Wix Corp.

National Labor Relations Board - Board Decisions

Jan 29, 1963

140 N.L.R.B. 924 (N.L.R.B. 1963)

924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the Intervenor signed the new bargaining agreement which is ef-
fective for 2 years until May 14, 1964. It was not until approximately
7 months after the cancellation of the 1960 contract and 5 months after
the signing of the new agreement that the Petitioner indicated its
interest in representing the employees involved.
I have recited the facts in detail because they show the complete
bona fides of the Employer and the Intervenor in terminating the old
contract and negotiating a new one, and the scrupulous care exercised
by the Employer to respect the right of the employees to change their
bargaining representative, if they so desired, before a new contract
was negotiated and signed. There is not the slightest hint in this
record that the contracting parties intended to forestall the filing of a
representation petition by a rival union. The employees also had
ample time, almost 2 months from the time of the cancellation of the
old contract to the signing of the new, to indicate dissatisfaction with
the representative status of the Intervenor. They did not do so. I
agree generally with the premature extension rule. I think it is a
good rule. But like all general rules its rigid application sometimes
does not work out to justice or good labor relations. On at least two
previous occasions the Board made exceptions to the premature exten-
sion rule.10 I would, because of the special circumstances of this case,
make another exception. I am reinforced in this conclusion by the
fact that under the premature extension rule as it existed at the time
the present petition was filed, the petition would have been dismissed
as untimely and the 1962 contract held a bar."
For all the foregoing reasons I would hold that the 1962 contract
is a bar to the present petition and, instead of directing an election
based thereon, would dismiss it.
10 Foremost Appliance Corp, 128 NLRB 1033; Sefton Fzbre Can Company, 109
NLRB 360.
"Pacific Coast Association of Pulp and Paper Manufactures , 121 NLRB 990
Wix Corporation and International Union, United Automobile,
Aircraft and Agricultural Implement Workers of America,
UAW, AFL-CIO. Cases Nos. 11-CA-1841 and 11-CA-1889.
January ^?9, 1963
DECISION AND ORDER
On September 26, 1962, Trial Examiner Benjamin B . Lipton 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 take certain affirmative action, as set forth in the attached Interme-
diate Report. The Trial Examiner also found that the Respondent
140 NLRB No. 87.
WIX CORPORATION 925
had not engaged in certain other unfair labor practices and recom-
mended that the complaint be dismissed with respect to such allega-
tions. Thereafter the Respondent, tin Charging Party, and the
General Counsel filed exceptions to the Intermediate Report and
supporting briefs.
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 [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed.' The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report and the entire record in the case, including the exceptions
and briefs, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner as modified herein?
Interest at the rate of 6 percent per annum shall be added to the
baclcpay to be computed in the manner set forth in Isis Plnnibing Q
Heating Co., 138 NLRB 716 . 1
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.
1 The Respondent's contention that the Trial Examiner was interested only in the facts
which tended to "convict" it of violations of the law, accorded undue protection to union
witnesses, and improperly refused to rely upon certain tape recordings in evidence, we
find without merit. A consideration of the entire record shows no basis whatever for a
finding of bias
a We agree with the Trial Examiner that Smith, about September 30, held out Daniels'
"complaint" as a bar to consideration of reemployment. We find that this was an inter-
ference with employee rights guaranteed in Section 7 of the Act, hence a violation of
Section 8(a) (1). It appears from the record as a whole that Daniels "signed some
papers" for a union organizer before this date, to which papers Smith referred, rather
than a complaint "to the Board" concerning his discharge, as found by the Trial
Examiner Since issuance of the Intermediate Report, the Court of Appeals for the
Fourth Circuit (NLRB v Wien Corporation, 309 F 2d 826) has in part granted the
Board's petition for enforcement of the earlier case. We affirm the Trial Examiner's
finding of an 8(a) (1) violation based upon attempts to induce unlawfully discharged
employees to waive their rights to reinstatement, but shall limit our affirmance to such
conduct directed to Carl and Shirley Hoyle. We do not pass upon such employer induce-
ments directed to other employees
The request of the Charging Party for oral argument is hereby denied ina,mueh as the
issues are adequately presented in the record and in the briefs.
s For the reasons set forth in the dissenting opinion in the Isis case, Member Rodgers
would not award interest on baclcpay.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
A hearing was held before Trial Examiner Benjamin B. Lipton in Gastonia,
North Carolina, on June 12 through 15, 1962, involving allegations by the General
Counsel that Respondent committed certain violations of Section 8(a)(1) and (3) of
the Act.' All parties were represented and participated in the hearing. Full oppor-
' The original charge in Case No. 11-CA-1841 was filed on November 8, 1961, and in
Case No 11-CA-1889 on January 31, 1962. The consolidated complaint was issued on
April 27, 1962.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tunity was afforded to argue orally on the record , and briefs were expressly solicited
by the Trial Examiner. No oral argument was made, nor briefs filed
Upon the entire record in the cases and from my observation of the witnesses,2 I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, at its plant and principal office in Gastonia, North Carolina, is engaged
in the manufacture of oil and air filters for internal combustion engines. During
the year preceding issuance of the complaint, it sold and shipped finished products
valued in excess of $50,000 directly in interstate commerce. Accordingly, I find
that Respondent is engaged in commerce within the meaning of the Act.3
If. THE LABOR ORGANIZATION INVOLVED
International Union , United Automobile , Aircraft and Agricultural Implement
Workers of America, UAW, AFL-CIO, herein called the Union , is a labor organ-
ization within the meaning of the Act
III. THE UNFAIR LABOR PRACTICES
A. Official notice of prior case
On August 17, 1961, the Board handed down its Decision and Order in a prior
unfair labor practice proceeding against the instant Respondent.4 That case involved
the same plant, same parties, similar alleged violations, and many of the same
witnesses on both sides. As requested by the General Counsel, I have taken official
notice of the Board's decision in the earlier case, as to which I am bound, and of the
record in that proceeding.5 Respondent was found by the Board to have committed
violations of Section 8(a) (1), calculated to discourage the employees' union activities,
by threatening them with discharge and reprisal, coercively interrogating them,
requesting them to engage in surveillance of their fellow employees, threatening to
close the plant, and imposing undue restriction of their movements about the plant.
In addition, Respondent was found to have violated Section 8(a)(3) in discrimina-
torily discharging Carl and Shirley Hoyle, Charles E. Ross, James Buchanan,
Hartwell C. Almond, Brent Mayberry, and Michael K. Greene, certain of whom
are again involved in the present case. The earlier findings of .the Board are properly
considered evidence relevant in the present case with respect to Respondent's union
animus, discriminatory motivation, and circumstances bearing upon Respondent's
defenses, and generally these findings form the setting against which Respondent's
further violations alleged herein must be evaluated .6
B. Allegations in present case
The alleged independent Section 8(a) (1) violations consist of coercive interroga-
tions of employees; threats of a discharge and other reprisals; promises of benefit;
conditioning reemployment of an employee upon withdrawal of unfair labor practice
charges, and offering to and paying employees advances on backpay ordered by the
Boaid as an inducement to release Repondent from its obligation to reinstate them
pursuant to the Board's order in the prior case. Violations of Section 8(a) (3) are
alleged in the discharge of Carl Hoyle, Charles E. Ross, John W. Bridges, Julius P
Caldwell, Kenneth Daniels, Robert W. Eng, and Jimmie Jenkins, and also in the
transfer of Jimmie Jenkins, O. Winfred Sutton, Johnnie Truett, and Bill Schronce
from their regular work to less desirable and more difficult work. Respondent
denies commission of any of the alleged violations.
'All credibility findings herein are based , at least in part, on the demeanor of the
witnesses at the hearing
s Wix Corporation, 132 NLRB 10'59.
4 Ibid
5 Plainly there can be no merit in Respondent's argument that the Board's decision i .
not "authority on anything at this point" because the decision Is being contested in the
court of appeals.
9 E g., N.L R B v. Reed & Prince Manufacturing Company, 205 F. 2d 131, 139 (C A 1),
cert. denied 346 U.S. 887 ; B. V. Prentice Machine Works, Inc., 120 NLRB 1691.
WIX CORPORATION 927
C. Supervisors
It was admitted, and I find, that the following individuals are supervisors within
the meaning of the Act: Robert H. Smith (personnel and industrial relations director);
Charles E. Loggins (assistant personnel director); Henry Scarborough (production
superintendent); Charles Wilkinson (supervisor); Herschel L. Welsh (supervisor); 7
Sam Holland (supervisor); Otis Cable (supervisor); James Rush (foreman); Jenks
Dillinger (foreman); Paul Dellinger (supervisor); Gene Johnson (supervisor);
Robert D. Friday (supervisor); Wade A. Robinson (foreman); Mike Jones (job
analyst and plant protection) .8
D. The discriminations; interference, restraint, and coercion
1. Bill Schronce
Schronce became active in the Union after Respondent had reinstated certain of
the employees in September 1961,9 following the Board's Decision and Order. He
had union authorization cards signed by other employees and began wearing union
buttons on his clothing while on the job. The day after he put on the union buttons,
his supervisor, Otis Cable, took him off the particular punchpress on which he had
been working productively for over a year and assigned him to another press. He
protested to Cable that he was being "persecuted" for wearing a union button and
that he would not quit if that was what they had in mind. Cable indicated that
the transfer was ordered by Foreman James Rush. The next morning, Schronce
asked Rush why he was taken off the job. Rush said they had to train some more
people and "swap quite a few around." Schronce stated that he was not going to
quit, and returned to his work. About noon that day, Rush sent for Schronce.
He said the reason for the change was that he thought Schronce was unhappy, that his
attitude lately had not been too good; but he demed, when asked, that he was talking
about the union buttons. Schronce was then sent back to his regular press from
which he had been removed for 1 day.
Sometime in November, Schronce complained to Foreman Rush that since he
had put on the union buttons he had not been getting overtime, Saturday work, nor
the "good dies" on which he could make enough money (under the incentive pay
system in effect). Schronce said, "Mr. Rush, I'm planning on taking this union
button off. When I do, I would like to be treated as the rest of the employees around
here." Rush said, ". . taking off the union button won't clear up what you have
done You have made a lot of enemies around here . . The only way I can
tell you to get off the hook is to sign a statement saying that you . no longer
have any part to do with the union; you are through with it; you have made a mistake
to ever mess with it; and sign your name to it and tack it on the bulletin board "
Schronce replied that he would not do that. Rush suggested that Schronce go to
see Personnel Director Robert H. Smith, which he did.
