Amoco Fabrics Co., Patchogue-Plymouth Division/Nashville Mills

I)F-CISIONS OF NATIONAL I ABOR RELATIONS BOARD) Amoco Fabrics Co., Patchogue-Plymouth Division/Nashville Mills arnd Amalgamated Clothing & Textile Workers Union, AFL-CIO, CLC. Cases 10-CA-15752, 10-CA-16016, and 10-CA-16329 February 22, 1982 DECISION AND ORDER BY Mi :M BIRS FANNING, JFNKINS, ANI) ZIMMI. RM AN On April 21, 1981, Administrative Law Judge William N. Cates issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs, the Charging Party filed cross-exceptions, and Respondent filed a brief in opposition to the Charging Party's cross-exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, t find- in adopting the Administrative L aw Judge' [)Decisiui in this proceed- ing. se dio not rely oin his grattitous conilent s i fni I regarding tilhe propriety of the Regional Director's aclitions in consolidaiti ng the cases iI- volved herein, as the Regional Director liiilossed the approprial te prnce- dures. IIi fn 2 if his Decision, the Adtmiiristrativse La .i Judge denied the Gen- eral Counsel's post-hearing miotiton tio reotpetn the record hereti and It consolidate this proceeding with three cases insvolving conduct by Re- spondent which o ccurred after the hearing closed in this proceeditng While specifically declining tot renew this motin b efotre the Board, the General Counsel has excepted Io the Administrative Las: Judge's denial of the motion Inasmuch as the motioot is now mnoot and tno party has been prejudiced by its denial, we affirm the Administratise l.aw Judge's ruling r RespontdenI t antd the General Counsel have excepted to certain credi- b ility findings made by the Administrativ e .;,w Judge It is the Board's established policy not tio overrule an administratise law judge's resiolu- tions with respect to credibility unless the clear preponderatnce oif all of the relevant ev idencte convinces us . hat the resolutitons are incorrect Standard Dry Wall Producti. Inc., 91 NL RB 544 19 1950). enfd I88 F: 2d 362 (3d Cir 1951) We have carefully examined the record and find noi basis for reversing his findings. In par 31. sec Il.LA. if his Decision, the Administrati, e Law Judge stated that, "''he fact Resptondent may have later reviewed and lessetned discipline it meted iout ito emplo>yee Warrent does establish an untlaw ful motivem." It appears that the Administrative L.aw Judge inttended to state that. "The fact Respondent mtay > hase later restiewed anil lessened l discipline d.oes ntot establish ant unlawful moti' e " We thierefire correct this inadvertent error. In adotpting the Administrative Law Judge's ctnclusitoin that Respond- ent discharged employe e Peggy Ruth Gardner because tof her uniton aind protected concerted acti'vties, we dio not rely ioti the coll.ersatilon be- tween Gardner and "Supervistor" Johnnie Skininer as esitdetnce of Re- spondent's aninus toward Gardner' s protected aclivisties Skinner was never alleged tol be a supervisotr or an ageIt tif Respondent. anid no e i- dence w as presented iupoin which a finditng of such superi, sors status coiuld be based This errtor in the Adminitstratise I.aw Judge's findings does not affect his cotnclusionts. however. iiasmuch as he relied tin olher independent evidenice of Resptonident's animus toward Gardiner's protect- ed actlvitiles ' The General Co(unsel has ex cepted to the Admiristrative L.ass Judge's failure ito discuss whether tor not the conItersatiionl betweein cii- 260 NLRB No. 38 ings, 2 and conclusions: of theAdministrative Law Judge and to adopt his recommended Order, as modified herein.4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Amoco Fabrics Co., Patchogue-Plymouth Division/Nashville Mills, Nashville, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Add the following as paragraph l(i) through (k) and reletter the present paragraph l(i) as para- graph 1 (1): "(i) Confiscating petitions being circulated by its employees which are being circulated for any pur- pose that is protected by the Act. "(j) Changing the work assignments of its em- ployees or imposing more onerous working condi- tions on its employees because they have engaged in union or protected concerted activities. "(k) Causing its employees to take leaves of ab- sence or discharging its employees because they have engaged in union or protected concerted ac- tivities." 2. Substitute the following for paragraph 2(a): "(a) Offer Clemenstine Hendley immediate and full reinstatement to her former burling job and provide her with the assistance of a doffer when she is temporarily performing reroll work, consist- ent with past practice, or, if the burling job no longer exists, offer her immediate and full reinstate- ment to her former reroll position, or, if those posi- tions no longer exist, offer her immediate and full reinstatement to a substantially equivalent position, without prejudice to her seniority or any other rights and privileges previously enjoyed, and make ployee Elijah Bailey III and Emplos,!ment Manager Gene Shearl . in which Shearl asked Bailey if he thought the Union would huy him a tackle hbox, coinstituted ana unlawful interrioga tion as alleged We find it unntiecessary to pass ion this allegatio in, howeer. since anr finding (of alt 8(a})() I .iolation would mnerel be cum mulatise and would hav e nIt effee c ont the remedy herein Int adoptiuig the Adminislratte L.ass Judge', D eciionn herein, we note that the legalit t of Respondentl' written no-solictationi. n o-distributitt rule its set forth in fn 17 of the Adm iilustrati, e law Judge's De cis i o, n is nott i ssue, atid therefotre we do noi! pass oni its v alidity int adopting the Adminiislstrai e L.aw Judge's ctionclusi, i, that Respontdenlt', oral t so-tlici- aliton., no-distribut ion rule siolaled Sec (ai)(l), Member Fanntin g does intlt rely (on Stolddard-Quirt, e lu/tula auretntg CoI. 138 NI.RH 615 (I h2), il .hit.ch he disscnted and ,hiuch sas, cited bh the Admnistramtise Law Judge eWe ha.te modified the Administralis ie Ias Judge's recommnended Order to fotlloi aind reinted ntmore accuratel the actual isolatitouts founid We has e alsoi ttid ified tie Adminitratistl e aw Judge's notice to crl- ftrl to our Order 336 AMOCO FABRICS CO. her whole for any loss of earnings she may have suffered as a result of Respondent's causing her to take two leaves of absence, such backpay to be computed in the manner set forth in 'The Remedy' section of this Decision." 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPI OYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT coercively interrogate our employees concerning their union activities or the union activities and sentiments of their fellow employees. WE Wi L NOT threaten our employees with discharge if they join or engage in activities on behalf of the Amalgamated Clothing & Textile Workers Union, AFL-CIO, CLC, or any other labor organization. WE WILL NOT threaten our employees that they will not be able to take grievances to their supervisors if they select the Amalgamat- ed Clothing & Textile Workers Union, AFL- CIO, CLC, or any other union, as their collec- tive-bargaining representative. WE WII.. NOT tell our employees that they do not have to honor subpenas issued by the National Labor Relations Board. WE WILL NOT threaten our employees that we will close our plant if they join or engage in activities on behalf of the Amalgamated Clothing & Textile Workers Union, AFL- CIO, CLC, or any other labor organization. WE WIll. NOT maintain or enforce any rule that prohibits our employees from distributing literature in nonworking areas on nonworking time where such distribution is protected by Section 7 of the National Labor Relations Act, as amended. WE WILL NOT maintain any rule that prohib- its employees from soliciting on nonworking time where such solicitation is protected by Section 7 of the National Labor Relations Act, as amended. WE W'II.l NOT confiscate petitions being cir- culated by our employees which are being cir- culated for any purpose that is protected by the National Labor Relations Act, as amended. WE Wlll_ NOT deny access to our plant premises to employees who are engaged in union or protected concerted activities. WE WILL NOT change the work assignments of our employees or impose more onerous working conditions upon our employees be- cause they have engaged in union or protected concerted activities. WE WILL NOT cause our employees to take leaves of absence or discharge our employees because they have engaged in union or pro- tected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of their rights to self-organi- zation, to form, join, or assist any labor organi- zation, to bargain collectively through repre- sentatives of their own choosing, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL offer to Peggy Ruth Gardner im- mediate and full reinstatement to her former job or, if that position no longer exists, to a substantially equivalent position without preju- dice to her seniority or any other rights and privileges previously enjoyed, and WE WIll make her whole for any loss of pay she may have suffered as a result of our discrimination against her, with interest. WE WILL offer Clemenstine Hendley imme- diate and full reinstatement to her former burl- ing job and provide her with the assistance of a doffer when she is (temporarily) performing reroll work, consistent with past practice, or, if the burling job no longer exists, offer her immediate and full reinstatement to her former reroll position, or, if those positions no longer exist, offer her immediate and full reinstate- ment to a substantially equivalent position, without prejudice to her seniority or any other rights and privileges previously enjoyed, and WE WILl. make her whole for any loss of earn- ings she may have suffered as a result of our causing her to take two leaves of absence, with interest. WE WILl make Elijah Bailey III whole for any loss of earnings he may have suffered as a result of our having removed him, contrary to our past practice, from the position of substi- 337 D)ECISIONS OF NATIONAL LABOR RELATIONS BOARD tute lead operator because of his union and protected concerted activities, with interest. AMOCO FABRICS CO., PATCHOGUE- PI.YMOUTH DIVISION/NASHVILLE MI lIS DECISION STAITEMENI OF IHE CASE WIllIAM N. CAT S, Administrative Law Judge: This matter was heard at Adel, Georgia, on November 17-20, 1980, and January 5-7, 1981. The charges were filed by Amalgamated Clothing & Textile Workers Union, AFL- CIO, CLC, herein called the Union or the Charging Party, in Case 10-CA-15752 on April 16, 1980 (amended on May 16, 1980); in Case 10-CA-16016 on July 9, 1980 (amended on August 12, 1980); in Case 10-CA-16329 on October 14, 1980. The Regional Director for Region 10 of the National Labor Relations Board, herein called the Board, issued a complaint and notice of hearing in Case 10-CA-15752 on May 30, 1980. On November 4, 1980, an amendment to the complaint in Case 10-CA-15752 was issued. A complaint and order consolidating cases and notice of hearing in Cases 10-CA-15752 and 10- CA-16016 was issued by the Regional Director for Region 10 on August 20, 1980, and, thereafter, on Sep- tember 5, 1980, an amended complaint and order consoli- dating cases and notice of hearing issued in the same two cases. Thereafter, the Regional Director for Region 10 issued a complaint and order consolidating cases and notice of hearing in Cases 10-CA-15752, 10-CA-16016, and 10-CA-16329 on November 4, 1980. The complaint in Case 10-CA-16016 was further amended by counsel for the General Counsel on November 19, 1980. The consolidated cases' allege that Amoco Fabrics Co., Pat- chogue-Plymouth Division/Nashville Mills, herein called Respondent or Employer, violated Section 8(a)(1) of the National Labor Relations Act, as amended, herein called the Act, through various acts of interference, restraint, and coercion of its employees by its supervisors and agents: and violated Section 8(a)(3) and (1) of the Act by imposing more stringent working conditions on and sub- sequently suspending its employee Pat Warren; and fur- ther violated Section 8(a)(4), (3), and (1) of the Act by issuing a written warning to and thereafter discharging its employee Pat Warren; and violated Section 8(a)(3) and (I) of the Act by issuing a warning to its employee Donald Dean Tidwell; and violated Section 8(a)(4), (3), and (I) of the Act by discharging its employee Donald 'The Regioinal i)irectr, although consolidating the Vsriotius cases. did not at ally poinl collnsllidati the conlplaillts II would appear that (he pro- tedure follosed by the Regional Director in issuing munltiple comnplaints and consolidatinig only tile cases i is tClihcalls correcl. [leos;er, such a procedure illIkes it dil'icui for the parties as sucll a an adnlniiii tati sC lass jl;dge to idclerniin plicisels uhlal Issiues }iisc heeel joined or lhat allegationls hlave heell adnilted Such a procedure requires all ulldule ex- ceSSil c amount i i ' tlinec to sepal'aie aid isolate issues and to inlsure that each specific issue ia. beeni addressed hb the parties alld aill adnlinitri- tise law judge I lsiuld appear Ihil a preferred nlcithod of pleaditing would he to iha.. all a x eilncil Iof calilins iade in ilunibered paragriaphs li ited Jl fi al s pilactl li to a %latCieniil l'i a 1 sill oae IC of Cire C lisl i itsC all conaiueiicd ill lhte ftur corneTs Of ai single docuiimenli Dean Tidwell; and further that it violated Section 8(a)(3) and (1) of the Act by issuing written warnings to its em- ployees Kenneth R. Locklear and Joan Foxworth, by suspending its employee James Albert White, by remov- ing its employee Elijah Bailey III from the position of substitute lead operator, by imposing more onerous working conditions on its employee Clemenstine Hend- ley, by causing its employee Clemenstine Hendley to take a leave of absence, by discharging its employees Abel C. Braswell and Peggy Ruth Gardner, and by issu- ing a warning to and subsequently suspending its em- ployee Rudolph Lovett. Upon the entire record,2 including my observation of the demeanor of the witnesses,3 and after due considera- On March 2. 1981, counsel for the General Counsel filed a motion. dated February 27, 1981, to reopen the record in Cases 10-CA-15752, 10 CA-16016, and 10-CA-16329 and consolidate therewith Cases 10- CA 16568, 10-CA 16614, and 10-CA-16682 Counsel for the General Counsel contended in its motion that the subsequent listed cases involved conduct occurring for the most part on, about, or after the hearing was scheduled in the previous cases. Counsel for the General Counsel at- tached to its motion a copy of an order consolidating cases and complaint and notice of hearing in Cases 10-CA-16568, 10-CA-16614, and 10-CA- 16682 in which a hearing date of November 18, 1981, had been ordered by the Regional Director for Region 10 of the Board By telegraphic notice. I caused a Show Cause Order, dated March 3, 1981, to be served on the parties with a return date of March 13. 1981. Respondent and the (ieneral Counsel responded to the Show Cause Order Counsel for the (ieneral Counsel restated in its response essentially the same grounds it had ads anced ill its notiton to reopen the record. Respondent contended couinsel for the General Counsel's motion was "a sham in an effort to obtain a new closing date and consequently a new date for filing briefs" Respondent further coteinds that to reopen the record would enable ciounsecl for the Cieneral Croiunsel to file a brief arguing its position in Cases 10 CA 15752. 1() CA 1016, and 10-CA-16329 when counsel for the General Counsel's brief had been previously rejected as untimely filed. Respondent further contends aty such attempt by counsel for the iceneral Counsel would be "unlconscionable" and should he rejected for that reason Respondent further contended that counsel for the General Counsel in attaching to its motion a copy of the order consolidating cases alnd complaint and notice of hearing ill Cases 10-CA-16568. 10-CA 1l614, and l0 CA- 16682 was attempting nothing more than to "preju- dice the Adnilnistrative Iaw Judge in his decision in Cases 10 CA 16329, 10-CA 10016. and 10 CA-15752,' and that such conduct on the part of counlsel for the General Coulnsel was "totally reprehensible" and should not he coindoned While it is true that counsel for the General Counsel's motionl to reopen the record fiilos wed shortly after its untimely brief was rejected and returned Ito it. I do not consider the filing of such a motion tol constitute a sham oir to be reprehensible I find it unnecessary to consider such allegations and have given them no weight in my deter- mnllation to deny counsel for the General Counsel's motion. Counsel for the General Co unsel's motion fails ion its own merits It would have unlduly delayed the instant Decision on the allegations already heard by me to have kept the record open until the new allegations could be heard commencing on November 18. 1981. Counsel for the General Counsel did not indicate any desire or any availabilihty for any earlier date that the matter could hase been heard other than the hearing date of November 18. 1981. Additionally. the three Charging Parties ili the subsequenrly tiled cases are not the same as the Charging Party ill the inlstant cases In the interest of a timely resolution of those matters already heard. I dens counsel for tle Genceral Coulsel's motion to reopen the record 't lie factl fouind herein aire based ain the record as a whole and upon riil personal bhser'.ationi of, the witnesses Time credibility rcsolulionis hereti havec been derinled frornm a review of the entire testimotiial record and exhibits with dlue regard tonr the logic of probahility. the denmeanor of the llltnesses. and the teachilig of V 1I..B. WUaon l anl ualujacturitng 'mnnrpuon,, 369 I S 4014. 4()8 (1962) As to anll ltlcesses has,,lg testified i ciontradictionl of the findiings herein. their testimony has been discredit- tId eithei ;s ha,,ilg beenl iin conliclt with the estlimoini of credible vit- elsses or hbeause It w Ias in and It' ilself unsliorths of belief All teslnnmoni has heenl rcv lescd ad and eigehd ill the light of' the entire record ('monitimued AMOCO FABRICS CO. tion of the brief filed by counsel for the Respondent, I make the following: FINIIN(iS :01 FAC I 1. JU RISI)ICH(tON Respondent is a Georgia corporation with a plant and facility located in Nashville, Georgia, where it is en- gaged in the manufacture and sale of textiles. During the 12-month period preceding the issuance of the most recent complaint herein, Respondent sold and shipped finished products valued in excess of $50.000 from its Nashville, Georgia, facility directly to customers located outside the State of Georgia. The complaints allege, Re- spondent admits, and I find that it is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. IABOR ORGANIZAT ION The complaints allege, Respondent admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. rHi At I .EGI I) UNI AIR IAHOR PRACTICI S It is undisputed that the Union publicly began its orga- nizational campaign among the 1,300 employees at Re- spondent's plant near the end of March 1980. It is also undisputed that Respondent became aware of the cam- paign, and it is alleged by the General Counsel that Re- spondent thereafter began to engage in conduct violative of the Act. In establishing the alleged violations, counsel for the General Counsel relied on the testimony of a number of employee witnesses. The testimony and re- sponse thereto are set forth below essentially in the order established by the various complaints considering all alle- gations of each complaint before considering the next complaint. The following named individuals with indicated titles were either admitted or stipulated to be supervisors and agents of Respondent within the meaning of the Act, or there was no dispute with respect thereto: Van Cochran, plant manager; Gene Shearl, employment manager; James Sego, employee relations manager; Harold Hodges, finishing superintendent; Gene Williams, third- shift superiotendent; B. J. Armistead, textile superintend- ent; Gerald Lewis, weaving superintendent; Pete Peter- son, extrusion supervisor; Virgil Mathis, extrusion super- visor; Dan Jones, extrusion shift supervisor; Lynn Duck, supervisor; Howard Bennett, weaving shift supervisor: Barbara Walker, weaving shift supersisor: Marlin Mc- Clellan, weave room supervisor, Robert Tucker, weav- ing supervisor; Betty Tucker, warping department super- visor; James Beck, finishing process control engineer; J. C. Dixon, process control engineer; Rick Hingson, beall- ing supervisor: Collis Adams, maintenance supersisor: E. L. Nelson. supervisor; and Linda Roberts, plant nurse Throughout this Decision, the correct title of the super- 'CoullIs. Ifor Ihe ( rirlcr;il t o' i llt' l II Cttllptcitd Ito Filc 1III ullllici x' brIcr 11 unlltfllT] flled brill . Ill Udlllig aill '"i '''' ,ai S rclturnc to co ,tllI1 ot1 Ihe Generrl] I('lIil ]11- 1 M :id \ 11' I t IlIl I t i llin, x iI,, J C I dl dl i IlI [hit 1Illaliil- Ii O1'f Ill ta I I )"L IIIIII visors and agents will be utilized as though the correct title had been pleaded in the various complaints. A. Violations Alleged lin Case 10-CA-16329 The General Counsel contends in Case 10-CA-16329 that Respondent imposed more stringent working condi- tions on its employee Pat Warren on April 15, 1980, be- cause of his membership in and activities on behalf of the Union in violation of Section 8(a)(3) and (1) of the Act; and further contends that Respondent violated Section 8(a)(4), (3), and (I) of the Act when it issued on Septem- ber 19, 1980, a written warning to and thereupon dis- charged its employee Warren because he gave testimony to the Board in Case 10-CA-15752 and because he en- gaged in union and protected concerted activities. Addi- tionally, in Case 10-CA-15752 at paragraphs 13, 14. and 14(a), the General Counsel alleges Respondent, acting through Process Control Engineer Dixon on or about April 2, 1980, and Weaving Superintendent Lewis on or about April 9, 1980, threatened employees with dis- charge, with more stringent working conditions, and with futility if they joined or engaged in activities on behalf of the Union in violation of Section 8(a)(1) of the Act; and still further at paragraph 18 of the complaint in Case 10-CA-15752 alleges Respondent suspended its em- ployee Warren from on or about March 28 until on or about April 2, 1980, because of his membership in and activities on behalf of the Union in violation of Section 8(a)(3) and (1) of the Act. Counsel for the General Counsel relied on the testimo- ny of employees Warren and Fackler to establish the al- leged violations listed above. Employee Pat Warren commenced work for Respond- ent in April 1972. At the time of his discharge in Sep- tember 1980, he was a style change loom fixer under the supervision of Warping Department Supervisor Betty Tucker. Warren stated a group of Respondent's employees de- cided something needed to be done about working con- ditions at Respondent in September 1979. Warren was chosen as the spokesperson for the group. According to Warren, he contacted the Board several times in Valdosta, Georgia, and the Board recommended he go to the Federal Labor Board in Thomasville, Geor- gia, because as such there was nothing that could be done for him at the Board. Warren testified that the indi- vidual at the Federal Labor Board in Thomasville, Geor- gia, told him that unless the employees at Respondent had union representation, they had no rights in the State of Georgia 5 Warren testified he contacted the Union herein, and, in January 1980, union officials came to his home to assist in organizational efforts. The employees started their campaign sometime in February or March 1980. Warren testified the first time the union campaign went public was on March 30, 19080. On that date Warren along with other of Respondent's employees handed out union leaf- lets at Respondent's plant. According to W'arren, he wsas 339 I ,takc ofIlil;l II notic. Ithat 11. N;ljtional I l;ho(r RCIrl;I1on Bioardi d.oc. not h[,xc ,, ctahi,hed of'fi. ill In oae lL' . (Georgla DECISIONS OF NATIONAL LABOR RELATIONS BOARD seen giving out union leaflets by Textile Superintendent Armistead, Weaving Superintendent Lewis, and Plant Manager Cochran. Warren testified he was discharged on March 28. 1980, 2 days prior to the employees going public with their union campaign. Warren stated he was performing work on a loom which his supervisor had told him to work on when a maintenance employee by the name of Bob Fackler came to where he was working. Fackler told Warren that Fackler's supervisor had said for Warren to help Fackler straighten out a loom. Warren testified he had been working on the loom with maintenance em- ployee Fackler for about 5 minutes when Warping De- partment Supervisor Tucker walked up and wanted to know what he was doing at the loom Fackler was work- ing on. Warren told Tucker he was helping Fackler as she wanted him to do. Warren stated Warping Depart- ment Supervisor Tucker asked him who was his supervi- sor, she or maintenance employee Fackler. Warping De- partment Supervisor Tucker asked Warren to go to the office with her. According to Warren, Tucker asked him if he were trying to make her out a liar. Warren told Tucker he was not trying to make her out anything, that he was just stating the facts as he knew them. Warping Department Supervisor Tucker then took Warren with her to Weaving Superintendent Lewis' office. According to Warren, Tucker first entered Weaving Superintendent Lewis' office, had a conversation, and then invited him in. Warren asked if he could have J. C. Dixon with him and was told by Tucker that he did not need anyone. Warren stated that before he could sit down, Weaving Superintendent Lewvis told him, because of the serious- ness of his offense, he was fired. Warren asked what the offense was, that he had a right to know why he was being fired, and Lewis told him there was no use saying anything else, he was fired. Warren testified he was handbilling on March 31, 1980, at Respondent's plant and that Plant Manager Cochran approached him and asked him if he would go and visit with Employee Relations Manager James Sego. Warren visited Sego's office. Present at the time in addi- tion to Warren and Sego were Textile Superintendent Armistead and Warping Department Supervisor Tucker. Warren stated Sego told him he had been treated too harshly by Respondent and "if you want your job back, come on in and go to work. We'll give you those three days." Warren stated he told Respondent's representa- tives he was a tired old man and wanted the next day, April 1, 1980, off. Warren testified he was not told his termination was being reduced to a suspension, but was rather told if he wanted to come back to work he could. Warren testified he was never paid for the time he lost between March 28 and April 2, 1980. Warren returned to work on April 2, 1980, and imme- diately went to the toolroom to obtain his toolbox and ascertain if his tools were there. Warren testified Process Control Engineer J. C. Dixon and Warping Department Supervisor Tucker walked into the toolroom with him and that "they [employees] had some posters-union posters, in the break area, and all the people were proud to see mc and waving at me and all." According to Warren, Process Control Engineer Dixon stated. "all this commotion going on, all this talking, all this stuff going oni in this weave room, we don't want to hear anymore of it. That's it, it's over." Warren testified he told Dixon it was not all over: "We was going to organize a union and he hadn't heard it all yet." Dixon allegedly stated, "Pat, it's not going to work .... They tried that in Tifton last year at Stevens and it didn't work, and he said it won't work here." Warren testified he stood there a little while and then asked Dixon if he wanted him to go to work; Dixon indicated yes, but "he said, your past work record will not count anymore. It's over. You start anew. He said you've got to be 100 percent. He said if you make any little mistake, you'll be terminated again."6 Warren testified that commencing March 14, 1980, Weaving Department Supervisor Tucker would speak to him about his job every 10 days. Warren testified, how- ever, he was hospitalized from April 20 until June 1, 1980. Warren stated he wore a union button from April 9, 1980, until he was terminated. Warren testified Weav- ing Superintendent Lewis asked him about a badly worn gear which fit a lino loom machine on April 9, 1980. Warren testified he did not know if he put the gear into the machine or not, and asked Warping Department Su- pervisor Tucker to see if that was the one he put on. Ac- cording to Warren, Lewis told him he was paying him $6.16 per hour and that he wanted him to do a good job. Warren responded that he always did good work and that he intended to continue to do so. Warren stated Lewis told him he wanted more, better, and faster work and for Warren to be on the ball or he would get termi- nated. As part of his continuing efforts for the Union, Warren testified he collected union cards on April 13, 1980, in the men's restroom and was seen doing so by Weaving Supervisor Robert Tucker.' Warren testified the card he obtained in the restroom that day from a fellow employ- ee committee member was that of Abel Braswell, and that he stated at the time to his fellow employee he was proud to get the one from Abel Braswell. Warren testi- fied that on April 19, 1980, the day before he entered the hospital for surgery, Warping Department Supervisor Betty Tucker pointed to his union button and said, "As long as you wear that we cannot be friends." Warren testified Warping Department Supervisor Tucker showed him a harness on a lino loom machine on August 19, 1980, and told him that she knew he did not make the mistake which had been made on the machine, but she wanted him to see it so that he would not make that type of mistake in the future. Warren testified he was terminated on September 19, 1980. Warren in describing the events leading up to his discharge testified the first thing that happened that morning after the whistle blew was that Warping De- partment Supervisor Tucker sent him to Weaving Super- visor Robert Tucker to find out what Tucker wanted ' As '\ill be dicus cdl it/jri in thils Decision. employee', particularly (ilirdnetr land IlutghCs, had altllrlpted to circulate ai petitiln seeking to hal Resptlldcutll I tillliltc clplo CC Waren oi March 3i. 19() 7 WlarretlU sittId n crl r,-exanlaliollato thai Weaving Super, isor rucker iwlos ilot ciosic lelnogh 'to himrl in ihe haillroom ton ee "'hose lame ,\as ion the card aih }irte /blaitli cntril',oec lr.a,, el til ion crd from a follow cnl,,cplt 140 AN1()C() 'I AIRICS C() him to do about a particular loom. According to :Warren. Weaving Supervisor Tucker w'as grouchy so he (Warren) simply got his toolbox and wsxent into another room and remained for a period of time. At approximate- ly 10:30 a.m. Warping Department Supervisor Tucker came to where Warren was and told him to go to the loom which he was to xork on and pull the harnesses out and then attempt to find some heddles to repair the harness xvith because Respondent did not have any ne w heddles in its supply room. Warren told Warping De- partment Supervisor Tucker that he thought he knew where some harnesses were back in a room and he would go and look for them. Warren stated he had the feeling Tucker did not want him to do so, but finally told him to go ahead and look for any old harnesses that might still be there in the back at Respondent's plant. Warren found some harnesses but not enough for the job he w'as working on. Warren needed approximately 300 additional heddles so he went to see if he could find Process Control Engineer Dixon. According to Warren, Dixon was in charge of the personnel who built harness- es. Warren did not immediately locate Process Control Engineer Dixon, but did locate an employee of Dixon's department named Richard Brady. According to Warren, Brady at the time he approached him vwas using an airhose with a jug of fluid cleaning and blowving off harnesses. Warren testified that Brady did not have on safety goggles. Warren testified he could not find any heddles on his own and while searching for additional heddles he remembered where some other harnesses were which had been taken out of machines and placed on a wall in a different department, and he decided to see if he could find his supervisor, Betty Tucker, to see what she wanted done. Warren testified he could not find Warping Department Supervisor Tucker at the time, but did happen on Textile Superintendent Armistead and asked Armistead if he could use