California Textile Mills

National Labor Relations Board - Board Decisions

Jun 3, 1958

120 N.L.R.B. 1245 (N.L.R.B. 1958)

CALIFORNIA TEXTILE MILLS 1245
hoga County, Ohio, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act:
All full-time and regular part-time selling and nonselling
employees, including active "extra" employees who worked 720 hours
during the preceding year, all artists, copywriters, proofreaders,
window trimmers, payroll clerical employees, secretaries to merchan-
dise managers, accounts payable clerical employees, and statistical
department employees, but excluding all employees covered by existing
collective-bargaining contracts, all confidential employees,14 the regis-
tered nurse, all extra employees working less than 720 hours during
the preceding year, the purchasing agent, the head merchandise
adjuster, the assistant ]lead merchandise adjuster, all other mana-
gerial employees,15 store detectives, night watchmen, the assistant
traffic manager, the receiving room supervisor, selling and nonselling
assistant buyers, the unit control supervisor, the training director, the
elevator supervisor (or dispatcher), the head cashiers at the branch
stores, the accounts receivable supervisor, the will call department
supervisor, and all other supervisors as defined in the Act.16
[Text of Direction of Election omitted from publication.]
14 Stipulated as secretaries to the president , comptroller , and store operating manager ;
and personnel clerical at the main store.
15 Stipulated as buyers , merchandise managers , division heads of branch stores, traffic
manager, director of stock, outside competitive shopper, display manager, and floorlady.
10 Stipulated as general ledger bookkeeper , sales audit supervisor , accounts payable su-
pervisor, statistical department supervisor, cashier and payroll supervisor, credit manager,
assistant credit manager , employment manager , maintenance superintendent , assistant
stores operating manager, packingroom supervisor , personnel managers at branch stores,
store managers at branch stores, superintendents at Lakewood and Lakeshore stores , assist-
ant manager and superintendent at Euclid store , assistant store manager at Lakewood
store, promotional manager, and advertising manager.
California Textile Mills and Bay Area Joint Board of Textile
Workers of America , AFL-CIO. Case No. 20-CA-1269. June 3,
1958
DECISION AND ORDER
On October 9, 1957, Trial Examiner Maurice M. Miller 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 Intermediate
Report, a copy of which is attached hereto. Thereafter, Respondent
filed its exceptions to the Intermediate Report and supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with the case to a three-member
panel [Members Bean, Jenkins, and Fanning].
120 NLRB No. 169.
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, the exceptions and brief, and the entire record in
the case,l and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, California Textile Mills,
Armona, California, its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discrimination with respect to the hire and employment tenure
of any of its employees, or their terms and conditions of employment,
by discharge or otherwise, to discourage membership in any labor
organization.
(b) Interference with, restraint, or coercion of its employees, in any
other manner, in the exercise of their right to self-organization, to
form labor organizations, to join or assist Bay Area Joint Board of
Textile Workers of America, AFL-CIO, or any other labor organiza-
tion, to bargain collectively through representatives of their own
free choice, or to engage in other concerted activity for the purpose
of collective bargaining and other mutual aid or protection, or to
refrain from any or all such activities, except to the extent that such
right may be affected by an agreement requiring membership in it
labor organization as a condition of employment as authorized in
Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer E. Ray Birdsall, Andrew J. Kapics, and Linda Rose
Vierra immediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their seniority or
other rights and privileges previously enjoyed, in the manner set forth
in the "Remedy" section of the Intermediate Report.
(b) Make whole each of the employees designated for any loss
of pay or other incidents of the employment relationship which they
may have suffered because of the discrimination herein found, by
the payment to each of them of a sum of money equivalent to that
which he or she normally would have earned as wages between the
dates on which they were subjected to discrimination and the date on
which Respondent offers reinstatement to them, in the manner set
I Respondent 's request for oral argument is hereby denied as the record and brief ade-
quately set forth the facts and positions of the parties.
CALIFORNIA TEXTILE MILLS 1247
forth in the "Remedy" section of the Intermediate Report, less the
net earnings of each, if any, during the period in question.
(c) Upon request, make available to the National Labor Relations
Board or its agents, for examination and copying, all payroll rec-
ords, social-security payment records, timecards, personnel records
and reports, and all other records necessary for a determination of
the amount of back pay due and the kind of reinstatement appro-
priate under the terms of this Order.
(d) Post at its plant in Armona, California, copies of the notice
attached to the Intermediate Report marked "Appendix A." 2 Copies
of the notice, to be furnished by the Regional Director for the Twen-
tieth Region, shall, after being signed by an official representative of
the Respondent, be posted by the Respondent immediately upon
receipt thereof and remain posted for sixty (60) consecutive days
thereafter in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable care should be taken
by the Respondent to insure that these notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for the Twentieth Region within
ten (10) days of the date of this Order what steps the Respondent
has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint filed herein be, and it
hereby is, dismissed insofar as it alleges unlawful discharge of Fred
Schindler and violations of Section 8 (a) (1) of the Act other than
those found by the Trial Examiner.
9 This notice is amended by substituting for the words , "The Recommendations of a
Trial Examiner " the words . "A Decision and Order " In the event that this Order is
enforced by a decree of a United States Court of Appeals , there shall be substituted for the
words " Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United
States Court of Appeals, Enforcing an oidei "
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and amended charge, each duly filed and served , the General
Counsel of the National Labor Relations Board, in the name of the Board, caused
the Regional Director for the Twentieth Region, San Francisco , California , to issue
a complaint on June 17 , 1957, under Section 10 ( b) of the National Labor Relations
Act, as amended , 61 Stat. 136. The Respondent designated therein, California
Textile Mills, was charged with the commission of certain unfair labor practices
under Section 8 (a) (1) and ( 3) of the statute . Copies of each charge , the com-
plaint, and the Regional Director 's notice of hearing were duly served upon the
respondent employer. And an answer submitted in the Respondent 's behalf was
subsequently received ; therein the firm admitted certain of jurisdictional allegations
in the complaint, but denied the commission of the unfair labor practices charged.
In the complaint , the General Counsel had alleged , in substance that: ( 1) various
officers, agents , or representatives of the Respondent , at various times, had inter-
rogated certain employees with respect to their own union membership , activities,
and sympathy , and that of other employees ; various representatives of the firm had
attempted to place a meeting sponsored by the Bay Area Joint Board of Textile
Workers of America, AFL-CIO, herein designated as the Union, under surveillance,
and that they had, in fact, done so; designated representatives of the Respondent
1248 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD
had attempted to persuade certain employees to engage in surveillance and espionage
to discover the identity of employees who were union members, engaged in union
activity or sympathetic to union organization; they had warned certain employees
to refrain from assisting or joining the Union or retaining union membership; and
that they had threatened certain employees with discharge or other reprisals if
they joined the Union or rendered it assistance; and (2) the Respondent had dis-
charged certain designated employees on specific dates, and thereafter failed or
refused to reinstate them, because of their union membership and activity.
The Respondent's answer, duly filed, subsequently conceded the General Counsel's
factual allegations with respect to its organization and business activity, but refused
to concede its involvement in commerce within the meaning of Section 2 (6) and (7)
of the Act, as amended. It also denied the status of the Bay Area Joint Board of
Textile Workers of America, AFL-CIO, as a labor organization, upon the ground
that it lacked sufficient information upon which to form an opinion or belief with
respect to the allegations of the complaint in this respect. With respect to the dis-
charges alleged to have been discriminatory, the Respondent argued that each had
been occasioned by
a periodical slow season in the business of Respondent whereby the pro-
duction of the Textile Mill was curtailed sharply due to lack of orders. . . .
The Respondent asserted, also, that three of the employees designated in the com-
plaint as employees dismissed discriminatorily had, in fact, been discharged because
of their low production, lack of aptitude for the work at which they were employed,
and a general lack of capacity for spinning work; the remaining employee designated
in the complaint as an employee discriminatorily discharged was characterized as
an employee who had quit on her own volition. On the basis of its answer, the
Respondent requested the complaint's dismissal.
Pursuant to notice, a hearing was held before me, as a duly designated Trial
Examiner, at Hanford, California, on August 13 and 14, 1957. The Respondent
and the General Counsel were represented by counsel, and the Union by a business
representative. Each of the parties was afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence pertinent to the
issues. At the conclusion of the General Counsel's presentation, a motion by his
representative that the complaint be amended to conform to the proof as to names,
dates, and other formal matters was granted without objection. A similar motion
presented by the Respondent at the conclusion of the testimony, with respect to its
answer, was likewise granted. Oral argument was then heard, and a brief has been
submitted in the Respondent's behalf.
FINDINGS OF FACT
Upon the entire record in the case, and my observation of the witnesses, I make
the following findings of fact.
1. THE BUSINESS OF THE RESPONDENT
California Textile Mills, a California corporation, was organized and incorporated
on or about August 10, 1955; since incorporation, and at all material times, it has
maintained its principal office and place of business at Armona, California. There,
it has been continuously engaged in the manufacture of carpet yarns. In the course
and conduct of its business, throughout the period subjected to scrutiny in this case,
the Respondent has continuously caused large quantities of rayon staple fiber, used
by it in the manufacture of carpet yarn, to be purchased and transported in interstate
commerce from and through various States of the United States other than the State
of California. For its fiscal year which began on October 1, 1955, and ended on
September 30, 1956, its purchases of rayon staple fiber exceeded $500,000 in value.
The record establishes that all of the carpet yarn produced by the Respondent during
this period was sold and shipped to carpet manufacturers located within the State
of California.
In the light of the Respondent's factual admissions as noted, and upon the entire
record, I find it to be engaged in commerce and business activities which affect
commerce, within the meaning of the Act. And, on the basis of the available
evidence and in the light of the Board's established jurisdictional policy-see
Jonesboro Grain Drying Cooperative, 110 NLRB 481, and related cases-I find
further that the assertion of the Board's jurisdiction in this case is warranted and
necessary to effectuate the statutory objectives.
CALIFORNIA TEXTILE MILLS 1249
II. THE LABOR ORGANIZATION INVOLVED
In the light of the available evidence-despite the Respondent 's formal contention
to the contrary-I find the Bay Area Joint Board of Textile Workers of America,
AFL-CIO, to be an organization in which employees participate , which exists for the
purpose, in whole or in part , of dealing with employers in regard to grievances, labor
disputes , wages, rates of pay, hours of employment , or conditions of work. And I
find it, therefore , to be a labor organization within the meaning of Section 2 (5) of
the Act, as amended, which has admitted employees of the Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. Background
1. The organization of the firm
As previously noted, August 10, 1955, marks the Respondent's date of incorpora-
tion. Louis L. Touton, its president and general manager, and Paul J. Greene, its
vice president in charge of sales, are major stockholders. Lyman D. Griswold, the
Respondent's attorney, also functions as its secretary, and Charles H. Young serves
as its treasurer. After a preliminary period of study and preparation, the Respondent
leased a mill at Armona, California, and in February 1956, it began operations.
Although organized initially as a "pilot" enterprise to spin cotton, the Respondent
actually initiated its business as a processor of solution-dyed rayon viscose fiber, which
it spun into carpet yarn for a "rather large" West Coast market. Almost immediately
after its operations began, I find, it acquired two customers, Peirce and Company of
Los Angeles, and the National Carpeting Division of National Automotive Fibers,
at Oakland, California. Each of these firms appears to have presented the Respond-
ent with a standing order of substantial size-that of the Oakland firm, for example,
called for 150,000 pounds of yarn per month.'
At no time since it initiated production, allegedly, has the firm been able to ship
either of its customers the full amount of their initial monthly orders. And through-
out the firm's first year, in fact, its total capacity and shipments appear to have been
allocated, as between its customers, on a 50-50 basis Toulon, at least, so testified
The rayon viscose fiber received by the Respondent has been routinely processed very
quickly, after receipt, and-prior to this year-the firm appears to have shipped its
finished yarn regularly, almost immediately. The production figures supplied by
the Respondent, which have not been challenged, establish that its total output rose
from 125,000 pounds in June 1956 to 185,000 pounds in December of that year.2
Shortly after productive operations began, I find, the Respondent's original plant
superintendent was replaced by Greer Armstrong; Armstrong, with 30 years of
experience in the North Carolina textile industry, some of it supervisory, had
previously been in the Respondent's employ as a rank-and-file worker.
Since it initiated production, apparently, the firm has operated on a three-shift
basis. Plant Superintendent Armstrong-insofar as the record shows-has personally
supervised the 6 a. m. to 2 p. in. shift, which is considered the first shift of the day
at the Respondent's mill. At all times material in this case the second, 2 p. in. to
10 p. m , shift has been under the supervision of Shift Foreman Eugene Wheat; his
testimony indicates that he has, at various times, had 14 to 21 employees subject to
his direction .3 And for most of the Respondent's first year of operation, the third
i The credible testimony of President Touton establishes that the Respondent's busi-
ness--as originally conceived-represented a "novel type of industry" in California's
Central Valley Employees with expeiience in textile mill operation were not readily
available, and most of those hired had to he trained for the work. Many of the trainees
appear to have disliked the work, and employee turnover has been "appreciable" since
the fii m's operation began
a The Respondent's records indicate a significant decline in production only during July
1956. This was explained as a "customary" seasonal decline; no attempt was made,
however, to reconcile this reference to a summer "dip" in production with President
Touton's earlier testimony that the Respondent was never able to meet its outstanding
monthly orders during the first year of the mill's operation.
3 Wheat's uncontradicted testimony establishes that he had previously been promoted
to foremanship by the Respondent in June 1956, approximately, and that-after a briet
period of service on the third shift-he had become the shift foreman on the second shift
at the mill in December 1956, about 8 months prior to his appearance as a witness
483142-59-vol. 120-80
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shift, which began at 10 p. in., was under the supervision of Shift Foreman Walter
Jones. Shortly after the first of this year, however, Harley Stephenson replaced
Jones as the shift foreman ; Stephenson , I find , was in charge of the 10 p. in . to 6 a. in.
.shift, therefore, throughout the period with which this case is most immediately
concerned.
2. The business history of the firm
Early in the autumn of 1956, at a time not fixed with particularity in the present
-record, one of the Respondent's customers, National Carpeting, substantially
curtailed or canceled its "permanent" order for the monthly shipment of a fixed
quantity of carpet yarn, when it became "perfectly obvious" that the Respondent
would be unable to meet it. The testimony of President Touton establishes,
however, that the Respondent's mill was still required to operate at capacity, to
meet new "specific orders" from National Carpeting, and previously unfilled orders.
Early in January 1957 at the annual trade show held in Chicago, Illinois, by the
furniture and home furnishings industry, the news appears to have been bruited,
generally, that carpets made of rayon viscose had not worn well in regular use,
and that sales of carpets made of this material had registered a decline, nationally.
