J.P. Stevens & Co., Inc.

DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD J. P. Stevens & Co., Inc. and Amalgamated Clothing & Textile Workers Union, AFL-CIO, CLC. Case I -CA-6999 June 25, 1979 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY AND TRUESDALE On March 30, 1979, Administrative Law Judge Russell M. King, Jr., issued the attached Decision in this proceeding. Thereafter, both the General Counsel and the Charging Party filed exceptions and support- ing briefs, and Respondent filed an answering brief in opposition to the exceptions filed by the General Counsel and the Charging Party. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- ' Both the (ieneral ('Counsel and the (Charging Party have excepted to cer- tain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an administrative law judge's reso- lutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Sltandard Dr) Waill Proudut. I. 91 NLRB 544 (1950). enid. I88 -.2d 362 (3d (ir 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In sec. I I. A. 6. f his Decision. the Administrative l.aw Judge incorrectly summarizes a part of the testimony of Supervisor Nelson to the effect that Nelson learned of employee Burgess' discussion with Union Attorney Fogar- ty when Nelson reported to work n February 9. This summary is unsup- ported by the record and indeed appears to he an inadvertent error on the part of' the Administrative I.aw Judge The record. by virtue of the mutually consistent testimony of Burgess. Nelson. General Overseer Guyon. and em- ployee Reed on this question, clearly establishes, tas the Administrative l.aw Judge himself correctly concludes in subsequent sec. II. B. of his )ecision. that Burgess first spoke with attorney Fogarty on March 30 and that Nelson and Guyton first learned of this conversation on April I. as a result ol' Reed's discussion with Guyton that same day. Also in sec. II. B. of his Decision. the Administrative L.aw Judge relers to "several written warnings" given to Burgess during the period February 9 through March 31. 1977. However, the record establishes only that Burgess received one written warning during this period, n March 17 Burgess' tes- timony as to a written warning in late February for staying to long in the employee canteen has, in effect, been discredited by the Administrative Law Judge. is otherwise unsupported by the record. and is contraverted by Nel- son's testimony that he spoke with Burgess about her spending t) much time in the canteen in 1976. but not in 1977 der of the Administrative Law Judge and hereby or- ders that the complaint be, and it hereby is, dismissed in its entirety. DECISION SIAIIMENI OF ILIE CASI Russlil.l M. KINO. JR., Administrative Law Judge: This case was heard by me in Greenville. South Carolina. on November 21 and 22. 1977.' and on January 12, 1978. The charge was filed by the Union on April 14 and the com- plaint was issued on September 2, alleging that on April 1. Respondent violated Section 8(a)( 1) and (3) of the National Labor Relations Act (the Act) by improperly discharging employee Debora Burgess because of her union support and activities. Burgess had worked as an oiler at Respon- dent's White Horse Plant No. 2 in Greenville, South Caro- lina. the only facility involved in this case. Respondent de- nies violating the Act and urges that the discharge was only work-related and or good cause. Upon the entire record, including my observation of the demeanor of the witnesses,' and after due consideration of the briefs filed by the General Counsel, the Charging Union, and Respondent. I make the following: FINI)INfS oi- FA( I i. JURIS)I( ION The pleadings and admissions herein establish the follow- ing jurisdictional lacts. Respondent is. and has been at all times material herein, I)elaware corporation with a tacil- itN or office aInl place ol business known as its White Horse Plant No. 2 in Greenville. South Carolina, where it is en- gaged itt the mainufacture and sale of textile products. Dur- ing a representative I-year period. Respondent's said facil- ity received raw materials from points outside the State of South Carolina valued in excess of $50,000. and during the same period shipped finished products directly to points outside of the State of South Carolina and valued in excess of $50,000. As admitted, it is thus found that Respondent is, and has been at all times material herein. an employer en- gaged in commerce within the meaning of Section 2(2), (6). and (7) of the Act. As further alleged and admitted herein, it is also lound the Charging Union is, and has been at all times material to this case, a labor organization within the meaning of' Section 2(5) of the Act. All dates hereafter are in 1977 unless otherwise mentioned. 2The facts lound herein are based on the record as a whole and upon my ohservation of the witnesses. The credibility resolutions herein have been derived Irom a review of the iTre testimonial record and exhibits with due regard for the logic of probability, the demeanor of the witnesses, and the teaching of N . RB. v. Walton Mnufi-luring Compan & loganville Pants Cornpuai,. 369 U.S. 404. 408 11962). As to those testifying in contradiction to the findings herein, their testimony has been discredited either as having been in conflict with the testimony of credible witnesses or because it was in and of' itself incredible and unworthy of belief. All testimony has been re- viewed and weighed In light of the nmire record. 243 NLRB No. 4 10 J. P. STEVE.NS & ('O. II. A.t(i:l) NFAIR I Atr)R PRA(I ( I:S a. Stmtntarv ' Ev'denc tand 7TC.i'Ttotn'' I. Employee Debora Burgess Debora Burgess first came to work for Respondent in April 1974 as a creeler and quit in June 1974. She again started to work for Respondent in November 1974 as a spooler and was thereafter laid off in January 1975. She commenced working again for Respondent in February 1975 as an oiler in the weave room on the first shift (8 a.m. to 4 p.m.). and she held this job until April I. 1977, when she was discharged. Prior to commencing her oiler duties in February 1975, she had no prior experience as an oiler. although she did receive training from fellow oilers William Reed and Earl Berry. This training consisted of approxi- mately two sessions per week for several weeks and the sessions lasted approximately 30 minutes each. As an oiler. Burgess worked with and on Sulzer machines or looms. which was one of two types of weaving machines used at the plant.' Approximately 200 of these machines were lo- cated in a weave room "a little smaller than a football field." She had oiling responsibilities over approximately 100 of these machines. There were two supervisors on each shift and her direct supervisor was Paul Nelson. The other supervisor on her shift was Ellis Sharpe. Over these two supervisors was General Overseer Thomas E. Guyton. Also on her shift were two additional oilers. James Smith and William Reed, both of whom worked under Supervisor Sharpe. In early 1977, oiler Reed became a weaver and he was replaced by oiler James Nesbitt. When she became an oiler in February 1975. Supervisor Nelson gave her handwritten instructions which were cap- tioned "My Oiling Schedule" and which she has since mis- placed,' and which indicated as follows: Monday-check and oil all lower picking units and slay drives Tuesday-check and oil all picking and receiving units Wednesday-greased fronts and backs of all ma- chines Thursday--(same as Monday) Friday-check and oil all cam boxes Burgess used an oil can and a battery-operated grease gun which was on wheels, and she related that she never used a mop and one was not mentioned in her oiling schedule. Burgess first became involved in the Union in April 1976 when she signed a union authorization card. On June 2 or 3. 