Burlington Mills Corp.

252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner interfere with , restrain , or coerce our employees in the exercise of their right to self-organization , to form labor organizations , to join or assist the above-named union or any other labor organization , to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes 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 employment as authorized in Section 8 (a) (3) of the Act. WE WILL offer Joan Grosso and Grace Chilson immediate and full rein- statement to their former or substantially equivalent positions , without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of our unlawful action against them. All our employees are free to become or remain, or to refrain from becoming or remaining, members of the above-named union or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with section 8 (a) (3) of the Act. THE SYRACUSE STAMPING COMPANY, Employer. By ----------------------------------------- (Representative ) ( Title) Dated -------------------- This notice must remain posted for sixty (60) days from the date hereof, and must not be altered , defaced, or covered by any other material. BURLINGTON MILLS CORPORATION ( ROANOKE WEAVING PLANT) and TEXTILE WORKERS UNION OF AMERICA, CIO. Case No. 5-CA-434. January 14, 1953 Decision and Order On June 19, 1952, Trial Examiner Ralph Winkler issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Murdock, and Styles]. The'Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the 102 NLRB No. 26. BURLINGTON MILLS CORPORATION 253 case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, with the additions and modifications noted below.' We agree with the Trial Examiner that the Respondent discrimi- natorily discharged J. O. G. Ashwell and Pearl Hammond on April 20 and April 24, 1951, respectively, in violation of Section 8 (a) (3) and (1) of the Act. We also agree with the Trial Examiner that the Respondent in violation of these sections of the Act discriminatorily refused reemployment to William T. Altice in October 1951. In ac- cepting the Trial Examiner' s findings as to these three employees, the Board has taken into consideration the numerous acts of interference, coercion, and promises, detailed in the Intermediate Report,2 by which the Respondent sought to break the Union's organizing drive from its very inception early in 1951. We are persuaded that the discrimina- tory acts of the Respondent with regard to the three named employees were intended as a warning to the remaining employees that neither long tenure with the Respondent nor previous records of competent performance would protect the jobs of those employees who indicated a preference for the Union. J. O. G. Ashwell: As the Trial Examiner found, this employee had served the Respondent as a loom fixer since 1943. His excellence in that capacity is undisputed. He was an "A-Number 1 loom fixer" who cooperated with his supervisor "100 percent." Although the Respondent denies that it had knowledge of Ashwell's union member- ship, the record reveals that Ashwell had indicated to Second Hand Sell, one of Respondent's supervisors, his interest in the Union. After joining the Union he was told by his immediate supervisor that his "attitude" was not right. Until spoken to directly by his general overseer, he resisted the request of his foreman to attend the April 10 meeting at which the plant superintendent delivered an antiunion speech. Subsequently, Ashwell was interrogated by his supervisor X As the Respondent discriminatorily refused to rehire William T. Altice, we shall order that the Respondent , in order to effectuate the policies of the Act, offer Altice employment in the position for which he applied, without prejudice to seniority or any other rights or privileges , and make him whole for any loss of pay he may have suffered by reason of the Respondent's discrimination against him , by payment to him of a sum of money equal to that which he would have earned from October 31, 1951, the date by which the Respondent would have recalled him but for its discrimination , to the date of the Respondent's offer of employment, less his net earnings during this period . The section of the Intermediate Report entitled "The Remedy" is hereby modified to the extent that it is inconsistent with the foregoing. 1 In addition to the other statements of Respondent's supervisors found violative of the Act by the Trial Examiner, we find that the remark of Overseer Tillotson to employee H. C. Wray, according to the latter's credible testimony, that employees who favored the Respondent would be "raised up" while those for the Union would be "worked around out the door" is a further violation of Section 8 (a) (1) of the Act. The Interrogation of Alton Chisom concerning his signing of a union card and how be was going to vote, as well as the warning to Chisom to "watch (his) step," were correctly described by the Trial Examiner but ascribed erroneously to Second Hand John Stone. The interrogation and warning were made by Alton Chisom's Overseer, Johnson. 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as to how he intended to vote in a forthcoming Board-conducted election. He refused to answer the supervisor's question .3 He was told by his supervisor that the Respondent believed the Union had started in the corner where Ashwell was located. The Respondent contends that Ashwell was discharged because of a "smash" that oc- curred on one of his looms. While the record reveals that a "smash" causes damage to a bolt of cloth being woven on the loom, the testi- mony of a number of witnesses, including Ashwell's immediate super- visor, was to the effect that this type of accident was "nothing unusual." No evidence was introduced that any other loom fixer with a previous record of efficiency had ever been discharged for this reason. No contention is made by the Respondent that Ashwell's con- duct was motivated by a desire to sabotage Respondent's production. Under these circumstances, we are convinced and find, as did the Trial Examiner, that the Respondent knew of Ashwell's union sympa- thies and discharged him for this reason, seizing upon the pretext of a single "smash" on one of his looms. Pearl Hammond: Four days after Ashwell was discharged, Ham- mond, a weaver for the Respondent since 1937, was discharged under similar circumstances. He was discharged allegedly because he had produced defective cloth on each of 3 days before his discharge. Ham- mond had solicited other employees to join the Union and he had refused, when requested twice by his immediate supervisor, to attend the April 10 meeting addressed by the plant superintendent. The record indicates that all weavers make seconds. Employee Barnhardt testified that he was