And according to President Touton's testimony, which I credit in this connection,
carpet manufacturers, generally, thereupon began to liquidate their stocks of fin-
ished rayon viscose carpets, and concurrently began to restrict their purchases of
rayon viscose carpet yarn. Each of the Respondent's two customers, specifically,
notified the firm, I find, that they did not desire immediate shipment with respect
to the yarn produced by the firm on the basis of their current orders; the Respondent
-was advised, instead, that it ought to curtail its rate of production and refrain from
the shipment of yarn already produced, pending the receipt of further instructions.
On the basis of this development, allegedly, the Respondent's rate of production-
at its peak in January 1957, when the firm produced 207,000 pounds-fell to 93,000
pounds within 6 months. According to Touton, the firm began to take orders for
"finer yarns" which would keep its machinery busy, but would involve a lower
volume of production and require less personnel. I so find. Very few orders of
this sort appear to have been received, however. The president's testimony estab-
lishes finally-without contradiction-that National Carpeting and Peirce, early in
March, cut off their requests for shipment completely, and that the yarn produced
in that month for each firm was not completely shipped until June of this year.
The testimony of the Respondent's president in this connection-which I credit
:in the absence of contradiction-establishes, in short, that:
. . from the first of January when our representative got back from the show,
we started gearing for lower production, which we saw coming, and our fears
were confirmed in early February by periodic visits we made to the plants of
our customers, who kept telling us that they were going to have to cut back.
And in early March we had driven them, by repeated phone calls, requesting
additional instructions as to what, of their present outstanding orders, we
should put into processing in the mill, with a view toward shipping them within
a reasonable length of time. We arrived at a point where they simply told
us that they couldn't give us any more business , that we would have to wait.
So we went ahead and in February and March we made this lot of yarn up
for stock, literally, and since that time our business has fallen off gradually,
it has not picked up, our production figures . . . they are continually
decreasing.
The records of the Respondent-cited without challenge-actually establish its
1957 monthly production figures as follows:
Month Production Comments
January --------- 207, 000 All coarse yam
Febi uary-------- 130 000 About 10% finer yarns
March-------_--- 150, 000 All coa-se yarn, 40,000 pounds pioduced and held foi later shipment.
April----------- - 150,000 About 16,000 pounds produced foi s ipnient at a later date
May ------------ 109,000
June ------------- 124,000
July ------------- 93, 000
President Touton, supplying these figures, characterized the future as uncertain. The
record warrants an inference that the firm's declining production in July coincided
CALIFORNIA TEXTILE MILLS 1251
with the elimination of the Respondent 's third-shift operation . There is testimony
that the change was effected about 6 weeks before the hearing in this case, and
the personnel records of the firm reflect a substantial number of employee termina-
tions on the 18th of July, specifically.
B. The union meeting
No labor organization appears to have made a serious effort to promote the
unionization of the employees at the Respondent 's mill during its first year of opera-
tion, approximately .4 Sometime in December 1956 a Mrs. Clark appears to have
suggested to Employee Linda Rose Vierra that the plant ought to be unionized.
And at Christmas time Mrs. Vierra appears to have been queried by her brother-
in-law as to whether the Respondent 's employees were, in fact , organized. Upon
receiving a negative reply, he apparently suggested to Vierra that the mill employees
might find unionization worth while . And shortly thereafter Vierra was visited, I
find, by union representatives.
The nature and extent of their activity within the employee group , thereafter, is
not detailed in the record ; it is clear , however, that their employee contacts in
January 1957 included , inter alia, Dr. E. Ray Birdsall, one of the complainants in
this case. Early in February , Birdsall agreed to execute a union membership appli-
cation; subsequently , I find, he was designated as the unpaid employee "representa-
tive" of the organization at the Respondent 's plant. Birdsall was then employed as
a slubber hand on the Respondent's third shift . Nominally, I find, he was responsible
for the 'operation of the Respondent 's "small" slubber. Upon occasion , however,
he appears to have been required to assist the other slubber hands in the maintenance
and operation of the firm 's two "large" Blubbers. These machines are utilized
to apply the initial twist to the Respondent 's picked and carded viscose fiber, and
to wind the twisted fiber or "roving " on spools for the next twisting operation. After
his designation Birdsall became quite active in the Union 's behalf; his testimony
and that of others establishes , and I find, that he discussed the Union , generally,
at the plant , that he solicited information from several employees at the Respondent's
mill during their free time, as to their home addresses , and that he visited these
employees subsequently , at home, to solicit union membership applications. The
available evidence reveals, also , that-on one occasion at least-he left his post to
visit the "lunch room" utilized by the third-shift women employees during their
half-hour, midshift lunch period. His activity on this occasion , however, appears
to have been limited to the distribution of union membership applications. I so
find.5 In the latter part of February , a meeting of the union adherents was
scheduled . Birdsall having previously proffered his Lemoore office as a union
meeting place, the employees were advised to gather there on the afternoon of
Sunday, February 24, 1957, at 2 to 2:30 p. in . approximately . About 8 or 10
employees accepted the invitation , I find, and attended . Mrs. Vierra , I find, was
one of the employees in attendance . Also present were Fred Schindler , Joe Capote,
William Duncan, and Morris Gadberry.6
Information with respect to the scheduled meeting apparently became available
to Shift Foreman Wheat sometime early in the afternoon of the 24th ; his testimony,
which I find credible in the main , establishes that he learned of the projected union
gathering from employee Ralph Hubbard , while at work on the early shift that
day. At about 2 p. m., approximately on the indicated date, after his Sunday shift
4 The testimony of President Touton does establish , in the absence of contradiction, that
a representative of the Union herein , Abe Pincus , had queried him with respect to the
possibility of subsequent recognition , during the month of October 1955. before the Re-
spondent initiated production . Thereafter he and Vice President Greene appear to have
received at least two similar inquiries , one from the Operating Engineers and the other
from the Chemical Workers , nothing in the available evidence , however , indicates any
previous attempt by these organizations to enlist the mill employees as members.
5 Birdsall's testimony establishes that he is qualified and licensed to practice as a chiro-
practor The record establishes , also , that, throughout the peiiod of his mill employ-
ment, he maintained an office in the nearby community of Lemoore , which he utilized-
with the knowledge and acquiescence of his superiors-in the practice of his profession
His office appointments , I find , were routinely set between 9 a in and 5 p in at a time
which he considered least likely to interfere with his rest , after a night at the Respondent's
mill
e Birdsall 's testimony , which I credit in this connection, establishes that he had an-
nounced the scheduled meeting , and distributed cards with his name and address to "8
or 10" people during the women ' s "lunch period " on the third shift , on the 21st 22nd or
33rd of the month
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ended, Wheat visited Shift Foreman Harley Stephenson at his home. His testimony
establishes that the "information" available with respect to the meeting was
discussed, and that Stephenson accepted Wheat's invitation to visit Lemoore to
"see" if the scheduled meeting was, in fact, being held. Wheat, as a witness, de-
scribed his actions as motivated by his "interest" in anything that might affect his
work at the Respondent's mill.7 While en route to Lemoore-5 miles west of
Armona, the mill location-Wheat and Stephenson were observed, I find, by 2 out
of 4 employees of the Respondent on their way to the union meeting. Subsequently,
the men appear to have been advised by employee Kenneth Davis that the shift
foremen were looking for the Union's scheduled meeting place. The available
evidence establishes that the employees felt it advisable as a result, to park their
automobile, after their arrival in Lemoore, at some distance from Birdsall's office,
and to make their way there, on foot, by an inconspicuous route.
Upon their subsequent arrival in Lemoore, I find, Wheat and Stephenson proceeded
to the local union hall. They found it closed, however. The men immediately
repaired to the local grocery of Willie Cossey, a second-shift mill employee. There
Wheat, I find-on the basis of the grocer's testimony-asked Cossey, his subordinate,
if he knew anything about the union meeting. Stephenson, also, appears to have
supplemented Wheat's inquiry with a question as to where the meeting was being
held. I so find. The grocer, however, professed ignorance, despite Stephenson's
insistence that they had heard there would be a meeting. Wheat then requested
Cossey, if he- heard about the meeting, to "let" him (Wheat) know. With this, I
find, the shift foremen left the grocery and returned home .8 Nothing in the record
suggests, reliably, that their search for the site of the union meeting was successful,
or that the employees in attendance were ever subjected to actual surveillance.
Wheat, as a witness, did admit passing Dr. Birdsall's office once, on his trip through
Lemoore, but insisted that he had seen no mill employees in its vicinity. There is
testimony, also, by Joe Capote, one of the General Counsel's witnesses, who had
attended the meeting, that Stephenson's manner toward him was more reserved than
usual that night on the third shift; this change in the shift foreman's behavior, how-
ever-if it occurred-cannot, in my opinion, be treated as reliable, probative, or
substantial evidence that he knew of Capote's interest in unionization.9 The record
is largely silent with respect to the precise nature of the meeting in Birdsall's office,
and its immediate aftermath. His testimony, which I credit in this connecton, estab-
lishes only that three union representatives were present, that the employees were
informed at the meeting of the abortive attempt by Wheat and Stephenson to deter-
mine its location, and that the gathering adjourned, finally, with an understanding
that the next meeting of the employees under union sponsorship would take place
in the "latter part" of the following month.
Wheat's testimony establishes that he learned the location of the union meeting
on the following day, at the mill, sometime after 2 p. in. As a witness, however,
he did not identify the source of his information, and pleaded his inability to recall
anyone to whom he had transmitted it. In this connection, the shift foreman testified,
for example, that he did not "think" he had discussed the location of the union
meeting with anyone that day. When queried by the General Counsel's represent-
ative as to whether he had mentioned its location to Stephenson or Plant Superin-
tendent Armstrong, Wheat indicated that he did not "remember" discussing the
information he had received with the shift foreman, and that he did not "believe"
he had mentioned it to his immediate superior. His testimony that he had not
mentioned it to President Toulon was positive. But when queried as to whether
Y The Respondent-despite a concession. for the record, that Wheat and Stephenson were,
in fact, responsible foi the operation of the mill on their iespective shifts-argues that the
available evidence will not sustain a contention that these men were "supervisors" in a
statutory sense This contention will be analyzed elsewhere in this Report
8 Cossey's testimony establishes that he had, in fact, beard of the projected union
meeting the previous day, and that another employee had informed him, on the morning
of the 24th, with respect to Its location.
9 Stephenson's testimony, generally, in this connection, deserves characterization as
sharply in conflict with that of his fellow shift foreman The record reveals his insistence,
as a witness, that Wheat's invitation with respect to the Lemoore trip was proffered with-
out explanation; that he [Stephenson] merely accompanied Wheat tor the sake of the
ride; that he did not participate in the interrogation of Cossey with respect to the loca-
tion of the union meeting; and that Wheat proffered no explanation as to the purpose
of the trip until their return home. This testimony impressed me as disingenuous, and
certainly less than candid Wheat's recital, on the other hand, except in one respect,
struck nie as worthy of credit. As supplemented by Cossey's testimony , It forms the basis
of my factual findings with respect to the incident under consideration.
CALIFORNIA TEXTILE MILLS 1253
he had mentioned it to Vice President Greene he again observed that he did not
"believe" so, and that he did not "remember" mentioning it. In response to a final
inquiry as to whether he "might have talked " to any one of his superiors about the
location of the union meeting on the previous day, Wheat conceded that such a
conversation "may have occurred" but continued to insist that he did not "remember"
discussing the matter with anyone at the time . The shift foreman testified, ulti-
mately, that the first occasion on which he mentioned the site of the union meeting
on the 24th "must have been" at least 2 or 3 days after he acquired information as
to its location; he indicates a "belief" that he mentioned it to the plant superintendent
at that time . This testimony, if credited, would establish that Wheat first mentioned
Dr. Birdsall's office to the plant superintendent , as the location of the union meeting,
on the 27th or 28th of the month. The credibility of the shift foreman 's recital in
this connection will be discussed elsewhere in this report.
C. The termination of Dr. Birdsall
When his interest in the Union became active, as previously noted, Dr. Birdsall
was employed as a Blubber tender on the mill's third shift, with a $1.15 per hour
rate of pay. The records of the Respondent establish his hire on July 24, 1956, at
$1.00 per hour. He received a wage increase on September 5, 1956, when his pay
was raised to $1.10 per hour. And his last increase, to the rate noted, became effec-
tive on December 14, 1956, after a direct request which he addressed to the plant
superintendent. The slubber tender's testimony establishes that his only previous
experience in a textile mill had involved service as a weaver in Portland, Oregon,
approximately 13 years earlier; he had never been employed previously, I find, as a
slubber operator. Birdsall's testimony indicates, nevertheless, that Plant Super-
intendent Armstrong had requested him to work overtime and complimented him
with respect to his work, on at least one occasion, and that Shift Foreman Wheat
may have done so also; his recitals in this respect have not been contradicted.
On the evening of February 24 after the meeting, I find, Dr. Birdsall reported for
work at his usual hour. While at work, however, he suffered an attack of indigestion
and requested Shift Foreman Stephenson to excuse him. He was requested to "stick
out" the shift, if he could, and the record establishes that he did so after a short
period of rest. When he reported for work at 10 o'clock the following night,
Stephenson informed him that Plant Superintendent Armstrong wished to see him.
Dr. Birdsall, I find, proceeded at once to Armstrong's office. His testimony with
respect to his conversation with the plant superintendent, which I credit, reads as
follows:
He handed me the two checks, the check that would have been the following
check and the closing check, and said that my services were no longer needed,
"We are going to close down, we are going to shut that machine down you have
been running, because it can 't handle the stuff we are running throygh it at the
present time."..'. I said I thought that was pretty funny, for me to help to
train a new man and then be laid off. And then he said, "Well, we just don't
need you any more." And I said , "Thank you." And I walked out.
The plant superintendent 's testimony with respect to Dr . Birdsall's termination, sub-
sequently given, accords substantially with that of the dischargee; in sum , he testified
that Dr. Birdsall's employment had been "discontinued" because the firm did not have
the business with which to justify the operation of his machine. Since his termina-
tion, as indicated, Birdsall has performed no services for the respondent employer.
D. The Interr&gation of Kapics ,
The testimony of President Touton , if credited , would establish that he was first
apprised on the 28th of February of the Union 's attempt to organize the mill. On
that date , his testimony indicates, while in Oakland seeking an order , he was informed
by a National Carpeting Company representative that a meeting of the mill employees
had been held under union sponsorship on the Sunday preceding . Touton testified
that he placed a telephone call to the mill , almost immediately, and that he asked
Vice President Greene, who responded, whether he (Greene) was aware of the
Union 's activity . Greene is said to have replied in the negative , and passing the
inquiry to Plant Superintendent Armstrong , also in the room , he (Greene ) is said to
have elicited a similar negative response.lo
10 The testimony of President Touton in this connection , herein summarized , has not
been contradicted . The General Counsel's representative , however, has challenged it, in-
ferentially, as inherently incredible . Its probative worth will be assessed , elsewhere in
this Report.
