Burlington Mills Corp.

In the Matter of BURLINGTON MILLS CORPORATION, RANDLEMAN HOSIERY PLANT and AMERICAN FEDERATION OF HOSIERY WORKERS Case No. 34-C-4-22.-Decided April 6, 1949 DECISION AND ORDER On December 29, 1948, Trial Examiner Robert L. Piper 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 copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recommended dismissal of these allegations of the com- plaint. Thereafter, the Respondent filed exceptions to the Inter- mediate Report and a supporting brief. The General Counsel filed a brief in support of the Intermediate Report. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,2 conclusions and recommenda- tions of the Trial Examiner with the modifications indicated below. The Respondent's illegal activities, including the discriminatory discharge of Employee Mead, go to the very heart of the Act and indicate a purpose to defeat self-organization of its employees. We are convinced that the unfair labor practices committed by the Re- spondent are potentially related to other unfair labor practices pro- ' Pursuant to the provisions of Section 3 (b) of the National Labor Relations 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 [Chairman Herzog and Members Reynolds and Gray]. s We do not adopt the Trial Examiner's finding that Foreman Brown's criticism of employee Mead for obtaining oil from the oil room without permission constituted a violation of Section 8 (a) (1) of the Act Nor do we rely on this incident to support the 11nding that the Respondent discriminatorily discharged employee Mead 82 N. L. R. B., No. 89. 751 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD scribed and that danger of their commission in the future is to be anticipated from the Respondent's conduct in the past. The pre- ventive purpose of the Act will be thwarted unless our order is co- extensive with the threat. Accordingly, in order to make effective the interdependent guarantees of Section 7 and thus effectuate the policies of the Act, we have ordered the Respondent to cease and desist from in any manner infringing upon the rights of employees guaranteed by the Act.3 The Respondent argues that Mead was discharged for cause and that Section 10 (c) therefore bars either his reinstatement or the payment to him of any back pay. We have found that Mead was discharged because of his union activities and not for the reason alleged by the Respondent. Hence, Section 10 (c) has no applica- tion to the present case. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Burling- ton Mills Corporation, Randleman Hosiery Plant, Randleman, North Carolina, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in American Federation of Hosiery Workers, or in any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of their employment; (b) In any other manner interfering with, restraining, or co- ercing its employees in the exercise of the right to self-organization to form labor organizations, to join or assist American Federation of Hosiery Workers, or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : $ May Department Stores V. N. L. R. B., 326 U. S. 376; N. L R. B. v. Entwistle Manu- facturing Co., 120 F. (2d) 532 (C. A. 4). BURLINGTON MILLS CORPORATION 753 (a) Offer Woodrow Wilson Mead immediate and full reinstate- ment fo his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges; (b) Make whole Woodrow Wilson Mead for any loss of pay he may have suffered by reason of the Respondent's discrimination against him, by payment to him of a sum of money equal to the amount which he normally would have earned as wages during the period from April 17, 1948, the date of discrimination, to the date of Respondent's offer of reinstatement, less his net earnings 5 during said period; (c) Post at its plant in Randleman, North Carolina, copies of the notice attached to this Order and marked "Appendix A." 6 Copies of said notice, to be furnished by the Regional Director for the Fifth Region, shall, after being duly signed by the Respondent's repre- sentative, be posted by the Respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days there- after, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material ; (d) Notify the Regional Director for the Fifth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that in all other respects the complaint herein be, and it hereby is, dismissed. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist AMERICAN FEDERATION OF HOSIERY WORKERS, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from 4 See Matter or The Chase National Bank of the City of New York, San Juan. Puerto Rico Branch, 65 N L R B 827 S Matter or Crossett Lumber Co., 8 N L. It. B. 440, 497-8. 