Schneider Mills, Inc.

National Labor Relations Board - Board Decisions

May 23, 1967

164 N.L.R.B. 879 (N.L.R.B. 1967)

SCHNEIDER MILLS 879
Schneider Mills, Inc., and Jimmy and Josh,
Inc. and Textile Workers Union of America,
AFL-CIO. Case 11-CA-3010.
May 23,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On January 20, 1967, Trial Examiner Herbert
Silberman issued his Decision in the above-entitled
proceeding, finding that the Respondents had
engaged in and were engaging in certain unfair labor
practices and recommending that they cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. He further found that the Respondents
had not engaged in certain other unfair labor
practices alleged in the complaint, and
recommended that such allegations be dismissed.
Thereafter, the Respondents 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 Respondents' exceptions
and brief, and the entire record in the case, and
hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the
following additions.
The Trial Examiner found, and we agree, that the
Respondents discriminatorily discharged employees
Miller, Williams, and Caldwell on April 11, 1966, in
violation of Section 8(a)(3) and (1) of the Act. Our
agreement with this conclusion is based upon the
entire record, particularly the considerations set
forth below.
The Respondents contend that Miller, Williams,
and Caldwell were discharged because they twice
refused, when summoned to the office of Plant
Manager Schneider for individual interviews, to go
to the office unless accompanied by fellow
employees. Although the three dischargees had been
employed by the Respondents for from 1 to 5 years,
each of them testified that he had never previously
been summoned individually to Schneider's office,
and was afraid to report without a witness.
The Respondents have a history of unfair labor
practices, as found by the Board,' including threats,
interrogation, creating the impression of
surveillance, refusal to bargain with the certified
Union, and the discharge of six employees because
they had engaged in union activities. Furthermore,
164 NLRB No. 114
the dischargees were known by the Respondents to
be active in the Union, and Williams and Miller had
testified adversely to the Respondents at a Board
hearing only a few days before the discharges.
The Respondents maintain that they sought the
interviews on Friday, April 8, to question employees
about a rumor that there was to be a second work
stoppage, and the interviews on the following
Monday to warn those who had refused to report to
the office on Friday that such refusal was considered
to be a serious act of insubordination. The only
employee who testified as to what transpired at the
first interviews on Friday was Barnes, whose
undisputed testimony shows that there was no
reference to the rumor of a second work stoppage
during his interview, and that the entire 25-minute
discussion related to what Barnes and the other
employees hoped to gain by their union activities.
Miller's supervisor, when he told Miller on Friday to
go to the office to be interviewed, informed him that
Barnes had already been interviewed. Moreover, as
Schneider admitted and the Trial Examiner found,
the subjects discussed at some of these interviews
with employees other than Barnes related to the
organization of the Union. Therefore, and
particularly as Barnes as well as the three
dischargees were weavers on the first shift, they
must have been aware of the nature of the interviews
which took place on Friday. In all the circumstances
of this case, we find that the request of the three
employees that they be accompanied by a fellow
employee during the interviews was grounded upon
a reasonable apprehension, but was characterized as
"insubordination" and seized upon by the
Respondents as a pretext for getting rid of three
militant union adherents.
ORDER
Pursuant to Section 10(c) of the National Labor
relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondents, Schneider
Mills, Inc., and Jimmy and Josh, Inc., Taylorsville,
North Carolina, their officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
I Schneider Mills, Inc, and Jimmy and Josh, Inc, 161
NLRB 1135, Schneider Mills, Inc, and Jimmy and Josh, Inc , 159
NLRB 982
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN, Trial Examiner: Upon a charge of
unfair labor practices filed by the above-named Union on
April 15, 1966, a complaint, dated July 28, 1966, was duly
880 DECISIONS OF NATIONAL LABCR RELATIONS BOARD
issued alleging that Respondents Schneider Mills, Inc.,
and Jimmy and Josh, Inc., herein sometimes jointly
referred to as the Company, have engaged in unfair labor
practices in violation of Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended. The
complaint, as amended at the hearing, in substance alleges
that Respondents on March 30, 1966, discriminatorily
discharged Johnny Pennell and on April 11, 1966,
discriminatorily discharged Ned Miller, Eula Caldwell,
and Richard Williams and, by reason of said discharges
and other conduct set forth in the complaint, have
interfered with, restrained, and coerced employees in the
exercise of rights guaranteed by Section 7 of the Act.
Respondents filed an answer to the complaint which
generally denies that they have engaged in the alleged
unfair labor practices. A hearing was held in Statesville,
North Carolina, on October 5 and 6, 1966, at which all
parties were represented. Subsequent to the hearing,
General Counsel and Respondents filed briefs which have
been carefully considered.
