Whittaker Knitting Mills, Inc.

National Labor Relations Board - Board Decisions

Dec 18, 1973

207 N.L.R.B. 1019 (N.L.R.B. 1973)

WHITTAKER KNITTING MILLS 1019
Whittaker Knitting Mills, Inc., Div. Whittaker Corp.
and Textile Workers Union of America, AFL-CIO,
CLC. Cases 1I-CA-5259 and 11-CA-5302
December 18, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On August 21, 1973, Administrative Law Judge
Sidney D. Goldberg issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief and Respon-
dent filed a brief answering the General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
activity on behalf of Textile Workers Union of America,
AFL-CIO, CLC (the union).
Respondent answered , admitting the discharge of Walk-
er and Henderson , but denying that it was based upon
their union activities , and denying the other allegations of
improper conduct. The issues so raised came on for trial
before me as set forth above. All parties were represented;
they were afforded an opportunity to adduce evidence,
cross-examine witnesses, and argue on the facts and the
law. Briefs filed by General Counsel and by counsel for
respondent have been considered.
For the reasons hereafter set forth in detail , I find that
the General Counsel has failed to prove that the discharge
of Walker and Henderson was based upon their union
activities.
Upon the entire record2 herein , and considering the
demeanor of the witnesses while testifying , I make the
following:
FINDINGS OF FACT
1. The parties
Respondent, a manufacturer of textiles, admits that it
annually exports from North Carolina products valued at
more than $50,000 and that it is engaged in interstate
commerce, I so find.
It is admitted that the union is a labor organization.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
1 The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
SIDNEY D. GoLDBERG, Administrative Law Judge: In
this case, tried before me at Raleigh, North Carolina, on
June 5 and 6, 1973 , the company admits that it discharged
the two employees named in the complaint but insists that
it did so because they falsified their employment applica-
tions and not because of any union activities.
The complaint, as amended,' alleged that Whittaker
Knitting Mills, Inc., Div. Whittaker Corp . (respondent or
the company) had, after interrogating employees concern-
ing their union activity, threatening them with discharge,
and, restricting their communication , discharged Karen
Walker and David M., Henderson to discourage their
1 A charge alleging discrimination against Karen Walker was filed
March 12, 1973, and a charge alleging discrimination against David M.
Henderson was filed April 16, 1973. A complaint on the Walker charge was
issued April 18, 1973, and, on May 17, 1973, the Regional Director
2. Summary of events
Except in two critical areas-whether Walker and
Henderson engaged in protected activities and, if they did,
whether the company had any knowledge concerning such
activities-the facts are substantially undisputed.
Karen Walker and David M. Henderson are compara-
tively well-educated young people with strong social
interests. Henderson holds a bachelor's degree in political
science from Duke University and he spent some time in
postgraduate study at Southern Methodist University.
Walker attended the University of Cincinnati for about 2-
1/2 years. They both testified that their political philoso-
phy is communism but that neither has ever been a
member of the Communist Party.
On October 10, 1972, Walker applied for employment at
Whittaker Knitting Mills. She completed an application
form, stating in the space dealing with education that she
had been graduated from junior and senior high school,
but she left blank the box next to the word "college." She
listed several restaurants in New Jersey as her places of
previous employment and gave two persons, a minister in
New Jersey and a farmer in North Carolina, as personal
references. She was interviewed by Roger Russell, the
company's personnel director, on October 23, and was
hired as a knitter October 25, beginning work that same
day.
On October 26, 1972, Henderson applied for employ-
ment by the company. He completed an application form,
consolidated the two cases and amended the complaint to cover both
Walker and Henderson
2 Typographical errors in the transcript of proceedings have been
corrected by order dated August 8, 197,3.
207 NLRB No. 148
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stating that he had been graduated from high school, but
leaving blank the box next to the word "college." He stated
that he had been employed by a firm called Ridden & Co.,
in California , and gave the members of that firm as his
personal references . He was interviewed by Russell the
same day; he was hired as a mechanic trainee as of
October 31, and reported to work on that date.
Both Walker and Henderson testified that one of their
purposes in obtaining employment at Whittaker Mills was
to organize it. Beginning in late December , they testified,
they began talking to other employees, both in the plant
and at the employees ' homes. On one occasion, Henderson
and Walker had two other employees, Ann Sessons and
James Minnotti, visit with them in Henderson 's apartment
and they discussed political philosophy, after which
Walker gave Minnotti some books to read. Neither Walker
nor Henderson ever signed an authorization card for the
union or ever asked any other employee to do so.
