Canton Cotton Mills

464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Intervenor were competing to have the disputed work of the cameraman-platemaker, who is engaged in offset preparation work, as- signed to their respective members. ' In awarding the disputed work, the Board found that it was properly assigned to employees -in the existing unit of the Employer's compositors, currently represented by the Intervenor. Accordingly, the employee performing that work was properly within the Intervenor's unit at that time. The parties agree that since the previous hearing there has been no substantial change in the Employer's operations or the duties of the cameraman- platemaker. The record further shows that since the aforesaid De- cision the cameraman-platemaker has been covered by the existing contract between the Employer and the Intervenor. In these circum- stances, we shall exclude the cameraman-platemaker from the unit sought by the Petitioner. We find that all pressmen at the Employer's Memphis, Tennessee, operation, excluding the cameraman-platemaker and all other em- ployees, office clerical employees, guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.] Canton Cotton Mills and Textile Workers Union of America, AFL-.CIO-CLC. Case No. 10-CA-5443. August 26, 196.4. DECISION AND ORDER On April 21, 1964, Trial Examiner Lloyd Buchanan issued his De- cision in the above-entitled proceeding, finding that the Respondent had not engaged in any unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the at- tached Decision. Thereafter, the General Counsel filed exceptions to the Decision and a supporting brief, and the Respondent filed an an- swering 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 McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The 148 NLRB No. 56. CANTON COTTON MILLS- 465 rulings are hereby affirmed:' The Board has considered the Trial Ex- aminer's Decision and the entire record in this case, including the ex- ceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications:' 1. With respect to the alleged unlawful interrogation of Hagin by Foreman Morris, Hagin testified that on the day of his discharge he mentioned the Union to Morris, and said that he had been praying for it; and that Morris in reply asked whether he meant that he had been praying for something that the Bible was against. Morris' testimony was that his remark referred to Hagin's statement that he had been praying for Morris to die. In his later discussion of Hagin's dis- charge, the Trial Examiner credited Morris' version of this incident. Accordingly, we adopt the Trial Examiner's finding that there was no unlawful interrogation of Hagin' by Morris.' 2. With respect to the alleged unlawful prohibition of talk about the Union directed against Phillips by Foreman Henry, the Trial Examiner credited Henry's version of this incident. This version was that as Henry was making his rounds in the weaveroom on Au- gust 5 he heard Phillips' voice through an open window in the wom- en's restroom, but the noise of the looms prevented him from hear- ing what she said;' that as he continued his rounds he saw one of her 1 Respondent contends that it was prejudiced by the Trial Examiner 's ruling refusing to require the General Counsel to produce pretrial statements of certain witnesses for the General Counsel pursuant to Section 102.118 of the Board ' s Rules and Regulations, Series 8, as amended . As the Respondent first requested these statements after the wit- nesses had been examined , cross-examined , and excused , we find no merit in this conten- tion. See Nachman Corporation, 144 NLRB 473 , footnote 1, and cases cited. The General Counsel contends that the Trial Examiner 's ruling, which required the General Counsel to produce, pursuant to Section 102.118, questions and answers prepared from a witness' pretrial affidavit , was erroneous . The record indicates that these ques- tions and answers were counsel's own pretrial notes in summary of the witness ' affidavit which were used in preparation for trial with respect to the witness ; that the answers were not different in any respect from the witness ' affidavit, a copy of which had been given to the Respondent by the ' Geneial Counsel ; and that these 'questions and answers were not read or signed by, or discussed with, the witness before trial .' Accordingly, these questions and answers were not statements "approved or adopted" by the witness which required their production under Section 102118 , or the principles enunciated in Jencks v. United States, - 353 U.S. 657 ; or the "Jencks :Act," 18 U S.C, Sec. 3500. Louisiana Television Broadcasting Corporation, 142 NLRB 55, 64 , footnote 27. Cf. Campbell v. United States, 373 U.S. 487 . In any event, however, the General Counsel does not contend, and it does not appear, that the production of these questions and answers with respect to witness C . G. Bagwell constituted prejudicial error, inasmuch as several other witnesses ,testified to the events testified to by Bagwell... 2 In the;absence of exception thereto, -,we adopt pro forma the Trial Examiner's findings that no unlawful threats were made by Foreman Kelley to Page, and that the discharges of Hagin and Phillips were not unlawful. - 8 Under the Board's established policy not to, overrule a Trial Examiner's credibility findings unless a clear preponderance of all the relevant evidence convinces us that they were incorrect, we find no basis for disturbing, this or any other credibility finding made by the Trial - Examiner is this case. Standard,Dry Wall Products , Inc., 91 NLRB 844, enfd. 188 F. 2d 362 ('C.A. 3). 