Upon the entire record in the case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Schneider Mills, Inc., and Jimmy and Josh , Inc., which
are South Carolina corporations , are a single integrated
enterprise engaged in the business of manufacturing
textiles and textile products . They maintain their principal
offices and place of business at Taylorsville, North
Carolina. During the 12 months immediately preceding the
issuance of the complaint , Respondents manufactured,
sold, and shipped finished products valued in excess of
$50,000 to points and places outside the State of North
Carolina from their Taylorsville , North Carolina, plant.
Respondents admit , and I find, that they are engaged in
commerce withi . the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
Textile Workers Union of America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
This case has its genesis in the Union's drive to organize
Respondents' production and maintenance employees
which began in early September 1965, and Respondents'
determined opposition thereto. On November 5, 1965, the
Union won an election conducted by the Board, but
Respondents nevertheless have persisted in their refusal
to recognize and to bargain collectively with the Union.
Such refusal and other conduct by Respondents gave rise
to charges of unfair labor practices, the issuance of a
complaint thereon, and a hearing in said proceedings
which was held on April 5 and 6 and May 10 and 11, 1966.
Two decisions have been issued by the Board therein. In
one case, reported at 159 NLRB 982, the Board found that
the Respondents, since about March 4, 1966, by refusing
to bargain collectively with the Union as the exclusive
representative of their employees in an appropriate unit,
have violated Secttion 8(a)(5) and (1) of the Act. In the
second case, reported at 161 NLRB 1135, the Board found
that between September 15 and November 5, 1965,
Respondents discriminatorily discharged six employees in
violation of Section 8(a)(3) and (1) of the Act and engaged
in further violations of Section 8(a)(1) by coercively
interrogating employees about the union activity in the
plant and about the identity of the employees supporting
such activity, by creating the impression among their
employees that the Respondents were engaged in the
surveillance of their employees' union activities, and by
threatening employees with reprisals in order to
discourage union membership and activities. So far as the
record in this case shows between the times when the
events litigated in the two cases cited above took place and
the spring of 1966, when the transactions which are the
subject of this proceeding occurred, there has been no
lessening of the Company's opposition to the Union or of
its hostility toward employees who support the Union.
B. The Alleged Interference, Restraint, and Coercion
There is only one alleged violation of Section 8(a)(1) in
this case independent of the alleged discriminatory
discharges. According to employee Ned Miller, in mid-
March 1966 his supervisor, Clarence Annas, summoned
him to the office to discuss a rating form which Annas was
required to fill out concerning Miller. Among other things,
the form called for grading the employee as good, fair, or
poor with respect to various characteristics including
ability to do the job, attitude toward the job, and loyalty.
Miller testified that Annas "rated me, I think, fair on
production, and attitude.... I was rated good, I think, on
one or two things. And, when he got to the loyalty he
said-'this is a touchy subject, . you know Ned you
worked for the wrong party-so, I can't rate you good on
that.... I'll show you how I'm rating you,' so he marked it
fair." General Counsel argues that "[t]he expression
`wrong party' within the context of this case can only mean
the Union" and that Miller was penalized with respect to
his rating for loyalty because of his union activities.
However, Annas denied that he made the incriminatory
remark. According to Annas, "In regard to loyalty, I said,
`I grade this on a man 's production, attendance, and a man
giving a fellow a fair day's work for a fair day's pay."' On
this bare bones record,' I cannot find that the version of
either witness is more credible than the version of the
other and, accordingly, I find that General Counsel has not
proved by a preponderance of the evidence that the
aforesaid incident constitutes a violation of Section 8(a)(1)
of the Act.
C. The Discharge of Pennell
The next relevant event was the discharge of Johnny
Pennell on March 30, 1966 . Pennell, who first began to
work for the Company in 1956, had been discharged on
September 15, 1965. In the case reported at 161 NLRB
1135, the Board found that such discharge was unlawful in
that Pennell had been terminated because the Company
believed he was active in the Union. Late in November
1965, prior to the decision in said case, the Company
reinstated Pennell. Although no evidence was adduced
' None of the parties introduced the so-called rating card in applied, or what effects, if any, the ratings have upon the
evidence, or offered any evidence concerning the reasons for the employees' conditions of employment.
ratings, when the ratings practice was established, how it is
SCHNEIDER MILLS 881
reflecting any discriminatory disposition on the part of the
Company toward Pennell between the dates of his
reinstatement and his subsequent discharge and although
no evidence was adduced showing union activity by
Pennell during such period, nevertheless, General
Counsel argues that the second discharge was in
furtherance of the Company's discriminatory purposes,
revealed in the prior case. According to the General
Counsel, the Company reinstated Pennell merely to
mitigate the adverse consequences of its earlier
discrimination against Pennell, but without abandoning its
intention of ultimately separating him from its employ.
