Swift Textiles, Inc.

SWIFT TEXTILES Swift Textiles, Inc. and Charles C. Milner, Jimmie E. Carroll, Billy Edward Hudson, Charlie F. Lakes, Jimmie E. Carroll, Charles C. Milner, and Leon Culler. Cases 10-CA-11989-1, -2, -3, 10-CA- 12043. 10-CA-12288, 10-CA-12369, and 10-CA- 12390 June 1, 1979 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND TRUESDAI.E On October 27, 1977, Administrative Law Judge Paul Bisgyer issued the attached Decision in this pro- ceeding. Thereafter, General Counsel filed exceptions and a supporting brief, and Respondent filed a brief in support of the Administrative Law Judge's Deci- sion. 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, findings,' and conclusions2 of the Administrative Law Judge only to the extent consistent herewith. The complaint alleged that Respondent engaged in various conduct violating Section 8(a)(1) and (3) of the Act. The Administrative Law Judge found that Respondent had not violated the Act as alleged and recommended that the complaint be dismissed in its entirety. We agree with his findings and conclusions except as follows: 1. Contrary to the Administrative Law Judge, we find that Respondent violated Section 8(a)(3) and () of the Act in issuing a written warning to employee Charles Milner on April 26, 1976. Milner was a union observer at the Board-conducted election held on Fri- day, April 23. Consequently, he was not required to, and did not, report to work that day. He also did not, as required by Respondent's absenteeism rule, notify The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 Without resolving credibility and determining whether Supervisor Hem- don in fact asked employee Flakes if he "hadn't ... got tired of that Union trash yet," the Administrative Law Judge concluded that the statement, even if made, was not coercive. We disagree with the Administrative Law Judge that Hemdon's remark, if made, lacked "coercive implications." However, we need not reach the issue of whether the remark was made because it would not materially affect the remedy herein. We do not rely on the Admin- istrative Law Judge's conclusion that another remark which Herndon made to Flakes, that if the Union got in it could cost Flakes his job. was not a threat because Flakes testified he did not consider it a threat. a supervisor that he would not be in to work then. However, plant supervision was aware that he was to act as an election observer and hence would not be working that Friday. Around noon that day Milner's supervisor scheduled him to work the following day. As Saturday was not a regular workday the usual procedure would have been for Milner's supervisor to notify Milner if he were scheduled to work. On this occasion, however, Milner was not contacted, pre- sumably because he was absent, and thus did not re- port to work on Saturday. The following Monday he was issued the written warning, alleged here to be unlawful, purportedly for failing to call in on Friday and for not coming to work on Saturday. The Administrative Law Judge concluded that al- though the enforcement of the absenteeism rule was highly technical and perhaps unfair, the warning was, nevertheless, given as contended, not for discrimina- tory reasons, but because of Milner's failure to call in and because of his Saturday absence. Thus, he found that it did not violate the Act. We disagree. Milner's warning grew directly out of his engaging, with Re- spondent's knowledge, in protected, concerted activi- ties, i.e., serving as a union observer, and he was in fact disciplined for failing to report to management what it already knew and for failing to work on a Saturday when he had never been instructed to do so? Consequently it seems clear to us, and we find, that the warning was caused by Milner's engaging in protected, concerted activities and was intended to discipline him for engaging in such activity. In this connection, we conclude that the reasons advanced by Respondent for the warning were without any real substance and were essentially no more than rather transparent rationalizations intended to hide the real causes of the warning. Accordingly, we find that Re- spondent, in issuing the warning to Milner on Mon- day, April 26, violated the Act as alleged. 2. We further find contrary to the Administrative Law Judge that Respondent, through Supervisor Obert, unlawfully threatened Milner with a denial of wage increases because of his union activities. Ap- proximately 2 weeks after the election Milner stated to Supervisor Obert that he desired a pay increase that would raise his pay to the top rate. Obert com- mented that Milner would never get another pay raise at Swift and that Milner knew why. Milner responded "because of this union thing," to which Obert made no reply. The General Counsel contends that Obert's conduct amounted to an unlawful threat that Milner would get no pay raise because of his union activities. I We find absolutely no basis for the Adrmnistrative Law Judge's conclu- sion to the effect that Milner should have inquired if he was expected to work on Saturday. The record is clear that the practice was for Respondent to notify the employee, here Milner, and we can perceive no good reason why Milner's absence for engaging in protected activity should somehow be construed as reversing that practice. 242 NLRB No. 111 691 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Administrative Law Judge concluded, however, that the conversation between Obert and Milner was ambiguous with regard to the reason for denial of future increases, that Obert's conduct did not consti- tute adoption of the reason offered by Milner, and that Obert's conduct, therefore, did not amount to an unlawful threat.4 We disagree. The conversation between Obert and Milner oc- curred, as indicated, only 2 weeks after the represen- tation election and, as found above, after Milner's un- lawful warning for engaging in union-related activities. In such circumstances, we conclude that Obert's enigmatic statement that Milner knew why he would not get a raise was in reference to Milner's union activities, especially since there is no evidence suggesting Obert had in mind some other reason or that in fact some other reason did exist. And quite obviously Milner, in supplying the cause he did, be- lieved Obert was referring to union activity. Finally, Obert in effect having invited or evoked Milner's an- swer could not avoid responsibility for that answer simply by walking off as he did. Obert through his conduct led Milner to believe-and appears to have intended to lead Milner to believe-that he would receive no future pay increases because of his union activities. Therefore, we find, contrary to the Admin- istrative Law Judge, that Respondent through Obert's conduct threatened Milner with loss of pay increases for engaging in protected, concerted activity and thereby violated Section 8(a)(1) of the Act. REMEDY Having found that Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Swift Textiles, Inc., Columbus, Georgia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Issuing warnings to employees for engaging in union activities. (b) Threatening employees with the denial of wage increases for engaging in union activities. 4 In reaching his result the Administrative Law Judge also relied on the fact that Milner was subsequently granted a general wage increase and a requested transfer. However, that Milner was not actually unlawfully dis- criminated against does not establish that he was not threatened with such discrimination. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Remove and expunge from Milner's personnel records all references to the warning issued him on April 26, 1976. (b) Post at its Columbus, Georgia, facility copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Direc- tor for Region 10, after being duly signed by its au- thorized representative, shall be posted by Respon- dent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that the no- tices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. MEMBER JENKINS, dissenting in part: 1. Discharge of Flakes. Respondent contends that Flakes was discharged for insubordination, contrary to the General Counsel's contention that Respondent in fact merely seized upon a pretext to discharge a longstanding and militant union adherent. Contrary to the Administrative Law Judge, I agree with the General Counsel. The events which allegedly precipitated Flakes' discharge began when Flakes learned that he would have to work a weekend at straight time because he did not get the necessary hours in during the prior week when his machine had broken down. Upon learning this he became upset and as a result made statements to Supervisors Smith and Golden, as well as another employee, to the effect that he did not think it was fair to work at straight time on Saturday and that he did not intend to come in. No action was taken at the time these statements were made, nor was Flake warned of any possible consequences if he did not show up as scheduled. Flakes called in sick prior to his scheduled starting time on Saturday in compliance with the Company's rules, stating that he had twisted his ankle and could not make it to work. When Superintendent Herndon learned that Flakes was not at work on Saturday he allegedly considered Golden's reports that Flakes had said he was not coming in at straight time and di- In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 692 SWIFT TEXTILES rected Golden to suspend him for 3 days. After his suspension he reported to the personnel office where he was terminated for refusing to work as scheduled. It is clear from the basic facts outlined above that Flakes followed all of Respondent's rules, inasmuch as there is no company requirement that proof of ill- ness be submitted for such short-term absences. Moreover, as the Administrative Law Judge found, not only was Flakes' work and absenteeism record good, but Golden assured Flakes that absenteeism was not the reason for his suspension. It is also clear, and the Administrative Law Judge himself finds, that there is no question that Flakes was a competent em- ployee with a good attendance record who had been employed for 6 years when he was discharged on June 8, 1976. Furthermore, it is acknowledged by the Administrative Law Judge that the evidence shows that he was extremely active in support of the Union, not only in the recent 1976 campaign, but also in previous campaigns in 1974 and 1973. Respondent's knowledge of his strong prounion advocacy is equally well established by virtue of Flakes' service as a union observer in the 1973 and 1976 elections, his attend- ance at a representation hearing, as well as his overt solicitation on behalf of the Union. It is therefore clear, and I so find, that the General Counsel has established all of the elements of his pri- ma facie case, inasmuch as there is clear animus on Respondent's part by virtue of the other unfair labor practices found herein, strong union activity by Flakes, knowledge of his activity by Respondent, and an admittedly pretextual reason for the discharge. Moreover, I find Respondent's justification for dis- charging such a long-tenured and good employee un- convincing. Unlike the Administrative Law Judge, I am not persuaded that the mere fact that there was no active union campaigning going on at the moment has any bearing on the proper inferences to be drawn from the evidence. Besides the fact that there had been three major campaigns by the Union since 1973, which paints a picture of a persistent Union, the rec- ord also contains some evidence that certain state- ments made by prounion employee Carroll6 show that Respondent had good reason to believe that the pro- union employees would try again to bring in the Union. Accordingly, I find, contrary to the Administrative Law Judge, that Respondent discharged Flakes be- cause of his union activities in violation of Section 8(a)(3) of the Act. 2. Discharge and warnings of Carroll: Respondent contends that Carroll was discharged for poor work I The Administrative Law Judge found that about 3 weeks before the last election, employee Carroll made a prediction to General Manager Boyette that the Company would ultimately go union. performance and was given various written warnings for allegedly violating different work rules. The Ad- ministrative Law Judge fails to find any of the alleged violations. The General Counsel, on the other hand, contends that Respondent actually disciplined and ul- timately discharged Carroll because of his union ac- tivity. I agree with the General Counsel. The pertinent facts leading to Carroll's written warnings and ultimate discharge begin with a written warning for allegedly being in the shop area without permission. Carroll testified, and the Administrative Law Judge found, that he did have an order permit- ting him to be in the shop area, and he had merely stuck his head in a room where a friend was working to request a ride home that evening.7 Carroll had re- ceived a verbal warning 2 weeks earlier for the same alleged rule violation. On the day before Carroll was given his first writ- ten warning he was in the "tye-in" room getting some nylon when Supervisor Smith saw him there and told him to keep out unless he had business there, which he had. The Administrative Law Judge found that at the time several employees were there discussing the Union and that Carroll probably made some com- ments. About 3 weeks before the election General Man- ager Boyette called Carroll into his office and told him that the Union has done nothing for the employ- ees of Fieldcrest, a competitor. Carroll responded with the comment that he was not concerned with Fieldcrest's employees and, whether it occurred now or in the future, Respondent's employees would even- tually choose the Union. Boyette engaged Carroll in another conversation after the election, on or about May 12, in which he accused Carroll of going through supervisors' desk baskets. An exchange of words followed during which Carroll denied the accusation and in turn accused Boyette of trying to harass him. The conversation ended with Boyette telling Carroll that he knew how he felt about the Union and to get on with his busi- ness and keep his mouth shut. As the Administrative Law Judge found, the events which immediately preceded Carroll's discharge be- gan on Friday, September 10, when Supervisor Con- nor noticed streaking on cloth produced on loom 355, for which Carroll was the fixer. Conner and Supervi- sors Boyette and Chapman then went to weaver room 2 where loom 355 is located. On the way they spotted Carroll in the canteen taking a break. At this point Carroll left the canteen, returned to weaver room 2, and watched the officials look over his loom. After checking the loom the officials returned to 7It is interesting to note that the employee that Carroll spoke to, Milner. was also a prounion advocate who was also given various warnings allegedl) in violation of Sec. 8(aX3) and (I) of the Act. 693 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their offices and Boyette went to Supervisor Smith's office where he checked the break schedule and found that Carroll was not scheduled for a break at the time. He then issued Carroll a written warning. The warning included an admonition that if such conduct continued he would be subject to dismissal. 