Gate City Cotton Mills

National Labor Relations Board - Board Decisions

Aug 22, 1946

70 N.L.R.B. 238 (N.L.R.B. 1946)

In the Matter of GATE CITY COTTON MILLS and TEXTILE WORKERS- UNION OF AMERICA, CIO Case No.1O-C-1681 .Decided August 2. ,1946 Mr. William H. Pate , for the Board. Weeks and Candler, by Mr. John W. Weeks , of Decatur, Ga., for the- respondent. Clara Kanwn, of Atlanta , Ga., for the Union. Mr. Herbert C. Kane , of-counsel to the Board. DECISION AND ORDER On April 30, 1916, Trial Examiner Charles E. Persons issued his- Intermediate Report in the above-entitled proceeding , finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the respondent filed exceptions to the Intermediate Report. On July 18, 1946, the Board- - heard oral argument at Washington , D. C., in which the respondent participated. - The Board has reviewed the Trial Examiner 's rulings made at the. hearing and finds that no prejudicial error was committed. The rul-, ings are hereby affirmed. The Board has considered the Intermediate- Report, the respondent 's exceptions , and the entire record in the case, and hereby adopts the findings, conclusions , and recommendations of the Trial Examiner with the additions and modifications hereinafter set forth. . , - 1. We agree with the Trial Examiner that the respondent violated Section 8 (1) of the Act. In arriving at this conclusion , we have not relied upon the finding of the Trial Examiner that the respondent was responsible for the conduct of former Superintendent Reid. We do not believe it necessary, under the circumstances here present, to de- termine the respondent's liability in this regard. Nor have we relied upon the Trial Examiner's finding that the letters and speech of Vice- President Milner, which the respondent contends were a privileged exercise of its right of free speech , by themselves , violated Section 70 N. L. R B., No. 24. 238 1 1 GATE CITY COTTON MILLS 239 .8 (1) of the Act. These utterances were made during the period of the Union's organizational drive and are properly to'be appraised in the context of the respondent's entire course of conduct in regard to that organizational campaign' Thus, the record shows, as the Trial Examiner found, that during this period the respondent discrimina- torily prohibited employee Jackson-a leading member of the Union- from talking with his fellow employees and threatened Jackson with loss of employment because of his union activities; 2 and it further appears that the respondent carried out this threat by discriminatorily discharging Jackson at a later date, as set forth in the Intermediate Report. Also during this period, the respondent unlawfully ques- tioned employees concerning their union membership and sought to induce them to withdraw from the Union. In view of this cogent evidence of interference, restraint, and coercion, and upon the entire record herein, we are convinced that the respondent's afore-mentioned declarations were an integral and inseparable part of its campaign to defeat the organizational efforts of its employees. We conclude, there- fore, that the respondent's entire course of conduct, including the utterances as evaluated in such context, is violative of Section 8 (1) of the Act. The respondent stated to its employees, in connection with its utterances, that they were free to join or not to join the Union. Such assertions are meaningless, however, in the face of the coercive effect of the respondent's other conduct herein. 2. The Intermediate Report inadvertently attributes to Dr. Howard instead of Vice-President Milner the statement, "Go home, go to bed and stay there." Dr. Howard also advised Jackson, "You are a sick man. You ought to be in bed." The Intermediate Report is also hereby corrected to read that Milner, rather than Jackson, called the meeting which Jackson failed to attend; and Jackson's separation date was 1945, not 1942 as stated in the first paragraph of Section C of the Intermediate Report. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Gate City Cotton Mills, East Point, Georgia, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in Textile Workers Union of Amer- ica, CIO, or any other labor organization of its employees, by dis- ' See N. L R B v Virginia Electric & Potoer Company, 314 U S 469, 477, where the Court expressly held that "conduct, though evidenced in part by speech, may amount in con- nection with other circumstances, to coercion within the meaning of the Act " 2 Thus, Superintendent Taylor warned Jackson, "I tell you this talk is going to get you out of a job " Milner similarly threatened, "I want to tell you, Jackson, you are disloyal. You are crooked * * * it is going to get you out of a job . I want you to know that." 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charging or refusing to reinstate any of its employees, or by discrim- inating in any other manner in regard to the hire and tenure of their employment or any terms and conditions of their employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Textile Workers Union of Amer- ica, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities, for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Offer to James E. V. B. Jackson immediate and full reinstate- ment to his former or'a substantially equivalent position, without prejudice to his seniority or other rights and privileges; (b) Make whole James E. V. B. Jackson for any loss of pay he may have suffered by reason of the respondent's discriminatory action against him, 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 the, respondent's discriminatory refusal to rehire him to the date of the respondent's offer of reinstatement, less his net earnings during said period; (c) Post at its plant at East Point, Georgia, copies of the notice attached to the Intermediate Report marked "Appendix B." 3 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the respondent's represent- ative, be posted by the respondent immediately upon the receipt thereof, and maintained by it for sixty (60) consecutive days there- after, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (d) Notify the Regional Director for the Tenth Region, in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. MR. JOHN M. HOUSTON took no part in the consideration of the- above Decision and Order. INTERMEDIATE REPORT William M Pate, Esq., for the Board. Weeks and Candler, by John IV. Weeks, Esq., of Decatur, Ga, for the Respondent. Clara Kann, Esq., of Atlanta, Ga., for the Union. 3 This notice , however , shall be. and it hereby is, amended by striking from the first paragraph thereof the words, "The Recommendations of a Trial Examiner ," and sub- stituting in lieu thereof the words, "A Decision and Order." GATE CITY COTTON MILLS STATEMENT OF THE CASE 241 Upon an amended charge duly filed on February 8, 1946 by the Textile Workers Union of America, CIO, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Tenth Region (Atlanta, Geoigia), issued its complaint dated February 8, 1946, against the Gate City Cotton Mills, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. - Copies of the complaint and notice of hearing thereon were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint, as amended at the hearing, alleges in substance (1) that the Respondent discharged James E V. B. Jackson on November 30, 1945, and thereafter failed or refused to reinstate him for the reason that he joined and assisted the Union and engaged in other concerted activities for the purpose of collective bargaining and other mutual aid and protection, and (2) that the Respondent, through name(] officers, agents and employees, by stated acts has interfered with, restrained, and coerced its em- ployees within tile meaning of Section 8 (1) of the Act On February 20, 1946 the Respondent filed its answer in which it admits the facts alleged in the complaint as to its corporate organization, the character of its business, and the facts set forth in the complaint which establish that the Respondent is engaged in interstate commerce within the meaning of the Act. However, the Respondent denies that it has committed any of the unfair labor practices alleged in the complaint. Pursuant to notice a hearing was held on March 26 and 27, 1946, at Atlanta, Ga., before the undersigned, Charles E. Persons, the Trial Examiner duly desig- nated by the Chief Trial Examiner. The Board and the Respondent were repre- sented by counsel and the Union by one of its officials Full opportunity to be beard, to examine and cross-examine witnesses and to introduce evidence bearing on the issues was afforded all parties. At the beginning of the hearing the Re- spondent moved for continuance because the illness of its Executive Vice- President, I. C. Dlilner, who was the chief executive officer of Respondent's plant, had interfered with the preparation of Respondent's defense. This motion was denied with the proviso that after the completion of the Board's presentation, further suggestions or motions by the Respondent would be entertained. The Respondent did not renew its motion for continuance.' The Board moved to strike the name of Robert Johnson from those listed in paragraph 7 of the complaint as responsible for acts violative of Section 8 (1) of the Act, and to add the name of Lee Hendricks. This motion was granted over the objection of the Respondent Respondent thereupon moved for a continuance, pleading sur- prise . This motion was, at the time, taken under advisement and denied on the conclusion of the Board's presentation in chief. At the request of the Respondent, and without objection, witnesses were excluded from the hearing room until called to testify. On April 15, 1945, the undersigned received from the Respondent a motion, accompanied by an affidavit, which the Respondent requested be admitted in evidence and made a part of the record. As an alternative the Re- spondent requested that the deposition of the signer of the affidavit be taken, or ' This proceeding was first noticed for hearing on February 25, 1945 , on February 19 the hearing was postponed to February 28 , on February 27 to March 20 and on March 19 to Maich 26, 1945 The Respondent admitted at the hearing that each of the last three postponements had been made on its motion. 