Cookeville Shirt Co.

In the Matter Of COOIEVILLE SHIRT COMPANY and KERMIT GIBSON, AN INDIVIDUAL In the Matter of COOKEVILLE SHIRT COMPANY and RAY VAUGHN, AN INDIVIDUAL Cases Nos. 10-CA-101 and 10-CA-102, respectively .Decided March 15, 1949 DECISION AND ORDER On November 5, 1948, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceedings,' finding (a) that in Case No. 10-CA-101, the Respondent had not engaged in unfair labor practices, as alleged, and recommending that the com- plaint be dismissed, and (b) that in Case No. 10-CA-102, the Respond- ent 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 copy of the Intermediate Report attached hereto. Thereafter the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, as amended, the Board has delegated its powers in connection with this case to a three-man panel consisting of the undersigned Board Members.* The Board has reviewed the Trial Examiner's rulings made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed, except as noted below.2 The Board has considered the Intermediate Report, the exceptions of the Respondent, and the entire record in these cases, and, to the extent consistent with this Decision and Order, hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ' The cases were not consolidated by a formal order but by agreement of the parties, the hearing was conducted as if such order has been entered. * Reynolds, Murdock , and Gray. In view of our concurrence with the Trial Examiner's dismissal of the complaint in Case No. 10-CA-101, we find it unnecessary to pass on the Respondent 's exceptions to certain procedural rulings made by the Trial Examiner in that case. In Case No. IO'-C'A- 102, we find no merit in the Respondent 's exceptions to the Trial Examiner's denial of its motion to dismiss the complaint on certain procedural grounds. 82 N. L. R. B., No. 3. 55 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Case No. 10-CA-101 The Trial Examiner found that the discharge of Gibson was not violative of the Act. In the absence of exceptions to this finding, we adopt it without further comment. Case No. 10-CA-102 The Trial Examiner found that Ray Vaughn was discharged be- cause of his union activity in -violation of the Act and not because of any dereliction in the performance of his duties or any misconduct in the plant, as contended by the Respondent. We do not agree. It is true, as found by the Examiner, that the record fails to show that Vaughn was as inattentive to his duties as the Respondent would have us believe. However, the fact remains that shortly before his discharge, Vaughn admittedly was reprimanded for his "horse play" during working hours and, as found by the Trial Examiner, on the day of his discharge, Vaughn ignited a match in the sewing room in violation of a safety rule. Moreover, in a prior case involving the discharge of other employees by the Respondent at or about times here material, we found no independent evidence of union animus by the Respondent and dismissed that complaint as to such employees 3 In the present record, there is also an absence of such evidence. That Vaughn was somewhat more active on behalf of the Union than any of the complainants in the earlier case, does not under all the circum- stances here present afford a substantial basis for imputing to the Respondent an unlawful motive in discharging Vaughn. ORDER Upon the entire record in those cases, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, and Section 203.46 of the Board's Rules and Regulations-Series 5, as amended, the National Labor Relations Board hereby orders that complaints in Case No. 10CA-101 and Case No. 10-CA-102 be, and they hereby are, dismissed in their entirety. INTERMEDIATE REPORT AND RECOMMENDED ORDER 'Clarence Musser, Esq., for the General Counsel. Martin d Cochran, by Carmack Cochran, Esq., of Nashville, Tenn., for Re- spondent. A. Statement of the Case in No. 10-CA-101 The original charge was filed October 31, 1947. An amended charge contain- ing the same allegations as the original, without substantial change was filed 8 Matter of Cookeville Shirt Company and P . M. French, 79 N. L. R. B. 667. COOKEVILLE SHIRT COMPANY 57 March 8, 1948. Both charges were over the signature of Kermit Gibson. There- after, on March 25, 1948, the General Counsel of the National Labor Relations Board, herein called respectively the General Counsel 1 and the Board, by the Re- gional Director for the Tenth Region (Atlanta, Georgia), issued a complaint against Cookeville Shirt Company, herein called Respondent, alleging that Re- spondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8, subsections 1, 3, and 4, and Section 2, subsections (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act, and of Section 8 (a), subsections 1, 3, and 4, and Section 2, subsections (6) and (7) of the Act, as amended by the Labor Management Relations Act, 1947, 61 Stat. 136, herein called the amended Act. Copies of the complaint, the charge, the amended charge, and a notice of hearing were duly served on Respondent and Gibson. A motion thereafter was filed with the Regional Director by counsel