Sikes Corp.

National Labor Relations Board - Board Decisions

Nov 7, 1975

221 N.L.R.B. 416 (N.L.R.B. 1975)

416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Florida Tile Company, Subsidiary of Sikes Corp. and
International Association of Machinists and Aero-
space Workers , AFL-CIO. Case 9-CA-8821
November 7, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On June 6, 1975, Administrative Law Judge
Morton D. Friedman issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge to the
extent consistent herewith and to adopt his recom-
mended Order as modified herein.
The unfair labor practice charges in this case arose
from events in September 1974, at the beginning of
the Union's organizational campaign at the Respon-
dent's plant. The complaint alleged and the Adminis-
trative Law Judge concluded that the Respondent
interrogated employee Virginia Gentry concerning
union activities, in violation of Section 8(a)(1) of the
Act, and discharged employee Lois Moore because
of her union activities, in violation of Section 8(a)(3).
The Administrative Law Judge also found that the
Respondent had violated Section 8(a)(1) by warning
Moore not to engage in union activity.
In concluding that the Respondent interrogated
Gentry, the Administrative Law Judge relied solely
on her contradicted testimony, and he relied partly
on her testimony in concluding that the Respondent
discriminatorily discharged Lois Moore. For the
following reasons we find merit in the Respondent's
exceptions to the Administrative Law Judge's find-
ings crediting Gentry and we reverse those findings
insofar as they depend on Gentry's testimony.
Gentry testified that on September 8, 1974, the day
of the discharge, employee Moore asked her to sign
an authorization card. According to Gentry she
declined to sign but mentioned the incident to kiln
fireman Richard Royalty,' who later told her to
report to the shift supervisor, Bill Carmickle. Car-
We hereby grant the Respondent's Motion to Accept Addendum to
Respondent 's Exceptions, and we correct the Administrative Law Judge's
mistaken identification of Royalty as kiln foreman We also find merit in
the Respondent 's exception to the Administrative Law Judge's inference
that "foreman" Royalty, if called as a witness , would have contradicted
221 NLRB No. 70
mickle allegedly asked her if Lois Moore had
approached her about signing an authorization card
and inquired whether anyone else had signed a card.
Gentry also testified that on the same day, finding
the employees' pay telephone out of order, she
received Carmickle's permission to use a telephone in
the supervisors' office. While phoning, she allegedly
saw on an empty desk (not Carmickle's desk) a
handwritten list of the names of the five employees,
including Lois Moore, who had attended an initial
union meeting the night of September 5.
Gentry further testified about the quality of
Moore's work as a boxmaker. Gentry said that when
she worked in the sorting room she had never had
any problem with Moore's work and that she had
overheard Carmickle praising Moore. Gentry also
insisted that she had observed Moore's work perfor-
mance through a window connecting the sorting
room, where Moore worked, with the storage area,
which was Gentry's usual station.
While declining to accept some of Gentry's
statements about the quality of Moore's work, the
Administrative Law Judge credited the balance of
Gentry's testimony on the basis of her "very apt
recall," her "testimonial demeanor," and her
"positive manner." In crediting Gentry, the Adminis-
trative Law Judge either discredited or disregarded
conflicting testimony of several other witnesses.
The Board normally defers to the credibility
resolutions of the Administrative Law Judge, unless
the clear preponderance of all the relevant evidence
convinces us that his resolutions are incorrect.2 In
this case we are constrained to find that the evidence
does preponderate against the Administrative Law
Judge's credibility resolutions concerning Gentry.
As noted, the Administrative Law Judge rejected
some of Gentry's testimony that Moore was an
outstandingly efficient employee and concluded that
she tended to exaggerate in some respects. And other
aspects of her testimony cast doubt upon its
reliability.
Concerning the quality of Lois Moore's work,
Gentry acknowledged on cross-examination that on
September 23, 1974, she had written a letter to Bill
Auvil, Jr., a former employee and frequent corre-
spondent, telling him, "Yes, Lois Moore got fired.
Her work record left a lot to be desired. . . . But she
was up to her neck in the business of trying to get the
Union in here. . . . But her termination was because
of her yellow slips ." Gentry testified that this passage
Carmickle 's testimony about the interrogation
2 Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F.2d
362 (C.A. 3, 1951); Salant & Salant, Incorporated 92 NLRB 417 (1950);
Avon Convalescent Center, 209 NLRB 937 (1974).
FLORIDA TILE COMPANY 417
merely repeated the reason which she had heard for
Moore's discharge.
The Administrative Law Judge accepted Gentry's
explanation. Gentry's testimony is difficult to recon-
cile, however, with her November 14, 1974, affidavit,
in which she stated: "I felt like perhaps the
termination was due to her Union activities altho'
they stated it was her work, but on the day of her
termination . . . the boxmaking was caught up
.... If Gentry actually felt this way about
Moore's termination, she would surely have con-
veyed her views in the personal letter to Auvil,
instead of simply repeating the reason she had heard
from others. In testifying, Gentry volunteered the
observation that 95 percent of the talk at the plant
was rumor and that Auvil would have recognized her
letter as such. Neither counsel for the General
Counsel nor the Union's representative took the
opportunity, however, to pursue Gentry's comment
and bolster her explanation of the letter.
The Administrative Law Judge discounted the
apparent inconsistency between the letter and Gen-
try's other statements about Moore's work with the
observation that the excerpts from the letter were
taken out of context. Since the entire letter was not
placed in evidence, we have no way of knowing on
what basis the Administrative Law Judge so conclud-
ed. In fact, the record indicates that nothing in the
letter itself supported Gentry's explanation that she
was only relaying a rumor. When confronted with
counsel's observation that she had not indicated in
the letter that the statements were quotations, the
following exchange occurred:
A. (Continued) Would you like for me when-
ever I write a letter to Little Bill say "I heard this
rumor"? Because Little Bill worked at the plant
the same as I did, and knew that 95% of anything
that went around the plant was rumor. -
Q. Well, that hasn't been established,, either,
that he knew it or 95% of what was said around
the plant was rumor. But anyway you didn't
indicate to him that you thought that was a
statement. You just said that her work left a lot to
be desired.
A. That is exactly what I said.
In these circumstances we think it was incumbent
upon the General Counsel, as the party whose
witness Gentry was, to show in the record wherein
the apparently inconsistent statements did not truly
represent the contents of the letter when read in its
entirety. Having had the opportunity to do so, the
General Counsel declined to attempt such a showing
and has never made such an argument in this case.
We think, therefore, that as the record stands it
clearly preponderates toward the conclusion that
Gentry was not averse to testifying contrary to her
privately held beliefs.
