# Appendix — Dubin-Haskell Lining Corp. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_1488%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1968 - **Citation:** 393 U.S. 824 ## Text _ 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? ‘ -~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? ; | ~ | 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. ° --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_1488%3A2. Public record. Not legal advice.