Dan River Mills, Inc.

1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meal training in the performance of their duties, we find that the six test-out technicians are technical employees, and accordingly, exclude them from the unit 4 Accordingly, we find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within Section 9 (b) of the Act All production and maintenance employees at the Employer's Kan- sas City, Missouri, plant, including the assemblers, the final assem- blers, the stock handler, the storeroom clerk, receiving clerk, shipping clerk, shopman, assistant shopman, the leadladies in the circuit analyzer departments, and the final assembler leadman, but excluding the draftsmen, the leadwomen in the wire and cable cutting depart- ments, the test-out technicians, office clerical employees, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication ] @ See Litton Industries of Maryland, Incorpiorated, 125 NLRB 722 (test environ- mental, and test equipment technicians ) Caine Corporation, 116 NLRB 449, 450, 451 (electronic technician) Dan River Mills, Incorporated and United Textile Workers of America, AFL-CIO. Case Na 10-C.4-3414 December 21, 1959 DECISION AND ORDER On July 24, 1959, Trial Examiner Samuel Ross issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the com- plaint 1 Thereafter, the Respondent filed exceptions to the Inter- mediate Report and a supporting brief Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Fanning] The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed The rulings are hereby affirmed The Board has considered the In- termediate Report, the exceptions, and the entire record in this case, 1 The Trial Examiner found that Tohn B Hubbard was net discriminatorily discharged as alleged In the absence of any exceptions, we adopt the Trial Examiner's finding in this regard 125 NLRB No 98 DAN RIVER MILLS, INCORPORATED 1007 and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following correction 2 and modifications: Like the Trial Examiner, we find that Plant Superintendent Dockery's coercive interrogation of employee Jones regarding his union activities and his threats during the summer of 1958 to dis- charge employees for "fooling with the Union" violated Section 8(a) (1) of the Act. We also concur in the Trial Examiner's finding that the Respondent discharged J. W. Dunlap on February 26, 1958, and Levert Jacobs on May 8, 1958, because of their union activities and thereby violated Section 8(a) (3) and (1) of the Act. Respondent contends that neither of these employees had been active in the Union for many months prior to their discharge and alleges that the Trial Examiner relied solely on the findings by the Board in a prior case 3 involving the Respondent to support his findings herein that the Respondent had knowledge of their union activities. The Respondent asserts that any reliance on such findings is barred by the 6 months' limitation in Section 10(b) of the Act and is contrary to the Board's holding in the News Printing Company case.' In that case the Board held that it was improper for a Trial Examiner to give independent and controlling weight to findings in a prior Board case as to events occurring prior to the statutory 6 months' period. The Board has consistently held' that Section 10 (b) is a statute of limita- tions and not a rule of evidence. In the Paramount Cap case,' the Board held that the decision in News Printing did not preclude it from considering evidence of union animus developed in a prior rep- resentation proceeding more than 6 months before the service of the charge in the Paramount case, and utilized such evidence to establish a discriminatory motive for discharging an employee within the stat- utory 6-month period. For similar reasons, we conclude that the de- cision in the News Printing case is not incompatible with our con- sideration here of evidence brought out in the prior unfair labor practice proceeding, beyond the statutory 6-month period, to establish Respondent's knowledge of Jacobs' and Dunlap's union activities. Moreover, with respect to Dunlap, there is ample evidence that Re- spondent knew of his union activities apart from the testimony in the prior case. Maddox, the immediate supervisor of Dunlap and the one'vho made the decision to discharge him, testified in the instant 2 At one point in the Intermediate Report the Trial Examiner inadvertently finds that Dunlap was discharged "on February 26, 1959." This is hereby corrected to read "February 26, 1958." 8 Dan River Mills, Incorporated, Alabama Division, 121 NLRB 645 . In that case both Jacobs and Dunlap testified that they had signed union cards and the Board so found. * News Printing Company, Inc., 116 NLRB 210. Paramount Cap Manufacturing Company, 119 NLRB 785, 787 ; Bryan Manufacturing Company, 119 NLRB 502, enfd. 264 F. 2d 575 (C.A., D.C.), cert. granted 360 U.S. 916; Brady Aviation Corp., 110 NLRB 25 ; Amelson Manufacturing Company, 88 NLRB 761. e Ibid. 1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case that he had heard that Dunlap was active in the Union. The threats of Superintendent Dockery (which occurred within the 6-month period) to the effect that all union adherents would be dis- charged clearly establishes the Respondent's union animus. This evi- dence is relevant in determining Respondent's motivation in discharg- ing both Dunlap and Jacobs as Dockery was plant superintendent at the time of both discharges. Such threats were consistent with the Respondent's antiunion attitude found by the Board in the prior case. The Respondent contends also that the Trial Examiner should have credited Maddox's testimony concerning Dunlap's and Jacobs' alleged shortcomings as employees. However, the Trial Examiner refused to credit such testimony because Maddox was evasive, contradictory, and, in some instances, his written comments on deficiencies in the work of these employees were dated prior to the discovery of such alleged deficiencies. Upon examination of the record we find insufficient rea- son for disturbing the credibility findings of the Trial Examiner in this regard.' 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, Dan River Mills, Incorporated, Aliceville, Alabama, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in and activities on behalf of United Textile Workers of America, AFL-CIO, or in any other labor organi- zation of its employees, by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to hire or tenure of employment, or any other term or condition of employment. (b) Interrogating employees regarding their union membership or activities in a manner constituting interference, restraint, or coercion; threatening to discharge or to refuse to reinstate employees if they join, retain membership in, or engage in concerted activities on behalf of United Textile Workers of America, AFL-CIO, or any other labor organization; or in any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form or assist labor organizations, to join or assist United Textile Workers of America, AFL-CIO, 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 as guaranteed in Section 7 of the Act and to refrain from any and all such activities, 7 See Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 1). DAN RIVER MILLS, INCORPORATED 1009 except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to J. W. Dunlap immediate and full reinstatement to his former or to a substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of the discrimi- nation against him, as provided in the section of the Intermediate Report entitled "The Remedy." (b) Make whole Levert Jacobs for his loss of earnings as a result of the discrimination against him as provided in the section of the Intermediate Report entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due and the right to reinstatement under the terms of this Order. (d) Post at its plant in Aliceville, Alabama, copies of the notice attached hereto marked "Appendix A." 8 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by Respondent, be posted immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices are customarily posted. Respondent shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Tenth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent discriminatorily discharged John B. Hubbard be, and it hereby is, dismissed. 