Fayette Cotton Mill

DIECISIONS OF NATIONAL LABOR RELATIONS BOARD Fayette Cotton Mill and United Textile Workers of America, AFL-CIO-CI.C. Case 10-CA-13087 September 26, 1979 DECISION AND ORDER By (CHAIRMAN FANNING AND MEMBLRS JENKINS AN) PNEZX) On January 24, 1979, Administrative Law Judge Hterzel tt. E. Plaine issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel tiled a brief in answer thereto. Pursuant to the provisions of Section 3(b) of the National L.abor Relations Act, as amended, the Na- tional abor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,t and i Respondent has excepted to certain credihiliti findings made by the Ad- nuimnltratise aw Judge. It is the Board's established plics not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all ot the relevant evidence consinces us that the resolutions are incorrect. Sianldard Dnr Wlil Products. Inc, 91 N RB 544 11950), enid. I88 .2d 362 3d ('irt. 1951). We have carefully examined the record and find no basis for reversing his tindings We agree with the Administrative ilaw Judge that Respondent enforced plant rule I against Douglas lumphries in a disparate manner for discrimi- na.lor\ reasoins and thel-eby violated Sec. 81a)(3) and 1) of' the Act In so holding. however. we now correct several actual errors in the Administrative .law Judge's analsisis supporting his finding of disparate treatment. The Ad- nlilstratlve law Judge concluded that, though the third step of the progres- sle disciplinary svstem associated with plant rule I could he either a layoff or a discharge. umphries was the onli employee discharged at his third offense I he record shows that I)ennis Aldridge was also discharged without a prior disciplinars layoff. During his third periodl of employ ment following two prior discharges and rehires, Aldridge received an oral warning for his first violation of plant rule I and a written warning for his second absence. I hough the written warning indicated that a 3-day layoff would be imposed tor his next absence, Alridge was in act discharged when that occurred on Octobher 3, 1977 Brenda Bircheat received an oral warning for an absence on January 31, 1977, and a written warning fir her second absence on February 2 1977. She was discharged on March 7, 1977. for her third absence and was never given a disciplinary layoff. I'he Administrative .aw Judge is incorrect in finding that since Bircheat's discharge notice indicated that she had last reported for work on March 4 her discharge was therefore justified under plant rule 42. which prov ides fr mmediate discharge upon failure to report for 3 conecu- trie workdays March 6 was a Sunday and not a workday. We find that Bircheat was discharged for violations o'f plant rule I at the third step of the progressive disciplinary scale. Further. the record shows that Eddie James Gilpin was discharged for the first time in April 1977. His personnel file reveals that he quit and was not discharged in August 1965 and in March 1976. Therman Selman was discharged on five, not eight, different occasions between 1959 and 1977. We are satisfied that the history of Responnent's enforcement of its plant rules amply supports the Administrative Law Judge's finding of' disparate treatment. Contrary to both company policy and pratice, Humphries re- ceived no oral warning for his late arrival on August 27. 1977. He did receive a written warning for his absence on August 30. He was discharged on September I after reporting for work 30 minutes late. All other employees discharged for multiple violations of plant rule I received at least two warn- ings and all of' them, except Aldridge and Bircheat. received a 3-day disci- plinar) layoff prior to discharge. conclusions of the Administrative Law Judge only to the extent consistent herewith, and to adopt his rec- ommended Order, as modified herein. The Respondent has excepted to the Administra- tive Law Judge's findings that Assistant Plant Man- ager Smith's remark to Douglas Humphries to the effect that the Union has left and "chickened out" on the employees constituted disparagement in violation of Section 8(a)(1). We find merit in this exception. Administrative Law Judge Plaine's reliance on Al Pfister, dh/a Pfister Truck Service, 236 NLRB 217 (1978), is misplaced. In that case Pfister's remark that the union had "sold the employees down the river" was combined with telling an employee "not to go down to the Union." However, the Administrative Law Judge addressed only the "down the river" por- tion of the remark in finding an 8a)( 1 ) violation as to disparagement. The recommended Order and notice, as adopted by a Board panel including Chairman Fanning and Member Penello, did not included any reference to either the disparagement or the solicita- tion of union withdrawal aspect of Pfister's remark. Similarly, the Administrative Law Judge in Lehigh Lumber Companan, and Brown-Borhelk compan, 230 NLRB 1122 (1977), found that a supervisor's remark to an employee that the union was "screwing" him and that he ought to look for another union was in- tended to denigrate the union and was therefore vio- lative of Section 8(a)(I ). As in Pfisver, supra the rec- ommended Order and notice as adopted by the Board did not require the respondent to cease and desist from the behavior found violative by the Administra- tive Law Judge. In the instant case Smith's "chickened out" remark was immediately preceded by a coercive interrogation of Humphries as to how Humphries thought the Union's withdrawal of its election petition would af- fect its cause. This case differs from the above-cited cases in that the Administrative Law Judge found, and provided a remedy for, two separate violations arising out of the same incident. One was for the coer- cive interrogation and the other was for the "dispar- agement." Under the facts of this case, given a cease- and-desist order directed specifically to the interroga- tion, we find that Smith's disparaging remark was merely ancillary to the interrogation insofar as it may have had a coercive impact on Humphries' Section 7 rights. We view Section 8(c) as protecting a respon- dent's characterization of the union which employees are quite capable of evaluating for themselves.2 2Chairman Fanning would find in agreement with the Administrative Law Judge that Smith's statement to Humphries that the Union had "chick- ened out" or run out on the employees violated Sec. 8(a 1I) of the Act as it was immediately preceded by Smith's coercive interrogation of Humphries as to why the Union withdrew its election petition and what he (Humphries) thought the withdrawal would do to his cause in support of the Union. Thus. 245 NLRB No. 64 428 FAYETTE COTTON MILL ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- low, and hereby orders that the Respondent, Fayette Cotton Mill, Fayette, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Delete paragraph I(d) and reletter the remain- ing paragraphs accordingly. 2. Substitute the following for paragraph 2(b): "(b) Offer to said employees immediate and full reinstatement to his former job or, if the job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights and privileges previously enjoyed." 3. Substitute the attached notice for that of the Administrative Law Judge. contrary to the majonty, it is clear from the record that the disparagement of the Union was not isolated from or unconnected with any other unlawful conduct. Accordingly, in view of the fact that the "chickened out" charge was closely related to and took place in the context of Smith's unlawful interrogation, the cases cited by the majonrty, which parallel the situation herein, compel the conclusion hat the disparagement of the Union did vio- late Sec. 8(aXI) of the Act. Chairman Fanning does not think the decisions the majority must distin- guish to rationalize its decision in this case are distinguishable. Although the majority observes that the Orders and notices of the cited cases do not ex- plicitly refer to the disparagement as such, they do refer to the unlawful conduct with which the disparagement was intertwined; namely, the respon- dents' suggestion that the employees abandon their allegiance to the union seeking recognition. The essential consideration is that the cases in question stand for the proposition that the disparagement of a union is unlawful when, as here, it is closely associated with other unlawful conduct. Once the disparagement is found to be violative of the Act pursuant to that principle. the majority cannot tenably argue that it is improper to fashion in this case an appropriate remedy which specifically refers to the unlawful disparage- ment of the Union. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties were represented and had an opportunity to present evidence and to cross-examine witnesses, the National Labor Rela- tions Board has found that we violated the National Labor Relations Act and has ordered us to post this notice: WE WILL NOT warn our employees of the futil- ity of voting the Union in. WE WILL NOT threaten to close the plant if employees vote the Union in. WE WILL NOT coercively question our employ- ees on why they desire and support the Union, or why the Union withdrew its election petition, or what withdrawal would do to their support of the Union. WE WILL NOT discharge or discipline employ- ees, or bar them from reemployment, for infrac- tions of the plant attendance rules without re- gard to the prescribed system of warnings and discipline and the policy for rehiring experienced employees. WE WIL NOT discourage our employees' sup- port of our membership in the Union, or any other labor organization, by discharge or other discrimination affecting their tenure or condi- tions of employment. WE WIllL NOT in any other manner interfere with, restrain, or coerce our employees in the ex- ercise of rights guaranteed in Section 7 of the National Labor Relations Act. WE WILL offer Douglas Humphries immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed. WE WILL pay Douglas Humphries backpay. with interest, from the time of his discharge. Sep- tember 1, 1977. FAYETTE COTTO N MILL DECISION STATEMENT OF THE CASE HERZEI. H. E. PLAINE, Administrative Law Judge: The case principally involves the discharge by Respondent of its employee Douglas Humphries on September 1, 1977. Re- spondent is a manufacturer of cotton and blend yarns. The complaint alleges.' and General Counsel contends. that Respondent discharged employee Humphries in viola- tion of Section 8(a)(3) and (1) of the National Labor Rela- tions Act (the Act), because of his open active support of the Union in 1976 and 1977 campaigns to organize Respon- dent's employees. Respondent claims it fired employee Humphries because. in violation of the plant attendance rule, he was tardy twice and absent a day without advance report. just prior to his discharge. In reply, General Counsel contends that the infractions by employee Humphries were his first in a seven year pe- riod of service as a satisfactory employee. and that Respon- dent reached out to use the infractions as an excuse to dis- charge Humphries in disregard of its system of progressive discipline for violations of the attendance rule and its prac- tice of normally allowing greater latitude for infractions Complaint was filed November 21. 1977. on a charge filed b Charging Party (the Union) September 19. 1977. and amended charge filed November 10. 1977. 429 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and less servere discipline where antiunion animus was not the motivating factor. The complaint has also alleged independent violations by Respondent of Section 8(a)(I)of the Act, including coercive interrogation of employees concerning their interest in the Union, impressing them with the futility of engaging in union activities and threatening plant closure. Respondent has denied these allegations. The case was heard in Fayette, Alabama, on March 9 and 10, 1978. General Counsel and Respondent have filed briefs. Upon the entire record of the case, including my observa- tion of the witnesses and consideration of the briefs, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent is an Alabama corporation with an office and place of business located at Fayette, Alabama, where it is engaged in the manufacture of yarn' In the past calendar year, a representative period, Re- spondent sold and shipped finished products valued in ex- cess of $50,000 directly to customers outside Alabama. As the parties admit, Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act. As the parties also admit, the Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. 11. THE UNFAIR LABOR PRACTICES A. Respondent's Business Operations Respondent operates a mill or plant at Fayette for the manufacture of cotton yarns used by garment manufactur- ers, including use at plants of the owner or parent Union Underwear Company (see fn. 2, supra) and plants of other garment manufacturers, according to Assistant Plant Man- ager Jack W. Smith, who is in charge of the plant produc- tion and personnel. The plant, which was increased in physical size in a 1975-76 expansion, went from about 350 employees to a current work force of between 500 and 600 employees. Of these, about 18 or 19 are supervisors or part of manage- ment, according to Smith. 2 This finding is based upon the similar allegation in the complaint, admit- ted in the answer. However, according to the undisputed testimony of Assist- ant Plant Manager Jack W. Smith (see also testimony of employee Brenda Humphies), the Fayette Cotton Mill is owned (either directly or as a corpo- rate subsidiary, it was not elaborated upon) along with other plants in other locations, by Union Underwear Company. Hence, Fayette Cotton Mill ap- pears to be the nominal Respondent. This would seem to be an adequate finding at this stage of the proceeding, unless and until ultimate responsibil- ity should become material. In this connection, I grant the motion of Respondent, included on p. 6 fn. 4 of its brief, that the transcript of testimony be revised to reflect the correct spelling of the name of Medalie (erroneously spelled McDaly at p. 117 through 121), who in Brenda Humphries' testimony was described as vice president, along with Hopkins as district manager, of Union Underwear Company. The manufacturing process, of spinning the raw materi- als into yarn and putting the twist in the yarn to make it cohesive and strong, is performed on large electrically driven spinning frames that each contain many spindles and bobbins. Employees called spinners tend to the spin- ning. As the yarn is spun and twisted it fills the bobbins, and employees called doffers lift off the full bobbins of yarn, replacing them with empty bobbins to start up the spinning frames again. The doffers carry the full bobbins to the winding room where the yarn is wound on to large spools for shipment. Thus the rank-and-file employees are largely spinners, doffers, fixers or section men, electricians, and other main- tenance employees.' The plant operates 6 days per week, in three shifts, round the clock. At the time of the hearing and events of the case, in charge of plant production and personnel, including hiring and firing of employees, was Assistant Plant Manager Jack W. Smith. Under Smith and responsible to him, was the head of the spinning and winding department, Department Head Da- vid M. Ray. Under Ray. were several supervisors, including Supervi- sor Wayne Nichols of the first shift, Supervisor James D. Hulsey of the second shift, and Supervisor Joel Wilkinson of the third shift. All five of the above-named individuals were supervisors and agents of Respondent within the meaning of Section 2(11) of the Act, as admitted by Respondent. B. Union Organizing, Company Opposition The Union engaged in two campaigns to organize the employees of the Fayette Cotton Mill, in 1976 and 1977, according to employee Douglas Humphries. In connection with the 1977 campaign a Board supervised election was scheduled for August 19, 1977. However, 3 days prior, on August 16, the Union withdrew its petition for the election, and the election was not held. Earlier, the Union had been successful in organizing the employees at another of Union Underwear Company's plants, at Aliceville. and in obtaining a collective-bargain- ing agreement for those employees (testimony of employee Douglas Humphries). Nevertheless, the company opposed the unionizing of the employees at the Fayette mill by, among other things, ap- pearances and speeches in the plant in opposition to the Union by the company officials such as Vice President Joseph Medalie (testimony of employee Brenda Hum- phries), a campaign in the plant to stop union organizing including training sessions for supervisors on dealing with employees on the union question (testimony of Supervisor James Hulsey), and distribution of handbills for the com- pany in opposition to the Union by Fayette mill employees (testimony of fixer or section man Thomas Alvin Johnson). Employee Douglas Humphries was active for the Union in both the 1976 and 1977 campaigns. He obtained signed I The fixers or section men see that the spinning frames keep functioning properly, and perform certain routine functions of the supervisors, such as observing that the requisite employees in their sections are in place when the spinning starts. 