Borden Mills, Inc.,

National Labor Relations Board - Board Decisions

Jul 1, 1939

13 N.L.R.B. 459 (N.L.R.B. 1939)

In the Matter of BORDEN MILLS, INC., and TEXTILE WORKERS
ORGANIZING COMMITTEE
Cases Nos. C-76.3 and R-769.-Decided July 1, 1939
Cotton Textile Industry-Interference , Restraint , and Coercion : anti-union
statements made by supervisory employees-Company -Dominated Union: super-
visory employees made statements favoring and solicited members for inside
union ; respondent accorded further assistance to plant union by prompt recogni-
tion of it as exclusive collective bargaining agency, by agreeing to establish
check-off , and by agreeing to inform new employees of existence of "closed
shop"-Discrimination : discharge , to discourage membership in the Union and
because of union membership and activity ; charges of , dismissed as to one.
discharge resulting from insubordination-Unit Appropriate for Collective Bar-
gaining: production and maintenance employees , exclusive of clerical and super-
visory employees , overseers , second hands, sectionmen , fixers, and loom fixers-
Representatives : proof of choice : membership cards submitted by union failed
to prove majority-Collective Bargaining - charges of , dismissed for failure to
prove that union represented a majority of employees-Employee Status: super-
visory employees : sectionmen , fixers, and loom fixers as; definition of-Evidence:
state statute which disqualifies persons convicted of larceny from giving evidence,
not applicable to proceedings before the Board-Reinstatement : ordered-Back
Pay: awarded-Investigation of Representatives: controversy concerning repre-
sentatives of employees : company demanded that the Union prove that it
represented a majority of employeesElection Ordered: to take place at such
time as the Board shall hereafter direct.
Mr. John 7'. Mahoney, for the Board.
Mr. C. D. Puckett, of Kingsport, Tenn., for the T. W. O. C.
Kelly, Penn d Hunter, of Kingsport, Tenn., for the respondent.
Mr. Winfield B. Hale, of Rogersville, Tenn., for the Association.
Mr. Herbert Fuchs and Mr. William Stix, of counsel to the Board.
DECISION
ORDER
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On July 19, 1937, Textile Workers Organizing Committee, herein
called the T. W. O. C., filed with the Regional Director for the Tenth
Region (Atlanta, Georgia), herein called the Regional Director,
a petition alleging that a question affecting commerce had arisen
concerning the representation of employees of Borden Mills, Inc.,
Kingsport, Tennessee, herein called the respondent, and requesting
13 N. L. R. B., No. 54. 459
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an investigation and certification of representatives pursuant td
Section 9 (c) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. On August 21, 1937, the National Labor
Relations Board, herein called the Board, acting pursuant to
Section 9 (c) of the Act and Article III, Section 3, of Na-
tional Labor Relations Board Rules and Regulations-Series 1,
as amended, herein called the Regulations, ordered an investigation
and authorized the Regional Director to conduct it and to provide
for an appropriate hearing upon due notice.
Upon charges and amended charges duly filed by the T. W. O. C.,
the Board, by the Regional Director, issued its complaint dated
December 1, 1937, against the respondent, alleging that the respond-
ent had engaged in and was engaging in unfair labor practices
affecting commerce, within the meaning of Section 8 (1), (2), (3),
and (5), and Section 2 (6) and (7) of the Act. The complaint,
as amended, alleges in substance that the production employees of
the respondent, excluding supervisory and clerical employees, con-
stitute a unit appropriate for the purposes of collective bargaining;
that although a majority of the employees in that unit have desig-
nated the T. W. O. C. as their exclusive bargaining agency, the
respondent has refused and continues to refuse to bargain collec-
tively with the T. W. O. C.; that the respondent has dominated,
supported, and interfered with the formation and administration of
a labor organization, known as Borden Mills Employees Association,
herein called the Association; that the respondent has discharged
George Absher, William Heath, and George E. Brooks from employ-
ment for the reason that they joined and assisted the T. W. O. C.,
thereby discouraging membership in the T. W. O. C.; and that by
the foregoing acts and refusals to act, and by persuading and warn-
ing its employees to become members of the Association and to
refrain from becoming members of, or to resign from membership
in, the T. W. O. C., the respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed by
Section 7 of the Act.
On December 4, 1937, the Board, acting pursuant to the Regula-
tions, ordered that the cases be consolidated for the purpose of
hearing. The complaint and accompanying notice of hearing were
duly served upon the respondent and upon the Association. The
respondent filed an answer objecting to the Board's jurisdiction of
the subject matter, and denying that it had engaged in the unfair
labor practices alleged in the complaint.
Pursuant to notice, a joint hearing upon the petition and the com-
plaint was held in Kingsport, Tennessee, from December 13, 1937,
to January 14, 1938, before James G. Ewell, the Trial Examiner duly
designated by the Board. The Board and the respondent were repre-
BORDEN MILLS , INCORPORATED 461
sented by counsel, and the T. W. O. C. by an organizer. At the open-
ing of the hearing the Association appeared by counsel and presented
its motion to intervene. The motion was granted. All parties par-
ticipated in the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing upon
the issues was afforded all parties.
The Board has reviewed the rulings of the Trial Examiner upon
motions and objections to the admission of evidence made during the
hearing and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
On June 23, 1938, the Trial Examiner filed his Intermediate Report.
He found that the respondent had engaged in and was engaging in
unfair labor practices within the meaning of Sections 8 (1), (2), and
(3) and 2 (6) and (7) of the Act, and recommended that the re-
spondent cease and desist from the unfair labor practices found,
reinstate with back pay George Absher and William Heath, and dis-
establish and withdraw recognition from the Association. He rec-
ommended, further, that the complaint be dismissed in so far as it
alleges that the respondent discriminatorily discharged George E.
Brooks, and engaged. in unfair labor practices within the meaning
of Section 8 (5) of the Act.
Exceptions to the Intermediate Report were thereafter filed by the
respondent, the Association, and the T. W. O. C. Pursuant to notice,
a hearing was held before the Board at Washington, D. C., on Sep-
tember 27, 1938, for the purpose of oral argument. The respondent
and the Association were represented by counsel and participated in
the argument.
The Board has fully considered the exceptions to the Intermediate
Report, and, in so far as they are inconsistent with the findings, con-
clusions, and order set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a Massachusetts corporation engaged, at its
textile mill in Kingsport, Tennessee, in the manufacture and sale of
unbleached cotton cloth. Raw cotton, of which the respondent weekly
consumes 500 bales, each weighing 500 pounds, is the principal- mate-
rial used in the manufacturing process. More than 90 per cent 'of
the cotton is shipped to the mill by rail from points outside the State
of Tennessee. Approximately one-half, known as "filler" cotton, is
grown in the vicinity of Huntsville, Alabama; the other half, called
"warp" cotton, originates in Arkansas and is accumulated at a cotton
compress at Memphis, Tennessee, before shipment to the mill. The
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent's mill is equipped with modern machinery. Most of the
machinery and replacement parts in use at the mill were manufac-
tured outside Tennessee.
