Fickett-Brown Manufacturing Co., Inc.

In the Matter of FICHETT-BROWN MANUFACTURING COMPANY, INC.' and TEXTILE WORxERs UNION OF AMERICA, AFFILIATED- WITH THE+ CONGRESS OF INDUSTRIAL ORGANIZATIONS Case No. C-2680-Decided August X1,1943 DECISION AND ORDER On July 21, 1943, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding. finding that the respondent had not engaged in unfair labor practices within the meaning of Section 8 (3) of the Act. He also found that the respondent had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8 (1) of the Act and recommended that it cease and desist therefrom and take certain affirmative action as set out in the copy of the Intermediate Report attached hereto.la Thereafter, on August' 7, 1943, the respondent, the Union, and counsel for the Board entered into a stipulation in settlement of the case. The stipulation provides as follows : The duly designated Trial Examiner for the National Labor Relations Board (hereinafter called the Board) having, on July 21, 1943, issued his Intermediate Report in the above-entitled matter, and it being the desire of the parties to conclude all pro- ceedings before the Board in this case. IT IS HERESY STIPULATED AND AGREED by and between the parties hereto : (I) That the findings of fact and conclusions of law made by the Trial Examiner in his Intermediate Report shall be adopted by the Board as its findings of fact and conclusions of law. (II) That, without further or other procedure before the Board to which the parties may be entitled under the National 1 This is the correct name of the respondent , as amended by the motion to conform. la Neither the respondent nor the charging union filed exceptions to the Intermediate Report. 52 N. L. R. B., No. 7. 32 FICKETT-BROWN MANUFACTURING COMPANY 33 Labor Relations Act, or the Rules and Regulations of the Board, the Board shall, upon the basis of the entire record in the case and this stipulation, make said findings of fact, and enter the' following order : 2 (III) That the entire agreement is contained within the terms of this stipulation and that there is no verbal agreement of any kind which varies, alters or adds to this stipulation. (IV) That this stipulation is subject to the approval of the Board and shall become effective immediately upon the granting of such approval. The Board hereby approves the stipulation and makes it a part of the record in the case. Upon the basis of the above stipulation and the entire record in the case, including the Intermediate Report, the Board hereby adopts the findings of fact, conclusions of law, and recommendations made by the Trial Examiner. ORDER Upon the basis of the foregoing findings of fact and stipulation, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor,Relations Board hereby orders that the Fickett- Brown Manufacturing Company, Inc., its officers, agents, successors and assigns, shall : 1. Cease and desist from : (a) In any manner interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization to form, join or assist labor organizations, bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purpose, of collective bargaining or other mutual aid and protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act : (a) Post immediately in conspicuous places throughout its plants in Atlanta, Georgia, and maintain for a period of sixty (60) consecutive days from the date of the posting, notices to its employees stating that the respondent will not engage in conduct from which it is ordered that it cease and desist in paragraph 1 (a) of this Order; (b) Notify the Regional Director for the Tenth Region in writing within ten (10) days from the date of the receipt of this Order what steps the respondent has taken to comply herewith. 2 The order is omitted at this point and is set forth hereinafter. 34 DEICTSIOI S OF NATIONAL LABOR RELATIONS BOAfRD Upon the basis of the foregoing Findings of Fact and Stipulation, and pursuant to Section 10 (c) of the National Labor Relation Act, the National Labor Relations Board hereby orders that the complaint, in the above captioned matter, insofar as it alleges that the respondent has discriminated in regard to the hire and tenure of employment of Henry C. Campbell, be and the same is hereby dismissed. CHAIRMAN MILLIS took no part in the consideration of the above Decision and Order. FICKETT-BROWN MANUFACTURING COMPANY INTERMEDIATE REPORT 35 Mr. James T. Terming, for the Board. Mr. Ralph Williams and Mr. Ralph H . Phlirr, of Atlanta , Georgia, for the respondent. Mr. Garland R. Brook, of Atlanta, for the Union. STATEMENT OF THE CASE Upon an amended charge duly filed by Textile Workers Union of America affiliated with the Congress of Industrial Organizations , herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Tenth Region ( Atlanta, Georgia ), issued its complaint dated May 22, 1943, against Pickett-Brown Manufacturing Company , Inc.. herein called the respondent , alleging that the respondent had