United Cloth Co., Inc.

UNITED CLOTH CO. United Cloth Company, Inc. and Amalgamated Clothing and Textile Workers Union, AFL- CIO. Case 11-CA-11680 18 February 1986 DECISION AND ORDER By MEMBERS JOHANSEN, BABSON, AND STEPHENS On 28 October 1985 Administrative Law Judge Hutton S. Brandon issued the attached decision. The General Counsel filed exceptions and a sup- porting brief, and the Respondent filed cross-excep- tions. and a supporting brief as well as an answering brief to the General Counsel's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, United Cloth Company, Inc., Spartanburg, South Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the Order. 1 In sec HI,C,l,b of his decision the judge, in finding that the warning issued to employee Allen was not unlawful, inadvertently stated that the Respondent's lack of animus toward the employees who participated in the 18 February 1985 meeting is shown by the fact that "more" of the other employees were disciplined. It is clear, however, from the context of the judge's statement and from the record that the judge intended to state that none of the other employees were disciplined. 2 The General Counsel has requested that the Order include a visita- tonal clause authorizing the Board, for compliance purposes, to obtain discovery from the Respondent under the Federal Rules of Civil Proce- dure under the supervision of the United States court of appeals enforc- ing this Order Under the circumstances of this case, we find it unneces- sary to include such a clause Accordingly, we deny the General Coun- sel's request Paris Favors Jr., Esq., for the General Counsel. Thomas L. Stephenson, Esq. (Leatherwood, Walker, Todd, & Mann), of Greenville, South Carolina, for the Re- spondent. DECISION STATEMENT OF THE CASE HUTTON S. BRANDON, Administrative Law Judge. This case was tried at Spartanburg, South Carolina, on 29 August 1985.1 The charge was filed by Amalgamated 1 All dates are in 1985 unless otherwise stated 583 Clothing and Textile Workers Union, AFL-CIO (the Union), on 17 May and amended on 5 June. The com- plaint issued on 28 June alleging that United Cloth Com- pany, Inc. (Respondent or the Company), violated Sec- tion 8(a)(3) and (1) of the National Labor Relatons Act in a number of ways. The issues regarding the alleged 8(a)(1) violations of the Act are whether Respondent (a) interrogated employees concerning their union activities; (b) promised unspecified benefits to employees to dis- courage their union activities; (c) threatened employees with loss of their jobs, plant closure, and unspecified re- prisals because of their union activities; and (d) solicited grievances from its employees in an effort to discourage their union activities. An underlying issue affecting cer- tain of the 8(a)(1) allegations is the agency status of Hilda Sheftel, daughter of the owner of Respondent. The issue with respect to the 8(a)(3) allegation is whether Re- spondent issued written warnings to its employee Calvin Allen and subsequently suspended and discharged him because of his activity on behalf of the Union. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT I. JURISDICTION Respondent is a South Carolina corporation with a plant located in Spartanburg, South Carolina, where it is engaged in the business of recycling textile wastes. During the 12-month period preceding issuance of the complaint, Respondent received goods and raw materials valued in excess of $50,000 directly from points outside the State of South Carolina. During the same period Re- spondent shipped products valued in excess of $50,000 directly to points located outside the State of South Carolina. The complaint alleges, Respondent's answer admits, and I find, that Respondent is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION The complaint further alleges, Respondent also admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background On Friday, 15 February, Respondent conducted a search of its employees in an attempt to recover certain property believed to have been stolen. Distribution of in- dividual employee paychecks was also delayed until the employees had been searched. As a result of this action, which the employees perceived to be unjustified, a sub- stantial number of Respondent's approximately 90 em- ployees refused to start work the next workday, Monday, 18 February. Instead, they gathered in Re- spondent's plant "canteen" and sought a meeting with the plant manager, Bruce Sheftel, in an effort to obtain 278 NLRB No. 88 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assurances against a recurrence of the events of the pre- ceding Friday. While Sheftel met with the employees, he was unable to placate their concerns. Consequently, many employees left the plant and did not return until the next day. In the meantime dissatisfaction with Shef- tel's remarks prompted a group of at least four employ- ees including Patricia Caip and Calvin Allen, the alleged discriminatee herein, to meet with a local attorney on 18 February. The attorney suggested a meeting with the Union. A meeting between the employees and a representative of the Union was arranged by the attorney and was held on either 23 or 25 February. At the meeting union orga- nization was discussed and union-authorization cards were distributed to the employees attending for further distribution. An organizing committee was established with Allen, a member. It is undisputed that subsequently sufficient authorization cards were executed by employ- ees to enable the Union to file a representation petition with the Board on 6 March, Case 11-RC-5284. An elec- tion was held on 2 May, and the Union was selected as the employee representative. Certification of the Union as collective-bargaining representative followed on 10 May. According to the General Counsel, the unfair labor practice alleged in this case took place between 18 Feb- ruary and the Union's certification. B. Allegations of Independent 8(a)(1) Violations 1. The March conversation between Allen and Tinsley a. The evidence Calvin Allen, testifying as a General Counsel witness, related that he had a conversation with Shelia Tinsley, sorting floor supervisor, in the plant canteen on 20 March. According to Allen, the conversation was initiat- ed by Tinsley as Allen was about to return to his work area at the conclusion of his break. Tinsley said she wanted to talk to Allen about the Union. When Allen protested that he had to get permission from his supervi- sor, Bill Conner, if he was going to sit and talk with Tinsley beyond his break period, Tinsley replied she would square everything with Conner. Tinsley then, still according to Allen, asked him if he was in favor of the Union. Allen replied that he was, and Tinsley proceeded to relate to him her unfavorable past union experiences. Allen, in response, complained about Respondent's em- ployee treatment, low pay, and insufficient benefits, and he suggested something had to be done. Tinsley re- marked that Allen could talk to the employees and tell them to come to her and she could take the matters to Plant Manager Sheftel and that "maybe" she