Ingram Manufacturing Co.

National Labor Relations Board - Board Decisions

Mar 11, 1938

5 N.L.R.B. 908 (N.L.R.B. 1938)

In the Matter Of INGRAM MANUFACTURING COMPANY and TEXTILE
WORKERS ORGANIZING COMMITTEE
Cases Nos. C-335 and R-234.-Decided March 11, 1938
Textile Manufacturing Industry-Interference, Restraint, and Coercion:
propaganda against union; propaganda discrediting union representatives; ex-
pressed opposition to outside labor organizations; threats to close plant rather
than enter into contract with one organization; persuading employees to refrain
from joining one organization- Discrimination: demotion- Company-Domi-
nated Union: domination or interference with administration of; support,
soliciting membership by supervisory employees ; responsibility for allegedly
unauthorized activities of supervisory employees in absence of public repudia-
tion by management ; despite absence of interference at the creation of and
refusal to bargain with organization ; disestablished as agency for collective
bargaining-Reinstatement Ordered: of employee demoted for union activity-,
Settlement: agreement to cease prosecution ; between union filing charge and
respondent, without participation of Board representative; no bar under cir-
cumstances-Investigation of Representatives: controversy concerning repre-
sentation of employees : substantial doubt as to majority status ; refusal by
employer to meet and negotiate with union representatives-Unfit Appropriate
for Collective Bargaining: production employees, no controversy as to-Election
Ordered: ballot, company-dominated labor organization excluded from.
Mr. Maurice J. Nicoson, for the Board.
Bass, Berry rfi Sims, by Mr. Cecil Sims, of Nashville, Tenn., for the
respondent.
Mr. Herbert G. B. King, of Chattanooga, Tenn., for the T. W. O. C.
Mr. Millard L. Midonick, of counsel to the Board.
DECISION
ORDER
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On July 8, 1937, Textile Workers Organizing Committee, herein
called the T. W. O. C., filed with the Regional Director for the
Tenth Region (Atlanta, Georgia) a petition alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Ingram Manufacturing Company, Nashville, Tennessee,
herein called the respondent, and requesting an investigation and
certification of representatives pursuant to Section 9 (c) of the
908
DECISIONS AND ORDERS 909
National Labor Relations Act, 49 Stat. 449, herein called the Act.
On July 20, 1937, the National Labor Relations Board, herein called
the Board , acting pursuant to Section 9 (c) of the Act and Article
III, Section 3, of National Labor Relations Board Rules and Regu-
lations-Series 1, as amended , ordered an investigation and authorized
the Regional Director to conduct it and to provide for an appropriate
hearing upon due notice.
The Regional Director issued a notice of hearing on July 21, 1937,
an amended notice of hearing on July 26, 1937 , and a second amended
notice of hearing on July 31, 1937, copies of all of which were duly
served upon the respondent and upon the T. W. O. C. Pursuant to
the notice , the amended notice, and the second amended notice , a hear-
ing was held on August 12, 1937, at Nashville, Tennessee, before
William H. Griffin, the Trial Examiner duly designated by the Board.
The Board, the respondent, and the T. W. O. C. were represented by
counsel and participated in the hearing. Full opportunity to be
heard, to examine and to cross -examine witnesses , and to introduce
evidence bearing on the issues was afforded all parties . During the
course of the hearing no -rulings were made on motions nor were
objections interposed to the admission of evidence.
Upon charges duly filed by the T. W. O. C., the Board, by the
Regional Director for the Tenth Region (Atlanta , Georgia), issued
a complaint dated November 4, 1937, against 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), (2), and ( 3) and Section 2 (6) and (7) of the Act.
Copies of the complaint and accompanying notice of a hearing
to be held upon the complaint in Nashville , Tennessee , on November
15, 1937, were duly served upon the respondent , the T . W. O. C., and
Ingram's Employees Council, herein called the Council. At the re-
quest of the respondent and by agreement with the T. W. O. C., the
hearing was advanced to November 10, 1937, and amended notice to
that effect was dispatched by telegraph on November 8, 1937, and by
registered mail on November 9, 1937, to the respondent, to the
T. W. O. C., and to the Council.
Pursuant to the amended notice, a hearing was held in Nashville,
Tennessee , on November 10 and 11 , 1937, before Laurence J. Fosters,
the Trial Examiner duly designated by the Board. The Board, the
respondent , and the T . W. O. C. were represented by counsel and
participated in the hearing. The Council did not appear , nor did
it seek to intervene or to participate in the hearing . Full oppor-
tunity to be heard, to examine and to cross-examine witnesses, and to
produce evidence bearing on the issues was afforded all parties.
At the hearing, upon motion of counsel for the Board, paragraphs
8 and 9 of the complaint , alleging violation of Section 8 (3) of the
910 • NATIONAL LABOR RELATIONS BOARD
Act by discrimination with regard to three persons named therein,
were dismissed without prejudice.
At the hearing the respondent filed an answer denying most of
the allegations of the complaint, admitting, however, those concern-
ing its incorporation and business. As a further defense, the re-
spondent alleged that with the exception of paragraph 7 of the com-
plaint, all of the matters set out therein were embodied in a former
complaint in Case No. X-C-160 involving the same parties; that after
said former proceeding had been set for trial, the T. W. 0. C. and
the respondent compromised and settled by written document 1 dated
July 1, 1937, all of the matters involved therein; that pursuant to
the settlement, the T. W. 0. C. made a written request 2 for per-
mission to withdraw the charges; that the Regional Director for the
Tenth Region granted consent on July 3, 1937, and ordered the pro-
ceeding to be dismissed; that by reason of the settlement and dis-
missal of the former matter, the Board is wholly without jurisdiction
to hear, or determine the issues there involved. Upon the same
grounds as were advanced in the foregoing allegations, the respond-
ent filed a motions at the opening of the hearing that all allegations
in the complaint based upon matters alleged to have occurred prior to
July 1, 1937, be dismissed. The Trial Examiner denied the motion,
and the respondent excepted. The respondent is deemed to have
duly excepted throughout the hearing to the admission of evidence as
to conduct prior to July 1, 1937, relating to the allegations of the
former complaint. The Intermediate Report of the Trial Examiner,
filed on December 22, 1937, proceeded upon the theory that the afore-
said motions were properly denied and objections properly overruled.
