Magnolia Cotton Mill Co., Inc.

In the , Matter Of MAGNOLIA COTTON MILL CO., INC., ALSO KNOWN AS MAGNOLIA COTTON MILL COMPANY OF N. & W OVERALL COMPANY, INC. lend UNITED TEXTILE WORKERS OF AMERICA, A. F. L. In the Matter of MAGNOLIA COTTON MILL COMPANY, INC., AND N. & W. OVERALL COMPANY, INC. and UNITED TEXTILE WORKERS OF AMERICA, A. F. L. Cases Nos. 15-R-1933 and 15-C-1205, respectively.Decided August 27, 1948 Mr. George H. O'Brien, for the Board. Messrs. H. V. Watkins and E. R. Edwards, both of Jackson, Miss., and Mr. Gordon Gerhart, of Magnolia, Ark., for the Respondent. Messrs. James A. Bain, J. D. McPherson, and S. V. Zinn, of Little Rock, Ark., for the Union. DECISION AND ORDER On July 7, 1947, Trial Examiner Louis Plot issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent' had engaged in and was engaging in certain unfair labor practices 2 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. He further found that the Respondent had in- terfered with an election conducted among the Respondent's em- ployees by the Board on February 28, 1947, to determine represent- atives for the purpose of collective bargaining, and recommended that the election be set aside. The Trial Examiner also found that the Respondent had not unlawfully discharged Loyce Hendricks, as alleged in the complaint, and recommended that the complaint be dis- missed as to him. 1 The true name of the Respondent appears to be "Magnolia Cotton Mill Co., Inc., also known as Magnolia Cotton Mill Division of N. & W. Overall Company, Inc." and we hereby amend the caption designations to so read. 2 Those provisions of Section 8 (1) and (3) of the National Labor Relations Act, which the Trial Examiner found were violated, are reenacted in Section 8 (a) (1) and 8 (a) (3) of the Labor Management Relations Act, 1947. 79 N. L. R. B., No. 18. 91 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Respondent's request for oral argument is hereby denied inasmuch as the record, in our opinion, adequately presents the issues and positions of the parties. The Board 3 has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Iiiterme- diate Report, the Respondent's exceptions and supporting brief, and the entire record in the case, and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner, only insofar as they are consistent with our findings, conclusions, and order herein- after set forth.4 1. The Trial Examiner found, as fully set forth in the copy of the Intermediate Report attached hereto, that the Respondent interfered with, restrained, and coerced its employees in violation of Section 8 (1) of the Act. We agree with this conclusion. However, we limit the grounds for our finding to the following conduct of the Re- spondent : (1) Statements by Plant Manager Gordon C. Gerhart to employee Fred C. Looney, consisting of (a) inquiries as to the reasons for, and the progress of, the Union's activity at the plant; (b) implied threats of economic reprisal in the event the Union should succeed in organizing the plant; and (c) directions not to engage in any union activities on company premises; ' (2) Gerhart's action in requesting Mrs. Fred C. Looney, employee, to write a letter of resignation to the Union and in supervising the content and dispatch thereof to the Union office; 6 and (3) Respondent's announcement of a wage-increase on February 24, 1947, for the purpose of directly affecting the em- ployees' decision on the issue of Union representation in the election scheduled for February 28.7 a Pursuant to the provisions of Section 3 (h) of the Act, as amended , the National Labor Relations Board has delegated its powers in connection with this proceeding to a three- man panel consisting of the undersigned Board Members [ Houston, Murdock , and Gray]. 4 We find nothing in the record to support the Respondent 's chaige that the Trial Exam- iner was biased against it Accordingly, we overrule the exception taken on that ground 5 The record fails to show that this prohibition, insofar as it applied to the employees' own time, was necessary in order to maintain production or preserve discipline at the plant. We reject the Respondent's contention that its conduct in this respect was proper be- cause Mrs Looney had originally indicated her desire to withdraw from the Union 4 See Matter of Hudson Hosiery Company , 72 N L R B 1434, and the cases cited therein. In so concluding, we find without merit the Respondent 's assertion , advanced for the first time in its brief, that "as far as the company could see at . . . [this ] time, there was no union in existence." The Intermediate Report contains certain misstatements of fact and inadvertences, none of which affects the Trial Examiner 's ultimate conclusions , or our concurrence therein. Accordingly , we note the following corrections : ( 1) The Trial Examiner found that Ger- hart asked Looney if the majority of the employees had joined the Union The record shows that Gerhart asked whether Looney thought the majority would join the Union ; ( 2) The Trial Examiner states that Gerhart denied that he asked Mrs. Looney to write the letter of resignation to the Union . We find that Gerhart denied merely that he insisted that she MAGNOLIA COTTON MILL CO., INC. 93 2. The Trial Examiner also found that the Respondent discrimina- torily discharged Preston Daniels, Clifton Rogers, Roy Waller, and Ozie Stephens, and thereby violated Section 8 (3) of the Act. We, however, agree only that the Respondent discriminated against Clifton Rogers, and find that the preponderance of the evidence does not sup- port the finding with respect to the remaining three complainants. ' Rogers was discharged on August 13, 1946, 2 days after he had joined the Union and had been elected to temporary office. The Respondent seeks to justify his discharge on the ground that his in- competence in repairing broken spindles in the card room was partly responsible for a decline in its production. Gerhart testified that Rogers' manner of grinding cards was also a factor in the production lag. His testimony in this latter respect, however, was vague and uncertain and obviously an afterthought designed to bolster the Respondent's case against Roger*. As to the Respondent's other con- tention, the record shows that the duty of repairing broken spindles rested on Rogers, as the fixer on the first shift, and Brewster, a non- union employee who had that responsibility on the second shift. • A third employee, not further identified in the record, was charged with the same responsibility on the swing shift. As between Rogers and Brewster, however, the former was admittedly the better qualified employee. Gerhart also admitted that during the period in question Brewster had failed to repair the broken spindles on his shift. Furthermore, although Supervisor Aldrich admittedly had com- plained about the quality of Brewster's work on six occasions, there was but a single instance, during the approximately 10 years Rogers had been in its employ, that the Respondent criticized Rogers' work in any way. The incident in question involved both Rogers and Brewster and occurred during the week ending July 13, 1946. At that time, Gerhart had summoned them to his office and told them that they would have to cooperate with each other. Significantly, no ref- erence was made at the time either to broken spindles or to Rogers' alleged responsibility therefor, although this occurred after Gerhart had allegedly been informed of Rogers' dereliction. In addition, when asked, "how did you decide in your own mind whether the lack of production was due to Rogers or to Mr. Brewster," Gerhart replied that "Rogers was by far the best man of the two, . . . and . . . it was up to him to find the trouble"; also, that he was holding Rogers responsible for any failure of Brewster. write this letter , (3) The Trial Examiner inadveitently'states at one point in the Inter- mediate Report that Ozie Stephens ' employment was terminated on November 6. 1947. As appears hereinafter , the record shows the correct date of Stephens' termination to be No- vember 6, 1946 , (4) Contrary to the Trial Examiner's finding , the record only shows that the parties stipulated that the evidence presented in Case No . 15-C-1205 should be consid- ered binding in Case No. 15-R-1933. 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the highly tenuous 'reasons adduced to support Rogers' selection for discharge, and in the light of all the evidence, including the Respondent's knowledge of Rogers' union membership 8 and its demonstrated anti-union animus, we are of the opinion, as was the Trial Examiner, that the calibre of Rogers' work was not the moti- vating factor in connection with his discharge. We regard as note- worthy, too, the Respondent's further attempt to bolster its case against Rogers by asserting in its brief that Rogers' incompetence forced the discontinuance of the third shift in the weave room. That this assertion is wholly without merit is clear from Gerhart 's testi- mony that the weave room's third shift was discontinued be there was insufficient help to keep all the looms busy. We therefore find that Clifton Rogers was discriminatorily discharged in violation of Section 8 (3) of the Acts The Trial Examiner rejected the Respondent's contention that Pres- ton Daniels, a supervisor, was discharged because he had violated its neutrality instructions to supervisors; he found instead that the in- structions issued were of an unneutral character and that the Re- spondent was motivated in the discharge by anti-union considera- tions. In our opinion, the preponderance of the evidence supports the Respondent's position. The record contains significant testimony, in addition to that appearing in the Intermediate Report, which the Trial Examiner apparently failed to consider. Supervisor Herbert C. Parker, for instance, also testified that Gerhart told the supervisors, that they were "not to take a side" and that if forced to answer em- ployees' questions, they were to do so in their "personal capacity," and not as supervisors. And Supervisor Thad Murphy corroborated Ger- hart's testimony that on more than one occasion the supervisors were instructed to remain neutral and that Daniels was present when these instructions were given. On the entire record, we therefore conclude, contrary to the Trial Examiner, that the discharge of Daniels was motivated by the Re- spondent's desire to protect its neutrality and was not violative of the Act.'° 8 Appraising Gerhart's testimony in the light of all the evidence , we, like the Trial Examiner, cannot credit his denial of knowledge of Rogers ' union membership We are of the opinion that the evidence warrants the conclusion that Gerhart learned of this fact on August 12, and we so find. 9 While union activity "in itself is no bar to the discharge of an employee for legitimate reasons, it may well disclose the real motive actuating an anti-union employer in discharg- ing such an employee when the reasons given for the action do not ring true." Burk Bros. v. N. L R. B., 117 F. (2d) 686, 687 (C. C. A. 3), enf'g as mod., 21 N. L. R. B. 1281 , cert. den. 313 U S. 588. 