Jac. Feinberg Hosiery Mill, Inc.

National Labor Relations Board - Board Decisions

Feb 18, 1942

38 N.L.R.B. 1359 (N.L.R.B. 1942)

In the Matter of JAC. FEINBERG HOSIERY MILL , INC. and AMERICAN
FEDERATION OF HOSIERY WORKERS
Case No. C-1981.-Decided February 18, 1942
Jurisdiction : silk,stocking manufacturing industry.
Unfair' Labor Practices
Interference, Restraint, and Coercion: statements of superintendent.
Discrimination: employer discriminated with respect to -the terms and condi-
tions of employment of reinstated employees who had been discriminatorily
discharged once before by discriminatorily refusing to permit them to smoke
in office, refusing to explain operation of unfamiliar machines, inspecting
their work discriminatorily, refusing one of them the' privilege to exchange
certain work, and warning them of impending discharge for unsubstantiated
causes; employer thereafter discharged these employees upon appearance
of, convenient pretext.
Remedial Orders : reinstatement and back pay.
Practice and Procedure : discrimination in terms and conditions of employment
is within scope of case where complaint alleged that respondent discharged
employees and otherwise discouraged union membership, such discrimination
was fully litigated by the parties, and pleadings were amended to,conform to
proof. -
Mr. Earle K. Mhawe, for the Board.
Wilson cQ Wilson, by Mr. W. B. Wilson and Mr. D. B. Wilson, of
Rock Hill, S. C., and Mr. Frank Buckley, of Washington, D. C.,-for
the respondent.
Mr. W. Cedric Stallings, of Charlotte, N. C., for the Union.
Mr. Milton E. Harris, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by American Federation of Hosiery
Workers, herein called the Union, the National Labor Relations
Board, herein called the Board, by the Regional Director for- the
Tenth Region (Atlanta, Georgia), issued its complaint dated July
22, 1941, against Jac. Feinberg Hosiery Mill, Inc., herein called the
respondent, Rock Hill, South Carolina, alleging that the respondent
38 N. L. R. B., No. 242.
1359
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 , containing a notice
of hearing thereon, were duly served upon the respondent and the
Union.
With respect to the unfair labor practices , the complaint alleged
in substance : ( 1) that on May 3, 1940 , the respondent and a repre-
sentative of the Board entered into a stipulation providing for the
entry of a consent decree in the United States Circuit Court of
Appeals for the Fourth Circuit,' disposing of all the matters arising
out of a complaint theretofore issued by the Board against the re-
spondent ; that the respondent therein agreed to offer to Earle Crowe
and Richard Holyfield, employees of the respondent , immediate and
full reinstatement to their former or substantially equivalent posi-
tions without prejudice to their seniority and other rights and priv-
ileges; and that an May 21, 1940 , the respondent reemployed Crowe
and Holyfield ; ( 2) that on August 23, 1940, the respondent discrim-
inatorily discharged Holyfield; (3) that on September 9, 1940, the
respondent discriminatorily discharged Crowe; and (4) that since
May 3, 1940 , the respondent continued to discourage membership in
the Union by advising, urging, and warning employees not to join
or assist the Union or attend its meetings , by threatening open hos-
tility to the Union and its activities , and by threatening employees
with discharge and discrimination if they assisted the Union.
On August 4,'1941 , the respondent filed its answer , admitting the
allegations of the complaint concerning the stipulation and the dates
of the reemployment and subsequent discharge of Crowe and Holy-
field, but denying that it had engaged in the alleged unfair labor
practices, and averring by way of affirmative defense that it had
discharged Holyfield for "shortage in count of work turned in after
receipt of proper warning, in violation of posted rule," and
Crowe for "failure to report to work and failure to notify the
Respondent of his intention not to report , in violation of posted
rule."
Pursuant to notice , a hearing was held 'from August 4 to 8, 1941,
at Rock Hill, South Carolina , before Mortimer Riemer, the Trial
Examiner duly designated by the Acting Chief Trial Examiner.
The Board and the respondent , represented by counsel , and the
Union participated in the heating. Full opportunity to be heard, to
examine and cross-examine witnesses , and to introduce evidence bear-
ing on the issues was afforded all parties . At the commencement
The consent decree is hereinafter fully described in Section III B
JAC. FEINBERG HOSQERY MILL, INC. 1361
of the hearing, the respondent moved for a 30-day continuance, on
the ground that its president, Abraham Feinberg, was an essential
witness and could not be present because of urgent business. The
Board attorney opposed the motion, on the ground that Abraham
Feinberg was not involved in any of the alleged unfair labor prac=
tices. The motion was denied. The respondent then moved to dis-
miss or in the alternative to strike the allegations of the complaint to
the effect that it had since May 3, 1940, continued to discourage mem-
bership in the Union, on the ground that such allegations were not
based on any charge filed in compliance with National Labor Rela-
tions Board Rules and Regulations= Series 2, as amended,2 and on
the further ground that such allegations did not constitute a suf-
ficiently clear statement to enable it to prepare its defense. The
motion was denied. The Trial Examiner then directed counsel for
the Board to furnish to the respondent the names of all the respond-
ent's officers, agents, and supervisory employees who were alleged by
the Board-to have discouraged membership in the Union. Pursuant to
this ruling, counsel for the Board stated these names on the record.
