J. P. Stevens & Co., Inc.

DELTA FINISHING COMPANY 659 Act which is required to comply with the filing provisions of Section 9 (f), (g), and (h) of the Act for the petitioning International to be deemed in full compliance 4 The Board is administratively satisfied that District 5 is now in full compliance. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 4. The Employer is engaged in cutting, buying, processing, and selling lumber. The Petitioner seeks a unit of all maintenance and production employees. Although the Employer stated that it would take no position concerning the appropriate unit, there was agreement between the parties on exclusions from the unit. We find that all main- tenance and production employees at the Employer's lumber opera- tion located at Beaufort, North Carolina, including the wood em- ployees, truckdrivers, caterpillar drivers, firemen, sawyers in the woods, and sawman, but excluding the woods foreman, the officers of the Employer, officer clerical employees, employees of contractors, guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (h) of the Act. [Text of Direction of Election omitted from publication.] A See United Tanner's Inc, 103 NLRB 760; Franklin Tanning Company, 104 NLRB 192. DELTA FINISHING COMPANY ( DIVISION OF J. P. STEVE, NS & CO., INC.- PLANT No. 3 ) and UNITED TEXTILE WORKERS OF AMERICA, AFL DELTA FINISHING COMPANY ( DIVISION OF J. P . STEVENS & CO., INC.- PLANT No. 3 ) 1 and TEXTILE WORKERS UNION OF AMERICA, CIO. Cases Nos. 11-CA-558 and 11-CA-713. February 18,1955 Decision and Order On May 20, 1954, Trial Examiner Albert P. Wheatley issued his Intermediate Report in Case No. 11-CA-558, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (a) (1) of the Act, and recom- mending that it cease and desist therefrom and take certain affirma- tive action, as set forth in the copy of the Intermediate Report at- tached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended that the complaint be dismissed with respect to such al- legations. Thereafter, the General Counsel and the Respondent 1 The name of the Respondent appears as amended at the hearing 111 NLRB No. 114. 344056-55-vol. 111--43 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD filed exceptions to the Intermediate Report containing supporting arguments. On July 30, 1954, Trial Examiner Stephen S. Bean issued his In- termediate Report in Case No. 11-CA-713, finding that the Respond- ent had not engaged in certain unfair labor practices in violation of Section 8 (a) (1), (3), and (4) of the Act, and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a brief in support thereof. On September 20, 1954, the General Counsel filed with the Board, and served upon the parties, a motion which, in effect, requested the Board to consolidate both cases for the purpose of decision. The Re- spondent did not oppose the motion. Because the issues in both cases are related and involve the same Respondent, and in order to effectu- ate the policies of the Act, we hereby grant the motion and will issue a consolidated Decision and Order. The Board has reviewed the rulings of the Trial Examiners made at the hearings and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Reports, the exceptions and briefs, and the entire record in each case and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiners, with the following additions and modifications. Case No. 11-CA-558 1. We agree with the Trial Examiner that the Respondent, in vio- lation of Section 8 (a) (1) of the Act, interfered with, restrained, and coerced its employees in the exercise of their self-organizational rights guaranteed by the Act. As discussed more fully in the Intermediate Report, this conduct consisted of : (a) Supervisor Baker's interrogation of employee Jones concern- ing union activities at the plant, which was coupled with Baker's re- mark that he "hope[d] none of the men do anything that would hurt them." (b) Personnel Director Thomas' questioning of employee Lisenby about union activities in the plant and his union sympathies, in the, course of which Thomas also asked Lisenby, "How about helping us break the union?"' (c) Thomas' statement to Lisenby as part of the same conversation indicating that the Respondent was laying off employees on January 2 We find that, in the context of the Respondent's other unlawful conduct and its ad- mitted hostility to the Union, the acts of interrogation were coercive See Sears, Roebuck & Co, 109 NLRB 632. DELTA FINISHING COMPANY 661 30, 1953 (the elimination of the second shift grey room employees), as a means of getting rid of the Union.' (d) Promulgating and enforcing a rule which prohibited employ- ees from engaging in union solicitation and' discussion on company property during nonworking time. Like the Trial Examiner, we find that such a rule is an unreasonable impediment to self-organization where, as here, there is no evidence that special circumstances made the rule necessary to maintain production or discipline.4 (e) Promulgating and enforcing a rule which prohibited employees from distributing union literature in the plant during nonworking hours. The Board has recognized the right of an employer to prevent em- ployees from distributing union literature in the plant proper during nonworking time in the interest of keeping the plant clean and or- derly.' In the present case, it is not contended, nor is there any evi- dence, that the purpose of the no-distribution rule was to maintain plant cleanliness. On the contrary, the record establishes that this rule was adopted to defeat the Union's organizational campaign at the plant. Under the circumstances, we find that the Respondent's pro- mulgation and enforcement of its no-distribution rule violated Sec- tion8 (a) (1) of the Act. (f) Promulgating and enforcing a rule against union discussion during working time in order to impede the Union's organizational campaign. As working time is for work, a rule which prohibits union discus- sion during working hours is presumed to be valid in the absence of evidence that it was adopted for a discriminatory purpose.' The evi- dence in this case, however, compels a finding that the rule was adopted without any reasonable relation to the efficient operation of the plant, but merely as a device to obstruct the employees' right to self-organi- zation. Thus, the record shows that the rule was promulgated at the very time that the Union was inaugurating its organizational cam- paign; that talk concerning other matters not directly associated with the Respondent's business was permitted during working hours; and that the Respondent was admittedly hostile to the Union. These fac- tors, when coupled with the other unfair labor practices committed by the Respondent, manifest a clear discriminatory purpose in the pro- 3 We, however, agree with the Trial Examiner that the record is insufficient to estab. lish that the January 30 layoff was actually motivated by antiunion considerations, rather than by legitimate economic reasons 4 Republic Aviation Corp v N. L R B , 324 U. S 793. 8 Monolith Portland Cement Company, 94 NLRB 1358, 1365-6 ; Colonial Shirt Corpora- tion, 96 NLRB 711, 713 ; Glen Raven Silk Mills, Inc., 101 NLRB 239, 240, 244, enfd. 203 F 2d 946 (C A. 4). 9 Peyton Packing Company, Inc, 49 NLRB 828, 843, enfd. 142 F. 2d 1009, 1010 (C. A. 5) ; see also Republic Aviation Corp. v. N L R. B , supra 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mulgation of the above rule to impede the self -organizational efforts of its employees.? 2. Like the Trial Examiner, we find that the General Counsel failed to prove that the Respondent was motivated by discriminatory rea- sons, ( a) in discontinuing the second shift of its grey room operations and thereby causing a layoff of the complainants herein; (b) in not recalling Lisenby and Moore to their former jobs at the plant after the layoff; and (c) in discharging James Jones. Accordingly, we shall dismiss those portions of the complaint alleging discrimination in violation of Section 8 (a) (3) of the Act. Case No. 11-CA-713 1. The Trial Examiner found that the Respondent did not violate Section 8 (a) (1) of the Act by Supervisor Street's statements to em- ployee Carter as to how Carter ever got mixed up with the Union; as to how he thought he would benefit if the Union organized the plant; that he was doing himself more harm than good by trying to organize the plant; and that Personnel Director Thomas was aware of practically every union meeting that was held in his home and asked Carter whether he knew this fact. In so doing, the Trial Ex- aminer attached no coercive significance to these statements primarily because he regarded them simply as a friendly effort by a supervisor to reason with an employee to abandon the Union and because these statements were isolated in character. We do not agree with the Trial Examiner's appraisal of Supervisor Street's remarks. We find that they were more than merely priv- ileged expressions of opinion; rather, we find that they contained veiled threats of reprisal which Carter might suffer for his organiza- tional activity." It is noted that the remarks were directed against a prominent union adherent, whose home, to the Respondent's knowl- edge, was used for union meetings. Although these meetings were publicized, it is obvious that Street's statements were also intended to indicate that the meetings were kept under surveillance by Per- sonnel Director Thomas 9 and that attendance might result in punitive action. Nor do we agree with the Trial Examiner that Street's remarks were isolated. For, not only do they reflect the Respondent's con- 7 Cf Standard -Coosa-Thatcher Company, 85 NLRB 1358 , 1364-5, Cullman Electric Cooperative, 99 NLRB 753, 754. 8 Although not alleged as an unfair labor practice , we note, as did the Trial Examiner, that a supervisor threatened Carter with discharge if he continued to visit his wife in another department , while other employees who apparently were not members of the Union were allowed to visit outside their departments U The record shows that Thomas , on "March 29 , 1954 , drove an automobile past Carter's home 5 or 6 times, twice with the headlights off, but with parking lights on, and then after the last trip he alighted from the car and stationed himself beside a building about 2 blocks from the Carter residence. DELTA FINISHING COMPANY 663 ceded policy to discourage membership in the Union, but also demon- strate a continuation of the Respondent's pattern of coercive conduct in which Thomas and another supervisor (Baker) engaged and which was litigated in Case No. 11-CA-558, previously discussed herein.10 Accordingly, we find that the Respondent, by reason of Street's conduct, interfered with, restrained, and coerced employees in the exercise of their self-organizational rights and thereby violated Section 8 (a) (1) of the Act. 2. We accept the Trial Examiner's finding that the General Coun- sel failed to establish by a preponderance of the evidence that the Respondent unlawfully discharged Sellers because of his union mem- bership or because he gave testimony on behalf of the General Coun- sel in the earlier case. Accordingly, we shall dismiss the complaint, insofar as it alleges a violation of Section 8 (a) (3) and (4) of the Act. THE REMEDY In view of the foregoing findings, and in order to effectuate the policies of the Act, we shall adopt the Trial Examiner's recommenda- tions in Case No. 11-CA-558, with certain modifications provided in our Order hereinafter directed. As Textile Workers Union of Amer- ica, CIO, the Charging Party in Case No. 11-CA-713, is the successor labor organization of United Textile Workers of America, AFL, the Charging Party in the other case, we shall only name the former labor organization in our Order. Order 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, Delta Finishing Company (Division of J. P. Stevens & Co., Inc.-Plant No. 3), Wallace, South Carolina, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Interrogating employees concerning their membership, sym- pathies, or activities on behalf of Textile Workers Union of America, CIO, or any other labor organization , in a manner constituting inter- 10 Contiary to our dissenting colleague's opinion , the Board , with judicial approval, has consistently evaluated a respondent 's acts in the light of his prior conduct although oc- curring outside the 6-month statutory limitation period , particularly where this conduct had previously been found to constitute an unfair labor practice . See, for example, N L R. B v. Reed & Prince Mfg. Co , 205 F . 2d 131, 139-140 (C. A. 1 ), enfg. 96 NLRB 850, 857; N. L. R B v General Shoe Corp , 192 F 2d 504 , 507 (C A . 6), enfg 90 NLRB 1330; Brady Aviation Corporation, 110 NLRB 25 . Indeed, the Universal Oil Products Company case, 108 NLRB 68 , cited in the dissent in support of our colleague 's position affirms our view Although the Board in that case refused to find an 8 (a) (2) violation, it did so only because, unlike the present case, there was insufficient evidence in the record of unlawful acts within the 6 -month period to warrant such a finding 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ference, restraint, or coercion in violation of Section 8 (a) (1) of the Act; threatening employees with economic reprisals because of their union or concerted activities; giving employees the impression that it was keeping union meetings under surveillance; promulgat- ing and enforcing any rules which prohibit employees from engag- ing in union solicitation or discussion or the distribution of union literature on company property during nonworking time ; and dis- criminatorily promulgating and enforcing a plant rule against union discussion during working time for the purpose of impeding the self- organizational efforts of its employees. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named labor organiza- tion, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted ac- tivities 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 requir- ing 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) Rescind plant rules insofar as they prohibit employees from engaging in union solicitation or discussion on company property dur- ing their nonworking time. (b) Post at its plant in Wallace, South Carolina, copies of the notice attached hereto marked "Appendix." 11 Copies of such notice, to be furnished by the Regional Director for the Eleventh Region, shall, after being duly signed by a representative of the Respondent, be posted by the Respondent immediately upon receipt thereof and main- tained 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 to insure that such notices are not altered, defaced, or covered by other material. (c) Notify the Regional Director for the Eleventh Region (Wins- ton-Salem, North Carolina), in writing, within ten (10) days from the date of this Order as to what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaints be, and they hereby are, dismissed with respect to the allegations that the Respondent violated Section 8 (a) (3) and (4) of the Act. n 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." DELTA FINISHING COMPANY 665 MEMBER RODGERS, dissenting in part : While I concur in the findings and conclusions in Case No. 11-CA- 558, I cannot agree with the majority that the statements attributed to Respondent in Case No. 11-CA-713 amount to a violation of Sec- tion 8 (a) (1) of the Act. Like the Trial Examiner, I would find these statements, " the innocuous remarks of a solitary supervisor to a single employee," insufficient to support a conclusion that the em- ployee or any one else was interfered with, restrained, or coerced. To arrive at the opposite conclusion and to find specifically that the statements directed at Carter were not made in isolation, the majority has found it necessary to rely for support upon the record and findings of an independent case (Case No. 11-CA-588) combined with this case, No. 11-CA-713, solely for the procedural convenience of issuing a con- solidated decision and order. If the spirit and intent of Section 10 (b) has any meaning what- ever, it most certainly means that this Board has no authority to reach back and consider year-old facts, already litigated, for the purpose of considering and evaluating newly alleged unfair labor practices. That is precisely what has been done with the facts found in Case No. 11-CA-588 (with whose remedial order, incidentally, I concur), to prove that the Carter incident was not an isolated one but a continuation of the pattern of unfair labor practices found in that previous case. If this case is so weak that it cannot stand upon its own facts, I see no legal basis for going beyond the record for adequate support. Therefore, if this Board, as it has recently held '12 is precluded by statute from finding unlawful any conduct which occurred prior to the statutory 6-month period, or from giv- ing independent and controlling weight to the evidence of such con- duct, as distinct from considering make-weight 13 or background evi- dence," certainly the use of such outdated evidence from another case would warrant the same application of the statute. Accordingly, while I would grant the General Counsel's motion to consolidate these two cases, I would do so only for the purpose of issuing a consolidated decision and order. By thus deeming the evidence in the earlier case to be inadmissible in the latter one, I must necessarily reject the majority's conclusion that the conduct found in the latter one was of a pattern. Instead, I would sustain the Trial Examiner and dis- miss the complaint in Case No. 11-CA-713 as unsupported by the record. 