the heddles from off of the harnesses which he knew about. Armistead asked Warren where Warping Department Supervisor Tucker was; Warren told Armistead he had not see her in a pretty good while. Armistead then told Warren it was all right to go ahead and use the heddles. Warren testified it was lunchtime when he met with Warping Department Supervisor Tucker. Warren told Tucker about the harnesses, but did not tell her he had already asked Textile Superintendent Armistead about them. Tucker told Warren they could probably use the harnesses he had located. Warren then told Tucker that he would need three or four men to help him get the harnesses down from the v'all where they' were stored. Tucker indicated she would get back to him with help. Warren stated the harnesses had hung on the wall for so long that they had dust and cobwebs clinging to them. Warren testified there was an airhose nearby so he picked it up and commenced to blow the harnesses off in an effort to get rid of the cobwebs and dust. Warren stated he was expecting Warping Department Supervisor Tucker to show up with the helpers he had requested. Tucker appeared without the helpers and stated, "Ah ha, I caught you without goggles using an air hose." Warren testified he told Tucker the air was turned on very little. however, according to Warren, she told him it did not matter, that the airhose wvas on and he needed eye goggles on. Warren testified Tucker told him the airhose situation 'was not really the reason she had coime back to w here lie was, that she wanted him to go with her to the office In the office T ucker "chew ed" Warren out for going over her head in asking Textile Superintendent Armis- tcead about using the parts Warren had located Warren stated that when Warping Department Super- visor Tucker finished saying what she had to say, he told her he walanted to say something personal to her, Warren then told Warping Department Supervisor Tucker that her husband, W'eaxiing Supervisor Tucker, was awful grouchy and that. if they were having family problems, he wished she and he would keep them at home so that he would not have to be involved in them According to Warren, this made Warping Department Supervisor Tucker angry. Warren testified Tucker then told him she was going to write him a warning for using the airhose without goggles. Warren refused to sign the warning. Warping Department Supervisor Tucker asked Warren to remain right where le was and she returned in ap- proximately 15 to 20 minutes with her husband, Weaxviig Supervisor Tucker. Ms. Tucker told Mr. Tucker that Warren would not sign the w=arning regarding the use of the airhose without goggles and asked him to w.itness it, Mr. Tucker then signed the w arning. Warren testified he at that time asked Warping De- partment Supervisor Tucker for a pair of goggles. Ac- cording to Warren, a requisition was made out by W'arp- ing Department Supervisor Tucker and he went to the supply room and obtained a pair of goggles. Warren then Relnt back to his toolbox, got a small wrench, turned the air pressure tip, and began to clean the heddles utilizing the goggles. Warren cleaned the harnesses, obtained the heddles therefrom, and finished working on the loom in the ma- chine he was assigned to work on. Warping Department Supervisor Tucker asked Warren upon completion of his assigned work on the loom to go to the office with her again. Warren testified Weav ing Superintendent Lewis was present in the office with Tucker and himself Weaving Superintendent Lewis told Warren that Re- spondent was going to fire him again. Warren testified Lewis also stated, "We've tried to work all this out with you and everything, said we haven't been able to do any- thing \with it, said I don't have any alternative but to ter- minate you." Warren protested by saying the air in the airhose he was using was barely turned on. Warren then asked for his check and was told it could not be pre- pared until the following Monday. Lewis then told Warren he would escort him out the door. Warren reminded Lewis he had left his tools and toolbox at the loom and he wanted to check the tools before leaving. Lewis accompanied Warren to the loom w. here they gathered up Warren's tools. Warren testified he had some old union posters in his toolbox at thile time he was gathering up the tools and he asked Lewis if he wanted to keep sonic of them. According to \Warrein, Lewis declined his offer. Warren stated he then attempt- .i41 I)FCAISI()NS ()OF NAII()NAI I .A(BOR R I .A. I()NS BO()ARD ed to pin a union button on I ewis, and, although Lewis 5was friendly, he would not let him do it. Warren testified he had never seen in writing a rule re- quiring the use of goggles. He stated, however, he pre- sumed there must have been one. Warren stated he had seen a rule about using goggles for grinders and stuff of that sort back in the miinitenance shop. Approximately 3 or 4 years previous to his discharge, Warren testified he had a job at Respondent w hich required use of an air- hose but he did not use goggles, but rather used safety glasses. Warren testified that at the time he was fired he was wearing safety glasses but not goggles. Warren fur- ther testified that to his knowledge loom fixers were never issued goggles. On cross-examination WVarren acknowledged he knew it was the proper thing to wear goggles when using an airhose at Respondent's plant. Warren also acknowl- edged the Respondent had provided tightly fitting gog- gles to wear when operating an airhose. Warren testified he had used an airhose while servicing lino looms and that Weaving Supervisor Tucker had seen him but had not said anything to him about it. Warren indicated the time period in which Weaving Supervisor Tucker saw him using an airhose without goggles w\as some years ago; and further, in response to a question by Respond- ent's counsel, Warren stated, "As far as I know, they [goggles] have always been available ever since I worked there." Warping Department Supervisor Tucker testified she instructed employee Warren on March 28, 1980, to make a style change on a particular loom. Tucker stated she checked later and found Warren was not working on the loom she had assigned him to. Warping Department Su- pervisor Tucker discovered Warren on the other side of the mill helping a fellow employee, Bob Fackler, per- form a task. Tucker asked Warren if he had completed the style change she had requested and Warren told her he had not, that he rather had come to help Fackler. Tucker informed Warren she wanted the style change completed on the loom she had assigned to him so that she could get the employees working that loom back into production and she would talk to Warren later Warping Department Supervisor Tucker then proceeded to Weaving Superintendent Lewis' office and discussed the situation with Lewis involving Warren's failure to make the loom change she had instructed him to make. Warping Department Supervisor Tucker recommended to Weaving Superintendent Lewis that Warren be termi- nated. Tucker testified that employee Bob Fackler had asked her earlier that same day if Warren could help him with a telescopic shaft on another loom. Tucker told Fackler that she could not spare Warren, that he had too much work to do, and suggested Fackler get the lino fixer on the particular job Fackler was working on to help him with the repairs rather than Warren. Counsel for the General Counsel called employee John R. Fackler, who testified he was an overhaul mainte- nance employee of Respondent and worked under the supervision of Process Control Engineer Dixon. Fackler stated on the day Warren was discharged [March 28, 1980] he told Process Control Engineer Dixon he needed some help on a shaft he was putting in a loom and he was going to get Pat Warren to help him. Fackler stated he went to the other side of the weave room from where he worked and spoke with Warren's supervisor, Tucker, and asked her where Warren was because he needed him for a few minutes. Fackler stated Warping Department Supervisor Tucker told him that Warren was working on a lino. Fackler proceeded ahead and told employee Warren he needed him on a loom to show him how to put the shafts in. Fackler testified the next thing he was aware of was Warping Department Supervisor Tucker came and spoke with Warren, but he could not hear what they said, and they left. Weaving Superintendent Lewis testified he terminated employee Warren at the recommendation of Warping Department Supervisor Tucker because Warren had failed to follow her specific instructions of making a style change on a loom. Warping Department Supervisor Tucker impressed me as an articulate witness worthy of belief and, according- ly, I credit her testimony with respect to the events sur- rounding the March 28, 1980, discharge [later suspen- sion] of employee Warren. Tucker had instructed Warren to perform a specific task. Warren failed to do so but rather went to another portion of the plant to help a fellow employee without permission. The testimony of employee Fackler, who was called by counsel for the General Counsel, tends to corroborate Tucker's testimo- ny in that he told Warping Department Supervisor Tucker he wanted Warren to help him; but rather than giving permission to Fackler to use Warren, she in- formed Fackler, according to his own testimony, that Warren "was working on a lino." I have concluded and find that the discharge of employee Warren on March 28, 1980 [which was later reduced to a 3-day suspension], did not violate Section 8(a)(3) and (1) of the Act. By Warren's own testimony, the employees did not go public with their union activities until March 30, 1980. There is no showing on this record that Respondent had any knowledge of any activity on behalf of the Union by employee Warren at the time it instituted its actions against him on March 28, 1980. Counsel for the General Counsel has failed to establish a prima facie case with re- spect to the March 28, 1980, action taken against em- ployee Warren by Respondent. The action of Respond- ent with respect to Warren on March 28 was in line with the past practice of Respondent as demonstrated by the fact that, according to the credited testimony of Warping Department Supervisor Tucker, Warren had received a warning on May 17, 1979, for performing an unsafe act. Warren had also received a warning for insubordination in March 1980, and was then discharged for his miscon- duct on March 28, 1980. The fact Respondent may have later reviewed and lessened discipline it meted out to employee Warren does establish an unlawful motive on the part of the Respondent at the time it disciplined Warren.' I therefore recommend that portion of the It ait al practice olf R Cspltldclnl foill t mppl',:c Relaionls Manlager Scgo to, rcx:, mc Ihc ftels iurs ounrlldirig Ihe dischargc iof cmlployecs, and it woe, his dclcralllinlaliol hich rcsulld in a reductlio from discharge to (;}irrud 342 AM()C() FAHIRICS CO). complaint in Case 10-CA-15752. which alleges Respond- ent unlaw fuilly suspended its employee Warren from March 28 until April 2. 1980, hbe dismissed in its entirety. Employee Relations Manager Sego testified employee Warren came to his office on March 31, 1980. Sego's only conversation with Warren was to ask Warren to have a seat telling him that Textile Superintendent Ar- mistead and Warping Department Supervisor Tucker would speak %with him momentarily. 9 Textile Superintendent Armistead testified he along with Warping Department Supervisor Tucker spoke with employee Warren in Employee Relations Manager Sego's office on March 31, 1980, and told him that his actions did not warrant a termination, his discipline was being changed to read "3-day suspension," and he would be able to report to work the next day. According to Ar- mistead, employee Warren \was pleased the discipline was being converted from a discharge to a suspension and asked for an additional day off stating he had not had enough sleep the previous nights because he had been up distributing leaflets at the plant. Armistead testi- fied he granted Warren's request for an extra day off. Warping Department Supervisor Tucker corroborated the testimony of Armistead adding only that she told Warren she expected him to go out in the plant and do his job as he had always done. I credit the testimony of Armistead and Tucker with respect to the March 31 meeting -with Warren. I simply find unbelievable Warren's testimony that he was never told his discharge was being reduced to a suspension. Warren acknowledged that he was put back to work and he further acknowledged that he asked for and was granted an additional day off to rest up from his hand- billing for the Union. Process Control Engineer Dixon testified he along with Warping Department Supervisor Tucker accompa- nied employee Warren to check Warren's tools in the tie-in room at the time Warren returned to work on April 2, 1980. Warren asked Dixon if all his tools were there, and Dixon informed Warren they had been locked in a toolbox in the tie-in room and had not been opened during his absence. Process Control Engineer Dixon tes- tified he told Warren he expected him to go back on his job, to do his job, to do what he was told, that he ex- pected good work from Warren, 100-percent work from him, and if he (Warren) did that, there would be no problem. According to Dixon, Warren told him that he was going out and do his job, but he was also going to get a union in there. Dixon told Warren that was his privilege. Dixon denied telling Warren on April 2, 1980, that all of this stuff in the weave room had to be over, that Respondent did not want anymore of it. Dixon also denied telling Warren that the Union had tried to come in at Stevens in Tifton and it did not work and it would not work at Respondent. suspending the discipline gitien to employee W'arren I conclude and find there "as aino unlaaful nlotiv ation inll Sego's review and reduction of the discipline given Warren 9 Sego denied saying to Warren, if he aianted his Iobh hack, ill he had to do was come into le ork and the Respondent would give him those 3 days, I credit Dixon's testimony inasmuch as it is very logi- cal and probable that a supervisor would instruct an em- ployee who has just returned from a 3-day suspension for failing to follow instructions that the employee is expect- ed to do what he is told and do his job 100 percent to avoid problems. I discredit Warren's testimony to the contrary, specifically the testimony he attributes to Dixon with respect to not wanting to hear anymore of the "commotion going on . . in the weave room." that the Union did not work at Stephens and would not work at Respondent, and that Warren's past work record did not count. I therefore recommend that those portions of paragraphs 13, 14, and 14(a) of Case 10-CA-15752 which allege Respondent acting through Process Control Engineer Dixon on or about April 2, 1980, threatened employees with discharge, with more stringent working conditions, and with futility if they joined or engaged in activities on behalf of the Union be dismissed in their en- tirety. The credited record evidence in this case does not support the General Counsel's contention that on or about April 15, 1980, and thereafter, Respondent im- posed more stringent working conditions on employee Warren. Warren was asked on April 9, 1980, about a worn gear which was placed in a loom machine. Warren himself acknowledged that he did not know whether he put the gear into the machine or not, but did not deny that he had. ' Further, Warren was shown on August 19, 1980, a mistake a fellow employee had made, was told it was not his mistake, but was only being shown to him so that when he had a like job to perform he would not make the same type mistake. Two instances of work per- formance discussion and/or training do not constitute, in my opinion, more onerous working conditions. Warren's claim that he was called into his supervisor's office every 10 days commencing on March 14, 1980, does not hold up under close scrutiny particularly with respect to an unlawful imposition of more onerous work- ing conditions. For one thing, the alleged calling into the office of Warren by Warping Department Supervisor Tucker commenced prior to any knowledge on the part of Respondent of any union or concerted activity on the part of employee Warren. It is also noted that during this same time period Warren was absent from Respondent for medical reasons from April 20 until June 1, 1980. Following Warren's return to work on June 20, he could recall only two instances when he was spoken to by Warping Department Supervisor Tucker-one instance being for talking too much, the other for smoking too much. The totality of each of these instances taken in conjunction with the two incidents set forth supra does not constitute, in my opinion, more onerous working "' I conclude and find that the comments Warren attributes to Weaving Superintendent Lewis as having taken place on April 9. 1980, did not constitute anti unlawful threat to discharge Warren nor did the comments constitute a threat of more stringent working conditions, hut rather only conlstituted all admonishment to an employee who had just recently re- turned frolm a suspension for failing to follow instructions I therefore recommend those portions Iof paragraphs 13 and 14 of Case 10-CA-15752 which allege unlawful threats of discharge and more stringent uorking iconditions intloliting Weaving Superintendent Leswis be dismissed in thcir entlrel: 34 3 DI)ICISI()NS ()F NAI'I()NAI. I.ABO()R RF.A' IO()NS H)OARD conditions. I therefore recommend that portion of the complaint in Case 10-CA-16329 'which alleges Respond- cnt imposed more stringent working conditions on its employee Warren commencing on or about April 15. 1980. be dismissed in its entiretyv. 'W'arping Department Supervisor Tucker credibly testi- fied that on September 18, 1980, she needed a style change done on a lino loom machine and asked employ- ee Warren to do the change. Tucker knew there were some heddles which could be utilized in the change in some old harnesses which were hanging on a wall of Re- spondent's plant. Tucker stated she checked on employee Warren to see what progress he was making toward ob- taining the needed heddles and effecting the style change. When Warping Department Supervisor 'Tucker approached the area where employee Warren was work- ing, she discovered he was using an airhose to blow debris from the harnesses without the use of safety gog- gles. Tucker told Warren he knew better than that and, according to Tucker, Warren responded, "Yes, you caught me this time." Warping Department Supervisor Tucker stated as a result of this safety infraction employ- ee Warren was terminated. According to Tucker, the next step in the disciplinary procedure with respect to employee Warren was termination. 2 Weaving Superin- tendent Lewis testified he approved the termination of Warren on September 18 based on Warren's having vio- lated safety rules-was using an air hose without protec- tive safety goggles-which was a violation not only of plant safety rules but also rules of the Occupational Safety and Health Administration. Warren acknowledged he was not wearing safety gog- gles at the time he was blowing debris from the harness- es from which he was going to obtain heddles to make the style change on the machine he was working on. Warren testified he was wearing safety glasses; however, the evidence tends to indicate glasses would not prevent debris from entering the eye from the side whereas tight fitting goggles would. Warren further acknowledged it was proper to wear goggles and that Respondent had provided tightly fitting goggles. Warren also acknowl- edged that, as far as he knew, goggles had always been available at Respondent. Further, Warren had signed for receipt of a copy of Respondent's safe practices guide, " I credit W;rpilng D)epartmenll Supers isor 1 ucker's tesilmonlly thai she did not point to crlployee 1Warren's badge and say that as long as he ,:ias w:earing th they could not he friends F ucker acknowledged speaking with Warren prior to his going to the hospital and stated Warren told her hie thouglti she was getting too far out onl 1 limb like Van Cochrarn, but did not explain to her what he ileaii. I conclude that the cvllers;lioln 'hich I find to have taken place as testilied to by Warping lDeparllmenl Supervisor 'I ucker, could not ill ally wsa)y ave colstituted all element oiI mote onlerous wsorking iconditionls or ally other violation of the Act. 12 II Miay 1979 Warretl had been given ai disciplinary wairnillg fior per- forming anl utialSilf act namely tlimblillg 0n a looni I discredit Warrcn's testinony Ihat it was necessary to climb on the loom il order to replace the thddles 1he overmshelnting eight of Ihe evidence considered it conjuncion nl witnh undisputed facts compels a conclusion that Warren's lestinmion taken ils i:a whole is ulworthy of belief in those places rwhere it cwcas contradicted or uncorrohoraled. (iar, Rooks, a loorl fixer. anid Allen Summerili. a maintetnance puller emplo)ee of Respondcnt. hboth testified it wa;ls ulneccssiary to climb oti ai loom to change heddlcs 'Warrenl had also recei\ed ai warning for illsubordainlion in March aind further had been discharged (which dlischarge wal. lat;er reduced to; a - day suspension) for gr iss iisebo1rdilliiOill ill March Ig0S( which, at page 12, paragraph 7, under safety rules, reads as follows: Never use air hose without protective goggles. Air hoses are not to be used to blow off clothing and should never be blown directly onto any part of your body. Various of Respondent employees such as Monroe Stone, Allen Summerlin, and Gary Rooks testified safety goggles were required at Respondent; and employee Buck Browning testified that protective goggles could be worn safely over safety glasses. I therefore discredit em- ployee Warren's testimony that he could not wear safety goggles over his safety glasses. It is undisputed that from on and after March 30, 1980, Warren engaged in activities on behalf of the Union of which Respondent was aware of the activities. However, it is well settled that the mere fact that an employee is or has been a strong union advocate cannot serve to insu- late that employee from discipline for violating lawful work rules. Tennessee Plastics, Inc., 203 NLRB 1 (1973), enfd. 488 F.2d 535 (6th Cir. 1973). If an employee pro- vides an employer with sufficient cause for discharge for which the employee would have been terminated in any event, the discharge cannot be held as unlawful merely because the offender was among the employer's most active union supporters. See Tower Foods, Inc., d/b/a Tower of Americas Restuarant and Hotel, 221 NLRB 1260 at 1269 (1975), and Klate Holt Company, 161 NLRB 1606 at 1612 (1966), and the cases cited at fn. 3 therein. In an 8(a)(3) case such as the instant one where an em- ployer's motivation is called in issue, the Board has set down certain guidelines which need be followed. Wright Line, a Division of' Wright Line, Inc., 251 NLRB 1083, 1089 (1980). Under the Wright Line principles, the Gen- eral Counsel has the burden of establishing "a prima facie showing sufficient to support the inference that protected conduct as a 'motivating factor' in the employer's deci- sion." Applying the Wright Line, supra, principles to the instant case, I consider the fact Respondent had knowl- edge of Warren's union activity, the fact that fellow em- ployees had protested his earlier discharge, and the fact he had been a longtime employee to raise a suspicion that Respondent had an unlawful motive in its discharge of Warren. However, I am persuaded and find that the evidence is insufficient to support an inference that a mo- tivating factor in Warren's September 1980 discharge was his union activity. I make this conclusion on the fact that Warren acknowledged he was not wearing safety goggles, that he knew and understood safety goggles were proper to be worn, and that as far as he knew Re- spondent had always made safety goggles available. Fur- ther, Warren had signed for and received a copy of Re- spondent's safe practices guide which specifically stated airhose was not to be used without safety goggles. The Act does not protect employees from their own miscon- duct even where union animus is present. See Badische Corporation, 254 NLRB 1195 at (1981). I am persuaded and find that Warren's discharge on September 18, 1980, was brought about by his having willfully and knowingly violated Respondent's safety 144 AMNOC() FAt3RICS COt). rules. Accordingly, I find no violation of Section 8(a)(4), (3), and (1) of the Act in his discharge. : Even if I were to have concluded in the instant case that a prima facie showing had been established by the General Counsel, the burden would have been shifted to Respondent in accordance with the principles of Wright Line, supra, to demonstrate Warren's discharge would have taken place even in the absence of union activity. I would find Respondent had satisfied that burden. The record evidence conclusively demonstrates that Re- spondent disciplined employees before and after it exer- cised discipline against Warren for violating safety rules. For example. Respondent discharged employee J. A. Rollan in September 1977 for violating plant safety rules in that he was blowing off his clothing with an airhose. Respondent warned employee J. A. White in February 1977 for operating an airhose without goggles for eye protection. Respondent discharged Allen Hollis in Feb- ruary 1979 for committing an unsafe act. Respondent warned and suspended employee William Miller in Sep- tember 1979 for committing an unsafe act. Respondent issued a warning and suspension to employee Phillip W. Lynch on March 4, 1980, for committing an unsafe act. Respondent issued a warning to employee Myrtle Bryant on July 17, 1980, for committing an unsafe act. And, em- ployees Collis Roundtree and Ulysses Geer were issued warnings in September and October 1980, respectively. for using an airhose without wearing safety goggles. Warren's testimony that fellow employee Richard Brady was using an airhose without goggles fails to establish Respondent was aware of Brady's conduct even assum- ing, arguendo, it took place. I am therefore persuaded that even if the General Counsel had met his burden of establishing a prima Jacie case. Respondent met its burden of showing the discharge would have taken place even in the absence of the protected conduct of Warren. Therefore, based on the foregoing and considering the record as a whole, I am persuaded that the complaint with respect to the unlawful discharge of employee Warren must he dismissed in its entirety. B. The Alleged I'iolations in Case 10-C.4-15752' I. Alleged interrogation The General Counsel alleges in paragraph 7 of the complaint in Case 10-CA-15752 that on or about speci- fied dates between March 17 and 31, 1980, in and about the vicinity of its plant, Respondent by its supervisors and agents Employment Manager Gene Shearl, Finishing Process Control Engineer James Beck, and Process Con- trol Engineer J. C. Dixon interrogated its employees concerning their union membership, activities. and de- sires in violation of Section 8(a)(1) of the Act. Counsel for the General Counsel relied on the testimo- ny of employees Rudolph Lovett, Fred L. Mikell, and " I finld insufficitnl eidenci r in his record to supportl . findilIg Ihai Respondentl' lis chalrge of .larrell mnes n ,ltls tjcd bs his hax ille ltci i tesimons toi the Itniard nl Case I CA 157'2 Ihe ,)ll .s .idecrl. ·e inl thal respect was halil ' arrcn had bhcn l nillnned is .1 a s is rininillj(e iIn lIhal .olln plainl " For nxt inlls ' rCasll ' 111 all orpornition, of pairaigralphlr 1 4. 14 ;1). 111d I8 of Cb ,i'e 10) ( 15 752 11:l bheen co*' ertcd nopnral IlaIt'r . isc 1() {. ' Ith~2Q Donald Dean Tidwell to establish the .iolations set forth above. Fred Mikell, an employee of Respondent, testified he became aware of the union campaign at Respondent in the middle of March 1980. Mikell testified he had two conversations with Employment Manager Shearl, the first of which took place in the middle of March during a conversation when no one else was present. Mikell tes- tified Shearl asked "had I heard anything about the Union trying to come in." No evidence was developed as to what, if anything, Mikell replied to Shearl. A second conversation took place between Shearl and Mikell in the latter part of March or first of April. Ac- cording to Mikell, this conversation took place in a hall- way at the plant in which Shearl asked Mikell "if I'd heard anything about the Union coming in." Mikell testified he and Shearl were longtime friends who had known each other since the eighth grade and had grown up and played together in a band. Mikell fur- ther testified his job brought him in contact with Shear] on a daily basis as he delivered mail at Respondent. Employment Manager Shearl was called to testify by Respondent. However, he did not testify with respect to the conversations attributed to him by employee Mikell. Mikell impressed me as a witness whose testimony w as worthy of belief. I therefore credit Mikell's uncontradict- ed testimony. Respondent correctly states that all interrogation of employees is not illegal per s'. Respondent contends that in applying the test set forth by the Second Circuit Court of Appeals in Bonnie Bourne. dh/ba Bourne v. ,NML.R.B.. 332 F.2d 47 at 48 (2d Cir. 1964), which test was adopted by the Fifth Circuit in Federal-Mogul Corpo- raturion v. .L.R.B., 566 F.2d 1245, 1250 (1978), that no violation herein should be found.d Respondent contends in light of the Fifth Circuit court test with respect to the instant allegation that there is no history of union animus on the part of Respondent at the time of the alleged il- terrogation; that there is no evidence Shearl was seeking information on which to base taking action against em- ployee Mikell; that Shearl and Mikell had knolwIn each other for an extended period of time and had an amica- ble relationship; that Shearl's position of employ ment manager posed no threat to Mikell: and that the conicer- sation 'was casual in nature-thus no violation. Respond- ent would then rely on the Board's holding in Pepsi-Cola Bottling Co. of Los .4ngeles, 211 NLRB 870 (1974), in which case the Board found an employer had not violat- ed the Act w-.hen its supervisor questioned an employee concerning the employee's union sentiments, where the supervisor and employee were on first-name basis. where it did not appear that the supervisor w as seeking infor- mation upon which to base taking action against the em- ployee, and ,shere the conversation was casual, informal, and occurred in an amicable atmosphere, and swhere the incident V.is isolated and innoiciuous ill nature I coliclude and find the interrogalion \swhich took place herein had no legitim;late purpose and \as riot acconlpa- nied hbs Iny assurallce against reprisals and as such 0io- lated Section 8(a)( 1) of the Act, nots, ithstanding c\ i- denLce the 1ensuilig discussioll took place inl a friendly at- 345 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mosphere where the supervisor and employee worked together in a close and amicable relationship. See Erie Technological Products, Inlc., 218 NLRB 878 (1975), and Mayfields Dairy lFarms, Inc., 225 NLRB 1017 (1976). 1 therefore find Respondent violated Section 8(a)(1) of the Act as alleged in paragraph 7 of the complaint in Case 10-CA-15752 with respect to Employment Manager Shearl. Donald Tidwell testified he had worked for Respond- ent from May 1972 until June 1980 as a loom fixer under the supervision of Collis Adams. Tidwell testified fellow employee Warren had approached him in the latter part of September 1979 and inquired if he would be interested in starting a campaign for the Union at Respondent. Tid- well stated that Finishing Process Control Engineer Beck on March 28, 1980, asked him while he was alone in the break area, "Have you heard any rumors lately?" Tidwell told Beck he had not, that things were pretty quiet. According to Tidwell, Beck stated at that point: "Donald, you all are not fixing to bring a union on us .... " Tidwell responded he had not heard any more talk about a union than normal. According to Tidwell. the conversation lasted awhile longer, but he did not recall particulars. '" I credit the uncontradicted and undenied testimony of Tidwell with respect to his March 28, 1980, conversation with Finishing Process Control Engineer Beck. I con- clude and find that the interrogation of Tidwell by Beck served no legitimate purpose and was not accompanied by any assurance against reprisals and as such constituted a violation of Section 8(a)(1) of the Act. With respect to the allegation that Process Control Engineer J. C. Dixon interrogated employees concerning their union membership, activities, and desires on March 31, 1980, the General Counsel did not contend that anv particular employee's testimony supported that allegation of paragraph 7. However. I shall consider the testimony of employees Hughes and Gardner with respect to this allegation of paragraph 7, and shall consider it along with the testimony in support of paragraphs 10, 11, and 12 of the instant complaint, which paragraphs shall be treated infrl. 