The respondent produces 230,000 pounds of cloth weekly. Its
annual sales aggregate approximately $3,000,000. More than 99
per cent of its output is shipped by railroad to customers in New
England.
During the last 8 months of 1937, the mill was in operation three
8-hour shifts daily and employed more than 1,300 persons.
II. THE ORGANIZATIONS INVOLVED
Textile Workers Organizing Committee is a labor organization
affiliated with the Committee for Industrial Organization which,
according to testimony of its representatives, admits to membership
employees of the respondent who do not work in supervisory or
clerical capacities.
Borden Mills Employees Association is an unaffiliated labor organi-
zation which, according to its constitution, admits to membership
employees of the respondent who have had at least 1 month's con-
tinuous employment and who do not represent. the management.
III. THE UNFAIR LABOR PRACTICES
A. Organization of the T. W. O. C.
The T. W. O. C. started to organize employees of the respondent
in April 1937. By the end of May it had obtained almost 200 mem-
bership applications, and in June it obtained several hundred more.
The meetings held during the early part of June were attended by
400 to 600 people, but fewer persons came to later gatherings.
B. The respondent's supervisory staff
The respondent's plant is under the direction of George H. Hughes,
the general manager. Every shift in each of the three departments
which figure principally in the record has an overseer and one or
more second hands, the overseer of the first shift serving as depart-
ment superintendent. In addition to these employees, whose duties
are admittedly supervisory, there are section men in the spinning
department, loom fixers in the weaving department, and fixers in
the carding department, the nature of whose duties we must deter-
mine, since the T. W. O. C., on the one hand, asserts and the respond-
ent and the Association, on the other hand, deny that these men
exercise supervisory authority.'
'The Association prepared and introduced an exhibit showing that 29 loom fixers,
1 section man, and 1 fixer joined the T. W. O. C., but John Peel, Regional Director of
the T. W. O. C., t@stified that for purposes of determining eligibility he considered as
BORDEN MILLS, INCORPORATED 463
Section hands, fixers, and loom fixers are skilled mechanics who
keep in running condition the machines in the "sections" to which
they are assigned . They make ordinary repairs, but in case of a
breakdown or other serious difficulty with the machinery, they sum-
mon a machinist or a belt man.
A number of the respondent's witnesses testified that section men,
loom fixers, and fixers do not have the power to employ or discharge,
to recommend or procure employment or discharge, to lay off work-
ers, or to "lay out" work. There is substantial evidence, however,
that they do perform functions which make them part of the super-
visory staff. We shall first consider section men.
At the beginning of each shift the section man fills the posts of
any absent spinners with "spare hands" 2 and then dismisses such
spare hands as are not needed. After that is done he walks about
his section to "see that the job is kept straight." If a worker is
"laying down on the job" or doing something wrong, the section man
talks to him. If the employee fails to correct himself, the section
man may report him to the second hand, who either talks with the
offending employee or gives the section man instructions as to what
action should be taken. Orders from the second hand or overseer
are given to employees by the section man. One employee testified
that he never receives orders from anyone except his section man.
Section men mark up the "hanks" for spinners-the number of hanks
determines how much a worker is paid-and write on a board the
time when doffers are to start work. Witnesses testified that a sec-
tion man is an "assistant to a second hand" and that he is sometimes
called "boss."
Evidence on other issues reveals several examples of the exercise
of supervisory authority by section men. On one occasion, J. J.
Jordan, an overseer , criticized an employee for producing long "tails"
or "ends" and instructed Cecil Ward, a section man, to inform him
if the man repeated his error. A few minutes later Ward observed
the worker making the same mistake and sent him to Jordan, who
discharged him. On July 27, 1937, Clarence Wilson, a section man,
reported to Lee Hovis, a second hand, that George Edward Brooks
refused to start work, an incident that served as a prelude to Brooks'
supervisory employees only those who have the right to employ or discharge, or to
request the employment or discharge of other employees No comparable list was pre-
pared to show how many fixers , section men, and loom fixers joined the Association. We
find from other evidence , however , that at least 16 loom fixers , 1 fixer, and 7 section
men joined the Association ; that of these all 16 loom fixers , the fixer, and 1 section man
also joined the T. W. O. C.; and that of those who joined both organizations at least
9 loom fixers , the fixer, and the section man joined the T. W 0 C. first and the
Association subsequently . That a union admits certain employees to membership does not
preclude the Board from finding that they possess supervisory authority . See Matter of
Ward Baking Company and Committee for Industrial Organization, 8 N. L R. B. 558.
2 These spare hands are hired by an overseer and the section man is instructed to
apportion days of work equally among them
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge the following day." On July 28, Wilson Told Bert Morgan,
who had been given permission not to work but who was voluntarily
helping Brooks, to stop doing so because it would upset the doffing
schedule on the next shift.
The respondent contended that there is no distinction between the
duties of a section man, a fixer , and a loom fixer, and that none of
them acts in a supervisory capacity. While we agree that there is no
appreciable distinction, we are of the opinion that loom fixers and
fixers, as well as section men, have supervisory authority. Loom
fixers are under a duty to report poor work or misconduct of per-
sons subordinate to them. Fixers convey instructions from second
hands to employees working on the machines to which they are
assigned . As an example of the authority exercised by fixers it may be
noted that Sells, a fixer in the cardroom, when requested by Heath on
the night of his discharge to ask permission from Daniel for Heath to
leave the plant, neglected, after ascertaining that no spare hands
were available, to report Heath's request to the second hand and
himself undertook to tell Heath that there was nobody available to
replace him 4
An employee who has the power and duty of making reports about
poor workmanship and misconduct of other employees necessarily
influences decisions affecting discharges and lay-offs. It is he who
must determine, in the first instance, whether any report should be
made. Furthermore, as the evidence shows, where there has been no
occasion for the section man, loom fixer, or fixer to volunteer a report,
his superiors may seek information from him concerning conditions
and occurrences in his section. On the basis of these considerations
we believe that, while a section man does not have the power to dis-
charge or even to recommend discharge, it is possible for him to
initiate or prevent such action. This conclusion is supported by
Perry Raymond Long's testimony that an ordinary employee "knows
better" than to report a section man to the second hand or overseer,
because
if we reported anything on the section hand, why, he
will evidently see the overseer before we would or after we would,
and it is just our job, that is all. What I mean by that, that if
we report anything on the section man, why, it makes him hot
at us and he can make it hard on us and can get us fired, that is
what I mean.5
8 See infra.
s See infra.
8 On cross-examination Long admitted that he had in 1929 been convicted , on a plea of
guilty, of larceny of an automobile . A Tennessee statute disqualifies persons convicted
of larceny from giving evidence , but it is not applicable to proceedings before the Board.