3 The following includes a summary of the testimony of the witnesses ap- peanng in the case. The testimony will appear normally in narrative form although on occasion some testimony will appear as actual quotes from the transcript. The narrative only and merely represents a summary of what the witnesses themselves stated or related and does not necessarily reflect my ultimate findings and conclusions in this case. 'The Sulzer machine is an amazing and complex weaving machine that often is worked 24 hours per day. It is approximately the size of two large upright pianos back-to-back. All counsel stipulated that the original oiling schedule had been sub- penaed. but was "unavailable." Counsel fr the General Counsel also does not question the truth of the original schedule's unavailability or loss. 1976. she had a conversation with General Overseer Giu- ton in the presence of other employees, and as a result ot that conversation she informed union representative Mike Black of certain remarks (;UNton had made. suhsequentk contacting the National Labor Relations Board. In July 1976. she gave a statement to the Board, and in early Feb- ruary 1977. she received a subpena to appear and give tes- timony at a February 8 hearing. Several days prior to the hearing, she mentioned the subpena to Supervisor Nelson who indicated he knew she had been subpenaed. On Mon- day. February 7, she was summoned to Guyton's office b, Supervisor Nelson, whereupon Guyton informed her that he had received inltrmation that the hearing the foliowing day had been called off, and requested that i she learned differently, to notit him at home that night. Notwithstand- ing this, the following morning (February 8) Burgess ap- peared for the hearing. but was told "while [she was] in the courtroom that it had been settled out of court."I The fillowing day and on February 9 while at work. Supervisor Nelson signaled her and pointed to a small pile of grease" on the floor and stated "you are going to have to get a mop and get that up." Burgess replied "that wasn't [her] job." and Nelson then stated "Sharpe makes his boy do it." She then said "vwell. I am sorry. You are not Sharpe. and I am not Sharpe's boy." Nelson again asked her to clean up the grease and she again refused, stating that it I The riginal charge in this case alleged an additional violation of Se, 8(aH4} of the Act (discharging an employee for filing a charge or giving testimony under the Act), The resulting complaint in this case is void of an) such allegation The 8(a4) allegation in the original charge was inserted by virtue of employee Burgess' appearance for testimony in Case II CA 6238 This case resulted from the June 1976 group conversation between Nelson. Guyton, and a group it employees. which is referred to above b Burgess. Administrative law Judge Ralph Winkler approved an informal all-part) settlement in that case n Flebruary 8, 1977 The alleged emploer miscon- duct in that case refers to the June 1976 group conversation B virtue of Burgess' discharge n the instant case, and after compliance with the other terms and conditions of said settlement. the Charging Union filed a motion with Administrative aw Judge Winkler to set aside the settlement. Both Respondent and the General Counsel opposed said motion, but the General Counsel proposed that Case 11 CA 6238 be "held in open status" pending the outcome of his case. indicating that if the General Counsel prevailed here, that the complainl n Case II CA 6238 would be withdrawn. The Charging Union's position was that the earlier case was not actually "liti- gated," and thus the violations of Sec. 8(aXI) of the Act contained in that case constitute presetilement actisity admissable in this case,. under present Board precedent Administrative Law Judge Winkler ultimately refused to set aside the settlement and the Charging Union has appealed that decision to the Board To my knowledge. the Board has not acted upon that appeal In this case, the Charging Union was permitted to introduce into evidence a list of 18 citations of previous litigation involving Respondent, and ol which I took judicial notice. for the purpose of establishing animus on the part of Respondent n this case A list of these cases is attached to the Decision as an Appendix. {rhe appendix has been omitted from publication.] Also in this case. Burgess was initially allowed to give some testimony regarding the June 1976 conversation between Nelson. Guyton and the group of employees. which was the subject of Administrative Law Judge Winkler's earlier case I later struck most of that testimony (except for Burgess' own actiins and involvement) fr the following reasons: (I) I took judicial notice of the 18 cases resulting in previous decisions adverse to Respondent: 2) the General Counsel's position regarding the earlier case and the exclusion in this case of any alleged 8(a)(4) violation: (3) Respondent's admission in this case that it had knowledge oif Burgess' union activities dating hack to June 1976: and (4) my hesitancy in effect relitigaulng a previously settled case. That testimony of course remains in the record. but has not been considered by me in this case The testimony which was struck in the main consists ofantiuniln statements made by Guyton and Nelson to employees on the June 1976 date involved The record in this case also does not reflect the status or level (ilf ny ) of the Union's organizational activities at the mill involved herein. I I I)l.('ISI()NS )0 N IIONAI. IABOI()R R.l.AIIONS BO)ARI) was not her joh. although she did carry rags and she fulrther conceded that it was her job to wipe up oil in areas where employees would walk or step.7 Burgess further described the grease spot as being about the size of "a fifty cent piece" and related that it was located beside a cam box of' the first and end weaving machine on an "alley" or "isle."' Burgess testified that one could not walk in the alley or isle because of the presence of "poles" and the "end of the cam box," which she considered to be "under the loom." She further indicated that in order to have cleaned up the grease, one would have to slide his foot under the machines. but on cross-examination she conceded that wiping up the spot would not have required "any exertion" on her part. Bur- gess also related in cross-examination that "[ylou can be working on the machine and you can be underneath that cam box . . . with your feet. and you could be stepping on the grease, but you don't ordinarily under normal working conditions walk by and walk in those places." According to Burgess, she did on occasion clean up grease in an isle or where people walked. and prior to February 9. 