Schneider Mills, Inc.

SCHNEIDER MILLS, INC. 1135 customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material.6 (c) Notify the Regional Director for the Region 26, in writing, within 20 days from the date of receipt of this Decision, what steps the Respondent has taken to comply herewith? 6In the event that this Recommended Order is adopted by the Board the words "a Decision and Order " shall be substituted for the words "a 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 similar appropriate modification shall be made. 7In the event that this Recommended Order is adopted by the Board this provision shall be modified to read: "Notify said Regional Director , 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 refuse to bargain collectively with Boot and Shoe Workers' Union, AFL-CIO as the exclusive bargaining representative of all employees in the bargaining unit described below. WE WILL, upon request, bargain collectively with Boot and Shoe Workers' Union, AFL-CIO as the exclusive collective-bargaining representative of all employees in the said bargaining unit. The bargaining unit is: All production and maintenance employees at the Iuka, Mississippi plant, including principal standards clerks, standard clerks, watchmen, special utility operators, quality control observers, but excluding office clerical employees, guards, and supervisors as defined in the National Labor Relations Act. GENESCO, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) 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, 746 Fed- eral Office Building, 167 North Main Street, Memphis, Tennessee 38103, Telephone 534-3161. Schneider Mills, Inc. and Jimmy and Josh , Inc. and Textile Work- ers Union of America, AFL-CIO. Cases 11-CA-2909, 0921, and 2937. November 17, 1966 DECISION AND ORDER On August 1, 1966, Trial Examiner George J. Bott issued his Deci- sion 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. He also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recom - mended that such allegations be dismissed. Thereafter, the General 161 NLRB No. 106. 1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel and Respondent filed exceptions 1 to the Trial Examiner's Decision and supporting briefs. 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 made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Exam- iner's Decision, the exceptions and briefs , and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.2 [The Board adopted the Trial Examiner's Recommended Order with a modification.]s i The Respondent moved to dismiss the General Counsel's exceptions to the Trial Examiner's Decision on the grounds that the General Counsel had failed to comply with Section 10246 (b) of the Board 's Rules and Regulations requiring that such exceptions "shall designate by precise citation of page the portions of the record relied on ; . . . That section further states that "any exception which falls to comply with the foregoing requirements may be disregarded." Although we do not condone the failure to comply with the Board's Rules and Regulations, we deny Respondent' s motion in the Instant case on the grounds that the General Counsel's failure to cite In his exceptions the pages in the record relied upon was not prejudicial In his brief , the General Counsel has fully and precisely cited the pages upon which his arguments in support of his exceptions relied. 8 Subsequent to the transfer of this case to the Board , Respondent filed a motion to reopen the record for the purpose of taking evidence from Paul Miller to the effect that certain testimony given by Miller and credited by the Trial Examiner was untrue. In crediting Miller's testimony , the Trial Examiner discredited Personnel Director Matheson's contrary testimony relying "upon Miller's positive and unequivocal denial and his de- meanor while testifying at that point , as well as a lack of confidence in much of Matheson's testimony." Respondent contends that the record must be reopened to take the proffered evidence "for the purpose of permitting the Trial Examiner to re-examine , redetermine and modify the findings made by him based in whole or in part on Matheson 's testimony." It argues that it is "obvious " that the Trial Examiner's view of Matheson 's credibility as a witness was substantially affected by the direct conflict between his and Miller 's testi- mony and "that this belief on the part of the Trial Examiner that Matheson had deliberately contrived and espoused a fabricated lie concerning a conversation with Miller , severely colored the Trial Examiner's view of Matheson as a truthful witness." The motion is denied. The evidence need not be received insofar as it affects the disposi- tion of the allegation of the complaint that Miller was unlawfully discharged , for we adopt the Trial Examiner's recommended dismissal of that allegation . Nor do we see merit in Respondent's efforts to have the Trial Examiner reexamine and redetermine findings based in whole or in part on Matheson's testimony. There is simply no basis for Respondent's assertion that the Trial Examiner viewed Matheson 's contradiction of Miller 's testimony as the espousal of a deliberately fabricated Ile. Moreover , It Is not true that the Trial Examiner's discrediting of Matheson's testimony on the point in question colored his evaluation of Matheson 's general credibility ; rather it is the other way around , for the Trial Examiner credited Miller on the basis of Miller 's demeanor and a lack of confidence in much of Matheson's other testimony . We have carefully reexamined all of the Trial Examiner's factual findings and it is apparent to us that such findings are based on the most careful appraisal and weighing of all relevant testimony of all witnesses , including Matheson , and that, In no instance, did the Trial Examiner reject Matheson's testimony on the ground that he was generally an untruthful witness. 8 Add the following Immediately below the signature line of the Appendix attached to the Trial Examiner's Decision: NOTE.-We will notify the above-named employees 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. SCHNEIDER MILLS, INC. 1137 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon charges of unfair labor practices filed by Textile Workers Union of Amer- ica, AFL-CIO on November 17 and December 2 and 23, 1965, against Schneider Mills, Inc. and Jimmy and Josh, Inc., herein sometimes referred to as Respondent or Company, the General Counsel of the National Labor Relations Board issued a complaint and notice of hearing dated February 1, 1966, alleging that Respondent had engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, herein called the Act. On February 4, 1966, Respondent filed an answer admitting many allegations of the complaint but deny- ing the commission of any unfair labor practices. A hearing was held before Trial Examiner George J. Bott in Statesville, North Carolina, on April 5 and 6 and May 10 and 11, 1966, at which all parties were represented. Subsequent to the hear- ing, General Counsel and Respondent filed briefs which have been carefully considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION Schneider Mills, Inc. and Jimmy and Josh, Inc., are a single integrated enterprise engaged in the business of manufacturing textiles and textile products with principal offices and place of business at Taylorsville, North Carolina. During the period immediately prior to the isuance of the complaint, Respondent manufactured, sold, and shipped finished products valued in excess of $50,000 to points and places out- side the State of North Carolina, from its Taylorsville, North Carolina, plant. Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Textile Workers Union of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The setting and the issues The Union began to organize Respondent's approximately 400 production and maintenance employees in early September 1965, and a small group of employees attended a union meeting on September 10, 1965. On September 15, 1965, Respond- ent discharged Thomas Arrington, Rondy Tedder, Luke Warren, John Pennel, David Martin, and Lynford Kerley. Pursuant to a Direction of Election issued by the Regional Director of the Board on October 13, 1965, an election among the employees was held on November 5, 1965. The Union won the election. Employee Melvin Wood was discharged on the night of the election. Dorothy Feimster was discharged on November 27, 1965, and Paul Miller was discharged on December 6, 1965. The complaint alleges that all these employees were discharged because of their union or concerted activities, but Respondent contends that they were dis- charged for cause and that, in some cases, it did not know they were members of or active in the Union.' The complaint also contains a substantial number of allegations of independent violations of Section 8(a)(1) of the Act, such as coercive interrogation, but Respondent denies them all. B. The discharges on September 15, 1965 1. The facts Thomas Arrington began to work for the Company as a loom fixer in early 1958, and he was soon promoted to weaveroom supervisor, a job he held until he quit in 1962 to work for another company. Within a few months, he returned to I General Counsel amended the complaint during the hearing to strike the name of Grady Jolly from the allegations of discrimination. 264-188-67-vol. 161-73 1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent as a loom fixer and was again made 'a supervisor within a short time, where he remained until July 1965, when he was demoted to fixing looms. The cir- cumstances surrounding his removal from supervision in 1965 are somewhat in dis- pute, but it is clear, and I find, that Respondent was dissatisfied with Arrington's performance as a supervisor when he was returned to loom fixing. On September 10, 1965, Arrington went to the first union meeting with four other employees? Arrington had a conversation with Plant Manager Gordon Mackenzie sometime before noon on September 14. Arrington testified credibly, but ,Macken- zie's verson was different, that Mackenzie stopped him and asked him if he had heard any talk about a union in the plant and if it were "serious." Arrington told him that it was "serious," and Mackenzie asked him if he would supply the names of employees who were in favor of the Union. Arrington told Mackenzie that he could furnish one name-his own-and he added that Mackenzie would probably fire him for telling the truth. Mackenzie then asked what employees hoped to gain from a union, and Arrington said they wanted better working conditions, higher wages, and paid holidays, but Mackenzie replied that conditions at the Company ranked with the best in the industry. At 11 on the morning of September 15, Paul Ingram, Arrington's immediate supervisor, took him to Superintendent McGee's office. Personnel Director Mathe- son was with McGee at Plant Manager Mackenzie's instructions, and Arrington's final paycheck had already been prepared. McGee told Arrington that he was being terminated because his performance as a loom fixer was not satisfactory. Arrington protested that the stated reason was false, but McGee insisted it was not, and paid him off. Rondy Tedder, normally employed on the first shift as a weaver under Paul Ingram, had reported for work at 3 a.m., on September 15, as an extra hand on the third shift. Shortly after he arrived at work, Clarence Annas, supervisor on the third shift, told Tedder that he had heard some union "talk," and asked him if he had heard anything. When Tedder replied that he had heard something about it, Annas asked him if he was in favor of a union, and Tedder said he was. Annas wanted to know "how serious" the talk was, and Tedder said it was "real serious," in "all shifts" and "all departments." Annas said he could not see how anyone would favor a union, but Tedder replied that "we would see." About an hour or so later, Supervisor Hubbard asked Tedder to report early the next day to assist him on his shift, and Tedder told him that he would if he had not been fired before then. Hubbard asked him why he thought he might be discharged, and Tedder told him about his conversation with Annas. Hubbard also asked Tedder if he were in favor of the Union, and how "serious" the matter was. Tedder told him he was in favor of the Union, and Hubbard then wanted to know who the "main leaders" were. Tedder refused to mention any one, but he repeated that the thing was "serious," on "all three shifts of all departments ..." Tedder continued to work on into the first shift on September 15, and, at approximately 9 a.m., he asked his supervisor, Paul Ingram, if he thought he would be discharged that day. When Ingram asked why, Tedder told him about his talk with Annas, saying, "I might as well tell you (what) I have done told them." Ingram then asked Tedder if he had signed a union card, and Tedder said he had. Tedder worked in the same department as Arrington, and he saw Ingram and Arrington return from the office after Arrington had been discharged. Noticing Arrington checking out his tools in Ingram's presence he deduced that Arrington had been discharged. Tedder testified that he approached Ingram and said, ".. . Paul, if you are firing him over this Union you might as well fire me, because I'm 100 percent for it." Arrington corroborated Tedder's testimony about what he told Ingram and I credit them both.3 Tedder then returned to work and Arring- ton left the plant. Approximately a half hour after Tedder had gone back to his job, Ingram appeared with his final paychecks and handed them to him. Tedder asked for a written termination notice stating the reason he was "fired," but Ingram insisted that the employee had "quit." Tedder said he had not quit and, if Ingram thought he had, he would return to work. Ingram took Tedder to McGee's office where Tedder waited for a half hour for Ingram to return. When Ingram reappeared he told the employee that the Company had run out of the particular termination form 2 Rondy Tedder , Melvin Wood, David Martin, and Paul Williamson. 