10 Cf. Matter of Wells, Inc., 68 N. L. R. B. 545, enf'd in 162 F. (2d) 457 (C. C. A. 9). In, that case it was clear that the claim that a supervisor was discharged to protect the com- pany's neutrality was a mere pretext and not the real reason for the discharge. MAGNOLIA COTTON MILL CO., INC. 95 The Trial Examiner rejected the Respondent's contention that, in order to make room for a returning veteran, Roy Waller was selected for lay-off on August 19, 1946, because Waller was a temporary and new employee. He found further that, although Waller was not a member of the Union, his discharge was motivated by certain pro- union remarks uttered by him on August 10. , In our opinion, the weight of the evidence does not support the Trial Examiner's ultimate finding. Thus, even if we assume that Roy Waller was not a temporary em- ployee, it is clear that as a new man on the job when the veteran appeared 11 he was-a likely prospect for lay-off. And, although Waller was not retained when the veteran who was hired to replace him failed to show up for work, we do not attach any overriding significance to this incident, as did the Trial Examiner. The ,record discloses in this connection that, when Waller subsequently appeared at the plant in search of a job, several of the Respondent's supervisory personnel, in- cluding Superintendent Flynn who probably made the original de- cision to replace Waller, attempted to find an opening for him. We think it doubtful that these efforts would have been 'exerted on his behalf had his discharge been motivated by anti-union considerations. Moreover, Waller himself did not feel that he was being discriminated against at the time; for, when asking to be put back to work, he con- ceded that "the G. I. had priority." Finally, while the record sup- ports the Trial Examiner's finding that Waller was later ordered out of the mill by Gerhart, it further appears that the latter acted in this manner because he was incensed over the reported fact that Waller had made certain derogatory remarks about him. Under all the facts and circumstances, we are not convinced that the record supports the Trial Examiner's finding that Waller was dis-. criminatorily discharged. As to the termination of Ozie Stephens on November 6, 1946, the Trial Examiner found that, upon learning that Wilson, a fellow em- ployee with Stephens on the slasher, was leaving, the Respondent acted in a manner which was designed to force Stephens to quit and that it accomplished that purpose in violation of Section 8 (3) of the Act. We do not agree. On November 6, Stephens and Wilson were the Respondent's only slasher operators. It also appears that approximately 6 weeks is re- quired to learn this operation. In view of these facts, we think it unlikely that the Respondent would, upon learning of the departure of Wilson, intentionally endeavor to rid itself of Stephens. Moreover, n His last employment with the Respondent began during the middle of July or the first of August. 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there is additional evidence in the record, not appearing in the Inter- mediate Report, which discloses Stephens ' fixed intent to quit if his demands, upon Wilson's departure, were not met. Thus, employee David Caldwell credibly testified that it was "general knowledge," a week before, that Wilson was going to resign and that Stephens told a group of employees ' during the week that he was not going to run the slasher by himself and that they would have to give him a raise "before he turned a top. " Under these circumstances , we find that Stephens was not constructively discharged, as the Trial Examiner found, but that he voluntarily quit because of a dispute over working conditions. On the basis of the foregoing, we shall dismiss the complaint as to Preston Daniels, Roy Waller , and Ozie Stephens. 3. We agree with the Trial Examiner that there was a calculated timing of the wage increase announcement on February 24, 1947, under circumstances which could have but one effect-that of inducing em- ployees to vote against the Union in the election several days later. We therefore find, as did the Trial Examiner, that by such action the Respondent interfered with the conduct of the election of February 28, 1947, and deprived the employees of the freedom of choice contem- plated by the Act. We shall accordingly set aside that election and direct a new election at such time as the Regional Director advises us that the circumstances permit a free choice of a bargaining repre- sentative among the employees here concerned.12 THE REMEDY Having found that the Respondent has engaged in unfair labor practices , we shall order it to cease and desist therefrom and take cer- tain affirmative action which we find necessary to effectuate the policies of the Act, as amended. The Trial Examiner also found that the Respondent violated Sec- tion 8 (1) of the Act in the manner hereinbefore set forth. However, his iecommended order did not contain any provision directed particu- larly to such violations. We are of the opinion, upon the entire record, that the commission in the future of such acts of interference and of other unfair labor practices may be anticipated from the Respondent's conduct in the past. We shall , therefore, order that the Respondent cease and desist from such conduct, and from in any other manner infringing upon the rights guaranteed to its employees in Section 7 of the Act. 12 "This Board has held in a number of cases that the award or announcement of wage . . . benefits just before an election . . . constitutes sufficient interference to require the setting aside of an election " Matter of Hudson Hosiery Company, cited supra, footnote 6. MAGNOLIA COTTON MILL CO., INC. ORDER 97 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 Respondent, Magnolia Cotton Mill Co., Inc., also known as Cotton Mill Division of N. & W. Overall Company, Inc., Magnolia, Arkansas, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in United Textile Workers of Amer- ica, A. F. L., or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees or by dis- criminating in any other manner in regard to their hire and tenure of employment, or any term or condition of employment; (b) Interrogating its employees concerning their knowledge of the reasons for, or the progress of any union organizational activity at the plant; (c) Threatening to close its plant or employ other economic reprisals against its employees if United Textile Workers of America, A. F. L., or any other labor organization, succeeds in unionizing the plant; (d) Prohibiting union activity on company property during the employees' non-working time; (e) Assisting its employees in procuring their withdrawal from United Textile Workers of America, A. F. L., or any other labor organization ; (f) Announcing, promising, or granting wage increases or other economic benefits, so as to interfere with, restrain, or coerce its em- ployees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Textile Workers of America, A. F. L., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act; . (g) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer Clifton Rogers immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges; (b) Make whole Clifton Rogers for any loss of pay he may, have suffered by'reason of the Respondent's discrimination against him by 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD payment to him of a sum of money equal to the amount which he nor- mally would have earned as wages during the period from the date of his discharge to the date of- the Respondent's offer of reinstatement, less his net earnings during said period; (c) Post at its plant in Magnolia, Arkansas, copies of the notice attached hereto, marked "Appendix A." 13 Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being signed by the Respondent's representative, be posted by the Respondent, and maintained by it for sixty (60) consecutive days thereafter, 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; (d) Notify the Regional Director for the Fifteenth Region in writ- ing, within ten (10) days from the date of the receipt of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent discharged Loyce Hendricks, Preston Daniels, Roy Waller, and Ozie Stephens in violation of Section 8 (3) of the Act, be, and it hereby is, dismissed. AND IT IS FURTHER ORDERED that the election held on February 28, 1947, among the employees of the Magnolia Cotton Mill Co., Inc., also known as Cotton Mill Division of N. & W. Overall Company, Inc., Magnolia, Arkansas, be, and it hereby is, set aside. APPENDIX A 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 UNITED TEXTILE WoRB- ERS OF AMERICA, A. F. L., or any other labor organization of our employees, by discharging or refusing to reinstate any of our em- ployees or by discriminating in any other manner in regard to their hire and tenure of employment, or any term or condition of employment. WE WILL NOT interrogate our employees concerning their knowl- edge of the reasons for, or the progress of, any union organizational activity at the plant. is In the event this Order is enforced by decree of a Circuit Court of Appeals, there shall be inserted in the Notice, before the words, "A DECISION AND ORDER" the words, "A DECREE OF THE UNITED STATES CIRCUIT COURT OF APPEALS ENFORCING." MAGNOLIA COTTON MILL CO.,'INC. 99 WE WILL NOT threaten to close our plant or employ other eco- nomic reprisals against our employees if UNITED TEXTILE WORK- ERS OF AMERICA, A. F. L., or any other labor organization, suc- ceeds in unionizing the plant. WE WILL NOT prohibit union activity on company property dur- ing the employees' non-working time. WE WILL NOT assist our employees in procuring their withdrawal from UNITED TEXTILE WORKERS OF AMERICA, A. F. L., or any other labor organization. WE WILL NOT announce, promise, or grant wage increases or other economic benefits, so as to interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist UNITED TEXTILE WORK- ERS OF AMERICA, A. F. L., or any other labor organization, to bar- gain 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. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed by Section 7 of the Act. WE WILL offer to Clifton Rogers immediate and full rein- statement to his former or substantially equivalent position with- out prejudice to any seniority or other rights or privileges pre- viously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination. All our employees are free to become or remain members of the above-named Union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee be- cause of membership in or activity on behalf of any such labor organization. MAGNOLIA COTTON MILL CO., INC., also known as MAGNOLIA COTTON MILL DIVISION OF N. & W. OVERALL COMPANY, 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. 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED DECISION Mr. George H O'Bi ren, for the Board. Messrs. H. V. Watkins and E. R. Edwai ds, both of Jackson, Miss., and Mi. Gor- don Get hart, of Magnolia, Ark., for the Respondent.' Messrs. James A. Bain, J D. McPherson, and S V. Zinni., all of I ittle Rock, Ark., for the Union. STATEMENT OF THE CASE On August 16, 1946, the United Textile Workers of America. A. F L. herein called the Union, filed with the Regional Director for the Fifteenth Region (New Orleans, Louisiana), as the agent of the National Labor Relation's Board, herein called the Board, a charge alleging that the Magnolia Cotton Mill Company, Inc., and N. & W. Overall Company, Inc., had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section S (1) and (3) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The charge was docketed in the Fifteenth Regional Office as Case No 15-C-1205 On September 4, 1946, the Union filed with the Board, a petition for certification of representatives pursuant to Section 9 (c) of the Act, which was docketed in the Fifteenth Regional Office as Case No 15-R-1933 On September 10, 1946, the Union filed with the Board a Waiver. wherein the Union waived its charges of unfair labor practices filed in Case No. 15-C-1205 insofar as such charges might constitute a basis for objection to any proceedings in 1.3-R-1933 including a basis for protesting or objecting to the results of any election which the Board might order conducted in 15-R-1933. A hearing was held on the Union's petition at Magnolia, Arkansas, on October 2:,, 1946 On January 10, 1947, the Board issued its Decision and Direction of Election in the matter and pursuant thereto an election by secret ballot was conducted on February 2S, 1947, by the Regional Director of the Fifteenth Region, among certain of the Respondent's employees, in a unit found to be appropriate for the purposes of collective bargaining in the Board's Decision and Direction of Election before mentioned. The certified Tally of Ballots gave the results of the election to be : Votes cast for United Textile Workers of America, A. F. L------------- 20 Votes cast against the Union---------------------------------------- 101 Challenged ballots-------------------------------------------------- 6 On March 5, 1947, the Union filed objections to the conduct of the election with the aforesaid Regional Director. Thereafter. on Api it 22. 