Clearwater Finishing Co.

268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of pay he may have suffered from August 22, 1952, to a time 3 weeks after the strike ended when the Respondent offered him reinstatement and he rejected the offer. Having found that the Respondent did not discriminate with regard to the hire and tenure of employment of Armand Caron, Anthony Del Monico, Joseph E. Walsh, and Donald Fulford, I shall recommend that the complaint with respect to them be dismissed It is apparent from the entire record that there is danger of the commission in the future by the Respondent of other unfair labor practices proscribed by the Act. In order to make effec- tive the interdependent guarantees of Section 7 of the Act and to effectuate the policies of the Act, I shall recommend that the Respondent cease and desist from infringing in any manner upon the right of employees guaranteed in Section 7 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. United Steelworkers of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All production and maintenance employees of Respondent, including the shipping clerk, employed at its East Greenwich plant, exclusive of the assistant to the superintendent, the leadmen, office clerical employees, professional employees, guards, and all supervisors as defined in Section 2 (11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. At all times since January 5, 1952, the Union has been and now is the exclusive repre- sentative of all the employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By failing and refusing at all times since February 28, 1952, to bargain collectively with United Steelworkers of America, CIO, as the exclusive representative of the employees in the aforesaid unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act. 5 By discriminating in regard to the hire and tenure of employment of Charles Arnold, Paul Aslin (Ellin), John Clancy, James Cummisky, Peter Dubuque, Joseph Molis, Raymond P. Reed, John W. Bunnell, Patrick Fogarty, Sidney Ivens, Albert Leduc, John A. McKenna, Francis Earl Northrup, Ernest Provencher, Joseph A. Trudell, Philip Wilcox, and Eugene Jacques. thereby discouraging membership in United Steelworkers of America, CIO, the Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act 8 The Respondent has not violated Section 8 (a) (3) and (1) of the Act as alleged in the com- plaint with respect to Armand Caron, Anthony Del Monico, Joseph E. Walsh, and Donald Fulford. [Recommendations omitted from publication.] CLEARWATER FINISHING COMPANY and UNITED TEXTILE WORKERS OF AMERICA, AFL. Case No. 11-CA-572 (For- merly 10-CA-1532). April 15, 1954 DECISION AND ORDER On October 27, 1953, Trial Examiner David London issued his Intermediate Report in the above-entitled proceeding, 108 NLRB No. 55. CLEARWATER FINISHING COMPANY 269 finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter , the Respondent and the United Textile Workers of America, AFL, filed exceptions and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds no prejudicial error was com- mitted. The rulings are hereby affirmed . The Board has con- sidered the Intermediate Report , the exceptions and briefs, and the entire record in the case , and hereby adopts the find- ings , conclusions , and recommendations of the Trial Examiner, except as modified below. We agree with the Trial Examiner's finding that the Respond- ent violated Section 8 (a) (1). However , we do not rely upon all of the conduct set forth by him to support that finding. The Trial Examiner found that "Foreman" Durden told employee Blackmon that the mill would shut doun if the Union came in. The Respondent excepts on the ground that there was no proof of Durden' s supervisory status. We find merit in this exception . Durden's duties were those of ticket writer and shader. His task consisted mainly of checking the correctness of the shade of color run upon some of the Respondent ' s textile- printing machines , and making assignments of the machines. On this record we do not find that Durden was a supervisor, and therefore we will disregard his remark to Blackmon. The Trial Examiner also credits the testimony of employee Gregory as to statements allegedly made by Supervisors Frost , Robinson , and Hendrix. The latter all denied making such statements . Although Gregory was credited in this instance over the denials of the 3 supervisors , he was not credited elsewhere with regard to his version of his own discharge. Instead, the Trial Examiner credited the testimony of Super- visor Hendrix over that df Gregory as to the latter's discharge. In view of the foregoing , we do not accept Gregor ' s testimony that the 3 supervisors , who are not otherwise discredited in the Intermediate Report , made the alleged coercive statements in violation of Section 8 (a) (1). 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 Clearwater Finishing Company , its agents , successors, and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in United Textile Workers of America, AFL , or in any other labor organization of its em- ployees , by discharging employees or discriminating in any manner with respect to hire , tenure , or any term or condition 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of employment , except to the extent permitted by Section 8 (a) (3) of the Act. (b) Interrogating its employees as to their union activities and/or threatening them with reprisals if they continued such activities. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-or- ganization , to form labor organizations , to join or assist the above-named or any other labor organization , to bargain col- lectively, through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all of such activities , except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization , 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 Byron Colley , Lonnie Lott , and David Timmerman immediate and full reinstatement to their former or substan- tially equivalent positions without prejudice to their seniority and other rights and privileges and make each of them whole for any loss of pay each may have suffered by reason of the discrimination against them by payment to each of them of a sum of money equal to the amount determined in the manner set forth in the section of the Intermediate Report , attached hereto, entitled "The Remedy." (b) Upon request , make available to the Board or its agents, for examination and copying, all payroll records, social-secu- rity payment records, timecards , personnel records and re- ports , and all other records necessary to analyze the amounts due under the terms of this Order. (c) Post at its plant in Clearwater , South Carolina , copies of the notice attached to the Intermediate Report and marked "Appendix A."1 Copies of said notice , to be furnished by the Regional Director for the Eleventh Region, shall , after being signed by Respondent's representative , be postedby Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered , defaced, or covered by any other material. (d) Notify the Regional Director for the Eleventh Region, in 'This notice, however , shall be, and it hereby is, amended by striking therefrom the words The Recommendations of a Trial Examiner " and substituting in lieu thereof the words "A Decision and Order." 