Sumter Plywood Corp.

SUMTER PLYWOOD CORPORATION 563 Sumter Plywood Corporation and UBC, Southern Council of Industrial Workers, United Brotherhood of Carpenters and Joiners of America , AFL-CIO, CLC. Cases 10-CA-9937, 10-CA-10041, and 10-CA-10070 January 21, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On August 31, 1973, Administrative Law Judge John M. Dyer issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 1. We agree with the Administrative Law Judge's findings that certain acts and conduct of Respondent were violative of Section 8(a)(1) of the Act. 2. We also agree with the Administrative Law Judge's finding that Respondent discharged employ- ees Virginia Ingram, Barbara Ward, and Mary Ezell in violation of Section 8(a)(1) and (3). Crucial to this finding was the Administrative Law Judge's credibil- ity resolution that Respondent's representatives Sam Massengill and Carrel Black agreed to a relaxation of the Coke rule during the meeting of March 6, 1973. The record supports this finding, and we will not disturb it. 3. We cannot agree with the Administrative Law Judge that the General Counsel established that employee Susie Steele was discharged in violation of Section 8(a)(1) and (3) of the Act. We find merit in Respondent's contention that, under Rubin Brothers Footwear, Inc., 99 NLRB 610, the General Counsel had the burden of proving that Steele did not engage in the misconduct alleged to have caused her discharge. We conclude that it was not established that two incidents of alleged misconduct by Steele that occurred outside the plant were of no concern to Respondent. While it is true that Steele was allowed I We are satisfied on the basis of the entire record that Respondent's contention that the Administrative Law Judge was biased and prejudiced is without merit The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to to return to work when the strike ended, Massengill's uncontradicted testimony indicates that Respondent had not had sufficient opportunity to evaluate the reports about Steele's misconduct. In regard to the incident that took place within the plant, Respondent obtained a statement signed by eight employees indicating that Steele had precipitat- ed the argument. Under these circumstances, we conclude that Respondent adduced sufficient eviden- ce to demonstrate it had a good-faith belief that Steele had engaged in misconduct warranting her discharge. Therefore, the General Counsel became obligated to prove that Steele engaged in no misconduct. However, Steele's testimony indicates that threats were exchanged by Steele and Pearl Ward. Also, the testimony of General Counsel's supporting witness Coates indicates that it was Ward who was backing away while Steele, with clenched fists, was making threats. In light of this and even allowing for the Administrative Law Judge's credibility resolutions in favor of Steele and Coates, we find that the General Counsel did not sustain his burden of proving that Steele engaged in no misconduct. Accordingly, we do not find that Steele was discharged for discriminato- ry reasons, and we shall dismiss the complaint as to her. AMENDED CONCLUSION OF LAW Substitute the following for the Administrative Law Judge's Conclusion of Law 3: "3. By discriminatorily terminating Virginia In- gram, Barbara Ward, and Mary Ezell on March 8 and not thereafter reinstating them to their positions because of their actual and suspected union sympa- thies and activities and their concerted activities, Respondent engaged in and is engaging in unfair labor practices affecting commerce within the mean- ing of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Sumter Plywood Corporation, Livingston, Alabama, its officers, agents, successors, and assigns, shall take the action overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544. enfd 188 F 2d 362 (C A 3, 1951). We have carefully examined the record and find no basis for reversing his findings 208 NLRB No. 87 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD set forth in the said recommended Order, as so modified: 1. Delete from subparagraphs 2(a) and (b) the name of Susie Steele. 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which the Company, the Union, and the General Counsel of the National Labor Relations Board participated and offered evidence, the Nation- al Labor Relations Board found that we violated the law and ordered us to post this notice, and we intend to carry out the Order of the Board and abide by the following: WE WILL NOT ask our employees about their union sympathies, activities, desires, or member- ship. WE WILL NOT threaten our employees that it would be useless for them to have a union or that we would not allow a union in the plant. WE WILL offer Virginia Ingram, Barbara Ward, and Mary Ezell full reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, together with all of their rights and any backpay due them. WE WILL NOT discharge, lay off, or refuse to hire or rehire any employee in order to try to discourage our employees from being or becom- ing members of UBC, Southern Council of Industrial Workers, United Brotherhood of Car- penters and Joiners of America. AFL-CIO, CLC. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist UBC, Southern Council of Industrial Workers, United Brotherhood of Carpenters and Joiners of Ameri- ca, AFL-CIO, CLC, to bargain collectively with representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. All our employees are free to become or remain union members. SUMTER PLYWOOD CORPORATION (Employer) Dated By (Representative) (Title) 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 compli- ance with its provisions may be directed to the Board's Office, Peachtree Building, Room 701, 730 Peachtree Street, N.E., Atlanta, Georgia 30308, Telephone 404-526-5760. DECISION STATEMENT OF THE CASE JOHN M. DYER, Administrative Law Judge: The UBC, Southern Council of Industrial Workers, United Brother- hood of Carpenters and Joiners of America, AFL-CIO, CLC, herein called the Union or Charging Party, filed charge 10-CA-9937 on January 11, 1973,1 and an amended charge on January 24 alleging that Sumter Plywood Corporation, herein called Respondent or the Company. violated Section 8(a)(1) by various acts and conduct. The Union filed charge 10-CA-10041 on March 15, and charge 10-CA-10070 on April 2 and amended the latter charge on April 7. These two charges allege that Respondent discharged certain of its employees in viola- tion of Section 8(a)(3) and (1). The Regional Director for Region 10 issued a complaint in the first case on February 16 asserting that Respondent had violated Section 8(a)(1) of the Act by various acts. Respondent filed its answer on February 26, admitting the service and commerce allegations but denying that it had violated the Act in any way. The hearing in Case 10-CA-9937 was postponed and the Regional Director for Region 10 issued an order consolidating cases, complaint and notice of hearing on April 27. This document which combined the three above cases added to the allegations that Virginia Ingram, Barbara Ward, and Mary Ezell were discharged on March 8, and Susie Spence Steele was discharged on March 14, in violation of Section 8(aX3) and (1) of the Act. Respondent filed its answer on May 2, again admitting the service and jurisdictional allegations and that the four individuals were fired on the dates alleged but denied that their discharges violated the Act. All parties were afforded full opportunity to appear, to examine, and cross-examine the witnesses, who were sequestered, and to argue orally at the hearing held on May 22 through May 25 in Livingston, Alabama. Respon- dent has filed a brief which has been carefully considered. In considering a number of the 8(a)(1) allegations in this case I am mindful of the fact that the Company did not I Unless otherwise stated all events herein occurred during 1973. SUMTER PLYWOOD CORPORATION produce supervisors Cameron Barber and Charles Ivey. It was stipulated that Ivey left the Company's employ on November 17, 1972, and that Cameron Barber left or was discharged on April 15, 1973. It was further admitted or stipulated that Barber and Ivey had supervisory status at the relevant times of alleged 8(a)(1) conduct . Respondent offered no explanation as to why the two men were not produced to testify in the instant proceeding . Therefore, where the testimony of 8(a)( 1) conduct alleged to have been made by Barber or Ivey is, in itself , credible, I will find that such violation occurred . Some items of alleged 8(a)(1) misconduct appear to have rational explanations which I have credited and in such instances I have found that the Act was not violated. In regard to the 8(a)(3) and 8(a)(1) allegations of discharge of the four individuals , the basic question is whether Respondent's animus towards the Union was such that it sought to kill a budding union organization in its plant by seizing on a pretext to eliminate known prominent union sympathizers and/or discharged them for their part in concerted activities . Respondent contends that it discharged three of these individuals because they know- ingly and deliberately violated established company rules, and discharged the fourth , Susie Steele because she had threatened another employee's life in the plant. In regard to Steele, General Counsel's theory basically is that the Company did not investigate the facts and that the facts show that Steele was not an agressor but was a threatened employee and that her discharge by Respondent is a further effort by Respondent to rid itself of a union adherent and one who had engaged in the concerted activity of a strike. I have found that Respondent violated Section 8(a)(3) and (1) by the discharge of each of the four individuals and will recommend an appropriate order. On the entire record in this case , including my evaluation of the reliability of the witnesses based on the evidence received, my observation of their demeanor, and the nature and manner in which responses were made , I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent is a corporation engaged in the manufacture of plywood and lumber products with an office and place of business in Livingston, Alabama. During the past year, Respondent sold and shipped finished products valued in excess of $50,000 directly to customers located outside the State of Alabama. Respondent admits and I find that it is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. Respondent admits and I find that the Union herein is a labor organization within the meaning of Section 2(5) of the Act. 11. THE UNFAIR LABOR PRACTICES 565 A. Background and Undisputed Facts' Respondent's plant, from the diagram