Carolina American Textiles, Inc.

CAROLINA AMERICAN TEXTILES, INC. Carolina American Textiles, Inc. and Textile Workers Union of America, AFL-CIO, CLC. Cases 11- CA-5485, 11-CA-5666, and I 1-CA-5707 July 24, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On January 29, 1975, Administrative Law Judge Eugene George Goslee issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge, except as modified below. We find, in agreement with the Administrative Law Judge, that Respondent violated Section 8(a)(1) by Supervisor Fowler's asking employee Shelf why she wore a union button and informing her of the source from which she obtained the button. We do not, however, agree with the Administrative Law Judge that this is a case wherein the single violation found is not sufficiently serious to warrant issuance of a remedial order. See, e.g., Texberry Container Corporation, 217 NLRB No. 18 (1975), and Mike Ve- lys, et al. d/b/a R & M Electric Supply Co., 200 NLRB 603 (1972). We regard as a serious violation of the Act the Respondent's conduct described above and view it as an attempt to restrain its employees from exercising rights guaranteed by Section 7 of the Act. Accordingly, we find that it will effectuate the purpose of the Act to issue, as provided below, our usual remedial order for the violations found. AMENDED CONCLUSIONS OF LAW 2 Substitute the following Conclusion of Law 3 for that of the Administrative Law Judge: i The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty 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 ( 1950), enfd. 188 F.2d 362 (C.A. 3, 1951 ). We have carefully examined the record and find no basis for reversing his findings. 457 "3. By asking an employee why she wore a union button and informing her of the source from which she obtained the button, the Respondent has en- gaged in unfair labor practices as defined in Section 8(a)(1) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Re- lations Board hereby orders that Respondent, Caroli- na American Textiles, Inc., Greensboro, North Caro- lina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their union and/or protected activities or giving em- ployees the impression that such activities are under surveillance. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action which is found necessary to effectuate the purposes of the Act: (a) Post at its Greensboro, North Carolina, plant copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Re- gional Director for Region 11, after being duly signed by Respondent's representative, shall be post- ed by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) 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 here- with. IT IS FURTHER ORDERED that all allegations of the complaint which charge Respondent with unfair la- 2 Chairman Murphy agrees with the conclusion of the Administrative Law Judge that the single isolated violation of Sec. 8(a)(l) of the Act which the General Counsel proved in this case does not warrant the issuance of a remedial order under the facts in this case Cf. American Federation of Musi- cians, Local 76, AFL-CIO (Jimmy Wakely Show), 202 NLRB 620 3In the event that this 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 to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bor practices other than those found herein be, and the same hereby are, dismissed. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercively interrogate our em- ployees concerning their union and/or protected activities or give our employees the impression that such activities are under surveillance. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organiza- tion, to form labor organizations, to bargain col- lectively through representatives of their own choosing, and to engage in other concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection. CAROLINA AMERICAN TEXTILES, INC. DECISION STATEMENT OF THE CASE EUGENE GEORGE GOSLEE, Administrative Law Judge: These consolidated cases came to be heard before me at Greensboro, North Carolina, on July 24, 1974, upon com- plaints I issued by the General Counsel of the National Labor Relations Board and answers filed by Carolina American Textiles, Inc., hereinafter sometimes called the Respondent. The issues raised by the pleadings in these consolidated proceedings relate to whether or not the Re- spondent violated Section 8(a)(1), (3), and (5) of the Na- tional Labor Relations Act, as amended, by acts and con- duct hereinafter specified. A brief has been received from the General Counsel and a memorandum of points Lnd authorities has been received from the Respondent. Upon the entire record in these proceedings, and from my observation of the testimony and demeanor of the wit- nesses, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The consolidated complaints allege, the answer admits, and I find that the Respondent, a North Carolina corpora- 1 The complaint in Case I I-CA-5485 was issued on March 7, 1974. upon a charge filed on September 21, 1973, as amended on September 26, 1973, and copses of the charge and amended charge were served on the Respon- dent on the same dates . The charges in Cases I I-CA-5666 and I I-CA-5707 were filed on March 6 and April 11 , 1974, respectively, served on the Re- spondent on