The name of Abraham Feinberg was not included. At the -conclusion
of the Board's case, the respondent moved for a continuance "under
instructions from Mr. Feinberg," and stated that if, the continuance
were not granted it would be ready to proceed the following morning.
The motion was denied. At the conclusion of the hearing, counsel for
the Board moved to conform the pleadings to the proof. The respond-
ent stated that it had no objection to the motion, provided it be without
'prejudice. The motion was granted. Thereafter the respondent moved
to conform its answer to the proof. The motion was granted. Oral
argument was then had on the record, and counsel were afforded an
opportunity to file briefs with the Trial Examiner. The respondent
renewed its motion to dismiss or in the alternative to strike certain
allegations of the complaint. The motion was denied. The respond-
ent then moved to dismiss the complaint for failure of proof. Ruling
was reserved on the motion, which was denied in the Intermediate
Report. The respondent thereafter filed with the Trial Examiner
a statement of its position in lieu of 'a brief. During .the hearing and
in the Intermediate Report the Trial Examiner made various rulings
on other motions and on objections to the admission of evidence. The
Board has reviewed all the rulings of the Trial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed.
3 The charges upon which the complaint was issued alleged that the respondent discharged
Crowe and Holydeld because of their membership and activity in the Union, and otherwise
interfered with its employees in the exercise of the rights guaranteed in Section 7 of the Act.
438861-42-vol. 38-87
1362 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD
On October 4, 1941, the Trial Examiner filed his Intermediate
Report, copies' of which were duly served on the respondent and on
the Union. The Trial Examiner therein found that the respondent
had engaged in unfair labor practices affecting commerce, within the
meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the
Act, and recommended that the respondent cease and desist there-
from and offer reinstatement and back pay to Crowe and Holyfield.
On October 28, 1941, the respondent filed exceptions to the Inter-
mediate Report and other parts of the record, moved to dismiss the
complaint, and requested permission to argue orally before the Board.
Pursuant to notice, a hearing for the purpose of oral argument was
thereafter scheduled to be held before the Board in Washington, D. C.,
on December 9, 1941. On December 4, 1941, the respondent requested
postponement of the scheduled hearing. Pursuant' to notice, the
scheduled hearing was thereafter postponed to December 18, 1941.
On December 18, 1941, no party appeared to present, oral argument.
The Board has considered the exceptions, and insofar as they are
inconsistent with the findings, conclusions, and order hereinafter set
forth, finds them to be without merit. For reasons hereinafter set
forth, the motion to dismiss the complaint is hereby denied.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
'I. THE BUSINESS OF THE RESPONDENT
The respondent, Jac. Feinberg Hosiery Mill, Inc., is a South Car-
olina corporation, with its only mill located at Rock Hill, South
Carolina, where it is engaged in the manufacture of full-fashioned
silk hosiery on contract for Jac. Feinberg & Sons, Inc., of New York
City. All the raw material used by the respondent (consisting an-
nually of approximately 80,000 pounds of thrown silk of the esti-
mated value of $225,000, and approximately 10,000 pounds of cotton
of the estimated value of, $10,000) are delivered to -the respondent's'
mill from points outside the State of South Carolina. Prior to about
March 1, 1941, Jac. Feinberg & Sons, Inc., purchased the respondent's
entire output in the "gray" 3 stage of manufacture, and caused it to
be delivered from the respondent's mill to its own place of business in
New York City. Subsequent to that date, the respondent continued
to operate in substantially the same manner, except that its transac-
tions with Jac. Feinberg & Sons, Inc., were changed to a straight
commission knitting basis. At the time of the hearing, the respond-
ent employed about 270 employees.
8 A "gray" stocking is one that is knit but not yet dyed or finished.
JAC. FEINBE 'RG HOSIERY MILL, INC.
H. THE LABOR ORGANIZATION INVOLVED
1363
American Federation of Hosiery Workers is a labor organization
affiliated with the Congress of Industrial Organizations. It admits to
membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background
Earle Crowe was first employed by the respondent for a few
months in 1933 or 1934. He was a skillful knitter, and in 1935
reentered the respondent's employment at the request of a super-
visory employee. Late in April 1937 the Union renewed an attempt,
begun and abandoned in 1934, to organize the respondent's em-
ployees. Richard Holy fiield was first employed by the respondent
in May 1937 , as a spare knitter, and after about 3 weeks was pro-
moted to the job of regular knitter by Superintendent Thomas B.
Durham. Thereafter Crowe and Holyfield became leaders in the
Union's organizational activities. On July 13, 1937, the respondent
discharged Crowe and Holyfield. Thereafter the Union filed unfair-
labor-practice charges with the Board, on the basis of which the
Board instituted a proceeding, herein called Case No. C-774, against
the respondent. After the usual proceedings, the Board on January
19, 1940, issued its Decision, Order, and Direction of Election in
that case,4 finding in part that-the respondent, "strongly opposed"
the organization of its employees by the Union, that Crowe and
Holyfield were leaders in the Union's efforts to organize the em-
ployees and were well known to the respondent as such, and that
their discharge was discriminatory. ' The Board accordingly or-
dered the respondent, in part, to cease and desist from discouraging
membership in the Union by discriminating in regard to employ-
ment, and from interfering with, restraining, and coercing em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act; and to offer Crowe • and Holyfield immediate and full rein-
statement to their former or substantially equivalent positions with-
out prejudice to their seniority and other rights and privileges.