On the question of Gentry's observation of Moore
through the sorting room window, the Respondent
presented a blueprint of the plant and testimony to
the effect that from her desk Gentry could only have
seen Moore at a distance of approximately 200 feet,
through an 18- by 24-inch window partly occupied
by a conveyor belt-a view which usually was
blocked by a mechanized transfer car. The Adminis-
trative Law Judge noted this evidence but found that
he could not completely discredit Gentry's testimo-
ny, since she had explained that she made her
observations from a point between the window and
the transfer car. How much of Moore's work she
would be able to observe under this explanation is
subject to question because Gentry would have to
leave her normal work station to make the observa-
tion. Moreover, the Administrative Law Judge's
finding apparently ignored the evidence that Gentry
would still have had to peer through a small window
designed only as a passage for the conveyor belt
carrying tile into the sorting room. Assuming she
could see past the conveyor belt, Gentry would have
had to judge, from 20-60 feet away, Moore's
performance of an operation which involved stamp-
ing boxes with the proper code numbers, several
digits long.
Finally, at the end of her cross-examination,
Gentry reluctantly conceded that, "apart from Gov-
ernment witness fees and transportation expenses,
someone telephoned and offered her husband $100 if
she would testify. In assessing Gentry's credibility
the Administrative Law Judge gave no indication
that he considered the import of this testimony.
Because of-the serious, unresolved flaws in Gen-
try's testimony, we 'find that we cannot credit it
where it stands contradicted.3 Accbrdingly, since
Gentry alone testified about her interrogation, and
Carmickle contradicted her, we must reverse the
finding that the Respondent violated Section 8(a)(1)
by interrogating Gentry.
The Administrative Law Judge also found, howev-
er, on the basis of Lois Moore's uncontradicted
testimony, that, while escorting Moore from the
plant, Carmickle demanded one of the authorization
cards and said, "I don't think this was, a very smart
thing for you all to do, passing those out on my
shift." The Administrative Law Judge concluded,
and we agree, that this conduct constituted a
violation of Section 8(a)(1).
3 Member Jenkins does not rely on the correspondence between Gentry
and Auvil in reaching his conclusion
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The finding that the Respondent discharged Lois
Moore because of her union activities does not
depend on Gentry's testimony. While Gentry's
account of the alleged interrogation might have
helped to establish the Employer's knowledge of
Moore's union activities, there remains the credited
testimony of employee James Price, Carmickle's
cousin, who stated that on September 7 he told
Carmickle about the union meeting and the five
employees who had attended. There also remains
Moore's testimony that, at noon on September 7,
Carmickle saw Moore and one other employee
distributing authorization cards.
Gentry's testimony, if credited, might also have
helped to rebut the Respondent's evidence that
Moore was discharged because of her poor work
performance. Even without Gentry's testimony,
though, we find persuasive evidence that Moore's
work was not so unsatisfactory as to justify her
sudden discharge, 3 days after the initial union
meeting and 1 day after Supervisor Carmickle
learned of Moore's union activities. Moore's last
performance rating sheet, signed June 10, 1974,
discloses that Carmickle graded her above average in
every category and cited her improved attitude and
performance. Carmickle conceded that when he
observed Moore's allegedly defective work on the
day of her discharge he was in the sorting room for
"just a second" before he had to leave. Furthermore,
Carmickle did not contradict Moore's account of
their conversation at the time of her discharge.
According to Moore, Carmickle said she was being
terminated because of the way she did her job that
day; Moore replied that there was no shortage of
boxes and that she thought she was being fired
because she passed out union literature. Then, by
Moore's account, Carmickle said that he was doing
what he was told to do and that he would escort her
from the plant. As they were leaving the building,
according to Moore, Carmickle asked for the
authorization card and made his remark that it was
not very smart to have passed out the cards on his
shift.
In light of all the credible evidence presented at the
hearing, we affirm the Administrative Law Judge's
finding that the Respondent discharged Lois Moore
in violation of Section 8(a)(3).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Florida Tile Co., Subsidiary of Sikes Corp.,
Lawrenceburg , Kentucky , its officers , agents , succes-
sors, and assigns , shall take the action set forth in the
said recommended Order , as so modified:
1. Delete paragraph 1(a) and reletter the remain-
ing paragraphs accordingly.
2. Substitute the following for paragraph 1(c)
(paragraph 1(d) of recommended Order):
"(c) In any other manner interfering with , restrain-
ing, or coercing its employees in the exercise of their
rights to form , join , or assist or to be represented by
International Association of Machinists and Aero-
space Workers , AFL-CIO, or any other labor
organization , to bargain collectively through repre-
sentatives of their own choosing, to engage in other
concerted activity for the purposes of collective
bargaining, or other mutual aid or protection, or to
refrain from any or all such activities."
3. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the complaint herein
be, and it hereby is, dismissed insofar as it alleges
unfair labor practices not found herein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the
opportunity to present their evidence, the National
Labor Relations Board has found that we violated
the National Labor Relations Act and has ordered us
to post this notice, and we intend to carry out the
order of the Board and abide by the following:
WE WILL NOT threaten our employees with
reprisals if they engage in union activities on
behalf of the International Association of Ma-
chinists and Aerospace Workers, AFL-CIO, or
any other union.
WE WILL NOT discharge any of our employees
because they engage in union or any other
protected concerted activities.
WE WILL offer Lois M. Moore immediate and
full reinstatement to her former or a substantially
equivalent position, without prejudice to her
seniority or other rights and privileges, and wE
WILL make her whole for any loss she may have
suffered as a result of our discrimination, against
her in discharging her for engaging in union
activities. '
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
your right to form, join, or assist or to be
represented by the International Association of
Machinists and Aerospace Workers, AFL-CIO,
FLORIDA TILE COMPANY 419
or any other labor organization, to bargain
collectively through representatives of your own
choosing, or engage in other protected or concert-
ed activity for the purposes of collective bargain-
ing, or other mutual aid or protection, or to
refrain from any or all such activities.
FLORIDA TILE COMPANY,
SUBSIDIARY OF SIKES
CORP.
DECISION
CIO, the Charging Party herein , herein called the Union, is
a labor organization as defined in Section 2(5) of the Act.
However , I take official notice of the fact that the Board
has held the said organization to be a labor organization
within the meaning of the Act upon many occasions. Some
of the cases which so hold have been issued by the Board
within the 6 -month period preceding the issuance of the
complaint herein.2
Accordingly, without the necessity of considering any of
the facts herein with regard to the Union's activities in
relation to the Respondent's employees, I find and
conclude that the Union is and has been a labor
organization as defined in Section 2(5) of the Act.
STATEMENT OF THE CASE
MORTON D. FRIEDMAN , Administrative Law Judge: This
proceeding was heard on February 20, 1975 , at Lexington,
Kentucky, on the complaint of the General Counsel issued
December 31, 1974 , which complaint was based on a
charge filed on September 30, 1974.1 The complaint
alleges , in substance , that the Respondent violated Section
8(a)(1) and (3) of the Act in discharging an employee for
engaging in union activity and violated Section 8(a)(1) of
the Act by interrogating an employee with regard to her
union activity and the union activity of fellow employees.
The answer , while admitting certain allegations of the
complaint, denies the commission of any unfair labor
practices . At the close of the hearing, the parties waived
oral argument but thereafter submitted briefs in support of
their respective positions.