In its exceptions to the Intermediate Report, filed January 3, 1938,
the respondent renewed its former contentions.
We affirm the rulings of the Trial Examiner in this regard. The
respondent's contention that the Board is without authority cannot
be sustained. The agreement of settlement, dated July 1, 1937, and
signed by representatives of the T. W. 0. C. and of the respondent,
provided:
Following our discussion of tonight, this is to advise you that
the Ingram strike has been called off with the understanding
that all workers will be returned to work without discrimination
because of union activities as rapidly as conditions will permit
in the resumption of normal production..
It is also now understood that all charges now pending before
the National Labor Relations Board will be dismissed. All
future matters will be determined in accordance with the
National Labor Relations Act.
i Respondent Exhibit No 1-a.
2 Board Exhibit No 9
3 Respondent Exhibit No 1.
DECISIONS AND ORDERS 911
Pursuant to the settlement agreement, A. Steve Nance, a repre-
sentative of the T. W. 0. C., dispatched to the Regional Director
for the Tenth Region the following communication :
I wish to request permission to withdraw the charge hereto-
fore filed in the above named case 4 under date of June 3, 1937,
and amended on June 21, 1937.5
The Regional Director thereupon issued, on July 3, 1937, an order
consenting to the withdrawal of the aforesaid charge and dismissing
the case.'
Another charge was subsequently filed by the T. W. 0. C. on Sep-
tember 28, 1937, and a new complaint based upon it was issued on
November 4, 1937. Upon this charge and complaint the present case
proceeds.
In its exceptions to the Intermediate Report, the respondent con-
tends that the Trial Examiner erred in denying its motion to dismiss
because the "Trial Examiner and the Board are . . . without au-
thority to reopen matters involved in a labor dispute which have been
compromised and settled by the parties in interest." It is not claimed
that any member or representative of the Board participated in the
settlement agreement. The request to withdraw the charges carried
no notice of the settlement or the circumstances for the ratification
of the Regional Director. The Board itself, representing the United
States, is a party in interest in proceedings relating to unfair labor
practices under the Act. No private party can sanction an em-
ployer's interference, 'restraint, or coercion in the exercise of rights
guaranteed by Section 7 of the Act, nor can such a party sanction
unlawful domination, interference, or support of a labor organiza-
tion by an employer, in contravention of the policy of the Act.
In a proper case, particularly if the agreement is concluded with
the safeguard of the presence of a governmental representative, we
may exercise our discretion and refuse to disturb the settlement. But
we will closely scrutinize all agreements purporting to settle or
compromise charges of unfair labor practices. Under the circum-
stances of the present case, we do not believe the agreement has
effectuated the policies of the Act and cannot therefore withhold
action on its account.
Moreover, upon a review of the record, it appears that the re-
spondent has not fully carried out the conditions which by the agree-
ment it undertook to perform in consideration for the settlement of
the charges.
We are not bound in this case by the Regional Director's dismissal
of the former case. No contention based upon the doctrine of res
Case No X-C-160
Board Exhibit No 9
Respondent Exhibit No 1-b
912 NATIONAL LABOR RELATIONS BOARD
judicata can prevail since the former case was dismissed before
hearing was reached and without opportunity for adjudication of
the merits.
The respondent further asserts, basing its argument again upon
the reasoning that the matters prior to July 1, 1937, had been settled
by the parties, that the Trial Examiner erred in admitting and con-
sidering evidence relating to such matters and in basing his findings
of fact and conclusions thereon. This contention is without merit
for the reasons already advanced and for the further separate reason
that evidence concerning unfair labor practices under the Act,
even though there has been a settlement of such matters binding
upon the Board, may, nevertheless, be relevant to the consideration of
evidence of unfair labor practices alleged to have been committed
subsequently. A course of conduct, although itself not within the
operation of the Act, may throw light and color upon other activ-
ities, and evidence concerning such conduct may therefore be relevant
to matters at issue and consequently admissible. It is upon this
theory that we have often considered evidence of conduct which oc-
curred prior to the effective date of the Act.
The respondent further argues that since the T. W. 0. C. agreed
that charges before the Board would be dismissed, the T. W. 0. C.
"could not thereafter make the charges upon which the complaint
in the present case is based, and hence the charges upon which the
present complaint was issued were altogether without legal effect
and no complaint could lawfully be issued or based thereon." With-
out passing upon whether the terms of the agreement, properly con-
strued, purported so to bind the T. W. 0. C., we hold that an agree-
ment by which a labor organization binds itself to refrain from
filing charges under the Act on behalf of employees is contrary to
the policy of the Act and therefore of no effect whatsoever upon,the
power so to initiate Board proceedings.'
At the commencement of the hearing, the respondent moved to
require the Board to make its complaint more specific, particularly
as to paragraphs 3, 4, 5, 6, 7, 10, 11, 12, 13, and 14, on the ground
that the allegations were so general in their nature as not to apprise
the respondent sufficiently of the nature thereof to enable it ade-
quately to prepare its defense. Upon the denial of the motion, the
respondent moved to dismiss the complaint for the reasons stated
above and for the reason that to force the respondent to trial under
the circumstances constituted a denial of due process of law. These
motions were denied by the Trial Examiner, and exceptions were
taken. Upon an inspection of the complaint, we find no merit in the
respondent's position that it is defective in the respects contended.
S Cf. Matter of R C A Manufacturing Company. Inc . and United Electrical t Radio
Workers of Avnei ica, 2 N. L it. B., 159, 179.
DECISIONS AND ORDERS 913
At the conclusion of the Board's evidence , the respondent moved for
a postponement of the hearing on the claim that it required time to
prepare its defense to a case for the first time disclosed by the Board's
ovidence . The respondent excepted to the denial of this motion by
the Trial Examiner . However, at the oral argument before the Board
in Washington , D. C., granted at the respondent 's request , though
counsel for the respondent was asked several times what further evi-
4ence he had to offer, he made no offer of proof but merely expressed
himself as satisfied that the respondent would prevail upon the basis
of the- record as it now stands. We find that the Trial Examiner did
not by these rulings commit prejudicial error, and the rulings are
hereby affirmed.
