Rockland-Bamberg print Works, Inc.

ROCKLAND-BAMBERG PRINT WORKS, INC. Rockland-Bamberg Print Works, Inc. and Machine Printers and Engravers Association of the United States. Cases 11 CA-6461 and 11-CA-6568 August 11, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER On March 31, 1977, Administrative Law Judge Morton D. Friedman issued the attached Decision in this proceeding. Thereafter, 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 to the extent consistent herewith. We do not agree with the Administrative Law Judge that Respondent violated Section 8(a)(3) of the Act by discharging Paul Mitchem. Although Paul Mitchem was hired by Respondent in March 1974 as a printer, he had no previous experience as such, was paid less, and was considered an apprentice. He was laid off in December 1974. When he was recalled in August 1975, he was reimbursed for the expense of moving back to Bamberg. In early December 1975, Mitchem request- ed a raise, but Respondent denied the request without explanation. A campaign to organize Respondent's printers began in late spring 1975. The petition was filed on October 24, 1975, and an election was held on December 18, 1975, which the Union won, four votes to one. Two days following the election, printer James Harter, who had served as Respondent's observer, was promoted to supervisor.' In early January 1976, Mitchem revealed to Harter that he had voted for the Union. On March 9, 1976, Mitchem was issued two written reprimands. The first reprimand, for low production, had originally been prepared and signed by Willard Wood, superin- tendent of printing, but was retained by Wood until March 9, when it was given to Harter to sign and issue to Mitchem. Mitchem refused to sign this reprimand, insisting that he was printing cloth as fast as his machine would allow. The second reprimand concerning 4,000 yards of "out of fit" cloth which Mitchem had printed, was also prepared without For these reasons, the Administrative Law Judge concluded that an intelligent guess could be made as to which of the five printers voted against the Union. 231 NLRB No. 51 consultation with Harter, Mitchem's immediate supervisor. Mitchem signed this reprimand. On May 11, 1976, a continuing streak in a pattern that Mitchem was printing caused Mitchem to stop his machine four separate times and show the streaking to Harter. The first three times Harter examined the streak, he concluded it was caused by "missing backfill," an absence of a starchy substance applied to the cloth to aid the printing process. Since "missing backfill" is a defect in the cloth, rather than a printing error, Harter instructed Mitchem to resume printing. After resuming printing, Mitchem ran about 8,000 yards of cloth and, upon noticing that the streak had worsened, stopped the machine and sent for Harter. This time, Harter concluded that the streak was caused by vibration of the "doctor blade," a part of the machine which cleans the printing roller so that ink may be applied evenly. On Harter's instructions, Mitchem adjusted the doctor blade and the balance of the cloth was properly printed. On May 17, 1976, Respondent discharged Mitchem, giving as the reason the 8,000 yards of streaked cloth which Mitchem had printed. The streaking rendered the yardage substandard and caused Respondent substantial financial loss. The Administrative Law Judge concluded that Respondent discharged Mitchem for his union activity. He so found, despite the facts that Mit- chem's only union activity was voting for the union 5 months prior to his discharge and Mitchem had ruined a total of 12,000 yards of cloth. We disagree. The Administrative Law Judge found animus from Respondent's preelection 8(a)(1) conduct. However, the bare fact that Respondent, prior to the election, engaged in coercive conduct against employee Roy Hannon, an active union supporter, does not, without more, establish that Mitchem's discharge 5 months later violated Section 8(a)(3). Because Respondent recalled Mitchem and reim- bursed him for his moving expenses, did not give a reason for denying his request for a raise, and presented no evidence to show that Mitchem's work was unsatisfactory prior to the election, the Adminis- trative Law Judge concluded that Respondent considered Mitchem a satisfactory employee up until the election. We agree. We fail to see, however, how Mitchem's satisfactory performance before the elec- tion can give rise to an inference that his discharge for unsatisfactory performance 5 months after the election was motivated by his limited union activity. Certainly there is no evidence that Respondent tolerated, before the election or at any other time, printing errors similar to that for which Mitchem was discharged. DECISIONS OF NATIONAL LABOR RELATIONS BOARD From the fact that Mitchem revealed his union vote to Harter in early January 1976, the Administra- tive Law Judge found both Respondent's knowledge of Mitchem's union activity and the beginning of Mitchem's problems. But as indicated earlier, it appears, as the Administrative Law Judge in fact concluded, Respondent knew how Mitchem voted from the day of the election. The Union won the election by a vote of four to one and Harter, Respondent's election observer, was promoted 4 days thereafter. Mitchem in fact testified that Harter responded to his admission by stating he knew how he had voted. The Administrative Law Judge further inferred discrimination from the manner in which Mitchem's two reprimands were prepared. He found the timing of the reprimand for low production peculiar in that it had been prepared by Wood almost a month earlier. He also found it significant that Harter, Mitchem's immediate supervisor, was not consulted concerning either reprimand. But there is no evi- dence that this procedure was unusual. In fact, the Administrative Law Judge accepted Respondent's assertions that it had previously discharged employ- ees without prior warnings and for lesser offenses than Mitchem was accused of. In brief, there is no evidence of what Respondent's procedures or criteria were for issuing reprimands. Absent such evidence that Respondent had procedures from which it deviated, we are reluctant to infer a discriminatory motive from the manner in which the reprimands were issued. Finally, the Administrative Law Judge found the circumstances surrounding Mitchem's discharge pretextual since he found that Mitchem continued to print the streaked cloth only after Harter, on three occasions, instructed him to do so. He found that Harter, like Mitchem, was incapable of distinguish- ing streaks due to "missing backfill" from streaks caused by the "doctor blade," and concluded that Harter, in ordering Mitchem to resume printing, either failed in his duty as a supervisor or sought to create a reason for discharging Mitchem. Yet, Mitchem's inability to determine the cause of the cloth's streaking made him at least as responsible for printing it. And it is therefore just as