3Ingram's version was that Tedder said, "If you are firing Tom Arrington, go get my time." SCHNEIDER MILLS, INC. 1139 the employee was insisting on. Tedder asked Ingram if the Company was going to postpone his discharge until it found the right form, and again Ingram insisted that Tedder had not been discharged, but had quit. When Tedder heard that, he repeated that he would go back to work, but Ingram refused to let him return to the mill. Ingram left Tedder alone again and was gone for a half hour. When he returned, he told Tedder that the Company had been searching for the correct form but could not obtain one. He asked Tedder to leave the plant, but Tedder maintained that he would not go without ". . . a slip to show what I was fired for." Ingram threatened to telephone the sheriff's office, and Tedder told him to go ahead. In a few minutes, Personnel Director Matheson appeared and gave Tedder a doc- ument which stated he had "quit." Once more Tedder protested that he had not quit and would go back to work. Matheson said that his position was based only on what others had told him, and he asked Tedder to visit his office to discuss the mat- ter further. In Matheson's office, Matheson and Tedder talked for awhile. Tedder said that Matheson asked him "what the people up there want," he told him that the employ- ees were "fed up" with the way the Company was run. According to him, the Labor Board and the Union were also mentioned during their talk. Soon the police arrived, and Tedder left peaceably with them. He was not arrested. Matheson did not deny the substance of Tedder's testimony about their talk before he was escorted from the plant, and I credit Tedder. Luke Warren had worked for Respondent for a number of years and was employed as a smash hand on the second shift under Overseer Boyd Isenhour when he was discharged on September 15, 1964.4 Warren testified, and I credit his testi- mony, that, on September 14, he was driving his car in Taylorsville and, while stopped for a traffic light, was waved over to the side of the road by Personnel Director Matheson who engaged him in conversation. Matheson asked him how he was getting along at work and whether he was satisfied. Warren replied that he was "overloaded and underpaid," and Matheson then asked if he had "heard anything about the Union being mentioned." Matheson added that he understood that "some girls were dissatisfied with their work and . . . would be the people a union orga- nizer would like to get in contact with." Warren said he had not heard anything and did not want to get involved. He mentioned that an employee had been fired for talking about a union at the Company some years ago and said he did not want to have anything to do with it. Warren said that Matheson appreciated his candor and stated that that was why he stopped Warren to talk with him. Regarding Warren's statement about someone being discharged in the past because of a union, Mathe- son made some remark to the effect that "innocent people or persons could be fired in circumstances like that." Just before the conversation concluded Warren told Matheson that if he did hear anything about the Union or union activities he would not tell Matheson. Warren said Matheson sarcastically replied " . .. that's your privilege," and walked off. On the next day, September 15, shortly after being assigned a task by Hines, his supervisor, the supervisor returned and told Warren to report "to the personnel office and pick up (his) check," because his work was "unsatisfactory." Warren wanted to know who had made such a charge, and Hines said he was told "not to mention any names," that he had not complained about Warren, and he did not want him "mad" at him. Warren went to the personnel office, as instructed, and told Matheson that he was there to get his final check. Matheson said he did not know what Warren was talking about, and sent him to Superintendent McGee. Warren went to McGee's office, but he had to wait for a half hour to see him , because John Pennell, another alleged discriminatee, was in McGee's office. Pennell came out in time and told Warren that he had just been fired. Warren entered McGee's office, and McGee told him in the presence of Supervisor Hines, that his work was unsatisfactory and he was "making a change on the smash job." Warren asked McGee when his work began to get "unsatisfactory" and where specifically had he erred, but McGee refused to amplify, stating that he would only say that Warren's work was unsatis- factory and that Warren was not going to get him to say more. Warren continued to protest his discharge, but McGee sent him to Matheson to get his check. A Isenhour did not testify, and Plant Manager Mackenzie admitted that he knew of no complaints about Warren's work. He said, however, that he thought Superintendent McGee was "covering up for some of his employees." 1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When Warren saw Matheson he asked him " ... who got me involved in this Union activities with all us getting fired here," but Matheson accused Warren of "jumping to conclusions" and asked him what McGee had told him. Warren told him about being charged with "unsatisfactory" performance, but Matheson said he was unfamiliar with that and admitted he had no reprimands or complaints against Warren in his file. The Company was advertising for help at the time, and Warren remarked that it seemed odd that the Company would fire so many persons when it was seeking new employees. Matheson said he did not "know anything about that." John Pennell was working as a loom fixer under Overseer Woods when he was discharged on September 15, 1965.5 He had worked for Respondent for about 10 years at the time, and he credibly testified that he had received no serious com- plaints from supervision about his work during that period. Pennell participated in the union organizing campaign before he was fired, but the record does not reflect the extent of his participation. Pennell was fired at the commencement of his shift of September 15. Supervisor Woods told him that his work was unsatisfactory, and sent him to see Superintend- ent McGee. McGee also told Pennell that the Company was not satisfied with his performance and intended to replace him with someone else. Pennell became angry, and told McGee he was "crazy as hell." He also suggested that the Union was involved in his discharge, but he said McGee made no comment about that. He reminded McGee that he had been employed for many years without complaint, but he said McGee merely repeated that "they weren't satisfied with my work and that they were going to get somebody in there to straighten it out." McGee sent Pennell to Matheson. Matheson told Pennell that he had known the employee for a "long time," but he did not know "what was going on." Pennell sug- gested that there might be a union connection, real or imagined, in his discharge. Matheson asked Pennell to explain his statement, but Pennell said he was angry, and walked out of Matheson's office after he got his paycheck. David Martin was working as a smash hand under Supervisor Clyde Hubbard when he was discharged on September 15, 1965. Martin had attended the first union meeting with four other employees on September 10. He worked his regular third shift on September 14, and was through at 7 a.m., on the 15th. At the end of the shift, Martin waited in the parking lot to contact other employees who were finish- ing work and give them union cards which he had stored in his automobile. As he was standing in the company of employees and waiting for employees to come out, Supervisor Hines asked him if he was "too tired to go home." Martin told Hines that he was waiting to distribute union cards to the employees. Hines made no com- ment.6 When the employees Martin was waiting for arrived, he went to his car, obtained the union cards, and distributed them. When Martin had finished his union business in the parking lot, he went home, ate breakfast, and rested, but at 9 a.m. he received a telephone can from Miller Walker, overseer of the entire third shift and Supervisor Hubbard's superior, sum- moning him to the mill for a talk. Martin went back to the plant and saw Walker, who took him to Personnel Director Matheson's office. Matheson made a few pre- liminary remarks, and then Walker told Martin that he had not been "keeping his job up." Martin, a regular smash hand, reminded Walker that he had been filling in as a weaver because the mill was short handed, and that he could not handle both jobs adequately. Martin's checks had been prepared, and he was given them and discharged. He admitted that his "smash board" 7 had not been fully taken care of on his last night of employment, but it also is a fact that he wove 4 hours that shift. There is no contention that a regular smash hand is expected to weave and still do as much work as a smash hand who does not weave during the shift. Mar- tin credibly testified, without contradiction, that there had been no prior complaints about his work. The only reason given by either Walker or Matheson for his dis- charge in his exit interview was his alleged failure to "keep his smash board up." 6 Woods did not testify. 6 Hines was an acting supervisor at the time, but he was made a permament supervisor in October 1965. Martin had referred to "union cards" as "blue cards," for they were so colored. Hines knew what a "blue card" was, for he had been shown a "blow up" of a union card in a supervisors' meeting and told to "keep an eye out for blue cards." I credit Martin's testimony about this exchange with Hines I The "smash board" is a list of looms made out by the supervisor for service by the "smash hand." A "smash hand" repairs broken warp threads. SCHNEIDER MILLS, INC. 1141 Nothing was said about any other derelictions, and Martin credibly testified that he attended his assignments in his regular fashion on the last day of employment. His immediate supervisor, Hubbard, did not contradict him, and, in fact, did not recommend his discharge. Lynford Kerley was also discharged on September .15. He had worked for Respondent in the past as a part-time watchman while attending school, and, some- time in 1965, he was given a full-time job running a shearing machine. On or about August 1, 1965, he was transferred to the cloth room where he packed cloth in boxes, transported them to the basement, weighed them, and recorded the informa- tion. He conceded that this job was "temporary," but he denied that he had ever told anyone that he intended to return to school. Kerley seems to have been the first employee-as far as the record in this case reveals-who used the word "union" in conversation with any of Respondent's representatives. At 10 in the morning of September 14, Personnel Director Mathe- son engaged Kerley in conversation. Matheson asked him how he liked his job, and, sometime during the ensuing conversation, the Union was mentioned , but Kerley was unable to say who first broached the subject. In any case, he testified that he told Matheson that he would be glad when the Union "gets in," because it would result in better working conditions. Matheson asked what "union," and Kerley answered, . the union they are going to get in here." According to him, Matheson asked for more detail, and Kerley said he could not give it, but was "for it" and would do anything he could to "bring it in." Matheson asked Kerley which employees were for the Union and distributing union cards, but Kerley said he could not say. On September 15, at the close of the day, Thompson, Kerley's supervisor, asked him to come with him to personnel where they met with Matheson. Matheson told Kerley that his work was satisfactory, but he must be laid off because of a "budget cut." He gave Kerley his checks and said he would be glad to give him a recom- mendation to any other employer. 