BORDEN MILLS, INCORPORATED 465
The power to employ or discharge is not the sole criterion by which
eve determine. whether an employee-speaks with the voice of his em-
ployer. Once an employee is vested with the authority to give orders,
he becomes a part of the supervisory and managerial system, even if
the orders he gives are not initiated by him. Because the section
man customarily gives orders, indicates corrections, and tells workers
what to do, the workers regard him as an agent of the management,
regardless of whether the section man has himself formulated the
order or of whether he has absolute power to take disciplinary
action.5a
Since section men, fixers, and loom fixers are charged with certain
duties and exercise certain powers which are supervisory, executive
and disciplinary in nature, their interests are closely related to those
of the management and are often incompatible with those of the
ordinary worker. We find that section men, fixers , and loom fixers
are supervisory employees and that they act as representatives of the
management in the shop.6
We have, in making our findings on this and other issues , given consideration to Long's
conviction but, since his testimony is uncontradicted in part and is consistent with the
testimony of other witnesses whom we believe , we think it worthy of credit
sn A mill hand knows that if he falls to carry out directions given him by a minor
supervisory employee, he will be reported to the second hand or overseer and possibly
penalized Efficient operation of a plant does not permit him to debate or question
instructions he receives A worker , told by a minor supervisory employee that he
should not join one union or that he should become a member of another , will not ask
a higher official whether the subordinate has spoken with express authority , for should
he so inquire he would reveal his own organizational sympathies and thereby lay himself
open to the danger of discrimination.
e See 'Matter of Stchli and Co, Inc. and Textile Workers Union of Lancaster, Pennsyl-
vania and Vicinity, Local # 133, 11 N L. R B 1397; Matter of Mt Vernon Car
Menufactui ing Company, a corporation , and Local Lodge No . 1'156, Amalgamated Assocrta-
tion of Iron, Steel & Tin Workers of North America , Affiliated with the Committee for
Industrial Organization , 11 N L. R B. 500; Matter of American Manufacturing Company
and Textile Workers ' Organizing Committee , C. I O . 5 N. L R. B 443
For purposes of convenience we list the names and positions of officcis and supervisory
employees mentioned in this decision :
James L Ballard , loom fixer
H. L Bartley . loom fixer
Richaid Carter, loom fixer.
L. L Chandler, superintendent, spinning
department
P 0 Chandler, section man
W B Chandler, overseer, spinning depart-
ment, third shift.
Cecil Cooper, section man
John D Copas, loom fixer.
E C Cross, cashier.
J C. Daniel, second hand , carding depart-
ment, third shift.
Philip Frazier, loom fixei
Lee Hovis, second band, spinning depart-
ment, second shift.
George H . Hughes, general manager
J J Jordan, overseer . spinning department,
second shift
Leonaid Jordan, section man, third shift
Fred Long. section man.
Morris Powell. second hand.
Ben Price , loom fixer
L D Putnam, overseer , cardroom, thiid
shift
Jake Rayfield, second hand , spinning depart-
ment
Arthur Robinette , section man , third shift.
Sam Sells , fixer, third shift.
J Frank Sentell , superintendent. cardroom.
Kyle Sluss , loom fixer.
Perry Thomas , loom fixer.
Cecil Ward , section man , second shift.
John White, section man, cardroom
Clarence Wilson, section men. srcond shift
Luke Wiight, section man.
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Interference, restraint, and coercion
While as early as March 1937, the respondent's supervisory enI-
ploy ees had been instructed by Hughes, the general manager, to
remain neutral and not to interfere with or restrain employees in
their choice of a union, there is evidence that complete neutrality
was not observed.
James Durban left the respondent's employ about March 28, tell-
ing L. L. Chandler, superintendent of the spinning department, that
lie was going to Knoxville. According to Durban's testimony, Chand-
ler advised him "there was lots of unions down there and not to
get mixed up in there, that I (he) would get in trouble there."
Chandler denied having mentioned unions and said that the "trouble"
he referred to concerned Durhan's personal affairs. Durban left
his job with the respondent of his own accord. Chandler either
admitted or failed to deny having had conversations with other
employees which revealed his curiosity about and hostility towards
unions.' We believe and find that Chandler spoke to Durban about
the unions in Knoxville.
Garme Lemons testified that about the time the T. W. 0. C. began
its organizational campaign W. B. Chandler, overseer in the spin-
ning department on the third shift, asked him whether he knew of
anybody "fooling with the C. I. 0. cards or trying to get some signed"
and, told him to report employees whom he saw so engaged. Chand-
ler denied having had any such conversation. Since Lemons' testi-
mony that Cecil Cooper, a section man, had asked him to join the
Association was virtually admitted by Cooper, we have reason to
believe that Lemons is trustworthy. Subsequently, in discharging
Absher, Chandler manifested a hostile interest in union activities
which is consistent with the conversation about which Lemons testi-
fied.8 We find that Chandler made the remarks attributed to him
by Lemons.
According to Kenney Ramey, L. D. Putnam, overseer in the card-
room on the third shift, about June 10 inquired how the C. I. 0. was
"getting along," said he had heard that Ramey had signed up the
night before, and stated, when Ramey declared that he was not a
member, that, while he could not discharge hint for having joined,
he could find some other reason for doing so. Putnam denied having
had this conversation. About June 30, according to William Heath,
Putnam told him that anybody who cared to could join the union,
that "Mr. Borden had his living" and did not have to run the mill,
but that "all the rest of us" had to work. Putnam denied having said
anything about Mr. Borden. Since two witnesses testified independ-
Infra.
e See infra.
BORDEN MILLS, INCORPORATED 467
ently that Putnam on different occasions made remarks which, though
purporting to express indifference to union organization, clearly
indicate his hostility toward the T. W. O. C., we do not give credit
to Putnam's denials and we find that he made the statements attrib-
uted to him by Ramey and Heath.
On July 2 the T. W. O. C. wrote to Hughes, advising him that
complaints had been made to it that supervisory employees were
telling workers not to join the T. W. O. C. After receipt of this
letter, Hughes again issued instructions that company officials should
remain neutral and impartial with respect to labor organizations.
There is testimony, however, that supervisory employees continued
to discourage membership in the T. W. O. C.
Perry Raymond Long and Porter Robinson testified that Cecil
Cooper, section man in the spinning department, had during July
said to them that the mill's advice was that no one should join the
C. I. O. because "if they did some one would go hungry." Cooper
denied having made this statement. Subsequently, according to
Long, Cooper told him that he would never derive any benefit from
money paid to the C. I. O. because it would go to New York and to
John L. Lewis. Since Cooper did not deny making the latter state-
ment, and since he admitted, and we find, that he told W. R. Adams
on about July 27 that dues paid to the Association would not
go to John L. Lewis or to New York, we find that he made the state-
ments attributed to him by Long and Robinson.