6 In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be inserted in the notice, before the words : "A DECISION AND ORDER," the words. "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Sec- tion 8 (a) (3) of the Act. WE WILL offer to Woodrow Wilson Mead immediate and full reinstatement to his former or substantially equivalent position without prejudice to any seniority 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 member- ship in or activity on behalf of any such labor organization. BURLINGTON MILLS CORPORATION, RANDLEMAN HOSIERY PLANT, Employer. By ------------------------------------- Dated------------------ (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Mr. John J. A. Veynolds, Jr., for the General Counsel. Messrs. D. E. Hudgins and John T. Edmunds, Jr., of Greensboro , N. C., for the Respondent. Mr. Robert D. Beanie, of Greensboro, N. C., for the Union. STATEMENT OF THE CASE Upon an amended charge filed on April 26, 1948, by American Federation of Hosiery Workers (hereinafter called the Union ), the General Counsel of the National Labor Relations Board ( hereinafter called the Board ), by the Regional Director for the Fifth Region ( Baltimore, Maryland ), issued a complaint dated October 22 , 1948, against Burlington Mills Corporation , Randleman Hosiery Plant ( hereinafter called Respondent ), alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the mean- ing of Sections 8 (a) (1) and ( 3), and 2 ( 6) and ( 7) of the National Labor Rela- tions Act, as amended (hereinafter called the Act), 61 Stat. 136, 29 U. S. C. Supp. I, Secs. 141, et seq. Copies of the amended charge and the complaint , accom- panied by a notice of hearing, were duly served upon Respondent and the Union' I The charge and amended charge were against the "Randleman Full -Fashioned Hosiery Mills, Inc." It was stipulated at the hearing by counsel for the General Counsel and for Respondent that the name was an inadvertent mistake, and that the proper name of Re- spondent was that used in the complaint, namely, Burlington Mills Corporation , Randle- man Hosiery Plant . Service of the charge , the amended charge, the complaint, and the notice of hearing were admitted by Respondent. BURLINGTON MILLS CORPORATION 755 With respect to the unfair labor practices, the complaint alleged in substance that Respondent : (1) from on or about August 22, 1947, to the date of the issuance of the complaint, urged, persuaded, and warned its employees by threats of repris- al or promises of benefit against union membership or concerted activities, ques- tioned its employees with respect to their union membership and activities, and threatened them with discharge for union membership or concerted activities; (2) discharged W. W. Mead, its employee, on April 19, 1948, and have since failed and refused to reinstate said W. W. Mead, because of his membership in, and activities on behalf of, the Union; and (3) by the foregoing conduct engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. Respondent's answer admitted certain allegations of the complaint with respect to the nature of its business but denied the alleged unfair labor practices. Pursuant to notice a hearing was held in Greensboro, North Carolina, on November 9 and 10, 1948, before the undersigned, Robert L. Piper, the Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel and Respondent were represented by counsel and the Union by a representative. Full opportunity to be heard, to examine and cross-examine witnesses and to introduce evidence bearing upon the issues was afforded all parties. At the end of the hearing, the parties waived oral argument. Thereafter, pursuant to leave granted to all parties at the hearing, Respondent and the General Counsel filed briefs. Upon the entire record in the case and from my observation of the witnesses, I make the following : FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Delaware corporation, operating as the Randleman Hosiery Plant at Randleman, North Carolina, where it is engaged in the manufacture, sale, and distribution of ladies' hosiery. Its executive offices are located in Greensboro, North Carolina. During the year immediately preceding the issuance of the complaint, Re- spondent purchased raw materials amounting to more than $100,000 in value, of which more than 75 percent was purchased at points outside the State of North Carolina and shipped to the Randleman plant. During the same period, Respondent sold and delivered finished products of a value in excess of $200,000, constituting more than 75 percent of all production at the Randleman plant, to points outside the State of North Carolina. Respondent admits that it is engaged in commerce within the meaning of the Act. H. THE ORGANIZATION INVOLVED The Union is a labor organization admitting to membership employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. Factual background In 1939, Woodrow Wilson Mead began working for Respondent as a knitter at the $qn i Beeman plant. This work consisted of operating a machine that manu- factured full-fashioned hosiery. In the early part of 1942, Mead resigned to accept another position. After a few weeks, at the request of one of Respondent's supervisors, Mead decided to return to Respondent's plant and did so, where he 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD worked continuously thereafter until his discharge on April 19, 1948, with the exception of a short period in service. After the war ended in 1945, Respondent switched its production from rayon yarn to nylon yarn, requiring certain changes in the machinery and resulting in a loss of income to the knitters because of such changes and their inexperience with nylon. The pay of the knitters was based upon the number of stockings produced. Because