Mooresville Mills

572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD utility painters and parts room clerks employed at the Employer's Fresno shop, or at gravel pits or construction sites operated by the Employer, excluding all other employees, watchmen, guards, office and clerical employees, and supervisors as defined in the. Act, and pursuant to Section 9 (a) of the Act, said organization is the exclu- sive representative of all such employees for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. MEMBERS STYLES and PETERSON took no part in the consideration of the above Supplemental Decision and Certification of Representa- tives. MooIu svILLE MILLS and TEXTILE WORKERS UNION OF AMERICA, CIO. Case No. 34-CA-202. June 10, 1952 Decision and Order On August 27, 1951, Trial Examiner Allen MacCullen 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 In- termediate Report attached hereto. Thereafter, the General Counsel, the Respondent, and the Union filed exceptions to the Intermediate Report; the General Counsel also filed a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications. 1. As set forth in the Intermediate Report, on March 22, 1950, shortly after the Union filed a petition for an election with the Board, the Respondent announced certain benefits to "improve" the work- ing conditions of its employees. These were : 2 hours minimum re- porting pay, a 5-cent differential in pay for the third shift, and five holidays, with time and one-half for work performed on such holi- days..The Trial Examiner found, and we agree, that by granting the first two benefits the Respondent violated Section 8 (a) (1) of the Act. Because it was not affirmatively shown that the employees had not previously enjoyed these holiday benefits, he found nothing im- proper in the holiday announcement. We do not agree with this latter conclusion. 99 NLRB No. 96. MOORESVILLE MILLS 573 The announcement itself describes the various items of benefits as "improvements" in working conditions, and as "other things" in line with the Respondent 's policy of generosity . In any event, the Board has consistently held that announcements of raises or other material benefits timed with self-organizational activities are improper in the absence of proof that the particular benefits fall within the pattern of established company practice Not only is this record barren of any indication that the announcement had a casual relationship with anything other than the Union 's petition which immediately preceded it, but the record shows affirmatively that the particular benefits were something new for the employees. We therefore find that by granting the holiday benefits, the Re- spondent violated Section 8 (a) (1) of the Act. 2. The Trial Examiner found that McGraw was incompetent and that therefore the Respondent did not, as alleged in the complaint, violate the Act by discharging him. We do not agree. As set forth in the Intermediate Report, except for war-time army service and short , periods of economic layoffs, McGraw had been in the Respondent's employ since 1928 , or about 22 years. In the summer of 1949, he joined the Union and became an organizer. Between that time and March 7, 1950, when he was discharged, he was very active in campaigning for union members , solicited em- ployees in the plant, at their homes, and in neighboring towns, and attended the Union's State convention and a number of meetings in the union hall located across the street from the Respondent 's mill. The Respondent asserts that it discharged McGraw because, starting at the very beginning of January, his production record dropped seriously and progressively. This assertion is supported only by the oral testimony of Warren and Sloop , McGraw's im- mediate supervisors. The Respondent offered no company records, respecting either the efficiency of McGraw as a fixer over a number of weavers, or of the individual weavers in his section , whose pay was pegged to production records. The record also contains uncontra- dicted testimony that in June 1949, McGraw was taken off loom, fixing because of poor work ; however, he was placed in charge of a new section again in October, and, admittedly , his production record through the end of December 1949 was satisfactory. Against the foregoing, the record contains much, not all reported by the Trial Examiner, indicating that McGraw could not have been seriously inefficient during the period before his discharge , and con- sequently that his production record was not the true reason for his final release. Warren, the second hand over McGraw, testified that in the first week in January, McGraw's production was good but his 'Jamestown Veneer and Plywood Corp., 93 NLRB 101, 114, affirmed on this point, N. L. R. B. v Jamestown Veneer and Plywood Corp ., 194 F. 2d 192 (C. A. 2). 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seconds low. The General Counsel placed into evidence two of McGraw's pay slips. The first, for the week ending January 14, shows, and the Respondent does not deny, that for his work that week McGraw received the "high-dollar," a bonus for outstanding produc- tion by his group of weavers, both as to quantity and quality. This fact alone reflects seriously upon Sloop's testimony that he last warned McGraw in the "second week" or "in the middle of January." 2 The second slip shows that for the week ending February 4, the very day on which the Respondent claims to have discharged him, McGraw received a bonus for the outstanding quality of the production of the looms in his section. Further, when Sloop told McGraw on February 4 that he was being released because of inefficiency, McGraw was not discharged, as would be expected, but assigned to another branch of the Respondent to do the same type of work. And, finally, on his new assignment, according to the testimony of Tom Leonard, his new supervisor, McGraw fixed satisfactorily for 4 weeks, although the looms there were more difficult to maintain than those in his old section. He was finally separated on March -7, 1950. This impressive evidence on McGraw's work performance renders unpersuasive the Respondent's contention as to the reason for his discharge. It serves, rather, to accentuate the other facts in the record which point to the conclusion, alleged in the complaint, that the Re- spondent's real motive was to rid itself of a very active union sup- porter. Thus, for 22 years, and until McGraw became a union or- ganizer, the Respondent deemed his services adequate. In June of 1949, when apparently his work fell off, but before his union activities gained momentum, he was put on other work and not discharged. His discharge occurred precisely during a period when the Respondent was engaged in a number of other illegal acts, including discrimina- tory discharges and other improper coercive conduct, designed to implement its clear resolve to prevent self-organization among its employees. The wide-spread character and intensity of McGraw's open activities on behalf of the Union could not have escaped notice by the Respondent's officers, particularly in view of their knowledge as to the identity of other individual union supporters involved in this case. Upon all the foregoing facts, therefore, and on the record as a whole, we are convinced that the Respondent discharged'McGraw for the purpose of impeding the Union's organizational campaign and not, as it asserts, because of his production records. Accordingly we find, contrary to the Trial Examiner, that it thereby violated Section 8 (a) (3) of the Act. 8 Sloop also said that he warned McGraw in December. McGraw testified without con- tradiction that the supervisors regularly spoke to all the fixers whenever production fig- ures dipped, and that while they may also have spoken to him individually it was only as part of the general practice of keeping all the employees on their toes. MOORESVILLE MILLS 575 The complaint also alleges that the Respondent violated Section 8 (a) (3) by evicting McGraw from the company-owned house he occupied before his discharge. In May 1950 the Respondent started to carry out a 2-year-old plan to dispose of the approximately 468 dwellings which it originally owned and maintained in Mooresville and in which some of its employees lived as paying tenants. By June 1951 the majority of the houses had been sold. When McGraw ceased working he was permitted to remain in his house until it could be sold. He moved out after its sale, 6 months or more after his discharge. It thus appears that the eviction of McGraw was occasioned only by the Respondent's over-all policy respecting its housing activities, and was not related to his or other employees' union activities. We find, there- fore, that this allegation of the complaint is not supported by the record. Order Upon the entire record in this case , and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Rela- tions Board hereby orders that the Respondent, Mooresville Mills, Mooresville, North Carolina, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Textile Workers Union of America, CIO, or in any other labor organization of its employees, by discharging any of them because they have become members of or have been acting on behalf of any labor organization , or by discrim- inating in regard to their hire or tenure of employment or any term or condition of employment. (b) Interrogating employees concerning their own or other -em- ployees' union membership and activities , threatening employees with economic reprisal if they join a union or engage in union activity, granting economic and other benefits to employees as an inducement to refrain from union activities , or in any manner interfering with, restraining, or coercing its employees in the right to self -organization, to form labor organizations, to join or assist the above-named labor organization or any other labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action , which the Board finds will effectuate the policies of the Act. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Offer to Evelyn Hawkins, James A. Davis, and W. B. McGraw immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make whole each of them in the manner set forth in the section of the Intermediate Report entitled "The Remedy." 3 (b) Upon request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, time cards, personnel records and reports, and all other records necessary to analyze the amount of back pay and the right of reinstatement under the terms of this Order. (c) Post at its plant in Mooresville, North Carolina, copies of the notice attached hereto and marked "Appendix." 4 Copies of such notice, to be furnished by the Regional Director for the Fifth Region, shall, after being duly signed by the Respondent's authorized repre- sentative, be posted by the Respondent immediately upon receipt thereof, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Fifth Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed, insofar as it alleges that Respondent discharged W. Edd Hendren and J. D. Erwin, in violation of Section 8 (a) (3) of the Act. MEMBERS MURDOCK and PETERSON took no part in the consideration of the above Decision and Order. Appendix NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT discourage membership in TEXTILE WORKERS UNION OF AMERICA, CIO, or in any other labor organization of I In the case of McGraw, however, in accordance with the Board's usual practice, the period from the date of the Intermediate Report to the date of the Decision and Order herein is to be excluded in computing the amount of back pay awarded . See Green Bay/ Drop Forge Co., 95 NLRB 399. In the event that this order Is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals enforcing an Order." MOORESVILLE MILLS 577 our employees, by laying off any of our employees, or by discrim- inating in any other manner with regard to their hire or tenure of employment, or any term or condition of employment, except to the extent permitted by Section 8 (a) (3) of the Act. WE WILL NOT interrogate our employees concerning their own or other employees' union affiliation, activities, or sympathies; threaten them with economic reprisal because of their union affiliation or sympathies; or grant economic or other benefits to discourage membership in the above-named union, or in any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or 1 coerce our employees in the exercise of their right to self -organi- zation, to form labor organizations, to join or assist TEXTILE WORKERS UNION OF AMERICA, CIO, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL OFFER Evelyn Hawkins, James A. Davis, and W. B. McGraw immediate and full reinstatement to their former or sub- stantially equivalent positions, without prejudice to any seniority or other rights and privileges previously enjoyed. WE WILL make whole Evelyn Hawkins, James A. Davis, and W. B. McGraw for any loss of pay suffered as a result of the discrimination against them. All our employees are free to become or remain members of the afore-mentioned union, or of any other labor organization, or to re- frain from such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 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. MOORESVILLE MILLS, Employer. Dated ------------------------ By --------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days and must not be altered, defaced, or covered by any other material. 