Talladega Cotton Factory, Inc.

National Labor Relations Board - Board Decisions

Jul 22, 1953

106 N.L.R.B. 295 (N.L.R.B. 1953)

TALLADEGA COTTON FACTORY, INC. 295
Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (3) and
(1) of the Act.
5. By interfering with, restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act, the Respondent has engaged in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices affect commerce within the meaning of Section
2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
TALLADEGA COTTON FACTORY, INC. and TEXTILE WORK-
ERS UNION OF AMERICA, CIO. Case No . 10-CA-806. July
22, 1953
DECISION AND ORDER
On February 28, 1952, Trial Examiner James A. Shaw
issued his Intermediate Report in the above entitled proceed-
ing, finding that the Respondent had engaged in and was en-
gaging in certain unfair labor practices and recommending
that it cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report
attached hereto. The Trial Examiner also found that the Re-
spondent had not engaged in certain other unfair labor practices
alleged in the complaint and recommended dismissal of the
complaint with respect to such allegations. Thereafter, the
Respondent and the General Counsel filed exceptions to the
Intermediate Report and supporting briefs.
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 Intermediate Report, the exceptions and briefs,
and the entire record in the case and hereby adopts the find-
ings, conclusions, and recommendations of the Trial Examiner
with the exceptions, modifications, and additions noted below.
1. We agree with the Trial Examiner that the Respondent
discharged supervisory employees, Overseers Marion K.
Shiflett and Seybourn Pilkington, because of their failure ef-
fectively to support the Respondent's antiunion campaign by
interfering with, restraining, and coercing its nonsupervisory
employees in the exercise of their self-organizational rights,
and not because of any prounion activities on the part of these
supervisors, as contended by the Respondent. However, we are
unable to concur in the Trial Examiner's conclusion that the
discharges did not violate Section 8 (a) (1) of the Act because
Shiflett and Pilkington had actually followed, though reluctantly,
the Respondent's orders.
As fully discussed in the Intermediate Report, the Respond-
ent learned of the Union's efforts to organize its employees
shortly after the commencement of its campaign in early
July 1949, and took immediate steps to thwart that campaign.
Among other things, it called meetings of its supervisors,
which Overseers Shiflett and Pilkington and several non-
106 NLRB No. 61.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisory employees attended. At these meetings, the Re-
spondent told those present that it was opposed to, and would
not have, a union in its plant, and instructed them to put a stop
to the union activities, to "break the Union up," and to talk to
the employees and "get them out of the Union." i The Respond-
ent also informed those present that it was relying on the
overseers who, it believed, were the only ones who could
successfully defeat the Union's campaign.
Although expressing an unwillingness to engage in antiunion
activities, Overseers Shiflett and Pilkington nevertheless, at the
Respondent's repeated insistence, reluctantly interrogated em-
ployees under their supervision concerning their union member-
ship, their attendance at union meetings, and their voting inten-
tions, and informed those employees who asked for the reason
for the interrogation that the "office" wanted to know. Similar
acts of interrogation were engaged in by the Respondent's
officers and other supervisors.
The Respondent' s pressure on Overseers Shiflett and Pilking-
ton to secure the employees' withdrawal from the Union in-
creased as the date of the scheduled representation election
approached and culminated about a week before the election in
blunt warnings to Shiflett by President McMillan and Superin-
tendent Murphy that unless he got the employees out of the
Union they would get a new overseer.' On August 25, 1949,
the Union won the election. True to its prior warnings, and
on the very same day, Superintendent Murphy summoned
Shiflett to his office and discharged him with the explanation
that he already knew the reason . The next day Murphy dis-
charged Pilkington, telling him that the reason for his discharge
was that he "let the boys join the Union . . . [and that he] just
didn't try hard enough" to keep them out.
It is clear from the foregoing, as the Trial Examiner found,
that the Respondent was motivated in discharging Shiflett and
Pilkington by their failure to prevent the Union from becoming
the bargaining representative of its employees.' Unlike the
Trial Examiner, however, we find that these discharges inter-
fered with, restrained, and coerced rank-and-file employees
in the exercise of their self - organizational rights guaranteed
in Section 7 of the Act.
It cannot be seriously argued that the discharges were in-
tended to maintain the Respondent's neutrality. The Respond-
ent's opposition to the Union, which was too well known to the
rank-and-file employees, would belie such an assertion. Indeed,
not only did Shiflett and Pilkington, though halfheartedly and
i The Respondent objected to the admission in evidence of the facts of the conversations
between its supervisory employees , contending that these conversations were confidential
communications. We find such contention to be without merit. Southeastern Pipeline Com-
pany, 103 NLRB 341.
2 Early in the campaign when the Respondent first learned that Shiflett's 2 sons, John Edwin
and Harold, had joined the Union, both President McMillan and Superintendent Murphy urged
Shiflett, although unsuccessfully, to use his parental influence to get his 2 sons out of the
Union.
3 It is noted that the question of the Respondent's motivation in discharging Shiflett and
Pilkington was plainly neither litigated nor in issue in the representation case involving
objections to the election, which is discussed in the intermediate Report
TALLADEGA COTTON FACTORY, INC. 297
under continuous pressure from the Respondent ' s officials,
engage on the Respondent ' s behalf in conduct prohibited by the
Act, but the Respondent ' s officials themselves and other
supervisors also engaged in unfair labor practices . Moreover,
the record discloses that nonsupervisory employees were aware
that Shiflett and Pilkington were acting under instructions
from the Respondent to defeat the Union ' s organizing campaign.
Thus, nonsupervisory employees were present at meetings
when the Respondent directed Shiflett and Pilkington to get
the employees out of the Union, when Pilkington protested
against Superintendent Murphy's orders to supervisors to
"break the Union up," and when Murphy instructed Shiflett
to secure his sons' withdrawal from the Union.
In these circumstances, where, as here , the discharges
followed immediately on the heels of the Union ' s victory in
the Board - conducted election , the discharges plainly demon-
strated to rank-and-file employees that this action was part
of its plan to thwart their self - organizational activities and
evidenced a fixed determination not to be frustrated in its
efforts by any halfhearted or perfunctory obedience from its
supervisors. In our opinion , the net effect of this conduct was
to cause nonsupervisory employees reasonably to fear that
the Respondent would take similar action against them if they
continued to support the Union. For this reason, we find that
the discharges violated Section 8 (a) (1) of the Act.4
The Respondent contends , however, that as supervisors are
not employees under the amendments to the Act , it was privi-
leged to discharge Shiflett and Pilkington . Although it is true
that under the amendments the Act no longer protects super-
visors discharged for union activities , we find , for the reasons
discussed in the majority opinion in Inter-City Advertising,
that the amendments did not change the law heretofore applied
in cases comparable to the present one, where the discharge
of supervisory employees constituted an invasion of the self-
organizational rights of rank -and-file employees.
The Respondent also contends that the allegations of the
complaint relating to the discharge of Overseers Shiflett and
Pilkington are barred by Section 10 (b) because these discharges
occurred more than 6 months before the filing and service of
the fourth amended charge which specifically alleged this viola-
tion.' The record discloses that on August 24, 1949, the Union
filed its original charge which was served on August 26. This
charge alleged that the Respondent discriminatorily discharged
4lnter-City Advertising Company, 89 NLRB 1103, modified on other grounds 190 F. 2d 420
(C. A. 4); Vail Mfg . Co., 61 NLRB 181, enfd . 158 F . 2d 664, 666-667 (C. A. 7), cert . denied
331 U. S. 835; Richter 's Bakery, 46 NLRB 447 , 450, enfd. 140 F. 2d 870, 871 - 2 (C. A. 5),
cert . denied 322 U. S. 754; Eagle-Picher Mining & Smelting Company, 16 NLRB 727, 822,
enfd. 119 F . 2d 903, 911 - 913 (C. A. 8); Ronrico Corp., 53 NLRB 1137 ; Reliance Mfg. Co.,
60 NLRB W.
sContrary to the Respondent's further contention , the complaint is not invalid because
based on charges filed by the Union at a time when its parent organization , the CIO, was
not in compliance with Section 9 (f), (g), and ( h) of the Act, in view of the fact that the CIO
was in compliance at the time the complaint was issued . Dant & Russell, Ltd., 73 S. Ct.
375.
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5 named nonsupervisory employees and concluded that "by
these acts, and other acts and conduct, within the past 6 months,
the Employer . . . has interfered with, restrained and coerced
its employees in the exercise of their rights as guaranteed
in Section 7 of the Act." After the filing of that charge,
Shiflett and Pilkington were discharged on August 25 and 26,
1949, respectively. Their discharges were included in the
Union's fourth amended charge' which was filed about 13
months later, and alleged that by this conduct the Respondent
interfered with, restrained, and coerced employees in the
exercise of their rights guaranteed in Section 7 of the Act.
Contrary to the Respondent's contention, we find that the
complaint properly included the allegations respecting Shiflett's
and Pilkington's discharge. Following the rationale of Cathey
Lumber,7 the Board has held that once the Board's jurisdiction
is invoked by the timely filing and service of a charge, any
unfair labor practices uncovered while the charge is being
investigated becomes cognizable by the Board and may be
included in the complaint without amending the charge.' As the
unlawful discharges of Shiflett and Pilkington occurred after
the filing of the original charge, we find that Section 10 (b)
does not preclude their inclusion in the complaint.
In any event, we find that the first amended charge, which
was filed on September 9, 1949, about 2 weeks after Shiflett's
and Pilkington's discharge, is sufficient to support the com-
plaint herein. Like the original charge, the first amended
charge contained a broad allegation of interference with,
restraint, and coercion of employees in violation of Section
8 (a) (1). In Cathey Lumber, the Board held that the 6-month
limitation in Section 10 (b) extinguished liability for unfair
labor practices committed more than 6 months before the
filing and service of a charge, but did not prevent the Board
from remedying any unfair labor practices committed within
6 months of that date, even though they were not particularized
in the charge. As the discharge of Shiflett and Pilkington
occurred within 6 months of the filing and service of the
amended charge, and especially as the allegations of the com-
plaint in question are merely an enlargement of the broad
8 (a) (1) allegation of the amended charge, we find that the
discharges were properly alleged in the complaint.
2. We agree with the Trial Examiner that the Respondent,
in violation of Section 8 (a) (3) and (1), discriminatorily dis-
charged James Edwin Shiflett and discriminatorily demoted
Chester Magouyrk. However, we do not agree that the Re-
spondent similarly violated the Act in the discharge of Harold
Shiflett. Our disagreement stems not from any disapproval of
the Trial Examiner's credibility findings, but from the in-
ferences drawn as to the reason which motivated the discharge.
6 A first amended charge was filed September 9, 1949, and second and third amended
charges within 3 months thereafter, which added the names of other nonsupervisory em-
ployees allegedly discriminatorily discharged.
786 NLRB 157.
6 Ferro Stamping and Manufacturing Company, 93 NLRB 1459; Jay Company, Inc , 103
NLRB 1645.
TALLADEGA COTTON FACTORY, INC. 299
The record established, and the Trial Examiner found, that
Harold Shiflett in the course of his duties made an improper
gear change that resulted in the production of a quantity of
defective yarn, and that thereafter, in an effort to conceal his
mistake, Harold Shiflett changed the marking on the yard.
Although the question is not free from doubt, we are not
entirely persuaded, in view of Harold Shiflett's concealment
of his mistake which resulted in further loss of yarn,' that
the preponderance of the evidence establishes that the Re-
spondent was motivated in discharging him for his union
activities rather than for his dereliction. Accordingly, we
shall dismiss the allegation of the complaint with respect to
Harold Shiflett.
THE REMEDY
Having found that the Respondent has engaged in and is en-
gaging in unfair labor practices in violation of Section 8 (a) (1)
and (3) of the Act, we shall order it to cease and desist from
its unlawful conduct and take affirmative action necessary to
effectuate the policies of the Act.
We have found that the Respondent discharged Marion K.
Shiflett and Seybourn Pilkington and thereby, in violation of
Section 8 (a) (1) of the Act, interfered with, restrained, and
coerced its nonsupervisory employees in the exercise of their
rights guaranteed under Section7 of the Act. In order to restore
to the nonsupervisory employees their full freedom to exercise
these rights and thus to effectuate the policies of the Act, we
find it necessary to provide for the reinstatement with back
pay of Marion K. Shiflett and Seybourn Pilkington.10 Accord-
ingly, we shall order the Respondent to offer Marion K.
Shiflett and Pilkington full and immediate reinstatement to their
former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and to make
them whole for any loss of pay they may have suffered by
reason of their discharge by payment to each of them a sum
of money equivalent to the amount each normally would have
earned as wages from the dates of his respective discharge
to the date of the Intermediate Report and from the date of
this Decision and Order to the date of the offer of reinstate-
ment, less his net earnings during these periods. Loss of back
pay shall be computed in accordance with the formula pre-
scribed in F. W. Woolworth Company, 90 NLRB 289.
At the hearing Chester Magouyrk testified that he quit the
Respondent's employ on August 30, 1950, for reasons not
9 According to the uncontradicted testimony of Superintendent Murphy, some of the de-
fective yarn found its way into the winding room where, because of the similarity of the
chalk marks, it was mixed with some first quality yarn which made it necessary to discard
all such suspect yarn.
10 Inter-City Advertising Company, 89 NLRB 1103. The Trial Examiner asserts that it
would be reasonable to infer that if Shiflett and Pilkington were reinstated, they would
be more vigorous in their antiunion conduct. This does not necessarily follow as our Order
enjoins the Respondent and its agents from engaging in the unlawful conduct. Nor is there
any basis for the Trial Examiner's suggestion that allowance of back pay in the circumstances
of this case would be penal
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated in the record. Under the circumstances, we presume
that his resignation was voluntary and unrelated to any unfair
labor practice committed by the Respondent. Accordingly, we
shall not order his reinstatement. We shall also limit the
back pay due him for the period from the date when the Re-
spondent discriminatorily demoted' him to the date he termi-
nated his employment. Back pay shall be computed in accord-
ance with the formula prescribed in F. W. Woolworth Company,
supra.
We have agreed with the Trial Examiner that the Respondent
discriminatorily discharged James Edwin Shiflett on August
4, 1949. We also adopt the Trial Examiner's recommendation
that the Respondent be directed to offer James Edwin Shiflett
immediate and full reinstatement to his former or a sub-
stantially equivalent position, without prejudice to his seniority
or other rights and privileges and to make him whole for any
loss of pay he may have suffered by reason of such discrimina-
tion against him. At the hearing, however, it appeared that
James Edwin Shiflett was in the military service of the United
States. Accordingly, if at the time of the issuance of this
Decision and Order, James Edwin Shiflett is still in the mili-
tary service, we shall order the Respondent to notify him im-
mediately by registered mail directed to his last known
address, that said offer of reinstatement will continue for
90 days after his discharge from active military service. We
shall also order the Respondent to make him whole for any
loss of pay he may have suffered by reason of its discrimina-
tion against him, by payment to him of a sum of money equiva-
lent to the amount he normally would have earned as wages
during the periods (1) between the date of his discharge by
the Respondent and the date of his induction into the active
Armed Forces of the United States, less his net earnings
during the said period;' and (2) between the date 5 days after
his timely application for reinstatement and the date of Re-
spondent's offer of reinstatement, less his net earnings during
the said period. Back pay shall be computed in accordance with
the formula prescribed in F. W. Woolworth Company, supra."
ORDER
Upon the entire record in the case, and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Re-
spondent, Talladega Cotton Factory, Inc., Talladega, Alabama,
its officers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Textile Workers Union of
America, CIO, or any other labor organization of its employees,
i< The Trial Examiner in "The Remedy" section of the intermediate Report inadvertently
referred to July 13, 1949, as the date of Magouyrk's discriminatory discharge. This is the
date on which he was discriminatorily demoted.
12 The payment of this amount shall be made immediately without awaiting a final determi-
nation of the full amount of the award.
l3Aerovox Corporation, 102 NLRB 1526.
TALLADEGA COTTON FACTORY, INC. 301
by discharging or demoting any of its employees or in any
other manner discriminating in regard to the hire or tenure
of employment or any term or condition of employment.
(b) Interrogating its employees concerning their union affilia-
tions, activities, sympathies, or voting intentions , or threatening
employees with reprisal or economic loss because of their
union affiliations, activities, or sympathies.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-
organization , to form labor organizations , to join or assist
Textile Workers Union of America, CIO, or any other labor
organization , to bargain collectively through representatives
of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid
or protection as guaranteed in Section 7 of the Act, or to re-
frain from any and all such activities, except to the extent
that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employ-
ment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Offer James Edwin Shiflett immediate and full reinstate-
ment to his former or a substantially equivalent position,
without prejudice to his seniority or other rights or privileges
and make him whole for any loss of pay he may have suffered
as a result of his discriminatory discharge, in the manner
set forth in the section of this Decision and Order entitled
"The Remedy."
(b) Make whole Chester Magouyrk for any loss of pay he
may have suffered as a result of his discriminatory demotion,
in the manner set forth in the section of this Decision and
Order entitled "The Remedy."
(c) Offer Marion K. Shiflett and Seybourn Pilkington im-
mediate and full reinstatement to their former positions or to
substantially equivalent positions, without prejudice to their
seniority or other rights and privileges and make them whole
for any loss of pay they may have suffered as a result of their
discharge, in the manner set forth in the section of this Decision
and Order entitled "The Remedy."
(d) Upon request, make available to the Board or its agents
for examination and copying, all payroll records, social-secu-
rity payment records, timecards, personnel records and re-
ports, and all other records necessary to analyze the amounts
of back pay due under the terms of this Order.
