J. P. Stevens & Co., Inc.

National Labor Relations Board - Board Decisions

Mar 12, 1970

181 N.L.R.B. 666 (N.L.R.B. 1970)

666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. P. Stevens & Co., Inc. and Textile Workers Union
of America , AFL-CIO. Cases I I-CA-3834 and
1 I-CA-3861
March 12, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On October 30, 1969, Trial Examiner Laurence
A. Knapp issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner also found that the Respondent had
not engaged in certain other unfair labor practices
alleged in the complaint and recommended that
these allegations be dismissed. Thereafter, the
Respondent and the Charging Party filed exceptions
to the Trial Examiner's Decision and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National 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 briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as modified herein.'
The Trial Examiner concluded that the
Respondent's discharge of Mrs. Betty S. Allen was
discriminatorily motivated in violation of Section
8(a)(3) and (1) of the Act. We find merit in the
Respondent's exception to this finding.
Mrs. Allen worked continuously as a weaver from
July 1962 until August 21, 1968.2 When she reported
In its exceptions , the Charging Party requested the Board to extend the
scope of the Order recommended by the Trial Examiner so as to include
all of the Respondent 's plants in North Carolina, South Carolina, and
Georgia We do not think that the circumstances of this case justify an
extension of the Order beyond the plants located in the Roanoke Rapids
area, as recommended by the Trial Examiner In our view , that Order is
justified because it appears that some of the Respondent ' s unlawful
conduct occurred in the context of activities at all of its Roanoke Rapids
plants, or in all likelihood became known to the employees in such plants
But in view of the nature of the violations herein found , we do not think
that the affirmative provisioi s of our Order should be extended beyond the
Roanoke Rapids'area
The Trial Examiner , in the "Recommended Order " section of his
Decision , recommended , inter aka , that the "Notice to Employees" be
lead to all of the Respondent 's employees in each of its Roanoke Rapids,
North Carolina , plants For the reasons set forth in the J P Stevens III
and J P Stevens IV cases, we have modified the Recommended Order in
this proceeding to provide for the reading of the notice only in the plants
where the unfair labor practices in this case occurred
for work at 4 p.m. on August 21, some looms on
one of the three lines of looms that she tended were
being cleaned by a process which puts the two being
cleaned and some adjoining ones out of operation
during the cleaning period. According to her own
testimony, Mrs. Allen became provoked over the
interruption caused by the loom cleaning because it
affected her production and consequent wages. The
Trial Examiner found that she may well have
evidenced this irritation by her expressions and by
some unwarranted degree of absence from, or
inattention to, those of her looms which were
operable. At about 6 p.m., assistant overseer
William G. Freuler, Jr., one of Mrs. Allen's
immediate supervisors, approached her at her job
with the intention of discussing her behavior and
sending her home unless she stayed on her job.
Freuler told Mrs. Allen not to be so upset - that
the loom cleaning would soon be completed. In
response, Allen told him to go off and leave her
alone. According to Mrs. Allen, Freuler was
angered by her remark, and coming round a post
separating them, bumped her into a loom, although
she testified that she could not say that he did so
intentionally. She responded by clutching him by the
throat with both hands. Freuler in turn grabbed her
hands and in dislodging them from his throat
twisted them. He then told her that if she did not
like it there she would have to go home. She
answered by telling Freuler that if he wanted her to
go he would have to send her home. This exchange
was repeated. Whereupon, Freuler, obviously
annoyed by her attitude, told her she was fired. At
this point Freuler started toward Mrs. Allen, but
although he did not touch her and Mrs. Allen
admitted this, she again grabbed him by the throat.
She claimed though that in breaking her grip,
Freuler struck her arm and again told her she was
fired.
Mrs. Allen did not proceed to leave the plant, but
instead went to her husband's place of work in the
plant and told him that Freuler had attacked her
and fired her. According to Mrs. Allen's testimony,
when Freuler followed her to her husband's work
station, Freuler told him that he also was fired,
whereupon her husband attacked Freuler. A short
time later, Superintendent James Smith, who was
informed of the trouble by Freuler, arrived on the
scene According to Mrs. Allen, on approaching her
and her husband he said, "You two union birds
come to the office," whereupon her husband
likewise attacked Smith. The Allens were then led
from the plant by security guards.
The Trial Examiner found, essentially on the
testimony of Mrs. Allen which he credited, that
Mrs. Allen was discharged by Freuler as a result of
a plan to discharge employees engaging in union
activities and not, as contended by the Respondent,
because of Mrs. Allen's assault on her foreman. The
All dates hereinafter are in 1968
181 NLRB No. 97
J. P. STEVENS & CO, - INC 667
Trial Examiner rejected the ground tendered by the
Respondent as a mere pretext.
The Trial Examiner does not question that an
employee's assault on a foreman is a justified
ground for discharge But if we understand his
reference to pretextual grounds for discriminatory
action, the Trial Examiner in fact is saying that but
for Mrs. Allen's union activities the Respondent
would not have discharged her for her admitted
violent attack on her foreman. The record is devoid
of any evidence of comparable situations where
conduct of the kind involved herein was not the
subject of disciplinary action by the Respondent.
We may agree with the Trial Examiner that the
Respondent's history of opposition to union
organization in its plants and its practice of ferreting
out union supporters made it aware that Mrs. Allen
was or had been a union supporter and that the
history of the Respondent's past transgressions calls
for a careful examination of the record and of the
evidence bearing on the reasons assigned for the
discharge of employees known to be or to have been
union supporters.3 However, it is quite clear that the
burden rests on the General Counsel to show that an
employee was discharged for union activity.' The
fact that there has been a history of unlawful
hostility to unionization does not serve alone as a
substitute for proof that the action taken in the
present instance was discriminatorily motivated, nor
does it serve to shift the burden to the Respondent
to establish its innocence. To conclude, as does the
Trial Examiner, that because the Respondent has
repeatedly violated the Act, it "may be taken for
granted" that Mrs. Allen was a "marked person," is
to say that its employees who have engaged in union
activities with its knowledge are thereafter forever
immune from the imposition of any disciplinary
action by the Respondent. This is a conclusion that
we cannot accept.' The Act's grant of rights to
employees to engage - in organizing activities, to
belong to a union, and to engage in collective
bargaining was not intended to deprive management
of its right to manage its business and to maintain
production and discipline .6
It is evident to us that Freuler's confrontation
with Mrs. Allen occurred while Freuler was
exercising his authority to maintain production and
discipline, and that the conduct of Mrs Allen in
'N L R B v Dan River Mills, Incorporated , Alabama Division, 274
F 2d 381, enfg in part 121 NLRB 645
'J P Stevens & Co. Inc. 163 NLRB 217, 218, enfd 388 F 2d 896
(C A 2)
'See for example our findings in J P Stevens & Co , Inc , 157 NLRB
869, enfd 380 F 2d 292 (C A 2), J P Stevens & Co, Inc , 163 NLRB
217, enfd 388 F 2d 896 (C A 2), J P Stevens & Co , Inc , 167 NLRB
No 37, enfd 406 F 2d 1017 (CA 4), J P Stevens & Co, Inc, 167
NLRB No 38, enfd 406 F 2d 1017 (C A 4), and J P Stevens & Co,
Inc (Dublin- Nathaniel Plants ), 171 NLRB No 163, enfd 417 F 2d 533
(C A 5), in which we did not find that all the alleged discriminatory
discharges were unlawful
'Mitchell Transport , Inc , 152 NLRB 122, 123, enfd sub nom Hawkins
v N L R B , 358 F 2d 281 (C A 7), Sutherland Lumber Company, Inc,
176 NLRB No 143, TXD
assaulting Freuler was a clear act of interference
with the exercise of that authority.
One piece of evidence that the Trial Examiner
relied upon as proving the existence of a plan to
weed out union supporters was Superintendent
Smith's remark before he was assaulted by Mrs.
