Blue Bell-Globe Manufacturing Co.

National Labor Relations Board - Board Decisions

May 29, 1940

24 N.L.R.B. 126 (N.L.R.B. 1940)

In the Matter of BLUE BELL-GLOBE MANUFACTURING COMPANY and
AMALGAMATED CLOTHING WORKERS OF AMERICA
Case No. C-145-5.-Decided May 29, 1940
Overall Manufacturing Industry-Interference, Restraint, and Coercion: anti-
union statements ; offer of promotion to union leader for desisting from union
activity, coupled with warning of discrimination for refusal to do so ; char-
acterization of union as motivated solely by a desire for dues; warnings against
union activity delivered under pretext that recipients had violated rule against
solicitation during working hours ; speech to employees containing implication
that employees in another plant operated by respondent had suffered economic
detriment from unionization ; speeches and notices stating that employees did
not have to join union to keep job, construed as; charges of surveillance of
union meeting dismissed ; finding of Trial Examiner that lay-offs of one em-
ployee constituted (not charged in complaint), not sustained on merits-Dis-
crimination: discharge of employee because of union membership and activity-
Reinstatement Ordered: of employee discharged-Back Pay: awarded.
Mr. Charles Y. Latimer, for the Board.
Woodward,' Dawson and Hobson, by Mr. Charles I. Dawson, of
Louisville, Ky., and Mr. Norman A. Boren, of Greensboro, N. C., for
the respondent.
Mr. Bernard Borah, of Atlanta, Ga., for the Union.
Mr. Bonnell Phillips, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF TIIE CASE
Upon charges .duly filed by Amalgamated Clothing Workers of
America, herein called the Union, the National Labor Relations
Board, herein called the Board, by the Acting Regional Director for
the'Fifth Region (Baltimore, Maryland), issued its complaint dated
July 18; 1939, against Blue Bell-Globe Manufacturing Company,
Greensboro, North Carolina, herein called the respondent, alleging
that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce, within the meaning of. Section 8
(1) and (3) and Section 2 (6) and (7) of the National Labor Rela-
tions Act, 49 Stat. 449, herein called the Act. Copies of the com-
24 N. L. R. B., No. 3.
126
BLUE BELL-GLOBE MANUFACTURING COMPANY 127
plaint, accompanied by notice of hearing, were duly served upon the
respondent and the Union.
With respect to the unfair labor practices, the complaint alleged
in substance (1) that the respondent on or about February 23, 1939,
discharged V. T. Kivett,' an employee, for the reason-that he had
joined the Union and had engaged in concerted activities for the
purpose of collective bargaining and other mutual aid and protec-
tion; and (2) that the respondent by the above act, by offering
promotion to V. T. Kivett if he would withdraw from activity in
connection with the union campaign, by advising and warning em-
ployees not to become members of or to remain active in the Union,
by keeping a union meeting and meeting place under surveillance,
and by various other acts interfered with, restrained, and coerced em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act.
On July 26, 1939, the respondent filed a'special appearance moving
that the complaint be dismissed for want of jurisdiction on the
ground that it was not engaged in commerce within the meaning of
the Act. On the same date the respondent filed an answer to the
complaint, preserving its motion to dismiss for lack of jurisdiction,
and denying that it had engaged in the alleged unfair labor practices.
Pursuant to notice, a hearing was held at Greensboro, North Caro-
lina, on September 11 and 12, 1939, before P. H. McNally, the Trial
Examiner duly designated by the Board. The Board, the Union,
and the respondent were represented by counsel and participated in
the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses and to introduce evidence bearing on the issues
was afforded all parties.
At the commencement of the hearing, the respondent renewed its
motion to dismiss the complaint for want of jurisdiction. The Trial
Examiner reserved ruling on this motion. During the course of the
hearing rulings were made by the Trial Examiner on other motions
and objections to the admission of evidence. The Board has reviewed
these rulings and finds that no prejudicial errors were committed.
The rulings are hereby, affirmed.
On September 14, 1939, subsequent to the hearing, the respondent
filed two motions, one for dismissal of the complaint on the ground
that the evidence produced at the hearing failed to show that the
respondent had engaged in any unfair labor practices, the other to
strike from the record testimony of Oneta Dean concerning three lay-
offs she suffered while in the respondent's employ, on the grounds
that such testimony was immaterial; and that the Board, not having
1 Incorrectly designated: in the complaint as V. T. Kivette. The complaint was amended
at the hearing to show correct spelling.
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charged that such lay-offs constituted unfair labor practices, is pre-
cluded from making any finding of fact or order against the respond-
ent in respect to the lay-offs.
