Cedartown Yarn Mills, Inc.

In the Matter of CEDARTOWN YARN MILLS, INC. and TEXTILE WORKERS UNION OF AMERICA, C. I. O. Case No. 10-C-1868.-Decided March 5,1948 Mr. Charles M. Paschal, Jr., for the Board. Messrs. James A. Branch and Frank M. Swift, of Atlanta, Ga., and Messrs. L. V. Andrews and T. S. Ritchey, of Cedartown, Ga., for the respondent. Mr. H. L. Honea, of Esom Hill, Ga., and Mr. Bill Gupton, of Cedar- town, Ga., for the Union. DECISION AND ORDER On April 8, 1947, Trial Examiner James A. Hemingway 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 Inter- Inediate Report attached hereto.' The Trial Examiner also found that the respondent had not unlawfully discharged Jessie Forrister, Early Rogers, Jessie Mullinax, and W. L. Hesler, as alleged in the complaint, and recommended dismissal of the complaint as to them.2 Thereafter, the respondent filed exceptions to the Intermediate Re- port and a supporting brief. Neither the Board's attorney nor the Union filed any exceptions. In view of our decision, as hereinafter set forth, we hereby deny the respondent's request for oral argument. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The 1 Those provisions of Section 8 (1) and 8 (3) of the National Labor Relations Act which the Trial Examiner found were violated, are continued in Section 8 (a) (1) and 8 (a) (3) of the Act, as amended by the Labor Management Relations Act, 1947. 2 Pursuant to the provisions of Section 3 (b) of the Act, as amended, the National Labor Relations Board has delegated its powers in connection with this proceeding to a three-man panel consisting of the undersigned Boaid Members [Houston, Reynolds, and Gray]. Inasmuch as no exceptions have been filed regarding the Trial Examiner's recommenda- tions of dismissal, and in view of the record, we adopt those portions of the Intermediate Report dealing with the cases of Forrister, Rogers, Mullinax, and Hester, and shall dismiss the allegations of the complaint with respect to them. 76 N. L. R. B., No. 90. 571 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and finds merit in the respondent's exceptions. The Trial Examiner found that the respondent discharged Jim Green, William Goddard, L. C. Philpot, and Doyle Powell because of their union membership.3 We do not agree. After the end of the war in August 1945, the respondent instituted, as the Trial Examiner found, a program to improve efficiency in its plant. As part of this program, the respondent discharged not only "excess and less experienced help," as the Trial Examiner found, but also employees found by it to be deficient. The program of eliminating employees, both surplus and for cause, continued at least through Feb- ruary and March 1946, when five of the six alleged discriminatory discharges took place. During February and March 1946, the respondent discharged a number of non-union as well as union employees. Union activities in the plant began in the latter part of January 1946. During Feb- ruary and March 1946, the Union enrolled about 60 percent of the approximately 375 production workers. From February 3 to March 16, 1946, the respondent discharged 9 employees, not including those listed in the complaint. Of the 9, only 2 had signed union cards. Of the 10 listed in the complaint, the Trial Examiner found, as the re- spondent contended, that 2 had voluntarily quit, and that 2 others had not been unlawfully separated from employment. Also, the complaint makes no allegation with respect to 2 discharged employees, Venice Hatfield and Bill Carter, although the record indicates that the respondent had knowledge of their union activities.4 So far as appears, they were lawfully discharged. We consider the four discharges in the light of this background. There is testimony in the record, credited in part by the Trial Examiner, that Green, Goddard, Philpot, and Powell had each engaged in misconduct such as might well have justified their discharge. While we make no finding that such misconduct caused the discharges, we are not convinced by this record, including the testimony as to mis- a In addition, the Trial Examiner found that the respondent discharged Philpot's wife and daughter in conformity with an established company rule requiring discharge of all employee members of a family living in a company house when the head of that family is discharged. The Trial Examiner concluded that the respondent 's conduct in discharging the wife and daughter was unlawful because their discharge was "a direct consequence" of the discrimination against Philpot. In its brief, the respondent challenges the validity of this conclusion in view of the Trial Examiner 's finding that the wife and daughter were not discharged because of their own union activities . We need not and do not pass on this question inasmuch as we are of the opinion , as hereinafter set forth , that Philpot's discharge was not unlawful. * At the time of the hearing, Hatfield was back at work in the plant under circumstances not disclosed in the record. CEDARTOWN YARN MILLS, INC. 573, conduct on the part of the four dismissed employees, that the respond- ent was motivated by anti-union considerations in discharging them; In concluding that the respondent was so motivated, the Trial Examiner relied on testimony, which he viewed in part as uncontra- dicted, that Overseer Smith had made statements to Goddard and his father, who was also employed in the plant, in substance, threatening loss of their jobs unless they stopped "messing with the Union" and ascribing Goddard's discharge to such conduct on his part. However, we view the testimony of Smith, who had himself been discharged by the respondent before the hearing, as tantamount to a denial that he had made any of such statements. In view of the Trial Examiner's failure to consider Smith's denial, we are unable to adopt his credibil- ity finding. The Trial Examiner made no finding that Smith or any other management representative made any other unlawful statement or engaged in any other conduct violative of the Act, apart from the discharges herein involved 5 Furthermore, except for Goddard, none of the employees whom the Trial Examiner found to have been discriminatorily discharged, engaged in any outstanding union activity. Goddard was a union committeeman, but there is no showing that such activity came to the respondent's notice. Besides, there is little or no evidence that the respondent had knowledge of the union membership of any of these four employees. Based on the foregoing, we find that the record does not establish by a preponderance of the evidence that the respondent discharged Green, Goddard, Philpot, or Powell because of their union member- ship or activity. In view of our finding that Philpot's discharge was not unlawful, we further find that the respondent did not violate the Act by discharging Philpot's wife and daughter but that they were dismissed in accordance with a legitimate company rule. Inasmuch as we have not credited the testimony as to Smith's unlawful state- ments, more fully set-forth in the Intermediate Report and referred to above, we hereby reverse the Trial Examiner's finding that the, 6 The Trial Examiner did find that Overseer Wall had reference to Powell's union activity when Wall recommended to his superiors Powell 's discharge for lack of "loyalty." At the hearing Wall was not asked directly to explain what he meant by "loyalty ," but he testified that he made the remark under the following circumstances : after a large amount of improperly wound yarn was discovered , he made an investigation and found that it resulted from Powell's failure to adjust the machinery as instructed ; Wall reported his findings to his superiors and recommended Powell's discharge ; and when they asked why he thought that the best course of action , he-replied, "because loyalty meant something to me." The respondent contends that Wall thereby merely referred to Powell's failure to carry out Wall's instructions with respect to changing the gears of the machinery. Under these circumstances, we cannot say that Wall had reference to Powell 's union activity in accusing him of lacking "loyalty." , 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent interfered with, restrained , or coerced the employees within the meaning of Section 8 (1) of the Act. Accordingly we shall dismiss the complaint in its entirety. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein against Cedartown Yarn Mills, Inc., Cedartown, Georgia, be, and it hereby is, dismissed. INTERMEDIATE REPORT Mr. Charles M. Paschal, Jr., for the Board. Messrs. James A. Branch and Frank M. Swift, of Atlanta, Ga., and Messrs. L. V. Andrews and T. S. Ritchey, of Cedartown, Ga., for the Respondent. Mr. H. L. Honea, of Esom Hill, Ga., and Mr. Bill Gupton, of Cedartown, Ga., for the Union. STATEMENT OF THE CASE Upon an amended charge duly filed on November 14, 1946, by Textile Workers Union of America, CIO, herein called the Union, the National Labor Relations Board, herein called the Board, by the Acting Regional Director for the Tenth Region (Atlanta, Georgia), issued its complaint dated November 19, 1946, against Cedartown Yarn Mills, Inc., Cedartown, Georgia, herein called the Respondent, alleging that the 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 National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, together with notice of hearing thereon, were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance that the Respondent, from on or about February 1, 1946, to the date of the com- plaint, had disparaged and expressed disapproval of the Union, had interrogated its employees concerning their Union affiliation, had urged, persuaded, threatened and warned its employees to refrain from assisting, becoming members of, or remaining members of, the Union ; and that the Respondent had discharged 10 named employees' between February 5, 1946, and October 21, 1946, and after their respective discharges had failed and refused t6 reinstate them, for the reason that they had joined and assisted the Union and engaged in concerted activities with other employees for the purposes of collective bargaining and other mutual aid or protection. The Respondent's answer, dated November 22, 1946, in substance denied the commission of all unfair labor practices! 1 Jessie Forrister, February 5, 1946; Jim Green, February 6, 1946; Early Rogers, Feb- ruary 6, 1946 ; Jessie Mullinax, February 21, 1946; William Goddard, February 26, 1946; L. C. [Calvin] Philpot, March 4, 1946; Genora [Senora] Philpot, March 4, 1946; Maxine Philpot, March 4, 1946; W. L. [William] Heller, March 12, 1946; Doyle Powell, October 21, 1946 2 The answer admitted that "certain of the individuals named" in the complaint had been discharged but averred that certain others had voluntarily quit. At the opening of the hearing Board's counsel moved to have this portion of the answer made more specific. The motion was granted and the Respondent Identified Jessie Forrister, Jessie Mullinax, and W. L. Hesler as those who quit, and the remaining seven as those who were discharged. CEDARTOWN YARN MILLS, INC. 575 Pursuant to notice, a hearing was held at Cedartown, Georgia, on December 10 to 13 inclusive and December 16 and 17, 1946, before the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The Board was repre- sented by counsel, the Respondent was represented by counsel and by its superin- tendent and assistant superintendent, and the Union was represented by an In- ternational Representative and a Subregional Director. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties 3 At the conclusion of the testimony Board's counsel argued orally before the undersigned. The Respondent's counsel stated that rather than argue orally he would file a brief. At the close of the hearing Board's counsel moved to amend the pleadings to conform to the proof. The motion was granted. The Respondent alone availed itself of the opportunity to file a brief with the undersigned. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Georgia corporation having its principal office and place of business at Cedartown, Georgia, where it is engaged in the manufacture, sale, and distribution of cotton yarn and related products. During the year preceding the hearing the Respondent purchased materials, including cotton, of a value in excess of $500,000. More than 66 percent of the materials so purchased was purchased by the Respondent and brought to its Cedartown plant from points outside the State of Georgia. During the same period of time the Respondent manufactured, sold, and distributed cotton yarn of a value in excess of $1,000,000. More than 90 percent of such products sold by the Respondent was delivered to points outside the State of Georgia. The Respondent concedes, and the under- signed finds, that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of the Respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion; the discriminatory discharges 1. Background ; the union organizing campaign During the war the Respondent was obliged to employ a great many inex- perienced employees with the result that more employees than normally were required. Following the termination of hostilities in August 1945, the Respond- ent began a program to return to normal, efficient operation. L. V. Andrews, superintendent of the Mill, discharged two of the overseers and promoted T. S. Ritchey from his job as overseer in the twisting room to the position of assistant superintendent in September 1945. During the last quarter of 1945, the Respond- ent reduced its force by discharging excess and less experienced help. Between 8 A motion for separation and exclusion of witnesses made by Respondent's counsel was granted. 