Long testified that during the latter part of July, on the same night
that Cooper had spoken to him about the money paid into the C. I. 0.,
L. L. Chandler inquired about the C. I. 0., saying that someone had
told him Long was "a big man" in it; that Long denied having any
connection with the C. I. 0.; and that Chandler said, "Well, we don't
care who joins the C. I. O. and how many joins it, but somebody is
going to get in trouble." Chandler admitted having asked Long
whether he belonged to the C. I. O. "out of curiosity," but said that
when Long appeared to know nothing about it he told him, "Well,
join anything you want to, Perry." Regardless of which version of
Chandler's final remark correctly reflects the facts, Chandler's ad-
mitted expression of curiosity in itself interfered with Long's rights
under the Act. We find that the conversation took place as related
by Long. We find, moreover, since Chandler failed to deny it, that
he told Absher, following the latter's discharge, "Well, George, you
have been pulling against us." s
W. R. Adams testified that on August 18 or 19 Fred Long, a sec-
tion man who was not called as a witness, told him that there was
9 From the remainder of this colloquy we find that Chandler was referring to Absher's
union activities . Cf. infra.
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nothing to the C. I. O. and that he would give him $20 if in Knox-
ville there was "anything . .. operating under the C. I. O. or any-
thing else." Since Adams' testimony is uncontroverted, we find that
this conversation took place.
On the basis of undenied testimony by Porter Robinson, we find
that Leonard Jordan, a section man in the spinning department on
the third shift, said to him that his family would starve to death
if he had anything to do with the C. I. O.
Since Sells had no recollection concerning it, we find, as Heath
testified, that on a number of occasions Sells asked him whether he
belonged to the C. I. O.
George Edward Brooks attributed to Clarence Wilson a statement
that the unions would not get anywhere and that they were "reds,
communists, and I don't know just what all," and testified that Wil-
son, on the day that T. W. O. C. representatives conferred with the
respondent about an agreement,10 had offered to bet $17 to $5 that
the T. W. O. C. would not be recognized. Mary Penley testified that
Arthur Robinette, a section man in the spinning room on the third
shift, told her that the C. I. O. was coming to town and that she
should not join. Perry Raymond Long testified that on August 8
or 10, Robinette had told him that the C. I. O. was not worth any-
thing and that "people was going to get in trouble if they kept on
messing with the C. I. 0." While Wilson and Robinette denied hav-
ing had these conversations, Wilson admitted having asked Brooks,
and Robinette confessed that he had asked Penley, to join the Associ-
ation. Both of them admittedly solicited other employees as well.
In view of the sympathy thus manifested by them for the Associa-
tion, we believe that they were hostile to the T. W. O. C. and we find
that they expressed their hostility in the manner asserted by Brooks,
Penley, and Long.
We find that the respondent, through its supervisory employees,
by expressing to its employees hostility toward the T. W. O. C., has
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed them by the Act.
D. The alleged refusal to bargain collectively
1. The appropriate unit
The respondent's production process is an integrated one involving
a virtually continuous series of operations from the warehousing of
the raw material to the completion of the finished cloth. Both the
T. W. O. C. and the Association have organized employees on a
plant-wide basis. No contention was made that any other than the
10 July 16. See infra, III, D
BORDEN MILLS, INCORPORATED 469
plant unit should be designated. That clerical.and supervisory em-
ployees should be excluded from the unit was assumed by all the
parties. While it was agreed that overseers and second hands were
supervisory employees, a question arose as to the classification of
section men, fixers, and loom fixers. We have already considered
this matter and found that their interests are more closely related
to those of management than to those of the ordinary employee.-
We find, accordingly, that the production and maintenance employees
of the respondent, exclusive of clerical and supervisory employees,
overseers, second hands, section men, fixers, and loom fixers, consti-
tute a unit appropriate for the purpose of collective bargaining and
that, this unit insures to employees of the respondent the full benefit
of their '"right to self-organization and to collective bargaining and
otherwise effectuates the policies of the Act.
2. Representation by the T. W. O. C. of a majority of employees
in the appropriate unit
The complaint alleges that on July 16, 1937, and at all times there-
after the respondent refused to bargain collectively with it as the
exclusive representative of the employees . The T. W. O. C. sub-
mitted in evidence 973 membership cards . During the course of the
hearing , these cards and the signatures appearing on them were, with
the consent of the T. W. O. C. and in the presence of the representa-
tives of all the parties , compared with the names and signatures of
persons on the respondent 's pay roll. An analysis of the cards , bring-
ing out objections raised by the respondent to certain of them, was
entered as an exhibit . All parties stipulated to the accuracy of the
facts set forth in that exhibit. We find, on the basis of the cards
and the analysis , that the T. W. O. C. did not on July 16, 1937, repre-
sent a majority of the respondent's employees.12
3. The alleged refusal to bargain
On July 16, pursuant to an appointment previously made, John
Peel and W. G. Hart, organizers for the T. W. O. C., called at the
respondent's plant and had a conference with Hughes, E. C. Cross,13
the respondent's cashier, and_ W. L. Holyoke, the respondent's plant
engineer. When Peel told them that he wanted to negotiate an agree-
11 Supra, III, B.
12 Early in July 1937, a considerable number of employees who had previously joined
the T. W. O. C. submitted their resignations . Persons who joined the Association by
signing an application card authorized the Association to revoke their membership in the
T. W. O. C. Even if all these resignations were to be disregarded as made under the
influence of the respondent 's unfair labor practices , the T. W. O. C. would not have
had a majority on July 16.
v Cross' initials also appear in the record as "K. R."
187930-39-vol. 13-31
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment and claimed to represent 90 per cent of the employees, Hughes
said that he would have to prove it. Peel answered that he could ask
the Board to check the Union's membership cards or to hold an
election and that he would immediately file a petition for certifi-
cation. Hughes indicated that this procedure would be agreeable to
him and inquired whether Peel had any further business that he
wished to discuss. Peel said that he had none, and Hart and he went
away. Three days later he filed a petition for certification of repre-
sentatives. The-T. W. O. C. did not again request the respondent to
bargain with it.
4. Conclusion
The T. W. O. C. did not on July 16 represent a majority of the
respondent's employees. Thereafter it did not repeat its request
that the respondent bargain collectively with it. We find that the
respondent has not refused to bargain collectively with representa-
tives designated for the purposes of collective bargaining by a
majority of its employees in an appropriate unit.
E. Borden Mills Employees Association
On July 10, 1937, T. C. Yonce, then chairman of the T. W. O. C.
at the respondent's mill, and Lewis Foster, a Kingsport businessman,
came to call on C. P. Edwards, a member of the insurance firm of
Bennett & Edwards, Inc.,-, Yonce expressed doubt as to whether he
should continue his activity in the C. I. 0., said that he was thinking
of organizing an independent union, and sought information about
whether it would have to be incorporated and whether it would be
legal under the Act. Edwards, while advising Yonce that he should
stay with the T. W. O. C. as long as his conscience permitted,
explained to him that a local association would have a good deal of
merit. Edwards consulted an attorney and communicated to Yonce
and Foster additional information. They then instructed him to
have application cards printed and to have the attorney draft a con-
stitution and bylaws. On July 22, at a meeting of about 20 people
held at Edwards' office, the constitution and bylaws were tentatively
adopted, temporary officers were elected, and the officers were empow-
ered to appoint a committee with full authority to bargain and
contract with the respondent. There followed a campaign for mem-
bership in which supervisory employees took a prominent part.