At the close of the Board's case before the Trial Examiner , counsel
for the Board moved to conform the pleadings to the proof adduced
at the hearing. This motion was granted by the Trial Examiner.
During the course of the hearing , the Trial Examiner made several
rulings, in addition to those mentioned above, on motions and on
objections to the admission of evidence . The Board has reviewed the
rulings of the Trial Examiner and finds that no prejudicial errors
were committed . The rulings are hereby affirmed.
On December 20, 1937, the Trial Examiner filed an Intermediate
Report in which he found that the respondent had engaged in and
was engaging in unfair labor practices within the meaning of Sec-
tion 8 (1) and ( 2) and Section 2 (6) and ( 7) of the Act. The Trial
Examiner recommended , however , that so much of the complaint as
related to the discharge of Herbert Tyner, Herman Louis Watson,
and Boyd Harris be dismissed without prejudice in accordance with
the ruling at the hearing granting the motion of counsel for the Board
to dismiss the allegations in paragraphs 8 and 9 of the complaint.
On January 3, 1938, the respondent filed exceptions to the Inter-
mediate Report and requested an opportunity to argue the exceptions
before the Board. Pursuant to notice , a hearing was held before the
Board on January 13, 1938, for the purpose of such oral argument.
Only counsel for the respondent participated.
On February 18, 1938, pursuant to Article III, Section 10 (c) (2),
of National Labor Relations Board Rules and Regulations-Series 1,
as amended , the Board issued an order consolidating the cases for all
purposes.
Upon the entire records in both cases , the Board makes the
following :
FINDINGS OF FACT
1. THE BUSINESS OF TIIE RESPONDENT
The respondent , Ingram Manufacturing Company, is a Tennessee
corporation having its office, plant , and principal place of business in
914 NATIONAL LABOR RELATIONS BOARD
Nashville, Tennessee. The respondent is engaged in the manufacture
and production of yarn, both cotton and wool, and in the production
of bath mats, rugs, and bed spreads. The principal raw materials
used in the production of these products are wool and cotton. Dur-
ing 1936, purchases of wool by the respondent for its operation
amounted to $758,428.85 in value. All of the wool was shipped to
the respondent's plant in Nashville, Tennessee, from Massachusetts
and Pennsylvania. The cotton used by the respondent in the manu-
facture of its products during the same period of time amounted to
$244,934.19 in value. Eighty-five per cent of the cotton is purchased
at and shipped from points without the State of Tennessee, principally
from Mississippi and Arkansas.
During the year 1936 respondent produced in its Yarn Depart-
ment both wool and cotton products valued at $1,333,446.03, and in
the manufacture and production of rugs, bath mats, and bed spreads,
products valued at $282,321.51. At least 75 per cent of these finished
products, manufactured in the respondent's Nashville, Tennessee,
plant, were sold and shipped to customers residing in States other
than the State of Tennessee.
The corresponding amounts in 1937 were substantially the same as
those set forth for 1936 above.
The respondent sells through commission men located at various
places in the United States, principally Chicago, Illinois; Reading,
Pennsylvania; Amsterdam, New York; Boston, Massachusetts; and
New York City.
The respondent's plant in Nashville, Tennessee, occupies a ground
area of approximately fourteen acres. It consists of one building in
which all the manufacturing operations are carried on. The opera-
tions are divided into the Rug Department, with approximately 105
employees, and the Yarn Mill, with approximately 377 employees.
II. THE ORGANIZATIONS INVOLVED
Textile Workers Organizing Committee, associated with the Com-
mittee for Industrial Organization, is a national labor organization
which formed and chartered its local affiliate, Textile Workers Or-
ganizing Committee, Local Union No. 143, membership in which is
confined to employees of the respondent's plant. The T. W. O. C.
admits to its membership all employees in the textile industry with
the exception of supervisory and clerical employees.
Ingram's Employees Council is likewise a labor organization, un-
affiliated, however, with any other organization. It admits to mem-
bership non-supervisory employees of the respondent only.
DECISIONS AND ORDERS 915
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
1. By discrediting the T. W. O. C. and by threats
After a drive for organization during May 1937, by the T. W. O. C.
and toward the end of the month by the Council as well, the re-
spondent's employees went out on strike on June 1, 1937. The causes
for the strike and its purpose are undisclosed by the record. The
resulting shut-down lasted until approximately June 25, 1937. At
that time, a "back-to-work"' movement succeeded in restoring the
plant to limited activity.- On July 1, 1937, the respondent and the
T. W. O. C. reached an agreement settling the strike and providing
that all workers be returned to work without discrimination and as
rapidly as conditions would permit in the resumption of normal
production."
It was testified that on July 6, 1937, while rehiring was being
carried on, Ernest Jones, Sr., vice president and general manager of
the plant, made certain statements to a number of employees on the
respondent's property. There appears in the testimony of Violet Kail,
one of the respondent's employees, the following :
Q. (By Mr. Nicoson.) What did Mr. Jones say there at that
time ?
A. Well, he said that the C. I. O. had sold out and Mr. Lambert
had left town and Mr. Nixon 9 was on his way out, and that they
had give us a dirty deal, and there was not any agreement for
us to co back to work between Mr. Sims 10 and Mr. Nixon.
The agreement was made before.
Q. How many people was there at that time?
A. My estimation, there was ten or fifteen standing around.
Q. You think they were within range of his voice?
A. Well, they were all huddled up around him. He could
not hardly turn around.
Mrs. Berryl Hedgepath, another employee of the respondent, cor-
roborated Violet Kail's testimony. Although it was stipulated by
the respondent and the Board that Ernest Jones, Sr., if able to be
present at the hearing, would take the stand and deny that he made
the remarks here attributed to him, we are nevertheless impressed
8 This agreement has been set forth and discussed above under "Statement of the Case."
*Lambert and Nixon were representatives of the T. W. O. C.