could "do something that way." Allen responded by telling Tinsley he would not persuade other employees to go against the Union. Tinsley replied, in apparent reference to Sheftel, that she would not go along with the Union and would fight it all the way. Allen testified that employee Horace Frady came into the middle of the conversation with Tinsley. However, Frady was not called to testify. Ac- cording to Allen, employee Patricia Caip heard the last portion of the conversation, and while Caip testified for the General Counsel, she related no information about the Allen-Tinsley conversation. Tinsley, called by Respondent, admitted having the conversation with Allen about the Union in the canteen, but placed it before 6 March. Further, she testified that it was Allen who initiated the conversation, and that it was he who asked her how she felt about a union, if she had ever been involved in a union, and why she did not want a union in the Company. She told Allen that she could represent her employees better than a union could, that she knew what the problems were, and that they were working to correct the problems. She admittedly told Allen that he ought to come to her instead of the Union, and that she would "represent" him to Sheftel. However, she denied saying that she would take any "problems" to Sheftel and said she only told Allen to give her time to work out "these problems" to see what she could do. She specifically denies asking Allen how he felt about the Union. Although she testified that she could not tell from their conversation whether Allen was a union sup- porter, she conceded that Allen told her, the employees, as well as Tinsley needed a union. b. Contentions and conclusions The General Counsel relies on Allen's above testimony and certain other statements of Tinsley during cross-ex- amination to establish complaint allegations that Re- spondent through Tinsley; (1) unlawfully interrogated employees concerning union activity; (2) promised un- specified benefits to employees to discourage union activ- ity; and (3) threatened employees with unspecified repris- als because of their union activities.2 Initially, it must be determined which of the two wit- nesses to the conversation is to be credited. Allen's testi- mony about the conversation impressed me as credible. He appeared to have a slightly better recall than Tinsley and his testimony was more specific and detailed. Fur- thermore, his version was slightly more plausible. Thus, given Allen's concern about returning to his job from the break, it is unlikely that he would intiate a conversation with Tinsley about the Union as he was about to return to work. And it is less likely that Tinsley would have volunteered to "square" Allen's late return to work with his supervisor unless she was pressing for the conversa- tion. Further, even from Tinsley's version, it is clear that she sought to persuade Allen to delay organization until she had an opportunity to work out some employeel "problems." This effort to persuade reflects a purpose for the conversation which is consistent with Allen's tes- timony and Tinsley's initiation of the conversation rather than Allen. Finally, Tinsley failed to deny certain of the comments attributed to her by Allen. Under these cir- cumstances, I find Allen's version of the conversation with Tinsley, as well as his version of the date it oc- curred, more accurate, reliable, and credible than Tins- ley's version. 2 The General Counsel's brief recognized the absence of evidence to support an additional complaint allegation that Tinsley unlawfully threat- ened employees with loss of their jobs and therefore moved to delete the allegation That motion is granted UNITED CLOTH CO The General Counsel contends, and the complaint al- leges, that Tinsley's question to Allen whether he was in favor of the Union was unlawful and coercive interroga- tion. I have found that Tinsley asked the question attrib- uted to her by Allen, but that does not decide the legali- ty of the question. A question such as the one propound- ed to Allen may be considered unlawful if Allen had not previously openly revealed his union sympathies to man- agement and if the question was accompanied by threats or promises or was otherwise conducted under circum- stances tending to give the questioning a coercive effect. Rossmore House, 269 NLRB 1176 (1984). Here, there is no showing that Allen had previously revealed his union support to management. Moreover, Tinsley's questioning of Allen was only the preface to other coercive remarks designed to undermine his union support, as set out below. Accordingly, under these circumstances, and be= cause Allen was under tension in any event as a result of being delayed in returning to his job due to the conver- sation, I find the interrogation was coercive and violative of Section 8(a)(1) of the Act. It is undisputed that Tinsley asked Allen to have em- ployees 'come to her regarding "problems" and she would see what she could do. The General Counsel argues, as the complaint alleges, that these remarks of Tinsley constituted a promise of unspecified benefits. I find no promise of unspecified benefits in Tinsley's remark. However, I conclude that they were neverthe- less coercive as a solicitation of grievances to discourage employee union activity. The illegality of such solicita- tion flows from the implicit promise that steps would be taken to correct the grievances solicited. Ace Hardware Corp., 271 NLRB 1174 (1984); tiarco Inc., 216 NLRB I; 2 (1974). Tinsley's promise here was slightly more than implicit. Tinsley admitted on cross-examination that she told Allen to give her time to work out the problems and see what she could do. This clearly reflects her intent to remedy the problems which were the driving force for the union organization. Although there was no allegation that Tinsley unlaw- fully solicited grievances, the content of Allen's conver- sation with Tinsley was litigated. The Board may find and remedy a violation even in the absence of a specific allegation so long as the issues are closely connected to the subject matter of the complaint and have been fully litigated. See Crown Zellerbach Corp., 225 NLRB 911, 912 (1976); Rochester' Cadet Cleaners, 205 NLRB 773 (1973). Accordingly, having found that Tinsley's solicita- tion of grievances was coercive and notwithstanding the absence of a specific complaint allegation on the point, I find that Respondent violated Section 8(a)(1) in Tinsley's solicitation. The General Counsel further argues that Tinsley made a threat of unspecified reprisals to Allen in her conversa- tion with him. This argument appears to be based on re- sponses of Tinsley to questions of the General Counsel during cross-examination. The General Counsel asked Tinsley if she told Allen that Sheftel would make it hard on employees if they organized a union. Tinsley denied that she made that remark but she admitted that she told Allen "that it would make it difficult for all of us." When asked how getting the Union in was going to 585 make it more difficult, Tinsley explained that she simply told Allen that everyone in the plant was under turmoil, that friends were against friends, and she felt like they all needed to work together to solve their own problems. She further explained that this was making it hard on ev- erybody because people were neglecting their jobs and some were going out of their work areas. The General Counsel apparently contends that Tinsley's remarks were tantamount to telling Allen that if the Union came in Re- spondent would be "hard on the employees." I find Tins- ley's remarks too vague and ambiguous to constitute a threat of unspecified reprisals. Rather, Tinsley's remarks appeared to be directed toward an existing condition re- sulting from the union campaign rather than the threat of imposition of more difficult conditions if the employees selected the Union. Accordingly, I find no violation of Section 8(a)(1) based on a threat of unspecified reprisals was established. 