Fieldcrest Mills, Inc.

FIELDCREST MILLS. INC. Fieldcrest Mills, Inc. and Amalgamated Clothing and Textile Workers Union, AFL-CIO, CLC. Cases 10-CA- 15300 and 10-RC- 11929 September 30, 1982 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On January 7, 1982, the National Labor Rela- tions Board issued its Decision and Order and Di- rection of Second Election' in the above-entitled proceeding in which it found that the Respondent violated Section 8(a)(1) of the Act by threatening employees with plant closure and discharge, intimi- dating an employee because of his union activity, interrogating employees, and requesting employees to engage in surveillance of union activities; and violated Section 8(a)(3) and (1) of the Act by dis- charging employee Ray Hughey and by transfer- ring and then laying off William Dodson for en- gaging in union activities. The Board also sustained the Union's objections to an election held in Case 10-RC-11929 and directed a second election. By letter dated August 4, 1982, the Board notified the parties that it had decided sua sponte to reconsider its decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, thie Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Having reconsidered the record in this proceed- ing, we hereby reaffirm our previous Decision and Order except that we find that employee Ray Hughey was not unlawfully discharged. We shall dismiss that allegation of the complaint. In its original Decision and Order, the Board adopted without comment the Administrative Law Judge's finding that Respondent violated Section 8(a)(3) by discharging Hughey. Applying Wright Line,2 the Administrative Law Judge found that the General Counsel had presented a prima facie case of discrimination which Respondent failed to rebut by its defense. Its defenses was that Respond- ent had legitimately discharged Hughey pursuant to a valid company rule requiring such discipline for three violations of Group D rules within 6 months. The Administrative Law Judge, however, found that the third and final alleged violation by Hughey occurred 6 months and 2 days after the first violation. He rejected the defense solely on this basis. i 259 NLRB 914. z Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980). 264 NLRB No. 86 It is now clear that the Administrative Law Judge miscalculated. Actually, Hughey was given written warnings for violations of Group D rules three times within 5 months and 2 days. Conse- quently, we have reviewed the record in order to ascertain whether, as the General Counsel contend- ed before the Administrative Law Judge, the final warning given to Hughey was a pretext masking unlawful motivation. Hughey received written warnings on June 26 and August 6, 1979, for violating a Group D rule against being absent without permission. In Sep- tember, he was promoted to the position of tub op- erator, where he dyed rugs. Shortly thereafter, he received a raise and a compliment for his good work. In mid-November, Hughey had a conversa- tion with his supervisor, Denton Layfield. Accord- ing to Hughey's credited testimony, Layfield un- lawfully asked him how he felt about the Union and mentioned that he had noticed Hughey wear- ing a union button. Hughey replied that he was for the Union. Upon arriving at Respondent's plant on November 28, Hughey accepted some union litera- ture from an organizer standing 30 to 40 feet from the guard shack. Hughey testified that Supervisor Edward Chambers was standing at the ground shack and looking directly at him at the time. When Hughey punched in for work that day, Chambers immediately told him to report to Lay- field. Layfield then told Hughey that he had dye- spotted 17 rugs, which constituted his third viola- tion of Respondent's rules in 6 months. According- ly, he suspended Hughey pending discharge. Although Hughey appeared at one point in his testimony to deny actually spotting the rugs, the General Counsel does not support him in denying culpability. In this regard, two supervisors and one employee witness attributed to operator error spots in a rug identified as I of the 17 damaged by Hughey. Both the General Counsel and the Union contended that Respondent's discipline of Hughey was disparate. To substantiate this contention, they rely on certain evidence about alleged rug-spotting by tub operators McCutcheon and Boozer. Hugh testified that McCutcheon had spotted four or five 150-rug loads only a few days before Hughey's discharge, but that Layfield simply told McCutcheon to strip and redye the rugs. Layfield denied any knowledge of McCutcheons alleged error on the third shift. Layfield noted that he su- pervised the second shift. McCutcheon did not cor- roborate Hughey during his testimony, stating only that he had once received a written reprimand for improperly dyeing rugs. Tub operator Boozer testified that he was not disciplined when he spotted 300 rugs in December 647 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1979, and an unspecified number of rugs a year ear- lier. Boozer's supervisor, Rufus Thompson, testified that the more recently spotted rugs were submitted to a laboratory, where it was determined that oper- ator error had not caused the spotting. Supervisors Layfield and Thompson both testified that they could usually tell by visual examination whether or not rug spots were attributable to operator error or to some other cause. Layfield further testified, without contradiction, that employees were disci- plined only if they were found to be responsible for rug-spotting. Finally, Respondent introduced written evidence that four tub operators had recently received writ- ten warnings for negligent performance of their duties, a Group D rules violation, which resulted in rug damage. One employee, tub operator Darrell Robinson, was discharged for receiving three writ- ten reprimands in 6 months, including two warn- ings for undissolved rug dye. In light of the foregoing, we believe a finding of disparate or pretextual discipline cannot be made with respect to Hughey's November 27 warning, and that the 8(a)(3) allegation regarding Hughey must be dismissed. Accordingly, we hereby affirm our original find- ings, conclusions of law, and order except as modi- fied by the deletion of provisions relating to the discharge of Ray Hughey. We also affirm our sus- taining of the Union's objections to the election conducted in Case 10-RC-11929 and the original Direction of Second Election except that we hereby overrule Objection 11 which was based on the discharge of Hughey.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby reaffirms the original Deci- sion and Order and Direction of Second Election 4 in this proceeding (259 NLRB 914), except as modified here, and orders that the Respondent, Fieldcrest Mills, Inc., Scottsboro, Alabama, its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning their union activities and sentiments or concerning the union activities and sentiments of others. (b) Threatening employees with discharge or plant closure if they engage in union activity. (c) Intimidating employees because they engage in union activity. 3 In affirming our Direction of Second Election, we rely on our sus- taining of Objections 1, 3, 4, and 14. 4We find it unnecessary to repeat the Direction of Second Election in this Supplemental Decision and Order. (d) Discouraging membership in or activities on behalf of Amalgamated Clothing and Textile Workers Union, AFL-CIO, or any other labor or- ganization of its employees, by transferring or laying off employees because of their membership in or activities on behalf of the above-named or any other union. (e) In any other manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer William Dodson immediate and full re- instatement to his former position or, if such posi- tion no longer exists, to a substantially equivalent position, without prejudice to his seniority of other rights previously enjoyed, and make him whole for any loss of pay due to the violation against him in accordance with the manner set forth in "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its place of business in Scottsboro, Al- abama, copies of the attached notice marked "Ap- pendix."5 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecu- tive days thereafter, in conspicuous places, includ- ing all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not al- tered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps it has taken to comply herewith. b In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 648 FIELDCREST MILLS, INC. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WIL L NOT interrogate employees con- cerning their union activities and sentiments or concerning the union activities and sentiments of others. WE WILL NOT2 threaten employees with dis- charge or plant closure if they engage in union activity. WE WILl. NOT intimidate employees because they engage in union activity. WE WILL NOT discourage membership in or activities on behalf of Amalgamated Clothing and Textile Workers Union, AFL-CIO, or any other labor organization of our employees, by transferring or laying off employees because of their membership in or activities on behalf of the above-named or any other union. WE Wlltl NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. W:. Wit L offer William Dodson immediate reinstatement to his former job or, if such job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges previously enjoyed, and WE WIl. make him whole for any loss of earnings he may have suffered as a result of the discrimination against him, with interest. FIEI DCREST MII LS, INC. 649