Johnny Pennell worked as a loomfixer on the third shift
(11 p.m. to 7 a.m.) and was discharged upon the
recommendation of his immediate supervisor, Walter
Hines. This action was approved, in turn, by Paul Ingram,
superintendent of weaving, and Plant Manager Gordon
MacKenzie. The Company contends that Pennell was an
unsatisfactory employee and that he was discharged for
cause. The event which triggered the discharge was
Pennell's failure to fulfill a direction given to him on
March 29 at the beginning of his shift to place two looms in
operation by the end of the shift. Hines testified that this
incident alone was not the reason for his recommendation
that Pennell should be discharged but that his decision
was based upon Pennell's "back record." According to
Hines, "[w]hen Johnny first came back to work [at the
end of November 1965] about the first week or two, he
done me a good job;2 and then he started slacking off; and
I had had to talk to him, well, a couple of times; and then I
came up and asked him to get these two looms started; and
he wouldn't do that." Consequently, Hines decided to
terminate Pennell.
Respondents advert to several incidents, summarized
below, to support their position that Pennell's conduct and
performance at work following his reinstatement was
unsatisfactory.3 On December 11, 1965, about 11:30 p.m.,
Supervisor Hines brought Pennell to Ingram's office,
according to the latter, "to talk to Mr. Pennell about being
off his job, about his job in general and his attitude." Hines
admonished Pennell for having left his work station the
previous night and for having wandered into another
weaveroom.4 Hines also reproved Pennell for failing to
turn the pick clocks at the start of his shifts.5 Pennell's
response to the latter reprimand was to inquire whether "it
was in the rule book." Hines reminded Pennell that it
always had been a rule at the plant that the loomfixers
would help turn the pick clocks. At the end of the
interview Hines told Pennell to return to work and
remarked that no more was expected from Pennell than
from any other fixer. Pennell answered, "I will go back
and do part of it [referring to his work, particularly turning
the pick clocks] ... I will not go back out there and kill
myself." Before Pennell left he asked Hines, "Why don't
you get your firing book out?" Also, during the interview,
when Pennell wasn't talking "he sat there with his head
down whistling."
The next incident took place on February 24, 1966.
Supervisor Hines handed Pennell a form listing safety
instructions and asked him to read and sign the card. At
the bottom of the card there is a line for the employee's
signature. Above it is printed: "I have (read)-(had
explained to me) and will observe the SAFETY
INSTRUCTIONS set forth above." However, after
Pennell read the card he returned it to Hines saying that
he was not going to sign it.
A third incident occurred on March 3, 1966. Pennell had
been absent from work on three successive nights. Con-
trary to the rule requiring employees to inform the
Company when they will be absent from work (so that the
Company can make arrangements for someone else to
cover the absent employee's job), no advice was given to
the Company by Pennell or anyone on his behalf that he
would not report for his scheduled shifts on the first two of
said three nights.6 On March 3, Hines gave Pennell a
copy of the employee warning notice which Hines had
prepared regarding the matter. Pennell tore up the notice
and threw the pieces of paper on a desk remarking to
Hines, "I don't want the damn thing." 7
The following night, March 4, Pennell was given another
employee warning notice by Third-Shift Overseer Miller
Walker, this time for having permitted an excessive
number of looms to be stopped. Again Pennell tore up the
copy of the notice which was handed to him and tossed the
pieces on a desk.
