Schneider Mills, Inc.

SCHNEIDER MILLS 879 Schneider Mills, Inc., and Jimmy and Josh, Inc. and Textile Workers Union of America, AFL-CIO. Case 11-CA-3010. May 23,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On January 20, 1967, Trial Examiner Herbert Silberman issued his Decision in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that the Respondents had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that such allegations be dismissed. Thereafter, the Respondents filed exceptions to the Trial Examiner's 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 Respondents' exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions. The Trial Examiner found, and we agree, that the Respondents discriminatorily discharged employees Miller, Williams, and Caldwell on April 11, 1966, in violation of Section 8(a)(3) and (1) of the Act. Our agreement with this conclusion is based upon the entire record, particularly the considerations set forth below. The Respondents contend that Miller, Williams, and Caldwell were discharged because they twice refused, when summoned to the office of Plant Manager Schneider for individual interviews, to go to the office unless accompanied by fellow employees. Although the three dischargees had been employed by the Respondents for from 1 to 5 years, each of them testified that he had never previously been summoned individually to Schneider's office, and was afraid to report without a witness. The Respondents have a history of unfair labor practices, as found by the Board,' including threats, interrogation, creating the impression of surveillance, refusal to bargain with the certified Union, and the discharge of six employees because they had engaged in union activities. Furthermore, 164 NLRB No. 114 the dischargees were known by the Respondents to be active in the Union, and Williams and Miller had testified adversely to the Respondents at a Board hearing only a few days before the discharges. The Respondents maintain that they sought the interviews on Friday, April 8, to question employees about a rumor that there was to be a second work stoppage, and the interviews on the following Monday to warn those who had refused to report to the office on Friday that such refusal was considered to be a serious act of insubordination. The only employee who testified as to what transpired at the first interviews on Friday was Barnes, whose undisputed testimony shows that there was no reference to the rumor of a second work stoppage during his interview, and that the entire 25-minute discussion related to what Barnes and the other employees hoped to gain by their union activities. Miller's supervisor, when he told Miller on Friday to go to the office to be interviewed, informed him that Barnes had already been interviewed. Moreover, as Schneider admitted and the Trial Examiner found, the subjects discussed at some of these interviews with employees other than Barnes related to the organization of the Union. Therefore, and particularly as Barnes as well as the three dischargees were weavers on the first shift, they must have been aware of the nature of the interviews which took place on Friday. In all the circumstances of this case, we find that the request of the three employees that they be accompanied by a fellow employee during the interviews was grounded upon a reasonable apprehension, but was characterized as "insubordination" and seized upon by the Respondents as a pretext for getting rid of three militant union adherents. 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 the Respondents, Schneider Mills, Inc., and Jimmy and Josh, Inc., Taylorsville, North Carolina, their officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. I Schneider Mills, Inc, and Jimmy and Josh, Inc, 161 NLRB 1135, Schneider Mills, Inc, and Jimmy and Josh, Inc , 159 NLRB 982 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HERBERT SILBERMAN, Trial Examiner: Upon a charge of unfair labor practices filed by the above-named Union on April 15, 1966, a complaint, dated July 28, 1966, was duly 880 DECISIONS OF NATIONAL LABCR RELATIONS BOARD issued alleging that Respondents Schneider Mills, Inc., and Jimmy and Josh, Inc., herein sometimes jointly referred to as the Company, have engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. The complaint, as amended at the hearing, in substance alleges that Respondents on March 30, 1966, discriminatorily discharged Johnny Pennell and on April 11, 1966, discriminatorily discharged Ned Miller, Eula Caldwell, and Richard Williams and, by reason of said discharges and other conduct set forth in the complaint, have interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act. Respondents filed an answer to the complaint which generally denies that they have engaged in the alleged unfair labor practices. A hearing was held in Statesville, North Carolina, on October 5 and 6, 1966, at which all parties were represented. Subsequent to the hearing, General Counsel and Respondents 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., which are South Carolina corporations , are a single integrated enterprise engaged in the business of manufacturing textiles and textile products . They maintain their principal offices and place of business at Taylorsville, North Carolina. During the 12 months immediately preceding the issuance of the complaint , Respondents manufactured, sold, and shipped finished products valued in excess of $50,000 to points and places outside the State of North Carolina from their Taylorsville , North Carolina, plant. Respondents admit, and I find, that they are engaged in commerce withi. 