plausible that Respondent, faced with 8,000 yards of badly marred cloth, for which Mitchem and Harter were jointly responsible, chose to discharge the inexperienced printer, who had ruined 4,000 yards of cloth 2 months earlier, rather than the supervisor. The only evidence which supports the finding that Mitchem's discharge violated Section 8(aX3) is that Respondent demonstrated union animus prior to the election and its knowledge of Mitchem's vote. However, any inference of discrimination which rises therefrom is certainly rebutted by the fact that Mitchem, who was not an active supporter of the Union, was discharged 5 months after the election, when he spoiled a large quantity of cloth. Nor, as is frequently the case where pretext is involved, did Respondent give shifting or contradictory reasons for the discharge. In short, the discharge is too remote in time from the campaign and the election and Mitchem's dereliction of duty too serious for us to conclude that Mitchem was discharged in violation of Section 8(a)(3). Accordingly, we shall dismiss this allegation of the complaint. AMENDED CONCLUSION OF LAW Substitute the following for the Administrative Law Judge's Conclusion of Law 4: "4. Respondent did not violate Section 8(a)(3) of the Act in discharging Paul Mitchem." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Rockland-Bamberg Print Works, Inc., Bamberg, South Carolina, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Coercively threatening any employee with eviction from company-owned housing because of any employee's support of Machine Printers and Engravers Association of the United States, hereinaf- ter the Union, or any other labor organization. (b) Coercing employees by interrogating them with regard to their union desires and beliefs by stating the Respondent would be aware of who was supporting the Union, and by threatening any employee with reprisals unless the employee casts an unmarked ballot in an election, and by informing any employee that such employee will not be sorry if the employee stops assisting the Union, and by soliciting any employee to abandon support of the Union. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights to form, join, or assist or be recognized by Machine Printers and Engravers Association of the United States, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activity for the purposes of collective bargaining or other aid or protection, or to refrain from any or all such activity. 2. Take the following affirmative action necessary to effectuate the policies of the Act: 306 ROCKLAND-BAMBERG PRINT WORKS, INC. (a) Post at its plant at Bamberg, South Carolina, copies of the attached notice marked "Appendix." 2 Copies of said notice, on forms provided by the Regional Director for Region 11, after being duly signed by Respondent's 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 Respon- dent 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 Respondent has taken to comply here- with. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges the unlawful removing from Company-owned premises of Roy Hannon, the unlawful discharge of Paul Mitchem, or any other alleged violations of the Act not found by the Administrative Law Judge. 2 In 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten any of our employees that they will be removed from company housing in order to induce said employees to cease supporting Machine Printers and Engravers Association of the United States, or any other labor organization. WE WILL NOT in any manner threaten our employees that in any election conducted by the National Labor Relations Board we will know how such employees have voted. WE WILL NOT coerce our employees by inform- ing them that they will not be sorry if they help stop the above-named Union. WE WILL NOT ask any of our employees to abandon their support of the said Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in the National Labor Relations Act, which are: To engage in self-organization To form, join, or help a union To bargain collectively through a repre- sentative of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any and all these things. ROCKLAND-BAMBERG PRINT WORKS, INC. DECISION STATEMENT OF THE CASE MORTON D. FRIEDMAN, Administrative Law Judge: This case was heard at Orangeburg, South Carolina, on September 2, 3, and 27, 1976, upon a complaint issued by the Regional Director for Region 11 of the Board on June 17, 1976, which complaint was based on a charge filed in Case II-CA-6461 by Machine Printers and Engravers Association of the United States, hereinafter called the Union, on February 25, 1976, and a charge filed in Case I l-CA-6586 by the Union on May 24, 1976. The complaint, in substance, alleges unlawful threats, interroga- tions, and promises of benefit in violation of Section 8(aX1) of the Act; 1 the discriminatory removal from company- owned housing of one employee and the discriminatory discharge of another employee in violation of Section 8(aX3) and (1) of the Act. In its duly filed answer, the Respondent, while admitting certain allegations of the complaint, denies the commission of any unfair labor practices. At the hearing herein, the parties were afforded full opportunity to be heard, to present evidence, and to make oral argument. Oral argument was waived. Counsel for the General Counsel and the Respondent have filed briefs. Upon my observation of the witnesses, and upon due consideration given to the contentions and arguments contained in the briefs filed by the parties, and upon the entire record in this case, I make the following: I. THE BUSINESS OF THE RESPONDENT The Respondent, named in the complaint as Rockland- Bamberg Industries, but corrected at the hearing to Rockland-Bamberg Print Works, Inc., hereinafter called the Respondent or the Company, is a South Carolina corporation with its plant located at Bamberg, South Carolina, where it is engaged in the finishing and printing of textile materials. During the 12-month period immedi- ately preceding the issuance of the consolidated complaint herein, a representative period, the Respondent purchased goods and raw materials for its plant in Bamberg, South Carolina, from points directly outside the State of South Carolina of a value in excess of $50,000. During the same period, the Respondent shipped from the said plant I An additional allegation of unlawful interrogation was permitted by amendment to the complaint at the heanng herein. 307 DECISIONS OF NATIONAL LABOR RELATIONS BOARD directly to points outside the State of South Carolina products of a value in excess of $50,000. It is admitted, and I find, that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II1. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Interference, Restraint, and Coercion 1. Introduction At the outset, it should be noted that, basically, the resolution of the issues presented by the pleadings and contentions of the parties herein depends on the disposi- tion of the credibility issues presented by the testimony of the witnesses for General Counsel and the Respondent and certain documentary and other evidence. The Union began to organize the Respondent's textile printers in approximately May or June 1975 after a visit to W. James Reese, vice president of the Union, by employee Roy Hannon, a textile printer and two other printers who asked Reese about the possibilities of their being represent- ed by the Union. As a result of this meeting, an organization campaign ensued, and the Union filed a petition for representation on October 24, 1975, as a result of which an election was held on December 18 of that year. The Union won the election by four votes for the Union and one for the Respondent. At that election, which was held on December 18, 1975, Roy Hannon acted as the observer for the Union and James Harter, then a rank-and- file printer, acted as observer on behalf of the Company. It should be noted that there were five printers employed by the Respondent at the time of the election. Several days after the election, on December 22, 1975, Harter was promoted to the position of printer-supervisor. It should also be noted that the Respondent did not hesitate to inform its textile printer employees that it was opposed to their unionization. It was uncontroverted that during December 1975, before the election, meetings were held by Company President Dan Moore with the printers at which Moore pointed out the disadvantages of the Union. He stated that the Company opposed the Union and would do anything legally possible to keep out the Union. In addition to these meetings, a Mr. Leaderman, the Respondent's board chairman, also told the printers that he definitely did not want a union in the plant and he would do everything legally possible to stop the Union. 2 2 None of the foregoing are alleged as violations of the Act and I make no findings with regard thereto. They are cited only for the purpose of establishing company attitude toward unionization. 3 The above from credited portions of the testimonies of Hannon, Clinkscales, and Moore. Although both counsel for General Counsel and counsel for the Respondent argued that the other witnesses should be discredited, there is nothing inconsistent in the testimony of either the Respondent's witnesses or the testimony of Hannon as above cited. However, I do not credit the denials of Moore and Clinkscales of what Hannon had related with regard to his fears and what he testified to with The foregoing represents the atmosphere and the conditions in the plant and the city of Bamberg at the time during which the events alleged as being violative of the Act took place. 2. The unlawful activity Sometime during early to middle December 1975, Roy Hannon requested a meeting with the Respondent's vice president, Marshal M. Clinkscales. The request was granted and as a result a meeting between Hannon, Clinkscales and the Respondent's president, J. Dan Moore, took place in Moore's office. After Clinkscales asked Hannon what was bothering the latter, Hannon told Moore and Clinkscales that he, Hannon, thought that Clinkscales and Moore believed that Hannon was the leader of the union movement in the Respondent's plant. Hannon had requested the meeting at the urging of his wife who had informed him that the company officials could not approach him about the Union, but that Hannon, himself, could make such an approach. Evidently, also, Hannon had heard from others in the town and from his wife, that it was believed that company officials thought Hannon was the leader of the union movement in the plant among the printers. He informed both Moore and Clinkscales of this at the outset of the meeting and informed them that he was not the leader. Nevertheless, despite these denials of union leadership, one of the two, either Moore or Clinkscales, told Hannon that he could either stop the union movement or bring it in, that it was up to him. Hannon then told the officials that he had no ability to stop the union movement by reason of the fact that some of the printers had worked for other companies which were unionized and knew the benefits that unionization would bring. At that point, Clinkscales told Hannon that if the latter did stop the Union from coming into the plant he would not be sorry. Hannon also told the two company officials that he knew of other places where union ringleaders were fired for their adherence to the Union after an election. At this point, Moore who was quite upset by this statement said "It was a damn lie; he did not know what happened elsewhere, but that it was not going to happen here." 3 As noted above, the election took place on December 18, 1975. However, the day before the election, December 17, Roy Hannon's wife, Mary Lou, who worked at the Bamberg city hall, had a conversation with the mayor of Bamberg, Virgil Hicks. Hicks informed Mrs. Hannon that he and company officials were upset over the filed union petition for an election because they were all concerned about the Union possibly coming into a small town like Bamberg. Hicks had evidently also heard talk to the effect that people in the town and the company officials thought regard to the statements made by Moore and Clinkscales. Neither do I credit Hannon with regard to the alleged statement by either Moore or Clinkscales that they did not need a third party and that the printers could sit down with the Respondent's officials and resolve the problems on their own. I do not credit Hannon in this respect because it was only after leading questions and prompting by the General Counsel that Hannon testified to this effect. With regard to the foregoing credibility resolutions, I note the evidentiary rule that it is not uncommon to believe some, and not all, of a witnesses' testimony. N.L R.B. v. Universal Camera Corp., 179 F.2d 749, 754 (C.A. 2). 308 ROCKLAND-BAMBERG PRINT WORKS, INC. that Roy Hannon was the leader in the union movement among the printers in the Respondent's plant. By reason of the foregoing, on December 17, Mrs. Hannon telephoned Clinkscales at the latter's office. She told Clinkscales that she had heard a rumor that her husband, Roy, was the leading man in the union movement and that this was not true; that each man was on his own. During the conversation she told Clinkscales that she did not know how her husband would vote; that her husband had informed the other men that he had nothing to do with the way they voted. During the conversation, also, with regard to the voting, Clinkscales said that it was a very serious matter over which he had lost lots of sleep. 