430 FAYETTE COTTON MILL union authorization cards from fellow employees, attended union meetings, wore union buttons and insignia while in the plant, and served on the employees' union organizing committee. At trial, Respondent admitted awareness of em- ployee Douglas Humphries' union activities. C. 8(a)(1) Findings-Coercive Interrogation, Threats. Warnings About August 1, 1977, a little more than 2 weeks before the scheduled election, on a break in the plant breakroom, according to employee Douglas Humphries and his wife, employee Brenda Humphries, they were approached by second shift Supervisor James Hulsey, who engaged them in conversation that turned to the matter of the Union. Hulsey asked them why they thought they needed the Union. Douglas Humphries answered that it would help the plant. and Brenda Humphries added for job security and better pay. Hulsey said, that the Union only wanted the dues of the employees, that the Union would not pro- tect them or guarantee them job security, and that it would give them nothing that the Company did not want them to have. Hulsey named several plants that had shut down one in nearby Tuscaloosa that he said might still have been open had it not been for the Union, and told them that if the Fayette plant went Union it might shut down. A few minutes later, when employee Brenda Humphries was back at her place on the plant floor, Supervisor Hulsey came by, and asked her again why she thought she needed the Union, telling her the company cared for the employ- ees. Brenda Humphries replied that she doubted that com- pany officers like (Vice President) Medalie or (District Manager) Hopkins cared for the employees. Shortly there- after, employee Douglas Humphries came over to help his wife on the plant floor.' Supervisor Hulsey was nearby. He called Douglas Humphries aside, and continued to talk about the Union. Hulsey told Humphries that the company cares about us, but that the company would care more for you without a Union than with a Union. Supervisor Hulsey claimed that in these conversations he did not say that the Union could not get the employees anything the company did not want them to have or that the company might close the Fayette plant. I find Hulsey's denials unconvincing in light of his other testimony that he personally, as well as the company, did not want the Union in the plant; that he would do anything, within the law, he added, to keep the Union out; that he had been in several sessions with other supervisors on how to treat with em- ployees on the union question; and (the incredible asser- tion) that he was not trying to convince the Humphries not to vote for the Union. As the Board has most recently reiterated in Paceco. A Division of Fruehauf Corp. 237 NLRB 399 (1978). "an inter- rogation of an employee's union sympathies or his reason for supporting a union need not be uttered in the context of ' He was a doffer, and she was a spinner: and since he worked fast and usually doffed the expected three frames per hour in less than half the time allotted, he frequently volunteered help to his wife instead of spending his down time in the breakroom. The practice was known and accepted by supervision. threats or promises in order to be coercive. The probing of such views, even addressed to eniplvyees who have openlv ie- clared their prounion synpalhies. reasonably tends to inter- fere with the free exercise of employee rights under the Act. and consequently, is coercive. [Emphasis supplied.]" in vio- lation of Section 8(a)( 1) of the Act.' In this instance, the interrogation of the t o H umphries by Supervisor Hulsey was not only coercive in its nature, in the context of the impending representation election and Respondent's open hostility to the Union. but was also ac- companied by threat of plant closure if the Union was voted in, N.L.R.B. v. Gissel Packing Co., 395 U.S. 575. 618 620 (1969): and by warning of the futility of voting the Union in. Trailwao's Inc.. 237 NLRB 654 (1978): 'omac Industries. 238 NLRB 43 (1978), both of which the threat and warning are themselves violations of Section 8(a)(1) of the Act. On August 15, 1977. 4 days before the scheduled repre- sentation election, third shift Supervisor Joel Wilkinson came into the breakroom where a number of employees were gathered. Wilkinson testified there were 10 to 15 em- ployees in the room. Among them were employees Douglas and Brenda Humphries and Janet Browning. According to these three employees. Wilkinson carried with him a sample election ballot, which he showed about to the employees with the places for voting yes or no, and urged the employ- ees to vote no. saying, that is the way we want you to vote, vote no, like Doug and Brenda (Humphries) and we will all he happy. Supervisor Wilkinson testified he was not sure he said that, though he knew the Humphries were for the Union. Douglas Humphries spoke up and said, vote yes, the only way we are going to be happy. Supervisor Wilkinson then sat down where employees Douglas and Brenda Humphries were sitting, and, as both of them testified, asked them to explain to him why they felt they needed the Union.6 Employee Brenda Humphries said she and her husband mentioned job security and pay raises. Supervisor Wilkinson told them of several plants that had shut down because of the Union. and of the Union contract at the Aliceville cotton mill (like Respondent also owned by or a subsidiary of Union Underwear Company) where, he said, the employees made less money under their Union contract than the employees at the Fayette mill earned: and further told them that if they voted the Union in and got a contract, the contract would be exactly like the Aliceville mill contract because the same union people and company people would be bargaining for the Fayette mill contract. and would not negotiate a better contract for one mill over the other. Paceco also reiterated that the employee's subjectise state of mind. or his responses to the interrogation. do not diminish the coercive impact of the supervisor's interrogation. I In this connection, while counsel for Respondent sought to suggest that Supervisor Wilkinson's approach was good-natured, joking. and friendly. Supervisor Wilkinson himself did not so testify. Employee Browning testified that when Wilkinson made his entry into the room he appeared to be speak- ing jokingly but nobody laughed, and the conversation in hich he engaged the Humphries was seriuos argument about the Union. Douglas Humphries testified there was no laughter or joking on either side. Both he and Wilkin- son made plain in their testimony that though they had known each other all their lises they had not been friends at least since Humphries' marriage several years earlier. and the exchange in the breakroom was not a friendly one I so find 431 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Supervisor Wilkinson's vagueness in remembering what happened and what he did in the breakroom meeting with the employees has caused me to discredit his denial that he questioned the Humphries on why they desired and sup- ported the Union. His probing of such views, even of em- ployees known to have prounion sympathies, was coercive and tended to interfere with the free exercise of their Sec- tion 7 rights, see Paceco supra, and, made in the context of the impending representation election and supervisory hos- tility to the Union, violated Section 8(a)(1) of the Act.7 A few days after August 16, 1977, the date when the Union withdrew its petition for the representation election scheduled for August 19, 1977, employee Douglas Hum- phries came to Assistant Plant Manager Jack Smith's office on a matter relating to work, as both testified.8 Humphries was seeking overtime work and was inquiring of Smith why second shift Supervisor Hulsey would not let him work overtime. Smith said he would check on the matter. After saying so, Assistant Plant Manager Smith asked employee Douglas Humphries, how come the Union ran out on the employees, and what would it do with respect to his cause.9 According to Humphries, Smith also commented that, it was after the last union meeting that the Union packed and left and chickened out on the employees. Hum- phries testified that he denied that the Union had run out or chickened out on the employees; and, according to Smith. in response to his questioning, employee Humphries also commented that the Union might lose some cards or may not get some of the cards signed again. I agree with General Counsel that the plant manager's questioning of employee Humphries as to why the Union withdrew its election petition and what he thought the with- drawal would do to his cause in support of the Union, was coercive interrogation in violation of Section 8(a)(l) of the Act. As pointed out in Paceco, supra, 99 LRRM at 1546, n. 4, the employee's subjective state of mind, possibly indi- cated by his responses, do not diminish the coercive impact of his supervisor's interrogation, which is tested by its ten- dency to interfere with the free exercise of the employee's Section 7 rights. Here the tendency was compounded by the supervisor's additional remarks that the Union had run out or chickened out on the employee and his fellow employees, which was a further interference with the employee's sup- port of the Union calculated to disparage and undermine the Union in the eyes of employees in violation of Section 8(a)(1) of the Act. Compare, Al Pfisler, d/bl/a Al Pfister Truck Service, 236 NLRB 217 (1978), where several em- Even if the interrogation had taken place in a friendly atmosphere (which was not the case, see fn. 6, supra), it would have violated Sec. 8a I) of the Act, Erie Technological Products, Inc., 218 NLRB 878 (1975); likewise. if the interrogation had been out of curiosity (again not the case) Paceco, supra. I The complaint alleged this was August 19, but Humphries testified it was more likely in the following week, possibly August 24. when he had been permitted to return to work after 8 working days absence in which he wanted to work but was not permitted to work by second shift Supervisor Hulsey because of a cut hand. The forced leave had begun in the afternoon of August 15. At the time of his injury and return, Humphries was temporarily on second shift, but was returned to first shift after coming back August 24. 