A & M Karagheusian, Inc.

104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ministrative, and professional personnel, office clerical employees, watchmen, guards, and supervisors as defined in the Act If a majority of the employees in the voting group vote for the Petitioner, they will be taken to have indicated their desire to con- stitute a separate appropriate unit, and the Regional Director con- ducting the election directed herein is instructed to issue a certification of representatives to the Petitioner for the unit described above, which the Board, under such circumstances, finds to be appropriate for the purposes of collective bargaining In the event, however, a majority of the employees vote for the Intervenor, they will be taken to have indicated their desire to remain a part of the existing unit now repre- sented by the Intervenor and the Regional Director will issue a cer- tification of results of election to such effect.' [Text of Direction of Election omitted from publication ] 7 Since at least 1951, the Intervenor has been the exclusive bargaining representative of the Employer's production and maintenance employees , including the moldmakers who are the subject of this proceeding Pursuant to an agreement for Consent Election in Case No 24-RC-64, filed on August 11, 1959, the Intervenor was certified on August 20, 1959, as representative of the production and maintenance unit of Employer's employees excluding "all mold makers who work in the mold shop of the company pending the Board's decision in 24-RC-11602" The tally of the ballots showed that even if the moldmakers had voted, their votes would not have affected the results of that election A. & M. Raragheusian, Inc. and Textile Workers Union of America, AFL-CIO. Case No 10-CA-3748 January 13, 1960 DECISION AND ORDER On August 14, 1959, Trial Examiner Arnold Ordman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor prac- tices as alleged Thereafter, the Respondent filed exceptions to the Intermediate Report and supporting brief Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this proceeding to a three- member panel [Members Rodgers, Jenkins, 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 Inter- mediate Report, the exceptions and brief, and the ent ire record in this 126 NLRB No 14 A. & M. KARAGHEUSIAN, INC. 105 case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER Upon the entire record in the 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, A. & M. Karag- heusian, Inc., Albany, Georgia, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Interrogating employees concerning union matters in a manner constituting interference, restraint, or coercion in violation of Section 8(a) (1) of the Act. (b) Fostering the impression among employees that their union activities are under surveillance. (c) Threatening, or promising benefits to, employees to discourage union membership or activities. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights to self-organiza- tion, to form labor organizations, to join or assist Textile Workers Union of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its plant in Albany, Georgia, copies of the notice attached hereto marked "Appendix." 1 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the Company's representative, be posted by the Company immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Tenth Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT Is FURTHER ORDERED that the allegations of the complaint with respect to violation of Section 8(a) (3) be, and they hereby are, dismissed. ' 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." 106 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, as amended, we hereby notify you that : WE WILL NOT interrogate our employees concerning union mat- ters in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. WE WILL NOT foster the impression among our employees that their union activities are under surveillance. WE WILL NOT threaten, or promise benefits to, our employees to discourage union membership or activities. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Textile Workers Union of America, AFL-CIO, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. A. & M. KARAGHEUSIAN, INC., Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, with all parties represented, was heard before the duly designated Trial Examiner in Albany, Georgia, on May 5 and 6, 1959, on complaint of the General Counsel and answer of A. & M. Karagheusian, Inc., herein called Respond- ent. The evidence presented related to allegations, set forth in the complaint and denied in the answer, that Respondent had interfered with its employees' organiza- tional rights in violation of Section 8(a)(1) of the National Labor Relations Act, as amended (61 Stat. 136, 29 U.S.C. 151, et seq.), and had discriminatorily dis- charged one of its employees , William L. Causey, in violation of Section 8(a) (3) and (1 ) of the Act. Briefs were filed by each of the parties following the close of the hearing. Upon the entire record,' and from my observation of the witnesses, I hereby make the following: - FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT Respondent, a Delaware corporation, operates plants in New Jersey, North Carolina, and Georgia. At its Albany, Georgia, plant, the only one here involved, 'On June 15 , 1959, the Trial Examiner entered an order correcting certain obvious errors In the transcript of testimony. A. & M. KARAGHEUSIAN, INC. 107 Respondent manufactures carpets and during the calendar year prior to the issuance of the complaint, a representative period, shipped more than $1,000,000 worth of finished goods from the Albany plant to customers outside the State of Georgia. Upon these undisputed facts, I find that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Textile