Appendix — Dubin-Haskell Lining Corp. v. National Labor Relations Board

_ cf ~¥ — _ .

APPENDIX, A_

(Decision of United States Court of Appeals ;

For the Fourth Circuit, Rehearing En Banc) ©

- UNITED STATES COURT OF APPEALS

‘For rue Fourra Crecurr . Ms

No. 10,242 i

- Dusrn-Haske.i Living Cosp., . |

: Petitioner,

versus oo

NaTIONAL ‘Lazor ictal ike .

. Repent,

Reneazinc En Banc or Petirion For Review or aN : Onpzr

or THE NationaL Lasor Rexations Boarp.

(Argued October 3, 1967. Decided November 10, 1967.)

Before:

Haynswortu, Chief Judge, ahd sila Sais

_ Bryan, Warem, Caray: and | Butaumh, Cireuit J —

‘Ricwarp E. Mier (Margolies & Miller on brief) for

. Petitioner, and Ex.iorr Moorg, Attorney, National |

_ Labor Relations Board, (Arnold Ordman, General

Counsel, Dominick L. "Manotz, Associate General |

Counsel, Marcen Mauiet-Prevost, Assistant General

- Counsel, and Roszrr A. Giannast, Attorney, Na-

_ tional Labor Relations Board, on brief) for Respond-

' ent,

2a

. Appendia A

WINTER, Circuit Judge:

In Dubin-Haskell Lining tire. v. Labor Board, 375 F. 2d

568 (4 Cir. 1967), a panel of this Court granted enforce-_

ment in part, and denied enforcement in part, of an order

of the National Labor Relations Board. The order concerned

a céttain Fred Cox, an employee in the shipping department

of the company. The Board found that Cox had been inter-

fered with, restrained and coerced ‘in the exercise of his 47

rights, in®violation of §8(a)(1) of the Act, that Cox had

been improperly discharged for union activities, in violation

of § 8(a)(3) and §8(a)(1) of the Act, and that Cox had

been refused reinstatement as an employee because he had

filed unfair labor practice charges, in violation of § 8(a) (4),

and ordered appropriate relief. The panel sustained the

Board’s conclusions with reference to the § 8(a) (1) coercion

. violation, but set aside the Board’s findings with regard to

the §8(a)(3) and §8(a)(1) discharge violation, and the

§ 8(a) (4) violation. :

- Thereafter, the Board petitioned for rehearing or, in the

alternative, for rehearing en banc, limited to the § 8(a)(4)

violation. Rehearing en banc was ordered.’ Upon rehearing,

we conclude that the portion of the opinion of the panel

setting aside the Board’s findings that § 8(a) (4)-of the Act

was violated should be withdrawn, that the findings should

- be sustained, and that the portion of the Board’s order

granting relief based thereon enforced.

Briefly stated, the facts are that Cox was discharged on

Saturday, July 25, 1964. Three days later, Cox filed charges

with the Beart, alleging that the seis aed had violated the

1'While the Pails granted rehearing en Seine without specifications

as to the issues to be considered, the briefs of the company and the

. Board concern themselves solely with the § 8(a) (4). violation. .On

oral argument, counsel placed principal stress on this issue. We see

no occasion, therefore, to reexamine the other aspects of the panel’s

Seer ey ee een ee ee a . DepED

3a .

Appendia A

Act by terminating his employment for union activity, and

by other acts and conduct which interfered with, restrained

and coerced employees in the exercise: of their statutory

rights. The next day, the company was served with a copy

of the order, at its Collierville, Tennessee office. © °

On July 30, Cox telephoned Jones, the plant manager,

and asked if he could see him. Jones. consented, and Cox

went to Jones’ home.

What transpired at the meeting ° was the subject of con-

flicting testimony. The trial examiner found, and his finding

was adopted by the Board, that Cox told Jones that he was

there to see him about getting his job back, and that Jones

told Cox that the home office would not let him hire Cox

back because Cox had filed a charge against them. Cox told .

Jones that he would drop the charges if Jones would give

him his job back. Jones told Cox that Droxell (another

manufacturer in Moscow, Tennessee) had called him about

an application Cox had made for employment, that he

(Jones) could not recommend Cox, and that Cox should

not have hopes of ever getting back to work for the company.

Cox further inquired of Jones whether Jones had talked to

the home office in New York. Jones replied that he would do

so, but that Cox should not have any hopes of ever getting -.

back to work with the company. Accordingly, the trial ~

examiner concluded that Jones had revealed that the com-

pany ‘‘ * * * was not and would not consider Cox for reem-

ployment because Cox had filed unfair labor ——

. charges’’—conduct.in. violation of § 8(a) (4) of the Act. -

Cox did testify as the trial examiner found, but Jones

: testified to the contrary. He claimed that he refused to rein-

state Cox for the same reasons that Cox was discharged, al-

though the record is-not clear that he communicated the

reason for the refusal to Cox. He testified further that his

only reference to Cox’s having filed unfair labor practice

charges was that Cox could not drop the charges before the

investigation had been made. Jones was specific in stating

4a

A ppendia A

- that Cox was the one who brought up the subject of the

charges, but that he, Jones, did not. The trial examiner

_. found, from Jones’ testimony and a previous inconsistent

affidavit, from his demeanor as a witness, and from his

testimony as a whole, that Jones’ testimony was not reliable |

and, accordingly, did not credit his version of the incid

Matters of ‘¢redibility are essentially a fora tr trial

examiner and the Board. Demeanor as a witness‘is an im-

portat element affecting credibility, but on which is not

reflected in the ordinary transcript. Thereé is, however, in

this case, an affidavit of Jones which, at the hearing before

the trial examiner, Jones admitted was true and correct at

the time it was made. In the affidavit, Jones stated that Cox

arrived at Jones’ home at 4:30 P.M. on July 29 and asked

for his job back. It continued, ‘‘I told him that in view of his

filing charges that I couldn’t possibly rehire him. Cox said °

he had nothing to do with any union and offered to with-

_, draw the charges.”’ Thus, the record as a whole discloses not

only a conflict between the testimony of Cox and that of

_ Jones, but also a previous inconsistent version by Jones of

his oral testimony at the hearing. The findings and con-

clusions of the trial examiner are thus supported by sub-

stantial evidence and must, under these circumstances, be

accepted.

From the premise that Jones disclosed the company’s

reason for not considering Cox for reemployment was be-

cause -he had filed unfair labor practice charges, it neces-

sarily follows that § 8(a) (4) of the Act was violated. By its

terms, that section makes it an unfair labor practice for an

employer ‘‘to-discharge or otherwise discriminate against

an employee because he has filed charges or given testimony

under this Act.’’? In the’ cases which have considered this

section it has been held that the ‘‘otherwise discriminate’’

provision of § 8(a)(4) includes a refusal to reinstate and

that, in either a case of discharge or a refusal to reinstate,

%

one

hag

5a

‘Appendia A

the employer’s motive is the decisive factor. If an em-

ployer terminates or refuses employment because the em-

ployee has filed charges with, or testified before, the Board,

the employer’s action violates that section; but if an em-

ployer is motivated by lawful: considerations, as, for

. example, tue employee’s poor work record, the employer’s

action is not prohibited. Labor Board v. Whitfield Pickle

Company, 374 F.2d 576 (5 Cir. 1967) ; Iowa Beef Packers,

-Inc. v. Labor Board, 331 F.2d 176 (8 Cir. 1964); Pratt é

Whitney Aircraft Division, etc., v. Labor Board, 310 F.2d

676 (5 Cir. 1962); Labor Board v. Lamar Creamery Co.,

246 F.2d 8 (5 Cir. 1957) ; Labor Board v. Syracuse Stamp-

ing Co., 208 F.2d 77 (2 Cir. 1953); and John Hancock Mut. -

Life Ins. Co. v. Labor Board, 191 F.2d 493 (D.C. Cir. 1951).

Here, the trial examiner, whose finding of ‘fact is supported

by the record considered as a whole, found that the com-

‘pany’s motivation was discriminating. Accordingly, we —

grant enforcement of the portion of the Board’s order

_ remedying the §8(a)(4) violation.

*

Enforcement granted in } part,

Boreman, Circuit Judge, dissenting: — |

I dissent. With respect to the alleged section 8(a) (4)

violation I adhere to the decision of the panel as reported in .-

Dubin-Haskell Lining Corp. v..N.L.R.B., 375 F.2d 568 at

pages 574 and 575 (4 Cir. 1967).

Judge Bryan has authorized me to state’ that he joins in

this dissent.

a | 6a

APPENDIX BL

- (Decision of the United States Court of Appeals

_For the Fourth Circuit, Three Judge Panel)

UNITED STATES COURT OF APPEALS

’ For tHe Fourts Circuit

a : of No. 10,242

Dusry-HaskeL Lixine Corp.,

Petitioner,

against

Nationat Lasor Rexations Boarp,

Respondent. .

’ On Perrrion ror Review or aN OrpER oF THE NATIONAL

Lasor ReEiations Boarp.

(Argued March 11, 1966. Decided March 10, 1967.)

“

~

Before Boreman, Circuit Judge, Marvin Jonzs, Senior

Judge,* United States Court of Claims, and Bryan, Circuit

- Judge. : “ ;

Ricuarp E. Miter (Marcories & Mier on brief) for Peti-

tioner; and Rosert A. Gunwast;Attorney, National

Labor Relations Board (ArNoLtp OrpMman, General Coun-

sel, Dominick L. Mano, Associate General Counsel,

Marcet Matiet-Prevost, Assistant General Counsel, and

Exuiorr Moorz, Attorney, National Labor Relations

Board, on brief), for Respondent.

* Sitting by designation. .

” eat " se a eR im ae

Ta

Appendia B

- Boreman, Circuit. Judge:

» By its petition Dubin-Haskell Lining Corp. (hereafter the

company), seeks review of the action of the National Labor

Relations Board which determined that the company had in- |

terrogated, discriminatorily discharged, and refused to re-

instate an employee, Fred Cox, in violation of sections 8(a)

(1), (3) and (4) of the National Labor Relations Act. The

Board ordered that Cox be reinstated to his former position

with back pay and all other rights and benefits.

The company is a New York corporatién which manufac-

tures linings for men’s shirts. It has principal places of

business in New York, South Carolina and Tennessee. This

proceeding involves the plant located at Collierville, Ten-

nessee, a town, of 2, 000. The company employs twenty-

seven or twenty-eight workers and the plant is managed by

Charles Jones. Fred Cox worked in the shipping depart-

‘ ment and had been so employed for five yous preceding

his ‘discharge.

At the outset the company argues that Cox was not an

employee protected by the Act, but was a ‘‘ supervisor”? with

‘the power to make recommendations as to hiring, firing,

and the transfer of men and that he was responsible for the

shipping department. Section 2(3), 29 U.S. C. 152(3)

(1964), of the Act excludes ‘supervisors as defined by

section 2(11), 29 U.S. C. 152411) (1964). The latter section

provides:

‘‘The term ‘supervisor? means any individual

having authority, in the interest of the émployer, to

hire, transfer, suspend, lay off, recall, promote, dis-

charge, assign, reward, or discipline other employees,

or responsibly to direct them, or to adjust their

gn grievances, or effectively to recommend such action,

if in connection with the foregoing the’ exercise of

‘ such authority is not of a merely routine or clerical

nature, but requires the use of independent judg-

ment.’’

8a

Appendia B

At the hearing, plant manager Jones testified that Cox

was responsible for the operation of the shipping depart-

ment; that he had authority to recommend that.men be

hired, fired and transferred from one department to an-

_other and recommend increases in compensation to certain

employees. However, soon after Cox’s discharge Jones

had signed an affidavit in which he expressly and specifi-

cally denied that Cox had any authority to hire and fire.

