J. B. Martin Co.

460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD J.B. Martin Company and Textile Workers Union of America, AFL-CIO, CLC and William A. Ricard , An Individual. Cases 11-CA-3019, 11-CA-3039, and 11-CA-3080. May 9, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On February 15, 1967, Trial Examiner A. Bruce Hunt issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal as to them. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner'2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that Respondent, J.B. Martin Company, Leesville, South Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. ' The Respondent contends that the Trial Examiner improperly discredited the testimony of all its witnesses. It is the Board's established policy not to overrule a Trial Examiner's resolutions as to credibility unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Such a conclusion is not warranted here Standard Dry Wall Products, Inc , 91 NLRB 544, enfd 188 F 2d 362 (C A. 3) 2 The Respondent's request for oral argument is hereby denied as, in our opinion, the record, exceptions, and brief adequately set forth the issues and positions of the parties TRIAL EXAMINER'S DECISION STATEMENT OF THE CASES A. BRUCE HUNT, Trial Examiner: This proceeding involves a separate complaint in each of three cases which were consolidated for hearing and decision.' In each 164 NLRB No. 73 complaint, the Respondent is alleged to have violated Section 8(a)(1) of the National Labor Relations Act, as amended, 29 U.S.C., Sec. 151 et seq., and in Case 11-CA-3039 there also is an alleged violation of Section 8(a)(3). On September 7 and 8 , 1966 , I conducted a hearing at Batesburg-Leesville, South Carolina, at which the General Counsel and the Respondent were represented. On October 24, 1966, counsel for those parties filed a motion to correct the transcript , and no objection thereto has been received . The motion is granted .2 On October 31, 1966, the Respondent filed a brief. Upon the entire record and my observation of the witnesses , I make the following: FINDINGS OF FACT 1. THE RESPONDENT J.B. Martin Company, a Delaware corporation, operates a plant at Leesville, South Carolina, where it is engaged in the manufacture and sale of ribbons, velvet and narrow textile fabrics. The Respondent annually ships goods valued in excess of $50,000 directly to points outside South Carolina. There is no dispute, and I find, that the Respondent is engaged in commerce within the meaning of the Act. II. THE UNION Textile Workers Union of America , AFL-CIO, CLC, which is the Charging Party in Cases 11-CA-3019 and 11-CA-3039, is a labor organization which admits to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. The Issues The principal issue is whether the Respondent's discharge of employee Troy E. Fox, on May 27, 1966, violated Section 8(a)(3). Another issue is whether the discharge of William A. Ricard , a foreman , on the same day violated Section 8(a)(1). The remaining issues involve alleged threats to employees and alleged espionage of a union meeting. B. Interference, Restraint, and Coercion During August 1965 a few employees including Fox contacted a representative of the Union and arranged to have someone speak to employees. During ensuing months a number of union meetings were held a few of which were in Fox's home, and on February 24, 1966, the Union filed a petition in Case 11-RC-2320. On April 15, 1966, an election was conducted in a production and maintenance unit, and the Union lost by a vote of 136 to 86. Two of the complaints herein allege that before and after the election, supervisors engaged in conduct violative of Section 8(a)(1). To the extent that proof was offered by the General Counsel in support of his allegations (all 'In Case 11-CA-3019 , charges were filed on April 25 and May 26, and the complaint was issued on June 8, 1966 In Case 11-CA-3039, the charge was filed on June 2 and the complaint was issued on July 20, 1966 In Case 11-CA-3080, the charge was filed on July 21 and the complaint was issued on July 26, 1966. The order consolidating the three cases was also issued on July 26, 1966. 2 There are additional errors in the transcript , but I think that counsel's motion covers the principal ones J.B. MARTIN CO. contested by the Respondent), my findings follow. About November 1, 1965, Foreman Smyrle Keisler spoke to a group of three employees, Ronald Corder, Homer Clamp, and Richard Clamp. Keisler said that "under" the Union an employee at work on one shift would not be permitted to trade shifts occasionally with an employee on another shift. Keisler said also that he did not believe that "the plant would run under the union."3 The first open union meeting was held on a Sunday afternoon during late February 1966 at the Community Center in Summit , a village within a few miles of the Respondent's plant. At approximately the hour set for the start of the meeting, one of the superintendents at the plant, Kenneth Kirby, was seen in his automobile in an area called the "sand pits " which is very near the Community Center. Kirby's automobile was moving very slowly near the exit from the sand pits. Blandon Shealy, an employee who was standing on the front porch of the Community Center, said , "Look, boys, there is Ken Kirby." Fox, the dischargee , turned around, looked, and walked 20 to 30 yards toward Kirby "to get a good look," when Kirby increased the speed of the automobile and drove away.4 On the next day, Fox initiated a conversation with Kirby in the plant , saying that it was against the law for supervisory employees to spy on union meetings. Kirby answered , "Hell ! Don't tell me, tell Archie Taylor [administration and personnel