Softexture Yarns, Inc.

National Labor Relations Board - Board Decisions

Aug 23, 1960

128 N.L.R.B. 764 (N.L.R.B. 1960)

764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
formed and no college degree is required if the individual is creative
and has mechanical ability. The draftsmen I detail and complete the
drawings and layouts which the designers or engineers prepare.
Employees without a formal academic degree also do some of this
work. Since the work performed by employees in the foregoing
classifications does not require knowledge of an advanced type in
fields of science or engineering customarily acquired by a prolonged
course of specialized intellectual instruction and study in an institu-
tion of higher learning, we find that these are not professional em-
ployees.3 As the work of the employees in these classifications does,
however, involve the use of independent judgment and requires the
exercise of skills learned from specialized training, we find in agree-
ment with the Petitioner, that they are technical employees." In view
of the number of employees throughout the plant in such classifica-
tions, the Petitioner would not have an adequate showing of interest
in a plantwide technical unit, even if these were the only classifica-
tions to be included in such a unit. Accordingly, we need not con-
sider whether any of the other classifications in dispute are or are not
also technicals.
Consequently, as the Petitioner does not have a sufficient showing
among the employees in any unit that might be appropriate, we shall
dismiss the petition.
[The Board dismissed the petition.]
Western Electric Company, Incorporated , 126 NLRB 1346.
Litton Industries of Maryland, Incorporated, 125 NLRB 708; Gary (Steel Products
Corporation, 116 NLRB 1192 , 1195 ( draftsmen ) ; Westinghouse Electric Corporation,
118 NLRB 1043, 1045-1046 ( designers).
Softexture Yarns, Inc. and Robert Blakely
Softexture Yarns, Inc. and Theodore D. Freeman . Cases Nos.
22-CA-356 and 2f-CA-359. August 23, 1960
DECISION AND ORDER
On December 30, 1959, Trial Examiner Ramey Donovan issued his
Intermediate Report 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 copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.'
'Because in our opinion the record , exceptions, and brief adequately set forth, the
issues and position of the parties, the Respondent 's request for oral argument is hereby
denied.
128 NLRB No. 106.
SOFTEXTURE YARNS, INC. 765
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 Inter-
mediate Report, exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, only insofar as consistent with our deci-
sion herein.
The Trial Examiner found that the Respondent violated Section
8 (a) (3) and (1) of the Act by discharging employee Robert Blakely
on January 16, 1959, for having engaged in protected activity. As
more fully described in the Intermediate Report, the protected activity
in question was related to Blakely's conduct in pursuing the grievance
of employee Beatrice Matthews against her supervisor, Solomon
Foster, on account of his having made an obscene remark concerning
her in the plant on January 9. Blakely was spokesman for the group
of employees who had signed the grievance in seeking action from
both the Respondent and the Union. On January 13, at a meeting
of this group with Wadell Moore, the general shop chairman of the
Union, Blakely stated that if the employees knew of Moore's reluctance
to process the grievance, they would walk off their jobs or that they
would walk off their jobs if he (Blakely) told them. The grievance
was finally accepted by Moore and formally presented on January 14
to Respondent's general manager, Edward Epstein, who promised to
investigate.
The Trial Examiner found that Blakely was engaged in certain
other conduct which had a bearing upon his discharge. Blakely was
one of three yarn testers employed at the plant. The two other testers
credibly testified that over a period of several months Blakely had
asked them to limit their production. On January 12 or 13, Brooks,
the assistant manager, overheard the two testers discussing what
Blakely had told them about limiting production. On January 15,
the day before Blakely's discharge, Brooks spoke to Gilliam, one of
the testers, about a report he had that she would not come to work the
following Saturday, as ordered. Gilliam related to Brooks that
Blakely had told her not to work on Saturday because he (Blakely)
had more seniority and would work in her place, and also advised
Brooks that Blakely had spoken to her about doing too much work and
work other than testing. Brooks reported this information imme-
diately to General Manager Epstein, along with a request that Blakely
be discharged. Also on January 15 or 16, Shop Chairman Moore had
conversations with Epstein concerning, among other things, Blakely's
activity in setting workloads about which Moore had learned in his
investigation of the Matthews' grievance. In addition, Moore revealed
to Epstein Blakely's mention of a strike, having reference to Moore's
January 13 meeting with the employees on the grievance. Epstein
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that on learning of the "strike threat" (the existing contract
with the Union contained a no-strike clause), "this was the straw
that broke the camel's back." Epstein discharged Blakely on January
16, allegedly, inter alia, for being a "rabble rouser," because he
breached the contract, left his work station, and lied to a superior.
Certain of the specific grounds advanced by the Respondent were
rejected by the Trial Examiner for reasons indicated in the Inter-
mediate Report. He found, as causes for the discharge, Blakely's
conduct (1) in connection with the Matthews' grievance, (2) in men-
tioning the possibility of a strike, (3) in seeking to set production
quotas, and (4) in telling Gilliam not to work on Saturday. While
the Trial Examiner considered the conduct in items (3) and (4) as
unprotected activity, he concluded that Respondent had violated the
Act because Blakely's conduct in connection with the Matthews griev-
ance, and in mentioning the possibility of a strike, constituted pro-
tected activity,2 and was a "substantial" reason for the discharge.
We do not agree with the relative weight assigned by the Trial
Examiner to the various causes of the discharge. Blakely's conduct
in attempting to set workloadis and in telling an employee not to
report for work as ordered are, we believe, such serious offenses in a
plant that it is unreasonable for us to assume, absent clear evidence
of the fact, that such conduct would be tolerated and not result in
immediate discharge. It is significant that Epstein, who had the
sole authority to discharge, first learned of Blakely's unprotected
activities on January 15, and discharged him before he commenced
work the next day. We note, moreover, that there is no evidence of
hostility or prior discrimination on the part of the Respondent toward
its employees. Accordingly, in our opinion, the General Counsel has
failed to prove that Blakely was not discharged for legitimate cause.
We shall therefore dismiss the complaint.
[The Board dismissed the complaint.]
MEMBER BEAN took no part in the consideration of the above De-
cision and Order.
9 The Trial Examiner reasoned that Blakely 's "strike threat" ( in alleged breach of
the no-strike clause of the contract ) was merely argumentation in the context of an
intraunion discussion and part of a course of protected activity . In view of our ultimate
decision herein , we find it unnecessary to pass on this question.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a duly issued complaint and the answer of the Respondent , Softexture
Yarns, Inc., a hearing was held in Newark , New Jersey , on September 28, 29, and
30, 1959 , before the duly designated Trial Examiner . The complaint alleges and
the answer denies that on January 16 and 19 , 1959 , Respondent discharged em-
ployees Blakely and Freeman, respectively , because they engaged in or were sus-
pected of engaging in protected union and concerted activity including the processing
of grievances and because the said employees were suspected of having joined or
SOFTEXTURE YARNS, INC. 767
assisted or being sympathetic to United Textile Workers of America, AFL-CIO,
herein called United.
