The Magee Carpet Co.

MAGEE CARPET COMPANY 39 The Magee Carpet Company and Alan R. Howe, At- torney for Textile Workers Alliance, Affiliated with the Textile Workers Union of America, AFL-CIO. Case 4-CA-4062 November 1, 1967 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND J ENKINS On May 31, 1967, Trial Examiner Thomas A. Ricci issued his Decision in the above-entitled proceeding, finding that 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 also found that Respondent had not engaged in cer- tain other alleged unfair labor practices. Thereafter, the General Counsel and Respondent filed excep- tions to the Trial Examiner's Decision with sup- porting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional 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 briefs, and the entire record in the case, and hereby adopts the findings,[ conclusions, and recommenda- tions of the Trial Examiner, except as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board , adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that the Respondent, The Magee Carpet Com- pany , Bloomsburg , Pennsylvania, its officers, agents, successors , and assigns , shall take the ac- tion set forth in the Trial Examiner's Recom- mended Order , as herein modified: 1. Substitute for paragraph 1(b) of the Trial Ex- aminer's Recommended Order the following: "(b) Threatening or discriminating against em- ployees in any manner including threat of suspen- sion or discharge if they join or assist the Textile Workers Union of America , AFL-CIO; offering to pay employees as inducement for withdrawal from that Union ; interrogating employees in a coercive manner concerning their union activities ; promul- gating, maintaining, or enforcing either (1) a rule against union solicitation on company property dur- ing nonworking time, or (2) a rule against union sol- icitation while permitting other types of solicitation during working time where a purpose thereof is to interfere with union organization." 2. Add the following to paragraph 2(a) of the Recommended Order: "Notify Kenneth Martz, if presently serving in the Armed Forces of the United States, of his 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." 3. Delete from paragraph 2(e) of the Trial Ex- aminer's Recommended Order that part thereof which reads "to be furnished" and substitute therefor "on forms provided...." 4. Delete the second indented paragraph of the Appendix and add the following: WE WILL NOT threaten or discriminate against our employees in any manner including threat of suspension or discharge if they join or assist the Textile Workers Union of America, AFL-CIO; offer to pay employees anything as an inducement for withdrawal from that Union; interrogate our employees in a coercive manner concerning their union activities; or promulgate, maintain in effect, enforce, or apply either (1) a rule against union solicitation on company property during nonworking time, or (2) a rule against union solicitation while permitting other types of solicitation during working time where a purpose thereof is to in- terfere with union organization. ' Respondent has excepted to certain of the Trial Examiner's credibility findings As the clear preponderance of the relevant evidence does not persuade us that the Trial Examiner 's resolution of credibility issues was' incorrect, we find insufficient basis for disturbing his credibility findings Standard Dry Wall Products , Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3). TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Trial Examiner: A hearing in the above-entitled proceeding was held at Bloomsburg, Pennsylvania, from December 13 through 20, 1966, and on February 13, 1967, on complaint of the General Counsel against The Magee Carpet Company, herein called the Respondent or the Company The original charge in the case was filed on August 8, 1966, and the complaint issued on November 10, 1966. The issues litigated are whether the Respondent violated Section 8(a)(1) and (3) of the statute. After the close of the hear- ing briefs were filed by the General Counsel and the Respondent 168 NLRB No. 11 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record, and from my observation of the witnesses, I make the following:' FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Magee Carpet Company, a Pennsylvania corpora- tion, is engaged in the manufacture and sale of carpets, with its principal place of business in Bloomsburg, Pennsylvania. During the past 12-month period it shipped merchandise valued in excess of $1 million to customers located outside the Commonwealth of Pennsylvania. I find that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the poli- cies of the Act to exercise jurisdiction herein. 11. THE LABOR ORGANIZATION INVOLVED Textile Workers Union of America, AFL-CIO, herein called the Charging Union , or the Textile Workers, or the CIO, is a labor organization within the meaning of Sec- tion 2 (5) off the Act.2 device used to further the attempt to bring the Textile Workers into the plant. The essential allegations of the complaint are that in each of these 10 situations the Respondent deprived the employees of work because of their pro-Textile Workers activities, and to put a stop to the entire affiliation move- ment, all in violation of Section 8(a)(3) of the Act. There are other detailed charges of unlawfully coercive state- ments and acts in contravention of Section 8(a)(1). The broad thrust of the complaint as a whole is against what is said to be a pervasive, unrelenting, and fear-inducing program of the Company aimed at eliminating any vestige of hope among its employees for collective bargaining by any labor organization other than the Alliance. The remedy sought is to free the employees to exercise their statutory rights to Join any union of their choice. For the most part the defense assertion is that, except for one or two instances, the disciplinary layoffs or discharges were imposed as routine enforcement of a per- missible company rule against solicitation during working time. The Respondent denies the commission of any un- fair labor practices. Iii. THE UNFAIR LABOR PRACTICES A. Background For many years a labor organization called Textile Workers Alliance of The Magee Carpet Company, its ac- tivities and jurisdiction limited strictly to the employees of this Company, has represented the employees in col- lective bargaining. There was an executive board, con- sisting of officers, and a group of committeemen, elected periodically by the employees of the various departments. Regular meetings were held by this board and commit- teemen jointly, followed by meetings between the execu- tive board and management representatives, where mat- ters concerning working conditions of employees were considered. The last contract between the Company and this organization is dated December 1964, and extends to July 1967. In the fall of 1965 there developed among the officers of this independent Alliance and among rank-and-file em- ployees, a movement to associate the Alliance with some union having a broader base, such as Textile Workers In- ternational. There was talk of "affiliation" or "merger" with an AFL-CIO group. With the employees divided in sentiment on this question, the Company threw the full weight of its influence against the desire of some to break out of the single-company union concept. The campaign to establish the Textile Workers as the effective bargain- ing agent in replacement of the Alliance grew in intensity as the spring of 1966 came. In June the Company suspended from work, or discharged, eight employees and on August 4 and September I released or suspended two more. Of this total, eight had been publicized mem- bers of the "Merger Committee," the organizational ' On January 10, 1967, counsel for the Respondent filed a motion "To Retake Testimony of December 13, 1966," on the grounds that discre- pancies and omissions in the stenographic transcript of testimony received that day made it unreliable No opposition was filed by the other parties, and the motion was granted The witnesses who had testified on December 13 appeared again at a reopened hearing on February 13, 1967, and their testimony was fully received then Accordingly, the trans- cript made of the December 13 hearing is no longer a part of the record herein B. Organizational Activities; the Respondent's Attitude and Reaction; Interference, Restraint, and Coercion Sometime in September or October 1965, Kenneth Martz, an employee in the dye department, and an elected committeeman of the Alliance, invited an agent of the Textile Workers to his home for assistance in the procedures that could best change the bargaining agent. In consequence, at a subsequent meeting of the Alliance committeemen, Martz invited the others to sign a paper as indication of their willingness to constitute a "merger committee," a starting point to rally the employees to the cause; many did sign. There followed what Martz called "mass meetings" of employees, some in his home. The merger group placed announcements in the local Blooms- burg newspap, inviting all to central meetings; one ap- peared shortly before February 27, 1966, and another be- fore May 22. On each of the newspaper notices were listed the 27 or 28 members of the merger committee. The May notice said that an AFL-CIO charter would be presented. The Respondent's opposition was intense. Among other things it placed large notices in the town newspaper urging its employees to refrain from joining the Textile Workers, and to resist any attempt to move the Alliance into a larger union. The tone of the appeal was extreme, degrading, and deriding the AFL-CIO, instilling fear of economic suffering if the Alliance were replaced by any affiliated union, and generally supporting the entrenched position of the old independent. Top officers of the Com- pany, usually James Law, president, and Mr. Magee, board chairman, sent a number of personal letters to each employee at home. Again, the message was repeated that 2 The complaint alleges , and a witness testified, that among the em- ployees of the Respondent the Charging Union also designates itself as Textile Workers Alliance , affiliated with the Textile Workers Union of America , AFL-CIO. The Respondent disputes the right of that Union so to designate itself in Bloomsburg, Pennsylvania The question thus raised more appropriately relates to an issue presented in a representation proceeding , and is in no sense material to the questions to be decided in this case There is therefore no reason for that matter to be considered here further MAGEE CARPET COMPANY 41 association with the Textile Workers, or the CIO, invited danger. There was a concerted effort, led by members of the merger committee, to obtain signatures to