20 Mr. Cecil Sims as and is the respondent 's counsel.
916 NATIONAL LABOR RELATIONS BOARD
by the verity and mutual corroboration of the testimony of Kai?
and Hedgepath and find it worthy of credence.
If the aforesaid remarks of Ernest Jones, Sr., were accepted as true
by employees, the T. W. O. C. would have suffered from the conse-
quent discouragement and disaffection. And whether believed or dis-
believed, the obvious indication of management animosity toward the
T. W. O. C. would tend to accomplish the same result.
Annie Mae Neeley, one of the respondent's employees who went
on strike, was returned to her job on July 7, 1937. She testified that
during working hours on July 12, 1937, Jesse Shelton, her foreman,
said in her presence that "the C. I. O. would be no account down
there, that Ingram would never sign a contract and Worthen 11 got
his hand in a mess by signing a C. I. O. contract, and said that the
C. I. O. didn't even send after a charter for us, . . . "
The respondent did not stop at disparagement of the T. W. O. C_
Coercion was exercised by threats to close the plant and to go out
of business in the event that the T. W. O. C. should be in a position
to demand a contract. Thus Annie Mae Neeley testified concerning
Jesse Shelton, foreman, as follows :
... he came over there to fix my winder and then I said
"Jesse, you reckon we are going to get a closed shop," and he
said, "Why you are not even going to get no contract," and I
said, "Why," and he said "Well, I have been talking to Mr.
Ingram too many times" and he said Mr. Ingram would go out
of business, and I said "What do you mean by that?" He said
"Well, I mean they would shut the mill down before he signed
a contract."
Similarly, Mrs. Stella Etheridge, an employee of the respondent,
testified concerning Walling, a supervisory employee in charge of the
night and the day shifts, as follows :
... and Mr. Walling came around and I asked him what
did the card mean and what was there to the company union
and asked him what was his advice on it, and he told me-
asked me if I wanted to work, and I told him I certainly did,
and he said well, he would advise me to sign the company union,
because Mr. Ingram would never sign a C. I. O. contract-he
would let the mill sit there and rot.
Q. Now, was there anything said about voting?
A. Well, he told me that they would not have any voting;
that the C. I. O. had gone dead and that there was not anything;
else to it.
Neither Shelton nor Walling took the witness stand ; this testi-
mony stands uncontradicted.
"A competitor of the respondent.
DECISIONS AND ORDERS 917
2. By discrimination
Mrs. Roxie Robertson has been employed by the respondent in its.
rug department for approximately seven years. Her work is to run
borders on rugs. There are only two bordering machines in the plant.
One machine has customarily been operated to capacity while the
excess work is accomplished by use of the second machine. Until
May 1937, Mrs. Robertson operated the full-time machine. Mrs.
Frances Hill operated the second machine. Mrs. Hill had worked
quite regularly during the fall of 1936 and through the Christmas
holidays. After that Mrs. Hill worked only a few days as an extra
until May 1937. Mrs. Robertson testified that "sometime in May
when I carried some T. W. O. C. cards clown to the mill, . . . they
found out I carried them and laid me off and put her on my machine,.
and she worked that week." Thereafter, Mrs. Robertson was de-
inoted to the status of an extra on the second machine for approxi-
mately two weeks preceding the strike and shut-down on June 1,
1937.
For five or six days after the strike settlement on July 1, 1937, Mrs._
Robertson was unsuccessful in her requests to be returned to work.
Mrs. Hill was at work during that time. She had returned to work
with the back-to-work movement a few days before the strike was.
settled. Mrs. Robertson requested one of the foreladies to divide
Mrs. Hill's work between both of them. The forelady referred her
to Mr. Moench, apparently a superior supervisory employee, but
Moench declined her request on the ground, Mrs. Robertson testified,.
that " it would not be fair" to Mrs. Hill, since "she took all the risk
and went back to work with then in the mill." Approximately a
week after the strike settlement of July 1, 1937, Mrs. Robertson was-
:again put to work. She was not returned to her first machine, how-
ever, but to the second one, and during the four months between the
strike settlement and the hearing she received irregular part-time
employment as an extra.
Mrs. Robertson testified on cross-examination that she did not-
know whether Mrs. Hill was receiving preferential treatment sub-
sequent to Mrs. Robertson's reinstatement to irregular part-time em-
ployment after the strike. It is clear, however, that in the tem-
porary lay-off and the demotion to an irregular part-time job im-
mediately preceding the strike there was discrimination based upon
membership and activity in the T. W. O. C. which constituted inter-
ference, restraint, and coercion within the meaning of Section 8 (1)
of the Act.12 We further infer from Mbench's remark and the course-
of practice with respect to the first and second machines that Mrs.
i2 Cf. Matter of Pennsylvania Greyhound Lines, Inc, Greyhound Management Com-
pany Corporations and Local Division No 1064 of the Amalgamated Association of Street,.
Electric Railn,ay and Motor Coach. Employees of America, 1 N L R B 1, 36, 37
C
9 1 8 NATIONAL LABOR RELATIONS BOARD
Hill has been permanently moved up to take Mrs. Robertson's place
at her first machine and that Mrs. Robertson has been relegated to
Mrs. Hill's place as the one who is called upon to perform only such
work as exceeds the capacity of the first machine. It is not con-
tended that the strike was caused or prolonged as a result of an
unfair labor practice nor that Mrs. Robertson went out on strike in
protest against her own discriminatory demotion. It is true that
Mrs. Hill's application for reinstatement during the time of the
strike when Mrs. Robertson was not available left the respondent no
alternative but to put her in Mrs. Robertson's former position on the
first machine. Approximately five days later, however, Mrs. Robert-
son applied for work. She had had approximately seven years of ex-
perience as a border runner. Mrs. Hill had been an irregular part-
time employee for less than a year with the exception of the several
weeks that she had been given preference. The respondent neverthe-
less preferred to continue Mrs. Hill in the full-tine position, assign-
ing as a reason merely her return to work five days before Mrs.
