Burson Knitting Co.

National Labor Relations Board - Board Decisions

Sep 24, 1941

35 N.L.R.B. 772 (N.L.R.B. 1941)

In the Matter of BURSON KNITTING COMPANY and AMERICAN FEDERA-
TION OF HOSIERY WORKERS, AFFILIATED WITH THE CONGRESS OF
INDUSTRIAL ORGANIZATIONS
Case- No. C-4837.-Decided September °9lf, 1941
Jurisdiction : hosiery and knitted scarf manufacturing industry.
Unfair Labor Practices
Discrimination : charges of lay-off and refusal to reinstate four employees, dis-
missed. -
Testifying under Act: charges of refusal to reinstate laid-off employees because of,
dismissed
Practice and Procedure : complaint dismissed.
Mr. Jack G. Evans, for the Board.
Fyffe & Clarke, by Mr. John Harrington, of Chicago, Ill., for the
respondent.
Mr. John Banachowicz, of Milwaukee, Wise., for the Union.
Mr. David H. Karasick, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by American Federa-
tion of Hosiery Workers, affiliated with the Congress of Industrial
Organizations, herein called the Union, the National Labor Relations
Board, herein called the Board, by the Regional Director for the
Thirteenth Region (Chicago, Illinois), issued its complaint, dated
January 3, 1941, against Burson Knitting Company, Rockford, Illi-
nois, herein called the respondent, alleging that the respondent had
engaged in and was engaging in unfair labor practices affecting com-
merce, within the meaning of Section 8 (1), (3), and (4) and Section
2-(6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. Copies of the complaint and notices of hearing thereon
were duly served upon the respondent and upon the Union.
With respect to the unfair labor practices, the complaint alleged, in
substance, that the respondent : (1) on or about November 19, 1937,
laid off or discharged Frank Claeyssens, Peter Gumbinas, Oscar Mag-
nuson, and Fred Soderboom, because they joined, assisted, and were
35 N. L . R. B., No. 170.
772 r. _
BURSON KNITTING COMPANY 773
active in behalf of the Union; (2) refused to reinstate the above-named
persons because of their union activities and for the further reason
that each of them testified before a duly designated Trial Examiner
of the Board on April 21 or 22, 1938, in a prior proceeding against
the respondent herein; and (3) by such acts, and by'other acts and con-
duct, interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
On January 13, 1941, the respondent filed its answer, admitting the
allegations of the complaint concerning the nature and interstate
character of its business, and also admitting that it laid off the above-
named persons in November 1937, and thereafter failed to reinstate
them, but denying that it had engaged in the unfair labor practices
alleged in the complaint.
Pursuant to notice, a'hearing was held on January 20, 21, 22, and
23, 1941, at Rockford, Illinois, before Howard Myers, the Trial Ex-
aminer duly designated by the Chief Trial Examiner. The Board
and the respondent were represented by counsel, and the Union by
its representative; all 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 close of the Board's case and again at the end of the hearing,
the respondent's counsel moved to dismiss the allegations of the com-
plaint., Ruling thereon was reserved, but the motions were thereafter
denied by, the Trial Examiner in his Intermediate Report. At the
close of-the hearing, counsel for the Board moved to, conform the com-
plaint to the proof, explaining that the motion was directed to formal
matters such as spelling of names and correction of dates, but not to
include any new charge of unfair labor practices. The motion was
granted without objection. On February 15, 1941, the respondent filed
a brief with the Trial Examiner.'
On March 14, 1941, the Trial Examiner issued his Intermediate Re-
port,.copies of which were duly served upon the parties, in which he
found that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce, within the meaning of 'Section
8 (1), (3), and (4) and Section 2 (6) and (7) of the Act. He recom-
mended that the respondent cease and desist from the unfair labor
practices so found, and, by way of affirmative action, reinstate, with
back pay, Frank Claeyssens, Peter Gumbinas, Oscar Magnuson, and
Fred Soderboom. Thereafter, the respondent filed a brief and excep-
tions to the Intermediate Report. The _ Board has considered the
respondent's exceptions to the Intermediate Report, and its brief in
'On March 5 , 1941, a stipulation was entered into between counsel for the respondent
and counsel for the Board to make certain corrections in the transcript of the testimony
taken at the hearing , and on March 8, 1941, an order was issued by the Trial Examiner
directing that the corrections be made in the transcript of testimony in accordance with
such stipulation
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
support thereof, and, in so far as the exceptions are consistent with
the findings, conclusions, and order set forth below, hereby sustains
them.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT 2
Burson Knitting Company is an Illinois corporation having its
principal office and plants in the city of Rockford, Illinois, where it
is engaged in the manufacture and sale of various kinds of hosiery
and knitted scarves. The respondent has sales representatives whose
activities cover the entire country, with offices at Chicago, Minneapolis,
New York City, and Boston. During 1937, the respondent purchased
yarns (cotton, lisle, wool, silk, and rayon), dyes, chemicals, paper boxes,
and miscellaneous items, representing a total cost of $457,454.24. Of
this amount $359,674.23 was accounted for by goods shipped to the
respondent's plants from points in Rhode Island, New York, Delaware,
Pennsylvania, North Carolina, Tennessee, and Kentucky. Some of
the dyes were shipped from England, Germany, and Switzerland.