Workers Union of America , AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent has contractual relations with the Union at its two New Jersey plants. In the summer of 1958, the Union started an organizational campaign among the employees in Respondent's Albany, Georgia, plant. The campaign culminated in a Board-conducted election on November 12, 1958, which the Union lost. Re- spondent's conduct during the organizational campaign forms the subject matter of the unfair labor practices alleged in the complaint. B. Interference, restraint, and coercion With respect to the issue of interference, restraint, and coercion, the complaint alleges, and the answer denies, that on various occasions during the organizational campaign Respondent's plant manager, Arthur Lauman, its assistant manager, James Barbre, and its superintendent of manufacture, Willis B. Nesmith, inter- rogated employees concerning union matters and informed the employees that their union activities were under surveillance. The complaint also alleges, and the answer denies, that Lauman and Barbre solicited employees to withdraw from the Union and that Lauman made certain threats designed to defeat the unioniza- tion of its employees. The evidence as to these matters is summarized hereunder. 1. Respondent's Judy and August Interviews During a period beginning late in July 1958, and extending into August 1958, while the Union's organizational campaign was in progress, Plant Manager Lauman admittedly interviewed, on an individual basis, about half of the approximately 120 employees in the Albany plant. It is undisputed that much of the discussion at these interviews centered about the Union. According to Lauman, these interviews resulted from reports he had received that the employees were upset because of the organizational activities in the plant and that they were seeking guidance from Respondent's supervisors. Lauman testified that because of these reports, he instructed his supervisory staff to advise the employees that he, Lauman, would be available in his office to answer what- ever questions they might have. On the other hand, a number of witnesses called by General Counsel, testified that they were directed, not invited, to report for these interviews. Thus, employees Lush, Hullett, Miller, and Causey testified that they were directed by Superintendent Nesmith to see Lauman. Employees Butler and Williford testified that Lauman himself summoned them for a conference? While I have no doubt that a number of employees may well have solicited an opportunity to see Lawman because of their concern about the organizational activi- ties, I find it difficult to believe that employees like Hullett, Causey, and others, whose adherence and support of the Union were unconcealed, would have volun- tarily sought out management to seek advice about their conduct with respect to the Union. The tenor of management's discussion with these individuals, set forth in detail hereunder, likewise tends to refute Respondent's claim that they initiated the requests for interviews. Finally, in view of management's admitted concern over the Union's organizational campaign and its impact on the employees, it was wholly natural for management to have sought out those employees whom it knew or suspected to be in the forefront of the union campaign. Accordingly, for the foregoing reasons, I credit the testimony of the employees who specifically stated that they were summoned by management to conferences with Lauman. The evidence is likewise in conflict as to the precise nature of the interviews. Employee Hullett, an avowed union adherent, testified that he had been summoned 2 Employee Griner did not specify who summoned him for a conference, stating merely, "Well, they called me in." 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to Lauman's office by Superintendent NeSmith, and that Lauman, NeSmith, and Assistant Plant Manager Barbre were present during the course of the interview. According to Hullett, Lauman asked whether Hullett really believed in the Union and urged that he reconsider in the event he had signed a union card. Lauman stated that the Union would not be any good in the plant. NeSmith, in similar vein, stated that he himself had once belonged to a union and did not see that it was any good. Lauman, in his testimony, acknowledged that he had had an interview with Hullett, and Barbre likewise acknowledged his presence at that interview. Lauman, however, denied questioning Hullett as to his signing of a union card, stated that he assumed at this conference that Hullett had signed a union card, and specifically denied asking Hullett to reconsider.3 Employee Williford, who later served as union observer in the November 12 election, testified that early in August while he was being treated by the nurse at the plant for a foot injury, Lauman called him to the office. Only Lauman and Willi- ford were present. According to Williford, Lauman started to discuss the Union, and stated that he did not "see how they could operate here in Albany. . . Lauman then asked Williford whether he had attended a union meeting or signed a union card. When Williford gave negative replies to these inquiries, Lauman asked Williford, who was working as a general helper in the warehouse, how he would like a job as a truckdriver. Lauman confirmed that he had seen the nurse treating Williford, that he had told Williford to see him at his office, that they had discussed the Union, and that he had mentioned a truckdriving job for Williford. Lauman, however, denied asking Williford whether he had been to a union meeting or signed a union card, and said that he had mentioned the truckdriving job only as a temporary measure until Williford's foot healed. Employee William