Robertson. Taking all the events leading up to the respondent's
action, we cannot believe that its motive for continuing Mrs. Hill in
the superior position was her earlier application for reinstatement.
The circumstances surrounding the reinstatements lose their impor-
tance when viewed in the light of the discrimination against Mrs.
Robertson previous to the strike. The conclusion is inescapable that
her reinstatement to the same inferior position to which she had
been unfairly relegated prior to the strike was motivated merely
by the continuation of the respondent's former animus toward her.
We find, therefore, that Mrs. Roxie Robertson has been discrim-
inatorily demoted to her present position, and that the respondent has
thereby interfered with, restrained, and coerced employees within the
meaning of Section 8 (1) of the Act. We further find that Mrs.
Robertson has been an employee of the respondent within the mean-
ing of Section 2 (3) of the Act throughout the entire period during
which we have found discrimination against her.
Berryl Hedgepathb was employed by the respondent in November
1936. She was a member of the T. W. 0. C. at the time of the strike.
That her membership was active and known to the respondent is
obvious from the fact that she is named among 13 individual parties
defendant in a bill for an injunction to prohibit alleged unlawful
picketing and related conduct filed on July 1, 1937, by the respondent
against the T. W. 0. C. in the Chancery Court of Davidson County,
Tennessee.
Prior to the strike, Berryl Hedgepath worked on the day shift. Al-
though she applied for work on July 6, 193'7, she was not reinstated
until July 12, 1937, and then she was placed on the night shift despite
her expressed request for work during the day. Walling, the fore-
DECISIONS AND ORDERS 919
man, told her that others had been employed in her place on the day
shift but that he would do all that he could to have her transferred.
She was never transferred.
Bearing in mind that it was not shown that the strike was caused
by unfair labor practices, nor that there was any discrimination as
to Berryl Hedgepath up to this time, we believe that it is immaterial
whether her place had been filled before or after the strike settlement.
It was not shown that an opening on the day shift remained for
Berryl Hedgepath at the time she applied for reinstatement. We
cannot infer merely from the fact that she was named in the injunc-
tion complaint that her reinstatement was delayed until July 12, 1937,
in order to fill her place with other employees. Assuming that her
place was filled, we are not told by whom. We are convinced from
the respondent's evidence that the reinstatements of groups of em-
ployees over a period of approximately two weeks were caused by
the necessity of resuming operations gradually.
On July 30, 1937, Berryl Hedgepath voluntarily left the employ of
the respondent because of the illness of one of her children. She
was unable to apply for reemployment for five or six weeks. She has
not been able to obtain reemployment on any shift since that time.
The reason given then and now by the respondent for refusing to
reemploy her is that new hands were employed during her voluntary
absence on positions similar to the one she had held and that no place
remains available. The respondent's records bear out its contention
that these new hands were employed during the period of her volun-
tary absence and not subsequent to her application for reemployment.
We find that there was and is no interference with, restraint, or
coercion of employees, in the exercise of the rights guaranteed in
Section 7 of the Act, by reason of the respondent's reinstatement of
Berryl Hedgepath to an undesirable shift or by reason of the sub-
sequent refusal to reemploy her.
B. Interference with, domination, and support of Ingram's
Employees Council
We have reviewed some of the circumstances with respect to the
disparagement of the T. W. O. C., the attempts to discredit its
representatives, and the efforts made to impede its' organizational
activities. In sharp contrast, we find the record replete with evidence,
largely uncontradicted, of the respondent's interference in support of
the Council.
A. C. Carnes, an employee of the respondent, testified that' ap-
proximately a week before the strike of June 1, 1937, Ed Ivey,13
13 Ed Ivey is referred to indiscriminately in the transcript as "Ivy" or "Ivey". It is
clear that both names are meant to designate the same individual, and we will hereafter
refer to him as "Ivey".
80535-38-59
920 NATIONAL LABOR RELATIONS BOARD
J
one of the respondent's foremen, approached him. "Mr. Ivey offered
me a card and said, `You better join the company union.'" Carnes
understood him to refer to the Council. Carnes declined to join at
that time. ' Shortly after the termination of the strike, Ivey ap-
proached Carnes again while at work and ordered Carnes to report
to Mrs. Gordy's office. Mrs. Inez Gordy was employed as a time-
keeper; her office was among the clerical offices at the respondent's
plant. She was the wife of the superintendent of the plant. Carnes
reported to Mrs. Gordy's office. While he was there, Ivey walked in.
Carnes testified that Mrs. Gordy requested him to sign a card 14 con-
taining an authorization for the Council to act as the subscriber's col-
lective bargaining agent in negotiations with the respondent. When
Carnes indicated that he was reluctant to join the Council, Mrs.
Gordy said: "Well, you know we all want to hold our jobs." Ivey
offered the further inducement that a job would be obtained for
Carnes' stepdaughter, and there was talk of a substantial general
wage increase. This importuning had the desired effect. Carnes
testified :
Well, I signed it to hold the job. I do not know but -%tihat it
would keep me on the job or whether it would release me. I
signed it for the overseer I work for more than anything else.
No evidence was introduced by the respondent to prove that Ivey
and Mrs. Gordy did not behave in the manner described. Part of
its defense to the incidents described was to point out on cross-
examination that despite the fact that Carnes was persuaded by these
unlawful means to join the Council, his stepdaughter was not em-
ployed by the respondent and that the general wage increase made
effective soon after the strike was far below the amount held out
as an inducement by Ivey and Mrs. Gordy. But the vice of solicita-
tion of membership for a labor organization by a supervisory em-
ployee and by the wife of a member of the management is not cured
by the respondent's failure to fulfill inducements held out by them.
Such solicitation by those close to the employer is in itself enough
to create the impression of employer support. The usual authority
of such employees and, in this instance, the use of the respondent's
time and the respondent's property indicated that the respondent
itself was making its will known.