12 Universal Oil Products Company, 108 NLRB 68. is N. L R. B v. Reed & Prance Mfg. Co , 205 F. 2d 131, 140 (C. A. 1). 14 N. L R. B v. General Shoe Corp., 192 F. 2d 504 , 507 (C. A. 6) ; Brady Aviation Corpo- ration, 110 NLRB 25. 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 interrogate our employees concerning their union membership, sympathies, or activities on behalf of Textile Work- ers Union of America, CIO, or any other labor organization, in a manner constituting interference, restraint, or coercion, in violation of Section 8 (a) (1) of the Act. WE WILL NOT threaten our employees with economic reprisals because of their union or concerted activities. WE WILL NOT give the employees the impression that we are engaging in surveillance of their union meetings in order to dis- courage union membership or activity. WE WILL NOT promulgate or enforce any rules which prohibit employees from engaging in union solicitation or discussion or the distribution of union literature on company property during nonworking time. WE WILL NOT discriminatorily promulgate and enforce a rule against union discussion in the plant during working hours for the purpose of impeding the self-organizational efforts of the employees. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collec- tive 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 membership in a labor organization as a condition of employment, as author- ized in Section 8 (a) (3) of the Act. WE WILL rescind plant rules insofar as they prohibit employees from engaging in union solicitation or discussion on company property during their nonworking time. DELTA FINISHING COMPANY (DIVISION OF J. P. STEVENS & CO., INC.-PLANT No. 3), 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. DELTA FINISHING COMPANY Intermediate Report STATEMENT OF THE CASE 667 The principal issues for determination herein are: 1 (1) Did Delta Finishing Company (Division of J. P. Stevens & Co., Inc.-Plant No. 3), herein called Respondent, on or about January 30, 1953, unlawfully discon- tinue its second shift grey room operations thereby causing Franklin Butler, Hugh Mendel Lisenby, Woodrow Roscoe, Theodore W. Parrott, Everett Moore, and James Ingram to be laid off? (2) Did Respondent unlawfully discharge James Jones on or about March 30, 1953? (3) In reemploying Lisenby and Moore, on or about March 30, 1953, did Respond- ent unlawfully discriminate in regard to hire or terms or conditions of employment? (4) Did Respondent by the conduct specified above and by certain other conduct unlawfully interfere with, restrain, or coerce employees9 A. The layoff and 8 (a) (1) conduct Prior to January 30, 1953, materials processed at the plant involved herein were stored in a warehouse in Bennettsville, South Carolina (about 10 miles from the plant), and were trucked to the plant each day. During 1952, construction of a new warehouse adjacent to the plant was undertaken. It was contemplated (in 1952) that upon completion of the new warehouse materials to be processed would no longer be stored in the Bennettsville warehouse and that there would be a consolidation of the first and second shifts in the grey room 2 and that such consolidation would re- sult in increased efficiency and decreased costs. The new warehouse was not com- pleted until the latter part of January 1953 and the contemplated changes were not made prior to January 30, 1953, "because of the lack of physical facilities and the lack of warehouse space." By letters dated December 30, 1952, Respondent's attorneys notified the lessor of the Bennettsville warehouse that after January 31, 1953, Respondent would have no further need for these facilities. On or about January 30, Respondent discontinued using this warehouse except for storage of some machinery and storage of a relatively small quantity of finished materials. During the latter part of March or the first part of April 1953, Respondent began again to use this warehouse for storage of materials. However, after April it was used primarily for storage of finished mate- rials. As noted above, prior to January 30, 1953, it had been used for storage of materials to be processed. During the first week of January 1953, Clyde Moore, plant manager; Kelly Trayn- ham, plant superintendent; J. R. Thomas, personnel director; and Jack A. Streeter, preparations department head (the grey room was part of this department) con- ferred concerning the proposed consolidation and decided that it should be made on January 30, 1953.3 On or about January 15, 1953, Mendel Lisenby and Everett Moore, second shift grey room employees, called upon Lawrence Gore, then business agent for the South- ern States General Board, United Textile Workers of America, AFL, and discussed organizing employees at the plant involved herein. Moore and Lisenby were advised by Gore to "set up committees in the various departments" and a meeting was sched- 'There is no issue herein concerning jurisdiction Respondent operates a cloth finish- ing plant at Wallace, South Carolina, where materials, supplies, and equipment valued in excess of $500,000 are received annually from outside South Carolina, and from which products valued in excess of $50,000 are shipped annually to points and places outside South Carolina. After the close of the hearing counsel for the General Counsel submitted a motion to correct the transcript in certain particulars No opposition thereto has been received. Said motion is hereby granted and is made a part of the record herein as Trial Examiner's Ex- hibit No 1. 2It was believed that by having most of the synthetics processed on a single shift which would operate during the same time that other departments also concerned with synthetics operated, problems concerning synthetics which needed to be handled by these other de- partments (the planning department and the New York office) could be more expeditiously handled. The third shift was not concerned primarily with synthetics, the other two shifts were Also the planning depaitment and the New York office were not readily available for contact during the hours that the second shift operated. 3 Based upon the testimony of Moore and Streeter, Thomas' testimony is not consistent with the above finding and Traynham did not testify with respect to this matter. 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD uled for January 23, which was later rescheduled for January 24. At the meeting on January 24, attended by 8 or 10 employees,4 "committees to make contacts" were set up and another meeting was scheduled for January 31, 1953. On January 31 (approximately 10 employees attended this meeting) another meeting was scheduled for February 1. On February 1, those present (between 8 and 12 employees) were given union membership application cards and requested to contact other employees. No signed cards were obtained and no further meetings were held. Throughout this period of union activity Lisenby and Moore were the "spark plugs" for the Union among the employees of Respondent. However, their activities were not restricted to second shift or to grey room workers. Rather they tried to organize among all employees. During January 1953, there were between 450 and 475 employees. On Wednesday, January 28, 1953, Plant Manager Moore told Personnel Director Thomas that he (Moore) had been informed that efforts were being made to organize the employees, that "we did not want a union in the plant" and did not want any disruption of production because of union activities, and told Thomas to find out if there was any dissatisfaction among the employees, and, if there was any dissatis- faction, to find out what it was. On Wednesday and Thursday Thomas investigated these matters 5 and late Thursday afternoon (January 29) he told Moore that it looked like there was union activity throughout the plant. Hollis Spease, a second shift laboratory technician, testified that on January 26 or 27, 1953, Carlo Baker, chief chemist, called him to his (Baker's) office and asked if he (Spease) had heard any talk around the plant about anybody being dissatisfied and that he told Baker he had "heard some were disappointed about short time." Spease further testified: In the same conversation Mr. Baker asked me if I had heard any talk of the union, and he said that as far as he was concerned, that the union was the next thing to Communism, and that if the management knew he was talking to me like this he would be fired. Q. All right, now any time after this-strike that. Do you recall anything else of that conversation with Mr. Baker? A. No, sir. Q. Did he say he hoped anything? Mr. BLAKENEY: I object. A. No, he said, "I hope you are not mixed up with the wrong crowd." Q. (By Mr. Goldman.) Now at any other time did any member of manage- ment at Delta Finishing Company speak to you about the union? A. The week following the layoff, Mr. Baker talked to me again outside of the dye house, and asked me, he told me, he said, "Don't be messing around with the wrong crowd," that is the only other thing. Q. Do you recall anything further of that conversation? A. No. Q. Was your work mentioned? A. He said I was doing good work. Q. Did he mention anything about mistaken ideas? A. He did say that some people had mistaken ideas about the union, and said they thought they were good, but said they were not, said the union was not good. Carlo Baker, when questioned about this conversation, testified that he remembered a conversation with Spease and Jones (another laboratory technician) "some time up in February" in which Spease and Jones stated they were "dissatisfied with short time" and Jones asked his (Baker's) "feelings" about the Union. Baker further testified that on this occasion he told Jones that in his (Baker's) opinion the Union was "pretty closely kin to communism" and that was the extent of the conversation.6 On the basis of the entire record herein it appears more likely that this conversation occurred in February than in January. Furthermore, on the basis of the entire record herein, Baker appears to be a more credible witness than Spease. The Trial 4 Moore was the only employee from the grey room in attendance. Counsel for the Gen- eral Counsel conceded at the hearing that other employees attending this meeting were not in any way discriminated against. 5 Thomas testified his investigation was confined to talking to supervisors and depart- ment heads and to observations. He testified he did not talk to any employee, other than Lisenby (this conversation is discussed elsewhere in this report), about these mailers prior to the layoff on January 30, 1953. 6 Jones was not questioned about this conversation. DELTA FINISHING COMPANY 669 Examiner credits Baker's version of this conversation and finds that Respondent did not thereby violate the Act. On Wednesday or Thursday (January 28 or 29), at about the time of the change of shifts (at about 11 p. m.), Theodore Parrott (an employee not especially active on behalf of the Union at this time) stopped 2 or 3 men passing by where he (Parrott) was working and "asked how they felt towards the union." 7 Parrott, Lisenby, and Everett Moore testified that on this occasion Personnel Director Thomas was nearby (in an office between 45 and 60 feet from where Parrott was) observing what was taking place. Lisenby and Moore further testified that this was the first time they had seen Thomas at the plant that late at night. Lisenby and Moore told Parrott about Thomas' presence. Thomas testified "my usual business hours are from can't see to can't see. Actually from 8:30 in the morning until 5:30 or 6 o'clock in the afternoon unless there is something particular otherwise," that he remembered being in the grey room "a good many times at night," that he did not remember this incident involving Parrott, and that he did not "get any idea or suggestion from anything he saw Parrott doing that he [Parrott] was out in the gray room discussing union with anybody." 8 The Trial Examiner is not persuaded that evidence with respect to this incident involving Parrott, Lisenby, and Moore is sufficient to warrant an inference or finding that Thomas was engaging in unlawful surveillance or an inference or finding that Thomas, by virtue of the activities of these employees on this occasion, was aware of their pro-union sympathies. James Jones, a laboratory technician on the first shift (one of the discharged em- ployees involved herein) testified that on Wednesday or Thursday (January 28 or 29) Carlo Baker, chief chemist, asked him if he had "heard any of the employees complaining around the plant" and when he (Jones) responded that the employees were complaining about short time, said, "I certainly hope none of the men do any- thing that would hurt them." Jones further testified that Baker also said, "I think things are going to look better in the future" and asked him (Jones) if he had "heard any talk about the Union." Jones testified he (Jones) answered, "No, sir." Baker did not testify concerning this conversation. Everett Moore testified that on Thursday afternoon (January 29) Jones ap- proached him at the water fountain in the grey room during a change of shifts and told him about the conversation with Baker (noted above) and, in an excited manner, indicated his (Jones) belief that they "had been caught." Moore further testified that this conversation was cut off abruptly when he (Moore) noticed Jack Streeter, preparation department head, 8 or 10 feet away, looking in their direction. Jones did not testify concerning this incident. Streeter testified he did not overhear such a conversation between Moore and Jones and that he did not remember or have any recollection of an occasion similar to that described by Moore. The Trial Examiner finds that Streeter did not overhear such a conversation. Shortly after Lisenby reported for work on January 30, 1953, he was sent to the personnel office. Lisenby's account of what occurred in the personnel office follows: I went up to the personnel department, and I knocked on the door and Mr. Thomas said, "Come in ..." as I started to sit down Mr. Streeter [prepara- tions department head] came in . and Mr. Thomas said, "Mendel, what I am going to ask you is illegal" but he said, "I think you are a good friend and I would like to think you are and you will give me an answer that I want," and he says, "If I hear anymore about it I will have Mr. Streeter to say that I did not say it," he says. "What is this going on about a union, in the plant"; and I says, "I don't know anything about it," and he said, "Well, you mean you have not heard it," and I said, "No, I have not," and he says, "Well, it is going on and," he says, "We got to break it up." Mr. Streeter said, "Well, we can't afford to have a union here now," and Mr. Thomas said, "Well anyway," he said, "How about helping us break it up," and I said, "I am sorry, I can't do it." I said, "I was born and raised with these people and went to school with them and I can't afford to do it." And Mr. Streeter said, "Well, what he means is he could not give you any information," and Mr. Thomas then said, "Well, that is all right, he said after tonight we are going to have to lay off the gray room," he said, "After tonight there will not be any gray room and that seems to be the only way that we can break it and we did get rid of it." He said, "You won't 7 Parrott testified there was nothing unusual about his "stopping employees passing by and talking to them." 8 Belton Laney, personnel officer, testified that he had seen Thomas at the plant at night "quite a few times" and that he had seen Thomas there on many occasions after 10: 30 p. in. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have to worry about your job, we will put you somewhere else in the plant," and said, "How would you like to have the first shift ," and I said, "Well, I was getting along mighty good where I was at ," and he said, "Well, I guess so." He said, "With your work on the side papering 9 you could do the papering better in your spare- time." I said, "Well, we will talk about that when the time comes," and he said, Mr. Streeter said, "I have not announced that we were going to lay off the gray room yet, don't say anything about it when you get back," and he said , "I am going to call a meeting and announce it in a few minutes," and I said, "You mean I am laid off too," and he said, "Yes, that seems what is going to have to be done," so I got up to leave and he says, "How do you feel about the union anyway," and I said, "I don't know, sir. I don't know anything about the Union," I said, "I have never worked under a union in my life and don't know anything about them," and he said, "Did you work in the Navy Yard at Charleston during the war," and I said, "Yes, but I was in the civil service." And then I left and went back in the plant. According to Thomas , a friendship for Lisenby developed as a result of the latter working at the former 's house and when it became apparent that Lisenby would have to be laid off, he (Thomas ) sent for Lisenby to break the news about the lay- off to him in a less drastic form than had been planned for the other employees. Thomas further testified that since at that time he (Thomas ) was investigating "dis- satisfactions ," if any, in the plant, he decided he "might be able to get [from Lisenby at this interview ] some indication which would be of help to me " Concerning this interview, Thomas testified: I told Mr. Lisenby that I had understood and had information or there was information that there was some union activity in the plant. I asked him did he know or if he had any idea as to what might be some of the underlying causes of any feeling of dissatisfaction which might lead to or bring about such union activity. Q What did he say to that? A. He told me- Q Did he make any reply to that? A. Yes. Q. What did he say? A. He said , well, he knew of a couple of things or in the discussion he said or mentioned he knew of a couple of things He in effect told me he knew of at least two things which he had heard some people talking about. Q What were they? A One of them was that there was a feeling in most of the preparation de- partment that a good many of the rates were not comparable to the same basis as in other departments . By that, I mean that machine operators in the prepa- ration department were paid in general a little bit lower scale than machine operators in the dyeing and finishing departments. Q. Did he mention anything else? A. Yes, the other thing mentioned was short hours, short time as it is com- monly called. Q What was the rest of your conversation with him? A. Well, I told him that he probably knew it was very little that anybody could do about short hours when they were in effect , that is when the condi- tions were there, but that I did not know how long that was going to last. In fact I did not think it was going to last too long. I told him about the rates that I would start something off to see about a survey towards a readjustment of the rates . I then told him that I hated to see him go but that the second shift in the gray room due to conditions which at that time or which we thought would be best for our own business in order to consolidate the operations there, that we were going to discontinue the second shift in the gray room . His remark was, "You mean I'm fired ?" I said, "No, you are not fired at all." He said, "You mean I have not got a job," and I said, "Well, after tonight when we consolidate this gray room at least for a time you won't have a job." "We will do every- thing we can to get you replaced as soon as we can ." He then asked me was there anything wrong with his work , which I knew was going to be a question in my mind, and I told him no, and Jackie told him no, Jackie assured him- Q. Who is Jackie? A. Mr. Streeter, head of the department who was there with me. There was no reflection on his work , that was something that we had information on for 9 During his off-duty hours Lisenby worked as a wallpaper hanger and had done some paperhanging at Thomas' house DELTA FINISHING COMPANY 671 some time, and now had come the time to put it into effect, and there was noth- ing that had anything to do with his work or his work had anything to do with. Q. All right, then did he depart, was that all or any more? A. He departed with the statement to me that he had never worked any place that he enjoyed working any more than he liked us and he liked the company, and that he enjoyed working there and that he hoped that he could get back on as soon as he could , as soon as we could get him back on , and that is the sub- stance of my conversation with Mr. Lisenby, on that occasion. Q. Had you had any report or any intimation or any idea from any source that he was in any way active in the union effort? A. None He is the last man that I would have thought. Q. Now he testified in this case that on that occasion in your office that you said to him, "We have got to break up the Union , how about helping us," and he says, and I quote, "I am going to even up with these fellows," is that true? A. I did not say that, Mr. Blakeney. Q. He said that Streeter said, "We can't afford to have the Union, and after tonight there won't be any gray room, that is the only way we can break it up." Did Mr. Streeter say that? A. Not in my presence he did not, sir. Streeter testified: Mr. Thomas asked Mendel [Lisenbyl if he had heard of any union activity go- ing on in the plant, I don't remember exactly what Mendel told him, I think he told him no, and Mr. Thomas asked him then if he knew of any reason, any dis- satisfaction why this would be going on and Mendel told him then that he did not know of anything definite but he thought there might be a couple of things. Q. Did he name them? A. Yes, he said one thing in particular was short time, and the other one was that he thought that some of our men thought that there was too big a dif- ference in the payroll in the preparation department compared with other de- partments. Q. Compared with what? A. Other departments in the plant. Q. The other departments are what? A. Dye house, finishing and put-up. Q. All right, go ahead, was there any further conversation? A. Mr. Thomas then proceeded to tell him that we were going to consolidate the shift that day but he was going to tell the employees about it at the beginning of shift time, which I think was 3:45. Mendel asked Mr. Thomas was it be- cause of his work and Mr. Thomas said no, it was a consolidation to get all synthetics on the first shift where we could handle them more efficiently and we can handle them with less personnel , and I remember that Mendel got up and left, that he seemed to be satisfied , and he told Mr. Thomas that he liked the plant and he liked the people and he never enjoyed working anywhere any more than he did at Delta. Q. Now he says, Lisenby says that on that occasion Mr. Thomas said to him, "We have got to break up this union effort , or union activity, how about helping us," and that Mendel says, "I can't on account of I was raised up with these boys," did any such conversation take place between Mr. Thomas and him? A. No, sir. Q. He says that you said to him, "We can't afford to have this union or a union, and after tonight there won't be any gray room, that is the only way we can break the union up," did you make that statement or anything of that sort? A. No, sir, I did not. In view of Thomas' then current investigation of "dissatisfaction" and union activities at the plant, the unique relationship between Thomas and Lisenby, and the appearances of witnesses as they testified herein, the Trial Examiner finds it difficult to believe that Thomas refrained from questioning Lisenby about union activities and from making some comments indicative of a relationship between the union activities and the layoff. It appears, and the Trial Examiner finds, that Thomas did on this occasion indicate that the layoff was traceable to the then current union activities . Although as noted hereinafter, the Trial Examiner believes that the evidence is not sufficient to establish that in fact the layoff was motivated by union activities, he nevertheless believes that on this occasion Lisenby was led to believe such was the situation. About 45 minutes after Lisenby left Thomas' office, Streeter assembled the second shift grey room employees and announced that "as of tonight there would be no second shift in the gray room," that all second shift grey room workers, except the 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD two senior male workers and the sewers (two female workers ) who were being transferred to the first shift, were laid off.'° Streeter indicated that the layoff resulted from installation of a new machine (which had recently been put in operation) and that by making these changes Respondent anticipated cutting "down on the mistakes." The employees were told that they would receive full pay for the shift but that they were free to leave the plant or to stay and finish the shift. According to Everett Moore and Mendel Lisenby, the following occurred shortly after the announcement about the layoff. As Moore was addressing a group of employees assembled near the time clock during a change of shifts and telling them about the layoff and that despite the layoff organizational efforts would continue,li Campbell Laney, a supervisor official, told Moore not to stand around talking to the third shift workers and to "go back out in the warehouse" and then (Laney) went to the office and Moore followed as far as the office doorway. While standing in the doorway, Moore overheard Laney state to some other supervisors in the office, "Watch Moore and Mendel [Lisenby], don't let them mingle with the third shift workers, when the third shift workers come in send them on out in the plant. It is all right if they talk to the girls." Moore told Lisenby what he (Moore) had overheard. Lisenby then went to the office and asked Laney, "What is the meaning of this keeping Everett [Moore] and I away from the third shift workers?" and Laney said he did not mean any reflection on Lisenby and told Lisenby to forget it. Laney testified that he observed Moore addressing "a group of men ganged up around the time clock, at least a dozen" and told Moore he (Laney) "did not care what he was talking about, union or whatever it was, that he was holding up . . work and . . . creating a disturbance with these men, and that is not in the least a good company practice and to break it up and go on to his work." Laney further testified that he (Laney) then went to the office and told the supervisor coming on the third shift "that these boys were creating a disturbance out there by the clock and to go out there and tell them to knock the clock in and go into the plant and start working so we would not have that kind of disturbance." Laney further testified that shortly thereafter Lisenby complained about being associated with this "crowd" and that he (Laney) told Lisenby he (Laney) was sorry he had used Lisenby's name, he "lust had a idea that he [Lisenby] was out there with Everett Moore." Counsel for the General Counsel seems to contend that this action was violative of the Act, apparently on the theory that it was an attempt to prohibit union sympathizers from associating with other workers. The Trial Examiner does not agree and believes and finds that this conduct by Laney was not violative of the Act. Wilson Kimery, a second shift dye department employee, testified that on January 30, and shortly after his wife was told that she was being transferred to the first shift as a sewing machine operator in the grey room,12 he (Wilson Kimery) conferred with his supervisor, Fred Martin, and requested that he -(Wilson Kimery) also be transferred to the first shift since his wife was being transferred to that shift and it would be inconvenient for them to work separate shifts. Wilson Kimery further testified that on this occasion he told Martin "that I had been approached by several men in the plant asking me about the union and that I would like to get his [Martin's] advice concerning the union" and that Martin then took him to the personnel office where the following occurred. "Mr. Martin then stated to Mr. Thomas [personnel director] what I had told him, and Mr. Martin then stated that my chances of going on the first shift with priority, that men on the shift that had priority would be eligible to be transferred to the first shift, and that he would not make any promises as to being transferred [that the chance of going on the first shift depended on seniority]. And then Mr. Thomas stated that concerning the Union, that Delta could not say they would fire me if I did join the union, or they could not offer me a higher job such as Mr. Martin's job if I did not join." When asked, "Now was the subject of Hell mentioned at that time?" Kimery replied, "Mr. Thomas stated that Delta did not want the union and that Hell would freeze over before the union would come in that plant." When asked to "tell the rest of the conversation?" Kimery answered, "Well, Mr. Martin then asked me if I would tell him who the Ii Hugh Mendel Lisenby, Eveiett Moore, Franklin Butler, Woodrow Roscoe, and Theo- dore W Parrott were thus informed of their layoff Moore and Lisenby returned to Re- spondent's employ on March 30, 1953 Butler returned on February 26, 1953. Roscoe returned on April 2, 1953, and Parrott has not returned. 11 This was the first time Moore had addressed a "bunch of employees" (several) although he had on other occasions stopped employees passing by and "passed on few words with them " 12 Kay Kimery had been a sewing machine operator on the second shift in the room. DELTA FINISHING COMPANY 673 several guys were that approached me and I said, `No,' and Mr. Thomas said, `Well, we probably know them, the ones anyway, including the ones that have already gone.", On or about March 12, 1953, Kimery executed an affidavit purporting to cover the conversation in Thomas' office (noted above). In that affidavit, Kimery stated: I told them why I was there. They-either Martin or Thomas-told me that my chance of going on the first shift depended on new hires and my seniority. (Those with top seniority on a shift would be entitled to change, when openings on another shift were available.) I mentioned that several persons had come to me asking what I thought about the union. (I didn't name names.) I brought this up because I knew nothing about unions and thought I'd get some advice. M. Thomas said management couldn't say anything about the union, couldn't tell me to join or not to join; said he couldn't offer me any reward or higher jobs if I didn't join and couldn't tell me he'd fire me if I did loin. When confronted with this affidavit Kimery testified that Thomas made the state- ments set forth in the affidavit (noted above). It is noted that in this affidavit Kimery made no mention of Thomas saying "Hell would freeze over" before Delta would have a union. Kimery testified the failure to include this matter in this affidavit came about by the examiner (who took the affidavit) interrupting his (Kimery's) account of what occurred to write and by the examiner's failure to "come back [on the occasion of the taking of this affidavit] to ask me again." Kimery further testified that at a later date the examiner again interviewed him and that on this occasion he (Kimery) signed a statement to the effect that Thomas had said "Hell would freeze" before Delta would have a union. This second statement is not a part of the record in this matter. Fred Martin testified that Kimery asked him (Martin) for advice about joining the Union, that he (Martin) told Kimery he could "not give him that advice" but "I would take him to Mr. Thomas." Martin further testified that in Thomas' office "Kimery asked him the same thing he did me, if it was the right to do, etc.," and that "Mr. Thomas told him he could