in evidence as Respondent's Exhibit 1 , appears to be about 500 feet long by about 300 feet wide . The Company started in operation in the fall of 1971. Basically the Company receives green logs, soaks them, and then peels the veneer off, drying the veneer and with presses and glue machines making veneer panels. Chips of plywood or broken pieces are gathered and either used or shipped to another location . Most of the action in this case, insofar as the discharges are concerned, took place in and around the dryer tables where pieces of veneer are ejected from the two dryers onto the two drying tables. The drying tables are supposed to have four women who catch the veneer as it comes out onto the table, grade it, and place it in an appropriate pile. The dryers and the drying tables are located at the end of the plant . There are two restrooms available for the employees , the closest being some 200 to 250 feet from the dryer tables . The other restrooms are located on the other side of the lunchroom, approximately 350 feet from the dryer tables. On the second floor above the lunchroom are the foremen 's offices which have an outside stairway leading to them from the ground floor. There have been some changes in the supervisory hierachy since the plant started . Basically the plant is split into the green end and the drying end with a supervisor in each area . The plant was running on a three -shift basis at the times relevant to the 8 (a)(3) and ( 1) actions in this case, with each shift having a foreman for either the green end or the dryer end . Sam Massingill is the personnel manager and has been from the inception of the plant . Carrell Black at one time had been the plant superintendent, and during the relevant period was promoted to the position of production manager. Earl Bollinger had been a green end foreman and was promoted to superintendent . Cameron Barber was a foreman on the dryer end on the second shift and Charles Ivey was a foreman on the same shift. Until at least April 1973 the Company had no written posted rules of any sort . There were some rules which were given out by the foreman or in some cases by the personnel manager and Respondent had a system of writing up individual warnings for infractions of its rules. In the beginning the employees had been allowed to eat or drink cokes at their work stations and could secure food and drink in the lunchroom . Around October 1972 a new rule was announced in the safety meetings held by personnel manager Sam Massingill . Massingill told those employees who were in the meeting held for the second shift employees at the dryer end that they would no longer be allowed to have food and drinks at their machines . He gave as the reason for this restriction that stringent rules were being promoted by the Occupational Safety and Health Administration stating that their rules prevented employ- ees from eating or drinking at their machines . Although Massingill and some other company supervisors told the employees that these were rules being enforced by the Occupational Safety and Health Administration Act, they knew that there really were no such rules from OSHA. When this rule was put into effect the employees were 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD still allowed to get some relief from their machines by having one of the sweepers take over their spot at the dryer table while they went for a coke or to go to the restroom. The consensus of testimony appears to be that where a foreman was around employees were supposed to notify the foreman where they were going but if none was present and they could get someone to take their place, they could leave. The consensus of testimony further indicates that the rule about notifying foremen was more honored in the breach than in the observance. Sometime around February while Virginia Ingram was- on leave from her job for an operation, second shift dryer end foreman Cameron Barber told those on his shift that they could not get relief any longer if they had to go to the restroom, that those left at the dryer table wouldjust have to keep up until the person got back. He also told them that they would not be allowed to drink cokes at any time except during the 20-minute lunch period. According to Virginia Ingram, whose testimony in this regard is undenied, a union representative came to her house sometime around July 1972 and talked to her about the Union and she attended some union meetings which began around August 1972. The meetings, for the most part were held at Arthur Lee Gaines' cafe in Bellamy, Alabama, some 14 miles from Livingston. Mrs. Ingram played a part in organizing the union meetings and on at least one occasion prepared an announcement to be read over a local Livingston radio station, WYLS. The an- nouncement said, "there will be a party for the employees of Sumter Plywood held at Arthur Lee Gaines' cafe, Bellamy, Ala. Sunday, August 27, 5:30 p.m. There will be free refreshments. Sponsored by Virginia Ingram, Bella- my." According to testimony this announcement was played over a local radio station on the bulletin board program which is a public service announcement "swap shop" type on the radio every day. During the meetings in August and by visits to employees' homes, etc., union authorization cards were solicited from a number of employees and on September 12, 1972, the Union filed a petition with the National Labor Relations Board, designated Case 10-RC-9346. The petition stated on its face that the Union had requested recognition from Respondent on September 6 but had received no reply. It was stipulated by the parties that a copy of the R petition was received by Respondent within a week of September 12. Virginia Ingram was the union observer at the election held by the Board at the Company on November 15, 1972. The Union won that election but Respondent filed objections to the election and the Union was finally certified by the Board on May 16. The Union continued to hold meetings at Gaines' Cafe in Bellamy on the first Sundays of the month and such other meetings as were called. B. The 8(a)(1) Violations Around September 28, foreman Cameron Barber told Virginia Ingram he wanted to see her in his office about a personal matter and took her upstairs to the foreman's office. Barber told her he wanted to talk about the Union, that he had been in a union job elsewhere and did not want to be involved in the Union and asked why she wanted it. She told him she wanted a union for better insurance, wages, and hours. Barber took out a little book or pad and showed her some rates at another plant again stating that he did not want the Union in this plant. He asked whether the girls would approve of the Company furnishing them with gloves and she said speaking for herself it would be nice. He asked whether he had treated the employees so badly saying he thought he had been good to them and asked what he had done to make them want a union. She told him that he was nice to them at times but at other times he was just as mean as he could be. She testified that the conversation with Barber lasted approximately 1 hour. Virginia Ingram testified that there had been some talk among the employees in the plant about the possibility of the Company furnishing gloves and she stated that it was possible that some of the employees could have mentioned this to Cameron Barber or that she might have done so. Company testimony indicated that a salesman for a particular type of glove left some six or eight pairs of gloves at the Company stating that if the employees liked them they should place an order at a local store. The Company gave these sample gloves to the employees working at the dryer tables and that was the end of the gloves from Respondent. From Ingram's testimony it does not appear that an offer of gloves was made as a promise of benefit to the employees for refraining from union activities nor was the giving out of gloves following the union election victory a "payoff" for refraining from union activity. I therefore would dismiss such allegations of the complaint. Virginia Ingram stated that she was told by others that in regard to the "party announcement" for August 27 which was read over the radio, that her name was announced as the sponsor for the party. No one from the Company ever made any mention of this announcement to her. There was testimony by Mr. Ezell, a partner of the radio station, WYLS, that Sam Massingill, Respondent's person- nel manager, called him on the telephone asking if there had been any announcements over the radio concerning meetings of the Company's employees. Mr. Ezell said that he did not know but would check the bulletin board announcements. He found it, called Massingill and read it to him. Massingill asked, or Ezell volunteered, to send Massingill a copy of the announcement and did so. Massingill testified that one of the company vice presidents had heard the radio announcement and asked Massingill to find out what the party was about, in that the announcement sounded like the Company was sponsoring a party. Massingill called the radio station and corroborat- ed the testimony of Ezell in that he had the announcement read to him and received a copy of it thereafter. The complaint alleges that this request of Massingill's constitutes surveillance of employees' union activities and violates Section 8(a)(1) of the Act. Virginia Ingram had stated that the announcement was worded as a party rather than as a union meeting because the employees were desirous of keeping their activities hidden from the Company. In the circumstances here, including the wording of the announcement, the fact that Virginia Ingram's name was read over the radio station with the SUMTER PLYWOOD CORPORATION 567 announcement, and the request of Massingill to find out what the party was about , I cannot find that his actions in requesting or securing the information amounts to surveil- lance in violation of Section 8(a)(1) of the Act, and I would, therefore, dismiss this allegation of the complaint. As noted previously , Barber was not called by the Company and did not appear as a witness . Virginia Ingram impressed me as a witness who sincerely tried to tell the truth without stretching matters and I find that she was in the main a good credible witness. I credit her testimony as to her interrogation by Cameron Barber and find that thereby Respondent violated Section 8(a)(1) of the Act by interrogating her as to her union membership, activity, and desires. Virginia Ingram testified that on the day of the election, November 15, 1972, while she was waiting for the other observers to arrive , Production Manager Carrel Black came over to her and