B. The discharges; interference, restraint, and coercion
On May 3, 1940, the respondent and a representative of the Board
entered into a stipulation and proposed consent decree in settlement
of Case No. C-774, subject to the Board's approval. The, proposed
consent decree provided in part that the Board's Order of January
4 Matter of Jac. Feinberg Hosiery Mill, Inc, and American Federation of Hosiery Workers,
North Carolina Dtstrtct, 19 N. L. R B 667.
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
19, 1940, be modified, in respects here immaterial, to require the
respondent, in part, (1) to cease and desist from discouraging mem-
bership in the Union by discriminating in regard to hire or tenure
of employment or any term or condition of employment, and from
interfering with, restraining, or coercing employees in the exercise
of the rights guaranteed in Section, 7 of the Act, and (2) to offer
Crowe and Holyfield immediate and full reinstatement to their
former or substantially equivalent positions without prejudice to
their seniority or other rights and privileges; and that the Order
as so modified be enforced. The Board approved the stipulation on
May 14, 1940.5
Upon reporting for work on May 21, 1940, Crowe and Holyfield
were interviewed by Personnel Manager Harvey E. Baer in the
latter's office. As the interview commenced, Crowe lighted a ciga-
rette. Baer, who was smoking, ordered Crowe to extinguish his
cigarette. Crowe remarked, "I noticed you were smoking." Baer
replied according to Crowe's uncontradicted testimony, "Lots of
things I do you can't do." Baer admitted allowing other employees
to smoke in his office, but claimed that he objected to Crowe's smok-
ing on this occasion because it was "offensive" to him.
Both men were then told to sign an employment card, and did so.
One side of the card reads, in part : _
I hereby state that in accepting employment (or reemploy-
ment) with the Jac. Feinberg Hosiery Mill, Inc., I clearly
understand that such employment is for a probationary period,
the length of which is to be determined by the officials of that
mill.
The cards were received in evidence at the hearing, and bear a line
through the words "I clearly understand that such employment is for
a probationary period, the length of which is to be determined by the
officials of that mill." Both Crowe and Holyfield testified that this
line was not there when they signed their cards. Harvey Baer
testified that he believed he inserted the line prior to the signing but
was not sure, and he did not otherwise deny the testimony of Crowe
and Holyfield. We find that no words were crossed out prior to
the signing.
David R. Baer, the respondent's vice president and general man-
ager and. the son of Harvey Baer, testified that he required both
Crowe and Holyfield to sign the cards because he 'considered' them
new employees for that purpose. The card that Holyfield signed
states that the date of his employment was May 21, 1940. Crowe's
5 On May 31 , 1940, the United States Circuit Court of Appeals for the Fourth Circuit duly
entered the proposed consent decree.
JAC. FEINBERG HOSQERY MILL, INC. 1365
card is blank in this respect, but states the date of his signature as
May 21, 1940. Harvey Baer testified that the date shown on the
card usually determines an employee's seniority.
Crowe and Holyfield then reported to Superintendent Durham, as
instructed. Although at the time of their discharge both men had
been on the same shift, Durham assigned Crowe to the morning shift
but told Holyfield to wait and report for work on the afternoon shift.
Crowe had operated the No. 9 "footer" at the time of his discharge
in 1937, and that machine was still in operation and was in such
mechanical condition as to be most desired by the knitters because
it had a higher productive rate. In addition, Crowe had more sen-
iority on the No. 9 machine than any other employee. Nevertheless,
he was assigned to the No. 3 "footer," which had the reputation of
being a "trouble maker." When Crowe complained to Harvey Baer
that he had not been reinstated to a position substantially equivalent
to the one from which he had been discharged, Baer replied, accord-
ing to Crowe's uncontradicted testimony, that it was for Baer and
not Crowe to judge. On making a similar complaint to Durham,
again according to Crowe's uncontradicted testimony, Durham told
him, "You work where I tell you to." Holyfield testified that the
employees regarded a transfer from the No. 9 to the No. 3 machine as
a demotion. Durham, when asked at the hearing if a knitter would
prefer the No. 9 over the No. 3 machine, testified that it was "just
like having a Ford and a Pierce-Arrow; over the Ford you would
prefer the Pierce-Arrow." Crowe estimated that because of the piece-
work basis on which he was paid he earned about $5 a week less
on the No. 3 machine than he would have earned on the No. 9
machine.(
It was the respondent's practice to give an employee a short period
of instruction when assigning him to an unfamiliar machine. This
was necessary even in the case of experienced knitters such as Crowe
and Holyfield. However, Durham instructed D. R. Hamilton, the
previous operator of the No. 3 "footer," not to help Crowe familiarize
himself with its operations, nor did Durham himself do so. Accord-
ing to Hamilton, it was "out of the ordinary" for Durham to order
him not to help Crowe. Crowe testified without contradiction that
when he asked Durham to show him how to operate the No. 3
"footer" or to have someone else show him, Durham replied :
Hell, no. You are a knitter and ought to know how to run it
... You [and Holyfield] are a damned bunch of mongers for
coming down here and taking these boys' jobs.
Near the close of the hearing the Board attorney stated, without contradiction , that the
respondent possessed records showing the comparative production of the No . 3 and the No. 9
machines.