not advise him whether or not to, he was not in position to do so." Martin testified he did not "remember the whole conversa- tioli" but he denied that Thomas asked him who had approached him and denied that Thomas said, "Well, probably I know [I know the names of the individuals that had approached Kimery about the union] including the ones that have already gone out of here." Martin was not interrogated concerning any statement about "Hell freezing." Thomas testified that he told Kimery he could not advise him about joining or not joining the Union, that he told Kimery, "Our position was restricted in what we could say to a man who was considering such a move," and that "I [Thomas] explained to him that we could not offer him either a reward or threat or reward for not joining, or threaten him for joining, that actually we did not want to be organized because of the disrupting influences to come in during an organization, and that I personally felt that before the employees that we had in Delta out there would re- spond to organization or would get organized, that, to use the expression which he quoted me, `Hell would freeze over,' that I did not think we had any type of em- ployees which would respond to organizational pressure. I further told Mr. Kimery that what he chose to do about it was his own business, that what he did about it was his business and not ours, that the only thing I was interested in and the only thing we were interested in so far as the time spent with us at the plant was that he did not let whatever decision he took interfere with his work or the work of others. That is, to the best of my memory, about our conversation." Thomas denied that he (Thomas) stated that he "probably knew who they were [the names of the individuals who had approached Kimery about the union] including those who had already gone" and denied that he (Thomas) or Martin asked Kimery "who had ap- proached him about the union." On the basis of observations of witnesses, and the entire record herein, the Trial Examiner credits the testimony of Thomas and Martin, rather than that of Kimery, with respect to this matter. After the announcement about the layoff (and on the same date) James Ingram, operator of a motor lift (a lift used to pick up packages) engaged primarily in sup- plying materials to the second shift grey room workers, asked his supervisor, John Thompson, what was going to happen to him (Ingram) Thompson told Ingram he (Thompson) did not know but he would find out. On Monday, February 2, 1953, Thompson told Ingram that in view of the layoff there was nothing for Ingram to do and handed him a check and said he "hated" to see Ingram go but he had to go. Counsel for the General Counsel conceded at the hearing that "the first knowl- 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD edge or intimation that the Respondent had of any kind of union connection on the part of Mr. Ingram was upon the filing of charges against the Company " 13 Ingram testified that "once a week" thereafter he sought reemployment and that about the first of April 1953 he was reemployed . He further testified that on this occasion (when he was reemployed ) Thomas told him that Respondent was not aware of his (Ingram's) union connection at the time of the layoff , that he (Ingram) could wear a union button and go to union meetings but "there will be no [union] literature laying around the plant" and that it was against company policy to talk union in the mill and if he ( Ingram ) talked union in the mill he ( Ingram) would be "fired." Thomas did not testify with respect to this conversation . This record reveals that talk concerning other matters not directly associated with Respondent's business was permitted Richard McDougal , a first shift grey room worker , testified that on or about Feb- ruary 2, 1953 , Jack Streeter (preparation's department head ) asked him ( McDougal) if he knew anything about the Union and if he knew he was on the "prospect list " McDougal further testified his memory concerning this conversation was not clear, that Streeter also told him that what he did about the Union was of no concern to him (Streeter ) and that the "prospect list" referred to could have been a list of those entitled to increases in pay which were made effective a week or two after this con- versation. Streeter did not testify concerning this conversation . The Trial Exam- iner believes and finds that McDougal's testimony , standing alone or in the light of entire record herein , is inadequate to support a finding adverse to Respondent. James Jones, a laboratory technician , testified that on February 2, 1953, he (Jones) called upon Carlo Baker , chief chemist , and told him (Baker ) that he (Jones) understood that his job was in danger if he did not quit associating with Everett Moore, that he (Jones ) did not have anything to do with the Union and did not want to get "railroaded out" and that Baker said , "he did not know anything about it." Jones further testified that about 10 minutes later Baker asked him (Jones) to go "up to Mr. Thomas' office with me and tell him what you told me" and that they went to Thomas' office. Concerning the conversation in Thomas ' office, Jones testified: Q. What occurred then9 A. We went in and Carlo and I, and sat down and Mr. Thomas told me that he could not offer me any reward or he could not throw any threats at me, and I told Mr. Thomas that I understood that my job was in danger if I did not quit associating with Everett Moore, and that I did not know anything about the union talk that was going on, and I did not want to get railroaded out for something I did not do , and I said, besides I stay in Cheraw now and Everett stays at McFarland and I don't see so much of him, and he said, "I understand that you have been burning the road up between Cheraw and McFarlane." Q. What else was said? A. Mr. Baker kept repeating over and over that, "Jimmie, if you have any- thing on your chest, now is the time to get it off," and I told him that I did not have anything on my chest , that I had told him all I knew. So Mr. Thomas said he could not talk about the union to me, he said it was against the law and rules, but that Delta would be, said that Hell would be five foot thick in ice before Delta was organized. Baker testified that Jones came to him ( Baker) and stated that he (Jones ) thought his job was in danger because of his associating with Everett Moore and Moore's connection with the Union , that he (Baker) told Jones that he (Baker) had no interest in whether Jones had anything to do with the Union and did not care to discuss it , and that he (Baker ) told Jones that as long as he (Jones ) did his work well, he had "nothing to worry about ." Baker testified that Jones was not satisfied with his ( Baker's ) assurances and requested that he (Jones ) be given an opportunity to talk to Personnel Director Thomas and that he t(Baker ) then arranged an interview with Thomas Concerning the conversation in Thomas' office, Baker testified: Q. Now what was the conversation there9 A. I told Mr Thomas what he had told me, and Mr Thomas gave him practically the same answer that I had, and after that Jimmie did not seem to have anything to say, and I told him, "Well now , you asked for this meeting, 13 The original charge was filed February 5, 1953 . The fist amended charge , adding Jimmy Jones as one of those allegedly discriminated against , was filed April 8, 1953, and the second amended charge, adding Woodrow Roscoe as one of those allegedly unlawfully discharged , was filed November 13, 1953 Respondent's motion to dismiss with respect to Roscoe on the ground that the charge was not filed timely is hereby denied. DELTA FINISHING COMPANY 675 take advantage of it, or if you are through we will go," and that was about all he had to say. Q. Well, he testified in this case that Mr. Thomas said to him somewhere during that conversation when the subject of the union came up, that Hell would freeze over five feet thick in ice before the Delta plant would be organ- ized, do you remember anything along that line? A. I remember the occasion he is referring to. I believe Mr. Thomas said that Hell would be five feet thick in ice before the people at Delta would let themselves be organized. Thomas corroborated Baker's version of this incident and testified that he said, inter alia, "insofar as the union organization there , that I thought with the people we had at Delta, the conditions which existed at Delta, that I thought Hell would be five feet thick in ice before they allowed themselves to be getting organized." On the basis of observations of witnesses , and the entire record herein , the Trial Examiner credits Baker's and Thomas' version of this meeting and finds that the credible evidence concerning this incident does not warrant a finding that Respondent thereby violated the Act. Burris Sellers testified that a "week or less " after the layoff (after January 30, 1953 ) he saw a notice on the plant bulletin board stating that employees "were not supposed to gather up or do any talking out of our own department " and were not supposed to "give out any pamphlets, leaflets or anything whatsoever at all at any time." Hollis Spease, a second shift laboratory technician , testified that following the layoff ( about a week later ) notices were posted saying that "any employee that was caught soliciting other employees on the company time or distributing literature or- interfering with the work of others would be subject to disciplinary action that would probably result in discharge." The written notices were not made a part of the record herein , and this testimony by Sellers and Spease is not disputed. Vernon Gaskins, floorman in the finishing department , testified that at a super- visors' meeting on February 2, 1953, Thomas (personnel director) said: Maybe as we all knew, that there was a labor organization trying to come in the plant and he said some of the boys were not there and some would be - converted, and he said that the company had rather deal directly with the workers than deal with the union, and that there would be no literature, union official literature brought in the plant, and that nobody would be allowed to, use the private roads around to the plant unofficially except workers coming in at the gate. Counsel for the General Counsel seeks a finding that Thomas' statement that "some of the boys were not there and some would be converted" referred to and is to be considered in determining whether the layoff was unlawful . It seems more reasonable to believe that this statement referred to the fact that some employees had not yet joined the Union and that some workers would thereafter join. The Trial Examiner believes the interpretation sought by counsel for the General Counsel unwarranted. It is not within the province of an employer to promulgate and enforce a rule prohibiting union solicitation by an employee outside of working hours , although on company property . Such a rule must be presumed to be an unreasonable im- pediment to self-organization and unlawful in the absence of evidence that special circumstances make the rule necessary in order to maintain production or discipline. (See N. L. R. B. v. Monarch Machine Tool Co., 210 F. 2d 183 , 187, and cases cited therein.) There is no evidence herein of such special circumstances . To the contrary, the evidence reveals a discriminatory application of a "no solicitation" rule or policy. Burris Sellers testified that, while he (Sellers ) was a supervisor and on one occasion "three weeks or maybe a month after" January 30, 1953 , when he and his immediate superior (Woodrow Strauderman ) were discussing matters concerning their work, Strauderman told him that he (Strauderman ) had been told by the office to fire a man (whom Strauderman did not identify although requested by Sellers to, do so ) because he was connected with the Union , that Strauderman said he had told the office he had no reason to fire the man, and that he (Strauderman) said he had been told to find some reason . Strauderman denied that such a conversation occurred. Since the Trial Examiner believes that such a conversation is not violative of the Act, and of little significance in evaluating the issues herein, he is not resolving the credibility issue with respect to this matter. Sellers further testified that about a month after January 30, 1953 , while he (Sellers), employee Nelson Threadgill , and Ed Mercer ( allegedly an employee for whose statements Respondent is responsible ) were en route to a fishing area, he and 344056-55-vol. 111-44 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Threadgill started "talking about the boys that were fired " and Mercer told them not to talk about the Union, that if they did he ( Mercer ) would have to report it and they would be automatically fired . Mercer and Threadgill denied that any refer- ence was made to the Union and denied that the statement attributed to Mercer was made. They testified that they recalled an occasion when these three individuals were riding in an automobile and Sellers and Threadgill started talking about the Union, that on this occasion Mercer remarked that he was not in favor of the Union and did not want to hear any more about it, and that thereafter no mention was made of the subject matter. Sellers' testimony with respect to this matter is not persuasive and on the basis of the entire record herein the Trial Examiner is not convinced that Mercer made the statements attributed to him by Sellers. Immediately after the announcement about the layoff , Theodore Parrott went to Thomas' office and asked what was going to be done about his back injury which occurred on or about September 12, 1952. Thomas then voided Parrott's layoff and told him he (Thomas ) would notify the insurance company and have him (Par- rott ) placed on compensation, which he did. Thereafter, on or about June 6, 1953, the parties executed an agreement settling claims arising out of this injury. This settlement was premised , in part, upon Parrott's contention that he suffered a continuing disability . On several occasions after January 30, 1953, Parrott ap- plied for reemployment but he was not reemployed . Parrott testified that on one such occasion (and while his claim for back injuries was pending) he was told by Belton Laney , personnel officer, "I would not come back with any threat over my head." Apparently counsel for the General Counsel believes that an inference should be made that the "threat" referred to Parrott's union activities. Parrott was not es- pecially active on behalf of the Union and no such inference is warranted. Fur- thermore, Thomas testified, without contradiction, that he told Parrott on several occasions that because of his (Parrott's ) back injury Respondent would only consider him for limited work, that such work was not available , but that he (Parrott) would be considered for such an opening when one occurred . There is no evidence that such an opening occurred. The Trial Examiner believes that the allegations of the complaint to the effect that Respondent discriminated against Theodore W. Par- rott should be dismissed. Conclusions Regarding the Layoff The evidence reveals that Respondent was opposed to the Union and in some in- stances exceeded the permissible in indicating its hostility thereto. Nevertheless, the Trial Examiner is not convinced that the consolidation of shifts and consequent layoffs were because of this hostility and opposition rather than because of eco- nomic considerations. As noted above, the evidence reveals that the decision to con- ,solidate and thereby discontinue the second shift grey room operations and the effec- tive date for such move were determined prior to the advent of the Union. The evidence does not establish that these decisions were altered in any way thereafter.14 To the contrary, the evidence reveals that these decisions remained unchanged and that on one occasion, at least, Personnel Director Thomas used them in an unlawful manner to threaten economic consequences for union activities (reference is made to the conversation with Lisenby on the date of the layoff). B. Discharge of James Jones During the week ending March 28, 1953, Respondent was processing some cloth which it desired to send out from the plant not later than Friday, March 27. On Wednesday, March 25, this cloth arrived in the laboratory to be tested by the first shift workers. Mildred Quick , the employee on the first shift responsible for