Collins & Aikman Corp.

620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Collins & Aikman Corporation and International Union of District 50, Allied and Technical Workers of the United States and Canada.' Case 11-CA-4085 December 31, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On August 5, 1970, Trial Examiner Samuel Ross issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, and the entire record in the case, and hereby adopts the findings,2 conclusions, and recommendations of the Trial Examiner.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner and hereby orders that Collins & Aikman Corporation, Farmville, North Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. I The Charging Party's name has been amended herein to conform with amendments in its constitution 2 These findings are based, in part, upon credibility determinations of the Trial Examiner to which the Respondent has excepted After careful review of the record, we conclude that these credibility findings are not contrary to the clear preponderance of all relevant evidence Accordingly, we find no basis for disturbing these findings Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) 3 Though we adopt the Trial Examiner's findings that the interrogation of employees by Respondent's Supervisors Grey, Pittman, and Hardison violated Section 8(a)( I) of the Act, we do not consider it necessary to these findings to apply the standards set forth in Stmksnes Construction Co, Inc, 165 NLRB 1062 As the Trial Examiner himself points out, these standards are to be applied where an employer is faced with a union claim of majority status and a demand for recognition, neither of which existed in the instant case In addition to the other cases cited by the Trial Examiner, we rely on the rationale of Union News Company, 112 NLRB 420 Although Chairman Miller agrees with the Trial Examiner that the speech made to employees on November 3, 1969, by Plant Manager Oxford violated Section 8(a)(I) of the Act, he would not adopt the Trial Examiner's finding that the speech exceeded permissible limits set forth in The Little Rock Downtowner, Inc, 143 NLRB 887, enfd in part 341 F 2d 1020 (C A 8), and Orkin Exterminating Company of Florida, inc, 152 NLRB 83, enfd 379 F 2d 972 (C A 5) TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE SAMUEL Ross, Trial Examiner. Upon a charge filed November 24, 1969, and amended on March 5, 1970, by International Union of District 50, United Mine Workers of America (herein called the Union), the General Counsel of the National Labor Relations Board issued a complaint on March 19, 1970, which alleges that Collins & Aikman Corporation (herein called the Respondent or the Compa- ny) had engaged in and is engaging in unfair labor practices within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the Act. The Respondent filed an answer to the complaint which denies the substantive allegations of the complaint. Pursuant to due notice, a hearing in this case was conducted before me at Greenville, North Carolina, on April 28 and 29, 1970. Upon the entire record, and my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. COMMERCE The Respondent is a corporation which at all times material herein owned and operated a plant at Farmville, North Carolina, where textiles and related products are manufactured. During the past 12 months, a representative period, the Respondent admittedly manufactured, sold, and shipped goods valued in excess of $100,000 from its plant in Farmville to points and places outside the said State I find on the above admitted facts that the Respondent is engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues Presented for Determination The issues presented by the pleadings and evidence in this case are whether or not the Respondent , during an organizational campaign by the Union, engaged in the following conduct in violation of Section 8(a)(1) and (3) of the Act: 1. Coercive interrogation of employees regarding their union membership, sympathies, and desires. 187 NLRB No. 84 COLLINS & AIKMAN CORP. 621 2. Threats of reduced wages, layoffs, or other reprisals to discourage support of the Union. 3. The discharge of one employee (Fred Dixie Wilson) for engaging in protected union or concerted activities. B. Interference With and Restraint and Coercion of Employees 1. The speech of Plant Manager Oxford In October 1969,1 the Union began a campaign to organize the Respondent's employees at its Farmville, North Carolina, plant. On November 3, shortly after this campaign commenced, Plant Manager Lamar Oxford separately convened all the employees on each of the Respondent's three shifts and delivered speeches which admittedly urged the employees to reject representation by the Union. According to a composite of the credited testimony of Oxford and employee witnesses, Oxford told the assembled employees that they undoubtedly were aware that the Union was trying to organize the plant, that they likely would be visited at their homes by union organizers in an attempt to get them to sign union cards like the one he had in his hand and exhibited to the employees; that the employees could refuse to let the union organizers into their homes or to talk with them if they so desired; that the Respondent was opposed to the representation of its employees by the Union and would do everything within its legal power to keep the Union out; that the textile industry (of which the Company was a part) could not afford to pay wages like General Motors and Ford; that the employees could not afford to take a strike, but that the Company could; that unions promise big wages, but produce nothing but strikes, bloodshed, turmoil, and corruption; that at the Respondent's Albemarle, North Carolina, plant the certification of a union was followed by an unsuccessful strike of 4 weeks accompanied by bloodshed, as a result of which each of the striking employees lost wages of about $400, and the union was no longer there; 2 that, if the Union came in to the Farmville plant, it would not work out to the best interests of the employees ; that union organizers "always" assure employees that the union cards they sign are confidential and would not be seen by anybody but the Union and the Labor Board; that such assurances are often false because unions attempt to obtain representative status on the basis of signed cards without an election; that when that occurs the cards are laid on the table at an open hearing, and "we [management] can see who signed the cards"; that those who signed cards would never get any advantage or preferred treatment over those who did not sign; that Respondent would discharge anyone who I All dates hereinafter refer to 1969 unless otherwise noted 2 See Collins & Arkman Corporation, 165 NLRB 678, enforcement denied in part , 395 F 2d 277 (C A 4) 3 The quotes immediately above are from the credited testimony of employee Wilson winders, another employee, testified in this regard that Oxford said that, "people who didn't sign a union card would not be fired " Oxford testified that he spoke from notes, but the notes were not produced or offered by Respondent, Oxford admitted that, like some of the employees who testified regarding the speech, he "could not recall exactly what was stated " Accordingly, my findings above are based partly on his testimony and partly on the testimony of employees Wilson, Moore, Edwards Jr, and Winders, to the extent to which I deem the testimony in solicited signatures to union cards in the plant during working time ; and that no one "ever got discharged because he did not sign a union card." 3 An employer unquestionably has a lawful right both to oppose the representation of his employees by a union and to express that opposition to them. He may not, however, in the guise of his right to free speech protected by Section 8(c) of the Act, impinge on the statutory rights of his employees guaranteed by Section 7 of the Act by threatening reprisals for joining or assisting a labor organization. The complaint in this case alleges that Oxford 's speech in part exceeded the proscriptions of Section 8(a)(1) of the Act , and, for the reasons hereinafter stated , I find merit in that allegation. The Respondent admittedly was and is opposed to the representation of its employees by the Union. It not only made the opposition known to its employees, but it also