Winchester Spinning Corp.

WINCHESTER SPINNING CORP. 411 Winchester Spinning Corp. and United Textile Workers of America, AFL-CIO. Cases 1 1-CA- 3077, 11-CA-3115, 11-CA-3165, and 11-RC- 2395 November 27, 1967 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On June 2, 1967, Trial Examiner Sidney Sher- man 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 further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, Respondent filed excep- tions to the Trial Examiner's Decision and a sup- porting brief, and the General Counsel filed cross- exceptions and a supporting 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, cross- exceptions, briefs, and the entire record in these cases, and hereby adopts the findings,' conclusions,2 and recommendations of the Trial Ex- aminer, with the following modifications: 1. The Trial Examiner found that, "while the matter is not free from doubt," Respondent had not violated Section 8(a)(1) of the Act by striking the names of members of the union committee from a posted list of such members as these persons ceased to be employed by Respondent. Respondent asserts that its purpose was to correct the Union's representation in the posted list that the committee members were employees of Respondent. We do not agree. In view of Respondent's con- temporaneous unfair labor practices, including dis- criminatory discharges, acts of unlawful interroga- tion, unlawful threats, promulgation and main- tenance of an unlawful no-solicitation-no-distribu- tion rule, and the unlawful solicitation of employee resignations from the Union' s organizing commit- tee, we find that Respondent's striking of the names of discharged employees from the posted list of union committee members was calculated to have a coercive effect upon employees and therefore vio- lated Section 8(a)(1) of the Act.3 2. The Trial Examiner found that Respondent's stated reasons for failing to transfer employees Meece and Shook from the dyehouse to the blend- ing department were pretexts and that their union loyalty was the real reason for denying them trans- fers. We do not agree. In finding a violation, the Trial Examiner relied heavily upon the credited testimony of employee Shook. Shook testified that both Shift Supervisor Byas and Plant Manager Moses had indicated to him that transfers were ruled out "on account of the Union." Although we accept the Trial Examiner's credibility resolution, we draw a different inference from Shook's testimony. Apparently, the Tial Ex- aminer attributed a sinister meaning to the phrase "on account of the Union." To him the statement connoted an unlawful design or a discriminatory motive. However, the undisputed testimony of Plant Manager Moses shows that Respondent, seemingly relying on the general advice of counsel and apart from other considerations bearing upon specific transfers, feared the appearance of unlaw- ' The Trial Examiner found and we agree that Respondent violated Section 8 (a)(3) and ( I) of the Act by advancing the date of its economi- cally justified decision to close its dyehouse in the fall to August 1, 1966, in order to nd itself of two known union supporters before the representa- tion election scheduled for August 23 and 24 We agree with this finding although we have not adopted the Trial Examiner 's further finding that Respondent for discriminatory reasons refused to transfer employees Meece and Shook from the dyehouse to the blending department Respondent argues that its July 15 decision to accelerate the closing of the dyehouse to August 1 was based primarily upon a backlog represent- ing only 2 weeks of dyeing work In rejecting Respondent 's economic defense , we also rely upon statistical data which indicates that Respond- ent had nearly as much dye work for its Asheville plant in June, July, and August 1966 as it had in the same months of the previous year. Thus, Resp Exh 6 , a table of pounds dyed at its Asheville plant and at other lo- cations for 1965 and 1966, reveals that the Respondent dyed a total of 66,254 pounds of yarn at Asheville in June, July, and August 1965 and 65,004 pounds during the same penod in 1966 The amount of yarn dyed in these periods during 1965 and 1966 at the Model Dye of Sumter, Respondent's principal commission dyer, is virtually identical Moreover, in the August through November penod of 1966, a time when Respondent claimed it would have experienced greatly reduced dyeing demands at Asheville, Model Dye was given 77,310 pounds of yarn to dye Although Respondent contends that the orders it received in July and August were "repeats" of orders previously handled by Model Dye and , therefore, would not have been processed at Asheville even if the dyehouse there had remained open, we agree with the Trial Examiner that, at the time Respondent decided to close the dyehouse, Respondent could not have anticipated that all the orders received in the last half of July and throughout August would be of the "repeat " variety Such an occurrence would be particularly unlikely in view of the fact that most of the orders received by Respondent up to that time had been processed at Asheville x Since we are adopting the Trial Examiner's recommendation that the election be set aside and a new election held, if the Union has not received a majority of all valid votes cast, including those ballots to which chal- lenges have been overruled , we find it unnecessary to pass upon the General Counsel 's exceptions to the Trial Examiner's failure to find that certain of Respondent's violations of Section 8(a)(1) of the Act con- stituted additional objectionable conduct providing a further basis for setting the election aside In our view any proposed additional findings of objectionable conduct would be merely cumulative 9 Cf J P Stevens and Co, Inc, 157 NLRB 869, 872, enfd as modified 380 F 2d 292 (C A. 2, 1967). 168 NLRB No. 60 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ful discrimination, either against union committee members or nonmembers. Byas, a shift supervisor in blending, merely echoed a concern which had al- ready made the rounds at higher management levels. Our interpretation of these statements is strengthened by the existence and significance of other events which the record reflects with greater clarity. Three regular employees, Shook, Meece, and Moss, worked in the dyehouse with Supervisor Crisp. Both Meece and Shook had worked in the blending department prior to their assignment to the dyehouse. Shook was transferred from the blending department to the dyehouse approximately 1 year before his termination because he had injured his back and could not continue to perform the work expected of him in blending. On two occasions during the week before the dyehouse was to be closed, Supervisor Byas spoke to Plant Manager Moses about the shortage of em- ployees in blending and asked for the addition of two men to the existing department crew. Moses in- formed Byas that the employment of additional men was not possible because the seasonal demand for yarn would shortly taper off. Moreover, interde- partmental transfers of dyehouse employees would not be possible in view of Respondent's practice of following departmental seniority in reducing its work force. Although Respondent awarded overtime to blending department employees in August, this was not the kind of extra work which would warrant augmenting the department's work force. Thus, Moses' uncontradicted testimony reveals that most of the overtime work was work which had to be per- formed by the entire blending department crew on a few Saturdays in August. Apparently, this over- time was not regular or predictable. Rather it was caused by sudden accumulations of dyed yarn from Respondent's dyehouse or from outside commis- sion houses. When the yarn came in it had to be blended as quickly as possible because it was due at the next stage of the yarn producing process, card- ing, on the following Monday. Consequently, Respondent judged that the blending department's overtime problem would not be greatly alleviated by the hiring of additional regular men to do what the entire crew could do in several hours of extra work on Saturday. In any event, the overtime in the blending department lasted only for part of the month of August. By the end of the third week in that month all save two blending employees had been laid off. The last two men were laid off about a week later. Thus, because of the anticipated seasonal decline in Respondent's business , there were no additional positions available in the blending department at the time the dyehouse was closed. Intraplant transfers were also ruled out by virtue of Respondent's ad- herence to departmental seniority as the basis for reducing the work force during periods of layoff. In view of the foregoing, we find that the General Counsel has not proven by a preponderance of the evidence that Respondent unlawfully discriminated against employees Fred Shook and James Meece by refusing to transfer them to the blending depart- ment when their employment in the dyehouse was terminated. Accordingly, we shall dismiss that al- legation of the complaint which alleges such refusal as a violation of the Act. AMENDED CONCLUSIONS OF LAW 1. Add the following to the Trial Examiner's first Conclusion of Law: "1. By striking the names of discharged em- ployees from the posted list of union committee members, Respondent has violated Section 8(a)(1) of the Act." 2. Delete the Trial Examiner's second Conclu- sion of Law and substitute therefor: "2. By discharging Shook and Meece because they were union adherents and by discharging Rol- lins, Mahaffey, and Wheeler for their union activity, Respondent has violated Section 8(a)(3) and (1) of the Act." 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 as modified below and hereby orders that the Respondent, Winchester Spinning Corp., Asheville, North Carolina, its officers, agents, successors, and as- signs, shall take the action set forth in the Trial Ex- aminer's Recommended Order, as so modified: 1. Add the following paragraph numbered 1(f) to the Trial Examiner's Recommended Order: "(f) Striking the names of discharged employees from the posted list of union committee members." 2. Change paragraph 1(f) of the Trial Examiner's Recommended Order to 1(g). 3. Add the following after the third indented paragraph of the Appendix: WE WILL NOT strike the names of discharged employees from the posted list of union com- mittee members. 4. In paragraph 2(e) of the Trial Examiner's Recommended Order delete "to be furnished" and substitute therefor: "on forms provided." 5. Add the following paragraph numbered 2(d), to the Trial Examiner's Recommended Order, renumbering the following paragraphs in consecu- tive order: "(d) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training WINCHESTER SPINNING CORP. 413 and Service Act, as amended, after discharge from the Armed Forces." IT IS HEREBY FURTHER ORDERED that if, after the Regional Director counts the challenged ballots, the tally shows that the Charging Party has lost the election held herein on August 23 and 24, 1966, said election is hereby set aside and the Regional Director is ordered to conduct a second election in the manner set forth below. pression of surveillance of union activity, soliciting em- ployees to abandon their union activity, striking the names of members of the Union's organizing committee from a posted list of committee members, and the promul- gation and enforcement of no-solicitation and no-distribu- tion rules. 2. Whether Respondent violated Section 8(a)(3) and (1) of the Act by discharging certain employees." A. Sequence of Events [Direction of Second Election 4 omitted from publication.] " An election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 1 1 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director The Regional Director shall make the list available to all parties to the election No ex- tension of time to file this list shall be granted by the Regional Director ex- cept in extraordinary circumstances. Failure to comply with this require- ment shall be grounds for setting aside the election whenever proper ob- jections are riled Excelsior Underwear Inc, 156 N LRB 1236 TRIAL EXAMINER'S DECISION SIDNEY SHERMAN, Trial Examiner: The original charge herein was served on Respondent on July 20, 1966.' The consolidated complaint issued on December 14, and the proceeding was heard on various dates in January and March 1967. The issues litigated related to alleged violations of Section 8(a)(I) and (3) of the Act. After the hearing a brief was filed by Respondent.2 Upon the entire record in this proceeding," including my observation of the witnesses, I adopt the following findings and conclusions. 1. RESPONDENT'S BUSINESS Winchester Spinning Corp., herein called Respondent, is a Connecticut corporation and is engaged in the manu- facture of yarn at its plant in Asheville, North Carolina. Respondent annually receives directly from out-of-State points materials valued in excess of $50,000. Respondent is engaged in commerce under the Act. If. THE LABOR ORGANIZATION United Textile Workers of America, AFL-CIO, hereinafter called the Union, is a labor organization under the Act. III. THE UNFAIR LABOR PRACTICES The pleadings, as amended at the hearing, raise the fol- lowing issues: 1. Whether Respondent violated Section 8(a)(1) of the Act by interrogation, threats of reprisal, creating an im- All dates refer to 1966, unless otherwise stated ' On April 24, 1967, at the request of the Trial Examiner, the General Counsel submitted a memorandum clarifying his position on certain points, and Respondent submitted a reply thereto. On March 20, 1967, the parties submitted a stipulation regarding the settlement of a workman's compensation claim by one of the alleged dis- criminatees, Wheeler, which has been marked as TX Exh. 1, and is hereby ordered incorporated in the record. 