The affidavit pointed out that Cox had merely suggested

transfers and that his duties in the shipping . wpe nnemt

were no more than routine in nature.

| Cox testified that he neither possessed nor exercised

such powers but did on occasions suggest that employees

be given a raise. However, he denied recommending or

suggesting that employees be transferred out of the ship-

ping department. The Examiner found that Jones’ de-

‘ meanor was lacking both in candor and a desire to state

the facts objectively; on the other hand, Cox appeared to

be frank and forthright. The Examiner concluded that if

there were factual conflicts he chose to accept Cox’s version .

over that of Jones. :

_ Whether an employee is a supervisor is a question of

fact to be resolved by the Board, and such finding, if sup-

ported by substantial evidence, must be accepted as final.

' Northern Virginia Steel Corp. v. N. L. R. B., 300 F.2d 168,

171 (4 Cir. 1962); NV. L. R. B. v. Southern Bleachery &

Print Works, 257 F.2d 235, 239 (4 Cir. 1958). In view of

Cox’s own statements that he had no powers or authority

of a supervisor coupled. with the affidavit of Jones, and

the Examiner’s findings as to Jones’ demeanor, we find

that there was substantial evidence to support the Board’s

conclusion that Cox was not a supervisor. It seems that

‘Cox’s duties, even if considered in light most favorable

to the company, were no more than routine in nature and

that any followed recommendations of his were honored

out of. respect for his judgment rather than because of

9a

~Appendia, B

delegated authority. WN. L. R. B. v. McCormick Concrete

Co., 371 F.2d 140 (4 Cir. 1967); Northern Virgmia Steel

“Corp. v. N. L. R. B., supra.

INTERFERENCE, RESTRAINT, AND Comnonos

With respect to the section 8(a)(1) violation the Exam-

- iner found that Cox, in April 1964, contemplated organiz-

ing the workers at the Collierville plant. The desire for

union representation of employees was engendered and

stimulated by the company’s denial of an employee request

for an increase in wages. In early June Cox was sum-

moned by Jones to the latter’s office. Jones asked Cox if

any of the men were contemplating forming a union and

Cox replied in the negative. Jones told Cox that important

customers (Colonial and Spartan) ‘‘would quit us’’ if a

union were organized and it would mean Cox’s job as well

as his (Jones’). Jones ended this conversation by asking

Cox .to let him know in the\ event anything further was

heard about the union.

Jones admitted discussing union activity and making a

statement to the effect that Colonial and Spartan would

cease doing business with the company if the latter were

unionized. However, Jones claimed that such a discussion -

took place on the floor of the plant and not in his office.

Jones denied that he threatened or interrogated Cox and

he likewise denied that he asked Cox to report any union

activity to him. .

_ he findings of the Examiner when based on credibility

of witnesses are given added weight by the Board. As a

general rule such findings when adopted by the Board are

to be accepted by the court. Universal Camera Corp. v.

N. L. R. B., 340 U.S. 474, 495; N. L. R. B. v. Southland

Mfg. Co., 201 F.2d 244 (4 Cir. 1952). See Jaffe, Judicial

Review: Questions of Fact, 69 Harv. L. Rev. 1020, 1035-38

(1936).

=

‘ 10a

Appendia B

Accepting the Board’s findings as to what occurred, we

are .united to deciding a question of law—whether the

statements made by Jones violated section 8(a)(1) of the .

Act. Even in this area we give due consideration to the

Board’s expert opinion as to the effect. of such statements.

N. L. R. B. v. McCormick Concrete Co., supra; N. L. R. B.

v. Stanton Enterprises, Inc., 351 F.2d 261, 264 (4 Cir.

1965) ; Daniel Constr. Co. v. N. L. R. B., 341 F.2d 805, 811

(4 Cir. 1965).

It is clear that such statements may « or can be violations

of section 8(a) (1) although they contain no express threats

of economic reprisals. While it might be argued . that

Jones’ remarks amount to little more than prophecy and.

expression of opinion within the protection of section: 8(c),

the request to report future activity seems calculated to

‘create the impression that the employer was on guard-

for uhion activity, and intended if need be to take measures

designed to prevent the union from gaining a foothold.

Likewise ‘such questions and remarks, made without assur-

ances that no reprisals would be taken, leave the employee

to conjure up various images of employer retaliatiog. We

are not concerned at this point with the company’s argu-

ment, discussed 8 gy the Board has not proved that

the ‘company. had knowledge ef Cox’s union activity for |

the remarks made by Jones were violative of section 8( a)

(1) even if made without any knowledge of Cox’s organiz-.

ing role because such remarks would have the effect of

chilling future as well as any present union activity.

DiscHARGE IN pe or SECTIONS 8(a) (3). anD (1)

‘ The Examiner found that Cox was discharged. for his

union activity in violation of sections 8(a)(3) and (1) of

the Act; that, despite the fact that Cox had been questioned

by Jones, Cox was steadfast in his desire and efforts. to

-organize the men at the Collierville plant; that Cox es.

tablished contact with the Amalgamated Clothing: Workers’ \

2

‘ lla

Appendia B

of America, AFL-CIO, in Memphis, which organization —

referred him to a Mr. Burcham; and that Cox, asi isted by

- Thomas Anthony, a fellow-employee, increased efforts

to organize the employees and to secure authorization cards.

- The Examiner further found that on Saturday, July 25, ©

1964, Cox reported to work and noticed that a drawer of

his desk was in a state of disarray as though it had been

‘ ransacked. Cox also noticed that Jones was already at work

in his office although it was. only 7:00 A.M., and this was

- most unusual since Jones seldom worked on Saturdays.

Shortly thereafter Johes summoned Cox into his office

and stated that he (Cox) twas being discharged. . When

Cox asked the reason for this action Jones informed him

that it was due to the fact that he could not get along with

his féellow-employees. Cox stated that this was not true

and asked for the real reason to which Jones replied that

he did not: want to lose his temper and thereupon handed

Cox an envelope containing his wages then due.

The company explains that Cox could not get along with

the other employees because he had requested that four

workers be transferred out of his department. However,

in an affidavit signed several weeks after Cox’s discharge

and at the hearing Jones assigned two additional reasons

for discharging Cox. He asserted that Cox had been in-

subordinate and that he was incapable of accepting criti-

cism. As an example of Cox’s insubordination Jones testi-

fied that on July 24, 1964, the day prior to Cox’s discharge,

he noticed that the center lining department needed help

and ordered Cox to take his. men to that department. Jones ©

stated that Cox sat on a box without evidencing an attempt

to obey the instruction, and that he answered Jones in rude

_ fashion. After some time had elapsed—the exact length

is in dispute—it was called to Jones’ attention that the-

‘center lining department was still in need of assistance and |

that: Cox and-his“men had not reported. Jones returned

to the shipping department and on seeing Boyce Wilson

12a ~

Appendia B

ordered him to report to the center lining department.

_ . Wilson testified that he asked Cox if Jones had instructed

the men to work in center lining but that Cox did not answer

him, The Examiner found that after Jones instructed Cox

to report to center lining the latter .

.

‘‘said. words to the effect that the men in center-

lining were about caught up and did not need any

help. Cox did not immediately take his men over to

‘Center Lining’ but went.to the restroom. Around

15 minutes later someone from: the Center Lining

complained to Jones about needing help. “Jones went

out into the work area, did not see Cox or the other

men working in Center Lining but saw one of Cox’s

‘men (Boyce Wilson) and told Boyce Wilson to go and

help in Center Lining. About this time Cox returned

from the restroom and took his other men over to

‘Center Lining.’ Boyce Wilson asked Cox why he

had not been told to go to Center ward and. Cox

did ‘not reply.’’

The examiner further found that, because Jones later

supplied additional reasons for Cox’s discharge, the reason

given to Cox at the time of discharge was false and that the

additional reasons were pretextuous, simply an after-

thought i in an attempt to conceal the real reason motivat-

ing Cox’s discharge.

No testimony was producedsto prove that. Jones or any

other representative of the company knew that Cox or any.

other employee was attempting to organize the plant. The

Examiner assigned as reasons which led him to believe that

Jones had knowledge of Cox’s union activities the follow-

‘‘Considering all the evidence in the case, the

smallness of the plant and the small number of

. employees (27), the smaliness of the town in which

ie \

$ / \

1a

Appendia B

the plant was located (population 2,000), Jones’.

definite interest ig, the union problem as revealed by

‘his statements: to Cox in early June 1964, the false

reason for discharge and the additions thereto, and

the past ina that many of Respondent’s em-

ployees had repgrted union activity to the Respond-.

ent’s Manager Jones, I find it proper to infer and .

do infer from all the circumstances of this case

that Respondent’s Manager Jones’ knew of the

union aétivity of Cox and his fellow employees.?’

The company contends that the Trial Examiner’s refer-

ence to ‘‘the false reason for discharge’’ represents ‘an

improper shifting of the burden of proof to the company

because the Board must prove a discriminatory motive

and, in the absence of any positive evidence thereof, it is

not the company’s burden to prove a lack of discrimination. ©

This court has held that proof of the company’s knowl-

edge of an employee’s union activity is essential to the

establishment of a discharge as discriminatory.

‘*Unquestionably, knowledge by the Company of

' a dischargee’s union membership is a prerequisite to

a finding that the discharge was made for that rea-

son and the Board has the burden of proving this .

knowledge. beyond mere suspicion or. surmise.’’

N.L.R.B. v. oo Chair Co., 361 F. 2d om, 291

(4 Cir. 1906). , )

' 1 See Seaver Valley Canning Co. v. N. L. R. B.; 332 F.2d 429, .

433 (8 Cir. 1964); Portable Electric Tools, Inc. v. N. L. R. B., 309

F.2d 423, 426-27 (7 Cir. 1962); N. L.. R. B. v. Minnotte Manu-

facturing Corp., 299 F.2d 690, 692 (2 Cir. 1962); N. L. R. B. v..

Tepper, 297 F.2d 280, 283 (10 Cir. 1961); N.L.R.B. v. Redwing

Carriers, Inc., 284 F.2d 397, 402-03 (5 Cit. 1960); N.L.R.B. v:

_ Ford Radio & Mica Corp., 258 F.2d 457, 461, (2 Cir. 1958) ;

N. L. R. B. v. Kaiser Aluminum & Chemical Corp., 217 F.2d “366,

368 (9 Cir. 1954) ; N. L. R. B. v. Whitin Machine Works, 204 F.2d

883, 884 (1 Cir.’ 1953); N.L.R.B. ¥. Sparks-Withington Co., 119

F.2d 78 (6 Cir. 1941); Minnesota Mining & Manufacturing Co., 81

NLRB 557, 559 (1949). .

Pi gt

Agpendia B

' Judee Bell, speaking for this pm in Riggs Distler &

~ Company v. N.L.R.B., 327 F. 2d 575, (4° Cir. 1963), held

- .. that while the Examiner can properly resolve issues of

eredibility ‘‘nonetheless the Board, after discounting all

explanations offered by an employer for discharge of em-

ployees, must find unlawful motivation through ounatantins

direct or indirect evidence.’’ Id. at 580.

Since no direct evidence has been proffered to establish

the company’s knowledge the Board is neeessarily. relying

.on indirect or circumstantial evidence. However, the same -

standard applies to the findings of the Board based on indi-

‘rect proof, i.e., they must be supported by substantial evi--

dence.. This court has followed Chief J udge Parker’s defi-

nition of, substantial evidence laid down in Appalachian.

Electric Power Co. v. N.L.R.B., 93 F. 2d 985, 989 (4 Cir.

1938). Substantial evidence was there defined as ‘‘evidence

furnishing a substantial basis of fact.from which the fact

in issue can reasonably be inferred; and the test is not

satisfied by evidence which merely creates a suspicion or

which amounts -to no more than a scintilla:or which gives

equal support to inconsistent inferences.’’ Appalachian

Electric was cited as authority in Riggs Distler & Co. v.

