Marion Manufacturing Co.

MARION MANUFACTURING COMPANY 55 half of the total work force-perform work in other States, the division would undertake such work even in States where divisions other than Greenville now operate. Based on the above, and on the record as a whole, we find that the Employer has failed to show organizational changes warranting a modification in the scope of the divisionwide unit previously found appropriate.' The scope of the unit was found to be coextensive with the Greenville division's operations, and we reaffirm that determina- tion and find that the appropriate unit for collective bargaining within the meaning of Section 9(b) of the Act is as follows : All journeymen plumbers and pipefitters, pipefitter welders and pipefitter helpers employed by the Company in its Greenville division, including but not limited to construction work in the States of North Carolina, South Carolina, Tennessee, Alabama, Georgia, and Florida, excluding all other building trades crafts- man, engineers, draftsmen, foremen (working and nonworking), general foremen, clerical employees, professional employees, watchmen, guards, and supervisors as defined in the Act. As we have now reexamined the unit problem and made our deter- mination, we remand this proceeding to the Regional Director for Region 11, pursuant to the Board Order of May 6, 1966, for the pur- ,pose of reopening the record and holding a hearing to receive evi- dence relating to the voting eligibility formula. 9 The Employer's request for oral argument is denied as the record and briefs adequately :present the issues and positions of the parties. Marion Manufacturing Company and United Textile Workers of America, AFL-CIO. Case 11-CA-2944. October 18, 1966 DECISION AND ORDER On July 5, 1966, Trial Examiner John Dyer issued his Decision 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 attached Trial Examiner's Deci- sion. The Trial Examiner also found that the Respondent had not ,engaged in certain other unfair labor practices alleged in the com- plaint and recommended that the complaint be dismissed with respect to those allegations. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision, and a brief in support thereof. 161 NLRB No. 21. 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations 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 rulings are hereby affirmed The Board has considered the entire rec ord in the case, including the Trial Examiner's Decision, the excep tions, and the supporting brief, and hereby adopts the findings, con clusions,l and recommendations 2 of the Trial Examiner [The Board adopted the Trial Examiner's Recommended Order with the following modifications [1 Add the following as a new paragraph 1(e) and renumber the previous paragraph 1(e) as 1(f) [" (e) Discriminatorily promulgating or enforcing its no solicita- tion rule " [2 Add the following as the fifth indented paragraph of the notice [WE WILL rescind our no solicitation rule promulgated Octo ber 12, 1965 ] 1 The Trial Examiner found and we agree that even if Respondent had discharged Fred Rumfelt for violating its no solicitation rule this action would be violative of Section 8(a) (3) inasmuch as the rule was Invalid We further agree with his finding that even if the rule were valid Respondent would have violated the Act by discharging Rumfelt since Rumfelt did not in fact violate the rule N L R B v Burnup and Sims Inc 379 U S 21 Moreover in addition to these findings we would also find in support of the Trial Examiner s conclusion that the real reason for Rumfelt a discharge was his prounion activities which were known to the Respondent and that his asserted violation of the no solicitation rule was only used as a pretext to cover up the real discriminatory reason therefor 2 While the Trial Examiner found that Respondents no solicitation rule violated See- tion 8(a)(1) of the Act he inadvertently failed to provide a remedy for such conduct We shall therefore order that Respondent cease and desist from discriminatorily promulgat ing or enforcing its no solicitation rule TRIAL EXAMINERS DECISION STATEMENT OF THE CASE United Textile Workers of America AFL-CIO herein called the Union on January 7 1966 filed an 8(a)(1) and (3) charge against Marion Manufacturing Company, herein called Respondent alleging that Respondent had committed inde- pendent violations of Section 8(a)(1) and by the terminations of Fred H Rumfelt and George Taylor Russell breached Section 8 (a)(3) and ( 1) of the Act Follow- mg the issuance of a complaint by the General Counsel this case was heard before Trial Examiner John M Dyer on April 4 5 and 6 1966 in Morganton North Carolina Respondent in answering the complaint admitted that it was engaged in interstate commerce and that the alleged 8(a)(3) s had been terminated Russell, on October 17 and Rumfelt on December 19 1965 1 but denied it had violated the Act General Counsel was permitted to amend his complaint at the hearing to- add an allegation of 8(a)( 1) interrogation All parties were given full opportunity to examine and cross-examine witnesses and helpful briefs have been received from the General Counsel and Respondent I Unless otherwise stated all dates herein occurred in 1965 MARION MANUFACTURING COMPANY 57 On the complete record of this case and on my evaluation of the witnesses' reliability based on the evidence received and my observation of their demeanor, and carefully considering the briefs , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent is a North Carolina corporation engaged in the manufacture of textile products at its plant in Marion, North Carolina, from which it annually ships its products, valued in excess of $50,000, directly to points outside the State ,of North Carolina , and annually receives directly from points outside the State of North Carolina, raw materials and supplies valued in excess of $50,000. Respondent admits and I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent further admits, and I find , that the Union herein is a labor organiza- tion within the meaning of the Act. H. THE UNFAIR LABOR PRACTICES ALLEGED A. Background and issues Respondent's textile operations are on a three -shift basis under the general direc- tion of its vice president and general manager, T. L. Ritchie. Harvey Parker is the director of personnel, and plant operations are controlled by overseers of depart- ments such as weaving and spinning , who have charge of one and one -half shifts ,each and are assisted by two or more second hands on each shift. The weaving department has Overseer Jimmy Fisher in charge of the first shift and half of the second shift, with Overseer Creede Issacs over the second half of the second shift and the third shift. In September 1965 , alleged 8 (a)(3) Fred Rumfelt secured some union authorization cards from employees at a nearby plant and circulated them among Respondent's employees securing their signatures . Rumfelt sent the cards to local union headquarters in Asheville , North Carolina, and received a reply, asking that a meeting be set up and an organizing committee formed. Rum- felt received more authorization cards from the Union and distributed authorization cards to union committee members for employees on the different shifts. In addi- tion to attending organization meetings and visiting employees in their homes, Rumfelt also engaged in distribution of union literature in front of the plant gate where he saw and was seen by various supervisors. By