Washington Mills

WASHINGTON MILLS 93 an employee when, as here, they are merely routine and do not require the exercise of independent judgment, and, moreover, when they are concerned primarily with equipment rather than personnel."' As the dispatchers possess none of the other statutory indicia of supervisory authority,12 we find that they are not supervisors within the meaning of the Act. In view of the bargaining history and the essentially clerical nature of their duties, .we shall include the dis- patchers in the unitla On the basis of the foregoing and the entire record, we find that all accounting and clerical employees in the operating, accounting, and marketing departments of the Employer's New England division, in- cluding credit men, credit clerks, the assistant divisional statistician, and dispatchers, but excluding secretaries to management, industrial relations employees, confidential payroll clerks, salesmen, auditors, cost analysts, marketing real estate and cost clerks, real estate repre- sentatives, tax agents, field claims and safety investigators and ad- j ustors, marketing and staff assistants, professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of See,- tion 9 (b) of the Act 14 [Text of Direction of Election omitted from publication in this volume.] 11 The Baltimore Transit Company, 92 NLRB 1260 ; Zone Oil Trucking Corp., 91 NLRB 541. 12 Although there is testimony that certain dispatchers have on occasion granted time off and determined whether overtime should be worked , it appears that in such Instances the dispatchers assumed to exercise authority which they did not in fact possess. See American Finishing Company, 86 NLRB 412 I' The Baltimore Transit Company, eupra; Zone Oil Trucking Corp., supra. "This is substantially the certified and contract unit noted above. WASHINGTON MILLS and TEXTILE WORKERS OF AMERICA, CIO. Case No. 34-CA-?86. July 10,195° Decision and Order On December 27, 1951, Trial Examiner Max M. Goldman issued his Intermediate Report in this proceeding, finding that the Respond- ent 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. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recom- 100 NLRB No. 25. 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mended that these allegations of the complaint be dismissed. There- after, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. The Board 1 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 briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following additions and modifications. 1. In agreement with the Trial Examiner, we find that the Re- spondent violated Section 8 (a) (1) of the Act by interrogating its employees concerning their own and other employees' union activities. We do not agree with the Respondent's contention that its acts of interrogation did not violate the Act because of their alleged isolated and perfunctory nature. Their very number, as set forth in the Intermediate Report, belies such characterization; furthermore, the Board has consistently held that the type of interrogation involved herein constitutes interference, restraint, and coercion violative of the Act.' However, we do not believe that the Respondent's conduct warrants the issuance of a broad cease and desist order as recommended by the Trial Examiner. 2. We agree, but for a different reason, with the Trial Examiner's finding that the Respondent did not violate the Act by discharging employees Joel Puckett and Thomas Phillips. The Trial Examiner's finding was based on lack of knowledge on the part of the Respondent of their union activities. On the basis of the entire record, we are not convinced that the Respondent lacked knowledge of such activities. Moreover, assuming, arguendo, that the Respondent knew of the union activities of the discharged employees, we find lacking in this instance a preponderance of proof that the Respondent was actuated by dis- criminatory rather than by legal motives in effecting their discharge. Accordingly, notwithstanding a reasonable suspicion of discrimina- tion, the evidence fails to -establish, to the degree necessary for estab- lishing a violation of the Act, that the Respondent discharged Joel Puckett and Thomas Phillips for reasons connected with their union activities.' We shall, therefore, dismiss the complaint insofar as it alleges that the Respondent violated Section 8 (a) (3) of the Act. I Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three -member panel [Chairman $erzog and Members Murdock and Peterson]. 'England Brothers, Inc., 99 NLRB 258; Graniteville Company, Sibley Division, 96 NLRB 456, Standard-Coosa-Thatcher Company, 85 NLRB 1358. 3 See Farber Brothers, Inc., 94 NLRB 748; Punch and Judy Togs, Inc., of California, 85 NLRB 499. 1 WASHINGTON MILLS Order 95 Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respondent, Washington Mills, Mayodan, North Carolina, its officers, agents , successors, and assigns, shall : 1. Cease and desist from : (a) Interrogating its employees concerning their union activities and/or sympathies and those of their fellow employees or in any related manner interfering with, restraining, or coercing its employ- ees 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 representatives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and 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. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its mill at Mayodan, North Carolina , copies of the notice attached hereto marked "Appendix A." 4 Copies of said notice, to be furnished by the Regional Director for the Fifth Region, shall, after being duly signed by the Respondent 's representative, be posted by it immediately upon receipt thereof and be maintained by it for a period of at least sixty ( 60) consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respond- ent to insure that such notices are not altered , defaced, or covered by any other material. (b) Notify the Regional Director for the Fifth Region , in writing, within ten (10 ) days from the date of this Order what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that Respondent violated Section 8 (a) (3) of the Act. * 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." 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix A 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 Labor Manage- ment Relations Act, we hereby notify our employees that : WE WILL NOT interrogate our employees with respect to their union activities and/or sympathies and those of 'their fellow- employees or in any related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organ- ization, to form labor organizations, to join or assist TExTmz WORKERS UNION OF AMERICA, CIO, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, • or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Labor Management Relations Act. WASHINGTON MILLS, 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. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge duly filed by Textile Workers Union of America, CIO, herein called the Union, the General Counsel by the Regional Director for the Fifth Region (Baltimore, Maryland), of the National Labor Relations Board, herein called the Board, issued his complaint dated June 13, 1951, against Washington Mills, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (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 the charge together with notice of hearing were - duly served upon the Respondent and the Union. With respect to unfair labor practices, the complaint alleged in substance that the Respondent had (1) engaged in certain acts of interference, restraint, and coercion; and (2) discharged two certain employees because of their mem- bership in or assistance to the Union or because they engaged in concerted activity. The Respondent's answer denies the commission of any unfair labor practices. WASHINGTON MILLS 97 Pursuant to notice, a bearing was conducted on July 16, 1951, at Winston- Salem, North Carolina, before the undersigned, the Trial Examiner duly desig- nated by the Chief Trial Examiner. The Union appeared by its representatives and the other parties were represented by counsel. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues, was afforded the parties. Only the Respondent filed a brief with the undersigned. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT. The Respondent, a North Carolina corporation, having its principal office and place of business at Winston-Salem, North Carolina, and a mill at Mayodan, North Carolina, is engaged in the manufacture and sale of men's and boys' underwear. During the year ending June 30, 1951, the Respondent purchased raw materials for its Mayodan mill valued in excess of $30,000, of which approxi- mately 90 percent was shipped to the mill from points outside the State of,North Carolina. During the same period, the Respondent produced finished products valued in excess of $50,000, more than 90 percent of which was shipped to points outside the State of North Carolina. The undersigned finds that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Textile Workers Union of America, CIO, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. The events In January 1951 the Union started its organizational drive. At that time employee William J. Puckett became chairman of the union organizing com- mittee, which committee was responsible for obtaining authorization cards from about 600 of the 1,200 to 1,500 employees at the mill.' The active members of this committee included the chairman's son, Joel H. Puckett, and Thomas 0. Phillips, the persons here alleged to have been discriminatorily discharged on March 14. Joel Puckett and Phillips worked together on behalf of the Union and obtained cards from about 100 employees. During the latter part of February, Joel Puckett's and Phillips' immediate supervisor, Ike Chandler, a second hand, who was in charge of the second shift,' mentioned the Union to each of them. In a conversation with Joel Puckett, Chandler declared that the Union would not be any good and that it would be just a mess. In the incident involving Phillips, Chandler stated to Phillips as he walked by while Chandler and employee Dewey Holland were talking, that he had heard that Holland was signing up many people in the Union. Phillips replied 1 The town of Mayodan has less than 2,500 Inhabitants . U. S. Census of Population : 1950; Number of Inhabitants, Chapter 33, North Carolina. U. S. Government Printing Office, Washington, D. C., 1951. 