(e) Post at its Talladega plant, Talladega, Alabama, copies,
of the notice attached hereto as an appendix.M Copies of such
notice, to be furnished by the Regional Director for the Tenth
Region , shall, after being duly signed by a representative of
the Respondent, be posted by it immediately upon receipt
thereof, and maintained by it for sixty (60) consecutive days
lIn the event that this Order is enforced by a decree of the United States Court of Appeals,
there shall be substituted for the words "Pursuantto a Decision and Order" the words "Pur-
suant to a Decree of the United States Court of Appeals, Enforcing an Order "
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for the Tenth Region, in
writing, within ten (10) days from the date of this Order, as
to what steps it has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed, insofar as it alleges that the Respondent
discharged Harold Shiflett in violation of Section 8 (a) (3) and
8 (a) (1) of the Act.
Chairman Farmer and Member Styles took no part in the
consideration of the above Decision and Order.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, we hereby notify our employees
that:
WE WILL NOT discourage membership in Textile
Workers Union of America, CIO, or in any other labor
organization of our,employees, by discharging or demoting
any of our employees, or in any other manner by discrim-
inating against them in regard to their hire or tenure of
employment, or any term or condition of employment.
WE WILL NOT interrogate our employees concerning
their union affiliations, activities, sympathies, or voting
intentions , or threaten our employees with reprisal or
economic loss because of their union affiliations, activities,
sympathies, or voting intentions.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
right to self-organization, to form labor organizations, to
join or assist Textile Workers Union of America, CIO, or
any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, as guaranteed
in Section 7 of the Act, or to refrain from any or all such
activities, except to the extent such right may be affected
by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
WE WILL offer to James Edwin Shiflett, Marion K.
Shiflett, and Seybourn Pilkington immediate and full rein-
statement to their former of substantially equivalent posi-
tions, without prejudice to their seniority or other rights
or privileges.
TALLADEGA COTTON FACTORY, INC. 303
WE WILL make James Edwin Shiflett and Chester
Magouyrk whole for any loss of pay suffered as a result
of the discrimination against them. We will also make
whole Marion K. Shiflett and Seybourn Pilkington for any
loss of pay suffered as a result of their discharge.
TALLADEGA COTTON FACTORY, INC.,
Employer.
Dated .... ............ By....................................................
(Representative ) (Title)
This notice must remain posted for 60 days from the date
hereof and must not be altered, defaced, or covered by any
other material.
Intermediate Report'
STATEMENT OF THE CASE
Upon a fourth amended charge filed on September 12, 1950, by Textile Workers Union of
America, CIO, herein called the Union, the General Counsel of the National Labor Relations
Board, herein called respectively the General Counsel and the Board, by the Regional
Director for the Tenth Region (Atlanta, Georgia), issued his complaint dated March 22,
1951, against Talladega Cotton Factory, Inc , at Talladega, Alabama, herein called Re-
spondent, alleging that Respondent had engaged in and was engaging in certain unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2
(6) and (7) of the National Labor Relations Act, as amended, Gl Stat. 136, herein called the
Act A copy of the charge, the complaint, and a notice of hearing were duly served upon
Respondent and the Union
With respect to the unfair labor practices the complaint alleged in substance that Re-
spondent: 2 On or about October 4, 1949, discharged James A. Shiflett and on or about
October 11, 1949 discharged Harold Shiflett and thereafter refused and failed to reinstate
them, because of their membership in and activities on behalf of the Union and because
they engaged in concerted activities with other employees for the purpose of collective
bargaining or other mutual aid or protection That the Respondent on or about July 13, 1949,
demoted Chester Magouyrk and thereafter refused and failed to reinstate him to his former
job, because of his membership in and activities on behalf of the Union and because he en-
gaged in concerted activities with other employees for the purpose of collective bargaining
or other mutual aid or protection Respondent discharged Overseer Marion K. Shiflett on
or about August 25, 1949, and Overseer Seybourn Pilkington on or about August 26, 1949,
and thereafter refused to reinstate them, because they did not engage in interrogation of
the type described herein below with sufficient frequency and effectiveness to satisfy the
Respondent [emphasis supplied], 3 because they did not comply to the Respondent's satis-
faction with the orders and directions described below, and because they did not by said
interrogation, threats, warnings, and other means cause and induce the employees of the
Respondent to vote against the Union in an election conducted by the Board on August 25,
1949 The Respondent discharged and failed and refused to reinstate said Shiflett and Pilking-
ton in order to discourage its employees from joining, remaining members of, or assisting
the Union, and from engaging in concerted activities for the purpose of collective bargaining
i The delay in the issuance of this intermediate Report was necessitated by the illness,
hospitalization, and convalesence of the Trial Examiner during the months of May, June,
July, August, September, and October, 1951
z Due to the numerous motions to dismiss various allegations and portions thereof of the
complaint made prior to and during the hearing herein the undersigned deems it necessary
to set forth in considerable detail the allegations in both the complaint and the answer
3At the close of the General Counsel's case-in-chief the undersigned granted a portion
of the Respondent's motion to strike, inter alia, paragraph 9 of the complaint to the extent
of the lines emphasized above.
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or other mutual aid or protection That the Respondent by and through its following named
officers, agents, and representatives, in or around the periods of time indicated opposite
their respective names, interrogated its employees concerning their union membership,
activities, and sympathies:
President Robert A. McMillan--June, July, August, 1949
Superintendent E. H. Murphy--June, July, August, 1949--"
Overseer Marion K. Shiflett--June, July, August, 1949
Overseer Seybourn Pilkington- -June, July, August, 1949
Overseer Nolan Steel--June, July, August, 1949
Foreman Herschel Wilcox--June, July, August, 1949
Foreman Wilson Robinson--August 1949
Overseer Jessie Quarles- -September 1950
The Respondent, by and through the above-named officers, agents, and representatives,
at one time or another during the months of June, July, and August, 1949, threatened and warned
its employees to refrain from assisting, becoming members of, or remaining members of
the Union, ordered and directed its supervisors to interrogate its employees concerning
their union membership and activities and to threaten and warn its employees concerning
their membership in and activities on behalf of the Union and report to the Respondent any
information obtained, by and through President Robert A. McMillan in or around July and
August 1949, asked employee Chester Magouyrk whether he placed union literature on
Respondent's bulletin boards, and ordered and required him to remove said literature from
the bulletin boards by and through President Robert A. McMillan in or around July or
August 1949, threatened and warned its employees that their union membership and activities
would cause the Talladega plant to close, by the acts described above where reference is
made to the discharge and failure to reinstate employees Harold Shiflett and James E.
Shiflett and the demotion of Chester Magouyrk and failure to reinstate him to his former
position, has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act by all of the acts described above, and by each of said acts,
has engaged in and is engaging in unfair labor practices within the meaning of Section 8
(a) (1) of the Act, and the acts of the Respondent described above constitute unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2
(6) and (7) of the Act
Respondent filed an answer on April 2, 1950, in which without waiving its right to file a
motion to dismiss4 it admitted certain jurisdictional facts, but denied the commission of
any unfair labor practices It admitted the discharge of Marion K. Shiflett and Seybourn
Pilkington, and for further answer alleged that the allegation in the complaint as regards
these employees was predicated on charges filed more than 6 months after the date of said
acts, and further that said named employees were not "employees" within the meaning of
the Act, as amended at the time of their discharges The answer further denied the allega-
tion in the complaint that President McMillan and Superintendent Murphy ordered and
directed its supervisory employees to engage in certain unfair labor practices, because
even if true they "constituted privileged communications between Respondent and its super-
visory employees "5
On April 9, 1951, the Respondent filed a "Motion to Dismiss" certain pertinent allegations
in the complaint with the Regional Director for the Tenth Region (Atlanta, Georgia), who in
turn referred it to the undersigned for ruling On or about April 12, 1951, the undersigned
denied said motion without prejudice to the Respondent to renew it at the opening of the
hearing in Talladega, Alabama, on April 16, 1951 Thereafter, on April 16, 1951, the Re-
spondent filed an amended answer in which in substance it reiterated and reemphasized its
position as stated in its original answer
Pursuant to notices, a hearing was held on April 16, 17, 18, 19, and 20, 1951, at Talladega,
Alabama, before the undersigned Trial Examiner duly appointed by the Chief Trial Examiner
The General Counsel and the Respondent were represented by counsel and the Union by a lay
representative. Full opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing upon the issues was afforded all parties At the opening of the
hearing both the General Counsel and the Respondent made numerous motions for the con-
4 See infra in re "Motion to Dismiss."
5 For disposal of the issues raised by the answer as to Marion K Shiflett and Seybourn
Pilkington and the allegation as regards "privileged communications" see infra as regards
"Motion to Dismiss "
TALLADEGA COTTON FACTORY, INC. 305
sideration of the undersigned Among the motions offered was a renewal of the Respondent's
"Motion to Dismiss" certain allegations of the complaint, particularly as regards Marion K.
Shiflett and Seybourn Pilkington, on the grounds that- (a) They were supervisory employees,
and hence not protected under the Act, and (b) the fourth amended charge wherein their names
first appear was filed more than 13 months after their discharge, and hence the Board is
without jurisdiction as to them because oftheproviso in Section 10 (b) of the Act, as amended.
The undersigned again denied the Respondent's motion in this regard without prejudice to
renewing it at the close of the hearing Counsel for the Respondent appealed the under-
signed ' s ruling to the Board in Washington, D. C. Thereafter during the course of the hearing
the undersigned's ruling was sustained by the Board to the extent that no final disposition
of said motion would be made until the Board had an opportunity to review the record as a
whole. Counsel for the Respondent again renewed his "Motion to Dismiss" the complaint
at the close of the General Counsel's case-in-chief. It was again denied without prejudice
to renewal thereof at the close of the hearing. Consequently counsel for the Respondent
renewed said "Motion to Dismiss" at the close of the hearing herein. Ruling thereon was
reserved It is hereby disposed of in the following manner Insofar as the Respondent's
contention as to the applicability of the proviso in Section 10 (b) of the Act to the allegations
in the complaint concerning Supervisors Marion K. Shiflett and Seybourn Pilkington, the
motion is hereby denied The undersigned is not mindful of the fact that neither the Union
nor the individuals involved saw fit to file charges with the Board until almost 13 months
after their discharge by the Respondent. He feels that the finding of the Board in Cathey
Lumber Company, 86 NLRB 157,6 is binding upon him in the determination of the issue in
this regard as raised by the "Motion to Dismiss," the pleadings, and supporting briefs
submitted by the parties. The undersigned has taken cognizance of the Respondent's con-
tention that the allegations in the complaint concerning the discharges of Shiflett and Pilk-
ington states a new cause of action and consequently is barred by the proviso to Section 10
(b) of the Act Since this contention is the crux of the Respondent's "Motion to Dismiss"
in this regard the undersigned directs particular attention to the following excerpt from
the Board's decision in the Cathey Lumber Company case, supra:
We are, therefore, of the opinion that the function of the charge continues unchanged
in the amended Act, that is, that when filed the charge sets in motion the Board's in-
vestigatory machinery in order to ascertain whether or not a complaint should issue.
As there is no requirement that the charge set forth each unfair labor practice alle-
gation to be litigated, the practice ofenlargingupon the charge to include in the complaint
allegations of unfair labor practices uncovered during the investigation likewise continues
unchanged under the amended Act--but with this important exception made necessary
by the purpose of the limitation period imposed by the proviso that the complaint shall
not include allegations of any unfair labor practices occurring more than 6 months prior
to the filing and service of the charge initiating the case It follows that we must reject
the construction of the proviso to Section 10 (b) advocated by the Respondent and the
General Counsel to the extent that it would also proscribe inclusion in the complaint of
allegations of unfair labor practices not specifically mentioned in a charge, although
the charge was filed with the Board and served upon the party charged within 6 months
after the commission of the particular alleged unfair labor practices [Emphasis sup-
plied ]
It must be remembered that the original charge herein was filed with the Regional Direc-
tor of the Tenth Region (Atlanta, Georgia), on August 24, 1949, and a copy thereof served on
the Respondent on August 26, 1949 This charge specifically sets forth inter alia that the
Respondent "has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) subsections (1) and (3)" of the Act Hence from that date forward the Re-
spondent was on notice that it was charged with violations of Section 8 (a) (1) of the Act,
which is exactly what the complaint alleges as regards Shiflett and Pilkington, and not
Section 8 (a) (3) as the Respondent's "Motion to Dismiss," answers, and briefs in support
would seem to indicate.
'Order enforced by the United States Court of Appeals for the Fifth Circuit. January 22,
1951, 185 F. 2d 1021. This order was later set aside by the Fifth Circuit after rehearing
on other grounds, 189 F. 2d428. See also Cusano v. N L. R. B., 190 F. 2d 898, 904 (C. A 3);
N. L. R. B. v. Westex Boot and Shoe Co., 190 F. 2d 12, 13-14 (C. A. 5); Kansas Milling Co.
v. N. L R. B., 185 F. 2d 413, 415 (C. A. 10); Stokely Foods, Inc. v. N. L. R. B , 193 F. 2d
736 (C. A. 5).
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to the second issue raised by the "Motion to Dismiss," which likewise concerns Super-
visors Shiflett and Pilkington, the Respondent contends that the complaint as to them should be
dismissed because they, as supervisory employees, are excluded from the protection of
the Act This issue is disposed of herein immediately below
The record clearly shows that Shiflett and Pilkington are supervisory employees. The
undersigned agrees with the Respondent that as such they are not "employees" within the
meaning of Section 2 (3) of the Act, and are not entitled to the usual remedy granted dis-
criminately discharged employees under Section 8 (a) (3) of the Act, but we are not faced
with that issue herein. What we have before us is in substance an allegation in the complaint
that by the discharge of the two supervisory employees the Respondent interfered with,
restrained, and coerced its employees in contravention of the rights guaranteed them in
Section 7 of the Act, and hence specifically violative of Section 8 (a) (1) of the Act For
these and other reasons which will be apparent hereinafter this branch of the "Motion to
Dismiss" as presented both prior to and during the hearing herein is likewise dismissed. 7
There yet remains one further branch of the Respondent's "Motion to Dismiss." That
the undersigned feels compelled to discuss at some length in his disposition of the matter,
and that is its contention that certain allegations in the complaint should be stricken because
they " . complain of conversations between Respondent's several supervisory employees
Such conversations constitute privileged communications between supervisors which, under
the terms of the Act and by virtue of the rulings of the Board itself and cannot and do not
constitute violations of the National Labor Relations Act, as amended." [Emphasis supplied ]
The undersigned does not agree that such conversations are privileged communications and
are neither admissible in evidence nor the basis for findings of fact thereon. The undersigned
agrees that such conversations are not in and of themselves violative of the Act But where
as here evidence is offered by both the General Counsel-and the Respondent and received
without objection of instructions given certain of the supervisory employees by the top hier-
archy of management as regards the attitude and conduct of the supervisory employees
towards the employees during the Union's organizational drive, and thereafter, then such
conversations become pertinent and material and any claim of privilege vanishes into thin
air To begin with, the claim of "privilege" is a limited one. Wigmore, inter alia,8 has the
following comment on the subject of "Privilege":
The claim of privilege can be made solely by the Witness himself, the privilege
(as the common phrasing runs) is purely personal to himself. Whether he chooses to
fulfill his duty without objection, or whether he prefers to exercise the exemption which
the law concedes to him, is a matter resting entirely between himself and the State (or
the Court as its representative). The party against whom the testimony is brought has
no rights to claim or to urge the exemption on his own behalf .
Wigmore also has the following comment to make in Section 2286.
In general, then, the mere fact that a communication was made in express confidence
or in the implied confidence of a confidential relation, does not create a privilege.
. . No pledge of privacy, nor the oath of secrecy, can avail against demand for the
truth in a court of justice
In addition to the above, all other branches of the "Motion to Dismiss" are hereby denied,
except as noted supra
At the opening of the hearing the General Counsel moved for "Judgment on the Pleadings,"
his grounds being that such a motion was in order, because the Respondent admitted in its
answer and amended answer that it had discharged the two supervisors discussed herein-
above. The motion was denied In his brief the General Counsel takes exception to the ruling
of the undersigned, and points out that in several cases other hearing examiners have exer-
cised the discretion vested in them, and summarily granted such motions. That no doubt is
true, but where as here a party pleads by way of answer in explanation of the acts complained
of and no objection is made to the answers as such on what apparently would have been tech-
nical grounds at the most, then there is no basis for granting such a motion Moreover such
a motion was patently premature by the very language of the pleadings when considered as a
7 A portion of the "Motion to Dismiss" is granted hereinafter on other grounds. See infra.
8 Wigmore on Evidence, Volume VIII, Section 2196, Third Edition.
TALLADEGA COTTON FACTORY, INC. 307
whole. The ruling stands.9 The issues raised by the pleadings will be disposed of hereinafter.
At the conclusion of the hearing the Trial Examiner granted a motion by the General Coun-
sel to conform the pleadings to the proof as regards minor matters such as names, dates,
and the like. The Respondent's motions to dismiss have been disposed of above. Branches
thereof which have not been discussed or disposed of hereinabove will be disposed of by the
recommendations hereinafter made. The parties waived oral argument before the Trial
Examiner. Briefs from the General Counsel and the Respondent have been received and
considered by the undersigned. 10
Upon the entire record in the case and from his observation of the witnesses, the under-
signed makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
At the hearing herein the parties stipulated that the Respondent is a corporation duly
organized under and existing by virtue of the laws of the State of Alabama maintaining its
principal office and place of business at Talladega, Alabama, herein called the Talladega
plant, where it is now and has been continually engaged in the manufacture and sale of
cotton yarn.
The Respondent in the course and conduct of its business operations at the Talladega
plant during the year ending October 31, 1950, which period is representative of all times
material herein, purchased raw materials consisting principally of raw cotton valued in
excess of 1 million dollars, approximately 50 percent of which was purchased outside the
State of Alabama and shipped in interstate commerce to the Talladega Cotton Factory.
During the same period the Respondent manufactured and sold cotton yarn valued in excess
of 1 million dollars, approximately 90 percent of which value was sold and shipped to cus-
tomers outside the State of Alabama.
Upon the foregoing and the stipulation of the parties the undersigned finds that the Re-
spondent herein, Talladega Cotton Factory, is engaged in commerce within the meaning
of Section 2 (6) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Textile Workers Union of America, affiliated with Congress of Industrial Organizations,
is a labor organization within the meaning of Section 2 (5) of the Act.
9 In passing however the undersigned has the following comment to make in this regard.
it is a matter of common knowledge that since the passage of the British "Victorian Acts"
as regards liberalization of pleadings, and the adoption of code pleading by most of the
States, that the trend has been towards more liberalization For example, the Board's
Rules and Regulations are most liberal. Assuming for the sake of argument that the motion
had been granted, or perhaps prior to the ruling, the Respondent had requested leave to
amend its answer. Then what? Under the Rules a party may amend at any time as long as
the requests are within the bounds of reason. Moreover, the granting or denial of such a
motion is within the discretion of the trier of facts. Again it also must be remembered
that it was the Respondent herein who was on trial. As the Sixth Circuit Court of Appeals,
speaking through Simons, Circuit Judge, said in a case where a somewhat analogous situation
arose:
.. The issue was not whether the discharged strikers had been guilty of misconduct but
whether the employer had committed an unfair labor practice. It was the employer who
was on trial and the employer alone, and whether he had discharged strikers for union ac-
tivity or for legitimate cause becomes a question that must be resolved by evidence, di-
rect or circumstantial, which it is our function to review.... Ohio Associated Telephone
Company v N. L R B., 192 F. 2d 664, November 29, 1951 (91 NLRB 932).
10 After the hearing was closed the General Counsel filed with the undersigned a motion
to correct the record in a minor detail. The motion is granted, and the record is so corrected
as outlined and set forth in said motion.
322615 0 - 54 - 21
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES ii
A. Interference, restraint , and coercion
In many respects the instant case of necessity requires reconsideration of the issues
involved in a prior case ,, Talladega Cotton Factory, Inc., 91 NLRB 470, Case No. 10-RC-
668, decided by the Board September 25, 1950. This is so because both the General Coun-
sel u and the Respondent not only referred to the transcript of the record in that case for
impeachment and other purposes during the course of the hearing, but agreed that the
entire record in the previous case be considered as evidence in the instant case if any
portion thereof was to be used. 13 Under the circumstances the undersigned admitted the
entire record in evidence. Admittedly this is rather unusual since ordinarily the under-
signed is only required to take judicial notice of Board Decisions and Orders insofar as
they pertain to final orders. He does not, and indeed does not have the power to, go behind
such orders and attack them either directly or collaterally.
In the considered opinion of the undersigned no proper understanding of the issues in-
volved herein is possible without commenting upon the events that preceded the filing of
the charges by the Union. To begin with Talladega, Alabama, is a small city of approxi-
mately 13,000 people. The Respondent's plant is located within the city limits. Across the
street from the factory is located what is colloquially known as the "village," which con-
sists of a group of houses owned by the Respondent and occupied by its employees. At all
times material herein the Respondent had in its employ approximately 159 persons,14 who
were classified as millhands, etc., and eligible to vote in a Board-conducted election on
August 25, 1949. At that time the Respondents operated three shifts in the twisting and
spinning department `under the supervision of Overseer Marion K. Shiflett. 15 The carding
room was under the direct supervision of Overseer Seybourn Pilkington. The overall super-
vision was in the hands of President Robert McMillan and Superintendent Hunter Murphy.
There were other supervisors of course, but they do not play a role in the events that we
are interested in comparable to that of the persons named above.
Sometime in the early part of 1949, the Respondent had a time-study survey made of its
manufacturing operations. The survey was made for the purpose of increasing the efficiency
of the various operations in the factory along the lines advocated by the Bedaux system.
As a result of the survey some changes were made in the Respondent's operations. Shortly
after the survey was completed there was a cut in wages, not only of the rank-and-file work-
ers but up to and including top management, such as Superintendent Hunter Murphy, whose
salary was also decreased. 16
Shortly before the wage cut was made the third shift was laid off. This along with the wage
cuts caused considerable unrest among the employees. At about this time the Union started
its organizational drive among the employees. The record does not disclose the precise
date that the organizers for the Union appeared, but it was sometime in the early part of
June 1949.
The first knowledge that the Respondent had of the Union's organizational activity was
when Irion Haywood, yard foreman, 17 informed Superintendent Murphy that while he was
up in the "village" he had "run into a union organizer" at Chester Magouyrk's house. 18
"Except where such matters as conflicts in the evidence and credibility of witnesses are
discussed hereinbelow the findings in this section of the Intermediate Report are made upon
evidence which is either undisputed or which is at variance only as to immaterial details,
or are made upon the preponderance of the reliable, probative, and substantial evidence in
the record considered as a whole.
12 The General Counsel objected to the admission in evidence of the transcript of the
record in Case No 10-RC-668 However, during the course of the hearing he referred to
it occasionally, but only to a minor extent.
13See the record as regards the General Counsel's use of the transcript of the record in
Case No. 10-RC-668 as the basis of his rebuttal as regards the credibility of the witnesses
who testified ui both the instant case and in the representation case
14From the "Tally of Ballots" in Case No. 10-RC-668.
is The first shift was from 6 a. in. to 2 p. m.; the second from 2 p. in. to 10 p m.; and the
third from 10 p. m. to 6 a. in
16 This finding is based upon the testimony of various witnesses, including that of Super-
intendent Murphy.
17 The word "foreman" was used loosely by Shiflett, because he also testified that Haywood
was not a supervisor.
i3 See infra relative to Chester Magouyrk.
TALLADEGA COTTON FACTORY, INC. 309
Shortly thereafter Superintendent Murphy called a meeting of all the supervisory employees
in his office. Present also were other employees who though not classified as supervisors
nevertheless were employed in a capacity that was close to management.
According to the testimony of Marion K. Shiflett, one of the Respondent's overseers at the
time the events herein occurred , the following were present at the meeting in Superintendent
Murphy's office: Irion Haywood, yard foreman; Bradley Goss, supply room clerk; Bud
Mitchell, mechanic; Nolan Steel, supervisor; Seybourn Pilkmgton, overseer; Murphy, and
himself. His account of what transpired at the meeting was that Murphy informed those
present that Haywood had run into a union organizer, up in the "village " and that the Union
had already secured about 30 signed application-for-membership cards. He also told those
present to look around and "hold it down " until he talked the matter over with President
McMillan, who was not in the plant at the time. A few days later Murphy called a second
meeting of the supervisors and the employees who were present at the previous meeting.
What transpired is best told in the testimony of Overseer Shiflett, which the undersigned
credits:
Q. Now, were you called back to the office on the following Monday, after you were
in there the first time on Saturday?
A. Yes , sir. He called us back in there Monday morning.
Q. Who called you back?
A. Mr. Murphy.
Q. Mr. Murphy?
A. Yes, sir.
Q. Who was present there in the office on Monday morning?
A. Well, I think the same crew--had all of us back in there; the same crew that we
had.
Q. Same ones that were in on Saturday?
A. Yes, sir.
Q. What did Mr. Murphy tell you at that time?
A. Well, he said, "Boys, we got aunionhere." He said, "All of you know what brought
it here. I know myself." He said, "George brought it here, but there ain't nothing we
can do about it, but stop it."
Q. Who is George?
A. George 'flicker.
Q. Who was he? What was his job?
A. He was General Engineer at the mill.
Q. General Engineer of the mill?
A. Yes, sir.
Q. Did he do time studies?
A. Yes, sir.
Q. Did Mr. Murphy give those present in his office, on that Monday, instructions?
A. Yes, sir. He told us all that he wanted us to go in the mill and talk to all the help
and get them out of the union- -that they wasn't going to have no union down at the mill.
He said he talked to Mr. McMillan over the phone, and he wanted us to go in there
and stop it just as quick as we could get it stopped.
Q. Did he relate the conversation that he had with Mr. McMillan over the phone?
A. Yes, sir. He told us something that Mr. McMillan told him, that--something about
us getting it stopped --that he had to be off that week, but--
The following Saturday the supervisors, along with the employees mentioned above, met
with President Robert McMillan . What transpired at that meeting is likewise best told in
the following excerpt from Overseer Shiflett's testimony which stands uncontradicted and
undenied in the record. 19
Q. All right. How did you happen to meet with Mr. McMillan?
A. He called us all in the office,--
Q. Who was--
A. --that Saturday noon.
Q. All right. Who was present in the office that Saturday?
19 Though President McMillan was present throughout the hearing herein, except for short
periods, he did not choose to testify on behalf of the Respondent and no explanation of his
silence was proffered by counsel or otherwise
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. All the overseers and Bud Mitchell and all them same fellows I just called a while
ago.
Q. Bud Mitchell--was Irion Haywood there?
A. Yes, sir.
Q. Was Bradley Goss there?
A. Yes, sir.
Q. What did Mr. McMillan say to the supervisors and the other employees assembled
in his office?
A. Well, I couldn't begin to tell you everything he did say, but he said lots.
He told us that we had a union started down there, and there wasn't anybody could
stop it but us overseers, and he wanted us to get out there and stop it.
Q. Did Mr. McMillan ask you about your employees?
A. Yes, sir. He asked me how many I had under me that was already joined, and I told
him I didn't know.
Q. Did Mr. McMillan at that conference mention money?
A. Yes, sir. He told us all to tell the help that if they wouldn't join the union they
would make more money by not joining than they would if they did join.
Q. Did Mr. McMillan mention the plant?
A. He said there wasn't any union there, and there wasn't going to be any union
there--that he wouldn't run under a union contract.
Shiflett further testified that he was called to the office on several occasions by either
President McMillan or Superintendent Murphy and queried about the union activities of the
employees under his supervision, such as who amongst them had joined the Union and were
attending union meetings. Both Murphy and McMillan on several occasions made it clear to
Shiflett that they were expecting him and the other supervisors to thwart the organizational
efforts of the employees. On at least two occasions Shiflett at Murphy's instructions went
to the employees under his supervision and queried them first as to whether or not they had
attended a union meeting the night before, and on the second occasion as to whether they
expected to attend a union meeting that was to be held on that evening. Each time he had
with him a pad and pencil and noted thereon the name of the employee and his answer to the
above questions. After completing his rounds amongst the employees he turned the informa-
tion over to Murphy. Shiflett contended at the hearing herein that he protested each time he
was requested by either Murphy or McMillan to interrogate the employees regarding their
union activities, and reluctantly carried out their instructions. He also testified that each
time he interrogated an employee about his union activities that he informed them that
Murphy desired the requested information.20
In the "Objections to Election" hearing, Case No. 10-RC-668, Shiflett's testimony as
regards the above incidents stands uncontradicted and undenied , since Murphy did not appear
as a witness in that proceeding. Moreover, there was testimony in that proceeding as well
as in the instant case that corroborates Shiflett's testimony in this regard. Murphy in his
testimony In the instant case denied that he instructed Shiflett to take the pad and pencil
around with him when he was interrogating employees about the two union meetings men-
tioned above. However, other testimony of Murphy in the instant case tends to negate his
specific denial in this regard. Excerpts from his testimony concerning this and other like
incidents are set forth below.
Q. You never personally questioned employees about the union?
A. I might have.
Q. Who did you question about the union?
A. I don't know--more than one.
Q. Now, any employees you questioned about the union--
A. I talked to more than one. I don't know who. I talked to maybe all of them. I don't
know.
Q. You did question them about the union?
A. No, I didn't say question them about it--I said talked to them about it.
Q. You asked how they felt about the union?
A. Not necessarily. No, sir.
Q. Well, can you give me what you did say to them about the union?
A. I don't know.
20 In the considered opinion of the undersigned this was doubly coercive because it could
not fail to impress the employees that top management was opposed to their union activities.
TALLADEGA COTTON FACTORY, INC. 311
Q. Now, you may have discussed finding out whether or not the employees were in the
union, is that correct? You may have asked the supervisors to find out that information
for you?
A. No, I didn't ask them to find out for me--information for me. I may have asked
them what they knew about it.
Q. As I understand, on direct examination, you told Mr. Constangy that maybe you
discussed union information, as to whether employees were going to meetings or not.
A. I may have.
Q. You discussed that with the supervisors?
A. I may have.
Q. You discussed with employees?
A. Possibly.
Q. Now, when did you first find out that Overseer Shiflett favored the union?
A. I kept getting reports.
Q. Who gave you the first report?
A. I don't recall.
TRIAL EXAMINER SHAW: Whom did you say9
THE WITNESS: I don't recall.
Q. As a matter of fact, you don't recall any specific reports you got about Overseer
Shiflett at this time.
A. I got so many I can't recall any specific instance. No. sir.
Q. Can you tell me the name of any employee that reported to you about Overseer
Shiflett?
A. I don't believe I can.
Shiflett's testimony as regards the above incident was corroborated by that of several
witnesses including Chester Magouyrk, E. C. Forbes, and James McKennon, a witness called
on behalf of the Respondent. Under the circumstances described above and upon the record
as a whole the undersigned credits Shiflett's testimony regarding the incidents described
above and discredits Murphy's specific denial of the role attributed to him by Shiflett in the
interrogation of employees concerning their attendance at union meetings. Accordingly the
undersigned finds that Overseer Marion K. Shiflett, under the behest and instructions of
Superintendent Murphy, interrogated the employees under his supervision in the mode and
manner described above. That such conduct on the part of the Respondent is in contravention
of the rights guaranteed employees in Section 7 of the Act, and constitutes interference,
restraint, and coercion and thus violative of Section 8 (a) (1) of the Act is so well settled
that citations of authorities for this finding by the undersigned would be mere surplusage.
Overseer Seybourn Pilkington, of whom more anon, is named in the complaint as having
participated in the same type of conduct on behalf of the Respondent as that attributed to
Marion K. Shiflett. His testimony in this regard in the instant case is along the same line
as that of Shiflett.
Pilkington worked for the Respondent for years. He went to work in its factory as a boy
of 14 years in 1919 and worked continuously, except for about a year and a half, until his
discharge on August 26, 1949. At that time he was overseer of the cardroom, in charge of
all three shifts. He worked from 6 p. m. to 6 a. m. He attended the meetings described
above by Shiflett in. Murphy's office. When he along with the other supervisors was in-
structed by Murphy to "break the Union up, but not to talk to over one person at a time"
so that "it would be just one person's word against the others," he protested and told
Murphy that he "would tell him anything he wanted to know, but I didn't want to get myself
tangled up with no C,I.O." As indicated above the testimony of Pilkmgton parallels that of
Shiflett, consequently the undersigned sees no necessity in needlessly encumbering this
report by repeating his testimony to any great extent herein. Suffice it to say however that
the undersigned credits Pilkington's testimony as regards the instructions given the super-
visors by Murphy as related by Shiflett above, particularly as regards the interrogation of
employees concerning their attendance at union meetings and the like. The undersigned also
finds that Pilkington's conduct in this regard was in contravention of the rights guaranteed
employees in Section 7 of the Act, and hence violative of Section 8 (a) (1) of the Act, for
which the Respondent is responsible and accountable.
In addition to the above-described acts of interference with, restraint, and coercion of
the Respondent's employees indulged in by Overseers Shiflett and Pilkington, the General
Counsel offered evidence of their participation in other acts of a similar nature. For ex-
ample, James Kimberly testified without contradiction that Pi kington came to him and
asked him how he intended to vote in the forthcoming Board election. Kimberly, in sub-
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stance, replied that he intended to vote as he pleased . On another occasion Overseer Shiflett
went to an employee by Vie name of Rita Burdett shortly before the Board election and asked
her if she had joined the Union , to which she replied that it was none of "his business." She
then asked Shiflett "who wants to know, " and that Shiflett replied "They do"; which the
undersigned finds to mean the Respondent herein . Burdett 's testimony in this regard stands
undenied and uncontradicted in the record . It is credited by the undersigned.
Olen Jarvis testified without contradiction that on occasion Shiflett came to him and asked
if he had attended union meetings and "if I belonged to the Union ." The undersigned credits
Jarvis' testimony in this regard . Pearl Gilliand testified in a like manner as regards being
questioned by Shiflett about her union affiliation . Since her testimony stands uncontradicted
and undenied in the record , it is also credited by the undersigned . James McKennon, a wit-
ness called on behalf of the Respondent , testified on cross-examination that Shiflett asked
him if he went to a certain union meeting and that Shiflett had a pad and pencil with him at
the time.
The General Counsel in further support of his contention that Overseers Shiflett and
Pilkington actively engaged in antiunion conduct on behalf of the Respondent offered the
testimony of one Crowe, who testified that Pilkington, in response to a question posed by
him as regards the Union's organizational campaign and what it was all about , said, "I
will tell you, Mr. Crowe , I just think there is a bunch of them fixing to get run off here
on account of it. " Pilkington did not deny the testimony of Crowe in this regard. Conse-
quently the undersigned credits Crowe's account of the above incident.
h. addition to the above acts of interference , restraint , and coercion indulged in by Over-
seers Shiflett and Pilkington during the period of the Union ' s organizational drive in June,
July, and August, 1949, President McMillan himself took a hand in intimidating the employees.
Among those queried by him were employees E. C Forbes, James Kimberly, Minnie Mann,
Olen Jarvis, Eva Reeves, and Carl Mitchell A typical example of President McMillan's
interrogation of employees is evidenced by the undenied , uncontradicted , and credible testi-
mony of E C Forbes, an excerpt of which is set forth below.
Q. All right. What else did Mr. McMillan say?
A. And he said something about he hadn 't went up on the house rent, and he paid us
bonuses . I asked him if it wasn 't customary to pay a bonus , and he said it wasn 't. I told
him most mills did . And he went ahead to say that he didn 't understand why they had
worked--some of the hands had worked there so long, and lately had got so dissatisfied.
And I told him that I felt like it was on account of this Bedaux man coming in there and
striking out our work.
TRIAL EXAMINER SHAW: Bedaux9
MR. STANFORD: Bedaux system--B-E-D-A-U-X
A. (Continuing) And on the heel of that they cut our wages . And I thought if it hadn't
been for that , there wouldn 't have been nothing of this.
Well, he said he couldn 't pay no more wages . He said he always paid as much as he
could- -he was operating in the red --and he wouldn 't operate under a union.
Q. Who said that?
A. Mr. McMillan.
Q. All right . What else did he say about operating under a union?
A. He said he wouldn 't operate under a union- -he didn't need a union man--or a
bunch of men to come and dictate to run his plant.
President McMillan 's interrogation of employee Olen Jarvis is another typical example
of the Respondent 's concern over the concerted activities of its employees . This likewise
is best evidenced by an excerpt from Jarvis ' uncontradicted , undenied, and credible testi-
mony , which is set forth below:
Q. Did Mr. McMillan start the conversation?
A. Yes, he asked me what --"What is this , I hear about the union? "
Q. What did you tell him?
A. I says , "I can answer that in two words."
Q. Yes.
A. He says , "What is that? " I says , "Labor trouble ."-- or "Unfair labor practice
inside the mill."
Q. By unfair labor practice , were you referring to working conditions?
A. Yes, sir. Possibly that is the way I stated --I don't know that it was.
Q. Did Mr. McMillan make a reply to your statement?
A. He asked me wasn't I satisfied with my job.
TALLADEGA COTTON FACTORY, INC. 313
Q. What did you say?
A. I said, "No, and I don't think anyone else, in the condition it is in now "
Q. What condition was the job in at that time?
A. 'Stretched out more than anyone could do.
Q. Was this after the time studies were made by George Tucker?
A. Yes, sir.
Q. All right What else did Mr McMillan say at that time?
A. Well, there was a good long conversation in all
Q. All right What else
A. I can't tell you exactly what was said on both sides, just off-hand.
Q. We understand that just relate the gist of the conversation- -the substance- -what
you remember at this time
A. Well, he asked me if I thought the union would help that any, and I told him no, I
didn't think so, or I didn't know so, but it looked like something was going to have to
help something
Q. All right.
A. And he says, "How do you expect the union to help you any?" I said, "Well, we
are to have somebody come in here to check the jobs and see whether it is more than a
man can do or not ." He said, "I will not allow a union man to come in my mill without
a warrant " And I said, "If it takes that, that will be done "
On another occasion President McMillan again interrogated Jarvis about a union meeting,
and requested that he disclose the name of the union organizer who was at the meeting
Jarvis refused to do so
The record also discloses that in addition to Overseers Shiflett and Pilkington, Super-
visors Nolan Steel and Herschel Wilcox also engaged in such antiunion conduct as interro-
gating the employees under their supervision as regards their union membership and ac-
tivities, and as to how they intended to vote in the Board election scheduled for August 25,
1949. The conduct of Supervisors Steel and Wilcox in this regard is evidenced by the un-
contradicted, undenied, and credible testimony of employees Ernest Trueman Hudgins,
Lyman H. Crowe, Minnie Mann, and Lelia Sexton.
The activities of President McMillan which have been described above are so clearly in
contravention of the rights guaranteed employees in Section 7 of the Act and violative of
Section 8 (a) (1) of the Act that further comment or citations of authority is unnecessary
Suffice it to say that the undersigned finds that the Respondent by such conduct violated
Section 8 (a) (1) of the Act
The undersigned also finds that the conduct of Supervisors Nolan Steel and Herschel
Wilcox, which has also been described above, constituted interference, restraint, and coercion
and is likewise violative of Section 8 (a) (1) of the Act.
Further evidence of the Respondent's animus towards the Union and the concerted activi-
ties of its employees is illustrated by a series of letters sent to the employees under the
signature of President McMillan They were considered by the Board in the representation
case referred to above, and were admitted in evidence without objection in the instant case.
Since they have been previously considered by the Board and are quite lengthy the undersigned
will not burden this report [or the stenographic section] with their contents. Suffice it to
say, however, that they clearly set forth the Respondent's antipathy towards the unionization
of its employees, though at best are merely argumentative in form and within the purview of
Section 8 (c) of the Act The undersigned finds that standing alone they were not violative
of Section 8 (a) (1) of the Act
It was in the light of the background described above that the Board-ordered election was
held on August 25, 1949 As indicated above the Union won the election by a close margin,
77 to 71 Shortly thereafter the Respondent filed "Objections to Conduct Affecting the Results
of Election "2i Insofar as the issues before the undersigned are concerned only one of the
objections lodged by the Respondent is worthy of note; and that is that Overseers Shiflett
and Pilkington without the Respondent's knowledge, against its will, and in violation of its
order to the contrary,22 coerced employees by threats of discharge and other reprisals unless
they joined the Union The Respondent further alleged that it had no knowledge of the activi-
ties of Shiflett and Pilkington until after the election, and that as a consequence the employees
2i The undersigned is cognizant of the fact that the issues involved in the representation
case are not before him, and that any comment he may make in this regard is purely for
background purposes.
22 The record discloses that the Respondent posted a notice to its employees on its bulletin
board in which it announced its neutrality during the Union's organizational drive.
3 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were denied a free opportunity to express their desires in the election, and that the conduct
described above affected the results of the election.
The Regional Director for the Tenth Region (Atlanta, Georgia), investigated the objections
and issued his report thereon on October 16, 1949 He found that the objections were without
merit, and recommended that the objections be overruled. As regards the preelection conduct
of Overseers Shiflett and Pilkington he had the following interesting comment to make:
The statements of these two supervisors on behalf of the Union were mild in comparison
with the systematic interrogation of employees which they performed at the direction
of the Employer It is, therefore, concluded that the Employer is not now in a position
to complain of the activity of these supervisors on behalf of the Umon. 23
As indicated above the Respondent filed exceptions to the Regional Director's ruling on
"Objections to the Conduct of Election" with the Board. The Board after due consideration
ordered that a formal hearing be held on the Respondent's objections The hearing was held
at Talladega, Alabama, on March 28, 1950 The Board in its Decision and Order 24 upheld the
ruling of the Regional Director, and certified the Union as the collective-bargaining repre-
sentative of the Respondent's employees In its decision the Board made inter alia the
following finding which in the considered opinion of the undersigned is pertinent to the issues
involved herein
2 With respect to the hearing officer's finding that the election was conducted in a
free atmosphere, the Employer's exceptions alleged principally that two of its super-
visors, Pilkington and Shiflett, coerced employees into voting for the Petitioner, and
that it did not know of this coercion before the election. However, the evidence shows,
as the hearing officer found, that the Employer did know before the election that Pilk-
ington and Shiflett were sympathetic toward the Petitioner and active on its behalf. The
Employer, admittedly having heard of Pilkington and Shiflett's prounion activities,
contends that it investigated by questioning the two supervisors, and believed their
denials. The record does not show that such an investigation was made It shows, as
the hearing officer found, that the Employer was informed of the conduct of Pilkington
and Shiflett and took no action to disavow it. Moreover, the record shows that the
Employer's position with respect to the Union was amply demonstrated to the employees
by the letters it sent them expressing its desire that they vote against the Union.
If the Employer had been genuinely concerned with the employees' opportunity to
express a free choice at the pending election, it could have taken appropriate steps to
dissipate the alleged coercive effects of the conduct of its supervisors. Instead of trying
to do so, however, the Employer chose to permit the election to be held and then, after
discovering that the employees desired representation by the Petitioner, sought to set
it aside. We do not consider it necessary to decide whether the statements and actions
of Pilkington and Shiflett were so coercive as, under other circumstances, to justify our
setting the election aside We are satisfied that the Employer, by reason of its knowledge
and acquiescence, as set forth above, may not now invalidate the election because of the
alleged misconduct of its own representatives. i
i See E. I. DuPont de Nemours and Company , 81 NLRB 238; The Goodyear Tire &
Rubber Company, 85 NLRB 135, Greater New York Broadcasting Company, 85 NLRB
414 Cf Robbins Tire & Rubber Co., Inc., 72 NLRB 157, and Parkchester Machine
Corporation , 72 NLRB 1419. It is the Employer ' s knowledge before the election which
distinguishes the present case from the Robbins and Parkchester cases
From all the above it clearly appears that the Respondent has a deep antipathy towards the
Union and the efforts of its employees to enjoy the rights guaranteed them by Section 7 of the
Act Its position in this regard is somewhat analogous to that found by the United States
Court of Appeals for the Fifth Circuit in N. L. R B. v Houston and North Texas Motor
Freight Lines, Inc., 193 F. 2d 394, decided December 28, 1951 There the Court speaking
through Hutcheson, Chief Judge, said:
. it clearly appears that the respondent was, and is, hostile to the union, was, and is,
vigorously opposed to its employees being organized, and that did what it could to
2SAs found supra, Overseers Shiflett and Pilkington denied that they had engaged in pro-
union conduct during the times material herein in their testimony in the instant case.
Y4 91 NLRB 470.
TALLADEGA COTTON FACTORY, INC. 315
prevent that organization It is, though, to hold that the record makes crystal
clear: that in this campaign to organize the union the employer was set against it,
and that every equivocal act that was done may be properly viewed in the light of re-
spondent's animus toward the effort to organize its men. N. L. R. B, v. Robbins
Tire & Rubber Co , 5 Cir., 161 F. 2d 798
There yet remain two allegations in the complaint to dispose of insofar as specific
violations of Section 8 (a) (1) of the Act is concerned They are as follows: The allegation
concerning the handbill incident and Chester Magouyrk. This will be disposed of in that
section of this report dealing with his alleged demotion from a doffer to a roving hand.
The second, and by far the most important allegation in the complaint, the alleged dis-
criminatory discharge of Overseers Shiflett and Pilkington _
B. The discharge of Overseers Marion K. Shiflett
and Seybourn Pilkington
By and large the most troublesome issue involved herein is that which revolves around the
discharge of Overseers Shiflett and Pilkington. In substance the General Counsel contends
that Shiflett and Pilkington were discharged because they did not interfere with, restrain,
and coerce the employees under their supervision in a manner that was satisfactory to the
Respondent. In other words they were discharged because they were unable to thwart the
employees in their organizational efforts and that as a result of their halfhearted and dilatory
tactics the Union won the Board-conducted election, and "got into the plant." The General
Counsel sums it up this way in his brief "The discharge of Shiflett was according to the
previous plan of the Respondent, which is undenied in the record, to discharge him if the
Union won the election The undenied testimony of Pilkington shows that he was discharged
because he 'let the boys join the Union ' Therefore, both discharges were because Pilkington
and Shiflett failed, in the opinion of the Respondent, to interfere with, intimidate, and coerce
its employees into voting against the Union and, therefore, necessarily had the effect of
interfering with its employees' rights under section 7 of the Act "
As the undersigned sees it, the General Counsel premises his contention on the theory
that the discharge of Overseers Shiflett and Pilkington had such an impact on the rank-and-
file employees that it amounted to interference with, restraint , and coercion of said em-
ployees in their attempt to exercise the rights guaranteed them by Section 7 of the Act,
and hence specifically violative of Section 8 (a) (1) of the Act
The Respondent in its answer and amended answer admits the discharges, and the reasons
stated by the General Counsel in the complaint for the discharges, and for further answer,
Respondent shows that the charge upon which the allegations in the complaint are based was
filed and served upon the Respondent more than 6 months after the date of said acts, and
further that said overseers were not "employees" withinthe meaning of the Act, as amended,
at the time of their respective discharges. 25
Much of the activities of Shiflett and Pilkington have been set forth above, and findings have
been made thereon They will not be repeated in this section of the report.
The record clearly shows that as the date of the forthcoming Board election approached,
the pressure on the Respondent's supervisors was increased. Conferences between top
management [that is President McMillan and Superintendent Murphy] and Overseers Shiflett
and Pilkington became daily affairs This, according to the undenied and credible testimony
of Shiflett, began 3 or 4 weeks before the election As the pressure on the overseers in-
creased, they increased their activities amongst the rank-and-file employees, by interro-
gating them about their organizational efforts and other union matters.
There is some evidence in the record, though not of such a substantial nature to base a
finding thereon, that the Respondent had a well organized system of espionage in operation
during the organizational drive This is evidenced by Overseer Shiflett's undenied, uncon-
tradicted, and credible testimony that sometime in the early part of July 1949 President
McMillan came to him and that the following conversation ensued.
Q. Now, did President McMillan question you about the union activities of your son,
Harold Shiflett 9
A. Yes, sir
Q. When was that ?
A. Well, he was on me twice about Harold First time was right after Harold joined
the union , he come in the mill,--
25 See infra for ruling on Respondent's "Motion to Dismiss."
3 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Do you recall about when that was 9
TRIAL EXAMINER SHAW' Let him finish his answer Go ahead
A. (Continuing) He come in the mill one morning and walked up to me and said, "Harold
joined the union last night " I said , " He did"" He said , " Yes." I said , " Well, I ain't
heard about it " He said, "Well, he did."
He asked me why I didn't talk to him and get him out of the union Said he was trying
to learn him to be a fixer there and he didn't want him in the union.
TRIAL EXAMINER SHAW This conversation was with whom?
Mr Stanford: President McMillan, sir
Q. All right, sir
A. So I told him I couldn't help it about Harold joining the union . He was a grown man
and 21 years old.
Q. Now, do you recall when that conversation took place?
A. Well, some time in the latter part of June or the first of July--it was next morning
after Harold joined the union -- I don ' t remember just what--
Shortly after McMillan's conversation with Overseer Shiflett [concerning the activities of
his son, Harold Shiflett], Superintendent Murphy approached him and asked him why he didn't
do something about Harold joining the Union. Overseer Shiflett told Murphy that he couldn't
do anything about it To which Murphy replied, "If he belonged to me I could do something. I
would run him off from home to get him out of the Union " Shiflett resented Murphy's state-
ment, and told Murphy " not to talk to me like that about my boy. I wasn't going to run
them away from home for nobody or nothing " Murphy replied, " if they were hisn [sic]
he would run hisn [sic] away from home tro [sic] get them out of the Union " Shiflett's testi-
mony in this regard stands uncontradicted and undenied in the record, and consequently is
credited by the undersigned. 26
About a week before the election, which was held on August 25, 1949, President McMillan
called Overseer Shiflett to his office and again told him in substance that he had to get the
employees out of the Union for nobody else could do it and if Shiflett couldn't do it he would
have to get another overseer. Shiflett told McMillan that he couldn't help it and that he was
trying to run the mill just like he always had McMillan then told him to go home and sleep
over the matter and let him know what he thought about it Shiflett's testimony in this regard
is also uncontradicted and undenied It is credited by the undersigned.
Shortly after the above conversation took place Murphy came to Shiflett and went over with
him in detail the matters he had previously discussed with McMillan. In the course of this
conversation Shiflett told Murphy that he couldn't keep the employees from joining the Union
Murphy then told Shiflett in substance that he had two choices, either get the employees to
withdraw from the Union or be discharged if the Union won the Board election on August 25,
1949 The testimony of Shiflett in this regard is credited by the undersigned
A few days before the election President McMillan again came to Shiflett and told him that
his son, Edwin, had been out with the union representative the night before and asked him what
he intended to do about it. Shiflett told him he couldn't do anything about it because his boys
were grown men and did as they pleased. For reasons which will be apparent hereinafter 27 the
undersigned sets forth below the above conversation as it appears in the record . Since it
likewise stands uncontradicted and undenied, Shiflett's testimony in this regard is credited by
the undersigned
Q. Did Mr Murphy mention Harold and Edwin Shiflett, your two sons 9
A. Yes, sir Him and Mr McMillan both talked to me about them boys every time they
met me for the last two weeks we ran down there.
Q. What did M r McMillan say to you about the boys
A. Well, on Tuesday evening, just before the election on Thursday, Mr. McMillan run
into me in the twister room door and and told me that the other boy of mine was out with
the union man last night That was Edwin Shiflett Asked me what I was going to do about
it, and I told him I couldn't do anything about it--them boys was grown., and they went
where they pleased and done as they pleased.
He said, "Well," he says, "they are going to get your job " And he said, "Harold will
lose his job " He said, "He can't run his job without you running it for him " He said,
"Also Olen Jarvis can't run his without you helping him." [Emphasis supplied ]
26 It is well "settled law that where a witness ' testimony is not contradicted , a trier has
no right to refuse to accept it." See N .L.R.B. v. Ray Smith Transport Co., 193 F. 2d 142
(C. A. 5), December 20, 1951, 29 LRRM 2202 at 2205; 89 NLRB 1045.
27 See infra in re the discharge of Harold Schiflett
TALLADEGA COTTON FACTORY, INC. 317
Q. Was Harold Shiflett, your son, buying a new 1947 Studebaker at that time's
A. Well, it wasn't exactly new, but it was practically new Yes, sir Mr McMillan asked
me if I had my place paid for, and I told him I didn't. He asked me if Harold had his car
paid for, and I told him he owed $ 600.00 on it. And he said, "Well, you are going to lose
your place and your job," and he said, "Harold is going to lose his car and his job."