October 12, Respondent was fully aware that some organizing activity was taking place and posted a notice to all employees under its letterhead on the 'bulletin boards in the plant .2 Respondent maintains that it instituted and posted this rule due to the fact that it had been informed that union organizing activities were being carried on during 2 The posted notice which was received as General Counsel's Exhibit 4 reads as follows : NOTICE TO ALL EMPLOYEES It appears that the United Textile Workers Union is putting on an organizing drive to get you and your fellow employees to join the union. Until now, we have had no particular reason for setting forth our position with respect to this matter of union representation . Briefly stated, your company's position is this : We are strongly opposed to any effort on the part of any outside organization to organize and represent our employees Our sincere belief is that a union would not work to your benefit but only to your disadvantage and we will use every proper means at our disposal to prevent any union from getting into our plant. If anyone causes you any trouble at your work or puts you under any kind of pressure or threatens you to join the union , let the company know and we will undertake to see that this is stopped No one will be permitted to engage in union organizing activities during work time. Anyone who does so, and thereby neglects his own work or interferes with the work of others, will be subject to disciplinary action including discharge. MARION MANUFACTURING COMPANY `,RWT : LH ' 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD working time Respondents position is that this rule is explicitly for union organza tion activities and that it in effect modified a rule Respondent had in existence prior to this time which forbade sohcitmg of funds for any purpose on Respond ent s property except for certain stated charitable campaigns The prior rule was contained in a supervisors manual which was not circulated to employees Respondent maintains that employees were made aware of the prior rule by the fact that supervisors enforced the rule even though employees did not see it Respondent stated that as to union solicitation its unpublished rule was invalid and so the published rule was enunciated modifying the former rule The principal issues in this case are (1) whether the promulgation and enforce- ment of this antiunion no solicitation rule was valid under the existent circum stances and whether Fred Rumfelt s discharge for a supposed violation of this rule was proper (2) whether George Taylor Russell an employee having previous experience with Respondent was terminated for lack of work due to a change in loom assignments or because of his activities on behalf of the Union and (3) whether eight alleged individual instances of interrogation and threats constitute 8(a)(1) violations B The no solicitation rule and the discharge of Fred Rum felt Respondent had a policy against solicitations of any type on its property except mg only a few charitable causes according to the excerpts from its policy manual Respondents Exhibit 1 Provisions were made for maintenance of a flower fund but chances or raffles were expressly forbidden . Respondent stated that such a rule if applied to union solicitation by its employees would be invalid apparently because no exceptions were provided for employees break periods or rest time 8 Respondent states it therefore adopted the published rule (October 12) as a modifi cation of its policy provisions and limited the rule specifically to union activities since it had knowledge that there were instances of union solicitation occurring in the plant on work time As instances of such solicitation Respondent indicated that Fred Rumfelt had solicited employee Carl Moody among others on company time and intimated it knew of an employee who signed a union authorization card for employee John Wilson during work hours On cross-examination Wilson acknowledged that he had talked to other employees about the Union and signing authorization cards during Work hours but there was no indication when or where, such occurrences took place that is during break or rest periods inside the plant or in the yard Respondent did not offer any testimony as to when and where the Wilson solicitation concerning which it indicated it had knowledge took place Personnel Director Parker in testifying concerning the reasons for the imposition of the October 12 rule said that during the first week of October a supervisor told him that an employee in one department had been solicited for the Union on his job by another employee but Parker did not identify either the employee solicited or the employee soliciting other than to say it was not the Rumfelt Moody sohcita tion Parker added that management was informed that Rumfelt had been told not to come into work early because a supervisor thought Rumfelt was soliciting on the earlier (second) shift prior to starting work In regard to Rumfelt s predis charge solicitations for the Union in the plant Respondent offered the testimony of Carl Moody Lettie Fisher Fred Moody and Ray Broome Carl Moody testified that on the 18th or 19th of October he was working on the second shift on looms which Rumfelt would have on the third shift Just before shift change time Moody states he went to where Rumfelt was waiting to tell him of a troublesome loom and said that Rumfelt said he could end his trouble if he would sign a union card Moody says he threw up his hands and walked away Rumfelt testified that he did not solicit for the Union in the plant after the Octo ber 12 notice was posted but says that prior to the notice one employee coin planed to him about the work being hard and he showed the employee a union authorization card and the employee told him that if the Company found out about it a bunch of them would be fired Considering Moody s testimony only if the event happened where and when Respondents witness Moody indicated the solicitation could not have been one of the reasons for imposition of the October 12 rule since it occurred approximately a week after the rule was posted 3 The 8 hour shifts worked by employees did not have specific break or rest periods or lunch hours but employees took their breaks or ate when their work was caught up and running A lunch wagon run by a concessionaire was pulled through the plant and other employees brought their food and ate near their jobs MARION I\ ANUFACIURING COMPANY 59 Lettie Fisher the sister in law of Overseer James Fisher testified she told James about talks she and Rumfelt had about the Union prior to the rule posting during the few minutes ,before shift change time. She stated further that Rumfelt did not ask her to, join the Union and that over the years she and Rumfelt had discussed a wide range of subjects Since she testified Rumfelt did not ask her to join the Union Respondegt could not have used Fisher as part of Rumfelt s supposed union solicitations in the plant which led it to promulgate its rule Fred Moody testified that Rumfelt talked to him and offered him a union card to sign in the plant prior to the rule publication one evening when Rumfelt was sitting in the smoking chair by his job and Moody was on his way to the restroom On two other occasions prior to the October 12 rule posting Moody said that Rumfelt mentioned something to him about signing for the Union Ray Broome testified that his work bench was near Rumfelt s looms and that he