membership or authorization cards in favor of the Textile Workers. As a result of these activities an election was arranged, to be conducted by the Honest Ballot Association, with the employees voting on the question of merger with the AFL-CIO. About the same time officers or members of the Alliance also arranged for a merger vote to be held by the same association. On April 11 an election was held at the company plant and on April 17 an election was held at a nearby union hall. At the union hall the vote was 578 for affiliation and 71 against; at the company plant the the vote was 441 against affiliation and 141 in favor.' With the employees so evenly divided, the Respondent filed a Board petition requesting a Government-con- ducted election - Case 4-RM-553. In the course of the hearing on that petition, however, late in May, the Com- pany changed strategy, and instead asked that its own petition be dismissed, on the ground that the then still cur- rent contract with the Alliance precluded any expression of choice by the employees. Within a matter of days, early in June, began what appears to have been unprecedented enforcement of a company rule, or policy, against solicita- tion, and a pattern of disciplinary action falling heavily upon members of the merger committee. It is during this peak period of organizational activities, while members of the merger committee were obtaining supporting membership signatures in favor of the Textile Workers, that the Company's campaign literature to com- bat the program became most insidious. On June 4 a full- page newspaper notice appeared over the name of Com- pany President James Law, urging "loyal Magee Carpet Company employees" not to sign AFL-CIO cards because "your name on an AFL-CIO Union card is like signing a blank check ... it can be very hard to get a card back once it has your name on it." The notice contained, among other things, the following statement: This matter is of course, one of concern to our Com- pany. It is also, however, a matter of serious concern to you and your family. Our sincere belief is that if this AFL-CIO Union were to get in here, it would not work to your benefit but could work to your sen- ous harm! As the Board has found, this threat of harm to follow adherence to a union the employees might choose, con- stituted unlawful coercion upon them.4 Particularly must the threat be deemed unlawful in this case in view of the unfair labor practices found below.5 I find that by this printed statement to its employees the Respondent vio- lated Section 8(a)(1) of the Act. Another full-page open letter, signed by Harry F. Magee, of the Company's executive board, appeared in the June I1 newspaper. Magee announced he was going "to get into the fracas - and to come in swinging," and added, among other things: "This CIO union, that is try- ing to get into our Company, has a record of strikes, beatings, threatening phone calls, dynamiting, shootings, etc." The notice also read: "Remember that labor dif- ficulties and labor strife have caused over 85% of the car- pet industry to move South. Your company is the last remaining major carpet mill in the North. Do we want this CIO Union to add our name to the casualty list9" A third newspaper statement repeated the dread forebodings of what the TWUA-AFL-CIO could bring. It listed a number of carpet manufacturing companies of the North which had closed or moved to the South "because of this union": "This union could be the major reason for the Magee Carpet Company and other area in- dustries being added to the casualty list ... don't kill the goose that laid the golden egg." Apace with the newspaper ads, Company President Law wrote a series of letters to the employees' homes, re- peating in consistent refrain, castigation of the AFL-CIO, portentions of dire financial burden on the employees, and relisting of the many companies driven from their established locations to distant places, all with consequent irreparable danger to those who worked. One of these letters, dated June 1, spoke of Textile Workers organizers as "night riders." Two days later Ruel Hart- man, assistant supervisor in the cover and sample depart- ment, engaged several employees in conversation while they were working; these included Florence Woolever and Leona Walters. During the conversation Beulah Evans and William Stellfox also joined in. There is a little, but not very consequential, conflict in the testimony as to what was said. As Hartman first recalled, Walters "stopped" him and asked about the night riders' letter of Law. "I tried to explain to her about the letter and so forth and how I felt about it, and interpreted it ... I went into my explanation of my personal opinion of how to in- terpret the letter.... I felt what was meant by night riders was a person affiliated with the CIO or some other or- ganization outside of the mill. If this is their job to have cards signed, normally if they are working during the day shift would be the only time to have cards signed because they are not allowed to be signed during Mill working hours." Later in his testimony Hartman was asked: "Q. You were stopped by Mrs. Walters? A. I stop to talk to them." Again he said: "Either one of them stopped me or I stopped them ...." According to the foreman, Stellfox did not take part in the conversation, but Paul Hidley, whose machine was nearby, did approach and join in. As the group talked, it came to light that Walters and Woolever had signed a CIO card. At this point, as both Woolever and Walters recalled, Hartman said: "If you signed a card, you are no longer employed by Magee." The foreman did not contradict this. Walters and Wool- ever also testified that Hartman offered them $10 for their cards, saying: "I'll give you $10.00 if you hand me your cards." Here the foreman's version is different in form but not in substance. "I made a bet with them that I would bet them ten dollars if they would get their card back." There then followed a further variance in the stories, again not of great significance. The employees said Steil- 3 The election on company premises was a form of interrogation by the Company Cf Blue Flash Express, Inc, 109 NLRB 591 The employees were invited by the personnel manager to participate via a notice posted over his and the Company's name throughout the plant The employees were released by department to facilitate their balloting. In the light of the overwhelming evidence set out below of animosity towards the Textile Workers by the Respondent , no valid claim can be made in this case that the purpose was merely to ascertain the desires of the employees As the complaint does not allege this interrogation to have been unlawful, I make no finding of unfair labor practices concerning it Greensboro Housing Mills, 162 N LRB 1275 3 Cf Jackson Co, 160 NLRB 1781 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fox passed by and offered to permit Hartman himself to select these girls' cards from the many, with Hartman saying he wanted it from the girls, and not from him. As Hartman told it, it was a few days later that Stellfox made him the offer and he said his bet was not made with him but with the women . In his final statement as a witness Hartman admitted that when he opened the subject of paying $10 for union cards, whatever the precise nature of his offer, none of the employees had voiced any desire to recall their union memberships or authorizations. With the record in its entirety clearly showing a widespread invitation to the employees to get back any cards they may have signed, with Hartman's admission he raised the subject of money inducement without any employee having indicated a change of heart, and on the basis of the demeanor of the witnesses , I credit the em- ployees against the foreman. I find that by telling the em- ployees who had signed Textile Workers cards they were no longer employees of the Company, Hartman in effect threatened them with discharge because of their union ac- tivities, and thereby committed an unfair labor practice in violation of Section 8(a)(1) of the Act chargeable to the Respondent. There is also testimony proving coercive statements and unlawful intimidation by Howard Swisher, who works in the cardroom of the spinning mill. The complaint alleges he was a supervisor as defined in the Act at the time of the events. In its answer the Respondent admitted this to be true, but at the hearing its counsel withdrew the admission and contended Swisher had not become a su- pervisor until some time later. Leon Riggs, 30 years an employee, testified Swisher was maintenance foreman in June 1966 and that on the 6th "he asked me if I had signed the CIO card or if I wanted mine back or if I knew anybody else that might want their card back." Riggs an- swered this was none of the foreman's business. Alfred Budner, a finisher in the same department , also identified Swisher as a maintenance foreman. He said that on June 8 Swisher spoke to him about 11 a.m., while the em- ployee was working, and asked if he had signed a CIO card and did he know what he was signing . Budner said he had signed. About 3 p. m. that afternoon , as he was going out, Swisher also said , as Budner continued to relate, "that anybody signing a CIO card would be fired." Doyle Shaffer, another finisher, testified that about May 8, be- fore he had signed a • card for the CIO, Swisher ap- proached him while he was working and "wanted to know if I wanted my CIO card or if I knew anybody that signed a CIO card and didn't know what they signed and wanted it back." Although still in the employ of the Respondent,, Swisher was not offered as a witness. I credit the' testimony of these employees. In support of its belated contention that Swisher was not then a supervisor, there is the testimony of Myles Katerman, the mill superinten- dent and secretary of the Company. He said that in June Swisher was a maintenance fixer, that he was then hourly paid, and did not have the right to hire or discharge. Katerman also said that there are supervisors who are hourly paid, that fixers have always been excluded from the collective-bargaining agreement with the Alliance, that unlike all production and maintenance employees they need not be members of the Alliance and that Swisher was not a member, that fixers attend supervisory meetings , and that as a class they are authorized to issue reprimands . Katerman then explained that whether or not particular fixers do issue reprimands depends upon the in- ternal rules of "certain" divisions. It is doubtful that Katerman, apparently the highest operational chief of so large a plant- with about 65 fixers -really knew which individual fixers fall in any special category. More signifi- cant, however, is his further statement that Swisher - even in June - did have the authority to "recommend dismissal or recommend disciplinary action." On this record I am satisfied that Swisher-even before his recent promotion to assistant superintendent in the casting de- partment - was a supervisor within the meaning of Sec- tion 2(11) of the Act. Ohio Power Company v. N.L R.B., 176 F.2d 385 (C.A. 6). Accordingly, I find that his state- ment to Budner that persons who signed CIO cards would be discharged , and his questioning of all of these employees as to whether they or others had signed such cards for the Union, constituted unfair labor practices in violation of Section 8(a)(1) of the Act. I also find that by offering to pay them if they would take back their union cards, Hartman was attempting to bribe them away from their union resolve, and thereby committed a further unfair labor practice violative of the statute. C. The No-Solicitation Rule Because the acts of discrimination set out in the com- plaint, directly or indirectly, involved purported enforce- ment of a no-solicitation rule, it is important at the outset to determine, on the basis of the evidence in its totality, the exact nature of the rule, or policy, which the Respond- ent contends underlies a number of the discriminations in employment now said to have been illegal. The word- ing of the printed and widely publicized rule of conduct, the unusual work-duty arrangements in many depart- ments precluding definitive determination of what time was "work" time and what periods were alloted to "breaks," "lunch," or "smoke" privileges, the nature of a production process always permitting general discus- sion and talk while machines are in operation, the long-ac- cepted practice throughout the plant of solicitation and distribution of greatly varied other subjects and things, the concomitant efforts of management representatives themselves to induce employees , as they worked, to re- ject any outside union - all these are relevant factors shedding light on what ultinitely must be a factual find- ing as to the true motivation underlying the disciplinary actions put in question . In a broad sense , that total picture emerging from overall appraisal of these pertinent con- siderations , bears a persuasive relationship to every act of discrimination now defended - each in isolation - as no more than separate exercises of management preroga- tives to run an efficient business. As written in virtually every notice of reprimand given to employees in the spring and summer of 1966, and as re- stated in the Respondent's brief after the close of the hearing, the "policy" being enforced was against "sol- icitation during working hours." In contrast to this phrase , there is a rule of conduct set out in precise words in the Company's employee handbook, long the publicized and effective regulation throughout the plant. Indeed, company representatives at the hearing said that the "personal conduct" rules appearing in the handbook are by reference a part of the Company's collective-bar- gaining agreement with the old Alliance . Here the no-sol- icitation rule reads: MAGEE CARPET COMPANY 43 No solicitation of any kind is or will be permitted on the Company time or property. This includes lot- teries, raffles, pools, tickets for benefits, collections or any other type of solicitation. Disregard of this rule will result in disciplinary action. There is no evidence, nor is it claimed, that the em- ployees were ever advised of any narrowing of this rule so as to restrict its application to working time. Appraisal of the realities of whatever purpose or policy concerning solicitation the Respondent sought to enforce, must therefore start with a finding that it has long had in effect, and is enforcing today, an unlawful rule against union solicitation.6 There is no contention that in this instance the broad ban against employees discussing their union desires, or urging fellow employees towards one view or another on the matter, was justified for business reasons, or production problems; in fact the total evidence precludes any such possible attempt to defend the all-in- clusive prohibition in this plant. All the managers ever told employees, and all the officers said at the hearing, is simply that the Company had a policy, and nothing more. I find that by maintaining and enforcing this no-solicita- tion rule, set out in its employee handbook, the Respond- ent has unlawfully coerced its employees, and is now coercing them, in their right to engage in unfettered self- organizational activities, in violation of Section 8(a)(1) of the Act. In its brief the Respondent requests that, for purposes of judgment now, the rule it has always imposed upon all employees be divided into one lawful, and one perhaps il- legal part. Whatever may be said of such a defense in other circumstances, the picture of this case as a whole precludes artificial retroactive restructuring of the rule. In general the plant operates three shifts -each 8 hours. The record is replete with evidence of employees leaving their machines a few minutes, or 5 or 10 minutes, before the 11 p.m., 7 a.m., and 3 p.m. shift change hour to punch out at the timeclock; they often line up for a while before the deadline moment to punch their cards. Much of the sol- icitation of Textile Workers Union cards, or plain talking among employees on the subject, occurred during such moments. Whether this can be called "working time" or not, is not quite clear, and lends confusion to the assertion now that such talk violated a divisible part of the broad and improper restraint upon the employees' right to talk about union matters while not working. In many of the departments there is no regular period of rest, or even lunch. Many of the machines need merely to be looked at as they run and can also be left unattended at times; the people chat with one another, choose their own time for smoke breaks, and eat lunch at their posts while paid time runs on the clock. This, of course, serves the Company's interest in having the production process function without interruption virtually all 24 hours of the day. Nine em- ployee witnesses, some called by the Respondent, testified without contradiction that this is the established system in their departments; these include the pressure dye department, the high speed beamer section, the spinning machine department, the buffing department, and what was referred to as the centralized packaging de- partment, seemingly a very large one occupying three floors in one building.7 In recalling details of certain solicitation activities that went on in the plant, a number of employees spoke of being on their "breaks" when they did it, and they ex- plained these were break periods they were free to choose because their machines were then running smoothly. If at the time others in the department were walking by, they too might be going to the restroom, or for a smoke, on "breaks" they themselves had decided to take at that mo- ment. In such circumstances, it becomes virtually im- possible to say with assurance whether particular invita- tions to discuss the Union, or appeals for support, did or did not occur during working hours. Certainly the conclu- sionary words of certain witnesses that when so ap- proached they, or the persons who accosted them, were not on their breaks, falls short of positive evidence, either that the employees suspended in fact talked to others while they were supposed to be working, or that the su- pervisors who disciplined them had real reason to think so. Of course it is equally true that the denials of certain employees themselves - that they did not seek Textile Workers support during working time - are subject to the same infirmities. The record is silent on whether any of the large group of employees who worked in this continu- ous operation had any time to themselves otherwise in the plant. If lunch and breaktime were not theirs to use freely, the net effect was exactly as written in the employee handbook - no solicitation ever within the plant. Despite the argument in its brief that in any event the Respondent had a right to enforce a work rule -written or not, announced in advance or sprung upon the work force without notice -there is no serious assertion that in this instance production problems justified a broad no- solicitation rule, or that it was for the purpose of assuring proper work performance that extraneous discussion could not be tolerated. In view of the clear evidence of general freedom to talk, especially in all these depart- ments, the assertion would fail in any event. It is nevertheless possible that for the very reason that break or lunchtime must be indeterminate, an employer could decide to prohibit any kind of solicitation or discussion of outside activities throughout the work areas at any time. The argument is not made in this case, but conceivably in such special circumstances a rule so broad might even be defensible. There are situations however, where the real aim of an employer who seeks to quiet discussion becomes more clearly discernible by first ascertaining those objects or purposes which are not in the mind of management. Unlimited discussion among employees on almost every conceivable subject other than unionism, whether on or off "working time," however the phrase be applied here, was never of concern to this Company. And this is true regardless of how the word "solicitation" was used in its printed rule-be it just pro and con talk, appeals for joining any activity, contribution, or purchases. One wit- ness atter another gave details - none contradicted - of chances sold in world series baseball pools, money con- tributions solicited for flowers and gifts appropriate for outside activities of employees, membership enlisted into a Starlight Skating Club, requests for cash assistance to send the child of an employee to an out-of-State school, the raffling of luggage as a prize in a money raising cam- 6 Stoddard-Quirk Manufacturing Co., 138 NLRB 615 take off for smoke break when you get a chance There's no whistle that 7 Thus, employee Charles Long "We take off for lunch break and we blows or nobody comes and tells you, when you get a chance for a break " 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD paign , Girl Scout cookies sold and distributed, participa- tion in a private ambulance service system sold among all employees, etc. All of this during what the employees constantly called "working time." Foremenjoined in the sale, purchasing, and distribution of many articles. Within a short period before the hearing, indeed the very Friday before one witness appeared on the stand, employees cir- culated a statement for employees to sign and indicated their desire to attend a Christmas party. One foreman sold Tupperware and made deliveries while the em- ployees worked, as a courtesy to his