All parties were represented by counsel and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to introduce evidence, to argue
orally upon the record, and to file briefs.
Based on the entire record in the case, and from observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Softexture Yarns, Inc., maintains its principal place of business and office at
Newark, New Jersey, where it engages in the processing of yarns. During the past
year Respondent manufactured finished products valued in excess of $1,000,000.
Goods valued in excess of $700,000 were sold and shipped to Northern Yarn Mills
and this latter company sold and shipped goods valued in excess of $750,000 in
interstate commerce from its premises in New Jersey to points outside the State.
During the past year the Respondent sold and shipped goods valued in excess
of $50,000 from its Newark, New Jersey, plant to points outside the State.
It is found that Respondent is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Dyers and Finishers Local 1932 , Textile Union of America , AFL-CIO, Textile
Workers Union of America , AFL-CIO, and United Textile Workers of America,
AFL-CIO, are labor organizations within the meaning of Section 2 (5) of the Act.
M. THE ALLEGED UNFAIR LABOR PRACTICES
On January 9, 1959, during the third shift of Respondent's operations,' Solomon
Foster, a leadman, was engaged in physically forcing his attentions upon Beatrice
Matthews, who operated a crimping machine on that shift and who was under
Foster's supervision. As Matthews evaded him, Foster invoked the attention of
the other men on the same floor (designated as the second floor) by stating, "Hey,
fellows, I want to tell you something about this here girl. She's ... ." The
statement made by Foster about Matthews, as set forth in the transcript of testi-
mony but not repeated in full herein, was extremely vulgar and obscene and re-
ferred to a matter of intimate female hygiene?
Being highly upset by Foster's conduct, Matthews went over to where Robert
Blakely, a yarn tester, worked. She asked Blakely whether she had to tolerate
such treatment from Foster. Blakely advised her that she could take up the matter
with Freeman, the shop steward for the floor.3 Matthews asked Blakely to get
Freeman and he did so. Blakely returned and told Matthews that Freeman would
be down shortly. Matthews wrote out her grievance about Foster and she and
Blakely signed it. She gave it to Freeman when he came to her. Freeman asked
Matthews if there were any other witnesses to the occurrence and she gave him
the names of employees Lucas, Ware, White, and Brown. Freeman secured the
signatures of Lucas, Ware, and White on the grievance .4 That morning, shortly
'The hours of the third shift were 11 p.m. to 7 :30 a.m.
s Matthews had commenced working for Respondent in November 1958. The Trial
Examiner credits her testimony that Foster had been physically forcing his attentions
on her during the time she worked for Respondent. She had reported this to Moore, the
general shop chairman of the Union, as early as November and December 1958. She
also reported Foster's conduct in December to Respondent's bookkeeper, Elizabeth Matt,
and to representatives of management. Moore, a witness called by Respondent, admitted
that Matthews had told him about Foster early in her period of employment. Blakely,
who worked on the same floor, on the same shift, and near to Matthews' machine, testified
that Foster engaged in forcing himself physically into intimate contact with Matthews
almost nightly. Foster was Matthews' immediate supervisor. The Trial Examiner
credits Matthews' testimony that she never saw Foster outside the plant or otherwise
encouraged him.
s Moore was general shop steward who worked on the first shift. Freeman was the
steward for the third shift and worked on the third floor.
4 The record Is unusually replete with controverted testimony and with testimony
showing variances . The foregoing and other findings are based on a careful appraisal
of all the witnesses and the evidence adduced.
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after 6 a.m., the aforedescribed written grievance was presented by Freeman to
Mikowski, Respondent's assistant superintendent of backwinding and twisting.
Blakely also came to Mikowski's office that morning at about 6:30 a.m. and
discussed the grievance briefly with Mikowski.
After being apprised of the grievance as aforedescribed, Mikowski summoned
Matthews to his office. He asked her what had happened and she told him. Mikow-
ski said that he was reluctant to go through with the grievance because it would
"bring a lot of dirty linen out of the closet" and he would prefer to settle the matter
between Matthews and Foster. Mikowski testified that Matthews indicated that she
would be satisfied if Foster apologized. Matthews denied having so informed
Mikowski. She stated that Mikowski tried to change her mind about making a
complaint against Foster . It is the Trial Examiner 's opinion , based upon the testi-
mony and his observation of the witnesses, that Mikowski was admittedly en-
deavoring to persuade Matthews to dispose of the matter informally between
herself and Foster; that Matthews, alone in Mikowski's office with the latter and
with Alnor, the maintenance supervisor on the third shift, may not have been
particularly articulate under the circumstances; but she did not say that she would
accept an apology although Mikowski and Alnor may have believed that if they
succeeded in having Foster apologize Matthews could be persuaded to drop the
matter. In any event, after Matthews left his office Mikowski summoned Foster.
Foster admitted that he had made the remark attributed to him by Matthews but
asserted that Matthews had been teasing him. Foster was willing to apologize to
Matthews. Shortly after Foster left the office Blakely came in and accused Mikowski
of "high pressuring" Matthews .5 Thereafter Matthews returned to the office alone
and said to Mikowski that she intended to go through with the grievance.
On January 12, after the end of the third shift, Freeman, Blakely, Ware, Lucas,
and Hembe, all employees, met with Moore, the general shop chairman of the
Union. Freeman gave the grievance to Moore but the latter was unwilling to handle
the matter unless Matthews was present . The same group , including Matthews,
met on January 13. Moore again expressed reluctance about getting into the
matter since he did not believe that it was too important to the employees in the
shop. The testimony is in conflict as to what Blakely said at this point but the
Trial Examiner finds that after Moore expressed himself as aforedescribed Blakely
in substance told Moore that he was wrong and that if the people in the plant knew
of Moore's attitude they would walk off their jobs or would walk off their jobs
if Blakely told them. Blakely also referred to another union that was around that
might be willing to do something if Moore was reluctant to take any action. Moore
then arranged for a meeting with Edward Epstein, Respondent's general manager.
Present at the meeting held on Wednesday, January 14, were Epstein and Mikowski
for management and a committee of Freeman , Moore, Blakely, Ware, Lucas, and
Matthews. Blakely, by designation of the employee group, was the principal spokes-
man at this meeting. Freeman testified that he asked Blakely to speak for the
group because Blakely had personally witnessed the Foster-Matthews incident. At
the meeting Epstein promised to look into the Foster-Matthews matter although he
stated that the Company had invested substantially in training Foster as a leadman
and the committee might have misinterpreted the incident between Matthews and
Foster.
The following night, January 15, proved to be Blakely's last night of employment
and he was discharged on January 16. Freeman was discharged on January 17 .6
In addition to the foregoing, a situation that has a bearing upon Blakely's discharge
arises from the following: There were three yarn testers at Respondent's plant.