started talking about the Union and asked why the employees wanted a union . She responded that they wanted better wages and better insurance. He asked her about the amounts of money that the Union was paying to the union organizers who were attempting to organize the plant . She responded that if they compared their salaries with his she did not see anything wrong with it. Carrel Black testified that he could not remember the full discussion but was talking to her "about the Union and what could they do for you. And I explained to her how my daddy got messed up with this union once before and I couldn't see that it would benefit anybody." He stated that he did not remember asking if she was for the Union, but knew she was since she had acted as the union observer earlier that morning and he had been in a conference the previous day when she was present and it was announced that she would be the union observer . He states the conversation with her lasted some 5 or 10 minutes. In essence, Carrel Black's testimony substantiates that of Virginia Ingram in that he stated he discussed with her what the Union could do for her. She testified that he asked what they wanted from a union and what a union could do for them . I find that Black's interrogation of Virginia Ingram regarding her union desires and his statements which were an effort to discourage her participation in the Union violated Section 8(a)(1) of the Act. Barbara Ward testified that in late September or early October 1972 she went to the office to get a sliver taken out of her hand by foreman Barber. While in the office he asked why they wanted a union and was telling her about the disadvantages of the union and that money would be taken out of their paychecks. He showed her a booklet from another plant paying different wages, holidays, etc., saying that the union only had a I-day advantage on holidays. Barber further told her that at one time he had been in a union plant and the union people were nothing but crooks, that all they wanted to do was to get money out of the employees' pay. He stated that there had been some grievances filed against him at the other plant but he always had something up his sleeve anytime a grievance came in against him and that he would never leave the plant with a grievance against him, that he always had a way of getting out of it. While in the office talking, foreman Ivey came in and asked her why they wanted a union stating that the union representatives were making a lot of money and would get a lot more out of it if they got the plant organized. Ivey also said that they were making more money than some of the other plants in the area and that it would be stupid for them to get into the union , that a lot of people in the plant did not want it. She told Ivey that the people had a right to vote to see whether they wanted it or not , that she was 100 percent behind the Union . Barber stated that the Union's saying they would get more money was not going to do the people any good, that he was getting paid his money and the Company was not going to give out any more than they wanted to, so it would not do them any good to get the Union, that there would never be a union in that plant. She testified that she was in the office for over an hour and that a good bit of the conversation during that time was taken up with Barber and Ivey talking and questioning her about the Union. Barbara Ward appeared to make a sincere effort to recall the events and answered candidly . I found her to be a credible witness on the whole. There is nothing implausible in her testimony concerning her interrogation by Barber and Ivey and her testimony , that of Ingram and of Robert Thomas below show that Barber and Ivey were hostile to the union and seeking to dissuade employees from it. I conclude that Respondent violated Section 8(a)(1) of the Act by Cameron Barber's interrogation of Barbara Ward, his warning her that having a union would do the employees no good and that the Company would pay them what it wanted and that if they did get a union , filing grievances against him would be to no avail because he would have some way to get out of them . I further find that Respondent violated Section 8(a)(1) of the Act by foreman Ivey's interrogation of Barbara Ward as to why she and other employees wanted a union in the plant. Robert Thomas, who was employed by Respondent between January and November 1972, testified that about 3 weeks before the election foreman Ivey asked him if the Union was organizing at the time Thomas worked at American Can Company . He replied that it was, but that when the Union finally got in he was not working there anymore. He asked Ivey why he wanted to know about this. Ivey replied that he felt that Thomas might have been one of those who was trying to get the Union organized at this plant and then asked what Thomas was going to do, whether he was going to vote for the Union or the Company . Thomas replied that he was "with ya'll." Again there being no contradictory testimony offered by Respondent and with no explanation as to why Ivey was not produced to testify and Thomas ' testimony appearing to be credible, I credit it and find that Respondent, by its foreman, Charles Ivey , violated Section 8(a)(1) of the Act by interrogating Robert Thomas as to his union activities, thoughts, and desires. Thomas testified that on one occasion after he had passed out some union authorization cards foreman Ivey approached him and said something to the effect that he 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had not known Thomas was active for the Union. The testimony is not precise. General Counsel alleges this conversation to be the creation of an impression of surveillance of the employees' union activities and that Respondent knew which employ- ees were active on behalf of the Union. Thomas' testimony was not that exact. I am unable from the testimony in the record to find that Ivey's remarks to Thomas constituted an impression of surveillance of the employees' union activities and, accordingly, I would dismiss that allegation of the complaint. C. The 8(a)(3)-Concerted Activity Violations John Lee Barnes, the president of the Local Union, was a gray-haired man in his 60's who seemed to be a bit forgetful at times but was sure that the women were being discriminated against in the matter of their not having cokes at their jobs. At the union meeting held on the first Sunday of March (March 4), there was a discussion about the transfer of Clifton Collier from an oiler job to a lower paying job and the placing of a white employee in Collier's position. Among other topics discussed was the complaint that the women at the dryer tables were not being allowed to get cokes except during the 20-minute lunch break. The participants in the union meeting decided to elect a grievance committee to see if they could confer with the Company concerning these matters. Appointed as commit- tee members were John Lee Barnes, Virginia Ingram, Barbara Ward, and Roy Campbell. Barnes stated he would make the arrangements and on either Monday or Tuesday spoke to Personnel Manager Massingill asking for a meeting to discuss some problems. Massingill agreed and a meeting was arranged for the following morning. The four members of the committee agreed to assemble outside the plant but Campbell did not appear. Mary Ezell who had driven Barnes to the plant was drafted by the three members of the committee to become a committee member and went into the plant with them. At the time the plant was shut down due to a power problem and was not supposed to start up until later that morning. Superintend- ent Black met the group and conducted them to his office and Massingill joined them. There was a great deal of testimony concerning the discussions which took place in the office that morning. After examining all of the testimony, what follows is a synthesis of that conversation reconciling divergent parts where possible and crediting other parts where reconcilia- tion is not possible. The meeting began with John Lee Barnes stating that they wanted to discuss the question of Clifton Collier, that his people had been down too long to take a backward step at this point. He was interrupted by Personnel Manager Massingill who stated that if Barnes meant that the Company was following a policy of racial discrimination that was not true. He said the Company had a policy of no racial discrimination and that the only two foremen who were promoted from the ranks had both been black. Massingill also stated that the blacks in the plant held the highest paying jobs there. Massingill was then asked why Collier had been removed from his job, given a lower paid job and been replaced by a white employee. Massingill and Black stated that the Company had tried to train Collier to do the work but that Collier improperly oiled some of the machines and that two or three machines had broken down because of his improper oiling. They continued to try to train him but found they could not do so and therefore he was placed on a different job. To the question of why Collier had been replaced by a white man, Black said that the decision to promote Joe Bates into his job had nothing to do with his being white, but rather he was placed there because he had previous experience as an oiler with another company. Virginia Ingram stated that she was not supposed to be put back on her regular job because of medical restrictions, having just gotten out of the hospital and she was supposed to be on light work. Massingill said he had checked with her doctor as to what kind of work she was to perform and the doctor said the work she was performing was all right as long as it was not too heavy or too much and that in consultation with the foreman they had determined to let her work on the table for 2 hours and then relieve her for sweeping duties for the next 2 hours. A question was asked regarding the discharge of one man when two had engaged in a dispute in the plant. Black or Massingill stated that one man actually hit the other and had been discharged. It was stated that the one who had been hit had been aggravating the second man by hitting him with a board although it could have been accidental. One of the committee members asked why Charlie Miller had been fired and the Company explained that he had been fired for excessive unexcused absences, that he was always absent on Mondays. Barbara Ward complained about having to bring a doctor's excuse every time she was out for minor physical problems. The Company stated it was their policy to be sure that the employee was ready to come back to work by insisting on a doctor's excuse stating that the employee