Allen's husband - "You two union birds come to
the office " Although the remark was a disparaging
one, it could well have been intended as nothing
more. At most it reflected Smith' s antiunion
animus, but this, without more is not an unfair
labor practice.' In any event, it is clear, as the Trial
Examiner found, that Mrs. Allen was discharged by
Freuler before Smith ever came on the scene.
A discharge which is prompted by a serious act of
violence can hardly be conceived as the product of a
long-harboured plan to get rid of union supporters
Even if we assume that the Respondent was not
averse to being rid of Mrs Allen and all other
employees who supported the Union, the manner in
which Mrs. Allen's discharge was accomplished
suggests that it was a spontaneous reaction to her
violent misconduct. Discharges for less grievous
conduct have been found justified, even though they
were made by employers otherwise engaged in
antiunion activities 6
We have examined the facts dealing with Mrs.
Allen's discharge very carefully and we find, on the
record as a whole, that she was discharged for cause
and not because of her union activities. Accordingly,
we shall order that the complaint be dismissed with
respect to the allegation that the Respondent
discriminatorily discharged Mrs. Allen.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and hereby orders that the
Respondent, J. P. Stevens & Co., Inc., Roanoke
Rapids, North Carolina, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as so modified:
1. Delete all portions of the Recommended Order
and attached Appendix which relate to employee
Betty S. Allen.
2. Substitute in paragraph 2(g) the phrase "in
each of the plants where the unfair labor practices
found herein have occurred," for the phrase "in
each of the said plants."
3. Substitute the following for the last paragraph
of the Recommended Order:
'N L R B v McGahey, d/b/a Columbus Marble Works, 233 F 2d 406,
409, enfg in part I I I NLRB 1162
'Talladega Cotton Factory, Inc , 106 NLRB 295, 298-299, enfd 213
F2d208(CA 5)
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"IT IS HEREBY FURTHER ORDERED that the
complaint herein be, and it hereby is, dismissed
insofar as it alleges that the Respondent violated the
Act by discharging Mrs. Betty S. Allen, by allegedly
warning employees not to talk to union organizers,
and by allegedly threatening to discharge employees
who signed union authorization cards."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LAURENCE A KNAPP, Trial Examiner: I heard these
cases, consolidated for purposes of hearing and decision,
at Roanoke Rapids, North Carolina, on May 27 and June
10 and 11, 1969, following pretrial procedures in
compliance with the National Labor Relations Act, as
amended (herein called "the Act").'
The questions presented are whether Respondent (I)
discriminatorily discharged one employee in August and
another in November 1968, and (2) made certain coercive
statements to employees in November 1968, in violation
of the Act
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT; THE LABOR
ORGANIZATION INVOLVED
Respondent is engaged in the manufacture of textile
products and associated operations at many plants in the
United States The plants involved herein are located at
Roanoke Rapids, North Carolina At these plants the
complaint alleges, Respondent admits, and I find that
during the calendar year preceding issuance of the
complaint Respondent manufactured , sold, and shipped to
points outside the State of North Carolina products
valued in excess of $ 100,000 . Respondent is engaged in
commerce and in operations affecting commerce withip
the meaning of Section 2(6) and (7) of the Act.
The Charging Party, Textile Workers Union of
America, AFL-CIO (herein sometimes called "the
Union ") is a labor organization within the meaning of
Section 2(5) of the Act
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Pertinent Background Concerning Respondent's
Prior Violations of the Act
Respondent's record of persistent, grave, and frequently
blatant violations of the Act extending over the period
1963 to the near-present is established by a lengthy series
of decisions of the Board and of the reviewing courts.
Since I consider that Respondent's past illegal conduct
should be taken into account in determining certain of the
issues presented in this case, I will at the outset undertake
a review of the prior, and as it will appear, interrelated
cases.
In 1963 the Union launched an organizing drive among
the employees at many of Respondent's plants, including
the plants involved in this case. In response to this
The underlying charges were filed on February 20, April 1 1, and March
25, 1969 The complaint , containing an order of consolidation was issued
on April 30, and amended on May 14 , 1969 Respondent denies all
allegations of unfair labor practices stated in the complaint as amended
campaign, the Board found in the first Stevens case (157
NLRB 869) that Respondent sought to defeat the union
movement at some 20 of its plants by massive threats of
reprisal, promises of benefit, coercive interrogation and
surveillance, and like unlawful acts, and by discharging
some 71 employees because of their union or other
protected activity under the guise of one pretext or
another Some 17 of these discharges took place at one or
another of the Roanoke Rapids area plants. Upon review
of this Board decision, the Court of Appeals for the
Second Circuit affirmed (380 F.2d at 301) the Board's
conclusion that Respondent.
. through its plant superintendents, acting in
collaboration, initiated and pursued a pattern of
conduct the purpose of which was to crush the union
movement With scant regard for the means employed
other than their effectiveness, it interfered with,
restrained and coerced its employees in the exercise of
their rights under the Act, flagrantly, cynically, and
unlawfully.
In the second Stevens case (163 NLRB 217), involving
some eight of Respondent's plants, the Board found that
in the months following the events of the first case
Respondent continued on its path of repressive threats,
promises of benefits, coercive interrogation and the like,
as well as by discharging some 19 employees because of
their union activities and/or because they testified
adversely to Respondent. Two of these discharges were at
one of Respondent's Roanoke Rapids plants In reviewing
the Board's decision in this second case the Second Circuit
Court of Appeals approved (388 F.2d at 903) the
following conclusion of the Trial Examiner concurred in
by the Board:
The record in the 1965 hearing reflects the continued,
systematic determination of this employer as revealed
by the record of the 1964 hearing, to destroy the union
root and branch by discharging its most active members
on any pretext which might come to hand, or could be
invented, by threatening to discharge others unless they
came to management and renounced the Union, and by
provoking the resignation of still others from
Respondent's employment No other conclusion can be
drawn than that Respondent has largely succeeded in its
purpose.
As the Union's campaign continued, so did
Respondent's countercampaign of coercion, as found in
ensuing Board decisions In a third Stevens case (167
NLRB No 37) involving the period April 1965 - April
1966, the Board found Respondent guilty at various of its
plants of (1) further threats of reprisals, promises of
benefits, surveillance, coercive interrogation, and the like,
and of (2) further discharges of some 17 employees, and
the discriminatory treatment of others, because of their
union activities and/or because they had testified
adversely to Respondent Five of these discriminatory
discharges took place at Roanoke Rapids plants
In this third case, the Board, in considering appropriate
remedies, referred to Respondent's "record of extensive
and flagrant unfair practices" and quoted with approval
the following observations of the late Trial Examiner
Boyd Leedom:
. . I have the inescapable but independently reached
conviction, . . from having heard innumerable
witnesses at the trial, and having carefully digested and
reviewed their testimony from the typewritten
transcript, that many of the witnesses called by
J. P. STEVENS & CO., INC. 669
Respondent testified as they did pursuant to a policy,
made at a higher level of management than theirs, to
defeat this Union ' s organizational effort at the cost, if
necessary , of committing unfair labor practices and then
denying the unlawful acts of the process .. .
In the fourth Stevens case ( 167 NLRB No 38) the
Board found that in 1966 Respondent had discharged
three employees at three different plants because of their
union activities , " in furtherance of the overall
companywide campaign to weed out every last supporter
of the Union ." (TXD) One of these discharges took place
at one of the Roanoke Rapids plants ( Delta IV) involved
in this case
The Board 's findings and orders in the third and fourth
cases were reviewed by the Court of Appeals for the
Fourth Circuit which , in an opinion issued on December
30, 1968, sustained the Board ' s findings of violation with
the exception of one of the many discriminatory
discharges and of but one of the many coercive acts found
by the Board . And in approving various unusual
provisions of the Board ' s order concerning remedial
notices to be given by Respondent to its employees, the
opinion of Judge Butzner , speaking for a majority of the
court , refers (70 LRRM 2104, at 2108) to the
continuation in these cases of the violations committed by
Respondent in the earlier two, and to:
The extended period of time during which the
Company has persistently violated the Act, the varied
forms which the violations have taken, and the fact that
the company has discriminated against more than 100
employees in about half its plants in North Carolina
and South Carolina. .