Purnell worked the first shift, 7 a.m. to 3:30 p.m.; Gilliam had the second shift,
3 p.m. to 11:30 p.m.; and Blakely was the third shift tester, 11 p.m. to 7:30 a.m.
Although denied by Blakely the Trial Examiner credits the testimony of Purnell
5 Blakely denies such an incident occurred . It seems likely to the Trial Examiner that
Matthews after her experience in the office may have recounted the events to Blakely or
Freeman to whom she had originally turned with her complaint.
6 The General Counsel has also pointed to the fate of other employees involved in the
grievance such as Matthews who was discharged January 16 ; Ware discharged January
17; and Lucas discharged January 17. White who had signed the grievance but who
did not appear at the January 14 meeting with Epstein was not discharged Foster was
discharged on January 17. Although only the discharges of Blakely and Freeman were
the subject of charges as alleged in the complaint, the parties did introduce evidence
relating to the circumstances of the other terminations. These circumstances are con-
sidered hereinafter insofar as they may shed light upon the issues raised by the
complaint.
SOFTEXTURE YARNS, INC. 769
and Gilliam that Blakely over a period of several months had asked them to limit
their production.? Respondent learned about the foregoing on Monday or Tuesday,
January 12 or 13, when Brooks, the assistant manager,8 overheard Purnell and
Gilliam discussing what Blakely had told them about limiting production. Brooks
neither said nor did anything about the matter because, according to his testimony,
he was getting the production he wanted and it did not enter his mind to make "any
fuss" about the matter. During this same week Purnell, when discussing her work
with Brooks, had remarked "jokingly," according to Brooks' testimony, that Blakely
did not want her to test too many trucks. As far as appears Brooks neither said
nor did anything on this occasion with reference to the situation .9
On Wednesday night, January 14, after the grievance meeting on that morning,
Brooks observed Blakely speaking to Mrs. Coley, a machine operator. The con-
versation was at Coley's machine and the time was approximately 11 p.m.10 Accord-
ing to Coley, a witness called by Respondent, Blakely spoke to her for a minute
or two about testing for burnt yarn on her machine and then spoke to her about
her daughter, Mrs. Wells, who also worked on the second shift." According to
Blakely, he, while in the course of picking up yarn from various machines to take
back to the testing department and telling Coley about testing for burnt yarn, was
in the vicinity of Coley's machine when she asked how the Foster matter was going.
Blakely replied that not much was being done about it and Coley stated that Foster
had also molested her daugher (Mrs. Wells) and her daughter had slapped him.
Coley said that she believed Foster should be put out of the plant. Blakely replied
that such might be accomplished if Mrs. Wells would sign a complaint against
Foster.12 Blakely leaned across the machine and spoke to Wells about signing a
complaint against Foster. Brooks testified that he observed Blakely talking to
Coley for about 7 minutes when Hembe, another employee, went over to Blakely,
spoke to him, and Blakely went to his own work.13 Brooks asked Blakely what he
had been doing at Coley's machine and was told that Blakely was talking to her
about burnt yarn. Brooks then reprimanded Hembe for warning Blakely that he
was being watched and an altercation ensued between Brooks and Hembe. Brooks
then spoke to Coley as to what Blakely had been talking about. Coley, according
to her testimony, told Brooks that Blakely spoke to her about testing for burnt yarn
and about her daughter signing a complaint against Foster. Brooks then asked
Blakely why he had lied to him. According to Brooks, Blakely admitted having lied,
said he was sorry, and was told by Brooks that it should not happen again.14 Brooks
7 Production of the testers was generally in terms of trucks although they also did
special testing that was not so computed. Gilliam regularly did 9 to 11 trucks. Blakely
had suggested that she do eight trucks. Purnell usually produced 11 trucks and
Blakely suggested 9 or 10.
8 Next to Epstein, Brooks was Respondent's highest ranking supervisor and was di-
rectly concerned with the productive efficiency of the plant
8 Purnell also testified that in November 1958 she had informed Brooks about Blakely's
efforts to limit production.
10 Mrs. Coley worked on the second shift, 3 p in. to 11 •30 p.m. and Blakely worked on
the third shift, 11 p in to 7 a.m The two shifts had a 30-minute overlap.
ii The Trial Examiner credits Blakely's version of his conversation with Coley for
various reasons including the fact that there is no evidence that Blakely had theretofore
known of any fracas between Wells and Foster. It is highly unlikely that Blakely in
discussing the Matthews grievance with Moore and Epstein on separate occasions would
not have referred to the trouble between Foster and Wells, if he had known about it
prior to speaking to Coley on January 14 Neither Moore nor Epstein had been particu-
larly receptive to the Matthews-Foster grievance and Blakely's disposition and alertness
were such that he would have certainly pointed to the Wells-Foster incident as an
additional argument for disciplinary action against Foster because of the Matthews affair.
13 Both Coley and Blakely are in agreement that any reference to a complaint against
Foster on this occasion referred to a complaint by Wells regarding Foster's actions to-
ward Wells Blakely was not suggesting a complaint by Wells against Foster because
of the Matthews affair.
18 Apparently Blakely had started to speak to Coley just before he was to actually start
testing since Coley testified that Blakely stayed "over his time."
14 Blakely denied that he had admitted having lied. The Trial Examiner has some
question about this since Blakely gave no indication in the course of the hearing that
he was the type to readily admit having lied, particulaily where, as here, his original
answer to Brooks had been truthful but incomplete, i.e., he did speak to Coley about
yarn. It is the Trial Examiner's opinion that after some veibal fencing Blakely may
11have said something to the effect "All right, I lied. . . .
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also told Blakely that Hembe had "sassed " him whereupon Blakely told Hembe to
apologize, which Hembe did.
Since the foregoing incidents are among the factors cited by Respondent in ex-
plaining its reasons for discharging Blakely, the Trial Examiner is of the opinion
that a contemporaneous memorandum made by Brooks for Epstein merits attention.
The memorandum is dated "1/14/59, 11:15-11:19,15 `Blakely talking to Dolores
Wells' mother' [Mrs. Coley] about Foster situation . Conversation was broken up
by Hembe who told Blakely I was watching. Hembe gave me backtalk when I
Approached him and said, `why did you tell Blakely I was watching.' Hembe denied
and then Blakely told me he did say it. Finally after further conversation Hembe
apologized because Blakely told him to."
About Thursday morning, January 15, Brooks heard from some unidentified
source that Gilliam, who was scheduled to work on Saturday, was not coming in
on that day. Brooks spoke to Gilliam about this on Thursday and told her that
she should come to work on Saturday notwithstanding anything she had heard.