'Assistant Plant Manager Smith testified making these inquiries of em- ployee Humphries, but waffled on whether he or Humphries opened the discussion concerning the Union. From other testimony of both, I believe it is apparent that Smith initiated the discussion. ployees were told by the employer that the union had sold them down the river. D. 8(a)(3) and (1) Findings-Discharge of Employee Douglas Humphries 1. Events leading to discharge Employee Douglas Humphries worked for Respondent from January 25, 1971, to September 1. 1977, a period of almost years. He was a doffer, and a good one, as testified to by Assistant Plant Manager Jack Smith. Humphries was not only proficient but exceptionally fast in performing his work, doing the three frames per hour assigned to him usu- ally in less than half an hour. (The assignment was no more, as well as no less, than three frames per hour, because the doffing had to be coordinated with the spinning.) In his free time or downtime Humphries frequently went over to where his wife Brenda worked as a spinner, and helped her, with the knowledge and consent of the supervisors. As Assistant Plant Manager Smith testified, he and the plant supervisors knew that employee Douglas Humphries was a supporter of the Union in the 1976 and 1977 union campaigns, the latter of which came to an abrupt end in mid-August with cancellation of the slated election for Au- gust 19, 1977. Smith also testified that it was not until the last week in August that employee Humphries had given Respondent any cause to discharge him. Indeed, as Smith admitted there was no record of a warning in Humphries' personnel file of possible discipline for any infractions of rules or delinquencies until August 31, 1977, the day before Humphries was fired, when he was given a warning slip for an "unreported and unexplained absence" on the previous day, August 30. Smith took responsibility for Humphries' discharge on September 1, and said he relied on what was in Humphries' file in deciding to discharge him and to bar him from future employment. The events prior to the discharge were the following: On Sunday. August 14, 1977, employee Humphries acci- dentally cut his hand at home. It required stitches to close the wound. and the doctor wrote a note to excuse Hum- phries from work, but he preferred to work and reported for work on Monday, August 15. He worked 4 hours, but in the afternoon of August 15, he was sent home by Supervisor Hulsey who said, according to Humphries, that he could not let Humphries work "because of the insurance situ- ation." The forced, though excused, absence continued for 8 working days until midday Wednesday, August 24, when Humphries was permitted to return to his work. While he had been temporarily on the second shift at the time of his injury. he was assigned back to his regular first shift job, which commenced daily at 6 a.m. On Saturday, August 27, employee Humphries came in 3 hours late. He testified that he had not been late before, his first shift Supervisor Wayne Nichols corroborated this, and the personnel file was devoid of any reference to an earlier delinquency. Humphries sought out his supervisor Wayne Nichols and told Nichols that he had overslept. Nichols took Humphries to the head of the spinning and winding departments, David Ray, and asked Ray what he should do with Humphries. This in itself was an unusual step, partic- 432 FAYETTE (COTTON MII.I. ularly for a first-time tardy. because. as indicated by the testimony on the subject provided hby Assistant Plant Man- ager Smith, the shift supervisors were in charge of attend- ance and attendance records and of whether tardiness or absence was excused or unexcused.' 0 According to Department Head Ray. he said to Supervi- sor Nichols, with employee Humphries present. well he has come in, let him go to his job, it is not covered by a regular doffer. Employee Humphries testified he was not given a warn- ing for being late that morning, August 27. Supervisor Nichols claimed he gave employee Hum- phries an oral or verbal warning that morning. and further claimed that a note he put in Humphries' personnel file, G.C. Exh. 5, was a record of the verbal warning. However, the note reads: "Douglas Humphries 8--27 77. I talked to Douglas to- day about reporting late. He states he overslept. Wayne Nichols." Supervisor Nichols conceded that he does not give warn- ings every time an employee comes late or fails to give advance notice that he or she will be late or absent, and particularly that he may not give a warning the first or even the second time an employee comes in late. He further tes- tified that he may talk to the employee who was late or absent, but that the talk is not necessarily an oral or verbal warning, and that it is not a warning if he does not state to the employee that it is a warning. Nevertheless, said Nich- ols, he may make a note of the talk for his own use. Nichols further conceded, as is apparent from the text of the file note, G.C. Exh. 5 above, that his note does not state that he gave employee Humphries a warning or a verbal warning. But, said Nichols, notwithstanding this was the first occa- sion that employee Humphries had come late, he, Nichols. did more than he wrote down, and gave Humphries a ver- bal warning in the presence of Department Head Ra. However, in his testimony concerning the August 27 inci- dent, Department Head Ray gave no testimony in support of Supervisor Nichol's claim of a verbal warning to Hum- phries. Moreover. Assistant Plant Manager Smith. who tes- tified that he made the decision to discharge Humphries on September I based upon the memoranda in Humphries' file, admitted there was no record of a verbal warning in the file, and that Nichol's note of August 27, G.C. Exh. 5 above, was not a record of a verbal warning." In the circumstances I do not credit Supervisor Nichol's claim that he gave employee Humphries a verbal warning in connection with his reporting for work late on August 27. Is Supervisor Nichols testified that he personally, as well as the company. was opposed to the Union coming into the plant. and that he used any occasion employees discussed the matter with him, to tell them so. Ai Typical records by supervisors of verbal warnings in 1977 and late 1976 are exhibits G.C. Exh. 9. G.C. Exh. 19. Resp Exh. 12. Resp Exh. 21. and Resp. Exh. 26. which are either labeled verbal warning, or state in the body of the memorandum that the warned employee was verhally or orally warned, or both. Resp. Exh. 3 is an example of a verbal warning, by Super- visor Nichols. gen to employee Gail Hamm. citing that Nichols had gone over, with the employee, her record of absences and told her that henceforth she would be given wntten warnings when absent without a doctor's excuse or proper notice. Digressing momentarily. Respondent has a set of w ritten plant rules, G.C. Exh. 4, which specit a progression of disciplinary steps that will be taken if' infractions occur. Thus, plant rule 1. the rule directly involved in this case. prohibits unauthorized or excessive absence or late arrival: and it is provided that infractions of the rule will result in (I ) a verbal warning for the first oflense: (2) a written warn- ing for the second offense: (3) a disciplinarx layoff or dis- charge for the third offense: and (4) discharge for the fourth offense) 2 Plant Manager Smith testified that under the plant rules a verbal warning is required for the first offense against rule I (unexcused lateness or absence). Continuing with the events preceding the discharge of employee Humphries, on Tuesday. August 30. Humphries was absent from work without calling in. According to Plant Manager Smith, an employee is expected to call in 4 hours in advance of being out, or if the cause arises in less than 4 hours, he is expected to call as soon as he knows. Other than saying that he had no telephone. Humphries provided no excuse when he reported in the next day). Wednesday. August 31. He was taken again to Department Head Ray's office, and was given a written warning by Su- pervisor Wayne Nichols. C. Exh. 3, dated August 31. 