During the afternoon on February 18, Douglas Ander-
son, supervisor of the third shift , asked Vartkes Egsegian, a
training supervisor , whether he had heard a rumor that
Walker and Henderson were "communists" and that they
carried blue cards signifying their membership. Egsegian
said he had not. Later that day Egsegian told James
Minnotti , a mechanic he knew was friendly with Hender-
son, that he had heard that Walker and Henderson were
members of the Communist Party and ,- according to
Egsegian, Minnotti answered "I could have told you that."
The following day, when he came on duty, Egsegian
reported his conversations with Anderson and Minnotti to
Russell, the personnel director . Russell immediately
telephoned an investigating organization and asked it to
check the data contained in the employment applications
of Walker and Henderson.
On Friday afternoon, March 2, the investigator reported
to Russell by telephone that the California employment
reference given by Henderson was "not an incorporated
type of business" and that he was not able to verify
Henderson's California "experience." He also informed
Russell that Henderson had a degree in political science
from Duke University. With respect to Walker, the
investigator reported that he was unable to verify any of
the employment she had listed and was unable to verify her
personal references except that he had reached the minister
in New Jersey who said that "he could not say that he
actually knew her." He further reported that she had
attended college and had at least applied to William and
Mary but he was not certain she had gone there. The
investigator promised final reports , in writing, within a day
or two.
On the basis of this oral report, Russell testified, he
decided on Friday afternoon to terminate Walker and
Henderson . He cleared this decision with the plant
manager the following day.
Henderson was on the third shift (midnight to 8 a.m.).
He worked his shift beginning at midnight Sunday-Mon-
day and, at 8 a.m . Monday, was called into Russell's office.
Russell asked Henderson whether he had attended South-
ern Methodist University and Henderson admitted that he
had. When Russell asked him whether he had attended
Duke University, Henderson answered that if Russell knew
enough to ask the question he also knew that the answer
had to be in the affirmative . Russell then pointed out that
the dates Henderson had given for his employment in
California covered the same period as his academic work
and Henderson admitted that those statements in his
employment application were also untrue. Russell stated
that, with such education , Henderson 's purpose at Whit-
taker could not be to work as a mechanic but Henderson
stated that he liked and needed the job. Russell said that
Henderson "had put him in a bad place" and that he had
no choice but to let him go. Henderson testified that there
was no mention , during the interview , of either commu-
nism or union activity . Henderson was then discharged
and he left the plant.
When Henderson came into the parking lot, he met
Walker who was also on the third shift and with whom he
had been riding to and from work. Walker testified that
Henderson told her he had been discharged and that the
reason given was his falsification of his employment
application.
Later that day Walker arranged to have her personal
attorney call the plant . He did so and reached the plant
manager, to whom he said that Walker had been engaged
in union activities among the employees and that he
wished to put the company on notice of that fact.
Shortly after Walker reported for duty at midnight, she
was called into Russell's office. Russell said that her
application had some discrepancies in it concerning her
education ; that he felt that she had more education than
disclosed, and that she had a college education. He then
made references to Princeton and William and Mary.
Walker answered that Princeton had been an all-male
college when she completed high school and that she did
not attend William and Mary. Russell terminated her
employment and said that if he had made a mistake he
would "eat crow." Walker testified that there was no
reference during the interview to either communism or
union activity.
When she reached home at about 2 a.m., Walker wrote
Russell a letter confirming her termination and stating that
it had been based upon the fact that she had attended
William and Mary but had omitted that item from her
employment application . She stated that she intended to
take the matter to the National Labor Relations Board.
Walker received her final paycheck a few days later with a
handwritten note from Russell saying: "Would you prefer
the University of Cincinnati 1967-1969 & other discrepan-
cies & omissions too numerous to mention".
3. Contentions of the parties
The General Counsel contends that inquiries by compa-
ny officials concerning the activities of Henderson and
Walker show that respondent knew that they were
discussing union organization with other employees; that it
sought an excuse to discharge them; and that the admitted
omissions of educational backgrounds in their employment
applications were used as a pretext.
