J. P. Stevens & Co., Inc.

National Labor Relations Board - Board Decisions

Jul 30, 1975

219 N.L.R.B. 850 (N.L.R.B. 1975)

850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. P. Stevens & Co., Inc. and Textile Workers Union
of America, AFL-CIO. Cases 11-CA-5482, 11-
CA-5489, 11-CA-5509, 11-CA-5145, and 11-
CA-5682
July 30, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On November 22, 1974, Administrative Law Judge
Paul E . Weil issued the attached Decision in this pro-
ceeding . Thereafter , Respondent , General Counsel,
and Charging Party filed exceptions and supporting
briefs.
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 au-
thority in this proceeding to a three -member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings , findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
During a meeting called by the Respondent to pre-
sent its views with respect to unionization, an em-
ployee asked a question and was ignored . Employee
Doris Barber insisted that the question be answered
and that the employees had a right to an answer, and
for this insistence was discharged . Unlike the em-
ployees at the Delta plants who were discharged,
Barber was not shown to have been engaged in any
plan to disrupt the Respondent 's meeting.
As Member Kennedy (who is dissenting to this as-
pect of the case) recognizes , Barber's conduct was
like that of employee Berry in Prescott Industrial
Products Company, 205 NLRB 51 (1973), enforce-
ment denied 500 F .2d 6 (C.A. 8, 1974).3 The Board
'Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board 's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 The aggregate majority in this split -decision case has decided to adopt
the Decision of the Administrative Law Judge . As indicated infra, Member
Fanning would adopt the Decision insofar as it found violations of the Act
but would also find that the employees at the Delta plants were unlawfully
discharged as alleged in the complaint; Member Kennedy would adopt the
Decision except , as indicated Infra, that he would find the discharge of
employee Dons Barber to be lawful ; and Member Penello would adopt the
Decision in its entirety.
3 To the extent that our finding herein is in conflict with the decision of
the United States Court of Appeals for the Eighth Circuit, we respectfully
disagree and shall adhere to our view until such time as the United States
Supreme Court has passed on the matter.
majority therein held that an employee who insisted
on the right to ask a question at a meeting called by
the employer could not be lawfully discharged for so
doing. There, as here with Barber, no violent con-
duct, improper motive, or bad faith was shown. For
the reasons set forth in Prescott, we find, in accord
with the Administrative Law Judge, that
Respondent's discharge of Doris Barber is violative
of Section 8(a)(3) and (1) of the Act.
Member Fanning, in his partial dissent, would find
that the 22 employees at the Delta plants at Wallace,
South Carolina, were illegally discharged for engag-
ing in protected activity within the Prescott principle
"because they had the temerity to ask questions or
merely stood silently in support of such questions."
However, as found by the Administrative Law Judge,
the Wallace employees were engaged in a planned
course of conduct to disrupt the captive audience
speeches in an attempt to turn the meetings into a
union forum. The union organizers had circulated a
list of suggested questions and a news item indicating
that employees had the right to ask questions at man-
agement speeches. The questions suggested in the list
were by nature argumentative. Thus, there was a
plan, however loosely formulated, to ask argumenta-
tive questions at Respondent's speeches. The con-
duct in carrying out the plan shows a motive to dis-
rupt the speeches. Although there were variations
from one meeting to another, generally at the begin-
ning of the management speech an employee would
ask loaded, loud, and distracting questions. Then
others would join in. At another speech employees
loudly asserted that they had the right to ask ques-
tions and one employee insisted on being given time
to speak in favor of the union. The speakers repeat-
edly told the employees to sit down and that they
were not there to answer questions. Only when the
employees persisted were they discharged. In fact, a
couple of the meetings were adjourned to remove the
disrupters, only to be disrupted again.
From the above, we find, in accord with the Ad-
ministrative Law Judge, that the employees engaged
in planned conduct calculated to disrupt
Respondent's meetings and dilute their legitimate
purpose. The Respondent, having warned the em-
ployees at least three times to sit down, had a right to
discharge the obstructive employees. Hicks Ponder
Company, 168 NLRB 806 (1967). As stated by the
Administrative Law Judge, "To have permitted the
employees to completely disrupt the Employer's
meetings , with the option of either stopping the meet-
ing or spending the Employer's time in answering
what were unquestionably `loaded' questions from
the Union enthusiasts on the floor, would substan-
tially negate the Employer's rights to present its argu-
219 NLRB No. 156
J. P. STEVENS & CO., INC. 851
ments ." Accordingly, we shall dismiss this part of the
complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, J. P. Stevens & Co.,
Inc., Wallace, South Carolina, and Turnersburg,
North Carolina, its officers, agents , successors, and
assigns, shall take the action set forth in the said rec-
ommended Order.
MEMBER FANNING, concurring in part, dissenting in
part:
Respondent, during a captive audience speech,
held in the last stages of an emotional organizational
campaign at its Wallace, South Carolina, plants,
summarily discharged 22 employees, without any re-
gard to the quality of their work, because they had
the temerity to ask questions, or merely stood silently
in support of such questions. The failure of my ma-
jority colleagues to discern the Respondent' s anti-
union motive in taking such action and their dismiss-
al of all allegations of the complaint pertaining to
such discharges compel me to dissent.
The events of this case occurred during a bitterly
contested campaign by the Textile Workers Union of
America (herein the Union ) to organize employees at
various textile plants of Respondent in Wallace,
South Carolina, and Turnersburg, North Carolina. In
the Wallace campaign, Respondent had scheduled
captive audience speeches to be given 2 days prior to
a Board-conducted election for each of the three
shifts at its three Wallace plants. Respondent had
held such a meeting earlier in the campaign without
affording employees the opportunity to ask any ques-
tions. Therefore, in an effort to encourage questions
by employees in the waning hours of the campaign,
the Union, at a meeting held the day before the
scheduled speeches, distributed to attending employ-
ees copies of an article in "U.S. News and World
Report" (August 20, 1973) that referred to the right
of employees to ask questions after a company
antiunion speech?
The article was entitled "What You As a Businessman Can and Cannot
Do As a Result of Recent Court and Administrative Decisions ." The rele-
vant excerpted paragraph reads as follows:
YOU CANNOT, after making a speech against union organizing to your
employees on company time and on company property , fire a worker
for insubordination if he insists on the right to ask you questions accord-
ing to the National Labor Relations Board. Ducking the issue of
whether the Employer had to reply to such questions , the Board says
that the workers' refusal to sit down or leave was protected activity
under the Taft-Hartley Act.
The speech for the first shift of employees at Wal-
lace Plant 2 was held at 8:30 a.m. the next day. As
Plant Manager Young began to talk, an employee
arose, repeatedly asked to be recognized, and finally
asked why no company representative had accepted
a previous union challenge to debate. Young, after
initially trying to ignore the employee, finally told
him that no questions would be allowed since the
plant machinery was shut down and asked him to be
quiet and sit down. At this point, several other em-
ployees arose and began asserting their right to ask
questions and protesting Young's refusal to entertain
them. Some of the employees displayed copies of the
previously distributed magazine article. Others cited
previous statements of a high-level management su-
pervisor that questions by employees were always
welcome. One employee merely arose without saying
anything at all.