2 The above finding is contrary to the Respondent 's contention that Chandler is not a supervisor. Although Chandler did some fixing himself, it appears that he is in charge of the shift. 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he did not know that Holland was in the Union. Chandler also talked to Joel Puckett's father, William Puckett, about the Union, stating that he understood that, he, William Puckett, was a union man and that be was signing up employees. A few days later Chandler asked William Puckett why he did not sign up Overseer Arthur Tulloch, Chandler's superior. William Puckett suggested, that he give Chandler a card and that Chandler solicit Tulloch. Chandler declined, explain- ing that the Respondent would "get" him, Chandler, and Puckett declared that the Respondent would "get" him, Puckett, sooner. During the same period, Tulloch talked about the Union to employee Hasel D. Gann, another member of the organizing committee. On this occasion Tulloch asked Gann if certain papers Gann had with him were some of William Puckett's papers. When Gann stated that they were not some of Puckett's papers, Tulloch inquired what Gann thought of what Puckett was trying to do. Gann stated that he did not know what Tulloch was referring to' and Tulloch's retort was that Gann knew what he was talking about. Tulloch then inquired of Gann as to whether he thought conditions would be any better if they had a union. Gann replied that he did not know and that it remained to be seen. In March the Respondent installed a conveyor system using certain baskets to haul cloth for the yarn mill, the place where Phillips and Joel Puckett were em- ployed. While the conveyor was being tested and/or shortly after it was put into actual operation on Saturday, March 10, some of the employees rode the conveyor for short distances by catching the baskets as they came by overhead at reach- ing height and hanging on to them. After the system was placed in operation, but prior to the instant discharges, in the presence of employees, including Phillips and Joel Puckett, Chandler, too, caught a basket and hung on for a short distance. Some employees also rode in the baskets. It does not appear that supervisors observed any employees other than Joel Puckett and Phillips ride in the baskets. Phillips and Joel Puckett were observed riding in the baskets by Joseph-Griffin, night superior of spinning, sometime during the evening of Monday, March 12. Phillips and Joel Puckett, unaware that they were being observed by Griffin, in order to see what the experience was like, each got into separate baskets at a point of the conveyor system in a building next to the one in which they worked. They entered the baskets in the pressing room by climbing a fence which sur- rounded the opening in the floor and descended in their respective baskets through the opening to the cloth room below. There is a distance of about 14 feet between the two floors. The next morning when Griffin was leaving the plant he reported the incident to his superior, Donald Stilwell, superintendent of the spinning mill. Griffin explained to Stilwell that he recognized one of the men as Joel Puckett but that he could not identify the other. Stilwell in turn reported the matter to a Mr. Cashion, superintendent of the yarn mill. Cashion asked for more details and the next morning, March 14, when Stilwell and Griffin next regularly met, Griffin still could not identify the other man. Stilwell in turn reported that to Cashion that day. Meanwhile, on March 13, Tulloch, Cashion's subordinate, asked employee James Davis if he had seen Joel Puckett and Phillips riding the conveyor. Davis told Tulloch that he had seen them ride the conveyor and Tullock stated that he had had a report on them. Shortly after Joel Puckett and Phillips started to work, at 3 p. m. on March 14, Chandler told them to report to the office and to see Tulloch and Cashion. At this interview Tulloch stated to Joel Puckett and Phillips that he was sorry to discharge them, that they knew the reason , namely, riding the conveyor. Joel Puckett admitted to Tulloch that he rode the conveyor and pointed out that WASHINGTON MILLS 99 other employees had done the same thing and that he did not see any harm to it. Tulloch asked who the other employees were but Joel Puckett did not name any others. Sometime after the discharge Chandler asked one of the yarn mill employees if^he had seen anyone tiding the conveyor. This employee replied that he had, but Chandler did not ask him to identify the person or persons he had' seen. By notice dated March 21, the Respondent announced a prohibition against riding the conveyor. Employees with substantial experience with the Respondent testi- fied that they did not recall any instance of the Respondent penalizing an em- ployee by