Smith said he heard that Schronce had a conversation with Rush and that he was
trying to get back in good with the Company. Schronce answered that he would
like to get treated a little better and he was going to take off the union badge
Smith said that he wanted to straighten him up, that he was a good employee, but that
he had "got mixed up with a rotten bunch." Smith then spoke critically of "these
guys hired back," and referring to Carl Hoyle as the leader, said that Hoyle had been
given a job (as an ex-convict) and "he turned around and [did] the company like
that " Smith told Schronce that if he were discharged for taking part in union
activities, he would never be able to get a job in that county. He said it would be a
good idea for Schronce to sign the statement which Rush had described. Schronce,
after voicing his fears that he would make a lot of enemies by signing such a state-
ment, said he would let Smith know.
Thereafter, Schronce had further discussions with Rush. On one occasion he told
Rush he was concerned about losing his job, had a family to support, and did not
S The complaint states and the answer admits this supervisor's name to be Raymond
Welch and the name was so stated in the testimony of employee Julius Caldwell This
foreman testified, however, giving the name as shown in the text.
8 Certain additional supervisors alleged in the complaint are not listed as they were not
materially involved in the issues litigated in the present case. There are some variations
in spelling from the prior case, e .g., Hershal Welsh and Jenks Dellenger . The present
record is followed.
9 All dates are in 1961 where not otherwise specified.
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
see anything for which he could be fired. Rush said there were "always things that
could be tied up." He added that there would still be a "lot of them there that wore
union buttons." Concerning the employees ordered reinstated, Rush said "that that
could be drug through the courts for a long time," and that "this other trial could
have been a lot longer, but they didn't appeal it zany more." At another time, when
certain extra work was being made available to employees during the Christmas
holidays, Schronce asked Supervisor Cable to be considered. Rush called Schronce
in and, with Cable standing by, said, "I figure you are probably back in good with
the company. If you ever again wear a union badge, I'll blackball you from this
company if it's the last thing I ever do; and don't think I can 't do it." Schronce
replied, "Well, I'm not going to wear a union button any more." Since then he has
not worn a union button and has been "getting work pretty good now." 10 Respondent
offered the stipulation, which was agreed, that in October 1961, Schronce received
two hourly raises of 3 cents each.
Rush testified that the reason he took Schronce off his regular press for 1 day was
that he thought Schronce was going to quit, an impression which he derived from
Schronce's previous complaints that he could not make a living. Another ground
advanced in Respondent's testimony (although the reasoning is obscure) was the
charge against Schronce (which he denied) that he made an hour's production by
running his press for 30 minutes and then sat idle and unproductive for the remaining
30 minutes. It was also testified on Respondent's behalf that Schronce protested to
management that he was being kidded and harassed by other employees on account
of his prounion activity and for this reason he himself proposed discarding his union
button and signing a statement renouncing the Union.
With respect to the transfer of Schronce, withdrawn after 1 day, Respondent's
reasons are rejected as implausible and incredible. I am of the opinion, in particular
view of the timing after Schronce began wearing union buttons and the coercive
statements made to him by Rush and Smith, that the transfer was a discriminatoiy
tactic intended to cause Schronce to abandon his union activity . Section 8(a)(3)
was thereby violated, as alleged No finding is made that Schronce was discriminato-
rily deprived of overtime, Saturday work, and "good dies," as I find the testimony too
vague and imprecise to establish an actual detriment suffered by Schronce. In the
various statements made to Schronce by Rush and Smith, as above described, that
he post on the bulletin board his disavowal of the Union; that he would never be able
to find a job in the county; that "always things could be tied up"; that the reinstate-
ment order "could be drug through the courts"; and that he would be "blackballed" if
he wore a union badge again-I find that Respondent engaged in interference, re-
straint, and coercion of employees in violation of Section 8(a) (1).
2. Johnnie Truett
Truett, in Respondent's employ since October 1959, had been holding the regular
job of spot welder for some 5 or 6 months 11 when Carl Hoyle was reinstated on
September 11, 1961. After the reinstatement, Truett engaged in union activities
and commenced wearing a union button. Late in September or early October,
Truett was transferred by Supervisor Dellinger from spot welding to the dial tables,
clamping parts together . 12 Dellinger explained to Truett that some people around
there were dissatified and he thought Truett was one of them. A "couple of weeks"
later, Truett asked Rush why he was transferred, and Rush said there could be sev-
eral reasons. Truett told Rush he thought it was because he was for the Union and
wearing a button. Rush replied that if it was left to him, anybody wearing a union
button would not get any favors. Truett complained that he was getting the worse
end of the "moving around." Rush retorted that Truett was not getting the worst-
"there's someone out the door." 13 Rush told him that if he would like to change his
mind about the Union, something might be worked out.14 He also said he was
raised to be against the union, and that was his job. Thereafter, as they told him
they "might work something out," Truett took off the union button, and asked
Dellinger to tell Rush that he "would like to come in regular, you know, start all
over." A week later, Truett went to a union meeting. The next day Foreman Rush
10 The foregoing is based upon the credible testimony of Schronce . Insofar as their
testimony conflicts with that of Schronce, I do not credit Cable, Rush, and Smith
11 Supervisor Paul Dellinger stated it was 8 to 10 months.
12 At the time of the hearing, Truett was working as a "spare hand" He had con-
tinued at the dial tables until early 1962.
11 Rush testified he could have made this statement
14 Rush testified he could have asked Truett "if be had changed his mind about
anything "
WIX CORPORATION 929
said, "Johnnie, I hear you went to a meeting last night." Truett replied, "That's
right." Rush inquired if there were "very many there," what they spoke about, and
if anything was said about when the Union would call for an election. Truett
answered in general terms. Rush asked whether Truett had changed his mind about
the Union. Truett said no.15
On the above evidence, I find that Respondent violated Section 8(a)(3) in the
transfer of Truett from his regular job of spot welder, and that it also violated Section
8(a) (1) in Rush's extensive interrogation of Truett, his statement that anyone wear-
ing a union button would not get any favors, his implied threat "there's someone out
the door," and his implied promise of benefit that something might be worked out.
3. Thurman Tipton
Tipton worked for Respondent from November 1956 until June 1961. He credibly
testified that in July or August 1961, he telephoned Supervisor Sam Holland about
obtaining reemployment. Holland said he would like to put him back to work but
had no authority, and referred him to Foreman Rush. He then called Rush who
said he did not know what the chances were at that time, that the Union was trying
to come in, and "if they could get rid of John Bridges and Jimmie Jenkins, who were
the ringleaders in the metal department, there might be a possibility of [Tipton] going
back to work."
Respondent appears to rely upon a defense that sole or final hiring authority resided
in the personnel office and that Tipton was aware of this fact. The argument would
scarcely serve to justify, or exonerate Respondent from, the coercive statements made.
It is not unusual, as the evidence shows, that foremen are called by persons interested
in obtaining employment; they are in a position at least to offer advice and may in-
deed, so far as appears, have some influence in making recommendations for hiring.
As an applicant for employment, Tipton was within the compass of "employee"
under the Act, which includes not only existing employees of an employer but also, in
a generic sense, members of the working class.16 In the circumstances present, Tipton
could properly look to Rush as an agent of Respondent. Accordingly, I find that
Rush's telephonic remarks to Tipton constituted further violations of Section 8(a) (1).
4. John W. Bridges
Bridges worked for Respondent from October 1956 until September 25, 1961, when
he was terminated assertedly for being absent without notifying Respondent. Bridges'
union activity commenced about the time Carl Hoyle was first discharged in April
1960. He spoke to employees at his home and elsewhere soliciting union authoriza-
tion cards. Thereafter, his activity apparently lapsed but was resumed when Hoyle
was reinstated in September 1961, at which time Bridges began wearing at the plant
union buttons (as many as 10) on different parts of his work clothes. Regarding
his union buttons, his supervisor, Paul Dellinger, told him that he had a good job
and if he wanted to keep it he would take these things off.
Bridges was absent because of a "strep throat" for a continuous period of 13 days
in June and early July 1961 and thereafter his timecard shows that he was off from
work on July 11, 15 (2 hours), 24, 25, 28, August 25 (about 4 hours), and Septem-
ber 22 (his last day) On July 31, Bridges received a warning slip, signed by Super-
visor Dellinger,17 which read, "Employee has had verbal warning about absences,
and his attitude toward jobs other than his regular job. If attendance and attitude
isn't improved. Dismissal will result." Respondent had a written rule which stated
as a reason for discharge:
Absence from duty without notice to and permission of your Supervisor, ex-
cept in cases of sickness or causes beyond your control preventing the giving of
notice.18
"Based on the credited testimony of Truett. Rush and Dellinger are not credited ex-
cept as to their admissions and testimony corroborating Truett. I note, for example, that
Dellinger on direct examination stated the only reason Truett was taken off the spot-
welder was because more production was needed, but on cross-examination apparently
contradicted himself by saying that Truett was a "pretty good" spotwelder and he made
production
16 See Phelps Dodge Corp. v N L.R B , 313 U S. 177, 191-192; John Hancock Mutual
Life Insurance Company v. N L.R .B., 191 F . 2d 483, 485 (C.A.D C )
17 It was countersigned for Personnel Director Smith by Charles E Loggins , then em-
ployment supervisor.
1e Dellinger testified that Respondent had no rule regarding chronic absenteeism but
that it was taken into account.
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bridges was aware of the notice requirement and testified credibly that he under-
took in each instance by various means to notify Respondent of his absence. As
he had no telephone at home, his wife or Bridges himself at times would call the
personnel office from a "next door" neighbor, or word would be sent with Bill
Schronce, with whom he had been riding to work. Although Respondent kept spe-
cific records, there was no evidence to refute Bridges' testimony that he had satis-
factorily notified or cleared with Respondent regarding his absences prior to Septem-
ber 22 On Friday, September 22, Bridges was ill and asked Schronce, as before, to
carry the message to Respondent. On reporting to work that morning, Schronce
notified Dellinger of Bridges' absence. When Bridges came in on Monday, Septem-
ber 25, Dellinger told him the law of averages had caught up with him, to see Rush
and his money would be waiting. Rush in turn referred him to the personnel office
to receive his final pay. At the personnel office, he was informed that his discharge
was for "absence without notification" and he was given a discharge slip to that
effect.