8 Before they left weaver room 2 the three supervi- sors decided that the streaking was probably due to the warp.9 Because the warp had only a relatively short length left, they decided to let it run out, believ- ing that when it was changed the streaking would stop. The warp ran out on the next shift and was replaced by another which lasted until the following Monday. As was discovered at that time, changing the warp did not stop the streaking. On Monday evening the head of the inspection de- partment called attention to a cut of streaky cloth which had come from loom 355. Various officials con- ferred about the cloth and decided that although they appeared to be dye streaks, they probably were not. At that point Connor approached and stated that the cloth looked like the cloth he had seen on Carroll's loom the previous Friday. However, when he com- pared the cloth to some other cloth of the same style that had been produced on a different loom he de- cided that his blend and dye theory was probably erroneous and that the cause might be the reed on loom 355. Connor left while Snell and Herndon went to view loom 355. After Herndon left, Carroll approached Snell who asked Carroll for his opinion of the cause of the streaking. Carroll responded that he had seen that problem arise before and that the reed had to be changed in order to correct the situation. Carroll also made the comment that supervision came up there, "snooped around" his loom, and did not even ask him what was wrong with the job. Thereafter the reed was changed and the streaking was remedied. On Tuesday Snell saw Connor and, in the process of telling him what a smart fixer he had in Carroll, told him that Carroll had mentioned to him that he did not believe that the streaking was a dye problem inasmuch as changing the warp had not remedied the situation. Connor then said that he intended to termi- nate Carroll for not informing management what was wrong with the loom even though he knew all along. Connor then went to Boyette's office where he checked Carroll's quality check cards for loom 355. ' Although this is the second written warning which Carroll received, it was the first for being on an unscheduled break. As the Administrative Law Judge noted, Respondent's policy is that a verbal warning will be given for the first offense or deficiency of any type and then a written warning if the same thing occurs again. Only at that point is the employee subject to dis- charge. 9 A roll of thread in the back of the loom from which the cloth is pro- duced. and, finding no notation of any problem, directed Boyette to terminate Carroll. However, Boyette pur- suaded Connor to issue Carroll a written warning which would be appropriate since the day before Boyette had spoken to Carroll about his failure to note an unrelated defect on loom 357. Connor agreed. Carroll was finally discharged after Boyette noticed loom 349, also one of Carroll's looms, was producing worse streaks than those on the cloth produced by loom 355. Boyette asked Carroll for his quality check cards for that loom; they showed no problem. Boy- ette then called Connor over to view the streaked cloth produced on loom 349 and indicated that if it turned out that a bad reed had caused the streaking he intended to fire Carroll, to which Connor agreed. After the reed was changed, Boyette showed Car- roll the cloth produced with the new reed on loom 349, to which Carroll responded that the rereeding had improved the appearance of the cloth. Boyette then said that he could not tolerate his "kind of work" anymore, he was no longer needed, and to get his tools and leave.'0 Unlike the Administrative Law Judge, I am not pursuaded that the time lapse between the last elec- tion and Respondent's allegedly discriminatory ac- tions against Carroll vitiates all of the other evidence supporting the General Counsel's case. Especially rel- evant in this regard is Boyette's comment to Carroll on May 12, almost 3 weeks after the election, when he accused Carroll of going through supervisors' desk baskets. In response to Carroll's denial Boyette re- sponded that he knew how Carroll felt about the Union and to get on with his job and keep his mouth shut. At minimum such an accusation and acrimoni- ous comment from supervision, coming so long after the election, shows that management continued to harbor a serious concern with the employee's efforts at unionization. This is emphasized by the fact that Boyette brought up the subject of the Union in cir- cumstances in no way suggesting that Carroll was then engaged in any kind of prounion activity. Furthermore, even more so than in the case of Flakes, Respondent had every reason to believe, based on Carroll's prediction to Boyette, that the Company would eventually go union, that he would persist in his prounion efforts. Moreover, this oc- curred when Boyette called Carroll into his office to discuss the employees' efforts at unionization, telling Carroll that the Union had done nothing for the em- ployees of Fieldcrest, a competitor, to which Carroll responded that the employees were not concerned with Fieldcrest. only with Respondent. This conver- '° The weavers on all shifts and the fixers on the second and third shifts who were previously given verbal warnings received written warnings for not reporting the streaking condition. 694 SWIFT TEXTILES sation occurred 2 weeks after the election and demon- strates not only that the Union's loss in the election ended the employees' efforts at bringing in the Union, but also that the most active prounion employees were being singled out for special attention and were still an object of concern. Thus, it is clear from the above that Respondent's actions with respect to Carroll were motivated by his prounion activities and were therefore violative of Section 8(a)(3) of the Act. Carroll's union activity and Respondent's knowledge of this are admitted. Respondent's animus is clear from the other viola- tions found herein. Finally, I find that Respondent's justification for the severe and disparate action it took against Carroll, who had been employed 18 years, has not been justified by the reasons given. In this regard I note that none of the supervisors, weavers, or fixers on the other shifts were able immediately to deter- mine the cause of the streaking problem. I also find that in the context, Carroll's comment to Snell did not reasonably imply that he was willfully withholding information from management. In fact I find that his stated reason for not going to management sooner with his notion that the reed was defective on his loom, that he was concerned that the supervisors were trying to find something to blame him for, is much more reasonable, given Respondent's other actions in singling him out due to his prounion position. Accordingly, I find, contrary to the Administrative Law Judge, that Respondent's actions in issuing the written warnings and ultimately discharging Carroll constitute violations of Section 8(a)(3) of the Act. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which both sides had the opportu- nity to present their evidence, the National Labor Re- lations Board has found that we violated the law and has ordered us to post this notice and we intend to abide by the following: WE WILL NOT issue warnings to employees for engaging in union activities. WE WILL NOT threaten employees with the de- nial of wage increases for engaging in union ac- tivities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE Wi.L remove and expunge from Milner's personnel records all references to the warning issued to him on April 26. 1976. SWIFT TEXTII.ES. INC. DECISION SIAIMENI OF IIl CASI- PAUIt BISOCYFR, Administrative Lavs Judge: These con- solidated proceedings, with all the parties represented. were heard on January 3 through 6, 1977. in Columbus Georgia, on the consolidated complaint issued in Cases 10 CA 11989 1, 2. and 3, and 10 CA 12043 hb the General Coun- sel on August 11, 1976.' as amended on December 2. 1976: on the complaint in Case 10-CA 12288 issued bh the Gen- eral Counsel on November 10, 1976.: which was simulta- neously consolidated with the foregoing consolidated cases: and on another consolidated complaint issued in Cases 10 CA-12336, 12369, and 12390 by the General Counsel on December 6, 1976.' which was also simultaneously consoli- dated with the preceding complaints: 4 and the several an- swers of Swift Textiles, Inc., herein called Respondent or Company. In issue are the questions whether Respondent. in violation of Section 8(a)(1) and (3) of the National Labor Relations Act. as amended' discriminatorilN discharged I This consolidated complaint is based on separate charges filed n Cases 10 CA 11989 1 and 2 on May 21. 1976. in Case 10-CA 11989 3 on May 24. 1976. and in Case 10 CA 12043 on June 10. 1976. Copies of these were duly served on Respondent by registered mail on May 21 for the first two cases and on May 24 and June 10, 1976, respectively, for the other two cases. 2 The complaint in Case 10-CA 12288 is based on original and amended charges filed on September 24 and November 2. 1976. respectively,. copies of which were duly served on Respondent by registered mail on the respective dates of filing. This consolidated complaint is based on original and amended charges filed in Case 10 CA 12336 on October 18 and December 6, 1976. respec- tively, copies of which were duly served on Respondent by registered mail on October 19 and December 6, 1976, respectively; on a charge filed in Case 10 CA 12369 on November 2, 1976. and a charge filed in Case 10 CA 12390 on November 11. 1976. copies of which were similarly served on Respondent on November 3 and 11. 1976, respectively 'After the hearing in the above consolidated cases was closed, the General Counsel issued a fourth complaint in Case 10-CA 12563 on March 11. 1977, on the basis of original and amended charges filed by Harold T. Cochran. alleging violations of Section 8(a)(1). (3), and (4) of the National Labor Relations Act, as amended. On motion of the General Counsel, the Admin- istrative Law Judge on March 31, 1977, issued an Order reopening the rec- ord in the above cases and consolidating Case 10 CA-12563 with those cases and scheduled the issues in Case 10 CA-12563 for heanng. Thereafter, on June 1. 1977. Harold T. Cochran, the charging party in Cases 10-CA 12336 and 10 CA 12563 executed a request for the withdrawal of the charges filed by him in those cases as part of the settlement of his claims against Respon- dent. On June 27, 1977, on joint motion of the General Counsel and Respon- dent, the Administrative Law Judge issued another Order. sevenng Cases 10-CA 12336 and 10-CA- 12563 from the other cases noted in the caption: approving the withdrawal of Cochran's charges; and dismissing the com- plaint in Case 10 CA 12563 and the allegations relating to Case 10 CA 12336, without prejudice to the adjudication of the issues in the remaining cases. I Section 8(aK I) of the Act makes it an unfair labor practice for an em- ployer "'to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7." Insofar as pertinent, Section 7 provides that "lelmployees shall have the nght to self-organization, to form. join or assist labor organizations. to bargain collectively through representatives of their own choosing. and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . .." rContinued) 695 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees Charlie F. Flakes, Leon Culler, Billy E. Hudson, and Jimmie E. Carroll because of their union membership ad activities: whether Respondent for the same discrimina- tory reason issued written warnings to employees Hudson, Carroll, and Charles Milner; and whether Respondent oth- erwise interfered with, restrained, and coerced employees in the exercise of their statutory rights both before and after a representation election conducted by the Board on April 23, 1976. At the close of the hearing, the parties waived oral argument but subsequently submitted briefs in support of their respective positions. Upon the entire record, and from my observation of the demeanor of the witnesses, and with due consideration being given to the arguments advanced by the parties, I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF RESPONDENT Respondent, a Delaware corporation, has its office and plant in Columbus, Georgia, where it is engaged in the manufacturing of textile products. It annually sells and ships finished products valued in excess of $50,000 directly to customers located outside Georgia. Respondent con- cedes, and I find, that it is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is stipulated, and I find, that Textile Workers Union of America, AFL-CIO, herein called the Union, was a labor organization within the meaning of Section 2(5) of the Act before June 1, 1976, and at all material times prior to that date, including April 23, 1976, the date of the last Board conducted representation election. 6 III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background of the Union's Organizational Campaigns; Issues Presented Respondent employs some 1300 production and mainte- nance employees at its Columbus, Georgia, textile manu- facturing plant whom the Union has been trying to orga- nize during three successive years. The Union's first campaign started about October 1972, resulting in the filing of a representation petition and a Board conducted election on April 20, 1973, which the Union lost. Thereafter, the Union filed unfair labor practice charges on which a com- plaint was issued and, following a trial, the Board on Octo- ber 11, 1974, issued its Decision and Order,' finding that Section 8(aX3), with certain qualifications not material herein, prohibits an employer "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage member- ship in any labor organization . .. " 6 At the hearing Respondent challenged the continued existence of the Textile Workers Union of America, AFL-CIO, as a labor organization after June 1, 1976, in view of its merger with Amalgamated Clothing Workers of America at or about that time. Resolution of this question is unnecessary to the determination of the issues before me. 7 Swift Textiles, Inc., 214 NLRB 36 (1974). Respondent discriminatorily terminated two employees in violation of Section 8(a)(3) of the Act and engaged in var- ious acts of interference, restraint, and coercion of employ- ees, both before and shortly after the election, in violation of Section 8(a)(1) of the Act. A second petition was filed by the Union and a second election was conducted by the Board on June 7, 1974. The Union also failed to win this election. Subsequently, the Union initiated its most recent organizational campaign about January 1976 and, on the basis of a third representa- tion petition filed on January 23, 1976,1 another Board elec- tion was held on April 23, 1976, which the Union again lost by a vote of 420 in favor of representation to 732 against representation, with 16 ballots being challenged and 8 bal- lots being voided. No objections were filed in either the 1974 or 1976 election. The instant complaint cases are the aftermath of the Union's last successful organizational effort which culmi- nated in the April 23, 1976, election. The complaints allege, with one exception, preelection conduct violative of Section 8(a)(1) of the Act. In addition, they allege the subsequent discharges of employees Charlie F. Flakes, Leon Culler, Billy E. Hudson, and Jimmie E. Carroll and the issuance of written disciplinary warnings to two of them, Hudson and Carroll, and to a third employee, Charles C. Milner, in re- prisal for their concededly known union activities. Al- though there is no evidence of a renewed organizational drive by the Union or of the resumption of union activities by any employee following the Union's defeat in the April 1976 election, it is the General Counsel's theory that the discharges and Respondent's other alleged misconduct were designed to forestall or blunt any future campaign the Union might institute. Moreover, the General Counsel also views the warnings as a vehicle to build up a case for the ultimate termination of other union adherents. The Respondent, on the other hand, vigorously denies that it engaged in any conduct infringing upon employee statutory rights or that the discharges and warnings were discriminatorily motivated or prompted by other than le- gitimate business considerations. We turn to the evidence and the conclusions derived from it with respect to the al- leged unfair labor practices. B. The Alleged Discriminatory Discharges and Written Warnings The question of discrimination against the named em- ployees is essentially a factual one whose resolution rests, as it often does, on circumstantial evidence. This requires that all the facts and circumstances surrounding the separation and warnings be carefully evaluated with due recognition being given to the settled principle that an employer may take such action for any reason-good, bad, or indiffer- ent-as long as the employee's protected union or con- certed activities do not enter into the employer's decision. Of course, an employee's union involvement does not insu- late him from discharge or other discipline for nondiscrimi- natory considerations. Also well settled is the principle that the burden of proving the unfair labor practice is the Gen- 'Case 10-RC-10586. 696 eral Counsel's. The case of each alleged discriminatee will be separately considered. 