Considerable evidence was adduced concerning the
events during the night of March 29 when Pennell did not
start two looms as he was instructed. In regard thereto
General Counsel, in his brief, relying entirely on Pennell's
testimony, aruges that Pennell had not been told that the
looms had to be placed in operation by the end of the shift
and that among the other reasons the looms were not
operative was that the "ends" were out and it was the
responsibility of the smash hand, not the loomfixer, to
remedy this condition. However, I credit Hines, whom I
find was a more reliable witness than Pennell, that Hines
specifically informed Pennell that the former wanted the
looms started by the end of the shift.8 As to the matter of
the "ends," there is no dispute that it was not the
2 Miller Walker, the third -shift overseer , also testified that
"when Johnny first came back with us, he did a good job, and I
told Johnny that he did . . a real good job "
3 Pennell, whose manner on the witness stand was surly and
uncooperative, in general, impressed me as being an unreliable
witness With respect to conflicts of testimony involving Pennell,
for the most part, I have not credited Pennell
During the interview when Hines asked Pennell what he was
doing in the other weaveroom, Pennell replied that Hines had
instructed him to get the unifill fixer. However, the established
procedure for calling the unifill fixer was to turn on a signal light
and to note on a pad, which was kept nearby, which loom required
repairs
5 The weavers are paid on a piece-rate basis The pick clocks
measure the weavers' production and it is necessary to reset the
pick clocks at the start of each shift in order for the weavers to
receive full credit for the production on their respective shifts
6 According to Pennell, his wife unsuccessfully tried to
telephone Hines both at home and at the plant to inform Hines
that Pennell would be absent from work on the two nights in
question
' With respect to this notice and the notice given to Pennell the
next night, Pennell explained that he tore them up because he did
not think he deserved them and when the copies of the notices
were given to him he was told he could do with the notices what he
wanted This hardly serves as an excuse for his effrontery in
tearing up the notices in the presence of his supervisors, thereby
scornfully suggesting to them that he was going to ignore the
warnings
" I am not persuaded by General Counsel's argument that
Hines' testimony to the effect that he specifically told Pennell to
start the looms before the shift ended was impeached because
Hines "did nothing to check and see whether the looms were
going to be ready in time " and because Hines did not testify that
Pennell was "goofing off" that night
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
loomfixer's responsibility to correct a breakout of "ends."
However, the evidence adduced on behalf of the
Company, which I credit, is not that the two looms were
inoperative because the "ends" had not been tied but that
Pennell did not complete the work on the two looms which
was within the area of his responsibility.
The General Counsel's theory is that the events of
March 29 "smacks of a predetermined, pretextual effort to
find a `reason' for discharging Pennell," and Respondents'
unalterable opposition to the organization of its employees
viewed in the light of its prior unremedied unfair labor
practices suggests that Respondents' true reason for
discharging Pennell was to eliminate a union adherent
from its employ. However, I find that General Counsel has
not proved by a preponderance of the evidence that the
events of March 29 were contrived to disguise the
Company's underlying unlawful reason for discharging
Pennell. Contrary to General Counsel, I find that for a
substantial period prior to Pennell's discharge he was
impudent and insolent toward his supervisors and
indifferent and uncooperative in the performance of his
work and that, as argued by the Company, he was
discharged for cause.
D. The Discharges of Caldwell, Miller, and Williams
A regular weekly union meeting was held on Thursday,
March 31, the night after Pennell was discharged. The
employees attending the meeting, who were disturbed by
the Company's continued refusal to recognize and to
bargain with the Union despite the Union's certification
and by the discharge of Pennell, voted to stay away from
work the following Saturday and every Saturday thereafter
until the Company should recognize the Union.
Accordingly, on Saturday, April 2, and also Saturday,
April 9, about 50 employees, most of whom worked in the
weaveroom, were absent. The Company was aware that
the unusually large number of absences on both Saturdays
was the result of concerted action, or strike activity, on the
part of its employees in protest of its refusal to deal with
the Union.10 After the first work stoppage on April 2, the
Company heard rumors that there would be a repetition on
April 9. Beginning with the third shift on Thursday,
April 7, and continuing through the first shift on the next
day, employees who had been absent from work the
previous Saturday were individually summoned to the
office to meet with Albert Schneider, vice president, plant
manager , and operating head of the Company. According
to Schneider, the purpose of these interviews was to
ascertain "what we were going to have available to us in
the way of labor that Saturday (April 90 if they did stay out
(again)."11 Schneider interviewed 14 or 15 employees on
the third and first shifts. However, eight or nine other
employees who were called, including Ned Miller, Eula
Caldwell, and Richard Williams, refused to go to the
office. Schneider learned that the objection on the part of
Miller, Caldwell, and Williams, as well as some of the
other employees who had refused to report to the office,
was to meeting with him alone rather than outright
defiance of his summons. Schneider testified that he
considered such refusals "a disturbing thing ... a very
serious breach of plant discipline ... because it certainly
meant that we were losing all control over how we were
going to operate our plant." On Monday, April 11,
Schneider again sent for Miller, Caldwell, and Williams.
According to Schneider, it was his intention to remind
these people that their refusals during the previous week
to respond to his summons were serious offenses and to
tell them that in the future they were expected to report to
the office when asked or directed. However, the
employees again refused to comply with the request and
Schneider was informed that in each case the employee
was willing to go to the office in the company of other
employees but refused to meet with Schneider alone.
These three employees were discharged upon the
instructions of Schneider for their refusals on April 11 to
respond to the summons to his office.