4 According to Phillips, she had asked three other employees, while all four were eating lunch, whether they had signed union cards. 760-577-65-vol. 1'48--31 466 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD looms stopping, her job being'to fill the batteries on the looms to, keep them running, and he -then saw- her approaching from the restroom; and that he then called her into the office, where he spoke to her about letting her loom run down and said she would do better to spend more time on the job and less in the restroom, to which she replied that she had too much work to do and that conditions would be better if the Union got in.' Henry also denied Phillips' testimony that he told her he had heard everything she said in the restroom and that she was not to talk about the Union. Upon the basis of Henry's credited testi- mony,e.we find that Henry remonstrated with Phillips only about let- ting her job run out and did not tell her that she was not to talk about the Union. We find, therefore, that Henry did not unlawfully, prohibit Phillips from talking about the Union.' 3. The General Counsel also contends that Overseer Smithwick unlawfully prohibited Phillips from talking about the Union when he discharged her. As found by the Trial Examiner, Smithwick dis- charged Phillips on August 22 for excessive absenteeism. As further found by the Trial Examiner, Phillips herself testified that Smithwick first told her she was fired for this reason, and then asked her if she had been talking for the Union. According to Phillips, the query about talking for the Union was coupled-with a prior query as to whether she had had a "run in" with Henry. Apparently on the basis that this latter query referred to the August 5 Phillips-Henry incident discussed supra, and that Respondent's valid no-solicitation rule with respect to working time could not validly be applied to Phillips' eating time in the restroom, the General Counsel contends that there was an unlawful application of the rule by Smithwick on August 22. However, Phillips had already been discharged for a totally different lawful reason. Moreover, as found supra, Phillips' "run in" with Henry was over Phillips' neglect of her work and not union solicitation. In any event, Phillips testified only that Smithwick made a general reference to her union solicitation, and did not testify that he stated there could be no union solicitation in the restroom during eating time. Accordingly, we find that there is insufficient evidence to support a finding that Smithwick on August 22 prohibited union talk in'the restroom during eating time. Thus, as with the August 5-incident, there is no factual 5Apparently employees are allowed ' to eat " in, or otherwise go to, the restroom only when their work is sufficiently caught up, and they are not allowed to let their jobs run out for any reason. 6 See footnote 3, supra. 7 Accordingly, we find it unnecessary to, and do not pass upon , the Trial Examiner's superfluous findings that Phillips was not on break time but was on working time when she was eating in the restroom , and his intimation that the Respondent's no-solicitation rule with respect to working time could be applied validly to Phillips' eating time in` the restroom. See, however, IF. Sales Company, 82 NLRB 137. CANTON COTTON MILLS 467 basis for a finding that the Respondent on. August 22 unlawfully pro- hibited its employees from talking about'the'Union during their non- working, time. 4. The Trial Examiner found', and-we agree, that Blanton was dis- charged for violating the Respondent's valid rule against union sblic- itation by employees during working hours which interferes with their own or other employees' work. As found by the Trial Examiner, it is no defense that Blanton was off the job at the time of his union solicita- tion; 8 and it is clear that employees Bagwell and-Ray, if not Gearing, were on working time, and that their work was interfered with in viola- tion of the rule. [The Board dismissed the complaint.] B However, we find it unnecessary to, and do not pass upon , the Trial Examiner's addi- tional finding that Blanton, in returning to the plant after his working hours, had no more right there than an "outsider." TRIAL EXAMINER'S DECISION The complaint herein (issued September 18, 1963; charges filed August 23 and 28 and September 11, 1963) alleges that the Company has violated Section 8(a) (3) of the National Labor Relations Act, as amended, 73 Stat. 519, by discharging and failing and refusing to reinstate Robert Lee Hagin, Thomas Carter Blanton, and Kathryn Phillips, because they engaged in union and other protected concerted activities ; and Section 8(a)(1) of the Act by said alleged acts and by interrogating and threatening employees in connection with union activities and desires and pro- hibiting them from talking about the Union on plant premises during their non- working periods. The answer denies the allegations of violation. A hearing was held before Trial Examiner Lloyd Buchanan at Atlanta, Georgia, on October 22 through 25, 1963, inclusive. Briefs have since been filed by the General Counsel and the Company, the time to do so having several times been extended. The Company has also filed a motion to correct the transcript of record (hereby marked "Trial Examiner's Exhibit No. 1"), which is hereby granted without opposition except that in item 14 of the motion, the change made on line 16, page 216, is to substitute "Mr. Marks" for "Trial Examiner." Upon the entire record in the case, and from my observation ' of the witnesses, I make the following: ' - FINDINGS OF FACT (WITH REASONS THEREFOR) - I. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED It was admitted and I find that the Company, a Georgia corporation with a place of business in Canton, Georgia, is engaged in manufacturing textile products; that during the year immediately preceding issuance of the complaint , it sold and shipped textile products -valued at more than $50 ,000 directly to points outside the state of Georgia ; and that it is engaged in commerce within -the'meaning of the Act. It was admitted and I find that the Union - is a labor lorganization within the meaning of the Act. H. THE UNFAIR LABOR PRACTICES" 7 - A. The alleged independent violation of Section 8(a),(1) - 1. Interrogation , ,. - - Hagin testified that on the day of his discharge he mentioned the Union to his foreman , Morris, and said that•he had been praying for it; and that Morris in'•reply asked whether he meant that he had been praying for something that the Bible was against. Morris' 'testimony was that his remark referred to Hagin's alleged state- ment that he, had been praying for Morris to die . - 'I find no violative interrogation here. - - 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Prohibition of talk about the Union a. Henry Phillips testified that she signed a union card at her home and mailed it to the Union, that she attended two, perhaps a third, union meeting, and that the first was held in July 1963. This was later and more accurately placed on August 4, the second meeting being held a week later, these dates conforming with the allega- tion in the complaint concerning August 7. Foreman Henry, an intelligent witness whose credibility was emphasized by a most intensive cross-examination, testified .that as he was making the rounds in the weaveroom on August 5, he heard Phillips' voice through an open window in the women's restroom; the noise of the looms prevented him from hearing what she said. According to Phillips, she had asked --three other employees, while all four were eating lunch, whether they had signed -a union card, two answering affirmatively, the third in the negative. In the absence ,of any claim that Phillips attempted any persuasion (although she was led on cross- 'examination to add this), this conversation even if overheard by Henry indicated only curiosity or interest and hardly any greater union activity on Phillips' part than on that of the two who said they had signed. There being no testimony that Phillips said that she had signed, her interest or support might be less! Henry continued making the rounds and, as he approached Phillips' job 10 or 15 minutes later, he saw one of her looms stopping, her job being to fill the batteries on the looms. He observed that she was approaching from the rest- room, but put another employee (apparently one of the two who had said that they had signed cards) on her job and told Phillips that he wanted to talk with her; because it was too noisy in the weaveroom (my impression as I heard him was that this was injected to support his statement that he had been unable to hear what was said in the restroom) he took her into the office. Phillips testified and Henry denied that he told her that he had heard everything she said in the' restroom and that she was not to talk about the Union. Henry's version is that he spoke to Phillips about letting her loom run down, and pointed out that she would do better to spend more time on the job and less in the restroom, Phillips replying' that she had too much work to do and that conditions would be better if the Union got in. He admitted that Phillips said that she had talked about the Union in the restioom. Either :version indicates that Henry now knew that Phillips endorsed the Union. Suggesting the accuracy of Henry's version that his remarks were directed toward her work is Phillips' later testimony that she told him that nobody could keep the jobs up and that others had let their batteries run out. (This does not itself prove that Henry did not speak of the Union.) Admittedly not given time to eat, employees are supposed to do that only when they are sufficiently caught up with their work. They are not on breaktime when eating, and are not to let their jobs run out, for any reason. Phillips was on working time when she was in the restroom. While maintaining that Henry had reminded her that she was not to talk about the Union in the plant, Phillips did say that he first referred to a letter which the Company had distributed to the employees on August 91 As stipulated, the relevant portion of that letter is to the effect that employees are not permitted to carry on union activities during working hours; if they do so and as a result interfere with their own or other employees' work they will'be subject to discharge. , The General Counsel stated that there is no argument against the letter itself, but rather against the . manner in which, it was -enforced? The,evidence -adduced, however, does not indicate antiunion solicitation or other antiunion activity which, under the James Hotel decision, would warrant a finding of unfair labor ,practice. Nor is there any question of pretextual enforcement of the rule a in connection with Phillips' discharge. As we shall see, her discharge stands on other grounds;, the, Company did not later assert violation of this rule or cite such violation in defense of her discharge. Whether or not we `assume that the letter to 'the employees included a rule against talking generally when it interfered .with work, the paragraph cited cannot itself be found unlawful. Aside from the fact that I would accept his version, Henry was ,'The discrepancy in dates has been overlooked or ignored This is not said. to .en- courage any belated afterthought. . 