1. Flakes Flakes was a beamer tender employed by Respondent from 1970 until June 8, 1976, when he was terminated un- der circumstances to be presently related below. There is no question that Flakes was a competent employee with a good attendance record. In accordance with practice, Respondent announced on Thursday, June 3, that Flakes' department was scheduled to work the following Saturday and Sunday, June 5 and 6. As Flakes had worked only 24 hours during that regular workweeks' because his machine had broken down, and as it had been Respondent's long-established policy to pay overtime rates only for the hours performed in excess of 40 hours worked during a given week, this meant that Flakes would be paid at straight time for Saturday work. Obvi- ously dissatisfied with such arrangement, Flakes discussed the weekend schedule with John A. Smith, a supervisor in the beaming department. When told by Smith that he was required to work on Saturday (June 5), Flakes angrily re- sponded that he would not work on Saturday at straight time while the other employees were being paid time and a half. However, he added that he would start the week off right by working Sunday, which is a nonovertime workday for all employees. Smith thereupon walked away without further comment. The next day Flakes engaged Smith in another conversa- tion in which he repeated his previous intention of not working Saturday at straight time but working on Sunday. Smith retorted that the schedule called for work on both days and that he expected Flakes to be at the mill on those days." Smith reported this conversation to Beaming De- partment Manager Horace D. Pittman who was skeptical that Flakes would be absent Saturday, stating that Flakes was probably just talking. Indigo Dye Department Manager Ralph Golden, who was scheduled to supervise the weekend operation of the beaming department,'2 had a conversation with Flakes on Thursday, June 3, concerning Flakes' intention not to work on Saturday. Flakes asked Golden whether he thought it was right to require anyone to work Saturday at straight time. When Golden expressed the view that it was right under the circumstances where Flakes had lost time by rea- son of his machine's breakdown during the week, Flakes, nevertheless, remarked that he was not going to be in Satur- day. On Friday evening, in the course of discussing the Saturday work schedule with Pittman, Golden reported his conversation with Flakes to Pittman, and the latter in- formed Golden that Flakes had made similar statements to Supervisor Smith. Pittman passed this information on to his superior, Roger A. Herndon, superintendent of dyeing, beaming, and slashing. ' Unless otherwise indicated, all dates relate to 1976. 0 Respondent's regular workweek begins on a Sunday and continues through the following Saturday. n Employee James C. Trawick, who worked alongside of Flakes, testified to overhearing part of one of the Flakes-Smith conversations. 12 Golden alternated weekend supervision with Beaming Department Manager Pittman. SWIFT TEXTILES Flakes also told Robert H. Kurtz, a maintenance depart- ment electrician, while Kurtz was repairing Flakes' beamer frame, that he did not intend to work Saturday at straight time, as he was assigned to do, because he had lost time during the week through no fault of his. Kurtz agreed with Flakes' reason and indicated that he, too, would not work Saturday at straight time under such circumstances. Kurtz later conveyed the substance of this conversation to Golden." As required by the Company's rules," Flakes telephoned the mill a little after midnight, Saturday morning, and spoke to the third shift (II p.m. to 7 a.m.) supervisor, Cleo Williams, who is no longer in Respondent's employ. He requested Williams to advise Department Manager Pittman that he was unable to come in Saturday to work his 7 a.m. shift because he had twisted his ankle.' Williams agreed and promptly prepared a note to that effect and left it on Pittman's desk. According to Flakes, he had injured his ankle as he was walking up to his apartment between 7 and 7:30 Friday evening. Flakes did not report for work Saturday at his scheduled time. After Department Manager Golden arrived, he was informed by Williams of Flakes' telephone call that he would not be in because he was sick.'6 Subsequently, Golden advised Superintendent Herndon of Flakes' ab- sence and that Flakes left a telephone message with Wil- liams that he would not be in because he was sick. Golden also related to Herndon his Thursday conversation with Flakes and Flakes' statements to electrician Kurtz in which Flakes had expressed his intention not to come in to work Saturday at straight time. In addition, Golden told Hern- don that he had heard remarks made by Flakes and several other employees questioning Smith's supervisory authority and revealing a lack of respect for Smith's status and that he (Golden) had spoken to Flakes about his attitude. Hern- don, thereupon, directed Golden that if Flakes came to work Sunday morning to suspend him for 3 days and in- struct him to report to the personnel office the following Tuesday morning (June 8). On Sunday morning Flakes came to work. Supervisor Smith escorted him to Golden's office where Golden, in accordance with Herndon's orders, informed Flakes that he was suspended and to report to the personnel office the following Tuesday morning. In answer to Flakes' inquiry, Golden stated that this action was taken on account of his Saturdays absence. Flakes declared that he had hurt his °3 The foregoing findings are based on the credible testimony of Smith, Golden, Pittman, Kurtz, and Trawick. I reject Flakes' denial that he ever had such conversations in which he stated that he would not work on Satur- day at straight time, although Flakes might have worked several Saturdays at straight time. I am not convinced that the witnesses who gave contrary testimony collaborated to concoct the accounts I have credited. 14 Under the Company's rules, employees who intend to be absent are required to report their contemplated absence to their supervisor at least 2 hours before their shift is scheduled to begin. A failure to do so results in an unexcused absence for which a verbal warning is given for a first offense, a written warning for a second offense, and a discharge for a third offense within a 6-month penod. This rule is also applicable to other types of mis- conduct except that in cases of serious offenses, such as stealing, gross insub- ordination, or possession of firearms, outright suspension and ultimate dis- charge might be imposed without prior warnings. 's Flakes had broken this ankle the previous February and was given an 8 weeks' leave of absence to recover. 16 Williams similarly reported this call to Supervisor Smith. 697 DEC(ISIONS OF NATIONAL LABOR RELATIONS BOARD ankle and had notified Third Shift Supervisor Williams of his contemplated absence. Golden acknowledged receiving that message. Commenting that he was being treated differ- ently from other employees under Respondent's absentee- ism policy, Flakes requested Golden to check his attend- ance record. This Golden did and noted that Flakes only had a total of two excused absences. Golden, however, told Flakes that absenteeism was not the reason for his suspen- sion.' On this occasion both Golden and Smith testified that they did not observe anything wrong with Flakes' an- kle and that he walked normally without any limp. Flakes, on the other hand, testified that the swelling of his ankle had gone down somewhat by Sunday morning so that he could walk but not without "hopping." On Tuesday morning. June 8, Flakes reported to the per- sonnel office. In the presence of the then Personnel Director William H. Miller and Department Manager Golden, Su- perintendent Herndon told Flakes that the Company could not tolerate anyone refusing to work on Saturday and that a decision was reached to terminate Flakes for this reason. When asked whether he wished to say anything, Flakes answered in the negative but expressed disagreement with Miller's statement that he was discharged for good cause. A discussion then ensued respecting Respondent's absentee policy in the course of which Flakes stated, apparently in explanation of his absence on Saturday, that he had hurt his foot. Miller thereupon inquired whether Flakes had vis- ited a doctor and Flakes replied that he had not. The exit interview ended with Miller requesting Flakes to surrender his plant pass." The decision to terminate Flakes was made by Herndon on the basis of information received from his subordinate supervisors as previously related, and after consulting with Personnel Director Miller. According to Herndon, he de- cided to discharge Flakes for insubordination in defying Supervisor Smith's order to work Saturday, June 5, even though it meant working at straight time, and that the seri- ousness of this offense did not require prior warnings under company policy. He further testified that in reaching this decision he took into consideration the need to vindicate Smith's supervisory status and authority which Flakes and other employees were reluctant to accept wholeheartedly. Herndon also categorically denied that Flakes' union activi- ties, discussed below, in anyway prompted the discharge. Notwithstanding the foregoing, the General Counsel ar- gues that Flakes was discharged on account of his union activities and that the reasons advanced by Respondent were mere pretexts to conceal its real motive to get rid of a prominent union advocate. In support, the General Counsel alludes to Flakes' active involvement in the three successive union election campaigns in 1973, 1974, and 1976 in con- nection with which Flakes engaged in the distribution of union leaflets and other literature at the front and back gates of the plant; acted as observer for the Union in the 1973 and 1976 elections: attended a representation hearing; 11 The foregoing findings are based on the combined testimony of Flakes, Golden, and Smith. Whatever variances there are in their accounts, they are of no consequence to my ultimate determination. I This narration of the discharge interview reflects the substantially undis- puted material parts of the testimony of Flakes, Herndon, Miller, and Golden. and had his voice recorded on the coda-phone which con- veyed union messages over the telephone. Admittedly, Re- spondent's supervisors have long been aware of Flakes' union sympathies. Solely as background, Flakes testified that in 1975, about 6 months before the election and appar- ently before the Union renewed its latest campaign, Super- intendent Herndon asked him whether he was convinced that there would not be a union in the mill and that he replied that he was not convinced yet. Flakes further testi- fied that, continuing the conversation, Herndon mentioned that supervisors were being sent to school to become better supervisors and that, when he (Flakes) remarked that su- pervisors should learn how to treat employees equally, Herndon stated that if Flakes were not for the Union he probably would go places with the Company. Herndon de- nied telling Flakes that he could go places in the Company if he were not for the Union, although Herndon admitted and it is undisputed that he had many union discussions with Flakes over the past 4 years. Flakes also testified to another "smart" remark Herndon made to him in the canteen about 2 weeks before the 1976 election in the presence of Supervisors Golden and Dunn whether Flakes had not yet got tired of that "union trash," which Flakes understood referred to union literature he had distributed in the morning." Herndon and Golden in their testimony denied that such a statement was made. More- over, according to Flakes' uncontradicted testimony, a day after the April 23, 1976, election, he was taunted by De- partment Manager Pittman who reminded him that Re- spondent had won the election which the union supporters had lost. From my careful analysis of the record, I find that the evidence does not sustain the General Counsel's position that Flakes' termination on June 8 was motivated by his past union activities which, incidentally, appear to have ended following the results of the April 23 election. As found above, Flakes made known to Supervisor Smith that despite the latter's instructions he (Flakes) was not disposed to work on Saturday, June 5, as he and his department were scheduled to do, because he would be paid only at straight time, while other employees who had worked 40 hours dur- ing the week would be paid overtime rates at time and a half. Flakes also made known his intentions to General Manager Golden, who was scheduled to be in charge of the Saturday operation, and to two fellow employees. In this context, therefore, when Flakes failed to report for work on the Saturday in question he made himself vulnerable to dis- ciplinary action for disregarding his official work assign- ment and, in particular, for disobeying Smith's orders. Un- der the circumstances, it can hardly be argued that Respondent exceeded its managerial rights to suspend and then to discharge Flakes for what it conceived to be demon- strated insubordination, especially in view of Respondent's belief that such action was necessary to vindicate Smith's 19 Flakes testified to another statement Herndon made to him at an undis- closed time probably in 1975, which was received as background, that, if the Union got in, it could cause him to lose his job. However, in his pretrial affidavit given to a oard agent, Flakes stated that Herndon never threat- ened him in any way. Flakes' explanation of the inconsistency was that he did not consider Herndon's remark in question a threat. I, accordingly, credit Herndon's denial that he ever threatened Flakes that he could lose his job on account of the Union 698 SWIFT TEXTILES supervisory status and authority which Flakes and other employees did not see fit to respect. Indeed, not only is there evidence that other employees have been terminated for insubordination, but no evidence of disparate treatment in imposing such discipline for a similar offense was shown. Moreover, even assuming that Flakes had really intended to come to work on Saturday at straight time but was pre- vented from doing so because of his asserted injury to his ankle, it does not follow that Respondent acted so unrea- sonably in attributing Flakes' absence to his previously an- nounced refusal to work on Saturday at straight time20 as to justify an inference that the suspension and discharge were discriminatorily motivated. Nor am I persuaded, as the General Counsel argues, that Flakes' past support of the Union in three election cam- paigns inescapably establishes that he was terminated for this reason. Admittedly, Flakes' union activities were open and well known to Respondent for 3 or 4 years without any adverse action having ever been taken against him. Fur- thermore, it is clear that an employee's union activities do not insulate him from discharge for legitimate or other non- discriminatory reasons which are present here. Similarly, under the facts of this case as related above, Respondent's conceded past opposition to the Union's efforts to secure representational rights is insufficient evidence of discrimina- tion where, as here, legitimate reasons existed for Respon- dent's action. Perhaps there are factors present in this case which create suspicion of Respondent's motivation, such as Flake's competency as a beamer frame operator, his long tenure with the Company, his involvement in the Union, and Respondent's continuous union opposition. However, suspicion is not an adequate substitute for the evidence re- quired to establish unlawful discrimination. All things being considered, I conclude that the General Counsel failed to sustain his burden of proof that Flakes' discharge was in violation of Section 8(a)(3) and (1) of the Act. Accordingly, the relevant allegations of the applicable complaint will be dismissed. 