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as a further alternative that the hearing be reopened for the purpose of taking his testimony. This motion was referred to the Chief Trial Examiner who, on April 16, 1946, advised the Union and the Board that objections, answers or sug- gestions with reference thereto would be received until the close of business on April 17, 1946. Both the Union and the Board duly filed objections to the Re- spondent's motion. On April 19, 1946, the Chief Trial Examiner issued a tele- graphic order, overruling these 'objections, reopening the hearing "to take testi- mony of LeRoy Hayes and such other relevant evidence as the parties may seek to adduce," and continuing the designation of the undersigned as Trial Examiner. On April 24, 1946, the hearing was reopened in accordance with this order. The Board and the Respondent were represented by counsel. Each presented further evidence. Full opportunity to be heard, to examine and cross-examine witnesses and to introduce evidence bearing on the issues was afforded the parties. At the conclusion of the reopened hearing the Board moved to conform the plead- ings to the proof as to such minor details as dates, spelling of names and similar errors. This motion was granted without objection. At the conclusion of the presentation of testimony, all parties waived oral argument before the under- signed. They were duly advised that they had the privilege of presenting briefs for the consideration of the Trial Examiner. No briefs have been received. Upon the entire record in the case and from his observations of the witnesses, the undersigned makes the following : FINDINGS OF F_ c'r I. THE BUSINESS OF THE RESPONDENT' Gate City Cotton Mills is a Georgia corporation operating a plant at East Point, Georgia, where it is engaged in the manufacture of carded cotton yarn. During the 12-month period ending March 1, 1945, the Company purchased raw materials valued in excess of $750,000,3 over 60 percent of which was shipped to it from points outside the State of Georgia. During the same period, the Company manu- factured products valued in excess of $2,000,000, over 60 percent of which was shipped to points outside the State of Georgia. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED Textile Workers Union of America, affiliated with the Congress of Indus- trial Organizations, is a labor organization admitting to its membership em- ployees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion The Union began its organizational campaign late in February 1945. On February 24, 1945, the Union sent a letter to W. C. Bradley, president of the Respondent, in an envelope addressed to the mill, advising that "a number" of 2 These findings are based upon the data presented in the complaint, which were ad- mitted by the Respondent in its answer, and upon the statement presented by the Board in its Decision in a representation proceeding decided April 30, 1945 (61 N L. R. B. 820). The Respondent stated at the hearing in the instant proceeding that these data lead not substantially changed since the date of the Board Decision. ' The complaint is in error in quoting this amount as $250,000. GATE CITY COTTON MILLS 243 the employees had joined the Union and that under the provision of the Act it was unlawful to discharge them for union activity. Since this letter was ad- dressed to Bradley it was not opened at the mill but was forwarded to him at Columbus, • Georgia. It was not returned to the mill office until March 4, 1945. At this time it came to the attention of I. C. Milner, executive vice president of the Respondent, who was the official directly in charge of the mill According to his uncontradicted and credited testimony, this letter furnished his first knowl- edge of the Union's activities among the employees. After personal solicitation of employees the first union meeting was held at an employee's home in the mill village on March 3, 1945. In the following week, on March 9, 1945, leaflets were distributed at the mill gate by Mrs. Clara Kanum, a field representative of the Union and its representative of record in the instant proceeding With other matters this leaflet announced a meeting on the following day at 1: 30 p. m. "at John Boynton's house, corner Elm and Main Streets, Gate City Village." Thereafter union meetings were held at frequent intervals, usually- at an employee's home. The Respondent, through Milner, very promptly injected itself into the discus- sion of the Union's organization. It is fair to say that it made a vigorous anti- Union effort. Under date of March 12, 1945, Milner personally distributed the following letter to the employees : To Our Employees: I have heard that a Labor Union, the T. W. U. A., is campaigning for mem- hers among you. Some of you have asked my opinion as to whether you should join a Union or not. I am, therefore, writing you this letter giving you my opinion, so that I will not be misunderstood. You have the right to join a Union or not as you wish and I am not inter- fering with that right, but if I were in your place, I would not 'There is nothing a Union can offer you in this'Mill that you cannot have just as well without paying Union dues, and if a Union is made the bargaining agent for you, judging from the attitude of the International Union, it will mean a strike. Mr. Emile Rieve, the President of the T W. U. A, has already re- leased a hundred thousand textile workers from their no strike pledge, virtually threatening to strike all mills in which the Union is the bargaining agent. , The Union may say that it can get you an increase in wages. This is not true. Only the Government can now authorize any increase in wages, and our employees have always participated in general increases authorized, without petition on their part. You will not have to pay Union dues to get it. ' The Union says it can settle your grievances with the Company. You know that you have always felt free to bring any complaint to me or to any other official of the Mill and we have always tried to settle it satisfactorily. If the Union is made your bargaining agent, then we will be forbidden to settle complaints with you directly, but only thru the Committee of the Union. We feel that we have a greater interest in you than some dues collecting com- mittee of the Union. Ypur membership or non-membership in a Union will not affect your em- ployment with us. The Union may tell you that you cannot hold your job unless you join the Union. This is not true. President Roosevelt has said that so long ,as he is President no person in the United States will. be required to join a Union to hold a job . No one in Gate City will ever be required to join a Union to hold a job here. If you join a Union it will not affect your job; if you do not join a Union it will not affect your job. 712344-47-vol. 70 -17 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD You have asked for my opinion and I have given it to you and you can do as you wish, but I would dislike to see our harmonious relations disturbed by having the Union designated as your bargaining agent. Sincerely yours, GATE CITY COTTON MILLS, Sgd. I . C. MILNEn, Executive Vice-President. Again on March 30, 1945 he made further distribution of a letter reading as follows : - To Our Employees: The Union is trying to bolster its losing campaign for members by stating it already has a majority of our employees signed. If they already have a majority, they would not be begging for more members. Since they do not have a majority, the Management will not meet with them to bargain on a contract. If the Union gets a majority in an election, then we would be required to bargain with them ; but it does not mean we will have to agree to everything they propose. Now, in making any agreement for your working conditions, would you prefer to SPEAK FOR YOURSELVES and have some voice in it as you have had in the past, OR Would you prefer to turn over those rights as the Union wants you to do, to some committee of men in New York. Horace White and your local com- mittee cannot propose a contract for you. White receives his orders from the T W. U A. officers in New York and can't agree to anything unless in- structed by these officers. And who are these officers that will attempt to tell you what to do if you vote to make the Union your Bargaining Agent? They.aire Emil Rieve, Gen. Pres of T. W. U. A Isadore Katz, Counsel for T. W. U. A. George Baldanzi, V. Pres. John Chupka, V. Pres. Sander Genis, V. Pres. Joseph Knapik, V. Pres. - Milton Rosenburg, V. Pres. Q Solomon Barkin, Research Director. Do THEY know your wishes better than you know them yourselves? If you sign a card or vote for the Union as bargaining agent, then you will have no right, according to what `the Union says, to, settle your grievances with us ; but those officers in New York will tell you what td do ! You have a perfect right to join a Union if you want to and have Horace White's New York bosses tell you what to do. If you don't want them to represent you, then don't sign the authorization-card. Very truly yours, GATE CITY COTTON MILLS, Sgd. I. C. MILNER, Executive Vice-President. Upon a representation petition filed by the the Union the•Board held a hearing on April 21, 1945. Pursuant to the Board's Decision and Direction of Election 4 issued April 30, 1945 an election was held on May 17, 1945. The Union lost this election by a substantial majority. Matter of Gate City Cotton Mills, 61 N. L. R B. 820. GATE CITY COTTON MILLS 245 On March 28, 1945. slightly more than three weeks after Milner admittedly learned of union activity in the plant, the Respondent requested approval from the National War Labor Board, herein called N. W. L. B., of a wage schedule for the mill. On April 6 the Respondent amended this application in order to include a plan which provided one week's vacation with pay, or vacation pay in lieu thereof, for those who had worked 1900 hours or more in the year prior to July 1, 1945. This amended application was approved by N. W. L. B. on April 14, 1945. "A few days later," as Milner testified, this vacation plan was announced by Milner to the employees who had been assembled for a "Soldiers of Production" program. As further evidence of the Respondent's interference with union activities the Board placed in evidence 15 signed withdrawal slips each accompanied by an envelope in which it was mailed to the Union. These slips carry a statement identical in words and composition, reading : Please Withdraw My Name From the T. W U. A. and Cancil (sic) My Membership Card The slips were undated The envelopes show that all were registered. Ten were mailed, as