suggested to employees that they not sign union cards.4 Oxford clearly conveyed to the employees that notwith- standing union assurances that the identity of card signers would be kept confidential the Respondent had at its disposal the means for determining who were its loyal employees who did not sign cards, and who were not. The Respondent's motivation for telling its employees that it would know who signed cards clearly was to intimidate and discourage them from signing. Moreover, in this context, Oxford's further statement that no one "ever got discharged because he did not sign a union card," clearly conveyed an implied threat that the Respondent would learn the identity of those who did sign cards and that they could expect less favorable consideration or reprisals .5 I conclude that the Respondent thereby exceeded the bounds of free speech protected by Section 8(c) of the Act, and thereby interfered with, restrained, and coerced employees in the exercise of their right to Join or assist labor organizations, and violated Section 8(a)(1) of the Act. As found above, Oxford also told employees that the selection of the Union as their representative would gain them nothing but strikes, turmoil, and bloodshed, as it had at the Respondent's Albemarle plant, and that the Respondent could afford to take a strike but the employees could not. These statements in effect advised employees that a strike was the only means by which they could achieve increased wage gains which unions promised. Oxford's statements in this regard clearly were calculated to convey the message of the futility of union representation and tended to discourage support of the Union by employees. I find that the Respondent thereby further interfered with, restrained, and coerced employees in the this regard as reliable 4 Oxford testified that he told the employees that if they signed a card, "it might be difficult to get them unsigned" Employee Edwards, Jr, credibly testified that Oxford said, "he didn't want us to sign a card for the union " 5 In fact , several employees testified that they understood Oxford's statements to mean that if an employee signed a union card, the Respondent could find a pretext to fire him . I am satisfied, as Oxford testified , that no such actual threat was expressed by him However, I regard the statements found above which he did make as a none too subtle threat that card signers would be regarded less favorably by Respondent and could expect reprisals 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exercise of rights guaranteed by Section 7 of the Act and further violated Section 8(a)(I).6 2. Additional threats of reprisal After Oxford's speech, a number of Respondent's employees on the third shift visited the canteen during their coffeebreak and discussed what Oxford had said. Accord- ing to the uncontroverted and credited testimony of employee Fred Dixie Wilson, one (unidentified) employee said to Raymond Saunders, an admitted supervisor, "You can take my word for it. Sooner or later they are going to have a vote down here, and the union is coming in here." Saunders replied, "I will tell you one thing ... they might have a vote, you might sign one of those [union] cards, but if they [management] find it out, they won't fire you, they might not fire you then, but sooner or later they are going to find a way to discharge you." 7 Supervisor Saunders' statement, for which the Respondent bears responsibility, clearly constitutes coercion and restraint of employees in the exercise of their right to join or assist labor organiza- tions, and I therefore find that, thereby, the Respondent further violated Section 8(a)(I) of the Act. 3. Interrogation of employees regarding the Union a. Ernest Edwards, Jr., was employed at the time of Oxford's speech as a tuber in the inspection department. After Oxford's speech, Raymond Grey, an admitted supervisor, came up to Edwards while he was running his machine and asked Edwards whether he had received an invitation to a fish stew At that time, the only fish stew which Edwards knew anything about was one that had been "set up" by Mr. Carr, the Union's representative. Edwards, in reply, asked Grey, "What fish stew?" Grey did not elaborate, but merely said, "Forget it."" b. Edwards subsequently had occasion to visit the office on business, and as he was leaving Harvey Pittman, an admitted supervisor, told Edwards that he had heard he was for the Union. Pittman also asked Edwards what his opinion was of the Union. Edwards replied that he "had a wife and three kids to support," that "he needed his job," and that he "couldn't get involved in anything like that." Pittman replied that he believed Edwards. Pittman also told Edwards that at another company, International Paper, the advent of a union had resulted in a layoff and that he thought, "if we had a union out there, it would be the same way out there, like we wouldn't have the work that we have on account of the strike, something like that."9 c. Kenneth W. Winders was and is a leadman employed 6 The Little Rock Downtowner, Inc, 143 NLRB 887, 890 , enfd in this regard , 341 F 2d 1020 (C A 8), Orkin Exterminating Company of Florida, Inc, 152 NLRB 83, 93, enfd 379 F 2d 972 (C A 5) 7 Although a witness for Respondent , Saunders was not asked whether he made this statement and did not deny doing so 8 The findings above are based on Edwards ' credited testimony which was not controverted Grey was not called by Respondent to testify, and no explanation was offered for the failure to do so 9 The findings above are based on Edwards ' credited testimony which was not controverted Pittman was not called by Respondent to refute Edwards' testimony , and no explanation was offered for the failure to do so 10 The findings above are based on Winders' testimony which was not controverted Although present at the hearing, the Respondent did not call by the Respondent in the dye house on the third shift. At the time of Oxford's speeches to the employees, Winders' immediate and admitted supervisor was James Hardison. A few days after the speeches, Hardison instructed Winders to send his men into the dye house office one at a time, and then to come in last. Winders complied and sent his four men (batchers) to to the office as directed. When Winders finally made his entry, Hardison asked him if he would vote for the Union "if we had an election." Winders replied that "if we had an election right then, that I would not vote for the Union." Hardison then asked Winders whether any of the men had been talking about the Union. Winders replied that he "had heard everything for management so far." io d. Wylie F. Hinson, Jr., was hired by Respondent on December 8. During his preemployment interview by Thomas G. Bullock, the Respondent's personnel manager, Hinson was asked by Bullock what he "thought about unions," and Hinson replied that he "didn't care nothing [sic ] about them because I had seen them put people out of work" at another establishment." In respect to the recurring question of the lawfulness of interrogation of employees regarding their views about unions, the Board said in its decision in Struksnes Construction Co.. i2 In our view any attempt by an employer to ascertain employee views and sympathies regarding unionism generally tends to cause fear of reprisal in the mind of the employee if he replies in favor of unionism and, therefore, tends to impinge on his Section 7 rights. As we have pointed out, `An employer cannot discriminate against union adherents without first determining who they are.' [Citations omitted.] That such employee fear is not without foundation is demonstrated by the innumerable cases in which the prelude to discrimina- tion was the employer's inquiries as to the union sympathies of his employees. Accordingly, the Board in Struksnes adopted standards for determining when and how an employer, faced with a union claim of majority status and demand for recognition, may lawfully inquire about the union views and desires of his employees. The Board said in this regard: 13 Absent unusual circumstances, the polling of em- ployees by an employer will be violative of Section 8(a)(1) of the Act unless the following safeguards are observed: (1) the purpose of the poll is to determine the truth of a union's claim of majority, (2) this purpose is communicated to the employees, (3) assurances against reprisal