In declining to report to Schneider's office on the 2 days
in question (April 8 and 11), Caldwell, Miller, and Williams
were not following any prearranged understanding among
themselves, but each acted independently of the other
two. Eula Caldwell testified that on April 8 when her
supervisor told her to report to the office she replied, "I'll
be glad to talk to Mr. Schneider if I can take someone with
me." While she was not informed why she was being
asked to report to the office, Caldwell testified, "I felt like
he [Schneider] wished to talk to me about the Union. "i2
When called to the office for the second time on April 11,
Caldwell again refused to go alone. Respondents' counsel
on cross-examination inquired with some persistence as to
Caldwell's reasons for having refused to go to the office. In
relevant part her answers to his questions were as follows:
Well, with all the trouble that had been going on in the
mill I didn't know what to expect-in 5 years I had
never been requested to talk to Mr. Schneider.
I felt like I needed a witness to his conversation with
me and my conversation to him.
* * * * *
Since there had been so many fired since the Union
was voted in, I didn't know what was taking place, I
felt like that I needed someone with me.
* * * * *
Well, there had been so many things that had been
told and were not true, and that were untrue, there
had been so many people fired I did not know what to
expect if I went in there; I didn't know if-that he
couldn't say what he wanted to-he had Paul Ingram
with him and I would have been by myself and my
word would have been nothing.
* * *
' Pennell testified that there were occasions when he tied
"ends" in order to start a loom , but that it was not his job to tie
"ends" and that he never tied as many as 50 to 75 "ends" which
were the number of "ends" that had to be tied on the looms in
question
"' Albert Schneider testified that on Monday, April 4, the
supervisors were instructed to determine the reasons for the
unusually large number of absences on the preceding Saturday
Various employees testified that, when asked, they informed their
supervisors that they had stayed away from work in protest of
Pennell's discharge and the Company's refusal to bargain with
the Union In addition, the Union, on April 4, mailed a letter to the
*
Company stating that employees had remained away from work
on April 2 and 3 as a concerted action in an attempt to seek some
resolution of the unfair labor practices on the part of the Company
and of other problems.
" According to Schneider, on April 8, Plant Manager
MacKenzie was supposed to have interviewed the employees
working on the second shift who had participated in the April 2
strike No evidence was offered as to whether MacKenzie
conducted any such interviews
12 Caldwell also testified that when she was summoned to
Schneider's office on April 11, she again was not told what he
wished to discuss with her
SCHNEIDER MILLS
Q. (By Mr. Erwin) Now, Mrs. Caldwell, does it boil
down to the fact that you wanted somebody there to
verify what you had said or what Mr. Schneider had
said?
A. Yes, I felt like I needed someone with me.
Although Caldwell did not testify that she had any
understanding with any other employee about refusing to
meet with Schneider alone, Peggy Fortner testified that on
April 8, after she had declined a request to report to the
office, she had a discussion with Caldwell about the
subject and "we had decided that we would rather not go
alone."
On the two occasions that Ned Miller refused to report
to the office he informed his supervisor that "we had
elected a 3-man committee-Jack Barnes, Wilburn
Warren, and myself-and that we would go in and talk to
him [Schneider]." During one of these conversations with
his supervisor, Miller was informed that Jack Barnes had
been in the office and had talked to Schneider. Miller
responded that Barnes "wasn't supposed to do that
because we had elected a three-man committee to talk to
Mr. Schneider.""
When Richard Williams was summoned to the office on
April 8 and 11, he refused to go unless the two employees
with whom he worked accompanied him. As to his
reasons, Williams testified it was "[b]ecause we had all
gotten together and agreed on it."
Albert Schneider testified that between April 7 and 8 he
spoke with 14 or 15 employees who had participated in the
strike of April 2. According to Schneider, he asked the
employees "did they plan to come to work, or did they not
plan to come to work, if there was going to be another work
stoppage." In these conversations he advised the
employees that he was concerned with being able to
operate the plant effectively on the succeeding Saturday,
April 9. He then asked each employee if the employee had
any questions and promised that he would answer the
questions honestly and to the best of his ability. As a result
of this invitation various subjects were raised and
discussed including subjects relating to the Union and to
organizational problems. Schneider did not attempt to
summarize any one conversation with any of these
employees, however, he testified that the average
conversation lasted from 15 to 30 minutes. The only
employee who testified concerning his conversation with
Schneider was Jack Barnes. Barnes credibly testified that
his meeting with Schneider lasted from 25 to 30 minutes,
and that during the meeting he was not asked whether he
intended to report to work on Saturday, April 9. According
to Barnes, his discussion with Schneider related to what he
"hoped to gain by his union activities" and similar topics.
