The Duplan Corp.

National Labor Relations Board - Board Decisions

Jul 29, 1970

184 N.L.R.B. 700 (N.L.R.B. 1970)

700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Duplan Corporation and United Textile
Workers of America . Case 10-CA-8030
July 29, 1970
DECISION AND ORDER
BY MEMBERS FANNING, MCCULLOCH, AND JENKINS
On April 30, 1970, Trial Examiner Sydney S.
Asher issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in certain unfair labor practices and recommending
that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent
filed timely exceptions to the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, and the
entire record in the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, The Duplan Corpora-
tion, Cleveland, Tennessee, its officers, agents, suc-
cessors, and assigns, shall take the action set forth,
in the Trial Examiner's Recommended Order.
' The Respondent 's exceptions , in large part, are directed to the credi-
bility findings made by the Trial Examiner It is the Board's established pol-
icy not to overrule a Trial Examiner 's resolutions as to credibility unless, as
is not the case here, a clear preponderance of all the relevant evidence con-
vinces us that they are incorrect Standard Dry Wall Products , Inc , 91
NLRB 544, enfd 188 F 2d 362 (C A 3)
TRIAL EXAMINER 'S DECISION
SYDNEY S. ASHER, Trial Examiner: On November
6, 1969, United Textile Workers of America,
herein called the Union, filed charges against The
Duplan Corporation, Cleveland, Tennessee, herein
called the Respondent. On January 6, 1970, the
General Counsel of the National Labor Relations
Board issued a complaint alleging that the Respon-
dent discharged its employee, Irene Bearfield, on or
about October 27, 1969, and thereafter failed and
refused to reinstate her because of her membership
in and activities on behalf of the Union and because
she engaged in concerted activities. It is alleged
that this conduct violated Section 8(a)(1) and (3)
of the National Labor Relations Act, as amended
(29 U.S.C. Sec. 151, et seq. ), herein called the Act.
Thereafter the Respondent filed an answer ad-
mitting that it discharged Irene Bearfield from its
employment on or about October 27, 1969, and has
not since then rehired her, but denying that it did
so because of her membership in or activities on
behalf of the Union, or because she engaged in con-
certed activities.
Upon due notice, a hearing was held before me
on February 19 and 20, 1970, in Cleveland, Ten-
nessee. All parties were represented and par-
ticipated fully in the hearing. At the close of the
General Counsel's case-in-chief, the Respondent
moved for dismissal of the complaint for failure of
the General Counsel to prove a prima facie case.
The motion was denied. After the close of the hear-
ing the General Counsel filed a brief, which has
been duly considered:
Upon the entire record in this case,' and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
The complaint alleges, the answer admits, and it
is now found, that the Respondent is, and at all
material times has been, an employer engaged in
commerce as defined in the Act, and its operations
meet the Board's jurisdictional standards;2 and that
the Union is, and at all material times has been, a
labor organization as defined in the Act.
A. The Setting
The Respondent operates two plants in the
Cleveland , Tennessee , area , referred to in the
' During the hearing the Respondent requested that I take official notice
of the Decision of Trial Examiner David S Davidson in Duplan Corpora-
tion, Cases lO-CA-7498 and 10-CA-7539, issued March 19, 1969, It ap-
pears that the Respondent filed exceptions to this Decision with the Board,
that the Respondent has voluntarily complied with the Trial Examiner's
Decision , and that the Board has never ruled on the exceptions As the
Board has never adopted the Trial Examiner's Decision and has never
made any findings, I decline to take official notice of the Trial Examiner's
Decision United Mine Workers of America, Local No 7244 (Grundy Min-
ing Company), 146 NLRB 244, 251, fn 18 See also West Point Manufac-
turing Company, Wellington Mill Division, 142 NLRB 1161, 1163, in 3
The General Counsel in his brief cites Moulton Manufacturing Company,
152 NLRB 196, 207-209 That case is distinguishable on its facts There
(see 198) the Board issued an Order adopting the Trial Examiner's Deci-
sion Significantly, the Board has issued no such Order in the subject cases
2 The Respondent is, and at all material times has been, a Delaware cor-
poration with two plants in Cleveland, Tennessee, where it is engaged in
the manufacture and sale of textured yarns During the 12 months prior to
January 6 , 1970, the Respondent shipped products valued at more than
$50,000 from its Cleveland, Tennessee, plants directly to destinations out-
side the State of Tennessee
184 NLRB No. 75
THE DUPLAN CORPORATION 701
record as the "old" and "new" plants. At all
material times, the "new" plant operated on two
shifts daily, the first shift being from 7 a.m. to 3
p.m. The events with which we are here concerned
took place mostly in the fall of 1969 in the Duloft
department at the "new" plant on the first shift.