4 Clinkscales also said to Mrs. Hannon, "You are fixed up mighty nice out there and I would hate to see anything happen to it." This, evidently, although somewhat vague, undoubtedly referred to the home that the Hannons were, at that time, renting from the Respondent. As the conversation went on, Mrs. Hannon told Clinkscales, in discussing the ballot that it was a secret ballot and no one would know how each man had voted. This was in support of her protestations that her husband was definitely not a union leader. Clinkscales replied to this statement with regard to the secret ballot, "In a group as small as this, we will know." At that point the conversation ended, quite probably because Clinkscales had another telephone call which he had to answer. However, a short time thereafter, on the same day, Clinkscales telephoned Mrs. Hannon and a second conversation between the two ensued. During that conversation, Clinkscales told Mrs. Hannon that he had been thinking that if Roy Hannon placed an unmarked ballot in the ballot box that he would be voting "No," but that in reality this would be a vote against the Union. In reply, Mrs. Hannon stated that she had not thought of that.5 I find and conclude that in stating to Hannon that the latter would not be sorry if he helped stop the Union and stating to Hannon that Hannon had it within his power to do so, the Respondent by Marshal Clinkscales and J. Dan Moore, threatened Hannon and solicited him to abandon his support of the Union and, thereby, the Respondent violated Section 8(a)(l) of the Act. I further find and conclude that the remark by Clink- scales, during the telephone conversation between Mrs. Hannon and Clinkscales on December 17, to the effect that the Hannons were very comfortable out there, adverting, of course, to the home they rented from the Respondent, and that Clinkscales would be very sorry if anything happened to it, constituted a threat that if Hannon did not abandon his allegiance to the Union his tenure as a tenant of the Respondent might be ended. Although there was no direct 4 It is logical to belive that Clinkscales stated this to Mrs. Hannon in view of the fact that Hicks had told Mrs. Hannon that the company officials were concerned about the unionization of the pnnters. · All of the foregoing from credited portions of the testimony of Mrs. Hannon. I was much impressed by Mrs. Hannon's demeanor on the witness stand as she testified. Furthermore, her answers to questions put to her by the Respondent's counsel on cross-examination did not in any way contradict her testimony on direct and, additionally, she freely admitted that she was told by Major Hicks that company officials had not talked to her husband about the Union and that the Company could not approach her husband about the Union. This, in response to questioning on cross- reference in this remark to the rented premises, under the circumstances herein, as hereinafter related, this remark could not have been directed toward anything but Hannon's tenancy of the Respondent's property. Additionally, I find that the remarks by Clinkscales to the effect that in such a small group of employees (five) the Respondent would know how the employees voted, constituted a threat of possible reprisal against Hannon and other voters. This constituted an additional violation of Section 8(aX I) of the Act. However, I have heretofore found that the alleged interrogation of Hannon by Clinkscales as to why the latter felt employees needed a third party and that the matters could be ironed out between the printers and the Respon- dent, did not occur, at least in the context in which it was related by Hannon in his testimony. Accordingly, I shall recommend dismissal of that portion of the complaint. B. The Alleged Discriminatory Eviction of Roy Hannon Roy Hannon acted as observer for the Union at the election on December 18, 1975. Additionally, the Union, as noted above, won the election in a five-man unit by four to one. At the said election, as noted above, James Harter, although then a rank-and-file employee, acted as observer for the Respondent. Within a few days thereafter, in fact, on December 22, Harter was made a supervisor in the printing department on the second shift. Accordingly, by reason of the fact that Harter, one of the five printers, acted as an observer, an intelligent guess could be made as to which four of the printers voted for the Union and which one voted against it. On December 31, 1975, Respondent's vice president Clinkscales wrote Hannon a letter asking him to vacate the company house in which Hannon and his wife resided. That letter also stated that this was the last of the company-owned houses which had remained unsold, that the Respondent had a buyer and would appreciate it if Hannon would vacate within 30 days. The house which the Hannons at that time were renting from the Respondent at $80 per month was first purchased by the Respondent along with other houses a few years before the events herein when the Respondent sought to induce key personnel to move to Bamberg for the purpose of supervising the operation of the plant. The house had been rented to Hannon when the latter was a supervisor. However, in 1974, Clinkscales, in a visit to Baltimore, where the chairman of the board of directors of the Respondent was located, discussed the disposition of the homes for a number of reasons. The first was that the Respondent's basic business was not real estate and, examination, supports the testimony of Roy Hannon to the effect that he was told by his wife that the company officials could not approach Hannon. but he could approach the company officials. In fact, Mayor Hicks' testimony supports this portion of Mrs. Hannon's cross-examination. Moreover, the mere fact that Mrs. Hannon did not tell her husband about the conversation with Clinkscales until several days after the election does not render her testimony any the less believable. This is so, because Hannon, as noted below and above, acted as observer for the Union at the election which was to take place the day after Mrs. Hannon spoke to Clinkscales on the telephone. It is logical that Mrs. Hannon did not want to upset her husband with regard to this conversation at the time. 309 DECISIONS OF NATIONAL LABOR RELATIONS BOARD additionally, the key personnel that it had desired to move to Bamberg were now in that area and, moreover, most of them seemed to be willing to purchase the houses in which they resided. Additionally, the Company, at that time, and soon thereafter, was in somewhat of a financial bind and the sale of the homes would provide some much needed cash. Accordingly, the sale of the homes was approved by the chairman of the board of directors and Clinkscales began to liquidate the houses, most of which were purchased by the key personnel occupants. The sales began as early as sometime in 1974 and by the time of the events herein, the last remaining company-owned house was the home occupied by Hannon who was no longer a supervi- sor. When the planned liquidation of the residential house properties was initiated, Clinkscales informed Mayor Hicks of Bamberg, who, in addition to being mayor, was in the building and lumber business and, to some extent, evidently, also had connections in real estate sales. Hicks, in 1975, probably in the