Upon the entire record, and from my observation of the
demeanor of the witnesses , and with due consideration
given to the contentions advanced by the parties in their
briefs, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Although the -Respondent denies that it is an employer
engaged in commerce within the meaning of the Act, it
admits in its answer that it is a Florida corporation
engaged in the manufacture of ceramic tile at its plant
located at Lawrenceburg , Kentucky, and that during the
year immediately preceding the issuance of the complaint,
a representative period , it had a direct inflow of goods and
materials in interstate commerce valued in excess of
$50,000 which it purchased and caused to be shipped from
points outside the State of Kentucky directly to its
Lawrenceburg , Kentucky, plant.
Accordingly , I find and conclude that the Respondent is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Respondent in its answer denies that International
Association of Machinists and Aerospace Workers, AFL-
i Although the Respondent in its answer denied knowledge as to whether
the unfair labor practice charge was filed as noted , it is apparent from the
exhibits received in evidence at the hearing that the charge was filed on the
date stated and that it was served in due course in a timely fashion on the
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges, in substance , that the Respon-
dent, through its supervisor, Bill Carmickle , discharged
employee Lois M. Moore for engaging in union activity on
behalf of the Union and, furthermore, that Carmickle also
interrogated an employee with regard to the said employ-
ee's union activities and the union activities of others. The
Respondent denies the commission of these alleged unfair
labor practices and affirmatively contends that it dis-
charged Moore for cause inasmuch as Moore's work
performance was below the standard required by the
Respondent. Furthermore, the Respondent denies that
Carnckle in any way interrogated any employee with
regard to that employee's union activity or the union
activity of other employees.
Accordingly, the issues as framed by the pleadings are as
follows:
1. Whether Carmickle interrogated an employee with
regard to union activities in violation of Section 8(a)(1) of
the Act.
2. Whether Respondent discharged Lois Moore for
engaging in union activity in violation of Section 8(a)(3) of
the Act.
As is usual in cases of this nature, a basic issue is the
credibility of the various witnesses presented by both the
General Counsel and the Respondent , the resolution of
which, in large measure , resolves the foregoing principal
issues.
B. The Facts
Lois M. Moore, at the time material herein , had been a
boxmaker in the Respondent 's sorting department from
approximately the first week in January 1974. Essentially,
the duties of the boxmaker were to form the boxes and
stamp them with the proper grade and color code and
furnish them in sufficient quantities so that the sorters, the
individuals who worked on the line sorting the tiles which
came from the kilns, would be able to place the tiles in the
boxes for eventual shipment in such a manner as not to
impede the progress of production.
2 Local Lodge No 1994, IAM (O K Tool Company, Inc.), 215 NLRB No.
110 (1974); Cooper-Hewit Electric Company, Inc. and Sperti Drug Products,
Inc., 215 NLRB No. 60 (1974).
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the early weeks of September 1974, Moore met with
her cousin, Darnell Devers, a Grand Lodge representative
of the Union, with regard to the possible organizing of the
employees at the Respondent's plant. As a result of this
meeting , Devers explained that a meeting would have to be
arranged at his office with the other employees. Thereafter,
Moore spoke to a number of the employees and five of
them met in Devers' office, with Devers, on the night of
September 5, 1974.
In addition to Moore, the employees who attended were
Daisy Summers, Vicki Trent, Sandy Roberts, and Mary
Brown . At the meeting, Devers gave the ladies union
leaflets and union cards to give to their fellow employees.
On Friday, Saturday, and Sunday, September 7, 8, and 9,
Moore passed out these leaflets and solicited signatures for
union designation cards. She made this distribution on her
8 a.m. break and at lunchtime.
On Saturday, September 7, at lunchtime, Moore was
giving literature to a fellow employee at which time other
employees in the immediate area started to shout, "There's
Bill. There 's Bill," referring to Supervisor Bill Carmickle,
who had come into the sorting room and stood approxi-
mately 12 to 14 feet away from Moore.3
On that same day, Saturday, September 7, another
employee, James Price, learned of the union meeting on
September 5. Price, not a supporter of the Union, is related
to Supervisor Carmickle. Upon learning that some of the
employees had met with the union representative, Price
voluntarily informed Carmickle of names of the employees
who attended the meeting. He was given this information
by employee Vicki Trent .4 It should be noted, however,
that Price, in testifying, stated that there were other
employees who received warning slips and whose names he
gave to Carmickle as attending the union meeting, who are
still working for the Respondent. He named in this respect
Vicki Trent and Sandy Roberts. Furthermore, there was
nothing in Price's testimony to the effect that he knew
Moore to be the one who activated the union movement.
At the time of the events herein, September 1974,
Virginia Gentry, a former employee of the Respondent
now living in Florida, was working in the kiln department
which is physically located next to the sorting room. On
Sunday, December 8, at approximately noon, while she
was working on the same shift as was Moore, Moore read
to Gentry from union literature and asked Gentry to sign a
union card . Gentry refused, saying she did not have
anything against the Union but that she did not wish to
become involved. When Gentry returned to the kiln
department, presumably after lunch, she related the
incident to Richard Royalty, the kiln foreman. Not long
thereafter , Royalty came back from out of the department
and informed Gentry that Supervisor Carmickle wanted to
see her in Carmickle's office. When Gentry arrived in
3 All of the foregoing from uncontroverted credited testimony of Moore.
Although Carrmckle denied that he had any knowledge of Moore's union
activities , he did not specifically deny that he had been in the presence of
Moore in the sorting room at the time stated For this and other reasons
hereinafter set forth, I credit Moore.
4 From credited testimony of Price. Price is still employed by the
Respondent, is not a union adherent, and had nothing to gain by testifying
to the foregoing. Carmickle, in testifying, stated that Price was a distant
relative who was always talking and to whom he paid little attention.
Carnuckle testified he could not remember whether Price gave him this
Carmickle's office,, Carmickle asked her if Moore had
approached Gentry about the Union and had asked her to
sign a union card. Gentry answered in the affirmative and
informed Carmickle that she did not sign and did not want
to become involved. Carmickle then asked if Gentry knew
if anyone else had signed a card. Gentry answered that she
did not and that she only heard rumors that had no bearing
on anything.
Later that day, about 3 p.m., Gentry attempted to use the
pay telephone in the plant to call her home and discovered
that the pay telephone was out of order. She then asked
Carmickle if she could use the phone in his office.
Carmickle assented. While Gentry was using the phone,
she observed a paper on the desk on which the phone was
located. On the paper was a list of five names. These were
the names of the individuals who had attended the union
meeting on September 5.
The foregoing facts with regard to Gentry's conversation
with Carmickle and her observation of the list of names on
a desk in Carmickle's office when she made the telephone
call are adopted from Gentry's testimony. The Respondent
makes serious attacks upon Gentry's testimony and upon
her credibility generally. Because this testimony constitutes
the keystone of the case presented by the General Counsel,
it is well at this point to discuss and resolve the credibility
issue with regard to Gentry.