discharge for a first offense and that the practice had been to lay off an employee for a week or two. Joel Puckett and Phillips were satisfactory employees having about 71/2 years experience with the Respondent, respec- tively. So far as the record shows, this was their first offense. The Re- spondent adduced testimony that it had no rule against discharging for a first offense and that its practice was to the contrary. The Respondent gave only two examples of discharge for a first offense, (1) violating a published no-smoking rule and (2) cursing and threatening a second hand. B. Conclusions The issue thus presented is whether Joel Puckett and Thomas Phillips were discharged for their union activities and sympathies as the General Counsel alleges or for riding the conveyor as the Respondent contends. Chandler in the presence of Joel Puckett and Phillips and other employees engaged in horseplay in connection with the conveyor. When Griffin observed Joel Puckett and Phillips riding the conveyor during the evening of March 12, he did not believe it was sufficiently significant to do anything about it immedi- ately, but waited until the next morning when he regularly met his superior, Stilwell. That day, March 13, when the top-ranking officials of the Respondent were aware of the incident, they did nothing toward preventing the reoccurrence of this behavior. It was not until about a week later that the Respondent posted a notice prohibiting this_conduct. It is therefore concluded that the Respondent did not view the incident with a great deal of seriousness. Joel Puckett and Phillips were satisfactory employees and Puckett had many years of experience with the Respondent. Under these circumstances, the severest form of dis- cipline, discharge, was undoubtedly an extreme penalty, regardless of whether the Respondent had a particular practice with respect to the less serious matters. Whatever else led to this extreme action by the Respondent, the question here is whether Joel Puckett's and Phillips' union activity was the cause for the discharge Chandler's and Tullock's conduct shows the Respondent's opposition to the Union. The record does not disclose knowledge on the part of the Re- spondent of Joel Puckett's and Phillips' activities on behalf of the Union. It is accordingly recommended that the 8 (a) (3) allegation of the complaint be dismissed. The record does show violations of Section 8 (a) (1) by the following acts and conduct : Chandler's declaration to Phillips that he, Chandler, had heard that Holland was soliciting employees on behalf of the Union, and Chandler's statement to William Puckett that he was a union man and signing up employees for the Union, as being calculated to elicit information concerning Holland's and Puckett's union sympathies and activities ; s and Tulloch's inquiries of Gann as to whether he was engaging in union activities (by asking Gann if he had s Graniteville Company, Sibley Division, 96 NLRB 456. See finding relating to foot. note 39. 227260-53-vol. 100-8 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD some of William Puckett's papers in his position), what he thought of William Puckett's union activities, and as to Gann's union sympathies. 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 ob- structing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Since it has been found that by certain interrogation described above, the Respondent has interfered with, restrained, and coerced its employees in their right to self-organization, it will be recommended that it cease and desist there- from. The Respondent's conduct for the reasons stated by the Board in Stand- ard-Coosa-Thatcher Company ,4 particularly, that employers do not engage in interrogation as a matter of idle curiosity, discloses a fixed purpose to defeat self-organization and its objectives. Because of the Respondent's unlawful conduct and its underlying purpose, the undersigned is convinced that the unfair labor practices here found are persuasively related to the other unfair labor practices prescribed by the Act and that the danger of their commission in the future is to be anticipated from the course of the Respondent's conduct in the past. The preventative purposes of the Act will be thwarted unless the recom- mendations are coextensive with the threat. In order, therefore, to make effec- tive the interdependent guarantees of Section 7, to prevent the recurrence of the unfair labor practices, and to minimize the strife which burdens and ob- structs commerce, and thus to effectuate the policies of the Act, it is recommended that the Respondent cease and desist from infringing in any manner upon 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, the undersigned makes the following: CONCLUSIONS OF LAW 1. Textile Workers Union of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the' rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 4. The Respondent has not violated Section 8 (a) (3) of the Act. [Recommendations omitted from publication in this volume.] * 85 NLRB 1358. 5 May Department Stores v. N. L R. B., 326 U. S. 376.