Calmos Combining Co.

National Labor Relations Board - Board Decisions

Aug 18, 1970

184 N.L.R.B. 914 (N.L.R.B. 1970)

914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Calmos
of America , AFL-CIO. Case
August 18, 1970
14-CA-5381 letin board. Because they were still there a few
Combining Co. and United Textile Workers Oshins noted the men standing around the bul-
DECISION AND ORDER
BY MEMBERS MCCULLOCH, BROWN, AND JENKINS
On April 16, 1970, Trial Examiner Benjamin K.
Blackburn issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices, and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent'filed exceptions to
the Trial Examiner's Decision and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner 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 brief,
and the entire record in the case, and hereby
adopts the findings , conclusions, and recommenda-
tions of the Trial Examiner only to the extent con-
sistent herewith.
The Trial Examiner found that Respondent vio-
lated Section 8(a)(3) and (1) of the Act by
discharging Shop Steward Harts for his use of in-
subordinate and abusive language while processing
a grievance and rejected Respondent's contention
that this conduct was unprotected. We find merit in
the Respondent's exceptions.
The facts are not in substantial dispute. Harts was
discharged in the course of an altercation between
himself on the one hand and Plant Manager Oshins
and Plant Superintendent Zambrzuski on the other
concerning the appropriate classification and wage
rate due employee Gordon under the existing col-
lective-bargaining contract . After Harts raised this
matter with Zambrzuski , Oshins and Zambrzuski
decided that Gordon was properly rated Class B
and was not entitled to the higher pay rate . Zambr-
zuski so informed Gordon and Harts , but Harts dis-
agreed , and the three men walked to the bulletin
board to discuss the contract posted there.
' This conclusion is supported by Oshins' comment to the police when
they arrived that , "This is the man who refused to leave the premises after
being discharged."
minutes later , he asked Zambrzuski what was going
on and was told that they were still discussing Cor-
don's pay and the related contract problem . Oshins
told them to end the discussion and that if the deci-
sion he had given them was unsatisfactory to use
the grievance procedure and return to work, and
the conversation ended.
Moments after the men returned to their
machines, the bell rang for the afternoon break,
and Harts went to the shipping room and sat down.
Zambrzuski and Harts there resumed their discus-
sion , at Zambrzuski 's invitation , but continued it at
Hart 's machine because Harts thought he had left
the machine running . Voices were raised and from
his office Oshins heard shouting which he identified
as Harts ' alone . Oshins went to Harts' machine and
told Zambrzuski to break off the discussion as it
was causing a disturbance . Harts explained they
were discussing Gordon's raise, but Oshins told
Zambrzuski again to break off immediately. Harts
stated then, "You can't shut me up, I'll shout all I
want to ." Oshins insisted he be quiet, and Harts
responded, "I don't give a damn what you say, I'll
shout all I want to, and if you don't like it, tell me
to leave." Whereupon, Oshins replied, "All right,
you leave." Harts answered that if Oshins wanted
him to leave, Oshins would have to put him out.
Oshins stated he did not do that sort of thing, but if
he had to , he would call the police . Harts said he
did not "give a damn" what Oshins did, and Oshins
called the police.
Harts went into the shipping area after Oshins
had told Zambrzuski to punch Harts out. Zam-
bruski wrote on Harts' timecard ' that Harts was
discharged as of 2:30 p .m., and he returned and
told Harts he might as well leave as he was punched
out as of 2:30. The Trial Examiner found that the
discharge occurred at that time , and we agree.'
We agree with the Respondent that Harts ' refusal
to follow the direct order to stop shouting and his
abusive language constituted unprotected activity .2
Neither the direction to stop shouting nor Harts'
response thereto was related, other than tangen-
tially, to employee Gordon 's grievance. Oshins had
decided with Zambrzuski that Gordon was properly
rated , and Oshins specifically proposed, during the
discussion at the bulletin board and prior to the al-
tercation ,_ that Harts take the next step in the
grievance procedure if the decision given with
respect to the particular grievance was unsatisfacto-
ry. Harts not only refused to cease shouting, but
' In view of our decision herein , we find it unnecessary to consider the
other contentions of the parties including that relating to Harts' further
conduct after the discharge
184 NLRB No. 107
CALMOS COMBINING CO.
dared Oshins to discharge him. Thus, Harts' con-
tinued intransigence was not a part of the res gestae
of the grievance discussion .3 Rather , the order to
stop shouting was a reasonable and lawful order
that should have been obeyed , and his refusal to do
so was not related to Harts' protected processing of
the grievance.4
We are persuaded , on the basis of the foregoing
facts, that the activity for which Harts was
discharged was unprotected . Accordingly , we find
that the Respondent did not violate Section 8(a)(3)
or (1) of the Act in discharging him therefor on
November 18, 1969 , and we shall dismiss the com-
plaint herein.
