Collins & Aikman

76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Collins & Aikman and International Union of District 50, Allied and Technical Workers of the U. S. & Canada. Case I1-CA-4536 and 11-CA-4557 January 25, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY On November 23, 1971, Trial Examiner George J. Bott issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions. 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions and to adopt his recom- mended Order. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner as modified below and hereby or- ders that Respondent, Collins & Aikman, Farmville, North Carolina, its officers, agents, successors, and as- signs, shall take the action set forth in the Trial Ex- aminer's recommended Order as modified: Substitute the attached notice for the Trial Ex- aminer's notice. ' The Respondent has excepted to certain credibility findings made by the Trial Examiner. It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear prepon- derance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C.A 3) We have carefully examined the record and find no basis for reversing his findings APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Inter- national Union of District 50, Allied and Techni- cal Workers of the U.S. & Canada, or any other labor organization, by discharging or refusing to reinstate employees, or in any other manner dis- criminating in regard to their hire or tenure of 195 NLRB No. 26 employment, or any term or condition of employ- ment. WE WILL offer James Denton full reinstatement to his former job, or if it is not available, to a substantially equivalent position, and pay him for the earnings he lost as a result of his March 18, 1971, discharge, plus 6 percent interest. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights to self-organization, to form labor organizations, to bargain collectively through rep- resentatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. COLLINS & AIKMAN (Employer) Dated By (Representative) (Title) WE WILL notify immediately the above-named in- dividual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 1624 Wachovia Building, 301 North Main Street, Winston-Salem, N.C. 27101, Telephone 919- 723-2300. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE J. BOTT, Trial Examiner: Upon charges of unfair labor practices filed by International Union of District 50, Allied and Technical Workers of the U. S. & Canada, herein called the Union, against Collins & Aikman, herein called Respondent or Company,' the General Counsel of the Na- tional Labor Relations Board issued a consolidated complaint and notice of hearing on June 24, 1971, in which he alleged that Respondent had engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, herein called the Act, by issuing a warning slip to Betty Jean Grant and by subsequently dis- charging Grant and James D. Denton. Respondent filed an answer, and a hearing was held before me in Wilson, North Carolina, on September 21 and 22, 1971, at which the Re- ' The charge in Case 11-CA-4536 was filed on April 2 and amended on June 22, 1971 The charge in Case 11-CA-4557 was filed on April 23, 1971 COLLINS & AIKMAN spondent and General Counsel were represented. Oral argu- ment and briefs were waived. Upon the entire record in the case and from my observa- tion of the witnesses, I make the following: FINDINGS OF FACT I JURISDICTION OF THE BOARD Respondent, a corporation engaged in the business of manufacturing textile products, owns and operates a plant at Farmville, North Carolina, which is the only plant involved in this proceeding. During the 12 months prior to the issuance of the com- plaint, Respondent sold and shipped from its Farmville plant goods valued in excess of $50,000 to points outside the State of North Carolina. During the same period of time, Respond- ent caused to be shipped directly to its Farmville plant goods of a value in excess of $50,000 from points outside the State of North Carolina. I find that Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A. The Discharge of James D. Denton The Evidence and Basic Findings a. Denton 's criminal record prior to employment In September 1956, James Daniel Denton , age 22, was convicted of two offenses of armed robbery and one of bur- glary and was sentenced to 45 years on all counts. Denton had also been imprisoned and escaped , and for that offense he was given an additional term of years. From September 1956 to January 1962, when he was paroled , Denton served time in North Carolina prisons. What he did from his release from prison until he was hired by Respondent is not entirely clear, but in August 1964 he filed two applications for em- ployment with Respondent and he was hired in September of that year. He falsified both applications in that he denied that he had ever been convicted of a crime. Denton worked satisfactorily for the Company from 1964 to January 1969, when he quit because he did not want to work a different shift, but he filed another application for employment in March 1970 and Respondent rehired him in April of that year . In this application he failed to answer questions about prior arrests and convictions. Respondent discharged Denton on March 18 , 1971, al- legedly because he had falsified his employment application in denying that he had a criminal record . While he had worked for Respondent his supervisors considered him to be a satisfactory worker and he caused Respondent no problems. During his employment with the Company, Denton reported regularly to his parole officer, sometimes meeting him in the Company's parking lot, until his probationary period was finished and he was released in February 1968. Denton's criminal record was known to a number of Re- spondent's supervisors, including some who had supervised him over the years. Denton testified that within a few weeks of his