The company contends that it had no knowledge of any
union activities by either Walker or Henderson. It
concedes that the receipt of information that they were
"communists" stimulated the inquiry into their employ-
WHITTAKER KNITTING MILLS 1021
ment applications and that this played a part in the
decision to discharge them, but it insists that their
discharge was based entirely upon their falsification of
their employment applications.
4. Discussion and conclusion
a. Preliminary
Both Walker and Henderson testified frankly to their
political belief in communism, that is, that the workers
should be the owners of the means of producing wealth
and that the real struggle in the world today is that of the
workers for power. They also testified that, in discussion
with other employees, they frankly advocated these beliefs.
One of these employees was James Minnotti.
Respondent's account of the series of events leading to
the termination of Walker and Henderson, outlined above,
is, on its face, plausible and it is supported by evidence,
including the admissions of Walker and Henderson that
their statements concerning their education and experience
were false. On the basis of the evidence which he has
adduced, however, the General Counsel contends that the
company's use of the misstatements in Walker's and
Henderson's applications was merely a pretext to cover its
antiunion motive for their discharge. The real problem,
therefore, is whether the General Counsel has sustained his
burden of showing, by a preponderance of the evidence,
that the company's purpose in discharging Walker and
Henderson was to discourage their activities on behalf of
the union.. The resolution of this problem, in turn, depends
upon two other questions: whether Walker and Henderson
were engaged in protected activities and whether the
company had knowledge of those activities.
b. The union activities
Prior to his employment at Whittaker, Henderson
testified, he had talked with Wilbur Hobby, chief executive
of the North Carolina AFL-CIO,3 about organizing the
plant. Hobby referred them to Scott Hoyman of the Textile
Workers Union and Walker wrote Hoyman a letter. There
is no evidence that the letter was answered or that there
was any personal contact with the union until after Walker
and Henderson were discharged.
Both Walker and Henderson testified that they never
signed union authorization cards or asked any Whittaker
employee to do so, that neither of them ever wore a union
button or asked anyone else to do so, and that they never
publicly distributed handbills or other material before their
discharge.
They both testified that they discussed political philoso-
phy and advocated both the validity and necessity of a
communist society. It is apparent, from their testimony,
that the basis and central subject of the talks they said they
had with other plant employees was the revolution of the
present society into one organized on the basis of the tenets
of political and social communism . They testified that they
talked, during the period of their employment, with as
many as 12 (Henderson) or 20 (Walker) employees, telling
them that they, Walker and Henderson, were communists;
that communism was "the way to go"; and that the
workers needed to organize for the coming struggle for
power and to "smash capitalism". They testified that they
told these employees that the revolution would be violent if
the capitalists introduced violence but they denied that
they had ever advocated specific violence, such as the
seizure of the Whittaker plant or its machinery. It also
appears from their testimony that, in discussing the
struggle for power, Henderson and Walker stated that
unions were useful as a "first step" in preparing for that
struggle and, when asked by the employees which union
they meant, they talked of the Textile Workers' Union.4
Walker testified that, at Henderson's apartment in
January, she gave Minnotti two books to read-Edward
Bellamy's "Looking Backward" and Friedrich Engel's
"Socialism-Scientific and Utopian"-and a copy of "The
Progressive Worker" a newspaper she helped prepare.5
Another employee, Ann Sessons, was present but there was
no testimony that anything was given to her.
In addition to their talking with other plant employees,
Henderson testified that on one occasion, some months
before his discharge, he discussed unionism in general with
Carl Maas, the plant manager, who answered that he was
"firmly against unions" and would never want his workers
to be "subjected" to one. Henderson also testified that
Maas said that communism would be good for undevel-
oped countries like India and those in Southeast Asia
because that is the only way they could modernize, but
Henderson did not testify that he told Maas that he was a
communist. Henderson testified that he never discussed
unions or unionism with any other supervisor.
Walker testified that only once-except for the discus-
sion with Karen Holt described below-did she discuss
unions with a supervisor; that on that occasion, without
disclosing her own attitude, she talked with a floorlady
named Rose Hill and Hill said that people who wanted a
union would not last long at the plants Although she
testified that she and Henderson were discussing the
possibility of organizing a shop committee and putting out
a leaflet, Walker testified that she never asked any other
employee to assist in either of these endeavors.