2. Culler Culler began working as an elevator operator in weave room I in February 1973 under Department Manager John P. Garrett and Alton J. Milam, a supervisor in that depart- ment. Culler continued in that job until the latter part of 1975. Because he disliked his elevator job, which had be- come too onerous for him, Culler bid for a weaver's posi- tion which had opened up and was posted. Although Gar- rett and Milam tried to dissuade him from applying for the weaver's job because they thought it was more physically demanding than the elevator job and because he might be too slow to do weaver's work, Culler refused to heed their advice Since Culler had seniority over the other applicants, he was selected for weaver training on December 4, 1975. It soon appeared-and the training department so informed Garrett and Milam-that Culler was making very little pro- gress during his training period and that he would never make the grade as a weaver. Both Garrett and Milam dis- 0 Supporting an inference of reasonableness is the testimony given on behalf of Respondent, which I find credible. that when Flakes reported for work on Sunday he was observed to walk normally without a limp. cussed the situation with Culler and suggested that since the 30 days the Company allowed an employee to decide whether to return to his former job had not et elapsed,2 he ought to consider that option. Culler acknowledged his dif- ficulties and agreed to return to his former job, which he did on Januarv 5, 1976. In April, a loom cleaner's job became available when the employee holding that job transferred to weaving. Culler bid for this position and obtained it on the basis of senior- ity. Although here, too, Milam tried to convince Culler not to transfer because he thought the job was more difficult than running an elevator, Culler insisted that he could han- dle it. On April 9, Culler became a loom cleaner which required mopping up and cleaning around 219 looms which were then in operation.22 As subsequent events proved, Culler, despite his diligent efforts, was unable to do a satisfactory and acceptable loom-mopping job. Although after a period of time Culler learned to mop up and clean around a loom in a fairly presentable manner, he was unable to reach all the looms assigned to him2' as his predecessor had done and who also had time for other tasks. Milam frequently spoke to Culler about his performance and tried to help him to improve but without much success. After about 3 weeks on the mopping job, Milam told Culler that it looked like he could not han- dle his responsibilities and suggested, as he had done in connection with his weaver transfer, that since the 30-day option period was about to expire he should give thought to the idea of returning to the elevator job. Culler rejected the suggestion, expressing confidence in his ability to perform his mopping duties. On May 3, after speaking to Culler about his poor per- formance on a number of prior occasions, Milam sum- moned him to his office and gave him a verbal warning for not cleaning around the looms. The next day Milam again warned him verbally for being too slow in his work. Follow- ing these discussions Culler continued to exert his best ef- forts. However, he apparently lacked the physical stamina to do more than the small number of looms he was able to cover. On June 10. Milam ushered Culler into the office where he handed him a written warning that he was doing a very poor job in mopping and cleaning around all the looms he was required to do. Milam also warned him on this occa- sion that if his performance did not improve he would be terminated. Culler signed the written warning, acknowledg- ing that it was read and explained to him. Culler also as- sured Milam that he could do his job. On July 27, Respondent installed an additional 36 looms which normally would have been Culler's responsibility to mop and clean around. However, since Culler was unable adequately to take care of the 219 looms assigned to him, other employees did the mopping work around the new looms. There is also testimony that Culler at one time, while holding his mopping job, was temporarily detailed to :1 It has been the Company's policy for mans years to give employees who transfer to other jobs In the mill the option to return to their former positions within 30 days. 12 As will be noted below 36 looxms were added on July 27 making a total of 255 which had to be mopped around. :2 Loxoms are mopped and cleaned around onl? on the irst shift. 699 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operate the elevator for 4 or 5 days while the regular eleva- tor operator was in the hospital." During this time another employee temporarily substituted for Culler on the mop- ping job and was able to reach all the looms. Notwithstanding Milam's many conversations with Cul- ler and warnings concerning the latter's poor job perform- ance, Culler's work did not improve. As a final response, Culler indicated to Milam that his performance was the best he could achieve. Milam's answer was that Culler's best, therefore, was not good enough. As a result, Milam recommended to Department Manager Garrett that Culler be terminated for poor job performance.26 Garret approved. At the hearing both Garrett and Milam denied that Culler's union activities entered into their decision. According to them, they also considered the possibility of transferring Culler to another job in lieu of discharge but none was available which they thought Culler was capable of per- forming. Milam further testified that the reason Culler was kept on his mopping job as long as he was was the fact that Culler was determined and tried so hard to perform well. On Saturday, September 11, Milam informed Culler that he was being suspended and to report the following Mon- day morning to the personnel office, which Culler did. On the latter day, in the presence of the then Personnel Direc- tor Miller, Garrett told Culler that he was terminated and referred to Culler's unsatisfactory performance as a loom cleaner and the prior verbal and written warnings he had received. Culler's only comment was that he did his best. At Miller's request Culler handed over his I.D. card and left. It appears that other employees have previously been dis- charged for unsatisfactory job performance. Following Cul- ler's termination, he was replaced by a new hire who, unlike Culler, has been able to mop around all 255 looms daily and, in addition, to clean the stair tower. The General Counsel maintains that the real reason for Culler's discharge was his union activities. According to Culler, his union involvement consisted of his participation in the Union's 1976 organizational campaign during which he distributed union authorization cards among the em- ployees; visited their homes where he secured some 300 signed cards; on one occasion in about February, he passed out leaflets at a plant gate; and attended union meetings. I find no merit in the General Counsel's contention which I find is not supported by the record. It is clear from my foregoing findings that Culler was terminated on account of his inability to perform the full requirements of his mopping and cleaning job, after having been warned verbally and in writing of the consequences of his shortcomings. The fact that Respondent waited approxi- mately 5 months before taking this action in the hope that he would improve does not necessarily reveal, as the Gen- eral Counsel urges, an employer bent on punishing him for 2 Mi;Am also testified to another occasion when Culler relieved the eleva- tor operator for a few hours. Culler indicated in his testimony that he had temporarily relieved the elevator operator more often. Resolving such con- flicting testimony is unnecesary to a disposition of the discrimination issue. 2 The foregoing findings are based principally on the testimony of Milam and Garrett, whose recollection of the events impressed me to be more reli- able than Culler's. Moreover, company records corroborate, in part, the credited testimony. 26 As previously noted, under company policy, an employee is subject to discharge after receiving a verbal and a written warning for the same offense or deficiency. his past union activities. This is particularly so here, where the record is barren of any evidence of a renewed union movement following the Union's defeat in the April 23 elec- tion, much less of Culler's participation in such activities, from which an inference might possibly be drawn of a de- termination on Respondent's part to frustrate a new union campaign. Nor do I find incredible Supervisor Milam's ex- planation that he allowed all the time he did for Culler to improve only because Culler tried so hard and expected to master the mopping job. As further evidence of discriminatory motivation, the General Counsel relies on a statement Milam allegedly made to Culler on two separate occasions 2 days apart in February, when Culler still held the job of elevator opera- tor. In that statement Milam supposedly remarked that he knew that Culler was for the Union and that "if . . . [he] wasn't a good worker, . . . he'd run . .. [his] ass off." 7 Not only do I question the reliability of Culler's recollection that such a statement was made, but, assuming that it was, I find it too remote and equivocal to taint a discharge effected 7 months later under the circumstances recited above. Fi- nally, the discharge visited on Culler for poor performance was no different from that suffered by other employees who failed similarly to meet the grade. In sum, I conclude that the General Counsel has failed to prove by a preponderance of the credible evidence that Cul- ler's termination violated Section 8(a)(3) and (1) of the Act. Accordingly, the relevant allegations of the complaint will be dismissed. 3. Hudson Hudson worked for Respondent from 1964 until his dis- charge on May 7, 1976, s progressing through various posi- tions to loom fixer, a job he held at the time of his separa- tion. Until the latter part of January 1976 the looms Hudson repaired and maintained were standard C-4s which were being replaced with the newer and more sophisticated DLG looms. As the new looms required half the number of fixers previously utilized and as Hudson lacked sufficient seniority, he was transferred on that date from his job on the first shift under Milam's supervision to the third shift (I I p.m. to 7 a.m.) where, under Vincent Laquitara's super- vision, he worked on 36 DLG looms in the annex or so- called "hole," which was a level below the main floor of weave room 1. Visibly upset by this transfer, Hudson com- plained to management but to no avail. In fact, Hudson did not report for third shift duty the first night of his assign- ment but, instead, distributed union campaign leaflets out- side the plant.25 Significantly, this occasion of leaflet distri- 27 This statement will later be discussed as an alleged independent viola- tion of Sec. 8(aX) of the Act. 21 Hudson's testimony that he was terminated on Aprl 26, 1976, appears to be erroneous. As will later be shown, not only is there a notation in his attendance record of having received a verbal warning on April 28, 1976 (Resp. Exh. 20), but also a written warning dated May 8, 1976 (Resp. Exh. 23) was given to employee James Brooks for leaving the plant early on the same day Hudson violated the same company rule resulting in the latter's discharge. 29 Because Hudson failed to notify his supervisor in advance of his ab- sence, as required by the Company's rule, he received on January 25, 1976, a verbal warning for his unexcused absence which was noted on his attendance record. 700 SWIFT TEXTILES bution is the only instance of union activity engaged in by Hudson, except that he had also signed a union authoriza- tion card while working on the first shift, without the knowledge of his then supervisor Milam.? Although a satisfactory fixer of C-4 looms, Hudson had trouble repairing the DLG looms. Clearly, Supervisor Laquitara had a low estimate of Hudson's job performance on the DILG looms, discussing the subject with him on dif- ferent occasions but never issuing written warnings. In Laquitara's opinion, Hudson was unable to fix a DLG loom without the assistance of fellow fixers. Not surprisingly, Laquitara's lack of confidence in Hudson's ability created bad feelings between the two of them. Indeed, on one occa- sion when Supervisor Milam temporarily substituted for several days for Laquitara on the third shift during the lat- ter's absence, Milam talked to Hudson about the tension between him and Laquitara and his difficulty in getting along with his supervisor, noting that this situation could only result in Hudson's hurting himself. Hudson replied that he would not hurt himself and that Milam need not worry.11 Conceding that Hudson's asserted poor job performance did not bring about his discharge, Respondent contends that it was his leaving his department before his shift ended, in the face of prior warnings, that prompted his termina- tion. The General Counsel, however, argues, in disagree- ment with Respondent, that Hudson's discharge and the warnings given to him were actually due to his union activi- ties. The facts and circumstances leading up to and surround- ing the warnings given to Hudson and his ultimate termina- tion are as follows: On March 11, 1976, at about 6:25 a.m. before the close of his third shift, Hudson left his 36 DLG looms to wash up, although seven of the looms had flags on them indicating that they needed some attention. Upon being apprised of this, Laquitara searched for Hudson and found him in the washroom washing up preparatory to leaving. It is Respondent's policy to allow loom fixers to wash up 15 minutes before the end of the shift, which for third shift fixers would be 6:45 a.m.. but not to leave their department before the end of the shift announced by a buzzer and red and yellow flashing lights. As a consequence of his leaving his work station too early, especially since seven looms had flags on them, Hudson was given a verbal warning." The next occasion Hudson received a warning was on April 8 when he and Walter Underwood, another fixer, were observed by Supervisor Laquitara leaving the mill 5 0 On January 30. 1976, Hudson's home burned down and, at his request. Department Manager Garrett temporarily reassigned Hudson to the first shift for I month. 31 As will later be discussed, this finding reflects essentially my interpreta- tion of he testimony presented with respec to the allegations of the com- plaint that Supervisor Milam. in violation of Section 8(alI) of the Act. threatened reprisals for engaging in union activities. 12 This verbal warning was noted on the reverse side of Hudson's attend- ance record, as was another verbal warning which was subsequently given to Hudson on April 28 for leaving his job without his supervisor's permission. The latter warning related to an incident when Hudson left his looms to be at another fixer's loom while Hudson's looms had flags on them, There is also uncontradicted testimony that Laquitara reprimanded Hudson a number of times for taking excessive breaks, which conduct, however, admittedly did not enter into Respondent's discharge decision. minutes before the 7 a.m. quitting time by passing through the dye room, an unauthorized area, to reach the back gate. For this offense Hudson was given a written warning by Department Manager Garrett and Laquitara. This docu- ment, which is quoted below,t l noted, among other things, that prior verbal warnings had previously been given to Hudson and that a repetition of the offense would "result in dismissal." Hudson signed the warning, acknowledging that it had been read and explained to him. Underwood, in a separate interview, was given a similar written warning, t while another employee, James Brooks, who also had left his department at the same time as Hudson and Under- wood only received a verbal warning because he had not previously been warned. On Friday, May 7, while walking through an overhead passageway, Laquitara observed Hudson, Brooks. and an- other employee, Helen Simpson, leave the mill approxi- mately 5 minutes before the 7 a.m. close of the third shift." Laquitara thereupon went to General Manager Garrett's office. While there. about a minute later, the buzzer sounded for the change of shifts. Laquitara reported to Garrett the early departure of the three named employees. receiving, in turn, instructions from Garrett to invoke the disciplinary action which was subsequently taken. When Hudson came to work at II p.m., Friday night, Laquitara informed him that he was being suspended for leaving the mill earlym and directed him to report the fol- lowing Monday morning to the personnel office. Laquitara then asked Hudson for his pass, which Hudson surren- dered, and Laquitara escorted him to the gate. Subse- quently, Brooks was given a written warning on account of " The warning record read. as follows On this date, I talked with the above employee [Hudsonl concerning Company Policy G-2 Section B Leaving job or assigned work area without permission. Bill) Hudson left plant early this date through an unauthorized area, He was seen by supervisor going through Dye House. Mr. Hudson has had verbal warnings about being off job and leaving work area early. For his and other employees safety the Boiler Room or Dye House is not a marked off area of exit. Any more of this will have to result in dismissal since this i only a part of Section B. He has been read the entire section. 