After Young's repeated order to employees to sit
down and let him continue the speech was ignored,
he adjourned the meeting and ordered the employees
back to work. Shortly thereafter, Industrial Relations
Manager Greene, who had been present at the meet-
ing, summoned to his office, individually, the em-
ployees who had stood during the meeting or asked
questions and had indeed refused to sit down after
having been requested by Young to do so. When the
employee answered in the affirmative, Greene dis-
charged him.
Young reconvened the employee meeting a little
later in the morning, but the process repeated itself.
As Young started to speak, an employee immediately
arose and asked why several of his fellow employees
had just been fired. He was followed by five other
employees who stood and either repeated that ques-
tion, asked another question relating generally to the
campaign, or merely remained silent. Again Young
repeatedly ordered them to be quiet and sit down.
When they refused to do so, Greene adjourned the
meeting and ordered all the employees who were
standing to report to his office, whereupon, after the
same inquiry he had made of the employees earlier,
he discharged them. Young eventually reconvened
the first-shift meeting and successfully completed his
speech without further incident.
In the meetings for the second- and third-shift em-
ployees held later that afternoon and evening, there
was a similar sequence of events. At the second-shift
meeting, as Young started to speak, four employees
arose and began asking questions . Young, unable to
persuade them to be quiet and sit down, adjourned
the meeting . The four employees were summoned to
Greene's office and indefinitely suspended, only to
be-discharged the next day. Young reconvened the
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting but as he began to speak two more employ-
ees stood up and asked that a certain amount of time
be set aside for questions. This time, however, Young
was able to continue the speech, as Greene ushered
the two employees out of the room and discharged
them. A similar request was made by an employee at
the third-shift speech. He too was escorted out by
Greene and discharged while Young continued his
speech. Similar occurrences took place at the Wal-
lace Plant 3 that same day where Plant Manager
Traynham was attempting to make antiunion
speeches to employees assembled at each of three
shift meetings. Both his first and second-shift
speeches were interrupted by employees who arose to
ask questions. However, only one employee was dis-
charged after he interrupted the second-shift speech
with questions as to Respondent's campaign claims.
These attempts by employees to ask questions dur-
ing the captive audience speeches did not take Re-
spondent by surprise. Days before the speech, Young
and Greene had anticipated questions might be
asked and therefore planned to discharge any em-
ployee who asked questions they felt to be "disrup-
tive." However, no employee was ever given any ad-
vance warning, either before or during the speeches,
that their attempt to ask questions would be grounds
for their discharge.
Unlike my majority colleagues, I would find an
8(a)(3) violation by Respondent clearly established
by the facts of this case. Can one really believe that
Respondent, as a reasonable and prudent employer,
would suddenly and summarily fire 22 hitherto satis-
factory employees merely because they asked or
sought to ask questions during its captive audience
speech, or merely stood silently during a speech, un-
less Respondent had something in mind other than
the mere desire to minimize disruption at its
speeches? It could have accomplished this by simply
having the questioning employees removed from the
meeting.
Respondent's entire course of conduct in the latter
stages of the union campaign clearly reflected its de-
sire to chill concerted partisan activity by inquisitive
employees rather than to insure the unencumbered
presentation of its speeches. Although Respondent
Representatives Greene and Young had planned to
discharge only employees who asked questions that
disrupted the speeches, Respondent ended by firing
numerous employees without regard to the actual
disruptive nature of their actions-and without any
advance warning. Three people were fired for merely
standing without saying anything.' In three other in-
5 Young had testified that when he and Greene were planning their pre-
speech strategy it was agreed that people who merely stood silently would
not be regarded as disrupting speeches.
stances, Respondent was able to usher the question-
ing employees out of the room without causing any
disruption to the speeches. Furthermore, with regard
to all of the 22 employees, it appears that, to the
extent Respondent wanted to be able to deliver its
speeches effectively without interruption, that objec-
tive could be, and indeed was, accomplished when it
adjourned the meeting and removed the so-called
disruptive employees from the room and reconvened
the meeting. To then take the extreme measure of
discharging these employees, without any investiga-
tion into the quality of their work or discipline re-
cords, indicates a different and more sinister objec-
tive on the part of Respondent-to have these
employees serve as an object lesson to others that it
would brook no attempt by employees to question or
dispute any campaign claims of Respondent. That
Respondent would engage in such egregious conduct
to discourage legitimate concerted union activity is
not at all surprising . Its longstanding unlawful resis-
tance to unionization is a matter of public record.6 I
would find Respondent violated Section 8(a)(3) by
discharging the 22 employees at the Wallace plants.
Even if one were to ascribe a more charitable mo-
tive to Respondent and find that the discharge of the
22 employees was the product of its spontaneous and
angry reaction to what it considered insubordination
during its speeches, the discharges are still violative
of Section 8(a)(1), as the employees were engaging in
protected concerted activity.
In Prescott Industrial Products Co.,' the Board held
the interruption by an employee of a preelection
company presentation with a demand to ask a ques-
tion and his refusal to obey the plant manager's or-
der to sit down or leave the room to be protected by
Section 7 of the Act. Therefore, his discharge for en-
6 See J. P Stevens & Co., Inc. (1), 157 NLRB 869 (1966), enfd . with modi-
fications 380 F.2d 292 (C.A. 2), cert. denied 389 U.S. 1005 (1967); J. P.
Stevens & Co., Inc (II), 163 NLRB 217, enfd . with modifications 388 F.2d
896 (C .A. 2, 1967 ), cert. denied 393 U.S. 836 (1968); J. P. Stevens & Co., Inc.
(111), 167 NLRB 266 (1967), enfd . with modifications 406 F.2d 1017 (C.A. 4,
1968); J P. Stevens & Co., Inc. (IV), 167 NLRB 258 (1967), enfd. with
modifications 406 F .2d 1017 (C.A. 4, 1968); J P Stevens & Co., Inc. (Dub-
lin-Nathaniel Plants) (V), 171 NLRB 1202 (1968), enfd. 417 F.2d 533 (C.A. 5,
1969); The Black Hawk Corporation (Stevens VI), 177 NLRB 944 (1969),
enforcement denied 431 F.2d 900 (C.A. 4, 1970), J. P. Stevens & Co., Inc.
Guhstan Division (VII), 179 NLRB 254 (1969 ), enfd . 441 F.2d 514 (C.A. 5,
1971); J. P Stevens & Co., Inc. (VIII), 181 NLRB 666 (1970), enforcement
granted in part and denied in part 449 F.2d 595 (C.A. 4, 1971); J. P. Stevens
& Co., Inc (IX), 183 NLRB 25 (1970), enfd . 461 F.2d 490 (C.A. 4, 1972);
The Black Hawk Corporation (Stevens X), 183 NLRB 267 (1970); J. P. Ste-
vens & Co., Inc, Guhstan Division (XI), 186 NLRB 180 (1970), enfd. 78
LRRM 3116 (C.A. 5, 1971); J. P. Stevens & Co., Inc. (XII), 190 NLRB 751
(1971). remanded on other grounds 475 F.2d 973 (C.A.D.C., 1973); J P.