2. Respondent's defenses and additional findings related thereto Albert Schneider, Respondent's vice president, made the decision to fire Arring- ton, Warren, and Pennell. Not only did Schneider make the decision to discharge these men, but he also initiated the action which led to their terminations without suggestion or recommendation from his subordinates. This much is clear from Schneider's own testimony, as well as Plant Manager Gordon Mackenzie's. Schneider testified that the decision to terminate Arrington, Warren, and Pennell was made on Tuesday morning, September 14. In all three cases, Schneider said, his decision was influenced by his belief that the employees were part of a "clique" who were being protected in their jobs by Superintendent McGee, despite their inefficiencies, only because they were "cronies" of McGee. He said it was his inten- tion to "clear that group out of the mill." In more detail and with respect to specific cases, he testified as follows: In Arring- ton's case, he said he should have been fired in July 1965 when Arrington was reduced from supervisor to loom fixer. According to Schneider, and McGee sup- ported him in this regard, the Company was not satisfied with Arrington's perform- ance as a supervisor and it was decided to terminate him. McGee had Arrington's checks prepared and intended to discharge him, but Arrington asked to be put back as a loom fixer, and McGee agreed. According to Schneider, McGee's retention of Arrington in July 1965 was an example of McGee protecting his "favorites" in the weaveroom. Schneider said he learned on Monday, September 13, that Arrington had recently applied for work at a textile mill in Statesville, North Carolina, called "Uniglass." This information disturbed him very much, because Arrington, whose "group of looms were equally poor in production" and who had been permitted to remain in employment at his own request, was " . now looking for employment in a com- petitor's mill." Schneider repeated that Arrington should have been terminated earlier in his career, and he concluded that, "The reason I got directly involved with it was when I had this conversation with Mr. Rodgers (of Uniglass) and was informed that he was now looking for another job, this infuriated me. This brought about Mr. Arrington's immediate discharge." On the next day, Tuesday, September 14, Schneider spoke with Plant Manager Mackenzie. He testified that he told him about Arrington applying for work at another mill, and ordered him to discharge Arrington, saying he " . . . hoped (he) 1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wouldn't have to find it necessary to' go out there and terminate Mr. Arrington myself." Mackenzie assured Schneider that he would take care of it. Mackenzie went out in the mill to fire Arrington immediately, according to Schneider, but he returned "in a very, very confused state" without having accomp- lished his mission and related a conversation he had.just had with Arrington. Schneider said that Mackenzie told him that when he asked Arrington why he had been at Uniglass, Arrington told him "he was behind the union movement." Schnei- der added that "There seems to have been some confusion with Uniglass and union in that conversation in the weave room." Mackenzie told Schneider that he had not dischargedArrington because of the "situation" which had developed, that is, Arrington talking about a union, and he asked Schneider for advice. Schneider said that he too was "quite upset" and did not know what action to take. He said he told Mackenzie that he would consider the matter and would "take some action the next day,"• if any action were to be taken. He maintained, however, that he had decided on Monday to discharge Arrington. Schneider's testimony does not reveal what he did in regard to considering the Arrington matter between Mackenzie's advice to him on September 14 and Arring- ton's termination on the 15th. The thread is picked up in Mackenzie's testimony, however. He confirmed Schneider's statement that Schneider told him about Arring- ton looking for a job at Uniglass. He said Schneider was "much disturbed about it," because of "the bad condition of the weave room at the time" and because of "the fact that we had difficulty in getting Mr. Arrington discharged by Mr. McGee." Mackenzie said he had asked Arrington about going to "Uniglass," and Arring- ton replied that this was a fact, but, according to Mackenzie, Arrington then said, "I am not the one that contacted the union, but I am all for it." This information "surprised" Mackenzie he said, and all that he could say to Arrington was "Why?" Arrington replied that " . we -don't have any intention of hurting the company." Mackenzie reported the incident to Schneider who decided to "sleep" on it. The next morning, September 15, Schneider told him that " . since we had agreed it was imperative that Mr. Arrington go, that he wanted to go ahead with it and with the other too." Mackenzie did not carry out Schneider's order personally; he told McGee to do it, and McGee fired Arrington. Schneider testified that he also decided to discharge Warren and Pennell on the same day he decided to terminate Arrington. He said that when he talked with Mac- kenzie on Tuesday morning, September 14, he advised him to terminate these employees, because he felt that McGee had been protecting them in their jobs despite unsatisfactory performance. He also said that Warren had been involved in the discharge of a female employee. According to Schneider, the employee was dis- charged for talking too much at work, but, in fact, Warren had been at fault and should have been fired. Schneider thought that McGee had handled this personnel problem "terribly" and unfairly. Schneider did not recall when the incident in which Warren was involved occurred. He added, however, that Warren did not appear interested in his work and wanted to get out of the industry, and, in addi- tion, he had also been "in trouble with the law." He did not amplify this charge. Pennell, as well as Warren and Arrington, was one of McGee's "cronies," Schneider said, and had been favored out of friendship. He stated that Pennell was doing a poor production job and that a recent transfer he had obtained indicated that he was part of a "little group of people" that McGee was "catering to." Although Schneider thought Pennell's production was low, he did not check his production before he decided to discharge him. Mackenzie corroborated Schneider's statement that he told him on September 14 to get rid of Warren and Pennell along with Arrington. He testified that "During that conversation with Mr. Schneider on Tuesday morning, he also mentioned the fact that Johnny Pennell and Luke Warren would-have to go also, because he was very much upset about the attitude McGee had toward these people. He felt that they were getting too close together and destroying the morale of the rest of the people." Schneider was involved in Tedder 's discharge too. He said that Overseer Ingram came into his office, where Mackenzie happened to be at the moment, and told them that when ". . he went out to discharge Tom (Arrington), that Rondy Tedder had come up to him and said, `If you are going to fire Tom, you had bet- ter get my time too ,' or something to that effect." The matter was discussed briefly, Schneider said, and Ingram was told to terminate Tedder. Mackenzie testified that Ingram told him about the Tedder incident, and he instructed Ingram that, if, that was Tedder's "attitude," to pay him off. Ingram testified that Tedder told him SCHNEIDER I MILLS, INC . 1143 while he was checking Arrington out of the mill, "If your are firing Tom Arring- ton, go get my time." He said he then told Mackenzie and McGee about it, and they told him to pay Tedder off. Ingram and Mackenzie did not mention Schneid- er's presence, and Schneider did not indicate that McGee was involved in the deci- sion to fire Tedder. Ingram conceded that Tedder told him he had not quit, but would go back to work, and that he insisted that Tedder had quit. He took Tedder to McGee's office, where Matheson talked with Tedder. Matheson's account of his contacts and conversation with Tedder while Tedder was being discharged is essentially like Tedder's. He conceded that Tedder insisted that he had not quit and wanted some papers showing that he had been fired, but he also said he did not hear Tedder offer to return to his job. Miller Walker, overseer on the third shift, seems to have been the only super- visor directly involved in David Martin's discharge on September 15, at least as far as the record discloses. He testified that he saw Martin away from his job sev- eral times on his last night of work. According to him, an unnamed supervisor told him that Martin was "patrolling" over the mill, and so Walker began to watch him closely. He said he found him in the canteen twice, the toilet once or twice, in the acetate department, and away from his job talking with someone, whose name he could not recall. Walker said he thought about firing Martin "on the spot," but he decided to talk with his "superiors" in the morning. He said he discussed the matter with "higher officials" and recommended Martin's discharge, because he was not taking care of his job. He said Martin had not kept up with his smash board, and although Wallker realized that Martin had been weaving that night, Martin had not tried to catch up with the smash board listings, but had "skipped" around the board. Walker did not name the "superiors" or "high officials" of Respondent he consulted with about Martin, and there is nothing in any other official's testimony about a consultation. Walker did not warn Martin about being out of his depart- ment, but he explained that he does not normally talk with employees, but rather communicates with their supervisors, and lets them deal with the employee. Hub- bard, Martin's supervisor, did not recommend his discharge, and he had inspected Martin's smash board that night and made no recommendation to Walker on the basis of its condition. Lynford Kerley's job was temporary, according to Respondent's witnesses, and he was eliminated on September 15 because his job duties were combined with those of other employees in line with budget requirements and prior plans. Nathan Lipshitz, secretary of the Company, whose duties include responsibility for cloth packing and shipment, said Kerley's job included transporting cases of cloth, which had already been packed in the packing area, to the basement for weighing. There were no scales in the packing room while Kerley was employed, but it was planned to have the cloth weighed there and thereby eliminate the task of moving the cloth for weighing. He said the scales were installed about a week before Kerley was let go and this resulted in his job being eliminated. He also said Ker- ley's job was temporary and Kerley was assigned to it because he had told Lip- shitz that he intended to return to school in the fall. Plant Manager Mackenzie corroborated Lipshitz in all essentials with respect to the elimination of Kerley's tasks and the necessity of living within budget. He instructed Thompson, Kerley's immediate supervisor, to discharge Kerley for those reasons, he said. Personnel Director Matheson testified that Thompson told him that Mackenzie had ordered him to live within his budget and eliminate Kerley. Thompson brought Kerley to personnel, and Matheson had his final paychecks prepared. As Kerley had testified, Matheson agreed that Thompson told Kerley that he was being let go for budget reasons, and none other, and that Kerley had done a good job. Matheson admitted to a conversation about unions with Kerley on the morning of September 14, but his version was slightly different. He said Kerley asked him if Respondent had moved its plant to its present location because of a union. Matheson made some equivocal remark, he said, which caused Kerley to tell him that the plant was being organized by a union at that very moment. Matheson stated that he thought Kerley was joking, and he tried to find out what Kerley was talking about. Kerley repeated what he had said and maintained that he did not know who was doing the organizing except that it was "some fellow upstairs." Matheson testified that he did not recall Kerley expressing how he personally felt about a union at Respondent's plant. 1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Analysis, additional findings, and concluding findings regarding the September 15, 1965, discharges I find and conclude that Respondent discharged Thomas Arrington , Rondy Ted- der, Luke Warren, John Pennell , and David Martin because it knew or believed they were engaged in union activities , but that General Counsel has not established by a preponderance of the evidence that Lynford Kerley was discharged in vio- lation of the Act. Respondent knew as early as 10 o'clock in the morning of September 14, 1965, that the union campaign among its employees had begun . Regardless of whether employee Kerley told Personnel Director Matheson how he felt about the Union's efforts, Matheson agreed that Kerley told him that "some fellow upstairs" was organizing the mill "right now," and he did not deny, and I find, that he asked him who was distributing union cards . Plant Manager Mackenzie admitted that a union organizing effort was mentioned in his conversation with Thomas Arrington before noon on September 14, even though he said that Arrington mentioned it first. I find that his testimony to the effect that when he mentioned "Uniglass" company to Arrington, the employee spontaneously volunteered "union" infor- mation, is incredible as being one of the too many strange coincidences suggested by Respondent to explain its actions , and because I credit Arrington generally on the basis of his demeanor and the plausibility of his account . I find in his testimony additional evidence that Respondent not only knew that the Union was active, but interrogated employees about their activities as well. Additional evidence of Respondent's knowledge of and interest in its employ- ees' activities is found in the meeting between Matheson and Luke Warren in downtown Taylorsville at noon on September 14. Here again , Matheson did not deny the substance of an employee's testimony, but disagreed only about detail. I find that he asked Warren if he had heard anything about a union and that, after Warren mentioned an incident involved in a prior organizing campaign, Matheson agreed that "some innocent people could get hurt." Although Matheson said that his inquiries were not about unions as such and that he was merely interested in the "attitude" of employees, I find that he actually interrogated War- ren about the campaign then in progress , and that Warren told him that if he did find out anything he would not tell Matheson . Matheson's version that his meeting with Warren was casual and not at all related to the Union, occurring as it did soon after the Union started to organize and 2 hours after Kerley told him that the mill was being organized , is