Respondent contends that Gentry's testimony is not to
be credited for a number of reasons. The first of these
relates to the filing of the original charge herein and the
written refusal of the Regional Director to issue a
complaint on the basis of his investigation into the charge.
The Regional Director refused initially to issue a complaint
because his investigation failed to reveal union animus and
because it appeared that, although the Respondent had
knowledge of Moore's union activities, such activities were
minimal and the Respondent was also aware of the
prounion sympathy of other employees who were not
discharged. Additionally, the Regional Director stated the
investigation revealed that Moore received a number of
written warnings about her work, and was not performing
her work satisfactorily on the day of her discharge.
After receiving the notice of refusal, the Charging Party,
a short time thereafter, supplied to the Regional Director
an affidavit executed by employee Gentry which supplied
the missing factors recited by the Regional Director and
which gave to him sufficient basis upon which to issue a
complaint. To quote the Respondent, "This affidavit was
dated November 14, 1974, 9 days after the letter from [the
Regional Director], refusing to issue a complaint. Thus, in
one fell swoop of the pen, employee Gentry supplied all of
the elements the Regional Director found crucial in, his
decision to dismiss the complaint. Indeed, she supplied the
missing interrogation, the 8(a)(1) conduct which the
information. Despite his not remembering whether Price gave him the
information above set forth, Carmickle steadfastly maintained that he had
no knowledge whatsoever of Moore's union activity during the critical
period or at any other time In fact, he stated that he had no knowledge of
any union activity on the part of any employee. Inasmuch as Price is still an
employee, has nothing to gain by the testimony, and is not, sympathetic to
the Union, I credit Price's testimony in full as against Carmickle's
dismissing of Price as a distant relative who talked so much that Carnuckle
seldom paid attention to what he was saying.
FLORIDA TILE COMPANY
Regional Director indicated was an essential element in his
decision to refuse to issue a complaint."
The material in the affidavit is similar to the testimony
which Gentry recited at the hearing, and which is factually
set forth heretofore. Gentry admitted in connection
therewith, upon cross-examination, that she was a friend of
Moore's. She further admitted in testifying that on the day
that Moore was discharged, as hereinafter described,
Moore visited Gentry's home and informed the latter of the
discharge . They discussed the matter at that time.
Nevertheless, Gentry did not, according to her own
testimony, mention the fact that she had had a conversa-
tion with Royalty in which she informed the latter that
Moore had read union material to her and had solicited
Gentry's signature on a union authorization card. Nor did
Gentry mention to Moore at that time that thereafter
Royalty informed Gentry that Carmickle desired to see her
and that Carmickle interrogated her as set forth above.
When Respondent' s counsel questioned Gentry asking
why she did not mention this to Moore upon discussing
Moore's discharge on the very day and within a few hours
after Moore was discharged, Gentry answered that she did
not think it was important at that time.
General Counsel seeks to support Gentry's answer and
argues that Gentry should be credited because, in fact,
Gentry is not an attorney nor, sophisticated in labor
relations matters and it is entirely believable that she did
not realize the importance of these matters when she spoke
to Moore on the date of Moore's discharge.
The Respondent next points out that Gentry also failed
to mention to Moore within 3 hours after Moore was
discharged and the discharge was being discussed that
Gentry had made a phone call from Supervisor Carmick-
le's office and, during that phone call, had seen the list of
the individuals who attended the union meeting of
September 5 on a desk in that office. It should be noted in
connection therewith that Gentry admitted, and by her
description of the room substantiated, that the desk on
which she allegedly saw the list of names was not
Carmickle's desk. Furthermore, Respondent produced, as
a witness , Leslie A. Bloom, an official of the telephone
company, who stated that his company had not received a
report that the pay telephone at Respondent's plant was
out of order on September 8. However, upon cross-
examination , Bloom, whom I credit as a completely
disinterested witness, admitted that there ^ were no long-
distance calls made from that pay phone on September 8
but that the company's records show that long-distance
calls were made on the said pay phone on September 7 and
9. He also admitted that sometimes phones adjust
themselves when they are out of order and, furthermore,
although they received no request to repair the phone on
September 8, it is possible that the phone could have been
out of order on that day and that the adjustment could
have been made from the central office without having to
make the repair at the Respondent 's premises . According-
ly, in this respect I fmd Bloom's testimony to have been
indecisive ' with regard to the question of whether the pay
phone was out of order on the day in question. I therefore
conclude that Gentry requested to use the phone in the
supervisors' office on that day.
421
Moreover, the Respondent maintains that it is incredible
to believe that if, in fact, Carmickle had planned to
discharge Moore for union activities, he would have left an
incriminating paper on a desk in the supervisors' office,
which, because of his other duties, he seldom visited, and
which was open to observation by any employee who
happened to come into the room. Respondent asserts that
this demonstrates that there actually was no list and that
the testimony of Gentry to this effect was either a figment
of her imagination or a deliberate attempt to supply
missing elements from the case, as the Regional Director
originally found it, in order to induce the issuance of a
complaint.
A further weapon in the attack upon Gentry's credibility
is aimed at Gentry's testimony to the effect that at the
times when she worked in the sorting room with Moore,
before Gentry was transferred to the kiln department, her
observation of Moore's work resulted in a positive reaction
that Moore did perform her work in a very satisfactory
manner and that she supplied the boxes to the sorters
without any difficulty and that the sorters received a
plentiful supply of the correct boxes from Moore at all
times. To overcome this testimony, on cross-examination,
Respondent's counsel read portions of letters which Gentry
wrote, subsequent to Moore's discharge, to a friend of
Gentry's, in which she stated that "Yes, Lois Moore got
fired. Her work record left a lot to be desired." Gentry also
wrote, "but her [Moores] termination was because of her
yellow slips." In each of these instances, however, Gentry
testified, when confronted with these exe"rpts from the
letters written to her friend, that she was merely quoting
the reasons given her by the Respondent's officials,
probably Carmickle, for Moore's discharge and that these
were not Gentry's own opinions. In assessing this portion
of the cross-examination of Gentry, it should be noted that
these quotations were taken out of context, the entire
letters were not read in evidence, Gentry was not
confronted with the balance of the letters so that she could
make a sufficient explanation, if there was such an
explanation, and, furthermore, the letters were neither
introduced into evidence nor shown to anyone else
concerned with the trial. Under these circumstances, I find
it difficult to utilize these seemingly contradictory state-
ments with regard to Gentry's assessment of Moore as a
worker because of the fact that the portions read to her
were taken out of context and Gentry's explanation would
seem to be logical under the circumstances.