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. Background This case has its genesis in the Union's drive to organize Respondents' production and maintenance employees which began in early September 1965, and Respondents' determined opposition thereto. On November 5, 1965, the Union won an election conducted by the Board, but Respondents nevertheless have persisted in their refusal to recognize and to bargain collectively with the Union. Such refusal and other conduct by Respondents gave rise to charges of unfair labor practices, the issuance of a complaint thereon, and a hearing in said proceedings which was held on April 5 and 6 and May 10 and 11, 1966. Two decisions have been issued by the Board therein. In one case, reported at 159 NLRB 982, the Board found that the Respondents, since about March 4, 1966, by refusing to bargain collectively with the Union as the exclusive representative of their employees in an appropriate unit, have violated Secttion 8(a)(5) and (1) of the Act. In the second case, reported at 161 NLRB 1135, the Board found that between September 15 and November 5, 1965, Respondents discriminatorily discharged six employees in violation of Section 8(a)(3) and (1) of the Act and engaged in further violations of Section 8(a)(1) by coercively interrogating employees about the union activity in the plant and about the identity of the employees supporting such activity, by creating the impression among their employees that the Respondents were engaged in the surveillance of their employees' union activities, and by threatening employees with reprisals in order to discourage union membership and activities. So far as the record in this case shows between the times when the events litigated in the two cases cited above took place and the spring of 1966, when the transactions which are the subject of this proceeding occurred, there has been no lessening of the Company's opposition to the Union or of its hostility toward employees who support the Union. B. The Alleged Interference, Restraint, and Coercion There is only one alleged violation of Section 8(a)(1) in this case independent of the alleged discriminatory discharges. According to employee Ned Miller, in mid- March 1966 his supervisor, Clarence Annas, summoned him to the office to discuss a rating form which Annas was required to fill out concerning Miller. Among other things, the form called for grading the employee as good, fair, or poor with respect to various characteristics including ability to do the job, attitude toward the job, and loyalty. Miller testified that Annas "rated me, I think, fair on production, and attitude.... I was rated good, I think, on one or two things. And, when he got to the loyalty he said-'this is a touchy subject, . you know Ned you worked for the wrong party-so, I can't rate you good on that.... I'll show you how I'm rating you,' so he marked it fair." General Counsel argues that "[t]he expression `wrong party' within the context of this case can only mean the Union" and that Miller was penalized with respect to his rating for loyalty because of his union activities. However, Annas denied that he made the incriminatory remark. According to Annas, "In regard to loyalty, I said, `I grade this on a man's production, attendance, and a man giving a fellow a fair day's work for a fair day's pay."' On this bare bones record,' I cannot find that the version of either witness is more credible than the version of the other and, accordingly, I find that General Counsel has not proved by a preponderance of the evidence that the aforesaid incident constitutes a violation of Section 8(a)(1) of the Act. C. The Discharge of Pennell The next relevant event was the discharge of Johnny Pennell on March 30, 1966 . Pennell, who first began to work for the Company in 1956, had been discharged on September 15, 1965. In the case reported at 161 NLRB 1135, the Board found that such discharge was unlawful in that Pennell had been terminated because the Company believed he was active in the Union. Late in November 1965, prior to the decision in said case, the Company reinstated Pennell. Although no evidence was adduced ' None of the parties introduced the so-called rating card in applied, or what effects, if any, the ratings have upon the evidence, or offered any evidence concerning the reasons for the employees' conditions of employment. ratings, when the ratings practice was established, how it is SCHNEIDER MILLS 881 reflecting any discriminatory disposition on the part of the Company toward Pennell between the dates of his reinstatement and his subsequent discharge and although no evidence was adduced showing union activity by Pennell during such period, nevertheless, General Counsel argues that the second discharge was in furtherance of the Company's discriminatory purposes, revealed in the prior case. According to the General Counsel, the Company reinstated Pennell merely to mitigate the adverse consequences of its earlier discrimination against Pennell, but without abandoning its intention of ultimately separating him from its employ. Johnny Pennell worked as a loomfixer on the third shift (11 p.m. to 7 a.m.) and was discharged upon the recommendation of his immediate supervisor, Walter Hines. This action was approved, in turn, by Paul Ingram, superintendent