Oneita Knitting Mills, Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1965

153 N.L.R.B. 51 (N.L.R.B. 1965)

ONEITA KNITTING MILLS, INC. 51
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Boston
Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts, Tele-
phone No. 523-8100, if they have any questions concerning this notice or compliance
with its provisions.
Oneita Knitting Mills, Inc. and International Ladies' Garment
Workers' Union, AFL-CIO. Cases Nos. 11-CA-P350, 11-CA-
2390, and 11-CA-2467. June 17,1965
DECISION AND ORDER
On March 22, 1965, Trial Examiner Martin S. Bennett issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's De-
cision. Thereafter, the Respondent filed exceptions to the Trial Ex-
aminer's Decision and a supporting brief and the Charging Party
filed a brief in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejuricial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the entire record in
these cases, and adopts the findings, conclusions, and recommendations
of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the, Recommended Order of the Trial Examiner, as modified
herein, and orders that Respondent, Oneita Knitting Mills, Inc.,
Andrews, South Carolina, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's Recommended
Order, as so modified:
1. Add the following as paragraph 2(b) to the Trial Examiner's
Recommenued Order, the present paragraph 2(b) and those sub-
sequent thereto being consecutively relettered :
° (b) Notify the above-named employees, if presently serving in the
Armed Forces of the United States, of their right to full reinstatement
153 NLRB No. 4.
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended,
after discharge from the Armed Forces."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This matter was heard before Martin S. Bennett at Charleston and Georgetown,
South Carolina, on November 4, 5, 6, 7, and 9, 1964. The consolidated complaints 1
allege violations of Section 8(a) (1), (3 ) and (5 ) of the Act . The case has been ably
briefed by all counsel.
Upon the entire record in the case , and from my observation of the witnesses, I
make the following:
FINDINGS OF FACTS
1. JURISDICTIONAL FINDINGS
Oneita Knitting Mills, Inc., a New York corporation engaged in the manufacture
of men's underwear at Andrews, South Carolina, annually ships goods valued in excess
of $50,000 to points outside the State of South Carolina. Goods in like amount are
shipped to it from points outside that State. I find that the operations of Respondent
affect commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Ladies' Garment Workers' Union, AFL-CIO, and its Local 371,
herein called the Union, are labor organizations within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background, the issues
The instant hearings in November of 1964 reflect the second installment of the
labor dispute between the Union and Respondent . Local 371 has been recognized as
the representative of Respondent 's employees for many years in what is in essence a
plantwide unit with the customary exclusions. The most recent of a series of con-
tracts was extended only to July 10, 1963, and on that date the employees went
on strike.
As for the first installment , hearings were held by another Trial Examiner in Case
No. 11-CA-2170 and , on December 29, 1964, the Board issued its Decision, agreeing
with the Trial Examiner that Respondent had engaged in unfair labor practices
within the meaning of Section 8(a)(1) and ( 5) of the Act . It found various
forms of refusal to bargain in good faith during the prestrike negotiations and found
further that the strike which commenced on July 10, 1963, was a strike both caused
and prolonged by said unfair labor practices.
On January 28, 1964, Assistant Director Nick Bonanno of the Union wrote to
President Robert Devereux of Respondent and, in behalf of the strikers duly named,
stated "I hereby request unconditionally their return to their own respective jobs with
all the respective seniority rights and privileges." On February 4 the great majority
of the strikers returned to the plant and were reinstated to their former positions with
the exception of 39 employees who fall into three categories ? Respondent 's refusal
to reinstate these employees and to bargain with the Union with respect to two of
these categories is attacked in the consolidated complaints litigated before me.
These categories are (1 ) 5 set-sleeve and sew-band operators who were reinstated
but were deprived thereafter of the sew -band portion of their work ; ( 2) 16 female
knitters who were offered other work on February 4 and who declined reinstatement
1 Issued July 31 and amended October 2, 1964, in Case No 11-CA-2350, and issued on the
latter date in the other cases, based upon charges variously filed on February 7, March 24,
April 13, 16, and 29, July 2, and September 28, 1964.
2 Respondent points out that the Union continued to picket, with nonemployees, its
New York offices until May 4, 1964, urging that this demonstrates that the strike had
not ended. The fact Is that an unconditional offer to return to work was made, that most
of the strikers were returned to work by Respondent, and that the very issues litigated here
exist solely because Respondent refused to reinstate certain strikers' to their former posi-
tions. I see no basis for impugning the bona fides of the offer to return and so find.
ONEITA KNITTING MILLS, INC. 53
because they wished to return to their former positions; and (3) 18 employees who
were denied reinstatement because of strike activities which were allegedly unpro-
tected under the Act.
It is undisputed that all of these cases stem from the same strike which was consid-
ered by the Board in Case No. 11-CA-2170, and I find, as the Board did, that all
strikers whose cases are considered herein are unfair labor practice strikers. Respond-
ent does not dispute the Union's majority status or that it is the representative of a
majority of the employees at the Andrews factory.3
Respondent admits, and I find, that all production and maintenance employees at
its plant at Andrews, South Carolina, including carpenters, truckdrivers, janitors, knit-
ting machine fixer-learners, and sewing machine fixers, but excluding office clerical
employees, payroll clerks, foreladies and assistant foreladies, knitting machine fixers,
and all other supervisors constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act. I further find that the
Union is, and at all times material herein has been, the representative of the employ-
ees in said unit for the purposes of collective bargaining within the meaning of Sec-
tion 9 (a) of the Act.
B. The sew-band operators
Respondent has some 10 to 15 departments, according to Plant Manager Frank
Urtz One of these is the set-sleeve department in which the sleeves of a man's
T-shirt are sewn to the armholes. Another operation performed in this department
prior to the strike, during the strike, and also for a short time thereafter was, on
occasion, to sew in "sew bands" 11/2 inches wide in lieu of the sleeves. The loss of
the latter work by five returned strikers, Odean Smith, Dorothy Glisson, Lizzie Ward,
Christine Floyd, and Elma Powell, is the present issue
The sew-band work would appear about every 3 weeks in a batch of 1,000 or 1,100
dozen and was processed in approximately 3 days. This work was uniformly assigned
only to the five operators with the most seniority and these were the five complainants
herein. The remainder of the department worked solely on the set-sleeve operation
which carried a rate of 15 cents per dozen. When performing the sew-band opera-
tion the operator was paid at the rate of 20 69 cents per dozen. The machines of
these five operators were equipped with a special sew-band attachment expressly de-
signed to handle the sew-band work.
When these five unfair labor practice strikers returned to work on February 4 they
were assigned to machines which did not have the sew-band attachment. The sew-
band work was then being performed by five girls, Minnie Bell Bouchette, Eastland
Glisson, Mary Marlowe, Harriet Powell, and Doris Wheeler. All of the latter were
either nonstrikers or employees who had abandoned the strike soon after its com-
mencement and had worked throughout the strike.
The shop committee unsuccessfully grieved to Plant Manager Urtz at the time.
Then, in a letter to Respondent on February 27, Assistant Regional Director Nick
Bonanno of the Union protested the loss of the sew-band work by the five com-
plainants. On March 16, Urtz wrote Bonanno and rejected his claim for the work.
A charge in Case No. 11-CA-2567 was filed on March 24, 1964, and promptly served,
expressly attacking this action.
On a date placed by Odean Smith as "around Easter," 4 Respondent set up a new
"miscellaneous department" to handle various operations including the sew-band
work. Five machines with sew-band attachments were physically moved to this new
department. One of the second group of five, Bouchette, was transferred to this de-
partment and was joined by four different girls The other four in this second group
went back to setting sleeves exclusively as had the five complainants herein. Of the
third group of five, two were strikers and three were not. Respondent continues to
deny the sew-band work to the five complainants herein.