Rulings denying these motions and the motion to dismiss the com-
plaint for want of jurisdiction were thereafter made by the Trial
Examiner in his Intermediate Report, filed December 29, 1939, copies
of which were duly served upon the parties. In his Intermediate
Report the Trial Examiner found that the respondent had engaged
in unfair labor practices affecting commerce within the meaning of
Section 8 (1) and (3) and Section 2 (6) and (7) of the Act, and
recommended that the respondent cease and desist therefrom and,
affirmatively, offer full reinstatement with back pay to V. T. Kivett,
and make whole Oneta Dean for any loss of pay she suffered by rea-
son of two discriminatory lay-offs. The Trial Examiner further
found that the evidence adduced was insufficient to support the alle-
gation of the complaint that the respondent had kept a union meet-
ing and meeting place under surveillance, and accordingly recom-
mended that the allegations of the complant in this respect be
dismissed.
Thereafter the respondent filed exceptions to the Intermediate Re-
port. For the reasons set forth below we sustain the. exceptions to
the finding of the Trial Examiner that the respondent twice laid off
Oneta Dean in violation of the Act. The Board has considered all
other exceptions to the Intermediate Report and, in so far as they
are inconsistent with the findings, conclusions, and order set forth
below, finds no merit in them.
At the hearing the Trial Examiner advised the parties that they
had the right to apply for oral argument before the Board and to file
briefs. Thereafter the respondent filed a brief which the Board has
considered. None of the parties applied for oral argument.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Blue Bell-Globe Manufacturing Company, a North Carolina cor-
poration with its principal offices in Greensboro, North Carolina,
owns and operates five plants, one in Greensboro, others in Commerce,
Georgia; Middlesboro, Kentucky; Columbia City, Indiana; and
Abingdon, Illinois. The respondent maintains sales offices in Chi-
cago, Illinois, and New York City. At the Greensboro plant, with
which this proceeding is concerned, the respondent engages in the
manufacture of overalls and jackets. The principal raw materials
used by the respondent in its manufacturing operations at this plant
BLUE BELL-GLOBE MANUFACTURING COMPANY 129
are cotton cloth and hardware, approximately 10 per cent of which
are secured by the Company from points outside the State of North
Carolina. The annual gross revenue of the Greensboro plant approx-
imates $3,000,000, of which over 50 per cent is derived from sales to
points outside of North Carolina. The respondent employs approxi-
mately 1,200 employees at its Greensboro plant.
II. THE ORGANIZATION INVOLVED
Amalgamated Clothing Workers of America is a labor organi-
zation affiliated with the Congress of Industrial Organizations. It
admits to membership employees in the men's suit and work clothing
industries.
III. THE UNFAIR LABOR PRACTICES
A. Background
The first organizational activity at the respondent's Greensboro
plant was begun by Virgil T. Kivett, an employee in the respondent's
cutting-room department, in the latter part of June 1937. By June
25 Kivett had solicited and obtained applications for membership
in the Union from all but 3 of the approximately 28 employees in
his department, and had distributed union applications blanks in
other departments throughout the plant. Shortly thereafter, union
organizers appeared in Greensboro and continued, during the sum-
mer of 1937, the membership drive begun by Kivett. In the fall of
that year, the respondent's plant was reduced to a part-time schedule
which remained in effect until 1938. During this slack period the
Union withdrew its representatives, and Kivett became, irrthe absence
of formal establishment of a local branch of the Union, president
of the union movement within the plant.2 In this capacity, accord-
ing to the testimony of the Union's regional director, Kivett was
primarily responsible for "holding things together" until the Union
reopened its drive in the summer of 1938, at which time union head-
quarters were established near the plant. Vigorous organizational
endeavors were not, however, apparently begun until after January
20, 1939. On that date the employees of the respondent's Middles-
boro, Kentucky, plant designated the Union as their representative
for collective bargaining purposes by a majority of•those voting in
a consent election. Following this victory a number of union repre-
sentatives were sent from Middlesboro to Greensboro, and the Union
began on or about February 10, 1939, an intensive organizational
9 The Union's regional director testified that "he (Kivett) was president of the
organization in the plant." Since no charter had been issued, "we simply formed among
our members and elected a temporary president to preside at the meeting and to help
conduct the organization work."
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
campaign in prepartion for an election among Greensboro employees.
This campaign, as hereinafter detailed, incurred the immediate and
sustained opposition of the respondent.
B. Interference, .restraint, and coercion
The respondent became aware of the Union's organizational activi-
ties and of Kivett's leadership therein almost at the outset of the
Union's 1937 drive. Kivett testified that his foreman, Overman,
approached him in the latter part of July 1937, with the statement
that he wished to speak to Kivett about the Union. After a pre-
liminary discussion of its merits, Overman informed Kivett that "the
company [respondent] is not going to recognize any union . . . and
I don't want to see you get mixed up in this thing." Kivett was
further warned that "these people will come in here, more or less,
and stir up trouble and get your money and then they are gone.
Then the company will get rid of all of you who fool with that mess."
Overman, according to Kivett's further testimony, characterized the
union movement as "Communistic," and as having had its origin in
Russia. In conclusion, Kivett was told, "You have been a good
worker, I think a lot of you, I would hate to see you boys lose out
for anything like that." .
