Merrimack Manufacturing Co.

a III the Matter 'of MERRIMACEK MANUFACTURING COMPANY and LOCAL UNION No. 38, TEXTILE WORKERS UNION OF AMERICA, AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS Case No. 04,955I.-Decided April 24, 1943 DECISION AND ORDER On March 16, 1943, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had not engaged in unfair labor practices as alleged in the complaint herein, and recommending that the complaint be dismissed, as set forth in the copy of the Intermediate Report annexed hereto. There- after, the Union filed exceptions to the Intermediate Report and a brief in support of its exceptions. The Board has considered the rulings made by the Trial Examiner at the hearing and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the Union's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations made by the Trial Examiner. ORDER Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the complaint against the respondent, Merri- mack Manufacturing Company, Huntsville, Alabama, be, and it hereby is. dismissed. INTERMEDIATE REPORT 31r. Eugene M. Purver, for the Board. Mr. Borden Burr, of Birmingham, Alabama, for the respondent. STATEMENT OF THE CASE Upon a charge duly filed on August 3, 1942, by Local Union No. 38, Textile Workers Union of America, affiliated with the Congress of Industrial Organiza- tions, herein called the Union, the National Labor Relations Board, herein called 49 N. L. R. B., No 15. 89 I 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the'Board, by its Regional Director for the Tenth Region '(Atlanta, Georgia), issued its complaint dated February 5, 1943, against Merrimack Manufacturing Company, herein called the respondent. The complaint alleged that the re- spondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and ,(7-) of the .National Labor Relations Act, 49 Stat 449, herein called the Act. ,Copies of the complaint and notice of hearing were duly served upon the re- spondent and the Union , With respect to the unfair labor practices the complaint alleged in substance that the respondent : (1) on or about July 25, 1942, terminated the employment of Elbert G. Foster and refused to reinstate said employee because of his mem- bership in and activities on behalf of the Union; and (2) by these acts and through H McKelvie, the respondent's agent, by posting on or about July 10, 1941, notices to employees, ostensibly advising them of their rights under Section 7 of the Act, but in fact and intent, advising its employees of company rules cur- tailing, thwarting and suppressing organizational efforts of its employees, had interfered with, restrained and coerced and was interfering with, restraining and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act ' 'On or about February 14, 1943, the respondent filed an answer, admitting cer- tain allegations of the complaint as to the nature of the respondent's business but denying that the respondent had committed any unfeir labor practices Pursuant to notice, a hearing was held at Huntsville, Alabama, from February 18 to February 20, 1943, inclusive, before the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent wet e represented, by counsel • All of the parties participated in the hearing: Full opportunity to be heard, to examine and cross-examine witnesses, and to intro- duce evidence bearing on the issues was afforded all parties. During the Board's case; the Board's counsel moved 'to amend the title of the case and all pleadings, papers and stipulations so as to show the correct name of the Union. The motion was granted without objection. At the close .of the Board's case the Board's counsel moved to amend the complaint to conform to the proof as to names and dates The motion was granted without objection. At the close of the Board's case the respondent's counsel moved to dismiss the complaint. Ruling on thir9 motion was reserved and is disposed of as is indicated below. - - At the close of the hearing, counsel for the Board and the respondent presented oral argument on the record Counsel for the respondent also filed a brief but none of the other parties filed briefs although afforded the opportunity to do so. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FiNDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Merrimack Manufacturing Company is a Massachusetts corporation, having its principal office and place of business at Boston, Massachusetts. It is engaged in the manufacture, sale and. distribution of cotton cloth and 'owns mills at Lowell, - illassachusetts, and Huntsville, Alabama. This matter involves only the mills located at Huntsville At its Huntsville mills the-respondent uses cotton as the principal raw material, which is purchased by its Boston office through brokers. Approximately 75 percent of this raw material is imported from points outside the State of Ala- MERRIMACK MANUFACTURING COMPANY 91 bama and 90 percent of the machinery used in the Huntsville mills is obtained from points outside the State of Alabama. The approximate value of the respondent's purchases of said ,raw material for the year ending December 31, 1942, was $2,360,000, 90 percent of which was purchased for and shipped to its Huntsville mills from points outside the State of Alabama. The approximate amount of the respondent's product at the Huntsville mills for the year ending December 31, 1942, was 10,500,000 pounds, of which 90 percent was shipped and transported from the Huntsville mills to points outside the State of Alabama The above facts were stipulated to by the Respondent at the hearing. 'In addition, the respondent stipulated that it is engaged in interstate commerce within the meaning of the Act. II THE LA13OR ORGANIZA'i ]ON INVOLVED Local Union No. 38, Textile Workers Union of America, affiliated with the Con- gress of Industrial Organizations, is a labor oigamzation which admits to mein- bership employees of the respondent. III THE IINF-\IR LABOR PRACTICES A. The background The respondent has operated its Huntsville mills for a considerable number of years. The record is silent as to the exact length of time but it does appear that the respondent has operated them for at least 24 years. The Union was first organized in 1933 and at that time was affiliated with the American Federa- tion of Labor. At a later date and at sometime prior to October 2, 1938, the Union became affiliated with the Congress of Industrial Organizations. The Huntsville mills closed down on or about December 15, 1937, and started operations again about the first week in January of 1939. Prior to reopening, both the A. F. of L. and the C. I 0 had petitioned the Board to be certified as the exclusive bargaining agents of the respondent's employees.- An election was con- ducted by the Board on October 2, 1938 At the election 1078 employees-voted out of about 1200 eligible voters. Approximately 670 employees voted for the Union and approximately 400 votes for the A. F of L. The Board certified the Union on November 10, 1938. As a result of negotiations, between the Union and the respondent, a contract was entered into on December 3, 1938. The contract expired on December 31, 1939, and the Union and the respondent did not enter into a new contract informal meetings were held between representatives of the Union and the respondent concerning a new contract. At these meetings the respondent wanted to continue under the old contract and the Union wanted a new Conti act. The record indicates that the failure to negotiate a new contract was due mainly to the dissatisfaction of the Union over the selection of employees for re-employment when the mills commenced operations in January of 1939. The mills did not re-employ as many employees as had been employed by the respondent prior to the shut-down in December of 1037 This condition had been anticipated (in the negotiations for the contract and at the same time that the contract was entered into the Union and the respondent agreed upon an impartial referee who was given the authority to select employees for re-employment It appears that the Union became dissatisfied with this arrangement during 1939 and filed charges with the Board of discrimination against the Union members in the re-hiring. A hearing on this charge and another charge of violation of Section 8 (3) of the Act in the discharge of an employee, a brother of the Foster in the instant matter, 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was held at Huntsville in December, 1940. During this-hearing the charge of discriminatory selection of employees for rehiring was dropped. The Board rendered its decision on May 15; 1941, finding that the respondent had not violated Section 8 (3) of the Act in discharging Foster's brother but had violated Section 8 (1) of the Act. Compliance by the respondent with the order of the Board in this respect will be discussed hereinafter. B. The discharge of Foster Foster was employed by the respondent for about 18 years prior to his discharge and for about the last 10 years he was a weaver. He became a member of the Union when it was first organized in 1933 and has been vice -president for about the past 4 years. When the mills were re-opened in i 939, Foster was selected for work , as a weaver in no. 2 weave room on the first floor of the mill He remained on the same stand of looms in this weave room until he was transferred about September, 1941, to what is known as the "kitchen", which is a weave room off the back of the main or no 2 weave room In February -of 1042 Foster was transferred to no. 3 weave room where new looms had just been installed . He was discharged by the respondent on July 27, 1942, allegedly for inefficiency and for violation of a company rule prohibiting union activity on the respondent's time or property. During the period of time from January of 1939 until his discharge , Foster made a number of requests for transfer to different stands of looms . With one possible exception , his requests were not granted by the respondent The Board contends that the respondent discriminated against Foster in not granting these requests . With respect to requested transfers, the respondent 's policy was to grant vacant stands to the applicant whose efficiency was the highest and, if two