Respondent contends that this was not an act of economic retaliation, alleging that
the gross earnings of the complainants did not vary when they had been assigned to
sew-band work. It claims that their production was less on the higher paying opera-
tion with gross earnings similar to those on set-sleeve work. In support thereof,
' In Case No. 11-CB-148, Respondent filed a charge against the International which was
settled on January 17, 1964, with this Company not a party to the settlement Therein,
it was agreed that the respondent in that case would refrain from physical violence, mass
picketing, assaults, threats, and related conduct. This was followed by an exculpatory
clause No contention has been made that any of those named in the instant complaints
were involved in the alleged incidents covered by the settlement agreement.
4 I note that Easter fell on March 29, 1964.
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent has presented various earning records of the operators in question, both
before and after the strike, but these are deficient because they do not show which
work the operator was doing during a given week or day.
There is the more significant fact that the operators involved uniformly claim that
they would earn more on the sew-band operation than on the set-sleeve operation.
The fact that they earnestly desired this work and strove at length to get it, supports
their position. Moreover, Respondent perforce recognized that there was some
advantage to performing this sew-band work, because it uniformly assigned this work
to the girls with the most seniority and the five complainants were in that precise
category. Indeed, when a vacancy arose shortly before the strike, Supervisors
Campbell and Devereux expressly assigned Christine Floyd to sew-band work in rec-
ognition of her seniority.
This recognition of seniority is significant Seniority is a commonly recognized
basis for granting promotions and privileges in a plant. If Respondent's position
were to be accepted, this would mean that not only the employees but Respondent
itself was making something out of nothing and deluding all concerned. This view
is hardly tenable in a plant where seniority had always been recognized and still is on
a departmental basis
When Plant Manager Urtz set up the new miscellaneous department, he called in
the second group of five and told them that he was making other arrangements. Be
admitted that this decision was made after he received Bonanno's complaint about the
five strikers and conceded that when he received the letter from Bonanno "I would
assume I could have an unfair labor practice."
Urtz claimed that the operators did not earn more on the sew-band operation.
He was then asked why the work was assigned to the operators with the highest
seniority . He replied only that this practice antedated his advent as plant manager
and "I could not tell you why." He testified that he never asked why the senior
operators were given this work and added that he presumed the returning strikers
merely "thought" they could earn more money at this operation . I do not accept
his explanation because implicit therein is the view that he did not know what was
going on in the plant, a position in marked contrast with his other testimony and
contrary to the realities of the situation.
To sum up, I find that there was an economic advantage to employees in per-
forming the sew-band operation and that Respondent refused on February 4, 1964,
to return its five sew -band operators to the jobs they held before the strike Re-
spondent recognized that it was vulnerable because it had ignored the departmental
seniority of these strikers , and sought to cover this by setting up a new department
and assigning two strikers to this work , although not entitled to it by seniority. I
am convinced that this loss of work was in essence a petty retaliation against the
five strikers because of their strike activity , and that this was the reason why they
were not returned to their former positions . I find that Respondent has thereby
engaged in unfair labor practices within the meaning of Section 8 ( a)(3) and
8 (a) (1) of the Act.
I further find that by this unilateral action taken without any consultation with the
Union, Respondent has refused to bargain in good faith . It is now established
that an employer must bargain with a recognized bargaining agent concerning mat-
ters which affect the wages, hours , and working conditions of those in the unit or
which concern the elimination of unit jobs. Fibreboard Paper Products Corp. V.
N.L.R.B., 379 U.S. 203, and Town & Country Mfg. Co., Inc., 136 NLRB 1022, enfd.
316 F . 2d 846 (C.A. 5).
Organizational changes as those involved herein are clearly matters for mandatory
bargaining and prior discussion with the bargaining representative . Cf. Westing-
house Electric Corp., 150 NLRB 1574, where the Board noted that the contract-
ing out disapproved in Fibreboard "involved a departure from previously estab-
lished operating practices , effected a change in conditions of employment , or resulted
in a significant impairment of job tenure , employment security, or reasonably
anticipated work opportunities for those in the bargaining unit." It is further noted
that Respondent 's basic operation is not altered by this concept.
Respondent contends that the Union has waived its right to bargain on this and
other issues and points to article 10 of the contract which states "The Employer
shall have the exclusive right to manage and direct its entire working force , includ-
ing the right to hire, suspend , discharge , lay off, demote , promote, and transfer its
employees ." I find no merit to this contention for several reasons:
( 1) The contract expired on July 10, 1964.
(2) Article 10 states that "However, the Employer shall not use such right for the
purpose of discriminating against any employee."
ONEITA KNITTING MILLS, INC. 55
(3) Moreover, article 10 cannot be read independently of the rest of the contract
and article 8 expressly recognizes departmental seniority.
(4) At the very least, there is not present the express, clear, and unmistakable
waiver of a statutory right as required by decisions of the Board. See C & C Ply-
wood Corporation, 148 NLRB 414, and Puerto Rico Telephone Co., 149 NLRB 950.
I find, therefore, that by unilaterally changing the working conditions of these
five, returned unfair labor practice strikers, by ignoring their recognized departmental
seniority, by depriving them of it, and by refusing to bargain with their bargaining
representative on the matter, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) and, derivatively, Section 8(a)(1) of the
Act. See The Great Atlantic & Pacific Tea Co., Inc., 150 NLRB 1222, and Elltott-
Williams Co., Inc., 149 NLRB 1242.
C. The knitters
These employees, 16 in number, reported for work on February 4.5 Each was
given a notice stating:
We offer you work in other jobs than knitters at your average pay. We fur-
ther offer to give you the normal training period required for such jobs.
We would like you to report here at 9:00 am. next Monday for individual
conferences.
We have men operating our knitting department at present time. We feel
this is a man's job.
The Union immediately protested this move by Respondent, claiming that Re-
spondent had constructively discharged these people because, as unfair labor prac-
tice strikers, they were entitled to reinstatement to their former positions.
On February 10, the entire group appeared at the plant and their spokesman, Vir-
ginia Norris, told Plant Manager Urtz that they wanted to return to their former
jobs because they were trained for that work. Urtz refused, but did offer them
some other unspecified work in the plant. This was declined by the girls. Their
request for reinstatement is outstanding. The positions filled by the girls are still in
existence but are now occupied by men who were hired during the course of
the strike.6
What is immediately apparent here is that Urtz did not make the decision to place
the knitters elsewhere in the plant until after he received the letter dated January 28
from the Union wherein reinstatement of these employees and the other strikers
was requested. Even then he had no specific location in mind for them. While I
treat below with Respondent's contention that it had decided in 1962 to replace
women knitters with male knitters, the fact is that the decision was not made until
after reinstatement had been sought by the strikers. It follows that this is an at-
titude more consistent with discipline of the strikers.
The fact is that this offer by Respondent of "other jobs" could not and did not
constitute substantially equivalent employment, because all seniority would be lost
by these employees and their status would be that of newly hired employees. This
follows because Respondent operates on a departmental seniority basis. Upon
placement in another department, the returning strikers would have been junior not
only to nonstrikers, but also to persons hired during the strike, and in fact everyone
else in the department. Stated simply, Respondent cannot penalize unfair labor prac-
tice strikers solely because they have engaged in a strike by depriving them of their
seniority and the present issue amounts to precisely that.
6 Actually only 15 reported for work on that day. Their names are:
Marjorie P Ward Mady Johnson Getty Howard
Shirley Ackerman Lorene C. Eaddy Cecile Cusak
Martha V. Bruce Walker Creel Dorothy Mau
Virginia Norris Frances Player Dorothy Turner
Susan Turner Ruby White Clara McClary
The 16th, Juanita Casselman, did not return until March 10 because of illness. The
parties agree that her case is on a par with those of the other 15 except, of course, as to
any offset to Respondent for potential backpay for the period from February 4 through
March 10
6 According to Urtz, he had 16 to 18 women knitters before the strike and now has
15 to 16 men. I am not certain whether this indicates that Respondent operates with less
men than women, although in one respect, treated below, Respondent contends that male
knitters sweep the floors, thus obviating the need of assigning a cleanup man on a part-
time basis to this task as was allegedly done prior to the strike
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's claim that its decision to hire male knitters was of long standing
is less than convincing. Urtz became plant manager early in 1962. At that time, he
met with the shop committee and expressed his desire to replace the women with men
because of "compensation cases and back injuries." Objection was raised and he
agreed that this would be done through attrition by replacing departing women with
men.