8 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." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : 1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT discourage membership in or activities on behalf of United Textile Workers of America, AFI,CIO, or any other labor organization, by discharging, laying off, or refusing to, reinstate any of our employees or in any other manner discrimi- nating against our employees in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT threaten our employees with discharge, refusal of reinstatement, or with any other economic sanction to discourage them from joining or assisting labor organizations or engaging in other concerted activities for mutual aid or protection. WE WILL NOT interrogate our employees regarding their union membership or activities in a manner constituting interference,, restraint, or coercion. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self -organi- zation, to form labor organizations, to join or assist United Tex- tile Workers of America, AFL-CIO, or any other labor organi- zation, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer to J. W. Dunlap immediate and full reinstate- ment to his former or substantially equivalent position, without. prejudice to any seniority or other rights and privileges previ- ously enjoyed. WE WILL make whole J. W. Dunlap and Levert Jacobs for any loss of pay suffered as a result of the discrimination against them. All our employees are free to become or to refrain from becoming or remaining members of United Textile Workers of America, AFL- CIO, or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. DAN RIVER MILLS, INCORPORATED, 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. DAN RIVER MILLS, INCORPORATED INTERMEDIATE REPORT AND RECOMMENDED ORDER 1011 STATEMENT OF THE CASE Upon a charge filed by United Textile Workers of America, AFL-CIO (herein called the Union), the General Counsel of the National Labor Relations Board, by the Regional Director for the Tenth Region, issued a complaint dated October 6, 1958, alleging that Dan River Mills, Incorporated (herein called Respondent), had engaged in and was engaging in unfair labor practices with the meaning of Sections 8(a) (1) and (3) and 2(6) and (7) of the National Labor Relations Act, as amended (,61 Stat. 136, herein called the Act). More specifically, the complaint alleges in substance that the Respondent on various dates in June, July, and August, 1958, interrogated employees concerning their union membership and activities and threatened them with discharge for joining, retaining membership in, or engaging in activities on behalf of the Union, and in February and May 1958 discharged J. W. Dunlap, John B. Hubbard, and Levert Jacobs because of their membership in and activities on behalf of the Union. Respondent filed an answer denying the material allegations of the complaint. Pursuant to due notice, a hearing was held before the duly designated Trial Examiner in Aliceville, Alabama, on December 9 and 10, 1958. All parties were represented at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues. At the conclusion of the hearing, oral argument was waived by the parties. Only the Respondent has filed a brief. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. COMMERCE The Respondent is engaged in the weaving and distribution of cloth. At its Aliceville, Alabama, mill, which is the only plant involved in this proceeding, the Respondent sold and shipped, during the past 12 months, finished products valued at in excess of $50,000 to customers outside the State of Alabama. On the foregoing admitted facts, I find that the Respondent is engaged in interstate commerce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED The uncontradicted evidence discloses that United Textile Workers of America, AFL-CIO, is an organization in which employees participate, and which exists for the purpose of dealing with employers concerning grievances , labor disputes, rates of pay, hours of employment , and other conditions of employment . Accordingly, I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A, Background On August 8, 1956, Respondent purchased the Aliceville, Alabama, mill from its former owner, Alabama Mills. In December 1956, the Union began organizing Respondent's Aliceville employees. Thereupon, as found by the Board in Dan River Mills, Incorporated, Alabama Division, 121 NLRB 645, "in order to gain time within which to undermine the Union and to dissipate its representative status through coercive tactics," Respondent interrogated employees regarding their union views, membership, and activities; engaged in surveillance of union meetings of its employees; participated in, encouraged, and condoned physical assault on employees and union organizers because of their union activities; prevented and interfered with the distribution of union literature outside the gates of its property; threatened shutdown, other economic penalties, and to refuse to deal with the Union if the mill became organized; warned employees not to wear union buttons, attend union meet- ings, or participate in union activities; discharged five employees because of their adherence to and activities on behalf of the Union; and refused to bargain collec- tively with the Union although the latter had been designated as their collective- bargaining representative by a majority of Respondent's Aliceville employees, all in violation of Section 8(a)(1), (3), and (5) of the Act.' 1 A petition for enforcement of the Board's order In the earlier case against Respond- ent has been filed In the Court of Appeals for the Fifth Circuit, and is presently pending. 1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The current incidents alleged as unfair labor practices The instant complaint alleges additional incidents , since the hearing in the prior case, of interference, restraint, and coercion of employees by the Respondent and the discriminatory discharge of three more employees because of their membership in or activities on behalf of the Union. 1. The interference, restraint, and coercion In either April or June 1958, employee Bill Jones accompanied Plant Super- intendent James Dockery from the Aliceville mill to Jones' sister's house for the purpose of notifying Jones' brother, Curtis, of the latter's acceptance for employment by Respondent? During the ride out , Jones and Dockery engaged in conversation ,during which the Union was admittedly discussed . In respect to that subject, Dockery said, "those [employees] that were laid off that had been fooling with the union would not be called back, that they would be discharged." 3 Dockery warned .Jones "not to fool with it [the Union]" and "not to talk with any of the Board people or none that were fooling with the Union" whether or not the latter were employed by Respondent. Several weeks later, Jones had another conversation with Dockery while he was working at the mill. Dockery accused Jones of "fooling with the Union again" and asked Jones whether the latter's brother had signed a union card. Dockery warned Jones that if he signed up his brother to a union card, both .Jones and his brother would be fired . In August 1958, Jones, whose home is directly across the street from the Aliceville mill about 50 feet from Respondent's office, was visited by Russell Bryant 4 and later that day by Dennis MacCarthy, the General Counsel's representative . While at work the next morning Dockery again accused .Jones of fooling with the Union and said , "If you want to keep working for the ,company, you had better leave it alone for me and Mr. Gurley 5 is not joking when we say that we are not going to have a union ." Dockery further said that "all that did fool with them [the Union], he was going to discharge them." Dockery then asked Jones "who my company was last night" and Jones replied that "it was the Board man." Then Dockery asked, "How come Russell Bryant was down to see you yesterday? What did he want?" Jones replied that Bryant wanted to talk with him .6 2 Jones testified that this incident occurred in June 1958. Dockery testified that it occurred on April 15, 1958, the date that Jones' brother was hired. Although available to it, no records were produced by Respondent to corroborate the date of employment of Jones' brother Curtis. Since I do not regard the date of this incident as particularly significant, I shall not resolve the conflict. 