576 DECISIONS' OF: NATIONAL LABOR RELATIONS BOARD August and the end of 1945, 85 employees quit and 44 were discharged.' By the end of January 1946, most of the "spare hands" had gone. The Respondent retained a few extra spinners to fill in when regular employees were - absent. In January 1946, the Union began its organizing campaign at the Respondent's mill. It passed out literature at the gate and gave application cards to certain employees to procure signatures . Superintendent Andrews was aware of this campaign, procured copies of all of the literature distributed,' notified his supe- rior, the mill agent, of the campaign, and, within a month from the start of the campaign, instructed his overseers not to talk about the Union with the employees nor take any action against it, but to run the job and get the work donee The lower levels of supervisors were not given these instructions and apparently were not regarded as having sufficient authority to represent management' When the machines were operating right and required no immediate atten- tion it was customary for the employees to sit or stand around near their jobs and talk. It was also customary for employees who were on the way to the wash room, drinking fountain, or canteen to stop on the way to -chat for a minute or two with an employee working along the way, and they were neither disciplined nor prevented from doing so by the overseers if the employees did not stop to visit too long. After the Union's organizational drive began, Ritchey gave the overseers instructions to keep the employees from congregating and talking so much.8 4111 the early part of 1946 the Respondent had about 375 production employees. " Assistant Superintendent Ritchey would stand near the front gate when union leaflets would be handed out. Ritchey found a union circular hung up on a post in the spinning room. He removed it and made inquiries as to who had done it. When employee Bill Carter at first admitted putting it up, Ritchey told Carter he was going to discharge him for doing so. Then Carter denied he had put it up and Ritchey accepted his denial and did not discharge him at that time. Two or three weeks later Ritchey discharged Carter for allegedly coming to work drunk. The Respondent had, before the union cam- paign, refused permission to certain persons to put up posters. It does not appear that anyone had previously attempted to put up posters without permission or that anyone had ever been discharged for doing so. There was no evidence that employees had been notified that discharge or other penalty would be the result of posting circulars. In view of the evidence that employees were usually not discharged without warnings Ritchey's threat to discharge Carter for posting a union circular appears unusually severe. U The date upon which such instructions were given is not clearly established. There is no evidence that the employees were informed of these instructions. Ritchey testified : "Mr. Andrews told them [the overseers] that we had heard a little news, they had given us some leaflets at the gate, and we had heard about them organizing, their organizing activities at Goodyear, and he cautioned the men not to enter into any discussion or do anything whatsoever to cause any trouble or faction with the union or clash with them any way." Superintendent Andrews and Assistant Superintendent Ritchey are the only ones who have the right to hire employees. Employees may be discharged by Andrews, Ritchey, or any of the overseers Overseers are roughly the equivalent of department foremen. Next below the overseers in scale of supervision is the second hand, roughly the equivalent 'of an assistant foreman During February and March the Respondent had only one or two second hands in the mill. Because the Respondent's' mill was small, it had little need for second hands. The lowest level of supervision is called the section hand The section hand is a leader of a group of employees and he is also a fixer who maintains the machines in operating condition. The section hands have no authority to hire or discharge and their recommendations concerning discharge are not acted upon without independent investigation. Section hands, like the second hands, were not instructed by Andrews regarding the Union. The undersigned finds that they are not supervisory employees within the Board's definition. e Superintendent Andrews testified that there was a rule in the mill against leaving the department and talking or loafing in other departments, toilets, or canteen and that he had given instructions to this effect in about October 1945. This rule appears to have been designed more to prevent people from neglecting their work than to prevent talking as such. CEDARTOWN YARN MILLS, INC.' 577 ' Sam Smith, who had been an overseer with the Respondent,9 testified that he would sometimes have to,go after an employee who stayed away from his work to long, but he would not take any disciplinary action unless it happened too often. Witness Charles Patterson, who quit the Respondent's employ in April 1946, after having served as a fixer under Overseers Edward Ivey and Sam Smith, testified that on about February 7, 1946, Overseer Ivey asked him, "Reckon we have got the Union about busted?" Ivey, who had left the Respondent's employ about the same time Patterson did, denied asking Patterson that question. It is not improbable that Ivey made some comment on the progress of the Union's organization to Patterson," but it seems unlikely that such a question would be asked so early in February while the Union's campaign was still in full swing. For this reason as well as the fact that Ivey appeared to be a truthful witness, the undersigned credits Ivey's denial and concludes that Patterson was mistaken about the words used by Ivey. On about February 5, 1946, according to employee Early Rogers, whose dis- charge will be discussed hereinafter, Overseer Smith came to hftn and said that there was talk going on in the mill and that Rogers had probably heard it. Rogers asked what it was and Smith said that "they" were talking about the Union and the Respondent did not like it. When Rogers said he had not heard anything about it, Smith told him not to be standing around talking and not to go into the alleys to talk." Smith's statement is construed to mean that, if Rogers went about the alleys and talked, the Respondent might infer that he was going around talking in favor of the Union and that the Respondent frowned upon union talk. The new restriction on talking was not limited to talking about the Union, however. While Smith's statement appears to be a straw in the wind, indicating that the Respondent may have been restricting all talking to eliminate union talk, Smith's statement is not found to be in itself a violation of the Act. 2. The discharge of Jim Green Jim Green, 61 years old, had worked at the mill of the Respondent and its predecessor off and on from the time that he was 9 years old. For the last 2 years of his employment he was what is known as a roving hauler. As such it was his duty to procure bobbins of roving from the card room, to lay these up in the spinning room, and to take off the empty bobbins and return them to the card room. Once a day he also had to remove the waste, carrying it through the card room to the picker room. As part of the program to increase efficiency, Ritchey had given orders in the latter part of 1945 that the roving haulers should stay out of the card room as much as possible. For a few weeks after this order was given, the doffers in the card room would push the boxes of roving from the card room out to the spare floor of the spinning room, where the roving haulers would take them and, after laying up the roving and refilling the boxes with empty bobbins, they would push them back through the doors into the card room. This practice was followed until January 1946, when some new machinery was set on the card- room floor in such a way as to make it difficult to push the boxes of roving through Smith was not in the employ of the Respondent at the time of the hearing. 10 Andrews testified that the overseers would comment on the progress of the Union cam- paign occasionally. "Smith was not asked about this incident in the words Rogers used. When asked if he had told Rogers that there was too much union talk, Smith denied having said that. The undersigned credits Rogers' testimony. 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the doors of the spinning room. From the time that the doffers in the card room ceased to push the boxes out into the spinning room aisle, the roving haulers found it necessary to go into the card room for the purpose of getting the boxes of roving. The evidence disclosed Green to be , by nature, easy-going and talkative. When Green would go to the card room and find no box of roving ready to haul to the spinning room, he was wont to sit on a box and engage in conversation with the doffers who had idle time . There was no rule in the mill against employees talking when they had spare time, and it appears to have been a practice through- out the mill without objection from the overseers . As previously stated, the em- ployees were at liberty to go to the canteen (a business privately operated by Superintendent Andrews ) at any time during their shift when their work was caught up. Like other employees , Green took advantage of this privilege. The job of roving hauler allowed more spare time than most of the other jobs in the mill. Consequently, when Green was in the canteen he would frequently step aside to allow the other employees , who were in a hurry, to go ahead of him. During such times Green would engage in conversation with other employees or with supervisors who happened to be present. The evidence indicated that Green frequently would be in the canteen longer than other employees, but there was no evidence that he stayed there longer than 10 minutes at a time, and the undersigned finds that no supervisor told Green that he should be quicker about making his purchases and leaving the canteen's _ Smith, overseer in the spinning room where Green worked , testified that Green kept his job up and that he had only once spoken to Green about his work. That was in connection with dividing the bobbins among the spinners so that all would have some . Superintendent Andrews testified that he caught Green one night talking with four employees in the card room and that he called Green off to the side and talked to him about it Andrews who at first testified that this was 2 or 3 months prior to Green's discharge but afterwards changed this to 2 or 3 weeks prior thereto related no further circumstances of the incident , and it does not appear whether Green was talking to employees who were working or to employees who had spare time. Green testified and the undersigned credits his testimony, that he had had no criticism from any of the supervisors after he found it necessary to go into the card room to get roving following the brief time in which the card room employees pushed the boxes of roving out to the spinning- room floor. Charles Wall , who was hired as overseer of the card room in January 1946, testified that he once said something to Green about his being in the card room and that Green had explained that he had to come in to get the roving. Wall thereafter made no apparent objection to Green's conduct. Wall testified that he did not tell Green to wait in the spinning room and he testified that when the roving was not ready Green would sit on a box and talk to employees who bad idle time.' The undersigned finds that any warning which Andrews gave to Green about being out of the card room was given prior to the time when the new card-room machinery made it impossible to push the boxes of roving out to the spinning room floor.' The undersigned further finds that while the em- ployees were not supposed to leave their department for the purpose of visiting with other employees or, from about February 1946 on, to leave their stations to talk with other employees who were working , it was a general practice in the 12 A sign was posted in the canteen that employees should make their purchases and return to their jobs. Green was unable to read and was not aware that there was such a notice. 