Stevens & Co., Inc. (X111), 464 F.2d 1326 (C.A. 2, 1972), cert. denied 410
U.S. 926 ( 1973) (on contempt J P Stevens I and II); J P. Stevens & Co.,
Inc. (XIV) (on contempt J. P. Stevens VII and XI, Special Master's Report
issued on June 9, 1975, Second Circuit ; and J. P. Stevens & Co. (XV) (on
contempt ); J. P. Stevens I and 11, pending before Special Master).
7205 NLRB 51 (1973).
J. P. STEVENS & CO., INC. 853
gaging in this protected activity violated Section
8(a)(1). The Board carefully described the metes and
bounds of permissible employee conduct during an
employer's captive audience speech:
The Board has long held that there is a line
beyond which employees may not go with impu-
nity while engaging in protected concerted activ-
ities and that if employees exceed the line the
activity loses its protection. That line is drawn
between cases where employees engaged in con-
certed activities exceed the bounds of lawful
conduct in a moment of animal exuberance or
in a manner not motivated by improper motives
and those flagrant cases in which the miscon-
duct is so violent or of such a character as to
render the employee unfit for further service.'
The Administrative Law Judge was correct in ap-
plying the Prescott rule to the facts of the instant
case. Indeed, he found the conduct of employee Bar-
ber at the Turnersburg plant, i.e., the interruption of
Plant Manager Gray's speech with the insistence that
he answer another employee 's question and a refusal
to sit down or to leave the room, to be a legitimate
"spontaneous protest on behalf of all the employees"
and thus within the area of protected concerted ac-
tivity delineated in Prescott, I, along with Member
Penello, readily concur with this finding of the Ad-
ministrative Law Judge.
However, unlike the Administrative Law Judge
and the majority, I would find the activity of the 22
dischargees at the Wallace plants equally protected. I
perceive no distinction between their conduct and
the conduct of Barber. In both the Wallace and
Turnersburg plants, employees interrupted preelec-
tion captive audience speeches with a request to ask
questions themselves or a demand that the speaker
answer other employee questions . In both situations,
the employees refused to be quiet and sit down or
leave the meeting room . The additional crucial ele-
ment asserted to be present in the Wallace case that
was absent in the Turnersburg case is the discharged
employees' so-called plan to disrupt Respondent's
speeches, which is supposed to establish that their
conduct was "motivated by improper motives" and
` of such an aggravated nature as to render them un-
fit for further service," and therefore exceeded the
Prescott boundaries of permissible activity.
While a group of employees might engage in a
premeditated scheme to interrupt and thereby sub-
vert an employer's preelection speech, and thus place
themselves beyond the pale of the protection of the
Act, the facts of the instant case do not even remote-
' Id at 51-52.
ly suggest the existence of such a scheme. There is
not a scintilla of evidence of a conspiracy to heckle
or otherwise interrupt Respondent's speakers so as to
prevent an effective presentation of the speech. Nor
is there testimony of an agreement among employ-
ees, explicit or implicit, to ask disruptive questions in
concert.
The Administrative Law Judge finds such a
premeditated plan in the Union's distribution to the
employees of the magazine article setting forth their
right to ask questions, and the circulation among var-
ious employees of a list of suggested questions. But
this conduct does not establish any plan to disrupt
the speech; rather, it attests to the importance the
Union and employees attached to probing the sincer-
ity and veracity of Respondent's campaign claims.
The desire to ask questions of an employer in the
midst of an organizational campaign is normal and
indeed wholesome among employees who wish to
cast their ballots intelligently.
The ensuing conduct of the 22 dischargees during
the captive audience speeches, when viewed in the
total context of the election campaign to organize the
employees of a company with a well-deserved and
notorious reputation for thwarting the collective de-
sires of its workers? According to the testimony of
Plant Manager Traynham, "feeling was running up
pretty strong" among the prounion and antiunion
employees. To date, Respondent has not engaged in
any campaign dialogue or held itself available for
questions by either the Union or interested employ-
ees. Finally, in the eleventh hour of the campaign, 2
days prior to the election, Respondent holds a series
of captive audience speeches, which employees real-
ize will be the last opportunity to ask questions of the
speaker so as to clarify where Respondent stands on
various campaign issues . Therefore, when the initial
attempt by an employee to ask a question was met
with the uncompromising reply by Plant Manager
Young that no questions whatsoever would be al-
lowed, it is not at all surprising that various employ-
ees spontaneously arose and asserted their right to
ask questions or injected partisan comments. Further
provocation for their conduct was provided when the
first group of employees was summarily discharged
for engaging in such protests. Given the circum-
stances of this case, the sudden outburst by the dis-
chargees, albeit falling below the standard of draw-
ingroom conversation, was precisely the kind of
"animal exuberance" the Board held in Prescott to be
protected concerted activity.10 Respondent's ada-
9 See In . 6, supra.
10 The Administrative Law Judge's reliance on Hicks Ponder Company.
168 NLRB 806 (1967), is misplaced In Hicks Ponder four specifically identi-
fiable employees each engaged in numerous repeated efforts to disrupt corn-
Continued
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mant refusal to answer any questions at the captive
audience speech on the eve of an election triggered a
spontaneous reaction by inquisitive employees desir-
ous of clarifying many of Respondent's positions on
campaign issues . I would find their conduct protect-
ed by Section 7 and their discharge for engaging in
such conduct violative of Section 8(a)(1).
In sum , the conduct of the employees involved was
well within the bounds of appropriate conduct. My
colleagues lose sight of the fact that the issue here is
whether employees called together by their employer
to listen to antiunion views are required to remain
silent or may attempt to engage him in a meaningful
dialogue concerning organizational issues. Only
Member Kennedy would find that employees have
no right to ask such questions . Here the Respondent
repeatedly denied them that right. How other than
by repeating their attempts to ask questions, by in-
sisting they had such a right, could they have exer-
cised the right? The disruption of the meeting was
not caused by the employees ' asking or attempting to
ask questions , but by Respondent's repeated asser-
tions that they had no such right and would not be
heard. Acquiescence by the employees in that posi-
tion would have meant foregoing the exercise of the
right to participate in the discussion of what con-
cerned them most directly; namely, whether or not
they would choose to be represented by a union for
the purposes of bargaining collectively rather than
individually.
I readily concede that, in exercising their rights in
this regard, employees may not disrupt the meeting
or attempt to preclude their employer from making
his presentation in an orderly way." But until the
lawful ground rules for the meeting are established,
some disruption necessarily will attend the employ-
ees' attempts to have their right to participate recog-
nized by their employer.