L. Causey, whose discharge is discussed later in this report, testified that he was summoned to Lauman's office by Superintendent NeSmith, and that Lauman, Barbre, and NeSmith were present during the interview. Each of the company officials in turn emphasized that the Union was no good. Lauman, accord- ing to Causey, capped the discussion by asking Causey to reconsider his allegiance to the Union, and stated that "some of the boys were sorry they had signed union cards and would try to get them back." Causey also testified that in a second interview held on the following day, Launian told him his background had been good and his work had been good and mentioned the possibility of a better job. When Causey did not commit himself to getting his union card back, Lauman sug- gested that Causey return for a further interview if he made up his mind. Lauman, for his part, testified that he had met with Causey but denied that he had asked Causey whether he belonged to a union, and denied that he had offered Causey a better job. Barbre and NeSmith confirmed that they had been present at Lauman's first interview with Causey.4 Employee Lush testified that he was directed by Superintendent NeSmith to go see Lauman at his office and upon compliance with this directive was interviewed by Lauman and Barbre. According to Lush, Lauman asked if Lush knew about the unionization campaign and went on to state that unions brought mistreatment of employees, strikes, and hardships. Lauman then observed that efforts to start a union in the Albany plant would not work because "the Causey's and the Hullett's would be standing around on the outside, marching around with strike signs and we'd be inside the plant working [whether] the Union won or lost." Neither Lauman nor Barbre testified concerning this interview. Employee Butler had two interviews with Lauman, one in the early part of August when the other interviews were being held and the other in the latter part of August. Butler was somewhat confused as to exactly what had transpired at each of the conferences. However, he recalled generally that the first interview was held at Lauman's direction and that Lauman had asked him about union meetings, whether he knew the identity of the union adherents, and whether he had signed a union card. a NeSmith did not testify concerning the Flullett interview. 4 There was also conflicting testimony as to whether one of the three officials made a comment to Causey that if the Union came in, the employees would probably get a "big fat negro" for a supervisor and whether Lauman said Air Wolfe, a union organizer was a "son-of-a-bitch" as was anyone who worked with him. I do not credit the testimony that Respondent's officials made these statements . The appearance , manner, and de- meanor of the officials concerned, all of whom testified at the hearing, leads me to doubt that they would have made the comments in question, and apart from Causey's testi- mony, there is little, if any, evidence in the record to support a finding that Respondent's officials indulged in this kind of epithet or name calling. A. & M. KARAGHEUSIAN, INC. 109 Butler admitted, however, that the second interview with Lauman was at his own request and that his purpose in seeking the second interview was to dispel false rumors that he was supporting the Union. Lauman, on the other hand, while admitting that he had two interviews with Butler, stated that Butler had initiated both interviews, denied that he had interrogated Butler concerning union matters, and said that he had questioned Butler only as to the identity of those spreading the rumors about Butler so that disciplinary action could be taken. Employees Miller and Griner also testified as to their respective interviews with Lauman. According to Miller, Lauman, Barbre, and NeSmith were present at his interview, and, in the course of the discussion, Lauman asked Miller whether he had heard about the Union and whether he had attended a union meeting. Griner testified that he was interviewed by Lauman and Barbre and, in reply to a question as to what he thought about the Union, declined to answer on the ground that he had friends on both sides of the fence. Lauman, in his testimony, denied that anyone had asked Miller whether he had attended a union meeting, and by implication denied that he had discussed the Union with Griner although admitting that he did not recall too much of that conversation. The conflicting versions of the interviews given by the employees on the one hand and by Respondent's officials on the other cannot be completely reconciled. The margin of difference, however is not substantial. In no instance did Respondent controvert the fact that the interviews testified to by the employees had taken place. On the contrary, in virtually every instance Respondent's officials specifically con- firmed the holding of the particular interviews and corroborated, to a considerable extent, the details of the interviews as narrated by the employees concerned. How- ever, Respondent's officials denied generally, and in some instances denied spe- cifically, that they had interrogated any of the employees concerning union matters, or that they had solicited any of the employees to withdraw from the Union by promises of a better job or otherwise, or that they had threatened the employees with reprisals in the event of unionization. On the other hand, Plant Manager Lauman freely acknowledged that union matters had been discussed at these interviews. Moreover, I am impressed by the fact that the interviews, as testified to by the several employees, fell into the same general pattern, even though the testimony came in some instances from witnesses like Hullett and Causey who were ardent union adherents, or in the case of Butler, from an employee who was not a union adherent and was acutely concerned that he not be falsely identified as such. This circumstance tends to dispel the self-interest which might otherwise tend, consciously or unconsciously, to color the narrative of events related by a partisan source. I am inclined to believe, therefore, that Respondent's officials understated the nature and extent of the union discussion which admittedly occurred at these interviews. Ac- cordingly, in view of all these considerations and on the basis of my appraisal of the various witnesses, I credit the testimony of the employees as to the nature and content of the July and August interviews and correspondingly discredit the testi- mony of Respondent's officials insofar as it is inconsistent therewith. 