2. The remarks of Hilda Sheftel to Margaret Tibbs (a) The evidence Former employee Margaret Tibbs testified that she had a conversation in the plant on 29 March with Hilda Sheftel, sister of the Plant Manager Sheftel and daughter of Respondent's owner, Milton Sheftel. According to Tibbs, Hilda Sheftel asked Tibbs at her work station how Tibbs felt about the Union and if she thought the em- ployees needed a union. Tibbs responded affirmatively and added that she had heard "you all" talk against the Union but had not heard them, say anything about what the Company was going to do for the employees. Hilda Sheftel responded that all employees wanted was "gimme, gimme, gimme, want, want, want," and added that her father was not rich. However, Hilda Sheftel went on to ask Tibbs what the employees wanted. Tibbs replied that it would be nice to have a retirement plan, and a stock and savings account. Sheftel asked if Tibbs could not get her own savings account to which Tibbs complained that she did not have time because the banks closed before she got off from work. Hilda Sheftel re- sponded that she would talk to her brother, the plant manager, about it. Maddie Cohen, an employee of Responent who worked near Tibbs, testified she overheard the conversa- tion between Tibbs and Hilda Sheftel, and she generally corroborated Tibbs' testimony. She added, however, that Tibbs also complained to Hilda Sheftel about heat in the plant, and Hilda had replied that she would talk to her brother about it and get back with them. Hilda Sheftel, testifying for Respondent, related that she was employed by a separate but related corporation located in Allentown, Pennsylvania, and had come to Respondent's plant to assist in improving the quality of production. She contended she had no authority over Respondent's employees and could not discipline them. Further, she said she was told to work through the su- pervisors on any problems which arose. In the approxi- mately 4-week period that she was at Respondent's plant, she became friendly with Respondent's employees. She recalled that she had, talked to Tibbs, and admitted she 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD may have discussed the Union with Tibbs, but speculated that Tibbs must have initiated the conversation. She denied that she asked Tibbs how Tibbs felt about the Union, and explained she had been instructed that this was something she could not do. She recalled that Tibbs did mention a savings plan, and she had responded that if Tibbs thought that was a good idea to put it in the "sug- gestion box" that Respondent had established. The record does not disclose whether Hilda Sheftel was on Respondent's payroll during the time she worked in the plant. Bruce Sheftel, however, described his sister as just a "regular employee," who was not an officer or stockholder of Respondent. (b) Contentions and conclusions The complaint, as amended, alleged, and the General Counsel now argues, that Hilda Sheftel was an agent of Respondent within the meaning of Section 2(13) of the Act. It was further alleged, and is now argued by the General Counsel, that Respondent, through Hilda Shef- tel, unlawfully interrogated Tibbs and solicited griev- ances from her in order to discourage employee union activities. Respondent argues , that no agency was estab- lished and that even if it was, Hilda Sheftel did not engage in unlawful conduct. The testimony of Tibbs impressed me as straightfor- ward, reasonable, and truthful . Further, it was corrobo- rated by Cohen, who impressed me as honest. Cohen's credibility was enhanced by her status as present em- ployee of Respondent testifying adverse to her employer. See Georgia Rug Mill, 131 NLRB 1304, 1305 fn. 2 (1961). Hilda Sheftel, on the other hand, was a tentative witness with vague and uncertain recall . Accordingly, I credit Tibbs and Cohen where their testimony contradicts that of Hilda Sheftel. Having found that Hilda Sheftel made the remarks at- tributed to her by Tibbs and Cohen, it must be deter- mined whether such remarks are attributable to Respond- ent. It is unclear whether Hilda Sheftel was on Respond- ent's payroll . Even if she was, she does not meet the def- inition of "employee" set forth in Section 2(3) of the Act which excludes from that definition individuals employed by their parents. But more than Hilda Sheftel's lack of employee status and her familial relationship is necessary to establish her agency status here. See Eastern Beef & Provision Co., 208 NLRB 756 (1974). Here, in addition to the close familial relationship, Respondent put Hilda Sheftel in a position, albeit temporary, where she was re- sponsible for the quality of the employees' production. While she was directed to work through the supervisor, she clearly directed and trained employees on quality concerns, and in so doing prodded and exhorted employ- ees to achieve quality production. To this end Hilda Sheftel admitted that in collaboration with Supervisor Tinsley she called a "meeting of employees in January or February at which time she spoke about quality and told employees `that she "should" fire all of them because of bad quality. There was no evidence that Tinsley, who was present at the meeting, disavowed Sheftel's remarks or explained that Sheftel had no authority to effectuate discharges . There was a clear and unrefuted implication left in the minds of employees that Hilda Sheftel had the power to speak for management. Under these circum- stances and because of the familial relationship and also because she was placed in a position by Respondent where she could translate to employees management policies, it was reasonable for employees to perceive that Hilda Sheftel was speaking and acting for management. See Whiting Corp., 188 NLRB 500 (1971). Accordingly, I conclude that Hilda Sheftel was an agent for Respondent and that her conduct and remarks may be imputed to Respondent. On the credited testimony, Hilda Sheftel interrogated Tibbs as to her feelings about the Union . To determine whether the interrogation was unlawful, the circum- stances must be examined. See Rossmore House, supra. Tibbs admitted that she was an open and active union supporter. She had passed out union leaflets in