and Rumfelt are good friends Broome testified that he and Rumfelt talked about the Union on two or three occasions but he did not recall whether they were before or after the October 12 notice posting but thought one or two of them followed the post mg He did recall that Rumfelt told him not to let anyone pressure him about signing a union card but to decide for himself Broome also said that he talked to other weavers about the Union while on the job Both Fred Moody and Ray Broome testified that they did not tell any of Respondent s management about their conversations with Rumfelt until long after Rumfelt was fired Clearly then neither the testimony of Fred Moody nor Ray Broome could have played any part in Respondents knowledge of union solicitations in the plant or its decision to pro mulgate the antiunion no solicitation rule since Respondent did not know of such activity Respondent made no claim and offered no testimony that union talk or solicits tion in the plant disrupted the work schedule interfered with production or caused severe unrest among its employees The totality of evidence which Respondent had before it at least as far as this record shows which to it indicated the neces sity for its rule was the unspecified instance of employee John Wilson supposedly soliciting an unnamed employee to join the Union and one of its supervisors reporting that he thought Fred Rumfelt was soliciting for the Union and Respond ent s counsels feeling that the prior unpublished rule was invalid Affirmatively Respondent witnesses testified that the antiumon no solicitation rule was promul gated for the specific purpose of interfering with the union campaign at its plant Personnel Director Parker testified It was apparent at the time of this notice that we were ha,vmg an organza tional campaign move by the UTWA which involvel1 some of our employees We didn t know how serious it was at the time, we felt we thought for a day or two about putting this notice up and then checked with our legal counsel and they advised us that if the activity seemed to be increasing to establish this notice which we did on October 12 Parker was next asked what the indications of the union campaign were and responded with the two named above i e Wilson and the putative soliciting by Rumfelt This rule was also an issue in the unemployment compensation hearing of Fred Rumfelt and during said hearing Personnel Director Parker was asked the follow mg question and gave the following answer Q Then if I understand it correctly this rule was solely for the purpose of preventing an organization of the Union? A Yes sir Respondent states in its brief that there is no question that the rule was intended to prevent union organizing activities during work time This latter phrase work time" evokes a further question as to what it means Respondent elicited testimony of its witnesses that there was talk of the Union while employees were smoking on the way to and in the restrooms The testimony would seem to indicate that Respondent felt its rule was broken if employees talked about the Union on what seems to be their breaktime thus placing this published rule back in the ambit of its policy rule which it states was invalid The circumstances which led Respondent to terminate Fred Rumfelt shed further light on this rule Rumfelt who started his work career with Respondent had worked as a weaver for the last half of his more than 17 years with Respondent According to Rumfelt he had not received any complaints about his work but on 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the contrary, had received written commendations from his supervisors. All Respondent witnesses who were asked, stated Rumfelt was a good weaver. Near the end of his looms, was a smoking chair where Rumfelt occasionally went for breaks. According to Rumfelt a few days before he was discharged a new employee paused near one of his looms, which was stopped for repairs. Afraid that he would attempt to start the loom, Rumfelt who was in the smoking chair, waived him over and told him not to fool with it, that Supervisor Seagle would fire them both. This was the only occasion Rumfelt says that he spoke to Roy Mace 'and he did not know his name until long after his discharge. Mace, a former truckdriver with no previous experience in a mill, testified he had been with Respondent 1 week, in which he learned how to steam filling and properly fill the filling racks in the weaveroom• with the proper type of filling yarn needed, from the many sizes maintained. While checking the filling racks to deter- mine what filling was needed, Mace stated he passed within 10 feet of Rumfelt seated in the smoking chair and Rumfelt waved him over. Mace stated Rumfelt asked him if he had or would sign a union card and Mace said no. Rumfelt then asked if he would be interested in signing and Mace said he did not think a union would help him. Rumfelt said any time Mace was ready, to let him know, he had a pocketful of cards. Mace said he left after telling Rumfelt he was not interested. Mace testified he told Supervisor Ross about the conversation and later repeated it for Overseer Issacs and signed a statement about it in the overseer's office. Mace did not recall whether Supervisor Ross asked whether this conversation interfered with his work or not, thought Overseer Issacs asked him if he got his work done, and to a direct question at the hearing responded that he got his work done. There was a dispute between General Counsel and Respondent witnesses as to whether there were filling racks near Rumfelt which would have brought Mace near the smoking chair. After Respondent took a statement from Mace, Rumfelt was summoned by Issacs who read from a paper that Rumfelt was being laid off for 3 days, with intent to discharge him, because he had violated the Company's rules on solicita- tion by trying to solicit union membership. Rumfelt asked Issacs who he had solicited or interfered with, and Issacs replied he could not say. Rumfelt said Issacs could not say because he had not done so but he had been anticipating his discharge since starting the union campaign. Rumfelt returned on the appointed day to Personnel Director Parker's office where he was told that Overseer Issacs and Plant Manager Ritchie had decided to let him go because he had violated the no-solicitation rule. Rumfelt again asked who he was supposed to have interfered with and when, and Parker replied he did not know. At Rumfelt's unemployment compensation hearing, Rumfelt was still not informed as to the identity of the supposed solicited employee and Parker, representing Respondent, declined to identify Mace and the time of the occurrence. In pinpointing the reason for the discharge the appeals deputy asked the following questions of Parker and got the following answers: Q. Now, the question I'm trying to get an answer for is was the rule to prevent that sort of thing as well as to prevent union solicitation? A. This rule that Mr. Rumfelt violated, the one that we had on the board, pertained to union solicitation. Q. Solely? A. Yes, sir. Q. Then I'll ask you this: If Mr. Rumfelt had gone over and spoken to this gentleman, taken him off his job, and talked to him a few minutes about something else not pertaining to union activity , would you have discharged him? A. No, not for violation of solicitation rule. If he had interfered with another employee's work, he might have received a warning to that extent. We had it plainly on the