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Crowe also testified, without denial by Durham, that at the same time
the latter told him that "the Union had caused all of this labor
trouble down there, they had had a hearing, putting theta to a lot
of trouble and coming back and taking these boys' jobs away from
them." Because Crowe's account of Durham's statements and conduct
is consistent with events occurring subsequently and is undenied, we
credit it, as did the Trial Examiner.
Crowe returned to his machine and "tried to figure it out." Not
successful, he again asked Durham for his help, whereupon Durham
turned to Hamilton and instructed the latter "to show that baby
how to run that machine." Durham did not deny having made such
a statement. Later in the day Crowe told Durham that he should
have been shown how to operate the machine in the first place. Dur-
ham answered, according to the testimony of-Crowe, that he did not
"give a damn" if Crowe made "but 5 cents a day." Durham testified
that he could not recall having given this answer. We credit Crowe's
testimony, as did the Trial Examiner.
When Holyfield reported for work on the afternoon shift, he was
assigned to a machine similar to the one he had operated at the time
of his discharge in 1937. Like Crowe, he was put to work without
any assistance in - familiarizing himself with the operation of his
machine.7 Knowing of Durham's attitude toward Crowe when Crowe
had, sought Durham's help earlier that day, Holyfield believed it
inadvisable to request Durham's assistance. With the aid of a co-
worker, Robert Gowder, he familiarized himself with the manner of
operating his machine.
Upon their reinstatement, Crowe and Holyfield revived organiza-
tional activity among the employees. They, together with Jack Brad-
shaw, an organizer employed by the Union, interviewed other em-
ployees at their homes and on the streets of Rock Hill, and urged
them to join the Union. According to Superintendent Durham, Sam
Giles (the former assistant superintendent) told him during the
period of reemployment of Crowe and Holyfield that certain em-
ployees had joined the Union.
The respondent's usual practice with respect to inspecting the work
of its knitters is to select only a single sample of a knitter's daily
production, for inspection (1) as to count (each bundle, on the basis
of which a knitter is paid, is supposed to contain 24 stockings), and
(2) as to quality of workmanship." As to Holyfield, however, the
7 Regardless of Halyfield 's ability as a knitter , he had not been employed by the respond-
ent for about 3 years and was unfamiliar with the peculiarities of the particular machine
to which he was assigned.
8 This latter inspection is made prior to the next operation ( looping and seaming, which
tends to conceal many defects from the final inspection to which the finished product is
subjected ), and is referred to as "fiat" inspection.
JAC. FEINBERG HOSIERY MILL, INC.' 1367
head inspector, Edna Barnwell, admitted that all his work, and not
just the usual daily sample, was both counted and inspected "flat"
throughout the period of his reemployment.' The respondent con-
tended that this was done for cause, since a few shortages had been
,discovered in Holyfield's count and, according to Barnwell, he "had
more bad work than any other knitter that has ever been there since
I [Barnwell] have been there." However, Superintendent Durham
testified that the quality of Holyfield's work was no worse than that
of " any other employee that we had," and that, with respect to count,
shortages were not unusual "once in a while," that the employees
all knew that their work was, counted and recounted by various in-
spectors, and that habitual short counting was bound to be discovered.
As to Crowe, Barnwell testified that his work was "never as bad"
as that of Holyfield, whose work Superintendent Durham had ad-
mitted was no worse than that of any other employee. Neverthe-
,less,' as was the case with Holyfield, the respondent subjected all
Crowe's work, and not just the usual daily sample, to "flat" inspection
throughout the period of his reemployment.
Shortly prior to August 1, 1940, Holyfield was refused the priv-
ilege, accorded to other employees, of exchanging "menders" for
good stockings in less than dozen lots.9 Holyfield was the. only
knitter to receive this treatment. The respondent asserted that Holy-
field was denied the privilege because he attempted to exchange
"menders" that had been knitted on a machine other than his own.
Holyfield denied that he had done so. In view of the improbability
of the respondent's assertion, since all stockings bore the stamp num-
ber of the machine on which they were worked and could be readily
traced, we credit Holyfield's denial, as did the Trial Examiner.
We find that Holyfield was the first knitter refused the unqualified
privilege extended to others of exchanging "menders" for good
stockings.
On August 1, Harvey Baer called Crowe to his office and in
Durham's presence handed him the following letter :
AUGUST 1, 1940.
EARLE CROWE , Operator,
#3 Footer, Present First Shift,
Jac. Feinberg Hosiery Mill, Inc., Rock Hill, S. C.
You are, hereby notified that pay-roll records show your pro-
duction on #3 Footer beginning May 21 (week ending May
25, 1940) and for the 39 days you worked following that date
to and including July 26 (week ending July 27, 1940) totalled
1304 dozen, a daily average of 334/10 dozen.
'8A "mender" is a stocking containing a slight defect which , by reworking , can be made
perfect. Two "menders " can be exchanged for one good stocking
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Operator on shift opposite to you, on same machine, worked
40 days in the same period, produced a total of 1659 dozen, an
average of 412/i o dozen per day.
Your failure to average normal production caused a loss in
production of 7%0 dozen per day, or a total loss in production
of 3042/10 dozen for the 39 days you worked.
This notice is a final warning that failure to reach normal
production will result in your discharge.