Finally, ' Gentry testified that, on the day of Moore's
discharge, she observed Moore through the window
between the kiln department and the sorting room. It is
quite true, as the Respondent went to great lengths to
demonstrate, that the window was quite small, that it had a
mechanical belt going through it and that between the
position at which Gentry normally was stationed and the
window there were transfer cars on tracks which would
have blocked Gentry's view of what occurred in the
adjoining sorting room. However, again, I cannot com-
pletely discredit Gentry's testimony in this regard because,
in one respect, Gentry did explain her ability to observe
what was occurring in the sorting room. Gentry stated in
her testimony that if she were looking through the window
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between the two rooms she would stand in front of the
transfer car and not behind it. This would explain her
ability to see into the next room because in such a position
the transfer car would not have been between her and the
window but rather she would have stood between the
transfer car and the window. This would have enabled her,
despite other difficulties , to at least observe part of the
activities in the sorting room.
Needless to say, Carmickle denied that he ever compiled
such a list as Gentry mentioned which she found on the
desk in the room from which she made the alleged
telephone call on September 8. Carmickle , indeed, testified
that he had no knowledge of the union activities of any of
the ladies in the plant on the day that he discharged
Moore , and more specifically , he had no knowledge of
Moore 's union activities. Furthermore, as noted above
heretofore, he stated that, so far as James Price's informing
him of the names of the individuals who had attended the
September 5 union meeting was concerned, he could not
remember any such conversation and that he paid no
attention to Price who was talking all the time.
I cannot accept the testimony of Carmickle to the effect
that he had no knowledge of any union activity in the plant
in view of Price's testimony. Furthermore , as hereinafter
related , Royalty, to whom Gentry allegedly initially told of
her conversation with Moore concerning the Union on
September 8, was not produced as a witness by' the
Respondent . This would have bolstered Carmickle 's denial
that he had any conversation whatsoever with Gentry
concerning Moore's activities. Additionally, as hereinafter
related more fully, Carmickle testified that he was
informed by Supervisor Trainee David Burdine before 6
o'clock a .m. on September 8 that Moore was doing poor
work and that this lead to Carmiclde 's inspection of
Moore's activities which ultimately lead to her discharge as
hereinafter related., Again, Burdine could have been
produced by the Respondent to support Carmickle's
testimony in this respect. However, Burdme did not testify.
Thus , Carmickle's denials of knowledge of Moore's union
activity , and his testimony that he had reason to observe
the quality of Moore's work on September 8, stands alone
in the face of overwhelming testimony to the opposite
affect, at a time when the,two individuals who could have
supported Carmickle's testimony were not produced. I,
therefore, infer that had these individuals been produced
their testimony would not have supported Carmickle's but
would, in fact, have produced an opposite result.
While I cannot accept some of Gentry's testimony to the
effect that Moore was an outstandingly efficient employee,
I do accept the balance of her testimony . While I conclude
that Gentry tended to exaggerate in some respects,
nevertheless, she demonstrated very apt recall and, , from
my general observation of her testimonial demeanor and
her positive manner, I conclude that she was basically a
dependable witness whose testimony , if not completely
correct, was sufficiently accurate to be acceptable in great
part. Even though I may reject some of what I consider to
be exaggeration on her part I accept the basic facts which
she related . Indeed , it has been held that to the extent that
a witness is credited only in part it is not uncommon "to
believe some and not all of a witness's testimony." 5
We come now to the events of the discharge of Moore.
At approximately 4:30 or 4:45 . p .m. on September 8,
Moore was called by Lois Tinsley, the sorting room
leadlady, and told by her that Carmickle desired to see
Moore in his office. Present in Carmickle 's office when
Moore arrived , were Burdine, the supervisor trainee, and
Carmickle . Carmickle said to Moore, "Lois, I want you to
sign these papers. " Moore then asked, "What papers?"
Carmickle then told Moore , "These papers here . As of now
you've been terminated ." When Moore asked why she was
being terminated, Carmickle answered, "Because of the
way you've been doing your job today."
At that point, Moore explained to Carmickle that there
were more boxes in the sorting room than the shift which
followed could use in half the shift, and that she was well
ahead of her necessary production on making boxes for the
sorters. Moore further explained that the sorters had
helped her make boxes because of the fact that something
had happened to line 1 , and that shortly after lunchtime,
when the line had broken down , and there had-been no
further production on the line , the girls on the line were
instructed to make boxes.
According to Moore, at that point she told Carmickle
that if he was going to fire her that he ought to tell'the truth
about why he was doing so. Moore told Carmickle , that she
knew he was firing her because she passed out union
literature and because Darnell Devers, the union represent-
ative, was her first cousin and that Devers was trying to
organize the Union in the plant . According to Moore, at
that point Carmickle's face turned red and he said "I'm
doing what I was told to do. I don't want nothing more out
of you. Me and Dave Burdine are going to escort you out
of this plant because I don 't want you causing me trouble."
At this, according to Moore ; she informed Carmickle
that she had never caused any trouble and that she did not
need to be escorted out of the building and that as she left
she would talk to nobody , that if she wanted to talk to any
of the girls she would talk to them after work . Nevertheless,
Carmmckle insisted on escorting Moore out of the building
and as he was doing so, according to Moore , he said to her
"I want one of those union papers you all have been
passing out." At that , Moore gave Carmickle the paper.
Carmickle then told Moore , "I don 't think this was a very
smart thing for you to do, passing these out on my shift."
With that, Moore left the plant.
It should be noted in connection with the discharge
conversations and the entire exit interview , that, in
testifying, Carmickle did not directly controvert any of
Moore's testimony . Although he denied that he had any
knowledge of any union activity , he did not deny the
conversation with Moore as he was escorting Moore out of
the plant to the affect that he asked Moore for a copy of
the literature which she had passed out that day, that she
had given him such literature in response to his request,
and that he told her, in effect, that she was foolish to pass
out the literature on his shift. Accordingly, although as
hereinafter related , I find that Moore exaggerated her
efficiency as an employee to a certain extent, because
5 N L.RB v Umversal Camera Corporation, 179 F 2d 749 , 754 (C A 2).
FLORIDA TILE COMPANY 423
Carmickle did not directly deny the final conversation with
Moore as related above, I credit Moore in this respect.
C. The Respondent's Defense
The Respondent offered the testimony, in addition to the
testimony of Carmickle, of a number of witnesses regard-
ing Moore's capabilities as an employee. In order to fully
assess the testimony of these defense witnesses, it is
necessary to set forth the established procedure for
disciplinary action in the Respondent's plant.
It is the policy of the Respondent to give employees
yellow employee warning notices, which are yellow slips on
which the nature of the employee violation is'listed and
upon which the details of that violation are entered. These
employee warning notices are given for such things as
defective work, safety regulation violations, poor conduct,
consistent tardiness and absences , poor attitude, poor
housekeeping , disobedience , and downright carelessness. It
is further company policy to automatically discharge
employees upon receipt of a third employee warning
notice. Additionally, it is company policy to give a warning
notice to any employee who is absent for any reason, even
excusable illness, if such employee is absent 3 days in a 90-
day period.
Lois Moore , the alleged discriminatee herein, was given
an employee warning notice on December 15, 1973, for
three absences in the 90-day period preceding that date.