another explanation of a coincidence which I do not accept. Respondent's vice president, Albert Schneider, testified that Matheson would be expected to report any knowledge he had about union activity in the mill to Plant Manager Mackenzie who would then report it to Schneider . He conceded that he became aware at approximately 1 o'clock in the afternoon of September 14 that there was union activity in the mill. Respondent not only knew that the Union was organizing on the morning of September 14, it also opposed its employees' union activities. As just set forth, high officials interrogated employees about the union activity as soon as they learned of it, and Matheson expressed the opinion that "innocent persons" could suffer. The inquiries were not only about activity generally but also concerned with the activities of other employees . Respondent was interested on September 14 in find- ing out who was behind the drive . Respondent's efforts to find out what was going on in the union field continued through September 15. At 3 a.m. on Sep- tember 15, before anyone had been discharged, Rondy Tedder was interrogated by Foreman Annas. As set forth earlier, Annas, after asking Tedder if he had heard any union "talk," indicated concern about it by inquiring "how serious" it was and stating that he could not understand how employees would favor a union. Later in the day, Hubbard, another supervisor, wanted to know from Tedder "how serious" the matter was and who the principal leaders in the activity were. I dis- credit both Hubbard's and Annas' denials of Tedder's testimony . Annas was vague and uncertain in his testimony about the union organizing efforts and about con- versations with employees generally. Hubbard, I found a particularly unbelievable witness in his version of Wood's discharge, as set forth below. Other agents of Respondent's, including Albert Schneider, interrogated employ- ees about the Union as the Union 's campaign progressed, thereby indicating Respondent's opposition to it. According to Melvin Wood, Schneider made a speech against the Union the day before the Board election. During the day, Wood was SCHNEIDER MILLS, INC. 1145 asked three times , by supervisors for his opinion of, Schneider's talk. Schneider himself, a• week or so before the election; told employee Gloria Hubbard that the "damn union . . . was a bad thing" and there were certain disadvantages flowing from it; He asked- her how she felt about it, and when she gave an equivocal answer, he replied that the Union did not have a chance. Schneider also told Hubbard that employees told him which employees, were for and against the Union. Schneider denied that he made these statements, but I discredit him. His explanation of his visits to employees at their work stations before the election as being connected with inaccuracies in the , Company's mailing list, I found incredible.8 I am also unable to believe Schneider's explanation for his participation in the discharges or the considerations which. he said motivated him to move when he did. The number and timing of the discharges-six, just a day after Respondent learned about the union activity-is some evidence that they may be union related, but, in, addition, the reasons Respondent offered to justify the terminations will not stand, scrutiny. Basically, Schneider said that he fired Arrington, Pennell, and Wood because he wanted to "clear . . . out of the mill" a "clique" of inefficient and otherwise unsatisfactory employees which Superintendent McGee had been protecting for a long time, and that his action was triggered by his recently acquired knowledge that Arrington was ungratefully looking for a job at a competitor 's mill. Certain "coincidences" in the case which are odd enough have already been mentioned. Arrington's confusing the name "Uniglass" with "union," according to Macken- zie and Schneider, and spouting a confession of his union activities with a plea that he meant Respondent no harm; Matheson's talk with his friend Warren about employee "attitude" right after he learned about the union activity from Kerley; Schneider's tour of the plant to correct inaccuracies in employee addresses just before the election; but the oddest of all' is the speed with which a long delayed "house cleaning" occurred when Respondent learned that the plant was being organized by the Union. I cannot accept the explanation of this additional coinci- dence for these reasons: There is not any hard, specific, and objective evidence that a "McGee clique" existed in Respondent's plant. The only evidence in the case that there was is in Mackenzie's and Schneider's generalized conclusions. As a matter of fact, Frank Matheson, personnel director, testified that he had never heard the "statement" that there ". . was a McGee clique out there and that they weren't performing their job." He also said that he first learned that Schneider had given the com- mand to fire Arrington when Schneider testified in the hearing in this case. Per- sonnel's unawareness of Schneider's effort to cure an unfair condition, which Mackenzie claimed was destroying "morale," is a good indication that such a situ- ation did not exist. Moreover, Paul Ingram, former supervisor who replaced McGee as superintendent of weaving, said he did not know whether Arrington was a "good friend" of McGee, and also admitted that he did not know whether there are any "employees left in the weave room who- were friends of Wayne McGee." It appears that if a clique of McGee proteges existed, Ingram was not aware of it. Schneider also testified that Arrington should have been fired when he was reduced from a supervisory position to a loom fixer and that this factor "infuri- ated" him when he learned that Arrington was seeking work elsewhere. His testimony here is inconsistent, however, for he also testified that when Arrington was set back from supervision "the decision to terminate Mr. Arrington did not include or preclude any possibility of his remaining with us." Moreover, Schneider admitted that he saw Arrington working in the mill after he was terminated as a supervisor, and McGee credibly testified that, although he intended to terminate Arrington, when Arrington asked to be kept on as a loom fixer, he retained him in "the company's interest," because he had a good reputation as a loom fixer. In, my view, Arrington's interest in the Union and not in other employment is a more plausible explanation of the stimulus which "infuriated" Schneider. Schnieder's testimony also appears contradictory in regard to Pennell. He said his production was low, but it appears that no check was made of it before his discharge. Similarly, in regard to Warren, according to Schneider, in addition to being part of a clique, Warren should have been fired when a female employee $ Other acts of interference, restraint, and coercion in violation of Section 8(a) (1) of the Act are set forth in section III, E, infra. 1146 DECISIONS OF .NATIONAL LABOR RELATIONS BOARD was discharged:' It _ appears, however, that the incident happened at least 6 months before Warren' was actually. discharged and no reference was made to Warren about it, or about other matters which Schneider touched on in. his testimony,' when Warren was discharged. In' my opinion, these matters -were afterthoughts used to strengthen the asserted basis for discharge. Another internal contradiction in. Respondent's account of Arrington's, Warren's, and Pennell's relationship with McGee is McGee's own 'direct participation in their discharges. Schneider said he sent Mackenzie out'to fire Arrington on September 14, because he was a member ofI McGee's coterie, who was looking for another job and was an unsatisfactory worker to boot. While he was at it he decided to rid the Company of other mem- bers of the band, and he told Mackenzie to fire Pennell and Warren too. Yet, after a pause'•for 24 hours to consider the union aspects of the problem, McGee, the group's alleged protector, was assigned to and did fire them all. It is more than suspicious that McGee would be entrusted with this task in the, circumstan- ces asserted. Moreover, when he originally demoted Arrington from supervision he had no representative of the personnel department present. When Arrington was' fired as loom fixer, McGee had Matheson present. Matheson was not there to check on McGee, because, as already stated, Matheson did not know at that time that Arrington was supposedly a member of a clique whose discharge had been commanded by Schneider. I also find that, in addition to relying on a fictitious clique and otherwise inflat- ing past derelictions of the discharges, Respondent's witnesses exaggerated their deficiencies as workmen. There is no question but that the mill was operating below efficiency at all relevant times. Former Superintendent McGee unhesitantly conceded it, but his testimony that the plant efficiency depends upon the efficiency of all employees, not just rank-and-file, such as weavers, smash hands, loom fixers, and other service employees, but on supervision and higher management as well, and on the quality of the machines and the raw materials, is sensible and uncontradicted. But more significantly, there is no evidence of any substance that Arrington, Warren, and Pennell were less efficient than an average employee, and, on the other hand, they appear to have been as good or better than the average. McGee testified credibly that Warren was known as "the best smash hand on all shifts," that Pennell was a loom fixer on a "par" with others, although he was admittedly dissatisfied with the fixers as a class, because efficiency was low, and Arrington was "as good as any" of the loom fixers.9 With respect to Arrington, Warren, and Pennell, whose discharges were decided by Albert Schneider who initiated the action to effect them, I find and conclude that the reasons given by Respondent are pretextual and not the real reasons, but that said employees were discharged for discriminatory considerations. By such discharges Respondent violated Section 8(a)(1) and (3) of the Act. I also find that David Martin's discharge was part of Respondent's effectuation of Schneider's decision to eliminate all known or suspected union adherents. Over- seer Walker's testimony was vague and implausible, and I do not credit it. He never disclosed who the "supervisor" was who told him that Martin was "patrol- ling" the mill instead of working, or who were the "superiors" or "higher offi- cials" of the Company he consulted with about Martin. Martin' s discharge on September 15 along with the others is questionable enough when it is considered that he attended the September 10 organizational meeting with three other dis- chargees and had also distiibuted union cards to employees on the morning of his discharge. When other factors are added, such as the absence of prior com- plaints, the telephone call to his home to return to work to be fired, no mention of his being out of his department when he was discharged, the fact that his own supervisor did not recommend his discharge, apparently was unaware of Martin's inattention to work and was not consulted by Walker, who said he did not wam Martin because he leaves that chore to his supervisors, the fact that Martin was admittedly trying to run two different jobs during his last few days of employment and, concededly, was not expected to keep up with both, the conclusion that the real reason for Martin's discharge lies elsewhere is almost compelled. Martin was a credible witness, in my opinion, and I find, on the basis of the above considera- tions and upon the considerations generally present in Arrington's, Warren's, and 9 A word about McGee's credibility. He had been discharged by respondent in October 1965, because Respondent was dissatisfied Kith his services He appealed to bear no animus, at least he impressed me as testifying calmly, without exaggeration, and in good humor. He appeared to answer whatever questions were asked truthfully and dispas- sionately. No one probed his basic motivations in the discharges, and be did not volunteer. SCHNEIDER MILLS, INC. 1147 Pennell's case, that Respondent knew or suspected that Martin was a union adher- ent, that Walker did not discharge the employee without consulting with Schneider, that the reasons given to justify Martin's discharge are specious, and that Martin was discharged because of union considerations. By such discharge, Repondent violated Section 8(a)(1) and (3) of the Act. Respondent knew that Tedder was active in the Union. Supervisors Annas, Hub- bard, and Ingram were made aware of it during his last day of employment, and I have found that he told Ingram that, if Arrington was being discharged because of the Union, Ingram could fire him too, because he was in favor of the Union. Arrington was discharged, and Tedder went back to work. From this point on, Respondent's handling of the Tedder case from an industrial relations point of view was bizarre. Ingram consulted with Schneider, and Tedder was quickly dis- charged. When Tedder asked for a termination notice stating the reason for his "discharge," Ingram insisted that he had "quit." Tedder offered to return to work, but was not permitted to. Then for an hour, various representatives of management continued to insist that Tedder had "quit," while he insisted that he had not, and finally Tedder left the mill in the custody of the police. I cannot believe, in the light of Schneider's admitted direct involvement in the discharges of Arrington, Warren, and Pennell that very day, that he was not fully aware of all that occurred regarding Tedder. The only rational explanation of Respondent' s insistence