The Duloft department contains 130 Duloft
machines which produce yarns. During the period
here material, there were approximately 22 Duloft
machine operators on the day shift, each of whom
operated 5 or 6 Duloft machines. These opera-
tors usually performed their functions at the fronts
or sides of the machines, but occasionally their
duties required them to work briefly in back of the
machines.
To supply the Duloft machines with filled bob-
bins, there were a number of bobbin winding
machines in the center of the department. Prior to
the early summer of 1969, there were two bobbin
winding machines, which were not automatic. These
were operated by three bobbin winders on the first
shift: one regularly assigned to each bobbin winding
machine and a relief operator. In the summer of
1969 the two nonautomatic bobbin winding
machines were replaced by five automatic
machines. The number and identity of the opera-
tors remained the same; one regularly operated
three automatic bobbin winders, another was as-
signed to the remaining two machines, and the third
remained, as before, a relief operator.'
When a bobbin winder needs empty bobbins she
normally leaves her machine and collects empties
which the Duloft operators have placed on the side
of their Duloft machines. In the usual course of her
duties, a bobbin winder has no function to perform
in back of the Duloft machines After the bobbins
have been wound, they are placed in groups of 16
on a board which the bobbin winder puts on a ta-
ble. Although it is the duty of the bobbin winder to
deliver full bobbins, a Duloft operator in need of
full bobbins often leaves her Duloft machines, goes
to the table, and takes the boards containing the
filled bobbins back to her Duloft machines. Some-
times for this purpose the Duloft operator goes
from her Duloft machine directly to the bobbin
winding machines, there is no restriction as to
which bobbin winder she may approach. When the
demand for filled bobbins exceeds the supply,
several Duloft operators may be waiting their turn
at the bobbin winder at the same time. This situa-
tion creates, on occasion, "ganging up" or con-
gregating around the bobbin winders.
At all material times, there have been three
foremen in the Duloft department on the first shift,
Charles Frady and two others who appear to have
been his subordinates. All three are, and have been,
supervisors within the meaning of the Act. In addi-
tion, there is and has been a floorlady in the depart-
ment on the first shift, Willie Mae Brock, who, in
my opinion, is not and has not been clothed with
sufficient authority to be deemed a supervisor.4
The Respondent, at least in the Duloft depart-
ment, maintains no rule prohibiting talking among
the employees while at work. There is no restriction
regarding employees going to the washrooms dur-
ing working time.
Brock, a witness for the Respondent, testified
that the Respondent utilizes a number of methods
of discipline: oral reprimand, written reprimand, 3-
day disciplinary suspension (after the third oral
reprimand), and discharge (after the fourth oral
reprimand). Frady, also a witness for the Respon-
dent, testified that his policy is as follows: when the
problem is not serious he orally reprimands an em-
ployee at her place of work in the department
"when no one else is around," but makes no writ-
ten notation. When he has warned an employee
"two or three times ," or if he considers the
problem "very serious," he summons the em-
ployees in question into his office where he orally
reprimands her (presumably in the presence of
others), and at the same time makes a written nota-
tion of the matter. He then makes a copy of this
notation, which he presents to the plant manager
for placement in the personnel file, retaining the
original in his own files. He further testified that
"some" employees whom he discharged had
received prior warnings. He denied that he-followed
"any set or uniform procedure about warnings, a
certain number of them . leading up to
discharge." Instead, he testified: "I usually go by
common sense on that"; pointing out that "there
have been some that has been warned, two, three,
and four times, some two times. It all depends on
the situation as it stands at that point." Finally,
Frady testified that he has imposed 3-day discipli-
nary layoffs on employees, but in such instances, up
to the time of the hearing, had never found it
necessary to follow up by discharging an employee
who had received such a layoff, the layoff ap-
'' On the nonautomatic bobbin winders the operators loaded the machine
with empty bobbins, moved the yarn back and forth by hand so it would roll
smoothly on the bobbin, and unloaded the machine when the bobbins were
full The automatic machines now in use contain a guide which automati-
cally moves the yarn back and forth, the operator merely loads and unloads