Kivett testified that Overman again approached him about Sep-
tember 1937, with the statement that "It seems like you are dissatis-
fied with the work here at the plant." Kivett denied being "particu-
larly dissatisfied," whereupon Overman said, "Well, it seems that
something is wrong, is there another job you would like to have,
any other job in the plant; I don't want to see people dissatisfied,
I want people satisfied." During the conversation Kivett further
testified that Overman stated to him that the respondent "does not
have to fire you for being connected with the Union, they can find
a dozen different ways to get rid of you, and, if I were you, I would
get out of this thing."
Kisel Sharpe, a union member employed by the respondent during
1937, testified that Overman promised him a promotion, on request,
from assembler to cutter 3 if he would "work for the Company, not
for the outside stuff," and further advised him that "if you don't,
you know we can make it hard for you."
Overman denied all the foregoing statements attributed to him
by Kivett and Sharpe. The Trial Examiner, who observed the de-
meanor,of the witnesses at the hearing, refused to credit Overman's
. ' Cutters operate electrically driven vertical knives used to cut overall parts from 1.00
thicknesses of denim cloth spread upon large tables in the respondent 's cutting-room
department. Assemblers collect; sort , and tie into bundles various individual parts
taken from the cutting tables. -
BLUE BELL-GLOBE MANUFACTURING COMPANY 131
denials. On the basis of the Trial Examiner's finding, and in con-
sideration of certain other testimony by Overman, which we herein
find to have been in some respects self-contradictory,' we find that
Overman made, in substance, the statements set forth above. We
are of the opinion and find that Overman's conversation with Kivett
in September 1937, and his statements to Sharpe, can only be inter-
preted as offers to them of promotions if they desisted.from active
participation in the Union's organizational endeavors, coupled with
warnings of discrimination in respect to their tenures of employment
if they refused to do so.
The respondent's plant manager,' Weant, testified that he had
informed all foremen that the respondent would not discriminate
between union and non-union members, and had instructed them
"not to interest themselves in finding out who were members and
who were not." The record, however, does not disclose the date
upon which it is claimed such instructions were issued. Even as-
suming that Overman had received Weant's instructions prior to
making the patently coercive statements above detailed, we find that
the actions of Overman, a supervisory 'official with authority to
hire and discharge, are attributable to the respondent,6 especially
in view of the findings below that Overman continued his anti-
union campaign at a later date, and that Weant, far from making
effective his alleged instructions, himself interfered with, restrained,
and coerced the respondent's employees in the exercise of their rights
under the Act.
In the summer of 1938 Overman again threatened discrimination
against an employee for union membership and activity. Charles
May, .a cutter under Overman's supervision, testified that Overman
engaged him in a discussion, of unionism, and stated in conclusion :
"Just suppose this Union doesn't go"through, the Company [respond-
ent] doesn't have to fire you for belonging to it, they can have differ-
ent things they can fire you for.' Following this talk, May sought the
advice of the Union's regional director, asking in effect whether it
would not be expedient, 'in view of Overman's remarks, to relin-
quish his union affiliation. 'Both May and the union official testified
to this conference. We find that Overman made the statements
sub"staiiiially as. set forth above.
See Section III, D , infra.
° That Overman' was vested in some degree w ith authority to transfer and promote
employees in his department is apparent from the testimony of the respondent ' s plant
manager, Weant , who testified that he - did not "determine any policies ' in the plant on
promotions," that he "certainly did not talk with every employee that wants to be
changed to another job ," but that " it is entirely up to the foreman and the superintendent
to look after that."
° Swift & Co. V. National Labor Relations Board, 106 F. (2d) 87 (C. C. A. 10).
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As above stated, the union campaign had its birth and received
its strongest initial support among employees of the cutting depart-
ment under Overman's supervision. Thereafter the movement gained
adherents in other departments of the plant, and on or about Feb-
ruary 10, 1939, the Union entered "full force" into a drive to win
the membership of a majority of the respondent's employees in the
entire plant. For this purpose four members of the Union's Middles-
boro, Kentucky, branch were brought to Greensboro as witnesses
of the union victory at the Kentucky plant, and on February 15,
1939, a draft of a proposed contract submitted by the Union to the
respondent's Middlesboro officials was read to a gathering of the
Greensboro employees. .
On the following day, February 16, 1939, Kivett was summoned
to the office of Weant, plant manager, who stated, in substance, that
it had been reported to him that Kivett had been doing organiza-
tional work during working hours and had threatened various em-
ployees with physical violence if they refused to join the Union.
Kivett denied the charge and asked Weant to produce witnesses
of his alleged actions. This Weant refused to do, -but promised
Kivett that he would be able to produce witnesses "the next time
it happens". and that Kivett would then be discharged. Kivett fur-
ther testified that Weant, during this discussion, stated that "as long
as Blue Bell [the respondent] stays in business, we won't have to
send for any outsiders to run it for us"; and that "those_'people
will start trouble and they will damage property and stuff like that,
and strikes . . . that is how it will happen, there will be damage
to property by hoodlums and strikers." In conclusion, according
to Kivett, Weant promised that "as long as you stay in Blue Bell
we will pay you the best wages . . . and you don't need to
have any outsiders come in here."