was physically ready and available for work. The Company alluded to this having something to do with their insurance. Barbara Ward said she did not like the present coke policy in that they could not drink cokes on the job and that it was hot out there. It was pointed out that there were water fountains around. She said that the water tasted bad and it made her sick and the only thing that she could drink was cokes. Black suggested that if she needed to drink cokes she should bring a thermos bottle of cokes and keep it at her work station. Ward stated that it was unfair for foremen to take coke breaks in the office and the employees were not allowed coke breaks. She said when Massingill put in the original rule but they could not have cokes out on the job, that when the job permitted they could take a short break and go to the lunchroom and drink a coke there, but later Cameron Barber changed the rule and said the girls at the dryer tables could not dank cokes except at lunch time. She said this was not fair when others were taking coke breaks. She also said it did not seem right to have to ask a foreman every time she wanted to go to the bathroom, that the foreman was not there all the time since at times they were in the office and sometimes were out in the yard. They also complained that Barber had recently told them they could not be relieved SUMTER PLYWOOD CORPORATION 569 by a sweeper in order to go to the bathroom which meant that the work could pile up. Ward said she had been given a warning the previous week about going to get a coke. Black said the warning slip was not for just getting a coke but for walking off the job without telling the foreman where she was going. The committee again pointed out that a foreman might not be around when someone needed to go to the bathroom and the present system was not fair. Ward said that if she was going to get a warning every time she wanted a coke they were going to have to get a lot of warning slips. Black said he knew of no reason for them having to report to a foreman if they wanted to go to the restroom but if there was a foreman in the area it would not do any harm to tell the foreman because they could not get in trouble by telling him. Black said an employee could be relieved any time they needed to go to the bathroom and Massingill added that he saw no reason why the girls could not be relieved by a sweeper in order to go to the bathroom. Returning to the subject of cokes either Black or Massingill stated that Occupational Safety and Health Rules provide that there should not be any litter or roaches or rats in the area where the employees work and that the litter problem in the plant had gotten so bad because of employee neglect that it attracted rodents and bugs and made the work area hazardous. Ward or Ingram said that if they could have permission to drink cokes back there (at the dryer tables) the employees could certainly see to it that the paper cups were put in the trash barrel. Black or Massingill said the employees had not been putting litter in the trash barrel although they had been warned about it. Committee members said there was only one trash barrel back there and they needed more in order to keep the place clean and that nobody ever came by to empty the trash barrel. Either Massingill or Black said that whenever someone with a forklift came by the employees could direct him to take the trash barrel up front and empty it and they would look into getting a second trash barrel. Either Massingill or Black said the employees did not need cokes until it got hot. Committee members responded that it was already hot back there and they needed the cokes now and that if they got permission to dunk cokes, they would see that the place was kept clean. Massingill said that one person could leave the table and get cokes for everybody and if they kept the place cleaned up and did not throw cups on the floor but put them in the litter barrel he felt it would be all right. Black agreed. The meeting concluded with Johnny Barnes stating that he hoped that no one would get fired because of this discussion with management . Both Massingill and Black assured the four employees there would be no repercussions from the meeting. I have credited the employees' version of the relaxation of the coke rule over Black and Massingill's. In the Company's cross-examination of the witnesses , it sought to bring out that the Company had stringent rules about employees leaving their jobs and there was some evidence that a very few employees had been warned or given warning slips by supervisors for leaving jobs unattended. An analysis of the warning slips introduced into evidence shows that for the preceding 9 months until the time of this discussion with management, for the entire 3-shift operations there were three written warnings for a person walking off the job and going to the lunchroom, three warnings for walking off the job and going to the lunchroom when the person had been told to do something else, and three warnings for leaving the job without being relieved This latter category does not appear to be comparable because at the time of the meeting with management none of the female employees at the dryer tables were getting relief. These warning slips were not explicit and could apply to not getting relief at shift change time or at other times . The other warnings put in evidence by management either follow the date of the discharges in this case or are not really comparable to any of the activities complained of here . In addition to the above is the March 2 warning to Ward for: You walked off of yourjob to visit other people at there work stations. You were seen talking to Dorothy Watson at 5:25 p.m. and earlier with Wilson Washing- ton. and the February 3 warning to Ezell; "Your walking off of your job at 5:15 p.m." Ezell stated that she signed the warning after being told by Barber that it was for reporting late and she said she did not read it. The warning to Ezell as shown above was dated on another date than that testified to. Johnny Barnes testified that the employees on the "green chain" drank cokes and take breaks particularly when the "green chain" broke down, which was every so often. After some discussions about how rigid the rules were , Massingill testified that in this meeting Black said it was not a requirement to have to notify the foreman if someone has to go to the bathroom. They did state that it was best to do so if a foreman was available so the foreman would know where a person was and not have to wonder whether they had gotten hurt, sick, or gone home. The company representatives testified that if there was a problem of bringing cokes into the plant area they would look into it, that maybe when hot weather came they could relax the rule if they could be convinced that the litter could be kept off the plant floor. Asked what it would take to convince them the litter could be kept off the plant floor other than by allowing the employees to try it out, management representatives digressed and then later tried to explain it by saying that they could tell that if the employees kept the lunchroom picked up . No mention whatsoever was made by either the employees or the management representatives that such a statement was made during this meeting. If that was to be the test then surely it would have been so stated. This explanation appears clearly to be an afterthought in an attempt to justify Respondent's version of the event. The clearly obvious way to tell if the employees were going to keep the plant area free of litter would be to try it out, if not plantwide, then in one particular area . This logical extension of the remarks follows an admitted talk about securing additional garbage cans for that area and having the garbage cans emptied by a forklift driver. Respondent goes to great lengths in its testimony and in its cross-examination in an attempt to establish that this was a rule change which should only have been announced 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by a supervisor or foreman to all employees and that the committee members going back to their jobs and telling other employees of the rule change was an assumption of the Company's prerogatives and was intended as harass- ment of the Company by these employees. This position is rather "far-fetched" when it is remem- bered that this was a group of employees unsophisticated and untutored in labor relations , who were acting on behalf of the local union and the employees in meeting with the production manager and the personnel manager of the plant, (two of the highest officials present at the Company) to discuss employee problems . Massingill, who had announced to the employees the original coke rule, was in this instance with Superintendent Black announcing a relaxation of the rule for these employees at least in that particular section of the plant. Barnes clearly felt from his testimony that the rule was not rigidly enforced in the other plant areas, stating that there was discrimination against the women since he , among others, was drinking cokes down at the "green chain" end. Further support for this conclusion comes from the fact that apparently both Black and Massingill were surprised that employees were not being given relief by the sweepers when they had to go to the bathroom. Despite Respon- dent's contention that it was necessary to have four employees pulling veneer off the round tables at all times there was an acknowledgment that the Company had changed the practice and had three employees pulling veneer and one employee grading it . The employees complained that it was tough to keep up and became impossible when it was necessary for one to leave and they had no relief . Management told them that three pulling and one grading was only a temporary thing which would probably be changed. I have concluded that the committee members were under the impression when they left this meeting that the coke rule had been relaxed , provided that the employees kept the work area cleaned up and allowed no litter on the floor. If management had not intended such a result neither Black nor Massingill made it clear to these employees. Representing the Union and the employees they felt that a harsh rule had been relaxed by those with authority to do so. They did not consider there to be a necessity for someone to make a formal announcement, but gave the good news to their fellow employees when they reported to work . Respondent's attempt to portray their actions described below as deliberate violations of company (unwritten) rules and as an attempt to harass management is ludicrous. The four committee members worked on the