21 assume this was a reference to the employees whose discharge by Respondent was litigated in the earlier case. 4 This apparently was Wilton Russell Bryant whose earlier discharge by Respondent was found by the Board in the prior case to be a violation of Section 8(a) (3) of the Act and in February 1958, was elected president of the Union's local. Ray C. Gurley, Respondent's division manager. The foregoing is based on the credited testimony of the witness Bill Jones whom I regard as a truthful, although illiterate, witness whose testimony at the hearing was consistent with his affidavit given to a Board agent in September 1958. I make this credibility finding despite my disbelief of his denial, on cross-examination, that he had discussed the testimony he was to give at the hearing with anyone, because from my observation of Jones, demeanor and the entire record, it is my opion that the afore- mentioned denial was attributable to his illiteracy and lack of understanding and not to lack of veracity. Dockery admitted he had a conversation with Jones regarding the Union on the occa- sion of the hiring of Jones' brother. He denied making the threats to which Jones had testified. When asked to state what the conversation was, Dockery responded with the conclusionary reply that Jones "was concerned that I knew that he had signed a [union] card . . . and was worried that I was going to lay him off or fire him because he had signed the card." Dockery also admitted that he had several conversations with Jones in the plant but denied making the threats to which Jones had testified. According to Dockery, Jones stopped him in the plant on three occasions because he was concerned over Dockery seeing Russell Bryant, the Union's local president, visiting Jones' home across the street from the plant, and on each occasion asked Dockery how he could "keep Bryant from coming to see him." I do not credit either Dockery' s denials or his conclusionary testimony regarding Jones' "concern" and "worry" that Dockery knew about Jones' membership in the Union and Russell Bryant's visits to Jones' home. In DAN RIVER MILLS, INCORPORATED 1013 Upon the foregoing, I find and conclude that by the aforedescribed conduct of Plant Superintendent Dockery, Respondent coercively interrogated employees re- garding their union activities and threatened employees with discharge for joining, retaining membership in, and engaging in activities in behalf of the Union, and thereby violated Section 8(a)(1) of the Act. School-Timer Frocks, Inc., 110 NLRB 1659; cf. Blue Flash Express, Inc., 109 NLRB 591, 593. 2. The discharge of J. W. Dunlap Dunlap was employed by the Respondent and its predecessor, Alabama Mills, for a period of 14 years. He was discharged by the Respondent on February 26, 1959. Dunlap's job in Respondent's mill was to maintain in good working order and to keep clean the humidifying equipment, to make periodic readings of the humidity bulbs and maintain graphs or charts showing such readings, to keep the wet humidity bulbs filled with water, to look after the humidity heads to prevent them from becoming "drippy," to clean all the fans, to oil the motors in the spinning room, to replace blown fuses and burned out motors, and to perform the duties of watchman and fireman when the latter were absent. Dunlap's supervisor for all but the last month of his 14 years of employment at the mill was Sam Cochran, the master mechanic? According to the credited testimony of Sam Cochran, Dunlap "was a good worker" and he never had to write up Dunlap for poor workmanship.8 Dunlap signed a card for the Union and testified at the hearing in the earlier case in July 1957, that he had done so. During the prior hearing, Dunlap distributed several union cards to employees. Dunlap attended the union meetings which preceded the previous hearing and also attended the one held in the latter part of February 1958, at which Wilton Russell Bryant was elected the local union presi- dent. Master Mechanic Maddox testified that he had heard that Dunlap was active in the Union. On February 26, 1958, at 6 a.m. Dunlap was told by Master Mechanic Maddox that the latter had found a humidity bulb without water in it and that he would have to let Dunlap go. Dunlap testified that he had never been reprimanded for poor work prior to that occasion. According to Maddox, the humidity equipment at Respondent's Aliceville mill was in bad shape when he took over on January 27, 1958, the job of master mechanic. After a couple of weeks, the condition of the humidity equipment had not im- proved and Maddox testified that he "told him [Dunlap] he wanted the job speeded up" and that he would not take Dunlap off the job except for an emergency. No emergency occurred. Maddox further testified that about February 21, 1958, he instructed Dunlap to clean up some spinning frames so that they could be painted the following weekend by an extra detail of employees, but that Dunlap did not clean the bottom 6 inches of the frame, thereby making it necessary for the painting crew to do so. Finally, Maddox testified that on the day before he discharged Dunlap, he found a humidity bulb which was dry and which he concluded had not been filled with water for several weeks. Maddox thereupon concluded he could not use Dun- lap because he was "not performing his job duties as instructed." general Dockery impressed me as an unreliable witness who endeavored to direct his answers along paths most favorable to Respondent's defense rather than to give forth- right accounts of the events about which he was questioned. 7 Lucien Maddox replaced Cochran as Dunlap's supervisor on January 27, 1958. g Respondent attempted to impeach Cochran and to diminish the impact of his testi- mony by cross-examination and by testimony that Cochran was replaced as master mechanic by Maddox because the former had not properly maintained the plant and had never written up any employee for poor work. In assessing Cochran's testimony I have not discounted the possibility that he may have had motivation for retaliation against Respondent by reason of his demotion as a result of which he quit Respondent's employ. I3owever, I found no indication of hostility or animus against Respondent on Cochran's part and I have concluded that his testimony in this proceeding was completely truthful. He was as cooperative on cross-examination as upon direct examination and his answers were complete and unevasive. Moreover, his testimony that Dunlap was a good worker was consistent with the latter's 14 years of employment at the mill. Although Cochran admitted that there were some occasions when he found and called to Dunlap's attention empty humidity bulbs, "drippy heads," and dirty pipes, he did not regard this as due to poor workmanship on the part of Dunlap, but because "probably he [Dunlap] was busy doing something else." I find this to be consistent with the record which showed that Dunlap had many duties in the plant. 535S2.8-60-vol. 125-65 1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The question of whether Dunlap was discharged because he was not properly performing his job or because of Respondent's hostility to the Union presents primarily a question of credibility . Respondent introduced into evidence three. writeups of reprimands allegedly administered to Dunlap by Maddox.9 The first of the writeups on Dunlap (Respondent's Exhibit No. 7) was allegedly written by Maddox on February 5 , 1958, just a little more than a week after he took over as master mechanic. The writeup stated: I talked with J. W. [Dunlap ] about drippy heads, dirty pipes controls not working correct and I told him the importance of his job and I was expecting him to do the job . And if he did not comply I would have to make a change. (S) LUCIEN MADDOX. The second writeup (Respondent's Exhibit No. 8) stated: On 2-20-58. I ask J. W. Dunlap to clean spinning frames to be painted his work had to be done over. (S) LUCIEN MADDOX. The third and last, dated February 26 , 1958, the date of Dunlap's discharge , stated- I have explained to J. W. Dunlap many times the importance of his job. Troubles I find as follows: 1. Empty water bowels on wet and dry tubes 2. Drippy heads 3. Control boxes not clean Under these conditions I can not perform my dutiesas required. ( S) LUCIEN MADDOX. Maddox admitted that he neither advised Dunlap that he was being written up nor showed him any of the writeups. From my observations of Maddox , his demeanor on the witness stand, and on the entire record , I do not credit his testimony regarding Dunlap 's alleged shortcomings as an employee. My reasons for this conclusion are as follows: 1. Dunlap had performed the same job for about 14 years to the entire satisfac- tion of his prior supervisor. 