Cone Mills Corp.

CONE MILLS CORPORATION Cone Mills Corporation and Textile Workers Union of America , AFL-CIO. Cases 11-CA-3242 and I1-CA-3262 November 2, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On August 2, 1967, Trial Examiner Sidney Sher- man issued his Decision in the above-entitled case, finding that the Respondent had not engaged in any unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, the General Coun- sel filed exceptions to the Decision and a support- ing brief. The Respondent filed an answering brief. 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. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION SIDNEY SHERMAN , Trial Examiner: The instant charges were served on Respondent on February 16 and March 10, 1967.' The consolidated complaint issued on April 26, and the case was heard on June 19. The only matter litigated was alleged discrimination against Slate. Briefs were filed after the hearing. Upon the entire record,2 including my observation of the witnesses, I adopt the following findings. 1. THE RESPONDENT Cone Mills Corporation, herein called Respondent, is a corporation engaged in the processing , printing, and All dates herein refer to 1967, unless otherwise stated 2 Typographical errors in the transcript are hereby ordered corrected as follows P 55, 1 2-"had had" should read "had heard", p 59, I 20-change "mulley" to "mother " 'Although the complaint alleged numerous other violations, no evidence was offered in support thereof. 69 finishing of textile products at its several plants in the State of North Carolina, including its White Oak plant, which is the only one here involved. Respondent annually receives from out-of-State points materials valued in ex- cess of $100 ,000. It is engaged in commerce under the Act. It. THE UNION Textile Workers Union of America, AFL-CIO, herein called the Union, is a labor organization under the Act. III. THE UNFAIR LABOR PRACTICES The only issue litigated at the hearing was whether Slate's 3-day suspension from work violated Section 8(a)(3) and (1) of the Act." A. Sequence of Events Slate, who had been in Respondent's employ for 26 years, had been a shop steward for the Union, a member of its negotiating committee, and the author of several items in union publications, one of which, appearing on January 30, 1967, appealed to workers not to cross picket lines in case of a strike. When, on February 5, the Union did call a strike, Slate acted as a picket captain. The strike ended on February 9, and Slate returned to work the next day. On February 11, while in the plant washroom, he made an opprobrious comment in the presence of another employee, Chandler, about the fact that he had worked double shifts during the strike. The exact nature of the comment is disputed, but it is agreed that it included the thought that one who would do such a thing should have "died" or "dropped dead." Chandler's father, also an em- ployee of Respondent, was informed of this incident and complained to management about it early in the morning of the 12th. After questioning the younger Chandler, and obtaining his version, Respondent suspended Slate for 3 days, and, when he returned to work, issued a warning notice to him for "intimidating a fellow employee while on company premises." Rule 4 of Respondent's plant rules provides for immediate suspension or discharge for the following conduct- Abuse of Fellow Employees Threatening, coercing, intimidating or interfering with fellow-employees while on company premises. B. Discussion While the matter was not fully developed at the hear- ing, it appears that at the time of the foregoing incident the Union was recognized by, and bargaining with, Respondent, and that since 1952, Respondent has had contractual relations with the Union for all of its seven plants, including the one here involved;" and, the General Counsel did not offer any substantial evidence of union " See references to such bargaining in G C Exh 2, and Resp. Exh. 2. See also the Trial Examiner's Decision in Cone Mills Corporation, Cases 11-CA-3036 and 11-CA-3038, issued July 12, 1967 [169 NLRB No 59], which appears to be the only other unfair labor practice pro- ceeding against Respondent 168 NLRB No. 14 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD animus, in general, or of any animus toward Slate, in par- ticular. As to the circumstances leading up to his suspension, Slate testified that during the morning of February 10, he entered the plant washroom and saw Chandler there with another employee, Blackman, who remarked to Slate that Chandler had worked "20 hours straight" during the recent strike, eliciting from the witness the comment that, if Chandler worked 20 hours straight during the strike, he ought to drop dead. Blackman fully corroborated this ver- sion. Chandler's version differed radically in that, for one thing, he denied that Blackman was even present. Ac- cording to Chandler, the only third person in the room was Smith, and Slate's remarks were elicited by an inquiry by Smith of Slate as to when there would be another strike. Chandler testified that Slate rejoined, "We might go on a strike next week. And right there is a damn s-o-b- m-f-r come in here and work 20 hours a day. Chandler added that, when he observed at this point that he had not worked on February 9 because his "brother's little baby died. 116 Slate remarked "You ought to have died, too." While admitting that Chandler made some reference to the fact that he had not worked on the 9th because he had to attend a funeral, Slate denied that he made any comment on that fact. Smith acknowledged that he had been in the washroom on the occasion in question, but insisted that he did not pay any attention to any con- versation that went on and did not hear anything that might have been said by Slate or Chandler, nor could he say whether Blackman was present at the time. The elder Chandler testified that, having learned of the incident on February 10, he reported early the next morning to one of Slate's supervisors, Turner, that Slate had called his son a "m-f-g, skinny s-o-b." Turner sub- stantially confirmed that he had received such a report from the father, and that, when he questioned the son about the matter, he attributed to Slate substantially the same epithets and comments as were related in the foregoing testimony by young Chandler. Turner there- upon notified Slate that he was suspended pending further notice. Any attempt to resolve the foregoing conflicting testimony encounters vexing problems. As Blackman was not a union member and had, himself, worked behind the picket line during the strike, he would seem to have no ulterior motive for testifying falsely in support of Slate. On the other hand, no reason appears why young Chan- dler would falsely attribute to Slate such lurid epithets as are here involved. He was a reserved, diffident individual, and, apart from anything else, the malicious fabrication of obscenities seemed out of keeping with his character. Yet, if as young Chandler testified, Slate's