Weant denied this testimony, specifically denying that he had
charged that "those people will start trouble" or that he had referred
to property damage by hoodlums and to the possibility of strikes.
Yet Weant, in the course of his testimony, admitted in answer to a
question by counsel for the respondent that he was "against the
C. I. O. organizing our plant .... because I have known the trouble
it has caused by organizing. Naturally we read the papers, we
heard of sit-down strikes and we heard the stories in Philadelphia
when the plants were destroyed." A comparison between this testi-
mony and the statements attributed to Weant by Kivett reveals a
striking similarity. The Trial Examiner credited Kivett's testimony
concerning his interview with Weant, and we find that Weant in
substance made the statements recited above. It is moreover appar-
ent that Weant was not, as he claimed, solely concerned in this inter-
BLUE BELL-GLOBE MANUFACTURING COMP ANY . 133
view with Kivett's alleged conduct within the plant, but was in actu-
ality seeking to discourage any organizational activity by Kivett on
behalf of the Union at a time when the. Union's campaign had reached
its height. This conclusion is compelled from an examination of
Weant's testimony concerning the alleged complaints against Kivett,
which, he stated, had been made to him by three employees, Allen,
Miles, and Freeman, about 2 weeks before his conference with Kivett.
Allen, however, testified that he had made complaint to Weant con-
cerning Kivett's actions in November 1938 ; Freeman testified to mak-
ing a similar complaint in January 1939; and Miles testified that he
had not reported an alleged threat by Kivett made in 1937 until 2
months before the hearing. We are satisfied and we find that
Weant's reprimand to Kivett on February 16, 1939, delivered a few
days after the Union had begun its reinforced membership drive,
was not in fact solely motivated by complaints received from Free-
man and Allen 1 month. and 3 months, respectively, before the event;
and could not, of course, have been occasioned by Miles' report in
July 1939. The'inference drawn from this finding, that Weant was
thereby interfering with and discouraging Kivett's union activity, is
strengthened by the testimony of other of the respondent's employees
who received warnings similar in tone from other of the respondent's
supervisory officials during the same period.
On or about February 22, 1939, Jennie Lefler, a union member, was
summoned to the office of R. W. Shaner, who, as plant superintend-
ent, was immediately subordinate to Weant. The interview which
ensued was based, according to Shaner, on a complaint by Lefler's
foreman, Coble, who had told him that she "had been running around
the building and talking during working hours" in defiance of his
repeated instructions; Lefler testified that she denied this charge to
Shaner who thereupon said, "Well, I am glad that you are not mixed
up in this thing inside the plant, you know we are not going to have
it, we are going to get rid of these people." Shaner denied this
testimony. We concur, however, in the Trial Examiner's finding re-
garding this testimony : "If Lefler, identified as an active union sup-
porter, was guilty of such flagrant insubordination to her foreman,
there is no stated explanation in the record why Coble did not dis-
cipline her, either by lay-off or discharge, which he had the power
to do, instead of sending her to Shaner. The denial by Shaner of
the above-quoted testimony of Lefler is not impressive under the cir-
cumstances." We find that Shaner made the statement attributed
to him by Lefler, thereby manifesting his opposition to the Union,
and threatening the discharge of employees who gave it assistance.
That the' acts and statements of Weant and Shaker were deliberate
interferences with their employees' right to self-organization is con-
283035-42-vol. 24--10
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
firmed by the undenied testimony of Anna Self, an employee and.
union member. On or about February 21, 1939, Self was ordered by
her foreman to report to Weant's office, and was given an allowed
time sheet so that she would not be penalized for the time lost.
Weant was absent when Self presented herself, but the respondent's
vice president and general manager, Walls, then in Weant's office,
stated, in response to a query by Self as to the reason for being sum-
moned, that "he understood that I (Self) was one of the number be-
ing misled by outsiders"; that he "thought it his duty to call some of
his people in to talk to them . . . and that he hated to see them being
misled by outsiders." Self admitted to Walls that she was a union
member, and Walls, in effect, warned her that the union would mulct
the employees of their dues and then disappear.7 In conclusion
Walls stated that Self was an intelligent woman and could think
things out for herself, but "not to worry about being called to the
office."
This testimony, which we find to be true, viewed in conjunction with
the actions of Weant and Shaner, reveals a studied attempt by the
respondent's hierarchy of supervisory officials to impede and discour-
age union organization and membership. Coincident with the above
detailed individual conferences were speeches by Weant to "repre-
sentative groups of our employees in every unit in the plant." Al-
though Weant testified, that such speeches were begun by hime in
January 1939, the first evidence of them in the record is found in the
testimony of an employee in the cutting department, who stated that
Weant, accompanied by Shaner, addressed some 20 employees in his
department during working hours on or about February 20, 1939.