Dellinger testified he received "some sort of word" from Schronce concerning
Bridges on the morning of September 22 and that he was not satisfied with this
notice from Schronce because the reason was not indicated. No effort was made
to ascertain the reason from Schronce. When Bridges reported in after the absence,
he was afforded no opportunity for explanation-his discharge was a fait accompli.ii
Having on record the prior warning slip (although of vague content I find), Re-
spondent moved to sever Bridges, an employee of 5 years, with impressive speed and
decisiveness. Its written rule, supra, taking into account sickness or causes beyond
the control of the employee, was apparently ignored. Respondent, it appears, was
concerned only with the alleged discrepancy in Schronce's notification and was not
interested in the actual reason for Bridges' absence or in his blamelessness.20
Considering, inter alia, the timing of Bridges' discharge after he donned the union
buttons in September, Dellinger's threat to Bridges to take the buttons off, and Rush's
remark to Tipton of Respondent's desire to rid itself of Bridges as a ringleader, I
find Respondent's assigned ground for Bridges' termination a transparent pretext and
conclude, on all the evidence, that he was discriminatorily discharged on account of
his union activities, in violation of Section 8(a) (3), as alleged. In addition, Section
8(a) (1) was independently violated by Dellenger's threat to Bridges regarding his
wearing of the union buttons.21
5. Jimmie Jenkins
Jenkins was laid off on October 16, 1961, after working for Respondent for about
5 years. The General Counsel alleges that he was discriminatorily transferred to a
job from which he was terminated, each action constituting a violation of Section
8(a) (3).
After Respondent's reinstatement of certain employees under the Board's order in
the prior case, Jenkins became active in the union campaign. He had union cards
signed by employees and wore numerous union buttons on his work clothes. On
seeing the union buttons, his supervisor, Sam Holland, told him he was "kind of
messing up." Holland also saw Jenkins try to sign up a new employee in the de-
partment. Jenkins later noticed the union card he gave to this employee in Holland's
shirt pocket.
Jenkins was regularly employed as a spotwelder for some 4 or 5 years. At times
when he was caught up with the work on the welder, he would be put on other jobs in
the department. Beginning about May 1961, he asked Holland several times to be
transferred from the spotwelder because it bothered his legs. Holland took the
matter up with Foreman Rush and Production Superintendent Scarborough. Scar-
borough, after talking to Jenkins, asked Holland, if he could do it, to take Jenkins
off the welder "to help the boy's legs." Holland then took Jenkins off the welder and
assigned him on a temporary basis to various other tasks and equipment in the de-
partment. He was not told, and was not aware, that he was being tried out on those
jobs for purposes of transfer. Jenkins was able to meet the production standard on
certain of these temporary jobs but not on others. Thereafter, Jenkins asked to be
10 Bridges had inquired of Schronce and was told by him that Respondent was notified
of the absence This testimony is indicative of the concern and diligence of Bridges in
complying with Respondent's rules.
30 Notice has been taken of the findings in the prior case (132 NLRB 1059, 1070-1071)
regarding the unlawful discharge of Carl Hoyle on a pretext ground of absenteeioni and
the discussion therein relating to Respondent's disparate application of its rules and
policies on absences.
n Where in conflict with that of Bridges and Schronce, the testimony of Dellinger,
Rush, and Smith is not given credence
WIX CORPORATION 931
put back and allowed to stay on the spotwelder. He was thereupon returned to the
welder and made no complaint about his legs.
In September, several days after he started wearing union buttons, Jenkins was
permanently transferred to the slitter, in a different department, under Supervisor
Otis Cable 22 No prior discussion was had with Jenkins as to whether he wanted the
slitter job, and he testified that in fact he did not seek or approve the transfer From
the outset, Jenkins complained that the work on the slitter caused his back to hurt.
The slitter machine cuts metal sheets into various preset sizes. On one side of
the machine an employee operates the controls and feeds the metal through for
cutting. It was Jenkins' function to take the metal cuts (as large as 15 by 12 inches)
from a table on the other side of the machine and stack them on skids resting on a
lower table behind him.23 Although it was in Jenkins' discretion how much of the
metal to pick up at one time (varying from about 10 to 20 pounds), he was on an
incentive basis and expected to meet a fixed production standard. Jenkins indicated
that he had to bend at about a 90° angle in the stacking operation, which gave rise
to his back ailment. He asked Cable repeatedly to be taken off the job or to have
the slitter table raised. His request was considered by Cable and Foreman Rush.
Cable testified that they decided not to raise the table, as the plant was going to be
moved in a "couple of months" and they did not know if the slitter would be moved.
However, no such explanation was given to Jenkins. In fact the slitter was not
moved, and subsequently the table was raised 24 around Christmastime, after Jenkins
had left.
On October 2, Jenkins went to the company nurse and, upon her referral, visited
a Dr Roberts about his back ailment.25 The next day, Jenkins came to work and
was told by Supervisor Cable to go on the same job, the slitter. He worked for only
about 2i/2 hours and then was allowed to go home because his back hurt. On about
Friday, October 6, Jenkins spoke on the telephone to Smith in the personnel office.
Smith told him they had not had a chance to find something else for him to do, just
to take a week off. Jenkins said that would be fine because his back was stiff On
October 16, when he reported back to work, he was again assigned to the slitter
He told Rush he would "rather not do it," that he was unable to work on the slitter
all day because his back would get stiff after 2 or 3 hours, and asked to be trans-
ferred to another job Rush said he had no work for Jenkins other than the slitter
Jenkins indicated that he would prefer to be laid off (rather than get fired, as he
testified) so that he could collect unemployment insurance. Rush replied that he was
not going to do him any favors, that he had done him more favors than anyone else
in there, and that he would probably have to leave the State to find a job. Rush then
referred Jenkins to Personnel Director Smith to see if he had anything for him to do
Smith, after taking time to talk to Rush, told Jenkins the slitter was the only thing.
Smith commented in effect that Jenkins would either have to be operated on to have
his back fixed or be laid off Jenkins said that he did not think he ought to have
on operation He was laid off.
Smith testified that Jenkins was laid off for not being able to do his job He stated
that he just could not locate another job for him, that almost any job in the plant
would be hard for a man with a bad back. Rush testified he knew no reason why
the slitter job should have been especially hard on a man's back. Significantly, an-
220n the slitter job, Jenkins replaced Robert W Eng (an alleged discriminates infra)
who was discharged on September 18, 1961
23 Supervisor Cable testified that the table attached to the machine was 4 foot h'¢'t
and the lower table was 15 or 18 inches high. A photograph was introduced by Re-
enondent purportedly to depict the physical layout of Jenkins' work station at the
slitter Cable identified the photograph as representing the identical scene which ex.
isted when Jenkins was there However, it was later developed, through Foreman Rush,
that the machine and table had been raised-some 4 inches as testified-since Jenkins'
departure From the photograph it appears that the raised table was below the hips of
Supervisor George biattox, standing nearby, who is 5 feet 7 inches tall. I would estimate
that the table was therefore less than 3 feet high in the picture Jenkins is at least
6 feet tall, and he credibly testified that the slitter table was a little over knee high.
2i The entire slitter, a heavy piece of equipment, had to be raised The process re-
quired, among other things, several hours of machine work
25 Afterward, Jenkins requested the personnel office to communicate with Dr Roberts
Jenkins' proffered statement concerning Dr. Roberts' diagnosis, on objection, was not
taken Personnel Director Smith testified he was told by Jenkins or the nurse that the
doctor could not find anything actually wrong with Jenluns' back, that it was is con-
genital back condition which could bother Jenkins "without them knowing what It was "
Jenkins testified there was nothing wrong with his back generally.
681-492-63-vol. 140-60
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other employee, Whitener,26 who had been assigned to the slitter after Jenkins left,
complained that the work bothered his back and was transferred to another depart-
ment after 2 or 3 weeks.27
The transfer of Jenkins to the slitter from his long-held job as spotwelder is ren-
dered suspect by a number of obvious factors, e.g., Foreman Rush's remark to Tipton
in July or August that Jenkins was a ringleader whom Respondent wanted to get rid
of; the timing of Jenkins' transfer shortly after he began wearing union buttons in
September; and Supervisor Holland's implied threat that he was "messing up." Even
though Jenkins was moved from the spotwelder after he indicated to Holland that
he was satisfied to remain on that job, the fact remains that he had earlier made
repeated requests to be transferred and did not protest when he was told of his
assignment to the slitter. From his testimony it appeared he was content to stay
on the slitter if the table were raised. On the evidence, it cannot be found that the
slitter was a demotion, or that Respondent anticipated that Jenkins would have
trouble with his back on the new job, or that Respondent was setting him up for
discharge in another department. In all the circumstances, I find the transfer was
not a violation, as alleged.
However. I do find on substantial evidence that the "layoff" of Jenkins on October
16 was an intended discrimination because of his open and marked union advocacy
Jenkins had been with the Respondent for about 5 years. During this time he had
demonstrated productive performance on a number of jobs when his work was
slack on the spotwelder and latterly, when Holland put him on temporary jobs on
account of his ailing leg. I believe Respondent could readily have found other
employment for Jenkins in the plant of 1,200 employees, even his old spotwelder
job, since he had been on the slitter for only a brief time and began complaining
about his back immediately. It was apparently easy to find another assignment for
Whitener, a new employee, after he had been on the slitter 2 or 3 weeks and com-
plained of his back. I am convinced that Respondent, being cautious after the prior
Board order, saw and welcomed the opportunity arising from Jenkins' difficulty with
his back to "get rid of" him. While it is more than likely that a transfer from the
slitter could promptly have been arranged when Jenkins spoke to Smith on October 3,
I find that Jenkins was properly on sick leave because of a stiff back on the days he
was off from work until October 16.28 I conclude, therefore, that as of October 16
Respondent laid off Jenkins in violation of Section 8(a)(3). I further find Re-
apondent independently violated Section 8(a) (1) in (a) Holland's threat to Jenkins
that he was "kind of messing up," (b) Rush's remark that he was not doing Jenkins
any favors. and (c) Rush's statement that Jenkins would probably have to leave the
State to find a job 29
6. Winfred Sutton
Sutton has been employed with the Respondent for about 4 years as an inspector
He began wearing a union badge on the job after Carl Hoyle's reinstatement on
September 11, 1961.30 Thereafter, in the latter part of the month, he was assigned
to work alone at the Company's warehouse located in a town 12 miles from the plant.