Again, on May 19, 1974, Moore was again given a second
employee warning notice for three absences during the 90-
day period preceding that date. Thus at the time of her
discharge Moore had received two of the allowable three
employee warning notices.
In addition to the foregoing disciplinary measures, the
Respondent also has a procedure for speaking to employ-
ees with regard to matters concerning the manner in which
work is performed and which is recorded on what is known
as "record of special contact ." As noted above, Lois Moore
was originally hired in 1973 as a tile sorter on the line. This
assignment involved the checking of the tiles as they came
out of the kiln room, after being cooled, for uniformity of
color and general quality with special alertness to be
exerted to discover minor imperfections in the surface of
the tiles and, according to the color differences (shades
within a single color) or by reason of defects in the glazed
surface of the tile. The sorters either rejected the tiles
completely or placed them in various categories , according
to their quality and their color and , shade. Thus, it is
necessary to place tiles according to color and shade of
color and quality in separate boxes so that each box is of a
uniform color, shade , and quality.
In December 1973, Lois Moore began to have difficulty
with her eyes and, as a result upon her doctor 's recommen-
dation, could no longer sort tile by reason of loss of a
certain percentage of visibility. Accordingly, the Respon-
dent assigned her to making boxes for the sorters to pack
the tile . This assignment entailed not only the making of
boxes, which evidently are flat cardboard pieces which are
then put together and assembled to form a box, but also
entailed marking the boxes with the proper color codes and
the proper grading as necessary for the use of the sorters.
However, since the boxes must be made in advance,
presumably the boxmaker being made aware of what
colors are coming off the line, it is a normal procedure for
such boxes to be stamped in excess of the number actually
used for a particular color and grade. In such event, the
boxes which are already made and cannot be used because
of a change in color, etc., must be bleached so that the
incorrect color codes can be eliminated and new color
codes placed thereon. Accordingly, the responsibility of the
boxmaker is to provide not only sufficient boxes to the
sorters but also to provide properly marked boxes.
On March 16, 1974, Carmickle had a special contact
interview with Lois Moore in the presence of Leadlady
Lois Tinsley. The reason for this contact, as explained in
the record of special contact signed by Carmickle, Tinsley,
and Moore, was that Moore had been having problems
keeping the sorters in sufficient quantity of boxes, basically
because she had been carrying water to the sorters which
interfered with her work in assembling, marking,, and
bleaching boxes, and also because Moore was spending too
much time sitting on the table when she could have been
marking boxes. At that time, it was explained to Moore
that there was only one boxmaker budgeted for two sorting
lines and that Respondent had done her a favor by letting
her be a boxmaker since Respondent did not have an
opening at that time. Moore was assigned to boxmaking
because she could no longer sort tile due to doctor's orders.
Within a very short time thereafter, on March 31, 1974,
Moore was again given a special contact for which a record
was made dated that day and signed by Carmickle,
Tinsley, and Moore. The record of special contact reveals
that, the day before, Moore had left boxes stamped with
the wrong colors even though they had quit running those
colors and had failed to bleach out the color codes so that
the numbers and codes of the new colors could be affixed.
At that time, the lines were shut down for an hour and
Moore had 1 hour with nothing to do but bleach the boxes
and had failed to do so. The contact slip also showed that
Moore had been entirely too slow in the opinion of
Carmickle and Tinsley. It was noted that she was told she
was given 2 weeks to improve her speed or that other
measures would be taken.
None of the foregoing , neither the yellow warning
notices nor the special contacts, was denied in her
testimony by Moore. However, Moore testified that, in
June 1974, she was given a review of her work by
Carmickle and that this review was entered on a "special
performance rating plan" given her by Carmickle on June
10, 1974. This performance rating plan sheet was broken
down into a number of categories such as quantity of work,
quality of work, knowledge of job, initiative, aptitude,
ability to learn, attention to duty, dependability, coopera-
tion , etc. Under each of these various categories there were
numerical gradings with regard to the employee 's standing
in each category, ranging from 1 to 10, above average
being anywhere from 6 to 8, and excellent being 9 and 10.
Moore testified that at that interview she was told by
Carmickle that her work had greatly improved and that he
was giving her all 9's and 10's which would put her in the
excellent class in each separate category assigned. Howev-
er, introduced into evidence was the actual grading sheet,
signed by Moore, which showed that, although in each
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
category she was assigned either a 6 or a 7 which would put
her in the above-average class, she was not given any rating
in the excellent classifications I further find and conclude
that Moore was never considered an excellent employee
although, at least in June 1974, Cannickle, her supervisor,
did rate her above average in all categories. I therefore
conclude that, in view of the previous contact slips given
Moore and the ratings given on the rating sheet, Moore
was, indeed, told by Carmickle that she had improved. In
fact, in testifying, Carmickle did' state that at that time
Moore had shown improvement.
After Moore was given her rating in June 1974, her work
evidently varied in quality and quantity from time to time.
This is evidenced by the conflicting testimony of General
Counsel's witnesses and Respondent's witnesses . Thus, as
heretofore set forth, Gentry testified that when she worked
in the section with Moore, the latter caused no trouble and
always supplied the proper amount of boxes for the sorters.
Also, another employee, Ethel Stines testified' that she
could not remember any time that she worked on the shift
with Moore when there was a shortage of boxes. Admitted-
ly, when the sorters ran out of boxes they would shout for
boxes, but Moore was always able to supply them with the
necessary boxes when they shouted for more.
On the other hand Lois Tinsley, the leadlady in the
sorting room on the third shift, the same shift to which
Moore was assigned, stated that boxmaking is part of her
responsibilities and that Moore was slow as a boxmaker at
first, but then improved. But although Moore's quantity
improved, the quality did not inasmuch as she would mix
up the markings between standard tile and dixie tile.?
Tinsley further testified that there were many times when
the girls had to shout in order to get Moore to keep them
supplied with the necessary amount of boxes. Tinsley's
main complaint of Moore was that Moore would be talking
while she should have been occupied making ' boxes.
However, significantly, Tinsley could not remember that
there were any problems with Moore on September 8, the
day Moore was discharged, insofar as the number of boxes
that were supplied. But, according to Tinsley, on that day
Moore did mix up the boxes as to the markings on the
boxes, as, a, result , of which the sorters were supplied with
the wrong , lettered or number boxes. Furthermore, al-
though Tinsley did complain from time to time about
Moore's work, she admitted that she did not make any
recommendations, to Carmickle as to whether Moore be
discharged or retained.
In agreement with Tinsley, Jennie McKee, the assistant
leadlady, testified' that, on the third shift during September
1974, and, on September 8, the day that Moore was
discharged,, there were several mixups on the boxes. They
were marked with the wrong color., When McKee told
Moore to mark the boxes properly, Moore answered that
she had not mismarked the boxes, that the same were left
over from, the earlier shift. Moreover, despite these
warnings , even after the leftover boxes were used up,,there
were still mixups in markings on the boxes. However,
6 Although Moore refused to identify the signatures on the performance
rating plan sheet as hers, she was asked to sign a slip of paper while on the
witness stand, which',signature was placed in evidence along with the
performance rating plan sheet. I find and conclude that the signatures on
the rating plan sheet'and the signature on the sheet of paper signed by
McKee admitted on cross-examination that, despite the
mixups of the boxes created by Moore, McKee did not
complain about Moore's work on that day.