On or about March 1, 1939, Weant spoke to another group of em-
ployees, including in their number Charles Routh. Weant prefaced
his remarks, according to the testimony of Routh, with the asser-
tion that "there had been talking over the plant that if you didn't
join the union, you would be discharged, and I want to say that you
will not be discharged if you don't sign a card." Weant informed the
employees, according to Routh, that "he was sure the Company could
do more for us than could any organization on the outside." Weant
then made reference to the Union's victory in the respondent's Mid-
dlesboro,K'entucky, plant, stating that "they (the Middlesboro em-
ployees) were Working as usual, except the last few weeks on short
time, since the election." We find.that Weant, while addressing a
group of the respondent's employees on or about March 1, 1940, made
in substance the statements quoted above. We have no doubt' that
4 See Matter of Yale C Towne Manufacturing Company and Amalgamated Association
of Iron,. Steel and Tin Workers of North America, Lodge 1674, 17 N. L. R. B. 666.
BLUE BELL-GLOBE MANUFACTURING COMPANY 135
these statements were designed to discourage the respondent's Greens-
boro employees from joining the Union. Besides making manifest
the. respondent's antagonism to the Union, we think it obvious that
they_ contained also an implicit warning against self-organization.
The statement by Weant, regardless of its truth, that work in the Mid-
dlesboro plant was proceeding "as usual, except the last few weeks on
short time, since the election," could only have been designed to im-
press upon the Greensboro employees not only that the respondent's
Middlesboro employees had received no benefits from self-organiza-
tion, but that they had in fact suffered economic detriment.
Following a number of talks by Weant to various groups of the
respondent's employees, the respondent finally, on June 22,1939, caused
notices to be posted throughout the plant codifying, according to
Weant, the substance of his previous speeches. Although the testi-
mony of Routh has shown that Weant, in one of these speeches, had
gone beyond the limits of the notices in a discouragement of union
activity, we will treat the other speeches by Weant and the subse-
quently posted notices as having had substantially the same content.
The notice read as follows :
Rumors have been circulated among our employees to the effect
that failure on your part to become a member of the union would
mean loss of employment in-this company. Such is definitely not
the case and the company again wishes clearly to state its position
on this matter and inform you of your rights.
There will not be any discrimination between those who are
not members of a union and those who are. Your position in this
company is secure so long as you obey plant rules and regulations.
Outside organizations will not determine whether you are or are
not to be employed in this plant. This company will not permit
loss of employment to any person who is not a member of an
outside organization.
Of the respondent's officials, Weant alone testified concerning the
alleged rumors referred to in the opening sentence 'of the notice. On
cross-examination Weant estimated that 20 or 30 employees had
reported the aforesaid rumors to him, but. he could recall the names
of but two, Allen and Freeman. As before stated, Allen testified.
that he had reported in November 1938 certain statements made to
him by Kivett. These included, according to Allen, a warning that
after the union became established in the plant non-members "would
have to pay a big sum of money to join or they would have no job."
Freeman, identified by Weant at one point in the hearing as an assist-
ant to the foreman in his,department with powers- comparable to a
floorman, testified that Kivett during the latter part of January twice
solicited his membership under threat of being "kicked out.", In
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
view of the negligible testimony adduced in proof that the aforesaid
rumors had been circulated, we find that the speeches of Weant and
the subsequently posted notices "informing" the employees "of their
rights" were gratuitous in nature, and coming, as they did, at a time
when the Union was first seeking to establish itself as an exclusive
bargaining agent, were coercive in intention and effect. We have
had occasion to consider a notice almost identical in purport to the
one here in issue in the Matter of Roberti Brothers, Inc. and Furni-
ture Workers Union, Local 1561.8 What we there said has equal
cogency here:
Consequently the gratuitous advice to employees not to "let
anybody tell you that your job here depends upon membership
in any union" can only be explained as a notice to employees
that under no circumstances would the respondent enter into a
closed-shop agreement with the Union, the only device whereby
the Union might effect the compulsion of employees to join the
Union. The respondent was clearly issuing an ultimatum with
respect to a term or condition of employment properly the sub-
ject of collective bargaining before. any request for a closed shop
had been made.
Were the Act to sanction such notice by the employer, he could
with equal impunity further forestall union organization by
announcing to his employees that under no circumstances would
he recognize seniority among his employees . . . that under no
circumstances would he consider a change in the hours of employ-
ment, that under no circumstances would he consider.any change
in any other term or condition of employment. In effect, at the
outset of union organization he,could discourage his employees
from becoming members by warning them that any possible ad-
vantage to be derived from such membership and from collective
bargaining was beyond their reach. We cannot permit the pur-
poses of the Act to be so flouted.