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." CLEARWATER FINISHING COMPANY 271 writing, within ten (10 ) days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the allegations of the com- plaint charging that Respondent unlawfully discharged Ruby L. Ripley, Joe Wood , Edward L. Gregory , and James D. Blaxton be dismissed. Intermediate Report STATEMENT OF THE CASE Upon charges duly filed by United Textile Workers of America, A.F.L., herein called the Union, the General Counsel of the National Labor Relations Board, on May`8, 1953, issued a complaint against Clearwater Finishing Company, hereinafter called Respondent or the Company, alleging that Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of the charge, complaint, and notice of hearing were duly served on the appropriate parties. With respect to the unfair labor practices , the complaint as amended at the hearing alleged, in substance, that since on or about January 15, 1952, and continuously thereafter, Respondent, by specified acts, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act. The complaint further alleged that Respondent, on designated dates , discharged or laid off the employees named in the margin i and has at all times after the respective terminations failed and refused to reinstate them because they joined or assisted the Union, or engaged in concerted activities with other employees for the purpose of collective bargaining or other mutual aid or protection By its answer, Respondent admitted that it had discharged the employees named in footnote 1, supra but denied that it was guilty of any unfair labor practice. Pursuant to notice, a hearing was held August 19- 20, 1953 , at Augusta , Georgia, before the undersigned Trial Examiner . All parties appeared and were represented by counsel or other representative, were afforded full opportunity to be heard , to examine and cross - examine witnesses, to argue orally at the conclusion of the evidence, and to file briefs. Oral argument was waived by all parties. Since the close of the hearing a brief has been received from Re- spondent which has been duly considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a corporation duly organized under and existing by virtue of the laws of the State of South Carolina, having its principal office and place of business in Clearwater, South Carolina, where it is engaged in bleaching , dyeing, and printing cotton cloth. In the course and conduct of its business operation at its Clearwater plant , Respondent causes and has con- tinuously caused a substantial amount of raw materials , equipment, and supplies used by it in the bleaching, dyeing, and printing of cotton cloth to be purchased, transported, and delivered in interstate commerce from and through the United States of America , other than the State of South Carolina, to its Clearwater plant. The Company also causes , and has continuously caused, a substantial amount of its finished products of a value of more than $ 100,000 annually to be sold, transported , and delivered in interstate commerce to and through the States of the United States, other than the State of South Carolina, from its Clear- water plant. Respondent is, and has been at all tunes material herein, engaged in commerce within the meaning of the Act. 'Ruby L Ripley, Joseph W Wood, Jr., Byron Colley, Lonnie W Lott, Edward L. Gregory, David A. Timmerman, and James D. Blaxton. 2 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IL THE LABOR ORGANIZATION INVOLVED United Te..tile Workers of America , A. F. L , herein called the Union, is a labor organiza- tion within the meaning of Section 2(5) of the Act III. THE UNFAIR LABOR PRACTICES 2 A. Background The Union's organizational campaign began on or about December 14, 1951, at a barbecue meeting attended by 78 employees. On March 21, 1952, it filed its petition to be certified as bargaining representative for Respondent's production and maintenance employees. On March 26, 1952, the Company and the Union entered into a "Stipulation for Certification upon Con- sent Election" pursuant to which an election was conducted on April 10, 1952, among the employees aforementioned to determine whether or not they desired to be represented by the Union for the purposes of collective bargaining. At that election, 296 votes were cast for the Union, 307 votes against the Union, and additional ballots, sufficient in number to be determinative of the results of the election, were challenged On April 16, 1952, the Union filed its "Objections to Conduct Affecting Results of the Election " Thereafter, the Board's Regional Director conducted an investigation into the issued raised by the challenged ballots and by the said objections On March 6, 1953, the Regional Director filed his report on the objections and the challenged ballots Respondent and the Union having both filed exceptions to the report, the Board, on March 31, 1953, ordered that a hearing be held on the issues raised by the bojections and challenges. There- after, the Union requested permission to withdraw its petition for certification On July 15, 1953, the Board granted that request, revoked its order 9f March 31, 1953, directing that a hearing be held, and ordered the representation case closed 3 In the summer of 1952 management was concerned with a depreciation in the quality of work produced and a drop in production In early August of that year, Raymond Warner, the plant manager, discussed the matter with top supervisors and on August 4 addressed a notice to all foremen instructing them to "take the necessary steps to correct the situation brought about by employees leaving their work without permission. "On October 2, 1952, Warner sent another directive to all foremen and instructed them "to discharge any employee found away from his work station without permission." Respondent's records show that the number of discharges increased materially and that from August 1, 1952, to December 31, 1952, 58 employees were discharged for "disciplinary or other involuntary reasons." B. Interference, restraint, and coercion By the following conduct Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act '2nd in violation of Section 8 (a) (1) thereof- I During the week of January 21, 1952, Foreman Hankinson said to employee Finley: "If I hear you talking about the Union again I am going to have to fire you." 2. In February 1952 Foreman Durden told employee Blackmon that thcmill would shut down if the Union came in. 3. About 4 weeks before the election in April 1952, Foreman Brockman told employee Atkinson that "if the damn Union comes in, either lie [Brockman] or [Blaxton, the Union's 2 The testimony concerning most of the incidents involved in this proceeding is conflicting and contradictory and the findings of fact made herein result from my attempt to reconcile the evidence and determine what occurred. The findings of fact are based upon my consideration of the entire record and my observation of witnesses. All evidence on disputed points is not described so as not to burden unnecessarily this Report. However, all has been considered and, where required, resolved. In determining credibility I have considered, inter alia the demeanor and conduct of witnesses; their candor or lack thereof; their apparent fairness, bias, or prejudice; their interest or lack thereof; their ability to know, comprehend, and understand matters about which they have testified; whether they have been contradicted or otherwise impeached; and consistency and inherent probability of the testimony. 