for Re- spondent urging that the complaint be dismissed or, if the Regional Director denied such motion, the dismissal of that portion of the complaint which appeared not to be based upon the charge or the amended charge. Ruling on the motion was reserved to the undersigned. The original charge was served upon Respondent on November 4, 1947, and clearly was timely filed and served.' The amended charge, filed March 8, 1948, was served upon Respondent March 10, 1948, more than 6 months after the happening of the alleged unfair labor practice and more than 6 months following the effective date of the amended Act August 22, 1947. The notice of hearing accompanying the complaint asserted that "A copy of the charge upon which the complaint is based is attached hereto." Only the amended charge was so attached. Counsel for Respondent argued at the hearing that since the complaint obvi- ously was based upon a stale charge, it should be dismissed. I denied the motion at the hearing and hereby affirm that ruling. The amended charge alleged no new matter and is substantially a restatement of the original' The state- ment in the printed notice of hearing that the complaint is based upon the amended charge, whether an inadvertence or not, cannot operate to change the basic fact that a charge was timely filed and served, thus satisfying the re- quirement of the amended Act. The complaint which thereafter issued, even though assertedly based upon a charge not timely filed, is not vulnerable to a motion to strike so long as there exists a valid charge to support it unless Re- spondent is in some way prejudiced. It is clear that no prejudice to Respond- ent resulted here. It received timely notice of the original charge and was served with a complaint deriving from the allegations of that charge.` 1 This designation is also applied to the attorney who appeared at the hearing in behalf of the General Counsel 2 See the order of the Board in Matter of Electric Auto Lite Company, Case Nos. 13-C-3058 and 3247, issued May 18, 1948, (unreported) where the Board said, "Section 10 (b) of the amended Act imposes no limitation upon the issuance of complaints in any case in which charges have been filed and served within six months after August 22, 1947.... . 8 The original charge alleged a violation of Section 8 (a) (1) and (4) of the amended Act; the amended charge without enlarging upon the allegations of fact, asserted that Section 8 (a) (3), too, was violated. Contrary to the contention of counsel for Respon- dent, I find that this does not change the substance of the charge or deprive the General Counsel of authority to issue a complaint containing such an allegation. * Except that the complaint in one paragraph alleged violations of the Act not set forth in either charge. Respondent's motion to strike that paragraph was granted at the hearing. 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to unfair labor practices, the complaint alleged that Respondent discharged Gibson on August 20, 1947, because of Gibson's membership in and activity in behalf of United Garment Workers of America, Local Union No. 323, A. F. of L., herein called the Union, and because Gibson appeared as a witness and gave testimony in an earlier Board proceeding,' hereinafter referred to as the 1947 case. Respondent's answer, dated April 3, 1948, admitted, in substance, the juris- dictional allegations of the complaint except with respect to the charge ; ad- mitted the discharge of Kermit Gibson although not for the reasons alleged ; denied the commission of unfair labor practices, and asserted that Gibson in filing the charges was "fronting" for the Union which, it alleged, was not in compliance with Section 9 (f), (g), and (h) of the amended Act, and moved therefore that the complaint be dismissed. B. Statement of ;he Case in No. 10-CA-102 Upon a charge duly filed October 31 , 1947, by Ray Vaughn, an individual, the General Counsel by the Regional Director for the Tenth Region issued his com- plaint, dated August 9, 1948, against Respondent alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act and Section 8 ( a), subsections ( 1) and ( 3) and Section 2 (6) and ( 7) of the amended Act. Copies of the complaint, charge and notice of hearing were duly served upon Respondent and Vaughn. With respect to unfair labor practices , the complaint alleged that Respondent discharged Ray Vaughn on February 28, 1946, because of his membership in and activity in behalf of the Union. Respondent's answer, filed August 19, 1948, admitted certain of the juris- dictional allegations in the complaint, admitted the discharge of Vaughn, al- though not for the reasons alleged, and denied the commission of unfair labor practices. On the same date, Respondent moved separately to dismiss the complaint or to strike portions of it giving as reasons: 1. That the charge was filed more than 6 months after Vaughn's discharge. 