transferred to a weaver's job even though in a previous brief experience he had made 30 percent "seconds" for which lie was neither reprimanded nor discharged. Shortly before Ham- mond's discharge the number of looms for which weavers were re- sponsible was increased from 45 to 60. The Respondent's general overseer admitted that after such a change in work assignments the number of seconds "generally speaking" goes up. As in the case of Ashwell, there is no contention that Hammond was motivated by a desire to sabotage the Respondent's production. Like the Trial Ex- aminer, we cannot believe that an employee of 13 years' standing would be summarily discharged for the reason offered by the Respond- ent. We are persuaded, rather, that the Respondent was aware of Hammond's efforts in behalf of the Union and discharged him to rid itself of a strong union adherent. William T. Altice : The record indicates that this employee was 1 of the 3 or 4 employees most active on behalf of the Union in its e In an apparent inadvertence, the Intermediate Report ascribes the question itself to Ashwell. BURLINGTON MILLS CORPORATION 255 organizational campaign. Upon his own initiative he had informed his immediate supervisor on 2 separate occasions that he was an ad- herent of the Union. Another employee of the Respondent, H. C. Wray, testified that he had answered affirmatively Overseer Tillotson's question as to whether Altice was a "hot Union man." Altice was a competent employee and had been so informed by his supervisor at the time of his layoff on August 27, 1951. During the month of October 1951 the Respondent employed 25 new employees, including sweepers and some in other categories in the weave room. There is no contention that Altice, who was experienced in a number of jobs in the weave room,4 was not qualified to fill one of the positions. Nevertheless he was not recalled. Several months later the position he had held was filled by a new employee. Although the evidence, as the Trial Examiner found, does not preponderate in favor of the conclusion that Altice's layoff was the result of unlawful discrimina- tion rather than economic necessity, we are persuaded, as was the Trial Examiner, that he was discriminatorily refused reemployment, at least since October 31, 1951, because of his prounion record. Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Burlington Mills Corpora- tion (Roanoke Weaving Plant), Vinton, Virginia, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Textile Workers Union of Amer- ica, CIO, or in any other labor organization of its employees, by dis- charging, laying off, or refusing to reinstate any of them because of membership or activities on behalf of any labor organization, or by discriminating in any other manner in regard to hire and tenure of employment or any term or condition of employment, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. (b) Interrogating employees concerning their union membership and activities, threatening to discharge or lay off employees or to shut down plant operations or holding out job advantages because of union membership and activities or the lack of it, soliciting, inducing, and assisting employees to withdraw from unions, or in any other manner 4 Altice's previous experience included weaving, hanging warps, and pulling old warps. When laid off he was a "warp and smash man." 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the aforestated or any other labor organization, 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 rights may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to J. O. G. Ashwell and Pearl Hammond full reinstate- ment to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges and make them whole for any loss of pay resulting from the discrimination against them, in the manner set forth in the section in the Intermediate Report entitled "The Remedy." (b) Offer to William T. Altice immediate and full employment in the same or substantially equivalent position for which he applied and to which the Respondent failed to recall him by October 31, 1951, without prejudice to his seniority or other rights and privileges and make him whole for any loss of pay resulting from the discrimination against him, in the manner set forth in the section in the Intermediate Report entitled "The Remedy." (c) Upon request, make available to the Board or its agents, for examination and copying, all payroll records, social-security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of back pay due and the right of reinstatement under the term of this recommended order. (d) Post at its plant at Vinton, Virginia, copies of the notice at- tached hereto as an appendix." Copies of said notice, to be furnished by the Regional Director for the Fifth Region, shall after being duly signed by the Respondent, be posted immediately upon receipt thereof and be maintained by it for sixty (60) consecutive days thereafter in conspicuous places including all places where notices to employees are customarily posted. The Respondent shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material. (e) 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. 6 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." BURLINGTON MILLS CORPORATION 257 It is also ordered that the complaint be dismissed as to George Bennett. 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, or activities on behalf of, TEXTILE WORKERS UNION OF AMERICA, CIO, or in any other labor organization, by discriminating in regard to hire or tenure of employment or any term or condition of employment except to the extent that such right may be affected by agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL NOT interrogate employees concerning their union membership and activities. WE WILL NOT solicit or assist employees to withdraw from the above-named labor organization. WE WILL NOT threaten to discharge or lay off employees or to shut down our plant because of their union membership and activities or hold out job advantages should they refrain from such membership and activities. WE WILL NOT in any other manner interfere with, restrain, or 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, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to re- frain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as author- ized in Section 8 (a) (3) of the Act. WE WILL offer to J. O. G. Ashwell and Pearl Hammond im- mediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges enjoyed and make them whole for any loss of pay suffered as a result of the discrimination against them. WE WILL offer to J. O. G. Ashwell and Pearl Hammond im- statement in the same or substantially equivalent position for which he applied but for which he was not recalled by October 31, 