2. The threat of discharge , implied in Respondent 's first writeup on Dunlap in 14 years (Respondent's Exhibit No. 7), is inconsistent with Dunlap's long period of satisfactory service for the Company and improbable in view of the admittedly poor condition of the humidity equipment and the short interval available to improve that condition before the threat of discharge allegedly was made.1° 3. The importance of the dry bulb for which Dunlap was allegedly fired was exag- gerated by Maddox. The credited testimony of Dunlap and Cochran discloses that dry wet bulbs were not an unusual occurrence in the plant and that employees fre- quently turned them over when they walked by or blew the water out of them while cleaning their machines with air hoses . Moreover , the wet bulbs have no significance in the maintenance of humidity in the plant but function only as a gauge of the humidity. 1 therefore do not believe that Maddox would have discharged Dunlap because of a dry humidity bulb even if I believed Maddox's testimony in respect thereto. 4. I am not persuaded that the "drippy heads" were the result of nonperformance by Dunlap of his job. The humidity as well as other equipment at Respondent's Aliceville mill were admitted by Maddox to be old and could use "quite a bit" of modernization. 5. 1 found Maddox to be an evasive, contradictory, and untrustworthy witness. For example, Maddox first denied that Respondent was getting "a lot of" new machinery, denied that it was getting machinery from a closed mill in Rome, Georgia, but finally admitted that it was getting new machinery . On another occasion, Mad- dox first testified that he checked Dunlap 's readings of the humidity bulbs and found them to be incorrect and that he called this fact to Dunlap's attention . Subsequently, 9 The policy of writing up reprimands of employees was inaugurated by Respondent in the latter part of 1956, coincident with the Union 's campaign to organize the Aliceville mill. According to Respondent's witnesses, instructions were issued to supervisors to make a written note of every reprimand given to employees for improper work or conduct and to deposit the "writeups" in the office for filing in the employees ' personnel folders., 10 If believed, the threat of discharge was administered 1 week after Maddox became master mechanic. DAN RIVER MILLS, INCORPORATED 1015 Maddox testified that he never checked to see whether Dunlap's humidity readings were correct. 6. Maddox's alleged assignment of Dunlap to clean spinning frames for painting was inconsistent with his testimony that shortly before that, Maddox, because of the poor condition of the humidity equipment, "told him [Dunlap] he wanted the [humidity] job speeded up" and that he would not take Dunlap off the humidity work "for anything except when an emergency would arrive and that didn't arrive." 11 In view thereof and the testimony, hereinafter reported (footnote 14), I do not be- lieve that Dunlap was even assigned to clean up the spinning frames. 7. Maddox's testimony regarding when he wrote up Dunlap and Levert Jacobs, another employee, for improperly cleaning the spinning frames was confused and contradictory and the writeups of this alleged poor work antedated the discovery of the alleged improper work by Maddox. Thus, Maddox testified that he instructed Jacobs on February 19.and Dunlap on Friday, February 21, to clean up the spinning frames preparatory for painting them the weekend of February 22.12 He further testified that he did not observe that the cleaning was not properly done until Satur- day, February 22, and he reprimanded them for it after the weekend. Maddox first testified that he prepared the writeups of Dunlap and Jacobs when he reprimanded them about it. The writeups (Respondent's Exhibits Nos. 3 and 8) are both dated February 20 which is before Maddox even knew the work was improperly done. When confronted with this contradiction in his testimony, Maddox lamely conceded that the dates might be erroneous and probably referred to when the work was assigned. This, of course, contradicted both his aforestated testimony regarding when the work was assigned as well as his testimony that the writeups were prepared and dated when he allegedly reprimanded Jacobs and Dunlap.13 Moreover, Dunlap's writeup that the work "had to be done over" and Jacobs' that it was "useless" and had to be "done over" was exaggerated and contrary to Maddox's testimony that only the bottom 6 inches of the large (42" x 46") spinning frames had allegedly not been cleaned.14 Based on the foregoing and Dunlap's denial that he was ever reprimanded for poor work prior to his discharge, I believe that the February 20, 1958, writeup falsely charged Dunlap with failure to clean the spinning frames 15 and since I do not regard Maddox as a trustworthy witness, I also do not believe Maddox's writeups of Dun- lap's alleged shortcomings in connection with the "drippy heads" and the dry humid- ity bulbs.1B 11 The cleaning and painting of spinning frames was a part of general maintenance of the mill unconnected with humidity work and was obviously not an emergency. 12 On direct examination, Maddox testified that he gave Jacobs instructions to clean the frames because the painters were coming in the next morning to paint. On cross- examination, Maddox testified that he gave Jacobs instructions 3 days in advance of the painting because there were so many of them, they could not be cleaned up in 1 day. 13 See page 1018 for other contradictions in the testimony of Maddox regarding the spinning frames incident. 14 In connection with the alleged failure of Dunlap and Jacobs to properly clean the spinning frames, Respondent called as -a witness employee James Cochran who testified that he was assigned to painting heads and spinning frames and that he had to wipe cotton and grease from them before they could be painted. Cochran testified that Maddox told him Jacobs was supposed to clean them. It is significant that according to Cochran's hearsay testimony of his conversation with Maddox, the latter did not attribute the unclean condition of the spinning frames to Dunlap. 1e See footnote 8 in the Board's decision in the earlier case (121 NLRB 645) for a similar incident of a writeup by one of Respondent's supervisors which charged an employee with misconduct before the alleged misconduct occurred. 