2. That the charge does not allege a violation of Section 8 (3), thus the complaint may not ° 3. That Vaughn is not "the real party in interest" but is "fronting" for the Union, an organization alleged not to be in compliance with Section 9 (f), (g) , and (h) of the amended Act. 4. That the issue of Vaughn's discharge should not be litigated until decision by the Board upon Respondent's exception to a ruling by the Trial Examiner in an earlier case dismissing without prejudice a similar allegation as to Vaughn.` Ruling on this motion was reserved to the undersigned who denied the motion in toto at the hearing. The ruling is affirmed. 6 Matter of Cookevile Shirt Company, 79 N. L. R B 667. A further allegation, that since August 20, 1947, Respondent had interrogated its employees concerning the Union and had by promise of benefits sought to discourage membership in the Union, was stricken on Respondent's motion made at the hearing as not sounding in the charge. O The copy of the charge served upon Respondent in November 1947, was a true copy of that filed by Vaughn except that unlike the charge filed, Respondent's copy did not contain the assertion that the facts alleged constituted a violation of Section 8 (a) (3) as well as (a) (1). I regarded this circumstance as immaterial. 7 This ruling was affirmed by the Board in its decision in Matter of Cookeville Shirt Com- pany, supra, issued September 15, 1948. COOKEVILLE SHIRT COMPANY 59 Pursuant to notices of hearing, a hearing was held on both complaints in Cooke- ville, Tennessee, on August 24, 1948, and subsequently on September 8, 9 and 10, 1948, before the undersigned, the Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel and Respondent were represented by counsel, participated in the hearing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The cases were not consolidated by formal order but by agree- ment of the parties, the hearing was conducted as if such order had been entered. A motion by the General Counsel to strike that portion of Respondent's answer in Case No. 10-CA-101 which alleged the Union not to be in compliance with Section 9 (f), (g), and (h) of the amended Act was granted as raising an im- material issue. A motion by the General Counsel at the close of the hearing to conform the pleadings to the proof was granted without objection. All parties were granted until October 10, 1948, for the purpose of filing briefs and/or proposed findings and conclusions. A brief and proposed findings and conclusions has been received from Respondent 8 Upon the entire record in the case, and from my obsevation of the witnesses, I make the following : FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT At Cookeville, Tennessee, Respondent is engaged in the manufacture and distri- bution of work shirts. During the year ending March 1, 1948, Respondent pur- chased raw materials having an approximate value of $100,000, of which 50 percent was received at Cookeville from points outside Tennessee. During the same period, approximately 75 percent of Respondent's production at Cookeville, having a value in excess of $75,000, was shipped from Cookeville to points outside Tennessee. II. THE LABOR ORGANIZATION REFERRED TO IN THE COMPLAINT United Garment Workers of America, Local Union No. 323, affiliated with the American Federation of Labor, is a labor organization admitting to membership employees of Respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The setting in which they are alleged to have occurred In January 1946, the Union began its attempt to organize Respondent's employees and in April of that year was successful in an election conducted by the Board. Thereafter, the Union filed charges with the Board alleging that Respondent had violated Sections 8 (1), (3), and (5) of the Act. Based s Respondent's proposed findings and conclusions are ruled upon as follows : In Case 10-CA-101 Proposed findings 1, 2, 3, 4, 7, 9, 10, 11, 12, and 13 are granted ; 5, 6, 8, 14 and 15 are denied in the form stated. Proposed conclusions 1 and 2 are denied ; 3, 4, and 5 are granted. In Case 10-CA-102 Proposed findings 5 , 6, and 7 are granted ; 1, 2, 3, 4, 8, and 9 are denied in the form stated Proposed conclusions 1, 2, 3, 4, 5, and 6 are denied. 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon the charge, a complaint was issued which alleged, inter alia, that Ray Vaughn had been discharged discriminatorily. In April 1947, a hearing was held upon the complaint before a Board Trial Examiner. Upon motion of Board's counsel and over objection by counsel for Respondent, the Trial Examiner dis- missed without prejudice the allegation concerning the discharge of Vaughn. The Board affirmed this ruling in its decision in the 1947 case. Kermit Gibson was called as a witness for the Board during the hearing and gave testimony. B. The discharge of Kermit Gibson. Case No. 10-CA-101 Gibson was first employed in the plant which later became the property of Respondent in 1936 and quit about a year later. In 1939 he was again employed for a few months. On May 16, 1946, he was employed for the third time and worked as a cloth spreader in the cutting room until his discharge on August 20, 1947. Gibson appears to have been well regarded by his supervisors and to have performed his work without particular incident until, in