While the refusal by each of the three employees to
report alone to Schneider's office on April 11 was the
ostensible reason for Schneider's decision to terminate
their employment, nevertheless, Respondents' contention
that such alleged insubordination was the sole basis for the
decision ignores the operative influence of the antecedent
events upon such decision. The 3 employees had joined
some 47 other employees in a 1-day strike on Saturday,
April 2. Beginning on Monday, April 4, on Schneider's
13 Miller's refusal to confer with Schneider unless accompanied
by the other two members of the committee suggests that Miller
believed Schneider wished to speak to him about matters
touching upon the employees ' organizational activities
14 See Republic Aviation Corporation v N L R B., 324 U S 793
15 See Blue Flash Express, Inc, 109 NLRB 591. But see
883
instructions, the strikers were questioned by their
supervisors as to why they had been absent from work and
they candidly answered that they were protesting the
Company's unlawful refusal to bargain with the Union as
well as Pennell's discharge. On April 7 and 8 Schneider
summoned the employees who had participated in the
April 2 strike to his office. He testified that his purpose for
interviewing these employees was to inquire whether they
would join another strike on April 9, if one were to be
called. However, this testimony does not unfold the whole
picture. The supervisors could readily have made such
inquires directly. The employees had not been reticent
about advising their supervisors why they had remained
away from work on April 2 and Schneider had no reason to
believe that they would be any less frank in responding to
inquiries by their supervisors as to whether they would
support a strike on April 9 than they would be in
answering the same question if posed by himself. Thus,
Schneider must have had some more compelling reason
for wishing personally to interview the April 2 strikers,
which is further evidence by the following:
1. During each interview, which lasted from 15 to 30
minutes, Schneider invited discussion of subjects other
than whether the employee intended to support a strike on
April 9, and, in fact, discussed the Union and
organizational matters with some of the employees whom
he interviewed.
2. Barnes testified, without contradiction, that during
his interview with Schneider the latter did not ask him
whether he was going to report for work on April 9. This
indicates that Schneider was so much concerned about
discussing union matters and subjects related to the
employees' organizational activities and so leittle
concerned with discovering whether the employees were
going to support a strike on April 9 that, at least in the case
of Barnes, he completely overlooked the fact that the
supposed purpose of the interview was to ascertain
Barnes' attitude towards supporting a strike on April 9.
3. If the sole purpose of the interviews was to inquire of
the employee whether they would support a strike on
April 9, no explanation is given as to why Schneider did
not permit Caldwell, Miller, and Williams to have the
company of another employee during the requested
interviews. Certainly, that simple question could have
been asked each of them in the presence of another
employee as well as while they were alone with Schneider.
The reasonable inference to be drawn from these
circumstances is that Schneider intended to take
advantage of the opportunity for private discussions with
the employees to attempt to wean their allegiance away
from the Union and to win them over to the Company's
point of view.
Management's right to direct employee conduct is
subject to the limitations of the Act." On April 8,
Schneider sought to question Caldwell, Miller, and
Williams about matters falling within the ambit of
Section 7; namely, about their intentions to engage in a
strike. While such queries might not violate the Act if
made with proper safeguards under appropriate
circumstances,15 employees have a protected statutory
NLRB. v M & B Headwear Co, Inc, 349 F 2d 170 (CA 4),
where the court observed , "Whenever a high executive calls
production line workers into his office and questions them about
their union activity in an atmosphere of `unnatural formality,'
there is inevitably an implication of coercion [Citing Bourne v
N.L R.B., 332 F 2d 47,48 (C A 2)1"
298-668 0-69-57
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
right to refuse to answer such questions. 16 If, as was the
case here, the employees have reason to believe that they
are being called to the office for interviews concerning
their organizational activities, they are similarly protected
in their refusals to report." The refusals by Caldwell,
Miller, and Williams to report alone to Schneider's office
on April 11, stand essentially on the same footing as their
declinations on April 8. According to Schneider, he
intended to reprimand them for their alleged
insubordination in not reporting on April 8. However, such
reprimand was not properly in order as the employees on
April 8 were exercising their statutory rights in refusing to
report to the office. Their discharges on April 11,
therefore, "arises out of, or may be reasonably attributed
to [the fact that the employees were] pressing their rights
under the Act, the Act specifically makes such discharges
unfair labor practices.""'