In July of 1962 two men were hired. One of these left Respondent's employ late
in 1962 and the other was transferred at the same time to the position of machine
fixer. No additional men were hired in 1963 until an undisclosed date after the
commencement of the strike in July. Urtz contends that there have been no com-
pensation claims in the knitting room since the start of the strike in July of 1963
and points to two within the 6-month period prior to the strike. Presumably, the
inference is urged that the work is heavy or onerous although details are not supplied.
Yet, one of the striking knitters, Susan Turner, was 5 feet tall, weighed 100 pounds,
and had been there 6 years.
It is significant that her sister-in-law, Dorothy Turner, who had no experience in
the work, applied for work as a knitter in March of 1963, was interviewed and hired
by Supervisor Webb Heine, and was placed on a 13-week training program. Dorothy
Turner is 5 feet 3 inches tall and weighs 90 to 95 pounds. Urtz was aware of this
personnel action, testifying that he agreed to it because Susan Turner was a superior
knitter and had indicated willingness to help in the training of her sister-in-law.
Be that as it may, on Urtz' version, he appears to have hired a likely candidate
for back injury and a compensation claim. The direct answer is that he hired this
slight female several months before the strike and put her on a 13-week training
program, hardly a move consistent with a longstanding intent to install male knitters
and eliminate back injuries and compensation claims.
There is evidence from Urtz that by using male knitters he has been able to
eliminate the part-time cleaning man in the department, and, further, that the reject
rate with men has dropped to 3 percent from the previous 5 percent prior to the
strike. According to knitter Walker Creel, the sweeping performed for the women
consisted solely of sweeping the floor at the end of each shift by the yarn boy, an
operation taking but a few minutes, and substantially less than that testified to by
Urtz. On the other hand, Respondent's claim as to the drop in rejects with the men
stands unchallenged on this record.?
Furthermore, the same issue is presented here as in the case of the sew-band
operators and perforce the same result is dictated by the Fibreboard and Town &
Country decisions, supra. I think it beyond question that the type of work to be
performed by returning unfair labor practice strikers and their deprivation of de-
partmental seniority are terms and conditions of employment. Disregard of their
seniority, as indicated, amounted to the grant of supersemority to nonstrikers and
striker replacements. See N.L.R.B. v. Eiie Resistor Corp, 373 U.S. 221. As set
forth above, the elimination of unit jobs is a mandatory subject of collective bar-
gaining. Respondent flatly refused to treat with the knitters' offer to return to their
former posts, but was willing to discuss only the different work they might there-
after do. The decision to eliminate them as knitters was a fait accompli. And,
significantly, Respondent completely bypassed the recognized collective-bargaining
representative and sought to deal individually with the employees themselves.
Nor does this impose an insuperable burden upon Respondent. The girls could
and should have been reinstated to their former positions, which are in existence,
and Respondent then could have discharged its obligations under the Act by bar-
gaining with the Union concerning the manning of the knitting department, some-
thing it had not done since 1962. See Edmund A. Gray Co., Inc., 142 NLRB 590.
Indeed, Respondent's admitted discussion of this matter early in 1962 amounted to
a recognition of its bargaining obligations. The thrust of the instant decision is that
Respondent readily and easily could have done the same in 1964.
Having previously found that the Union has not waived its right to bargain
in this area, I find, accordingly, that by unilaterally depriving its striking knitters of
departmental seniority and by failing and refusing to bargain with the Union on the
matter, Respondent has not met its obligations under the Act and, on and after
February 4, 1964, has engaged in unfair labor practices within the meaning of Sec-
tion 8(a)(5) of the Act. I further find that the foregoing deprivation of seniority
constitutes discrimination against said unfair labor practice strikers solely because
7 While the evidence does tend to support Respondent ' s position with respect to the
drop in rejects and the elimination of a sweeper , the fact still remains that there has been
a change in seniority solely because of engaging in a concerted activity
ONEITA KNITTING MILLS, INC. 57
they had engaged in concerted and union activities and is therefore violative of
Section 8(a)(3) and 8(a)(1) of the Act. See The Great Atlantic & Pacific Tea
Co., Inc., supra, and Elliott-Williams Co., Inc., supra.8
D. Alleged misconduct by strikers
The consolidated complaint alleges that Respondent refused, upon unconditional
application , to reinstate 18 strikers on and after February 4, 1964 Their names
are Naomi McGee, Patsy King, Vermie Bodiford , Joyce High , Emma Joan Long,
Willa Mae McGee , Evelyn Collins , Janice ( Marshall ) Martin, Yvonne West, Edna
Lee Long, Harris Casselman , Martha Watford , Julia Ackerman , Jack Newton, Rich-
ard Cook, Nettie ( Miriam ) Owens, Frances Allen, and Hazel Brantley. Re-
spondent contends that these 18 strikers engaged in misconduct during the strike
and, because of this , it refused to reinstate them to their former positions.
No evidence was presented as to 1 of the 18, Harris Casselman . Respondent
states in its brief that Casselman "has been reinstated" and that he was unable to
testify "due to overseas military service ." The record is silent as to his purported
misconduct . I assume that this means that Respondent does not withhold reinstate-
ment from Casselman but, in order to avoid further proceedings , I shall lump him
in with other strikers hereinafter ordered reinstated
The strike commenced on the afternoon of July 10, 1963 . The Union planned
to rotate its pickets at five plant gates . On July 10 and 11, the plan broke down
and, for example , on the morning of July 11, according to Lieutenant Cecil Dil-
worth of the South Carolina Highway Department , there were about 150 strikers in
the vicinity of the mill. A temporary restraining order was issued by a local court
on July 11 restricting the number of pickets at the plant to 10. It appears that aside
from the first 2 days, things were relatively peaceful at the plant for a strike which
lasted some 7 months.
The General Counsel and the Union argue that in evaluating the conduct herein,
note must be taken of the fact that the instant strike was caused and prolonged by
Respondent 's unfair labor practices . They point to court precedent that engagement
in conduct unprotected under Section 7 of the Act does not, ipso facto, preclude a
reinstatement order for an unfair labor practice striker and that the seriousness
of the employer's unfair labor practices is to be considered in balancing the issue.
N.L.R.B. v. Thayer Co ., 213 F. 2d 748 ( C.A. 1), and Kohler v. N.L.R.B., 300 F. 2d
699 (C.A.D .C.). This policy has been followed by the Board . See, e.g., Elmira
Machine & Specialty Works, Inc., 148 NLRB 1695. But see N.L.R.B . v. R. C. Can
Company, 340 F. 2d 433 (C A. 5).
While the net result of this may be that anything short of aggravated assault will
not disqualify such a striker , this policy is deemed to be binding upon me. Initially,
however, it is noted that some of the incidents involved are on the trivial side or else
there is an absence of adequate identification . These cases will be treated with first.
1. The Yoakum Newton car incident
Lieutenant Dilworth of the State police testified, and I find, that he and two
officers were assigned to duty at the plant on and after July 11. His interest was
basically to keep open the State highway which bordered the plant. At approxi-
mately 7 a.m., a car driven by Yoakum (also known as Jack) Newton approached
the gate. Officers parted the pickets and Newton started to drive in "very slowly."