ORDER
It is hereby ordered that the complaint herein be,
and it hereby is, dismissed in its entirety.
MEMBER BROWN , dissenting:
I disagree with the majority's dismissal of the
complaint . I would find , for the reasons stated by
the Trial Examiner , that the Respondent violated
Section 8 ( a)(3) and ( 1) by discharging Shop
Steward Harts for protected activity in the aggres-
sive processing of an employee's grievance.5 As I
view the facts, Harts' activity occurred in the
course of a discussion of a grievance as to which
first step discussion was continued on the instiga-
tion of Plant Supervisor Zambrzuski . Under these
circumstances , I cannot agree that the events in is-
sue, i.e., the loud voices resulting from high
feelings, may be viewed as a separate incident from
the grievance discussion itself . Accordingly , I agree
with the Trial Examiner that Harts was engaged in
protected activity and I would adopt the Trial Ex-
aminer 's Decision in its entirety.
3 Cf Thor Power Tool Company, 148 NLRB 1379, 1380, enfd 351 F 2d
584(C.A 7)
4 See Chevrolet, Division of General Motors Corporation, 161 NLRB 438,
441 (Member Brown concurring in the result ), Klate Holt Company, 161
NLRB 1606, 1609-10
In addition to those cases cited by the Trial Examiner, see Crown Cen-
tral Petroleum Corporation, 177 NLRB 322.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN , Trial Examiner: On
November 19, 1969 , United Textile Workers of
America, AFL-CIO, referred to herein as the
Charging Party or the Union , filed the charge in
this case against Calmos Combining Co., referred
to herein as Respondent . On January 2, 1970, the
General Counsel of the National Labor Relations
915
Board , by the Regional Director for Region 14 (St.
Louis , Missouri), issued a complaint . Respondent's
answer, duly filed, admitted certain allegations of
the complaint and denied others, including the al-
legation that it had committed unfair labor prac-
tices.
Pursuant to due notice, hearing was held before
me in St . Louis on February 26 and 27, 1970. The
issue litigated was whether Respondent discharged
Elmore Harts on November 18 for carrying out his
duties as the Union 's steward in Respondent 's plant
in a proper manner, thus violating Section 8(a)(3)
and (1) of the Act, or for cause . All parties ap-
peared and were given full opportunity to par-
ticipate , to adduce relevant evidence , to examine
and cross -examine witnesses , to argue orally, and to
file briefs . Upon the entire record , including briefs
filed by Respondent and the General Counsel, and
from my observation of the demeanor of the wit-
nesses while testifying under oath , I make the fol-
lowing:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent , a Missouri corporation , is engaged
in the business of gluing backing such as rubber to
fabrics, leather , and similar materials . During 1969
Respondent purchased and received at its plant in
St. Louis goods and materials valued at more than
$50,000 which were shipped directly to the plant
from suppliers outside Missouri. On the basis of
these admitted facts, I find that Respondent is en-
gaged in commerce within the meaning of Section
2(6) and ( 7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I
find that the Charging Party is a labor organization
within the meaning of Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICE
A. Facts
Respondent is the successor to a firm called
Columbia of St. Louis . Columbia closed in early
1967. Lawrence Oshins formed Respondent,
acquired Columbia's assets, and reopened under
the Calmos name with Columbia 's employees in
March 1967. The Charging Party represented
Columbia's employees before Columbia's demise. It
continued to represent them when they became
Respondent 's employees . Elmore Harts went to
work for Columbia in 1962. He was the Union's
steward when Columbia closed. He continued in
that capacity when Respondent reopened the busi-
ness . At the time of his discharge by Respondent on
427-835 0 - 74 - 59
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
November 18, 1969, he had been steward for some
3 or 4 years.
Because absentee ownership was proving ineffi-
cient , Oshins took over personal supervision of
Respondent in October 1968. In April 1969 he
hired Edward Zambrzuski as plant superintendent.