_N.L.R.B., supra at 580, and in N.L.R.B. v. Shen-Valley

Meat Packers, Inc:, 211 F. 2d 289, 293 (4 Cir. 1954). It

_ seems that the edifice of employer discrimination erected

by the Board in this case rests on too weak a foundation to

withstand the substantial evidence test. The Examiner

theorized that, because in the past employees had reported

union’ activity to Jones, this fact tended to prove com-

pany knowledge of present activities. But the Examiner

- points to no evidence which fixes with any, degree of speci-

- ficity the nature of ‘the prior union activity—secret or

overt. Indeed the only basis for this theory lies in the

specious inference that because an act or series of acts

_ occurred at an earlier time it follows that, under similar

Appendix B

circumstances, ow will again occur. This reasoning has

been. soundly rejected in other areas of the law. 1. Wig-

more on Evidence, § 192 (3d ed. 1940) ; 1 Jones on Evidence,

§ 162 (5th ed. 1958).

The Board relies on the fact that the company offered

‘‘false and pretextuous’’ reasons to justify Cox’s discharge

as evidence establishing the eompany’s antiunion’ motiva-

tion. However, we cannot infer that reasons later assigned

for Cox’s discharge are false merely*because they were not

revealed to Cox at the time Jones told him he was fired.

While the Board adopted the Examiner’s findings it

appears to place particular emphasis upon two facts—the -

small work force (28) and the size of the town (2,000)—

from which it claims substantial support for the inference -

that the company had knowledge of Cox’s efforts in

behalf of the union. Circumstantial evidence must be of

such a character that it can reasonably be accepted as

‘- establishing as a fact the matter which is in issue. -

N. L. R. B. v. Shen-Valley Meat Packers, Inc., supra at 293.

It would appear that the evidence creates no more than

a mere suspicion to support the inference that the company

had knowledge of Cox’s union activities. Then atop this

"inference the Board concludes that having learned of Cox’s

role in union organization his discharge was due to this:

activity. This proof pales in comparison to the company’s

evidence that Cox was discharged because of a combination

of factors—the last straw being his insubordination and

failure to follow instructions. Indeed the Examiner found —

that Cox permitted fifteen minutes to elapse before making

any effort to obey the order to report to the center lining

department where help was needed. The Examiner also

accepted Boyce Wilson’s testimony that Jones ordered him

(Wilson) to report to center lining, although it was felt that

Wilson was confused as to how much time elapsed. The

Examiner and the Board rejected all reasons offered by

the employer to justify Cox’s discharge despite the find-

ies :

ov oe

l6a

Appendia B

ings of Cox’s insubordination. It is the function of appel-

late courts to review the findings of the Examiner as

‘adopted by the Board in order to determine whether such

findings are supported by substantial‘evidence on thé whole °

record. Bilton Insulation, Inc. v. N. L. R. B., 303 F.2d 98

(4 Cir. 1962).

- The Board’s holding that-the company violated sec-

tions 8(a)(3) and (1) by discharging Fred Cox is not

supported by substantial evidence and the order of re-

- instatement will not be enforced.

_ Section 8(a)(4) VioLation

The Examiner and the Board also found that the com-

pany violated section 8(a)(4) of the Act by refusing to

reinstate Cox because he had filed unfair labor practice .

charges.? The Examiner, who once again credited Cox

rather than Jones, found that on July 30, 1964, Cox, after

getting Jones’ permission, dame to the latter’s home and

asked to be reinstated; Jones stated that he could not have

his job back becayse of the unfair labor practice charges;

that Cox offered to withdraw the charges but that Jones

remained firm in his refusal to rehire Cox: ‘On this basis

the Examiner and the Board concluded that the company

violated section 8(a)(4). We find this conclusion to be

lacking substantial support in the evidence. The evidence

as interpreted by the Examiner and -the Board does not

. constitute a violation of section 8(a) (4). Cox had been

discharged previous to the filing of unfair-labor practice

charges. It was he who sought out Jones and it was he

who made the offer to withdraw the charges. Jones made

2 Section 8(a) provides “It shall be an unfair labor practice for

an employer * * * (4) to dischatge or otherwise discriminate against

an employee because he has filed charges or nen testimony under

this — gO 9 0”

17a

Appendia B

no threats, promises or offers to bargain. This is not a

situation where an employee who has filed charges is sub-

sequently discharged or denied reinstatement at the termi-

nation: of a strike. It seems entirely consistent with the

company’s discharge of Cox in the first instance to deny

him reinstatement at a later time. If the law were as the

Board contends any employer who had discharged a worker

for cause would be hard pressed to justify a denial of his.

request for reinstatement. after such worker had filed un-

fair labor practice charges. The Seventh Circuit recently

stated that ‘‘engaging in protected concerted activity, such

as filing grievances, does not immunize employees against _

discharge for legitimate reasons.”” Hawkins v. N. L. R. B.,

‘358 F.2d 281, 283 (1966). Nor'does such activity insure —-

that a request for reinstatement will be granted.

The petition of the company to set aside the Board’s

order as to the violations with respect to Cox’s discharge—

sections 8(a)(3), (1). and (4)—will be granted and Cox’s

discharge will stand approved; the company’s petition to

set aside the order with respect to the independent section

8(a)(1) violation is denied and the Board’s cross-petition

for enforcement as to that violation is granted.

Enforcement granted in

part and demed in part.

18a

APPENDIX C

° (Decision and Order of the National Labor

Relations Board)

’ oe

UNITED STATES OF AMERICA

BrEerorE THE NATIONAL ‘Lapor ‘RELATIONS Boarp

Case No. 26-CA-1882_ .

..

y ‘ae

Vv

Dusin-HaskeLt Linine "Cone.

and |

| Frep A. Cox, an Individual

>

—— é

On May 12, 1965, Trial Examiner Jerry B. Stone issued

his Decision in the above-entitled proceeding, finding that

the Respondent had engaged in and was engaging in certain

unfair labor practices within the meaning of the National

Labor Relations Act, as amended, and recommending that

it cease and desist therefrom and take certain affirmative

attion, as set forth in the attached Trial Examiner’s De-

cision. Thereafter, the Respondent filed exceptions to the

Decision and a supporting brief.

_ Pursuant to the provisions of Section 3(b) of the Act,

the National Labor Relations Board has delegated its pow-

ers in connection. with this case to a three-member panel.

The Board has reviewed the rulings of the Trial Ex-

aminer made at the hearing and finds that no prejudicial

error was committed. The rulings are hereby affirmed.

The Board has considered the Trial Examiner’s Decision,

_ the exceptions and supporting brief, and the entire record

-19a

: Appendia C

in the case, and poet adopts the findings,’ a

and recommendations of the Trial Examiner.”

ORDER 4

Pursuant to Section 10(c) of the National Labor Rela-

tions Act, as amended, the’National Labor Relations Board

hereby adopts as its Order the Recommended Order of the

Trial Examiner, and orders that Respondent Dubin-Haskell

Lining Corp., Collierville, Tennessee, its officers, agents,

successors and assigns, shall take the action set. fect in

the Trial Examiner’s Recommended Order.

\

Dated Washington, D. C., Aug. 20, 1965. |

/s/ Joun H. FAnnIne, oe Member |

, hae GERALD A. Brown, ~*~ Member

Pte ghee /8¢ Hlowane Jeuxme, JR., iteoker

NationaL Lasor Rextations Boarp

(SEAL)

1The Respondent has eScepted to certain credibility findings

made bythe Trial Examiner. As it is the Board’s established policy

not to overrule a Trial Examiner’s resolutions with respect to credi-

bility unless, as is not the case here, the clear preponderance of all

. the relevant evidence convinces us that the resolutions were incorrect,

we find insufficient basis for disturbing the Trial Examiner’s credi-

bility .findings. Standard Dry Wail Products, Inc., " NLRB 54,

enfd., 188 F. 2d 362 (C. A. 3),

s Meniber Jenkins, in agreeing with his cdinauin that the

Respondent had knowledgé of Cox’s union activities prior to his

discharge, finds sufficient evidence apart from the small size of

Respondent’s -plant and the community where it is located for

inferring such. knowledge.

In view of the holding herein, the Board finds it unnecessary to

pass upon the finding of the Trial Examiner (footnote 10 of his

Decision), that even if Cox were a supervisor his discharge would

still be violative of the Act.

20a

A APPENDIX D

_ (Trial Examiner’s Decision and

Recommended Order) —

UNITED STATES OF AMERICA

Berore tHe Nationa. Lasor Reations Boarp

Division or TR1aL EXAMINERS

WasHINGTON, D. C. .

Case No. 26-CA-1882

Dvusin-HaskELL Linine Corp.

and

Frep A. Cox, an Individual

4.

Vw

Hersert I. Meyer, Esq. Memphis, Tenn:, for the

General Counsel. :

Mr. Frep A. Cox, for the Charging Party pro se.

Ricuarp E. Miuzr, Esq., New York, N. Y., for the

Respondent.

Pamir Lament, Esq., Chicago, Ill., and Guapys Coney,

St. Louis, Mo., for Interested Party (Amalgamated

Clothing Workers of America, AFL-CIO).

Before: Jerry B. Sroyz, Trial Examiner.

* ms ‘

e s wane °

. 2la

-Appendia D

TRIAL EXAMINER'S DECISION

: Senile OF THE Case a iyttatnt

iad a cia filed on July 27, 1964, by Fred A. Cox, an

Individual (herein sometimes called the Charging Party),

the’ General Counsel for the National Labor Relations

Board, by the Regional Director .of the Twenty-Sixth

Region (Memphis, Tennessee) issued a complaint dated

September 11, 1964, against Dubin-Haskell Lining Corp.

(herein sometimes called the Employer or Respondent),

alleging violations of Section 8(a)(1) and (3) of the Act.

- The Respondent’s answer filed on September 24, 1964, ad-

mitted many of the facts but denied the commission of un-

fair labor practices. -

Pursuant to appropriate notice, a hearing was held be-

fore Jerry B. Stone, duly designated Trial Examiner, at

Memphis, Tennessee, on October 28, 1964. All parties

were represented at the hearing, participated therein, and

were afforded the right to present evidence, to examine and

cross-examine witnesses, to offer oral argument and to file

briefs.

At the hearing the General Counsel amended his com-

- plaint to reflect the filing of an amended charge, and al-

leged in additional effect that Respondent had discrim-

inated with respect to the refusal to reinstate Cox because

he had filed unfair labor practice charges against the Re-

'spondent, and that the Respondent had violated Section

8( a) (4) of the Act. Although Respondent did not orally

or in writing amend his answer to the complaint after the

aforesaid amendments, the manner in which Respondent .

litigated the issues reveals that Respondent was relying

_upon the denials in his written answer to the complaint’ .

filed on September 24, 1964.

Oral argument was made by the General Counsel and

Respondent, and a brief from the Respondent has been filed.

Both the oral “oe and the brief have been considered. ~*~

— 22a

A ppendia D

Upon the entire record in this case’ ‘and from my ob-

servation of the witnesses, the following findings of fact,

conclusions of law, and recommendations are’ made.”

FINDINGS OF FACT

a THE Business OF THE Emrtoven INvoLvED

- (The facts pertaining to the business of the Employer

involved are’ based upes ‘the pleading and admissions

therein. |

_ Dubin-Haskell Lining Corp. is now, and has been at all

times material herein, a New York corporation with its -

principal office located at New York, New York, and with -

a plant located at Collierville, Tennessee, where it is en-

d‘in the manufacture of interlinings for shirt collars.

Dpbin- Haskell Lining Corp., in the course and conduct

of its business, during the 12 months preceding September

11, 1964, purchased and received at its Collierville, Tennes-

see, plant, products valued in excess of $50,000 from points

directly outside the State of Tennessee, and during the

same period of time, manufactured, sold and shipped prod-

ucts valued in excess of $50,000 from its Collierville, Ten-

nessee, plant directly to points outside the State of Ten-

nessee.