I have no quarrel with the view that the Act does
not preclude an employer from calling his employees
together as a "captive audience" to hear his anti-
union views and to inform them that he wishes to
present those views without being subjected to ques-
tions. If the employees acquiesce in that procedure,
there is nothing in the Act to prevent him from going
pany speeches by shouting names at the speaker, attempting to grab the
microphone , or interrupting the speaker and haranguing employees with
antiemployer statements . In contrast , in the instant case , the majority of the
employees merely requested an opportunity to ask questions or asserted the
existence of a right to do so ; other employees merely asked why some of
their coworkers had earlier been discharged , and three employees merely
stood without saying anything . Only five employees asked substantive ques-
tions ; and even these employees only asked such questions once or twice in
an effort to elicit information from the Respondent rather than to drown
out Respondent and turn the meeting into a forum for the presentation of
the Union's position.
i See fn. 10.
forward with the meeting. However, I strongly doubt
that, when challenged on that procedure, he can pro-
ceed on that basis. I believe his alternatives are either
to discontinue the meeting or to assure employees
that he will entertain their questions after he has fin-
ished his presentation,12 and if they are not satisfied
with that procedure to exclude them from the meet-
ing. He is thus assured of an opportunity to present
his views in an orderly way without infringing upon
his employees' rights to participate in the discourse
he has initiated concerning their exercise of the right
to join or refrain from joining a union. If he believes
that presentation of his views without being subject-
ed to immediate challenge is important to his case, he
can choose another forum such as the public address
system, letters, afterwork speeches to those willing to
come, and the like.
For the reasons set forth above, I would find that
the Respondent violated Section 8(a)(1) and (3) of
the Act by discharging the 22 employees named in
the complaint and would order them reinstated with
backpay from the date of their discharge.
MEMBER KENNEDY, dissenting in part:
I agree with Member Penello in affirming the deci-
sion of the Administrative Law Judge except with
respect to Doris Barber. I would not find that the
discharge of Barber was unlawful. My reasons are as
follows:
During a management speech concerning the
union organizing campaign at Respondent's Turners-
burg plant, Plant Manager Gray was about halfway
through his speech when employee Rebecca Watson
asked a question. Gray ignored the question and em-
ployee Doris Barber demanded that he answer it.
Gray said that the meeting was not a question-and-
answer session as he had stated before the com-
mencement of the meeting. Mrs. Barber continued to
demand an answer and Gray told her either to be
quiet or to return to her job with her supervisor. Mrs.
Barber refused to do either, so Gray adjourned the
meeting and discharged her. Watson, who had not
spoken up after her initial question, was not dis-
charged.
The Administrative Law Judge found that the dis-
charge of Barber was unlawful because she was not
engaged in any sort of concerted plot to disrupt
Respondent's meetings, but in a spontaneous protest
on behalf of all the employees to the statements
being made by the plant manager and to his ignoring
the question asked by another employee which ap-
peared to the employee to require an answer. He
concluded that Barber was therefore engaged in pro-
tected activity. In support of his decision, the Admin-
12 Cf. N.L.R.B. v. Weingarten, Inc., 420 U.S. 251 (1975); ILGWU v. Qual-
ity Manufacturing Company, 420 U.S. 276 (1975).
J. P. STEVENS & CO., INC. 855
istrative Law Judge relied on Prescott Industrial Prod-
ucts Company, 205 NLRB 51 (1973), enforcement de-
nied 500 F.2d 6 (C.A. 8, 1974). Chairman Miller and
I dissented in Prescott. We pointed out that in Living-
ston Shirt Corporation, 107 NLRB 400 (1953), the
Board had held that an employer who delivers a non-
coercive speech on company time and property has a
lawful right to deny the union an opportunity to
make a reply. Accordingly, we held that an employee
who insisted on a reply after being warned that a
reply would not be tolerated was guilty of insubordi-
nation and could lawfully be discharged. The court,
in denying enforcement of the Board's decision in
Prescott, upheld our view that the discharge was law-
ful. The court said, 500 F.2d at 10-11:
Where, as here, an employee's pro-union activity
is asserted to have interfered with management's
right to maintain order and respect and its right
to deliver an anti-union speech, the Board must
engage in what we have described as a "balanc-
ing process." The employees' rights are to be
weighed against the interests of management in
the pursuit of its lawful objectives... .
* * * *
We recognize, of course, with the Board, that
under the tensions and exacerbations experi-
enced during an organizing campaign the state-
ments of the parties may be both "bitter and
extreme." Similarly, during the processing of a
grievance or in the course of collective bargain-
ing, some leeway must be accorded employees
where, as the Board puts it they "exceed the
bounds of lawful conduct in a moment of ani-
mal exuberance." But before us we have no situ-
ation of mere exuberant conduct. The record
discloses . . . there was challenge and deliberate
defiance, repeatedly asserted before the assem-
bled employees, at a meeting lawfully convened
for the presentation of the employer's position.
Moreover this captive audience speech was not a
grievance or bargaining meeting where "employ-
ees must be placed in the status of equals in
dealing with management." [Citations omitted.]
The legality of the discharge in this case does not
turn on whether Barber was engaged in a plot to dis-
rupt Respondent's meeting, or on whether Respon-
dent was ignoring the question of another employee,
but on Respondent's right to deliver a lawful anti-
union speech on time for which it paid and on its
own property free of interruptions by those employ-
ees who might disagree with its views. The court in
Prescott upheld this right of an employer.
Barber's conduct was like that of Berry in Prescott
which the court found was not protected. I would
therefore find that Barber's refusal to desist from her
disruptive conduct constituted insubordination for
which Respondent could, and did, lawfully discharge
her. Hence, I would dismiss the allegation of the
complaint that Respondent unlawfully discharged
her.
DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Administrative Law Judge: On September
17, 1973, Textile Workers Union of America, AFL-CIO,
hereinafter called the Union, filed with the Regional Direc-
tor for Region 11 of the National Labor Relations Board,
hereinafter called the Board, a charge alleging that J. P.
Stevens & Co., Inc., hereinafter called Respondent, violat-
ed Section 8(a)(3) and (1) of the Act by discriminating
against 14 named employees on September 17, 1973 (Case
1 I-CA-5482). On September 24, 1973, the Union filed an-
other charge alleging that Respondent discriminated
against seven additional employees on the same date (Case
I1-CA-5489). On October 5, the Charging Party filed a
third charge alleging that Respondent violated Section
8(a)(3) by the discharge of an additional employee (Case
I1-CA-5509). On March 29, 1974, the Regional Director
on behalf of the Board's General Counsel, issued an order
consolidating the three above-referenced cases and a com-
plaint alleging the discriminatory discharge of 22 employ-
ees and additionally alleging four incidents of independent
violations of Section 8(a)(1). Respondent duly answered
the consolidated complaint, admitting the discharge of the
individuals named therein, but denying the commission of
any unfair labor practices. All of the charges to this point
concerned incidents that took place at Respondent's plants
named Delta 2 and 3, located at Wallace, South Carolina.