During 1937, the respondent's sales aggregated $896,166.26, repre-
senting about 200,000 dozen pairs of hose. Of the total sales, $608,-
607.25 represented shipments from the respondent's plants to points
in nineteen States outside of Illinois. At the hearing in the instant
proceeding, the parties stipulated that the facts adduced in the prior
proceeding regarding the business of the respondent "are [now] sub-
stantially the same and have been substantially the same since that
time to the present time."
II. THE ORGANIZATION INVOLVED
American Federaston of Hosiery Workers, affiliated with the Con-
gress of Industrial Organizations, is a labor organization admitting to
membership employees of the respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
In a prior proceeding,3 the Board found that the respondent had
engaged in and was engaging in unfair labor practices within the mean-
2 The findings in this section are based upon a stipulation entered into at the hearing
in the Matter of Burson Knitting Company and American Federation of Hosiery Workers,
Branch 64 , 19 N. L . R. B. 806. Counsel for the Board and counsel for the respondent
stipulated at the hearing in the present case that the official transcript and exhibits and
other stipulations entered into [ at the prior hearing] may be made a part of this record,
by reference "
8 See footnote 2, supra.
BURSON KNITTING COMPANY 775
ing of Section 8 (1) and (2) of the Act and issued an appropriate
Order requiring the respondent to cease and desist from such unfair
labor practices and to take certain other affirmative action. The
Board's Decision in that case was issued on January 25, 1940, but the
respondent has not complied therewith.
B. The alleged discrimination
The complaint alleges that the respondent discriminatorily laid off
or discharged Magnuson, Soderboom, Claeyssens, and Gumbinas on
or about November 19, 1937, and thereafter refused to reinstate them
because of their union membership and activity and for the further
reason that on April 21 or 22, 1938, they testified before a duly
designated Trial Examiner of the Board in the prior proceeding
against the respondent. The respondent claims that these employees
were laid off because of slack work and that since that time there have
been no jobs available for them.
1. The lay-offs
In October and November 1937, the respondent laid off 14 employees
in the knitting department, including the 4 complainants herein, who
were laid off under the following circumstances :
Peter Gumbinas was first employed by the respondent on February
24, 1920, and worked intermittently as a knitter until his lay7off.4 He
was laid off on the evening of November 4, 1937, by Henry Ferdinand,,
his foreman, who told him to return to the plant the following day for
his pay check. Gumbinas did so, and upon seeing William Rank,
superintendent of the knitting department, asked the latter why he
was being laid off. Rank declined to give any reason, stating that
;`he couldn't answer that question." In May 1938, Gumbinas returned
to the plant seeking work and was told by William S. Parker, the
assistant manager of the plant, that there was no work for him and
that there would not be any "for some time." In or about November
1939, Gumbinas met Parker in front of the plant, but Parker again
declined to put him back to work, stating as his reason for not doing
so that "he [Parker] tried to save all the work for them that is in
the plant." On a number of occasions thereafter Gumbinas applied to
Rank and John Persson, assistant superintendent, for work and on
each occasion was told by them that he could not be put back to work
without the permission of Prescott, the respondent's secretary-treas-
urer and general manager.
Frank Claeyssens was first employed by the respondent on February
19, 1917, and worked intermittently as a knitter until he became ill on
4 Gumbinas worked in the machine shop from November 28, 1927, to May 16, 1928.
and thereafter worked as a knitter.
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
October 20, 1937. This illness required him to cease working and go
to a hospital for treatment. Upon his return home from the hospital,
on or about November 5, 1937, Claeyssens was informed by `h'is' sister-
in-law that the respondent had notified her to tell him that he had been
laid off on the previous day. The evidence shows and the respondent
does not deny that he was laid off on that date. In the latter part of
1938, he went to the plant and asked Rank and Persson to be reinstated.
Each of them told him that there was no work for him at that time.