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Intermediate Report STATEMENT OF THE CASE Upon charges duly filed by Textile Workers Union of America, CIO, herein called the Union, the General Counsel of the National Labor Relations Board; by the Regional Director for the Fifth Region (Baltimore, Maryland), issued a complaint dated May 14, 1951, against Mooresville Mills, Mooresville, North Carolina, herein called the Respondent, alleging that the Respondent had en- gaged in and was engaging in unfair labor practices within the meaning of Section 8 (a) (1), (3), and (4) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act., Copies of the charges, complaint, and notice of hearing were duly served upon the Re- spondent and the Union. With respect to the unfair labor practices, the complaint charges in substance that between February 21, 1950, and April 12, 1950, Respondent discriminatorily discharged Evelyn D. Hawkins, W. B. McGraw, W. Edd Hendren, J. D. Ervin, and James A. Davis, and has since failed and refused to reinstate said employees by reason of their union activities, and has refused to reinstate the said Hawkins for the further reason that she caused charges of unfair labor practices to be filed with the Board ; and that Respondent interrogated its employees concern- ing their union activities ; granted wage increases and other economic benefits while its employees were engaged in self-organization ; prevented and inter- fered with the distribution of union literature ; and threatened and coerced its employees to refrain from becoming or remaining members of the Union or engaging in concerted activities, all in violation of Section 8 (a) (1), (3), and (4) of the Act. In its answer duly filed Respondent admitted the commerce facts alleged in the complaint, but denied the conclusion that it is engaged in commerce ; ad- mitted that the Union is a labor organization ; admitted the discharge of.the five employees on the dates alleged in the complaint ; but denies that it has violated any of the provisions of the Act. Pursuant to notice, a hearing was held on June 25, 26, 27, and 28, 1951, at Statesville, North Carolina, before Allen MacCullen, the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel and Respondent were represented by counsel, and the Union was represented by one of its organizers, and all parties participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the close of General Counsel's case, Respondent moved to dismiss the com- plaint, which was denied? At the close of the hearing, General Counsel moved to conform the pleadings to the proof as to names, dates, and other matters not relating to substance, which motion was granted. All of the parties waived oral argument, and no briefs have been filed by any of the parties. Upon the entire record in the case and from observation of the witnesses, the undersigned makes the following: I The General Counsel and his representative at the hearing are referred to herein as the General Counsel. The National Labor Relations Board is called the Board. 2 This motion appears on page 405 of the transcript. This was an error in assembling the pages of the transcript, and the matter appearing on page 405 should follow imme- diately after page 349 of the transcript. It is, therefore, ordered that page 405 of the transcript be, and the same is hereby, numbered 349-A and be considered as following page 349 of the transcript. , MOORESVILLE MILLS FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT 579 Respondent is, and has been at all times material hereto, a corporation organ- ized under and existing by virtue of the laws of the State of North Carolina, maintaining its principal office and place of business in Mooresville, North Carolina, at which place it has been and is now engaged in the manufacture of cotton cloth and towels. In the course and conduct of its business at its Mooresville mill Respondent purchases annually raw materials valued at in excess of $500,000, of which 90 percent is purchased, transported, and delivered in interstate commerce from and through States of the United States, other than the State of North Carolina, to its Mooresville mill ; and Respondent manufactures, sells, and distributes finished products of a value in excess of $1,000,000 annually, of which in excess of 90 percent is sold and shipped to customers in States of the United States other than the State of North Carolina. The Trial Examiner finds that Respondent is engaged in commerce within the meaning of the Act. It. THE ORGANIZATION INVOLVED Textile Workers Union of America, CIO, is an organization admitting to mem- bership Respondent's employees, and exists for the purpose of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. III. THE UNFAIR LABOR PRACTICES A. Background of alleged violations Credited and uncontradicted testimony of the witnesses establishes that early in 1949 the Union was engaged in an attempted organization of Respond- ent's employees, and that these activities continued up to the latter part of June 1950. Respondent's counsel admitted at the hearing that Respondent was aware of the union activities of its employees. B. Interference, restraint, and coercion 1. Interrogation, etc. The bill of particulars filed by General Counsel alleged that the interrogation of employees and the restraint and coercion of employees alleged in paragraph XII of the complaint was engaged in by Overseer Maurice Sloop, Foreman Nip Drye, second-hand Adams, second-hand C. B. Cabin (corrected by an amendment to C. G. Caviness), and second-hand Ed Warren It will be recommended that the allegations of the complaint, supplemented by the bill of particulars, that Respondent, acting through these alleged supervisors, interfered with, restrained, or coerced its employees be dismissed for the reason that General Counsel offered no evidence in support of this allegation.' ' General Counsel offered testimony of questioning of employees by Sloop and Caviness which occurred sometime in the summer of 1949. As the first charge was not filed by the Union until March 10, 1950, evidence of Respondent's activities prior to September 10, 1949, cannot be considered in findings of unfair labor practices General Counsel admitted that such evidence was offered only as background. As Respondent conceded that it was aware of the union activities of its employees, it is not necessary to consider such evidence in that connection. As indicative of Respondent's attitude to the Union, such evidence Is cumulative of Respondent's attitude as shown by more current actions. 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD James A. Davis , employed by Respondent up to April 12, 1950, testified cred- ibly that on the day he was discharged he was called to the office of R. D. Bar- rett, superintendent of weaving ; that Mrs. R. D. Howard , one of Respondent's weavers, and James H. Spears, overseer of weaving, were present ; that Barrett accused him of refusing to repair Mrs. Howard 's looms unless she joined the Union; that after some further conversation , Barrett said to Mrs. Howard, "She didn ' t have to join the union to get her looms fixed, that the Mooresville Mills would never sign a closed contract with the Union." [ Emphasis supplied.]' Davis further testified that at the conference in Barrett 's office when he, Davis, was discharged, Spears asked Mrs. Howard if she did not tell him , Spears, that Davis would not fix her looms if she did not join the Union ; that Mrs. Howard replied that she did not say that , but that she told Spears , Davis said that she, Mrs. Howard, had more flags (meaning signals that her looms were out of order ) than all of the other employees on that shift ; that Spears then said, "Well, he signed you up, didn't he?" and Mrs. Howard replied, "Yes, he signed me up." Mrs. Howard and Spears were not questioned as to this alleged conversation bet« een them . Barrett s recollection as to what occurred at the conference was rather hazy . He testified that "somewhere in the conversation with Mrs. How- ard she said that Austin had told her that if she didn't join the Union they would have a `stretch-out' system there in the plant. It was at this point, I believe, that Henry Spears asked Mrs. Howard what it was that Austin had said about making her join the Union." As Davis' testimony stands uncontradicted, it is credited. Lloyd Lawing, overseer , testified on cross-examination that the night before W. Edd Hendren was discharged , Hendren went to the rest room and remained there about half an hour, that another employee by the name of Nanney was in the rest room at the same time ; that sometime after Hendren and Nanney left the rest room , he, Lawing , asked Nanney if Hendren was talking to him about the Union, trying to get him to join it, and if that was why they were in the rest room, and Nanney told him that was the subject of the conversation. Lawing's testimony is credited. James A. Davis testified credibly that several weeks before he was discharged, he had the following conversation with William Pruitt, overseer : I was standing at the end of the alley and Mr. Pruitt came up and said "What do you think of that over there?"-pointed toward the Union hall. I said, "What kind of an opinion do you want ?" I said , "I will have to know that before I can answer that question ." He said, "Well , just what do you think of it ?" I said, "Well, I think it is a good thing if it is carried out properly." He said, "Well," he said , "I was here during the other strike, I saw little children and women set out in the street-never want to see that again.' Bessie Bowlin testified credibly that she was formerly employed by Respondent at the time James A. Davis was there and worked on the same shift, that the day Davis was discharged, Spears called her to the office about the beginning of the shift and asked her if Davis had had any conversations with her about joining the Union. On cross-examination, Bowlin testified credibly that she told Spears that Davis had talked to her about joining the Union. d Barrett was not questioned as to the statement attributed to him by Davis that Respondent would not sign a closed contract with the Union. Respondent also called Mrs. Howard and Spears to testify concerning the conference at which Davis was discharged, but Respondent's counsel ue%er questioned them as to the statements attributed to Barrett. Davis' testimony, therefore, stands uncontradicted. MOORESVILLE MILLS 581 Spears testified on cross-examination that about 2 or 3 weeks before the Board election in June 1950, he had a conversation with an employee named John Barrier ; that he did not recall how the conversation came up, that he said to Barrier, "John, we have got along pretty well for a long time and I would hate to see anything come into the mill that would cause us all a lot of trouble." Evelyn D. Hawkins, employed by Respondent until February 21, 1950, at which time she was discriminatorily discharged as herein found, testified credibly' that shortly before the Board election on June 30, 1950, she had a conversation with W. B. Thomas, superintendent of Mooresville Mills, with reference to her wish to be reinstated to her job; that in the conversation Thomas asked her, Hawkins, how long she had been working for Respondent, and she replied that she had worked during both of the 'strikes in 1934 and 1935, and Thomas then asked her how she, Hawkins, "got messed up in this union," and Thomas then made some comments about how good the Respondent was and how bad a union plant was, and Thomas then made the following statements : He said the company had warehouses full of cloth, that they didn't have to run the mill, they could close the mill down and stay closed down. He could sit back in his chair and say no to the union as long as the next one could. Hawkins further testified credibly that in the conversation with Thomas the latter said: If I was to go to Cornelius Mills to try to find a job, the Cornelius Mills would ask me where I had worked, and if I told them I had worked in Moores- ville, then Cornelius would ask me if