are given, (4) the employees are polled by secret ballot, and (5) the employer has not engaged in unfair Hardison to testify and offered no explanation for the failure to do so 11 The findings and quotes above are based on Hinson's testimony which I credit Bullock denied asking any prospective employee whether he was a member of a union or how he felt about unions He admitted, however, that in his interview with prospective employees he told them about the Respondent 's so called "open door policy," and that employees "don't need an outside company to help you, you don't have to pay someone else to represent you " I do not credit Bullock's denial because (1) I regard Hinson as a credible witness who, so far as the record discloses, had no interest in this proceeding , and because (2) Bullock admitted that the subject of representation by outsiders (a term frequently used to refer to unions) was regularly discussed by him with applicants for employment iz 165 NLRB 1062 11 Struksnes Construction Co, supra, 1063 COLLINS & AIKMAN CORP. 623 labor practices or otherwise created a coercive atmosphere.14 The Respondent's interrogation of employees in this case met none of the Struksnes standards. So far as the record discloses, the Union had neither made a claim of majority status or demanded recognition of Respondent. The inquiries could not therefore have been made to determine the truth of a claim which had not been made. No purpose for the interrogation was communicated by any of the supervisors to the employees whom they questioned, and no assurances were given against reprisal. The interrogation occurred in the coercive atmosphere engendered by Oxford's antiunion speech, which also, as found above, violated Section 8(a)(1) of the Act. Indeed, the interroga- tion clearly instilled fear in the mind of employee Edwards, at least, for he replied to Pittman's interrogation that he could not afford to get involved with the Union because he had a family to support and needed his job, and he responded to Grey's interrogation by falsely professing ignorance of the Union's fish stew. Moreover, as noted above, Hardison interrogated employees singly, in the privacy of the dye house office.15 For all the foregoing reasons, I find that the interrogation of employees by Respondent's supervisors Grey, Pittman, and Hardison, and the preemployment interrogation of Hinson by Bullock, constituted interference, restraint, and coercion of employees in the exercise of Section 7 rights and that thereby the Respondent engaged in further unfair labor practices within the meaning of Section 8(a)(1) of the Act.16 C. The Alleged Discriminatory Discharge of Fred Dixie Wilson Fred Dixie Wilson was hired by the Respondent in July 1966 to operate a tow motor, also known as a forklift. His duties consisted of transporting rolls of greige cloth produced by the doffer knitting machines to one of the Respondent's in-plant warehouses, placing the rolls into appropriate bins or bays, recording where they were so placed, keeping the warehouse clean, and, on written orders prepared by a dye lots writer, transporting the rolls of greige cloth from the warehouse to the dye house for further processing by the batchers who work in the latter department. Wilson worked at this job on the third shift during the hours of 11 p.m. and 7 a.m. It is undisputed that an important aspect of Wilson's job was "to keep the batchers going;" that is, supplied with cloth to dye.17 In October 1969, Wilson and a number of other third 14 These standards have been uniformly approved by the courts. N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 609; N.L.R.B. v. J. M. Machinery Corporation , 410 F.2d 587 , 589-590, In. 3 (C.A. 5): N.L.R.B. v. C & P Plaza Department Store, 414 F.2d 1244, 1248-1249 (C.A. 7); N.L.R.B. v. Historic Smithville Inn, 414 F.2d 1358, 1362 (C.A. 3). 11 Cf. Bourne Co. v. N.L.R.B., 332 F.2d 47 (C.A. 2). 'a Barry Industries, Inc., 181 NLRB No. 159. In respect to Bullock's employment interview interrogation , see Tesoro Petroleum Corporation, 174 NLRB No. 135; Gerbes SuperMarkets, Inc., 176 NLRB No. I (TXD). 17 The Respondent also employed one tow motor operator on each of its other two shifts who performed the same duties as Wilson. 18 The record fails to disclose that any employee either distributed handbills, solicited signatures to union cards , or otherwise actively participated in the Union 's campaign. 19 The quotes are from Wilson 's testimony which I credit because I shift employees were in the Respondent's canteen in the plant and observed that the machine which heats sandwiches appeared not to have been cleaned for a couple of weeks. One unidentified employee, commenting on this condition, said, "this place needs a union ... to get it straightened out." Another suggested that they could "get a union in here" if 10 or 15 people "signed a paper," and they would then "have to vote to see whether we get a union or not." "A paper" was prepared and the seven or eight employees who were present, including Wilson, signed it. Then, since Wilson as tow motor operator moved around the plant and had access to a number of departments, he was asked to and agreed to take the paper around and secure additional signatures. Wilson complied and "got approximately 15 names signed on there," but he either "left it [the paper] on the tow motor, or lost it." In any event, shortly thereafter the Union commenced its campaign to organize the Respondent's Farmville employ- ees. Insofar as the record discloses, the campaign was conducted by "union organizers" and not by employees.18 As found above, on November 3, shortly after the Union's organizational campaign began, Plant Manager Oxford delivered antiunion speeches to the Farmville plant employees. After Oxford's speech to the third-shift employees, a number of them visited the canteen during the coffeebreak, and the principal subject of discussion was the speech and the Union. Supervisor Raymond Saunders was sitting at a table in the canteen "right next to" Wilson when employee Arthur Gene Moore walked in and said to Wilson, "I know you are for it [the Union] because you signed that paper." Wilson did not reply.19 On about November 12, the Union's representatives distributed three pieces of union literature as a package to the employees at the plant entrance as they came to work. That night Wilson asked Supervisor James Hardison whether he had received "one of those C & A Bulletins," and Hardison replied that he had. Wilson asked Hardison what he thought about it, and Hardison replied that he had not given it much thought. Hardison then asked Wilson "what did I think about it." Wilson replied that he had not given it much thought either, and he added, "that I believed it would be a good thing for a poor man, because it was the only thing he had going for him." During most of Wilson's employment by Respondent, his immediate supervisor was Wilbur Counterman. However, Counterman was not in the plant during most of the third shift when Wilson worked because his hours of employ- ment were from 6:30 a.m. to 3:30 p.m. Around the first of November, J. T. Franks, who was the Respondent's regard his testimony as generally reliable . Moore's testimony regarding what he said was not precisely the same as Wilson 's, but nevertheless was substantially to the same effect . Saunders admitted being at the same table with and right next to Wilson on this occasion, but he denied hearing Moore, or any one else, say that Wilson was "in the Union," or that he "liked the union" or "felt sympathy for it." Saunders further testified that, on the occasion in question , Wilson said "that he didn't think the Union would do this plant any good , because we already had good benefits." In the light of Saunders' admission that he was at the same table when Moore spoke to Wilson, I do not believe his denial that he heard what Moore said. Moreover, in view of Wilson 's prounion activity in soliciting signatures to the "paper," as found above , I regard the procompany and antiunion statements attributed by Saunders to Wilson as inherently implausible, improbable, and unworthy of belief . Furthermore, I regard Saunders' testimony as generally unworthy of reliance. 