1947, the Regional Director' issued his Report on Objections, finding that the objections raised substantial and material issues with respect to the conduct of the election and recommending that the election be set aside On May 1, the Respondent filed exceptions to the Regional Director's Report on Objections. Meanwhile upon an amended charge duly filed April 15, 1947, by the Union, the Board; by its aforesaid Regional Director, issued its complaint in 15-C-1205, dated April•21, 1947,-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 Act Copies of the complaint, together with notice of hearing thereon, were duly served upon the Respondent and the Union With respect to the unfair labor practices the complaint alleged in substance: that the Respondent (a) discharged and refused to reinstate certain named 1 The report was issued by an Acting Regional Director. MAGNOLIA COTTON MILL CO., INC. 101 employees because of their membership in and activities on behalf of the Union, (b) compelled its employees to hear arguments against the Union, (c) made anti- union speeches to its employees and distributed anti-union letters to them, (d) held out promises of future benefits conditioned upon the Respondent's employees remaining unorganized, (e) granted wage increases and promised wage increases as part of its anti-union campaign, (f) inters ogated its employees regarding their union membership, (g) threatened employees with discharge because of their union membership, (h) threatened to close its plant if its employees organized a union, and (i) that by the foregoing acts and conduct the Respondent inter- fered with, restrained, and coerced its employees in the exercise of the rights •guaranteed in Section 7 of the Act and more particularly in violation of Section 8 (1) and (3) thereof On May 1, 1947, the Respondent filed a motion for a Bill of Particulars with the Regional Director, who granted the motion. The Bill of Particulars was furnished. Pursuant to notice a hearing was held May 5 to 8, inclusive, at Magnolia, Arkansas, before Louis Plost, the undersigned Hearing Examinei, duly designated by the Chief Hearing Examiner. All the parties were represented Full oppor- tunity 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 the Board moved to amend its Bill of Particulars and complaint. The undersigned granted the motion as to the Bill of Particulars and denied it as to the complaint. The Respondent then filed an answer, in which it denied that it had engaged in any of the unfair labor practices alleged in the complaint, averred that two of the employees named had voluntarily quit, that one had been a temporary employee whose services had no longer been required, and that two had been discharged for cause. At the close of the hearing the undersigned granted, without objection, a motion by the Board to conform all the formal documents to the proof with respect to the spelling of names, and as to places, dates and similar matters . An opportunity was afforded all parties to argue orally on the record and to file briefs, findings of fact and conclusions of law, or both, with the undersigned. No oral arguments° were presented . A brief has been received from the Respondent. Meanwhile the Board having considered the Union's objections to the conduct of the election in Case 15-R-1933, the Regional Director's report thereon, and the Respondent's objections to the report, directed on May 7, 1947, that a hearing be held on said objections and directed that hearing in Case No. 15-R-1933 be consolidated with Case No. 15-C-1205. The undersigned had no official knowledge of the Board's action until after the close of the hearing in Case No. 15-C-1205 All parties were duly notified of the Board's action and upon due notice the consolidated-hearing was reopened at Magnolia, Arkansas, on May 16. All parties were in attendance. The parties stipulated that the evidence presented in both cases should be considered binding in either or both cases. Full oppor- tunity to be heard, to examine and cross-examine witnesses, to introduce evi- dence bearing upon the issues , and to argue orally on the record was afforded all the parties. At the close of the hearing the time previously set for the filing of briefs, conclusions of law and findings of fact, or both, was extended by the undersigned. No oral arguments were made; however, the representative of the Union made a statement on the record. Upon the record thus made and from his observation of the witnesses, the undersigned makes the following: 809095-49-vol 79-8 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Board has found in its Decision and Direction of Election in 15-R-1933 that : "Magnolia Cotton Mill Co., Inc., also known as Magnolia Cotton Mill Division of N. & W. Overall Company, Inc., a Virginia corporation, is engaged at Magnolia, Arkansas, in the manufacture, sale and distribution of cotton piece goods. During the 6-month period ending June 30, 1946, the employer [Respondent] purchased raw materials valued in excess of $150,000, of which approximately 2 percent was shipped from points outside the State of Arkansas. During the same period the employer [Respondent] purchased finished goods valued in excess of $250,000, of which 99 percent was shipped to points outside the State of Arkansas." On the above facts the Respondent admitted and the Board found the Re- spondent to be engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED United Textile Workers of America, affiliated with the American Federation of Labor, is a labor organization admitting employees of the Respondent to membership. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint and coercion 1. The organization of the Union The first organizational meeting of the Union was held on Sunday, August 11, 1946. Fred Looney testified that some time prior to the first meeting, one Ross, an organizer for the Union, discussed the formation of a union among the Respond- ent's employees with him and that thereafter Looney discussed the matter with ,other employees of the Respondent and made arrangements for the first meet- ing. Among those contacted by Looney was employee Clifton Rogers who tes- tified that Looney first talked to him about the Union "two or three weeks" before the first meeting. Loyce Hendricks testified that late in July or early in August a stranger, who identified himself as a union organizer, approached him and a group of the Respondent's employees "out by the side of the mill" and after first explaining his mission asked Hendricks to join the Union. Hen- dricks thereupon joined. Roy. A. Waller testified that he first heard of the Union from Hendricks about 1 week prior to its first meeting. Waller further testified that on the day before the first meeting he discussed the proposed Union with fellow employee Brewster who expressed disapproval of the Union. On the same day after Waller's shift was over he held a conversation with Union Organizer Ross "just outside the door" of the Respondent's plant. Several others were present during the conversation, among them one Phillips, the foreman of the Respondent's weaving department. During the course of the conversation Ross invited Waller to attend the meeting to be held the following day., At the Union meeting held August 11, an organization committee and tem- porary officers were selected and application cards were issued for distribution among the employees, None of the above related testimony was denied, and is credited by the under- igned. MAGNOLIA COTTON MILL CO., INC. 103 The undersigned finds that the organizational effort toward a union was known to the employees of the Respondent at least 2 weeks prior to August 11, 1946, and was known to the Respondent through Foreman Phillips on August 10, 1946. 2. Address to employees by Manager Gordon Gerhart. Gordon Gerhart, manager of the Respondent's plant, testified that he had no knowledge of the attempt of the employees to form a union until about 10 a. in., Monday, August 12, at which time Ray Machen, overseer of the weaving room, had Murphy, a cloth room overseer, and Flynn, at that time the plant super- intendent, came to him, told him of the Union meeting of the previous day and gave him the names of those attending the meeting. At the same time Machen informed Gerhart that Looney, who is Machen's brother-in-law, was in the Union, and Murphy told him that Murphy's sister-in-law had been solicited for mem- bership in the Union in the plant. Murphy and Flynn also informed Gerhart that application cards for membership in the Union were being circulated. Gerhart testified that about 1:15 or 1:30 p. in. he decided to address the em- ployees and without previously consulting the Respondent's home office he personally typed a speech to be delivered and then instructed the superintendent to have all employees within the mill assembled, and also to notify any employee who might be near the mill to attend 2 At approximately 2:30 p. in. the power was shut off and some 85 of a total of 135 employees were assembled. Gerhart further testified he thereupon told the employees that he had two documents he would read to them, "one which was a copy of a wage increase notice and I had placed on the bulletin board the past Saturday." According to Gerhart's testi- mony he then "proceeded to read a copy, a carbon copy of the wage increase. I had in my hand." This notice is more fully discussed at a later point in the report. Following the reading of the notice according to Gerhart he then read his prepared speech, without deviating from the prepared text. The prepared text of Gerhart's speech states in, part : First the law clearly states that the management shall not coerce or inter- fere in any way with the workers right to organize-you can join or re- frain from joining whichever you prefer but on the other hand it is against both the state as well as national laws to force or coerce an employee to join any union by such means as the threat of losing one's job or anything along this line. (One of our employees'has been doing this he will be dis- charged.) About the unions they may be alright, I don't know, but I do know that for mill this size which has been in operation for only 18 years and which has lost during that time $112,000.00 it would have a mighty difficult time traveling along out of the red and attempting to meet present union demands. We will operate along the best we can, paying the highest wages we can but anyone should know that a mill consistently losing money will eventu- ally pass out of existence and very few mills ever seem to operate success- fully once they have been put thru the wringer. In my opinion your management would be doing a gross injustice to its workers without approaching them in this manner urging their most earnest sober judgement before taking any step that might later prove to be preju- dicial to their best interests. . There may be many mills operating smoothly and profitably under the union contract but if there are there has never been much publicity given to 2 The record shows that the Company maintains a residence "mill village" for employees adjacent to the plant. 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such operations while on the other hand there have been any number of mills closed down as long as 4 mos or longer due to squabbling and wrangling among fellow employees as well as rival union interests. No.one will be fired or discriminated against for either advocating or arguing dig inst a union contract for this mill so long as it is not done on company time but anyone soliciting for or against the union on company time will be discharged immediately at the discretion of the management: In other words we want you to mind your own business and do the job you are paid to do while you are on company time Also if wv,^ have any mathematical experts among you who can show us how to pay higher wages than we have just granted we would welcome their advice. Are there any questions? If not . . That's All. Gerhart testified, that he began the reading of his prepared text with the statement "Now I have another paper that I will read word for woad." How- ever witnesses called by the Board testified that Gerhart did not confine his remarks to the prepared text but deviated therefrom in large measure Loyce Hendricks testified that Gerhart held two papers in his hand as he spoke but that he did not confine himself to the documents and in the course of his remarks Gerhart told his audience "that anyone that had anything to do with the union, any part of it, they would be automatically discharged." Preston Daniels testified that he heard Gerhart's speech and understood him to say that any employee who joined the Union or had anything at all to do with it would be discharged Ozie Stephens a testified that he heard Gerhart's speech, and observed that he held two papers in his hand and that as Gerhart spoke he would look at them [the papers] once in a while but not very often" and that during the course of his remarks