the same dates , and on June 28, 1974, the Regional Director issued and caused to be served on the parties an order consolidating cases, amended complaint, and notice of hearing tion, is engaged in the manufacture of textured yarn at its Greensboro, North Carolina, plant and in the 12-month period preceding June 28, 1974, the Respondent sold and received goods and materials to and from places situated outside the State of North Carolina, in amounts valued, respectively, in excess of $50,000. As the parties concede, I find that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The consolidated complaint also alleges, the answer ad- mits, and I find that the Textile Workers Union of Ameri- ca, AFL-CIO, CLC, hereinafter called the Union, is a la- bor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES ALLEGED The consolidated complaints allege that the Respondent violated Section 8(a)(1) of the Act by creating the impres- sion of surveillance and by two separate instances of inter- rogation. The General Counsel also alleges that the Re- spondent violated Section 8(a)(3) of the Act by reprimanding an employee because of her union and con- certed activities. In addition, the General Counsel alleges that the Respondent refused to bargain in good faith with the Union by (1) unilaterally implementing work atten- dance policies; (2) discharging employees pursuant to the unilaterally established attendance policies; (3) withdraw- ing recognition and refusing to meet and bargain with the Union; and (4) unilaterally and without consultation with the Union changing wages, hours, and other conditions of employment of its employees in the bargaining unit. The Respondent filed answers to both the initial and amended complaints, and denies that it has engaged in any unfair labor practices. A. Background On October 11, 1972, the Union was certified by the Board as the sole and exclusive bargaining representative of the Respondent's employees in the following described unit: All employees employed by the Respondent at its Greensboro, North Carolina, plant, including all pro- duction and maintenance employees of the American Textured Yarn, Inc., Carolina American Dying and Carolina American Knitting Divisions, excluding all employees of the Employer's Patrician Fabrics Divi- sion, office clerical employees, professional employ- ees, guards, salaried employees and supervisors as de- fined in the Act. Sometime after the certification, as the General Counsel concedes, the several divisions of the Respondent named in the certification ceased to exist, so that the bargaining unit came to consist of all employees of Carolina American Textiles, Inc., with the exclusions named in the certifica- tion. I find, accordingly, that the unit described above, lim- CAROLINA AMERICAN TEXTILES, INC. 459 ited to Carolina American Textiles, Inc., was the unit ap- propriate for the purposes of collective bargaining at all times relevant to these cases. The Union and the Respondent met for their first bar- gaining session on December 1, 1972, and this was fol- lowed by 16 subsequent sessions, the last of which was held on January 14, 1974. No final written bargaining agree- ment was arrived at as a result of the negotiations, but on September 10, 1973, the Union and the Respondent did agree to a wage proposal and certain other terms and con- ditions of employment, and after approval of the proposals by the employees, the Union consented to permit the Re- spondent to put them into effect. About March 1, 1974, the Respondent received a peti- tion signed by approximately 67 percent of the 452 em- ployees then in the bargaining unit, advising Carolina American Textiles that the employees no longer wished to be represented by the Union. On March 4, 1974, after veri- fying the signatures on the petition , the Respondent's presi- dent, J. Pleas McMichael, informed the Union of the Company's belief of the Union's loss of majority status, and withdrew recognition. The Union replied on March 5, insisting on its continued majority status , and in a second letter on March 20, 1974, the Union protested the Respondent's implementation of improvements in wages and other terms and conditions of employment . Neither the employees, nor either party, filed a representation peti- tion to determine the question of majority status, but on March 6 and 11, 1974, the Union filed additional charges alleging violations of Section 8(a)(3) and (5) of the Act. B. The Alleged Unilateral Changes in the Respondent's Work Attendance Policies There is no allegation in these proceedings that the Re- spondent or its agents, planned, fomented, encouraged, or otherwise participated in the petition by which the employ- ees announced their desire to withdraw from the Union. The General Counsel contends, however, that the Respondent's unilateral changes in its work attendance policies, which were implemented in March and September 1973, coupled with the discharge of employees pursuant to the new policies and three incidents of 8(a)(1) conduct caused the Union's loss of majority . Accordingly, the Gen- eral Counsel further contends that both the Respondent's withdrawal of recognition, and its subsequent conduct in changing wages and working conditions are also violative