of these facts, Mead decided to take steps to organize the workers with the objective of improving working conditions and increasing pay. During 1945, a representative of the Union contacted Mead, and he im- mediately became active therein He signed up John Morton, a fellow employee, and together they campaigned among the workers for members. During 1946, Mead was the chairman of the organizing committee of the Union in Randleman and thereafter was the head of the movement there. In February 1946 a repre- sentation election was held which the Union lost by some 20 to 30 votes. Immedi- ately thereafter, Mead resumed active campaigning for more members. Numer- ous union meetings were held, most of them at Mead's residence in Randleman. Another election was held in October 1946 which the Union lost by 5 votes. Mead acted as an observer for the Union at both elections. The campaign for additional members was again actively continued with Mead as the spearhead. Sometime after the first election and before the second Morton was discharged by Respondent. B. Interference, restraint, and coercion The record clearly reveals that Respondent was aware of Mead's activities and leadership in behalf of the Union. The General Counsel introduced in evidence copies of the Randolphian, Randleman's only newspaper, containing articles signed by Mead all supporting union activities and aims. Mead testified he had been writing such articles for the Randolphian every week for 6 months prior to his discharge. Some of these articles consisted of a debate between Mead and an anonymous contributor to the paper, who called himself the "Garmentworker." This contributor took issue with Mead and advanced various arguments against organized activities. Respondent's superintendent, J. B. Huggins, admitted reading some of these articles. Clyde Burrows, Mead's supervisor, frequently discussed these articles with Mead. As previously indi- cated, Mead acted as a union observer at the elections, was chairman of the local, held frequent union meetings at his home, distributed membership cards, and was generally recognized in Randleman as the leader of the Union. In the fall of 1947 and the early part of 1948, during the campaign for more members after the second election, Burrows frequently discussed with Mead the union question, Mead taking the pro and Burrows the Con .2 On at least one occasion, Burrows showed to Mead a newspaper clipping containing a strenu- ous attack on organized labor, and more particularly, labor organizers, and a picture of union representatives who were under trial for communist activities. Mead testified that during another of these conversations, Burrows said to him, "Beau 8 don't you like your job here?" In response, Mead asked, "Yes, why?" Whereupon, Burrows said, "You tell people they need more money. It don't look like you like your job." Mead then told Burrows, "A lot of things could be changed, to look at the way Millis Brown fired John Morton." Burrows replied, "Morton is not here any longer and we will get you if it takes five years." 2 This is undisputed in the record. 8 The record shows that this was Mead's nickname, used by all of his friends and fellow workers. BURLINGTON MILLS CORPORATION 757 Burrows categorically denied making any such statement and testified that he had never heard of Morton.4 However, Charles Cox, another employee, testified that he frequently had heard Mead and Burrows discussing the union question at work, and one day had heard Burrows conclude such a discussion with the statement, ". . . is gone and we will get you if it takes 5 years." a The testimony of Mead, corroborated by Cox, was convincing ; the testimony of Burrows was not. I therefore credit Mead's testimony on this point and find that Respondent threatened to discharge Mead for union activities. Not long after this occurrence, Mead was transferred from the third shift to the second shift. Respondent operated three shifts, the first from 7 a. in. to 3 p. in., the second from 3 p. in. to 11 p. in. and the third from 11 p. in. to 7 a. in. The three shifts were considered desirable in numerical order, the first being the most, and the third the least, desirable because of the hours. It is undisputed in the record that such a transfer was based solely upon seniority and was considered a form of promotion. Mead's supervisor on the second shift was Millis Brown. Shortly after the transfer, Brown censured Mead one day for getting oil for his machine from the company oil room without permission. Mead told Brown that he had not known it was against the Company's rules, whereupon Brown called to Burrows, who happened to be working nearby. Burrows said that he had told Mead while Mead was under his supervision that it was against company rules to get oil from the oil room without permission. Mead thereupon denied ever having been told that, and said to Brown and Burrows, "It looks like you fellows are trying to cook up something because I am strong for the Union." Burrows then said to Brown, "Go ahead, Millis, do what you want to." While Respondent's witnesses testified that every employee had been advised of this rule, four other employees testified they had never heard of such a rule, and