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the following day, Touton was at the mill. In the afternoon, I find, he
accosted an employee, Andrew J. Kapics, and interrogated him with respect to the
union activity of the employees. Kapics, a San Quentin parolee, was the only mill
employee President Touton had personally hired. The record in this connection,
which I propose to analyze elsewhere in this Report, suggests that his initial employ-
ment had been motivated by the firm's need for experienced help; Kapics, while a
prisoner, had spent 14 months as a slubber hand in,the San Quentin textile mill, the
only other textile mill in the State. The available evidence with respect to the sub-
stance of the conversation which ensued is strongly in conflict. Touton's version of
the incident reads as follows:
I came up to him and asked him how he was coming with his work. The second
question I asked him was, I told him that I had been to Sari Francisco the day
previously-the day previous, I told him, and I had been informed that there
had been a union meeting for the purpose of organizing the employees at our
plant. The third question I asked him was: "Were an appreciable number of
the employees interested in organizing our plant?" The fourth question I asked
him, was he interested in organizing our plant. And the last statement I made
was that it is his right as a citizen of the United States to hold any union affilia-
tion that he wanted to and that by no means or otherwise would I discourage him
either way. . . As I recall, he told me, to Question No. 1, that there was-
Question No. 2-that there was a union meeting held the previous Saturday-
the previous Sunday, and he confirmed that. The answer to the question that I
asked as to whether an appreciable number of the employees were interested, he
said "Yes." As to the question whether he was interested, he said "Yes," he
was. I asked one other question, "Do you think it would be a good thing for
the plant?" And he said, "Yes," he thought it would be a good thing for
the plant.
Kapics, as a witness, dated the conversation in question as about a week or 10 days
prior to his discharge on March 4, 1956, to be noted elsewhere in this Report. This
would place it on the 25th of February, of earlier. His testimony, if credited, would
indicate that the conversation occurred fairly late in the evening, on the second shift.
With respect to its content, Kapics testified, in direct examination, as follows:
He asked me how I was doing first, how I was doing, and I told him all right, and
`; he`told me to do him a personal favor, he said, "I have been pretty good to you,"
he said, "I understand they are trying to organize a union here and." he says, "I
would like you to keep your ears open and let me know," he says, "Because they
are not going to run here," he says. "They have tried it up north and tried it all
over and," he says, "If I have to close down the plant, I am going to do it," he
says, "And you can look around and see, yourself." And he says, "I don't hire
Negroes," he says, "And you might think it's Unamerican. Nevertheless, that
is ther► ay TC^-eel." So I kind of gave him a lc:,'.: ;'= T didn't approve of his
conversation, and he says, "Don't tell me you approve of lthe union, too?" and
I says, "Yes, I-do." And that was the end of it.
In cross-examination, Kapics conceded that Touton had initiated the conversation
with a reference to the fact that he had been told by a customer, while in the San
Francisco Bay area, that union activity had been initiated at the mill; he also con-
ceded Touton's comment that he (Touton) was seeking information as a favor.
Kapics admitted that Touton did not threaten him, but stated that he did not like the
idea of being asked to repay a personal favor by providing the requested information.
Under questioning, then, he recalled Touton's inquiry as to how he felt about the
Union, and his own reply that he thought it was a good idea. And, finally, he con-
ceded a comment by the Respondent's president that he was entitled to use his own
judgment in the matter, and his own observation, in reply, that he had once been in
trouble because he hadn't used his own judgment and that this time he intended to
do so.
In the light of the available evidence, and my observation of the witnesses, I
credit Touton's testimony in this connection The Respondent made no attempt,
at the hearing, to question the credibility of Kapics on the basis of his status as a
parolee. Nothing in the record, indeed, even suggests the nature of the crime for
which he served a prison term. No solid justification can be said to exist, then.
for a challenge to his credibility on the basis of his criminal conviction. I am
convinced, however, that Touton's version of the conversation ought to be accepted
as the more accurate The testimony of Kapics depicts the r o,pondent's president,
inferentially, as greatly disturbed with respect to the Union's advent. This Agency
is asked to conclude, in fact, that he was sufficiently disturbed to threaten the
closure of the plant, despite the extent of his antecedent investment to establish
CALIFORNIA TEXTILE MILLS 1255
it.as a viable enterprise. It is also asked to infer and find that he was sufficiently-
exercised to reveal anti-Negro prejudices, in a context which did not require
comment on the subject. President Touton did not impress me as an individual
whose composure could be easily disturbed. And the testimony of Kapics in cross--
examination reveals an admission that, despite the strong reaction attributed to,
him, the Respondent's president made it "very plain" that he didn't care to challenge-
the interest of the parolee in unionization. Touton's previous employment history
indicates that he has had some experience in the operation of a unionized plant.
And no evidence has been adduced to warrant a characterization of his earlier union
contacts as other than amiable. Without any desire or intent to attribute mendacity
to Kapics, therefore, I have concluded that "rationalization apparently colored
memory with afterthought" in connection with his testimony. President Touton's,
therefore, will be accepted. Its evidentiary significance as an indication of a
possible unfair labor practice will, accordingly, be discussed elsewhere in this-
Report.
E. The Union's letter
On or about March 1, 1956, the Union dispatched a letter to the Respondent
stating that the mill employees had designated it as their collective-bargaining.
agency. Mrs. Baltrun, in the Union's behalf, requested the Respondent to indicate
a time when it would be convenient to meet. In reply, the Union received a letter
dated March 7, 1957, signed by the Respondent's vice president. It read as follows:-
Your letter of March 1, 1957, was received and the contents noted. After
careful investigation of our employees, we find that they do not desire your
union as their bargaining agent.
The Union, at the time, apparently represented 30 of the Respondent's employees.-
No allegation has been presented in this case, however, that it did, in fact, represent
a majority of the mill workers. Since the indicated exchange, the Union has made
no attempt to communicate directly with the respondent employer.
F. The termination of Kapics
In the meantime, however, as of March 4, 1957, the employment of Kapics had
been terminated. Since his discharge is alleged to have involved an unfair labor
practice, its attendant circumstances now call for consideration.
The employment of Kapics by the Respondent dated from December 14, 1956.
The record establishes that he had been placed on the Respondent's payroll by
President Touton personally. It is clear from Touton's testimony, and I find, that-
the Respondent was anxious, at the outset of its operations, to secure the service
of experienced textile workers; that the San Quentin textile mill was then the only
functioning textile mill in the State; that Kapics, then a San Quentin prisoner, had.
applied for work by letter-approximately 6 months prior to his date of hire-on
the basis of his experience as a slubber hand for 14 months in the prison mill; and
that Touton's willingness to employ him on the basis of his prison experience had
contributed, directly, to his parole.
Kapics, however, appears to have been employed for 1 night, only, as a slubber
operator. He was told-either by the firm's president or its plant superintendent-
that he was not considered an efficient slubber operator. And he was assigned,
forthwith, to the drawing frames. While thus employed, he received a wage-
increase on January 15, 1957; his rate was raised, I find, from $1 to $1.10 per hour.
In mid-February, approximately, he was transferred from the draw frames to the
post of a carding machine operator. (His testimony establishes, without contra-
diction, that he was replaced at the draw frames by a woman employee. I so find.)
Sometime during this period, his work performance, I find, was complimented by
President Touton. Shortly before February 26, 1957, Kapics appears to have
been solicited by Dr. Birdsall, in the Union's behalf. His testimony establishes that
he signed a union card. The record establishes, despite some variant testimony by
Kapics, that he worked his last full shift on Sunday, March 3, 1957. His testimony
with respect to his termination on the following day reads as follows:
I just started to work, and five minutes after I started, why . . . Five
minutes after I started Wheat came over and told me, he says, "Mr. Armstrong
wants to see you in his office." . And I went in the office and Mr.
Armstrong said, "Things have slowed down. We have appreciated your work
while you was here, and in the future, if we can help you in some way, why,
notify us " And that was it. . He told me if I wanted my check now I
could go down to Mr. Touton's office, the general office. And I says yes, I
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would go down and get it. So I went down to the office and Mr. Touton was
there, and when I got my check he says, "Come in here," and I did. He says,
"I would like to see you a minute." So I went in there and he says, "What
happened?" I says "They let me go." He says, "Well, gee, I made that very
specific, if they laid a couple of guys off, to be sure that they didn't lay you
off." And that cut it short there. He says, "If I can help you in the future
be free to ask me," he says "I will help you." .. .
According to Kapics, the card men had a lot of work at the time of his layoff.
His conclusion in this regard appears to be based upon the fact-not disputed in the
present record-that some of the pickers, whose function preceded that of the card
men in the productive process, were then working overtime to put out rolls or laps
of rayon viscose fiber for processing. The significance of this observation, however,
will be evaluated elsewhere in this Report.
The testimony of Plant Superintendent Armstrong with respect to the termina-
tion of Kapics is substantially compatible with that noted. As a witness, briefly,
Armstrong indicated that he had tried Kapics on three different jobs but could
get nothing out of him, and that he finally "cut" him off. Specifically Armstrong
testified that:
When he came there he claimed to be a slubber tender, and he couldn't run
slubbers at all. We moved him down to drawing, kept him a few days, and
he didn't make any showing there, didn't try to. The shift foreman was after
me every day about him . . . Mr. Wheat. And so I spoke to Mr. Touton
about the man and he says, "Let's try him somewhere else." I didn't want
to push the boy out. I told him I had gone about as far as I could with him,
I tried him two weeks, but anyway I taken him out and put him on cards and
he didn't try to do anything out there at all so when this cutoff come I just
cut him off.
Armstrong claims to have been aware of the status of Kapics as a parolee from the
date of his hire, but insists that except for Touton's interest, he probably would
have taken "action" with respect to Kapics in the normal course of events.
In the light of the available evidence, a substantial question is presented for de-
termination as to the plant superintendent's actual motivation for the layoff of this
employee. A determination with respect to his motive or intent in this connection
will be found, therefore, elsewhere in this Report.
G. The termination of Schindler
Fred Schindler entered the Respondent's employ on February 12, 1957, as a
"learner" at $1 per hour. His exact assignment does not appear in the record.
On March 4, 1957, his services were terminated. Schindler did not testify. There
is an indication in the record that he was not available to the General Counsel's
representative when this case was heard. His employment history is derived, there-
fore, from the Respondent's personnel records. The only evidence available with
respect to his termination is to be found in the testimony of Plant Superintendent
Armstrong. It indicates that Schindler had been assigned to a job with two
other men, as a learner. According to the plant superintendent, the Respondent
"just couldn't keep him" when the time for a "cutoff" arrived.
No additional details have been supplied as to the nature of Schindler's job;
his demonstrated ability as a learner, if any; the conversation, if any, which preceded
his termination; or the Respondent's precise reason for the determination to dispense
with his services. In the absence of evidence reasonably calculated to modify or
amplify the plant superintendent's testimony, I am constrained-despite its skeletal
quality-to accept it as correct.
The General Counsel's contention, on the basis of this record, that Schindler's
termination nevertheless involved an unfair labor practice, will be analyzed else-
where in this Report.
H. The termination of Vierra
The Respondent's records establish that Linda Rose Vierra had initially been
hired on September 5, 1956, as a winder tender on the firm's third shift. Vierra's
testimony, which I credit in this connection, establishes that she had had no previous
experience as a textile mill employee. Her original $1 per hour rate was increased
to $1.10 per hour, I find, on the 29th of October. As of March 6, 1957, her
employment was terminated under circumstances now to be noted.
As a winder tender, Vierra was responsible for the operation of a machine which
wound finished yarn on a cone, preparatory to shipment. Sometime before Christ-
mas, 1956, a temporary shortage of finished yarn appears to have developed, and
CALIFORNIA TEXTILE MILLS 1257
Shift Foreman Jones-then in charge of the third shift-assigned Vierra, in the
middle of the shift, to tend some drawing frames." Very shortly after her assign-
ment to the frames, Vierra noted symptoms of dizziness and nausea. Ultimately, I
find, she became quite ill, and had to repair to the Respondent's restroom; there she
was able to retch and relieve her nausea. Upon her return, she informed Jones that
the sight of the drawing frames in operation, at close quarters, made her dizzy. He
advised her to join the other winder tenders awaiting the arrival of additional yarn,
I find, since it would be dangerous for her to return to the frames. As a witness,
Vierra attributed her nausea to the fact that the assignment had required her to tend
long rows of closely set metal arms or flyers, moving rapidly up and down, like
hammers, with a reciprocal action. Each frame, apparently, included such a row
of metal arms, approximately 4 feet from the floor and 20 to 25 feet in length.
Some time later, however, Jones, again requested Vierra to, tend the frames. Her
testimony with respect to the reply she gave, which I credit, reads as follows:
I says I hated to go back there because I knew I would get sick, but I
would like to by it again because I would like to do that kind of job back
there . . .
Jones observed that there was insufficient yarn to require her immediate service as
a winder tender, and that the firm would like to "teach" her to tend the drawing
frames because of her height. Vierra accepted the assignment. However, she again
became ill. And, in a subsequent conversation, Shift Foreman Jones informed her,
I find, that he had mentioned her illness on the occasion of the first assignment to
Plant Superintendent Armstrong; he advised her, at the time, that she had better
not work on the drawing frames any more because it would be dangerous to become
ill on such an assignment, since dizziness might cause her to fall into the machine.
Vierra, as previously noted, was one of the first employees visited by a union
representative at the outset of its organizational effort. Thereafter, on several occa-
sions, she appears to have discussed the Union with her fellow employees, during
the informal "lunch period" which the women employees on the third shift enjoyed.
As a witness, Vierra insisted that she did this very little, but conceded that she had
spoken to her fellow employees about the Union on the occasion of Dr. Birdsall's
visit to the lunchroom to leave his office address, prior to the February 24 union
meeting. Her testimony establishes that she has also spoken to some of the employees
at their homes and on the telephone about the Union
At 11 o'clock on the night of Dr. Birdsall's discharge-previously noted-Shift
Foreman Stephenson I find, accosted Vierra at her winder, and complimented her
about the "nice job" she was doing. Vierra's testimony indicates that this was the
third time Stephenson had complimented her; on a previous occasion, allegedly, the
shift foreman had told her that she was one of the best winders on the third shift
and "put out" very good splices.