13 Other roving haulers likewise sat on boxes in the card room while waiting for roving, and did this after Green' s discharge. CEDARTOWN YARN MILLS, INC. 579 mill, tolerated by overseers, for employees having idle time (a situation frequently occurring) to sit around and chat with other employees likewise having idle time. Green signed an application for membership in the Union on January 28, 1946. Thereafter Green wore a union button in the mill and spoke favorably of the Union when his opinion was asked. On February 6, 1946, while Green was laying up roving, Overseer Smith sent for him and, when Green arrived, told him that he had orders to discharge him. Green asked if he had or had not kept up his job while he had been there. Smith replied that Green had made him as good a hand as he had ever had and that he had no complaint about his work. When Green asked why he was being discharged, Smith said it was for going into the card room. Green protested that it was part of his job to go into the card room, and that all of the roving haulers did that. Smith just expressed his regret. Green then went to Ritchey and asked, "What is this all about?" Ritchey asked what Green was talking about. Green said that Ritchey knew that Smith had dis- charged him. Ritchey said that he did not know anything about his being dis- charged but asked if Smith had not told him to stay out of the card room. Green asked Ritchey whether or not he had made a good hand. Ritchey said that he had. Superintendent Andrews testified he was the one who decided to discharge Green and he gave orders to Ritchey that he be discharged. Ritchey testified that he had passed these orders on to Smith. Smith testified that he would not have discharged Green at the time when he did had it not been for the orders which he received from Ritchey. The Respondent's objection to Green's conduct appears to have been not so much that Green went into the card room to get roving, because the other roving haulers also went there and sat on a box while waiting for roving, but rather that when Green went into the card room, he would talk to card-room employ- ees." There is no evidence that Green tarried in the card room after the roving was ready for him to take to the spinning room. The undersigned has found that Green did not talk to card-room employees who were working but only to those who had idle time. Since Green was obliged to go to the card room to procure roving, the undersigned finds it difficult to understand why Green's con- versation with idle employees in the card-room should be objectionable when it was not objectionable for him to talk to idle employees in the spinning room. It is not as though Green were going into a department where he had no duties in order to gossip with other employees. Prior to the appearance of the Union, the evidence indicates, the Respondent had not been inclined to discharge employees who attended to their duties. That Green's connection with the Union was generally known is reasonably inferrable from the fact that he openly wore a union button. Since Green's discharge was ordered under circumstances where his immediate superior would not have discharged him, since Green's conduct apparently did not interfere either with his own or any other employee's work, and since Green was obliged in the course of his duties to go into the card room, the undersigned regards the reasons given for his discharge as unconvincing. Considering the timing of 14 Although Green was given only one reason for his discharge-that he had gone into the card room-at the hearing the Respondent gave evidence that Green was not discharged for one act but because he had gone into the card room against orders (given in September 1945 ) and because he stayed too long in the canteen . Ritchey testified that he did not- care how well Green kept up his work if he had orders not to sit around in the canteen or walk around and talk in the card room . There is no evidence that Green walked about among employees in the card room. 781902-48-vol. 76-38 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Green's discharge, the weakness of the excuse therefor, all the circumstances related herein, and the entire record in the case, the undersigned concludes and finds that the Respondent discharged Green because of his Union membership and activity, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 3. The discriminatory discharge of William Goddard William Goddard, who had worked for the Respondent in September and Octo- ber 1945 and then quit, was again hired in December 1945 as a doffer in the spinning room. Goddard joined the Union on February 18, 1946. Thereafter, he talked to other employees about the Union and passed out application cards. He also nailed up one union circular in the mill. At about this time, according to Goddard's uncontradicted and credited testimony, Smith told him that he had better stop "messing" with the Union. When Goddard asked why, Smith replied that he might lose his job. On about February 19, 1946, Smith told James Goddard, William's father, who also worked in the mill, according to the latter's credited testimony, that James would have to stop William from giving out union application cards, that sev- eral employees had lost their.jobs because of it. Smith also warned James God- dard that if he had any cards himself he should get rid of them. When James Goddard said that he had two or three which had been given to him, Smith said that James was likely to lose his job. On Monday, February 25, 1946, Goddard did not report for work because he and his parents went to visit his grandmother in a hospital in another town that day. Goddard did not report in advance to Smith that he was going to be absent that day, but his father, James Goddard, testified that he had notified Ritchey that "we" were going to the hospital on the 25th to visit his wife's mother. Ritchey denied that he had been so informed. On February 28, at the beginning of Goddard's shift at 4 p. m., at Ritchey's instruction, Smith called William Goddard to his office and told him that he did not need him any more. Goddard asked Smith why he was being discharged and Smith told him it was for "laying out" [being absent]." Goddard protested that he had had to be away. Smith said that the Respondent had to stop employees from laying out and they had to start on someone. Smith also said that Goddard had been doing some more things that the Respondent did not like. Goddard asked what, and Smith replied, according to Goddard's credited testimony, "You have been messing with the Union a right smart " William Goddard went to his father, James, and together they went to see Ritchey who told them he did not know why William had been discharged and that they should see Smith. Together they went to see Smith. James asked why Smith had fired William. Smith countered by asking where he had been the previous day, and James replied that they had gone to the hospital at Rome, Georgia. Smith said that William could go back there. Smith testified that William Goddard was not a satisfactory employee because he would not stay on the job and would be gone when the frames were stopped for doffing and that many times when Goddard would start the frame operating he would put them on "half pulley," that is, half speed. He also testified that 11 Smith testified that he had never fired anyone for being away without reporting that he was going to be absent and that lie had never received any instructions to discharge employees for that reason . He admitted however that he had received orders from Ritchey to let Goddard go. CEDARTOWN YARN MILLS, INC.' 581 he had found that to be a common practice in October 1945 but that he had put a stop to it. Ritchey testified that Goddard was first employed in September and October 1945, when lie proved not to be diligent about his work and that (after a period of separation) he was again hired in January 1946, upon his promise to do better. Smith testified that he reported Goddard's poor work to Ritchey 3 or 4 weeks before Goddard's discharge 10 However, Smith testified that he might or might not have discharged Goddard when he did if Ritchey had not directed him to do so. If Goddard's poor work was the substantial cause for his discharge, and if Ritchey had ordered him discharged for that reason, Smith would be expected to have told Goddard that that was the reason, but poor work was not given as a reason at all at the time of Goddard's discharge. If all the Respondent's evidence of Goddard's faults be true, the Respondent showed excep- tional tolerance for such faults prior to the time that Goddard joined the Union and became active on its behalf." The undersigned finds that it is immaterial whether James Goddard told Ritchey that either he or his son would be absent on February 25. If James Goddard failed to report his absence in advance, as Ritchey testified, he, at least, was not discharged therefor. If James did report as he testified, Ritchey might reasonably have understood that William would be absent too. Andrews testified that before January 1, 1946, if an employee was absent without notice, the Respondent would talk to him and tell him to send word the next time. William Goddard had not previously been absent without notice and there is no evidence that the Respondent had spoken to him about a penalty for failure to report. The evidence indicated that it was not unusual for employees to stay away without notice. The fact that Ritchey dissembled 18 when James and William came to him to ask why William had been discharged indicates bad faith on Ritchey's part. Ritchey testified that Goddard's absence alone would not have caused his discharge, but that it merely "brought it to a head " However, it was the immediate reason given for the discharge, and although the evidence indicated that during the spring of 1946 the Respondent attempted to reduce the amount of absenteeism, no one had previously been discharged for being out for a day, even without advance notice, and the evidence does not disclose that prior to Goddard's discharge the employees were notified that unreported absence would be cause for discharge. Under all the circumstances, the undersigned concludes that Goddard's union membership and activity was a material factor in his discharge, and the under- 16 Smith was very vague about dates It appeared to the undersigned that some of the complaints about Goddard's work related to the earlier period of Goddard's employment in September and October 1945. For example Smith testified that he had to go after Goddard frequently and would find him mostly in the bathroom and that at that time there was a separate smoking room. According to Andrews' testimony, the smoking room had been done away with in 1945 Some of the things Smith criticized in Goddard appear to have been faults common to doffers. 17 Ritchey testified that Goddard had received an over-payment when he was erroneously credited with the overtime pay due to another employee, that Goddard knew of the over- payment but did not make restitution until he was called to the office, that then Goddard explained that he had already spent the money, and that as a consequence, it was necessary to make deductions from his salary until it was repaid. The final deduction was made about 3 weeks before his discharge. 18 One day James Goddard came into the mill with a union circular. As be was reading it, Ritchey passed. He offered it to Ritchey, telling him lie should read it. Ritchey let the paper drop to the floor and said, according to James Goddard, "I don't fool with those things." Ritchey admitted at the hearing that he had already gone to the gate, procured one of those circulars, and read it. The undersigned concludes from all the evidence that Ritchey was given to dissembling. Ritchey's testimony on controverted issues is not relied Upon herein. 