JAio. FEINBERG HOSIERY MILL, INC.
H. E. BAER [Signed].
Receipt of above notification and warning is hereby
acknowledged.
Crowe was asked to acknowledge receipt by signing the letter,
but was reluctant to do so. Instead, he told Harvey Baer that he
wanted an opportunity to take the letter to his boarding house,
think the matter over, and sign it the next morning if he believed
that signing it was the right thing to do. However, Harvey Baer
insisted that Crowe sign the letter at once. Crowe finally refused,
asserting that he would not sign until he had an opportunity to
think about the matter. Crowe's letter is unsigned, but bears a
written statement signed by Durham that Durham witnessed Crowe's
refusal to sign.
On the same day Harvey Baer called Holyfield to the inspection
cage and in Durham's presence handed him the following letter :
AUGUST 1, 1940.
RICHARD HOLYFIELD, Operator,
#5 Footer , Present Second Shift,
Jac. Feinberg Hosiery Mill, Inc., Rock Hill, S. C.
You are hereby notified that inspection of the twenty-eight
(28) dozen style 425 B stockings footed by you Thursday, July
25th, 1940, showed 107 stockings defective due to work for which
you were responsible . Defects consisted of
Narrowing Holes
Double Loops
Broken Needles on Selvages
Thin places through first course in foot.
This notice is a final warning that repetition of more than normal
bad work will be followed by discharge.
JAC. FEINBERG HOSIERY MILL, INC.,
H. E. BAER [Signed].
Receipt of above notification and warning is hereby acknowl-
edged.
JAC. FEINBERG HOSIERY MILL, INC. 1369
Holyfield acknowledged receipt by signing the original , as requested,
and was given- a copy. Durham also signed as a witness to Holyfield's
signature.
Not only did this occasion constitute the first warning that Crowe
or Holyfield had received concerning alleged deficiencies in their
work, but it was the first time that the respondent had ever used
such a device for warning any of its employees that they would be
discharged if their alleged deficiencies continued . Theretofore, cases
of unsatisfactory work were referred to Durham , Harvey Baer, or
some other supervisor , who would then confer with the knitter. As
to this unprecedented occasion , however, Harvey Baer testified that
it was he alone who had devised the novel plan of obtaining a wit-
nessed receipt for the warning letters, that he had not consulted
either David Baer or Superintendent Durham in evolving this plan,
and that his purpose was merely to impress upon Crowe and Holy-
field the "necessity of abiding by the rules ." But the record does
not support Baer's claim that there was any compelling necessity for
impressing only Crowe and Holyfield with the necessity of doing good
work. Moreover , Durham testified that he and Harvey Baer to-
gether had decided on the procedure for warning Crowe and Holy-
field. At another point Harvey Baer qualified his testimony by
claiming that he warned Holyfield on this occasion only because of
information received from Durham about Holyfield's work. But
Durham admitted that the quality of Holyfield 's work was no worse
than that of any other employee operating a machine similar to
Holyfield's.
Following the warning of August 1, as the Trial Examiner found,
Holyfield kept a record of all the allegedly defective stockings re-
turned to him. In a period of about 3 weeks 193 stockings were
returned to him as defectives . Of this quantity ; he considered that
no less than 67 were perfect . These 67 he merely marked and turned
in without reworking, and they were not thereafter returned again
to him as defective.
Shortly prior to August 23 , rumors of , an impending wage cut
spread throughout the mill . Holyfield , 'together with Crowe, urged
the employees to organize a committee to interview David Baer to
protest against the cut, notice of which was formally posted on
September 2. When Holyfield sought his pay on August 23, he
was told to see Harvey Baer. Holyfield did so, and was handed a
bundle of stockings , for the count of which Baer claimed that Holy-
field was responsible . Instead of 24 stockings , the bundle contained
20, a shortage of 4. Thereupon Harvey Baer said that, according to
1370 DECISIONS OF NATIONAL LABOR RFLATIONS BOARD
the respondent's rules and regulations, Holyfield was discharged for
short counting.10
Holyfield was then given his check and a separation notice which
stated that he was discharged for "Shortage in count of work turned
in after receipt of proper warning.-Violation of posted rule."
Holyfield had received one prior warning of a miscount. The warn-
ing occurred on or about August 6, 1940, when Holyfield was told by
Harvey Baer that he was short one stocking in one bundle and over
the count by one stocking in two other bundles. However, Holy-
field was not confronted with the bundles on that occasion, and
Baer did not attempt at that time or at the hearing to substantiate
his claim that the bundles were miscounted by Holyfield. On the
other hand, according to Head Inspector Barnwell, shortages in
Holyfield's work had been found on two occasions in June and one
in July, but not on or about August 6.11 Moreover, Holyfield testi-
fied that after August 1 he was particularly careful to count and
inspect all his work, because of the letter given him on that day.
Other employees called by the Board as witnesses testified that
shortages had been discovered in the count of their work and that
they had been warned by Harvey Baer, but that no other disciplinary
action had been taken against them. Employee Hamilton, who was
not a member of the Union, was cautioned by Harvey Baer in this
regard on three separate occasions in 1940, but was never laid off or
discharged for an infraction of the rule.12 Superintendent Durham
testified that whether an employee who had been discovered short in
his count would be discharged for that reason depended "on his
past," and that Holyfield's past was "lower than ordinary." The
record contains no explanation, other than Holyfield's union activity,
of the claim that his past was objectionable to the respondent.
