Wintex Knitting Mills, Inc.

National Labor Relations Board - Board Decisions

Mar 14, 1975

216 N.L.R.B. 1058 (N.L.R.B. 1975)

1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Newport Division of Wintex Knitting Mills, Inc. and
United Textile Workers of America, AFL-CIO
and International Ladies' Garment Workers Union.
Cases IO-CA-10435 and 10-CA-10459
March 14, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On June 27, 1974, Administrative Law Judge
Wellington A. Gillis issued the attached Decision in
this proceeding . Thereafter, Respondent Newport
Division of Wintex Knitting Mills, Inc ., 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 and to
adopt his recommended Order as herein modified.
Unlike our dissenting colleague , we agree with the
Administrative Law Judge's conclusion that Respon-
dent's November 2, 1973, general wage increase
during an organizational campaign violated Section
8(a)(1).
It is well established that the announcement of a
wage increase during the pendency of a representa-
tion petition for the purpose of stifling an organiza-
tional campaign constitutes unlawful interference
and coercion.' Thus, the Supreme Court has stated
"that the conferral of employee benefits while a
representation election is pending, for the purpose of
inducing employees to vote against the union," 2
interferes with the employees ' protected right to
organize.
An employer's legal duty in deciding whether to
grant benefits while a representation petition is
pending is to determine that question precisely as if a
union were not in the picture.3 An employer's
granting a wage increase during a union campaign
"raises a strong presumption" of illegality.4 In the
absence of evidence demonstrating that the timing of
' N.L.R.B. v. Exchange Parts Co ., 375 U .S. 405 ( 1964); Revco Drug
Centers of the West, Inc., 188 NLRB 73 (1971 ); Tonkawa Refining Co., 175
NLRB 619 (1%9); Goodyear Tire A Rubber Company, 170 NLRB 539
(1%8); Gal Tex Hotel Corporation d/b/a Admiral Semmes Hotel and Motor
Hotel, 154 NLRB 338 (1%5).
2 375 U.S. 405 , 409 (1964).
McCormick Longmeadow Stone Co., Inc., 158 NLRB 1237, 1242 ( 1966).
4 Casey Manufacturing Company, 167 NLRB 89 (1%7), quoting Ventre
Packing Co., Inc., 163 NLRB 540 (1%7).
S Colonial Knitting Corp., 187 NLRB 980 (1971 ), quoting Baltimore
Catering Co, 148 NLRB 970,973 ( 1964).
the announcement of changes in benefits was
governed by factors other than the pendency of the
election, the Board will regard interference with
employee freedom of choice as the motivating factor.
The burden of establishing a justifiable motive
remains with the Employer.5
The inquiry into Respondent's motive in granting
the wage increase in this case starts with the fact that
the announcement thereof came in the midst of the
unions' organizing campaigns with Respondent's
knowledge of the pending representation petition.
Further, the announcement was made at a time when
Respondent was engaging in an unlawful campaign
against the organizational activity which included
unlawful discharges,6 unlawful interrogation of
employees concerning union activity, threats to close
or to remove the plant from Newport if the Union
came in, and the solicitation of employees to
persuade other employees to refrain from union
activities.?
Against this background, Respondent's contention
that its decision to grant an across-the-board wage
increase was solely economically motivated and was
unrelated to union organization is not very impres-
sive. Particularly significant is the timing of the
increase in that though requests for a wage increase
allegedly commenced in June, it was not until
November, after two unions had become active in an
organizational campaign, that permission was given
to grant a wage increase . Moreover, Respondent's
position lacks evidentiary substance.
Respondent's reasons for increasing wages at this
particular moment were set out in the testimony of
Joseph Wolfer, the vice president who made the
decision. We accord little weight to his uncorroborat-
ed explanation of the business reasons which led
Respondent to grant the raise.
In this vein , it is important to note that the general
wage increase was granted at a time when the
Respondent had recently laid off employees and was
allegedly concerned about the industry's depressed
state. The suggestion of financial stress persuades us
that Respondent would have taken steps to save
money rather than grant a wage increase at this
time.8 Although Respondent also attempted to
explain that it could not compete in the labor market
with other local manufacturers as a result of the loss
6 The Respondent's November 1 announcement of the wage increase
was preceded by the unlawful discharge of Virginia Shaver on October 15.
Shortly thereafter, on November 13, Earlene Smith was also discnrmnatori-
ly discharged.
r Having established the relationship between Respondent 's knowledge
and its action, the General Counsel had made a prima facie case and the
burden of going forward with evidence shifted to Respondent . See Revco
Drug Centers, supra 76 ( 1971); Preston Products Company, Inc., 158 NLRB
322,345 ( 1966), enfd . 387 F .2d 801 (C.A.D.C., 1967).
8 Cf. N.L.R.B. v. Orleans Mfg. Co., Inc., 412 F.2d 94, 97 (C.A. 2, 1969).
216 NLRB No. 172
NEWPORT DIV. OF WINTEX KNITTING MILLS, INC. 1059
of a schedule advantage following the layoff, its vice
president was unable to answer General Counsel's
questions concerning the number of employment
applications on file or the number of employees still
on layoff status . No affirmative evidence was
submitted to corroborate Wolfer's testimony that the
Employer had experienced any turnover among its
employees in the period between the October 5 layoff
and the November 2 wage increase. Nor was there
any showing that the laid-off employees were other
than trained and skilled employees willing to work at
the old rate of pay. Since such information, if it
exists, is solely within Respondent's control, the
failure to produce it reinforces the conclusion that
the Employer's action was tainted by an unlawful
purpose.
In light of the foregoing, we conclude that the
Respondent has not advanced a substantial and
legitimate business justification for the November 2,
1973, wage increase. Rather, we view the wage
increase as designed to suggest to the Company's
employees "that the source of benefits now conferred
is also the source from which future benefits must
flow and which may dry up if not obliged."9
In making this determination, we take issue with
our dissenting colleague 's view that our decision "is
unfair to employees as it prevents them from
receiving any increases in wages ." Wage rates are not
necessarily "to be frozen at prepetition levels during
the pendency of a petition even though an election
may not be held for months, years, or not at all."
Though the Board has recognized that an election
under this Act may not be held when an unfair labor
practice case must be resolved before an election can
be conducted, the Board has pointed out that
"Fluctuations in the cost of living or in the labor
market or in other factors affecting the employer's
business may well occur during the period rendering
wage adjustments advisable or necessary" and the
law does not require "a holding that any such
adjustment made while a second election is pending
is automatically an unfair labor practice." 10 In short,
the employer's duty in this situation is to "decide
whether or not to grant improvements in wages and
benefits in the same manner as it would absent the
presence of a union."" If the employer would have
granted the benefits because of economic circum-
stances unrelated to union organization , the grant of
those benefits will not violate the Act. Here we have
concluded that the benefits were granted to under-
mine the organizational campaign . Accordingly, we
9 375 U.S. 405, 409 (1964).