The fifth Stevens case ( 171 NLRB No. 163) involved
an effort which the Union began in 1967 to organize
employees at the Respondent's plants in Dublin , Georgia.
Here as in the previous cases the Board found that
Respondent immediately countered with its established
pattern of unlawful activity, i.e., coercive acts (such as
surveillance of union meetings, interrogation of employees
concerning employees ' union activities, and threats of
plant shut -down and other loss of employment ), and the
discriminatory discharge , under the guise of pretexts, of
four employees prominent in the union organizational
movement. On October 3, 1969, the Fifth Circuit Court of
Appeals approved the Board ' s findings and enforced its
order in this case.
The sixth Stevens decision ( 177 NLRB No. 120) arose
as a result of a drive which the Union initiated in June
1967 to organize the employees at Respondent ' s Black
Hawk warehouse located in Greenville , South Carolina.
The Board found that as part of a plan to defeat the
Union in an election ordered by the Board , Respondent
deliberately changed its methods of doing business at this
warehouse in order to provide it with a pretext for laying
off some 17 employees whom it considered were union
supporters , in line with Respondent ' s "continuing policy
. . . to frustrate the organization desires of Stevens'
employees wherever located."
In treating with the evidence in this case , I consider
various aspects of Respondent ' s past conduct as especially
worthy of consideration in relation to the issues of
discriminatory discharge presented in this case, and, in
particular , the following features of Respondent's rather
uniform pattern of conduct as depicted in the prior
decisions:
a. Its blatant antipathy to and corresponding purpose to
crush the union movement;
b Its various unlawful methods of ascertaining the
identity of union supporters among its employees,
c. Its common practice to discharge union supporters,
once their identity as such was ascertained or suspected,
under the guise of pretexts;
d Its use of and dependence on ordinary plant
supervisors to ferret out union supporters and to find
pretexts for their discharge; and
e Its previous discharges of many employees at its
Roanoke Rapids plants by means of the foregoing illegal
methods.
B. The Alleged Discriminatory Discharges
I Mrs. Betty Allen
Mrs Allen was continuously employed as a weaver in
the No. 2 weaveroom of the Rosemary plant, one of
Respondent 's several Roanoke Rapids plants, from July
1962 until August 21, 1968 (During some portions of this
period several "Aliens" were employed in the No. 2
weaveroom These included , in addition to Betty Allen,
her husband James, James' brothers Eugene and Pete
(Leo), and Catherine Allen, Pete's wife .) In connection
with the Union's organizational activity at the Roanoke
Rapids plants , Betty Allen signed union cards, was present
on one or another occasion at the local union hall, and
was frequently at the home of one Maurine Hedgepeth,
another worker at the Rosemary plant whom the Board
found in the fourth Stevens case was discharged for her
support of the Union and because she had testified
adversely to the Respondent in the first Stevens case.
Mrs Allen's immediate supervisors were William G.
Freuler, Jr., assistant overseer , and Bill Robinson , general
overseer , of the No 2 weaveroom . Bill Robinson has a
brother, Robert , a former assistant supervisor in the No. 3
weaveroom of the Rosemary plant . Robert Robinson
testified that from about the fall of 1964 until his
discharge in March 1966 he and other supervisors in his
weaveroom were required to turn in to their superior, the
general overseer, weekly lists in which, using their best
judgment , they classified employees working under them
in one of three categories respecting the Union , i e., "for",
"against", or "unknown "; and that General Manager
Fuller held monthly meetings of supervisors at which the
latter gave Fuller their estimates of the total employees in
these categories Robinson further testified that in March
1965 he was told by his superior , the general overseer of
weaveroom No. 3, to watch a particular employee because
she was working for the Union and to find some pretext
for issuance of a reprimand to her . Respondent did not
seek to controvert the above testimony and I credit it.
Robert Robinson further testified that in August 1967,
after he had left Respondent ' s employ, he had a
conversation with brother Bill, the general overseer of
Betty Allen's weaveroom , in which he asked Bill why he
had not rehired Catherine Allen (see supra ) who had
previously quit . According to Robert , Bill, referring to all
the Aliens, described them as working for the Union, and
said that Catherine was "number one," and that he was
rid of her and would get rid of the rest of them later on.
In the course of his direct testimony as a witness for the
General Counsel Robert Robinson further testified that he
informed brother Bill that he had given a Board agent an
affidavit incriminating Bill; that as a result of this
conversation he obtained a copy of his statement from
Board sources which he showed to Bill ; that Bill told him
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he (Robert ) could not go through it, that to do so
menaced Bill's job at Stevens and the future of both men
in the textile industry ; that as a result he told Bill he
would not testify and would retract what he had said in
the statement adverse to Bill, that he and Bill jointly
prepared a retraction letter (G. C. Exh. 4) which was sent
to the Board ' s Regional Office, and that in a later
conference with Mr Butler , counsel for the General
Counsel , he informed Mr. Butler that he had submitted
the retraction letter because of what he was up against
and that his original affidavit (not in evidence ) was true.
In his testimony as a witness for Respondent, Bill
Robinson denied telling his brother that all the Aliens
were for the Union , stated that he had never heard of
Betty Allen or her husband as having been engaged in
union activities of any kind, and asserted that if they had
been for the Union they would have been outspoken and
have "worked for it day and night" and "wouldn't have
beat around the bush about it " On cross -examination, he
denied that he sought to find out what employees were
union supporters and, while denying that he knew who
were for or against the union , stated that he might have
an "opinion" on the subject and, that in his opinion, Betty
and James Allen were not for the union and never had
been He further testified that some employees had told
their supervisors , but not him , that they were union
supporters , but that none of the supervisors under him had
relayed such reports to him or identified union supporters
to him. With respect to the retraction letter, the essence of
his testimony is that prior to their first meeting his
brother had phoned him several times from Statesville
respecting visitations made upon him by Board agents,
and that in one of the conversations Robert informed him
he had given to a Board agent a statement which was not
true - that he was mad at the Stevens company and at
Bill - and which he wanted to retract ; that he saw
Robert in Statesville on several occasions thereafter with
the following results: ( 1) at the first meeting Robert could
not remember what incorrect statements were contained in
his affidavit and agreed to obtain a copy from Board
sources, (2) at the second meeting Robert, having received
a copy of the affidavit, pointed out what parts of the
affidavit were untrue and wrote up the retraction letter,
and (3 ) at the third encounter later in Statesville his
brother told him that at the time he had given his original
affidavit he was so drunk he did not know what he had
said to the Board representative and gave as an additional
reason for wanting to retract the fact that some Aliens
had come to work where he was then working and were
misconducting themselves in various ways and for this
reason he was quitting his job.
I credit Robert Robinson ' s testimony over that of
overseer Bill Robinson and find that in August 1967 the
latter declared that the Aliens were union supporters and
that ways would be found to get rid of them on this
account In observing each brother on the stand I was
more favorably impressed , demeanorwise, by Robert than
by Bill , and I find some portions of Bill 's testimony, e g.,
that if Betty Allen had been for the Union she would have
so exposed herself fully and freely , as incredible in the
light of Respondent ' s practice of retaliation against
identified union supporters Moreover , the statements
attributed to Bill are fully consistent with the
Respondent ' s well-established policy of eliminating union
adherents and with its standard method of doing so, i e ,
pretexts seized upon by the employees' supervisors. In
addition, blood is thicker than water and for this reason I
believe that , absent countervailing circumstances as is the
case here, Robert would not give testimony incriminating
his brother unless it were true.
I turn now to the evidence concerning the event
immediately surrounding Mrs Allen's termination Mrs.