Under all the circumstances we find, as did the Trial Examiner, that
the respondent did not discharge Ho]yfield for short-counting, as
the respondent contended.
Early in September, Crowe succeeded in holding a meeting of the
Union to consider protesting, the announced wage reduction, but
because of the limited attendance it was deemed necessary to hold a
further meeting before interviewing David Baer. According to
Crowe, he informally spoke to-75 or more employees on this subject.
10 Rule 15, posted since 1938, states that "consistent short count" would because for
discharge.
"There is no evidence that the shortages of June and July were called to Holyfield's
attention.
12 David Baer named two employees who had been discharged for alleged short-counting in
1938, when shortages numbering 500 dozen were discovered . However, these individuals
were reinstated by Baer after Board investigation of charges alleging that they had been
discharged for their union activities.
JAC. FEINBERG HOSIERY MILL, INC. 1371
After work on Friday, September 6, some 2 weeks after Holyfield's
discharge, Crowe drove to Valdese, North Carolina, to spend the
week end with his family.13 On Sunday, September 8, he made ar-
rangements with a friend to return to Rock Hill on Monday, Septem-
ber 9, by automobile. It was agreed that they would leave Valdese
at 4 a. in. on Monday in order to reach Rock Hill in time for the mill
opening at 7 a. in. However; the arrangements did not materialize,
and Crowe was unable to make connections which would get him to
the mill for the opening. Crowe was unable to report that he would
not get to work at the proper time, since the telegraph office was ' not
yet open when he left Valdese.. When he arrived at an intermediate
point, Charlotte, North Carolina, Crowe made no effort to communi-
cate with the respondent, because he knew that it was customary,
when a knitter did not report for work at the beginning of the shift,
for the respondent either to replace him with someone else or to
dismiss the other employees whose work depended upon his produc-
tion. By the time Crowe reached Charlotte, there, was no longer
any useful purpose to be served by communicating with the
respondent.
Some time prior to leaving the mill at about 4 p. in. on Monday
afternoon, according to his own testimony, Harvey Baer decided to
discharge Crowe because of his absence.14 Durham corroborated
Baer with respect to the time when it was decided to discharge Crowe.
Moreover, Crowe's final pay check and his separation notice were
made out on September 9, and Baer testified that these 2 items would
not have been made out then unless it had already been decided to
discharge Crowe. However, Baer claimed that his decision might
have been rescinded if Crowe were thereafter to give him some
"extenuating circumstances" for his absence. The Trial Examiner
did not credit this claim, nor do we. We find, as did the Trial Ex-
aminer, that the unconditional decision to discharge Crowe was made
before Crowe had an opportunity to explain the reason for his
absence.
According to Crowe, he arrived at Rock Hill about 4:30 o'clock
that afternoon, having driven there from Charlotte with Bradshaw.
On reaching Rock Hill he and Bradshaw drove past the mill. Notic-
ing the absence of David and Harvey Baer's automobiles, they con-
tinued on to the Baer home some 7 or 8 miles outside the city limits
of Rock Hill. When they arrived, Harvey Baer approached Brad-
18 Subsequent to Crowe's discharge in 1937, he had moved his family to Valdese, a distance
of 90 to 95 miles from Rock Hill. After his reinstatement, Crowe generally would return
there to visit his family on weekends
14 Rule 1 of the respondent's rules and regulations provided that an employee who stayed
away from work without giving proper notice would be automatically discharged, and- that
no excuses would be accepted "in any case other than,serious illness or matters over which
you have no control."
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shaw's car and told Crowe, who had just alighted and had not yet
had a chance to explain his absence, that he was discharged for the
absence. Crowe then explained why he had been unable to give
notice, and pleaded with Baer to reconsider the discharge. Baer
at first refused to do so, but, when Crowe begged for "another chance,"
finally said, "All right."
Harvey Baer testified and Crowe denied that it was about 8 or 8: 30
p. in. when Crowe arrived at Baer's home, that Crowe then told Baer
that due to car trouble he had not been able to return to town until
about 9 a. in. that morning and gave "some" reason for not having
reported for the entire day thereafter, and that Baer then told Crowe
that Crowe was discharged because of his absence. However, Baer
claimed that he "could not remember" what reason Crowe advanced
for not having reported earlier that day. At another point in his
testimony Baer claimed that he did not decide to discharge Crowe
until after Crowe had left his house that evening, despite his admis-
sion elsewhere, corroborated by Durham and the date on the separa-
tion notice, that he had reached the decision before leaving the mill
that afternoon. Moreover, the record indicates that even if Crowe
had reported at 9 a. in. the respondent would already have made
other arrangements with respect to his regular job, because of his
absence at the'start of the shift. In view of all the evidence we find,
as did the Trial Examiner, that the foregoing testimony of Baer is
not to be credited.
Crowe reported for work at 7 o'clock on Tuesday morning, Sep-
tember 10. Before he could start up his machine, Cephus Misskelly,
the night foreman, told him to report to Harvey Baer. When
Harvey Baer arrived a few minutes later he told Crowe that he had
decided not to reconsider Crowe's discharge. He then gave Crowe
his check and a separation notice, both of which had been made
out the preceding day, as stated above.