2. Alleged threats of loss of benefits The General Counsel alleges at paragraph 8 of the complaint in Case 10-CA-15752 that Respondent acting through Finishing Process Control Engineer Beck on or about March 26, 1980, in and about the vicinity of its plant, threatened its employees with loss of benefits if they joined or engaged in activities on behalf of the Union. Counsel for the General Counsel relied on the testimo- ny of employee Rudolph Lovett to support this com- plaint allegation. Additionally, as indicated, supra, I shall consider herein whether Respondent interrogated Lovett or any other employee in the conversation. Employee Lovett testified he had a conversation with Finishing Process Control Engineer Beck sometime near ' Ih lc allecged ctmi~ craIlliol hbc ccel ili nihing Pi'oxos C'olllrol l (rlugl nrccr ecl k illld Cellploscc I octil %kill he dlsLcu,',d ulider ihc .allcgailons ot par 8 set forlh in/fru April 4, 1980. Carlton Brady and Charles Rice, two em- ployee electricians, were also present. Lovett testified Brady asked Beck what he, Beck, thought of the Union. Lovett stated Beck replied, "I'm glad you asked me," and jumped off a table he was sitting on and began "prancing" the floor. According to Lovett, Beck stated, "These people are ignorant. They don't know what they're getting into, said they're going to lose their bene- fits or the park, have their wages cut back to the maxi- mum [sic] wages. They'll lose their insurance and retire- ment plan." Lovett testified Beck "went on with a whole mess of it. I don't remember everything he said." Lovett asked Beck if he had ever worked under a union and Beck said he had not and hoped he never did. Lovett told Beck he had worked under a union all his life and he had never been treated as badly as he had in the spot he was presently working in. Carlton Brady was called by Respondent and testified he had worked for Respondent for the past 2 years as an electrician. Brady was present on April 4, 1980, along with employees Charles Rice and Rudolph Lovett when he, Brady, asked Finishing Process Control Engineer Beck what he, Beck, thought about the Union. Brady testified Beck responded, "he didn't think we needed the Union-that if the Union was voted in, that all your rights would have to be renegotiated-like the vacations, holiday pay and stuff like that." Brady also stated Beck said employees "could lose their benefits," but did not say that they would lose them. Brady denied Beck said the employees were ignorant, did not know what they were getting into, or that they would have their benefits taken or wages cut or lose their insurance or retirement. Brady further testified Beck said "you could lose your- you couldn't go to your supervisor, maybe, like you could now. If you had a gripe or something, that you could go to a union steward or something and they would do it for you." According to Brady, Beck further stated "Once a union came in that a contract had to be negotiated with the union-with the company, and that you could-there have been cases where employees have lost more than they gained." Charles Rice was called by Respondent and testified he was a 12-year employee of Respondent currently em- ployed as an electrician. Rice was present on April 4 when a conversation ensued among employees Brady, Lovett, Finishing Process Control Engineer Beck, and himself. Rice testified Brady asked Beck what he thought about a union. According to Rice. Beck replied that he felt the employee's pay and benefits were in comparison with everyone else's and he really did not feel a need for the Union. Rice testified Beck said "that we could lose benefits during negotiations. He mentioned that we may lose some benefits through negotiations with the Union for a contract." Rice denied Beck ever at any point stated employees swould absolutely lose benefits. Rice further denied Beck said employees would absolutely lose benefits. Rice further denied Beck said employees were ignorant. that they did not know what they were getting into. or that they were going to lose their bene- fits, or have their wages cut or lose their insurance arid retirement plan. Rice testified Beck said, once a union 346 AMOCO FABRICS CO was voted in, they would have to negotiate with the union for any benefits that the employees may receive. Rice did not recall the subject matter of taking problems to supervisors as having been discussed. Rice did not recall Lovett asking Beck if he had ever worked for a union. Finishing Process Control Engineer Beck testified he observed electricians Brady and Rice as they were work- ing on a microprocessor at Respondent's plant on March 21, 1980. Beck was in charge of the installation of the microprocessor. The processor had just been installed and for unexplained reasons it had broken down. Beck had asked lead electrician Brady to look at the proces- sor, and Brady had brought along with him fellow elec- trician Rice to try to ascertain why the microprocessor was not working. Beck testified that while they were going through the check list trying to get the processor to operate, Brady stated talking with him about going fishing in Florida and various other subjects, and then Brady asked Beck what he thought about the Union. Beck told Brady he did not think very much of it at this time; he felt Respondent's plant was above average in pay, the fringe benefits were better than plants around them, and he had friends in other areas who worked with mills of which their pay was not as good as those at Respondent. Beck testified Lovett was present during the conversa- tion, but he did not say anything to Lovett. According to Beck, Lovett stated he once belonged to a union and enjoyed working for a union. Beck testified Lovett did say he was dissatisfied with Respondent's policy of not promoting from within but rather hiring people from the outside. According to Beck, Lovett said he did not enjoy working for management-trainee Ronnie Hester. Beck had previously placed Hester in charge of Lovett for a period of time. According to Beck, Lovett stated he did not like working for Hester because of racial consider- ations. Beck testified Lovett further stated that he, Beck, should not have the job he had because he lived in Val- dosta, Georgia, and they should have hired someone in the local area of Respondent to fill the job Beck had. According to Beck, the machine began to operate and he returned to his office. I credit the testimony of Brady and Rice with respect to the above conversation. Each impressed me as truthful witnesses with no apparent motivation for telling other than the truth. Finishing Process Control Enginer Beck's testimony is essentially in line with that of Brady and Rice. 1 specifically discredit any testimony of Lovett which is contradicted or unsubstantiated by the testimo- ny of Brady and Rice with respect to the conversation set forth above. More particularly, I specifically discredit the testimony of Lovett wherein he claimed Beck told him the employees were ignorant, were going to lose their benefits, their wages would be cut back to the maximum wages, and they would lose their insurance and retirement plans. Lovett impressed me as a very angry and hostile witness who would enhance or modifv his testimony in any manner he might deem helpful to his own personal interests in the case. I have concluded and find that the statements attribut- ed to Beck by Brady and Rice whert considered in the overall context in which they were made did not exceed the point of informing employees of the fact that in the give-and-take of negotiations they could lose benefits. Respondent through Beck did nothing more than merely explain the collective-bargaining process to employees and as such did not create a threat of a loss of existing benefits if the employees chose the Union. I am persuad- ed that in the context of this case Beck on behalf of Re- spondent was only communicating to employees that any reduction in wages or benefits would occur only as a result of the normal give and take of negotiations. It is permissible to inform employees of the realities of collec- tive bargaining which include the possibility that the union in order to secure some benefits might trade away some existing benefits. See Tufts Brothers. Incorporated, 235 NLRB 808 (1978). I therefore recommend that para- graph 8 of Case 10-CA-15752 be dismissed in its entire- ty. '6 3. Alleged threats of plant closure The General Counsel at paragraph 9 of the complaint in Case 10-CA-15752 alleges Respondent acting through Weaving Room Supervisor Marlin McClellan and Super- visor E. L. Nelson on or about March 31, 1980, in and about the vicinity of Respondent's plant, threatened its employees it would close its plant if the employees joined or engaged in activities on behalf of the Union. Counsel for the General Counsel relies on the testimo- ny of employees James O. Bonham and Ronnie Bennett to establish the alleged violations. James 0. Bonham testified he was currently employed by Respondent and became aware of a campaign on behalf of the Union at Respondent at the end of March 1980. Bonham stated he had a conversation with his su- pervisor. E. L. Nelson, about the Union at the last of March 1980. Bonham testified the conversation took place the day after the first handbills or leaflets were passed out for the Union. The conversation took place in the supply room at Respondent in the presence of supply room clerk Harry Harper. Bonham testified he ap- proached the supply room at approximately 7:30 p.m on the last of March and informed supply room clerk Harper of the parts he needed. According to Bonham, supply room clerk Harper asked Supervisor Nelson if he were going to walk the picket lines with them. Accord- ing to Bonham, Supervisor Nelson replied he was not, that regardless of whether they shut the plant down or not he would be paid. According to Bonham, supply room clerk Harper then asked Supervisor Nelson, "You mean they are going to shut the plant down?" Harper "' I c ancludt' and find no redihble e'idence to support any allegatlon of a Niollrllatin f the Act as alleged in par 7 of the complaint With respect Ito Fi,,lshi ng 'rocess ConIrol tngineer Beck as it relates to his conlera- tlon u ilh Rt iscti. Rice, and Brady near Ihe end of March or firt of April 1980 In con,,lidridng the conment atllrlbuled to Beck by Brad. "yu couldn't go Io !,our ,uperissor, matnhc, like onu could nou. If s)on had a gripe or snorticthng. Ihat o.n could go to a union ste ard or something and ,the coulJl do it foir sonu" (emnpha;sis upplied). i conclude and find this .oilllilli ii far Io,1 \agill to ha',e all fndintllg ol a threat that cniplio - tcs 0'uld lot Ii.he righi to go diretlls to maniagelllCenl Although [here ssas III illegaitionl of this ilatulr lie i the ri plaiillt, I finld the tctinirli I> he (to .iihIbl2iols tor support .aii 1aiol.it l i t if tli A.L 347 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asked Nelson what he was going to do if all the mechan- ics walked out. According to Bonham, Nelson respond- ed, "The same thing we're going to do if the Union comes in. Shut it down and board it up like they did the mill in Canada." Bonham then asked Supervisor Nelson if Respondent had shut a mill down in Canada. Supervi- sor Nelson responded "yes," that a union tried to get in and they shut it down and boarded it up until the em- ployees decided they needed to work and then opened the mill back up. Bonham testified Supervisor Nelson said there was no union at the plant in Canada at the present time. Bonham testified he told Nelson he did not see how Respondent could afford to do that. Nelson al- legedly replied to Bonham that that was what Respond- ent had informed him, that before they would let a union come in they would shut it down. I credit the testimony of Bonham and conclude and find the statements made to Bonham in the presence of fellow employee Harper by Supervisor Nelson constitut- ed a threat that Respondent would close its plant if the employees joined or engaged in activities on behalf of the Union. Employee Ronnie Bennett testified that, after he had completed passing out union leaflets at the plant on March 31, 1980, he went into the plant and Weave Room Supervisor Marlin McClellan had a conversation with him. McClellan asked Bennett if all the people were still out on the road when he came into work. Bennett told McClellan they were. Bennett testified McClellan told him that somebody had recognized a bunch of people off the day shift, and then turned toward Bennett and said, "You know, they're going to close this place down, don't you?" Bennett responded "yeah," turned and walked off. Weave Room Supervisor McClellan's job duties had changed so that at the time of the hearing he was the customer service representative for Respondent. Howev- er, at all times material herein, McClellan was the weave room supervisor on the 12 midnight to 8 a m. shift. Mc- Clellan testified he came to work on the evening of March 30, 1980, at approximately 10:30 p.m. McClellan explained it was not unusual for him to report at 10:30 p.m. for a midnight shift because the day before had been a down day and he wanted to walk the job to check the equipment before the employees arrived. Mc- Clellan had a conversation with loom fixer Ronnie Ben- nett just prior to the midnight shift change. McClellan stated he was again walking the job to insure that all the looms were covered by regular as well as support per- sonnel. As he was making his rounds, employee Bennett walked toward him and then made some reference to what was going on outside the plant. McClellan com- mented to Bennett, "I said, yeah, I hope they come on in and don't try to close the shift down-and went on. That was the extent of the conversation." McClellan testified the conversation lasted approximately 30 seconds and he had no other conversation with Bennett that night other than regular duty-type conversations and comments Mc- Clellan stated he did not discuss the Union or the leaflets being passed out with Ronnie Bennett. Further, McClel- lan denied telling Bennett they were going to shut the place down. The only two witnesses to this brief 30-second conver- sation tell very similar but slightly different versions of the conversation. There is no question but what employ- ees were handbilling on behalf of the Union at the plant entrance on the date in question-the date itself being either just prior to midnight on March 30 or just after midnight on March 31, 1980. The conversation, after carefully observing both witnesses, appears to have been one of a concerned employee as to what would take place and a concerned low- level supervisor with wheth- er the particular part of the shift he was responsible for would function that night. The comment attributed to McClellan by Bennett, "you know, they are going to close this place down, don't you," even if said, would have to be viewed in the context of the conversation in which it arose. Two equally valid interpretations could be placed on the comment: (I) that union efforts would cause the plant to be closed down; or (2) employees stay- ing at the entrance and picketing would not be available for work and thus close the shift down. McClellan im- pressed me as a conscientious individual who came to his employment an hour and a half ahead of schedule to as- certain that the machines and equipment, for the portion of the work on the shift he was on, were prepared and ready for employees. Further, McClellan's check through at the very beginning of the shift to insure em- ployees were working on each of the machines he was responsible for convinces me and, accordingly, I find that McClellan's account of the conversation is more probable, reliable, and trustworthy. As such, I credit his testimony with respect thereto. Accordingly, I therefore recommend that portion of complaint paragraph 9 of Case 10-CA-15752, which alleges Respondent through Weave Room Supervisor McClellan threatened its em- ployees the plant would close if they joined or engaged in activities on behalf of the Union, be dismissed in its entirety. 4. Alleged unlawful no-solicitation, no-distribution rule and alleged confiscation of a union-related petition The General Counsel at paragraphs 10, 11, and 12 of the complaint in Case 10-CA-15752 alleges that on or about March 31, 1980, Respondent promulgated, main- tained, and enforced a rule prohibiting any union-related solicitation and distribution by its employees on Re- spondent's property; and that by promulgating, maintain- ing, and enforcing the rule, it prohibited its employees from soliciting their fellow employees during nonwork- ing time to join or support the Union, and prohibited em- ployees from distributing union leaflets to their fellow employees during nonwork time in nonwork areas. Para- graph 12 alleges Respondent by its supervisor and agent, Process Control Engineer Dixon, on or about March 31, 1980, confiscated in violation of Section 8(a)(1) of the Act a petition being circulated among its employees w hich protested the discharge of one of its employees. Counsel for the General Counsel relies on the testimo- ny of employees Marie Hughes and Peggy Gardner to establish the alleged violations. 348 AN()C() FABRICS C)O. Marie Hughes, a weaver at Respondent's plant, became aware of a union campaign at Respondent at the last of March 1980. Hughes testified that at a union meet- ing on March 30). 1980, employees discussed circulating a petition on behalf of fellow employee Pat Warren pro- testing his discharge as being unfair. Hughes and fellow employee Peggy Gardner volunteered to obtain signa- tures from employees on the petition on the shift they worked on. On March 31. 1980, Hughes and Gardner proceeded to Respondent's premises at approximately 30 minutes prior to the commencement of their shift, Upon their arrival at Respondent's plant, Hughes and Gardner obtained the petition they utilized from a fellow employ- ee, Steve O'Neal, and proceeded to the porch area lead- ing into Respondent's plant. Hughes testified employees gathered on the porch prior to clocking in for work. Hughes and Gardner commenced obtaining signatures on the petition protesting employee Warren's discharge; and, after obtaining three or four signatures, Process Control Engineer J. C. Dixon and Tommy Hogan, who apparently was an acting substitute supervisor, appeared on the porch where the employees were. Hughes testi- fied Process Control Engineer Dixon reached over and took the petition from them, Hughes attempted to get the petition back, but Dixon would not give it back to her. Hughes protested that the petition was the employ- ees' and they wanted it back. Hughes testified Dixon asked whose petition it was, and she told him everyone who had signed it. Dixon then asked who 'was passing the petition around. Hughes testified she and Gardner just looked at each other and at that point Dixon took them to Weaving Superintendent Lewis' office. Dixon left Lewis' office with the petition to take it to Employ- ee Relations Manager James Sego. Process Control Engineer Dixon and Weaving Super- intendent Lewis returned to Lewis' office where Hughes and Gardner were waiting and wanted to know about the petition which was being passed around. Weaving Superintendent Lewis stated he was going to Employee Relations Manager Sego's office to find out about the pe- tition. Hughes told Lewis she would tell him about the petition, that it was on behalf of Pat Warren, that the employees felt Warren had been fired unfairly, they wanted Warren put back to work. According to Hughes, she and Gardner were told they could not do this by Weaving Superintendent Lewis. According to Hughes, Lewis stated he would not talk about Warren's problems with Gardner and was not going to talk to Warren about Gardner's problems. Hughes testified Lewis left the office and Dixon then stated they could not pass around the petition or obtain signatures because it was "in the manual we couldn't do things like that." Hughes stated she had never seen any such manual. Gardner accused Dixon of changing the rules so often the employees did not know what really constituted the rules. After a short period of time, Dixon informed Hughes and Gardner to go to work and he would get back to them. Hughes tes- tified she never after that time saw the petition again. Hughes did not know the exact number of employees who had signed the petition. but she stated the front page of the petition had two full columns of signatures. Hughes acknowledged that from time to time Re- spondent posted rules on its bulletin board and one of those posted rules concerned solicitation and distribution indicating it was prohibited on Respondent's time. 7 Employee Gardner corroborated the testimony of Hughes in all essential aspects. Process Control Engineer Dixon testified that on March 31, 1980, at approximately 7:40 a.m. he observed individuals circulating a piece of paper on the porch out- side the weave room. Dixon wanted to find out what was going on. He testified an individual would sign the piece of paper, pass it to another, they would sign it and pass it on. Dixon testified he put his hand out as the paper was being passed along and it was given to him. Dixon read the paper and asked who was responsible for passing it around. He testified Gardner and Hughes stated they were responsible. He took them to Weaving Superintendent Lewis' office. Dixon testified he took the petition to Employee Relations Manager Sego's office. Dixon returned to where Hughes and Gardner were after talking with Sego and told Hughes and Gardner to report to work. Dixon stated that one of the employees, either Hughes or Gardner, asked if they could have the petition back, and he told them it would be given back to them if possible. According to Dixon, there were no further discussions with respect to the petition. Weaving Superintendent Lewis testified he discussed the petition being circulated with employees Hughes and Gardner in his office. Lewis told the two employees he did not know for sure what, if any, disciplinary action should be taken with respect to their having circulated the petition for signatures, but he would check it out and get back to them. Lewis testified he had no further dis- cussion with either Hughes or Gardner thereafter. Lewis testified that when he first met with Gardner and Hughes on the morning of March 31, 1980, he was in a hurry to catch an airplane out of town and that he took just a few minutes with them in his office and explained to them "that we had never allowed any kind of solicita- tion on company property." Lewis testified he found out from Employee Relations Manager Sego that what the employees were doing was part of a collective-bargain- ing procedure and was protected. There was nothing Re- spondent could do. Lewis stated that, as a result of what Sego told him, he allowed the two employees to proceed to work. The Respondent contends that although it could be argued its agents "acted hastily when they took posses- sion of the petition," it was obvious no malice or unlaw- ful activity was contemplated by Respondent when it seized the petition. Respondent also contends the action of seizing the petition really accelerated the realization of the ultimate goal of the petition, which was having em- ployee Warren's discharge reviewed. Respondent argued in brief: "This single, arguable violation, when viewed in the terms of an organizing campaign that lasted over a 1 Respondenl introduced at the hearing a, Resp Exh 17 , hai pur- porled to he the plant rules Rules 12 and 13 prohibiied D)istribution of literature of any kind in ssork areas, solicitatirn of any kind during the emplosyee's ork time or in such a manner as to interfere ith the .ork of others 349 DiCISI()NS ()F NAI()IONAL I A)OR REIATI()NS BOARD period of six months, did not result in the discipline of any of the employees involved and accomplished the ob- jective of the petition. This incident is insufficient to hold that Respondent's valid no-solicitation rule was en- forced in a disparate manner." The events surrounding the circulating of the petition on March 31, 1980, by the employees who were solicit- ing signatures thereon and Respondent's subsequent seiz- ing of the petition are for the greater part undisputed. At any place there exists any conflict, I credit the testimony of Hughes and Gardner, particularly that of employee Hughes, as being the most accurate and trustworthy. A somewhat limited but rather succinct statement of the legality of no-solicitation and no-distribution rules is set forth in Newport News Shipbuilding and Dry Dock Corporation, 233 NLRB 1443, 1450 (1977), wherein it is recognized that the legality of no-solicitation and no-dis- tribution rules has been the subject of extensive Board and court litigation since the Supreme Court's landmark decision in N.L.R.B. v. Republic Aviation Corporation, 324 U.S. 793 (1945). Stoddard-Quirk Manufacturing Com- pany, 138 NLRB 615 (1962), is probably the case cited most often by the Board with respect to no-solicitation, no-distribution rules. In Stoddard-Quirk, supra, the Board enunciated a rule respecting oral solicitation, wshich simply stated is that an employee has the right to solicit on plant premises subject to the restriction that solicita- tion may be restricted to nonworking periods. With re- spect to the distribution of literature, the same restriction applies with the further limitation that distribution of lit- erature may be lawfully limited to nonworking areas of the plant. Any plant rule which would further limit or proscribe solicitation or distribution would be presump- tively invalid. In the instant case employees were passing around a petition and soliciting signatures on it to protest the discharge of a fellow employee. The evidence is un- refuted that the circulation of the petition and the solicit- ing of the signatures took place on the porch which led into the weave room, an area which is clearly a non- working area, and the activity took place at a time which was clearly a nonworking time. Respondent through Dixon and with the approval of Lewis told the employees they were prohibited from doing such, that is, they were prohibited from passing around a petition and soliciting signatures in a nonwork area at a nonwork time at Respondent. It would be difficult to conceive of a broader prohibition against solicitation and distribution. See FMC Corporation, 211 NLRB 770 (1974). I therefore conclude and find Respondent violated Section 8(a)(l) of the Act when, on March 31, 1980, it orally promulgated, maintained, and enforced a rule prohibiting any union-re- lated solicitation and distribution on its property, and by doing so it prohibited employees from soliciting their fellow employees during nonworking time to join or sup- port the Union and prohibited its employees from distrib- uting leaflets to fellow employees during nonworking time and in nonworking areas. I reject Respondent's contention that what transpired in the instant case was an insufficient incident of dispa- rate enforcement of a valid no-solicitation rule. The evi- dence is clear in the instant case that it is not a situation of disparate enforcement of a valid no-solicitation rule, but rather is the promulgation of a new rule by Respond- ent through its agents and supervisors, Dixon and Lewis, and as such the March 31, 1980, announcement replaced Respondent's previous rule. I further conclude and find Respondent's acknowl- edged confiscation of the petition in the circumstances of this case constituted interference in violation of Section 8(a)(l) of the Act as alleged at paragraph 12 of the com- plaint in Case 10-CA-15752. Additionally, Process Con- trol Engineer Dixon's inquiry of employees Hughes and Gardner as to who was circulating the petition and who had signed it constituted interrogation in violation of Section 8(a)(l) of the Act as alleged at paragraph 7 of the complaint in Case 10-CA-15752. 