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1951, without prejudice to his seniority or other rights and priv- ileges and make him whole for any loss of pay resulting from the discrimination against him. BURLINGTON MILLS CORPORATION, (ROANOKE WEAVING PLANT ) , Employer. By ------------------------------------ (Representative ) ( Title) Dated-------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon charges and amended charges filed by Textile Workers Union of America, CIO, herein called the Union, the General Counsel for the National Labor Rela- tions Board, by the Regional Director for the Fifth Region (Baltimore, Mary- land), issued a complaint on January 3, 1952, against Burlington Mills Corpora- tion (Roanoke Weaving Plant), herein called the Respondent, alleging that the Respondent had engaged in specified conduct violating Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the Labor Management Relations Act, 1947, 61 Stat. 136, herein called the Act. Copies of the complaint and charges were served upon the Respondent; and the Respondent filed an answer denying the commission of the unfair labor practices alleged. Pursuant to notice, a hearing was held in Roanoke, Virginia, from January 29 until February 1, 1952, before the undersigned Trial Examiner. The General Counsel, the Respondent, and the Union were represented at the hearing and all parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The undersigned dismissed an allegation of discrimination respecting one R. W. Overstreet, who did not appear at the hearing although notified to do so. No reason was offered by the General Counsel for Overstreet's failure to appear and no evidentiary support for the allegation in question was adduced. The parties were granted opportunity to present oral argument before the Trial Examiner, and they also were granted permission to file briefs and pro- posed findings of fact and conclusions of law. A motion by the Respondent to dismiss the complaint is disposed of in accordance with the following findings .of fact and conclusions of law. Upon the record in the case, and upon observation of the demeanor of wit- nesses, I make the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent is a Delaware corporation with plants in several States, including the Roanoke Weaving Plant at Vinton, Virginia, where it manufac- tures rayon cloth and where the present action arose. In 1951, the Respondent BURLINGTON MILLS CORPORATION 259 purchased raw materials and sold finished products respectively valued in excess of $100,000, at least 50 percent of which involved interstate shipments. I find that the Respondent is engaged in commerce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Advent of the Union and the Respondent's response The Union began organizing employees of the Respondent early in 1951, and on April 16 that year it filed a representation petition. The Board issued a Decision and Direction of Election on September 28, 1951, and the election was held on October 26, 1951 (96 NLRB No. 69). The Union lost the elec- tion and the representation petition was dismissed. On or about April 10, 1951, various supervisors directed the employees to attend a meeting at which Plant Superintendent Junius Murphy addressed the assem- blage. The meeting was held on plant premises during working time and at least one employee was advised by Second Hand Stone that employees would lose no pay while attending the meeting. Murphy told the employees, among other things, that he could not see how the Union would help them, that their working conditions and benefits were at least comparable to those prevailing in union mills, and that "we had a nice mill there" and he couldn't "see what was the matter with people wanting to come in and spoil it." Overseer Clay Holland had notified employee James Perdue of the Murphy meeting and Perdue indicated his reluctance to attend. Holland thereupon told Perdue, according to Perdue's credible testimony which Holland denied, "Well, if you don't go, I'll know which side of the fence you're on. I'll know if you're against me or for me." Hugh Brown, an assistant regional director of the Union, testified that approxi- mately 250 employees had applied for union membership during the organiza- tional campaign and that between 300 and 350 employees later sent in letters of withdrawal to the Union. The circumstances under which some of these with- drawal letters were executed show that the Respondent played an active role in instigating and preparing at least some of them. Thus, employee James Perdue credibly testified that Overseer Clay Holland (the Respondent admits, and I find, that overseers and second hands are supervisors within the meaning of the Act) told him in May 1951, "I know you haven't got a card down at Lynchburg [where the Union had an office], but well, several of the boys are writing down there asking for the cards back. I'd like for you to write a letter down to ask for a card to discourage them anyhow." Holland then produced some stationery and dictated a letter of withdrawal to the Union which Perdue wrote. Perdue gave Holland the unsealed letter which was later received by the Union' Sometime in May 1951, employee William Karnes was approached 1 Later that same day Perdue sent a letter to the Union stating in part : In regard to the letter that I wrote tonite at the Roanoke Weaving Mill. The Supt. asked me would I write it. I didn't refuse in front of him for if I had, he would know that I had signed a card & probably would make it hard for me, or find some excuse to discharge me. He will mail that other letter. I have just come from work & writing you now. So disregard the other letter for I am 100 % for the Union. 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by Bob DeLong, his superior.' DeLong asked Karnes whether he had signed a union card and Karnes replied that he had. DeLong then asked Karnes to write for its return. Karnes did nothing about the matter and a few days later DeLong again spoke to Karnes about withdrawing his union card. DeLong called Karnes into the office and wrote a letter of withdrawal which he sub- mitted to Karnes for the latter's signature. Karnes asked DeLong whether he, Karnes, might mail the letter. DeLong replied that he "had some more to mail and ... would take care of that," including "the stamp, envelope and all." This letter, too, was received by the Union. Other employees also wrote letters of withdrawal under similar circumstances during this period. Thus Overseers Holland and Garrett Tillotson both asked employee Herbert Wray to write such a letter. Wray told them he would "rather not get into it." Holland asked Wray the following day whether he had decided to write the letter and Holland told Wray, according to the latter's credible testimony, that "if you don't write it Mr. Murphy [the plant superintendent] will know what side of the fence you [are] on" and that "you got to be one way or the other." Holland returned to Wray soon afterward and Wray wrote the withdrawal letter in the office. Holland told Wray what to say in the letter, Wray having stated that he didn't know how to compose it, and Wray gave the letter, unsealed, to Holland. Holland told Wray at the time that he was going to send "about 200 more."' Second Hand Al Wilson also asked employee Andrew Karnes if he was willing to write a withdrawal letter, and Wilson dictated the contents of such letter which Karnes wrote on stationery furnished by Wilson. Karnes gave the unsealed letter to Wilson and the Union received the missive shortly afterward.