manager]." The conversation ended. Fox did not take the matter up with Taylor.5 Reverting to the union meeting in Summit , about 15 minutes after Kirby had been seen coming from the sand pits, Henry Raddlehoover, another superintendent, drove past the Community Center approximately 15 miles per hour and looked toward the persons who were in view. Raddlehoover testified for the Respondent that he and his wife had been visiting the latter's brother who lives in Summit , that it had been necessary to pass the Community Center when returning to their home, that he glanced at a number of automobiles parked at the Center and that he recognized one as that of an employee, that he did not see any persons, that he did not make a second trip by the Center on that day, and that he did not know until 3 The findings concerning this conversation are based upon Corder's testimony He impressed me as having testified truthfully, and in evaluating his testimony I have considered the fact that he was discharged by the Respondent on May 23, 1966, and that the Union asserted in its charge in Case 11-CA-3039 that the discharge had been in violation of Section 8(a)(3) There is no issue in this proceeding concerning the discharge Turning to the other persons who were present when Kessler spoke, Homer and Richard Clamp were not called as witnesses by any party Kessler, a witness for the Respondent , contradicted Corder According to Kessler, Corder had in his possession some pamphlets which the Union had given him , and he said to Kessler , in the presence of the Clamps, that he did not think that the Union was needed, with which remqrk Kessler expressed agreement , whereupon Corder asked, "What makes you think so?" Kessler testified that at one time he had worked in a mill which had been organized by another labor organization , United Textile Workers of America, and with that fact in mind he answered Corder's question by saying that he had "worked under the union before" and that , because of the collective -labor agreement then in effect , employees had not been able to trade shifts Keisler was not asked specifically whether he had said that the plant "would not run under the" Union Kessler impressed me unfavorably in giving his version of the conversation, and I do not credit it " These findings are based upon the testimony of Shealy and Fox It is clear from their testimony , which I regard as convincing, that they recognized Kirby On the other hand , Kirby denied that 461 later that a union meeting had been in progress . Although Raddlehoover's testimony that he saw no one at the Center may appear to be less than candid, the Center is set back some distance from the highway and it may be that Raddlehoover tried to keep his eyes on the road because of the number of parked automobiles . His testimony concerning the direction in which he was travelling coincides with the testimony of witnesses for the General Counsel, and there is no evidence that Raddlehoover drove by the Center more than once or was parked within sight of it. Unlike Kirby , who was in an automobile off the highway and in the sand pits, Raddlehoover's having driven by the Center at the time of a union meeting appears to have been a coincidence and for a legitimate purpose. Upon occasion , John Paul McCarty , an employee, received permission from Roger Boulais, another superintendent, to trade shifts with another employee and to leave the plant for brief periods during working hours in order to transact personal business . About a week before the election on April 15 , 1966, Boulais told McCarty that "if the union came in," the employees would not be permitted to trade shifts or to leave the plant for the purpose of attending to personal business.c The complaint in Case 11-CA-3039 alleges that on or about June 1, 1966, Linwood Hyler, a supervisory employee, threatened employees with discharge because of their union membership or activities. In an effort to prove this allegation , counsel for the General Counsel called as a witness , Clemuel Craps, an employee. Craps' testimony need not be recited . It suffices to say that he was a nervous and unwilling witness, that he gave no testimony in support of the allegation, and that, after reading an affidavit which he had executed , he testified that his recollection had not been refreshed. I shall recommend dismissal of the allegation concerning Hyler. I find that the Respondent violated Section 8(a)(1) by the following conduct: (1) Keisler's remarks to Ronald Corder and Homer and Richard Clamp ; (2) Kirby's surveillance of employees at the Community Center in Summit; and (3) Boulais' remarks to McCarty. he had been in Summit on the day of the union meeting As will appear in the discussion of the discharges of Fox and Ricard, I believe that Kirby was an unreliable witness 5 The findings concerning this conversation are based upon Fox's testimony Kirby's version of the conversation on his direct examination is that Fox approached him and said that Fox was trying to organize the Union, that there had been "some spying on a meeting" the day before in Summit , that "it was against the law," and that the matter would be reported to the Board unless it were stopped According to Kirby , he replied that he "couldn't care less" and that, if Fox wanted to report it, Fox should report to Taylor or to Charles Combier, the plant manager On cross- examination, Kirby's version of Fox's remarks differs only in that Kirby did not testify that Fox spoke of a union meeting on the preceding day in Summit. It is clear that Fox did not explicitly accuse Kirby of having engaged in espionage and that Kirby did not inquire why Fox spoke to him of the espionage. 