mills Corporation , is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act, and that it will effectuate the purposes
and policies of the Act to assert jurisdiction in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
United Textile Workers of America , AFL-CIO, is a labor organization within
the meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Issues
The important questions for determination in this proceeding are whether the
Company condoned the actions of its employees in hurling eggs at union organizers
who were distributing union handbills on and near the plant's premises , and inter-
rogated and threatened employees concerning their union activities ; and whether
the discharge of two of its employees resulted from their union activities, as the
General Counsel claims, or for inefficiency and infractions of company rules, as con-
tended by the Respondent.
A. The egg-hurling incident
The Union began an organizational drive in the summer of 1955, to recruit mem-
bers from among the employees of the Respondent , Martel Mills Corporation, at its
Asheville, North Carolina, plant. During the course of the organizational drive,
union membership application cards were both personally distributed and mailed
to some of the approximately 650 employees.
Anne Taylor, an organizer for the Union, but who is not employed by the Re-
spondent , distributed union literature at Respondent 's plant in the latter part of
August 1955 and on November 22 and 29, 1955. On these three occasions, she
drove to Respondent 's Asheville plant and proceeded to distribute union literature to
Respondent's employees as they were either reporting fur or leaving work.
On November 22 she drove to Respondent's plant at approximately 2 p. m.,
parked her car near the mill alongside the edge of the public highway which runs
past the plant, and met other union organizers i there for the purpose of distributing
union literature to Respondent's employees as they entered and left the plant en-
trances. Two of the union organizers , Barbara Anderson and Joretta Ball, sta-
tioned themselves at the plant's main entrance gate. Taylor and another union or-
ganizer by the name of John Jervis stationed themselves near a lot on company
property where the employees parked their automobiles? As employees entered and
left this parking lot, Taylor and Jervis handed them these union leaflets.
As they were doing this , some men who were leaning out of a window of the
plant began "to heckle" them and told them to leave. Immediately thereafter,
Taylor testified , a person by the name of Morgan came out of the plant , walked to
1 None of the union organizers who distributed leaflets that day were employees of Re-
spondent . In addition to Jervis , Ball, and Anderson , there were a Mrs. Vess, Mrs. Bailey,
and "several others."
2 It is approximately "two short city blocks" from where Taylor parked her car to where
she distributed leaflets.
450553-58-vol . 118-41
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where Taylor and Jervis were standing , and addressing himself to Jervis , told him
"to get away from there 3 and if he was there at 3 : 00 o'clock, they were going to come
out and mop the highway up with him."
This same man who had come out of the plant grabbed a circular from Jervis'
hand and tore it up. When he attempted to take all the leaflets that Jervis was
holding in his hand, Taylor took them from Jervis, and said they belonged to her,
whereupon this person identified by Taylor as a "Mr. Morgan" said to Taylor:
"Don't say anything to me. You are a woman and I can't fight you. You get
the H- away from here. If you are here at 3:00 o'clock, we are going to mop
the highway with you." Whereupon Morgan left, returned to the plant, and went
inside. Jervis then left Taylor in order to telephone for "police protection."
As Taylor, in the absence of Jervis, continued to hand the union leaflets to em-
ployees who were reporting for the second shift, which begins at 3 p. in., an
unidentified woman emerged from the plant and brandished a board at Taylor and
shouted, "Get away, you buzzard. We don't want you here." Standing near this
unidentified woman, according to Taylor, was a supervisor of Respondent's whom
Taylor identified as Wade Hughes, overseer of the weaving department.4 Hughes
denied this.
As Taylor continued to distribute the union literature near the Company's parking
lot, an egg was hurled from inside the Company's premises . Taylor testified that
as she turned in the direction from which the egg came she saw the area inside the
fence which surrounds the Respondent's plant "full of women pitching eggs at
me." 5 Hughes, she testified, was at that time standing in the open doorway of the
plant at the stoop.6 "I dodged eggs for, I would say, five minutes and backed
away down the highway."
Taylor's testimony continues as follows:
The barrage slacked up and I turned and walked a few feet back until I got
in front of the ladies in the yard. There was a fence between us 7 and I
asked them what I had done to them and they says "nothing, but we don't want
you out here. We aren 't going to lose our jobs on account of a union, now,
get going."
Taylor continued on down the edge of the highway toward her parked car to a
point where Barbara Anderson and Joretta Ball were distributing union literature
at the gate leading into the main entrance of the plant . As she stopped to speak
to them, Taylor testified, "The eggs were coming thick and fast [from] inside the
plant yard, inside the fence, from the group of girls, that came down the highway
as I came down the highway. I mean they came down inside the fence as I walked
outside the fence , still throwing their eggs. . . . The eggs were still falling and
by that time our leaflets were covered with eggs. We were getting fairly messed
up, too, so we receded back down the highway . . . to where our cars were
parked." She testified, and this was corroborated by Barbara Anderson, that as she
prepared to get into her automobile to drive away, Wade Hughes, Respondent's
supervisor, was seen standing some distance behind the fence on the plant grounds
at a point opposite where her car was parked on the shoulder of the highway.
Hughes admits he was there at that time but claimed that he merely stopped for
2 or 3 minutes en route from one building to another . Hughes testified that about
2:45 p. in. he was standing about 125 to 150 feet from the highway, on the com-
pany grounds approximately opposite to where the union representatives had parked
their automobiles on the edge of the highway. There was a "commotion," he
testified , and "approximately 150 people were in and around in the area from there
into the highway, at the change of shifts." He stated that he was "not positive
[he] saw anyone throw anything " nor was he "positive it was eggs." He also
testified that at that time and place he did not recognize any employees from his
department or any of the other departments in the plant.
8 It appears that part of the time Taylor and Jervis stationed themselves on the edge of
the highway and part of the time they walked a short distance onto the parking lot which
was adjacent to the highway. Taylor, on cross-examination, testified that "[she] stayed
around the parking lot. I went a few feet over in [the] parking lot . . . ten or twelve
feet. . .