that, although there was a padlock on the oil room door, it was never locked. Their testimony was convincing and I find it to be credible. I believe, from the circumstances and statements made, that Mead was justified in concluding that an attempt was being made to fabricate a violation of company regulations in order to justify disciplinary action. I further find that Respondent' s act of threatening disciplinary action was in fact motivated by Mead's union activity, and not by a desire to enforce any alleged rule .0 C. The discriminatory discharge of Mead Early in 1948, Mead learned that it would be necessary to have all of his teeth pulled, requiring a series of visits to his dentist. In order to avoid the loss of working time, Mead wanted to trade shifts with an employee on the third shift (the night shift and the least desirable).' Accordingly, he requested permission from Brown, his supervisor. A fellow employee on the third shift, Cox, had agreed to trade with Mead. The permission was refused. The reasons 4 Burrows first became associated with Respondent in November 1946. Cox testified as follows : "He (Burrows ) said something about someone was gone. I don't know who it was. He further said he would get Beau if it took him five years." General Counsel urges a finding of unfair labor practice based upon certain evidence that an employee twice previously discharged for cause had been refused reemployment because of his sympathy towards the Union. I do not find this employee 's testimony thereon to be credible, and find no substantial evidence to support the finding urged. * The third shift was off from 7 a. m. Saturday morning to 12 p. m . Sunday night, which would allow time for Mead's dental appointments and over 24 hours for recuperation. 838914-50-vol. 82-49 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD given Mead are in dispute. He testified that he was advised by Brown that both supervisors and both employees on each shift must agree, and that he, Brown, would not approve the transfer since this would cause "confusion in the cage." As shown by the record, this had reference to the necessary clerical work of changing time cards, numbers, etc. caused by employees trading shifts. Re- spondent's witnesses strenuously denied that this was the reason for the refusal, and alleged that the transfer was refused because of Mead's failure to "trade work." The record shows that most, if not all, of the employees assisted each other at times by working in pairs on one machine while the other machine remained running alone. This tended to increase the production of each and therefore the pay. It was undisputed that this practice was not an order of Respondent, but was voluntary on the part of the employees. The machines were lined up in a double row facing each other, leaving a space of some 3 or 4 feet between, referred to as an "alley," and the operators in an alley worked more or less back to back. Mead testified, and it was not disputed, that he would trade work across the alley, but would not leave the alley and his machine unwatched. The record shows that others did. During the period in question, Mead was at a machine alone with no machine or worker opposite, and would have had to leave his alley to trade work. He testified that he told Brown he would not do this unless ordered, because he was afraid he would be fired if his machine would "crash" while unattended. These machines cost about $25,000, did "crash," or break-down, with some frequency and the crash damage could be lessened if the operator was present to control the machine. In view of these circumstances and the previously discussed threats made to Mead, his re- luctance to trade work seems reasonable, and I find his reasons for not doing so credible. Respondent claimed that Wade Stout, third shift supervisor, refused to let Mead "trade" to the third shift, because Mead's refusal to trade work would lessen third shift production by some "five to six dozen pairs" a week. Gen- eral Counsel's Exhibit 7, stipulated by counsel for Respondent as prepared from Respondent's own records, shows that the employee on the first shift (and there- for presumably higher in seniority), who operated the same machine as Mead, produced less than Mead, and that the production rate per hour for the em- ployee operating the same machine on the third shift was 1.25 dozen as com- pared to 1.22 dozen for Mead. This apparently slight difference was also offset by the fact that Mead had a much better record for "rejects" (bad stockings re- turned) than the third shift worker 8 Huggins, Respondent's top official at Randleman, admitted that Mead's production differed only in a negligible amount from other employees. It was undisputed that Mead was a superior worker. Witnesses for both General Counsel and Respondent freely admitted that Mead was an excellent knitter. Evidence adduced shows that Respondent's supervisors complimented Mead from time to time on the quality of his work,` and even asked him to pose for a picture for the company magazine as an example of an outstanding em- ployee, in order to "help the morale of the knitting department." 