Roane Hosiery, Inc.

National Labor Relations Board - Board Decisions

Dec 15, 1969

180 N.L.R.B. 119 (N.L.R.B. 1969)

ROANE HOSIERY, INC.
Roane Hosiery , Incorporated and International
Union of District 50, UMWA. Cases 10-CA-7738
and 10-CA-7750
December 15, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On September 10, 1969, Trial Examiner Alba B.
Martin issued his Decision in the above-entitled
case, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner further found that the
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint. Thereafter,
the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts the
findings, conclusions,' and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Roane Hosiery,
Incorporated, Kingston, Tennessee, its officers,
agents, successors , and assigns , shall take the action
set forth in the Trial Examiner's Recommended
Order.
'We are satisfied that this record justifies the conclusion that the
Respondent was unlawfully motivated in discharging Taylor. Cf. N.L.R.B
v. Melrose Processing Co., 351 F.2d 693 (C.A. 8), enfg. 151 NLRB 1352
We therefore find it unnecessary to adopt the Trial Examiner's statement
(in part III, A, 2, of his Decision ) that absent proof that Respondent's
hostility towards the Union , as revealed in Case 169 NLRB No. 146, had
been nullified or abandoned , its existence may be presumed to have
continued until at least the hearing herein.
119
represented by counsel and a representative of the Union,
Mr. Tom Johnson, present in the courtroom, was heard
before me in Kingston, Tennessee, on June 10 and 11,
1969, on complaint of the General Counsel and answer of
Roane Hosiery, Incorporated, Respondent herein.' The
issues litigated were whether Respondent discharged two
fixers, Lawrence T. Taylor on April 4, 1969, and Sidney
W. Webb on April 14, 1969, because of their union
activities, in order to discourage membership and
participation in the Union, and because they had testified
in a prior proceeding shortly before their discharge. The
General Counsel contended and Respondent denied that
Respondent violated Section 8(a)(3), (4), and (1) of the
National Labor Relations Act, as amended, 29 U.S.C.
Sec. 151, et seq., herein called the Act.
After the hearing the General Counsel and Respondent
filed helpful briefs, which have been carefully considered.
Upon the entire record and my observation of the
witnesses, I hereby make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Tennessee corporation maintaining its
principal office and place of business at Harriman,
Tennessee, is engaged in the manufacture and sale of
ladies' hosiery. During the calendar year prior to the
issuance of the complaint on May 15, 1969, a
representative period, Respondent sold and shipped
products valued in excess of $50,000 from its Harriman
plant and office directly to customers outside the State of
Tennessee. Respondent admitted and I find that at all
times material herein it has been and is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union of District 50, UMWA, herein
called the Union, is a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background Facts
1. Organizing campaign and Board cases
Since the spring of 1967 certain of Respondent's
employees including the two alleged discriminatees herein,
assisted by the Union, have been trying to organize the
plant at Harriman. Thus far they have not gotten as far as
an election. During this period two unfair labor practice
proceedings have been litigated, and this one is the third.
At the request of the parties I took and take official
notice of the first two proceedings.
In case 169 NLRB No. 146, the Board held that in
April 1967 Respondent violated the Act by an
interrogation of an employee concerning the Union, and
by Evans Kerley's threat to discharge Sidney W. Webb if
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALBA B. MARTIN, Trial Examiner: This consolidated
proceeding, with the General Counsel and Respondent
'In Case 10-CA-7738 the Union filed the charge on April 9, 1969, and
the first amended charge on May 9, 1969. In Case 10 -CA-7750 the Union
filed the charge on April 16 , 1969, and the first amended charge on May 9,
1969
180 NLRB No. 15
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he continued to talk with other employees about the
Union and its organizational activities . Respondent
refused to comply by posting the prescribed notice and the
case is now in the Court of Appeals for the Sixth Circuit
for enforcement.