3 At the hearing ruling was reserved on Respondent's objection to the admission of G C Exh. 14 That objection is hereby overruled and the ex- Respondent began its operations at Asheville in November 1964. During the period here involved it had about 100 employees. So far as appears from the record, the Union began its campaign to organize Respondent's employees in the latter part of April 1966. During the en- suing months, a number of cards were signed for the Union, and, at a number of meetings held in the plant, Respondent's president, Gaylord, expressed opposition to the Union and urged the employees to repudiate it. On May 2, Respondent posted a notice warning of discharge for excessive absenteeism, and on May 11, a rule was posted forbidding solicitation and distribution of litera- ture. On June 17, Rollins and Mahaffey, both of whom were union adherents, were notified of their discharge for absenteeism. On June 28, the Union requested recogni- tion, and, on July 1, Respondent rejected that request. On the same day, Conner, a union adherent, was discharged allegedly for his inadequacies as a supervisor. On July 5, the Union filed a petition with the Board for an election among Respondent's production and maintenance em- ployees, and on the same day submitted to Respondent a list of names of employees, stating that they were mem- bers of the Union and of its organizing committee. On August 1, Respondent closed its dyehouse, thereby ter- minating three employees, including two of those named in the July 5 letter as members of the union committee - Meece and Shook. On August 16, Wheeler, another such committee member, was discharged, allegedly for in- competence. On August 23 and 24, an election was held upon the Union's petition, and the result was 38 votes for the Union and 39 against, with 8 ballots being challenged, including those cast by Wheeler, Conner, Mahaffey, Meece, and Shook. The Union filed timely objections to the election. On October 11, Ellis, the chairman of the union committee, was discharged, allegedly for absentee- ism. On December 14, the Regional Director issued a re- port on objections and challenges, in which he recom- mended that two challenges be overruled and one sustained, and that ruling on the challenges to the ballots of the five persons named above be reserved pending the outcome of the instant complaint proceeding, wherein all five are alleged to have been discriminatorily discharged. As to the objections to the election, the Regional Director recommended dismissal of some and directed that a hear- ing be held with respect to the rest, and, as such objec- hibit is received in evidence For corrections of the record, see the Trial Examiner's orders of Feburary 28 and May 15 and 26, 1967, and pp 324 to 331 of the transcript " An allegation that Respondent violated Section 8(a)(5) of the Act by refusing to bargain with the Union was withdrawn by the General Counsel at the hearing , the General Counsel having ascertained, after checking Respondent's payroll records, that the Union did not have signed cards from a majority of those on the payroll at the time of the Union's request for recognition 5 All references to "Shook" herein denote Fred Shook, Jr 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions coincided with certain allegations in the complaint, they were ordered consolidated for purposes of hearing with the instant complaint proceeding. B. Discussion 1. The 8(a)(1) issues a. Interrogation Emory-Mahaffey Emory was a shift supervisor in the winding and twist- ing department, and it is admitted that he was a super- visor under the Act. Mahaffey, a winder, testified, without contradiction, and I find, that on April 17 Emory asked her if she was interested in organizing a union in the plant; that she replied that she would do anything in her power to help bring a union in; that Emory remarked that he would let her "know something later"; that on April 21 or 22 Emory told her that, if she was interested, there would be a union meeting on April 23, but warned her that, if "the office" learned of her attending the meeting, she would be discharged; that she attended the meeting and there received a number of cards, which she dis- tributed in the plant; that on April 25 Emory signed a card at her house and asked her for another card to be signed by Emory's wife, a plant employee; that, late in May, Emory told the witness he had been asked by someone in "the office to find out what he could in the winding department"; and that he proceeded to inquire whether she knew anything about union activity in that department or had seen any union cards, to which she rejoined that she did not know what he was talking about. The General Counsel appears to contend that the in- cident of April 17 and that which occurred late in May constituted unlawful interrogation. As to the first in- cident, it is clear that Emory's inquiry about Mahaffey's interest in a union was merely a prelude to soliciting her to engage in union activity and was so regarded by Mahaffey. Accordingly, I find no violation on that occa- sion. The May incident presents a more complex problem. It is plain that both Emory and Mahaffey were acting out a sort of charade. Thus, Emory was going through the motions of carrying out his instructions to investigate the union activity in his department, and Mahaffey played out her part by giving him an answer which both knew was false. However, this sham interrogation had ominous overtones; for Emory thereby disclosed to Mahaffey that higher management was attempting to ascertain the identity of those employees in her department who were active on behalf of the Union, and, against the background of Emory's prior warning to Mahaffey that she would lose her job, if her union activity became known to Respondent, this disclosure to Mahaffey, under the guise of interrogating her, was calculated to coerce and restrain her in the exercise of her right to engage in union activity. Accordingly, it is found that, by the foregoing "interrogation" late in May, Respondent vio- lated Section 8(a)(1) of the Act. Emory-Rollins Rollins, like Mahaffey, worked under Emory. Rollins testified without contradicition, and I find, that early in May Emory asked her what she thought about the Union, to which she replied that she did not know much about it. Rollins had in fact signed a union card and had solicited others to sign cards. As it does not appear that Emory in- dicated to Rollins, as he had to Mahaffey, that he was sympathetic to the Union or that he was acting in any capacity other than as a representative of management, it is found that, by the foregoing interrogation, viewed in the context of the other unfair labor practices found herein, Respondent violated Section 8(a)(1) of the Act. Moses-Shook Conner, an active union adherent, was discharged on July 1. The next day, according to the testimony of Shook, he remarked to Plant Manager Moses, ". . . I see that you got rid of Martin Conner yesterday," whereupon Moses remarked that Conner was working for the Union and not for the interest of Respondent. Shook added that Moses then asked him, "Are you working for the interest of the company," eliciting from Shook the rejoinder, "That's for me to know and you to find out."6 Moses vacillated between categorical denials that there had been any such conversation and assertions that he had no recollection thereof. Shook's account, on the other hand, was forthright and circumstantial , and I was favorably im- pressed by his demeanor. Moreover, while in evaluating his credibility one must give due weight to the fact that he was himself a union adherent and one of the employees alleged in the complaint to have been discriminatorily discharged, there is the countervailing consideration that he showed great reluctance to testify at all, refusing to take the stand at the first session of the hearing, although he was under subpena by the General Counsel, and finally appearing to testify only after a consent order en- forcing the subpena had been entered by a Federal dis- trict court. In view of all the foregoing matters, I credit Shook and find that Moses asked Shook, in effect, whether he was working for Respondent or for the Union. It is further found that, by Moses' foregoing probing into Shook's union sentiments , immediately after he had at- tributed Conner's discharge to his union activity, Re- spondent violated Section 8(a)(1) of the Act. b. Threats By Crisp It is undisputed that on July 10 or 11 Respondent called a meeting of its supervisors, at which their atten- tion was directed to the list of union committee members that had been forwarded by the Union to Respondent on July 5, and that Plant Manager Moses made some re- marks regarding the treatment to be accorded by the su- pervisors to union adherents. Crisp, an admitted supervisor, who was then in charge of the dyehouse, testified that the instruction given to the supervisors on that occasion was that, if they could "discharge or release any one for just cause who had some affiliation with the Union, to do so," and that Moses advised him that two members of his dyehouse crew, Shook and Meece, were on the list of committee mem- 6 At that time Respondent had not yet received the Union's July 5 letter identifying Shook as a member of its committee WINCHESTER SPINNING CORP. bers, and asked Crisp if he knew of the union sentiments of the other dyehouse employee, Moss. Moses, on the other hand, insisted that the substance of his remarks on that occasion was that the supervisors were to treat everybody fairly and "feel free to discharge anybody for just cause."7 He was not questioned about any discussion he may have had with Crisp concerning the union sentiments of his subordinates. Callahan, a su- pervisor, substantially corroborated Moses' version of his instructions to the supervisors." Crisp testified further that, upon returning to the dyehouse from the foregoing meeting, he warned Shook that he might be discharged "not because of union activi- ties" but because of his indifferent work record. Upon being pressed on this point, Crisp acknowledged, "I sup- pose I did tell him that the Company was looking for an excuse to fire him," and that, while he did not tell Shook that this was because of his union activity, he (Crisp) un- derstood, presumably from what had been said at the su- pervisor's meeting, that this was in fact the case. How- ever, under further questioning , Crisp finally avowed that he told Shook "It's possible that they would be look- ing for a reason to fire you with your name on the commit- tee list." Shook confirmed that on July 11 he was told by Crisp that he had just attended a meeting where he had been in- structed by Moses to get rid of known union members "in any way possible ... even if they [sic] didn't like the way they combed their hair."9 Shook added that he reported the foregoing conversation to Meece and to Ellis, who was the chairman of the union committee. Moreover, Ellis testified without contradiction, and I find, that Crisp, as well as other supervisors, had warned employees that, "if we belonged to the union, we had better keep on our toes or we would be gotten rid of," and that another supervisor, Shelton, had admonished em- ployees to "stay on their toes ... they knew who was in the union and they could be dismissed for any reason ] Moses intimated that these remarks were prompted by the fact that the supervisors seemed to have gotten the notion that membership on the union committee rendered an employee immune from discharge 8 While Gaylord insisted that the supervisors were admonished at that meeting to avoid discriminating against employees , his testimony does not advert specifically to any remarks made by Moses on that occasion on the subject ofdischarges for cause. Neither Gaylord nor Callahan squarely contradicted Crisp's testimony regarding his conversation with Moses about the dyehouse employees, but professed merely not to recall any such conversation. 9 At the same time, Shook acknowledged that he was assured by Crisp that he, himself, did not care how a man felt about a union so long as he did his job, and that Crisp indicated he had no intention of carrying out Moses' instruction. 10 It is not clear from Ellis' testimony at this point whether he attributed to Shelton the additional remark that Respondent was "trying to fire" the union adherents or whether this quoted phrase represented merely Ellis' construction of the purport of Shelton's statement that Respondent was watching the union adherents 11 At the time of the hearing he was no longer in Respondent's employ, having been discharged in August 1966 when the dyehouse was closed Respondent suggests that the fact that he had been discharged may have colored his testimony. However, as the summary thereof in the text in- dicates, his testimony, far from being slanted against Respondent, reflected a tendency to shield it, at least where such testimony touched upon the precise content of Crisp's warning to Shook. 