of Section 8(a)(5) of the Act. For reasons related below, I find that the General Counsel has not sustained the burden of proof that the Respondent unilaterally promulgated and implemented changes in its work attendance policy, and I further find that neither the Respondent's withdrawal of recognition, nor its subsequent changes in terms and con- ditions of employment are tainted by unlawful conduct. The General Counsel presented two principal witnesses in support of the refusals to bargain alleged in the consoli- dated complaints. Virginia Keyser, an international repre- sentative of the Union, participated in 15 of 17 bargaining sessions with the Respondent , and she also had the respon- sibility for processing grievances filed by employees in the bargaining unit. Julius Fry, also an international represen- tative, participated in all but one of the bargaining sessions with the Respondent. According to Fry's testimony, he delegated to Keyser the responsibility for handling griev- ances, but Keyser had no authority insofar as the negotia- tions were concerned, and she lacked authority to bind the Union on any proposal offered by the Respondent. Keyser testified that on June 15, 1973, after the dis- charge of Robin Britt, she wrote a letter to the Respondent's vice president, Arthur Moffitt, protesting the discharge as discriminatory, and requesting a description of the Company's attendance policy pursuant to which Britt was terminated. Moffitt replied to the letter on June 30, by informing Keyser that Britt had been discharged because she was tardy reporting to work for a total of five times in 8 weeks. Moffitt also informed Keyser that the Company's policy was to discharge any employee who was tardy four times in a period of 8 weeks. Keyser also testified that on July 24, 1973, she attended a grievance meeting concerning the discharge of Britt and three other employees who had been terminated for tardi- ness or absenteeism under the Respondent 's attendance policy. According to Keyser, Moffitt explained the atten- dance policy, and at Keyser's request provided a copy of the policy dated March 28, 1973, effective April 1, 1973. As Keyser testified, she had never previously seen a copy of the attendance policy, and she had never agreed to the policy. Keyser recalled that she saw some signatures on the copy shown by Moffitt, and she also testified that on Au- gust 2, 1973, the Respondent sent her a copy of the policy, but this copy differed in some respects from the copy pro- duced by Moffitt at the July 24 grievance meeting. Keyser also attended a negotiations session with the Re- spondent on September 10, 1973, but her testimony con- tains no mention of any discussion of a proposal made by the Respondent to further modify its attendance policy. Keyser testified that after the conclusion of the meeting she was called into the office and the Respondent's attorney, Thomas Bradley, handed her a copy of a policy, which Keyser recalled contained some additional provisions with respect to critical illness and family deaths. Keyser admitted in her direct testimony that she also attended an earlier grievance meeting on March 29, 1973, at which the Respondent's attendance policy was dis- cussed. Keyser's testimony reflects that she was told by Moffitt that the Company had an attendance policy which had not been used, and that the Company intended to modify the old policy by doing away with the necessity for doctor's excuses, canceling all prior warnings except those pertaining to quality, and providing for discharge in the event of three unexcused absences in 12 months . Moffitt did not show Keyser a copy of the policy, and did not comply with her request for a copy. The sum of Keyser's testimony on examination is that neither she nor the Union had any knowledge of the Respondent's policy requiring discharge in the event of ab- sence or tardiness to the extent of four incidents within an 8-week period, until after the discharge of Robin Britt. Keyser was unable to recall many of the pertinent details of the meetings with the Respondent on March 29 , July 24, and September 10, 1973 , but she was adamant in her insis- tence that the Union was never given any notice or oppor- 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tunity to bargain with respect to the Respondent's revised attendance policy, and that the Union became aware of the revisions only after they had been implemented and en- forced by the Company. As corroboration for Keyser's testimony, the General Counsel called employees Robin Britt, Jo Ann Ryals, and Gwendolyn McDougal. Ryals, who was discharged under the attendance policy on July 9, 1973, attended the griev- ance meeting on July 24, 1973, and admitted in her testi- mony that a copy of the Respondent's attendance policy was passed around to the Union 's participants. Ryals also testified that she had seen and signed the policy in late May or early June 1973, but denied that the attendance policy was posted in the plant. Robin Britt was discharged on June 11, 1973, for the same reason as Ryals. Britt attended the March 29 griev- ance meeting, and she recalled that either Moffitt, or Com- pany President McMichael, explained an attendance poli- cy which allowed three unexcused absences