The hearing in the second case , 10-CA-7536, was held
before Trial Examiner Eugene F . Frey on January 3 and
February 14 and 15, 1969 . At the time of Taylor's
discharge on April 4, 1969, and Webb ' s discharge on
April 14, 1969, the Trial Examiner ' s Decision had not
issued . The case involved whether Respondent violated
Section 8(aX3) and ( 1) of the Act by prohibiting
employees from circulating petitions and holding meetings
during " break" time, and by accusing Webb of bad work
with a threat of an adverse report in his record. On May
23, 1969 , Trial Examiner Frey recommended dismissing
the complaint . In the absence of any exceptions to Trial
Examiner Frey ' s Decision , on June 20 , 1969, the Board
entered an Order dismissing the complaint in its entirety.
2. Webb's and Taylor ' s union activity and giving
testimony , and Respondent ' s knowledge thereof
The record showed that Taylor and Webb were among
the employees actively promoting the Union in the plant
and in Harriman , a town of approximately 10,000
inhabitants in 1967 . They signed union cards , tried to
persuade others to, assisted organizers in handbilling the
plant between shifts , visited homes of employees with
union representatives, to solicit employees; and generally
talked up the Union whenever they could from 1967 to the
present . At the beginning , in March and April 1967, they
wore union buttons on their breast pockets in the plant;
and Webb testified that he did so again in January and
February 1969.
Taylor was the employee who, in February 1967, made
the initial contact with the Union in an effort to get it to
try to organize the plant . He signed a union card on
February 10, 1967 . At all times since then he has kept
union cards at hand so as to have them available for those
who would sign . As he was distributing at a plant gate a
handbill which contained a blank union authorization
card , in the spring of 1967, Taylor offered one of the
handbills to Supervisor Swicegood, who refused and shook
his head negatively . Before me Superintendent Kerley
admitted that he knew Taylor was active in the Union
something like 2 years ago and that he knew Taylor was
handing out "some cards" at a gate , that Taylor had been
seen doing it.
Webb testified for the General Counsel in both earlier
cases, and filed the charge in the second case . Taylor
testified in the second case . Respondent was represented
by counsel at these proceedings and of course knew that
these two dischargees testified against it . From their
presence as witnesses and from their testimony there can
be no question but that Respondent knew that both
Taylor and Webb were very active for the Union, and
perhaps the most active union adherents in the plant. The
Board has found in case 169 NLRB No. 146 that Kerley
was so hostile to the Union as to threaten Webb with
discharge if he continued to talk with employees about the
Union and its activities . In the absence of any proof that
Kerley' s hostility towards the Union has been nullified or
abandoned , its existence may be presumed to have
continued up until at least the hearing herein, which
includes time within the 10(b) period .' The Board's
experience is that such hostility manifests itself in some
situations against those who testify against Respondent in
Board proceedings.
B. Discharge of Lawrence T Taylor
1. Custom and practice concerning machine belts
Each of the knitting machines had at least one leather
belt, about three quarters inch wide and varying in length
but about 7 feet long. One of the duties of fixers was to
see that the belts on the knitting machines were in
sufficiently good shape to make the machines operate with
sufficient speed. Respondent wants the machines to run
fast to yield high production. This meant that from time
to time belts had to be removed from machines and
replaced. The fixers cut new belts of appropriate length
from a large spool of leather already in the proper width.
When a belt should be removed and replaced was left to
the judgment of the fixer. It was not proven that
management ever second-guessed the fixer as to what belts
should or should not be removed.
Removed belts were considered waste and were thrown
on the floor or in the trash. Frequently they were taken
home by the fixer who removed them, or by other
employees. They were taken from the plant at the end of
the shift openly and with no secrecy. Sometimes a fixer
would put belts he was going to take home on his toolbox
during his shift. The toolbox was at the end of a row of
machines where anyone passing could see it and the belts
on it. As Supervisor Swicegood admitted, "This has been
going on with the belts as long as I have been at the mill.
As long as I remember men have been carrying belts
out." Swicegood has been supervisor over the same
department for 8 years.