Dubin-Haskell Lining Corp., the Respondent, is now,

and has been at all times material herein, an employer en-

gaged in commerce within the: meaning of Section 2(6)

and (7) of the Act. —

* All credibility resolutions made-with respect to the witnesses

testimony are based upon a consideration of a composite evaluation of

witness demeanor and logical consistency of the evidence. -

23a

Appendix D

IL Tue Lasor Onasionboy INVOLVED

The facts pertaining to the labgr organisation involved

are based upon a composite of a stipulation by the parties

and the credited testimony of Krieger.

Amalgamated Clothing Workers of America, AFL-CIO,

is now, and has been at all times material herein, a labor

‘organization within the meaning of Section 2(5) of the Act. -

Ill. Tae Unvam ‘Lazor PRACTICES

Preluommary Issues—Credibility Problems

Cox’s Employee Status

The per ry iséues in this case concern certain events

_oceurring during the first part of Juiie 1964, July 24 and

25, 1964, and July 29 or 30, 1964. General Counsel’s wit-

ness Cox and Respondent’s witness Jones in their testi- |

mony give, substantially different versions-of the event in

early June 1964, of the July 25, 1964, incident and of the

July 29 or 30, 1964, incident. Jones’ testimony at the

hearing is substantially different in effect from statements

contained in his August 11, 1964, sworn affidavit. For a

° eomplete understanding of the credibility aspects of. this

case, I find it proper at this point to set sacead certain salient

facts and determinations.

From my observation of the jluaiieeeal demeanor as

they testified I noted and find that General Counsel’s wit-

nesses Thomas Anthony, James Beesinger, Freeman Mil-

~ Jer, Asa*Wilson, Jr., and Fred Cox all appeared to be hon-—

est, frank, forthright and candid witnesses, that they ex- _

_ hibited a desire to fully and objectively state the answers

to the questions propounded, and.I am convinced that their.

testimony was a truthful and reliable version. of the facts

as they knew them.

24a

Appendiz D

Jones, Respondent’s principal. witness, appeared

strained as a witness, with lack of candor, and lacking in a

desire to state the facts objectively. I did not find him to

be credible as to the major part of his testimony. During

the examination of Jones, it came to light that Jones h

given a sworn affidavit to a National Labor Relations Board |

agent. Respondent by argument and by testimony of Jones

attempted to attack the effect of Jones’ prior swérn state-

ment..

. In respect to Jones’ testimony nanhideliin to his prior

sworn riahieent and to the.prior sworn statement the fol-'

arge in the instant case. The spb: effect

at Cox had been discriminatorily di (

, 1964, because of his activities on behalf of a

i: ation. Affixed to a return receipt card, évide

vice of the above charge and an attached letter, is the

“eysignatare of C. B. Jones. The attached: letter averred

“ . that a charge alleging that unfair labor practices had been

committed in violation of the National Labor Relations

Act had been filed. The letter averred that Field Examiner

David Kaufman had begn assigned the case and would con- .

tact the Respondent in the near future.. The letter re-

quested the Respondent to forward to the Regional Office of

the National Labor Relations Board a description of the

facts and circumstances and a written statement of Re-

spondent’s position concerning the allegation in the charge.

On August 11, 1964, around 11 A. M., Field Examiner

Kaufman appeared at Respondent’s plant in Collierville.

Jones’ testimony as to what occurred is largely conclu-

sionary and without reference to specific statements of

Kaufman. On direct examination Jones’ testimon¥ was to

the effect that he did not know that Kaufman was there with

reference to the unfair labor practice charges, that Kauf-

(

\

Appendia D-

ae

man did not permit Jones’ assistant (Gaither) * stay in

the office, that he (Jones) tried-to run his business (answer-

ing the telephone, etc.) and give his statement from 11-A. M. ©

to 4 P. M.; that Jones did not have lunch during this time,

and that Kaufman told him that if he did not sign the state- -

ment he had given that the matter would be -determined

with reference only to the evidence given by the other side

and that this was the last time Kaufman had scheduled to

see him. Jones’ ultimate testimony revealed that Kaaf-

man did not tell him not to have lunch but was to the effect

that the ‘‘questioning’’ was continuous. Jones’ ultimate

testimony revealed that Kaufman told him that unless he

signed the statement that the Region would have to de- -

‘termine the matter on the evidence given by the other side

and that this was the last time Kaufman had scheduled to

see Jones. Jones also testified to the effect that he had a

- college engineering education, that he had training for his

job and had been plant manager for.17 years, that he was an

Elder in the Presbyterian Church, and had only lied since.

becoming an Elder 15 years ago as to matters of no import.

Jones further testified to the effect that he did not know

the legal significance of the words “Soremen”— —** super-

visor,’’ ‘‘reprimand’’ and ‘‘insubordina

The General Counsel questioned: Jon ones with specific ,

reference to many statements contained in the- August. 11,

1964, affidavit which were in apparent conflict with Jones’

- testimony at the heaving. In all cases Jones either testi-

. fied to his lack of understanding of certain words as indi-

cated before or admitted that thé statement was true and

correct. From my observation of Jones’ demeanor, which

appeared. lacking in candor, forthrightness and objectivity,

and a consideration of the conflicts between his testimony

and his affidavit, as well as all the evidence, I am convinced

that his testimony as to the issues of any import: in this

case is not to be believed. As to Jones’ testimony that he

26a

A ppendia D

did not | that Kaufman was investigating the charges

in this case, [ do not believe him. Jones, as “indicated be-

forehand; had been notified on July 28, 1964, that Kaufman |

was assigned to investigate the charges, and that. the Re-

gion desired that Respondent forward a description of facts

and a-written statement. Respondent witness Krieger tes-

tified that he (Krieger) was,a vice president of Respondent

_and was in charge of the factories that produce cut linings.

The Collierville plant was one of these factories. - Krieger

testified that he and Jones spoke to each other on, the tele-

phone daily and that he received a letter from Jones dated

July 27, 1964, setting forth that the reason for Cox’s dis-

charge was insubordination.? Considering the above, it.

_” is hard to believe that Jones had not discussed with Krieger

the problem of the unfair labor practice charges prior to

* August’ 11, 1964. Oonsidering Jones’ educational back-

ground and experience,-I do not believe His testimony to

the effect that he did not understand the words ‘‘repri-

mand’’ and ‘‘insubordinate:’’ It is clear that his testi-

mony was to the effect that he used the words ‘‘insubordi-

_ tate’’ in the conversation with Cox on July 25, 1964, and

. that he used the word “insubordinate¥ in his August 11,

1964, affidavit. ,

It is reasonable that ap investigator in a confidential

type investigation would not desire other potential wit-’

‘nesses hearing the questions and answers of other witnesses

during an investigation. Gaither (the assistant who was

asked to leave the room) was a potential witness and was

. asked to give and gave a statement to the National Labor

Relations Board agent. It is also reasonably good policy —

in investigation to attach weight to sworn ere and

little if no weight to unsworn statements.

2 The exact date that this letter was mailed and received was

not established.

2a

Appendia D .

‘ Considering all the evidence and Jones’ demeanor, I

am convinced that Jones had had reasonable time (July

28, 1964-August 11, 1964) to ascertain what he should do

‘ with reference to the Company’s position herein, that he

did express the Company’s position as of that time. And

that his statement reflected his free answers as of that:

time. However, -L do_not believe Jones’ testimony or his

statement in his affidavit.with respect to what he told Cox

at the time of Cox’s discharge. Gaither, whose demeanor

was that of a person having strong character, of frank,

candid and forthright appearance, testified to the effect

that after Cox’s discharge that Jones told him that Cox

was discharged because he could not get along with other

employees and that Jones said nothing about insubordina-

tion. I am convinced that the alleged reason of insubordina-

tion is 4 reason brought forward by Respondent and J ones

after the discharge as a pretextuous reason.

In summary I am convinced from Jones’ own testimony

that his sworn affidavit reflects his free answers and that

Jones decided to swear to ahd sign the affidavit because

he wanted his position considered. Nowhere in Jones’

testimony does he deny the truth and correctness of the

affidavit except as to his understanding of certain words,

I am convinced from all the foregoing that Jones, in his

affidavit, added to the reason he gave Cox on J uly 25, 1964,

in order to pretextuously - justify the discharge. I am

further convinced that Jones tailored his testimony at the

hearing so as to create an additional defense as to the ‘al-

leged supervisory’’ status of Cox, and tailored his testi-

mony as to the July 29, 1964, incident so as to esca dlame.

I do not credit Jones’ testimony relating to the issijes set

out herein wherein his testimony i is in conflict with his affi-

davit. Nor do I credit Jones’ testimony, nor believe the

alleged facts set forth in his affidavit as to what he said

to Cox at the time of Cox’s discharge as to/thé reasons. for

Cox’s discharge, or as to the conversation with Cox in

28a

: —_— Appendia D

easy June except as to the extent that I have set forth

such facts in my factual findings.

Respondent’ s witness Krieger testified to the effect that

‘he was vice’ president of Respondent in charge of produc-

tion and over the Collierville plant in:this regard. Krieg-

er’s testimony on direct was to the extent that Respondent’s

labor relations and attitude toward the Union was one of.

amiability and belief in democtacy. When asked, however,

whether Respondent would recognize the Union if it had

a majority of the employees signed up at the Collierville

plant, Krieger hedged his answer and tried to minimize

his responsibility and influence on labor relations.

I do not credit Krieger’s testimony to any effect iu this

. regard except to the extent that where the Company is

already organized that its labor relations relationship is

good and that no prior tinfair labor practice charges have

_. been filed against the Respondent. Kriéger was also ques-

tioned about production problems around the time of Cox’s

discharge. Krieger’s answers: were somewhat rambling

and general and referred to ‘‘over abundance of com-

plaints,’ to the effect that complaints fluctuated, and to

the effect that complaints were a little more at the time

of Cox’s discharge. Krieger referred to two companies,

‘‘Gary”’ and ‘‘Marbright.’’ No letters relating to such

complaints, no memorandums relating to complaints, and

no specific written reports of comparison of complaints

were adduced. Considering Krieger’s demeanor and testi-

mony as a whole, I am not convinced that his testimony

- had sufficient objectivity for reliability. I note however

from the facts found hereinafter that it is clear that the

asserted reason given Cox at the time of his discharge was

failure to get along with other employees. I am convinced

- that ‘‘complaints’’ about production is an issue injected

into the ee well after Cos 8 discharge.

- 29a

_ Appendia D

From my observation of Respondent’s witness Leon:

Gaither’s demeanor while. testifying and his testimony,

Gaither impressed me asa reserved, quiet, frank, forth-

- right, candid and completely truthful witness. I .credit

Gaither’s testimony in its entirety. From my observation

of Respondent’s witness Boyce Wilson’s demeanor while

testifying and his testimony, Wilson impressed meas a

frank, forthright and truthful witness. I credit his testi-

mony generally except as to' the portions indicated later

herein in which I found him to appear confused. From my

observation of General Counsel’s witness Charles Wilson’s

demeanor while testifying and his testimony, he impressed

me generally as being a frank and truthful witness. How

ever, I did not find him to be completely frank and forth-

right in his answers as to whether he had heard remarks

on the morning of July 24, 1964, when Jones instructed

Cox to take the men to the center lining department. I

credit his testimony generally but not to the extent thaf

he did not hear what was said on July 24, 1964.

Coxz’s Status as an Employee ®

Cox was originally employed by the Respondept in .

September 1959 and worked continuously thereafter \until

" .