8 Mead testified , and it was not denied , that Brown told him in February 1948, "You have led the second shift for 2 weeks and have the lowest amount of bad work of any of the knitters , and I wish they would all check their work like you do." At the time of Mead's transfer from the third shift to the second, Burrows told Mead that he had enjoyed working with him and that he (Burrows) hoped Mead would continue to do good work. BURLINGTON MILLS CORPORATION 759 In addition, it was established that it was a common practice to trade shifts, and was done frequently and for such slight reasons as going hunting, playing basketball, working on one's own house, going fishing, and attending baseball games and conventions. In view of these admitted facts, I find Respondent's alleged reason for refusing to permit Mead to trade shifts not credible. If a slight differential in production rate were a sufficient reason for refusing per- mission to trade shifts, no two employees could ever trade unless they had identical production rates, because patently one shift would suffer in produc- tion. It is clear from the record that an identical production rate was never the case in the many trades allowed, and, in the nature of things, could rarely, if ever, be. It is undisputed that Mead lost approximately $20 each time he took a day off to visit his dentist, as all employees were working 47 or 48 hours a week and received time and a half for all time over 40 hours. The refusal to permit Mead to trade caused him to take a day off for a series of weeks to have his teeth pulled. I find that this refusal was motivated by Mead's union activities, and unrelated to his failure to trade work outside of his own alley10 After permission to trade shifts was refused, Mead asked Brown if it would jeopardize his job to take time off to have his teeth pulled, and was told it would not. Mead testified that he asked this because he felt "they wanted to fire me," because of the threats made by Burrows. Accordingly, Mead contacted his dentist in February 1948 and advised Brown that the dentist would start pulling his teeth the next Saturday, February 28. He also told Brown he would be off for a series of Saturdays until the work was finished. The next three Saturdays Mead was off, and it is undisputed that he received permission for these days. On March 18, Brown asked Mead if he would be able to work Saturday, March 20, and to telephone Brown after visiting the dentist if he could not work. Previously, no such notice had been required of Mead by Respondent. Mead testified, and I find his testimony credible, that he tried twice to call Brown from Greensboro, but was unable to reach him because the long- distance circuits were busy. It was admitted that Brown knew he had the dental appointment, and further that under Respondent's rules only the super- visor's permission was necessary for absences. On Monday, March 22, Mead was called into the office of the superintendent, Mr. Huggins. Huggins and Brown were present and Mead was criticized for not calling or working. Mead explained what he had done, and after some discus- sion Brown said, "Well, go on back to work and we will iron out your future appointments later." A few minutes later, Brown came up to Mead at his machine and said, "From now on when you are going to be out tell me ahead of time." On April 3 Mead worked. On April 10 he was excused and again visited his dentist. The following Monday, April 12, Mead told Brown, in response to Brown's inquiry as to the status of Mead's dental work, that he had only one tooth and a "sliver" of bone left and would finish up the next Saturday. Brown 10 The complaint does not include discriminatory treatment among the allegations with respect to interference, restraint, and coercion , and General Counsel has made no request for a finding of unfair labor practice on this basis. Therefore, I have not considered my finding on this point determinative as to the issue of independent interference , restraint, and coercion under Section 8 (a) (1) of the Act. N. L. R. B. v. Sands Mfg. Co., 306 U. S. 332, 346; Matter of J. I. Case Co., 71 N. L. R. B. 1145, 1148; Matter of Western Electric Com- pany, Inc, 72 N. L. R. B. 738, 741 ; Matter of Geraldine Novelty Company, Inc , 74 N. L. R. B . 1503, 1539. However, it has definite persuasive value in determining the motivation underlying the discriminatory discharge. 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD admitted all of this conversation except the reference to the next Saturday. On the same day Mead met Huggins in the company commissary and told him he had one more trip to the dentist to have the last tooth pulled . This was admitted in substance by Huggins. Mead said that he had not mentioned to Huggins when he would be off, as this was unnecessary , being a matter for the supervisor, and Huggins' testimony confirmed this. Again on Wednesday, April 14, in the presence of another employee who corroborated this evidence;' Mead told Brown he would be out on Saturday and had only one tooth left to pull and the impression to be made. Brown denied any recollection of this conversa- tion but did not deny the conversation. In resolving this conflict , I find Mead's testimony, corroborated by a third party , that he advised Brown he