As a witness, Vierra also attributed several anti-union statements to the shift
foreman. Her testimony in this connection, however, was hedged about with un-
certainty, and cannot be characterized, in my opinion, as reliable, probative or sub-
stantial. She testified, for example, that Stephenson, on one occasion, told employee
Margaret Hensley, in the presence of 8 or 9 women employees during the third shift
"lunch" period, that everyone who had gone to the union meeting would be dis-
charged. At the outset of her testimony she attributed this statement to the shift
foreman on the night of Dr. Birdsall's discharge, but then conceded that she could
not remember if it had been made that night. At one point, in cross-examination,
she fixed the occasion as the night of the day on which the union meeting was held.
In response to further questioning, she then attributed the observation, in substance,
to Mrs. Stephenson, the shift foreman's wife and a third-shift employee. Finally,
she conceded her inability to remember whether Mr. Stephenson was within hearing
distance at the time.
Subsequently, Vierra testified to a conversation she had had with Stephenson at
the winders, 2 days -prior to Dr. Birdsall's discharge. At the outset of her recital she
recalled the occasion only as one of the several occasions on which Stephenson had
complimented her. Only after repeated questions, in direct examination, did she
recall, additionally, a comment by Stephenson that if "anyone" talked about the
"union" or attended meetings they would be discharged. In the light of the available
evidence it is clear beyond a doubt that Stephenson did become aware of the Union's
initial meeting 1 day prior to Dr. Birdsall's dismissal; despite the existence of some
"Throughout the record, drawing frames were frequently identified as fly frames-
Improperly designated as "flat frames" upon occasion in the transcript At the Re-
spondent's mill the two designations appear to have been interchangeable.
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
justification, however, for suspicion that the mill management knew about the interest
of the employees in unionization , generally, prior to February 24, 1957, nothing
concrete in the record will support a definitive inference that Stephenson was aware
of any union activity within the employee group as early as 2 days prior to Bird-
sall's termination.
Vierra's testimony also includes an allegation that Stephenson told her, at one
time, about a wire connection which allegedly ran from the ladies' restroom to his
home, and said that if any employees were heard talking about the Union they
would be discharged. In cross-examination, however, she conceded that this remark
could have been made by Mrs. Stephenson, instead, during a lunch period con-
versation of undetermined date.
In this state of the record, Vierra's testimony with respect to the antiunion•state-
ments she attributed to Shift Foreman Stephenson cannot be accepted, in my opinion.
As witnesses in denial, it is true, Shift Foreman Stephenson and his wife did not im-
press me as candid. If the record could be said to provide a positive recital by Vierra,
circumstantially detailed enough to warrant its acceptance as reliable, I would reject
the contrary testimony of the shift foreman and Mrs. Stephenson as unpersuasive.
The testimony given by the winder tender with respect to each incident, however,
carries its own death wound. And the testimony of Joe Capote, a third shift card
room employee and union adherent, establishes that he, at least, was never warned
about a display of interest in the organization, or the possibility of discharge. I find
myself constrained, therefore, to conclude that the General Counsel's contentions are
"not proven" in this connection.
At 10 p m. on March 5, 1957, Vierra reported as usual for her third-shift assign-
ment . As the shift ended, early the following day, Stephenson told her that Plant
Superintendent Armstrong wished to see her in his office. And at about 5:30 in the
morning, I find, Vierra reported to the plant superintendent. Her testimony with
respect to the conversation that ensued, and its aftermath, reads, in part, as follows:
Mr. Armstrong told me that he wanted me to work back on the frames and I
told Mr. Armstrong, "You know I get sick back there, and I have tried a couple
of times." And he said, "I am sorry. If you are not able to work back there,
I will have to lay you off." And I said, "Well, Mr. Armstrong, I will come back
and try it again for the third time." . . and that evening [March 6, 1957] I
came back to work at 10 on that shift.
Vierra's testimony establishes that she started work at the frames and began to feel
nauseated at about 11 o'clock; that her feelings of nausea became acute by 1 o'clock
and that she had to leave her post to retch; but that she was ultimately able to join
the'other "girls" during their lunch hour. Her additional testimony, which I credit in
this connection, reads as follows:
Mr. Stephenson come up and asked how I was, and I told him that I was feeling
a little better, but I didn't know if I should try to go down and work on the frames
again. And he says that was up to me, the way I felt. So when the girls all
went downstairs to work I decided maybe I had better try it, but as soon as I
went downstairs and saw the machines working, it seems like that was coming
back on me so I asked Mr. Stephenson, I went up to Mr. Stephenson and asked,
that I thought the best thing to do was to go home and go to bed. And he says
that was up to me. So I asked Mr. Stephenson if he thought Mr. Armstrong
would call me back to work. And he says, "Yes, maybe in two or three weeks,"
but I could call or see him. So at the end of the week I called to find out if I
could go and pick up my last week's check, and he says, "Yes," he says. .
And Mr. Armstrong says, "I might not be here but Mr. Wheat will give them to
you." So I went and picked them up. When I noticed that Mr. Wheat had
given me two checks, then I knew I was laid off, "I guess this is it?" and he says,
"Yes, I guess it is." And then I asked Mr. Wheat if he thought Mr. Armstrong
would put me back to work and he said, "Well, that is up to him."
Vierra's testimony establishes that Shift Foreman Stephenson' s initial explanation of
her assignment on March 6, 1957, was that the mill was short of yarn for the winders,
and that he thought he could "try" her at the frames. At the frames, however,
Stephenson-in Vierra's presence-told two of the regular frame tenders, I find, that
there would be no work for them that evening, and that they were free to go home
and return the next day. Vierra was then assigned to the frames. Another frame
tender, I find, asked Stephenson, at the time, why the Respondent had laid off two
girls and assigned Vierra as a frame tender, saying that she was not needed at the
frames since there was not enough yarn to work with. Stephenson replied, however,
that Plant Superintendent Armstrong had told him to give Vierra the assignment.
Vierra's testimony also establishes that the frame tender who queried Stephenson was
CALIFORNIA TEXTILE MILLS 1259
Eleanora-and an inspection of the Respondent's March payroll reveals Eleanora
Yeager to have been the only employee on the payroll at the time with a first name
identifiably similar. The winder tender, as a witness, named Loraine - and Mrs.
- Davis as the frame tenders temporarily laid off at the time of her reassignment.
The Respondent's March payroll reveals Lorene Duran as the only employee with a
first name similar to that Vierra cited; it also establishes that the Respondent em-
ployed both Eloise Davis and Louise Davis. Vierra identified the latter as a fellow
winder tender on the third shift, and identified the laid-off frame tender as her sister.
It was inferred and found that Lorene Duran and Eloise Davis were the frame tenders
cited by Vierra as temporarily laid off, and that Eleanor Yeager was the employee
who questioned Stephenson with respect to Vierra's reassignment, under the circum-
stances. Vierra's uncontradicted testimony, which I credit, establishes that the
Respondent then employed four winder tenders on the third shift, Margaret Hensley,
Louise Davis, Martha - and Vierra. The Respondent's payroll records estab-
lish Martha Bowers as the only Martha in its employ at the time; it is inferred and
found that Martha Bowers was the fourth winder tender.
The available evidence establishes that Margaret Hensley was the only winder
tender with greater seniority than Vierra in the Respondent's employ. The testi-
mony of the latter also establishes that an attempt was once made to assign Louise
Davis as a frame tender, but that she had been put back to work 'as a winder
tender because she "couldn't get along" at the frames and wouldn't stay there. In
the absence of evidence to the contrary, I so find.
The testimony of Plant Superintendent Armstrong with respect to Vierra's
termination is less detailed but reveals no substantial variance. It reads as
follows:
Well, Miz Vierra was a winder tender, and we wasn't producing anything out
on our [fly] frames. We had some fine counts out there, fine numbers, and
we had four winder operators and we decided that we would put Miz Vierra
over there on the [fly] frames on account of being a tall lady, you see. And
we kept her around there about two nights, all of them was standing around
not doing anything, so I made up, we made up our mind, I talked to Mr.
Stephenson in the morning, I told her what we would like for her to do, and
she said, "All right, I will go over there and try it, but it may make me sick "
She went over there that night when she came in there, and I haven't seen
her since.
Vierra's testimony with respect to her termination, previously noted, is circum-
stantially detailed, and does not strain credulity. And basically, despite her apparent
tension as a witness, and despite a volunteered concession, in cross-examination,
that she might be considered a nervous or excitable person, she impressed me as
sincere and worthy of credit. Upon the entire record, and my observations, I find
her recital with respect to the circumstances of her termination credible.
At a time approximately contemporaneous with Vierra's separation-about 7 or
10 days after February 24, Cossey was accosted at work by Shift Foreman Wheat;
he was asked if he had heard anything else about a union meeting. He replied
in the negative-although it is established that a second union meeting was, in
fact, scheduled for March 10. Wheat, I find, then asked Cossey, if he heard any-
thing, to let him (Wheat) know before Saturday night. Cossey said he would.
Conclusions
A. The discharges
1. The prima facie case
Section 8 (a) (3) of the National Labor Relations Act, as amended, classifies
"discrimination in regard to hire or tenure of employment or any term or condition
of employment to encourage or discourage membership in any labor organization"
as an employer unfair labor practice. And, in this connection, decisional doctrine
formulated and applied, in cases too numerous to cite clearly establishes that the
General Counsel may successfully demonstrate the existence of an unfair labor
practice, within the intent of the statute, only by the adduction of reliable, probative,
and substantial evidence, first, that any employees allegedly subjected to discrimina-
tion were known or believed to have been engaged in protected concerted activity,
and, secondly, that the discrimination allegedly practiced against them was, in fact,
motivated by the knowledge or belief of the employer involved with respect to their
participation in the designated activity. N. L. R. B. v. Kaiser Aluminum & Chem:-
cal Corp., 217 F. 2d 366 (C. A. 9); cf. N. L. R. B. v. Goodyear Footwear Corpora-
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion , 186 F. 2d 913 (C. A. 7); N. L. R. B. v. Montgomery Ward & Co., 157 F. 2d 486
(C. A. 8); Interlake Iron Corporation v. N. L. R. B., 131 F. 2d 129 (C. A. 7). These
requirements, obviously, must be satisfied, in this case.
In the light of the available evidence, I am satisfied that the General Counsel has,
in the main, met the burden of proof laid upon him by the statute.
The actual involvement, of Dr. Birdsall, Schindler, Kapics, and Vierra in protected
union activity, for example, is clearly established. Vierra, certainly, appears to
have been the Union's initial employee contact at the mill. And the record estab-
lishes that Dr. Birdsall became an active proponent of unionization very shortly
after the Union's advent. Kapics, at the outset, appears to have been involved in a
relatively passive way; his early sympathy with respect to the Union's organiza-
tional effort, however, appears to be conceded, and the record does establish his
attendance at the second union meeting. The available evidence with respect to
Schindler is scanty, but it must be considered sufficient, at least, to establish his
attendance at the February 24th union meeting in Dr. Birdsall's office.
While the evidence adduced to justify an inference with respect to the extent of
the knowledge attributable to the Respondent in this connection cannot be con-
sidered apodictic, it may properly be characterized as sufficient, in my opinion, to
establish the General Counsel's prima facie case, with one exception.
As to Kapics, the situation is patent. The credited testimony of President Toulon
establishes his interrogation of Kapics, and the parolee's admission, in the course
of the conversation, with respect to his personal interest in the Union's campaign.
And Dr. Birdsall's active interest in unionization can clearly be said to have come
to the Respondent's attention , as a matter of fact and as a matter of law, on the
afternoon of February 25, 1957, when Shift Foreman Wheat admittedly became
aware of his participation in the union campaign , as the host of its initial meeting
in the area on the previous day.12 Additionally, it may be noted that there is
evidence in the record to establish, in the absence of contradiction, that Dr. Birdsall
spoke in favor of the Union at the mill, before the union meeting, during the informal
"lunch period" of the third-shift women employees. On February 21, 1957, at
the latest-when he provided several of these employees, during the lunch period,
with information as to the location of his Lemoore office-the nature and extent
of his interest in unionization became, of course, patent. There is, concededly,
no "direct" evidence that this activity of Dr. Birdsall, in the Union's behalf came
to the attention of a management representative prior to February 25, but an
inference that it did is almost ineluctable. The available evidence establishes, for
example, that one of the employees routinely present in the "lunch room" during
the firm's informal luncheon period, Margaret Hensley, was opposed to unioniza-
tion. The record will also support a finding that the wife of Shift Foreman Stephen-
son frequently ate lunch with the group, and that she participated in the general
conversation which marked the informal lunch period. There is evidence, which
I credit, that she (Mrs. Stephenson) referred-at least once-to Armstrong's dislike
for unions. While the record cannot be said to contain testimony explicit enough
to support a factual finding that Mrs. Stephenson or Hensley ever mentioned this
"union talk" or designated the Union adherents known to them, in contemporaneous
conversation with the third-shift foreman or any other management representative,
an inference that they did not-particularly in the case of the shift foreman's wife-
would certainly strain credulity. Without regard to inference, however, it would
seem to be clear that knowledge with respect to the Union's organizational effort,
and the involvement of Dr. Birdsall in it, as of the 25th of February, may be imputed
to the Respondent herein. And I so find. This conclusion, of course, is based
upon Wheat's testimony, previously noted, that he learned of Dr. Birdsall's role as
the host of the first union meeting on the indicated date. As a matter of law, this
would seem to be sufficient to bind the Respondent in this case. It should also be
noted however, in this connection, that Wheat evidenced an inability to deny,
categorically, the communication of his knowledge to Vice President Greene or
Plant Superintendent Armstrong before the end of the day. And, under the
circumstances, his mere "belief" that he mentioned the matter to the plant superin-
12 The Respondent has challenged the General Counsel 's argument, in this connection,
that Wheat is a supervisor, whose knowledge with respect to the Union's campaign may
be attributed to his superiors as a matter of law. And an extended discussion of the
available evidence with respect to the supervisory status of the firm's shift foremen
will be found , therefore , elsewhere in this Report. At this point , I find it sufficient to
note my conclusion that the shift foremen at the mill may properly be classified as super-
visors, within the meaning of the statute . Any knowledge acquired by them , therefore,
with respect to employee union activity, may be attributed to the Respondent as a matter
of law.
CALIFORNIA TEXTILE MILLS 1261
tendent for the first time on the 27th or 28th of the month cannot be characterized
as persuasive. The Respondent, in this state of the record, did attempt to foreclose
an inference that its principal supervisory officials knew about the Union's campaign
and Dr. Birdsall's involvement in it before the 28th of the month; President Touton's
testimony, previously noted, would warrant an inference, for example, that he first
heard of the Union's organizational effort on the 28th, and that Greene and
Armstrong, when queried by telephone on that date, confessed to him their lack
of knowledge in the premises. While I am willing to credit Touton's testimony
that he, personally, did hear about the Union's initial employee meeting on the
28th, for the first time, his testimony that the firm's vice president and plant
superintendent professed a lack of prior knowledge with respect to the labor
organization's activity -on that date cannot, of course, be considered probative as
to the actual nature of the information in their possession. Armstrong's insistence, as
a witness, that he acquired no knowledge of the Union's campaign on the 25th
impressed me as unpersuasive. And, absent convincing denial, the evidentiary
basis for a factual inference with respect to the management's knowledge in the
premises-supplementary to any legal imputation-would seem to be clear.