4It was stipulated that Hughes is a supervisor within the meaning of Section 2 (11)
of the Act.
5 She estimated there were approximately 30 women.
9 She testi fied that Hughes "stood in that door and stared at me for quite some time.
7 Between the highway and the plant , there is a high wire fence which surrounds the
plant's premises.
MARTEL MILLS CORPORATION 627
As the union organizers reassembled and entered their cars at approximately 3
p. m., preparatory to leaving the vicinity of the plant, some people came out from
behind the plant's fence onto the highway and continued to throw eggs at them
as they drove away, Taylor testified.8
Barbara Anderson, who also was distributing leaflets that same day, testified to
substantially the same effect as Taylor. In addition, she testified that while she and
Joretta Ball were stationed at the main gate, and shortly after they began to hand
out leaflets, Wade Hughes came out of the plant and asked them what they were
distributing. She told him, handed him a leaflet, and he then returned to the
plant. Hughes denied this.
Shortly thereafter, Anderson testified, "People started gathering around the doors
and windows and some people tried to squirt water out of the window [of the
plant] on us."
On November 22, Faye Taylor, who was then employed by the Respondent
Company, arrived at the plant at approximately 2:30 p. m., in order to begin her
shift at 3 p. m. As she walked through the spinning department, she was surprised,
she testified, to see that the machines were not operating and that none of the
employees were at their machines. This was unusual, Taylor testified, as the
Company had a rule that all operators must remain at their machines until the
plant lights flash on and off indicating the end of the 7 a. m. to 3 p. m. shift.9
Taylor walked on through the plant to the "cardroom" where she saw R. C. Rice,
a supervisor of the spinning department,1° looking out of a window which faced
onto the highway. She then went to the window to ascertain what Rice was looking
at and saw plant employees hurling eggs at the union people who had been dis-
tributing leaflets. Her testimony continues as follows:
... Mr. Rice was laughing, and he said, "Boy, them girls sure did get their
coats ruined," said, "the eggs is running off of them."
Robert Revis, who worked in the weaving department of the Company for 12
years, until he became physically incapacitated in April 1956, and whose overseer
is Wade Hughes, testified that at approximately 2:30 p. m., on November 22, he
saw plant employees throwing eggs at the union representatives. He also testified
he saw Hughes, who stood about 15 feet •away from those employees who were
throwing the eggs, urging them on and that he heard Hughes say to the employees,
"pour it to 'em." 11 Revis also testified that he later went into one of the plant
buildings and that "Mr. Hughes come and shook hands with me and said, `What
did they do? Did you run them off?' and I said, `No, they are still in the car.' "
Revis also testified that he first saw Hughes in the vicinity of where the egg-throwing
incident occurred at about 2:30 p. m., and that Hughes remained there until
approximately 2:55 p. m.
Hughes, Respondent's supervisor, denied that he was present at any time between
2 p. m. and 3 p. m. on that date when a woman was alleged to have brandished
a board at the union organizers. He denied, also, that he received any union
literature from anyone on that day or that he was near the spinning department at
that time. He testified that he was outside the building on his way from one part
of the weaving department to another part of that department, which was housed
8 Donie Gibson , who was employed by Respondent on November 22, testified she saw
employees "George Buckner , Frances Crawford, and about 20 others " participate in this
egg-throwing episode.
8 This was corroborated by another witness . Ethel Kress , who has been employed by the
Respondent since 1946 . She testified that when she arrived at the plant at approximately
2 : 30 p . m., to report for work on the shift beginning at 3 p. in ., the machines were not
operating.
10 It was stipulated that Rice is a supervisor of Respondent within the meaning of Section
2 (11) of the Act.
" The transcript of Revis ' testimony reads that Hughes told the employees "to report to
him." The General Counsel moved that the transcript be corrected to read "to pour it to
'em" rather than " to report to him ." In support of this motion , the General Counsel at-
tached an affidavit from Revis taken subsequent to the hearing , and an affidavit given by
Revis to a Board investigator prior to the hearing . Both these affidavits of Revis attest
that lie heard Hughes say, "pour it to 'em ." On an order to show cause why the transcript
should not be corrected as proposed by the General Counsel , the Respondent ' s counsel op-
posed said proposed correction and submitted in support of their motion affidavits from
the official reporter and one from Wade Hughes denying he ever made such a statement.
The motion to correct the transcript was granted by the Trial Examiner by an order dated
September 26, 1956, so that it now reads , " to pour it to 'em."
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in another building some distance away from the highway . Moreover, he categori-
cally denied that he made any of the statements concerning the egg throwing
attributed to him by employee Revis, particularly the statement "pour it to 'em."
Credibility
The witnesses for the General Counsel who testified with respect to the egg-
throwing incident appeared to be sincere and truthful witnesses . Their testimony
in conjunction with the entire background of evidence adduced in this proceeding
merits belief . Another practical consideration which cannot be overlooked in
crediting the version of the egg -throwing incident as told by Revis is the fact
that Revis, who not only placed Hughes at the scene but also testified that Hughes
urged on the participants , is still an employee of the Respondent , although he was
hospitalized at the time of the hearing . As such, Revis, it is reasonable to assume,
will, when he recovers from his illness , reapply for his job, and continue to depend
upon the Respondent for his livelihood . This practical consideration coupled with
the normal workings of human nature has led the trier of these facts to place
considerable credence upon Revis' testimony with respect to the egg -throwing inci-
dent and Hughes' part in it.
Conclusions
The facts set forth above establish , as the complaint alleges, that Respondent,
by its agent , Wade Hughes, a supervisor within the meaning of Section 2 (11)
of the Act , acquiesced in, aided and abetted, and encouraged the hurling of eggs
on November 22 by its employees at union representatives in and about its Asheville
plant.