10 McCormick Longmeadow Stone Co ., Inc., 158 NLRB 1237, 1241
(1966), quoting Champion Pneumatic Machinery Co , 152 NLRB 300, 306,
307(1%5).
shall adopt the Administrative Law Judge's finding
of a violation and his proposed remedy.
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 Respondent,
Newport Division of Wintex Knitting Mills, Inc.,
Newport, Tennessee, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order as herein modified:
1. Insert in paragraph 1(b) after the words
"concerning union activities," the words "threaten-
ing employees with retaliation because of their union
activities,".
2. Insert the following as paragraph 1(c) and
reletter existing paragraph 1(c) as 1(d).
"Promising or granting employees a wage in-
crease for the purpose of causing them to reject a
union as their collective bargaining representa-
tive."
3. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
MEMBER KENNEDY , concurring in part and dissenting
in'part:
I agree with each of the factual findings made by
the Administrative Law Judge. I disagree with his
legal conclusion that Respondent's November 2,
1973, wage increase violated Section 8(a)(1). In my
judgment, the General Counsel failed to sustain his
burden of establishing that the increase was imple-
mented for an unlawful purpose.
Paragraphs 14 and 15 of the complaint allege, in
essence, that Respondent violated Section 8(a)(1) by
granting a wage increase of 20 cents per hour on
November 2, 1973, at a time when it had knowledge
of a pending RC petition and for the purpose of
causing the employees to reject the petitioning
union.12 Respondent admitted implementing the
increase with knowledge of the RC petition but
denied that such conduct was unlawful.
The General Counsel offered no evidence, either
testimonial or documentary, in support of the
complaint. He chose, instead, to rely entirely on the
pleadings. In my judgment, however, the pleadings
do not establish a prima facie case for the finding of a
violation. It has long been settled that the award of a
11 Diamond Motors, Inc., 212 NLRB 820 (1974).
12 At the time of the wage increase, the RC petition had been pending
for over 3 months.
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wage increase during an organizing campaign is not
per se unlawful. Its lawfulness is contingent upon the
employer's motivation , and, as in all such cases, the
burden of establishing an unlawful motivation
remains at all times with the General Counsel.13
The mere fact that the wage increase here was
granted with knowledge of the pendency of an RC
petition does not establish that it was granted "for
the purpose of causing [the] employees to reject the
Union as their collective bargaining representative"
as the General Counsel alleges . As of November 2,
1973, the petition had already been pending for more
than 3 months , further processing of petition was
"blocked" by the filing of unfair labor practice
charges , and neither a hearing on the petition nor an
election was anywhere in sight . It is now more than a
year and a half since the petition was filed and still
no hearing or election has been scheduled. Under
these circumstances , it is unreasonable to assume
that the wage increase could have been implemented
to influence the employees' vote.
In Tennessee Handbags, Inc.,14 an employer an-
nounced and granted certain increases in employee
benefits at a time when , as here, an election was
"blocked" by unfair labor practice charges. We there
stated:
We agree with Respondent's contention that
the announcement of the benefits was not timed
to affect the employees ' vote because , at that
time, the second election was blocked by the
intervening unfair labor practice proceeding.
While, in fact, the Union filed its "request to
proceed" I month after the announcements,
Respondent, although faced with the possibility
of the second election, did not know when , if ever,
it would be held.
We concluded in Tennessee Handbags that it was
"unreasonable to infer merely from the timing of the
announcements that they were calculated to achieve
the alleged unlawful purpose." In my judgment, the
fact that neither a hearing nor an election had been
scheduled when Respondent granted the wage
increase makes such an inference even more unrea-
sonable here.15
In a similar manner the court in Monroe v.
N.LR.B., 460 F .2d 121, 124 (C.A. 4, 1972), found
that the employer's implementation of wage and
benefit increases was not instituted in order to
18 N.LRB. v. Gotham Industries, Inc., 406 F.2d 1306,1309, In . 5 (C.A. 1,
1%9); Jervis Corporation v. N.LRB., 387 F.2d 107, 113, In. 4 (C.A. 6, 1967);
N.LRB. v. Crosby Chemicals, Inc., 274 F.2d 72, 74, In. 5 (C.A. 5, 1960);
McCormick Longmeadow Stone Co., Inc., 158 NLRB 1237, 1242 ( 1966).
14 179 NLRB 1045, 1046 ( 1969).
is If an election had been imminent in this can, an inference of
improper motive may well have arisen . CI. Peterson Builders, Inc., 215
NLRB No. 12 (1974). However, the longstanding principle to apply in such
influence the outcome of a decertification election
where a blocking charge had suspended processing of
the representation proceeding and the employer had
"no idea when an election would be scheduled." The
court pointed out:
Thus, at the time the Company decided to grant
the increases and to implement its decision,
Doyle's third charge was still effective as a
"block" to further election proceedings, for,
according to Board procedures, the filing of an
unfair labor practice charge during the pendency
of a representation proceeding generally will (and
in this case did) block the processing of a
decertification petition. A petition is not "un-
blocked" until the charge is dismissed. Until
11:00 a.m . on October 13 when it received notice
of the dismissal of Doyle's third charge, Monroe
had no idea when an election would be scheduled
because the charge had operated to suspend all
processing of the decertification petition.
The impact of my colleagues' decision on both
employers and employees is very far reaching. As
this case so clearly illustrates , election petitions,
which are "blocked" by unfair labor practice
charges , sometimes take years to resolve. Under the
majority's view, wage rates are to be frozen at
prepetition levels during the pendency of a petition
even though an election may not be held for months,
years, or not at all. This is unfair to employees as it
prevents them from receiving any increases in wages.
It is equally unfair to employers who will find it
difficult to obtain and to retain qualified employees.
Assuming, arguendo, that the pleadings here do
establish a prima facie case for an 8(a)(1) violation as
contended by the General Counsel, Respondent then
had the burden of going forward with evidence
adequately explaining the reasons for the wage
increase and dissipating any unfavorable inferences
to be drawn from its timing.16 This Respondent did
through the uncontradicted testimony of the individ-
ual who actually approved the increase, Vice Presi-
dent Joseph Wolfer.
Wolfer testified that the Newport, Tennessee,
facility had been in operation for approximately 1
year prior to the November 1973 wage increase, and
that during that period the employees had never
received an increase in pay . He testified further that
the initial wage scale implemented at Newport was
situations was restated in The Deutsch Company, 178 NLRB 616 (1969),
affd. 445 F .2d 901 (C.A. 9, 1971): "In such circumstances an employer is
required to act as it would normally, absent the presence of the union. Had
the Respondent withheld a wage increase it would have granted but for the
union, it would have violated the Act."