We find that the speeches of Weant and the notices posted by the
respondent had the purpose of anticipating and denying to employees
a possible advantage to be derived from collective bargaining nego-
tiations. It cannot, of course, be denied that they were motivated
by a hope that the respondent's employees would reject the Union,
8 8 N. L . R. B. 926 . The notice in that case read :
To the Employees :
There has been circulated information to the effect that you must join the Union
in order to keep your job. This is a false statement. It is not necessary to have a
union card to work here.
It is the policy of this firm not to encourage . or discourage membership in Labor
Unions. This is entirely for you to decide.
However , do not let anybody tell you that your job depends upon membership
in any Union. . .. .
BLUE BELL-GLOBE MANUFACTURING COMPANY 137
and could only have been understood by the employees as a manifesta-
tion of the respondent's desire that they refrain from organization.9
We find that the respondent by posting the said notices, and by
the aforesaid activities of Weant, Walls, Shaner, and Overman, has
interfered with, restrained, and coerced its employees in the exercise
of their rights to self-organization, to form, join, and assist labor
organizations, and to engage in concerted activities for the purpose
of collective bargaining and other mutual aid and protection as
guaranteed in Section 7 of the Act.
C. Other alleged acts of interference, restraint, and coercion
The complaint alleged. that the respondent, through Superintend-
ent Weant, kept a union meeting and meeting place under surveil-
lance, thereby interfering with, restraining, and coercing its
-employees in the exercise. of the rights guaranteed in Section 7 of
the Act. The Trial Examiner found that Weant's presence near a
union meeting was unrelated to the meeting and accidently coincided
with it, and recommended that the complaint in this respect be
dismissed. No exception was filed to this finding and recommenda-
tion Upon an examination of the record we find that it does not
support this allegation, and, accordingly, the allegation will be
dismissed.
The record shows that Oneta Dean, an active union. member, suf-
fered three lay-offs during the spring and summer of 1939. Dean's
foreman, Hemphill, ordered the first lay-off on March 7, 1939, for a
period of 3 days. Hemphill testified that this lay-off was ordered
because Dean had failed to produce the required number of work
units ;10 that he had on previous occasions frequently spoken to Dean
concerning her failure to achieve an average production standard;
and that she had often made the excuse of illness. Dean denied that
she had been laid off for slow work. The respondent, however, pro-
duced records, which were not disputed, that established that Dean
had consistently fallen between 17 and 20 per cent below the produc-
tion norm during the weeks immediately preceding her lay-off. The
Trial Examiner in his Intermediate Report considered the testimony
concerning this lay-off and found that the evidence failed to estab-
lish that the lay-off was discriminatory.
Cf. National Labor Relations Board v. Griswold Mfg . Co., 106 F. ( 2d) 713 (C. C. A. 3) :
"It is because of [Congress '] recognition that the employee is sensitive and responsive
to even the most subtle expression on the part of his employer , whose good will is
so necessary , that limitations have been placed upon the activities of the employer in
carrying out the principles of collective bargaining."
10 The respondent operates under a system of production commonly known as "the
Bedeaux . system," which requires an average hourly production of 60 "Bs" or work units.
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 12, 1939, Hemphill again, laid off Dean 'for a two-week
period. A nurse, maintained by the respondent, testified that Dean;
had made daily visits to the first-aid room in the respondent's plant
during the period preceding this lay-off, complaining of headaches
and illness. When Dean failed to respond to her ministrations, the
nurse finally recommended to Hemphill that Dean be laid off so that
"she could be given a chance to get herself in shape." On the
strength of this recommendation, Hemphill testified, Dean was laid
off for two weeks. While the duration of this lay-off may have been
somewhat long in view of the fact that Dean complained only of
suffering from headache, we do not consider Hemphill's action in
this regard as so arbitrary that an inference may be drawn that the
lay-off was influenced by Dean's union activities, although there is
evidence in the record to show that Dean had been previously warned
by Weant, in February 1939, against continuing such activities. In
the light of all the testimony, we, are unable to concur in the Trial
Examiner's finding that the lay-off on June 12, 1939, was made in
violation of the Act.
Dean was laid off for a third time by Hemphill.on July 17, 1939,
again for a two-week period. This action was taken without any
prior recommendation from the nurse, and under circumstances
which cast strong doubt on the respondent's motives. Nevertheless;
Dean's previous health record, combined with the fact that Dean had
apparently, although the record is not clear, been excused from work
on the previous working day because of ill health, give support to,
HemphilPs. claim that the lay-off was again occasioned by Dean's
illness: Following this lay-off Dean returned to work, and was at the,
time of the hearing in the respondent's employ. We do not find
that Dean's lay-off on July..17, 1939, was ordered in violation of
the Act.