5. The warning and subsequent suspension of employee Rudolph Lovett The General Counsel alleges at paragraphs 17 and 19 of the complaint in Case 10-CA-15752 that Respondent issued a warning to its employee Lovett on or about April 4, 1980, and from on or about April 29 to May 1, 1980, Respondent suspended its employee Lovett because of his membership in and activities on behalf of the Union and because he engaged in concerted protected activity. The General Counsel also alleges at paragraph 13 of the complaint in Case 10-CA-15752 that Respond- ent, acting through Finishing Superintendent Hodges, had threatened employees with discharge and other re- prisals if they joined or engaged in activities on behalf of the Union. Inasmuch as the General Counsel relies on the testimony of employee Lovett to establish the viola- tions set forth, I shall consider each of the above allega- tions together. Employee Lovett, a chemical mixer for Respondent, worked under the supervision of Finishing Process Con- trol Engineer Beck. Lovett became aware of the union campaign at Respondent sometime in March 1980. Thereafter, Lovett signed a union card, attended five of six union meetings, gave out a few handbills on behalf of the Union, talked it up in the parking lot, and wore a union button which stated "Amalgamated Clothing and Textile Workers Union, ACTWU, Union Committee." Lovett's name appeared on a leaflet used as a handbill for the Union. According to fellow employee Tidwell, April 16, 1980, was the first time the handbill (G.C. Exh. 3) was passed out. Lovett testified with respect to a conversation among employees Brady and Rice, Finishing Process Control Engineer Beck, and himself on April 4. As is set forth earlier in this Decision, Lovett's testimony with respect to portions of that conversation was not credited. Lovett testified that on April 25, 1980, Finishing Su- perintendent Hodges and Finishing Process Control En- gineer Beck came to where Lovett was working. Ac- cording to Lovett, he "was working toting stuff up a set of stairs about 17 high, had a bucket to put in the mix. As I sent by a black man named Leonard Crappes, I said there's going to be a meeting in Adel Tuesday night." Lovett testified he told Crappes this because Crappes had been asking him about it. Lovett further testified: .350() AMNOCO FAHRICS CO. Q. [By counsel for the General Counsel]: \What happened next? A. I got the stuff and went on back downstairs and come back down to get another bucket and Hodges had him all hugged up. Q. Had who hugged up9 A. Leonard Crappes. Q. Was that unusual'? A. Very unusual to me. Q. Why was this so unusual'" A. Because Leonard is black, and Harold don't talk to nobody in that manner. Q. What happened next? Had you ever seen Hodges talking to Crappes before? A. Never. Lovett returned to his job upstairs. He testified he again observed Finishing Superintendent Hodges with his arm around the neck of employee Crappes. Sometime during the day, Finishing Process Control Engineer Beck told Lovett they were going to give him a warning for pres- suring a coworker during working hours about a union. Lovett was taken to an office where Beck and Finishing Superintendent Hodges were and "they told me what they had to do and what I had been doing-asked me did I have anything to say, and I told them no, unless you make me mad I might say something-two or three words. I don't remember the exact words but I just pointed at my badge and said that's what's causing it all, and you know it." According to Lovett, he was wearing a union button at the time. Following this incident, Lovett received yet another warning and, although he did not remember the exact time, he believed it was around April 28, 1980. This warning was for not clocking out at a time when his timecard was missing, according to Lovett. On April 28, 1980, Lovett proceeded to the timeclock rack where there were 80 or 90 cards of which his card had always been on top, or at least one or two from the top, behind alphabetical letters. Lovett reached for his timecard, but it was gone. According to Lovett, Finishing Process Control Engineer Beck was leaning up against a rail which separated the timeclock from another area; and, after Lovett looked and looked for his timecard with people pushing him, he turned to Beck and asked if Beck had his timecard. Beck responded he did not. Lovett asked Beck what he had done with his timecard; Beck responded it was where it belonged. Lovett asked Beck where he put it, and Beck responded, "What do you think I've got, a photostatic mind?" Lovett then told Beck he could get his, Lovett's, card and mark it when he picked them up, that he was leaving. Lovett testified he came around the rail where Finishing Process Control Engineer Beck was, and as he did he told Beck his card belonged between Joe Lloyd and Joe Ames. Lovett testi- fied Beck told him it was not there, that Lovett's name was not at that place. Lovett stated, "I just walked out the door and went home." Lovett reported to work on the following Monday and found his timecard in the usual place between Joe Lloyd and Joe Ames and, according to Lovett, the cards were filed alphabetically. Lovett inquired of an ex-super- visor, Sue Williams, about the cards because he knew she used to arrange the cards. According to Lovett, Williams was able to pull his card out without looking, that she knew precisely where it was, between Lloyd and Ames. Lovett testified Beck came by where he was and he asked Beck if he had found his timecard. Beck told Lov ett his card had been in the bottom right-hand corner where it always belonged. Lovett testified his card had never been in the bottom right-hand corner in the 11 years he had worked there. Beck showed Lovett where he found the card. Lovett told Beck someone had put the card in the slot under where his name appeared. Lovett testified his name was under the slot, but it had never been there before. The next day, Tuesday,. at approximately 4 p.m., Lovett testified he was called apparently into Finishing Process Control Engineer Beck's office where he was told he was being given 3 days off for walking out and leaving his timecard unpunched. Lovett told Beck that, if that was what he had to do, to do it, it was his job. Beck told Lovett he already had the suspension written out. According to Lovett, he was then told to go to Em- ployee Relations Manager Sego's office where he and Sego talked about the suspension for a while. Lovett tes- tified Sego said he would try to get the 3 days back Lovett was going to lose. Lovett stated, "We argued around there for a while," and he told Sego it was his union badge that had done him in. Sego responded no, that wearing the union badge was Lovett's privilege. Lovett testified that Employee Relations Manager Sego looked through his file at the time and told him it was "as good a record as he had ever seen." Lovett respond- ed to Sego by saying it was funny he would go this length of time without a warning and then get a warning and a 3-day suspension in approximately 2 weeks' time. Lovett testified he had never received any warnings or reprimands prior to the two in question. On cross-examination Lovett stated his timecard had not been in the timecard rack on several occasions. Lovett also acknowledged that various people were re- sponsible for taking the timecards from the rack, making the necessary notations thereon, and replacing them back in the rack. For example, he testified this had been done by Sue Williams, Virginia Fender, Ronnie Hester, Jim Beck, and "a bunch of them down there." Lovett also testified on cross-examination that, on the occasion in question, when he could not find his timecard, he just threw up his hands and walked out. Lovett denied he was suspended for threatening to do physical harm to Finishing Superintendent Hodges and Finishing Process Control Engineer Beck, but rather stated his suspension was for not punching the timecard. Lovett acknowl- edged he did not read the warning, but stated the warn- ing was read to him by Beck and there was no mention of physical harm in it. Lovett acknowledged he may have admitted to Employee Relations Manager Sego he had made threats to Hodges and Beck inasmuch as Sego made him "pretty mad." Lovett admitted telling Finish- ing Superintendent Hodges, while kidding around with him, "I said he was going to keep picking on me until I 151 DI)E CISI()NS ()1: NATI()ONAL I ABOR REI.A I-I()NS BOARD was going to bruise him up so bad he would have to wear a sack over his head." Finishing Superintendent Hodges testified that in early April 1980 he was making a routine tour of his depart- ment and in doing so he passed employee Leonard Crappes' work station and as he did Crappes asked Hodges to speak with him. Crappes told Hodges employ- ees Lovett had been bothering him on his job while he was at his work station performing his work--wanting him to attend union meetings. Crappes told Hodges he did not want to be bothered by Rudolph Lovett. Crappes told Hodges that Lovett said if he Crappes, did not come to the meetings, the Union would come to his house. Hodges testified Crappes informed him that this had happened three or four times before and he wvanted it stopped. The same day of the conversation with Crappes, Hodges discussed the matter with Lovett's immediate su- pervisor, Finishing Process Control Engineer Beck. Hodges testified Lovett was then brought to an office where Beck gave him a warning for bothering fellow employee Crappes while he was performing his job. Hodges testified Lovett refused to sign the warning so he, Hodges, signed it as a witness. Lovett then told Hodges that the first time he saw Hodges down in Lo- vett's department he knew he would try to run him off. Lovett told Hodges he wanted him to come to his house. Hodges told him he would talk to him, but he did not feel like he would do so under those circumstances. Lovett then asked Hodges where he lived and told him he would come to his house. Hodges told Lovett it was no secret where he lived. As Lovett walked out of the office, he said to Hodges, "just tell me where you live, I'll be there." Hodges asked Lovett if he meant that as a threat. Lovett responded no, he just wanted to talk with him. Leonard Crappes testified he was an operator helper on the J box in the finishing department and as such worked near employee Lovett. Crappes has been em- ployed by Respondent for 10 years. Crappes testified he spoke with Finishing Superintendent Hodges about em- ployee Lovett bothering him on the job. Crappes asked Hodges to have Lovett stop bugging him about the Union while he was working because "I couldn't do my work for him." Crappes testified Lovett had been bug- ging him for 6 or 7 weeks about signing a card for the Union. Crappes acknowledged on cross-examination by the General Counsel that he considered Lovett to be a can- tankerous, unfriendly individual. Crappes testified Hodges did not have his arm around him nor did he touch him during the conversation. Crappes stated he could not even do his work when Lovett was around him because Lovett would bother him about the Union. Respondent contends employee Lovett interfered with the work of employee Crappes in violation of Respond- ent's work rules, as evidenced by a signed complaint of Crappes regarding the interference by Lovett, that Lovett had an opportunity to explain his conduct or rebut it, that he made no attempt to do so, and that an appropriate level of discipline was imposed in accord- ance with Respondent's established disciplinary policy. I credit the testimony of employee Crappes that he could not perform his work in the manner he had previ- ously been able to because of the constant "bugging" that Lovett inflicted on him. The real issue in this partic- ular incident is not whether Lovett had a right to solicit fellow employees. but rather whether Respondent may maintain order in the work of a fellow employee during worktime. I credit the testimony of Crappes as corrobo- rated by Hodges that it was Crappes who first went to Finishing Superintendent Hodges to complain of the work interference of Crappes by Lovett, and I specifical- ly discredit any testimony of Lovett to the contrary. 1The evidence is quite clear Respondent was merely following its established disciplinary procedure and practice with respect to employee Lovett. I therefore recommend dis- missal of that portion of the complaint in Case 10-CA- 15752 which alleges Respondent violated Section 8(a)(1) and (3) of the Act by issuing a warning to its employee Lovett on or about April 4, 1980. I shall also recommend dismissal of that portion of paragraph 13 of the complaint in Case 10-CA-15752 which alleges that Finishing Superintendent Hodges threatened employees with discharge if they engaged in activity on behalf of the Union inasmuch as there is no credited evidence on which to base such a finding. Finishing Process Control Engineer Beck testified that Respondent installed a new microprocessor in the middle of March 1980. Beck personally designed and purchased the microprocessor for Respondent in California. Beck testified that, since he had designed the microprocessor, it was decided he would be in charge of its operation. When he became in charge of the operation of the mi- croprocessor, the batch mixers at the plant came under his supervision. At the time the batch mixers came under his supervision, employee timecards were being taken from and placed back into the timecard rack slots by management trainee Ronnie Hester. On Friday, April 25, 1980, Hester had pulled the timecards from the timecard racks, had used Beck's desk to work on them, but, before he had an opportunity to replace them in the timecard racks, he was called away to attend a meeting. There- fore, Beck placed the cards back into the rack himself. Beck testified, and I credit his testimony, that he had never placed the timecards in the rack prior to that time. Beck testified he placed the cards in the rack at approxi- mately 3 p.m., and the timecards were placed back in the rack at the place where the employee's name appeared on the rack. Beck testified he placed Lovett's card right above where Lovett's name appeared. The shift on that day ended at approximately 4 p.m. After the employees clocked out, Beck collected the cards because Respond- ent was not scheduled to operate the facility on the next day, Saturday. Beck testified Lovett walked to the rack to obtain his timecard, turned around, looked at Beck, and asked where his card was. Beck told Lovett his card was in front of his name on the rack as was everyone else's card. Beck testified Lovett looked back at the rack, turned around and looked at Beck, threw his hands up in the air in disgust, did not say anything, turned and walked out. Beck testified Lovett only glanced at the 352 AMOCO FABRICS CO. timecards. Beck testified the 90 other employees check- ing out at that clock found their cards, clocked out, and left. Beck testified Lovett's card was in front of his name on the timecard rack when he (Beck) collected the time- cards. Beck took the cards to his immediate supervisor and explained to him what had happened with respect to Lovett and penciled in on Lovett's card the correct hours for Lovett. Beck walked through the department toward Lovett's area on the following Monday at approximately 11:30 a.m. Lovett walked up to him and asked him if he had found his timecard. Beck told Lovett he had, that it was in the slot where he had put it. Beck told Lovett he was in a hurry at that particular time but would speak with him later about the card. Later that afternoon Beck talked with Lovett in Beck's office about the timecard. Beck explained to Lovett he had placed the timecards in the rack, that it was the first time he had ever done so, and that he was very sorry for any confusion which might have resulted from the timecard situation. Beck testified Lovett was very upset and told him he did not believe him that he had just put his timecard somewhere else so as to aggra- vate him and create problems for him. Beck testified he tried to level with Lovett and explained to him he was sorry that it had happened and that in the future he would insure Lovett understood where the timecard would be. Lovett then told Beck "if I ever went crawl- ing through the area like a snake or something on the floor that he would stomp me to death and that one day Harold Hodges would be coming in shortly with a sack over his head because he would be bruised up so bad be- cause he was going to get him; that he was going to break both his bones-his arms and break both his legs." Beck testified Lovett was very upset both with him and with Hodges. Lovett told Beck he (Beck) did not de- serve his job, that he was a son-of-a-bitch, and that Re- spondent should promote people from within instead of hiring people like Beck from the outside. Lovett told Beck that James Sego would be hurt one day because he was walking around motel parking lots where he did not belong, that somebody was going to beat him up. Beck testified, "the main thing he kept stressing was the fact that he was going to do physical harm to me, and that he was going to do physical harm to my immediate su- pervisor, Harold Hodges." Beck said Lovett continued the conversation by talking about Leonard Crappes. Beck testified Lovett said "that Harold had made that nigger Crappes sign that paper because he was real close friends with him, and that he just-that Harold was really just pushing toward Crappes to get him just to sign the paper to give him a warning." According to Beck, as soon as Lovett completed that comment he left the office. Beck proceeded to discuss the matter with his supervi- sor, Hodges, telling Hodges what L ovett had said. The following day Hodges and Beck met with Em- ployee Relations Manager Sego, according to Beck, "be- cause I felt like that I had been threatened, and I felt like my supervisor had been threatened with physical vio- lence." Sego, Hodges, and Beck discussed the incident and decided to give Lovett a 3-day suspension because of the threats he had made to Beck and regarding Beck's supervisor, Hodges. That afternoon Lovett was given a 3-day suspension for threatening a supervisor. Respondent contends the suspension of Lovett from April 29 until May 1, 1980, resulted from his having threatened Finishing Process Control Engineer Beck and Finishing Superintendent Hodges with physical harm. Respondent contends the Board has consistently held that an employer has the right to maintain order and re- spect among its employees and to discipline employees for threatening violence against the employer or its em- ployees. The Respondent further contends there is no credible evidence Respondent had any knowledge of Lo- vett's union support other than Lovett's self-serving testi- mony that he wore a union button, which contention it argues was rebutted by the testimony of employees Outlaw, Ash, and Garrett, who each testified they knew Lovett, worked with him on a frequent or daily basis, and never saw him wear a union button. As such, the Respondent contends counsel for the General Counsel did not establish a prima facie case within the principles and guidelines spelled out in Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980). There can be no question but what Respondent knew Lovett favored unions inasmuch as Finishing Process Control Engineer Beck acknowledged employee Lovett told him on March 21, 1980, that he worked for a place which had a union and enjoyed working under a union. Further, Respondent was well aware Lovett was for the Union by April 4, 1980, inasmuch as Crappes' complaint to Finishing Superintendent Hodges was that Lovett was interfering with his work in an attempt to have him sup- port or join the Union. Respondent relied on this com- plaint of Crappes. I find it unnecessary to determine whether Lovett wore a union button on the two specific incidents herein, particularly on April 4, 1980, inasmuch as I find Respondent was fully aware of Lovett's union activity without having to rely on whether Lovett wore a union button or not. It is undisputed on this record that Lovett had worked for Respondent for 11-1/2 years without receiving warnings. Finishing Process Control Engineer Beck testified he thought Rudolph Lovett was a good employee, that he did him a very good job, that he worked every day, and very rarely did he have any problems with Lovett. As indicated elsewhere in this Decision, cases alleging 8(a)(3) violations, such as Lovett's suspension, wherein employer motivation is called in question, the Board in Wright Line, Inc., supra, stated: "First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a 'motivating factor' in the employer's decision. Once this is established, the burden will shift to the em- ployer to demonstrate that the same action would have taken place even in the absence of the protected con- duct." In the instant case, as it pertains to the suspension of Lovett, I find counsel for the General Counsel has es- tablished a prima faicie case. Respondent had knowledge of Lovett's union sympathies and, as is shown elsewhere in this Decision, Respondent demonstrated union animus; 353 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this taken in conjunction with Lovett's length of service as an acceptable employee without reprimand other than those discussed herein clearly supports an inference that protected conduct was a motivating factor in Respond- ent's decision to discipline Lovett. I find, however, that Respondent met its burden of demonstrating that the same action would have been taken against Lovett even in the absence of his protected conduct. I credit the testimony of Beck that Lovett was disci- plined for making threats of physical violence toward the persons of Beck and his immediate superior, Finishing Superintendent Hodges. As indicated elsewhere in this Decision, after careful observation and consideration of Lovett's testimony, I am persuaded his testimony where contradicted or unsubstantiated is unworthy of belief. Lovett acknowledged he may have admitted to Employ- ee Relations Manager Sego that he threatened Beck and Hodges with violence. The Act does not protect employ- ees from their own misconduct and insubordination. The Board, as noted supra, has frequently held that if an em- ployee provides an employer with sufficient cause for discharge or, as in this case, suspension for which he would have been terminated or suspended in any event, the employee's discharge or suspension cannot be held unlawful merely because the employee had previously engaged in union activity. The Respondent cannot be faulted for attempting as it were to "nip in the bud" such potential violence by a person who has expressed an in- clination towards it. See Acrylic Optics Corporation, 222 NLRB 1105, 1106 (1976) There is no credible evidence Respondent through Finishing Process Control Engineer Beck in returning the timecards to the timecard rack in alphabetical order was attempting to set Lovett up for suspension or dis- charge. Beck, based on his testimony which I credit, was returning the cards to the rack in the location for the first time ever and was merely placing them back in the timecard rack in alphabetical order. Further, Beck even attempted to apologize to Lovett the following workday for any confusion that may have resulted from his not having known a different order in which to replace the cards other than by where the employee's name was listed for the card to be. It is without dispute that the timecard incident gave rise to the meeting at which Lovett made the threats in question. The factor of what brought about the meeting, however, fades in importance when considered in the light of Lovett's defiant and threatening conduct. Even Lovett's long length of ac- ceptable service to Respondent can add little in evaluat- ing Respondent's motivation under the circumstances of this case. In normal circumstances, an employer absent a discriminatory motive might well be reluctant to dismiss a long-term employee. However, toleration of grave threats such as Lovett's could only be carried so far. Al- though it is not my function to determine whether disci- pline is severe or not, I do find it could be looked at as one of many circumstances to make a determination with respect to Respondent's motivation. However, in the in- stant case Respondent's discipline of Lovett would appear to be in keeping with the conduct of Lovett. Therefore, an inference of an improper motive cannot be drawn therefrom. I therefore conclude and find that the 3-day suspension of employee Lovett was brought about by his having made threatening comments regarding Respondent's management personnel. Accordingly, I find no violation of Section 8(a)(3) and (1) of the Act in Lovett's suspen- sion from on or about April 29 to on or about May I, 1980. 6. The alleged denial of access to the plant premises The General Counsel at paragraph 15 of the complaint in Case 10-CA-15752 alleges that Respondent acting through Plant Manager Van Cochran on or about April 9, 1980, in and about the vicinity of its plant, prohibited access to the plant premises to employees who engaged in protected concerted activity in violatin of Section 8(a)(l) of the Act. Counsel for the General Counsel relied on the testimo- ny of employees Ronnie Bennett, James A. White, and Donald Tidwell to establish the alleged violations. Employee Ronnie Bennett testified he asked Employee Relations Manager James Sego on April 8, 1980, where at Respondent's location would it be legal for him to pass out union leaflets. Bennett asked Sego at the request of one of the union organizers. Bennett was told by Sego he could pass out union leaflets on his own time in the break area. Bennett then asked Sego what about the parking lot because employees had passed out leaflets the night before and the security guards at Respondent had seen them but did not say anything to them; whereas the employees passing out literature on the day shift had "gotten picked on" by the guards. According to Bennett, Sego told him Respondent had made a mistake on that particular incident. Employee Tidwell testified he handbilled at Respond- ent's plant on various occasions and did so specifically on April 9, 1980. Tidwell along with his wife and ap- proximately 15 other of the union organizers went to Re- spondent's parking lot at approximately 7:30 a.m. at the gate where employees go in to pass out literature. Ben- nett along with the others started handbilling and at that point Respondent plant guard Juan Bargus came from the guard gate to where he and his wife were walking in the direction of the guard gate and yelled, "You all put those things back in your car." According to Bennett, his wife told the guard they had a right to pass out the lit- erature until time to clock in for work. The guard then told Bennett's wife in Bennett's presence, "Lady, if you don't put those things back in your car right now . . . you won't live to work today. He said, I'll call the sher- iff." Bennett and his wife put the handbills back in their car and came back up to the gate to go to work. Re- spondent guard Bargus told Bennett, "The ones I saw handing out leaflets stand right here." Bennett and the others who had been involved in the handbilling stood to the side of the gate, the shift changed, and the guard then told them they could leave. Bonnie Jilcott, one of those handbilling, asked the guard which way they could go, whether into work or not. The guard responded, "No, y'all go off the company property." Bennett testi- 354 AMOCO FABRICS CO. fled those who had been handbilling proceeded back to the public road where Union Representative Rita Ernst was waiting. Ernst instructed Bennett and the others to find out if they were fired. Bennett asked the guard if they were fired, and the guard responded "Mr. Van Cochran was checking to see what he could do with us." According to Bennett, a few minutes passed and then Plant Manager Van Cochran came from his office to the back of some cars at the parking lot outside the office. The guard proceeded over where Cochran was and it appeared Cochran and the guard had a conversation. The guard then returned to where Bennett was. Bennett stated those who had been detained were then allowed to go to work. Employee loom fixer James A. White corroborated the testimony of Tidwell in all essential points. Plant Manager Cochran testified he received a call from the security guard at the gate of Respondent's plant on April 9, 1980, regarding the activities of employees in the parking lot. According to Van Cochran, the call was from plant guard Juan Bargus who told Cochran some employees were passing out leaflets at the walk-through gate and asked what should he do about it. Van Cochran told Bargus he would call him right back. Cochran testi- fied he called Bargus back in about 5 minutes or less and told him that employees could pass out leaflets at the en- trance as long as they did not block it, but, if they blocked the entrance, they would have to move out of the way. Cochran denied going outside to speak with the security guard at the guard shack. It is undisputed on this record that Respondent plant guard Bargus prohibited employees from distributing lit- erature and for at least a period of time denied the em- ployees distributing the literature access to the plant property either to distribute the literature or to go to work. I conclude and find guard Bargus did so at the behest of Plant Manager Cochran. I am inclined to and do credit the corroborated testimony of Tidwell that Cochran came outside the plant and spoke with the plant guard at the time the employees were prohibited from passing out literature and being denied access to the plant. I do so not only for the reason that Tidwell's testi- mony in this respect is corroborated by Bennett, but I further do so based on the fact that Respondent did not call plant guard Bargus as a witness, nor did Respondent make any attempt to show that Bargus was no longer employed by or unavailable to the Respondent. Plant guard Bargus was the one witness who could have cor- roborated Plant Manager Cochran's testimony. Bargus was clearly a witness within the direct control of Re- spondent and as such I conclude that, if plant guard Bargus had been called, he would have testified unfavor- ably to Respondent in this particular aspect of the case. An inference adverse to the party who fails to call wit- nesses otherwise available to it or neglects to explain the failure to call such witnesses has been established law since the early days of the Board. Freuhauf Trailer Corn- pany, I NLRB 68 (1935), reversed 85 F.2d 391 (6th Cir. 1936); 301 U.S. 49 (1937), reversing circuit and enforcing the Board. See also Martin Luther King, Sr. Nursing Center, 231 NLRB 15 (1977). Assuming arguendo, that Cochran did not appear outside the plant, it was at his direction that employees were for a period of time pro- hibited access to the plant premises and precluded from distributing their union literature at Respondent's prem- ises. I therefore conclude and find that Respondent through Plant Manager Cochran on or about April 9, 1980, pro- hibited access to the plant premises to employees who engaged in protected concerted activity as alleged in paragraph 15 of the complaint in Case 10-CA-15752 and in so doing violated Section 8(a)(1) of the Act. 7. The alleged warning and subsequent discharge of employee Donald Dean Tidwell The General Counsel alleges at paragraph 16 of the complaint in Case 10-CA-15752 that Respondent on or about April 9, 1980, issued a warning to its employee Donald Dean Tidwell because of his membership in and activities on behalf of the Union and because he engaged in concerted protected activities. The General Counsel further alleges at paragraph 19 of the complaint in Case 10-CA-16016 that Respondent discharged and thereafter failed and refused to reinstate Tidwell because of his membership in and activities on behalf of the Union and because he engaged in protected concerted activity and because he gave testimony to the Board in Case 10-CA- 15752. Respondent admitted issuing a warning to Tidwell on April 9, and discharging him on June 12, 1980, but con- tended it did so for good cause. Donald Dean Tidwell commenced work for Respond- net in May 1972 and was employed there until June 12, 1980. Tidwell's most recent job was that of a loom fixer under the supervision of Collis Adams. Tidwell became aware of the union campaign at Respondent when he was approached by fellow employee Warren in Septem- ber 1979. Warren asked Tidwell if he would be interest- ed in talking to the employees about starting a union at Respondent. Tidwell attended union meetings, handed out union cards, talked to fellow employees about the Union, had union meetings at his home, and wore a union badge. Tidwell handbilled at Respondent on March 30 and 31, 1980, and was observed handbilling by Weaving Superintendent Lewis and Textile Superintend- ent B. J. Armistead. As is set forth elsewhere in this De- cision, Finishing Process Control Engineer Beck inquired of Tidwell regarding rumors at the plant and asked Tid- well if the employees were fixing to bring a union in at Respondent. Additionally, Tidwell along with others was prohibited access to the plant premises by Plant Manager Cochran on April 9, 1980. Tidwell testified he commenced working on a loom on April 9, 1980. Approximately 15 to 20 minutes after he commenced work, Process Control Engineer Dixon walked by where he was working. Additionally, Weav- ing Superintendent Lewis came by where Tidwell was performing his work and walked around the loom ob- serving the work Tidwell was doing. According to Tid- well, Process Control Engineer Dixon passed by where he was working again that morning. Sometime thereafter Tidwell's immediate supervisor, Maintenance Supervis,)r Collis Adams, came by and asked Tidwell if he had cov- 355 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ered the loom while he was pulling maintenance on it. Tidwell told Adams no, he had not, that nobody had been covering the lino looms when they pulled mainte- nance on them. Adams told Tidwell that Process Control Engineer Dixon had a warning for him (Tidwell) in the office. Tidwell met in Dixon's office with Adams and Dixon. According to Tidwell, Dixon informed him Weaving Superintendent Lewis had stated there was an employee pulling maintenance on a lino loom without covering it. Tidwell told Dixon nobody covered the lino looms when they pulled maintenance on them. Dixon told Tidwell he had a written warning for him and asked if he would sign it. Tidwell told Dixon he would not, but if Dixon would bring in the rest of the people who had been pull- ing maintenance on lino looms and not covering them and have them sign a warning, then he too would sign one. Tidwell testified he had been servicing lino looms since November 1979, that he had serviced approximate- ly 100 to 120 during that period of time and that he had never covered any of them. Tidwell testified supervisors had seen him doing this and he had never been issued a warning before. ' In response to questioning by the Gen- eral Counsel, Tidwell stated he had never been told to cover lino looms when working on them. Tidwell did acknowledge employees had always covered the flat weave looms. Tidwell stated flat weave looms produced solid sheets of material which would be damaged if soiled, while the lino weave produced a fish net type material in which cleaning material or oil if spilled on it would pass on through. On cross-examination Tidwell acknowledged that Process Control Engineer Dixon may have told loom fixers to cover the looms in April 1979. Tidwell ac- knowledged he had told the Board in his pretrial affida- vit that Dixon had told loom fixers to cover the looms. Tidwell stated he did not commence work on lino looms until November 1979, and that no one had ever told him to cover lino looms. Tidwell testified that, in servicing or performing maintenance on the looms, the loom fixers used oil and cleaning solvents among other material. Tid- well acknowledged that any .:pill of oil or cleaning sol- vent onto the lino type fabric would go through the roll as opposed to remaining on the top of the tighter fabric of the flat weave. Maintenance Supervisor Collis Adams testified he was in charge of the maintenance and cleaning of looms at Respondent, and he had always required the fabric to be covered while the the loom was being cleaned and he had done so ever since he had been in charge of mainte- nance, which had been a year and a half. Adams stated it was necessary for the fabric to be covered because the cleaning ingredients and the oil and grease from the ma- chine would go into the fabric and the fabric would be ruined when it was put into the oven. Adams testified the material from both types of weave was placed in ovens in order to affix purchaser labels to the sacks. 