second shift and when the three ladies reported that afternoon they told their companions at the two dryer tables that the coke rule had been relaxed and that they could send one girl up to get cokes for the group and bring them back to the table. Virginia Ingram worked on dryer table no. 1 and Barbara Ward and Mary Ezell worked on dryer table no. 2. After being at work between a half hour and an hour , Ward went and got cokes for the girls at table no. 2. On the way back one of the cokes spilled and Mary Ezell did not get one. Fifteen minutes to a half hour later Virginia Ingram went to get cokes for those at table no . I and a coke for Ezell. On the way back from the lunchroom she was stopped by foreman Cameron Barber. Ezell, in the meantime, had gotten a splinter in her hand and was going towards the foreman's office to get it removed . Barber told Ingram that she could not bring cokes into the plant . She told him that the union committee had a meeting with Massingill and Black that morning and Massingill and Black had given them permission to drink cokes at their work stations. Barber said to go ahead and drink those and not to bring back any more . Ezell testified that after getting the splinter in her finger, she had gone to see Bollinger who told her to see Cameron Barber about it. After waiting for Barber for a few minutes they started towards the office and Barber asked Ezell "Mary, how come you'all didn't come to me with your, meeting, with your problem?" She told him that it was not concerning him then, that his name did not come up in it. He said that when he heard about it , it made him damn mad . When they came up to Virginia Ingram , Barber questioned Ingram about the cokes and she told him Massingill and Black had given them permission to have them in the plant . Barber said that Black and Massingill did not run the damn job , that he did . Barber told her to go ahead with them but make sure those cokes were the last ones they drank in there . Ezell got her coke and went by the lunchroom and drank it, threw the cup in the garbage can and went upstairs where Barber washed her hand off and put a bandage on it . While in the office Barber told Ezell that Carrel Black and Massingill always got the employees off of their backs and put them on to his. When Ezell left the office she went back to her table and told Virginia Ingram that Barber had complained to her about not taking the problem to him and that it made him damn mad. At that time dryer no . I was broken down and Virginia Ingram was sweeping the area. Earl Bollinger, who was a nervous and not impressive witness, testified that while in the plant, foreman Barber approached him and asked if Sam Massingill could run the plant and he said no, not as far as he knew . Barber said that Virginia Ingram had gone to the lunchroom and gotten cokes and was taking them to the work area when he asked her about it. Barber related that Ingram said Black and Massingill in a meeting that morning had given them permission to have cokes at the job . Bollinger said Black and Massingill had told him of a meeting with employees and asked Barber to bring Ingram to his office. Some 10 to 15 minutes after Ezell had returned to her job Cameron Barber told Ingram , Ward, and Ezell he wanted them in the office and had other employees take their places. Respondent's counsel sought to establish that only Ingram had been called to the office and that Ezell and Ward took it upon themselves to go there . However, their testimony is clear that they were called to the office and there is no countervailing testimony . When they got to Bollinger's office, Bollinger asked Barber what the problem was and Barber said he wanted Bollinger to tell the employees that they could not break any rules, that they had gone and gotten cokes and had drunk them. Bollinger then told Ward and Ezell to leave, that he was going to talk to Ingram . Barbara Ward said that if it was about the cokes, they were in on it too. Bollinger repeated that he just SUMTER PLYWOOD CORPORATION 571 wanted to talk to Ingram and they were sent back to their jobs. Ingram testified Bollinger asked what was wrong and she replied that Massingill and Black had said that they could drink cokes on the job at the meeting a group of employees had with them that morning. Bollinger said that Black and Massingill had not said that. She repeated that they had given such permission . Bollinger told Ingram that having cokes in the plant was a violation of the Occupational Safety and Health rules, knowing that such was not true. After some further discussion Bollinger told her to go home and come back in the morning . She told him she did not want to go without having talked to Massingill or Black first because they were the ones who had given them permission to drink cokes in the plant . She asked permission to call them . Bollinger started to call them and said no, he was not going to do so . Again she repeated that she wanted to talk to them before she left the plant. He made a telephone call and talked to either Massingill or Black. Bollinger told her that they had said they had not given permission for cokes and for her to go home and come back the next day . She was refused permission to talk to either Black or Massingill on the telephone. Bollinger told Cameron to go get her purse and take her out. She said that she would pick up her own things, that no one was going to pick them up for her. Barber went with her and did not give her a chance to talk to anybody . She went back down to the plant and picked up her sweater and purse and was escorted out of the plant by Barber. Bollinger testified that when he sent her home he had no intention of discharging her. There was no testimony that Ingram had told any of the employees that she would return the following day. Ward, Ezell, and some of the others talked in the lunchroom and decided that if Ingram did not return to work by 8:30 p.m., which would have given her enough time to go home and return to the plant, they would ask Cameron Barber what her status was. Ward was also concerned because she rode with Ingram . At 8:30 dryer no. I was still shut down and one of the glue pressers and another machine in the dryer end of the plant were shut down , and the flow of materials on table 2 had nearly stopped . Ingram left dryer table 2 and went towards Cameron Barber who was at a press. Mattie Lake, Foster, and some of the employees followed Barbara Ward . She and Barber met near the glue machines . Ward asked Barber to close down dryer no. 2 for 5 or 10 minutes, that they wanted to talk to him about Ingram . He asked why they wanted to close the dryer down and she said so she could talk to him about Ingram. Barber said he was not going to close down the dryer and would talk to them at II o'clock when the shift closed. Ward said, "no, we want to talk to you now because we might not get a chance to see you at I I." Barber said he had had enough hell that day and did not have time to fool with them . By that time , according to Barbara Ward and Mary Ezell, a number of the employees had come up behind her. Barber said that if they did not get back to work he would fire them . They said they wanted to ask him about Virginia Ingram . He told the whole group to go back to work and nothing would be done about it, but if they did not he would terminate every one of them . Again Ward said, "Cameron , we only want to ask you one question, where is Virginia Ingram ?" He said it was no damn concern of hers where she was and to get on back to work Ward said they were not going back to work until he gave them an answer. Barber said "come on down to the office and I will terminate every one of you ." He left and started walking towards the office. The rest of the group followed behind him . He went up the steps to the supervisor's office and closed and locked the door. Barbara Ward , who had tried to keep up with him, attempted to open the door and found it was locked . The group of employees gathered below at the steps and she went down telling them that the door was locked. About that time the green end chain had broken for lunch and the whole group of employees came and gathered around near the foot of the steps leading to the office waiting for Barber. Massingill testified that he received a call from Cameron Barber that night stating that there was a problem at the plant, that he had confronted Virginia Ingram for leaving her job and going and getting cokes and a delicate situation had come up and he should return to the plant, that a group of employees were sitting in front of the lunchroom and said that they would not go back to work. Black and Massingill both got to the plant and went up to the office where Barber and Bollinger were . Massingill stated that he talked to the vice president of the Company and also to Respondent's attorney, Jolly. After conferring for some 15 minutes Black and Bollinger went down to talk to the employees By this time all the employees in the plant were gathered at the steps outside the lunchroom. Black asked the group what was the matter . Barbara Ward spoke up and said that all they wanted to do was ask one question, where was Virginia Ingram . Black said she had gone home, that she and Earl Bollinger had a misunder- standing, and that she would be back to work in the morning. Ward said that if they had sent her home about the cokes, she was the first one to go get them and that she was sure that Earl Bollinger had seen her do so . Black said that you are not supposed to have cokes . She replied that in the morning that Black had said that they could have cokes as long as they put the cups in the garbage can. He said that he did not say that . She told him that he had said that to the four employees who were in the office and that is the reason why they went and got the cokes. Someone else spoke up and asked whether Ingram had been fired. Black said no, that she would be back to work tomorrow on her regular shift. Black stated that if anybody wanted to discuss the matter on an individual basis he would be in his office and would talk to them there . The employees went back to work. The Company sought to give an impression that some veneer might have been lost by the work stoppage and that there could have been a danger of fire but there was no testimony that there was any wood lost or that anything had been lost except the production for that period of time. The next morning Ingram went to the plant as she was told to do so by Bollinger , and Ward and Ezell went to talk to Black following his invitation of the previous evening to talk to them individually about the matter . Ingram was told that they were busy