111 regard the last writeup of Dunlap dated February 26, 1958, as a self-serving and exaggerated attempt on the part of Maddox to justify Dunlap's discharge. On the date in question, Dunlap, even on Maddox's testimony, had only failed to keep water in a single humidity bulb. Yet the writeup charged Dunlap with this alleged shortcoming in the plural and also charged Dunlap with "drippy heads" and unclean control boxes concerning which there had been no reprimand by Maddox on that day. See N.L.R.B. v. Pittsburgh S.S. Company, 337 U.S. 656, 659, where the Supreme Court said : [T]he facts disputed in litigation are not random unknowns in isolated equations- they are facets of related human behavior, and the chiseling of one facet helps to mark the borders of the next. Thus, in the determination of litigated facts, the testimony of one who has been found unreliable as to one issue may properly be accorded little weight as to the next. 1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The discharge of Levert Jacobs Levert Jacob was employed by Respondent at its Aliceville mill and by its prede- cessor, Alabama Mills, continuously from April 9, 1935, until his discharge by Respondent on May 8, 1958. For the first 7 years of his employment at the mill, Jacob's job consisted of firing the boiler and acting as watchman and included punch- ing the time clock. The balance of his 23 years of employment at the mill was in the job of maintenance mechanic and helper to the master mechanic in the machine shop. For 22 years, Jacob's supervisor was Master Mechanic Sam Cochran. As aforestated, on January 27, 1958, Lucien Maddox was transferred by Respondent to the Aliceville mill and took over as master mechanic, and from that date until Jacob's discharge, Maddox was Jacob's supervisor-. Jacob signed a card for the Union and testified to that fact in the prior unfair labor practice proceeding against Respondent. After the July 1957 hearing, he took an active part in the Union's activities, and attended such union meetings as were held, including one at which Wilton Russell Bryant was elected as the president of the newly chartered local of the Union. He carried blank union cards with him at all times and distributed one or two to employees who desired them. At the outset of the Union's organization campaign when it was seeking a Board-conducted election, Jacob served on the Union's committee. Jacobs testified that prior to the date of his discharge by Respondent, he was never told during the many years of his employment at the mill that his work was unsatis- factory, and in fact he had been frequently complimented on his work by his supervisor, Sam Cochran. Cochran testified that Jacobs was a good worker and that he never had any occasion to write up Jacobs for poor work. On the date of his discharge, May 8, 1958, Jacobs was working on the second shift, the hours of which were 2 to 10 p.m. In addition to his maintenance mechanic duties, he also performed those of watchman and operated a punch clock. On the night of his discharge, Jacobs worked in the machine shop until about 6 p.m. and then made his rounds with the punch clock. He put in some light bulbs that were burned out, repaired a blower that had broken down, and cleaned up all six of the blowers. He also made his 8 o'clock rounds of the plant and returned to his work in the machine shop. At 9:30 p.m., while Jacobs was working at his lathe, Maddox came into the plant and stood for a few minutes watching Jacobs work. Then Mad- dox said, "Jake, let's go upstairs, I've got something to show you." Jacobs stopped his lathe and went upstairs with Maddox. Then Maddox said, "You see that stud up there. I've been noticing this for two days, why haven't you fixed it." Jacobs replied, "Well, you [could] have been noticing it practically ever since you been here if you wanted to. That buggy broke about two weeks ago and me and you took it down and you just put the stud back in yourself." Maddox then said, "I can't put up with this any longer. I'm going to have to let you go." Jacobs responded, "Okay." Jacobs testified without contradiction that the stud in question had been installed by him and Maddox and that the stud was too long thereby causing play in the wheel. He further testified that in addition to himself, there were two men and Maddox who did maintenance work on the first shift and one on the third shift, anyone of whom could have repaired the stud. . Maddox testified that Jacobs' work was bad from the time he took over as master mechanic on January 27, 1958, until he discharged Jacobs. Maddox testified that Jacobs was not performing the work which he required of the first shift man so he transferred Jacobs to the second shift and the second shift man to the first shift a few days after Maddox's arrival at the plant.17 His asserted reason was that Jacobs' work at the lathe and in making parts for the plant's machinery was not good.18 Maddox further testified that on February 20, he asked Jacobs to clean the heads of the spinning frames and to have them ready for the painters who were coming in the next morning to paint. Maddox further testified that on February 21, he ob- served that Jacob had not properly cleaned the frames, and that the feet and sides of the frames were caked with dirt and gummed up and, therefore, the painters had to clean and scrape them before painting. Maddox testified that when he called this to Jacobs' attention, the latter said, "Well, I didn't know you were going to paint all the way down." Maddox allegedly prepared a writeup of this reprimand on February 20, 1958 (Respondent's Exhibit No. 3). Maddox further testified that on 17 Jacobs testified he was transferred to the second shift 3 days after Maddox's arrival. 19 Although Maddox allegedly told Jacobs this on several occasions, there was no writeup of these reprimands and no writeup of the alleged reason for transferring Jacobs to the second shift. DAN RIVER MILLS, INCORPORATED 1017 February 24, 1958, he instructed Jacobs to replace all the burned-out light bulbs in the mill and that on February 25 at 6 a.m., he found that there were "quite" a num- ber of burned-out bulbs, especially in the weaveroom. Maddox allegedly spoke to Jacobs that afternoon when the latter reported for work and Jacobs explained that he did not have the time to replace all of them and he had replaced all that he could. Maddox testified that he prepared a writeup of this reprimand on the morning of February 25, 1958 (Respondent's Exhibit No. 4).19 Maddox also testified that there was a power failure in Aliceville on May 1, 1958, and that because of it, he became concerned with the water level in the boiler which, without sufficient water, might blow up. Under normal conditions, the boiler is automatically maintained with sufficient water by electric power.20 Maddox testified that he went down to the plant and asked Jacobs whether he had checked the water level in the boiler, the importance of which he had allegedly impressed upon all the maintenance employees when he first became master mechanic at the Aliceville plant. According to Maddox, Jacobs said he had not thought about it. Maddox testified that he and Jacobs went down to the boilerroom, found the water below its normal level in the gauge, and added water by steam jet. In the writeup of this incident (Respondent's Exhibit No. 5), Maddox said, inter alia, "Jake is not doing his job and cannot be trusted with it." Concerning the incident which immediately preceded the discharge of Jacobs, Mad- dox testified that he came down to the plant to see whether a defective overhead cleaner, which he had observed for several days but had not called to Jacobs' atten- tion, had been repaired, saw that it had not been , and then showed it to Jacobs. Jacobs said that he would get at it the first thing on the next workday but Maddox replied, "No, Mr. Jacobs, I will fix it. I can't use you any more." In the writeup which he prepared in connection with this incident (Respondent's Exhibit No. 6), Maddox not only referred to "the overhead cleaner [which was] in danger of burning up" but also to the fact that Jacobs' work on studs and bushings had to be remade before they could be used. The reference in the writeup to improperly made studs and bushings had nothing to do with any current reprimand. According to Maddox, in February 1958, Jacobs had proved incapable of making studs and bushings to the satisfaction of the "over- hauling overseer." Maddox testified that he erroneously failed to prepare a writeup at the time this occurred. According to Maddox, Jacobs, who worked on the second shift, was asked to make the studs and bushings on a few occasions when the first shift crew who regularly did this work, had not finished enough of them for the overhaul crew. Maddox testified that the studs and bushings made by Jacobs did not fit and had to be remade by the first shift crew. I do not believe Maddox's testimony in this regard, not only because of the absence of a writeup thereon, but also because I do not believe that Jacobs would again be asked to make them, if on the first occasion he did so, his work required redoing. Indeed, the assignment of such work to Jacobs