'TidclIl iclilicd D)ixonl toild himl Ihi, 'o. is hl l secnd x, rni g. ihai he had a wsarning irl Jan:llluair 1980). ind that, if Ihcre weire it rilt ,i oc.iasl, he sxould he hirminaled Adams further testified Tidwell had cleaned six looms between the dates of January I and June 10, 1980. Adams knew of no occasion prior to April 9, 1980, when employee Tidwell had cleaned a loom without first cov- ering the fabric. In fact, Adams stated to his recollection he had never seen anyone perform maintenance on looms without covering the fabric. Adams testified the lino weave was more easily soiled than the flat weave be- cause the lino weave was a more open weave and any substance spilled on it such as oil or cleaning solvent could more easily proceed through various levels of the fabric and go deep into the cloth. Adams testified the lino weave material was used to bag oranges, apples, grapefruits, tangerines, onions, and the like for shipment. According to Adams, dirty fabric was not the problem with respect to the bags or sacks, but rather the fact that, when the cleaning substance, oil, or solvent got on the material, it caused holes to burn in the fabric when placed in the oven and as such made the material unac- ceptable for the shipment of oranges, apples, and the like. Adams stated cleaning solvent was placed on the machines and then blown off with an airhose, thus caus- ing the cleaning solvent to spread over an area within the range of the blow of the airhose. Loom fixer Jerry Harris testified he had worked for Respondent for approximately 10 years and except for 3 months of that time he worked in the capacity of a loom fixer. Harris testified it was standard procedure ever since he had been at Respondent's plant to cover the fabric when working on a loom. Harris testified the fail- ure to do so resulted in wasted fabric. Loom fixer Monroe Stone testified he had worked for Respondent for 5 years and it was standard procedure to cover the fabric when loom fixers were working on a loom. Main- tenance Puller Allen Summerlin testified he had worked for Respondent for approximately 9 years and Respond- ent had a rule that, if you were going to pull mainte- nance on a loom, you had to cover up the material. Loom fixer Gary Rooks testified he was a 9-year em- ployee of Respondent and it was standard procedure at Respondent when pulling maintenance on a loom to cover the material, otherwise the cloth would be ruined. Respondent contends Tidwell was warned on April 9, 1980, for not covering the fabric on a loom which was a requirement of Respondent as evidenced by work rule 3 of its plant rules which pertained to employees refusing to follow work instructions. Respondent further contends the General Counsel failed to establish a prima facie case herein and that the allegation should be dismissed. Re- spondent further contends that even assuming arguendo a prima facie case had been established, Respondent had shown it would have disciplined Tidwell even in the ab- sence of his union activity, and thus the allegation must fail. The essential elements of a prima facie case with re- spect to Tidwell's warning on April 9, 1980, have been established. It is clear Tidwell had engaged in union ac- tivities, Respondent was fully aware of these activities, and he was disciplined. Further, the timing of the disci- pline certainly raises suspect with respect to the motiva- tion of the action taken by Respondent. There can be no 356 ANMOC()O FABRICS CO question but that General Counsel has established a prima Jarcie showing sufficient to support an inference that protected conduct was a motivating factor in Re- spondent's decision. The burden then shifted to Respond- ent to demonstrate that the same action would ha e taken place even in the absence of protected conduct. Wright Linc, a Diviion olf Wright Line. I/c.. 251 NLKRB 1083 (198(). I conclude and find that Respondent has satisfied that burden. It is undisputed that Tidwell performed mainte- nance on a loom without co cring the fabric. T idwcll contends he did not know of a requirement to cover the lino fabric. Tidwell fuirther indicated he had performed hundreds of maintenance actions on looms and had not covered them and had done so with the know ledge of Respondent's supervision. I simply find Tidwuell's contell- tions unbelievable. The evidence is rather overwhelming that Respondent required the looms to be covered when maintenance was being performed. Even Tidwell himself acknowledged he might have been told of such a re- quirement a year earlier than the incident herein. The evidence is very persuasive that Respondent had valid reasons for requiring the covering of the fabric. Re- spondent had a rule requiring the following of work instructions and as evidenced by Resp. Exh. 35 employ- ees such as Lonnie L. Harnage had been disciplined for among other reasons "failing to follow specific instruc- tions to cover the press roll on loom 6739" on October 26, 1979. Additionally, employees Eddie Perkins and Larry Cornelius (Resp. Exhs. 45 and 39) had been previ- ously discharged for not following work instructions. Based on the foregoing, I am persuaded that the com- plaint with respect to Respondent having unlawfully issued a warning to Tidwell on April 9, 1980, must be dismissed. Tidwell testified he was discharged on June 12, 1980. Tidwell stated that on the morning of June 11, 1980, when he reported for work, his supervisor, Adams, in- formed him the loom he had worked on the day before had been found leaking oil. The loom number in question was loom 552. Adams informed Tidwell the leak had been found the night Tidwell worked on the loom around shift change time, and that he. Adams, did not know what would be done with respect to it. Tidwell proceeded to pull maintenance on another loom when Maintenance Supervisor Adams came to him and asked him to go to the office. Tidwell and Adams went to Process Control Engineer Dixon's office. Dixon told Tidwell they had found the loom he had worked on the night before leaking oil and he was being sent home until Respondent had an opportunity to inves- tigate the situation. According to Tidwell, he received a warning and went home. Tidwell was told to report to work at 8 o'clock the next day. Tidwell could not locate his timecard when he arrived at work the next day and inquired of Adams about the card. Tidwell was told by Adams that Weaving Superin- tendent Lewis had instructed that the timecard be pulled and that Lewis would later speak with Tidwell. After a wait of 30 minutes or more, Tidwell met with Lewis. While waiting to meet with Lewis, Tidwell had asked Process Control Engineer Dixon if he could have a wit- ness with him and Dixon told him no. Lewis told Tid- well he supposed Maintenance Supervisor Adams and Process Control Engineer Dixon had gone over with him what had happened. Tidwell stated they had. Lewis then informed Tiduell he was going to have to let him go. Tidwell protested saying someone else had messed up the loom after he left. Weaving Superintendent Lewis told Tidwell Respondent had investigated it and no one else had messed with the loom, and, according to Tid- well, Lewis further told him his work had been so poor lately they were going to have to let him go. Tidwvell explained that to check for an oil leak on a loom the inspection plate must be taken off the front of the loom, make a visual inspection of the loom, replace the inspection plate, take a paper towel and wipe the plate clean, and, according to Tidwell, if there is a leak, it will show' up. Tid well testified he did this procedure twice on loom 552 on the night he repaired it. Tidwell testified he could tell someone else had worked on the loom other than himself because he saw' permatex on the loom. He described permatex as a liquid gasket sealer. Tidwell discussed the permatex with employee Darrel Mathis, who was a loom fixer. According to Tidwell, Mathis told him the only thing he found wrong with loom 552 was three allen-type screws needed tightening on the bottom of the loom. Tidswell stated he asked Mathis if he put permatex on the machine, and Mathis told him no, that all he did was tighten up the three screws. 9 Maintenance Supervisor Adams testified that on June 11, 1980, Tidwell performed regular routine maintenance on loom 552. According to Adams, the maintenance Tid- well pulled was of the type he did every day on weave machines. Adams testified that on some occasions Tid- well did not have to go into the lower housing on a ma- chine, but that on the particular occasion in question Tidwell had to in order to set some lifters and openers in the heighth and lowness of the shuttle lifter. Adams testi- fied that when the inspection plate cover was placed back on the outer housing, the screws were left finger loose on the inspection cover which resulted in all of the oil draining from the machine. The leak was discovered on the evening shift. According to Adams, the machine had run for about 7 to 7-1/2 hours when discovered and the leaking oil had run underneath the fabric and under- neath the loom. If the machine leak had not been discov- ered and the loose plate not tightened, the damage to the machine would have been approximately $8,000 to $10,000. according to Adams. Weaving Superintendent Lewis approved the recom- mendation that Tidwell be terminated on June 12, 1980, [t riduell lestified that as he rails on his way out of the plant at the timle he as setilt home h) Respondllt. he had a chance meeting ith felloi, emplo).ee Wayne Bennettt u ho asked Why he .as going home lidt.ell told Bennett he uas being sent home hecause of an oil leak Ben- nlrt told Tid.eil to look ait he oil lea on the loom According to Tid- '"ell, Hienllen had Irfornied Process Corltrol t ngineer Dixon abhout the leak ienllrlet had delcrmined that enployce Ranllld Noll ulas repontlihle for u orktig ton the p.artnuliar loomn thati a.s leaking Hentielt Iold l id ci.'ell Ihal Dixl)on hald illforrrnld him th rhlt t lhrhig lould hbe donte ihabout prosinlg As hoe had done it. I1o lusl tighten up the bolts 'ldtell testified ernplhsec Rand.i s Noll did riot ' reil t .i 1tliOll hbiltll DECISIONS ()T NAI I()NAL L.A()R R I.ATIO()NS BO)ARI) because of what he considered to be poor job perform- ance with a potential of several thousand dollars damage Lewis testified he based his poor job performance assess- ment on the fact Tidwell had pulled routine maintenance on the loom and left the inspection cover loose causing the oil to leak from the machine, which leak was readily discovered by the fixer on the oncoming shift. Respondent contends its normal progressive disciplin- ary procedure was followed with respect to employee Tidwell. Tidwell had been disciplined in January 1980 for absenteeism. The evidence indicated another loom fixer had received the same discipline for the same mis- conduct. Tidwell then received a warning on April 9, 1980, for failure to follow instructions. The third incident then resulted in the discharge of Tidwell on June 12, 1980, for poor work performance. Respondent contends Tidwell was not the subject of any disparate treatment. Respondent's counsel contends there can be no question but that an employer has the right to demand satisfactory work performance from its employees and that, when unsatisfactory work can potentially result in extensive damage, an employer is justified in imposing discipline. Respondent cited Klate Htoh Company, 161 NLRB 1606 (1966), wherein the Board held: "If an employee pro- vides an employer with a sufficient cause for his dismiss- al by engaging in conduct for which he would have been terminated in any event, and the employer discharges him for that reason, the circumstance that the employer welcomed the opportunity to discharge does not make it discriminatory and therefore unlawful." Respondent's counsel contends counsel for the General Counsel failed to even establish a prina facie case with respect to the discharge of employee Tidwell. As set forth supra, I conclude counsel for the General Counsel established a prima facie case with respect to the warning given to Tidwell on April 9, 1980. 1 consider that same evidence to constitute a prima facie case with respect to Tidwell's discharge such as would require Re- spondent to demonstrate the same action would have taken place against Tidwell in the absence of his protect- ed conduct. I am persuaded Respondent met its burden. Tidwell did not deny having performed maintenance on loom 552 on the night in question. He rather attempted to shift the responsibility for the leak caused by the loose inspection plate cover to someone having worked on the loom after he completed his work on it. I find such evidence unper- suasive. The General Counsel did not call Wayne Bennett as a witness even though employee Tidwell indicated Bennett had knowledge of other looms leaking with Respond- ent's knowledge without employees being disciplined. 2 I am persuaded Respondent followed its normal progres- sive disciplinary procedures with respect to Tidwell, that it did not treat him differently from other employees, and it demonstrated it would have discharged Tidwell even in the absence of his protected conduct. I therefore recommend that portion of the complaint in Case 10-CA-16016 which alleges Respondent unlaw- "' In Ihis same respecl, the General Ciountsel did not call I)arrel Mathis as a wifltness fully discharged Donald Dean Tidwell on June 12, 1980, he dismissed in its entirety. Further, I find the record evidence does not support a finding that Respondent dis- charged Tidwell because he gave testimony to the Board in Case 10-CA-15752. I therefore also recommend dis- missal of that portion of the complaint in Case 10-CA- 16016 which alleged a violation of Section 8(a)(4) of the Act in the discharge of Tidwell. C. The Alleged Violations in Case 10-CA-16016 1. Alleged interrogation The General Counsel alleges at paragraph 7 of the complaint in Case 10-CA-16016 that on or about speci- fied dates between March 31 and April 15, 1980, in and about the vicinity of its plant, Respondent by its supervi- sors and agents, Supervisor Lynn Duck, Weaving Shift Supervisor Howard Bennett, and Extrusion Shift B Su- pervisor Peter Peterson, interrogated employees concern- ing their union membership, activities, and desires in vio- lation of Section 8(a)(1) of the Act. Counsel for the General Counsel relied on the testimo- ny of employees Clemenstine Hendley, Elijah Bailey III, Kenneth Locklear, and James Frye to establish the viola- tions alleged. Elijah Bailey III testified he was an employee of Re- spondent and learned of the union campaign at Respond- ent on April 1, 1980. After learning of the union cam- paign, Bailey passed out union leaflets in the plant park- ing lot, attempted to sign up employees at break time, at- tended union meetings, went to meetings of the Union held in employees' homes, and attempted to talk to em- ployees about joining the Union. From April 9, 1980, until about the last of June 1980, Bailey wore a union button to work every day. On April 8 Bailey had a con- versation alone with Supervisor Lynn Duck in Duck's office. Bailey testified he had gone to Duck's office to pick up money he had won in a fishing tournament and, while he was in Duck's office, Duck told him he had something he wanted to ask him. Duck told Bailey: He asked me how I felt about the Union, and I told him I was all for it, and he told me that the Union consists of organized crime, and the only way the Union could survive was by the members paying union dues, and said if you sign the committee card, ain't no way for you to get out of the Union. If you have a problem or anything, you can't go to your supervisor. You had to go to the Union, and he said some more things. I told him I didn't know that much about the Union, that I was going to a meet- ing that afternoon when we got off from work. Former employee James Frye testified he had a con- versation with Supervisor Duck at the end of the work line the second week of April 1980. No one was present other than Duck and Frye. According to Frye, Duck asked how he was doing and then stated, "James, how do you feel about the Union'?"" Frye replied he did not know. Duck then told Frye the Union was no good, that you had to pay dues and they just take your money and AMOCO FABRICS CO) the Union does not have many benefits like the Respond- ent did. Supervisor Duck testified he had a conversation with Bailey at the time when Bailey came by his office to claim half of the prize money for the largest bass being caught in a fishing tournament certain of the employees had attended. Duck told Bailey he wanted Bailey to hear both sides of the story regarding the Union. Duck then told Bailey what he thought about the Union. Duck asked Bailey to look at both sides and make sure he heard from both and then he could make his own deci- sion. Duck testified he had associated with Bailey and other employees away from the plant on such activities as fishing and scouting for places to deer hunt. Duck ad- mitted he asked Bailey how he [Bailey] felt about the Union, but he believed the date of his inquiry was a day or so later than Bailey had indicated. Duck denied he asked former employee Frye how he felt about the Union. I find that Respondent through Supervisor Duck inter- rogated employees concerning their union activities on April 8 and 15, 1980. Duck readily admits asking em- ployee Bailey how he felt about the Union on April 8 and, although Duck generally impressed me as a credible witness, I find he either failed to remember or misstated the facts when he denied he asked employee James Frye how he felt about the Union, and as such I discredit Duck's denial. I find such conduct of Respondent violat- ed Section 8(a)(1) of the Act as alleged at paragraph 7 of the complaint in Case 10-CA-16016. I further conclude and find that Duck's comments to Bailey about employ- ees being unable to go to their supervisor with problems constituted a threat to employees in violation of Section 8(a)(1) of the Act as alleged at paragraph 9 of the com- plaint in Case 10-CA-16016. I reject what seems to be an apparent contention of Respondent that because Duck and Bailey were socially good acquaintances, the actions of Duck would not con- stitute unlawful conduct. There is no procedure whereby unlawful coercive interrogation can be converted to lawful conduct premised on the fact the individuals in question were personal friends. See Mayfield's Dairy Farms, Inc., 225 NLRB 1017 (1976). Clemenstine Hendley testified her supervisor was Howard Bennett. Hendley became aware of union activi- ties at Respondent during the last week in March. Hendly attended approximately 11 or 12 union meetings, talked to employees about joining the Union, wore a union button, and signed a union card. Hendley testified that she was at her machine at the burling table the last week of March 1980 when her supervisor, Bennett, came to Hendley and told her he wanted to talk to her. Hend- ley asked Bennett if it was about the Union, and Bennett said it was. Bennett asked Hendley how she felt about the Union. Hendley told Bennett she had not make up her mind at that time, but when she did she would let him know. Hendley told Bennett she had 8 years' work- ing experience under the AFL-CIO in piecework, but she did not know how it would differ in a place like Re- spondent's plant, that she needed to know' more about the Union. Bennett asked her how she was going to learn more about the Union, by going to a particular fellow employee? Hendley informed Bennett she would go to union meetings to find out more about the Union. Ben- nett told Hendley he wanted to ask her some questions, so Hendley asked that he give her time to get a card and write down what he said. Bennett then told Hendley, "The way I understand it, you can't go to your supervi- sor with your personal problems like you talk them over with me now." Hendley told Bennett she did not know about that. Bennett then told Hendley about an employee at Weyerhauser Company who was working to pay for a truck and that a strike was called for by a union, and the truck was burned. Bennett told Hendley unions were really a form of organized crime. Weaving Shift Supervisor Bennett testified he had a conversation with Hendley at her work station either at the end of March or the beginning of April 1980. Ben- nett stated he told Hendley he wanted to talk to her about the Union. According to Bennett, Hendley shut her machine off, sat down, and told him, "Let's talk." Bennett testified, "I told her about an employee that we had working for us by the name of John Bryce, that he had a tractor trailer truck and he used to haul chips for Weyerhauser Company in Adel, Georgia. They were unionized. Weyerhauser had been on strike for 6 months and during this time he could not make the payments on his truck and he lost it." Bennett testified this conversa- tion with Hendley took place before employees passed out union leaflets at the plant. Bennett denied he stated the Weyerhauser employee's truck had been burned and he further denied telling Hendley that if the Union came in, she could not go to her supervisor with her problems. Although employee Hendley did not appear at all times to have a real grasp of all of the facts of a particu- lar situation, I nonetheless conclude, based on my obser- vation of her testimony, that her testimony is worthy of belief. I credit Hendley's testimony with respect to the conversation between Weaving Shift Supervisor Bennett and herself which took place on or about March 31, 1980. 1 specifically discredit Bennett's testimony where it is contradicted by employee Hendley. Accordingly, I find Respondent unlawfully interrogated its employees concerning their union membership, activities, and de- sires as alleged at paragraph 7 of the complaint in Case 10-CA-16016, and further find that Respondent through Bennett threatened employees they would not be able to take grievances to their supervisor if they selected the Union as their collective-bargaining agent as alleged at paragraph 9 of the complaint in Case 10-CA-16016. Kenneth Locklear testified he became aware of the union organizational activities at Respondent around April 8, 1980. After learning of the Union he talked to employees about signing cards, signed the committee sheet which later became a union leaflet, went to meet- ings of the Union held in employees' homes; and from April 8 until he lost his union button, he wore it at work. Locklear testified he had a conversation with Extrusion Supervisor Peter Peterson around the last part of April 1980. The conversation took place in the extrusion office where Locklear and Peterson were alone. Locklear testi- fied Peterson "asked me why I was taking notes on the job, and I told him I had to because I felt my rights 359 I)E C ISI()NS ()F NA TIONAl . IABOR REIATIONS BO()ARI) were being misused. And he asked me why did people out there think they needed a union." Locklear told Pe- tersonl it ,was not because of money but for better work- ing conditions. Peterson acknowledged having a conversation with Locklear about the Union and also stated he was aware Locklear wore a union button at the plant, Peterson denied asking Locklear why employees felt they needed a union. After carefully observing both Locklear and Peterson testify, and giving consideration to the fact that Peterson discussed the Union with Locklear and other employees, and the fact that Locklear wore a union button, I am persuaded and find Peterson did in fact ask Locklear why employees felt they needed a union and as such un- lawfully interrogated him concerning his union member- ship, activities, and desires in violation of Section 8(a)(l) of the Act as alleged at paragraph 7 of the complaint in Case 10-CA-16016. 2. Alleged threats of discharge The General Counsel at paragraph 8 of the complaint in Case 10-CA-16016 alleged Respondent acting through Extrusion Supervisor Peter Peterson and Third-Shift Su- perintendent Gene Williams on or about April 15 and 28, 1980, respectively, in and about the vicinity of its plant, threatened its employees with discharge if they joined or engaged in activities on behalf of the Union. Counsel for the General Counsel relied on the testimo- ny of employee Joan Foxworth and former employee James Frye to establish the violations alleged. Former employee James Frye testified he had a con- versation in the third week of April 1980 with Extrusion Supervisor Peterson in Peterson's office. Frye testified the conversation came about because he had asked to speak with Peterson about obtaining some time off to travel to Florida to see his mother. Peterson told Frye it was all right for him to go to Florida, that he would get someone to work in his place. Peterson then told Frye he had something he wanted to talk to him about. Peter- son then asked Frye how he felt about the Union. Frye told Peterson he did not know. Peterson stated he knew of a union trying to get in somewhere in Adel, Georgia, and that it was unable to do so. Peterson told Frye that, when the union failed to get in at the place he was talk- ing about, most of the employees who were working for the union got laid off or discharged. Peterson acknowledged he had a conversation with Frye on or about the date indicated. Peterson stated he brought the subject matter of the Union up with Frye because there had been a lot of talk about the Union, and he wanted to tell Frye a few things about it, that is, Pe- terson wanted to express to Frye his personal opinion about the Union. Peterson told Frye the Union would not be good for Respondent, specifically the employees. Peterson continued, "And I told him job security came from competitive organization and that came from not having strikes. And I said unions now are big business, and they're kind of looking for-they're not looking out for the little guy like they used to. And I asked him if he could visualize for himself on a strike-being on a strike without getting any money." Peterson also told Frye he had heard about a strike at the Weyerhauser Company. Peterson denied he asked Frye how he felt about the Union. Peterson stated he had never seen Frye wear a union button. Respondent contends Frye's testimony should be dis- credited because neither Peterson nor a fellow coworker, Tim Roberts, had ever seen Frye wear a union button. Further, Respondent contends that, even if Frye's testi- mony is credited, it is nothing more than a lawful com- ment which would be protected under the free speech proviso of Section 8(c) of the Act. I credit Frye's testimony with respect to the conversa- tion with Peterson which each acknowledged was about the Union. I conclude and find the comments of Peterson constituted a threat of discharge to employees if they joined or engaged in activities on behalf of the Union as alleged in paragraph 8 of the complaint in Case 10-CA- 16016 as those allegations relate to Extrusion Supervisor Peterson. Joan Foxworth testified she was an employee of Re- spondent and became aware of the union campaign at Respondent about the last week in March 1980. Fox- worth attended union meetings, wore a union committee button, signed a union card, and attempted to get other employees to sign cards for the Union. Foxworth testi- fied that starting the second week in April and thereafter for the next 2 months she wore her union button to work everyday. Foxworth testified she received a disciplinary warning from Respondent after she commenced to wear a union button. Foxworth testified her warning was for talking to a fellow employee about the Union on the job. Foxworth received her warning in April 1980. Foxworth testified that, prior to her receiving the warning, she had gone to fellow employee Eileen Carv- er's work machine. Foxworth testified she was helping Carver weave when Debbie Barrett came up to the loom where they were and started a conversation by talking about Foxworth's hair. According to Foxworth, Eileen Carver walked off, and Barrett then asked Foxworth if the union people were going to be at the end of the road that day. Foxworth told Barrett she guessed they would, but she could not talk to her about it then, that she would have to talk about it after work. According to Foxworth, Barrett said agreed and went her way. Ac- cording to Foxworth, Barrett started the conversation. Foxworth stated she went about her job for a couple of hours and then her supervisor, Wilma Lane, came to her and told her to report to the office. Foxworth stated when she got to the office Weaving Shift Supervisor Barbara Walker and Third-Shift Superintendent Gene Williams were there. According to Foxworth, Williams told her he was giving her a written warning "on ac- count of Debbie said I was talking to her on her job about the Union .... " Foxworth told Williams that Barrett was a liar and, if he would go and get her, she would tell Barrett to her face that she was a liar. Fox- worth told Williams she was not going to sign a damn warning. Williams told Foxworth that it did not matter whether she signed the warning or not. Foxworth told Williams the reason she was getting the warning was be- cause whe was wearing a committee button and Barrett 360 AMOCO FABRICS CO. was not. According to Foxworth, Williams then stated she could be fired if it happened again. Foxworth testi- fied that Barrett told her a couple of weeks later that she [Barrett] did not receive a warning for the conversation she had with Foxworth. Charles Alton Carver, the husband of Eileen Carver, testified he had seen Debbie Barrett wandering from ma- chine to machine at the plant and had seen her talk to Joan Foxworth and his wife while they were working at their machines. He placed the date as either the first week or the beginning of the second week of March 1980. Mr. Carver testified he could not hear any of the conversations among Foxworth, his wife, and Barrett. Carver testified that after a while Barrett came by where he was and stated to him that she was going to the weave room office and get Ms. Carver and Joan Fox- worth in trouble because they jumped onto her about the Union. Later that same day Foxuworth came crying by where Mr. Carver was and said she had gotten "a damn warning." Carver testified Respondent's policy regarding talking on the job was that "you were not supposed to talk." Debbie Ann Barrett worked in the weaving depart- ment at Respondent along with employees Joan Fox- worth and Eileen Carver. Barrett testified she talked to her supervisor regarding employee Foxworth bothering her about joining the Union. Barrett requested of super- vision that they require Foxworth to stop bothering her. Barrett made her complaint to Weaving Shift Supervisor Walker and Third-Shift Superintendent Williams. Barrett told Williams and Walker that Foxworth was bothering her in the bathroom and on the job, but that she did not tell them Foxworth was bothering her on the porch, al- though in fact she had been. Barrett testified Foxworth had bothered her on several occasions. Barrett denied ever starting a conversation with Foxworth about the Union while on the job. Barrett stated she never at anv time went to Eileen Carver's work station to talk to her about the Union or anything else. Barrett wore a paper button with a slogan on it, which was against the Union. Barrett testified that the place where Carver "jumped onto" her about the Union was in the bathroom. Accord- ing to Barrett, Eileen Carver became very upset at her because she would not work to support the Union. Bar- rett stated that Third-Shift Superintendent Williams and Weaving Shift Supervisor Walker wrote out a statement setting forth her complaint against Foxworth and she signed it. Barrett testified she never had any conversa- tion with Foxworth after Foxworth got a warning for bothering her. The only contact Barrett stated she had with Foxworth after the warning was that Foxworth, Eileen Carver, and other employees supporting the Union would come by her machine and laugh at her. Weaving Shift Supervisor Barbara Walker testified she was present when Foxworth received a warning. Walker testified she first became aware of a problem when em- ployee Kate Davis came to her during the work shift and told her Debbie Barrett was crying because Fox- worth was harassing her and interfering vith her job. Walker told Davis that Barrett would have to come to her personally, that she could not rely on someone else's word. Walker testified Barrett catme to her office and told her that Foxworth was harassing her and interfering with her work. According to Walker, Barrett signed a statement that Foxworth was interfering with her work. As a result of the written statement by Barrett, Fox- worth was given a disciplinary warning for interfering with the work of a fellow employee. Walker asked Fox- worth what had happened at the time she gave Fox- worth her warning. Walker acknowledged that at the time Foxworth was given a warning she was wearing a union button. Third-Shift Superintendent Williams testified that Debbie Barrett had spoken with him concerning a fellow employee, Foxworth. Williams stated Barrett informed him Foxworth was bothering her while she was attempt- ing to perform her job duties, Williams testified he had Foxworth come to his office, and the first thing Fox- worth stated to him as she entered through the door was "she was not signing no goddamn warning. She made that statement several times before she had a seat." U'Wil- liams explained to Foxworth this type conduct could not be tolerated, that what she did while on her breaks, in the restroom, or off the job, was up to her; but as long as employees were performing their work, he could not tol- erate anyone, pro- or anti-union, interfering with a fellow employee's work performance. Williams informed Fox- worth that if such conduct continued, further disciplin- ary action would be taken. Third-Shift Superintendent Williams testified he did not give Eileen Carver a warn- ing at the time he did Foxworth because he had checked into the matter and found out the harassment Barrett complained of with respect to Carver had taken place in the restroom or in the break area. Williams considered that to be the employees' own time, and as such was not considered to be a distraction from the job of a fellow employee. Foxworth's disciplinary warning was given simply because she was interfering with a fellow employ- eec's job performance during work time. Respondent contends the General Counsel did not es- tablish a prima facie case with respect to the disciplinary warning given to employee Foxworth. Respondent con- tends there has been no showing that Foxworth was sub- jected to disparate treatment. Respondent contends the record demonstrates that two union supporters. Fox- worth and Carver. solicited a fellow employee to sup- port the Union: however, one of those, Carver, limited her activities to nonwork time and was not disciplined, whereas Foxworth interfered with the work of another employee on work time and was disciplined. I conclude and find that counsel for the General Counsel established a prinma facie case with respect to the warning given Foxworth. Foxworth was a union sup- porter and by the nature of the discipline given her, Re- spondent was aware of her union sentiments. Therefore, I find the burden shifted to Respondent under the princi- ples of Wright Line. Inc.. supra, to demonstrate that the same actionti would hae taken place even in the absence of the protected conduct. In the instant case with respect to this allegation the burden would be met if the Em- ployer established that there \was actual interference xwith production or mainteniance of plant discipline. 