11 That this was in fact the message Moses was attempting to convey to the supervisors is confirmed by the fact that, as found above, other super- visors beside Crisp indicated to Ellis that Respondent was looking for reasons to discharge union adherents. Moreover, there was no effective contradiction of Crisp's testimony that at the supervisors' meeting Moses directed Crisp's attention to the fact that two members of the union com- 415 whatsoever," and that Respondent was "watching the union guys."10 It is manifest from the foregoing that there was no sub- stantial dispute that Crisp warned Shook, in effect, that Respondent was seeking a pretext to discharge him because of his union activity, and I so find. Respondent appears to contend that Crisp's warning is not chargeable to Respondent because it was based on a misinterpretation of Moses' instruction. However, I am constrained to credit Crisp, who had no apparent stake in the outcome of the proceeding, i i as against Respondent's witnesses, who had an obvious partisan interest in the matter, and find that the clear thrust of Moses' remarks was, as Crisp testified, that the supervisors should be alert to find a colorable reason to discharge union adherents,12 and not, as the testimony of Moses and Callahan implies, that the supervisors were to feel free to discharge any- body for just cause, regardless of their union affiliation. In any case, even if it be assumed that Crisp's warning statement to Shook was based on a misunderstanding of Moses' instructions, that would not avail Respondent at this juncture. For the purpose of finding that such warn- ing was coercive, it suffices that it was in fact delivered to Shook by his supervisor, and that the purport thereof was that Shook had jeopardized his job by engaging in union activity.13 Accordingly, I find that by such warning Respondent violated Section 8(a)(1) of the Act. By Callahan As already related, on June 17, Rollins and Mahaffey, employees in the winding and twisting department, were 'notified of their discharge, allegedly for excessive absen- teeism. Penland, who also worked in that department, testified that late in June her supervisor, Callahan, told her that she would have to operate more spindles; that, when she demurred and asked what would be the con- sequences if she refused, he answered that he would mittee worked under Crisp and inquired about the union sentiments of Crisp's other subordinate, Moss. Such focusing of Crisp's attention on the identity of the union adherents under his supervision accords more with a program of discrimination for union activity than with one of neutrality or indifference to the employees' union affiliation 13 Solo Cup Company, 114 NLRB 121, enfd 237 F.2d 521 (C.A. 8); Neco Electrical Products Corporation, 124 NLRB 481, 488 In its brief, Respondent points to Shook's testimony that he was as- sured by Crisp, in effect, that he (Crisp) would ignore Moses' instructions regarding the discharge of union adherents However, whatever reas- surance this may have given Shook personally, it was foreseeable that Shook would (as he, in fact, did) report Crisp's disclosure of manage- ment's policy of reprisals against them to other union adherents, who would not have the benefit of such reassurance. Thus, Ellis, to whom Shook related Crisp's warning, was not under Crisp's supervision Respondent also points to testimony by Gaylord that at the foregoing meeting the supervisors were admonished by him to maintain a position of neutrality in regard to the Union and to treat all employees alike How- ever, for reasons already indicated, I deem more credible Crisp's testimony that, while such instructions had been given at previous meetings of supervisors, a different note was struck at the foregoing meet- ing In any event, as already noted, even if it be assumed that Crisp's warning to Shook was inconsistent with Respondent's policy as enun- ciated at the meeting, that circumstance would not detract from the coer- cive impact of such warning. or relieve Respondent of responsibuity therefor. (Moreover, Gaylord admitted that he himself did not observe a policy of neutrality, but spoke against the Union at employee meetings In view of this, he could hardly have expected his supervisors to be overly conscientious in observing any instructions he may have given that they maintain a policy of neutrality either in their treatment of employees or in their conversations with them ) 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge her as he had discharged Mahaffey and Rollins; and that, when she inquired whether they had been discharged for refusing to operate more spindles, Cal- lahan answered only that they had been attending too many union meetings. Callahan denied that in the foregoing conversation with Penland he had made any reference to the discharge of Rollins and Mahaffey, insisting that at the time of their discharge he did not know that they were union ad- herents. However, upon being questioned further on this point, he acknowledged after some effort at evasion that late in May he had heard "rumors" that Rollins and Mahaffey were attending union meetings. In view of this, as well as demeanor considerations, I credit Penland" and find that, as she testified, Callahan implied that Rol- lins and Mahaffey had been discharged for union activity, and that Respondent thereby violated Section 8(a)(1) of the Act. c. Surveillance Shook testified that late in July Byas, the supervisor of the blending department, suggested that the witness find out if there was an informer at the union meetings, but did not respond to Shook's efforts to ascertain from Byas the identity of any such informer. Byas professed to have no recollection of this incident. On the basis of demeanor, and in view of the circumstantiality of Shook's account, I credit it. However, I do not believe that Byas' foregoing vague reference to an informer warrants a finding that, as the General Counsel contends, Respondent thereby created an impression of surveillance, and dismissal of this allegation will be recommended. d. Solicitation of resignations from union committee As already related, the Union on July 5 submitted to Respondent a list of names of union committee members, and it was stipulated that on July 15 Respondent posted the list on the plant bulletin board. Meece testified that at a meeting in mid-July with about 10 employees Moses invited them to let him know if they wanted to strike their names from the list. Moses, how- ever, attributed this remark to Gaylord. Whether made by Moses or Gaylord, such an invitation to, or solicitation of, union adherents to repudiate the Union was un- lawful.15 e. Striking of names from committee list Whenever a member of the union committee ceased to be employed by Respondent, his name was admittedly struck by Moses from the posted list of members of the union committee. It is apparently the General Counsel's contention that Moses' purpose was to impress upon the employees the precarious tenure of those who publicly espoused the Union. Moses explained at the hearing that his purpose was merely to underscore his argument to the employees that the Union was being supported by per- sons no longer in Respondent's employ, whose motiva- tion was therefore open to question. In its brief, Respond- ent points out also that the Union's letter of July 5, list- ing the names of the committee members; refers to them as "employees" of Respondent. It would seem, therefore, that one effect, at least, of striking the names of those who ceased to be employees, was to conform the Union's foregoing representation to the facts. While the matter is not free from doubt, I do not believe that the record pre- ponderates in favor of a violation finding here.' e f. The May 11 notice It is undisputed that on May 11, Respondent posted the following notice: For the protection of employees, the company does not permit the solicitation of its employees for merchandise, selling of chances, subscriptions, tickets, etc. There may be some community civic programs ap- proved by management, which will be an exception to the above rule. It is important that our plant and the plant's premises be kept neat and clean at all times. There- fore, no notices, posters, stickers or similar material may be posted at any place on company property, except on official bulletin boards, and then only after approval by management. No such material may be distributed or littered on any part of the company premise No employee may engage in any activity either for or against a Union nor engage another employee in such activity during the working time of either em- ployee. Failure to comply with the above rules is sufficient cause for dismissal. The complaint alleges that, by promulgating and main- taining the foregoing restrictions upon distribution of literature and union solicitation,17 Respondent violated Section 8(a)(1) of the Act. In attacking the no-solicitation rule in the foregoing notice, the General Counsel relies only on the timing of Respondent's action in posting the rule, and not on the content thereof. is In this connection, the General Counsel cites Ward Manufacturing Co., Inc.,19 where the Board held that, while a rule proscribing solicitation and distribution of literature only during working hours was "presumptively valid," the promulgation of the rule was unlawful because it was discriminatorily motivated. The rule in that case read as follows: All forms of solicitation and the distribution of litera- ture or other material for any outside organization is prohibited during working hours unless prior written approval has been obtained... . Adverting to the fact that the foregoing rule was posted is Although she had signed a union card, Penland was no longer in Respondent's employ at the time of the hearing and so had no apparent immediate interest in the outcome of this proceeding 11 It is no defense that, as Respondent contends, the record shows that such solicitation was unproductive 16 Other allegations in the complaint relating to solicitation of em- ployees to repudiate the Union and inviting employees to form their own grievance committee were struck at the heanng, in view of the dearth of evidence that Respondent was responsible therefor 11 Additional allegations that Respondent violated the Act by the en- forcement of such restrictions were struck at the heanng, as no evidence of enforcement was presented by the General Counsel 18 Accordingly, absent any objection to the notice on that score, I do not pass on the question whether the notice imposes unduly broad restric- tions on union solicitation iS 152 NLRB 1270. Accord- The Brearley Company, 163 NLRB 637, Pepsi Cola Bottlers of Miami, Inc., 155 NLRB 527 WINCHESTER SPINNING CORP. 417 the day after a union filed a representation petition, the Board there stated: This precipitous promulgation and the fact that the rule did not apply to all forms of solicitation and dis- tribution, clearly indicate that Respondent's purpose in adopting its rule was not to prevent disruptions of production and discipline, especially in the absence of any evidence that any disruption had occurred. Therefore, we find that Respondent's sudden adop- tion of its rule evidenced a concern about union ac- tivity among employees and that the rule was posted solely to stifle the Union's organizing campaign. Here, the rule was posted less than 3 weeks after the in- ception of union activity'20 the rule did not apply to all forms of solicitation, 21 and there was no evidence that the rule was necessary to prevent disruption of production or discipline. Accordingly, I deem the rationale of Ward to be controlling here, and find that the no-solicitation rule in the May 11 notice was promulgated solely to inhibit union activity,22 and that, by promulgating and maintain- ing that rule in effect, Respondent violated Section 8(a)(1) of the Act. With regard to the no-distribution rule in the May 11 notice, the General Counsel makes a twofold contention - (1) that the rule was invalid because unduly broad, and (2) that, even if otherwise valid, the rule was unlawful because of its timing. 23 Treating the second contention first, I find it meritori- ous for the reasons set forth above with regard to the no- solicitation rule. As to the first contention, that the rule is bad because of its content, the Board has held that a no-distribution rule is valid, as applied to union literature, only if its prohibition is limited to distributions during working time or in work areas, and that such a rule is invalid if it proscribes distribution of union literature in nonwork areas during nonworking time. It is clear that the third paragraph of the May 11 notice purports to regulate the distribution of any literature at any time and in any part of Respondent's premises, and that it is therefore unduly broad, insofar as it encompasses the distribution of union literature. However, Respondent's counsel contends that the third paragraph of the notice should be read as limited by the language of the next paragraph, which expressly forbids union activity during working time. Apparently, it is counsel's position that the foregoing ban on union ac- tivity during working time should be read as licensing all forms of union activity, including distribution of union literature, during nonwork time, and as to that extent carving out an exception to the blanket rule against dis- tribution of any literature at any time. However, the fourth paragraph is not couched in terms of an exception to the third paragraph but rather in terms of an additional restriction.24 It would seem unrealistic to expect an em- ployee to put together two such prohibitory sentences and arrive at the conclusion that they added up to a license to distribute union literature during nonworking time. Certainly, the caveat in the notice that noncom- pliance with any of the rules contained therein would be cause for discharge was not likely to encourage an expan- sive reading of the notice but would tend rather to induce employees to play it safe and not distribute any union literature at any time.25 Finally, if Respondent had in fact intended to permit the distribution of union literature dur- ing nonworking time, it would have been a simple matter to say so, and not leave so much to interpretation or sur- mise. Accordingly, it is found that the May 11 notice tended to inhibit employees from distributing union litera- ture in nonwork areas during nonwork time, and that, by promulgating and maintaining such notice, Respondent violated Section 8(a)(1) of the Act. 2. The discharges a. Rollins and Mahaffey Both worked in the winding and twisting department, both were union adherents , attending union meetings and soliciting for the Union , both were discharged about the same time ,26 the same reason (absenteeism) was assigned in both cases , and, as to both discharges , the General Counsel relies mainly on the same item of evidence as proof of discriminatory movitation - namely, Penland's testimony set forth above, which I have credited, that shortly after their discharge their overseer ' 27 Callahan, implied to Penland that he had discharged them for at- tending too many union meetings . Moreover, it has been found above, on the basis of Mahaffey 's uncontradicted testimony , that her supervisor , Emory, had warned her of discharge if Respondent learned of her attendance at union meetings. Respondent contends , nevertheless , that Rollins and t" So far as the record shows, the first union meeting attended by Respondent's employees was held on April 23, and there is no evidence of any union activity prior to that date 1' Note the provision in the May 1 I notice for approval by management of solicitation on behalf of "community civic programs " 22 In its brief, Respondent appears to contend that its no-solicitation rule should be treated as a nullity, because there is no evidence that it was enforced However, there can be little room for argument that the mere posting of a no-solicitation rule, particularly where, as here, the employees are warned of discharge for violating such rule, will tend to inhibit em- ployees from engaging in the activity thus proscribed Atkins Saw Divi- sion, Borg-Warner Corporation, 148 NLRB 949, 953-954, Airpax Elec- tronics, Inc, 164 NLRB 409 The Lion Knitting Mills Company, 160 NLRB 801, cited by Respond- ent, is clearly inapposite, as the Board did not there hold that nonen- forcement of a rule against union solicitation rendered the rule innocuous That case held only that a rule which , unlike the instant rule, did not on its face apply to union solicitation , would not be construed as so applying, in view of testimony by management representatives that it was not aimed at union activity, but only at other forms of solicitation, coupled with the fact that the rule was not enforced against open and widespread union solicita- tion Thus Lion appears to stand only for the proposition that, where a rule against solicitation is construable as not aimed at union solicitation, the fact that the rule was not enforced against open and extensive union sol- icitation will be given some weight as evidence of the scope of the rule Here, however, the rule expressly applies to union activity and there is no room for any other construction. 