summer of that year, began to build a dental office in Bamberg for a young dentist who was then in the Army and stationed somewhere outside the State. However, Ernest Jeffords, the dentist's father, resided in Bamberg and was supervising, along with Hicks, the building of the dental office and, in addition, was seeking living quarters for his son, Dr. Jeffords, and the latter's wife when Dr. Jeffords would be released from active Army duty. In discussing the matter, some time before the election among the Respondent's printers, Hicks informed the senior Jeffords that there was a house available, the said house being the home occupied by the Hannons on Lacey Street in Bamberg. Hicks then made contact with Clinkscales and asked the purchase price and was told that the same would be $22,000. This information was relayed by Hicks to the senior Jeffords who then, in turn, notified his son with regard thereto. Thus, the matter was discussed before the date of the election at which Hannon acted as the Union's observer. After the election, on or about December 22, 1975, Dr. Jeffords informed his father that he would purchase the house and the father passed the information on to Mayor Hicks who then told Clinkscales that there was a definite commitment to purchase the premises. It was upon the receipt of this information that Clinkscales sent the letter to Hannon dated December 31, 1975, requesting the Hannons to vacate the premises within 30 days.6 Approximately a week after the sending of the letter, Clinkscales had a conversation with Hannon and asked him what his intentions were with regard to the request for Hannon's moving from the company-owned house. Han- 6 All of the foregoing from uncontroverted testimony of Clinkscales, Moore, Mayor Hicks, and Leonard Jeffords, the father of Dr. Jeffords and the testimony of Dr. Jeffords, himself. All of the foregoing testimony was uncontroverted and I was especially impressed with Dr. Jeffords who had no ax to grind with regard to the entire matter and whose testimony was the most likely to be completely objective for that reason. He was in no way connected with the mill operated by the Respondent and in no way connected with Mayor Hicks, except insofar as the latter was the contractor who built Dr. Jeffords' office. If the testimony were only that of Clinkscales and Moore. I would have doubts as to its validity. However, in view of the testimony of Mayor Hicks, and both of the Jeffords, I find their testimony believable and I credit it. 7 Although Hannon testified to a different version of the conversation non expressed surprise and Clinkscales explained to him that he had not offered the house for sale to Hannon because he was under the impression, from earlier conversations with Hannon, that the latter was having a difficult time making ends meet by reason of the fact that Hannon was purchasing property elsewhere and, also, because Hannon had complained that living expenses in Bamberg had risen so high that it led Clinkscales to presume that Hannon would be unable or unwilling to purchase the premises. 7 In any event, inasmuch as Hannon had difficulty finding another place to reside, the Respondent, which formerly had leased a house from another owner, in turn, requested that Dr. Jeffords move into this rented house on Pine Street in Bamberg until such time as the Hannons could find other, suitable quarters. Dr. Jeffords consented to this arrangement and he and his wife moved into the house on Pine Street. In the meantime, however, Clinkscales had a second conversation with Hannon and suggested that the latter could move into the house on Pine Street which was then occupied by Dr. Jeffords on a temporary basis so that the Jeffords could take possession of the house they were purchasing from the Respondent and which the Hannons were then occupying. Additionally, Clinkscales informed Hannon that the rental on the Pine Street house was $70 a month, $10 less than the rental of the Lacey Street premises, and, also, inasmuch as the Respondent was renting that house from a third owner, the owner might be willing to make the renting arrangements directly with Hannon in the event that Hannon did not want to deal with the Respondent. However, the Hannons refused this offer. Finally, in a somewhat desperate move by the Respondent, after the charge in this instant proceeding was filed, and after Hannon had evidently retained an attorney, the Respondent, through Clinkscales and Moore, asked Jeffords if he would be willing to give up his contract of purchase on the Lacey Street premises occupied by the Hannons so that the premises could be offered to Hannon for sale. Again Dr. Jeffords cooperated and was willing to relinquish his right to purchase the premises on Lacey Street. Thereafter, Clinkscales and Moore presented to Hannon a written option to purchase the Lacey Street premises for the same purchase price as was offered to Dr. Jeffords. This was rejected by Hannon. Eventually, Hannon did find other quarters and he and his wife moved out of the premises but not until after a notice to vacate had been issued by a local court official.8 There is no question but that at least on and after December 18, 1975, the date on which Hannon acted as stating that the complete explanation from Clinkscales was merely a statement to the effect that "a deal was a deal," in this instance I credit Clinkscales over Hannon by reason of the fact that the conversation as related by Clinkscales is more logically related to the events which thereafter occurred. 8 All of the foregoing from credited testimony of Clinkscales. The events related were not refuted in any way by Hannon who sat in the hearing room during the testimony given by Clinkscales with regard to the housing matter. Significantly, counsel for the General Counsel did not put Hannon back on the stand in rebuttal, although Hannon in the first instance had not testified to any of this matter except to the effect that he was told by Clinkscales that "a deal was a deal." Inasmuch as much of what Clinkscales testified to was also to some extent supported by testimony of Dr. Jeffords, whom I have 310 ROCKLAND-BAMBERG PRINT WORKS, INC. observer for the Union at the Board-conducted election among the Respondent's printers, the Respondent had full knowledge that Hannon, if not the leader in the union movement, was a strong supporter of the Union. Addition- ally, as noted above, Harter having acted as the observer for the Respondent at the election, it could easily have been reasoned by the Respondent that Hannon voted for the Union. Accordingly, in view of the admitted antiunion attitude expressed by the Respondent's officials, the suspicion is immediately raised that the sale of the house to Jeffords and the request for Hannon to remove therefrom, and his ultimate removal, were in reprisal for Hannon's union activity and that such reprisal constituted discour- agement of union membership in violation of Section 