engaged in and was engaging in unfair labor practices 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. With respect to the unfair labor practices the complaint alleges in substance that the respondent : (1) on or about April 27, 1943, discharged Henry C. Campbell for the reason that he joined or assisted the Union or engaged in other concerted activities for the purpose of collective bargaining and other mutual aid or protection, thereby engaging in a violation of Section 8 (3), of the Act; (2) thro5ugh its officers, agents, employees , particulArly one J&s,Gibson , durin'A April, 1943, and thereafter, expressed disapproval of the Union , questioned its employees about their Union affiliation and activities , and urged and pur- suaded its employees to refrain from assisting or becoming members of the Union ; and (3) by the foregoing acts has discouraged membership in the Union and interfered with , restrained , and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act. Respondent in its answer dated June 3, 1943, admits certain facts concerning commerce but denies that it has engaged in any unfair labor practices. Pursuant to notice a hearing was held at Atlanta, Georgia on June 7, 8 and 9, 1943, before the undersigned Trial Examiner, James C. Batten, duly designated by ;the, Chief Trial Examiner . At the commencement of the hearing, the under- signed denied the Board 's motion that the respon'de'nt make , its answer, more definite and certain. At the close of the hearing the undersigned granted the Board's motion to conform the pleadings to the proof as to minor details. The Board, and the respondent were represented by counsel and the Union by its representative and participated in the hearing. All parties were afforded full opportunity to be heard, to examine, and cross-examine witnesses and to intro- duce evidence bearing on the issues . No oral arguments were made. At the conclusion of the hearing, there was however , an informal discussion concerning certain phases of the evidence . The undersigned requested that the Board and the respondent file briefs within 5 days from the close of the hearing. Briefs were filed by the Board and the respondent. 549875-44-vol. 52-4 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record thus made and from the undersigned's observation of the witnesses, the undersigned makes in addition to the above, the follow- ing: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, Fickett-Brown Manufacturing Company, Inc., is a Georgia corporation with its principal office located at Atlanta, Georgia, where it operates two plants, respectively, at Mayson and Turner Avenue, Northwest and 746 DeKalb Avenue Northeast, where it is engaged in the manufacture, sale, and distribution of mops, brooms, and yarn. Of the raw materials used by the respondent in its manufacturing processes, approximately 25 percent are shipped to the Atlanta plants through the channels of interstate commerce from points outside the State of Georgia. Of its finished products the respondent ships in excess of 70 percent through the channels of interstate commerce to points outside the State of Georgia. The unfair labor practices alleged herein have reference only to the plant located at Mayson and Turner Avenue Northwest. II. THE ORGANIZATION INVOLVED Textile Workers Union of America,, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership production and maintenance employees of the respondent. III. UNFAIR LABOR PRACTICES A. Interference, 7estraint, and coercion Prior to April 1943, there is no evidence to indicate an interest on the part of respondent's employees in any labor organization. The Union's activities in the mill started on Monday, April 26, when Campbell, a carder hand, reported for work on the afternoon shift, distributed application cards among the em- ployees and solicited several of them to join the Union. Shortly after work started on the shift an employee and son of Jess Gibson, the shift foreman,' gave his father one of the Union application cards that had been distributed by Campbell. Foreman Gibson, fully aware of the Union's campaign, at once became active in an effort to dissuade the employees from affiliation with that organization. He approached Melton, an employee in the picker room and after referring to the fact that Campbell was trying to organize the negroes into a union, stated that he would see the "man" [Haynie or Russell] tomorrow and have Campbell fired. Later, when Coley Ray, an employee on Gibson's shift, went to the supply room, he heard Gibson and Smith, an oiler, talking about the Union, and when Smith ' indicated that the Union was all right, Gib- son replied, that the Union was nothing but' a negro union. Gibson on this occasion also remarked that it was Campbell who was trying to organize a union. A few days later Coley went outside the mill to smoke. Gibson came I The parties stipulated that Haynie is the mill superintendent, responsible for the