3 The facts pertaining to the representation proceeding have been officially noted from the Board's file in Case No 11-RC-510, formerly Case No. 10-RC-1846. CLEARWATER FINISHING COMPANY 273 committeeman for that department] would have to leave and he had a damn good right to think it would be[Blaxtonl" 4. On April 8, 1952, Foreman Brierly asked employee Palmer what he thought about the Union and told him that if the Union "went in at Clearwater they were going to sell the Company houses." 5. On or about October 13, 1952, Foreman Brierly, in discussing with employee Palmer the termination of employee Colley hereafter found to have been discriminatorily discharged, said to Palmer that there were more employees "that are going to'get the same thing [Colley] got because the Company does not want no damn Union in Clearwater." 6. Two or three days before the election, Foreman Hankinson told employee Binnicker that the men were making a mistake in trying to bring the Union in, that he didn't want him "to get messed up in the Union . . . [and] he thought the Company might discharge some [Union members]." 7. The interrogation by Supervisors Frost and Hendrix of employee Gregory 4 to 5 weeks before the election as to how many employees had attended a Union meeting and how he felt about the Union. 8. Foreman Ribinson's rhetorical question to Gregory during the week of the election whether Jack Jacobs (southern director of the Union) was "going to feed you all after they fire you.., C. The alleged discriminatory discharges 1. Ruby L. Ripley Mrs. Ripley was employed by Respondent on July 3, 1940, and discharged on January 17, 1952, on which latter date she was employed in the sewing department. She joined the Union the first week in January 1952, was elected to an organizing committee and at the January 12 meeting spoke in its behalf. However, she distributed no union membership application blanks until after she was discharged. A day or two before she was discharged, Mrs. Ripley, who was addicted to the free use of profane language, on two different occasions, in the presence of Mrs. Adams, another employee, referred to certain other fellow employees as "these sons-of-bitches that ain't on the band wagon." Mrs. Adams complained to Finley, her supervisor, about Mrs. Ripley's excessive profanity and he told her that he would look into it. Finley conferred with his superior, Foreman Hankinson, and the latter instructed Finley to go back into the plant and reprimand Mrs. Ripley. Finley went to her and told her that it had been reported that she was using profane language, shouting, and causing disturbance and asked her to abstain there- from so that the staff "could all work together better." Mrs. Ripley just laughed at the reprimand but said nothing. On the morning of January 17, 1952, after hearing another profane outburst by Mrs. Ripley, Mrs. Adams went to Hankinson and complained that she didn't "like to work in a department where [she] heard things like that going on." Hankinson informed her that he would try to give her work at a different location. He went to Mrs. Ripley and told her that it had been re- ported to him that she was creating a disturbance and that such conduct would have to be stopped. Giving emphasis to her answer by the use of the scatological expression, Mrs. Ripley informed Hankinson that she did not have to take his criticism or anybody else's. Hankinson then told her that if that was her attitude, her services were no longer required. Mrs. Ripley took her production card, tore it up, and threw the pieces in Hankinson's face. I find that Mrs. Ripley was discharged because of the insubordination and insolence she dis- played when Hankinson informed her that her conduct was causing a disturbance in the plant and that she would have to mend her ways. I am convinced that when Hankinson approached her on the day in question he had no intention of discharging her 4 In view of that, the further fact that others in the plant also used profane language, but were not discharged, loses significance in attempting to establish discrimination against Mrs. Ripley. Though her profanity was the incident that brought about her rebukes, it was her insubordination and insolence that caused her discharge Union membership or activity does not immunize against plant discipline for insubordination or other misconduct. Accordingly it will be recommended that the allegations of the complaint pertaining to her discriminatory discharge be dismissed. 4 Witness his statement to Mrs. Adams a few minutes earlier that he would transfer her to another department so that she would no longer be annoyed by Mrs. Ripley. 339676 0 - 55 - 19 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Joseph W Wood, Jr. Wood, employed by Respondent from 1948 to October 6, 1952, joined the Union December 29, 1951, and was elected as a committeeman for his department. He distributed 35 to 40 union application blanks and secured the signatures of 4 or 5 employees to such applications From February 1952 Wood, as did more than 200 other employees, wore and displayed a union button In the bleach-house department, where Wood was employed, it had been the established practice to do the necessary cleaning of machinery and equipment on Friday of each week. Because of the accumulation of lint and dust arising from the operation of the machines and equipment, this cleanup work was essential to the successful and safe operation of the depart- ment during the following week. To do this cleanup , it had always been the practice to assign thereto employees in the department who had not yet completed 40 hours of work during the earlier portions of the same week. On the Thursday before he was discharged, Wood, who had not yet worked 40 hours during that week, was told by Supervisors Ennis and Lowe to report for cleanup on the following day Though Wood replied "OK" he did not come to work on Friday nor did he advise anyone that he would not report on that day, though he was aware of the practice and the Company rule requiring that it be notified when employees are unable to report for work. When Wood returned to work on the following Monday, Hankinson, his foreman, informed him that he was discharged because of his unexcused absence on the previous Friday Wood admitted that none of his foremen or supervisors ever said anything to him about the Union. On earlier occasions when he failed to report for work, he had "always called in or sent work by one of the employees in[his] department" as required by company rules. The record further establishes that others had been discharged for unexcused or unreported absences On the entire record I am convinced and find that Wood was discharged because of his failure to report for work on the Friday in question and not for the reasons alleged in the complaint. 