of weaving, and Plant Manager Gordon MacKenzie. The Company contends that Pennell was an unsatisfactory employee and that he was discharged for cause. The event which triggered the discharge was Pennell's failure to fulfill a direction given to him on March 29 at the beginning of his shift to place two looms in operation by the end of the shift. Hines testified that this incident alone was not the reason for his recommendation that Pennell should be discharged but that his decision was based upon Pennell's "back record." According to Hines, "[w]hen Johnny first came back to work [at the end of November 1965] about the first week or two, he done me a good job;2 and then he started slacking off; and I had had to talk to him, well, a couple of times; and then I came up and asked him to get these two looms started; and he wouldn't do that." Consequently, Hines decided to terminate Pennell. Respondents advert to several incidents, summarized below, to support their position that Pennell's conduct and performance at work following his reinstatement was unsatisfactory.3 On December 11, 1965, about 11:30 p.m., Supervisor Hines brought Pennell to Ingram's office, according to the latter, "to talk to Mr. Pennell about being off his job, about his job in general and his attitude." Hines admonished Pennell for having left his work station the previous night and for having wandered into another weaveroom.4 Hines also reproved Pennell for failing to turn the pick clocks at the start of his shifts.5 Pennell's response to the latter reprimand was to inquire whether "it was in the rule book." Hines reminded Pennell that it always had been a rule at the plant that the loomfixers would help turn the pick clocks. At the end of the interview Hines told Pennell to return to work and remarked that no more was expected from Pennell than from any other fixer. Pennell answered, "I will go back and do part of it [referring to his work, particularly turning the pick clocks] ... I will not go back out there and kill myself." Before Pennell left he asked Hines, "Why don't you get your firing book out?" Also, during the interview, when Pennell wasn't talking "he sat there with his head down whistling." The next incident took place on February 24, 1966. Supervisor Hines handed Pennell a form listing safety instructions and asked him to read and sign the card. At the bottom of the card there is a line for the employee's signature. Above it is printed: "I have (read)-(had explained to me) and will observe the SAFETY INSTRUCTIONS set forth above." However, after Pennell read the card he returned it to Hines saying that he was not going to sign it. A third incident occurred on March 3, 1966. Pennell had been absent from work on three successive nights. Con- trary to the rule requiring employees to inform the Company when they will be absent from work (so that the Company can make arrangements for someone else to cover the absent employee's job), no advice was given to the Company by Pennell or anyone on his behalf that he would not report for his scheduled shifts on the first two of said three nights.6 On March 3, Hines gave Pennell a copy of the employee warning notice which Hines had prepared regarding the matter. Pennell tore up the notice and threw the pieces of paper on a desk remarking to Hines, "I don't want the damn thing." 7 The following night, March 4, Pennell was given another employee warning notice by Third-Shift Overseer Miller Walker, this time for having permitted an excessive number of looms to be stopped. Again Pennell tore up the copy of the notice which was handed to him and tossed the pieces on a desk. Considerable evidence was adduced concerning the events during the night of March 29 when Pennell did not start two looms as he was instructed. In regard thereto General Counsel, in his brief, relying entirely on Pennell's testimony, aruges that Pennell had not been told that the looms had to be placed in operation by the end of the shift and that among the other reasons the looms were not operative was that the "ends" were out and it was the responsibility of the smash hand, not the loomfixer, to remedy this condition. However, I credit Hines, whom I find was a more reliable witness than Pennell, that Hines specifically informed Pennell that the former wanted the looms started by the end of the shift.8 As to the matter of the "ends," there is no dispute that it was not the 2 Miller Walker, the third-shift overseer, also testified that "when Johnny first came back with us, he did a good job, and I told Johnny that he did . . a real good job " 3 Pennell, whose manner on the witness stand was surly and uncooperative, in general, impressed me as being an unreliable witness With respect to conflicts of testimony involving Pennell, for the most part, I have not credited Pennell During the interview when Hines asked Pennell what he was doing in the other weaveroom, Pennell replied that Hines had instructed him to get the unifill fixer. However, the established procedure for calling the unifill fixer was to turn on a signal light and to note on a pad, which was kept nearby, which loom required repairs 5 The weavers are paid on a piece-rate basis The pick clocks measure the weavers' production and it is necessary to reset the pick clocks at the start of each shift in order for the weavers to receive full credit for the production on their respective shifts 6 According to Pennell, his wife unsuccessfully tried to telephone