first employment in Respondent's knitting department he told his supervisor , Wells, that he was required by the rules of the parole board to notify his supervisor that he was on parole. He told no other supervisor about his record at the time, but as time went by and he became better acquainted with members of Respondent 's supervisory staff he talked to 77 them about his convictions for criminal offenses. Denton listed approximately 10 other supervisors who he said knew about his past while they and he worked for Respondent.' One of these supervisors, Dildy, attended grammar school with Denton, and years later , having become a prison guard, guarded Denton in prison. Denton was corroborated in regard to the extent to which he said certain supervisors were familiar with his criminal record. Dildy, the former prison guard, testified without con- tradiction that supervisors spoke about Denton's record among themselves. Dildy became a supervisor in 1968 but has since left the company. Howard C. Heath, employed by Re- spondent from 1963 to 1971, was a supervisor in 1968, and he supervised Denton for about a year. He also testified that he and other supervisors knew about Denton's record. They referred to it among themselves, he said, and also jokingly threatened to report Denton to his parole officer. Bullock, Respondent's personnel manager, also knew that Denton had been in prison , Heath said, because in a conversation in 1968, held in the presence of Jones, Bullock's secretary, he told him so. Bullock appeared surprised, he said, but not concerned. Wells recalled supervising Denton for approximately a year and having had conversations with him about hunting and other matters, but he denied that Denton told him that he was on parole or that he knew that he had been in prison. Bullock also denied that Supervisor Heath mentioned Den- ton's prison record to him, and he said he first learned ap- proximately 10 days before he fired him that Denton might have been in prison. I find on the basis of the credited testimony of Denton, Heath, and Dildy, which is basically uncontradicted in this area, that approximately 10 of Respondent's first line super- visors, including at least 2 of Denton's immediate super- visors, knew for a long time prior to his discharge that he had been convicted of crimes, had been imprisoned, and was on parole while employed by Respondent. I also find that Den- ton told supervisor Wells in 1964 that he was on parole, because it was clear to me that Denton's memory was better than Well's. In addition, I find that Personnel Manager Bul- lock learned, not later than December 1968, of Denton's record. This finding is based on the credited testimony of Heath, who said that he gave Bullock that information at that time in the presence of Jones, Bullock's secretary. Jones was not called as a witness by Respondent and there is no explana- tion for this failure. It is also likely that if as many supervisors as I have found to be the case knew that Denton had been in prison, Bullock, who had been personnel manager for 5 years, had heard about it too . In this connection and in connection with Heath's testimony that Jones, Bullock's secretary, was present when he talked with Bullock about Denton, Denton also testified that when he had filled out his application for reemployment in 1970 but had failed to answer the inquiry on the application about prior arrests, Jones noted the omis- sion and asked him what he wanted to do about it. Feeling that Jones, who came from his community and whose brother and husband he knew, was aware of his record, and not wanting to falsify this application in these circumstances, Denton told her it made no difference to him, but Jones did not press the matter, and the application was accepted and acted upon favorably. This is evidence that an employee in the personnel office and Bullock, her superior, had previous knowledge about Denton's past. ' Richard Pollard, Carroll Heath, Parrott Heath, Bobby Dillom, Jay Wil- son, Warren Wade, Wilson Wade, Kenneth Wade, Charles Harrison, Bobby Dildy Some of these persons may have been rank -and-file employees with Denton at one time, but subsequently they were promoted to supervisory positions 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find on the basis of the above findings regarding those who definitely knew about Denton's past that it was common knowledge that he had been in prison and paroled, even if higher officials did not know the exact circumstances sur- rounding his imprisonment. When at least a dozen persons in a plant in a small community knew about the kind of trouble that Denton had been in the information soon becomes com- munity property. b. Denton's union activity The Union has been trying to organize Respondent's em- ployees at the Farmville, North Carolina, plant since October 1969.' In October 1970, Denton signed a union card. Subse- quently, he secured the signatures of other employees to un- ion cards and also arranged to have union literature left in employee restrooms. On March 12, 1971, Denton attended a union meeting where he was given bumper stickers, addi- tional union cards, and union literature . That night he affixed one of the union bumper stickers to the outside of the cab of a truck he drove to work. At this time Denton was working on the third shift, which commences at 11 p.m. and ends at 7 a.m. Denton kept the sticker on his truck for approximately a week and during that time he parked it in the Company lot near the door to the personnel office where management offi- cials also park their cars. Denton testified that he left the plant in the morning between 7 and 7:15 a.m., and that after he affixed the sticker to his truck on March 12 he observed management officials driving into the parking area as he was leaving it. c. Denton's termination Before Respondent hired Denton in September 