On November 22, 1972, the Union had filed a charge
alleging discrimination against an employee , Doris Barber,
by the Respondent at its Turnersburg, North Carolina,
plant on November 20, 1972 (Case I I-CA-5145). On June
4, 1974, the said Regional Director amended the consoli-
dated complaint, adding an allegation concerning the dis-
charge of employee Barber at the Turnersburg plant on
November 20, 1972. Again Respondent filed an answer ad-
mitting the discharges but denying that they were violative
of the Act.
On March 19, 1974, the Union filed yet another charge
(Case I I -CA-5682) alleging that Respondent at its Roa-
noke Rapids, North Carolina, plants discriminated against
two employees in February and early March 1974. The
said Regional Director again amended the complaint add-
ing to the consolidated cases Case I1-CA-5682 and adding
three additional allegations of interrogation at the Roa-
noke Rapids plant No. 1, but not adding the additional
8(aX3) allegations alleged in the charge . Once again Re-
spondent duly filed an answer admitting the discharges
and denying the commission of any unfair labor practices.
On the issues thus joined , the matter came for hearing be
fore me in Rockingham, North Carolina, on September 24,
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
25 and 26, 1974. All parties were present and represented
by counsel and had an opportunity to call and examine
witnesses and to adduce relevant and material evidence. At
the close of the hearing, the parties waived oral argument.
Briefs have been received from all parties. On the entire
record in this case and in consideration of the briefs, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
It is alleged and admitted that Respondent is a New
York corporation with facilities located in the States of
North Carolina and South Carolina, including those con-
cerned herein , where it is engaged in textile manufacturing.
Respondent annually receives goods and materials from
points directly outside the State of South Carolina valued
in excess of $50,000. It also annually receives goods and
materials from points directly outside the State of North
Carolina valued in excess of $50,000. Respondent also
ships from both its North Carolina and South Carolina
plants, to points outside those States, products valued in
excess of $50,000.
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
An election was scheduled among the Respondent's em-
ployees at its facilities at Wallace , South Carolina, to be
held on September 19, 1973. On the Sunday preceding the
election at a union meeting , the union organizers had dis-
tributed Xerox copies of a page from "U.S. News and
World Report" of August 20, 1973, containing a paragraph
under the heading "What you as a businessman can and
cannot do as a result of recent court and administrative
decisions ." The paragraph states as follows:
YOU CANNOT, after making a speech against union orga-
nizing to your employees on company time and on
company property, fire a worker for insubordination if
he insists on the right to ask you questions according
to the National Labor Relations Board . Ducking the
issue of whether the employer had to reply to such
questions, the Board says that the workers' refusal to
sit down or leave was protected activity under the
Taft-Hartley Act.'
There was some discussion about the meaning of the news
article and at least one list of questions was formulated by
1 The magazine article appears to have reference to the decision of the
Board in the case of Prescott Industrial Products Company, 205 NLRB 15
(1973), which was issued on July 26, 1973.
various employees and passed around among the prounion
employees of Respondent.
On September 17, 1973, 2 days prior to the election the
plant managers of the two affected plants , Delta 3 and
Delta 2 , held meetings with all shifts of employees in their
respective plants . Probably the first speech was at plant 3
by Kelly Traynham , the plant manager . Shortly after he
commenced his speech an employee , Campbell Walls, rose
and asked a question . Traynham told him that he had a
speech to give and Walls was not going to ask his question
and told him to sit down . Walls asked another question
and Traynham kept talking . Two other employees then
rose and each asked questions which Traynham ignored.
Traynham continued to the end of his speech and ad-
journed the meeting . No steps were taken against the three
employees , Walls, River, and Thredgill , One of the employ-
ees who stood up apparently waved a copy of the magazine
article and stated that he had a right to ask questions.
The next speech in point of time was given at Delta 2 by
its manager, C. B. Young , at about 8 : 30 in the morning.
Young had no sooner started speaking than an employee,
Moses Dixon , arose asking for an opportunity to speak.
Young told Dixon that he had the plant shut down and
that he wanted to continue the meeting . Numerous other
employees stood up all around the room , each of them
asking questions or making comments either about the
Company 's antiunion campaign or about the questions
that other employees were asking . Although each of the
employees concerned testified that there was no substantial
disturbance , it is clear that a number of people were talking
at once at all times . After a few minutes of this, Young
adjourned the meeting and each of the employees who had
been on his feet was called into Young's office and dis-
charged . On this occasion Moses Dixon , James Grooms,
Harold Walker, Robert Perkins , David C. Johnson, Paul
Hoffman , Jimmy Hardison , and Timothy Bennett were
discharged.
Shortly after the discharge of the eight men named
above, Young again called employees together for a meet-
ing and a similar incident took place . On this occasion
after a few minutes Young , having asked the employees to
sit down and be quiet on at least four occasions, again
adjourned the meeting and six more employees Cleo Mor-
rison , Robert (Shorty) Murphy , Cleven Jenkins , John Wil-
son, Albert Marshall , and Tyrone Merriman were dis-
charged . A few minutes later Young completed his speech
without interruption.
When the second shift commenced , Young called the
employees together and was interrupted with his first
words by Isiah Kelly , who stood and asked if he could ask
a question . Young answered that the meeting was for
Young to make a speech and asked Kelly to allow him to
continue . Kelly responded that he felt that the employees
had a right to ask questions and asked Young to explain
why employees at another plant had gone on strike. Young
again asked Kelly to sit down , but Kelly answered that he
was going to ask questions and he felt that the Labor
Board would rule that employees had a right to ask ques-
tions . By this time two other employees , Kenneth Cassidy
and Henry David , were asking questions or were asking for
permission to ask questions; Young repeatedly asked them
J. P. STEVENS & CO., INC.
to sit down and be quiet and they failed to do so, as did
Richard Hinson, who arrived late and never did sit down
but commenced asking questions as soon as he arrived. On
this occasion Hinson held up a copy of the news magazine
article and said that the employees had a right to ask ques-
tions and that he had a paper to prove it. Young again
adjourned the meeting ; Kelly, Cassidy, Henry David, and
Hinson were thereupon discharged by Personnel Manager
Greene.
The second-shift meeting was reconvened. Again Young
was interrupted by employees who stood and demanded to
be heard, this time Jerome Hooks and James McLean. In
this instance the pattern changed a little ; Hooks ' interrup-
tion consisted of requesting 5 minutes before or after the
speech to ask questions while McLean kept asking for per-
mission to ask questions stating that he wanted to talk for
the Union. Greene removed both of these employees from
the meeting and discharged them while Young completed
the speech.
Young convened the third-shift meeting shortly after
midnight. After Young talked for 15 or 20 minutes employ-
ee McCall stood up and asked permission to ask a ques-
tion. Young ignored him. McCall walked up to the front of
the room and again asked whether he could ask a question.