2. Statements by Respondent's officials conveying the impression that the union activities of the employees were under surveillance The employees at Respondent's plant enjoy a break period at 10 a.m. and 2 p.m. During one of these break periods in the latter part of August, a number of the employees were gathered in the breakroom discussing a penciled notice of unknown authorship which had been taped on the outside of the plant bulletin board and which purported to list the employees who had attended a union meeting the night before. Employee Lush testified that Superintendent NeSmith joined the employees in the breakroom, disclaimed any connection with the penciled notice, but noted that 15 minutes after the employees went to the meeting he knew who they were. NeSmith amplified that statement, according to Lush, by noting that the first fellow who came to the meeting owned a black and white Ford. In a further obvious ref- erence to attendance at the union meeting, NeSmith observed, according to Lush, that some of the boys in the room had "long faces" and that some of them were going to have "a lot longer faces." 5 This was not the only reference by Respondent's officials to a car of an employee being seen at the site of a union meeting. As already noted, employee Miller was interviewed by Lauman, Barbre, and NeSmith. According to Miller, Lauman had c NeSmith denied stating that he knew 15 minutes after a union meeting who was there or that the first man in attendance had a black and white Ford. He testified, 11 however, that "This was general knowledge. Everybody knew about this. . . . 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asked him at that interview whether he had attended a union meeting, Miller denied it, and Barbre challenged Miller's denial. When Miller persisted in his denial. Barbre asked whether he had loaned his car to somebody else on the occasion.6 A third incident conveying the impression that Respondent was keeping the union activities of the employees under scrutiny likewise occurred late in August. Employee Lush had an appointment to see two union officials at the New Albany Hotel. On the way home from the doctor whom he had gone to see because he was sick, Lush stopped in at the New Albany Hotel. A day or two later, Lush was interviewed by Barbre and NeSmith. According to Lush, Barbre told Lush he had been seen going into the hotel at a time when he should have been on his way home. Lush explained that he had an appointment to see two union officials. Lush then asked if he was being followed and protested that what he did on his own time was his own business.? To the extent that there is a variance between the testimony of employees Lush and Miller and the testimony of Respondent's officials respecting the foregoing incidents, I believe, on the basis of my appraisal of that testimony and for the addi- tional reasons set forth in the preceding subsection, that the testimony of the employees more accurately reflects what actually transpired. I, therefore, credit their testimony as to these matters and I find that Superintendent NeSmith and Assistant Manager Barbre made the statements attributed to them by Lush and Miller- 3. Concluding findings Respondent, in its brief to the Trial Examiner, does not argue the legality of the, conduct alleged to be violative of Section 8 (a) (1) of the Act, nor the substantiality of the evidence in support of those allegations. Nevertheless, I have carefully con- sidered the evidence and the law relevant to that issue. I have found that during the course of the organizational campaign, Respondent's top officials called in a number of employees, including avowed union adherents, and questioned them as to union matters. Among the questions directed to the various employees were general inquiries about the Union and their sympathies in that regard, inquiries as to- whether they had signed union cards, or attended union meetings, and inquiries as to the identity of union adherents Coupled with these questions on occasion were statements plainly demonstrating Respondent's opposition to a union at its Albany plant and Respondent's desire that the employees refrain from supporting the Union or withdraw such support if already given. Interrogation of employees concerning union matters, while not in itself coercive, clearly amounts to interference, restraint, and coercion in violation of Section 8 (a) (1) of the Act when it occurs in a context such as that which the record here reveals. Blue Flash Express, Inc., 109 NLRB 591, 593. Graber Manufacturing Company, Inc., 111 NLRB 167, 169; Southeastern Mills, Inc., 123 NLRB 1783. I so find. Superintendent NeSmith's statement to the employees in the breakroom, in con- nection with the discussion of attendance at a union meeting, that some of the boys who had "long faces" would shortly have even "longer faces," and Plant Manager Lauman's remark to employee Lush that a union would not work in the plant because the "Causeys" and the "Hulletts," known as union adherents, would