board, Mr. Nooe, what it was for, and we had the report that Mr. Rumfelt had violated it by interfering with the work of another employee and we checked the report and had the report in writing. Therefore, his shift supervisor and his overseer and our plant manager, as you refer to Mr. Ritchie, superintendent, decided that the proper thing to do was to discharge Fred. Q. Then, if I understand it correctly, this rule was solely for the purpose of preventing an organization of the Union? A. Yes, sir. MARION MANUFACTURING COMPANY 61 Q Now you ve never had an occasion to have to warn Mr Rumfelt about anything before have you or have you? A No sir Q Now there s a possibility that if he d gone over there and talked to him a little bit say a few minutes there about baseball or something else and it would have slowed down his work or something well he d probably received a warning for it? A That s correct sir Q And after he got so many warnings a possibility he might have been discharged if this thing had continued is that correct? A That s the procedure yes Mace testified that he had stopped and spoken to other employees similarly seated in smoking chairs while making his rounds and had not reported such con versations to management Personnel Director Parker informed the appeals deputy in Rumfelt s unemploy ment compensation hearing that Respondent had made a full investigation of the matter and satisfied itself Rumfelt had broken its rule and therefore discharged him Parker was asked what investigation took place besides securing Mace s statement and said that insofar as he knew no further investigation occurred An mvestiga tion without securing the side of the accused an employee for more than 17 years, nor informing him of the identity of the accuser or the purported facts surrounding the solicitation demonstrates that Respondent was not interested in a valid apply cation of this rule and indicates by this use that the true purpose of the rule was to invalidly impede and harass the employees in their attempt to organize a union. Here the rule is used as a straw man to discharge the principal employee pro tagomst for the Union There appear to be no specific restrictions against talking in the plant and the testimony indicates employees conversed frequently with one another and their supervisors on diverse subjects Specific charitable solicitations were permitted by Respondent and Christmas parties solicitations for presents and Christmas meals took place in the plant on work time There was also testimony that baseball pools were held at World Series times and that supervisors participated in them one of the supervisors having offered to sell an employee his chance The supervisors on the whole denied knowledge of such pools with one although not being asked if he tried to sell his chance to the employee witness admitting he bought his pool ticket on the mill parking lot The evidence indicates more solicitations than those allowed in Respondents policy manual took place on company property with supervisors knowledge if not active participation and that the written permission called for in the manual was not obtained The solicitations known of and permitted by Respond ent s supervisors contrast sharply with the supposed solicitation of Mace by Rumfelt. Respondent argues that this is a valid rule and therefore it may prevent union solicitation in its plant which interferes with production and cites the Avondale Mills and Nutone 4 Supreme Court cases However those cases start with a rule unchallenged as to validity, with only the practices thereunder in question In the instant case the rule itself is attacked as invalid and the evidence demon strates its invalidity Briefly the argument that the prior rule was invalid does not confer an aura of validity on this rule where here there is no better definition as to what working time means and the interpretation of it as shown by the Rumfelt case makes this part of the rule suspect If there was a general no-solicitation rule which Respondent had maintained and modified to make valid we would be facing a different situation but here Respondent aimed the rule solely at union organs zation and without any support to show that its production was being impeded or its plant discipline harmed The rule here is invalid from its inception and is a violation of Section 8(a)(1) of the Acts and the discharge of Rumfelt for breach mg the rule is a violation of Section 8(a)(3) and ( 1) For the sake of argument if the rule were valid I would still find Rumfelt s discharge to be an invalid apphca tion of a rule since 1 I credit Rumfelt s version of the conversation with Mace determining that he is the more credible witness based on the inherent plausibility of the testimony and the respective demeanor of Rumfelt and Mace ' N L R B v United Steelworkers 857 U 8 857 6 See Was H Block Company 150 NLRB 341 and Pepsi Cola Bottlers of Yiami Ise 155 NLRB 527 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2 Rumfelt had sufficient prior warnings to be careful of his step with Respond- ent including warnings from the union organizer the happenings after the Mt Ida service station solicitation of an employee in the presence of a supervisor (set forth below) and the written warning given to Rumfelt concerning his remarks after the posting of the October 12 rule In the face of these happenings I simply do not believe that Rumfelt would ask a new employee he did not know to sign a union card C The termination of George Taylor Russell Russell first worked for Respondent from 1955 to 1957 in the slasher room first mixing size and later as the slasher tender In 1965 after several years of work in Cleveland Ohio he returned to the area and sought work at Respond ent through Personnel Director Parker Russell stated that he talked to Parker approximately three times before being employed On one occasion after he had told Parker of his former employment and his hourly wages Parker asked if he was working in a union shop at his job in Ohio and Russell said he had Parker according to Russell said Well we don t want to mention that word union around here People will shoot you for it Russell said he knew that Parker testified that after learning that Russell had earned $3 per hour on his former job he asked Russell if it was a union job and Russell said it was Parker then mentioned a wage differential between the North and South and that at Respondent his pay would be between $125 and $130 per hour Russell said he could make it on that since living was cheaper there Parker said he did not recall saying anything about getting shot for mentioning union and did not believe he said anything about keeping union views to oneself This incident is alleged both as an instance of interrogation and an implied threat of discharge if an employee associated with a union I credit Russell s version of the conversation since I find him to be a crdible witness and that Parker had a tendency to color his testimony somewhat There was no necessity for Parker to enter the area of unionism if he merely wanted to point out the difference in the pay scales I find that Parker inquired to determine if Russell had indeed worked under a union and to make Respondents position on a union emphatically clear to Russell The reference to getting shot was an overdramatization to implant in Russell the idea that union was a taboo and that if he associated with a union his term with Respondent would be short I find and conclude that