There is no doubt that, after they were discharged, both
Walker and Henderson passed out leaflets and copies of
"The Progressive Worker" at the entrance to the plant.
Also after they had been discharged they had an interview
with an official of the union and he offered to represent
them in filing their charge with the Board.
c. Company knowledge
Russell testified that his decision to terminate Walker
and Henderson was made late in the afternoon on March
2, after he had received the telephone call from the
investigator reporting that both Walker and Henderson
had more education than was shown on their applications
3 Walker testified that this contact occurred about a month after she was
hired by Whittaker.
4 In 1971 an election was held at the plant and resulted in a vote against
the Textile Workers.
5 Minnotti testified that he did not read "all" of this material.
6 This incident is not alleged as a violation of Section 8(a)(1). Walker
also testified that Hill was no longer at the plant.
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that their personal references were not reliable. Russell
admitted that the original report he had received from
Egsegian, that Walker and Henderson were communists, in
addition to triggering his investigation, was treated by him
as true and that it contributed, in a major degree, to his
determination to discharge them. These two factors were
the only ones underlying his decision, Russell testified,
because he had no knowledge at that time of any other
facts that required consideration.7
The General Counsel, in support of his contention that
union activities by Walker and Henderson were known to
the company and that the investigation of their employ-
ment applications was a "search for an excuse to
terminate" them, points to Russell's testimony that he
heard, in January, about the gathering of Walker , Sessons,
and Minnotti in Henderson's apartment and his admission
that, since the plant was nonunion, any meeting of
employees might be "suspected" of being a union meeting.
Investigation of Russell's suspicions concerning Walker
and Henderson then proceeded, the General Counsel
contends, through Egsegian's interrogation of employees,
with direct questions to employee Fred White concerning
Walker and Henderson, surveillance of their activities at
the plant, and, finally, to a "search for an excuse to
terminate" them.
The General Counsel's argument, in several respects,
lacks support in the record. White's testimony was that
Egsegian, after asking whether he had heard anything
about union activities in the plant, asked him about union
activities by Henderson and he answered that he knew of
none. There is no reference to Walker in White's testimony
concerning this conversation with Egsegian. Egsegian,
while admitting that he had questioned several employees
about union activity and that, in talking with White early
in February, "it is quite possible I asked him if he heard
about any union activity or union talk",s firmly denied that
he asked any questions about union activity by Henderson.
White's testimony on this point is not convincing:, he
testified to two separate conversations with Egsegian, the
foregoing one early in February, and another one late in
March, after Walker, Henderson, and White had all
terminated their employment at the plant. White admitted
that he was "mixed up" between the two conversations but
was clear that Walker and Henderson, and their discharge,
were discussed at the conversation late in March. Under
these circumstances, and considering White's hesitancy
while testifying, I am unable to find, on his testimony
alone, that in February Egsegian asked specifically about
Henderson's union activities.
While the source of Anderson's statement to Egsegian
characterizing Walker and Henderson as communists does
not appear in the record, there is no dispute that he made
that statement. Egsegian's testimony about his conversa-
tion with Minnotti is clear and Minnotti's effort as a
witness to avoid corroborating Egsegian's testimony was
unconvincing. In any event, there can be no dispute that
Russell, immediately following Egsegian's report, request-
ed that an investigation be made, concerning the informa-
tion given by Walker and Henderson in their applications
for employment and that on March 2 he received reports
that showed that their applications contained major
misstatements.
As heretofore noted, Henderson was discharged at 8 a.m.
on Monday, March 5. He met Walker shortly thereafter in
the parking lot and he told her what had happened to him.
Neither testified that they discussed any other subject.
Earlier that morning, however, according to Walker's
testimony, there had occurred a conversation between her
and Karen Holt, her floorlady, which is relied upon by the
General Counsel as proof of respondent's knowledge of the
union activities of Walker and Henderson and of respon-
dent's antiunion motive. The conversation, according to
Walker, occurred at 4 o'clock that morning during a break:
she testified that Holt told her that a knitter to whom
Walker had talked earlier that day had gone to Timmons,
the shift supervisor, and had complained about it; that
Timmons had instructed her, Holt, if she saw Walker again
talking to any other employee, to send her to the office to
be disciplined. According to Walker, Holt then said,
"sometimes I will tell you what it is all about" but, when
she answered that she thought it was about the union, Holt
replied "Right," and continued by saying that "several
people had complained to supervisors about David
Henderson and ' [Walker j talking about the union." Holt
further told her, Walker testified, that both she and
Henderson should be "real careful" whom they talked to
because they were both being watched and that she, Holt,
had been told by a mechanic who worked with Henderson
that Henderson would make "a real good mechanic but he
wouldn't stay around very long if he didn't keep his mouth
shut about the union." Holt concluded, according to
Walker, by saying that she "felt like a policewoman." Holt
denied having had any conversation with Walker on this
date, except for customary casual comments, and she
denied each of the statements attributed to her by Walker.