4 On September 28. Undersood. while employed on another shift. was discharged for leaving his department early. having already received a verbal and a written warning as required by Respondent's rule mentioned earlier in this Decision. 35 According to Hudson's testimony. he left the plant only about a minute early at a time when he was anxious to get home because he was upset and nervous over the fact that Laquitara had assigned him to 60 DLG looms during the week. een though Laquitara had expressed dissatisfaction with his handling of the 30 or 36 DLG looms previously assigned to him. Hudson further testified that a former company official had also threatened him with discharge if he did not satisfactorily perform his Job on those 60 looms. I have serious doubts that Hudson was fully aware of the exact time he left the plant, although it is not important to my ultimate determination. As for the increase in the number of DLG looms assigned to Hudson. Laquitara explained that this was a matter of convenience in order to locate Hudson near Underwood and Floyd, more experienced fixers who had been helping Hudson in his work, and that this required assigning to Hudson another fixer's 60 looms, which were situated near Underwood's and Floyd's work area. and transferring the other fixer to Hudson's looms which were located in the annex or so-called "hole" which was a level below. 3' Hudson testified that Laquitara on this occasion told him he was being disciplined for leaving the mill one minute earl). Laquitara denied making such statement I have serious doubts that Laquitara would minimize the amount of time involved in Hudson's early departure I find Laquitara's denial more plausible. In an) event, even crediting Hudson's account. my ultimate conclusions would not be different. 701 DECISIONS OF NAHIONAL I.ABOR RELATIONS BOARD his early departure since he had already been given a verbal warning for a similar offense. As for Simpson, she received a verbal warning as she had not been previously warned. At the scheduled time Monday morning Hudson re- ported to the personnel office where he met Personnel Di- rector Miller and Department Manager Garrett. Garrett told Hudson that he was being terminated for leaving his job early. despite prior warnings. Hudson mentioned that he had left only about a minute early and that every morn- ing some 20 to 30 third shift employees wait at the gate to leave when the shift ended. Miller replied that "they were working on that." Finally, Hudson expressed his opinion that his discharge was really due to his union activities. When Miller inquired why Hudson felt that way. Hudson turned around and departed without answering.3 At the hearing Respondent's witnesses disavowed that Hudson's union activities. whatever they amounted to, entered into its decision to terminate or issue any warnings to him. It appears that employees leaving their department early in disregard of the Company's rule has been a recurrent problem at the mill probably made more difficult by the fact that the rule is not uniformly and consistently enforced. However, although it appears that some supervisors are more tolerant than others, the evidence related above indi- cates that Supervisor Laquitara, at least, is more strict than others in enforcing the rule. Moreover, it further appears that in disciplining offenders, Laquitara, as well as Depart- ment Manager Garrett, paid no attention to whether or not the offender was a union supporter as shown by the fact that Simpson. a company observer at the April 23 election, was disciplined, and the union attitude of other disciplined employees was unknown to Respondent. In light of the evidence recited above. I find that the General Counsel's proof' falls far short of establishing that Hudson's discharge was discriminatorily motivated. On the contrary, it is clear that the termination was in accord with the Company's disciplinary policy which required a verbal warning for a first offense, a written one if the offense oc- curred again and a discharge if the infraction occurred a third time. Here, the evidence discloses that Hudson left his department early on at least three occasions for which he received a verbal and a written warning, the last carrying the additional caution that dismissal would follow if the offense were repeated. In these circumstances, it would be without evidentiary foundation to attribute the warnings thus issued to Hudson and his subsequent discharge to his union activity which, at best, was minimal consisting, as it did, of an isolated instance of leaflet distribution provoked by Hudson's transfer to the third shift on the basis of his low seniority standing. Moreover, the leaflet distribution was undertaken about 3-1/2 months before his termination and 3 months before the April 23 representation election. Perhaps Department Manager Garrett and Supervisor Laquitara might have been too harsh with Hudson. How- ever, this factor alone is not sufficient upon which to base an inference that antiunion considerations entered into Re- spondent's decision. 37 The findings respecting the exit interview are based on portions of the testimony of tludson, Garrett, and Miller which I believe reveal what prob- ably transpired on this occasion. Accordingly, I conclude that the General Counsel has failed to sustain his burden of proving that the warnings to Hudson and his ultimate discharge were discriminatory within the meaning of Section 8(a)(3) and (1) of the Act. The applicable allegations of the complaint will therefore be dismissed. 4. Carroll Except for a -year interruption in service, Carroll worked for Respondent from 1958 until his discharge on September 17. 1976. At the time of his termination, Carroll was a loom fixer on the first shift in Weave Room 2 under the overall supervision of Department Manager Michael B. Boyette and the immediate supervision of Byrdine Smith. His job for many years involved the maintenance and re- pair of' 62 looms. Carroll's general ability as a loom fixer is not questioned. Indeed, it appears that on the average his looms produced less cloth of second quality than the looms of other fixers. Carroll was an active participant in the Union's most recent representation election campaign in 1976, as well as the previous one in 1974. During the last campaign, which culminated in the election held on April 23. Carroll openly distributed leaflets and union buttons at the plant gates probably 15 to 20 times; served as one of the Union's elec- tion observers: recorded union messages on the coda- phone; attended the representation hearing; secured signa- tures to approximately 100 union authorization cards; and attended union meetings. He engaged in similar activities in 1974. Respondent concedes that it was aware of Carroll's union activities during both the 1976 and 1974 campaigns. It is also undisputed that Respondent conducted campaigns of its own to defeat the Union at the polls. About 3 weeks before the April 23 election. General Manager Boyette summoned Carroll to his office where he expressed his opinion that he could not see how the Union could do the employees any good, noting that the Union had done nothing for the employees of Fieldcrest. another textile employer. Carroll retorted that the employees were not concerned with Fieldcrest, only with Respondent, and predicted that the Company would ultimately go union. Stating that he was glad to know how Carroll felt about the Ulnion, Boyette added that he disagreed with Carroll's pre- diction. On or about May 12 following the Union's defeat at the last election, Boyette engaged Carroll in another conversa- tion in which he accused Carroll of thumbing through the papers in supervisors' desk baskets. When Carroll denied it, Boyette stated that he had witnesses and that he, himself, had seen him do it on previous occasions. Carroll, in turn. charged Boyette with trying to make him mad and with harassing him, which Boyette denied. The conversation ended with Boyette telling Carroll that he knew how he felt about the Union and to get on with his job and keep his mouth shut.38 Relying on Carroll's union involvement and the forego- ing Boyette-Carroll conversations as evidence of union ani- ii According to Boyette's testimony, he gave Carroll a verbal warning on this occasion. This is not one of the warnings alleged to have been discrimi- natorily given to Carroll. 702 SWIFT TEXTILES mosity, the General Counsel urges, as two complaints al- lege, that a written warning given to Carroll on March 31 before the April 23 election, the warnings issued to him about 5 months after the election on September I I and 14, and Carroll's discharge on September 17 were discrimina- torily motivated and violated Section 8(a)(3) and (I) of the Act. Respondent, of course, argues that its actions were prompted by valid reasons unrelated to union consider- ations. The relevant facts are as follows: March 31 Written Warning About 2 weeks before the March 31 warning was issued, Supervisor Smith told Carroll that he had been seen during working hours in the shop area, which was on a different floor from his regular work place, talking to employee Mil- ner in the motor room where Milner worked. Carroll's an- swer was simply that other employees also visited in the shop area. Smith gave Carroll a verbal warning for being there without permission and directed him to stay out of the motor room and shop area unless he had a work order. It appears that other weave room 2 employees also had been spending time in the shop area. This practice was called to General Manager Boyette's attention just before Carroll's above-noted verbal warning by plant engineer King. who had an office in the shop area. Determined to halt this prac- tice, Boyette requested King to inform him when any of Boyette's employees were there without a work order or permission. About 8:30 or 9 in the morning of March 31, Carroll had the occasion to be in the shop area to fill a work order. While passing employee Milner's motor room. Carroll put his head through the partially opened door and shouted to Milner that he wanted a ride home in the afternoon. Carroll then proceeded on his mission. Later in the morning Carroll returned to the shop with another work order and, as be- fore, when he reached the motor room he again called out to Milner through the door opening, reminding him that he expected a ride home. After Carroll left the shop area, Boyette received a tele- phone call from the shop clerk that Carroll was in the mo- tor room where he had no business to be. As a result, Boy- ette discussed the situation with Smith and wrote up a warning which stated that Carroll "was observed entering [a restricted area] twice today" and that Smith had previ- ously spoken to Carroll for the same conduct. Continuing, the warning cautioned Carroll that if he had to leave his work area, he should have his supervisor's permission and go di- rectly to the Department or Area specified. He should take care of the necessary business and return directly to his work area. If this type thing continues to happen f.'rther disciplinary action will be taken. Subsequently, Carroll was summoned to Boyette's office and, in Smith's presence, Boyette related the substance of the written warning which Carroll refused to sign as he was requested to do. Carroll denied that he had entered the motor room and inquired who had given Boyette that infor- mation. Boyette declined to identify the informant but sug- gested that he obtain the information from the personnel office. At some point in the conversation, Smith remarked to Carroll that he was his best loom fixer and that he would hate to lose him. Following this meeting, Carroll tried to ascertain from several employees the identity of the individ- ual who had reported that he was in the motor room talking to Milner.' The September Warnings and Discharge Almost 5 months elapsed since the April 23 election be- fore a series of events occurred which led to the issuance of two written warnings to Carroll and his ultimate discharge on September 17. These events developed in the context of a comprehensive program instituted in June by Hubert A. Connor, the newly appointed manager of the fabrication plant, to upgrade the quality of the Company's product and to reduce the amount of off quality goods manufactured. On Friday, September 10, while walking to his office through the burling or gray inspection area in the mill, Connor noticed severe streaking on a roll of indigo dye denim which had been woven on loom 355. As was later ascertained, this was one of Carroll's looms. Because of the severity of the streaking, Connor attributed it to the blend level of the cloth, which consisted of polyester and cotton, and believed that, for this reason, the blend would not ac- cept the dye properly, thereby causing the streaks." Connor thereupon conferred with James Chapman, the manager of the dyeing room, and together they proceeded to Weave Room 2 where loom 355 was located, picking up Boyette, the manager of that department. on the way. Before reach- ing the weave room, the three officials passed the canteen or break room where Carroll and other fixers were seen taking a break. Although Boyette suspected that all of them were not scheduled to take a break at the same time, Boyette made no comment4' but continued on his way to the weave room 2 with Connor and Chapman. When they arrived there, they went to loom 355, examined it and, in particu- lar. the warp42 and the reed. In the meantime, Carroll left the canteen and returned to the weave room and posted himself nearby watching the officials without saying a word to them. After inspecting the loom, the three officials con- cluded that the streaked cloth was probably due to the warp. As the warp still had approximately 50 yards left and as the operation of the loom itself did not appear to them to be the cause of the streaks, the officials decided to allow the warp to run out. while Chapman undertook to check into the level of the blend. When the warp ran out on the next shift, it was replaced by another warp which lasted until the following Monday. According to Connor, there was no rea- son to believe that the succeeding warp would produce streaked cloth. However, it did, as Connor learned on Mon- day morning, September 13. '9 There is also testimony that a day before Carroll receised the March 31 warning, Smith had told him to keep out of the lye-in room unless he had business there According to Carroll, Smith entered the tye-in room while he was there to get some nylon. It appears that at this time seseral employees were discussing the Union while Carroll was listening and probably made some remarks. Smith's order to Carroll, which apparently was also directed to the other employees. is not alleged to be discnminatory. 