1964, he had filed two applications for employment , one on August 3 and the other on August 25, 1964. In both cases, in answer to the question on the application as to whether he had ever been convicted of a crime, he answered "no," which was, of course, false. Denton also falsified practically all of his prior employment history in the August 25 application and some of it in the August 3 one. As indicated earlier, Denton quit his employment in Janu- ary 1969 but was rehired in April 1970 after filing another application for employment. In this application he failed to supply any information about his arrests and convictions, although the form required such information. I have already found that the personnel manager's secretary called this omission to Denton's attention and that he told her that it made no difference to him what was done about it. Denton signed the application and certified that all statements in it were true and correct. He was subsequently hired, but he was fired by Personnel Manager Bullock on March 18, 1971, allegedly "for falsifying information on an application form," according to Bullock's testimony, the falsification being Den- ton's concealment of his criminal record. Denton testified credibly that Bullock telephoned his home sometime before he was due to report for work on March 18 for the 11:00 p.m. shift and left a message that he should not report, but to see Bullock the next morning in his office. ' Respondent is opposed to the representation of its employees by the Union. In Collins & Aikman Corporation, 187 NLRB No. 84, the Board so found In that case, which involved the Farmville plant, the Board also adopted the Trial Examiner's findings that Respondent had violated Section 8(a)(1) of the Act by coercively interrogating employees concerning the Union and by threatening them with discharge or other reprisals because of their support for the Union, and had also violated Section 8(a)(3) of the Act by discriminating against one employee because of his support of the Union. See also Collins & A,kman Corporation, 165 NLRB 678, enf. denied in part 395 F 2d 277 (CA 4) When Denton got the message he called Bullock back and told him that he planned to be at work that night . In that case, Bullock agreed to see Denton at the plant shortly before 11:00 P.M. Denton arrived at the plant around 10:30 p .m. and went to the knitting room where he picked up his toolbox after noting that his timecard was missing from its usual place. He met supervisors Heath and Teachy and told them that he expected to be fired because of his union activity . One of the super- visors told Denton that Bullock wanted him and Pollard, Denton's supervisor on the last shift , to meet in Bullock's office. While Denton, Teachy, and Heath were waiting for Pol- lard, one of them informed Denton that Pollard knew noth- ing about what was about to happen to him. When Pollard arrived, the other supervisors left, and Pollard and Denton went to the personnel office. While they were waiting to see Bullock, Pollard commented that Denton did not actually know that he was going to be discharged, but Denton insisted that he did and wondered aloud what excuse would be offered for it. Pollard, who did not testify, apparently made no reply. Denton was invited into Bullock's office alone, where he met Bullock and Burger, Respondent's division manager of personnel. After Denton was introduced to Burger, the fol- lowing dialogue occurred according to Denton: A. Mr. Bullock asked me to have a seat . I sat down in front of him and he picked up a folder which I pre- sume was my record. He said, "Donald, have you ever been convicted of a crime?" I said, "Tommy, don't come on with that damned stuff." I said, "I know more about what we're here for than you do." So I said, "I'll tell you right now, I'm a full-fledged union member , I work for them one hundred percent." I said, "I have personally signed over 100 people here." I said, "The union is coming and you can't stop it." From there he picked up my record again and read off on my application I had filled out, read off the "Have you ever been convicted of a crime?" and such, it said, "No." He said, "Donald, have you got a record?" I said, "Tom, it's known all over seven different coun- ties around here that I've got a record." He said, "What crime have you been convicted of?" I said, "A dozen different things ." Then I spoke up, I said, "Tommy, is that the excuse you're going to use to fire me?" He said, "That's all I have to use." So he asked me then, or he started writing out the dismissal slip that he was going to pay me off with and he asked me, "Do you have any tools that belong to C & A?" I said, "No, I don't have a thing that belongs to C & A." And he said, "Does C & A owe you anything?" And I made some figure to him , $2,224 or something similar to that. He said, "I don't understand." Well, I went on into details, explaining about how I was shanghaied out of $1,800 I should have received the year before then. I said, "It's posted out on the bulletin board right now, signed by Plant Manager, Mr. Barnett, that all people be hired , rehired and fired the same way" and I hadn't been treated like that. And he said that he didn't know anything about that. So that led on to we finished, he paid me off, so I got up to leave and I said, "I'll see you gentlemen in Court." I said, "If you'd be interested in some union literature, I'll COLLINS & AIKMAN be out on the highway passing it out when you come out of here." And that led to all of it. According to Respondent's witnesses, its principal super- visors and higher officials were not aware of Denton 's crimi- nal record, but learned of it only a week or so before his discharge when Supervisor Pollard casually passed the infor- mation on to another supervisor and the information then floated to the top under the following circumstances: Teachy, a former shift supervisor in the knitting depart- ment, but not Denton's supervisor, testified that he felt obli- gated to inform his superior, Wrought, approximately a week before Denton was discharged, that he had just learned from Pollard that Denton had a record. Department Manager Wrought, testified that the informa- tion he received from Teachy was news to him, and he passed it on to his superior, Evans, within an hour, and then immedi- ately to Bullock, by phone, at Evans' instruction. Evans, production manager, said that Wrought told him what he had heard about Denton and that he told him to tell Bullock. Evans also communicated the information to Plant Manager Barnette the very next day, he said. Plant Manager Barnette , who has been at Farmville only since June 1970, testified that he asked Bullock to check out Evans' report on Denton when he received it approximately 10 days to 2 weeks before Denton's termination, but that 2 days later Bullock informed him that he was unable to dis- cover any basis for the report. Barnette said he passed Bul- lock's report back to Evans, but 2 days later Evans came back and insisted that there was something to the original intelli- gence regarding Denton's record, because one of his super- visors had told him that he had heard Denton make some remark from which it might readily be inferred that Denton had been on a prison road gang . Evans confirmed Barnette's testimony in this respect . Barnette also testified that after receiving Evan's second report on Denton he told Bullock to investigate further. Bullock did so by checking surrounding county law enforcement officials, but no evidence that Den- ton had been in prison developed. Finally, appropriate North Carolina State officials were telephoned, and the facts on Denton were revealed. Bullock testified that Barnette ordered him to check out Wrought's report that Denton had a police record. He first looked at Denton's file which showed nothing to indicate that such a record existed. He then telephoned the local police department and was informed they had no records on Den- ton, but Bullock asked the local officials to investigate further, and he gave them Denton's name and address and "other information." Later the local police telephoned him and re- ported that the result was negative. Bullock said he conveyed this information to Barnette, but Barnette came back to him and instructed him to make an additional investigation be- cause Evans insisted that his informants still claimed that Denton had served time. Bullock then called the State De- partment of Corrections at Raleigh, North Carolina, and obtained Denton's complete record of convictions. His tele- phone call to Raleigh was on March 18, the day he fired Denton, and he said that it was "between a week and ten days" from the time he got his first inkling that Denton had been imprisoned until he confirmed it. Bullock, as set out above, testified that Denton was dis- charged because he had falsified his employment application, and he said that he had authority to fire employees in such circumstances. Barnette added that he and Bullock together made the decision to discharge Denton on March 18, and that he thought Burger, divisional personnel director was present. If Burger was present, he "probably" participated in the Decision, Barnette said. 79 Both Barnette and Bullock admitted that they had heard 2 days before Denton was discharged that he had reported to a supervisor that he was working for the Union. Barnette recalled that it was Supervisor Pollard to whom Denton had given this information, but Bullock could not recall exactly how he had learned it, although Pollard was involved in it in some way. Both stated that they had not seen Denton's truck with a union sticker on it at any time and also denied that they knew that Denton was engaged in union activity before he disclosed it to Pollard. By this time, however, having received information about his criminal record, they were conducting an investigation. I have already found that Bullock was informed by Super- visor Heath in 1968 that Denton had been in prison. In addition, it has been found that Denton told his own super- visor, Wells, shortly after he was hired that he was on parole. Moreover, the record shows that Denton remained on parole for 5 years and reported regularly to his parole officer, some- times in the Company's parking lot, and it shows further that it was common knowledge among a group of supervisors that he had been imprisoned and was on parole . Finally, Super- visor Pollard, who did not testify, and is supposed to have been the supervisor who first alerted management to Den- ton's past, as appears from Teachey's testimony, was never interviewed by Bullock or Barnette or anyone else, as far as this record discloses, to find out from him, the very source of the report, where Denton had served time, despite the fact that Respondent's witnesses claim that they spent a week or more running down Denton's prison background, and despite the fact that Pollard was Denton's immediate supervisor and had had conversations with someone in management about Denton's union activity , according to both Barnette and Bul- lock. I find, therefore, that if Barnette, a relatively new man- agement official, had not heard about Denton's past before March 1971, he was quickly advised by Bullock that it was ancient history when he told Bullock what he had heard. Supervisor Pollard knew 2 weeks before Denton was fired that he was active in the Union. This appears from the uncon- tradicted testimony of Denton and former supervisor Dildy, who testified about conversations concerning Denton 's union activity in Pollard's presence. Supervisor Heath also knew as early as January 1971 that Denton had signed a union card, for Denton's testimony that had told Heath that he should have signed a