applicants had the same efficiency rating, then to the applicant with seniority The evidence shows and the undersigned finds that the respondent consistently followed this policy in filling vacancys and (lid not discriminate against Foster in this respect. The evidence also conclusively shows that Foster 's - efficiency was, very low during this whole period of emnployment , especially during 1941 and 1942 While he was in no. 2 weave room, out of 20 to 24 weavers Foster occasionally had the lowest efficiency and his standing during the whole time that he was in this room was from 3 to 10 from the bottom . During the first 0 or S months of 1939 his efficiency was up to average , but it began to fall oft and was below average during 1940. When working in the "kitchen ", Foster's efficiency in comparison to that of all the weavers in no. 2 weave room and in the kitchen was the lowest for the period from September to November 22, and next to lowest for the period ending December 27. Efficiency records were not maintained by the respondent for no. 3 weave room until March 21, 1942, due to the fact that the looms were new and needed a breaking-in period During the period of time from March 23 through June 13, out of six comparable weavers in no 3 weave rocni Foster's efficiency was next to lowest and his efficiency was the lowest from the latter date until the date of his discharge The respondent's efficiency records, which were posted in the weave rooms at the end of each week and which wei e note challenged by the Board at the hearing as to accuracy , conclusively prove that Foster was one of the worst weavers in the respondent's employ over an extended period of time The undisputed testimony - of Foster 's supervisors , Mullins, weaving overseer, McCall, weaving overseer , and McKelvie , agent for the re- spondent's Huntsville mills, shows that they repeatedly called to Foster 's atten- tion his low efficiency ; that about February or March of . 1941 he was warned MERRIMACK MANUFACTURING COMPANY 93 by McKelvie and Mullins that he would be discharged if his efficiency did not improve, and that after these warnings Foster's etciency would pick up for a short time and4hen drop off again.' It is also the uncontradicted testimony of McKelvie that "several" other employees were discharged in 1941 and 1942 for inefficiency., As noted above, the respondent claims that Foster was also discharged for violation of the respondent's rule prohibiting union activity on the respondent's time or property. The 1939 contract with the Union, mentioned above, contained the following provision : .. . The Union specifically agrees that the Company is in business for the purpose of manufacturing cotton goods and said Union will not permit its officers or members to solicit membership or carry on the business of the Union on the Company's time or in the mill or mill yard of the Company. Foster knew of this provision in the contract. After the expiration of the contract, the respondent contends that the above provision in the contract continued to be a company rule and that this rule was generally understood by its employees. ' However, during the early part of 1941, Foster did solicit employees who were at work to become Union members Mullins learned of Foster's activities through complaints of employees and Foster admitted it when accused by Mullins. At that time Mullins advised Foster that such union activity was against the respondent's rules. On June 10, 1941, the respondent posted on its bulletin boards the two following notices 2 NOTICE TO EMPLOYEES OF MERRIMACK MANUFACTURING COMPANY You are Hereby Notified that: I This company will not interfere with, restrain, or coerce its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining and other mutual aid or protection as guaranteed is section 7 of National Labor Relations Act. This notice will remain posted for a period of sixty (60) Consecutive days from the date of posting Dated this 10th day of June, 1941 i\'IERRIMA CK MANUFACTURING COMPANY, By H. MCKELVIE. 1 Foster testified that he had had his low efficiency called to his attention at various times by the above and other supervisors. 3 McKelvie testified to the posting of the above notices and the undersigned credits his testimony in this respect Foster testified that "I think I saw a cease and desist order," but that he didn't see any other notices posted concealing labor organizations However, Phillips , the president of the Union , testified that he -saw a notice posted over a year prior to Foster 's discharge which ". . ,. was something or another about organizing in the plant or in the millyard." 