October 1946, a new cutting room superintendent, Charles Ferrell, was designated. Ferrell was critical of Gibson's work on several occasions, criticisms which Gibson resented, but in January 1947, recommended that Gibson's hourly wage be increased from 60 to 65 cents. According to Ferrell, although Gibson did not deserve the in- crease, he made the recommendation in the hope of improving Gibson's work performance. A few months after returning to Respondent's employ in May 1946, Gibson joined the Union and was elected to the office of guide, his duties being to conduct new members through the course of initiation. In April 1947, he testified as a witness for the Board, in the 1947 case, concerning Respondent's unilateral action in raising wages during the course of negotiations with the Union Thereafter, according to Gibson, Thomas P. Glenn, plant superintendent, became cool toward him and Ferrell became more than ever critical of his work. On August 19, 1947, near the close of the day, Gibson and his working partner, Arnold Platt, were spreading cloth when Ferrell asserted that one of the layers of cloth was slightly off-color and ordered it removed. Gibson's testimony that Ferrell exhibited great indecision in this matter is credited and it is found that Ferrell vacillated between removing the cloth and letting it remain ; finally re- solving upon the latter alternative. About then, Platt, according to Gibson, muttered, "Damn son-of-a-bitch," referring to Ferrell. This stimulated Gibson's risibility and he broke into laughter, audible to Ferrell. Ferrell accused Gibson of ridiculing him which Gibson denied, saying, "I wasn't laughing at you and this work, but, . . . I want you to understand that I laugh when I get tickled... . There is no law against that in this country . . . when this gets to be a place where you can't laugh, or can't look up, gets to be a slave shop like that, . . . I am ready to get out of a place like that." Then the bell signalling the end of the day sounded and Ferrell instructed Gibson to report- to the office of the superintendent in the morning. Gibson did so and was told by Glenn in the presence of Ferrell that he was discharged. Gibson attempted to explain what had happened the previous eve- ning and suggested that Platt be called to substantiate him30 Glenn waved his ° In its decision, the Board found this action to constitute a violation of Section 8 (5) of the Act. It does not appear from the decision, however, that Respondent denied making the wage change or announcing it on the day alleged. It is not clear that Gibson's testi- mony was in contradiction of any testimony offered by Respondent. 10 Gibson's attitude was provocative. Upon learning of his discharge, he exclaimed, "Well, you damn big crooks, firing a fellow without giving him a chance to find out what it is all about. . . . COOKEVILLE SHIRT COMPANY 61 attempted explanation aside saying that he already knew what happened, and refused to reconsider his action. On August 27, P. M. French, Respondent's vice-president, wrote Gibson, ex- pressing regret over his discharge and inviting Gibson to submit details of his termination so that French might determine if Gibson were entirely at fault. Gibson replied immediately, refusing to state his case by letter but offering to meet with any representative of Respondent in that connection if he were per- mitted to be accompanied by a union representative. After a further exchange of letters, Gibson and French met alone in an office in the Cookeville plant in late September 1947, and discussed the discharge. French read from Gibson's personnel file, entries which indicated that Gibson's work performance and atti- tude toward Ferrell had been unsatisfactory on several occasions. Gibson de- nied or explained these charges and seized the opportunity afforded him to criticize Ferrells capacity to perform the work of a supervisor. According to Gibson, French suggested that Gibson would not be content, working under su- pervisors who had participated in his discharge and suggested , "If you will come to Nashville" and talk to me and tell me all about this Union up here, I will give you a job, but, . . . I don't want you to go back up there . . . I don't think you all could get along." According to Gibson, French inquired if Gibson be- lieved that the reason for his discharge had not been expressed. When Gibson acknowledged that he felt this to be so, French pressed him to divulge it. This Gibson refused to do, asserting that French knew the true reason for his dis- charge and that it would be idle to tell French that which he already knew. Still according to Gibson, French spoke of an employee who, after unsuccessfully at- tempting to organize a union, came to French, expressed sorrow for his acts, and asked reinstatement to his employment. French told of this penitent, Gibson testified, "I gave him his job back.... He has been with me seven years and still making me a good hand." French's account of this conference differs materially from that of Gibson. French denied that the Union or the question of membership in a labor