union card that he had been given that morn- ing, as Denton had, instead of giving it to Wrought, Heath's superior, is undemed. Union activity was occurring at Re- spondent's plant, therefore, long before Denton was fired, and at least two supervisors knew that Denton was involved in it. I find incredible, therefore, particularly in the light of Re- spondent's opposition to the Union, Barnette's and Bullock's denials that they knew that Denton was displaying a union sticker on the truck he drove to work and parked in the company lot near the entrance to the personnel office. Den- ton's truck, like Denton's past, was well known in this indus- trial community. Bullock had ridden in it and was present several months before when, for publicity reasons, the Com- pany had taken photographs of the vehicle and its cargo of racoons, which Denton hunts and captures live as a hobby. B. Analysis, Additional Findings, and Conclusions in Denton's case Respondent, which opposes the unionization of its em- ployees, discharged a union activist shortly after he openly disclosed his adherence to the Union by displaying a union sticker on the truck he regularly drove to work and parked in Respondent's parking lot. Although Respondent told Den- ton that he was being terminated because he had lied about his criminal record on his application when he was hired 7 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD years before, I have found that for many years Respondent knew that Denton had served time, even if it did not know all the details of his convictions. Denton's record of employ- ment was good, for not only did Respondent's witnesses so indicate, but he was rehired without difficulty in 1970 after having quit his job, and this time his failure to answer ques- tions in the employment application about arrests and convic- tions was known to the personnel manager's secretary, who commented on it, but accepted it anyway, a clear indication that Respondent was unconcerned. Although Denton had filed three different applications for employment over the years and had falsified or misrepresented his criminal record in all and had even been inconsistent in misrepresenting his prior employment in two of them, but had, nevertheless, given personal reference, there is no evidence that Respond- ent made any effort to investigate Denton before he showed his union sympathies. This also indicates strongly that Re- spondent knew about Denton's past and was unconcerned about it, and it supports the testimony, which I have credited, that such was the fact. General Counsel made out a strong prima facie case that Denton was discharged because of his union activity, and Respondent's asserted reason in support of its action will not stand scrutiny. Respondent, a humane, enlightened employer in this respect, has no policy against employing persons who have served time. The issue is not whether Denton had been in prison or whether he was fully rehabilitated, but whether he had lied about it on his application; so Respondent stated at the hearing in a discussion about Denton's behavior since his release from parole. Respondent has a rule which states that giving false information to the company when hired may subject an employee to later dismissal. Plant Manager Bar- nette and Personnel Manager Bullock explained that Re- spondent needs to know about a prospective employee's criminal past so that it can investigate the applicant thoroughly in order to make a judgment in consultation with "the department manager or shift supervisor that he might be working under ... " in regard to the person's desirability. This check, if the applicant were on parole, would include a discussion with his parole officer, according to Bullock. If Respondent did not know that Denton had been in prison and paroled and completely rehabilitated, which is an assumption very difficult to make even for discussion pur- poses, a talk with Denton's supervisors or his parole officer would have established those facts. But Respondent did not talk with Pollard, Denton's supervisor, or with Denton him- self, or with his parole officer, and so Denton, a longtime, otherwise satisfactory employee, was treated less humanely than a person applying for work for the first time, only, according to Respondent, because he had obtained his job by misrepresentation in the first instance. I do not believe that Respondent's rule is so Draconian, Respondent's employee handbook does not state that dis- charge in these circumstances is mandatory. Barnette conceded that, and stated that the handbook gives him the "prerogative" of doing what he wishes, but he added that his policy was one of mandatory discharge. Barnette stated, how- ever, that there never has been a reason to check anyone else's record in a situation like Denton's, and Personnel Manager Bullock testified that Denton is the only person who has been reported by a supervisor to have had a criminal record Bar- nette's "mandatory" policy, it would seem, has been estab- lished on the basis of one case, Denton's. If Barnette had such a policy, his staff did not know it, for he has never announced it, and they appear unaware of it. Teachy, who heard Pollard mention that Denton had served time, said he felt "obliged" to report this to his supervisor, but he could not explain why he felt "obligated", and he had no idea what the Respondent's policy was on hiring persons with records. He could not have felt "obligated" to report Denton for "falsification," of course, because he had no information that such was the case. Similarly, Wrought, who passed Teachey's report on to higher officials, was unable to say what Respondent's policy in this area was. I find that there is no "mandatory" policy of discharging all employees who falsify applications and that the establishment of such a rule in Denton's case is evidence that Respondent had another