16 Cf. The Circle K Corporation, 173 NLRB 713,715 ( 1968); N.LRB. v.
Gotham Industries, Inc., supra.
NEWPORT DIV. OF WINTEX KNITTING MILLS, INC.
far below the wage scales offered by other manufac-
turing companies in the area. This competitive
disadvantage in wage rates was partially offset,
however, by Respondent's unique work schedule.
The plant was operated on a continuous basis
through the use of four shifts. Each shift worked for
42-1/2 hours during 3-1/2 days of each week. Such a
schedule had two distinct advantages over the
traditional 5-day, 40-hour workweek utilized by
other manufacturing companies in Newport: (1) 2-
1/2 hours of guaranteed overtime at premium pay,
and (2) 3-1/2 days off each week.17 While the
unusual work schedule made Respondent a viable
competitor for employees, the gross disparity in wage
scales made it difficult for Respondent to retain
quality workers, and almost from the outset of
operations the Newport plant manager repeatedly
pressured higher management for an across-the-
board wage increase.
The Newport facility manufactures double-knit
fabric exclusively. In late July or early August 1973,
the double-knit industry began experiencing a
nationwide decline. The decline reached epidemic
proportions for Respondent in early October when it
was forced to implement layoffs in all of its plants. In
Newport, one entire shift was eliminated and the
remaining three shifts were placed on a 5-day, 40-
hour workweek.'s Stripped of its unique work
schedule, Respondent began experiencing a rapid
turnover in personnel with the result that many of its
best workers were turning to other industries.19
Wolfer testified that it was in this context-in an
effort to stem attrition and retain quality employ,
ees-that . the decision to grant a 20-cent-per-hour
across-the-board wage increase was made.20
Wolfer's testimony provides a convincing explana-
tion for the timing of the wage increase. Respondent
having met its burden of going forward with the
evidence, the burden of persuasion (or proof)
thereupon devolved upon the General Counsel to
establish that Wolfer's explanation was in reality a
pretext to disguise an unlawful motive.21 The
General Counsel made no attempt to rebut Wolfer's
testimony-no witnesses and no documentation
whatsoever. Accordingly, Wolfer's testimony re-
mains totally uncontradicted.
The Administrative Law Judge and my colleagues
nevertheless find a violation through the expediency
it For employees with young children, this schedule was particularly
convenient. Since the one-half day was worked on Saturday, in many cases
it meant that babysitters had to be paid for only 3 days rather than 5 days.
is Respondent's claims that it was experiencing a bona fide economic
setback is supported by the fact that the unfair labor practice charges filed
by the Unions in response to these layoffs were dismissed by the Regional
Office.
19 Respondent knew from the outset that the schedule change would
encourage employees to find jobs elsewhere . It was for this reason that
1061
of relieving the General Counsel of his burden of
proof and placing it instead upon the shoulders of
Respondent. In the words of my colleagues, "No
affirmative evidence was produced to corroborate
Wolfer's testimony regarding motivation for the
raise . Accordingly, his testimony does not afford ,a
direct and substantial rebuttal of the prima facie case
made by the General Counsel." In essence, my
colleagues take the position that the uncontradicted
testimony of an unimpeached witness is legally
insufficient to meet a prima facie case. This is simply
not an accurate statement of the law. According to
Wigmore,22
[a] "prima facie" case . . . need not be overcome
by a preponderance of the evidence, or by
evidence of greater weight; but the evidence
needs only to be balanced, put in equiposie, by
some evidence worthy of credence; and if this be
done, the burden of the evidence has been met
and the duty of producing further evidence shifts
back to the party having the burden of proof
.... [Emphasis supplied.]
The prima facie showing of discriminatory motive
which my colleagues find here is based solely on
circumstantial evidence-the timing of the wage
increase during an organizing drive. Respondent
produced as a witness the very individual responsible
for granting the wage increase. That individual
offered direct evidence as to the economic factors
which prompted him to approve the increase. He was
unimpeached and his testimony was uncontradicted.
Respondent did, therefore, more than meet its
burden of coming forward with "some evidence
worthy of credence." Having done this, the burden
was then upon the General Counsel to go forward
with evidence to discredit Wolfer's testimony-not
Respondent's to substantiate it. As the First Circuit
stated in N.LR.B. v. Gotham Industries, Inc.: 23
[A]lthough the employer would have the burden
of coming forward with a substantial and legiti-
mate business justification once the- Board had
shown a harmful effect, the burden would remain
on the Board and "an affirmative showing of
improper motivation must be made.", [Citing
N.LR.B. v. Great Dane Trailers, Inc., 388 U.S. 26,
34 (1967).] This means an affirmative showing that
Respondent mailed a letter to all employees on the day the schedule change
was announced soliciting their patience and offering to "offset any
hardships or inconveniences that [they I may have suffered as a result."
20 Respondent provided advance written notice regarding the wage
increase to both Unions which were then interested in representing its
employees.
22 NLRB. v. Gotham Industries, Inc., supra.
22 9 Wigmore, Evidence § 2487 (34 ed. 1940).
22 406 F.2d at 1309, fn. 5.
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it was not the business purpose that caused the
employer's action . N.LRB. v. Billen Shoe Co.
[397 F.2d 801, 803 (C.A. 1, 1968)]. [ Emphasis
supplied.]
The Administrative Law Judge also refers to
several factors which, in his opinio}I, make Wolfer's
account less than persuasive . Again, such reasoning
falls wide of the mark. This precise issue was
presented to the Sixth Circuit in N.LRB. v.
Cleveland Trust Co., 214 F.2d 95, 99 (1954). As the
court there stated:
The trial examiner stated that the explanation
regarding the second increase is "not convincing."
The Board adopted this finding. But the burden
of proof rests not upon the [Respondent] to
convince the Board that the raise was not in
violation of the Act but upon the Board to prove
that the raise was illegal. N.LR.B. v. Asheville
Hosiery Co., 4 Cir., 108 F.2d 288; Martel Mills
Corp. v. N.LKB., 4 Cir., 114 F.2d 624; N.LRB.
V. Illinois Tool Works, 7 Cir., 119 F.2d 356;
Indiana Metal Products Corp. v. N.LR.B., 7 Cir.;
202 F.2d 613; Cupples Co. Manufacturers v.
N.L.R.B., 8 Cir., 106 F.2d 100; Law v. N.LRB.,
10 Cir., 192 F.2d 236.
This language was quoted with approval by the Fifth
Circuit in yet another case where the Trial Examiner
found the respondent's explanation "not at all
persuasive." 24
The plain and simple fact is that the General
Counsel has failed to prove that the November 1973
wage increase was motivated by a desire to influence
the employees away from unionization. In view of
Respondent's uncontradicted explanation for the
timing of the wage increase, a violation may not be
predicated upon the pleadings alone. Nor may
Respondent be required to shoulder the burden of
persuasion which properly belongs to the General
Counsel.