entire operations of the yarn mill , with authority to hire and discharge employees ; that Russell is the mill overseer or general foreman, with authority to hire and fire, who works on the first shift and supervises the second and third shifts; and that Jess Gibson is the second hand or shift foreman on the afternoon shift, with authority to recommend hiring and firing The undersigned finds that Haynie, Russell, and Gibson are supervisory employees with authority to hire, promote, discharge , discipline or otherwise effect changes in the status of employees or effectively recommend such action. FICKETT-BROWN MANTUFACTURING COMPANY 37 outside and told Coley that his brother Clyde agreed with him (Gibson), that it was better "not to have a union here." When Coley told his brother Clyde of Gibson's assertion, he denied ever having had such a conversation with Gib- son. In the course of the conversation with Gibson, Coley stated that the em- ployees ought to have more money and extra pay for holidays. Gibson replied, ,,we all could get together, all hands go up and take it up with Haynie and Mr. Brown (respondent's president), and we would get more money." On or about April 29, Adams, a spinning hand, and Foreman Gibson, while the former was outside the mill smoking, started talking about the Union. In the course of the conversation Gibson told Adams that there was no need for a union in the mill, if the employees wanted more money, they should see Haynie and he would give them increases. Gibson also remarked that the employees would have to work harder, if the Union succeeded in organizing the mill, and that he didn't like the C. I. O. On another occasion Gibson stopped at Adams' machine and asked, "How do you feel about this union." Adams replied, "Well, I think it would be a pretty good thing." Gibson then remarked, "I think everybody else has backed out but you and (another spinner) Grady." 2 From the foregoing facts it is patent that the respondent, through the state- ments of its supervisory employee Gibson, engaged in a course of conduct cal- culated to restrain the employees from affiliating with or retaining membership in the Union. It was the duty of respondent's agents to permit the employees to determine, without interference, whether they should organize for collective bargaining.' The undersigned finds that the respondent by the various acts set forth above, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act. B. Discharge of Henry C. Campbell Campbell first started working for the respondent approximately 2 years before his discharge on April 27, 1943. Over this entire period of employment he worked as a card hand, operating a set of five carding machines, which pre- pared cotton laps for spinning frames. In the latter part of February, 1943, Campbell left the respondent's mill to take a job with the Exposition Cotton Mills, located in Atlanta, Georgia Sometime in March, at the request of the respondent, Campbell left the Exposition Cotton Mills job and returned to the respondent's mill. Campbell's employment record with the respondent prior to his leaving in February was satisfactory, excet possibly for one or two minor complaints not at all unusual in a mill of this type. After his return to respon- dent's mill, Campbell worked on the second or afternoon shift, under the direct 2 These findings are predicated upon the credible testimony of Melton , Adams, and Coley Ray. Gibson denied generally the conversations as related by these witnesses . The cir- cumstances reflected in the record do not lend credence to Gibson 's denials. He admitted, however, participating in conversations with employees in which be referred to the organ- ization of the negro employees and expressed a preference for an A. F. L. Union. The mutually consistent testimony of Melton , Adams, and Coley Ray, in several details supported by Gibson's testimony justifies the undersigned in finding that Gibson made the statements attributed to him by Melton, Adams, and Coley Ray. ' Gibson, as a shift foreman directed and supervised the work of a group of employees, with authority to recommend changes in their status. His position was such that the employees had just cause to believe that he was acting for and on behalf of the respondent, International Assn of Machimsts v. N. L. R. B.,'311 U. S. 72, and it has been held that conduct such as above related is violative of Section 8 (1) of the Act. N. L. R. B V. Brad- ford Dyeing dawn, 310 U. S. 318; and H. J. Heinz Co . v. N. L. R. B., 311 U. S 514. More- over, the statements were made on the very day that the Union started its ' organizing campaign among responent 's employees. 