The warehouse had cartons of materials which had become wet and damaged. Sutton
was given the job of sorting out the rejects and recartoning the undamaged mer-
chandise. He took off the union button upon the transfer and has not worn it since
Sutton was at the warehouse for 3 weeks, and was then returned to his old job with
no loss of pay.
20 Whitener was the same height as Jenkins, about 6 feet
r An admission in Cable's testimony, I do not credit Cable that Whitener was trans-
ferred because he was a new employee and not because of his back Neither is Rush
credited that Whitener was not assigned to the slitter permanently and that Whitener
did not complain to him or to Cable about his back hurting
28 The record shows Jenkins received compensation for these days under a health in-
surance plan in effect at Respondent 's plant.
-9 The facts found and relied upon are based on a composite of credible testimony,
mainly that of Jenkins and admissions of Rush, Holland, Cable, and Smith Any contra-
dictory testimony on the part of the latter witnesses is not credited
so Sutton's testimony concerning his union activities is not clear He stated that
about the time Hoyle was fired for the first time (April 18, 1960), he wore a union
badge for about a week and obtained employees' signatures on union cards He also
testified he started wearing the union button when Hoyle was fired for the second time
(September 29, 1961). However, in light of the other dates fixed in his testimony, I find
that Sutton meant to describe his union activity as occurring after Hoyle's reinstate-
ment but before his second discharge.
WIX CORPORATION 933
The General Counsel alleges the 3-week transfer as a discrimination. The allega-
tion is without support. A qualified inspector was needed on this job. The warehouse
was being eliminated in Respondent's process of building a new plant and the dam-
aged merchandise could not be moved in that condition. No discernible detriment
was suffered by Sutton and no reason shown why he should not have been picked by
Respondent for that work.31 Accordingly, I find no violation.
7. Julius P. Caldwell
Caldwell was employed from September 1960 to September 25, 1961, when he
was told that he was laid off to make room for James Buchanan, who was reinstated
by Respondent pursuant to the Board's prior order. Violation of Section 8(a)(3)
is alleged.
In his hiring interview, Caldwell told Personnel Director Smith he had been a
member of the UAW in Detroit. He was asked by Smith, and did agree, not to
engage in union activities and to help Smith keep the Union out. After the Board's
decision in the prior case, he did not attempt to conceal his union sympathy. About
2 weeks before he was laid off, he solicited union cards from a few employees and,
3 days before, he began wearing a union button on the job.
Caldwell's function was to break molds in which the air filters were shaped. Two
men were assigned to this operation; the other employee was identified merely as
"Carl." Don Sawyer, who had previously been a pleater operator, was moved to the
job of mold breaking, replacing Caldwell, and Buchanan was put back on his old
job of pleater operator. Supervisor Herschel Welsh, in charge of the department,
testified that he had to make the choice of laying off either "Carl" or Caldwell and
he considered "Carl" the better employee of the two. Welsh described Sawyer as
having more diversified experience in the department. Sawyer and "Carl" both had
more seniority than Caldwell. The number of employees in the department, their
functions, skills, seniority, and competence were not evidenced, except for the fact
that Butler Black was a "sleever." Other employees in the department also wore
union buttons, e.g., Butler Black and Robert Baldwin. And Sawyer was known to be
active in the Union, signing up employees and wearing a union button.32
At the time of the hearing, the air filter department had been moved to a new
plant. Only 1 pleater operator is now in the department but there are about 8 or
10 throughout the plant. Sawyer and "Carl" have since quit and have not been re-
placed. Caldwell's job of mold breaking is being done by Edward Reid, as to whom
there is no other evidence, such as, whether he is a new employee or a transferee
from another department.33
In the context of the evidence concerning Caldwell, it is speculative to infer that
he could have been transferred to an existing vacancy in the same or another de-
partment, or in general that Respondent's purpose was to make room for the re-
instatement of one union adherent by ousting another. No theory or argument was
advanced by the General Counsel to spell out its alleged case on Caldwell, and no
evidence was adduced to refute the explanation given by Supervisor Welsh, whom I
credit In the circumstances, I find that the General Counsel failed to maintain his
overall burden of proving discrimination against Caldwell. I will accordingly recom-
mend dismissal of this allegation. However, I find independent violations of Section
8 (a) (1) with respect to Caldwell's hiring interview in which he was asked to agree
not to engagein union activities and to help keep the Union out.34
8. Kenneth Daniels
After 2 years employment, Daniels was discharged on September 14 for the given
reason that he destroyed company property. He was active in the union campaign.
On the day of his discharge, he obtained from Carl Hoyle, a handful of union but-
tons and passed them out in the canteen. He also wore a button on his shirt and
had union cards signed by three employees.
The incident in question occurred between 9 and 10 a in. on September 14.35
31 Supervisor Herschel Welsh is credited.
33 Supervisor Welsh observed that Sawyer had on a union button for about a week
before Caldwell's layoff and had heard reports that he was passing out union literature
33 Elsewhere in the record there is evidence of transfers between departments and the
hiring of a new employee, Whitener, about the time Caldwell was laid off
34 Caldwell is credited ; Smith's denials are rejected.
=Certain of Daniels' actions were observed by Robert Ratchford, who was preparing to
conduct a time study on Daniels' operation. Ratchford's testimony for the most part
corroborated that of Daniels , who is credited.
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Daniels' function was to apply a rubber airhose to blow out dust from filters which
were moving on a chain-driven conveyor belt while they were being prepared for
final packaging.36 The production line had been stopped because of a problem in
the packaging department. When it started up again, Daniels found the airhose
lying in a heap near the chain. He did not know who put it there. He reached
down to pick up the hose and it got caught in the chain. He started to pull oil the
hose (to extricate it from the chain) and then jumped over the conveyor belt to the
other side to reach a master switch in order to shut off the motor.37 He took hold of
the end of the hose, which had already been cut into by the chain, and tore it out.
Daniels indicated he acted promptly to shut off the power when the hose got caught,
but does not know whether it was before or after he pulled on the hose after he
jumped to the other side of the conveyor. The chain was also broken, although
Daniels testified he was unaware of this fact at the time.
Daniels went to the maintenance shop and returned with a screwdriver and a pair
of pliers. When he got back, Supervisor Robert Friday was there and both of them
repaired the hose by cutting off the damaged section, about 2 to 4 feet, and putting
the nozzle back on. Friday had called the maintenance man, who repaired the
chain 38 The production line was again started up after about 30 to 45 minutes, and
Daniels resumed work. At the time of the incident, nothing was said to Daniels by
Ratchford or by Friday. Ratchford reported the matter to his own supervisor, Jenks
Dillinger Dillinger informed Wade A. Robinson, foreman of the packaging depart-
ment, and he in turn called Supervisor Friday and told him of his decision to dis-
charge Daniels as he was "caught in action." That morning, between 11 and 12
o'clock, Friday escorted Daniels to the personnel office where waiting were Smith,
Robinson, Mike Jones, and another person, unidentified. Smith told Daniels he had
destroyed an airhose and that he had heard "other things." He turned to Robinson,
who confirmed his decision to discharge. Upon the accusation, Daniels said it was
a "damned lie," that they fired him "on account of union activities." Smith con-
curred in the discharge and Daniels was paid off.39
The "other things" which Smith mentioned he had "heard" about Daniels pre-
sumably were those described in the testimony by various of Respondent's witnesses
(1) Before the airhose incident, Ratchford, the time study man, overheard Daniels,
while standing in the aisle, "cursing" to himself for apparently "no reason." In his
testimony Ratchford was sharply critical of this "attitude" of Daniels. Daniels, draw-
ing a distinction, said he did not "swear," but he did "cuss" a lot and might have at
the time used a few "g d.'s." Supervisor Friday had earlier warned the whole de-
partment about "cussing," which, it appears, was common in the plant.40 (2) Some-
one had been throwing metal in the "chopper " 41 The effect was damaging to the
machine. Henry Taylor, the employee who operated the chopper, testified that
Daniels was the one who threw the metal in. He told Friday he knew who was doing
it but refused to divulge Daniels' name 42 (3) Someone was using the public ad-
dress system to tease an employee in another department The words used were
"brother-in-law"; the implication suggested was that the unidentified person was dat-
i^g the teased employee's sister. The employee being teased complained to Personnel
Director Smith. Smith and Robinson stated they suspected Daniels but were never
able to prove it. Robinson "had his own ideas" who was putting metal in the
chopper and stated that after Daniels was discharged, it completely stopped. No
one had spoken to Daniels about the chopper or the teasing on the public address
4 The conveyor belt was about 30 feet long and 18 Inches wide. The airhose was
12 to 15 feet long and less than 1 inch in thickness The belt "rode" the chain, and
the motor was underneath. Daniels was stationed some 6 to 10 feet from the finishing
end of the conveyor, and his was the last operation on the line About five to seven
other employees were on the production line at the time.
"II find it immaterial whether, as Ratchford testified, there was also a switch on
Daniels' side of the conveyor.
4 Respecting these collateral facts, I do not credit Friday insofar as his testimony
conflicts with that of Daniels and Ratchford . Cecil Byers , the maintenance man, was
not called to testify.
4 Smith testified Daniels said the hose "got tangled up , said that he wasn't being
rough, that he was trying to get the hose out or something of that nature "
40 Respondent indicated that the "cursing" was not a ground in itself for Daniels' dis-
charge but was "background."
41 A machine which cuts up waste, such as straw and sawdust, to be used inside the
filters.