organiza- tion was mentioned by either of them ; denied that he offered employment to Gibson on condition that Gibson divulge information concerning the Union; denied that he cited the blissful example of an individual who had foresworn unions ; and testified that Gibson told him he did not want to return to work so long as Ferrell remained in charge of the cutting room. Thus the testimony of Gibson and French appears to be irreconcilable. But I am not convinced that either was consciously telling an untruth. Both agreed that there was discussion concerning a reason for Gibson's discharge which he would not disclose. Gibson, being a somewhat excitable individual as evidenced by his outbursts to Ferrell and Glenn, might reasonably have concluded that French was trying to gain information about the Union. French testified that he told Gibson they could resume their discussion in Nashville if Gibson desired. A remark which Gibson might have interpreted as a veiled offer of employment elsewhere if he would talk freely about the Union. In any event, I am convinced, and find, that French's account of this conference is the more accurate and his relation of the exchanges between him and Gibson is credited. I find that French offered no benefits to Gibson in exchange for information about the .Union. The question as to Gibson's discharge presents less difficulty. It is clear that Gibson held Ferrell in low esteem and that he was by no means discreet" about " French was not regularly at the plant but maintained an office in Nashville. '= On more than one occasion and in forceful and profane phrases Gibson expressed to other employees his uncomplimentary appraisal of Ferrell. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it. Ferrel naturally became resentful and was completely correct, on August 19, in his belief that Gibson was laughing at him. Gibson testified ( and prob- ably believed ) that his merriment arose from Flatt's remark. But his amuse- ment did not derive from the expletive but from its object, Ferrell , and from the incident concerning the off-shade cloth . Ferrell's resentment was justified and unfortunately for Gibson, he was in a position to retaliate and did so. The record does not substantiate the allegation that Gibson was discharged because he testified in a Board proceeding : still less that it was occasioned by his mem- bership in or activity on behalf of the Union . On the contrary, I am convinced that only because of his dislike for Ferrell and his disinclination to accord to Ferrell that respect to which the latter felt that he was entitled, was he dis- charged. Thus it is found that by the discharge of Gibson, Respondent did not violate Section 8 (1) and (3) of the Act. The plant closed in the winter of 1947-48, and on March 1, Ferrell left for other employment. On April 23, shortly after the reopening, Gibson was re- employed as a cloth spreader . He was still employed at the time of the hearing. C. The discharge of Ray Vaughn; Case No. 10-CA-102 In May 1945, Vaughn was employed as a cloth spreader in the cutting room under Foreman Lawson. After working there for about 2 months, he was trans- ferred to the sewing room as a bundle boy and continued in that employment until his discharge, February 28, 1946. Vaughn seems to have made a favorable impression upon his employer from the beginning. When offered a transfer to the sewing room he was told that his chances of promotion would be enhanced thereby. As a bundle boy, Vaughn worked under Foreladies O'Dell and Morgan and Head Forelady Jernigan. Jernigan, according to Vaughn's credited and undenied testimony, praised his work on a number of occasions as did Foreladies Ragland and Pittman . Russell W. Lewis, an industrial engineer,' told Vaughn on an unspecified date that if he continued his work performance he would earn promotion . However, on a date, probably in January 1946, Lewis reprimanded Vaughn for engaging in some "horse play" with another bundle boy and a forelady. Vaughn carried cut cloth from the second floor sewing room to the first and, occasionally, from one opera- tor to another . This latter duty necessarily entailed speaking to the operators in connection with the delivery of work. According to Vaughn, he was never subjected to criticism except upon the occasion in January mentioned above. About the middle of February 1946, Vaughn joined the Union and solicited other employees , principally operators in the sewing rooms, to sign union desig- nation cards. Vaughn testified, and was corroborated in this respect by Clarence Stone, president of the Union's local, that in the period of about 2 weeks between his joining the Union and his discharge, he secured the signatures of 75 or 80 employees. This solicitation, Vaughn asserted, occurred only before or after work hours or during the lunch period. Sometime between February 21 and 28, according to Vaughn's undenied and credited testimony, Head Forelady Jernigan said to him, "I understand they are organizing the union here, or trying to." Vaughn denied knowledge of such a campaign. Jernigan persisted, saying, "Well, you know