that Tedder had "quit" and its haste to accept his resignation, it seems to me, was Schneider's desire to rid the Company of a friend of Arrington's and a mem- ber of the union "clique." Tedder's reaction to Arrington's discharge was under- standable. He credibly testified that he was not trying to get discharged, but actu- ally thought he would be the next to go after Arrington was fired. Respondent's reliance on his remark to Ingram about Arrington's discharge as an indication that Tedder quit or was insubordinate is pretextual in the light of all the circum- stances.lo I find and conclude that Respondent was substantially motivated by discriminatory considerations in discharging Tedder and thereby violated Section 8(a)(1) and (3) of the Act. Although Respondent's decision to reorganize an operation, live within a depart- mental budget, and thereby eliminate Kerley's job on the very day that it was purportedly engaged in a major personnel operation of house cleaning also seems oddly coincidental, I find, however, on the basis of other considerations, that a violation in Kerley's case was not established by a preponderance of the evidence. Kerley's job was temporary, by his own admission. I also credit Lipshitz' testi- mony that Kerley had told him that he intended to return to school, and that this was a consideration in placing Kerley in a temporary job. The task which Kerley performed was actually eliminated, and the department, is presently operated in a different fashion. Respondent's witnesses testified that the change had been planned for some time, and Kerley agreed that he had heard some talk about moving a scale to the packing room. Kerley was not offered another job, but he was assured that his work had been satisfactory and that he would be recom- mended for employment elsewhere. This is consonant with Respondent's evidence that Kerley did not indicate interest in other employment. Finally, I am of the opinion that the employee exaggerated the exent of the union activities he had engaged in before his discharge, and in addition, his statement that he was not adverse to speaking freely to Matheson about the union campaign and his own sympathies because certain employees had already been fired, did not ring true. As a matter of fact, no employees had been fired at the time Matheson was talk- ing with Kerley, but all alleged discrimination began on the next day, September 15. I find and conclude that Respondent did not discriminate against Lynford Ker- ley in violation of Section 8(a) (1) and (3) of the Act, as alleged. C. The discharge of Melvin Wood 1. The facts Wood was discharged on the morning of November 6, 1965, allegedly for report- ing for work the previous night under the influence of alcohol. Miller Walker, overseer of the entire plant on the third shift, testified that Hubbard, Wood's 10 Pauline Hepler, former payroll clerk, testified without contradiction, and I credit her, that the procedure in preparing Arrington's and Tedder's final checks was unusual in that no "pink slip" was needed, and that Mackenzie whispered the instructions about the checks to Hepler's supervisor. This was all done on September 15, not September 14, when Schneider said he sent Mackenzie out to discharge Arrington. 1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervisor. in, the weaveroom,, told, him, at the; start of the 11, p.m. shift that- he hadl received a., complaint . about- Wood'•s, drinking, and, being,"under- the influence. of: whiskey." Walker said- he- asked Hubbard if he could smell the odor of alcohol on Woods. breath, and Hubbard said, he could. Walker then,went-to. where Wood was working and asked him a routine question, about, the job, and, according. to Walker, when Wood, responded,. Walker was. able to smell, "alcohol, very, sstrongly." He, said he asked, Wood; what the odorr was,, and Wood. "mumbled, some; kind, of mouth, wash..' Walker testified, that, he instructed Hubbard, to bring Wood to, his office; and he talked, with him there. He. asked Wood; what was- wrong with his eyes,, and Wood. told him- that hey had gone all day, without sleep. Wood- conceded, that Walker, asked, him, a question' about, his, eyes. Walker, also, said that- he, accused , Wood of, drinking, and, Wood admitted; that- he had., Wood testified that- Walker accused, him, of being, drunk and, liable to fall in, a loom and injure, himself, but he, said, he told Walker that he. had- one drink, only. In any case, at- the end of the conversa- tion; Walker, said he.told,Wood-that his conduct;was-"against our company. policy" and, that. he had, to ask Wood. to "clock- out." Wood testified, and, Walker,, did not contradict, him;, that, Walker, told him, that he; was, not, firing- him, but to go home, get some, sleep, and see the personnel manager, in the morning. Clyde Hubbard, testified that,, just before, the shift change,•at 1.1, p.m., employee Mrs: Evelyn Hines.told him, that, Wood, was down in the lobby, where employees normally enter or gather before the shift starts, "feeling no pain." Being thus alerted; he watched for Wood when he reported in his department and observed that ". . . he, come through the door and he was waving his hands at everybody, and it. just wasn't, like Melvin to speak to anybody when he, came in hardly." Hub- bard waited, for Wood to. start work and asked him a question about the loom. He. said he could, smell whiskey when Wood responded. Hubbard wanted a witness, he stated, so, he asked employee Carrie Lowe to-check Wood' s; condition. He asked. her "to walk by him and see if she could smell, anything." Lowe did, according to Hubbard, for he said ". . . she walked up by him and- she, looked back and, nodded her head that she did." 11 Hubbard said that after Lowe had signaled him he spoke with Walker and gave him the. facts. He took Wood to Walker's office where, he said Wood admit- ted that he, had. been drinking and. had been up all day. Wood was, sent home and instructed to return the next morning: Early the next morning, Hubbard said he, met Matheson, the Company's- personnel director, in the company, parking lot, and, talked with • him about the Wood affair. Matheson. asked him what they "was going to do about it," and he told Matheson that "we could just have let him go." Hubbard then had Wood's checks prepared, and he was fired. Hubbard was aware that Wood' was in- favor of the Union and that Hines and Lowe were not. Mrs. Hines was in the lobby of the mill on November 5 sometime before 11 p.m. The, Labor Board election, which the Union had won, had taken place that day, and she said Wood "had the floor" and was "carrying, on," and "waving his, hands, and talking, big and loud, and I, could tell by looking, at, him that he wasn't feeling, nothing much." Hines is a weaver and Wood was a• loom, fixer, and Hines- said, that, as, soon as she clocked in, she told Hubbard that Wood was drinking and that she "wasn't going to be bothered with him that night." She added that, Wood had also come in,the department ". . waving his, hands" and asked her "Now, where in, the hell are all of your votes against the Union." She said she, only replied, "Melvin,, I have nothing to say to you," and walked away. She -too smelled alcohol when Wood was present. She said that Wood was "not drunk, but was well on his way." Mrs. Hines is, the wife of Supervisor -Hines. Carrie Lowe confirmed Hubbard's testimony about being asked by him to check Wood for the odor of alcohol. She said she asked Wood a question, but he did not reply. Nevertheless, she smelled alcohol, and then signaled Hubbard. Lowe went to union meetings, "on her own," she said, and she told her "supervisor" which employees attended. She did not know all the employees by name, but she said she "described" Arrington to her supervisor and gave him Wood's name. Wood had. been' instructed by' Walker to report to the personnel office on No- vember 6, which -he did', but he could not find Matheson, and-he saw Ingram, who was now superintendent of weaving, having replaced McGee. Ingram seemed' to know little of Wood's troubles the night before. He testified that when Wood "Wood said only Walker spoke to him before he was taken to Walker's office. He denied that Hubbard and Lowe had spoken with him before this. SCHNEIDER MILLS, INC . 1149 reported to his office Ingram informed him that he had a document indicating that "they terminated" him "for reporting to work under the influence." He said Wood commented that: "I wasn't drunk, but I had a few drinks." Ingram then referred `Wood to the personnel office. Matheson was apparently the last one to see Wood, but Wood had been termin- ated when Matheson interviewed him. He testified that when he came to work on Saturday morning, the day after the union election, Supervisor Hubbard was in the parking lot close to where Matheson parked his car. Hubbard told him that he "sent Melvin Wood home for coming into work drinking or under the influence the night before, and he had told him to come back up to my office and talk to me that morning." Matheson said that he asked Hubbard what he was, going to do about Woods, and Hubbard said "terminate him." Matheson told Hubbard that he would have to prepare a "termination notice stating the reasons for (Wood's) termination so (Matheson) would have something to talk to the employees about .. .. Hubbard prepared the form, according to Matheson, and Wood came into Matheson's office.12 Matheson told Wood that he was per- sonnel director and that " . . . one of his duties is to interview people who are terminated and to try to get all the facts . . ." He then told Wood that Hub- bard had indicated on his termination notice that Wood had reported for work "under the influence," and he said that Wood answered that he "had had a few drinks but . . . was not drunk." Matheson commented that Wood's supervisor did not charge him with being drunk, but only "under the influence," but, accord- ing to him, Wood said "no more about it and we gave him his check." Wood attended the first union meeting on September 10, 1965. Supervisors knew Wood was prounion, for Hubbard admitted it, and Wood had told Hubbard and Walker, as early as September 25, that he had signed a union card. The Board election took place on November 5, and Albert Schneider gave a speech to employ- ees the day before in which he opposed a union victory. Wood testified that, when he returned to his job after the talk, Walker asked him what he thought about Schneider's speech, and he told-Walker that Schneider "read it pretty good." Walker told him to "think about it." Later in the day, Ingram, Walker's superior, also asked Wood for his opinion of the speech. Wood replied that there were two sides to every story, and that he had his mind made up. Ingram also said, "think about it." Later, Hubbard asked Wood about Schneider's speech, and Wood responded that Schneider did not let the employees ask him any questions. Hubbard told him to visit the office if he had any questions, but Wood retorted that he had none, for he had attended union meetings and had made up his mind. When the Board election was over on November 5, Wood went to the union hall. He testified that he had one drink of liquor, and I credit this testimony, which was corroborated by David Martin. Wood credibly testified that he left the union hall at 9 p.m. for home, ate something, watched television, and went to the mill at approximately 10:30 p.m. I credit his testimony that he-had nothing else to drink between the time he had the beverage at the union hall and his arrival at the mill. When he arrived at the plant, he sat in the lobby with other employees and there was some talk among them about the Union. He said he did not see Evelyn Hines in the lobby, but he conceded that she could have passed him while he was talking to the other employees. Wood entered his department and went to work at 11 p.m. He testified, and I credit his testimony, that, in about 2 minutes, Walker came to his station, asked him a question about the work, and then asked what it was that-he smelled on his breath. Wood said it was mouthwash, and Walker left. In a few minutes, Hubbard arrived and took Wood to see Walker. Walker accused him of being drunk, which Wood denied, admitting, however, that he had a drink. As stated earlier, Walker sent him home, but said.he was not discharging him. Wood saw Ingram and Matheson the next morning. His version of the conversa- tions he had with them is slightly different from theirs, but the differences indicate that the final decision to discharge Wood had been made before he saw them. When he got to the plant, Matheson was not in his office, so he saw Ingram, who said he had heard that the employee was drunk the night before. Wood again denied the accusation, but admitted that he had had a drink. Ingram said that "they smelled it on your breath, and if you can smell it, you're drunk." Wood asked if Ingram wanted him to get his check and Ingram said he did. 12 The termination form Is not in evidence. 1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wood then saw Matheson who told him that he must discharge him. Matheson got Wood's check and termination slip which had on it the notation "under the influ- ence." He asked Wood if the statement were correct, and Wood said it was not. Matheson reminded him that he had admitted taking a drink and stated that if he had taken one he was "under the influence." He again asked the employee if the notation on the termination slip was accurate, and Wood told him that the reason was about as good as those he had given the others. 