During the period immediately after the termination of the strike,
a production employee named Hickerson was approached during
working hours by another employee named Bates who informed him
that those who desired to join the Council were reporting to the office
of Mrs. Gordy. Hickerson testified that during this conversation
with Bates, Ivey, his foreman, "came up and asked Bates if he was
11 Board Exhibit No. 11.
DECISIONS AND ORDERS 921
trying to get me to go up there and sign one of those cards,, and
Bates said be was." Ivey accompanied Hickerson to the door of Mrs.
Gordy's office. Hickerson walked into the office and requested to see
a Council card. Mrs. Gordy handed him a card similar to the one
presented to Carnes. The card had been lying on her desk. Asked
what further transpired between him and Mrs. Gordy at that time,
the witness replied: "Well, she told me that it meant my job if I did
not sign this, and then I looked at her and she explained to me she
did not mean I would get fired, she meant if we went out on another
strike she did not believe the mill would open up any more." Nick-
erson signed the card. That evening he asked Mrs. Gordy to with-
draw his name. Before she had an opportunity to do so, lie was
persuaded by another employee to remain a member of the Council.
Mrs. Stella Etheridge, an employee of the respondent, testified that
she too was approached during working hours, on the morning after
the strike was settled, by another employee of the respondent. She
"came around with a card 15 and asked me if I wanted to sign it, and
I told her no . . ."
These occurrences within the plant during working hours are to
be contrasted with the discriminatory demotion" of Mrs. Robertson
for carrying T. W. 0. C. cards into the plant.
Ivey figures also in the solicitation of three other employees.
Shortly after McNeese's reinstatement following the strike, Ivey
visited him at his home with a Council card. McNeese testified :
Well, he asked me to sign this card in order to be a member of
their organization, and if I would sign this card I would hold
my job and get a raise.
Mrs. Lucille Cristman and Thomas Taylor were reinstated to
positions in the respondent's plant shortly after the strike. Soon
after returning to work, they were together when met by Ivey in
front of the plant. Taylor's testimony, corroborated by Mrs. Crist-
man, is as follows : - ,
A. He just walked up to me and says, "You all want to join
up with us." I said, "Well, I don't know ; I will study about it."
And he says, "Well," he says, "it is a mighty good thing." He
says, "I don't believe there is anything to the other," and I said
"I don't "
Q. . . . what do you mean by the other?
A. C. I. 0., I reckon is what he meant.
A.... and he walked up and says, "You are going home now,"
and I said "No, I don't know," I said, "I was thinking about
15 Board Exhibit No 11 ( a Council card).
922 NATIONAL LABOR RELATIONS BOARD
walking back up that way." And he said, "Get in the car and I
will let you ride," and I got in the car and he says, "Well," he
says, "You all decided to sign up with us," when we got up in
front of the house, and I said "I don't know what to do." I said,
"I am in a jam, and I don't know what to do. I will study it
over," and he give us one of those cards.
In addition to the Council authorization card similar to that pre-
sented to Carnes and Hickerson, a Council circular 16 was handed
to Dirs. Cristman and Taylor by Ivey while in Ivey's automobile.
The vice of this circular lies in the fact that it came from a foreman
whose acts in this regard are to be regarded as those of the man-
agement.
The circular reads in part as follows :
These outside high-pressure organizers are not in town here
because they love you. They are only interested in one thing.
And that is their fees or salaries that will eventually come
from the working man's pockets. They will eventually get
THEIR pay-off, no matter how much it hurts the working man
or makes him suffer.
BUT, the important thing is THIS : Do YOU think our em-
ployers will grant the demands of a high-pressure organizer
anywhere as quick as he would grant the demands of an inde-
pendent employee's organization that HONESTLY represents
the workers demands? YOU KNOW THE ANSWER ! The
Employee's Council will get MORE things done, with more
PERMANENT AND LASTING benefits than any outsiders
group that is merely here to make its fees at working man's
expense.
We are all grown-ups and know what we want without any
racket of communistic organizers to tell us, and we CAN GET
IT, because we are the employees that our boss expects to build
his business with,
Later that day, Ivey met Mrs. Cristman and Taylor again, this
time in a grocery store. Mrs. Cristman testified :
Mr. Ivey come up there and got after us again to sign, and me
and Thomas both signed it . . .
We have already described the remarks of Shelton, a supervisory
employee employed as a section man, calculated to discredit the
T. W. O. C. These remarks, to the effect that the respondent would
go out of business before signing a contract with the T. W. O. C.,
were made to Annie Mae Neeley. This witness also testified to a
16 Board Exhibit No. 12.
DECISIONS AND ORDERS 923
conversation with Walling, a supervisory employee in charge of
both the night and the day shifts. This conversation took place
shortly after the return to work following the strike. Neeley
testified :
Well, I asked him how many members did he have in the
Ingram Council, and how many was signed up , and he said he
had a majority . Well, I never said nothing then , and he said,
"Well, I tell you the CIO never will be no account down in
Ingram's plant because Ingram would never sign a contract.
He would shut it down before he would sign . . ."
Remarks of Walling to Mrs. Stella Etheridge were also directed to
the support of the Council at the expense of the T. W. O. C.:
... Mr. Walling came around and I asked him what did the
card 17 mean and what was there to the company union and
asked . him what was his advice on it, and he told me-asked me
if I wanted to work, and I told him I certainly did, and he said
well, he would advise me to sign the company union , because
Mr. Ingram would never sign a CIO contract-he would let the
mill sit there and rot.
Such remarks as those of Walling and of Shelton are not to be
deemed privileged , although the respondent contends otherwise, on
the ground that they were made in reply to requests for information
or advice made by non-supervisory employees . The duty to remain
aloof and impartial under all circumstances is clear. Employees who
request advice of supervisors are uncertain as to which course to
pursue, and they may also be fearful that the employer may frown
upon a contemplated step in the direction of engaging in concerted
activities . Interference at this point necessarily restrains or coerces
employees in the exercise of rights guaranteed by the Act.
Neither Ivey, Shelton , nor Walling was called to the witness stand
by the respondent despite the nature of the evidence concerning them.