® The facts relating to Cox’s status as an employee are based upon

a composite of the credited testimony of Anthony, Beesinger, Miller,

Asa Wilson, Fred Cox, Leon Gaither, Boyce Wilson and Charles

Wilson, and upon admissions contained in Charles B. Jones’ sworn

statement of August 11, 1964, and upon the credited positions of

Jones’ testimony. I do not credit Jones’ testimony relating to Cox’s

authority to effectively recommend transfers, raises, etc. nor to the

effect of “responsible direction” of employees. In some instances the

manner of questioning and answers by Jones created a situation

wherein the obvious’ inference was that Cox had effective powet as

indicated above although specifically not stated. Jones, who impressed

me as an intelligent man, in such testimony and by. his emeanor

revealed «a lack of candor, forthrightness and truthfulness. |

esl

- 30a

Appendix D )

July. 25,.1964. Cox’s wage rate per hour at the time of

original employment was $1.30 per hour. After employ:

ment and until his July 25, 1964, discharge Cox received

Trial Examiner’s Decision and Recommended Order

two 5-cent raises and one 10-cent raise and was making

$1.60 per hour at the time of his discharge and received

a Christmas bonus..two or three. times as great as other

_ employees in the shipping department. All of the raises

- received by Cox were raises received as part of general

raises given all employees. Two of the other three em-

’ ployees in the shipping department made $1.55 per hour

and the other employee made $1.50 per hour. Cox’s orig-

inal duties when hired. consisted of working in the shipping

department. Cox’s work at that time consisting in tying

bundles, helping pack bundles, strapping boxes, helping

unload trucks, stacking material and helping wrap center

lining. Cox and another employee used a desk i in connection

with the writing of bills of lading ete.

In 1962 Cox was made head shipping clerk. For 90

- percent of his working time thereafter he continued doing

the same work as the other three men in the shipping de-

partment. This work was essentially the same that Cox

had done prior to becoming head shipping clerk. For

10 percent of his time Cox wrote bill of lading and wrote |

contents for ‘boxes.

Cox did not have authority to layoff, recall or suspend

an employee, to grant privileges, to grant overtime, recom-

mend promotions, hire, or to discipline employees. Cox

did not have authority to effectively recommend. hiring .or

firing, transfers or raises: .

- Cox’ denied in his testimony that he recommended the

transfers of Boyce Wilson and William Carter and stated

that he (Cox) was on vacation at the time that Boyce Wil-

son was transferred to the shipping department and Car-

ter transferred out of the shipping department. Jones’

1)

e

?

31a

Appendiz D

testimony elicited by questions as to whether Cox had

recommended transfers was to the effect that he had-so

recommended. Jones’ testimony and his prior sworn

_ Statement reveal that Cox had* ‘‘suggested’’. and had

‘tasked’’ for the transfers.

The General Counsel’s questions directed to, eis Wil-

son. about his transfer related to his transfer ‘‘out’’ of ship-

ping which occurred at a date later than Cox’s discharge.

Boyce Wilson’s answers appear to have confused the

transfer in and the transfer out of the shipping depart-

ment. The confused nature on Boyce Wilson’s testimony

in this respect is completely unreliable to establish the

facts either way.

Cox also denied that he had recommended the transfer.

of either Charles Wilson or Gene Boyd in order to separate

the two from talking to each other. Jones’ testimony was

to the effect that Cox had ‘“‘suggested’’ the transfer of one

of the two men and that Cox had said that the two were

not performing their work because they were talking too

much. Jones’ sworn statement of August 11, 1964, ‘alluded

to the fact that Cox had asked that a transfer be made.

Cox’s testimony as‘to whether he could recommend trans-

fers was to the effect that he knew he could ask concerning

transfers, raises etc. As indicated previously and here-

after I find Cox a more credible witness than Jones. I be-

lieve Jones’ testimony however to the effect that Cox-had

_ related to him that the two men were not doing their work

“properly because they ‘talked too much. I am convinced.

from Cox’s denial that he had recommended their transfer,

that the incident and his conversation did not reach the

strength of sfrong suggestion or récommendation. I am

convinced that Cox’s statements were so weak in tone that

_ the matter was not of such significant statute that he re-

called the incident at time of the hearing in this matter.

Jones’s testimony at the hearing was to the effect that

Cox had authority to recommend transfers and raises, had

sta |

O57 Appendix D /

made such Feoqenmendations, and that the recommenda-

tions were effective. Jones’ sworn affidavit of August 11,

1964, was to the effect that Cox did not have authority to

recommend effectively promotions or raises, that Cox had

made requests for transfers or raises, that Jones had in-

vestigated or considered the facts and had made his own

decision. The facts are clear that Cox had. ested raises

and transfers and that some transfers had been made and

some had not, that some raises had been given. The ques-

tion is whether Cox had the authority to effectively recom- _

mend raises or transfers. It is obviqus that a person may

request, suggest or recommend action and that after a

request, suggestion or recommendation that action.may be

taken favorably in accordance with such request, suggestion

or recommendation. , The -authority to effectively recom-

mend action connotes that: great weight will be given such

. recommendation because of. the grant of such authority.

=

- I. am convinced from a consideration of Jones’ affidavit

and the facts of what occurred that the weight that was

. given Cox’s recommendations was not weight accorded be-

cause of granted authority. but was such weight as might

normally be given. suggestions, requests, or recommenda-

-tions of any experienced employee. Jones’. affidavit and

the facts reveal that the weight given Cox’s suggestions,

requests and recommendations was not the type of weight ©

‘accorded to one who has granted Authority to effectively

recommend action.

_ Jones’ sworn affidavit of August 11, 1964, reveals, and I

accord weight ‘to parts thereof, that the work. performed

by the employees in the shipping department was so rou-

tine in nature that Cox did not actually have to make. any

job assignments. The employee witnesses testified to the

effect; that usually when trucks had to be unloaded, that

Gaither gave the instructions as to who should unload the

trucks, but that occasionally Cox gave the instructions.

ee

~

~~

38a

Appendix D

Cox testified that he did not make the decision but that he —

and the employees discussed and décided who would un-

load the trucks. Cox credibly testified to the effect that

after the- employees had worked several weeks they knew

what to do and would when work was caught up in ship- .

ping go on their own to the ‘‘center lining” department,

that Jones usually passed on instructions to the group.

I am convinced that Jones’ statement in his August 11,

1964, affidavit to the effect that the work was so routine

that Cox did not actually have to make assignments is cor-

rect. Considering all the foregoing, I am convinced that

assignments made by Cox were of such a routine nature

that independent judgment within the meaning of Section -

(11) of the Act was not exercised by Cox.

. Jones’ testimony at the hearing was to the effect that

Cox was responsible for the overall direction of the ship-

ping department and the work therein. It is clear from

all the evidence that as to handling the employees that Cox

had no authority within which he could implement by him-

self the conduct of the work of the employees. Jones testi-

fied that Cox was responsible for ‘‘procedures’’ but did

not .spell out the procedures with any specificity. Jones

- also testified that Cox was not expected to check each item

of production, packing, and tying, etc., and that because

of work on each item at different times that responsibility

for blame could not be placed on the individual employee.

Jones also testified to the effect that Cox for the most part

was responsible for the bills of lading and for his produc-

tion work. Jones’ affidavit of August 11, 1964,’ part of

which I accord weight thereto, was to the effect that in the

final analysis Cox was responsible for the work of the em-

ployees in the shipping department. Considering all the

foregoing and all the evidence, including Jones’ statement

in his affidavit of. August 11, 1964, to the effect that the

work of the employees i in the unit was of such’ a routine

-

Appendia D

nature, I am convinced that such direction or responsibility

for direction that Cox had was of a routine nature and.

did not require the exercise of independent judgment

within the meaning of Section 2(11) of the Act. I am con-

vinced that the absence of any real authority to affect. the

employees in the shipping department and the routine na-

ture of the work reveals that Jones’ use of the word ‘‘re-

sponsibility’’ in describing Cox’s responsibility~for the

work, refers to the fact that Cox servad'as a conduit. for

messages of instructions and complaints.

The totality of all tthe evidence reveals that Jones in

effect considered Cox responsible for the work in the ship-

ping department in the sense of. the person for Jones to

complain to as a receiving instrument for the other em-

‘ ployees. That this did not constitute responsiblity to di-

rect in a nonroutine manner, and with the exercise of in-

dependent judgment is revealed by Jones’ statement in

June 1964 to employees that when te (Jones) was gone

that employees loafed, that Gaither®would be in charge,

_that Gaither was only to have to tell the employees once

and not twice, and that if the employee did not follow in-

structions that Gaither and Jones would work it out later.

_ Jones’ testimony at the hearing was to the effect that

he considered Cox to be a supervisor. Jones’ statement

in his August 11, 1964, affidavit was to the effeet that Cox

was not a supervisor or foreman. An employer’s statement

as to supervision status.is not controlling ig either event.

Considering all the evidence herein I am convinced,

conclude and find that Cox was an ‘‘employeé’’ within the -

meaning of Section 2(3) of the Act* and not a ‘‘super-

visor’’ within the meaning.of the Act.

*See Houston Terminal Warehouse & Cold Storage Co., 107

NLRB 290; Pacific Metals Ltd., 91 NLRB 6966; San Manuel

Copper Corp, 120 NLRB 174; Palmer, 94 NLRB 1477.

350 a

Appendia D :

Events of Early June 1964

Jones’ Conversation with Cox

About Union Activity®

On an occasion in the first part of June 1964 Respond-

ent’s manager, Jones, called Fred Cox, an employee, into

his (Jones’) office. Cox credibly testified to Jones’ ap-''

pearance at the time as is revealed by the following es

from his credited testimony.

‘*A. Well, he looked like he was 5 eanaléd His face

was red £ snd his eyes were glary, ‘like he wanted

to cry, maybe. I mean, by his face being red, and

his eyes glary, I knowed he was. worried. Didn’t

nobody have to'tell me he was worried.’’ }

_ Cox credibly testified that there was no one else in the

office besides Jones and Cox. Cox credibly testified to the -

effect that Jones told Cox to sit down, and asked Cox if

he knew that Alpha Chemical Company had voted in a

union. -Cox replied to Jones that, he did not konw this.

Manager-Jones asked Cox if any of the men in the plant

were thinking about a union. Cox replied to Jones ‘that

the men were not thinking about a union. Jones told Cox:

in effect that Cox knew that Respondent had two big cus-

tomers, the Colonial outfit and Spartan Industries, and

that if the Respondent were unionized that these two cus-

tomers would quit the Respondent, and that this meant

the loss of a majority of Respondent’s business. Manager

Jones told Cox in effect that if the Respondént became

unionized that it would mean Cox’s and Jones’ job. Jones

told Cox to let him (Jones) know if he (Cox) heard any-

thing about a union. Cox replied to Jones that he would

let him know if he heard anything about a union.

5 Based on Cox’s credited testimony. To the extent that Jones’ -

testimony as to this event conflicts, with Cox’s version it is dis-

’ credited. I am also convinced that Jones’ version of this event ~

contained: in his August 11, 1964, affidavit is a self-serving version

and untrue,

36a ™

Appendia D-

Jones’ testimony, which I do not credit, to the event is

revealed by the following, excerpts crem his testimony in

the record i in this case: .

ca

_ Q. Did you have occasion to discuss unions

with any of your employees within the last half

year? A. Yes. This was brought to my recollection*

-by the National Labor Relations Board examiner

when he came out. I had forgotten about it.

Q. And when did this- take place? A. It ‘took

place sometime in early June. It was my positive

recollection that it was out in the shipping depart-

ment, because Fred’ Cox was there ry at least two

other-men. —

Q. Do you kilow who the other men were? ‘<,

No, I don’t, but we were discussing the topic of the

Alpha Chemical Company, which was common news

in Collierville, and which, at the time, everybody was

talking about it, and I talked about how they had an

election, that the union had won and that I had

heard that there was another plant in Collierville

going to be . ann and I had no idea who that

plant- was, buf I expressed the hope that it wasn’t

ours, because they all knew my feelings in the mat-

ter. I didn’t mind a union, but I didn’t think a union

was of an advantage to them and that’s really—

my recollection is not good on that meeting, because

it wasn’t something I had any reason to remember.