` Wilson also asked employee Alvin St. Clair whether he had signed a union card and when St. Clair replied he had not, Wilson said that he "thought there was cards been sent in with other peoples' names on them which had been forged" and Wilson thereupon asked St. Clair to write a withdrawal letter. St. Clair refused to do so. Second Hand John Stone also asked employee Alton Chisom whether he had signed a union card and to recall his card. When Chisom said he would not do so, Stone told him that he had "better watch . . . [his] step around there then." These withdrawal incidents took place in the mill during working hours and the record further shows, according to employee Otha Chisom's testimony, that 2 Although the Respondent contends that DeLong was not a supervisor, I credit Karnes' testimony that DeLong was his superior at the time, that DeLong gave him his orders, and that he carried out DeLong's Instructions Whether or not DeLong was a supervisor within the meaning of the Act, and I find that he was, under the circumstances I find the Respondent liable for his conduct in question. See Macon Textsle8, Inc., 80 NLRB 1525, 1528. ' Perdue later sent the Union a letter at Wray's request stating, in part : I am writing this for H. C. Wray. The Supervisor at the Roanoke Weaving Mill had him to write a letter stating that he didn't want to have anything to do with the Union. He refused at first but Mr. Holland Supervisor of 2nd shift & Mr. Tillston Supervisor of 1st shift told him that the ones that didn't write a letter They would know that he or she, are for the Union & they would make it hard for them later on . . . . They are going around to all in the mill to get them to write letters. They are telling them what to write, they are furnishing the paper & stamps, & are doing the mailing themselves. * Karnes later sent the Union a letter stating, in part I wrote you a letter last night. Stating I didn't want anything to do with the Union at Roanoke Weaving. Well when I wrote that letter I had a boss sitting beside me He asked me to write it so I did to try to let him think I wasn't for the union but I am for it So when the letter arrives dated May 8 just avoid that letter & also leave the card with my signature on it down there for I am try as hard as I can to help get the Union in Roanoke Weaving. BURLINGTON MILLS CORPORATION 261 other employees wrote similar letters during working hours and "they was all taking them to the office," Chisom having left his own letter there without even an addressed envelope. Various members of the Respondent's supervisory staff engaged in other con- duct on company time and premises throughout the preelection organizational period, which conduct further bespeaks the Respondent's attitude toward the Union. Alton Chisom credibly testified that in or about April 1951 Second Hand Stone asked Chisom whether Chisom had "anything to do with the Union," Stone stating that the Union "wouldn't do no good around this place." Stone also asked Chisom how he was going to vote in the election. Shortly before June 29, 1951, Stone also asked employee Mary Harmon, according to the latter's credible testimony, how she was going to vote. According to the credible testimony of employee Robert Betterton, Second Hand Wilson asked Betterton how he was going to vote in the election and what he thought about the Union. On the eve of the election in October 1951, according to Perdue's credible testimony, Wilson told Perdue, "You do what you want to. You got to consider your friends and your future of what to do." Leon Hucks is the Respondent's superintendent or general overseer of weaving. In or about October 1951, Hucks told William Karnes, according to Karnes' credible testimony whose denial by Hucks I do not believe, that he, Karnes, "can vote the way you want to" but "there's not going to be any Union here .. . the Burlington Mills would not work under it . . . this place will close down if the CIO comes in here." Shortly after organizational activities began , Overseer Holland told Chisom, according to the latter's credible testimony, that Holland "had been hearing things about me [Chisom] going around trying to get people to join the Union . . . and if I didn't like that place to work, that I could get out and go somewhere else ; and that they was not going to have a Union there as long as they could keep it out."' And in or about September 1951, Holland told Wray he had heard that Perdue and the union organizer had visited Wray. Holland asked Wray, according to the latter's credible testimony, what these men had to say and he told Wray that "if the Union comes in here the Company will close down ; we'll both be out of work." About a week before the October election Holland asked Perdue, according to Perdue's credible testimony, whether he and other employees had been seeing the union organizer and what they had discussed with the organizer! Perdue was an observer for the Union at the election, and Holland told him the day before the election that Holland did not want Perdue talking to anyone during Perdue's shift that day. That day, Holland and Second Hand Wilson kept Perdue under constant surveillance even while Perdue was changing his' clothes in the washroom at the end of the shift. Superintendent Murphy also told a group of employees in his office sometime before the election that he "wanted us to vote the way that would help our families in the future." The Respondent not only manifested to employees that a successful union campaign would adversely affect their job security but it also held out affirmative job advantages should the employees reject the Union. Thus, in October 1951, employee David Barnhardt sought work on the second shift rather than on the third shift which had been offered him, and Barnhardt told Second Hand Ammon Sell in a conversation concerning the matter that the employees needed a union in the mill. The following day, Overseer Tillotson offered Barnhardt a second shift position and later the same day Sell told Barnhardt that "I wanted to show 5 I do not believe Holland's different version of the incident. 