1977. she would see grease spots in the same place pointed out by Nelson. Such spots usually were seen on Thursdays and after having greased the machines on the previous day. thus allowing a day's operation for the grease to get hot and drip. However, according to Burgess the sweeper cleaned these spots up. and there were two sweepers. or cleaners. on each shift. These cleaners reached these areas twice weekly. On February 10, the day following the grease spot inci- dent. Supervisor Nelson told her that overseer (iuyton had indicated that she would "have to get the grease up." and Burgess again replied that it was not her job. Later that day, she went to Supervisor Nelson's office to use the phone and she noticed a "funny mop" which she picked up to look at, whereupon Nelson then indicated the mop was for her to use in cleaning up grease.' She again stated to Nelson that it was not here job. after which Nelson responded. "you will do it or you won't be here long." Burgess also testified that she saw similar grease spots "at least once a week," and that in mid-February she told oiler William Reed about the "mop." to which he responded. "they are crazy.2 Burgess' prior disciplinary record with Respondent in- cluded two written warnings in March and April 1975. one for "spending too much time on break" and the other for "letting a machine run dry." She also received a warning in 1976 for letting a machine run dry. In late February 1977, she received another written warning from Supervisor Nel- son regarding "complaints from people about [herl" and fior "staying in the canteen too long." An additional written warning was also received in late March from Supervisor Nelson for improper oiling. Following this warning she con- tacted union representative Steve Jones. complaining about the last warning and other recent warnings. Jones then con- Burgess later apparently restricts this to "walk." I Photographs admitted in this case reflect that a cam box is located on the left end of the weaving machines near the bottom and pertrudes out horizon- tally. The bottom of the cam box is approximately 4 to 5 inches from the floor. One photograph depicts this particular weaving machine and Burgess marked this particular photograph approximately where the spot was. 9 Burgess described this mop as a broom handle cut in half with "wrap waste" or course thread tied to the end in a big knotted ball. tacted union attorney D)eborah Fogarty who in turn talked to Burgess the evening of March 30. 1977. The following day. Burgess then talked to fellow oiler Reed at work, w ho agreed to also talk to attorney Fogarty about his duties. lThat evening, Fogarty again visited Burgess and called oiler Reed by phone from her home. The following day. April I. 1977. Nelson summoned Burgess to his office at about noon and handed her another written warning for refusing to use the "mop" to clean up oil because she was a "woman," She again denied that she refused to use the mop because she was a woman and refused to sign the warning. after which Nelson accused her of "talking to people be- hind [his] back...." Upon leaving Nelson's office, she spoke with oiler Reed about what had transpired. Later in the day and on Nelson's request, she reported to Overseer Giuyton's office. Present were (iuyton, Nelson. and herself. Guyton told her that they expected her to mop the grease up, and she argued that it was not part of her job and that up until several months ago. it had never been mentioned. (iuyton then insisted it was part of her job and if it had not been mentioned before, it should have been. indicating that it had always been part of her job. Guyton further stated that employee Thelma Sharpe had fallen on some grease, to which Burgess replied that she thought Sharpe had fallen on water. G(uyton persisted that it was grease and then slated to Burgess that if she did not mop up the grease. he would, in effect, fire her."' She again refused and was then and there discharged. Burgess persisted throughout her testimony that mopping up the grease was not part of her job and that such grease. which was located in places other than those clearly in the direct path of traveled portions of the weave room, was removed by the sweepers who used a large "industrial type mop" and "varsol" in cleaning under and around the weav- ing machines. including under and around cam boxes. Bur- gess further indicated that she never saw sweepers or other oilers using a "home-made mop" like the one which Nelson had fashioned ti)r her. Burgess further related that neither Nelson nor (iuyton had mentioned Becky Sharpe's fall on grease prior to her April I predischarge discussion. 2. Former Oiler William L. Reed Employee William 1.. Reed came to work for Respondent in its White Horse Plant No. 2 in 1968 as an oiler. For the past year and a half he has been a weaver, but as an oiler he had worked on Sulzer machines under the supervision of Ellis Sharpe. Reed testified that after working as a oiler for 6 months, he was given a handwritten schedule setting out his daily oiling duties. To his best recollection, that sched- ule contained nothing about mopping up grease or oil. Reed indicated that grease would "seldom" drop from the machines on to the floor. but when it did he "would wipe it up ... [with a] rag." and that he never used a "mop." When wiping up grease or oil it would be located in a "place maybe where somebody would step on it," either in a "weave alley" or "wrap alley." Reed related that he had also seen grease under the machines themselves, but that he had never cleaned it up. He went on to explain that his machines were newer than those oiled by Debora Burgess 10 Guyton denied that he mentioned Sharpe's name in this discussion. 12 .1.P. 1S I IV INS & ((). and would tend to drop less oil, and that he wvas a more experienced oiler than Burgess and could control his grease gun. Although Reed seldom had to ipe up any grease. he also indicated that "sometimes [the machinesl would sling grease out . . . land that he] would have a rag there and wipe it up." Reed also testified that he knew Debora Bur- gess and occasionally "helped" her in her oiler's job, but never told her to mop up oil or grease because he "didn't feel like it was his] duty." Upon becoming a weaver, Reed was replaced by oiler James Neshitt who he trained for 4 or 5 weeks. During this training period. he never instructed Nesbitt to "mop" up oil or grease, but did tell Nesbitt that he should wipe up imme- diately any grease that he himself dropped. According to Reed sweepers and blowoff men would also clean up oil from the floor when they mopped with "valsol." Reed testified that in February 1977. he had a conversa- tion with Burgess in the weave room, which he related as fllows: . . she said that the supervisor wanted her to mop. but it was too heavy and he went and made her a smaller mop, and at that time she said that she wasn't going to mop, and I looked at the mop. I kind of laughed: I wasn't laughing because. you know, I didn't mop, but I thought the mop was kind of funny. On March 31. Burgess asked Reed if he would talk to a union attorney and he agreed. That evening and at home, attorney Fogarty called him and they talked approximately 20 minutes about the oiling job and what it consisted of. The following day (April ) Reed reported for work and while in the canteen getting coffee upon his arrival, he told a Miss Jeckle about his conversation of the previous eve- ning with attorney Fogarty." After working for about 20 minutes. Reed decided to go to General Overseer Guyton's office and tell him about the conversation of the previous evening because he "figured that [Miss Jeckle] would go around and blow it out of proportion...." In the office, he told Guyton about the conversation, that it had something to do with Burgess, and that he had volunteered to talk to the attorney, who was very "polite" and "nice" over the phone. Guyton asked if they were "bothering" him, to which he responded "no," and then left the office. In cross-examination, Reed testified that he now weaves on the same machines that Burgess had oiled, and that he daily sees grease and oil on the floor under the cam box, the hand wheel, and the whip row. Reed further explained that as a weaver, he also moved from one side of the weaving machine to the other, with his feet "sometimes" passing under these parts, and that as a oiler he would have wiped such oil or grease up "for safety reasons."': n "Miss Jeckle" was never further identified in the record. 