3 2James Hotel Company, a-Corpordtion d/b/a Skirvin Hotel and Skirvin, Tower, 142 NLRB 761; Walton Manufacturing Company, •126 NLRB 697, 698. • ' F 3 Wellington Mill Division West Point Manufacturing Company, 141 NLRB 819 CANTON COTTON MILLS 469 concerned with Phillips letting her job run out, and he remonstrated with her con- cerning that without any emphasis on union activities beyond that which was declared in the Company's letter I find no interference here b Smithwick While not quite clear, the alleged violation by Smithwick on August 22 appears to be connected with Phillips' discharge on that day If Smithwick prohibited union talk, there is no separate testimony concerning it, or to show that Smithwick went beyond the admittedly lawful letter Such prohibition must be found in the act of discharge, it was thus part of and merged with the alleged discriminatory dis- charge, infra, and need not be separately considered 3 Threat While the complaint alleges threats by Foreman Kelley on August 9 and 13, the General Counsel agreed that the testimony refers to only one alleged threat, this apparently being on August 9 Former employee Page testified that about that date Foreman Kelley told her that he did not want to question her but that it was his opinion that, if the Union came in, the mill would have to shut down for 6 months, he referred to houses blown up near another company's mill, and remarked that he could not live without a job Page allegedly replied that everyone has his own opinion, her own evidently being different from Kelley's Questioned about Phillips' absences, considered infra, Page testified variously that she had herself been absent on Sunday nights, that she was out one Sunday night, and finally that her earlier statement that she had worked every Sunday night was wrong Later Page was reluctant to the point of withholding the truth when she testified that, because she worked with her head down, she could not tell how many Sunday nights Phillips, whose job adjoined hers, missed, that everybody talked about everybody else who was absent, but that they did "not exactly" talk about Phillips' Sunday night absences, but finally that Phillips seldom came in on Sunday nights, and the girls talked about it These elements of unreliability in Page's relatively brief testimony prompt me to accept Kelley's version of what he said to her According to Kelley, he issued no threat or warning of company action except as it might react to such violence as had occurred at another mill during a strike He did not say that the Company would close down for 6 months if the Union came in, but rather that another company had shut down for such a period because of violence brought on by a strike Nor was his statement that he could not live 6 months without work a threat of closure, he was concerned with the possible result to himself of violence which he feared would erupt While the Union might object to the suggestion that organization of the plant might be followed by a strike and violence, such a statement is not a threat of closure as alleged Here it must be recognized that the untoward results which Kelley mentioned would not depend in the first instance on company action, but were described as set in motion by others and reasonably resulting from the acts of others This is basically different from a statement, for example, that the plant would be closed if the Union came in, a distinction which has for a long time been recognized 4 B The alleged violation of Section 8(a) (3) The issue of discrimination presents no great problem in this case However presented and with whatever attempts at forcefulness and thoroughness the facts are in each instance clear and clearly to be discerned after removal of much in- consequential and even irrelevant detail, which can be characterized as little more than "talknophical assumacy" (not my own coinage), this because or in spite of the fact that counsel for both sides pressed, prodded, and probed outrance All of the details and bits of evidence submitted by both sides, many of them trifling, were carefully if less than breathlessly followed at the hearing, and all have been re- 4 See for example, N L R B v TV C Nabors, d/b/a W C Nabors Company, 19G F 2d 272 276 (CA 5) "As to the statements as to the consequences which might follow adherence to a union R lien statements such is these are m'ide by one who is a part of the comp'ini in in it,ement and NN ho has the power to change prophecies into realities, such statements, whether couched in l'tngu`ige of probability or certiiuty, tend to impede and coerce employees in their right of self-organization, rind therefore constitute unfair labor practices " 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD viewed since. To cite all of them would lengthen this Decision 5 to the extent that the hearing itself was prolonged. This is not to say that none of the details not here cited is pertinent. But an item although pertinent may be so trifling that its submission and the expectation, not- to mention insistence, that it be cited and analyzed may indeed approach impertinence. We must not so concentrate on details or fragments as to fail in our synthesis and ignore the totality. While many items must be admitted to be arguable in the sense that they have been strenuously argued, neither separately nor collectively are they persuasive. Indeed, with the clear lack of merit, cerements might well have been provided at an earlier stage of the ,proceeding. In addition to the bases for the findings and conclusions herein, and the salient testimony relevant thereto, I shall attempt to -refer specifically to all of the items cited by counsel in their briefs; surely the parties will not be heard to complain (this is not to say that they will not) that what they have not themselves argued in their briefs is not here argued about. 