38 DECTSIONS OF NATIONAL LABOR RELATIONS BOARD supervision of Foreman Gibson, and frequently he worked overtime, under Foreman Russell who had direct charge of the first or day shift . Campbell's work record during this period is hereinafter discussed . Campbell was the only employee who was active in attempting to organize the Union in the mill. On April 26, he brought the Union's application cards to the mill, distributed them to other employees, and solicited many employees to join. These activi- ties as heretofore found, at once came to the attention of his foreman. The complaint alleges that on April 27, 1943, the respondent discharged and thereafter failed or refused to reinstate Campbell for the reason that he joined or assisted the Union , while the respondent contends that Superintendent Haynie, relying upon an adverse report of Campbell's work from Foreman Gibson, issued instructions to General Foreman Russell to discharge Campbell before the Union's activities in the mill had come to his attention , thus Camp- bell's efforts in behalf of the Union could not possibly have been the motivating cause of the discharge . The Board asserts that the testimony offered by the respondent to support its contention is incredible when considered in connec- tion with the circumstances surrounding Campbell 's employment and discharge. The respondent sought to substantiate its contention that Campbell's discharge was not induced by his Union activities, principally through the testimony of Superintendent Haynie, General Foreman Russell and Shift Foreman Gibson. Thus, it appears that in order to determine whether or not Campbell was dis- charged on April 27, in violation of the Act, the undersigned must first , giving coiisfderatian to these conflicting contentions, and the-entire record, ascertain the trustworthiness of the testimony of Haynie , Russell and Gibson. The facts as testified to by Haynie and Russell, leading up to Campbell's dis- charge are hardly in dispute and may be briefly summarized as follows: For sometime prior to the discharge of Campbell on April 27 , production on the afternoon shift had materially declined , and in an effort to correct this situation Haynie had made several changes in the operation of that shift . On Thursday, April 22, Haynie asked Gibson, the shift foreman how the work was progressing. Gibson replied that Campbell 's work was unsatisfactory , because he did not keep all his machines operating, although there was nothing wrong with them and that when the machines were down , he would find Campbell sitting in the waste box. Gibson also reported that he had had some complaints about Campbell's machines turning out bad work . Haynie advised Gibsonthat he would talk with Russell about the mat'ter.' On ' Saturday,- April 24 , 'Haynie, after `sdme' dis- cussion of Campbell's work with Russell, stated that usually on Monday morning hands appeared at the mill looking for work, and if he, Haynie, could hire a hand that had some mill experience , Campbell would then be replaced . Haynie on Monday morning hired a hand and assigned him to the day shift under Russell's supervision , in order that the new hand's qualifications could be determined. Haynie, on Monday, concluded that the new hand was satisfactory . Not having had an opportunity on Monday to get Russell's opinion of the new hand's work, Haynie on Tuesday morning talked with Russell and they agreed that the new hand could operate the machines. Haynie then instructed Russell to discharge Campbell, when he reported for work in the afternoon . Shortly after Haynie had ordered Campbell's discharge , knowledge of Campbell's efforts in behalf of the Union, which had started the night before, came to his attention . Haynie then, feeling uneasy about the situation , went to President Brown. He told Brown that Campbell had-not,been,properly performing ,his work and that he had instructed Russell to discharge Campbell, before learning of Campbell 's efforts in FICKETT-BROWN MANUFACTURING COMPANY 39 behalf of the Union. Brown, after Haynie had stated that he did not want it to appear that Campbell had been discharged for Union activities, stated that if Campbell had been laying down on the job to let him go. Haynie then decided that his order to Russell would stand and so that afternoon when Campbell reported for work, Russell, without giving any reasons to Campbell for his dis- charge, told him to go to the office and get his check. Campbell, when he arrived in the office, saw Haynie, obtained his check and since has not returned.