8(a)(3) of the Act. On the other hand, as I have heretofore stated, the unrefuted credited testimony of Clinkscales and Moore, as supported by Mayor Hicks, Dr. Jeffords, and his father Leonard Jeffords, would indicate that the house which was occupied by the Hannons was, indeed, the last of the series of homes which the Company once purchased and was, for good economic reasons, now liquidating. Indeed, the credited testimony shows that a number of the occupants of these homes had purchased the same over a period of time from 1974, the date on which it was decided to liquidate the property, until December 1975, when the Hannons' house remained the last unsold company housing property. Moreover, there is no doubt that Dr. Jeffords did, indeed, signify his desire to purchase the premises some time on or about December 21, 1975, because the matter had been related to him before that date and on December 21 he had telephoned his father accepting the offer of the Respondent to sell him the house for $22,000. Nor is there any doubt that Dr. Jeffords needed a home in Bamberg or that Mayor Hicks was anxious to obtain the same for him inasmuch as Bamberg, a fairly small community, was in need of a dentist. Additionally, if the Respondent, through Clinkscales and Moore, had decided to visit reprisal upon Hannon for his union activity by requesting his removal from the premises rented to him by the Respondent, it is doubtful that the Respondent would have gone to the extent that it did go to either see to it that the Hannons were housed in the Pine Street property then under lease to the Respondent, and temporarily occupied by Dr. Jeffords and his wife or, to finally request Dr. Jeffords to remove himself from the picture and to forego his right to purchase the Lacey Street premises so that the same could be offered for sale to the Hannons. As stated above, in view of the 8(aX1) violations heretofore found, and the Respondent's expressed animosi- ty toward the unionization of its textile printers, the suspicion becomes rather strong that, perhaps the sale to Dr. Jeffords was a form of reprisal against Hannon. Nevertheless, I find and conclude that the sale to Dr. Jeffords was, indeed, the last of a series of sales by the Respondent and even assuming Clinkscales could have offered Hannon the first rights to purchase the premises, his explanation of his reasons for not offering the premises heretofore found to have given his testimony in a most objective and believable manner, I credit Clinkscales under all of the foregoing circumstances. for sale to the Hannons, in the first instance, remains unrefuted, and in view of all of the facts, I find the reasons to be valid. Accordingly, I conclude, ultimately, that although the situation gives rise to suspicion, suspicion is not proof. Therefore, I conclude that the General Counsel has failed to establish by a preponderance of the credible evidence that the removal of the Hannons from the company-owned premises was discriminatory, and in reprisal for Hannon's union activity. I further conclude, therefore, that Respondent did not violate Section 8(a)(3) and (1) of the Act by its actions in this instance. C. The Discharge of Paul Mitchem Mitchem had been engaged in the textile printing industry before coming to work for the Respondent in March 1974. However, in his early experience in the industry, he had acted as a backtender, an assistant on the textile printing machine who watches the rolls of cloth after they are printed and stands in back of the machine to check the rolls and assists the printer. The particular machines on which Mitchem had worked as a backtender in his earlier employments were Rice Barton machines, the same type and make of machine on which he worked at the Repondent's plant after March 1974. When he was hired in March 1974 Mitchem worked as a printer rather than as a backtender. However, inasmuch as he had not worked before as a printer, he was considered to be a learner or an apprentice. In December 1974, Mitchem was laid off by Respondent, presumably for lack of work. He was rehired in August 1975 after being informed by a representative of the Respondent that he was again needed. However, at that time, he was living approximately 165 miles from Bamberg, South Carolina, and Respondent evidently saw sufficient promise in him, and was pleased enough with his earlier work as an apprentice printer to pay the expenses to move his trailer home from the distant area back to Bamberg. That he was considered a satisfactory employee before the election of December 18, 1975, is evident from the record inasmuch as the Respondent did not produce evidence, nor was there any testimony, that Mitchem was not performing up to the performance standard that was required of him in view of his rather limited experience as a printer on a Rice Barton machine. Shortly before the election, Mitchem spoke to Willard Wood, superintendent of printing, who told Mitchem that the latter could go in to anybody's print shop and run a machine if he voted right. Also, in December 1975 Mitchem requested of President J. Dan Moore if he was not entitled to a raise. Although Moore made him no promises, he did not say that Mitchem was not deserving of a raise because of substandard work or anything to that effect. Shortly after the election, although Mitchem had not been particularly active in the organization of the printers, he and former employee, now supervisor Harter, who were at that time close personal friends, were drinking beer in Mitchem's trailer. This was at approximately the beginning 311 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of January 1976. On that occasion, while they were drinking and talking, Mitchem informed Harter, who was by then Mitchem's supervisor on the second shift, that he, Mitchem, had voted for the Union. It was after this information was given to Harter that Mitchem's problems seem to have begun. Thus, on March 9, 1976, Mitchem was given a reprimand or a written warning dated February 4, 1976, which was allegedly initiated by Harter and Wood, and signed by Wood on February 4, 1976, but not signed by Harter until March 9, 1976, or approved by President Moore until March 10, 1976, to the effect that Mitchem's production has continued to be substandard as compared to the employee on the first shift, who was less experienced than Mitchem, but produced much more printed cloth than did Mitchem during the same comparable period of time. Mitchem refused to sign this on March 9 when it was presented to him and his remarks, which were placed on the written warning, were that he did not feel as though he was holding back on production and felt that he ran the production as fast as possible when the pattern permitted him to do so. Although Wood testified that he had verbally warned Mitchem and held back until he was sure that Mitchem's production did not improve after having given Mitchem repeated verbal warnings, it is significant that Harter