0 Taylor was not disciplined for such refusal.
WIX CORPORATION 935
system 43 Friday said he had had trouble with Daniels numerous times but "nothing
really bad," mentioning that Daniels' attendance was "not the best" and that he had
warned Daniels about roaming out of his department.
Although these various other matters or "background" were brought into the
record by Respondent, the reason given for Daniels' discharge was "destruction"
of company property.44 The readiness to lay substantive blame on Daniels for ,the
chopper damage and for the teasing on the public address system without proof and
without even questioning Daniels discloses, in my opinion, an essential unfairness.
The evidence does not establish a deliberate destruction of the airhose or the chain
on the conveyor belt. Rather, the earmarks are clearly those of an industrial acci-
dent, not the fault of the employee, who in this instance did all he reasonably could
to avert it and minimize damage. Respondent's written rule lists as a cause for
discharge "deliberate destruction or crippling of Company tools, machines or prod-
ucts " [Emphasis supplied.] Again, I am struck by the unfairness of Respondent
in dealing with Daniels, more especially where the decision to discharge was so hastily
made by Robinson, on hearsay, without consulting Damels.45 While unfairness alone
does not, of course, establish unlawful discrimination, it is a significant element here
in assessing plausibility and veracity of Respondent's defense. In the circumstances,
I do not believe Respondent's asserted reason or reasons for discharging Daniels, and
find they were pretextuous. It is my opinion that the plausible reason or motive lies
in Respondent's demonstrated hostility toward the Union, the extensive unfair labor
practices it has engaged in, and its determination to eliminate yet another active
union protagonist. I conclude that in discharging Daniels, on September 14, Re-
spondent violated Section 8(a)(3).
Daniels reported his discharge to his probation officer, William A. Canter.46 In
an effort to get Daniels his job back, Canter thereafter discussed the matter on the
telephone with Personnel Director Smith, and, about September 30, came to the
plant with Daniels for a meeting with Smith.47 Daniels credibly testified, viz: Smith
discussed union activities and said he was sorry that he heard Daniels was wearing
one of those buttons. He spoke of what union mien up north said about the south,
e g., "wouldn't it be awful about those hillbillies down here in the south, if we could
just get the union in down there, could you imagine these hillbillies with a gun in
their hand . . . . When the conversation turned to the subject of Daniels' job,
Smith said that if Daniels would sign a statement saying that what he told the
Labor Board was a lie, Smith would give him back his job, and it would take about
30 days.
Canter testified that he did not hear the foregoing statements of Smith, that they
were not made in front of him. However, he gave in substance this version: 48
Smith first asked the question whether Daniels did not sign a complaint against
Respondent relating to his union activities. Daniels said he had signed some papers,
he did not know what Smith stated "he could not re-employ the boy at this time,
because he had made accusations against the company, and .that he didn't feel that
he would have any right to re-employ him." Daniels asked if he dropped the com-
plaint, would Smith take him back. Smith said that Daniels would have to drop
43 Personnel Director Smith was the designated probation counselor and adviser of
Daniels and of other employees at the plant. Daniels and the others were on probation
from criminal convictions
44 Probation Officer Canter testified (see, infra) that Smith told him that Daniels had
been discharged for "malicious damage" to company property and for several other
reasons, and that the incident involving the airhose was the "straw that broke the
camel's back."
45 Compare Respondent's policy of trying to assist and counsel with probationers who
are having trouble, as described by Personnel Director Smith in the prior decision (132
NLRB 1059, 1070). Smith also testified in the present case:
Q. The Company is especially cooperative with those employees who have been
paroled and under the custody of the Court, isn't that true?
A. I took a personal interest in them myself.
40 Canter, a State probation officer, had continuing relations with Respondent, in par-
ticular with Personnel Director Smith, concerning a number of probationers at the plant,
including Daniels.
47 Daniels Indicated Mike Jones was present at the meeting Canter stated that Jenks
Dillinger and Charles Loggins were also there. Jones, Dillinger, and Loggins testified
for Respondent at the hearing but were not questioned about the meeting with Canter
49 As General Counsel's witness.
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the proceedings, that he, Smith, was not able to do anything . 49 Daniels asked
Smith how he could do this, and Smith said he would have to do it on his own,
through the Board at Winston -Salem . Canter or Daniels then asked Smith whom
Daniels had to write , and Smith gave "someone 's name" at the Board. However,
Daniels did not say he would write.
Smith testified that Daniels said he would like to drop the charges and that Smith
then explained , ". . I did not think it was possible , that it could not come from
us, the company , that this was one of the reasons that I was opposed to the union,
that he could not drop these charges that the union would hold him to it, and
however, I suggested that he write to Winston-Salem ... and tell them and that is
all he could do that I couldn ' t help." Otherwise , Smith made denials of Daniels'
testimony as it related to the meeting with Canter.
The General Counsel alleges that Respondent conditioned the reemployment of
Daniels on his withdrawal of unfair labor practice charges . 50 The testimony
of Daniels , which I have credited , was direct on the point that such a con-
dition was proposed by Smith , with reemployment to be effected in about 30
days. Daniels' version was that Smith specified that he sign a statement
saying that what he told the Labor Board was a lie. Whether this was the actual
language used by Smith or the effect which Smith intended to, and did, produce on
Daniels by proposing that he withdraw his complaint-I find the result is the same.
Canter's testimony in essence corroborated Daniels. Moreover , even relying ex-
clusively on Canter's version ,51 I would find an improper inducement by Smith
designed to cause Daniels to rescind the complaint and information concerning his
discharge which he conveyed to the Board . Canter's statements on cross-examination
that Smith made Daniels no proposition whatsoever and that there was no guarantee
"either way" were merely conclusions on his part . His version of the facts, in my
opinion, justify the inference I have drawn . The entire purpose of the meeting with
Smith-preceded by telephone exploration of the subject between Canter and Smith-
was directed toward getting Daniels reinstated to the job ( from which I have found
he was wrongfully discharged ). And as a probationer his need for a job was the
more critical At the meeting , it was Smith who broached the subject of Daniels'
complaint with the Board. Then by stating that he could not "at this time" reemploy
Daniels because he had made accusations , Smith impliedly, but quite effectively,
exerted pressure on Daniels to seek to withdraw the case in order to get back his
job. There is no reasonable basis why Smith could not consider restoring Daniels
to his job because he went to the Board with his accusation of discriminatory dis-
charge. The manner in which Smith held out Daniels' complaint as a bar to con-
sideration of reemployment was, I find , an interference with Daniels' right to pursue
legal processes of the Board and , in effect, an unlawful inducement upon him to
withdraw the complaint . Accordingly , I conclude that by such conduct Respondent
violated Section 8(a) (1), as alleged 52
9 Robert W. Eng
Eng worked for Respondent from sometime in 1958 until his termination on
September 18, 1961 Beginning on the day Carl Hoyle was reinstated, Eng engaged
in union activities by wearing a union button on his shirt pocket and having union
cards signed by several employees Eng was discharged allegedly for threatening
Lloyd Melton with burning his house down if he did not sign a union card. In his
testimony, Eng denied making any such statement to Melton or threatening him in
any fashion, even in jest.
Melton, an employee of 11 years' service, testified in substance that on September 18
Eng asked him if he was going to sign a union card. When he told Eng he did not
care about the Union, Eng said, "Your house might burn down." Melton promptly
related the conversation to his supervisor, Otis Cable, who took him to see Personnel
19 Canter did not remember Smith offering Daniels his job back, but Smith told Canter
he could not "consider" taking him back while the complaint was on file.
50 It is noted that the original charge herein , which included the allegation of Daniels'
discharge , was filed by the Union on November 8, 1961 From the testimony it is clear,
however , that Daniels did in some form make a complaint to the Board concerning his
discharge and this was the subject of discussion at the described meeting with Canter
and Smith.
511 do not find Canter's testimony on the issue materially in conflict with that of
Daniels. If and to the extent that any conflict were present, I would credit Daniels
Among other things , Canter, under Respondent 's cross-examination , shifted and wavered
from his testimony given on direct
61 Apart from his admissions, I do not credit Smith.
WIX CORPORATION 937
Director Smith. Smith then summoned Eng to the personnel office; Mike Jones
and Melton were present. Smith asked Eng if he had threatened to bum Melton's
house down. Eng said that he was "just kidding." Smith discharged Eng. At the
end of his workday, Smith and Jones escorted Melton home, and the same night,
police patrolled in front of Melton's home. Cable, Smith, and Jones gave cor-
roborating testimony.
Eng's version was that a week before his discharge he had asked Melton to sign
a card and Melton said he would, but then said he wanted time to think it over. On
the morning of September 18, Eng asked Melton if he still wanted to sign a card,
and Melton said, no, he had changed his mind. Shortly thereafter, Eng was called
to Smith's office, with Jones and Melton standing by. At this interview, Eng denied
that he threatened to bum Melton's house down. He confronted Melton and de-
manded that he tell Smith that he, Eng, made no such threat. Smith told Melton
he did not have to say anything, and Melton remained silent. Smith, after lecturing
Eng about making threats, effected his discharge-at about 9 a.m. on September 18.
In the direct conflict involved whether Eng made the statement, "Your house might
burn down," I credit Melton. I cannot conceive that Melton concocted such a story
and maliciously carried it to the conclusion of Eng's discharge. At the same time,
it seems dubious that Eng would seriously intend such a threat. As appears most
probable, I find that he did tell Smith he was "just kidding," although testimonially
Eng repeatedly denied it.
However, the discrediting of Eng would not in and of itself cause a forfeiture of his
case. If Respondent's true motive for the discharge was Eng's union adherence, it
would nevertheless have violated Section 8(a) (3). The question is not free of doubt,
particularly in light of the pattern in the present and prior cases of Respondent's
seizing upon pretexts to disgorge the plant of union activists. The machinery was ap-
parently well oiled to render judgment and speedily execute Eng's discharge, as with
certain of the others. When Eng was brought up to Smith's office, it would appear
that the decision to discharge was settled. A tape recording apparatus had already
been secretly installed in Smith's desk to record the discharge interview.53 However,
in view of Eng's insistence that he did not make this statement to Melton, not even in
jest, there was no opportunity properly to explore the question of whether he was
in fact "kidding," and whether it was so understood by Melton and so reasonably
impressed upon Smith. In the circumstances, I accept the testimony that Melton
and Smith believed the threat was seriously made. The gravity of such a threat
would justify discharge and, as I find, it permits no inference here that Eng was
terminated for his union activities . Accordingly , dismissal of the allegation will be
recommended.