Allen tended three lines of looms. When she came to work
at 4 p m. on August 21 some looms on one of her lines
were being cleaned by a process which puts the two being
cleaned (and two or three adjoining ones) out of operation
during the cleaning period. This situation still prevailed
when the more crucial events occurring about 6 p.m took
place During this period Mrs. Allen grew provoked over
the interruption caused by the loom-cleaning (because, she
said, being on a piecework basis, she was losing gainful
production) and may well have evidenced this irritation by
her expressions and by some unwarranted degree of
absence from or other inattention to those of her looms as
were operable, as her immediate supervisor, Freuler,
testified was the case Freuler further testified that for this
reason he was going to send Mrs. Allen home unless she
stayed on her job and that, as I read the record, this is
what he intended discussing with her when he approached
her about 6 p m. Plainly, then, both Mrs Allen and
Freuler were in provoked states of mind when they
actually met.
On the basis of both Mrs. Allen's and Freuler's
testimony I find that about 6 p.m. Freuler came up to
Mrs. Allen at her job and told her not to be so mad (or
upset) - that the loom cleaning would soon be
completed, and that in response she told him to go off and
leave her alone. Combining Mrs Allen's testimony on
direct and cross-examination, her version of events from
then on is that. Freuler grew angry at her remark, came
around a post separating them, and bumped her forcibly
into a loom, so hard as to bruise her hip. She responded
by clutching him by the throat with both hands, which he
in turn grabbed and in dislodging them twisted them so as
to leave red marks (clearly evident in a photograph in
evidence, G C. Exh 3b, taken a couple hours later)
Freuler then told her that if she did not like it there she
would have to go home. She replied by explaining where
she had been when absent from her job and told Freuler if
he wanted her to go he would have to send her home
Freuler again told her she would have to go home if she
did not like it there and she repeated that if he wanted to
send her home he would have to do so. Freuler then told
her "By God, you are fired" and then, with Freuler's face
"real red and mad" and with him starting toward her she
grabbed him by the throat again, he twisted her by the
arms and struck her across her upper left arm, and again
told her she was fired. She then went to her husband's
place of work in the same room, where he was a loom
fixer, and told him how Freuler had attacked her and had
said she was fired. Freuler then approached the two Aliens
and, with his arm outstretched, told her husband he was
fired too, whereupon her husband administered a beating
to Freuler Somewhat later, weaving superintendent James
Smith arrived on the scene and in approaching the two
Aliens said "You two union birds come to the office"
whereupon her husband likewise administered a beating to
Smith The Aliens were then escorted from the plant by
security guards.
James Allen, Betty's husband, corroborated her
testimony in the following respects: when his wife joined
him following her scuffle with Freuler, she told him that
Freuler had discharged her on the spot and her arms and
shoulder bore red spots; (2) when Freuler came up to
them Freuler, jerking off his eyeglasses, told him "You're
fired too, what are you going to do about it?", and (3)
J. P. STEVENS & CO., INC. 671
when Superintendent Smith later approached him and his
wife Smith said "You two union birds come on out to the
office."
Freuler's version of the events following the initial
exchange of remarks between him and Mrs. Allen at her
work station about 6 p m. is as follows: When she told
him to leave her alone he said he could not do that -
that she had to stay on her job or he would send her
home. She said he would have to send her home and he in
turn told her to go home and return the next day when he
would see her and they would talk the matter over (On
cross-examination, Freuler said he told Mrs. Allen to
return the next morning to talk to the overseer.) She then
grabbed him by the throat, he pulled her hands away, and
she went to join her husband He followed her to this
location where he put a hand on Mr. Allen's shoulder and
asked him to calm Mrs Allen down Thereupon Allen hit
him, called him a dirty name and threatened to kill him,
and continued to hit him Freuler denied that he knocked
Mrs. Allen into a loom, asserted that their first physical
contact was when she grabbed him by the throat, denied
that he told her she was fired, and testified that he lacked
authority to discharge, a decision which he testified would
have been one for the overseer and plant manager to
make. In reporting the incident that evening to overseer
Bill Robinson , he then recommended to Robinson that
Mrs. Allen be discharged for assaulting him. He repeated
this recommendation the next day to Robinson, who
concurred.'
Weaving Superintendent Smith testified that Freuler
notified him by telephone at his home about 6 15 p.m. on
August 21 that there had been trouble at the plant, i.e ,
that James Allen had hit him; that he went to the plant
where Freuler told him about the assault on him by James
Allen and also informed him, without mentioning 'any
assault by Mrs Allen, that he had had "trouble" with her,
that he approached the Aliens with the intention of asking
them to come to his office to talk but only managed to
call Allen by name when Allen assaulted him; and that
thereupon he instructed plant security guards to get Allen
and his tools and send him home. He denied that when he
approached the Aliens he told him "You two union birds
come to the office."
Respondent's witness, Herbert Ellis, a loo:.i fixer in
Mrs Allen's weaveroom, testified that he had a clear view
of and witnessed the entire altercation between Mrs Allen
and Freuler from a smoking booth some 20 feet away;
that Freuler did not bump Mrs. Allen into a loom, that
their first physical contact consisted of Mrs. Allen's
grabbing Freuler by the throat, that Freuler pulled Mrs
Allen's hands away whereupon she left the scene; and that
he did not observe Freuler strike Mrs. Allen on the arm
With respect to this testimony, the General Counsel's
rebuttal witness Sikes, a doffer in this weaveroom,
testified that he witnessed part of the scuffle between Mrs.
Allen and Freuler, which took place at the south end of
the weaveroom; that there are two smoking booths in the
room, one at the south end about 10 feet from where Mrs.
Allen and Freuler were and one toward the north about
100 or more feet away; and that about 4 minutes after the
Allen-Freuler encounter he proceeded to the north where
'Robinson talked with Freuler and Smith during the evening of August
21 and with Freuler again and with Beeks , the plant manager, on the
morning of August 22 According to him he then recommended and Beeks
agreed that Mrs Allen should be discharged , and a corresponding
discharge paper, charging Mrs Allen with assaulting a supervisor, was
signed by Robinson and Beeks that day and sent to the personnel office
he saw Ellis in that smoking booth, which, he testified was
the one Ellis used '
On the foregoing and other evidence and circumstances
to be taken into account, the question is why did
Respondent discharge4 Mrs. Allen, that is, because she
assaulted Freuler as Respondent contends, or, as the
General Counsel contends, on a pretextual basis but really
on account of her union activities
To start with we know from the previous decisions of
the Board that we are dealing with a Respondent violently
opposed to unionization, and bent on ferreting out the
identity of Union supporters and eliminating them from
its employ under the guise of pretexts, and that
Respondent had previously engaged in such illegal
practices at its Roanoke Rapids area plants and by such
means brought about the discriminatory discharge of some
25 union adherents Hence, if Respondent knew, or merely
considered, Mrs Allen to be or have been in the past a
union supporter, it may be taken for granted that she was
a marked person in Respondent's book and that
Respondent would seek out or welcome a convenient
opportunity to get rid of her for that reason
On testimony I have credited, her general overseer,
Robinson, did a year before her discharge know or
consider her to be a union supporter and had her down as
an employee to be eliminated What was the case with
Robinson it is reasonable to infer was the case with
Freuler, Robinson's assistant, and with Smith, Robinson's
superior For Respondent's program of eliminating union
adherents has in large part been implemented by
disciplinary action taken by ordinary plant supervisors,
and, as the evidence in this case and preceding ones
shows, Respondent has enabled itself to execute such a
program on a large scale by its pursuit of various
procedures for collecting information identifying particular
employees as real or suspected union supporters.