6 According to Holland , Holland asked Perdue whether he had seen the union organizers and what the Union had promised to do for the employees. 250983--vol. 102-53-18 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD you that the open door policy would work. I wish you'd tell those fellows up there about it." Sell also suggested that Barnhardt tell Overseer Hucks "that they don't want any Union in there." The Respondent's supervisory staff engaged in the foregoing activities on com- pany time and premises, during which period the Respondent maintained a notice on its bulletin board stating in part as follows : It is not necessary, and it is not ever going to be necessary, for anybody to belong to the CIO Union, or any other Union, in order to work for this Company. No person will be allowed to carry on Union organizing activities in the Plant during working hours. Anybody who undertakes to do so and who thereby interferes with his own work or the work of others will be discharged. We will not tolerate any act by the Union or Union members which is done with the purpose of causing any trouble in the plant for employees who are opposed to the Union. Those who undertake to put such pressure on other employees whose cases I shall now consider. It was during this same period that the Respondent terminated the four employees whose cases I shall now consider. B. Alleged discrimination J. 0. G. Ashwell was discharged on April 20, 1951, after serving the Respond- ent as a loom fixer since 1943. Stone was his second hand, Holland his overseer, and Hucks the general overseer. Ashwell joined the Union, but did not otherwise participate in its organizational drive. After Ashwell had signed his union card, according to Ashwell's credible testimony, Ashwell complained to Hucks that Stone had spoken to him (Ashwell) "in a way that I didn't like." Ashwell then followed Hucks' suggestion to discuss the matter with Stone. Stone told Ashwell, "You're an A-Number 1 loom fixer. You cooperate with me 100 percent, you do everything I tell you, and you do all you can to help others. But. your attitude is not right." Stone said that Holland also "has noticed your attitude not being right." When Ashwell asked Stone what was wrong with his "attitude," Stone replied, "I don't know," and walked away. This was the first time during Ashwell's long employment period that the Respondent had criticized Ashwell's "attitude." About a week later, in connection with the aforementioned Murphy meeting, Stone told Ashwell that some of the employees had asked Murphy to meet and discuss some problems with them. Stone told Ashwell, according to Ashwell's credible testimony, that if "I had any problems that I wanted to discuss with him [Murphy], or anything to get off of my chest that he [Murphy] would be in the dining room at 4: 30." Ashwell replied he had no problems to discuss and nothing to get "off of my chest." Ashwell and several others remained on the job when the meeting began whereupon Hucks came up to Ashwell and asked him to attend and "listen to what Mr. Murphy has to say." Ashwell then went to the meeting after informing Hucks that he had not known everyone was required to attend. The day after the meeting, Stone approached Ashwell during working hours. Stone, paper and pencil in hand, told Ashwell, according to Ashwell's credible testimony, that "the Company has got to know where they stand. I'm going to ask you how are you going to vote."' Ashwell replied that this was his own 7 Stone denies this testimony. BURLINGTON MILLS CORPORATION 263 "personal business" and he refused to answer Ashwell's question. Stone there- upon told Ashwell "it would be wiser" for Ashwell to talk to Murphy and Hucks. Then Ashwell asked Stone whether Murphy and Hucks thought Ashwell had started the Union because he had not attended the meeting until Hucks went to get him. Stone replied, "Yes, they think it started over in this corner where you're at." At the home of Second Hand Scott's mother-in-law a day or two after Ashwell's discharge, Ashwell told Scott "it was awful dirty that they think because I didn't attend that meeting was probably the reason they thought I was heading the Union." Scott replied, as Ashwell credibly testified, that "it wasn't the first dirty trick the Company did and it wouldn't be the last one ; and that they'd spend a million dollars to keep the Union out." Hucks denied knowledge of Ashwell's union membership and he testified that he discharged Ashwell because Ashwell's alleged neglect of a shuttle resulted in a so-called "smash." As a loom fixer, Ashwell was responsible for the main- tenance of the looms on his shift. Altogether there were 40 looms in Ashwell's section at the time, all of which were operated throughout 3 shifts, with a loom fixer on each shift. In addition to general responsibility for the upkeep of all 40 looms, each loom fixer was assigned 13 of these looms for servicing. A shuttle is a moving part of the mechanism, and each loom fixer was supposed to check his 13 shuttles each day, taking the shuttle in hand and, among other things, applying a screw driver to screws in the shuttle to make certain that the screws were tight. A screw, held by a nut, is located at the top of the shuttle, somewhat recessed and pointed downward. On the day before his discharge this top screw was ejected from one of Ashwell's shuttles, thereby damaging a portion of the bolt of cloth being woven on the loom in question. The ejection occurred as a result of the threads stripping on the nut holding the screw. The testimony is conflicting as to whether this smash (this is the term ap- plied where an "excessive amount of ends has broken out of a warp") occurred either shortly after Ashwell's shift began, as Ashwell testified, or about 3 hours later, as Respondent asserted. According to the Respondent, the smash occurred at about 6 p. in , the shift beginning at 3, and it adduced testimony to the effect that Ashwell should have checked the particular shuttle by that time and that he would have discovered the defective situation had he so checked the shuttle at the beginning of his shift. Ashwell admitted that the screw incident occurred before he had checked that particular shuttle that day. But he testified that when he began his shuttle check he discovered the very first loom to be defective, although running at the time, and that he made the necessary repairs, before checking the remaining 12 shuttles, in order to get the first defective loom in proper condition for continued operation. The screw came out of 1 of the 12 other shuttles, according to Ashwell, as he was repairing this first loom. Ash- well