is inconsistent with Maddox's alleged reason for transferring Jacobs to the second shift, his alleged lack of skill at the lathe, and in making machine parts. Employee Hall, the maintenance mechanic who was transferred to the first shift when Jacobs was transferred to the second, testified for Respondent that while he was working on the second shift, he has asked to make over some studs which Maddox said had been made on the first shift and did not fit the bearings. This testimony other than contradicting Maddox as to the shift on which the defective studs were made, does not, of course, establish that the improper studs were made by Jacobs. The overhauling overseer, Eley Champion, also testified for Respondent that in the early part of 1958, while he was working at the Aliceville plant over- hauling spinning frames for 6 or 7 weeks, studs made by Jacobs were too small and had to be remade. When asked how he knew that the undersized studs were made by Jacobs, Champion testified that Jacobs was the only man there and that at that time Jacobs worked on the first shift and Maddox was the master mechanic. Since Jacobs was transferred by Maddox to the second shift 3 days after Maddox came to Aliceville as master mechanic, Champion's testimony that Jacobs worked on the first shift was not true. A fortiori, Champion's testimony as to how he knew that it was Jacobs who made the undersized studs is without foundation and I therefore do not credit Champion's testimony that the defective studs were made by Jacobs. 10 Thus, this writeup was made even before Maddox asked Jacobs for an explanation of his alleged failure to replace the burned-out bulbs and despite the fact that as far as Maddox knew, Jacob's explanation , that he replaced as many bulbs as he had time for, was true. 2O Under emergency conditions , water could be added either by steam jet or, in the absence of steam pressure, by manually operating the valves to the city water lines. 1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When this inconsistency in Champion's testimony was called to Respondent's atten- tion, it recalled Champion to the stand and he then testified that in his previous testimony, he had been alluding to his own first shift which was 6 a.m. to 6 p.m. Since there was no testimony that the overhauling crew worked on more than one shift, I also do not believe Champion's testimony in this respect. Employee Hall also testified that about 2 weeks before Jacobs left, a motor burned out allegedly because of the failure of Jacobs to clean the blowers. Hall also testified that motors frequently burn out, that,a motor in the weaveroom burned out 3 weeks before the hearing in this case because of the failure to oil it, and that he had never heard of anybody being fired for that.21 On the record before me, I do not credit the reasons asserted by Maddox for his discharge of Jacobs. As aforestated, I do not regard Maddox as a credible witness and his testimony in respect to Jacobs fortifies my lack of regard for his veracity. I base this conclusion not only on the reasons set forth to connection with my consideration of the discharge of Dunlap, but on the following: 1. After 23 years of service which in all respects was satisfactory to Jacobs' super- visor, Cochran, and for which he was frequently complimented by Cochran, he was almost immediately regarded by Maddox as incapable of properly performing his work. 2. Although Jacobs allegedly improperly made studs in February 1958, there was no writeup for this poor work at the time it allegedly occurred and none when he was transferred from the first to the less desirable second shift 22 3. The testimony of Maddox regarding Jacobs' alleged failure to clean the spinning frames for painting was both confused and contradictory. On direct examination, he testified that he instructed Jacobs to clean the frames because the painters were coming in the next morning to paint. On cross-examination, Maddox testified that he gave Jacobs instructions to clean up the frames 3 days in advance of the painting because there were so many of them, they could not be cleaned up in 1 day. On direct examination Maddox testified he gave Jacobs the instructions to clean the frames on February 20 and the painting started on February 21. On cross-examina- tion, Maddox testified he gave Jacobs the instructions on February 19 and the painting started on February 22. On direct examination, Maddox testified that he observed that the frames had not been properly cleaned on February 21, allegedly the day the painting started. On cross-examination, Maddox testified that the paint- ing started on the weekend of February 22, Washington's Birthday, and that he did not pay too much attention to the condition of the frames until Sunday (February 23) which is not the day the painting started. On direct examination, Maddox tes- tified that when he called Jacobs' attention to his failure to clean the frames properly, the latter said, "Well, I didn't know you was going to paint all the way down." On cross-examination, Maddox testified that when the improper cleaning of the frames was called to Jacobs' attention, he said that the reason he had not cleaned around the feet was because "the lights weren't sufficient." At first Maddox testified that Jacobs should have been able to clean 20 to 25 frames in a single 8-hour shift. When his attention was directed to the fact that Jacobs had not been relieved of his regular duties, he testified that Jacobs should have been able to devote 5 to 51/2 hours to the frame cleaning and to clean 15 to 18 frames in 1 shift. Finally, as aforestated in connection with Dunlap's discharge, the writeup on Jacobs for his alleged failure to clean the frames was dated and allegedly executed on February 20, 3 days before he even discovered the improper condition of the frames. Even if I believed Maddox's testimony, the writeup was exaggerated because it stated "his work was useless" whereas his testimony was that only the bottom 6 inches of the frames which were 42 inches wide and 44 to 46 inches high had not been cleaned.23 21 There was no testimony by Maddox regarding a burned-out motor and no writeup of Jacobs therefor, although, as aforestated, Maddox wrote up such trivia in respect to Jacobs as failure to replace light bulbs. A fortiori, it is apparent that the burned-out motor was not considered by Maddox when he discharged Jacobs and it is, therefore, unnecessary for me to determine whether Jacobs was, in fact, responsible therefor. 221 regard the mention of studs and bushings in the makeup on May 8, 1958, the date of Jacobs' discharge, 3 months after the alleged improper work as an effort to bolster the reasons asserted for the discharge. 231 place no reliance on the testimony of James Cochran regarding this incident. The latter's testimony that Maddox told him Jacobs was supposed to clean the frames is clearly hearsay. His testimony as to when he painted the spinning frames was confused, contradictory, and unreliable. DAN RIVER MILLS, INCORPORATED 1019 4. The light bulb incident, even assuming Maddox's testimony about it were believed, indicates a propensity on his part to criticize Jacobs. Thus even on Mad- dox's testimony, Jacobs was written up for failure to install light bulbs even though he said he had put in as many as he had time for and Maddox admitted that he did not know that Jacobs' statement was untrue. Moreover, the writeup was executed even before Maddox asked Jacobs for an explanation. 5. Similarly, Maddox's testimony regarding the boiler incident, even if accepted as true, is exaggerated and discloses a propensity for finding fault with Jacobs. Maddox testified that a shortage of water could blow up the boiler and the plant. The record shows that the boiler was provided with a safety or soft plug which acts as a safety valve to allow the escape of steam pressure when the water level was too low. Thus, yin order for the boiler to blow up, it would be necessary, not only for the water level to get too low, but it would also require the nonfunctioning of the safety valve or soft plug provided for the very purpose of preventing the buildup of excessive pressure. Even on Maddox's version, the water level although lower than normal had not reached any condition of the danger. Furthermore, if Maddox was concerned only with plant safety and not with fault finding, he would have instructed Jacobs by telephone to check the boiler instead of going to the plant in person to see whether it was low. Indeed, since the course of action allegedly pursued by Maddox consumed more time than telephoning Jacobs, Maddox ap- parently was more interested in finding fault with Jacobs than in the alleged danger to the plant. 