D. The discriminatory discharge of Virgil T. Kivett
Virgil T. Kivett, the orginator and leader of the union movement
in the plant had been employed by the respondent for a period of ap-
proximately 13 years, when, on or about February 23, 1939,.he was dis-
charged by his foreman, Overman. Kivett's • union activity was well
known to the respondent. As found in Section III, B, above, Kivett
had on at least two occasions been warned against such activity by
Overman, and one week before his discharge had been reprimanded
by Weant in the interview therein described. It is significant that
Overman's warning had occurred shortly after the Union had received
its initial impetus from Kivett, and that Weant had delivered his
reprimand and warning to Kivett almost immediately following the
reinforced and greatly magnified union drive in 1939.
BLUE BELL-GLOBE MANUFACTURING COMPANY 139
On the day of his discharge Kivett ' and Howard Coble, a fellow
employee, ' were working at one of 'the tables in the respondent's
cutting-room department. Hunt, assistant foreman in that depart-
ment, reprimanded Coble for having "signed ahead" for work on
another table before he had completed his task at the table where
he and Kivett were working. The reprimand was delivered in the
presence of Kivett who was standing directly across the table from
Coble. Coble denied having violated the respondent's rule against
"signing ahead," whereupon Hunt, according to the testimony of
Kivett, said, while facing and looking directly at Kivett, "If you
idiots had sense enough to sign up for this work, we would get better
production." The use of the word "idiots" caused Kivett to take
exception to Hunt's remark, particularly because Kivett's first born
child had been afflicted with an injury at birth which had resulted
in idiocy. When Kivett objected to being called an idiot, Hunt
ordered him to "shut up, I am not talking to you, I am talking to
Coble." Kivett replied, "If you want to talk to Coble call him an
idiot, and not idiots." An argument then ensued between Hunt and
Kivett and as to whether the former used the term "idiots." Kivett
testified on direct examination that he had said to Hunt during the
course of the argument that if Hunt denied using the word "idiots"
he was a "damn liar." Hunt replied that he had not used the term,
and that if Kivett said that he had, Kivett was a "damn liar."
Whereupon Kivett, according to his own testimony, replied, as Hunt
was walking away, that "Ifyou (Hunt) deny it you are a goddam
liar." It is sighificaxlt that vneither' Coble nor Hunt, testified that
Kivett had made the last statement. We find, that Kivett in his
testimony gave a straight-forward and accurate narration of the facts
surrounding this incident. Coble testified that Hunt-had used the
term idiot, but was unable to say whether in the plural or singular.
Hunt denied using the word in any form, but in view of the foregoing
testimony we find that Hunt in fact used the term." In all other
respects the testimony of Kivett, Coble, and Hunt concerning this
incident is substantially similar. -
About 30 minutes later, according to Kivett, Overman summoned
him and asked what had happened. Kivett testified that he then told
Overman "word for word what had happened." At the end of
Kivett's narration Overman said, "All right, you are finished, punch
out and get out."
n A finding , to the contrary would leave unexplained the occasion for the controversy.
We are unable to accept the suggestion advanced by counsel for the respondent during
cross-examination that Kivett was attempting a form of self-immolation to get (himself)
fired or. suspended , so that ( lie) , could claim that as a Union man (he ) had. been dis-
criminated against."
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Overman testified that he had first learned of the incident from
Hunt, who had approached him after the argument with Kivett
with a request that he be excused from work for the remainder of
the day. When asked the reason for his request, Hunt attempted
to describe what had happened. That Overman had no clear picture
of what had occurred is apparent from the fact that he first sum-
moned Coble to him. Only upon being told by Hunt that "me and
Coble are straight, it is between me and Kivett," did Overman sum-
mon Kivett to him. As Kivett approached him, Overman testified,
"he (Kivett) seemed to be excited. more than I had ever seen him
before . . . He said `he (Hunt) has told you a, bunch of damn lies.'
I said, `Kivett, hush up,' and he kept coming to me." Overman
further testified that Kivett continued to curse for a period of two or
three minutes and after' being told 'again to "calm down" was finally
asked "Kivett aren't you going to hush?" When Kivett failed to
comply, Overman testified, he then discharged Kivett.
We are unable to credit Overman's version of his conversation
with Kivett. Overman at the hearing denied that he had asked
Kivett to relate what had occurred between him and Hunt, but on
cross-examination admitted that he had previously testified, in a North
Carolina unemployment compensation hearing, that he had summoned
Kivett and asked him to tell what had happened. Moreover, in view
of the fact that Overman did not have a clear understanding of the
dispute between Kivett and Hunt, it is reasonable to infer that Over-
man did, in fact, request that Kivett 'relate what had occurred.
Overman at first testified that he had discharged Kivett because he
had failed to comply with the order to "hush," but later added that
Kivett's disrespect and use of profanity to Hunt was a factor in
the discharge. Kivett's severance slip, however, made no mention
of insubordination, disrespect, or the like, but alleged that the reason
for his discharge was "disobedience."