be out picketing whether the Union won or lost, were plainly calculated to instill in the employees an awareness of the penalties of supporting the Union. Conversely, Respondent's suggestions to employees Williford and Causey of better jobs, patently conditioned on their abandonment of the Union, were also intrusions on the em- ployees' statutory freedom of choice in the regard. Threats of reprisal or promises of benefit to induce abandonment of a union are on settled principles violative of Section 8 (a)(1) of the Act. I find that Respondent engaged in such violations here. e Lauman denied asking Miller whether he had attended a union meeting Barbre did not recall whether such a question had been asked, but acknowledged that there was some discussion about Miller's automobile. According to Barbre, Miller "volunteered the information that he wasn't at the meeting and his automobile was not at the meeting" 7 Barbre confirmed that he and Nesmith had discussed the New Albany Hotel incident with Lush Barbre said, however, that the interview was prompted by the fact that Plant Manager Lauman who was attending a Lions Club luncheon at the hotel, had noticed Lush there, and had later inquired of Barbre as to why Lush was not at work According to Barbre, however, he merely inquired of Lush why Lush was at the hotel when he had been ordered by his doctor to go home to bed and when Lush replied that he had an appointment at the hotel that ended the discussion. A. & M. KARAGHEUSIAN, INC. 111 More subtle , but perhaps just as effective in frustrating the organizational drive, was the technique utilized by Respondent of persuading the employees that their union activities were under surveillance. NeSmith's statement that he knew 15 minutes after a union meeting who was there; Barbre's assertion to Miller that the latter had attended a union meeting and his question concerning Miller's car; and Barbre's statement to Lush that he had been seen going into the New Albany Hotel where Lush had an appointment to see two union organizers could not but create the impression among the employees that their union activities were under Respond- ent's careful scrutiny and would necessarily tend to circumscribe the employees' freedom of action in the organizational arena. I find that Respondent deliberately fostered that impression among the employees and that Respondent thereby violated Section 8 (a) (1) of the Act. Idaho Egg Producers, 111 NLRB 93, 103, and cases there cited.8 C. The alleged discriminatory discharge General Counsel alleged in his complaint that Respondent discriminatorily dis- charged and thereafter refused to reinstate its employee, William L. Causey, in violation of Section 8(a) (3) and ( 1) of the Act. Respondent in its answer admitted that it had discharged Causey but asserted that the termination was for cause. 1. The evidence Causey was hired in March of 1955 . After several months he was made an operator on a tufting machine in the tufting department which Superintendent NeSmith supervised. Causey held that job until his discharge on November 6, 1958. Superintendent NeSmith testified that prior to August 1958 Causey had done credita- ble work and, although he had on occasion given Causey an oral reprimand, the quality of Causey's work had not been such as to warrant the more stringent discipline of a written reprimand. In August 1958, however, Causey's production dropped substantially.9 NeSmith spoke to Causey concerning this drop and Causey's production during September went back up to an average of 129.8 yards of carpet per day. The following month his production dropped to 60.06 yards per day, less than half of what it had been.lo During the period between August 1958 and November 6, 1958, the date of his discharge , Causey was active in the Union . He signed a union card , solicited mem- bers, and attended all but one of the union meetings . Respondent adduced testi- mony that on frequent occasions during this period and during working time Causey stopped his machine , engaged in conversations with other employees , solicited in behalf of the Union, and spent undue amounts of time in performing his work. In further support of this testimony Respondent introduced into evidence three forms entitled "Performance Evaluation," dated respectively August 28, September 11, and October 22, 1958, and signed by NeSmith, each of which recited derelictions in Causey's work performance. These forms constituted written reprimands under company practice. It was also company practice to show a reprimand to the em- ployee named therein and ask him to affix his signature . Causey did sign the reprimand dated August 28, 1958, which set forth on its face two incidents during the previous 2 days in which Causey's machine was idle while he engaged in con- versations with other employees. Causey denied that a third dereliction, written on the back of this reprimand and having to do with excessive time spent in chang- ing a roll of jute, was written thereon at the time he affixed his signature . Causey likewise denied, contrary to Respondent's testimony, ever seeing the reprimands dated September 11 and October 22, 1958, and his signature does not appear on these reprimands . The reprimand dated September 11, 1958 , recites that Causey together with his assistant and two men helping part time took approximately 4 hours to s The complaint does not specifically allege, and the preponderance of the evidence in my view would not sustain a finding, that Respondent actually engaged in the surveillance which its statements suggest Albany is a small community and much , if not all, of the knowledge which Respondent 's officials professed could have been obtained in the normal course of their daily activities without engaging in actual surveillance. I It will be recalled that Plant Manager Lauman during the course of his second inter- view with Causey late in July or early in August made favorable mention of Causey's work record as a prelude to suggesting a better job for him. Causey 's production figures for August were not, of course, available at that time. 10 September and October are peak production months In Respondent's operation So far as appears , there was no machine breakdown or other external cause to explain the substantial drop in Causey's production. 