tests concerning tensile strength , breakage, light fastness, and crocking , made these tests. The following morning Quick gave the cloth to James Jones, the employee on the first shift responsible for shrinkage tests, and told him to run the shrinkage test "Counsel for the General Counsel contended at the hearing that grey room workers performed an unusual amount of overtime work and that after the layoff , employees other than first shift regular grey room workers performed some of the work formerly done by the second shift grey room workers and that, accordingly , the second shift grey room operations continued in a disguised form. The record contains some evidence indicating that some employees other than regular first shift grey room workers did, on occasion, do some of the work normally performed by the laid -off employees and evidence concern- ing overtime work . However, the evidence with respet to work by others than grey room workers is sparse and not worthy of further comment The evidence adduced is insufficient to warrant a finding favorable to counsel for the General Counsel. DELTA FINISHING COMPANY 677 (a test which takes about an hour). Jones said he did not have time to run the test and placed the cloth on a filing cabinet. The next morning, Friday, Quick asked Jones, if he had run the shrinkage test and Jones replied, "No, do it yourself, you are supposed to do it." Quick protested that such was not her responsibility and went about doing other work. Jones did not run the shrinkage test. On Monday, March 30, Plant Manager Clyde Moore "got a call from New York wanting to know where the sample [the cloth involved herein] was, it had not been received." Moore called Superintendent Kelly Traynham with respect to this matter. Traynham found out that the cloth was being held up because the shrink- age test had not been made and called Carlo Baker, chief chemist in charge of the laboratory where tests are made, and told Baker "to find out what was going on." Baker asked Quick about this matter. Quick told Baker the circumstances con- cerning this cloth (outlined above). Baker then went to Jones. The evidence concerning the conversation between Baker and Jones is conflicting. According to Jones, Baker asked about the tests and he (Jones) said he did not know why the tests had not been run, that he (Jones) had "not ever seen" this cloth before, that the cloth was marked for testing and the test should have been run by the person who marked the cloth (Hollis Spease, the laboratory technician on the second shift responsible for shrinkage tests). Jones testified Baker then said, "Well, I was up in Mr. Moore's office and he has been chewing me out about this and they [the tests] should have been run, and he [Baker] walked off." Jones testified that about 2 hours later Baker told him that he (Baker) had been told to discharge him (Jones) because of his (Jones') failure to run the test and that when he (Jones) protested that he (Jones) was getting a "dirty deal," Baker said, "Well, Jimmie I tried to give you some good advice but you would not listen." 15 Jones further testi- fied that he (Jones) commented that Hollis Spease had thrown away cloth to be tested without being discharged for such conduct 16 and Baker said, "The best thing you better do is go ahead and get another job and forget it." Jones also testified that Baker disclaimed any responsibility for discharging him (Jones) and offered to give him (Jones) a good recommendation and that Baker thereafter refused to give him the recommendation. According to Baker, when he asked Jones why he had not run the shrinkage test Jones responded "he did not have time, just put it off" and when told (by Baker) that it was his (Jones') responsibility to run the tests, answered, "Well, I don't see why I am supposed to be responsible, I don't intend to be responsible." Baker testified that immediately after this conversation he (Baker) discharged Jones. Baker testified he told Jones that he (Baker) "would give him the best recommendation I could under the circumstances" and that thereafter Jones asked for a recommendation to carry with him and he (Baker) told Jones he (Baker) would not give him one but that upon inquiry from a concern considering employing him (Jones) he would give the best recommendation he "could under the circumstances." Baker testified that he (Baker) made the determination to fire Jones, that he did so when Jones told him that "it was not his responsibility to do shrinkage tests and that he did not intend to do it" and that he did not disclaim (to Jones) responsibility for the discharge. The corroborating evidence, especially the testimony of Hollis Spease during cross- 'examination, gives more support to Baker's version than it does to Jones' and indicates that Jones' discharge is traceable to the failure to run the test in question. The Trial Examiner believes and finds the evidence adduced insufficient to support -the allegations of the complaint with respect to the discharge of Jones. C. Reemployment of Moore and Lisenby As noted above, Everett Moore and Lisenby, with others, were laid off on January 30, 1953, when the second shift grey room operations were discontinued. Moore and Lisenby were reemployed on March 30, 1953, as warehouse clerks at the ware- house in Bennettsville, South Carolina, at $1.20 per hour (the then current rate for regular grey room workers). They quit during October 1953. Between January 30 and March 30 Moore and Lisenby constantly sought reem- ployment. The evidence reveals that between these two dates only two jobs com- parable in pay to that received by Moore and Lisenby were available.17 One of "As noted above Jones and Baker had a conversation on or about February 2, 1953, concerning union activities. 16 During his training period Spease threw away some cloth (not for customer use) that he was supposed to test and was reprimanded for such conduct and cautioned not to do it again 11 Between January 30, 1953, and November 16, 1953 the following persons were hired : Hubert Gaddy, Charles Rivers, Ray Davidson, Ray Cassidy, David Blackwell, Sam Chap- 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these jobs was given to Frank Butler, another employee laid off on January 30, and there is no contention that Moore or Lisenby, instead of Butler, should have been given this job. Sam Chapman got the other job. Chapman was employed March 16, 1953, as an experienced mercerizer helper. Neither Moore nor Lisenby was qualified for this job. Also as noted in footnote 10 Roscoe was reemployed April 2, 1953. There is no contention herein that Moore or Lisenby should have been given this job. A few days prior to March 30, Moore and Lisenby were offered, and they accepted, jobs at the warehouse in Bennettsville , then being reactivated . On or about March- 30 they were asked by Personnel Officer Belton Laney to sign certain forms. They refused, contending they were not "new hires" but laid-off employees and the forms would "mess up" their seniority Laney remarked, "This is too big for me" and called Personnel Director Thomas. Thomas told Moore and Lisenby their seniority would not be effected and stated he would mark on the form that they had been temporarily laid off and would also set forth, by dates, their employment history. Moore and Lisenby then stated they wanted to "get some advice" and left Respondent 's place of business . They went to the union headquarters . Upon their return they informed Thomas they would accept the job at the warehouse on a temporary basis but that it was "too far from home" and they wanted their "old jobs back " 18 Counsel for the General Counsel asserts that Moore and Lisenby were given jobs in the warehouse , and thereby removed from the plant and from contact with other employees interested in union activities , because of their own union activities The Trial Examiner believes and finds the evidence adduced insufficient to support this assertion. At the warehouse Moore and Lisenby were required to perform manual labor in connection with the loading and unloading and storage of materials , to sweep floors and to cut grass . On occasion they also helped "check the books and locate the cloth to be shipped out." Except for the checking of books and locating of- cloth, their work assignments were not different than the work assignments of other warehouse clerks and the contention of Counsel for the General Counsel to the contrary is not borne out by the evidence adduced. In April or May 1953, a machine used to lift heavy items was removed for repairs. It was not thereafter returned to the Bennettsville warehouse . Counsel for the General Counsel contends that this machine was taken away from the warehouse as a means of disciplining Moore and Lisenby because of their union activities The Trial Examiner has some suspicions that this might be true. But suspicion is not- proof and the evidence adduced does not support the contention During April or May 1953, Moore volunteered to Campbell Laney, then a super- visor at the warehouse, that he (Moore ) was "for organized labor" and that he- (Moore) was "going to talk about it when I get ready ." Laney told Moore, "Well, if you talk it on the job I will have to fire you. You can talk it at your breaks at lunch hour as much as you like but , if you talk it on the job you will be hindering- other men working unless you talk to yourself and I don't think you could do much talking doing that." Shortly after this conversation Moore and Lisenby started wearing "union badges." At that time Laney read to them a posted rule against "talking on the job and hindering other men from working" and , when Moore stated he (Moore ) was "going to still talk union talk" as long as he could get someone to listen, Laney indicated he (Laney) intended to enforce the rule and man and Gus Kelly Gaddy had formerly worked for Respondent and was reemployed as a section supeiiisor in the dye department on February 25, 1953 None of the laid-off employees was qualified for this job Rivers was eniployed April 13, 1953, as a learner in the pieparation department on the third shift at a rate of $1 05 The employees laid off were paid :l1 15 an hour Davidson had formerly woiked for Respondent and was reem- ployed as a beck helper on the second shift on March 11 , 1953 None of the laid-off eni-- ployees was qualified for this job Cassidy and Blackwell were employed at the end of January 1953, at $1 05 an hour and assigned to the third-shift preparation department as utility men Chapman was eniployed March 16 , 1953, as an experienced meicerizei helpei al $ 1 15 an hour None of the laid-oft employees was qualified for this job Kelly was employed either October 14 of November 16, 1953, as a utility man on the third shift in the pieparation depaitment at $1 05 an hour Also , it was stipulated that on or about May 5, 1953, Bogan Morus and Ray Teal were transfeired from the third shift to the first shift in the preparation depaitment, and that they thereafter worked full time in the grey room zs Thomas testified that Moore and Lisenby never made known to him that they "wanted back in the gray room " and denied that on this occasion they stated they considered the warehouse jobs unsatisfactory and "wanted back in the gray room " The Trial Examiner finds the facts to be as stated above. DELTA FINISHING COMPANY 679 -see that employees were not hindered in the performance of their duties. On another occasion Laney cautioned Moore not to hinder men working by talking to them about the Union. Lisenby testified that talking about other matters was not prohibited. Apparently Counsel for the General Counsel contends that Laney's cautioning of Moore was a discriminatory application of a no-talking-on-the-job rule and was violative of the Act. While there is some evidence to this effect, the entire record reveals that Laney's cautions were in the interest of production rather than in prohibiting union activities and the Trial Examiner finds that this conduct by Laney was not violative of the Act. During April or May, Moore and Lisenby requested, from Campbell Laney, permission to go to Cheraw, South Carolina (a community about 2 miles from the plant and it was necessary to pass the plant to get to Cheraw), in connection with unemployment insurance. At the same time Moore requested permission to visit the plant to see Respondent's nurse about a blister on his hand, to see Personnel Officer Belton Laney about some insurance and, while at the plant, to visit the plant canteen. Arrangements were made for Moore and Lisenby to take care of their unemployment insurance matters at the unemployment office in Bennettsville. The nurse was coming to Bennettsville for a meeting and Campbell Laney "got her to bring her equipment and stop by and treat" Moore's blister. On another occasion the nurse came from the plant to the warehouse to treat an employee named Kirkley. On still another occasion a warehouse employee named McQueen asked, and was granted, permission to visit the nurse, about an injury at the plant. Moore proposed to visit the plant during his (Moore's) lunch period and Campbell Laney opposed this because he (Laney) thought it not practical to travel this 20 miles (round trip warehouse to plant) and transact the business proposed (see Belton Laney and eat lunch) in a 30-minute period. Arrangements were made for Moore to see Personnel Officer Laney at the plant after his (Moore's) working hours, and he was released from work before the end of his shift that day. Counsel for the General Counsel contends this treatment of Moore and Lisenby was another attempt by Respondent to isolate these employees from contact with other employees interested in union activities The Trial Examiner believes and finds the evidence insufficient to support this contention. As noted above, on May 5, 1953, Morris and Teal were transferred from the third shift preparations department to the first shift preparations department and thereafter worked in the grey room. Also, as noted above, at this time there were outstanding requests from Moore and Lisenby for grey room work.19 Morris had more seniority than either Moore or Lisenby. Apparently Teal had less. Respond- ent offered a number of reasons for not giving this grey room work to Moore and/or Lisenby instead of Teal. While the Trial Examiner is not satisfied with these reasons, the Trial Examiner also is not convinced that the evidence adduced (outlined in this report) establishes that Moore and/or Lisenby failed to get this work because of their union activities. The Trial Examiner has doubts about this matter (as to whether an inference should be drawn that Moore and/or Lisenby failed to get this work because of their union activities). In view of the entire record, and the obligation of Counsel for the General Counsel to carry the burden of proof, the Trial Examiner resolves these doubts in favor of Respondent and finds such an inference not warranted. Counsel for the General Counsel contends that Moore's and Lisenby's quitting, in October, was a matter which Respondent anticipated and forced upon them and, apparently, that their quitting was something in the nature of constructive discharge. In view of the foregoing and the entire record herein the Trial Examiner rejects this contention. In view of the foregoing the Trial Examiner finds and concludes that in reemploy- ing Moore and Lisenby Respondent did not discriminate with regard to hire or tenure of employment or terms or conditions of employment to discourage activities on behalf of a labor organization or to discourage lawful concerted activities. ULTIMATE FINDINGS AND CONCLUSIONS In view of the foregoing, and the entire record herein, the Trial Examiner finds and concludes: (1) Respondent is engaged in commerce within the meaning of the National Labor Relations Act, as amended, herein called the Act. (2) United Textile Workers of America, AFL, is a labor organization within the meaning of the Act. "There is conflicting evidence as to whether Moore and Lisenby on several occasions ,expressed desires for grey room work instead of warehouse work. The Trial Examiner finds that they did. 