Young answered that it was his speech, he was not there to
answer questions; and Greene walked up to McCall and
said , "Why don't you let the man finish his speech?" Mc-
Call answered that he wanted to talk for the Union, he had
a right to speak, and he wanted about 5 minutes to talk for
the Union. Young asked him to sit down, McCall refused
to do so and asked for 5 minutes to talk for the Union
which was refused . Greene escorted him out of the meeting
and discharged him.
Meanwhile, back at plant 3, after the initial meeting as a
result of which no one was discharged, Traynham held a
meeting with the second shift. He was perhaps a third of
the way through the speech when employee Tommy Cassi-
dy attempted to argue with the statements Traynham was
making in his speech. Traynham asked Cassidy to sit down
and be quiet, but when Traynham resumed his speech Cas-
sidy again started talking. Traynham pointed out that Cas-
sidy did not have to stay in the meeting, he could get up
and leave; but Cassidy continued to talk while Traynham
was talking . Traynham asked Cassidy several times to sit
down. Cassidy asked how much Traynham was paying
lawyers to get up and tell a bunch of lies and told Trayn-
ham that he should not interfere with the employees' at-
tempt to talk in the meeting referring to a statement made
by Plant Manager Tapp, who was no longer employed by
Respondent , at the representation hearing .2 Traynham ad-
journed the meeting and Greene discharged Cassidy. An-
other employee, Birch, had stood up without speaking; he
was advised by Greene that he would not be allowed to
disrupt the meeting and that he did not have to attend it.
Birch did not attend the meeting when it was resumed.
2,In the representation meeting Plant Manager Tapp , who had managed
Delta 2 , testified that the Company had no restrictions on any people at any
time who wanted to ask any questions ; that anyone in all employee meet-
ings . foremen meetings , or group meetings may ask a question or participate
if they feel inclined to do so , including the meetings with the regular hourly
paid employees.
B. The Turnersburg Incident
857
Almost a year before these incidents took place, at the
Turnersburg, North Carolina, plant, during a management
speech concerning the union organizing campaign, Plant
Manager Gray was about halfway through his speech when
an employee, Rebecca Watson, asked a question. Gray ig-
nored the question and Doris Barber demanded that he
answer it. Gray announced that the meeting was not a
question-and-answer session , which he had stated before
the meeting commenced. Mrs. Barber continued to de-
mand an answer and Gray told her either to be quiet or to
return to her job with her supervisor. Mrs. Barber refused
to do either. Gray adjourned the meeting and discharged
Mrs. Barber. Rebecca Watson, who had not spoken up
after her initial question, was not discharged.
C. Discussion and Conclusions
All parties have based their arguments on the decision of
the Board in Prescott Industrial Products (supra). The Re-
spondent places reliance on the decision -of the United
States Court of Appeals for the Eighth Circuit refusing to
enforce the Board's Order. The court stated that the Board
must engage in a "balancing process" and concluded that
on the court's balancing of the rights and obligations of the
parties, the employer had a right to discharge the employee
therein. Of course an Administrative Law Judge is bound
to follow the Board's rule rather than that of the court
unless the Board has either indicated its acquiescence in
the rule as recited by the court or the Supreme Court has
spoken on the subject. Neither such contingency exists
with regard to the rule in Prescott.
The key language of the Board in Prescott is as follows:
The Board has long held that there is a line beyond
which employees may not go with impunity while en-
gaging in protected concerted activities and that if em-
ployees exceed the line, the activity loses its protec-
tion. That line is drawn between cases where
employees engaged in concerted activities exceed the
bounds of lawful conduct in a moment of animal exu-
berance or in a manner not motivated by improper
motives and those flagrant cases in which the miscon-
duct is so violent or of such a character as to render
the employee unfit for further service.
In agreement with the Administrative Law Judge we
find that Berry did not cross that line in this case.
Berry's conduct was not violent. There is no evidence
it was engaged in for improper motive or in bad faith.
Nor was Berry's activity of such a character as to ren-
'derhim unfit for further service. Berry's activity came
after the speech while employer was passing out
"guarantees" and at -.most- can be characterized as
mildly disruptive. Moreover, although Berry protested
that he should be permitted to ask the question, he did
not attempt to do so in face of Krengel 's instructions
to the contrary. Accordingly" we find that Berry's con-
certed activity was protected - and therefore
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's discharge of Berry for that activity was
unlawful.
It is readily seen that what the Board has drawn is not
one line but two. The first is concerned with the excess of
employees who in a moment of animal exuberance or in a
manner not motivated by improper motives exceed the
bounds of lawful conduct and those who exceed the
bounds of lawful conduct motivated by improper motives
or deliberately or concertedly.
The second line is drawn between "those flagrant cases
in which the misconduct is so violent or of such a character
as to render the employee unfit for further service" and
those cases in which the misconduct is not of such violence
or of such character as to render the employee unfit for
further service . Clearly the interstice between the two lines
is very broad and in my opinion the instant case falls be-
tween them.
The phrase "moment of animal exuberance" bears the
connotation of unpremeditated or impulsive conduct. In
the instant case it is clear that the conduct was neither
unpremeditated or impulsive, although perhaps not com-
pletely planned. The record reveals that the "right" of em-
ployees to ask questions in the employer 's meeting was dis-
cussed and copies of the magazine article distributed at the
union meeting on the preceding Sunday and that lists of
questions were prepared and distributed. Similarly the
phrase "in a manner not motivated by improper motives"
can scarcely be applied to the situation at the Wallace
meetings . It appears quite obvious, and I find, that the
motivation of the employee speakers was to disrupt the
Employer's meeting and indeed to turn it into a union
meeting. The questions and comments directed at Young
and Traynham were argumentative. The managers had a
choice of either answering the questions and listening to
the arguments or of adjourning the meetings, since the em-
ployee speakers were loud and distracting.
With regard to the second line there is no evidence that
the misconduct was violent in any regard. The alleged dis-
criminatees certainly talked loud, loud enough to be heard
over the public systems being used by the plant managers,
but the only evidence of shouting or boisterous conduct is
that attributed to an unidentified individual in the back of
the room at one of the meetings who shouted "black pow-
er" and someone else who shouted "it's union time." In no
case that I know of has such conduct been found so violent
as to render an employee unfit for further service. Finally,
with regard to the concept of conduct "of such a character
as to render the employee unfit for further service," such
conduct has been the subject of a number of Board deci-
sions , frequently against the backgrounds of the refusal of
an employer to reinstate strikers who engage in unlawful
conduct . However, the Board illustrates its meaning with a
citation of two cases, Bettcher Manufacturing Corporation,
76 NLRB 526 (1948), and Socony Mobile Oil Company,
Inc., 153 NLRB 1244 (1965). In the Bettcher case, dealing
with the discharge of an employee because of remarks
made by him at a collective-bargaining negotiation before
his fellow employees, the Board found discrimination in
the discharge of the employee, who suggested that the em-
ployer was not losing money as the employer contended
and suggested that books could be juggled to show a loss
when no loss was incurred. There the respondent dis-
charged the employee giving as a reason that the employee
had insulted the president of the company by, in effect,
calling him a crook and a liar. This case surely was an
example of the "animal exuberance" aspect of the situation
and, in addition, the Board found that the discriminatee in
Bettcher achieved further protection by the fact that his
incontinent language was delivered during the heat of a
negotiating session.
