Softexture Yarns, Inc.

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