10. Carl Hoyle and Charles E. Ross
Both had previously been discriminatorily terminated by Respondent and were
reinstated pursuant to Board order in the prior case. Hoyle came back on Septem-
ber 11, 1961, and Ross about the same time 54 Their second discharge on Septem-
53 The instrument used was a small Stenorette dictating machine After a foundation
was laid, a purported tape recording of Eng's discharge interview and a typewritten
transcription were received in evidence, over objection. The recording instrument was
also admitted The purpose of Respondent's offer was to establish a prior inconsistent
statement by Eng, to wit , that he did say he was "just kidding " As I have discredited
Eng on this point on the basis of probative testimonial evidence, I do not rely in any
way on the tape recording I would in any event assign no weight to this evidence.
The Board is reluctant to accept dictaphone tapes and /or transcriptions thereof as being
accurate because of the mechanical possibility that they might be altered See, e g, Duro
Fittings Company, 130 NLRB 653 ; California Lingerie, Inc., 129 NLRB 912; Walton
Manufacturing Company, 124 NLRB 1331. It may be further noted that Smith indicated
that similar recordings were made of some 20 or 30 discharge interviews without telling
the employee involved He explained that he decided to do this after the previous hear-
ing as a means of protection because he was accused of saying things he did not say.
54 Neither Hoyle nor Ross was reinstated to his former job, and testimony was intro-
duced that both had afterward raised objection with Respondent concerning the jobs
they were given. Respondent countered with evidence to the effect that they consented
to take the assignments I believe these are primarily matters which concern compliance
with the Board 's prior order. As no allegation or theory was advanced by the General
Counsel relating to this aspect of the testimony , I do not rely on such evidence for the
purpose of any unfair labor practice herein. Similarly , the General Counsel raised two
incidents in which Carl Hoyle was ordered out of their respective departments by Fore-
man Rush and Supervisor Charles Wilkinson . As no allegations were made concerning
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ber 29 was assertedly for breaking Respondent's rule against one employee punching
another employee's timecard.
Both were foremost leaders in the union campaign. On reinstatement, both re-
sumed their union activity, e.g , soliciting union cards. Hoyle passed out union but-
tons and wore them on his shirt. Hoyle credibly testified that, in the morning of
the date of discharge, he was sitting at his desk working, "and these boys came up
and . . . started asking me about the-about T.V. the night before, what I con-
sidered an antiunion broadcast, and a couple of antiunion fellows down there were
giving me a fit about it, and we got into a brief argument there, and I was at my job
and didn't stop working ... and Mr. Smith bawled me out about it .... He told
me that they knew that I had been giving union lectures in the plant, and that they
had been bending over backwards to get along with me, but they couldn't put up
with what I was doing."
About 11 a.m. on September 29, Hoyle was called to the personnel office. Per-
sonnel Director Smith asked Hoyle why he punched in at 6 a.m. when his work did
not start until 7 a.m. Hoyle replied that he had permission to do so from his super-
visor, Gene Johnson, for the reason that he rode to work with Charles Ross who had
to be in at 6 a.m. Smith asked Hoyle whether he clocked in Ross' timecard that
morning and also whether he clocked out for Ross the previous day. Hoyle admitted
that he did in both instances. Smith discharged him 55
Ross was then called in. He admitted that Hoyle punched his timecard on both
occasions. Ross explained that he could not immediately find a parking place that
morning, and that he had dropped Hoyle off near the plant while he proceeded to look
for a place to park his car. Concerning the night before, another employee, Dink
Waters, had asked Ross to take him home, and on their way out it was suggested
that Hoyle punch the cards for Ross and Waters while they went out another door to
pick up the car.56 Smith said it was a serious offense and showed Ross a copy of a
written vile. Ross told Smith that he had never seen it and denied that he had
been given a copy of the rule when hired. Ross was discharged.57
Hoyle and Ross testified they knew that other employees clocked each other in
and out, and have seen supervisors present or in the area when this was done.
Hoyle had never been specifically told of the rule. However, confirming his state-
ments at an unemployment insurance hearing, he admitted he was aware of the rule,
but stated that the rule had not been enforced, that he knew of many instances of its
these incidents and their relevance to the issues is not otherwise apparent, I make no
findings thereon.
es Smith testified as to how he got the information about Hoyle and Ross: Timekeeper
Glenn Aldridge "informed us, he said I don't think (Ross] punched out last night either,
he went out the other door" Also Mike Tones reported to him that he saw Hovle
punch in Ross' timecard at 6 that morning Jones happened to be there that morning
because someone was selling eggs , but his purpose was not to watch for Hoyle punching
in Jones testified that plant protection was part of his job including the clocking of
timecards He had received complaints from watchmen that Hoyle and others had been
hanging around the front door and "understood" Hoyle was punching in at 6 a in when
he was supposed to be in at 7 am He saw Hoyle punch in, went over later and found
he had punched Ross' timecard Aldridge did not testify. I do not credit Smith's testi-
mony that Jones was not there to check on Hoyle
ae Aldridge told Smith he thought Hoyle had punched out for both Ross and Waters
Smith testified he called in Waters, who verified to him that he had punched his own
card 5 or 10 minutes before Hoyle Waters was not disciplined. Smith did not ask
Hoyle about Waters. Waters was not called to testify Although Respondent had at the
hearing timecards of other employees dating back to this period, it did not introduce the
timecards of Waters , Hoyle, and Ross. On this record, in particular Ross' testimony that
it was "suggested" in Waters ' presence that Hoyle punch out for both Ross and Waters,
T discredit Smith and find that Waters' timecard was in fact punched by Hoyle See
NLRB v Thomas Pa,-ran, Jr, t/a Silver Spring Transit Company, 237 F. 2d 373,
375 (CA 4).
57 Respondent had a purported tape recording of Ross' discharge interview and cross-
examined Ross with detailed questions and quotes derived from its transcription of the
tape Ross' answers consisted of admissions or failure to recollect, but no denials.
Respondent offered in evidence the tape recording and typewritten transcriptions for the
purpose of establishing certain prior inconsistent statements of Ross. The exhibits were
received I find no material inconsistencies between Ross' testimony and the alleged
typewritten transcription of the tape. Moreover, I would in any event assign no weight
to these exhibits (supra, footnote 53). Respondent indicated it also had a tape recording
on ilovle but it was not offered because no contradiction with his testimony is alleged
WIX CORPORATION 939
violation with no resulting disciplinary action . Ross indicated he had never officially
heard anything about the rule.
Respondent 's written rule stated as a reason for discharge : "Punching another
employee's timeclock card." I note that the rule does not on its face embrace the
employee whose timecard is punched , i.e., as it invloves Ross' alleged offense.sa
There is ample credible testimony by numerous witnesses for the General Counsel
that it was a common practice for employees to punch each others' timecards, that
supervisors were in the immediate vicinity of the tuneclock at the time , that specific
supervisors were directly aware of instances of this practice ,59 and that, apart from
Hoyle and Ross, no employee was ever discharged or disciplined for breach of the
rule 60 While it is by no means a crucial fact , I find on this evidence that there
were supervisors fully aware of the practice . That nothing was done about it
suggests that either the supervisors did not consider it a serious offense, or they
preferred to ignore it. In any case , by the existence of the practice the employees
were encouraged to regard the rule lightly and one which was not generally en-
forced . 61 There is no gainsaying that Respondent had a peifect and logical right
to institute the rule. However , I do not believe it was intended by the rule to
invoke full penalty of discharge in all cases of its violation . Reasonably , it would
be expected that particular circumstances would be considered in relieving or mitigat-
ing application of such a severe penalty. I would assume that the bulk of the
offenses consisted of employees who put in their full time for Respondent but
who, for the sake of momentary convenience , had another employee perform the
mechanical act of punching a card for them. At least as to Hoyle and Ross, there
was no showing whatsoever that they deprived Respondent of any working time. The
discharge of Hoyle and Ross was, in my opinion , unreasonably summary and harsh.
Neither the Board order reinstating them nor the fact of their union leadership
invested Hoyle and Ross with any special immunity against discharge for violating the
company rules . On the other hand, the existence of a rule and the fact of its breach
do not automatically furnish Respondent with privilege and immunity to discharge
union adherents . Under the law, the motive for discharge is the determining factor.
In all the circumstances , I do not accept Respondent 's ground as the true reason for
its discharge of Hoyle and Ross
Smith revealed to Schronce his antipathy toward Hoyle, because Hoyle, after
being given a job, became a union leader and "did the company like that " Smith
threatened Ross on the day of his discharge when he accused Ross of giving union
lectures in the plant. From the testimony , it is plainly evident that the reinstate-
ment of Carl Hoyle and the others following the Board 's order furnished the impetus
for a rejuvenation of union activity in the plant , openly displayed by the wearing
of union buttons . This actual or potential fact was undoubtedly of especial signifi-
cance to Respondent 62 The record here and in the prior case , including the previous
discriminations against Hoyle and Ross, well demonstrate Respondent 's obduracy
in seeking to rid itself of the union leaders. It may reasonably be inferred from
the findings herein that Respondent was lying in wait for an opportunity to oust
Hoyle and Ross on the appearance of a legitimate cause. It closely watched the
movements of these complainants and seized upon the timecard -punching offense
to sever both at one time-only 3 weeks after their renistatement On the entire
record, I feel impelled to conclude , as I do , that the Respondent 's motive in dis-
58 While it appears that come employees were given a set of rules when they Were hired,
that revision of these rules was distributed by supervisors from time to time and that
rules were posted on a bulletin board at some indefinite time in the past I do not find
in view of countervailing evidence , that the written rule against punching another em-
plovee 's timecard was effectively made known to every employee
50 Holland and Wilkinson
PO Supervisor Paul Dellinger testified that for over 11 years of his employment with
Respondent the rule against punching another employee ' s timecard was "strictly en-
forced " On further questioning , however, he stated that no employee was ever dis-
charged for breaking the rule , and that he was not aware of any violation of the rule
daring this time Dellinger did not recognize Respondent 's set of written rules in evi-
dence, said he had never read through them, but stated generally he "pretty well"
knew his rules.