94 DECISIONS OF ' NATIONAL LABOR RELATION' S BOARD NOTICE TO EMPLOYEES This company has stated its intent and purpose to comply fully with section 7 and all other provisions of the National Labor Relations Act. Every employee has the right to or not to join, any labor organization of his or her own choosing, and no supervisor of the company shall in any way interfere with, restrain, or coerce any of the employees in the exercise of their rights However, in line with our previous, established policy and agreement with our employees, all employees of the company are notified that they will not be permitted to solicit 'membership in any labor organization or carry on, employee organizational activities on the company's time, or in the mill, or millyard of the company. - MERRIMACK MANUL ACTURINO COMPANY, By H. McKLLi-m, Its Agent. McKelvie testified and the undersigned finds that these notices remained posted for at least two months. With respect to these notices, Burr, the respondent's counsel, testified and the undersigned finds that the first of the above notices was approved by Earle Shawe, Attorney for the Board in charge of securing the respondent's compliance to, the Board's order of. May 15, 1941; and that he discussed the second of the above notices with Shawe who stated that he saw no objection to posting it. In May of 1942, the Union began a campaign for members. Foster's home in the respondent's "village" or company houses became the Union headquarters for the campaign. Foster testified that he solicited employees for the Union while they were at work "oftener" than before. Through complaints of em- ployees, McCall learned of Poster's Union activities on the job, and Foster ad- mitted such activity when McCall discharged him. CONCLUSIONS The evidence conclusively shows that the respondent had justifiable cause in discharging Foster for inefficiency alone. However, the Board contends that the above mentioned notices prohibiting employee oiganizational activities con- stitutes interference and further that this mule prohibiting employee organza- tional activities on the respondent's'time or property '-was discriminatorily applied against the Union in that the respondent permitted solicitation of its employees for flowers, for insurance, for attendance at Sunday school, for war bonds and for various other purposes.' Board's counsel urged that these solicitations were employee organizational activities, and that the discharge of Foster for violation of the rule was, therefore, in violation of Section 8 (3) of the Act. It is clear that under normal circumstances, at least that part of the rule which prohibits the employees from soliciting or carrying on organizational activities on respondent's property on their own time would constitute inter- ference, restraint and coercion within the meaning of Section 8 (1). of the Act` However, since the Union agreed to a similar rule in 1939 and since the wording and posting of the above rule was in effect approved by an agent of-the Board pursuant to a settlement agreement, the undersigned is of the opinion and finds 8 The respondent admitted that it permitted these solicitations.',' 4 See Matter of William Davies Co., Inc, and United Packinghouse Workers of America, 37 N. L. R. B. 631 ; Mutter of United State 's Cartridge Company, et al, 47 N L R. B. 684. MERRIMACK MANUFACTURI\TG COMPANY - 95 that it would not effectuate the policies of the Act to find such notice to be viola- tive of the Act.' The undersigned further finds that under the circumstances here disclosed that part of the rule, per se, which prohibits employees from en- gaging in organizational activities on company time is not violative of the Act. Since it is clear that Foster solicited on company time and since the undersigned is of,the opinion based on the entire record that the rule was not discriminatorily applied to Foster, the undersigned finds that Foster was not discriminatorily discharged. Accordingly, the undersigned finds that the posting of the above notice on June 10, 1941, did not constitute interference and that the respondent did not dis- charge Foster because of his organizational activities in behalf of the Union but did discharge him for cause. Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. Local Union No. 38, Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, is a labor organization within the mean- ing of Section 2 (5) of the Act 2. The operations of the respondent occur in commerce within the meaning of Section 2 (6) of the Act. 3 The respondent has not interfered with, restrained, or coerced its employees within the meaning of Section 8 (1) of the Act. 4. Tne respondent by discharging Elbert G Foster on July 27, 1942 did not violate Section 8 (3) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that the complaint against the respondent, Merrimack Manufacturing Company, be dismissed. - As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 2-as amended, effective October 28, 1942-any party may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 or Article II of said Rules and Regulations, file with the Board, Shoreham Building, Wash- ington, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies. upon, together with the original and four copies of a brief in support thereof- As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of, the order transferring the case to the Board. - Date March 16,.1943. JOHN H. EADIE Trial Examiner. B By such finding however, the undersigned does not mean to indicate that the con- tinued existence of the above rule would not constitute a violation of the Act