361 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD I credit the testimony of Debbie Barrett that her work was interfered with by employee Foxworth. I specifical- ly discredit Foxworth's testimony that it was Barrett who came to her machine and inquired about the Union. After careful observation of Foxworth's testimony, I have concluded it is unworthy of trust or belief in those instances where it was contradicted or unsubstantiated. I find Respondent met its burden of showing actual inter- ference with plant production. The Respondent conduct- ed an investigation into the facts and determined that production had been interfered with by employee Fox- worth. Further, Respondent determined that one of the two individuals involved, i.e., Eileen Carver, had not in- terfered with production, but rather had confined her so- licitations to nonwork time and as such she was not dis- ciplined; therefore, it appears Respondent's motivation in disciplining Foxworth was solely based on maintaining plant production. In making my finding herein, I have fully considered that a delicate balance must be main- tained between an employee's right to engage in organi- zational activity and an employer's responsibility for the maintenance of rules necessary to efficiently operate its plant. The Board in Green Tree Electronics Corporuation, 176 NLRB 917 (1969), taught that this balance must be administered in a fashion insuring that reprisals are not taken against principal in-plant organizers where legiti- mate interests of employers are not involved. However, 1 am persuaded and find that Foxworth had interfered with the production of Respondent by disrupting the work of fellow employee Barrett, and as such I conclude and find Respondent did not violate the Act by issuing a written warning to employee Joan Foxworth on April 28, 1980, as alleged in paragraph 12 of the complaint in Case 10-CA-16016.21 3. Alleged prohibition against employees engaged in union activity during work time The General Counsel alleges at paragraph 10 of the complaint in Case 10-CA-16016 that Respondent acting through its supervisor and agent Barbara Walker on or about April 10, 1980, in and about the vicinity of its plant, prohibited employees from engaging in activity on behalf of the Union during working time while permit- ting other employees to engage in antiunion activity during working time. Weaving employee Charles Alton Carver testified he had a conversation with Supervisor E. L. Nelson in early April 1980 in which he asked Nelson if literature could be distributed on behalf of Respondent, why union mem- bers could not have the right. Nelson allegedly told Carver it would not be permitted. Carver testified he had a second conversation that same week with Nelson and in it he asked Nelson about antiunion slogans being placed on and around the plant by an employee, Jackie Glausier. Carver testified antiunion slogans were placed " I further credit Third-Shift Superintendent Williamll' tli llm on, i hat he told Flxwo, rth that thiuld the incident reioccur. further disciplinalr action could be taken I specifically discredit Fox ,orth's tesinont I to Ihe contrary I find such a coninllent did hnt conlstitulte a threat to discharge employees hbecause they joined <or engaged im act.iei ione l hhalf o r the Union a, alleged at par 8 of lie coimplaint i Case 10 CA Ih(lh al it pertained Ii Ihird-Shift Superinlendent Williantl on small, round, yellow colored stick-on type pieces of paper which were the same type as those used by Re- spondent for placing the loom number, style, and width of cloth on material being used on the looms. According to Carver, these stick-on pieces of paper were maintained by the supervisors of Respondent. During that same period of time, Carver testified he saw employee Glau- sier placing those pieces of paper with antiunion slogans on them on "the chest or breasts of weavers." Carver testified Weaving Shift Supervisor Barbara Walker saw employee Glausier distributing the stickers and in fact was walking with him. According to Carver, Glausier was permitted to go from job to job and department to department to distribute the stickers. Carver again com- plained to Nelson. According to Carver, he continued to complain to Supervisor Nelson until the end of June 1980 when Glausier was stopped from going from de- partment to department. Carver stated no other employ- ees were permitted to go from department to depart- ment. Carver acknowledged that Supervisor Nelson told him it was wrong for the antiunion people to be permit- ted to give out literature or slogans, and told Carver he would take the matter up with Third-Shift Superintend- ent Williams. Employee Jackie Glausier testified he passed out an- tiunion stickers during the month of April 1980, that he did so in the yard, parking lot, and breakroom areas, that he passed them out before working hours and after working hours, that he did not pass them out when em- ployees were supposed to be working, nor did he give them to employees during the time they were working. Glausier testified he never passed out antiunion stickers in the plant other than in break areas. Glausier stated he obtained the pin-on antiunion slogans from fellow em- ployee Minnie Benefield who bought the material, brought it to him, and he handwrote antiunion slogans on the pieces of paper. Glausier testified Weaving Shift Supervisor Walker never accompanied him when he passed out antiunion slogans except for the fact that she may have been in the breakroom area at a time when he was doing so. Glausier had obtained yellow stickers from the supervisors' office where, according to Glausier, anyone could obtain them. In fact, Glausier had previ- ously obtained the stickers for his personal use, which was to utilize them for targets to sight in guns he used for target shooting. Glausier stated the little yellow stick- ers were just lying in the office for anyone's use and that everyone had access to the office to obtain the stickers. Employee Minnie Benefield, a 9-year employee of Re- spondent, worked in the same department and on the same shift with Jackie Glausier. Benefield became aware of union activities at Respondent in April 1980 when some employees started wearing union buttons. Benefield stated she was not for the Union. Benefield wanted other employees to know she was not for the Union and as such she made from various colored construction paper small round shaped badges which she took to employee Glausier who printed anti-union slogans on them. Bene- field also bought pins to affix the badges to employees' clothing from her own money. Benefield testified Glau- sier passed the pieces of paper out at the plant but never 362 AM()CO FABRICS CO when employees were supposed to be working. Benefield said she did not read what Glausier wrote on the materi- al she purchased for the antiunion slogans, "but my younguns did and my friends did because I don't have any education to read." Benefield helped pass out the an- tiunion slogans on the porch to the veave room at the plant but never when employees were working. Bene- field testified that the little yellow stick-on identification labels for fabric were all over the weave room, that you could find them stuck on the floor. lying on machines. and all over the place. In fact, Benefield testified she wore one of the little yellow stickers with an antiunion slogan on it. She found the yellow sticker or label under- neath her machine where she worked. Weaving Shift Supervisor Walker testified she knew employee Jackie Glausier, but that he did not work di- rectly for her but rather worked for Weaving Supervisor Terry Pilcher. Walker had never seen Glausier pass out yellow loom stickers with antiunion slogans on them. Further, Walker testified she never on any occasion ac- companied employee Glausier as he walked through the weaving department. Walker testified she never at any time observed Glausier in her department putting yellow loom stickers with antiunion slogans on them on any of the weavers. Walker stated it simply did not occur. Glausier and Benefield impressed me as credible wit- nesses and their testimony in all essential aspects was corroborated by Weaving Shift Supervisor Walker, I credit the testimony of Glausier, Benefield, and Walker, and in doing so I find the allegations alleged in para- graph 10 of the complaint in Case 10-CA 16016 as testi- fied to by employee Carver simply never took place. I therefore recommend dismissal of paragraph 10 of the complaint in Case 10-CA-16016 in its entirety. 4. The warning issued to employee Kenneth R. Locklear The General Counsel alleges at paragraph 11 of the complaint in Case 10-CA-16016 that Respondent on or about April 25, 1980. issued a written warning to its em- ployee Kenneth R. Locklear because of his membership in and activities on behalf of the Union and because he engaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid and protection. The Respondent admitted issuing a warning to Lock- lear on April 25, 1980, but asserted the warning was issued for good cause. Employee Kenneth R. Locklear testified he became aware of the union campaign at Respondent around April 8, 1980. Locklear talked to fellow employees about signing cards for the Union, signed a committee sheet for the Union, attended meetings of the Union held in var- ious employees' homes, and passed out union literature in the parking lot of Respondent. Locklear vwas one of the employees who passed out a union leaflet at the plant with a list of employees' names on it who supported the Union. (G.C Exh. 3.) Locklear wore a union committee button every day from April 8. 1980, until he lost it. Locklear could not recall when he lost his union button. As is set forth elsewhere in this Decision, Extrusion Su- pervisor Peterson in the latter part of April 1980 asked Locklear why the employees felt they needed a union. On April 25. 1980, Locklear testified he was in the de- partment in which his wife worked at the plant near midnight and he was waiting for her to finish her work as he had usually done when a supervisor walked by and observed him being there. Locklear testified he had his union committee button on at the time and the supervi- sor looked at him and asked him what he was doing in that department. Locklear told the supervisor he was waiting for his wife to finish work so he could give her the keys to their home. According to Locklear, the su- pervisor told him he had no business in that particular department, for him to wait beside the clock or outside the door of the department. Locklear said the supervisor walked away "and I stood around for a minute to give her [his wife] the keys because she wasn't through with her job." Locklear testified the supervisor returned in ap- proximately a minute and came back to where he was. Locklear then left the department, clocked in and went to his own department. Approximately 10 to 15 minutes after Locklear had been on his job, Extrusion Supervisor Peterson came to him, took him to the office and told him he was going to be given a written warning for being in another depart- ment without permission from the department supervisor. Locklear told Peterson he had been going in that depart- ment every night he had worked the 12 p.m. to 8 a.m. shift and asked Peterson if the warning was because of his union button. Peterson told Locklear it was not be- cause of his union button. Locklear told Peterson that there was another employee in the department that same night Locklear stated the other employee was Elton Johnson. Locklear said he did not see anyone ask John- son to leave. Locklear knew of other employees who had visited other departments without permission: namely, Walter Alexander and Gene Mapp. Locklear testified the supervisor who asked him about his being in the department where his wife worked was Beaming Supervisor Rick Hingson. Locklear testified it would take probably 10 seconds to give his wife their house keys and leave. Locklear acknowledged that in his pre-trial affidavit given to the Board he had indicated that he had been in the beaming department for 5 min- utes before Beaming Supervisor Hingson approached him. Hovever, in testimony at the hearing he was not sure if it was 5 minutes or not. Locklear testified he ar- rived at the beaming department at approximately 15 minutes until midnight and he stated he clocked-in in his department at approximately 7 minutes until midnight, but 2 minutes of that time was spent walking between the beaming department where his wife worked and the department where he worked. Locklear testified he also saw Extrusion Shift Supervisor Dan Jones in the beam- ing department that night. Locklear observed Elton Johnson in the beaming department for a moment, but did not knowu ho`w long he stayed in the department: how e er. Locklear said that Johnson could not have left before lie did because there was no way for Johnson to leave the beaming department w ithout his having seen 363 DECISIONS ()F NATIONAL LABOR RELATIONS BOARD him leave. Locklear would estimate Johnson was in the beaming department for 10 minutes. Locklear testified, with respect to employee Walter Alexander going to other departments, that he did not see him in any other department, but rather Alexander had told him at various times that he was going to visit his wife in another department. Locklear acknowledged on cross-examination that he had never seen Gene Mapp in another department visiting any other employee, but rather was told Mapp visited someone in another depart- ment. Estelle Locklear, the wife of Kenneth Locklear, was called as a rebuttal witness by the General Counsel, and in her testimony stated her husband came to her work area approximately once a month. Estelle Locklear said Beaming Supervisor Hingson had seen her husband there as well as had Extrusion Shift Supervisor Dan Jones. Es- telle Locklear testified her husband was wearing a union button the night he was given a warning. Beaming Supervisor Hingson testified he had an occa- sion on April 25, 1980, to observe a man in his depart- ment talking to employee Estelle Locklear at a time when she was supposed to be working on her job. Hing- son placed the time at approximately 11:30 p.m. Hingson approached the person whom he did not know and asked if he could help him in any way. The individual, whom he later learned was Kenneth Locklear. told him that he was talking to his wife. Hingson told Locklear his wife was still working and he would have to wait for her at the timeclock. Hingson continued to walk the shift with oncoming Supervisor Dan Jones. Approximately 5 min- utes later, Hingson came by the area where Estelle Locklear and her husband were and Kenneth Locklear had not left. Hingson commenced to approach Kenneth Locklear, but just before he got to him Locklear left. Hingson stated he called Supervisor Lynn Duck to in- quire of him if he had an employee named Kenneth Locklear in his department. Hingson told Duck he had asked Locklear to leave the beaming department and he would not. According to Hingson, Locklear was not wearing a union button on the night he observed him in his department. Hingson testified he had seen employee Elton Johnson in his department on occasion, but that Johnson had left when he asked him to. Extrusion Shift Supervisor Jones corroborated the testimony of Hingson. Supervisor Lynn Duck stated he was contacted in the early morning hours of April 26, 1980, by Beaming Su- pervisor Hingson and was asked by Hingson if he had an employee, Kenneth Locklear, in his department. Hingson told Duck Locklear had been in his department but would not leave when asked. Duck contacted Extrusion Supervisor Peterson and issued a warning to Locklear for interfering with another employee and for not leav- ing a department when he was asked to by the depart- ment supervisor. Extrusion Supervisor Peterson corrobo- rated Duck's testimony. Counsel for the General Counsel established a prima facie case with respect to the disciplinary warning given to employee Locklear. Locklear had been active for the Union. The Respondent through Extrusion Supervisor Peterson on April 15. 1980, had unlawfully interrogated Locklear, and it was shortly thereafter that he was disci- plined. Thus, the burden shifted to Respondent to dem- onstrate the same action would have taken place even in the absence of Locklear's protected conduct. I find Re- spondent met that burden. First, Locklear's testimony on direct that other em- ployees had visited plant departments without being dis- ciplined simply did not stand up under cross-examination. Locklear only knew secondhand of other employees having been in other departments at Respondent. Al- though Supervisor Hingson acknowledged Elton John- son had been in the beaming department, he had left when he was asked to. I do not credit Locklear's testi- mony that Johnson was still in the department when he left the beaming department on the night in question be- cause it is not borne out by the timecards of Johnson and Locklear. The timecards indicate Johnson clocked in at his department at 11:51 p.m., whereas Kenneth Locklear clocked in at 11:54 p.m. Notwithstanding this evidence, Locklear would contend that Johnson was still in the beaming department at the time he [Locklear] left and that Johnson could not have departed the beaming de- partment without Locklear's having seen him. Locklear did not deny having been in the department, neither did he deny remaining in the department after being told to leave. I conclude and find that Locklear was disciplined for having refused to leave a particular department of Respondent where he did not work after being requested to do so and for visiting the department without the ap- proval of the department supervisor. I find the discipline would have been administered to Locklear even in the absence of any protected conduct by him. I therefore recommend that paragraph II11 of the complaint in Case 10-CA-16016 be dismissed in its entirety. 5. The suspension of employee James A. White The General Counsel at paragraph 13 of the complaint in Case 10-CA-16016 alleges that Respondent unlawfully suspended its employee James A. White on or about April 22, 1980. The Respondent admitted giving employee White a 3- day suspension commencing on April 22, 1980, but con- tended it did so for good cause. White, a loom fixer at Respondent, became aware of the union campaign in March 1980. White joined a union committee. wore a union button, and handed out union leaflets on four or five occasions at Respondent's plant. The first time White handed out union leaflets, which was on March 30, 1980, he was seen doing so by Weav- ing Superintendent Gerald Lewis and Textile Superin- tendent B. J. Armistead. White was also present on April 9, 1980, when employees were told by the plant guard that they could not pass out leaflets on Respondent's property. White stated he first wore his union button on April 9, 1980. Oil April 9 WVhite testified that Respondent ran a tool- box check and found he had two shuttles that belonged to Respondent in his toolbox. White testified he was given a warniing for having the shuttles in his toolbox. White stated that w as the first warning he had been givei in 11 years at Respondent. White testified there had been toolbox checks previous to the one on April 9. 36h4 AM()C() F:ABRICS Co and on those occasions he had excess parts in his toolhbox without any disciplinary action being taken against him. According to White, the latest incident prior to the April 9 one was 2 or 3 years previous. 2 White testified he received a warning on April 22. 1980. He described the events leading up to his warning as follows: "'Well, I was sharpening my screwdriver on the belt sander anid Gerald Lewis and J. C. Dixon came in and caught me using the belt sander without goggles." White stated that W'easing Superintendent Lewis told him to go to his office. Lewis got White's immediate su- pervisor and they gave White a 3-day suspension for using a belt sander without safety goggles. White said he had sharpened tools 6 or 8 months earlier without safety glasses in the presence of Process Control Engineer Dixon. On cross-examination White acknowledged that he had stated in his pre-trial affidavit to the Board with re- spect to sharpening his screwdriver on a belt sander, "I was supposed to wear safety glasses, but I left them behind in my tool box." White also acknowledged he had stated in his pre-trial affidavit, "A person could be seriously injured doing this work without glasses." White claimed in his pre-trial affidavit that he never used safety glasses. White's testimony that he had never received a warn- ing prior to the one on April 9, 1980, for having two shuttles in his toolbox is somewhat suspect. Respondent Exhibit 32, which was a warning given to James A. White on February 12, 1977, stated it was for having committed the unsafe act of blowing off a loom without eye protection. The warning was signed by White. This factor taken in conjunction with the overwhelming evi- dence that Respondent took appropriate action with re- spect to employees who violated safety regulations causes me to conclude that White misstated the truth when he indicated he had sharpened screwdrivers before in the presence of supervisors without any action being taken against him. I simply do not believe White's testi- mony in that respect and, accordingly, discredit it. White had union activity commencing in early April 1980. His union activity was known to Respondent. Shortly after White handbilled for the Union at Re- spondent, he received disciplinary warnings. One of the warnings, however, is not in issue in this proceeding. I conclude that the General Counsel established a prima facie case sufficient to support an inference that protect- ed conduct was a motivating factor in the Respondent's decision to discipline White. However, I conclude and find Respondent met its burden under Wright Line, a Di- vision of Wright Line, Inc.. 251 NLRB 1083 (1980), of demonstrating that the same action would have taken place against White even in the absence of protected conduct. White acknowledged he was sharpening a screwdriver without eye protection and was aware such conduct could result in injury. Respondent provided each of its employees a booklet entitled "Safe Practices Guide" (Resp. Exh. 12), and at page 22 thereof it states: "Always " Counscel filr the iceneral C onilsel stalled al ihe hearing thait she .as lnol asking flr a finding of a in' uiolih ll n f Ihe Al .Ailh r'epct' Ito rht April 9, 198(. th lblho . .r iliing gi cic n \\hilt wear safety glasses, goggles or face shield, designed for the type work when operating any machines." Further, Employee Relations Manager Sego testified, and I credit his testimony in that respect, that Respondent in October 1977 had posted a notice to all employees concerning the use of safety glasses in the shop. (Resp. Exh. 14.) Loom fixer Jerry Harris testified in the 10 years he had worked for Respondent it had been a requirement to wear safety glasses when working in the shop area. Other employees testifying of the requirement of safety protection were Buck Browning. Monroe Stone, Allen Summerlin, and Gary Rooks. Respondent demonstrated it had enforced safety rules before and after White had received his dis- ciplinary warning. Respondent demonstrated its consist- ent policy by the disciplinary warnings given to Orin Favors (Resp. Exh. 25), Allen Hollis (Resp. Exh. 26), J. A. Rolin (Resp. Exh. 27), Jimmy Ails (Resp. Exh. 28), William Miller (Resp. Exh. 29), Phillip Lynch (Resp. Exh. 30), Collis Roundtree (Resp. Exh. 31), Myrtle Bryant (Resp. Exh. 33), and Ulysses Gear (Resp. Exh. 34). 1 therefore conclude and find Respondent did not violate the Act when it suspended its employee James Albert White for 3 days commencing on April 22, 1980. I therefore recommend paragraph 13 of the complaint in Case 10-CA-16016 be dismissed in its entirety, inasmuch as it is not unlawful for an employer to establish and uni- formly enforce work rules for safety. 6. The changed work assignment of employee Elijah Bailey III The General Counsel alleges at paragraph 14 of the complaint in Case 10-CA-16016 that Respondent on or about April 9. 1980, changed the work assignment of its employee Elijah Bailey III by removing him, contrary to past practice, from the position of substitute lead opera- tor because of his membership in and activities on behalf of the Union and because he engaged in concerted activi- ties with other employees for the purposes of collective bargaining and other aid and protection. Respondent admitted it demoted Bailey from a tempo- rary lead operator position on or about April 9, 1980, but contended it did so in accordance with its established practice of placing the most senior operator in lead oper- ator positions when lead operators were absent for an ex- tended period of time. Elijah Bailey became aware of the Union in April 1980. He passed out union leaflets in the plant parking lot, attempted to have employees sign up with the Union and attended meetings of the Union held in the homes of fellow employees. Bailey passed out among other union leaflets what was received in evidence as General Coun- sel's Exhibit 3, which was a list of employees of Re- spondent who favored the Union. Bailey's name was on the union leaflet. Bailey was unable to recall exactly when General Counsel's Exhibit 3 was distributed to fellow employees. Supervisor Duck, as set forth else- where in this Decision, admitted asking Bailey how he felt about the Union on April 8, 1980. In the same con- versation, Supervisor Duck told Bailey that unions con- sisted of organized crime and could only survive by taking members' money through union dues. Duck also I)tlCISIO)NS (): NA'l'()NAI. I.AB)R RIE.AI()NS BO()ARD told Bailey, if a problem arose, an employee could no longer go to his supervisor with it, but would rather have to go to a union person. Bailey testified Employment Manager Gene Shearl asked him on April 9, 1980, if he thought the Union would buy him a tackle box. Bailey's regular job was that of an extrusion operator. However, when a lead operator was absent, Bailey testi- fied he filled in as the lead operator. A lead operator's position paid 30 cents more per hour than did the opera- tor's job. Bailey testified that on April 8, 1980, his shift supervisor, Virgil Mathis, asked him if he would fill in for leadperson Buck Westbury, who would be out due to a sickness approximately 6 weeks. Bailey reported for work on April 9, 1980, and performed the job of lead op- erator. This was the first time Bailey had worn his union button. At the end of the shift, Extrusion Supervisor Mathis told Bailey he wanted him to operate machines 5 and 6 the following day, April 10, 1980. On April 10, 1980, Bailey testified he did not fill in as a substitute leadperson, but rather instead a fellow em- ployee, John Walker, filled in. Bailey inquired of Extru- sion Supervisor Mathis why the change to John Walker from him, and was told by Mathis it was because he had five or six cutoffs. 2: Bailey protested saying he did not have five or six cutoffs. Extrusion Supervisor Mathis told him to go to the office. Bailey told Mathis in the office that he felt he was being done wrong. Bailey was never shown his record with respect to whether he actually had five or six cutoffs. Bailey has never filled in as a leadperson since that time. Bailey stated that since that time his younger brother, Glen Bailey, and Joe Walker had filled in as substitute lead operators. Bailey testified none of those who had filled in as substitute leadpersons had done so other than himself prior to his wearing a union button on April 9, 1980. Kenneth Locklear testified Bailey had been used as fill-in lead operator ever since he, Locklear, had been at Respondent up until the day Bailey wore his union button on either April 8 or 9, 1980, and that since that time someone else had filled in on each occasion when there was a need for a substitute lead operator. Accord- ing to Locklear, John Walker had never worked as a fill- in lead operator prior to Elijah Bailey's wearing a union button. Extrusion Supervisor Mathis testified that on April 8, 1980, he temporarily assigned employee Elijah Bailey to the position of lead operator. Mathis did so because an employee, Francis Palirino, had told him that the regular lead operator, Buck Westbury, would be out that day. According to Mathis, he was informed the following day, April 9, by employee Palirino that Westbury was going to be out for an appendectomy, and it was at that point he discussed with his immediate superior, Supervi- sor Lynn Duck, the fact that Westbury would be in the hospital or away from work for approximately 6 weeks. According to Mathis, he and Duck checked the employ- ees seniority status and John Walker was the senior oper- ator and as such it was decided to have him fill in as lead ee Baile defined a cutoff as those incidrent where material did not meet specifications requiring it to be run through the mill again operator instead of Elijah Bailey because Walker was the senior operator. Mathis testified it was Respondent's normal procedure to have the senior operator fill in as lead operator if the lead operator were going to be off "for a lengthy period of time." Therefore, Mathis in- formed Bailey to return to lines 5 and 6, that John Walker would be filling in as lead operator. Mathis ac- knowledged that April 9 was the first time John Walker had ever filled in as a lead oeprator on the line that Elijah Bailey worked on. Supervisor Duck testified Mathis contacted him with respect to a fill-in lead operator for employee Buck Westbury and that John Walker was chosen because Elijah Bailey did not have sufficient seniority to fill the position over Walker. There are numerous factors which indicate that the General Counsel has established a very strong prima facie showing to support an inference that protected con- duct was a motivating factor in the Respondent's deci- sion to remove Elijah Bailey from the position of lead operator contrary to past practice. I credit the testimony of Bailey that he was told to assume the position of sub- stitute lead operator on April 9 and further that he was told it would be for a period of 6 weeks. I also credit Bailey's testimony that when he protested the following day to Supervisor Mathis, Mathis told him he was being taken off the job because he had too may cutoffs, a con- tention which Bailey strenuously objected to. It was later advanced by Respondent that Bailey was taken from the substitute lead operator position because he was not the most senior employee to fill in. It is clear Respondent shifted its reason for removing Bailey from the position of substitute lead operator. Further, rather conclusive evidence of Respondent's unlawful motivation was dem- onstrated by the fact that this was the first occasion ever for Walker to fill in as lead operator on Bailey's line. Re- spondent's failure to allow Bailey to fill in as lead opera- tor also coincided with the day Bailey commenced to wear his union button. I credit Bailey's testimony that this was the first time he had worn a union button. It is clear Respondent had animus toward the Union and un- lawful conduct by Respondent had been directed specifi- cally toward employee Bailey by Supervisor Duck in that Duck admitted asking Bailey questions which consti- tuted coercive interrogation, and I have concluded else- where in this Decision Duck also threatened Bailey that he could no longer take his problems to his supervisor if a union came in. The Respondent has failed to demon- strate in any manner that the same action would have been taken against Bailey in the absence of Bailey's pro- tected conduct. Respondent's attempted justifications with respect to Bailey were nothing more than a pretext. I have considered Bailey's situation in light of Wright Line, a Division of Wright Line, Inc., supra, even though it is essentially a pretext case because, at footnote 13, the Board stated: "Still an additional benefit which will result from our use of the Mt. Healthy test is that the perceived significance in distinguishing between pretext and dual motive cases will be obviated." 