Gilliam told Brooks on this occasion that Blakely had told her not to work on the
coming Saturday because Blakely had more seniority and that Blakely would work in
her place. She also told Brooks how Blakely had spoken to her about doing too
much work and about doing work other than testing. At the hearing Gilliam said
that she had not understood why Blakely had informed her about working in her
stead on Saturday since Blakely himself ordinarily worked at the plant on Saturday.
In the Trial Examiner's opinion, the testimony of Purnell, the other tester, who was
still in Respondent 's employ at the time of the hearing , sheds light upon this incident.
According to Purnell, Brooks had told them that the work would slow down and
Blakely had remarked to Purnell that since he had more seniority than Gilliam he
would get the Saturday work instead of Gilliam. In the light of the foregoing, the
Trial Examiner credits Blakely's testimony that after the Coley incident, Brooks in-
formed him that he might not have work for Blakely on Saturday. Blakely then
told Gilliam that in view of his greater seniority he believed that he was entitled to
work Saturday rather than Gilliam and would tell Shop Chairman Moore about it.
The Trial Examiner, however, does credit Gilliam to the effect that Blakely also made
the statement that he would work in her place on Saturday-16
During the 2 or 3 days between the time that the Matthews grievance had been
presented to Moore and Epstein on January 13 and 14, and the discharge of Blakely,
Moore, Brooks, and Epstein were engaged in investigating . The Matthews ' grievance
in itself was relatively clear. There was no room for doubt that Foster had said and
done what was alleged in the grievance since in addition to five witnesses Foster
had admitted his conduct although asserting that Matthews had teased him. What
apparently interested and concerned both Moore and management was the fact that
the grievance was being pressed and the prominent role that Blakely was taking in
the matter . The aforementioned investigations therefore were more in the direction
of the grievants , particularly Blakely, than toward the grievance in itself. Thus
Moore, who had displayed no great readiness to press the grievance, testified that
he went into "rumors" had heard about Blakely's activities and investigated
because he wished to find out about Blakely's interest in the Matthews case. Moore
was also motivated by Blakely's criticism of him as a steward and by Blakely's
remarks about the possibility of another union entering the picture . Moore spoke
to Purnell and Gilliam and got into the subject , aforedescribed , of Blakely suggesting
production quotas. On the day before or the day of Blakely's discharge Moore had
conversations with Epstein about Blakely 's conduct , including the matter of work-
loads and the mention of a strike . 17 We have also seen that Brooks, during this
period , had gotten into the matter of Blakely's conduct . Although Brooks had
previously heard of Blakely 's telling the other testers about workloads his reaction
appears to have been negative until the January 14 and 15 period.
1e The 4-minute period consumed by the events described in the memorandum is briefer
than the length of time that Brooks testified he observed Blakely speaking to Coley.
"When Blakely was asked at the hearing whether he did speak to Moore about the
matter he said that he did not get the chance since he was discharged on Friday,
January 16.
"Moore was a rather vacillating witness and changed his testimony from time to
time. The Trial Examiner finds that Epstein, in speaking to Moore about Blakely's
having threatened a strike, did state, as testified to by Moore at one point that he
(Epstein) could not afford a strike and if it was true about Blakely's talking of a
strike he would have to discharge Blakely. As we shall see, Epstein in his own
testimony admitted the important role that the strike aspect played in his termination of
Blakely
SOFTEXTURE YARNS, INC. 771
On Thursday, January 15, according to Brooks, he twice spoke to Epstein during
the day and recommended Blakely's discharge. Epstein had received Brooks'
memorandum concerning the January 14 Coley incident, aforedescribed, and
Brooks states that, in speaking to Epstein, he based his recommendation on the
fact that Blakely had talked back to him, that he had lied, that he had represented
himself as a shop steward, and that he was away from his work during working
hours. Later, on the same day, Brooks informed Epstein about Blakely's activity
in setting workloads and telling Gilliam not to work on Saturday. As far as appears,
Epstein reached no decision on the matter on that day since Brooks testified that
Epstein told him that he wished to consider some other facts and would talk to
Brooks on the following day.18 Blakely worked his regular shift that night but
when he reported for work on the next day, Friday, at 10:30 p.m., he was called to
Epstein's office and discharged by Epstein in the presence of Brooks.
In testifying about the events and circumstances immediately preceding the dis-
charge Epstein's testimony is in general conformity with that of Brooks. Epstein
stated, however, that he learned of the strike threat 19 Friday morning and "this was
the straw that broke the camel's back." Brooks testified that Epstein told Blakely
he was discharged because he was a "rabble rouser," because he breached the
contract, left his work, and lied to a superior. Respondent's personnel record card
for Blakely bears notations as to the reason for his termination. The reasons were
furnished by Epstein and were entered by the bookkeeper at the time of the dis-
charge. The notations state: "Conspiring for breach of union contract; Represent-
ing himself as union representative; Coercion of employees to witness an incident
they did not see." There also appears: "Lying about above; unacceptable
worker." 20
In addition to the foregoing , testimony adduced at the hearing makes it clear, in
the opinion of the Trial Examiner, that a substantial factor in the discharge of
Blakely was his activity in connection with the Matthews grievance 21 Both Ep-
stein and Brooks testified that they considered that Blakely had represented himself
as the shop steward in connection with this matter and Respondent considered all
Blakely's activities in connection with the grievance as improper. It also appears
that to Respondent the gravamen of the Coley incident on January 14 was the fact
is Epstein testified that he told Brooks, "Well wait a minute now Let's not get hot
about this thing. Let 's look at it and see what it's all about.. . ...
is What Respondent's witnesses referred to as the "strike threat" refers to Blakely's
conversation with Moore on January 12 or 13 when Blakely and those with him were
endeavoring to have Moore handle the Matthews grievance.
20 In a letter, dated January 17, 1959, to the Textile Workers Union, with whom
Respondent had a contract , Epstein referred to Blakely 's discharge for breach of con-
tract in trying to set workloads and workdays, "coercing employees to sign petitions and
witness events ( of which they knew nothing ), and general rabble rousing among the
employees . . . The letter also mentioned that Blakely had represented himself as
the shop steward.
On the same date, January 17, Epstein wrote to the "New Jersey State Dept. of
Labor," with copies to the Unemployment Compensation Commission , the Textile
Workers Union , Wadell D. Moore, shop steward, and the Federal Bureau of Investiga-
tion, stating the reasons for Blakely 's discharge . Among other things, the letter stated,
"We suspect that Mr. Blakely may be tied in some way with the United Textile Workers
which has no place in this organization."
A letter dated January 20 , from Epstein to the Textile Workers Union , stated that
Epstein had "become more and more convinced that this man was definitely schooled
in 'the divide and conquer' technique , and that if we hadn't found him out when we
did this shop would have been lost to your local . . . . The cost of replacing the six
experienced people is difficult to figure out in dollars and cents but I assure you it runs
to several thousand dollars. This was definitely a union fight and actually this cost
should not have been sustained by us if the 'culprits' had been ferreted out of your
meetings long before the damage was created here... .