was not asked to sign this warning until March 9, 1976, although he was the immediate supervisor of Mitchem.9 Again, on the same day, March 9, Mitchem was presented with a second written warning which had been signed by manager of printing, Bill Jones, and by Willard Wood, of which Harter knew nothing and which was signed by Mitchem because Mitchem had printed 4,000 continuous yards of what was called "out of fit cloth" on which was printed a pattern called Pink Faith. Mitchem admitted that he had done this and did sign the reprimand. However, on the written warning or reprimand Mitchem did state that he did not realize that he had run that many bad yards of goods. Again, although Jones and Wood sought to explain the peculiar circumstance of Harter's not knowing about this particular "out of print" matter, I find their explanation to be unsatisfactory, in view of the fact that Harter, as Mitchem's immediate supervisor, and as part of his duty with only two machines operating on the second shift, would certainly have been aware of the fact that 4,000 yards of material were printed "out of fit," inasmuch as he admitted that he visited each machine a number of times a shift. It would seem reasonable that Harter would have at least been instructed or questioned as to why this much cloth could have been badly printed, even assuming that Mitchem, as the printer on the machine at that time, may have been primarily responsible for the operation of the machine and to see that the printing of the cloth was being properly applied. Thus, the explanation for Harter's not being consulted appears to be contrived. 9 I do not credit Wood's testimony to the effect either that he had been given repeated warnings or that he had made out the wntten warning on February 9 but had held back in order to see if Mitchem's production improved. The final incident which preceded Mitchem's discharge on May 17, 1976, occurred on May 11, 1976. On that day Mitchem was running, on his Rice Barton machine, a printing style known as No. 36 Blue Doris. The Doris pattern, printed on white cloth, consisted of blue flowers of various sizes with smaller purple or lavender flowers and green leaves. There were also several different shades of blue in the blue flowers. Accordingly, the printing on that machine at that time required the use of several different colors. However, as the printing proceeded, Mitchem noticed that there were several small vertical green streaks in the cloth. He immediately stopped his machine and Harter was called over. This was at about 3:30 p.m. A patch of the cloth was shown to Harter, Harter examined the cloth and told Mitchem to continue running the machine inasmuch as it was the opinion of both Mitchem and Harter that these marks were caused by lack of what was commonly termed "backfill." Backfill is a starchy material which is applied to the back of the cloth in the finishing process before the cloth is printed in order for the printing ink to take properly and for the purpose of even distribution of the printed pattern. In any event, since both Harter and Mitchem agreed that these marks were caused by missing backfill, a defect in the cloth where the backfill had not been fully applied, Harter decided that there was nothing that could be done and instructed Mitchem to proceed with the printing on that particular roll. Accord- ingly, Mitchem began running his machine again.10 After starting up his machine again and running it for approximately one half hour, Mitchem saw that the streaks were still present. Therefore, he stopped his machine, went to the back of the machine where the cloth had already been printed, cut off a patch, and sent Hiott to get Harter. Harter came to the machine, again in the presence of Hiott, and after looking at the cloth and looking at the patch told Mitchem again to print the cloth inasmuch as the streaks appeared to have been caused by missing backfill and not by any other defect in the printing process. Upon the foregoing order from Harter, Mitchem again ran his machine for approximately another half hour and still noticed the streaks. He again stopped the machine, again cut off a patch and took it to Harter. Harter came to Mitchem's machine and looked over the cloth. After examining the patch with the streaks, Harter agreed with Mitchem that it was caused by missing backfill and that nothing could be done. He thereupon told Mitchem to continue to run his machine. After Mitchem ran the machine again for the fourth time, he ran about 8,000 yards of cloth and then, that roll having come to an end, started a new roll. After running the new roll of cloth for approximately 500 yards, or thereabouts, Mitchem noted the streak, in fact, noted that it had become even worse. Again he stopped the machine and cut off a patch, showing it to fellow employee John Shelton who advised Mitchem that the latter had better inform Harter. Harter took one look at the patch after Mitchem took the patch into Harter's office and came back O1 From credited testimony of Mitchem and John Hiott, who was present during the conversation. In this particular instance, Harter's testimony did not differ materially from the testimony of Mitchem and Hiott. 312 ROCKLAND-BAMBERG PRINT WORKS, INC. with Mitchem to the machine. This time Harter stated that the streak was caused by chattering of the doctor blade, a part of the machine which cleaned off the roller so that the ink could be applied evenly. It is evident that when the doctor blade is not properly set or has a nick or becomes loose, the chattering effect is caused as the machine operates and the printing rollers turn. Harter then told Mitchem to repair the blade, which Mitchem did. He then replaced the blade in the machine and again operated. The balance of the cloth for that evening was properly printed, although there were still some marks remaining therein from missing backfill." Although Harter testified that the first three times that he visited the machine upon the request of Mitchem, he went only to the middle of the machine and did not go to the front of the machine since all he was looking for was missing backfill. However, each time he was shown a patch of cloth so that, even assuming the truth of Harter's testimony that he did not go to the front of the machine on the first three occasions on that evening, he could no more distinguish between missing backfill streaking or streaking caused by chattering of the defective doctor blade than could Harter. Additionally, his excuse that he only went to the middle of the machine and not to the front conflicts directly with the testimony of Mitchem who, although, perhaps not as articulate as Harter or Respondent's other witnesses, impressed me as having made every effort to be as truthful as possible under the circumstances and to recall as accurately as he could the events of the evening. The record establishes, and I find, that from an examination of portions of the material on the