testified that although he was supposed to check all 13 shuttles, the Respond- ent had particularly emphasized to the loom fixers that they should keep the looms going and get defective looms into operation as quickly as possible. Ac- cording to Second Hand Stone, Ashwell should have completed his check of all shuttles before making any major repairs on any of them. The Respondent's contention respecting Ashwell's alleged neglect, and in support of which it offered testimony, is that the stripped threads can only be caused by too much pressure applied by the loom fixer in tightening the screws, that the loom fixer would know immediately that a thread is stripped, and he then would be obliged to replace the defective part at once. Therefore, ac- cording to the Respondent, Ashwell negligently failed to replace the defective nut when he had overtightened the screw earlier. Furthermore, according to 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent, Ashwell was also negligent in not noticing the stripped thread on the day of the smash ; for, had he made his shuttle check timely, according to the Respondent, he "might" or would have discovered the defect before the screw was ejected. If Ashwell had overtightened the screw, he did so at least 3 shifts earlier, and the shuttle in question had been in operation from such time until the time of ejection. The substance of Ashwell's testimony in this respect is that the stripping of the thread and ejection of the screw could occur and did occur without his prior knowledge of the stripping and without any negligence by him. Smashes occur frequently in weaving operations, for various reasons, and all loom fixers have trouble with shuttles. The record also shows that shuttle screws sometimes become loose and are ejected because of the vibration of the machines in operation, but Hucks testified that he had never before heard of a screw being ejected because of stripped threads. Hucks also testified that Ashwell's work was not "up to par" the last 2 or 3 months before his discharge and that Stone had complained several times during this period that Ashwell was not performing his work as well as he had been doing. I assume that the Respondent adduced this testimony as being one of the circumstances contributing to Ashwell's discharge. According to Stone, however, there always are routine complaints concerning all loom fixers and Stone's further testimony refutes Hucks' claim of a deterioration of Ashwell's work during the weeks immediately preceding the discharge. I am satisfied by the preponderance of evidence that the Respondent dis- criminatorily discharged Ashwell. And I reach this conclusion even assuming, although I find otherwise, that the screw incident occurred at 6 o'clock rather than shortly after 3 o'clock that afternoon. I do not believe that Ashwell know- ingly stripped the nut and I do not believe that the Respondent thought he did. And I also do not believe that the Respondent thought Ashwell negligent in not discovering and replacing the stripped nut before the screw was ejected. There is no showing that the damage caused any substantial monetary loss to Re- spondent and even if a stripped nut is a rare event it was not unusual for various defects to cause smashes including the ejection of screws through loosening. The Respondent is undoubtedly opposed to the Union and it took certain measures to defeat the organizational campaign. True, Ashwell was not an outstanding union member, but that itself is not decisive. I do not credit the Respondent's claimed ignorance of Ashwell's union membership. It is clear to me, in any event, that the Respondent had adequate reason to suspect and I find that it did suspect Ashwell's union proclivities. There are still other cir- cumstances which cause me to reject the Respondent's contentions and to accept those of the General Counsel. For example, the claim that Ashwell's work performance deteriorated toward the end of his employment. This claim was refuted, in effect, by Stone himself. Also, I have attempted, as conscientiously as I know how, to evaluate the testimony and demeanor of each witness and I must say that Hucks did not impress me, whereas Ashwell did 8 The Respondent Introduced as Exhibit No. 1 a so-called smash board report purporting to be the report of smashes for the day of the screw incident and also showing a smash at 6: 10 on one of Ashwell's looms. Together with the Respondent's testimony, this would show, if true, that the smash in question did not occur when Ashwell said it did and there would then be a substantial question as to Ashwell's veracity on contested issues. Rowena Foutz, the weaver on duty at the time, testified that she made the time entries on a smash report on the day in question. Foutz, however, was unable to state whether or not the writing on the exhibit was hers, although she otherwise corroborated Ashwell's testimony as to the time of the Incident. Foutz and Ashwell were trustworthy witnesses in my opinion and, also in my opinion, the Respondent's witnesses who testified on the issue were not. Records can be fabricated, as testimony often is, and I can only conclude that the particular exhibit does not comport with my understanding of what happened. BURLINGTON MILLS CORPORATION 265 I conclude that the Respondent discharged Ashwell because it believed him a union proponent. Pearl Hammond began working as a weaver for the Respondent in June 1937; he was discharged 4 days after Ashwell, on April 24, 1951. Hammond joined the Union and solicited other employees, off the plant prem- ises, to do the same thing. The meeting at which Superintendent Murphy addressed the employees, as discussed earlier, occurred about 2 weeks before Hammond's discharge. Second Hand Sell, Hammond's immediate supervisor, instructed Hammond to attend the meeting which Sell described to Hammond as one at which some of the employees desired to discuss some problems with Murphy. Hammond told Sell he had no problems. Sell returned a few minutes later and again requested Hammond to attend. Hammond did not attend the meeting. Also about 2 weeks before his discharge, Sell approached Hammond saying according to Hammond's credible testimony, "Pearl, you're on the wrong side. You got to be on one side or the other." ° Hammond replied that "you can't prove I'm on the wrong side," whereupon Sell stated, "No, you show it though." Sell also stated that "The Union wasn't good. It was all right to have a union at [other plants] . . . , but it wouldn't do us no good down there." General Overseer Hucks discharged Hammond in April 1951 and denied knowl- edge of Hammond's union activities at the time. Hucks testified that he had received complaints respecting Hammond's work during the 4 or 5 weeks prior