Gerhart said "he was going to fire anybody that had any- thing to do with the union at all, automatically fire them." Carrie Alton Stephens testified that he heard Gerhart say in the course of his speech to the employees that -if anyone had joined the union or had anything in the union, well, he could fire them and there was no way anyone could prevent it." L. M. Beeson, called by the Respondent, testified that he stood within 10 feet of Gerhart as he delivered his address to the employees, and that Gerhart read the speech. Ellis Woelredge, called by the Respondent, testified that Gerhart read the speech. David Caldwell testified similarly. The notice of the wage raise, which according to Gerhart's testimony was posted on the Saturday preceding the address made on Monday, was introduced in evidence. The body of the notice is typed in red ink, the date on the notice is in black ink. The reason for the two colors was explained by Gerhart in his testi- mony and is the subject of further comment hereafter. Mrs Fred Looney testified that she stood 8 or 10 feet from Gerhart during the delivery of his speech to the employees. She testified that she observed the two papers in Gerhart's hand and that she particularly noted that the wage increase notice he read was typed in red. Mrs Looney testified that Gerhart read his main speech and corroborated the contents of the speech in some detail, however, she testified that she saw a copy Sometimes referred to as "Stevens" in the record. -MAGNOLIA COTTON MILL CO., INC. 105 of the speecliand read it "the night before last'-' and that hei memory of the event had been thereby refreshed From his observation of the witnesses and from the entire record the under- signed does not credit the testimony of Gerhart and those testifying that he confined himself to a mere reading of a prepared document to the Respondent's employees on August 12, 1946, and finds that the accounts of the witnesses Hen- dricks, Daniels and Ozie Stephens are the more accurate versions of the facts and finds that Manager Gordon Gerhart, in his speech to the employees as herein above related, did state to the Respondent's employees that those of them who joined the Union would be discharged theretor Moreover Gerhart's auditors were in fact a captive or compulsory audience They were assembled on the Respondent's orders, apparently could not leave at will and did not have the privilege of offering counter argument The undersigned finds that the manner in which the meeting of the employees to listen to Gerhart's addiess to them was arranged and the nature of the audi- ence so created, is of itself a violation of the Act 4 The Respondent contends that Gerhart's address to its employees falls within the protected area of the Constitutional guarantee of free speech and hence is in no way violative of the Act The undersigned finds no merit in this contention. Assuming arguendo that Gerhart confined his remarks to his prepared text, in ,the opinion of the undersigned the prepared text itself goes beyond the proper exercise of the right of free speech. In the prepared text Gerhart pointed out, that the mill which the Respondent had recently acquired had operated at a heavy loss: that it mill "consistently losing money," would "ei entually pass out of exist- ence" ; that "any number" of mills had been closed because of unions As Member Gerard D Reilly stated in his concurring opinion in Van Raalte, Inc., and Anieiican Federation of Hosiery Workers, CIO, involving a similar situation, "An argument couched even in bitter terms, if specific, i ould be permis- sible. This employer, instead, chose to implant fear in his audience . . ." 5 Moreover. the undersigned has found that Gerhart coupled with his prepared text definite threats of discharge of any employee joining the Union A threat of economic reprisal clearly is without the area of protection afforded by the Con- stitutional guarantee of free speech as applied to labor relations The undersigned therefore finds on the entire record that the speech delivered to the Respondent's employees on August 12, 1946, including the manner in which the employees were assembled to hear it. and the nature of the audience so created, was violative of the Act. 3. The wage increases Gerhart testified without contradiction that the Respondent made a general wage increase of approximately 10 percent on February 18, 1946. On March 10, the Respondent announced a second wage increase of approximately 5 cents per hour. This increase was made in conformity with an O. P. A. authorization per- 4 See Matter of Clark Brothers Co., Inc, 70 N L R B 802. See Van Raalte, Inc, and American Federation of Hosiery Workers, CIO, 69 N L R. B. 1326. While an employer may state facts within the orbit of the dispute , express his opinion on the merits, and even express leis hostility to unions or their representatives , he may not find protection in the First Amendment for utterances which amount to coercion or threats of reprisal N L. R. B v Trojan Powder Co , 3 cir , 135 F (2d) 337, cited with approval in : Thomas v. Collins, 323 U. S. 516; 538. 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mitting a higher selling price for the Respondent's product which would absorb the raise. Gerhart admitted, however, that approval for using the March pay raise as authority for raising the selling price of the Respondent's products was not received from the O. P. A. until September 5, 1946. The record is clear that the February and March increases were put in effect prior to the advent of the Union in the Respondent's plant. Gerhart further testified that on Saturday, August 10, between the hours of 5, and 6 p. m. he posted a notice announcing a general increase in wages of ap- proximately 10 percent. The notice, which was introduced in evidence, was typed in red with the excep- tion of the date which is in black. Gerhart testified that he typed and posted the notice himself. He explained that after he posted the notice on Saturday he learned of the Union's organization and then realized that the date might become an issue and therefore on the following Monday or Tuesday removed the notice, typed in the date (August 10) and replaced the notice on the bulletin board. Gerhart testified that in the latter part of July : ... we wrote them [0. P. A.] and made up our papers for the Wage Stabiliza- tion Board, requesting approval for an additional increase so as to qualify for the Band AA price. That came through some time in August-there were so many orders and directives which came through it is hard to remember them all. I wrote Mr. Turner the President, [of Respondent], that we were adjusting our prices in accordance with the wage increase and he said go ahead and give the wage increase. Q. (By Mr. WATKINS) Mr. Turner's approval of the increase was the tele- phone call that came through Friday, August 9? 7 A. Yes, sir. Q. Now Mr. Gerhart, you had been working on that wage increase for several months, had you not? A. We stayed keenly alive to Special Order No. 131. There were being amendments filed every day, some thirty-six amendments were filed, and by the time we thought we had ours all figured up and it was in proper form, another amendment would come through and we had to start from the beginning. Q. You had approval for that raise, that last raise? A. We worked it out for them according to the last amendment. * * * * * * Trial Examiner PLOST. I want to ask a question or two here in order to get this clear. I don't want to interfere, but on this wage increase, which is the third one we are talking about, the one made August 12, the one you have beew talking about last, you say that it was not necessary to ask the O. P. A. for permission to make that raise before you made it? The WiTNEss. It was not necessary to ask the Wage Stabilization Board for approval to grant that increase. Trial Examiner PLosT. But before you could use that increase as a spring- board to get your higher O. P. A. prices, you had to then get approval from the Wage Stabilization Board? The WrTNEss. Yes, sir. - T Gerhart testified that his authority to make the August wage increase was authorized by the Respondent's president through a telephone call received during a regular overseers' meeting, and that he thereupon so informed the overseers present. MAGNOLIA COTTON MILL CO., INC. 107 Trial Examiner PWST. Now , then, just what work and what papers did you file with the Wage Stabilization Board, or with any other governmental Board prior to August 12 in order to enable you to get the August 12 raise? Mr. WATKINS [ addressing the witness]. I will hand you the file on that. Trial Examiner PLOST. I would like to have the dates of that put in so, there will not be any argument about it. The WITNESS. I don't think that March 10 approval was had until September 5. Trial Examiner PLOST. I am talking about August 10. I want to know what you filed and when you filed it whom you filed it with. * * * * * * * (By Mr. WATKINS attorney for Respondent) Q. Do you have any papers or documents from your original file which will show the Examiner anything in reference to the raise of August 12? A. Yes, Sir. I think it would probably be well if we introduced- Trial Examiner PLOST. I asked the witness to tell me what he had done- and what documents he had to show what he had done in order to obtain permission from the War Labor Board or the Wage Stabilization Board to- grant a wage increase of August 12, 1946. He has testified that prior to August 12 , 1946, he spent a great deal of time writing to these various govern- mental bodies in order to get this Commission to grant this wage increase, and I wanted to see just what he had done. Mr. WATKINS . I suggest that we let Mr. Gerhart in his own words and with his own documents tell what he had done. The WITNESS . I probably misunderstood your original question . I did not infer from it that you had reference to the particular wage increase granted. August 12, but that you just wanted a general idea of how we arrived at the basis of those increases. Trial Examiner PLOST. I am sure that I particularly referred to the third wage increase and particularly referred to August 12, 1946, and particularly asked you to tell me or to show me from your documents just what you had done prior to August 12 in order to get that wage increase set up. The WITNESS . Well, Mr. Examiner, you don't ask the Wage Stabilization Board of prior approval of any wage increase. Trial Examiner PLOST. I know you testified to that. You testified if b remember the testimony , and if necessary, we will read it back, you testified, that prior to August 12, substantially your testimony was that you had spent a great deal of time and left the impression with me that you had conducted considerable correspondence here and there and elsewhere in order to set up this August 12 wage increase . If you had not done anything like that- The WITNESS . I was under the impression that you referred to the general wage increase. We had spent considerable time before August 12 to secure approval of the March 10 increase . We did not spend any time with agencies for the August 12 wage raise. Trial Examiner PLOST. That seems to answer the whole business. * * * * * * By Mr. WATKINS : Q. There was no correspondence with any governmental agency in references to the August 12 increase until after the increase was made effective? A. That is correct. 