In point of fact, it was admitted at the hearing by Ingram, the
president of the respondent , and by Sims , counsel for the respondent,
that Barber , a representative of the T. W. O. C., complained during
the second week in July 1937 of Ivey's partisan activities. Ingram
and Sims both testified that steps were taken to reprimand and to
warn Ivey. It was pointed out, moreover , on behalf of the re-
spondent , that rivalry and unrest between the two labor organiza-
tions during May 1937 prompted Ingram to request Sims to address
a gathering of officers , supervisors , and foremen with respect to their
duties under the Act. This meeting took place about the middle of
37 The witness referred here to the Council authorization card similar to Board Exhibit
No. 11 which another employee had just asked her to sign.
924
NATIONAL LABOR RELATIONS BOARD
May 1937. We are persuaded, however, from convincing and abun-
dant evidence in this record and from the virtual absence of counter-
vailing evidence, that Ivey, Shelton, and Walling were in fact
responsible for the activities in support of the Council as herein
described. To this the respondent replies, and this is its principal
contention, that it sought to prevent such conduct on the part of its
supervisory employees by instruction and by reprimanding Ivey,
and that such interference and support as occurred were unauthor-
ized and beyond its power to prevent, and that therefore it cannot
be held responsible for engaging in unfair labor practices.
We cannot share the respondent's view that it is without fault.
Neither Ivey, Shelton, nor Walling was called to corroborate the
testimony concerning the alleged instructions and, in Ivey's case, the
alleged reprimand. More important, Ingram and Sims knew of the
interference by supervisory employees on behalf of the Council, and
they testified that they communicated with Gordy, the superintend-
ent, and with Ernest Jones, Sr., the general manager, with regard to
the interference. Thus, by the testimony of Ingram and Sims them-
selves, although four men acting in the interests of the management
knew of the support rendered the Council by one or more of the
supervisory staff, there is not a trace of evidence to show that any
effort was made openly to repudiate those activities as foreign to the
policy and desires of the respondent. The management having made
no move to disclaim the activities of its ostensible agents, it cannot
with persuasiveness contend that by an attempt to bring a. halt to
further similar conduct it disassociated itself from the Council in the
minds of its employees. Moreover, the fact that the management does
not show that it conveyed notice of repudiation to its employees lends
itself to the inference that it was content to allow the alleged misap-
prehension concerning the respondent's support of the Council, which
must have gained wide credence, to continue to influence and interfere
with employees in a manner tantamount to continued support by the
respondent itself. No injustice is involved if responsibility for the
effect of the support of the Council by supervisory employees is placed
upon the respondent. The respondent is, therefore, estoppel to dis-
avow the activities of its supervisory employees in support of the
Council.
One further instance of support for the Council must be attributed
to the respondent. For several days before the strike a notice explain-
ing the virtues of the Council was pasted to the glass on the inside
of the door of a locked time clock within the respondent's plant.
Approximately 350 to 400 employees in the Yarn Department of the
respondent's plant must register on the time clock twice a day. Al-
though counsel for the respondent brought out that it was common
practice for an employee to affix any notice he wished to the outside
DECISIONS AND ORDERS 925
of the clock, this notice apparently occupied a unique and favored
position inside the glass door. A key to the door of the clock can
only have been in the possession of some supervisory employee. We
are given no explanation by the respondent, and we can only infer
that it was intended thus to favor the Council and, indeed, to sug-
gest to employees that the Council had the sanction of the manage-
ment.
We have duly noted and credited the evidence introduced into the
record on behalf of the respondent to the effect that there was no
employer interference with the formation of the Council at its in-
ception. We note also that the respondent declined to bargain with
the Council upon request on the ground that it was not satisfied that
the Council represented a majority of employees. In view of the
similar claims and demands which were being made concurrently by
the T. W. 0. C., and in view of the substantial doubt as to which or-
ganization, if either, had majority status, the respondent had no choice
under the Act but to decline to recognize the Council as a bargaining
agent until certification. In any event, where the Board finds inter-
ference, domination, and support of the character set forth above, the
absence of employer influence at the creation of a labor organization
and the refusal of an employer to bargain with that organization
upon request cannot constitute a complete defense to an allegation
under Section 8 (2) of the Act. Section 8 (2) provides that it shall
be an unfair labor'practice for an employer
To dominate or interfere with the formation or administration
of any labor organization or contribute financial or other support
to it .. .
Upon the basis of the support and assistance rendered the Council
in solicitation for its membership drive, and upon the basis of indirect
aid afforded the Council by the means of disparaging and discredit-
ing the T. W. 0. C. in order to weaken it as an effective rival, we find
that the respondent has dominated and interfered with the formation
and administration of the Council and has contributed support to it,
within the meaning of Section 8 (2) of the Act.
We further find that by reason of the conduct described above the
respondent has interfered with, restrained, and coerced its employees
in the exercise of rights guaranteed by Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
The activities of the respondent set forth in Section III, above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the several States, and tend
926 NATIONAL LABOR RELATIONS BOARD
to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
We have found that the respondent has dominated and interfered
with the administration of the Council and has contributed support
to it.
In order to effectuate the policies of the Act and free the employees
of the respondent from the domination and interference of the re-
spondent accomplished through its activities in connection with the
functioning of the Council , we shall order the respondent to with-
draw all recognition from the Council , and to disestablish it as a rep-
resentative of the employees for the purpose of dealing with the
respondent concerning grievances , labor disputes , rates of pay , wages,
hours of employment , or other conditions of employment.
VI. THE QUESTION CONCERNING REPRESENTATION
After a drive for organization by the T. W. 0. C. during May
1937 , and towards the end of the month by the Council as well, the
respondent 's employees went out on strike on June 1, 1937. Upon
being presented with a proposed contract during the strike by the
bargaining committee of the T. W. 0. C., Sims, the respondent's
counsel and bargaining representative , declined to read or consider
it. The strike was settled by July 1, 1937, and the employees were
returned to work, over a period of several days, with the understand-
ing that the differences between the employees and the respondent
concerning wages, hours , and other conditions of employment would
be adjusted by bargaining . No agreement had been reached con-
cerning these matters by November 10 , 1937, the date of the hearing
in the complaint case.