The contract in effect between Respondent and the
Charging Party in 1968 and 1969 contains a unit
work preservation section which reads:
Employees not included in the collective
bargaining unit shall perform no production
work. Supervisory employees shall serve in that
capacity only and they shall not perform any
work or operation at any time whatsoever
which is considered bargaining unit work, ex-
cept in demonstrating operations , testing or in-
specting equipment or instructing workmen, or
repairing or making adjustments on machines
with the operator of the machine present.
It also contains a four -step grievance and arbitra-
tion article which reads, in part:
A. The employee involved [in any grievance
or complaint ] and the steward shall attempt
settlement of the grievance with the plant
foreman.'
B. If not disposed of within four (4) working
days, the grievance shall be reduced to writing
by the union , signed by the employee involved
or employees involved, and then negotiated
between the shop committee and the plant su-
perintendent.'
It also contains a no-strikes or -lockouts article
which reads:
During the term of this contract, the union
agrees that it will not cause or permit a strike
of any kind and the company agrees that there
shall be no lockout.
The classification and wage schedules which are a
part of the contract read , in part:
Class A. Operators:
Operators capable of and who set up, run
and make all adjustments for production
operation of all machines and equipment used
in production by the company ...
Class B. Operators:
Can Operators: Operators capable of and
who set up , run and make adjustments for
production running of the can machines ...
General Machine Operators: Operators capa-
ble of and who set up, run and make adjust-
ments on either a spreader , make -up machines,
doubler or skin machine.
As of November 18, 1969 , the contract rate of pay
for a Class A operator with 12 months ' seniority
was $2 . 60 an hour . For a Class B operator with 12
months' seniority the rate was $2.55. There is no
provision in the contract for automatic progression
from Class B to Class A status at the end of a
period of service as a Class B operator.
Harts, a Class A operator , was a diligent steward,
particularly with respect to attempts to enforce the
work preservation section of the contract. He
frequently and insistently protested to Zambrzuski
that Zambrzuski was performing unit work,2 so
much so that Zambrzuski and Oshins concluded
that he was a nit-picker who interfered with
production and Zambrzuski formed the opinion
that Harts was deliberately trying to harass him. On
one occasion during the summer of 1969 Oshins,
provoked at Harts' continuing to press a grievance
orally even though Respondent had rendered its
first-step decision , ordered Harts to stop arguing
and get back to work . He pointed out to Harts that
the proper procedure under the contract, if he was
not satisfied with Respondent's decision , was to file
a written grievance . On another occasion , Zambr-
zuski moved the employees ' lockers from a
secluded spot in the rear of the plant to an area
near a large window in the front of the building so
that he could keep an eye on the men while they
were at their lockers . Harts demanded a curtain for
the window and a partition around the lockers.
Zambrzuski granted the curtain but denied the par-
tition . Harts said that he would take the men out on
strike if they did not get a partition.' The partition
was not erected . Harts did not take the men out on
strike. The grievance over the partition was not car-
ried to the second step of the grievance procedure.
Harts was not disciplined in any way for threatening
a wildcat strike.
On November 18, 1969, Respondent 's full com-
plement of eight in-plant bargaining unit employees
was at work. Shortly after work began at 8 a.m.,
Fred Gordon , a Class B can operator earning $2.55
an hour, told Harts he thought he was entitled to a
nickel raise under the contract . Harts told Zambr-
zuski . Zambrzuski said he would check it out and
let Harts and Gordon know . Zambrzuski consulted
Oshins . Between them they decided that , because
Gordon was not capable of operating all the
machinery in the plant, he was not entitled to Class
A status and the $2.60 rate provided in the con-
tract.
A few minutes before the regular 10-minute af-
ternoon break was scheduled to begin at 2:20 p.m.,
Zambrzuski told Gordon and Harts that Gordon
was not due a raise. Harts insisted he was and of-
' Respondent has no plant foreman as such Zambrzuski acts for Respon-
dent in both the first and second steps of the grievance procedure
2 What happened , who was right , and who was wrong in each of these
episodes are immaterial In each instance, Zambrzuski took the position
that what he was doing came within the exceptions listed in the contract
' I do not credit Harts ' denial that he made this statement
CALMOS COMBINING CO. 917
fered to show Zambrzuski the provision in the con-
tract which controlled . 4 Consequently , all three
men moved from Harts ' spreader machine to a bul-
letin board where a copy of the contract was
posted . As Harts and Zambrzuski were discussing
the issue , Oshins walked by on his way to the men's
room . When he came out shortly thereafter he
discovered they were still there . He asked Zambr-
zuski what was going on. Zambrzuski said that he
was trying to explain their decision on Gordon's
complaint . Oshins ordered Harts and Gordon back
to work . He told Harts that he should not carry on
a discussion on working time once Respondent
gave him its answer on a grievance , that the proper
way to proceed was to file a written grievance as
provided in the contract . 5 Harts and Gordon
returned to their machines . A moment or two later
the break bell rang.