would be off Saturday, April 17, to be credible'2 Mead did go to the dentist April 17 and had the last tooth removed. On April 19 he was called into Huggins' office, told he had taken off without permission, and fired by Brown. Huggins testified, and it was not disputed, that he left this decision up to Brown. Mead was requested , but refused, to sign a discharge slip stating that he was fired for being absent. Respondent's defense throughout was that Mead was discharged for absence without notification on April 17 and for excessive absenteeism during the course of his employment. The defense with respect to lack of notice concerning the absence of April 17 has already been considered . With respect to the excessive absenteeism , Respondent placed in evidence two exhibits , one listing 9 employees alleged to have been discharged for excessive absenteeism , and the other a record of Mead's absenteeism from 1944 to the date of his discharge. With respect to the list of 9 dischargees , only 1 had any tenure comparable to Mead, and he was fired for being "drunk and unable to report to work." 13 Six of the remaining 8 were in the employ of Respondent only from 3 to 9 months , and the other 2, 11/2, and 2 years , respectively. Respondent's Exhibit 1 showed that Mead was out 32 days in 1944, 25 explained and 7 unexplained , 34 days in 1945, 31 explained and 3 not, 45 days in 1946, 33 explained and 12 not, 23 days in 1947, 20 explained and 3 not, and 9 days in 1948, 7 explained and 2 not. The 2 unexplained days in 1948 were March 20 and April 17, previously discussed herein. In addition, General Counsel's Exhibit 7 shows that 1 of the 7 days in 1948 was a holiday and that all employees were out that day. General Counsel's Exhibit 7 also reveals that several other employees had worse absentee records for 1948 than Mead ( all of whose absences in 1948 have been explained ) and were not discharged. Respondent's officials, under cross-examination, were unable satisfactorily to explain why Mead had not been discharged during 1944, 1945 , 1946 or 1947, when his absences were far greater and many were unexplained. Huggins testified he was not at the Randleman plant in 1944 and 1945, and with respect to 1946 (the worst year by far), "I just don't recall those days and why he was out." With respect to 1947, Huggins said Mead was not discharged because "I had never talked to Mead about his absenteeism ." With respect to 1948, Huggins said, "Mead was certainly given a warning by me and that is the only time I had n Paul Odel Whittaker. 12 An attempt was made to show that these conversations took place at some far removed time. In view of the admitted fact that Mead had only one tooth left at the time of the conversations, manifestly they must have occurred during the week immediately preceding his discharge. 13 See Respondent's Exhibit 2. BURLINGTON MILLS CORPORATION 761 ever warned an employee." (Emphasis supplied.) " Brown, Mead's supervisor, testified that he (Brown) was only a knitter in 1944, that in 1945 he was Mead's supervisor for awhile, but could only remember one absence and could not recall why Mead was not fired then for excessive absenteeism. Yet Respondent's Exhibit 2 shows that Brown fired another employee for absenteeism in 1945 who was only absent six times that year. Brown also testified that he could not remember if any people were ever absent on his present shift. The demeanor and evasiveness of both Huggins and Brown with respect to these questions cast considerable reflection upon the credibility of their stated reasons for discharging Mead. I am convinced, and find, from all of the evidence, that Respondent was motivated by Mead's union activities in discharging him. D. Ultimate findings-interference, restraint, and coercion-discriminatory discharge of Mead The preponderance of the credible evidence in the whole record convinces me, and I so find, that Respondent interfered with, restrained, and coerced its em- ployees in the exercise of rights guaranteed in Section 7 of the Act by threatening discharge for union activities, and by threatening disciplinary action for the violation of rules unknown to its emploees, motivated in fact by the union activi- ties of its employees rather than by a desire to enforce company regulations. I find no substantial, reliable, or probative evidence in support of the allegation that Respondent questioned its employees concerning their membership in and activities on behalf of the Union. I further find that Respondent, by discharging Mead on April 19, 1948, because of his union activities, discriminated against him in regard to his hire and tenure of employment, thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guar- anteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in Section III, above, occurring in con- nection with the operations of Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent discriminated in regard to the hire and tenure of employment of Woodrow Wilson Mead . It will therefore be recom- mended that Respondent offer him immediate and full reinstatement to his for- mer or substantially equivalent position , without prejudice to his seniority or other rights and privileges , and make him whole for any loss of pay he may 14 Respondent's position here appears to be inconsistent. While advancing the fact that Mead had never been warned as the reason he was not discharged for absenteeism in 1946 and 1947, Huggins said he had never warned any other employee , and yet Respondent's Exhibit 2 indicates a number of employees were discharged during that period for absenteeism. 