In addition to showing that respondent had knowledge
of the union activities of Walker and Henderson before
they were discharged, the General Counsel contends that
this conversation constitutes interference, restraint, and
coercion violative of Section 8(a)(1) of the Act.
Upon all of the evidence, however, I am unable to make
a finding that this conversation occurred. A serious
obstacle to my acceptance of Walker's account is the
testimony of both Walker and Henderson concerning their
conversation when they met in the parking lot shortly after
8 a.m., that morning. They testified that Henderson told
Walker that he had just been discharged and, had the
conversation with Holt occurred as Walker described it, it
seems incredible that Walker would fail to tell Henderson
about it but there is no mention, in the testimony of either
Walker or Henderson concerning their conversation when
they met that morning, of any of the damaging statements
made by Holt. Moreover, Walker's further testimony that
it was because of Holt's statements to her, and not because
7 At this time , Russell testified, he did not know that Walker and violative of Section 8(a)(1) of the Act but, since there is nothing in the
Henderson had been discharged from a Burlington Textiles plant because of question itself or its background to show that the questioning had any
similar misstatements in their employment applications there. coercive qualities, no violation is found
8 This interrogation is alleged as interference, restraint , and coercion
WHITTAKER KNITTING MILLS 1023
of Henderson's discharge, that she asked her lawyer to put
the company on notice concerning her union activities,
appears to be both an explanation of her failure to tell
Henderson about her conversation with Holt and an effort
on her part to bolster her account of that conversation.
Since Walker impressed me as an intelligent and knowl-
edgeable person, within the limits of her age and
experience, I am convinced that she recognized that this
testimony, if accepted, would go far toward establishing an
unlawful reason for her discharge and that of Henderson in
place of the reason assigned by the company-the
admitted falsification of their employment applications.
This testimony, therefore, must be regarded as self-serving
and given weight accordingly. In view of Holt's absolute
denial of this conversation, Walker's testimony that she
had never before discussed unions or union activities with
Holt, Walker's demeanor, and the factual probabilities
involved, I cannot find, on the basis of Walker's testimony
alone, that this conversation occurred as Walker described
it.
Summing up all the evidence, therefore, I find that
Russell, having heard from Egsegian that Walker and
Henderson were communists, instituted an investigation of
their employment applications and, when that investiga-
tion disclosed that they had misstated the extent of their
education and Henderson, at least, had falsified his
previous employment record, he was satisfied that he had
adequate reason for discharging these two employees and
that he thereupon did so. In view of the principle, so well
established as to require no citation of authority, that, so
far as this Act is concerned, an employer may discharge
employees for any reason or, no reason, so long as the
discharge is not to infringe, on rights guaranteed by the
9 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended order herein shall, as provided in Sec.
Act, respondent herein may not be faulted if it discharged
Walker and Henderson either because they falsified their
employment applications or because they were, or it
believed them to be, communists. On this record, I cannot
find that the organizational activities of Walker and
Henderson were known to the respondent or that they
played any part in respondent's decision to discharge them.
Accordingly, I shall recommend that the complaint herein
be dismissed.
On the basis of the foregoing findings of fact, and upon
the entire record, I reach the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2), and engaged in commerce within the meaning
of Section 2(6) and (7), of the Act.
2. The union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Roger Russell , Vartkes Egsegian, and Karen Holt
are supervisors of respondent within the meaning of
Section 2(11) of the Act and its agents within the meaning
of Section 2(13) of the Act.
4. Respondent has not violated either Section 8(a)(1) or
(3) of the Act.
On the foregoing findings of fact and conclusions of law,
and pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDERS
The complaint herein is hereby dismissed.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and order, and all objections thereto shall be
deemed waived for all purposes.