4: Reed was shown an exhibit which was a small photograph of the end of a weaving machine depicting a hand wheel and cam box. This exhibit had earlier been identified by Debora Burgess and she had placed an "X" on the exhibit "not exactly but . just about" near the cam box and on the floor where the spot was located which was involved in the February 9 incident with Supervisor Nelson. Reed, in later testimony and in an apparent and unexplained inconsistent statement, indicated he would not have wiped up grease or oil "under the cam box because no one would he walking there." He also examined the exhibit marked by Burgess and testified that he would not have cleaned grease up from the point of the "X" as it was "up against the cam box." Reed did go on io explain that grease sometimes dropped near 3. Personnel Manager Jerry I.. Melton Jerry I.. Melton was Respondent's personnel manager at the White Horse Plant where Burgess worked. Melton testi- fied. from records in Burgess' personnel file. that she was discharged for refusing to obey instructions in that she re- fused to wipe up grease or oil where she spilled or dropped it on the floor. The Burgess termination slip or record was a preprinted black form used by Respondent in numerous personnel actions. Preprinted on the form are I I possible and specific causes for discharge, including quality of' work, violation of company rules, and refusal to obey instructions, which was the onl, item checked as the cause for the Bur- gess discharge. Melton authenticated three separate written warnings which had been given to Burgess. The first oc- curred in September 1976 and involved the failure to prop- erly oil a machine. causing it to be out of' sersxice for 10 hours. The second written warning was dated March 17, 1977, and involved the lack of oil in a "picking unit''" on a weavinig machine. and the third was the warning of' April 1. 1977. the date of' discharge." This final warning dealt with Burgess' refusal to wipe up grease or oil "that collects under the machines." Personnel Manager Melton further testified about an ac- cident which occurred at the plant on Februar 9 involving employee Thelma Sharpe. Among the various reports of that incident there was an accident report to the State In- dustrial Commission. That report reflects that employee Sharpe had sustained an injury when she slipped on grease which was on the floor.'4 Melton also related that the per- sonnel records of Burgess reflect that when she first began working with Respondent in November 1974. she was given, and acknowledged a receipt of. a copy of' Respon- dent's safet) rules." Melton further indicated that in the past year. three other employees had been discharged for failure to obey instructions? and below. the cam box which was depicted in the exhibit. and such grease would on ccaslon he located in an area where he now walks and such grease should be cleaned up by an oiler During Nelson's own testimony. he exam- ined the same exhibit marked by Burgess, and he also agreed with Reed's observation that he would not have required such a spot located by the "X" in the exhlhit to he cleaned up by an oiler. 11 According to Burgess. she had received five written warnings in March and April 1975 and in late February and March 1977, with the last on April I. She indicated these warnings were respectively: Spending too much time on break. letting a machine run dry. staying in the canteen too long, im- proper oiling, and the final failure to wipe up grease and oil warning 4A Item 25 of the first page of this report is in question form, as follows: "How can you present this type of accident?" Respondent's typed reply was to "reinstruct employees to watch the grease on the floor and report it to the supervis,.r" Item 28 poses the question "How could the injured have pre- vented the accident?" Respondent's typed reply here reads "By being more attentive to condition of floor and reporting any hazard." I A copy of these rules were also admitted into evidence. Item 15 of these rules reads "Keep floors clean of all lose objects and spills" Item 14 reads "Report all unsafe conditions to your supervisor immediately". and Item 18 reads "Follow the correct procedure for doing your jobh. If you do not fully understand it. ask your supervisor for help." Burgess' termination slip did not reflect that she was discharged for a violation of these "plant" rules, but for refusing to ,obey instructions. m1 They were as follows: I. Michael A. Burale. a cleaner in the weave room. discharged on January I 11. 1977. for refusal to obey instructions in failing or refusing to mop up around machines after he "blew them off:" 2. Hugh L. Brown, a yarn man in the preparation department. discharged on February 3. 1977; and 3. Steven Medlin. a sweeper in the carding depart- ment. discharged May 18. 1976. No specific reasons other than failure to obey instructionsl were given by Melton for the Brown and Medlin dis- charges 1 3 I)l('ISIO(NS 01 NAII()NAI I.AB()R R.I.AII()NS B()ARI) Melton also attended a State IJnemploy ment ('nlpensla- tion hearing regarding Burgess after her discharge. and dur- ing which testimony was received under oath. According to Melton. Burgess was asked if "there was any doubt in [her] mind that if Ishe] had cleaned up the grease and oil that [she] would still have a job to do." to which she replied "No, there is no doubt." Melton further related that al- though there were questions and testimony about Burgess' union activities at this hearing, her reply to the question "won the case for us." In cross-examination. Melton did concede that the ceil- ing in the weave room had leaked water since he came to the plant in December 1976. and that employees have slipped and fallen on the floor as a result of the presence of such water. 