in a 12-month period. Britt admitted that she was aware of an attendance policy requiring discharge for tardiness to the extent of four incidents in an 8-week period, but she was not ques- tioned as to when, where, or how she became aware of the policy. Britt also attended the July 24 grievance meeting, and recalled the the Company's attendance policy was ex- plained, but was unable to recall whether Keyser received a copy of the policy as she requested. McDougal also testified to attending a meeting in March 1973, which in this testimony was characterized as a nego- tiations meeting, but she was unable to recall any discus- sion at that meeting concerning the Company's attendance policy. McDougal admitted awareness of a company atten- dance policy and testified that she was informed of the policy in February 1973. Julius Fry's testimony in these proceedings was limited largely to the negotiations meeting held on September 10, 1973, and its aftermath. Fry admitted that the Company made some proposals at this meeting concerning wages and other terms of employment, but that there was no pro- posal and no discussion concerning an attendance policy. Fry also denied that he was aware that Keyser was given a copy of a proposed attendance policy at the conclusion of the meeting, and also denied that he was ever made aware of a prior attendance policy which the Respondent imple- mented on April 1, 1973. Fry did concede that the Compa- ny made some written proposals on September 10, and that after approval by the employees he authorized the Respon- dent to put the proposals into effect. According to Fry, however, the package agreed to never include any provi- sion on work attendance, and the issue of an attendance policy was never proposed by the Respondent, and was never the subject of negotiations. Fry also testified about Keyser's supposed lack of au- thority to negotiate on behalf of the Union. Notwithstand- ing her status as an international representative and her participation in 15 of 17 bargaining sessions, Fry testified that Keyser had no authority to negotiate with the Respon- dent, no authority to accept any proposal from the Re- spondent, and simply served as Fry's assistant in negotia- tions. Fry agreed that he never specifically informed the Respondent of Keyser's lack of authority, but insisted that the Company was on notice because he informed Bradley at the outset of negotiations, that he was in charge of nego- tiating an agreement. Fry did admit that he vested Keyser with authority to handle grievances with the Respondent. Except where their testimony is corroborated by other witnesses or documentary evidence, I reject the testimony of Keyser and Fry as it pertains to the alleged refusal to bargain by the Respondent. Fry's testimony was equivocal, contradictory, and contrary to the testimony of one of the members of his own bargaining committee. Keyser's testi- mony was worse, and compared with evidence in the whole of the record I can only conclude that Keyser either suf- fered from an almost total inability to recall pertinent events, or she was purposefully withholding the truth. Keyser's testimony was replete with instances of supposed inability to recall even the most important segments of her meetings with the Respondent's representatives. Keyser ad- mittedly had notes from her meetings with the Respondent, and her failure to avail herself of this documentation of past recollection recorded is a further reflection on the cre- dence to be accorded to her testimony. I similarly reject the testimony of Ryals, Britt, and Mc- Dougal as their testimony pertains to the alleged unilateral changes in the Respondent's attendance policy. None of the three witnesses was able to recall with any degree of specificity the contents of the March 29 and July 24 meet- ings, but to the extent they did testify, the testimony is inconclusive and contradictory. Ryals' testimony that she saw and signed the revised attendance policy in May or June 1973 is contrary to the documentary evidence and the testimony of other credited witnesses in these proceedings, and McDougal's testimony that she saw the policy in Feb- ruary 1973 is susceptible on the same reasoning. In the case of Britt, the General Counsel established that Britt was aware of the revised attendance policy, but he studiously avoided questioning the witness as to when or under what circumstances the modified policy came to her attention. The credence to be accorded the testimony of Britt and McDougal is suspect from still another vantage point. Both employees were members of the Union 's negotiating com- mittee and presumably participated in the September 10, 1973, negotiating session with the Respondent. The Gener- al Counsel abstained from questioning either employee about her attendance at the September 10 meeting, and, if she attended, substantiating her recollection of what tran- spired. The General Counsel also called employee Barbara Shelf as a witness , and, although Shelf was a member of the Union's negotiating committee , the General Counsel made no attempt to establish whether or not Shelf attended the September 10 negotiations session , and, if so, what she re- called of the pertinent events which transpired at that