The right of the nonemployee union organizers to distribute literature adjacent
to Respondent 's premises 12 as distinguished from distribution on the premises has
been settled.13 In the present case, Respondent has raised no question as to the
method of distribution or the conduct of the union representatives making the
distribution . The evidence clearly establishes and it is found that the distribution
by the Union was peaceful and violated no rules of Respondent . Moreover, it is
clear that the assault was not provoked by the union organizers and that the em-
ployees deliberately attacked them by hurling eggs at them.
Hughes revealed his hostility toward the Union and deliberately encouraged
attacks on its representatives by him telling employees "to pour it to 'em" and by
his shaking hands with Revis , after the union organizers had left, and inquiring,
" . Did you run them off?" In addition , there is Hughes ' failure to interfere
with the employees hurling eggs at the union organizers despite his presence during
the incident . Moreover , Overseer Rice witnessed these events from a plant window
and did nothing to prevent it. His laughing at what occurred and his remark,
"Boy, them girls sure did get their coats ruined" is also highly significant.
The events on November 22, during which Respondent 's supervisors not only
permitted employees to leave the plant before their .shift was over, but also imposed
no penalties on them for the time spent away from their machines participating in
this incident , are further facts supporting the allegations of the complaint. Not
only did the Respondent not condemn these activities or repudiate them but it
did not even reprimand its employees or notify them to desist from similar activities
in and about its premises in the future . In addition , it does not appear that any
deductions were ever made from the compensation of any of those employees who
.abandoned their machines and work and participated in these activities . It appears
that all the employees who participated in the egg throwing received their full
wages for the day. Based upon these facts , it is concluded and found that such
'treatment of its employees by the Respondent is further evidence of Respondent's
ratification and condonation of these antiunion acts of its employees.14
In addition , the Respondent made no effort to investigate the egg-throwing inci-
dent to discover the identity of the leaders and participants therein. The Re-
spondent , by deliberately refusing to learn who these employees were, cannot assert
its inaction did not constitute ratification of its employees ' prior activities because
of Respondent 's lack of knowledge of such activity by them.
Moreover , it is believed that the Respondent could have stopped the egg throwing
if it had so desired.15 Supervisor Hughes was present and Overseer Rice witnessed
12 N. L . R. B, V. LeTournean Company of Georgia , 324 U . S. 793.
13 N. L . R. B. v. The Babcock & Wilcox Company , 351 U . S. 105.
14 N. L . it. B. v. American Thread Company , 204 F. 2d 169, 170-171 (C. A. 5).
15 Although it is not clear from the record , it appears that the employees might have
.obtained the eggs from a lunchroom on the company premises.
MARTEL MILLS CORPORATION 629
the incident but they not only made no attempt to stop it but even encouraged it
by their remarks and their tolerant and exulting attitude.'s Hughes and Rice were
responsible for maintaining an uninterrupted output of the plant's product so that
when they did nothing to prevent the employees from leaving their machines on
November 22 between 2 and 3 p. m., or to stop those of the employees who were
hurling eggs at the union organizers, such actions must be imputed to the Respondent.
By the antiunion conduct of its employees who participated in the egg throwing,
as well as the urgings of Hughes and the tacit approval of Rice, supervisory em-
ployees for whose conduct Respondent is responsible, the Respondent furnished
implied authority for employee participation thus fixing the liability of the Corporate
Respondent. Moreover, the Corporate Respondent must be held responsible be-
cause by its later acts it ratified and showed its approval of these acts by its failure
to inquire into, investigate, or take disciplinary action against the participating indi-
viduals. The totality of this antiunion conduct, in conjunction with Respondent's
attitude toward the events of November 22, constituted interference in, restraint, and
coercion of the Respondent's employees in the exercise of rights guaranteed them
in Section 7 of the Act.
With respect to the employees' statutory rights under Section 7 of the Act, the
conduct of the employees in hurling eggs at the Union's representatives in the
presence of other employees who did not participate in this incident could have a
coercive effect on the nonparticipating employees who had the statutory right to
engage in union activities. This is so because the nonparticipating employees could
reasonably regard this incident as indicative of the Company's attitude toward
those who were sympathetic to unionism if they should support the Union. The
circumstances surrounding the hurling of the eggs by the employees reasonably
indicated to the nonparticipating employees who witnessed the incident that such
actions were condoned by the Respondent Company. Such circumstances could
very well vicariously coerce those employees who witnessed but did not participate
in throwing eggs at the union organizers. For all the reasons hereinabove indicated,
it is found that Respondent violated Section 8 (a) (1) of the Act.17
B. Alleged threats and interrogations
The night after the egg-throwing incident, Faye Taylor, who was then employed
by the Respondent Company, had a conversation at her machine with Arthur Davis,
who was the overseer of her shift.'s Taylor testified as follows:
[Arthur Davis] took hold of my shoulder and come to shaking his finger in
my face, said "if you don't quit running around this mill and carrying tales to
these spinners, I am going to run you out of here." He said, "if you don't like
the way we operate down here, why, in the damn Hell don't you quit and get
the Hell out of here." He says, "We get telephone calls every day about you right
down here from people right down here in this mill about what you say and
what you do about the Union and I'm going to have you run off if it's the
last thing I do." He said, "I have already kept two spinners from coming over
here and beating the . . . hell out of you, . . . I ain't going to have you
running around this mill, . stay here and I mean it. If I see you speaking
to anybody here tonight, I will run you out tonight."
"The question of organization by the employees . is the exclusive business and
concern of the employees. It is the mandate of the statute that the employer shall
not intrude himself into the picture. The slightest interference, intimidation, or
coercion by the employer of the employees in the rights guaranteed to the employees
by the statute constitutes an unfair labor practice in violation of Section 8 (a) (1)
of the Act." 19 The test for determining whether conduct constitutes an unfair
labor practice under Section 8 (a) (1) and within the meaning of Section 7 of the
Act is whether such conduct is likely to, or tends to produce a coercive effect,
regardless of the specific motivation of the conduct.'°
See N. L. R. B. V, Dorsey Trailers, Inc., 179 F. 2d 589, 593 (C. A. 5).