bobbins Thus an operator can now operate two or three automatic
machines in the same time and with the same effort as she previously could
have operated a single nonautomatic machine
' The General Counsel and the Union contend that Brock is a supervisor
The Respondent maintains, to the contrary , that she is merely a rank-and-
file employee The record shows that Brock possesses none of the at-
tributes of a supervisor described in Section 2 (11) of the Act Although
from time to time she acts as a conduit to deliver Frady's directions to the
employees, she does not in doing so exercise her own independent
judgment And her recommendations regarding the retention of trainees
are not effective , indeed, higher management conducts its own separate in-
vestigation of the trainees ' ability before deciding on retention Moreover,
the Regional Director, in his Decision and Direction of Election in Case
10-RC-7993, issued November 17, 1969, found that none of the Respon-
dent's floorladies were supervisors Nothing produced by the General
Counsel or the Union at the instant hearing weakens that finding Nor is
there sufficient evidence to support the General Counsel's position that
Brock was an agent of the Respondent
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parently proving effective in bringing the offending
conduct to a halt. The General Counsel put into
evidence a note dated October 8, 1969, written by
Frady to an employee stating that the employee had
been observed interfering with three other -em-
ployees while at work, and warning that this was
the employee's second offense, and that "the next
time this happened he would be discharged."
B. Events Before October 27, 1969
Irene Bearfield first began working for the
Respondent as a Duloft machine operator in June
1968. She was later transferred to operating a
nonautomatic bobbin winder on the first shift. After
the two nonautomatic bobbin winders were
replaced by five automatic bobbin winders in the
summer of 1969, Bearfield was assigned to operat-
ing three such machines.
Bearfield signed an authorization card for the
Union in July 1968. From that time on, Bearfield
discussed the Union with many of her fellow em-
ployees, and asked them to sign authorization
cards. All these conversations took place in the
plant lunchroom, cloakroom, and restroom, and
also outside the plant on nonworking time. She at-
tended all meetings of the Union.
Early in Aprils Hall received a message to deliver
to Bearfield. He proceeded to her place of work
but, although it was working time, Bearfield was
not there. Hall waited for her, but presently asked
Frady where she was. Frady requested Brock to go
to the ladies' restroom to see if she were there.
Brock returned with Bearfield, and Hall delivered
the message . Altogether, Bearfield was absent from
her work post and in the ladies' restroom on this
occasion from 10 to 30 minutes. Later, according
to Hall's uncorroborated testimony, Hall remarked
to Frady that Hall "thought he [Frady] ought to be
more concerned about how long they [employees]
spent in that restroom because it seemed to me that
was an extreme period of time." Neither Frady nor
Hall asked Bearfield for an explanation nor repri-
manded her. Nor did Frady make any written nota-
tion of the,incident.6
On September 8, a Monday, Frady came to Bear-
field's place of work and told her that she was
among a number of operators who were to take off
the next day, Tuesday. Bearfield replied that she
did not want to be off Tuesday, that she would
prefer to be off Saturday. Frady responded that, ac-
cording to seniority, she would have to take off
Tuesday. This did not sit well with Bearfield, who
complained to her fellow employees. To what ex-
tent she did so is in dispute. She testified she only
spoke to one employee and that was in the
restroom. Frady, however, testified that he saw her
leave her machine and call two Duloft operators
behind a Duloft machine to discuss the matter. In
any event, on that day or the next, in the presence
of Brock and Frank Swafford, a foreman in the de-
partment on the first shift, Frady summoned Bear-
field to his office. Brock stated that other em-
ployees, whom she did not name, had reported to
her that Bearfield had complained to them that
Frady was "doing me [Bearfield] wrong" by letting
her off on Tuesday. Frady reprimanded Bearfield
for "hindering" other operators "from performing
their duties " and warned that unless such conduct
ceased, "disciplinary action would have to be
taken."' Either immediately before or immediately
after this interview, in the presence of Brock and
Swafford, Frady prepared the following notation:
On 9/9/69 Approximately 2:45 p.m. in the
presence of Willie Brock, and Frank Swafford.
Irene was talked to about her conduct and hin-
dering operators from performing their duty.
The next time disciplinary action would be
taken.