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have suffered by reason of such discrimination, by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of his discriminatory discharge to the date of the offer of reinstatement, less his net earnings during that period.' Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following : CONCLUsIONs OF LAW 1. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Wood- row Wilson Mead, thereby discouraging membership in the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the 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. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. Respondent has not engaged in the unfair labor practice, as alleged in the complaint, of questioning its employees concerning their membership in and activities on behalf of the Union. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, it is recommended that Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in the Union, or any other labor organization of its employees, by discriminatorily discharging any of its employees or by discriminating in any other manner in regard to their hire and tenure of em- ployment or any term or condition of employment ; (b) In any manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection as ,guaranteed in Section 7 of the Act. 2. Take the following affirmative action which, it is found, will effectuate the policies of the Act : (a) Immediately offer to Woodrow Wilson Mead full reinstatement to his former or substantially equivalent position 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 Respondent's discrimination against him, by payment to him of a sum of money equal to the amount which he normally would have earned 'a Counsel for Respondent argue in their brief that Section 10 (c) of the Act prohibits the remedy of reinstatement with back pay if the evidence shows good independent grounds for discharge, even though motivated by anti-union animus. This question has been de- cided to the contrary in N. L. R. B. v. Sandy Hill Iron & Brass Works, 165 F. (2d) 660 4C. A. 2, 1947). BURLINGTON MILLS CORPORATION 763 as wages from the date of his discharge, to the date of Respondent's offer of reinstatement, less his net earnings during said period ; (b) Post at its plant in Randleman, North Carolina, copies of the notice attached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Fifth Region, shall, after being signed by Respondent's representative, be posted by Respondent immediately and main- tained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material ; (c) Notify the Regional Director for the Fifth Region in writing, within ten (10) days from the date of the receipt of this Intermediate Report, what steps Respondent has taken to comply herewith. It is further recommended that, unless on or before ten (10) days from the receipt of this Intermediate Report Respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring Respondent to take the action aforesaid. It is further recommended that the complaint be dismissed insofar as it alleges that Respondent questioned its employees concerning their membership in and activities on behalf of the Union. 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 Regulations, 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 Intermediate 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 in support 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. Immediately upon the filing of such statement of exceptions and/or brief, the party filing the same shall serve a copy thereof upon each of the other parties. Statements 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 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, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 29th day of December 1948. ROBERT L. PIPER., Trial Examiner. 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A 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 discourage membership in AMERICAN FEDERATION OF HOSIERY WORKERS, or any other labor organization of our employees, by discharging or refusing to reinstate any of our employees or by discriminating in any other manner in regard to their hire and tenure of employment, or any term or condition of employment. 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 AMERICAN FEDERATION OF HOSIERY WORKER8, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL immediately offer to Woodrow Wilson Mead full reinstatement to his former or substantially equivalent position without prejudice to any seniority 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. BURLINGTON MILLS CORPORATION, RANDLEMAN $OISERY PLANT, Employer. By ---------------------------------- (Representative) (Title) Dated -------------------- This notice must remain posted sixty (60) days from the date hereof, and must not be altered, defaced, or covered by any other material.