front of the plant. She admitted that her union support was no secret. Further, she freely acknowledged to Hilda Sheftel her union support. Sheftel issued no threats to Tibbs re- garding her union activity . Under these circumstances, and particularly in view of Tibbs' open union support, I find that Sheftel's questioning of Tibbs was not coercive and that it therefore did not violate Section 8(a)(1) of the Act. It is undisputed that Sheftel did ask Tibbs what the employees wanted and Tibbs responded by naming some items. While Sheftel did not expressly state that Re- spondent would give the employees the items requested, she did say that she would talk to her brother about these matters. There is no evidence that Sheftel did in fact talk to the plant manager or that she subsequently discussed the matter with Tibbs or Cohen. The Board stated in Ace Hardware Corp., 271 NLRB 1174: The Board long held that the essence of the vio- lation in solicitation of grievances is not the solicita- tion itself but the inference that the employer will redress problems. Crucial to a conclusion of implied redress is a finding that the employer interfered with, restrained, and/or coerced employees in their union activities, which is manifested by such factors as change in past practice, announcement of new policy, and timing and context of such change. [Footnote omitted.] The Board went on to hold in Ace Hardware that in that case the timing and context of Respondent's announce- ment of a new practice of instituting a continental break- fast or informal meeting to discuss employee problems constituted an implied redress. In the instant case, Sheftel's questions about what the employees wanted took place not only in the context of a union campaign but it followed a question of Tibbs about what the Company was going to do for the em- ployees. Under these circumstances and because Sheftel ,promised to talk to her brother, the plant manager, about the desired items enumerated by Tibbs, a promise of re- dress of the grievances solicited may reasonably be in- ferred particularly in the absence of any disclaimer that any action would be taken on those matters mentioned by Tibbs. Accordingly, I find that Hilda Sheftel's ques- tions about what the employees wanted and her promise UNITED CLOTH CO. 587 to talk to her brother about the items mentioned consti- tuted interference with Section 7 rights in violation of Section 8(a)(1) of the Act as alleged. 3. The alleged threats of Harry Moss (a) The evidence The complaint alleged that Respondent through Harry Moss, bailing press overseer and an admitted supervisor within the meaning of the Act, violated Section 8(a)(1) of the Act on 2 May by threatening employees with a loss of their jobs because of their union activity and with plant closure if employees selected the Union to repre- sent them. To support the allegation, the General Coun- sel relies on the testimony of employee John Henry Jones and former employee Garvin Means. Jones testi- fied that on 2 May, the day of the union election, as he was going through the plant sorting room near the bail- ing presses, Moss told him that "all those damn fools going down to vote going to be looking for a job." On cross-examination Jones equivocated somewhat by re- sponding affirmatively to a question of whether Moss had limited his statement to those who voted for the Union. However, he subsequently reaffirmed his initial testimony that Moss' statement referred to "all" those who voted. According to Jones, no one else was around to hear Moss' remarks. Means testified that on 2 May he saw Moss in the men's restroom in the plant where Moss told him, "You know if you vote the Union in Mr. Milton [Sheftel, owner of Respondent] told me he was going to close the plant down." Means replied that he had heard of another plant of another employer closing, and then Means left the restroom. Moss was equivocal about being in the restroom with Means on the day of the election. However, he denied making the remark attributed to him'by Means. He fur- ther denied even talking to Means about the Union that day. He likewise denied that he made the remark attrib- uted to him by Jones although he admitted he may have talked to Jones on the day of the election. In explanation of why he would not have made the statement 'claimed by Jones, Moss said he was a "part of management and I would not have said to down the Union at the time." Jones and Means impressed me as more credible than Moss. While Means was discharged by Respondent on 24 May and may have harbored some bias against Respond- ent as a result, the remark he attributed to Moss was in keeping with that attributed to Moss by Jones who par- ticularly impressed me as honest and sincere. Jones' testi- mony was much more persuasive than Moss' empty deni- als. Accordingly, I find Moss made the remarks attrib- uted to him by Jones and Means. (b) Contentions and conclusions The General Counsel argues that Moss' remarks to Jones and Means were unlawfully coercive. Respond- ent's defense is based essentially on Moss' testimony that he did not make the remarks attributed to him. That de- fense has already been rejected. Assuming that Moss did not specifically limit his remark to Jones to those employees voting for the Union, the remark nevertheless carried that clear impli- cation. Given Respondent's opposition to the Union, a lis- tening employee would not likely interpret Moss' remark as a threat to discharge those who exercise their right to vote against union representation. Respondent, through Milton Sheftel, had made at least one speech to employ- ees during the union campaign soliciting employee sup- port. Therefore the more reasonable interpretation in the absence of explanation by Moss would be that union se- lection would result in a loss of jobs for the voters. Ac- cordingly, I ford that that was the message Moss intend- ed to convey, and that fording establishes the 8(a)(1) vio- lation urged by the General Counsel. On the other hand, even if there was no expression or implication in Moss' statement that job loss would be limited to those voting for the Union, his statement would nevertheless be coer- cive and violative of the Act because of its natural tend- ency to discourage prospective voters including Jones from participating, in the election. Accordingly, I fmd Moss' statement to Jones violated the Act as alleged. Moss' statement to Means clearly conveyed the mes- sage that the plant would be closed if the Union was voted in. No citation of authority is necessary to estab- lish the unlawful nature of this threat. I find it violated Section 8(a)(1) as alleged. C. The Alleged Discrimination Against Allen 1. The 18 February warning (a) The evidence Calvin Allen had been employed by Respondent ini- tially in May 1984. He worked as a bale press operator until January when he was demoted and transferred to dock work as a result of poor quality work. On the dock, where he was responsible for unloading trucks and distributing such loads to their proper locations within the plant, Allen worked under the supervision of R. T. Coleman, a dock