108 DECISIONS--OF -NATIONAL LABOR RELATIONS BOARD Q I will make this brief : Did the correspondence with the War Stabiliza- tion Board on the March 10 increase extend long past August 12? A. That is correct Q Didn't the qualifications for the March 10 increase for the 0 P A. Band have to be secured before the August 12 increase could even be sub- mitted? A That is correct. That is the only tie-in that we have found. Trial Examiner PLOST. When was the March 10 wage increase finally approved? The WITNESS. September 5, 1946 Trial Examiner PLOST. That was approximately a month after you made the announcement of the August increase? The WITNESS It was less than a month, about three weeks There is a conflict in the testimony of various witnesses, some of whom testi- fied that the wage increase notice hereinabove referred to was not posted until the day Gerhart addressed the employees, Monday. August 12, and others who were equally certain that they saw the notice on the bulletin board on Satur- day, August 10 The undersigned does not deem it necessary to resolve this conflict inasmuch as it has been found that the Respondent had knowledge of the Union's organizational effort on Satuiday, August 10, through the conversa- tion of employee Waller and Organizer Ross held in the piesence of Foreman Phillips. Although Gerhart testified that he had no knowledge of the union activi- ties of the Respondent's employees on Saturday, August 10, the undersigned, on the entire record, does not credit this denial of Gerhart and it is inferred that Gerhart did have such knowledge at the time he posted the notice hereinabove referred to. Hendricks testified that prior to the date of Gerhart's speech a notice, type,. on the Respondent's letterhead paper, to the effect that the Respondent was unable to grant a wage increase because the plant was operating at a loss, was posted on the bulletin board Ozie Stephens testified that about 10 or 12 days before Gerhart's speech to the employees he saw a notice to the effect that no wage raise would be made because it was against the law. In his testimony in response to questions by the Respondent's attorney, Gerhart admitted that sometime in July the Respondent posted a notice that wages could not be raised because of the Wage Stabilization Board and at a later point in his testimony denied posting the notice. In all his testimony Gerhart was evasive and gave the impression of deliber- ately not only coloring his testimony but attempting to withhold facts He did not make a favorable impression on the undersigned. The undersigned does not credit Gerhart's testimony but does credit the testimony of Hendricks and Ozie Stephens and finds that sometime prior to August 12, the Respondent posted a notice to the effect that it could not make any wage raises because of rulings of the Wage Stabilization Board The undersigned further finds that the notice of a general wage raise effec- tive Monday, August 12, 1946, was posted as a method of combating the 'Union and was intended to hinder the Respondent's employees in their efforts toward organization. The undersigned further finds that the wage raise announced in the notice, when made, was granted fot the same purpose and with the same intent. MAGNOLIA COTTON MILL CO., INC. 109 The Petition for Certification of Representatives in 15-R-1933, was filed 'September 4, 1246. An election to determine a bargaining representative was held by the Board among the Respondent's employees on February 28, 1947 The Board notified the Respondent of the filing of the petition in 15-R-1933 on September 18, 1946. On October 15, 1946, the Respondent announced a general wage increase to be effective October 21. On, February 24, 1947, 4 days before the election ordered by the Board in 15-R-1933, the Respondent announced another wage increase by posted notice. Gerhart testified that the February raise was made because wage increases were general in the industry at the time. Gerhart further testified with reference to the February 24 raise : Q. What you did was to bring wages up to meet the Union scale'? A Not exactly. It was pretty close to it We did bring it up to meet this scale right here. That was as close as we thought we could come to it. Concluding findings on the pay raises made by the Respondent The record is clear that the wage raise effective August 12, 1946, was made by the Respondent to combat the self-organizational efforts of its employees The announcement of the wage raise on February 24, 1947, just 4 days before an election to determine whether or not the Respondent's employees would be repre- sented by the Union, showed an undue lack of restraint on the part of the Re- spondent and as it was admittedly designed to meet the wage scale sought by the Union its timing leaves no doubt with the undersigned that it was intended to be and was in fact an anti-union device intended to thwart the Union, destroy 'the effectiveness of its appeal to the employees, and in this manner hamper their efforts toward organization. The pay raises, being made at the very time the Respondent first learned of its employees' efforts to form the Union, and con- tinuing until just before an election which was intended to record their desires, were clearly utilized as a weapon to destroy their organizational effort The undersigned so finds. 4 Other acts of intimidation, restraint, and coercion Fred Looney, a witness called by the Board, who proved to be reluctant if not hostile. testified that he has been in the employ of the Respondent for the past 13 years' Looney is a brother-in-law of Ray Mlchen, an overseer in the Re- 'spondent's weaving department and who was also Looney's foreman. Looney met the Union organizer some time before the initial Union meeting, the arrange- ments for which were made by Looney and which was held on August 11. At the meeting Looney was elected treasurer. Looney further testified that he did not hear Gerhart's speech but that on the day following the speech he was called to Gerhart's office, it being the first time he had ever been called into the office. Looney testified that upon arriving in Gerhart's office : Well, we got to talking about the situation there in the mill and which he had spoken before, the improvements they were planning on making. The first time, to the best of my memory, I don't think he even said anything about the Union. 8 None of the witnesses made any distinction between the Respondent and its predecessor whom the Respondent replaced. 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,On the following day Looney was again interviewed by Gerhart, and again on ,the day thereafter. Looney testified that during this conversation Gerhart "was trying to find out what got all that started out there, what was the trouble," but that Looney "didn't tell him any thing." Thereafter Gerhart called Looney to the office for a fourth conversation on -the Thursday following the Union meeting and called him again on Friday for a fifth conversation. Looney testified that during all these conversations con- -ditions in the mill were discussed, and no real conversation regarding the Union was held between the two men. He also testified that at one of their meetings, -Henry Flynn, the Respondent's then superintendent,' Thad Murphy, a foreman, and Mrs. Murphy were also present. Looney testified that the meetings all oc- -curred within 1 week and were "one right after the other" and that during the interviews he was asked by Gerhart how the Union was coming along, if the ;majority of the employees had joined, stated that the mill could not operate under union rules and also that Gerhart would tolerate no union activities in the mill 10 Looney testified that on a later occasion, Gerhart asked him when the Union intended to have the election. From Looney's testimony the time of this con- versation can be fixed at being sometime early in December or shortly before -December 1946. Looney further testified that some time prior to December 7, 1946, he returned the money which had been paid to him as Union treasurer by the Union's mem- bers to those members who had entrusted these funds to him. Looney admitted that no action had been taken by the Union which authorized him to return the dues money to the members. On December 7, 1946, Looney notified the Union organizer by letter of his action and at the same time withdrew from membership. Looney's above-related testimony was not denied and is credited by the under- -signed. A Mrs. Fred Looney, who is also employed by the -Respondent, testified that she wrote the letter apprising the Union organizer that she and her husband were withdrawing from the Union and that Fred ;Gooney had returned the dues pay- ments to the members. She testified without contradiction that after writing -the letter, which was signed by both Fred Looney and herself, she took it in an unsealed envelope to the Respondent's office and delivered it to Gerhart, leaving it for Gerhart to mail. Mrs. Looney further testified that Gerhart asked her to write the letter. Recalled as a witness for the Respondent, Mrs. Looney testified that prior to writing the letter of resignation she called on Gerhart at his office ,and was assured by him that the Union affiliation of her husband and herself would not in any way prejudice their employment with the respondent. Mrs. -Looney testified : 9 Or assistant superintendent, the record is not clear as to Flynn's exact title. to Looney further testified that on the Sunday following the Union meeting and after all of the above-related conversations between himself and Gerhart he received word to call at the home of one Blewster , an officer of a local bank. Looney and his wife called at Blewster's home whereupon Blewster asked "what started all that mess out there " Blew- ster questioned Looney regarding the Union, and stated that he (Blewster) "would see if he ,couldn't get things straightened out." Gerhart denied that the Respondent asked Blewster to talk to Looney, but did testify that Blewster reported the incident to him. The record shows that Blewster projected himself into the Union affairs of the Respond- ent's employees as a "volunteer" and that his action is not attributable to the Respondent. The undersigned so finds. MAGNOLIA COTTON MILL CO., INC. 111 To prove that Mr.- Gerhart did not influence us in any way to get out of the Union, I am going to tell this instance ... I made up my mind that I wanted some Christmas things, and my husband would say that Mr. Ger- hart might fire us and so and so, and I made up my mind that I was going to tell him and he could fire us, or he could tell us if he was going to fire us or what. I wanted to get some things for Christmas, and Fred would say not to spend my money, and I went to him and told him just what I told Mr. O'Brien. On examination by the attorney for the Board Mrs. Looney testified further as follows : Q. Whether there was any substantial reason for it or not, you actually were afraid that you might be discharged if you continued with your mem- bership with the Union, weren't you? A. No, not after talking to Mr. Gerhart. I was before. Q. Mr. Gerhart reassured you? A. He told me at the office, "I want you to understand that I don't discharge people for working for the union." Q. That is when you gave him the letter? A. No, that was after I talked to him. Q. The same day? A. No, sir. Q. How long after? A. I guess it was-he asked me for it one day and I was sick a day or two after then, maybe it was the next day. Mr. O'BRIEN. That is all. Gerhart denied that he asked Mrs. Looney to write the letter of resignation to the Union's officials. From the entire record the undersigned credits Mrs. Looney and finds that Gerhart did ask Mrs. Looney to send a letter of resignation to the Union and that at Gerhart's request she did write such a letter and de- livered it to Gerhart in an open envelope and that Gerhart, or someone acting on his instructions, did thereafter mail the letter in the envelope previously ad- dressed by Mrs. Looney. Conclusion The undersigned finds it significant that immediately following the Union's first meeting and the address delivered to the Respondent's employees by Man- ager Gerhart, he should on five consecutive days interview a rank-and-file employee regarding "conditions in the mill" and discuss with him the future plans of the Respondent; that on one of these occasions supervisory employees should also be present ; that during the interviews Gerhart should make inquiry regarding the Union affairs of the employees and make statements to the effect that Gerhart would tolerate no union activity in the mill. It is also significant to the undersigned that the employee thus singled out for this attention was the brother-in-law of a supervisor and' was the treasurer of the Union; who following these interviews resigned from the Union and without authority of the organ- ization returned their dues payments to his fellow union members. Simul- taneously with this latter action this employee and his wife wrote a letter to the Union's organizer apprising him of their action, the letter having been delivered to Gerhart in an unsealed envelope, and having first written the letter at Gerhart's request. 