2. Analysis, additional findings, and concluding findings in Wood's case Respondent contends that it fired Wood for coming to work under the influence of alcohol and that such a discharge is not unusual, because other employees have been fired for the same offense.13 I do not believe Respondent 's defense or credit their witnesses in this respect , if, indeed, they actually testified that they did dis- charge Wood for that reason. I have raised a question about the real thrust or mean- ing of the testimony on this point for this reason. No one contends that Wood was actually drunk, but a real effort was made, I find, to suggest that this 21-year-old young man , who had an unblemished record, as far as this record shows, and who truthfully said the drink of hard liquor he had was the first in more than 6 months and that he has had none since that time , was in the same class as certain employees who had been discharged for being "staggering" drunk. Next, it should be recalled that Walker sent Wood home, he did not fire him out of hand, and he said he was not doing so, but rather he instructed the employee to go home, get some sleep, and see the personnel director in the morning. Wood, by someone's order, was already fired, however, when he appeared at the mill the next morning. Walker never explained how the decision was made to fire Wood or what happened in that con- nection between the time he sent Wood home, with orders to come back and talk with Matheson the next day, and the moment Matheson handed the employee his .final check. Ingram did not say he terminated Wood or made the decision in that regard. He testified that he told Wood he had ". . . a paper that they terminated you . .." when Wood saw him on November 6. Moreover, Matheson, who suggested that he was actually investigating the circumstances of Wood 's case when he talked to him, did not make the decision or even a recommendation about Wood-not to mention an investigation into the facts of the case-because he testified that, when he saw Hubbard that morning in the parking lot and Hubbard told him about Wood, he asked Hubbard what he was going to do about it, and Hubbard said "terminate him." Finally, Hubbard, who agreed that Matheson asked him what he was going to do about Wood , never explained how the final decision had been reached overnight, what role Walker played in it or if he recommended it. And if Hubbard was sug- gesting in his somewhat nebulous testimony that he made the decision , I discredit him, because he would not take that responsibility upon himself . He took no action in the first instance without talking with Walker, so he said , and Walker did all the talking when Hubbard brought Wood to him. I am satisfied from the testimony of all of Respondent 's witnesses that none of them made or even recommended the final action in Wood's case on the basis put forth by Respondent, that is, Wood reporting "under the influence." This in my view, explains the lack of clarity and positiveness in this testimony and the hiatus found between Walker's last advice to Wood that he was not firing him and Mathe- son's "interview" of the employee. When it noted that this was the day of the elec- tion which the Union had won and that Wood was known to be for the Union, when it is recalled that Walker had testified earlier that he would not fire David Martin without talking with "higher officials"-his own words-and that Mackenzie was "confused"-Schneider's words-when Arrington confessed his role in the Union to him, and so sought Schneider's advice before carrying out his order to fire him, it is a fair inference, which I draw, that, in this sensitive area, Walker took no action .regarding Wood without consulting some "higher official." He never said who it was and this, taken with the lack of precision and the obvious exaggerations in the testimony of Respondent's witnesses, indicates that the real reason for Wood's dis- charge was not alcohol and its effects. 13 Supervisor Sparks testified that he fired a person who was under the influence to the extent of "staggering," slurring words , and being "uncoordinated." Gilbert, who inciden- tally I considered unreliable in his testimony generally , admitted that one of the em- ployees he discharged was drinking heavily and was "drunk," but the other person he dis- charged was "not as drunk." SCHNEIDER MILLS, INC. 1151 Hubbard's action showed unusual treatment of Wood. He immediately reported Wood to Walker, he said, after Evelyn Hines, known to be antiunion, reported Wood's behavior to him. He assigned another antiunion employee to check on Wood further, and he also inspected the employee's condition personally. If this is so, it shows that Hubbard was being unduly cautious, but, in any case, I credit Wood's testimony that Hubbard did not speak with him that night, nor did Lowe, but that Walker was the first to approach him. I find that Hubbard reported Wood to Walker as soon as Hines told him about Wood after he saw Wood enter that plant. What motivated him in reacting against Wood is revealed literally by his own testimony and by a bias which I observed. Hines had testified that Wood was waving his hands and asked her where the nonunion votes were now. Hubbard said he saw Wood "waving his hands," and when asked if he associated the hand waving with possible joy that the Union had won the election, he replied that he did not know how happy that would make Wood, but it did not please him. He said Wood had never acted like that before and he did not think he should have been acting like that that night.14 Hubbard, Lowe, and Hines were all against the Union, and I find their par- ticipation in the events surrounding Wood that evening was principally motivated by resentment over the Union's victory and Wood's pleasure and part in it. I also find that Hubbard reported Hines' comments about Wood and Wood's apparent pleasure in the election results to Walker, and that Walker then confronted Wood with the drinking charge. I find that whoever made the final decision to fire Wood had all information about Wood at hand, including his union sympathies, and that these facts substantially motivated the decision. On the basis of the above considerations, I find and conclude that Respondent's asserted reason for Wood's discharge is a pretext, and that Respondent was moti- vated by discriminatory considerations in terminating him. By such conduct Respondent violated Section 8(a)(1) and (3) of the Act. D. Paul Miller's discharge on December 7, 1965 Miller was a weaver, and at the time of his discharge the Company was having an unusual amount of trouble with "trash" 15 accumulating in looms, and Sparks, Miller's supervisor, assigned each weaver the additional task of removing trash from a specific loom. This extra work was supposed to have been done a few minutes at a time while the employee's regularly assigned looms were running. It is the Respondent's position that Miller refused to do this extra task, as instructed, and was fired for insubordination. Don Sparks was Miller's supervisor at the time of his termination, but he was employed by another company at the time of the hearing in this case. Sparks testi- fied that he discharged Miller. He said that, on Miller's last night at work, he told Miller that he had not cut out any trash from his assigned loom that shift. Miller said he did not have the time, and Sparks remarked that he had "time enough to smoke a few cigarettes and stand around and talk. . ." and ought, therefore, to be able to take care of the trash. Miller replied, according to Sparks, that he smoked but four cigarettes a shift, and that Sparks "could either like it or lump it." Miller also said that he would cut only the trash that actually accumulated on his shift, not on others. Sparks said he returned to Miller after he had finished a tour of his area and again asked Miller to do what he had been told to do, but that Miller refused. Sparks discussed the incident with Walker, and it was decided to send Miller home. Sparks went back to Miller and asked him again if he would do the trash cutting, but Miller refused, and said that Sparks could fire him. Miller was rehired by Respondent on January 26, 1966. Sparks testified that he was summoned to Personnel Director Matheson's office at that time and Miller was present. He told Matheson that he had no "hard feelings" and no objection to Miller's rehire. He also said that, at that time, Miller admitted that he was in the wrong and that he would do his job properly in the future, including cutting trash. According to Sparks, Miller added that he knew that he was supposed to cut trash and he did not know why he refused to do it. "He commented later that Wood "was not waving his hands" when he reported to personnel the next morning. is "Trash" is debris from the yarn or warp, which, if permitted to accumulate, would stop the loom completely. 1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Matheson testified that he and Miller had participated in two unemployment com- pensation hearings concerning Miller's claim , which the Company was opposing. Dur- ing various conversations there and at the plant , Miller indicated that he needed work and told Matheson that he "guaranteed" to do what he was told. Matheson discussed Miller's request with other company representatives , and then telephoned Miller to arrange for him to meet with Sparks. They did, as Sparks had testified, and, at the meeting Miller stated that he should not have refused to cut trash as ordered, but would do so in the future . Sparks said he could not have ignored Miller's refusal , and Miller commented that "he asked for it," according to Mathe- son. The foreman and the employee agreed that they had no present "hard feelings," and Miller was rehired. Matheson also said that after Miller was rehired and Sparks had left the room, he asked Miller about his denying at the unemployment hearings that he had refused to obey a direct order. He said that Miller then admitted that he had so refused. Paul Miller denied that he had refused to cut trash or that he had ever admitted that he had. His version of the events surrounding his discharge and rehiring was as follows: He agreed that each employee is assigned one loom a day with instructions to clean it of trash in conjunction with his other work. He admitted that, around 10 p.m, Sparks asked him if he had cut a certain loom, but he told Sparks that his regular job was "running bad" and that he had not been able to do the extra work. He conceded that Sparks said at that time to do the trash cutting, and he said he told him he would try. He testified that Sparks came back at 10 : 30 p.m., asked him if he had cut the trash , and sent him home, with instructions to see personnel in the morning. He admitted that he still had not done the work at that time. Miller saw Matheson and Ingram, weaveroom superintendent, the next day. He said that both Matheson and Ingram talked with him "about doing what the super- visor told" him to do, and that Ingram said that they could not have anyone employed who "didn't do what the supervisor told them to do." He said he explained the difficulties he had with his regular weaving that night, and Matheson asked him if he "wanted" and "was willing to work." When he maintained that he was, Mathe- son told him to return to work at 3 o'clock that afternoon. Miller came to work at 3 p.m. as instructed , but his timecard was not in the rack. He went into his department and observed a new supervisor . He said that Sparks had been hospitalized . The new supervisor sent him to Ingram who took him into the personnel office. Ingram told the employee that "they had decided to let me go." His checks had been prepared, and he was discharged . He said he asked Matheson and Ingram "how long they thought they could get by with firing people like they were..." and that Matheson mumbled something which he could not understand. Although Ingram and Matheson both testified, neither mentioned this talk with Miller. Miller said that when he was rehired there was a conversation about cutting trash. His version was, however, that he told Matheson he needed work badly and that "if there was any misunderstanding about" his willingness to cut trash, he wanted to remove it . He denied admitting a past refusal to follow Sparks' order when he and Sparks met in Matheson's office. He also said that at the unemployment compensa- tion hearings he denied that he had refused to follow an order and that Matheson did not mention the hearings to him when he was rehired . He also denied that he said "he had asked to be fired ," or realized he had disobeyed orders, and he insisted that he did not admit to Matheson privately that , contrary to his testimony at the unemployment hearings, he had refused to comply with Sparks' order. Miller agreed that trash contributes to poor production, and he admitted that he had not been able to cut much from the warp during his last week of employment, but he said this was because his looms were running poorly. He also said that he had cut some trash from the assigned loom during his last shift , that cutting trash was "sort of secondary job" which , if not done immediately, could be finished the next day, and that prior to the night of his discharge , no overseer had ever spoken to him about failing to get trash out of the looms. Miller had engaged in union activity and Sparks knew it. He testified credibly and without contradiction that in early October 1965, something about the work caused him to tell Sparks that a union was needed in the mill to take care of such matters. He also passed out union literature at the Company's gate near the end of October 1965, and Sparks saw him, he said. SCHNEIDER MILLS, INC. 