Following the filing of charges, Epstein, on February 25, wrote to the Board's Re-
gional Director advising him that ". . . Blakely and company coerced , intimidated, lied,
and misrepresented in order to secure Solomon Foster's discharge . . . . We surely think
that your action . . . should be against Blakely and Freeman for coercing to secure this
discharge of Solomon Foster. These are the culprits. . "
"Epstein was asked : "Was one of the reasons for the discharge of Blakely his activi-
ties in processing the grievance? A. Yes."
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Blakely was seeking additional evidence in support of the Matthews grievance.22
As we have seen , to Epstein "the straw that broke the camel's back" was when he
learned that Blakely had spoken about the possibility of a strike.
Notwithstanding Respondent's frequent references to Blakely as having repre-
sented himself as the shop steward, there is no evidence that Blakely ever said or
represented to any employee or to management that he was the steward. Blakely
made it clear to Matthews at the very inception of the Foster incident that Freeman
was the steward for their shift, and, from the general shop steward, Moore, to
every other employee witness, this was a known fact. The grievance was channeled
through Freeman and a few days after Freeman had presented the grievance to
Mikowski without any result forthcoming, the grievance was presented by Freeman
to Moore, the general shop steward.
While it is true that Blakely was actively interested in the grievance and actively
supported its processing, he did so under the general aegis of the shift steward,
Freeman, and the chief steward, Moore. From an observation of Blakely the Trial
Examiner was of the opinion that Blakely's personality was such that he would
come to the forefront in an employee group; he was alert, assertive, and articulate;
he was 44 years old and had had prior experience in union affairs; Freeman was 21
years old and did not appear to possess Blakely's articulateness. At the meeting
with Epstein on January 14, Freeman, after introducing the grievance, asked
Blakely to be the spokesman since in addition to Blakely's other characteristics he
had been an eye witness to the grievance incident. Moore also was a party to or
went along with this arrangement 23
In the Trial Examiner's opinion the Foster-Matthews incident was a matter of
legitimate interest and concern as contemplated by Section 7 of the Act, to Blakely,
as an employee, and to the other employees. Respondent argues that the whole
affair was an effort to "get" Foster, whom some of the employees resented because
of his strictness as a supervisor. Aside from the fact that Foster was not Blakely's
supervisor, although he was the supervisor of Matthews and of Ware and Lucas who
signed the grievance as witnesses, the fact remains that the incident occurred and
it presented the basis for a valid grievance.24 The grievants may have been pleased
"to have something on Foster" but this does not alter 'the legitimacy of the griev-
ance25 It is also to be borne in mind that Respondent was not obliged to agree with
the grievants as to the merits of the grievance or as to what action, if any, should
be taken.
23 Epstein testified that ". . . Blakely continued his rabble rousing . . . He tried to
solicit signatures from other people, other employees . . I know one is Rebecca
Coley. " Again, ". . the following morning I find this note from Allan [Brooks]
about that Blakely is still attempting to rake up this whole business again, trying to get
other people to sign objections against Foster . . . this is that Coley business
Well, frankly, I was pretty incensed"
23 In some measure Respondent appears to have recognized Blakely as a person of some
influence or leadership among his fellow employees, e g , on the night of the Coley affair,
Brooks complained to Blakely that employee Hembe had "sassed" Brooks Blakely told
Hembe to apologize to Brooks and this was done
There are many situations in human experience where the person with the rank or the
title may be assisted by a subordinate or nonranking member of his group and it may
appear or prove to be the fact that the latter has the greater ability or experience.
21Cf Hearst Publsshang Company, Inc. (Los Angeles Examiner Davison), 113 NLRB
384, 387
ss Respondent also points to testimony that at one point Freeman and the others altered
their original insistence that Foster be discharged and expressed their willingness that
Foster be demoted and be placed on a different shift Such a change of position, it is
argued, when considered with the evidence that Freeman was disgruntled because Foster
had been made leadman instead of Freeman, indicates the transparency of the grievance
however, the Trial Examiner believes that Freeman's explanations in the context of
this case is an adequate one Freeman stated that he knew that Foster had just brought
his family to Newark and that he needed a job The Trial Examiner is also cognizant
that Foster, Freeman, and all the other employee witnesses were members of a minority
racial group and that the grievants may well have had some basic sympathy with Foster
that would prompt them to be reluctant about casting him out of employment entirely
and subject him to the difficulties of securing a comparable job.
Another point raised by Respondent is the assertion that because of the noise of
machines the various employees who signed the grievance as witnesses could not have
heard Foster's remark. The Trial Examiner is satisfied, however, that the remark was
audible. One of Respondent's witnesses, White, testified that he heard it and Foster,
SOFTEXTURE YARNS, INC. 773,
Not only was the grievance a legitimate one but Blakely's conduct in relation
thereto did not exceed the bounds of activity protected by the Act. The Trial
Examiner is not persuaded that when Matthews went to Blakely for assistance and
asked him to get the steward because she could not leave her machine that Blakely
removed himself from the protection of the Act by leaving his place of work for a
few minutes in order to get Freeman who was on another floor.26 When Blakely
spoke to Coley about burnt yarn, as both Coley and Blakely testified, he learned
from Coley that Foster had also molested her daughter. Blakely suggested that
the daughter sign a complaint against Foster.27 Blakely's absence from his place
of work for several minutes beyond what should have been the case and his lack
of frankness in immediately telling Brooks the whole story, while not commend-
able, does not exclude him from the Act's protection in the circumstances of this
case. The conclusion is clear, in the opinion of the Trial Examiner, that what
concerned Respondent was Blakely's active assistance to the grievance and not the
incidental circumstances of his leaving his work and his effort to conceal the entire
story. Brooks' written report to Epstein confined itself, insofar as criticism of-
Blakely was concerned, to the fact that Blakely was talking to Dolores Wells'
mother [Coley] "about the Foster situation." The balance of the memorandum
related to Hembe's conduct in warning Blakely and denying that he did so. The
remaining comment about Blakely had nothing about his leaving his work during.
working hours or lying but rather emphasized that Blakely had told Hembe to tell
the truth and that Blakely prevailed upon Hembe to apologize to Brooks 2s
a large man physically and a supervisor able to make himself heard when he wished,
prefaced his remark by saying, "Hey, fellows I want to tell you something about this
girl "
21 Matthews was a crimping machine operator and the machines were in almost
continuous operation and required the attention of the operator . Blakely, on the other
hand, as a tester, appears to have worked according to the material on hand and was not
tied to a machine in the manner that was the case with the machine operators
27 On the evening of January 14, when these events had occurred, the Respondent had
in no way indicated that it was prepared to take action against Foster as requested by
the grievants. As a matter of fact the grievance showed no promise of success at that
point. Mikowki had taken no action other than to attempt to persuade Matthews to
withdraw the grievance. Moore had been reluctant to process the grievance and depre-
cated its importance. Epstein had told the group in his office about how much he had
invested in training Foster and was less than enthusiastic about the matter although
he did say, without indicating favorable disposition, that he would look into it To an
employee interested in the outcome of a fellow-employee' s grievance , the knowledge that-
Foster had molested another girl was the sort of evidence that appeared to be needed to.
persuade Respondent, still undecided, to take action against Poster on the Matthews
matter. Ideally perhaps, and in a plant operated with strict rules as to employee
conduct, it would have been the more appropriate course for Blakely to have made no
attempt to get Mrs. Wells to sign a complaint against Foster but to have referred the-
matter to Freeman.