Q. Did you ever discuss union with Cox in your |

_ office? A. I did ‘not.

Q. Did you ever threaten Cox with discharge if

‘4 unién ever came to the plant? A. No. That was

not my method to threaten people with discharge for

any reason.” |

7

s~

37a ;

Appendia D

Q. Did you ever request that Cox come to you’

if there was any organizational activity in the plant?

A. No, I didn’t. They had come to me before. I

didn’t figure it was necessary.

- Q. Did you have any suspicion at the time of this

discussion that there was or would be an attempt

to organize your plant? A. No, only that I had

heard by the grapevine that there was another or-

ganizational attempt going to be made in Collier-

ville, but I really didn’t suspect that it would be mine.

Q. Did you, at any time, either on this occasion

or on any other occasion, threaten Cox or any of

the employees concerning union activities? A.. - ;

‘I did not. .

Q. Did you at any time interrogate ‘Cox ‘or any

other employee in your plant about union n activity?

A. No, I did net. bd

In connection with the foregoing it is noted that Jones’

- sworn affidavit of August 11, 1964, alludes to the same in-

cident in the manner as is revealed by excerpts" from the

affidavit.

: “*T do ieleniee talking to: Cox about the union

or Alpha Chemical sometimes in the early part of

- June 1964. I remember telling Fred that I had

heard the union was trying to organize another plant

in Collierville, but I don’t remember specifically

asking Cox if the boys in our plant were thinking

- about a union. I don’t recall ever telling Cox that if

he heard anything about a union in our plant as it

would cost Mn his job as well as mine.’’

As indented, I found Cox to be a witness of frank,

forthright and truthful demeanor and I believe his testi-

mony to the ‘‘Alpha Chemical’ event. As. indicated, I

Se ti‘

Appetite D

did not find Jones to be a witness of frank, forthright and

truthful demeanor and I do not believe his testimony as to

’ the ‘‘Alpha Chemical’’-event. I am also convinced that

Jones’ August 11, 1964 affidavit (insofar as the statements

therein with reference to the ‘‘Alpha Chemical’’ incident

are self-serving) is not truly reflective of the actual facts.

~The General Counsel.contends that the Respondent (by

Manager Jones’ statements in early June 1964 in reference

' to the ‘‘ Alpha Chemical’’ incidents) threatened employees

with discharge if Respondent became unionized and illegally

interfered with employees’ right to engage in or refrain

. from engaging in union activity. by requesting Cox to

report on what he heard about union activity. The Re-

spondent, in addition to a denial of certain facts, contends

‘that the evidence at most reveals statements privileged by

Section 8(c) of the Act. The Respondent contends that,

at most, Jones was expressing opinions as to what would

* happen.

Considering all of the evidence and the foregoing, 2

note the following (1) The facts revealed by Cox’s credited

_ testimony does not reveal that Jones stated that it was

his opinion that the two big outfits would céase being cus-

tomers if Respondent became unionized and (2) There is

no evidence whatsoever to reveal that it was Jones’ opimon

spondent became unionized. . - \

Considering all the foregoing, I ‘am convinced that

Jones’ statements, to the effect that if the Respondent be-

’ that the two big outfits would cease being customers if Re- -

came unionized that.two big customers would quit and .

that this would mean the loss of a majority of the business,

and that if the Respondent became unionized that it would

mean Cox’s and Jones’ job, coupled with Jones’ request

for Cox-to report any union activity that Cox heard, con-

stituted statements reasonably calculated to convey to em-

ployees a threat that Respondent would shut down its op-

i or ee Marve

S9e

hii D

svetiden, résulting in loss.of jobs, if Respondent became

unionized. | Such a threat constitutes Respondent’s conduct

« Violative of Section 8(a)(1) of the Act. I so conclude and

find. .

The questioning of an employee about whether other

mployees were thinking about a union and the requesting .

Se an employee to report on union activity, considered in

light of the threat to employment revealed by the state-

' ments as a.whole, constitutes conduct reasonably calcu-.

lated to reveal to employees that Respondent is checking

on employee union activity and that:reprisals are likely to

occur. Such conduct constitutes illegal interference, re-

straint, and coercion within the meaning of Section 8(a) (1)

of the Act. . I 80 conclude a id find.

Umon Activity and the

Reason Therefor

| ae a lol

Around April 1963 Manager Jones announced -to Re-

spondent’ s employees that they were receiving an overall

raise (apparently 5-cent an hour) and _ that they would

receive another 5-cent (an hour) raise a year later. In

April 1964 some of the employees spoke to Manager Jones

about the raise and Jones turned down the employees’

request for a raise. As a result of the: ‘foregoing, between

‘the last of April and first of June 1964, Cox commenced

thinking in terms of having a union at the Respondent’s

plant. Around the last part of June 1964 Cox commenced

talking to fellow employees (Freeman Miller, Thomas.

Anthony, Asa Wilson, James Beesinger, James‘ Churchill,

James Moore and Ray Cox) about having a union in the

plant. As a result of some of Cox’s discussions with

fellow employees, Cox telephoned representatives ‘of the

AFL-CIO in Memphis, Tennessee,-on July 6, 1964, and

was. told that a Mr. Bill Burcham would get in touch with

him. On July 7, 1964, Cox and Anthony discussed the

40a

agp D a

Trial Examiner’s Decision ak: Recommended Order

progress of events and Anthony thereupon telephoned

Burcham. Burcham told Anthony that he had referred

- Cox’s inquiry to a Mrs. Adele Taylor, a representative

of Amalgamated Clothing Workers of America, AFL-CIO,

and gave Anthony Mrs. Taylor’s telephone number. An-

thony: later related to Cox the results of his. telephone

conversation with Burcham. Cox, on July 8, 1964, tele-

phoned Mrs. Taylor and discussed with her wages at

Respondent and at plants represented by Amalgamated

Clothing Workers of America, AFL-CIO. Thereafter and

until July 25, 1964, Cox continued to talk to fellow em-

ployees at work, and they to each other, about the union,

and attempted to get employees to sign union cards.

-On the occasions when Cox, Thomas Anthony, James

Beesinger, Freeman Miller and Asa Wilson, Jr., discussed

the Union (between the last of June and July 25, 1964)

“at the plant they did not discuss it in such a manner that

either Respondent Manager Jones or Leon Gaither could

overhear what they were saying. Nor did Cox, Anthony,

Beesinger, Miller or Asa Wilson, Jr. report to Manager

Jones or Gaither that they were engaging in union activity.

One of the issues in this case is whether Respondent

had knowledge of the union activity of its employees and

parti¢ularh whether Respondent had mnowtatge of Cox’s

union activity.

The Respondent’s plant is located in Collierville, Ten-

nessee. Collierville, Tennessee is a town of approximately

2, population. The Respondent’s employees, approxi-

mately 27 in number, work in a building wherein its office

is located and: the building is approximately 80 feet by

140 feet in size. The door from the Respondent’s office

which leads to the work area is of an opaque glass. A

person looking through the opaque glass would~have

difficulty, if it were at all possible, in identifying persons

‘in the working area of the building.. Similarly it would

/

4la

Appendiz D

. Trial Examiner’s Decision and Recommended Order

appear that a person in the Respondent’s office would have

difficulty in hearing conversations carried on in a normal

tone by employees in. the working area while operations

-. were being carried on. Leon Gaither, Respondent’ s In-

ventory co-ordinator, and the man in charge when Man-

ager Jones is gone from the plant, credibly testified to the.

effect that he did not know that union activity was being

engaged in during June and July 1964. -I observed. nothing

about Gaither’s demeanor nor in his testimony to reveal

that he would be the type of person to seek to i inquire into

other persons’ affairs unless such inquiry was directly

tied into Gaither’s job. I was impressed by Gaither’s

demeanor and testimony and am convinced that he is a

man of principle and integrity and that he would resist _

- improper i intrusion into matters of illegal connotation. It —

‘is also pen from the evidence that insofar as the em- \

-ployees concerned as to their benefit that Manager |

J ones was the man of decision and power I find nothing

in the evidence to reveal that employees seeking favor .

would be inclined to report things or ‘‘tell on’’ other

employees to Gaither. _

Respondent Manager Jones testified to the effect that

the union discussions that he knew about was a proble

several years ago and the early June 1964 (Alpha Ch

ical) incident. Jones testified: that several years a

the majority of his employees had reported the union

activity of that time to him and that he had assumed

that they would in the present situation. Jones testified

(with reference to questions relating to Cox’s testimony

to the effect that his desk had been gone through on June

25, 1964) that he had no suspicion of union literature, ete.

being in the desk. Although the manner of the questions.

asked Jones, and his answers thereto, leave his testimony |

in such a condition that it might be said that he had not

‘ specifically denied knowing about Cox’s union activity, I

& construe his overall testimony as a denial that he knew

is * a « iii c geet ‘

42a

Appendix D

of Cox’s union activity. As indicated previously, I did

not find Jones a credible or reliable witness in many re-

spects. I-do not credit Jones’ testimony to the effect (1)

that. he had no basis of suspecting that Cox might have

union literature in his possession (2) that the only union

discussion he had with employees in 1964 was the ‘‘ Alpha

‘Chemical’? incident in early June 1964, or that’ he did not

know of Cox’s union activity. As* indicated hereinafter,

I-do not believe that the. reason for Cox’s discharge was

the reason advanced to Cox by Jones at the time of dis-

charge. Consjdering all of the evidence in the case, the +

smallness of the plant and the small number of employees

‘(27), the smallness of the town in which the plant was

located (population 2,000), Jones’ definite interest in the ° /

union problem as revealed by his statements to Cox in.

early June 1964, the false reason for discharge and the

- additions thereto, and the past indications that many of

Respondent’s employees had reported union activity to

the Respondent’s Manager Jones,.I find it proper to infer

and do infer from all the circumstances of this case that

Respondent’s Manager Jones knew of the union activity

of Cox and his fellow employees.°

Events Concerning Cox’s Discharge

”~

On Friday, July 14, 1964, at 2:30 P.M., Manager Jones

gave Cox his weekly payeliock and: gave Cox instructions

* Although Cox and the employees who were - ‘interested in the

union attempted to keep their activity from the attention of Jones,

it is reasonable to believe that their union activity in such a small

plant and small town would be known to. their fellow. employees.

Under all the circumstances it is reasonable to believe that, as in the |

past, one or more of these fellow employees would report on Cox ..

and the other union sympathizers to Jones. |

Appendiz D

about a shipment to go out the next day and told Cox to |

check with an employee named Fletcher the next day about

the shipment.

Cox ‘reported and punched in for work before 7 AM...

. on Saturday, July 25, 1964. At that time Cox noticed

that Manager Jones was already at the plant. Jones nor-

mally, did not work on Saturday, although on occasions

he did come to the plant on Saturday for a few hours

work.” A-short time later, around 7 A.M., Inventory Co-

ordinator Gaither came- to Cox and told Cox that he

(Gaither) was going on a vacation and for Cox to watch

out about some poor quality material he wanted to keep’

separate and about a ‘shipment coming in.* A short time.

later Manager Jones came out of his office and motioned

Cox to come into his (Jones’) office. Cox went into Jones’

office and Jones told Cox to. sit down and'Cox sat down.

Jones told Cox that he was going to let him-go. Cox °

_ asked Jones ‘‘for what.’’. Jones told Cox ‘‘you can’t. get

along with the men out there.’? Cox told Jones that he

had not done anything to anyone: that he knew of and

that what, Jones said was not true. Cox asked J ones

several times to tell him why he was being discharged.