Harts went into the shipping area and sat on a ta-
ble. Zambrzuski came by. He asked Harts if Harts
wanted to continue their discussion on breaktime.
Harts said he did. However, he thought that he
might have left his machine running , so he went
back to his machine to turn it off. Zambrzuski went
with him . They resumed their discussion at Harts'
machine . It soon degenerated into an argument
with raised voices . Harts spoke loudly enough that
Oshins, in the office some distance away, heard
him. Oshins went from his office to where Zambr-
zuski and Harts were arguing . He asked what they
were arguing about . Harts told him they were still
arguing about Gordon's raise . Oshins said he did
not want to hear any more about it and instructed
Zambrzuski to break off immediately , gesticulating
with his hands as he did so. Harts took umbrage at
Oshins' tone and manner. He told Oshins that
Oshins could not shut him up, he would shout all he
wanted to . Oshins insisted that he shut up. Harts
told Oshins that Oshins did not scare him, that he
would shout all he pleased , and that , if Oshins did
not like it , Oshins should tell him to leave. Oshins
told Harts to get out. Harts refused . He told Oshins
that, if Oshins wanted him out, Oshins would have
to put him out. Oshins said he would call the police
and put him out. Harts said he did not care what
Oshins did.
The three men separated . Oshins instructed
Zambrzuski to punch Harts out. Oshins went to the
office and phoned for the police . Zambrzuski got
Harts' timecard and wrote on it that Harts was
discharged as of 2 : 30 p.m . Harts went back to the
shipping area and lay down on the table . Zambr-
zuski came to Harts and told him that he might as
well leave since Zambrzuski had punched him out
as of 2 : 30. At that point the 2:30 p . m. end-of-break
bell rang . Harts went back to his machine and
started to work . About 5 minutes later two po-
licemen came into the plant . Oshins pointed out
Harts to them . They approached Harts and told him
to leave the plant . When he started to protest, they
told him that if he did not leave quietly they would
have to carry him out and charge him with disturb-
ing the peace . Harts started with them toward the
lockers, which are near the front door of the plant.
When the policemen came into the plant, most of
the other employees stopped work to watch what
was going on. Fred Gordon was working at a can
machine between Harts' spreader and the front
door . As Harts walked toward the lockers with the
policemen he waved his arm above his head in a
gesture susceptible of the interpretation that he was
summoning the other men to follow him . Gordon
said , "Cut off your machines , we are all going
out. "e
Harts went to his locker , got his things, and left
the plant . The other employees began putting on
their coats to follow him . Oshins protested . He told
them that they were bound by the no -strike clause
in the contract . He reminded some of favors he had
done for them . He pointed out that it would be il-
legal as well as immoral for them to walk out. An
employee asked Oshins whether they could hold a
meeting . Oshins gave his permission to hold it in
the building . An employee said they would rather
go outside and do it . Oshins agreed . Six of the
seven employees followed Harts and caught up with
him outside.'
Harts and another employee went to a nearby
street telephone booth . They called the Charging
Party's office and talked to Theresa Wieland, an of-
ficial of the Union . Miss Wieland told them to tell
the employees to go back to work. She told Harts
to come to the hall. Harts went to the hall. The six
employees who had left the plant after him
returned and went to work.
B. Analysis and Conclusions
Respondent relies on the fact that Harts created
a disturbance sufficiently serious to require it to
call the police to justify his discharge. It does not
rely on the fact that Harts attempted to lead the
other men out on a wildcat strike by signaling to
them as he left the plant since, obviously, as
' Although the record is not completely clear , I gather that Harts had
confused the provision for top pay in any particular job classification 12
months after hire with a provision that 12 months as a Class B operator au-
tomatically moved an operator into Class A. He pressed this interpretation
of the contract against Zambrzuski 's position that Gordon was not entitled
to Class A operator 's wages because he could not operate all the machinery
in the plant
"I do not credit Harts ' denial that Oshins mentioned filing a written
grievance about Gordon 's rate of pay at this time.