3 Byron Colley Colley was first employed by Respondent in 1940 as an extra at about $ 13 a week and was thereafter transferred to several other jobs until at the time of his discharge on October 10, 1952, he was engaged as a backtender on a print machine at $1 45 an hour He joined the Union at its first meeting, was later elected chairman of its organizing committee and con- tinued in that capacity until he was discharged from Respondent's employment. He distributed all the union membership cards that were ever circulated among Respondent's employees and "handled" all cards that were signed up by others on the committee. Individually he "signed up" at least 50 employees before the election and more than that number thereafter. He dis- tributed handbills on every occasion when handbills were circulated and was stationed for this task in front of the gate at the personnel office. At the election, he acted as "an officer for the Union." Before the election, apparently in behalf of grieving employees, Colley talked to Mr. Warner, the plant manager, and told him "the boys" were complaining "about the boss printer ... mistreating the help." At Colley's request, Warner called a meeting of the men engaged in the printing department Warner there assured the men that management would insist upon fair treatment for them and "that if any other trouble came up . . [they were] to let Mr Colley knpw" and the latter would report the matter to Warner On several other occasions Colley complained to Dunham, Warner's administrative assistant, that the boys "did not feel they were getting their money's worth" in the Company's cafeteria. Right after Wood was fired on October 6, Colley complained to Dunham about that discharge At about the same time Lewis, Colley's foreman and with whom Colley had previously discussed the Wood discharge, instructed him "to stay out of the office and [not to] go over there and talk to Mr. Dunham or Mr . Warner or any person pertaining to the management about anything." On October 10, 1952, Colley was engaged as a backtender on print machine No. 12, a large machine which prints the design on the fabric as it goes through the machine. The entire machine is approximately 40 feet long and has a number of rollers around which the fabric rotates. The printer is stationed at the front of the machine while the backtender stands at the rear thereof. There it was Colley's job to watch the back of the machine and, among other duties, to see that the rollers have the proper color, the brushes and rollers are turning properly, and the cloth coming through in order. CLEARWATER FINISHING COMPANY 275 At about 10 a m. of October 10 Robert Lewis, foreman of the print shop, was advised by his assistant that an ice cream stick, approximately 4 inches long and about a sixteenth of an inch thick, had gone through the rollers of the No. 12 print machine and had been found by Toole, the printer. The machine was stopped immediately and only about 221 yards of the cloth was spoiled. Toole asked Colley whether he knew where the stick came from. The latter replied that he hadn't seen it before and didn't know how it got there Toole said he didn't know how it got their either. Lewis was called, took the piece of cloth and stick to the supervisor of the bleach house, and discussed the possibility of the stick being in the roll of cloth before it came to the print machine and both decided that it could not. Lewis and the printer examined the parts of the equipment affected and found nothing that would substantially interfere with the operation then in progress . The presses resumed operations and the pattern then being printed was completed. The next few jobs were checked and were found not to have been affected by the mishap.5 At 3 p. m., the close of the shift, Colley was told to report to the office where the personnel manager told him thathewas being discharged because of "a stick going through his machine." On the following Monday, October 13, Foreman Brierly asked employee Palmer whether he wanted to take Colley's place. In the course of the conversation, Brierly told him that Colley had "been playing fiddle around here a long time and the damn rascal can dance now... . There is (sic) some more that are goind to get the same thing he got because the Company does not want any damn union in Clearwater." When the General Counsel rested his case-in-chief, the state of the record was such that it was incumbent on Respondent to go forward with the evidence to show why it discharged Colley. In its brief, Respondent summarizes its reasons for the termination as follows: "There was ... every reason to believe that Colley had deliberately placed the stick in the machine, even without an eye witness to his having done so. Whether he had placed it there or not, he was guilty , at the least , of serious carelessness and inattention to duty, and this following a reprimand 2 days before for absence from his machine, while it was in operation, without permission." With respect to the first contention, I am mindful that it would be a sufficient defense if Respondent honestly believed that Colley had thrown the stick in the machine and discharged him for that reason. In other words, the issue is not whether in fact Colley was actually guilty of the misconduct, but whether Respondent honestly believed that he was, and discharged him for that reason. Atlanta Broadcasting Company, 79 NLRB 626. However, contrary to Respondent's contention that it had "every reason to believe that Colley had deliberately placed the stick in the machine," I am convinced and find that it had no reason to so believe The record is utterly devoid of any suggestion as to why Colley, with a record of 12 years' faithful service behind him, should commit an act of sabotage. The failure of either the General Counsel or Respondent to otherwise explain its presence cannot be used to impute to Respondent a reasonable belief that Colley had deliberately thrown the stick into the machine Nor is there any evidence to sustain Respondent's alternative contention that Colley was "guilty, at the least, of serious carelessness and inattention to duty" in connection with this incident and that he was discharged for that reason Indeed, Lewis testified that "the only possible way [the stick] could have got in No. 12 machine was to throw it in" and that was why he "decided to discharge him " It is thus apparent that the charge of "serious carelessness and inattention to duty" was an afterthought. In any event, there is no credible evidence in support of Respondent's alternative contention. Although it was one of Colley's duties to watch the cloth as it went over the rollers at the end of the machine, he had other duties to perform which occasionally, and for brief intervals, required him to change his position from directly behind the rollers. At the time of the mishap in question, he was "throwing a grey roll back in the winder," a taskapparently assigned to him Under such circumstances, I can- not attribute carelessness or negligence to Colley in failing to discover the stick before it went through the roller at his end of the machine. As previously noted, only about 22 yards of material were spoiled and Respondent suffered no other substantial damage as a result of the mishap. Other mishaps resulting in the spoilation of cloth occur every day, in some instances involving more than a 1,000 yards of cloth, and for which no employees were discharged. Lewis testified that "we have blankets [costing 5 While there was considerable testimony as to substantial damage that might have resulted if a foreign object were to run further through the presses, or was of a material or substance that would damage or cut the lapping or rubberized blanket on the machine, admittedly there was no such damage caused by the incident under consideration. 