He again applied to Rank and Persson for reinstatement in the spring
of 1939, and was again refused. In July 1940, he applied to Sandell,
a foreman of the knitting department, for work and was referred by
him to Prescott. He was unable to see Prescott on that occasion, how-
ever, because the latter was otherwise engaged. Claeyssens stated at
the hearing that on account of his illness he could not have returned to
work until June or July 1938.
Oscar Magnuson 5 and Fred Soderboom 6 were first employed by the
respondent on March 1, 1918, and June 12, 1913, respectively, and both
worked intermittently as knitters until their lay-off. Magnuson and
Soderboom were laid off on the evening of November 17, 1937, by
Ferdinand, who suggested that they return to the plant the following
day and obtain their pay checks. Pursuant to this suggestion, Mag-
nuson and Soderboom together returned to the plant the next day.
Upon arriving at the plant, they went to see Rank who gave them
their checks, and at the same time told them that whenever the respond-
ent "got busy again," they would be recalled to work., In June 1938,
having heard nothing from the respondent, Magnuson and Soderboom
again returned to the plant to inquire about their reinstatement.
On this occasion they saw Prescott and requested reinstatement. ' Pres-
cott.examined their employment records and told them that. he could
not reinstate them because he had work only for those knitters who had
more seniority than they.
The evidence clearly shows that following lay-offs for business
reasons, it is the respondent's policy to recall employees as they are
needed, and that it is not necessary for employees to apply for rein-
statement. At the time of the hearing, none of the employees involved
herein had been reinstated.
2. Union membership and testimony under the Act
The evidence shows that at the time of their lay-off the four com-
plainants were active union members and that their union membership
and activities were known to the respondent.
5 Variously designated as Oscar Magnussen and Oscar Magnusen in the respondent's
brief filed with the Trial Examiner.
11 Designated as Fred Soderbloom in the record of the prior healing and in the Board's
decision relating thereto.
BURSON KNITTING COMPANY 777
Magnuson, Soderboom, and Gumbinas joined the Union in May
1937. At about the same time, each of them was requested by the
respondent's supervisory officials to join the Burson Employees Asso,
ciation, herein called the B. E. A., the labor organization which the
Board in the previous proceeding found to be company-dominated.
Each of them refused to join the latter organization. At about the
same time, as the Board found in its decision, Prescott separately
called Magnuson and Soderboom into his office, and asked them if
they were satisfied with their work, whether they had- any grievances
against the respondent, and other questions of a similar nature. In
addition, shortly after joining the Union, Magnuson, Soderboom, and
Gumbinas, each as one of a group of four employees, were called to
Prescott's office, where they were told by the respondent's supervisory
employees that it would not be to their advantage to become or remain
members of the Union.
-The record does not disclose the date on which Claeyssens joined
the Union. It is clear, however, that he joined prior to July 1937,
and that his membership therein was known to the respondent, for
at that time, Werner Sandell, a foreman, asked him to sign a paper
to the effect that he withdrew from the Union with the understanding
that he would not "be discriminated against" by the respondent.
Claeyssens signed the paper which was delivered to Persson by Sandell.
Despite the efforts of the respondent to persuade these employees
to renounce the Union and embrace the B. E. A., and despite the
respondent's open hostility towards the Union, as revealed at the
previous hearing, each of the four complainants continued his mem-
bership in the Union. Each of them voluntarily appeared as witnesses
for the Board at the hearing in the prior proceeding in April 1938,
and gave testimony in support of the charges of unfair labor practices
on the part of the respondent.
3. The respondent's lay-off policy : seniority and marital status
At the hearing, the respondent contended that curtailed produc-
tion made it necessary to lay off five knitters in May 1937, and 14
knitters in October and November of that year, and that the com-
plainants were among the employees laid off in November for business
reasons. The respondent introduced documentary evidence of its
"inventory," "unfilled orders," "orders received," and "dozens knit"
for each month over a period from January 1937 to December 1940,
for the purpose of showing a decline in business during such period.
On the basis of similar evidence in the prior proceeding the Board
held that although the evidence was inconclusive, it could not "be found
that there was no relation between decline in production, revenues;
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or sales on the one hand and the lay-offs on the other ." We find, as did
the Trial Examiner , that a similar situation prevails in this case, and
that the evidence fails to establish the fact that the complainants
herein were laid off in November 1937 for reasons other than a decrease
of business . Consequently, assuming that business conditions neces-
sitated a curtailment of personnel in October and November 1937, the
questions here presented are : (1 ) whether or not the four complainants
were selected for lay-off because of their union membership and
activity, and (2 ) whether or not they were thereafter denied rein-
statement for such reason and because they gave testimony under the
Act.