In regard to Vierra, it seems to be the General Counsel's contention, essentially,
that an inference with respect to the Respondent's antecedent knowledge of her
union activity may be drawn, retrospectively, from:
1. The fact that she revealed her union interest in the course of several general
conversations in the presence of the shift foreman's wife.
2. The fact that she had "probably" been observed attending the -union meeting
in Lemoore, at Dr. Birdsall's office.
3. The fact that her interest in the Union was well known in the plant, and,
therefore, must have come to the attention of the mill management.
4. The fact that Shift Foreman Stephenson allegedly advised her on several occa-
sions, in substance, that union adherents in the Respondent's employ would be
subject to discharge.
Although the available evidence, in my opinion, will not sustain a definitive con-
clusion that Vierra's shift foreman actually made the remarks attributed to him,
I am satisfied that her active interest in the Union was, in fact, apparent to a number
of her fellow employees-Mrs. Stephenson included. The record will not sustain
a finding that she was, actually, observed in attendance at the Lemoore union meeting,
but her other activity in behalf of the Union appears to have been open. The Board
has recently announced its lack of willingness to draw an inference with respect to
an employer's knowledge of particular employee union activity solely on the basis
of the small size of the plant involved. B. V. D. Company, Inc., 110 NLRB 1412;
cf., also, N. L. R. B. v. C. W. Radcliffe, et al., 211 F. 2d 309 (C. A. 9). But there
can be no doubt, pragmatically, that circumstances sufficient in themselves to raise
the indicated inference may legitimately be treated as imbued with greater -persuasive
impact when the employer's operation is a small one.
In this case, of course, the General Counsel's contention cannot be said to rest
upon inference exclusively. As of March 7, 1957,,the Union appears to,have been
advised by the Respondent's vice president that a previously completed "careful
investigation" of the mill employees, presumably undertaken in the firm's name, had
revealed their lack of interest in the Union as a bargaining agent. Evaluated in the
light of Touton's antecedent interrogation of Kapics, and the Respondent's present
contention with respect to its retention of numerous union adherents as employees,
this declaration would clearly seem to warrant a conclusion-without regard to any
inference based upon data as to the size of the mill-that the Respondent 's manage-
ment did, in fact, learn the identity of the principal union adherents, at least, within
a very short time after the organization 's campaign came to its attention. As the
Union's business manager has pointed out, it must surely be considered more than
coincidental that the discharge of Vierra-and that of Kapics as well-occurred while
the Respondent's "investigation" was under way. It is also argued, by -the General
Counsel's representative, that the -Respondent's knowledge with respect to Vierra's
union activity may be inferred from the circumstances under which her employment
ended. Since the available evidence in this connection, however, may also be said
to bear upon the issue posed herein as to the motivation attributable to the Respond-
ent in connection with the termination of her employment, a consideration of its
implications 'will:be(deferred.
With respect to Schindler, however, none of the inferences indicated may legiti-
mately be drawn. His involvement in union activity-as revealed in the record-
appears to have been limited to his attendance at the February 24 union meeting.
And 'it has already been noted, in this Report, that no reliable, probative, or sub-
stantial evidence has been adduced to establish, first, that actual surveillance of the
meeting was effectuated , or, secondly, that the Respondent was immediately able to
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
determine the identity of those in attendance. Upon the entire record, therefore,
I am unable to conclude that the Respondent was, in fact, aware of Schindler's union
adherence at the time of his separation. The comment of Vice President Greene,
in reply to the Union's recognition demand, as to the firm's "careful investigation"
of its employees, does suggest the possibility, of course, that the mill management,
actually, may have been aware of Schindler's interest in the Union as of the date
of his termination. In the absence of other evidence, however, with a reasonable
tendency to sustain the indicated inference, Greene's comment, alone, can only be
said to create a basis for suspicion. And suspicion, of course, cannot be treated as
proof; certainly it cannot be considered sufficient to sustain the General Counsel's case
When our attention is directed to the issue posed with respect to the Respondent's
motivation, however, much of the evidence adduced in the General Counsel's name
may properly be characterized as suggestive.
Nothing in the record, of course, will sustain a conclusion that the course of conduct
attributable to the mill management clearly reveals its unequivocal desire or intent
to discourage membership in the Union and activity in its behalf. It should be
remembered, however, that the question involved-as to the motivation attributable
to the Respondent with respect to the discharges-is a factual one, and that, in pass-
ing upon it, the Board is free to give consideration to circumstantial evidence as well
as to that which is direct. Hartsell Mills Company v. N. L. R. B., 111 F. 2d 291,
293. And, in the field of administrative adjudication, it is a truism, of course, that
direct evidence of a purpose to violate the statute is rarely obtainable. This agency
has had occasion, many times, to rely upon circumstantial evidence to establish an
employer's motive or intent. And it has done so with judicial approval. See F. W.
Woolworth Company v. N L. R. B., 121 F. 2d 658, 660, among other cases. As
the Court of Appeals for the Second Circuit put it in the cited case:
courts and other triers of facts, in a multitude of cases, must rely upon
["circumstantial"] evidence, i. e., inferences from testimony as to attitudes,
acts and deeds; where such matters as purposes, plans, designs, motives, intent
or similar matters are involved, the use of such inferences is often indispensable.
Persons engaged in unlawful conduct seldom write letters or make public pro-
nouncements explicitly stating their attitudes or objectives; such facts must
usually be discovered by inference; the evidence does not come in packages
labeled "Use me," like the cake bearing the words "Eat me," which Alice found
helpful in Wonderland. .. .
In the light of these considerations, our attention may properly be directed to the
circumstances which accompanied Dr. Birdsall's termination.
In this connection, particular note should be taken of the fact that the slubber
tender was informed of his dismissal at the outset of a shift, on the second day of his
workweek.13 The circumstances under which the dismissal was effectuated, there-
fore, clearly reflect a deviation from normal business procedure. If, in fact, the
Respondent wished to dispense with the services of Dr. Birdsall for business reasons,
no cogent reason is suggested for the failure of the mill management to advise him of
his layoff, previously, at the close of his regular shift, on the final day of his work-
week-that is, at 6 o'clock on Sunday morning. And nothing in the Respondent's
presentation suggests the development of an emergency, with respect to production or
the Respondent's financial status between the end of the slubber tender's regular
workweek and the start of the second shift in his new workweek.
Additionally, it is worthy of note that the firm's plant superintendent made a spe-
cial trip to the mill at 10 o'clock on the evening of the 25th to hand Dr. Birdsall two
pay checks previously prepared, and to tell him of his dismissal.14 Armstrong's testi-
mony in direct examination would indicate that he received orders from President
Touton and Vice President Greene, one morning, to "cut out" the mill operation at
which Dr Birdsall was employed, and that he advised the slubber tender of the firm's
decision on the following morning, after his arrival at the plant. Upon the entire
record, however, I am satisfied that Armstrong's initial recollection, in this connection,
19 The testimony of Plant Superintendent Armstrong establishes that the calendar week
is utilized as the Respondent's workweek, and that Friday of each week is fixed as the
firm's regular payday
14 The record establishes that Armstrong normally reports at 5: 80 in the morning,
and that he usually remains at work until sometime in midafternoon When, upon occa-
sion, he has visited the mill while the third shift is in progress, he has usually done so
in connection with an emergency affecting production, his visits, then, have taken place
at various times, and the record establishes that he had remained at the plant, ordinarily,
only long enough to deal with the emergency and to check operations
CALIFORNIA TEXTILE MILLS 1263
i
was faulty, and that Dr. Birdsall was advised of his termination on February 25, in
the evening. In cross-examination, Armstrong conceded as much.
The abruptness of an employer's discharge action, and its timing, have frequently
been cited as persuasive evidence with respect to the issue of the firm's motivation.
See N. L. R. B. v. Montgomery Ward & Co., Inc., 242 F. 2d 497 (C. A. 2);
E. Anthony & Sons v. N. L. R. B., 163 F. 2d 22, 26-27 (C. A., D. C.). And the
ninth circuit, also, has held that the fact that a worker, in the employ of a respond-
ent for the greater part of 3 years, is discharged within 2 weeks after the inception of
his union activities, of itself makes the discharge suspect. N. L. R. B v. San Diego
Gas and Electric Co., 205 F. 2d 471, 474. In this case, the record is clear that
Dr. Birdsall's dismissal occurred on the evening of the very day that a responsible
representative of the mill became aware of his involvement in the Union's organiza-
tional campaign. And its effectuation -at the start of a shift, in the midst of a work-
week, certainly seems to suggest the propriety of a conclusion that its motivation is to
be found in circumstances other than those relevant to the Respondent's economic
situation. Additionally, of course, the Respondent's action is rendered more suspect
by virtue of the fact that Dr. Birdsall is revealed by the record as an employee with
7 months' experience-the recipient of several compliments with respect to his work
and 2 raises. The mill management has deprecated the significance of his personnel
record in this respect, and asserts that employees were complimented and given wage
increases, indiscriminately, to encourage effort and reduce turnover during the firm's
growth period. This may have been true. Nevertheless, I find the assertion insuf-
ficient to vitiate, entirely, the probative worth of the evidence noted to establish that
Dr. Birdsall was actually considered a satisfactory employee; I note also, in this con-
nection, the fact of his prior selection-not disputed in the record-to assist in training
Ellis Wheat, or some other employee, as a ^slubber tender.
Dr. Birdsall's testimony that the newly hired slubber tender trainee, with whom he
worked immediately prior to his dismissal, was retained by the Respondent as a
Blubber hand on the two large slubbers after the 24th of February has not been
contradicted; the payroll records which could have been adduced or cited in this
connection were not even mentioned in support of the Respondent's contention that
Dr. Birdsall's termination involved a partial slubber shutdown. Under the circum-
stances, I credit the slubber tender's testimony with respect to the trainee, and find it
corroborative of my conclusion, previously noted, as to the lack of an established
business reason for his separation
A similar conclusion may be drawn with respect to the termination of Kapics.
The record, previously noted, establishes his interrogation by President Touton on
March 1. It also establishes the dispatch of the Union's recognition request on
that date; the receipt of the request by the Respondent on the 2nd of the month, in
the usual course of the mails, may be inferred. And the layoff of Kapics followed.
As in Dr. Birdsall's case, some significance, certainly, may properly be attributed to
the fact that it did not occur at the close of the workweek; Kapics was permitted
to perform his regular work as a carding machine operator for the full second shift
on Sunday, March 3, 1957, and he was informed of his dismissal, thereafter, within
"5 minutes" affer his shift began on the following day. The circumstances
attendant upon the termination of Kapics, therefore, give every indication of precipi-
tate action on the part of the Respondent's management, previously noted in this
Report -
In addition, of course, it is worthy of note that when Kapics conferred with
President Touton, immediately after the plant superintendent's dismissal action, the
president expressed surprise at the action of his subordinate, but made no effort to
arrange for the parolee's reinstatement
Several aspects of the situation, in this connection raise significant questions. It
is established, in this case, that the plant superintendent-armed with knowledge in
regard to the status of Kapics as a parolee-felt impelled, on at least one previous
occasion, to confer with President Touton in regard to his retention, after reaching
a conclusion that he (Kapics) would be unable to function effectively as a slubber
tender. Discussions with, respect to the retention of Kapics, indeed, appear to
have been initiated several times. Armstrong never made a comparable effort to
confer with the head of,the firm in regard to the future status of the parolee, however,
after the union campaign began; despite Touton's previous indication of his personal
interest in the employment of Kapics, Armstrong then took it upon himself to
effectuate the employee's dismissal unilaterally.15
15 This in the face of his own admission , as a witness , that he would have taken
"action" with respect to the employment of Kapics previously, except for his knowledge
of Touton's interest in the parolee's employment When advised of his plant superin-
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is obvious, of course, that Kapics cannot justify a claim for special consideration
at the hands of President Touton-as a former prison inmate-as a matter of right.
Before he manifested his interest in unionization, however, he appears to have been
an object of praiseworthy interest and solicitude on the part of the president; after
his admission, under interrogation, that he favored the unionization of the mill,
he received short shrift at the mill management's hand. It would seem to be clear,
even in the face of evidence tending to establish that the plant superintendent may
have considered him an inefficient employee-which I find it unnecessary to
evaluate-that the parolee's patent interest in the Union significantly affected the
treatment he received. And I so find.
The Respondent's treatment of Vierra also reflects a willful or callous departure
from sound personnel practice, and fully warrants an inference of discrimination
on the basis of her antecedent union activity. The record establishes her employ-
ment tenure as a winder-tender. And no evidence has been adduced to establish
that her service in this capacity was ever considered unsatisfactory, in any respect.
As a witness, Armstrong characterized her as a "very good" winder tender. The
pay increase she received approximately 7 weeks after her employment began,
indeed, bespeaks the satisfaction of the Respondent with her work. So does her
undisputed testimony with respect to the compliments she received. Clearly, she
was a willing employee. On two occasions, prior to her termination, she accepted
temporary reassignment as a drawing frame tender. The available evidence with
respect to the first occasion establishes her acceptance of the reassignment without
complaint. And with respect to the second occasion, the record establishes, without
contradiction, her willingness to accept the reassignment despite its apparent
tendency to render her dizzy and nauseated. Plant Superintendent Armstrong's
knowledge in regard to her demonstrated willingness to accept reassignment, and
the difficulty she experienced as a frame tender, is clear.
As a witness, Armstrong conceded his direct responsibility for the employee
transfers and reassignments effectuated on any shift; he also acknowledged, I find,
that employee transfers and reassignments effectuated by shift foremen without his
antecedent knowledge and concurrence would routinely come to his attention. I
can place no credence, therefore, in his disclaimer of specific knowledge with respect
to Vierra's acceptance of temporary reassignments effectuated by Shift Foreman
Jones on each of the occasions, previously noted, which preceded the incident
which led to her separation. The testimony of the winder tender establishes the
comment of Shift Foreman Jones, shortly after she had to relinquish her second
assignment as a frame tender, that her tendency to become nauseated at the frames
had been mentioned to Plant Superintendent Armstrong on the occasion of the first
assignment. As a witness, Armstrong denied the receipt of any such report. Upon
the entire record and my observations, however, I do not credit his denial. The
available evidence provides no indication that Jones had any reason to misrepresent
the situation to Vierra, at the time of his conversation with her. And, in the light
of the record as a whole, I find Vierra's testimony with respect to the shift foreman's
statement probative in two respects. Obviously, it may be accepted, as a matter
of law, to establish that Shift Foreman Jones did, in fact, tell her about his ante-
cedent report to the plant superintendent. And, additionally, it would seem to be
acceptable as a vicarious admission of the shift foreman, with respect to the actual
content of the indicated report. Drico Industrial Corporation, 115 NLRB 931,
932; cf., Orenduff & Kappell, Inc., 118 NLRB 859. I so find. Under the circum-
stances, Armstrong's personal decision to reassign Vierra to the frames, within 3
days after the Respondent's receipt of the union communication previously noted,
would certainly seem to be worthy of characterization as an attempt at harassment.