It would seem that some of the pickets were slow to get out of the path of the
vehicle. According to Newton who testified for Respondent, complainant Richard
Cook opened the car door next to Newton, the window being rolled shut, and asked
him not to run over the girls. Newton attempted to pull the door shut. Cook
opened it a second time and Newton closed it. Lieutenant Dilworth, who did not
hear what Cook said, then instructed two officers to arrest Cook and this was done.
Cook's version is in substantial agreement with that of Newton. Cook made no
gestures at Newton and did not attempt to grasp him.
That Cook was correct in his appraisal of the situation is shown by the testimony
of Newton that the local sheriff, also on the scene, directed him to stop because
striker Evelyn Collins was in the path of the vehicle. I deem it immaterial to
resolve a conflict as to whether Cook was beside the vehicle or passed between two
8 On this posture, I deem it unnecessary to treat with the argument that strikers must
be returned to their prestrike jobs, if in existence, versus the contention that nondis-
criminatory economic factors may permit their reinstatement to substantially equivalent if
not identical positions. See The Chase National Bank of the City of New York, 65
NLRB 827, 829.
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
officers in order to reach and open the door. I accept Cook's testimony that he
opened the door because the window was closed and it is readily apparent that there
was much noise at the time.
Newton's wife, Vera, a passenger in the car, attributed to Cook the statement that
when Cook opened the door, he said "You've got some people inside of the car that
can't go in to work." 9 According to Cook, in asking Newton not to run over the
girls, he stated that "the life of one of those girls wouldn't be worth his job to him."
I credit the testimony of Cook which, in essence, is corroborated by that of Yoakum
Newton. And, even on the face of Mrs. Newton's testimony, I find that this state-
ment, unaccompanied by any physical action beyond that appearing herein, is in-
sufficient to disqualify Cook and render him unfit for further employment.
Respondent also attacks the conduct of several female strikers at the scene. Thus,
Mrs. Newton testified that striker Julia (Judy) Ackerman walked in front of the car
as it slowly entered. This Ackerman freely admitted, stating that she was attempt-
ing to assist a fellow picket to her feet and out of the way, at which point the police
escorted her to one side; she did not touch the car.
According to Mrs. Newton, four complainants, Evelyn Collins, Vermie Bodiford,
Joyce High, and Willa Mae McGee, struck the slowly moving car with their fists
as it passed but did not inflict any damage upon the vehicle. As indicated, State
police, as well as the local sheriff, were on the scene and in control of the situation.
Under the circumstances, I do not consider this conduct as rising to that required
under the standards and I see no merit to Respondent's position with respect to these
five strikers.
2. The Jose Mallo incident
Mallo, the quality control manager, moved to the United States from Cuba 41/2
years ago and was inside the plant fence on July 10, together with Supervisor Jackie
Powers. According to Powers, striker Jack Newton shouted in the direction of
Mallo "Look at that s.o.b. Cuban, send him over to Castro." Mallo's version was
to the same effect. According to Newton, it was picket Mary Chavis who shouted
that Mallo should "go back to Cuba with Castro." Newton denied making the state-
ment, but admitted laughing loudly when he heard Chavis make the statement
set forth above.
Mallo, manifestly a proud man, was understandably incensed by the remark.
While I believe that in his perturbation he mistook the maker of the remark and
that Newton did not make it, this is actually unimportant. The statement, even if
made by Newton, can hardly be considered of so devastating a nature as to render
unfair labor practice striker Newton unworthy of further employment. In fact, I
doubt that a similar statement, made by an employer in the context of a union
organizational campaign, would be considered violative of Section 8(a)(1) of the
Act. Furthermore, Newton uncontrovertedly testified that in a conversation around
Christmas of 1963, Plant Manager Urtz told him that he was pleased that Newton
had not bothered anyone during the strike. Accordingly, I see no basis for denying
reinstatement to Newton.
3. The "scab" poem
Paul Howard, on social security, is not an employee of Respondent, but his wife,
Sadie Howard, is. Howard regularly drove his wife to work and apparently also
brought in her lunch. Respondent adduced evidence that Nettie (Miriam) Owens
approached Howard and his wife as they entered the mill one day in August, less
than a month after the stike commenced, and attempted to hand a sheet of paper to
Mrs. Howard. She ignored the offer, but Howard accepted it together with a request
that it be delivered to his wife. After passing through several hands, it ultimately
was delivered to Mrs. Howard.
The document, which was rejected herein, contained a short poem by Jack Lon-
don entitled "A Scab" that was well known during labor disputes of an earlier day
I deem it unnecessary to set it forth herein except to note that it compares a "strike
breaker" unfavorably with Esau, Judas Iscariot, and Benedict Arnold, and also as
being unacceptable to the Devil. Be that as it may, while the poem indeed contains
strong opinions, it contains no threats and I see no basis herein for denying Owens
reinstatement.
4. The firing of weapons
The above-mentioned Nettie (Miriam) Owens is wed to one Lamar Owens who is
not an employee. Their next door neighbor was employee Carl Newton, who worked
during the strike. According to Newton, during the latter part of July, he was
o Newton' s sister and uncle also were in the car but did not testify herein
ONEITA KNITTING MILLS, INC. 59
awakened at approximately 3:30 one morning by the sound of a shotgun being dis-
charged. Approximately 15 minutes later, he observed the Owens couple drive up
to their residence. He later discovered that his garage had been hit with buckshot.
He claims that he is fully familiar with the sound of a shotgun.
About 1 week later, the Owens couple alighted from their car and he heard Nettie
(Miriam) Owens shout "Don't let the scab sleep." Lamar Owens soon thereafter
came out of his home, discharging his gun, but his wife was not with him. That
night the Owens radio was played very loudly. The houses are some 20 feet apart.
On a third occasion, around August 1, Lamar Owens allegedly discharged a shotgun
in his backyard. Newton did not place Nettie (Miriam) Owens on the scene; in-
deed, he did not see Lamar Owens but noted only the flash of the gun. It may be
noted, according to Newton, that he and Lamar Owens are good friends.
Even on the face of the foregoing, I see no basis for denying reinstatement to Nettie
(Miriam) Owens. Moreover, as she uncontrovertedly testified, she does not own a
radio, her husband owns a .25 automatic pistol and not a shotgun, and she has seen
Newton discharge his own weapon, a shotgun. She admitted that her husband
occasionally discharges his pistol after cleaning it and added that her neighbors,
unlike her husband, do some hunting in this rural area.
5. Egg throwing at Paul Howard
Paul Howard, identified above, testified that he was proceeding to the mill alone
in his car at 3:15 p.m. one day in order to get his wife. He stopped at an intersec-
tion with the main highway and a pickup truck passed by. Two women not involved
herein were in the cab and striker Martha Watford was in the rear. As the truck
passed, Watford threw eggs at his car and shouted "There goes that scabby bitch."
Watford denied ever participating in this incident and further claimed that she
never rode in the rear of a pickup truck. On the one hand, Watford gave some testi-
mony concerning being shot at with a water pistol containing acid, treated below,
which is partly dubious. On the other, it is difficult to appreciate how Howard,
manifestly a slow moving and slow reacting person, could have heard much shouted
from a truck passing his car, which was stopped at an intersection.
The Union argues that Howard testified that he did not communicate with Re-
spondent concerning this alleged incident until about a week prior to the hearing and
that this therefore could not have played a part in Respondent's refusal to reinstate
Watford. However, I believe the record is ambiguous in this respect and do not rely
on this claim. In view of Howard's demonstrated slow reflexes at the hearing, I am
disposed to credit Watford and find that she was not involved in this incident. Ac-
cordingly, Respondent's contention in this respect is rejected.
6. The McKenzie auto incident of July 11
Vivian McKenzie and her daughter, Aloma McKenzie Poston, worked throughout
the strike, driving to work in the latter's car. On July 11 they were driving home
after work on a State highway at a rate of 40 to 50 miles per hour. As they tra-
versed a curve in the road, a blue pickup truck proceeding in the opposite direction
passed them. It would seem that the truck was traveling at or about the same rate
of speed. According, to Vivian McKenzie, there were 3 or 4 persons in the cab and
12 to 15 persons standing in the rear . She recognized Martha Watford as one of
those standing in the rear . Her daughter recognized only Watford as among several
standing in the rear.