there hadn't been a little bit of labor trouble. I would say "yes" and Cornelius Mills would ask me was I in it, and I would say "no", and they would tell me to come back the following day to see about the job. In the meanwhile then, Cornelius Mills would call the Mooresville Mills and I wouldn't get a job the next day when I went back there.' Conclusions as to Interrogation Barrett's statement to Mrs. Howard that "She didn't have to join the union to get her looms fixed, that the Mooresville Mills would never sign a closed contract with the union" viewed in its context was not threatening or coercive. One of the causes for Davis' discharge alleged by Respondent, as herein found, was the conduct of Davis in interfering with other employees during working time to urge them to join the Union. It appears probable from all of the testimony that Bar- rett believed that Davis may have impliedly treatened Mrs. Howard if she did not join the Union. As this developed during the conference in Barrett's office, the latter was justified in assuring Mrs. Howard that she did not have to join the Onion to get her looms fixed. Barrett's further statement that Respondent would never sign a closed contract with the Union clearly implied a closed shop which would be void under the Act. Under all the circumstances, the Trial Examiner does not find that this statement was violative of the Act. Spears' interrogation of Mrs. Howard that Davis had "signed you up" presents some difficulty in view of the Board's frequent holdings that interrogation of employees as to their union membership is coercive per se. Viewed in its con- text, however, Spears' statement to Mrs. Howard was more in the nature of a statement of fact, rather than a question. From all of the testimony it appears probable that Spears had received information from some source that Davis had Thomas was not called as a witness by Respondent , nor was the failure to call him explained. Hawkins' testimony as to her conversation with Thomas stands uncontradicted. 6 Hawkins admitted on cross-examination that she understood that Thomas has no con- nection with Cornelius Mills. 215233-53-38 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD secured Howard 's signature to an application and when Mrs . Howard denied that Davis had refused to fix her looms unless she joined the Union , it was natural for Spears to say, "Well, he signed you up, didn't he." Under all the circum- stances, the Trial Examiner finds that this was not interrogation proscribed by the Act, but was a statement by Spears of something he already knew. Lawing's questioning of Nanney as to why the latter and Hendren were in the rest room also presents a question not without difficulty . That Lawing has a right to question Nanney as to why he and Hendren were in the rest room for considerable time was within the supervisor 's rights. To question Nanney, however, if Hendren was seeking to get Nanney to join the Union clearly had a coercive effect on Nanney, and the Trial Examiner finds that such questioning was in violation of the Act. The Trial Examiner does not find any violation in the conversation between Davis and Pruitt in which the latter asked Davis' opinion as to the Union. Pruitt's statement that he was there during the other strike and saw little children and women set out in the street, and that he never wanted to see that again, was merely the expression of his opinion. Spears' interrogation of Bowlin if Davis had had any conversations with her about joining the Union was clearly coercive on Bowlin . Unquestionably Spears would have been within his rights in questioning Bowlin if Davis had interfered with her during working hours in his investigaton of the activities of Davis, but to add to that if Davis was seeking to get her to join the Union was clearly coercive, and the Trial Examiner so finds. Spears' testimony as to his conversation with Barrier was clearly an expres- sion of Spears' opinion, and the Trial Examiner finds that such statement was not violative of the Act. Thomas' two statements to Hawkins that they could close the mill down and stay closed down, and could say no to the Union and his threat to her if she applied to another mill for work were clearly threatening and coercive, and the Trial Examiner finds that these two statements were violative of the rights guaranteed to the employees under Section 7 of the Act. 2. Pay increases On March 9, 1950 , the Union filed with the Board a representation petition requesting a Board election. Shortly thereafter Respondent notified its em- ployees that effective on March 27, 1950, "any employee or employees reporting for work on their regular scheduled shift or at the request of the company, with- out prior notice that their services will not be needed, shall be paid two hours reporting pay at their prevailing rate of pay , or given at least four hours work" ; that "all third shift employees will be paid five cents per hour more than the prevailing rates on the first and second shifts " ; and that "Easter, July 4th, Labor Day, Thanksgiving and Christmas shall be observed as a holiday . Work on any of these days will be paid time and one -half." W. G. Calhoun, employment manager for Respondent , testified credibly that he did not think Respondent had ever paid employees reporting for work when their services were not required ; and that the 5 cents differential paid to third shift employees was not effective prior to March 1950 ; and that he had no knowledge if the holidays announced by Respondent and the payment for work on these days was a change in Respondent's policy. Respondent offered no testimony concerning the change in the pay to em- ployees reporting for work when their services were not required , or as to the increase in the pay of the third shift employees , relying upon statement of its counsel that there was "no law that prohibits an employer from any such steps MOORESVILLE MILLS 583 or actions as are set forth in that notice , at a time when no directive of election is outstanding and the mere fact that a union had claimed to represent employees." In Salant d Salant, Inc., 92 NLRB 343, the Board found that a promise to the employees of a wage increase made 6 days after Respondent received a letter from the union claiming a majority representation was "not fortuitous . It could only have been for the purpose of counteracting the C. I. O's organizational efforts that Salant chose this occasion to promise " the employees a wage increase. In Jamestown Veneer d Plywood Corp., 93 NLRB 101, the Board held that a wage increase granted to the employees within 1 week after the Board had ordered a representation election was not in accord with any established prac- tice, policy, or pattern, and that Respondent's actions were designed "to prove to the employees that resort to self-organization was plainly unnecessary," 7 and that the action of the Respondent in granting the increase was in violation of Section 8 (a) (1) of the Act.' In Eisner Grocery Co., 93 NLRB 1614, the Board held that a wage increase granted about 2 weeks before a representation election did not interfere with the election where the increase was granted in accordance with the employer's past practice at a time when employees might normally have expected such an increase, and employer was during the same period increasing wages of em- ployees not involved in the representation proceeding In the present case, Respondent made no showing that the economic benefits granted to employees reporting for work when their services were not required, or that the increase granted to employees on the third shift followed any "estab- lished practice, policy, or pattern!"' The Trial Examiner finds that the economic benefits and the increase were granted for the purpose of counteracting the union organization efforts, and in violation of Section 8 (a) (1) of the Act." 3. Arrest of union organizer About a week before the representation election on June 30, 1950, Joe Kirk, Jr, an organizer employed by the Union, together with another union organizer and two of Respondent's employees, stationed themselves at the main entrance gate to Respondent's mill and distributed union literature to employees entering and leaving the mill. Respondent's mill property is enclosed by a wire fence one side of which extends parallel to the public highway a distance of between 15 to 20 feet from the edge of the public sidewalk. Entrance to the mill is obtained over a paved roadway about 12 feet wide extending from the highway across the sidewalk and through a sliding gate to Respondent's mill. Employees enter and leave the mill through this gateway, both on foot and in automobiles. Many of the employees come to the mill in busses which stop on the public highway where the private roadway into Respondent's mill adjoins the highway On the day in question , one of the union organizers and the two employees distributing literature stationed themselves on the sidewalk by the side of the 7 Citing N. L R. B. v. Crown Can Co., 1 38 F. 2d 263, 267. 8 See also Deena Products Co., 93 NLRB 549; Cen-Tennial Cotton Gin Co., 90 NLRB 345; Happ bros. Co., 90 NLRB 1513; Continental Nut Co., 91 NLRB 1058; Atlanta Metal- lic Casket Co., 91 NLRB 1225. 9 As there was no proof that the holidays announced by Respondent , and the pay for working on these days, was different from existing conditions at the time of the announce- ment, it cannot be assumed that this was of advantage to the employees, or that it had any effect upon the organizational activities of the Union . The Trial Examiner therefore is not relying upon this offer by Respondent in making his findings of a violation. 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD roadway into Respondent's mill. There was no interference with the activities of these three. Kirk stationed himself in the middle of the driveway and at times followed the employees up the driveway to near the entrance gate, but at no time did he pass through the gate to Respondent's property inside of the gate. Richard E. Perkins, a guard employed by Respondent, was stationed at the entrance gate. He warned Kirk that the latter must not trespass on Respond- ent's property in making the distribution of literature, but should remain on the public sidewalk. Kirk informed Perkins that he knew his rights and con- tinued to walk in the center of the driveway on the property extending from the edge of the sidewalk to near the entrance gate. Perkins then called the Mooresville police, placed Kirk under arrest, and conducted Kirk to the police station where Perkins swore out a warrant for Kirk charging him with tres- passing on Respondent's property. Kirk gave a bond and was released, and was later brought to trial in the local court. Perkins had no direct authority from any of Respondent's supervisors for his actions, and acted on his own initiative. Several hours after Kirk's arrest, however, Perkins reported the matter to Superintendent Thomas 10 Briefly the question presented is whether Respondent violated the Act by prohibiting the distribution of literature on that portion of its property extending from the gateway to the public sidewalk. Although there were no signs on this property that it was private, Kirk was warned by Perkins that is was Re- spondent's property and that he was not to trespass on it. He ignored this warning and thereafter continued to trespass on Respondent's property. The evidence does not satisfy the Trial Examiner that Kirk interfered with the employees entering and leaving the plant. The testimony discloses that the roadway was at least 15 feet wide, enough for two automobiles to pass abreast. To say that one man standing in the middle of a roadway passing out literature could effectually block the passageway of the employees is not reasonable. Perkins did not accuse Kirk of blocking or interfering with the employees. The only charge against Kirk was that he trespassed on Respond- ent's property. In Newport News Children's Dress Co., 91 NLRB 1521, the Board said : It has been well settled since our decision in LeTourneau Company of Georgia [54 NLRB 1253], cited by General Counsel, that under some cir- cumstances an employer may not prohibit the distribution of union literature on his property ... As it appeared in that case that the rule did cause such a serious impediment to self-organization, the respondent was found to have violated Section 8 (1) of the Act. But the facts of the LeTourneau case, and similar cases on which the General Counsel relies are markedly different from those in the present case. The facts in the present case are somewhat similar to those in the Newport News Children's Dress Co. case. In the present case busses do not load or unload on