the Post Office stamps disclose, on April 20, 1945. These bear con- secutive registry stamps numbered 1616 to 1625 inclusive. Three additional with- drawals were mailed on April 21, 1945. These bear registry numbers 1627, 1629, and 1629. The two remaining withdrawals were not mailed uptil April 27. These were registered as numbers 1648 and 1649. All of the envelopes bear a return address either to the Gate City Cotton Mills, of to the Gate City Mill. Comparison of the handwriting and the spelling' of names' on the signed withdrawal slips and on the return addresses indicates clearly that the signers of the withdrawal slips did not write the return address The same statement is true as to the addresses on the envelopes. Lillie Rutledge,° who lived in the Respondent's mill village, gave a detailed account of the conditions under which she signed a withdrawal slip. Together with six brothers and sisters she occupied a three-room house, assigned them by Milner, about March 1, 1944 They made repeated requests of Milner , Superin- tendent T P. Taylor and Niglit Foreman J. W. Nabors' for more commodious living quarters . They were at first refused on the plea that a larger house was not available. When a house became available Rutledge applied to Taylor. Her credited testimony reads : Well, I asked him about the house and he said he had already promised the house away ; give it away you know. And then he come out to my work, where I work, and he said, "I am going to give you-all the house and even give you the paint to paint it." Rutledge's testimony continues : A. I went on back to my work and saw Mr. Nabors-he went out in the office. Then he came back. Q. Was it just a few minutes later? - A. Yes, sir. Q. And when Mr. Nabors came to you, what did he say? 6 Gertie Carroll signed her family name with two l's, the return address has but one- Both Clara , Vernon and B. H. Carl Bailey signed their family name as indicated, the return address was "Bally " Edgar Rogers ' name appears on the return incorrectly a6 "Redgers ." Paul E Jones ' name was written Paul L Jones on the return. 6 Since signing the withdrawal Rutledge had married and her testimony is recorded under her married name Lillie Modell Crane. 7Taylor left the Respondent ' s- employ and was succeeded as superintendent on October 15, 1945, by Nabors. Nabors had previpusly been night foreman. i 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. He asked-me, did I belong to the Union and I said- Q. And what did you tell him? A. I said, Mr. Nabors, L ain't going to tell you no story. I belong to the Union. He said, "Well, I will give you a paper to get out of the Union and help you get the house if you will get out of it." And so I signed the paper he gave me. He said, "Now Lillie, I am going to register this letter up there for you and'don't you tell nobody I packed you out of the Union." He said, "If you do, they will take us to the State Capitol and shoot us." Q. Did you give Mr. Nabors the papers then? A. I gave him the paper back. Rutledge identified her signature on a withdrawal slip mailed on April 21, 1945 and registered under number 1627 e There is corroboration of Lillie Rutledge's testimony in that of her sister Annie Rutledge who told of their difficulties with inadequate house room and the refusal of Milner and Taylor to remedy the situation. She gave the following testimony relative to a conversation with Nabors, while she was working, "pretty close to the time of the election." He [Nabors] came to me and he said, "Annie, do you belong to the Union?" and I said, "I certainly do, and I ain't the only one, that belongs to it." And he said, "If you pull out of the Union I will give you a larger house." . . . And I said, "Well, I will make up my mind and let you know and I ain't never made up my mind yet." Nabors was called as a witness by the Respondent. He was asked whether be had ever promised any employee a house in the mill village, or a larger -house, if that employee would withdraw from the Union. He replied, "No, sir. I did not. Never had any such conversation with anybody." However, when Nabors was shown the withdrawal slip signed by Lillie Rutledge he admitted that he had previously seen it saying, "I think the lady brought it to me and handed it to me " He stated further that he had then laid it down on a spinning frame and left it there. After considering the mutually corroborative testimony of Lillie and Annie Rutledge, its detailed and persuasive character, the partial admissions of Nabors and the demeanor of these witnesses, the undersigned credits the testimony of Lillie and Annie Rutledge and rejects such testimony by Nabors as is in conflict therewith. J. L ' Cochran, -whose withdrawal slip`was mailed on April 27, 1945, in an envelope registered under number 1648, testified that he had never joined the Union. He worked regularly on the day shift but frequently worked extra time on the second shift. It was Cochran's uncontroverted and credited testimony that Lee Hendricks, the fixer on the second shift, about the•time of the election; brought him a copy of the withdrawal slip while lie was working, stating that he had heard Cochran's name was -on the union lists. He asked Cochran if he wanted to sign a withdrawal slip "to get [his] name off of the Union " Coch- ran agreed to do so and after signing it gave it back to Hendricks. He did not thereafter see it until questioned about it by the Board's field examiner. Hend- ricks was not called as a witness and no statement was made that he was unavailable. The Respondent contends that Hendricks was not a supervisor and that it is not responsible for his actions. The night shift had but one supervisor, who e Rutledge testified that Kanun later came to her with this withdrawal and asked if she sent it in At this time Rutledge told Kanun that she had given it to Nabors "and he registered it up there." GATE CITY COTTON MILLS 247 at the time material here, was Foreman Nabors. He exercised general super- vision over the second shift and the various foremen were charged with responsi- bility-for the efficient operation of their respective departments on both shifts. However, it is clear that in the absence of the department foreman and -of Nabors the employees on the second shift were accustomed to turn to Hendricks for needed instructions. Thus Cochran testified that Hendricks "looks after the second [shift] sort of like a second hand, I reckon." When asked whether Hendricks told people what to do, Cochran replied : "No, he didn't exactly tell them, he just-if he wanted them to do anything, he would go around and tell them that Davison [Card Room Foreman Will Davidson] ° had told him to tell them." Similarly Employee B. H Duncan, who had worked 3 years in the card room, testified as to Hendricks' position : Well, after 6. 00 o'clock he looks after the . . . in other words, I reckon you might say he is almost boss. He looks after everything, keeps the hands straight and keeps the machinery running and gives orders, and things like that. -Duncan testified that Foreman Davidson, "goes home around 6:00 o'clock at night." The second shift continued until 10: 00 p in. Under these circumstances the undersigned finds that the employees "would have Just cause to believe" that Hendricks was "acting for and on behalf of the management," and that Respondent's employees because of his interference "did not have the complete and unhampered freedom of choice which the Act con- templates " 10 Mattie M Cox, at the time of the hearing, had been employed in Respondent's winding room about 5 years Until February 28, 1945 William A. Reid had been superintendent of the mill On that date he retired and since had had no official connection with the Respondent. Cox joined the Union on a date not stated. She testified-that "about.a month">after;Reid's retirementlie -came to her in the winding room and gave her a withdrawal slip which she signed. Reid then took the slip with him and she had not, seen it since Cox testified, "I don't know that I even read [the slip] " However, she understood its effect was to cancel her membership in the Union'1 The Respondent contends that it has no responsibility for Reid's actions since he had retired. However, Reid had been superintendent for "about 10 years" and is clearly an individual whom the employees might fairly understand to be 0 Davidson was named in the complaint as "Will Davis", and was frequently referred to by witnesses as "Davison." Since there was no other employee with a similar nanpe, it is clear that Davidson was the supervisor designated 10 See International Association of Machinists, at at. v. N. L R . B , 311 U. S. 72, 80. The Supreme Court was dealing with an attempt by an employee to promote a company union . The pertinent passage reads The employer. however, may be held to have assisted the formation of a union even though the acts of the so-called agents were not expressly attributable to him on strict application of the rules of respondent superior. We are dealing here not with private rights nor with technical concepts pertinent to an employer's legal responsi- bility to third persons for acts of his servants, but with a clear legislative policy to free the collective bargaining process from all taint of an employer's compulsion, domination or influence The existence of that interference must be determined by a careful scrutiny of all the factors. often,subtle, which restrain the employee's choice and for which the employer may fairly be said to be responsible Thus where the employees would have just cause to believe that solicitors professedly for a labor organization were acting for and in behalf of the management , the Board would be justified in concluding that they did not have the complete and unhampered freedom of choice which the Act contemplates ii The withdrawal slip of Cox is not included among those in evidence. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD acting for the -Respondent. Moreover, Reid on another occasion intervened in similar fashion with one of its employees At that time he accompanied the employee to Milner's office. The incident was set forth in the uncontroverted and credited testimony 11 of employee John T. Boynton as follows : Mr. Reid-the superintendent there, or had been super., asked me to go in and talk with him, and why I was doing that way, and Mr. Reid came, to my house after I got off from work, and asked me'to pull out of the Union. He said he didn't want me to get into any trouble. And so I said I would study about it, and then later, a day or two later, he asked me if I would go into Mr. Milner's office, and I said I would, and he \went into Mr. Milner's office with me. Boynton's conversation with Milner referred mainly to his occupancy of a company house but there was incidental reference to Boynton's union member- ship. Reid remained in the office during the interview. Under these circum- stances the undersigned finds, under the authority set forth above, that the Respondent is responsible for Reid's solicitation of Cox and Boynton to with- draw from the Union. - On May 16 Milner read a speech to the employees assembled in the plant on company time. Printed copies of the speech were distributed to all the employees present. At this time, Milner was primarily interested in the election to be held next day but he referred to the vacation plan as indicated in the following excerpt from his speech : The Union will say it can get a vacation for you. You have already been told the conditions under which you will be given a week's vacation with pay this summer. No Increase in Pay Can Be Granted Without Government Approval. So you see, the whole thing boils down to the fact that the only advantage (?) the Union can give you is the privilege of paying dues for the benefit of their New York bosses Further excerpts from Milner's May 16, 1945 speech read as follows:" You have the right, as you have had in the past, if you do not select the Union as your Bargaining Agent, to do your own trading and make your own contracts and ' agreements without paying any dues to anyone for this privilege. The question for you to decide is; whether it will be to your interest for you to vote for a Union to represent you, and to pay dues to it, and surrender your rights to make your own decisions; ' or whether you prefer to remain independent, pay no dues, and take up your agreements and differences with me, individually, without any outside influences from the New York bosses of the Union. You may have been told that the Union is a Democratic organization and that the members of the Local Union will be allowed to frame policies and control the affairs of the Local Union. If you have been told that, we think you have been misled. Most all Union Policies Are Dictated by the National Officers of the Union, and the local members do Not Have Anything to do With Formulating Union Policies. You should carefully consider what this thing of being a member of the Union, In Good Standing, involves. To be in good standing, you will have to pay all the dues, fines, and assessments, according to what the National Offices Think. The War Labor Board would require the Company (against 12 Reid was not called as a witness and no showing was-made that he was unavailable. 11 The speech in extenso is "Appendix A" of this Intermediate Report. GATE CITY COTTON MILLS _ 249 its will) to deduct from your pay checks the dues, fines and assessments which may be levied on you by the New York Union Officers. Milner warned the employees that the coming of the Union might involve strikes. He referred to a strike in a neighboring city cotton mill which had been in effect "some six weeks." The employees there, Milner asserted, "are not now receiving a dime, but are eating white beans doled out to them by the Union bosses, while the Union bosses are eating off the fat of the land in New York City " - Milner further stated : ... You [the employees] can decide. for yourselves whether the best interests of the Company are your best interests. We do not hesitate to state that in our opinion you will be better off without a Union. After considering Milner's letters and speech together with the Respondent's implication in the organized effort to secure and mail withdrawal slips to the Union, the undersigned is convinced and finds that the Respondent's acts and statements reveal a design to frustrate organizational activity among its em- ployees and to interfere with, restrain and coerce them in the exercise.of the rights guaranteed to them by the Act. Securing and announcing the approval by N. W. L. B. of the vacation plan during the period when the Board's administrative processes preliminary to the holding of an election had been set in motion and reemphasizing this matter in Milner's speech on May 16, 1945 on the eve of the election must be held, under controlling Board precedents, to constitute an attempt to persuade the Respondent's employees that such privileges could be obtained without collective bargaining and thus to influence them to vote against the Union.'4 Both of Milner's letters and his speech go beyond a mere expression of opinion such as the doctrine of freedom of speech justifies. He is patently at pains to sow distrust of the national officers of the Union in the minds of the employees. He appeals to sectional prejudice against residents of New York City; repeatedly emphasizes the possibility of a strike under union representation; laid stress on the item of union dues and other union levies, and contrasted the past prac- tice of handling grievances directly as individuals with the loss of independence involved in coming under the control of policies "dictated by the national officers of the Union." In all of this Milner not only manifested his anti-union attitude but opposed the declared policy of the Act to promote the development of col- lective bargaining. The Respondent's participation in the centrally directed campaign to secure withdrawals from the Union gave pointed notice to the employees of the purport of Milner's utterances. It will be noted that his letters on March 12 and 30, 1945 were followed on April 20 by the mailing of 10 withdrawals to the union office. This was the day preceding the Board's hearing in the representation proceeding. Three additional witdrawals were mailed on April 21, including one signed by Lillie Rutledge which Foreman Nabors is shown to have solicited per- sonally. And of the final 2 withdrawals mailed on April 27,- a direct connection 14 See Matter of American Ott Company, 41 N. L. R. B 1105, 1117, and Matter of Bear Brand Hosiery Co, 40 N. L R. B. 323, enf'd 131 F. (2d) 731 (C C. A 7). The Board said: The time and circumstances of the publication of the various notices described above, considered in conjunction with what the respondent otherwise said and did, and the implications contained therein that the employees would gain nothing by joining a labor organization, made them intimidatory, coercive, and violative of the Act. Cf. Matter of Shreve and Company, 57 N. L. R B 1487, and Matter of Continental Oti Company, 58 N. L. R. B. 169, wherein the Board set aside elections because of similar actions of employers. 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Respondent is proven for that of Employee Cochran through Hendricks, machine fixer on the second shift. Purther connection of the Respondent with this closely organized campaign is shown in the solicitation of withdrawals from Employees Cox and Boynton by retired Superintendent Reid. Although recently retired, Reid is plainly shown to have continued active in Respondent's affairs ; to have had access to Respondent's offices and to have been a welcome participant in a business conference. Under these conditions the undersigned concludes and finds that the organized campaign to secure withdrawals from the Union was carried on with the knowledge and active participation of supervisors and agents of the Respondent. The undersigned finds that by Milner's circularizing the employees with his anti-union letters of March 12 and 30, 1945; by Respondent's participation in the campaign to secure withdrawals by union members; by questioning employees as to their union memhershhip ; by announcing the vacation plan during the period immediately preceding the Board election; by Milner's speech on May 36, 1945, the afternoon before the Board election; and by the totality of these acts and utterances the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. - . B. Alleged acts of interference, restraint, and coercion The Board contends that the Respondent threatened Employee John T. Boynton with eviction from his company owned house because of his union membership and activities and particularly because a union meeting was held at his home on March 10, 1945. As stated above this meeting was publicly announced through the distribution of-circulars at the mill gate on March 9, 1945. This was the second union meeting held. It appears that Boynton occupied the house in question together with his family, five members of which were employed in the mill. Boynton joined the Union and thereafter carried a union book and "signed a lot of them [employees] up for the Union."' Under date of March 2, 1945 Milner sent Boynton a letter calling attention to the record of absenteeism by two members of his family. The letter concludes : This Company is badly in need of the services of people who will work regular and, therefore, before taking any action we want to hear any excuses you may offer as a reason for such high absenteeism on the part of some of the people in your family. On March 9, 1945, Milner wrote again calling Boynton's attention to his failure to submit excuses for the absenteeism of his family and stating, "We therefore, request that you vacate said premises at once." On March 28, 1945, Milner wrote to Boynton detailing the absentee record of the 5 employed members of the family. This letter states : This communication is for the purpose of again calling to your attention the extreme absenteeism existing in your family and to serve as a warning to-you and those in your household of the lack of anything like reasonable cooperation on their part. - Boynton, as a Board witness, admitted that it was a long established rule of the Respondent to rent its houses only to its employees. He was asked whether the statements in the letter of March 28 regarding his family's absenteeism were correct and answered, "Yes, they was absent a good deal, there. I don't know exactly how many days, and so on, but they were absent a lot." The undersigned notes that the action taken by the Respondent followed its established policies in renting the houses and combating absenteeism. The GATE CITY COTTON- MILLS 251 record contains a letter written by Milner to Boynton on August 18, 1943 making similar complaints of absenteeism and insisting "that you [Boynton] vacate this house at once." The first of the three letters written to Milner in March 1945, is earlier than the date when Milner is shown to have had knowledge of the union activity in the mill. When Boynton visited Milner's office with Reid, Milner disclaimed knowledge of Boynton's union membership when the letter was written.16 It further appears that Boynton was never evicted. When the other members of his family later ceased to be employees of the Respondent 1° it was arranged that Boynton move to, a smaller house suitable for his occupancy. Since Boyton's membership and activity in the Union had not ceased and none of the withdrawal slips in evidence were signed by any member of this family, the undersigned finds clear evidence that the action taken by the Respondent was based, as stated in its communication to Boynton, on his family's record of absenteeism. Accordingly no merit can be found in this contention of the Board. The Board further contends that the Respondent threatened B. H. Duncan with eviction from his company house as a result of his union activities. Dun- can had been employed in the card room for about three years. He joined the Union and signed up an unstated number of employees. Under date of March 2, 1945 he received a notice from Milner stating that it was contrary to the Re- spondent's rules for his wife, who was an employee of a cotton mill in a nearby city, to occupy a company house. Milner requested that Duncan vacate the house at once Duncan testified that lie never talked with Milner about this notice but that he had later received a notice from a "rental place" which he could not certainly identify, that Milner had withdrawn his notice. Mrs. Duncan was variously em- ployed thereafter but never by Respondent. Nonetheless the Duncans were not evicted from the company house The undersigned notes that Milner's actions antedated his knowledge of the Union's organizational campaign and was in line with the established practices of the Respondent: Under these circumstances no merit is found in this contention of the Board. C. The discriminatory discharge James E V. B Jackson was first hired by the Respondent on January 14, 1942, and continued in its employ until October 26, 1945. His work during this period consisted of taking the filled cones from all the winders, except 4, in the wind- ing room, marking the cones with his own number, that of the operator, the size of the yarn and whether the yarn was warp or filling. Jackson placed the spools of yarn in crates for removal to the drying room and later to the packing room. Jackson's foreman, Thomas V Bell, testified that his ,job was what you might class as a key job It is a particular job and you can't jerk up just anyone to put on it to run it." Jackson was a cotton mill employee of some 30 years' experience. In the course of this service he had been a machine fixer and second hand in both carding and spinning rooms. There is no contention by the Respondent that Jackson had been either inefficient or inattentiie to his duties. He claimed for himself, without denial by the Respondent, and the un- dersigned finds, that in the 15 months preceding his separation from his employ- ment on October 26, 1942, he had not lost a single day from any cause." Such 15 Boynton so testified 1° Boynton 's son entered the armed service, his two oldest daughters moved away, and his wife ceased to work 17 Jackson gave undenied and credited testimony , that on one occasion during the first two years of his employment Milner came to him and said, "Mr. Jackson , a man working as regularly as you do deserves a dollar." Milner then gave Jackson a dollar bill. 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an attendance record has added significance since, as the record reflects, the Re- spondent had chronic and difficult problems of absenteeism during the period material in this proceeding. In March or April, on his own initiative, Milner on 2 occasions suggested that Jackson might be promoted to foreman of the wind- ing room. Jackson's unrefuted and credited testimony as to the first of these occasions reads: [Milner] said, "Jackson, you know I have thought of you lots of times and have been thinking of you lately, . . I believe you would make a good man to run this winder, . . . I want you to get in to the people and I am going to give you this winder." I says, "Well, Mr Milner, I have never asked for it but if you would do that I would treat the help right and I would not discriminate between them and I would stop a lot of this partialities that's being used up here" Jackson further testified that about a week before the'Board hearing on April 21, 1945, Milner again referred to the matter and assured Jackson that he intended to make this promotion. Jackson joined the Union in March , He kept a book of applications at his home which were signed by several employees who called there At this time Jackson lived in a company house in the mill village. Jackson attended the Board hearing on April 21, 1945 where he was closely associated with the union representatives and came under the observation of Milner and Respondent's -Counsel Weeks." Later Jackson served on the committee which arranged for the election and was union observer during the voting It is clear and the under- signed finds that the Respondent had knowledge of Jackson's union membership and activity. On the Monday or Tuesday following the hearing i e on April 23 or 24, 1945, Milner came to the winding room and said to Jackson: I don't know what's going to happen to the Company. It looks like the C. I O. and the Bolsheviks and the foreigners are trying to run it down South. We don't want it. It was Jackson's testimony that after the Board hearing and prior to the elec- tion both Thomas V. Bell, overseer of the winding room, and Alger Jones," a filer in that room, repeatedly told him that they had orders to see that he did not talk to the other employees. Moreover they held him under surveillance to see that he did not violate this instruction. Jackson supported this general testimony with detailed instances. On one occasion shortly before the election when Jackson was talking with winder hand, Susie Etris, Bell came to them, pointed to a posted election notice and said, "Mr. Jackson, . . . That notice over yonder applies to you just like it does to me " Etris then said, "The Union wasn't mentioned." Bell said, "Well, he can't talk" and thereafter warned nearby operators that talking to Jackson was forbidden. Just before the election, Jackson protested to Jones that his orders not to talk to the employees were embarrassing and were misunderstood by his fellow em- ployees. Jones then stated that he had explained to these employees that Jackson "had orders not to speak to anybody" and stated further that he (Jones) had orders not to talk to Jackson Jones further stated to Jackson, " It is going on 18 At the reopened hearing, Foreman Bell testified that he first learned that Jackson was active in the Union when Jackson attended this Board hearing. ' 10 While Jones' position was that of machine fixer in the winding room and he was not of supervisory rank, it is clear that he acted on this, and other occasions detailed below, as Bell's representative and carried out Bell's in'tructions . Under these conditions the undersigned finds that the Respondent is responsible for the acts and utterances of Jones. GATE CITY COTTON MILLS 253 as long as you stay there They ain't going to let up on you . . . Those are the orders I get from Bell " Jackson was summoned to the office by Superintendent T. P. Taylor, sometime between the Board hearing on April 21 and the Board election on May 17, 1945, and accused of soliciting union memberships in the winding room. Jackson denied that he had done so Taylor warned, as Jackson's credited testimony reads, "I tell you this talk is going to get you out of a job" Neither Jones nor Taylor was called as a witness No showing was made that they were unavail- able Milner made a general denial that he had issued such instructions. Bell was called as a witness for the Respondent in the reopened hearing. He testified that immediately on assuming his duties as overseer he had instituted a rule 20 against anyone hindering the winder operators, who were women, by talking to them while they were engaged in their duties It was Bell's testimony that Jackson infringed on this rule more frequently than others Bell corroborated Jackson to the extent of stating that a conversation with reference to the Union involving Etris occurred "about a week" before the Board election. Under these circumstances, after considering the demeanor of the witnesses involved and the setting of this testimony in the full record, the undersigned credits Jackson's testimony as to these matters. On June 4, 1945, Milner came to Jackson in the winding room and, after some exchanges not material here, said, "I am gain., to get you out of this winding room I don't know how I am going to do it, but I am going to get you out of this winding room " The following day Jackson addressed a letter of explanation and protest to Milner, closing with an expression of confidence that Milner "would adjust this matter properly " At the hearing the Respondent acknowl- edged receipt of this letter There is no showing that any reply to it was made. Again on July 8, 9, or 10, 1945, Milner summoned Jackson to his office and took him to task in the presence of Taylor and Bell on the basis of reports made to Milner that Jackson had stated the Respondent would not give the promised vacation Jackson denied that he had done this and declared rather that he had said that if Milner had promised the vacation he believed the employees would get it. Miller further upbraided Jackson for failing to attend a meeting arranged by Jackson at which the speaker, made "constructive" suggestions, and for similar mnattendance by Jackson on Milner s speech on the day before the Board election. Jackson excused himself as to both occasions because his work was arduous and he was tired A day or two later Milner again summoned Jackson to the office in the presence of Taylor and Bell, where he was again accused by Employee Hammel, a winder operator, of having said with reference to an assertion by a third employee that vacations would not be given, "Well, I wasn't expecting no vacation, no how " Jackson denied having made such a statement but Hammel persisted in the accusation. Milner then said, as Jackson testified, "I want to tell you, Jackson, you are disloyal. You are crooked . . . it is going to get you out of a job. I want you to know that." Milner thereafter refused to discuss the matter further. Milner admitted having told Jackson on these occasions that he was disloyal but denied that he had used the word "crooked." He did not specifically deny threatening Jackson with loss of his job After considering the record and the demeanor of the witnesses and noting the failure to call Taylor as a witness the undersigned concludes and finds that Jackson's account of these interviews was substantially correct.21 20 An excerpt from Bell ' s testimony reads, "There was never any set rule , only the rule I made myself I asked them ( male operators ) not to go down the alleys and hinder the winder operators." 