to Hammond's discharge, that Hammond became progressively worse during this period, and that he finally discharged Hammond when Hammond produced defective cloth on each of the 3 days immediately before the discharge. Over- seer Tillotson, Second Hand Sell, and loom fixer Taylor corroborated Hucks' assertions concerning Hammond's performance and to the effect that Hammond did not pay sufficient attention to his work during the period before Hammond's discharge. On one occasion, while discussing the number of seconds, Hammond told loom fixer Taylor that he "didn't care how many seconds he made, that the cloth belonged to the Company and let them grade it like they wanted to." Taylor reported this conversation to Sell. At the time of his discharge, Hammond was operating 60 looms, the number having been increased from 45 looms about 6 weeks before. Three days before the discharge, Tillotson called Hammond's attention to a defective piece of cloth and told Hammond he would have to improve, and on the last day Hucks called Hammond into his office. Hucks showed Hammond the last of the afore- mentioned three items of defective cloth and said that the Respondent couldn't tolerate such production. Hammond replied he was doing the best he could. Hucks then said "it looks like you're not interested in your job" and that he would have to discharge Hammond, to which Hammond replied, "if that's the way you feel about it, it's all right with me." I do not believe that the purposes of this case would be served in detailing each of the items of defective cloth produced by Hammond on the 3 days before his discharge. All weavers commonly produce defective cloth and I am unable to find on this record that Hammond's production record was worse than the average weaver's production even on the 3 days in question. While Hammond did have defective production on these 3 days, it is significant that Hammond operated 59 other looms on each of these days without any showing of faulty production as to these 59 looms. Considering the chronology of union organization in the mill and the Re- spondent's active opposition to the Union and Bell's statement that Hammond ° Sell could not recall whether or not he told this to Hammond. 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was "on the wrong side" of the union picture, I find it difficult to accept the Respondent's contention that it discharged Hammond after 13 years' employment for the reasons offered by the Respondent. I am, of course, also mindful that Hammond was not the perfect employee. I conclude that the complaint as to Hammond's discharge is supported by a preponderance of the evidence. George K. Bennett was discharged on May 24, 1951. He had been in the Re- spondent's employ as a weaver since 1945, except for an approximate 1-year period at the end of which, in 1947, the Respondent recalled him. Bennett joined the Union during the organizational campaign in the Union. Second Hand Stone, who was Bennett's immediate supervisor, one day asked Ben- nett, according to Bennett's credible testimony which Stone denied, whether he had any union cards and Stone also asked Bennett how he was going to vote. Bennett replied that he had received a union card by mail but that he wouldn't tell Stone how he would vote, because "if I do it will be hard on me," whereupon Stone commented, "I guess you're right." At the time of his discharge, Bennett was operating 60 looms, each of which was weaving cloth containing approximately 6,000 threads in cloth 61 inches wide. When 1 of these threads breaks, the term "end ran out" is applied to the broken thread, and ends running out is not an uncommon occurrence. The machine itself should stop when a thread breaks, but it frequently does not, and when it fails to do so the single broken thread curls up behind the machine and it leaves a faint line in the material being woven. Material with an end out is sold as seconds. The weaver is supposed to inspect the machines and cloth for ends out. Rucks denied knowledge of Bennett's union membership and the Respondent claims that it discharged Bennett because an end ran out on one of his looms (luring his entire shift of May 23, 1951. Hucks summoned Bennett the follow- ing day and asked Bennett what he would do about a weaver who permitted an end to run out during an entire shift, it being unusual for an end to run out through an entire shift. Bennett replied he would try to get the weaver to improve. Rucks then stated that all the second hands had said Bennett was a "no-count" weaver, to which Bennett replied, "Why don't you get rid of me?" Rucks responded, "I believe I will." Thus Bennett was discharged. The Respondent adduced testimony to the effect that Bennett was below average during his entire employment period and that he had more seconds than the average weaver and that he did not cooperate with employees on his suc- ceeding shift in respect to operations. Mary Harmon was a weaver in the second shift. About 10 days before Bennett's discharge, according to Harmon-whom I consider to be completely trustworthy, an end ran out on a bolt of cloth for 3 hours during the third shift and continued through the entire first shift of Doris Smithers and was not caught until it had also run through 5 hours of Harmon's shift. Hucks and other supervisors denied any knowledge of the end running through Smithers' entire shift, although it is not disputed that they would have known about it had it occurred. However, Harmon testified, and credibly so in my opinion, that Holland and Stone did know of the Smithers-Harmon "ends out" and Smithers was not herself called to rebut Harmon's testimony. Smithers is still in the Respondent's employ. Union membership and an antiunion-minded employer do not themselves se- cure an employee against discharge for cause, although in combination with other factors they are entitled to weighty consideration in ascertaining an em- ployer's motive for discharge. Also in the present case I am satisfied that the Respondent accorded disparate treatment to Smithers and Harmon , which cir- BURLINGTON MILLS CORPORATION 267 cumstance itself is a suspicious one. Then, too, there is the fact that Bennett was an employee of fairly long standing, approximately 5 years, and that the Respondent discriminatorily discharged Hammond and Ashwell, also employees with much longevity, within the same month. Despite these circumstances, I am constrained to find, although I should like to do so with more assurance, that a preponderance of the evidence does not sustain the complaint as to Bennett. Accordingly, I shall recommend dismissal of the allegation in question. William T. Altice had been in the Respondent's employ for about 3 years when he was laid off in August 1951. Overseer Holland had complimented