4. General Overseer Thomas . (;uyton Thomas E. Guyton has been Respondent's general over- seer of weaving at the White Horse Plant No. 2. where Burgess worked, f'or 5 years. According to (uyton. "clean- ers" were responsible for "blowing off machinery. and they mop up the alleys about once a week...." The duties of an oiler are to "oil and grease the machinery and to keep it from burning up. and if they spill anything on the floor, to clean it up. wipe it up." Guyton indicated that the safety rules, requiring anything hazardous on the floor to be wiped up. applied to all employees including oilers. Guyton testified that a weaver needs to change "the fill- ing" on a loom several times a day and during this process. the weaver, out of necessity, has to bring his feet "within close proximity" of the cam box.'7 Guyton urther related that weavers also had to step in close proximity to other areas or parts of the weaving machines including under the "whip row" and the "hand wheel," from which grease occa- sionally spilled from fittings to the floor." Guyton testified that he learned of employee Thelma Sharpe's February 9 accident from her immediate supervi- sor, McAtee. who that morning explained how the accident occurred and took (uyton to the scene after Thelma Sharpe had been taken to the hospital. McAtee told Guy- ton that Sharpe had slipped and fallen on some grease lo- cated on the floor at the edge of a machine near a whip row.'9 Guyton then (on February 9) called his supervisors in 17 As explained earlier, the cam box is located on one end Iof the machine several inches off the floor. It apparently contains an oil reservoir which is supplied with oil periodically by the oiler. Occasionally. according toi Guy- ion. when a reservoir was overfilled by an oiler. oil would run out of the cam box and drip down beside it and on the floor. Several photlographs of the cam box end of the machines were admitted into evidence after being iden- tified by both employee Burgess and General Overseer ;Guylon. As also related earlier. according to Burgess it was oil near such a cam bo (and (ion the floor) which was the subject ofthe February 9 grease spot incident which occurred between herself and her Supervisor Nelson 18 Photographs of these areas and parts were also admitted into eidence and used during Guyton's testimony. i* The term actually used here by Guyton was "whip roller." Fronm a photograph admitted and depicting Sharpe's fall scene it appears that the part was earlier described by Guyion and appears in other photographs as a "whip roll." Employee Sharpe. herself and in later testimony. confirms this and further confirms the general accuracy of McAtee's description ,f 1 her accident to Guyton. Guyton also prepared the accident report to the State Industrial Commission, earlier identified by Personnel D)irector Melton. the oflice and instructed them. "especially'' Nelson al ri Sharpe. to remind their oilers that thes should "wipe up an lthilig h;lt they spille"d." 2" iunyio ;tcknowledgedl the rt)of leak in the weave room. but indicated the leak was not near the area o' the Sharpe accident and that there had been no slipping accidents from anN cause in the planlt fior the last 6 months. Subsequent to F:ebrualry 9. Giutoil aga iln saw grease ion the floor and on or about March . he again talked to Su- pervisors Nelson and Sharpe and asked them if thev had reminded "their emploees' to wipe up grease o oil. to which thes indicated that thes had. He thereafter learned that Nelson had given Burgess a erbal warning anid had lashioned a special nlop for her use. 'Ihe mop, he indicated, was so that she uould not have to ' "squat down" to wipe up grease and oil. hut was not satislactory ior "a big spill." Subsequentl. and again on April 1. (uytonl saw "three or fitir" grease spots ulnder a hand wheel and "cloWt n atrotind thile canl box'' of' lootms or weainig ti;tchiies. arni again he spoke to Supervisors Nelson and Sharpe. Sharpe related that he had again spoken to his oilers ald that thes w'ere wiping the grease up. Nelson replied that he had spoken again with Burgess. hut thatl she "refused." 'lhenl (iuston instructed Nelson to give Burgess a written warnilng' Nel- son complied with (iuyton's instructions anid the varrning was given to Burgess during lunch. Aflter lunch, (iuItonl reviewed the warninig with Nelson and concluded that it was not clear enough and could be misunderstood. lie in- structed Nelson to bring Burgess to his otltice to go over the warning again. Nelson returned with Burgess anld thex weClit over the warninig together. (jiuton explaining that she (Burgess) did nut ha;ve to use a mop, bhut could nmcrel use a rag i she desired. (iiulon ialso mentioned, as sated in the warnling itself'. that she htad "relfused," to which Burgess again replied that she "wasn't gloing to do it." 2 (iu\ton again requested that Bulrgess comply. aid aga.lin Burgess reifused. stating that it was not part of' her job. Guyton then responded that Burgess did not leave him any alternative except to discharge her and ''get someone to put on the job that would do it because thile rest of' the employees were doing it." (iuNon maintained that he only asked Burgess to wipe up oil and grease in the "''whip row. under the cam box and under the hand wheel." areas which are not "under" the machines. and areas which. according to Guy on. the veav- ers and others walked. Guyton reiterated that the only re;a- son he discharged Burgess was because "she would not wipe up grease and oil as she was told to if she spilled it." tie related that it was the duty of eery employee to wipe up oil and grease when they saw it. indicating that he was 2tt Nelson ind Sharpe were irst shillft superilsor , rsa; l oilers onls srtork ed on the first shift The actual weavers were paid on a volume basis and olper- ated between 18 to 20 machines at one time. "('reelers." who placed "cheeses" onto the looms. operate 165 machines a piece. Additionalls. ther employees who are working in the veave room at the s;lme time include not only cleaners and oilers but wrap hangers. loom iers. cloth dltTers. and supervisors. 21 This warning was earlier idetified by personnel director Melltin. as vell as (iu ton. and later b Nelson. and was admitted into esidence 22 (iuyton makes clear in later testimon that Burgess confined her reusal to three areas, under the whip row, the hand wheel .tand the canl box. indi- cating that she would continue to clean up grease and .il hen found in the "big alles." 14 J. P. S VE!F out in the plant eers da and that he himself had iped up oil and grease on occasions. (iul ton ias also present at the subsequent state unemplo) yment competnsatiton hearing and confirmised that Burgess testified that she would still h;ave a job if she hadl agreed to ipe up grease and oil ias in- strutclted. (Gucton acknoiIwledged that he had talked to emploee William Reed af:er Reed had his telephone contversation with union attorneN Iogart, at the request of' Burgess. Ac- cording to G ;u ton, Reed related that attorne Fogart3 had asked him if: as an oiler, it was his duty to ipe up grease, and Reed replied that it was. GuIton ackLnowledged that Reed also informed him that Burgess had cont;lcted the lawyer and had requested that he talk to the lawyer regard- ing an oiler's duties. and further that the lawyver disagreed with Reed regarding these duties. 5. tn plooee (Weas er) helina Sharpe Thelma R. Sharpe testified that at approximmltel? 