1. Hagin - - Hagin had for some time, since well before the commencement of union activities, complained about his wages, his workload, and the assignments given him by Fore- man Morris. He signed a union card (whether a few days or a,few weeks before his discharge, and whether at home or at a union meeting are unimportant details except as they reflect on his credibility) and attended one union meeting before his discharge and one after it: Morris on August 6, 1963, asked as they passed in the warehouse how things were going, and Hagin replied that it was rough but he -thought that it would ease up in a few days. When Morris then asked him what he meant, Hagin replied that it looked as if the Union were coming in, and allegedly added that it would provide some relief, and he had. been' praying for it; and that Morris was a false teacher and a false prophet, having charged Hagin with praying for something the Bible was against. According to Hagin, this was in connection with his statement that he prayed for the Union to come in. Morris' version was that he referred to Hagin's prayer that Morris die. Hagin did finally acknowledge that he said to Morris that if his own wife were a drawing tender he would whip Morris for making her work so hard-, this prompted by the sight of another woman working very hard at the tender. Despite this, Hagin earlier indicated that with no apparent reason Morris taunted and incited him to attack him. There was no attack. I credit Morris' version that Hagin said that he had been praying for, the drawing band to be taken out of bondage, called Morris a hypocrite, and threatened to flat- ten him. We need not detail the testimony that Hagin was and continued in a state of excitement and that,Morris later told him to return to work. ' When Overseer Mize arrived,' Morris related to him what had occurred. Mize sent for Hagin, ' questioned him in Morris' presence, and then discharged him for what adds up to insubordination 'and threats. Close-on the heels of Hagin's denial that he threatened either man at that time, came his admission that he did say that he would whip both of them for making her work so hard if his wife were a drawing tender. (I have not overlooked Hagin's testimony that he denied to Mize that he had threatened Morris and, on cross-examination, that he told Mize that Morris had tried to get, him to fight; nor several unreliable elements in Mize's testimony.) Whatever Hagin's motive, his earlier and later threats were bold, insubordinate, and provocative; however righteous his indignation, the threats were unwarranted 6 In the light of his admitted threats after his repeated denials that he had threatened Morris first and then both Morris and Mize, and his various inconsistencies and admitted errors, I do not credit Hagin's denials and do 'credit the testimony that he was insubordinate, abusive, and threatening to his supervisors. I find that he was discharged for threatening Mize and Morris after earlier threatening the latter. If variance can be discerned between some of the testimony concerning the reasons for Hagin's discharge, as this was elicited first one way and then another, and the reasons as stated on his separation notice, the-threats, abusive language, and in- subordination as described in the notice are admitted. ' While at least partially explored at the hearing, such questions as how success- ful Hagin would be if he attacked Morris, and whether the latter was fearful, are quite irrelevant. It is repetitious to note that Hagin declared his intention, threaten- ing even if conditional, and his presumed ability. - 5 "Advice to a Young Lawyer," 1 The Works of Charles Sumner' (Boston, 1874) 145: On trifling points nor time nor talent waste, A sad offense to learning and to taste .. . . -Joseph Story 6Deut. 32 35(a) ; Rom 12:19(b). CANTON COTTON MILLS; - 471 The problem here is not one of dissecting otherwise innocent or ambiguous acts by, the Company. Findings and conclusions with respect to this and the other dis- criminatees would here be affected, not merely by the Company's attitude or animus toward the Union, but by a possible finding that it would have acted differently and not have discharged these employees but for its opposition to the Union. The evidence received does not show such a pretextual aspect in Hagin 's discharge.? The issue of condonation was- injected by -Hagin's reference to a threat- which he made to Morris 3 or 4 months- before and for which he was neither reprimanded nor discharged. (Hagin testified to this while denying that he had ever been in- subordinate.) Mize did not appear at all certain as he testified that he did not recall any such threat. But both Mize and Morris testified that the latter did not report any threat prior to that of August 6, so that Mize had no knowledge of it although, told that Hagin ,had now threatened Morris, he testified that he , did not call Hagin in to discharge him. But Hagin then threatened Mize himself and Morris in his presence. It does not appear that such conduct as Hagin 's on the day of his dis- charge would have been condoned but for his union activity -or expressed support of the Union. , Insofar as the allegation of refusal to reinstate is concerned, there is no evidence of postdischarge facts which suggest unlawful discrimination. The duty, if any, to reinstate depends on the legality of the discharge. 