Respondent's property, but stop on the public highway, and literature can easily be distributed to the employees as they enter and leave the gate. It is not a question whether Respondent was arbitrary or capricious by pro- hibiting distribution on its property, but whether such action caused a serious 10 All of the above findings are based on credited testimony of Kirk, Perkins, and Henry Clyburn, one of Respondent's supervisors. Although Kirk was somewhat hesitant in admitting that he trespassed' on Respondent's property, he would not deny that he did so, and from all of the testimony it is clear to the Trial Examiner that in his enthusiasm to distribute literature to all of the employees entering the gate he crossed over the property line to the gate entrance. MOORESVILLE MILLS 585 impediment to self-organization. The facts in the present case do not warrant such a finding. There was no proof that the other union organizer and the two employees were not making an effectual distribution of literature off Re- spondent's property. Under the circumstances of this case, the Trial Examiner finds that the denial to the union organizer of the opportunity to distribute literature on Respond- ent's property did not constitute a "serious impediment to the freedom of com- munication" within the meaning of the LeTourneau case. In view of the above finding, it is not necessary to determine Respondent's liability for the acts of Perkins. C. Discriminatory discharges 1. Evelyn D. Hawkins Hawkins had been employed by Respondent at different times from 1934, her last employment starting in September 1949 and continuing until her discharge on February 21, 1950. Hawkins joined the Union on December 8, 1949, and thereafter was very active in soliciting other employees to join the Union, talk- ing to them in the mill and visiting them in their homes. In February 1950 two or three union meetings of the employees were held at her house. In the latter part of January or the first part of February 1950, one of the union organizers, together with his family, roomed at Hawkins' house, and during this time Haw- kins and the union organizer called at the homes of different employees to induce them to join the Union. Monday, February 20, 1950, Hawkins did not report for work at the mill because one of her children was sick, and she sent word through Ella Rogers, a fellow employee, to her supervisor, James W. Campbell. The following day, Tuesday, February 21, 1950, Rogers informed Hawkins that Campbell said for Hawkins not to report for work, that they did not need her. Hawkins never- theless reported for work on Tuesday, and after she had been working for about 10 minutes, Campbell asked her if she had seen Rogers and Hawkins told him "yes." Campbell then informed her that she was discharged. Hawkins asked Campbell why she was discharged, and Campbell informed Hawkins that Grover C. Holthouser, overseer, had directed him to discharge Hawkins, that they did not need her, that her work was not satisfactory. Hawkins then gave the fol- lowing testimony : Q. Did you have any discussion with him at that time about your work? A. Yes, sir, I asked him, I said, "Mr. Campbell, you are with me eight hours a night, you could tell me whether my work is satisfactory with you or not." He says, "I haven't got any comments to make on that. I just got my orders from Mr. Holshouser to let you go." Q. Was there anything further said? A. Yes, I made the statement to Mr. Campbell that I asked him why didn't he tell me he was firing me for union activities, because he knew I was carrying a book and he knew I was talking to the employees about it. Q. What did he say? A. Mr. Campbell said back to me, "I didn't know you were carrying a book, but I did know you were talking union in the plant and you weren't supposed to be." During the time she was employed, no supervisor ever reprimanded Hawkins, nor was she ever told that her work was unsatisfactory. In her rebuttal testi- mony, Hawkins denied that Campbell ever spoke to her concerning her absentee- Ism or about neglect of her work when she was in the mill. 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After Hawkins was discharged, she filed a complaint with the Union which formed the basis for the first charge filed by the Union against Respondent. Later, Hawkins filed an application for unemployment compensation, and at a hearing W. G. Calhoun, personnel director employed by Respondent, testified that Hawkins was discharged because of her absentee record. In June 1950, shortly before the representative election, Hawkins applied to Superintendent Thomas requesting reinstatement to her position ; that after some conversation concerning her employment with Respondent, and how she, Hawkins, "got messed up in this union," as herein related, Thomas told Hawkins to go to the Union and drop the charges against Respondent, and then file an application for reemployment and show what side she was on, that Thomas made no promise as to what would happen if she did this. Hawkins refused to drop the charges against Respondent. In Hawkins' conversation with Thomas, the latter said that Respondent did not have anything against her work, that she was "as good a hand as they had in there as far as production and every- thing was concerned, when I was on my job."" W. G. Calhoun testified credibly that at the time of the unemployment com- pensation hearing involving Hawkins, he, Calhoun, testified on behalf of Re- spondent; that before going to the hearing, he, Calhoun, talked to Holthouser to determine why Hawkins' work was unsatisfactory, and Holthouser informed him, Calhoun, that Hawkins was discharged because of chronic absenteeism, that when she was at the mill her work was satisfactory, but that she was absent too much ; that in discussing Respondent's record on Hawkins with Holt- houser, disclosing that Hawkins was discharged because her work was un- satisfactory, Holthouser said that her work was satisfactory, and that the record should have shown that the cause of her discharge was excessive absenteeism. Holthouser (sometimes referred to in the transcript as Holshouser), testified that he directed Campbell to discharge Hawkins for excessive absenteeism and for neglecting her work when she was on the job ; that Hawkins would leave her machine and talk to other employees, interfering with their work ; that he did not observe this himself but relied on reports from Hawkins' supervisor, Camp- bell ; that after Campbell had complained, he, Holthouser, checked Hawkins' attendance record ; that he did not speak to Hawkins about this, but directed Campbell to talk to her. Holthouser was questioned as to his conversation with Calhoun, and although he emphatically contradicted Calhoun's testimony as to much of the conversa- tion, when Holthouser was asked to, relate his conversation with Calhoun, he testified that he could not remember it, that he remembered having a conversa- tion with Calhoun about Hawkins, but could not recall why Calhoun came to him and did not remember all that went on. On cross-examination, Holthouser added to the reasons he had already given -for Hawkins' discharge, her low production record. Campbell testified that the reason for Hawkins' discharge was:, Mrs. Hawkins did not work well, you couldn't depend upon her being there any certain time. She was liable to show up and she was just as liable not to. Sometimes she would stay out and would send ward in she wouldn't be there, then again she would stay out and wouldn't send in any word. You just could not depend on her being there. While she was there actually on the job, she was as good as the rest of them, but she stayed away from her job much more than the rest, and did a lot of talking, to other employees and interfered with them in their work, she did a lot of that. "All of the above findings are based on Hawkins'. credited testimony. MOORESVILLE MILLS 587 Campbell further testified that he spoke to Hawkins a number of times to induce her to improve, but could fix no definite time; that the day before Hawkins' discharge, Holthouser asked him where Hawkins was , and he, Campbell, told Holthouser that he did not know, that she did not report for work ; IZ that Holt- houser then decided to discharge Hawkins, and he, Campbell , sent word to Hawkins by Rogers that she was discharged. Campbell further testified that Hawkins reported for work on Tuesday, and he informed Hawkins that she was discharged because her work was unsatis- factory because she was out so much and that she did not stay on the job when she was there ; and Hawkins then asked if she had been discharged because of her union activities, and he, Campbell , refused to comment on that. Respondent's counsel then questioned Campbell as follows : Q. You say you did tell her you had discharged her for what cause? A. I told Mrs . Hawkins I had discharged her because she was out so much, and we just couldn't have that, and that her work was unsatisfactory due to her excessive absenteeism. Q. What did you say you said to her about staying off of her job? A, I told her that at the same time. On cross-examination Campbell was asked if the employees working under him were talking more than usual in the early part of 1950, and replied that he did not know. He was then asked if he had any special problems about the employees talking at that time, and replied , "I don't remember." He was then asked if he had any special memory about Mrs. Hawkins talking at that time , and replied that she talked more than anybody else. On further cross-examination by the Trial Examiner, Campbell was asked if he had a conversation with Holthouser the latter part of January or early Feb- ruary concerning Hawkins and replied, "I suppose so , I don't remember when it was." He was then asked what Holthouser directed him to do, and replied, "To see her and talk to her and see if I couldn't get her in there and keep her on the job." Campbell was then asked if he talked to Hawkins and said that he did, and was then asked : Q, Did her attendance improve after that? A. Well, I don't know ; I don't remember. Campbell's attention was then called to the fact that Respondent 's record dis- closed an improvement in Hawkins ' attendance record in February, and then gave the following testimony : Q, Mr. Holthouser told you to talk with her? A, Yes, sir. Q. He didn't tell you to discharge her in January did he? A, No, sir. Q. And you talked to her and her attendance did improve? A. Yes, sir. Q. And after that improvement then you discharged her, is that correct? A. Yes, sir. Q. After the improvement? A. Yes, sir. Q. Why didn't you take action in the latter part of January? A. I don't remember. 12 Campbell did not deny that he received Hawkins' message to him from Rogers, and it is somewhat significant that Campbell sent word to Hawkins of her discharge by Rogers, and also that Respondent's records disclosed that Hawkins was absent on February 20, 1950, because of sickness. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. You don't remember? A. No, sir. Q. You did nothing about it at all? A. We were awful short on help, and it really put a hardship on us when somebody stayed out and we would just have to stop off some machines and move the help around. Q. As I understand you, the reason why you did not discharge her at the end of January was because you were short of help and needed her? A. No, sir. Q. That is what you just said? A. I said that we were short of help, but I didn't say that was the reason we didn't discharge her in January. Q. The reason why you didn't was because Mr. Holthouser told you to talk to her, which you did, and she did improve, is that correct? A. Yes, sir. Q. Then why did you discharge her in the latter part of the month of February? A. Because her work was not satisfactory ; she wasn't there enough. Q. But her attendance had improved some? A. Yes, sir. Q. And she was there working? A. She was there, but was away from her machine most of the time talk- ing and so forth. Her being there didn't mean that she stayed at her job, she got in her eight hours, which meant she got eight hours pay, but she didn't stay on the job eight hours. Respondent's records disclose that for the 5 weeks ended October 29, 1949, Hawkins was absent 2 days sick and 1 day she failed to report for work ; for the 4 weeks ended November 26, 1949, Hawkins was absent 3 days sick and 1 day and 7 hours without reporting for work ; for the 5 weeks ended December 31, 1949, she was absent 5 days sick and 1 day failed to report ; for the 4 weeks ended January 28, 1950, she was absent 5 days sick and 2 days failed to report ; for the week ended February 4, 1950, she was at work every day ; she was absent 2 days sick for the week ended February 11, 1950; and the final week of her employment prior to her discharge she was at work every day. Conclusions as to Discharge of Hawkins The testimony of Holthouser and Campbell was not very impressive. Holt- houser's attempts to contradict Calhoun were not at all convincing. General Counsel had not previously interviewed Calhoun before he was called to the witness stand, relying entirely upon the testimony Calhoun gave before the un- employment compensation board. Calhoun is presently employed by Respond- ent. Although his testimony was frank and honest, it was clear to the Trial Examiner that he was favorable to Respondent. He was called as a surprise witness by General Counsel, and apparently had no opportunity to discuss his testimony with anyone prior to going on the witness stand. Under all the cir- cumstances it is very improbable that any of his testimony was false. Campbell was clearly evasive in his answers. He first testified that the reason for Hawkins' discharge was that "you couldn't depend on her being there any cer- tain time," but that when she was there she was as good as the rest of the employees. Later Respondent's counsel asked him to repeat the reason for Hawkins' discharge, and he gave the same reason Holthouser gave Calhoun, her MOORESVILLE MILLS 589 excessive absenteeism, and then when prompted by counsel as to what he said about Hawkins staying off her job, he replied that he told her that at the same time. Careful consideration of the testimony concerning the discharge of Hawkins, including the testimony of Ella M. Rogers and Emma Estes, both of whom testified that prior to her discharge Hawkins talked to them while they were at work and interfered with their work, convinces the Trial Examiner that the indefinite reason given to Hawkins by Campbell that she was discharged because her work was unsatisfactory, and then refusing to state in what respects it was unsatisfactory, as credibly testified by Hawkins, was the only reason given by Campbell to Hawkins at the time the latter was discharged. Later when the hearing before the Unemployment Compensation Board came up, and Calhoun informed Holthouser that this reason was too indefinite and he would have to know why Hawkins' work was unsatisfactory, it then occurred to Holthouser to rely upon Hawkins' attendance record." Finally when Respondent was faced with its defense to the charges preferred in the present case, it is clear that it must have occurred to Respondent that the defense of excess absenteeism was somewhat inconsistent with Respondent's first position that Hawkins' work was unsatisfactory, and the further fact that Hawkins' attendance had mate- rially improved over the last 4 or 5 weeks of her employment. To bolster up its defense, Respondent then resorted to new and different reasons, that Hawkins, when she was at work, talked too much to other employees and interfered with their work, and finally that her production was very low. The evidence is clear that Hawkins did talk to the other employees while she was at work, urging them to join the Union. In fact Hawkins admitted this. It is not clear, however, that Hawkins abused this and interfered with the work of other employees. It is also clear that Campbell observed Hawkins' activities and was advised that Hawkins was soliciting the employees to join the Union. Hawkins' testimony that Campbell at no time reprimanded her for this activity is credited, and this for the reason that Hawkins' activities did not interfere with her work or that of the other employees, and hence Campbell had no cause t& reprimand her. In addition to the above, we have the credited testimony of Hawkins, which was not contradicted, that when she applied to Thomas for reinstatement, Thomas said she was as good an employee as they had, etc. Respondent's policy of shift- ing from one reason to another as the basis for Hawkins' discharge is not con- vincing, and for the reasons stated, the Trial Examiner finds that the reason given by Respondent for the discharge of Hawkins was a pretext, and that Hawkins was discharged for her union activities in violation of the Act. Hawkins' credited testimony as to her conversation with Superintendent Thomas in June 1950 at the time she applied for reinstatement stands uncon- tradicted. Based on such testimony, the Trial Examiner finds that Respondent refused to reinstate Hawkins to her position because Hawkins refused to drop the charges which she made to the Union furnishing the basis for the first charge filed by the Union against the Respondent. is It is somewhat interesting to note Calhoun's testimony of his conversation with Holthouser concerning the apparent inconsistency between the terms "excessive absentee. Ism" and "work unsatisfactory," especially Holthouser's admission to Calhoun that Hawkins' work was satisfactory when she was present at the mill, and Campbell' s testi- mony that Hawkins' work was as good as the other employees' when she was present; and Holthouser's admission to Calhoun that the record should have disclosed "excess absenteeism" and not "work unsatisfactory." 1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. W. B. McGraw McGraw gave the following credible testimony : He was employed by Respondent continuously from sometime in 1928 to the date of his final discharge on March 7, 1950, except for some periods when he was laid off for economic reasons, and for the period from 1943 to the latter part of 1945 when he was in the Army. McGraw joined the Union in the summer of 3949,14 and shortly thereafter was appointed as a volunteer organizer for the Union. Thereafter McGraw was very active in soliciting Respondent's employees to join the Union, visiting them at their homes, and discussing the Union very thoroughly with the employees at work in an effort to induce them to join the Union. McGraw was employed as a fixer, and his discussions of the Union were with the weavers on his shift. McGraw did not think that Supervisor Maurice L. Sloop had ever mentioned to him that his work was not satisfactory, but he was not certain that Sloop had not discussed the matter with him. C. G. Caviness and Ed Warren, supervisors, came around every week when his production was low and would request him and the other employees to get their production up, that he, McGraw, could not recall that Caviness and Warren ever talked to him specifically about this, but he would not deny that they did. The first week in February 1950, McGraw was called to Sloop's office, and Sloop told him his work was unsatisfactory and he was discharged, and he asked Sloop why his work was unsatisfactory and Sloop replied that his production was low ; Sloop then advised McGraw that Supervisor Tom Leonard, at Syntax, a branch mill operated by Respondent, wanted a loom fixer, and asked McGraw if he wanted to take that position, which McGraw did. McGraw then worked at Syntax mill until March 7, 1950, when he was released. McGraw then applied to Sloop for a position, and Sloop informed him that his services had been unsatisfactory. For the week ended January 14, 1950, McGraw received a bonus of the "high dollar." 16 The first week of February 1950, the last week he worked at the main mill of Respondent, McGraw received a bonus for quality production on the looms in his section 16 Edward Warren, immediate supervisor over McGraw, testified credibly as follows : McGraw worked under Warren as a loom fixer from December 1949 to the first week in February 1950. At first McGraw's work was satisfactory, but it gradually got worse, and the production of goods in the unit with which McGraw was connected went lower and lower. He spoke to McGraw about this as he observed that some of the looms would be flagged, indicating they were out of order, and that McGraw was not fixing them. This decreased pro- duction. Mrs. Bracken, one of the weavers, complained to him that her looms would get out of order and she would flag McGraw, and McGraw would give it no attention for some time, maybe an hour ; that McGraw would then pretend to fix the loom, but it would break down shortly thereafter ; that he had corn- 14 McGraw's first application was misplaced, and he signed a new application on January 14, 1950. 11 The "high dollar" was a bonus paid to a group of employees , including the weavers and the loom fixer for the highest production of a particular type of goods, but not highest production on all classes of goods, with a minimum of seconds , or defective cloth 11 This was a bonus for a minimum of seconds , or defective goods produced . Quantity of production is not figured in arriving at this bonus, and the bonus may be paid even if production is very low. It represents, of course, the joint efforts of all the employees in the unit, and not the work of an individual employee. MOORESVILLE MILLS 591 plaints from the other weavers as to McGraw's refusal to fix their looms ; that the weavers also complained to Sloop, Warren's superior, and that Sloop spoke to him, and directed Warren to speak to McGraw and try to get McGraw to improve particularly for the reason that McGraw was efficient prior to the first of the year 1950; that he reprimanded McGraw and endeavored to get McGraw to improve, that he took McGraw to one of the looms and explained to him the trouble and how to fix it, and McGraw promised to get the loom in order, but paid little or no attention to the instructions he had given McGraw ; that the production in McGraw' s section was gradually declining due to many of the looms being out of order. Warren further testified credibly : That he talked with Sloop about the. situation, and finally at the end of the first week in February 1950, Sloop decided to release McGraw and put another loom fixer in the position ; that the last week McGraw was in the section, McGraw got a bonus even though the production of the section was very low, but the cloth the weavers in the section did run was of good quality, with a mini- mum of seconds, or defective cloth. Maurice L. Sloop, overseer of weaving, testified credibly as follows : McGraw worked under Sloop, as a loom fixer, from sometime in 1947 to the early part of 1949; that early in 1949 McGraw was having trouble with his looms, the looms were stopping unnecessarily, they were breaking bobbins, the shuttles were in bad condition, and his looms were being flagged too much and the weavers were complaining. In June 1949, McGraw was removed from this position and placed on the change board at reduced pay. In October 1949 a new section opened, and he, Sloop, decided to try McGraw again as a loom fixer as McGraw had been employed by Respondent for a number of years, but not as a loom fixer, and he, Sloop, felt that McGraw was qualified if he would apply himself and take an interest in the work. In his new position McGraw's work was about average for the first 2 months. In December Warren took over the section as section hand. McGraw apparently was not getting along too well with his work, and the weavers were complaining. Sloop and Warren went over the production records, but they were not too bad. Shortly after this the weavers again complained, and said that McGraw was permitting their looms to stand too long without fixing them, which resulted in lowering their production ; that he talked to McGraw about this in December 1949 and again about the middle of January 1950; and also talked to Warren about it. That when he, Sloop, passed through the section his attention was directed by the weavers to looms with flags up, indicating they were out of fix ; that beginning with the first part of January until McGraw was discharged, the production in McGraw's section decreased and was about 10 percent below standard when McGraw was discharged. That he, Sloop, talked to Warren about McGraw's work the first Friday in February, and decided to discharge McGraw. On the following Monday morning, McGraw came to his office, and he explained to McGraw why he was being dis- charged. About this time he received word that No. 1 Mill (Syntax Mill) wanted to borrow a loom fixer, and he, Sloop, offered McGraw the position on a tempo- rary basis. McGraw remained at No. 1 Mill until the first part of March 1950. McGraw then came to Sloop and asked him if he could use him, McGraw, and be, Sloop, Informed McGraw that he had nothing to offer him. James R. Brooks testified credibly that he was employed by Respondent as a weaver in the same section where McGraw was a loom fixer, and that he com- plained to Warren about McGraw's-work because McGraw would not fix his looms when they were flagged, and this interfered with his production. 