As the vehicles passed, according to Vivian McKenzie, white and red objects, later
ascertained to be eggs and tomatoes, were thrown from the rear of the truck at the
McKenzie vehicle; apparently only several of the eggs struck the car. She was unable
to state that Watford threw any of these objects but did observe Watford with her
hand raised behind her head. Aloma McKenzie Poston merely identified Watford
as one of those in the rear of the truck.
Watford denied being a passenger in a blue truck on this occasion and denied that
she threw eggs. It is understandable that identification is difficult under such cir-
cumstances, with two vehicles traveling in opposite directions at a relatively high rate
of speed. Moreover, I do not read the testimony of Respondent's witnesses as con-
stituting adequate identification of Watford on this occasion as the culprit. I there-
fore see no basis in this incident for denying reinstatement to Watford.
7. Egg throwing at Vivian McKenzie on August 14
Vivian McKenzie testified that on her way to work on or about August 14, a
cream-colored car followed her car for about 11/2 miles into town. There were
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
three persons in the car and she identified Yvonne West as the driver. As they
entered town, two eggs were thrown from the cream-colored car at her car; neither
struck the car. McKenzie did not know who threw the eggs, but recalled that West
shouted something at her.
West denied throwing any eggs at McKenzie She drives a white automobile and,
to this extent, I do not deem McKenzie's identification of the vehicle as being amiss.
However, even on McKenzie's testimony, West is not identified as an egg thrower.
I believe that under the stated precedents, rightly or wrongly, something more than
being the driver of a vehicle is required here. Accordingly, I see no basis here for
denying reinstatement to Yvonne West.
8. Following the Bouchette car
On July 11 or 12, according to nonstriker Thelma Bouchette, she left work with
a passenger, Rachel Ward. They were followed by a car containing Willa Mae
McGee, Joyce High, Evelyn Collins, Nettie (Miriam) Owens, and Janice (Marshall)
Martin 10 As they arrived at Ward's home, the other car stopped and McGee
alighted, opened the car door, told Ward to get out, and stated that she wanted to
beat her up. At this point, a police car arrived on the scene The group in the
second car was instructed to disperse and they immediately did so.
As I read Bouchette's testimony, there was no physical contact between McGee
and Ward. There is also substantial evidence that a meaningful predicate anteceded
this incident. Evelyn Collins and Willa Mae McGee testified, in substantial agree-
ment, that as they began picket line duty that afternoon a car with Bouchette, Ward,
and a third person left the plant. The car passed by the pickets and someone in
the car called them "dirty whores." The car circled the block, repassed the pickets,
and again someone in the car addressed them similarly. Incensed by this greeting,
the group of pickets abandoned the picket line, entered a nearby auto, and followed
the car. As both cars arrived at Ward's home," McGee opened the car door and
protested being addressed in such uncomplimentary terms. At this point, the police
car appeared on the scene and prevented any further action.
Bouchette partially corroborated McGee and Collins, admitting that something
was said as her vehicle went by the pickets, although she further testified that she
did not remember anything being shouted by the occupants of her vehicle. On the
other hand, she did admit that her car had circled the block several times Under
the circumstances, I credit Collins and McGee. I find that the derogatory language
was uttered by occupants of the Bouchette car and led to their being followed. And,
in any event, in the absence of physical contact, I do not deem McGee's conduct on
this occasion to be such as to warrant denying her reinstatement.
9. The 9-mile curve incident
On or about August 14, Iva Lee Lambert, accompanied by a group of women, was
driving home from work and had proceeded approximately 6 miles to the vicinity
of a curve in the road known as the 9-mile curve. As she traversed the curve at 40
to 45 miles per hour, she observed some strikers, apparently all women, beside the
road and they proceeded to throw eggs at her car. She identified Janice Marshall
Martin, Vermie Bodiford, Joan Long, and Naomi Howard McGee as the culprits.
Two others were sitting in a parked truck and she does not claim that they threw eggs.
Lambert stopped her car and commenced writing down the names of those involved.
At this point, the offending group got into the truck, started up, passed Lambert's
car and soon turned into a nearby road known as Chavis Road along which Mary
Chavis resides. Lambert followed them, pulled in behind them and parked in such
a position as to substantially, if not completely, block the road. She continued to
write down the names of those in the group during which Vermie Bodiford came
over and invited the group to alight from Lambert's car if they wished to engage
in fisticuffs. Mrs. Lambert declined the offer, stating that she merely wished to record
names. There was no physical contact of any nature and Lambert drove away with-
out further incident. She wrote a total of 10 names, 6 in addition to the alleged egg
throwers named above.la
10 Miss Marshall became Mrs. Martin subsequent to this incident
"There is some conflict about whether this took place at Ward's home or at a service
station The same conclusions would follow in either event.
12 There is no identification as egg throwers of the other six, Patsy King, Prances Allen,
Joan Long, Evelyn Collins, Mary Chavis, and Jimmie Lambert. The last two are not
complainants herein.
ONEITA KNITTING MILLS, INC. 61
Lambert's testimony on cross-examination was far less specific. Contrary to her
direct, she was unable to identify anyone who threw eggs at her car as she originally
passed the group beside the highway. She claimed that she stopped her car and
backed up in the direction of the group. At this point her car was again struck
by eggs. She then, from some 25 or 30 feet away, identified Vermie Bodiford,
Janice Marshall Martin, and Mary Chavis as the egg throwers. This testimony, it
is readily apparent, omits the previously identified Long and Howard and introduces
Chavis as a thrower.13 With some hesitation, after further examination, she again
identified Naomi Howard McGee as an egg thrower; she did not reidentify Long,
however.
Bodiford recalled being with the group, that Lambert followed them to Chavis
Road and took names, and claimed that she saw no signs of eggs. Martin and McGee
testified to the same substantial effect. All denied throwing eggs.
The area involved and the circumstances obviously make positive identification
difficult, and it appears to be well settled that mere presence and nonparticipation
is insufficient to support a denial of reinstatement. While I believe that eggs were
thrown, the General Counsel and the Union also point to certain conduct by nonstrik-
ing employees which they claim should be given weight in considering this and other
episodes which follow.14
Thus, Carolyn Zurcher Williams testified that she and other nonstrikers became
irritated by the fact that cars of strikers were following them after work. There-
fore, several days before August 13, she and other nonstrikers bought some balloons,
filled them with water, and proceeded to hurl them at the cars driven by strikers
whenever, in their opinion, they came too close. Her supervisor in the mill was
aware of what she was doing.
The witnesses for the General Counsel agree that the balloons were thrown but
differ as to the technique. What happened, according to the corroborative testimony
of Emma Long, Janice Marshall Martin, Willa Mae McGee, and Joyce High was
that cars driven by the nonstrikers overtook and passed cars driven by the strikers
and that Williams and nonstriker Barbara Ackerman threw the balloons at the wind-
shields of the strikers' cars. Supervisor Devereux was on the highway at the time
and was advised of the incident. There was no discipline of the nonstrikers. The
General Counsel and the Union point out that it was only subsequent to the forego-
ing incident which quickly became known that the egg throwing largely came into
the picture.
It is undisputed further that around Christmas of 1963 a nonstriker, Don DeSilva,
passed through the picket line adjacent to which open fires had been built because
of the cold. As he went by, he threw some firecrackers into the fire. The result-
ing explosion caused flying embers to scorch the coat of picket Ida Owens. DeSilva
was subsequently found guilty of disorderly conduct and fined $10. Supervisor
Devereux was in the local court at the time and DeSilva was not disciplined by
Respondent, although on March 1 he was discharged for undisclosed reasons, ap-
parently unrelated. There is a further factor that although Mary Chavis was iden-
tified by Lambert she was not disciplined by Respondent. This is not to say that
an employer may not pick and choose from among alleged offenders. It does reflect,
however, upon the basic identification made by Lambert.