4 There could be other causes for the streaking 41 As will later be discussed, a wntten warning was subsequently issued to Carroll for being In the canteen at the wrong time 42 The warp is a roll of thread in the back of the loom from which the cloth is produced 703 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After Connor, Chapman, and Boyette parted, Boyette decided to ascertain whether Carroll or the other fixers he had earlier seen in the canteen taking their break did so at an unscheduled time. Boyette testified that on previous oc- casions fixers, weavers, and other employees had been cau- tioned to take their breaks at scheduled times. He further testified that, if any employee were in the canteen at the wrong time, he would do something about it. Boyette went to Supervisor Smith's office where he checked the break schedule which disclosed that it was Carroll who had been there at the wrong time. Boyette also inquired of Smith and Supervisor Huff whether they had given Carroll special per- mission to take a break at an unscheduled time. Upon re- ceiving a negative answer, a warning to Carroll was written up for taking a break at the wrong time with an admonition that if such conduct continued he would be subject to dis- missal. Because Carroll had already finished his shift and gone home by the time the warning was prepared. Boyette, in Smith's. presence, issued the warning to him the next day, Saturday, September 11. Carloll, however, refused to sign the warning, insisting that he was in the canteen within his scheduled time. Boyette, on the other hand, stated that, according to his watch, Carroll was there beyond his as- signed time. In response, Carroll asserted that several of the other employees were in the canteen at unscheduled times, adding that it was not unusual for employees to do so. However, Boyette testified that he did not know whether these employees were given permission to take their breaks when they did. Carroll also gave testimony that there were employees who took breaks longer than their allotted time, apparently without being disciplined, although there is no evidence, except as presently indicated, that supervisors were aware of it. At best, if such were true, this testimony suggests lax policing by supervisors. In any event, there is nothing in the record indicating that the asserted favored treatment was due to union-related considerations. Carroll further alluded to an occasion when Smith was in the can- teen and Carroll called his attention to the presence of sev- eral employees outside their scheduled breaktime. Smith re- marked that he was watching them. On another occasion, Smith gave an employee a verbal warning for taking an unscheduled break. On Monday morning, September 13, the head burler of the burling or gray inspection department called Depart- ment Manager Millard Snell's attention to a cut of streaky cloth which came off loom 355 and asked for his opinion. Being under the impression that the streaks were dye streaks, Snell summoned Roger A. Herndon, superinten- dent of dyeing, beaming and slashing. Upon examining the cloth. Herndon indicated doubts that the streaks were caused by the dye, although he conceded they seemed to be. At this juncture, Connor approached the inspection table and remarked that the streaking on the cloth was similar to the streaking on another roll of cloth from loom 355 which he had seen the previous Friday. However, when this cloth was compared to a new roll of cloth of the same style which came from another loom.43 Connor concluded that his 43 This particular style denim had been run on different looms in the Weave Room 2 for several months. There is testimony that loom 355 began making this style at the end of August. blend and dye theory was probably erroneous and that the cause might be the reed on loom 355. Connor. Snell, and Herndon then proceeded to the weave room 2. There, at about 11 a.m., Connor asked Supervisor Huff, who was in the office at the time, to change the reed on loom 355 in order to ascertain whether a new reed would rectify the streaking. Connor then departed while Snell and Herndon went to view loom 355. There, they inspected the warp and, with the loom stopped, they examined the reed before it was changed. After Herndon left Snell to visit another area in the weave room, Carroll approached Snell. who was starting up the loom." Snell asked Carroll for his opinion of the cause of the streaking. Carroll responded that it was the reed. When Snell remarked that he had checked the reed and thought it was in good order, Carroll replied that he had seen that problem arise before and that the reed had to be changed in order to correct the situation. Carroll then made the comment that supervision came up there, "snooped around" his loom, and did not even ask him what was wrong with the job.45 About 15 minutes after Snell's departure, and in accord- ance with Connor's instructions, Carroll was directed to prepare the loom for rereeding, which he did. Another em- ployee regularly assigned to such work thereupon made the reed change and the streaking was remedied. On Tuesday morning, September 14, while Snell was in the weave room 2 in search of boxes, he was accosted by Carroll who asked him whether he had checked loom 355 again. Snell an- swered in the negative but that he would. Both of them then proceeded to loom 355 and found that, with the changing of the reed, the streaking had ceased. Snell, nevertheless, ex- pressed surprise since he had been unable to find any de- fects in the old reed, while Carroll stated that before the rereeding, the streaking had continued even though the warp had been replaced with a new warp, thus indicating that it was not a dye problem." Later in the day Snell saw Connor. Prefacing his remarks with a statement that he wanted Connor to know what a smart fixer Connor had in Carroll, Snell related the conver- sations he had with Carroll on the previous Monday and Tuesday mornings. Snell informed Connor that Carroll on Monday told him it was the reed that caused the streaking, and that on Tuesday morning he and Carroll viewed loom 355 which showed that the reed had corrected the streaking problem. Snell also told Connor that one of the reasons Carroll gave for concluding that the reed was the cause was the fact that the cloth continued to streak after the warp had been changed. Snell further related that Carroll had ' Snell testified that he started up the loom even though it continued to produce streaked cloth because he still thought that the streaks were dye streaks and nothing could he done about it. 4' Carroll testified that shortly after company officials had examined loom 355. he asked Supervisor Smith what those officials were looking Ibr and that Smith answered that they were having trouble with streaky cloth. Carroll further testified that he thereupon started working on he loom to see if' he could correct it and thus "to make sure it ... [was] no fault" of his. ' The foregoing findings concerning the conversations between Snell and Carroll are based pincipally on Snell's testimony which I find more accu- rately and reliably reflects what occurred on those occasions. Significantly. Carroll admitted expressing his resentment to Snell that company officials "snooped" around his looms without infirming him what hey were looking 704 SWIFT TEXTILES mentioned that company officials had come to the weave room and looked over the loom but nobody bothered to ask him what was causing the defect. After Snell repeated his conversations with Carroll, at Connor's request, Connor de- clared that he was going to terminate Carroll because Car- roll knew all the time what brought about the streaking even before the reed had been changed, without informing management or doing something about it. Snell did not an- ticipate such a reaction from Connor. Following his conversation with Snell, Connor conferred with Department Manager Boyette and asked for Carroll's quality check cards. 7 Boyette produced them. Finding that the cards disclosed no defects for loom 355, Connor di- rected Boyette to fire Carroll immediately for willfully per- mitting a machine to produce off quality goods with knowl- edge that the reed was the cause. Boyette calmed Connor down and persuaded him that a written warning should be issued. Boyette suggested that such a warning would be appropriate since he had spoken to Carroll the day before about his failure to note on his quality check card a "temple knife" defect for loom 357. Connor reluctantly agreed to Boyette's suggestion. Thereafter, Boyette prepared a written warning 4 and summoned Carroll to his office. Boyette informed Carroll that he was being given the indicated warning because he had admitted to Department Manager Snell that he knew his loom was running with a bad reed in it and had made no attempt to get it corrected. Boyette also pointed out to Carroll that he had failed to note the cloth defect on his quality check card. In addition, Boyette alluded to the fact that he had spoken to Carroll the previous day about the temple knife defect on loom 357 which Carroll had also failed to note on his quality check card. Carroll denied tell- ing Snell that he knew all along that the reed caused the streaking. He also explained that the loom had been operat- ing for some time without any complaints being made about streaking cloth: that the loom had produced accept- able cloth; and that no weaver had flagged the need of repairs to eliminate such defect. 9 Because he disagreed with the contents of the warning, Carroll refused to sign it, as- 4 These are cards fixers are required to fill out daily They contain the numbers of the looms they are assigned to maintain and repair and a list of numbered items of loom defects. Every day the fixer is required to inspect his looms and note alongside a particular loom the defect he finds. Specifically. the notation for streaking is Number 9, "Cloth- Any Defects " This quality check and procedure was initiated as part of Connor's quality improvement program. 48 This warning read as follows: On this date. I talked with the above employee ICarroll] concerning his work performance, on Monday 9-13-76. Jmmie [Carrolll admitted he knew Lxoom 355 was running with a bad reed ut he didn't indicate this on his Daily Quality Check Card On this same d.a I pointed out to Jimmie that he had missed oom 357 on his Quality Check (temple kn;fe not cutting). Jimmie has been tall: to recently aIhout other things that effect his performance. If this type performance continues Jimmie will be dismissed. It is clear that other individuals were smilarly responsible for quality production on loom 355, such as weavers on the three shits, the second and third shift fixers, and the supervisors who patrol the looms. However, none of these individuals apparently caught the cloth streaking ,n loom 355 or re- garded it as a defect. It also appears that the burling inspection) depart- ment, which tags weaving defects but not those due to d e probhlems, also did not find any cloth Irom lm 355 unacceptable betlre the events here in- s olved. serting that he was being given a warning for fixing the loom. ° In addition to the written warning issued to Carroll, Boyette testified he verbally warned the weavers who oper- ated loom 355 on all shifts, and the fixers on the second and third shift for not reporting the streaking, even though he (Boyette) had no information, as he had with respect to Carroll, that the weavers and other fixers were aware that the reed was causing the problem. On Thursday, September 16. as Bovette was walking down the allevs in weave room 2 to check on the quality of cloth being produced on the looms, he came upon cloth made on loom 349 which contained worse streaks than those on the cloth which had been previously produced on loom 355. He thereupon requested Carroll. whose assign- ment included that loom, for his quality check card, which, on examination, did not disclose that there was anything wrong with loom 349. Consequently, Boyette asked Carroll for an explanation but Carroll gave none. However, in an apparent effort to minimize the problem with his loom. Car- roll pointed to two looms of another fixer which he said looked worse than his. Boyette advised Carroll not to worry about the other looms but to worry about his own. Boyette then directed Carroll to prepare the loom for rereeding by another employee. In the meantime, Boyette motioned to Connor, who happened to be in the weave room at the time, to come over to the loom to view the streaks in the cloth. Connor thereupon joined Boyette who advised him that he intended to fire Carroll the next morning should it turn out that the reed was bad and caused the defective cloth. Con- nor expressed agreement with Boyette's decision. After the reed was changed, the loom was run until Fri- day (September 17) morning when the finished cloth was removed and brought down to the inspection table. The cloth was then compared with the one with the streaks. This comparison indicated that the new reed had corrected the streaking. When Carroll was shown both rolls of cloth, he commented that the rereeding had improved the appear- ance of the cloth. At this point. Boyette informed Carroll that he could not tolerate his "kind of work" any more, that he was no longer needed, and that he should get his tools and lease. The weavers on all shifts and the fixers on the second and third shifts in charge of loom 349. who had previously been given erbal warnings, received written warnings for not reporting the streaking condition. At the hearing. Boyette and Connor disavowed that Carroll's union activities entered into their decision to issue any of the warnings to Carroll or to terminate him. Following his termination, Carroll unsuccessfully sought reinstatement from Company President Boland who in- formed him that he would have to stand behind his depart- ment heads responsible for the operation of their depart- ments. After Carroll left. Boland discussed Carroll's visit with Connor and Boyette who, in turn, related the circum- 0 The foregoing findings reflect a comp.silte of the testimony of Boyette and (Carroll which appears to me to indicate what probably occurred at the time of the ssuance of the written warning to Carroll In so doing. I am not convinced by Carroll's rebuttal testimony that the written warning in evi- dence was not the olie he was asked and refused to sign. His other testimtons regarding the discussion between him and Boyette indicates that the written warning received in evidence was the document he was asked to sign Sr The foregoing narration of the Bo)ette-Carroll episode involving loom 349 is based on the credible parts of their testimony. 705 DE('ISIONS OF NATIONAL. IABOR RELATIONS BOARD stances of Carroll's discharge. Because it appeared that Carroll might have been under the mistaken impression that he might be able to return to his job. Supervisor Smith was directed to make a telephone call to Carroll to remove any doubts concerning his discharge. Smith made such a call. Concluding Findings Respecting the Warnings and Discharge All the facts related above, being carefully considered. I find that the General Counsel has not sustained his burden of proving that the March 31 and September II and 14 written warnings issued to Carroll and his subsequent dis- charge on September 17 were motivated by his union activi- ties. Admittedly, Respondent was fully aware of Carroll's active participation in the 1974 and 1976 union election campaigns which Respondent vigorously opposed. How- ever, it is equally clear that during that more than 2-year period and until the events involved herein Carroll's em- ployee status remained unimpaired. Moreover, there is no evidence of the Union's presence at the plant or of any union activities on the part of Carroll during the 5-month period following the Union's defeat at the April 23 election and Carroll's termination which could possibly furnish a discriminatory reason for Respondent's action. When to this is added the fact that Respondent had reason to believe that Carroll was quilty of the conduct with which he was charged, the basis for finding discriminatory motivation is further weakened. Thus, regarding the March 31 written warning, Department Manager Boyette acted on informa- tion that Carroll entered a restricted area in the shop. namely the motor room, where he had no business being and engaged employee Milner in a conversation. While this information might have been erroneous in that Carroll did not actually enter the motor room but two times in the morning put his head in the doorway to ask Milner for a ride home later in the day, it does not warrant the inference that it was Carroll's union support that prompted the warn- ing. Especially is this so in view of the fact that Carroll a few weeks before had been admonished by a supervisor to stay out of the motor room, where he had previously en- gaged Milner in a conversation, unless he had business there. While Carroll had a work order for a part to he ob- tained from the shop, this did not authorize him to speak to Milner who was at work in the motor room. As for the September II episode almost 5-1/2 months later, Department Manager Boyette, after checking the break schedule, issued a written warning to ('arroll for tak- ing a break in the canteen at the wrong time. The General Counsel's assertion that Boyette might have been mistaken because he relied on his own watch in making his decision, is no plausible basis for a finding of unlawful motivation. Similarly, the fact that Boyette believed that the other em- ployees who were in the canteen at the same time were taking a scheduled break and were therefore not disciplined does not demonstrate disparate treatment, as the General Counsel suggests, especially where, as here, the sympathy of those employees for or against a union was not even shown or that union considerations otherwise entered into the issu- ance of the warning to Carroll. CTurning to the warning of September 14, this was issued to Carroll for the indicated reasons that he permitted loom 355 to produce streaky cloth with knowledge that the reed in the loom was causing such defective cloth and that he failed to note the cloth defect on his daily quality check card. It is clear that Fabrication Plant Manager Connor, who made this decision, reasonably acted on Department Manager Snell's credible report of ('arroll's statement to him that the reed had caused the streaking and of Carroll's expressed resentment that the company officials who exam- ined loom 355 did not bother to ask him what caused that problem. Here, too, there is no plausible basis for inferring that it was Carroll's union adherence that was responsible for the warning.' 