Hines both at home and at the plant to inform Hines that Pennell would be absent from work on the two nights in question ' With respect to this notice and the notice given to Pennell the next night, Pennell explained that he tore them up because he did not think he deserved them and when the copies of the notices were given to him he was told he could do with the notices what he wanted This hardly serves as an excuse for his effrontery in tearing up the notices in the presence of his supervisors, thereby scornfully suggesting to them that he was going to ignore the warnings " I am not persuaded by General Counsel's argument that Hines' testimony to the effect that he specifically told Pennell to start the looms before the shift ended was impeached because Hines "did nothing to check and see whether the looms were going to be ready in time" and because Hines did not testify that Pennell was "goofing off" that night 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD loomfixer's responsibility to correct a breakout of "ends." However, the evidence adduced on behalf of the Company, which I credit, is not that the two looms were inoperative because the "ends" had not been tied but that Pennell did not complete the work on the two looms which was within the area of his responsibility. The General Counsel's theory is that the events of March 29 "smacks of a predetermined, pretextual effort to find a `reason' for discharging Pennell," and Respondents' unalterable opposition to the organization of its employees viewed in the light of its prior unremedied unfair labor practices suggests that Respondents' true reason for discharging Pennell was to eliminate a union adherent from its employ. However, I find that General Counsel has not proved by a preponderance of the evidence that the events of March 29 were contrived to disguise the Company's underlying unlawful reason for discharging Pennell. Contrary to General Counsel, I find that for a substantial period prior to Pennell's discharge he was impudent and insolent toward his supervisors and indifferent and uncooperative in the performance of his work and that, as argued by the Company, he was discharged for cause. D. The Discharges of Caldwell, Miller, and Williams A regular weekly union meeting was held on Thursday, March 31, the night after Pennell was discharged. The employees attending the meeting, who were disturbed by the Company's continued refusal to recognize and to bargain with the Union despite the Union's certification and by the discharge of Pennell, voted to stay away from work the following Saturday and every Saturday thereafter until the Company should recognize the Union. Accordingly, on Saturday, April 2, and also Saturday, April 9, about 50 employees, most of whom worked in the weaveroom, were absent. The Company was aware that the unusually large number of absences on both Saturdays was the result of concerted action, or strike activity, on the part of its employees in protest of its refusal to deal with the Union.10 After the first work stoppage on April 2, the Company heard rumors that there would be a repetition on April 9. Beginning with the third shift on Thursday, April 7, and continuing through the first shift on the next day, employees who had been absent from work the previous Saturday were individually summoned to the office to meet with Albert Schneider, vice president, plant manager, and operating head of the Company. According to Schneider, the purpose of these interviews was to ascertain "what we were going to have available to us in the way of labor that Saturday (April 90 if they did stay out (again)."11 Schneider interviewed 14 or 15 employees on the third and first shifts. However, eight or nine other employees who were called, including Ned Miller, Eula Caldwell, and Richard Williams, refused to go to the office. Schneider learned that the objection on the part of Miller, Caldwell, and Williams, as well as some of the other employees who had refused to report to the office, was to meeting with him alone rather than outright defiance of his summons. Schneider testified that he considered such refusals "a disturbing thing ... a very serious breach of plant discipline ... because it certainly meant that we were losing all control over how we were going to operate our plant." On Monday, April 11, Schneider again sent for Miller, Caldwell, and Williams. According to Schneider, it was his intention to remind these people that their refusals during the previous week to respond to his summons were serious offenses and to tell them that in the future they were expected to report to the office when asked or directed. However, the employees again refused to comply with the request and Schneider was informed that in each case the employee was willing to go to the office in the company of other employees but refused to meet with Schneider alone. These three employees were discharged upon the instructions of Schneider for their refusals on April 11 to respond to the summons to his office. In declining to report to Schneider's office on the 2 days in question (April 8 and 11), Caldwell, Miller, and Williams were not following any prearranged understanding among themselves, but each acted independently of the other two. Eula Caldwell testified that on April 8 when her supervisor told her to report to the office she replied, "I'll be glad to talk to Mr. Schneider if I can take someone with me." While she was not informed why she was