We find, since the evidence was uncontroverted, that John White,
a section man, told George Absher, after the latter's discharge,15 that
is Bennett & Edwards, Inc, has, on a competitive basis, written insurance for the
respondent for 10 years ' Commissions on insurance written for the respondent by this
firm amount to approximately $500 a year. The total annual commissions received by
Bennett & Edwards , Inc., are approximately $75,000.
"See infra. -
BORDEN MILLS, INCORPORATED 471
if Absher joined the Association his reinstatement would be
guaranteed.
J. W. Johnson testified and, since it was uncontroverted, we find
that Fred Long, a section man, said to him, "You won't work for
anybody else but me, will you? . . . Have ,you joined the union, the
company union? ... If you don't join the company union .. .
you are laid off."
We find that P. 0. Chandler, a section hand, gave James Rice, a
16-year old worker, an Association card and told him, "Boy, you
better hurry up and sign that," for although Chandler denied that
this incident occurred, he admitted having solicited members for the
Association.
As shown by the following table, section men, fixers, and loom fixers
obtained or assisted in obtaining at least 265 out of a total of 1,096
Association members :
Section men :
Cecil Cooper----------------------------------------- 36
Clarence Wilson-------------------------------------- 19
P. 0. Chandler--------------------------------------- 17
Luke Wright----------------------------------------- 16
Arthur Robinette------------------------------------- 13
Fred Long-------------------------------------------- 12
Leonard Jordan-------------------------------------- 5
Fixer:
Sam Sells-------------------------------------------- 18
Loom Fixers :
J. L. Ballard----------------------------------------- 101
Richard Carter--------------------------------------- 12
Perry Thomas---------------------------------------- 6
John D . Copas--------------- ------------------------- 4
Ben Price-------------------------------------------- 3
Philip Frazier---------------------------------------- 1
H. L. Bartley----------------------------------------- 1
Kyle S1uss------------------------------------------- 1
Total---------------------------------------------- 16265
At 10 o'clock on August 4, a committee representing the Asso.
ciation , which had obtained membership applications from a ma-
ie The Association introduced as exhibits its original membership application cards and
a list of members , prepared from the cards, which indicates by whom each card was
witnessed . We are of the opinion that, as a rule, the person who witnessed an appli-
cation was the one who solicited it. Even on the unlikely assumption that the witness
did nothing more than sign his name in order to provide a means of verifying the appli-
cant's signature , by that service be unquestionably assisted in obtaining the membership.
Chandler, Cooper, Jordan , Robinette , Sells, and Wilson admitted that they had solicited
members. These admissions and the above-mentioned exhibits constitute the basis for
our findings embodied in the table The tabulation, it may be remarked , is in all prob-
ability incomplete , for although the respondent employs about 90 section men, fixers,
and loom fixers when operating with 3 shifts , fewer than half of them are identified in
the record.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jority of the respondent's employees, presented to the respondent a
certified list of its members and asked for recognition as sole
collective bargaining agency. The cashier, at Hughes' direction,
compared the names of the Association members with the company
pay roll. Within a few hours he reported that 713 of the 734 names
on the Association's list represented employees actually on the re-
spondent's pay roll, and that this constituted a majority of the
respondent's employees. Thereupon the respondent and the Asso-
ciation entered into a written contract whereby the Association was
recognized for a ,period of 2 years as the sole collective bargaining
agency and both parties agreed to submit disputes to arbitration.
On August 10 the respondent granted, in whole or in part, a number
of further demands made by the Association, including establish-
ment of a check-off for such employees as would authorize it in
writing. On November 26, the respondent, as the result of a request
for a closed shop by the Association, which then had approximately
1,100 members, agreed to inform new employees that it was operat-
ing under a "closed-shop" agreement, but reserved the right to hire
workers from any source and refused to compel employees to join
the Association.
The respondent's continuous activity in discouraging membership
in the T. W. O. C. gave a strong impetus to the creation of an un-
affiliated union. Once the Association was formed, the respondent's
supervisory employees assisted it in soliciting members. The success
of the Association in obtaining applications from a majority of the
respondent's employees in less than 2 weeks from the time it, started
to solicit members is attributable in large part to the aid and cooper-
ation it received from the respondent. A substantial number of
members was obtained directly through solicitation by supervisory
employees.17 The assistance rendered to the Association by this
activity lies not only in the immediate enrollment of members, but
also, and no less significantly, in the effect of such solicitation upon
the workers. Participation of supervisory officials in the campaign
for Association memberships indicated to employees that the respond-
ent approved of that organization and desired that they join it.
Under these circumstances workers, even when approached- by non-
supervisory employees, could not refuse to join the Association with-
out running the risk of antagonizing the respondent.
17 The first open meeting of the Association was held on July 26. On that day at
least 32 members were obtained wholly or in part through the efforts of supervisory
employees ; on July 27, 27; on July 28, 38; on July 29, 40; and July 30, 29. By
August 4, when the Association represented to the respondent that its members con-
stituted a majority of the employees , approximately 226 members had been obtained with
the assistance of the supervisory employees . A number of the incidents, moreover, which
are discussed in III , C, supra, occurred prior to August 4.
BORDEN BILLS, INCORPORATED 473
We find that the respondent dominated and interfered with the
formation and administration of, and contributed support to, the
Association and thereby interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed by Section 7 of
the Act.
The complaint alleges that Edwards, acting for the respondent,
sponsored and organized the Association and that for compensation
furnished by the respondent, Thomas A. Dodson, city attorney, Clif-
ford E. Sanders, juvenile judge, and the Reverend J. Luther Trent
acted on behalf of the Association or against the T. W. O. C. While
these persons were active for the Association or against the T. W.
O. C., the record fails to sustain, and we shall accordingly dismiss,
the allegations that in their activities they were prompted or com-
pensated by the respondent.
F. The discharges 18
George Absher. Absher had worked for the respondent intermit-
tently from June 1932 to May 20, 1937, the date of his discharge 19
Having joined the T. W. O. C. about May 6, he procured about a
dozen applications prior to his discharge and about twice as many
from that time until October.
Absher was absent from work for one or more days early in the
week of May 17, and was discharged when he came to the plant on
May 20. He testified that he had stayed away because of a tooth-
ache and that he had sent word of his ailment by Paul Henneger,
another employee. Absher stated that when he returned to work
following his toothache, Chandler noticed some union cards in his
pocket, inquired about them, and said, "Well, you've been pretty
active in the union, haven't you? ... Well, you laid out last night,
I cannot use you." Subsequently Absher asked L. L. Chandler,.
superintendent of the spinning department and father of W. B.