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the testimony of Fred Looney and Mrs. Fred Looney, which was in th'e main undenied, the undersigned infers that Gerhart sought and obtained information from Looney regarding the Union affairs of the Respondent's employees, intimi- dated and coerced Looney and his wife and thereby induced Looney and his wife to abandon the Union, and by Looney's unauthorized act of returning the payments of union dues made to him in his capacity of union treasurer, to impart the fear Looney and his wife had regarding their employment because of their union affiliation to their fellow employees 5 The Respondent's letters to its employees Manager Geihart testified that the Respondent issued four letteis to its em- ployees over his signature The letters are dated October 31, 1946 , November 15, 1946, February 19, 1947 , and February 28, 1947 . All the letters Were distributed to the Respondent 's employees on pay days , together with their pay checks. The February 28 letter was distributed on the day of the election , hereinbefore referred to. The letter of October 31 speaks of the Respondent's efforts to modernize its plant, which it had recently acquired ; to make beneficial repairs and changes in both the mill and the mill village ; and speaks of the wage increase it made, call- ing attention to the increase of August 12, which has been found to have been made in order to combat the Union and hinder the Respondent's employees in their effort toward self-organization. The letter states inter alga: On August 12th a third general wage increase was granted our employees. (But in spite of this increase there seemed to be a few disgruntled employees who seem to think the world owe them a living whether merited or not). The letter closes with the statement that there must be "absolute harmony" be- tween employer and employees otherwise "a house divided is bound to fall " The November 15 letter tells the employees that in order to achieve success the Respondent "must be able to operate unhampered by outside influences, people who are not interested in where the orders come from or in who is putting up the money but who are simply interested in advancing their own selfish interests." The letter then continues : We would suggest that you ask yourself this question Who would you rather depend on for your regular daily wages? Men who have behind them years of one successful business achievement after another or by men whom many of you don't even know and whose business ability or integrity you know nothing about. The letter then assures the Respondent's employees of their right to join or not to join a union, but states that it is the Respondent's opinion that a union would not "work to your best advantage" and points out in closing that three States "have already" outlawed closed-shop contracts and "more are following suit." The letter dated February 19, 1947, which was issued with the February 21 pay checks speaks of the election scheduled for February 28, urges all those eligible to vote to cast their ballots and assures them that they need fear no reprisals from the Respondent. The letter recites the original attempt to form the Union and asserts that those first attempting organization have since volnn- tarily informed the Respondent they no longer think a union is needed or wanted ;MAGNOLIA COTTON MILL CO., INC. 113 .by the employees ; asks why union organizers show such interest in the employees and are trying "to cram a union down their throats" and answers the question with the statement that these organizers are seeking "to fasten themselves on to a pay roll" ; states that the "closed shop" is dead and that all the U'iion proponents can hope for is the creation of two opposition groups in the mill , '.peaks at some length of the Respondent's liberal attitude toward employees and its efforts to create a modern plant and favorable conditions; states that the Respondent does not think a union is needed or that a union would serve the best interests of its employees. The letter among all its other arguments against self-organization of employees contains the following naked appeal to race prejudice : Remember also that professional organizers have always found colored help to be their easiest prey and that they manage as a rule to line them up solidly at the voting booth to vote their wishes and sometimes it has hap- pened that such a group, even tho a minority, has dominated the entire union, even herein the South. The letter closes : P. S Whatever your sympathies may have been in the past or whether you hold or have made application for a union card, you will still be free to vote whichever way you wish at the election box. We urge you to vote. In its letter dated February 26, 1947, but distributed on the day of the election, the Respondent speaks of the fact that an "anti closed shop" law had recently been enacted by the Arkansas Legislature, and alleges that rumors being circulated that those not voting for the Union might later lose their jobs in the event of a Union victory are entirely and self evidently false because of the "anti closed shop" statute. From the premise so set up the Respondent then asks: Do you desire as leaders, men who demonstrate such careless disrespect for the truth? The Respondent argues in its brief that the letters it issued to its employees are not in any way violative of the Act, inasmuch as they are legitimate ex- pressions of opinion, free of any coercive statements, and fully protected by the Constitutional guarantee of free speech. The undersigned finds no merit in this contention. The Respondent's four letters, in the opinion of the undersigned, cannot be viewed singly nor can they be viewed in isolation either singly or as a group. The letters were not written or circulated in a vacuum nor could they be read and interpreted in a vacuum by their recipients The Respondent's letters must be considered as a group, and against the back- ground of the Respondent's unfair labor practices. More than the phraseology of the letters is to be considered, for more enters into the letters than the mere words in which they are phrased. When considered against the proper back- ground, including all the unfair labor practices of the Respondent, the coercive intent of the Respondent becomes clear and unmistakable, whereas absent the background an entirely different interpretation is possible. The undersigned does not believe that the Respondent has the right to insist that its letters be considered on their phraseology alone, without the setting in which they were written, thus obscuring their real meaning The motive and the intent of the speaker or writer gives effective meaning to words, and without an evaluation of the intent of him who employs words in an arena where they become weapons, their real weight, value, and effect as weapons cannot be understood 114 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD The undersigned considers the Respondent's letters in this manner and -finds that in the entire series the Respondent belittles the efforts of its employees to self-organization ; seeks to drive a wedge between those working toward self-organization ; casts doubt upon the motives of their organizers by imputing selfish and dishonest motives to them, at the same time picturing the Respondent in the most favorable light; adroitly seeks to relieve any employee who may have promised to support the Union of any qualms of conscience in the event of desertion, and,, injects race prejudice into its campaign against the Union. Moreover the Respondent states that it does not think that a Union will serve the best interests of its_employees and that all the Union proponents can suc- ceed in doing is to create two opposing groups of employees. As all the Re- spondent's letters are framed in a background of unfair labor practices, fully known to all its employees, the undersigned concludes and finds,that the Respond- ent's letters were all intended to and did intimidate, coerce and restrain its ,employees in their efforts toward self-organization and the selection by them of a representative for the purposes of collective bargaining and were therefore not protected utterances but rather an abuse of the Constitutional right of free speech as applied to matters affecting unfair labor practices. Concluding findings on interference, restraint and coercion The undersigned finds that by the speech delivered by Manager Gerhart to the Respondent's employees on August 12, 1946, including the manner in which the Respondent's employees were assembled for the purpose of hearing Gerhart's speech and the nature of the audience so created ; by the announce- ments of the wage increases made by Respondent as effective of August 12, 1946, October 15, 1946, and February 24, 1947; by the conversations and interviews of Fred Looney by Manager Gerhart over a period of approximately one week beginning August 13, 1946; by the request of Manager Gerhart to Mrs. Fred Looney that she write a letter of resignation to the Union's officials, and by the Respondent's letters dated October 31, 1946, November 15, 1946, February 19, 1947, and February 28, 1947, and issued to its employees by the Respondent, and by the totality of the above-enumerated acts and conduct, the Respondent demon- strated that it was engaged in, and did engage in, a continuous and coercive course of conduct designed to defeat the efforts of its employees to achieve self- organization, and that by such course of conduct the Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8 (1) of the Act. 6. The discharges a. The discriminatory discharge of Preston Daniels Preston Daniels was employed by the Respondent as a foreman in the spinning room until about 1 month prior to his discharge on August 12, 1946, at which time he was demoted to "second hand." A "second hand" is a supervisory employee. In its Order and Direction of Election in 15-R-1933 "second hands" were excluded from the unit found appropriate for the purposes of collective bargaining by the Board. In his speech of August 12, hereinbefore referred-to, Gerhart stated that one employee would be discharged immediately. Daniels testified that immediately following Gerhart's speech Daniels was called to the office where Gerhart said to him : MAGNOLIA COTTON MILL CO., INC. " , 115 I understand that you've joined the union, and you're trying 'to help organize a,union here, and we oughtn't to have a union here, the mill's took small. Gerhart then discharged Daniels. Gerhart testified that when he first assumed the management of the Re- spondent's plant in February 1946, he called a meeting of all supervisors and told; them "that some day, maybe never, the Union organizers might visit our plant and attempt to organize a Union, and if so that they, the supervisors, as a part of management, must maintain a strictly neutral attitude, and the best thing' to do would be to have no opinion whatsoever to express as to what they stood for, or where they stood, and if they were hemmed up and had to give some an- swer, to positively state that in their own personal opinion such a thing was so." Gerhart testified that these instructions were repeated at all subsequent periodically held meetings. Master Mechanic Herbert C. Parker testified that at the first meeting between, Gerhart and the Respondent's supervisors, and thereafter at "every meeting"" Gerhart told the supervisors : that the company did not have any weapon to use against organizations,, solicitors or organizers, and that they were to use to the best of their knowl- edge anything that they coulo get by with, without interfering with any organizers and could not use a weapon against them, and if they did have" anything to say, it was to be personal and not from the company. Parker was called as a witness by the Respondent. His testimony was not denied and is credited by the undersigned. The undersigned does not credit" Gerhart's testimony with reference to the instructions he gave the Respondent's supervisors regarding the Respondent's attitude in the event of any attempted' Union organization in the plant. It cannot be said that the Respondent's instructions tQ its supervisors as dis- closed by Parker's testimony in any manner constitutes an expression of neu- trality, on the contrary the instructions given to the Repondent's supervisors by, Manager Gerhart are a warning that a Union might appear on the scene, a warning that the Respondent had no legal method of combating such an or- ganization ; and an instruction that if and when such organizational activity 'became apparent the supervisors were "to use to the best of their knowledge any- thing that they could get by with" but that they should cover their activities by keeping their action "personal " The Respondent could and should have demanded "neutrality" from its super- visors in the union affairs of its employees, and thereby protect itself and any organization of its employees from the taint of employer domination ; however the record discloses that the Respondent was not interested in 'maintaining a strictly neutral position in the organizational activities of its employees. Daniels admitted that he attended foremen's meetings while he was a fore- man but denied doing so during the period he was a second hand; he further denied having heard Gerhart issue any "neutrality" instructions. The Respondent contends that it discharged Daniels because he violated its instructions to remain "neutral" in the organizational efforts of its employees, in this manner presumably jeopardizing the Respondent's position, and further that Daniels solicited members for the Union in the plant and threatened em- ployees with discharge if they refused to join. 