27 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD $1,560] tear up on occasions ... due to [ loose] machine rollers ," or a bearing giving way and, because such incidents were deemed unavoidable, no one was discharged therefor. Foreman Rouse testified for Respondent that on October 21, 1952, he found employee Gregory, admittedly without proper cause, and in violation of Company rules, "roaming all over the place" several hundred feet from his post and resulting in a spoilage of approximately 300 yards of cloth. Gregory, however, was only given a warning notice on that occasion. Colley had been employed by Respondent since 1940. His services during that period must be deemed to have been most satisfactory because he was advanced from $13 a week to $1.45 an hour. Except for the evidence summarized in the margin, 6 there was no credible testimony that Colley had ever been guilty of, or had been warned for, any infraction of the Company's rules or any shortcoming in his work. On the entire record I am convinced and find that Colley was discharged for his union activities (characterized by Brierly as "playing fiddle"), and that the reasons assigned by Respondent were mere pretexts to rid itself of his influence as an active union protago- nist among the remainder of its employees . The recital of his activities establishes not only that Colley was extremely active in carrying on all types of union activities, but that Respondent had knowledge thereof. Indeed, Warner recognized that leadership when he in- structed the employees to report their grievances to Colley who in turn would take the matter up with Warner. It was in compliance with this instruction that Colley talked to Dunham, Warner's administrative assistant, shortly after Wood's discharge on October 6 and for which intervention Colley was reprimanded by Lewis. On the entire record I find that Colley's discharge several days later was in violation of Section 8 (a) (3) and 8 (a) (1) of the Act. 4. Lonnie Lott Lott was hired by Respondent in April 1943 as millwright helper at 85 cents an hour and continued his employment until October 20, 1952, when he was discharged. At that time he was classified as a millwright, first class, and receiving $1.72 an hour, plus a bonus, the second highest-paid job in the department. Ross Laws, Respondent's master mechanic and in charge of the department in whichLottwas employed during the entire period of his employ- ment, considered him "a very satisfactory employee [who] ran the job very well." Lott joined the Union in January 1952, wore its button, distributed membership cards both before and after the election in April 1952, had charge of the organization of the machine shop, and secured the signatures of 13 to 15 employees to such cards. At the hearing, when Lott was asked whether any of his foremen or supervisors ever spoke to him about the Union, he testified as follows: "Never directly about the Union. I was called in there in a group a couple of times and was warned [ by Sanders , assistant foreman and Lott's immediate supervisor] about talking to people in the plant." This occurred once prior to the election and 2 or 3 times thereafter. Shortly before he was fired, Sanders called him to his office and said: "I don't want you to talk to nobody in this shop" and that he didn't want him "to go in the rest room or be smoking in there." No evidence was offered, how- ever, that there was a rule against talking in the plant, or against smoking in the restroom. About a month before he was discharged, Lott, with Nathan Smith and Sid McGee, two other employees, was seated at a cafeteria table when Dunham, administrative assistant to the plant manager , joined them at the same table. Colley entered the cafeteria at about the same time and Dunham, referring to Colley, said to Smith: "There goes your boss." Smith remonstrated that Colley was Lott's "boss" and Dunham agreed stating that he, too, under- stood that Colley was Lott's "boss." Colley had no supervisory status in behalf of Respondent and I construe the characterization of Colley as a boss to have reference to him as boss of Lott's union activities. During the same conversation McGee said to Lott: "You signed a card for him" and Lott admitted that he had. 6Lewis testified that approximately a week before Colley was discharged on October 10, it "had been reported" to him, by an undisclosed person, that Colley was leaving his machine and "running off smoking." Lewis further testified that he made out a reprimand slip, pur- porting to show the violation as having occurred on October 8, only 2 days before the discharge, gave it to Beard, Colley's supervisor, and told him to show it to Colley and to reprimand him for it. Colley denied he left his machine on October 8, or at any other time, in violation of Company rules and that he had ever been warned for such an offense. Beard was not called as a witness. On the entire record, I credit Colley's denial of the alleged incident. CLEARWATER FINISHING COMPANY 277 On Thursday, October 16, 1952, a serious mishap occurred to the No. 3 printing machine. Lott immediately began making the necessary repairs and continued in that task through the following Saturday morning at which time he completed the job. When Lott reported for work at 7 a. m. on the following Monday morning, the printer asked him whether he had completed the repairs. Lott replied that he had "put in new pipes and that the blanket is in" but that he didn't know whether they were adjusted right or not. It had been the established practice in the shop, after mechanical repairs of the type made by Lott were completed and before the machine was put into operation, to have it thoroughly inspected by the printer, the backtender, and the gray tender, to see that "the air pipes are set at a proper angle" and that the machine is otherwise ready for operation. Neither the printer, the backtender, nor the gray tender was called to testify whether they made such an inspection after Lott completed the repairs. However, Lewis, the press fore- man, testified that "there could have been a failure to inspect," and Laws, the master mechanic, testified that the machine "had not been checked." Later that same morning, after the machine had been running slowly for 2 to 3 minutes, Sanders reported to Laws that an alemite fitting approximately 11 inches long had been found behind the rubberized blanket on the machine that Lott had repaired. The fitting had been observed by another employee who stopped the machine immediately with the result that no damage resulted. Laws inquired of Sanders as to who had made the