6. The final incident immediately preceding Jacobs' discharge as to which Maddox testified discloses that Maddox was seeking an excuse to discharge Jacobs. Maddox testified he had observed the dangerous conditions of the blower several days before he called it to Jacobs' attention because he wanted to see whether Jacobs would observe it 24 Thus, as in the case of the alleged boiler incident, Maddox's own testimony clearly discloses that he was more interested in finding fault with Jacobs and an excuse for firing him than with maintaining, preserving, and protecting the plant's admittedly rundown equipment. . On the record, it seems clear to me that Jacobs had such a multiplicity of duties that if, indeed, he missed observing defective equipment or failed to repair all that he observed, it was due not to any lack of ability, effort, or interest on his part, but solely to lack of time. I believe and credit Jacobs' testimony that prior to the night of his discharge, he was not reprimanded for poor or insufficient work and for the reasons aforestated, I do not believe any of the writeups or credit Maddox in respect to Jacobs' alleged shortcomings.25 4. The discharge of John B. Hubbard John B. Hubbard was employed by Respondent and its predecessor, Alabama Mills, at the Aliceville plant since 1932. He was discharged on May 8, 1958, after 26 years of employment in the mill. Prior to his discharge, Hubbard worked as a loom fixer on the first shift from 6 a.m. to 2 p.m. Hubbard testified in the hearing in the prior case to the effect that he had signed a union authorization card. After that hearing, which took place in July 1957, Hubbard attended a union meeting on February 28, 1958. At this meeting, Hubbard paid dues to the newly chartered union local and accepted union authoriza- tion cards for distribution to fellow employees. Since then, Hubbard has distributed a few cards to employees of the Respondent. Hubbard testified that he had a heart attack in November 1957, and, as a result, was out from work at the plant during parts of November and December 1957 and January 1958. He was told by the doctor to take it easy when he returned to work. After his return to work, Hubbard, who had been a satisfactory employee before his 14 On direct examination, Maddox testified he noticed the condition of the overhead cleaning system in the spinning room for a day or two. On cross-examination, he testified he observed the improper condition of the equipment for 3 or 4 days. Maddox was asked why, if he found Jacobs to be such a poor and incapable em- ployee when Maddox became master mechanic, he did not promptly fire Jacobs. Maddox replied that it was because of the number of years Jacobs had worked for the mill and his hope that Jacobs would improve. Maddox showed no similar consideration in re- spect to Dunlap, an employee with 14 years' service in the mill, whom he fired within 1 month after he became master mechanic. I therefore do not credit Maddox's testimony in this respect. 1020 DECISIONS OF NATIONAL . LABOR RELATIONS BOARD heart seizure, was admittedly criticized on a number of occasions by his supervisor, Willie Davis, for the manner in which he performed his work. On the day of his discharge, Hubbard failed to fix a broken threadcutter on one of the looms. The broken threadcutter had been observed by Supervisor Davis at 5 a.m. before Hubbard's shift began and he did not "flag" the loom in order to see whether Hubbard would see and repair it when he made his initial round of the looms at the start of his shift. Hubbard did not repair the broken threadcutter that morning. Later that morning, Davis instructed Hubbard to see Plant Superintendent Dockery in his office. Dockery told Hubbard that he would have to fire him. Hubbard asked what it was all about and Dockery replied that Davis had made six writeups on Hubbard for bad work and lack of cooperation. At Hubbard's request, Dockery read a few of them to him. Hubbard stopped Dockery and said that the writeups were nothing but a bunch of lies. Dockery then told Hubbard that he had failed to repair a threadcutter on one of the looms. Hubbard replied that he did not repair the threadcutter to see if the second shift man would fix it, but that apparently the latter had also skipped it. Hubbard's supervisor, Davis, testified that after Hubbard came back to work after his heart attack, it appeared to the supervisor that Hubbard was afraid to do his work properly for fear of a recurrence. Davis further testified that on December 18, he had occasion to reprimand Hubbard for not "running his job," "not checking what he should check everyday." (Respondent's Exhibit No. 11.) Davis also testified that on April 28, 1958, he reprimanded Hubbard for not fixing looms which had been "flagged" by the weaver and for not promptly stripping quills. Davis said that on this occasion he told Hubbard that he would have to fix the looms better and that the weaver could not get production with the looms standing idle or unfixed. A third writeup on Hubbard, dated May 7, 1958 (Respondent's Exhibit No. 13) stated that on May 5, 1958, Hubbard left his job to take a smoke while there were five flags on looms which were not operating. Charles Luker, the first shift weaver whose production and earnings were admit- tedly dependent in part on the proper performance of Hubbard's job, testified that Hubbard was a capable loom fixer and good worker. However, Luker admitted that Hubbard had told him that Hubbard's doctor had told him to take it easy. Luker also testified that Hubbard complained to him that instead of helping him, Respondent was trying to kill him 26 Luker further admitted that several weeks before Hubbard's discharge, Hubbard had been reprimanded for failure to pick up quills from the floor. 5. Concluding findings in respect to the discharges of Dunlap, Jacobs, and Hubbard Respondent contends that Dunlap, Jacobs, and Hubbard were not discharged because of their union membership, but for poor work. In support of that conten- tion, Respondent urges that other employees had been similarly discharged for cause, that these three employees were not particularly active in the Union, and that they were only a small part of those who also testified at the prior hearing that they had signed cards for the Union. In respect to Jacobs, Respondent addi- tionally urges as proof of his nondiscriminatory discharge, that Jacobs' wife, who testified in the prior hearing that she signed a card for the Union, was not discharged by Respondent and was still employed by it. Respondent finally contends as to Jacobs that because he was not eligible to be a member of the bargaining unit, "there can be no possibility of a finding of discrimination as to him." The issue for determination in this proceeding is the motivation for the discharge of Dunlap, Jacobs, and Hubbard. I cannot perceive how the discharge of any other employee for inefficiency or poor work can have any probative value in determining the motivation for the discharge of the three alleged discriminatees. Similarly, the fact that other union employees were retained in Respondent's employ is immaterial if the alleged discriminatees were, in fact, discharged because of their union membership and/or activities. As stated by the Court of Appeals for the Fifth Circuit, the retention of other union employees "does not exculpate [Respondent] from the charge of discrimination as to those discharged." N.L.R.B. v. W. C. Nabors Co., 196 F. 2d 272, 276 (C.A. 5). I regard Respondent's contention, that there can be no finding of discrimination as to Jacobs because he is not eligible to be in the bargaining unit for which the Union is the representative, as utterly devoid of merit. No