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record is clear that Daniels did solicit members for the Union in the Respondent's plant but it is not conclusive that he threatened employees with discharge if they retused to join " The Respondent had a legal right to instruct its supervisory employees to re- frain from any Union activity among its rank-and-file employees in order to clearly maintain a neutral attitude but the record is clear that prior to August 12, it did not do so. By engaging merely in organizational activities of a character which the Respondent was entitled to stop, the supervisory employees did not forfeit their right to join and be represented by any labor organization of their choice; nor did they sacrifice the protection of Section 8 (3) of the Act which shields their exercise of that right from employer reprisal 'z The undersigned finds that the Respondent discharged Preston Daniels, on August 12, 1946, because of his membership in and activities on behalf of the Union, thereby discriminating with respect to his hire and tenure of employment and discouraging membership in a labor organization, and thereby has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. b. The alleged disci t ein atoi y discharge of Loitce Hendricks Loyce Hendricks was employed by the Respondent as a second hand. Hendricks was very active in behalf of the Union. $e was elected its president at the Union's first meeting. Hendricks testified that on Saturday, September 21, he told his foreman, Phillips, that he was suffering from a hernia and was contemplating an opera- tion. Phillips commented that the quicker Hendricks was operated on the better it would be. During the week end Hendricks arranged for financial assistance. He did not report for work Monday, September 23, and on the evening of that day called at Foreman Phillips' home to tell him of the date set for the operation and not finding Phillips at home Hendricks asked Mrs. Phillips to tell her husband that : .1` I [Hendricks] wanted to have my operation and I wanted to get off and get my business fixed up to go to the hospital, and if it would help them any I would tell them of a man in town they could get to work in my place. On the following day Hendricks told Phillips that the time had been set for his operation. 11 Rosie Looney testified that Daniels solicited her membership for the Union, and at the time told her If you don't join the union, and get you one of these cards, and you get fired, then we cannot help you to get your job back Burnedia Sinzms testified that Daniels solicited her for membership in the Union and that he told hei that if she did not join she "would be out of a job " Simms testified that at the time she was working on the second shift under Daniels supervision ; that the inci- dent occurred before the day Gerhart made the speech to the employees ; that she did not hear the speech and did not know of it until the day following its delivery , that she was tr.uisfeired to the first shift some time before the day of Gerhart's speech and was not working on the same shift with Daniels on August 12. Daniels testified credibly that he joined the Union on August 11, and had not heard of the organizational effort prior to August 11; that he made no threats to any employees. The record also shows that no solicitation for membeiship was made in the mill prior to August 12 On the state of the iecord the undersigned finds that Daniels solicited employees for Union membership and rejects Simms' testimony to the effect that Daniels threatened her with discharge in the event she refused to sign. '= See L Anthony & Sons Inc, 70 N L It B 717. MAGNOLIA COTTON MILL CO., INC. 117 Hendricks did not work during the week, and had not come in to work after his conversation with Mrs. Phillips . On Friday, September 27, Gerhart called at Hendricks' home. Hendricks lived in a "company house" in the mill village. Gerhart asked Hendricks to vacate the house ; the latter asked permission to stay, arguing that soon after his operation he would be able to return for light work which required no lifting but was told that there were no jobs in the mill which did not require lifting. The next day Hendricks called at the Respondent's office and told Gerhart that he would cancel the operation but Gerhart advised him not to do so and again told him to vacate the Respondent's house. Mrs. Chellie Phillips testified that on Monday, September 21, Hendricks called at. her home and asked her to tell her husband, Foreman Phillips, that Hendricks was "going to have an operation and would be off for a year and for him [Phillips ] to get some one else to work in his place on the job." Mrs. Phillips delivered the message to her husband. On the entire record the undersigned finds that the Respondent had reasonable ground for a belief that Hendricks voluntarily quit his employment and will recommend that the complaint be dismissed insofar as it alleges that Loyce Hendricks was discriminatorily discharged by the Respondent. c. The discrinvinatory discharge of Clifton Rogers Clifton Rogers was first employed by the Respondent 's predecessor in 1932 and continued in its employ until sometime in July 1939, at which time he voluntarily quit. He returned in June 1940, and remained with the company until 1943, at which time he was discharged after participating in a strike in the plant. Rogers was rehired in 1945, and was again discharged August 13, 1946. During the last year of his employment with the company Rogers was employed as a "card grinder." He had, in all , about 11/2 years' experience in this work. His work consisted of grinding cards, and fixing draw frames and roving frames. Rogers testified that grinding cards means grinding or smoothing the wires on the machine cylinder. This is done while the machine is running. Rogers testified that he ground one machine daily; that there were at the time of his employment 12 carding machines in the plant and that each machine required grinding once each month. In addition to his grinding work Rogers testified that he kept the picker machine, drawing frames and fine frames in repair. Rogers testified that the cotton must first pass through the carding room ; that the carding room was "always behind" in its work , but that at the time of his discharge (August 13) the card room production was no smaller than usual. Rogers attended the first Union meeting and was elected to the organizing committee. On August 13, at about 10 a. in., Rogers was called to the office, and told by Gerhart that his work was not satisfactory and was discharged. Rogers testified that his work had never been criticized before except that on one occasion approximately 30 days prior to his discharge he and employee Brewster, whose job was the same as Rogers' on another shift, were called into the office together for an interview. Apparently the two men did not cooperate and each had complained about the other. At this time they were told by Gerhart to work together in harmony. The Respondent contends that Rogers was discharged because he was incom- petent. 809095-49-vol 79-9 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gerhart testified that together with the grinding of cards Rogers was charged with keeping the.spindles in repair. Gerhart first testified that Rogers has charge of between! 750 or 800 spindles but under questioning by the Board's at- torney admitted-that Rogers was charged with keeping in repair between 1400 and 1500 spindles and that an average of 12 or 15 spindles were "down"' in June and July. _ Gerhart testified that in January 1946, the mill produced a weekly average of 34,000 yards of cloth. The. production rose to.60,000 yards in May and de- clined to 49,000 in August. After Rogers' discharge production declined in Sep- tember to 44,000 yards but during September according to Gerhart's testimony the Respondent was without a card room man for several weeks In November which is the last full month recorded, the production climbed to 54,000 yards and during one week of December 73,000 yards were recorded, although records for the full month were not given. Gerhart maintained in his testimony that the loss in production from the high of 60,000 yards in May to 49,000 yards in August was occasioned in large measure by Rogers' inefficiency and pointed to the 73,000 yards produced in December as. proof of his contention. However, Gerhart admitted that in July there was a general overhauling of all the machinery in the Respondent's plant, and that whereas while Rogers was employed in the card room a total of 12 machines were operated, the card room operation has been increased to 30 machines. Gerhart admitted that he had no experience whatever in cotton mill operation prior to assuming charge of the Respondent's plant as manager in February 1946_ At the time of his discharge Rogers' pay rate was 72 cents per hour. The undersigned is not persuaded by Gerhart's testimony that Rogers was an inefficient workman and that his incompetence caused a serious decline in the Respondent's production. On the entire record the undersigned finds that Rogers was not discharged because he was incompetent or because his incompetence caused a serious loss in production as contended by the Respondent, but that the reason advanced by the Respondent for Roggrs' discharge is a pretext to cover the real reason for his discharge which was in fact Rogers' membership in and activities on behalf of the Union."' The undersigned finds that the Respondent discharged Clifton Rogers, on August 13, 1946, because of his membership in and activities on behalf of the Union, thereby discriminating with respect to his hire and tenure of employment and discouraging membership in a labor organization, and thereby has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed` in Section 7 of the Act. d. The discriminatory discharge of Roy Waller Roy A. Waller testified that he is an ordained minister of the gospel and the pastor of two churches, one located approximately 25 miles from Magnolia, and one near El Dorado, Arkansas. - Waller testified that he was first employed by the Respondent 14 in April 1940, as. a boiler room fireman. Waller voluntarily quit in 1944. He was rehired in March 1945, as a weaver on the third shift. Approximately'! 6 weeks after his 13 The discharge having been made on the day following Gerhart's speech, its timing adds support to the above finding. 