In view of Overman's contradictory testimony, and in the light
of all the circumstances, we find that Kivett was discharged after
having told Overman, on request, the substance of the dispute between
him and Hunt. It is significant and must be understood that Hunt
had not appealed to Overman for disciplinary action, and had not,
reported the incident to Overman until questioned as to the reason
for his request for time off. Hunt, further testified that he was not
angry with Kivett after the dispute and that he was in fact a hunting
and fishing companion and close friend of Kivett's, with full knowl-
edge of the fact that Kivett had an idiot child, a knowledge which
Overman shared.
In view of Kivett's long and admittedly satisfactory service with
the respondent; in view of the insignificance of the altercation which
BLUE BELL-GLOBE MANUFACTURING COMPANY 141
is alleged to have been the basic cause of the discharge; and es-
pecially in view of the fact that the respondent's officials were pre-
occupied. at the time of Kivett's discharge with the resurgent union
movement, as found above ; we find, as did the Trial Examiner, that
the reasons alleged by Overman were not the actual factors in Kivett's
discharge, but served rather as pretexts for it. As found above,
Overman had twice warned Kivett of possible discrimination against
him if he persisted in his union membership and activity. We
find that Overman discharged Kivett because of such membership and
activity.
We find that the respondent, by discharging Virgil T. Kivett on
February 23, 1939, discriminated in regard to his hire and tenure
of employment, thereby discouraging membership in the.Union and
has thereby .interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
At the time of his discharge on February 23, 1939, Kivett was
earning a base rate of $2.80 a day. Kivett has been unemployed
since his discharge, and desires reinstatement.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III, B and D above, occurring in connection with the operations of
the respondent described in Section I above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor- disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we shall, therefore, order it to cease and desist there-
from and to take certain affirmative action designed to effectuate the
policies of the Act and to restore, as nearly as possible, the situa-
tion that existed prior to the commission of the unfair labor.
practices.
We have found that Virgil T. Kivett was discriminatorily dis-
charged. We shall, accordingly, order the respondent to offer him re-
instatement to his former or substantially equivalent position, with-
out prejudice to his seniority and other rights and privileges, and
to make him whole for any loss of pay he has suffered by reason
of his discharge, by payment to him of a sum equal to the amount
which he normally would have earned as wages from the date of
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his discharge to the date of the offer of reinstatement, less his net
earnings 12 during said period.
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Amalgamated Clothing Workers of America, affiliated with the
Congress of Industrial Organizations, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Virgil T. Kivett, thereby discouraging membership in the
Union, respondent has engaged and is engaging in unfair labor
practices within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (1) of`the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Blue Bell-Globe Manufacturing Company, its officers,
agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Amalgamated Clothing Workers
of America, affiliated with the Congress of Industrial Organizations,
or any other labor' organization of its employees, by discrimination in
regard to hire or tenure of employment or any term or condition of
employment ;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
. 12 By "net earnings" Is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-'
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company and United Brotkerhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies
received for work performed upon Federal, State, county, municipal, or other work-relief
projects are not considered as earnings, but as provided below in the Order, shall be
deducted from the sum due the employee, and the amount thereof shall be paid over to
the appropriate fiscal agency of the Federal, State, county, municipal, or other govern-
ment or governments which supplied the funds for said work-relief projects. Republic
Steel Corporation, et al. v. National Labor Relations Board, 107 F. (2d) 472 (C. C. A. 3).
BLUE BELL-GLOBE MANUFACTURING COMPANY 143
form, join, or assist labor' organizations, to bargain collectively
through representatives of their own choosing, and to engage in
.concerted activities for the purposes of collective bargaining and
other mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Virgil T. Kivett immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his
seniority and other rights and privileges;
(b) Make whole Virgil T. Kivett for any loss of pay he has suf-
fered by reason of the respondent's discrimination, by payment to him
of a sum of money equal to that which he would normally have
earned as wages from the date of his discharge to the date of offer of
reinstatement, less his net earnings during said period;. provided that
the respondent shall deduct from the back pay due him a sum equal to
that received by him for work done in Federal, State, county, munici-
pa^ or other work-relief project during the period for which back pay
is due him under this Order, and pay any such amount deducted to
the appropriate fiscal agency of the Federal, State,, county, municipal,
or other governments for such work-relief project;
(c) Post immediately in conspicuous places at its plant, and main-
tain for a period of at least sixty (60) consecutive days from the date
of posting, notices to its employees stating: (1) that the respondent,
will not engage in the conduct from which it is ordered to cease and
desist in paragraphs 1 (a) and (b) of this Order; (2) that the
respondent will take the affirmative action set forth in paragraphs 2
(a) and (b) of this Order; and (3) that-the respondent's employees
are free to become or to remain members of Amalgamated Clothing
Workers of America, and the respondent will not discriminate against
any employee, because of membership or activity in that organization;
(d) Notify the Regional, Director for the Fifth Region, in writing,
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed in so far as it alleges that the respondent engaged in an unfair
labor practice, within the meaning of Section 8 (1) of the Act, by
keeping a union meeting and meeting place under surveillance.