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Elizabeth B. Brackett testified that she was employed as a weaver in the same section where McGraw was a loom fixer, and that she complained to Sloop and Warren concerning McGraw's work" Conclusions as to Discharge of McGraw It is clear from the testimony of McGraw, Sloop, and Warren that McGraw was inefficient and incompetent. In view of this finding, the Trial Examiner finds it unnecessary to decide whether Respondent had knowledge of McGraw's union activity, as it is clear that Respondent had reasonable cause to dis- charge McGraw. 3. W. Edd Hendren Hendren testified credibly as follows : He was first employed by Respondent in 1927 or 1928, and worked with them until about 1935, when he left and was employed by two other textile mills until about 1942; was then employed by Glenn L. Martin, Baltimore, Maryland, for about 18 months, and then went to the Army. He was discharged from the Army in March 1946, and entered the employ of Respondent in April 1946, and worked for Respondent continuously thereafter, except for several weeks when he was laid off for economic reasons, until his discharge on March 14, 1950. He was served with a notice that he was discharged for soliciting members for the Union while on his job. He worked in various positions as a weaver, inspector, etc. In September 1949, at his own request, he was transferred to the third shift to work as a warper on a set of new looms Respondent had installed, and about 4 or 5 weeks later he was promoted to a shuttle man. That he joined the Union on April 19, 1949, and thereafter volunteered as a committeeman, visited Respondent's employees in their homes and talked to them at the mill during working time endeavoring to induce them to join the Union, that he secured the signatures of from 125 to 150 employees to applications for membership in the Union ; that in the summer of 1949 he attended a union con- vention in Lexington, North Carolina ; and he attended nearly all of the union meetings. That on Tuesday night, March 14, 1950, he- reported for work, and Supervisor Lloyd Lawing informed him that Respondent was going to have to discharge him ; and he asked Lawing why, and Lawing said, "Well, you have been signing up people in the Union in the mill." Hendren denied that he had been signing up the employees in the mill, but admitted he had been talking to the employees in the mill about the Union. Lawing then asked Hendren if he had signed up the employee he was talking to the previous night, and he told Lawing that he had not. Hendren testified further that he was talking to an employee in the men's room the previous night, soliciting him to join the Union, but testified they were in the room only 2 or 3 minutes. Hendren testified that he had never been repri- manded by Lawing about talking to other employees in the mill ; that sometime before he was transferred to the third shift in September 1949, Sloop warned him not to talk to other employees, but to "stay in your own alley, not bother anybody." On cross-examination, Hendren admitted that he did not lose an opportunity to talk to employees about joining the Union, and talked to the employees when- " Brackett's testimony is not credited for the reason that she gave an affidavit to the Board's field examiner which contradicts her testimony on the witness stand. Brackett admitted she signed this affidavit , but denied that she swore to it, and further testified that she did not make the statements shown in the affidavit to the field examiner. MOORESVILLE MILLS 593 ever he had a chance in the mill while they were at work, and that while he did not recall it, he may have signed up some employees while they were in the mill. Hendren's testimony that he was talking to another employee in the men's room only 2 or 3 minutes does not appear reasonable. In view of the testimony of Supervisors Cudworth and Lawing, herein related, it appears very improbable that Cudworth and Lawing never reprimanded him about talking to other em- ployees during working time. None of this testimony is credited. Stanley R. Cudworth testified credibly that he was second-hand on the third shift, and that Hendren had worked under him about 6 months before Hendren was discharged ; that Hendren was a shuttle man in charge of 100 looms, and it was his duty to fur and bristle the shuttles and see that the bobbins are in the center, check the harness, and catch 'anything that is wrong with the loom before it is too late; Hendren was supposed to work on 20 looms each night over the week, covering all 100 looms each week, and was not supposed to leave the 20 looms unless something went wrong with 1 of the other 80 looms, in which event he was to report to his supervisor before leaving the 20 looms. Cudworth further testified credibly that he had trouble with Hendren beginning in October 1949 when he, Cudworth, was made supervisor of this work ; that he talked to Hendren about it on numerous occasions in an effort to get Hendren to improve ; that Hendren would leave his work and talk to the other employees ; that after talking to Hendren the latter would promise to improve and for 2 or 3 days his work was better, and then Hendren would return to his old practices of leaving his work and talking to other employees ; that he reported this matter to Lawing frequently ; that finally about 3 or 4 days before Hendren was dis- charged, he talked to Hendren and told him that his patience was at an end, and he was not going to warn Hendren again. He reported the same thing to Lawing. Lawing testified credibly that he was made overseer of the third shift in November 1949, and that Hendren was employed on this shift ; that Hendren's work was not satisfactory because he would not give it his attention, leaving his work to talk to other employees in other parts of the mill, and as a result his looms were in bad condition ; that he talked with Cudworth about it and told Cudworth to talk to Hendren, that this was over the entire period until Hendren was discharged ; that after Cudworth had reprimanded Hendren numerous times, Hendren changed his methods, and instead of talking to the employees on their job, he would meet the employees in the men's room and talk to them there ; Cudworth warned Hendren several nights before Hendren was discharged, but it did no good ; finally the night before Hendren was discharged, Hendren left his work and was in the men's room over half an hour ; that another employee named Nanney was in the men's room at the same time ; that after Hendren and Nanney came out he asked Nanney if Hendren was talking to him in the men's room about the Union, as hereinabove related ; that he then studied the matter overnight and reached the conclusion to discharge Hendren ; when Hendren reported for work the next night he discharged him, and informed Hendren why he was being discharged. Conclusion as to Discharge of Hendren Hendren did not deny that he was very active while on his job in talking to the employees about the Union. The only question is the extent of such activity and whether it interfered with the proper performance of Hendren's work, and that of the other employees. If it was reasonable and did not inter- fere with Hendren's work, or that of the other employees, such activities would 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be protected. The Act, however, does not proscribe appropriate action by the employer where the privilege is abused by the employee and results in depriving the employer of the required time and attention of the employees which the employer in entitled to receive. The record in this case clearly established that Hendren was more interested in his union activities than he was in performing the work which his employer had the right to expect. It is clear that Hendren neglected his duties and interfered with the proper performance of the work of other employees. Such activities are not protected by the Act. It is not significant that Respondent delayed final action in this case for several months. Hendren had been an employee for a number of years and precipitate action would not be expected. His long and competent services for Respondent naturally gave the latter reason- able hope and expectation that after' he was reprimanded he would improve. The Trial Examiner finds that Hendren's union activities went beyond the activities protected by the Act, and Respondent's action in,discharging Hendren did not violate the Act. 4. J. D. Ervin Ervin testified credibly that he was first employed by Respondent the last of 1941 or the first of 1942, continued in Respondent's employment until he went in the Army in 1945; was discharged from the Army in 1946, and returned to Respondent's employment until his discharge, March 24, 1950, with exception of about 2 weeks, when he was laid off. That he joined the Union on April 16, 1949,18 and was appointed a volunteer organizer for the Union shortly thereafter. He was very active thereafter in soliciting Respondent's employees to join the Union. Ervin further testified credibly that he talked to the employees in his section while they were at work, soliciting them to join the Union, and solicited other employees while they were in the rest rooms and at their homes and at meet- ings ; that on March 24, 1950, he was called to Overseer Henry Clyburn's office ; that Robert B. Hare, his supervisor, and Bob Fields, overseer, were present ; that Clyburn told him he had been interfering with the other workers, talking to them night after night, after the other workers asked him not to, and that at least three of these workers had complained to him, Clyburn, that Ervin was bothering them in their work; that he asked for the names of the employees who had complained, but C13 burn refused to divulge their names ; that he did not deny the employees had asked him to stop talking to them ; Ervin was then asked what he said to Clyburn when the latter told him he was discharged, and replied, "I said if he had proof, he had proof, and I just got up and walked out." Ervin also testified, but such testimony is not credited, that he was never reprimanded by any supervisor concerning talking to other employees while they were working; that no employee ever complained to him or asked him not to talk to them while they were working. Hare testified credibly that in February and March 1950, Ervin was not a satisfactory employee because he would leave his work and talk to and interfere with other employees while they were working; that Mrs. Cruse, a doffer and spinner, complained to him two or three times that Ervin was "bothering her on the job, aggravating her" ; that he reprimanded Ervin two or three times about interfering with Mrs. Cruse and the other employees, and directed him not to bother the other employees while they were at work ; that he talked to 18 General Counsel's Exhibit No. 9 shows this date as April 16, 1948. Ervin testified this was an error, that it should have been corrected to 1949. MOORESVILLE MILLS 595 Clyburn, his overseer, about it on two occasions; that later Mrs. Cruse notified Clyburn she was giving notice that she was resigning because Ervin was bother- ing her in her work, and "pestering her all the time" ; that shortly thereafter Clyburn directed him to tell Ervin to come to his office; that when Ervin came in Clyburn told Ervin that he, Clyburn, had warned Ervin several times about interfering with other employees without effective result, and that he, Clyburn, would have to dispense with Ervin's services ; that he did not remember the exact reply by Ervin but it was something like, "Well, if you are in the right, it's o. k." Henry Clyburn , supervisor of carding and spinning, testified credibly as follows : That about 5 weeks before Ervin's discharge, Hare reported to him that the spinners on his shift were complaining because Ervin "bothered them on their job, and talking about the Union and using their time, or trying to use their time in explaining to them what the Union was" ; that Hare said he had talked to Ervin about it; that about 2 weeks later Hare reported he was having the same trouble with Ervin , and that it seemed that he, Hare, was not going to be able to stop Ervin interfering with the other employees ; that he, Hare, had had other complaints from the employees, and Hare wanted to know what to do about it ; that he directed Hare to tell Ervin that the Company would not tolerate an employee going off his job and bothering other employees, regardless of whether it concerned the Union, or baseball, or anything else. That Ervin's job as a doffer, that is removing from the frames full bobbins of yarn and replacing them with empty bobbins, did not require his full time, but that a spinning job is a continuous operation all day long. That about the first part of February , Ervin came to him with reference to an error in his pay check, and that