case is cited by Respondent in support of this contention and I know 00 Presumably by insisting on strict performance of his job. DAN RIVER MILLS, INCORPORATED 1021 of none which so holds. Indeed, in N.L.R.B. v. Poultrymen's Service Corporation, 138 F. 2d 204, 210, the Court of Appeals for the Third Circuit rejected a similar contention. In that case, the court said: The respondent objects to the terms of the other requiring reinstatement and backpay to Edna Stewart, because the Board has found that as respondent's secretary who might have access to confidential information pertaining directly to the labor relations of the respondent, she may not be included in the bar- gaining unit . The respondent seems to contend that because she is excluded from the unit, she is not entitled to reinstatement and backpay. This is not the case. The exclusion does not deprive her of the benefits of the Act. The rights guaranteed to employees in Section 7 of the Act are not limited to em- ployees in duly constituted bargaining units and the discrimination proscribed by Section 8(a)(3) of the Act is likewise not so limited. Accordingly, I reject this contention of Respondent. There remains the question of whether the three alleged discriminatees were discharged for cause as contended by Respondent or because of their union mem- bership and activity as charged in the complaint. Each of these three were members of the Union and known so to be by Respondent. "While such membership in itself is no bar to the discharge of an employee, it sometimes discloses the real motive actuating an antiunion employer in discharging such employees, notwith- standing other asserted reasons." N.L.R.B. v. W. C. Nabors Co., supra, at page 275. In the earlier case involving Respondent, the Board found that Respondent was hostile to the Union from the outset of its organizational campaign, engaged in various acts of restraint and coercion against its employees and discriminatorily discharged five employees "in order to gain time within, which to undermine the Union and to dissipate its representative status." Dan River Mills Incorporated, supra 27 Respondent's hostility to the Union has continued since the former case. As heretofore found, as late as August 1958, Plant Superintendent Dockery interro- gated employee Bill Jones regarding his union affiliation and threatened Jones with reprisal if he persisted in his support of the Union. In the light of the foregoing and my belief in the testimony of Jacobs and Dunlap and their supervisor, Cochran, that they were capable and satisfactory employees who were never reprimanded for poor work prior to the dates of their discharge, and my disbelief in the reasons asserted by Respondent for the discharge of Jacobs and Dunlap, I am impelled to the conclusion that their discharge by Respondent was motivated by its continuing hostility to the Union and to discourage other employees from adhering to the Union 28 In respect to the discharge of Hubbard, I am satisfied from the entire record, that following his heart attack, Hubbard did not apply himself to his job of loom fixing with the same vigor as theretofore, if indeed he was physically able to do so. Hubbard admitted that he had been reprimanded on several occasions by his super- visor for not properly doing his job and admitted that on the day of his discharge, he had failed to fix the threadcutter to see if the second shift loom fixer would do so. It is not my function in this proceeding to pass upon the morality of Respondent's action in discharging Hubbard, an old employee whose work was admittedly satis- factory prior to his heart attack. For the purposes of this proceeding, it is sufficient n Respondent has not complied with the Board' s order in the earlier case, and, as it has a right to do, is resisting enforcement thereof in the court of appeals. 28 The fact that Jacobs and Dunlap were not outstandingly active in the Union is immaterial. Indeed, the principal union adherents were found by the Board to have been discriminatorily discharged in the earlier case and they have not been reinstated. As heretofore found, Plant Superintendent Dockery told employee Bill Jones that they would never be reinstated. Under these circumstances, further efforts by Respondent to discourage union adherence by an object lesson would necessarily have to be directed against less active union employees. Nor does the fact that Respondent knew 'from the testimony in the earlier case that it had many union adherents in the plant and dis- charged only two dissuade me from the finding that the two were discriminatorily discharged, for as the Board and courts have frequently held,_the discharge of only a few employees for union activities serves as a clear lesson to the others that the employer will not tolerate the Union. "Such discouragement may be effected by making 'an example' of some of them." N.L.R.B. v. Shedd-Brown Mfg. Co., 213 F. 2d 163, 175 (C.A. 7) ; N.L.R.B. v. TV. C. Nabors, supra; Inter-City Advertising Company of Greens- boro, N.C., Inc., 89 NLRB 1103, 1105. 1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and I find that the General Counsel has failed to establish by the required prepon- derance of proof that Hubbard's discharge was motivated by antiunion considerations and not- because he was soldiering on the job. I shall accordingly recommend that the complaint, insofar as it alleges that Hubbard was discharged because of his union membership and adherence, be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Since I have found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent has discriminated in respect to hire and tenure of employment of J. W. Dunlap and Levert Jacobs, I shall recommend that Re- spondent be ordered to offer J. W. Dunlap immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges. As Levert Jacobs has testified that he does not desire reinstatement by Respondent, I shall not recommend that Respondent be required to offer him reinstatement.29 I shall further recommend that Respondent be ordered to make J. W. Dunlap and Levert Jacobs whole for any loss of earnings they may have suffered as a result of the discrimination against them; in the case of J. W. Dunlap, by payment of a sum of money he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, in the case of Levert Jacobs by • payment of a sum of money equal to the amount he would have earned from the date of his discharge until December 9, 1958, the date of the hearing herein; less their net earnings during said periods, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. I shall also recommend that the Respondent make available to the Board upon request, payroll and other records to facilitate the determination of the amounts due under this recommended remedy. In view of the nature of the unfair labor practices committed, the commission of similar and other unfair labor practices reasonably may be anticipated. I shall therefore recommend that the Respondent be ordered to cease and desist from in any manner infringing upon the rights guaranteed to its employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. United Textile Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in respect to the hire and tenure of employment of J. W. Dunlap and Levert Jacobs, thereby discouraging membership in United Textile Workers of America, AFL-CIO, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. By the foregoing conduct and by interrogating employees in respect to their union membership, activities, and desires and by threatening to discharge and to refuse to reinstate employees if they joined or retained membership in, or engaged in activities on behalf of, the Union, the Respondent has interfered with, restrained, and coerced employees in the exercise of their rights guaranteed in Section 7 of the Act, and thereby the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The General Counsel has not sustained the burden of proof of the allegations contained in paragraph 7 of the complaint in respect to John B. Hubbard. 5. The aforesaid unfair labor practices affect commerce within the meaning of the Act. [Recommendations omitted from publication.] 29 Robinson Aviation, Inc., 99 NLRB 196.