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD department head over the warping department, was appointed to also head up the shipping and receiving departments and the warehouse. He thus became the top supervisor of the department of which Counterman was Wilson's immediate supervisor. Like Counterman, Franks' normal hours of employment were in the daytime, usually from 5 a.m. to 4 p.m. On the morning of November 13, Franks asked Wilson whether he had attended the meeting "that Oxford held the other night." Wilson asked "what meeting?" Franks replied, "The meeting Mr. Oxford held about the Union." Wilson then answered, "I would rather not say, Mr. Franks." Franks then smiled and walked off. On the following morning, November 14, Wilson was called to Franks' office. According to Wilson's credited testimony which was not refuted by Franks, when he arrived there, Franks told him in Counterman's presence that he had received a complaint that he had not "been taking rolls of cloth to the batcher[s], and that they are constantly giving out, and that you weren't delivering them over there." Wilson asked, "who complained," and Franks replied, "the third shift supervisor." Wilson asked Franks to call the supervisor in "right now," and he said, "I don't believe he will say that because I do that job better than any other job out here." Franks did not call the supervisor. Instead he told Wilson to sign a "warning slip" which had already been prepared, and he said that "he would check on it further." Franks also told Wilson that if he "didn't sign the warning slip, well I might have to replace you, because, Dixie,20 you are on your own out there." Wilson then signed the slip despite his assertion that the reprimand was unwarranted and his denial that the batchers "ran out of material." 2i Eight hours later, on the morning of Saturday, November 15, Wilson again was called into Franks' office, and in the presence of his supervisor, Counterman, he was told that he was being discharged because he had put a roll of style 700 cloth "in the wrong bay" of the warehouse. According to Wilson's uncontradicted and credited testimony, the following conversation occurred during his terminal interview with Franks and Counterman.22 Franks told Wilson, "Dixie, I know I haven't been out here in the warehouse long, but, you misplaced a roll of cloth.23 We are going to have to replace you because you just can't keep going on like this." Wilson asked, "Mr. Franks, was that a [style] 700 strand of cloth?" Franks replied, "My mind is made up. I am going to let you go." Wilson told Franks and Counterman that he had put the roll of style 700 cloth in other than its usual bay because there was no room for it in its regular place of storage. Wilson also told Franks that the other tow motor operators had placed rolls of cloth in other than their regular bays. Franks replied that there was the matter of the warning slip which he had given Wilson the day before and that he also had in his files "other warning slips" of Wilson's for "cloth being misplaced." Wilson said that the prior warning slip was given to all the tow motor operators and that "we all got one together". Franks replied that "he didn't have anything in his file of nobody else [sic] but me getting one." Wilson asked Franks and Counterman "to go and look in the warehouse" and see if they "thought it was messed up," but "they would not go." Wilson begged Franks "not to let me go." He told Franks he had five children at home, and that it would be hard for him to get a job because of his "back condition" and limited education. Wilson said, "I've been working hard," and he "begged him [Franks] to give me another chance," or to "transfer me." Franks said he had no authority to transfer "anybody," but he would help Wilson "any way he could to get a job" somewhere else. Finally Franks offered Wilson his pay and asked him to sign a slip, but Wilson refused to either accept the money or sign. It was then about 7:30 a.m. when Counterman escorted Wilson to the door and out of the plant. About 8 a.m. on November 15, Wilson returned to the plant to see Personnel Manager Thomas G. Bullock who was at home at that time. However, his secretary telephoned Bullock and he came to the plant shortly thereafter, visited briefly with Franks in the plant, and then met with Wilson. He asked Wilson how he "was doing," and Wilson said that "I wasn't going so good." Wilson asked Bullock, "Do you know about me being discharged?" Bullock answered, "Yes, I know about it. I'm sorry it happened, Dixie." Wilson then asked Bullock if "instead of discharging me, how about laying me off or letting me resign or something? You know, that [a discharge] is going to hurt me from getting a job somewhere, because of my back condition being bad, [and] because my education is bad." Bullock replied, "Well, I can't help it," and he added, "Dixie, you need this money, go ahead and sign the paper and take it." Wilson refused. Bullock then questioned Wilson about how his family "was doing," where he lived, and suggested a number of places by name where Wilson "could get a job." He also told Wilson that he would "try to help me get a job anywhere," and that if he were called he would give Wilson "a good character [reference]." Wilson then asked Bullock, "How about replacing me somewhere else in the plant?" Bullock replied that he could not, because Franks had noted on Wilson's termination slip (TX Exh. 1) "Do not rehire." Bullock also told Wilson that, but 20 Dixie, Wilson's middle name, was generally used by most of the witnesses when referring to him 21 The warning slip (Resp Exh 1) read as follows 21/ The warning slip ( Reap Exh. 1 ) read as follows PROBATION EMPLOYEE RELATIONS REPORT NAME Fred Dixie Wilson CLOCK NO DATE 11-14-69 REPORT OF - COMMENDATION ABOUT - QUALITY OF WORK _ TRANSFER EMPLOYEE PROBLEM _ QUANTITY OF WORK _ SAFETY OR COMPLAINT x ATTENDANCE _ CONDUCT x WARNING _ VIOLATION OP RULE _ MISC LAY OFF ( DISCIPLINARY) - CONVERSATION (MISC.) PROBLEM (State Briefly the Nature of the Problem) Dye house complaining about not getting cloth to Batchere on 3rd shift like they should REMARKS ( Action Taken or Solution) Dixie must keep his lob up - r he will be replaced EMPLOYEE ' S REACTION : Dixie says he takes every Dye lot they ask him to take EMPLOYEE Fred D . Wilson SUPERVISOR W. E Counterman. Jr. DEPARTMENT MGR. J T . Franks RES. MGR. S. Evans 22 Franks, although a witness for Respondent who testified after Wilson, did not testify regarding what was said at this meeting 21 On cross-examination, Wilson testified, "He [Franks) told me I put a roll of cloth in the wrong bay " COLLINS & AIKMAN CORP. for Franks' notation, he "probably could have placed [Wilson] somewhere else." Finally, Bullock wrote up an "Exit Interview" slip (Resp. Exh. 4) and asked Wilson to sign it and take his money. Wilson refused to sign, and, when asked by Bullock why not, he replied, "Because I know it isn't so." 24 After Wilson refused to sign, Bullock added the following at the bottom of the exit interview form: Interviewer's Comment Employee would not sign because he thought he did hisjob well. Interviewer's Signature Thomas G. Bullock Bullock also credibly testified and gave the following additional details of the terminal interview which Wilson did not mention: (a) that when Wilson told him that he did not know what to tell prospective employers as to the reason for his discharge, he told Wilson, "Well, Dixie, in my opinion it was poor judgement on your part. You should not have placed the cloth where you did, because that wasn't where it belonged"; and (b) that when Wilson asked him, "Don't you think I've done a good job here?" he told Wilson, "Up to a point you did a good job, but later here you have fallen down." Bullock also credibly testified that, just before his terminal interview with Wilson, he had spoken to Franks in the plant and that he was told by Franks that Wilson was discharged for the single reason that on successive days, "he had misplaced two rolls of cloth," or more "specifically [that he failed] to do ajob as he was instructed to do it, and to place the rolls where he had been instructed to place them." At the conclusion of his interview with Wilson, Bullock gave him the following letter: To Whom It May Concern: Should the holder of this apply for employment I would appreciate it if you would contact me regarding his termination with us. Thomas G. Bullock Pers. Mgr. Collins & Aikman Farmville, N. C. Wilson has not since been offered reemployment