when he had straightened it out, he had the following conversation with Ervin ; that Ervin said: Now, look here, this is about the third time I have had an error in my time, and I want you to know now that from here on out I am not going to put up with it because the Union is not going to allow things like that to go on. Then I [Clyburn ] said, "Now, listen , J. D., as far as I know there is no Union here ; the Union is not representing you or anybody else, and if you are taking it on your own to tell me what the Union is going to do, you just leave the Union out of it, unless the Union gets in here , and if the Union is in here, we will have to work with them , but until then we are not interested in the Union." Then I says "Another thing while I am talking to you , I want to tell you that I want you to be a little more careful about your work and stay on your job and quit bothering other people . You have been doing that and they have called it to my attention , and you stay on your job." Then he said , "I'll get my frames doffed and I can go where I please." I said, "No, J. D., it won't work that day. You doff your frames and stay on your job and quit bothering other people and stay on your job." Clyburn further testified credibly as follows : That sometime after the above conversation with Ervin, he had another conversation with Ervin concerning the spinners as follows : Q. What about the spinners? A. Well, he said the spinners had too many sides on his job, and he wanted to get it straightened out. Q. What did you say to that? A. I said "well, why are you interested in your spinners , they are not doing any part of your work," and he said, "well they have got too many sides and 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I want something done about it". I said, "J . D., you don't have anything to do with the spinners ; you have got a doff box to push and frames to doff and frames to keep clean , and you just leave the spinners alone." Then I added, "now you just leave alone whatever you were talking about, and this is the second time I have told you not to bother other people, but evidently you are going around talking to them again." That the day before Ervin was discharged , Mrs. Cruse came to his office and said she was giving notice that she was "leaving our employment" within 2 weeks ; that he, Clyburn, asked her what was the trouble ; that after some hestiation Cruse finally said, "I just can't stand it any longer up there in the spinning room where J. D. Ervin is running all over the place, he nearly runs me crazy" ; he then asked Cruse when Ervin had bothered her last, that he, Clyburn , had under- stood Ervin had not bothered her any more; that Cruse replied , "Well, he has, but I just didn't say any more about it, but it looks like he is not going to quit, so I knew I was going to have to quit or have a nervous breakdown" ; that he then instructed Cruse to return to her work, that the situation was a little more severe than he thought, but he would look into it and take some action ; that this con- versation with Cruse was at the end of the shift that day ; that at the start of the shift the next day, he told Hare of the visit of Mrs . Cruse, and that he, Clyburn, had decided he could not tolerate Ervin 's conduct any longer, and directed Irving to put another doffer in Ervin's place , and send Ervin to his office ; that when Ervin came in he,, Clyburn, explained to Ervin why he was being discharged. Lucile Cruse testified credibly that for about 2 months before Ervin was discharged he came on her job nearly every night, talking to her and interfering with her work ; that he would stand in front of her doffing box so that she could not work and would talk about the Union ; that on one occasion he told her she was the only one left in her section that did not belong to the Union , and that "if I did not join," when the Union came in "they were going to take me in may be, but that I had to pay to get in if they done that, but he said for his part, he was going to throw me out the window" ; that she complained to both Hare and Cly- burn , and finally notified Clyburn that she intended to leave because she "had took all from J. D. that I could." Cruse further testified credibly that she had requested Ervin a number of times to leave her alone. Annie Goins, a spinner employed by Respondent, testified credibly that Ervin came to her while she was at work and talked to her about joining the Union ; that she recalled he talked to her three or four times, and she told Ervin she was not interested, that she had been hurt financially in two other strikes, and that she did not want to be bothered about it; that Ervin returned after this and told her he was going to give her the last chance to join the Union ; that this interfered with her work because you cannot carry on a conversation and spin at the same time: that she complained to Hare about Ervin interfering with her work at least twice and probably three times ; that the first time Ervin spoke to her about the Union was 5 or 6 weeks before his discharge. Virginia Sipes testified credibly that she was employed as a spinner by Re- spondent, and worked on the same shift with Ervin up to February 15, 1950, when she was transferred to the first shift ; that Ervin talked to her the latter part of January and again the second week of February, and both times she was spinning and Ervin's action interfered with her work ; that the second time Ervin talked to her about joining the Union, he told her that if she did not join the Union she would lose her position ; that she complained to Hare that she did not want Ervin bothering her. MOORESVIL LE MILLS Conclusion as to Discharge of Ervin 597 Based on the above testimony it is clear that Ervin exceeded the activity protected by the Act. The Trial Examiner therefore finds that Respondent did not discharge Ervin for union activities protected by the Act, but for the abuse of such activities which resulted in interference with the work of other employees. By providing that employees engaged in union activities were pro- tected, it is clear that Congress had no intention of protecting abuses of these activities which interfere with the reasonable conduct of business by the em- ployer. Evidence of Ervin's defiant attitude is clearly shown when, after being reprimanded by his superior, he replied, "I'll get all my frames doffed, and I can go where I please." It will be recommended that the charge that Respondent discriminatorily discharged Ervin be dismissed 1B 5. James A. Davis Davis testified credibly as follows : That he was employed by Respondent as a loom fixer from October 1948 to the date of his discharge on April 12, 1950, except for a period of 4 or 5 months in 1949, when he was laid off ; that he worked on the second shift under William Pruitt, second hand, and James H. Spears, overseer ; that during the year 1950, up to the date of his discharge, he received the production bonus every week, except 2 weeks when he did not work full time ; that he fixed the looms for three weavers, and that the bonus was paid if the total production of these three weavers exceeded 85 percent. Davis further testified credibly that he joined the Union December 8, 1949, and was appointed as a volunteer organizer for the Union in February 1950; that he attended union meetings regularly, and talked to all of Respondent's employees he thought he could get to join the Union; that on April 12, 1950, he was called into the office of R. D. Barrett, superintendent of weaving ; that Spears and some other supervisors were present, and shortly after he arrived in the office Mrs. R. D. Howard, one of the weavers on his shift came in and Bar- rett then said, "Mr. Davis, it has come to my attention that you are telling your weavers that you won't fix their looms unless they join the Union. Did you say that?", and he, Davis, replied, "Let the lady answer the question." Davis then gave the following testimony : Q. Mrs. Howard was one of your three weavers? A. That's right. He [Barrett] said, "I asked you the question." I said, "I don't remember saying anything like that." Then he said, "Mrs. Howard, didn't Mr. Davis tell you that he wouldn't fix your looms if you didn't join the union?" She said, "no, sir, he didn't tell me that." Then Mr. Spears said, "Mrs. Howard, didn't Austin-didn't you tell me that Austin said he wouldn't fix your looms if you didn't join the Union?" And she said, "No, Henry, I didn't tell you that. I told you that he said that I had more flags on my section than all the rest of his job put together." I said , "Yes, sir, I did say that, and she does." And then Mr. Spears said, "Well, he signed you up, didn't he?" And she said, "Yes, he signed me up." 19 Due to the findings that W. B. McGraw and J. D. Ervin were not discriminatorily dis-, charged as alleged in the complaint, the Trial Examiner finds it unnecessary to consider the charges in the complaint that McGraw and Ervin were evicted and moved out of houses owned and controlled by Respondent because of their union activities. 215233-53-39 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Davis credibly testified further that Barrett then made the statement to Howard that she did not have to join the Union to get her looms fixed, as here- inabove mentioned ; that after Howard left the room Barrett said to him, Davis, "I believe you did say that" ; and he, Davis, replied, "Mr. Barrett, that sounds like you are calling me a liar. Do you mean to call me a liar" ; that Barrett made no reply, and that he, Davis, repeated, "Do you mean to call me a liar" ; and Barrett replied, "Your work ain't satisfactory," and he, Davis, replied, "Mr. Barrett, the record won't bear you out on that. I get the bonus every week" ; that Barrett then asked him about his production the last week, and he, Davis, told Barrett it was about 87 percent, and his seconds about 5 percent, which Spears confirmed ; that he then said to Barrett, "Well then, your record don't bear you out on that," and Barrett replied, "Well, then, you are fussing at your weavers" ; that he, Davis, denied this, and Barrett then said, "Well, your work is not satisfactory" ; that he, Davis, then asked Barrett if he sent for him to get rid of him, and Barrett replied, "No, I don't want to get rid of you. Do you want me to?" and he, Davis, replied, "No, sir, I'll go back to work if you say so, or I'll get out if you say so. It is entirely up to you" ; and Barrett replied, "Well, I believe I'll get rid of you," and he, Davis, asked Barrett what he was going to put on the separation slip, and Barrett replied, "I think I'll put unsatisfactory work." On cross-examination, Davis gave credible testimony that Howard never complained to him that he would not fix her looms ; and that neither Spears nor Pruitt ever spoke to him about Howard's looms. Howard, called by Respondent, testified credibly that Davis would aggravate her, that he was fussy ; that she never complained to her supervisor about Davis ; that on one occasion, the time of which she did not give, she got real mad with Davis, and said something to him (Howard did not testify what she said to Davis) and Davis said that her flag was up more than anybody else's in the mill ; that second-hand Pruitt passed about this time, and she said to Pruitt, "I am going to tell that old man what I think one of these days," and that was all she ever said to Pruitt about Davis.20 Spears testified that Davis was unsatisfactory the last 6 or 8 weeks he was employed, that production on part of his looms was low, and that he noticed a lot of flags on Mrs. Howard's looms ; that he talked to Pruitt about it and got no satisfaction, and he then talked to Howard, and Howard told him, Spears, that she could not get her looms fixed when she would flag Davis, and that he was continually fussing at her ; that he then discussed the matter with Barrett on the day Davis was discharged ; this was the first time he had talked to Barrett about it; that Barrett suggested that Davis and Howard come to his office ; that he could not remember exactly what was said, but that when Davis and Howard came in, Barrett said to Davis that it had come to his attention that Davis had been fussing with his weavers and not fixing the looms ; that Howard brought out that Davis fussed at her and refused to fix her looms and had been talking about her to other employees ; that Howard then asked Davis if he had threatened to get her taken off her job and get another weaver appointed to her place, and that Davis admitted that he had ; that Barrett then discharged Davis for unsatisfactory work and fussing at the weaver. 