"Additional time records were kept in each department for the production employees
However, no such record was kept for Ross, as he was a timekeeper
°2 According to Smith . "quite a number" of employees told him they were opposed to
the reinstatements and were upset about it
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charging Hoyle and Ross for the second time was the same as for the first, i.e., their
union leadership. Respondent thereby violated Section 8(a)(3), as alleged.63
11. Inducement of employees to waive their reinstatement rights
On August 17, 1961, the Board ordered Respondent to reinstate Michael K. Greene,
James Buchanan, Charles E. Ross, Hartwell C. Almond, Carl Hoyle, Shirley Hoyle,
and Brent Mayberry. Of these, only Buchanan was actively employed by Respondent
at the time of the hearing. Greene did not accept Respondent's reinstatement offer.
Concerning Mayberry, it was stipulated that if he were called as a witness for the
General Counsel he would testify that he received a letter from Respondent offering
reinstatement, worked a part of one shift, voluntarily quit, sent Respondent a letter
of resignation effective September 21 without previously "contacting" Respondent,
telephoned Respondent several days thereafter asking for some of his backpay, re-
ceived an advance of $800 on his backpay after signing a notarized document, which
stated in pertinent part:
During the period following my reinstatement, the Company never discrimi-
nated against me in any way or mistreated or brought any pressure to bear
upon me, directly or indirectly, which led up to my quitting.
I have no interest whatever in working again for Wix Corporation and if
offered a job there, I would refuse such offer.
Personnel Director Smith testified that before he wrote letters offering reinstate-
ment, he telephoned Almond, Mayberry, Buchanan, and Ross to try to find out
beforehand if and when they were going .to accept. Smith said Almond called him
shortly after the Board order and asked for money. Almond was not reinstated.
He was given two checks as an advance against backpay due (Smith was not sure
whether both checks amounted to $2,000). He testified that he told Mayberry and
Ross that Almond had received the money. Almond executed a notarized state-
ment,64 indicating in pertinent part:
I made up my own mind to reject [the reinstatement offer] without any promise
of benefit from the company for doing so, and without any pressure or force
being brought upon me. The company never threatened in any way to mistreat
me in the event I accepted the offer and return [sic] to work at Wix.
I am not interested in any way in returning to my job at Wix Corporation,
and if I were offered my job again I would refuse such offer. .. .
Ross credibly testified that about 2 or 3 days before he received Respondent's offer
of reinstatement, Smith telephoned him at a (gasoline) service station he was op-
erating and asked if he intended to take his job back. Ross replied he did not know.
Smith said he did not think it would be a good idea for Ross to go out of business
to come back to work, because he knew what he had there but did not know what
he would have at the Company, how long Ross would last or anything else. Smith
added that he felt that Ross would get into trouble with the other employees and
not be able to get along with them. Ross said he would let Smith know when he
got an offer. Smith stated, "Well, if money is what you are after, money is no
object" that "Almond felt with that much money he could go into business for
himself." Smith told Ross he would get -a letter in a few days. When Ross re-
ported to the plant after receiving Respondent's letter, Smith in substance repeated
that he did not think Ross and the other employees could get along, that "a lot of
water had gone under the bridge" since Ross left, and that he wished Ross would re-
consider his decision to come back to work.
Carl and Shirley Hoyle were in Chicago, Illinois, when they learned about the
Board's order in the prior case. On or about September 8, they returned to Gastonia,
63 The foregoing section is based on a composite of credited testimony, in particular
that of Carl Hoyle and Ross I regard Smith as an unreliable witness and do not
credit him generally. I found, among other things, that he shifted and changed his
testimony and colored his statements to accord with his conception of evidence most
favorable to Respondent. For similar reasons, I discredit Mike Jones
e+ Almond's statement shows that it was notarized on December 22, 1961, and Mayberry's
statement, supra, on December 7, 1961 No explanation of these dates appears in the
record Almond and Mayberry did not testify From the testimony of Ross and the
admissions of Smith, on which I rely, it clearly appears that the arrangements for the
money payments to Almond and Mayberry were made in September, shortly after
Respondent's reinstatement offers.
WIX CORPORATION 941
North Carolina, and visited Smith at the plant. Smith asked if they had a job in
Chicago. Carl Hoyle answered that he had, upon which Smith suggested that he
keep the job in Chicago ad said that "things were different" now at the plant. The
Hoyles were reinstated on September 11. Shirley Hoyle worked 3 or 4 hours and
then walked off the job, without returning. No discrimination is alleged in her case.
As found above, Carl Hoyle was again unlawfully discharged on September 29.
On November 30, Carl Hoyle called Smith and asked if there was some way to
get part of the backpay; he said he understood "some of the other boys in the case"
had received money. On the same day, at Smith's suggestion, the Hoyles came to see
Smith at the plant. Smith inquired as to the reason they wanted the money. Carl
Hoyle said he could not find a job around there and wanted to leave the State in
search of employment. Smith left the office, as he said, to see Mr. Alexander (the
Company president). Upon his return, Smith indicated they would have to sign a
statement before he could agree to give them a partial payment.65 They agreed
Statements were prepared by Respondent while the Hoyles waited.66 They read and
signed the statements, which were notarized, and each was paid $1,500.67
Carl Hoyle's statement which he signed for Respondent indicated that he had
been reinstated to an equivalent or better job than the one he previously had; that
following his reinstatement he was not mistreated or discriminated against in any
way whatever; that he was "fully familiar" with the rule against punching the time-
card of another employee; that he was not aware of any occasion on which the rule
had not been enforced; that he was discharged for this reason; and that-
I have no interest in returning to work at Wix Corporation under any circum-
stances, and if I were to receive an offer of reinstatement, I would definitely
refuse such offer.
Shirley Hoyle's statement indicated that she had properly been reinstated; that she
voluntarily quit without notice; that no pressure was brought to bear upon her, di-
rectly or indirectly, which caused her to quit; that she was not discriminated against
of mistreated in any way; and that-
I have no interest whatever in working again at Wix Corporation and if offered
a job there, I would refuse such offer.
In the Threads case, recently enforced by the Court of Appeals for the Fourth
Circuit,68 it was held that an employer violated Section 8(a) (1) by attempts to induce
employees, previously unlawfully discharged, to waive their rights to reinstatement,
and by thus circumventing the processes of the Board in connection with the Board's
reinstatement and backpay order.
Here, the Respondent's objective in keeping these discriminatees out of the plant
in abundantly manifest . This fact is highlighted by the evidence-apart from the
found discriminations and the threats-of Smith's attempts to dissuade Ross and
the Hoyles from accepting reinstatement following the Board's order; Respondent's
knowledge of the revival of union activities after certain of reinstatements were made;
and Respondent's concern with the alleged opposition of certain employees to the
reinstatements.
The statements given by Almond, Mayberry, and the Hoyles are called by Re-
spondent "affidavits," which they are in form. The General Counsel calls them "re-
leases " Respondent drafted and prepared the documents signed by the Hoyles, and
it may be assumed, I believe reasonably, that Respondent also did those of Almond
and Mayberry. In all instances, the language was similarly phrased, in careful and
absolute terms, to indicate a disclaimer by the employee of any desire whatever to
be reinstated. Respondent had each of the documents notarized in an effort to
formally bind the employee. In the circumstances, I draw the inference, with no
reservation of doubt, that Respondent intended these documents, at least so to im-
press the employees, as a waiver or release of their reinstatement rights. The testi-
mony that the Hoyles themselves proposed a "complete release" in order to obtain
05 The Hoyles had discussed with Smith an offer on their part to give Respondent a
"complete release," but not for the amount of money which they ultimately received
"Smith testified that "affidavits " were obtained because the Board was not satisfied
that Respondent was complying with the Board order Even assuming this was the
entire reason that Respondent required the statements , which I do not believe , it would
appear to be all the more reason for Respondent to clear the matter through the Board
61 They had earlier told Smith, in response to his question , that the Respondent owed
them about $ 6,000 or $7,000.
°Threads, Incorporated, 132 NLRB 451 , enfd . as modified , 308 F. 2d 1 (C.A. 4).
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some of their backpay is too vague and fragmentary to be of probative value. It
apparently pertained only to the backpay aspects, not to reinstatement, and in any
event was not offered by them in consideration of the amount of money they actually
received. Such an offer, even if made without inducement, would furnish no justifi-
cation for Respondent to enter into the transaction in question without the participa-
tion of the Board. What is significant about this piece of evidence is that Respondent
did engage in a discussion and bargaining with the Hoyles on the subject of a release
In any case, there was a presumptive, if not an inherent, inducement of these em-
ployees stemming from Respondent's discrimination against them and their conse-
quent need for the wherewithal to subsist and to seek other employment.69 As to
the Hoyles, the evidence is direct that Respondent made their execution of the state-
ments a precondition to the payment of any of the backpay due these employees
under the Board's order Nor does it aid the Respondent in this issue that the Hoyles
came to Respondent seeking their backpay. Respondent mentioned the subject of
money before offering reinstatement to Ross. It made such payments to Almond,
who did not accept reinstatement, and to Mayberry, who quit after 1 day's work.
Certainly, to say the least, Respondent was responsible for disseminating the idea
among the discriminatees that money was available under Respondent's terms
It is settled law that reinstatement and backpay under a Board order do not
create private rights flowing to the individuals affected, and are not amenable to
private settlement or adjustment, as in the case of an award of damages. Rather
they are remedies provided in the public interest to enforce a public right As such
they cannot be affected by any private agreement, such as Respondent sought to pro-
cure from the employees involved 70 The backpay awarded these individuals was not
a bargainable element, factor, or consideration in extracting from them a relinquish-
ment of their reinstatement rights or any concession whatsoever. To be sure,
Respondent had the option to appeal the Board's Decision and Order in the court of
appeals, or to comply therewith For a time at least,71 it decided upon the latter.
However, it could not thus accomplish compliance on its own terms and methods.