and to go home and come back that afternoon and she left . After Ingram left, Ruth 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Spencer. Mattie Lake, Alberta Gannon , Mary Ezell, and Barbara Ward were waiting to talk to Black concerning grievances. Ruth Spencer went in and talked to Black and when she came out Ward went in and talked to Black. She said she told him three women could not pull off the table at one time and that they needed a fourth . Black said they would do something about it, it was just something they were trying out at that time . That afternoon Ward rode with Ingram to the plant and when they got there Bollinger asked both of them to come into the office . Ezell was standing near the office . Ingram went into the office first and was told that they had only one thing to tell her, that she was terminated. She asked what he said and he repeated "you are terminated ." She asked what he meant by that and he said you are fired . Ingram came out carrying her check . Ward was called into the office and Bollinger said "Barbara, after careful consideration, we've decided to terminate you. Here is your check and get off our property." She came out of the office and saw Ezell go in and later come out with her check. Ezell testified that when she got to the plant that afternoon Bollinger met her at her car and said he wanted to see her in the office. When she got there she asked him what it was about and he said he would see her in a few minutes and have a seat . Virginia Ingram and Barbara Ward came to the office and Ingram was called in first. When she came out they asked if she had been fired and she replied , "yes, I've got to get off the company property." Barbara Ward then went in and came out with her check and then Ezell was called in . Bollinger said. "Mary, here's both your checks. You are fired. Get off company property." On that morning a meeting of company officials was held consisting of Massingill , Black, Bollinger, Respondent President McCloud, and a chairman and a vice president of Respondent's parent company plus Respondent's attorney, Jolly. Black and Massingill testified that they discussed the events of the previous day and a decision was made to terminate Barbara Ward based on "the fact that she had been in the meeting the previous morning, that there couldn't possibly have been no misunderstanding." Massingill further stated that Ward had "purposely, wilfully violated policy, the rules of the Company as related to walking off the job , going to get a coke when she felt like it, and the fact that she had made the statement to both Mr. Black and I that previous morning that if she was to be given a warning every time she wanted to get a coke the foreman had better get a stack of warnings a foot high. Her unsatisfactory employment record was considered." The only thing shown as to any unsatisfactory employment record is that a written warning had been given to Ward one time previously for walking off the job . Nothing was said that any performance of hers was bad , only that her performance records had been reviewed. Black testified that Ward was terminated because she had been given a warning slip for walking off the job and for having said it would take a stack of warning slips a foot high if she were to be warned for going for cokes every time and according to him it appeared there was no way to make a good employee out of her if she was going to defy company rules. Bollinger testified regarding Ward that, "they reached the conclusion that there could possibly be no misunder- standing from what had been said in the meeting." He added that she was discharged for knowingly violating the rule. As to Ingram, Massingill stated they decided to fire her since she had been in the meeting and there could possibly have been no misunderstanding that she had wilfully violated the rules by getting cokes and bringing them into the work area. Massingill added that she was confronted with this by Bollinger in the office and had no desire to listen to the reasons he gave and she was beligerent and would not listen to him when he discussed the rule about not permitting cokes in the work area. Black said the Company decided to terminate Ingram for violating the company rules deliberately and defiantly. Regarding Ingram, Bollinger said they decided to discharge her "because she had been given written warnings before and it was obvious that she was not going to heed this warning and that there was no other alternative but to terminate her." As to Mary Ezell, Massingill stated that she was discharged due to "The fact that Mary Ezell had been present in a meeting the morning before, she knew that the rule had not been changed. The fact that she had willfully violated this policy of going to get cokes without permission of the supervisor, that she had done this knowingly, that her actions that night leading to a work stoppage that resulted from her knowing that this rule had not been changed, apparently she was second in command of the work stoppage ." He later adds to this that he found out that she had had a coke in the plant. Black states the reason for Ezell 's discharge that she was fired for the same reason as Barbara Ward, was doing the same thing, and had been given a warning slip a couple of days prior to her termination . He concluded that Ezell was "just deliberately harassing management." Bollinger says they decided to fire Ezell because when she came to his office , "Mary voluntarily said that she had a part in sending Virginia into the lunchroom to get cokes to bring back to the other employees." In response to further questioning he added that in the meeting the day before she had been told she could not take food and drink to the work area. He said that the only thing bad about Ezell was that she had been in the meeting , had been told not to get cokes and admitted having a part in it. The reasons given for the three terminations, by Black, Massingill , and Bollinger are not consistent and are not the same as those reasons enunciated by the Respondent's attorney. Clearly the reasons enunciated for the discharge of Ezell encompassed the fact that she participated in the work stoppage the evening before when the employees concertedly sought to find out what had been done with Virginia Ingram. The other reasons advanced that she had done the same thing as Barbara Ward is patently false as the facts disclosed. Clearly, Ezell never left the area to go get a coke and bring it back to the employees . The only thing Ezell was guilty of was participating in a work stoppage that evening and having drunk a coke in the plant after having participated in a meeting with management that morning. There was no testimony from any credible witness that Mary Ezell admitted anything in her brief SUMTER PLYWOOD CORPORATION 573 appearance at Bollinger's door. All the credible testimony is that only Ward spoke then. Further if the reason for discharge is the sending of a person to get cokes why was there no disciplinary, action sought against the others who had sent Ingram for cokes? The testimony indicated that Ingram was carrying a box with five or six cokes in it. When asked this question Bollinger dissembled saying he did not understand it. Massingill's testimony comes closest to the truth when he talks of Ezell's role in the work stoppage and in her being on the committee. The fact that Mary Ezell was thought of as the "second in command" makes it clear that consideration must have been given to the "first in command" of the work stoppage the previous evening, Barbara Ward. The fact that the employees felt strongly enough about Virginia Ingram to have a work stoppage must certainly have convinced Respondent of her importance to the employees and to the local union organization and the esteem in which the employees held Ward. Bollinger said Ingram had received a previous warning and she had not. He later admitted he might be mistaken. The manner of the committee members, the way in which the meeting ran and the cautious concern of the union president as to whether such a meeting would get them discharged, shows that this was not a group of employees who would take it upon themselves to knowingly and deliberately violate company rules. It is clear as stated above that these employees had the clear impression that they could drink cokes in the dryer end of the plant. The conversation as stated above establishes this. If there was a misunderstanding it was management's. That there was some dissension in manage- ment ranks is shown by Barber's remarks that he ran that particular section of the plant and that the production manager and personnel manager did not do so and his remark to Ezell that Black and Massingill were trying to get the employees off their backs and onto his by giving them permission to drink cokes. The credited account of the committee meeting with Black and Massingill, the fact that these employees sought permission to have the rule changed rather than sit back and violate it, and the confused, contradictory, and erroneous reasons given for the three discharges by management all weigh heavily in favor of a violation. There is no logical explanation to management admitting it told an employee she could take a thermos full of cokes to her work station, stating it knew that Occupational Safety and Health rules did not forbid cokes on the job, but telling employees that it did, and then stating it was a firm rule that employees could not have cokes. Management also confused the no coke rule with leaving the job. But in the meeting management representatives were somewhat shocked to hear that Barber would not allow sweepers to relieve the employees at the dryer tables so that they could go to the restroom . After many statements it became clear that management preferred employees to get permission to leave their job but if a foreman was not around it was alright to go to the restroom without notifying a supervisor. It should be noted that Respondent's written violation forms has a space for the violation number and on some of them it is noted as the second or third violation, while these slips for Ward and Ezell were apparently the first. Considering all these matters including the lack of sophistication in labor matters of the committee members as compared to the high powered group which determined on the following day to discharge them, the fact that from the events of those days there was a viable union organization despite the previous 8(a)(1) violations, and that despite winning the election some 4 or 5 months previous , certification had not issued because of the Respondent's contesting of the election , it becomes clear that management