meeting. Insofar as the refusal-to-bargain allegations are con- cerned, particularly the alleged unilateral changes made by the Respondent in its work attendance policy, I credit the testimony of employee Sue Haislip, as it corroborates the testimony of the Respondent's officials who participated in the several crucial meetings with the Union. Haislip was one of the members of the Union's negotiating committee, CAROLINA AMERICAN TEXTILES, INC. and she participated in both negotiations sessions and grievance meetings during the period from December 1972 through mid-September 1973. Haislip was present at the grievance meeting on March 29, 1973 , which was attended by Keyser and by Moffitt and other company representatives. There was a discussion at this grievance meeting about the Respondent 's atten- dance policy, and Moffitt explained that the Company wanted to revise its existing policy to make it more lenient by providing for termination when an employee was tardy or absent four times in an 8-week period . Moffitt also ex- plained that the Respondent wanted to destroy all repri- mands except those pertaining to quality, and to remove the necessity for a doctor's certificate except in cases of extended absence for illness . Moffitt expressed the Company's desire to put the revised policy into effect on April 1 , 1973, and Keyser replied to the proposal, "That's good, it's the best thing you have ever done ." Keyser made no request for additional information or discussion on the proposal, but after the meeting she told Haislip that she thought the revised policy was the best thing the Company had ever done, as it would benefit employees who were absent for illness or other reasons. Haislip also testified, and her testimony is corroborated by other witnesses , that following the March 29 meeting the Respondent's supervisors called meetings of the em- ployees to explain the policy, the employees signed the pol- icy to acknowledge their understanding, and the policy was thereafter posted on the Company 's bulletin boards. In re- sponse to the Union's request to notify the Union of all notices posted by the Respondent, Haislip reported the posting to Keyser. In her capacity as a committeewoman , Haislip also at- tended the grievance meeting on July 24, 1973, which con- cerned the discharge of Britt and other employees who were terminated for tardiness or absenteeism . Although the union representatives agreed that the attendance policy had previously been explained , a further explanation was requested . McMichael, the Company's president, diagram- med the policy on the blackboard, explained how the poli- cy worked, and also explained how employees could work off past infractions. Haislip was also present at the September 10, 1973, bar- gaining session, and testified to the Respondent's proposals on wages and other terms of employment, including revi- sions to the Company's attendance policy. On the latter proposal the Respondent explained that the Company wanted to further modify the attendance policy to make minor revisions in language. Written copies of the pro- posed revisions were distributed to the Union's representa- tives at the September 10 meeting, along with copies of the Company's proposals on a wage package and other issues. According to Haislip , the Company's proposals of Septem- ber 10 were discussed with the employees in the bargaining unit and became effeective 2 weeks later. Moffit's testimony concerning the March 29 grievance meeting with the Union conforms in all pertinent respects to the version recounted by Haislip. Similarly , Moffitt's testimony, as well as McMichael's, conforms to Haislip's recount of what transpired at the July 24 grievance meet- ing, including McMichael's explanation of how the atten- 461 dance policy worked, with the use of a blackboard dia- gram. Both Moffitt and McMichael testified concerning the September 10 negotiating session, and their testimony was mutually corroborative, as well as it was corroborative of Haislip's testimony. I find that the Respondent made a written wage proposal, and other written proposals, includ- ing a modification to the attendance policy which had be- come effective April 1 , 1973. The Respondent's representa- tives explained that the modifications included (1) permission for four rather than three absences in a 12- month period, exculpatory language to cover extreme ill- nesses and family deaths, and a revision of the discharge provision from the mandatory "will" to the permissive "may." The Union, through Fry, objected to one of the Company's proposals concerning a contingency for double time for Sunday work, and the Respondent withdrew that proposal. At the conclusion of the meeting Fry agreed that he would submit the proposals on wages and other terms to the employees, and would thereafter communicate with the Respondent as to whether the proposed changes could be implemented by the Company pending agreement on a complete contract . Although the record reflects some con- flict as to whether Fry contacted McMichael or Attorney Bradley, I find on the basis of Fry's testimony that he did submit the Respondent's proposals to the employees for approval, and on September 17, 1973, advised the Respon- dent of the Union's approval