Information so collected it must be assumed was
intelligently disseminated among corresponding
supervising personnel, in order to achieve Respondent's
discriminatory objective. Hence, I reject Freuler's
testimony that he had never heard that Mrs. Allen had
had any connection with the Union,' and, as against
'Under examination by the Trial Examiner, Sikes also testified , first,
that there were looms between the north smoke booth and the spot where
Mrs Allen and Freuler were , so that one in the booth could not see Mrs
Allen and Freuler, and then that Ellis could have seen the incident by
looking through the looms Later he testified that if Ellis were standing up
in the smoke booth he could have seen Mrs Allen and Freuler by looking
over the intervening looms
'in his brief, counsel for the General Counsel interprets certain remarks
of Mr Blakeney, counsel for Respondent , at the hearing (Tr 405-407) as
meaning that Respondent asserts it did not discharge Mrs Allen but,
rather, that she quit But Mr Blakeney did not express such a position
instead, in response to a question by the Trial Examiner as to
Respondent 's position, he merely made a recitation of certain pertinent
events as Respondent viewed them , including a reference to Freuler's
testimony that although he had instructed Mrs Allen to come in the next
day she did not do so But Mr Blakeney went on to say that Mrs Allen's
discharge was determined upon the next day and introduced the
corresponding discharge paper into evidence He thus, at the most, avoided
a direct answer to the Examiner's question In any case , I find that
Respondent discharged Mrs Allen Its answer admits a corresponding
allegation of the complaint , it took the position that it had discharged her
in proceedings before the State Employment Security Commission in
September 1968, and whether or not Freuler told her on the night in
question that she was discharged , as I later find he did, there can be no
doubt that this is what she would have been told had she appeared the next
day
'in rejecting this testimony of Freuler 's I have also taken into account
his further testimony that he had never heard of any employees being
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Smith's denial, I credit the Aliens' testimony that Smith
said "You two union birds come to the office" when he
approached them on the night of August 21.6 For the
foregoing reasons, I also conclude that Robinson, Smith
and Freuler were all parties to a plan to discharge Mrs.
Allen because of her union activities at any convenient
opportunity.
Under all the circumstances, I have concluded that I
should credit Mrs Allen's testimony over that of Freuler's
as to what transpired in the incident between them
Accordingly, on the record as a whole, I find that the
following were the essential facts of the situation: that
Freuler approached Mrs Allen with a view to taking
some disciplinary action against her, that he bumped her
against a loom when she told him to leave her alone and
she responded by grabbing him by the throat;' and that
there was some further fray in the course of which he
discharged her on the spot
I further find that he discharged her because of her
union activities. In reaching this conclusion, I have taken
into account my inability to regard Freuler, Smith and
Robinson as credible witnesses on important points of
fact; my previous findings that all three knew she was a
union supporter and had her marked for elimination; the
findings of the Board, sustained by the courts, that such a
procedure for discharging union supporters is standard
practice with Respondent, and Smith's reference to Mrs.
Allen and her husband as "union birds" when he sought
to call them into his office shortly after Freuler's
encounter with Mrs Allen and shortly after Smith had
talked with Freuler
2. Arnold Ray Hux
Hux' employment began in 1959 and ended with his
discharge on November 13, 1968 He worked on the first
shift in the "Delta IV" finishing plant where his principal
function was to mix various types of "size," that is,
chemical mixtures put in cloth for finishing purposes and
concerned with the Union, an assertion which I consider wholly incredible
I likewise attach no significant weight to the testimony of various female
employees called by Respondent who testified that at one time or another
they had had some work association with Mrs Allen but had never heard
her mention any connection on her part with the Union , in part because
two of these witnesses admitted that employees did not talk or rarely
talked about union matters at the plant, as can readily be believed
Finally, I see no reason to discredit the proof relative to Mrs Allen's
union activities and Respondent's corresponding knowledge merely
because, as Respondent ' s proof establishes , she denied any union
connection at the hearing before the State Employment Security
Commission or in conversation with two personnel office clerks after her
discharge She explained her untruth before the commission as springing
from her fear of unemployability Without condoning her untruths, I do
not consider them , under all the circumstances , as justifying a rejection of
her contrary testimony in this case ,
'1 credit this testimony for the further reason that Smith testified he was
going to tell the Aliens to come to his office when he approached them
Considering the multitude of opening remarks Smith might have been
about to make it is distinctly unlikely that the Aliens could hit upon and
attribute to him a statement conforming generally to what he admits he
was about to say unless, in fact, he said it I find that he did tell them to
come to the office and, in doing so , described them as the "two union
birds "
'1 credit the witness Sikes' testimony and find that the witness Ellis was
in the north smoking booth , some 100 feet away , rather than in the nearby
booth , at the time of the incident Assuming that Ellis was merely
mistaken as to what booth he occupied , I cannot credit his testimony that
he clearly saw all that took place between Mrs Allen and Freuler in view
of the distance to the north booth and the intervening looms
which vary in composition with the type of cloth being
finished. Hux' immediate supervisors were Philip J.
Conwell, Jr., the assistant overseer in charge of the first
shift (there were three shifts in all with, I infer, each
having an assistant overseer), and Noel Weisner, the
general overseer.
Incidental to the Union's organizational campaign at
Respondent's Roanoke Rapids plants, Hux had attended
union meetings and signed union cards In addition, a
photograph of Mr Hux and his wife, with both their faces
readily recognizable by those who knew them, appeared in
a union pamphlet distributed by union representatives at
plant gates early in 1968 (Mrs Hux was one of the 17
Roanoke Rapids area employees found to have been
discriminated against by Respondent in the first Stevens
case - see 157 NLRB 869, at 945-946, and was later
reinstated and was in Respondent's employ at the time of
the hearing in this case) I consider it reasonable to infer
that Respondent came into possession of copies of this
pamphlet and that from it Hux' superiors were aware, not
later than early 1968, of his association with the Union.
While Hux had worked on a goodly number of
Saturdays between September 1967 and January 1968, he
had not been called for Saturday work after February
1968. No issue is tendered concerning this circumstance
but it may account for the fact that in July 1968 Hux
obtained a job working on Saturdays and Sundays at a
local automobile service station; this "outside" job of his
was known to his supervisors, Conwell and Weisner I
turn now to the testimony concerning the events
immediately surrounding Hux' discharge.
To begin with, three facts are not in dispute, that is (1)
that toward the end of his shift on Friday, November 8,
1968, Hux was told by Conwell to come to work the next
day (Saturday), (2) that he declined to do so, and (3) that
when he met with Plant Superintendent Crawford the next
Wednesday, Crawford, in discharging him, told him the
reason was his refusal to work the preceding Saturday.
The General Counsel contends, however, that the reason
assigned was a pretext, and that the true reason was Hux'
support of the union. This contention requires an
examination of the more detailed evidence and other
surrounding circumstances.