Altice many times about his work. About 2 months before his layoff Second Hand Bennie Scott, Overseer Clay Holland being present, accused Altice of posting a union bulletin in the washroom. Later that day Altice told Scott, according to Altice's credible testimony, that "up to then I was for the company, but after he accused me of putting up Union papers in the water house I was for the Union." Holland laid off Altice in August 1951 allegedly because of curtailed mill operations and Scott testified that he followed established seniority rules In doing so. General Overseer Hucks testified in this connection that the plant operated but 2 weeks in August 1951 and only 8 days in September, that it was necessary to reduce the working force by 32 employees, and that Altice had the least seniority in his particular job classification on all 3 shifts. Holland told Altice when he laid off the latter that Altice was a "good" hand and Holland also suggested that Altice keep in touch with him. Altice twice sought reemployment from Superintendent Murphy after his layoff to be in- formed by Murphy that work was still unavailable but that Murphy would take Altice back as soon as he had an opening. Murphy told Altice on one of these occasions that "if they [the Union people] picked the trash out of their own back yard they wouldn't have anything to worry about." Holland testified that he hired a new employee in Altice's job classification shortly before Christmas that year, but that he did not know at the time that Altice, meanwhile, had attempted to obtain a job from Murphy. Although the General Counsel attempted to show that a seniority practice was not in effect, I do not believe that he successfully refuted the Respondent's proof in this connection. I am also not satisfied that a job was open at the time Altice applied for reemployment to Murphy. The record shows, however, that beginning the first week of October 1951 and through the end of the year, the Respondent rehired 15 employees and hired approximately 80 new employees in various job classifications. General Overseer Hucks testified, at first, that he had known during this hiring period that Altice had applied for reemployment to Murphy. And when Hucks then was asked why he did not recall Altice, since he had known of Altice's applications to Murphy and since he also had Altice's address, Hucks replied merely that "we" understood that Altice was working elsewhere at a higher wage rate than the Respondent would pay. But when Hucks was further asked whether the application to Murphy did not indicate Altice's Interest In returning to the Respondent's employ, Hucks then changed his testimony and stated that he had not known that Altice had sought reemployment from Murphy. I have no doubt that Hucks knew that Altice was seeking reemployment and I also have no doubt and I find that the Respondent would have recalled Altice, at least by October 31, 1951, were It not for the Respondent's hostility toward the Union. I conclude, therefore, that the Respondent has discriminatorily denied employment to Altice since October 31, 1951. 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Summary I find that the Respondent violated Section 8 (a) (1) of the Act by soliciting, inducing , and assisting employees to withdraw their union cards ; threatening employees with loss of employment through discharge or plant shutdown and holding out job advantages, all for the purpose of causing its employees to refrain from union membership and activities ; and by interrogating employees concerning their union membership and activities . N. L. R. B. v. Williams, et al., 195 F. 2d 669, 672 (C. A. 4) ; N. L. R. B. v. Premier Worsted Mills , 183 F. 2d 256 (C. A. 4) ; N. L. R. B. v. Dixie Shirt Co., 176 F. 2d 969, 971-973 (C. A. 4) ; American Bottling Company , 99 NLRB 345. I find that the Respondent also violated Section 8 (a) (1) and (3) by discriminating against Ashwell, Hammond, and Altice. 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 the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action in effectuation of the policies of the Act. I shall recommend that the Respondent offer immediate and full reinstatement to Ashwell, Hammond, and Altice to their former or substantially equivalent positions 10 without prejudice to their seniority or other rights and privileges and make them whole for any loss of pay resulting from the discrimination against them, by paying them a sum of money equal to the amount they would have earned from the dates of their respective discrimination to the date of offer of reinstatement less their net earnings" to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294 Earnings in one quarter shall have no effect upon the back-pay liability for any other such period. It will also be recommended that the Respondent make available to the Board, upon request, payroll and other records to facilitate checking the back pay due. F. W. Woolworth Company, supra. In view of the nature of the unfair labor practices committed, I shall also recommend that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following : CONCLUSIONS OF LAW 1. The Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] no The Chase National Bank of the City of New York, 65 NLRB 827. n Crossett Lumber Company, 8 NLRB 444, 497-498. BURLINGTON MILLS CORPORATION 269 Appendix NOTICE To ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT discourage membership in, or activities on behalf of, TEXTILE WORKERS UNION OF AMERICA , 010, or in any other labor organization, by discriminating in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT interrogate employees concerning their union membership and activities. WE WILL NOT solicit or assist employees to withdraw from the above-named labor organization. WE WILL NOT threaten to discharge or lay off employees or to shut down our plant because of their union membership and activities or hold out job advantages should they refrain from such membership and activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations , to join or assist TEXTILE WORKERS UNION OF AMERICA, CIO, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, 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 organiza- tion as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL offer to the following-named employees immediate and full rein- statement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges enjoyed and make them whole for any loss of pay suffered as a result of the discrimination against them : J. O. G. Ashwell Pearl Hammond William Altice BURLINGTON MILLS CORPORATION, (ROANOKE WEAVING PLANT), Employer. Dated ------------------- By ------------------------------------- (Representative ), (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.