more than you want to "Lewis is and was at all times mentioned herein an employee of a firm in Washington, D C. During 1945 and part of 1946, he was engaged in making a survey of the Cookeville plant in order to improve productivity and efficiency . His recommendations as to the hire, discharge, and transfer of employees were generally followed by Respondent For the month of January 1946, he was Respondent 's acting superintendent COOKEVILLE SHIRT COMPANY 63 let on. . . . Tell me something about it?" When Vaughn again evaded the inquiry, she went on to ask, "If they was to organize a union here , could I join it?" Vaughn replied that foremen and foreladies would not be eligible for membership. A week or 10 days before his discharge, according to Vaughn , he saw a match head on the floor in the sewing room . In order to avoid its accidental ignition, Vaughn explained, he struck and extinguished it. Lewis then appeared, asked Vaughn if he had been smoking but , according to Vaughn, appeared to accept and to be satisfied with Vaughn's explanation. Shortly after lunch on February 28, Vaughn testified, he had a short conversation concerning work with Dimple Warren, an operator . A moment later he was summoned to the office of Super- intendent Glenn 14 and told that he was discharged for general inattention to his duties, for talking 10 minutes to Warren, and for talking to the janitor. He was also handed a termination notice which stated the reason for his discharge to be for "lighting matches in the sewing room during working hours and for failure to tend to own work even after properly warned ." Vaughn denied on the stand that he had been warned concerning inattention to duty or about talking to other employees. Dimple Warren , a union member, called as a witness by the General Counsel, testified that she had never heard criticism of Vaughn, that she had heard the foreladies comment favorably upon Vaughn 's work, and that she never was given instructions about talking to bundle boys or criticized for doing so. Warren at first testified that she could not remember if she talked to Vaughn on the day of his discharge but later testified that she did and that the conversation may have taken place in view of Lewis and Glenn. She also testified that Vaughn successfully solicited her to join the Union in the plant during working hours, Cora Lee Nichols , a union member and a witness for the General Counsel , testi- fied that Vaughn was a good bundle boy ; that she had never heard criticism of him; and that he was active in soliciting employees to join the Union. Lewis testified that he was favorably impressed by Vaughn when the latter first worked in the sewing room but that Vaughn and another bundle boy, Thurmond, soon formed the habit of working together as a team with the result that they accomplished the work of one man. Lewis attempted to correct this practice, he testified, on several occasions . Vaughn took steps to improve his performance in this and other respects but Thurmon did not and was dis- charged. On January 10, 1946, according to Lewis, he observed Vaughn, another bundle boy, and a forelady in a conversation in the plant and that Vaughn appeared to threaten to strike the forelady. The next day he called Vaughn to his office, told him that he was not acting as a gentleman , and told him that he must stop the "horse play" and attend to his job . According to Lewis, Vaughn accepted the reprimand and promised to improve . About the middle of February, according to Lewis, he observed Vaughn and Vaughn 's brother in the plant. The brother , not being an employee, was in the plant in violation of rule. On Febru. ary 25, Lewis testified, he saw Vaughn in conversation with an operator where Vaughn had no reason in connection with his work to be. A half hour later, he again saw Vaughn seated at a machine. When Lewis asked him to explain his presence there, Vaughn answered that he had been asked to repair it. According to Lewis, there was no occasion for Vaughn to engage in such work as the two mechanics who were hired for that purpose were plainly visible in the machine'shop. Lewis testified that he thereupon took Vaughn to Glenn, is Glenn became Respondent's superintendent February 1, 1946. 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD told Glenn of previous warnings he had conveyed to Vaughn (which Vaughn then, assertedly acknowledged), and warned Vaughn that he would be dis- charged for the next rule infraction. Lewis denied that he had anything to do with the match incident, testifying that he first learned of it from Glenn, and denied that he knew of any union activity on the part of Vaughn. Superintendent Glenn testified that he learned of Vaughn's alleged proclivity for talking to operators and leaving his department without good reason by means of reports from Lewis and that Lewis also expressed the hope that Vaughn would correct his mistakes as he had "big hopes" for him and thought that he would make a good man. Glenn then observed Vaughn occasionally, noticed that he talked to employees "here and there" and on one occasion saw him in