In addition to Carmickle, Leadlady Tinsley, and Assist-
ant Leadlady McKee, rank-and-file employee Patty Sue
Million testified that she had been working for the
Respondent for 6 months at the time of the hearing and
was employed by the Respondent in August and Septem-
ber 1974 as a sorter on the third shift with Moore. She
testified that the sorters would run out of boxes and would
have to shout for more until Moore would supply them
with boxes. When they shouted, Moore would shout back
"Who hollered?" But finally Moore did deliver the boxes.
However, on cross-examination, Million, whose nervous-
ness and timidity on the witness stand convinced me that,
for the most part, her, testimony was truthful, stated that
after Moore's discharge there were two extra sorters placed
on the line, and that at all times these two extra sorters or
other sorters were used to make boxes. According to
Million, whom I credit, there were always two individuals
at work making boxes after Moore's discharge whereas
when Moore worked she was the only boxmaker who was
helped upon occasion by either the assistant leadlady or, by
sorters who were not busy because for some reason' or
another the line had stopped or was broken down. Thus, it
would seem that had Moore had a fellow boxworker
working full time, the so-called failure to deliver sufficient
quantity 'of boxes or the failure to supply the correct
numbers or to bleach out the incorrect numbers might not
have occurred.
In any event, according to Supervisor Carmickle, on the
morning of September 8, 1974, before the start of the shift
at 6 a.m. he was informed by Supervisor Trainee David
Burdine that Moore's work was substandard and that she
was not performing her work as required . As a result,
about 1-1/2 hours after the start of the shift, Carmickle
observed Moore "mixing boxes on the line." He testified
that the colors did not match the numbers on the boxes.
However, he further testified that he did not do anything
about the matter at 'that time inasmuch as there was a
serious mechanical failure in the initial portion of the
continuous operation of the automated plant which was in
continuous operation 24 hours a day, 7 days week. It was
testified by both Carmickle and Richard Dennis Moore,
the plant manager, that this continuous operation was
necessary in order to economically produce the tile and
that if a breakdown occurred anywhere, in the entire
process, and most especially at the beginning of the
process, the entire plant would grind to a halt. Thus, when
Carmickle was informed of ' the breakdown of one of the
principal conveyers at the beginning of the process, he
immediately ceased his observation of Lois Moore at her
work as a boxmaker to attend to the emergency occurring
in the other part of the plant. He was, therefore, busy the
entire day until late in the afternoon by reason of this and
other emergencies . I accept the fact that Carmickle was
busy that day not only by reason of his own testimony but
Moore at the hearing were virtually identical and that, therefore, the
signatures on the rating plan sheet are Moore's.
7 The tiles were graded according to quality into standard which was the
best quality and dixie which was the next lowest quality. Lower quality than
these were rejected.
FLORIDA TILE COMPANY
by reason of the testimony of other employees and also by
reason of the introduction into evidence of the shift
summary for that day which showed the production
difficulties which Carmickle encountered.' Nevertheless, as
noted above, Carmickle was informed by Royalty, who
was informed by Gentry, of the fact that Moore was
passing out union literature and seeking to induce
employees to sign union designation cards. Moreover, he
was also told on that day by his relative, James Price, of the
names of the employees who had attended the union
meeting of September 5. Thus, despite his being very busy
on that day, Carmickle did receive information with regard
to Moore 's activities as an organizer for the Union.
Toward the end of the day, according to Carmickle,
when he had time, he checked Moore's records, which
revealed that she had already received two yellow warning
slips and had been contacted upon two separate occasions
with regard to her work, and which contact reports
contained the same type of complaints which were related
to him with regard to Moore's work on September 8. He,
therefore, decided that with all his other troubles of that
day he could not tolerate Moore's incompetence and
would have to give her a third yellow slip. Accordingly, he
wrote one out and then requested Moore to appear at his
office where he discharged her.
Admittedly, he informed Moore that she was discharged
for poor work. However, although he denied that he knew
anything about Moore's union activities, he did not in any
way, in testifying, deny that portion of the exit interview in
which he asked Moore for a copy of the literature and told
her that it was unwise for her to distribute the literature on
his shift.
Furthermore, on cross-examination, Carmickle testified,
in two different instances, that he was so busy that "I
wasn't in there but just a second and had to leave." This
was in connection with his observation of Moore 's work on
the morning of September 8. Also in connection with his
observation of Moore's work on September 8, Carmickle
admitted that he "only took a quick glance" and then did
not see Moore until he discharged her at approximately
4:30 p.m. on that day.
D. Concluding Findings
It is evident that some of Moore's testimony was
inaccurate in that she testified she received excellent
ratings during her June review with Carmickle. Such
ratings, according to the exhibit submitted in evidence,
were , in truth , only above average. While it is also true
that, undoubtedly, Moore during the early months of 1974
did not perform satisfactorily, and, although additionally
there may have been times even after her review rating in
June 1974 when Moore did not perform completely up to
standard , I conclude that Moore was not so inefficient as
to qualify as a poor employee . In coming to this conclusion
I am not second guessing the Respondent's judgment as to
Moore's qualifications but, rather , am basing this conclu-
sion on the testimony of all of the witnesses including some
of the Respondent's own witnesses. Substantially, the
complaints concerning Moore subsequent to June 1974
were that the employees on the sorting line were forced,
upon occasion, to shout for boxes when necessary but that,
425
in the main, the boxes were forthcoming . I also conclude
that while Moore was expected to furnish the boxes for the
no. 1 and 2 sorting lines principally by herself, with some
assistance from others, after her discharge there were
always two employees spending their time making boxes.
Additionally, I have heretofore credited Gentry to the
extent that she did inform Kiln Foreman Royalty of
Moore's union activities on September 8. I also have
credited Gentry's testimony (despite the flaws in her
testimony described by the Respondent) that she was not
only interrogated by Carmickle but also informed him that
Moore had, in fact, on that day, read to Gentry the content
of union literature and had requested Gentry to sign a
union designation card.