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (3) Respondent interfered with , restrained, and coerced employees in the exer- cise of rights guaranteed in Section 7 of the Act and thus engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act by: (a) Interrogating employees concerning union activities ; ( b) using the anticipated layoff as a means of threatening and alluring employees to force abandonment of union activities; (c) prohibiting talk concerning union activities and distribution of union literature on company property during nonworking time; (d) prohibiting talk concerning union activities on company property during working time while permitting talk concerning other matters not directly associated with Respondent's business. (4) The aforesaid unfair labor practices occurring in connection with the op- erations of Respondent's business, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. (5) The evidence adduced does not establish that Respondent in changing the method of operation was motivated by desires to interfere with the right of its employees to organize and does not establish that in carrying out its change of method of operation Respondent discriminated against Franklin Butler, Hugh Mendel Lisenby, Woodrow Roscoe, Theodore W. Parrott, Everett Moore, and/or James H. Ingram because of their union or concerted activities. (6) The evidence adduced does not establish that Respondent discharged James Jones because of his union or concerted activities. (7) The evidence adduced does not establish that in reemploying Everett Moore and Hugh Mendel Lisenby, Respondent discriminated in regard to hire or tenure of employment or terms or conditions of employment to discourage activities on behalf of a labor organization or to discourage lawful concerted activities. [Recommendations omitted from publication ] Intermediate Report STATEMENT OF THE CASE Upon charges duly filed by Textile Workers Union of America, CIO, herein called the Union, on February 16 and April 6, 1954, the General Counsel of the National Labor Relations Board, by the Regional Director of the Eleventh Region (Winston- Salem, North Carolina), issued a complaint dated April 7, 1954, against Delta Finish- ing Company (Division of J. P. Stevens & Co., Inc.-Plant No. 3) herein called the Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (3), and (4) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charges , complaint, and notice of hearing were duly served upon Respondent and the Union. With respect to the unfair labor practices, the complaint alleged that Respondent: (1) By its agent, Garland Street, on or about March 29, 1954, interrogated its em- ployees concerning their union membership , activities, and desires, threatened to dis- charge its employees if they joined or retained membership in, or engaged in activities on behalf of, the Union, and created the impression to its employees of surveillance of their union meetings and activities ; and (2 ) on or about February 11, 1954, dis- charged its employee, Burris J. Sellers, and thereafter refused to reinstate him because he had given testimony under the Act on behalf of, and at the request of, Counsel for the General Counsel at a hearing in Case No. 11-CA-558 between January 11 and 16, 1954, because of his membership in, and activities on behalf of , the Union, and because he engaged in concerted activities with other employees for the purposes of collective bargaining and other mutual aid and protection. Thereafter, Respondent duly filed an answer, admitting that it is now, and has been at all material times herein, a Delaware corporation maintaining its principal office and place of business at Wallace, South Carolina, engaged in the finishing of cotton and other goods; admitting that within the past 12 months it has at its plant in Wal- lace, processed goods and materials having a value of more than $500,000, more than 90 percent of which was shipped to its plant in Wallace from points outside the State of South Carolina and more than 90 percent of which was shipped from its plant at Wallace to points outside the State of South Carolina; and admitting that on or about February 11, 1954, it discharged Sellers, but denying that it had engaged in the al- leged unfair labor practices. Pursuant to notice, a hearing was held on May 18, 19, 20, and 21, 1954, at Bennettsville , South Carolina, before me, after I denied Respond- ent's motion for a continuance . The General Counsel, the Respondent , and the Union were represented by Counsel. Full opportunity to be heard , to examine and cross-examine witnesses, and to introduce evidence bearing on the issues , as well as to argue orally and file briefs, was afforded all parties. DELTA FINISHING COMPANY 681 Upon the entire record in this case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT From Respondent's admissions I find it 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 em- ployees of Respondent to membership. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The setting The record discloses, without substantial disagreement, that Sellers testified in January 1954, at the call of the General Counsel during a hearing in a case entitled Delta Finishing Company (Division of J. P. Stevens & Co., Inc.-Plant No. 3) and United Textile Workers of America, AFL, Case No. 11-CA-558, wherein the same plant and management as those, but a different Charging Party from that in the instant case, were involved. Sellers, a dyehouse employee, who entered Re- spondent's employ in April 1952, returned to his job as a dye beck operator after several days' attendance at that hearing, on January 18, 1954, and first began to wear a union button on the morning of that day. He continued to wear it until he was discharged 24 days later on February 11, 1954. During this period he went to about six union meetings held at the home of Mr. and Mrs H. C Carter, both employees, which these 3 and 2 other employees, Earl Griggs, and Hollis Spease attended. So far as appears these five were the only employees who displayed union buttons during the period involved in this case. Forty-six days after Sellers had been discharged, Garland Street, admittedly a supervisor within the meaning of the Act, during a late evening automobile ride which he requested H. C Carter to give him on March 29, 1954, asked Carter how he ever got mixed up in the Union, how he thought he would benefit by the Union if the plant were organized, stated that Carter was doing himself more harm than good by trying to get the plant organ- ized, that John R. Thomas (Respondent's director of personnel) had known about every meeting that had been held at Carter's house, and inquired if Carter was aware of Thomas' knowledge. In late 1953 or around January 1954, Plant Manager Clyde T. Moore informed Thomas that he did not feel that the coming of a union to the plant would be good for productivity and morale, that the Company did not want a union in the plant or any disruption of production due thereto, stated that he expected Thomas and other people to make all lawful effort to discourage or keep out union activities, and told Thomas to find out what he could about such activities. B. Alleged 8 (a) (1) conduct Although it is to be observed that the only allegations of interference, restraint, or coercion, independent of Sellers' discharge, are interrogation, a threat of dis- charge, and the creation of the impression of surveillance on or about March 29, 1954, the General Counsel presented additional evidence concerning various events and situations for the purpose of attempting to show Respondent's hostility toward, and discrimination against, the union supporters and its awareness of Sellers' (and Car- ters', Griggs', and Spease's) union activities. In general this evidence, which I find to represent the facts, was to the effect that: (1) On January 18, 1954, while waiting to have an order for dye filled in the drug room, Sellers was drinking from a water fountain located near the stairway, as had been his custom for 6 or 7 months, when James A. Holder, the dyer on the first shift, after consulting with Keith Parker, the drug room supervisor, both supervisors within the meaning of the Act, told him (Sellers) that he did not want to catch him drinking there again. Later the same day Vernon F. Rivers, superintendent of dyeing, a supervisor within the meaning of the Act, told Sellers he could drink at that fountain anytime he wanted to when his work took him in that vicinity.' (2) On Wednesday, January 27, 1954, Tom Wal- i Respondent presented evidence that on January 18, 1954, Holder questioned the ac- curacy of Sellers' notation on the master card of cloth tangles and that Sellers' reply was, "Mr. Holder, I think it is only fair to warn you that I am putting down everything you say in a little black book and I will take you to court " Respondent' s apparent purpose in referring to this incident is to reveal what Thomas called Sellers' "chip-on-the-shoulder" attitude The General Counsel argues this Is but another indication of Respondent' s anti- union animus and its attempt to entrap, and find some pretense for discharging, an em- ployee unusually active in union affairs. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lace, foreman over the dye becks, a supervisor within the meaning of the Act, gave Sellers permission to visit a dentist for treatment of an infected tooth but requested him to return to work the same day if he felt up to it. Later that day, word reached the plant that Sellers' father had died and in attempting to locate Sellers , Thomas learned from Wallace that Sellers had gone to the dentist but was expected to return. Sellers did not return however and stayed out from work on account of his father's death until Monday, February 1, on the morning of which day Thomas called him into the personnel office and asked him why he did not come back after his dental treatment the previous Wednesday. Sellers informed Thomas that Wallace had given him permission to remain away if he did not feel like returning and, upon con- sultation with Wallace, Thomas stated he was under the misapprehension Sellers was absent without leave and thereupon signed his timecard . ( 3) On February 11, 1954, Sellers, not finding a truck in the dye house , went (as he and Griggs had previ- ously done under the observation of supervisors when there were no trucks in the dye house, and as Thomas admits was occasionally done ) to the finishing depart- ment to look for a truck where he noticed one standing under the mixing platform. The location was noisy and in reply to his request of the employee on the platform for permission to use the truck, the operator hollered that he could take the bucket. Jesse Turner Crawford, foreman of the first shift in the finishing department and a supervisor within the meaning of the Act, asked Sellers what he wanted and Craw- ford understood him to reply that he wanted a bucket. Instead of replying to the question which he apparently did not hear, as to who had sent him for a bucket, Sellers took the truck and went back toward the dyehouse . Crawford reported the incident to Rivers. Sellers was summoned into the dyehouse office where he in- formed Rivers, Wallace, and Crawford he had procured trucks from the finishing department before without permission or objection and was told by Rivers to return to his machine and that Sellers would hear from him later. After communication with Thomas, Rivers prepared a written warning that a repetition of Sellers' conduct would lead to his discharge , showed it to Sellers and requested him to sign it. Sellers refused to sign the paper on the ground it incorrectly asserted he was seeking a bucket whereas in reality he took a truck. Thereupon Rivers told Sellers to go home and come back when he decided to sign . Sellers then went to the personnel office and saw Thomas' assistant, Belton Laney , who pointed out that there was a notice on the bulletin board that permission to go from one department to another was re- quired. Sellers stated he had seen the notice but did not know that one had to have permission to go from another department to another in the course of duty. Upon being again requested to sign the written warning Sellers said the reference to a "bucket" was incorrect and Laney changed the word to "truck." Sellers however still declined to sign the corrected notice saying he could not sign anything until he got permission or word from the National Labor Relations Board . (4) On March 12, 1954, Thomas , in the presence of Laney, told the Carters that their attitudes had changed since they had started engaging in union activities , that the Company had certain legal rights , and that it was going to keep the Union out of the plant. (5) After the hearing in January 1954, Carter who worked in the put-up department visited his wife during her working time in the laboratory (as he had done without objection on previous occasions ) where he was told by one Baker, a supervisor within the meaning of the Act, that he had no business there and by one Kock , another supervisor within the meaning of the Act, that if he were caught in the laboratory again he would be fired. The following day one Cooper , a supervisor within the meaning of the Act , told Carter that from then on he would be kept in his own de- partment and Carter was relieved from that part of his job that had taken him from his put-up department into the warehouse , the preparation department, the finishing department, the laboratory , and the supply room. Thereafter, Monroe Hyatt, who never wore a union button, an employee who works in the dyehouse , continued, as he had done before , to visit his wife Odessa Hyatt who works in the put-up depart- ment; Jimmy Wright, an employee who works in the rayon department as a rayon lot changer, and David Chapman, an employee who works in the preparations de- partment, neither of whom wore union buttons , continued as they had before to visit Mrs. Chapman who works in the put-up department ; Henry F. Quick, who does not wear a union button, an employee who apparently works in the prepara- tion department , continued as he had done before to visit his wife Mildred Quick, who works in the laboratory ; and Dorothy Burr, an employee who works in the planning department, continued, as she had done before, to visit Consuella Hamilton, who works in the laboratory . (6) About 11 p m , on March 29, 1954, Thomas drove an automobile past the Carters' house 5 or 6 times, twice with the headlights off but the parking lights on , and after the last trip alighted from the car and stationed himself beside a building about 2 blocks from the Carters' residence. DELTA FINISHING COMPANY 683, C. Conclusions respecting 8 (a) (1) allegations We now revert to the actual allegations of independent interference, restraint, and' coercion. They are fundamentally based on Street's conduct, as already recounted, consisting of his asking Carter how he ever got mixed up in the Union, how he thought he would benefit by the Union, his stating that Carter was doing himself more harm than good by trying to get the plant organized, his telling Carter that Thomas had known about every meeting at his house, and his inquiring of Carter if he knew it. Do these inquiries and statements constitute unlawful interrogations concerning union membership, activities, and desires; unlawful threats to discharge employees if they should join or retain membership in, or engage in activities on behalf of, the Union; or the unlawful creation of the impression to employees of surveillance of their union meetings and activities, as alleged? It is the General Counsel's contention that, even standing alone and taken by it- self, Street's conduct is patently violative of the Section 8 (a) (1). Going further, the General Counsel argues to the effect that should there be any lingering doubt con- cerning the unlawfulness of what he terms Street's interrogations, threatening, and impression-creating, all obscurity must necessarily be dispelled in the shining light of the revealing, although not unlawful, manifestations on the part of Respondent of hostility toward the Union and its protagonists, and of discouragement of its sup- porters' activities and of discrimination against its members. Respondent makes the pointblank assertions that Street's inquiries of, and state- ments to, Carter have no legal import, prove nothing, and fail to support the allega- tion of threatening discharge, that asking an employee how he happens to be involved in a union or how he thinks it will benefit him is obviously not a violation of the labor law, and that to inform an employee that an employer knows about union meetings, especially when, as in this case everybody had been invited to attend them and the fact of the place and time of their being held is common knowledge, does not con- stitute the creation of