seized on a minor episode and sought to blow it into major conflagration in order to rid itself of the apparent sparkplugs of the Union . The work stoppage was considered according to management testimony and the fact that the Union and its leaders could manage a work stoppage at that point in the drawn-out R case procedure was sufficient for Respondent . Recall that Bollinger had no intention of discharging Ingram when he sent her home, much less there being anything against Ward and Ezell, but the work stoppage in protest to the Company's action brought out Respondent's forces in full. Respondent seized on a minor incident feeling that it could use it to retaliate for the work stoppage, and eradicate the union leaders. I conclude and find that by the discharge of Virginia Ingram, Barbara Ward and Mary Ezell , Respondent violated Section 8(a)(3) and ( 1) of the Act in that it discharged them both for their union membership and activities and for the fact that they engaged in concerted activities in support of the Union and of union members. On that evening or the next morning following the discharges, the employees struck and picket lines were established outside the plant. Some employees crossed the picket line and on Wednesday morning of the following week, Barnes took the employees back into the plant. All the employees were returned to their shifts andjobs and no question or issue was raised about any employee as to any conduct engaged in while the strike was on. One of the returning employees was Suzie Spence Steele, a first-shift employee who worked at one of the dryer tables. She went out on strike with the other employees and remained out until Wednesday morning. When they went in Black met the incoming group of employees and talked to them in the lunchroom saying that no one was going to be fired and they were to go on back to work. Steele went to her station at dryer table no. I and, while putting on her apron , heard Pearl Ward (no relation to Barbara Ward) "cussing." Pearl Ward had gone out on strike originally, but she and her sister, Ethel Gibbs had both returned to work on either Monday or Tuesday and had worked the third shift before Wednesday morning. Pearl Ward was getting ready to leave while Ethel Gibbs was going to work another shift on the same dryer table with Suzie Steele. Steele testified that she turned around and asked Pearl Ward if she was referring to her and Pearl Ward said she knew they would all have to come back in sooner or later and that she was referring to anybody, that she would kill somebody that morning, that she was mad. Steele contin- ued to put on her apron. Pearl Ward's sister, Ethel Gibbs, said that whatever her sister says she'll do, she'll do because she ain't got no better sense. About that time Pearl 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ward began to open her pocketbook and to back up with her hand in her pocketbook. Steele told Pearl Ward that if she pulled a gun or anything out of there she would put Pearl Ward's "lights out." Steele testified that Ethel Gibbs came around the table and picked up her pocketbook and started to open it and said to her that "if my sister don't her [sic] you I will." Steele told Ethel Gibbs that if she pulled a pistol or anything on her she would "put both you all's lights out." Steele testified that on one occasion she had heard Gibbs threaten to use a pistol on somebody and had seen a pistol in Ethel Gibbs' pocketbook in the plant. About that time Earl Bollinger came up to the group and asked what was wrong. Steele told Bollinger that Pearl Ward was threatening to shoot her and that Ethel Gibbs had said that if her sister didn't get her that she would. Bollinger said, "Aw, forget about it and go on back to work," and turned to Pearl Ward and told her she had better get on out of the plant, that she should have been half-way out of the plant by that time. Steele turned around and started to work pulling veneer off the table. She testified that she did not take a purse to work, had on a pair of jeans and had nothing in her hands but her gloves. Around 9:30 that morning Earl Bollinger came out and made a search around the tables, called Ethel Gibbs over, talked to her then left and went back to the front of the plant. About 10 minutes later her foreman told Steele that another girl would pull in her place and he wanted to see her. He told her to gather her belongings. She said that she did not have anything but her apron and gloves. He told her to get her pocketbook. She said that she did not bring a pocketbook with her. He asked are you sure and she said she was quite sure. They went towards the front of the plant and he told her to come to the office. She told him that she was not going to go to the office by herself, that she wanted Union President Johnny Barnes to go with her. She testified that Barnes had told the employees when they went back in that morning that he was there on behalf of the Union to protect them and if they had any questions or anybody was sent to the office to contact him and he would come along and represent them. Barnes was sent for. In the office Steele started to say something and was told to knock it off. Black handed her an envelope with her name on it with her check inside, saying you are terminated. When she asked why, she was told for threatening a girl and to remove herself from Respondent's property. Suzie Steele is 3 or 4 inches shorter than either Ethel Mae Gibbs or Pearl Ward, and while Pearl Ward is thin, Ethel Mae Gibbs is a much larger woman than Suzie Steele Pearl Ward testified that on that morning she was looking at the employees who were coming into the plant and in particular at Suzie Steele. She said Steele asked what she was looking at her for and called her a string of foul names. Pearl Ward said she replied that Suzie was another one. Steele said she would kill her, using some more foul language. Pearl Ward said she reached over, got her purse and put it on her arm, got her coat, and she started to back up and that Suzie Steele said if she opened her purse she would break her neck and at that time Steele had her hand in her pocket. She says that another girl said let's go and as they went out of the plant they saw Massingill who asked her what had been said and she said Steele had threatened to kill her. A group of the employees who were leaving the plant went to the office with Massingill. Ethel Gibbs testified she did not know what happened that morning between her sister and Susie Steele but she looked around and saw her sister backing up and Steele walking towards her. She says that after her sister had left the work area she heard Steele say that she would kill her, and she spoke up and told Susie that she would not do that. She testified that she had never taken a real gun into the plant but had taken a play gun into the plant. During cross-examination she admitted that at one time she did have a pistol permit and had owned a pistol but said it was torn up. She admits that she may have told people that she had a pistol permit but does not remember ever showing anybody a pistol in the plant. She stated that she carried a purse every day and thought that Suzie Steele was about to fight with her sister but that she did not know. She stated that her sister was backing up while bent over with her belongings clutched to her stomach. She did not know whether her sister carried a pistol or not, or whether her sister had a permit to carry a pistol. The two sisters live together. During cross-examination of Suzie Steele and in the presentation of its own case, Respondent sought to show previous behaviour of Suzie Steele as it concerned Ethel Gibbs. Nell Taylor, an employee who worked through the strike, and Ethel Gibbs testified that when they left the plant on Tuesday after having worked the third and first shifts, they drove in Nell Taylor's car to a store about 2 blocks away. While Nell Taylor was in the store, Suzie Steele, with several strikers drove up and pulled behind or to the side of Nell Taylor's car so that Taylor's car was blocked. Steele stated that she could not back up when Taylor came out because a car was coming down the road but backed up within a few moments. Taylor and Gibbs testified that Steele said that she wanted something in that car that-Ethel Gibbs. Steele backed up and Taylor left. Taylor and Gibbs testified that Steele's car followed them back towards town and turned off before the river bridge. Taylor who lives on the other side of Livingston, Alabama, stopped at the sheriffs office but the men there were busy so she drove to her home. Gibbs had parked her car at Taylor's home and ridden to work with her. On reaching her house, Nell Taylor called the plant and spoke to Black telling him that Suzie Steele had blocked the road on her. Black advised Taylor to contact the police for protection. Black testified that from what Nell Taylor said he thought that Suzie Steele and other strikers had blocked the road in front of Nell Taylor's home and for that reason he advised them to contact the police. A policeman escorted Ethel Gibbs' car back to the plant from where she drove by herself to her home. While sitting on the front porch talking with her sister, Pearl Ward, Suzie Steele drove up with several employees in her car. Pearl Ward went and sat in another car in the front yard and listened to the conversation between Gibbs, Suzie Steele, and the others. They said they wanted to talk to Ethel Gibbs about going back to work, since they had all agreed to stay out of work. Gibbs replied that she had children to feed and she SUMTER PLYWOOD CORPORATION 575 could not afford to lose work. The others said they had kids who got just as hungry and wanted her to stay out. According to Gibbs, a statement was made that the Black Panthers had taken over the situation and might kill people in the plant, that people had been killed in other plants. That evening when Ethel Gibbs and Pearl Ward went to work they went to Nell Taylor's house, parked, and went in her car. When they got to the plant they saw Massingill and told him of the visit of the strikers. Personnel Manager Massingill testified that during the afternoon Black told him he had received a telephone call concerning Susie Steele and that evening about 10:50 when Taylor and Ethel Gibbs came to work he talked to them. They reported the events at the store and at Gibbs' home. The following day when the shift changed Nell Taylor came to him and said that there had been an incident in the plant. Taylor gave him her version of it and as other employees were coming out of the plant (all of whom would have been persons who did not stay on strike) he asked