Frady testified that, although he did not give Bear-
field a copy of this notation, he offered her the op-
portunity to read it. Bearfield, on rebuttal, denied
that she had been afforded such an opportunity or
that she had ever seen the document prior to the
hearing. On this conflict, I credit Bearfield's denial.
The above-described event was the only time
Frady called Bearfield into his office and orally
reprimanded her in the presence of others, prior to
October 27. It was also the only time Frady made
any written notation regarding her conduct, prior to
October 27.
C. Events On and After October 27, 1969
Bearfield was in the cloakroom on October 27
for a few minutes before the workday began, where
she met Clara Godfrey, a trainee Duloft operator
employed by the Respondent." Godfrey at that time
did not know Bearfield's name. According to Bear-
field, a witness for the General Counsel, Godfrey
asked her when the Union was coming in, and
Bearfield replied when the employees wanted it.
According to Godfrey, also a witness for the
General Counsel, Bearfield asked if anybody had
given her a union card yet, to which Godfrey an-
swered that she didn't know anything about it. Re-
gardless of how the conversation concerning the
Union started, both witnesses agreed, and I find,
that Bearfield handed Godfrey a blank union
authorization card and suggested that she sign it
' Unless otherwise noted, all dates hereafter refer to the year 1969
6 The findings regarding this incident ( except for its date ) are based upon
a synthesis of the testimony of four witnesses for the Respondent Hall,
Frady, and employees Thelma Millard and Eliza Haggard As for the date,
Haggard placed it "in the summer," while Frady placed it about a month
before October 27 On rebuttal , Bearfield placed the incident as having oc-
curred "the week before the 14th of April " I credit Bearfield 's version of
the date as the most accurate
' The findings regarding this conference are based on the testimony of
Bearfield , corroborated in large part by that of Frady Although Brock
testified , she did not refer to this incident Swafford did not testify
" Although Bearfield placed this encounter as a week earlier, 1 am con-
vinced, on the entire record , that it took place on October 27
THE DUPLAN CORPORATION 703
and return it to Bearfield. Godfrey remarked that
she would think about it, and put the card in her
handbag. Both ladies then left the cloakroom and
went to work. The record does not reveal what
became of the blank card. At no time during this
discussion did Bearfield threaten Godfrey that the
Union would cause her to lose her job, or that the
Respondent would discharge her, if she failed to
sign the Union card.9 And at no time during this
discussion did Bearfield interfere with Godfrey's
work, as the workday had not begun.1°
Shortly after the start of the workday Godfrey
told Brock of the incident in the cloakroom. In my
opinion, it is unnecessary to make findings regard-
ing the details of this Godfrey-Brock conversation,
both participants being nonsupervisory employees.
Suffice it to find, as I do, that, through Brock,
Godfrey learned Bearfield's name.
After her conversation with Godfrey, Brock re-
ported to Frady that "Irene [Bearfield] had ap-
proached [Godfrey] in the locker room and told
her to sign a Union card or she was going to lose
her job." Frady and Brock then proceeded to
Godfrey's place of work. Frady asked what the
problem was. According to Frady, Godfrey replied
"that she had been told that if she did not sign a
Union card she would lose her job." When Frady
inquired "By whom?", Godfrey pointed to Bear-
field. Frady left but later returned and asked
Godfrey whether she would sign a statement. When
she said that she would, Frady brought her to the
personnel office. There, in Hall's presence, Godfrey
stated, according to Hall, that "Irene Bearfield had
told her that if she didn't sign a Union card, she was
going to lose her job." A stenographer was sum-
moned and prepared a statement in longhand,
which Godfrey signed. It read:
In the locker room on Monday, October 27,
1969 Irene Bearfield came up and asked me to
sign the union card, she handed me the union
card and told me to sign the card and bring it
right back to her, that they were going to let
me go so I should go ahead an [sic] sign.
At or about 2 p.m. (approximately an hour be-
fore the end of the shift) Frady summoned Bear-
field to the personnel office and, in Hall's presence,
stated: "You are discharged as of right now." When
Bearfield asked why, Frady responded that he had
had complaints that Bearfield "had been threaten-
ing and interfering with his girls back there and he
didn't allow it in his department." Bearfield denied
that she had "threatened anyone or interfered with
them." Frady then handed Bearfield her paychecks
and separation notice, which had been previously
prepared. The latter, signed by Hall, bore a
checkmark on the box labeled "Discharged (Ex-
plain below)." The space below marked "Detailed
Explanation" was blank. Frady left the office tem-
porarily to collect Bearfield's personal belongings.
