The Duplan Corp.

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