2. Phillips - Phillips was employed from May 22 to August 22, 1963, working on the midnight to 8 a.m. shift. The extent of her union activities has been noted supra. August 21 was the last day on which she actually worked. Three written warnings or person- nel memo reports had previously been given to her concerning her absences. Only the last of these bore the additional reference to her failure to report or call in, and Henry testified that she might have called someone else . All referred to various and frequent absences, for which she was first cited 2,weeks after her employment began and well before the commencement of union activities. Because of the reference to Phillips' failure to report, considerable testimony was received concerning her attempt to report her August 22, absence. The most persua- sive on her behalf in this connection was that. her foreman left his home for the mill before she attempted to reach him; but- this does not explain her alleged in- ability to get a response from others at his home. Phillips' unreliability as a.witness is emphasized by her attempts , to minimize her- absences,-infra. - Aside from the question whether, even if she had made every reasonable effort to report (her workcard indicates three absences without report), discrimination would be found because of the discharge where the Company was again compelled to obtain a replacement at midnight,, it is. clear that the gravamen of- the complaint against Phillips was her excessive absence.. The. inconvenience caused the Com- pany was great even if she did. call in shortly before the beginning of her shift. I credit the testimony of Smithwick, Phillips' overseer, that he told her on August 22 that he was compelled to let her go because of her excessive absenteeism; and of Whitmire, the Company's personnel manager, that he told her, when she appealed to him, that the records supported the action' taken. Whitmire contradicted Phillips' cryptic testimony that he had previously told, her that he had three others in the "same circumstances," and, continuing concerning these, that he was placing them in the other mill, and he would place her later if she would like to work. Phillips testified 'further that she replied that she' needed work at once; and that she later went back for work but they did not have it. In the absence 'of evidence concerning the alleged circumstances and who the others were, this is -no proof of condonation or waiver 'if, as is not at all clear and not argued by the General Coun- sel, it was so intended. Despite, Phillips' attempts to minimize her absences and her reluctant ultimate admission that she was absent about 5 or 6 days, the records show that she was absent 12 days during her 3-month employment, in addition to several occasions when she worked only part of a day, stating that she was ill. We have already noted the frequency of Phillips' absences on Sunday nights (or Monday mornings). Of the last five but one during her employment (i.e., between July 15• and August 12), she worked only one. Because she attempted to justify some of her absences, we can wonder whether these four were prompted by her own Sunday night convenience and her willingness to assert that convenience by absence. 7 Cf. Morrison Cafeteria Company of Little Rock, Inc., 135 NLRB 1327, 1334, passim. 472 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD Such assertiveness would match that.,when she-told Smithwick.at'the time of her discharge that she would continue to talk, about Abe, Union, and that, he would have to fire everyone if union talk were the reason for her discharge. , Whether or not the Company similarly wondered about these Sunday night absences, it was not precluded from taking action thereon. . 1, ' As for Phillips' mention of the Union and her-testimony that Smithwick had asked her whether she had talked about it, this, raises a, suspicion of the, reason for her discharge althoughPhillips' herself testified that Smithwick told her she was fired before he asked her about-her talking for the Union. .f: With respect to Smithwick's actual knowledge of union activities, we. recall that Henry had spoken with Phillips 'about. "talking union" .when she was away, from her work and permitted a loom to -run down; or that she had at that time volun- teered reference to the -Union. Such knowledge, based on either, :version,' can be imputed to the Company and perhaps to.Smithwick specifically. - But even if Smithwick had in mind that- Phillips had talked about the Union, there is - no evidence that her many absences would have been,, condoned but -for her indicated support of the Union; or that any other employee was absent so much, and particu: larly on Sunday nights.' '. " It is one thing to concede that, although she failed to notify-the Company, ,Phillips made various efforts to do so, and that she so told the Company at the time of her discharge; quite another to charge the Company with discrimination for acting because of her excessive absenteeism. I have not overlooked Phillips' testimony, denied by Smithwick, that the latter told her he did not know why she was being fired, the implication being that he would not himself have taken such action against her; with the further implication (should the I General Counsel' deny these ini- plications, this testimony can -be ignored; as it might well be anyway) that there was no sufficient reason to discharge her. But here and' elsewhere Phillips was too obviously attempting to build a case. Implying' quite