There was considerable testimony as to whether it was
necessary to ask for permission each time a removed belt
was taken from the plant. The record established that
certainly there was no hard and fast rule that was
universally understood. The practice of taking the belts
home was confined to a few employees and they were
trusted by management to remove from the machines and
take home only worn out belts of no more value to
Respondent. Under the circumstances it was not necessary
for management to see and approve of the taking of each
belt that was removed. Of note in this connection is that
on cross-examination Kerley admitted that he has not ever
told employees who ask for the belts that they must ask
him each time they carry a belt out.
Virgil Peters, a knitter who by his demeanor impressed
me as a credible witness, credibly testified that for the
past 6 years he has been taking the removed belts home
whenever he could find them, that he does so several times
a week. Peters credibly testified that several months ago
Supervisor Swicegood asked him what he did with the
belts and Peters told him. Swicegood replied he just
wanted to know, that they were going to be thrown away
anyway. Peters credibly testified that sometime in 1969 he
asked Superintendent Kerley if he could take "the belts"
home, and Kerley replied that it was all right. Peters
credibly testified that prior to Taylor's discharge it was
not his custom to ask each time if he could take the belts
home, and that he has never seen any employee asking for
permission to take them home.
Another witness who by his demeanor impressed me as
a credible witness was Gillis Taylor, another fixer. He is
no kin Lawrence T. Taylor. Gillis Taylor credibly testified
'Paramount Cap Manufacturing Co, 119 NLRB 785, 799, enfd. 260
F.2d 109 (C.A. 8).
ROANE HOSIERY, INC. 121
that he always takes home the belts he removes from
machines, that usually he tells one of the six supervisors
that he is going to take them and he says "all right," that
sometimes he leaves them on his toolbox during his shift
and takes them from the plant without saying anything to
any supervisor and without getting specific permission to
take those particular belts home.
The record showed that in addition to Peters and Gillis
Taylor, the following took belts home from time to time
Earl Brooks, Smith, Shelling, Gary, R.C. Tapp, and Roy
Cochran. Of these six the only one specifically shown by
the record to have asked and been granted permission was
Cochran.
In all the years that belts have been removed from the
plant by employees, Lawrence T. Taylor is the only one
who has been stopped at the door as he left with some,
and discharged allegedly for starting out of the plant with
company property.
The record showed that the number of belts removed
from the machines by a given fixer would vary from day
to day Each fixer took care of 90 machines. Lawrence T.
Taylor credibly testified that he might remove 8 or 10 in a
day and then not remove any for a week. Virgil Peters
credibly testified that some days 3 or 4 belts are removed,
that when the company used to have a "belts cutter"
whose duty was to shorten or replace belts, he has seen
more than 6 belts removed in a day. Fixer Gillis Taylor
credibly testified that the largest number of belts he has
ever "cut" in a day was perhaps 6, 8, or 10. By "cut" he
meant removed from the machine to shorten and splice it
and put it back on the machine.
2. Stopping and discharging Taylor
Lawrence T. Taylor, herein called Taylor, worked for
Respondent for almost 16 years, the last 12 of which as a
fixer. At the time of his discharge on April 4, 1969,
Taylor worked on the first shift, from 7 a.m. to 3 p.m.
under Supervisor Newton Swicegood and Evans Kerley,
superintendent of the knitting department. Kerley had
about 185 employees under him, mostly knitters and
fixers These employees took care of the over 1600
knitting machines. Superintendent Kerley testified that
Taylor was a good worker.
Some 3 or 4 years before the events of April 3 and 4,
1969, Lawrence Taylor asked Superintendent Kerley if he
could have some of the old belts and Kerley told him,
according to the latter's testimony, that he could have all
of the old broken ones he wanted. Although Kerley
testified he intended to give Taylor only the belts he was
talking about that day, he was not so understood by
Taylor, who understood he was given general permission
relating not only to that day but to the future. Taylor
credibly testified that from then on he took such old belts
as he wanted without asking permission each time and
without asking further permission of anybody.
Taylor estimated that he may have taken as many as 25
or 30 belts home in a year. He thought he might average
2 a month, and that "maybe I would take 5 or 6 home at
once and then maybe I wouldn't take any for 6 months."