Martha Watford uncontrovertedly testified that she i as on picket duty late in
July when nonstriker Louise Blakely leaned from a car in which she was a passenger
and squirted a water pistol at her. The liquid burned or made a hole in Watford's
blouse and undergarment. She continued to picket for about 1 hour, remedying the
alleged blistering of her body by holding her undergarment away from her skin.
Blakely did not testify herein. While I am inclined to feel that Watford may have
exaggerated the damage to her body, in view of continuing to picket despite the
presence of other pickets, I do find that some liquid of a more or less noxious nature
was used.
Under all the circumstances with evidence that this was not relatively a one-sided
affair, the less than compelling identification of the persons involved in the incident,
13 As I furtb-r read her testimony, she attributed the unaccepted invitation from Bodi-
ford to fight re have taken place at that time and not at Chavis Road
14 This is not to say that nonstrikers are required to be sitting ducks for aggression
by strikers or that the strikers herein were engaged in a tea party It is to say that
the applicable precedents described above compel of constrain me to consider the over-
all picture.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the change in identifications, and upon consideration of their status as unfair labor
practice strikers under the applicable precedents, I see no basis for denying reinstate-
ment to any of those named in this incident.15
10. The Linda Cannon incident
About the time of the previously described incident, Linda Cannon was driving
home from work. As she turned off the road, two cars occupied by women passed
and eggs and tomatoes were thrown at her. The two cars then turned around, drove
back, and the same objects were again thrown. During the first pass, she identified
Janice Marshall Martin as the driver of the first car, and Vermie Bodiford as the
thrower of tomatoes. She did not recognize anyone in the second car and her iden-
tification is based solely on the first time she was passed by the vehicles.
Martin recalled that incident but claimed that Cannon passed the car in which she
was a passenger. She placed Joyce High, Bodiford's sister, in the car, but not Bodi-
ford. She saw nothing thrown. Martin was admittedly served with a warrant and
pleaded guilty to disorderly conduct and reckless driving. Bodiford was similarly
served and pleaded guilty only to the former charge. It appears that the fines which
were assessed were paid by the Union.
Bodiford claimed herein that she was not on the scene, that she was at home that
day, and that she pleaded guilty for family reasons, unexplained, to protect her sis-
ter. High testified to the same effect and that the incident did not take place as
claimed by Cannon.
This brings to mind the language of Kohler, supra, that "sanctions other than dis-
charge-criminal prosecutions . are available to prevent and remedy certain em-
ployee misconduct ... " While I do not construe this as granting a license to en-
gage in homicide or mayhem, the sense of it, and I deem it to be binding upon me,
is that the denial of reinstatement is not "essential to the protection of legitimate
interests of employers and the public." 16
Assuming that this incident did take place as Cannon testified, it is also clear
that it followed the balloon incident by several days. On balance, the conclusion
is not warranted that the participants therein, whoever they may have been, are unfit
for further employment.17
11. The Eastland Glisson incident
Eastland Glisson worked throughout the strike and uncontrovertedly testified that
she was followed "several times" by cars containing Martha Watford, Willa Mae
McGee, Joyce High, and noncomplainants Mary Wilson, Nell West, and Wilcox.
When questioned further, she developed into a most vague witness who could not say
how often it happened and was unable to fix dates or occasions.
She later testified that she drove home for lunch during her 30-minute lunch break
and that Yvonne West and Edna Long would pull their car in front of hers and not
let her pass, adding, "they just crept along and they would turn around and laugh
and call me scab." They also used words which, according to Glisson, a lady would
not care to repeat. She did not state which of the two was the driver. There was
never any physical contact between the cars and Glisson was unable to state whether
other cars were in the area.
I find her testimony as to the first named group to be too vague to support a finding
of the nature urged herein by Respondent. While her testimony as to Yvonne West
and Edna Long was somewhat more factual, I do not deem it as rising to the stature
of conduct sufficiently grave to warrant withholding reinstatement.
12. The McKenzie gate incident
Two incidents remain for consideration herein. Both took place on the afternoon
of July 10, the first day of the strike. They are perhaps the most troublesome of
the lot for it is undisputed that the scene was more turbulent than on subsequent
16 Plant Manager Urtz testified that shortly before this hearing, McGee admitted to him
that eggs were thrown, but could not Identify the throwers. I credit Urtz and find that
they were thrown.
16 I deem it unnecessary to fully adopt the theory of the General Counsel that all the
various sanctions described therein dispose of the situation. If followed, the ultimate
conclusion would be that no unfair labor practice striker would be denied reinstatement
and not even Kohler goes that far.
17The sisters are different sizes and it is not contended that they resemble each other.
ONEITA KNITTING MILLS, INC. 63
days. Turning to the first incident, Vivian McKenzie and her daughter, Aloma
McKenzie Poston, arrived for work on the afternoon shift. Local police were on
duty in the vicinity of the picket line.
Observing that the car in front of her had stopped, Poston drove off and parked
nearby. The two ladies approached the picket line, did not hesitate and started
through the pickets at a rapid pace. In fact, Poston demonstrated herein how she
crossed her arms in front of her, not unlike a fullback running with a football, or
simulating same.
McKenzie testified that her daughter preceded her, that Hazel Brantley grabbed
her daughter and then grabbed McKenzie. She saw Joyce High, Evelyn Collins,
and Willa Mae McGee pulling at Poston who, nevertheless, was able to force her
way through the gate. In the process, Poston's blouse was torn and pulled apart.
During cross-examination she admitted that, in her affidavit, after being asked to tell
what happened, she named only Brantley as seizing her and her daughter, and stated
that Brantley was the only one she could identify; furthermore, in an affidavit on
July 11, 1963, to Respondent's attorney, she similarly named only Brantley.
Poston testified that there were 25 to 30 pickets at the gate as she started to enter.
Brantley and Collins grabbed her and High and McGee held and jerked her. Super-
visor Devereux was on the scene and immediately spoke up. He said that they
should turn her loose and there was to be no violence; the girls promptly complied.
Poston immediately entered behind her mother. She recognized only Brantley as
grasping her mother.
Collins, High, and Brantley gave different versions of the incident.18 Brantley
testified that she was standing at the gate, grasping a gate post with her left hand.
She saw Vivian McKenzie about to enter and reproached her for crossing the
picket line in view of how much the Union had done for her. She pointed out
that McKenzie had asked the shop committee to assist her in obtaining work follow-
ing substantial layoffs, that the shop committee had worked hard to return her to
work, and that McKenzie was repaying this by crossing the picket line.
McKenzie retorted that she was going in and grabbed at Brantley's left arm as did
Supervisor Devereux who was inside the gate; this move dislodged Brantley's watch
and caused it to fall to the ground. Brantley pulled loose and picked up her watch.
She did not see McKenzie thereafter, did not see Poston that morning, and did not
know how the latter's blouse was torn. Devereux did not testify herein.
Joyce High admitted being at the gate that afternoon. She testified that she saw
McKenzie and Poston and that Vivian McKenzie passed by with her, McKenzie's,
arm extended in front of her in such a manner as to knock High down to the ground.
She denied that she grabbed at either McKenzie or Poston. According to Collins,
she saw the two women approach and observed McKenzie pass through the gate un-
touched by Collins or anyone else. Poston followed her mother in a fast walk and,
as she passed Collins, swung her hip to one side and knocked Collins to the ground.
She denied grabbing at or tearing Poston's blouse.
Not unlike many such situations, the truth probably lies between both versions.