by Respondent. About a month later, Kenneth Biggs, a friend and prospective employer of Wilson, called Bullock and inquired about the reasons for Wilson's termination, and, according to Bullock's credited testimony, he told Biggs that Wilson was discharged "because he used poor 24 The findings and quotes above are based on Wilson's credited testimony Wilson also testified that the exit interview form which he was asked to sign stated that his attendance was below average, but, in the light of the form in evidence, I am persuaded that he was mistaken, and I do not credit his testimony in this regard, notwithstanding that I was favorably impressed by his demeanor and the reliability of his testimony in most respects Bullock's version of his terminal interview with Wilson was not significantly different from Wilson's, except for Bullock's testimony, which I credit, that he neither wrote on the terminal interview form, or said to Wilson or anyone else, that Wilson's attendance was poor 25 Biggs testified that Bullock also told him that Wilson had been "staying out of work" and "didn't show up on time," and that "he had been messing around with a union group" Bullock denied that he said anything to Biggs either about poor attendance on the part of Wilson or about a union I regard Bullock's testimony in this instance as more reliable than Biggs', especially since, at the time of this conversation, a 625 judgment" and because "his work was sloppy" and not "what we expected," and that "Mr. Wilson had done a good job up until that time." Bullock explained that by the term "that time," he was referring to "just before he [Wilson ] was terminated." 25 D. Concluding Findings The complaint herein alleges that Wilson's termination and the failure and refusal to thereafter reinstate him were motivated by his concerted activities with other employees for the purpose of collective bargaining and other mutual aid and protection. The Respondent denied that it had any knowledge or suspicion when Wilson was fired that he "was in any way involved with the Union," or had "any sympathies with the Union," and it similarly denied that the Union had "anything whatever to do with his [Wilson's] discharge," 26 I regard Respondent's denial of knowledge or suspicion of Wilson's prounion "sympathies" and tendency as unworthy of credence or belief for the following reasons: As found above, Wilson had solicited the signatures of employees to "a paper" whose purpose was to interest a union in commencing an organizational campaign. Wilson had conducted that solicitation in the plant. Subsequently, after union organization commenced and Plant Manager Oxford delivered his antiunion speeches to the employees, at least two of Respondent's supervisors obtained direct knowledge that Wilson was a union supporter: Saunders, when Moore, in his presence, told Wilson that he knew Wilson was for the Union because he had signed "that paper"; and Hardison, to whom Wilson said that he believed a union was "a good thing for a poor man because it was the only thing he had going for him." Moreover, Franks also had reason to believe that Wilson was a union supporter. Thus, when Franks asked Wilson about November 13 (2 days before he fired him) whether he had attended Oxford's meeting with the employees, Wilson had replied, "I would rather not say." It is reasonable to infer, as I do, that Wilson's refusal to discuss Oxford's antiunion speech must have stamped him as a supporter of the Union. I conclude from the foregoing that the Respondent (and Franks) knew or suspected that Wilson was a supporter of the Union.27 Prior to his termination, Wilson had been employed by Respondent at the samejob for about 3 years. According to his uncontroverted and credited testimony, Wilson had "never" received any complaints from either James charge that Wilson's discharge was an unfair labor practice already had been filed and served on Respondent Bullock was aware of it and thus would not likely have said what Biggs attributed to him I therefore credit Bullock's denials and do not believe Biggs in this regard 26 The quotes are from the testimony of Franks who fired Wilson 27 In fact, as Wilson frankly acknowledged in his affidavit to the Board (Resp Exh 2), he did not sign a union card until several days after his discharge However, if he was fired by Respondent because of its belief that he was a prounion employee, it is immaterial that he was not a union member, for it is the animus and actions of the Respondent which are at issue in determining whether Wilson's discharge was discriminatory and not whether he engaged in union activity N L R B v Ritchie Mfg Co, 354 F 2d 90, 98 (C A 8), N L R B v American Casting Service, Inc, 152 NLRB 172, 179, enfd 365 F 2d 168, 174 (Employee McGarrah) (C A 7), Ridge Tool Co, 102 NLRB 512, 513, enfd 211 F 2d 88 (C A 6) 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hardison, the third-shift supervisor of the dye house batchers, or from Kenneth W. Winders, their leadman, that he had failed to keep the batchers supplied with cloth. Moreover, notwithstanding that during the course of his 3 years of employment Wilson admittedly had received three or four warning slips ,28 until the incidents for which he assertedly was discharged he was regarded by the Respondent as a satisfactory employee. Thus, as found above, during Wilson's terminal interview , Personnel Manager Bullock conceded to Wilson that he had done "a good job" "up to a point .. . but later here you have fallen down" ; and in a conversation a month later with prospective employer Biggs, Bullock told Biggs, inter aha, that "Mr. Wilson had done a good job up until that time," and Bullock explained that by the term "that time," he referred to "just before he [Wilson ] was terminated." Despite Wilson's prior satisfactory record, Franks com- menced finding fault with Wilson's work and fired him immediately after the Respondent obtained knowledge of Wilson's prounion frame of mind . In the light of the coincidence of Respondent 's asserted dissatisfaction with Wilson's work with its acquisition of knowledge of his prounion sympathy, and the Respondent's undisputed hostility to the Union , I find that a prima facie case is established that Wilson's discharge was motivated by antiunion considerations. According to Franks, three incidents, described and considered hereinafter, all of which allegedly occurred during the third shift on the nights of November 12 and 13, motivated his decision to fire Wilson. 1. The first reason , according to Franks , was that Wilson was assigned on about November II or 12 to clean up the warehouse . The work consisted of straightening up and separating styles of cloth in the warehouse . Admittedly, the instructions to Wilson in this regard were not given by Franks, but by Counterman , Wilson's immediate supervi- sor. Franks' only testimony regarding Wilson's alleged shortcoming in respect to this assignment was that "it wasn't done," and nothing more . Significantly , Franks did not testify that his conclusion in this regard was based on personal knowledge or inspection of the warehouse However, Wilson credibly testified that on the morning of November 13, he was complimented and told by Franks "that the warehouse was looking real good." 29 In addition, Wilson also credibly testified without contradiction that on the following morning (November 14) Counterman told him that he "had done a good job in moving that stack of cloth," and that "the warehouse was looking good."30 Moreover, although (as appears infra) Wilson received a written reprimand (Resp Exh 1 ) that same morning of November 14 for assertedly failing to keep the dye house batchers supplied with greige cloth, neither the reprimand, 2N The nature of these prior warnings does not appear in the record since the Respondent did not offer any of them in evidence 29 Franks denied that he complimented Wilson on the condition of the warehouse, but I do not credit his denial for I regard his testimony, and especially his asserted reasons for discharging Wilson, as generally unworthy of credence 30 The Respondent did not call Counterman as a witness, notwithstanding that he assertedly participated in the decision to fire Wilson, and as Wilson's immediate supervisor for almost 3 years, he obviously had the best knowledge of Wilson's performance as an employee No explanation was offered by Respondent for its failure to call nor the record, discloses that he ever was admonished for failure to "straighten out" the warehouse or keep it clean. I conclude from all the foregoing, including Wilson's credited testimony and the failure of Respondent to call Counterman as a witness, that I can place no credence in Franks' testimony that Wilson failed to straighten out the warehouse as directed. 