There was no hint in the record of secrecy or theft in
these removals or the taking of the belts by the other
employees named above. Under these circumstances it is
inconceivable to me that over the years Kerley did not
know about and see employees removing the discarded
belts from the plant. Upon the entire record I do not
credit Kerley's testimony that he never saw any employee
removing belts who had not been given specific permission
and that he did not know Taylor removed any belts other
than the time Taylor specifically asked for them several
years ago.
On April 3, 1969, in the performance of his duties
Lawrence Taylor removed and replaced six belts from the
machines. He put string around them and put the bundle
on his toolbox at the end of an alley. That morning
Supervisor Swicegood told Superintendent Kerley that
Taylor was changing quite a few belts that day, but
neither Swicegood nor Kerley said anything to that effect
to Taylor. Kerley asked what Taylor was doing with the
old belts and Swicegood replied he did not know. Kerley
said we will find out. At noontime Superintendent Kerley
saw the bundle of belts on Taylor's toolbox and then
asked Swicegood if he knew what Taylor had done with
the belts, if Taylor had asked for them, and if Swicegood
had given them to Taylor. Swicegood answered all
questions in the negative Kerley told Swicegood that he
was going to observe who took the belts out because no
one had asked him for them, and that he was going to
talk to whoever started to leave with the belts at the end
of the shift, which was 3 p.m. Of course at this time
Kerley knew or strongly suspected that it was Taylor who
planned to take the belts home, for he knew they were on
Taylor's toolbox and that Taylor had removed a number
of belts from the machines that morning.
At about 2.50 p m that day a company vice president
rang for Kerley on another matter, and Kerley told
Swicegood that if he was not back by quitting time
Swicegood should "try to catch" anybody leaving with the
belts and tell him Kerley wanted to talk with him. The
record contains no suggestion that Kerley thought or
suspected it would be anybody other than Taylor.
About 3 p.m. Swicegood accosted Taylor as the latter
started to leave the plant openly carrying the belts.
Swicegood told Taylor that if he was going to take the
belts home he would have to see Kerley about them
Taylor replied he had asked Kerley for the belts.
Swicegood disputed this and repeated that he would have
to talk to Kerley if he wanted to take them. Thereupon
Taylor threw the belts on the floor next to the wall away
from the door and, showing anger, said that he would not
take the belts, that he wouldn't ask Kerley for anything.
Taylor added that if he ever saw anybody else taking belts
out of the mill he would have Evans Kerley back in
"court" again. This was an obvious reference to another
Labor Board proceeding He said he had asked Kerley for
the belts a long time ago. He looked at his watch and said
that he was not going to talk to Kerley on his own time,
that he would talk to him tomorrow on company time if
Kerley wanted to. Then Taylor left.
When Kerley returned from the vice president's office a
few minutes later, Swicegood told him of his conversation
with Taylor.
Shortly after the beginning of the morning shift at 7
o'clock the following morning, April 4, 1969, Kerley and
Swicegood went over to Taylor and Kerley engaged
Taylor in conversation about the belts. Kerley asked
Taylor why he had not come to him and asked him for
them. Taylor stated that he had asked for them. Kerley
asked, when. Taylor replied that it had been a long time
ago, "before we started to organize." Kerley said they
were not talking about a long time ago, but about these
belts you were dust taking. Taylor said that Kerley had
had it in for him every since we started to organize the
mill, that Kerley would not be talking to him as he was if
Taylor was a "company man." Kerley replied that all
employees working for the Company are "company men."
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Taylor asked what about all the other employees who had
been taking belts home, and specifically referred to Gillis
Taylor. Kerley said that about a year ago Gillis had asked
his permission to take belts home. Taylor observed that
that was a long time ago, too.
During the conversation Kerley told Taylor he was
going to discharge him, and that he could get his
discharge slip and final paycheck at 8 o'clock, roughly a
half to three quarters of an hour hence. The discharge
slip, signed by Kerley, dated April 4, and handed to
Taylor about 8 a.m., gave as the reason for the discharge:
He was caught starting out of the Plant with some
Company property.
Asked on the witness stand why he discharged Taylor,
Superintendent Kerley, saying nothing about the above
reason , replied:
.Because he refused to talk to me any further about
the belts.