I deal first with the evidence relative to Hux' refusal to
work on Saturday. Shortly after 3 p.m. (the exact minute
is not important) Conwell told Hux to report for work on
Saturday and as I infer from various circumstances of
record, Conwell somehow made clear to Hux that the
reason he was needed was because . "tommy dodd"
material was going to be run that day.' From this point
on the testimony as to what else happened on Friday
varies and conflicts
Hux' version is When Conwell told him to come in on
Saturday, he told Conwell he could not do so on account
of his service station job, for which it was too late for him
to obtain a replacement, that Conwell made a reply which
he understood meant that he must nevertheless come in,
that he told Conwell he could get someone to work in his
place on Saturday, to which Conwell made no reply; and
that he then spoke to two employees - Junior Salmon
and Walker - each of whom agreed to replace him on
'Materials other than "tommy dodd" had been run on the many
preceding Saturdays, and for these other materials the first shift foreman,
Charlie Birdsong , was competent to and did mix the corresponding size
chemicals Birdsong was not able to mix the particular size required for
"tommy dodd " material Hence , when "tommy dodd" was to be run on
Saturday some size maker other than Birdsong was required '
J P. STEVENS & CO., INC. 673
Saturday Hux further testified that he then returned to
the supervisor's office where he told overseer Weisner that
Salmon and Walker were each available to work in his
place; that Weisner said he could not let Salmon or
Walker work - that it was Hux' job and he would have
to "run" it; and that he then told Weisner ". that's up
to you. I have got a replacement" and left the office
Conwell testified that when he told Hux they were
going to operate on Saturday, Hux merely said "not me"
and left. He further testified that some 10-15 minutes later
Hux came to the office (where, as I find, Conwell,
Weisner, and two employees were present) and, sticking
his head in the door said that if they were going to run
"tommy dodd" on Saturday they should get somebody
else to mix the size because he was "damned" if he would
be working;' that he responded by telling Hux he had
previously told him to come in on Saturday, and that Hux
then left. Conwell further testified that when he first told
Hux to come in on Saturday, Hux said nothing about a
replacement, either his getting one or the Company
getting one for him, and that Hux did not tell him on
Friday that he had obtained a replacement Conwell did
testify, however, that at a time not fixed in the record he
did ask one employee (not identified in the record but
whom he chose to approach because he knew that Hux
knew this man could mix size) whether Hux had asked
this employee to replace him and was told that Hux had
not Conwell further testified that in the course of a
conversation he had with Hux on Monday morning the
following exchange took place
I said. "But have you ever asked me to be off that I
didn't try to make arrangements9" And Ray said, "Not
that I can remember." He said, "But I told you I
wasn't going to work Saturday," and I said, "Ray, you
didn't ask me to get somebody in your place," I said,
and I said "That's why I didn't get nobody in your
place "
Weisner testified that about 3:15 - 3:30 p m. (when he
was unaware that Conwell had told Hux to work the next
day) Hux stuck his head in the office door and said that if
they were going to run "tommy dodd" the next day they
could get somebody else to make the size, that he was
"damned" if he was going to mix it, and that Conwell, in
response, told Hux his job was going to run on Saturday.
He further testified that about 3:40 p.m , when he was
alone in the office, Hux again stuck his head in the door
and told him again that if they were going to run "tommy
dodd" the next day they could get somebody else to mix
the size - that he was not going to work Weisner further
testified that he did not relay to Conwell what Hux had
said on this latter occasion and that neither he or Conwell
made any arrangements on Friday to fill Hux' place on
Saturday; and that Hux did not tell him on Friday that he
had arranged for a replacement on Saturday
When Hux failed to come in on Saturday, Conwell
reported this to Weisner and then called in another first
shift employee named Jesse Wallace to do the required
size making
When Hux reported for work on Monday morning,
Conwell at Weisner's instructions, sent Hux to see
Weisner. Weisner told Hux to come back the next day
because Weisner had not had time to talk the matter over
with Mr Crawford, the plant superintendent, that evening
Weisner notified Hux not to come in until Wednesday
'The two employees present confirmed this testimony of Conwell as to
Hux' refusal to work on Satuiday
afternoon. When Hux came in on Wednesday, Conwell
and Weisner went with him to Crawford's office where the
latter, after obtaining Hux' admission that he had refused
to work on the preceding Saturday, informed Hux that he
was discharged because of his refusal and his failure to
work as instructed.' °
The question before me is whether Hux' refusal to work
was the reason for his discharge or only a pretext. I
conclude that it was the latter. In a review of various of
Respondent's employment policies in the first Stevens
case, it was found that, prior to the advent of the Union,
Respondent's employees "employed a large measure of
job security." By way of illustration it was found, among
other things, that "Discharge was not common"; that
employees who quit were commonly rehired; that
Respondent was permissive in the matter of employee use
of "break time; that Respondent was lenient in the matter
of reprimands, and that:
Respondent was tolerant with respect to absences,
particularly excused absences Even in the case of
absences without prior notice when it was hard put to
obtain replacements on the shift, Respondent's attitude
was a lenient one and an employee might have several
unexcused absences without being discharged or even
written up
As to the matter of employees replacing one another,
Hux testified that he had replaced other employees and
that this was common practice when employees wished to
be off from work for a variety of reasons, including going
to "a ball game, to go to a fair, most anything." Further
testimony along these lines was elicited from two
employees to the effect that it was usual for one employee
to replace another who needed to be away from work and
for the Company to permit employees to be absent for
various reasons. Moreover, Conwell's testimony (supra)
that he told Hux on Monday that he had not gotten
anybody to replace Hux because Hux had not asked him
on Friday to do so, confirms Respondent's utilization of
the replacement procedure and its practicability in this
very instance Accepting this testimony, I find that it was
the normal practice of Respondent to excuse employees
from work for good reason and to use qualified
replacements for them when available as they were in the
case. I further find, in resolution of conflicting testimony,
that Hux told Conwell he could get someone to work in
his place on Saturday and later told Weisner that either
Walker or Salmon were available for this purpose, and
that Weisner told Hux, in effect, that he had to work on
Saturday irrespective of the availability of Walker or
Salmon. Moreover, Conwell and Weisner could not have
considered Hux' announced decision on Friday not to
work on Saturday as presenting any serious problem since
(1) they then made no effort to obtain a replacement for
Hux and (2) were able readily to obtain one, in the form
of Wallace, on Saturday morning. In short, the conduct of
Conwell and Weisner in this regard strongly indicates
their purpose to require Hux to work even though they
knew he had a conflicting job at the service station;
although other qualified employees were available to
"Respondent offered uncontradicted evidence that in a telephone
conversation Hux had with Conwell on Monday night Hux threatened to
beat up Conwell and Weisner if he were discharged , and that Crawford
brought this matter to Hux' attention in the Wednesday discharge
interview (where Hux denied uttering the threat ) However, Respondent's
evidence, including the testimony of Crawford , is that Crawford did not
predicate Hux' discharge on this ground but rested it solely on Hux'
refusal to work on Saturday
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
perform the necessary size making, and contrary to
Respondent's normal practice of utilizing available
replacements for employees having a need to be absent
from a regular tour of duty
In the circumstances, I cannot find that Hux' advance
refusal to work, or his failure to do so, was the real
reason for the discharge. Hence, the true reason must be
found elsewhere and the most logical place is Hux'
association with the Union. For this is a Respondent
dedicated to the elimination from its employ of union
adherents and equally dedicated to the use of pretexts to
accomplish this objective Accordingly, on the record of
Respondent's past conduct and all the circumstances of
this case as previously found, I find that Respondent,
utilizing Hux' refusal to work as a pretext, in fact
discharged him because of his union affiliation and
activities."
C The Alleged Coercive Statements
About November I, 1968, the employees of three of the
Roanoke Rapids area plants were assembled by their
supervisors and addressed, separately, by their respective
plant superintendents From the explanations given by
Respondent's witnesses (see infra) it would appear that the
employees at all the Roanoke Rapids plants were so
convened and addressed, however, the evidence adduced
by the General Counsel refers only to what took place at
three such plant employees gatherings The corresponding
plants and superintendents were: The Patterson plant,
Benjamin A Bobbitt, superintendent, the Fabricating
plant, Mason Lee, superintendent; and the Delta IV or
Finishing plant, Jesse T Crawford, superintendent About
200 employees were present at each of these meetings,
held during working hours.