Drexel Furniture Company, 48 NLRB 083. See Sunset Line and Twine Company, 79
NLRB 1487, at 1507-1509, which is one of the leading decisions on the question of agency
under the Act. See also Section 2 (13) of the Act.
Is It was stipulated that Davis was a supervisor within the meaning of Section 2 (11) of
the Act.
10 N. L. R. B. v. William Davies Co., 135 F. 2d 179, 181 (C. A. 7).
20 See N. L. R. B. v. Illinois Toot Works, 153 F. 2d 811, 814 (C. A. 7) ; Radio Officers'
Union V. N. L. R. B., 347 U. S. 17, 44, and 45.
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, it is found in applying these principles to the above-credited testimony,
and in the context of the other unfair labor practices found herein, that Respondent,
through its supervisor, Davis, violated Section 8 (a) (1) of the Act by threatening
Taylor with discharge if she persisted in her union activities.
Shortly after the above incident, Davis, according to Faye Taylor, asked her who
had instigated "all this union business" at the plant. To this question, Taylor testi-
fied, she replied: "Well, I did, I get accused of everything, and he just laughed and
went on over and there wasn't any more said." Inasmuch as this alleged violation
of the Act is cumulative of the other conduct described above and as the same
kind of restraining order would issue against the Respondent whether it was predicated
on one or more violations of this type, no good purpose could be served in con-
sidering this incident separately with a view of determining whether it constitutes a
violation. Therefore, no finding is made with respect to this alleged violation of the
Act as it would not enlarge the scope of the Order herein. As the Board recently
stated:
It would seem a sound principle of administration and judicature to avoid
accumulating adverse findings, where to do so would not add to the obligation
which independently must issue.21
The allegation in the complaint that Arthur J. Davis threatened that the plant
would close down if the Union were successful in its organizational campaign is
evidently based on the alleged statement by Arthur J. Davis, a supervisor, to Faye
Taylor that "old man Boyd said that he would not let a union in any of the mills,
he would close them down first." As the record does not identify Boyd nor disclose
his relationship, if any, to Davis, it is found that the requisite burden of proof has
not been sustained and it will therefore, be recommended that this allegation of the
complaint be dismissed.
C. The discharge of Faye Taylor
Faye Taylor first went to work for the Respondent Company in 1941. She
worked intermittently from that time up until June 1953, when she returned as a
spare hand. She worked in that capacity until February 1955, when she was assigned
to a full-time job as a spinner, working steadily until her discharge on January 2,
1956 .22
Taylor was the leader among the employees of the union movement in Respond-
ent's plant. In August 1955, when she was one of the first, if not the first employee
to join the Union, she met with various union officials with a view to organizing a
union at the Asheville plant of the Respondent Company. She mailed and distributed
between August 10 and 29, 1955, approximately 200 union application cards to
employees. During working hours, various employees would request union cards
from her or they would telephone her at her home and request that cards be mailed
to them.
On December 14, 1955, 3 weeks after Davis, her supervisor, had threatened her
with discharge if she persisted in her union activities, he came over to her machine
and told her that he was dissatisfied with the quality of her work. She explained
that her machine was not operating properly. Taylor testified (and this was cor-
roborated by Kress and also by Clara Chapman, who operated the same machine
on the following shift) that those employees on the other shifts who operated this
same machine had trouble with it 23
On this same day, December 14, Taylor testified that on her way to work,
she told another employee, Ethel Kress, who works on the same shift, that she
. 21 International Union of Operating Engineers, Local 12 (Crook Company), 115 NLRB
23. See also Linn Mills Company, 116 NLRB 96, footnote 7.
22 She worked from 1941 to 1944 at which time she left to undergo an operation. She
returned in 1948 and worked until 1950 when she underwent another operation. She mar-
ried in 1950 and, upon the death of her husband in 1953, returned to work with Respond-
ent Company. From October 1953 to May 1954, she was unable to work due to illness.
Upon her return in May 1954, she worked as a spare hand until February 1955, when she
began to work full time until her discharge on January 2, 1956.
23 The testimony of Clara Chapman shows that Davis was aware before December 14 that
the particular spinning machine she and Taylor operated on the second and third shifts, re-
spectively, was not operating properly. Chapman testified that Deweese, overseer of the
third shift, also knew about the defective condition of the machine. She also testified
that when she falls behind in her work Deweese and other coworkers have helped her out
when her machine "runs extremely bad."
MARTEL MILLS CORPORATION 631
was not feeling well. Kress, about 3 hours after the shift had begun, left her
machine to ascertain how Taylor was feeling and whether Taylor required any
assistance on her machine. Before Kress was able to speak to Taylor, Davis saw
her, and refused to allow her to help Taylor and ordered her back to her machine 24
Taylor testified that she remonstrated with Davis, reminding him that her machine
did not operate properly and that in the past not only had he permitted other
employees to help her but he himself had, on occasions, done so. Taylor testified,
and this was corroborated by both Kress and Chapman, that it had always been
the custom when one employee was ahead in her work to help any other employee
who might have fallen behind in her work. Davis, however, was adamant, and
would not permit Kress to help Taylor. Shortly thereafter, Taylor fainted. She
evidently fell heavily when she fainted as she complained of pain in the area of her
ribs upon being revived.
The following day she came to the office of D. S. Barry, superintendent of the
mill, and told him about her accident the previous night. He told her to see a
physician in order that the Company would have a report of her condition. She
was examined by a physician the same day who informed her that "her eighth rib
was pulled loose." The doctor taped this area of her body and cautioned her not
to work. The doctor gave her "a slip of paper" which she gave to Ethel Kress,
who worked with her at the mill, and asked Kress to give the "slip of paper" 25
to her overseer, Arthur Davis, and to advise him that she was unable to work and
did not know when she would be physically able to return to work. Kress corrob-
orated Taylor and testified that Taylor asked her to tell Davis that "she wouldn't
be able to work for two or three weeks and that she would be back when she
got able." Kress testified that this message was delivered to Davis the next day.