1977, stating that Humphries was being warned for an "un- reported and unexcused absence. Disciplinary action will be taken on the next offense." On Friday morning, September 1. employee Humphries came to work at 6:30, 30 minutes late. lie told Supervisor Nichols he had overslept. Nichols, put Humphries on his job and had him complete the doffing for the first I hour round, but at 7 a.m. Nichols took him off the job and to Department Head Ray's office. Ray told Humphries he was not going to decide now about discipline but that Hum- phries should go home and Ra, would be in touch. When Nichols indicated that Humphries would be bringing his wife in at 2 p.m. (for the second shift), Ray suggested that Humphries stop in his office at 2 p.m. Meantime Department Head Ray and Assistant Plant Manager Smith consulted, as the, so testified. and Smith made the decision, he said, that Humphries was to he fired. He made this decision to discharge, testified Smith, not- withstanding his acknowledgement that ( I ) in the vast ma- jority of cases for absenteeism, following the progression of discipline prescribed by the plant rule, the discipline of a 3- day layoff has preceded the final discipline of discharge: (2) there was absent from the written warning to Humphries notice that he would be fired for the next infraction (it stated only that "disciplinary action" would he taken), which was likewise an uncommon deviation from the prac- tice if the 3-day layoff was to be omitted: (3) that, contrary to the plant rule, a prior verbal warning had not preceded the written warning: and (4) that in his 7 years of employ- ment, employee Humphries had given no previous cause for discharge. Additionally, Assistant Plant Manager Smith directed that the separation notice issued to employee Humphries. G.C. Exh. 6, be checked to indicate (as it was) that he u Some of the other rules pros ide for different ant more evere progres- sion of discipline. and some, such as rule 42 failure to report for 3 consecu- utse work .das prolides discharge rfor the tirlt offene 433 D)E('ISIONS OF NATIONAL. LABOR REL.ATIONS BOARD would not he rehired. Smith testified that he so directed. and would not recommend rehire of Humphries, although in umphries' seven years of employment his work had been good and his attendance record clean until the first aberration in the week of his firing. His reason for discharg- ing and refusing to recommend rehire of Humphries. said Smith, was that after tlumphries received his warning he did not see fit to improve the situation that called for the warning, and that three infractions (2 times late and I day absent) in 5 working days justified both the firing, with omission of the verbal warning and 3 day layoff steps of the four-step procedure, and the decision to bar Humphries from rehire. Assistant Plant Manager Smith did not discuss the dis- 'charge or these alleged reasons with employee Humphries. Instead he told Department Head Ray to discharge Hum- phries. At 2 p.m. on September 1, when Humphries came back to Ray's office, as arranged. Ray told Humphries that because of the "flagrant" situation in violating plant rule I three times in 5 working days it was best to terminate his employment: and he was handed the separation notice, G.C. Exh. 6 dated September I (prepared by Supervisor Nichols), that contained the notation that he would not be rehired.' 2. Comparisons with other cases Assistant Plant Manager Smith testified that the dis- charge. and decision to bar rehire, of employee Douglas Humphries was an application of plant rule I as uniformly applied to any other employee. The evidence indicated otherwise. For example, em- ployee Tony Nelson, also a first shift doffer. not as fast a doffer as Humphries was, hut not active for the UInion as Humphries had been. testified, without contradiction that he, Nelson, had been late for work three or four times per month, including the period of time both before and after Humphries was fired, without any warning or discipline or even docking of pay: that on most of such occasions, either or both employees Nick Nichols (an overhauler or fixer) and Jack Dunn (a spindle plumber) would come for him and take him to work, as that he was coming in on those days 35 to 40 minutes late; and that when he came in late he would find another employee, and even Supervisor Wayne Nichols, covering the job for him. lHe recalled one recent occasion when overseer. now supervisor, Euel Her- ron thanked him for having come in, though late. Employee Nelson further testified that on none of these occasions did he telephone in to the plant to indicate that he was going to be late or not coming in, he simply slept: and that if an employee or employees did not come from the plant to fetch him he frequently did not come in at all. He testified that he was aware of the 4-hour advance call-in rule to indicate lateness or absence but paid it no heed. On the days that he stayed out, said Nelson, he suffered only dock- ing of pay for those days. One of those days included a day in early 1978, about a month before the hearing, when, said Nelson, employee Nick Nichols came to fetch hint: but he 1i Ray conceded that plant rule I says nothing about "flagrant" situations or violations. would not go to work, saying he could not make it, he had gotten drunk the night before. In 1977, said Nelson, he re- ceived one warning slip in connection with one of his unex- cused absences: but that, in the same year. he was talked to only once about coming in late, by Department Head Ray, however, without any accompanying warning, verbal or written. In 1978, to the time of the hearing, there had been no talks or warnings about lateness to employee Nelson. Ironically, on the last day in August 1977, when em- ployee I)ouglas Humphries was handed his one and only warning (for the unexcused absence the previous day) and told employee Tony Nelson about it, said Nelson, he (Nel- son) had come in late without any talking to or warning from anyone and found overhauler Nick Nichols doffing the frame for him. l.ooking at contemporaneous records of unexcused late- ness or absence of other employees, employee Frank McCafferty, who was hired in January 1974, began a series of absences without notice or call-in in early 1976. He was given a written warning on March I. 1976, a 3-day disci- plinary layoff on March 29, 1976. and told he would be terminated next time, and a discharge on July 27. 1976. which said he would be rehired if he could work regularly (G.C. Exh. 7): but, as Assistant Plant Manager Smith testi- fied. McCafferty was either retained or almost immediately reemployed. Employee McCafferty's infractions continued. On Sep- tember 13. 1976, after a consecutive 7-day absence without notice or call-in. McCafferty was given merely a verbal warning. Assistant Plant Manager Smith testified that under Re- spondent's plant rules unreported or unexcused absence is a more serious infraction than unexcused or unreported late- ness, that not coming in at all is a more serious offense than coming in late, and accordingly plant rule 42 provides for immediate discharge for not reporting for 3 consecutive days. The same is not true for consecutive latenesses, he said, which would be governed by the progressive steps of warning and discipline applicable to infractions of plant rule 1. In this connection. Smith also testified that Respon- dent's plant rules on attendance were the same before they were formalized into written form in 1977 (G.('. Exh. 4): and concerning employee McCaferty, said Smith, he should have been fired forthwith on September 13, 1976. Nonetheless, McCafferty was given only the verbal warn- ing. Finally, after more absences without notice or call-in, McCafferty was fired on November 4, 1976 (his second dis- charge in five months), for excessive absenteeism. Employee Dennis Aldridge was hired and fired three times between August 8, 1974, and October 3, 1977, each time discharged for poor attendance, consisting of unre- ported and unexcused absences from work. Prior to each discharge he was taken through the progressive steps of counseling or talking about his problems, warnings, and 3- day disciplinary layoffs. The infractions before the second discharge. January 31, 1977, were labeled by Assistant Plant Manager Smith as "flagrant": yet the discharge (G.C. Exh. 8) indicated that Respondent would rehire employee Aldridge. And, he was rehired less than 2 months later, on March 21, 1977. Again he indulged in absences from work without reporting or calling in. received warnings and a 3- 434 FAYETTE COTTON MIIL. day disciplinary layoff, and was discharged on October 3, 1977, for the third time for his unexcused absences. noting also his prior and second discharge for the same reason. This was a month after the discharge (and only discharge) of employee Douglas Humphries. who was fired with the unqualified notation that he would not he rehired. Yet em- ployee Aldridge's third and contemporaneous discharge (G.C. Exh. I I) contains a notation indicating that he would be rehired if he made a change in his habits! Employee Eddie James Gilpin worked for, and was dis- charged by, Respondent three times, each time of absentee- ism without reporting or sending word. The first such dis- charge occurred in August 1965 (G.C. Exh. 13). The second occurred on March 11, 1976, after 6 days' absence without reporting or sending word (G.C. Exh. 14). Gilpin