6 1 do not credit Harts ' denial that he waved his arm above his head. I do
not credit Gordon 's testimony that Harts said, "Cut off the machines and
let's go outside ." This finding is based on Oshms'testimony that Harts gave
a signal to the men to walk out and Gordon said , "Cut off your machines,
we are all going out "
' I credit Oshins ' testimony that Benny Lee Whalen never left the plant
over Whalen 's testimony that he got a step or two out the door and met the
other six men coming back . Both agree that Whalen went to lock the back
door of the plant, one of his regular duties, as the other six were leaving.
Whether he was in favor of joining the others , as Whalen 's testimony would
indicate , or opposed, as Oshins would have it, is immaterial
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidenced by Zambrzuski's marking his timecard
before the police arrived, he had already been
discharged by that time. The General Counsel, on
the other hand, sees this as primarily a pretext case.
He argues that Respondent was really motivated by
annoyance at Harts' insisting on discussing a
grievance and not by the manner in which he
responded when Oshins told him to stop. Respon-
dent made no bones about its attitude toward
Harts. For example, Oshins testified:
I think Mr. Harts was diligent in the manner
in which he was attempting to do his job as a
shop steward. Mr. Harts wasn't competent at
that job and I hadn't" complained to Mr.
Eckerle [another official of the Union] that he
was not competent. He was constantly creating
problems that would not be problems if they
were handled properly, and this is what we
referred to as the "nit-picking," so that while
we recognized the right and we observed the
fact that he was entitled to say things that he
was doing , the fact that he was doing things im-
properly creates havoc among the men's at-
titudes towards management . They seemed to
get the impression through his efforts that we
were taking something from them instead of
giving something to them. This hampering of
management , and not allowing it to manage is
what has been wrong with our plant.
Respondent 's evidence that it had put up with Harts
for a long time without discriminating against him
even though he was a source of trouble is uncon-
troverted. I credit it and rely on it to find that
Respondent 's stated reason for discharging Harts
was its real reason and not a pretext . Therefore,
whether Harts' discharge violated the Act must
hinge on whether what he did on November 18
transgressed the limits of conduct within which a
union steward may carry out his duties and still
remain under the Act's protection.
In Riviera Manufacturing Co., 167 NLRB 772, a
steward belligerently refused to follow instructions
to sweep around his work station and influenced
others to follow his example. His discharge was
held lawful.
In Stop & Shop, Inc., 161 NLRB 75, affd. 377
F.2d 59 (C.A. 1), a steward instructed employees
not to use a piece of equipment on the ground that
it was not safe even though a safety engineer had
declared it safe and adequate . One employee fol-
lowed his instructions to the point of being
discharged. Another followed the steward's instruc-
tions initially and only gave in when threatened
with discharge. The steward's discharge was held
lawful.
In Top Notch Manufacturing Company, Inc., 145
NLRB 429, a steward threatened that employees
' In its brief Respondent changes this word to " had," asserting , in a foot-
note , " Mr. Oshins stated ' had' as he was showing that the union representa-
tive had knowledge of this incompetence ." However, Respondent has not
moved to correct the transcript and I have no independent recollection of
might walk off the job if he was not granted an ap-
pointment with management in order to discuss
grievances. This and other conduct was cited by the
respondent as insubordination justifying the
steward 's discharge . The steward was a member of
a dissident faction in a local union which was trying
to obtain real representation for the employees in
the face of a long sweetheart relationship between
respondent and the union . His discharge was held
unlawful.
In I. Oscherwitz and Sons, 130 NLRB 1078, a
steward called the respondent's president a "liar"
in the course of a heated exchange during a meet-
ing to discuss a grievance. The Trial Examiner
ruled that the respondent's reliance on this conduct
was a pretext masking its real motive of getting rid
of a too zealous steward and that her discharge was
unlawful. The Board reversed him, but only on the
ground of deferring to arbitration. It did not reach
the question of the respondent's motive for
discharging the steward and, thus, did not pass on
whether the steward's conduct was cause for
discharge.
Here, Harts was discharged for arguing loudly
about a grievance at the first step of the grievance
procedure after management had rendered its deci-
sion and told him to file a written grievance if he
wanted to carry the matter to the second step.
However, the only thing damaged by his conduct
was Oshins ' dignity . Part of the Zambrzuski-Harts
discussion about Gordon 's wages took place on
working time in front of the bulletin board. But
Harts and Gordon went back to work immediately
when Oshins ordered them to, and Oshins himself
admits that the discussion at this point was not
overly loud or offensive to him. It was only when
the discussion was resumed a few minutes later at
Harts' machine that Oshins became provoked. But
this phase occurred only because Zambrzuski in-
vited Harts to resume the discussion and took place
all on breaktime so that there was no interruption
to production.