6 a.m. on Februarr' 9, and while at her job, she slipped and fell when walking between two looms (nachines) aid hit her head "on soriething." She related that she exaiin ed rlhere she had fallen and discovered she had slipped onl "some grease" on the floor and that her "foot prints" were still on the grease and "on [herl shoe." ler supervisor, Jalies McAtee, came to her aid and asked her what had happened and she replied that she had slipped on some grease. point- ing to the grease on the floor. McAtee immniediatel\ cleanled up the grease with the rag and its she was getting up from the floor she "hblacked out." and was taken to a hospital emergency room. Sharpe speculated that the grease spot was initiall "abhoul the size of an egg" alid after she h;lid fallen it was "'about a foot long.'' Ihc spot U;as located "11 back of the wea ver's aleie ... in the back of the loom . . . next to the switch box." and "near" the hand heel. Sharpe further testified thlat "ue reals don't haie lthlat much grease to *worrv about and I wasn't looking for grease.... "She talked to General Overseer Ciu ton the following morning and told him about the fill. She was asked if (iuyton told her or instructed her on what to do about such grease spots in the future, to which she re- sponded, "... I guess he didn't expect fior grease to be on the floor." Sharpe further indicated that (uI ton stated he hoped it wuould not happen again i the plant. 6. Supervisor Paul Nelson Paul S. Nelson was an assistant overseer or supervisor ov er Burgess. Nelson testified that when Burgess came back to work as an oiler in Fehruary 1975,. he knew she had no prior experience at this job and he thus prepared a "wtork schedule" fr her "to familiarize" herself with the parts of the various machines she was to grease or oil on the various days of the week. Nelson indicated that this schedule con- tained nothing ahout cleaning up grease or oil. 21 (Juyton acknowledged he knew. ia this hearing, ha the charge Ih this case had been filed. and that he further knew it the nion's rgaiil.onal attempts and acti'ities which started in June 1976 tHe urther conceded that he would not like the plant organl7ed NS & (O I1 When Nelson reported for work on Fehruar\ 9. he learned rom General Ov erseer Guyton of oiler Reed's con- sersation with the union allorney and he further learned of' Burgess' involvement regarding the conversation. I.ater on the morning of' Fehruarv 9. Nelson also learned of Thelma Sharpe's fall from Guvton who instructed him and Super- visor Sharpe to "have [their] oilers clean up the grease when the, spilled it, where it ran over onto the floor or anx thing like that." I'hereafter, he talked to Burgess and pointed out to her some grease on the floor under a hand wheel." tie told her about Sharpe's fall which he indicated had oc- curred in Burgess' area. tie also pointed out that the adja- cent oiler (Nesbitt) `as cleaning up oil. and he asked Bur- gess to clean it up. but Burgess did nothing or said nothing. and onlk "shuck her head."' A.ccording to Nelson. emplo,,- ees ould step in such an area. and thereafter he talked to Burgess about twice regarding cleaning up oil and grease (hbetween the period Februar 9 and April I). Abhout a week later (after Fehruar 9). Nelson testified he prepared a small mop for Burgess to use, and which could be operated with one hand. According to Nelson. oiler James Neshitt, on adjacent machines. used a larger mop. but which he thought ma! have been too heav\, for Bur- gess.-' Nelson indicated that he did not require Burgess to use the small mop and that his onlx concern was that she cleanedl up the oil or grease using either the mop or a rag. Nelson testified that on April I. iGuvton met with him and Supervisor Sharpe and asked them if their oilers were cleaning up grease fromn around the hand wheel and cam boxes. Nelson replied that Burgess ,,,ts not and refused to do it. (ins ton then instructed Nelson to give Burgess a swrit- ten w ariing. which he did in his oflice about I a.m. When discussing the warning with Burgess. Nelson indicated that her onl repl was that it as not her job. iHe then took the vwritteln iarnilg to (iuton. sho later asked theml hoth to meet x Iit him in his ofice. Whle in his office. (Gu ton ag;in w raullCd Burgess about not cletaninig up grease under the hand heel. cam ho. and ,ship roll. which he stated were part )of ichr joh. Nelslon futrther testified that their re- quests onlo, required Burgess to reach down with a rag and clean i up spots hich \ ere not over an inch in diameter. (uStonl repeated the request se`xeral times and Burgess re- fused. insisting that itI as not part of her johb.2 Guyton then said he had no alternati e. asking Burgess if' she knew what that (alternalive a,,its, to which Burgess replied "yes." 4 Nelson denufied here thls grease was on a photograph or a hand wheel hich had been earlier admitted Into esidence. 2" Nelson conceded thai by rirtue ot the nolscment of Burgess and Reed with the union aitorne. he ftll that Burgess was talking behind his hack. and he made Ihis point lear ti, Burgess during his Fehruars 9 grease spot incident. 2' Regarding grease or oil on the looir under a cam bohx. Nelson indicated ii would not he the duty oftan oiler it clean up grease or oil located tar under a cam boh, as "normially lemplosees] wouldn't he stepping in it " Such grease would normalls be remsed h "cleaners From the photographs admitted in this case. the cam box appears ts a rather large and rregular shaped protruding box on the hand heel end of the machine. Nelson did indicate that the feet of emploees would come in contact with te floor area under the front part of the cam hix., here oil r grease also occasionally dropped. as is also true under the whip roll. 2 No ther witnesses in Ihis case indicated that oilers used a mop of ans tbPe : According Iio Nelson. he mop neser calme up during this April I meetl- ng I)('ISIONS ()IOF NAI'IONAI. LABOR RFI.AlIONS BOARI) Nelson acknowledged the earlier Board complaint (June 1966), indicating he "had a labor charge brought against [him]," and he further indicated that he knew Burgess was involved in the case. Nelson further testified that he also felt that Burgess spent to much time in the canteen and away from her job. and he would talk to her about this "any number of times" in 1976, when the "problem was really bad." 7. Plant Manager L. B. Howell Respondent's plant manager. L. B. Hlowell, testified that at around 10 or II a.m. on April I, Guyton came to his office with Burgess' written warning which they reviewed. He concluded that a portion of the warning dealing with the "mop" was "sort of vague" and could be interpreted as requiring Burgess to use a large or heavy mop. lie thus instructed Guyton to go back and discuss the warning w ithl Burgess. and to explain to her that they were not requiring her to "mop under machines." lowell further testified that after lunch. Guyton came back to his office and explained to him what had occurred, infborming hin that he had dis- charged Burgess for failing to obey instructions. Howell also conceded that sometime previous to April I he had learned from Guyton that Burgess and Reed had talked to the union attorney, but denied that this influenced his deci- sion not to reverse (iuyton's discharge of Burgess. B. Evalruation of' Law and Evidc'n n andl Initial ('roncl.sion The General Counsel and Charging Union begin in this case by attempting to show, in effect, that employee (oiler) Burgess was performing her job.? Attention is then ficused on Burgess' union activities and involvement, past and pre- sent, and finally on Respondent's union "animus" or anti- union convictions. These matters will hereafter he discussed in reverse order, and ultimately I will find no violations of the Act and recommend dismissal of the complaint. Respondent's past