and gave the Union's permis- sion to put these agreements into effect. Contrary to Fry's testimony, I further find that the agreement included the Respondent's proposal on modifications to its work atten- dance policy. In summary, I find and conclude upon the whole of the credited evidence in this record , that in response to the Union's inquiries, the Respondent proposed modifications on March 29, 1973, to its existing attendance policy, and with the Union's agreement the new policy became effec- tive April 1, 1973. On this finding I reject the General Counsel's contention that Keyser lacked authority to ap- prove the Respondent's March 29 proposal on its atten- dance policy. Keyser was vested with authority to process employee grievances, and the grievance session of March 29 provided the framework for the Respondent 's proposal and the Union's acceptance of the modified attendance policy. I also find, in the light of the agency provisions of Section 2( 13) of the Act, that Fry's statement to the Re- spondent at the outset of negotiations to the effect that Fry had primary responsibility for bargaining an agreement was not a sufficient notice to the Respondent of Keyser's alleged lack of authority to entertain contract proposals and agree to them on behalf of the Union. The findings of the Union's agreement to the Respondent's proposed modification to its attendance poli- cy of March 29, 1973, are amply supported through the credited testimony of Haislip , Moffitt, and McMichael, as they are supported by other evidence in the record. In the several bargaining sessions between the parties in the peri- od from April 1 to September 10, 1973, no representative from the Union ever raised the issue of the attendance policy or sought to propose or bargain any modification. The Union's silence in this respect is the more persuasive 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because all during this period it had entertained grievances from employees who had been discharged under the terms of the April 1 modifications to the attendance policy. At the September 10 negotiations meeting , no representative of the Union voiced any objection to the Respondent's proposal to further modify the attendance policy, and the Union raised no question concerning the April 1 modifica- tions which were appended to the Respondent's September 10 work attendance proposal. Further, Robin Britt was dis- charged on June 11, 1973, in accordance with the modified work attendance policy of April 1. Although this policy was explained to the Union in Moffitt's letter of June 30, thoroughly reviewed at the July 24 grievance meeting, and included in the discussions at the September 10 bargaining session, it was not until September 17, 1973, that the Union filed a charge alleging that Britt's discharge was a violation of Section 8(a)(3) and (5) because the work attendance pol- icy had been unilaterally established and implemented by the Respondent. Accordingly, I find and conclude that the modifications to the Respondent's attendance policy which became effective April 1 and September 24, 1973, were agreed to by the Union, and were not unilateral changes in violation of Section 8(a)(5) of the Act. Inasmuch as I have found that the changes to the Respondent's work attendance policy were not violative of the Act, I further find and conclude that the discharges which were effectuated in accordance with the policy, and which are not alleged or proved to have been unlawful in any other respect, did not violate any provision of the Act. C. The Alleged 8(a)(1) Conduct Employee Ronda Freeland was discharged by the Re- spondent on January 31, 1974, for violation of the work attendance policy. The issue of Freeland's discharge has been disposed of above, but the General Counsel contends that Freeland was unlawfully interrogated by her supervi- sor, Phil Joyce. Freeland testified that during the week of January 20, 1974, Joyce walked up to her while she was counting ends, and asked what she was doing. Some conversation fol- lowed, with a scatological insertion by Freeland, and the conversationalists agreed that the end count was an unnec- essary function. Joyce then asked, "Between me and you, do you believe in the Union?" Freeland replied that she was 100 percent for the Union, and Joyce suggested that it was breaktime. Joyce testified in these proceedings and categorically denied that he had asked Freeland about her belief in the Union. Barbara Shelf, an employee and member of the Union's negotiating committee, testified that she wore a union but- ton in the plant for some time prior to January 1974. Shelf testified that on a Saturday in January she became ill and asked Supervisor Bill Fowler if she could go home. Accord- ing to Shelf, Fowler pointed to the union button and asked, "What are you doing with that thing on?" Fowler then pointed to several locations and said, "Why don't you put one here, there and all over your clothes, you would look pretty cute with that on." Fowler added that he knew Shelf had obtained the button from Caesar Kemlock, and he then asked Shelf if she was ready to go home. Fowler was not called to testify in these proceedings, and Shelf's testimony is unrefuted, except to the extent that the Respondent