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD change three-quarters of a creel on his machine while two other men did the same amount of work on another machine in 1 hour less . The reprimand dated October 22, 1958, recited that Causey because of inattention to his work had spoiled 79 yards of carpet because of "misdraws," thereby causing damage to the amount of about $2,000.11 A fourth reprimand, also signed by NeSmith, was dated November 6, 1958, the day of Causey's discharge. This reprimand set forth that Causey had again been using "on the job" time to solicit for the Union, that he had been called in by NeSmith and told that time for which he was drawing pay was to be used for work and not for union solicitation, that this was Causey's fourth reprimand, and that under the circumstances he was no longer needed as an employee of the Company. The reprimand concluded with the notation by NeSmith "I fired him." A separation notice made out by Respondent, a copy of which goes to the Employment Security Agency of the Georgia Department of Labor, and a copy of which was received by Causey, states that Causey was discharged because he was interfering with the work of the other men (as well as his own) by talking union at the plant during working hours. In this connection Respondent adduced evidence to establish that every 3 or 4 months starting a few years prior to the events here involved, it has posted notices on the plant bulletin boards stating that In keeping with our Plant Policies, please be informed that all employees must refrain from discussing such controversial subjects as religion, politics, and dis- cussions pertaining to organized labor during working hours. Your cooperation is requested.12 Evidence was also adduced that it was company practice to discharge an employee after three written reprimands. Causey, as already noted, denied seeing any but the first reprimand and as to that reprimand, the only one on which his signature appears, denied that the jute incident written on the back of the reprimand was there when he affixed his signature. On the other hand, while denying that he had ever seen the second reprimand concerning his slowness in changing a creel, Causey admitted that NeSmith had orally warned him concerning this incident. Similarly, Causey denied seeing the third reprimand but admits that NeSmith told him on that occasion that he had ruined almost $2,000 worth of carpet on special order and that if he had been watching his work he would have caught the defect. Causey also admitted that he had been talking to a fellow employee, Sperry, about the Union 2 days before his discharge but testified that this conversation occurred just before his quitting time when he had stopped his machine to clean up and that Sperry had initiated the con- versation. Generally speaking, Causey denied any derelictions on his part and with respect to the 79 yards of spoiled carpet insisted that the damage, to the extent there was damage, was not due to his negligence but to mixed lots of yarn. Causey, how- ever, offered no satisfactory explanation to account for the drop in his production in August and the more substantial drop in his production in October just before his discharge. Respondent's records indicating Causey's production drop went unchallenged. The evidence as to the discharge itself is also somewhat conflicting. According to the testimony of Respondent's witnesses, Superintendent NeSmith and Plant Manager Lauman concluded that despite the gravity of Causey's offense in spoiling 79 yards of carpeting, and despite the fact that this had given rise to a third reprimand which normally called for discharge, Causey would be given another chance. Their motivation for this departure from policy was their desire not to exacerbate the union controversy which was already prevalent in the plant. NeSmith told Causey at the time of the carpet spoilage that if not for the existance of union activities at the plant, he would have been dismissed, and if it happened again he would be dismissed. About a month later, NeSmith was told by Toy Walker, head fixer on Causey's shift, that Causey had again neglected his work and the November 6 reprimand issued. In the meantime, NeSmith had also become familiar with the "The carpet in question was being prepared pursuant to a special contract order and because of the misdraws had to be sold, according to Respondent, as "as is" carpeting at a very substantial loss. 12 According to Respondent , the rule had its origin when some "aspiring young preachers" started preaching to the employees with the result that the employees were reading their Bibles and having group discussions during the time they were supposed to be working. A. & M. KARAGHEUSIAN, INC. 113 substantial drop in Causey's October production. NeSmith called Causey n, told him that he was more interested in utilizing his time soliciting union votes than he was in taking care of his job, that he had been negligent in his work, and that under the circumstances NeSmith had no alternative but to let Causey go. Causey's testimony as to the discharge differed in some particulars from that of Respondent's witnesses. Thus, Causey denied being told at the time of the spoiled rug episode that he would be