2 Finally, when Carroll on September 16 permitted another loom to run with a bad reed, which cre- ated the same streaking problem," he was discharged by Boyette the following day after the reed was changed and corrected the situation. This convinced Boyette that it was the defective reed that caused the streaking and that Carroll failed to take appropriate steps to remedy it. I further find nothing in the record to substantiate the General Counsel's contention that the discharge was contrived to get rid of a union adherent. In sum, I conclude that the record contains insufficient evidence to support a finding that the written warnings is- sued to Carroll and his subsequent discharge violated Sec- tion 8(a)(3) and (I) of the Act. Perhaps the ultimate punish- ment was too severe. However, judged by the requirements of the Act, it does not amount to an unfair labor practice. Accordingly, the applicable complaint allegations will be dismissed. 5. Milner Milner has been in Respondent's employ since 1971. At his request, he was transferred in 1975 from the boiler room where he was a boiler tender to the motor room in the shop. In June 1976. again at his request, he was transferred out of the motor room54 to train to perform electrical work which at the time of the hearing he was doing. Milner actively supported the Union in its 1974 and 1976 campaigns. In the last one he distributed union literature at all plant gates about 15 to 2() tintes; solicited employee signatures to union authorization cards: attended the representation hearing and union meetings: served as an observer at the union election: and recorded union messages on the Union's coda-phone. lie was observed handing out leaflets by Com- pany Supervisors Douglas King. Robert Obert. Frank Ar- rington, and David McD[owell. Respondent's knowledge of Milner's union activities in the past two campaigns is con- ceded. $2 I'he General ounsel sates that the w arninllg ti ('arroll was "unconscio- nable" because supersisors and ltiher employees were equall, responsible in permitting the production strelaky cloth Hlhm ever. apart from the fact that "unconscionahle" conduct is not the eqisalent of unlawful discrimination. it was not shown that these individuals were aware 1it the cause of' the streaking. as was Carroll. In ;n\ event, he weavers on all shilis and the second arid third shlfl fixers ass:gned to loom 355 were given verbal warnings as first oflenders. ' Htere. tl. ('Carrll made no norattion oI Ithe delect n his daily quality check card. 54 As presviously discussed, erlplioyee (',ochrian was at that time assigned to the rlotor ronm to replace Nilner 706 SWIFT TEXTIL ES The complaint alleges that because of Milner's union ac- tivities he was given written disciplinary warnings on April 26, July 27. and August 24 for pretextuous reasons. The facts and circumstances surrounding these warnings will be separately considered. The April 26 Warning As noted previously. the 1976 election was held at the plant on Friday, April 23. As a union observer, Milner and other union people arrived at the plant about 4:30 in the morning. The balloting was arranged to take place in a morning and afternoon session so that employees on differ- ent shifts could vote. To enable him to serve as an observer. Milner took the day off but, as required by the Company's absenteeism rule, failed to notify his immediate supervisor, Arrington, or any other supervisor of his contemplated ab- sence on his first shift. Milner admitted awareness of this rule but testified that he did not believe that his situation as election observer required any absence notification. It is clear that about 5 or 5:30 that morning plant engineer King learned that Milner was a designated union observer and therefore would not be at work that day. About 7 a.m., when the first shift was due to begin. King conveyed this information to Arrington, who until then had no notice of Milner's designation as an observer or of his intention to be absent. In the middle of the same day (Friday. April 23) Supervi- sor Obert. in accordance with practice, completed the week- end work schedule and, as customary, Arrington made the assignments and notified the shop employees who were scheduled to work on Saturday." Arrington testified that Milner was one of those scheduled and expected to work on Saturday. Because of Milner's absence from work he was not notified of his Saturday assignment, as he normally would have been in the shop. Arrington testified that. after the election was over and the ballots 'were being counted, he, nevertheless, went to the polling area to inform Milner of his assignment but he was not there. However, Arrington admitted that he made no effort to telephone Milner at home. On the other hand. it is also undisputed that Milner, for his part. made no inquiries of his department whether he was scheduled to work Saturday, although it appears that since the beginning of the year he had worked approxi- mately two-thirds of the Saturdays. Milner did not report for work on Saturday. April 24. As a consequence, Arrington prepared a written warning for this absence. Under the Company's rule. this was appropri- ate since Milner was also absent without notice on the pre- ceding Friday. On MondaN, April 26, after Milner came to work. Arrington summoned him to Obert's office where the written warnilng was read to him for his Frida', absence and his failure to report for work on Saturday. Milner explained that , was not told that he was scheduled to work and presumed that he was not required to come in Saturday because he had not worked for the past few Saturdays. Mil- * II is undisputed that he mere fact the mill or shop is scheduled to work on a particular Saturda?, dws not mean that all shop employees are required to report for work on that daly I is Ihe established practice or Arrington or Obert personall? to notits the shop enlplovees whether thes were selected tir Saturday work. Indeed. the Iollowing F:ridal (April 30). Ohert inlrmed Milner he was inot scheduled to work he next dao. even though the null was scheduled to operale that SaturdaN. ner also referred to the normal practice of being informed on his job bh Arrington on Friday of a Saturday assign- ment. although undeniably Milner was absent from work on Friday. Manifestly. Ohert and Arrington were not per- suaded to cancel the warning, and the interview ended with Milner refusing to sign the warning. At the hearing, Arring- ton disavowed that Milner's services as a union observer or his union activities entered into his decision to issue the written warning. Careftill weighing the above evidence. I am not con- vinced that a case was made out that the written warning wias discriminatorily motivated. At best, it appears that Re- spondent's enforcement of its absenteeism rule was highly technical and perhaps unfair. On the other hand, as Milner was absent from work on Friday when employees were nor- mally informed of their Saturday assignment, it appears that the prudent thing Milner should hase done was to make inquiries at the shop to ascertain whether he was scheduled to work on that Saturday. (oncededly. he did not do so. In these circumstances I do not believe that an interence of discrimination is warranted. The General Counsel. nevertheless, relies on a remark that Supervisor Obert allegedly made to Milner a week or 10 days subsequent to the issuance of the warning. as evi- dence of an unlawful motive underlying the warning in question. At that time, during the Ma 4 6 period. Obert allegedly told Milner, in reply to Milner's expressed wish for a pa, rate increase, that he would ne`.er get one and that he knew why. I am not so sure that such a remark certainly not unequivocal regarding the reason inescap- ablN betra s, under all the facts of this case, an inclination on Respondent's part to issue the earlier disciplinary warn- ing as a pretext for penalizing an employee in reprisal for his union activity. Indeed. the fact that in June Respondent. though aware of his union involvement, granted Milner's request for a transfer to electrical work and training him for it. tends to weaken whatever inference of discriminatory motivation might he drawn from Obert's remark. Perhaps the circumstances of the warning might be suspicious. tlowever. suspicion is not an adeqnate substitute for evi- dence supporting a finding of unlawful discrimination. Accordingly, I conclude that the record does not estab- lish that the April 26 warning violated Section 8(a)(3) and (I) of the Act. The applicable allegations of the complaint will he dismissed. The July 27 Warning This written warning originated from dissension and dis- content among several employees in the boiler room for which Respondent believed that Milner had some responsi- bilit . 'IThis situation occurred during the week of July 19 to July 25. when Milner was working on the first shift in the boiler room on a temporary assignment substituting for a boiler operator. Martin, who was on leave because of a death in his amilN.n It appears that. in the course of his assignment, Milner told boiler operators Nail and Boswell, who then worked on the second and third shifts, respec- ti,cel, that he saw no need for the glass and wood door in t During the week if Milner's assignment his supervisr. Arrington. was on vacation from Salurda. Jl' 17. t, Sundav. Jul, 25 707 DECISIONS OF NATIONAL LABOR RELATIONS BOARD front of the boiler and that he was going to have it re- moved. This door had recently been installed to shield the boiler operators from the heat of the boiler while reading the instruments and performing their duties in an adjoining room. Although Boswell did not take Milner seriously, Nail did, even though Milner obviously lacked the authority to effectuate his intent. A second controversy also arose during Milner's tempo- rary assignment in the boiler room concerning the use of certain company testing equipment available to the boiler room operators and the air-conditioning employees. Appar- ently, a note written by an unidentified individual but pur- porting to come from Nail" was addressed to Massey, an air-conditioning employee, angrily informing him not to use Nail's testing equipment but to obtain his own and inviting him to kiss his posterior. Milner was blamed for being in- volved in the dispute in some undescribed manner, al- though no proof was presented to substantiate this charge. A third controversial matter related to the making of cof- fee in the boiler room and selling it to employees working in other departments in the mill.58 This practice had been in existence for many years. It appears that probably before Milner's temporary assignment he, and perhaps other em- ployees, had complained about the coffee practice for no indicated reason. This resulted in Respondent's restricting the boiler room employees to making coffee only for their own personal consumption. While Milner was on tempo- rary assignment in the boiler room he apparently com- plained that the restriction on sales to noneemployees of the boiler room was not being strictly observed, thus causing the coffee problem to continue to simmer. On or about Friday, July 23, Nail complained to plant engineer King about the disharmony prevailing in the boiler room and submitted his resignation. He attributed this unhappy situation to Milner's threat that Milner and four or five other employees were going to have the recently installed door in the boiler room removed and to Milner's assertion that he was going to be permanently transferred to the boiler room into Nail's job.5" King assured Nail that he had nothing to worry about, that the door would not be taken down, and that peace would be restored in the boiler room. With this assurance, Nail withdrew his resignation. On Tuesday, July 27, Milner was summoned to King's office where, in the presence of Supervisor Obert, King is- sued to Milner the written warning which he had previously prepared.0 Reminding Milner that he had been spoken to the past week when the problem in the boiler room had already started, King admonished Milner that his harrass- 5" Although there is conflicting testimony whether the note contained what purported to be Nail's signature, as the writer, a rumor attributed the note to Nail. Plant engineer King testified that, after speaking to Nail, he concluded that Nail had not written the note. 5s Boiler operator Boswell had for years been engaged in this practice, using t profits for a Christmas and July 4th party. Ultimately, this practice ceased on orders from Respondent because f certain employee opposition to it and the installation of a coffee machine by the Company. However, the boiler room employees were and still are permitted to make coffee for their own personal use. 59 Nail was not produced as a witness. 6 The written warning stated the following: On this date, I talked with the above employee [Milner] concerning conduct on the job. Mr. Milner has been warned in the past for starting false rumors and malicious gossip. It has been reported that he has verbally harassed some of his fellow workers, claiming that he can have ment of fellow employees would no longer be tolerated. King then named Nail as one of the harassed employees who was ready to quit and referred to Nail's complaint respecting Milner's threat to have the door removed from the boiler room. Milner either denied making that threat or stated that he was not serious, adding that he manifestly lacked authority to remove the door. At this point Milner offered his opinion that he was probably being blamed for the problem arising out of the note mentioned above and related his information concerning that dispute between Nail and Massey, the air-conditioning employee, over some testing equipment. King stated that he would investigate the matter and take appropriate action against the person responsible for the note. Milner then remarked that he was being given a warning for something he had not done. Dur- ing the interview Milner also brought up the subject of the coffee which was still being made and sold in the boiler room.6 In response, King stated that the boiler room em- ployees were only supposed to make coffee for their own consumption and not for sale to other employees who had a coffee machine available to them and that he would look into the matter. At the close of the interview, Milner de- clined to sign the written warning, charging that it was is- sued only on account of his union activity. This charge was disputed by King" who, at the hearing, insisted that union considerations did not prompt his decision to issue the warning. The General Counsel argues that the issuance of the July 27 warning was not justified. Assuming that such was the case, it does not automatically follow that the warning was discriminatorily motivated. It is well settled that an em- ployer may discipline employees for any reason-good, bad, or indifferent-provided it is not designed to penalize them for protected union or concerted activities. Viewing the record in light of established principles, I am impelled to find that, whether or nor Respondent was right in its belief that Milner was responsible for some of the employee problems in the boiler room, and, in particular, for the ha- rassment of Nail. the evidence falls short of demonstrating that Milner's union activities prompted the warning. In- deed, as indicated above, not only has Respondent been long aware of Milner's active participation in the Union's 1974 and 1976 campaign, but there is no evidence of any union involvement on his part since the April 23 election. Moreover, only a month before the warning in question Respondent had favored Milner with a transfer to an elec- trical job, which he requested, even though it was aware of his earlier union advocacy. Accordingly, the allegations of the complaint that the July 27 warning violated Section 8(a)(3) and (1) of the Act will be dismissed. certain things done that would adversely affect their working conditions. This has caused ill will and dissension among fellow workers. No more of this type conduct will be tolerated, as it causes continuous disruption among fellow workers. Some employees have threatened to resign. This is absolutely the last warning that Milner will receive. The next instance of this nature being subject to discharge. 