Poston's blouse was produced at the hearing and I am convinced that her blouse
was torn as she went through the picket line on this occasion by pickets and not by
nonstrikers. On the other hand, there was obviously much confusion. McKenzie's
affidavit, unlike her testimony herein, is silent as to the identity of anyone who held
Poston except Brantley. The inference is warranted that she was not averse to
bolster her daughter's testimony, particularly so inasmuch as private litigation is
pending between Poston and her alleged assailant-defendants.
I do not believe that would-be workers are required to stand by and wait until
the strikers choose to make a path for them. This would be a curious refinement
of the purported rights they have under Section 7 of the Act. On the other hand,
police were on the scene and in a position to readily clear a path. In this context,
the two women chose to advance rapidly into the group and one, Poston, assumed a
position consistent with one utilized in football so as to rapidly achieve yardage.
I also think it likely that McKenzie and Poston were probably ill situated to pin-
point their alleged assailants. Presumably they were perturbed; indeed, most peo-
ple in their position would have so reacted because of the picket line. Stated other-
wise, I doubt that one passing through a group of people he knows to be hostile to
him is the most reliable witness of what takes place. True, those on the picket line
are highly interested witnesses who wished to be returned to their positions. On the
'- McGee's testimony was taken at her home because of imminent or overdue childbirth.
She was only questioned concerning another incident dsecribed below.
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other hand, as indicated from the unsatisfactory nature of McKenzie's testimony, and
the interest of the McKenzie's in private litigation, I am not persuaded that their ver-
sion is the correct one.
On balance, I find that there was turmoil at the gate, that there was some brief
impediment to the hasty entrance of the two women, and that, at best, they recalled
some of those on the scene but not necessarily those who tore Poston's blouse or
who may have grasped either lady. Accordingly, although the question is not free
from doubt, I shall not recommend that reinstatement be withheld from the com-
plainants involved herein.
13. The Bouchette fence incident
This incident is as troublesome as that described above. Thelma Bouchette re-
ported for work on the afternoon of July 10, saw the group of pickets at the gate, and
immediately decided to enter the plant in another manner, viz, by climbing over the
plant fence Bouchette is but 5 feet tall. The fence is 7 feet high and is a metal
cyclone fence with chain links which form sharp open prongs at the top, some 2 inches
long. A tube or bar parallels the ground on the inside of the fence, below the ex-
posed prongs. The means by which Bouchette proposed to attempt the fence was to
stand on the rear bumper of an automobile parked some 4 to 5 feet distant from
the fence. The record does not disclose precisely how far this was from the group
of pickets.
After mounting the bumper, she reached for the fence, obviously at an awkward
angle, and attempted to climb over. At this point, she encountered logistics prob-
lems as well as uncooperative pickets. As will appear, I believe that she encountered
the former first.
Bouchette initially testified that she was able to reach over and grasp the inside
bar of the fence and to place one foot on top of the fence. At this point, Willa Mae
McGee grabbed her other leg and started pulling on it. Bouchette later added that
Nell West, to be distinguished from complainant Yvonne West, also grabbed this
same leg. She recalled that Nell West cursed her as she was on the fence and
Bouchette called to employees Jackie Powers and Jose Mallo on the inside of the
fence to help her.
She claimed that her wrists were over the fence and not cut and that they did not
start hurting until McGee and West commenced pulling on her leg She was able
to achieve release only when Powers and Mallo, on the inside, lifted her wrists, thus
permitting her to drop back on the outside of the fence. It is undisputed that her
wrists were bruised and required bandaging. It is also undisputed that she reported
for work on the following day and continued to work thereafter.
Jackie Powers testified for Respondent that Nell West and Willa Mae McGee
caught Bouchette by the feet and stated that she could not go in. He removed her
wrists from the fence and asked the two women to let her down. Interposing at this
point, it certainly would seem that if her wrists were released, Bouchette could not
help but fall back on the outside of the fence.
An affidavit previously given by Powers to the General Counsel indicates that his
present recollection is significantly different. He there stated that Nell West was
pulling on Bouchette, that West stated Bouchette was not going to work, and that
he saw "no others" pulling on Bouchette. He testified that he first thought of
McGee's involvement therein when he was queried concerning the episode on the
witness stand and that he now recalled her presence. The fact is that McGee was
one of only two involved in the matter and this does reflect on Powers' recollection
and evaluation of the incident.
Mallo's testimony was somewhat more realistic. He observed Bouchette's attempt
to jump on the fence from the car "which she couldn't do." As I read his testi-
mony, he saw Bouchette grasp the top of the fence, after which one of the pickets
took hold of her leg; this was McGee, although he thought that West was also in-
volved. He added that Bouchette never got a foot on the fence because the angle
was impossible and, at best, she might have put one foot against the side of the
fence. When the two men released her hands, she slid down outside the fence.
I note that the name of West, who did not testify herein, was on a list presented
for reinstatement on January 28, 1964, and she apparently was returned to work
without objection.
McGee freely admitted grabbing Bouchette's leg, but testified that Bouchette had
first complained about her hands hurting and had asked Powers and Mallo for as-
sistance. It is clear that West also grabbed Bouchette by the same leg or ankle.
On the entire picture, I believe that the sequence was as follows. Bouchette in-
expertly attempted to surmount the fence from a difficult if not impossible angle for
ONEITA KNITTING MILLS, INC. 65
one of her size. Her wrists became caught, she panicked and called for help; at
about this time, McGee and West grasped one of her feet, manifestly in an effort
to impede her passage across the fence. It would seem that she could not have made
it across in any event. It is also clear that McGee and West sought to deter her
crossing.
It perhaps begs the question to term this a matter of "animal exuberance" on the
part of McGee and West. It also begs the issue to note that Bouchette probably at-
tempted something beyond her capacity. On the one hand, the girls instinctively
reacted to Bouchette's act and attempted to impede her progress. On the other hand,
Respondent apparently did not view adversely West's participation in the incident,
although it is clear that she was as involved as McGee. This does reflect on the
seriousness with which Respondent allegedly viewed the incident.
Were this a matter of first impression, I might view it otherwise, but, in view of
the stated court and Board precedents, as well as the various considerations hereto-
fore expressed, including the absence of discipline of West, I am constrained to find
adversely to Respondent on this incident, and shall recommend the reinstatement
of McGee.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, and occurring in con-
nection with its operations set forth in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States and tend
to lead to labor disputes burdening and obstructing commerce and the free flow
thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, I shall rec-
ommend that it cease and desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Respondent has unlawfully denied reinstatement to 34 strik-
ing employees and has imposed discriminatory conditions of employment upon
5 reinstated employees of the set-sleeve department. I shall therefore recommend
that Respondent offer immediate and full reinstatement to said 34 strikers to the
positions they held prior to the strike, without prejudice to seniority or other rights
and privileges. I shall further recommend that Respondent make whole all 39 for
any loss of pay suffered by reason of its discrimination against them. Said loss
of pay, based upon earnings which each normally would have earned as wages from
the date of discrimination to the date of reinstatement, 19 shall be computed on a
quarterly basis in the manner provided in F. W. Woolworth Co., 90 NLRB 289
See N.L R.B. v. Seven-up Bottling Co., 344 U.S 344. Interest thereon shall be added
at the rate of 6 percent as provided in Isis Plumbing & Heating Co, 138 NLRB 716
I shall further recommend that Respondent be ordered to bargain with the Union,
upon request, concerning wages, hours, and conditions of employment, including the
use of male knitters.
The nature of the unfair practices committed warrants the inference that Respond-
ent maintains an attitude of opposition to the purposes of the Act with respect to the
protection of employee rights in general. It will accordingly be recommended that
Respondent cease and desist from infringing in any manner upon the rights guaran-
teed in Section 7 the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Oneita Knitting Mills, Inc., is an employer within the meaning of Section 2(2)
of the Act.
2. International Ladies' Garment Workers' Union, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees at Respondent's plant at Andrews,
South Carolina, including carpenters, truckdrivers, janitors, knitting machine fixer-
learners, and sewing machine fixers, but excluding office clerical employees, payroll
clerks, foreladies and assistant foreladies, knitting machine fixers, and all other
"In the case of the five set-sleeve operators, this would be the date they are returned
to sew-band work.