being asked to report to the office, Caldwell testified, "I felt like he [Schneider] wished to talk to me about the Union. "i2 When called to the office for the second time on April 11, Caldwell again refused to go alone. Respondents' counsel on cross-examination inquired with some persistence as to Caldwell's reasons for having refused to go to the office. In relevant part her answers to his questions were as follows: Well, with all the trouble that had been going on in the mill I didn't know what to expect-in 5 years I had never been requested to talk to Mr. Schneider. I felt like I needed a witness to his conversation with me and my conversation to him. * * * * * Since there had been so many fired since the Union was voted in, I didn't know what was taking place, I felt like that I needed someone with me. * * * * * Well, there had been so many things that had been told and were not true, and that were untrue, there had been so many people fired I did not know what to expect if I went in there; I didn't know if-that he couldn't say what he wanted to-he had Paul Ingram with him and I would have been by myself and my word would have been nothing. * * * ' Pennell testified that there were occasions when he tied "ends" in order to start a loom , but that it was not his job to tie "ends" and that he never tied as many as 50 to 75 "ends" which were the number of "ends" that had to be tied on the looms in question "' Albert Schneider testified that on Monday, April 4, the supervisors were instructed to determine the reasons for the unusually large number of absences on the preceding Saturday Various employees testified that, when asked, they informed their supervisors that they had stayed away from work in protest of Pennell's discharge and the Company's refusal to bargain with the Union In addition, the Union, on April 4, mailed a letter to the * Company stating that employees had remained away from work on April 2 and 3 as a concerted action in an attempt to seek some resolution of the unfair labor practices on the part of the Company and of other problems. " According to Schneider, on April 8, Plant Manager MacKenzie was supposed to have interviewed the employees working on the second shift who had participated in the April 2 strike No evidence was offered as to whether MacKenzie conducted any such interviews 12 Caldwell also testified that when she was summoned to Schneider's office on April 11, she again was not told what he wished to discuss with her SCHNEIDER MILLS Q. (By Mr. Erwin) Now, Mrs. Caldwell, does it boil down to the fact that you wanted somebody there to verify what you had said or what Mr. Schneider had said? A. Yes, I felt like I needed someone with me. Although Caldwell did not testify that she had any understanding with any other employee about refusing to meet with Schneider alone, Peggy Fortner testified that on April 8, after she had declined a request to report to the office, she had a discussion with Caldwell about the subject and "we had decided that we would rather not go alone." On the two occasions that Ned Miller refused to report to the office he informed his supervisor that "we had elected a 3-man committee-Jack Barnes, Wilburn Warren, and myself-and that we would go in and talk to him [Schneider]." During one of these conversations with his supervisor, Miller was informed that Jack Barnes had been in the office and had talked to Schneider. Miller responded that Barnes "wasn't supposed to do that because we had elected a three-man committee to talk to Mr. Schneider."" When Richard Williams was summoned to the office on April 8 and 11, he refused to go unless the two employees with whom he worked accompanied him. As to his reasons, Williams testified it was "[b]ecause we had all gotten together and agreed on it." Albert Schneider testified that between April 7 and 8 he spoke with 14 or 15 employees who had participated in the strike of April 2. According to Schneider, he asked the employees "did they plan to come to work, or did they not plan to come to work, if there was going to be another work stoppage." In these conversations he advised the employees that he was concerned with being able to operate the plant effectively on the succeeding Saturday, April 9. He then asked each employee if the employee had any questions and promised that he would answer the questions honestly and to the best of his ability. As a result of this invitation various subjects were raised and discussed including subjects relating to the Union and to organizational problems. Schneider did not attempt to summarize any one conversation with any of these employees, however, he testified that the average conversation lasted from 15 to 30 minutes. The only employee who testified concerning his conversation with Schneider was Jack Barnes. Barnes credibly testified that his meeting with Schneider lasted from 25 to 30 minutes, and that during the meeting he was not asked whether he intended to report to work on Saturday, April 9. According to Barnes, his discussion with Schneider related to what he "hoped to gain by his union activities" and similar topics. While the refusal by each of the three employees to report alone to Schneider's office on April 11 was the ostensible reason for Schneider's decision to terminate their employment, nevertheless, Respondents' contention that such alleged insubordination was the sole basis for the decision ignores the operative influence of the antecedent events upon