61 At the hearing, M.lilner denied making any fuss over the coffee situation. However, as will later be discussed, he again raised the coffee issue during the August 24 warning interview. 2 The findings relating to the warning interview are based on credible parts of the testimony of King, Obert, and Milner. 708 SWIFT TEXTILES August 23 24 Warning On Thursday, August 19, Supervisor Arrington directed Milner to move to the motor storage room three motors which were on a pallet in the hallway, a heavily trafficked area. Milner, however, failed to perform this assignment on Thursday. According to his testimony, a pallet jack or a hyster, which was needed to move the motors,.6 was not then available. He further testified that when he had the opportunity to transport the motors, Lee Dyson, another electrician, who was assigned to help him, was working on another job. Upon learning the next morning, Friday, that Milner had not yet moved the motors, Arrington again instructed him to do so. Milner replied that he would. Later in the morning about 11:30, while Milner and Paul Bottoms, another elec- trician, were on a break in the canteen, Arrington entered and directed them to repair a stacker crane when they fin- ished eating." Accordingly, after their break, Milner and Bottoms proceeded to the stacker crane on which they worked, completing the job approximately 5 to 20 minutes before the end of their shift at 3 p.m. When Milner returned to the shop, Arrington asked him whether he was going to move the motors. After explaining that he had worked on the stacker crane, Milner replied that he would move the motors if a pallet jack were available. 6' As Milner was then able to locate a pallet jack. he, with the assistance of Bot- toms, transported the motors to the storage room. This job apparently took not much longer than 10 or 15 minutes. Because of Milner's delay in complying with Arrington's instructions. Arrington drafted a written warning.6 On the following Monday, August 23, Milner was summoned to Plant Engineer King's office where, in Supervisor Obert's presence,6 King read the warning to Milner for his failure to obey Arrington's orders until Friday afternoon. After 63 Milner testified that there was only one hyster capable of entering the motor storage room but that the hyster was inoperative at this time. He further testified that the pallet jack, which was normally used by the shop, was at this time being used elsewhere. According to the testimony of Super- visors King and Arrington, the Company has between five to seven pallet jacks and at least four or five hysters or forklifts capable of moving the motors to the motor storage room. 4 There is conflicting testimony, which need not be resolved, whether Ar- rington assigned Milner to the stacker crane job, as Milner testified or whether Arrington intended to assign Bottoms to it, as Arrington testified. It is sufficient that both worked on that job, without any objection from Ar- nngton. 6s This account of Arrington's third instruction to Milner to move the motors reflects Milner's testimony. Arrington's version differs in some incon- sequential respects in that, according to Arrington, Milner indicated to him that he did not think that moving the motors was as important as the stacker crane job and that he (Milner) did not mention a pallet jack in their conver- sation. 6This warning stated as follows: On this date, I talked with the above employee Milner] concerning his failure to follow instructions given him by his supervisor. Mr Milner w., instructed on 8-19-76 to move motors to the motor room. He was again instructed to move the motors n 8-20-76 at approximately 10 A.M. He finally moved the motors at 2:40 P.M. after being told the third time. This is the second warning I have had to give Mr. Milner in the last month concerning his conduct or the job. This is the final warning I intend to give Mr. Milner for any of his activities on the job. 6 Arrington was not available for the Monday interview because he worked late in the plant the previous night on a major equipment break- down. Obert, who was present at the Monday interview, did not attend the Tuesday meeting. some discussion. Milner commented that if a warning is issued to him for not obeying Arrington's instructions to move the motors, then Supervisor Arrington should also be given one for not complying with King's order to Arrington to stop the above-discussed coffee practice in the boiler room. At this point, at Milner's request, the warning inter- view was put over to the following day so that Arrington could be present. On Tuesday, August 24. at the resumed interview, King, Arrington, and Milner were present, and Milner's failure to comply with Arrington's instructions was further consid- ered. According to Milner's testimony, he explained to King and Arrington that the reason he did not move the motors sooner than he did was the unavailability of a pallet jack or a hyster and his preoccupation with other jobs in the meantime. Contradicting Milner, King and Arrington testified that the unavailability of a pallet jack or hyster was not mentioned at the interview but that Milner did say that repair of the stacker crane was more important than mov- ing the motors. This conflict in testimony need not be re- solved as either version leads to the same conclusion I make below. In the course of the discussions, Milner was asked to sign the warning which he refused to do. Instead, he asked Ar- rington whether he really thought he deserved the warning. When Arrington answered in the affirmative. Milner de- clared to King that if he deserved a warning for disobeying Arrington's instructions, then Arrington deserved one for disobeying King's orders to Arrington to stop the coffee practice in the boiler room. King thereupon directed Ar- rington that if the practice still persisted he should put a halt to it, except that the boiler room employees would he allowed to make coffee for their own consumption. Here, too, the General Counsel argues that the August 23-24 written warning was unjustified and a pretextuous reason to discipline an employee for his union adherence. As noted with respect to the other written warnings issued to Milner, I find that the record does not establish that the August 23-24 warning was a consequence of Milner's Union activities. Rather, it appears to me that it was Mil- ner's delay in moving the motors-a job which probably took some 10 to 15 minutes-until he received a third order from his supervisor, that prompted the warning in question. Nor am I able to find convincing support in the evidence for the General Counsel's further assertion that this warn- ing was part of a scheme of Respondent to make a disci- plinary record against union activists. Accordingly, the allegations of the complaint relating to the August 23-24 warning will be dismissed. C. 4lleged Interference, Restraint, and Coercion As indicated above, the complaint alleges three instances of preelection conduct" and one instance of postelection " The complaint also alleged another instance of a preelection threat of loss of Saturday wore made to employee Cochran in reprisal for his union activity. However. this allegation s an ntegral part of other unfair labor practice allegations involving Cochran which, as noted in fn. 4 supra. have been settled and severed from these proeedings. Accordingl;. the alleged threat is not before me for determination. 709 IDE ('ISIONS 0t' NAIIONAL LABOR R ATIONS BOARD conduct by Respondent's supervisors claimed to he in viola- tion of Section 8(a)( I) of the Act. They will he separately discussed. 1. Supervisor Milam's alleged threat to employee ('uller ('uller testified that one day he was called to Supervisor Milam's oflice where Milam inftrnmed hili that he (Milam) was aware that ('uller was for the Union and that if ('uller were not such a good worker, "he'd run ... [hisj ass off." According to Culler, these remarks were repeated to him by Milam about 2 days later in the elevator which ('uller was then operating. However. Culler's testimony concerning the dates of these conversations varied between the preelection and postelection period, although his prevailing belief seemed to indicate that the conversations occurred in or about the February before the April 23 election. ('ontra- dicting ('uller's testimony, Milam categorically denied ever having had a conversation with ('uller in which he miade the remarks attributed to hili or that he even was aware of C'uller's participation in the Union's 1976 election cam- paitgn. although he admitted know ing of C'uller's activit during the Union's tirst campaign in 1973. HIe further testi- fied that about 3 or 4 weeks hefore the April 23 election he spoke to individual eniployees. including (ullcr.- advisiing them of' their right to campaign in support ot' or in opposi- tion to, the Union but admonishing them to engage in such activity on their own time and not to disturb or iitertere with plant operations. I find that Culler's testimony is too Cconfusing antd inclCn- sistent in nsarious respects as to impair the reliability ot I is recollection of the renlarks Milanl purportedly maade to him. In these circuiilsttances, it would be plain surnise to find that the renlarks mnade hb Milai conveyed a threat ot discharge in reprisal for ('uller's union acti ist. as alleged n the complaint. 2. Supervisor Milanl's alleged threat to einplo ee Iludson As discussed above, ltudsoin was unharlpily transferled as a loom fixer froIm the first to the third shift. It was n(ot long before tension and difficulties developed between him and his third shift supervisor, Vinicent lIaquitara, who had a low estimate of iludson's ability to fix [)DI.( looms. \bout 3 or 4 weeks before the April 23 electtion, Supervisor Mil;in. under whoi Hudson fotrme rly worked in the first shit, tenmporarils replaced aquitara on the third shif't whlile the latter was on sick leave, At this time, Mil;in, as did othcl supervisors, began to speak with indiviCdual emplo)ecs Cion- cerning their right to campaign ior or igainst the I inion on their own time and the niced to avoid interfering with plant operations. Accordingly, Hudsoin was called into the lffice where Milain explained the purposc of' their ineeting. Be- tore t'.e union discussion began. the subject olIluIdsoln''s ob problems with Laquitara was brought up. Milalm suggested and cautioned luIdson to avoid inviling argnmellts wilh Laquitara and to try to get along with him or hie might hurt or mess himself up and lose his job. Hudson replied that he would not hurt himself and that Milam need not ', orrv. The foregoing reflects my ealuation of' ludson's aind Milam's testimony and I therel'ore find, contitrair to tlhe General ('ounsel's contenltion. that Milani's ciautioiiarl lan- guage was directed to Hudson's working relationship with Laquitara and not to his union activity which was unques- tionably inconsequential. It ollows that the evidence does not establish that Milam threatened Hudson with discharge lor his union support, as alleged in the complaint, and hence I find that Respondent did not violate Section 8(a)( 1) in this respect. 3. Superintendent Herndon's alleged interrogation or coercion oft' employee Flakes lEmployee [-lakes testified that about 2 weeks before the election, while he was in the canteen after passing out union leaflets that da? in ront of the plant, Herndon made "a smart remark" to him whether he "hadn't . . . got tired of that union trash yet." Ilakes did not respond. Superinten- dent I erndon. who admittedly had had many union discus- sions with lakes over a 4-year period, denied that he had ever made the quoted statement to Flakes in any of their Conlversa tions. This conflict in testimony need not be resolved because. whether or not the quoted remark is viewed as interrogation as alleged in the complaint, it manifestl only reveals Hern- don's low opinion of the nion lacking any coercive impli- cations. Accordingl) I find that Section 8(a)( ) was not violated in this respect. 4. SupervisoI Obert's alleged threat to employee Milner of loss of any luture increase in his pay rate lmnploee Milner testified that about May 4 5. or 6, fol- lowiing the April 23 election. Supervisor Ohert and he en- gaiged in a conversation in the motor room concerning a possible classification change that electrician Kurtz might receive which could result in a pas rate higher than that gien to the other electricians. Milner further testified that when he expressed a wish to get a little of that pay rate Which '\ ould ait least bring his rate up to top pay. Obert made the comnillent that Milner would "never get another raise at Swift and Ithat NMlner knew . . . why." According to Milner. this esoked his response, "because of the union thing," to w hich ()hert nmade no reply, ending the conversa- tilon oi this note. Under cross-exatmination Milner con- ceded thlit I-I/ 2 months later he participated in a general plartwide wage increase granted to all employees which howe,ser did not bring Milner up to top rate. ()bert testitied that he had never had a conversation with Milner in which Kurtz' pa rate was the subject of discus- sion or in which he told Milner that he would never get a raice atid that Milner knew the reason. I o show that such a cotnversa tion WIas highs improbable, ()bert testified that Kurtz had heeni at top rate since his employment 5-1/2 \ears ago and that lie had never received a pay raise other than the general plantwide increase givsen to all employees. Although it is possible that Kurtz had never been up- graided in classification and regular paL rate, it does not niecessarily pelude a finding that the ahove-nientioned coxres;ation had acItualls occuirred and I find that it had. Iloes\ er. in ie, ot the fact that Milner did subsequently partcilpalte ill a gelleral wage increase antid ill iew of the lurthiCr tlct thit. as indlicatd earlier in this decision, he was 710 SWIFT TEXTII.ES granted his request for a transfer to an electrical job which he sought in preference to the one he was then performing in the motor room, notwithstanding his union involvement, I am not entirely convinced that Obert's failure to respond to Milner's surmise that "the union thing" would probahli keep him from getting a higher rate necessarilN implies Obert's agreement with Milner as to amount to a threat of reprisal for Milner's union activity violative of Section 8(a)( ) of the Act. In any event, not having found that Re- spondent engaged in other unfair labor practices. I find that the circumstances do not warrant the issuance of an order limited to Obert's statement in question. Upon the basis of the foregoing findings of fact and upon the entire record in the case. I make the fiolloing: ('(N( I S()NS ()1- .A , I. Ihe Respondent is an emploNer engagced in commerce swithin the meaning of Section 2(6) and 7) of the \ct. 2. Ihe Respondent has not engaged in the unfair labol practices alleged in the consolidated and indil idual comn plaints herein. [Recommended (O)rder for dismissal oMnlitted from pubhi- cation.] 711