proffered testimony that on February 5, 1974, the Union processed a grievance over an alleged sim- ilar harassment of employee Debbie Carter by Supervisor Wayne Joyce-but the Respondent was never informed of the Fowler-Shelf incident and no grievance was filed. The General Counsel alleges that employee Gwendolyn McDougal was reprimanded by the Respondent because of her union and concerted activities. McDougal, a union member and a member of the negotiating committee, testi- fied that on February 11, 1974, she was called into her supervisor's office and told by Production Manager Tom Bokoski that he had several complaints that McDougal was harassing people on company time to join the Union. McDougal denied the allegation and asked who was accus- ing her, but Bokoski refused to name the complaining indi- viduals. Bokoski also told McDougal that he wasn't accus- ing her, but only warning her. Three days later McDougal was called to McMichael's office and in the presence of Bokoski and Moffitt, Mc- Michael told McDougal that he would not have required Bokoski to warn her unless he had signed affidavits that she had been harassing people about the Union on compa- ny time. McDougal again denied the accusation. On cross-examination McDougal admitted that she was aware of the company policy against soliciting on company time. McDougal also admitted that she was not given a written reprimand, but only warned to stop violating the company rule and return to work. The record reflects that McDougal was later promoted and given a pay increase. It appears from the record that McDougal complained to the Union about Bokoski's warning, and this complaint was transmitted by Keyser to the Respondent, and in turn triggered McMichael's meeting with McDougal on Febru- ary 14. McMichael admitted that he did meet with Mc- Dougal on that date, told her that he had reports that she had been soliciting on company time, that this conduct could jeopardize her job, and asked her please not to con- tinue the practice. After the meeting McMichael sent a let- ter to Keyser, assuring that there had been no harassment of McDougal, and also assuring Keyser that McDougal had been called in and given an explanation. The record is clear that there was no further mention of the matter, and no warning, reprimand, or other record was placed in Mc- Dougal's personnel file. I cannot find on this evidence that McDougal was reprimanded by the Respondent for her union or concerted activities. On the basis of a written complaint from an employee, the Respondent simply called McDougal in, informed her of the report and the Company's policy against soliciting during worktime, and politely asked her to desist from this conduct if, in fact, she was engaging in the practice. Both McDougal and the Union were provided with complete information concern- ing the reasons for warnings by Bokoski and McMichael, and neither the Union nor McDougal raised the matter again until April 11, 1974, when the charge in Case 1I- CA-5707 was filed, alleging that McDougal had been dis- criminated against in violation of Section 8(a)(3) of the Act. CAROLINA AMERICAN TEXTILES, INC. 463 The General Counsel does not attack the Respondent's no-solicitation policy, which I find is valid on its face,' but contends that the Respondent has not proved that Mc- Dougal's alleged solicitation actually interfered with an- other emplo ee's work. The General Counsel's reliance on Daylin, Inc. ^ in support of this proposition is clearly mis- placed. The no-solicitation rule in Daylin was invalid on its face, and even its lawful portions had been enforced by the employer only to the extent of prohibiting solicitation for reasons related to union activities. The General Counsel's argument also misses the point in another respect. The is- sue here is not whether McDougal actually violated the no-solicitation rule, but whether the Respondent acted on a good-faith belief that she may have, and asked her to desist if she was engaging in the practice. These are the facts as I find them, and I will recommend dismissal of the 8(a)(3) allegation concerning McDougal. I will also recommend dismissal of the allegation that employee Ronda Freeland was unlawfully interrogated about her union activities, interests, and sympathies. Free- land was not a convincing witness; I cannot credit her tes- timony that in the context of a conversation when she and her supervisor were lambasting the Company's rule requir- ing end counts, Joyce suddenly switched the conversation to an inquiry of Freeland's union sympathies. As to the allegation that employee Barbara Shelf was interrogated and left with the impression of surveillance, the Respondent did not call Supervisor Fowler to deny or explain Shelf's testimony of the January 1974 conversation. I find, accordingly, that Fowler did ask Shelf why she was wearing a union button, and indicated his awareness that Caesar Kemlock gave her the button. While the conversa- tion was attended with a certain amount of levity, I never- theless find that Fowler's remarks could have coerced and restrained Shelf, and the conduct violated Section 8(a)(1) of the Act. D. The Withdrawal of Recognition and Subsequent Events The General Counsel has alleged that the Union's