23 See the General Counsel's postheanng memorandum dated April 21, 1967 24 Moreover, to construe the fourth paragraph as such an exception, an employee unversed in such niceties would have to equate "union activity" with distribution of union literature 25 There is no evidence that either management or the employees in- terpreted Respondent's no-distribution rule in the manner proposed by Respondent's counsel Nor is there any evidence that there was in fact any distribution of union literature by employees at any time on Respond- ent's premises Accordingly, the case at bar is distinguishable in this respect from Lion Knitting Mills, supra, cited by Respondent 16 Both were notified of their discharge on June 17. However, Mahaf- fey's termination notice is dated June 14, and was mailed to her on that date, but returned to Respondent because improperly addressed '7 As overseer, he ranked next above the shift supervisor in the winding and twisting department. 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mahaffey were in fact discharged because of excessive absenteeism and adduced testimony by Callahan and Moses 28 that this was the sole reason for their termina- tion.29 The record shows that Mahaffey was absent 12 days in May and 3 days in June , and that Rollins was absent 2 days in May and 7 days in June.30 To negate any charge of disparate treatment, Respondent introduced the attendance records for May and June of certain other employees in the winding and twist- ing department.31 Of these, Bartlette's record shows seven absences in May and four in June . The record of Wilma Evans, who was hired on May 23, shows nine absences between that date and June 30, and Robinson's record shows her absent during all of May, except for 2 days, and that she worked only I day between August 11 and 25. Wilson. who was employed from June 9 to June 30, worked only 6 days during that period. Callahan admitted that no employees in his department, other than Rollins and Mahaffey, were discharged. Moses explained that Robinson and Evans were retained despite their absenteeism because they could not be easily replaced, as they worked on the third shift, which was the least desirable one.32 However, no explanation was offered for the retention of Wilson, whose record was, relatively speaking, far worse than that of either Mahaffey or Rollins; and the retention of Bartlette, whose record was comparable to that of Rol- lins, was explained only on the ground that Bartlette and her husband had been ill. However, for reasons set forth below, I credit Rollins' testimony that she reported to Respondent on June 13 and 15 that she was ill, and, as al- ready noted, Respondent's witnesses denied, in any event, that the reason for her absence was a factor in her discharge.33 Respondent also introduced exhibits showing that five employees in other departments had been discharged for absenteeism between March and July. In the case of three of these employees (Anderson, James Shook, and Mel- ton), it appears from their attendance records, termina- tion notices, and Moses' testimony that all three were discharged after failing to communicate with Respondent during an extended period of absence.34 Another, Burrell, was absent far more often than he was present. Tommy Huntsinger was discharged on March 25 for absentee- ism,35 but was rehired on June 19. Moses explained that he was recalled only for a temporary, 1-week assign- ment.36 In the case of Melton, also, the record shows that, although he was terminated on July 28, for absenteeism, he was permitted to return to work on August 8. 37 In the case of Ellis, who, according to Moses, had "by far the worst attendance record of any employee in any depart- ment," but was not discharged until October, Moses testified that he was retained as long as he was because of his special skill as a fixer.311 It thus appears that three of the foregoing five em- ployees were discharged only after failure to commu- nicate with Respondent during an extended period of absence and might therefore be presumed to have quit,39 that a fourth (Burrell) had a far worse record than Mahaf- fey or Rollins, and that the fifth (Huntsinger), as well as one of the others (Melton), was rehired despite a prior discharge for absenteeism. It is evident from the foregoing that, while Respondent on May 2 concededly posted a notice warning the em- ployees of discharge for excessive absenteeism, which was reinforced by oral warnings from the supervisors, this policy was not strictly or uniformly enforced. The flexibility of such policy is illustrated by the cases of Robinson, Evans, Ellis, and Huntsinger, in which cases Respondent admittedly deemed their poor attendance to be offset by other considerations. Moreover, there was no tenable explanation of the failure to discharge Bart- lette, whose attendance record was little, if any, better than Rollins', or Wilson, who worked only 6 days out of 19, and the fact that Burrell was retained as long as he was40 is a further indication of disparate treatment. Fi- 28 According to Callahan , the discharge decision was made by Moses after discussion with Callahan However, in his testimony Moses makes no reference to any discussion with Callahan , but claims to have based his decision on reports from Emory, the shift supervisor, who was Callahan's subordinate As he impressed me as , on the whole, a more candid witness, and as I have credited Penland 's testimony that Callahan admitted to her that he had effected the discharge , I credit Callahan as against Moses 29 While Respondent adduced testimony that Callahan and Moses had reason to believe that both Rollins and Mahaffey were feigning illness on certain occasions when they reported that they were sick, they acknowledge that this circumstance did not motivate their action with re- gard to the two employees , and that they would have been discharged in any event because of the number of days they were absent 30 Resp Exh 1 1 shows her absent 4 days between June 1 and 1 1. In ad- dition, she was admittedly absent 3 more days, from June 13 to 15, when, according to Callahan, it was decided to discharge her 31 These records purported to cover only the employees in that depart- ment who were in Respondent's employ on June 30. 32 Rollins and Mahaffey worked on the second shift 33 Both Callahan and Moses testified that they were particularly disturbed by Rollins' failure to come to work on Saturdays, and Callahan added that he warned Rollins about June 1 that, if she continued to absent herself on Saturdays and did not improve her attendance in general, she would be discharged Rollins had already missed two out of three Satur- days in May , and she missed the first Saturday in June and worked only 5- 1/2 hours on the next Saturday , June 11, being excused from work early because of a reported death in her family However, Bartlette was absent four successive Saturdays in June, and Wilson missed three out of five Saturdays in May and June Accordingly , even if one takes into account Rollins' Saturday absences, that would not seem to warrant singling her out for discharge 3' Thus, Melton's termination notice is dated July 28, and the last day worked prior thereto is shown on his attendance record as July 19 James Shook's notice dates his separation from June 28 , his last day worked is June 24 Anderson's notice is dated August I, and his last day worked was July 22 35 His record shows 14 days lost in January, 6 in February, and I in March '° Huntsinger's attendance record shows that, when rehired, he worked 4 days, was absent the next 5 days, and was discharged again on June 30, for absenteeism 1' He worked the next 2 weeks, and presumably resigned or was laid off, as there is no evidence of a second discharge. 38 Ellis' discharge is alleged in the complaint to have been discnmmato- ry This allegation is discussed below 3" Rollins testified that she called the plant on June 13 and 15 to report that she was ill Although Callahan testified that he inquired of Rollins' sister, Robinson, about the reason for Rollins' absence, he did not directly dispute her foregoing testimony, and her termination notice, unlike that of Anderson, James Shook, and Melton, makes no reference to her failure to communicate, but only to "excessive absenteeism " Accordingly , I credit her foregoing testimony In the case of Mahaffey, there is likewise no evidence or contention that she was discharged because she failed to com- municate with Respondent regarding her absence 40 Mahaffey's termination notice cites the fact that she had been absent 13 out of 34 days However, as of June 14, the date of Mahaffey's ter- mination, Burrell had lost 20 out of 34 days, and he was not discharged until July 8, when he had lost 15 more days out of 19 WINCHESTER SPINNING CORP. 419 nally, although Mahaffey testified that two employees, Lowe and Elmore, were absent as much as, or more than, Rollins, Respondent offered no evidence as to their at- tendance nor any explanation for not doing so, nor did it dispute Mahaffey's testimony that they were not discharged. Accordingly, in view of Callahan's implied admission to Penland that Rollins and Mahaffey were discharged by him for union activity, his avowal at the hearing that he had heard of such activity at the time that he recom- mended their discharge, Emory's warning to Mahaffey that she would be discharged if Respondent learned of her attendance at union meetings, President Gaylord's ad- mitted expressions of opposition to the Union in speeches to employees, the fact that Respondent's own evidence demonstrates that its rule against absenteeism was not strictly enforced, and the unexplained retention of em- ployees with attendance records comparable to, and in some cases much worse than, those of Rollins or Mahaf- fey, it is found that their union activity was at least a fac- tor contributing to their discharge, and that by such discharge Respondent violated Section 8(a)(3) and (1) of the Act. b. Wheeler Wheeler was hired by Respondent in June 1965, and worked initially as a "back tender" in the carding depart- ment. As such his principal task was to feed yarn from hoppers into carding machines. In addition, he had some janitorial duties in that department. After 4 months he was transferred to another job, but, late in April 1966, upon suffering an injury on that job, he returned to back tending, and was still so employed at the time of his discharge on August 16. His name was on the list of union committee members sent by the Union to Re- spondent on July 5, and since late in July Wheeler had been wearing a union button while at work. His discharge occurred a week before the Board election. Wheeler's termination notice recites that he was discharged because he had "continually and wilfully refused to properly execute his duties" and that "his neglect had caused below grade yarns to be shipped to customers." Moses explained at the hearing that the low grade yarn referred to in the termination notice resulted from Wheeler's alleged chronic failure to keep his hopper at the prescribed level.41 Moses testified that Wheeler was also reported to have been lax in another respect,42 and cited continual complaints by Overseer Sears during the last several months of Wheeler's employment that Wheeler was not handling his job properly and needed constant, close supervision. However, the only specifica- tion Moses was able to give regarding the subject matter of Sears' complaints was that Wheeler, as already noted, 41 Shelton , Wheeler's immediate supervisor , corroborated Moses on this point 42 According to Moses, about a month before Wheeler's discharge a maintenance man had reported that Wheeler had failed to discharge his responsibility to detect and report the fact that the motor of one of his machines needed oil 43 Moses testified that Sears was in Tennessee, but Respondent made no showing as to what effort, if any , had been made to obtain his testimony 44 The implication here appears to be that Moses felt that Wheeler would be more likely to malinger if he was discharged, and decided to guard against this by postponing Wheeler's discharge until it could be demonstrated that he had completely recovered 45 Wheeler admitted that it was his responsibility to detect the break in did not maintain the supply of yarn in his hoppers at the proper level. Sears