6 These findings are based upon McCarty's testimony Boulais' version of the conversation is that McCarty requested and received permission to trade shifts , whereupon Boulais said that he "would be glad for one thing if the union was coming in," namely, that he no longer would have authority in the matter of employees' trading shifts because the matter would be covered by a collective -labor agreement As will appear in my discussion of the discharges below, I regard Boulais as an untruthful witness, and I cannot credit his testimony concerning his remarks to McCarty See fn 12 and accompanying text. 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Discharges of Fox and Ricard Fox began work for the Respondent during 1958, was laid off during 1960, and was reemployed during 1962. He was active in the Union' s organizational efforts, having, among other things, made his home available for meetings, solicited signatures of employees to union cards, and acted as an observer at the election. The record is clear that the Respondent knew that Fox supported the Union. On May 27, 1966, he was discharged. Ricard, a foreman over Fox, was discharged on the same day. He had worked for the Respondent approximately 7-1/2 years. According to the Respondent, Fox was discharged for having gone outside the plant during a meal "break" for the purpose of shooting dogs on the Respondent's premises , and Ricard was discharged for having given Fox permission to do so. On the other hand, the General Counsel contends that Fox's effort to shoot dogs was seized upon by the Respondent as a pretext to shield its real motive, the elimination of a leading union adherent, that Ricard's discharge was an attempt to "cover-up" the Respondent's real motive in discharging Fox, and that both discharges were intended to interfere with the employees' right to engage in union activities. On May 26, Fox did seek to shoot dogs. The discharges followed in less than 24 hours. Prefatory to the discussion of events on May 26 and 27, attention will be given to the location and features of the Respondent's property and to the presence and actions of dogs on the property and nearby. The Respondent's plant is situated on a tract of land, about 130 acres, that lies in a largely rural area in Lexington County, South Carolina. The western boundary line of the acreage adjoins the town limits of Leesville, population 2,200 about 35 miles west of the State's capital, Columbia. Another town, Batesburg, population 3,200, is nearby and the two towns sometimes are referred to as Batesburg-Leesville. The tract of land is not enclosed by a fence. One side borders on a State road, and there is a private road within the tract itself. The plant and parking area cover a relatively small portion of the 130 acres. On much of the remaining land, pine trees have been planted. At the time of the hearing, the trees had reached approximately 15 feet in height and there was an undergrowth of broomstraw. Some employees have hunted on the acreage. Haskell Maroney has hunted there for about 5 years, the first time in company with Murray Watkins, a foreman, and the last time during the hunting season of 1965-66. Curtis Bryant hunted there several years ago. Travis Ricard (not to be confused with the dischargee of the same surname) has hunted there as recently as 1965 with the permission of his supervisor, and at times he has hunted with Watkins, Maroney, one Fain, and his son. Fox, a dischargee, also has hunted on the property. Upon some occasions when two or more of the named individuals were hunting, the plant was in operation. In respect to the type of hunting in which employees engaged, the game has been doves, quail, and rabbits.' In addition to hunting, the Respondent's property has been used as a site for skeet shooting. About 1964 Plant Manager Combier, Production Manager Roger Arnaud, and Superintendent Kirby, using a hand-thrower to eject the targets, engaged in target practice there. As recited, Fox sought to shoot dogs on the Respondent's property. The evidence establishes that numerous unowned dogs have been shot in the Batesburg- Leesville area because they constituted a menace. The dogs run in packs of a dozen or less and are characterized by some witnesses as "wild dogs."" Such dogs have attacked livestock and human beings according to the uncontradicted testimony of the following witnesses for the General Counsel: Boight Shealy, a farmer whose land is close to the Respondent's property; James Waters, a farmer whose land adjoins that of the Respondent; and George D. Rivers, a maintenance man at a school.9 Such dogs have also attacked bird dogs while the latter were hunting with their owners. Shealy testified that upon occasions a year and more before the hearing he had shot dogs when they chased his cattle, Waters testified that during March 1966 he killed three dogs by shooting them when they started to attack him as he interrupted their attack upon his livestock, and Rivers testified that he used a stick upon one occasion, and the butt of a single-shot rifle upon another occasion, to fight off attacks upon him by dogs. Curtis Bryant, an employee, testified credibly that about 5 years ago he killed dogs on the Respondent's property and elsewhere when they attacked his bird dogs. Fox testified credibly that he had killed approximately 10 dogs while hunting and that wild dogs had attacked his bird dogs. A large number of dogs have been killed on the Respondent's property. Back of the Respondent's plant at 100 to 150 yards there is an old tenant house which is now called "the shack" and which the Respondent uses as a storage place. About 2 or 2-1/2 years prior to the hearing, Maroney was sent to the shack on an errand. Dogs were there and they