While he was gone Bearfield asked Hall: "What is
this all about? ' Hall responded that Frady would
have to explain it. When Frady returned with her
personal belongings, Bearfield asked him "what it
was all about." Without answering, Frady stated
that "he had to get back out there," and left the
room." Bearfield left the plant. She has never
returned.
That day Frady prepared the following notation:
On 10/27/69 Approximately 1:50 in the
presence of Mr. John Hall. Talk to Irene Bear-
field about hindering people from doing there
[sic] work and threatening them. Told her I
would not tolerate this with in my dept. Told
her that she was discharged. She was paid for
last week and 7 hours for Monday 9/27/69.
[sic]
On cross-examination, Frady testified that he of-
fered Bearfield an opportunity to read this notation.
On rebuttal, Bearfield denied that Frady had ever
afforded her an opportunity to read it or that she
had ever seen it before the hearing. Although Hall
testified as to the exit interview, he did not mention
" On cross-examination Godfrey testified
Q (By Mr Machen ) did she [Bearfield] say something to you
about sign this card and get it right back to me, that you might be los-
ing your job9
A Yes
Q She did say something to that effect to you9
A Yes, sir
On redirect examination , Godfrey testified
Q (By Mr Sobieski ) When you were speaking with Mrs Bearfield
in the cloak room , could she have said you might be let go9
A Well, she might have said that She said something about them
letting me go
The most that this demonstrates is that Bearfield mentioned that the
Respondent might let Godfrey, a trainee, go Even if this vague reference
by Godfrey should be credited , it falls short of establishing that any threat
was uttered On this subject, Bearfield testified
Q Tell us whether or not you said anything about her being laid
off'
A No
No third person was present during the Bearfield -Godfrey conversation It
is significant that the statement signed by Godfrey later that day, set forth
below , quotes Bearfield as saying "they were going to let me go , so I should
go ahead and [ sic] sign " clearly less than a threat Bearfield impressed me
as a candid , forthright witness At the time of the hearing, Godfrey was still
working for the Respondent , appeared to be anxious to please the Respon-
dent's counsel, and readily agreed with his suggestion that loss of her job
was mentioned I am convinced by Godfrey's demeanor on the stand that
she stretched the truth and that her testimony is unreliable Accordingly, I
credit Bearfield 's denial
10 Brock attempted to portray Godfrey, already upset by her mother's
recent death , as so shaken by what Bearfield had done that Godfrey could
not thereafter properly perform her duties It may perhaps be that Godfrey
deeply resented Bearfield's attempt to interest her in the Union, for
Godfrey volunteered on the witness stand "She [Bearfield ] had no busi-
ness giving it the union card ] to me in the first place " But even if it should
be found that such resentment, stirred up during nonworking time, spilled
over and lessened Godfrey's efficiency during working time, which I
decline to decide, that , as the Board has said, is "the price which must often
be paid in order that the rights guaranteed by Section 7 may be preserved
El Mundo, Inc , 92 NLRB 724, 726
" The findings regarding this exit interview are based on Bearfield's
testimony , corroborated in part by that of Hall and Frady To the extent
that Frady testified that Bearfield did not deny his accusation during the
exit interview-which Bearfield contradicted-Frady's testimony is not
credited
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Frady's notation. I credit Bearfield's testimony that
the document was never offered to her for ex-
amination.
After the discharge, Bearfield applied to the Ten-
nessee Department of Employment Security for
unemployment benefits. The Respondent protested.
On January 7, 1970, the appeals referee found that
Bearfield "was guilty of misconduct" and rejected
her claim. Bearfield filed an appeal, which is still
pending.
D. Bearfield's Past Conduct
Frady testified that he decided to discharge Bear-
field "on account of the threat and the previous ex-
perience that I had had with her, problems that she
caused."12 Hall testified that "Mrs. Bearfield's
name had been brought up on two or three other
occasions ... by either Mr. Frady or Mr. Southern
[plant manager] or both regarding the problems
that they were having with her." Specifically, Hall
explained: "They told me that she was interfering
with the work of others ... in the department by
getting the operators behind the machines." In
response Hall, "probably a couple of months prior
to her discharge," at least twice recommended to
Frady that he discharge Bearfield. At the same
time, according to Hall, he pointed out another
possible step Frady might take, namely, a discipli-
nary layoff. Hall's testimony in this respect was cor-
roborated neither by Southern, who did not testify,
nor by Frady, who did. Hall's demeanor on the
stand did not impress me, his testimony was not
convincing, and I do not credit it.