A further basis for my findings that the three discharges
were unlawful arises from the fact that Schneider's
explanation that the sole reason for terminating Caldwell,
Miller, and Williams was their failure to report to his office
when summoned is not convincing in view of all the
circumstances. The need for severe disciplinary measures
directed against the three employees because they did not
report to his office when summoned, according to
Schneider, was his fear that such insubordination "meant
that we were losing all control over how we were going to
operate the plant."" Such fear appears to have been
grossly exaggerated when, according to Schneider's
testimony, at no time prior to April 8, 1966, had any
employee failed to respond to a summons by any
supervisor. Furthermore, the employees who declined to
report to his office were not openly defying his directions
but only requested that theLbe permitted the company of
another employee during the interviews. These requests
were directed to the supervisors who summoned them to
the office and the employees were never advised that their
requests were deemed to be insubordinate or even
impertinent . Therefore, discharge, in these circumstances,
was not only unexpected by the employees but was a
harsh penalty to attach to their alleged misconduct,20
particularly as there is no evidence that their failure to
report for the interviews in any way adversely affected the
Company's operations or that these employees were
otherwise unsatisfactory. The fact that Caldwell, Miller,
and Williams were summarily discharged without being
warned as to the probable consequences of their
persistence in refusing to meet with Schneider in private21
reveals not that the Company was taking vigorous action to
maintain plant discipline in the face of a legitimate basis
for believing that discipline was being undermined, but
that their alleged insubordination was being used as an
excuse for effecting their terminations and thus ridding
the Company of three militant union adherents. In the
light of the Company's opposition to the organization of its
employees, its hostility to the union supporters among the
employees, and its unremedied unfair labor practices, the
discharges of Caldwell, Miller, and Williams, in the
circumstances described above, violated Section 8(a)(3) of
the Act and constituted restraint, coercion, and
interference with the rights of employees guaranteed in
Section 7, in violation of Section 8(a)(1).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondents set forth in
section III, above, occurring in connection with the
16 See Revere Copper and Brass, Incorporated, 138 NLRB 1377,
1391, enfd 324 F 2d 132 (C A 7), Montgomery Ward and Co ,
Incorporated, 154 NLRB 1197, fn 2,1262
" Company orders infringing upon Section 7 rights may not
lawfully be enforced by discharge See Revere Copper and Brass,
Inc., supra Here the employees were not advised as to why they
were being summoned , therefore, when they declined to report to
the office they took the risk that they were correct in their
assumptions that the purpose in calling them was to question
them about matters relating to their union or organizational
activities See N L R B v Burnup and Sims, Inc , 379 U S 21
However, in this case, the employees rightly assumed that the
reason for the requested meetings was to speak to them about
their self-organizational activities Thus, it would have been
unlawful for the Company to have discharged Caldwell, Miller,
and Williams for their refusals on April 8 to report to the office for
private meetings with Albert Schneider.
Respondents argue that the work stoppages of April 2 and 9
were unprotected because they were of the same type which the
Supreme Court found to be unprotected in International Union,
U.A W, Local 232 v Wisconsin Employment Relations Board
(Briggs & Stratton Corp ), 336 U S 245 It is open to question
whether these work stoppages were outside the protective scope
of Section 7 See N L.R B. v Insurance Agents ' International
Union, AFL-CIO (Prudential, Ins Co ), 361 U S 477, 493, fn 23,
The Dow Chemical Company,'152 NLRB 1150 Furthermore, in
this case, as the work stoppages were reasonably responsive to
the Company's persistent and unlawful refusal to recognize and to
bargain with the Union, the recurrent character of the otherwise
protected strike activity does not place such activity outside the
pale of statutory protection. As the Supreme Court observed in
Mastro Plastics Corp. v N.L.R B., 350 U S 270, 287, "There also
is inherent inequity in any interpretation that penalizes one party
. for conduct induced solely by the unlawful conduct of the
other, thus giving advantage to the wrongdoer."
11 Culler Gin Company, Inc v. N L R B, 179 F,2d 499,501-502
(C A 5), reversed so as to enforce the Board's Order in full 340
U S 361
14 No reason was given by Schneider as to why he anticipated
that there would be a proliferation of insubordinate acts if
Caldwell, Miller , and Williams were not discharged However,
Schneider gave the following explanation as to why he considered
the alleged insubordinate conduct by the three employees to be a
serious breach of discipline:
I don't see how anyone charged with the responsibility for a
large plant, manufacturing plant; and calling an
employee-hiring employees between four and five hundred
people can carry out the responsiblity encharged to him by
the stockholders and owners of that Company, whatever it
might be, in an effective and efficient manner, how he can
plan his production program, how he can plan production
techniques , how he can plan anything at all that pertains to
an efficient manufacturing operation unless he is able to
communicate freely with his people, unless he is able to
discuss things with his employees as he wishes where he
wishes and when he wishes , provided it is not an
inconsiderate request or an unusual request in any way
20 It is noted that Caldwell worked for the Company 5 years,
Williams 2 years, and Miller 1 year prior to their discharges
21 The requests on the part of Caldwell, Miller, and Williams
for the company of a fellow employee during the requested
interviews with Schneider were not unreasonable when it is
considered that they never previously had been called to meet
with Schneider alone and that the Company's prior unfair labor
practices might well (as Caldwell testified it did in her case) have
caused them to fear that the purpose of the interviews was to set
the stage for their later discharges because of their union
activities or to compel them involuntarily to engage in a
discussion with their employer about the Union See Finesilver
Manufacturing Company, 159 NLRB 923
SCHNEIDER MILLS 885
operations of the Respondents described in section I,
above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in
unfair labor practices, I shall recommend that they cease
and desist therefrom and that they take certain affirmative
action designed to effectuate the policies of the Act. For
reasons which are stated in Consolidated Industries, Inc.,
108 NLRB 60, 61, and cases there cited, I shall
recommend a broad cease-and-desist order.