threatened him. The next day he and Foreman Watkins went to the shack with the sole purpose of killing dogs. They shot six fatally. Both prior to that event and thereafter, Maroney has shot dogs on the Respondent's property when they attacked his bird dog while he was hunting. The total number of dogs killed by Maroney, or killed in his presence, on the Respondent's property during the 5 years of his employment is about 16.10 Following the killing of the six dogs at the shack by ' Much of the evidence concerning hunting on the Respondent's property is uncontradicted although a few supervisors testified that they were unaware of it Maroney's testimony that he hunted there with Foreman Watkins is uncontradicted, as is Travis Ricard's testimony that Watkins invited him to hunt there On the other hand, Travis Ricard's testimony that he received permission to hunt from his supervisor, William Shealy, if he "didn't take a crow," is contradicted by Shealy Ricard's testimony impressed me as truthful, and, as will appear, I must discredit Shealy in another instance See fn 11 and accompanying text 8 One witness who so characterized them is James Riley, a certified public accountant who testified for the Respondent According to Riley, there was "an unusual amount of dogs in the area" at a time when an attorney named Long lost "a lot of goats" which were attacked by the dogs Riley testified further that he shot at "a couple of them" that came to his yard. The record does not disclose the date when the goats were killed 0 Boight Shealy, upon being asked if he knew where the dogs came from, answered that he believed that some had been "thrown out as pups " by their owners and that the dogs "breed down in the swamps " 10 These findings are based upon Maroney's uncontradicted testimony Foreman Watkins was not a witness J.B. MARTIN CO. 463 Maroney and Watkins, Maroney reported the event to his supervisor, William Shealy." Maroney is not the only employee who encountered dogs at the shack. About 2 years prior to the hearing, Rufus Caughman, another subordinate of William Shealy, went to the shack to obtain an article. A dog growled at him behind the shack. Caughman returned to the plant and the dog went in another direction. About the same time or perhaps earlier, Bryant arranged to buy from the Respondent some boxes in which machinery had been shipped to the plant. The boxes had been stored near the shack, and Bryant went to them. A bitch with puppies was under some of the boxes. Bryant was afraid to move the boxes or to take any action which might cause the bitch to attack him. Soon she and the puppies went into the woods. Later, Bryant told his superior, Boulais, of the incident , and Boulais suggested that Bryant obtain his gun and shoot the dogs. Bryant did not follow the suggestion.12 We turn now to the events of May 26 and 27. Fox worked on the second shift, from 3 to 1.1 p.m. He operated a machine that dyes ribbon and that, once in operation, must be constantly attended. Between 5:30 and 6 o'clock on May 26, Fox took a sample of ribbon to Foreman Ricard for the latter's inspection. While Ricard was examining it, Fox looked through a window and saw a pack of dogs approaching the rear of the plant. Fox had a 12-gauge automatic shotgun in his pickup truck which was in the parking lot. He asked Ricard's permission to go out of the plant to shoot the dogs. Ricard replied that Fox had to wait until the 6 o'clock meal break, at which time Fox could go outside the plant and Ricard would attend his machine. At the beginning of the break, Fox drove his truck from the parking lot to a point approximately 100 yards from the plant. He got out of the truck, gun in hand, but did not see any dogs. Maintenance Supervisor Shealy drove up. Fox told Shealy of his intent to shoot dogs, and they conversed briefly. Fox then returned to the parking lot where he left his truck, going from there into the plant where he told Ricard what had happened. Fox had been away from his machine 10 minutes , a shorter time than the break period. Ricard had watched the machine during Fox's absence. The next morning, according to Supervisor Shealy, he told Superintendent Boulais of the incident, and Boulais said nothing other than to ask where Shealy had seen Fox. Somewhat later Shealy, so he testified, was called to a meeting with Personnel Manager Taylor and Plant Manager Combier at which Shealy told of having seen and talked with Fox on the preceding day. Thereafter, according to Combier's testimony, he discharged Fox and Ricard. Combier did not speak with Fox, however, nor did he speak with Ricard until after Ricard had been discharged, and I construe Combier's testimony to mean that he, as the highest official at the plant, made or approved the decision that Fox and Ricard should be discharged. When Ricard reported to work during the afternoon of May 27, he was summoned to Taylor's office where he spoke with Taylor and Kirby, telling them that he had given Fox permission to go outside the plant at 6 o'clock on the preceding day. Ricard was temporarily excused and Fox was summoned to the office. He talked with Taylor and Kirby, telling them that he had gone outside the plant in an effort to shoot wild dogs but that he had not found any. Fox said also that he had obtained Ricard's permission to leave the plant. Taylor said that Fox had breached a rule by going outside the plant. Fox denied knowledge of any such rule and asked why, if there was such a rule, it had not been posted.13 Taylor replied that a handbook for employees was being prepared.14 Taylor said also that it would have been alright if Fox had sought to kill dogs during his nonworking hours, and Kirby interjected " Maroney so