During the week between the date on which the strike was settled
and the date on which petition was filed, the legal representative and
the bargaining agent of the T. W. 0. C. called upon Sims, the
respondent 's counsel and representative , and formally requested
recognition , on the claim of representing a majority of the respond-
ent's employees , as the exclusive bargaining agent of employees of
the respondent . Sims rejected the request on the ground that the
Council was making similar demands on him on the basis of signed
cards of authorization . The Council was, as we have found in Sec-
tion III B above, dominated , interfered with, and supported by the
respondent 's unfair labor practices , and the authorizations cannot be
considered , therefore , as a free and unfettered designation of a
representative under the Act. It was testified , without contradic-
tion, that, unless the question concerning the collective bargaining
representative of the respondent 's employees is resolved , there will
be further labor difficulties.
DECISIONS AND ORDERS 927
We find that a question has arisen concerning the representation
of employees of the respondent and that such question, occurring in
connection with the operations of the respondent described in Sec-
tion I above, has a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States, and tends to lead to
labor disputes burdening and obstructing commerce and the free flow
of commerce.
VII. THE APPROPRIATE UNIT
The petition for investigation and certification of representatives
alleged that mill-production employees of the respondent, exclusive
of supervisory and clerical employees, constitute an appropriate unit
for the purposes of collective bargaining. All production employees
of the respondent are eligible for membership in the T. W. O. C.,
but foremen and other supervisory employees and clerical employees
are not admitted. No evidence was introduced nor objection made
by the respondent to the unit contended by the T. W. O. C. to be
appropriate.
We find that the production employees of the respondent, exclud-
ing foremen, supervisory employees, and clerical employees, consti.
tute a unit appropriate for the purposes of collective bargaining and
that said unit will insure to employees of the respondent the full
benefit of their right to self-organization and collective bargaining
and otherwise effectuate the policies of the Act.
VIII. THE DETERMINATION OF REPRESENTATIVES
We further find that in order to determine the question of repre-
sentation which has arisen, it is necessary to conduct an election by
secret ballot. Because the respondent has dominated and inter-
fered with the formation and administration of the Council and has
contributed support to it, we shall make no provision for the desig-
nation of the Council on the ballots.
Those eligible to vote shall be the production employees, exclud-
ing foremen, supervisory employees, and clerical employees, who
were employed by the respondent during the pay-roll period next
preceding the date of the Direction of Election in this case.
Upon the basis of the above findings of fact and upon the entire
records in both cases, the Board makes the following :
CONCLUSIONS OF LAW
1. Textile Workers Organizing Committee and Ingram's Employees
Council are labor organizations within the meaning of Section 2 (5)
of the Act.
2. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the right to self-organization, to
928 NATIONAL LABOR RELATIONS BOARD
form, join, and assist labor organizations, 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, has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (1) of the Act.
3. The respondent, by dominating and interfering with the forma-
tion and administration of Ingram's Employees Council, and by
contributing support to it, has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (2) 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.
5. A question affecting commerce has arisen concerning the repre-
sentation of employees of the respondent, within the meaning of
Section 9 (c) and Section 2 (6) and, (7) of the Act.
6. The production employees of the respondent, excluding fore-
men, supervisory employees, and clerical employees, constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
ORDER
Upon the basis of the findings of fact and conclusions of law, and
pursuant to Section 10 (c) of the National Labor Relations Act, the
National Labor Relations Board hereby orders that the respondent,
Ingram Manufacturing Company, and its officers, agents, successors,
and assigns shall :
1. Cease and desist from :
(a) In any manner interfering with, restraining, or coercing its
employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, or to engage in concerted
activities for the purposes of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the National Labor
Relations Act;
(b) In any manner dominating or interfering with the adminis-
tration of Ingram's Employees Council, or with the formation or
administration of any other labor organization of its employees, or
contributing support to said organization or any other labor organi-
zation of its employees.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Withdraw all recognition from Ingram's Employees Council
as the representative of any of its employees for the purpose of deal-
ing with the respondent concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or, other conditions of employ-
DECISIONS AND ORDERS 929
anent; and completely disestablish Ingram's Employees Council as
such representative;
(b) Offer Mrs. Roxie Robertson immediate and full reinstatement
to her former position without prejudice to any seniority rights or
other rights and privileges previously enjoyed by her;
(c) Post immediately, and maintain for a period of at least
thirty (30) days from the date of posting, notices to all its em-
ployees in conspicuous places throughout the Ingram Manufactur-
ing Company plant stating (1) that Ingram Manufacturing Com-
pany will cease and desist as aforesaid; (2) that Ingram's Employees
Council is disestablished as the representative of any of their em-
ployees for the purposes of dealing with it with respect to griev-
ances, labor disputes, wages, rates of pay, hours of employment, or
other conditions of employment, and that Ingram Manufacturing
Company will refrain from any such recognition thereof ;
(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 therewith.
It is further ordered that the allegations in the complaint that
the respondent has engaged in unfair labor practices, within the
meaning of Section 8 (3) of the Act, by discharging and refusing to
reinstate Herbert Tyner, Herman Louis Watson, and Boyd Harris,
be, and they hereby are, dismissed without prejudice.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor
Relations Act, 49 Stat. 449, and pursuant to Article III, Section 8,
of National Labor Relations Board Rules and Regulations-Series 1,
as amended,
IT IS HEREBY DIRECTED that, as part of the investigation authorized
by the Board to ascertain representatives for collective bargaining
with Ingram Manufacturing Company, Nashville, Tennessee, an
election by secret ballot shall be conducted within twenty (20) days
from the date of this Direction, under the direction and supervision
of the Regional Director for the Tenth Region, acting in this matter
as agent for the National Labor Relations Board, and subject to
Article III, Section 9, of said Rules and Regulations , among the
production employees of Ingram Manufacturing Company, exclud-
ing foremen, supervisory employees, and clerical employees who were
employees of the respondent during the pay-roll period next pre-
ceding the date of this Direction, to determine whether or not they
desire to be represented by Textile Workers Organizing Committee,
affiliated with the Committee for Industrial Organization, for the
purposes of collective bargaining.