the impression to employees of surveillance of their union meet- ings and activities. Respondent had the legal right to reason with its employees, to make known to them its opposition to the Union, to seek to induce them (as distinguished from coercively urging them) to refrain from associating themselves with it, and to dis- continue any union activities in which they may have engaged. It did not have the legal right interferingly to pry into their union connections and predilections or to threaten them with reprisals because of their union activities. The rather offhand inquiry made of Carter during an automobile ride in the stilly- night partook more of the nature of a friendly endeavour on the part of a minor supervisory official to reason with an employee in an effort to have him abandon his support of the Union than of a coercive attempt to invade any personal rights guar- anteed by the statute. Under other circumstances, none of which appear here, such, for example, as where systematic interrogation is indulged in or where there has been a discriminatory discharge, questions directed to employees by supervisors about their union affiliations or interests may be found to have been repressive in violation of Section 8 (a) (1). So far as this record discloses Carter was the only employee among some 500 who was asked why he happened to join the Union and how he felt it would benefit him or told he was harming rather than helping himself by his con- duct. Granting that Street intruded Carter's rights, the Board does not exaggerate the significance of merely evanescent, vagrant, and insular encroachments of the statute. In this state of the record, I can not conclude that Respondent has been proven guilty of violating that provision of the Act that has been interpreted to pro- scribe unlawful interrogations. As to the allegation concerning threats of discharge, I am unable to read into Street's plain words any attempt at intimidation or threat, scantily draped or otherwise, that Carter would be discharged if he did not forswear his union allegiance or any promise of benefit to him or other employees to induce them to repudiate the Union. And finally, as to the rather odd allegation of creat- ing the impression of surveillance, regardless of whether that may be conduct viola- tive of the Act under any circumstances, Carter had known weeks previously that Respondent was aware of meetings at his house for, as Carter's wife testified, they were not secret but had been announced in public and everybody had been invited. In the light of this situation, I am of the opinion that no unlawfully restraining or coercive implication is inherent in a statement affirming Respondent's knowledge of facts the,Carters and the three other union adherents had already disseminated. Before reaching a final conclusion regarding the 8 (a) (1) allegations , it is well to consider the General Counsel's argument to the effect that any doubts as to whether Street's inquiries and statements were violative of the Act should be resolved against Respondent because of the impact of the previously outlined "water fountain," "dental treatment," "truck-bucket," "attitude change," "wife-and-friend visiting," and "driv- '684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing-by" incidents. Were there any serious doubts in my mind concerning the lawful- ness of Street's conduct, it might well be that the import of these seven occurrences, each one quite trivial in itself, would in its totality be sufficient to cause the balance to descend against Respondent . One can but conclude that certain of Respondent's supervisors were quite hypercritical in their relations with Sellers and somdwhat dis- criminatory in their conduct toward Carter. This may be explained in part by the fact of Sellers' rather defiant attitude as evidenced by his warning that he would take Holder to court; his statement to Holder, in the presence of Howsie Morris, that any- thing said was going down in a little black book; his statement to his former super- visor, Woody Strauderman, about the time he first began to wear the union button that word was going around that he was going to be fired and if the Company wanted to fire him, it should do so and he would take the case to the Labor Board no matter why he was fired; Sellers' assertion to employee Harold Bacote, when one Griggs was discharged on a Tuesday in January , that hell would be 4 feet in ice before he quit -trying to organize the plant and the Company would not fire him because he was going to be , or try to be, too smart ; as well as Manager Moore's injunction that super- vision should make all lawful effort to discourage or keep out of union activities. All of this indubitably marked Sellers, and Carter to a lesser extent , for closer super- visory scrutiny than was accorded other less determined and contentious employees and it can not be gainsaid that Respondent would have been happy to see Sellers and the Carters more compliant than they were . The implication to which all of this is susceptible is sufficient to give rise to a suspicion, bordering on a doubt, as to the benignity of Street's motive. But the superimposition of a slender incertitude on a foundation of legally irreproachable conduct does not condemn the entire structure. The General Counsel's burden is to support his case by and in accordance with a fair preponderance of the reliable, probative, and substantial evidence . Although the solution to the 8 (a) (1) contention is not simple, I am of the opinion that the -evidence relating to the collateral events, which are not alleged to have been violative ,of the Act, suspicious as the circumstances it discloses may be, is of a character insufficiently reliable, probative , and substantial to support a conclusion that those 'incidents should transmute the innocuous remarks of a solitary supervisor to a single -employee into unfair labor practices from which Respondent should be enjoined to desist. Therefore , on the record as a whole, I shall recommend dismissal of the allegations .of the complaint that Respondent interfered with , restrained, and coerced its em- ployees in violation of Section 8 (a) (1) of the Act. D. Alleged 8 (a) (3) and (4) conduct When Sellers declined to sign the corrected warning slip on February 11, 1954 ,(as set forth in subsection B (3), above, wherein the situation relating to the "truck" incident is described ), Laney told him that he would have until 7 a. in. the following day to decide whether or not he would sign. Early on the next morning, Friday, February 12, Sellers went to the plant intending to see Laney (who it is to be recalled is Thomas' assistant ), but was informed a further investigation of his case was being made and that Laney would see him at 8:30 a. in. on Monday, February 15. 'Sellers made a further attempt to see Laney at 8:30 a. in. on the 12th but was again told to return on the 15th. Upon reporting that day, Laney informed Sellers that he had been discharged . When asked why he had been fired Laney replied that he would rather not talk about it.2 Turning back now, to February 11, after Sellers had left the plant following his talk with Laney, Thomas received a report that Sellers had been distributing union 2 Sellers testified that on the 15th Laney also said , "the reason I gave on your employ- ment should be sufficient." The record does not disclose what reason , if any, Respondent had written up to February 15, 1954, on any form prescribed by South Carolina Employ- ment Security Commission .- By way of information, rather than evidence however, it may be pointed out that there is a statement in what is purported to be a copy of Decision of the Commission 's Appeal Tribunal which was offered as an exhibit but rejected for reasons set forth in footnote 3, infra, that Sellers filed a claim indicating separation on February 11, 1954, and that Respondent reported to the Commission on February 19, 1954, that ,Sellers had not been terminated on February 11, 1954, but had refused to comply with cer- tain company rules and was told to stay out until an investigation was completed. As will later appear in this report , Respondent 's position at the bearing was that Sellers was, not discharged until February 15, 1954, after an investigation of his conduct while at work on February 11, had been undertaken . Laney did not testify , but it seems likely, in view of the time element, Sellers was mistaken in testifying that Laney mentioned, on February 15, the reason Respondent gave the commission and that this remark was made later whelp Sellers again talked with Laney on March 24. 1 DELTA FINISHING COMPANY 685 literature in the plant during work hours that day and in order that he might have -time to investigate the report, requested Laney to get word to Sellers not to report the following morning. The Company had posted in various places in the plant since about March 27, 1953, a notice to all employees setting forth a number of rules, violations of which the notice stated would subject employees to discipline which might include layoff or discharge. Among these rules were provisions against "unauthorized solicitation ,of employees for any purpose," "distributing unauthorized pictures, notices or litera- ture," and "interfering in any way with the work of others." Thomas testified credibly that he made an investigation and learned through a number of supervisors and employees including Street, Crawford, Rivers, John R. Hancock, Sandy Perdue, and Daniel L. Simpson, that Sellers had spent a substantial amount of time during his working time on February 11, passing out union literature to, and had interfered with the work of a number of, employees, as well as with his own work. Upon completion of this investigation Thomas decided to discharge Sellers. Sellers admitted in his testimony before me that on February 10 he had procured about 45, 1954, pocket calendar cards bearing the phrase on their face, "For your family's tomorrow join T. W. U. A. today," and on their reverse side a list of "15 gains through the Textile Workers Union of America, CIO," around 8 or 10 of which he distributed in front of the plant gate on February 11, a good many of which he gave out that day at places other than at the gate, and winding up that day with around 8 calendars left in his pocket. Sellers denied, however, that he materially interfered with the work of employees in passing out the calendars. A number of employees testified credibly concerning Sellers' activities during the day in question. In summary, this testimony discloses that: Harold Bacote was caused to stop his tow motor by Sellers who called to him from 30 to 35 feet and asked him if he had received a calendar; Sellers offered a card to Walter Cassidy while he was going back to his work; John G. Robeson's work on a sewing machine was interrupted by Sellers asking him what he thought about the Union coming in; Sellers gave Otis Poison, who was engaged in work requiring watching cloth turn over, a calendar which Poison guesses he took 2 minutes from work to read; Sellers told John R. Hancock he had something for him and put a calendar in his pocket while Hancock was weighing soda ash on a scale; Sellers asked James C. English if he wanted a union button while English was running a machine located on a passageway leading to the canteen; Daniel L. Simpson and Sandy Perdue were in a ring where employees are allowed to smoke when Sellers handed each a card which according to Simpson's view it took him about 50 seconds to look over; Sellers offered Ralph Wallace a union button while both were in the bathroom; Hilliard Chavis had seen Sellers passing out calendars before, and Sellers stopped Chavis who was on the way to the bathroom and gave him one; Swafford Jacobs knew what Sellers was passing out, having heard about it from other employees, and when Sellers stuck out something to him, and asked him if he wanted it, while he was standing at his machine, Jacobs did not take it; Sellers slid a calendar under the scales where Thomas Chapman was weighing dye; Sellers followed Thomas Quick into the bathroom and handed him a calendar; Robert F. Turnage was given a calendar by Sellers who came up to where Turnage was on the job in front of the becks he operates; Sellers asked Howsie Morris who was working at a table where he numbers and dries patches if he wanted a calendar; Sellers stuck a calendar across to Sam Boan in the canteen; when Arthur Crouse was walking across an alley en route to the restroom, Sellers said, "Let me give you a calendar, look at it" and handed him one; Sellers who had a calendar in his hand interrupted Perry Potter for 2 or 3 minutes while Potter was trying to get a needle threaded by discussing union membership; Sellers engaged Jimmie Wright in conversation for 4 or 5 min- utes in a discussion about Wright's attitude toward the Union; and, Sellers asked William Garris to wear, and pinned on him, a union button while Garris was going to the restroom. On March 24, 1954, Sellers went to the plant and told Laney that he had had a hearing that morning before a South Carolina Employment Commission hearing officer and that according to the hearing officer he had not been discharged; Laney replied that Sellers had given his side of the story and that the Company would have to set another day for a hearing and give theirs.3 s The General Counsel offered in evidence five documents entitled "Appeal No. 17644, Burris J. Sellers," comprising a letter from South Carolina Security Commission granting Respondent further hearing before Appeals Referee, a notice of continued hearing before Appeal Tribunal, a copy of the Commission's letter cancelling continued hearing, the Com- mission's letter transmitting an enclosed copy of Decision of Appeals, Referee--Consti- tuting an Appeal Tribunal. As appears in footnote 2 these offers were rejected. None 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Some time after March 24, 1954, after he began receiving unemployment com- pensation benefits, Sellers telephoned Laney at his home requesting work and was informed there were no openings. On April 16, 1954, after having learned of this call, Thomas wrote Sellers he might get in touch with him if he were interested in the possibility of employment. The following day, or the second day thereafter, Sellers went to see Thomas who, in substance, told Sellers there had been no complaints about his ability but that al- though he did not object to Sellers' union activity outside the plant, his work and the Company's business had suffered because of Sellers' preoccupation with union affairs while in the plant. Sellers' reply was to the effect that he was 100 percent union before February 11 and remained steadfastly 100 percent union, and if he went back in the plant he was going to keep on doing what he had been doing. The import of Thomas' rejoinder was that he disagreed with Sellers insofar as his union activities within the plant were concerned but each had a right to maintain his respective position. There followed some inconclusive talk about the prospects for work in the boilerroom ensuing which Sellers left the plant never since having returned to work, or being requested to come back. E. Conclusions respecting 8"(a) (3) and (4) allegations The reasons given by Respondent for Sellers' termination may adequately be de- scribed in the following quotation from Thomas' testimony: Burris (Sellers) was discharged for distributing union literature during his working time to people who were working, interfering with their work, inter- fering with his work to the detriment of the production of our plant, using our plant and our time as a sounding board for preaching the organization of our plant. The nub of the General Counsel's contention is that the reasons advanced by Re- spondent are purely dissimulatory and that the actual reason for the discharge was Sellers' union activities. Sellers testified that he was aware of a rule that anybody who interferes with his own work or the work of others at the plant by engaging in union activities would be discharged. There is no doubt in my mind, and I find, that he was also aware of the posted rules concerning the penalties to be imposed in the event of unauthorized solicitation and distribution and any interference with the work of others. The General Counsel, relying on Johnston Lawnmower Corporation, 107 NLRB 1086, contends that the rule proscribing unauthorized solicitation of employees is "illegal" (although he refrained