reason for terminating him. I also find that Respondent's actions after it claimed that it learned for the first time that Denton had been in prison are evidence that Respondent was not seeking to establish "falsification" in order to implement an otherwise lawful policy but was looking for an excuse to eliminate Denton because it had learned that he was active in the union. Re- spondent spent a week or more, according to its witnesses, in tracking down Denton's whereabouts from 1956 to 1962, but Denton, who knew better than anyone else, was never asked, and Bullock's explanation that since Denton lied once he would lie again was unimpressive, for many years of satisfac- tory employment under supervisors who knew his past might have made him less wary of society's reprisals, and his uncon- tradicted testimony shows that he quickly admitted the facts and ridiculed Bullock's pose of ignorance when asked about them. In addition, as indicated earlier, when Bullock tem- porarily ran into a dead end in his investigation of Denton's record, Pollard, who supposedly first mentioned Denton's background to Teachy and started an elaborate chain of events, was not asked for additional data. Neither was he nor anyone else asked for an opinion on Denton's worth and the possibility of saving him as an employee, and Barnette, Bul- lock, and Burger do not appear to have even considered that alternative. Respondent did not seem interested while it in- vestigated Denton in getting an explanation from him, even perhaps a denial, or in the existence of possible extenuating circumstances, or in any kind of humane handling of the situation. Instead, Respondent appears to have been more concerned with a confrontation in which it could cut the employee off quickly when he either admitted or, hopefully, denied, in the presence of Respondent's divisional manager of personnel, a criminal record which Respondent had now sol- idly documented. There must have been something else on the scale when Respondent balanced its laudable policy of hiring parolees against its rule concerning falsification of ap- plications, and in these circumstances I infer that it was Denton's union activity, a subject in regard to which Re- spondent also has a policy, one of opposition. I find and conclude on the basis of the above findings that Respondent discharged Denton because of his union activity and used his falsifications of employment applications as a cover for its real reason. By such conduct Respondent vi- olated Section 8(a)(3) and (1) of the Act. C. The Discharge of Betty Jean Grant The Facts Betty Jean Grant and Dorothy Smith worked in Respond- ent's warping department in February 1971 Grant was a warp tender and Smith also did regular production work, but she also acted as a part-time instructor. In early February, Franks, department manager, decided to promote Smith to full-time instructor, which apparently meant that she would get a raise in pay. When Grant and other employees heard about Franks' plans they were upset, and Grant was chosen to ask Franks to meet with them, without Smith being present, and discuss the matter. Grant testified that she and others did not feel that Smith deserved a raise because she had not performed her job properly COLLINS & AMMAN 81 Franks agreed to meet with the employees on February 7. Grant testified that she spoke first at the meeting and ex- plained to Franks that they were present because the em- ployees had heard that Smith was getting a raise and felt that she did not deserve it. As Franks defended his position, Grant accused him of playing favorites in permitting Smith to work more Saturday overtime than any of the other employees. To this point the record is fairly clear and Franks and Grant are in agreement, but Franks also claims, and there is some evi- dence to support him besides his own testimony, that at the meeting, Grant, by referring to certain rumors, implied that Franks' partiality to Smith had something to do with their personal lives. The day after the employee meeting, Franks had Grant in his office, with Supervisor Beamon present, and gave her a written warning after reading to her a summary of what was supposed to have occurred. In short, the document attached to the warning describes Franks intention to make Smith a full-time instructor and states that at the employee meeting the day before, after Grant asked him why Smith was being made a full-time instructor and he had explained why, she angrily accused him of showing favoritism and added that she had "heard the little rumors going around, and she knew what was going on." Franks also stated in the memorandum that he was issuing a warning to Grant because she had made "serious charges against me personally," and he added that if it happened again, Grant would be discharged. Grant was advised that she could sign the warning or not, and she chose not to. Both Franks and Beamon, shift supervisor in Grant's department, signed it. Grant testified that Franks' memorandum concerning the employee meeting and her part in it contained statements that she had no recollection of making. Although she stated that she had not accused Franks of any misconduct, her denial was uncertain. It is clear from her testimony and former employee Hall's that the employees in the department were "upset" and that there was some display of emotion. Al- though former supervisor Beamon was unable to say that Grant made any remarks about Franks' friendship with Smith, he, too was not very positive in his statements, and he admitted that he had heard the charge somewhere. It is also clear that there were rumors in the department at the time about Franks and Smith, and, despite Grant's testimony that she had no recollection of repeating or referring to them in the employee meeting in early February, she did mention them to Franks and others later, as found