Having found that the Respondents unlawfully
discharged Eula Caldwell, Ned Miller, and Richard
Williams on April 11, 1966, I shall recommend that the
Respondents offer each of them immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights
and privileges, and make each of them whole for any loss
of earnings he may have suffered by reason of the
discrimination against him, by payment to him of a sum of
money equal to that which he would have earned from the
date of the discrimination against him to the date of
Respondents' offer of reinstatement, less his net earnings
during such period. The backpay provided herein shall be
computed on the basis of calendar quarters, in accordance
with the method proscribed in F. W. Woolworth Company,
90 NLRB 289. Interest at the rate of 6 percent per annum
shall be added to such net backpay and shall be computed
in the manner set forth in Isis Plumbing & Heating Co.,
138 NLRB 716.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. By discriminating in regard to the hire and tenure of
employment of Eula Caldwell, Ned Miller, and Richard
Williams to discourage membership in the Union, and
thereby interfering with, restraining , and coercing
employees in the exercise of the rights guaranteed in
Section 7 of the Act, the Respondents have engaged in
unfair labor practices within the meaning of Section 8(a)(1)
and (3) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
3. Respondents have not engaged in any unfair labor
practices by reason of the conduct alleged in the complaint
to have been in violation of the Act except insofar as such
conduct has been found hereinabove to have violated
Section 8(a)(1) and (3) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law and the entire record in the case, and pursuant to
Section 10(c) of the Act, I hereby recommend that
Respondents Schneider Mills, Inc., and Jimmy and Josh,
Inc., Taylorsville, North Carolina, their officers, agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Textile Workers Union
of America, AFL-CIO, or any other labor organization, by
discharging any employees or in any other manner
discriminating against any employees in regard to their
hire, tenure of employment, or any term or condition of
their employment.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-
organization , to form labor organizations, to join or assist
the above-named Union, or any other labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer to Eula Caldwell, Ned Miller, and Richard
Williams immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to
their seniority or other rights or privileges, and make each
of them whole in the manner set forth in the section of this
Decision entitled "The Remedy," for any loss of earnings
he may have suffered by reason of Respondents'
discrimination against him.
(b) 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 relevant to a determination of the amount of
backpay due to said employees.
(c) Notify Eula Caldwell, Ned Miller, and Richard
Williams if presently serving in the Armed Forces of the
United States of their 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.
(d) Post at its plant in Taylorsville, North Carolina,
copies of the attached notice marked "Appendix."22
Copies of said notice, to be furnished by the Regional
Director for Region 11, after being duly signed by the
Respondents' representative, shall be posted by
Respondents 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 the Respondents to insure that said notices
are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 11, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.23
tz 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 "
23 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify the
Regional Director for Region 11, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to
comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
WE WILL NOT discourage membership in Textile
Workers Union of America, AFL-CIO, or any other
labor organization , by discharging any of our
employees or in any other manner discriminating
against any of our employees in regard to their hire,
tenure of employment , or any term or condition of
their employment.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
their rights to self-organization , to form labor
organizations , to join or assist the above-named
Union, or any other labor organization , to bargain
collectively through representatives of their own
choosing , and to engage, in other concerted activities
for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any or all
such activities.
WE WILL offer Eula Caldwell , Ned Miller, and
Richard Williams full reinstatement to their former or
to substantially equivalent positions , without
prejudice to their seniority and other rights and
privileges, and make them whole for any loss of
earnings they may have suffered by reason of their
unlawful discharges.
SCHNEIDER MILLS, INC., AND
JIMMY AND JOSH, INC.
(Employer)
Dated By
(Representative ) (Title)
Note: We will notify Eula Caldwell, Ned Miller, and
Richard Williams if presently serving in the Armed Forces
of the United States of their right to full reinstatement
upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act,
as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 1624 Wachovia
Building, 301 North Main Street, Winston-Salem, North
Carolina 27101, Telephone 723-2911.