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signed finds that but for his union membership and activity, Goddard would not have been discharged on February 26, 1946. By such discharge and by refus- ing thereafter to reemploy Goddard 10 the Respondent has discouraged member- ship in the Union in violation of Section 8 (3) of the Act and thereby as well as by Smith's statement to William and James Goddard that they might lose their jobs if they did not cease their union activities, the Respondent has inter- fered with, restrained, and coerced its employees in the exercise of the rights. guaranteed in Section 7 of the Act. 4. The discharge of the Philpots Calvin Philpot was employed by the Respondent in the latter part of 1942 as a fixer in the winding department. His wife, Jenora Philpot, was employed by the Respondent in the early part of 1943 as a winder hand. His daughter, Maxine, was employed in May 1945 as a doffer in the twisting room. During a 2-weeks' vacation from the Respondent in about September 1945 Calvin Philpot went to North Carolina to work, and had decided to stay after his vacation ended. Jenora Philpot indicated to Ritchey that Philpot had decided to stay in North Carolina, and Ritchey said that Calvin Philpot had left too soon, that he (Ritchey) had taken over supervision of the whole mill, and asked if she would write to Philpot and get him back by the latter part of the week. She did so and Philpot returned to his former position around the end of September 1945. Ritchey testified that Jenora Philpot had told him she had a telegram from her husband asking that his job be held open, that he had told her he would think it over, and that after he had talked with Philpot's overseer and learned that he had been given 2 weeks off, he told Jenora Philpot that Calvin could return. Throughout his testimony on Philpot, Ritchey appeared to be making a conscious effort to make Philpot look worse than he was. Ritchey's testimony as to the circumstances of Philpot's return is not credited. Calvin Philpot joined the Union on February 4, 1946, Jenora Philpot on February 5, 1946, and Maxine Philpot on February 22, 1946.0 Calvin talked in favor of the Union, solicited for the Union outside the mill, and arranged for some employees to get application cards. For about a week or two before his discharge Calvin Philpot wore a union button to work. At about this time Ritchey noticed a union button on the cap of employee Walter Earwood. Ritchey asked if anyone besides Earwood had worn the button and, when Earwood replied that no one had, Ritchey said that he had heard that Philpot had worn it. Earwood said that Philpot had one on just like it. Ritchey quoted Earwood as saying that a girl just pinned the button on him "and it wasn't nothing." The undersigned infers that Earwood wanted to give Ritchey the impression that he had not joined the Union. On March 4, 1946, before Philpot was due at the mill, Ritchey sent for him. When Philpot arrived, Ritchey told him that he was discharging him because he was not getting production. Ritchey also told Philpot that he was discharging Jenora and Maxine Philpot also because it was a rule of the mill to discharge all members of the family when they discharged a man who was renting a company house. Philpot asked for some other job, but Ritchey told him he did not have any. Ritchey also told Philpot that he understood Philpot had told some of the 10 Some time subsequent to his discharge Goddard went to the employment office where he received a card to apply to the Respondent 's mill, being told that the mill needed doffers, but when he got there, Ritchey told him that they did not need any. 20 Maxine testified that she had joined the Union at the same time as her mother and father, but her application card showed February 22, 1946, as the date of her signing. CEDARTOWN YARN MILLS, INC. 583 employees that he did not "give a damn" who knew what he had done. Philpot told Ritchey that he had spoken those words to one man. Philpot explained, when testifying, that he had used those words in talking to Walter Earwood on one occasion when he had solicited Earwood for membership in the Union. On that occasion he had showed Earwood his union button and told him that when he got to be a member of the Union and was wearing one of those buttons he would be getting somewhere. 'Earwood had told him that he had better do away with the button or keep it in his pocket because it would get him in trouble. Ritchey gave Philpot checks for his, his wife's, and his daughter's pay. None of them was thereafter reemployed. The Respondent adduced evidence to show that production by the second shift in the winding department was much lower than that of the first shift, that the second shift had more badly wound yarn, and that about the time of Philpot's discharge when the Respondent was remodeling, Alvin Adams, second hand on the first shift in the winding room, came across 4,000 pounds of badly wound yarn which had been pushed aside in the packing room, of which most had been originally wound on the second shift. To justify placing the entire blame upon Philpot, the Respondent adduced evidence to show that Philpot, after his return from North Carolina, had at some time been made second hand, in charge of the entire second shift in the winding room. Philpot testified that before he went to North Carolina he was making 55 cents per hour, and that when he returned to the Respondent's mill Ritchey gave him an increase to 65 cents per hour.21 Ritchey testified that he had notified Walter Earwood, who was the fixer on the Abbott winders on the second shift, that Philpot was Earwood' s boss. Philpot testified that he came back from North Carolina to the same position he had prior to his leaving and that he had never been informed that he had been promoted to the position of second hand. Before he left for North Carolina, Philpot had been the fixer on the small winders (Foster and Universal winders) on the second shift. He was not acquainted with the Abbott winders, on which Earwood was the fixer, and this was known to Ritchey. Superintendent Andrews testified that Philpot had charge of fixing the Foster and Universal winders but that the fixing of the Abbott winders was under his supervision. Philpot made no effort to supervise Walter Earwood, who was the fixer on the Abbott winders. The undersigned credits Philpot's testimony that he had not been made second hand. The Respondent offered comparative production figures for the first and second shift for the first 9 weeks of 1946. These figures show that production on the second shift ran considerably behind the production on the first shift. In the 9- week period the first shift produced 1,078,868 pounds as against 990,465 pounds for the second shift. The Abbott winders, high-speed winders, produced the greater proportion of the total. A comparison of the production of the first and second shift for the first 9 weeks of the small winders shows that the first shift produced 330,108 pounds while the second shift produced 258,225 pounds. No figures were furnished to show a comparison in production of the first and second shift for the period either preceding or following the first 9 weeks in 1946. 22 Nor 21 Branson Howard, the fixer on the first shift in the winding department in early March, testified that his rate of pay was 65 cents per hour as a fixer. ' 22 While the small winders on the second shift produced consistently less than those on the first shift, the weekly differential fluctuated considerably During the first week the second shift was more than 10,000 pounds behind ; during the second more than 6,600: during the third more than 12,000 ; during the fourth more than 4 ,600 , during the fifth more than 6 ,700 ; during the sixth more than 11,000 ; during the seventh more than 9,000 ; during the eighth more than 11,000 ; and during the ninth more than 1,800. 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was there any evidence that the size of yarn being wound was the same for both shifts 23 Ritchey testified that badly wound yarn was frequently rewound on an extra machine whenever there was yarn they thought they could save, usually on the first shift. It does not appear how rewound yarn affects the production records. No records were offered to show comparative figures of man-hours worked on the first and second shifts.24 Under the circumstances the undersigned finds that the evidence of Philpot's alleged inefficiency is inconclusive. For all that appears, Philpot may have improved production over what it had been be-, fore he returned from North Carolina. The evidence concerning bad winding indicated that almost all the badly wound yarn carne from the Abbott winders and that it would have been Ear- wood's duty to rewind it. The fact that Ritchey so persistently sought to place blame primarily on Philpot for the badly wound yarn and especially for the alleged concealment of the 4,000 pounds of badly wound yarn, which Ritchey, himself, testified came from the Abbott winders, and which Earwood, therefore, would have been more likely to know about than Philpot, and which, Ritchey conceded, could have been put where it was by other persons than Philpot," in- dicated to the undersigned a degree of malice out of keeping with an honest appraisal of a subordinate's services. Alvin Adams, the man who found the accumulated yarn, testified merely that it was found when the Respondent was remodeling in March. Ritchey testified that the accumulated yarn had been discovered on the Saturday before Philpot's discharge and not when they were remodeling,2T that he had mentioned it to Philpot when he discharged him, and that Philpot had denied any connection with it. Philpot testified that nothing was said to him about badly wound yarn at the time of his discharge .28 The 23 The finer yarns would weigh less than the coarser. 24 Ritchey testified that Philpot had the same number of employees on the second shift as the first shift had, that all of the good hands were not on the first shift, and that absenteeism had been about the same on both shifts. Alvin Adams, who had been first- shift second hand in March 1946, and who was called by the Respondent, testified that there was more absenteeism on the second and third shift than there was on the first shift Absenteeism alone could account for much of the production difference. 22 See N. L R B. v Link Belt Co , 311 U S. 584 20 Ritchey testified that he did not ask Philpot if he had put the badly wound yarn in back of the packing cases where it was found 21 The evidence indicated that badly wound yarn of all shifts was set aside in a crate and every so often the salvageable yarn would be rewound, not necessarily on the shift on which it was originally wound. When yarn was badly wound, it would be backwound unless it was too bad. Then it would have to be cut. Ritchey testified that the badly wound yarn is customarily left in the packing room and occasionally they rewind it and that Adams discovered the 4,000 pounds of yarn while he was looking for yarn to rewind. The undersigned concludes from assembled pieces of testimony that the section hand in charge of the Abbott winders for each shift would take out of the packing case where it had been thrown by the twisting department the yarn wound on his shift if it could be backwound, but that, if it was so bad that it had to be cut, it was allowed to accumulate until someone was doing salvage work, and this might be on any shift regardless of when the salvageable yarn had been wound originally. The 4,000 pounds of the yarn found by Adams was apparently part of such accumulation. 2i The evidence indicates that Philpot was not individually criticized for badly wound yarn prior to his discharge either, that the small winders, as distinguished from the Abbott winders, made little badly wound yarn, and that it was only yarn from the Abbott winders that was marked to denote the shift it had been made on, Ritkhey testified that at the time he discharged Philpot be told him that he had spoken to him many times and that Philpot was always just about to take care of things but never did get around to it. Ritchey gave no testimony as to having in fact previously criticized Philpot for low production. Philpot denied that there had been any criticism of the work on the second shift. The undersigned finds from all the evidence that Philpot's work had not been adversely criticized before the day of his discharge. Since there had been CEDARTOWN YARN MILLS) INC . 585 undersigned was impressed with Philpot's sincerity, credits his testimony, and concludes and finds that the badly wound yarn did not enter into Philpot's dis- charge but was something thought up afterwards by the Respondent. Ritchey and Andrews testified that at a time when Jenora Philpot was work- ing on Calvin's shift, the latter had favored her by providing her with bigger bobbins. The bobbins are distributed among the winder hands by the yarn hauler. Ritchey testified that the yarn hauler complained that the winder hands "fussed" at him about giving Mrs. Philpot the best yarn and that Philpot would get after him if he did not do so. The yarn hauler did not testify'0 Jenora Philpot testified that at some time while Darby was still overseer (Darby was discharged shortly after Ritchey's promotion in September 1945) she had been absent for about 10 days because of illness of her daughter and herself, and that while she was away Darby gave her job to someone else. When she returned she was transferred to the third shift. If there was anything to the report of the yarn hauler, which the undersigned doubts, it did not deter Ritchey from offering Philpot his old job to bring him back from North Carolina. The undersigned finds that such complaint, if it ever was made, did not exist for more than 5 months before Philpot's discharge and that it did not constitute a reason for Philpot's discharge. The undersigned deduces from all the evidence that the Respondent was engaged in a plan to eliminate union advocates, especially those who appeared to be active or who appeared to have influence with the employees. From Ritchey's statements to Earwood and to Philpot, himself, at the time of his dis- charge, Ritchey is disclosed to have been aware of Philpot's advocacy of the Union. In view of this, the weakness of the Respondent's case on the reasons for Philpot's discharge, and on all the evidence and his observation of the witnesses, the undersigned concludes and finds that the Respondent discharged Calvin Philpot on March 4, 1946, because of his union membership and activity, thereby interfering with, restraining, and coercing the employees in the exer- cise of the rights guaranteed in Section 7 of the Act. While the undersigned is convinced that the Respondent did have a rule that where a family occupies a company house and the head of the family is dis- charged the other members of the family working for.the Respondent are also discharged, and while there is no convincing evidence that Jenora and Maxine Philpot were discharged because of their own union membership or activity, the discharge of Jenora and Maxine was, nevertheless, a direct consequence of the discrimination against Calvin Philpot. Thus, the discharge of Jenora and Maxine, as well as that of Calvin, was a violation of Section 8 (1) and (3) of the Act ao 5. The discharge of Doyle Powell Doyle Powell was first employed at the mill which is now operated by the Respondent when he was about 18 years old. He worked for about 8 years badly wound yarn in September , October, and November 1945, it is significant that the Respondent found it to be cause for Philpot's discharge only after he had joined the Union. See New York Handkerchief Mfg Co. v. N. L R. B., 114 F (2d) 144. 