loss of majority, which occurred in March 1974, is attributable to the Respondent's unfair labor practices, particularly the unilateral changes it instituted and implemented with re- spect to the work attendance policy. Accordingly, the Gen- eral Counsel further contends that the Respondent's with- drawal of recognition on March 4, 1974, and the changes the Respondent instituted on March 8, 1974, with respect to wages and other terms and conditions of employment, violated Section 8(a)(5) of the Act. I have found above that the General Counsel has failed to sustain the burden of proof that the Respondent, either on March 29, 1973, or on September 24, 1973, unilaterally altered or implemented changes in its work attendance pol- icy. On the contrary, I have found that the changes made 2 In a prior unfair labor practice case sub nomme Textured Yarn Division of American Textiles, JD-857-72, January 15, 1973, Administrative Law Judge Thomas Wilson found that the Respondent had instituted its no- solicitation rule to abate union activities . No exceptions were filed to the finding, and after the compliance period and the Union's certification, the Respondent reposted the rule. 198 NLRB 281 (1972). on both dates were negotiated with the Union, and imple- mented by the Respondent thereafter with full knowledge and approval of the Union. Similarly, I have found that the General Counsel has not proved that Gwendolyn McDou- gal was discriminated against in violation of Section 8(a)(3), and he has also failed to prove that employee Ron- da Freeland was unlawfully interrogated in violation of Section 8(a)(1) of the Act. Accordingly, the single violation found herein is based on the conduct of Supervisor Fowler's comments to employee Shelf concerning a union button, and the impression he left with her of his awareness of the source from which she had obtained the button. It is the law that after expiration of the first year of certification a certified union enjoys a rebuttable presump- tion that its majority status continues. An employer may lawfully refuse to continue to bargain with the union where it affirmatively establishes that the union no longer com- manded a majority, or where the withdrawal of recognition is predicated on a reasonably based doubt of the absence of a continuing majority.4 An employer's defense based on either actual loss or a reasonably based doubt of continu- ing majority fails, however, when the loss of majority is proved to have been caused by the employer's unfair labor practices. There is only one unfair labor practice proved in this case, an 8(a)(1) violation involving one minor supervisor and one employee, and no evidence that the incident was ever brought to the attention of any other employee prior to the hearing in these proceedings. To the contrary, the record here reveals a very reasonable and harmonious bar- gaining relationship between the Respondent and the Union, with numerous bargaining sessions and agreement on a number of critical issues. In March 1974, the Respon- dent was served with a petition signed by more than 60 percent of the employees in the unit asking for withdrawal of recognition, and I find that this constitutes adequate evidence to support the Respondent's contention of a good-faith belief, and rebuts the presumption of the Union's continuing majority. Inasmuch as the Respondent's withdrawal of recognition was lawful, the subsequent changes in wages and other terms and condi- tions of employment cannot be found to violate the Act. Accordingly, I will recommend dismissal of these allega- tions of the complaint. I have found that in a single instance the Respondent violated Section 8(a)(1) of the Act by a supervisor's con- duct in asking an employee why she wore a union button and informing her of the source from which she obtained the button. I am further inclined to find, however, that this single isolated violation of the Act does not warrant a remedial order. Contrasted against a record of a harmoni- ous relationship between the Respondent and the Union, unblemished by any acrimony, let alone other labor prac- tices, a single isolated incident involving one employee and the misconduct of a minor supervisor does not convince me that the interests of any party or the public can be served by an order and a cease-and-desist notice. On this basis, I will recommend that the complaint be dismissed in its entirety. 4 Orion Corporation, 210 NLRB 633 (1974); J H. Rutter-Rex Manufactur- ing Company, 209 NLRB 6 (1974). 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing findings of fact and conclusions, and upon the entire record in this case , I hereby make the following: CONCLUSIONS OF LAW 1. The Respondent, Carolina American Textiles, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, Textile Workers Union of America, AFL-CIO, CLC, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Except in one instance, the General Counsel has not proved by a preponderance of the evidence that the Re- spondent has violated the National Labor Relations Act, as amended . As to the one instance of a violation , which I have found above to be de minimis, I conclude that a remedial order is not warranted. [Recommended Order for dismissal omitted from publi- cation.]