The respondent contends here, as it did in the prior proceeding,
that it selects persons for lay-off due to curtailed production in ac-
cordance with seniority . In the prior proceeding , the Board found
that the respondent followed seniority in making the May 1937,
lay-offs. In its brief filed .with the Trial Examiner , the respondent
states that it has no "fixed seniority rules" but admits that it follows
"the rule that the last man on is the first man off ." In view of these
facts we find , as did the Trial Examiner, that at the time of the
lay-offs in question the respondent had an established policy of
making lay-offs in accordance with seniority . Accordingly , in order
to determine whether these employees were selected for lay-off and
refused reinstatement on a discriminatory basis, it is necessary to
-consider , among other factors, the seniority of each of them in rela-
tion to that of the employees retained or employed after their lay-off.
The employment records of the four complainants show that, dur-
ing the course of his employment , each of them has on occasions
quit or has been laid off or discharged by the respondent . The same
is true of most of the other employees in the knitting department.
In view of the intermittent nature of its plant employment the
respondent has evolved a formula for calculating the seniority of
its employees . This formula, as stated by the respondent at the
previous hearing, is as follows :
We have considered , in the case of any man who quits his job
or is discharged , he is no longer in our employ.
Any man who has been away for a period of three (3) years
is considered as a new employee , and upon his return we show
him as "Rehired" . . .
In the case of a man who has been laid off but returned in
less than three (3) years, we show him as "Returned" and do
not consider him as a new employee.
On the basis of the above formula and the entire record, the Trial
Examiner found , and we likewise find, that in calculating the sen-
BURSON KNITTING COMPANY 779
iority of its employees, the respondent considers that: (1) seniority
is broken immediately if an employee quits or is discharged or is
absent from the respondent's employ for 3 or more years, regardless
of the reason for leaving his job, but (2) that seniority is not broken
if an employee is laid off and subsequently returns to work within 3
years after his lay-off.
There is no dispute concerning the seniority of three ofthe four
employees involved in this proceeding. The record shows, and the
parties agree, that Gumbinas' seniority dates from September 6,
1928, Claeyssens' from July 16, 1928, and Soderboom's from April
5, 1927.
With respect to Magnuson, however, the respondent claimed at
the hearing that his seniority dates from January 14, 1927, and not
from April 1, 1921, as claimed by Magnuson. The evidence shows
that Magnuson was laid off on July 19, 1924, and the respondent's
own records indicate that the lay-off was intended to be temporary.
He was reinstated on January 14, 1927, and worked continuously
thereafter until his final lay-off in November 1937. During the
1924-1927 lay-off, Magnuson worked for some time for other em-
ployers and did not return to work for the respondent until January
1927, although there was work available at the respondent's plant in
the meantime. The respondent claims that by continuing to work
for other employers when he could have returned to work for the
respondent, Magnuson forfeited his seniority rights. This conten-
tion is not tenable, because the credible evidence shows that other
employees, who worked for other employers during lay-offs, were
permitted to retain their seniority with the respondent. In addi-
tion, the respondent's seniority records, which were introduced in
evidence at the prior hearing, indicate that the respondent did not
then consider that Magnuson had forfeited his seniority rights dur-
ing the 1924 lay-off. In view of these facts and since Magnuson
was absent from work less than 3 years after such lay-off we find,
as did the Trial Examiner, that Magnuson's seniority was not broken
thereby, and that his seniority dates from April 1, 1921, the date on
which he last entered the respondent's employ prior to his 1924
lay-off.
A comparison of the employment records of Soderboom, Gumbinas,
and Claeyssens with those of the-employees remaining in the knit-
ting department after the November 1937 lay-off fails to show that
other employees with less seniority than they were retained in that
department. Counsel for the Board sought to show that Charles
Vickery, one of the employees retained in the knitting department,
had less seniority than any of the complainants. The evidence shows
that Vickery was first employed in 1910, quit in the same year, and
'780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was reemployed on January 5, 1926. Thereafter the only break in
his employment, which might be construed to. terminate his accu-
mulated seniority, occurred on October 10, 1936. The respondent's
,employment records state that Vickery left his job on that date "to
run Son's Business," and further state that he was "Off temporarily"
.and would be "back when through." He returned to work on Au-
gust 9, 1937, and has worked steadily since that date. Accordingly,
it appears, and we find, as did the Trial Examiner, that Vickery
-did not quit his ,job but was granted a leave of absence, which did
-not terminate his accumulated seniority rights. That being true, the
-record shows that Vickery's seniority dates from January 25, 1926,
the date on which he was last employed by the respondent prior to
his leave of absence in 1936. Consequently, he was senior to Soder-
,boom, Gumbinas, and Claeyssens at the time of the November lay-offs.
With respect to Magnuson, as found above , a strict interpretation
-of the respondent's seniority policy fixes Magnuson 's starting date
at April 4, 1921, and accordingly gives him seniority over a number
-of employees retained in the knitting department . Prescott testified,
however, that at the time he selected the employees for lay-off he
.believed that Magnuson's seniority began on January 14, 1927. This
was the date on which Magnuson returned to work after a lay-off of
2 years and 5 months, during which period he held other jobs and had
not returned to work for the respondent, although work had been
available for him. In view of the absence of a showing that the re-
spondent deviated from seniority in the case of any other employee in
making the October and November lay-offs and under all the circum-
stances of the case, we find, as did the Trial Examiner ,` that the
respondent mistakenly, but nevertheless sincerely, believed that Mag-
nuson's seniority dated from January 14, 1927, and not from April 4,
1921. On the basis of the former of these dates Magnuson would not
have been senior to any of the employees, including Vickery, retained
in his department.
Each of the four employees involved herein was married at the time
of his lay-off in November. The evidence shows that one unmarried
employee was retained in the knitting department. This employee,
Fred Olson, was first employed by the respondent in 1916, and ' his
seniority dates from December 9, 1925. Consequently, he was senior
to each of the four complainants.. Counsel for the Board sought to
show, however, that the respondent normally gives preference to mar-
ried men, and consequently deviated from that practice by retaining
Olson. The Trial Examiner was not convinced that such was the
case, nor are we. In the previous hearing, Prescott testified that the
respondent gave preference to married men with respect to lay-offs
BURSON KNITTING COMPANY 781
during the depression beginning in 1930, but further stated that the
1937 lay-offs were made solely on the basis of seniority. At the present
hearing, he again testified that married men were preferred during
the depression, but that such rule was not followed in making the
November 1937, lay-offs. With respect to Olson, Prescott testified
that he had been laid off from November 1930 to June 1933, due to
the fact that he was a single man, while married men with less senior-
ity were retained, and consequently, that in selecting employees for
lay-off in 1937, Olson was retained to compensate him for his lay-off
in 1930. In view of all the circumstances, the Trial Examiner found,
and we likewise find, that Olson was retained for the reason stated by
the respondent.
4. Conclusions with respect to the lay-offs
In view of the foregoing facts, it is plain that the above lay-offs
were not discriminatory . Although 14 employees were laid off in
November 1937, the most that the evidence can be said to show is a
deviation from seniority in a single case , that of Magnuson. And, in
that case , the circumstances were such as to lead us to conclude that
such deviation , was due to an honest mistake in calculating his senior-
ity. Accordingly, we find, as did the Trial Examiner, that none of
the four employees involved herein was selected for lay-off because
of his union membership and activities.
5. The refusal to reinstate
Although the Trial Examiner found that the respondent had right-
fully laid off the four complainants herein, he nevertheless concluded
that the respondent had thereafter refused to reinstate them because
of their union membership and activity and because they gave testi-
mony under the Act. In arriving at this conclusion, the Trial Exam-
iner, in addition to the evidence related above, relied upon the follow-
ing facts : (1) In September 1939, the working hours in the knitting
department, in which the four complainants herein had been employed,
were greatly increased and the respondent continued to operate that
depaTtiiierit bman' overtime basis up to the time of the hearing in this
proceeding; (2) in 1939 and 1940, the respondent assigned a number
of fixers to work as knitters on both a regular and an overtime basis,
for which it paid them the higher wages received by fixers; (3) in
October 1939, the respondent hired Billy Stout, a new employee; (4)
in December 1939, the respondent transferred three winders to the
knitting department to work as knitters; and (5) in March 1940, the
respondent transferred Bertil Nelson, a clerk, to the knitting depart-
ment to work as a knitter. I "
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent contends that the foregoing findings of fact do not
support the conclusion reached by the Trial Examiner. We shall
consider these facts in the light of the respondent's contentions.
(1) The increase in working hours
At the time of the lay-offs in the fall of 1937, the employees in the
knitting department were working 32 hours a week. The hours were
increased to 40 in April 1938 and to 44 in November 1938. On Sep-
tember 9, 1939, however, there was a sharp increase in the number of
hours, the employees in the knitting department being put on a 53-hour
week. In view of the fact that the statutory work week was,reduced
from 44 to 42 hours on October 24, 1939,7 this new working schedule
entailed paying each knitter at a rate of 11/2 times his regular hourly
wage for overtime work after that date. The respondent continued
to operate the knitting department on a 53-hour week until December
16, 1939. At that time the hours were reduced to 45 hours a week,
a schedule which was still adhered to at the time of the hearing.