20 The discrepancies between the testimony of Andrews and Ritchey on the one hand and various employees on the other as to statements which the latter had made to one of the former leads the undersigned to give little weight to the evidence of Philpot's favoritism for his wife In a number of instances, Andrews testified as of his own knowledge, to facts of which he had heard through others. Ritchey's testimony regarding Philpot was so patently a conscious effort to make out a case on Philpot as to inspire little credence. 30 See Matter of Capital City Candy Co , 71 N. L. R. B. 447, where it was said : "Inasmuch as the respondents ' objective was violative of the Act , it is immaterial that, in carrying 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD until he was inducted into military service in August 1942 . Following his dis- charge from military service, Powell returned to the employ of the Respondent in the latter part of November 1945. Before he was inducted into military serv- ice, Powell had run speeders in the card room. Upon his return , his overseer, Tracy, told him that he would make him a fixer. Powell told Tracy that he would rather have his old job back. Tracy told Powell that he would teach him and that he should act as a fixer for a few weeks until he could get someone else on that job Tracy left the employ of the Respondent about the end of 1945 and in January 1946 Charlie Wall became the overseer of the card room. A short time after he became overseer , not knowing that Powell was a learner, Wall noticed that Powell was weak as a fixer and so told Superintendent Andrews. Andrews told Wall that Powell was a good boy and that he should help him or get someone else to help him. Wall did not, himself, help Powell, but he frequently called in experienced fixers to help him. Powell signed an application card for membership in the Union on March 13, 1946, but was not active at that time . During the summer of 1946 there was little union activity. In October 1946, when the Union started a new organiza- tional drive at the mill, Powell signed a new application card and became active. Ile was a committeeman, he spent considerable time at the union offices, which were about 50 to 75 yards from the mill , and he carried a union book in his tool box but did not actively solicit in the mill On the day of an election at the local Goodyear plant, Andrews and Ritchey saw Powell at the union office and waved to him. Two or three times a week , when requested by Ritchey or Wall, Powell would work two shifts . He once worked 24 hours continuously . During the year 1946 prior to his discharge , Powell worked an average of almost 55 hours a week. During 14 of the weeks in that period, Powell worked 60 or more hours . Because the Respondent was short of certain kinds of help at this time , Powell on occasions had run his fixing job and had also run frames as a frame hand on the same shift. It was Powell's custom to give the employees in his section a great deal more assistance than fixers customarily gave. The evidence is con- vincing that Powell kept up his fixing job and did all that was expected of a fixer of his experience. Only when there was a heavy fixing job which Powell had not previously experienced , did he need assistance. The Respondent sought to prove that Powell needed a great deal of assistance from two experienced fixers and that he needed such help just as much immediately prior to his discharge as he did in the early part of 1946 . The undersigned finds that this is gross exaggeration. Powell testified , and the undersigned credits his testimony, that he requested assistance only on some new kind of job which he did not under- stand and that frequently Overseer Wall would call in one of the other fixers when he had not asked for help. The Respondent sought to place blame on Powell by testimony that one of the experienced fixers who was frequently called in by Wall to assist Powell had complained that he ought to be paid extra for the additional work he did. That fixer, Walter Bailey, called by the Respondent, did testify that he had told Ritchey that if he had to do the fixing in Wall's department he ought to get more money. it out, some of the victims of the respondents' discrimination may not have been union members Discrimination in regard to the hire or tenure of employment of a group of employees , including non-union members of the group , tends to discourage union member- ship and activities no less than discrimination directed against union members alone. Non-union victims of discrimination are, in such case , entitled to the same relief under the Act as are union members." CEDARTOWN YARN MILLS, INC. 587 On cross-examination, Bailey testified that Powell did his job all right, that lie had no complaint about Powell, that on one occasion when Wall called him in, the job was one which Powell could have fixed himself and there was no need for him to be called. The evidence indicates that Wall would frequently be in a hurry for a repair job, and that he would call in another fixer because two could do the work faster than one. Overseer Wall, himself, testified that if there was a break-down on the first shift which had not been fixed, Powell would fix it unless it was a heavy job. Some of the Respondent's witnesses testified to the length of time that it took a fixer to become accomplished. Their estimates ranged from 6 months to more than a year." Wall testified that Powell could set bobbin gears, take out tight spindles, and change the tension, and that he was good at such things but that he (lid not understand the handling of an engine or heavy part of the gear or the fitting of a new jack shaft. However, Wall testified that a fixer would get experience faster if such a heavy job occurred more often, but that break-downs requiring such repairs hardly ever happened or would not happen more than once a year " Twice Powell requested to be transferred back to his old job as frame hand, once about July and once about September 1946. Wall told him that he would rather that he stayed on the fixing job and that he was doing all right. The undersigned concludes that Wall believed Powell to be making satisfactory progress at those times. Two weeks prior to Powell's discharge on October 21, 1946, the fixer on the first shift went to the hospital, and for the succeeding 2 weeks Powell acted as fixer on both the first and second shifts On Monday, October 21, 1946, Powell was called in to Wall's office, where Wall, in the presence of Bailey as a witness, told Powell that the Respondent would have to let him go, that he hated to do it, that Powell had been a good hand. Wall then read aloud to Powell and Bailey, and then delivered to Powell, a previously prepared typewritten statement," which read as follows : CEDARTOWN YARN MILLS, INC., Date: October 21, 1946. It has been necessary to discuss the following with Mr. Doyle Powell : After trying you for ten months on section you are practically no further advanced than you were at beginning. You have made no progress as a fixer, constantly having to call in help on almost every job. This has cost the Company lost production and added expense. You have failed to develop ai Bailey, a fixer with 6 years' experience, testified that it took him a year or longer to become a fixer. Ritchey testified that it would take years to know all about fixing but that in 6 months a fixer should be able to handle his department with very little help, but that even the best of fixers have to have a little assistance at times. Wall testified that he had been a fixer, that he had been at it all his life and that there were some things he had not learned yet. as Wall testified that Powell showed no inclination to learn , and that when he would call Bailey in to help Powell, Powell would go to the boiler room and smoke . Bailey testified that only once or twice had Powell gone off to smoke. It does not appear whether on those occasions the work was such that Powell 's assistance was necessary or that he could have learned anything by remaining . The undersigned received the distinct impression that Wall, Ritchey, and Andrews were consciously weighing the evidence against Powell and therefore credits their testimony about Powell only to the extent their testimony was corroborated by credited witnesses. sa This was not a customary practice Andrews testified that it was done in this instance because Powell was a veteran who was being discharged in less than a year after his return. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD leadership among your employees working under you. The climax was reached last week when you changed a frame from one hank roving to an- other and let doffer put on wrong color bobbin, and had this not been detected by overseer, would have caused serious trouble in spinning room. On the same day, all four of your frame doffers were sitting down eating their lunch with frames standing to be doffed and it was necessary for overseer to ask them not to all stop at once but rather they must eat one at a time. No later than Friday of last week it was necessary to call in help for you. We feel that it is for the best of all concerned that you sever your connec- tions at once. (Signed) C. B. WALL, Overseer. Witness. Following the reading of this statement, Wall had Bailey inscribe his mark after the word "witness." Powell then went to Ritchey and asked him to put him on a set of speeders [as a frame hand]. Ritchey said that Powell would not be satisfied on them. Powell said that he would, but Ritchey said that he did not like the idea and, besides, Powell had been discharged and he would not put him back in "over the overseer." Powell thereupon returned to Wall and asked him to put him on a set of speeders. When Powell said that there were three sets of speeders for which Wall had no frame hand, Wall told Powell that it was against the Re- spondent's rule to demote a man after he was fired. Powell later went to An- drews, told him that he had been discharged, and asked if he could have another job. Andrews merely said that he would think about it. Following Powell's discharge, the Respondent gave Powell's former job to a man who had done no fixing but who was started as a learner. The written statement which Wall had read to Powell at the time of his dis- charge had been prepared by Superintendent Andrews for Wall's signature. It will be noticed that four principal types of criticism were leveled at Powell in this writing : (1) Failure to make progress as a fixer ; (2) failure to develop leadership among employees working under him; (3) changing frame from one hank roving to another and letting doffer put on wrong colored bobbins ; (4) al- lowing four doffers to eat their lunch together while frames were standing to be doffed. The undersigned has reviewed all the evidence regarding these charges and makes the following observations and conclusions. After the first comment which Wall had made to Andrews about Powell, within the week or two after Wall had come to the Respondent and when Wall did not know that Powell was a beginner, he seems to have found no serious fault with him. If Powell had not been making satisfactory progress, Wall would not have told him in September that he did not want him to return to the job of running speeders and that he was doing all right as a fixer. The evidence that experi- enced fixers were called in to assist Powell does not convince the undersigned that Powell was not making progress. Ritchey testified that even the best of fixers sometimes had to have help and Wall indicated that he would sometimes call in help when he was in a hurry or when more than one fixer would be re- quired to do the job. For example, Wall testified that when a frame burns up, it is customary to get all the fixers to work on the job. On the Friday prior to Powell's discharge one machine had stripped its gears. This was a job which Powell had never seen fixed before, but he' fixed it with the assistance of another employee who was not a fixer. CEDARTOWN YARN MILLS, INC. 589 The undersigned finds no convincing evidence that Powell failed to develop leadership among the employees working under him. The worst that could be said on this score is that Powell did a great deal more than was required of a fixer by way of assisting the employees working under him instead of driving the employees to do those things." A number of the employees who had worked under Powell testified, commending Powell's leadership and crediting him with keeping the machines in good condition. The undersigned finds that Powell was getting the cooperation of other employees and