anti-union convictions or union ani- mus is well documented and reflected in previous litigation. much of which I take judicial notice of in this case, and in which I hereby find and conclude that such animus did exist.'" Respondent knew of Burgess' union activities and 25 Her job,. of course, consisted of' the tasks, assignments, and instructions as defined and given to her by Respondent, her employer With this there certainly could he no disagreement. Any deviation by Burgess (or any em- ployee) would he inexcusable except where the duties and instructions were discriminatory or repressive, or were either ambiguous, thus reasonably sus- ceptible to more than one interpretation, or where the means of achieving and performing the job were left to the employee's devices. In the latter two instances. later clarification may well be needed. In any event, it is the em- ployer who defines the job, and not the employee. IO Counsel for the Charging Union, early in the case and at my request. drafted and submitted an unrestricted list of cases finding such animus. The list was admitted into evidence and includes those cases of' which I take judicial notice. These cases were again listed, with full citations added, in an appendix to the General Counsel's brief filed herein. That list,. as prepared by the General Counsel, is also attached to this Decision as an appendix. IThe appendix has been omitted from publication.] Such a list involving cases adverse to the Charging Union was denied Respondent. Notwithstanding the admitted list, the Charging Union by the counsel and throughout the case, made (or attempted to make) frequent reference to Respondent's past perva- sive and unlawful conduct in the labor field. I am thus lead here to speculate as to whether the Charging Union's position was to infer that the (General sympathies, and that they commenced at least as early as June 1976 when she was involved in the earlier Board case wherein her activities and interests were adverse to Respon- dent." Burgess' contemplated appearance as a witness in that case came on February 8, 1977. The first so-called "grease spot incident" occurred the tfllowing day and on February 9. and atter employee Thelma Sharpe's fall earlier that day." There tfllowed several written warnings for var- ious reasons, and in late March Burgess contacted the Union about the warnings. Thereafter union attorney :o- garty came to Greenville and talked first to Burgess on March 30. and then to former oiler William Reed the fil- lowing day. Soon after reporting for work the next morning (April I and the date of Burgess' discharge) Reed told Gen- eral Overseer Guyton that he had talked to attorney Fogar- ty at Burgess' request. I find that on the date ot'and prior to Burgess' discharge,. Respondent further knew that Burgess had successfully sought the help and aid ol' the UInion.'' I now turn to the issue ofl' Burgess' job performance and her refusal to obe\ the instructions oft Supervisor Nelson and General Overseer (iuyton. There seems to me to be no question whatsoever in this case about the refusal which was readily admitted by Burgess during her testimony. he main thrust here rests in Burgess' proposition that the in- structions to clean up oil and grease from certain areas (the floor under the cam box, hand wheel, and whip row) were improper as not constituting part of' her job. and thus both compliance w'as unnecessary and refusal legitimate. With- out conceding the propriety of this position?14 it lacks little or no support in the record and evidence. In her position. Burgess perceived that her only obligation was to clean up oil and grease where employees "walked."' These areas ('ouIel',s burden O1 pri..t. in all ollci respects, was lesselned because f Respondent's labor hlstols (It couilsc i i rlot A single. small .i and unprelell- tulls caliber bullel thriugh th he ic;a hllns Ihe same result as multiple bullets ofl much higher icalher Noil ol is the rcsiult he sanle it cannot hbe compolnded. '1 Counsel lkor Respolden offered to, so stipul;le. and n this proposed slipulation, Respondenls counsel cknoeledged hat it was Burgess herself who aclually filed he charge (Case II (A 6258X a fact which is not actu- ally in evidence in this cae. ~2 Sharpe's fall icc urred m l Burgess' area of responsihility " Ihe General Counsel in his briel'. cha;raclerizes this contact as ,i re- newed affiliation I question he accurac io his chilraacteriatllion. which in my opinion lacks evidentiary support in the record Ir ir r against Ihe same. The recilrd s also not specificalls clear ils to ex;actl) h, Hurgess contacted the Union By her own account. the contlt wias made because I "whal had been going on in the plant concerning me and my warnings and so n." Although admittedly not evidence in the case, attorne i logarty solunlcers on the record that she came to Greenville I) insesigale Burgess' "alleged claim of harassment." Of' course it would he mere speculation as to the outcome of' attorney Fogarty's "investigaion" il' in i:lct there had been no discharge. notwithstanding oiler Reed's unsupporlh e remarks concerning the duties of an oiler. " As noted earlier, in the normal order ofl hings. it is the employer whi defines job duties. and not the employee. it Considerable uss was made in this case over a possible distinction be- tween the terms "walked" as opposed to "stepped," Whether one steps be- fbre he walks, or walks belore he steps, may well he the subject of' eternal debate. as in the case of the egg and the chicken. iHowever since this case involves only "adults" who long ago took their first inlant "step." I consider herein that walking and stepping are the sme. 'The oInly possible distinction that could be made in this case insolves the weasers. about which it could be said that when working at their machines. they "step" from nc area of the machine toi another. 16 J. 1 SVENS & ('(). consisted mainly of' isles or walkwa's. Bugess had been given an oiling schedule indicating the parts of' the x'eaxi ing machines to he oiled on the various days oi' the week. I'his schedule admittedly contained no insrucions regarding the wiping up ol grease or oil from any area. It is urged that the lack of such instructions support Burgess' perception or conclusion that she was exempt from cleaning in the three contested areas. I find this contention to he somewhiat curi- ous and without merit. Would it not follow that since the schedule made no mention of cleaning or wiping up of ans grease or oil. such duties of an, nature froni an', area were not included in the joh? This of course does not square with Burgess' admitted responsibilities in areas here people "walked.""' The testimonv of former oiler Reed. Superv isor Nelson, and General Overseer (Guston support the conten- tion that the three questioned areas invol\ed usage hb other employees and should have been of concern to Burgess as directed. The numerous and explicit items of graphic ei- dence admitted in this case, gives total support to this con- tention." It was only Burgess. helsel'. and hby and through her own personal opinion. who urnished an, eidence in this case indicating that cleaning oil from the questioned areas wlas not part of' her jioh. The contrary w;as made clear to her throughtout February and March. and ater em- ployee Thelma Sharpe's faill on grease of' Fehruar', 91." t the April I meeting. and prior to the actual discharge. (IIu- ton's instructive statements regarding the areas to he cleaned were repeated and made abundantl s clear. thus dis- pelling an) possible and remaining questions aboul areas t he covered. 