testified On the other hand, Shealy testified that he had never heard of a "dog problem" or of the killing of dogs on the Respondent's property I see no reason to discredit Maroney He was sent to the shack often to obtain parts and it is likely that he told his supervisor, Shealy, that he and Watkins had killed dogs which had been a menace to him at the shack ii The findings concerning the incident are based upon Bryant's testimony Boulais' version differs. According to Boulais, he accompanied Bryant to the boxes and, as they made their approach , several large dogs "ran back in the woods" while "two little puppies stayed " Boulais testified further that he tried to catch one of the puppies , which was "so cute" that he wanted to take it "home and raise " it, but that he was unsuccessful because the puppy ran under a wood pile, and that , as he and Bryant returned to the plant , Bryant suggested that they "organize a gang and go back and shoot those dogs ," to which Boulais did not reply because he thought that Bryant was joking Boulais' version is largely reasonable I doubt that the mother of the puppies would have run into the woods, leaving them to possible harm at the hands of human beings, but Boulais testified that he did not see any animal which appeared to be the mother On the other hand, Boulais' testimony that he thought Bryant was joking does not ring true It is a reasonable inference that Boulais has known that dogs have constituted a problem on the Respondent's property and have been shot there, and I cannot credit his testimony that he had no knowledge of dogs having been on the property, or having bothered any human being there, or having been killed there Finally, my distinct impression in listening to Bryant and Boulais testify was that the former's version was the true one " Fox credibly testified to that effect Taylor testified that Fox was discharged for violating a posted rule which read. "No employee is allowed to leave the premises (unless excused for a good reason by the supervisor) until the horn has sounded the end of the shift " Thus, Taylor would construe the word "premises" to mean "plant," and Kirby testified that he also would so construe it Webster's New International Dictionary, first and second editions, defines "premises" as: "The property conveyed in a deed; hence, in general, a piece of land or real estate, sometimes, esp in fire-insurance papers, a building or buildings on land, as, to lease premises, the premises insured Sometimes loosely applied to personal property, as a vessel 14 Both Fox and Taylor so testified 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that it would have been alright if Fox had done so on a Saturday as Watkins and Maroney had done.15 Taylor told Fox that he was discharged . Fox left the office and Ricard was recalled to it . Ricard was discharged with Taylor's remark that his conduct had been "against the rules."16 One rule, according to the Respondent , is that a foreman is so low in supervisory status that he is not authorized to permit an employee to go outside the plant. Ricard obtained permission from Taylor to speak with Plant Manager Combier , but Combier did not countermand the discharge . According to Combier, Ricard was discharged because Ricard had "participated in [Fox's conduct] by letting him out" of the plant and Combier told Ricard that Ricard "had made a very, very bad mistake." On the other hand, Combier testified that Ricard would not have been discharged if he had given Fox permission to go to Fox's pickup truck to obtain "something." In determining the Respondent 's motive in discharging Fox and Ricard , the initial questions are (1 ) whether a foreman, such as Ricard, had authority to permit employees to go outside the plant, and (2) whether Fox breached a rule simply by going outside. The Respondent's position is that , although Ricard was a supervisor within the meaning of Section 2 (11) of the Act, he was a mere foreman in contrast to superiors who are called "supervisors." In its brief, the Respondent asserts that "Ricard's authority was little more than that of an ordinary leadman," that his authority "did not include authority to let employees go from the department," and that employees wishing to leave the plant must obtain permission from "the Department Supervisor-never [from] foremen subordinate to the Supervisor." The individuals whom the Respondent calls supervisors are, in some instances, those who, as witnesses , called themselves superintendents . There is testimony by Taylor that a foreman is a subordinate of a supervisor and that a foreman is responsible for the work of employees in his department, but does not have authority to hire, discharge, or lay off employees, to reprimand employees, or to recommend pay increases . A supervisor , according to Taylor, has departmental authority in personnel matters. There is testimony by Superintendent Kirby that an employee may not go outside the plant without the approval of a supervisor and that Ricard was a foreman who could not give such approval without first clearing the matter with a supervisor. Kirby testified also, however, that Ricard once properly permitted an employee to go home, without Ricard 's having first contacted Kirby, when the employee's machine had ceased to function. The Respondent's contentions that it distinguished between "Fox so testified . Taylor testified to the contrary , but the record establishes that on July 11 , 1966, in an unemployment compensation hearing for Fox, Taylor was asked whether, upon discharging Fox, he had said that it would have been alright if Fox "had gone outside or had not been on the property of the [Respondent] to shoot these dogs or wild dogs or whatever