that he was not neglecting his ordinary duties. Evidence concerning the third criticism was conflicting in some respects, although it is not conflicting that some such incident did occur. When it was ,desired to change the size of the hank roving, the overseer would tell the fixer the number of the gear to change to and would also tell him what colored bobbins to use for the new size of roving. Ritchey testified that on the Thursday before Powell was discharged, the boss spinner told him that he was out of number 350 hank roving, that he (Ritchey) went to Wall, and directed him to change one machine from a number 270 to a number 350 hank roving. The result of such a change would be to make a finer yarn. Wall and Ritchey both testified that Wall called Powell into his room and told him to change the frame from number 270 to number 350 hank roving. Powell testified that he had been given such instructions 2 or 3 weeks before his discharge, and that Wall had given him not only the number of the hank roving but also the gear number which he was to change to3" Powell also testi- fied that he changed the gear and directed the doffers to put on black head bobbins instead of the green head bobbins which were already on the specific machine which he had been directed to change. Powell further testified that he heard no more of it until the week before his discharge. Ritchey testified that, on the next day after he had directed the change to be made, hard ends began to show up in the spinning room yarn, that after he had checked the humidity condition and found it all right, he took a few bobbins of roving to Wall and asked him what was the matter with the roving, that Wall inspected the roving and commented that it was a little tough, and that, after that, Ritchey went to get the roving sizer to take the size of roving from each ,of the speeders, that, after the size girl had made a test, she located a frame with black head bobbins on it but with number 270 instead of number 350 hank roving, that he (Ritchey) told Wall to find out how this had happened, and that Wall later reported to him that the frame was the one that he had given Powell orders to change on Thursday night. Ritchey and Wall testified that the trouble resulted from Powell's failure to change the gear as instructed. Wall testified that he then suggested Powell's discharge, "because loyalty meant something to me." a" Wall and Powell both testified that after the discovery that wrong bobbins were on one of the machines, which both placed in the last week of Powell's 31 Powell testified that he assisted other employees in order to get production. The ,Respondent conceded that it would be nice to have a fixer do such extra work if it did not ,interfere with his job of keeping the machines in condition. as The undersigned found indications in the record that some of the Respondent's wit- nesses fixed dates of occurrences to come closer to the dates of discharges than was prob- ably the fact. , The-undersigned credits Powell 's testimony as to the time the order was given "e Wall was not asked to explain what he meant by "loyalty " - as applied to Powell The instances of Powell's carelessness or incompetence to which Wall testified do not establish disloyalty. 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employ, Wall directed Powell to change the bobbins on that machine from black head to green head, leaving the gear as it was. The undersigned regards this as a very peculiar circumstance. The result of such a change would be to con- tinue making number 270 hank roving, the coarser yarn. Yet only the day before, if Ritchey were believed, he had been told that the spinning room was short of number 350 hank roving and so had ordered the change over to furnish more of the latter. Since it had not yet been supplied (if the black head bobbins had, as a result of a failure to change the gear, been carrying number 270 hank roving), the spinning room would still be short a number 350 hank roving. This fact suggests that the particular machine in question was not the one on which Powell had been ordered to change the gear, that it had never been intended to have black head bobbins, and that the doffers or the roving hauler on either the first or second shift had mixed the bobbins so that the wrong colored bobbins got on the machine by mistake There is evidence that both roving haulers and doffers had made such mistakes.37 It is significant that in the written statement which Andrews composed for Powell at the time of his dis- charge, the latter was criticized for letting the doffers put on the wrong colored bobbins rather than for failing to change the gear, although Andrews knew from the report made to him, according to his testimony, that Powell had failed to change the gear. Powell apparently assumed that, because he had changed the gear in accordance with the only instruction Wall had given him, 2 or 3 weeks before, the trouble must have been caused by Wall's giving him the wrong number for the gear. While this is also a possible explanation, the undersigned believes that, if Powell had either failed to change the gear or had put in the wrong one, Wall would, upon discovery of the trouble, have ordered the gear changed, rather than the bobbins, in order to provide the needed number 350 hank roving. Powell im- pressed the undersigned as an honest and conscientious witness and credits his testimony that he did make the change of gear as directed by Wall Even if the mix-up had been occasioned solely by the doffers' putting on the wrong colored bobbins, some degree of blame would have attached to Powell for failing to detect the wrong colored bobbins. However, unless the fixer hap- pened to be watching the doffers at the time they were changing the bobbins, it is unlikely that he would be aware of the error, and certainly much less likely to notice it than the doffers. Evidence in the record indicates that the Respondent normally penalized the employee who was primarily to blame for doing the wrong thing The evidence does not disclose whether either a roving hauler or a doffer was penalized on this occasion. The fourth cause for complaint mentioned in the statement given to Powell upon his discharge-that all four of his frame doffers were sitting down eating their lunch while frames were standing to be doffed, on the Thursday before Powell's discharge-had some factual basis 8s But Wall was acquainted with the doffers' practice of eating all at the same time and he had up to this time not 81 Ritchey testified that he had discharged a roving hauler who had mixed up some bob- bins in September 1946. One of the doffers testified that, since Powell's discharge, the doffers had put on the wrong bobbins and run the machine but had discovered their own error and corrected it. as One doffer conceded to Wall that there might have been one frame that stopped. There is no specified time for the doffers to eat. When their work is caught up, they procure a snack from the canteen and sit down near their machines to eat, never taking more than about 10 minutes . The doffers testified that if a frame stopped running while they were eating two of them would get up and doff it. CEDARTOWN YARN MILLS, INC. 591 found fault with it. To the undersigned it appears that, had Wall not been looking for some fault to find with Powell, the incident would have been regarded as too trivial to receive much attention. The undersigned is not convinced that there was a rule against demoting a man who was found unsatisfactory on the job he had been doing. The testimony of Andrews, Ritchey, and Sam Smith was conflicting on the existence of such a rule. Ritchey testified that the rule went into effect "sometime in 1946." Ritchey testified that the Respondent had had some little annoyance with employees Charlie Croney and Beuford Smith, when Overseer Perkins (discharged in September 1945) had permitted Beuford Smith to change from fixing to doffing, and that Croney had been asking to be put on doffing, that he and Andrews had decided to "put our thumb on it and stop it," and that he had told Croney he was not going to put him on doffing. Andrews testified that such a rule was adopted after an unsatisfactory experience with the demotion of two fixers named Beuford Smith and Alexander. He testified that Smith is still employed but that Alexander was discharged because he "got to messing with the frames too much." From the foregoing it appears that the Respondent had no cause for adopting a rule against demotion from its experience with Beuford Smith, and the refusal to change Croney from the fixing job to another job appears to be an individual instance of refusal for which no reasonable basis was shown to exist. It is reasonably inferrible that the refusal to change Croney was based on the difficulty of getting experienced fixers. Sam Smith testified that Alexander was not a fixer but was a doffer who was temporarily used as a fixer while the regular fixer was absent and that Alexander was not discharged but quit. He further testified that the Respondent never discharged anyone if he could not do a particular kind of work but that the Respondent always tried to find something for him to do ; that he (Smith) was never told not to demote anyone who could not do the job he was on ; and that all the jobs paid about the same except a sweeping job. Sam Smith also testified that Beuford Smith was a fixer when he (Sam Smith) became an over- seer of the spinning room, that Beuford Smith wanted to doff, that he was a good fixer, and that he (Sam Smith) wanted him to stay on that job but that Beuford Smith did not want to be a fixer, that Ritchey finally consented to Beuford Smith's becoming a doffer, that thereafter he made a good doffer, and that his knowledge of fixing did not make him a poor doffer. Andrews had testified that Alexander was a fixer who had been demoted to doffing and that "he got to mess- ing with the frame too much" and that he was discharged. The undersigned found that Andrews had a tendency to testify to matters as fact although he had no first-hand information thereon. The undersigned therefore accepts Smith's explanation of the Alexander and Beuford Smith cases as the correct one. The evidence indicated that fixers were not plentiful and that if a man showed promise of becoming a good fixer, the Respondent was reluctant to let him give up that job for another. If Powell had not shown promise of becoming a good fixer, the undersigned is convinced that the Respondent would have let him change to the job of frame hand, when Powell had requested it during the sum- mer of 1946, inasmuch as there was a shortage of such labor. It will be remem- bered that because of such shortage of help Powell sometimes had to run frames and fix on the same shift. Ritchey's excuse that he would not put Powell back "over the overseer," which the undersigned understands to mean that he would not compel Wall to take Powell back under him after Wall had recommended his discharge, seems weak inasmuch as Wall claimed merely that Powell was in- competent as a fixer. It seems to have been conceded that in other respects 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Powell was a very desirable employee 89 Andrews testified that there was only- one other man in the mill who worked as much overtime as Powell did. It is inconceivable that the Respondent would request an incompetent worker to do so• much overtime work. The fact that the majority of the discharges herein related occurred within a period from a few days to a few weeks after the occurrence of some incident which would have been sufficient to have aroused the-Respondent 's suspicion, that the employee was active on behalf of the Union, taken in conjunction with. the other circumstances indicating a rather arbitrary dismissal of good employees for slight cause, suggests that the Respondent was silently observing the em- ployees to learn who was active on behalf of the Union,' and that, when it discovered someone who appeared to be active , it would look for some cause for discharging that employee, either by finding some fault with the past record of the employee, or by waiting until the employee deviated in some respect from, perfection. This appears particularly to be true in the case of Powell. The undersigned finds that the reasons given by the Respondent for Powell's discharge are exaggerated and that on all the evidence they lack conviction. But even assuming that the Respondent is accustomed to discharging hard- working and earnest employees for slight cause, the Respondent's excuse for failure to give Powell other employment is wholly unconvincing. Wall was the, first to tell Powell that there was a rule against demotion. This was not mentioned by Ritchey or Andrews to Powell as a reason for not giving him other work. Had there been such a rule the undersigned is convinced that Ritchey or Andrews would have told Powell so. The rule was unknown to Smith, and the latter testified that, if a man could not run one job, it was the Respondent's practice to find other work for him. Andrews admitted that he had told people- that Powell was a good employee, although he testified that that did not neces- sarily mean that a good employee was an efficient one But an inefficient employee would hardly have been asked to fix and run frames on the same. shift or to double over on other shifts. A refusal to give an employee such as Powell a job as frame hand convinces the undersigned that the Respondent wanted to get rid of Powell for no reason explained by the Respondent. The evidence convinces the undersigned that Powell's union activities in October 1946 were known to the Respondent . Powell was spending a great deal of time at the union office near the plant, and Andrews had seen him there. Wall's recommendation of Powell's discharge "because loyalty meant something" to him (a phrase that has no relation to efficiency), considered in the light of the other evidence, is found by the undersigned to mean that Wall considered Powell's work on behalf of the Union to be incompatible with loyalty to him. On all the evidence the undersigned concludes and finds that the Respondent discharged Powell and failed and refused to employ him in any other capacity because of his union membership and activities, thereby interfering with, restraining, and 39 In response to the question of Respondent's counsel as to whether Powell's being a veteran had anything to do with the fact that he had put in writing the reason for Powell's discharge, Andrews answered. "Well, we realized that Doyle had worked regular, and that he had made a very good employee except he just hadn 't learned to fix, and I don't think he ever would." 