wife. No word of criticism ever, so far as appears on the record, for any of this activity. Nor any indication that it interfered with production. Pay is distributed to each employee in an en- velope while they work. In each envelope the Company at times gave each employee a written appeal for United Fund contributions. Clearly, therefore, whatever the rule was when the em- ployees started their movement to bring the Textile Wor- kers into the plant, if it can be said there was any rule at all, it was concerned with nothing except the question of union activities. With this, the area of interest to the Respondent on this matter of solicitation begins to nar- row very significantly. It becomes more pinpointed when other activities of management representatives are con- sidered. In October 1965, shortly after the merger pro- gram had been launched, Personnel Director Leonard Bason stopped Kenneth Martz, a leading instigator and a tow truck operator, in the middle of the large work floor, to discuss the movement with him, and to persuade him to abandon the idea. Martz moved materials from place to place with the truck. Bason kept him in conversation for well over half an hour; he even offered the man a job as watchman, a change which would have removed Martz from union eligibility or inclusion in any bargaining unit which the Textile Workers might represent. The delay held up the work, and a passing foreman asked for the truck to keep things moving. Bason said okay, the truck went on its way with the foreman, and Bason continued his talk with Martz. At this point the personnel director gave no thought to the principle that "working time is for work," as the Respondent now argues in its brief. About June 1, only days before several employees were suspended for talking union to others, Drew Miller, tufting division foreman, chatted with three employees at their work stations about the union movement: To the best of my recollection I said that I had worked under the CIO union for seven years and that no union, regardless of what it was, TWA, CIO or whatever you have is any better than the people that ran it. I said if we didn't have Kenny Martz and loggerheads such as him to head the union, I couldn't see where they would be any better off than they were right now. This was my personal opinion. John Blackledge, assistant superintendent of the tufting department, said he spoke to Martz many times before the fall of 1966 about the activities of the old Alliance: "Kenny had some misgivings about the processing of grievances and he was dissatisfied with the way things were going on in the union . . . there were problems that were brought up ... I would of course, ask questions and among them I can recall one particular time. I asked Kenny why he did not work to do something about it. The things he was unhappy about " In the beginning of June, in a personal letter to all em- ployees, the Company described the Textile Workers or- ganizers who visited employees at home as "night riders." This gave rise to the incident about June 3, when Foreman Hartman engaged three or four employees in conversation while they were at work to discuss the Union with them and to voice his personal opinion about things. Hartman admitted these employees were hourly paid and that he took them from their work for discus- sion; he spoke to them, as he himself admitted, 15 or 20 minutes. Clearly the "rule" did not prohibit talk against the CIO, against outside unions, or against solicitation to recover CIO cards, as distinguished from signing them in the first place. On this record there can be no question but that talk of union activities did not disturb the Company provided it was directed towards discouraging affiliation with an out- side union. After the events set out in this complaint, the Respondent took the position it was wrong both for em- ployees to urge others towards a union view, and for em- ployees to listen to others attempting to persuade them If such were truly the case, all of the employees subjected to these appeals by supervisors to turn against the merger committee violated the rule, but were forgiven It follows, by fair affirmative restatement, that the Respondent's sole determination was to put a stop to any talk or sol- icitation favorable to the Textile Workers as a possible bargaining agent in its plant. If this conclusion requires any further support, it appears on the face of the pay en- velopes placed in the hands of each employee at work During the peak of the merger activities, the Company printed some small talk on the outside of the envelopes, all designed to provoke anti-Textile Workers sentiment. For example, the June 23 pay envelope said Joe- Mr Law's speech gave us some things to think about, did't it? Bill: Sure did, Joe, I hadn't realized that over 80% of the carpet being made today is being made in non- union plants in the south. On August 11. Joe. Those Baltimore Orioles are really winning ball games this year. Bill- Yes, good hitting and good pitching and a real team spirit wins ball games ... and that's what pays off in World Series money. Yes, that's right ... and in our game - manufacturing carpet - harmonious relations between employees and management have made us a team hard to beat . and has paid off for us at profit sharing time. We've lost a lot of grounds when the "outsiders" in- terrupted our team spirit .. let's get back on the ball. On August 25• Joe: If some people don't like their job here, I un- derstand that their "Big Daddy" will hire them to pass out circulars and "night ride." Bill: Yes, I heard about that. That would be a good job for some of them, too, just so they don't bother us. Aside from the fact that these envelopes in themselves constituted pure solicitation in favor of the old indepen- dent Alliance, and therefore complete proof that in reality there was no rule against solicitation, they also evidence a desire by the Company that there should be talk and exchange of ideas among the employees during working hours on this subject. What discussion was intended, however, had to be in favor of the established company union , and in discouragement of the "CIO." There is no escaping the final conclusion, as all of the relevant factors are considered, that the only rule emerging from all this was a policy, throughout the Company and everywhere MAGEE CARPET COMPANY 45 in the plant, to stop activities in favor of the Textile Work- ers, to stop only activities in favor of that Union, and to disregard all other activities of any kind. D. Violations of Section 8(a)(3) Seven of the employees listed in the complaint as un- lawfully discharged or suspended from work were told at the time they were being disciplined for "soliciting during working hours " i n appraising the merits of the defense as to these persons, a rule of Board law must be kept in mind. The Board has held that when, with the advent of self-organizational activities, an employer for the first time announces and enforces rules against solicitation of employees during working hours, if it appears that his purpose is to curb such activities and there is no persua- sive evidence that production necessities or disciplinary requirements warrant the innovation, he coerces his em- ployees unlawfully, and the presumption of validity other- wise attaching to a rule against such activities during working time is overcome. In William Block Co, 150 N LRB 341, the Board considered a rule of this kind, and found it to constitute a violation of Section 8(a)(1) of the Act, and the discharge of an employee for having violated the rule unlawful discrimination in contravention of Sec- tion 8(a)(3). "Since the record amply supports his [the Trial Examiner's] findings that the rule was not necessa- ry to maintain production and discipline and that it was not promulgated in furtherance of an employer's legitimate interest of serving production, order and discipline, but specifically for the purpose of defeating union organiza- tion, we adopt his finding that the no-solicitation rule is unlawful." The principle of the Block decision is persuasively ap- plicable here. 1. Kenneth Martz, Charles Polk, Joseph Weiss, and Charles Long On June 6, four men were suspended from work - Ken- neth Martz, Charles Polk, Joseph Weiss, and Charles Long, each for the stated reason, as written on a repri- mand slip given each man, that he had "violated conipany policy - solicitation during working time." Each was a member of the merger committee. At the hearing they gave varying testimony concerning their solicitation of others to join the Textile Workers movement, and there is some conflict, as to some of them at least, in the record concerning precisely how or when they went about it. Assuming, a finding which I do not make with respect to each of these four men, that they had in fact spoken to other employees during working time instead of while on their "breaks," as they said, I would conclude that in each case the disciplinary suspension constituted a violation of Section 8(a)(3) of the Act as alleged in the complaint. That the purpose of the Company's policy was to stifle the CIO campaign, to deny the employees their statutory right to solicit on behalf of a union of their own choice, is clear on the record.8 The unlawful motivation is clear under the rule of the Block case.9 There are, however, further facts lending support to a conclusion of unlawful intent. Weiss, Polk, and Kenneth Martz were called away from work on June 6 to the office of Foreman Paul Slusser, tufting superintendent, who told them all they were suspended for soliciting on company time. They de- nied having done so; Polk asked for evidence of any misconduct, but Slusser replied there was none. The men asked to see the personnel director, and Slusser telephoned Bason, who said he was too busy then. Slusser did not testify, and l • believe the employees' testimony that he put no limitation upon the disciplinary action, saying only "you're terminated, go home 'till further notice." Weiss had been an employee 7 years, Martz 12, and Polk 36 Weiss had never received a repri- mand notice, Polk not in 30 years, and Martz only a few days before in the circumstances discussed below. To for- malize the action, written reprimand notices were sent to the men a few days later, one delivered to Weiss in person at home by a committeeman of the Alliance, the now an- timerger group. About June 23 there was a meeting between manage- ment and the executive board of the old Alliance. Each of these three men were called in separately and their cases considered. Here Bason repeated to Polk that he had sol- icited against company policy. Polk asked to see the evidence, but Bason said he had statements he did not care to reveal. Martz also pleaded innocent, and Bason said he had "many, many many signed statements that I had solicited on mill time," but could not tell who the in- formants had been. Weiss' suspension was continued through July 12; he returned to work on the 18th, when the 2-week vacation period throughout the plant ended. Polk was permitted to return to work on June 20. To Martz, Bason said he would be disciplined with a further 90-day suspension. At this point Martz turned to Telesky, a board member of the Alliance, for help through the executive board of that group, but she said: "That is only done when you're right." By letter dated August 4 Martz was discharged outright. Charles Long worked for the Respondent for 19 years; he had last been reprimanded in 1955. When he arrived for his night shift at I I p.m. Kessler told him, at the en- trance to the plant, he was suspended from 2 to 4 weeks for soliciting, and sent him home. A few days later the usual written notice - "violating company policy - solicit- ing on mill time" - reached his home. Long also appeared at the June 23 conference between company and Alliance officers. Asked what his defense was, he answered by de- manding what proof there was. Bason, and Schwartz, the president of the Alliance, answered there was none. Bason then said Long was being suspended through July 18, and when Long asked the committee to process a grievance on his behalf they replied "they didn't think they should spend the Union's money on it." In the end Bason said, still according to Long's uncontradicted and credited testimony, "that I had shown a poor attitude the fall before; and if I'd go up there again and violate the rules again, I'd be thrown out." On the evening of July 18, the very night Long was to return to work, Foreman " Testimony by Florence Eves, operator of a yarn twister machine, called by the Respondent Q Have you ever left your machine to go around to your side and talk to somebody9 A If 1 had, to, yes, but not for the CI O Q. You talked about something else9 A 1 ike my family, children, something like that Lillian Foust, another company witness, who operates a cardboard tuber machine, quoted Frank Kessler, a superintendent who later discharged some of the employees involved in this case Well, he [Kessler) said anytime we get one of these cards from the CIO or anybody talks about it, we are supposed to keep and report to him, but don't discuss this on the floor See also Serv-Air, 161 NLRB 382, and Pepsi-Cola, 155 NLRB 527 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kessler telephoned him and said from 2 to 4 more weeks disciplinary suspension had been imposed, and Long could not report for work until August 15. He came back that day. I do not believe the testimony of the several company witnesses who said these four men were suspended or discharged in disciplinary measure for solicitation activi- ties. There are a number of elements in the asserted affirm- ative defense of discharge for cause that cumulatively weaken its persuasive content against the compelling in- ference arising from the positive evidence of union (CIO) animus. These were old time employees; they were sent home without advance notice, some at the moment they arrived to start a shift-even late at night; they were de- nied the courtesy of seeing what evidence pointed to their improper conduct; they were punished without hearing or opportunity to explain. The meeting between agents of the Company and the old Alliance, euphemistically called a grievance conference by some witnesses, was a sham, so far as providing a fair hearing to these men By this time the Company's uncompromising resolution to saddle the old Alliance permanently upon the employees as their bargaining agent regardless of the desires of the em- ployees themselves was clear and the dissident group had been effectively weeded out of the old union hierarchy Katerman had asked Long some time earlier which side he was on. A number of the old committeemen who had joined the merger groups had been removed from office. A most significant indication of the cooperation that was going on between the Company and the Alliance -jointly aimed at stopping Textile Workers affiliation - is a letter mailed by the personnel director on May 24, only 2 weeks before the group suspension: To: Charles Polk Because of your public expression of interest with T.W.U.A which we consider to be alien to the best interests of the Textile Workers Alliance (which or- ganization the Company still has a contract with), we are discontinuing weekly meetings with you as an Executive Board member until further notice. Yours, Leonard B. Bason Personnel Director Two days later, on May 26, a second letter, this time on the stationery of the Alliance and signed by its pres- ident , reached Long, and removed him from office because of his "publicly declared interest in the AFL-CIO." Polk's testimony that although he favored the merger idea, he did not solicit during working hours, is not con- tradicted at all. In its brief, filed after the close of the hearing, the Respondent says Polk's suspension resulted from "apparent confusion," and that his suspension was not "justified" and "he is entitled to be paid for the period of suspension." But when Polk asked, both at the moment of suspension and when appearing before the company officials, what evidence there was against him, the written statement that the Respondent now says it then had only to learn later it was false, was not shown the employee with 36 years' service with the Company. In the light of the total evidence of anti-Textile Workers animus in this case, it will not do to attempt at this late stage to remove from consideration one of the clearest instances of unlaw- ful discrimination. Weiss said he did solicit for the Textile Workers, but only on his own "break" or "smoke." He admitted solicit- ing one Mensch, among others, in this fashion. Mensch testified and insisted Weiss and Kenneth Martz ap- proached him four or five times, very persistent in their requests that he sign. Mensch said he yielded only to get rid of them. It is entirely possible Weiss, as well as Martz, may have spoken to Mensch, and perhaps others, even while not in fact away from his machine for a smoke, or just a break. People talked everywhere about everything. But there is more in Mensch's testimony that reflects upon the story of the personnel manager on the question of real motivation. Bason testified that when Foreman Slusser telephoned him about 1:30 p.m. on June 6, with Polk, Weiss, and Martz sitting in the foreman's office and protesting the sudden and unannounced suspensions, he, Bason, knew nothing about the action that had been taken or the decision to suspend these men. As he continued in his role as principal witness to the "just cause" defense against the complaint, Bason admitted directly he decided to suspend these three men the day after receiving infor- mation that they had been soliciting. He said four em- ployees had come to him "the week before" and given certain statements, and he named Billy Mensch and Charles Stout among the informants. If only on the basis of Bason's statement that he knew of the solicitation a week before June 6 and that the decision to suspend fol- lowed immediately, coupled with pretense of not knowing anything about the decision to take disciplinary action, his credibility suffers. Mensch's testimony, read together with Bason's asser- tions, serves all the more to weaken the affirmative defense. Mensch said Weiss and Martz pestered him to sign "in and-around that time," meaning when the two elections were held, on April I I and 17, one by the Tex- tile Workers and one by the Alliance. Mensch also detailed how, before finally yielding, he took a blank card given him by Martz to Buzz Segers, an employee "over in experimental and patter," a block away from Mensch's post, during worktime, and told Segers to bring the card to "the front office to let them know what's going on." Mensch did sign, and, as he continued to relate, "two or three weeks later" he wanted the card back and went to Bason for help. Bason asked him where he had signed this card, and who had given it to him. Mensch told all. But this could not have been later than the first week in May; the suspensions came on June 6. Mensch was not criticized for his own talk with others during his working time; he was not criticized for having signed his own card during working time; it must therefore be presumed this was one of the occasions when an employee gave one of the four affidavits Bason testified about at the hearing. Charles Stout said that on April 26 Martz also solicited him to sign a card, and that while he, Stout, was on a smoke break, Martz was not at the moment. Without specifying when, Stout later asked Foreman Slusser,his superintendent, if he could retrieve his card. Slusser took him to Bason's office where the personnel director asked Stout to sign a "statement saying I wanted my card back." As the talk continued, "they [Bason and Levan] asked me who gave me the card to sign. I said Kenny did." Here the emphasis was on the who, not on the where and the when. Nobody criticized Stout for having signed a card while Martz was on company time, if that were the case. Apparently Stout's earlier cooperation with Kenny on the subject of the Textile Workers could be overlooked, now that he had joined the ranks of the in- side unioneers. MAGEE CARPET COMPANY 47 Long did solicit in favor of the merger group before the clock struck; three employees testified he asked them to sign cards, or a petition supporting the CIO. Apart from general conclusionary statements that this was on "work- ing time," for the most part the definitive testimony placed it at a few minutes, or perhaps 10 minutes or so, before quitting time. Dean Webster said he was ap- proached several times between 6.45 and 6:55; his start- ing time was 7 a m., the same moment Long's shift ended. At one point Webster placed the solicitation at 6:47 Fred Rubenstein, also a 7 a.m. starting man, said that Long more than once solicited him about 6.50 a.m. Both Webster and Rubenstein placed these activities of Long back in April, and each said they immediately notified their superiors. Webster: "I told my foreman ... each day Mr. Long was there I told him." Rubenstein. "I cer- tainly did ... right after he asked me to sign the card ... maybe 5 minutes or so. I walked in our office." Ruben- stein's testimony also leaves no doubt that the Company was searching for the identity of CIO solicitors. The wit- ness said he signed a statement about this in May. "I was taken down" to Bason's office, by "my superintendent, Mr. Kessler." Rubenstein then added "I think he [Bason] informed Mr. Frank Kessler to have me come down there." Howard Long worked from 3 p.m. to II p.m. when Charles Long started his