Q. Well, now, at that time were you buying a house here in Talladega?
A. Yes, sir
Q. After you were discharged, did you lose that home9
A. No, sir. I didn't exactly lose it, but I had to sell it for about a thousand or fifteen
hundred dollars less than I would have, if I could have kept it
The Board election was held as scheduled on August 25, 1949 The Union received a majority
of the valid ballots cast therein. Shortly after the result of the election was announced, Shiflett
was called to Superintendent Murphy's office When he went in Murphy handed him his check
and said, "Bob, me and you is resigning partnership." Shiflett asked him what kind of papers
he intended to give him Murphy told him he didn't need any, and that he could get them over
at the employment office. He also told Shiflett that he "already knowed" why he was discharged
That was all that was said at that time. Shiflett went into the mill, picked up his papers and
the keys to the plant, and walked towards the door. He met Murphy on the steps, handed him
the keys, walked out of the plant and went home Since Shiflett's testimony in this regard is
likewise uncontradicted and undenied, it is credited by the undersigned.
Overseer Pilkington met the same fate as Overseer Shiflett the next day, August 26, 1949
The circumstances surrounding Pilkington's discharge are best told in his own words
I went back in the plant, and I don't reckon I was in there over ten or fifteen minutes
when Mr Murphy came out there with my time checks done wrote out
Q. What did he say to you ?
A. He said, "Come on. I want to talk to you in a minute " We went down in front of the
supply room, and went down in the supply room there, and he told me--he said, "I got
some sad news for you." I said, "What is that?" He said, "I am going to have to let you
go." I said, "Well, all right " He said, "Now, you know what this is for, don't you 9 " I
said, "No, I want to know before I leave, though " He says, "Well, it is just because you
let the boys join the union."
Q. What did you say to that, if anything?
A. I said, "Hunter, how do you think I could keep them boys out of the union? " He said,
.,You just didn't try hard enough."
Q. When he said you didn't try hard enough, did you say anything?
A. Well, I told him he was over me, and he couldn't keep them out.
Q. Were you given your checks at that time 9
A. Yes, sir
Q. Did you leave the mill?
A. Left the mill just as soon as I could get my tool boxes on the truck.
The only defense offered by the Respondent at the hearing herein to the discharge of Over-
seers Shiflett and Pilkington was that they wereproumon and helped the employees under their
supervision in their organization efforts.
Both Shiflett and Pilkington emphatically denied that they had engaged in prounion conduct
at any time material herein They both insisted in their testimony before the undersigned that
it was their personal desire to remain neutral during the Union's organizational drive, and
would have done so but for the insistence of McMillan and Murphy that they do everything
within their power to stop the unionization of the employees. That they carried out the Re-
spondent's requests in this regard is well established in the record. In fact the record is
replete with credible and substantial evidence that they engaged in a course of conduct above
and beyond That usually found in cases of this nature, and the undersigned has so found above.
In support of its contention that Shiflett and Pilkington engaged in a course of prounion
conduct during the period before the election, the Respondent produced several witnesses who
testified in this regard. A careful perusal of their testimony convinces the undersigned, and
he so finds, that even if it was true account of what transpired in the incidents cited by the
witnesses, and stood uncontradicted in the record, the statements attributed to the overseers
were not of a coercive nature, and in fact amounted to nothing more than expressions of opinion.
Even though they were supervisory employees they were entitled to voice their opinions as
long as they did not couple their statements with threats of reprisal or promises of benefits.
And such opinionated statements could be for or against one side or the other. Again, many
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the statements attributed to Shiflett and Pilkington weremade either in a jocular vein2s or
of such a nature that by no stretch of the imagination could they be found coercive in character
Let us now look at the testimony offered by the Respondent in support of its position that
Overseers Shiflett and Pilkington engaged in prounion activity during the course of the Union's
organizational drive
Among the witnesses called by the Respondent in this regard was one Elston Miller He
testified that along about July 1, 1949, he met Shiflett in a grocery store near the village and
that in the course of the conversation that ensued told him that he had been called back to work
and that Shiflett told him that hehad two boys in the Union and that heIMiller ] should "get with
the boys for the Union was a good thing " And that on another occasion Shiflett told him while
he was a guest in Shiflett's home "that the Union would make things easier."
Miller further testified that shortly after his conversations with Shiflett that he on his own
initiative voluntarily went to President McMillan and told him the conversations he had had
with Shiflett about the Umon . Miller gave no reason for his voluntary action in this regard
except that he thought President McMillan ought to know about it
Miller ' s demeanor while testifying was far from convincing . He impressed the undersigned
as an evasive , shifty , and "slippery" witness For example , on cross-examination he denied
that Wilson Robinson , a supervisor at the time , came to his home and told him that President
McMillan wanted to see him, and that Robinson then drove him to McMillan ' s office, where
McMillan asked him about his conversations with Shiflett When confronted with an affidavit
he had given an agent of the Board to the contrary , Miller contended that he was lying when
he gave the agent the affidavit Later on in his cross - examination he reversed his previous
testimony in this regard and testified that the statements made in the affidavit were true. Under
all the circumstances the undersigned finds that Miller ' s testimony in this regard was so
palpably false that no credence whatsoever can be given it. Consequently he credits Shiflett's
emphatic denial that he made such a statement to Miller.
George Phillips , a witness called by the Respondent , testified that sometime in July 1949
he asked Pilkington if the employees were trying to get a union and that Pilkington replied
that the employees had to do something; that he then told Pilkington that he had had experience
with a union before and that Pilkington told him that this was a different union and that the
Government was backing it According to Phillips he first told the Respondent about the above
incident on or about August 29,1949. Sincethis was 3 days after Pilkington ' s discharge it could
not have been a factor therein.
Pilkington denied that he had any Such conversation with Phillips Phillips did not impress
the undersigned as a reliable witness , primarily becausehis testimony as regards the circum-
stances surrounding his interview with McMillan about the above incident was successfully
impeached on cross -examination by the General Counsel Consequently the undersigned credits
Pilkington' s denial and finds that he did not make the statement attributed to him by Phillips.
According to Shiflett , McMillan in one of their conversations just before the election said
that at a recent union meeting Chester Magouyrk and Olen Jarvis both got up at a union meeting
and told those present that Shiflett was 100 percent for the Union Shiflett went to Magouyrk
and Jarvis and told them what McMillan had said Both denied making any such statement
Shiflett reported their denial to both McMillan and Murphy The Respondent did not touch on
this testimony of Shiflett at the hearing herein , either in its case - in-chief or on cross -exami-
nation In such a state of the record the undersigned credits Shiflett ' s account of the incident
and finds that no such statement was made by either Magouyrk or Jarvis
Another witness called by the Respondent , one Thomas Dison, testified that on one occasion
Pilkington asked him if he had gone to a certain union meeting . Dison said he hadn 't, and that
Pilkington then told him that that he should have because a lot of those who were present "were
saved ," which the undersigned finds to mean that they joined the Union. Pilkington emphatically
denied that he made any such statement toDison He did admit that he interrogated Dison as to
whether or not he intended to go to a certain union meeting , but that this interrogation was at
the specific request of Superintendent Murphy. This and other incidents of a like nature have
been described and fully discussed herein above; they will not be reiterated in this section of
the report.
Dison , like the witnesses Miller and Phillips, was evasive and contradicted himself on
cross-examination . He did not impress the undersigned as a credible witness. Under such
circumstances the undersigned credits Pilkington ' s denial of the incident referred to by Dison.
Upon all the foregoing and upon the record as a whole the undersigned finds that there is
no substantialevidence ( in fact it does not even amount to a scintilla ) in the record showing
that either Overseers Shiflett or Pilkington engaged in prounion conduct at the times material
herein . At best the evidence relied upon by the Respondent in this regard amounts to mere
28 See Ebco Manufacturing Co , 88 NLRB 983.
TALLADEGA COTTON FACTORY, INC. 319
rumor and gossip The reliable, probative, and substantial evidence is to the contrary and,
as the undersigned has found above, upon the evidence in the record, testimentary, written,
printed, and otherwise, in not only the instant case, but also in the representation case, the
entire record of which including the findings of the Board and of the Regional Director on the
investigation of the "Objections to the Conduct of the Election," all of which were admitted in
evidence in this proceeding, all show by a preponderance of the evidence that Overseers
Shiflett and Pilkington carried out to their utmost ability the instructions of President McMillan
and Superintendent Hunter Murphy to do everything in their power to break up the Union. Indeed
the undersigned has found above that both overseers engaged in many violations of Section
8 (a) (1) of the Act on behalf of the Respondent The undersigned is convinced, as was the
Regional Director in his report on "Objections to the Conduct of the Election,"29 that the
statements of the two overseers "was mild in comparison with the systematic interrogation
of employees which they performed at the direction of the Employer "
The undersigned is not unmindful of the finding of the Board in Case No. 10-RC-668, "that
Pilkington and Shiflett were sympathetic toward the Petitioner and active on its behalf." Their
testimony in the instant case is to the contrary. Both testified that they had not engaged in
prounion activity, and that they had carried out the Respondent's instructions to interfere with,
restrain, and coerce the employees under their supervision The undersigned has credited
their testimony in this case and has made findings thereon above. 30
Conclusion
As the undersigned sees it there is but one question before him in this section of his report,
and that is, did the discharge of Overseers Marion K. Shiflett and Seybourn Pilkington by the
Respondent on August 25 and 26, respectively, have such an impact on the rank-and-file
employees that its action in this regard constituted interference with, restraint, and coercion
of the nonsupervisory employees in their efforts to exercise the rights guaranteed them in
Section 7 of the Act, and therefore violative of Section 8 (a) (1) of the Act ? The answer to this
question is not an easy one in view of the facts found above and the contention of the parties
both in the pleadings and the briefs filed with the undersigned. Counsel for both the General
Counsel and the Respondent rely to some extent upon the Inter-City Advertising Company
case 31 as an authority for their respective positions, the General Counsel upon the Board's
Decision and Order in that case, and to some extent the decision of the United States Court of
Appeals for the Fourth Circuit, which dismissed the case insofar as the supervisory employee
involved was concerned on the grounds that the Board's decision was not supported by sub-
stantial evidence; on the other hand counsel for the Respondent relies on the decision of the
circuit court in support of his contention, that since both Shiflett and Pilkington were super-
visory employees they are beyond the pale of the Act as amended, and to a great extent the
undersigned relies not only on Inter-City Advertising for his ultimate findings herein, but on
the cases that preceded it, and partially upon the legislative history of the Act, that impelled
the Board to render the decision it did in that case
To begin with cases involving similar issues have been before the Board for several years.
At first the Board took the position that supervisory employees were not entitled to any pro-
tection under the Act Then along came the Soss Manufacturing Company case, 56 NLRB 348,
and a long line of cases involving rights of supervisory employees under the old Act In those
cases the Board held inter alia that under certain circumstances supervisory employees were
entitled to the protection of the Act, such as the right to bargain collectively in appropriate
units of supervisory employees, and then to full protection under the provisions of Section
8 (a) (3) of the Act. The Board's position was approved by the courts These cases and those
cited in the footnote below established beyond any question of doubt that supervisors were
employees, at
Then came a number of cases where the Board went a step further, that is cases which
dealt with the discharge of supervisory employees who were discharged by employers for
29 The investigation referred to was informal, as is the custom, and the findings of Re-
gional Directors in this type of case are made on the basis of a field examiner 's investi-
gation.
30 See the finding of the Regional Director in the "Objections to the Conduct of Election"
Case No. 10-RC-668, supra.
3i89 NLRB 127.
32 To cite a few of the cases, attention is called to the following: Packard Motor Car
Company, 61 NLRB 4, N.L.R.B v. Skinner and Kennedy Stationary Company Co., 113 F.
2d 667 (C. A. 8); N.L.R.B. v. Freuhauf Trailer Company, 30 U S 49, reviewing 85 F.
2d 391 (C. A. 6); American Potash and Chemical Corporation, 98 F. 2d 488 (C. A. 9).
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refusing to engage in or support employer's antiunion campaign against rank-and-file em-
ployees. One of the first cases of this kind to receive judicial approval was that of Richter's
Bakery, 46 NLRB 447, enfd. 140 F 2d 870 (C. A. 5) (1944) In that case the Board found that a
supervisor who had refused to participate in theemployer's campaign against the unionization
of the rank-and-file employees was discriminately discharged within the meaning of Section
8 (a) (3) of the Act
With the enactment of the Labor Management Relations Act in 1947, the status of supervisory
employees was changed By its provisions they were no longer "employees" and many hard-
won rights under the original Act were taken away from them, particularly the protection of
the Act as regards their right to bargain collectively with employers.
Since the enactment of the Labor Management Relations Act, the most important case in-
volving the discharge of supervisory employees to meet with judicial approval is perhaps the
Vail case, 33 which is cited by the Board as authority for its findings in Inter-City Advertis
Company In the Vail case the Board found that two supervisors w re discharged becau e
they refused to be a party to an unlawful scheme of the employer to list them as rank-and-file
employees on the payroll to be used ina coming Board election, presumably on the theory that
they would vote against the Union The United States Court of Appeals for the Seventh Circuit
speaking through Major, C. J., had this to say:
The remaining two discharges contested by respondent are those of Frank and Joseph
Mastik, supervisory employees in the standard staple department There is a conflict in
the evidence as to whether these employees were discharged or resigned. Frank Mastik
testified that he and his brother were discharged for failure to agree to a request by Vail
that they be classified as operators instead of foremen, for the purpose, as Vail put it, of
voting against the union The Board credited his testimony and it is sufficient to sustain
the Board's finding of a wrongful discharge, that is, a discharge for refusing an improper
classification in order to swell the anti-union vote The Board's finding that the Mastiks
were discharged in violation of Sec 8 (1) must be sustained.
Respondent challenges the finding that these discharges were also a violation of Sec
8 (3) of the Act Its contention is that the discharges did not encourage or discourage
membership in a labor organization The only basis for such contention is lack of knowl-
edge of such discharges on the part of other employees The Board inferred, however,
under the circumstances of the case that the other employees would have this knowledge
We cannot say that such an inference is unreasonable With such knowledge, the other
employees would have every good reason to fear the same treatment meted out to the
Mastiks if they showed a friendly attitude toward the union . The Board's conclusion that
there was an 8 (3) violation is proper But whether this be true or not, the Board 's order
of reinstatement and back pay as to the Mastiks would have to be sustained. We have
approved the Board's holding that the discharge of the Mastiks was a violation of Sec
8 (1) and the Board concluded that on that alone the Mastiks should be re-employed and
receive back pay in order to effectuate the policies of the Act This finding is not un-
reasonable and must be accepted
It is to be noted that in the Vail case the Board with judicial approval predicated its order
of reinstatement and back pay on the theory that the employer's conduct was violative of Sec-
tion 8 (1) of the Act, and that in order to effectuate the policies of the Act reinstatement with
back pay for the two supervisory employees was ordered.
In the Inter-City Advertising Company case, asimilar situation was involved. Here a super-
visor again refused to assist the employer in antiunion activities Among other things the
Board said
As the Trial Examiner found, the reason for Peeler's discharge was his failure to report
to the Respondent the union activities of the nonsupervisory employees under his direction
We believe it reasonable to infer that the Respondent's reason for requiring such reports
was to assist it in its campaign against the Union As we held, with judicial approval, in
the Vail case, the discharge of supervisors for refusing to aid in such a campaign unlaw-
fully interferes with, restrains, and coerces the nonsupervisory employees involved
Although the Vail case was decided before the amendment of the Act, in our opinion the
amendments have made no change in the law in this respect 34 [Emphasis supplied]
33See N.L.R.B v, Vail Mfg. Co., 158 F. 2d 664(C. A. 7), cert. denied 331 U. S. 835,
rehearing denied 332 U. S. 826, motion to amend and modify decree denied February 10,
1948 (C. A. 5), cert. denied 334 U S. 345, 61 NLRB 181.
34See infra as regards the decision of the United States Court of Appeals, Fourth Circuit,
in Inter-City Advertising Company.
TALLADEGA COTTON FACTORY, INC. 321
It is to be noted that in each of the above cases the supervisors involved were discharged
because they refused to engage in unlawful conduct prejudicial to the rank -and-file employees
in their efforts to exercise the rights guaranteed them by Section 7 of the Act In the Inter-
City Advertising Company case , Peeler not only refused to engage in the unlawful conduct
requested by the employer , but earlier had clearly identified himself as sympathetic to the
unionization of the rank - and-file employees Under such circumstances the undersigned is in
complete agreement with the Board that it is reasonable to infer that his discharge served
notice on the rank-and-file employees that they "would henceforth be spied upon and reported
to management as an integral part of the Respondent 's campaign to interfere with, restrain,
and coerce its employees in the exercise of their rights under the Act." Thus the respondent
interfered with , restrained , and coerced its nonsupervisory employees in violation of Section
8 (a) (1) of the Act. Z Nor does the undersigned disagree with the Board that the remedy of
reinstatement and back pay is a proper means of effectuating the policies of the Act, under
the facts found in the Inter -City Advertising Company case, and cases cited therein in support
of its position
The undersigned now comes to the determination of the issue raised herein by the discharge
of Overseers Shiflett and Pilkington Simply stated the issue levels down to this: Under the
facts found above did the Respondent interfere with , restrain , and coerce its employees in the
exercise of the rights guaranteed them in Section 7 of the Act, and hence violate Section
8 (a) (1) of the Act 9 In the opinion of the undersigned , and after considerable research, he
finds that the answer is No. The findings that the undersigned has made above and which he
will make below have been based on the facts as he has honestly found them and his conclusions
thereon arrived at after careful consideration of the decisions of the Board and the courts
involving analogous situations
To begin with the facts found herein are contrary to those that were before the Board in the
cases cited above Here , the supervisors Involved did not refuse to assist the employer in
its illegal campaign against the Union but actually participated in it . Moreover , witness after
witness called by the General Counsel testified credibly as to the illegal conduct of the two
supervisors , and from that testimony the undersigned has found a host of violations of Section
8 (a) (1) of the Act. Overseers Shiflett and Pilkington admitted the commission of each and
every violation of Section 8 (a) (1) attributed to them by the General Counsel in paragraphs
11 and 12 of his complaint Again, both Shiflett and Pilkington testified that they had never
engaged in any prounion activities during the time material herein, and the undersigned has so
found above As a matter of fact both Shiflett and Pilkington stressed their disinterestedness
in the union organizational campaign in their testimony before the undersigned . Particularly
Pilkington , as evidenced by his statement to Lyman H. Crowe which has been set forth above, 36
and in his testimony concerning the meetings with McMillan and Murphy at the time the union
organizational drive started
The undersigned is not unmindful of the fact that the Respondent admittedly discharged
Shiflett and Pilkington because it felt that they had assisted the Union in winning the election,
and had been unsuccessful in their efforts to keep the Union out of the plant Nor is he un-
mindful of the fact that they were under constant pressure from both President McMillan and
Superintendent Murphy to increase the tempo of their acts of interference , restraint, and
coercion . But the fact remains that they did carry out the demands of the Respondent to the
best of their ability.
Under the facts herein , where and how can the undersigned infer that their discharge had
such an impact on the nonsupervisory employees that it constitutes an invasion of the rights
guaranteed employees in Section ? of the Act' It is not settled law that the discharge of super-
visory employees because of their failure to "satisfy " employers in carrying out their illegal
demands is per se violative of the Act Nor is it true that the discharge of a supervisor who
is sympathetic to or has actively participated in the organization of rank-and - file employees
invariably has such an " impact" on said employees that an employer ' s conduct in such a
situation constitutes interference , restraint , and coercion , within the meaning of Section
8 (a) (1) of the Act. Witness the Board ' s Decision and Order in Panaderia Sucesion Alonso,
87 NLRB at pages 881 - 882. There the Board said.
The fact that the discharge of Guitierrez may have had the incidental effect of dis -
couraging the other bakery employees from exercising rights guaranteed them by Section
7 does not cause the Respondents' essentially privileged conduct to assume the character
of an unfair labor practice Whenever an unfair labor practice charge is filed with the
35 From a portion of the Intermediate Report which the Board by implication adopted in its
Decision and Order in Inter-City Advertising Company, 89 NLRB 1103.
36See the General Counsel 's brief at page 5.
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board based upon an employer's discharge of active union members, it can be argued
that such discharges restrain and discourage other employees from engaging in union
activities Nevertheless if the Board finds that such employees were discharged because
they had engaged in activities unprotected by the Act or were discharged for cause, the
Board invariably refuses to find that the employer committed an unfair labor practice
by reason of such discharges, notwithstanding the incidental effect upon other employees
For similar reasons in this case, because Guitierrez was discharged for engaging in
unprotected activities, we do not believe that the Respondents are guilty of violating the
Act, despite the effect of the discharge upon the other bakery employees.
The dissenting opinion of Chairman Herzog in the above case is interesting for the reason
that he clearly pointed out to the majority the theory of the General Counsel as regards the
application of Section 8 (a) (1) to the issues raised by the discharge of the supervisor involved
therein. The majority thought otherwise and decided the case on another theory. The under-
signed knows of no case in the Board's history that parallels the factual situation found here.
Here we have two supervisory employees who carried out the Respondent's instructions to
"keep the boys out of the Union," and then when they were discharged because they failed to
satisfy the Respondent in this regard, a charge is filed in their behalf with the Board on the
theory that their discharges interfered with, restrained, and coerced the nonsupervisory
employees in the exercise of the rights guaranteed them in Section 7 of the Act Putting it
another way it amounts to this; on the one hand their acts of interference, restraint, and
coercion are chargeable to the Respondent as violations of Section 8 (a) (1), and rightly so, on
the other hand their discharge for not working "hard enough" to satisfy the employer in their
efforts to thwart the Union is likewise violative of the same section of the Act As far as the
undersigned has been able to ascertain from Board decisions and orders, the Board has con-
sistently refused to go into what "actual" effect violations of Section 8 (a) (1) have on the em-
ployees who have been victims of such conduct For example, the Board "infers" that inter-
rogation of employees about their union affairs is per se violative of the Act, it does not go
into the question as to whether or not it in fact it had such an effect. This is as it should be not
only for practical purposes, but as an effective way of administering the Act and to promulgate
its policies Who can say how much impact the discharges had on the nonsupervisory em-
ployees, in the face of 3 months of activity on the part of the same supervisors on behalf of
the Respondent in its campaign againsttheUnion? The undersigned cannot answer this question
nor will he, attempt to do so Would it not be just as reasonable to infer, upon the facts found
herein, that if the two overseers were reinstated they would be more vigorous in their
antinunion activity than they had been before their discharge? Then how could their reinstate-
ment with back pay effectuate the policies of the Act? Suffice it to say however that upon the
facts found hereinabove, the undersigned is convinced and he so finds that the Respondent
did not violate Section 8 (a) (1) of the Act by discharging Overseers Marion K. Shiflett and
Seybourn Pilkington Consequently he recommends that this allegation in the complaint be
dismissed in its entirety
There of course remains in this as in all cases other interesting questions which the
undersigned deems it unnecessary to decide in view of his findings above. Such as, for example,
would not the recommendation of an order providing for back pay and reinstatement under the
facts found herein be penal in nature, even though clothed under the legal mantle of the phrase
"to effectuate the policies of the Act" 9 Again, since the amended charge naming Overseers
Shiflett and Pilkington for the first time was filed a year and almost a month after their dis-
charge, would not the decision of the United States Court of Appeals for the Third Circuit in
thePennwovensn case have some effect here in view of the proviso to Section 10 (b) of the Act?
Perhaps the decision of the United States Court of Appeals for the Ninth Circuit in the Globe
Wireless, Ltd. 38 case which like Pennwoven involved a jurisdictional question concerning the
application of the proviso to Section 10 (b) of the Act, insofar as "enlargement" of the original
charge is concerned, might well raise a debatable question in view of the facts found herein.
Having found as above the undersigned deems it unnecessary to comment at length on the
contention of the Respondent that the two discharged overseers were not "employees" within
the meaning of the Act, and consequently beyond the pale of the Act, and that for this reason the
complaint should also be dismissed as to them In the opinion of the undersigned he has
thoroughly discussed the Inter-City Advertising Company case hereinabove insofar as it was
necessary for the purpose of his ultimate findings as regards this allegation in the complaint.
However, he does feel that some comment is necessary in view of the decision of the United
sr N. L. R. B. v. Pennwoven, Inc., 194 F. 2d 521.
38 193 F. 2d 748.
TALLADEGA COTTON FACTORY, INC. 323
States Court of Appeals for the Fourth Circuit, an excerpt of which has been set forth herein-
above There, the court found that the Board's findings as regards the discharge of a super-
visor, Peeler, was not supported by substantial evidence, and refused to enforce the Board's
order of reinstatement and back pay for Peeler which the Board had found necessary in order
to effectuate the policies of the Act. In the same paragraph wherein it disposed of Peeler,
the court said "As he was a supervisory employee, he was not protected from discharge
because of union membership or activities, 29U. S. C. 152 (3)." In view of the court's findings
that the Board's Order as to Peeler was not supported by substantial evidence, and the petition
for its enforcement was denied solely on that ground, the undersigned considers this statement
by the court to be mere dictum, and as such no authority to find contrary to the basic reason-
ing of the Board as regards that portion of its order that related to its order of reinstatement
and back pay
For this reason the undersigned has rejected the Respondent's contention in this regard,
and feels bound by the Board's Decision and Order in both the Vail and Inter-City Advertising
Company cases, under a proper factual situation 39 until it has been rejected on its merits by
a United States Court of Appeals, or the Supreme Court of the United States.
C. The discharge of James Edwin ShiflettAO
James Edwin Shiflett41 started to work for the Respondent sometime around April 22, 1946.
He was employed as a learner twister. After 5 weeks as a learner4E he was given a job as a
twister on the second shift, 2 p. m to 11 p in He didn't like the hours because they didn't
permit him to go out in the evenings with young folks his own age, and asked for a transfer.
The Respondent was unable to place him on the first shift as he desired so he quit. In about 2
weeks the Respondent asked him to come back to work. He accepted their offer and was put
to work as a twister hand on the third shift. At this time his immediate superior was Super-
visor Ben Pope Thereafter he worked continuously for the Respondent either as a twister
hand or at odd jobs during slack periods up to the date of his discharge on October 4, 1949. It
is significant that during the slack periods he was not laid off by the Respondent as were
other employees, but was given employment at some other type of work. When the Respondent
restored the third shift around August 1, 1949, Shiflett was one of the few employees selected
for reemployment by the Respondent, and restored to his old job of twister hand.
Shiflett joined the Union sometime in August 1949 He was signed up by W. H. Price, or-
ganizer for the Union, who according to the record was in charge of the Union's organizational
drive at that time. Present when he signed his application-for-membership card was Chester
Magouyrk 43 Thereafter he became active on behalf of the Union and assisted in its organiza-
tional drive amongst the employees of the Respondent
Shortly after Edwin Shiflett joined the Union and about a week before the Board-ordered
election, President McMillan went to his father, Overseer Marion K. Shiflett, and told him
that Edwin had been out with a union man the night before. McMillan then asked Overseer
Shiflett what he was going to do about it, Overseer Shiflett told him that he couldn't do any-
thing about it, that his boys were grown men and that they went where they pleased and did as
they pleased 44 The record clearly shows that the Respondent was well aware of Edwin
Shiflett's activities on behalf of the Union
At the time of Shiflett's discharge he was operating twister frames No. 7 through No. 13.
Other twister operators on the same shift were Roy Thomas and Frank Griffin, who operated
frames Nos. 14 through 18 and Nos. 1 through 6, respectively. Thus Shiflett operated 7 frames,
Thomas 5, and Griffen 6. As far as the record shows all of the frames were the same as far
as the workload of the individual operator is concerned
The record discloses that after a time study was made by one George Tucker the workload
of the twister frame operators was increased. In Shiflett's case the increase was from 4
frames to 7
39 Which the undersigned has found above did not exist herein.
4oJames Edwin Shiflett is referred to in the record as Edwin Shiflett. The undersigned
refers to him in this section of the report as Shiflett and Edwin Shiflett where it is neces-
sary to distinguish him from his brother , Harold Shiflett
41 At the time of hearing herein Shiflett was a private in the Fifth Armored Division,
Camp Chaffoc, Arkansas.
42 Shiflett testified credibly that it was the Respondent 's policy to give the learners 6
weeks to learn to be a twister.
43 See infra in re demotion of Chester Magouyrk.
44As to the rest of this conversation between Overseer Shiflett and McMillan see that
section of this report dealing with the discharge of Harold Shiflett.
322615 0 - 54 - 22
3Z4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Shiflett on the night of September 30, 1949, on the shift that started at 10 p m.
he had trouble with the yarn running over the bottom of the bobbin on No 8 frame, and that
he reported this defect to Overseer Quarles and the fixer on the shift, George Phillips, who
worked on the frame for 15 or 20 minutes Just before quitting time at 6 a m. he had trouble
with No 13 frame where the bobbins were building up too big.
On the night of October 4, 1949, as Shiflett was preparing to go to work Overseer Pope came
to him and said that Superintendent Murphy had ordered his discharge for doing bad work, and
for him to go to the office and get his pay
The Respondent contends that Edwin Shiflett was discharged because he permitted the
bobbins on the frame under his supervision to become tangled, and thus caused the spoilage
of an unusual quantity of yarn It also contends that Shiflett's discharge was for cause and that
his union membership and activities had nothing to do with it. In support of its contention in
this regard it offered the testimony of Overseer Pope, Superintendent Murphy, and other
witnesses. The record is replete with testimony regarding this incident, boiled down it amounts
to this--that Shiflett spoiled an unusual amount of yarn which cost the Respondent a con-
siderable amount of money; that the amount of yarn spoiled by Shiflett was more than any
other employee had ever spoiled in its history, and that his negligence in this regard was the
sole reason for his discharge
On the other hand the General Counsel offered a number of witnesses who testified that it
was a common occurrence for yarn to run over on the frames, and that nobody had ever been
discharged for this reason For example, Roy Thomas, the twister tender who worked along
side of Shiflett on the same shift, testified that No 8 frame, which was the primary cause of
Shiflett's trouble, required the services of the fixer on the shift on several occasions. The
main source of the trouble was that the bobbins kept running over at the bottom. Thomas'
testimony in this regard is credited by the undersigned.
Overseer Marion K Shiflett testified without contradiction that it was a common occurrence
for the yarn to run over thetopand bottom of the bobbins in the summer of 1949. He attributed
this situation to the fact that the workload of the twister tenders had been increased to such
an extent that they couldn't get around fast enough to take time out and untangle the yarn This
seems to be a reasonable explanation in view of Edwin Shiflett's undenied testimony that his
workload was increased from tending 4 frames to 7, following the time-study survey made
by George Tucker.45
Roy Thomas further testified that shortly after Edwin Shiflett was discharged he asked
Overseer Pope why he [Shiflett] was discharged, and that Pope said, "For tangling yarn, but
if Shiflett had come to him and pulled it off, nothing would have happened." To which Thomas
replied in substance that if that was the reason then "they might as well fire all of us."
Thomas' testimony in this regard also stands uncontradicted and undenied in the record and
is credited by the undersigned
Overseer Shiflett further testified without contradiction that while he was in charge of
operations at the Respondent's plant to his knowledge no one had ever been discharged for
tangling bobbins.
Marion K Shiflett's testimony in this regard is indirectly corroborated by the undemed
testimony of Roy Thomas who testified that 2 months after Edwin Shiflett's discharge his
bobbins would run over and tangle up He told Supervisor Pope about it, who told him that was
because the frames were worn out. Pope did nothing about the situation. They continued to
run over to such an extent that he was forced to ask Pope to help him pull the yarn off. Over-
seer Quarles observed the situation and told Thomas he had to stop the bobbins from running
over They continued to run over, but Thomas was not discharged.
On another occasion when Thomas reported for work he found the frames he was in charge
of in bad condition This time he didn't report the situation to any of his supervisors but shut
the frames down and walked off the job. About 2 or 3 hours later he went to Supervisor Pope
and told him that he was quitting. Pope talked him out of it and together they straightened
things up and he went back to work Thomas was paid for the time he was away from his
frames It is significant that Thomas was not a member of the Union.
Pope admitted that the twister tenders made tangled yarn, but that Shiflett was the only one
ever discharged for that reason. The undersigned credits Pope's testimony in this regard.
Though there are many inconsistencies in Pope's testimony much of it is explainable by
the fact that the testimony he gave in the instant case was more than a year and a half after
events surrounding Edwin Shiflett's discharge By no means does the undersigned find that
45 The undersigned is not unmindful of the fact that Overseer Marion K. Shiflett is the
father of James Edwin Shiflett.
TALLADEGA COTTON FACTORY, INC. 325
he was a dishonest witness, in fact he credits a considerable portion of his testimony, 46 as
will be shown hereinafter.
Overseer Pope testified that sometime between 5:30 a. m. and 6 a. m., Superintendent
Murphy came through the mill and called his attention to the bobbins running over on one of
the frames operated by Edwin Shiflett Murphy told Pope to warn Shiflett not to let such a
situation arise in the future Pope complied with Murphy's request. On the next shift which
started on the night of October 3 at 10 p m and ended on the morning of October 4, 1949, at
6 a m., Murphy again came through the mill and found 5 boxes full of tangled bobbins. In-
vestigation showed that they were from the frames operated by Shiflett Pope described the
situation as "that it looked to me like practically the whole shift was run over at the top "
He further testified that in his estimation there were 3 doffs to the box, that a doff was about
120 bobbins or about 600 bobbins in all Which according to Edwin Shiflett's description of the
size of a bobbin to be about "20" in diameter when full, would at least to the undersigned
amount to a large quantity of yarn, weighing several hundred pounds Pope admitted that he
was unaware of this situation until Murphy called his attention to it, which was near the end
of shift, in fact about 10 minutes before the end of the shift Pope also admitted on cross-
examination that he only looked at the bobbins which were on top of the boxes. Pope further
testified that he didn't see or talk to George Phillips, the fixer, at any time during the last
shift that Shiflett worked.
In the considered opinion of the undersigned it is incredible that Pope, who was in charge
of the shift and in and around the twister frames all night long, should have failed to notice
the spoiled yarn attributed to the carelessness of Edwin Shiflett.
George Phillips, testifying in behalf of the Respondent in this regard, denied that he had
worked on any of the frames operated by Shiflett on the night of October 3 and 4, 1949. Phillips
further testified that he first saw the four boxes of tangled yarn at about 2 a. m. He also testi-
fied that he reported the incident to Pope His testimony in this regard was as follows:
Q. And did you make any report of what had happened on the Monday night incident?
A. Yes, sir. Reported to Mr Pope.
Pope on the other hand testified on direct examination that he hadn't seen or talked to
Phillips during the entire shift. His testimony in this regard was as follows:
Q. Did Mr Phillips work on the frames which were running 16/3 ply and 14/2 ply on
that night?
A. If he did, he didn't say anything to me about it I didn't see him.
As found above Phillips did not impress the undersigned as a forthright witness; Pope, in
the main, did so impress him Consequently the undersigned credits Pope's testimony in this
regard
Conclusion
From all the above, and upon the record as a whole, the undersigned is convinced and finds
that James Edwin Shiflett spoiled a considerable amount of yarn on the night of October 3 and
4, 1949 How much the record does not accurately disclose
According to Murphy, Pope, and Phillips there was a great amount spoiled All testified as
to the seriousness of Shiflett's neglect in permitting the bobbins to run over Yet, the record
clearly establishes the fact that Shiflett worked all night long without being cautioned or
warned by his immediate superior, Pope, that the yarn on the bobbins doffed from the frames
under his supervision was tangled and that a great quantity of yarn was being spoiled by his
carelessness This seems incredible, in view of the great ado made by the Respondent over
this incident. It appears to the undersigned after a careful review of the evidence offered by
the Respondent that it "doth protest too much" as regards the seriousness of Shiflett's
derelictions. This is especially true in view of the uncontradicted, undemed, and credible
testimony of Marion K. Shiflett, Roy Thomas, and the admissions of Pope that no other em-
ployee had ever been discharged for such an offense, and that the Respondent had permitted
and condoned such errors both before and after Shiflett's discharge
It is true, as the undersigned has found above, that Shiflett spoiled a considerable amount of
yarn It is also true that the Respondent had a right to discharge him for cause, or indeed for
no cause at all. But it is likewise true that an employee cannot be discharged for engaging in
46 See Universal Camera Company, 340 U. S. 474, decided February 26, 1951.
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union or concerted activities. Even though cause may exist, and the undersigned has found that
it did here, nevertheless the discharge must have been solely for that reason, and not moti-
vated by antiunion animus. Did such an animus exist here? The undersigned finds that it did.
The record is replete with evidence of the Respondent's antiunion animus. The record also
shows without contradiction that President McMillan and Superintendent Murphy both warned
Overseer Marion K Shiflett that his sons, Edwin and Harold Shiflett, would lose their jobs
unless they got out of the Union They did not choose to do so Under all the circumstances
the undersigned finds that James Edwin Shiflett was discharged because of his membership
in the Union and his activities on its behalf, and that the reasons advanced by the Respondent
for their action in this regard were not the real motive but sheer pretext. Consequently the
undersigned finds that the Respondent herein by discharging James Edwin Shiflett violated
Section 8 (a) (3) and (1) of the Act, and thereby interfered with, restrained, and coerced its
employees in the rights guaranteed them under Section 7 of the Act.
D. The discharge of Harold Shiflett 47
Harold Shiflett was first employed by the Respondent in the latter part of 1942. At that time
he was 16 years old. He continued to work for the Respondent off and on until he was discharged
on October 11, 1949. At that time he was employed as a fixer hand, which according to the
record was one of the highest paid jobs in the mill for the production employees. The most im-
portant part of their job was to keep the frames in repair, and to see that they were kept in
operation . His immediate supervisor at the time of his discharge was Supervisor Jesse
Quarles.
Shiflett was one of the first employees to join the Union, in June 1949. He attended all the
union meetings except two, and they were after his discharge.
Shortly after he joined the Union, his father, Marion K Shiflett, then overseer in charge of
all three shifts in the spinning and twisting departments, had a conversation with President
McMillan. In the course of the conversation McMillan told him that Harold had joined the
Union the night before, and for him[Marion K. Shiflett] to get him out of it, because he wanted
to make a fixer hand out of him. The next morning Superintendent Murphy and Overseer
Shiflett engaged in the following conversation:
0. And after that conversation with President McMillan, concerning your son, Harold
Shiflett, did Superintendent Murphy question you about Harold Shiflett?
A. Yes, sir He come in the engine room door early one morning. Me and Bradley
Goss were standing there,--
MR STANFORD: Speak up , Mr Shiflett.
TRIAL EXAMINER SHAW. Yes, you will have to speak louder Go ahead.
A. (Continuing) Me and Bradley Goss was standing there talking and Mr. Murphy says
to me, he says, "Why don't you do something about Harold being in the union?", and I
told him I couldn't do anything, and he said, "If he belonged to me I could do something "
He said, "I would run him off from home to get him out of the union." I told him not to
talk to me like that about my boy I wasn't going to run them away from home for nobody
or nothing
Q. Did Mr. Murphy make a reply to your statement that you wouldn't run your boys
away from home?
A. He said if they were hisn he would run hisn away from home tro get them out of the
union [Emphasis supplied. )
A few days later President McMillan again came to Overseer Shiflett, and talked to him
about his boys, Edwin and Harold, being members of the Union. Following is Marion K
Shiflett's undenied and uncontradicted testimony in this regard:
Q. Did Mr Murphy mention Harold and Edwin Shiflett, your two sons ?
A. Yes, sir. Him and Mr McMillan both talked to me about them boys every time they
met me for the last two weeks we ran down there.
Q. What did Mr McMillan say to you about the boys?
A. Well, on Tuesday evening, just before the election on Thursday, Mr. McMillan run
into me in the twister room door and and told me that the other boy of mine was out with
the union man last night. That was Edwin Shiflett. Asked me what I what I was going to
do about it, and I told him I couldn't do anything about it--them boys was grown , and they
went where they pleased and done as they pleased.
47 Herein referred to as Shiflett and Harold Shiflett.
TALLADEGA COTTON FACTORY, INC. 327
He said, "Well," he says, "they are going to get your job." And he said, "Harold will
lose his job." He said , "He can 't run his job without you running it for him ." He said,
"Also Olen Jarvis can't run his without you helping him." [Emphasis supplied.)
Q. Was Harold Shiflett , your son, buying a new 1947 Studebaker at that time?
A. Well , it wasn't exactly new, but it was practically new. Yes , sir. Mr. McMillan
asked me if I had my place paid for, and I told him I didn 't. He asked me if Harold had
his car paid for, and I told him he owed $ 600.00 on it. And he said, "Well, you are going
to lose your place and your job ," and he said , "Harold is going to lose his car and his
job."
Q. Well , now, at that time were you buying a home here in Talladega9
A. Yes, sir.
Q. After you were discharged , did you lose that home?
A. No, sir. I didn 't exactly lose it, but I had to sell it for about a thousand or fifteen
hundred dollars less than I would have , if I could have kept it.
The testimony of Overseer Marion K. Shiflett as regards the above conversations with
President McMillan and Superintendent Murphy stands undenied and uncontradicted in the
record. Bradley Goss, like Murphy, testified in the instant case and was not queried by
counsel for the Respondent as regards the conversation between Overseer Shiflett and Murphy,
who according to Shiflett was present atthe time . The undersigned credits Marion K. Shiflett's
testimony in this regard.
The Respondent contends that Harold Shiflett was discharged because he put the wrong gear
on one side of a spinning frame whichcaused it to produce a different size yarn from what the
frame was expected to produce . And for the further reason that after he had discovered his
mistake he tried to cover it up by changing the chalk markings on the yarn . It is also the
Respondent 's contention that Harold Shiflett was discharged for cause and that his union mem-
bership and activities had nothing to do with its action in this regard.
The undersigned has carefully examined the record herein and has reached the conclusion
that despite the voluminous testimony offered by both the General Counsel and the Respondent
as regards the circumstances surrounding the discharge of Harold Shiflett that it eventually
boils down to this : that Shiflett made a mistake on setting up No. 4 frame on one side, which
resulted in the production of bad yarn; and that in an effort to cover up his mistake he changed
the chalk markings on the yarn . The undersigned 's findings in this regard are predicated on
the credited testimony of numerous witnesses called by both the General Counsel and the
Respondent . He particularly relies on the testimony of Harold Shiflett, Overseer Quarles,
doffers James McKennon and L. D. Bryant, and Superintendent Murphy. Set forth below are
the facts as the undersigned finds them.
Superintendent Murphy ordered Overseer Quarles to put No . 4 frame on the production of a
No. 6 yarn. Quarles passed his instructions on to the fixer, Harold Shiflett, whose job it was
to change the gears on the frame, and set it up to produce No. 6 yarn on both sides . Shiflett
got the necessary gears out of the gearbox and changes the frame . When the frame was first
doffed it was found that on one side it was producing good No. 6 yarn with good full bobbins,
this side of the frame was doffed byL. D. Bryant. The other side of the frame , however, which
was doffed at the same time4a by James McKennon produced small bobbins with a different
size yarn . McKennon called this to the attention of Shiflett, who after looking the situation
over discovered that he had made an error in setting up the frame on one side . According to
Shiflett he had failed to put the proper gear in the gearbox on the side that McKennon doffed.
He found the proper gear on the floor near the frame . He then shut the frame down, and
changed the gear. Due to this error considerable yarn of the wrong size and twist was pro-
duced. Shiflett instructed McKennon to put the bobbins containing this yarn in a separate box.
The yarn as it came from both sides had been marked by the doffers with brown chalk as per
instructions . Shortly thereafter Shiflett took the bobbins containing the wrong size yarn and
changed the chalk markings thereon from brown to blue , the color allotted to No. 8 yarn.
Along about 2 p. in. on October 11, 1949, Superintendent Murphy went into the winder room
to check up on the No . 6 yarn that he had previously instructed Overseer Quarles to spin
earlier that morning . He asked Overseer Steel, who was then in charge of the winding room,
how he was coming along on the No.6 yarn. Steel told him that he hadn't put it into the winders
yet because he only had a "half-a-doff." In other words the bobbins from one side of a frame.
Murphy then investigated the matter to find out why there was only a half a doff in the winding
Doffers work as a team , each doffing a side at the same time When the doffing is
finished , the frame is started up again, and goes back into production . For more information
about the doffing process see infra , in re Chester Magouyrk.
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
room, when there should have been a full doff. He first inspected No. 4 frame and found that
it was running correctly Further investigation revealed Shiflett's error and the bobbins that
had been doffed were checked and found to contain bad yarn Since it was almost impossible
to tell which of the No 8 yarn was good or bad because of the re-marking by Shiflett the
entire doff was spot checked in the laboratory The tests revealed that some of the bobbins
were full of bad yarn with a low tensile strength. In other words good No. 8 yarn should have
a breaking strength of around 280 pounds, the yarn in question had astrengthof about 180
pounds. In order to keep the good No. 8 yarn from getting mixed up with the bad yarn, Murphy
ordered it over to the knitting room, thus causing a loss to the Respondent.
The upshot of the whole affair was that Murphy ordered Harold Shiflett discharged. When
Shiflett reported to work the next day Overseer Quarles gave him his check and told him he
was discharged because of the above-described incident
Conclusion
It has been well said that hard cases make bad law. Here is such a case. There isn't a
shadow of doubt as regards Shiflett's derelictions He admitted them on direct examination,
and was frank and honest about what occurred.
Standing alone, there is no doubt in the undersigned's mind that the Respondent was justified
in exercising its prerogative by discharging Harold Shiflett for his derelictions. On the other
hand, the undersigned is convinced-that Harold Shiflett at this time was working under a terrific
mental strain. A week to the day prior to the incident of his discharge his brother, James
Edwin Shiflett, had been discriminately discharged by the Respondent. Approximately 6 weeks
before that his father, Overseer Marion K, Shiflett, was discharged. One cannot disregard
these incidents, and it well may be that they were partially responsible for his mental lapse
in the gear incident. But, since the undersigned is not a psychiatrist he is in no position to
comment further in this regard.
Harold Shiflett had been warned in no uncertain terms through his father, by President
McMillan and Superintendent Murphy, that as a penalty for his union activity, he would lose
his job, his car, and perhaps his home. 49
Clearly if ever a man was marked for discriminatory discharge it was he. The threats of
McMillan and Murphy, which stand undenied and uncontradicted in the record, stick out like
a "sore thumb" no matter which way you turn. It is inescapable from the record that this man
was predestined for discharge, and the above derelictions gave the Respondent the opportunity
it was waiting for. There is no evidence in the record that Harold Shiflett had made mistakes
in the past or had been warned about his work in fact the evidence is to the contrary. From
all of the above the undersigned finds that Harold Shiflett was discharged by the Respondent
not because of the mistake he admittedly made but because he was a member of the Union,
and had engaged in activities on its behalf and continued to engage therein in the face of the
Respondent's warning to his father that he and his brother, Edwin, get out of the Union, a few
days before the Board election, or suffer the economic consequences described above. By
discriminatorily discharging Harold Shiflett because of his membership in the Union, and his
concerted activities with other employees of the Respondent for the purpose of collective
bargaining or other mutual aid or protection the Respondent thereby discriminated against
him in regard to his hire and tenure of employment, discouraged membership in the Union,
and interfered with, restrained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act and by such conduct violated Section 8 (a) (3) and (1) of the Act.
E. The demotion of Chester Magouyrk
Chester Magouyrk worked steadily for the Respondent for 25 or 30 years, except for a period
of about 2,1 years during which time he farmed and operated a school bus. While Magouyrk was
working for himself, the Respondent was short of good doffers and sent one of its employment
men out to seehim and asked him to return to work He agreed to do so, and went to the factory
and reported to Superintendent Murphy. Murphy called Overseer Shiflett in and said to him,
"Well, here he is. We have been needinga doffer. Now here is a doffer " He was immediately
put to doffing on the second shift, in the spinning department He worked on that shift for about
2 months. He was then transferred to the first shift in the spinning department. There he
doffed with James McKennon, up to the date of his demotion to roving hauler on July 13, 1949.
The record clearly shows that Chester Magouyrk was well thought of not only by the em-
ployees of the Respondent but also by the public in general . In addition to his duties with the
49See McMillan's warning to Overseer Shiflett above.
TALLADEGA COTTON FACTORY, INC. 329
Respondent, he was also a regularly ordained minister of the Gospel, having a regular charge,
the Second Baptist Church in Talladega, Alabama. It was he who first conceived the idea of
unionizing the Respondent 's employees His first contact with a member of the Union's or-
ganizing committee was sometime in May or June 1949. At that time he met a Mr. W. H. Price,
an organizer for the Union, who called upon him at his home in the "Village." The meeting
between Price and Magouyrk occurred shortly after the Respondent put in effect the wage cut
which had been described above The upshot of their meeting was that Magouyrk agreed to
help Price organize the employees of the Respondent for the Union. Price gave him 4 or 5
books containing application-for-membership cards . Thereafter, Magouyrk worked openly and
strenuously for the Union. He personally signed up approximately 75 of the Respondent's em-
ployees Throughout the union campaign his home in the "Village" was the rallying point for
those interested in the Union
It is also clear from the record that Magouyrk's union activities were known to the Re-
spondent from the time they started. As found above, Irion Heywood, a carpenter for the
Respondent, was up in the "Village" one day in the early part of June 1949, and met the
union organizer at Chester Magouyrk's home. Heywood immediately reported this incident
to Superintendent Murphy. The events that transpired thereafter insofar as the Union's or-
ganizational drive is concerned have been set forth in detail and will not be reiterated in this
section of the report Suffice it to say, however, that through some unknown channel the Re-
spondent was kept well informed not only of Chester Magouyrk's union activities, but also of
that of other employees as well.
Shortly after the Union's organizational drive got started, and Chester Magouyrk had been
identified with it, Overseer Marion K. Shiflett came to him and asked how he would like to be
transferred to laying uproving. Magouyrk told Shiflett, in substance, that he wasn't surprised
at this move on the part of the Respondent, and would not have been if he had been asked to
clean up the toilets The job Shiflett asked Magouyrk to take, that of laying up roving, was not
only a demotion but the pay was considerably less, 75 cents per hour compared to $1 01 per
hour as a doffer Moreover, it was a hard job and required him to do tasks other than laying
up roving (or roping as it is often referred to in the record). About a week following the above
conversation with Shiflett, the latter again came to Magouyrk and told him that "they was
ready to make the change" and thathewould start on laying up roving the next morning Prior
to his demotion , Magouyrk had never been criticized for his work by any member of manage-
ment, from Overseer Shiflett up to, and including, President McMillan, nor had there ever
been a complaint of any kind lodged against him personally So, after almost 30 years of service
with the Respondent, his doffing box was taken away from him and he was demoted to one of
the lowest paid jobs in the factory, so
The Respondent contends that Magouyrk was taken off his doffing job because of complaints
President McMillan and Superintendent Murphy had received from his doffing partner, James
McKennon, and Overseer Shiflett According to Superintendent Murphy, McKennon had com-
plained on several occasions that Magohyrk couldn't doff off fast enough on his side of the
frame, and thus caused McKennon to stand around and wait until Magouyrk finished his job.
This loss of time would cut in on McKennon' s rest periods, and more important result in a
loss of pay This was due to the fact that the doffers are paid on a piecework basis. Murphy
also testified that Overseer Shiflett had likewise complained to him about Magouyrk's work in
this regard. He further testified that after talking the matter over with Shiflett it was decided
to demote Chester.
According to the credible testimony of Overseer Marion K. Shiflett, Magouyrk was a good
doffer. In fact, he was kept on his doffing job when the factory was reduced from 3 shifts to
1 during the spring of 1949 In other words he was kept on as a doffer when other doffers were
laid off. Which indicates to the undersigned that at that time the Respondent considered him a
desirable employee. The elimination of the second and third shifts occurred shortly before the
Union's organizational drive started According to the record, the third shift was laid off
first, and the layoff of the second came a few weeks later
Overseer Shiflett further testified that after the Union' s organizational drive started, Presi-
dent McMillan came into the spinning and twisting rooms more often than he had in the past.
so According to Hawkins Mechanical Dictionary, roving is described as follows: (1) In
spinning, the operation of forming the rove, or slightly twisted thread, from the sliver, or
roll, of wool, by means of a machine for the purpose, called a roving frame or roving
machine; and (2) a roll of wool, or sliver, drawn out and slightly twisted; a rove Rove--a
roll of wool, or sliver, drawn out and slightly twisted preparatory to being further spun
into thread or yarn.
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On these trips McMillan would watch Magouyrk's work closely. 51 When Magouyrk would get
behind in his doffing, McMillan, on occasion , told Shiflett that he "ought to have got shed of
him before " According to Shiflett, who as overseer was in a position to judge Magouyrk's
work, he told McMillan that Chester had worked for the Respondent all his life and that he
hated to take him off his doff box He further testified that Magouyrk's work was satisfactory.
He admitted however that he would slow up on occasion. According to Shiflett, McKennon,
Magouyrk's doffing partner , never complained about Chester slowing up the doffing until after
the Union started its organizational drive.
Along about July 1, 1949, President McMillan told Overseer Shiflett that Chester was too
slow and that they would have totakehim off the doffing job, and requested him to ask Chester
if he would take a roving job. Shiflett carried out McMillan' s instructions and asked Chester
about the transfer He told Shiflett that he had been doffing all his life and "didn't want to give
his doff box up." Shiflett told McMillan about his conversation with Chester, and McMillan
told him to "pass it up for a few days," which they did 58
About 2 weeks after the above conversation between President McMillan and Overseer Shiflett,
they had another one concerning Chester Magouyrk. This is best told in Shiflett's own language:
Q. After Mr McMillan had asked you this first time to ask Mr. Magouyrk to take
another job, did he again approach you about taking Magouyrk off the doffer?
A. Yes, sir. He come through one evening late and told me to get Chester off that doff
box next morning I believe it was on Friday morning when we taken him off. Any way, he
told me to get him off that doff box And I said, "What if he quits?" He said, "Take him
off any how. If he quits, let him quit."
Q. How long was that after the first time that Mr McMillan talked to you?
A. It was something like two weeks
Q. Did you then speak to Chester Magouyrk about what President McMillan had told you?
A. No, sir, I didn't that day I waited until next morning. I just went and told him he would
have to go on the roving job
Q. What did Chester Magouyrk say when you told him--
A. He said he thought it was pretty "come-off' or something like that He had been
there doffing all his life, and taking his box away from him--
Shortly after Chester Magouyrkwas demoted to laying up roving, President McMillan called
him into his office Magouyrk's version of the conversation that ensued was as follows:
Q. When you got to Mr. McMillan's office, what happened?
A. Well, we had a long conversation
Q. All right. Just tell me what happened when you first went to his office
A. Well, he was mighty nice when I first weft in.
TRIAL EXAMINER SHAW: Go ahead--
A. (Continuing)- -offered me a cigar. I accepted the cigar.
51 See also the testimony of James McKennon in this regard A witness called on behalf of
the Respondent, he testified on direct examination that after the union drive started he saw
President McMillan in the plant 2 or 3 times more than before.
52 For a description of the doffing process the undersigned sets forth below an excerpt
from the testimony of Overseer Marion K. Shiflett in this regard:
TRIAL EXAMINER SHAW: Pardon me for interrupting. What do you mean-by the
"doff box"?
MR STANFORD: Yes, sir.
Q Explain the doff box, Mr. Shiflett.
A Well, a doff box is just a box with wheels on it, about three or three and a half feet
long one end of it is made to doff yarn off in, and the other is made to put empty bobbins
in, see9 Fill your doff box up in this end, and push it up to the frame and doff it off.
Q When the doffer is doffing, does he push a- -does he push that little doff box along
the frames 9
A. Yes, sir--with his knee. Pushes it along with his right knee.
Q And is he pulling the full bobbin off with one hand and dropping it in the box 9
A. Yes, sir. Takes it off with the left hand and puts it in the box, and puts in empties
with his right hand.
Q. Where does he get the empties ?
A. As I said, one end of the box is made for the bobbins, see--about this big (indi-
cating) on one end of the box. And the rest of it is made to put yarn in.
TALLADEGA COTTON FACTORY, INC. 331
Q. All right
A. I don' t believe I can remember word for word what was said , but maybe I can give
you--
TRIAL EXAMINER SHAW Give us the gist of it.
A. (Continuing)- - the detail of it . He began to show to me where I had been falling down
on the hanks--that is my job--the doffing job And he asked nl\e did I want to call Mr.
Tucker and go over it--talk it over . I told him I didn ' t think there was any use calling
him in--me and him I thought could understand that
And we talked on, and he said- -he or I one-- I don ' t know which one of us mentioned
it--but something was mentioned about did I think because I had joined the union that he
had taken me off my doff box
So the conversation went on , and we began talking about the character of the union repre-
sentatives -- that is Mr . Price and the other union men that had been helping organize.
He accused me of being paid by the union to get Talladega Cotton Factory organized
He accused the union representatives of bringing whiskey into the village . He asked me
did I know that those men would come to my home drinking , or probably bring whiskey in
my home . I told him I went to church , and I didn ' t allow such as that in my home
He asked me did I know that my wife was being unfriendly with women in the village
because of the union
He asked me did I know that Iliad caused women and children to suffer --probably cause
somebody to be killed because of the union
TRIAL EXAMINER SHAW: Have you established the date of the conversation, counsel?
MR STANFORD Yes, sir That was the week after July 13, 1949.
Q. Do you recall anything else that might have been said at that time?
A. I believe that is about the substance of the conversation --we talked so much, but
that carries about the substance
A few days after the above conversation took place , President McMillan on one of his now
frequent inspections of the mill saw some union leaflets posted on the bulletin boards. McMillan
called Magouyrk into his office and told him that since he was head of the Union he should pull
the leaflets off the boards. Magouyrk told him he did not put them there. To which McMillan
replied that he was responsible for them being on the board and to pull them off. Magouyrk did
as requested Shortly after this incident , McMillan again called Magouyrk ' s attention to another
batch of union leaflets that were scattered in the alley and some were lying on a workbench in
the spinning room. Magouyrk told McMillan that he did not put the leaflets in the plant but
that he would pick them up McMillan then closed the conversation with these parting words,
"You are going to cause this mill to shut down."
As indicated above, President McMillan did not choose to testify at the hearing herein.
Consequently Magouyrk ' s testimony as regards his conversations with McMillan are credited
by the undersigned and he finds that President McMillan engaged in the conduct and made the
statements attributed to him by Chester Magouyrk
James McKennon , Magouyrk ' s doffing partner , a witness called on behalf of the Respondent,
testified concerning his role in the demotion of Magouyrk He and Magouyrk doffed as a team
for about 3 years When he first doffed with Magouyrk he could hardly keep up with him, but
as the months went by, and he gained experience he not only kept up with Magouyrk but
actually became so adapt at doffing that he either had to wait for Magouyrk to doff his side of
the frame or go help him out, so they could start the frame up again and go on to doff another
Due to Magouyrk ' s slowness , they as a team couldn ' t make as many hank counts as they should
have , and hence he got less money per day, and did not get the proper amount of rest. To sum
up his testimony as regards Magouyrk ' s doffing , McKennon considered himself as about the
best doffer the Respondent had during his tenure of employment , he was faster , made few if
any mistakes , and all in all did a bang up job . Magouyrk on the other hand according to
McKennon was old , and was lust too slow for him The only concession he would make con-
cerning Magouyrk ' s work was that he was a careful doffer . McKennon couldn't remember
when he first complained to his superiors about Magouyrk's work. He did recall, however,
that he bypassed Overseer Shiflett, and went directly to Superintendent Murphy to lodge his
grievance against Magouyrk. 53 On cross - examination McKennon admitted that the workload
53 This seems rather odd to the undersigned in view of the testimony of other witnesses
in this proceeding who testified that such matters went through regular channels. While
this incident on its face may seem unimportant, nevertheless when it and other idiosyn-
crasies of McKennon are taken into consideration it has more than a little effect on the
undersigned 's ultimate findings as to his credibility as a witness.
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the shift that he and Magouyrk doffed together before, and at the time Magouyrk was
demoted to roving hauler was "just to [sic] much work ." He further admitted that because
of this situation a great many frames had to be shut down for the lack of a doffer He also
admitted that this had an effect on his pay, because they were paid on the hank count, hence
the fewer the hanks , the less the pay
McKennon admitted on cross-examination that Magouyrk ' s work was just as good at the
time he was transferred to laying up roving on July 13 , 1949, as it was at the time George
Tucker 54 made the time studies on the various jobs.
Rita Burdett , an employee of the Respondent for about 4 years before the hearing herein,
and a spinner in cotton mills for about 22 years , testified as to the comparative ability of
McKennon and Magouyrk , as doffers , based upon her observations of their work over a long
period of time Her opinion is set forth below:
Q. When you first were assigned to the first shift, who were the doffers in the spinning
department
A. James McKennon and Chester Magouyrk, I believe--the best I remember.
Q. Did you have any criticisms concerning their doffing?
A. No, sir
Q. From your observation , which one of those two was the best doffer9
MR. CONSTANGY: Mr Examiner I don't think this lady has been qualified as an expert.
MR STANFORD I think 21 years as a spinner --as a spinning hand--and the testimony
is clear that the doffers take care and doff their bobbins , and the work of the doffer
directly affects the pay of the spinners --I think that certainly qualifies her to testify.
TRIAL EXAMINER SHAW: I will overrule it
Q. From your observation of James McKennon and Chester Magouyrk when they are
doffing for you, which one was the best doffer?
A. I wouldn't say. They were both good.
0. Good"
A. I would say they were both probably equal. Probably one time one would beat one,
and sometimes the other would beat
Q. Have you ever seen Chester Magouyrk doff off before James McKennon?
A. At times. And I have seen James beat Chester . But I have seen Chester beat--get
off fewer bobbins than James
0. Now, which one did the best job in tying up ends?
A. Well, they was equally as good.
The undersigned was impressed by Burdett ' s testimony in his considered opinion her
comparison of the work of McKennon and Magouyrk was fair and impartial Moreover, she
also impressed the undersigned as an honest and forthright witness. Her testimony is fully
credited by the undersigned
Conclusion
From all the foregoing the undersigned finds that Chester Magouyrk was and had been for a
period of around 30 years a steady and conscientious employee and that he was a good doffer
and careful in his work Admittedly hewas older than McKennon , but after 30 years of service
any slowness he may have evidenced in his work was offset by the fact that he did a neat and
tidy job of tying up his ends The undersigned also finds that regardless of Magouyrk's age
the speed -up system with the added load it put on the doffers had more to do with any loss of
pay and rest McKennon may have sustained than any alleged derelictions in Magouyrk's work
McKennon himself under vigorous cross-examination was reluctantly forced to admit that
this situation was a major factor in his gripe about his take-home pay and loss of adequate
rest periods In other words in McKennon ' s opinion " it was to much work in the spinning
department for two doffers " The history of the doffing situation on the first shift after
Magouyrk ' s demotion bears this out
Having found as above the undersigned is convinced and he so finds that the demotion of
Chester Magouyrk was not occasioned by his derelictions as a doffer , but because of his
undisputed leadership in the Union's organizational drive. His identity with the Union is so
well established in the record that any additional comment in this regard by the undersigned
would be sheer nonsense The undersigned is not unmindful of the prerogatives of employers
54 Identified throughout the record as the person responsible for setting up the Bedaux
or speed-up system.
TALLADEGA COTTON FACTORY, INC. 333
to demote or promote employees. And they may do so with immunity before, after, or in the
midst of union or concerted activity amongst its employees. The only determent to their
exercise of this right is that the discharge, demotion, layoff, or what not must not be moti-
vated by reason of an employee's union or concerted activities with other employees for the
betterment of their conditions of employment and for the purpose of bargaining collectively
with their employers.
The facts found herein above convince the undersigned that Magouyrk was not demoted be-
cause of McKennon's gripes about his slow doffing and derelictions attributed to him by the
Respondent, but because he was the undisputed leader of the Union's organizational efforts.
The undersigned is convinced and heso finds that this was the motivating factor in Magouyrk's
demotion The undersigned is also convinced that absent his identity with the Union, he never
would have been demoted and as of today would still be in possession of his doff box, doffing
along in the mode and manner he had pursued for more than two decades for the Respondent
It must be remembered that President McMillan took Magouyrk to task in no uncertain
language as regards his union activities, on several occasions, particularly as regards the
handbill incidents, and once in a face-to-face conversation. These facts weigh heavily in the
undersigned's ultimate findings herein because Magouyrk's testimony in this regard stands
uncontradicted and undenied in the record. Therein lies the animus of the Respondent toward
the Union, and in particular Magouyrk's connection therewith.
The Board and the courts in innumerable decisions have consistently held that where anti-
union considerations precipitate a demotion (or a discharge), such demotion (or discharge) is
discriminatory and prohibited by the Act, even though valid reasons exist55 which would have
warranted this action.56
As found above the motivation for Magouyrk's demotion stems from his outstanding leader-
ship of the Union's organizational drive. The undersigned has also found above that the reasons
advanced by the Respondent for the demotion of Magouyrk are mere pretext. The record is
clear that Magouyrk refused to be intimidated into abandoning his union affiliation and activi-
ties in the face of demotion (or perhaps ultimate discharge) because he sincerely and honestly
believed that he and others similarly situated had the right to exercise the rights guaranteed
them by Section 7 of the Act. The undersigned is convinced and therefore finds that the Re-
spondent demoted Chester Magouyrk because of his membership in and outstanding open-and-
above-board activities on behalf of the Union in violation of Section 8 (a) (3) and (1) of the Act.
He also finds that the incidents cited above as regards the union pamphlets were likewise
violative of Section 8 (a) (1) of the Act, primarily on account of the setting and the ill-tempered
language used by McMillan in his conversation with Magouyrk at the time. The undersigned
sees no rhyme or reason to engage in a lengthy discussion of these incidents in this, an already
too voluminous, report.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring 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.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, it will be
recommended that the Respondent cease and desist therefrom and take certain affirmative
action which the undersigned finds necessary to effectuate the policies of the Act
It has been found that the Respondent discriminated in regard to the hire and tenure of em-
ployment of James Edwin Shiflett on October 4, 1949, and Harold Shiflett on October 11, 1949,
by discriminately discharging them. The undersigned therefore recommends that the Re-
spondent offer to James Edwin Shiflett and Harold Shiflett immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice to their seniority or
other rights and privileges and make James Edwin Shiflett and Harold Shiflett whole for any
loss of pay they may have suffered by reason of such discrimination by payment to them of a
sum of money equal to that which they would have earned as wages from the date of their
55 The record herein clearly does not bear out the Respondent's contention that such a
reason did exist as regards Magouyrk. The substantial evidence is to the contrary
56 To cite a few cases: Kansas Milling Co., 86 NLRB 925; Wallick and Schwalm Corp.,
95 NLRB 1262.
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminatory discharges , James Edwin Shiflett on October 4, 1949, and Harold Shiflett on
October 11, 1949, to the date of the offer of reinstatement less their net earnings during such
periods in accordance with the formula set out in F. W. Woolworth Company, 90 NLRB 289.
It has also been found that the Respondent on July 13, 1949, discriminated in regard to
the hire and tenure of employment of Chester Magouyrk by discriminately demoting him from
his position of doffer to roving hauler. The undersigned will, therefore, recommend that the
Respondent offer to Chester Magouyrk immediate and full reinstatement to his former or
substantially equivalent position , without prejudice to his seniority or other rights and priv-
ileges and make Chester Magouyrk whole for any loss of pay he may have suffered by reason
of such discrimination by payment to him of a sum of money equal to that which he would have
earned as wages fromJuly 13, 1949, the date of his discriminatory discharge, to the date of the
offer of reinstatement less his net earnings during such period in accordance with the formula
set out in F. W. Woolworth Company, 90 NLRB 289.
It has also been found that the Respondent by various acts interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed by the Act. It will therefore
be recommended that the Respondent cease and desist therefrom.
Upon a consideration of the record as a whole, the undersigned is convinced that the Re-
spondent ' s conduct in employing the many unfair labor practice tactics it did in order to pre-
vent the unionization of its employees indicates an attitude of opposition to the purposes of
the Act generally. In order, therefore, to make effective the interdependent guarantees of
Section 7 of the Act, thereby minimizing industrial strife which burdens and obstructs com-
merce, and thus effectuate the policies of the Act, it will be recommended that the Respondent
cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the
Act.
On the basis of the foregoing findings of fact and upon the entire record, the undersigned
makes the following:
CONCLUSIONS OF LAW
1. Textile Workers Union of America. CIO, is a labor organization within the meaning of
Section 2 (5) of the Act.
2. By discriminating in the hire and tenure of employment of James Edwin Shiflett and
Harold Shiflett by discharging them on October 4 and 11, 1949, respectively,. and of Chester
Magouyrk by demoting him on July 13, 1949, thereby discouraging membership in Textile
Workers Union of America, CIO, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining , and coercing employees in the exercise of the rights
guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
4. By discharging Overseers Marion K. Shiflett and Seybourn Pilkington the Respondent
did not violate Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
BOB MORGAN MOTOR COMPANY, INC. and INTERNATIONAL
ASSOCIATION OF MACHINISTS, AFL. Cases Nos. 16-CA-529
and 16-CA-546. July 22, 1953
DECISION AND ORDER
On May 29, 1953, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceedings, finding
that the Respondent had not engaged in the unfair labor practices
alleged in the complaint and recommending that the complaint
be dismissed in its entirety , as set forth in the copy of the
Intermediate Report attached hereto. Thereafter the General
106 NLRB No. 62.