such decision. The 3 employees had joined some 47 other employees in a 1-day strike on Saturday, April 2. Beginning on Monday, April 4, on Schneider's 13 Miller's refusal to confer with Schneider unless accompanied by the other two members of the committee suggests that Miller believed Schneider wished to speak to him about matters touching upon the employees ' organizational activities 14 See Republic Aviation Corporation v N L R B., 324 U S 793 15 See Blue Flash Express, Inc, 109 NLRB 591. But see 883 instructions, the strikers were questioned by their supervisors as to why they had been absent from work and they candidly answered that they were protesting the Company's unlawful refusal to bargain with the Union as well as Pennell's discharge. On April 7 and 8 Schneider summoned the employees who had participated in the April 2 strike to his office. He testified that his purpose for interviewing these employees was to inquire whether they would join another strike on April 9, if one were to be called. However, this testimony does not unfold the whole picture. The supervisors could readily have made such inquires directly. The employees had not been reticent about advising their supervisors why they had remained away from work on April 2 and Schneider had no reason to believe that they would be any less frank in responding to inquiries by their supervisors as to whether they would support a strike on April 9 than they would be in answering the same question if posed by himself. Thus, Schneider must have had some more compelling reason for wishing personally to interview the April 2 strikers, which is further evidence by the following: 1. During each interview, which lasted from 15 to 30 minutes, Schneider invited discussion of subjects other than whether the employee intended to support a strike on April 9, and, in fact, discussed the Union and organizational matters with some of the employees whom he interviewed. 2. Barnes testified, without contradiction, that during his interview with Schneider the latter did not ask him whether he was going to report for work on April 9. This indicates that Schneider was so much concerned about discussing union matters and subjects related to the employees' organizational activities and so leittle concerned with discovering whether the employees were going to support a strike on April 9 that, at least in the case of Barnes, he completely overlooked the fact that the supposed purpose of the interview was to ascertain Barnes' attitude towards supporting a strike on April 9. 3. If the sole purpose of the interviews was to inquire of the employee whether they would support a strike on April 9, no explanation is given as to why Schneider did not permit Caldwell, Miller, and Williams to have the company of another employee during the requested interviews. Certainly, that simple question could have been asked each of them in the presence of another employee as well as while they were alone with Schneider. The reasonable inference to be drawn from these circumstances is that Schneider intended to take advantage of the opportunity for private discussions with the employees to attempt to wean their allegiance away from the Union and to win them over to the Company's point of view. Management's right to direct employee conduct is subject to the limitations of the Act." On April 8, Schneider sought to question Caldwell, Miller, and Williams about matters falling within the ambit of Section 7; namely, about their intentions to engage in a strike. While such queries might not violate the Act if made with proper safeguards under appropriate circumstances,15 employees have a protected statutory NLRB. v M & B Headwear Co, Inc, 349 F 2d 170 (CA 4), where the court observed , "Whenever a high executive calls production line workers into his office and questions them about their union activity in an atmosphere of `unnatural formality,' there is inevitably an implication of coercion [Citing Bourne v N.L R.B., 332 F 2d 47,48 (C A 2)1" 298-668 0-69-57 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD right to refuse to answer such questions. 16 If, as was the case here, the employees have reason to believe that they are being called to the office for interviews concerning their organizational activities, they are similarly protected in their refusals to report." The refusals by Caldwell, Miller, and Williams to report alone to Schneider's office on April 11, stand essentially on the same footing as their declinations on April 8. According to Schneider, he intended to reprimand them for their alleged insubordination in not reporting on April 8. However, such reprimand was not properly in order as the employees on April 8 were exercising their statutory rights in refusing to report to the office. Their discharges on April 11, therefore, "arises out of, or may be reasonably attributed to [the fact that the employees were] pressing their rights under the Act, the Act specifically makes such discharges unfair labor practices.""' A further basis for my findings that the three discharges were unlawful arises from the fact that Schneider's explanation that the sole reason for terminating Caldwell, Miller, and Williams was their failure to report to his office when summoned is not convincing in view of all the circumstances. The need for severe disciplinary measures directed against the three employees because they did not report to his office when summoned, according to Schneider, was his fear that such insubordination "meant that we were losing all control over how we were going to operate the plant."" Such fear appears to have been grossly exaggerated when, according to Schneider's testimony, at no time prior to April 8, 1966, had any employee failed to respond to a summons by any supervisor. Furthermore, the employees who declined to report to his office were not openly defying his directions but only requested that theLbe permitted the company of another employee during the interviews. These requests were directed to the supervisors who summoned them to the office and the employees were never advised that their requests were deemed to be insubordinate or even impertinent. Therefore, discharge, in these circumstances, was not only unexpected by the employees but was a harsh penalty to attach to their alleged misconduct,20 particularly as there is no evidence that their failure to report for the interviews in any way adversely affected the Company's operations or that these employees were otherwise unsatisfactory. The fact that Caldwell, Miller, and Williams were summarily discharged without being warned as to the probable consequences of their persistence in refusing to meet with Schneider in private21 reveals not that the Company was taking vigorous action to maintain plant discipline in the face of a legitimate basis for believing that discipline was being undermined, but that their alleged insubordination was being used as an excuse for effecting their terminations and thus ridding the Company of three militant union adherents. In the light of the Company's opposition to the organization of its employees, its hostility to the union supporters among the employees, and its unremedied unfair labor practices, the discharges of Caldwell, Miller, and Williams, in the circumstances described above, violated Section 8(a)(3) of the Act and constituted restraint, coercion, and interference with the rights of employees guaranteed in Section 7, in violation of Section 8(a)(1). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the 16 See Revere Copper and Brass, Incorporated, 138 NLRB 1377, 1391, enfd 324 F 2d 132 (C A 7), Montgomery Ward and Co , Incorporated, 154 NLRB 1197, fn 2,1262 " Company orders infringing upon Section 7 rights may not lawfully be enforced by discharge See Revere Copper and Brass, Inc., supra Here the employees were not advised as to why they were being summoned , therefore, when they declined to report to the office they took the risk that they were correct in their assumptions that the purpose in calling them was to question them about matters relating to their union or organizational activities See N L R B v Burnup and Sims, Inc , 379 U S 21 However, in this case, the employees rightly assumed that the reason for the requested meetings was to speak to them about their self-organizational activities Thus, it would have been unlawful for the Company to have discharged Caldwell, Miller, and Williams for their refusals on April 8 to report to the office for private meetings with Albert Schneider. Respondents argue that the work stoppages of April 2 and 9 were unprotected because they were of the same type which the Supreme Court found to be unprotected in International Union, U.A W, Local 232 v Wisconsin Employment Relations Board (Briggs & Stratton Corp ), 336 U S 245 It is open to question whether these work stoppages were outside the protective scope of Section 7 See N L.R B. v Insurance Agents ' International Union, AFL-CIO (Prudential, Ins Co ), 361 U S 477, 493, fn 23, The Dow Chemical Company,'152 NLRB 1150 Furthermore, in this case, as the work stoppages were reasonably responsive to the Company's persistent and unlawful refusal to recognize and to bargain with the Union, the recurrent character of the otherwise protected strike activity does not place such activity outside the pale of statutory protection. As the Supreme Court observed in Mastro Plastics Corp. v N.L.R B., 350 U S 270, 287, "There also is inherent inequity in any interpretation that penalizes one party . for conduct induced solely by the unlawful conduct of the other, thus giving advantage to the wrongdoer." 11 Culler Gin Company, Inc v. N L R B, 179 F,2d 499,501-502 (C A 5), reversed so as to enforce the Board's Order in full 340 U S 361 14 No reason was given by Schneider as to why he anticipated that there would be a proliferation of insubordinate acts if Caldwell, Miller, and Williams were not discharged However, Schneider gave the following explanation as to why he considered the alleged insubordinate conduct by the three employees to be a serious breach of discipline: I don't see how anyone charged with the responsibility for a large plant, manufacturing plant; and calling an employee-hiring employees between four and five hundred people can carry out the responsiblity encharged to him by the stockholders and owners of that Company, whatever it might be, in an effective and efficient manner, how he can plan his production program, how he can plan production techniques , how he can plan anything at all that pertains to an efficient manufacturing operation unless he is able to communicate freely with his people, unless he is able to discuss things with his employees as he wishes where he wishes and when he wishes , provided it is not an inconsiderate request or an unusual request in any way 20 It is noted that Caldwell worked for the Company 5 years, Williams 2 years, and Miller 1 year prior to their discharges 21 The requests on the part of Caldwell, Miller, and Williams for the company of a fellow employee during the requested interviews with Schneider were not unreasonable when it is considered that they never previously had been called to meet with Schneider alone and that the Company's prior unfair labor practices might well (as Caldwell testified it did in her case) have caused them to fear that the purpose of the interviews was to set the stage for their later discharges because of their union activities or to compel them involuntarily to engage in a discussion with their employer about the Union See Finesilver Manufacturing Company, 159 NLRB 923 SCHNEIDER MILLS 885 operations of the Respondents described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents have engaged in unfair labor practices, I shall recommend that they cease and desist therefrom and that they take certain affirmative action designed to effectuate the policies of the Act. For reasons which are stated in Consolidated Industries, Inc., 108 NLRB 60, 61, and cases there cited, I shall recommend a broad cease-and-desist order. Having found that the Respondents unlawfully discharged Eula Caldwell, Ned Miller, and Richard Williams on April 11, 1966, I shall recommend that the Respondents offer each of them immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make each of them whole for any loss of earnings he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he would have earned from the date of the discrimination against him to the date of Respondents' offer of reinstatement, less his net earnings during such period. The backpay provided herein shall be computed on the basis of calendar quarters, in accordance with the method proscribed in F. W. Woolworth Company, 90 NLRB 289. Interest at the rate of 6 percent per annum shall be added to such net backpay and shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. 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. By discriminating in regard to the hire and tenure of employment of Eula Caldwell, Ned Miller, and Richard Williams to discourage membership in the Union, and thereby interfering with, restraining , and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondents have engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 3. Respondents have not engaged in any unfair labor practices by reason of the conduct alleged in the complaint to have been in violation of the Act except insofar as such conduct has been found hereinabove to have violated Section 8(a)(1) and (3) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby recommend that Respondents Schneider Mills, Inc., and Jimmy and Josh, Inc., Taylorsville, North Carolina, their officers, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in Textile Workers Union of America, AFL-CIO, or any other labor organization, by discharging any employees or in any other manner discriminating against any employees in regard to their hire, tenure of employment, or any term or condition of their employment. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self- organization , to form labor organizations, to join or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer to Eula Caldwell, Ned Miller, and Richard Williams 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 section of this Decision entitled "The Remedy," for any loss of earnings he may have suffered by reason of Respondents' discrimination against him. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records relevant to a determination of the amount of backpay due to said employees. (c) Notify Eula Caldwell, Ned Miller, and Richard Williams 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. (d) Post at its plant in Taylorsville, North Carolina, copies of the attached notice marked "Appendix."22 Copies of said notice, to be furnished by the Regional Director for Region 11, after being duly signed by the Respondents' representative, shall be posted by Respondents 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 customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 11, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.23 tz 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 " 23 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 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 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 America, AFL-CIO, or any other labor organization , by discharging any of our employees or in any other manner discriminating against any of our employees in regard to their hire, tenure of employment , or any term or condition of their employment. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of their rights to self-organization , to form labor organizations , to join or assist the above-named Union, or any other labor organization , to bargain collectively through representatives of their own choosing , and to engage, in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities. WE WILL offer Eula Caldwell , Ned Miller, and Richard Williams full reinstatement to their former or to substantially equivalent positions , without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of their unlawful discharges. SCHNEIDER MILLS, INC., AND JIMMY AND JOSH, INC. (Employer) Dated By (Representative) (Title) Note: We will notify Eula Caldwell, Ned Miller, and Richard Williams 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. 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.