40 That the Respondent was aware of the identity of union members is indicated by Ritchey' s comments on union buttons . Andrews testified that in about April 1946 the overseers would remark that "it didn't look like they [the Union] would get in, but it looked like they might have a few more members." It does not appear how the overseers ascer-' tamed that there were more members. CEDARTOWN YARN MILLS, INC. 593 coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The alleged discriminatory discharges 1. The discharge of Jessie Forrister Jessie Forrister was employed by the Respondent in November 1945 as a spinner at learner's pay. She had had previous experience, however, and after one week on learner's pay she was made a regular spare hand. As such, Forrister was supposed to circulate and to assist any of the regular spinners who needed her assistance. Forrister was a good employee according to Assistant Super- intendent Ritchey. She signed an application for union membership on January 28, 1946, and assisted in the organizational drive by discussing the Union with the employees in the mill and giving application cards to such of the employees as asked for them. At about 4 p. m., the beginning of the second shift on which Forrister worked, on February 5, 1946, Overseer Sam Smith, acting on orders from Ritchey, put For- rister on a "set of sides," i e , on a job as a regular spinner, removing the spinner who had been on the job and making her a spare hand.41 While she was eating supper that night, Forrister lost her roving brush. At about 10: 30 p. in. when she noticed that it was gone, Forrister started towards the wash room to look for it. Before reaching the wash room she turned to speak with a spinner in the vicinity. As she was approaching this spinner," Ritchey came into the room and saw Forrister. He immediately summoned her and asked her if she did not know that it was against the rules for her to leave her "sides." 4a Forrister replied that all the employees left their machines from time to time. Ritchey said that he was discharging all the employees who left their machines. The undersigned believes that Ritchey intended only to stop the employees from leaving their machines to engage in conversation with other employees who were working and not to prohibit them from leaving their machines to get a drink, to go to the canteen, or to the wash room, but Forrister evidently under- stood Ritchey to mean that she could not leave her machines for any of such purposes and she told Ritchey that if she could not leave her machines she would quit after finishing out the shift. Forrister started back to her work and Ritchey followed her and said if she was going to quit she might as well quit right away and that she should come to the office right away and get her money. Ritchey took Forrister to the office and wrote out her time ; whereupon Forrister went home. The next day Forrister returned to the mill and saw Ritchey to tell him that he had made a mistake in computing her final pay. Ritchey acknowledged the mistake and made the correction. Forrister then asked for her job back, say- 1 The only difference this change made was that Forrister was located in one place instead of acting as a roving assistant. Fixer Charles Patterson, called as a witness for the Board, testified credibly that Smith told him that Forrister was to be taken off the spare hand job and put on regular because Ritchey had said there was too much talking in the mill. Ritchey testified that the Respondent had been getting rid of spare hands because it had had too many, that Forrister was the last, and that he ordered her put on as a regular u This spinner was Sidney Green Lanier, who was a union member, although there is no evidence that this was known to the Respondent. Andrews testified that once or twice Lanier had asked him how the union organization was progressing and if she had to join if the Union came in. Andrews replied, "No.,' 0 Patterson testified that Lanier had called to Forrister, as the latter was passing, by saying, "Whoops." Ritchey apparently beard this as he entered the room and looked to see the girls laughing and throwing some object that looked like a ball of cotton 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing that she would obey whatever rules he made. Ritchey said that she should have kept the one she had, that he had already reported to the bookkeeper that she would be in for her pay, but that he might talk about reemployment later. It does not appear that Forrister ever applied to the Respondent thereafter?4 The Respondent contended that Forrister voluntarily quit. On the evidence, the undersigned finds that Ritchey discharged Forrister before she had given effect to her intention to quit. It was the theory of the Board's attorney that the Respondent put Forrister on a set of machines in order to keep her from talking with other employees about the Union. While there was evidence that Ritchey may have ordered the change to limit Forrister's talking, the evidence is inadequate to prove that Ritchey ordered the change to keep her from talking about the Union. Ritchey's action in accelerating the termination of Forrister's employment appears to have been intemperate and his refusal to reemploy Forrister upon her application the following day was based upon a frivolous reason, but it was not shown that Ritchey actually knew anything about For- rister's union activity. On all the evidence the undersigned regards the evi- dence as inadequate to establish that the Respondent discharged and there- after refused to reinstate Forrister because of her union membership or activity. 2. The discharge of Early Rogers Early Rogers, a man with 30 years' experience as a doffer, began his last period of continuous employment in the mill in about 1939. Testimony of wit- nesses for both sides established the fact that Rogers was a very good doffer. On February 4, 1946, Rogers signed a union application card in the mill. On February 5, Overseer Smith came to Rogers and told him that the Respondent objected to the employees going into other alleys and talking. As previously found, Smith also said that the Respondent did not like the union talk that was going around. On the next night, February 6, Superintendent Andrews noticed in the hands of one of the doffers some bobbins that had been short-doffed. Doffers work in pairs. When one of them notices that the bobbins on a particular frame are filling up with yarn, he will stop the machine and wind down the traverse. When he does so, his partner starts doffing the bobbins on the opposite side of the frame, while the one who wound the traverse down doffs on the side where he stands. When one doffer winds down the traverse, the other doffer has no choice but to doff the opposite side. Clarence Thompson, Rogers' partner, was the doffer who was carrying the short-doffed bobbins. Andrews stopped Thompson and asked him what he meant by doffing the bobbins short, telling him that the winder hands had been complaining about short dofiing.4S Thompson told Andrews that he did not wind the traverse down on the bobbins that he was carrying but that Rogers had done so.48 Andrews told the doffers that they would have to stop short-doffing. Then he went to Smith and showed him one of the short-doffed bobbins, told Smith that Rogers had done it, and told him that if it was not stopped he should discharge the offender. Smith went to 44 When applying for unemployment compensation , Forrister was told that she was not eligible because, according to their information , she had been discharged for refusal to obey orders. 45 Winder hands cannot make as much money with short-doffed bobbins because they are obliged more frequently to tie the ends 46 Rogers testified that it was Thompson and not he who had wound the traverse down. While the undersigned found Rogers a credible witness and was unfavorably impressed with Thompson's testimony, it is not of ultimate importance who wound the traverse down. CEDARTOWN YARN MILLS, INC. 595 Rogers and Thompson and told them not to short-doff any more. Prior to this time Smith had given instructions that the doffers should short-doff so that several machines with bobbins filled up would not have to be stopped at the same time When Smith told Rogers and Thompson not to short-doff, they showed him a frame on which they were working and called his attention to the fact that the yarn lacked about three quarters of an inch or a half an inch of being at the top of the bobbin 97 Rogers called Smith's attention to the fact that the ring was full and Smith said that in such case the bobbins would have to be doffed. About 40 minutes after Andrews had spoken to Thompson about short-doffing, Smith passed a frame where Rogers and Thompson were doffing and noticed that the yarn did not come to the top of the bobbin Smith asked Rogers who had wound the traverse down and Rogers said that he had done so. Smith called him to the office and said that he was going to have to discharge him for short-doffing. Rogers took four bobbins from those last doffed in order to show Smith that they were not short-doffed. Smith apparently was not convinced and told Rogers that he had warned him enough and would have to let him go. Smith testified that the last bobbins doffed by Rogers were at least a half an inch short of the top The evidence indicates that the overseers considered it preferable to short-doff rather than to let several machines stop at once. Because of complaints from the winder hands, however, orders were occasionally given to stop short-doffing. After such an order, the doffers would discontinue the practice for a time but would gradually get back to it The undersigned is satisfied that prior to February 6, 1946, Smith had not told the doffers to stop short-doffing. Previously he would only complain if the bobbins were doffed too short. The customary short-doff occurred about one-half hour prior to the time when the bobbin would be filled The last frame that Rogers doffed did not lack more than a half hour of being filled Before Rogers' discharge no doffer had been discharged for short-doffing. After Rogers' discharge, two or three other doffers were discharged for short-doffing. Two of these doffers were discharged during the early part of March before the Union's campaign started to lag. The evidence does not show the date of the discharge of the other doffer. Thompson had not joined the Union at the Respondent's mill, and the theory of the Board's case on Rogers' discharge rests principally upon that fact, and upon the fact that the severe penalty of discharge was imposed for the first time (for the type of short-doffing which had previously been approved) only after the Union campaign had started and only 2 days after Rogers had, joined the Union. The under- signed finds that there was a difference of opinion between Andrews and some of the overseers as to whether it was preferable to short-doff or run the bobbins full and have several machines stop at about the same time.48 The evidence did 41 Empty bobbins are placed firmly on spindles in a frame Each bobbin passes through a ring in a rail. The yarn is run through a traverse on this ring and the coils of yarn are distributed up and down the bobbin by the vertical motion of the traverse. The action of the traverse is such that the bobbin fills up thick in the middle an1l tapers off at the ends If the machine is in proper operating condition the yarn on the bobbin will reach the end of the bobbin at the same time that the yarn in the middle fills the ring If the machine is not in proper operating condition (and many that Rogers was assigned to were not) it may happen that the ring will fill up before the yarn reaches the end of the bobbin. In such case, the practice is for the doffers to remove the bobbin in spite of the fact that the yarn does not reach the top It is the duty of the fixer to put the traverse in condition so that it will carry the yarn all the way to the top 18 Smith said to the doffers, that he was tired of Ritchey's and Andrews' " being on" him about short-doffing and lie was going to stop it if lie had to let them all go 781902-48-vol. 76-39 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not disclose that the Respondent had any knowledge of Rogers' union member- ship. The undersigned finds that the Respondent did not discharge Rogers on account of his union membership or activity. 