Thus, this testimony, together with the credited testimo-
ny of Carmickle's relative, James Price, that he informed
Carmickle of those employees who attended the September
5 union meeting, renders unbelievable Carmickle's denial
that he knew of any employees' union activities. Carmickle
having testified unreliably with, regard thereto, I fmd and
conclude that Carmickle was less than truthful as to the
reasons why he discharged Moore. Moreover, although
Leadlady Tinsley and Assistant Leadlady McKee testified
that Moore's performance as an employee after her
performance rating of June 1974 was not completely
satisfactory, it would seem that, if Moore's work had really
been as bad as they testified, Carmickle would have given
Moore her third warning slip before September 8. I
conclude, therefore, that the intervening union activity of
Moore was the factor which caused Carnickle to use
Moore's allegedly poor , performance as a reason to
discharge her for such union activities. Furthermore, I fmd
and conclude that Carmckle's interrogation of employee
Gentry was violative of Section 8(a)(1) of the Act in that it
inquired of the union activities of fellow employees in a
coercive manner and therefore interfered with the Section
7'rights of the employees.,
These conclusions are also bolstered by the fact that
Carmickle requested of Moore that the latter supply him
with a copy of the union literature she distributed on
September 8 and informed her at that time that she was
unwise to have done so on his shift.
In coming to these conclusions I have considered the
testimony of Respondent 's witnesses to the effect that, at
an earlier attempt to unionize the Respondent 's employees,
Plant Manager Richard D . Moore had informed the
employees that if they signed union cards or joined the
Union they would not suffer retaliation. Even assuming
that the Respondent did not maintain a policy of union
animus, and even assuming that the Respondent did not
instruct any supervisors to retaliate against union adher-
ents, it is entirely probable, on the basis of all the evidence,
that Carrmckle took it upon himself to discharge Moore
because of her union activity despite whatever general
policy Respondent might' have had to the contrary. The
fact that Carmickle, a supervisor of the Respondent,
committed this unlawful act without the Respondent's
specific permission or condonation, does not relieve
Respondent of the responsibility for such act.
Nor, in coming to the foregoing conclusion that but for
her union activity Moore would not have-been discharged,
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have I disregarded the fact that Moore might not have
been, even after June 1974, an.ideal employee. However, as
noted above, during the period from early June until
September 8, even if she was a poor employee, Moore was
not recommended for discharge. I therefore conclude that
despite all of these considerations Moore would not have
been discharged had she not engaged in union activity.
Moreover, I am convinced that the alleged poor work on
September ,8 was but a pretext when it is established by
Carmickle's own testimony that he observed Moore .only
for a short moment and only glanced at her for an instant
but was called away because of the emergency in the plant.
Moreover, none of the other employees who were senior to
Moore such as the leadlady and assistant leadlady testified
to the effect that they recommended Moore's discharge.
Thus, it is unacceptable that after a quick glance Moore
was discharged by Carmickle because he observed her poor
work on that day.
Nor have I failed to give consideration to the fact that
other employees who had attended the union meeting 'on
September 5, and who had also received yellow warning
slips as had Lois Moore, were not discharged. However, as
far as the record definitely reveals, only Moore's activity of
distributing union literature and soliciting union member-
ship was reported to Carmickle. The record is unclear as to
'whether any activity on the part of other union adherents
was reported to, or observed by, Carmickle by the time
Moore was ' discharged. Additionally it was Moore who
began the union movement and who was related to the
union business representative.
Accordingly I find and conclude that in discharging
Moore Respondent violated Section 8(a)(3) and (1) of the
Act and that, by the interrogation of Gentry by Carmickle,
Respondent unlawfully interrogated an employee in
violation of the employee's Section 7 rights and thereby
violated Section 8(a)(1) of the Act. Moreover, I fmd that by
stating to Moore' during the exit interview that she was
unwise in passing out union literature on his shift,
Carmickle further committed a violation of Section 8{a)(1)
in that such' remark constituted a warning' to other
employees not to engage in union activity.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of the Respondent as set forth
in section III, above, occurring in connection with its
operations set forth 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
thereof.
V. THE REMEDY
Having found that the Respondent discriminatorily
discharged and refused to reinstate Lois M. Moore, I shall
recommend that the Respondent offer Moore immediate
and full reinstatement to her former or substantially
8 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec
equivalent position without prejudice to any seniority or
other rights or privileges she may have enjoyed . Respon-
dent shall make Moore whole for any loss of pay she may
have suffered by, reitson of the discrimination against her
by payment to her of a sum equal to that which she would
have received as earnings from the date of her discharge,
September 8, 1974 , until she is fully reinstated, less any net
interim earnings. Backpay is to be computed on a quarterly
basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289 (1950), with interest
thereon at the rate of 6 percent per annum to be computed
in the manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
Having found that the Respondent , unlawfully interro-
gated and threatened its employees , it shall be ordered that
it cease and desist therefrom.
On the basis of the foregoing findings of fact and upon
the entire record , I make the following:
CONCLUSIONS OF LAW
1. Florida Tile Company, Subsidiary of Sikes Corp., is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Association of Machinists and Aero-
space Workers, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By unlawfully interrogating its employees with
regard to the union activities of other employees and
threatening employees with reprisals if they engaged in
union activities, the Respondent has engaged in and is
engaging in unfair labor practices affecting commerce
within the meaning of Sections 8(a)(1) and 2(6) and (7) of
the Act.
4. By chscriminatorily terminating and refusing to
reinstate Lois Moore because of her union activities,
Respondent has engaged in, and is, engaging in, unfair
labor practices affecting commerce within the meaning of
Sections 8(a)(3) and (1) and 2(6) and (7) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of the
Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDERS
Respondent, Florida Tile Company, Subsidiary of Sikes
Corp., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees with regard to the union
activity Of such employees or the union activities of other
employees.
(b) Threatening employees with reprisals for engaging in
union or other protected concerted activities.
(c) Discouraging membership in International Associa-
tion of Machinists and Aerospace Workers, AFL-CIO, or
any other labor organization,'by discharging any employee
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
FLORIDA TILE COMPANY
for engaging in union or-other protected, concerted activity,
or discriminating against any, employees in any other
manner in regard to their hire "and tenure of employment
or any term-or condition of employment.
(d) In any like or similar manner interfering ' with,
restraining, or coercing its employees in the exercise of
their rights to form, join, or assist, or be represented by
International Association of Machinists- and Aerospace
Workers, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own
choosing or to engage in other concerted activity for the
purposes of collective bargaining, or other mutual aid or
protection, or-to refrain from any and all such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act: - -
(a) Offer to Lois M. Moore immediate and full
reinstatement to her former or substantially equivalent
position, without prejudice to her seniority or other rights
and privileges previously enjoyed, and make her whole for
any loss of earnings she may have suffered by reason of the
discrimination against her in the manner set forth in the
section of this Decision entitled "The Remedy."
s' In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
427
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment _records, and all
other reports necessary to analyze the amount of backpay
due under this Order.
(c) Post at its plant in Lawrenceburg, Kentucky,, copies
of the attached notice marked "Appendix." 9 Copies of said
notice on forms provided by the Regional Director for
Region 9, of the National Labor Relations Board, after
being duly signed by Respondent's representative, shall be
posted by the Respondent immediately upon receipt
thereof and be maintained by Respondent for 60 consecu-
tive 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.
(d) Notify the Regional Director of Region 9, in writing,
within 20 days from. the date of this Order, what steps the
Respondent has taken to comply herewith.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board. "