was reem- ployed for a third time on October 12, 1976, yet when his absences without reporting and then a written warning and three day disciplinary layoff on March 13, 1977, and finally his third discharge on April 11, 1977. Employee Therman Selman was hired and discharged eight times, each time for too many absences without leave. call-in, or excuse, over a period that began in March 1959 and finally ended in March 1977. (There were large gaps in that period when he was not employed by Respondent. such as the 4 years between mid-1969 and mid-1973, and others.) The absences included many that ran 3 or more consecutive days at a time, some as many as 8 or 9 or more consecutive days at a time, some as many as 8 or 9 consecu- tive days. Coming down to the last two hirings and dis- charges, the seventh rehiring was in May 1975. followed by oral warnings, for excessive absenteeism, three written warnings, a disciplinary layoff of 3 days. and discharge in August 1976. Selman was rehired for the eighth time in September 1976, and again received counseling, warnings, and a 3-day disciplinary layoff, for continued excess absen- teeism, and incurred his eighth and final discharge on March 7, 1977. In comparing this record of absences, counseling, warn- ings, disciplinary layoffs, discharges. and reemployments of Therman Selman with the record of Douglas Humphries. who had been absent I day and late twice in I week of 7 years of continuous employment and was immediately dis- charged without benefit of two steps of the disciplinary pro- gression and with the employer's determination that he would not be rehired, Assistant Plant Manager Smith was asked if he thought there was uniform application of the company policy, as to discipline and the determination that Humphries was not eligible for reemployment. Smith blandly replied that he thought that Humphries had re- ceived uniform application of company policy." " Without identifying any specific employees, Assistant Plant Manager Smith testified generally that with the new plant expansion in 1975-76 and the need thereafter for many additional employees including some with ex- perience, Respondent obtained a number of experienced employees by hiring former employees by hiring former employees who had quit or been dis- charged. However, Smith made no effort to explain or justify the multiple hirings and discharges, after the expansion hiring had been inaugurated, in cases of employees such as Selman, Aldndge, Gilpin, and McCafferty. above, who continued to offend against the attendance rules and were re- hired additional times. Nor did Smith provide any explanation for not allow- ing experienced and able employee Humphnes to have at least one such second chance. Later. Smith suggested that the significant factor in im- posing the peremptory discharge and decision not to rehire Humprhies was that his three infractions (of I day and 2 days late) occurred in the span of 5 days. as compared with the records of others not so peremptorily treated whose in- fractions though greater. were spread out over longer peri- ods of time. General Counsel referred to the record of. and contrast in handling, employee Lewis Kemp, a longtime employee like Humphries. On March 8. 1976. employee Kemp was given a written warning of excessive past absences and told he would be disciplined the next time (Resp. Exh. 6). On Sep- tember 16, 1976. after being absent September 11. 13. 14. and 15 without excuse or notice to Respondent 4 out or 5 days. actually 4 consecutive work days because September 12 was a nonwork day. Sunday Kemp was given a further warning and a disciplinary layoff of 3 days (G.C. Exh. 22)., though he should have been peremptorily discharged under plant rule 42. Nevertheless, he was not discharged until No- vember 9, 1976, after further absence without notice (Resp. Exh. 7). Employee Gail Hamm received a first oral warning for excessive absenteeism on March 3. 1976 (Resp. Exh. 3). On December 7. 1976, she received a second written warning which stated that her excessive absences had been reviewed with her and she had been out 69 days in the preceding II months. Asssistant Plant Manager Smith agreed that em- ployee ltamm's 69 absences in approximately a period of a year was a flagrant record of absences. as compared to em- ployee Humphries record of I day absence and 2 days late. Nevertheless, employee Hamm was not discharged until April 24, 1977. after continutied excessive absences and more warnings (G.C. Exh. 13)." Employee David Chesler Wilkinson was another em- ployee with a bad attendance record, hired and fired more than once. His first employment with Respondent was tem- porary: his second employment, beginning July 22. 1974. was permanent and ended in discharge when he walked out of the plant without notice, according to Assistant Plant Manager Smith. He was rehired Ibr a third time, perma- nently, on August 30, 1976. Five weeks later, on October 8. 1976. he received a verbal warning (G.C. Exh. 19) for absenting himself from work 2 consecutive days: while he claimed he had been sick he admitted going out in the cool night air to visit his girl friend, and the absences were not excused. Two months later, on December 10, 1976, he was given a first written warning for 13 days' unexcused ab- sences in his less than 3-1/2 months of employment (G.C. Exh. 20). Within less than 5 days after December 10 he was absent again without excuse and received, on December 15. 1976, a second written warning and a 3-day disciplinary layoff (G.C. Exh. 21) for continuing excessive absenteeism. Thus. notwithstanding the concentration of 14 days' unex- cused absences in a 3-1/2 month period of employment, t1 Respondent's counsel attempted to prove that emploee Hamm's 69 absences in 1976 were excused absences. but the file indicated that the em- ployee sought to supply unsigned doclor's excuse." which the supervisors rejected There was some evidence of a few signed excuses. hut ohsiously from the warnings. and discharge. and Respondent management's view that the absences and employee Hamm as not tired for multiple excused ah- sences 435 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wilkinson was accorded the benefit of multiple warnings and disciplined by only a 3-day layoff. He was discharged a month later, on January 21. 1977, for continued excessive absenteeism. Even for 3 month probationary employees, who violated the attendance rules, Respondent applied the stepwise pro- gression of warnings and disciplinary layoff before dis- charging the employee, said Assistant Plant Manager Smith. Thus, probationary employee John Swayney, hired September 13, 1976, was given a written warning on No- vember 20, for being absent 2 days, November 16 and 17, without calling in. He was given another written warning December 2 for being out again on December I without calling in. Swayney was also given a 3-day disciplinary lay- off, and, when he returned after the layoff, he was late for work, and was discharged on December 10, 1976. Likewise, 3-month probationary employee Delores Swayney, who was hired September 13, 1976, received within 2 months, on November 7, a verbal warning for being absent without notice: then a written warning on No- vember 20 for being absent 2 days without notice or calling in, and a warning of discipline for the next infraction: then a second written warning, on December 2, plus a 3-day layoff, for further absence without notice or call in, with notice that the next similar offense would result in dis- charge; and finally discharge on December 10. 1976, for being absent that day without notice or call in. In all of these cases the employees who were delinquent in observing the attendance rules received multiple warn- ings and 3-day disciplinary layoffs, prior to discharge, for continuing to violate the rules, even in some cases where the infraction was a violation of plant rule 42 (failure to report for 3 consecutive work days) where the penalty was dis- charged forthwith for the first offense. The benefit of the plant rule procedures was not accorded to employee Humphries, who received only one warning and then discharge in connection with his having been ab- sent I day and late twice. For him, there was no precedent second warning and no precedent disciplinary layoff. Respondent contended that there were six other cases where discharge of the employee was not preceded by a disciplinary layoff. However, Respondent has failed to note that in at least five of the six cases, and possibly in the sixth as well, the infractions involved, in addition to violation of plant rule 1, violation of plant rule 42 (failure to report for 3 consecutive work days) where the rule called for immedi- ate discharge without preliminary warnings of disciplinary layoff. Thus, employee Sandra Byars, received only a warning on November 23, 1976, for 4 consecutive days of unexcused absences on November 18, 19, 20, and 22 (Resp. Exh. 24). November 21 was a nonwork day, Sunday. On January 31, 1977, she was discharged (Resp. Exh. 25), the discharge noting that there had been prior oral and written warnings for excessive unexcused absences, and failure to report without word for three consecutive days, January 28, 29, and 31, 1977 (January 30 was a nonwork day, Sunday). Plant rule 42 had been violated twice by employee Byars in the space of 2 months, yet it was not until the second time that she was peremptorily fired. Employee Brenda Bircheat worked 3-1/2 months for Re- spondent. She was hired on Novemnber 17, 1976. was given an oral warning on January 31, 1977 (Resp. Exh. 12), and a written warning on February 2. 