they are or were , during his own time," and that Taylor answered that he did not remember. After reading his testimony in that hearing, Taylor testified that he did not remember having so spoken to Fox but that he would not deny having done so Kirby also contradicted Fox Kirby testified that he did not say to Fox that it would have been alright if Fox "had been shooting dogs on his own time ," that he did not hear Taylor make such remark, and that he did not think that anyone had spoken of shooting dogs "on one's own time " Indeed, according to Kirby , when Fox "said that he wasn't more than ten feet away from the truck , and that he was going looking for some dogs ," Taylor told Fox "that we could not tolerate this type of thing, and would not tolerate it , and he would the terms "supervisor" and "foreman," and that its use of the former term in the notice quoted in footnote 13 did not include the latter term, do not find support in the Respondent's communications to employees and their superiors . For instance, Taylor and Kirby acknowledged that no notice had been posted to inform the employees of any differences between a foreman and a supervisor, and Taylor also testified that the employees had not been so informed orally insofar as he knew. Moreover, there is nothing in a manual for supervisory employees that points out differences between foremen and supervisors, and Ricard testified without contradiction that prior to his discharge he gave an affidavit to an agent of the General Counsel, that the affidavit was given in Taylor 's office in the presence of Taylor and "Mr. Bill Smith , 1117 that he referred to himself in the affidavit as "a dye house supervisor on the second shift ," and that neither Taylor nor Smith corrected the reference. Turning to the subject of employees ' going outside the plant during their break periods, there is a building about 70 yards from the point at which Fox worked . A machine that dispensed soft drinks was located at that building, and Ricard testified credibly that he gave employees permission to go to that machine during their break periods "under the conditions that they would take the bottles back." Kirby testified that employees in the ribbon dye house who wish to leave their machines during a break, as, for instance , to obtain a soft drink, must obtain the permission of the foreman . At times other than break periods, Ricard had authority to permit his subordinates to go to the parking lots to raise or lower the windows of their automobiles depending upon weather conditions, and Maroney and Travis Ricard , who were not subordinates of Foreman Ricard , went to the parking lot upon occasion without criticism by any superior . 1' Upon the above findings , I conclude that neither Fox nor Foreman Ricard breached a rule of the Respondent by Fox 's having gone outside the plant during a break period on May 26, and I reiterate Plant Manager Combier's testimony that Ricard would not have been discharged if he had permitted Fox to go to Fox's truck with an object other than to kill dogs. If there be doubt as to the soundness of my conclusion that Fox and Ricard did not breach a rule, surely there can be no doubt that the rule had not been made known to them by the Respondent . I am convinced that Fox and Ricard believed that the latter had authority to permit the former to go outside the plant during a break period . This brings us to the question whether Fox was discharged for having sought to kill dogs on the Respondent's property. The Respondent's pleadings and brief express eloquent therefore be discharged " I must credit Fox's testimony for several reasons First, he impressed me as having told the truth Second, Taylor testified that Fox was discharged for having breached a rule against leaving the plant Third , the shooting of dogs on the Respondent 's property by employees and Foreman Watkins had been so numerous that the matter must have been known to Taylor and Kirby Fourth , if, as Kirby testified , Taylor had said to Fox that the Respondent "could not tolerate" an attempt to shoot dogs on its property , surely Fox would have disputed the statement. 16 Ricard so testified. Taylor testified that he discharged Ricard "under the circumstances." 1' Bill Smith may be one of the Respondent's attorneys, William H . Smith, Jr is There is testimony concerning occasions when individuals superior to foremen permitted employees to go outside the plant or to leave the Respondent's property . I deem it unnecessary to discuss this testimony. J.B. MARTIN CO. outrage at Fox's willingness to shoot dogs when they were not attacking him. The brief expresses also an opinion, based upon my questions of witnesses, that I have "had considerable hunting experience." It is true that in my youth and as a young man, when coveys of quail were not so scarce as today and could be found in certain counties in Southwestern Virginia, I hunted quail and I have fond recollections of several excellent setters. There is no doubt that the thought of shooting a dog is abhorrent to many persons.19 The main issue here, however, is the Respondent's motive in discharging Fox, namely, whether it was because he sought to shoot dogs on the Respondent's property or whether his effort to shoot them there was seized as a pretext to shield the real motive of eliminating a leading union adherent. I am convinced that the latter is the fact. My reasons follow. First, there are wild dogs in the Batesburg-Leesville area. They have no owners and are free to breed and to roam. Leesville does not have a dog pound, nor, insofar as appears, does Batesburg or Lexington County have one. The dogs are a menace to livestock, as reflected by evidence showing attacks