conversation with a maid for about 5 minutes. Glenn did not speak to Vaughn concerning these incidents but mentioned them to Lewis. A few days before Vaughn's discharge, according to Glenn, Lewis brought Vaughn to him, reviewed in Vaughn's presence the conduct which had occasioned criticism in the past, and warned Vaughn that he was flirting with discharge. According to Glenn, Vaughn did not deny the charges made on that occasion. On February 28, Glenn testified, he saw the flash of a match in the sewing room near where Vaughn was standing but that Vaughn left before he could reach him. During the lunch hour, which then intervened, Glenn told Lewis of the incident and of his determination to discharge Vaughn. After lunch, Vaughn was called to the office of Glenn and discharged. Glenn denied knowledge that Vaughn was a member of or active in behalf of the Union. Employee Loring Brewington testified that Vaughn struck the match on the day of his discharge and that she was questioned by Glenn in regard to this happening. According to Brewington's credited testimony, she did not reveal to Glenn that Vaughn was responsible, testifying," . . . I knew that was against the rules and I was afraid he might get fired." A few weeks later, Brewington encountered Vaughn on the street and told him that she had not identified him to Glenn. I am convinced, and find, that Vaughn was mistaken in his testimony con- cerning the date of the match incident and that it happened on the day of his discharge. I am also convinced, and find, that Lewis and Glenn, contrary to their testimony, knew of Vaughn's activity in support of the Union. Head Fore- lady Mattie Jernigan indicated that she possessed such knowledge by her ques- tions to Vaughn and the inference is permissible that in a small plant of 200 employees knowledge of such activity and the participants in it would quickly reach the ears of management's Although the testimony of Lewis gave the impression that he was quickly disillusioned from his early belief that Vaughn would make a valuable employee, this impression is dissipated by Glenn's testi- mony that Lewis was still'of that opinion after February 1 when Glenn became superintendent. Thus we have the situation of an employee whose performance had been praised by his foreladies and whose promise was pleasing to Lewis being discharged. Of course Lewis' testimony would indicate that Vaughn was inattentive to his duties on a number of occasions and that he showed little dis- position to correct his faults. This I do not credit. If it were true I believe that the foreladies under whom he worked and who surely would have been in a position to judge would have testified in that connection. None of them was called as a witness. The question still remains, however, was Vaughn discharged for cause or because of his union activity? Vaughn admitted striking the match and his 15 Matter of the Firestone Tire and Rubber Company, 62 N. L. R. B. 1325. COOKEVILLE SHIRT COMPANY 65 explanation of why he did so is not clearly exculpating. If it presented a hazard he could best have avoided it by putting the match in his pocket. Was this act so potentially serious as to merit summary discharge? Of course Respondent bad a right to discharge Vaughn for this act even though it might appear to be harsh punishment. It is not the function of the Board to substitute its judgment for that of the employer in such matters. The question thus narrows to this. Would he have been discharged for his act had he not been an active protagonist of the Union? I believe not. Nor do I believe that the striking of a match was as serious or hazardous an act as Respondent asserts. Clearly there was inflammable material about and carelessness with fire would undoubtedly be especially dangerous there. However, according to Stone's credited testimony, others smoked in the rest rooms and on the first floor of the plant; no one bad ever been discharged for lighting a match. Even French conceded that, he would not be surprised to learn that there was smoking in the plant even though it was against the rule. In fine, I find that Lewis and Glenn knew of Vaughn's union activity and that they sought a pretext upon which to discharge him. The match incident provided it. I find that Ray Vaughn was discharged by Respondent on February 28, 1946, because of his membership in and activity on behalf of the Union thereby dis- couraging membership in the Union, and that Respondent thereby violated Section 8 (1) and (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in Section III, C, above, occurring in connection with its operations described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the. several States and such of them as have been found to constitute unfair labor practices, tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent did not discriminatorily discharge Kermit Gibson, I will recommend that the complaint in Case No. 10-CA-101 be dismissed in its entirety. Having found that Respondent discriminated in regard to the tenure of em- ployment of Ray Vaughn, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the amended Act.10 I will recommend, therefore, that Respondent offer to Vaughn immediate and full reinstatement to his former or substantially equivalent position 1z without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of Respond- ent's discrimination against him by payment to him of a sum of money equal to that which he normally would have earned as wages from February 28, 1946, the date of his discharge to the date of Respondent' offer of reinstatement, less his net earnings 18 during that period. 16 Section 8 (1) and (3) of the Act which Respondent violated is continued without change of importance here as Section 8 (a) (1) and (3) of the amended Act. The amended Act contemplates no change of remedy applicable to the facts set forth in this case. 11 Matter of The Chase National Bank of the City of New York, San Juan, Puerto Rico Branch, 65 N. L R B. 827. 18 Matter of Crossett Lumber Company, 8 N L. R. B. 440, 497-498. 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the above findings of fact and upon the entire record in the cases, I made the following : CONCLUSIONS OF LAW 1. United Garment Workers of America, Local Union No. 32.3, A. F. of L., is a labor organization within the meaning of Section 2 (5) of the amended Act. 2. Respondent did not discriminate in regard to the hire and tenure of employment of Kermit Gibson in Case No.10-CA-101. 3. By discriminating in regard to the tenure of employment of Ray Vaughn, thereby discouraging membership in United Garment Workers of America, Local Union No. 323, A. F. of L., Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act and Section 8 (a) (3) of the amended Act. 4. By the discharge of Ray Vaughn, Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and the amended Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act and Section 8 (a) (1) of the amended Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act and the amended Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in the cases, I recommend in Case No. 10-CA-102, that Cookeville Shirt Company, Cookeville, Tennessee, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in United Garment Workers of America, Local Union No. 323, A. F. of L., or in any other labor organization of its employees, by discriminatorily discharging or refusing to reinstate, or in any other manner discriminating in regard to hire or tenure of employment or any term or -condition of employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist United Garment Workers of America, Local Union No. 323, A. F. of L., or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. 2. Take the following affirmative action which I find will effectuate the policies of the amended Act : (a) Offer to Ray Vaughn immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole in the manner set forth in Section V, above, entitled "The remedy" ; (b) Post at its plant in Cookeville, Tennessee, copies of the notice attached hereto and marked "Appendix." Copies of said notice, to be furnished by the Regional Director for the Tenth Region, Atlanta, Georgia, after being signed by Respondent's representative, shall be posted by Respondent immediately COOKEVILLE SHIRT COMPANY 67 upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees customarily are posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by other material; (c) Notify the said Regional Director in writing, within ten (10) days from the date of receipt of this Intermediate Report and Recommended Order, what steps Respondent has taken in compliance herewith It is further recommended that the complaint in Case No. 10-CA-101 be dismissed in its entirety. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended August 18, 1948, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Rtegulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Inter- mediate Report and Recommended Order or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and six copies of a brief iirsupport thereof ; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report and Recommended Order. Immedi- ately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. State- ments of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and if mimeographed shall be double spaced Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203.46 should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, con- clusions, and order, and all objections thereto shall be deemed waived for all purposes Dated at Washington, D. C., this 5th day of November 1948. WALLACE E. ROYSTER, Trial Examiner. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organizations , to join or assist UNITED GARMENT WORKERS OF AMERICA, LOCAL UNION No. 323, A. F. OF L., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL OFFER to Ray Vaughn immediate and full reinstatement to his former or substantially equivalent position without prejudice to any sen- iority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination. All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. COOKEVILLE SHIRT COMPANY, Employer. Dated-------------------------------- By-------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.