shift. This man recalled how "in the spring" Long talked to him about signing up "during my working time " Pressed to be more exact the witness then said it was always about 10 minutes before his shift ended, "you can't clock out more than 15 minutes early," "I stop work about 5 minutes early, everybody lines up." Against this Charles Long himself admitted he solicited people while they were in line to check out, and that otherwise he did it on his own time. This is one of the de- partments where people eat at their machines and decide for themselves what time is breaktime. Therefore, when Howard Long said he was approached on "working time," his story is necessarily ambiguous. In any event, 2 weeks later this man too ended up in the office of the personnel director. He spoke to employee Jack Beagle, "one of the union [old Alliance] guys," for help to get his card back, and "he helped me get it back from Leonard Bason and Bob Levan." In Bason's office, Levan asked who had given Long the card, "and then I signed a paper that said I signed one and tried to get it back. He [Levan] would try and help me get it back." I find that Charles Polk, Joseph Weiss, and Charles Long were suspended from work in furtherance of the Respondent's intent to curb their activities, and the ac- tivities of others of its employees, in support of the Tex- tile Workers, and therefore separate violations of Section 8(a)(3) of the Act. I also find that the suspension and eventual discharge of Kenneth Martz, effective as of June 6, 1966, was for the same reason a violation of Section 8(a)(3). In the case of Martz, as will also appear with respect to other employees named in the complaint, the Respondent advanced additional reasons, for the first time at the hearing, or in its brief, as proper grounds for discharge. Martz quarreled with Foreman Miller for hav- ing called him a "loggerhead," and even said if the foreman continued this sort of talking Martz would "meet him outside." Miller had in fact spoken of Martz thusly while discussing the CIO campaign with a number of his subordinates and casting aspersion on the entire program. Was it the severity of Martz' resentment against personal offense that the Company faulted, or was it his independ- ent spirit to pursue the CIO campaign in the face of the foreman's contempt? On this record, it must have been the latter, else Bason would surely have mentioned the so-called threat at the moment of suspension. Instead he spoke only of solicitation, repeated the phrase on a writ- ten notice or form a few days later, and finally, when, after 2 months, he converted a 90-day suspension into outright discharge, still did not give any threat as a reason for the action. 2. June Bucher and Lorraine Bredbenner These two women were twisters under Assistant Su- perintendent Kessler; he sent both home on June 17, again without advance notice, without giving them the satisfaction of knowing what evidence there was of wrongdoing, and without opportunity to explain, or per- haps apologize. To each woman, at the moment of release, Kessler said, "For soliciting during working hours." To Bucher, Kessler said , "I'm going to have to leave you go for awhile " Kessler's testimony is that all he told Bredbenner was "I'm sending you home," with no in- dication that her release was anything short of a final separation from employment. Both women were per- mitted to return to work on July 18. In the case of these two women the testimony in defense is that Kessler, acting entirely on his own authori- ty, made the decision to discipline them, carried it out, and did so because of their solicitation activities. In part because of the inherent implausibility of much of what he said, and in part on the ground of his very meaningful demeanor on the witness stand, I do not believe him. Kessler has worked 30 years in this department, a super- visor the past 10 years. Bucher, 7-1/2 years with the Company, is his sister-in-law. Bredbenner has worked with, and later under, Kessler for 23 years. Her husband, too, in an adjoining department, has been as long an em- ployee of the Respondent. Kessler said this was the first reprimand he ever gave Bredbenner (neither woman had ever before received any reprimand notice whatever), he had issued reprimand notices before but never sent any- one home because of them, he had never sent home an employee as a disciplinary measure for any reason at all, and it is not customary for an assistant superintendent to send employees home. In the face of all this, Kessler held firm to his story that he alone decided to do this, that he told no one in the personnel office in advance of his deci- sion, and that no other management representative had spoken to him before the events on the subject at all Had Kessler in truth arrogated to himself the prerogative of making decisions of this kind without regard to the policy of the front office, he would have acted contrary to the order of the day as revealed by the Company' s witnesses who testified about the union talk carried on by the two ladies in question. Florence Eves said that Bredbenner one day asked her to sign a CIO card while the two were at work , and also solicited her "during hours" after the April election. This is one of those departments where employees take their own breaks-"I go get my coffee and eat while my ends are running," and where, still according to Eves, "we talk, but not about the CIO." Eves said Bruce Henrie, the de- partment supervisor, knew Bredbenner had solicited her. As to Bucher, fair appraisal of her testimony shows that to some extent, at least, she spoke to others on the subject not only during whatever break period the employee chose to take, but also when they were simultaneously at work. But on the question of motivation, the testimony of Lillian Foust, who said that she was solicited by Bucher, 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD runs counter to Kessler's professed independence of any concern in the matter by others in management of person- nel. Foust testified that as soon as Bucher gave her a card she went to Foreman Henrie and "I said we were in- formed that we were supposed to tell when we get a card. So, I said, `I got a card from June Bucher and here it is.' And he said, `All right, what are you going to do with it ' I said, `I am going to return it,' he said, `All right. We are supposed to let Leonard Bason know.' So he told Frank Kessler." Later, still from Foust's testimony: "The word got around the floor and everybody said if we were ap- proached by the CIO we were supposed to tell Frankie [Kessler] right away." With this the message from the front office as understood by the Company's own wit- nesses, Kessler's insistence that the personnel director did not know what he was doing must fail; he even had the reprimand notice written before calling Bredbenner to his office. She resented being sent home so summarily, denied having done anything wrong, and demanded to see Bason personally. She apparently stormed into the per- sonnel office, picking up her husband on the way Bason answered her protest by saying she was not "fired," but only "suspended ... for soliciting during working hours we have written statements that you have been." There can be no question but that the employees were told by company officials to keep a sharp eye for anyone distributing Textile Workers cards, and to report any such attempt quickly to the personnel department. This is what happened in the case of these two ladies, Bason had these reports before any reprimand action was taken, and he knew exactly what Kessler was supposed to tell Bredbenner- suspension, not outright discharge . Kessler lied on the witness stand. I find that by suspending June Bucher and Lorraine Bredbenner from work on June 17, 1966, the Respondent violated Section 8(a)(3) of the Act.10 3. Wayne Martz This is the brother of Kenneth Martz, the man who was first suspended for solicitation and then, at the Company- Alliance conference of June 23, given a 90-day suspen- sion. On June 17, Wayne agreed to work 1 hour beyond his 3 p.m. quitting time to cover an employee whose post required attention unexpectedly. He arranged by telephone for his wife to leave his auto near the plant so he could travel home at the unusual hour, and left the plant a few minutes to obtain the auto keys where it was parked. He left the building without clearing with a super- visor, Bason saw him from an office window, and in a matter of minutes gave him a written reprimand notice for leaving the premises without permission. Martz asked Bason could he attend the June 23 meet- ing where his brother's indefinite suspension was going to be considered, and the personnel director said no, because Martz was not an Alliance committeeman On the day of the "grievance meeting," Arthur Hauk, Martz' foreman, gave him a layoff slip and told him he could not return to work until July 18, "for leaving the mill last week." Later the same day he did appear at the "' In its brief the Respondent contends that Bredbenner's suspension was based not only upon her solicitation activities but also upon a number of circumstances These are given as the fact she left Kessler's office without permission after he had told her to go home, and asked her husband to accompany her to the personnel director's office There was conference, and was called into the room. There, as he testified, Katerman, the mill superintendent, said "do you know the story about a barrel of apples; he said a few will spoil the whole barrel and we're going to pick out the few." The next day- Friday, June 24- Bason telephoned Martz at home and returned him to work. Wayne Martz lost only I day's pay. Katerman denied having made the statement about the few bad apples spoiling an entire barrel; Bason and Levan, who were both present, testified they did not hear the statement. Asked why, with the incident of Martz leaving the plant a few minutes for his car key once set- tled with a reprimand notice, he a week later decided to impose a suspension as a further discipline for the same offense, Bason said' As I recall we all know things were in a state of con- fusion down there about that time. I wanted to be sure that the grounds I was standing on was steady, because of the situation for which we are here for now. The unfair labor practices. I did discuss it with the -the following Wednesday, with the union board, the TWA Alliance Executive Board at our weekly meeting on Wednesday. I credit the employee. No charge against the Respond- ent was filed with the Board before August 8, 1966. Picking the few apples which proverbially spoil the barrel is precisely what the Respondent's managers, in coopera- tion with the Alliance officers opposed to affiliation with an outside union, were doing at that