And because:
He was real irritated: He was mad about it and he
refused to discuss it any further.
At the hearing Kerley and Swicegood asserted, and
Taylor denied, that during the terminal interview Taylor
early said that he didn't want to talk about those belts,
and later that he would not talk about those belts
anymore. Respondent's answer asserted that Taylor was
discharged:
Because he was apprehended in the act of removing
company property without permission, coupled with his
subsequent insubordinate and defiant conduct.
It is clear to me upon the entire record that if Kerley
and Swicegood had thought alleged insubordination had
anything to do with the discharge, that reason would have
been assigned in the discharge slip delivered to Taylor
within the hour of the event. Because of its omission from
the discharge slip I believe and find that on the morning
of the event the supervisors did not consider Taylor's
conduct insubordinate and that insubordination was not a
reason for the discharge. Further, by his demeanor Taylor
impressed me as a credible witness and I credit his denial
that during the terminal interview he said he would not
talk about the belts anymore. Kerley did not undertake
during the conversation to talk with Taylor about the
individual belts Taylor had started out with the day
before, although Kerley had them close at hand. It
appears to me, and I find, that insubordination as a
reason was simply an afterthought utilized to buttress the
defense.
Why did Respondent handle this Taylor discharge as it
did, by lying in wait and intentionally creating a
confrontation with Taylor, by intentionally creating an
incident and putting Taylor on the defensive over the
belts, when for years employees had been taking removed
belts from the plant with impunity, with express or
implied permission, and with, as I find upon the entire
record considered as a whole, the knowledge of
management . When Swicegood first concluded on April 3
that Taylor was changing "quite a few" belts, had
Respondent been nondiscriminatorily disposed towards
Taylor, Swicegood could so easily have talked the matter
over with Taylor and discussed with him whether he was
having any special trouble with the machines or the belts.
Instead he confided his thought only to Superintendent
Kerley.
Kerley's behavior on April 3 shows that he suspected
Taylor of dishonesty, of removing good belts from the
machines so he could take them for his own use. Kerley
testified that he had a short glimpse of the belts lying on
Taylor's toolbox and thought some of them were still
usable . Had he been nondiscriminatorily disposed toward
Taylor, no reason appears as to why Kerley did not then
and there undertake a discussion with Taylor as to
Taylor' s intentions and the condition of the belts. The fact
that Taylor's dander was up when he sensed entrapment
as Swicegood stopped him that afternoon is no evidence at
all that Taylor would have refused to discuss the belts if
the subject had been raised with him in the ordinary
course of the day's employment relationship and without
first entrapping him. The record contains no hint that
Taylor was a difficult employee or that Kerley or
Swicegood would have encountered any difficulty in
discussing the belts with him if they had tried to do so
without first putting Taylor on the defensive.
The fact that Respondent intentionally created a
confrontation, an incident , with Taylor, who had been a
trusted employee for 16 years, within a few weeks after
the hearing before Trial Examiner Frey in which Taylor
testified adversely to Respondent, is weighty evidence to
me that Respondent was out to "get" Taylor because he
gave testimony under the Act and because Taylor was
assisting the Union. No other reason appears in the record
as to why, otherwise, Respondent created this
confrontation.' The timing of this confrontation soon after
Taylor gave testimony and the way Swicegood and Kerley
handled the matter of the belts, is convincing to me that
they were out to "get" Taylor, to find a pretext, and saw
and accepted an opportunity to do so on April 3.
Upon the above facts and considerations and upon the
preponderance of the credible evidence in the entire record
considered as a whole I believe and hold that
Respondent's asserted reasons for the discharge of Taylor
were pretexts, and that the real reasons for the discharge
were to eliminate a strong prounion employee in order to
discourage employees from joining or supporting the
Union, and to eliminate Taylor because he gave testimony
under the Act, Respondent thereby violating Section
8(a)(4), (3), and (1) of the Act.4
'Respondent had recently learned that the price of leather was going up,
but Kerley and Swicegood had not mentioned this fact to Taylor, although
they had mentioned it to other fixers . Kerley testified that this letter
caused no change in company policy about taking belts from the plant.