To indicate the ways in which Bearfield's con-
duct had created problems prior to her discharge,
the Respondent produced the testimony of Brock
and Frady. Frady testified that, beginning in about
August, he began to notice Duloft operators con-
gregating around Bearfield's bobbin winding
machine, he saw Bearfield talking to groups of Du-
loft operators behind the Duloft machines where
she had no legitimate business, and observed that
she stayed in the ladies' washroom for unreasonably
long periods of time. He acknowledged that other
employees also were guilty of gathering in groups to
talk during working hours, but estimated that Bear-
field did this "two times more than ... the others."
He further testified that he had received complaints
about this from Eliza Haggard, the other bobbin
winder on the first shift, and "several times" from
Brock. He also testified that he orally reprimanded
Bearfield for such conduct at least three times be-
fore her discharge. According to him, Bearfield's
conduct improved after he called her into his office
and made the written notation on September 9, but
the "improvement" only lasted about a week. He
'2 Frady and Hall testified that Frady reached this decision by himself
Brock , however , testified " He [Frady( can't just go ahead and fire any-
body by himself" but she did not elaborate as to the limits of his authority I
find it unnecessary to resolve this conflict between the Respondent's wit-
nesses
acknowledged , on direct examination , that during
August , September , and October he "spoke to I
would say half of [ the Duloft ] department about
their work ." On cross-examination he elaborated:
Q. She [Brock ] didn't tell you there were
other people congregating around , other em-
ployees in your department?
A. Yes. This has been called to my attention
by her and Frank [Swafford].
Q. You did not fire anybody else?
A. I did not.
He further admitted that it was not unusual "for
employees to stop and talk to other employees in
their department during the course of a working
day." Brock in large measure corroborated Frady's
testimony. She testified that "when she [Bearfield]
first came to us she did her work well but [approxi-
mately 3 months before her discharge] we noticed
that she was talking among the operators more."
She further testified that several Duloft operators
congregating in the department and talking during
working hours "happens all of the time." The
testimony of Brock and Frady concerning Bearfield
was also corroborated in part by Haggard. 13 The
Respondent also called as a witness Thelma Mil-
lard, a Duloft operator, who testified as to Bear-
field's shortcoming, but also testified that she had
never complained about Bearfield to any supervisor
while Bearfield was in the Respondent's employ.
She further admitted that it was "not unusual for
employees to talk to each other at work," and that
some unnamed employees who "hang around ...
ten or fifteen minutes" have not been discharged.
Bearfield denied that Frady had ever repri-
manded her except on September 9, as related
above. Four employees were called as witnesses by
the General Counsel to describe Bearfield's work
habits: William Cummings, a Duloft fixer on the first
shift, testified that, although he has seen two, three,
or four Duloft operators gather together for about
10 minutes during working time, he never saw Bear-
field in such a group. Charles E. Scoggins, also a
Duloft fixer on the first shift, testified that he ob-
served no more than two or three Duloft operators
at a time waiting to pick up full bobbins at Bear-
field's bobbin winder, and that he has seen three or
four at a time at the machines of the other bobbin
winders. LaFay Davis and Imogene Wade, Duloft
operators on the first shift, generally corroboraed
the testimony of Cummings and Scoggins. Davis
stated that she never saw Bearfield go behind the
Duloft machines, but she had seen other bobbin
winders do so. Wade asserted that she never saw
" On direct examination , Haggard testified that she observed Bearfield
"standing behind the machines talking" during working hours ( Emphasis
supplied ) However, on cross-examination when asked " you testified that
you saw Irene around back of the Duloft machine, is that right'" ( Emphasis
supplied ) Haggard responded " No, I didn't "
THE DUPLAN CORPORATION
Bearfield stop to just talk to other employees for
"any length of time," saying: "She [Bearfield]
might say hello or something like that and just keep
going."
The testimony of Frady, Brock, and Haggard is,
in my opinion, replete with exaggeration. None of
the three impressed me as a reliable witness.