Chandler, for a recommendation, saying, however, that he would:
like to work for the respondent if he could. Absher testified and,
"In negotiations between the T. W. O. C., and the respondent on June 8, 1937, the
respondent agreed to reinstate with back pay two employees whom the union claimed to
have been discriminatorily discharged . At that time , charges were dropped as to two
other employees concerning whom a similar claim had been made. None of these four
discharges is in issue in this case.
19 Absher's employment record is as follows :
Employed Quit or discharged
June 2, 19-:2 ------------------------- Quit -------- July 26, 1932.
August 30 , 1932______________________ " -------- November 15, 1932.
November 24, 1932_________________ " ________ March 21, 1933.
March 27 , 1933 ----------------------- ________ June 13, 1933.
July 5, 1933___________________ " -------- July 19, 1933.
November 6, 1934____________________ " ________ June 28, 1935.
January 18 , 1937_____________________ Discharged __ May 20, 1937.
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
since it was not denied, we find that the following conversation
took place:
I (Absher) said, I don't think I have been any worse to lay out
than anybody else. I said, that was on account of sickness, I
don't think Burley should have fired me, and he said, well,
George, you have been pulling against us, and I said, I don't
know. I have been for the union myself. I have not been
changing back and forth like some of them. I am just for the
union, that is all I am.
W. B. Chandler denied having spoken to Absher of the Union at the
time of the discharge, but in view of the subsequent conversation
between Absher and the elder Chandler, we find that the discharge
was effected in the language attributed to W. B. Chandler by Absher.
Absher also testified and, since it was not controverted, we find that
John White, a section hand, told him after his discharge that his
reinstatement would be guaranteed if he would join the Association,
to which Absher replied that he would "study."
Absher had previously been absent from work without giving
notice, had been suspended therefor, and had been warned by W. B.
Chandler that the next repetition of this offense would result in his
discharge. Chandler admitted that Absher, on returning to work
after his absence, mentioned having sent word of his indisposition
by Henneger, but Chandler said that he had not received the message
and that he did not immediately question Henneger, who later told
him he knew nothing about it, because he had seen Absher in town
and at the mill entrance during his absence from work and Absher
had not then presented any excuse for not being on the job. We
think it unlikely that Absher would have told Chandler that he had
given a message to Henneger unless in fact he had done so, since
he would have anticipated that Chandler would attempt to verify
his statement by interrogating Henneger. Absher denied, moreover,
that he had been in town or at the mill entrance when Chandler
claimed to have seen him. For the reason stated below, however,
we make no finding on this conflicting evidence.
On the basis of our findings concerning statements made by L. L.
Chandler and John White and concerning the conversation between
Absher and W. B. Chandler at the time Absher was discharged, we
conclude that the purpose to discourage membership in the
T. W. O. C. was a substantial cause of Absher's dismissal. While
the respondent's evidence, which is controverted, would, if believed,
prove that Absher had committed the offense about the consequences
of which he had received a warning, it is unnecessary to resolve the
conflict of testimony on this issue. If we assume that Absher did
not report his illness there would have been two causes for the
discharge,-his absence and his union activity. Even on the supposi-
BORDEN MILLS, INCORPORATED 475
tion that it would constitute a defense to the unfair practice alleged
to prove that the discharge would have taken place without consider-
ation of the latter cause, the respondent has not made such a showing.
We find that the respondent discharged Absher because of his
union membership and activity, that the respondent thereby dis-
couraged membership in the T. W. O. C. by discrimination in regard
to his tenure of employment, and that the respondent thereby
interfered with, restrained and coerced its employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
George Edward Brooks. Brooks worked for the respondent for a
short period in 1925, again from August 1932 to February 1936, and
from August 1936 until his discharge on July 28, 1937. He joined
the union on June 12. We have previously found that Clarence
Wilson, his section man, told Brooks in June that the T. W. O. C.
would get nowhere and that it was red and communist; and that,
on the day of the conference between the T. W. O. C. and the
respondent, Wilson said he would bet Brooks $17 to $5 that the
T. W. O. C. would not be recognized.20 On about July 26 he asked
Brooks to join the Association and Brooks responded that he would
if Wilson would join the C. I. O.
On July 27, Brooks did not start to work promptly' at 3:45, the
hour marked on the board as his "doffing time." Wilson, after 5
minutes, spoke to him and pointed out that four frames had stopped
running, but Brooks replied that he would not start until 4 o'clock
and said, "I don't give a God dam if they all stop." To Lee Hovis,
the second hand, who was summoned by Wilson, Brooks repeated
what he had told Wilson. On July 28, Brooks fell behind in his
doffing. Jordan, after asking Wilson what the cause was, talked to
Brooks, who answered, "If you don't like the way I am doing, why
in the God dam hell don't you fire me?" In response to this sugges-
tion, Jordan told Brooks that he was discharged.
Brooks and two other witnesses asserted, but the respondent's
witnesses denied, that on July 28 Wilson had changed Brooks' doffing
time, thereby causing several frames to "run over," and that this
accounted for his having been behind schedule. Brooks admitted
that he knew that the change in time would cause spoilage of mate-
rial, but said that he took no steps to avert such damage. The record
reveals no plausible reason why Wilson should have changed the
time. Consequently we find that the doffing time was not changed.
Despite the anti-union statements made to Brooks, we find on all
the evidence that he was discharged because of insubordination
toward his supervisors.
William Heath. Heath first came, to work for the respondent in
1925, left for short periods in 1927 and 1929, was discharged in March
20 Supra.
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or April 1937,21 was reemployed in May, and was again discharged
late in July 1937. He was admittedly a good worker.
Heath joined the T. W. O. C. about June 20. He had spoken in
favor of the union and signed up three or four members. Member-
ship applications obtained by Heath and boarders at his house were
picked up there by a union organizer.
The day following his discharge in March or April, according to
Heath, Sentell, superintendent of the spinning department, said to
him that when Hughes had given him instructions to discharge Heath
he had told Hughes that he did not want to, that Heath was a good
worker, and that he thought that "if any labor trouble ever came up
up there that I (Heath) would be on their side." Sentell admitted that
he had a conversation with Heath, but denied having made this state-
ment. Since Hughes was not asked whether Sentell had said this to
him and since a hostile attitude toward the T. W. O. C. was expressed
by various supervisors, we do not, credit Sentell's denial but find that
he made the statement to which Heath testified. We have found that
about June 30, L. D. Putnam, Heath's overseer, told him that any-
body could join the union who wanted to, that Mr. Borden "had his
living" and did not have to run the mill, but that "all the rest of us"
had to work,22 and that Sam Sells, the fixer under whom he worked,
had asked him a number of times whether he belonged to the T. W.
O. C.23 On the last occasion Heath admitted that he did belong and
Sells gave him the name of a lawyer who could aid him in resigning.