Accordingly, I dissent.
24 N.LR.B. v. Crosby Chemicals, Inc., supra The Administrative Law
Judge was troubled by the fact that the wage increase was granted at a time
when workers from the laid-off shift were presumably willing to work at the
existing rate . Even assuming that such workers were available and willing to
work on November 2-a fact not established in the record-this observa-
tion overlooks completely Respondent's desire to retain trained and
qualified employees . Wolfer testified that the primary purpose of the wage
increase was not to guarantee that a work force consisting of a certain
number of "bodies" was maintained , but rather to guarantee that those
quality employees which Respondent had trained would not seek employ-
ment elsewhere . Employee retention rather than employee acquisition was
the goal.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees con-
cerning union activities , threaten employees with
retaliation because of their union activities,
threaten to close or remove our plant from
Newport if the Union comes in , or solicit
employees to persuade other employees to refrain
from union activities.
WE WILL NOT in the future grant employees a
wage increase for the purpose of causing them to
reject a union as their collective-bargaining
representative.
WE WILL NOT in any like manner interfere with,
restrain , or coerce our employees in the exercise
of their Section 7 rights.
WE WILL NOT discharge or refuse to reemploy,
or otherwise discriminate against our employees
in order to discourage membership in, or support
of, United Textile Workers of America, AFL-
CIO, or International Ladies' Garment Workers
Union, or any other labor organization, or
infringe in any like manner upon the rights
guaranteed in Section 7 of the Act.
WE WILL offer Virginia Diane Shaver and
Earlene Smith immediate and full reinstatement
to their former jobs or, if their jobs no longer
exist, to substantially equivalent positions, with-
out prejudice to any rights or privileges to which
they are entitled, and will make them whole for
any loss of pay they may have suffered by reason
of our discrimination against them.
All our employees are free to become, remain, or to
refrain from becoming or remaining members of
United Textile Workers of America, AFL-CIO, or
International Ladies' Garment Workers Union, or
any other labor organization.
NEWPORT DIVISION OF
WINTER KNITTING
MILLS, INC.
DECISION
STATEMENT OF THE CASE
WELLINGTON A. GILLIS, Administrative Law Judge: This
case was tried before me on January 29-31, 1974, at
Newport, Tennessee , and is based upon charges and
amended charges filed by United Textile Workers of
America, AFL-CIO , and International Ladies' Garment
Workers Union, hereinafter referred to as UTW and
ILGWU, respectively, and jointly and severally as the
NEWPORT DIV. OF WINTEX KNITTING MILLS, INC.
Union, upon the complaint issued on December 12, 1973,
by the General Counsel for the National Labor Relations
Board, hereinafter referred to as the Board , against
Newport Division of Wintex Knitting Mills, Inc., herein-
after referred to as the Respondent or the Company,'
alleging violations of Section 8(axl) and (3 ) and Section
2(6) and (7) of the National Labor Relations Act, as
amended (61 Stat . 136), and upon an answer timely filed by
the Respondent denying the commission of any unfair
labor practices.
At the hearing, all parties were represented by counsel,
and were afforded full opportunity to examine and cross-
examine witnesses , to introduce evidence pertinent to the
issues, and to engage in oral argument . Subsequent to the
close of hearing, and within the March 19, 1974, extension
of time authorized for filing, timely briefs were submitted
by the General Counsel, the Respondent, and the ILGWU.
Upon the entire record in this case , and from my
observation of the witnesses, and their demeanor on the
witness stand , and upon substantial , reliable evidence
"considered along with the consistency and inherent
probability of testimony" (Universal Camera Corporation v.
N.LR.B., 340 U.S. 474, 496), I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Newport Division of Wintex Knitting Mills, Inc., is a
Delaware corporation with an office and place of business
located in Newport, Tennessee, where it is engaged in the
manufacture and shipping of double knit fabrics. During
the calendar year immediately preceding the issuance of
complaint, the Respondent manufactured and shipped
finished products valued in excess of $50,000 directly to
customers located outside the State of Tennessee. The
parties admit , and I find, that the Respondent is engaged in
commerce within the meaning of Section 2 (6) and (7) of the
Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties admit, and I find, that United Textile
Workers of America, AFL-CIO, and International Ladies'
Garment Workers Union, are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1. Whether, between August 5 and early November,
1973, the Respondent, through one or more of its
supervisors, engaged in conduct violative of Section 8(aXI)
of the Act.
2. Whether, in granting its employees a wage increase
on November 2, 1973, with knowledge of a pending
representation petition having been filed, the Respondent
did so for the purpose of causing its employees to reject the
1 The name of the Respondent appears as amended at the hearing.
s Unless otherwise noted , all dates refer to the year 1973.
s At the time of the incidents herein , Benjamin West's name was
1063
Union as their collective-bargaining representative in
violation of Section 8(a)(1) of the Act.
3. Whether, in discharging Jerry Wayne Hayes on
August 7, 1973, and Virginia Diane Shaver on October 15,
1973, the Respondent did so discriminatorily in violation
of Section 8(a)(3) of the Act.
4. Whether the Respondent discriminatorily discharged
Earlene Smith on November 13, 1973, in violation of
Section 8(a)(3) of the Act.
B. Facts
1. Alleged Section 8(a)(3) violations
a. Jerry Wayne Hayes
Commencing in July 1973,2 and then in September, the
Respondent, a comparatively new Company in Newport,
was confronted with organizational campaigns conducted
by the two Charging Unions. This proceeding is concerned
with alleged unlawful conduct on the part of the Respon-
dent during the late summer and the fall.
Jerry Wayne Hayes went to work for Respondent as a
warehouseman in the warehouse on April 25, 1973, where
he worked under Supervisor Curtis Hudson. Around the
first part of July, Hayes became a yarn transporter, the
only yarn transporter, on the B-2 shift. The B-2 shift at
that time ran from Saturday midnight to 6 a.m. Sunday,
then 12-hour shifts on Sunday, Monday, and Tuesday from
6 p.m. to the following 6 a.m., and then off until the
following Saturday at midnight.
On July 17, Hayes was involved in a motorcycle accident
and was in the hospital and off work until the start of the
B-2 shift at midnight, Saturday, August 4. The following
Tuesday, August 7, Hayes was discharged after having
been found sleeping on the job.
In early July, within a few days after Hayes commenced
the B-2 shift, Hayes had been reported as sleeping on the
job. When spoken to about it by Hudson, Hayes indicated
that he had had permission from Supervisor John Weigal
to do it as long as he was at his desk and could be reached
when needed. Hayes questioned this, and the two went into
the office of Plant Manager Benjamin West .3 West told
Hayes that he would not pay people for sleeping on the
job, and that the next time that he was caught sleeping on
the job would be grounds for his termination. Shortly after
that, in the presence of Hayes and several other warehouse
employees, Hudson questioned Supervisor Weigal about
telling his employees that they could sleep on the job at
night. Weigal denied having given such permission, and
Hudson made it clear to all that there would be no sleeping
on the job.
Upon returning to his job on August 4, after his period of
hospitalization, Assistant Plant Manager James Hearn had
occasion to speak with Hayes, during which conversation
he again outlined for him his responsibilities on the night
shift, and, in addition, reminded him that no magazines or
comic books were to be brought into the plant and that
there was to be no sleeping on the job.
Gunther Uhhg. He subsequently acquired U.S. citizenship and changed his
name. Because of this, the names are used interchangeably throughout the
record testimony.
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Monday night, August 6, Hayes was late in reporting
for work, arriving at 6:15 p.m. Irritated at Hayes because
he was late on his third day back, requiring that he work
over to wait for Hayes, Hudson first admonished Hayes for
bringing in a newspaper and then warned him not to get
caught sleeping. Shortly after 7 p.m., as security guards
James Self and Clifford Sane were changing shifts, they
noticed Hayes asleep at the receiving desk , leaning back in
his tilted chair, his mouth wide open, and his eyes shut. At
the same time, Supervisor Weigal and Floorlady Inez
Gregg walked up and all four witnessed for several
moments at close range Hayes asleep . Weigal tapped him
on the shoulder and woke him. Hayes' first words were to
the effect , "Am I fired?"4 Later, after Sane had written up
Hayes for sleeping, Weigal apprised West of the incident
and of those who had witnessed it, and asked him how he
wanted him to handle it. West told Weigal to instruct
Hayes to punch out and to report to West in the morning.
The following morning, August 7, upon reporting to
West's office, in the presence of Hudson, Assistant Plant
Manager Hearn and B- 1 shift supervisor, Richard Hart,
West told Hayes that he had warned him before for
sleeping on the job, that he could not pay people for
sleeping on the job, and that this was the last time. Hayes
protested only that he had just bought a car that day and
needed to keep his job, and that if he had another chance it
would not happen again. West then discharged Hayes.5
Contrary to the Respondent, which asserts that Hayes'
sleeping on the job after prior warnings was the sole reason
for his discharge , the General Counsel contends that Hayes
was discharged for having engaged in union activity. In
this regard, the evidence reveals that Hayes signed a UTW
card while in the hospital, that on Saturday, August 4, he
attended a union meeting at the Holiday Inn, and that
night , before reporting back to work at midnight after his
illness, he signed up some women on the B-2 shift. In
attempting to attribute to the Respondent knowledge of
Hayes' activity, Hayes testified to two union conversations,
one with Weigal around 2 a.m., on Saturday, August 5, and
the other with Hudson at 6:30 p .m., after the shift started
on Monday , August 6. As to the former , Hayes testified
that Weigal questioned him about the number of members
they had signed up , and stated that if the Union went in
the Company would have to be real strict, and that they
would have to fire employees for missing work or laying
out. Weigal denied emphatically having talked union with
Hayes on this occasion , testifying that he could not recall
ever talking with Hayes about the Union. I found Weigal
to be an extremely impressive witness during questioning
on the stand, quite the opposite of Hayes . I credit the
former's denial , and find that no such conversation took
place.
As to the second alleged conversation, Hayes testified
that , at 6:30 p .m., which would place it 15 minutes after
Hudson had reprimanded Hayes for being late and
keeping him from leaving work on time, "we was just
talking about the Union . . ." and Hudson , without
* In view of the fact that four credible witnesses testified that they saw
Hayes and that he was asleep, coupled with other mconststencea in the
testimony of Hayes , I do not credit in this regard Hayes' denial nor such
other of his testimony that is in conflict with that of Weigal, Self, Gregg,
Hearn, Hudson , or West or is at variance with the facts as found concerning
naming names , said the Union was not going to go in
because a lot of people here did not want a union, they did
not think a union would do any good and they were going
to try to keep it out if they could. Notwithstanding that
Hudson was not asked about this alleged incident , in view
of Hudson's admitted anxiety to leave the plant after
having been held up by Hayes' late reporting for work this
particular night, coupled with the mood he was in, it is not
probable that he stayed around to discuss the Union with
Hayes. Under these circumstances, including the serious
question I have with respect to Hayes' credibility, and the
fact that no other unlawful conduct is attributed to
Hudson, I find that this conversation did not occur. Even if
it had , I find that it constitutes neither unlawful Section
8(a)(l) conduct as alleged, nor evidence of company
knowledge of Hayes' union activity.
I find that the General Counsel has failed to prove by a
preponderance of the credible evidence that, in terminating
Jerry Wayne Hayes on August 7, 1973, the Respondent did
so for discriminatory reasons.
b. Virginia Diane Shaver
Virginia Shaver worked for Respondent from June 2,
1973, until her discharge on October 15, 1973. She started
as an inexperienced knitter under Supervisor Alvin Wilson
on the A-2 night shift, which at that time consisted of three
12-hour shifts, Wednesday, Thursday, and Friday from 6
p.m. to the following 6 a.m., and Saturday, 6 p.m. to
midnight. She learned to operate the full set of knitting
machines, five of them , in approximately 4 weeks time. In
mid-September , pursuant to her request, Shaver changed to
the day shift, working the same 12-hour type arrangement,
through October 4, at which time the whole plant went on
a 5-day week, with three 8-hour shifts. Shaver was, at that
time, switched to the B evening shift, operating between 3
and 1l p.m., which she worked for 1 week before her
October 15 discharge.
Upon punching in at 3 p.m. on October 15, and starting
her machines, her new shift supervisor, Richard Hart, came
by and asked her to go to the office with him. In reply to
her question as to why, Hart said it had to be rejects.
Shaver accompanied Hart to the office . In the presence of
Hearn, Hart, and West and the latter's secretary, West
asked Shaver if she knew she had any rejects last week. She
replied in the negative . He then handed her a reject sheet
for the week , with her name down for four rejects . Shaver
pointed out that the names of the other girls who were also
on the sheet with hers, and asked why she was the only one
being charged with the particular rejects . West merely
replied , "you did it." Shaver then said that mechanics had
worked on three of the machines more than three times,
and asked why, under the new policy of charging
mechanics for rejects after working on a given machine
three times , no mechanic had been charged . West again
charged Shaver with being responsible for the rejects,
indicating that he had let girls go for accumulating but
his discharge.
a Several weeks later , Hayes went back to the plant and asked for his job
back, advising West that he thought he deserved another chance and
indicating that he would try to do better . West refused the request.
NEWPORT DIV. OF WINTEX KNITTING MILLS, INC. 1065
three rejects in a week, and stated, "I can't afford in future
and at that time to keep people which give me seconds,
seconds, and seconds." When Shaver inquired as to
whether that meant that he wanted her to go, West handed
her an envelope containing her check.
While West left to answer a telephone call, Quality
Control Supervisor Harold Williams, entered the room
carrying signed reject tickets along with the material, and
additional sheets revealing the kind of rejects involved.
Shaver looked at them and agreed that all four constituted
rejects. Shaver pointed out the names of other girls who
had worked on the material involved in the reject including
a trainee, names that were on the reject cards, with hers,
and the name of the mechanic and the number of times he
had worked on the machines. Notwithstanding her protest,
Shaver was discharged.
The General Counsel asserts that Shaver was unlawfully
discharged because of her union activities, while the
Respondent contends that her termination was based upon
her having four rejects in one week.
With respect to the Union, the record reveals that Shaver
was active on behalf of the UTW. She attended a number
of union meetings starting on July 17, at which time she
signed a union card, and in September became a member
of the UTW Organizing Committee. She wore a UTW
button from ,the last of July until her discharge. That the
Respondent was aware of her union affiliation is revealed
by a couple of incidents, the first occurring in early August.
While working overtime on Supervisor Richard Hart's
shift, Hart noticed her union badge, and, touching it, said,
"You shouldn't be wearing that." Shaver replied that she
would wear what she wanted. On another occasion, on
October 4, shortly before her discharge, her own supervi-
sor, Albert Mathis, accompanied by personnel manager,
Roger Bryant, approached Shaver with a pen and paper in
his hand, and, pointing to her union badge, said, "Put one
down for UTW." Shaver's response was, "Yes, count me
in." 6
I find for the General Counsel with respect to this
discriminatee. While the record contains numerous pages
of testimony covering the whole realm of rejects, certain
overriding facts challenge the Respondent's assertion with
respect to Shaver's discharge. During her entire 5-month
employment with the Respondent prior to the week in
question, Shaver, on her own, had been charged with but
five or six rejects, during which period it appears that an
acceptable number of rejects was two per week. In this
regard, Quality Control Supervisor Williams testified that
company policy dictated that knitters whose names appear
two or three times a week on reject reports merely receive
warnings. Further, during this 5-month period, Shaver had
been complimented on her work as a knitter, at one time or
another, by Supervisors Mathis, Weigal, and Williams. In
fact, at the hearing, Williams, head of quality control,
admitted that Shaver was a very good knitter, and that she
had never received any warnings for rejects. It would
6 While these incidents reveal company knowledge of Shaver's union
association , neither is alleged as a Sec . 8(a)(1) violation, nor is it so found.
r Williams testified that a practice or policy to discharge a knitter who
accumulated four rejects in I week was adopted by the Respondent "a
couple of months before the layoff." Other than this assertion, however,
there is no credible evidence that such policy was ever made known to the
appear that Shaver had what might be considered an
outstanding record in this regard, particularly in view of
the fact that she started as an inexperienced knitter and
was trained on the job.
Thus, for the first time and with no prior warnings,
Shaver was called in on October 15, and discharged under
an asserted, and theretofore unannounced, policy of
having four rejects in 1 week.? As admitted by Williams,
two of the four rejects were not hers alone, one being
shared with a trainee who Shaver was helping, and the
other with a mechanic who had found it necessary to
expend excessive time working on the machine which
produced the reject. In refusing to listen to Shaver or to
answer her questions concerning the fact that others shared
two of the rejects for which she was being charged and
terminated, West misstated the situation by classifying
Shaver as one of those people who "give me seconds,
seconds, and seconds." Further, West's statement to
Shaver on this occasion to the effect that he had discharged
employees for having but three rejects, not only is not
substantiated on the record, but is totally inconsistent with
testimony of West's top quality control head, Williams, to
the effect that knitters may accumulate two or three rejects
a week and merely receive warnings.8 In fact, the record is
void of evidence that prior to this the Respondent had ever
discharged a knitter for having four rejects in a 1-week
period.
On the record as a whole, including the Respondent's
demonstrated union animus as well as its awareness of
Shaver's continued union adherence, I am of the opinion,
and so find, that the Respondent seized upon its reject
records for the week in question and used them as a pretext
for terminating a known union adherent. I find that, in
discharging Virginia Shaver on October 15, 1973, the
Respondent did so discriminatorily and in violation of
Section 8(a)(3) and (1) of the Act.
c. Earlene Smith
Earlene Smith went to work for the Respondent as a
knitter on September 15. Around the 1st of November,
Smith, having heard there was a possibility of a raise, asked
her supervisor, Albert Mathis, if the employees were going
to get a raise. Mathis replied that he would talk to her later.
Mathis approached Smith at her machine later in the
morning and asked her if she were earning $1.75 an hour,
and, upon learning that such was the case, Mathis told her
that she would be getting a 25-cent raise. At this point,
Smith asked Mathis whether the Union was coming in.
Mathis replied that it had better not, that "if it does, they'll
close those front doors out there."
Thereafter, on November 10, Smith signed a union
authorization card for the ILGWU. The following Mon-
day, the union representative gave Smith a union button
and asked her to wear it. Smith did not do so that day, but
on Tuesday, November 13, she put it on her left shoulder
employees.
8 Further, according to Shaver, employees are normally apprised of a
reject within 24 hours of the occurrence . On this occasion , none of the
rejects for the week in question was made known to her until she was called
to the office the week following
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and wore it to work. The button, white with blue and red
lettering, is 1-1/2 inches in diameter, and, in addition to
the name of the Union in fairly small print, contains the
words "SHOP COMMITTEE."
Around 8 a.m., Mathis noticed the button and comment-
ed, "Well, look at that," to which Smith replied, "Yes, how
about that?" About an hour later, Assistant Plant Manager
Hearn walked up to Smith while she was operating one of
her machines, and told her to take the button off and to
put it away, stating that he would pretend that he never
saw it. Smith asked Hearn to repeat that, which he did, this
time referring to it as "the damned button." Smith told him
that she was not going to pull the damned button off, to
which Hearn replied, "either pull the button off or get
out." Smith answered that she would get out. With both
voices raised at this point, Hearn asked if she needed an
escort out, and Smith replied in the negative, stating that
she did not need one coming in and she did not need one
going out. Hearn followed her to the clock, and, meeting
Floorlady Barbara Hudson, told her that he did not want
anyone out on the floor with a button on. Hearn then
repeated this directive to a guard, stating that he did not
want anyone out in the plant with a button on.
As Smith was clocking out, Hearn told her that "you can
pull the button off and come back." Smith retorted that she
would be back, but that she would have the button on.
Smith left, and has never returned.
Contrary to the assertion of the Respondent that this
termination was a voluntary termination on Smith's part,
and even assuming that Smith's manner may well have
provoked Hearn's removal demand and the argument that
ensued, the fact remains that, in order to continue at work
she had but one choice, the removal of her union button.
As it has long been recognized that, absent special
circumstances not here present, employees have the right
to wear union insignia at work and that such is a protected
activity,9 Smith's decision to leave the plant rather than to
remove her union button cannot be classified as a
voluntary termination. Thus, I find that, on November 13,
by demanding that she either pull her union button off or
get out, resulting in her doing the latter, the Respondent
discharged Earlene Smith, and that such discharge was
discriminatory and in violation of Section 8(a)(3) and (1) of
the Act.1o
I also find, as alleged, that the statement of Albert
Mathis to Smith on the 1st of November that the Company
would close its doors if the Union came in constitutes an
unlawful threat within the proscription of Section 8(a)(1) of
the Act.
2. Alleged Section 8(axl) violations
Around mid-August, while in the quality control office
looking for Supervisor Harold Williams , and, not finding
him, Hearn was in the process of leaving when employee
Donna Shetley asked to speak to him for a minute .11 They
went outside where she volunteered the fact that she had
attended a union meeting the night before , and, without
specifying which union, asked Hearn if he were interested
9 Consolidated Casinos Corp. Sahara Division, 164 NLRB 950 (1967).
10 Eckerd's Market, Inc., 183 NLRB 337 (1970).
11 Donna Shetley was one of many employees involved in a mass
in what was said . Hearn replied, "of course," and Shetley
proceeded to mention something about pay raises. Hearn
thanked her, and that ended the conversation. Contrary to
Hearn's version, above, Shetley testified that this occurred
in the quality control office, that Hearn said he had heard
that they were attending union meetings, and that he asked
her what the Union was offering, and said that he needed
this information for someone other than himself. Based
upon their comparative demeanor while testifying on the
stand, I credit Hearn' s version of the incident and find no
Section 8(a)(1) violation with respect thereto.
Toward the latter part of September, while in Assistant
Plant Manager Hearn's office, according to the uncontro-
verted testimony of employee Paul Palmer, Hearn asked
Palmer, "strictly off the record" what the employees had
against the other union coming in. Palmer replied by
saying that he could not speak for the others but that he
personally felt he should not go to the other union because
the UTW had tried to come in first. Palmer asked Hearn
which of the two unions was the better. Hearn proceeded
to tell Palmer that the other union had a half million
members , and that ". . . if any union was more effective to
come in , it would be the other Union, the Ladies'
Garment." Neither Hearn nor Supervisor Harold Williams,
who was also present, was questioned concerning this
conversation. I find that Hearn's conduct in initiating the
questioning concerning the feelings of employees toward
"the other Union" constitutes unlawful interrogation
within the proscription of Section 8(a)(1) of the Act.
Uncontroverted also is the testimony of former employee
Kathy Kelly,12 who testified that around the 1st of August,
her supervisor, Alvin Wilson, approached her at her
machine and volunteered "that the man in New York said
that we would get a raise when the unions left." Whether
Wilson's statement constituted a threat to withhold a raise
until the Unions left or a promise of a raise when they left,
I find that it was designed to undermine the Unions'
organization efforts and to interfere with, restrain, and
coerce the employees. As such it constitutes conduct
violative of Section 8(a)(1) of the Act.
Employees Donna Shetley and Carolyn Wood about the
1st of September were discussing UTW handbills while at
their quality control station. Supervisor Harold Williams,
who was close by, told the girls that he had heard the
strongest support for UTW was in quality control. When
Shelley answered that she, along with Wood, were
planning to handbill the plant on Saturday, Williams said
that they had best not. When asked why, Williams
responded, "You'd just best not." Williams was not
questioned on this, and accordingly, Shetley's testimony
from which this is taken stands unrefuted. I find that
Williams' conduct constitutes a threat of retaliation for
engaging in union activity, and, as such, a violation of
Section 8(a)(1) of the Act.
Around mid-September, employee Martha Lou Strange,
while at the desk of inspector supervisor, Shirley Woods,
was asked by another employee, Archie McAllister,
whether she were still interested in the Union. When
economic layoff on October 5, 1973.
12 Kelly was discharged on September 19 for having too many rejects.
NEWPORT DIV . OF WINTEX KNITTING MILLS, INC.
Strange answered that she was, Woods looked up and said
to her, "You'd better get the Union out of your mind if you
want this plant to stay in Newport." Woods then told the
two employees that at a recent meeting of supervisors,
Plant Manager West requested that all supervisors ask the
employees not to talk about unions or getting any more
cards signed . Woods also relayed West' s warnings that the
plant would be closed down if a union got in . Woods,
speaking to Strange , then said, "With your personality, I
thought you can (sic) talk to the girls and stop the cards
from being brought in the plant ." When Strange asked why
a union should not come in, suggesting that the employees
needed outside help, Woods reiterated that if a union got
in, the Company would automatically move out of
Newport.
Several days later, on September 23, Strange overheard
Woods telling another employee, identified only as
Sinards, "that the plant would be closed down if we did get
a union in." Woods was not called upon to testify in this
proceeding , nor were McAllister and Sinards, both of
whom are no longer with the Respondent, and thus,
Strange 's credited testimony stands unrefuted.
Inasmuch as threats of probable plant closings are
among the most flagrant and serious interferences with the
right of employees to decide for themselves questions of
union representation, I find that the conduct of Woods in
threatening the closing of the plant and its removal from
Newport if the Union came in, on both occasions, as well
as her solicitation of Strange to persuade other employees
to refrain from union activities , constitutes interference
with, coercion , and restraint of employees violative of
Section 8(a)(1) of the Act.
With respect to the final allegation of Section 8(axl)
conduct, the Respondent on November 1 sent a letter to
both unions advising that it intended to provide an
immediate wage increase to its employees. On November
2, the Respondent did just that, granting to every employee
in the plant a minimum 20-cent wage increase . By letter of
November 5, the ILGWU responded, objecting to the
increase and requesting that the Company bargain with
respect thereto . The General Counsel asserts that, in
granting the wage increase with knowledge of the pending
representation petition , the Respondent did so for the
purpose of undermining the Unions' organizational efforts
and causing its employees to reject the Unions. The
Respondent , in defending its across-the-board wage
increase , asserts that the Company's decision in this regard
was solely economically motivated , and that it was based
upon the necessity of attracting and retaining good
employees.
It is well-established at this point that an employer may,
during a union campaign , conduct his business as he
otherwise would. By the same token , it is also well-
recognized that he may not promise or grant benefits,
including a wage increase , to his employees during an
organizational campaign where a purpose thereof is to
cause the employees to reject the Union as their collective-
bargaining representative . In support of the Respondent's
position , Joseph Wolfer, Respondent's New York-based
13 Under the four-shift , 7-day workweek , wherein the plant operated on
% 24-hour basis , employees worked 3-1 /2 days , were off the other 3-1/2
1067
vice president, who personally was responsible for author-
izing the wage increase , testified that in early summer 1973
the double knit industry throughout the country started to
experience a severe recession ; that because of this and the
fact that the wage structure at the Respondent's Newport
plant was well below the local manufacturing level
rendering it difficult to retain good workers, Plant
Manager West frequently , throughout the summer and fall,
had requested that the Respondent authorize a pay raise;
that on October 5, because of the depressed state of the
industry, the Respondent changed from a four-shift, 7-day
operation to a three-shift, 5-day workweek, resulting in the
elimination of one shift and a simultaneous economic
layoff of 40 production employees, and that because of this
management decision , unwise as it may have been, the
Respondent was not able to compete in the Newport area
labor market, it having lost its several advantages attached
to the former, unique, 7-day operation.13
Absent evidence to substantiate that which the Respon-
dent, through Wolfer, asserts, I am compelled to find
unjustified the Respondent's decision to grant the general
wage increase on November 2. Militating against the
Respondent's assertion is the fact that the double knit
industry became depressed in June but no reduction in
force occurred until October 5; West allegedly commenced
his request for a wage increase for the employees in June
but it was not until November after two labor organiza-
tions had become active in attempting to organize the
employees that permission was given to grant the wage
increase; the wage increase was granted at a time when the
industry was in a depressed state ; although pleading that
the Respondent could attract only untrained , unskilled
employees , and thus could not compete in the labor market
with other local manufacturers , Wolfer was unable to
testify as to the number of employment applications on file
or the number of employees still on layoff status , nor was
there any showing that the laid off employees were other
than trained and skilled employees willing to work at the
old rate of pay. Under these circumstances, including the
other unlawful conduct engaged in by the Respondent, I
find that, in granting its employees a wage increase on
November 2, 1973, the Respondent did so for the purpose
of causing its employees to reject the Unions as their
collective-bargaining representatives in violation of Section
8(a)(1) of the Act.
Upon the basis of the above findings of fact and upon
the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. Newport Division of Wintex Knitting Mills, Inc., is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. United Textile Workers of America, AFL-CIO, and
International Ladies' Garment Workers Union, are labor
organizations within the meaning of Section 2(5) of the
Act.
3. By engaging in interrogation of employees concern-
ing union activity, threats to close or to remove the plant
days, and averaged 42-1/2 hours work each week , whereas, under the 5-day
workweek, the employees worked but a 40-hour week.
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from Newport if the Union came in, and solicitation of
employees to persuade other employees to refrain from
union activities , the Respondent interfered with, restrained,
and coerced its employees in the exercise of rights
guaranteed by Section 7 of the Act in violation of Section
8(axl) of the Act.
4. By granting its employees a wage increase on
November 2, 1973, with knowledge of a pending represen-
tation petition having been filed , the Respondent did so for
the purpose of causing its employees to reject the Unions
as their collective-bargaining representative in violation of
Section 8(axl) of the Act.
5. By discriminating in regard to the hire and tenure of
employees of Virginia Diane Shaver on October 15, 1973,
and Earlene Smith on November 13, 1973, thereby
discouraging membership in and activity on behalf of labor
unions, the Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section 8(aX3)
and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
7. By discharging Jerry Wayne Hayes on August 7,
1973, the Respondent did not violate Section 8(aX3) of the
Act.
THE EFFECT UPON COMMERCE OF THE UNFAIR
LABOR PRACTICES
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent 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.
THE REMEDY
It having been found that the Respondent has engaged in
certain unfair labor practices , it is recommended that it
cease and desist therefrom and that it take certain
affirmative action which is necessary to effectuate the
policies of the Act.
It having been found that the Respondent discrimonato-
rily discharged Virginia Diane Shaver on October 15, 1973,
and Earlene Smith on November 13, 1973, thereby
violating Section 8(a)(3) and (1) of the Act, it is recom-
mended that the Respondent offer the above-named
individuals immediate and full reinstatement to their
former jobs , or if their jobs no longer exist , to substantially
equivalent positions without prejudice to any rights and
privileges to which they are entitled , and make them whole
for any loss of pay they may have suffered by reason of the
discrimination against them, by making payment to them
of a sum of money equal to the amount they would have
earned from the earliest date of the discrimination to the
14 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.
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
date of the offer of reinstatement , less net earnings during
said period to be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289 (1950), and shall include the
payment of interest at the rate of 6 percent per annum to
be computed in the manner set forth by the Board in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
It is further recommended that the Respondent preserve,
and upon request, make available to the Board or its agents
for examination and copying, all payroll records and
reports, timecards , and all other records necessary to
compute the amount of backpay.
Although it has been found that the Respondent
unlawfully granted its employees a wage increase on
November 2, 1973, it is not recommended that the
Respondent be ordered to rescind its action in this regard
or to retract the wage increase.
Upon the foregoing findings of fact, and conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER 14
The Respondent , Newport Division of Wintex Knitting
Mills, Inc ., its officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in or activity on behalf of
United Textile Workers of America, AFL-CIO, or/and
International Ladies' Garment Workers Union, or any
other labor organization, by discharging or refusing to
reinstate any of its employees , or in any like manner
discriminating in regard to the hire or tenure of employ-
ment, or any term or condition of employment, in violation
of Section 8(aX3) and (1) of the Act.
(b) Interrogating its employees concerning union activi-
ties, threatening to close or to remove the plant from
Newport if the Union comes in, and soliciting employees to
persuade other employees to refrain from union activities.
(c) In any like or related manner , interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Virginia Diane Shaver and Earlene Smith
immediate and full reinstatement to their former jobs, or if
their jobs no longer exist , to substantially equivalent
positions without prejudice to any rights and privileges to
which they are entitled, and make them whole in the
manner and in accordance with the method set forth in the
section entitled "The Remedy." 15
(b) Preserve , and upon request , make available to the
Board or its agent, for examination and copying , all payroll
records, social security payment records and reports,
timecards, and all other records necessary to compute the
amount of backpay due under the terms of this recom-
mended Order.
deemed waived for all purposes.
15 Consistent with my finding in this regard , I hereby grant the motion of
the ILGWU, made at the close of hearing , to order the reinstatement of
Earlene Smith.
NEWPORT DIV. OF WINTEX KNITTING MILLS, INC.
(c) Post in conspicuous places at its Newport , Tennessee,
plant , including all places where notices to employees are
customarily posted , copies of the attached notice marked
"Appendix." 19 Copies of said notice , on forms provided by
the Regional Director for Region 10, after being duly
signed by an authorized representative of the Respondent,
shall be posted by it immediately upon receipt thereof, and
maintained for at least 60 consecutive days thereafter.
Reasonable steps shall be taken by the Respondent to
16 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 be changed to read
1069
ensure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint' be dismissed
insofar as it alleges the unlawful discharge of Jerry Wayne
Hayes or any other violations of the Act not specifically
found.
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."