24 2' I have considered the situati, o under Wright Line while at Ihe %ame time being mindful if Member Jenkins' comments in Ihe Bond Prers. In., C'ontinued AMO()C() FABRICS CO I therefore conclude and find Respondent violated Section 8(a)(3) and (I) of the Act when on April 9, 1980, it changed the work assignment of employee Elijah Bailey III by removing him contrary to past practice, from the position of substitute lead operator. 7. The alleged more onerous working conditions imposed on Clemenstine Hendsley and her subsequent leave of absence The General Counsel alleges at paragraphs 15 and 16 of the complaint in Case 10-CA-16016 that Respondent on or about April 9, 1980, imposed more onerous work- ing conditions on its employee Clemenstine Hendley by denying her, contrary to past practice, the assistance of a fellow employee in her job on reroll table 8, thus causing employee Clemenstine Hendley to take a leave of ab- sence because of the more onerous working conditions imposed on her; and that Respondent imposed more onerous working conditions on Hendley and caused her to take a leave of absence because of her membership in and activities on behalf of the Union and because she en- gaged in concerted activities with other employees for the purposes of collective bargaining and other mutual aid and protection. Employee Hendley testified she had worked for Re- spondent from February 1969 until June 11, 1980. For her first 8 years at Respondent she worked as a heat set inspector, and the last 2 years she had been a burling em- ployee under the supervision of Howard Bennett. Hend- ley became aware of the union campaign in March 1980. She attended approximately 11 or 12 union meetings, starting about the middle of March 1980. She talked to 30 to 40 employees about joining the Union, signed the union committee sheet, and wore a union button. As is set forth elsewhere in this Decision, Respondent through Weaving Shift Supervisor Bennett inquired of Hendley how she felt about the Union. Hendley expressed to Ben- nett that she had had 8 years' working experience under a union in piecework and was interested in knowing how it would work out in mill-type work. Further, as set forth elsewhere in this Decision, Weaving Shift Supervi- sor Bennett told Hendley she could no longer go to her supervisor with her personal problems if the Union came in. Hendley testified she attended a union meeting at the King Frog Restaurant in Adel, Georgia, on April 8, 1980, and, as she was getting out of her car to go into the meeting, she saw and spoke with Employee Relations Manager James Sego. It was also on April 8, 1980, that Hendley signed a union card and obtained her union button. Hendley testified that, following the union meeting that afternoon, she went to work and was met at the front by Weaving Shift Supervisor Bennett who told her he wanted to see all of the burling employees in his office. Hendley was wearing her union button at the time. Bennett told Hendley and the other burling em- ployees, "I'm going to start rotating you girls back and forth to the reroll table." Bennett gave as a reason that 254 NLRtI 1227. and iv Star -r 4iPr ght Corporation. 255 Nl.RH 275 (198 1) in .hich he indicates that in pretexrt calse it is not necevsars to rely on the principles. of 4righr Line. work was slack and stated to Hendley that she had been going pretty regularly to reroll anyway. Hendley ac- knowledged that she had been doing reroll work regular- ly for a while because the other employees did not seem to like to go over there and she did not mind. Hendley told Bennett later that shift as he was walking back to her hurling table with her that she hoped he would take no offense by it but she had decided she had to do what she had to do and that she was going to support the Union. When Hendley reported to work the next afternoon, Weaving Shift Supervisor Bennett assigned her to work reroll table 8. Hendley informed Bennett that she was not feeling well, that she had a physical problem, that her hemorrhoids were bothering her. Hendley said she thought Bennett would take her off the reroll table and put her back on burling after she told him about her hemorrhoids, but, according to Hendley, "he didn't, so . . they brought me a lot of small rolls." Hendley testi- fied that the doffer who worked in her area helped her with the rolls getting them on the reroll table. Later that same shift. the Hyster lift driver brought three large rolls, 72 inches in width, for her to work on. According to Hendley, the first two weighed about 1,200 pounds and the third weighed approximately 2,500 pounds. Upon returning from dinner break, Hendley said the doffer (Calvin Mapps) who had always assisted her came to her table and told her that he had just gotten the word not to help her load her table anymore. Hendley attempted to manage without the assistance of a doffer. Hendley stated one of the rolls was lying approximately 6 feet behind her table and when she went to move the roll, she realized "I couldn't even budge it." Hendley testified that being as stubborn as she was, "I backed up to it and pushed it with my bottom." Hendley stated she finally got the roll to her table, but could not get it up on the table. Hendley waved down a Hyster lift driver and he assisted her in getting the roll on the hydraulic lift to put it up to the table. The following day Hendley consulted a physician who told her she was ruptured and would need surgery. The following morning she had surgery and was away from work for 8 weeks. Hendley returned to work on June 9, 1980. Calvin Mapps testified that he was a reroll doffer on the same shift with Clemenstine Hendley and worked for Weaving Shift Supervisor Bennett. The duties of a reroll doffer, according to Mapps, was to take a roll off the table and put on a new spool, that the next roll would be rolled onto it. Reroll doffer Mapps stated that, when he got a request to help one of the women employees, it would take less than a minute to assist them. Mapps re- called having a conversation with Weaving Shift Super- visor Bennett on the last night Hendley worked prior to her checking into the hospital for an operation the fol- lowing day. Bennett talked to Mapps about Mapps' as- sisting the reroll operators. Mapps was told to do his job; "He told me that the job I was helping her do that wasn't my job. My job was to take the rolls off the ma- chine." Bennett told Mapps he was to help the reroll op- erators only "if they really needed it." Mapps testified it I)t:C ISI()NS (): NA I()NAI. I.AI()R RI l.AII()NS O()ARI) would take approximately 5 pounds of pressure to roll one of the rolls upon the reroll table. Mapps testified that, prior to Weaving Shift Supervisor Bennett speaking with him about not assisting the women reroll operators, it was his practice to assist them any time they asked. At the time Mapps xwas given the instructions by Bennett, he was assisting employee Hendley. This was the first time according to Mapps. that Bemnett had ever said anything to him about assisting the reroll operators, although Ben- nett had seen Mapps assist Ifendley on occasions previ- ous to this. Mapps testified that, if the bar in a roll were not straight, a woman employee would need a doffer to help her get it straight and put it behind the machine be- cause "a woman couldn't do it." Mapps testified that fol- lowing his conversation with Weaving Shift Supervisor Bennett, Hendley asked him to help her with a roll and he told her "that Howard [Bennett] had told him that wasn't my job. My job was to take them off." Mapps said he refused to help Hendley because "well, I was afraid, you know, of losing my job." Weaving Shift Supervisor Bennett testified he was having some problems with the doffer on the shift Hend- ley worked on in that he was avoiding his own job help- ing out the inspectors and others with their jobs. Bennett identified the employee as Calvini Mapps. Bennett testi- fied that Hendley sought assistance on one occasion around 10 p.m. on the night in question, April 9, and that he assisted her at that time. He testified she did not men- tion to him that she was having any problems with her hemorrhoids. Bennett stated he learned on April 10, 1980, that Hendley was in the hospital for surgery and that she did not return to work until June 9, 1980. Employee Hendley impressed me as a witness who was telling the truth and as such I credit her testimony. I accept as accurate, however, Respondent's records with respect to the weight of the rolls that Hendley was re- quired to move on April 9. The fact the rolls may have seemed to weigh 2,500 pounds does not detract from the overall credibility of Hendley's testimony. I find that the General Counsel established a clear prima facie showing sufficient to support an inference that protected conduct was a motivating factor in Re- spondent's decision to place more onerous working con- ditions on employee Hendley. There is no question but that Respondent had unlawfully interrogated Hendley through its supervisor and agent, Weaving Shfit Supervi- sor Bennett. Further Bennett had threatened employees, especially Hendley, that she could no longer take her problems directly to management if the Union came in. Further, Hendley wore her union button for the first time on the date Respondent changed its past practice of allowing a reroll doffer to assist Hendley in her job on the reroll table. I conclude it was no mere coincidence that Weaving Shift Supervisor Bennett discussed with reroll doffer Mapps his job duties on the date Hendley wore her union button to work. Mapps clearly indicated it had been his past practice to assist Hendley and that this was the first occasion Bennett had ever said any- thing to him about the assistance. The more onerous working conditions were not the fact that Hendley was assigned to do reroll work. She clearly had performed that task in the past. The more onerous working condi- tions were simply that Respondent learned employee Helidley had a medical problem and at that point re- moved from her the assistance she previously had been receiving with, in my opinion, an eye toward physically driving employee Hendley from the employment of Re- spondent because of her union and concerted activities. As indicated elsewhere in this Decision, other of the chief' adherents of the Union may have provided Re- spondenlt with valid reason to discipline or discharge them. However, in the case of Hendley, she had done nothing other than attempt to exercise her rights which were protected by the Act. I conclude and find that Re- spondent did not demonstrate that the same action would have taken place even in the absence of the protected conduct of Hendley. The defense of Respondent with re- spect to Hendley was in reality untrue and as such con- stituted nothing more than a pretext. o2 I therefore con- clude and find Respondent violated Section 8(a)(3) and (I) of the Act when on April 9, 1980, it imposed more onerous working conditions on its employee Clemenstine Hendley by denying her, contrary to past practice, the assistance of a fello\w employee in her job on the reroll table. 1fcnidley testified she returned to work on June 9, 1980), and that her doctor sent along a statement that she wxas to do light work for a few days. Hendley testified she arrived at work and proceeded by checking with Re- spondent's nurse in order to obtain clearance to return to work. When Hendley told Plant Nurse Roberts that she had the restrictions for a few days, Nurse Roberts told her that Respondent's physician, Dr. Rudolph, had placed a statement in her file imposing a weight-lift limi- tation of 25 pounds. Plant Nurse Roberts informed Hendley that this was a result of Hendley's having a kidney removed 2 years earlier. Plant Nurse Roberts gave Hendley a written statement regarding the restric- tions and Hendley proceeded to give it to Weaving Shift Supervisor Bennett. Bennett told Hendley to work the burling table that day. Bennett asked Hendley if she would be able to pull bad "slubs" out, and Hendley in- formed him that she would. The following day Hendley was called into the office by Weaving Shift Supervisor Bennett, who told her he needed to talk with her con- cerning the 25-pound weight limitation. Hendley com- plained she did not know anything about it. Bennett told Hendley he would have to call the doctor who had done the surgery on her (the kidney surgery). Hendley in- formed Bennett he would have to call the University of Florida inasmuch as that was where she had her kidney surgery done 2 years earlier. Bennett then took Hendley to Employment Manager Shearl's office. Upon arriving at Shearl's office, he (Shearl) told Hendley that they were concerned about the 25-pound weight limitation placed on her. Hendley told Shearl she knew nothing about it, and Shearl called Plant Nurse Roberts. Roberts informed Shearl that Dr. Rudolph had made the decision that Hendley was not to do any lifting in excess of 25 pounds. At this point, Shearl asked Hend- eIy to allow him to make a tape of what happened on 2" I have analyzed Hendley's situation under Ihe principles of Wright in,, upra, haseld o, tile Hbord'i cornmrlenlt in fn 13 of that decisilon h368 AMOCO FABRICS CO the last night she worked in April. Hendley told Shearl she did not trust him and would rather have it written out. Shearl wrote a statement and Hendley signed it. Shearl then informed Hendley he was going to have to lay her off until a job came open which would not put her in any jeopardy. Hendley complained saying she did not understand this, that she had worked for 2 years since the surgery on her kidney with no problem. Shearl told Hendley to call him every I or 2 weeks to find out if any job was open that she could perform. Hendley tes- tified that her burling job would not require lifting, and that she enjoyed it because it did not hurt her. Shearl in- formed Hendley that it required more than a 25-pound pull to get the material moved about on the burling table. Hendley faithfully called Respondent for several weeks attempting to find out if they had any job she could work at. She was told each time they did not. Hendley testified she felt Respondent enjoyed her having to beg for a job and that she got tired of it and quit call- ing. Plant Nurse Linda Roberts testified that Hendley had a weight limitation and a no-climbing restriction placed on her in May 1978. Plant Nurse Roberts stated that when Hendley returned from her operation on June 9. 1980, she had a discussion with Hendley's supervisor about the weight restriction. The weight restriction, ac- cording to Plant Nurse Roberts, had been placed on Hendley because of her having had an aneurysm and ear- lier surgery. Roberts testified she assumed the weight limitation was placed on by Respondent's doctor "appar- ently from what he knew of her diagnosis, what was done at Chands Hospital." Plant Nurse Roberts did not know if Dr. Rudolph had discussed the weight limitation with Hendley in 1978. Employment Manager Shearl testified he placed em- ployee Hendley on a leave of absence on June 9, 1980. because upon her return to work it wvas discovered she was under a restriction not to lift over 25 pounds. Shearl stated it was Respondent's policy to provide employees with work commensurate with their medical restrictions if any work were available which they could perform, but if not, Respondent placed the employee on a leave of absence. Shearl testified that Employee Relations Man- ager Sego had informed him of the weight restriction on Hendley. Shearl discussed the restriction with Hendley on June 11, 1980. Shearl testified, "1 told her that she was operating under a restriction not to lift over 25 pounds and she would not be able to continue in the job she had been on under that restriction." Employment Manager Shearl testified that employee Hendley protest- ed, wanting to know why all of a sudden was it that she could not handle the job. Shearl told Hendley that "we had just discovered the restriction. Also, that it was the first time to my knowledge anyone had been in the medi- cal file since 1978." Shearl stated the hurling job had over the years become physically heavier than it had previously been. Shearl testified Hendley wanted to know why she could not remain on hurling, and he ex- plained to her that it would be preferential treatment toward her and that Respondent could not do that. I find the General Counsel established a prima facie case under the Wright Line, supra, principles. The Re- spondent failed to meet its burden of showing that the action taken against Hendley would have taken place even in the absence of protected conduct. It is quite clear that Respondent permitted employee Hendley to function for 2 years as an employee without attempting to enforce the weight restriction placed on her by Dr. Rudolph. The Respondent's contention, "through acci- dent or oversight, Respondent was not aware of the lift- ing restriction that Hendley's physician placed on her ac- tivities in 1978 or that Hendley's duties as a 'burler' vio- lated the 25-pound weight restrict," I find to be unten- able. As demonstrated by the various exhibits presented at the hearing in this case, Respondent kept meticulous records and knew its operation from top to bottom. For Respondent to come at this point and plead that it was an accident or oversight that it did not know the restric- tion placed on employee Hendley, or that it did not know, that a burler job would require more then 25- pound weight exertion is simply unbelievable and I reject it. I conclude that upon the return of Hendley to em- ployment in the early part of June, Respondent was looking for any reason it could find to rid itself of Hend- ley. The light duty placed on Hendley as a result of her hemorrhoidectomy was for 2 weeks only and she would then have been able to assume the duties she had per- formed for 2 years under her previous weight restriction. Respondent did not in any manner rebut the contention of the General Counsel that if reinstated Hendley could perform her burling job or even a reroll job if she were provided the assistance of a doffer to help her move rolls as she had been allowed for the past 2 years. I therefore conclude and find that Respondent violated Section 8(a)(3) and (1) of the Act when it caused Hend- ley to take a leave of absence because of the imposition of more onerous working conditions on her as alleged in paragraph 16 of the complaint in Case 10-CA-16016. 8. The discharge of employee Abel C. Braswell The General Counsel at paragraph 17 of the complaint in Case 10-CA-16016 alleges that Respondent on or about April 17, 1980, discharged and thereafter failed and refused to reinstate its employee Abel C. Braswell because of his membership in and activities on behalf of the Union and because he engaged in concerted activities with other employees for the purposes of collective bar- gaining and other mutual aid and protection. The Respondent admitted it discharged Braswell on April 17, 1980, but contended it did so for good cause. Braswell commenced work at Respondent apparently in 1972 and worked until his discharge in April 1980. Braswell became aware of the Union approximately 3 weeks before he was fired. Braswell testified he wore a union button commencing about 10 to 12 days before he was fired and wore it every day until he was fired. Bras- well ,was employed as a warp hanger, and stated that on the day of his discharge W'arping Department Supervisor Betty Tucker told him that Process Control Engineer Dixon had observed him using the wrong wrench on a xwarp he xwas removing Tucker told Braswell that he DECISIONS OF NATI()ONAL LA13OR RELATIONS 3BOARD should have been using a ratchet wrench when in fact he was using an open-end wrench.26 Braswell told Tucker he could not use the ratchet wrench because the bolt was too close to the beam head. Braswell testified that he was then taken to the office where there were a couple of other individuals present; namely, Weaving Su- pervisor Robert Tucker and Weaving Superintendent Gerald Lewis. According to Braswell, Weaving Superin- tendent Lewis told him that he hated to do it, but he was going to have to fire him for using the wrong wrench and not obeying orders. Braswell testified that prior to his discharge he had re- ceived other warnings. Braswell testified that about 3 to 5 months prior to his discharge he had received a warn- ing for not calling and previous to that, by approximate- ly 2 years, he had received a warning for not reporting for work. Braswell testified he knew of no other employ- ees who had been disciplined or fired for using the wrong wrench. Braswell denied that he was actually using the wrong wrench inasmuch as he claimed the ratchet wrench would not fit the bolt or nut on the par- ticular loom he was working on at the time. On cross-examination Braswell acknowledged he had received a warning in 1979 for too many garnishments on his paycheck. Braswell also acknowledged receiving a warning in February 1980 for failure to wear protective gloves that resulted in a finger injury. Braswell recalled attending a safety meeting with Warping Department Su- pervisor Tucker and other warp hangers wherein Tucker discussed the dangers of using the open-ended wrench because it resulted in too many hand injuries, and that it was he (Braswell) who suggested that a box-type ratchet wrench would prevent hand injuries. As a result of that meeting, Respondent purchased ratchet type wrenches and made them available to the warp hangers. Blraswell recalled two hand injuries he had received while work- ing at Respondent. In addition to the two hand injuries, Braswell testified he would get pieces of steel in his hand "and like that." Braswell acknowledged on cross-exami- nation that on April 16, 1980, the day before he was fired, Warping Department Supervisor Betty Tucker had observed him removing some beam gears with the old open-ended wrench and she told him that the warp hangers had asked for the new wrenches and that Re- spondent had gotten them for the warp hangers and he should use them. Braswell acknowledged that Tucker at the time proceeded to his toolbox, obtained the correct wrench for him, brought it to him, told him to use it, and that he did in fact use it. Braswell also acknowl- edged that the very next day, about noontime, Tucker observed him using the old wrench again, and she re- minded him that she had just talked to him about it the day before. Tucker asked Braswell where his ratchet wrench was, and again went to his toolbox, obtained it and brought it to Braswell. Braswell acknowledged that shortly after Tucker did this for him, he was taken to the office and terminated for his failure to use the safety wrench. ' Appiarerlt aI rittchcl Vrentlchl is ii solid eclt secd .1rvi cnh thit fits, o'cr it bolt l o rlt he% ti)r is ppi,, cdr t io , m eIIch kis ig. i,.' ti titl i uni- clles, all+ Ol. end Braswell stated the ratchet wrench would not fit on the particular loom he was working on, thus necessitat- ing the open-ended wrench. Warping Department Supervisor Tucker testified that she gave Braswell a written warning on February 22, 1980, for his failure to wear protective gloves which fail- ure resulted in an injury to the little finger of Braswell. Tucker further testified that on April 8, 1980, employee Braswell received a 3-day suspension for mixing different colors of yarn. Tucker stated that, once yarn was mixed, it was not reclaimable, whereas if it were not mixed, it was reclaimable. Tucker testified that she conducted a safety meeting in February 1980 with the warp crew in- cluding employee Braswell and that the warp crew rec- ommended that ratchet wrenches be purchased by Re- spondent to remove beam gears to avoid injury to the hands of the warp crew. Warping Department Supervisor Tucker testified she observed Braswell on April 16, 1980, removing some beam gears without using the ratchet wrench and she spoke with him about it, telling him Respondent was good enough to get the safer wrenches for use by the warp crew, and she expected them to use the safer wrenches. Tucker stated Braswell had the correct wrench in his toolbox. She thereafter saw him use it. On the following day, April 17, she again observed Braswell removing beam gears with the wrong wrench. Tucker testified she asked Braswell why he was not using the new wrench, and he responded he had not taken time to get it. Tucker asked Braswell where the wrench was, and he told her it was in his toolbox. Tucker went to Braswell's toolbox, got the wrench, brought it back to Braswell, and he placed the gear on while she observed him do so with the ratchet wrench. Tucker testified that she told Braswell she would talk with him later about it. Warping Department Supervisor Tucker consulted with Weaving Superintendent Lewis and recommended to him that Braswell be terminated. Lewis told Tucker to send Braswell home, and to instruct him to return the next day. The following day Braswell was terminated. Tucker recalled Braswell having at least six hand inju- ries during the time he had worked for her. Weaving Su- perintendent Lewis corroborated the testimony of Tucker with respect to Lewis' part in the termination of Braswell. Employment Manager Shearl testified he conducts an exit interview with each employee leaving the employ- ment of Respondent. Shearl testified if the employee was separated voluntarily, Respondent inquired of the reason why the employee was leaving and asked for suggestions on how to improve Respondent. If the employee was being discharged, an attempt was made to ascertain if the employee understood why they were being discharged and to review the progressive disciplinary system with the employee. Shearl conducted such an exit interview with employee Braswell and asked him in the interview if he knew why he was being discharged. According to Shearl, Braswell stated he had been discharged because he had not used the correct wrench which Supervisor Tucker had bought for him. Shearl asked Braswell if that 370 AM()OC() :ABIRICS C() were true, and Braswell admitted he had not used the wrench in removing the beam gear, that the wrench was in his toolbox, that he simply had not gone to get it. Shearl testified he had never seen Braswell wear a union button. Employee Pat Warren testified that on April 13. 1980, he was in the men's restroom at Respondent's plant when a fellow committee member handed him a union card and stated to him at the time that the card was Abel Braswell's. Warren testified that Weaving Supervisor Robert Tucker was standing about 2 feet from him at the time. Weaving Supervisor Robert Tucker testified that on April 13, 1980, employee Pat Warren's supervisor asked him to check and see if employee Warren was in the restroom. Employee Warren, according to Tucker, had left his job and his supervisor was looking for him, and since his supervisor was a woman, she had asked Tucker to check the men's restroom to see if Warren was in there. Tucker testified he opened the door to the rest- room, observed Warren washing his hands, turned around, left, and told Warren's supervisor that Warren was in the restroom. Tucker testified he did not enter the restroom nor did he see anything being handed from one employee to another. As far as establishing knowledge on the part of Re- spondent of any union activities by Braswell, I conclude and find that the meeting in the restroom on April 13 took place as testified to by Tucker and specifically dis- credit Warren's testimony to the contrary. As a result thereof, I conclude that knowledge of Braswell's union activities, if any, could not be attributed to the Respond- ent based on the April 14, 1980, bathroom incident. The fact that employee Hancock testified she worked near Braswell every day and never saw him wear a union button, or that Employment Manager Shearl testi- fied he never saw Braswell wear a union button, does not establish conclusively that Braswell did not wear a union button. I credit Shearl and Hancock's testimony that they never observed Braswell wearing a union button; however, I am persuaded that this does not con- stitute conclusive proof that Braswell never wore one. I have a great deal of difficulty in crediting any testimony of Braswell that is contradicted or uncorroborated. My impression of Braswell's testimony was not so much that of any deliberate misstatement, but more in the nature of a witness who was highly confused as to what had taken place particularly with respect to the events surrounding certain warnings Braswell received and the events sur- rounding the day of his termination. Notwithstanding my conclusion that Braswell's testimony is unreliable primar- ily based on the apparent confusion of Braswell with re- spect to events surrounding him, I do conclude that his testimony was clear and convincing with respect to his having worn a union button. I therefore conclude that Respondent had knowledge of Braswell's union sympa- thies prior to his discharge on April 17, 1980. Therefore, I conclude that the General Counsel established a prima facie case sufficient to support an inference that protect- ed conduct was a motivating factor in Respondent's deci- sion to terminate Braswell. Wright Line, supra. I am per- suaded, however, that Respondent met its burden of demonstrating that the same action would have taken place even in the absence of the protected conduct of Braswell. I credit the testimony of Warping Department Super- visor Tucker that on the day Braswell was terminated she obtained the correct wrench for him and observed him perform the work task with that wrench. I further credit the testimony of Tucker that she had warned Braswell the day before about using the wrong wrench thus creating a potential of injury to the employee. I credit the testimony of Employment Relations Manager Shearl that Braswell admitted to him the day following his having been sent home that he had used the wrong wrench in performing the job and that the proper wrench was in his toolbox. Braswell admitted he had previous hand injuries and it was he who had suggested the new tool-the ratchet wrench-for use in an attempt to prevent hand injuries. There is no doubt but that Braswell was terminated for failing to use the safer wrench at a time when he had the safer wrench in his toolbox. Further, Respondent was following its past practice of disciplining employees who engaged in unsafe acts. Respondent demonstrated that employees had been disciplined before the event in- volving Braswell, at or about the time of the event in- volving Braswell and after Braswell had been disciplined for failing to comply with safe work rule standards. For example, Respondent had disciplined Borin Favors, Allen Hollis, J. A. Rolin, Jimmy Alls, William Miller, Phillip Lunch, Collis Roundtree, James A. White, Myrtle Bryant, and Ulysses Gear for failing to follow safety rules or for committing unsafe acts. Therefore, I con- clude and find that Respondent met its burden of show- ing the same action would have been taken against Bras- well even in the absence of any protected conduct on his part, and as such I therefore recommend that portion of complaint paragraph 17 in Case 10-CA-16016 as it per- tains to the discharge of Braswell be dismissed in its en- tirety. 