2s As we have seen, Respondent operated three shifts around the clock, apparently 6
or 7 days a week, and had about 70 employees. The record indicates that Respondent's
supervision was spread rather thin. Epstein, the top man, was followed in authority-
by Brooks and Mikowski, and, while each of these men put in a good many hours at the-
plant, the major portion of their time appears to have been spent on the first and part
of the second shift. Although Brooks was in the plant on January 14 at about 11 p in.,
these is no evidence that he or any of the other two top supervisors was customarily
present throughout the third shift or for the whole 24 hours. Blakely's supervisor on the
third shift was Alnor who knew nothing about the incident of January 9, although it-
was a rather substantial series of events, in that it involved Foster, a leadman,
Matthews, Blakely, Ware, White, Lucas, Brown, and Freeman, some of whom worked
on the second floor and some of whom worked on the third floor. Alnor learned about
the incident from Mikowski when Mikowski received the grievance about 6 15 a in. that
morning. The employees apparently enjoyed considerable latitude while in the plant-
so much so that these was some feeling about Foster's strictness in asking employees to.
start work on time or in asking male employees to stop using the ladies' restioom as
a lounge Foster, himself, as we have seen, devoted a fair proportion of his working
hours to nonwork affairs. This aspect of Foster's conduct at no time appeared to
disturb Respondent who was apparently willing to dispose of the whole Matthews inci-
dent on the basis of an apology. When Foster was eventually discharged it was on the
basis of the obscenity of his conduct and the attendant publicity and not because he had:
used working time to transact matters of personal interest. The record contains in--
577684- 61-vol 128-50
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Epstein's testimony also makes it clear that the precipitating cause or, as Epstein
put it, "the straw that broke the camel's back" was the knowledge he gained just
before Blakely's discharge that Blakely had mentioned the possibility of a strike.
The circumstances under which Blakely had referred to a strike have previously
been described. Although there is a no-strike clause in Respondent's contract with
the Textile Workers Union, it is the Trial Examiner's opinion that when Freeman,
Blakely, et at., presented the Matthews grievance to Moore and were met with an
attitude of reluctance or hesitation (whether justified or not on the part of Moore),
the employees in arguing with or seeking to prevail upon another employee, shop
steward or otherwise , could seek to prevail upon their steward to process the griev-
ance. The reference by Blakely to the possibility of getting another union is a type
,of argumentation not uncommon in such circumstances and the mention that the
other employees would walk out or could be called out on strike unless Moore
handled the grievance is the same type of approach . The mention of the word
."strike" in the present context, in an intraunion discussion , is not something that
is violative of the contract and, in the Trial Examiner 's opinion , it was part of a
course of protected activity.
Blakely's conduct in seeking to set production quotas is not to be defended and
if it was the sole reason for his discharge the complaint , as to Blakely, would warrant
dismissal. His action in telling Gilliam not to work on Saturday because Blakely,
by reason of greater seniority, would work in her stead was improper and in the
opinion of the Trial Examiner was not protected activity 29 Being unprotected
.activity , it would follow that a discharge for this reason alone, or for this reason in
addition to the production quota activity, would not be violative of the act.
The Trial Examiner concludes that Blakely's activity in connection with the
Matthews grievance was a substantial reason for his discharge . It is also found that
a substantial reason , and, according to Respondent 's manager , Epstein, the pre-
cipitating cause of the discharge, was the fact that Epstein learned that Blakely had
mentioned the possibility of a strike in connection with the grievance . Since the
stances of employees speaking to supervisors without much diffidence and Blakely on
occasions other than those relating to the Matthews grievance appears to have moved
around rather freely. His mobility was in part due to the nature of his work which
required him to go to other places on the floor but in part it was due to the general
atmosphere in the plant. Employee Pratt, although aparently on his working time,
encountered no difficulty in injecting himself into the grievance discussion between
Moore, Freeman , Blakely, et al., around January 13. This generally relaxed or at least
not strict climate of discipline extended , as we have seen, to the fact that Assistant
Manager Brooks was not concerned when he first learned that Blakely had spoken to the
other testers about limiting production . Moreover , Alnor, Blakely's immediate super-
visor, after testifying that Blakely' s production was low or that it fluctuated, was asked
whether he had ever warned him about this.
A. Well I don't know if you can call it a warning but I did talk to him on a
few occasions in no uncertain terms.
Q. What did you tell him?
A. I told him that he would-especially that time when he came storming up-
stairs, and I turned him around then and told him to go downstairs again and
come back and see if he can't learn how to approach a person. [Elsewhere, Alnor
had described the "storming upstairs " incident as an occasion when Alnor sent the
handyman to Blakely to see if there was any yarn on hand. Blakely came upstairs
and told Alnor that after this if Alnor wanted to know what Blakely had on hand,
Alnor should come down and get the information himself.]
The Trial Examiner refers to the foregoing not by way of criticism of bow Respondent
operated but simply in an effort to show that the general climate in the plant was not
one of tight discipline , at least relatively speaking . While Respondent is of course free
to operate as it chooses and may at any time change its rules or the pattern of conduct,
it may not , while proceeding against an employee for engaging in protected activity,
expect acceptance of the explanation that its action was motivated by alleged breach
of unpublicized or nonexisting or otherwise unenforced rules of conduct.
21 The Trial Examiner does not view the Saturday incident as seriously as the produc-
tion matter for various reasons. However, since the employer may discharge for any
reason or no reason , except as proscribed by the Act, it is believed that the conclusion,
once made , that the activity was unprotected, is disposrtive. Although, under the same
circumstances Blakely's efforts, particularly if made through the shop steward, to secure
the Saturday work, might have been protected, he spoke so definitively to Gilliam in
telling her not to come in that it is believed that lie exceeded permissive limits.
SOFTEXTURE YARNS, INC. 775
foregoing activities of Blakely were such as Section 7 of the Act was designed to
protect and does protect the discharge was violative of Section 8(a)(3) of the Act.