On December 20, the physician removed the tape from her body. On December
22, she contracted virus pneumonia and remained in bed until December 28. On
the following day her physician advised her that she could return to work the
following week. She then telephoned Davis and informed him what her doctor
had told her. Taylor's testimony of her conversation with Davis continues as
follows:
I called [Davis] up to see if I had a job, and he said, "I don't know whether
you have or not." He said, "I'm afraid if you come back to work, there is
going to be some trouble," said, "maybe you better go see Mr. Rice," .
The following Monday, that was January 2, 1956, I went down to see Mr. Rice
in company with Ethel Kress and my brother . . . and I went over to him
and he just reached in his pocket and handed me a slip of paper [which read]
"Give Faye Taylor a layoff slip."
Taylor on cross-examination testified that when she spoke to Rice on January 2,
1956, and because of what Davis had told her with respect to her undetermined job
status, she asked Rice if she still had a job. The record is not clear what Rice's
reply was to her question except that- he handed her an "order" for a "layoff slip"
which he had written up before he spoke to her.
Rice's testimony with respect to this incident is as follows:
Q. Now, the next time you saw [Taylorr] then was when she came in on the
2d of January?-A. Yes, sir.
Q. And you knew then she was going to be discharged, didn't you?-A. Yes.
Q. And when did you find that out?.-A. That day. Well, I decided to
discharge her that day. She hadn't come back to work.
=a Kress testified that when she drove in to work with Taylor on December 14, she
knew Taylor was not feeling well . She left her machine at 6 p . m. to ascertain how
Taylor was , when she encountered Davis . Kress' testimony follows :
Taylor was working . . . . Mr. Davis said , "You go back upstairs or I am going to
fire you ," and I said , "Art, why can ' t I help her a little ? She's sick ." He said, "I
mean for you to go back upstairs or I am going to fire you." He said , "I will fire you
right now if you don't go back upstairs ." And I said, "Well if you are going to stop
this helping , why not stop all, not just me , but stop them all; why not stop everybody
from helping ?" He said, "I mean for you to go back upstairs don't come back no
more." And so I went . . . upstairs . . . . We all helped each other when anybody
would be in a mess that way. . . . They never stopped it . [ Mr. Davis never told me
not to help anyone before . I went back to m.y job upstairs and] they came after me
[ and told me ] that she had fainted . . . and I went down there to call her brother.
15 All that was on this "slip of paper" was the physician 's name.
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Who did you talk with about discharging her?-A. I didn't talk to any-
body about it 26
Q. Did not?-A. No.
Q. You just decided on your own?-A. Yes, sir.
Q. And didn't you talk with Mr. Davis about it?-A. No.
Q. Didn't talk with him about it?-A. No.
Q. Wouldn't you customarily talk with the immediate supervisor before you
would discharge somebody, Mr. Rice?-A. Not if I don't-if I have a reason
to lay them off, I don't.
TRIAL EXAMINER: When you say, "lay them off" do you mean fire them?
A. Yes, sir.
Q. (By Mr. Cohn.) You didn't attempt to get in touch with Mrs. Taylor
during the time that she was absent there from the plant, did you?-A. No,
sir, because she didn't try to get in touch with me because she come by the
mill several times and I figured she was quit.
Q. She never did tell you she was going to quit?-A. She never did tell
me she was coming back to work.
Q. You had the doctor's slip?-A. Just had the name, that's all.
Q. You didn't contact him, did you?-A. No, sir.
Q. When she came in, you didn't ask her if she had quit, did you?-A. No.
Q. You had already decided to discharge her then?-A. That is right.
Q. You saw her driving the car, you said?-A. Yes, sir.
Q. Did it occur to you that she might be able to drive a car and not be able
to do the work down there?-A. Well, she could have, but she could have come
down and told me 27
Q. You didn't ask her about that when she came in on the 2d, did you?-
A. No.
It is against this background that Respondent's reasons for the termination of
Taylor's employment are considered. Respondent's defense to the charge it dis-
criminatorily discharged Taylor because of her union activities is twofold: first, that
she violated a company rule when she left her job without notifying Respondent and,
second, her claim of inability to work due to illness is belied by her continuing to
drive her car during her alleged illness.
In order to impeach Taylor's credibility, Respondent introduced into evidence
certified copies of convictions occurring in 1945 and 1946 for operating a public
nuisance and cruelty to animals. Other arrests, as distinguished from convictions,
were held inadmissible, to which ruling Respondent took exception. Testimony
with respect to arrests as distinguished from convictions is inadmissible to impeach
a witness.28 Nor are convictions for crimes not involving moral turpitude admissible.
Only convictions for felonies or misdemeanors amounting to crimen falsi are admis-
sible.29
Apart from what weight should be ascribed to these convictions in resolving the
conflicting versions of what transpired, the Trial Examiner after observing the wit-
nesses, analyzing the record and inferences to be drawn therefrom, and reconciling
where possible the conflicting evidence, concludes that the testimony of Taylor is
reliable because it is consistent with certain undisputed, uncontradicted, and demon-
20 Barry, the plant superintendent, testified that he conferred with Rice and Davis about
firing Taylor on the same day she was discharged. Davis' testimony on cross-examination
with respect to whether Rice consults with him on discharges of employees under Davis'
immediate supervision (which Taylor was) is contradictory and equivocal.
21 Taylor testified that her rib injury permitted her to drive her automobile but that the
tape on her body prevented her from raising her arms "up high" which she had to do in
operating her spinning machine at the plant.
28 N. L. R. B. v. Laister Kauffmann Aircraft Corp., 144 F. 2d 9, 15 (C. A. 8) enfg. 52
NLRB 261.