supervisor,, and Leonard Richardson, crew chief or leadman. Both Coleman and Richardson were under the supervision of Billy C. Conner, the ware- house shipping and receiving supervisor. On 18 February, the day of the work stoppage and employee meeting in the canteen, Allen was 23 minutes late for work. Respondent has a rule contained in its handbook which prohibits employees clocking in more than 7 minutes after their scheduled work start up time without the permission of the plant supervisor.3 Allen testified that when he came to work he noticed a large group of employees in the canteen after which he ob- served Kenneth James, supervisor over the production area, and Supervisor Tinsley at the timeclock. According to Allen, he asked James and Tinsley if he could punch in. They replied that he could, and Allen did so. He then proceeded to talk to some employees in the baling press area while on his way to'the dock area. He explained he was trying to find out what was going on in the employ- 3 This rule appears initially to have been enforced by limitations on the timeclock which would not accept and stamp a'timecard later than 7 minutes after the hour. That clock was subsequently replaced by a newer clock that had no such limitations on 18 February. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ee meeting. He then resumed his walk back to the dock and saw Conner. Conner asked him why he was late. Allen explained and Conner wrote it down on a piece of paper. Then Conner asked him if he was going to work or was he going home. Allen expressed uncertainty and said he wanted to find out what was going on. Conner, still according to Allen, directed him to punch out. Allen refused. Conner said he would punch Allen out and pro- ceeded to do so although Allen complained that Conner had no authority to do so. Thereafter, Allen proceeded to join employees in the canteen and took an active part in the meeting personally voicing a number of employee complaints to Bruce Sheftel during the meeting. Subsequently, Allen was apprised of a "record of con- versation" signed by Conner regarding Allen's late re- porting for work on 18 February and his being found "disturbing other employees with conversation." The record of conversation, the first step in what is an essen- tially three-step progressive disciplinary system culminat- ing in termination, stated the following under "supervi- sor's remarks": Employee did not report to work station, was later found in baling area disturbing other employees with conversation. He was later found in inventory area and asked to leave plant if he did not plan to work. He was escorted to time clock, refused to punch out and was clocked out by me at 8:55 a.m. Employee then went into cafeteria where meeting was being held by Mr. Sheftel. The record of conversation indicated under an em- ployees' explanation section that Allen had explained the reason for his lateness and then claimed his clocking in late was with the permission of the Sorting Supervisor Tinsley. The "record of conversation" ended with a verbal warning issued to Allen. The General Counsel argues that the warning was issued to Allen because of his participation in the em- ployee concerted protected activity in the canteen. The complaint alleges that the warning was a written rather than a verbal one. Respondent's evidence of the 18 February warning was expressed primarily through the testimony of Conner. Such testimony was consistent with his remarks in the "record of conversation." Also, Allen's timecard for 18 February was received in evidence showing that Allen checked in at 8:23 a.m. and that Conner "clocked" him out 32 minutes later by writing in the time in the "out" column of the card. Kenneth James, who was no longer employed by Re- spondent after February, testified for Respondent deny- ing that he gave Allen permission to clock in late on 18 February. He further testified he could not even recall seeing Allen that date. Tinsley also denied seeing Allen punch in on 18 February and denied that she talked to him on that day. denies that the warning was based in any way upon Allen's concerted activity. As the Board stated in Wright Line, 251 NLRB 1083, 1089 (1980): [O]ur task in resolving cases alleging violations which turn on motivation is to determine whether a causal relationship existed between employees en- gaging in union or other protected activities and ac- tions on the part of their employer which detrimen- tally affect such employees' employment. The burden of establishing that causal relationship is on the General Counsel who must provide a prima facie showing sufficient evidence to support the inference that protected conduct was a "motivating factor" in the em- ployer's action against the employee. Once this is done, the burden shifts to the employer to demonstrate that the same action against the employee would have been taken without regard to the employee's union or protected ac- tivity. Ibid. Without regard to the different versions of the wit- nesses on the warning of Allen, I am persuaded the Gen- eral Counsel has failed to establish a causal relationship between the warning and Allen's protected or union ac- tivity. All that has been established is that Allen got a warning and that he engaged in protected conduct, i.e., the employee meeting with Bruce Sheftel. While the warning was issued after the protected conduct, and al- though the warning refers to Allen's going to the em- ployee meeting, there is absolutely no showing that Re- spondent could have had the warning typed up and issued to Allen prior to his involvement in protected ac- tivity. After Allen refused to clock out, he proceeded to the canteen and apparently left the plant after the meet- ing with other employees. Although the record does not show exactly when Allen was told of the warning, there is no showing that Respondent engaged in such an undue delay in advising Allen of the warning as to suggest some ulterior motivation. In addition, Allen was not the only employee to engage in protected activity. Many other employees attended the meeting in the canteen and were there long before Allen. Although Allen may have spoken out at the meeting, the evidence does not reflect that he was the spokesman of the employees at the meet- ing or that he spoke any more than any other employee. There is no basis for finding that Allen so distinguished himself at the meeting as to make him the most likely target for employer retaliation. Respondent's 'lack of animus toward those employees participating in the meeting is shown by the fact that more of the other em- ployees were disciplined. Lastly, on the undisputed evidence and Allen's own testimony, a clear basis for discipline existed. He was ad- mittedly tardy. He admittedly did not start work, and he refused to punch out when told to do so by Conner.4 (b) Contentions and conclusions Respondent contends in essence that the verbal warn- ing of Allen on 18 February was based on his refusal to work while at the same time refusing to clock out. It 4 It should here be noted that Allen did not dispute the time "out" entered on his timecard by Conner. Accepting that entry as accurate it appears that Allen was "on the clock" 32 minutes without working so he must have had more than a brief discussion with other employees on his way back to the dock area where he encountered Conner. UNITED CLOTH CO. 589 Considering the foregoing, I find no evidence suffi- cient to establish a causal link between Allen 's protected activity and his 18 February warning . I find, rather, that no prima facie case was established by the General Counsel and no 8(a)(1) violation in the warning was proven. The mere recitation in the warning of what Allen did after he refused to "clock out" does not in itself establish that the warning was issued because Allen went into the employee meeting. 