In the Socony case cited by the Board, the respondent
discharged an employee who as a representative of the
union, in his nonworking time, complained to the Coast
Guard of allegedly unsafe operation of one of the
Respondent's ships. The Board found the complaint to the
Coast Guard protected concerted activity and that the sus-
pension of the activist violated Section 8(a)(1) and (3).
In other cases the Board has more fully explored the
meaning of the language by example, but they are of little
aid in our determination herein. For instance, in Indiana
Gear Works, 156 NLRB 397 (1965), enforcement denied
371 F.2d 273 (C.A. 7, 1967), the Board found that cartoons
drawn by an employee which the employer considered to
be of an offensive character did not remove the employee
from the protection of the Act. There the Board spelled out
the rule thus:
The criteria applicable to cases such as the instant one
is whether the employees in the course of concerted
activities engaged in such flagrant, violent, serious, or
extreme conduct as to render them unfit for further
service.
This does not help much with the specific problem be-
fore us other than to add additional adjectives. In Thor
Power Tool Company, 148 NLRB 1379 (1964), enfd. 351
F.2d 584 (C.A. 7, 1965), the Board held that it was unlaw-
ful to discharge an employee who called his employer a
foul name after a grievance meeting. In this case the Board
decided, in view of the line of decisions that employees
could go farther in their excession of the bounds of lawful
conduct in negotiating or grievance sessions , that the foul
name after a grievance meeting was part of the res gestae of
the protected activity in the negotiating session. This res
gestae principle found a little support in Pacific Maritime
Association 192 NLRB 338, 349 (1971), where the Trial Ex-
aminer found that shouting and cursing undertaken by an
employee who was engaged in a protected protest, against
what he deemed to be a complaint that the contract was
being disregarded, was part of the res gestae and that the
beating administered to the employee was administered be-
cause of his having engaged in protected concerted activi-
ties even though he had shouted and cursed in the course
of such activities.
These cases, are of little help to us. One, however, cited
and discussed in Prescott, Hicks Ponder Company, 168
NLRB 806 (1967), gave rise to my comment in that case
that "clearly concerted activities are protected unless the
activities result in or from conduct which is violent or of
such a disruptive nature as to render the employee unfit for
further service." In the Hicks Ponder case four employees
who engaged, in concert, on a course of conduct, which the
J. P. STEVENS & CO., INC.
Trial Examiner found to be "fraught with malice ," calcu-
lated to disrupt the employer's meetings and dilute their
legitimate purpose, lost the protection of the Act by their
conduct. This appears to me to be precisely what happened
at the Delta 2 and Delta 3 meetings . Whatever "fraught
with malice" may mean it is clear here and pointed out
with clarity in the brief of the Charging Party, the employ-
ees met malice with malice by their activities at the union
meeting. The prounion employees, obviously apprised by
their Union of the Employer's antiunion stand, and I have
no doubt aware of the seemingly endless train of decisions
in which their employer had been found guilty of interfer-
ence , restraint , coercion , and discrimination against em-
ployees engaged in union activities , were determined, as in
Hicks Ponder, to disrupt the Employer's meetings and di-
lute their legitimate purpose . This was the whole purpose
of their questioning , not the dissemination of knowledge or
information as the Union and the General Counsel argue
in their briefs . Indeed some of the employees testified they
did not know what questions they were going to ask as they
stood calling for the attention of the speakers and demand-
ing the floor, but they knew that they would have been able
to come up with a question if they had had an opportunity
to ask it. I find that as in the Hicks Ponder case the employ-
ees here went beyond the right of employees to ask ques-
tions , elicit information , or present a grievance because
their questions remained unanswered . The Employer has a
right to present his side and to make his arguments. The
Union has no more right to the sole occupancy of the fo-
rum than the Employer. To have permitted the employees
to completely disrupt the Employer's meetings , with the
option of either stopping the meeting or spending the
Employer's time in answering what were unquestionably
"loaded" questions from the union enthusiasts on the floor,
would substantially negate the Employer 's rights to present
its arguments . I find that the Employer , having warned
each of the employees so engaged at least three times to sit
down and be quiet , had a right to discharge the obstructive
employees.
Additional facts raise additional issues . Timothy Bennett,
at the first meeting on the first shift, and Albert Marshall,
at the second meeting of the first shift , were discharged and
no evidence exists on the record that they said anything.
Both stood up with the other employees who were shouting
their questions or comments , but there is no evidence that
they said anything. There ,is no evidence that Respondent
had any basis on which to distinguish them from the other
employees : Additionally, John Wilson , at the second meet-
ing of the first shift , remained standing, although he had
just gotten up when Young adjourned the meeting, and
accompanied the other questioning employees to Greene's
office . Apparently he made no attempt to distinguish him-
self from Morrison , Murphy, Jenkins, and Merriman who
admittedly had been asking questions and making com-
ments . The General Counsel would apparently contend
that because these people did not join in the general talking
match that had preceded their discharge a distinction
should have been drawn with regard to them. I think this
position rather begs the question . The record reveals clear-
ly that the interruption of the meetings was a concerted act
of the prounion employees . By standing , especially against
859
the background of Young urging the protesting employees
to take their seats and to remain seated , these employees
identified themselves with the protestants and indeed their
standing added to the - confusion . I see them in no better
position than the employees who insisted on asking ques-
tions and I can see no basis for a distinction with regard to
the legality of their discharge. I shall recommend that the
complaint, insofar as it alleges the discharge of the employ-
ees at the Delta 2 and Delta 3 facilities , be dismissed.
The discharge of Doris Barber at the Turnersburg plant
a year before the incidents discussed above presents a com-
pletely different picture. There is no evidence here that
Doris Barber was engaged in any sort of a concerted plan
to disrupt the Employer's meetings. Becky Watson, anoth-
er employee , rose and asked a- question and was ignored.
Doris Barber rose and insisted that Becky Watson 's ques-
tion should be answered and that the employees had a
right to an answer from the manager who was making a
speech. In this case, unlike the situation at the Delta plants,
there was no prior assurance from the Union that the em-
ployees had a right to ask questions and no preliminary
gathering together of employees to disrupt the meeting.
Clearly Mrs. Barber's reaction was, like the reaction of
Berry in the Prescott case, a spontaneous protest on behalf
of all the employees to the statements being made by the
plant manager and to his ignoring of the question asked
which appeared to the employee to require comment by the
plant manager..I find that the discharge of Doris Barber
interfered with, restrained, and coerced- the employees in
the exercise of their protected rights and discriminated
against employees, and specifically Doris Barber, because
of her protected activity. Accordingly, I find that her dis-
charge violates Section 8 (a)(1) and (3) of the Act.