repairs and when the latter stated that he was not sure, Laws instructed him to find out. When Sanders reported that it was Lott, Laws instructed him to see Lott and if the latter admitted that he had worked on the machine the previous Saturday, Sanders was directed to discharge him. Sanders called Lott to his office where the latter admitted he had worked on the machine on the day in question. Sanders showed him the alemite fitting and asked how he happened to leave it in the blanket. Lott denied leaving it there, stating instead that he remembered definitely removing it from the machine and throwing it "down on the floor."7 Sanders discharged him immediately thereafter. On the entire record I am convinced and find that Lott was not discharged for the reasons assigned by Respondent and that the incident was a pretext seized upon by Respondent to rid itself of an active Union adherent, I am unable to believe that an employee who had rendered almost 10 years of faithful service during which his wages were more than doubled, who had "never been warned about carelessness" and who was considered by his superiors to be a "very satisfactory employee who ran the job very well," would be dismissed, without warning, for an act of negligence which resulted in no damage to equipment and no substantial loss to the Company. There are other factors present which cast doubt on Respondent's plea that Lott was discharged because of the incident heretofore discussed. It was the duty of three other employees to inspect the machine before it was put into operation, especially by the printer after he was informed by Lott that the latter had put in new pipes. The required inspection by the printer to determine whether the pipes were "set at a proper angle" would have dis- closed the fitting. However, though Respondent's own testimony established that there had been no inspection or checking of the machine after the repairs were completed, no evidence was offered that these other employees were disciplined because of the negligent manner in which they performed their duties, and they presumably continued in their employment. The record also establishes that other employees were warned for infraction of Company rules or misconduct by means of written warning notices supplied by management, but no evidence was offered that Lott had ever been so warned. On the entire record I find that Lott was discharged on October 20 because of his Union activities and in fulfillment of Foreman Brierley's threat of a week before, that, just as Colley had been fired for his Union activities, "more ... are going to get the same thing because the Company does not want any damn union in Clearwater." By that discharge Respondent violated Section 8 (a) (1) and (3) of the Act. T While Lott knew that there was a long-established rule which required all mechanics to take any parts removed from the machine to the machine shop, he testified that the rule applied only to parts "that somebody will stumble over, or a bearing, or a gear or something of that nature, , . , but, with a little piece like [the fitting in question, he] did what every body has done, [he] threw it on the floor." In view of the ultimate finding that follows with regard to his discharge, I find it unnecessary to decide whether Lott allowed the fitting to remain in the blanket or threw it on the floor. 27 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. Edward L. Gregory Gregory was employed by Respondent from August 1946 until he was discharged on October 22, 1952. He joined the Union at the barbecue gathering , attended "about every " meeting, and wore its button practically every day untilhe was discharged . He signed up approximately 40 employees for Union membership before the election and about the same number there- after . On several occasions about 4 or 5 weeks before the election , Supervisors Frost and Hendrix asked him how many employees had attended a Union meeting and how he felt about the Union. Gregory replied that they knew how he felt on the subject and that they were wasting their time trying to talk him out of it . During the week of the election , Foreman Robinson met Gregory in the waterhouse and said to him: "Is Jack Jacobs (southern director of the Union) going to feed you all after they fire you? " A day or two before Gregory was fired Frost approached him and, while holding a medium-sized ball bearing in his hand, told him that he could tell him "the past and future ; [that] ... the past looked pretty good until 6 or 7 or 8 months ago , [ but that the] future ... is black." During , the period prior to Gregory 's discharge he was engaged as an inspector to watch the cloth as it came through the print machine to see that it was running right . If he found anything wrong with the cloth , it was his duty to either stop the machine or signal the printer to stop it. As an inspector , it was his duty not to leave his post unless properly relieved. At about 4 p. m. on October 21, Gregory had 300 yards of "misclean ," a run of bad cloth. Foreman Rouse found him "roaming all over the place " and asked him where he had been. Gregory made no reply , following which Rouse prepared and handed him a warning slip stating that he was being reprimanded for being careless and permitting too much bad work to go through the machine. At the same time Rouse told him that if it happened again he would have to let him go . On the next day, another misclean of approximately 750 yards was discovered on Gregory 's machine while no one was in attendance at his post. Rouse went in search of Gregory and met him coming out of the waterhouse where the latter had been smoking for approximately 10 minutes . Rouse told him "that he had quite a mess." Gregory made no reply, "just acted a little silly and walked on ." It was then that Rouse decided to discharge him, though he was permitted to finish that day's shift. Gregory testified that before he left his machine on the occasion in question he got the floorman, James Scott , to watch his machine. However, Hendrix testified that immediately after the spoiled cloth was discovered when he asked Scott , whose post was nearby , whether he knew where Gregory was and whether Gregory had asked him to act as his relief, Scott replied in the negative to both queries. Though the timing of the discharge , following so closely upon Frost's prediction that Gregory's future "looked black ," makes that termination suspect, on the entire record I find that Gregory left his machine in violation of Respondent's rules and without arranging for a proper replacement. Having been warned theprevious day for a similar infraction , Respondent discharged him for a repeated violation of its rules and not for the reasons alleged in the complaint. 