'o this delineation and these req uests or in- structio ns. the response was equall\ and irmly cle.r re- fusal. " I should he noted thal when urgess tirst (a.ne to w,irk lot Responldeil In 1974. she acknowledged receipt of r Lops il the '"sles rule."'' reqiriig floors to he kept clean of all lose obhctis .nd pill,." and requrlng rile cpor- ing of all unsate condillons ,. supers,,tr inrnedlle tIh ese rules lso directed emplye)es to follow the correct prledure or diing their joh. spel- tying that it one's job is nol fully understoatd. the employsee should aak his superisor for help H ever. I give little weight to these "alet? rules" because of their general or standard nature. and because ot Burgess' receipt of them sme 3 e.lrs pritr Io the events in this cse 7" 'he adjacent ilel. under Supersistsr Sharpe. cleaned tup such ,)l and grease. using a large brlooum r mop When Nelson during the I ebhruar 9 incident, pointed out to Burgess that Sharpe', oiler cleaned such il .llid grease up. Burgess responded by prtrclalming that she was not one if "Sharpe's b)s." Subsequentlly Nelson fashioned a sniall honienmade Mtop for Burgess ito use. I'hls apparentl) embarassed and intfl.lmed Burgess. a.nd also added additional firmness 1to her position. 1 I discredil the tev. sgnilicanl portlonn tof Burgess' lesIllmoln In this c.ase. including her denial of the esilmin) of (iuslon and Personnel )irect,r Melton that she acknowledged, at the later state unemplomenl compensa- tlon hearing, that she had no doubt that f she hadJ cleaneI d up the grease and oil as instructed she would still have a job I his denial was senseless Io nle. especially considering her repeated acknowledgemenl it' her irm relusals Burgess' "walk step" shifting replies to sgnificanl and poilned questins. frequently colored with exaggerated smirking and near giggling, and at other limes with unexplainable lethargy, and further occasionally demrnstrating a "ltxok what I have caused" proudness. caused me t conclude that her gen- eral credibility in this case was wanting "' It is true that there is no evidence in this case indicating that Burgess was warned about cleaning up grease r t.it prior toi Februar, 9. the das titer she appeared to give testimony against Respondenl B the same token how- ever. there is also n evidence that there were grease falls prior it Thelma Sharpe's February 9 tall. which was tl a serious nature I he only reference Now to the meat e case. i.c.. 1not.tit1. antd whiether or not the union invslseme l contributed. t Icastl parti;ll to the dischargeY By union Invol emienlct I speak of here not only Burgess' past acti ities. bul her call tfor aid in the present ituatlion. hbe tiring of the discharge in this case a ew hours alfter (itl, ton andt] Nelson had lear ted l t' the Union's inhxolvemlent through former oiler Reed, consti- tuted the (ieneral ('ounsel's best shot il this case. loss\er. I perceive that the truth of' the matter went like this. Bur- gess. ls a yNung lady-oiler. toiok a position earl> onl (tit leist goi ng back l io ebruar I reg;lrdirig the e I.;lll ig iup of It i and grease frote certain a;Ireas. 'Whether righlt or ,s rolig (lxI I think wronlg tir incrorrect in this easel, she ssas hound indil determined to stick to to tiltt positiol n nltltcr \\ hilt. WhenIl she st that this positioin was leading to trouble int tltldilg potential or potssible discha;rge) she c ein to the l niion tlor help. \When (uit'toll ifoundl ot. he deticti ' mined Io prtiomptl m;ake it ahbsolutel, clear Io Burgess. illd itlitecil ,lo I the I nion (iho al that time did nlot represeint thie clmploy ee. ias to exattl \v lht Burgess' dlutles xv, rc. I he eonlererlce. which resulted in the discharge, ;t ca;tlledl h (ii nuton t'ter readilig Nelson's eiarlier rittlen w;vtriniLg ati d(]tlsi>si,,g It with P'laltil :l;tinager losll. aind thlciLltterl fzclrl lrtililg that It rlita hili.e Int'erred the use of '' "monp" ts requlrled In light of Burgess' absolite nitn polnt blank relusal. (u- I1i) hald I( choice bill to disc'iharge¢ her.' I iild 1IILd el- chide that BurIgess aas discharged solely Mticd 0tiy f t hetr retfusal t perforim all of te re;lsoll;hle reqlitellnelts of Ter johb. (C) Nt I I (l)',S Il I N I. Idl t th Rsonlldeitlt. J 1'. Stclls .N ('o.. Ilc.. is ll elllploclr elIlgI;lg III ctlili1ice \ Iltill tIhle Itleittl11lg II Sec- titil 2) and (71 o tIhe \t 2. Il thl ('h11reiL g IlloIi. itic .'\lllliitil l;ltttl (C'IotlIIII, ir the record i o'thtr iltldetlt a.s (ui.Ittt' Eili.trk that there liiad ee it 'lipping tllisIl Iru .ilIs t.LJIC I. mnihs prior he Sh.llpe' tI 1 Ms ultitltllai resull helelui .and Ih rlsons iherefore. nIl.lke it llllC sIrils Io .anls,'e the Iwo lii)n conmpellUig teslt rel.lJle o c .lIU.lltli. lhe "pari.l nllotl.alulln " ' test andl the "hui lr" 1 I he ailuhlts ill Usilg ,ii 'r the other eit these tess .as i hbarilrleltcr ill icll.slrilg 1oatlu )Is It 0, \it I the slubject 1 cnsiderable tcintrl.ersN at thls Illrc I nder Bo.lrd preeldcilt which Im on oundti (o ftOllt. it ''-prl" o1t !he le.llil ft r Il lile r iliil 1 unlawful, II itilitics the At. Ih ) i (ocpa)h iI,,t td () i ,,i ruton. 224 Nt R B 574 1976t l [hct I irs ('irclit h, disalgreed i g tou,ls l See I.ih,,l ittutual / ,n ( ,, S N /. R B, S2 2 I 1i1 i(' l 1'97t 'I As Judge \rlrch stated Il h ILoncurrinig opinl.lln ll i i ,l %1ituI. ,ulpr la l T(} 1. sil lld I quotle) jis iatllier of husinless ludgilcnl there iut hc olN ilo t ,1 urt' openi ti niiln.ageileliil hen n eiiplosee persists ii glg I [lh tecr As the oard ,lso stated In Atu ithi ( tt/tpatu Ih N RIt l616 I2 ( Iq96,) the mere actl Iha a epioser nas desire t lerimrtitc ai1 ctrlp.'sc because e engages in unv elcorile llcriel itt is' dcecs 1l. t it ellet esltablish the unlaxfulness tt .a subsequent dtharge 11 n eniplosee prositles an erploser v.th a ufificleUl ilse or his , asittissal hs elti.g- ing i11 tunduc lot whlih hie Vulld he been erimuated 1 .iiis cxciIl. and he epliser tfischarges hi li tr i.l leil. tihc irctlis1lilte IhaI the eilploser el,'etlllt the opporlits it' lI1hilIlgC itan Itll r.ikc it dScrnrimiltor ad herelire IlIItaLI )DECISIONS O() NAFIONAl. IABOR RELATIONS BOARI) & Textile Workers Ulnion, AFL ('10, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. That Respondent's discharge of employee Debora Burgess on April I1 1977. did not constitute an unfair labor practice in violation of' Section 8(a){ I ) and (3) of the Act. 4. hat Respondent in this case, has not otherwise vio- lated the Act. Ulpon the foregoing findings of fiact, conclusions of' law. and the entire record, and pursuant to Section 10(c) of the Act I hereby issue the following recommended: ORDER4 2 The complaint herein is dismissed in its entirety. " In the event no exceptions are tiled as provided hb Sec. 1246 l I he Rules and Regulations of he National Labor Relations Board. the findings. conclusions, and recommended Order herein shall. as protidcd in Sec 102 48 otf the Rules and Regulations. he adopted h he Board and become its findings, conclusions. and Order and all oblectlions thereto h;all he deenmed "aived lor all purposes 18