did not testify.43 Shelton, who had been Wheeler's immediate supervisor at the time of his discharge, confirmed that Wheeler was in the habit of letting his hoppers run low. While Shelton admitted that other employees were guilty of the same failing, but were not discharged, he asserted that Wheeler was the worst offender, that he produced bad yarn on every shift during the time that he operated the carding machines, and that the witness reported this to higher management. According to Moses, sometime in June Sears had recommended that Wheeler be discharged because of his incompetence, Moses deferred action on this recommen- dation only because there was still some dispute over the extent of Wheeler's disability as a result of his back inju- ry, and Moses preferred not to discharge Wheeler until that issue was resolved.44 Moses acknowledged that some time in July Wheeler reported to him that he was no longer disabled. When asked why he did not then discharge Wheeler, Moses said: . you just don't walk up to a man and say, "We find out you are physically able to do the job, you are fired now." The net effect of the foregoing testimony appears to be that Moses had decided in June to discharge Wheeler, but postponed the execution of this decision pending Wheeler's recovery from his injury, and, when Wheeler finally admitted to a full recovery, Moses decided that to discharge Wheeler at that time would be unduly harsh or ungracious and that it would be more seemly to wait for a more suitable occasion - namely, a fresh manifestation of Wheeler's incompetence. According to Moses, such an occasion presented itself on August 15, when Sears reported to Moses that Wheeler had again let his hopper run low, and again recommended his discharge, to which Moses assented. Wheeler admitted that his shift supervisor, Shelton, was continually complaining about Wheeler's work and that his complaints became more frequent as time went on. However, Wheeler portrayed Shelton as complaining about all the other employees as well, and Wheeler testified, moreover, that Shelton's principal criticism of Wheeler was not because of low hoppers or poor quality yarn, but the fact that the webbing on Wheeler's machines would break, causing the yarn to run out of the front of the machine (not the hopper);45 and, while admitting that his hopper ran low on August 15, Wheeler insisted that this was his first such experience, and that he explained to Sears at the time that he had not been able to attend to that particular hopper because he had to deal with an emergency on another machine.46 the webbing and stop the machine, but that he frequently failed to do this because he had to leave the machines to attend to other duties, such as sweeping At any rate, this matter of the webbing breaking was not specified by Moses or Shelton in their recital of Wheeler's shortcomings Both Wheeler and Shelton testified regarding the matter of Wheeler's eating his lunch outside of the plant , and there was conflicting testimony as to whether this was done before or after instructions were given to Wheeler to eat his lunch near his machines However , while it appears from Moses' testimony that Shelton referred to the matter on August 15, Moses acknowledged that it played no part in his decision to discharge Wheeler, and there is therefore no need to dwell on this point further 46 As Sears did not testify, there is no contradiction of Wheeler's testimony that he tendered such an explanation , and I so find a 336-845 0 - 70 - 28 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ellis, a fixer, who serviced Wheeler's machines, testified that, except for the incident of August 15, he had never seen Wheeler's hopper run low, and that other em- ployees had let their hoppers run low without being discharged therefor. It is clear from the foregoing that Wheeler's hopper did run low on August 15, and that this was the reason as- signed by Respondent for his discharge. It is also clear from the uncontradicted testimony of Shelton and Ellis that no such action had been taken against other em- ployees who were guilty of the same offense. Ac- cordingly, a finding of disparate treatment in the case of Wheeler depends on whether one credits the testimony of Wheeler and Ellis that this was the only time that one of Wheeler's hoppers ran low or the testimony of Moses and Shelton that this was a chronic failing of Wheeler's. Of the four witnesses who testified about this aspect of the case, Shelton appeared to have had the least reason to be partisan." He was no longer in Respondent's employ and was called by the General Counsel to testify. However, he exhibited a marked reluctance to give testimony damaging to Respondent. Moreover, his testimony that Wheeler turned out bad yarn on every shift during his last stint as a back tender - a period of nearly 4 months - is difficult to reconcile with Moses' testimony that since about the middle of July98 Wheeler was a man marked for discharge at the first suitable occasion. It would seem that, if, as Shelton claimed, he was keeping higher management advised of Wheeler's ineptness, it would not have been necessary for Moses to wait until August 15 for such an occasion. Accordingly, if Moses, for what- ever reason, had in fact reached a decision some time prior to August 15 to discharge Wheeler at the first op- portunity, it is clear that Shelton was exaggerating the frequency of Wheeler's lapses. Moreover, the same criticism may be made of Moses' own testimony that Sears was continually complaining about Wheeler's inadequacies. In view of the foregoing, as well as demeanor con- siderations , and, as I have found it necessary to reject Moses' testimony in other areas, I credit Wheeler and Ellis as against Moses and Shelton and find that Wheeler was not any more remiss than other employees in the matter of keeping his hoppers supplied with yarn. It has already been found that Moses enjoined the supervisors on July 11 to look for a reason to discharge union ad- herents, and that Shelton reiterated this policy to Ellis and other employees. Accordingly, while I believe that Moses was, as he acknowledged, looking for a suitable opportunity to discharge Wheeler, I find that this attitude toward Wheeler stemmed, not from any recommendation made in June by Sears that Wheeler be discharged for in- competence, but rather from the fact that Wheeler's name appeared on the July 5 list of union committee members. Accordingly, it is concluded that Wheeler was discharged for union activity, thereby violating Section 8(a)(3) and (1) of the Act. c. The dyehouse crew- Meece and Shook On August 1, Respondent closed its dyehouse, al- legedly for economic reasons, thereby terminating the employment of Supervisor Crisp, and employees Shook, Meece, and Moss. Shook and Meece were on the July 5 union committee list,49 and the General Counsel con- tends (1) that the dyehouse was closed for discriminatory reasons, and (2) that, in any event, Meece and Shook would have been retained and used in the blending de- partment, but for their union activity The latter conten- tion will be first considered. (1) The transfer issue Both Meece and Shook had worked in the blending de- partment before being assigned to the dyehouse, and, even after such assignment, Meece continued to work in blending on a part-time basis. There was no evidence or contention that Moss, the third member of the dyehouse crew, had had any experience in blending. It is un- disputed that a week or so before the closing of the dyehouse, and again on July 31, Byas had told Plant Manager Moses that the blending department was short handed and urged that at least two of the dyehouse em- ployees be transferred to blending, to supplement his ex- isting crew, and it is conceded that Moses opposed any such transfer. In addition, Shook testified that on August 1, Byas and Moses both indicated to him that the forego- ing transfers were ruled out because of considerations pertaining to the Union. Byas' remarks, according to Shook, were addressed to him and Meece and were to the effect that Byas tried to arrange their transfer but Respondent would not permit it "on account of the Union," and Shook attributed to Moses the explanation that Respondent's lawyers would not permit the transfer "on account of the Union." Byas did not directly contradict the foregoing testimony as to his remark to Shook but professed only to be unable to recall any such incident. In view of this, as well as other considerations bearing on Shook's credibili- ty, discussed above, I credit Shook and find that on Au- gust 1, Byas admitted to Shook that he had attempted to arrange the transfer of Shook and Meece to blending but that higher management had opposed such transfer "on account of the Union." As for Moses' remark, his own testimony substantially corroborates Shook's in that re- gard, and, insofar as there is any conflict, I credit Shook for reasons already indicated. Respondent attempted to counter the damaging effect of the foregoing matters by adducing testimony by Byas and Moses to the effect that, in refusing to transfer any of the dyehouse employees to blending, Respondent's pur- pose was not to discriminate against them because of their union activity, but rather to avoid the appearance of discriminating against certain employees in the blending department, who were, themselves, members of the union committee. On August 1, there were four employees in the blend- ing department, of whom three, Searcy, McCraw, and James Harris, were admittedly known to be union adher- ents.50 The fourth, Pressley, had signed a union card, but Moses disclaimed any knowledge of his union sentiments, and there is no evidence of any such knowledge. Of these four employees, Searcy and McCraw had the least de- partmental seniority. 41 Ellis was chairman of the Union's committee and, like Wheeler, an al- leged discnmmatee. 48 Moses was vague as to the precise date in July when Wheeler an- nounced his recovery, but adopted the suggestion in a question put to him that this occurred in mid-July 48 Moss had signed a union card but was not on the committee list i0 The names of McCraw and James Harris appear on the July 5 list of union committee members , and Searcy's name appears on a supplement to that list submitted by the Union on July 19 See G C Exh. 1(m) (Ap- pendix F) WINCHESTER SPINNING CORP. 421 It is apparently Respondent's contention that Byas proposed to Moses the transfer only of Meece and Moss to blending, Shook being ruled out of consideration because of a back injury, and that Moses opposed such transfer on the ground (1) that, contrary to Byas, he did not believe that economic conditions warranted adding to the existing work force in blending, (2) that the transfer of Meece and Moss could therefore not be accomplished without displacing Searcy and McCraw, the two junior employees in blending, (3) that it was Respondent's un- written policy to follow departmental seniority with re- gard to layoffs, and (4) that, if Respondent departed from this policy and, on the basis of plantwide seniority, replaced Searcy or McCraw with Moss, whose union sen- timents were not known, Respondent might be charged with discriminating against Searcy or McCraw because he was a known union adherent. At the threshold, it must be noted that it is essential to acceptance of the foregoing defense that one credit the testimony of Byas and Moses that, notwithstanding his prior experience in blending, the transfer of Shook was ruled out by them from the beginning because of a back injury suffered by him after leaving the blending depart- ment, and that Moss was the only one considered for transfer along with Meece. For, as already noted, both Meece and Shook were on the July 5 committee list, and, had their transfers been the only ones under considera- tion, Respondent could have had no reason to fear a charge of discrimination because of the replacement of two union committee members (Searcy and McCraw) with two other committee members. However, Shook's aforecited, uncontroverted testimony establishes that Byas disclosed to him on August 1, that Byas had tried to arrange the transfers of Shook and Meece. While it is con- ceivable that Byas may have wished to conceal from Shook the fact that he had given preference to Moss over Shook, no testimony to that effect was offered at the hear- ing, and, in the absence thereof, the Trial Examiner is faced with a choice between two unreconciled, conflicting versions of the matter, the one given by a supervisor out of court and in advance of litigation, which version is damaging to his Employer's case, and the other given by him in court in support of his Employer's position.51 While the latter was sworn testimony, whereas the former was not, the fact that the out-of-court statement was less likely to be tainted by considerations of the witness' or his Employer's interest, is a guarantee of its truthfulness, which may not lightly be dismissed. Under all the circum- stances,52 I am inclined to give more evidentiary weight to Byas' August 1 statement that he tried to arrange the transfer of Shook (as well as Meece), and it is so found. For this reason alone, it is necessary to reject Respond- ent's defense, which rests on the premise that only Moss and Meece were considered for transfer. In any case, this is i,ot the only obstacle to acceptance of Respondent's defense. Another essential ingredient thereof is the contention that Moses did not deem it feasi- ble to add two men to the blending crew, as Byas proposed; for, had Moses agreed to do this, there would have been no problem of replacing, or discriminating against, McCraw or Searcy. On this point, Moses and Byas testified that, while Byas told Moses he needed more men because of the heavy workload in his depart- ment, Moses disagreed because he foresaw a decline in future business, and for this reason ruled out any increase of the blending crew, and gave consideration only to the feasibility of replacing two members of that crew. Yet, while Byas and Moses admitted that for about a month after the closing of the dyehouse the workload in blending continued