The crucial question is just when Oshins
discharged Harts . Respondent contends that Oshins
intended only a disciplinary layoff when he first
told Harts to get out and changed to discharge
when Harts forced him to call the police to get
Harts out of the plant. The only testimony in sup-
port of that position is Oshins' statement as to his
subjective state of mind . I do not credit it. It is
clearly an afterthought to bolster Respondent's
case. I rely solely on the undisputed objective facts
as to what Oshins said to Harts and Harts said to
Oshins in their quarrel and the undisputed fact that
Oshins told Zambrzuski to punch Harts out before
Harts wandered back to the table in the shipping
department in finding that Harts was discharged
whether Oshins said "had" or "hadn't." Moreover, Oshins 'use of -hadn't"
would imply forbearance on Respondent 's part in its dealings with Harts, a
point even more favorable to its position in this case.
CALMOS COMBINING CO.
when Oshins first told him to get out. Therefore,
Harts was discharged , not for refusing to leave the
plant , but for insisting on continuing a discussion
about a grievance in a loud voice after Oshins had
told him to shut up. He did not interfere with
production , either his own or that of other em-
ployees, for the discussion took place on a break.
He did not adamantly refuse to carry out an order
relating to his work . Thus he was not as
blameworthy as the stewards in Riviera and Stop &
Shop. The act for which he was discharged strikes
me as less reprehensible , considering the emotion
engendered by the debate Zambrzuski and he were
having when Oshins walked up, than calling a com-
pany president a liar to his face, an act which
Oscherwitz at least suggests may not place a
steward zealously guarding the supposed rights of
his fellow employees beyond the protection of the
Act. What Harts was discharged for is more closely
akin to the acts of the blameless steward in Top
Notch, although once again , of course, that case
cannot be said to be dispositive of this one. There-
fore, I find that Harts was discharged by Respon-
dent for insisting on carrying out his duties as a
steward in a manner he thought proper and
Respondent deemed improper, that he did not
thereby give Respondent cause to discharge him for
insubordination, and that Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by discharging him.
Upon the foregoing findings of fact, and upon the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Calmos Combining Co. is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. United Textile Workers of America,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discharging Elmore Harts on November
18, 1969 , because of the manner in which he car-
ried out his duties as a steward for the Charging
Party, Respondent has engaged in an unfair labor
practice within the meaning of Section 8(a)(3) and
(1) of the Act.
919
4. The aforesaid unfair labor practice is an un-
fair labor practice affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has violated Sec-
tion 8(a)(3) and ( 1) of the Act by discharging El-
more Harts, I will recommend first that it cease and
desist from engaging in that or like or related activi-
ties . I have found that Harts gestured as he was
walking out of the plant in a manner susceptible of
the interpretation that he was summoning the other
employees to follow him. However, I have also
found that Fred Gordon spoke in the same vein,
thus making himself equally if not more guilty than
Harts of inciting a strike in violation of the con-
tract. Gordon is still employed by Respondent and
has succeeded Harts as the Union 's steward in the
plant . He was even called as a witness by Respon-
dent . Moreover , the interruption of production
which took place as Harts was being escorted out of
the plant by the police and thereafter was extreme-
ly brief, and the major part of it occurred with
Respondent 's permission . For these reasons I find
that Harts' conduct in failing to leave the plant until
the police came and his conduct as he walked out
is, insofar as the protection of the Act is concerned,
like his conduct already considered in insisting on a
right to argue loudly about a grievance when
Oshins told him to shut up. It was not so flagrant as
to make him unfit for further employment by
Respondent , thus precluding him from the remedy
of reinstatement and backpay customary in cases of
this sort . Therefore , I will also recommend that
Respondent offer him immediate and full reinstate-
ment to his former or substantially equivalent posi-
tion without prejudice to any seniority or other
rights and privileges previously enjoyed and make
him whole for any loss of earnings he may have suf-
fered as a result of the discrimination against him
by paying to him a sum of money equal to that
which he normally would have earned as wages
from November 18, 1969, until the date of Respon-
dent 's offer of reinstatement , less net earnings dur-
ing such period, with backpay and interest thereon
to be computed in the manner prescribed in &F. W.
Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716.
[Recommended Order omitted from publication.]