2. The second reason asserted by Franks for Wilson's discharge was the latter's asserted failure to deliver sufficient cloth to the batchers in the dye house to keep them busy during the third shift. The only testimony of the Respondent about this alleged failure of Wilson to perform his job properly was that given by Franks. According to Franks, he received a complaint from David Futrell, the department head of the dye house, that Wilson had failed to deliver cloth to the batchers. Franks admitted that Futrell "is not there on the third shift," and that he works "day times." Franks also admitted that Futrell had told him that he had received the complaint "from his third shift people," and that he "assumed" that would be Hardison, the supervisor of the dye house batchers. Franks further admitted that he had "never had any discussions with Mr. Hardison about this man, Wilson's job." Neither Futrell, who assertedly made the complaint about Wilson, nor Hardison who admittedly was present "in the courtroom," were called by the Respondent to testify regarding Wilson's alleged failure to keep the batchers supplied with cloth, and no explanation was offered for the failure to do so. I infer therefrom that, if called, their testimony would have been unfavorable to the Respondent 31 There is, thus, no probative testimony in the record that Wilson failed to supply cloth to the batchers for which he was given the written reprimand on November 14. In contrast to Franks' uncorroborated testimony of a complaint about Wilson which he admittedly did not investigate either before or after he issued a reprimand to him,32 the record contains affirmative uncontradicted and credited testimony that Wilson properly performed this admittedly important aspect of his job. Thus, Kenneth Winders, the leadman of the third-shift batchers, credibly testified without contradiction, as follows: In the ordinary "chain of command," a hatcher with a complaint about his job "would come to me," and he, Winders, would report the complaint to his "immediate supervisor," Hardison; Winders had received no complaint from any batcher that Wilson was not supplying him with cloth; Winders "never made any complaint about Dixie's performance", about 7 a.m of November 14, before Winders found out "that Dixie had been written up," Hardison asked him "if Dixie was bringing the cloth to the batchers like he was supposed to," and Winders replied "that as far as I was concerned, he was doing okay"; Winders learned about "the write-up" Counterman as a witness The failure to do so permits the inference, which I make, that his testimony would not have been favorable to the Respondent N L R B v Sam Wallick, et at, d/b/a Wa!lick and Schwalm Company, 198 F 2d 477, 483 (C A 3), 11 Wigmore Evidence § 285, cf O F Shearer & Sons v Cincinnati Marine Service, Inc, 279 F 2d 68, 73-74 (C A 6) ti See cases cited in fn 30, supra 12 Franks testified in this regard that he had not "yet" discussed Wilson's job performance with Hardison and that he learned only "today" that Hardison was the supervisor of the hatchets on the third shift COLLINS & AIKMAN CORP from Wilson on the morning of November 14 as he and Wilson were leaving the plant; at 11 p.m. that night when Winders returned to work, he asked Hardison whether he knew that "Dixie had been written up for not bringing cloth to the dye house," and that "his [Hardison's] name was mentioned in the write-up, the reason for the write-up"; and Hardison replied "that he knew nothing about it." 33 In the light of all the foregoing, including the failure of Respondent to call either Futrell or Hardison to testify, I do not believe Franks' uncorroborated testimony that he received a complaint that Wilson was not supplying cloth to the batchers, and I find that there was no basis for such a complaint. Moreover, the absence of any investigation by Franks, and his preparation of a written reprimand even before he spoke to Wilson about his alleged failure to supply cloth to the batchers, persuade me that the assertion of this baseless reason, the written reprimand therefor, and the previously considered and discredited reason asserted for Wilson's discharge, all were part of a plan designed by Respondent to provide pretexts to support Wilson's later termination and to conceal the real motivation for that action. 3. The third and final reason which assertedly triggered Franks' decision to fire Wilson was as follows: Franks testified that on the afternoon of Friday, November 14, after he had reprimanded Wilson in writing for not keeping the batchers supplied with cloth, he received a report that two rolls of style 700 cloth could not be found in the warehouse; that "we finally hunted and found it," not where Wilson assertedly had recorded it to be, but in another bay in the warehouse; that he accordingly decided, in the light of Wilson's two recent shortcomings, to "then and there" fire Wilson without "further investigation" or giving him an opportunity to explain; that he instructed Counterman, Wilson's supervisor, "to go put somebody on Dixie's job, and that we would get his pay and everything, and then the next morning tell him." Pursuant to that decision, Franks "checked the hours" on Wilson's time- card, had Wilson's pay computed by the accounting office, received the amount of his pay in cash, permitted Wilson to report that night and work the entire shift of 8 hours, and then called Wilson into his office at 7 a.m. on Saturday, November 15, and notified him in Counterman's presence that he was discharged. Like the other two reasons ascribed by Franks for terminating Wilson, I regard this final reason also unworthy of credence or belief. I base this conclusion on the following considerations: a. When Wilson was notified of his discharge on November 15, he was told by Franks that it was because he had "misplaced a roll of cloth," "put a roll of cloth in the wrong bay." When Personnel Manager Bullock spoke to Wilson about 45 minutes later after previously conferring with Franks, Bullock admittedly told Wilson that the reason for his dismissal was "poor judgment. You should not have placed the cloth where you did, because that was 33 In addition to Winders, Arthur Gene Moore, a third-shift hatcher in the dye house, testified that he knew of no failure by Wilson to supply the hatchets with cloth 34 The variance between Wilson's testimony that he was told by Franks about a single roll of cloth that assertedly had been placed in the wrong bay and Respondent's testimony that he was discharged because two rolls 627 not where it belonged." Bullock further testified in this regard as follows: TRIAL EXAMINER: Tell us why was Mr. Wilson discharged? THE WITNESS: He was discharged for poor quality of work. TRIAL EXAMINER: What do you mean by poor quality of work? THE WITNESS: Well, his quality was not up to the standard that was expected by the Company in that department. TRIAL EXAMINER: What were the standards at that time of the company in that department? THE WITNESS: Specifically to do ajob as he had been instructed to do it, and to place the rolls where he had been instructed to place them. [Emphasis added.] n TRIAL EXAMINER When you were told by Mr. Franks about Mr. Wilson's discharge, did Mr. Franks tell you that he was being discharged because he put a roll or rolls of cloth in the wrong bay? THE WITNESS: He said it was because he had misplaced two rolls of cloth.34 [Emphasis added.] It is obvious from the foregoing that the nature of the alleged error for which Wilson was told he was being fired was that he had put one or two rolls of 700 strand cloth in a bay or bays other than the one regularly assigned to that style. It is undisputed that Wilson had admitted to Franks that he put a roll in the wrong bay because there was no room in the other bay.35 However, at the hearing in this case Franks gave a different reason for Wilson's discharge than that which was conveyed to Wilson. Thus, Franks admitted that "it was okay" for Wilson to put cloth in bays other than their assigned or regular place, that where Wilson had "put it was fine," but that he had fired Wilson because he had not correctly recorded on the "cloth tickets (also known as the "hard copy") and his "Greige Location" reports, the places where he had put the two rolls.36 This shift in the reason for Wilson's discharge from one of storing rolls of cloth in other than their assigned spaces to one of an error in record keeping, though not in itself dispositive, suggests that the reason now advanced is unworthy of credence.37 b. As noted above, Wilson testified that he was told by Franks at the time of his discharge that he had "put a roll of [700 strand] cloth in the wrong bay," but Franks testified that the reason for the discharge was that Wilson had improperly recorded where he had placed two rolls of that cloth. Franks, the Respondent's only witness in respect to Wilson's alleged improper records, testified that the errors were discovered during the afternoon of November 14, that he admittedly did not go to the warehouse "to hunt" for the two rolls of cloth which Respondent assertedly "couldn't find," that he concededly had no personal knowledge other of cloth could not be found will be considered, infra 5 See Resp Exh 3 36 The subject of the cloth tickets and Wilson's allegedly incorrect reports will be considered, infra 11 NLRB v Georgia Rug Mill, 308 F 2d 89, 91 (C A 5), NLRB v Schell Steel Products, Inc, 340 F 2d 568, 573 (C A 5) 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD than hearsay that the cloth was not where Wilson had recorded it to be, and that his information as to where the rolls of cloth had been found assertedly was obtained from Counterman who allegedly had "hunted for the cloth," and from Wilson's greige location reports dated November 13 and 14 38 These were reports maintained by Wilson while he worked on which he recorded in red ink what and where he had stored in the warehouse on the nights in question According to Franks, he received Respondent's Exhibits 8 and 9 from Counterman on Friday afternoon, November 14, "at the same time " However, an examination of these exhibits clearly reveals that Respondent's Exhibit 9 is a record which Wilson prepared during his shift which started on November 14 at I 1 p in and ended the following morning at 7 a in and thus was not in existence on Friday afternoon when Franks assertedly saw it 39 I conclude from the foregoing that Franks' testimony in respect to having seen Respondent's Exhibit 9 when he decided to fire Wilson is unworthy of credence or belief Moreover, in the light of Counterman's black checkmarks alongside practically every item recorded by Wilson on Respondent's Exhibit 9 and the notation on the top of that report, "verified by hard copy T G B 11 / 17" (Bullock' s initials), I further conclude that after the Respondent fired Wilson at 7 a m on November 15 Counterman and Bullock checked Wilson's last report seeking evidence to justify the action that already had been taken c There is, moreover, no probative evidence that Wilson's notations on Respondent's Exhibits 8 and 9 as to where he had placed the two rolls of 700 strand cloth were not correct Counterman, who allegedly "hunted for the cloth" and "finally found" them in bays other than where Wilson had recorded them to be, was not called by Respondent to testify, and no explanation was offered for not doing so The failure to call such an obviously material and important witness to this alleged error by Wilson, one who had been Wilson's immediate supervisor during most of his employment by Respondent, and thus to subject him to cross-examination regarding Wilson's performance and these asserted errors, suggests the inference, which I make, that if called his testimony would not have supported Franks' regarding either Wilson's record keeping errors or other unsatisfactory work 40 In any event, without Counter- man's testimony, the Respondent has not established by competent or probative testimony either that the two rolls of cloth were not when Wilson had recorded them to be or that Wilson had committed the errors for which he assertedly was fired d Furthermore, even assuming that Wilson had made this error in record keeping that Counterman assertedly found, the magnitude of Wilson's offense was greatly exaggerated by Franks Franks testified in this regard as 38 See Resp Exhs 8 and 9 39 Thus the heading of Resp Exh 9 reads as follows GREIGE LOCATION SHIFT 3 DATE 11/14/69 HOURS Il to 7 NAME D WILSON 40 See cases cited in In 30 supra 41 The cloth tickets were not produced by Respondent assertedly because they are not retained by it after the cloth is dyed and packed for shipment to the customer i am not persuaded by the explanation for the failure to produce the two cloth tickets involved in this case because the follows "On Friday afternoon, they [unidentified] come to me, they couldn't find the cloth out there " "Just two" rolls of cloth could not be found "We finally hunted it and found it, and he [Wilson] had located it wrong" However, an examination of the black ink notations assertedly made by Counterman on Wilson' s greige location reports of November 13 and 14 discloses that one roll of 700 strand cloth, recorded by Wilson to be in Bay B-I-L, assertedly was found in Bay B-I-R, and that the other roll of the same style of cloth which was recorded to be in Bay B-I-L was found right there in Bay B-I-R, but the cloth ticket, also known as the hard copy, assertedly listed it as located in Bay B-I-L 41 It is thus obvious that even if I accepted Counterman's notations on Wilson's reports as probative, competent, and correct (which I do not), anyone looking for these two rolls of cloth would have found one of them in each of the bays listed by Wilson Under the circumstances, I regard Franks' testimony about "hunting" for the cloth and ` finally" finding the two rolls as pure fiction and unworthy of credence or belief All of the foregoing persuade me that none of the reasons asserted for Wilson's discharge have any ment, and I conclude therefrom that they are mere pretexts which were created and advanced by Respondent to conceal the true motive therefor In the light of the incredible , pretextual, and baseless reasons asserted by the Respondent for discharging Wilson, the real reason is not difficult to infer In Shattuck Denn Mining Corporation v N L R B, the court of appeals appropriately said 42 Nor is the trier of the fact-here the trial ex- aminer-required to be any more naif than is a judge If he finds that the stated motive for a discharge is false, he certainly can infer that there is another motive More than that, he can infer that the motive is one that the employer desires to conceal-an unlawful motive-at least where, as in this case, the surrounding facts tend to reinforce that inference [Emphasis supplied ] The "surrounding facts" in this case disclose that Wilson had worked for the Respondent for 3 years He had been a satisfactory employee and had done a good job until the events for which he allegedly was discharged At the time Wilson allegedly committed the various faults for which he assertedly was discharged a campaign was in progress by the Union to organize the Respondent's employees The Company was unalterably opposed to the representation of its employees by the Union It knew that Wilson was sympathetic to the Union's cause Indeed, all of the faults attributed to Wilson by the Respondent allegedly occurred immediately after the Respondent became aware that Wilson had prounion sympathies In the light of the foregoing, and the baseless, unsupported , and incredible, pretextual nature of the reasons asserted for Wilson's Respondent did produce Wilson s greige location reports for November 13 and 14 although admittedly these reports also are kept only a very short time because the unfair labor practice charge in the case was filed and served on Respondent on November 24 only 9 days after Wilson s discharge and because the same considerations which impelled the Respondent to retain Wilson s greige location reports also would dictate the retention of the cloth tickets involved herein In any event without the cloth ticket there is no evidence either oral or documentary that Wilson erred in recording the location of the second roll of cloth 42 362 F 2d 466 470 (C A 9) COLLINS & AIKMAN CORP 629 termination, the inference is quite compelling, and I find, that his discharge was motivated not for the reasons asserted by Respondent, but because of antiunion consider- ations and Wilson's known prounion tendencies. In reaching this conclusion, I have given serious consideration to the well-established principle that it is not the Board's function to substitute its judgment for that of an employer in respect to either the selection or retention of employees and that an employer lawfully may fire employees for any reason with but the single exception-he may not do so if the termination is motivated by antiunion considerations.43 Nevertheless, in the light of my disbelief in the baseless and unsupported reasons asserted by Respondent for Wilson's termination, and for all the reasons previously stated, I find and conclude that Wilson was terminated not because of any shortcomings in his work or conduct, but by reason of his prounion sympathies and the Respondent's opposition thereto. Accordingly, I conclude that the Respondent thereby engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate , and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices , I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having further found that the Respondent discriminated against Fred Dixie Wilson by terminating his employment to discourage union activities and by thereafter failing and refusing to reinstate him, I will recommend that the Respondent be ordered to offer him immediate reinstate- ment to his former position or, if it no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges , and make him whole for any loss of earnings he may have suffered by reason of the discrimination by the payment of a sum of money equal to the amount he normally would have earned from the date of his termination to the date of reinstatement , less his net earnings during said period, with backpay computed on a quarterly basis in the manner established by the Board.44 I will also recommend that the Respondent 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 and 43 N L R B v McGahey, 233 F 2d 406. 413 (C A 5) 44 F W Woolworth Company, 90 NLRB 289, backpay shall include the payment of interest at the rate of 6 percent per annum to be computed in determine the amount of backpay due under the terms of this recommended remedy. In view of the nature and extent of the unfair labor practices committed by Respondent , the commission of other unfair labor practices may reasonably be anticipated. I will therefore recommend that the Respondent be ordered to cease and desist from "in any other manner" infringing on rights guaranteed to employees by Section 7 of the Act in addition to the manner in which those rights were found to have been violated herein.45 Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent, Collins & Aikman Corporation, is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 2. International Union of District 50, United Mine Workers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating against Fred Dixie Wilson by terminating his employment and by failing to reinstate him because of his support of the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By the foregoing conduct, by coercively interrogating employees concerning their union membership and desires, and by threatening employees with discharge or other reprisals because of their support of the Union, the Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I recommend that the Respondent, Collins & Aikman Corporation, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in and activities on behalf of International Union of District 50, United Mine Workers of America, or of any other labor organization of its employees, or in any other manner discriminating in regard to hire or tenure of employment or any term or condition of employment. (b) Threatening employees with discharge or other reprisals to discourage support of the above-named Union. (c) Coercively interrogating employees regarding their union membership, activities, or sympathies. (d) In any other manner interfering with, restraining, or the manner set forth in Isis Plumbing & Heating Co, 138 NLRB 716 45 N L R B v Entwistle Mfg Co, 120 F 2d 532, 536 (C A 4) 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coercing employees in the exercise of their rights to self- organization, to form labor organizations , to join or assist International Union of District 50, United Mine Workers of America , or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Offer Fred Dixie Wilson immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges enjoyed, and make him whole for any loss of pay he may have suffered as a result of the discrimination against him in the manner provided in the section of this Decision entitled "The Remedy." (b) Notify Fred Dixie Wilson, if presently serving in the Armed Forces of the United States, of his right to full reinstatement, upon application , in accordance with the Selective Service and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) 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 and determine the amount of backpay due under the terms of this Recommended Order. (d) Post at its plant in Farmville, North Carolina, copies of the attached notice marked "Appendix." 46 Copies of said notice, on forms provided by the Regional Director for Region 11, after being duly signed by Respondent, shall be posted by it for a period 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to insure that said notices are not altered , defaced, or covered by any other material. (e) Notify the Regional Director for Region 11, in writing, within 20 days from the date of the receipt of this Decision, what steps have been taken to comply herewith 47 +i' In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , recommendations , and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, automatically become the findings, conclusions, decision and order of the Board , and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." +7 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director for Region 11 , in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the opportunity to present their evidence , a trial examiner of the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice and we intend to carry out the order of the Board. The Act gives all employees these rights. To engage in self-organization To form, join or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection and To refrain from any and all these things. WE WILL NOT do anything that interferes with these rights More specifically, WE WILL NOT discourage union activity or member- ship in International Union of District 50, United Mine Workers of America, or any other labor organization by discriminating against you if you chose to engage in union activity orjoin that union or any other union. WE WILL NOT coercively question you in any way about the Union, or any other union. WE WILL NOT threaten you in any way to discourage your support of the Union. Since the Trial Examiner decided that we discrimi- nated against Fred Dixie Wilson to discourage union activities , WE WILL offer him full reinstatement to his former job, and WE WILL pay him for any loss he suffered because we fired him . If he is presently in the Armed Forces of the United States, we will notify him of his right to full reinstatement upon application after discharge from the Armed Forces. WE WILL respect your rights to self-organization, to form, join, or assist any labor organization, or to bargain collectively in respect to terms or conditions of employment through the Union named above, or any representative of your choice, or to refrain from such activity, and WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of these rights. You and all our employees are free to become members of any labor organization or to refrain from doing so. Dated By COLLINS & AIKMAN CORPORATION (Employer) (Representative) (Title) COLLINS & AIKMAN CORP. 631 This is an official notice and must not be defaced by Any questions concerning this notice or compliance with anyone. its provisions, may be directed to the Board's Office, 1624 This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, Wachovia Building, 301 North Main Street, Winston- or covered by any other material . Salem, North Carolina 27101, Telephone 919-723-2300.