to be heavy, necessitating considerable over- time work, they attempted to minimize the significance of this circumstance by insisting that the overtime work for the most part could not be spread over the entire week but had to be done by the entire crew on a particular day (Saturday), so that such overtime would not have been greatly reduced by increasing the size of the blending crew. However, the credibility of such explanation is im- paired by the fact that it was advanced by Byas only after he had first attempted to offer a different, and apparently untenable, justification for the resort to overtime in preference to enlargement of his crew,53 and only after Respondent's counsel diverted him from that explanation by posing the question whether the overtime work was "daily work" or "Saturday work." The fact that Moses, who testified after Byas, corroborated him on the "Satur- day work" issue could not entirely repair the damage wrought by Byas' vacillation. In addition, even if one accepts all of Respondent's other contentions and assumes that it was confronted with the problem of using Moss as a replacement for Searcy or McCraw, and was deterred from doing so by the fear of a charge of discrimination, the question remains why it would not have been feasible to transfer Meece alone, since he was a union committee member and there could have been no claim of antiunion dis- crimination in preferring him to Searcy or McCraw. Moses attempted to supply an answer to this question. His rather cryptic statement on this point, construed most favorably to Respondent, seems to imply that the only tenable basis on which he could have replaced Searcy or McCraw would have been to substitute plantwide seniori- ty for departmental seniority, that, if he had done this, Moss would have been entitled to preference over Meece, because the former had more plantwide seniority than the latter, and that, if he had, nevertheless, used Meece alone as a replacement for Searcy or McCraw, Moss would have had cause to complain that he was being discriminated against because he was not a member of the union committee.54 However, at a later point " The fact that both Moses and Byas testified that they agreed that Shook's back injury disqualified him from assignment to the blending de- partment is not, of course, dispositive of the matter , since such testimony conflicts with Byas' foregoing disclosure to Shook, insofar as such disclo- sure implied that despite such injury Byas thought well enough of Shook's qualifications for the blending work to recommend his transfer thereto sx 1 am not unmindful of the fact that Byas ' testimony on the point in issue was corroborated by Moses However , the weight of this is affected by the many circumstances noted throughout this Decision reflecting on Moses' credibility , as well as by the partisan nature of such corroboration as contrasted with the apparently disinterested character of Byas' August I disclosure to Shook 51 Thus, when asked, in effect, why Respondent preferred to adopt the uneconomic alternative of overtime work with premium pay rather than to choose at least temporarily to enlarge the blending crew, Byas' initial response was that his own men were asking for overtime However, this desire of his men for overtime had not deterred Byas from proposing to Moses the enlargement of his crew , and, Byas admitted that, in rejecting such proposal, Moses did not cite as a reason the desire of the blending crew for overtime work. 5' Apart from anything else, it may be deemed somewhat paradoxical that, at the same time that President Gaylord was openly avowing his op- position to the Union in speeches to the employees , Moses would seri- ously fear a charge of discrimination against Moss because he was not a union adherent 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moses indicated that Meece, in fact, had more plantwide seniority than Moss.55 When asked why consideration was not given to replacing Pressley, who worked in blending and was not on the union committee, Moses at first gave the curious answer that this was not considered because Pressley "would have been upset at being replaced." Although he subsequently offered the more substantial reason that the replacement of Pressley was not considered because he had higher plantwide seniority56 than Meece or Moses, eventually acknowl- edged that Pressley had less plantwide seniority than Meece.57 Upon consideration of all the foregoing circumstances, it is found that late in July Byas twice proposed the transfer of Meece and Shook to the blending department as additions to his crew, that Moses rejected this proposal, and, in view of the tenuous nature of the reasons advanced by him at the hearing for so doing and the aforenoted inconsistencies in his testimony, I find that such reasons were contrived and designed to conceal his true motivation. I find further that such motivation was disclosed in Byas' admission to Shook that he and Meece were not transferred because of considerations pertaining to the Union;58 for, absent any other persuasive explana- tion, it is found that Bvas thereby meant to say, as his statement implied, that Shook and Meece were denied transfers because they were union adherents.59 (2) The closing of the dyehouse As already stated, the General Counsel contends that the closing of the dyehouse was, itself, motivated by the fact that Meece and Shook were known to be union ad- herents. Respondent answers that the dyehouse was closed solely for economic reasons. From November 1964, when Respondent moved to Asheville, until May 1965, when its dyehouse was opened, Respondent perforce relied exclusively on the services of independent dyehouses, including Model Dye Southern in Sumter, South Carolina, hereinafter called "Model." After June 1965, Respondent retained only Model as an outside source of supply There is no dispute that Respondent's per unit dyeing costs at Asheville were substantially higher than Model's charges.60 Nevertheless, at all times prior to August 1, 1966, Respondent appears to have used Model only as a secon- dary source of supply, to handle overflow orders during peak periods, except that any "repeats" of orders previ- ously handled by Model would normally be sent to it.si Gaylord testified that, in April or May 1966, he was satisfied not only that it would be more economical to use Model but also that it could do the work expeditiously, and that about that time an effort to find a more com- petent head dyer62 had proved unsuccessful. According to Gaylord, it was decided late in May to sell the dyehouse equipment, and use Model exclusively in the future, and a broker was authorized to find a buyer for the dyehouse equipment.63 Thus, according to Gaylord, the situation at the end of May was that it had been decided to sell the dyehouse equipment, and the actual termina- tion of the dyehouse operation depended on when such sale could be effected. Moses' version of the events leading up to the decision to close the dyehouse was that early in 1966 he reached the conclusion that continued operation of the dyehouse would be uneconomic unless Crisp was replaced by a more competent head dyer, but that, after a search for such a replacement proved unsuccessful, Moses and Gaylord discussed closing the dyehouse for that reason, and it was agreed by them not to close it until the fall, when the busy season for dyeing normally ended.64 Thus, while otherwise agreeing in the main with Gaylord, Moses acknowledged that the original plan was to close the dyehouse in the fall (on the assumption that the busy season would continue until then) and Moses makes no reference to any proposed sale of equipment as affecting the date of closing of the dyehouse. On the other hand, as already noted, Gaylord's testimony was that when the dyehouse would be closed depended on when the equipment would be sold. _ 15 This was in connection with his discussion of the relative seniority of Pressley, Meece, and Moss , which is referred to in the text, below In any case , since Meece, unlike Moss, had formerly worked full time in blending , and was still doing so on a part-time basis , it would seem that even under a policy of departmental seniority there would have been little difficulty in justifying the transfer of Meece alone to blending 51 While Moses' actual testimony was that Pressley had "higher seniori- ty," it is evident from the context that Moses was at this point speaking of plantwide seniority . For, it was apparently Moses' contention at this point that, while in the case of Searcy and McCraw, who had less plantwide seniroity than Meece or Moss, Moses had considered resorting to plant- wide seniority as a basis for replacing them, no consideration was given to replacing Pressley, because his plantwide seniority exceeded that of both Meece and Moss. 51 At this point Moses added that Pressley had more plantwide seniori- ty than Moss If so, it necessarily follows that Meece also had more plant seniority than Moss Yet, as already noted, in attempting to justify the failure to transfer Meece alone to blending , Moses appeared to imply that Moss had more plant seniority than Meece 58 Necessarily implicit in the above finding of discriminatory motivation is the subsidiary finding that the only action considered by Moses was that proposed by Byas - namely, the retention of Shook and Meece in addition to, and not in place of, McCraw and Searcy - and that Moses rejected such proposal because he preferred to avail himself of the opportunity to reduce by two the number of known union adherents on Respondent's payroll `" As already noted, Moses' contemporaneous admission, as credibly related by Shook, was more ambiguous than Byas' , in that it attributed to Respondent's lawyers responsibility for the decision not to transfer the dyehouse men "on account of the Union " While this suggests that Moses meant that the transfers were ruled out because of legal problems such as Moses described in his testimony, such remark is equally susceptible of the interpretation that Moses meant that Respondent was relying on ad- vice of counsel as to what action would best serve its interests in its ad- mitted campaign to defeat the Union At any rate , even if one takes the view of the matter most favorable to Respondent , and assumes that, as he stated at the hearing, Moses meant only to say that Respondent eschewed the transfers in order to avoid any appearance of discnmmation , such self- serving explanation , even though given ante luem, cannot suffice to over- come the weight of all the other circumstances cited above militating against the credibility thereof ^0 President Gaylord attributed this in part to the ineptness of Crisp, the head dyer 61 Gaylord credibly explained that, in the case of a "repeat" order- that is, an order calling for the same shade of dye as a previous order - con- siderable time and money would be saved by having the order handled at the same location (whether in Asheville or Sumter) as the prior order 62 See fn 60, above 63 This was corroborated by correspondence from the broker relating to the sale of the equipment , which was introduced in evidence 64 According to Moses, the busy season usually extended from April to the fall Gaylord's testimony was that it began in February or March and ended in October or November WINCHESTER SPINNING CORP. 423 However, the actual closing occurred despite the fact that neither of the foregoing events had come to pass; for, on August 1, there had not been any sale of the equipment65 and the fall was still several months away. In explaining the timing of the closing, Gaylord initially cited the fact that on July 15 the backlog of dye orders was "declining sharply," dating such decline from the end of May, and he testified that on July 15, the backlog in Respondent's dyehouse represented only 2 weeks' work.66 Later, he stated that the "primary considera- tions" in deciding to close the dyehouse as of August I were (1) the fact that the current backlog represented only 2 weeks' work and (2) Respondent's projection of poor business in the fall, on the basis of its appraisal of customer sentiment. As to the alleged sharp decline in dye orders after late May 1966, Rspondent's Exhibit 9 shows that orders is- sued by Respondent for dyeing at Asheville totaled about 56,000 pounds in the April-May period and about 51,000 pounds in the June-July period.67 While there was a drop from about 30,000 pounds in June to 20,000 in July, figures submitted by Respondent in its brief show an even sharper drop in 1965, from about 34,000 pounds in June to 11,000 pounds in July. When it was brought to his attention that,from the evidence then available the total or orders written in July 1966 for dyeing at Asheville seemed to compare favorably with the corresponding figure for 1965, Gaylord launched into a confused, rambling discussion, and finally settled upon the explanation that the "signifi- cant point" was that on July 15, when he decided to close the dyehouse, it had only 2 weeks' work on hand. How- ever, it would seem that, if this was true in July 1966, it must have been equally true in July 1965, when, as shown above, the volume of dye orders for Asheville was about half of the July 1966 volume. While it is not disputed that in July 1966, unlike July 1965, Respondent had ascertained that Model could han- dle all Respondent's dyeing requirements cheaply and ex- penditiously, and that Respondent had in fact decided in May 1966 for that reason to sell the dyehouse equipment, the question remains why Respondent abandoned its original plan, which was as Moses admitted, not to close the dyehouse until the fall. As already noted, Gaylord's explanation that in June and July 1966 there was a "sharp" decline in orders is not borne out by a com- parison of those months either with prior months in 1966 or with the same months in 1965. While Gaylord's testimony adverts to the unpromising outlook for all business,68 this appears to have been only a secondary consideration, as he repeatedly stressed that the con- trolling consideration was the foregoing decline in orders and the resulting