And an inference with respect to the superintendent's discriminatory motivation
would appear to be warranted, also, in the light of the available evidence, which I
credit, that he paid no attention, whatever, to the winder tender's reiterated report
that she had suffered an adverse physical reaction to the work, previously. His
insistence that she would have to accept a layoff rather than a transfer, if unable
to handle the assignment, also, clearly, reflects an intention to subject Vierra to
disparate treatment.16 A conclusion that the mill management was engaged in a
deliberate attempt to harass Vierra and thus create a pretext sufficient to justify her
tendent's action, Touton merely expressed regret ; he made no effort to find a new assign-
ment for the parolee.
1e Her testimony that winder, tender Louise Davis had been retained as a third-shift
employee despite her inability to "get along" as a frame tender has not been contradicted.
And I have, elsewhere in this Report, found it worthy of credit
CALIFORNIA TEXTILE MILLS 1265
termination finds support , also, in the credible testimony she proffered that two
frame tenders were excused for the night by Shift Foreman Stephenson at the time
of her last reassignment . As a witness , Vierra designated the individuals involved
by name ; although her recollection in this respect cannot be characterized as complete,
the individuals allegedly excused were clearly identifiable on the basis of her
testimony . The Respondent , however, made no real effort to. controvert the recital
or rebut the inference derivable therefrom . When called as a' witness Shift Foreman
Stephenson was not -interrogated with respect to this aspect of Vierra's testimony.
And the plant superintendent , when questioned in this connection , merely proffered
a general denial that any employees were shifted , excused or relieved of duty
temporarily at the time of,Vierra 's reassignment . His testimony with respect to the
third shift winder tenders, generally , was uncertain . And the Respondent 's payroll
record for the month , which could have been utilized to settle the matter , was neither
produced nor cited . In the light of the entire record , Armstrong 's unsupported denial
in this connection , as I see it, cannot be characterized as persuasive . Some account,
of course , must also be taken of the "well-known rule" that when a party produces
such evidence as it is in his power to produce , its probative effect is enhanced by
the silence of his opponent , and the companion doctrine that when a party charged
with the burden of producing evidence as to a particular fact has the evidence
within his control and withholds it, a presumption may be indulged that such
evidence is against his interest and insistence . N. L. R. B. v. Ohio Calcium Company,
133 F . 2d 721, 727 (C. A. 6). In the course of this case , it is true, counsel for each
party evidenced a desire to complete the testimonial presentation required as ex-
peditiously as possible . But the Respondent , clearly, cannot deny its awareness of
Vierra 's testimony 1 day prior to its presentation of Plant Superintendent Arm-
strong as a witness . And nothing in the record suggests that the Respondent's
testimonial presentation would actually have been unduly extended if its relevant
payroll records had been available for consultation or inspection . I find the firm's
failure to produce them significant , therefore , as indicated.
Upon the entire record , I am satisfied that Vierra was terminated involuntarily
by the Respondent 's plant superintendent , upon the pretext that her inability to per-
form the work required of her as a frame tender made her retention as an employee,
in any capacity , inadvisable . In the light of the relevant circumstances , the course
of conduct attributable to the Respondent in this connection clearly warrants
characterization as disparate treatment . And, in the light of Vierra 's demonstrated
interest in unionization , the Respondent 's transparent attempt to create a pretext
sufficient to justify her discharge will, in my opinion , fully warrant an inference
that the plant superintendent 's conduct actually reflected an intent , on his part,
to discourage union membership and activity . I so find.
2. The respondent employer 's defense
In attempting to meet the General Counsel 's contention with respect to the dis-
charges, the Respondent initially asserted that each of the separations challenged
as discriminatory had, in fact , been occasioned by
a periodical slow season in the business of Respondent whereby the
production of the Textile Mill was curtailed sharply due to lack of orders... .
And, in this context , it was the Respondent 's initial contention that Dr. Birdsall,
Kapics, and Schindler were selected for separation because of their low production,
their lack of aptitude for the specific work they did, and their general lack of
capacity for textile mill employment ; Vierra, however, was alleged to have left her
employment voluntarily.
In connection with any attempt to analyze the soundness of these contentions, it
should be noted at the outset that the Respondent has not pressed its primary
assertion, that the separations challenged as discriminating in this case were related,
in some way, to a seasonal decline in production . And the available evidence,
indeed, would clearly foreclose insistence upon any such contention . The only
seasonal "dip" noted in the , record occurred in July of the Respondent's first year.
President Touton 's testimony in cross-examination, with respect to the slump,
is worthy of quotation in full. It reads as follows:
We had 125 ,000 pounds in June , 85,000 pounds in July , 125,000 pounds in
August , 125,000 pounds in September , 153,000 pounds in October , 150,000
pounds in November , 185,000 pounds in December, all of which were coarse
yarns and all of which were limited as to the amount we made, with the
483142-59-vol. 120-81
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exception of July, by our ability to produce them. In July we had a customary
seasonal summer dip. We dropped back to two shifts in July, but picked them
right up, and our business in August picked up to full volume. [Emphasis
supplied.]
The record is silent as to the reason for the "customary" seasonal decline thus indi-
cated; I find the available evidence sufficient, however, to warrant a conclusion that
the Respondent's seasonal "dip" occurs in midsummer, and that the course of conduct
challenged in this case an unfair labor practice cannot be characterized, therefore, as
the Respondent's reaction to a seasonal fluctuation in business.
In the light of the available evidence, the Respondent's actual contention is seen
to be a contention that it was confronted with a need to reduce personnel when the
market demand for its product-solution-dyed rayon viscose carpet yarn-declined.
And an analysis of the record, to determine the nature and extent of the asserted
demand decline, therefore, would seem to be required.
The available information with respect to the Respondent's production record, in
the main, will not, in my opinion, sustain the contention that the "effective" demand
for its product declined to such an extent as to require the adoption of a deliberate
policy of staff reduction.
President Touton's testimony with respect to the Respondent's experience in its
first year of operation indicates that the firm's production reached a "plateau" of
125,000 pounds per month in midyear, and that it subsequently rose to the 150,000
pound level in October and November 1956. It is quite clear that the record produc-
tion of the Respondent in December 1956 and January 1957 reflected a peak effort
on the part of the firm to meet its outstanding commitments, and that its record in
February 1957 thus reflected a substantial decline in productive activity. Neverthe-
less, it is worthy of note that the Respondent's February production level-which it
now cites, in retrospect, as a harbinger of things to come-exceeded its monthly
production during the previous summer, and made the month-despite its limited
number of working days-the fifth best month in the firm's history. And within a
month, clearly the Respondent was able to recover some lost ground; its production
levels in March 1957 and the following month equalled the levels reached during the
previous October and November, noted.17 These figures, in my opinion, do not
establish a permanent decline in "effective" market demand for solution-dyed rayon
viscose carpet yams, sufficient to require an immediate reduction in mill personnel.
Taken as a whole, the record will, of course, warrant a conclusion that the Respondent
was no longer operating in a "seller's" market with its customers prepared to take all
the yarn it could produce. And, in the light of the available evidence, I am satisfied,
indeed, that the operation of the firm since the end of January 1957 has continued on
a "hand to mouth" basis and that, as Touton testified:
... it has been a continuous struggle to get shipping instructions and orders far
enough ahead, even to let us know what type and colors of staple to order from
the East Coast... .
On the basis of the Respondent's actual production record, however, I am satisfied
that Touton and Greene have, in fact, adjusted aggressively to the new situation, and
that their struggle for new orders and shipping instructions, in a reoriented "buyer's"
market, has been attended with moderate success. The firm's speculative willingness
to raise production to the 150,000 pound level in March 1957 is indicative. And
some significance, certainly, should be attached to the fact that the Respondent's
July 1957 production-in the midst of a period of allegedly lower demand-did not
decline to the low level reached in July 1956 when the firm experienced its first
seasonal slump.
In the large, then, the available evidence can be said to establish that the Respond-
ent was, in fact, confronted with a business crisis early this year, presaging a possible
decline in sales, and a derivative need to cut back production; it can also be said to
establish, however, the moderate success of the Respondent's obvious attempt to meet
the situation with an intensified sales effort, and thus to make possible the maintenance
of a production level and staff complement roughly equivalent to that achieved during
the Respondent's growth period.
w" The record. does reveal that the production level at the Respondent 's mill has since
fluctuated somewhat; with one exception, however, the variations Indicated cannot be
said to bear, persuasively upon the Respondent's contention in this case
CALIFORNIA TEXTILE MILLS 1267
A study of the Respondent's payroll records will support and strengthen this
conclusion. In sum, these records provide the following information:
Month Staff at
outset
Hired Separated Netincrease
or decrease
Staff
at end
1956
October------------------------------------------- 65 11 9 +2 67
November----------------------------------------- 67 9 8 +1
68
December----------------------------------------- 68 17 10 +7 75
1957
January------------------------------------------- 75 6 4 +2 71
February------------------------------------------ 77 12 17 -5 72
March--------------------------------------------- 72 4 11 -7 65
April ---------------------------------------------- 65 9 5 +4 69
May--------------------------------------------- 69 1 10 -9 60
June----------------------------------------------- 60 9 7 +2 62
July----------------------------------------------- 62 6 24 -18 44
Considered as a whole, this record does not establish the actual effectuation of a
conscious policy of staff reduction. Exclusive of July 1957, when the Respondent
was again confronted, presumably, with a "customary" seasonal slump, it reveals
the hire of 78 and the separation of 81 employees.18 The available evidence estab-
lishes that the firm, throughout its history, has been largely dependent upon the local
community as a source of labor supply, and that most of its employees have lacked
prior textile mill experience. Training on the job has been a feature of the Respond-
ent's personnel policy. And the high rate of employee turnover characteristic of
the Respondent's experience to date has, clearly, imposed a heavy cost burden. These
considerations would, obviously, suggest the advisability of a personnel policy
calculated to preserve, for the firm, the benefit of its heavy investment in training
employees, while permitting the reduction of current output, if such a reduction
should prove to be necessary. And President Touton's testimony does, in fact, indicate
that the Respondent has attempted to meet the problems traceable to its uncomfort-
able "short order" position by reducing the number of working days at the mill.
Saturday work has been abandoned; the mill has been closed on every possible
holiday; employees, as a group, have been given 3- and 4-day weekends; and short
,periods of shutdown have been ordered in April and May of this year.
The Respondent, in short, has actually been engaged in a conscious effort to
reduce production, whenever a reduction has appeared to be necessary, by the con-
traction of its workweek, rather than a reduction in the size of its labor force. In
the main, the slight reduction in the size of the Respondent's labor force established
by the record appears due largely to employee turnover, with respect to which the
Respondent has admittedly exercised little conscious control.
President Touton's testimony and that of the plant superintendent in this connec-
tion, taken at face value, would indicate an intention to utilize the "slack" period
anticipated by the Respondent, at the outset of the year, to cull out its least efficient
employees, and to "upgrade" the general level of its mill personnel.
In retrospect, however, this appears to have been nothing more than an expression
of pious hope. The record establishes that the Respondent's management has never
made a real effort to persuade qualified or experienced employees bent on resignation
to remain. It has, instead, accepted turnover by resignation, to date, as a normal
business hazard. And except for Touton's abortive effort to secure qualified help,
with textile mill experience, from San Quentin on parole, the firm has made no
effort to establish a positive recruitment program. With respect to hire and separa-
tion, in short, the Resliondent•has found itself-throughout a crucial period in its
history-at the mercy of the ebb and flow characteristic of the uncontrolled labor
market.
Is Within the 5-month period between February and June, of course, it does reveal the
employment of 35 and the separation of 50 workers. I find it worthy of note in this con-
nection, however, that the net reduction in the mill's personnel complement over this
5-month period was the result of a cyclical movement in which the total staff of the firm
declined in February and March, rose in April, declined in May, and rose again in June.
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Despite the concession of Touton as a witness, that the mill management has found
itself powerless , in the main, to control normal turnover, it is argued that the
Respondent did, in fact, maintain and effectuate a conscious policy of retrenchment,
beginning in February, and that each separation challenged in this case as discrimi-
natory reflects an application of that policy. The record, however, will not sustain
this contention. And an analysis of the Respondent's payroll records will reveal
its weakness:
1. The Respondent's February payroll record-as explicated by the firm' s plant
superintendent from memory-reveals eight resignations, all of them before the
16th of the month. Armstrong identified four other separations, prior to the 16th,
as layoffs. Two of these were characterized as layoffs due to lack of work, and
one as a layoff due to incompetence. The reason for the remaining layoff has not
been specified. As a witness, the plant superintendent could not recall the explana-
tion of another separation noted on the 14th of the month; he was, however, able
to identify Margaret Allen as an employee discharged on the 17th for drunkenness.
The only other employees terminated in February are identified in the present
record as E. Ray Birdsall, Abe E. Bowlin, and Hazel Bowlin, separated as of the
26th of the month. The plant superintendent's testimony with respect to Birdsall's
termination has already been noted. Armstrong went on to testify that Abe Bowlin
could not do the work required of him as a card grinder, and that-Hazel Bowlin
was terminated with her husband because she was only a "learner" without expe-
rience . The record, however, shows Hazel Bowlin's date of hire as October 1,
1956, and Abe Bowlin's date of hire 9 days later. While these separations were
being effectuated, the Respondent hired 12 new employees; 3 of these, Dean
Henshaw, Jimmie E. White, and Ora M. 'White were hired on the 26th of the
month. This record, in my opinion, fails to reveal a conscious effort by the
Respondent to reduce personnel and "upgrade" the level of the workers retained.
And the firm's argument, in this connection, is rendered particularly suspect, as I
see it , by the employment of three new workers on the very day when Plant Superin-
tendent Armstrong dispensed with the services of Dr. Birdsall and the Bowlins,
allegedly as a part of the firm's effort to improve efficiency.is
2. The Respondent's March payroll reveals 11 separations. Three of these, at
the outset of the month, are challenged, in this case, as discriminatory discharges
reasonably calculated to discourage 'union membership and activity. Every one of
the others has been characterized by the firm's plant superintendent as a resigna-
tion or discharge for misconduct-as distinguished from a discharge for incompe-
-tence or lack of work. At the same time , the Respondent was hiring 4 employees;
only I of these, Odell Green, was a recalled worker, conceivably reemployed by the
firm-despite a separation in October of the previous year-because of his or her
ability. A record in which three disputed separations are revealed as the only ones
designated as layoffs calculated to promote the "upgrading" of the mill' s personnel,
cannot, in my opinion, convincingly be said to evidence a conscious policy of staff
reduction and improvement.
