Textile Workers Union of America v. NLRB

• Decision Date: 27 December 1967
• Docket Number: No. 86,87,31245.,Dockets 31164,86
• Citation: 388 F.2d 896
• Parties: TEXTILE WORKERS UNION OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. J. P. STEVENS & CO., Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Textile Workers Union of America, Intervenor.
• Court: U.S. Court of Appeals — Second Circuit

388 F.2d 896 (1967)

TEXTILE WORKERS UNION OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

J. P. STEVENS & CO., Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Textile Workers Union of America, Intervenor.

Nos. 86, 87, Dockets 31164, 31245.

United States Court of Appeals Second Circuit.

Argued October 10, 1967.

Decided December 27, 1967.

Daniel B. Jordan, New York City, for petitioner Textile Workers Union.

Whiteford S. Blakeney, Charlotte, N. C. (Blakeney, Alexander & Machen, Charlotte, N. C., and Paul, Weiss, Rifkind, Wharton & Garrison, New York City, of counsel), for petitioner J. P. Stevens & Co.

Janet Kohn, Atty., N.L.R.B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Glen M. Bendixsen, Atty., N.L.R.B., on the brief), for respondent.

Before LUMBARD, Chief Judge and SMITH and FEINBERG, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge.

This case is before us on two petitions to review and a cross-petition to enforce an order of the National Labor Relations Board issued on March 6, 1967, 163 NLRB No. 24, against J. P. Stevens & Co., Inc. ("the Company"). For the second time in less than a year, the Board found that the Company had engaged in numerous violations of sections 8(a) (1), (3) and (4) of the National Labor Relations Act, 29 U.S.C. §§ 158(a) (1), (3) and (4) ("the Act"). In J. P. Stevens & Co. v. N.L.R.B., 380 F.2d 292 (2 Cir. 1967), cert. denied, 389 U.S. 1005, 88 S.Ct. 564, 19 L.Ed.2d 600 (December 11, 1967), we enforced with modifications an order of the Board (substantially similar to the one now before us) issued against the Company on March 22, 1966, 157 NLRB 869. The facts of that case are the background of this one.

In the spring of 1963, the Textile Workers Union of America, AFL-CIO ("the Union") undertook a concerted organizing campaign in approximately half of the Company's forty-three textile plants in North and South Carolina. The Company notified its employees of its intention to oppose the Union, and in response to letters from those of its employees who joined the Union, advising it that any interference with the rights of Union adherents would be referred to the Board, it warned that "You will be expected and required to perform your job as fully as anybody else — if you wish to remain in the Company's employment." The Company subsequently posted on various plant bulletin boards the names of Union members who had written, together with copies of the Company's reply. Many of these workers were eventually discharged; others withdrew from the Union, and as they did so their names were crossed off the lists.

We summarized as follows the change in the Company's attitude toward its workers which came about with the commencement of the organizing campaign:

Prior to the organizing campaign, the plants had been operated in a permissive manner. Once an employee was hired, his tenure was fairly secure; discharges were uncommon. The Company was tolerant, even lenient, in such matters as absences, work breaks, transfers, and rehirings. Formal written reports of employee reprimands, known as Personnel Action Reports or write-ups, were infrequent and occurred only where misconduct was serious or repeated. With the advent of the Union, however, this attitude changed swiftly. Issuance of write-ups, often quickly followed by discharge, became common for Union adherents. Incidents or activities that had previously been overlooked now occasioned speedy and severe disciplinary action.

380 F.2d at 296. The Board found, in that case, that in the course of its anti-union campaign the Company had discriminatorily discharged seventy-one employees because of their union activity. We found substantial evidence to support the Board's findings.

During the course of the hearing in that case, the Company continued to discharge employees, and further unfair labor practice charges were filed with the Board. Some of these led to amendment of the complaint, and thus have already been adjudicated. Other charges were still under investigation when the hearing closed, and those, together with additional charges alleging further discharges and other acts of interference, restraint and coercion in the period from the close of the hearing in September, 1964 through May, 1965 are the subject matter of the present case.¹

The Board found, in the decision and order now before us, that the Company repeatedly violated section 8(a) (1) of the Act by threatening reprisals, promising benefits, engaging in related acts of interference, coercively interrogating employees, creating the impression of out-of-plant surveillance of employees, requiring an employee to go home and take off an "AFL-CIO" T-shirt, attempting to induce an employee to resign, and discriminatorily applying a no-solicitation rule. The Board also concluded that the Company, in violation of sections 8(a) (3) and (4) of the Act, discharged thirteen employees because of their union activities, four additional employees because of their union activities and because they had testified adversely to the Company in the first hearing, and one employee, not a union member, because she too had testified against the Company. The Company was also found to have violated section 8(a) (3) of the Act by discriminating against two employees in the assignment of overtime work. Finally, the Board concluded that the General Counsel had failed to prove that the discharges of six employees were unlawful.²

We have reviewed the Board's findings and the record with respect to each of the discharges covered in the Board's decision and order, and have found substantial evidence to support the findings. As in the earlier case, the evidence of anti-union action is overwhelming in some instances, and nearer the borderline in others. The Company points to alleged evidence of unsatisfactory work by each of the employees found to have been discriminatorily discharged. Even in those instances where we must acknowledge the existence of two fairly conflicting views of the evidence, we are of course not at liberty to displace the Board's choice between those views. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951).³ Two discharges with respect to which the Trial Examiner and the Board disagreed as to the Company's motivation are representative of the "close cases." As to one, the Board reversed a finding that the Company had not violated the Act; as to the other, the Board reversed a finding of violation.

Juanita B. Faulkenberry worked as a weaver in the Company's Republic plant No. 1 for twelve or thirteen years until her discharge on October 23, 1964. She had thirty years of experience as a weaver, including jobs for two or three years at the Republic plants Nos. 2 and 3. Her work record with the Company was a good one until just prior to her discharge. On March 27, 1964, Faulkenberry gave testimony at the first hearing which partly contradicted that of her immediate supervisor, Simean Dawkins.⁴ According to Faulkenberry's corroborated testimony in the hearing in this case, several weeks after her 1964 testimony, Arthur Justus, the general overseer of weaving in the plant, began to watch her work closely. During the summer of 1964, her "loom fixer" was replaced by a "learner-fixer" who had never before fixed looms. In September, she was given a very difficult style of cloth to weave which, according to her testimony, made it more difficult to start up about twenty of her looms. At about this time the weaver in charge of Faulkenberry's looms on the preceding shift complained that the job was too difficult, and was transferred to another job and replaced by one Darby, who, according to Faulkenberry's uncontradicted testimony, "would leave the warp in such a mess that it would take me two or three hours to start the looms up. * * *" Faulkenberry complained to her supervisors about Darby on a number of occasions, and requested a better loom fixer, but no action (other than promises that Darby would be spoken to about the problem) was taken. About a week before her discharge, Faulkenberry received a personnel action report for low production, which was the first warning she had ever received. According to her own testimony, her production "was real low." During her last week on the job, however, she was assigned an experienced loom fixer and her production rose substantially.

On October 23, 1964, the Company introduced a production change which involved doing away with a set of looms on each of the three shifts; accordingly, Faulkenberry was laid off and a weaver from each of the other shifts was assigned to other work. During the week previous to the change, the three employees taken off weaving were the lowest in production on their respective shifts. Justus and Dawkins both testified that other weavers with the same "learner-fixer" had higher production. Justus also testified, however, that a learner-fixer and a difficult style would affect any weaver's production adversely, and Dawkins, on cross-examination, remembered having testified during the 1964 hearings that the fixer had more effect on production than did the weaver.

The Trial Examiner, after noting that "Justus' credited testimony is that he was not aware of the improvement in Faulkenberry's production until after her layoff * * *," concluded that "Since Faulkenberry was not associated with the Union, and since her testimony at the first hearing was relatively innocuous, I do not find that the General Counsel has met the burden of proof which rests upon him and I shall recommend that the complaint be dismissed as to Faulkenberry." The Board rejected the recommendation. It noted, among other things, that "Faulkenberry had seniority over many other weavers," that "Faulkenberry's testimony at the first hearing was damaging to the Respondent's case and contradicted...