Respondent by Parker s remarks to Russell vio lated Section 8(a)(1) by interrogating Russell as to his previous union association and threatening him with discharge if he aided or assisted a union at Respondent Russell was hired as a loom cleaner in the weaveroom at minimum rate of $125 After 11/2 months Russell was given a 10-cent raise and told he was being promoted to cloth doffer in the downstairs weaveroom The supervisors on both jobs complimented Russell on his work with Supervisor Seagle adding that he would try to put him on learning to weave at the first opportunity Similarly Parker told Russell he was doing a good job and would probably be started on learning to weave About 1 week before his termination Overseer Issacs told him he had been recommended for weaving by the second hands that he was a good worker and at the first opportunity would be put to weaving In the interim Russell had become interested in the Union to the extent of visit ing employees to try to sign them up About a week before his termination and just prior to the posting of the October 12 rule Russell was with Rumfelt and employee John Hemphill (sometimes referred to as Hatfield in the transcript) and union International Representative Robertson in Robertson s car making visits They pulled into a service station at Mt Ida and called Arthur °Teep Lewis over to the car Rumfelt and Russell talked to Lewis about the Union and asked him to sign an authorization card They then noticed Jack Williams a second hand in the spinning room, and hurriedly left Lewis who appeared to be a reluctant wit tress confirmed the cbnversati6ti adding that Russell and Rumfelt asked where they could get a drink and testified that after the car left he and Williams joked about the conversation and Williams asked him who was in the car Lewis testified he identified Russell and Rumfelt by name but that he did not know the names of the two other' men in the front seat Re§pondept did not produeei second hand lack Williams to testify Shortly after this Mt Ida incident the folio mg occurred 1 Second hand Seagle told Rurfifelt 'hot to come into the vdeave shop early and talk to employees but to wait and come in just before shift changing time Although telling Rumfelt that this instruction applied to all employees Seagle admitted it applied solely to Rumfelt MARION MANUFACTURING COMPANY 63 2 The October 12 antiunion no solicitation rule was prepared and posted 3 On the night of posting the October 12 notice Supervisor Seagle advised Rumfelt and employee Honeycutt to read it A short time later Rumfelt saw Super visor Carl Helms and asked him what the company had on the bulletin board Helms said it was a letter from Respondent President Twitty Rumfelt asked Helms if it was anything about giving better retirement vacations insurance or treating the old folks better Helms laughed and said Rumfelt would just have to read it for himself In his testimony Helms admitted that he had known Rum felt since he was a boy and they were pretty good friends and that it was not unusual for them to talk to one another In essence, Helms confirmed Rumfelt s description of the conversation but states that on the following night he reported the conversation to Overseer Issacs who later on called Rumfelt into the office and read a reprimand to him which in essence repeated the conversation Issacs con cluded by telling Rumfelt that his statement to Helms was pretty close to being insubordination and that he was giving him the warning due to his change in attitude and that a little bit more talk like that could result in his being dismissed from the Company Rumfelt testified he told Issacs that the conversation had been a friendly conversation between friends and not as one from an employee to a supervisor and said they were trying to make it sound a lot worse than it was 4 John Hemphill was asked by second hand Seagle on the night of the Octo her 12 posting whether he had seen Respondents notice and what he thought of it Hemphill said there was not much you could think of it and Seagle said he was against anything which would cost him money Within 2 weeks of the Mt Ida mci dent Hemphill was given a written notice for a mmissed reed which had made a defect in some cloth In the 4 to 5 years he had been weaving at Respondent this was the first warning Hemphill had ever received for a missed reed and as far as he knew none of the weavers had ever received a warning for a missed reed He testified there were other lengths of cloth in the office with similar defects from other weavers at the time he received his reprimand Seagle testified this was the third missed reed or wrong draw of Hemphill s in 8 days and after telling him about the first two be wrote up the third Although testifying that he usually talked to employees about such items and sometimes might take other action Seagle did not testify that prior to this occasion he had ever issued a written warn ing for such a reason and said he did not recall if there were other pieces of cloth in his office with similar defects 5 On October 17 Supervisor Ross took Russell to Overseer Issacs who read a paper to Russell saying he was being terminated Russell asked if this meant he was being laid off and after being told it did asked why Issacs said they had no work for him Russell complained that there were younger men such as Hoyt Lytle still working and asked if Lytle were being laid off Issacs said he was not and they just did not have work for Russell Russell was sent to Personnel Director Parker s office for his pay The discharge slip given him by Issacs said terminated during probationary period to which Parker added due to a reduction in work for us Russell testified he asked Parker if he would be called back if they needed him and Parker said yes As to the termination Respondent says that due to a style change it made some changes in loom assignments and in some creeling jobs which resulted in eliminat ing two weavers Respondent hired some women as creeling help and as a result displaced some other employees one of whom an employee with more seniority than Russell bumped Russell from his doffing job Respondent said it had four probationary employees including Russell in that department but did not consider terminating two of them because they had permanent jobs Since Lytle s father was employed by Respondent it decided to terminate Russell Respondents stated reasons for terminating Russell are not satisfactory when gauged by objective facts and indeed conflict with its policies as enunciated by its overseers Russell had a permanent job as a cloth doffer and had been promoted to that job with a pay increase Seniority was used to bump him from that job At that point Respondent apparently gave no thought to letting Russell bump others lower in seniority because he was a probationary employee Respondents Exhibit 5 contains the probationary employee policy The last two paragraphs thereof state If at the end of the probationary period the supervisor feels that an employee has successfully completed the probationary period he should inform the employee that he has qualified as a regular employee The super 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD visor should then notify the employment office that the employee has qualified as a regular employee. Supervisors should determine as quickly as possible whether or not an employee is qualified to perform his job and if he is otherwise suitable for Company employment. Basically, as