21 Testimony by Bell in the reopened hearing is in substantial accord with this account. 254 DECISIONS OF NATIONAL - LABOR RELATIONS BOARD In July 1945 the Union began a second organizational campaign . At this time, as Jackson 's creditable testimony shows; both Bell and Jones again repeatedly instructed 'Jackson not to talk to the employees . This continued until Jackson left the mill on October 26; 1945. Jackson gave further credited testimony to the effect that privileges which he had been accustomed to enjoy had been taken away after the Board hearing. In common with other employees Jackson had been free to read at intervals in his employment when his "work was up " There- after he was instructed by'Taylor to quit reading while on duty . Similarly the employees had enjoyed freedom to leave the plant at intervals in their employ- ment. On such occasions they did shopping , ate lunches or visited their homes. Not only were these privileges discriminatorily withdrawn from Jackson but he was instructed not to leave the winding room. Milner denied that he had issued such instructions and Foreman Bell testified that he had never interfered with Jackson's reading in intervals of his employment . The testimony by Jackson however is detailed, vividly stated and persuasive . After consideration of the full record , the undersigned concludes and finds that Jackson's version is sub- stantially correct. Further evidence of a policy of harassment pursued by the Respondent is found in Jackson ' s uncontroverted and credited testimony regarding several instances when he was reprimanded because cones containing wrong sizes of yarn had been found in crates which he was alleged to have filled . Respondent neither offered testimony in refutation of Jackson ' s account nor advanced these matters in explanation of its failure to reinstate Jackson. Hence the undersigned does not find it necessary to discuss these instances in detail . It is clear that various employees besides Jackson placed cones in the crates and could have been re- sponsible for the mistakes found. It is further clear that Respondent 's officials ascribed the faults to Jackson . Bell asserted to Jackson , that he had orders from Taylor and Milner , " to keep down everything , against [him ]." On one occasion - Bell warned Jackson that he "was going to lose his job," if the mixing of sizes in the crates did not stop"-' When complaint was made later to Super- intendent Taylor he also told Jackson , "This is going to get you out of a job." After -listening to Jackson ' s explanation , Taylor withdrew the statement. - The circumstances under which Jackson left his employment are not in dis- pute. On October 26, 1945, he felt ill and at 7: 00 a. in . and again at 8: 00 a. in requested Foreman Bell to relieve him. About 9. 30 a. in . Jackson found him- self unable to continue and, after so reporting to Bell, left his work at 10: 00 a. in intending to go home . As he passed through the mill gate he encountered Milner and explained to him that he was ill . Milner gas e Jackson a printed form and directed him to visit the Respondent 's physician , one Dr. Howard. Jackson did so and , as his credited testimony shows , was given a prescription and directed to "Go home, go to bed and stay there " Jackson then returned to the office and handed in the form to Milner, reporting the instructions given him by Dr. Howard 21 Jackson was absent from the mill for the following month of No- vember. He was not confined to his bed but was "in and out of bed ," as he and his wife testified , was unable to work, had no employment and did not "earn a penny" during this period. On November 7, 1945 Jackson moved from the company house which he then occupied to a residence , which was owned by a relative and was rent free." This a' Bell made no direct reference to these incidents in his testimony although he denied having told Jackson that "Milner was after him." 1' Milner testified that, while he did not remember that Jackson saw him after return- ing, he would not deny this occurrence. 11 Mrs Jackson 's testimony at the reopened hearing indicates clearly that the move was on her initiative and that she made the decision to move. She testified that a leaky GATE CITY COTTON MILLS 255 move was duly reported to Superintendent Nabors. It is agreed that between October 26 and November 7, 1945, Jackson's home was visited at frequent intervals by Nabors , Foreman Bell and Machine Fixer Jones On these occasions they in- quired whether he had quit and when he might be expected to return. It was Jackson's consistent testimony that on each of these occasions he had assured his questioners that he had not quit and that he would return as soon as he was able. Jackson's testimony relative to an interview with Nabors about October 31, 1945 reads as follows : - The day I came back, the day I seen Mr. Milner, Mr. Nabors stopped me and asked me had I quit. He had heard I had. I said, `Mr. Nabors, I have not quit. . . You can ask Jones . . He asked me and I told Bell and all of them. And he said, "I heard it but I wanted you to tell me ; " I said I had not quit, "And don't think my moving has got anything to do with it " Excerpts from Bell's credited testimony about an incident which he dated as November 5, 1945 reads as follows - I told Jones . . "Go by Mr Jackson's house I have got to do some- thing about his-job. Go by Mr. Jackson's house and find-out if he has quit . . . The report come in here he has quit and if he has, I want to start training someone for the job." So Jones went out and he [Jackson] told Jones, ;`Well, you tell Bell that I haven't quit and when I get ready to quit, I will call him If he will quit paying attention to all them rats up there and just mind his business, we will all get along better." The hearing was reopened on April 24. 1946 primarily to receive the testimony of LeRoy Hayes, a maintenance man, whose duties included periodic inspection of the plumbing in the company homes Hayes testified that a day or two before Jackson moved, i. e., about the same day as Jones' inquiry detailed above, he visited Jackson's house and found the chicken wire had been torn down He asked Jackson the cause and Jackson told him as Hayes testified, that he had quit his employment with the Respondent and was moving and expected to oversee a plantation.25 Jackson was called in rebuttal by the Board and flatly denied having had an}• conversation with Hayes about the time of his moving, adding, "In fact I didn't see Mr. Hayes " Mrs. Jackson fully corroborated her husband, testifying that Hayes never came to their home. Both Jackson and his wife testified that on the day they moved they went to the mill- to get Jackson's final pay check While there they met Superintendent Nabors and asked that he check the condition in which they were leaving the house. At this time, as both Jackson and his wife testified, Jackson gave Nabors their new address and assured Nabors that he "would be back there when [he] got able to work."" Nabors testified that on this occasion he walked from the mill to the house with Jackson He did not specifically deny that this conversa- tion occurred. Both Jackson and his wife impressed the undersigned as trust- worthy and careful witnesses. It is inherently improbable that Jackson would roof which the respondent failed to repair exhausted her patience and that she deter. mined to accept an offer of her brother who, she testified, "would let me have the house, and no rent, and furnished me 'a cow and water and wood and it didn't cost us anything." z5 Elsewhere, Hayes testified, "Well, he told me he quit He told me he quit and went to oversee a farm Talked like he had a swell fob " Za Mrs Jackson's version reads, "Air Jackson told hint lie was coming hack lust as soon as he got able." 256 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD ,have told Hayes he had quit and found other employment when immediately before and after this alleged statement he had positively stated his intention to retain his job with the Respondent. After consideration of the entire record and the demeanor of the witnesses, the undersigned rejects the testimony of Hayes. On November 30, 1945 Jackson telephoned Milner and stated that he was able to return to work Milner, as his testimony and that of Jackson agrees in stating, referred Jackson to Superintendent Nabors. Nabors' testimony, which is in substantial accord with that of Jackson, reads, "I had filled his job. That he had been gone so long, I didn't think he was coming back, and so I had placed another man in his job and [I] asked him to place his application in the personnel office.""' Jackson declined to file such all application. On January 11, 1945, however, he sent a letter to Nabors stating that lie had "been able and willing to return to work ever since November 30, 1945", and was awaiting the Respond- ent's call to come to work. The record reflects no reply to this communication. The Respondent does not question Jackson's claim that his withdrawal from his duties on October 26 was necessitated by illness At the hearing both Milner and Nabors expressed doubt that Ins illness was sufficiently severe to necessitate Jackson's prolonged absence. Milner referred to the fact that he had seen Jack- son on occasions at some distance from his home" and that supervisors checking on absentees had experienced difficulty in finding Jackson at home. Nabors testified that when he checked Jackson's house on November 7, 1945 he found him assisting in the moving operation. Under cross-examination Nabors stated that he could not be positive that Jackson "loaded anything on the truck." The undersigned does not find it necessary to deal minutely with this contro- versy. Milner testified that his established policy was to "take it for granted an employee always knows when he is sick." He further stated that no use was made of Dr. Howard's reports as a check on employees' illnesses., An excerpt from his testimony in point here, reads: Why, we don't interfere with people who are really sick and off the job. There is no definite period of sickness when they might retain the job or i stay in the house It's the policy of the Company to always cooperate with sick employees. Q. Regardless of how long they are sick? A. That is true It is clear from Respondent's admissions that Jackson was discriminatorily treated when refused reinstatement after his illness. The undersigned notes further that it is inherently improbable that an employee of mature age, with established regular work habits zu and family responsibilities would absent him- self from his-work and forego income, for over a month, if able to work. After considering the full record it is clear that Jackson before the advent of the Union had been a favored employee, who was promised a substantial promo- tion. The Respondent persistently opposed the Union and -found frequent oc- casion to criticize Jackson's actions in connection with matters in which the zf Bell's credited testimony shows that on November 8, 1945 he transferred Employee Jeff Clark to Jackson's job Clark left the mill in January or February 1946 At this time Employee Edgar Rogers took over the position 28 Jackson testified that on the second day of his illness he met Milner in East Point, Georgia which is about a mile from his home. Excerpts from this testimony read, He [Milner ] asked me how I felt . I said I wasn 't feeling so good He said, "Looks like a man who can walk around ought to be able to work " I said "well, Mr. Milner, a man can be sick enough to walk around and not be able to work " As noted above , Jackson had a record of attendance , unbroken by absence, for 15 months preceding his illness GATE CITY COTTON MILLS 257 Union was concerned such as his alleged statements relative to the vacation plan and his absenting himself from Milner's preelection speech. On these oc- casions Jackson was threatened with loss of his job. Such threats came to fruition when the Respondent seized upon the pretext afforded it by the illness and absence of Jackson from his duties. The undersigned concludes and finds that the termination of Jackson's employment on November 30, 1945 was dis- criminatorily based on his union activity and membership. It is further found that the subsequent failure to rehire Jackson was based on the same motivation. The undersigned finds that the Respondent by refusing to reinstate James E. V. B. Jackson on November 30, 1945, and thereafter, has discriminated in regard to his hire and tenure of employment and has thereby discouraged membership in a labor union. He further finds that by Milner's anti-union acts and utterances to Jackson ; by Bell and Taylor's interference with Jackson's freedom of com- munication with other employees ; by Bell and Jones' surveillance and harass- ment of Jackson and by discriminatorily depriving Jackson of privileges enjoyed by other employees, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in con- nection with the operations of the Respondent's business described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action found necessary in order to effectuate the policies of the Act. It has been found that the Respondent refused to reinstate and thereby dis- charged James E V. B. Jackson on November 30, 1945, thus unlawfully discrim- inating in regard to the hire and tenure of his employment It will accordingly be recommended that the Respondent offer James E. V. B. Jackson immediate and full reinstatement to his former or to a substantially equivalent position without prejudice to his seniority or other rights and privileges he may have. It will be further recommended that Respondent make him whole for any loss of pay he may have suffered by reason of the Respondent's discriminatory action, by payment'to him of a sum of money equal to the amount he would normally have earned as wages from the date of the Respondent's refusal to reinstate him on November 30, 1945 to the date of the Respondent's offer of reinstatement, less his net earnings°0 during said period. Since, as has been set forth above, the Respondent is shown by the record to have engaged in a persistant course of conduct in opposition to-union organization; participating in an organized campaign to induce withdrawals from the Union; °° By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working elsewhere than for the respondent, which would not have been incurred but for his unlaw- ful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company, 8 N. L R. B. 440. Monies received for work per- formed upon Federal, State, county, municipal, or other work-relief projects shall be considered as earnings See Republic Steel Corporation v N L R. B , 311 U. S. 7. 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD questioning its employees as to their union membership ; engaging in a policy of harassment of employee Jackson within the observation of its employees in the winding room, a procedure well calculated to impress on all of its employees that - Respondent's attitude was consistently anti-union and that those engaging in union activities might well expect to incur similar penalties, and since the Respondent refused on November 30 to reinstate Jackson on his return from an extended .Illness, contrary to its established policy_ of holding open the jobs of employees absent for such reasons, the undersigned finds that the Respondent has -evinced -a fixed determination to continue its opposition to the processes which lead to collective bargaining. It will therefore be recommended that the Board's order be broad enough to insure that the Respondent will cease and desist from all acts and utterances which oppose the central purpose of the Act to promote collective bargaining The deterrent purposes of the Act will be defeated if the Order is not as comprehensive as the threat 'of unfair labor practices clearly indicated by Respondent's proyen offenses in the instant proceeding. It will accordingly be recommended that the Gate City Cotton Mills Company be ordered to cease and desistifrom in any manner infringing upon the rights guaranteed to its employees in Section 7 of the Act. , On the basis of the above findings of fact and upon the entire record in this case, the,undersigned makes the following : CONCLUSIONS OF LAW 1. Textile Workers Union of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment and the terms and conditions of employment of James E. V. B Jackson, thereby dis- couraging membership in a labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning `of Section 8 (3) of the Act _ 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the Respondent, Gate City Cotton Mills, and its officers, agents, successors and assigns shall: 1 Cease and desist from : (a) Discouraging 'membership in the Textile Workers Union of America, CIO, or a ly other labor organization by discriminating in regard to the hire and tenure of employment or any terms and conditions of employment of its employees ; (b) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the right to self-organization, to form, join or assist Textile Workers Union of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purposes of collective bargaining or other mutual- aid or protection as guaranteed'in Section 7 of the Act. 2 Take the following affirmative action which the undersigned finds will ef- fectuate the policies of the Act: GATE CITY COTTON MILLS 259 (a) Offer to James E V. B. Jackson immediate and full reinstatement to his former or a substantially equivalent position without prejudice to his seniority or other rights and privileges he may have ; (b) Make Jackson whole for any loss of pay he may have suffered by reason of the Respondent's discriminatory action against him, by payment to him of a sum of money equal to the amount which he normally would have earned as wages from the date of the Respondent's discriminatory refusal to rehire him to the date of the Respondent's offer of reinstatement, less his net earnings 81 during said period; (c) Post at its plant at East Point, Georgia, copies of the notice attached hereto marked "Appendix B." Copies of said notice, to be furnished by the Regional Director for the Tenth Region, after having been signed by the Res- pondent's representative, shall be posted by the Respondent immediately upon the receipt thereof, and maintained by it for sixty (60) consecutive days there- after, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced or covered by any other material ; (d) Notify the Regional Director for the Tenth Region in writing, within ten (10) days from the date of the receipt of this Intermediate Report, what steps the Respondent has taken to comply therewith. It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report, the Respondent notifies said Regional Direc- tor in writing that it will comply; with the foregoing recommendations, the Na- tional Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective November 27, 1945, any party or counsel for the Board may, within fifteen (15) days from the date of the entry-of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and four copies of a statement in writing, setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such state- ment of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days 'from the date of the order transferring the case to the Board. CHARLES E. PERSONS, Trial Examiner. Dated April 30, 1946. APPENDIX A My Fellow Employees: In my opinion, the time has come for me to discuss with you your rights in connection with the election which is to be held tomorrow. This election is to be held in the Packing Room during the hours between 1: 30 o'clock and 4: 30 o'clock P. Al This will give the employees who are on the First Shift the oppor- tunity during the last hour and a half, just before they go off duty, to cast their " See footnote 30, supra. 