20 N. L. R. B. V. Baldwin Locomotive Works, 128 F. 2d 39, 46 (C. A. 3). See also Efco
Manufacturing Inc., 111 NLRB 1032, 1034, where evidence of witness' willful violation
of fishing law held to create no adverse credibility inference ; Goodyear Tire & Rubber
Company of Alabama, 21 NLRB 306, 311-312 (assault and battery) ; Tulsa Boiler and
Machinery Company, 23 NLRB 846, footnote 10 (conviction for felony occurring in 1925
has no relevancy to veracity of witness in unfair labor practice proceeding in 1940) ; Borden
Mills, Inc., 13 NLRB 459; Quality Art Novelty Co., Inc., 20 NLRB 817, 823; American
Laundry Machinery Company, 45 NLRB 355, 358.
MARTEL MILLS CORPORATION 633
strable facts in this case. On the other hand, the testimony of Rice and Davis was
evasive and in a few instances implausible 30
Then, too, considerable credence has been given. to the testimony of Ethel Kress,
who has been employed by Respondent since 1946 and who corroborated certain
vital aspects of Taylor's testimony.31 Kress impressed the Trial Examiner as a
credible witness. She gave the impression of being scrupulously objective and honest
in her testimony. Moreover, the events narrated by both Taylor and Kress follow
a logical sequence which are consistent with certain attendant circumstances in this
case. It might be well, therefore, to examine these attendant circumstances.
There is nothing in the record which shows that the Respondent ever complained
about the work habits of Taylor prior to August 1955 32 when, significantly, Taylor
began her union activities, and Respondent, not long after in December 1955, began
to criticize her work. Moreover, in resolving whether Taylor's discharge was for
cause or was discriminatorily motivated, account must be taken of the summary and
precipitate manner in which Taylor was discharged, particularly when it is considered
that she notified Respondent that she would be unable to work due to her injury
and of which Respondent was aware, but failed to even investigate. Also, she was
discharged by Rice, assertedly for failure to report for work, without notifying Davis,
her immediate supervior. And this, even though Barry, the plant superintendent,
ordered her to consult a physician 33 Furthermore, no effort was made to ascertain
from the physician, whose name Rice knew, whether Taylor was justified in her
contention that she was physically unable to work. Nevertheless, she was suddenly
dicharged with no warning that disciplinary action was imminent.
It will be recalled that Respondent originally asserted at the hearing that Taylor
was discharged because she left her job without notifying them and that her claim
she was too ill to work was not borne out by her continuing to drive her automobile
during her alleged illness. However, when :Davis, her supervisor, was asked what
occurred on December 14, 1955, the last day Taylor worked, he testified that he
had told her the quality of her work would have to improve if she wanted to retain
her job. This variation of the grounds previously stated for Taylor's discharge,
namely, her absence from work without notifying Respondent, contrary to its posted
notice, to a defense based upon a deterioration in the quality of her work, casts
doubt upon the meritoriousness of the Respondent's defense 34
Shifting reasons for an employee's discharge are indicative of a discriminatory
intent.35 The failure to give a reason, or giving evasive or contradictory reasons
for a discharge, may, of course, be considered in determining the real motive for
the discharge,36 and the employer's inconsistent explanations of a discharge are a
3° Davis' testimony that Rice did not tell him the reason why Taylor, who worked under
Davis' immediate supervision, was fired, is incredible.
31 Kress testified that on December 12, while at work, Davis told her she would have to
make different arrangements to be driven to work by someone other than Taylor because
"I'm going to have to lay her off."
33 In February 1955 she was promoted from a spare hand to regular full-time work.
33 Barry testified Taylor came to his office about 10 days after her accident and she advised
him she "wouldn't be able to work." Barry then telephoned her doctor who informed him
"she had bruised her hip." Nevertheless, he testified that he "o. k'd her being fired" ap-
proximately 9 days after she so notified him.
34 The Respondent justifies Taylor's discharge for still another reason, namely, infraction
of a company rule that it had posted on its bulletin board at the plant and which stated :
If any employee is absent from work without permission or reasonable excuse we will
assume that he or she has quit.
Davis, Respondent's supervisor, testified that this notice has been posted on the bulletin
board since 1949. Fox, Respondent's witness, who has worked for the Company since 1936,
testified the notice has been posted "for several years." Payne, Respondent's witness, who
has been employed by the Company since 1945, inconsistently testified on direct examination
that the notice has been on the bulletin board "over a year," and on cross-examination she
testified that it was posted "since about '49." Taylor testified, however, that the notice was
first posted "when [she] was out sick." Although it is not necessary to decide the
issue, it is believed, based upon the contradictory and conflicting testimony of Respondent's
witnesses, that the notice was posted on the bulletin board sometime subsequent to the
inception of union activities at the plant.
35 Dent & Russell, Ltd., 92 NLRB 307, 320.
31 N. L. R. B. v. Condenser Corp., 128 F. 2d 67, 75 (C. A. 3).
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circumstance indicating its motivation.37 It is found, therefore, that the reasons
alleged for discharging Taylor were spurious and a pretext to screen Respondent's
discriminatory motivation.
Motivation is a subjective matter which, if found, must be found from objective
circumstances established by the record after duly considering all countervailing
testimony. One of the objective circumstances in this case is Taylor's intensive
union activities, of which Respondent knew, as evidence by Davis' threats to discharge
Taylor if she did not desist from her union activities. Another objective circum-
stance is the Company's union antipathy as evidenced by its condonation of the
employees hurling eggs at the union organizers. Another such circumstance is the
fact that employees had been permitted in the past to help one another in their work,
but when Taylor became active in the Union, Davis refused to allow Kress to aid
her, although by helping Taylor, who was ill, Kress was plainly acting in the
Respondent's interest. It is not believed that a nondiscriminatorily motivated
employer would have acted so unreasonably under such circumstances. It is much
more reasonable to infer that Taylor's union activities, toward which Respondent
was hostile, were the real reason for this attitude. Considering all these objective
factors, it is concluded there is a causal chain linking Taylor's discharge to her
union activities.