set forth by the Company's policy manual, the purpose of a pro- bationary period of employment is to determine whether an employee is capable and suitable for performing the work. From the evidence introduced there seems to be no doubt whatever that Russell was capable of satisfactorily performing the work. Indeed, within the probationary period he was advanced to cloth doffer and given a 10-cent raise and told by no less than three supervisors and the personnel director that he would be put to learning weaving as soon as possible. These are clear indications that at least prior to the Mt. Ida service station incident, Respondent considered him to be an excellent worker, certainly one worthy of retaining if at all possible. In addition, Russell was an experienced employee who knew how to clean, sweep, mix size, and tend the slasher. Overseer Fisher testified that it was company policy to keep trained personnel and not displace them, rather than hire new per- sonnel. Overseer Issacs testified that the Company preferred to retain or recall experienced personnel rather than to hire new employees and teach them the vari- ous jobs. While terminating Russell, Respondent was hiring new employees including one or two employees for the slasher room and others for general cleaning duties, which Russell could have performed. Issac's efforts to justify Russell's termination strained the bounds of credulity in his testimony regarding the training necessary for a sweeper, loom-cleaner or blow-off boy, and contradicted the statements of Overseer Fisher who hired untrained personnel for the various cleaning jobs. An example of his distortion is Issac's premise that an employee who knew how to clean the sides of a loom would not necessarily know how to blow off a loom, even though an air hose is used for both jobs and an employee blowing off looms was expected to do eight times as many looms in a night as a loom side cleaner. Sec- ond hand Seagle was with Overseer Issacs, guilty of gross exaggeration in describ- ing jobs, duties, and the lengths of time necessary to learn jobs and both shaded other portions of their testimony. In summary, Russell, an employee with previous experience who was then near- ing the end of a probationary period, was laid off on the basis of a reduction in work, when in reality there was no reduction in work, new inexperienced employees were being hired for jobs he could perform and employees less qualified and with less work time were retained. As noted, the purpose of a probationary period is to enable a company to weed out employees who do not measure up to its stand- ards. There was no such problem with Russell since he had been praised, pro- moted, and promised another promotion. Except for Russell's union activities with Rumfelt and Hemphill, there appears to be no reason for Respondent to have ter- minated him. When we consider the occurrences shortly after the Mt. Ida incident set forth above, the conclusion is inescapable that these occurrences are more than a fortuitous happenstance. The conclusion that the occurrences happened because of the union activities of the three employees is fortified by the October 12 notice, which certainly exhibits an animus toward the Union, the other 8(a)(1) activities detailed hereafter, and the obvious effort by Respondent to rid itself of Rumfelt. I am convinced and find that Respondent terminated George Taylor Russell and thereafter refused to reinstate him because of his prounion activities and sentiment, in violation of Section 8 (a) (3) and (1) of the Act. D. Other 8(a) (1) violations Employee Billy Honeycutt testified that several days after the posting of the October 12 notice, Supervisor Sam Seagle on two occasions asked Honeycutt if he was for the Union. On both occasions Honeycutt replied that he was not, did not know much about the Union, and on the second occasion asked whether Seagle was for the Union, to which Seagle replied that he was not for anything that would cost him money. Honeycutt asked Seagle how much the Union would cost and according to Honeycutt, Seagle replied around $15 a week would be taken from his paycheck. Honeycutt further testified that later in the same month Super- visor Seagle asked him if Jimmy Ferguson, a friend of Honeycutt's, had anything to do with the Union and Honeycutt replied that he never heard Jimmy say anything about the Union. Honeycutt testified that around the first of December, a copy of MARION MANUFACTURING COMPANY 65 a letter from the Union to Respondent was posted on the plant bulletin board. This letter informed the Company of the names of six employees who were serving as the union organizing committee (General Counsel's Exhibit 5). While Honeycutt was looking at the notice, Supervisor Seagle approached him and said that he was not worried about the names on the bulletin board but was waiting for the names to come down from the office that signed union cards. Honeycutt told Seagle that he would not turn his name in, he would be too scared to. Honeycutt also testified to a conversation with Personnel Director Parker in January 1966, when he had gone to make a correction regarding his withholding exemption. While in the office Parker asked Honeycutt if he had gotten messed up in the union mess and Honeycutt replied that he had not. Parker then said, "Well, I think we have got everything straight now." 6 Seagle testified concerning Honeycutt's testimony that he had discussed joining the Moose Lodge with Honeycutt and mentioned that people enjoyed the dances and parties down there. Seagle specifically mentioned that Jimmy Ferguson, Honey- cutt's friend, enjoyed going to the Moose Lodge but stated that he did not recall any conversation with Honeycutt in which Ferguson's name was mentioned along with the Union. Seagle further remembered that he had a conversation with Honey- cutt at a time when Honeycutt asked him how much the Union would cost. Seagle stated that he replied that he,did not know,but had a friend in construction work whose dues were $3 or $4 a month, but he could not tell him what the dues would be. Seagle testified that this conversation occurred between the time of the Octo- ber 12 notice and the. December notice (General Counsel's Exhibits 4 and 5). On direct testimony, Seagle remembered one further conversation- with Honeycutt after the December notice, in which Honeycutt stopped him and_ asked him what the names in the notice meant and he told Honeycutt they were the official organizers for the Union. He stated that Honeycutt said, "Boy, I wouldn't want my name on that Board, them boys won't be here the 4th of July," and that he replied, "Billy, now you said that now, I didn't," and walked away. Seagle remembered no other conversations that he had with Honeycutt.7 On cross-examination Seagle admitted telling Honeycutt that "we would not be surprised if we got the names" of the union members, but did not recall a state- ment in an affidavit which he signed for an NLRB agent in the presence of the company attorney, that: "I told an employee that the names of the people who had joined the Union we were expecting around December 15." I credit Billy Honeycutt's version of the conversations between himself and Seagle. Seagle was not a candid witness and sought to color and shade his testi- mony. I therefore find that the Respondent through Supervisor Sam Seagle inter- rogated its employee Billy Honeycutt concerning his union activity and the union activity of other