796-027-66-vol 153-6
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisors constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. International Ladies' Garment Workers' Union, AFL-CIO, was in 1963 and
1964, and has been at all times material herein, the representative of the employees
in the above-described appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By failing and refusing to bargain in good faith with the Union as the repre-
sentative of the employees in the above-described unit, and by unilaterally making
changes in working conditions, Respondent has engaged in unfair labor practices
within the meaning of Section 8 (a) (5) of the Act.
6. By discriminating on and after February 4, 1964, with respect to the hire and
tenure of knitters Marjorie Ward, Shirley Ackerman, Martha V. Bruce, Virginia
Norris, Susan Turner, Mady Johnson, Lorene Eaddy, Walker Creel, Frances Player,
Ruby White, Getty Howard, Cecile Cusack, Dorothy Mau, Dorothy Turner, Clara
McClary, and Juanita Casselman; set-sleeve operators Lizzie Ward, Christine Floyd,
Dorothy Glisson, Odean Smith, and Elma Powell; and other employees Yvonne West,
Edna Lee Long, Harris Casselman, Martha Watford, Judy Ackerman, Jack Newton,
Richard Cook, Nettie Miriam Owens, Frances Allen, Hazel Brantley, Naomi McGee,
Patsy King, Vermie Bodiford, Joyce High, Emma Joan Long, Willa Mae McGee,
Evelyn Collins, and Janice Marshall Martin, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
7. By the foregoing conduct, Respondent has engaged in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and pur-
suant to Section 10(c) of the National Labor Relations Act, as amended, it is hereby
recommended that Respondent, Oneita Knitting Mills, Inc., Andrews, South Caro-
lina, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International Ladies' Garment Workers' Union,
AFL-CIO, or in any other labor organization of its employees, by refusing reinstate-
ment to unfair labor practice strikers upon application, by imposing discriminatory
conditions of employment upon reinstated strikers, or by discriminating in any other
manner in regard to hire or tenure of employment, or any term or condition thereof.
(b) Unilaterally changing conditions of employment without discussion with the
above-named labor organization as the exclusive bargaining representative of the
employees in the above-described unit.
(c) In any other manner interfering with, restraining, or coercing employees in
the right to self-organization, to form labor organizations, to join or assist the above-
named or any other labor organization, to bargain collectively through representa-
tives of their own choosing, to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from any or
all of such activities.
2. Take the following affirmative action which is deemed necessary to effectuate
the policies of the Act:
(a) Offer to its 16 knitters, named above, and to its other 18 strikers, named
above, immediate and full reinstatement to their former positions without prejudice
to seniority or other rights and privileges and make them whole for any loss of pay
suffered by reason of the discrimination against them, in the manner provided above
in the section entitled "The Remedy."
(b) Restore to the five set-sleeve operators named above the sew-band work which
they exclusively performed prior to the strike which commenced on July 10, 1963,
and make them whole for any loss of pay suffered by reason of the discrimination
against them on and after February 4, 1964, in the manner provided above in the
section entitled "The Remedy."
(c) Bargain collectively, upon request, with the above-named labor organization
as the exclusive representative of the employees in the above-described appropriate
unit with respect to rates of pay, wages, hours, or other terms and conditions of
employment, including the use of male knitters.
(d) Preserve and, upon request, make available to the National Labor Relations
Board and its agents, for examination and copying, all payroll records, social security
payment records, timecards, personnel records and reports, and all other records
necessary to determine the amounts of back pay due under the terms of this recom-
mended order.
ONEITA KNITTING MILLS, INC. 67
(e) Post at its plant in Andrews, South Carolina, copies of the attached notice
marked "Appendix." 20 Copies of said notice, to be furnished by the Regional Direc-
tor for Region 11, shall, after being duly signed by Respondent, be posted by it im-
mediately upon receipt thereof and maintained for a period of 60 consecutive days
thereafter in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 11, in writing, within 20 days from
the date of receipt of this Decision, what steps it has taken to comply herewith.21
"'In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order"
a In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read* "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT discourage membership in International Ladies' Garment Work-
ers' Union, AFL-CIO, or any other labor organization of our employees, by
refusing reinstatement to unfair labor practice strikers, by imposing discrimina-
tory conditions of employment upon reinstated strikers, or by discriminating in
any other manner in regard to hire or tenure of employment, or any term or
condition thereof.
WE WILL NOT unilaterally change conditions of employment without discus-
sion of the issue with the above-named labor organization as the exclusive
representative of the employees in the unit described below:
All production and maintenance employees of our plant at Andrews,
South Carolina, including carpenters, truckdrivers, janitors, knitting ma-
chine fixer-learners, and sewing machine fixers, but excluding office clerical
employees, payroll clerks, foreladies and assistant foreladies, knitting ma-
chine fixers, and all other supervisors.
WE WILL offer the employees named below immediate and full reinstatement
to their former positions without prejudice to seniority or other rights and
privileges, and WE WILL make them whole for any loss of pay suffered by reason
of our discrimination against them.
Marjorie Ward Cecile Cusack Nettie Miriam Owens
Shirley Ackerman Dorothy Mau Frances Allen
Martha V. Bruce Dorothy Turner Hazel Brantley
Virginia Norris Clara McClary Naomi McGee
Susan Turner Juanita Casselman Patsy King
Mady Johnson Yvonne West Vermie Bodiford
Lorene Eaddy Edna Lee Long Joyce High
Walker Creel Harris Casselman Emma Joan Long
Frances Player Martha Watford Willa Mae McGee
Ruby White Judy Ackerman Evelyn Collins
Getty Howard Jack Newton Janice Marshall Martin
Richard Cook
WE WILL restore to the five set-sleeve operators named below the sew-band
work which they exclusively performed prior to the strike of July 10, 1963, and
WE WILL make them whole for any loss of pay suffered by reason of the dis-
crimination against them.
Lizzie Ward Dorothy Glisson Elma Powell
Christine Floyd Odean Smith
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL bargain collectively, upon request, with the above-named labor
organization as the exclusive representative of the employees in the above-
described appropriate unit with respect to rates of pay, wages, hours, or other
terms and conditions of employment, including the use of male knitters.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor orga-
nizations, to join or assist the above-named or any other labor organization, to
bargain collectively through representatives of their own choosing, to engage in
concerted activities for the purpose of collective bargaining or other mutual
aid or protection, and to refrain from any or all such activities.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of the above-named or any other labor organization.
ONEITA KNITTING MILLS, INC.,
Employer.
Dated------------------- By-------------------------------------
(Representative) (Title)
NOTE.-We will notify any above-named employee, if presently serving in the
Armed Forces of the United States, of the right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 1831
Nissen Building, Winston-Salem, North Carolina, Telephone No. 724-8356, if they
have any questions concerning this notice or compliance with its provisions.
Chicago Federation of Musicians , Local 10, American Federation
of Musicians and Shield Radio & T.V. Productions , Inc. and its
agent Martin M. Rubenstein and Harry Hawthorne . Cases Nos.
13-CB-1466 and 13-CA-5695. June 17,1965
DECISION AND ORDER
On September 30, 1964, Trial Examiner Harold X. Summers issued
his Decision in the above-entitled proceeding, finding that the
Respondents had not engaged in the alleged unfair labor practices
and recommending that the consolidated complaint herein be dis-
missed in its entirety, as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel, the Respondent Union,
the Charging Party, and National Association of Orchestra Leaders,
as amicus curiae, filed exceptions to the Trial Examiner's Decision
and briefs in support thereof. The Respondent Union also requested
oral argument.'
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
1 Because in our opinion the record, exceptions, and briefs adequately set forth the
issues and positions of the parties, this request is hereby denied.
153 NLRB No. 11.