moment. This is when Polk, Weiss, and Kenneth Martz were appearing before the joint conference. Wayne Martz was also a known member of the merger committee, and he had at- tempted to come to his brother's aid. All this, coupled with the absence of any real reason for reconsidering what to do about the man's brief and understandable absence from the plant a week earlier, and all the other evidence of animus against the union cause with which Wayne Martz was associated, fully warrant the conclu- sion, which I make, that the Respondent imposed a I -day suspension on him as part of its pervasive attempt to stifle the merger committee, and thereby violated Section 8(a)(3) of the Act. 4. Derl Henrie This man operates a high speed spinner; the machine is of a type that runs by itself and normally can be left unat- tended for short periods at a time. Moreover, this is one of the departments where employees choose their own break periods for this very reason; the operation never ceases. Henrie has worked for the Respondent 30 years; he was first an official of the old Alliance and then a known member of the Textile Workers Merger Commit- tee. In all his years of service he was never reprimanded until September 1, 1966, the day after he left his machine for about 5 minutes to speak to his brother, Foreman Bruce Henrie, about a personal matter on the floor below. While he was downstairs he also spoke for a few minutes to some of the girls. In some fashion the fact that he spoke to others in an area of his department away from his own no criticism of her for these things at the time Instead, in Bason's office, Levan, the assistant, found occasion to ask her-and in the total circum- stances I do not credit his denial- whether she favored "an outside union " I deem these belated defenses too frivolous to merit further com- ment MAGEE CARPET COMPANY 49 machine came to the attention of management, and Kessler, assistant superintendent of the department, gave Henrie a written reprimand notice for being "out of work area", the employee protested he had done no more than speak to his brother. Later, incensed at what he con- sidered unjust informing about himself, Henrie went to the office and demanded that Rose Cotner, a girl in Kessler's office, tell him who had reported him He was angry, and asked "who the God Damn squealers were " Cotner said she would not tell him, and Henrie went on with "he would turn me over to the CIO and the National Labor Relations Board and they would force me to talk. . He went over to the door and he stood there and he shook his finger at me and said, `I am giving you one more chance. Remember you are not fooling with the damn car- pet company now, you are fooling with the United States Government. Either you talk or I am turning you in. We have a meeting tonight with the CIO and the National Labor Relations Board."' Kessler was sitting in his office when this happened, and both he and Cotner testified he said not a word. Later in the day, Kessler gave Henrie a second reprimand slip and suspended him from work. This notice read: "Threatening another employee in the department office, and using improper language." He asked Kessler at that moment "how do you get threatening out of this," and Kessler answered, according to Henrie's uncontradicted testimony, "didn't you threaten Rose to report to the Labor Relations Board " Henrie's suspension was con- tinued to September 16. In defense at the hearing Kessler testified he suspended Henrie "because he was in the office and swearing and threatening the office girl." As in the case of Bucher and Bredbenner, Kessler again said flatly he himself wrote out the reprimand slip and that this was done on his own authority. I do not believe Kessler suspended Derl Henrie for the reasons he gave at the hearing, or that he acted on his own and not under instructions from higher officers of the Respondent He testified the girl did no more than refuse to answer Henrie. She testified, instead, that when Hen- ne left she asked Kessler could she call personnel and re- port this, and that he said yes. She also said that she thought the reprimand slip was made out in the personnel office. Kessler tried to create the impression at the hear- ing that Henrie's language offended him, and was out of keeping with the social decorum of his office. And then, asked was any off-color language used in his office, he added: "I might say `s-t' or something like this. That is about it." Besides all this, it is too late in the development of the law of labor relations in America to look upon an attempted resort to a union , or to the National Labor Relations Board, as a threat justifying discharge or suspension of an employee. Henrie had turned against the old Alliance; he joined the merger committee without fear; he represented a danger to the Company's anti-Tex- tile Workers policy. It was not the truncated idea of "threat" in his words to Cotner that annoyed Kessler, or whoever of his superiors it was that prepared the repri- mand slip and decided the matter. It was the fact he had been talking to the "girls" downstairs, that he flaunted his adherence to the "CIO," and that he intended to avail himself of lawful procedures to protect his right to choose his own union, that motivated the suspension. The picture fits the pattern of the other unlawful discriminations too closely to be overlooked on this record. I find that by suspending Derl Henrie from employment on September 1, 1966, the Respondent violated Section 8(a)(3) of the Act 5. Clyde Bowman and Warren Stellfox The last two employees listed in the complaint as hav- ing suffered illegal discrimination are Clyde Bowman, first suspended and then discharged, and Warren Stellfox, suspended from work for about 1 month They were members of the merger committee, but there is no defini- tive proof that they engaged in solicitation activities on behalf of the Textile Workers either while at work or not, anywhere in the plant. Unlike the disciplinary action taken against the others , the reasons given to these two men, oral or on reprimand slips, had nothing to do with solicitation or any other company policy. Stellfox's difficulties started when, on June 2, Joseph Dunkelberger , his supervisor , told him he [Stellfox] had been reported as being present at a meeting of supervisors where he did not belong. Stellfox laughed and said he had not been there . In a matter of minutes Dunkelberger returned and admitted he had been in error . At this point, to quote Stellfox: "Well I sort of, you might classify it as clown around a little bit.... I took a piece of wastepaper that was at the other end of the machine and I made a dunce hat out of it and I walked up alongside the table, which again was not in operation, and I put my finger in my mouth and said, `I'm a bad little boy, I've been out of the department'; and I kept clowning around ; I went back to the lower end of the table and I sat on a chair that we have down there and put it on my head like a dunce or I'd take it off and whistle through it or hum through it. But this was not during my production. When something would come down the table, I would stop." Stellfox said he did this a number of times that day, "Maybe 5 or 6 minutes at a time." This was on Thursday. The following Monday, June 6, he was called to the office , given a repri- mand slip, and suspended until further notice. The repri- mand slip read "distracting working people during work- ing hours," and the superintendent told him "we don't like your attitude or actions." He returned to work on July 18, at the end of the vacation period, for which he was paid. Stellfox is a rolling machine operator ; his is part of a large machine over which extensive carpeting passes and is cut into pieces with large knives. Sometimes part of the machine is idle while other portions operate. That care- less inattention to work here, regardless of whether a por- tion of the machine stands idle or not , creates a serious danger to the workmen, was shown clearly on the record. Stellfox virtually boasted of his clowning activities in the department. "Well I'm just the type of guy that 's full of the devil once in a while; so I just put the dunce cap on and I put my finger in my mouth and said I've been a bad little boy; my superintendent checks me to see if I'm in or out of my department. And that was to the crew that was at the table .... it wasn't during out break period, no." Bowman was a spinning machine operator , working normally from 1 I p .m. to 7 a.m. On June 21 he started at 7 p.m., instead, to do 4 extra hours. As he recalled, about I a.m. he was given a reprimand slip "for being away from his machine," or ,out of his department ." He had left his machine in operation , not an unusual thing in this department, to go to the fountain for a drink ; he admitted that when he returned Laubach , the superintendent, pointed to a down end on his spinner. At first Bowman 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refused to accept the reprimand notice, because Creasy, the lower foreman who attempted to hand it to him, had not himself seen him leave his machine ; Bowman insisted Laubach had to put the slip in his hand. He then asked Creasy where, if not to the fountain, should he go for his break and Creasy answered : " I don't give a damn where you go then , but just don't leave your machine and talk to anybody."" At this point Bowman, like Stellfox, went into his act. "So after that when I left the machine , I whistled and raised my hand to those who spoke to me.... I did the same thing when I went to the drinking fountain or to the restroom.... When anybody would come down the aisle and call because of his order not to speak to them, I'd just raise my hand and whistled right on around the machine. ... I walked like a puppet ... stiff legged ... with my left hand extended in the air and my legs walking stiff legged. ... I was responding as a puppet." Bowman acted in this way from the moment of his first reprimand , at I a.m., as he said , to 7 a.m., when he went home , and resumed the show at 1 1 p.m ., at the start of his next shift. An hour after his arrival Laubach attempted to give him a second reprimand, reading, according to Bow- man "for raising my hand whenever I see him ," according to Laubach "for insubordination." Again Bowman refused to accept the paper because , as he testified, " I felt that the reason stated on there was very foolish." Now Laubach ordered him to shut his machine and accept the reprimand , and still Bowman refused to do either . Finally the superintendent told him to obey on pain of a third reprimand and dismissal . With Bowman still refusing, Laubach wrote a third slip, this one for refusing to accept the first two, again ordered Bowman to shut his machine, and now ordered