At the hearing Respondent introduced into evidence the six belts Taylor
had removed and was carrying out. Four witnesses besides Taylor testified
as to the condition and usability of each belt, Respondent contending
Taylor should not have removed some of them because they were still
usable . As neither Swicegood nor Kerley examined the belts beyond a
cursory glance prior to the discharge and made no close study of their
usability on the machines, I find it unnecessary to burden this Decision by
setting forth this evidence I have , however, closely considered it. In sum it
showed that different people had differing judgments based upon differing
aspects of the belts. One of the belts appeared reasonably new to all four
of the witnesses , but it had oil on it Taylor testified the belt felt to him as
though it had dressing on it , and that if oil gets on a belt treated with
dressing it won't pull the machine. There was contradictory testimony
about different though unidentified dressings and their effect upon the belts
and the machines . This showed some fixers believed in and used a dressing
and some did not. Kerley does not authorize the use of dressings but he
does not penalize those who use them . There was also conflicting testimony
as to the effect and desirability of scraping oil off the belts. All of the belts
were and are soaked with oil It appears to me that Respondent was
attempting at the hearing to "second guess" Taylor's judgment concerning
removing these belts , which it didn ' t do in the plant on April 3 and 4 and
didn't do with other fixers, as has been set forth above. Even if Taylor
made a mistake of judgment, this did not prove that Taylor was a thief
and should have been treated as a suspected thief by Respondent To be
noted is that the belts never left the plant , that Respondent had them at all
ROANE HOSIERY, INC.
C. Discharge of Sidney W. Webb
As has been seen above the Board has found in 169
NLRB No. 146 that in April 1967 Kerley threatened to
discharge Webb if he continued to talk with other
employees about the Union and its organizational
activities.
Prior to his discharge April 14, 1969, Webb had
worked for Respondent for some 18 years.
The General Counsel contended that Webb was
discharged because of his union activities, which have been
set forth above, and because he filed the charge and
testified in the second case against Respondent before
Trial Examiner Frey. This contention would have been
persuasive to me if Webb had been a credible witness. By
his demeanor at the hearing and on the witness stand
Webb did not impress me as an honest and trustworthy
witness. He impressed me as a very weak witness, not
completely certain of his own memory and conveying the
impression that he was not certain of his own
trustworthiness as a witness. He was confronted by
overwhelming evidence by Respondent.
Webb was a fixer on the second shift (3 p.m. to 11
p.m.), with the responsibility of taking care of 90 knitting
machines. By the credible testimony of six witnesses,'
Respondent proved that on April 14 Webb neglected his
duties for a long period of time, possibly as long as an
hour or more, which he spent away from the alleys
between the rows of machines he was supposed to attend.
When at about 4:30 that afternoon knitter Lawson
reported to Supervisor Thomas that he needed help, that
he had a number of machines down and could not get
them going, and that one had been down 40 minutes,
Thomas checked Webb's machines and counted eight of
them down and all eight flagged, which was a sign from
the knitter to the fixer that a machine needed attention.
Lawson told Thomas, according to the latter's credited
testimony, that one machine -- number 20 in row 17 -
had been down for 40 minutes.
Thomas found Webb in the restroom sitting on a
bench. Thomas asked Webb what he was going to do
about those machines that were down. Webb replied that
he didn't know any were down and that he had just come
into the restroom. They went back to Webb's machines
and Thomas reminded Webb that he had previously
warned Webb that if he found him loafing in the restroom
anymore he would discharge him for loafing. Webb did
not deny that he had been previously warned. Thomas
then discharged Webb, telling him to return the following
morning and see Superintendent Kerley. Then Thomas
asked Head Fixers Hall and Isham to fix Webb's
machines. It took the two of them nearly an hour to get
all the machines running, including machine number 20 in
row 17. Hall and Isham credibly testified that when they
took over there were seven or eight machines flagged.
On April 16 Webb received his discharge slip in the
mail, signed by Kerley and giving as the reason for the
discharge:
Discharged for excessive loafing in restroom with
machines down. He has been warned of this many times
before.