The fact that Respondent had additional and legitimate reasons for discharging
Blakely, e.g., Blakely's attempt to set production quotas and telling another em-
ployee not to report for work, does not alter the foregoing conclusion.30
In the course of considering the evidence relating to Blakely's discharge, the
activities of Freeman, the other alleged discriminatee, have also been described.
Freeman was discharged January 17, 1959. His personnel card bears the notation,
"threatened fellow employee with violence." Epstein testified that Freeman was
a good worker and that the only reason for his discharge was that Respondent
learned that he possessed or owned a gun. Respondent introduced evidence that
Freeman had expressed some animosity toward Foster for personal reasons un-
related to the Matthews affair and that when the gun factor became known it was
decided to discharge Freeman.
Freeman testified that about 2 weeks before his discharge Foster had threatened
to do him bodily harm because of some personal difference between them.31 Free-
man said that he was concerned about Foster's threat and he told his supervisor,
Alnor, that he would protect himself. Freeman stated that in the course of his
work he is required to open boxes and he carries a box opener with him. Apparently
the reference to the box opener was to indicate his means of protection. At the
hearing Freeman admitted that on one occasion he had told Epstein and Mikowski
that he should have been made leadman instead of Foster since he had greater
seniority. Freeman denied that he ever owned a gun or had one in the plant or
had told anyone anything about a gun.
Foster testified that on three occasions in November and December 1958, he
saw Freeman cleaning a pistol in the plant. Foster did not report this to manage-
ment. He testified that about a week or two before Freeman's discharge he told
Freeman to do something and Freeman told him what he could do. Foster asked
Freeman to step outside and he would do just that. Employee Brown testified that
in the first week in January 1959, Foster came over to Freeman and said that
Freeman had lied about him and he was going to smack Freeman in the mouth;
Freeman walked away.
Alnor, a supervisor in charge of the third shift,32 testified that on January 16, he
asked Freeman whether there was any truth to the report that he had been cleaning
a gun in the plant. Freeman replied, "Yes, and Solomon [Foster] better not bother
with me because I have one right out in the car now." Alnor reported this to his
supervisor, Mikowski, the first thing in the morning. Steiger, a mechanic employed
by Respondent, whom Mikowski described as Freeman's foreman, testified that in
January, the exact time he did not know, Mikowski told him to bring Freeman down
to Mikowski's office. In the office, according to Steiger, Mikowski asked Freeman
if he had a gun in the plant and Freeman denied it. Mikowski then asked Freeman
if he owned a gun and Freeman admitted that he did. Freeman denied having the
gun in his car. Mikowski's testimony was in conformity with that of Steiger and
Mikowski fixed the time of the conversation in his office as January 17. According
to Mikowski, when Freeman, on that date, admitted that he owned a gun, Mikowski
spoke to Epstein about it.
Epstein testified that Mikowski reported to him the information that Freeman
owned a gun and that Alnor had been told that Freeman had the gun in his car 33
Epstein thinks he also may have heard from Foster that Freeman had been cleaning
20 N L.R B. v. Jamestown Sterling Corp., 211 F. 2d 725, 726 (C A. 2) ; Butler Brothers
v. N.L.R B., 134 F. 2d 981, 985 (C.A. 7), cert. denied 320 U S. 789; N.L.R.B. v. Minne-
sota Mining & Manufacturing Company, 179 F. 2d 323, 326-327 (C.A. 8). Cf. N.L.R.B.
v. Whittin Machine Works, 204 F. 2d 883, 885 (C.A. 1).
The Trial Examiner noted that Foster appeared to be a bigger, heavier, and more
physically powerful man than Freeman.
82Alnor's principal task appears to have been the supervision of machinery mainte-
nance but he was the highest ranking supervisor on third shift.
a3 Epstein placed the time as Sunday or Monday, January 18 or 19. However, the
Trial Examiner is of the opinion that the testimony of Respondent's bookkeeper is more
precise and accurate gas to the date of Freeman's discharge and finds that since Freeman
was discharged on January 17, Friday, Epstein appears to be In error as to the time
factor. As previously noted, Alnor testified that he reported about Freeman to Mikowski
on January 16 and the latter called Freeman to his office on January 17. Since
Mikowski then reported to Epstein before a decision was made to discharge Freeman
it is found that this occurred about January 17.
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a gun in the plant.34 In any event, Epstein's reaction to the gun information from
Mikowski was that Respondent could not "possibly take a chance on a thing like
this" and Freeman was discharged.35
An aspect of Freeman's discharge that merits comment is Mikowski's testimony
that several weeks before the discharge he knew that Freeman and Foster had some
kind of a "squabble." Mikowski states that he told Freeman at that time that as
long as the quarrel did not affect Freeman's and Foster's work he would not bother
about the matter. Freeman told Mikowski on that occasion that he had nothing
to worry about because he, Freeman, had a weapon in his car. At the hearing
Mikowski explained that he was not concerned about what occurred outside the
plant as long as the employees worked harmoniously. Freeman's reference to
having a weapon could mean, according to Mikowski, that he had a "blackjack, a
baseball bat or anything," but when Mikowski, on January 17, learned that Freeman
had a gun he reported it to Epstein.
In the opinion of the Trial Examiner the difference in reaction of Mikowski to
Freeman's possession of a "weapon," which presumably could mean a knife, a gun,
a baseball bat, etc., prior to the entire Matthews grievance episode, and his reaction
to the specific word "gun," after the activities of Freeman, Blakely, et al., occurred
in respect to the grievance, raises a question about the motivation for the discharge
of Freeman.
However, while the aforementioned distinction between "weapon" and "gun" is
a fine one on the question of whether one would normally cause more concern to an
employer than the other in the particular circumstances, the Trial Examiner can
see a difference and, more importantly, the Trial Examiner is of the opinion that
Mikowski, whether the Trial Examiner would have made the distinction or not, did
see a legitimate difference. Further, Epstein, who, as far as appears had never
known of or condoned Freeman's possession of a "weapon," was the person who
made the decision to discharge when he learned of Freeman's possession of a gun.
As a consequence, the Trial Examiner finds and concludes that with respect to the
discharge of Fieeman, the General Counsel has not sustained the burden of proving
the illegality of the discharge and will recommend dismissal of that portion of the
complaint.
Before concluding this portion of the report, the Trial Examiner believes that he
would be remiss if he failed to advert to and make known his findings and conclu-
sions regarding certain other evidence that has been considered, including certain
written statements of Respondent heretofore set forth but not commented upon.
There is the testimony of employee Lucas, one of the witnesses to and a signer of
the Matthews grievance. He testified that when he was discharged on January 17
Epstein stated that everyone who had signed the grievance would have to be dis-
missed. This evidence, if credited, would have simplified the task of the Trial
Examiner, and the testimony merited serious consideration since the signers of the
grievance, Matthews, Blakely, White, Ware, and Lucas, were all discharged, as was
Freeman, on January 16 and 17, with the exception of White. White had signed
the grievance but thereafter was disassociated from the matter since he was not
present at the grievance meeting on January 14 when the others met with Epstein.