Apart from the overtime worked by fixers as knitters referred to be-
low, the respondent's pay-roll records show that the knitters worked
overtime 3,310 hours or approximately 78 regular work weeks of
overtime in 1939, and an even greater amount, totaling 4,096 hours
of overtime or approximately 97 work weeks in 1940.
The respondent contended, and the Trial Examiner rejected the
contention, that it decided to work overtime in September 1939 rather
than recall the employees who had been laid off in the fall of 1937
because it believed the increase in business was only temporary, and
further because it wished to stabilize its employment as a means of
reducing the taxes imposed upon it by the Illinois Unemployment
Compensation Act. In th;s connection, Alfred S. Nicholas, the re-
spondent's auditor, testified that he informed Prescott in 1937 that
the respondent could possibly save approximately $11,000 a year in
taxes under the Illinois Act if it stabilized its employment. This
testimony of Nicholas apparently refers to the maximum possible
saving which the repondent could realize. The respondent, however,
made no attempt to show how the figure testified to by Nicholas was
computed. In the prior case,' it was shown that 401 persons were
employed by the respondent on July 1, 1937, but the present record
contains no evidence of the number of persons employed after that
time. In this respect, Nicholas testified that he had not compiled
any records as to the number of employees on the respondent's pay
I On that date the provisions of the Fair Labor Standards Act of 1938, 52 Stat. 1060
et seq , reducing the basic number of hours of work per week from 44 to 42, became
effective.
s See footnote 2, eupra.
BURSON KNITTING COMPANY 783
roll since he had talked to Prescott and Parker in 1937 concerning
experience ratings under the Illinois Act, and that he did not know
whether the number of employees had subsequently increased or
decreased.
In its brief filed with the Board, the respondent admits that the
benefit of reduced taxes depended not only on its own experience
rating but also on the experience rating of all other employers in
the State and that it "could not have proved specifically what amount
it might save by stabilization of employment ." The respondent
further admits that total overtime wages paid during 1939 and 1940
amounted to approximately $7,200 , but points to the fact that if the,
same number of hours had been worked by knitters without over-
time, the cost during the two-year period would have been about
$4,625, or at a saving of only about $2,575. Although the period
during which experience ratings under the Illinois Act are to be
computed covers the years 1940, 1941, and 1942 , the respondent ap-
parently takes the position that it instituted a stabilization policy
in the latter part of 1939 as an anticipatory measure.
Whether an employer chooses to use overtime or hire additional
employees is a matter of policy upon which the employer alone may
decide, so long as the policy is not used as a vehicle for or conceal-
ment of discrimination . While we are not without doubt, the evi-
dence is not sufficient to find that the overtime policy followed by
the respondent in this case was used in such a manner.
(2) Assignment of fixers to knitting department
In 1939 and 1940, the respondent assigned a number of fixers to
work as knitters on both a regular and an overtime basis and paid
them the higher wages received by fixers. The respondent contends
that it did so because there was insufficient work for them as fixers
and because they are skilled employees whom the respondent wished
to retain on the pay roll.
The duty of a fixer is to repair the machines and keep them in
proper working order. His wages are 10 cents per hour higher than
those of a knitter. Prior to the 1937 lay-offs , it had not been cus-
tomary for the fixers to work as knitters, although they were quali-
fied to do such work. The respondent's records show - that over a
period of about 11 months from January 1 to November 15, 1937,
only one fixer did any work as a knitter , and he worked a total of
only 64 hours in that capacity. In 1939 and 1940, however , the re-
spondent employed its fixers as knitters for considerable periods of
time on both regular and overtime work. In 1939 , 12 fixers were
employed as knitters at various times and together worked a total
of 3,096 hour's in such a capacity, 755 hours of which were charged
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to overtime. Similarly, in 1940, 11 fixers were employed as knitters
on various occasions and worked 2,641 hours in that capacity, 960
hours of which were overtime. While knitting, the fixers were paid
their regular fixers' wages with time and one-half for all overtime
work.
The Trial Examiner, while of the opinion that the explanation
advanced by the respondent for employing the fixers as knitters during
regular hours was reasonable, found that the respondent had failed
reasonably to explain their employment as knitters on an overtime
basis, particularly when the respondent paid them overtime at fixers'
wages for such work. We do not agree with this finding of the Trial
Examiner. William S. Parker, the assistant manager of the plant,
testified without contradiction that it takes two to three years to
train a fixer, that the respondent had more fixers at the time of
the hearing than it needed for its current production, and that the
respondent laid off fixers only for cause since, "It costs too much
money to make a new one." In view of this testimony, it is entirely
plausible that the respondent should wish to retain its fixers on the
pay roll by assigning them to work in the knitting department, even
to the extent of paying them overtime on the basis of their regular
wages.