upon cattle, horses, and goats, and some of the dogs regard man as an enemy, as reflected by the un- provoked attacks upon Rivers. Second, the existence and various acts of the dogs are generally known. One of the attacks upon Rivers was publicized in a local newspaper, The Twin City News. Lester Warren, a deputy sheriff of Lexington County and a witness for the Respondent, testified that he went to the property of Attorney Long to investigate the killing of goats mentioned in footnote 8. Foreman Ricard testified that he had heard in the plant of the presence of dogs on the Respondent's property and of Foreman Watkins' having killed some dogs there. In view of the large number of dogs that were killed on the Respondent's property, coupled with the fact that at times the dogs at the shack were regarded by some employees as threats, I conclude that the dogs were a matter of common knowledge to the employees. In view of the attacks upon livestock on farms adjoining and near the Respondent's property, it is reasonable to infer, and I do, that farmers in addition to those who testified were aware of the menace created by the dogs.20 Third, shooting appears to be the accepted method of disposing of unwanted dogs in the Batesburg-Leesville area. As recited, there is no pound insofar as appears, nor is there evidence that there is a place to dispose of unwanted dogs or that there is in use a method of killing less painful than shooting. Rudolph 11 Years ago someone originated the often-heard remark that "Man's best friend is his dog." I have not seen the remark in any edition of Bartlett's Familiar Quotations. Perhaps the origin is in an address to a jury in Missouri by an attorney who later became a United States Senator from that State, George G Vest The address was given in the year 1870 One sentence reads: "The one absolutely unselfish friend that a man can have in this selfish world, the one that never deceives him, the one that never proves ungrateful and treacherous, is his dog " The entire address is a brief one and may be found in at least two publications, French, Edwin, Senator Vest, Champion of The Dog Boston : The Meadow Press, 1930, and Sellers, Alvin, Classics Of The Bar Baxley, Georgia Classic Publishing Co 1916, volume 2 21 One incident, which I have not discussed because of the scant evidence concerning it, is found in the testimony of Boight Shealy who, as related, has a farm which is close to the Respondent's property and who has shot at dogs upon his farm upon more than one occasion. Shealy testified that about 6 465 Miller, chief of police in Leesville, was a witness for the Respondent. He testified that if an unowned and unwanted dog stays for 90 days at the home of a local citizen who does not want it, "[w] a take them out and kill them, that is the only way we could dispose of them. We have got no place to put them up at. 1121 Miller testified further that he lends a 22 calibre rifle to individuals who "take the dog out and kill him."22 Fourth, as we have seen, when Fox was discharged Taylor said to him that it would have been alright if he had sought to kill dogs at times other than when his shift was at work, and Kirby said that it would have been alright if Fox had done so on a Saturday as Maroney and Foreman Watkins had done. Fifth, Taylor told Fox that the latter was discharged for breaching a rule by going outside the plant during a break period, but no such rule had been made known to Fox and to Foreman Ricard who gave him permission to go out. Sixth, Fox was a leader in the Union's organizational activities, and the Respondent's hostility toward such activities is shown by its violations of Section 8(a)(1), particularly Kirby's espionage of a union meeting. Turning to Ricard's discharge, the factual situation recited herein convinces me that the Respondent's motive in discharging him was to give a color of validity to Fox's discharge. I conclude that the Respondent violated Section 8(a)(1) in discharging Ricard and Section 8(a)(3) and (1) in discharging Fox. IV. THE REMEDY Having found that the Respondent has engaged in unfair labor practices affecting commerce, I shall recommend that it cease and desist therefrom and that it take affirmative action to effectuate the policies of the Act. I shall recommend that the Respondent offer Fox and Ricard immediate and full reinstatement to their former or substantially equivalent positions (Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827), without prejudice to their seniority or other rights or privileges, and that the Respondent make each of them whole for any loss of pay he may have suffered as a result of the discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned from the date of the discrimination to the date of a proper offer of reinstatement, less his net earnings (Crossett Lumber Co., 8 NLRB 440, 497-498) during said period, the payment to be computed on a months prior to the hearing he was asked by his brother, who owns an adjoining farm, to go to the brother's farm and assist in killing dogs Shealy did not elaborate 21 The 90-day period is not fixed by law. It may be a practice which Miller follows, but it is difficult to believe that a citizen must tolerate the presence of an unwanted, stray dog for 90 days before he can obtain the assistance of Leesville officials. 22 The Respondent, in its brief, cites State statutes and opinions by the Supreme Court of South Carolina To the extent that these authorities need be discussed, it suffices to say that (1) portions relate to an individual's wilful injury of an animal belonging to another, whereas here the dogs were not owned, (2) portions relate to mistreatment of animals by owners or persons having custody, (3) any statute quoted to me which Fox would have breached if he had succeeded in shooting a dog is as much applicable to Chief of Police Miller; and (4) as laudable as the statutes are, their existence does not establish the Respondent's motive in discharging Fox and Ricard. 