6. David Timmerman Timmerman went to work for Respondent in 1943 as a "color boy" and worked steadily thereafter until January 28, 1953, when he was discharged at which time his job was that of a backtender. Though his beginning wage was only $ 9.30 a week, his hourly rate at the time of discharge was $1.47 an hour. Timmerman and another employee were the first employees to get in touch with the Union organizers . It was Timmerman who arranged for the barbecue of December 14, 1951, and "cooked everything for the boys ." He wore a Union button from that time until he was dis- charged and attended every Union meeting. He signed up about 90 employees of which 60 to 65 were signed up after the election. Of this total of 90 employees, only 25 to 30 were in his own department. On Tuesday, January 27, 1953, Timmerman asked employee Ray Jones, who was employed at the same machine, whether he had ever "signed his brother up." Jones answered that he had not but that he would see what he could do about it. Timmerman then observed Jones talking to Foreman Rouse following which the latter approached Timmerman and said to him: "Me and you have been friends a long time and we are today , and I want you to quit standing CLEARWATER FINISHING COMPANY 279 around talking the union in this plant."8 About 30 minutes later Rouse returned to him and said: "This gets back there in the office . .. I don't want you to do that because they come back here and eat me out ... Now damn it, quit talking the union in the plant." On the following day, Wednesday , January 28, Timmerman , in the presence of Jones, remarked to several other employees in the locker room that Jones must have reported to Rouse that Timmerman had "tried to sign him up." Jones replied: "If you tell that to the rest of these employees you ain't going to punch in but a very few more tunes . Pull off your glasses ." Timmerman took off his glasses and laid them in his locker. Jones caught hold of Timmerman's arms and forced him back against the locker . Several employees intervened, no blows were struck, and both men returned to their work . At the close of the shift Rouse called Timmerman to his office and said to him: "I told you yesterday to quit talking union in this plant, and today you liked to had a fight and I got to pay you off and here it is." Rouse and Jones both testified in behalf of Respondent . Rouse testified that about 12' weeks before Timmerman was discharged , Jones came to him and told him that Timmerman "was calling him all kinds of names and calling him yellow and bothering Jones all of the time." Rouse further testified that thereafter Jones complained to him of the same conduct "two or three times " and that because of Jones' complaint Rouse went to Timmerman on Tuesday before he was discharged and said: "We have been working together a long time and this has got to stop. We don't want any trouble." However , Jones , who while working for Respondent was also an unordained "preacher in the Church of God," testified credibly that the only time he ever mentioned Timmerman to Rouse was after the locker room incident . Although Jones testified that he went to Rouse on Tuesday and merely reported to him "that there was too much talking in the print shop to the folks," he did not "tell him who was talking." In its brief Respondent states that "Timmerman was discharged on January 29, 1953, for repeatedly causing dissension and baiting another employee to the point of an open quarrel, although he had been warned to stop such conduct and had agreed to do so." If there was any "baiting to the point of an open quarrel ," it was provoked by Jones who asked Timmerman to remove his glasses and it was Jones who admittedly advanced towards Timmerman, locked the latter's arms , and forced him against the locker. In support of Respondent's contention that Timmerman had been reprimanded and warned in writing for "repeatedly causing dissension and baiting another employee " Respondent offered in evidence its Exhibit No. 7, a warning notice which Rouse testified he "showed" Timmerman , although he admitted he didn't know whether or not Timmerman could read. The reason for the reprimand noted in the exhibit is as follows : "Employee informed this date to stop interfering with Ray Jones and workers and causing confusion and disrupting harmony in the department. Also this would be the last and final warning and the next occur- rence he would be discharged." The exhibit is dated January 27, 1953, and recites that at 8 p. m. of that date "it was necessary to reprimand" Timmerman for the reasons noted above. But, as previously indicated , Jones testified that he made no mention of Timmerman to Rouse or anyone else until Wednesday after the locker room incident. Timmerman denied that he had ever been warned in writing , or otherwise, and I credit his denial. Rouse also testified that the "next day Ray Jones came to [ him] again and said they had quite an argument in the dressing room ... [he] just decided to let him go that night." Jones , however , as indicated above, testified that he never reported the altercation in the locker room to Rouse. Rouse testified further that he never asked Timmerman for his version of that incident and that the "fracas in the dressing room" was investigated for him by second hand Parkman who made a report to him. Parkman, however, was not called as a witness and Rouse did not disclose the nature of that report. On the entire record I am convinced that none of Rouse's testimony with reference to the warning notice, and his reasons for Timmerman 's discharge, are worthy of belief, and all of his testimony with reference thereto is hereby discredited . It is abundantly clear , and I find, that Rouse had notice of Timmerman's activities as late as the day before the latter's dis - charge. I further find that Rouse discharged him because of those activities and to make certain that "the office" would not "eat him out" because of his failure to put an end to those activities . By that discharge , Respondent violated Section 8 (a) (1) and (3) of the Act. 8 This was the only subject he had ever been "told to stop talking about." The same limitation was put on employee Finley by Foreman Hankinson. 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7. James D. Blaxton Blaxton was employed by Respondent in 1941 at a wage of $ 13 a week, and continued his employment, except for a brief period of 3 months, until February 6, 1953, at which time his pay had been advanced $1.30 an hour. He joined the Union on December 14, 1951, and attended all of its meetings thereafter but 1 or 2. He was a member of the organizing committee for the first shift in the jack roomwherehe was employed and signed up about 35 to 40 employees. He began wearing a Union button in February 1952, but "took it off" in the following June or July. One of the privileges which Respondent extended to its employees was to purchase cloth for their personal use from the Company's remnant cloth room . However, the time during which the purchases could be made was fixed by a bulletin issued by Respondent and posted in that room. For Blaxton, the appropriate period was on Tuesday and Thursday beyween 3 p. m. and 4 p. m. On February 5, 1953, at about 2:55 p. in., approximately 5 minutes before the close of the shift and without punching out at the time clock , Blaxton appeared in the remnant cloth room, made a purchase and then left the plant. When he reported for work the following morning, Brierly, his foreman, told him he was being discharged because he had not punched out the day before. The record establishes that Blaxton had on 8 or 10 occasions during the year preceding his discharge , and at numerous tunes before , made purchases in the cloth room a few minutes before 3 p . in. On all such occasions he never punched out but Brierly "marked [his] card with a pen and ink" on the following morning. The evidence is undisputed that Blaxton left his post of duty prior to the close of the shift and that he failed to punch out in violation of Respondent's rules. The mere fact that his discharge as a disciplinary measure for a violation that had been repeatedly condoned and for which he had never been warned may seem to be unduly harsh, is not sufficient on which to base a violation of the Act. As previously noted, the burden of proof is on the General Counsel to establish by a preponderance of the evidence that the discharge was made because of Blaxton's Union activities. One of the necessary elements to establish such discrimination is proof that Respondent had knowledge of such activities . Here, Blaxton admitted that no Company official, supervisor, or foreman ever talked to him about the Union. While the facts heretofore found establish Union activities by Blaxton, the General Counsel failed to offer any proof that Respondent had knowledge of his participation therein after March 1952, almost a year before his discharge. Indeed , while several hundred employees continued to do so, Blaxton, about 6 or 7 months before his discharge, took off and thereafter failed to wear the Union button he had previously worn. On the entire record I find that the General Counsel has not sustained the allegations of the complaint pertaining to Blaxton 's discharge by a preponderance of the evidence and will accordingly recommend that the same be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent , set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close , intimate, and sub- stantial relation to trade, traffic , and commerce among the several States, and tend to lead to labor disputes burdening and obstructuig commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices , I will recommend that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. It having been found that Respondent discriminatorilydischargedByron Colley, Lonnie Lott, and David Timmerman, it will be recommended that Respondent offer each of them immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges , and make each of them whole for any loss of pay he may have suffered by reason of Respondent's discrimination against them by the payment to each of a sum of money equal to that which he would normally have earned as wages from the date of the discrimination against him to the date of offer of reinstatement, less his net earnings during that period. All computation of back pay shall be made in accordance with the rules and methods laid down by the Board in Crossett Lumber Company, 8 NLRB 440, and F. W. Woolworth Company, 90 NLRB 289. CLEARWATER FINISHING COMPANY 281 Because of Respondent's unlawful conduct as heretofore found , and its underlying purpose, I am convinced that the unfair labor practices found are persuasively related to the other unfair labor practices proscribed by the Act and that the danger of their commission in the future is to be anticipated from thecourseof Respondent's conduct in the past . The preventive purpose of the Act will be thwarted unless the recommendations are coextensive with the threat. In order , therefore, to make effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices , and to minimize strife which burdens and obstructs commerce, and thus to effectuate the policies of the Act , it will be recommended that Respondent cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed by 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. By discharging Byron Colley, Lonnie Lott, and David Timmerman, thereby discouraging membership in the Union , Respondent violated Section 8 (a) (3) of the Act. 2. By said discharges , by interrogating its employees as to their Union activities, and by threatening them with reprisals if they continued such activities , Respondent interfered with, restrained , and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and thereby violated Section 8 (a) (1) thereof. 3. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. 4. Respondent has not violated the Act by discharging Ruby L. Ripley , Joe Wood , Edward L. Gregory , and James D. Blaxton. (Recommendations omitted from publication.] 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 United Textile Workers of America, AFL, or in any labor organization of our employees , by discharging any of our employees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of their employment. WE WILL NOT interrogate our employees concerning their union activities , threaten them with reprisals to discourage union affiliation and activities , or in any other manner interfere with, restrain , or coerce our employees in the exercise of their right to self- organization , to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , 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 labor organizations as a condition of employment, as authorized by Section 8 (a) (3 of the Act. WE WILL make whole the following named individuals for any loss of pay they may have suffered as a result of the discrimination against them and offer them immediate and full reinstatement to their former or substantially equivalent positions without preju- dice to any seniority or other rights and privileges: Byron Colley Lonnie Lott David Timmerman 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All our employees are free to become, remain, or refrain from becoming 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. CLEARWATER FINISHING COMPANY, 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. MILLS INDUSTRIES, INCORPORATED and DISTRICT NO. 8, INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL, Petitioner . Cases Nos .13-RC-3427, 13-RC- 3428 , and 13-RC- 3429. April 15, 1954. DECISION AND ORDER Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Jewel G. Maher, hearing officer . The hearing officer's rulings made at the hearing are free from prejudicial 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 Ac't. 2. The labor organizations involved claim to representcer- tain employees of the Employer. 3. No question affecting commerce exists concerning the representation 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: The Petitioner seeks three separate bargaining units of the Employer's painters , carpenters , and machine repairmen. The Employer and the Intervenor (International Brotherhood of Electrical Workers, Local 1031, AFL) contend that the units sought by the Petitioner are inappropriate. After an election and certification of representatives issued by the Board,' the Petitioner , from 1944 to 1952, represented all production and maintenance employees , including painters, carpenters , and machine repairmen in a single bargaining unit. In August 1952 an election was conducted by the Board in the foregoing unit in which the Intervenor defeated the Petitioner and the Intervenor was certified as Vie exclusive bargaining representative for the same unit of employees formerly repre- sented by the Petitioner.' 157 NLRB 467. 2 Case No. 13-RC-2710. 108 NLRB No. 49.