When he came to work on July 19, Heath complained to J. C.
Daniel, the second hand, that he had a "sick headache" and asked
for permission to take the night off. There were no extra hands
available and consequently Daniel told Heath to remain at work. The
following night, before work started, Heath requested Sells to ob-
tain for him permission to leave. On this occasion, because he knew
that there was no one available to replace Heath, Sells neglected to
speak to Daniel.24 Heath testified that when Sells told him that
there was no one to take his place, he said that he, was going home,
that he was too sick to work, and that he would be back when he
"got able." Sells declared that Heath, on leaving, directed him to
tell Putnam and Daniel to send for him if they ever needed him any
more. Since, however, on the following day Heath reported for work
but was not given employment and since he sought reinstatement
repeatedly thereafter, we believe and find that he departed with the
21 This discharge was occasioned by Heath's having come to the plant drunk during a
shift other than his own
2 Supra.
23 Supra
24 Heath testified that he sought permission to leave from Sells on the first evening and
from Daniel on the second, but we are of the opinion that the testimony of Sells and
Daniel, which bears out our findings , correctly reflects the facts. Daniel testified that
if Sells had informed him of Heath's request he probably would have allowed him to leave.
BORDEN MILLS, INCORPORATED 477
remark to which he testified rather than with that mentioned by
Sells.
Heath testified that about September 1, at a time when he was
working in South Carolina but had returned to Kingsport for the
week end, he asked Sells whether his T. W. 0. C. membership was
preventing his reinstatement; that Sells said he did not know but
that it "probably could be"; and that Sells suggested that he join
the Association and surrender to him his T. W. 0. C. membership
card, which he did. Sells gave a different version of this incident,
attributing the entire initiative to Heath. Sells' admission that he
asked Heath to join the Association subsequent to the time that
Heath ceased to be employed by the respondent, together with the
fact that Sells had repeatedly asked Heath whether he belonged to
the T. W. 0. C.,' lends credibility, however, to Heath's testimony
which, we find, truly reflects the facts. In November or December,
Heath telephoned Hughes and told him that he had joined the Asso-
ciation and had resigned from the T. W. 0. C., but Hughes re-
sponded that he did not care which union Heath belonged to.
The respondent contends that Heath was not reinstated on July 21
solely because he left his job without permission or reasonable excuse
at an hour of the night when he could not be replaced.25 Custom-
arily, if one employee is unable to work and it is essential that his
place be filled, the respondent asks someone from the previous shift
to work another shift. Heath intentionally came to the plant early
so that the respondent would have an opportunity to find a substitute
for him. We find that Heath's headache rendered him unable to work
without undue hardship and that, since he had complained of the
ailment for two successive nights, he had, and that the respondent
knew he had, a reasonable excuse for leaving the plant.
We find that Heath was discharged because of his membership and
activity in the T. W. 0. C., and that by discharging him the respond-
ent discouraged membership in the T. W. 0. C. by discrimination in
regard to his tenure of employment, and interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the re-
25Harley Grissom, a witness for the respondent, testified that about 10:30 on the
evening that Heath left the plant he said to Grissom, "Let's quit and go to Danville
Virginia." Grissom replied that he could not go, and Heath said that be had a headache
and would not be at the plant 5 minutes longer. Since Heath spoke of a headache
which would not allow him to remain any longer at the plant , and since on the following
day he attempted to return to work, we do not attribute significance to his suggestion
that Grissom and he go to Danville , which is approximately 250 miles from Kingsport.
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent described in Section I above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
We have found that the respondent engaged in unfair labor
practices, within the meaning of subsections (1), (2), and (3) of
Section 8 of the Act. Our order will require the respondent to cease
and desist from such practices.
Having found that the respondent discharged George Absher and
William Heath because of their membership and activity in the
T. W. O. C., we shall, in order to effectuate the policies of the Act,
direct the respondent to reinstate each of them tb his former posi-
tion, without prejudice to his seniority and other rights and privi-
leges, and to make each of them whole for any loss of pay he may
have suffered by reason of his discharge by payment to him of a sum
equal to the amount he normally would have earned as wages from
the date of his discharge to the date of the offer of reinstatement,
less his net earnings 26 during that period.
We have found that the respondent has dominated and interfered
with the formation and administration of the Association and has
contributed support to it. Under the circumstances the Association
is incapable of serving as a true representative of the employees for
collective bargaining purposes. The existence of the Association and
its recognition by the respondent constitute a continuing obstacle to
the exercise of the employees' right of self-organization and to
bargain collectively through representatives of their own choosing.
We shall, accordingly, in order to effectuate the policies of the Act,
require the respondent to disestablish and to withdraw all recognition
from the Association as a bargaining representative of its employees?'
We have found that on August 4, 1937, the respondent entered
into a contract with the Association for the duration of 2 years. This
contract was supplemented by other agreements, both oral and written.
We find that this contractual relationship was a means by which the
26 By "net earnings" Is meant earnings less expenses , such as for transportation, room
and board , incurred by an emuloyee in connection with obtaining work and working
elsewhere 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 Brotherhood 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 and municipal or other
work-relief projects are not considered as earnings , but 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 government or governments
which supplied the funds for said work-relief projects.
"National Labor Relations Board v. Fansteel Metallurgical Corporation . 306 U S. 240 ;
National Labor Relations Board v. Pennsylvania Greyhound Lines, Ino, et at, 303 U S. 261.
BORDEN MILLS, INCORPORATED 479
respondent utilized an employer-dominated labor organization to
frustrate self-organization among and defeat collective bargaining by
its employees. Under these circumstances, any continuation, renewal,
or modification of the contract between the respondent and the As-
sociation would perpetuate the forces which have deprived employees
of the rights guaranteed to them by the Act and would render in-
effective other portions of our remedial order. We shall therefore
direct the respondent to cease giving effect to any contract or con-
tracts existing between it and the Association, and shall likewise
prohibit the making, renewing, or extending hereafter of such con-
tract or contracts.28
VI. THE QUESTION CONCERNING REPRESENTATION
As we have seen, on July 16, 1937, organizers of the T. W. 0. C.,
claiming to represent 90 per cent of the respondent's employees, re-
quested the respondent to bargain collectively with them. When the
respondent demanded proof that the T. W. 0. C. represented a
majority of its employees, the T. W. 0. C. said that it would file a
petition for certification of representatives, which it did on July 19,
1937. Subsequently, on August 4, 1937, the respondent recognized the
Association as sole collective bargaining representative of its
employees.29
We find that a question has arisen concerning the representation
of the respondent's employees.
VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the respondent
described in Section I, above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States
and tends to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
VIII. THE APPROPRIATE UNIT
We have previously found that the production and maintenance
employees of the respondent, exclusive of clerical and supervisory
employees, overseers, second hands, section men, fixers, and loom
fixers, constitute a unit appropriate for the purpose of collective
bargaining and that this unit insures to employees of the respondent
98 Williams Coal Company and United Mine Workers of America , District No. 23,
11 N. L. R. B. 579; West Kentucky Coal Company and United Mine Workers of America,
District No. 23, 10 N. L. R B 88
21 See supra, III, H.
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the full benefit of their right to self-organization and to collective
bargaining and otherwise effectuate the policies of the Act.80
IX. THE DETERMINATION OF REPRESENTATIVES
Membership cards were submitted in evidence by the T. W. O. C.
All parties participated in the preparation of, and stipulated as to
the accuracy of the facts set forth in, an analysis of these cards,
which was entered as an exhibit. On the basis of the cards and the
exhibit we are unable to find that the T. W. O. C. had, either at the
time its petition was filed or at the time of the hearing, been desig-
nated by a majority of the respondent's employees in the appropriate
unit as their representative for the purposes of collective bargaining 81
The T. W. O. C. has shown, however, that it has a substantial mem-
bership among the respondent's employees. We find that the ques-
tion concerning representation which has arisen can best be resolved
by means of an election by secret ballot. We shall accordingly order
the Regional Director to hold an election by secret ballot to determine
whether or not the respondent's employees desire to be represented
by the T. W. O. C. for the purposes of collective bargaining. Since
the respondent has, by engaging in various unfair labor practices,
interfered with the exercise by its employees of the rights guaran-
teed them by the Act, we shall not now set the date for the election
but shall order that it be conducted at such time as we shall here-
after direct. We have found that the Association, in its inception
and development, was dominated by the respondent. It follows that
the Association cannot serve as an effective collective bargaining
agency. Consequently we make no provision for inclusion of the
Association on the ballot.
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. Textile Workers Organizing Committee, affiliated with the Com-
mittee for Industrial Organization, and Borden Mills Employees
Association are labor organizations within the meaning of Section 2
(5) of the Act.
2. The respondent, by dominating and interfering with the forma-
tion and administration of Borden Mills Employees Association, and
by contributing support to it, has engaged in and is engaging in
an unfair labor practice within the meaning of Section 8 (2) of
the Act.
3 Supra, III, D.
m We have previously found that the T. W. O. C. did not on July 16, 193T , represent
a majority of the respondent 's employees . Supra , III. D.
BORDEN MILLS, INCORPORATED 481
3. The, respondent, by discriminating in regard to the hire and
tenure of employment of George Absher and William Heath and
thereby discouraging membership in Textile Workers Organizing
Committee, has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (3) of the Act.
4. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act, has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
6. The respondent has not engaged in unfair labor practices within
the meaning of Section 8 (5) of the Act.
7. The respondent, by terminating the employment of George
Edward -Brooks, has not engaged in unfair labor practices within
the meaning of Section 8 (3) of the Act.
8. A question affecting commerce has arisen concerning the repre-
sentation of employees of the respondent within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
9. The production and maintenance employees of the respondent,
excluding clerical and supervisory employees, overseers, second hands,
section men, loom fixers, and fixers, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9
(b) of the Act.
ORDER
Upon the basis of the above 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 Borden
Mills, Inc., and its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Textile Workers Organizing
Committee, affiliated with the Committee for Industrial Organiza-
tion, or any other labor organization of its employees, by discharging
or refusing to reinstate any of its employees or by discriminating
in any other manner in regard to hire or tenure of employment;
(b) In any manner dominating or interfering with the adminis-
tration of Borden Mills Employees Association, or with the forma-
tion or administration of any other labor organization of its em-
ployees, or from contributing support to said Association or to any
other labor organization of its employees;
(c) Recognizing Borden Mills Employees Association as the rep-
resentative of any of its employees for the purpose of dealing with
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent concerning grievances, labor disputes, wages, rates of pay,
hours of employment, and other conditions of employment;
(d) Giving effect to its contracts relating to hours, wages, and
working conditions, or any modification or renewal thereof, with
Borden Mills Employees Association;
(e) In any other inanner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities, for the purposes of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act.
(a) Offer to George Absher and to William Heath immediate and
full reinstatement to their former position without prejudice to
their seniority or other rights and privileges;
(b) Make whole George Absher and William Heath for any loss of
pay each has suffered by reason of his discharge by payment to him
of a sum of money equal to that which he normally would have
earned as wages during the period from the date of his discharge
to the date of such offer of reinstatement, less his net earnings during
that period, deducting, however, from the amount otherwise due to
him monies earned by him during that period for work performed
upon Federal, State, county, municipal, or other work-relief projects
and pay over the amount so deducted to the appropriate fiscal agency
of the Federal, State, county, municipal, or other government or
governments which supplied the funds for said work-relief projects;
(c) Withdraw all recognition from Borden Mills Employees As-
sociation as a representative of its employees for the purpose of
dealing with the respondent concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of
work, and completely disestablish the Association as such repre-
sentative;
(d) Post immediately in conspicuous places in its plant, and main-
tain for a period of at least sixty (60) consecutive days, notices to
its employees stating that the respondent will cease and desist in
the manner aforesaid and will take the affirmative action described
in paragraphs 2 (a), (b), and (c) of this Order;
(e) Notify the Regional Director of the Tenth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
BORDEN MILLS, INCORPORATED 483
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed in so far as-it alleges that the respondent hqs engaged in
unfair labor practices within the meaning of Section 8 (5) of the
National Labor Relations Act; in so far as it alleges that the re-
spondent discouraged membership in a labor organization by dis-
crimination in regard to the hire and tenure of employment of
George Edward Brooks; and in so far as it alleges that in their ac-
tivities on behalf of Borden Mills Employees Association and against
the Textile Workers Organizing Committee, C. P. Edwards, Jr.,
Thomas A. Dodson, Clifford E. Sanders, and Reverend J. Luther
Trent were acting for or compensated by the respondent.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Re-
lations Act, 49 Stat. 449, and pursuant to Article III, Section 8,
of National Labor Relations Board Rules and Regulations-Series 1,
as amended, it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Borden Mills, Inc., Kingsport, Tennessee, an election by secret
ballot shall be conducted, at such time as the Board shall hereafter
direct, under the direction and supervision of the Regional Director
for the Tenth Region, acting in this matter as agent for the National
Labor Relations Board, and subject to Article III, Section 9, of said
Rules and Regulations-Series 1, as amended, among the production
and maintenance employees of Borden Mills, Inc., employed by that
company during a pay-roll period which we shall in the future
specify, excluding clerical and supervisory employees, overseers, sec-
ond hands, section men, loom fixers, and fixers, and excluding also
those employees who at or before that time will have quit or been
discharged for cause, but including employees not working during
such pay-roll period because they are ill or on vacation and includ-
ing William Heath and George Absher, to determine whether or not
they desire to be represented by Textile Workers Organizing Com-
mittee, affiliated with the Committee for Industrial Organization, for
the purposes of collective bargaining.
MR. WIrLIAM M. LEISERSON took no part in the consideration of
the above Decision, Order, and Direction of Election.