below. I find, therefore, that Franks' memorandum, attached to Grant's written warning issued on February 8, 1971, and sent to personnel, accurately reflects the facts. I find that at the employee meeting, Grant stated that Franks' treatment of Smith was not based on legitimate business considerations, and implied that he was motivated by his alleged improper relationship with Smith. Sometime in April 1971, Franks decided to use Smith as a temporary supervisor in the warping department, but, remembering the reaction he got when he had made her an instructor, he called each of the approximately 10 employees in the department to his office separately and asked them how they would feel about having Smith as a supervisor. He tes- tified credibly that all employees except Grant indicated that they would work harmoniously with Smith Franks testified that in discussing Smith with Grant, she became angry again and told him that Smith was disliked by all of the employees in the department and that Franks had no one to blame for this but himself, because he permitted Smith unusual freedoms and privileges. Franks replied that he had talked with the other employees and that they ap- peared satisfied with his decision, and he asked Grant again for her reaction. Grant indicated that she would not work for Smith, and she then made disparaging remarks about Smith's family and implied that Franks' relationship with Smith was improper. Grant also stated that she had been informed by another employee that Franks and Smith had been seen together in a neighboring community, the innuendo obvi- ously being that the trip was not a business one. Franks reminded Grant that he had previously warned her against making false charges against him, and after she made another reference to Smith and what she claimed everybody knew about Franks and Smith, Grant stated that she would do her own work, but she would not work with Smith. After his meeting with Grant, Franks reduced the sub- stance of their discussion to writing and sent it to personnel. The memorandum is in evidence, and I find that it fairly reflects what occurred. Franks spoke with his superiors about Grant and was told that if he wished to discharge her, it was within his authority. On April 14, the day after he interviewed her, he discharged her, and he said he did it because she had accused him of an improper relationship with another employee and because she "refused to work the way I had the job set up." Grant was "upset," Franks said, and asked if she could see Barnette, plant manager. Barnette testified that when he saw Grant she was "upset" and did most of the talking. She stated that Franks had made Smith an assistant supervisor and that she would not work under such conditions. Grant also claimed that Franks had been seen with Smith at a certain location - the clear implication being that it was a rendez- vous-but Grant hastened to assure Barnette that she had not personally seen them together. As Grant was leaving Bar- nette's office, she claimed that she had been fired because of her union activities. Grant's account of her conversation with Franks and Bar- nette, in my view, is different only in the emphasis placed on certain details. She said that when Franks interviewed her he asked her why "all the girls were upset, and ... how we felt about Dorothy Smith's job." She admitted that she replied by telling Franks that he already knew how she felt and that "a lot of people," but not she, had said that they had seen Smith and him together. This kind of thing, she said, caused "a lot of confusion" in the department because employees thought Franks was showing favoritism, and she told him so. Grant was here again unable to deny positively some of the statements Franks attributed to her in his testimony and in his memorandum summarizing their conversation. With re- spect to the principal question, however, regarding her inten- tions if Smith were to be her supervisor, she said that Franks did not actually ask her if she would work with Smith as a substitute supervisor but only asked her if she would "do a certain job" if Smith so instructed her. She answered, "It depends on what I was having to do at that particular time." Grant also conceded that she told Barnette when she met with him that Franks and Smith "had been seen together," but she claimed she did not say they were "running around," for she makes a difference between "going around" and being seen together. As I have stated earlier, I credit Franks' version of the events leading up to Grant's discharge. He is corroborated by Barnette in some measure, and his memorandum, made shortly after the event, corroborates him and does not seem contrived, and Grant's own version is not basically different from it. 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Analysis, Additional Findings, and Conclusions in Grant's Case III THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE General Counsel contends that Mrs. Grant was discharged because she and other employees engaged in protected con- certed activity by protesting Franks' installation of Smith as full-time instructor and later as part-time supervisor. The Board in Joanna Cotton Mills Company,' observed that "the selection of supervisory personnel is within the usual scope of management prerogative, without regard to the preference of the employees to be supervised," but it added that "em- ployees nevertheless may express in concert their views re- garding the selection of their supervisor to the extent that it directly affects their wages, hours and working conditions, without thereby imperiling their employment status."' The Board held, therefore, that by discharging an employee who had circulated a petition seeking the removal of an allegedly unsatisfactory supervisor, the employer violated the Act. The record contains no evidence of any substance that