3. Fred Schindler, separated in March, is shown to have been hired on February
12, 1957; the record establishes his employment as a trainee in the Respondent's
card room, where-an effort was made to "teach" him the work 20 Armstrong's
testimony, however, indicates his subsequent layoff to have been dictated by his
status as a surplus employee. The Respondent's management knew in January,
allegedly, that it would have to retrench; no attempt has been made to explain
the employment of an extra trainee in February, under the circumstances indicated.
An inference is clearly warranted, in my opinion, that the firm was not, in fact,
confronted with an immediate need to restrict personnel , as of the date of
Schindler's employment, and that it was not, in fact, then engaged in a retrenchment
program.
za The Union's Initial charge, in this case , designated the Bowlins as employees discrim-
inatorily discharged. And the General Counsel indicated , orally , that the Respondent
would have been charged with discrimination against them, in the complaint, if they
had been available to testify as of the date of Its issuance . In the absence of a justifiable
issue, It would be inappropriate to attempt a determination as to the merit of the Re-
spondent's contention with respect to the circumstances of their layoff. Armstrong's at-
tempt to classify Hazel Bowlin as a learner, despite a history of 5 months in the Re-
,spondent's employ, is worthy of note-as a matter -of some significance, however, in
connection with any attempt to determine,the worth of the Respondent's contention that
it was currently engaged in a legitimate retrenchment and improvement program.
m My notation , elsewhere In this Report, that the record is silent as to his job assign-
ment, appears to have been erroneous.
CALIFORNIA TEXTILE MILLS 1269
4. The record establishes that Huston McKamie was employed on March 16,
1957. With respect- to his employment Shift Foreman Stephenson testified that:
. we didn't have any particular place to put him right then, so,I gave him
practically the run of the mill, to help each and everybody in there until we
could place him as a matter of'fact... .
McKamie appears to have left the Respondent's employ on-the 19th of the month,
however, after demanding his pay forthwith and threatening Stephenson with a
drawn knife to get it. Certainly the employment of an inexperienced worker as a
general helper, without a particular assignment, cannot be reconciled with the
Respondent's announced policy of retrenchment and staff upgrading.
5. In April 1957, five separations are reported by the firm. Three of these are
identified as resignations. One employee, Kenneth Davis, is reported to have been-
drafted. And the fifth separation, that of Eleanor Yeager, is described by Plant
Superintendent Armstrong as a discharge for drunkenness. For the same month, the
Respondent's payroll shows nine employees hired or recalled. Three of these were
Hungarian refugees; their employment appears to have been motivated entirely by
altruism. Of the 6 remaining only 1, Pauline Cotta, appears to have been a recalled
employee. Once again, we are confronted with a situation in which the record fails
to support the Respondent's contention with respect to its involvement in a program
of planned personnel reduction and improvement.
6. In May, the Respondent reemployed Raymond Rowe; according to Plant Super-
intendent Armstrong, Rowe had resigned 3 months previously to return to Texas with
several other employees. The firm's payroll record does list 10 separations; three of
these, however, involved the Hungarian refugees previously noted. The plant super-
intendent's testimony taken at face value, indicates that the Respondent was still pur-
suing a policy of staff reduction; he was not requested, however, to provide a detailed
analysis of the seven bona fide separations listed for the month, and no conclusion can
be announced as to whether any of them were initiated by the firm.
7., In June, when the Respondent's production level rose from 109,000 to 124,000
pounds of yarn, it hired or recalled 9 employees while separating 7. Margaret Hen-
sley was among those separated. The record does not establish whether her employ-
ment ended with a layoff or a resignation. Insofar as the record shows, however, her
separation was the first affecting the third-shift winder tenders after Vierra's discharge.
The available evidence indicates that seven of the employees added to the Respond-
ent's payroll in June were new employees; only two-Clares Pillow and Eleanor
Yeager-were recalled. And Yeager, as previously noted, had been discharged for
drunkenness 2 months earlier. -
8. In July, apparently, the Respondent effectuated its third-shift layoff. Of the
24 separations reported for the month, 12 are reported as of the 18th; it may- be
inferred that the third shift was laid off on or about the indicated date. Among those
laid off were Martha Bowers and Louise Davis, Vierra's fellow winder-tenders?'
The Respondent's July payroll, however, also shows six employees hired or recalled.
And it would seem to be worthy of note in this connection, that one-Sam Green-
was hired on the 15th, and two-JohnLivermont and Pearl Nickell-were hired on
the 16th of the month. All three were terminated on the 18th, the presumed date of
the third-shift layoff. The Respondent has adduced no evidence to explain its need
or willingness to employ these individuals immediately prior to a general staff reduc-
tion, whether they were employed on the third shift or not.
This record, viewed as a whole, cannot be said to evidence a conscious policy of
retrenchment on the part of the Respondent herein. Very few of the separations
noted, aside from those challenged in this case as discriminatory, have been explained
by the Respondent as due to lack of work. A large majority of them, instead, appear
to have involved resignation 22 The Respondent seems to argue, however, that it
attempted to utilize normal turnover to effectuate a staff reduction, and to "upgrade"
its remaining personnel. The available evidence establishes, however, that the mill
management made no real effort to forestall the resignation of experienced help
except, conceivably, by sporadic wage increases. It may be true, as the testimony of
n Louise Davis, it will be remembered, was the winder tender previously retained in
the Respondent's employ despite her claimed inability to "get along" as a frame tender.
22 If, in fact, the Respondent was interested In staff reduction, what significance is the
Board to attach to the employment of Ellis A. Wheat as a slubber trainee on February
6, 1957, after the date of the Respondent's asserted decision to'"gear' for lower produc-
tion? And what significance is to be read into the employment of Huston Megamie
without a fixed assignment, within 2 weeks of the separation of Kapics, Schindler, and
Vierra?
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
President Touton and Plant Superintendent Armstrong implies, that much of the
turnover noted involved employees of unproved worth, who accepted employment as
trainees and then left, without notice, within a short time; nevertheless, it is clear that
quite a fey of the separations noted in February 1957, and thereafter, involved em-
ployees with some seniority, and that the Respondent never made an effort to deter-
mine whether experienced employees, bent on resignation, could be persuaded to
stay.23 In this connection, also, I find it worthy of note that Shift Foreman Stephen-
son-after supposedly being told, at a management conference, of the Respondent's
need to cut production-did nothing to designate the weakest workers on the third
shift except to evaluate Schindler and Capote comparatively, pursuant to a request of
the plant superintendent. The testimony of Plant Superintendent Armstrong indi-
cates that each of the Respondent's frames mechanically records a "poundage" report
which may be consulted to check the efficiency of the employee responsible for its
operation; his recital includes an assertion that he consulted these records in deter-
mining the people to "cut" from the mill staff. The records were not adduced or
cited, however, to explain the selection of Dr. Birdsall and •Kapics for dismissal.
And some collateral significance, surely, may be attached to the fact that the testimony
of Mrs. Stephenson establishes the employment of a new man on the third shift as of
August 13, 1957, to run a machine which grinds up waste; there is not the slightest
evidence in the record of an active desire on the part of the Respondent-at this time
or any other-to rehire laid:off workers of known ability.
Upon the entire record, then, I am satisfied that the Respondent's present attempt
to explain the separation of Dr. Birdsall, Kapics, and Vierra as the result of a staff
reduction merits characterization as unpersuasive. The firm, obviously, faced a
presumed business crisis when its customers indicated that an urgent demand for
solution-dyed-rayon viscose carpet yarn no longer existed. And the mill manage-
ment, under the circumstances, could reasonably be expected to anticipate an ulti-
mate need to cut back production. The record, however-previously noted-estab-
lishes that the mill employees were, in the main, locally hired, and trained; it also
establishes that employee turnover has been a persistent firm problem. Throughout
its first year of operation the Respondent demonstrated its anxiety to retain passably
efficient employees. Sound business practices in the face of a threatening need to
cut back production, therefore, would inevitably suggest a limited staff reduction-
whether purposive or otherwise-closely related in time to an actual decline in cur-
rent orders. And this essentially, appears to have been the Respondent's program,
however poorly realized.
The Respondent, in short-as of the outset of the year-may legitimately have
anticipated a possible future need to reduce personnel. I am satisfied, however, that,
in the main, it has been able to forestall a calculated staff reduction-exclusive of
the third-shift layoff noted in midsummer. And, in context, the separations chal-
lenged as discriminatory in this case may clearly be characterized, therefore, as a
deviation from the essentially laissez faire personnel policy which the Respondent
seems to have followed for the first 6 months of the current year.
The weakness of the Respondent's argument, under the circumstances, is patent.
And its very weakness, logically, tends to fortify the inference-otherwise derivable
from the record as a whole-that the Union interest of Dr. Birdsall, Kapics, and
Vierra was known to the mill management, and that these employees were selected
by the firm's plant superintendent for termination on the basis of their demonstrated
interest in self-organizaion.
In the final analysis, the record reveals a situation in which no single fact may be
taken as conclusive in disposing of the questions posed by the evidence as to the
Respondent's knowledge in the premises and its motivation in connection with the
discharges; it is clear, however, that the totality of the facts adduced, when evaluated
in the light of the Respondent's inability to present a persuasive rebuttal, will warrant
a conclusion that the General Counsel, in the main, has established his case. Cf.,
N. L. R. B. v. Link-Belt Company, 311 U. S. 584, 588. And I so find. Much of
the evidence relied upon to sustain this conclusion with respect to the termination
of Dr. Birdsall, Kapics and Vierra may also be characterized, justifiably, as sufficient
to raise some doubt with respect to the Respondent's explanation for Schindler's
termination. In the light of the record as a whole, however, I find myself constrained
23 If, in fact, the Respondent was interested in the improvement of its staff, what
exigency can be relied upon to explain the reemployment of Eleanor Yeager-presumably
as a drawing frame tender-2 months after her discharge for drunkenness? And what
explanation can be offered for the firm's retention of Louise Davis as a winder tender,
despite her apparent lack of versatility, if Vierra's demonstrated inability to serve in a
dual capacity is to be considered sufficient to warrant her dismissal?
CALIFORNIA TEXTILE MILLS 1271
to conclude that the suspicion engendered with respect to the Respondent's motiva-
tion, in Schindler's case, does not rise to the level of reliable, probative, and substan-
tial evidence . Schindler's termination may not have been motivated, exclusively, by
business considerations. In the absence of evidence sufficient to warrant a sound
inference that the mill management knew of his interest in unionization, however,
it cannot be said that a preponderance of the evidence establishes his termination
for a reason statutorily proscribed. In the light, then, of the demonstrated inade-
quacy of the explanation proffered by the Respondent to justify the discharges now
under consideration, and in the light of the persuasive evidence provided with respect
to the apprehension attributable to the mill management in regard to the possibility
of unionization, a conclusion clearly seems to be warranted that Dr. Birdsall, Kapics,
and Vierra were, actually, terminated because of their interest in the Union and
their activity in its behalf.
A failure of belief, of course, with respect to the asserted reason advanced by an
employer to justify discharge action, will not, standing alone, establish the existence
of a proscribed motivation. The burden always remains on the General Counsel
to establish the existence of a discriminatory motive, and not on the Respondent
to disprove it. Here, however, the General Counsel has clearly met that burden.
In N. L. R. B. v.-May Department Stores Company, 154 F. 2d 533, 538 (C. A. 8),
reference is made to:
. the broad scope of inference open to the Board on questions of motive
and discrimination, where the evidence indicates a desire to thwart or nullify
unionizing efforts, either generally or as to a particular employee-organization.
And when an employer has demonstrated, clearly, its concern with respect to union-
ization of the employees, as here, a very convincing case of discharge for cause
must be made to render unreasonable a conclusion that discharges have been effec-
tuated because of the dischargees' union affiliations. Dannen Grain and Milling
Company v. N. L. R. B., 130 F. 2d 321, 328 (C. A. 8). This burden of counter-
persuasion , I find, the Respondent has failed to meet.
Even in the light of an assumption, for the sake of argument, that the discharges
in question did, in fact, involve the least efficient and adaptable mill employees-
as the Respondent seems to contend-a conclusion that the action of Plant Super-
intendent Armstrong did not violate the-statute, would not be warranted as a matter
of law. It is well settled, now, that an employer commits an unfair labor practice
under Section 8 (a) (3) of the Act by the discharge of an inefficient employee, if
his reason for action is not the employee's inefficiency, but his union affiliation or
activity. N. L. R. B. v. L. Ronney & Sons Furniture Manufacturing Co., 206 F. 2d
730 (C. A. 9), and the cases therein cited; see also Wells, Incorporated v. N. L. R. B.,
162 F. 2d 457 (C. A. 9). The critical question, in short, is the employer's true
motive-and the existence of some justifiable ground for discharge is no defense
if it was not in fact the moving cause. In this case Armstrong's action-realistically
appraised-clearly seems to have been motivated by the demonstrated interest of
the dischargees in unionization.
The dismissal of several active union adherents, under circumstances which per-
suasively suggest no motivation other than hostility to the union , is reasonably cal-
culated to apprise all the employes of the dangers attached to union adherence,
despite an employer's apparent willingness to retain other union supporters as em-
ployees. That such action on the part of employers operates, generally, to discourage
union membership and activity (even if it is not all inclusive) cannot now be denied.
The action attributable to the Respondent in this case, therefore, can only be charac-
terized, legitimately, as discrimination reasonably calculated to discourage member-
ship in the Union herein.
B. Interference, restraint, and coercion
1. The issue
In connection with his contention that the Respondent-by and through its officers,
agents, or representatives-has interfered with, restrained, and coerced its employees
in the exercise of rights statutorily guaranteed, the General Counsel relies largely
upon evidence with respect to- the activities attributable to the firm's shift foreman.
Specifically, the General Counsel alleges in the complaint that:
On or about February 24 and 25, 1957, Eugene Wheat and Harley Stephenson,
employees of Respondent and supervisors within the meaning of the Act, inter-
rogated certain employees with respect to their own and other employees' union
membership, activities, and sympathies, and attempted to place under sur-
veillance, and engaged in surveillance of, a meeting of employees called for
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the purpose of joining .the Union or other concerted activity for the purposes
of collective bargaining or other mutual aid or protection.
With respect to this allegation, it is the Respondent's first contention that its shift
foremen are "little more" than working foremen, and that they should not be con-
sidered supervisors within the statutory definition. In regard to the merits of the
allegation, it is argued that Wheat and Stephenson acted in ignorance, and that,
in fact, they learned nothing. It is these contentions which pose the sharpest issue
for determination.
2. The supervisory status of shift foremen
In the light of the available evidence, an inference with respect to the supervisory
status of the Respondent's shift foremen would seem to be inescapable. President
Touton, in an affidavit submitted to the Regional Office of the Board while the
charges in this case were under investigation, reported that:
Mr. Greer Armstrong is Plant Superintendent, and Mr. Wheat and
Mr. Stephenson are Plant Foremen. All of the above personnel have the right
to hire and fire. Mr. Armstrong generally does most of the hiring, while
Mr. Wheat and Mrs. Stephenson usually make the recommendations as to dis-
charge of employees on their particular shifts... .
Subsequently, as a witness, the Respondent's president acknowledged the affidavit,
and characterized the descriptive language quoted as "true in the extreme"; he in-
sisted, however, that it was not accurate in "intent" or context.
Despite reflection, I confess my inability to understand this attempt by the Re-
spondent's president to qualify the forthright language of his affidavit. Neverthe-
less-and without regard to the comprehensibility of the testimony under consid-
eration-I find it worthy of note that the Respondent made no real effort to adduce
independent evidence with a tendency to vitiate the inference legitimately to be drawn
from President Touton's early statement.24 And Wheat's testimony, in this respect,
would seem to be more than sufficient to establish that Touton's initial affidavit with
respect to the status of the shift foremen was accurate. The shift foreman testified,
credibly, That he is in charge of the entire mill on the second shift; that he operates
no machines, but sees that they are run properly; that he possesses the authority
to grant employees time off and to transfer them at work; that he recommends
people for layoff, although he is not required to participate directly in any resultant
separation; and that he is authorized to make effective recommendations with respect
to merit increases for employees.
Finally, a reference to President Touton's testimony as a witness for the
Respondent will indicate his concession that Wheat and Stephenson are "in charge"
of telling the people on their shifts what to do; that they are required to "see" that
the employees keep busy; and that, if necessary, they have the authority to "let
somebody loose" as an employee, subject to Superintendent Armstrong's right of
review.
Upon the entire record, thus exemplified, I find that Wheat and Stephenson were,
at all material times, supervisors in the statutory sense. See Section 2 (11) of the
Act, as amended. And the Respondent, I find, cannot escape responsibility for
their conduct and its reasonably foreseeable consequences.
3. Attempted surveillance
The facts found elsewhere in this Report, with respect to the course of conduct
attributable to shift Foreman Wheat and his associate on February 24, 1957, need
not be recapitulated. In the language of the complaint, the interrogation of
employee Cossey with respect to his own union "membership, activity, and sym-
pathy" and that of other employees, is established. Nor is it disputed by the firm
that Wheat and Stephenson went to Lemoore, initially, to "attend" the union
meeting. Their frustration in the pursuit of this objective is, of course, immaterial.
In the course of their interrogation of Cossey, the intention they shared was fully
disclosed. And its very disclosure-under established decisional doctrine-consti-
24 Shift Foreman Stephenson did testify , in direct examination , that be spends some time
assisting the workers on his shift in the routine of their work, and that he has no authority
to hire and fire, but his testimony also shows that, he spends time in the card room
"seeing that things are straight" and that he watches production "pretty closely" to see
that the material is "run" properly . As a witness he has conceded , also, that he is re-
quired to "see" that a reasonable amount of material is run , and to watch the machinery
to see that it is not mistreated . These responsibilities are clearly supervisory in character.
CALIFORNIA TEXTILE MILLS 1273
tuted an act of interference with employee rights statutorily guaranteed, reason-
ably calculated to restrain and coerce employees interested in the exercise of the
rights in question. Additionally, of course, Wheat's attempt to solicit the coopera-
tion of Cossey as an informer, at the conclusion of the conversation, also warrants
characterization as coercive.
4. The interrogation of Kapics
With respect to the interrogation of Kapics, the Respondent argues, principally,
the absence of any intent on the part of President Touton to restrain or coerce the
parolee, and the absence of any attempt to solicit revelation with respect to the
names of the other employees interested in unionization. This agency is also re-
quested, however, to consider the advice given Kapics with respect to his right,
as a citizen, to do whatever he wanted to do, in connection with the Union's
organizational effort.
The Board, of course, no longer considers it unlawful, per se, for an employer
to interrogate his employees with respect to their union activities and sympathy.
Blue Flash Express, Inc., 109 NLRB 591, 593. Its decisional doctrine in this
connection, however, has never been interpreted as a pronouncement that interro-
gation generally and regardless of attendant circumstances, will no longer be con-
sidered violative of the statute. In a context of other employer unfair labor
practices, or demonstrated hostility to unionization, interrogation may still be cate-
gorized as an unfair labor practice. In defining the limits of its determination in
the Blue Flash case, however, the Board majority went on to observe that:
... we are not holding in this decision that interrogation must be accom-
panied by other unfair labor practices before it can violate the Act. We are
merely holding that interrogation of employees by an employer as to such
matters as their union membership or union activities, which, when viewed
in the context in which the interrogation occurred, falls short of interference
or coercion,-is not unlawful... .
The Board's decision goes on to point out that any employer engaged in interrogation
will now do so with notice that he has risked an unfair labor practice determination,
if the circumstances, generally, are such that his interrogation may be held to
restrain or interfere with employee rights statutorily guaranteed.
In this case it is clear that the interrogation of Kapics by Touton took place in a
context of other unfair labor practices. And even in the absence of any reference
by Touton to his awareness, if any, with respect to the antecedent activity of his
shift foremen and Dr. Birdsall's discharge, Kapics could not reasonably be expected
to dissociate the president's course of conduct from that attributable to his subordi-
nates. Touton's attempt to assure Kapics, after the event, that he would not be
subject to reprisal because of his responses, cannot realistically be viewed, in my
opinion, as an effective minimization of the coercive thrust implicit in the ante-
cedent interrogation. Regardless of such assurances, interrogation which occurs
in a context of other unfair labor practices and forms an integral part of a pattern
is to be considered violative of Section 8 (a) (1) of the statute. American Furni-
ture Company, Inc., 118 NLRB 1139.
5. The solicitation of Cossey
The evidence establishes , finally the attempt of Shift Foreman Wheat-on March
7, 1957, approximately-to enlist the assistance of Cossey , again , as an informer.
In its brief the Respondent minimizes the significance of Cossey 's testimony in this
connection but no - attempt has been made to controvert it. The coercive thrust
of the request , under all the circumstances , requires no explication.
6. Defenses
The testimony of President Touton, taken at face value, would indicate that
the Respondent's managerial hierarchy was advised, several times after November
1956, at least, to abstain from interfering with unionization. And, in the absence
of evidence to the contrary, no justification for the rejection of this testimony is
to be gleaned from the record. In the light of the totality of the available evidence,
however, it is clear that the indicated "informal instruction" was given-prior to
the inception of the Union's organizational campaign-solely on the basis of an
anticipated "probability" that the employees might unionize. And some significance,
certainly, may be attached to the fact that the advice in question does not appear
to have been reiterated at the weekly management conference immediately subse-
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quent to the initial union meeting. The testimony of President Touton is silent in
this connection; we are entitled to assume that a neutrality instruction, given at the
time, would have been reported. In any event, the Respondent appears to have
made no effort to apprise its mill employees of the firm's official neutrality with
respect to their attempt to achieve self-organization. And the activity attributed
to Plant Superintendent Armstrong and Shift Foreman Wheat herein would, clearly,
warrant an inference that President Touton's alleged desire to avoid a commitment
on the part of the Respondent subject to characterization as an unfair labor &actice
was disregarded, in fact, when the union campaign actually began. The Respondent
having been effectively compromised, as a result, cannot escape responsibility by
the citation of President Touton's generalized intention, before the event, to act
within the law.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities attributable to the Respondent set forth in section III, above, since
they occurred in connection with its operations as described in section I, above,
have a close, intimate, and substantial relationship 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 engaged in 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 statute.
Specifically, since it has been found that officers, agents, and representatives of
the Respondent have interfered with, restrained, and coerced its employees by
interrogation with respect to their union membership, activities, and sympathy,
and by attempts to engage in surveillance of union activity, it will be recommended
that the Respondent cease and desist from such conduct, and that it post notices
declarative of its intention to do so.
It has been found, additionally, that the Respondent did discriminatorily discharge
E. Ray Birdsall and Andrew J. Kapics on the dates indicated elsewhere in this
Report, that it did terminate the employment of Linda Rose Vierra, and that
it has since failed and refused to reemploy each of the designated employees, because
of their union membership and activity, and because of their participation in a
concerted activity with other employees for the purpose of collective bargaining
and other mutual aid or protection. A recommendation will be made, therefore,
that the Respondent offer Dr. Birdsall, Kapics, and Vierra immediate and full
reinstatement to their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges previously enjoyed. See The Chase
National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB
827, 828-829, for a definition of the phrase "former or substantially equivalent
position" as here used. It will also be recommended that the Respondent make
each of these employees whole for any loss of pay or other incidents of the employ-
ment relationship which they may have suffered by reason of the discrimination
practiced against them, by the payment to each of them of a sum of money equal
to the amount which they normally would have earned as wages between the dates
of their termination and the date of the reinstatement offers herein recommended,
less the net earnings of each, if any, during that period. Cf. Crossett Lumber Com-
pany, 8 NLRB 440, 497-498; Republic Steel Corp. v. N. L. R. B., 311 U. S. 7.
Each employee's losses should be computed on a quarterly basis, in the manner
customarily prescribed by this Agency. See F. W. Woolworth Company, 90 NLRB
289, 291-294; N. L. R. B. v. Seven-Up Bottling Company of Miami, Inc., 344 U. S.
344. In order to assure expeditious compliance with these recommendations in
regard to back pay and reinstatement, it shall be recommended, finally, that the
Respondent, upon request, make available to the Board and its agents, all pertinent
records.
Since it has been found that the course of conduct attributable to the Respondent
as a matter of law was reasonably calculated to interfere with, restrain, and coerce
its employees in the exercise of rights statutorily guaranteed, and particularly since
the discharges found to be discriminatory herein "go to the very heart of the Act"
and indicate a purpose to defeat employees' self-organization, I find that the unfair
labor practices committed are closely related to other unfair labor practices statutorily
proscribed, and that a danger of their commission in the future is to be anticipated
from the Respondent's conduct in the past. In order, therefore, to make effective
the interdependent guarantees of Section 7 of the Act, as amended, to prevent
CALIFORNIA TEXTILE MILLS 1275
a recurrence of unfair labor practices, to minimize industrial strife which would
tend to burden and obstruct commerce, and thus to effectuate the policies of the
statute, it will be recommended that the Respondent cease and desist from infringe=
ment , in any manner, upon the rights of employees guaranteed under Section 7 of
the Act, as amended.
CONCLUSIONS OF LAW
In the light of the foregoing findings of fact, and upon the entire record in the
case, I have reached the following conclusions of law:
1. The Respondent, California Textile Mills, is an employer engaged in commerce
and business activities which affect commerce, within the meaning of Section 2 (6)
and (7) of the Act, as amended.
2. The Union, Bay Area Joint Board of Textile Workers of America, AFL-CIO,
is a labor organization within the meaning of Section 2 (5) of the Act, as amended,
which admits employees of the Respondent to membership.
3. By discrimination with respect to the hire and employment tenure of certain
of its employees, reasonably calculated to discourage membership in a labor
organization, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) and (3) of the Act, as amended.
4. By its additional interference with, restraint, and coercion of employees in
the exercise of rights guaranteed under Section 7 of the Act, as amended, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act, as amended.
5. The aforesaid unfair labor practices are unfair Tabor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act, as amended.
6. The Respondent has not, by its discharge or layoff of Fred Schindler on
March 5, 1957, and its subsequent failure or refusal to reemploy him, discriminated
against him because of his union membership or activity, or because of his partici-
pation in a concerted activity with other employees for the purpose of collective
bargaining and other mutual aid or protection, to discourage membership in a
labor organization. The Respondent therefore has not, by its course of conduct in
this respect, engaged in unfair labor practices within the meaning of Section 8 (a)
(I) and (3) of the Act, as amended.
[Recommendations omitted from publication.]
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in Bay Area Joint Board of Textile
Workers of America, AFL-CIO, or any other labor organization, by discharging
or refusing to reinstate any of our employees, or by discriminating in any other
manner in regard to their hire or tenure of employment, or any term or condition
of their employment.
WE WILL NOT, in any other manner, interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor or-
ganizations, to join or assist Bay Area Joint Board of Textile Workers of Amer-
ica, AFL-CIO, or any other labor organization, to bargain collectively through
representatives of their own free choice, or to engage in other concerted activities
for the purpose of collective bargaining and other mutual aid or protection, or
to refrain from any or all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8 (a) (3) of the National
Labor Relations Act, as amended.
WE WILL offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges previously enjoyed, and we will make
them whole for any loss of pay or other incidents of the employment relationship
which they may have suffered as a result of the discrimination practiced against
them.
E. Ray Birdsall
Andrew J. Kapics
Linda Rose Vierra
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All of our employees are free to become or remain members of any labor organiza-
tion, except to the extent that this right may be affected by an agreement in conformity
with Section 8 (a) (3) of the Act, as amended . We will not discriminate against any
employee in regard to hire or tenure of employment , or any term or condition of em-
ployment , because of membership in or activity on behalf of any such labor
organization.
CALIFORNIA TEXTILE MILLS,
Employer.
Dated----------------- -- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered, defaced , or covered by any other material.
The American Brass Company and Local Union 11 , International
Brotherhood of Electrical Workers, AFL-CIO; United Steel-
Workers of America , AFL-CIO; International Union of Mine,
,Mill and Smelter Workers ; Metal Trades Council of Southern
California and its affiliated Local and International Unions,
AFL-CIO; and International Union , United Automobile, Air-
craft and Agricultural Implement Workers of America, UAW
AFL-CIO, Petitioners. Cases Nos. 21-RC-5091,. $1-RC-5101,
21-RC-5109, 21-RC-5113, and 21-RC-512. June 3, 1958
DECISION, ORDER, AND DIRECTION OF ELECTIONS
Upon separate petitions duly filed under Section 9 (c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
Paul J. Driscoll, hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Jenkins, and
Fanning].
We deny the Employer's request for oral argument because we be-
lieve that the positions of the parties are adequately set forth in the
record and the briefs.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The employees here sought are employed at a new plant of the
Employer at Paramount, California. Copper and copper alloy prod-
ucts are manufactured and fabricated at this plant. The production
120 NLRB No. 165.