The matter of compliance at this stage was under the statutory aegis of the Board,
and did not include as parties in interest the employees affected by the Board's order
Indeed. on the face of it, Respondent was, by the very reason of its unlawful conduct,
in a vastly superior position in dealing privately with these employees. To permit such
deliberate bypassing of the Board's processes. as I find Respondent did, would allow
Respondent to profit by its own wrongdoing and serve to defeat the purposes for
which the proceeding was brought. As stated by the court of appeals in the
similar circumstances of the Threads case, a "most charitable view" of the employer's
efforts to persuade employees to release rights to reinstatements is that they were
"ill-advised and reprehensible." Particularly as Respondent was striving to keep
these discharged prounion employees out of the plant, its preparation of and participa-
tion in a private document containing a waiver or disclaimer by the employee of rein-
statement rights, in conjunction with the receipt of backpay. must be presumed as
having been procured upon the inducement or compulsion of Respondent The state-
ments of Almond and Mayberry fall into this category The statements of the Hoyles,
as T have found were extracted by expressly conditioning the payment of money on
their execution 72
m Not without consideration are Respondent's threats fmind herein tha* union ad-
herents who are discharged would have to leave the State to find emnlovment
71 Amalgamated Utility Workers v. Consolidated Edison Company 309 1' s 261, 269
V L R R v Arthur J Colter, et at . d/b/a Kiddie Ko1 er Jfanufaetu+eng 'ompenn, 105
F 2d 179. 182 (CA 6) ; Agioilines, Inc v N L R R . 87 F 2d 146. 150 (CA 50
V L R R v Threads, Incorporated 308 F 2d 1 (C A 4)
7 Respondent indicated at the hearine it was annealing to the court on all points of
the Board's decision, a determination at which it apparently arrived after making the
partial hackpav payments and the reinstatements described herein
77 In the circumstances, I find the statements of Almond, Mayberry, and the Hoyles
null and of no effect As to Almond and Mavberry, there may he a serious ouestion
whether compliance with the Board's prior reinstatement order was achieved a matter
which is not before me As to Carl Hoyle, his statement of waiver eannot he held as
an obstacle or bar to his reinstatement upon his second discriminatory diseharse See
I It Plastics Mifg Corp, 131 NLRB 299
WIX CORPORATION 943
By such conduct, in attempting to induce these unlawfully discharged employees
to waive their rights to reinstatement, and bypassing the processes of the Board, I find
that Respondent interfered with the rights guaranteed employees in Section 7, in
violation of Section 8(a)(1).73
It is also evidenced that, by the same promise of backpay, Respondent induced Carl
Hoyle to declare, in the same notarized statement, that his second discharge was
valid. This declaration does not, of course, have any effect upon the legal issue,
and I have found this discharge to be unlawful. However, Respondent's purpose, I
find, was to deter or prevent Hoyle from pursuing the vindication and remedies
afforded under the Act.74 Accordingly, I find that Respondent further violated Sec-
tion 8(a) (1).75
IV Ti[E EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operation of the Respondent here involved, set forth in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and foreign countries and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I will
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
When the unfair labor practices herein were committed, Respondent was under
order of the Board in the prior case to cease and desist specifically from engaging in
unlawful discriminations against employees, from certain coercive conduct, and in any
other manner from invading the rights guaranteed employees in Section 7 of the Act.
As I have found, Respondent has again engaged in extensive violations, and of a
similar character, including the discriminatory discharge of Carl Hoyle and Charles
E Ross for the second time Therefore, a cease-and-desist order in its broad form
is again fully warranted.76
It will be recommended that Respondent offer Carl Hoyle, Charles E. Ross, John
W. Bridges, Kenneth Daniels, and Jimmie Jenkins immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, and make them whole for any loss of earnings
suffered by reason of the discrimination against them by payment to them of a sum
of money equal to that which they would normally have earned, absent the discrimina-
tion, from the date of their discrimination to the date of the offer of reinstatement,
less net earnings during each period, with backpay computed on a quarterly basis in
the manner established by the Board in F. W. Woolworth Co, 90 NLRB 289
The recommended order will also provide that Johnnie Truett be restored to his
former job of spotwelder or to a substantially equivalent position. Although it has
been found that Bill Schronce had been discriminatorily transferred for a period of
1 day, no affirmative remedy will be recommended in view of the vagueness of the
monetary loss, if any. For like reason, no backpay will be ordered in Truett's case
It will be further recommended that Respondent preserve and make available to the
Board, upon request, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records necessary and useful to deter-
mine the amount of backpay due and the rights of reinstatement under the terms of
these recommendations.
Upon the foregoing findings of fact and upon the entire record in the cases, I
make the following:
73 Threads, Incorporated, supra; Allure Shoe Corporation, 123 NLRB 717, enfd 277
F 2d 231 (CA. 5).
74 The Issue, which was fully litigated , is sufficiently related, in my opinion, to the
allegations in the complaint
75 See Allure Shoe Corporation, ibid.; Jackson Tile Manufacturing Company, 122
NLRB 764.
70 N L R B v Express Publishing Company, 312 U.S. 426; N.L.R.B. v Entwistle Mfg
Co. 120 F. 2d 532 (CA 4).
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2 International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, UAW, AFL-CIO, is a labor organization within the meaning of
the Act.
3. By discriminatorily terminating Carl Hoyle, Charles E. Ross, John W. Bridges,
Kenneth Daniels, and Jimmie Jenkins, and by discriminatorily transferring Johnnie
Truett and Bill Schronce, thereby discouraging membership in the above-named
labor organization, Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (3) of the Act.
4. By interfering with, restraining, and coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
5. The aforesaid labor practices are unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
6. In discharging Robert W. Eng and laying off Julius P. Caldwell, and in trans-
ferring O. Winfred Sutton and Jimmie Jenkins, Respondent has not engaged in any
discrimination in violation of the Act, as alleged.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the cases , I recommend that Respondent , Wix Corporation,
Gastonia , North Carolina , its officers , agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International Union , United Automobile, Air-
craft and Agricultural Implement Workers of America, UAW, AFL-CIO, or in any
other labor organization , by discharging, laying off, refusing to reinstate , or transfer-
ring employees , or in any other manner discriminating in regard to hire or tenure
of employment or any term or condition of employment.
(b) Threatening employees with discharge or other reprisal because of their union
activities or sympathies ; threatening employees that if discharged they will have to
leave the State or county to find a job; promising employees benefits to discourage
their union membership or activities ; inducing employees or applicants for employ-
ment to agree not to engage in union activities and to help keep the Union out;
conditioning reemployment on withdrawal of unfair labor practice charges; attempt-
ing to induce employees previously unlawfully discharged to waive their rights to
reinstatement ; and seeking to deter or prevent employees from pursuing the remedies
afforded under the Act.
(c) In any other manner interfering with, restraining , or coercing its employees in
the exercise of their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of the
Act-
(a) Offer Carl Hoyle , Charles E. Ross, John W . Bridges, Kenneth Daniels, and
Jimmie Jenkins immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or other rights or privileges,
and make them whole for any loss of earnings in the manner set forth in the section of
the Intermediate Report entitled "The Remedy."
(b) Restore Johnnie Truett to his former job as spotwelder or to a substantially
equivalent position without prejudice to his seniority or other rights or privileges.
(c) Preserve and, upon request , make available to the Board or its agents all
payroll and other records, as set forth in the section of the Intermediate Report
entitled "The Remedy."
(d) Post at its Gastonia , North Carolina, plant copies of the attached notice
marked "Appendix ." 77 Copies of said notice , to be furnished by the Regional Di-
rector for the Eleventh Region, shall, after being duly signed by the Respondent, be
posted immediately upon receipt thereof in conspicuous places, including all places
where notices to employees are customarily posted, and be maintained for a period
of 60 consecutive days. Reasonable steps shall be taken to assure that said notices
are not altered, defaced , or covered by any other material.
7 In the event that this Recommended Order be adopted by the Board , the words "A De-
cision and Order" shall be substituted for the words "The Recommended Order of a Trial
Examiner" In the notice In the further event that the Board's Order be enforced by
a decree of a United States Court of Appeals , the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
WIX CORPORATION 945
(e) Notify the Regional Director for the Eleventh Region , in writing , within 20
days from the receipt of this Intermediate Report and Recommended Order, what
steps Respondent has taken to comply herewith.18
It is further recommended that the complaint be dismissed insofar as it alleges
violations of the Act not specifically found herein.
781n the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Re-
lations Act, as amended , we hereby notify you that:
WE WILL NOT discourage membership in International Union , United Auto-
mobile, Aircraft and Agricultural Implement Workers of America, UAW,
AFL-CIO, or in any other labor organization, by discharging, laying off, or
refusing to reinstate, or transferring employees, or in any other manner dis-
criminating in regard to hire or tenure of employment or any term or con-
dition of employment.
WE WILL NOT threaten employees with discharge or other reprisal because of
their union activities or sympathies; threaten employees that if discharged they
will have to leave the State or county to find a job, promise employees benefits
to discourage their union membership or activities; induce employees or appli-
cants for employment to agree not to engage in union activities and to help keep
the Union out; condition reemployment on withdrawal of unfair labor practice
charges, attempt to induce employees previously unlawfully discharged to waive
their rights to reinstatement; or seek to deter or prevent employees from pursu-
ing the remedies afforded under the Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist the above-named or any other labor organization, to bar-
gain collectively through representatives of their own choosing, and to engage
in any other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all such activities.
WE WILL offer the employees named below immediate and full reinstatement
to their former or substantially equivalent positions, and make them whole for
any loss of earnings they may have suffered by reason of the discrimination
against them:
Carl Hoyle Charles E. Ross
Kenneth Daniels Jimmie Jenkins
John W. Bridges
WE WILL restore Johnnie Truett to his former position as spotwelder or to
a substantially equivalent position.
All our employees are free to become, remain, or refrain from becoming or re-
maining members of International Union, United Automobile, Aircraft and Agri-
cultural Implement Workers of America, UAW, AFL-CIO, or of any other labor
organization.
WIX CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify any of the above-named employees presently serving in
the Armed Forces of the United States of the right to full reinstatement upon appli-
cation in accordance with the Selective Service Act after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 1831
Nissen Building, 310 West Fourth Street, Winston-Salem, North Carolina, Telephone
No. Park 4-8356, if they have any question concerning this notice or compliance with
its provisions