from or neglected to make the same contention relating to distribution of literature). Johnston Lawnmower, a representation case, does not apply here. There, the company passed out letters to its employees on the job but denied the same privileges to the union and the Board found that this amounted to a discriminatory application of a no-solicitation rule insofar as it ap- of these documents were legally identified or authenticated and for that reason alone are not admissible But even more fundamentally, notices of reopening of, and cancellation of hearings oz decisions issued by a State agency are not relevant evidence on which one can find, or from which one can draw any inference, as the General Counsel urges should be done, that because of an employer's failure to go to hearing before a State compensa- tion commission and relate the cause of an employee's separation, its reasons given at a hearing in Federal unfan labor practice case are spurious and that the employee was indeed discharged for union activity. No more would State commissions' decisions award- ing unemployment benefits constitute evidence on which one could find or infer, since such benefits are not usually granted in the event of separations for union activity, that an em- ployee's testimony at a hearing there must have been that he was not discharged for such reasons and hence any testimony he may give to the contrary in an unfair labor practice case is false A conclusion either way would be based upon pure speculation. This is not a situation wherein the Board is entitled to take notice of its own records, a departure from the general rule that a court ordinarily will not take notice of records, judgments, and orders in other cases even though they may be between the same parties and in rela- tion to the same subject matter 20 American Jurisprudence, 105 § 87. I discern no warrant in the Act or the Administrative Procedure Act for receiving into evidence any communication or decision, even if authenticated, relating to proceedings in other tribunals between different parties upon foreign issues. The dicta in Stafford Operating Company, 96 NLRB 1217, 1227, relied upon by the General Counsel, concerns merely the produc- tion of records relating to applications of employees for unemployment compensation-not to proceedings before or letters or notices sent out by unemployment security commis- sions-and is inapposite. DELTA FINISHING COMPANY 687 plied to employees' own time. Here it is undisputed that Sellers during working hours used time owed by himself and other employees to the Company for prounion solicitation and distribution (the only question being the amount of time involved). It does not appear that Respondent engaged at any time in any similar antiunion distribution or solicitation at the plant ( unless the isolated incident of Thomas' conversation with the Carters; which is neither alleged nor found to have constituted promise of benefit nor threat of reprisal, a month after the fact of Sellers' discharge, could conceivably be considered antiunion solicitation) either during working time or the employees' own time. Sellers testified that he would give a calendar to everyone in the plant who came by his work station or wherever his duties carried him, if it did not interfere with his own or anybody else's work and that he, himself, could judge whether such conduct resulted in interference. The fact remains that the rules prohibiting unauthorized solicitation and distribution were violated regard- less of whether or not there was any interference with work. Moreover, although Sellers takes upon himself the rule of judge as to whether he infracted the third rule inhibiting any interruption of others' work, and asserts that he did not markedly retard production in the course of his solicitation and distribution of calendars and buttons on February 11, there is ample credible evidence from at least 14 em- ployees including Bacote, Cassidy, Robeson, Polson, Hancock, English, Chavis, Jacobs, Chapman, Turnage, Crouse, Potter, Wright, and Garris, that Sellers either distributed or attempted to distribute calendars or buttons to them and others, or talked to them soliciting their support for the Union, or both, during his and their working time when they were either actually on the job or enroute to and from their work. It seems to me that the only conclusion deducible from this mass of evidence and the fact, admitted by Sellers, that he distributed around 37 calendars on February 11, is that Sellers did materially interfere with the work of others. Thus it is plain that Sellers did violate three posted company rules on February 11, 1954, all of which carried the possible penalty of discharge, i. e , the rule against unauthorized solicitation, the rule against unauthorized distribution of literature, and the rule against interfering with others' work. But this conclusion does not completely dispose of the issue. In insisting that even though Sellers broke company rules (and I take it that the General Counsel does not concede that he did), nevertheless it should be found that the discharge was motivated by Respondent's opposition to Sellers' protected union activities, the General Counsel makes various points the chief of which are: (1) Respondent was not aware of Sellers' infractions on February 15 when Laney told him he was dis- charged; (2) Respondent discriminatorily applied its distribution, solicitation, and interference rules; (3) Respondent failed to give Sellers any reason for his dis- charge; and (4) Thomas, upon learning that Sellers' support of the Union remained unabated, declined to reinstate him on or about April 17, after previously hinting that he might be reemployed. Although several of the employees who were witnesses at the hearing testified that they had not informed any person in a supervisory capacity of Sellers' ap- proaches to them until shortly before the hearing and during the time of the prepa- ration of the case for trial, it appears that at least three supervisors had told Thomas about Sellers' February 11 activity before Laney announced to Sellers on Feb- ruary 15, that he was discharged. It also appears that Bacote spoke to Foreman Wesley Griggs at the time Sellers spoke to him. Hancock told Street, Rivers, and Thomas about it the same day, Byrd reported it to Parker a few minutes after it happened, Chapman told Parker about it "some time later," Turnage told Wallace about it the next day, Potter told Thomas about the interruption the day after it happened, and Wright spoke to Thomas about the incident the same afternoon. It further appears that Sellers' conduct was open, unconcealed, and widely observed by employees in his and other departments. In view of all of this, it is manifest that between the hour Thomas first received a report after Sellers had left the plant on February 11 that he had been distributing union literature in the plant during working hours that day, and the hour when Sellers was informed he was discharged on February 15, during which time an investigation had been conducted, definite knowledge came to Respondent's director of personnel that Sellers had violated com- pany rules on February 11. Any claim therefore that Respondent's asserted reason for discharging Sellers is newly invented and an afterthought is without merit. Arthur Crouse, an employee, testified that around 2 years previously when the plant was first started there was a collection taken up for a minister without per- mission of management and that subsequently he had helped out in taking up collections for the injured son of a foreman and a hospitalized son of an employee, with permission of management. Eula Mae Carter testified that once employee Clarence Shart in the presence of Foreman Woody Strauderman handed her what appeared to be a book when she was walking along an aisle and when she opened 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it found the object contained batteries from which she received an electric shock, and that the episode took place in just a few seconds to a minute. Considerable evidence was elicited from which it appears that employees occasionally talked together without objection from management about subjects unrelated to their work. The extent of this type of conversation is unclear but no finding that it was more than minimal or that management was aware of its occurrence is warranted. There is no evidence that anybody other than Sellers distributed literature. Thus, apart from Sellers' extensive activities we see at most but one other instance of unau- thorized solicitation (and that 2 years earlier), one of condoned possible "interfering with the work of others," and none of unauthorized distribution. The facts then, are at extreme variance from those appearing in the oft-cited case of Standard- Coosa-Thatcher Company, 85 NRLB 1359, where it appears at p. 1365, the com- pany permitted extensive solicitation and the Board was convinced it enforced a rule against importuning for the sole purpose of preventing self-organization. Even assuming, arguendo, that the General Counsel had established that the nonsolicita- tion and interfering rules were discriminatorily applied, the fact still remains that Sellers violated the third rule proscribing distribution with respect to which the dis- criminatory exercise of which there is not a scintilla of evidence. It can not be doubted that Sellers was an open and militant union exponent. Even if it were proven, however, that this factor was given consideration in deciding whether or not he should be discharged, this hardly shows that he was separated because he had actively participated in union activities. Southern Oxygen Co, Inc., v. N. L. R. B., 213 F. 2d 738 (C. A. 4). Certainly unprotected union activities, such as I find Sellers engaged in, did not secure him immunity from discharge. He had put Re- spondent on notice that any action taken against him would result in litigation and made it clear that he considered himself "too smart" to be fired. Under these circumstances it was not unnatural that Respondent was guarded in treating with him and I feel that Thomas' explanation to the effect that the Company's purpose in not giving Sellers any reason for discharging him was that it did not wish to help him make out a complaint against it by disclosing to him any grounds which he might attempt to checkmate, circumvent, or explain away or upon which he might try to build up a claim, is a truthful elucidation of why Respondent adopted an attitude of arm's length caution in dealing with a person who, in the last analysis, had brought such treatment down upon himself by virtue of his own belligerence. Thomas testified that after he learned in April 1954 that Sellers desired to return to work for the Company he thought the situation over and since there was only one charge pending against the Company and that he did not want to be unreason- able if Sellers acted as a normal employee, he wrote the letter of April 16. All law, including the labor law, loves settlements and a willingness to adjust a labor or any other dispute, whether thought to be genuine or contrived, should not redound to the disfavor of a conciliatory party or readily be construed as an admission of culpability. Nor should humanitarian motives be deprecated. It is evident that Thomas desired to assure himself that, if Sellers should come back, there would be no recurrence of the disrupting episodes in the plant that had led to his dis- charge. He therefore let Sellers know that he was a satisfactory employee insofar as his work was concerned but that he objected to his union activities during his time at work. Sellers then insisted that in no way had he receded from his com- plete dedication to the Union's success and that if he came back to work he intended to continue conducting himself as he had before his dismissal. I have no reason to believe that Sellers' application for work was other than genuine or that his purpose in asking for a job was made merely in the hope of establishing the allega- tion in the complaint, filed a little more than a week earlier, that Respondent had discriminatorily refused to reinstate him or in the expectation of procuring some other evidence that might tend to support the claim that Respondent had violated the Act. Sellers is not to be condemned, for his fearless and unrelenting espousal of a cause in which he thoroughly believed. But it must be said that he dis- played more courage than judgment in adopting the means he employed in seek- ing to attain his goal. He must be brought to realize that ours is a government of laws, not of men. The law has established limits beyond which one may not tres- pass in the furtherance of no matter how worthy a movement. The Board has frequently recognized the validity of the general principle that the right of employees to engage in union activities is limited by the duty to devote their working time to their employers' business. Applying this principle to the facts of this case, I find that Sellers exceeded the boundaries beyond which the exercise of full freedom of self-organization may penetrate by his infringement of reasonable rules regulating employee conduct made in the interest successfully of carrying on the Employer's business. The fact of Sellers' discharge was of his own doing. His was not the function of deciding what he could do and what he could not do in behalf of the SERV-AIR AVIATION 689 Union during his own and his workmates' working hours. When Thomas learned- that Sellers still planned to arrogate to himself the power to decide whether or not he was violating company rules in the course of indulging in union activities at the plant and that he intended to carry on as before and continue to engage in what were, to any reasonable man, even if not to Sellers, the breaking of regulations, Thomas' conclusion that co-existence was intolerable is understandable and his consequent decision against rehire has justification. Viewing the evidence in the light most favorable to the General Counsel's con- tention, it could be found that the allegation of discrimination has been established. Assuming that a prima facie case was made out, it then became incumbent on Respondent to go forward with the introduction of testimony tending to meet or control the General Counsel's evidence. This I conclude Respondent has success- fully done. Therefore I am unpersuaded that the weight of the evidence adduced is sufficient to support the allegation that Sellers was either discharged or denied reinstatement either on account of his having given testimony under the Act on. behalf of the General Counsel at a hearing of a case in which Respondent was a party or because of his membership in, and activities on behalf of the Union. On, the contrary I am convinced that Sellers was discharged and denied reinstatement for cause. Accordingly, I conclude that the allegations respecting Sellers should be dismissed. Therefore, on the record as a whole I shall recommend dismissal of the allega- tions of the complaint that Respondent discriminated against Burris L. Sellers in, violation of Section 8 (a) (3) and (4) of the Act. CONCLUSIONS OF LAW 1. The operations of Delta Finishing Company (Division of J. P. Stevens & Co.,. Inc.-Plant No. 3) Wallace, South Carolina, constitute and affect trade, traffic,. and commerce among the several States, within the meaning of Section 2 (6) and (7) of the Act. 2. Textile Workers Union of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. Respondent has not engaged in unfair labor practices within the meaning of Section 8 (a) (1) (3) and (4) of the Act. [Recommendations omitted from publication.] SERV-AIR AVIATION , STALLINGS AIR BASE and CLYDE H. HARTMAN SERV-AIR AVIATION , STALLINGS AIR BASE and SAVOY NELSON SERV-AIR AVIATION , STALLINGS AIR BASE and HARVEY L. WINSTEAD' SERV-AIR AVIATION , STALLINGS AIR BASE and MARGARET STRICKLAND, SERV-AIR AVIATION , STALLINGS AIR BASE aind ALFRED L. TUCKER. Cases Nos. 11-CA-659, 11-CA-660, 11-CA-66P2, 11-CA-681, and- 11-CA-7t6. February 18,1955 Decision and Order On August 4, 1954, Trial Examiner Arthur Leff issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent 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 Inter- mediate Report attached hereto. Thereafter, the Respondent filed a statement of exceptions to the Intermediate Report. The Board has reviewed the rulings of the Trial Examiner made, at the hearing and finds that no prejudicial error was committed.. 111 NLRB No. 112.