1153 Analysis, Additional Findings, and Concluding Findings in Miller's Case Although, like in Wood's case, there are certain gaps in the Respondent's account of Miller's discharge and rehire, nevertheless, in my opinion, General Counsel has .not established by a preponderance of the evidence that Miller was discharged for union activity. My principal reason for this finding is that Sparks impressed me as being a credible witness wih no animus toward Miller , and I believe, on the basis of his account, which sounded plausible and which was confirmed, in part at least, by Miller, that Sparks caused Miller's discharge because he believed that Miller was flouting his authority in the trash cutting matter. Removal of so-called trash from the looms is important. Miller admitted that when he told Sparks that he had not had time to clean his assigned loom, Sparks told him he seemed to have time to smoke cigarettes and talk. It seems to me that such evidence indicates that Sparks was honestly annoyed with Miller about the trash and not using it as a pretext for his later action of sending him home. Miller also conceded that Sparks asked him to "try" and get rid of the trash, even though he had told him that he had no time to do it. When Sparks returned and found that no progress had been made, it is understandable that he could have become even more aggravated by Miller's inaction. Although Miller denied that he had actually refused an order, he did not deny that he said he would only take care of the trash which accumulated on his shift, and I find that Sparks had reasonable grounds for believing, therefore, aside from the nature of the actual words used by Miller, that Miller was insubordinate. The statements made by Ingram and Matheson to Miller when they interviewed him the next morning are consistent with Sparks' testimony that Miller would not comply with his request. Ingram and Matheson, according to Miller's own testi- mony, talked about the necessity for following orders, and asked him if he was "willing to work." In addition, if Sparks' action in sending Miller home because of the trash incident was a pretext, it is unlikely that he would have done it on his own, and Ingram and Matheson would have been alerted to go along with it and not tell Miller to report back to his regular shift that afternoon.18 Finally, although alleged admissions against interest by one seeking reemploy- ment from those instrumental in causing loss of employment in the first instance may be viewed with a great deal of skepticism, Miller did concede that he told Matheson that, if there were any doubt about his willingness to cut trash , he wanted to dispel it, because he needed the work. This is not too far removed from Sparks' testimony that'Miller admitted that he was "wrong" and would "run his job and cut the trash, and is evidence that the incident, whatever emphasis a third party may place on it, was a real issue between Sparks and Miller.17 I find that the asserted reason for Miller's discharge is not pretextual, and I conclude that Respondent did not violate Section 8(a) (1) and (3) of the Act in this case. E. The discharge of 'Mrs. Dorothy Feimster on November 27, 1965 Feimster had worked for Respondent for about a year when she quit in July 1965 for personal reasons. She was rehired by Matheson and McGee in August 1965 into the "weaver's pool" to help out where needed under the supervision of Don Sparks.18 On September 28, 1965, Feimster was transferred from the weaver pool to a full-time job of weaving at a higher rate of pay. She worked at this job until her discharge on November 27, 1965, allegedly because her production was poor. 16 This is where the troublesome hiatus occurred . Ingram was Sparks' superior, and he and Matheson sent Miller back to work. Respondent did not explain why, and Ingram did not testify about why he changed his mind that afternoon and completed the discharge. He may have checked Miller 's account with Sparks again but if he did the record is silent. I note that Miller said that Sparks "had gone to the hospital ," and that is why there was a different supervisor on the shift. 17I do not credit, however , Matheson's statement, in effect , that Miller admitted he lied at the unemployment hearing. This is based in part upon Miller's positive and unequivocal denial and his demeanor while testifying at that point, as well as a lack of confidence in much of Matheson 's testimony. 18 McGee testified that Feimster agreed to "fit in where ever " she was needed. 264-188-67-vol. 161-74 1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Feimster testified that she became interested in the, Union and went to a union meeting on September 19, in Statesville, North Carolina, at which approximately 100 other employees were present. She said that on the following Tuesday, Super- visor Paul Ingram carefully watched her at her work and some time later took her to the personnel office for a discussion of her work. She was given a warning notice at that time which stated that her work was "defective and careless." The morning after the above warning and while Feimster was still working in the weaver pool, Feimster said that Ingram watched her at work, that "Mackenzie and Matheson were on" her job and that Schneider also "went over" her job "about three times," and "as a result of (her) experiences" that day she told Robert Free- man, what happened. Freeman advised her to let the Company know that she was "for the Union" and said he would send a telegram to Respondent. Freeman immediately sent a wire stating that "The union requests that the intimidation and coercion of Mrs. Dorothy Feimster be stopped immediately. The Union feels Mrs. Feimster is being intimidated because of her Union sympathy." Freeman signed the wire, and the Respondent agreed that it received it. While at work on the next day, Feimster told Supervisor Ingram that she was "working for this Union" and hoped it would organize Respondent. She said he just looked at her and said nothing. She also said, and there is no dispute about the fact that, after a short time, Ingram returned, took her to Matheson and asked her to repeat what she had just told him. Feimster did, and Matheson said that it is a "free country" and she need not apologize for attending union meetings. Mathe- son also told Feimster that when he and Ingram had her in for a talk a few days before they were not just finding fault with her, but were trying to help her adjust. Feimster admitted that there were certain things wrong with her work, "just like everyone," and Matheson said that if he thought he was being discriminated against he would look for other employment. Matheson made a record of Feimster's statements, but he said she did not have to sign it. One of Feimster's assignments in the weaver pool was filling "unifills," which is a device something like an oversized bobbin. According to Feimster, a few days after the above talk with Matheson and Ingram, Ingram informed her that another employee was returning to work, and she, therefore, was being transferred to the second shift as a regular weaver under Sparks ' supervision. Feimster took the new assignment and apparently produced efficiently for. a time. On October 12, 1965, however, Supervisor Sparks gave her a written warning about "low production" and warned her that she would be discharged if she did not improve. Feimster conceded that she was so warned, and she said she told him she would try to do better. On November 10, Feimster received another warning about low production and failure to cut trash from the looms , she said. Feimster had fewer looms to tend when she was first assigned to regular weaving than she did during her last weeks of employment. This is conceded, for Sparks had someone helping her at the beginning . Feimster also indicated that she was being unduly watched, or harassed, or was perhaps unfortunate. She mentioned a problem of "break-outs" caused by detergents used in cleaning the looms, down time caused by cleaning the looms, and an unusual amount of "mark-outs" of warps by her supervisor on her shift, as all contributing to her low production. On November 27, Feimster had a conversation with the plant electrician while at work. I credit her testimony that she asked him if he was "for the Union" and how many electricians he had "under him." He said he had five, but that there was no use talking with them about the Union, because they were against it. I also credit the undenied testimony of employee Billy Hubbard who said that he was in Supervisor Sparks' office on November 27 when the electrician entered, asked Sparks who was the "blond" working in the weaving room, and then related what she had just asked him. Sparks looked at Wood, another supervisor, and said that the electrician must mean Dot Feimster. At the end of the shift on November 27, 1965, Feimster was sent to Sparks' office and discharged. Sparks told her that he had warned her that she, would be terminated if her efficiency did not improve and, since it had not, he was letting her go. Sparks testified that he recommended Feimster's discharge because her efficiency was low and did not improve , despite his talks with her. In his opinion, the employee did not seem to be trying to perform creditably. Sparks said that when Feimster was placed on weaving full time he gave her responsibility for a full set of looms, and Feimster said she would do her best : At first another employee SCHNEIDER MILLS, INC. 1155 helped her with some of the looms, and the job went fairly well, he said, but when the other employee was taken away , Feimster's efficiency began to fall. He said he talked with her on occasion and tried to help her. Analysis, Additional Findings, and Conclusions in Feimster's Case Unassailed production charts in evidence show that for about 5 weeks Feimster's efficiency was just under 80 percent and then dropped, and during the 4 weeks preceding her discharge, did not reach 70 percent. Her efficiency was lower than that of other weavers doing identical work. Feimster tacitly admitted having prob- lems and poor production in her work, but she seemed to suggest that they were attributable to causes outside herself. I do not credit this testimony, for I find no evidence with any substance that she was unduly watched , and the testimony about more warps being "marked -out" on her shift and looms down more frequently for other reasons than was the case on other shifts was not impressive or plausible. I find that Feimster's production problems were not caused by any conditions which were not common to all other similarly situated employees. I also found Sparks a credible witness in this case . I credit his testimony, which was really not denied, that he warned the employee and actually tried to help her improve, but that she did not. The testimony about Feimster's union activities , the Union's telegram about her to Respondent, her conversation with the electrician and Sparks ' awareness of it, can be unduly stressed if it is considered out of context . Feimster was no more active than anyone else, as far as this record reveals, and she had told Matheson and Ingram as early as September 21 that she was "working" for the Union. Respondent was well informed, therefore, and the electrician's tale and Sparks' comment that he must mean Feimster add little to the case. Although most of Feimster's deficiencies as a weaver are tacitly conceded by General Counsel, he contends that Respondent knew that Feunster had little potential but promoted her anyway, in order to set her up for discharge after a decent interval of low production. The theory is not farfetched, and there is some evidence to support it. Feimster took the better paying job voluntarily and without protest, however, and she seems to have done as well on it as anyone else for a month or more. Her drop in efficiency was sudden and unconnected in time with any significant events relating to the Union-the election had been over for weeks, for example, when she was discharged . I am not prepared to say that her inefficiency was not the overriding consideration in her discharge, therefore, even questioning, as I do, the legitimacy of the transfer of an assertedly inefficient weaver-pool employee to a regular weaver's job when one supervisor at least considered her potential as a weaver low. I find and conclude that General Counsel has not established by a preponderance of the evidence that Dorothy Feimster was discharged in violation of Section 8(a)(1) and (3) of the Act. F. Independent violations of Section 8(a) (1) of the Act Earlier, I found that Plant Manager Mackenzie, on September 14, 1965, inter- rogated Thomas Arrington about the union activity in the plant and the names of employees supporting it. In view of the fact that Arrington was subsequently dis- criminatorily discharged, it is clear that Mackenzie's actions constituted a violation of Section 8 (a) (1) of the Act. It has also been found above, in the treatment of Tedder's case, that Supervisor Clarence Annas, on September 15, asked Tedder if he had heard about a union, and if he was for it. As in Arrington's case, this interrogation was a clear violation of Section 8(a)(1) of the Act. I also credit Bobby Meridith's testimony that Supervisor Annas, on or about September 30, asked what occurred at a union meeting held that evening, and said he knew the names of everyone who was at the meeting 30 minutes after it was over. Annas admitted that he talked about the Union with Meridith several times, but he said that he "always said it was (his) opinion" when he made a comment. He denied that he asked Meridith who attended meetings, and