The General Counsel contends that by remarks made at
one or another of these meetings the employees were:
1. Warned that the Company would find out what
employees signed union cards;
2. Warned not to talk with union organizers, and
3. Threatened that prounion employees would be
discharged
More specially, according to the complaint and the
General Counsel's testimony, all three of the
superintendents made the first statement and two of them
uttered the other two
As an overall matter, it may be noted that
determination of the questions posed by these charges
would have been facilitated if the record contained any
evidence,`from either side, purporting to resemble a full
and clear account of all that each of the superintendents
said, which must have been considerable since each
superintendent spoke for about 15 minutes. But the record
contains no such attempted full account. Rather, on the
General Counsel's past, the testimony of his witnesses is
extremely brief and pertains only to remarks of the sort
charged in the complaint. On Respondent's part, its
testimony (that of the three superintendents) consists
essentially of explanations as to why the meetings were
called," some generalized description of some of the
"The record contains reference to certain written reprimands and one
oral one given to Hux in 1964, 1967, and in July and August 1968 But
Respondent did not contend at the hearing, and in any case offered no
proof, that Superintendent Crawford took these past matters into account
in determining to discharge Hux Indeed , his testimony that he discharged
Hux for the sole reason that he refused to (and failed ) to work on the
Saturday indicates that these past items did not enter into his decision
remarks made," and denials that the statements charged
were made Moreover, although each superintendent
addressed some 200 employees, the General Counsel
produced only one witness as to each superintendent and
two of these witnesses (Richardson and Arnold Ray Hux)
admittedly did not pay close attention to what their
respective superintendents were saying and otherwise, as
their testimony shows, did not have a clear or trustworthy
recollection as to some of the few remarks they testified
about In these various circumstances, the resolution of
conflicts in the evidence cannot be approached without a
marked sense of uneasiness. -
I Remarks concerning disclosure of the identity of
card-signers
The complaint charges that all three superintendents
warned the employees that Respondent would find out
which of them signed union cards As to Lee, the only
testimony is his own. As to Superintendent Bobbitt, the
General Counsel's witness Richardson testified that the
Company would know who signed union cards - that the
cards would "be brought and laid on their desks "' ° As to
Superintendent Crawford, the General Counsel's witness
Arnold Ray Hux testified that Crawford said signed cards
would be brought out on a table where "folks could see
them " But the entire testimony of these two witnesses,
and particularly their testimony under cross-examination,
satisfies me that neither had any clear recollection as to
what the two superintendents actually said, and I believe
the version given by the three superintendents as to what
they did say is more accurate This version is that a
situation could arise in which it would be necessary to
produce signed cards in a public courtroom and the
corresponding signing employees could be required to
testify, and, by way of illustration, the superintendents
referred to a Board proceeding involving its Statesboro
plant where this procedure had taken place. In this
connection, Lee testified that "we covered the dangers of
signing union cards , or repercussions that can come from
signing union cards," while Crawford testified that he
pointed out the "danger" of an employer signing a union
card thinking it could never be seen.
Nevertheless, and whether or not the superintendents
described their remarks as intended to refute some
"confidential" wording on the union cards, what they said
"According to Respondent 's witnesses, the employee assemblies were
convened following a meeting or meetings between General Manager
Fuller and plant superintendents and were prompted by Board and court
rulings adverse to Respondent in prior Stevens cases, by Respondent's
reinstatement of employees found to have been discrimmatonly discharged
in those prior cases , and by corresponding publicity and rumors More
specifically , one or another of Respondent 's superintendents testified, the
meetings were called so that the Company could disabuse the employees of
such erroneous notions as that they could do as they pleased while at work,
that the Union was coming in regardless of an election , that anyone
discharged would have to be reinstated with backpay, that the identity of
union card signers would be known only to the Union, etc
"Since Superintendents Bobbitt and Lee spoke from notes, I assume
Superintendent Crawford did also. Bobbitt and Lee testified that they no
longer had their notes, Crawford was not questioned in this regard
"This testimony suggests that Bobbitt said the cards would find their
way to company desks, and initially in his cross-examination Richardson
testified that Bobbitt said the cards would be laid " face up" on a table
without mentioning a court house or elsewhere Later, however, he said he
understood from what Bobbitt said that the cards would be exhibited in a
public proceeding in a courthouse In Hux' case, his cross-examination
brought out a similar contradiction (see the following footnote) and
otherwise revealed his uncertain recollection
J. P. STEVENS & CO., INC. 675
was coercive . For, as the employees could not but be well
aware, Respondent was given to ferreting out the identity
of union supporters and, armed with such knowledge, to
discriminating against them Bearing in mind also that
two of the superintendents referred to the dangers signers
would face as a result of public exposure of their identity,
and that the superintendents gave the employees no
counteracting assurances, the employees could reasonably,
if not necessarily , regard the superintendents ' remarks as
a warning that card signing carried with it the possibility
of both exposure to Respondent and retaliation by it. See,
N L.R B v Finesilver Mfg - Co , 400 F . 2d 644 , 645-646
(C A. 5).
these, testified as follows
He said everybody that signed a union card, they think
that they wouldn't know about it, but it would be
brought and laid on their desks, that the Company
would know about it. And then he said they should
be fired or would be put out
Bobbitt denied saying that employees who signed union
cards would be discharged. He further testified that in his
talk he made the point that the Company still had the
right to discharge employees where it was appropriate to
do so, despite any contrary impression the employees
might have gained from some publicity
2. The alleged warning not to talk to union
organizers
The complaint charges that a statement of this
character was made by Superintendents Crawford and
Lee As to Lee, the General Counsel offered no
supporting evidence As to Crawford, his witness was
Arnold Ray Hux, who testified that after Crawford got
through reading "a Court Order" he got to talking and,
among other things, said that "if any of the union people
came to your house or talk to you about it or anything,
just run them off " But on cross-examination Hux
disclosed that he did not pay attention to some portions of
Crawford's remarks, and that as to another of Crawford's
alleged remarks he had both an uncertain and, as it turned
out an erroneous recollection." Moreover, there is no
other evidence that Crawford or the other superintendents
were reading any court order on these occasions and, all
of the evidence, I do not believe this was the case Hence,
in this respect also I conclude that Hux exhibited a
capacity for faulty recollection On the whole, therefore, it
is my distinct impression and conclusion that, assuming
Crawford made some remarks on this general subject of
treatment of union organizers (about the nature of which
it is idle to speculate) Hux' testimony cannot be taken as
a reliable guide to what Crawford actually said. Bearing
in mind Crawford's denial that he made the statement
attributed to him in Hux' testimony, I find and conclude
that the General Counsel has not sustained his burden of
proof in regard to this matter.16
3. The alleged threat to discharge union card signers
The complaint directs this charge against
Superintendents Bobbitt and Crawford As to Bobbitt, the
evidence of the General Counsel is contained in the direct
testimony of the witness Richardson Richardson testified
that at first Bobbitt read from a "sheet" but he did not
pay- much attention to and did not remember what
Bobbitt said during this period However, he testified he
recalled remarks Bobbitt subsequently made and, among
"This matter concerned whether Crawford had said that it would be in
Board proceedings that employees' signed union cards could become
public Under cross-examination , Hux several times denied that Crawford
referred to a public or Board proceeding as the place where the cards
would be exhibited , but later , when confronted with his pretrial statement,
admitted that Crawford had referred to a Board hearing or proceeding in
this connection
"Employee Richardson testified that in Superintendent Bobbitt's
remarks, Bobbitt told the employees to "run ofr' anybody who came to
their homes to talk about a union But there is no such charge in the
complaint and possibly for this reason , Respondent 's counsel did not cross
examine Richardson on this subject In the circumstances, I have not taken
this testimony into account in relation to the charge directed to Crawford
As to Crawford, the General Counsel's witness as to his
remarks was Arnold Ray Hux But Hux did not give any
testimony that Crawford threatened prounion employees
with discharge, as alleged in the complaint. Assuming that
the following is the portion of his testimony relied upon
by the General Counsel, he merely testified that Crawford
said "that the Company could fire and hire whoever they
wanted whenever they wanted to " Crawford's testimony
is that, among other things, he referred to rumors going
around that the Company no longer had authority to
discharge anyone for any reason and that he told the
employees the Company had had and still had the right to
discharge when it was necessary " There may be some
question whether Arnold Ray Hux' version of Crawford's
remarks, if taken as a near-precise restatement of them,
would sustain the rather specific charge in the complaint
that Crawford threatened prounion employees with
discharge However this may be, I am satisfied that Hux
did not have a clear or reliable recollection as to what
Crawford actually said but, rather, offered in his
testimony only a loose and unreliable interpretation of
more particular statements. Finally, my conclusion that
the testimony of the General Counsel's witnesses is
marked by fatal infirmities is fortified, in my mind, by my
hesitance to believe that Respondent, despite its record of
grave and persistent violations of the Act, would in
assemblies of hundreds of its employees openly announce
its intention to discharge any and all union card signers or
supporters
Accordingly, I will recommend that this charge of the
complaint be dismissed for failure of proof by adequate
credible evidence.