offensive re- mark was addressed to Smith in response to his inquiring about the timing of the next strike, it is not understand- able why Smith insisted that he paid no attention to, and did not hear, any remarks that might have been made by Slate or Chandler. Fortunately, under the view that I take of the matter, it is not necessary to decide which, if any, of the foregoing witnesses was guilty of perjury, for, even if one credits Slate's version, I am not satisfied that a violation of the Act has been proved. The General Counsel seems to rely essentially on two alternative contentions, which may be characterized as the "mistake theory" and the "pretext theory." The General Counsel's "mistake" theory involves the appli- cation of the rule of Burnup and Simms,' where the court affirmed the Board's finding that an employer violated Section 8(a)(1) of the Act by the discharge of union so- licitors, even though the employer acted on a good faith but mistaken belief that they had used coercive tactics. There the court stated: In sum, Section 8(a)(1) is violated if it is shown that the discharged employee was at the time engaged in a protected activity, that the employer knew it was such, that the basis of the discharge was an alleged act of misconduct in the course of that activity, and that the employee was not, in fact, guilty of that misconduct. For the purpose of the instant contention, it is assumed that Slate was suspended for misconduct connected with a protected concerted activity," and the only issue is whether he was in fact guilty of such misconduct. The General Counsel appears to contend that he was not, because he was suspended for addressing "obscenities" to Chandler, which were not in fact uttered. However, this contention overlooks the fact that the reason for Slate's suspension in his warning notice was not the use of obscene language but "intimidating" a fellow em- ployee, and there is no preponderance of evidence that any lurid epithets uttered by Slate were a factor in his discharge. The General Counsel next contends that, in any case, Slate's admitted "drop dead" remark was not intimidating, pointing out that, although Turner testified that he regarded Slate's remark to Chandler as objec- tionable because it might "scare" him from coming to work, he did in fact report for work on the 1 1 th. How- ever, Turner may well have had in mind that tenor of Slate's remark, rather that its actual effect, and, in any event, whether the remark was or was not properly clas- sified as a breach of the plant rule against intimidation is not controlling here. What is controlling is that Slate did, in effect, express a wish for the death of a fellow employee, and there is no preponderance of evidences that he was suspended for obscenities allegedly uttered at the same time rather than for the expression of such wish. The General Counsel's alternative, "pretext" conten- tion appears to be that, even if Slate made the remarks at- tributed to him, with or without the various lurid epithets, the true reason for his suspension was not such miscon- duct but his prominence as a union adherent. As already noted, Slate had served the Union in various capacities and had been a picket captain during the recent strike. It is apparently the General Counsel's view that, when the washroom incident was reported by Chandler, Respond- 5 All the elisions are mine 6 It is not clear from Chandler's testimony what prompted him to men- tion this. However , Slate's testimony suggests that it might have been prompted by a comment by Blackman that Chandler was so fatigued by his long hours of work during the stoke that he had to stay home and rest on the 9th 7 N.L R B. v. Burnup and Simms, Inc., 379 U.S 21 9 The General Counsel's view is that Slate was engaged in a protected concerted activity in expressing his disapproval of Chandler's strikebreak- ing activity 9 Under the rule of Burnup and Simms, supra, the General Counsel has the burden of proving that the employee was not in fact guilty of the misconduct for which he was disciplined. See Rubin Bros Footwear, Inc, 99 NLRB 610. CONE MILLS CORPORATION ent saw an opportunity to visit reprisal upon Slate for his union activity, under the guise of disciplinary action for violating a plant rule. The General Counsel cites certain evidence indicating that Respondent failed to conduct any investigation of the incident before suspending Slate, although he requested such an investigation. However, it is clear that Respondent did investigate the matter during his suspension,10 and Turner testified, in effect, without contradiction, that it is Respondent's usual practice, when some breach of a plant rule is reported, summarily to suspend the employee or employees involved pending investigation. Moreover, there is no other evidence that Respondent's action toward Slate involved any disparate treatment," and the circumstances next discussed are dif- ficult to reconcile with the General Counsel's "pretext" contention: (1) Although, under the terms of the plant rule deemed to have been violated by him, Slate might have been discharged, he was given only a 3-day suspension. Such restraint on the part of Respondent is not characteristic of an employer who is seeking a pretext for discrimina- tion. (2) According to Slate's own testimony, when he was recalled by Respondent on February 15, he rejected Respondent's request that he sign the warning notice is- sued to him, and, when he indicated reluctance to return 10 Turner interviewed Smith, who professed not to have heard Slate's remarks, and Blackman admitted that Supervisor Fuller questioned him about the incident during Slate 's suspension. 71 to work because of apprehension that he might again be disciplined on the basis of an unverified complaint by another employee, Honeycutt, one of Respondent's higher echelon supervisors, assured him that this would not be the case, and countered Slate's reiteration of the same theme with repeated assurances that any future complaint against him would be promptly investigated, and with urgent requests that he return to work. Had Respondent borne him any ill will because of his union activities, it would have been a simple matter for it to seize upon his chip-on-the-shoulder attitude, particularly his refusal to sign the warning notice, as a pretext for further suspension or discharge, or to construe his ap- parent reluctance to return to work as a resignation of his job. Instead, as is clear from Slate's own account, far from resenting his attitude, Respondent made strenuous efforts to appease him and to overcome his objection to returning to work. Under all the foregoing circumstances, I do not deem it to have been proved that Slate's suspension was in reprisal for his prominent role in the Union's activities.12 RECOMMENDED ORDER It is hereby ordered that the complaint herein be dismissed in its entirety. i I Turner testified that he knew of no other instance where an employee had engaged in comparable misconduct 11 Cf Davis Wholesale Co Inc, 165 NLRB 297