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quarterly basis in the manner established in N.L.R.B. v. Seven-Up Bottling Company, of Miami, 344 U.S. 344, with interest at 6 percent per annum, Philip Carey Manufacturing Company v. N.L.R.B., 331 F.2d 720 (C.A. 6).23 I shall recommend also that the Respondent preserve and make available to the Board or its agents, upon request, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay and the right to reinstatement under the terms of these recommendations. In view of the nature of the Respondent's unlawful conduct and its underlying purpose and tendency, I find that the unfair labor practices found are persuasively related to the other unfair labor practices proscribed and that danger of their commission in the future is to be anticipated from the course of the Respondent's conduct in the past. N.L.R.B. v. Express Publishing Company, 312 U.S. 426, 437. This is particularly true because the discharge of employees for union membership or activity, striking as it does at their means of livelihood, "goes to the very heart of the Act," N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4). In order, therefore, to make effective the interdependent guarantees of Section 7, I shall recommend further that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in said section. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OFLAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. By discouraging membership in a labor organization through discrimination in employment , and by interfering with , restraining, and coercing employees in the exercise of their rights under the Act, the Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a)(3) and (1) and Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby recommend that the Respondent, J.B. Martin Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Textile Workers Union of America, AFL-CIO, CLC, or in any other labor organization of its employees, by discharging any of its employees because of their union or concerted activities, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment. (b) Engaging in or attempting to engage in surveillance of union activities. (c) Threatening employees concerning their union activities. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Troy Fox and William Ricard immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights or privileges, and make each of them whole, in the manner set forth in "The Remedy" section of this Decision. (b) Preserve and make available to the Board or its agents all payroll and other records, as set forth in said remedy section. (c) Post in conspicuous places at its place of business in Lexington County, South Carolina, including all places where notices to employees are customarily posted, copies of the attached notice marked "Appendix."24 Copies of said notice, to be prepared and furnished by the Regional Director for Region 11, shall, after being signed by the Respondent's representative, be posted by it immediately upon receipt thereof, and maintained by it for at least 60 consecutive days thereafter.25 Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any material. (d) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision what steps the Respondent has taken to comply herewith.26 IT IS FURTHER RECOMMENDED that the complaints be dismissed to the extent that they allege unfair labor practices not found herein. 23 If Fox or Ricard should be serving in the Armed Forces of the United States at the time of the Respondent's compliance with the Recommended Order below, the Respondent shall notify him promptly of his right to full reinstatement upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended Backpay to either of the dischargees shall be tolled for the period of his military service 24 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 25 When the Regional Director prepares the notices, if Fox or Ricard should be serving in the Armed Forces, the Regional Director shall insert in the notice a provision whereby the Respondent notifies all employees that it will comply with its obligation set forth in fn 23 26 In 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 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 Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discharge any of our employees because they join or engage in activities on behalf of Textile Workers Union of America, AFL-CIO, CLC or any other labor organization. WE WILL NOT spy on or try to spy on any union activities. J.B. MARTIN CO. WE WILL NOT threaten employees with reprisals if they join or support a union. WE WILL NOT violate any of the rights which you have under the National Labor Relations Act to join a union of your own choice and to engage in union activities, or not to join a union and not to engage in such activities. WE WILL offer Troy Fox and William Ricard immediate and full reinstatement to their former jobs, or equivalent ones, and pay them backpay to cover the earnings they lost because we discharged them. All our employees are free to become or remain members or to refrain from becoming or remaining members of Textile Workers Union of America, AFL-CIO, CLC or any other labor organization. J. B. MARTIN COMPANY (Employer) Dated By (Representative) (Title) 467 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 Wachovia Building, 301 North Main Street, Winston-Salem, North Carolina 27101, Telephone 723-2911. 298-668 0-69-31