if they had seen the event. They indicated that Pearl Ward was most directly involved and he asked her version of it, and took seven or eight employees to his office where a statement was given by Pearl Ward which the others signed in his presence. As soon as he got the statement he got together with Black and Bollinger, called the company attorney, related the incident, and it was decided to terminate Susie Steele. Massingill testified that he was aware of the events at the store and of the visit to Gibbs' home but decided they were not serious and not to take any action although he realized that an employee could be fired for participating in strike violence. Therefore nothing was said to Steele when she came back to work. He said the report he received that morning was that while Pearl Ward was attempting to gather her belongings and leave the plant Susie Steele called her names. Pearl Ward did not try to engage in replies but attempted to leave and that Steele threatened her. He stated that nothing was said about Ethel Gibbs playing any part in the confrontation. He admitted that although a lot of foul language was used, the Company has no rule on profanity stating that they would not have any employees if they had such a rule. Black testified that in discussing Steele with Massingill, Bollinger, and Shift Foreman Pugh, Massingill reported the incident in the plant and that Steele had threatened Pearl Ward's life. After hearing this he sent Bollinger to get Susie but she said she would not come to the office unless Johnny Barnes came. He gave Steele her check saying that was her final check. She wanted to know why and Johnny Barnes said he would handle it and tell her. He states that he told Barnes that Susie had been fired for threatening the life of an employee in the plant and he would not tolerate it, that she had brought something from outside the plant into the plant. During cross-examination Black said that supervisor Larry Demos was present during the confronta- tion between Steele and Ward and that Steele had advanced toward Ward and other employees intervened. (This is the only testimony to this, no one of the participants having said so and Demos not being present as a witness.) Black testified he could not say exactly what was said except that the report to him was that Steele called Ward a bunch of names and said she would cut her throat or something similar. Asked whether Ethel Gibbs was involved Black said he did not recall anyone saying so. Black admitted he did not ask Steele for her version of the events because he said others in the plant had already told him what happened, that Steele was discharged for threatening another employee in the plant, that she was bringing something (the strike) from outside the plant into the plant. Based on the discharge reasons given the testimony elicited by Respondent concerning what oc- curred outside the plant is extraneous to the matter to be considered and only the, conduct within the plant is relevent to Steele's discharge. Clearly the happenings outside the plant were not of any magnitude nor even correctly reported as shown by Bollinger's and Black's understanding of the "blocking the road" business report- ed by Nell Taylor. Respondent felt they were of no moment, since knowing of them before she returned to work they would have attached a caveat to her return if they thought otherwise. What we have then are two versions of that morning's events, one by strikers and one by those who worked during the strike. It is apparent that at one point the Company assumed that Susie Steele had threatened Pearl Ward with a gun in a purse. For that reason a supervisor was sent to check on Susie Steele's purse and its contents, but Steele had no purse. The question of a gun being in a purse and a threat to kill was that threat made by Pearl Ward, her use of her purse that morning and Steele's knowledge that Pearl Ward's sister owned and had brought a pistol to work. Steele in the circumstances of Pearl Ward's threat, and I credit her in this, certainly had a right to defend herself against a threat of harm. The supervisor's statement that it amounted to nothing and for Pearl Ward to get out of the plant, that she should have been long before then, clearly should have been the end of the matter. Here Respondent seized on a one-sided investigation, if it can be called that, of a matter to rid itself of another union adherent. Respondent apparently was willing to take the word of any of the employees who had not gone on strike against that of a striker, because it made no effort to ask any of the strikers or those working on the first shift as to what happened. When the supervisor found that Steele did not have a purse with a gun, Respondent should have been alerted to misstatements. Vile language may have been used but as it was stated, if the Company had a rule against bad language there would be no employees in the plant. At most this was a minor incident blown to a distorted size by Respondent in its one-sided "investigation" and it seized on the events to eradicate a union sympathizer and activist who had been a striker. I find that by its action in discharging Susie Steele Respondent violated Section 8(a)(1) and (3) of the Act. 111. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, above, have been found to constitute unfair labor practices in violation of Section 8(a)(3) and (1) of the Act and, occurring in connection with Respondent's business operations as described in section 1, above, have a close, 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD intimate, and substantial relationship 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. IV. THE REMEDY Having found that Respondent discriminatorily termi- nated Virginia Ingram, Barbara Ward, and Mary Ezell on March 8, 1973, and Susie Steele on March 14, 1973, because of their actual and suspected union sympathies and activities, and because of their concerted activities, I recommend that Respondent offer them immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions without prejudice to any seniority or rights and privileges they may enjoy. Respondent shall make them whole for any loss of pay they may have suffered by reason of the discrimination against them, by payment to them of a sum equal to that which each would have received as wages from the date of her discharge until she is fully reinstated, less any net interim earnings. Backpay is to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, with interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. I further recommend that Respondent, upon request, make available to the Board payroll and other records to facilitate checking the amounts of backpay and any other rights due Virginia Ingram, Barbara Ward, Mary Ezell, and Susie Steele. Respondent also engaged in interrogation of its employ- ees concerning their union membership, activities, or sympathies in an effort to dissuade their participation, threatened that it would be futile for the employees to organize a union because the Company would not pay higher salaries, Respondent's supervisors would nullify union grievances and that Respondent would not have a union in its plant, and I recommend that Respondent be ordered to cease and desist from violating the Act in the same manner or any manner similar to these violations. On the basis of the foregoing findings and the entire record, I make the following: CONCLUSIONS OF LAW 1. Sumter Plywood Corporation is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatorily terminating Virginia Ingram, Barbara Ward, and Mary Ezell on March 8 and Susie Steele on March 14, 1973, and not thereafter reinstating them to their positions because of their actual and suspected union sympathies and activities and their concerted activities, Respondent engaged in and is engag- ing in unfair labor practices affecting commerce within the 2 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec meaning of Sections 8(a)(3) and (1) and 2(6) and (7) of the Act. 4. Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act by: (a) Interrogating employees concerning their union membership, activities, and sympathies; (b) Threatening that it would be futile for the employees to organize a union because the Company would not pay higher salaries, Respondent's supervisors would nullify union grievances, and that Respondent would not have a union in its plant; 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: ORDER2 Respondent, Sumter Plywood Corporation , its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees and refusing to reinstate them in order to discourage these employees and other employ- ees from being or becoming union members and for engaging in concerted activities. (b) Interrogating employees concerning their union sympathies, activities, desires, or membership. (c) Threatening that it would be futile for the employees to organize a union because the Company would not pay higher salaries, Respondent's supervisors would nullify union grievances , and that Respondent would not have a union in its plant. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organiza- tions, to join or assist UBC Southern Council of Industrial Workers, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, CLC, to bargain collectively with representatives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Virginia Ingram, Barbara Ward, Mary Ezell, and Susie Steele reinstatement in accordance with the recommendations set forth in the section of this Decision entitled "The Remedy." (b) Make Virginia Ingram, Barbara Ward, Mary Ezell, and Susie Steele whole for any loss they may have suffered by reason of Respondent's discrimination against them in accordance with the recommendations set forth in the section of this Decision entitled "The Remedy." (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 the amount of backpay and the rights and privileges due Viiginia Ingram , Barbara Ward, Mary 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 SUMTER PLYWOOD CORPORATION Ezell, and Susie Steele as set forth in the section of this Decision entitled "The Remedy." (d) Notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of their 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. (e) Post at its Livingston, Alabama, plant and office copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's 3 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 read "Posted Pursuant 577 authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 10, in writing, within 20 days from the date of the receipt of this Order, what steps the Respondent has taken to comply herewith. to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "