Wix Corp.

National Labor Relations Board - Board Decisions

Aug 17, 1961

132 N.L.R.B. 1059 (N.L.R.B. 1961)

WIX CORPORATION 1059
Photographs disclose that a sign identical with that utilized on the automobile at
Television City in Oakland was placed on the windshield of an automobile parked
at the San Francisco location . Respondent concedes herein that it established
pickets at both the San Francisco and Oakland locations of Packard Bell. This
picketing activity was carried on for approximately 21/2 months until late in De-
cember 1959.
It is clear from the foregoing that Respondent had a primary dispute with Packard
Bell and that it established a picket line pursuant thereto at the Packard Bell premises
in San Francisco and Oakland . This was the location of the primary employer and
indeed consisted of the very two locations at which the dispute had arisen and at which
operations were being carried on with replacements or strike breakers.
The requisites of the Moore Drydock decision , 92 NLRB 547, are met because
Packard Bell was carrying on its normal business at the site , the pickets were close to
the locus of the business and the signs were limited to the dispute . Furthermore, this
was the location of the primary dispute and not a location removed therefrom.
Brewery and Beverage Drivers and Workers Local Union No. 67, etc. ( Washington
Coca-Cola Bottling Works, Inc.), 220 F. 2d 380 (C.A.-D.C.). In view of the fore-
going considerations , I see no merit to this aspect of the case and recommend its
dismissal.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above , occurring in connection
with the operations of the company described in section 1 , above, have a close, inti-
mate, 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 Respondent has engaged in certain unfair labor practices, I
shall recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Radio-TV Service Technicians Union Local 202, International Brotherhood of
Electrical Workers, AFL-CIO, is a labor organization within the meaning of Section
2 (5) of the Act.
2. By threatening , restraining , or coercing a person in an industry affecting com-
merce with an object of forcing him to cease doing business with another person, Re-
spondent has engaged in unfair labor practices within the meaning of Section
8(b) (4) (ii) (B) of the Act.
3. The aforesaid unfair labor practice is an unfair labor practice affecting com-
merce within the meaning of Section 2 ( 6) and (7) of the Act.
4. Respondent has not otherwise engaged in unfair labor practices within the
meaning of Section 8 (b) (4) (ii) ( B) of the Act.
[Recommendations omitted from publication.]
Wix Corporation and International Union , United Automobile,
Aircraft and Agricultural Implement Workers of America,
UAW, AFL-CIO. Case No. 11-CA-1627-2. August 17, 1961
DECISION AND ORDER
On March 15, 1961, Trial Examiner Thomas F. Maher issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
132 NLRB No. 87.
614913-62-vol. 132-68
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices as alleged in
the complaint, and recommended that these particular allegations be
dismissed. Thereafter, the Respondent, Wix Corporation, the Gen-
eral Counsel, and the Charging Party, International Union, United
Automobile, Aircraft and Agricultural Implement Workers of Amer-
ica, AFL-CIO, filed exceptions to the Intermediate Report and sup-
porting briefs.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings z conclusions, and recommen-
dations of the Trial Examiner,' except as indicated below.
1. The Trial Examiner found, and we agree, that the Respondent
independently violated Section 8(a) (1) of the Act by threats of dis-
charge and reprisal, interrogation of employees, requests for surveil-
lance, threats to close the plant, and undue restriction of employee
movement about the plant, all of which were calculated to discourage
union activity.
Like the Trial Examiner, we find that the Respondent ditscharged
C. Hoyle, S. Hoyle, Ross, Greene, Mayberry, and Buchanan because
of their union activities in violation of Section 8(a) (3) of the Act.
3. We do not agree with the Trial Examiner's finding that Almond
was discharged for insubordination. The record discloses that Al-
mond's job as a painter was geared to the production line. While the
line was broken down, thus shutting down his operation and leaving
him temporarily idle, he left the paint room on several occasions in
order to smoke. On one such occasion, his foreman, Wilkinson,
ordered him not to leave the paint room except during official break
periods, and further informed him that he, Wilkinson, had knowledge
that Almond and others were attempting to organize, and that they
'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Members Rodgers, Fanning,
and Brown]
2 In adopting the finding of the Trial Examiner as to the Respondent's knowledge of
employee Jackson's activity in behalf of the Union, we do not rely upon the Trial
Examiner's finding that on April 18, 1960, Foreman Ellis stated to Jackson at the plant
that he. Ellis, had heard something about Jackson talking union and trying to get union
cards signed , which were not appreciated The record shows, and the parties stipulated,
that Ellis was ill at home between April 13 and 26, 1960. We therefore conclude that
the statement was not made, and we do not rely upon it as proof of the Respondent's
knowledge
3In adopting the Trial Examiner's finding that Taylor's discharge was not a violation
of Section 8(a) (3) of the Act since the Respondent was not shown to have been aware
of his union sentiments, and it therefore could not have discharged him for such senti-
ments, we take cognizance also of the testimony of employee Louis Warren that, shortly
prior to Taylor's discharge, he caught Taylor stretched out on a couch in the ladies' room
during working hours, as indicating a discharge for cause.
WIX CORPORATION - 1061
would lose their jobs if they did not do as they were told. Almond
was discharged when, shortly thereafter, he again left the paint room
to smoke while the production line was still down, but at a time other
than an official break period.
While we agree with the findings of the Trial Examiner that Wil-
kinson's actions placed an undue restriction upon Almond, and that it
was a deviation from the normal treatment of other employees, we
cannot agree that such actions were proper and reasonable, or that
Almond's attitude in leaving the paint room for the last time was
one of deliberate defiance. We cannot view Almond's discharge in
isolation, but find that it was part of a pattern of unlawful conduct
engaged in by the Respondent, especially when viewed in the light of
the similar discriminatory discharges of Greene and Buchanan.
Greene, one of the union leaders among the employees and over
whom Wilkinson had no basic authority, was ordered by Wilkinson
to remain at,his desk, yet his job as timekeeper necessitated his move-
ment about the plant. Greene, like Almond, continued to move about
the plant in performing his work and was subsequently discharged
for the alleged reason of inability to perform his work.
Buchanan, also an active union adherent, was ordered by Wilkinson
not to leave his machine except during official break periods. Bu-
chanan credibly testified that prior to this suddenly imposed personal
restriction, he was under instructions not to leave his machine while
it was running. Several days later Buchanan, who was ahead in his
work and despite Wilkinson's order, left his machine after shutting
it down. Wilkinson then met Buchanan and admonished him because
he ran 75 improper cuts on a machine that normally ran 2,000 to 3,000
cuts per hour. Wilkinson discharged Buchanan for the alleged rea-
sons of leaving his machine and because of negligent work.
The Trial Examiner found, and we agree for the reasons set forth
in the Intermediate Report, that Greene and Buchanan were dis-
charged not because they had not performed properly their respective
jobs, or because of disobedience of a reasonable order, but for union
activity.
Almond's discharge was but another phase of this unwarranted
course of conduct. While it is true that it is presumptively lawful for
an employer to apply such penalties as it may desire for the breach of
its working rules, this does not mean that the Respondent was free to
disregard the statutory rights of its employees.' Thus, Wilkinson's
tactics of singling out the leaders of the union movement and of dis-
charging them under the pretext of violation of restrictions newly
promulgated by him and applied only to the said union leaders were
designed to accomplish this disregard of employee rights.
* Walton Manufacturing Company, 126 NLRB 697; J. I Case Company v N.L R B ,
321 U. S. 332, 337 (C A. 7).
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Therefore, it would appear that the Respondent's real reason for
discharging Almond was not his disobedience, but, rather, Respond-
ent's desire to rid itself of another active participant in union activity.
Moreover, even assuming Almond's disobedience offered a justifiable
reason for his discharge, it is no defense where, as here, it was not the
moving cause.' Viewing the case in its total aspect, we reject the Re-
spondent's reliance on a naked right to discharge for alleged insubor-
dination, based upon improper and unlawful motivation. Accord-
ingly, we find that, contrary to the Trial Examiner, the Respondent
violated Section 8(a) (3) of the Act by discriminatorily discharging
Almond.
ORDER
Upon the entire record in this case , and pursuant to Section 10(c)
of the National Labor Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respondent , Wix Corporation,
its officers , agents, successors , and assigns , shall :
1. Cease and desist from :
(a) Discouraging membership in International Union, United
Automobile , Aircraft and Agricultural Implement Workers of Amer-
ica, UAW, AFL-CIO, by discharging or in any other manner dis-
criminating against employees in regard to hire and tenure of em-
ployment or any term or condition of employment.
(b) Threatening its employees with loss of employment if they join
or discuss the Union , threatening to close its plant rather than deal
with the Union , interrogating its employees concerning the union
membership and activities of its other employees and requesting them
to inform on their fellow employees in such respect, and unduly re-
stricting the movement of its employees about its plant for the pur-
pose of discouraging union activity.
(c) In any other manner interfering with, restraining , or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist any labor organization , to bargain collectively
through representatives of their own choosing , and to engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all of such
activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
( a) Offer to Michael Keith Greene , James Buchanan, Charles E.
Ross , Hartwell C. Almond, Carl Hoyle, Shirley Hoyle , and Brent
6 Lester Brothers, Incorporated, 131 NLRB 1144, R E Smith, et at., a partnership,
d/b/a Southern Dolomite, 131 NLRB 513; N.L.R B. v. C. & J. Camp, Inc., at at., d/b/a
Kibler-Camp Phosphate Enterprise, 216 F. 2d 113, 115 (CA. 5) ; Wells, Incorporated v
N.L R B, 162 F. 2d 457, 460 (C.A. 9) ; N.L R B v. Texas Independent Oil Company, Inc,
232 F. 2d 447, 450 (C.A. 9).
WIX CORPORATION 1063
Mayberry immediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their seniority or
other rights and privileges, and make each of the aforesaid employees
whole for any loss he may have suffered by reason of the Respondent's
discrimination against him in the manner set forth in that section of
the Intermediate Report entitled "The Remedy." As the Trial Ex-
aminer recominended dismissal of the complaint as to Almond, in
computing the amount of backpay to which Almond is entitled, the
period from the date of the Intermediate Report, March 15, 1961, to
the date of the Order herein, August 17, 1961, is excluded.
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay due un-
der the terms of this Order.
(c) Post at its plant at Gastonia, North Carolina, copies of the
notice attached hereto marked "Appendix." 6 Copies of said notice,
to be furnished by the Regional Director for the Eleventh Region,
shall, after being signed by the Respondent's authorized representa-
tive, be posted by the Respondent immediately upon receipt thereof,
and be maintained for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director for the Eleventh Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed, insofar as it alleges that the Respondent violated Section
8 (a) (3) of the Act in the discharges of Robert Taylor, Ray H. Jack-
son, and Mable Cates.
6In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our employees that :
WE WILL NOT discourage membership in International Union,
United Automobile , Aircraft and Agricultural Implement Work-
ers of America , UAW, AFL-CIO, by discharging or in any other
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manner discriminating against our employees in regard to hire
or tenure of employment or any term or condition of employment.
WE WILL NOT threaten our employees with loss of employment
if they join or discuss the Union, threaten to close our plant
rather than deal with the Union, interrogate our employees con-
cerning the union membership and activities of their fellow em-
ployees and request them to inform on their fellow employees in
such respects, nor will we unduly restrict the movement of our
employees about our plant for the purpose of discouraging union
activity.
WE WILL offer the following named employees immediate and
full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority and other rights
and privileges, dismissing, if necessary, any employee hired fol-
lowing their discharges, and we will make each employee whole
for any loss of pay he may have suffered by reason of our dis-
crimination against him.
Michael Keith Greene Carl Hoyle
James Buchanan Shirley Hoyle
Charles E. Ross Brent Mayberry
Hartwell C. Almond
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of their right to self-
organization, to form, join, or assist any labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purposes of
collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
WIx CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges filed on May 12 and June 16, 1960 , by International Union, United
Automobile , Aircraft and Agricultural Implement Workers of America , UAW, AFL-
CIO, herein referred to as the Union , the Regional Director of the National Labor
Relations Board for the Eleventh Region on June 27, 1960, issued his complaint
against Wix Corporation , herein referred to as the Respondent, alleging violations
of Section 8 (a) (1) and ( 3) of the National Labor Relations Act, as amended, herein
called the Act. In its duly filed answer Respondent , while admitting certain allega-
tions in the complaint , denied the commission of any unfair labor practice.
Pursuant to notice , a hearing was held before Thomas F. Maher, the duly desig-
nated Trial Examiner , at Charlotte , North Carolina , on August 8 through 11, 1960.
WIX CORPORATION 1065
All-parties were represented at the hearing and were afforded full opportunity to be
heard, to introduce relevant evidence, to present oral argument, and to file briefs
with me: Parties waived oral argument and in lieu thereof the Charging Party there-
after filed a brief with me.
Upon consideration of the entire record and the brief of the Charging Party, and
upon my observation of the witnesses,' I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Wix Corporation is a North Carolina corporation with its plant and principal
office located at Gastonia, North Carolina, where it is engaged in the manufacture
and sale of filters for internal combustion engines. While so engaged Respondent
annually transports finished products valued in excess of $50,000 directly to points
outside the State of North Carolina. Upon the foregoing facts stipulated at the
hearing, I find that it is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act.
III. THE ISSUES
1. The unlawful character of Respondent's restriction of employee movement,
threats to them, interrogation of them, and request of one of them to engage in
surveillance.
2. The discriminatory character of Respondent's termination of six of its employees.
3. The absence of evidence of Respondent's knowledge of employee Taylor's
union membership.
4. The justification for Respondent's discharge, of employees. Almond, Cate, and
Jackson.
IV. THE UNFAIR LABOR PRACTICES
A. Introduction
Employee interest in the Union first developed in late February and early March
1960 upon the arrival on the scene of Union Representative Jackson A. Crump,
who sought out employees Carl Hoyle and Charles Ross and enlisted each of them,
and others, to assist in the organization of the Respondent's employees. Both Ross
and Hoyle signed cards authorizing the Union to act as their bargaining representative
and volunteered to secure additional signatures and volunteer workers Ross enlisted
the aid of employee Michael Keith Greene who signed a card and thereafter busied
himself soliciting memberships among Respondent's employees. Meanwhile Hoyle
secured a number of signatures as did a number of the other volunteers, including
employees Mayberry, Jackson, Almond, and Buchanan.
Company officials questioned, on. the subject disclaimed any awareness of the flurry
of union activity among the employees. Indeed Industrial Relations Director Robert
H. Smith, presumably sensitive to such matters, claims that his first awareness of the
union activity among the Wix employees was on or about May 12, upon the receipt
of a copy of a charge filed with the Board alleging that certain employees had been
unlawfully discharged. Foreman David Junod dates his knowledge of the Union
to the same time, claiming that Smith first mentioned it to him. Other supervisors
claimed to have been equally unsuspecting; Foreman Charles Wilkinson, James
Killian, and Bill Mauney 2 claimed they first learned of the Union after April 18,
by which time three active union protagonists had been discharged; Foreman Cable
insists he did not know of the activity until May 4 or later. A number of other super-
visors, on the other hand, were never questioned on the subject of union activity
among the employees. These were Second Shift Foreman Johnny Ellis, Quality
i Unless specifically indicated to the contrary, any credibility evaluation I make of the
testimony of any witness appearing before me is based, at least in part, upon his or her
demeanor as I observed it at the time the testimony was given. 'Cf. Bryan Brothers
Packing Company, 129 NLRB 285. To the extent that I indicate hereafter that I reject
in part or entirely the testimony of any given witness, it is my intent thereby to indicate
that such part or whole of the testimony, as the case may be, is discredited by me.
Jackson Maintenance Corporation, 126 NLRB 115, footnote 1.
'For reasons that I shall set forth in detail hereafter (infra, footnote 22), I find
Mauney to be a supervisor within the meaning of the Act
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Control Foreman Jenks Dellinger and his assistant, Lewis E. McLaughlen, Foremen
Kane , Cannon,3 Fry, and Johnson.
It was for Foreman Hershal Welsh, whose testimony I credit, to fix a date of
company awareness of union activities that most reasonably conforms with what I
view to be the realities of the general situation. Thus Welsh testified that at some
undetermined date in April, before or around the middle of the month, "sometime
like that," he found out about the Union "just by word of mouth; hearing people
talk; sometimes people ask questions about it-employees." This version of when
Respondent, through its supervisors, learned of the organizing efforts of its employees
most nearly conforms with the credited testimony respecting certain incidents to be
considered in detail hereafter, and establishes Respondent's knowledge of the union
activities as at least of early April, and I so find. In so finding I reject as unbelievable
the testimony of supervisors who claim they knew nothing of what was happening
in this respect, for to give credence to them on this matter of general plant interest
would be to deny them a degree of intelligence and awareness, generally, which they
amply displayed at the hearing.4 Furthermore, the fact that seven of the supervisors
who testified for Respondent were not questioned on the matter, some of whose
testimony I credit hereafter, is significant. Indeed Respondent's failure to question
its supervisors in this respect warrants the inference that their answers would not
have been favorable .5
Upon the foregoing circumstances as summarized above and as will be set forth
in detail throughout this report, I find ample evidence to support a conclusion that
"the Union activities were carried on in such a manner, or at times that in a normal
course of events, Respondent must have noticed them." 6
B. Interference, restraint, and coercion
1. Threats of discharge and reprisal
As the union campaign first got underway in late February, Foreman Charles
Wilkinson and employee James Buchanan engaged in a conversation which was a
portent of Wilkinson's later conduct. As Wilkinson was giving Buchanan his pay-
check Buchanan volunteered the remark that the check would have been doubled if
he belonged to a union. Whereupon Wilkinson replied, "I don't want to hear you say
any more about the union, I will have to let you go if you say any more about it."
Shortly thereafter Buchanan passed Wilkinson in the aisle and Wilkinson repeated his
statement. When Buchanan expressed his right to give his own opinions Wilkinson
replied, "No, you won't, not as long as you work for me." 't
3 Foreman Cannon, while not questioned about the Union generally, denied knowledge
of one employee's, Mayberry's, union activity.
4In specifically rejecting Industrial Relations Director Smith's claim of lack of knowl-
edge, and discrediting his testimony generally, I rely, among other things, upon his
testimony related to the Cates discharge (infra). Thus Cates testified that she phoned
Smith 2 weeks after her April 8 discharge and accused the Company of branding her as
prounion, a characterization which she denied. Smith, in his testimony, acknowledged
this conversation, stating "she phoned to inform me that at the Employment Office some-
one had told her that she had been let go because she was a member of the Union." By
this statement Smith has inadvertently conceded some knowledge of "the Union"
2 weeks after April 8, and thus contradicts his insistence that his first knowledge of the
Union was on the May 4 arrival of the charge in this proceeding.
A further example of Smith's equivocation in this respect is his testimony that there
was union talk, to his knowledge, prior to the filing of charges but not talk about
the UAW.
6 N L.R B. v. Homedale Tractor & Equipment Company, 211 F. 2d 309, 315 (C A. 9) ;
Spartanburg Sportswear Company, 116 NLRB 1914, 1926.
Foreman Fry, like Industrial Relations Director Smith (supra, footnote 4), testified
that employee Cates came to him after her April 8 termination and told him she had
been accused of being prounion When Fry testified that "up until her termination, I
had no knowledge of her being connected with any union in any way," he implies, and
I so find, that from then on, if not previously, he was conscious of the Union's presence.
e Hadley Manufacturing Corporation, 108 NLRB 1641, 1650. Nor does the conclusion
I have reached relate in any manner to the size either of the plant (1,000 employees) or
of the city (Gastonia, North Carolina) In which it is located
7 The credited testimony of Buchanan, corroborated in part by employee Brown whom
I also credit. Brown testified that he walked away as Wilkinson was telling Buchanan
WIX CORPORATION 1067
Wilkinson again became involved in a discussion concerning the Union on April 13
at a time when he was imposing smoking restrictions upon employee Hartwell Almond,
a painter, which restrictions resulted in his discharge (infra). When Almond ques-
tioned Wilkinson's order restricting him and asked "what he had it in for me about,"
Wilkinson stated that it was the new rule and continued, in the words of Almond
whom I credit:
He said that he was wise to what we were doing and trying to organize a Union
down here and said that a bunch of us guys was going to lose our jobs if we
didn't do what we was told.
Previously, in mid-March in another department of the plant, a number of women
employees, including Shirley Hoyle, were heatedly discussing the Union when, accord-
ing to Shirley Hoyle's credited account of the incident, Foreman Boyd Killian
approached the group and said, "Do all you girls know that you can get fired for even
mentioning the Union?" 8
Shortly before his discharge, an item to be discussed in detail hereafter, employee
Carl Hoyle, an inspector, was approached at his desk by Foreman David Junod
who told him, with a touch of vulgarity, that he was going to "get" him. When
Hoyle asked for an explanation Junod stated, "Well, you know all this shakeup
about the Union. You are up to no good. You haven't been married too long and
I would hate to see you and your wife both out of a job, you have been out a few
days, you know." 8
It is also alleged that Foreman Johnny Ellis threatened employees on or about
April 4. This allegation, however, rests upon the testimony of employee Cates whom
I do not credit. Furthermore, employee Shirley Crisp, a witness called by the
General Counsel, was allegedly present when the conversation took place. While
Crisp creditably admitted to the conversation she denied that she ever had been
spoken to by supervisors. I shall accept Ellis' denial of the conduct attributed to him
by Cates and make no finding with respect to the incident.
2. Interrogation of employees and request to engage in surveillance
Several days following the April 15 discharge of employee Michael Keith Greene
(infra), Supervisors Mauney and Wilkinson called employee Troy Slagle to the
office. In the words of Slagle, whom I credit:
[Wilkinson] asked me . . . if I knew anyone that belonged to the union or
giving out any cards or anything like that, and he said he thought H. C. [Almond]
and Keith (Greene] were in for the union and I told them that they were for it.
They asked me if I knew of anyone on our group line or anyone else besides
them, and they named a couple of names, Buchanan and Jim Hagen and
couple more , I don't know right now that worked in there, if I knew anybody
else that worked there that belonged to or had anything, any cards that belonged
to the union they would like to know.
* * * * * * *
They told me if I found out anybody, why to let them know and not to come
not to mention "this here again in this plant," and he did not hear the remainder of
the conversation.
I do not credit Wilkinson 's denial of this or other statements or conduct attributed to
him, nor do I credit him generally except insofar as his testimony is corroborated by
credible witnesses or constitutes an admission contrary to Respondent 's interest
8I do not credit Killian 's denial of this or other conduct attributed to him. Upon my
observation of him at the hearing , and also upon consideration of his unbelievable denial
that he was aware of the union activity prior to April 17, I will not credit his testimony
except when otherwise corroborated by the testimony of credible witnesses.
Shirley Hoyle 's account of the union discussion was corroborated by two Respondent
witnesses , employees Wallace and Pintoll, both presently employed at the plant. Both
witnesses further testified , however, that Killian was not present . In accepting Shirley
Hoyle's credible account I necessarily reject so much of the testimony of these two
other witnesses as conflicts with it.
8 The credited testimony of Hoyle. I reject Junod 's denial of this and other conduct
and statements attributed to him. Junod testified that the first knowledge he had of the
Union was when charges were filed against the Company, naming him. As previously
noted ( supra ) I deem such a statement unbelievable and will not credit Junod except as
his testimony is corroborated by the testimony of credible witnesses or as an admission
contrary to Respondent 's interest.
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
directly to them but to tell Mr. Mauney and he would tell Wilkinson, not to come
straight to them.io
It is also alleged that Supervisor Welsh had, on another occasion, engaged in
similar conduct. I find no evidence in the record, credible or otherwise, of any
interrogation of employees or request of them to engage in surveillance that could be
attributable to this individual. Accordingly, I shall recommend that so much of the
complaint as pertains to such conduct on the part of Welsh be dismissed.
3. Threat to close the plant
As the union campaign was getting under way, in late February or early March,
Carl Fry, a supervisor, had a conversation with employee Ross in which the Respond-
ent's attitude toward the Union was clearly demonstrated Thus Fry stated "that the
Company could not stand the union and that if the union got in, it would close
the plant, could not stand it financially, I understand." 11
4. Restriction of employee movement about the plant
The organization of the employees reached its height by mid-April and the leaders
among them were actively soliciting memberships and discussing the Union through-
out the plant. Respondent at this junctpre undertook to limit the movement of
these leaders by imposing restrictions not previously known to the employees and
which had no stated relation to production problems. Thus employee Hartwell
Almond, a painter, credibly testified that on April 13, when he reported for work
he found the assembly line broken down. His operation was a part of this line
and consequently he could not work. From then until the line began to function,
several hours later, Almond left the paintroom on numerous occasions and for a
variety of reasons, including smoking which was prohibited in the paintroom. He
visited with employees on the broken-down assembly line during this period, and
twice assisted the mechanics, at their request, in getting the line back in operation.
At the conclusion of the 12 o'clock "smoke break" Foreman Mauney, and,later on,
Foreman Wilkinson, reprimanded Almond for leaving the paintroom. Almond
described the incident thus:
Yes sir, Bill Mauney came up to me just as the break ended and said he wanted
to see me a minute, and he went walking up towards the end of the line up
there, to the end of our department and I walked up and he said that it wasn't
his idea, said Mr. Wilkinson told him and he had to pass it on that the painter
was not to be out of the paintroom anymore when it wasn't break time, said
I was supposed to stay there all the time when not on break time, and I asked
him, if he would ask Mr. Wilkinson to come to the paintroom.
Wilkinson came to see Almond, as requested. Almond described this encounter:
I asked him what he had it in for me about and he said he didn't have it in for
me, he said it was just something that they had started and it was for all painters
and said all painters were going to have to stay in the paintroom when they
weren't on break time.
For reasons previously stated I do not credit either Wilkinson's or Mauney's
account of this incident. I do, however, credit Foreman Welsh who corroborated
Almond's account in one respect. Almond sought out Welsh to see if a new order
restricting painters had really been issued and Welsh told him he knew of none.
Welsh also testified that painters were required to stay in the paintroom except
during official work breaks. This is a reasonable rule, not in dispute. Almond's
absence occurred when the assembly line was not functioning, hence Welsh's explana-
tion had no application here. Welsh further noted that "if there is a break down,
then there is other work that needs to be done in the paintroom." This requirement
10In essence both Wilkinson and Mauney, whom I find to be supervisors (infra, foot-
note 22), admit that this incident occurred. Thus Wilkinson concedes, "I just asked
Slagle, came out and asked him, 'Troy, do you know of anything that is going on' "
I do not, however, credit his statement that Slagle volunteered to find out for him.
Similarly, Mauney admits that "we called Mr. Slagle up ,to ask what was all the whisper
ing going on, if he knew anything about it." As in the case of Wilkinson I do not credit
his testimony that Slagle volunteered to find out what further union activity had
transpired.
u The credited testimony of Ross Foreman Fry, whom I credit generally, was not,
questioned concerning this incident
WIX CORPORATION 1069
is equally inapplicable , for the restriction was not shown to have been imposed
because Almond was failing to do work , but simply because "it was the rule," an
explanation which I do not accept.13
On the same date Foreman Wilkinson issued a similar order to employee James
Buchanan , a pleater operator , whom he had previously threatened to discharge if he
said any more about the Union . Wilkinson had observed Buchanan talking with
employee Greene earlier in the evening as they exchanged authorization cards. The
essence of Wilkinson's subsequent instructions to Buchanan was that he was never
to leave his machine to talk to anyone except at breaktime. Buchanan credibly
testified that the instructions under which he had operated previous to this incident
were that he was not to leave his machine when it was running. Until Wilkinson's
order to him on this occasion he had never been restricted to the machine in this
manner.
A further instance of Respondent 's restrictions upon the leaders of the Union was
Foreman Ellis' April 11 order to employee Greene, a timekeeper, to remain at
his desk unless his duties took him elsewhere. Ellis was inspired by Foreman Wilkin-
son's report that Greene "had been roaming all over the plant." 13 Wilkinson's
observation of Greene in this respect agrees with the credited testimony of such
employees as Brown, Almond, Buchanan, and Ross, each of whom described nu-
merous instances of Wilkinson's sudden appearance when several of the union leaders
among the employees, particularly Greene, would be in conversation.
5. Analysis and conclusions
Although the record is replete with descriptions of Greene's wanderings about
the plant, and although it is clear that as a timekeeper he had business on all three
floors of the plant, I cannot accept Respondent's explanation that Wilkinson's report
of his roamings and his eventual restriction of Greene's movements were grounded
upon considerations of efficiency, particularly when Greene's job was, by its very
nature, one that took him about the plant. I conclude and find that this action,
like the restrictions placed upon Buchanan and Almond, were for the purpose of
interfering with , restraining , and coercing them and the other employees in their
exercise of statutory right of self-organization , and I so find.
In concluding as I have with respect to restrictions placed upon employees, I
have given full consideration to my earlier findings with respect to Respondent's
interrogation of its employees, its threats of discharge and reprisal and of closing
the plant, and its request of employee Slagle to spy upon the union activities of
fellow employees. Citation of authority is unnecessary to establish that such con-
duct, singly as well as collectively, is the sort that has ever been found to interfere
with employees in the exercise of their rights guaranteed them by the Act, as well as
to restrain and coerce them in such respects. Accordingly, I find that the conduct,
as detailed herein, is of like nature and violates Section 8(a) (1) of the Act. In so
finding I am-not unmindful that Respondent too has certain rights in the conduct
of its business and the control and disciplining of its employees. But when, as here,
the enforcement of previously unenforced rules and the promulgation of new ones
coincides with the peak of its employees' campaign of self-organization, a situation
which it viewed with antipathy, it is reasonable for me to conclude, as I do, that
Respondent's conduct was motivated not by sound economic considerations, but by
its opposition to the Union as expressed by the statements and conduct of its re-
sponsible supervisors.
C. The discriminatory discharges
1. Carl Hoyle
Employee Carl Hoyle, a setup inspector, was first employed in February 1947
and was discharged on April 18, 1960, allegedly for excessive absences. As previ-
ously noted, Hoyle was among the first of the employees to become interested in
12 Almond testified that upon applying for State unemployment compensation a hearing
was held and a question was raised as to the penalty that would be imposed because of
the discharge involved At this hearing Supervisor Loggins appeared and stated that it
was company policy for the painter to go outside and smoke when there was a breaktime
or a breakdown on the line Because of this testimony Almond was not penalized.
Loggins was not called to testify in contradiction to this statement attributed to him
by Almond.
1s For reasons that I shall detail hereafter , I do not rely upon the testimony of em-
ployee Greene (infra, footnote 20).
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organizing the plant and was thereafter singled out by Supervisor Junod as being
marked for reprisal. Junod, in this encounter it will be recalled, linked Hoyle with
the Union, told him he was "up to no good," and threatened to "see" Hoyle and his
wife, Shirley, both out of a job. And by way of indicating the means he would use,
continued, "you have been out a few days, you know."
Hoyle's wife, Shirley, became ill over the April 9 weekend and reported in sick'
on Monday, April 11. By April 14 her condition had worsened to the point that
she was ordered to the hospital where she underwent surgery on the following day,
Friday, April 15. Employee Hoyle was at work on April 11 and 12 but on the
13th he stayed at home because of his wife's illness and sent word of his absence
to the plant through a fellow employee, Albert Shuler. Inasmuch as his supervisor,
Junod, referred in his testimony to this absence and did not deny receiving Hoyle's
message that he would be out, I must assume that Respondent was aware of Hoyle's
excuse for the April 13 absence. Moreover, Junod's and Respondent's understand-
ing in this respect are more firmly established by Junod's admission that he gave
Hoyle 4 hours off on Friday, April 15, the day of Mrs. Hoyle's operation. When
Hoyle returned to work on the following Monday, April 18, Junod informed him
he was being discharged for excessive absences.
It is Respondent's position, first that Hoyle, with 12 absences during 1960, had
been frequently warned, and secondly, that he was specifically discharged for failing
to work on the Saturday following his wife's operation. As to the latter contention
the facts are vague. Stacy, a roving inspector operating as a communication link
between Supervisor Junod and the other inspectors,14 "did not think" he authorized
Hoyle to be off on Saturday the 16th. As it was Stacy who conveyed to Hoyle
Junod's permission to be off for 4 hours on Friday, and as Stacy does not have a
firm recollection of the Saturday permission, d credit as virtually uncontradicted
Hoyle's statement that when he asked Stacy if he were to be in on Saturday, Stacy
replied, "No it has already been covered, I will see you Monday." 15
As to the absences for which Hoyle had been allegedly warned, it is appropriate
to note their cause. In addition to the time off because of Mrs. Hoyle's illness and
the disputed absence of Saturday, April 16, Hoyle credibly testified that he absented
himself from work when he was married in mid-February and again in March when
members of his family were involved in an automobile accident in the western part
of the State, which accident required his presence there.
Respondent's contrasting policy respecting absences of other employees and its
stated attitude in the handling of personal matters is equally revealing. Thus Super-
visor Fry credibly testified that during the same 1960 period employee Frances
Merideth incurred 19 absences. "During the time most of those absences occurred
Mrs. Merideth sent [Fry] notes from the doctor that she was under the doctor's
care." Hoyle, on the other hand, reported in on each of his absences, not merely
"most of them," as in Merideth's case. Merideth, however, is still in Respondent's
employ and testified at the hearing in Respondent's behalf on another matter. She
was not questioned as to her excessive absences.
As to Respondent's policy of issuing warnings such as Hoyle was allegedly given
for his absences, Industrial Relations Director Smith stated that,
We try to look into a man's. background and see if he's having difficulty, and
maybe we would need not to warn him so much, we come and advise him and
show him where he's having trouble and try to help him if we can. Sometimes
if it is family trouble well we wouldn't consider that a warning as much as we
consider it his counsel.
There is nothing in the record to suggest that Smith or any of the supervisors dis-
cussed with Hoyle the several personal problems that caused the absences for which
it is claimed that he, unlike employee Merideth, was discharged.
A review of the foregoing facts and circumstances surrounding Hoyle's discharge
immediately suggests that it was for some reason other than excessive absence. By
contrast, employee Merideth, with 50 percent more absences for a like period, is still
employed. And regardless of her reasons, she was just as absent when it was
excused for illness as she would have been were the absences for domestic or other
personal reasons. Furthermore, the timing of Hoyle's discharge is significant, com-
11 Stacy's credited testimony.
15 Much evidence was offered to prove Stacy's lack of supervisory status. I find this
unnecessary to resolve. Stacy, by his own admission , was something in the nature of a
"straw boss," who operated as a channel of communication from management. Hoyle,
therefore, had no reason to suspect that Stacy was deliberately or otherwise misrepre-
senting management when he indicated that the Saturday assignments had been covered.
WIX CORPORATION 1071
ing as it does at the peak of employee organization and following Foreman Junod's
threat to get him and his wife, and his hint of the stratagem, absences, that he
would use. Upon these considerations I have no alternative but to conclude that
Hoyle's absences were but a convenient excuse to eliminate him as a known and
"marked" union proponent. In so concluding one further observation would be
pertinent-Respondent's attitude toward its employees. To accept Respondent's
contention as to Hoyle and his wife (infra) would be to view the Company and its
supervisors as calloused overlords in whom the milk of human kindness had turned
to cheese. The record and my observation of these individuals belie such an esti-
mate. On the contrary I accept at face value Smith's general statement of policy
on personal problems as quoted above, and I note its application in employee
Merideth's case of continuing to work despite her 19 absences. Respondent has
not established on the record that it applies harsh employee relations policies, and
that is demonstrated throughout this report by the treatment shown union proponents
as contrasted with the demonstrated treatment to employees generally. What Re-
spondent has demonstrated upon the facts found herein, and I so conclude, is that
through its supervisors it was dedicated to an elimination of the Union, and to ac-
complish this end discriminated against union adherents in the misapplication of
otherwise reasonable rules. Insofar as Hoyle is concerned I have found that he,
like others whom I will consider hereafter, suffered such discrimination by Respond-
ent's discharge of him. Such conduct on the part of Respondent constitutes a clear
violation of Section 8(a) (3) of the Act.
2. Shirley Hoyle
Shirley Hoyle was employed in February 1960, and worked in P. C. packing de-
partment until termination in April. While not active in the Union, her husband
was. She was a member of the Union and was one of the group who was dis-
cussing it when Supervisor Killian interrupted and told them they could be fired
for talking Union (supra). Mrs. Hoyle last worked for Respondent on April 8
She became sick on the weekend following, and on Monday, April 11, she reported
her illness to Supervisor Killian. As previously noted, her condition worsened dur-
ing the week, she was ordered to the hospital on April 14, and underwent surgery on
the following day. Respondent, and in particular her supervisor, Killian, were fully
aware of Mrs. Hoyle's illness.
Upon Mrs. Hoyle's return from the hospital she continued under the doctor's care
and was under his instructions to remain at home for at least a week. At the end
of the week she made several attempts to see the doctor and obtain his release.
In the meantime on Wednesday, April 20, anticipating her release, she called Super-
visor Killian and told him she would be back to work on Monday, April 25. She
could not get an appointment with the doctor until Tuesday, April 26, at which time
he released her. She immediately reported to Respondent's plant and presented
her release slip to the nurse who told her to report to work that night. She then
called Foreman Killian to advise him of her return. Killian, upon his own admission,
told her that in view of her failure to report on the previous day, as she had earlier
stated she would, he had terminated her and processed her termination papers.16
It is Respondent's position that Shirley Hoyle voluntarily quit her job. Super-
visor Killian emphasized, however, that he discharged her for not appearing as ex-
pected, and in a note in his own handwriting, sent to the personnel office when Mrs.
Hoyle failed to appear (Respondent's Exhibit No. 6), Killian stated:
Shirley called me last Wednesday (April 20) and said she would be in Monday
25th. I haven't seen or heard from her since if you heard from her let me know
but as of now she's fired until we know something that might change our minds.
Industrial Relations Director Smith, on the other hand, testified that Mrs. Hoyle was
not discharged, but that her termination was classified as a "voluntarily quit." And
in explanation he stated that they "have a rule if he doesn't report in within two
days we consider them voluntarily quitting."
I cannot believe that Respondent's supervisors conversant with the circumstances
of Shirley Hoyle's illness are or were so insensitive to the minimums of human kind-
ness as to discharge or otherwise terminate a recently hospitalized victim of surgery
merely because, and for a good cause, she returned to work 1 day later than her
'The foregoing is the credited testimony of Shirley Hoyle. For reasons previously
stated ( supra, footnote 3), 1 do not credit Killian's testimony in this or other matters
except when corroborated by the testimony of credible witnesses
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
estimate. Indeed a review of the, credited facts in Mrs. Hoyle's case demonstrates
a degree of dispatch in terminating her that could hardly be equaled by the most
efficient of personnel offices. Such eagerness to thus dispose of Mrs. Hoyle's case
and terminate her suggests to me not that Respondent is as soulless in such matters
as would appear, but rather that Killian was putting into effect the threat previously
made to Mrs. Hoyle's husband that the both of them would lose their jobs for Mr.
Hoyle's union allegiance . Such a conclusion is inescapable . Falarski Sausage Com-
pany, 128 NLRB 506.
Upon a consideration of the foregoing , therefore, I conclude and find that Shirley
Hoyle was terminated not because of the technicality of a voluntary quit, but for
reasons of her union membership and her husband' s union activity. Such a ter-
mination clearly constitutes a discrimination by Respondent within the meaning of
Section 8(a) (3) of the Act.
3. Charles E. Ross
Employee Charles Ross was first employed by Respondent in January 1957 and
when terminated on April 18, 1960, was engaged as a timekeeper on the second
shift. His immediate supervisor was Lewis McLaughlen, assistant to Quality Con-
trol Supervisor Jenks Dellinger. As previously noted, Ross and Carl Hoyle were
the first two employees enlisted by Union Representative Crump to assist in the
organization of the employees. Ross was instrumental in enlisting the support of
numerous other employees in this venture, including employees Greene and Almond.
Ross habitually carried a supply of blank union authorization cards with him and
was in frequent conversation with fellow organizers and prospective members.
That Respondent was aware of Ross' interest in and activity on behalf of the
Union is evident from the interest which its supervisors showed in Ross' activities,
and from Ross' undenied assertion that in a car pool conversation (supra) he stated
to Supervisor Fry that he was in favor of the Union.
On the evening of April 11, shortly before his discharge and immediately after
he had signed up employee Greene, Ross asked Greene to see him at the next work
break for some blank cards that Greene might want to use in soliciting new mem-
bers. As directed, Greene came to Ross' work place and in the presence and hear-
ing of Supervisor Kane, who was working with Ross on a broken adding machine,
asked Ross for some cards. Ross went to a nearby coat hook and took the cards
from his jacket pocket and returned to his desk where Greene was then tinkering
with the adding machine in the company of Kane. Ross stuck the cards in Greene's
pocket in full view of Kane and without any attempt to conceal the action.17
Thereafter on Thursday evening, April 14, Ross, in the company of employee
Greene, encountered Supervisor Wilkinson. Ross credibly described the incident:
One night it was after that, still about the middle of the month, I don't remember
the exact date, Mr. Greene, I had loaned him my car, and he had started to
leave work that afternoon , or that night, and he couldn't get it started, so he
came to me and asked me if I would help him, and I went out, outside after I
had finished up, him and myself and J. W. Bush, I believe, went out, and after a
few minutes I got it started, and he started, and he got under the wheel, and
I asked him to drive me back to the door to get my coat. I left my coat in the
plant, and I was ready to go home also, and he drove me up to the door, and
I got out, and after I got out of the car, I thought maybe he would have some
cards, I was out at the time, and asked him if he had some extra cards, and he
said that he did, and he reached in the glove compartment to get them, and he
had them all mixed up, the signed cards with the unsigned cards, and he started
to turn the light on, and the particular car didn't have a light on the inside, so
we got out and walked around to the front side of the car, and he was separating
them, getting the signed cards and the unsigned cards separated, and I looked
up and seen Mr. Wilkinson on the platform, and I told him that I was, I told
him that there was Charlie, and he turned around and seen him, and Charlie
said, "What are you all doing down there?" and Greene said, "Well I am having
car trouble, and also having card trouble," and Mr. Wilkinson walked back in the
plant.
Mr. Greene drove off, and I went on in the plant to get my coat, and as I
came out, I met Mr. Wilkinson coming up the aisle there, and he asked me
again what we were doing out there, and I told him I was getting some cards,
and he said I have the cards in my shirt pocket, he had already seen them, and
17 The credited testimony of employee Ross I do not credit Dane's denial that he saw
the cards being passed or that he heard any mention of them
WIX CORPORATION 1073
so he said , "You know Keith is already in trouble , and you had better stay
away from him if you like to work here," and I assured him that what we were
doing was legal, and walked on out.
Upon the foregoing credited evidence , I find and conclude that Respondent was
well aware of Ross' union prominence and activity , and that it was equally aware of
Greene's activity ( infra ). This being so, the action taken against Ross on the
following workday , Monday, April 18 , assumes aspects completely at variance with
Respondent's detailed explanations.
When Ross arrived at work Lewis McLaughlen, Supervisor Dellinger' s assistant,18
met him at the time clock and told him that he "had some bad news for him." When
Ross inquired , McLaughlen replied , "Well they have been on me in my department
to cut down, and the only thing I know to do is to lay you off." Whereupon Ross
protested that Waters, the other timekeeper on the shift, had 2 years less seniority, but
McLaughlen explained that Waters had made a better rating on the timekeeper
test than had Ross. Ross testified, however, and without contradiction, that Waters
had told him that he had not taken such a test.
In support of its action Respondent not only relies upon the test score for its
selection of Ross for layoff but it also asserts, through Industrial Relation Director
Smith , that seniority is the least important criterion in cases of layoff or promotion.
As justification of its determination to curtail the number of timekeepers, Respondent
presented evidence, particularly through Smith, that two timekeepers were found
to be doing the work of one. Smith 's explanation follows:
Well, after a discussion we found out that we had two men that were time-
keepers doing about one man's work and when we laid him off we didn't need
to replace him. We have since, we have changed, our workload has changed
but actually one man was able to do the work he was doing as well as his own.79
Consideration of the reasons Respondent assigned to Ross for his layoff, as
further explained by Smith at the hearing , indicate a plausible excuse for the action
taken. The timing of this action, however, is another matter. Here we have a
personnel action directed against the leader of the employees ' organizing campaign
taken at the height of that campaign, during a period when Respondent was otherwise
manifesting its antipathy to the employees' action (supra) and taken after it had
observed Ross' activity on two occasions, the latter being on the previous workday.
Under such circumstances , it is entirely reasonable for me to infer and conclude
that business necessity was but an excuse upon which Respondent relied to effect
this summary removal of the one of the men whose actions were most distasteful to it.
Accordingly, I find that Charles Ross was terminated not for lack of work, as
claimed, but for reasons of his union membership and activity. As such conduct
on the part of the Respondent constitutes a discrimination against Ross in this
respect I find that Respondent has violated Section 8(a)(1) and ( 3) of the Act by
terminating him.
4. Michael Keith Greene
Employee Michael Keith Greene, whose activities have been described at random
heretofore, was first employed by the Company in September 1958 and when termi-
nated on the afternoon of April 15, 1960, was employed as a timekeeper2e
Upon consideration of the restrictions placed upon Greene's activities, which con-
duct I have already found to constitute unlawful interference , restraint , and coercion,
and in view of Greene 's close association with employee Ross, particularly as
described above (supra ), I have no doubt that Respondent was aware of Greene's
union activity and in the words of Supervisor Wilkinson , as quoted by Ross, "Keith
is already in trouble, you had better stay away from him if you like to work here."
This warning to Ross occurred after Wilkinson had watched and inquired about the
18I reject Respondent 's contention that McLaughlen was not a supervisor McLaughlen
testified without contradiction that Ross' layoff was the result of his own decision. This
meets the statutory requirement for supervisory status as required by the Act
10 Supervisor Dellinger, whose testimony I credit generally, was not questioned as to
Ross' termination although he was the immediate superior of McLaughlen, who effected
the termination
20I do not credit Greene's testimony except when corroborated by the credible testi-
monv of other witnesses Upon my obseivation of him he impressed me as a voluble in-
dividual whose testimony fluctuated constantly between fact and flights of imagination
and theoretical discussion For these reasons, mainly his demeanor and the nature of
his testimony, and for no other reason , I do not rely upon Greene and accordingly dis
credit him with the qualification noted above
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union card swapping that was going on between Ross and Greene by the light of
Ross' auto headlights. The trouble that Keith Greene was "already in" crystallized
on the following afternoon after he reported to work. Until April 14 Greene was
assigned as timekeeper on the third, or night shift, period. On April 14 Supervisor
Dellinger transferred him to the second, or afternoon, shift, for lack of work on the
third shift. But on the following morning (incidently several hours after Wilkin-
son's observation of Ross and Greene in front of the auto headlights) Industrial Re-
lation Director Smith called Dellinger to the office, informed him that he made a
mistake in transferring Greene from one shift to the other, and that instead Smith
thought they "should get rid of this man." 21 Greene was thereupon laid off. Ac-
cording to Smith, who directed Foreman Dellinger to "get rid of" Greene,
We found that his work was not satisfactory and we were replacing all time-
keepers with girls. . . .
He was studying on the job. He was going to school and he was temporary
laborer so far as we were concerned. And we hired him because he was a
student, and he wasn't able to perform the duties and keep up with his studies
at the same time. He slept, and was known to have slept in his car and just
generally speaking he was not a satisfactory employee.
As I do not credit Smith I do not accept this evaluation of Greene. But I do quote
it here for the purpose of judging Respondent's reason for the layoff, as explained
by Smith. In my judgment it is a fabrication and I need only refer to the credited
testimony of Supervisor Dellinger for support of my conclusion. Dellinger was
Greene's immediate superior, presumably aware of Greene's abilities and shortcom-
ings. Dellinger stated categorically that Smith, and not he, was responsible for
Greene's termination, and that Smith did not tell him why they should "get rid of
this man." Certainly if Smith knew all about Greene's shortcomings, Dellinger
should have been equally informed. As I do not credit Smith's version, I must
necessarily conclude that the reasons suggested by him, and not known to Greene's
superior, Dellinger, were not, in fact, the reason for Greene's termination. On the
contrary, and upon consideration of Greene's prominence in the organizing cam-
paign, Respondent's knowledge of it, antipathy toward it, and its interference with
it by restricting Greene's movements, I am clearly persuaded that the reasons as-
signed for Greene's layoff and the Respondent's unwillingness to recall him were but
pretexts for the true reason-Greene's union activity. As such conduct by Respond-
ent constitutes an unlawful discrimination against Greene for reasons proscribed by
statute, I find that it has violated Section 8(a)(3) of the Act.
5. Brent Mayberry
Employee Brent Mayberry began with the Company in January 1960 as a stock-
room attendant. Shortly after the organizing campaign got underway employee
Keith Greene signed him up in the Union and thereafter Mayberry himself solicited
other employees. In the course of this organizing activity he procured several ap-
plications and on one occasion, as he was in the process of signing employee Cleon
Diddicks, Supervisor Mauney 22 came into the restroom where this card signing was
in progress and Mayberry, with several cards in his hand, stuck them in his pocket;
but not before Mauney was well in the room.23 Upon the strength of this particular
incident I find that Respondent was aware of Mayberry' s union activity, learning of
it as it did through Supervisor Mauney, who appears frequently to have been close
at hand when employee organizing efforts were taking place.
Shortly thereafter, on April 21, Supervisor Cannon, in charge of inventory con-
trol, called Mayberry at his home and told him that he was fired because of a
mixup created by the substitution of packing cartons and the mispacking of filters.
Filters manufactured in the plant are of several sizes and varieties and are dis-
tributed under several trade names and for other wholesale customers There are,
for example, Wix filters and Walker filters, slightly different in overall size and
-i The credited testimony of Foreman Dellinger
22 Contrary to Respondent's position I find Mauney to be a supervisor Mauney's own
description of his duties as a leadman indicates that he responsibly directs other em-
ployees and is not merely a message relayer for his supervisor Other employees, in-
cluding employee Warren, credibly testified that Mauney assigned them duties
Mayberry testified that a third person whose identity he could not recall was in the
room when Mauney came in Employee Buchanan testified to the same incident, thus, in
effect substantiating Mayberry whom I credit. I do not credit Mauney's denial of the
incident Diddicks was not called as a witness
WIX CORPORATION 1075
therefore packed in slightly different size cartons. These cartons are distinguished
by a code number imprinted on the side , and known to the packing and stock em-
ployees, including Mayberry; the Wix carton being the slightly shorter of the two.
When Mayberry arrived at the stockroom at the beginning of his shift on April
18, he found an order for cartons that had not been completely processed. The
order called for Walker cartons, but the cartons that had already been procured and
placed with the order sheet by someone in the stockroom on the previous shift were
actually Wix cartons. Mayberry noted this discrepancy but assumed (and as it
turned out, incorrectly) that the substitution of one type carton for another had
been approved , as had substitutions on isolated previous occasions .24 Whereupon
Mayberry physically corrected the order blank to show the substituted carton and
left a note of what he had done for Supervisor Mauney. Because I credit neither
Mauney nor Supervisor Cannon, who is ultimately responsible for this phase of
production, I cannot determine as a fact whether or not Mayberry's warning was
actually conveyed to Cannon, although Cannon did testify that he never discussed
Mayberry with Mauney. If then, we were to accept Cannon's testimony it would
suggest that Mauney either ignored Mayberry's notice of the carton substitution
or approved it; but nevertheless permitted the error to be compounded by the
faulty packaging which followed. In any event, when the error of packing was
discovered (and it has not been shown in the record to have been discovered by
information other than that supplied by Mayberry) the filters were repacked in
their correct cartons at an estimated loss of $85 to the Company. Shortly thereafter
Cannon called Mayberry at his home and told him that he was being discharged for
the error he had committed.
The circumstances under which Mayberry was discharged leave me no alternative
but to infer that the substitution of packing cartons was but an excuse for Respondent
to rid itself of a known union sympathizer. Mispacking is the sort of production
error that is not unheard of in either Respondent's or any other plant. Indeed
Supervisor Cannon conceded on cross-examination that orders have been torn down
before, but because of errors in other departments, not his. Furthermore, it would
appear that this error was not Mayberry's in the first instance, and nothing in the
record would suggest that Respondent had investigated to find out who it was on
the previous shift who had set up the order incorrectly, thereby laying the ground-
work for Mayberry's failure to use proper judgment of rechecking it. Nor is there
in the record anything to suggest what consideration had been shown Mayberry for
the fact that he had transmitted the information which presumably caused Respond-
ent to learn of the error the first thing on the following morning.
On the contrary, Respondent's dominant theme in Mayberry's case is one of rigid
application of stereotype regulation. Mayberry made an error-the error cost the
Company $85-Mayberry had to go. Because I have observed among Respondent's
officials and supervisors an intelligence that would not normally subscribe to this sort
of personnel practice and because nothing in the record, apart from the discrimina-
tory discharges considered herein, would suggest that Respondent terminates mem-
bers of its work staff out of hand, I find and conclude that it did so here not for the
reasons alleged but because Brent Mayberry was seen soliciting a union membership.
As such action constitutes discrimination against him because of his union mem-
bership and activity, I find that Respondent has thereby violated Section 8(a) (3)
of the Act.
6. James Buchanan
James Buchanan was employed by the Company in October 1958. At the time
of his discharge and for 8 months previous he was a pleater operator-a pleater
being a machine which processes heavy paper tape for use in air filters. The paper
tape is first run through a heating oven and then into the machine which , as its name
implies, pleats it and bunches the tape for insertion into the can filter.
Buchanan, it will be recalled, was first threatened by Supervisor Wilkinson as he
was passing out paychecks. Wilkinson at that time stated, "I don't want to hear you
say any more about the Union. I will have to let you go if you say any more about
it." Under circumstances which I have previously found to constitute unlawful
24 The credited testimony of Mayberry . Employee Frank Robinson , the stockroom
clerk on the shift prior to Mayberry's, testified that he was familiar with the order but
did not state who had initially made it up Because I find Robinson to have involved
himself in contradictions which cast doubts upon his testimony I do not credit him. I do,
however, note his testimony that carton substitution was permitted in certain respects,
whereas Supervisor Cannon, who was responsible for Mayberry's discharge, testified that
substitutions were never permitted
614913-62-vol 132-69
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interference, restraint, and coercion, Supervisor Wilkinson restricted employees
Buchanan, Almond, and Greene in their movement about the plant (supra), Bu-
chanan being told never to leave his machine except at break time. Upon the fore-
going, therefore, it cannot be doubted that Respondent was not only aware of, but
indeed opposed to Buchanan's union membership and activity.
A week after the incidents recounted above, on the third shift of April 18, Bu-
chanan set up his machine to run a supply of pleated paper that would keep him
ahead of the line production. When he was sufficiently ahead he stopped the ma-
chine and went outside for a smoke. Wilkinson followed him and told him that he
had been running the machine with the wrong rollers-a condition that would result
in pleating the wrong sized pleats. As a result of this error 75 "cuts" were run off
and were of no use 25 Buchanan testified that his machine could produce two or
three thousand "cuts" per hour, hence, except for the value of the paper which was
of good quality, there appears to have been little time lost by this error.
Buchanan continued to work throughout the shift, keeping ahead of production.
When he had pleated enough for his own shift by 3:45 a.m. he set up the machine
for the operator on the next shift. At this time Wilkinson told him to punch out at
5 a.m., the usual quitting time being 5:30. Thereafter Buchanan went to the rest-
room, solicited a union membership from a fellow employee, Diddicks, in the
company of Mayberry, and was observed in the act by Mauney. Earlier in the
evening, Buchanan had taken several long breaks and had gone out on the front
steps for smokes; these being periods when he had gotten so far ahead of production
that it was necessary to shut his machine down to permit the line to "catch up." As
it approached 4:30 a.m. Buchanan, with nothing to do, was biding his time to clock
out and took several rides on the elevator to the upper floors. As he finally debarked
from the elevator and walked to the timeclock he met Supervisor Wilkinson who then
told him that they could not use him anymore. When asked why, Wilkinson told
him it was for leaving his job and for neglecting his work.26 At this point Buchanan
cursed Wilkinson and walked off. Thereafter, he returned and apologized for his
conduct but as he did so it would appear that in the heated conversation which again
followed he again cursed Wilkinson and left 27
It is my studied belief that restrictions placed upon Buchanan, and his fellows, and
Respondent's deviation from the normal treatment of an employee whose own work
rate is necessarily gauged by the rate of line production, are but a composite of
Respondent's successful attempt to eliminate Buchanan as it threatened it would
(supra) Accordingly, I deem the reasons supplied by Respondent and advanced at
the hearing, leaving his machine and negligence, to be but a pretext of the Respond-
ent's effort to rid itself of another union adherent. As a discharge in such context
constitutes discrimination for reasons of union membership and activities, I conclude
and find that Respondent has thereby violated Section 8-(a) (1) and (3) of the Act.
7. Hartwell C. Almond
Employee Almond, a painter who began with the Company in August 1959, was
the individual whose movements about the plant were restricted by Supervisor
Wilkinson on the third shift of April 13, conduct which I have found constitutes a
form of employee interference, restraint, and coercion proscribed by the statute.
As an aftermath of Wilkinson's and Supervisor Mauney's several orders to Almond
to remain in the paintroom, Almond specifically requested Wilkinson to give him an
explanation for the restriction and Wilkinson, after stating that "all painters were
going to have to stay in the paintroom when they weren't on break time," then told
Almond that "he was wise to what we were doing in trying to organize a union down-'
there and said that a bunch of us guys were going to lose our jobs if we didn't do
what we was told." In spite of this order Almond went out for a smoke again at
12:30; whereupon, according to Almond:
Mr. Wilkinson came out and said that he had told me to stay in the paintroom
and said there I was out there smoking. I told him there was no smoking per-
?;' A "cut" is the amount of pleated paper necessary to accommodate one filter element.
2' The foregoing findings are based upon the credited testimony of employee Buchanan.
In so finding I credit neither Wilkinson's, Mauney's, nor Smith's testimony respecting
the details of the discharge nor do I credit Foreman Ellis' testimony that Buchanan
admitted his work deficiencies in asking for his job back.
-' I specifically reject any inference that may be drawn from the questions asked of this
witness on cross-examination to the effect that he at any time drew a knife on Wilkinson
or anyone else, or that he even had a knife in his possession.
WIX CORPORATION 1077
milted in the paintroom and that was the only place I had to go to smoke, and
the line was still down at that time, and he told me to hit the clock.
I was fired.
I have no doubt that the restrictive rule imposed upon employee Almond was
motivated by antiunion considerations and not by a desire for efficiency or good
order. This I have already found to constitute unlawful employee interference,
restraint, and coercion. But to thus hold that such a restriction or rule was promul.
gated as a pretext for such motive is quite different from saying that Almond's dis-
charge for insubordination was a pretext for less worthy considerations, in view of
Almond's own conduct at that time. The rule, on its face, was a proper and reason-
able one and Supervisor Wilkinson's authority to impose it was, on its face, within
his scope of authority. I know of no rule of law that would justify an employee's
deliberate refusal to obey such a reasonable requirement (irrespective of its motiva-
tion) ordered by a duly constituted supervisor. Almond, it would seem, has confused
his rights as an employee to engage in concerted activity and to be free from employer
interference on the one hand, with his obligation to do what he is told to do in line
with the reasonable requirements of his occupation.
Almond's refusal to return to his workplace is, in my estimation, on an entirely
different footing from Buchanan's wandering, the discharge for which I viewed as a
pretext (supra). True, both employees disregarded the undue restrictions placed
upon them and both were ostensibly discharged for their action. But in Almond's
case, unlike Buchanan's, there was an attitude of deliberate defiance of an order, a
defiance of Wilkinson's threat to fire him if he did not obey, which he did not.
Buchanan, on the other hand, was not faced with such a categorical directive, did not
deliberately flout the directive he received, and was not ordered to comply under
penalty of discharge. His, as we have seen, was an instruction to stay at his machine,
an instruction he obviously misinterpreted, and was followed directly by the word that
he was fired.
Upon these distinctions I view Almond's attitude as damaging to his best interest.
Having deliberately refused to obey his supervisor and remain at his workplace I am
persuaded that his supervisor's basic reasons for telling him to remain there are
of no comfort to him. Indeed he appears to have nullified the ill-motivated effects
of the restrictions placed upon him, by, in effect, daring his immediate supervisor to
enforce a company regulation (however motivated) against him Upon this dis-
tinction and in view of this cavalier demonstration on his part, I find and conclude
that Almond was discharged not for engaging in union activities or in discrimination
for such reasons, but for outright insubordination 28 I shall recommend, therefore,
that so much of the complaint as relates to Almond's discharge be dismissed.
8. Robert Taylor
Robert Taylor had been employed by the Company as a cleanup man since October
1938. 'He joined the Union at the behest of employee Keith Greene on April 11.
The circumstances of this event bear considerable significance to Respondent's claim
that it had no knowledge of Taylor's membership. Greene gave Taylor an applica-
tion card at break time in the middle of the night, while both of them were outside
of the plant and in the rear of it. Taylor returned the signed card to Greene at a
later break and according to Taylor no one else was present. Two days later Taylor
and employee Greene engaged in a brief conversation concerning the Union. The
two of them stood on a raised platform area where Greene was performing his time-
keeping duties. Supervisor Wilkinson, who was standing below the platform 10
feet from the two employees, called to Taylor that a load of materials was ready
for him to carry on the elevator According to Taylor the plant machinery and
exhaust fans were running at this time and the public address system was turned on.
Several days thereafter Taylor was discharged. It is disputed in the record whether
Taylor was or was not sleeping on the job, the basis for his discharge.
From the foregoing it appears that the only basis upon which it could be estab-
lished that Respondent knew Taylor was a union member and had therefore dis-
charged him for reasons of such membership was the fact that Supervisor Wilkinson
saw, but did not overhear, Taylor in conversation with Greene, a known union
adherent. To find company knowledge under such circumstances would be tanta-
mount to building an inference , not upon another inference, but upon a bald sus-
picion; the suspicion that mere conversation with a union advocate establishes that
28 Five Transportation Company, 126 NLRB 154 ; Superior Derrick Corporation, 126
NLRB 188.
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the person talking to him is also a member, or is interested in union membership or
activity . Inferences so strained cease to be valid . Accordingly, I have no alterna-
tive but to conclude that upon a complete absence of evidence to the contrary
Respondent had no knowledge that Taylor had joined the Union 29 Accordingly,
because the basic element of a discriminatory discharge is missing from General
Counsel 's case, I find it unnecessary to resolve the conflicting evidence as to why
Taylor was discharged on April • 14. Suffice it to say that inasmuch as Respondent
has not been shown to have been aware of his union sentiments , it cannot be said
that it discharged him for such sentiments . Whatever , therefore , Taylor was dis-
charged for it was a personnel action within its prerogative so far as the proscriptions
of the Act are concerned . I shall therefore recommend that so much of the com-
plaint as relates to Taylor's discharge be dismissed3°
9. Ray H. Jackson
Employee Ray Jackson began with the Company in October 1959, and at the time
of his discharge on May 4, 1960, operated a perforating machine. Jackson joined the
Union on April 11 or 12, and was instrumental thereafter in procuring the member-
ship of a number of other employees . On April 18, Jackson met a fellow employee,
Doss, in the men 's room and obtained his signature on a union application. In the
process of this activity Foreman Welsh came into the room but made no comment 31
Later in the day Foreman Ellis approached Jackson and told him that he had heard
something about him talking Union and trying to sign somebody up, and that "it
is not appreciated." 32 On the basis of the foregoing credited testimony, it is clear
that Respondent was aware that Jackson was active in the Union's behalf.
On May 4, Jackson became involved in an incident that resulted in his discharge.
He clocked in at 2:15 p.m., and immediately went to his workplace, picked up the
chair that he used at work, and took it to the carpenter shop for repair. This chair,
according to Jackson , was of a particular height to accommodate a spine injury from
which he suffered and which bothered him when he was not in the proper sitting
position . 33 By Jackson 's estimate he was in the carpenter shop for a total of 35
minutes, an estimate confirmed.by employee Miller who testified that Jackson was
not at his workplace by 2:45 p.m., nor was he present when Miller was setting up
Jackson 's machine immediately thereafter. Jackson's visit to the carpenter shop was
confirmed further by the carpenter himself, employee Seaton Wells, who testified
credibly that Jackson was there from 45 minutes to an hour and appears to have
done nothing but wait around for the job to be completed. As he left Wells' shop,
Jackson thanked him and said, "I'd better get back, they are liable to fire me," a
statement which Jackson concedes he made.
True to his fear Jackson returned to his workplace to find himself the subject of
an extensive search . After considerable conversation and explanation between
Jackson and Supervisors Ellis and Cable, Ellis told Cable that "this man has got
to be replaced." Whereupon , Cable took Jackson to the personnel office and
processed his discharge , the reason being stated as "Leaving his job."
Jackson 's prominence in or activity in behalf of the Union affords him no special
prerogatives in the performance of his regular duties 34 Accordingly , if he chose to
wander away from his work for a period of a half hour or more without permission
or notice , he is in no position to defend himself from punishment for such conduct
by insisting that his discharge was otherwise motivated . Nor was this prolonged
visit to the carpenter shop Jackson 's first experience with unauthorized roaming.
Thus by his own account of how Cecil Miller , a straw boss, followed him , we have
the distinct impression that Jackson had had previous difficulties:
Well not everybody is rough; just one particular man walks around finding out
what people are doing , and he goes and reports them . And, in one particular
-United States Air Conditioning Corporation , 128 NLRB 117.
SO In any event , Taylor's discharge , allegedly for sleeping, was not part of a group
action whereby discrimination to others in a group could be imputed as to Taylor.
Cf Arnoldware, Inc, 129 NLRB 228; Englewood Lumber Company, 130 NLRB 394.
31 The credited testimony of Jackson Although I credit him generally I do not credit
Welsh's denial of knowledge of this incident.
sz I do not credit Ellis ' denial of this conversation.
33I do not deem it significant that the Company 's records contain no reference to this
physical defect.
-%NL.RB v . Brady Aviation Corporation , 224 F 2d 23 , 25 (C.A. 5 )_;_N.L.R.B. v.
Marion G . Denton, et al, d/b /a Marden Mfg Co, 217 F 2d 507, 571 ( CA. 5).
WIX CORPORATION 1079
instance, if you will ask Mr. Cable, he will let you know that Cecil Miller
followed me up to the men's room and two or three other places and went down
and reported that I was not on my job, and when I went back and answered
to Otis Cable, and explained to him that I was helping out one of the other
foremen upstairs, trying to find out something about metal, and why I was gone
for the time I was gone, it was all right then, there was no reprimand. Otis
Cable told me not to help any other foremen from there on; it was not my job
to do that; but, still and all, he didn't say nothing more about it; he just let me
go back to my job and that was the end of it; but if this man don't follow you
around and then run back and tell somebody about it, all the time, nobody
would have missed me for five minutes.
Under the circumstances attested to by Jackson himself and detailed above, I
conclude and find that he was discharged for leaving his work, the reason assigned.
Accordingly, I will recommend that so much of the complaint as relates to Ray
Jackson be dismissed.
10. Mable Cates
Employee Mable Cates began with the Company in October 1959 and when
terminated on May 4, 1960, was a double seamer operator. She joined the Union
but took no interest in it and, by her own admission, knew little of its activity about
the plant.
In early May it was decided that the employee complement in the P. C. packing
department was to be reduced from 15 to 10. Some employees were selected for
transfer to other departments, others for layoff. Mable Cates was among the
latter and she was specifically so selected because of her inability to get along
with her fellow employees 35 Upon her selection for layoff Mrs. Cates protested
most vigorously to anyone, apparently, who would listen, including Industrial Rela-
tions Director Smith, whose testimony I do not otherwise credit, and Foreman Fry.
She insisted that she was being discharged because the Company thought she was
connected with the Union. She underlined her protests by stating that she would.
"sue somebody" for spreading rumors that she was being fired because of the
Union.as
To support Respondent's contention that Mrs. Cates could not get along with
people and that she was selected for layoff for this reason there is her own reference
to differences she had had with employees, including Frances Merideth, Mozelle
Huffstetler, and Emma Freeman. In addition to these allusions to verbal unrest,
employees Crisp, Merideth, and Hovis credibly attested to the fact that Mrs. Cates
had frequent arguments with them and with others, and that she frequently un-
nerved employee Hovis to the point of tears.
A review of the testimony upon which the foregoing findings are based makes it
abundantly clear that Mrs. Cates was a troublemaker whose departure from the
plant was a source of satisfaction to those with whom and for whom she worked.
As there is little if anything in the record to suggest that she was favorably dis-
posed to the Union, little less actively working in its behalf, I am not disposed to
view the signing of a union card in the privacy of her home as a curtailment of
Respondent's right to terminate her for her inability to get along with the employees.
Accordingly, I shall recommend that so much of the complaint as suggests that
Mable Cates was terminated for union membership, interest, or activity be dismissed.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section IV above, occurring in con-
nection with their business operations 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.
VI. THE REMEDY
Since it has been found that Respondent, by discharging certain named employees,
discriminated against them in violation of Section 8(a) (3) of the Act and has other-
wise interfered with, restrained, and coerced its employees in violation of Section
ae The credited testimony of Foreman Fry.
111 do not credit Mrs. Cates' testimony. Her equivocation concerning her union
membership, her knowledge of the Union's activities, and her stated objection to alleged
rumors about her union membership persuade me of her unreliability , generally, as a
witness.
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8 (a) (1) of the Act, I shall recommend that Respondent cease and desist therefrom
and from infringing in any, other manner upon the rights of employees guaranteed
in Section 7 of the Act.37 I shall recommend that the Respondent offer to the afore-
mentioned employees immediate and full reinstatement to their former or substan-
tially equivalent positions 38 without prejudice to their seniority or other rights and
privileges.
During the course of the hearing the Respondent maintained that one of the em-
ployees involved in these proceedings and whose reinstatement I am recommending
would not be entitled to reinstatement because evidence which Respondent intro-
duced would suggest that the employee, and others, had purloined cigarettes from
a vending machine in Respondent's plant, Respondent repeatedly urged on the record
that this conduct was not in any sense being urged in defense of the discrimination
alleged, but only for purposes of assessing credibility and remedy.
Nothing in the record would indicate that this matter was ever reported to the
local authorities or became the subject of civil or criminal action in any court of the
State of North Carolina or the city of Gastonia. I am, therefore, not disposed to
make any evaluation of this conduct based upon the quantum of proof applicable
here to the prevention of unfair labor practices when it has not already been made
in a more appropriate tribunal under more exacting standards of proof. In a word,
I do not conceive the Board's remedial processes to be a substitute for purely local
civil and criminal relief.39
I shall also recommend that Respondent make whole each of the aforementioned
employees for any loss of earnings they may have suffered because of the discrimina-
tion against them with backpay computed in the customary manner.40 I shall fur-
ther recommend that the Board order Respondent to preserve and make available
to the Board, upon request, payroll and other records to facilitate the checking of
the amount of backpay due and the rights of employment.
Since it has been found that the Respondent has committed certain unfair labor
practices it will be recommended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The operations of Respondent occur in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By discriminating in regard to the tenure of employment of Michael Keith
Greene, James Buchanan, Carl Hoyle, Shirley Hoyle, Charles Ross, and Brent May-
berry, Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (3) of the Act.
4. By the foregoing conduct, and by threatening its employees with loss of em-
ployment if they joined or discussed the Union, by threatening that it would close
its plant in preference to dealing with the Union, by interrogating one of its em-
ployees concerning the union membership and activities of its other employees, and
by asking said employee to report any such information to it, Respondent has inter-
fered with, restrained, and coerced its employees in the exercise of their rights
guaranteed them by Section 7 of the Act and thereby has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)( I) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
6. Respondent did not violate Section 8(a)(3) or (1) of the Act, by .the discharge
of Hartwell C. Almond, Robert Taylor, Ray H. Jackson, and Mable Cates.
7. Respondent did not violate Section 8(a) (1) by any conduct alleged in the com-
plaint as attributable to Foreman Hershel Welsh.
[Recommendations omitted from publication.]
sr N L R B. v. Express Publishing Company, 312 U.S. 426, 437.
88 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
° Cf. American Creosoting Corporation, et al ., 130 NLRB 150.
&O F. W. Woolworth Company, 90 NLRB 289.