Crowe's absence on September 9 was the first one of which he had
not notified the respondent in advance. In addition, the respondent
had never before decided to discharge an employee for being absent
without first giving the employee an opportunity to explain his
absence. According to other mill employees called as witnesses by
the Board, they had on various occasions absented themselves from
the mill without notifying the respondent, yet on reporting for work
the next day the respondent had listened to their explanations, had
accepted excuses such as oversleeping or automobile breakdowns, and
had not disciplined them in any way. At the hearing Baer vol-
unteered the significant information that he "had no intention of
getting rid of Crowe and Holyfield so long as they. conformed to
the rules of the plant." [Italics added.] When asked if the other
JAC. FEINBERG ITOSQERY MILL, INC. 1373
employees who had unreported absences and were not discharged
"were entitled to more consideration than Mr. Crowe," Baer replied
without further explanation, "Yes sir." Under all the circumstances
we find, as did the Trial Examiner, that the respondent did not
discharge Crowe for his absence on September 9.
C. Concluding findings
The issue in this case is whether or not the respondent, following
the stipulation and proposed consent decree entered into on May 3,
1940, in settlement of Case No. C-774, nevertheless discriminated with
respect to the hire -and tenure and the terms and conditions of em-
ployment of Crowe and Holyfield to discourage membership in the
Union. The complaint alleged that the respondent, after having
reinstated Crowe and Holyfield in May 1940, not only discrimina-
torily discharged them, but also continued to discourage membership
in the Union. At the beginning of the hearing counsel for the
respondent conceded that their reemployment was in issue. There-
after the circumstances of their reinstatement and the conditions of
their reemployment were fully litigated. At the close of the hear-
ing the complaint was amended to conform to the proof, without
objection by the respondent. It is thus apparent that the entire
period of reemployment of Crowe and Holyfield is within the scope
of this proceeding.15
When Crowe and Holyfield reported for work on May 21, 1940,
their-1 eception set the tone for the treatment which they were there-
after to be accorded by the respondent during the entire period of
their reemployment. Crowe's action in lighting a cigarette while in
Harvey Baer's office while Baer himself was smoking was not in
violation of any rule nor did it depart from common practice.
On the other hand, Baer's order to Crowe to put his cigarette out
and his explanation at the hearing that Crowe's smoking on that
particular occasion was "offensive" to him can only indicate a deter-
mination on Baer's part to make the reemployment of these two
union leaders as intolerable as possible within what Baer considered
permissible limits.
The respondent's determination' to discriminate against Crowe
and Holyfield from the outset is clearly shown by the unprecedented
manner in which they were put to work on unfamiliar machines
without assistance; by Superintendent Durham's uncontradicted
15 See National Licorice Co v N L R B, 309 U S 350; Matter of Golden Turkey Mining
Company and International Union of Mine, Mill, ct Smelter Workers, Local No. 410, 34 N. L
It. B, No. 98 (with respect to Groves ) ; Matter of Brown-McLaren Manufacturing Company
and Hamburg Manufacturing Company and Brown-McLaren Branch of Local 174 , International
Union United Autpmobile Workers of America, a C. I 0 affiliate , 34 N. L. It. B., No. 113,
footnote 10. 1
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statements revealing his intense hostility to them because of their
union activities; and particularly by Durham's remarks that they
were to blame for depriving two new employees of their jobs in
order to enable the respondent to atone for its illegal discharge
of Crowe and Holyfield in 1937 by` reinstating them,", and by Dur
ham's further statement that their union activity had put the re-
spondent to a "great deal of trouble."
Shortly after the reinstatement of Crowe and Holyfield, the re-
spondent commenced subjecting their work to the minutest inspection,
unlike that of the other employees. However, the respondent did
not produce any data showing the record of Crowe or Holyfield as
compared with that of the other knitters, to support its claim that
this rigid inspection was necessary. In addition, the respondent
withdrew from Holyfield the privilege accorded' all other knitters of
exchanging "menders" for good stockings in less than dozen lots.
In the face of Durham's admission that the alleged deficiencies of
Crowe and Holyfield were no worse than those of the other employees,
we find that the foregoing discrimination was caused by their union
activities.
Any doubt respecting the purpose of the respondent's treatment
of Crowe and Holyfield is dissipated by the events which took
place on August 1, 1940, when Crowe and Holyfield. were separately
handed letters foreshadowing their discharge. It is true that, as
to Holyfield, the impending discharge was rested on his allegedly
above-normal amount of bad work; and as to Crowe, on his allegedly
below-normal productivity. However, the unprecedented and un-
substantiated nature of the warnings, their simultaneous use in
A he case of the two outstanding leaders of the Union, the respondent's
insistence that the employees acknowledge their receipt by signing
the letters, Durham's significant presence as a witness, and the fact
that the asserted grounds for the warnings were entirely abandoned
when the respondent attempted to explain the subsequent discharge
of the 2 employees, belie the respondent's assertion that the warning
letters were merely a non-discriminatory method of calling to the
attention of Crowe and Holyfield their allegedly extraordinary-defi-
ciencies. Rather, we are of the opinion,' as was the Trial Examiner,
that the respondent's action was designed to single out Crowe and
Holyfield and give them effective warning that their work, unlike
that of the other employees, was being subjected to the closest scru-
tiny and would be made the occasion for discharging them unless
they discontinued their union activity. That this interpretation of
the letters is the correct one is further shown by the respondent's
16 There is no' evidence that any employees were dismissed as a result of the reinstatement
of Crowe and Holyfield.