Before me Webb denied that he had been previously
warned about excessive loafing in the restroom with
times after that, and that Respondent never chose to use them again on the
machines or to see if they would pull the machines at sufficient speed.
'Harlan Thomas, Thomas Lawson, James Settles, William Anderson
David Hall, and Roy Isham.
123
machines down. Supervisor Harlan Thomas credibly
testified that several times he had "gotten after" Webb
because he didn't spend the necessary amount of time in
his alleys, and that, specifically on March 6, 1969,
Thomas went into the restroom to get him and warn him
that if he ever "had to come after him any more" he
would "discharge him for loafing in the restroom." On
cross-examination Webb did not deny but said he did not
remember having this March 6 conversation with Thomas
only 3 months before. Webb testified that he did not
remember Thomas' telling him he was spending too much
time away from his machines and that if he didn't stop it
he would be discharged. Webb testified that "if it had
happened I don't remember him telling me." Webb added
that "I am not denying it. He might have said it, but I
don't remember it if he said it."
Webb admitted that in the trial before Trial Examiner
Frey he had been accused of being away from his work
station excessively, but before me he denied admitting
before Trial Examiner Frey that he sometimes was absent
for an hour. Then Respondent cited passages from the
transcript of the earlier hearing in which Webb testified
that although he didn't remember staying in the restroom
an hour, he could have done that on more than one
occasion, and that while in the restroom he was talking to
employees about any subject including the Union but was
not talking about his machines or his work.
I hold that Respondent was out to "get" Webb because
he gave testimony under the Act and because he had and
was assisting the Union, just as it was out to "get"
Taylor, as found above. This finding concerning Webb
was amply borne out by the record. As the Board found
in case 169 NLRB No. 146, in April 1967 Kerley
threatened to discharge Webb if he continued to talk with
other employees about the Union and its organizational
activities. As there was no proof that this threat was ever
withdrawn or abandoned, it revealed Kerley's continuing
state of mind up until at least the hearing herein, which
included time within the 10(b) period.
Webb testified that on April 14, 1969, after he went to
work at the beginning of the 3 p.m. shift, he performed
his work until going into the restroom not more than 5
minutes before Superintendent Thomas arrived, that just
before he went into the restroom he checked his machines
and found them all functioning and with no flags raised.
On credibility grounds I do not credit this testimony at
all. In this connection, the other fixer on whose machines
Webb worked, James Settles, credibly testified that he saw
Webb only once at the beginning of the 3 p.m. shift on
April 14, and did not see him thereafter; and a
fixer-learner, William Anderson, credibly testified that he
saw Webb only at the beginning of the shift that
afternoon; that from where Anderson worked he would
have seen Webb if Webb had been in his aisles working
and that he didn't see Webb but the one time.'
A young man, John E. Love, testified for the General
Counsel that he inspected Webb's machines four times a
day to see that there were no runners or bad mesh in the
stockings being produced, and that he spent his breaks
with Webb. Love testified that when Love worked for the
Company, which was only from December 2, 1968, until
February 24, 1969, Webb was always in the alleys
checking his machines. This testimony does not controvert
the events of March 6 and April 14, 1969, found above,
'Anderson also testified that once, on an undisclosed date, Settles asked
him to work on one of Webb's machines because, Settles said, he could not
find Webb.
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and does not change my conclusions reached herein.
Despite Kerley's intent to discharge Webb for union
activities, I find and hold upon the preponderance of the
evidence in the entire record considered as a whole that,
for reasons best known to him, Webb opened himself up
too widely, loafed on the job and neglected his duties on
April 14, 1969, and previously, and that this was the
reason Respondent discharged him, which was discharge
for cause. Under all the circumstances this discharge was
not in violation of the Act and I recommend that the
complaint be dismissed as to Webb.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in -connection with Respondent's
operations described in section 1, 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.
V. THE REMEDY
I recommend the customary broad cease-and-desist
order and the affirmative relief conventionally ordered in
cases of this nature, where Respondent's unfair labor
practices were of a character which struck at the roots of
employee rights safeguarded by the Act.