It is found, therefore, that Taylor was discriminatorily discharged and that her
discharge was motivated by her union activities and by Respondent's resentment
against the Union as independently evidenced by its threats against Taylor and its
responsibility for the egg-throwing incident, all of which was designed to discourage
union activity in violation of Section. 8 (a) (3) of the Act.
D. The discharge of Donie Gibson
Donie Gibson, who had previously worked for the Company on several occasions,
went to work for Respondent in the latter part of June 1955 as a "spare spinner."
Respondent, through its supervisors, Rice and Davis, sought her out from another
employment, and offered her a job as a spare spinner which she accepted. As a
spare spinner, she worked whenever any of the regular full-time employees were
out because of illness, vacations, or other such reasons. In September 1955, she
signed a union membership application card.
An aftermath of the egg-throwing incident, described above, was a court pro-
ceeding in which the union representatives swore out warrants against various
employees of Respondent. Among those subpenaed to testify was Gibson. Some
of her coworkers were evidently resentful of this as it appears that they believed
she would testify adversely to them, because Davis told her on December 30, 1955;
that "four or five girls, was going to beat [her] up.. . She also testified that
Davis hald told her during the same conversation that "Mr. Rice was disappointed
in me for pushing against the mill when they had come for me and given me a job."
Gibson testified that she had some -aftereffects from pneumonia which she
contracted in October 1955,38 and that she became ill on Sunday, January 1, 1956.
The following day, Monday, January 2, she testified that she was too sick to work
and she asked a Mr. Vick, a coworker with whom she was to drive to work, to
notify Davis she would not be in to work due to illness.
Gibson's testimony continues:
Later in the afternoon [Monday, January 2nd] about 6:00 or 6:30 my
mother came [to Gibson's home]. She was going to . . . a show at the City
Auditorium at 8:30. I was still laying across the bed covered up and she asked
me if I felt like going and I first said no. . . . And she suggested that maybe
stirring would help me some. I got up. . So we went to the 8:30
show. . that night I was up practically all the night . so the next day I
was still worse. I asked the landlady to call Martel Mills. She told me she did.
The following day, January 3, she called a doctor, she testified, but was unable
to obtain an appointment until the following day. On Wednesday, January 4, she
reported for work. When she arrived at the mill around 3 p. m., Gibson testified,
Davis asked her if she had seen Mr. Rice. When she told him she had not, Gibson
37 See Mooresville Mills, 99 NLRB 572, 600; Sandy Hill Iron & Brass Works, 69 NLRB
355, 377, enfd. 165 F. 2d 660 (C. A. 2) ; Lewis & Holmes Motor Freight Corporation, 63
NLRB 996, 1008.
38 Rice testified that he knew Gibson "had side-pleurisy" in October as she had a doctor's
certificate and "was off about a week. . . .
MARTEL MILLS CORPORATION 635
testified , Davis "took out a layoff slip from his shirt pocket, handed it to me.... I
looked at it . . . and he said, `That's for Monday.' " 39
Rice testified that on January 2 they were short of help so he and Davis went to
Gibson's home to ask her to come in to work. They were unable to find her nor
did she come to work the following day. Rice testified that on Tuesday, January 3,
he "learned through Ellen Fox, a spinning department employee, that she had seen
Gibson at a show the previous evening." 40 Davis corroborated Rice and also
testified that when he discharged Gibson, he told her, "that's for Monday. I said,
you was laid out Monday is the reason we gave you the layoff slip." Gibson then
saw Barry, superintendent of the plant, to request that her discharge be reconsidered,
but her effort in this regard was unsuccessful.
The General Counsel contends that Gibson was discharged because of her signing
a union membership application card, and the Respondent's resentment against her
which was based on the belief that she was going to testify on behalf of the State
in State court proceedings brought by the union representatives against those em-
ployees who were alleged to have participated in the egg-throwing incident. The
Respondent urges, however, that it discharged Gibson because she was ' seen at a
show on the evening she reported to them she was sick.
Argumentatively assuming that Gibson's presence at the show when she was
supposed to be ill was cause for her discharge, it is well settled, nevertheless, that
where a clearly unlawful reason is one of the motivating causes of a discharge which
in this case is found to be Respondent's hostility toward union sympathizers, the
coexistence of a separate valid reason, namely, her being at the show, does not
eliminate the unlawful aspect of Respondent's action.41 Moreover, it is believed
and found that the presence of Gibson at the show was not the moving cause for
Gibson's discharge but was a temporal coincidence seized on by Respondent to
justify Gibson's discharge and thereby rid :itself of a union adherent. This con-
clusion is fortified by Davis' testimony that when he gave Gibson the layoff slip, he
merely said, "That's for Monday." No mention was made at that time by Davis
that she was being discharged for attending a show when she was supposed to be
sick. It is reasonable to infer from this that her presence at the show was learned
subsequent to her discharge and was seized upon by Respondent to screen its
discriminatory motive.