JAC. FEINBERG HOSIERY MILL, INC. 1375
subsequent return to Holyfield of a large number of stockings,he
had knitted, on the ground that they were, defective, despite, the
fact that more than l of the returns were perfect and were sub-
sequently accepted as such by the respondent.
The respondent contends that the testimony of David Baer, Harvey
Baer, and Durham shows that they had no knowledge of any union
activities since the date of the reemployment of Crowe and Holyfield.
Upon the entire' record, we find, as did the Trial Examiner, that
this contention is without merit. In any, event, it,is plain that the
respondent still considered Crowe and Holyfield to be union leaders;
and that, although their earlier reinstatement was designed to
remedy in part the respondent's illegal conduct in 1937, nevertheless
the respondent was intent upon ridding itself of them again because
of its hostility to union activity, as soon as a convenient pretext
appeared.
We have found that Crowe and Holyfield were thereafter dis-
charged upon pretexts and for asserted reasons which were
not the respondent's real reasons. Under such circumstances it is
significant to recall that Crowe and Holyfield had been discrimina-
torily discharged once before, in 1937; that upon their reinstatement
in 1940 the respondent embarged upon an unremitting campaign of
discrimination which clearly foreshadowed that they would be again
discharged as soon as a pretext appeared; and that the same reasons
existed for the discharge of other employees, who were not active
in behalf of the Union, as the respondent asserted in attempting to
explain the discharge of Crowe and Holyfield in 1940, but that none
of these other employees were discharged or otherwise disciplined.
We find that the respondent discharged Crowe and Holyfield because
of their union activities.
Upon the entire record in the case we find, as did the Trial
Examiner, that the respondent discriminated against' Crowe and
Holyfield at all times since May 21, 1940, in the terms and conditions
of employment; and that it discharged Holyfield on August 23, 1940.
and Crowe on September 9, 1940, all to discourage membership in
the Union. We further find, as did the Trial Examiner, that the
respondent thereby and by Durham's remarks to Crowe on May 21,
1940, interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the respond-
ent described in Section I above, have a close, intimate, and substan-
tial relation to trade, traffic, and commerce among the several States,
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and to take
certain affirmative action which we find will effectuate the policies
of the Act.
Having found that the respondent discriminated against Crowe
and Holyfield because of their union activities, thereby discouraging
membership in the Union, we shall order the respondent to offer to
each of these two employees immediate and full reinstatement to
the position he held prior to the respondent's discrimination against
him, or to a substantially equivalent position, without prejudice to
his seniority and other rights and privileges, and to make him whole
for any loss of pay he suffered by reason of such discrimination by
payment to him of a sum of money equal to the amount which he
normally would have received as wages from the date of,the discrimi-
nation against him to the date of the respondent's offer of reinstate-
ment, less his net earnings during said period.17
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1.' American Federation of Hosiery Workers, affiliated with the
Congress of Industrial Organizations, is a labor organization, within
the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment and the terms and conditions of employment of Earle Crowe
and Richard Holyfield, thereby discouraging membership in American
Federation of Hosiery Workers, 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. -
17 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 unlawful discharge
and the consequent necessity of his seeking employment elsewhere . See Matter of Crosset
Lumber Company and United Brotherhood of Carpenters and Joiners of America , Lumber and
Sawmill Workers Union, Local t590, 8 N. L. R. B. 440 Monies received for work performed
upon Federal, State, county , municipal, or other work-relief projects shall be considered as
earnings . See Republio Steel Corporation v. N. L. R. B., 311 U. S. 7.
JAC. FEINBERG HOSIERY MILL, INC. 1377
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning.of Section 2 (6) and '(7)
of the Act.
ORDER'
Upon the basis of the above findings of fact and conclusions of
law and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Jac. Feinberg Hosiery Mill, Inc., Rock Hill, South
Carolina, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in American Federation of Hosiery
Workers or any other labor organization of its employees by dis-
criminating in regard to hire or tenure of employment or any other
term or condition of employment;
(b) In any other manner interfering with, restraining, or co-
ercing its employees in the exercise of the rights to self-organization,
to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purposes of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
(a) Offer to Earle Crowe and Richard Holyfield immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority and other rights and
privileges ;
(b) Make whole Earle Crowe and Richard Holyfield for any loss
of pay each of them suffered by reason of the discrimination against
him, by payment to him of a sum of money equal to the amount
which he normally would have received as wages from the date of
the respondent's discrimination against him to the date of the re-
spondent's offer of reinstatement, less his net earnings during said
period ;
(c) Post immediately, in conspicuous places throughout its mill at
Rock Hill, South Carolina, and maintain for a period of at least
sixty (60) consecutive days from the date of posting, notices to its
employees stating : (1) that the respondent will not engage - in the
conduct from which it is ordered to cease and desist in paragraphs
1 (a) and (b) ; (2) that it will take the affirmative action set forth
in paragraphs 2 (a) and (b) ; and (3) that its employees are free
to become or remain members of American Federation of Hosiery
438861-42-vol. 38-88
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Workers, and that the respondent will not discriminate against any
employee because of membership or activity in that organization ;
(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.