20 Mrs. Howard gave further testimony that she had seen Davis leave her alley when one of her flags was up, and go over to another alley and stay for I% or 2 hours, and that she had seen Davis knock a flag down and walk off. Assuming this may have happened on one occasion , and there was no testimony that it happened more than once, Davis may have had work in the other alley on another loom as he was in charge of a number of looms. Further, when it occurred may have been remote to the time of Davis' discharge. MOORESVILLE, MILLS 599 On cross-examination, Spears testified that after Davis was discharged he questioned Ethel Adams, one of the employees, if she had heard or seen anything to make her believe that Davis was not fixing Howard's looms. Spears then gave the following testimony in reply to questions by the Trial Examiner : Q. I am still a little mystified about why you made inquiries about Mr. Davis after he was discharged. A. Well, I didn't discharge him. Q. Well, you were satisfied Mr. Barrett had sound grounds for discharging him, weren't you? A. I wouldn't question his authority or ability to do anything, whether right or wrong. Q. Were you not doing that, in a sense, by inquiring into what he might have been doing, after he was discharged? A. I don't think I was ; I didn't intentionally do it. On further cross-examination by the Trial Examiner, Spears testified that it was only on Howard's looms he had any trouble with Davis not fixing the looms. Barrett testified that he was working for Respondent at the time Davis was discharged ; that on the day Davis was discharged, Spears told him there was one of the employees who was going to quit because Davis would not fix her looms ; that he asked Spears what was the trouble, and Spears said Davis was fussing with Howard, refusing to fix her looms, and taking her flag down without fixing the loom ; that he directed Spears to bring Davis and Howard to his office; that when Davis and Howard came in, he, Barrett, asked Howard what was the matter, and Howard said that Davis was "fussing at her and had refused to fix her looms, and had been talking about her and had been taking her flags down and not working on the looms at all" ; that he asked Davis if this was a fact, and Davis said "let the lady there answer it"; that he told Davis he had asked him the question, and to answer it, and Davis said, "No, I didn't do it." Barrett testified further as to some conversation in which Howard accused Davis of threatening her if she did not join the Union." Barrett further testified that he then told Howard to return to her work; that he then told Davis he, Barrett, personally thought Davis had been fussing at the weavers ; that Davis then said, "Do you mean to call me a liar." Further testimony by Barrett confirmed some of the testimony by Davis. On cross-examination, Barrett testified that before discharging Davis, Spears told him Davis was interfering with the weavers, and that Davis was not fixing the looms. Barrett was then asked if he knew that Davis was receiving the bonus each week, and replied that he did not know about the bonus. Barrett was then asked : Q. If Mr. Davis was getting the bonus right along about that time, wouldn't it indicate that production was pretty good in the section where he was fixing looms? A. No, sir. Q. What would it indicate? A. The production was too low. Ethel Adams testified that Davis would push Howard's flags down without fixing the looms. 21 Barrett's testimony concerning this conversation is rather confused. It is clear to the Trial Examiner from his observation of Barrett and the record of his testimony in the transcript, that Barrett's recollection of what was said was rather vague and indefi- nite. Spears' testimony is of no value in an attempt to clear up this confusion. Davis' testimony of the conversation is clear and impressive , and in effect, stands uncontradicted. 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Inez Harwell testified that Davis said Howard did not know how to weave ; that she saw Davis look at Howard's flag which was up, turn around and make fun, and walk off. Inez Burke testified Davis would knock a flag down and go away without fixing the loom.22 Conclusion as to Discharge of Davis It is clear from all of the testimony that Davis and Howard did not get along together. Whether this was the fault of Davis or Howard does not appear, and it is obvious from Spears' testimony that he did not take the trouble to find out. It is also apparent that this difficulty had existed for some time. Barrett had no personal knowledge of Davis' conduct, but relied upon what Spears told him. Spears' testimony was very unconvincing. He admitted that all of the trouble was on Howard's looms, and that he talked to Howard about it. Howard, however, testifying for Respondent, does not confirm this. In fact she testified she never talked to any of the supervisors about Davis, except the brief remark one day to Pruitt when the latter was passing, and this remark was not in the nature of a complaint. It is also significant that if Davis' conduct over a period of 6 or 8 weeks, as testified by Spears, was the true reason for the discharge of Davis, Spears had not in all this time brought the matter to Barrett's attention, nor had either Spears or Pruitt reprimanded Davis. It is also significant that Pruitt, the immediate supervisor over Davis, was not called as a witness, nor was his absence explained. Barrett's testimony as to,the conversation in his office at the time Davis was discharged conflicts with the testimony of both Davis and Spears. Barrett testified that he first asked Howard what was the matter, and she explained. Both Davis and Spears testified that Barrett first said, talking to Davis, that it had come to his attention certain things happened. Barrett further testified that after Howard had made her statement, he asked Davis if this was a fact, and Davis replied "let the lady there answer it." This is hardly logical. Why would Davis say "let the lady there answer it" if the lady had already made the statement. It appears more probable that the conversation was as related by Davis and Spears. Barrett's testimony was rather confused and very uncon- vincing, and is therefore discredited. If Davis was neglecting Howard's looms as claimed, it would certainly have affected her production. There were only two other weavers, besides Howard, working in conjunction with Davis. It is hardly reasonable that these two weavers could have produced sufficient material week after week to have over- come the handicap of Howard's alleged disabled looms, to have given the group sufficient production, with a minimum of seconds, for the bonus. Davis' testi- mony that his group received the bonus every week in 1950, except 2 weeks when he was absent part of the time, stands uncontradicted. The record is clear that Respondent was fully informed as to the union activi- ties of Davis. Barrett's testimony, although rather vague and indefinite, makes it clear that what Barrett had in mind was the union activity of Davis. The testimony, however, does not establish that there was any abuse of this privilege by Davis. 22 The testimony of Adams,, Harwell, and Burke has no probative value concerning the discharge of Davis. These three witnesses were indefinite as to when the matters concern- ing which they testified occurred. Harwell was the only witness who even approximated the time, and she testified that it was o8 and on all the time she worked on Davis' job, and this was in response to a question as to when she first heard any remark by Davis as to Howard's work, and not with reference to the refusal by Davis to fix looms. Whether such transactions occurred at or near the time of the discharge of Davis, or at some remote time, was not shown. MOORESVILLE MILLS , 601 Based on all of the evidence, the Trial Examiner finds that the reason given by Respondent for the discharge of Davis was a pretext and that the real reason was the union activities of Davis, in violation of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with its operations described in Section I, above, have a close, inti- mate, 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 Having found that Respondent has engaged in and is engaging in unfair labor practices affecting commerce, it will be recommended that it cease and desist therefrom and take certain affirmative action which the undersigned finds is necessary to effectuate the policies of the Act. The interrogation by Supervisors Lawing and Spears, and Superintendent Thomas' statements to Hawkins, and Respondent's offer of economic benefits and increases at the time of the attempted self-organization of its employees, together with the discharge of Hawkins and Davis, clearly evidence a purpose and disposition by Respondent to thwart self-organization of its employees and deprive them of their rights under the Act. In view of this there is, in the opinion of the Trial Examiner, a likelihood not only that such acts may be re- peated but that other unfair labor practices may be resorted to by Respondent in an effort to prevent self-organization of its employees. To minimize the likeli- hood of recurrent unfair labor practices and to assure the employees the enjoy- ment of their statutory rights, it will be recommended that the Respondent be ordered to cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of their rights of self-organization. Having found that Respondent has discriminatorily discharged Evelyn D. Hawkins and James A. Davis, it will be recommended that Respondent offer the said Hawkins and Davis immediate and full reinstatement to her or his former or substantially equivalent position without prejudice to her or his seniority and other rights and privileges, and to make Hawkins and Davis whole for any loss of pay she or he may have suffered by reason of Respondent's discrimination against them. It is recommended that the loss of pay be com- puted on the basis of each separate calendar quarter or portion thereof during the period from February 21, 1950, and April 12, 1950, respectively, to the date of a proper offer of reinstatement; the quarterly periods hereinafter called "quarters" shall begin with the first day of January, April, July, and October ; loss of pay shall be determined by deducting from a sum equal to that which she or he would normally have earned for each quarter or portion thereof, her or his net earnings, if any, in other employment during that period ; earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter. It is also recommended that Respondent be ordered to make available to the Board upon request payroll and other records to facilitate the checking of the amount of back pay due. (F. W. Woolworth Company, 90 NLRB 289.) It having been found that Respondent has engaged in certain acts of inter- ference, restraint, and coercion, it will be recommended that Respondent cease and desist therefrom. Upon the basis of the foregoing findings of fact and upon the entire record in the case , the undersigned makes the following : 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Textile Workers Union of America, CIO, 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 Evelyn D. Hawkins and James A. Davis, thereby discouraging membership in a labor organization, Respondent has engaged in, and is engaging in, unfair labor prac- tices within the meaning of Section 8 (a) (3) and 8 (a) (1) of the Act. 3. By refusing to reinstate Evelyn D. Hawkins, thereby discriminating against her because she had caused charges to be filed against Respondent and refused to withdraw said charges, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (4) and 8 (a) (1) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 6. Respondent had reasonable cause for the discharge of W. B. McGraw, W. Edd Hendren, and J. D. Ervin, and did not discriminatorily discharge said employees in violation of Section 8 (a) (3) of the Act as alleged in the complaint. 7. Respondent did not prevent and interfere with the distribution of union literature by causing the arrest of a union agent engaged in distributing such literature, in violation of Section 8 (a) (1) of the Act as alleged in the complaint. [Recommendations omitted from publication in this volume.] CROWN PRODUCTS COMPANY and UNITED RUBBER, CORK, LINOLEUM AND PLASTIC WORKERS OF AMERICA, C. I. O., PETITIONER. Case No. 17-RC-1260. June 10, 1952 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Martin Sacks, hearing officer. The hearing officer's rulings made at the hearing are free from prej- udicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. No question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: On March 21, 1948, the Employer and the Intervenor, Federal Labor Union, Rubber Workers' Local No. 23021, AFL, executed a 99 NLRB No. 99. _