him out of the plant. In the end Laubach shut the machine and Bowman left. The next day, June 23, at the so-called grievance meet- ing of the Company with the old Alliance group , Bowman appeared and told his story. Management said it would consider the matter , and that night Personnel Director Bason telephoned Bowman to say he was suspended for 90 days "unless I want to come in and talk it over, and I said, no , thank you , not at this time ." On August 5 Bow- man was advised by letter that he was discharged. Essentially the General Counsel 's theory of illegality in the case of both Stellfox and Bowman is bottomed upon the clear fact that the Respondent was carrying on a determined campaign to curb the activities of the merger committee and of the Textile Workers even to the extent of resorting to illegal conduct . These men were on the merger committee and the Company knew it. In the case of Stellfox his participation in the Textile Workers campaign had only a day or two before his suspension been highlighted when Assistant Superintendent Ruel Hartman learned that Stellfox was the man who might have possession of the union cards of Mrs. Walters and Mrs. Woolever. There is no substantial evidence, how- ever, apart from what might be inferred from the general attitude of the Company, indicating an intent to hit at Stellfox because of his individual activities. As to Bowman , the General Counsel relies primarily upon the fact that when giving the man the second repri- mand - for insubordination - Superintendent Laubach found occasion to refer to Bowman's behavior a few days earlier when Company President Law gave a speech to the employees on the question of unionism. On the precise recollection of the two men as to what Laubach said that night , I find the superintendent's version the more reliable of the two. According to Bowman, Laubach said, as he was handing the reprimand slip to the em- ployee : "I heard how you belittled Mr. Law's speech last week.... I didn't think your mind was so small but now that I understand it, I'm going to give you another repri- mand...." Laubach testified as follows: "When I took it [the reprimand notice ] out to give it to Clyde I told Clyde all these years I have known you and I said that I had heard that he belittled a gentleman like Mr. Law when he was making his speech . I was really surprised when I heard it. I could hardly believe it. I told him at that time I could understand now that he would do it and in my personal opinion I said , `You act like a boy 8 or 9 years old.' So then he said he would not accept the repri- mand." I am satisfied that when Laubach decided to give a second reprimand to Bowman that night it was because of Bowman's repeated derision of the supervisor , and not because of anything he may have done when Law was giving his speech . Suspicion apart , I cannot find that there is sufficient probative evidence, upon the record in its en- tirety, to support the complaint allegations with respect to Stellfox and Bowman . I shall therefore recommend dismissal of the complaint as to them. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III , above, occurring in connection with the operations of the Respondent 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 Respondent has engaged in un- fair labor practices, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Respondent having unlawfully suspended from em- ployment a number of employees and discharged another, it must be ordered to reinstate Kenneth Martz to his former employment and to make whole both him and the other employees illegally suspended , for any loss of earnings they may have suffered in consequence of the il- legal discrimination against them . Backpay shall be based upon the earnings which the terminated or suspended em- ployees would normally have received during the applica- ble period, less any net interim earnings, and shall be computed on a quarterly basis in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest thereon , Isis Plumbing & Heating Co., 138 NLRB 716. There is an ambiguity in Bowman 's testimony as to whether it was Creasy or Laubach who made this statement In the light of the case as a whole this is not a very significant matter MAGEE CARPET COMPANY 51 The extent of the Respondent's past unfair labor prac- tices justify and require an all inclusive injunctive order that it not hereafter violate the statute in any other manner. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the Union is a labor organization , all within the meaning of the Act. 2. By discriminating in regard to the hiring and tenure of employment of Kenneth Martz, Charles Polk, Joseph Weiss, Charles Long, June Bucher , Lorraine Bredbenner, Wayne Martz , and Derl Henrie , the Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. By the foregoing conduct , by threatening all of its employees with harm if they joined or assisted the Textile Workers Union of America , AFL-CIO, by Foreman Hartman 's threat to discharge employees for joining that Union , by Foreman Hartman's offer to pay employees as inducement for withdrawal from the Union of their choice, by Foreman Swisher's statement to employee Budner that if he signed a union card he would be discharged, by Foreman Swisher's interrogation of employees concern- ing their union activities , and by maintaining and enforc- ing a rule against union solicitation on company premises, both during working time and during nonworking time, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2 (6) and (7) of the Act. RECOMMENDED ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended , it is hereby recommended that The Magee Carpet Company, Bloomsburg , Pennsyl- vania, its 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 or- ganization of its employees , by discharging , suspending, or in any other manner discriminating against them in re- gard to their hire or tenure of employment or any terms or conditions of employment. (b) Threatening employees with harm if they joined or assisted the Textile Workers Union of America, AFL-CIO, threatening to discharge employees if they should join that Union , offering to pay employees as in- ducement for withdrawal from that Union , interrogating employees in a coercive manner concerning their union activities , maintaining and enforcing a rule against union solicitation on company premises whether during work- ing time or during nonworking time. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization , to form labor organizations , to bargain collectively through representatives of their own choos- ing, and to engage in any other concerted activity for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, ex- cept as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer Kenneth Martz reinstatement to his former or, substantially equivalent position without prejudice to the rights and privileges enjoyed. (b) Make whole Kenneth Martz, Charles Polk,Joseph Weiss, Charles Long, June Bucher, Lorraine Bredbenner, Wayne Martz, and Derl Henrie for any loss of pay suf- fered by reason of the discrimination against them, in the manner set forth above under the section entitled "The Remedy." (c) Preserve and, upon request, make available to the Bdard or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Notify the above-named employees if presently serving in the Armed Forces of the United States their rights to full reinstatement upon application in ac- cordance with the Selective Service Act and the Univer- sal Military Training and Service Act, as amended, after discharge from the Armed Forces. (e) Post at its plant in Bloomsburg, Pennsylvania, co- pies of the attached notice marked "Appendix."12 Copies of said notice, to be furnished by the Regional Director for Region 4, after being duly signed by the Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 4, in writ- ing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.13 IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges a violation of the statute with respect to the discharge or suspension of Clyde Bowman and Warren Stellfox. 12 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 entorced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " " 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 4, 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 Ex- aminer of the National Labor Relations Board and in 336-845 0 - 70 - 5 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD order to effectuate the policies of the National Labor Relations Act , as amended , we hereby notify our em- ployees that. WE WILL NOT discourage membership in the Tex- tile Workers Union of America, AFL-CIO, or in any other labor organization of our employees, by discharging , suspending , or otherwise discriminating against them in regard to their hire or tenure of em- ployment. WE WILL NOT threaten our employees generally with harm if they join or assist the Textile Workers Union of America , AFL-CIO, threaten to discharge employees for joining that Union , offer to pay em- ployees as inducement for withdrawal from member- ship in that Union , tell our employees that if they sign union cards they will be discharged , interrogate our employees in a coercive manner concerning their union activities, or maintain and enforce a rule against union solicitation on company premises, both during working time and during nonworking time. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of the right to self-organization , to form labor organiza- tions, 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 pur- pose of collective bargaining or other mutual aid or protection , as guaranteed in Section 7 of the Act, or to refrain from any and all such activities, except as authorized in Section 8(a)(3) of the Act. WE WILL offer Kenneth Martz reinstatement to his former or equivalent position, without prejudice to his rights and privileges previously enjoyed. WE WILL make whole the following employees for any loss of pay suffered by reason of the discrimina- tion against them, in the manner set forth in the sec- tion entitled "The Remedy": Kenneth Martz, Charles Polk, Joseph Weiss, Charles Long, June Bucher, Lorraine Bredbenner, Wayne Martz, and Derl Henrie WE WILL notify the above- named employees if presently serving in the Armed Forces of the United States of their rights to full reinstatement upon appli- cation in accordance with the Selective Service Act, and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces All our employees are free to become members of, or to refrain from becoming members of any labor organiza- tion Dated By THE MAGEE CARPET COMPANY (Employer) (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1700 Bankers Securities Building , Walnut & Juniper Streets, Philadel- phia, Pennsylvania 19107, Telephone 597-7601.