2. The warning and suspension of Allen on 6 March (a) The evidence It is undisputed that at the end of the work day on 6 March, Allen was called into Conner's office where, in the presence of Supervisor Tinsley , he was issued a warning and told that he was suspended for 2 days. The warning captioned "Written Notice-Second Warning," and signed by Conner with Tinsley signing as a witness, stated: At 13:06 p.m. your [sic] were observed in the Bay 1 Warehouse talking with another employee. By doing this, you voluntarily left your assigned work station without permission of your supervisor. You were previously observed in this area 2/19/85 by Mrs. Shelia Tinsley who asked your reason for being there-also without permission. On 2/20/85, you were again observed by Mrs. Shelia Tinsley in the cafeteria-also without permission. On two oc- casions on the morning of 2/18/85, it was necessary for me to ask you to go to your work station. Allen testified that he told Conner that the charges were untrue. He further testified, however, that Conner did not give him a chance to say anything about the charges, although Allen attempted to give an explana- tion. Rather, Conner just asked him to sign the warning and Allen apparently refused . Allen testified he could not recall the incidents referred to as occurring on 19 or 20 February. Apparently responding to the incident which prompted the warning on 6 March, Allen testified that his job required him to take some materials from the dock to the scales to be weighed and then to the Bay 1 area. When he got there he had to check with employee Jesse Orson on where to put the material since he had to make room for it. The General Counsel contends and the complaint al- leges that the 6 March warning and suspension of Allen was based on his union and protected activity. In making this argument, the General Counsel relies on Tinsley's admission that she was aware of the union activity almost from the time it started, and her further testimony that her conversation with Allen about the Union noted above took place before Allen's 6 March warning. As al- ready noted, however, Allen's credited testimony put that conversation with Tinsley on '20 March substantially after the 6 March warning. Respondent's basis for the warning and suspension was related through Conner and Tinsley. Thus, Conner testi- fied that the 6 March warning resulted from Tinsley tell- ing that Conner she saw Allen talking to employees in the Bay 1 area where he had neither reason nor permis- sion to be. Conner further explained that the crew that Allen worked with normally unloaded denim and it was extremely unusual to store denim since it normally went straight to the bailing press area . Conner could not recall Allen offering any explanation for his presence in the Bay 1 area. Tinsley testified that on 6 March she saw Allen in the Bay 1 area talking to employee Bernice Waddell . Noting that he had no rack or hand jack with him and that he was not carrying a box which he would have been doing if he had business in that location, Tinsley told Allen he was out of his work area and asked him to leave. Allen claimed that he had a message to deliver . Tinsley subse- quently reported the matter to Conner telling him at that time also about the other incidents on 19 and 20, Febru- ary. Conner made the decision on the warning and sus- pension. Allen in rebuttal testimony denied that he had talked to Bernice Waddell on 6 March and claimed he was not even sure who she was. He further denied telling Tinsley on that date that he had to deliver a message to Waddell. He did not specifically deny being out of his work area on 19 and 20 February. (b) Contentions and conclusions I have previously credited Allen where his testimony contradicted that of Tinsley. I credit his testimony here, also, particularly in light of Tinsley 's confusion and con- tradictory testimony about what exactly she reported to Conner about Allen being out of his work area on 19 and 20 February and about exactly when she reported it to Conner. However, having credited Allen, I am still un- persuaded that the General Counsel has established a prima facie case that the 6 March warning and suspen- sion was based on unlawful reasons . The General Coun- sel has established that Allen was involved in union ac- tivity, and that he was warned and suspended on 6 March for being out of his work area without permis- sion. But Allen's own testimony suggests that he had been in the Bay 1 area on 6 March for he attempted to justify his presence there with work-related reasons. Ac- cordingly, Tinsley could well have observed Allen in the Bay 1 area. Further, Allen did not establish whether he was without a rack or jack or other tools when he was in the Bay 1 area as Tinsley claimed . From the absence of such equipment it could reasonably be concluded that he had no business in the area . Further, Allen failed to specifically ' deny the other instances of being out of his work area alluded to in the warning of 6 March. Ac- cordingly, the 6 March warning and suspension cannot be said to be totally devoid of foundation. Even assuming the warning and suspension was un- warranted, discriminatory motivation under the Act is not necessarily established . As the Board said in Garret Flexible Products, 270 NLRB 1147, 1148 (1984): [T]he question of motivation where an unlawful dis- charge is alleged is not answered by discrediting a respondents' asserted reason for the discharge. 