the contrary; she had already told her foreman that she guessed that'slie no`;longer'had-a job. However alluring the prospect, the General Counsel' cannot make a silk purse of-a sow's ear. • I find no discrimination against Phillips. " ' ' ' ; ' i:'. ' '' ` ` , • ' This finding would stand even if we were ito'indulge'in the inference that Smith- wick, prior to Phillips" termination, knew of a letter which the Company had sent to 49 union committeemen, and which referred to the Union; 8 or more specifically, that he had learned of Phillips" earlier mention of the Union to Henry. Such an inference is urged in part at least from the fact that Smithwick, as weave room overseer, and 1 of 10 or 12 overseers employed by the' Company (there are 6 in this mill), had approximately 90 under him of a total of 1;250 employees (only 300 are employed in this mill.) .9 ' ' -' - Only because one witness was called :to testify concerning this item alone, and at the risk of indicating that I have overlooked other morsels not herein referred to, I now note that I have not overlooked the testimony concerning Phillips' own evalua- tion and alleged admission to Henry's mother-in-law concerning the significance and normal effect of her absences. 3.' Blanton ' From all of the relevant testimony concerning the events of August 16, it appears that Blanton, who got off from work at 4 p.m., returned to the roller shop for his thermos bottle between 7 and 8 p.m. After getting it and as he went back to his automobile, the janitor, Gearing (misspelled Gearin), called to him from the machine shop, asking about the Union. Blanton testified that he did. not hear what the other had said, and he went into the machine shop. There for about 15 to 25 8 Smithwick testified that the Union had not been mentioned to him and that he had not known of this letter prior to Phillips' discharge. Thereafter he was not'certain whether he did actually know of the letter at the time. He had seen union literature distributed at the other mill. . 6 The two company plants are jointly involved in the union relationship, two of the alleged discriminatees having been employed in the No. 1 mill, the other in No 2 While 65 is the next highest number of employees under 1 overseer in the No.'1 mill (after Smithwick's 90), it is arithmetically clear that at least 1 and perhaps several or all of the overseers in the other mill supervised many more of the 950 employees there The organizational setup as described indicates that Smithwick is at a third or lower level of management. Conceivably also, Henry's knowledge of Phillips' support of the Union may have been transmitted to him - - --- ...CANTON. COTTON, MILLS - 473 minutes he spoke to Gearing-and Bagwell,lO,and, Ray, two maintenance men who soon joined him. A fifth employee, Floyd, listened in for about 5. minutes: Wood, shift foreman in the cardroom, came into the machine shop to make a telephone call and was present during the last 8 to 10 minutes.. • : . + , . ;,, The Respondent attempted to create one more unnecessary issue, when Gearing was confused into saying that he first saw Blanton in the machine shop. But Blanton's testimony that he was outside thab -building, when Gearing called to him was supported by Holbrooke, who investigated the incident for the Company and who is in charge of maintenance and construction and supervises Bagwell, Ray, Floyd, and Blanton. Holbrooke testified, to the Company's knowledge of what had occurred, as the basis for Blanton's discharge:, that ^ the' latter had been called to after he left the. roller shop, and that he then- entered the machine shop. Despite the welter of -testimony adduced by-'one side and then the other and re- peated ad nauseam concerning such matters as who.was present (although both sides agreed on this), who stood where, 'and the distances between them, there is virtually no issue concerning Blanton's return to the plant after work ;or even concerning what he said. The questions here are whether he 'violated, the rule against interfering with the work of-other employees, whether he was discharged for that reason, and whether the Company condoned such,actions by others. It is not for us to say that the discipline was harsh; the issue cis unlawful discrimination. I do not credit Blanton's testimony that he thought he-was talking to Gearing only (this presumably, as if his own impression were determinative, to relieve him of the onus of interfering with the others' work). Not only do the circumstances make this limitation most unlikely since he must have observed the others during that period, but Blanton also testified that "somebody" (he did not know -who) asked him what the Union could do for them: He recalled that Bagwell, said something. Just what Blanton said may not be- important; that he did remain and speak for a considerable time, is. He had been elected a committeeman and,, hold- ing forth on his newly acquired status, he now exhortedrthe men not to let-him down. He testified that he had not come into the machine shop to do politicking, but that the conversation led to that and he was doing it. . • f i - Wood, who as we have noted came-in' from another department and remained-to the end, took no action at the time; the men involved not being under his juris- diction. But he did report the incident to Superintendent' Bagwell (another. by the same name), who in turn apparently passed the report on, to Owen;! company vice president, the latter directing Holbrooke to investigate. Holbrooke investigated on the nights of August 19 , and 20, questioning all three who were under him and had been