Moreover, it strikes me that had Frady really been
concerned about Bearfield interfering with other
employees at work, I'am convinced that long before
October 27 he would have taken steps to curtail
such activities, other than oral reprimands. For oral
repimands appear to have been commonplace and
ineffectual. As for Millard's testimony, I need not
evaluate it, for even if taken at face value it does
not help determine what was in Frady's mind. As
Millard kept her observations to herself and never
complained to management, what she saw could
not have affected Frady's decision to discharge
Bearfield. The same may be said of the testimony of
Cummings, Scoggins, Davis, and Wade. As for
Bearfield, I found her to be more convincing than
Frady, Brock, or Haggard. The truth probably lies
between the two extremes, but closer to the
General Counsel's version. Although I do not con-
sider Bearfield's total conduct exemplary, and do
not necessarily deem her a model employee,
neither can I find on the record before me that
Frady or other members of management had reason
to look upon her conduct as substantially below the
level which the Respondent tolerated in others. I
conclude that Bearfield's past record had no part at
all, or at most an insignificant part , in the Respon-
dent's decision to discharge her. It was a mere pre-
text seized upon to disguise the real reason.
E. Conclusions
What , then , was the principal motivating cause of
Bearfield 's discharge ? The timing and the rapid suc-
cession of events on October 27 ( Bearfield was not
permitted to finish the shift ) compels a conclusion,
and I find , that the answer is: Bearfield 's conduct in
the cloakroom before 7 a . m. that day.
Unquestionably, it was this incident that triggered
the discharge. 14
What happened was this: Bearfield , during non-
working time and in a nonworking area of the
plant , solicited a fellow employee to support the
Union and gave her a blank authorization card. In
so doing , she did not utter any threat . It is pellucid
that such conduct is protected by Section 7 of the
Act.
" The appeals referee did not place much emphasis on the events of Oc-
tober 27 His total findings on this incident were
The claimant was further charged with threatening another employee
if she did not file [sic] a union card since one of the operators had
brought the matter to the employer 's attentions [sic] The claimant de-
nied said charge at instant hearing
He did not attempt to resolve the conflict thus noted Because of this, and
as the appeals referee based his determination of "misconduct " on a record
which is not before me, I accord only slight probative weight to his conclu-
sions
705
A majority of the United States Supreme Court
has said:
§ 8(a)(1) is violated if it is shown that the
discharged employee was at the time engaged
in a protected activity, that the employer knew
it was such, that the basis of the discharge was
an alleged act of misconduct in the course of
that activity, and that the employee was not, in
fact, guilty of that misconduct ...-. A pro-
tected activity acquires a precarious status if
innocent employees can be discharged while
engaging in it, even though the employer acts
in good faith. It is the tendency of these
discharges to weaken or destroy the §8(a)( I )
right that is controlling.','
Of course, here the Respondent was well aware
that Bearfield had been engaged in protected activi-
ties on the morning of October 27, during the
course of which she is accused of threatening
Godfrey, for Godfrey's written statement supplied
to the Respondent that day clearly states that Bear-
field handed Godfrey a "union card" in the "locker
room" and asked her to sign it. Accordingly, since
the accusation of making a threat has been found to
be false, it follows, and I find, that Bearfield's
discharge violated Section 8(a)(1) of the Act."
There remains the issue of whether the Respon-
dent's discharge of Bearfield also violated Section
8(a)(3) of the Act. This need not detain us long. It
is well settled that the affirmative portion of the
remedy would be the same whether the violation is
of Section 8(a)(1), 8(a)(3), or both.[' Therefore,
no useful purpose would be served by determining
the Section 8(a)(3) issue. Accordingly, I decline to
decide the point on the ground that it would un-
necessarily lengthen this Decision.
Upon the basis of the above findings of fact, and
upon the entire record in this case, I make the fol-
lowing:
CONCLUSIONS OF LAW
1. The Duplan Corporation is, and at all material
times has been, an employer within the meaning of
Section 2(2) of the Act, engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. United Textile Workers of America is, and at
all material times has been , a labor organization
within the meaning of Section 2(5) of the Act.