` - Having found that the testimony of Haynie and Russell is creditable, it is unnecessary here to review or particularize the contentions of the Board that Haynie should not have relied upon Gibson's report of Campbell's work, or that there was no basis in fact to support his adverse statements. The procedure followed by Haynie in the discharge of Campbell was not unusual and had in other instances been followed. Even assuming wguendo that Gibson's report had no basis in fact, the evidence fails to affirmatively show that Haynie's de- cision to discharge Campbell was in any way founded upon the fact that he had any knowledge of Campbell's efforts in behalf of the Union. While not without some doubt as to the creditability of the testimony of Haynie concerning the dis- charge of Campbell, the undersigned is not persuaded that the discharge was occasioned because Haynie knew or believed Campbell to be a Union advocate. Since Haynie denied that he had any knowledge of Campbell's activities, until after he had ordered the discharge of Campbell, and the evidence does not show affirmatively otherwise, only by inference could it be found that Haynie held a contrary belief. The,record contains no evidence to support-such-an inference. The undersigned concludes and finds that the allegations of the complaint with respect to Campbell are not sustained by substantial evidence, and that Campbell was not discharged because the respondent believed hi in to be a Union member or active in its behalf. IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The undersigned finds that the activities of the respondent set forth in Section III (a) 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 thereof. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, the undersigned will recommend that it cease and desist therefrom and take certain affirmatii;e action which the.undersigned finds necessary to effectuate the policies of the Act. G The facts recited herein are not in dispute and' are based principally upon the testimony of Haynie and Russell, which the undersigned feels is entitled to credence. There are some contradictions In their testimony which create some doubt as to its trustworthiness; how- ever, these are not of such importance that the undersigned would be justified in rejecting the testimony in its entirety . I' urtbermore, to reject their testimony would require in substance a finding that all the conversations between Haynie and Russell preceding Campbell's discharge were afterthoughts , conceived for the purpose of making it appear that Campbell 's Union activities , which started on the night before his discharge, could not possibly have motivated Haynie's discharge of Campbell . The undersigned , under the circumstances, is not prepared to make such a finding. 40 DE'CTSIONS OF NATIONAL LABOR RELATIONS BOARD It having further been found that the respondent has not discriminated against Henry C. Campbell, in respect to his hire or tenure of employment, it will be recommended that the complaint be dismissed insofar as it alleges such discrimina- tion. , Upon the basis of the foregoing findings of fact and on the entire record in the case the undersigned makes the following : CONCLUSIONS OF LAW 1. Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of that Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 4. The respondent has not engaged in unfair labor practices within the meaning of Section 8 (3) of the Act, by terminating the employment of Henry C. Campbell. RECOMMENDATIONS On the basis of the above findings of fact and conclusions of law the undersigned hereby recommends that the respondent Fickett-Brown Manufacturing Company, Inc., (Atlanta , Georgia ) its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) In any manner interfering with, restraining , or coercing its employees in the exercise of the rights to self-organization to form, join or assist labor organiza- tions, bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection as guaranteed in Section 7 of the Act. . 2. Take the following affirmative action which will effectuate the policies of the Act : (a) Post immediately in conspicuous places throughout its plants in Atlanta, Georgia, and maintain for a period of sixty ( 60) consecutive days from the date of the posting, notices to its employees stating that the respondent will not engage in conduct from which it is recommended that it cease and desist in paragraph 1 (a) of these recommendations ; (b) Notify the Regional Director for the Tenth Region in writing within ten (10) days from the date of the receipt of this Intermediate Report what steps the respondent will take to comply herewith. It is further recommended that unless on or before ten (10 ) days from the date of the receipt of this Intermediate, Report, respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an appropriate order requiring the respond- ent's compliance therewith. And it is further recommended that the complaint be dismissed insofar as it alleges that the respondent has discriminated in regard to the hire and tenure of employment of Henry C. Campbell. FICKETT-BROWN MANUFACTURING COMPAINTY 41 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 of Article II of the said Rules and Regulations, file with the Board, Rochambeau Building, Washington, D. C. an original and four copies of a statement in writing setting forth such exceptions to this intermediate Report or to any other part of the record or pro- ceeding (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 within ten (10) days from the date of the order transferring the case to the Board. JAMES C. BATTEN Trial Ewaminer Dated July 21, 1943.