he added that this was unnecessary, because employees would voluntarily come to him and tell him all "he needed to know...:. Annas' use of the "in my opinion" technique seemed contrived, and he was vague about dates and other detail. As indicated, I discredit him, and I find that by his conduct in interrogating Meridith and creating the impression of surveillance of union meetings , Respondent engaged in an additional violation of Section 8(a)(1) of the Act. 1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD For the same reasons, I also credit employee Ned Miller's testimony that Annas told him, on November 6, 1965, just after the election which the Union won, that "things would be different now" because they were going back to the old company rules. This expression of displeasure and threat of reprisal because of the election results was a violation of Section 8(a)(1) of the Act. Employee Ethel Tomlin attended a substantial number of union meetings. She credibly testified, without contradiction, that, after every meeting, Supervisor Glen' Tevepaugh asked her who was present and what was discussed. In the circumstances of this case, such interrogation violated Section 8(a)(1) of the Act. Matheson's meeting and hailing down of Warren in Taylorville, on September 14,. and asking him if he had heard anything about a union, just a few hours after he had learned from Kerley that a union was organizing, was not accidental. Schneider and Mackenzie both said it was Matheson's job to report any union activity to his superiors. I find that by interrogating Warren and Kerley about the Union and employee activity in it, as set forth in detail in the treatment of their discharges, Respondent engaged in an additional violation of Section 8(a)(1) of the Act. I also find that, on September 15, Supervisor Ingram asked Tedder if he had signed a union card. Although Tedder opened the subject of union activity, this was after Annas had interrogated him about the activity. In the circumstances,, including the other coercive interrogation in the case and the discriminatory dis- charges, Ingram's conduct constituted a violation of Section 8(a)(1) of the Act. For like reasons, Hubbard's interrogation of Tedder, on September 15, and his, request for the names of the "leaders" was coercive and a violation of the Act.. Employee Martha Williams testified that about 2 weeks before the election, Albert Schneider asked her how she felt about the Union. Gloria Hubbard said' that a "week or so" before the election, Schneider interrogated her about the Union, indicated that there were certain disadvantages connected with it, and said that "he had people" who told him which employees were for the Union. Schneider admitted talking with each employee before the election, but denied making these- statements, but I have previously discredited him. By interrogating these employees and by creating the impression that Respondent was keeping employees' union activity under surveillance, Respondent also violated Section 8(a)(1) of the Act.19- I credit Sparks' denial that he had a conversation with Prevette about the Union. I have previously found Sparks to be a credible witness, and Prevette's testimony is somewhat vague, in any case20 On the other hand, I credit Paul Williamson's testimony that, sometime during the election on November 5, 1965, Supervisor Ingram asked him how he felt about the Union and stated that the employees would not benefit from a union. Ingram's inquiry, considered in the light of the acts of the interference, restraint, and coercion and discriminatory discharges, found above, was an additional violation of Section 8(a)(1) of the Act. 'B Employee Charlie Baumgarner testified that, while about to enter Paul Ingram's office in the line of work, he overheard voices coming from down the corridor. He said that lie knew at the time that one voice was Albert Schneider's and learned later, when he heard him talking, that the other voice was that of Respondent's counsel. Baumgarner testified that he heard Schneider say he would "fire every . . . one of them." The lawyer's voice said, "No, you won't you have fired your limit." Baumgarner heard a few more words and entered Ingram 's office. Respondent offered evidence of a sound engineer going to show that it was impossible for Baumgarner to hear voices coming from the conference room If he were standing where he said he was . Respondent also offered evidence through Schneider, however, to show that an almost identical conversation took place on the day Baumgarner said it did , but was between Schneider's brother, from the New York office , and Respond- ent's counsel , and involved legitimate organizational changes unconnected with labor prob- lems. The matter is not alleged or urged as a violation of the Act, but I find that Baum- garner credibly testified to what he heard and that it was Albert Schneider 's voice he heard. In view of the fact that Baumgarner heard only a portion of the conversation and it- could have involved normal business factors connected with Respondent 's efficiency prob- lems, I do not rely on it , except, as I have said , to indicate that Baumgarner was not in- credible, as Respondent contends. 20 I find no evidence of any substantial weight in Shumate's testimony about Supervisor- Tevepaugh . Shumate had no present recollection of the conversation , and the record does- not disclose the date of his affidavit for past recollection recorded purposes.. SCHNEIDER MILLS, INC . 1157 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The'activities of Respondent Company set forth in section III, above, occurring in connection with the ; operations of'Respondent''as described in section I, above; have a close, intimate; and substantial relation, to trade , traffic, and commerce among the several States, and, such of them as have been found-to constitute unfair labor, practices; tend' to lead' to labor disputes burdening and. obstructing commerce and the free flow of commerce. V. THE REMEDY It- having, been, found. that. the Respondent Company engaged in unfair labor practices, in violation of Section' 8(a)t(li) and (3) of the Act, it will be recom- mendedethat the, Respondent cease' and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. It will' be, recommended that Respondent offer employees Thomas, Arrington, Rondy Tedder, Luke Warren, and Melvin Wood immediate and full reinstatement to their former or substantially equivalent position, without prejudice to their seniority, and other rights and privileges,., and make them, whole for any loss of ,earnings, they. may have suffered, by, reasonr,of the discrimination against them, by payment* to them of a sum: of money: equal, to, that - which they would have earned as wages from the dater of the) discrimination against them to the date of offer of reinstatement, and in a. manner, consistent with Board policy set forth in F. W. Woolworth! Company„ 90 NLRB 289: Interest on backpay shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Since John Pennell' and) David Martin, were reinstated after the discrimination against, them; it, will, not be- recommended that, Respondent offer them reinstatement but only, make them; whole as in the cases, of the other employees set forth above for wages lost- from the date of discrimination to the- date of reinstatement. It will also be recommended that, the Respondent' preserve and make available to. the Board; upon, request, payroll and, other records' to facilitate the computation of backpay. It will also be recommended, in view of the nature of the unfair labor practices the Respondent has engaged in, that it cease and desist from infringing in any manner upon the rights guaranteed employees by Section 7 of, the Act. Upon the basis of the foregoing findings of fact and upon the entire record in ,the case, I make-the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and. (7 ) of the, Act. 2. Textile , Workers Union of America, AFL-CIO, is a labor organization within the meaning , of Section 2(5) of the Act. 3. By discrimination in regard to the hire and tenure of employment of Thomas Arrington, Rondy Tedder, Luke Warren, Melvin Wood , John Pennell, and David Martin, thereby discouraging the free exercise of the right guaranteed by Section 7 of the Act, and discouraging membership in the Union, the Respondent had engaged in , unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 4. By engaging in the conduct set-forth under section III, above, Respondent interfered with, restrained, and coerced its employees and has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. Respondent did not discharge Dorothy Feimster , Paul Miller, and Lynford Kerley in violation of'law 'as alleged in the complaint or violates Section 8 (a) (1) of the Act, except as, spcifically found herein. 6. The aforesaid- unfair labor practices are unfair labor practices affecting com- merce, within, the meaning of Section (6) and (7) of the Act. ,RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law and upon the entire record in the case, it is recommended that Respondent, its' officers, agents; successors, and' •assigns,'shall:" 1. Cease' and desit from: (a) Discouraging' membership in the Union , or in any other labor organization, by discharging, laying off, or otherwise discriminating in regard to the hire or tenure of employment of employees, or any term or condition of employment. 1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Interrogating its employees as to their sympathies for or activities on behalf of the Union, or any other labor organization, in a manner constituting interference, restraint, or coercion in violation of Section 8(a)(1) of the Act. (c) Threatening employees with reprisals, in order to discourage union mem- bership or activities. (d) Creating the impression among employees that it is engaging in surveillance, of their union activities. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choos- ing, and to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer to Thomas Arrington, Rondy Tedder, Luke Warren, and Melvin Wood immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make them and John Pennell and David Martin whole for any loss of earnings they may have suffered by reason of Respondent's discrimination against them as set forth in that section of the Trial Examiner's Decision entitled "The Remedy." (b) Notify the above-named employees if presently serving in the Armed Forces of the United States of America of their right to full reinstatement upon application in accordance with the Selective Service Act and Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and make available to the Board or its agents, upon request, all payroll records and other records necessary to analyze the amounts of backpay as set forth in "The Remedy" section of this Decision. (d) Post at its plant in Taylorsville, North Carolina, copies of the attached notice marked "Appendix." 21 Copies of said notice, to be furnished by the Regional Director for Region 11, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in, conspicuous places, including all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the said Regional Director, in writing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply herewith.22' 211n 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." 2 In the event that 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 It 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 Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in Textile Workers Union of Amer- ica, AFL-CIO, or any other labor organization, by discharging or refusing to reinstate any of our employees, or in any manner discriminating in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT interrogate employees concerning activities on behalf of the above-named or any other labor organization, in a manner constituting inter- ference, restraint, or coercion violative of Section 8(a)(1) of the Act. POST HOUSES, INC. 1159 WE WILL NOT threaten employees with reprisals, in order to discourage union membership or activities. WE WILL NOT create the impression among our employees that we are engaging in surveillance of their union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection or to refrain from any or all such activities. WE WILL offer to Thomas Arrington, Rondy Tedder, Luke Warren, and Melvin Wood immediate and full reinstatement to their former or a sub- stantially equivalent position without prejudice to seniority and other rights and privileges and make them and John Pennell and David Martin whole for any loss of pay suffered as a result of the discrimination against them. SCHNEIDER MILLS, INC., AND JIMMY AND JOSH, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) 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 provisions, they may communicate directly with the Board's Regional Office, 1624 Wachobia Building, 301 North Main Street, Winston-Salem, North Carolina 27101, Telephone 723-2911, Extension 2145. Post Houses, Inc. and Hotel & Restaurant Employees and Bartenders International Union, Local Union No. 397, AFL- CIO. Case 6-CA-3401. November 18, 1966 DECISION AND ORDER On July 5, 1966, Trial Examiner David S. Davidson issued his Deci- sion 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. Thereafter, the Respondent filed exceptions to the Decision, a supporting brief, and a reply brief, and the Charging Party filed cross-exceptions 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 [Members Fanning, Brown, and Zagoria] . 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 Exam- iner's Decision, the exceptions and briefs, and the entire record in the 161 NLRB No. 102.