1977 (Resp. Exh. 13) for continued unreported absences, and then discharged on March 7, 1977, (Resp. Exh. 14) for the same cause, with the indication that she had not reported since, and last worked on, March 4, 1977, which in itself justified the peremptory discharge without any prior. lesser discipline. Employee John Hallawood received a written warning on Jul)' 19. 1976, for being absent without calling or send- ing word on July 18 (Resp. Exh. 18). On February 2, 1977. he received a second written warning, for staying out from work without calling in or sending word (Resp. Exh. 19). On February 24, 1977, he was fired for excessive absences, the discharge noting that though work was available he would not report for work regularly and that he last worked 2 hours on February 20 (Resp. Exh. 20). Hence he had failed to report 3 consecutive work days, which was a viola- tion of plant rule 42 subject to immediate discharge without prior discipline. Employee Truman Morgan was given a verbal warning on March 29, 1977, for previous absence without calling or sending word (Resp. Exh. 2 1). He was given a written warn- ing on May 24. 1977, for further excessive absences without notice or calling in (Resp. Exh. 22). He was discharged on June 9, 1977 (Resp. Exh. 23), the discharge noting that at- tendance and job performance was not satisfactory, and that he had worked only 1 hour since June 1. Hence he had been absent without calling or sending word for 7 or 8 days immediately prior to discharge in violation of plant rule 42, subject to immediate discharge without prior discipline. Employee Scott Kelley received a verbal warning on January 17, 1977. for not reporting to work on the previous Saturday and prior occasions (Resp. Exh. 26). On August 2, 1977, he was given a written warning for unreported and unauthorized absences on July 30 and August 1, indicating he would be subject to disciplinary layoff or discharge for the next offense (Resp. Exh. 27). On September 16, 1977, employee Kelley was discharged for unreported and unau- thorized absences though work was available, the discharge noting that he had last worked September 13 (Resp. Exh. 28). Thus, Kelley had absented himself for 3 consecutive days, in violation of plant rule 42, subject to immediate discharge without benefit of a prior disciplinary layoff. The sixth case advanced by Respondent was that of em- ployee Robert Walker. Walker was given a first warning (verbal) on December 7, 1976, for being absent the previous day without call or sending word (Resp. Exh. 15). He re- ceived a second warning (written) on January 4, 1977 for excessive unexcused absences, noting he was orally warned many times and if there was no improvement disciplinary action would be taken (Resp. Exh. 16). On January 10, 1977 he was discharged for unsatisfactory attendance, the discharge noting that he had last worked January 8 (Resp. Exh. 17), absenting himself for 2 consecutive days prior to discharge. Thus, in I month, Walker had been absent with- out word or calling in for a considerable number of days, the last 2 of which before discharge had been consecutive, and though Respondent did not provide the details, from the nature of the second warning the prior absences were 436 FAYETTE COTTON MILL clearly multiple absences (that may have also violated plant rule 42 if three or more of them were consecutive). It should also be observed that in the discharge of em- ployee Walker he was rated a "poor" employee, in contrast to employee Douglas Humphries who was rated a "good" employee. Likewise, employees John Hallawood and Tru- man Morgan were rated "poor" employees, and employees Sandra Ryan, Scott Kelley, and Brenda Bircheat were rated only "fair" employees. Even more significant, in comparing these six cases with the case of employee Douglas Humphries is the fact that each of the six employees had been given two or more warnings for their infractions of the attendance rules, whereas Humphries was given only one warning. 3. Conclusion In my view the evidence demonstrated that, notwith- standing Douglas Humphries all-around good record as an employee of 7 years, Respondent reached for the first ap- parent opportunity that arose to rid itself of employee Humphries, because of Respondent's hostility to the Union and to Humphries as an employee who openly expressed and demonstrated support for the Union. Indeed, Respon- dent overreached, by violating its own plant rules and prac- tice, first, in summarily discharging employee Humphries, and bypassing the established system of progressive warn- ings and discipline, for his relatively minor attendance in- fraction, as compared to Respondent's application, and even relaxed application, of such progression to much more serious infractions by other employees; and second, by compounding the summary discharge with a summary deci- sion not to rehire employee Humphries, contrary to Re- spondent's past and contemporaneous practice of rehiring experienced employees regardless of bad attendance rec- ords far worse than the total infractions by Humphries, and even multiple discharges therefor. For 7 years Douglas Humphries had been a good em- ployee in his work performance, deportment, and conform- ance with the plant rules of conduct. He had given Respon- dent no cause for warnings or discipline. While supervisors and management did not appreciate his espousal of the union cause, nevertheless his union involvement did not ad- versely affect his performance of work or good behavior. Yet, the first time in 7 years, when employee Humphries reported in late on August 27, 1977, the matter was brought instantly to the attention of top management of the plant by his shift supervisor Nichols taking Humphries to De- partment Head Ray to decide what to do about Humphries coming in late. This was most unusual, not only for an employee being late the first time, not because shift supervi- sors were in charge of attendance and attendance records and of whether lateness or absence was excused or unex- cused and of dealing with the delinquent employees. The action indicated that employee Humphries was a marked man, and, as it turned out, marked for discriminatory treat- ment. The same special actions, the shift supervisor taking em- ployee Humphries to top management of the plant, oc- curred on August 31, after Humphries had been absent Au- gust 30 without calling in, and again on September I, when he was late a half-hour. For coming late the first time, employee Humphries was talked to by Supervisor Nichols without warning (counseled is an equivalent expression used by some of the supervi- sors). For his first unexcused absence of a day, subsequent to his first time late, Humphries was given a written warn- ing. If applicable plant rule I had been followed, he would have been given a verbal warning, but the step was skipped. For coming late the second time, Humphries was sent home and discharged the same day. Under applicable plant rule 1. he would have been given a disciplinary 3-day layoff. Again, another step in the four step procedure was skipped. Although Respondent contended that under plant rule 1, it might shorten the four steps to three by making the third step discharge after two prior warnings, the officer in charge of the plant, Assistant Plant Manager Jack Smith, conceded that so far as he knew in plant rule I cases the discipline of a 3-day layoff preceded the final discipline of discharge. Moreover. Respondent was unable to produce a case other than Humphries' to substantiate omission of the step. Respondent brought in a half-dozen cases supposed to substantiate the contention, but these were not comparable cases. In these cases, the employees involved also violated plant rule 42 (failure to report for 3 consecutive work days) under which the discipline was discharge for the first of- fense, without prior warnings or disciplinary layoff. Even in these supposed examples, and in other examples put in by General Counsel, there were instances where the employees had been absent without calling in or sending word for 3 or more consecutive days, and the penalty of discharge forth- with had not been applied by Respondent when it might have been. Cases such as those of employee McCafferty, Selman, Kemp, Byars, and others, also demolished Respondent's further argument that there was something especially fla- grant about Humphries' three infractions of plant rule I in 5 working days that justified, if