employees on two occasions in October 1965, and that Seagle informed Billy Honeycutt that Respondent knew or would know shortly who had signed union cards. Personnel Director Parker recalled an occasion when Honeycutt came in to make some change in his withholding allotment and that as Honeycutt was leaving he said to him, "Bill, we are having some mess in the mill . I hope you are not mixed up in this mess." As to the statement about "union mess" by Personnel Director Parker, I believe Parker was attempting to shift the emphasis of his testimony, but even on the version given by Parker I would find that Respondent, through Parker, had engaged in illegal 8 (a)(1) interrogation of Honeycutt. I credit Honeycutt's version of the Parker statement and find that Respondent by Parker engaged in interrogation violative of Section 8(a)(1). Employee Jack Dillingham testified that when he sought employment through Personnel Director Parker after informing Parker that he had worked at Morgan- ton Dyeing and Finishing Company during the period when a union election was held there, Parker asked him how he felt about the Union. Dillingham testified that he told Parker he was against the Union because he wanted a job at Respondent. 6 It is noteworthy that this statement occurred soon after the discharge of Rumfelt, the principal union protagonist. 7 This testimony which Seagle amended on cross -examination clearly indicates the em- ployees' fears of reprisal if they engaged in union activities and that Respondent 's super- visors in no way sought to alleviate the fears, but on the contrary, confirmed them. 264-188-67-vol. 161-6 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Parker does not recall the conversation as related by Dillingham. Parker explained that he was considering Dillingham for employment because Dillingham's mother and mother-in-law both worked for the Company and asked that he see if he could place Dillingham with Respondent I have previously given the testimony of Russell and Parker as to Parker's inter- rogation of and warning to Russell, and my conclusion that Parker's remarks vio- lated Section 8(a)(1). As stated above, Parker shaded his testimony to some extent and I find and conclude, that as with Russell, Parker did inquire of Dillingham about his union views, knowing he had worked in other union shops, and thereby violated Section 8(a)(1) of the Act. Albert J. Huffman testified that on the day that the copy of the Union's letter naming the organizing committee was posted in the plant, Supervisor Ezell came up to him, smiled and said, "I understand you are leaving us" and walked off. Huffman's name was in the letter as one of the committeemen. Huffman, on direct testimony, said that be had not discussed leaving the Company with Ezell but had mentioned to one of the fixers that he might leave if he found a better job. On cross-examination, Huffman admitted telling a number of people that he was thinking of quitting but said that he did not say anything to Ezell about it before Ezell talked to him. He further admitted telling Ezell's son in either September or early October that he might quit. Supervisor Ezell testified that on October 30, Huffman came to his house, picked up his son and that they were gone for better than an hour. On returning his son told him that Huffman (nicknamed J. C.) said that he was working for the Union and that J. C. said that he did not know what the Company would do about it, that they might fire him if they found it out but it did not matter, that he was going to put in his notice the next payday. Ezell testified that on the following day Woodrow Teester, a fixer on the third shift, told him that J. C had said he was putting in his notice. Ezell then testified that on Friday morning, November 5, when he came in Teester again told him that J. C. had said he was turning in his notice that morning to his overseer. Ezell stated that when he walked out to check the humidity and temperature chart, J. C. was standing there and he said to J. C., "I understand you are thinking of leaving us." He said that J. C. replied, "Who, me?" and that was the end of the conversation. He was definite in stating that he had not talked with J. C. at any other time regarding this matter. The original impression given by Huffman was that the remark was made while the letter naming the union committeemen was on the bulletin board. Thereafter it developed that the letter was not on the bulletin board at the time the statement was made. If the statement had been made in the presence of such a document it could very well be considered a veiled threat but under the circumstances where it was not so made and where Huffman apparently had told a number of people that he was planning to leave the Company and in particular had told Ezell's son, I do not find that this constitutes any threat by Respondent. I credit Supervisor Ezell's version of the occurrence. III. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of Respondent set forth in section II, above, and therein found to constitute unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, occuring in connection with Respondent's business operations as set forth in section I, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that Respondent has engaged in the unfair labor practices set forth above, it is recommended that it cease and desist therefrom, and take affirmative action designed to effectuate the policies of the Act as follows: Respondent having discharged or terminated Fred Rumfelt and George Taylor Russell because of their union activities and not having, offered either of them reinstatement, it is recommended that Respondent offer to each of them immediate and full reinstatement to their former or a substantially equivalent position with- out prejudice to seniority and other rights and privileges, and make each of them whole for any loss of pay he may have suffered by reason of the discrimination practiced against him by payment to each a sum of money equal to that which he MARION MANUFACTURING COMPANY 67 normally would have earned as wages from the date of his discriminatory terms nation to the date Respondent offers them reinstatement less any net earnings for the interim The backpay is to be computed on a quarterly basis in a manner estab lished by the Board in F W Woolworth Company 90 NLRB 289 with interest at the rate of 6 percent to be computed in the manner set forth in Isis Plumbing & Heating Co 138 NLRB 716 It is further recommended that Respondent make available to the Board on request payroll and other records in order to facilitate the checking of the amount of backpay due and the rights of reinstatement of each of the discriminatees Having been found that Respondent discriminated against these employees for exercising their rights under the Act and having interfered with the rights of its other employees thereby and having otherwise invaded its employees rights under the Act I am of the opinion that the danger exists that Respondent may commit further unfair labor practices having by the actions set forth above shown its proclivity for so doing Since part of the purpose of the Act is to prevent the commission of unfair labor practices and being mindful of the danger that Respondent may again invade the rights of its employees it is recommended that Respondent be placed under a broad enjoinder to cease and desist from in any manner infringing upon the rights guaranteed its employees by the Act On the