Smith's elevation to full-time instructor affected the wages, hours, or working conditions of any employees in any manner that legitimately concerned them, and it is also far from clear that her appointment as part-time supervisor "directly" affected them, but granting that in either or both cases it did, this is not the kind of a case, however, where an employee is discharged for leading or joining in the airing of a grievance growing out of a management appointment in a manner con- stituting concerted activity for the kind of purposes stated in the Act, but one where the principal actor in the activity has a bias against the appointee and, in airing her grievance, recklessly states, or at the least clearly suggests, first in the presence of other employees and then to her supervisor in private, that his decisions regarding the appointee are in- fluenced by his extramarital relationship with her, and who then advises her supervisor that she will not take directions from the-newly appointed supervisor. Grant said that Franks told her when he fired her that he could not have anyone telling him how to run his department. I find, however, that if the remark was made, it had reference to Grant's recent statement that she would not cooperate with Smith, some- thing that Respondent had a right to expect after it had heard Grant's complaint, even assuming that it was made in good faith. By voicing her intention not to obey Smith's directions, that is, as Franks described it, work the job as he had set it up, and by repeating her accusations against Franks, Grant, in that respect, removed herself from the protection of the Act. I find that Respondent discharged her for those reasons and did not violate the Act, as alleged in so doing.' I also find, in the context of this case, that Franks' earlier reprimand of Grant was based primarily on her unwarranted charge of favoritism to Smith, accompanied by innuendo regarding his personal life, and that any concerted activity on her part was only remotely connected with it. As such, Respondent did not violate Section 8(a)(1) and (3) of the Act by issuing the repri- mand. 81 NLRB 1399, set aside 176 F 2d 749 (C A 4) Id. at 1401 Cf. Joanna Cotton Mills Company, supra, fn 4, N.L.R.B. v. Phoenix Mutual Life Insurance Co, 167 F.2d983 (C A 7), Cleaver-Brooks Manufac- turing Corporation, 120 NLRB 1135, set aside Cleaver-Brooks Man ufactur- ing Corporation v. NLR B., 264 F 2d 637 (C A 7) It is found that the activities of the Respondent set forth above in section III, occurring in connection with its opera- tions described in section I, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstri cling commerce and the free flow of commerce. IV THE REMEDY Having found that Respondent engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act, it will be recommended that the Board issue the recommended Order set forth below requiring Respondent to cease and desist from said unfair labor practices and take certain affir- mative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully discharged James Denton, it shall be recommended that Respondent reinstate him to his former job, or if not available, to a sub- stantially equivalent position of employment without preju- dice to seniority and other rights and privileges and make him whole for any loss of pay he may have suffered as a result of Respondent's unlawful conduct. Backpay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization as defined in Section 2(5) of the Act. 3. By discharging James Denton because he engaged in union activities, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent did not engage in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act by issuing a warning to and thereafter discharging Betty Jean Grant. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:' ORDER Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees, refusing to reinstate them, or otherwise discriminating against them because they engage in union or other protected concerted activities. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaran- teed in Section 7 of the Act. ' 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, and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes COLLINS & AIKMAN 2. Take the following affirmative action designed to effectu- ate the policies of the Act: (a) Offer James Denton immediate and full reinstatement to his former job or, if not available, to a substantially equiva- lent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings, in the manner set forth in "The Remedy" section of this Decision. (b) Notify the above-named employee, if presently serving in the Armed Forces of the United States, of his right to full reinstatement upon application, in accordance with the Selec- tive Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and make available to the Board or its agents all payroll and other records necessary to compute the back- pay and reinstatement rights, as set forth in "The Remedy" section of this Decision. (d) Post at its Farmville, North Carolina, plant copies of the attached marked "Appendix."' Copies of said notice, on 83 forms provided by the Regional Director for Region 11, shall, after being duly signed by Respondent, be posted immedi- ately upon receipt thereof, in conspicuous places, including all places where notices to employees are customarily posted, and be maintained by it for 60 consecutive days. Reasonable steps shall be taken 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 10 days from the date of this Order, what steps Re- spondent has taken to comply herewith.' 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 OR- DER OF THE NATIONAL LABOR RELATIONS BOARD " ' In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read . "Notify the Regional Director for Region 11, in writing , within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith "