S. Y. W. Hosiery Mills, Inc.

National Labor Relations Board - Board Decisions

Apr 14, 1939

12 N.L.R.B. 251 (N.L.R.B. 1939)

In the Matter of S. Y. W. HOSIERY MILLS, INC. and AMERICAN
FEDERATION OF HOSIERY WORKERS, NORTH CAROLINA DISTRICT
Case No. C-823.-Decided April 14,1939
Half Hose Manufacturing Industry-Interference, Restraint, and Coercion:
expressed opposition to labor organization ; threat to discharge employees joining
union-Discrimination : discharge for union activity ; to discourage membership
in union-Reinstatement Ordered: discharged employee-Back Pay: awarded.
Mr. Charles Y. Latimer, for the Board.
Cooper, Curlee d Sanders, by Mr. Thomas D. Cooper, of Burling-
ton, N. C., for the respondent.
Mr. Frank J. Ward, of Burlington, N. C., for the Union.
Mr. Louis Cokin, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by American Federation of Hosiery Work-
ers, North Carolina District, herein called the Union, the National
Labor Relations Board, herein called the Board, by the Regional Di-
rector for the Fifth Region (Baltimore, Maryland), issued its com-
plaint dated May 6, 1938, against the S. Y. W. Hosiery Mills, Inc.,
Burlington, North Carolina, the respondent herein, alleging that the
respondent had engaged in and was engaging in unfair labor practices
affecting commerce, within the meaning of Section 8 (1) and (3) and
Section ,2 (6) and (7) of the National Labor Relations Act, 49, Stat.
449, herein called the Act. Copies of the complaint and accompanying
notice of hearing were duly served upon the respondent and upon the
Union.
Concerning the unfair labor practices, the complaint alleged, in
substance, that (1) the respondent terminated the employment of
E. L. Ferguson and refused to reinstate him thereafter for the reason
that he engaged in organizational activities on behalf of the Union,
and that (2) the respondent at various times made speeches hostile to
the membership of its employees in, and their affiliation with, a labor
organization, thus discouraging membership in the Union. On May
12 N. L. R. B., No. 36.
251
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
18,1938, the respondent filed an answer to the complaint, denying that
its manufacturing activities are interstate in nature and that it had en-
gaged in the alleged unfair labor practices.
Pursuant to a notice and amended notice, duly served upon the
respondent and the Union, a hearing was held on May 27, 1938, at
Graham, North Carolina, before William R. Ringer, the Trial Exam-
iner duly designated by the Board. The Board and the respondent
were represented by counsel, and the Union by its representative, and
all participated in the hearing. Full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to introduce evidence bearing
upon the issues was afforded all parties. At the close of the Board's
case, the respondent moved to dismiss the complaint on the ground
that the Board lacked jurisdiction. The motion was denied at the close
of the hearing. At the conclusion of the hearing, counsel for the Board
moved to conform the pleadings to the proof. The motion was
granted. During the course of the hearing, the Trial Examiner made
several rulings on other motions and on objections to the admission of
evidence. The Board has reviewed all the rulings of the Trial Exam-
iner and finds that no prejudicial errors were committed. The rulings
are hereby affirmed.
On July 22, 1938, the Trial Examiner issued his Intermediate Re-
port, copies of which were duly served upon all parties, finding that
the respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of Section 8 (1) and (3)
and Section 2 (6) and (7) of the Act, and recommending that the re-
spondent cease and desist therefrom and, affirmatively, offer full rein-
statement with back pay to the individual named in the complaint as
having been discriminated against. Neither the respondent nor the
Union filed exceptions to the Intermediate Report. Although offered
an opportunity to apply for oral argument before the Board and for
permission to file briefs, neither so applied.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a North Carolina corporation engaged in the busi-
ness of manufacturing half hose at its plant in Burlington, North
Carolina. Approximately 20 per cent of the raw materials used by
the respondent are shipped to its plant from points outside the State.
The respondent deals exclusively with a sales agent in New York
City, who purchases all its finished products and furnishes it with
shipping instructions. Approximately 100 per cent of the finished
products are thus shipped to States other than North Carolina. The
S. Y. W. HOSIERY MILLS, INC. 253
respondent employs an average of 125 employees and does an annual
business of $215,000.
U. THE ORGANIZATION INVOLVED
American Federation of Hosiery Workers, North Carolina District,
is a labor organization affiliated with the Textile Workers Organizing
Committee of the Committee for Industrial Organization. It admits
to membership all production workers in the respondent's plant, ex-
cluding supervisors and clerical employees.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
Early in October 1937 the Union commenced organization activities
among the respondent's employees. The employees, who were paid on
a piece-rate basis, customarily congregated in a variety store across
the street from the respondent's plant when work was slack. Follow-
ing the advent of the Union, the employees who thus spent their spare
time discussed union organization among other things. On October
19, 1937, Fowler, a foreman in the knitting department, approached a
group of employees who had just come out of the store and announced,
"Join the damned Union, and I will fire every damned one of you that
does when I find it out." Several months later the respondent issued
a rule forbidding its employees from congregating at the store during
working hours.
During the period of union organization, W. A. Shoffner, president
of the respondent, sought to discourage Edward L. Ferguson, the most
active union member in the plant, from continuing his union activity.
According to Ferguson and several witnesses who overhead the state-
ment, Shofiner stated that "John L. Lewis was a man who was more or
less using the people as suckers, and that he was getting rich from
this." Shoffner did not deny having made this statement.
We find that by the foregoing acts of its supervisory employees the
respondent interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
B. The discharge
Edward L. Ferguson had been employed by the respondent since
February 1934 and at the time of his discharge was earning from $12
to $14 a week as a hose border. Ferguson joined the Union on Octo-
ber 15,1937, and shortly thereafter became a member of its organizing
committee. He was active in soliciting members for the Union and
during the months of November and December succeeded in persuad-
ing about 60 of his fellow employees to join.
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ferguson was discharged on January 21, 1938, by his foreman,
Lindley, who offered no reason for the termination of employment but
merely told the former that he was sorry. On the same day a new
employee was hired to take Ferguson's place. Shortly thereafter,
Shoffner told an Examiner for the Board that Ferguson was discharged
because business was slack.
At the hearing both Lindley and Shoffner testified that Ferguson
was a competent employee and that his work had always been satis-
factory. According to Lindley, Ferguson was discharged, despite his
competence, because he complained about work he was told to perform.
The only instance in the record of such complaint occurred in De-
cember 1937, when Ferguson had been transferred under protest to
the boiler room where for several weeks he was compelled to work
from 9 to 18 hours a day, although he was paid for only 8 hours per
day of such work. The respondent, however, did not assign as a reason
for the discharge Ferguson's protest against this transfer, nor did
Lindley cite any instances of his alleged complaints. Moreover, Fer-
guson's testimony that the respondent never warned him that his atti-
tude toward his work was unsatisfactory, remained unrefuted in the
record.
It is apparent that Ferguson was discharged because of his union
activity. As described above, he was the most outstanding member
of the Union and had succeeded in soliciting about 50 per cent of the
respondent's employees to join the Union. Moreover, shortly before
his discharge, Shoffner sought to discourage his union activities. The
explanation advanced to the Board's Examiner for Ferguson's dis-
charge was patently untrue and rejected by the respondent at the
hearing. The reason advanced at the hearing is unsupported by con-
vincing evidence.
We find that the respondent in discharging Ferguson discriminated
in regard to his tenure of employment, thereby discouraging member-
ship in the Union and interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMER)DE
The activities of the respondent set forth in Section III above, oc-
curring in connection with the operations of the respondent described
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 of commerce.
S. Y. W. HOSIERY MILLS, INC . 255
V. TAE REMEDY
Having found that the respondent discriminatorily discharged Ed-
ward L. Ferguson, we shall order the respondent to offer him immedi-
ate reinstatement to his former position and to make him whole for
any loss of pay he has suffered by reason of his discharge by payment
to him of a sum equal to the amount which he normally would have
earned as wages from the date of his discharge to the date of the
offer of reinstatement, less his net earnings 1 during said period. We
shall also order the respondent to cease and desist from its unfair labor
practices.
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, North Carolina Dis-
trict, is a labor organization, within the meaning of Section 2 (5) of
the Act.
2. By discriminating in regard to the tenure of employment of Ed-
ward L. Ferguson, thereby discouraging membership in American
Federation of Hosiery Workers, North Carolina District, the respond-
ent 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 re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
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 respond-
1 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 Crossett Lumber Company and United Brotherhood of Carpenters and
Joiners of America, Lumber and Sawm ill Workers Union, Local 2590, S N L. R. B. 440.
Monies received for work performed upon Federal , State, county , municipal, or other
work-relief projects are not deductible as "net earnings ," but as provided in the Order
below, shall be deducted and paid over to the appropriate fiscal agency of the Federal,
State, county , municipal , or other government or governments which supplied the funds
for said work-relief projects.
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent, S. Y. W. Hosiery Mills, Inc., Burlington, North Carolina, and
its officers, agents, successors, and assigns, shall :
1. Cease and desist :
(a) From discouraging membership in American Federation of
Hosiery Workers, North Carolina District, or any other labor organi-
zation of its employees by discriminating in regard to hire or tenure
of employment or any term or condition of employment;
(b) From in any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organization,
to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Edward L. Ferguson immediate and full reinstatement
to his former position, without prejudice to his seniority and other
rights and privileges;
(b) Make whole said Edward L. Ferguson for any loss of pay he
has suffered by reason of his discharge, by payment to him of a sum
of money equal to that which he would normally have earned as wages
during the period from the date of his discharge to the date of such
offer of reinstatement, less his net earnings during said period; de-
ducting, however, from the amount otherwise due to him monies re-
ceived by him during said period for work performed upon Federal,
State, county, municipal, or other work-relief projects, and pay over
the amount so deducted to the appropriate fiscal agency of the Federal,
State, county, municipal, or other government or governments which
supplied the funds for said work-relief projects;
(c) Post immediately and keep posted for a period of at least sixty
(60) consecutive days from the date of posting, notices in conspicuous
places throughout the plant, stating that the respondent will cease
and desist in the manner set forth in 1 (a) and (b), and that it will
take the affirmative action set forth in 2 (a) and (b) of this Order;
(d) Notify the Regional Director for the Fifth Region in writing
within ten (10) days from the date of this Order what steps the re-
spondent has taken to comply herewith.