712344-47-vol. 70-18 260 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD votes and it will give the Second Shift the privilege of voting during the first hour and a half after they come on duty. Any employee on either of the Shifts may vote at any time during the hours between 1: 30 o'clock and 4: 30 o'clock P. M. and those employees who are on duty will be paid for the time lost during voting They will also be privileged ,to leave their jobs at any time during the election period to cast their vote.' Under the law, you have the right to join any labor organization you see fit and I have no intention to deter you from exercising this right. Your action in selecting or not selecting a Union as your Bargaining Agent will not affect your position or your future prospects with the Mill. We want to make it equally clear, however, there is 'no requirement that you join any organization. There is no law that requires you to join a Union, or to pay dues to it, qr to give it'the authority to make contracts for you. You have the right, as you have had in the past, if you do not select the Union as your Bargaining Agent, to do your own trading and to make your own contracts and agreements without paying any dues to anyone for this privilege. The question for you to decide is: whether it will be to your interest for you to vote for a Union to represent you, and to pay dues to it, and surrender your rights to make your own decisions, or whether you prefer to remain independent, pay no dues, and take up your agreements and differences with me, individually, without any outside influences from the New York bosses of the Union. Like some of you, I have been with this Company for twenty-eight years and . have occupied the position of an official since. 1921 and, during all these years, you and I have worked together on a most cordial and friendly basis. During the twenty-one years of my official capacity with this Company, if you were sick, hurt, in trouble, or needed help' of any kind, I have never refused, financial assistance in any meritorious case. None of you have suffered for hick of a doctor or hospital facilities for yourself or family when sick, hurt, or needing an operation. I have helped you if you were in jail, or in court, and have signed many bonds. I know you have always felt free to talk. with me about matters of any kind and I have felt the same liberty with you. If the majority of you vote tomorrow for the Union, the Union will thereafter have the sole and exclusive right to act for this Company. It will necessitate that you turn the right of bargaining over to the Union Committee who will have full authority in the settlement of these differences for yourselves. 'If the Union wins, no employee of the Company will thereafter be permitted to settle with his supervisory official any matter which the employee feels is important to his or her welfare. You may have been told that the Union is a Democratic organization and that the members of the Local Union will be allowed to frame policies and control the affairs of the Local Union If you have been told that, we think you have been misled. Most all Union policies are dictated by the national officers of the Union and the local members do not have anything to do with formulating Union policies ! You may have been told that you will not be permitted to hold your job if you do not join the Union. You may have been told that unless you join now, you will have to pay a higher initiation fee later. Let me tell you now that you will never be forced to join a Union to bold a job in this Mill. The late President of the United States said that no employee will be forced to join a Union ' and the new President has agreed to follow his policies throughout. Whether you are a member-of the Union or not will not have any effect upon your job with this Company. GATE CITY COTTON MILLS 261 You should carefully consider what this thing of being a member of the Union, In Good Standing, involves To be in good standing, you will have to pay all the dues, fines, and assessments, according to what the National Officers Think. The War Labor Board would require this Company (against its will) to deduct from your pay checks the dues, fines and assessments which may be levied on you by the New York Union officers. I have heretofore told you that I did not believe the Union could give you anything which you are not already receiving from the Company. We have always raised our wages whenever the Government permitted raising wages to the textile industry and our wages have very recently been raised and are now above the wages of many of the plants in which the Union is the Bargaining Agent. To illustrate, our wages on an average are higher than the wages of the Mary Leila -Cotton Mills,.at Greensboro, Georgia. This mill has had the C. I. 0. Union as its Bargaining Agent for about five years. They are now on a strike and have been so for a period of some six weeks. The Mary Leila employees are not now receiving a dime, but are eating white beans doled out to them by the Union bosses, while the, Union bosses are eating off the fat of the land in New York City. The Union will say it can get a vacation for you You have already-been told the conditions under which you will be given a week's vacation with pay this summer No Increase in Pay Can Be Granted Without Government Approval. So you see, the whole thing boils down to the fact that the Only Advantage (?) the Union can give you is the Privilege of Paying Dues for the Benefit of Their New York Bosses. You may have been told by some of the Union organizers that this Mill earned large amounts of money during last year. If this statement has been made, I want to assure you it is a deliberate misrepresentation of the facts. I, myself, made numerous trips to Washington last year for the purpose of obtaining relief from the 0. P A. prices that were then in effect on carded yarns, in order that we may operate without a loss. I would like to say a word about the right of the colored employees to vote in this election. The Federal laws which control the relationship between Com- pany and Union do not permit either the Company or the Union to make any distinction between colored and white employees. Under the law which this election is being conducted, colored employees have just as good a right to vote, and to vote as they ijlease, as the white employees, and we are' desirous of our colored employees exercising their right to vote in the election. You will notice on the billboards throughout the plant a notice posted thereon which was prepared by the National Labor Relations Board and on that poster is a sample of the ballot. If you want to vote "for the Union," you can place 'a cross mark under the word Yes ; if you want to vote "against the Union," you can place a cross.mark under the word No Let me again impress you, with necessity ,of voting in this election and again outline the manner in which you will have to ,indicate your preference in this election ; that is, if you want to vote "for the Union," you will have to place a cross mark under the word Yes ; if you want to vote "against the Uiiion,,'- you will have to place a cross mark under the word No It is very important that each and every employee cast their ballot. This election will be,ln charge of a representative of the National Labor Re- lations Board-and will, we believe, be conducted honestly and fairly. The election will be entirely secret. The Company has agreed to furnish a list of the em- ployees who are eligible to vote in the election. This list will indicate the names of all employees who were on our payroll for the week ending April 28, 1945, who 'llnave not since quit or been discharged for cause. 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I want to impress upon you that the results of the election will be controlled by the majority of the votes cast and not a majority of the employees who are entitled to vote. This makes it extremely important that all of you vote. If you do not vote, you will in effect be voting with the majority of those who do vote, whether they vote like you would have wanted to or not. We urge you, therefore , to vote in the election and vote as you yourself believe to be for your own personal interest . You can decide for yourselves whether the best interests of the Company are also your best interests . We do not hestitate to state that in our opinion you will be better off without a Union. - There is nothing much worse than-to have to listen to someone read a speech. I wish I could simply talk to you and that I could answer any and all questions which you might want to ask me. I am extremely sorry that the situation is such that I am compelled to limit myself to reading a prepared statement to you and will - not be able to answer questions . If the Union should lose, they are always bad losers and will no doubt attempt to take us before the Board and accuse us of being guilty of some so -called unfair labor practice . Therefore, what I say to you must be written out so that there will be no question as to the exactness of my statement. I will , therefore , close my statement to you with an urge that each and every- one of you vote in the election to be held tomorrow between the hours of 1: 30 and 4: 30 P. M. APPENDIX B NOT] CE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National La- - bur Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT in any manner interfere with, restrain or coerce our em- ployees in the exercise of their right to self -organization , to form labor organi- zations, to join or assist Textile Workers Union of America , CIO, or any- other labor organization , to bargain collectively through representatives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. AVE WILL OFFER to the employee named below immediate and full re- instatement to his former or substantially equivalent position without prejudice to any seniority or other rights and, privileges previously en- joyed, and make him whole for any loss of pay suffered as 'a result of the discrimination. James E. V. B. Jackson. All our employees are free to become or remain members of the above-named union or any other labor organization . We will not discriminate in regard to, hire or tenure of employment or any term or condition , of employment against any employee because of membership in or activity on behalf of any such labor organization. ' GATE CITY COTTON MILLS, By --------------- -------------- (Representative) (Title) Dated------------------------------ - This notice must remain posted for 60 days from the date hereof, and must not, ,be altered , defaced, or covered by any other material. -