(3) The transfer of winders to the knitting department
On December 7, 1939, the respondent transferred three employees,
John Chapman, Alex Jackson, and Willis Paulk, to the knitting
department. Both Jackson and Paulk joined the Union in 1937, but
soon resigned therefrom and joined the B. E. A., an organization
of which they are still members. Prior to their transfer, they were
employed as winders, a job which entails operating a winding machine
to wind the thread before it is knit and which commands lower
wages than knitting. Although none of these employees was carried
on the respondent's pay roll as a knitter at the time he was trans-
ferred, each of them had at various times previously acted as a knit-
ter and had been so listed on the pay roll. Chapman and Jackson
had, less seniority than any of the complainants, while Paulk, although
senior to Gumbinas and Claeyssens, had less seniority than the other
two complainants, even assuming the respondent's contention as to
Magnuson's starting date to be correct. Except for a short period
in 1940,' when Chapman, Jackson, and Paulk again worked in the
winding department, they continued to work as knitters until the
date of the hearing. While working as knitters, they received knitters'
wages. -
Prescott, the respondent's secretary-treasurer and general manager,
stated at the hearing that the above-named employees were trans-
BURSON KNITTING COMPANY 785-
ferred to the knitting department because there was no work for
them in the winding department, and because he wished to retain
them in the respondent's employ for the reason that they were more
versatile and capable than the complainants.
The Trial Examiner found that the respondent deviated from its-
seniority policy in transferring Jackson, Chapman, and Paulk. In
arriving at his conclusion, the Trial Examiner relied upon the state-
ment made by the respondent in the prior hearing with respect to
the lay-off of employees as proof of the existence of a seniority policy.
The respondent here contends, and we agree, with its contention,
that there is "a great difference between having a rule or method of
making lay offs and having a definite seniority policy." There is
no sho*ing that the statement relied upon by the Trial Examiner,
as set forth in Section III B, 3, above, constituted a blanket seniority
policy. In itself, it purports to provide nothing more than a rule
of seniority applicable solely to cases of lay-off. Nor is there any-
thing in the record to indicate that it was meant to govern other
conditions of employment, such as promotion or transfer to another
position. We find that the rule of seniority adopted by the respond-
ent with respect to lay-offs was not applicable to cases of the trans-
fer of employees to other positions, and that the transfer of Jack-
son, Chapman, and Paulk did not, therefore, constitute a deviation
from that rule.
The Trial Examiner further found, however, that the reasons as-
signed by the respondent for transferring Jackson, Chapman, and
Paulk to work as knitters were not credible on the ground that, since
the winders received 10 cents an flour less wages than the knitters,
he did not believe that Jackson, Chapman, and Paulk, who were
classified as winders, were considered by the respondent to be more
valuable employees than the complainants, who were classified as
knitters. If that be true, the transfers in themselves might serve
as evidence of discrimination, even in the absence of a governing
seniority policy. The record in this case shows, however, that Jack-
son, Chapman, and Paulk had previously worked as both knitters
and winders, while none of the four complainants had ever worked as
a winder. We are not convinced that the additional 10 cents per
hour received by knitters indicated that they were individually con-
sidered as more valuable or more versatile employees by the respond-
ent," and we are of the opinion that the transfers with which we. are
here concerned have been reasonably explained by the respondent
on the basis of the fact that the employees so transferred had previ-
ously received more varied experience than the complainants.
"Rank, superintendent of the knitting department , testified that it would take a new
man from 10 daNs to 2 weeks to learn knitting and 3 weeks or longer to learn winding.
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(4) The employment of Billy Stout
On October 23, 1939, the respondent hired a new employee, Billy
Stout, a former soda-fountain clerk who had had no experience as
a knitter. The respondent claims that Stout was not employed as a
knitter but as an apprentice to learn and eventually take over cer-
tain difficult "chart" work, which was then being performed by
Parker, assistant manager and former superintendent of knitting.
The, respondent's records show that Stout was employed as a
"Learner" on the "knitting Supervision" pay roll. Stout quit his
job on October 22, 1940, and the respondent's records show that he
did so because he was "dissatisfied with -outlook for future." The
Trial Examiner found that Stout, a new employee, was employed
as a knitter and worked in that capacity until he quit his job,in
October 1940.
Prescott, secretary-treasurer and general manager of the respond-
ent, testified that Stout was paid 221/ cents per hour when he was
hired on October 23, 1939, and that his wages were subsequently
increased to 321/2 cents per hour on February 12, 1940, and 40 cents
per hour on June 3, 1940. During this entire period of time, knitters
were paid 51 cents per hour and fixers 61 cents per hour. Rank,
superintendent of knitting, stated that Stout worked only a short
time as a knitter during the period of his employment, and Persson
assistant superintendent, testified that Stout spent only two or three
weeks in the knitting department for the purpose of learning to
operate a knitting machine. From this testimony, and on the basis
of the entire record, we are of the opinion and we find, contrary
to the finding of the Trial Examiner, that Billy Stout was not hired
as a new employee in the knitting department and that he did not
occupy a position which the complainants herein would normally
be expected to fill if they had been recalled.
(5) The transfer of Bertil Nelson to knitting
Bertil Nelson was first employed by the respondent on February
15, 1929, as an office boy and clerk in the knitting department. Nel-
son did not join the Union but became a member of the B. E. A. and
is still a member of that organization. The respondent assigned
Nelson to work as a knitter on March 18, 1940, a job which he con-
tinupd to hold until January 1, 1941, and for which he was increased
to a knitter's wage. At the time of the hearing, Nelson was employed
in his old position. Each of the complainants had greater seniority
than Nelson. At the time he became a knitter, the respondent hired
Robert Lundgren to replace him in his former position in the office
of the knitting department. The respondent's explanation of the
transfer was that Nelson "had outgrown his job, had married, and
BURSON KNITTING COMPANY 787
respondent desired to give him a better position." The Trial' Exam-
iner did not regard this to be an adequate explanation, and concluded
that the transfer constituted a deviation from the respondent's
normal seniority policy.
As noted above in our discussion of the transfer of Jackson, Chap-
man, and Paulk, the Trial Examiner, we believe, was in error in
concluding that the respondent's practice with respect to lay-offs
constituted a seniority policy governing promotions or transfers.
In the absence of such a policy, the explanation offered by the
respondent for the transfer of Nelson is plausible.
In addition to the foregoing, the Trial Examiner found that the
respondent was motivated in its refusal to reinstate the complain-
ants to their former positions because they had voluntarily appeared
as witnesses for the Board in the prior proceeding and had testified
against the respondent. In its brief filed with the Board, the
respondent points to the fact that, of the 14 knitters laid off in
November 1937, 6 of them, including the four complainants herein,
testified at the prior hearing, and that none of the remaining 8 who
did not testify had been reemployed ; the respondent further points
to the fact that 6 other knitters and 3 women employees, who also
testified at the former hearing, are still employed, with the- exception
of one woman who voluntarily left her employment. These facts
tend to show, as contended by the respondent, that there has been no
change in the status of any employee because of testimony given at
the former hearing. Moreover, although there was a showing of
anti-union animus and activities on the part of the respondent in
the prior record, there is an absence of any such evidence in the
present record, and a further absence of any evidence which might
indicate that the respondent resented the fact that the employees in
question had testified before the Board.
The evidence here shows that no new employees were hired to
replace those laid off, and that none of the fourteen employees in
the knitting department who were laid off in October and November
1937, was recalled to work. Moreover, it has not been shown that
the four employees alleged to have been discriminated against here
were entitled to be recalled before any of the other ten who were
laid off during the same period of time.
Although we are not altogether free of doubt, upon the basis
of the foregoing facts and the entire record in the case, we find that
the respondent has not refused to reinstate Oscar Magnuson, Frank
Claeyssens, Peter Gumbinas, and Fred Soderboom because of their
union membership and activity or because they gave testimony under
the Act 10
10 In view of our disposition of the case, it is unnecessary for us to consider other
exceptions of the respondent
451270-42-vol. 35-51
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following
CONciusIONs OF LAW
1. The operations of the respondent occur in commerce, within the
meaning of Section 2 (6) of the Act.
2. American Federation of Hosiery Workers, affiliated with the
Congress of Industrial Organizations, is a labor organization, within
the meaning of Section 2 (5) of the Act.
3. The respondent has not engaged d ii unfair labor practices
within the meaning of Section 8 (1) of the Act by -interfering with,
restraining, or coercing its employees in' the exercise of the rights
guaranteed in Section 7 of the Act, as alleged in the complaint.
4. The respondent has not engaged in unfair labor practices within
the meaning of Section 8 (3) of the Act by discriminating against
Oscar Magnuson, Frank Claeyssens, Peter Gumbinas, and Fred
Soderboom in regard to their hire or tenure of employment or terms
or conditions of employment, as alleged in the complaint.
5. The respondent has not engaged in unfair labor practices within
the meaning of Section 8 (4) of the Act by discriminating against
Oscar Magnuson, Frank Claeyssens, Peter Gumbinas, of Fred Soder-
boom because they gave testimony under the Act, as alleged in the
complaint.
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
complaint against the respondent, Burson Knitting Company, Rock-
ford, Illinois, be, and it hereby is, dismissed.