rolls that Harter printed that fateful evening, there were major defects in the cloth caused, in some instances, by lack of backfill and in other instances probably by chattering. Accordingly, I find and conclude that the yardage which was claimed to have been ruined that night or, at least devalued in regard to its ability to be sold as first class cloth was, indeed, poorly printed cloth which resulted in substantial loss to the Respondent. On the following day, Thursday, March 12, when Mitchem reported to his second shift job, he was called to the office of President Moore and told by Moore that he was suspended until the following Monday. The following Monday, May 17, when Mitchem reported for work, he was sent to the office and was given three checks and discharged. The Respondent argues that Harter did not see any chatter marks on the night in question until Mitchem's last visit to Harter's office. This argument is based almost entirely on Harter's testimony. However, I find the testimony of Mitchem, Hiott, and Shelton, to be more accurate. While I conclude that there was substantial loss to Respondent resulting from most of the cloth that was printed by Mitchem on that evening, I am equally convinced that Harter failed either in his duty as a supervisor to find the real cause of the streaks on cloth printed on Mitchem's machine or purposely let it go in order to substantiate a previously agreed-upon plan to rid the Respondent of Harter, a known union adherent, whose I All of the foregoing from credited testimony of Mitchem as supported by the testimony of Hiott and Shelton. discharge could cause, or substantially contribute to, a breakup of the unit of printers considering that the unit consisted of only five printers. While I accept the testimony of Respondent's officials that Respondent has, in the past, discharged individuals for lesser faults and without any previous written warnings, I cannot help but repeat, as noted above, the peculiar manner and the timing of the giving of the warnings on March 9 to Mitchem, one of which had been held back from February 4 and the other of which Mitchem's immediate supervisor, Harter, had no knowledge until it was presented to Mitchem. I also note that Mitchem was still, basically, an apprentice and not an experienced printer and, that although it may well be true that the printer is primarily responsible for the quality of the printing of the textiles run through his machine, it is equally true that the same consistent quality can evidently not be expected of an apprentice as a long-term, experi- enced printer. Moreover, to repeat, Harter himself could not or would not distinguish between chatter marks and backfill streaks. Additionally, not mentioned above, Union Vice Presi- dent Reese, who had many years of experience printing on the same make and type of machine as was used by Mitchem on the night in question, testified as an expert, and I find truthfully, that it is often difficult to tell the differences between the various types of imperfections caused in the printing process. I have considered also, in reaching the conclusions that I do, that until the election and until Mitchem told his former friend, Harter, that he had voted for the Union, there was no fault found with any of-Mitchem's work. In fact, Mitchem had been recalled by the Respondent after layoff and his move back to Bamberg had been paid for by the Respondent, which would indicate that Respondent was anxious to put back to work a valued, although somewhat inexperienced, employee. I have taken into consideration the fact that on cross- examination Mitchem at one point seemed to admit that he knew the difference between a streak caused by chattering and a streak caused by missing backfill. However, in view of the fact of the inability of Harter to make the distinction, I do not place great weight upon Mitchem's seeming admission in view of all of the other facts which I have related and considered above. Accordingly, I find and conclude that although Mitchem did, indeed, contribute in some measure to the spoilage of a large quantity of cloth which he ran on his machine on the night of May 11, 1976, I further conclude that this spoilage and omissions on Mitchem's part were utilized as a pretextual device by the Respondent to rid itself of a union adherent for the purposes hereinabove stated. Therefore, I further find and conclude that the discharge of Mitchem was discriminatory, that the prior warnings were part of the buildup to the pretext, and that, by the discharge of Mitchem, the Respondent was seeking to discourage adherence to and membership in the Union, and thereby violated Section 8(aX3) and (1) of the Act. In doing so, I, of course, have taken into consideration the Respondent's animosity toward the Union as evi- 313 DECISIONS OF NATIONAL LABOR RELATIONS BOARD denced by its protected statements as well as by the activity which I have heretofore found to have been violative of Section 8(a)(1) of the Act.'2 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found, as set forth above, that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action, set forth below, designed to effectuate the policies of the Act. It having been found that the Respondent by threats has interfered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act, I shall recommend that the Respondent cease and desist from. It having been found that the Respondent discriminato- rily discharged employee Paul Mitchem, it is recommended that the Respondent offer Mitchem immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges. In addition, I shall recommend that the Respondent make Mitchem whole for any loss he may have suffered by reason of the discrimination against him by payment to 12 I have also given some weight to the decision of the South Carolina Employment Security Commission decision of August 5, 1976, finding that him of a sum of money equal to that which he would normally have earned from the date of his discharge, less net earnings during said period. Backpay shall be comput- ed with interest on a quarterly basis in the manner prescribed by the Board in F W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act, the Respondent engaged in unfair labor practices within the meaning of Section 8(aX)(1) of the Act. 4. By discharging Paul Mitchem by reason of his support of the Union because he voted for the Union, the Respondent has discouraged and is discouraging member- ship in the Union and is thereby engaging, and has been engaging, in unlawful conduct within the meaning of Section 8(aX3) and (1) of the Act. 5. By causing the removal of Roy Hannon from the premises rented from the Respondent, the Respondent has not discriminated against Roy Hannon and has not violated Section 8(aX3) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] Mitchem was discharged without fault on his part. Respondent was represented by counsel in that proceeding, but did not present evidence. 314