low backlog as of July 15. Since Respondent's own records do not support the reason for the closing on which it placed its main reliance, I am con- strained to reject Respondent's entire economic defense.69 As there remains no explanation for the closing of the dyehouse other than that advanced by the General Counsel, and, as the plausibility of such explanation is reinforced by the fact that such closing occurred in the context of the other unfair labor practices found above, including multiple discriminatory discharges, particularly the discriminatory refusal to transfer Shook and Meece to the blending department, and at a time when the Union's preelection campaign was approaching a climax, I find that, while Respondent decided in May to close the dyehouse, it was also decided at that time to defer such closing until the fall, but the closing date was advanced to August 1, at least in part because of the opportunity af- forded thereby to get rid of two known union adherents in advance of the impending election. It is therefore found that the decision to close the dyehouse on August 1, and discharge Meece and Shook rather than transfer them to blending was dictated by an- tiunion considerations, and that Respondent thereby vio- lated Section 8(a)(3) and (1) of the Act. d. Conner Conner was discharged on July 1, and his termination notice attributes his discharge to his shortcomings as a su- pervisor during the preceding 8 or 9 months. The General Counsel contends (1) that Conner was not a supervisor at the time of his discharge, and (2) that his discharge was, in fact, because of his union activity. Conner was hired in November 1964, and about 6 weeks later was appointed "overseer" of the spinning de- partment, in which capacity he was admittedly a super- visor. However, in October 1965, he was replaced as overseer by Hebert and, according to Conner, his duties thereafter were solely those of a "fixer."70 He insisted that he was never told to perform, and that he had never performed, any functions under Hebert except as a fixer, and that he had no notice that he was a supervisor under Hebert until he received his termination notice. Mose3 testified that, at the time that Conner was an overseer, the_siinning department was still in the forma- tive stage,'' and the second and thire shams were then under the direction of "leadmen," who merely relayed to the employees instructions from Moses and Gaylord. Moses added that, in notifying Conner of his replacement by Hebert, Moses offered Conner the position of "super- The equipment was not sold until January 1967 16 Moses confirmed that on July 15 , Gaylord proposed closing the dyehouse because of lack of orders, and that, when Moses reported that there was only 2 weeks' work on hand, Gaylord decided to close the dyehouse as of August 1 ''° Admittedly all July orders reflected orders received from customers before July 15, when the decision to close the dyehouse was assertedly made 1,8 Gaylord acknowledged that there was in fact no decline in fall busi- ness until November (as indicated by the sharp drop in December produc- tion) `y Gaylord testified that, while substantial orders for dyeing were received late in July and during August , all such business consisted of "re- peats" of orders previously handled by Model, so that, even if the dyehouse had remained open, such orders would have been assigned to Model, and there would have been no work for the dyehouse throughout August However, it is not contended that it was foreseen that all the Au- gust orders would consist of repeat business for Model or that such a con- tingency entered into the decision to close the dyehouse (Since the overwhelming majority of all prior orders had been handled at Asheville, the odds against all the orders in a particular month being confined to re- peats of orders handled by Model , to the exclusion of any repeats of Asheville business, or any "first-time" orders, would seem to be as- tronomical It is accordingly understandable that Respondent would not have anticipated that this would happen ) °0 These duties consisted of changing gears on machinery and testing yarn " Respondent had recently moved to its present location 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD visor on the first shift," and that Conner accepted. It is undisputed that Conner continued to work on the first shift at the same rate of pay as he received as overseer, and that his duties included fixing. However, there is no evidence that Moses ever explained to Conner what other duties he would have as shift supervisor or gave Conner any reason to believe that they would be any different from those of the other shift leadmen in the spinning de- partment, who admittedly were not at that time super- visors Accordingly, I deem Moses' foregoing testimony, even if credited,72 as affording insufficient basis for find- ing Conner to be a statutory supervisor, and as proving at most that Moses offered Conner a position as leadman under Hebert, which position admittedly did not at that time require the exercise of independent judgment However, according to Hebert, upon his arrival as overseer, he was told by Moses that Conner was to con- tinue to have the same authority as before, except that he would be under Hebert's "supervision," and, according to the witness, Conner, in addition to his fixing duties, did in fact direct and assign work to employees, select em- ployees for overtime work, grant time off, and evaluate the progress of trainees.73 Cole, a first-shift employee in the spinning department, testified that during Hebert's tenure as overseer Conner would assign her to assist other spinners, and that, in the absence of Hebert, Conner would give certain instruction to the employees that were normally given by Hebert 74 No witness was called by the General Counsel to cor- roborate Conner's blanket denial of any supervisory role under Hebert.75 Moreover, on the basis of the testimony of Hebert and McMahan,76 I am satisfied that under Hebert the lead- man on the second and third shifts in the spinning depart- ment acquired more responsibility, including the authori- ty to assign work to employees according to their capa- bilities, thereby constituting them supervisors under the Act, and that McMahan, who, after Conner's discharge became the "first shift supervisor" in spinning, was a statutory supervisor in that capacity.77 Also, the parties were agreed that at the time of Conner's discharge shift supervisors in other of Respondent's departments were supervisors under the Act,78 and the General Counsel failed to offer any testimony to explain why a different situation should prevail in the spinning department In view of all the foregoing circumstances, including demeanor considerations, I credit the testimony of Hebert and Cole and find that, under Hebert, Conner did perform the duties of a statutory supervisor, that he was such a supervisor when discharged, and that his union ac- tivities were therefore not protected by the Act Ac- cordingly, there is no need to resolve the conflicting testimony regarding the reason for his discharge, and it will be recommended that the complaint be dismissed as to him. e. Ellis Ellis was hired in October 1964, and worked as a fixer in the carding department until his discharge on October 11, 1966. He was designated in the Union's July 5 letter as the chairman of the union committee. His termination notice attributes his discharge to excessive absenteeism, and his attendance record shows that he was absent every day in February but 4, most of March and April, 7 days in June, 5 days in July, 6 days in August, and that he was continuously absent from September 22 through October 10, a period of 16 working days. There is no substantial dispute that on October 6, when Ellis visited the plant to pick up a paycheck, Moses questioned him about his plans to return to work, and handed him a letter signed by Moses commenting on his excessive absences. The letter concluded with what was, in effect, a warning of discharge unless Ellis contacted Moses by October 10, notified him when Ellis would return to work, and assured Moses that his attendance would be more regular than in the past. Ellis testified that he told Moses on that occasion that he would either return to work on the 10th or call in, and that, when Moses insisted that he "would have to know something," Ellis pleaded the difficult position in which he had been placed by his wife's illness.79 Ellis added that his wife suffered a relapse on October 9, that the next day his daughter called the plant, and he himself called his su- pervisor, Sears, at his home and stated that "as far as he knew" he could come to work the-next day, that Sears re- ported that the matter was no longer in his hands and referred Ellis to Moses, whom Ellis tried unsuccessfully to contact; and that on the 1 ith the witness received his termination notice in the mail. Moses' version was that on October 6, Ellis, when questioned about his future availability for work, promised to return on the 10th, and to work with reasona- ble regularity; that the discussion ended with the un- derstanding that, if Ellis did not report for work on the 10th, Moses would assume that Ellis no longer wished to work for Respondent; and that Moses waited until the 11th, and, upon the failure of Ellis to report that day, he was discharged. Ellis' termination notice cites his long record of absen- teeism and his latest period of continuous absence, and refers to a promise by Ellis a few days earlier that he would report on the 10th. The notice continues: This he did not do and while he had someone else call 'Z Conner denied that he was offered any job by Moses other than as a fixer 71 Conner specifically denied performing any of these functions under Hebert 74 Moses explained that it was necessary to have a shift supervisor on the first shift, even though the overseer was present at that time, because the press of the overseer's administrative duties and paper work prevented him from giving full time and attention to the direction of the workforce " Moreover, there is a suggestion in certain of Conner's testimony that, contrary to his blanket denial, he did at least during the e..rly part of Hebert's tenure exercise some authority over other employees. Such testimony was to the effect that about 6 weeks after becoming overseer Hebert told Conner that his duties would be limited to fixing and that Conner was not to give any instructions to the employees Conner failed to explain why this delimitation of his duties was necessary , if, as he testified , he was never more than a fixer under Hebert 'fi He was the second shift leadman or "supervisor" under Hebert until Conner's discharge , when McMahan became "first shift supervisor " " He testified , without contradiction , that his duties on the first shift were the same as they were on the second shift '" Thus, the complaint alleges, and the answer admits, that Emory, who was about that time a shift supervisor on the second shift in the winding department, and Shelton, who was then first-shift supervisor in the card- ing department, were supervisors under the Act 'y Ellis' absences were due to his wife's condition, which periodically required his attendance upon her WINCHESTER SPINNING CORP. 425 to report that he could not come to work, the com- pany feels that Mr. Ellis is in fact voluntarily quitting his position. It is clear from the foregoing, including the testimony of Ellis, himself, that on October 6 he was handed a letter which, in effect, warned him of discharge, absent some in- dication when he would return to work and a pledge of more regular attendance in the future, that Ellis made at least a qualified promise to return to work on the 10th, and that on that date Moses learned, apparently from El- lis' daughter, that he would not report that day. Under the circumstances, it would seem that Respondent was justified in believing that there was little immediate prospect that Ellis' attendance would improve, and in im- plementing its warning in the October 6 letter that, absent some assurance of such improvement, it would treat Ellis as having quit.80 The General Counsel presented no evidence that any employee with a record of absenteeism comparable to that of Ellis was retained by Respondent. Moreover, here, unlike the cases of Rollins and Mahaffey, there is no evidence of any out-of-court admission by a representa- tive of management that Ellis' union activity contributed to his discharge, and, if Respondent had been seeking a pretext to discharge Ellis for that reason, it would seem more logical for it to have done so in July or August, when the Union's preelection campaign was in full swing, and during which period Ellis was frequently absent from work, than to wait until about 7 weeks after the election.81 Moreover, the fact that Respondent offered Ellis an op- portunity to save his job simply by promising more regu- lar attendance in the future and/or reporting for work on the 10th, as well as the fact that Moses voluntarily ex- tended that deadline by one day,82 is difficult to reconcile with any theory that Respondent was seeking a pretext to discharge him. In view of all these circumstances, particularly the absence of any evidence of disparate treatment, the seri- ousness of Ellis' absenteeism, and, as the timing of his discharge was not shown to have any particular sig- nificance in relation to the Union's campaign, I do not be- lieve that the evidence preponderates in favor of a finding that such discharge was for union activity.83 It will there- fore be recommended that the complaint be dismissed as to him. IV. THE POSTELECTION ISSUES The Challenges In the election held on August 23 and 24, 38 votes were cast for the Union and 39 against, and 8 were chal- lenged. The Union filed timely objections to conduct af- fecting the results of the election. The Regional Director recommended that two of the challenges be overruled and that one be sustained There remained the challenges to the ballots of Conner, Mahaffey, Shook, Meece, and Wheeler, all of whom are alleged in the instant complaint to