discharged if he were derelect again. Causey stated that at the discharge conference he was accused by NeSmith of talking about the Union to a fellow employee, that he admitted such a conversation, and admitted that he had solicited the employees to vote for the Union. According to Causey, NeSmith said he would not have any talking about the Union in the plant and stated, "As of now, you are fired." Causey said that NeSmith added, "Your buddy, Mr. Wolfe is out at the back gate if you want to talk to him." 2. Concluding findings While there are a number of discrepancies in the evidence relating to Causey's discharge, the basic pattern of events seems fairly clear and is corroborated in large part by the testimony of Causey himself. Prior to the organizational campaign, Causey's work performance was admittedly quite creditable. In August after the onset of the organizational campaign and after Causey became active in the Union, his production went down, went up again in September after management spoke to him about it, and dropped again, drastically, in October. During that period from August up to and including the early part of November, Causey admittedly engaged in union solicitation at the plant. According to Respondent, this union solicitation occurred during working hours, interfered with his production and that of his fellow employees, and resulted in the issuance of four reprimands, the last one culminating in Causey's discharge. Causey admitted receiving only one written reprimand but admitted that he was orally warned on at least two other occasions prior to his discharge. On the basis of all the evidence, including particularly the showing as to the substantial drop in Causey's production, I find that Causey had engaged in union solicitation during working hours and that this activity hampered his production. I find further that Respondent at all times relevant here had a well established and publicized rule-a rule antedating the organizational campaign-forbidding employees to discuss controversial matters, including, inter alia, matters pertaining to organized labor, during working hours.13 The evidence is in sharp dispute as to the extent of the damage to the 79 yards of carpet which Causey produced on October 22, 1958. I find it unnecessary to determine the precise nature and extent of the damage for it is clear that the carpet was defective to some extent, and that Causey was admittedly criticized by man- agement in that regard. Moreover, the spoiled carpet gave rise to Causey's third reprimand which pursuant to company practice, would normally warrant his dis- missal. I credit the testimony of Respondent's officials , however, that they refrained from dismissing Causey at this time because of the friction in the plant already generated by the organizational campaign. I further find that, contrary to Causey's testimony, he was told at the time that if it happened again, that he would be dis- missed in the event of a further offense. I find that the offense which precipitated Causey's dismissal was that set forth in the reprimand dated November 6, 1958, when Causey was again reported to have engaged in union solicitation during working time. Causey admitted seeking to solicit employee Sperry at about 2 45 p.m.-his shift ended at 3 p m.-but said that he had not shut down his machine for the purpose of solicitation, but for "clean up" purposes preparatory to quitting for the day. Whatever his purpose, it is clear that Causey admittedly engaged in solicitation during working time and Respondent could have believed and, I find, did believe that Causey had agam violated a com- pany rule to the detriment of his production and that of his fellow employees The undisputed fact that, as Respondent knew, Causey's production had suffered a sub- stantial drop the preceding month contributed to this belief I find it unnecessary to determine whether NeSmith told Causey at the time of the discharge, as Causey testified, that "Your buddy, Mr. Wolfe, is out at the back gate if you want tc talk to him." Assuming NeSmith made that remark, it would have been consistent with "Employees Williford and Causey denied ever seeing the foregoing rule posted in the plant. Nevertheless, the great preponderance of the evidence supports a finding that such a rule was in effect, that it was posted regularly, and that the employees knew of the existence of the rule 554461-G0-vol 126-9 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his view that Causey was using working time to engage in organizing activity and that after his discharge Causey could either join Mr. Wolfe, the union organizer, in that activity, or complain to Mr. Wolfe about his discharge. I conclude, therefore, that Respondent discharged Causey for the reason stated in his separation notice, namely, that "he was interfering with the work of the other men (as well as his own) by talking union at the plant during working hours." Implicit in this reason and contributing to the determination to discharge Causey was Respondent's knowledge, based on evidence which I credit, that Causey's pro- duction had suffered a substantial drop and that there was a previous record of similar derelictions on Causey's part, attributable in Respondent's view to Causey's preoccupation with union activities in the plant during his working time. General Counsel and counsel for the Charging Party argue for a contrary con- clusion. They urge that Respondent was hostile to the Union that Respondent knew of Causey's attachment to the Union, had sought in the interviews with Causey late in July or early in July to dissuade him from that attachment, and, failing in that purpose, began to find fault with his work merely to furnish a pretext for the dis- charge of an active union adherent before the forthcoming