To remedy its discriminatory discharge of Lawrence T.
Taylor Respondent will be required to offer him
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights
and privileges, and to make him whole for any loss of pay
suffered by reason of the discrimination against him by
paying to him a sum of money equivalent to the amount
he normally would have earned as wages from the date of
his discharge, April 4, 1969, to the date of the offer of
reinstatement, less his net earnings during such period.
The backpay shall be computed on a quarterly basis in the
manner prescribed by the Board in F. W Woolworth
Company, 90 NLRB 289, with interest thereon at 6
percent as ascertained by the formula adopted in Isis
Plumbing & Heating Co., 138 NLRB 716.
As provided in the Woolworth case, I recommend
further that Respondent make available to the Board,
upon request, payroll and other records in order to
facilitate the checking of the amounts of backpay due.
Upon the basis of the foregoing findings of fact and the
entire record in the case, I make the following.
CONCLUSIONS OF LAW
1. Roane Hosiery, Incorporated, of Harriman,
Tennessee, is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Union of District 50, UMWA, is a
abor organization within the meaning of Section 2(5) of
the Act.
3 By discriminatorily discharging Lawrence T. Taylor
because of his union activities and because he gave
testimony under the Act and in order to discourage
employees from joining or supporting the Union,
Respondent violated Section 8(a)(4), (3), and (1) of the
Act
4. The aforesaid labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the preponderance of the
evidence in the entire record considered as a whole, I
recommend that Roane Hosiery, Incorporated, of
Harriman, Tennessee, its officers, agents, successors, and
assigns, shall:
I Cease and desist from.
(a) Discriminatorily discharging employees because of
their union activities in order to discourage employees
from joining or supporting the Union, and because they
give testimony under the Act.
(b) 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 any labor organization to engage in concerted
activities for the purposes of collective bargaining or other
mutual aid or protection, or to refrain from any or all
such activity.
2. Take the following affirmative action, which I find
will effectuate the policies of the Act.
(a) Offer to Lawrence T. Taylor reinstatement to his
former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges,
and make him whole in the manner prescribed in the
portion of the Trial Examiner's Decision entitled "The
Remedy" for any loss of earnings suffered by reason of
the discrimination against him.
(b) Notify Lawrence T. Taylor 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 Training
and Service Act, as amended, after discharge from the
Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(d) Post at its plant or plants in Harriman, Tennessee,
copies of the attached notice marked "Appendix."' Copies
of said notice, on forms provided by the Regional
Director for Region 10 (Atlanta, Georgia) after being duly
signed by Respondent's authorized representative, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material
(e) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.'
'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
Appeals Enforcing an Order " shall be substituted for the words "a
Decision and Order "
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith."
ROANE HOSIERY, INC
Concerning the discharge of Webb I recommend that
the complaint be dismissed
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner 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 Lawrence T Taylor immediate and
full reinstatement to his former or substantially
equivalent position, without, prejudice to his seniority
and other rights and privileges previously enjoyed, in
accordance with the recommendations of the Trial
Examiner's Decision.
WE WILL notify Lawrence T Taylor 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 Training and Service Act, as
amended, after discharge from the Armed Forces.
WE WILL make whole Lawrence T Taylor for any
loss of pay suffered by him by reason of the
discrimination practiced against him, in accordance
with the recommendation of the Trial Examiner's
Decision
WE WILL NOT discriminate against any employee
because of his union membership or activities or
125
because he has given testimony under the National
Labor Relations Act 1. -
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in -the exercise of the
right to self-organization, to form labor organizations,
to join or assist International Union of District 50,
UMWA, or any other labor organization, to bargain
collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purposes of collective bargaining or any other
mutual aid or protection, or to refrain from any and all
such activities.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of
International Union of District 50, UMWA, or any other
labor organization
ROANE HOSIERY,
INCORPORATED
(Employer)
Dated By
(Representative) (Title)
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, Room 701, 730
Peachtree NE , Atlanta, Georgia 30308, Telephone
404-526-5741