not required, invoking pe- remptory discharge without going through the prior steps of warnings and disciplinary layoff contemplated by the rule. Those cases furnished examples of successive absences by the employees without notice or calling in, concentrated in 3 and more successive days, where Respondent withheld imposing the penalty of the discharge prescribed by plant rule 42 and passed over the infractions with no more than a warning. Further weakening any attempted justification for bypassing the stepwise procedure of plant rule 1, was the admission by Respondent's chief plant officer Smith that an unexcused absence is a more serious infraction than an un- excused lateness, that not coming in at all is worse than coming in late, hence rule 42 provides for immediate dis- charge for not reporting for three consecutive days but does not apply to tardiness whether consecutive or not or to the lesser absences governed by plant rule I. Further underscoring the disparate treatment accorded employee Humphries, was the absence of any other in- stance of a discharge for infractions of plant rule 1 where the employee did not receive at least two prior warnings. From the cases submitted by both sides, the evidence showed at least two warnings, and sometimes more, preced- ing the discharges for all but employee Humphries. Yet his total infraction, I day absent and 2 days tardy in 7 years of continuous employment, was far less serious than any of the cases covered by the evidence. 437 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Last, hut not least, in this record of disparate treatment, was Respondent's decision, made simultaneously with the discharge, to bar employee Humphries from reemployment. Respondent claimed it had a policy since its 1975-76 ex- pansion to rehire former experienced employees and, whether the practice started then or earlier, its rehires in- cluded employees who had been discharged for, among other reasons, excessive unexcused absenteeism, rehired in some instances not merely once but two or more times even though their further discharges were for excessive unex- cused absenteeism. Employees McCafferty, Aldridge, Gil- pin, Wilkinson, and Selman, were among the examples of rehired employees who were discharged two, three, and even eight times (in Selman's case) for excessive, unexcused absenteeism. In employee Aldridge's third discharge for un- excused absenteeism, a month after employee Humphries was discharged, it was stated that Aldridge would be re- hired again if he changed his habits. Respondent's harsh, summary, and disparate treatment of Union Activist Humphries, in disregard of the applicable plant rule and practice concerning the progression of disci- plinary steps before discharge and of the policy and prac- tice regarding rehiring, compared to the normal as well as more lenient treatment accorded the many other employees who were not union activists, was obviously discriminatory. Such discrimination, without plausible explanation by Re- spondent coupled with its hostility to the Union, gives rise to the inescapable inference that Douglas Humphries was discharged and barred from reemployment in reprisal for his union activities and to discourage union membership and support among the employees, in violation of Section 8(a)(3) and (1) of the Act. As stated in McGraw-Edison Company v. N.L.R.B., 419 F.2d 67, 75 (8th Cir. 1969), "Ille- gal motive has been held supported by a combination of factors such as coincidence in union activity and discharge ... general bias or hostility toward the union . . . variance from the employer's normal employment routine ... and an implausible explanation by the employer for its action...." For comparable Section 8(aX3) and (1) findings, derived from misuse of, or deviation from, plant or company disci- plinary systems and practice to discriminate against union sympathizers, see The Keller Manufacturing Company, 237 NLRB 712 (1978); Gillette's, The Country Place, 226 NLRB 819, 822 (1976); Barko Hydraulics, Inc., 225 NLRB 1379, 1382-83 (1976); and Ramelli Building Maintenance Service, Inc., 224 NLRB 815, 817-818 (1976). CONCLUSIONS OF LAW 1. By warning employees of the futility of voting the Union in; by threatening plant closure if they voted the Union in; by coercively interrogating employees on why they desired and supported the Union, or why the Union withdrew its election petition just before the election, and on what withdrawal would do to their support of the Union; and by disparaging the Union in the eyes of the employees, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 2. By summarily discharging and denying the right of reemployment to employee Douglas Humphries, on Sep- tember 1, 1977, for infractions of the plant attendance rule, disregarding and shortcutting the plant rule and practice concerning the progression of warnings and discipline for such infractions and disregarding the plant policy and prac- tice governing rehire of experienced employees, in reprisal for employee Humphries union activities and to discourage union membership and support among the employees, Re- spondent engaged in an unfair labor practice within the meaning of Section 8(a)(3) and (I) of the Act. 3. The unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. TtIF REMEDY It will be recommended that the Respondent: (1) Cease and desist from its unfair labor practices. (2) Offer to reinstate employee Douglas Humphries, and give him backpay from the date of his discharge, September I. 1977, said backpay to be computed on a quarterly basis set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), approved in N.L.R.B. v. Seven-Up Bottling Co., 344 U.S. 344 (1953), with interest as prescribed in Florida Steel Cor- poration, 231 NLRB 651 (1977).'? (3) Post the notices provided for herein. And because the Respondent violated fundamental em- ployee rights guaranteed by Section 7 of the Act, and be- cause there appears from the manner of the commission of this conduct an attitude of opposition to the purposes of the Act and a proclivity to commit other unfair labor practices, it will be further recommended that the Respondent: (4) cease and desist from in any manner infringing upon the rights guaranteed by Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941); P.R. Mallory and Co. v. N.L.R.B. 400 F.2d 956, 959-960 (7th Cir. 1968), cert. denied 394 U.S. 918; N.L.R.B. v. Bama Company, 353 F.2d 323 324 (5th Cir. 1965). Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, there is hereby issued the following recommended: ORDER'7 The Respondent, Fayette Cotton Mill, Fayette, Ala- bama, its officers, agents, successors, and assigns shall: I. Cease and desist from: (a) Warning employees of the futility of voting the Union in. (b) Threatening plant closure if employees vote the Union in. (c) Coercively interrogating employees on why they de- sire and support the Union, or why the Union withdrew its election petition, or what withdrawal would do to their sup- port of the Union. (d) Disparaging the Union in the eyes of the employees. ' See. generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 1' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived or all purposes. 438 FAYETTE COTTON MILL (e) Discharging or disciplining employees. or barring them from reemployment, for infractions of the plant at- tendance rules without regard to the prescribed system of warnigns and discipline and the policy for rehiring experi- enced employees. (f) Discouraging employees from support of or member- ship in the Union or other labor organization by discharge or other discrimination affecting their tenure or conditions of employment. (g) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Make employee Douglas Humphries whole, in the manner set forth in the section of this decision entitled "The Remedy," for any loss of earnings incurred by him as a result of his discharge on September , 1977. (b) Offer to said employee immediate and full reinstate- ment to his former job, or if the job no longer exists, to a substantially equivalent postion, without prejudice to his seniority or other rights and privileges. (c) Preserve, and, upon request, make available to the Board and its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to ascertain the backpay due under the terms of this Order. (d) Post in the plant at Fayette, Alabama, copies of the attached notice marked "Appendix."'8 Immediately upon receipt of said notice, on forms to be provided by the Re- gional Director for Region 10 (Atlanta, Georgia). Respon- dent shall cause the copies to be signed by one of its autho- rized representatives and posted, the posted copies to he maintained for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 10. in writ- ing, within twenty days from the date of this Order, what steps Respondent has taken to comply herewith. " In the event that this Order is enforced b a Judgment of a United States Court of Appeals. the words in the notice reading "Posted b' Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board." 439