election. In support of this argument, they point out that Respondent's own statement in its separation notice predicated Causey's discharge on the ground that he was "talking union." The argument does have a surface appeal. I have found that Causey's union sympathies were known to Respondent, that Respondent was hostile to the Union, and that Respondent sought, albeit unsuccessfully, to dissuade Causey from support- ing the Union. These considerations certainly warrant close scrutiny of the reason or reasons assigned by Respondent to justify the discharge. Close scrutiny, however, does not advance General Counsel's case. General Counsel and counsel for the Charging Party overlook the fact that the separation notice was framed not merely in terms of "talking union," but rather in terms of "talking union at the plant during working hours." Moreover, Causey's extenuations aside, Causey admitted that his discussion with Sperry, which precipitated his discharge and the separation notice, occurred 15 minutes before quitting time and that he had been soliciting Sperry to vote for the Union in the forthcoming election. Employees, of course, have an undisputed right under the Act to engage in organizational activities. On the other hand, an employer has an equally undisputed right to promulgate and enforce a rule prohibiting employees from engaging in union solicitation or discussion during their working time. Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793, 797-798, 802-803; Peyton Packing Company, Inc., 49 NLRB 828, 843-844. Re- spondent exercised that right here. Moreover, Respondent discharged Causey in the light of its conviction that Causey had a prior history of like offenses, a convic- tion certainly buttressed by the otherwise unexplained drop in Causey's production during this period.14 Finally, it is urged that the employees with whom, according to Respondent Company, Causey had engaged in union discussions during working hours were not discharged or, so far as appears, even reprimanded. Suggested here is the notion that Causey's discharge was the result of a discriminatory application of Respondent's rule against union discussion during working hours. To the extent that such a contention is made, I find that General Counsel has not sustained his burden of proof. As already found, Causey was guilty of a succession of offenses coupled with a low production record. There is no showing that this was true in the case of the other employees. Upon the entire record, therefore, I find that General Counsel has not established that Causey's discharge was violative of Section (a) (3) of the Act, or that the dis- charge infringed upon any of the guarantees of Section 7 in violation of Section 8(a)(1). '4 In this connection it is urged that if Causey's work shortcomings were the real reason for his discharge, the discharge would have taken place when Causey was said to have ruined 79 yards of carpet and Respondent entered its third reprimand. It is argued that by not discharging him on this occasion and discharging him for what seems a lesser offense 1 month later and 6 days before a scheduled Board election to determine whether the employees wanted the Union as their bargaining representative, Respondent revealed its true motivation for the discharge The evidence in the record persuades me, however, and I find, that Respondent withheld its discharge action at the time of the rug spoilage because of its desire not to aggravate the friction already generated in the plant by the union campaign. I find further that the next complaint early in November viewed in the light of Causey's prior conduct and, especially, his low produc- tion the preceding month convinced Respondent that it should no longer withhold dis- charge action. JACKSON MAINTENANCE CORPORATION 115 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The unfair labor practices of the Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic , and commerce among the several States, and tend to lead to labor disputes affecting commerce and the free flow of commerce. V. THE REMEDY Pursuant to the mandate of Section 10 of the Act, I shall recommend that Re- spondent cease and desist from the unfair labor practices found. Notwithstanding that I have exonerated Respondent from the charge that he discriminatorily dis- charged employee Causey, the unfair labor practices which I have found indicate that in order to effectuate the policies of the Act, Respondent should be additionally directed to cease and desist at the very least, from like or related unlawful inter- ference with the Section 7 rights of its employees and I shall so recommend. 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. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed them in Section 7 of the Act, as found above, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)( 1 ) of the Act. 4. Respondent has not violated Section 8(a)(3) of the Act, as alleged in the complaint. [Recommendations omitted from publication.] Jackson Maintenance Corporation and Automobile Mechanics and Helpers, Gasoline Station and Parking Attendants, Local 917, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 2-CA-6389. January 13, 1960 DECISION AND ORDER On August 10, 1959, Trial Examiner W. Gerard Ryan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that said complaint be dismissed. Thereafter, the General Counsel filed exceptions and a supporting brief. The Respondent subsequently filed a brief in reply to that of the General Counsel. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and finds merit in the exceptions of the General Counsel. Accordingly, we adopt the findings, conclusions, and recommendations of the Trial Examiner only insofar as they are consistent with our decision herein. 126 NLRB No. 21.