basis of the foregoing findings and the entire record I make the following CONCLUSIONS of LAW 1 Marion Manufacturing Company is an employer 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 discriminatorily discharging or terminating employees George Taylor Russell and Fred H Rumfelt on October 17 and December 19 1965 respectively and not thereafter reinstating either of them because of their union activities and desires Respondent engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(3) and (1) and 2(6) and (7) of the Act 4 By intimating to employees that it would receive the names of employees who signed union cards and by impliedly threatening to discharge employees if they associated with the Union and by interrogating employees as to their union activities and desires and the union activities and desires of other employees as described above Respondent has engaged in and is engaging in unfair labor prac tices affecting commerce within the meaning of Sections 8 (a) (1) and 2 (6) and (7) of the Act RECOMMENDED ORDER On the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case considered as a whole it is recommended that Marion Manufacturing Company of Marion North Carolina its officers agents successors and assigns shall 1 Cease and desist from (a) Discouraging membership in and activities on behalf of United Textile Workers of America AFL-CIO or any other labor organization by discharging employees or discriminating against them in any other manner (b) Intimating to its employees that Respondent would receive the names of employees who signed union cards (c) Impliedly threatening to discharge employees if they associated with the Union (d) Interrogating employees concerning their union activities or desires and the union activities or desires of other employees (e) In any other manner interfering with restraining or coercing its employees in the exercise of their rights to self organization to form labor organizations to join or assist United Textile Workers of America AFL-CIO to bargain collectively through representatives of their own choosing and to engage in concerted activi ties for the purpose of collective barpining or other mutual aid or protection 2 Take the following affirmative action which is necessary to effectuate the poli cies of the Act (a) Offer to Fred H Rumfelt and George Taylor Russell reinstatement in accord ance with the recommendations set forth in the section of this Decision entitled `The Remedy above 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Make whole Fred H Rumfelt and George Taylor Russell for any loss of pay they may have suffered by reason of Respondents discrimination against them in accordance with the recommendations set forth in the section of this Decision enti tied The Remedy (c) Preserve and upon request make available to the Board or its agents for examination and copying all payroll records social security payment records tune- cards personnel records and reports and all records necessary to analyze the amount of backpay due and the rights of Fred H Rumfelt and George Taylor Russell under the terms of this Recommended Order (d) Notify Fred H Rumfelt and George Taylor Russell if presently serving in the Armed Forces of the United States of their right to full reinstatement upon appli- cation in accordance with the Selective Service Act and Universal Military and Training Act as amended after discharge from the Armed Forces (e) Post at its plant in Marion North Carolina copies of the attached notice marked Appendix 8 Copies of said notices to be furnished by the Regional Direc tor for Region 11 after being signed by the representative of Respondent shall be posted by Respondent and maintained by it for 60 consecutive days thereafter in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent to insure that said notices are not altered defaced or covered by any other material (f) Notify the Regional Director for Region 11 in writing within 20 days from the date of receipt of this Decision what steps the Respondent has taken to comply herewith 9 8 In the event that this Recommended Order is adopted by the Board the words a Decision and Order shall be substituted for the words the Recommended Order of a Trial Examiner in the notice In the further event that the Board s Order is enforced by a decree of a United States Court of Appeals the words a Decree of the United States Court of Appeals Enforcing an Order shall be substituted for the words a Decision and Order 9If this Recommended Order Is adopted by the Board this provision shall be modified to read Notify the Regional Director for Region 11 in writing within 10 days from the date of this Order what steps the Respondent has taken to comply herewith APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Rela- tions Act as amended we hereby notify our employees that WE WILL NOT fire or lay off any of our employees to discourage you from helping or joining the United Textile Workers of America AFL-CIO WE WILL NOT try to discourage you from joining the Union by telling you we will learn who signed union cards WE WILL NOT imply that we will fire employees who associate with the Union WE WILL NOT question you about your union activities or desires or what you may know about the union activities or desires of other employees WE WILL NOT in any other way hinder or coerce you in your rights under the law which we recognize to form join or help a union including the United Textile Workers of America AFL-CIO or to choose a representative to bar gain for you WE WILL offer Fred H Rumfelt and George Taylor Russell their former jobs with all of their rights and pay them any backpay due All our employees are free to become or remain union members MARION MANUFACTURING COMPANY Employer Dated------------------- By------------------------------------------- (Representative ) (Title) NOTE -Notify Fred H Rumfelt and George Taylor Russell if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act as amended after discharge from the Armed Forces J. C. PENNEY CO., STORE NO. 1093 69 This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board's Regional Office, 1624 Wachovia Building, 301 North Main Street, Winston-Salem, North Carolina 27101, Telephone 723-2302. J. C. Penney Company, Store No. 1093 and Retail Clerks Interna- tional Association, Local Union No. 1564, AFL-CIO. Case 28- CA-1286. October 18, 1966 DECISION AND ORDER On June 17, 1966, Trial Examiner James R. Webster issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations 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 rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recom- mendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. Paragraph 1(c) of the Trial Examiner's Recommended Order is amended to read as follows : [" (a) Granting wage increases to employees without bargaining and consulting with Retail Clerks International Association, Local Union No. 1564, AFL-CIO ; provided, however, that nothing in this Decision and Order shall be construed as requiring the Respondent to vary or abandon any wage increases or other economic benefit which it has heretofore established." " We adopt the Trial Examiner 's conclusion that Petitioner did not waive the right to bargain over merit wage increases . Although such a right may be waived by collective bargaining, a waiver will not be readily inferred ; there must be a clear and unmistakable showing that the waiver occurred . Clifton Precision Products, 156 NLRB 555. 161 NLRB No. 8.