™ Cox testified that Jones’ presence was unusual since Jones did

not work on Saturday. Jones testified to the effect that there was no

work for him on Saturday but that when the plant: had work on

Saturday that he made scattered visits for a few hours at a time.

to the plant. It would appear unysual for Jones, if he had no work

to do, to appear at the early hour of.7 A.M., on Saturday. I credit |

Cox’s testimony to the-effect that this was an usual occurrence.

* Cox credibly testified to the effect that when he came to work

that a fan was on near his desk anti that a desk drawer appeared to

have been ransacked and that the desk drawer was on top of his desk

Manager. Jgnes testified to the effect that he knew nothing about the

condition of Cox’s desk and the desk drawer. In view of the other

factual findings in this case I find it unnecessary to determine whether

the Respondent was responsible for the events touching upon: the

| State or condition of Cox’s desk at the time. S

y

> -~7es

dda

Appendiz D :

Jones told Cox-that he (J edhe} did not want to get mad

and gave Cox an envelope with his paycheck in it.

I credit Cox’s testimony as to what occurred at the

- time of his discharge: Jones in his testimony and in his

August 11, 1964, affidavit alludes to the fact that he told

Cox that he had beep insubordinate the day before.

Gaither credibly testified to the effect. that after Cox’s

discharge that he asked Manager Jones why he had fired

Cox and that the only answer that he received was that

Cox could not get along with the. other employees, that

nothing was said about insubordination. As indicated else-

where, I did not find. Jones a reliable or credible witness. ©

I do not credit Jones’ testimony to the effect that he

made any statement about insubordination to Cox at the

time of Cox’s discharge..

The Respondent contends that. it was not motivated by

union activity considerations in discharging Cox but that

Cox was discharged because. of insubordination, failure

to get along with the other employees and refusal to accept,

criticism.

The principal evidence in support of its claim of in-

subordination is based on Jones’ testimony, general in og

nature, that Cox resisted his orders, and that Cox had

not carried out his instructions on July 24, 1964, about

taking some men into the Center Lining Department. As

indicated previously, I found Jones to be an unreliable

witness as to most of his testimony. I do yot find his

testimony reliable..as to the general effect that Cox re-—

sisted his orders. As to-the incident that occurred on

July 24, 1964, the evidence is not in great dispute. Around

7 A.M. that morning Jones instructed Cox to take the

men over to the Center Lining Department. Cox, at the

time, said words to the effect that the men in center-lining

ae

fA a

fen Appendia D-

were about caught up and did not need any help.® Cox

did not immediately take his men over to ‘‘Center Lining’

but went to the restroom. ‘Around 15 minutes later some-

one from the Center Lining complained fo Jones about |

needing help. Jones went out into the work area, did not _

see Cox or the other men working in Center Lining but —

saw one of Cox’s men (Boyce Wilson): and told Boyce

Wilson to go and help in Center Lining. About this time

Cox returned from the restroom and took his other men

over to ‘‘Center Lining.’’ Boyce Wilson asked Cox why

he had not been told to go to Center Lining and Cox did

not reply. | P | ; :

_ Considering the foregoing and all the evidence in this’

, case, I'am convinced that insubordination was not a rea-

son for -Cox’s discharge. I am convinced that if Jones

had fired .Cox for insubordination that he would have told

__Cox this at the time of his discharge and that Jones would

have later told Gaither that Cox was fired for insubordi-

nation. I do not believe and have not credited Jones’

testimony to the effect that he alluded to insubordination

at the time he discharged Cox. I am convinced that the

alleged insubofdination reason is an afterthought and a

_ pretextuous attempt to hide the real Motivating reason

for discharge. , ees

The principal evidence relied upon by the Respondent

to establish that one of ‘the reasons for Cox’s discharge

* The facts relating to July 24, 1964, incident-are based upon a

- composite of the credited testimony of Cox, Charles Wilson, Boyce —

Wilson, Jones, and Jones’ sworn affidavit. Cox and Charles Wilson. .

placed the time as around 7 A. M. Jones in his testimony did not

place the-time except after work had started. Jones testified that 15

minutes later he spoke to Boyce Wilson and Boyce Wilson placed —

the time of Jones’ conversation with him as around 8 to 8:30.

Considering all the evidence and the demeanor of the witnesses, I.

find Cox’s and Charles Wilson’s testimony as to the time more reliable -

than the other witness. . ;

‘Appendia D

~

‘wae the inability to get along with men consists of the

-fact that Cox had made certain recommendations for trans-

fers of men, recommendations with which Jones disagreed

.at the time or later. Jones in his sworn affidavit stated.

‘‘as far as I know Cox got along with the men in his .

department as well as the men in the plant. None of the ~

employees complained to me about Cox.’? Even from

- Respondent’s version of the. facts, Cox’s requests for

’ transfers of men amounted to only four requests in 2 or 3

-years. Considering the foregoing and all the evidence,

‘including Jones’ attempt after the discharge to develop .

other reasons for Cox’s discharge, I am convinced that ‘

‘inability to get along. with men’’ was not the reason for

Cox’s discharge but:a pretextuous reason utilized to hide

the real reason. .

Jones ‘testified to the effect that there was’ a third

on for his discharge of Cox: This reason was that -

Cox allegedly refused to accept criticism. Considering

the evidence as a whole and the fact that Jones told~both |”

Cox and Gaither that his reason for discharging Cox was |

Cox’s inability to get along with other employees, as well .

as my consideration of Jones’ demeanor and testimony

as a whole, I am convinced that this asserted reason con-

stitutes another. pretextuous reason to cover up the real

reason for Cox’s discharge. .

In summary and conclusion and consid eek of all

of the evidence, the clear concern that Jones displayed

about union: activity in early June 1964, the illegal inter-

_ rogation about and request of r Ss on union activity, -

_ Cox’s union activity prior to his discharge, the flimsy

‘pretextuous reason given for discharge at time of

Cox’s discharge, and the addition thereto of other pre-

textuous reasons for discharge, I am convinced and con-

clude and find that Respondent Manager Jones discharged

Cox on July 25, 1964, ‘because Cox had failed to report

I

- . “47a

i es nea Appengia D

to him about the union activity of the employees, and

because Cox had engaged-in union activity. The conduct

. Of Respondent in discharging Cox. for such reasons con-:

* stitutes conduct violative of -Section 8(a)(1) and (3) of *~

the Act.?° — :

The Event of July 30,1964"

“YS On July 30, 1964, Cox telephoned Manager Jones at

his office and asked if he could come over and talk to him.

Jones told-Cox that he was going by the Post Office-and

then going home. Cox asked’ if it would be all right if |

he came to Jones’ house to talk.to him. Jones-told Cox -

that it would be all right. — 5s

Cox went to Jones’ house and after meeting J ones at

the door the’ two entered into: the. house and sat down.

* Cox*told Jones that he was there to see about getting his

job back. Jones told Cox in effect that the home office .

would not let him hire Cox back, because Cox had filed a \

‘charge, (the charge in the‘instant case) against them. —

‘Cox told Jones that he would drop the charges if Jones

would give him his job back. Jones told Cox that Droxell

1° Even were I to be convinced that Cox were.a supervisor within

the meaning of the Act, I would find his discharge under the circum-

$fances violative of Section 8(a)(1) of the Act and require an |

8(a)(1) type of remedy similar to the normal remedy for 8(a) (3)

type violations. . ;

' 4% Based on Cox’s credited testimony. Considering Jones’ de- .

meanor and testimony as a whole, the conflicts between his August -

11,: 1964, affidavit and his testimony at’ the hearing, I find Jones’

testimony unreliable and do not credit Jones’ version. Cox testified

‘at the hearing that thie-event occurred on July 30, 1964. ‘Jones did -

not testify as to the date. The pleadings and Jones’ sworn affidavit

. allude to the event as occurring July 29, 1964: I find it proper to

fix the date in accordance with the sworn testimony at the hearing.

In any event whether the incident occurred on July 29, 1964, or July:

30, 1964, it is clear that Cox and Jones were alluding to the’ same

incident and. ultimate’ — would not be affected. .

|

hs bn Set Ue 5 Nat Sa eB rn A eae ott hase

48a

©

- (a manufacturer in Moscow, Tennessee) had called him

about an application Cox had made for employment and .

that he (Jones) could not recommend Cox, that Cox should

not have hopes of ever getfing back to work at. the Re-

spondent’s.. Cox asked Jones had he talked to New York

(the home office). Jones said that- he would do so but.

that Cox should not have any hopes of ever getting back

to work at the Respondent’ S.

’ Jonés’ version of the incident as set forth in te sworn

affidavit of August 11, 1964, appears to corroborate Cox’s

version as testified to, and-to contradict Jones’ testi-

‘ monial version. Jones’ statement in his: sworn affidavit

is as follows:

>? m

oe

- On or about Yuly 29, 1964, at aici .

2:00 P.M. I received a pee from Cok at my office.

Cox asked if he could come over to“1 my home that

evening. I arranged to meet him at 4 P.M..at my

home. Cox: arrived at 4:30 P.M. and asked for his

job back. I told him that in view of his filing

charges that I couldn’t possibly rehire him. Cox

said he had nothing to do with any union and offered

‘to withdraw the charges, if I would rehire him. I

told him I couldn’t rehire him and there would still

have to be an interrogation.’’

_ Jones’ version of the event according to his testimony

at the hearing is revealed by the following excerpts from

his testimony : |

“A, Hecame in the Jiving room and we sat down

- and he told me that he wanted to get his job back -

and that he would drop the charges if I would give

-- him his job back and I, told him that he was *hot

af 49a |

‘Appendix D

fired for union activities, he was fired for insubordi-

nation and it was my feeling at that time—

Mr. Meyer: Objection.

=

A. It was ‘my ‘understanding, it was my knowl-

edge. ?

_Q..(By Mr. Miller) Did you ‘state to him what

your knowledge was? <A. I stated to him that I

felt you could not drop the charges before the in-

vestigation had been made. Now, I got that from

something. I don’t know whether it was the papers

that came to me, or what. — ’

Q. So this was the only reference to the po

before the Board? A. That’s right: He’s the one

that brought up dropping the charges. I didn’t.’’

Considering the foregoing testimony and affidavit state-

_ ment of Jones, his demeanor as a witness, and His testimony

as a whole, I find Jones’ testimony as a gine to this

unreliable and have not credited his version of the event.

Considering the credited facts based upon Cox’s testi-

mony, I conclude and find that Respondent Manager Jones, -

by his statements, revealed that Respondent was not and

- would not consider Cox for reemployment because Cox

had filed unfair labor y actice charges. Such conduct is

violative of Section 8(a)(1) and (4) of asad Act. I so con-

clude and find.’? _

IV. THe Errect or THE Unrar Lasos |

Practices Upon CoMMERCE Me

Those activities of Respondent which have ‘been found

to be unlawful as set forth in section III, above, occurring

in connection with its operations set forth in section I,

© ‘ 12T find from the overall facts that Respondent has failed to rein-

state a discriminatorily discharged employee. This constitutes a

continuation of conduct violative of Section a) (3) of the Act.

50a

Appendix D

above, have a close, intimate, and substantial relation to

trade, ‘traffic, and commerce among the several States and

tend to lead to labor dispute burdening and obstructing

commerce and the free flow of commerce.

V. Tue Remepy

Having found that the Respondent has aor in _.cer-

tain unfair labor practices, it will be recommended: that it

cease and desist therefrom and that-it take certain affirma-

tive action designed to. effectuate the policies of the Act.

Having found that Respondent violated Section -8(a)

(3) and (1) of the Act by the discriminatory termingtion

of Fred A. Cox, and having found that Respondeg

lated Section 8(a)(4)(3) and (1) of the Act by. tite dis-

criminatory refusal to consider Fred A. Cox for reinstate-

ment, it is recommended that Respondent offer to Fred A.