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rather, the answer to that question rests upon an evaluation of all the relevant evidence. Here the evidence fails to establish that Respondent knew of Allen's union involvement at the time of the 6 March warning and suspension. While Tinsley testified that her talk with Allen about the Union took place prior to 6 March, Allen's testimony to the contrary has been credited. Allen never at any time claimed that the con- versation with Tinsley took place before the 6 March warning and suspension. Although Allen passed out union leaflets in front of the plant, there is no evidence he did so prior to 6 March. Accordingly, there is no basis for concluding that Respondent was aware of Allen's union activity or sympathy at the time of his warning and suspension. Hence, it cannot be concluded that Respondent's imposition of disciplinary measures on Allen was based on union considerations. The General Counsel also argues that the warning and suspension of Allen was also unlawful based in part on his involvement in concerted activity on 18 February. This argument is predicated on Conner's assertion in the warning notice, apparently as background, that it had been necessary for Conner to ask Allen twice on 18 Feb- ruary to go to his work station. In disposing of this argu- ment, it is sufficient to note that I have already conclud- ed that the warning issued to Allen on his conduct on 18 February was not based on his involvement in protected concerted activity. Thus, Conner's reference to Allen's 18 February conduct and the 6 March warning, even if it was a consideration in issuing the warning, did not make the 6 March warning unlawful. Accordingly, I conclude the evidence is insufficient to establish that Allen's 6 March warning and suspension violated Section 8(a)(3) and (1) of the Act. 3. The discharge of Allen (a) The evidence On 29 March Allen was called to the production office and discharged by Conner who told Allen the discharge was based on Allen's prior warnings5 and using the tele- phone without permission. Conner showed Allen a writ- ten "Termination of Employment Report" stating: [A]t approximately 11:55 AM, you were observed by supervisors Harry Moss and Shelia Tinsley, out- side your assigned work area using the pay tele- phone. Further investigation revealed that you asked R. T. Coleman for permission but permission was denied since it was close to your lunch period. You were subsequently observed leaving the plant building by the truckers entrance and re-entering thru the employees entrance adjacent to the tele- phone. In-view of the fact that you have been pre- viously warned and given days off for similar viola- tion it is in the best interests of the Company that s Allen had also been given a warning on 14 March for unexcused ab- sences. Allen was advised that consistent with Respondent's "attendance policy" one further unexcused absence would result in his termination The General Counsel does not contend that this warning was either ill founded or discriminatory. your employment be terminated effective immedi- ately. Allen testified he tried to offer Conner an explanation for the telephone usage but Conner cut him short saying he was not interested in the reason. Allen conceded herein that he had used the telephone outside the canteen on the morning of 29 March. He fur- ther conceded that he used the telephone, the one nor- mally used by employees, during worktime but claimed that he had specific permission to use it. Thus, he related that he had left his lunch in his wife's car that morning and found it necessary to call her to bring the lunch to him. It was necessary that he call her before noon, the beginning of the lunch period where she was employed, so that she would have an opportunity to bring Allen's lunch to him before his lunch period started at 12:20 p.m. According to Allen, he initially asked Crew Chief Leon- ard Richardson's permission to use the phone, Richard- son referred him to Supervisor Coleman. Allen testified he asked Coleman about 11:40 a.m. to use the phone ex- plaining why he wanted to use it. Coleman, still accord- ing to Allen, told him to wait about 10 minutes and then make his call. Dock employee Randy Bowmar testified in support of Allen's version of his request to Coleman. However, contrary to Allen, Bowmar said, Coleman, rather than telling Allen to wait 10 minutes told him to wait "a few minutes till it gets a little closer to lunch." Bowmar's memory was uncertain as to the time of Allen's request to Coleman, and he testified he believed the lunch period itself started at 11:30 a.m. Respondent's version of the basis for Allen's 29 March dismissal was submitted through a number of witnesses. Conner testified that he made the discharge decision after being told by Tinsley that Allen was seen using the phone during Allen's worktime, and after ascertaining from Coleman and Richardson that Allen did not have permission to use the phone. Company rules require em- ployees to have supervisory permission to use the tele- phone during their worktime. Coleman, according to Conner, said Allen had asked to use the phone but Cole- man had told him to wait until lunch. Richardson, in es- sence, had told Conner the same thing. Conner denied any knowledge of union activity by Allen at the tme of Allen's discharge. Coleman acknowledged in his testimony that Allen had asked him to use the phone, but denied he gave him permission to use it before lunch. Rather, he said that Allen asked to use the phone about 15 minutes prior to lunchtime and he had told Allen to wait a few minutes until lunchtime. He denied that Allen told him the reason he wanted to use the phone. Richardson in testifying for Respondent related that Allen had used the phone initially at a morning break. He testified further, with some confusion, that Allen had asked him subsequently for permission to use the phone and Richardson had referred Allen to Coleman. Richard- son said Allen subsequently told him Coleman said to "wait a few minutes" to use the phone. In contradiction of a prehearing statement given to a Board investigator, Richardson denied that he had heard Allen request Cole- UNITED CLOTH CO. 591 man for permission to use the phone or Coleman's re- sponses. (b) Contentions and conclusions The General Counsel contends in essence that Allen's discharge was unlawful and based on union consider- ations. In arguing the violation of the Act alleged in this regard, he relies on Respondent's knowledge about Allen's union inclinations revealed to Tinsley by Allen in their earlier conversation about the Union as well as on Allen's testimony, corroborated by Bowmar, that he had specific permission to use the phone. Moreover, the Gen- eral Counsel also asserts that Respondent had never pre- viously discharged an employee for being out of his work area and argues that the basis for discharging Allen was "concocted." Respondent's defense is based on the testimony of its witnesses and particularly that of Coleman contending that Allen did not have permission to leave his work area to use the telephone. In short, there was cause for termination. Moreover, Respondent asserts that even if Tinsley had knowledge of Allen's union activities it could not have been imputed to other members of man- agement since she played no role in the decision to dis- charge Allen. Alternatively, Respondent argues that even if Coleman had not been clear to Allen in denying him permission to use the phone, and Allen thereafter acted in good faith on the belief he had permission, Allen's termination was still justified by Respondent's belief that permission had been denied Allen. If the testimony of Allen and Bowmar is credited re- garding the occurrences of 29 March, then the General Counsel has established a prima facie case that Allen's discharge was discriminatorily motivated. Thus, the Gen- eral Counsel has established on credible testimony that Allen was involved in union activity, that at least by 29 March when Allen was discharged, Respondent was aware through Tinsley6 of Allen's union sympathies and that Respondent harbored union animus as revealed by the conduct violative of Section 8(a)(1) already found herein, Furthermore, if Allen and Bowmar are credited, the General Counsel has established that Allen was dis- charged not only for an offense he did not commit but for conduct specifically authorized. There are' three versions reflected in the record of the exchange between Coleman and Allen, four if one counts the version of Richardson set forth in a prehearing state- ment entered in evidence but contradicted by Richardson at the hearing. However, as previously indicated, Rich- ardson's testimony was confused as well as contradicto- ry. As a witness he appeared hesistant and bewildered. I find him unreliable and incredible and conclude that he not only did not overhear the' exchange between Allen and Coleman but also his further testimony that Allen did not' tell him that Coleman had said to wait until lunch to use the phone. 6 I' reject Respondent's argument that Tinsley's knowledge of Allen's union, activity may not be imputed to Respondent because she had no part in the discharge decision The facts clearly show that Tinsley was a witness to the discharge Moreover, based on Moss' testimony, uncontra- dicted in this regard, it was Tinsley who called Allen's alleged offense on 29 March to Conner's attention Allen's version of the exchange with Coleman ap- peared to be honestly delivered. It was ' substantiated by Bowmar but not in the exact language claimed by Allen. Bowmar as a witness likewise conveyed an impression of honesty in testifying. On the other hand, I was also im- pressed with Coleman's demeanor. He appeared open and trustworthy, and I am persuaded that he was at- tempting to tell the truth to the best of his recollection and ability. Moreover, there is a certain amount of logic to Coleman that Allen wanted to call his wife to bring his lunch. While that claim was contradicted by Coleman even Bowmar's testimony does not establish that Cole- man was advised why it was necessary for Allen to call his wife before noon so that she could bring Allen's lunch to him during her lunch period. There was, there- fore, no way for Coleman to know why it was necessary for Allen to place the call before Allen's lunchtime. Under these circumstances, Coleman's testimony that he told Allen to wait until lunch or to wait a few minutes until lunch- appears entirely reasonable and logical. Con- versely, instruction for Allen to wait only a few minutes or to wait approximately 10 minutes appears inexplicable and illogical. Allen was working on no task which he could have completed in 10 minutes. Considering all the foregoing and the equal credibility of the three witnesses, Allen, Bowmar, and Coleman, I am constrained to the alternative hypothesis offered in Respondent's brief, i.e., that all three were truthfully tes- tifying in their respective versions with Allen and Bowmar; believing that permission had been granted to Allen to use the phone before lunch, and Coleman be- lieving that he had denied such permission prior to lunch. Thus, it cannot be said that a preponderance -of evidence shows Allen was guilty of no offense. In any event, I am persuaded that Coleman was not involved in a conspiracy to concoct some pretext on which to predi- cate Allen's dismissal. Rather, I believe that Coleman, on inquiry from Conner, honestly related his belief that he had denied Allen permission to use the phone before Allen's lunchtime. Therefore, a reasonable basis existed for Conner's belief that this was but another incident of Allen being out of his work area without permission, and a basis for imposing discipline existed. Discipline is a matter of managerial discretion which may not be dis- turbed absent convincing evidence of pretext and unlaw- ful purpose. Midwest Stock Exchange v. NLRB, 635 F.2d 1255, 1264 (7th Cir. 1980). The discipline imposed on Allen, discharge, did not appear unreasonable in light of Allen's prior warnings, which I' have found were not dis- criminatorily motivated. Moreover, contrary to the Gen- eral Counsel's argument, the record shows 'Respondent had discharged at least one other employee in May 1984 for leaving a work station without specific permission, the essence of Allen's offense. Accordingly, fain per- suaded that Respondent has rebutted the General Coun- sel's case and demonstrated that Allen would have been discharged' without' regard to his union activity. I find and conclude therefore that Respondent did not violate Section 8(a)(3) and (1) in Allen's discharge. 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The Respondent, United Cloth Company, Inc., is an employer within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated Clothing and Textile Workers Union, AFL-CIO is a labor organization within the meaning of the Act. 3. Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act by questioning employees concerning their union sympathies, by soliciting grievances from em- ployees in order to discourage their union support, and by threatening employees with job loss and plant closure, all in order to discourage their union activities and sup- port. 4. The unfair labor practices set forth in paragraph 3 above affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent did not violate Section 8(a)(3) and (1) of the Act in the warnings issued to, or the discharge of, Calvin Allen. 6. Respondent did not violate the Act in any other manner alleged in the complaint. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act in- cluding the posting of an appropriate notice to employ- ees. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed' ORDER The Respondent, United Cloth Company, Inc., Spar- tanburg, South Carolina, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively questioning employees about their sym- pathies for Amalgamated Clothing and Textile Workers Union, AFL-CIO or any other labor organization. (b) Soliciting grievances from employees in order to discourage their union support. (c) Threatening employees with job loss and plant clo- sure,in order to discourage their union activities and sup- port. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies on the Act. T If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses (a) Post at its facility in Spartanburg, South Carolina copies of the attached notice marked "Appendix."8 Copies of the notice, on forms provided by the Regional Director for Region 11, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dis- missed insofar as it alleges violations of the Act not spe- cifically found. 8 If 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT coercively question you about your sympathies for Amalgamated Clothing and Textile Workers Union, AFL-CIO-or any other labor organiza- tion. WE WILL NOT solicit grievances from you in order to discourage your union support. WE WILL NOT threaten you with job loss or plant clo- sure to discourage your union activity or support. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. UNITED CLOTH COMPANY, INC.