present on the - preceding' Friday. night, 'Bagwell; , Ray, and- Floyd. On the 21st, Holbrooke discussed the incident"with'Blanton in the'presence of the Tat- ter's immediate supervisor, Holcombe, ' and ' citing, the letter "recently sent out and the rule against interfering with the work of, others, noted 'supra, told Blanton that there was no alternative but discharge since he had interfered with the work of others and had been warned in writing. . ' , -' Blanton's reply to Holbrooke, was that he-must have misunderstood the letter since it referred to the job '( i.e.,;union a'ctivities' during working hours), and he was off the job. Merely to note that attempt at defense is to recognize its insufficiency. While Holbrooke testified that he discharged Blanton for coming back after hours, being where he had no business to be, carrying on union activities, and threaten- ing employees if they did not vote for him, it is clear and was to Blanton from the latter's own testimony that he was charged with interfering with others as already noted. Whether Gearing had been interfered with is not clear. He testified that he had taken a drink of water and was smoking a cigarette; he takes a break when his work is caught up. That Bagwell and ,Ray were kept or lured from their work is clear: it was testified without contradiction that they always have work to do and are never caught up. , As Holbrooke testified, Bagwell and Ray would have been working if Blanton had not been, talking for 15 to 25 minutes. Bagwell admitted that, while he occasionally takes breaks, they are never so long. Nor, 10 For guidance and possible comfort, I now state once again that questions and answers prepared for a witness'! affidavit and reviewed with ,the-witness are statements which the witness has "adopted" within the-meaning of the Jencks decision. (Jencks v. U.S., 353 U.S 657, 667-668 ) More recently I have ruled, otherwise with respect to summary notes made as a witness spoke, the notes not thereafter shown to the witness, read to him, or 'otherwise approved or adopted by him., (The' Powers Regulator Company, Case No. 13-CA-5859 (149 NLRB No. 119].) 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD speaking to them as a committeeman, can Blanton deny responsibility for their presence. In fact he did not make any such denial to Holbrooke when he attempted to explain to the latter only that he had not violated the rule because he was not himself working at the time . We need not determine whether Floyd, the boilerman, was kept from his work and thus interfered with during the 4 to 5 minutes when he attended the conversation, although he had apparently come for a drink of water only. Holbrooke testified that his investigation disclosed that, of the rank-and-file em- ployees, only Blanton and Gearing took an active part in the conversation. Bagwell and Ray told him that they had not entered into it, and according to Blanton him- self, Gearing had merely asked what he thought of the Union. (We recall refer- ence to a question by "somebody .") Although they should have been working instead of listening to Blanton for 5 or 25 minutes, there is no claim that Bagwell, Ray, or Floyd violated any company rule in listening or being interfered with and kept from working, or that failure to take action against them constituted disparate treatment as Blanton suggested when he was discharged and referred to possible action against Gearing. In fact, the General Counsel's position is that the other employees "were not directly involved." It will add nothing to this Decision to point out, in anticipation of objections, that Blanton was not merely an employee away from his work and his work sta- tion who was instrumental in keeping others away from their work for 15 to 25 minutes. However much attention may be given to inconsequentials, the fact is that Blanton's status at the time, after his shift had been completed and he had left the plant and then returned , was little if at all more than that of an outsider although he had reentered the plant because he was an employee. Certainly he had no more business in the machine shop at the time than an outsider. He had no right to be there and he interfered with the work of others. It cannot be properly found that the Company took action against this 1 of 46 (later 51) committeemen because of his union activities and not because of his rule violation or interference with other employees' work. Here again condonation was suggested in the General Counsel's reference to another employee who has been permitted to return to the plant after working hours. But it was not shown that he violated the rule against interfering with the work of other employees. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Textile Workers Union of America , AFL-CIO-CLC, is a labor organization within the meaning of Section 2 (5) of the Act. 2. The Company has not engaged in unfair labor practices within the meaning of Section 8(a) (3) or ( 1) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing finding of fact and conclusions of law , and upon the entire record in the case , I recommend that the complaint be dismissed in its entirety. Anaconda American Brass Company and Local 1078, Inter- national Union, United Automobile, Aerospace and Agricul- tural Implement Workers of America, (UAW, AFL-CIO). Case No. 1-CA-4938. August 26, 1964 DECISION AND ORDER On December 6, 1963, Trial Examiner Ramey Donovan issued his Decision in the above-entitled proceeding, finding that Respondent had not violated the Act as alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed 148 NLRB No. 55.