9. The discharge of employee Peggy Ruth Gardner The General Counsel at paragraph 17 of the complaint in Case 10-CA-16016 alleges that Respondent on or about April 26, 1980, discharged and thereafter failed and refused to reinstate its employee Peggy Ruth Gard- ner because of her membership in and activities on behalf of the Union and because she engaged in concerted ac- tivities with other employees for the purposes of collec- tive bargaining and other mutual aid and protection. The Respondent admitted it discharged Gardner on April 26, 1980, but contended it did so for good cause. Employee Peggy Ruth Gardner testified she worked for Respondent from October 1971 until April 1980. At the time of her discharge Gardner was a weaver under the supervision of Weaving Supervisor Tucker.27 Gard- ner testified she became aware of the union campaign on March 30, 1980. She participated in handing out leaflets in the parking lot of Respondent. Gardner wore a union 2' Ihroughoul this Decihion. Wea'ing Supcr,.isor tucker has been re- ferred to as eilher Jaclk or Robert inasmuch as his full name is Ja.k Robtrl 1 Ilcker 371 I)l CI SI()NS ()F1 NA II()N A AI-.AIt¢)R RI I \ I I0NS NBOARD) hbllO1, signed a unioll comniitte card, and her name ,sais on 1 Ica lealet coltilnillg scerall employecs' llcs as stpportillg til. Ulllioll, vIlich ICafIct ias distribiutcd as a handbill at the plant. (iardnecr along wilh fellowv employ- ces 11ughts circulated the petition protesting the dis- charge of emiployee Warren as set forth elsewhere in this Decisioin and the violations by Respondent surrounding that petition. Gardner tes ified that in mid-April 1980 Supervisor Johnni Skinner came to where she vas ald told her that her shirt would look a lot better without the patch she had on it. Gardner told Skinner that it would not, to wvhich Skinner responded, "Well, all it's going to do is get you fired and it's a bad time to he hunting a job." The patch to which Skinner was referring, according to Gardner, was one sewn on her shirt which said "Union Organizing Committee. " 2 ' Gardner testified that the last day of her employment with Respondent was April 26, 1980. Gardner reported for work that day and gave Weaving Supervisor Tucker her doctor's excuse. lie told Gardner she would have to help on flat weave that day because the lino machine was shut down. At approximately 9 a.m. when she and a fellow employee started to take a break, Weaving Super- visor 'Fucker called her into his office. Gardner testified Tucker told her he and Weaving Superintendent Lewis had decided to send her home. Gardner inquired why they were doing it, to which Tucker responded, "Betty, do you really want me to tell you?" Gardner testified she told him no, turned, and walked off. Tucker instructed Gardner to be present in Employee Relations Manager Sego's office on Monday morning at 10 a.m. Gardner reported to Sego's office as told and was sent from there to Weaving Superintendent Lewis' office. Present in the office were Lewis and Weaving Supervi- sor Tucker. Lewis told Gardner that they had decided to fire her because she had been absent too much. Gardner testified she had missed 8 days at that point in the year. Gardner protested that she had not missed 12 days at that time, to which Lewis responded that at the rate she was going, she would miss 40 days. Gardner told I ewis that her child had been sick for a long time and they were running tests on him for leukemia. Gardner told Lewis that she had to take her child back to the doctor every 28 days for shots, and that, at any time he got sick, she was forced to take him to the doctor. Gardner testi- fied Lewis responded, "If I can see that you[r] child was dying, I could see letting you off from work." Gardner told Lewis, "What do you think leukemia does to people?" Lewis then responded to Gardner that if her child was that sick, she did not need to work. Gardner told Lewis that she had always heard that Respondent allowed 12 days of absence per year. Lewis responded to Gardner that employees were only allowed I day per month. Gardner left Lewis' office at that time. The following Tuesday, Gardner returned to Respond- ent's planit to meet with Plant Manager Cochrain Ac- tI ie (i ral tCr, t llI til cl tit tict lic.rilg Uol lcticil tl se ' ais itt.l Iiig I11is c'idCl lc , .k.tl reslp l to Ski1111¢r illt (lie IC,. d rliderc i a, n ilalier of hatkgr itil il .ld ait. i(t s'cking ill hut,. a, fitditlg ma;dle t01ctrtoll oft .tins tunlit,.sful conduct l Atc:orditlglIy, I h}l ic imalIe no illtdinig V ith respect thereto cording to Gardlner, Cochran told her that he had gone oxver her records and she had missed 20 days in 1975 and he thought Respondent had been mighty good to her. Gardner testified she received no warning for her absen- teeismt. Gardner testified she knew of other employees who had been absent from work for more than 8 days. Gard- nier identified employees Rose Simmons, Grace Outlaw, and Debbie Mosher as having missed more days than she and still w orking. Gardner testified Simmons had missed 19 days. She did not know how many Outlaw had missed, but Mosher had missed 14 days. Gardner testified that only one of them, Rose Simmons, had received a warning for her absenteeism. Gardner testified she had been told in the past that the absentee program w.as 12 days per year. Gardner acknowledged on cross-examination that she had asked Weaving Superintendent Lewis for some time off in January 1980 because of the illness of her child. Immediately following that conversation with Lewis, she had a meeting with Weaving Supervisor Tucker in which Tucker spoke to her about her absenteeism. Rose Simmons testified that she was an employee of Respondent and became aware of the union campaign in 1980, but that she never wore a union badge, never handbilled or talked to employees about the Union. She testified she had inquired of Weaving Superintendent Lewis in August 1980 about getting her union card back and he gave her the address of where to write to obtain it back. Simmons testified she received a number of warnings for absenteeism, the first of which was on April 14, 1980. She testified she had missed approximate- ly 10 days at the time of her first warning. Simmons re- ceived a second warning around May 1, 1980, after she had missed 2 additional days. Simmons additionally testi- fied that near the last of August or first of September 1980, after having missed an additional 3 days, she re- ceived yet another warning for absenteeism. Simmons testified Respondent had a policy of allowing 12 days of absence and after that an employee could be terminated. Simmons stated she was told of Respondent's policy by Weaving Superintendent Lewis when he gave her the second warning. At the time she was given the second warning, she was told she could take a 2-week leave of absence in order to get her personal affairs, i.e., a sick baby, taken care of. Simmons testified that Lewis told her he could see her being off if the baby was about to die, but no other way. After her return from her 2-week leave of absence, she was then given the third warning for absenteeism. At the time of her third warning she had missed approximately 14 days. Simmons testified that employee Gardner was out "a great deal" with her baby. The third warning Simmons received resulted in a 3-day suspension. Weaving Supervisor Jack Robert Tucker testified em- ployee Gardner worked for him as a weaver. Tucker tes- tified he gave Gardner a warning in November 1979 for excessive absenteeism. On March 26, 1980, Tucker gave Gardner a 3-dav suspension for excessive absenteeism. Tucker testified Gardner was actually terminated on April 28, 1980, for chronic absenteeism. Tucker testified 37' ANI()C() F \tRICS C() he sent Gardner home in order to afford Weaving Super- intendent Lewis and himself time to discuss her absentee- ism. The following day, April 29, 198(), Tucker and Lewis talked with Gardner and told her she was being discharged for absenteeism. Tucker testified Gardner told Lewis and himself at the time that they were doing it because of her sick child. According to Tucker. Lewis told Gardner that they were not firing her because her child was sick, but rather because she had a bad absentee record. According to Tucker. Lewis asked Gardner if she wished to carry the matter any further, and she re- sponded she did not. As Gardner was learing the office. she told Lewis, "I've got one more thing to say--that I hope your kid gets sick and you have to be out arid they fire your ass." Tucker testified he knew Gardner was for the Union and had seen her wear a union button and stated she Nwas in fact wearing a union button at the time she ,was termi- nated. Tucker testified Gardner wvas not given a leave of absence in 1980, but she ss as offered one. 'uicker tesli- fled that in the very early days of January, Gardner had miissed 3 or 4 days, but she kwas not given a warning. Tucker stated he did, however, offer to her a leave of absence. Weaving Superintendent I.ewis substantiated the testimony of Weaving Supers isor Tucker. Counsel for the General Counsel established a prilma fucie showring sufficient to support an inference that pro- tected conduct s as a niotivating fictor in Respondent's decision to discharge employee Gardner. Gardner had been one of the tIo employCeess who had attempted to circulate arid obtain signilatures on a petitioni protesting the discharge of emplo.e Warren. Further, Respondent through its supervisor and agent, Process Control Engi- neer Dixon, unrlawfully interrogated (Gardner along \aith fellow employee Hughes s ith respect to the petition arind at the same time promulgated. maintained. and enforced a rule prohibiting union solicitation and distributioni oil Respondent's property arind confiscated the petitionl CGard- tier and fellow emnployee Hughes circulated. Further demonstration (of RespoilnldeInts union ailnius os ail'd Gardner is demonstrated by the convsersationl of Supers i- sor Skinner to Gardner. I credit Gardner's testimIon(l wvith respect thereto. It is therefore clear that Respond- ent kne"w of Gardner's coincerted and union activities The evidence irndicated Resporldent would have wel- comed an opportunity to rid itself of Gardner law fully, but the occasion did not present itself. Respondent's attendance policy stated, arinorig other things, "An employee may be absent so excessisely that he cannot meet the Company's requirlements as aill enl- ployee evenl though he provides ain acceptable reason folr each absence." Further, \ ith respect to absenlteeism,l, its attendance policy stated, "In considering excessive ab- senteeisni, extended illness (with proper granted leaves of absence). death il the erriplyyec' s immediate falniili or jury duty \sill not be counted toa;lrd excessive abselitee- ism." The Respondent's absentee policy further stated. "Excluding the aboxe. absences iii excess oft one dai per month or twelve (12) days per year w`ill be considered excessivse The records of emiployces ssith excessise aIb- senlteeisin s ill be reviet ed by the super, isor, depart menit superintecident arid the enmployee relaltionis nlaniagccr i to determline hethler the emrployee should be terminated" Respondenlt w'as able to demonstrate by Respondent's Exhibits 19 through 24 that it had discharged emrploye es hefoire the advenit of the Union arid after Gardner's dis- charge f'or excessise absenteeismi. It failed, hos,,ever, iii my opition, to denlorlstrate that it adhered to it strict polic xitril respect to wsheni it ssould ltermlillate airn en- ploycc for abselteeisrlr Sorie Cerlploy!ecs iaccirul;ltied greater absences beftore disciplirle than others. A clear exainiple of this w\as demonstrated by employee Sininioli sv ho accumulalted absences in ai calendar sear wvhich re- suilted iii her receiving three s arnings in the same year bult was only suspended for 3 days. I conclude that Re- spoilderit had a motis`e other than enforcing its absenltee- ism policy shen it discharged Gardner. I therefore ami persuaded that Respondent did not meet its burden of demonstrating g that the same action ssould have been takern against Gardner in the absence of her protected conilduct ald ias such I find Respondent violated Section 8(a)(3) anid (1) of the Act swhen it terminated its emlploy- cc Peggy Ruth Gardner on or about April 26, 1980). as alleged ill paragraph 17 of the complarit in Case 10() CA 1601) 10. ''he alleged instruction by Respondent to ain employee to give false testimony in a Board proceeding hlie G(eneral Counsel at the hearing in the case herein on No ember 19, 198(), moved to amend the conlplainit iii Case 10-CA-l16016 by adding a paragrph 17(a1. swhich amendrncnt the (ieneral Counsel dictated into the record ias folloss s: Respondent through its Supervisors and Agents, hlosvard Bcrnnett aind Gene Williams, on or about Noemrriher 14, 19(0. instructed its emploee to gi\cx fallse testimiorll ii a Boilrd proceeding amli i thlreat- cried thait eilployee xith reprisal if she testifiedi in it 1toard proceeding and thereby interfered v\ ith the process of the Board in virolation of the rtile il Jo/rhnnier Pollirv. Additionallly. that by doing so Rc- sporcdeint has violated Section S(a;)(3) arid (I) of the Act. as anicrided. Respondent filed a `,ritten arnswver w`ith the Reglional Director of Region 10 of the Board del yiing the allega- tionr of the amclendment as set firth ;abov'e f [plol, ce Joan I:ox\worth testified ill the illstant case oil No \cilherlc 18. 1980. arid stated that 4 days before her testilnito) srhe lad ai consversation nithl TI'lird-Shift Superminlidu ltli Gene W\illiams ald \V'caviiig Shift Sulperisotr I los ir d hBnneltllt inl WilliamiIs' office. She testified: 'Well, I xCtit--I askedl Genei [\V 'llianlts] it I could talk to hin1 aboutt this beca;ilst I didn't s;anli to Comlle Mnil so I x`ciit tli there and I vais talking to hiul and lie told tile tIlt I didnl't have tol conil but that tihe ljudgke Couild send( tIle sheritff after mte and lie told iC telt tr Ie \asrn't goiIg tu tell tile sAhat to do, htll itf 11e \.as rie lie \s\ Ould cn0111' otiltl d1 i her - ;itI maike tle rest o' Ihctlllr look like a hunchl of sons111-ti ia-hitics . ,s\lld, so Ie told rite li told MCt tihal DECISIONS OF NATIONAL LABOR RELATIONS BOARD this conversation was between me and him and Howard and that if I said anything about it that Howard would back him up that it wouldn't never be-that Howard would help him deny it that they would say that it did not take place.... He told me it would be to my best interest to keep my mouth shut. Weaving Shift Supervisor Bennett testified that em- ployee Foxworth approached him in September 1980 and asked him if he could give her assistance in obtaining her union card back from the Union. Bennett informed Fox- worth that he would check into the matter and get back to her. Bennett testified he checked with Third-Shift Su- perintendent Williams and he and Williams consulted with Employee Relations Manager Sego and then ar- ranged to meet with Foxworth. Bennett testified he and Williams met with Foxworth along with Weaving Super- intendent Lewis. Bennett testified Lewis provided Fox- worth the address of the National Labor Relations Board and the address of the union involved and that was the extent of the information or instruction provided or given to Foxworth. Bennett testified that on November 13, 1980, Fox- worth again appoached him this time about the upcom- ing Board hearing. Foxworth approached Bennett on the weaving floor during the shift and told him she had re- ceived a summons and asked if there were anything-any advice he could give her so that she would not have to appear. Bennett informed Foxworth that he would check into the matter and get back with her. Bennett then checked with Third-Shift Superintendent Williams and it was again decided they did not know what to tell Fox- worth so they consulted with Employee Relations Man- ager Sego. The next night Bennett and Williams met with Foxworth. Bennett testified as follows: Jones said that she was tired of those son-of-a- bitches bothering her and she wanted to know w hat kind of advice we could give her about not going. She didn't want to attend. She said that she told us the way she received the summons-she said that a guy pulled up in the yard, kind of stood around out there in the car and walked around and finally had the nerve to come up and knock on the door and she answered the door and he told her to wait a minute and she stood there and watched him go back out to the car. She said as she watched him go back out to the car she noticed another guy out there and she said it was Charles Carver and she called him a low lying son-of-a-bitch and said then that guy comes walking back and up to the door and hands her a paper which was the subpoena. Bennett testified that Foxworth asked Williams what advice he could give her. According to Bennett, Wil- liams told her "the way we understand the law that she would not have to appear. That they would probably get a federal judge and then she would have to go." At this point Foxworth said she was tired of those "sons-of-a- bitches" bothering her, that they had been pestering her on the job, and that her mother was scared for her to be out for fear that someone would do her bodily harm. Bennett testified Williams then told her if she were really sincere, she ought to go express herself to them as she had done to him and Bennett over the last few days. Bennett testified that neither he nor Williams ever told Foxworth to go down there and make the rest of them "look like a bunch of son-of-a-bitches." Bennett further testified that neither he nor Williams at any time told Foxworth that it would be in her best interest to keep her "mouth shut." Finally, Bennett testified that neither he nor Williams told Foxworth that the conversation be- tween them was just that and if anything was said about it, they would deny it ever took place. Third-Shift Superintendent Williams corroborated the testimony of Bennett in all essential aspects. Williams tes- tified that Foxworth stated several times during their meeting that she was tired of "those sons-of-a-bitches." Williams testified the final thing he said to Foxworth was, "I said, Joan, you are sincere-as you say you are about those sons-of-a-bitches bothering you, why don't you go down and express it to them as you have done it to us for the past several days." Williams was emphatic that he did not tell Foxworth that it would be in her best interest to keep her mouth shut. Williams testified he and Bennett repeated to Fox- worth that it was entirely up to her, that if she wanted to go it would have to be on her own, that was the only thing they could tell her. Williams further testified that when he checked with Employee Relations Manager Sego. Sego informed him to tell Foxworth: The way we understood the law was that she would not have to attend the meeting on the NLRB subpoena. It was strictly up to her. That we could not advise her what to do. ]That the only thing we could say was that if she did not attend, that they could probably obtain another subpoena from a fed- eral judge and she would have to appear on that. And that's all we could, you know, any type infor- mation we could give her. It appears from both Bennett and Williams' testimony that this information was relayed to Foxworth in the meeting with her. I credit the testimony of Bennett and Williams with re- spect to the November conversation with employee Fox- worth. I specifically discredit Foxworth's statement that she was told it would be in her best interest to keep her "mouth shut." I find in crediting the testimony of Wil- liams and Bennett that they informed Foxworth she would not have to attend the meeting on the NLRB sub- pena, that it was strictly up to her, but they could not advise her what to do. When an employer informs an employee that the employee does not have to comply with a Board subpena or when it tells the employee that the employee is free to decide for herself whether or not to go to a Board hearing in response to the commands of a Board subpena, it engages in conduct which constitutes unlawful interference with Section 7 rights and as such violates Sectioll 8(a)( ) of the Act. Richard 7T Furtrnev anud ,\raomi P. Furtrlev, u Co-Parttnership. d/h/u Mr. F' Beel and Bourhon, 212 NLRB 462. 466 (1974):; Bo'r Mrlory Ircorporated, 241 NIRB3 1236 (1979); and Winn- 374 AMOCO FABRICS CO. Dixie Stores. Inc. and Winn-Dixie Greenville, Inc., 128 NLRB 574, 578-579 (1960). Cf. Rolligon Corporation, 254 NLRB 22 (1981). Accordingly, I find that when Re- spondent through its supervisors and agents, Bennett and Williams, informed Foxworth lhat she did not have to comply with the Board subpeha, that she was free to decide for herself whether or not to go, it violated Sec- tion 8(a)(1) of the Act. The General Counsel in her amendment to the com- plaint in Case 10-CA-16016 alleged there was a violation of "the rule in Johnnies Pouhtrv." Johnnie's Poultry Co.. 146 NLRB 770 (1964), sets forth standards under which an employer may question employees in order to investi- gate issues raised in an unfair labor practice complaint and prepare for a hearing. In the usual situation the test of whether an employer's interrogation of an employee violates Section 8(a)(1) is whether under all the circum- stances the interrogation reasonably tends to restrain or interfere with employees in the exercise of rights guaran- teed them by the Act. Here, in the case before me, it is not a question of an employer preparing for a hearing, but rather an employee coming and requesting an expla- nation of the employee's right with respect to a Board subpena. I conclude the General Counsel's reliance on Johnnie's Poultry Co., supra, is misplaced and that no 8(a)(3) violation of the Act occurred as alleged by the General Counsel. IV. THI EFI. ICI Oft II11 NF-AIR I ABOR PRACTICI S L PON COMtN1l R('i The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section 1, above, have a close. intimate, and substantial relationship to trade, traffic, and commerce among the several States. and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. CONt [ tISlONS Or L,%W 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization w ithin the mean- ing of Section 2(5) of the Act. 3. By coercively interrogating its employees concern- ing their union sentiments and activities: by threatening its employees with discharge if they joined or engaged in activities on behalf of the Union: by threatening its em- ployees they would not be able to take grievances to their supervisors if they selected the Union as their col- lective-bargaining agent, by threatening employees it would close its plant if they joined or engaged in activi- ties on behalf of the Union; by confiscating a petition being circulated among its employees by its employees which protested the discharge of one of its employees who supported the Union: by prohibiting access to the plant premises to its employees swho engaged in protect- ed concerted actiitiiti: by telling employees they do not have to honor Board subpenas: by promulgating. main- taining, and enforcing a rule prohibiting any union relat- ed solicitations and distributions by its employees on its property: by prohibiting its employes from soliciting their fellow employees during nonworking time to join or support the Union; and by prohibiting its employees from distributing union leaflets to their fellow employees during nonworking time in nonuworking areas, Respond- ent violated Section 8(a)(1) of the Act. 4. By discharging employee Peggy Ruth Gardner on April 26. 1980, and thereafter failing and refusing to rein- state her because of her union and protected concerted activities. Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(3) and (1) of the Act. 5. By imposing more onerous working conditions on Clemenstine Hendley on or about April 9, 1980, and be- cause of the imposition of the more onerous working conditions caused employee Clemenstine Hendley to take a leave of absence on or about April 9, 1980, because of her union and protected concerted activities, the Re- spondent has engaged in an unfair labor practice within the meaning of Section 8(a)(3) and (1) of the Act. 6. By changing the work assignment of employee Elijah Bailey III by removing him contrary to past prac- tice from the position of substitute lead operator on or about April 9, 1980, because of his union and protected concerted activities, Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(3) and (1) of the Act. 7. The violations of the Act noted above constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 8. Respondent has engaged in no other unfair labor practices not specifically noted above. THF RtIMi-)N Having found that Respondent has engaged in certain unfair labor practices. I swill recommend that it be or- dered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. As Respondent unlawfully discharged Peggy Ruth Gardner on April 26, 1980, I shall recommend that Re- spondent be ordered to offer her full and immediate rein- statement to her former job or, if that job no longer exists, to a substantially equivalent position, without prej- udice to her seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered as a result of her discharge. As Respondent un- lawfully placed more onerous working conditions on Clemenstine Hendley causing her to take a leave of ab- sence commencing on or about April 9, 1980, I shall rec- ommend that Respondent be ordered to offer Clemen- stine Hendley full and immediate reinstatement to her former job on the reroll and/or burling section with the assistance, as was its past practice, of a doffer to aid her in placing rolls on the table, and, if that job no longer exists, to offer her a substantially equivalent job w hich she can perform. and make her whole for any loss of pay and other benefits she maN have suffered without preju- dice to her seniority or other rights and privileges. As Respondent ull liawsfully changed the o(iork assignment of Eli jah Bailex III b3 remnoxulg him. contrary to past prac- tice, from the position of lead operator. I shall reconm- 375 I)I ('ISI()NS OF NATIONAI I AB()R RE I.ATI()NS ()OARI) mend that Respondent be ordered to fill the position of lead operator inl the department E'lijah Bailey Ill worked on in a londiscriminatorv fishion, arid make Elijah Bailey Ill wNhole for any loss of pay or other benefits he may hasie suffered as a result of not being permitted to serve in the position of lead operator. With respect to Bailey, I shall recommend that Respondent be ordered to pay tile sage difference Bailey would have received had lihe been able to serve as substitute lead operator during the 0-week absence of lead operator Westbury. Backpay lf'r tfile lbrego ig inldividual s and interest thereon shall be computed in the manner described in tE W. Woo/lworlh Comnlpuly, 90 NI RB 289 (1950), and Florida Steel Corpo- ralion, 231 NLRB 651 (1977). See, generally, Ivis Plumb- itg & Heating Co., 138 NLRB 716 (1962). Further, it will be recommended that Respondent post the attached notice. Upon the foiregoing findings of fact, conclusions of lass anld the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: OR DER'-' The Respondent, Amoco Fabrics Co., Patchogue- P'lymouth Division/Nashville Mills, Nashville, Georgia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning their union sentiments and activities (b) Threatening its employees with discharge if they join or engage inl activities on behalf of the Amalgaimat- ed Clothing & ITextile Workers Union, AFL-CIO, ClC, or any other labor organization. (c) Threatening its employees they , would not be able to take grievancees to their supervisors if they selected the Amalgamated Clothing & Textile Workers Union, AF I. CIO, CI.C, as their coleective-bargaining repre- sentativ e. (dl) 'Telling emnploy'es they do not have to honor Board sublpenai, (e) 'Ihreateling its employees that it would close its plant if they joined or engaged in activities onll behalf of thie Utnion (1) Maintaining or enltorcing aly rule which prohibits employees fronm distributing literature in nonvssorkiing areas on nonsorking tilme. wxhere such distribution is protected by Section 7 of the Act. (g) Maintaining any rule w hich prohibits employees from soliciting on nonworking time, where such solicita- tion is proltected by Section 7 of the Act. (h1) Lenying access to tile plant premises to emiployeces s, ho are engaged in protected collcerced activities. "' II1 It 1" .l L ii ,,,-IO CtC 1ll W III ill .' I ll J., I pr0 i\ lcl hi 5', 1iC L 4h ot I1hc Ruidc andid Rcgutl ion, Ill I l' Nail lnal I;, ab Relatlon,~ Bll11a. lict Jllthllg'., CoIlg l st1l.,, 1il]d It'C0111111C.I,'ll. td ()lt1lC II,.,iill c i lla ., aill r l.l lCd h\ sc, 102 4x il Ili, Ruilc i.,,d RLg.LLItIIIoII\, Ill itd.o,)iLLI h1 1i t I ilaild A dt ll 11 1 J< il. llle 1 \l k'; Is llchl l- 11.t111 1 It' d 11'llJ Objt.Ll ,hall bkc d-t' 1c td \l, ill'c~d IO ... pll pl.% (i) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the followinig affirmative action to effectuate the policies of the Act: (a) Offer Clemenstine Hendley immediate and full rein- statement to her former job with the assistance of a fellows employee in placing rolls upon the reroll table or in the burling job position or, if those positions no longer exist, to a substantially equivalent position, without prej- udice to her seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered as a result of our causing her to take a leave of absence, in the manner set forth in the section of this De- cision entitled "The Remedy." (b) Offer Peggy Ruth Gardner immediate and full rein- statement to her former job or, if that job no longer exists, to a substantially equivalent position without prej- udice to her seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered as a result of her discharge in the manner set forth in the section of this Decision entitled "The Remedy." (c) Make whole Elijah Bailey III for any loss of earn- ings he may have suffered by reason of the unlawful action against him in the manner set forth in the section of this Decision entitled "The Remedy." (d) Preserve and, upon request, make available to the Board or its ageits, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords relevant and necessary to a determination of' com- pliance with paragraphs (a), (b), and (c), above. (e) Post at its Nashville, Georgia, place of business copies of tile attached notice marked "Appendix.":"' Copies of said notice on forms provided by the Regional Director for Region 10, after being duly signed by Re- sponridclt's representatirve, shall be posted by it immedi- ately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices are customarily posted. Reasonable steps shall be takeii by Respondent to insure that said notices are not altered, defaced, or covered hby any other material. (f) Notify tile Regional Director for Region 10, in w riting, within 20 days from the date of this Decision, what steps have been taken to comply herewith. II Is I-i RIHIt R ORI)IRI.I) that those allegations ill the complaints as to x\hich no violations have been found are hereby dismissed. " 1lii. 11 \' 1 1 i(tll. II isi Ordelr iI clll l1cc'Ci h, it Judgr enl of aI i illied SiJIIt s ( Ii l it .A\plpcals tiii xe irds iii tl c IlincC rieadilig "'iicd h\ ()dltcl -11d lil N.lilllo l I ahol RCato Btl Omllds I : ;"hal1l road "J >t.Jlcd I'uru - ,11, I, , J ildg1Igllt'l A lil l lutcd SltesI C ILItt tlf A -ppeals I tl' orcmlng tl t )ldt'l il li, Nallltlw [ hll RtJahollS- Ito iird" 376