"The General Counsel ' s witness Rochell Hux testified that in
Superintendent Lee's speech he said that "if anybody , you know , signed
any union cards or were caught signing any, they would be fired," and was
cross examined as to this testimony However, counsel for the General
Counsel did not seek to amend the complaint so as to include a
corresponding charge involving Lee But even if Lee's remarks in this
respect could be deemed to have been put in issue as a further alleged
violation, I would not credit Mr Hux ' testimony over Lee's denial Asked
to state what took place at the meeting, Mrs Hux obviously could
remember very little and, under examination by the Trial Examiner, could
not recall whether what Lee said about discharging employees related to
their signing cards or engaging in other union activities on working time
From her testimony and my observation of her I am satisfied that she
cannot be considered a reliable witness as to what Lee actually said but,
rather, was testifying to an erroneous impression she had gained by
running together or otherwise confusing some things he did say, such as,
possibly, his remarks about possible exposure of the identity of union card
signers and other remarks about the Company ' s continued right to hire
and fire for cause, which I find he made
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. By discriminatorily discharging Betty S. Allen and
Arnold Ray Hux, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
2. By the above discharges, and by warning its
employees in a coercive manner that the identity of
employees who sign union cards may become known to
Respondent, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(l) of the Act.
3 The aforesaid are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of
the Act.
4. Respondent has not engaged in any other unfair
labor practices alleged in the complaint
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(3) and
(1) of the Act, my Recommended Order will provide that
it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act
Because of the character and scope of the unfair labor
practices herein found, and Respondent's previous and
similarly grave violations at its Roanoke Rapids plants
my Recommended Order will provide not only that the
Respondent cease and desist from the specific unfair labor
practices found, but also that it cease and desist from in
any other manner interfering with, restraining, and
coercing employees in the exercise of their rights
guaranteed by Section 7 of the Act.
I have found that the Respondent discharged two
employees in violation of the Act. To remedy these unfair
labor practices, my Recommended Order will provide that
the Respondent offer each of these employees immediate
and full reinstatement to his former, or a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, and make him whole for any
loss of earnings he may have suffered as a result of the
discrimination to the date of the Respondent's offer of
reinstatement, less his net earnings during such period,
with backpay and interest thereon to be computed in the
manner proscribed by the Board in F W Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating
Co, 138 NLRB 216.18
In the fifth Stevens case, 171 NLRB No 163, the
Board stated that upon "review of all the relevant factors
herein, including the Respondent's companywide history
of extensive unfair labor practices" it was persuaded that
"the conventional remedies would not be adequate to
disabuse the employees of the effects or' Respondent's
conduct, and accordingly included in its order unusual
provisions generally conforming to those included in
previous cases These unusual provisions of the order in
the fifth case were recently sustained in full by the Court
of Appeals for the Fifth Circuit in an opinion issued on
October 3, 1969, with the court observing that "we assay
the order in this atmosphere of persistent, long continued,
flagrant violations occurring after and in spite of repeated
declarations of illegality by Board and reviewing Courts "
For the reasons expressed by the Board in its previous
decisions and because of Respondent's previous violations
"In the light of relevant Board decisions , of the unfair , provocative, and
discriminatory treatment Respondent accorded to Hux , and of the fact that
Hux never attempted to carry out his threat to beat up Conwell and
Weisner, I see no reason on this score to preclude Hux from reinstatement
at its Roanoke Rapids plants, I conclude that these
unusual provisions are necessary to remedy, so far as
possible, the effects of Respondent's violations in this case
and include them in my Recommended Order In
connection with the provisions of the order relative to the
mailing, posting and reading of the notice to employees
the record is not clear but it may be that Respondent
operates at Roanoke Rapids plants in addition to those
where the unfair labor practices in this case occurred. But
because whatever number of plants there are, they are all
situated on this one locality and all were involved in the
Union's organizational drive, the employees at each one of
this group of plants should receive the assurances which
the provisions concerning notices are designed to provide.
My Recommended Order so provides.
RECOMMENDED ORDER
The Respondent , J. P Stevens & Co., Inc, Roanoke
Rapids, North Carolina , its officers , agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Textile Workers Union
of America , AFL-CIO, or any other labor organization,
by discriminatorily discharging any employees or by
discriminating in any other manner with respect to their
hire and tenure of employment or any term or condition
of employment.
(b) In any other manner interfering with , restraining, or
coercing its employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act.
(a) Offer to Betty S. Allen and Arnold Ray Hux
immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges previously
enjoyed , and make each whole for any loss of pay suffered
by reason of his discharge , in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Notify the above-named employees if presently
serving in the Armed Forces of the United States of their
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) Preserve and, upon request , make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records,
timecards , personnel records and reports, as well as all
other records necessary to analyze and compute the
amount of backpay due under the terms of this
Recommended Order.
(d) Inform the employees of their rights under the Act
and assure them that Respondent will not engage in the
conduct from which it is ordered herein to cease and
desist , and that Respondent will comply with the
affirmative requirements of this order by mailing a copy
of the attached notice marked "Appendix"" to each
"in the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 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 In the event
J. P. STEVENS & CO., INC. 677
employee of each of its plants at Roanoke Rapids, North
Carolina, and posting copies thereof at the said plants for
60 consecutive days thereafter, in conspicuous places,
including all 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.
(e) Upon request of the Union, immediately grant the
Union and its representatives reasonable access at each of
its Roanoke Rapids, North Carolina, plants, for a 1-year
period, to its bulletin boards and all places where notices
to employees are customarily posted.
(f) Upon request of the Union, made within I year of
the issuance date of this Decision, immediately give to the
Union a list of the names and addresses of all employees
in each of its Roanoke Rapids, North Carolina, plants.
(g) Convene during working time, by departments and
by shifts, all its employees in each of the said plants, and
a responsible official of the Respondent, at department
supervisor level or above, or a Board agent shall read to
department employees the contents of the attached
Appendix A.
(h) Notify the Regional Director for Region 11, in
writing within 20 days from the date of its receipt of this
Decision, what steps have been taken to comply herewith 30
IT IS HEREBY FURTHER ORDERED that the complaint
herein be, and it hereby is, dismissed insofar as it alleges
violations of the Act not found herein.
The Act gives all employees these rights:
To organize themselves;
To form, join, or help unions;
To bargain as a group through a representative
they choose;
To act together for collective bargaining or other
mutual aid or protection; and
To refuse to do any or all of these things.
The Board has also ordered us to assure our employees
that:
WE WILL NOT do anything that interferes with these
rights
You are free to join the Textile Workers Union of
America, AFL-CIO or any other union, and, by
majority choice, to select any union to represent you
in bargaining with us.
WE WILL NOT fire you, or punish you or treat you
differently in any way because you join or favor a
union
The National Labor Relations Board found that when
we fired Certain Employees we did this because these
employees were for the Union. The Board found that this
violated the Act.
WE WILL give back to these employees their jobs and
seniority, and WE WILL make up the pay they lost and
also pay them 6 percent interest The names of these
employees are:
BETTY S ALLEN
ARNOLD RAY HUX
that the Board ' s Order is enforced by a judgment of a United States Court
of Appeals , the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "posted
pursuant to a judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
"in the event that this Recommended Order is adopted by 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
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations Board
an agency of the United States Government
After a trial at which all sides had the chance to give
evidence, the National Labor Relations Board found that
we, J. P Stevens & Co., Inc., violated the National Labor
Relations Act, and ordered us to post this notice to
inform our employees of their rights.
J. P. STEVENS & CO., INC.
Dated
(Employer)
By
(Representative ) (Title)
Note: We will notify the above-named employees if
presently serving in the Armed Forces of the United
States of their 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.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's Office,
1624 Wachovia Building, 301 North Main Street,
Winston-Salem, North Carolina Telephone 919-723-9211