3 The discharge of Jessie Mullinax Jessie Mullinax was last hired by the Respondent in June 1945. She quit in September of that year and a few weeks later returned and was reemployed. She served as a spinner on the second shift. On February 19, 1946, Mullinax signed an application for membership in the Union She testified that she wore a union button, but she also testified that she wore it under a piece on her blouse, and the undersigned concludes that the button was not in plain sight. On about Wednesday, February 21, 1946, Smith asked Mnlhnax if she would like to rest for a few clays Smith had a few extra spinners, and on nights when he had more on hand than he needed he would lay one off for a day or se at a time Therefore, "taking a day or two off to rest" was a euphemistic ex- pression for a lay-off Mullinax said that she did not want to lay off and went to Ritchey and complained to him that she wanted to work Ritchey offered to give her a job on the third shift, but Mullinax gave an excuse why she could not work on that shift. MYillinax testified that a little while before Smith told her to lay off he had asked her if she didn't have a union button on, that she had replied affirmatively and that he said, "Don't you know that's gonna take your jobs" Smith was not asked about this specific incident. Mullinax' testi- mony was very much confused and in fact inconsistent. Mullinax testified that she had worn the union button for a week and 2 or 3 days Yet, according to her testimony, Smith laid her off on February 21, just 2 days after she made application to the Union In view of the fact that Mullinax wore her union button concealed, the undersigned considers it very unlikely that Smith would either have seen it or commented upon it In view of that fact and the general unreliability of Mullinax' testimony the undersigned does not credit it as to this incident. Smith testified that the next day after he laid her off Mullinax came in and told him she was quitting He further testified that she was gone for quite a while and later carne back Part of Mullinax' confused testimony tended to corroborate Sinith's testimony, although Mullinax denied that she had quit. When she returned the last time, Ritchey took Mullinax to Smith and asked him if he could use another spinner. Smith said that he did not need one. Mullinax said that she would not work for Smith anyway She again refused to take a job on the third shift Mullinax was not one of the better spinners. On all the evidence the undersigned finds that the Respondent did not discharge Mullinax nor lay her off because of hei union membership or activity 4 The discharge of W L Hesler William Hesler was employed by the Respondent in the latter part of Decem- ber 1945. After working for a short period in the card room. Hesler was ti ans- lerred to the spinning room, where it was his duty to blow off frames and to lay up roving. Hesler signed an application for membership in the Union on Jan- uary 25, 1946. He passed out a few union application cards on the third shift on which he worked, and for about 2 weeks prior to the termination of his employ- ment, he wore a union button. Hesler last worked on Friday, March S After that, he was absent until midnight of March 12 (the 12 midnight to S a. m shift on March 13). Hesler (lid not get his time slip for his pay the prior week. When he ieported for work at midnight on March 12 his overseer gave him the slip for CEDARTOWN YARN MILLS, INC. 597 his pay which he had failed to get the prior week Hesler understood that he was being discharged and paid up because of the fact that he had stayed out with- out giving notice. Overseer Ivey testified that Resler would come in, hang up his coat, make a round of the floor, and then walk out, that he had told Hesler that he could not do that, but that he did not discharge him. Ivey further testi- fied that he gave Hesler a slip for his weekly pay and did not see him after that. Hesler testified that he took his pay slip to Ritchey, who wrote the word "fired" on it. Hesler demonstrated at the hearing that he could not read or write well enough to recognize the word "tired " On the foregoing evidence the undersigned credits Ivey's testimony that he did not discharge Hesler. Accord- ingly, it is found that the Respondent did not discriminate in regard to the hire and tenure of employment of William Hesler. IV THE EFFECT OF THE UNFAIR LAROR PRACTICES UPON COMMERCE The activities of the Respondent found in Section III, above, to constitute un- fair labor practices. occurs ing in connection with the operations of the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce V. THE REMEDY Since it has been found that the 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 the Respondent has violated the Act by the statements of its supervisor, Smith, to William and James Goddard and by discharging certain employees because of their union membership and activity. Upon the entire iecord the undersigned infers and finds that the Respondent, by its foregoing coercive conduct, especially by the discriminatory discharges, has displayed an attitude of opposition generally to the purposes of the Act. Because of the Respondent's unlawful conduct and the underlying purposes mani- fested thereby, the undersigned is convinced and finds that the unfair labor prac- tices which it has committed ale persuasively related to the unfair labor prac- tices proscribed by the Act and that the danger of the commission in the future of any or all the unfair labor practices listed in the Act is to be anticipated from the Respondent's conduct in the past The preventive pinpos's of the Act will be thwai ted unless the remedy is coextensive with the threat It will therefore be recommended that the Respondent cease and desist not only from the unfair labor practices herein found but also from in any other manner inter- fering with, restraining, or coercing its employees in the exercise of the rights guaianteed in Section 7 of the Act. Since it has been found that the Respondent discriminated in regard to the hire and tenure of employment of Jim Green, William Goddard, Calvin Phil- pot, Jenora Philpot, Maxine Philpot, and Doyle Powell, it will be recommended that the Respondent offer to each of them immediate and full reinstatement to his former or substantially equivalent position 40 without prejudice to his seniority and other rights and privileges. It will further be recommended that the Respondent make each of said persons whole by paying to each an amount equal to that which 49 In accordance with the Board's consistent interpretation of the term , the expression "former or substantially equivalent position " is intended to mean "former position wher- ever possible, but if such position is no longer in existence , then to a substantially equiva- lent position " See Matter of The Chase National Bank of New York, San Juan, Puerto Rico, Branch, 65 N. L R B. 827. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he normally would have earned as wages from the date of the discrimination against him to the date of the offer of reinstatement, less his net earnings 60 during said period. Even if it were conceded for the sake of argument that the discharge of Jenora and Maxine Philpot did not have a tendency to discourage union activity, the con- sequences of the unfair labor practices against Calvin Philpot would not be remedied nor the policies of the Act effectuated unless the situation which existed prior to the commission of the unfair labor acts is restored To accomplish this it will be essential that Jenora and Maxine Philpot as well as Calvin be offered reinstatement and made whole for any loss of pay they may have suffered as a consequence of the Respondent's unfair labor practice against Calvin. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAw 1. Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, 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 Jim Green, William Goddard, Calvin Philpot, Jenora Philpot, Maxine Philpot, and Doyle Powell, thereby discouraging membership in a labor organization, the Respondent has engaged in and is engaging in unfair practices within the mean- ing of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exer- cise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (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. The Respondent has not discriminated in regard to the hire and tenure of employment of Jessie Forrister, Early Rogers, Jessie Mullinax, or William Hesler. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that the Respondent , Cedartown Yarn Mills , Inc., its officers, agents , successors , and assigns shall: 1. Cease and desist from : (a) Discouraging membership in Textile Workers Union of America, C. I. 0., or 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 the hire and tenure of employment or any term or condition of employment of any of its employees ; (b) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the right to self-organization , to form labor organi- zations, to join or assist Textile Workers Union of America , C. I 0., 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 as guaranteed in Section 7 of the Act. ' 50 See Matter of Crossett Lumber Company, 8 N L. R. B 440 CEDARTOWN YARN MILLS, INC. 599 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Offer to Jim Green, William Goddard, Calvin Philpot, Jenora Philpot, Maxine Philpot, and Doyle Powell, immediate and full reinstatement each to his former or substantially equivalent position" without prejudice to his seniority and other rights and privileges; (b) Make whole each of the aforesaid persons for any loss of pay he-may have suffered by reason of the Respondent's discrimination against him by pay- ment to each of a sum of money equal to the amount he would normally have earned as wages from the date of his discharge to the date of the Respondent's offer of reinstatement, less his net earnings 62 during said period ; (c) Post immediately at its plant in Cedartown, Georgia, copies of the notice attached hereto and marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Tenth Region (Atlanta, Georgia), shall, after being duly signed by the Respondent's representative, be posted immediately upon receipt thereof arxl 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 Tenth Region (Atlanta, Georgia), in writing within ten (10) days from the date of the receipt of this Intermediate Report of what steps the Respondent has taken to comply herewith. It is further recommended that, unless on or before ten (10) days from the date of the receipt of this Intermediate Report, the Respondent notifies the said Regional Director in writing that it will comply with the said recommendations, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. It is further recommended that the complaint be dismissed as to Jessie For- rister, Early Rogers, Jessie Mullinax, and William Hesler. As provided in Section 203.39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel for the Board may, within fifteen (15) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.38 of. said Rules and Regulations, file with the Board, Rochambeau Building, Wash- ington 25, D Q, an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report 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 four copies of a brief in support thereof ; and any party or counsel for the Board may, within the same period, file an original and four copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.65. As further provided in said Section 203 39, should any party desire permission to argue orally before the 81 See footnote 49, supra. 52 See footnote 50, supra 0 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. JAMES R HEMINGWAY, Trial Exaniner. Dated April 8, 1947. 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 in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor or- ganizations, to join or assist TEXTILE WORKERS UNION OF AMERICA, CIO, 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. WFI WILL OIFER to the employees named below immediate and full rein- statement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. 9 Jim Green Jenora Philpot William Goddard Maxine Pliilpot Calvin Philpot Doyle Powell 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. CEDARTOWN YARN MILLS, INC., Employer. Dated------------------------ By ---------------------------------- (Representative) (Title) NOTE : Any of the above-named employees presently serving in the armed forces of the united States will be offered full reinstatement upon application in ac- cordance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. I