Moreover, on January 20 Epstein wrote to the incumbent union, the Textile Workers,
and complained about "the cost of replacing the six experienced people" and stated
"this was definitely a union fight" the cost of which would not have been incurred
by the Company "if the `culprits' had been ferreted out of your meetings long before
the damage was created here." 36
Notwithstanding the foregoing, the Trial Examiner, after careful consideration,
has not credited Lucas in the foregoing respect and in doing so has considered, among
iiIn his testimony, as we have seen, Foster did state that he had seen Freeman
cleaning a gun in the plant on three occasions in November and December. He stated
that he did not report this to management However, it is plausible that 'on January 17
when he was discharged he may have mentioned the fact since at that stage lie no
doubt regarded Freeman as one of the causes of his termination. Moreover, Foster
subsequently did testify before an executive board of the Union that Freeman had had
a gun in the plant
a6 On January 19, Respondent made a report to the police department about Freeman
and the gun and also referred to threats that Freeman had made about Foster. A police
car did stop at the plant pursuant to a call from Epstein or Mikowski. No arrest or any
definitive police action was taken.
3i At the hearing Epstein identified the six experienced people to which he made
reference as, Ware, Lucas, Freeman, Blakely, Hembe, and Poster. Matthews was a
relatively new employee
SOFTEXTURE YARNS, INC. 777
other factors, and has credited Respondent's witnesses that Ware and Lucas were
discharged for refusing to work on January 17, as was customary, and for refusing
to explain the reason for their refusal. The explanation for the discharge of
Matthews appears plausible.37 She was a relatively new employee, her attendance
record was poor, and Respondent considered her guilty of contributory involvement
with Foster.38
Respondent's statement about the entire matter being a "union fight" was also the
subject of careful consideration, with respect to the issue in the case, the discharge of
Blakely and Freeman. In this connection it was noted that on January 20 Epstein
wrote the Textile Workers Union that he had become convinced that Blakely "was
definitely schooled in the `divide and conquer' technique and that if we hadn't found
him out when we did this shop would have been lost to your local." On January 17,
Epstein wrote the New Jersey Department of Labor and other agencies and stated
that "we suspect that Mr. Blakely may be tied in some way with the United Textile
Workers. . .." 39 Epstein testified at the hearing that the possibility that Blakely
was in some way tied up wit', another union did not occur to him until a day after
Blakely's discharge and that it was not a factor in the discharge. While the circum-
stances are indeed suspicious the Trial Examiner, after careful consideration of the
evidence, does credit Epstein in this respect.40 The Trial Examiner will therefore
recommend dismissal of that portion of the complaint wherein it is alleged that
,one of the reasons for the discharge of Blakely and Freeman was "because said em-
ployees were suspected of having joined or assisted and of being sympathetic to
United." However, the Trial Examiner has concluded, as heretofore stated, that
Blakely was discharged because he "engaged in and [was] suspected of engaging
in protected union and concerted activity including the processing of employee
grievances. . .." as alleged in the complaint; it is further concluded that the allega-
tion of the complaint that Respondent's failure and refusal to employ or reinstate
Blakely was attributable to his aforedescribed protected activity and because he was
"suspected of having joined or assisted and of being sympathetic to United" has been
sustained by the evidence and it is so found.
TV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its business operations described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent has committed certain unfair labor
practices it will be recommended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent discriminated with respect to the hire and tenure
of employment of Robert Blakely by discharging him because of his union and
s'+ The only discriminatees alleged In the complaint were Blakely and Freeman. In
commenting upon the other discharges the Trial Examiner is not doing so under the
same exacting standards as would be applied if they had been alleged victims of Section
8(a) (3) discrimination since , for one thing, the evidence on this aspect was limited.
The Trial Examiner has considered the additional discharges insofar as they have a
bearing upon the principal issue in the case and insofar as they may relate to credibility.
38 While the Trial Examiner is of the opinion that the record does not establish
contributory involvement, it is not implausible that Respondent may have at least felt
that Matthews would be a source of some interest in the plant for reasons not contribu-
tory to Respondent's interest in efficient operation.
"The United Textile Workers in many respects may be considered a rival labor
organization to the Textile Workers Union and vice versa . According to the credited
testimony of Pratt, a witness called by Respondent, there were two occasions during the
first 2 weeks of January 1959, when a man who identified himself as a representative of
the United Textile Workers Union was at a door of Respondent's plant. This man had
asked Pratt whether or not he was a member of a union. Epstein's testimony indicates
that Respondent's relationship with the Textile Workers Union was such that Epstein
was not well disposed toward the possibility of another union's incursion
k° Although Epstein presumably did arrive at the conclusion that Blakely was connected
with another union before Epstein discharged Freeman, the Trial Examiner does not alter
his conclusion that the General Counsel has not sustained the burden of proof with respect
to Freeman
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerted activities , it will be recommended that the Respondent offer to Blakely
immediate and full reinstatement to his former or substantially equivalent position,
without prejudice to his former rights and privileges , and make him whole for any
loss of pay he may have suffered by reason of the discrimination against lum by
payment to him of a sum of money equal to the amount he would normally have
earned as wages, from the date of his discharge until his reinstatement as described
above, less his net earnings during this period. The loss of earnings shall be com-
puted in accordance with the Woolworth formula, F. W. Woolworth Company, 90
NLRB 289.
It is also recommended that the Respondent be ordered to make available to the
Board and its agents , upon request , payroll and other records to facilitate the check-
ing of the amount of earnings due.
Needless to say, the Trial Examiner in recommending the reinstatement of
Blakely is in no way condoning any of Blakely's activities that may have breached
his obligation as an employee and Blakely is in no way intended to be excused from
conforming to such legitimate standards of employee conduct as Respondent may
have, no more and no less.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Softexture Yarns, Inc., is an employer within the meaning of Section 2(2) of
the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Textile Workers Union of America , AFL-CIO, and Local 1932 thereof, and
United Textile Workers of America, AFL-CIO, are labor organizations within the
meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire, tenure, and conditions of employment
of Robert Blakely, thereby discouraging membership in a labor organization or
labor organizations , the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
4. By said discriminatory conduct, which interferes with, restrains , and coerces
employees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and ( 7) of the Act.
[Recommendations omitted from publication.]
Mark J . Gerry, Inc. d/b/a Dove Manufacturing Company I and
Los Angeles Dress and Sportswear Joint Board , I.L.G.W.U.,
AFL-CIO, and Local 994, International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers , Joint Peti-
tioners. Case No. 21-RC-6438. August 23, 1960
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Belle Karlinsky, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
' The Employer's name appears as amended at the hearing.
128 NLRB No. 107.