Cox immediate and full reinstatement to his former or

- substantially equivalent position, without ‘prejudice to, his

seniority and other rights and privileges, and make him

whole for any loss of earnings he may have suffered by

reason of such discrimination by payment to him a sum

of money equal to that which he normally would have

earned. as wages from the date of his discharge to the said

offer of reinstatement, less his net earnings during such

period, with back pay computed on a quarterly basis in

the manner established by the Board in F. W. Woolworth

Co.,,90 NLRB 289, 294, and with interest thereon as pre-

soribed by the Board i in Isis Plumbing & Heating Co., 138

NLRB 716.

As the unfair labor practices committed by the Re-

spondent were of a character which go to the very heart

of the Act, it is recommended that the Respondent ‘cease

and desist therefrom and cease and desist from infringing

in any other manner upon’ the rights of employees guar-

anteed by Section 7 of the Act.

il alae) lactate Mi ? Sosa AY RN ay ff as niblaletatihastitlaiatialil phaabiatans SA ALP AT

5la

Appendix D

‘Upon the basis of the foregoing findings of fact and

upon the entire record in the case, I make the following:

Concuusions or Law

1. Dubm-Haskell Lining Corp., the Respondent, is

engaged in commerce within the meaning of Section 2(6)

and (7) of the Act. "LS

; mh =

2. Amalgamated Clothing Workers of America, AFL-—

CIO, ‘is now, and has been at all times material herein, a

labor organization wthin the meaning of Section .2(5) of |

the Act.

3. By interfering with, restraining, and coercing em-

ployees in the exercise of their rights guaranteed in Sec-

tion 7 of the Act, the Respondent has engaged in and is

engaging in unfair labor practices within the meaning of

Section 8(a)(1) of the Act. .

4. By discriminating in regard to the hire and tenure

of employment of employees thereby discouraging mem-

_ bership in or activities on behalf of a labor organization,

Respondent has engaged in unfair labor practices within

. the meaning of Section 8(a) (3) of the Act. -

0. By discriminating in regard to the hire and tenure

of employment of employees thereby discouraging the

filing of unfair labor practice charges. with the National

Labor Relations Board, Respondent has.engaged in unfair

labor practices within the meaning of Section 8(a) (4). of

the Act. |

6. The aforesaid unfair labor practices are unfair

labor practices affecting commerce within the meaning of

Section 2(6) and (7) of the Act.

a

52a

Appendix D

Re JMMENDED OpER !*

“lite

> ; | ~ |

Upon the basis of “ foregoing findings of fact and

conclusions of law and. upon the entire record in this case,

it is recommended that Respondent, its officers, agents, suc-

cessors, and assigns, shall:

1. Cease and desist from:

(a) Discouraging membership in or activities on behalf

of Amalgamated Clothing Workers of America, AFL-CIO,

or in any other labor organization of its employees, or dis-

couraging the filing of unfair labor practices charges-with

the National Labor Relations Board, by discharging, re-

fusing to reinstate, or otherwise discriminating in regard . .

_ to the hire or tenure of employment or any terms of con-

dition of employment of any of its employees.

(b) Interrogating its employees concerning theirs or

other employees’ union affiliation or activities, or protected

concerted: activities, in a manner constituting interference,

restraint, or coercion in violation of Section 8(a) (1) of

the Att.

(c) ‘Requesting seltonsi to report on the union activi-

ties of its employees, in a manner constituting interference,

restraint, or coercion in violation of Section 8(a) (1) of

the Act.

18 In the event that this Recommended Order be adopted’ by the

Board, the word “Orper” shall be deemed substitutéd for the words

“RECOMMENDED Orper.” Additionally there shall be deemed sub-

stituted for the first paragraph of the Recommended Order the

following paragraph : .

‘Upon the entire record in these cases, and pursuant to Section

10(c) of the National Labor Relations Act, as amended, the ~

National Labor Relations Board hereby orders that Respondent,

its officers, agents, successors, and assigns, shall:

53a

\

Appendiz D- ~

%

(d) Threatening employees with loss of jobs or em-

' ployment or other reprisals because of their. activity on

behalf of Amalgamated Clothing Workers of America,

| AFL-CIO, or on behalf of any other labor organization of

its employer.

(e) In any other manner interfering with, restraining,

or coercing its employees in ‘the exercise of their right to

self-organization, to form, join, or assist labor organiza-

tions, to bargain collectively through | representatives of

their own choosing; and to engage in concerted activities.

~ for the purpose of collective bargaining or other mutual

aid or protection as guaranteed by Section 7 of the Act,

and to refrain from any and all such activities.

2. Take the following affirmative action designed to

effectuate the policies of the Act: |

(a) Offer to Fred A. Cox immediate and full reinstate-

ment to his former or substantially equivalent position

without prejudice to his seniority and other rights and

privileges. |

(b) Notify Fred A. Cox if presently serving in the

Armed Forces of the United: States of his right to full *

reinstatement upon application in accordance with the

Selective Service Act, and the Universal Military Training

and Service Act of 1948, as amended, after discharge from

the Armed Forces. - ,

(c) Make whole Fred A. Cox for any loss of pay he

may have suffered by reason of the discrimination against

him by payment to him of a sum of money equal] to the

amount he normallywould have earned as wages from the’

date of his discharge to the date of Respondent’s offer of

reinstatement in the ‘manner set. forth in the section. en-

‘titled ‘‘The remedy.”’ .

548,

Appendix D-

(d) Preserve and make available to the Board and its

agents, upon request, for examination and copying, all pay-

‘roll records, social‘ security payment records, . timecards,

- personnel records and reports, and all other records rele-

vant.or necessary to the determination of the amounts of

‘ backpay due and to the reinstatement and related rights

provided under the terms ‘of this Recommended Order.

(e) Post at its plant in Collierville, Tennessee, copies

of the notice attached hereto marked ‘‘ Appendix’’ * copies’

. of said notice, to be furnished by the Regional Director for

the Twenty Sixth Region, shall, after being signed by the

- Respondent’s representative, be posted by the Respondent

immediately upon receipt thereof and maintained by it for

60 consecutive days thereafter in conspicuous places where

_ notices to employees are customarily posted. Reasonable

' steps shall be taken by the Respondent to insure that said

notices are not altered, defaced, or covered by any other

material.

Notify the Regional Director for the — Sixth

- Region, in writing, within 20 days from the date -of this:

Recommended Order, what steps the Respondent has taken

to comply herewith.'®

Dated at Washington, D. C. oa

’ Jerry B. Sronsg,

Trial Examiner.

14 In the event that this Recommended Ordet be adopted by the

Board, the words ‘A Decision AND OrpvER” shall be substituted for

the words “A RECOMMENDED OrpeR oF A TRIAL ExAMINER” in the

notice. In the further event that the Board’s Order be enforced by a

decree of a United States Court of Appeals, the words, “A DEcrEE

OF THE UNITED States Court oF APPEALS ENFORCING AN ORDER”

shall be substituted for the words “A Decision AND ORDER.”

15 In the event. that this Recommended Order be adoptedby- the - —- ~--

Board this provision shall be modified to read: “Notify said Regional

Director, in writing, within 10 days from the date of this Order what

steps the —— has taken to comply herewith,”

s

55a

‘APPENDIX E

-(Excerpts from Hearing Before the

: Trial Examiner) — :

. (Numbers in parentheses refer i pages in Jétnt. Appendia

filed with thé Court of Appeals)

(68a-69a) Mr. Meyer: No,sir. As I stated in my

opening statement, there is no showing here of direct

company knowledge and I am also contending that

there is no necessity, no burden on General Counsel .

to-show that direct knowledge is a sine qua non of

a discriminatory discharge ; that company knowledge

of employee’s union activity must be inferred from -

the record as a whole.

Now, I am not contending per se that Mr. Jones

sat’ there and actually overheard a conversation

between Mr. Cox and another employee concerning

_ the union, but I am saying that this record will -

show, and an inference must be made that Mr. J ones

had knowledge.. Now, how he got that knowledge I

don’t know and really am not concerned with, other

than the fact that he did in fact get knowledge of ’

Mr. Cox’s union activity and it will be inferred

clearly from this record.

(72a) Mr. Miller: The question was, isn’t it a

fact the employees named not only didn’t conduct

the activities in the open, but they purposely con-

ducted them in such a way that Mr. Cox wouldn’t

be informed—Mr. Jones ‘wouldn’t be informed that

they were taking place.- ’

Mr. Meyer: Again, I object, Mr. Examiner.

(73a) Trial Examiner : Overruled. I will allow.

~ ie

A. Yes, we had to.

a a iain ps

56a

Appendix E /

Q (By Mr. Miller) During these Mavetenticns, did you

make it a point to stop the conversations on the arrival

of Mr. Gaither or Mr. Jones nearby? A. No. We wasn’t

talking loud enough for anybody to hear us. We couldn’t

have been.

‘ ‘e/e * :

(99a) Q. You offered to’ withdraw your charge if he

would take you back? A. Right.

Q. -And the inlitiative was on your part? A. Right.

bad *- * .

) (17a) Q. (By Mr. Miller) Mr. Jones, I refer to the sec-

ond from last page of General Counsel’s Exhibit No. 2. On

that page it states, in the last paragraph, ‘‘On or about

July 29, 1964, at approximately 2:00 p. m., I received a call

from Mr. Cox at mty office. Cox asked if he could come

over to my home that evening. I arranged to meet him |

at about 4:00 p. m. at my home. Cox arrived at about 4:30

and asked for his job back. I told him that in view of the

filing of charges that I couldn’t possibly rehire him.”’ A.

That is—

Q. (Interrupting) Now, is that an accurate statement

of what transpired at your house “that nett A. No, it

is not.

Q. What did take place in that regard, your conversa-

tion with Mr. Cox? A. He came and offered to withdraw —

the charges if I would give him his job back. I told him -

that I did not think that was possible as long as an investi-

gation was going on.

Q. And why didn’t you reinstate him, or ‘ihe did you

refuse (138a) to reinstate him at that time? A. Because my

reasons for firing him were the same then as when I fired

** @ .¢@ :

(138a)-Q. (By Mr. Miller) Why is that statement incor-

- pect? A. Because I did not understand Mr..Kaufman and

Mr. Kaufman did not understand me. He had beén question-

4 > \

eae: "Ste

e . Appendia E

ing me for five hours straight, from a quarter’of 11:00 until

a quarter of 4:00, I had been there from a quarter of 7:00.

Thad no lunch, He did not permit anyone else in the office.

I had to try to conduct the business all this time that this ©

was goingon, _ : Oe

Q. This took place in the plant? A. That’stight. °

Q. On a week day, a business day? A. That’s right.

Q. And you say. you didn’t take time, out for lunch?

A. That’s right. Furthermore, he threatened that if I

did not sign this, we would not have any chance to-present

a case, that the case would be entirely one-sided. .

Q. Now, what did you take this to mean? A. To mean

- this was the only chance—

, (139a) Mr. Meyer: Objection.

A. That I had to sign it.

e¢ *

rf

‘ (142a) Q. (By Mr. Miller) You stated that this ques-

tioning took place during the week, or this preparation of

_ the affidavit was on a week day? A. That’s right.

Q. And were you running the plant at this time? A. Yes. -

Q. Did you tell Gaither, Leon Gaither to take over for’

_ the day? A. I didn’t even have time to say anything to

him. Mr. Kaufman sent him out of the office and says,’

“Don’t come back in.’ ' - |

Q. Did the phone ring during the course of this? A.

Yes. I answered the phone. Gaither caught some of it.

There is an extra phone out in:the shipping and he caught

some of it, rns |

Q. When did the questioning begin, what time of day?

A. A quarter until 11:00.

Q. What time did you come to the plant that morning?

A. A quarter until 7:00. ! Sy . :

Q. And what time did the questioning conclude? A. A

quarter of 4:00. | .

' (231) Q. And you had no time out for lunch? A. No. °