D. The 8(a)(1) Allegations
David Thredgill testified that his supervisor, Monroe
Gaskins, asked him for a copy of the union leaflet that had
been passed out by Thredgill at the gate of the plant.
Thereafter, Gaskins asked Thredgill whether he believed
what the union people were telling him. Thredgill answered
that he did and suggested that he would vote for the Union
because of the way he had been treated by supervisors and
leadmen . Later, Gaskins asked Thredgill why he did not
talk to him the way he had before the union organization
and Thredgill told him that he had no confidence in Gas-
kins and that Gaskins would talk to the other supervisors
and leadmen about what Thredgill had to say. Gaskins
then said if the Union came in the plants in the area would
begin to pull out, there would not be any attraction for new
industry, and "You have the welfare of your grandchildren
to think about, what do you think about that?" At this
point the conversation broke up. Gaskins substantially cor-
roborated everything Thredgill said with one exception-
he denied saying anything about present plants moving out
of the area and insisted that he said only that no new
plants would move into the area if unions came into the
area or saturated the area. On balance I credit Thredgill.
Gaskins' testimony revealed-that he had little independent
recollection of his conversations , certainly less than that
exhibited by Thredgill, and I found nothing in the testimo-
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ny of either to cause me to believe that they were telling
less than the truth as they recalled it. Accordingly I credit
Thredgill because he appears to have a better recollection.
I find that the remarks attributed to Gaskins by Thredgill
are violative both as interrogations and as threats that the
plant would move out if the employees brought in the
Union.
Wayne Mead testified that at the Roanoke Plant 1,
which is at Roanoke Rapids, sometime between Christmas
and Thanksgiving 1973, he went into the office to pick up
his check . His supervisor, George Evans, was in the office
as well as Morris Porch , a third-shift supervisor, and a
third person whom Mead could not identify. The unidenti-
fied person, while Evans and Morris were getting Mead's
check, asked him some questions about what the Company
had done for him and told him that they had given him a
job and put clothes on his back . He also asked Mead if he
was union and Mead said he was 100 percent for it. The
interrogator went on to ask who else was for the Union on
the third shift and Mead answered with the names of other
employees.
The General Counsel contends that the third person who
asked the questions was an unidentified supervisor and
predicated that conclusion on Mead 's testimony that the
unidentified person had a shirt and tie on . There is no
evidence as to the custom in the Roanoke Rapids plants
about outsiders being present in the plant during working
hours nor about the dress habits of the various classifica-
tions of employees who work at that plant . There is no
evidence that Evans was within hearing distance at the
time the questions were asked and answered , so there can
be no question on the record before me of condonation or
adoption by the Respondent of the questions asked of
Mead . I shall recommend the complaint be dismissed inso-
far as the Roanoke Rapids allegation is concerned . No evi-
dence ties Respondent to the interrogation about which
Mead testified.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above , occurring in connection with its operations de-
scribed in section I, above , have a close , intimate , and sub-
stantial relationship to trade , traffic , and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow there-
of.
CONCLUSIONS OF LAW
1. J. P. Stevens & Co., Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Textile Workers Union of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By discharging and refusing to recall Doris Barber,
Respondent discriminated with regard to the hire and ten-
ure and terms and conditions of employment of its employ-
ees, thereby discouraging membership in a labor organiza-
tion and engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(3) of the Act.
4. By the discharge of Doris Barber and by coercively
interrogating and threatening employees that Respondent's
plant would move out of the community if the Union suc-
ceeded in organizing it, Respondent interfered with, re-
strained , and coerced employees in the violation of Section
8(a)(l) of the Act.
5. Respondent did not violate the Act by the discharges
of the employees at its Delta 2 and 3 plants in Wallace,
South Carolina.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. Having found
that Respondent has discharged and failed to recall Doris
Barber , I shall recommend that Respondent offer her rein-
statement to her former job or if her job no longer exists to
a substantially equivalent job and make her whole for any
loss of earnings she may have suffered as a result of the
discrimination against her by payment to her of a sum of
money equal to that which she normally would have
earned from the date of her discharge to the date of a valid
offer of reinstatement , less net earnings during such period,
to be computed in the manner prescribed in F. W. Wool-
worth Company, 90 NLRB 289 (1950), and with interest as
prescribed in Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
Upon the basis of the foregoing facts, conclusions of
law, and the entire record in this proceeding and pursuant
to Section 10(c) of the Act , I hereby issue the following
recommended:
ORDERS
J. P. Stevens & Co., Inc ., Wallace , South Carolina, and
Turnersburg, North Carolina, its officers , agents , succes-
sors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership and activities on behalf of
Textile Workers Union of America , AFL-CIO, or any
other labor organization by discriminating in regard to the
wages , hours , or working conditions of its employees be-
cause of their activities on behalf of said labor organiza-
tion.
(b) Coercively interrogating its employees concerning
their activities on behalf of the above-named labor organi-
zation or any other labor organization or threatening em-
ployees that the plant will move from the community if the
Union is selected by the employees.
J In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections there shall be
deemed waived for all purposes.
J. P. STEVENS & CO., INC.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights to self-organization to form, join, or assist any labor
organization, to bargain collectively through representa-
tives of their own choosing, to engage in any other concert-
ed activities for the purposes of collective bargaining or
mutual aid or protection or to refrain from any or all such
activities.
2. Take the following affirmative action which is de-
signed to effectuate the policies of the Act:
(a) Offer to Doris Barber immediate and full reinstate-
ment to her former job or, if such job no longer exists, to a
substantially equivalent job, and make her whole in the
manner set forth in the section of the Decision entitled
"The Remedy."
(b) Preserve and upon request make available to the
Board or its agents, all payroll records, social security pay-
ment records, timecards, personnel records and receipts,
and all other records necessary to analyze the backpay due
under the terms of this recommended Order.
(c) Post at its plants in Turnersburg, North Carolina and
Wallace, South Carolina, copies of the attached notice
marked "Appendix."4 Copies of said notice on forms pro-
vided by the Regional Director for Region 11, after being
duly signed by its representative, shall be posted by Re-
spondent immediately upon receipt thereof and be main-
tained by it for 60 consecutive days thereafter in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
Respondent to ensure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 11, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
4In the event 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
861
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the National Labor Relations
Act, and has ordered us to post this notice and to keep our
word about what we say in this notice.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative
of their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any and all these things.
WE WILL NOT do anything that interferes with these
rights.
More specifically,
WE WILL NOT discourage membership in Textile
Workers Union of America, AFL-CIO, or any other
labor organization by discriminatorily discharging any
employee because of his activities on behalf of said
labor organization.
WE WILL NOT coercively interrogate our employees
about their union activities or threaten that the plant
will be moved if they select the Union to represent
them.
WE WILL reinstate Doris Barber to the job she for-
merly held or if that job no longer exists to a substan-
tially equivalent job and WE WILL make her whole for
any loss of pay she may have suffered as a result of
our discrimination against her, by payment to her the
amount of money she lost as a result of our action.
J. P. STEVENS & CO., INC.