This conclusion is further corroborated by the following evidence which contra-
dicts the factual validity of the reasons assigned for Gibson's discharge: (1) Her
work was satisfactory; (2) the absence of any evidence that she flagrantly or re-
peatedly absented herself from work; (3) Gibson had never been warned previously
of excessive absences or the risk of discharge; (4) when Respondent learned Gibson
attended a show, it summarily discharged her without making any effort to determine
whether she was guilty; (5) the evidence warrants the finding that there was a
striking disparity between the severity of the punishment (discharge) meted out to
Gibson and the provocation, as compared with the leniency accorded other spare
hands whose attendance records were not any better than hers and who were not
discharged under comparable circumstances, but who, perhaps, were not associated
in Respondent's mind with union activities; (6) Respondent knew of and dis-
approved of Gibson's union sympathies prior to her discharge as evidenced by Davis'
statement to her on December 30 that "Rice was disappointed in [her] for pushing
against the mill when they had come for me and given me a job," which is taken to
be an unmistakable reference to her union sympathies and Respondent's antiunion
attitude; (7) significantly, the amount of work given Gibson began to diminish
shortly after the egg-throwing incident; and (8 ) moreover, Gibson's discharge
cannot be viewed in isolation, separate and apart from Respondent's entire course of
conduct, including the egg-throwing incident and Davis' threatening Taylor with
09 Davis testified on cross-examination that Rice made out the layoff slip and told him
to give it to Gibson. At one point in his testimony, Davis states that Rice made no com-
ment when he told Davis to give Gibson the layoff slip and at another part of his testimony
he inconsistently testified that when Rice handed him Gibson's layoff slip, Rice said it was
"for being at the show."
40 When Fox was asked on direct examination about her seeing Gibson at the show, she-
testified that Rice "came over [at the mill] and be asked me if I went to the City
Auditorium that Monday night and I said, yes, and he asked me if I seed (sic) Donie Gibson
and I said yes."
41 N. L. R. B. V. Swinerton, et al ., 202 F. 2d 511 (C. A.'9) ; Kingston Cake Company, 97
NLRB 1445 at 1451. See also N. L. if. B. v. Whitin Machine Works, 204 F. 2d 883,
885 (C. A. 1) ; Wells, Inc. v. N. L. R. B., 162 F. 2d 457, 460 (C. A. 9) ; Plastic Molding
Company, 110 NLRB 2137, 2138.
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge for her union activities , all of which was to thwart unionism at the plant.
Under these circumstances , it is difficult to justify Respondent 's discharge of
Gibson , especially for such a trivial reason . As the Court of Appeals for the
District of Columbia stated: 42
Such action on the part of the employer is not natural . If the employer had
really been disturbed by the circumstances it assigned as reasons for these dis-
charges, and had no other circumstance in mind, some word of admonition,
some caution that the offending lapse be not repeated , or some opportunity for
correction of the objectionable practice , would be almost inevitable.
With the collapse of Respondent 's defense that Gibson was fired because of her
absence from work, there is no other explanation for her discharge than to conclude
that she was discharged because of manifest antiunion considerations which con-
stituted a part of Respondent 's course of conduct designed to discourage union
activity in violation of Section 8 (a) (3) of the Act 43
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth above, occurring in connection with
the operations of the Respondent , 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 thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor
practices , the Trial Examiner will recommend that it cease and desist therefrom
and take the following affirmative action designed to effectuate the policies of the
Act: (1) Offer Faye Taylor and Donie Gibson immediate and full reinstatement
to their former or substantially equivalent positions ,44 without prejudice to their
seniority or other rights and privileges ; (2) make whole Faye Taylor and Donie
Gibson for any loss of pay they may have suffered by reason of the Respondent's
unlawful discharges , by payment to each of them of a sum of money equal to the
amount each would normally have earned as wages, from the date of discharge to
the date of the Respondent 's offer of reinstatement , less net earnings during said
period ; 45 and ( 3) the Respondent shall upon request make available to the Board
payroll and other records to facilitate the checking of the amount of back pay due,
which shall be computed in accordance with the Board 's customary formula.46
Having found that the Respondent authorized, encouraged, ratified, and condoned
assaults upon union representatives and threatened Faye Taylor with discharge if
she persisted in her union activities , it will be recommended that the Respondent
cease and desist therefrom.
The unfair labor practices committed by Respondent in the instant case are such
as to indicate an attitude of opposition to the purposes of the Act generally. In
order, therefore , to make effective the interdependent guarantees of Section 7 of
the Act, thereby minimizing industrial strife, which burdens and obstructs commerce,
and thus effectuate the policies of the Act , it will be recommended that the Re-
spondent cease and desist from infringing in any manner upon the rights guaranteed
in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case , the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2 (6)
and (7) of the Act.
2. The Union is a labor organization as defined in Section 2 (5) of the Act.
3. By permitting its employees to physically assault nonemployee union organ-
izers for distributing literature in and about its premises , the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
42 E. Anthony and Sons v. N. L. R. B., 163 F. 2d 22 , 26-27.
43 See Bentley Lumber Co. v. N. L. R. B., 180 F. 2d 641 (C. A. 5).
Q4 The Chase National Bank of the City of New York, San Juan, Puerto Rico , Branch,
65 NLRB 827.
41 Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation v.. N. L. R. B.,
311 U. S. 7.
48 F. W. Woolworth Company, 90 NLRB 289.
GENERAL ELECTRIC COMPANY 637
4. By threatening Faye Taylor with discharge if she persisted in her activities on
behalf of the Union, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
5. By discharging Faye Taylor and Donie Gibson the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3)
and (1 ) of the Act.
6. By interfering with , restraining , and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
General Electric Company and International Union of Electrical,
Radio and Machine Workers, AFL-CIO, Petitioner. Case No.
3-RC-1799. July 11, 1957
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Bernard Ness, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Murdock, Rodgers, and
Bean].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
National Labor Relations Act.
2. The labor organizations named below claim to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer, within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
UE Local 310, the Intervenor, has been the bargaining representa-
tive of a unit of production and maintenance employees at the
Employer's Elmira, New York, foundry since 1940. It contends that
the national GE-UE contract, which covers all of the Employer's
operations where the UE is the certified bargaining representative
and is effective from April 2, 1956, to October 1, 1960, is a bar to this
proceeding. The petition herein was filed by IUE Local 310 to repre-
sent the Elmira, employees in the existing production and maintenance
unit. This local was originally chartered for this purpose in 1949 or
1950. It claims that a schism has occurred at the local level of the
1IJE and that it now represents a majority of the Elmira employees.
118 NLRB No. 64.