have been discriminatorily discharged before the date of the election. As to them, the Regional Director recom- mended that ruling be reserved pending final action on the instant complaint.84 As it has been found above that Mahaffey, Shook, Meece, and Wheeler were discrimina- torily discharged, it will be recommended that the chal- lenges to their ballots be overruled and that their ballots be opened and counted As to Conner, it has been found that he was a supervisor when discharged, and that his discharge was therefore not violative of the Act. Ac- cordingly, it will be recommended that the challenge to his ballot be sustained. The Objections The Regional Director directed a hearing on objections 4 and 5, and certain other objections which he discussed under the caption "Objections I and 3, and Other Acts and Conduct." Objections 4 and 5 related to the alleged discriminatory discharges of Meece, Shook, and Wheeler, all during the last 3 weeks of the preelection period. As it has been found that such discharges were in fact discriminatory, it will be recommended that, if it is determined after disposition of all challenges that the Union has not received a majority of the votes cast, the election be set aside, because of the coercive impact of such discharges upon the employees, and a new election ordered to be held at such time as the Regional Director may deem appropriate.85 81 Such justification would exist even if, as Ellis contended , he received his termination notice in the mail on the morning of October 11, which would mean that it was sent out on the 10th In any case , I am inclined to credit Moses ' testimony that he waited until the 11th to discharge Ellis, thereby giving him an extra day's grace , as this is supported by the fact that the notice , itself, is dated October I I 11 Moses testified that Respondent tolerated Ellis' absence for so long because of the highly skilled nature of his work as a fixer in the carding de- partment, but that this factor became less important in October, when work became slack and operations were substantially curtailed d2 See fn 80, above 13 while Ellis was ostensibly a more prominent union adherent than any of those found above to have been discharged for union activity, Ellis ad- mitted making statements to Respondent at various times indicating that he was disposed to work against the Union and for an independent union, and the Regional Director's report on objections cites admissions by Ellis that in July he proposed to Respondent that he contact all those who signed cards for the Union and urge them to renounce the Union Under these circumstances Respondent may well have regarded him as an ally rather than otherwise 84 No exceptions to the Regional Director 's report were filed 85 There is , accordingly , no need to consider the validity of the objec- tions I and 3 However, it may be noted that all matters specified in those objections are covered by allegations of the complaint which were dismissed either at the hearing or in the instant Decision In addition to such matters , the Regional Director treated as part of those objections other conduct of Respondent , not alleged in the objections , either in general or specific terms , including Crisp's disclosure to Shook of Respondent 's policy of discharging union adherents for "cause," and Respondent 's invitation to employees to strike their names from the July 5 committee list Both of these incidents have been found above to be viola- tive of the Act. However, it would seem that under current Board policy, the failure to allege such incidents in the objections precludes considera- tion thereof by the Board Don Allen Midtown Chevrolet, Inc , 113 NLRB 879, Atlantic Mills Servicing Corporation of Cleveland, et al, 120 NLRB 1284, National Furniture Company, Inc, 119 NLRB 1, 4. In the last case the Board approved a Regional Director's finding that an allega- tion of interference with an election by "diverse and sundry other acts" lacked sufficient specificity Here, there was not even such an allegation by the Union, but only a charactenzation by the Regional Director of mat- ters not covered by the objections as "other acts and conduct," apparently on the assumption that he was not limited in his investigation of objections to the particular matters alleged by the Union To the extent that cases like J I Case Company, 86 N LRB 12, and Hobart Manufacturing Com- pany, 92 NLRB 203, 205, support the foregoing assumption , they would appear to have been overruled by the more recent decisions cited above 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. 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 Respond- ent's operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. VI. THE REMEDY It having been found that the Respondent violated Sec- tion 8(a)(1) and (3) of the Act, it will be recommended that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the poli- cies of the Act. It has been found that the Respondent discriminatorily discharged Rollins, Mahaffey, Wheeler, Shook, and Meece. As the record indicates that since such discharges Respondent has substantially curtailed its operations for economic reasons, it is possible that some of these em- ployees might have been terminated even absent any un- fair labor practices. Under these circumstances, it will be recommended that the Respondent be ordered to offer the foregoing five employees immediate reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, dismissing, if necessary, any employees hired since their discharge. If there is not then sufficient work available for the remaining employees and the five claimants, all available positions shall be distributed among them in ac- cordance with such nondiscriminatory practice as Respondent has heretofore followed, in effecting reduc- tions in force for economic reasons. The Respondent shall place those employees, if any, for whom no employ- ment is available after such distribution, on a preferential hiring list, priority on such list being determined in ac- cordance with such preexisting nondiscriminatory prac- tice, and thereafter offer them reinstatement as employ- ment becomes available and before other persons are hired for such work. Respondent should also be directed to reimburse the above-named employees for any loss of pay they may have suffered by reason of the Respond- ent's discrimination against them, by paying to each of them a sum of money equal to the amount he or she would normally have earned as wages from the date of discharge to the date of Respondent's offer of reinstatement, less their net earnings during that period. Backpay shall be computed on the basis of calendar quarters, in ac- cordance with the method prescribed in F. W. Woolworth Co., 90 NLRB 289, and interest at the rate of 6 percent per annum shall be added to net backpay, in accordance with Isis Plumbing & Heating Co., 138 NLRB 716. As it is possible, however, that one or more of the five em- ployees might have been terminated in a reduction of force, even absent any unfair labor practices, this possi- bility is to be taken into consideration in determining the amount of backpay due these employees. In view of the nature of the violations found herein, particularly the discriminatory discharges, a potential threat of future violations exists which warrants a broad cease-and-desist provision. CONCLUSIONS OF LAW 1. By coercive interrogation of employees concerning their union sentiments and those of other employees, by solicitation of employees to repudiate the Union, by threats of reprisal for union activities, by promulgating and maintaining in effect an unduly broad rule against dis- tribution of union literature, and by forbidding such dis- tribution, as well as any solicitation on behalf of the Union, in order to impede the organization of its em- ployees, Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and has engaged in and is engag- ing in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 2. By refusing to transfer Shook and Meece on August 1, and by discharging them and Rollins, Mahaffey, and Wheeler because of their union activity, Respondent has violated Section 8(a)(3) and (1) of the Act. 3. By discharging Wheeler, Shook, and Meece for union activity, Respondent interfered with the election of August 23 and 24. RECOMMENDED ORDER Upon the entire record in the case and the foregoing findings of fact and conclusions of law, it is recommended that Respondent , Winchester Spinning Corp., Asheville, North Carolina, its officers , agents, successors , and as- signs, shall be required to: 1. Cease and desist from: (a) Discouraging membership in United Textile Work- ers of America , AFL-CIO, or in any other labor or- ganization , by discriminating against employees in regard to their hire or tenure of employment or any term or con- dition of employment. (b) Threatening employees that it will visit reprisals upon them for engaging in union or concerted activities. (c) Coercively interrogating employees concerning their union activities or those of other employees. (d) Soliciting employees to repudiate the above-named Union or any other labor organization. (e) Promulgating or maintaining in effect ( 1) any rule against union solicitation or distribution of union litera- ture, which is designed solely to impede the organization of its employees , (2) any rule against such distribution in nonwork areas during nonworking time. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization , to form, join , or assist the above-named Union , or any other labor organization , to bargain collec- tively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action , which is deemed necessary to effectuate the policies of the Act: (a) Rescind the no-solicitation and no-distribution rules posted on May 1 I , 1966, insofar as they apply to union activity. (b) In the manner prescribed in the section of this Decision entitled "The Remedy," offer to Blanche Rol- lins, Edna Louise Mahaffey, James B. Meece, Fred Shook, Jr., and John E. Wheeler immediate and full rein- statement to their former or substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges. (c) Make whole the said employees , in the manner set forth in the section of this Decision entitled "The Remedy," for any loss of pay they may have suffered by reason of Respondent's discrimination against them. WINCHESTER SPINNING CORP. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (e) Post at its plant in Asheville, North Carolina, co- pies of the attached notice marked "Appendix."86 Copies of said notice, to be furnished by the Regional Director for Region 11, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecu- ve 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 11, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. 117 IT IS FURTHER RECOMMENDED that those allegations of the complaint as to which no violation has been found be dismissed. With regard to Case I1-RC-2395, it is hereby recom- mended that: (1) The challenge to the ballot of Martin L. Conner be sustained. (2) The ballots of Edna Louise Mahaffey, John E. Wheeler, James B. Meece, and Fred Shook, Jr., cast in the election of August 23 and 24, be opened and counted, and that, if it is determined, after counting these and the other challenged ballots ordered by the Regional Director to be counted, that the Union has received a majority of the valid votes cast in such election, the Union be cer- tified as the representative of Respondent's employees in the unit stipulated to be appropriate. (3) If, after counting all the ballots cast by eligible voters, it is determined that there is no majority for the Union, the election be set aside and the representation case be remanded to the Regional Director for Region 1 I with instructions to conduct a new election at such time as he deems that circumstances permit a free choice of a bargaining agent. X8 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order " shall be substituted for the words "a Decision and Order " 11 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respon- dent 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 order to effectuate the policies of the National Labor 427 Relations Act, as amended, we hereby notify our em- ployees that: WE WILL NOT discourage membership in United Textile Workers of America, AFL-CIO, or any other labor organization by discriminating against employees with regard to their hire, tenure, or any other condition of employment. WE WILL NOT threaten our employees with reprisals for concerted activities, coercively inter- rogate our employees about their union activities or sentiments or those of other employees, solicit our employees to repudiate any labor organization, publish or maintain in effect any rule limiting solicita- tion or distribution of literature on behalf of a union in order to impede the organization of our em- ployees, or prohibit such distribution in nonwork areas during nonworking time. WE WILL rescind our no-solicitation and no-dis- tribution rules promulgated on May 11, 1966, insofar as they apply to union activity. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form, join, or assist United Textile Workers of America, AFL-CIO, or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mu- tual aid or protection, or to refrain from any or all such activities. WE WILL offer Edna Louise Mahaffey, Blanche Rollins, John E. Wheeler, James B. Meece, and Fred Shook, Jr., immediate and full reinstatement to their former or substantially equivalent positions, and make them whole for any loss of pay suffered by reason of the discrimination against them. All our employees are free to become, remain, or refrain from becoming or remaining members of United Textile Workers of America, AFL-CIO, or any other labor organization. WINCHESTER SPINNING CORP. (Employer) Dated By (Representative) (Title) Note: We will notify any of the above-named em- ployees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon ap- plication in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1624 Wachovia Building, 301 North Main Street, Winston- Salem, North Carolina 27101, Telephone 723-2911.