3. By discharging Irene Bearfield on October 27, .
1969, and thereafter failing and refusing to rein-
state her , thereby interfering with , restraining, and
5 N L R B v Burnup and Sims, Inc , 379 U S 21, 23-24
" In this posture of the case , I deem it unnecessary to decide whether, as
the General Counsel contends in his brief, the Respondent harbored
animus against the Union Nor do I feel called upon to determine whether
the Respondent acted under a good -faith belief that Bearfield threatened
Godfrey United Aircraft Corporation (Pratt & Whitney Division), 180
NLRB 278, fn 3
" Associated Divers and Contractors, Inc , 180 NLRB 319, fn 3 See also
N.L R B v Burnup and Sims, Inc, supra at 23, in. 2
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coercing its employees in the exercise of rights
guaranteed them in Section 7 of the Act, the
Respondent has engaged in and is engaged in unfair
labor practices within the meaning of Section
8(a)(1) of the Act.
4. The above-described unfair labor practices
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce,
and constitute unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7)
of the Act.
5. It is unnecessary to determine whether the
Respondent has engaged in or is engaging in unfair
labor practices within the meaning of Section
8(a)(3) of the Act.
THE REMEDY
It will be recommended that the Respondent
cease and desist from discharging its employees
because they engage in activities protected by Sec-
tion 7 of the Act, or from in any like or related
manner infringing upon the rights of its employees
guaranteed in Section 7 of the Act.
Affirmatively, it will be recommended that the
Respondent offer to Irene Bearfield immediate and
full reinstatement to her former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to rights and privileges
previously enjoyed, and make her whole for any
loss of pay she may have suffered by reason of her
discharge, by paying to her the amount she would
normally have earned from the date of her
discharge to the date of the offer of reinstatement,
less her net earnings during this period. The
backpay provided for herein shall be computed on
a quarterly basis in the manner established in F. W.
Woolworth Company, 90 NLRB 289, including 6
percent interest as set forth in Isis Plumbing &
Heating Co., 138 NLRB 716.
It will also be recommended that the Respondent
preserve and, upon request, make available to the
Board, all records necessary to compute the
amount of backpay due hereunder, and post ap-
propriate notices.
Upon the basis of the above findings of fact and
conclusions of law, and upon the entire record in
this case, I make the following:
RECOMMENDED ORDER
It is recommended that The Duplan Corporation,
Cleveland, Tennessee, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Discharging its employees because they en-
gage in activities protected by Section 7 of the Act.
(b) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of rights protected by Section 7 of the Act.
2. Take the following affirmative action which it
is found will effectuate the policies of the Act:
(a) Offer Irene Bearfield immediate and full
reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to seniority and other rights and
privileges previously enjoyed, and make her whole
for any loss of pay she may have suffered by reason
of her discharge, with interest thereon at the rate of
6 percent per year.
(b) Notify her, if presently serving in the Armed
Forces of the United States of her right to full rein-
statement upon application in accordance with the
Selective Service Act and the Universal Military
Training and Service Act, as amended, after
discharge from the Armed Forces.
(c) Preserve until compliance with any order for
backpay made by the Board and, upon request,
make available to the Board or its agents, for ex-
amination and copying, all payroll records, social
security payment records, timecards, personnel
records and reports, and all other records necessary
to analyze the amount of backpay due under the
terms of this Recommended Order.
(d) Post at its plant in Cleveland, Tennessee, co-
pies of the attached notice marked "Appendix.""
Copies of said notice, on forms provided by the Re-
gional Director for Region 10, after being duly
signed by the Respondent's representative, shall be
posted by the Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are
not altered, defaced, or covered by any other
material.
(e) Notify said Regional Director, in writing,
within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.'9
IN In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions, and order, and
all objections thereto shall be deemed waived for all purposes In the event
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 Na=
tional Labor Relations Board" shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
"' In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge our employees
because they engage in activities protected by
THE DUPLAN
Section 7 of the National Labor Relations Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-or-
ganization, to join or assist United Textile
Workers of America, or any other union, to
bargain collectively through representatives of
their own choosing, to engage in mutual aid or
protection, or to refrain from such activities.
WE WILL offer Irene Bearfield immediate
reinstatement to her old job or, if that job no
longer exists, to a substantially equivalent job,
without loss of seniority or other privileges,
and pay her the wages she lost because of her
discharge, with 6 percent interest. If she should
now be serving in the Armed Forces of the
United States, WE WILL notify her of her right
to reinstatement upon application after
discharge from the Armed Forces, in ac-
cordance with law.
CORPORATION 707
THE DUPLAN
CORPORATION
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, Room 701, Peachtree Building, 730
Peachtree Street, NE., Atlanta, Georgia 30308,
Telephone 404-526-5760.
427-835 0 - 74 - 46