14 The undersigned treats the Respondent's predecessor as the Respondent . The Respond- enCs ' attorney instructed Waller on the record to treat the Respondent and' its predecessor as one company in his testimony. MAGNOLIA COTTON MILL CO., INC. 119 employment the shift was discontinued and Waller was laid off. In May or June he was again rehired as a third shift frame hand About 3 weeks after starting his job a strike occurred in the plant and the shift was discontinued- Waller, however, did not participate in the strike as it apparently occurred while Waller was off. Waller testified that sometime in July, Foremen Phillips and Sears called at Waller's home . Waller was not home but Phillips left a mes- sage: That he would like for me to come back and take a job sweeping, or he asked my wife would I come up and take a job sweeping until a better job opened up. Waller accordingly went to the plant and spoke to Sears , the foreman of the spinning room. According to Waller, Sears : -told me that he would like for me to go to work and sweep awhile until something else opened up ; that he needed a sweeper ; that he needed a man. Waller also talked to Superintendent Flynn. Waller testified : I told him I would take this job if he would give me a better job. Sweep- ing does not pay much , and he said he would as soon as he had a job opened, a fixing job or something better to do Waller testified that the day preceding the Union meeting he had a conversa- tion with one Brewster , a card room employee," who expressed disapproval of the Union . Later in the day Wailer had a conversation with Union Organizer Ross During the latter conversation Brewster and Foreman Phillips were present. In the course of this conversation Waller remarked : -I think labor should be organized . I have found that they have done good Waller did not attend the Union meeting of August 11, as he was away from Magnolia on that day and did not return until the night of August 18. Waller testified that he was absent from work by permission of Foreman Sears, whom he had told at the time the latter employed him as a sweeper that he could not work during the week of August 11 to 17. because Waller would be conducting a revival meeting at that time and that Sears told him that "it would be all right. They could get some one until I [Waller ] come back to work." Waller returned to work, Monday, August 19, and was informed by Foreman Aldridge that he was compelled to dismiss him at Gerhart's orders. Aldridge expressed regret at the order and stated that he did not know the reason therefor However, Superintendent Flynn told Waller that lie was being dismissed because a returned veteran, who was entitled to reemployment , had claimed Waller's job. Two or three days after his discharge Waller again asked Flynn for em- ployment and was told that nothing was available and further that the returned veteran had not taken the job Waller had previously filled, but that it had now been given to an "old man they had to take care of, as he was all crippled up." Waller made several further attempts to obtain employment at the plant. On one occasion at approximately 10 p. in., while ,Waller was waiting in the mill in order to interview a night shift foreman regarding employment , Gerhart entered the room. Regarding what followed . Waller testified : Well it is not pleasant to tell. Mr. Gerhart come up and ordered me- out. Q. What did Mr. Gerhart say to you? '^ Evidently Biewster. 120 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. He showed me the door and said, "Waller, we don't need you now, and never will." Waller further testified : Q. Had anything been said about your work being temporary when you were hired? A. No, sir, nothing. Waller's above-related testimony was in no way controverted and is credited by the undersigned. None of the Respondent's officials named in Waller's testimony except Gerhart were called to testify. Gerhart testified as follows : A. Well, I did not hire him personally, but according to what was told by. my superintendent, who did handle the transaction, it was like this : We had another preacher on the job, working with the night overseer, Mr. Sears. I think that preacher 's name was Preacher Hatch. He came to Mr. Sears and told him that he would like to get off for ten days to attend a circuit meeting. Mr. Sears told him that it would be perfectly all right to get off if he would make it all right with Mr. Flynn . Preacher Hatch went to the superintendent and told him that he would like to get off for ten days to attend a circuit meeting, and that Mr. Sears said it would be all right if it was all right with Mr. Flynn. Mr. Flynn said, "get somebody to work in your place. Can you get somebody to work?" He said, "I am sure I can get Roy Waller". Mr. Flynn said, "Go ahead and get him and send for him to come and take your place when you are gone". In ten days or maybe two weeks, Mr. Hatch returned and took over the job Roy Waller had been doing-sweeping-and instead of turning Mr. Waller off then, they let him stay on. In the meantime Mr. Flynn did come to me and tell me that a fellow by the name of Smith, an ex-G. I., had gone to the service from the mill, and that he had come to him that morning and asked for his job back at the mill, and Mr. Flynn said there was nothing he could do since the law said to give the jobs back to the G. Is, and that he told him to report Mon- day morning instead of Mr. Waller. That being the circumstances he could not use him any longer. In the meantime, the following Monday` morning, Mr. Smith, the G. I. did not report, and instead of sending for Mr. Waller and putting him on again, we took another man on the job and put him in that place, and did not hire anybody in Mr. Waller's place. He had been strictly hired as a temporary worker, according to my understanding. Q. He was not discharged for union activities? A. No, sir. Waller and Gerhart both testified that some time after his discharge Waller was given and accepted a release which bore the words "temporary worker." Concluding findings on the discharge of Roy A. Waller Waller is an ordained minister and as such enjoys the respect of his fellow workers. The Respondent had knowledge of his sympathetic attitude toward the Union . Considering Waller's status , no clearer notice of his antagonism to the Union could be given its employees by the Respondent than Waller's dis- charge. The record is clear that Waller was employed for a very minor job, that he had experience in other jobs, and that there was a clear understanding that he would be given a better job when one became available . That his job was not temporary is shown by the fact that he was retained on it after the MAGNOLIA COTTON MILL CO., INC. 121 employee whom he allegedly merely relieved returned to %voik. Absent the fact that Waller had expressed approval of the Union, the undersigned is convinced that he would not have been denied employment when the returned veteran who claimed the job he was performing failed to accept it. There need have been no break in Waller's employment at all. Upon the entire record the under- signed finds that Waller was discharged by the Respondent on August 19, 1946, because of his expressed adherence to the Union and that thereby the Respond- ent discriminated in his hire and tenure of employment and discouraged mem- bership in a labor organization and that thereby the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. e. The diserirnAnatory descharge of 0zie Stephens 14 Ozie Stephens testified that he was first employed by the Respondent's pred- ecessor on September 10, 1942, and continued in uninterrupted employment in the plant until November 6, 1947. For a period of 3 years preceding the ter- mination of his employment with the Respondent, Stephens operated a slasher, which is an operation on material prior to its going into the weaving room The slasher was a two-man operation, Stephens and one Billy Wilson being engaged in this work. The slasher operated only one shift. It had at one time been operated by Stephens alone, with some casual help, but for some 8 or 9 months Stephens and Wilson had worked together at the job. During the morn- ing of November 6, Stephens learned that Wilson intended to quit, but did not mention the fact to his foreman. Stephens testified that later in the day his foreman, Ray Machen, come to his place of work and according to Stephens : He come up and laughed in my face and told me, "Stephens, Wilson is going to quit This is his last day, and you're going to have to run it by yourself." I said, "Well, ain't I going to get more money for running it by myself 9" And he says, "No, you're going to run it by yourself for the same money." And I Lip and told him, "Well I feel I ought to have 80 cents and [sic] hour." Stephens also told Foreman Machen that the "would need more money if I inn it by myself or a helper" Machen then stated that he would see Gerhart. Later Machen returned and told Stephens that "Gerhart said if I [Stephens] couldn't run it for the same money, I would have to go home and stay there." Stephens further testified, "After my quitting time I went home and stayed there." Machen testified : I passed through the slasher room. I had been to lunch. I go to lunch around eleven or 11: 30, and he stopped me and told me that if they did not raise his wages he would not be in in the morning, and to go to Mr. Gerhart and get him to give him a helper. Machen testified that he then told Stephens that he did not wish to go to Gerhart but that Stephens insisted that he do so Machen went to Gerhart and repeated his conversation with Stephens to him, who then according to Machen : Told me to tell him [Stephens] that he need not come in in the morning or any other morning if that was the way he felt. "Referred to as " Stevens" in the complaint and variously designated " Stephens" and "Stevens" in the record 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Machen then reported Gerhart's order to Stephens Machen testified that Stephens demanded a raise and a helper and also denied that he laughed at Stephens. Machen further testified that he expected to furnish Stephens with a helper but that he did not tell him so because : That was my business. It was not his He was supposed to wait and come in the next morning and find out if he was going to have a helper, isn't he? Machen also testified that Stephens ' work had not been satisfactory during all the 3-year period he worked as a slasher. Gerhart testified that Maclien informed him of Stephens' "ultimatum" and that he then told Machen that if Stephens was attempting "to dominate things, he can get out of the house and need not come back tomorrow or any other time." Stephens impressed the undersigned as a wholly truthful and forthright wit- ness. Machen did not impress the undersigned as truthful The undersigned therefore credits Stephens' testimony and does not credit Machen . The under- signed finds that Stephens upon being told by Machen that he was thereafter expected to operate a two-mau job alone requested either a helper or a raise in pay and did not threaten to quit. The Respondent 's contention that Stephens voluntarily quit after delivering an ultimatum is without merit. On the entire record the-undersigned is persuaded that the Respondent constructively dis- charged Stephens . The undersigned so finds. The record is clear that upon being confronted with an order to thereafter operate a 2-man job alone , Stephens requested either a raise in pay or a helper. The Respondent refused the pay raise but although it intended to furnish a helper on the job it withheld this vital information from Stephens . The under- signed is convinced and finds that the Respondent had but one purpose in so do- ing, namely to create a condition which would cause Stephens to quit. Gerhart's admission that he treated Stephens ' request as an "ultimatum"; the manner in which Machen delivered Gerhart's message to Stephens, making it -appear as a discharge ; and the manner in which Machen first broke the news .to Stephens, by laughing at him and telling him that as Wilson had quit Stephens -would now "run it by yourself and for the same money," as well as the deliberate -withholding from Stephens the fact that a helper would be furnished ; all clearly 'show the Respondent's intention, which was to force Stephens "to go home and stay there." The undersigned does not credit the testimony of Foreman Machen to the' effect that Stephens was an incompetent workman throughout the entire 3-year period he operated the slasher and finds that the matter of Stephens' compe- tence did not enter into his discharge. The undersigned finds that the Respondent constructively discharged Ozie Stephens on November 6, 1946, because of his membership in and activities on behalf of the Union and thereby has discriminated in regard to his hire and tenure of employment and has discouraged membership in a labor organization and thereby interfered with, restrained and coerced its employees in rights guaranteed in Section 7 of the Act. The undersigned further concludes and finds that, comprehensively, the con- duct of the Respondent, as found herein, interfered with the election of February 28, 1947, and that the Respondent's conduct so affected the election that it did not fairly reflect the free will of the Respondent's employees. MAGNOLIA COTTON MILL CO., INC. 123 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 ob- structing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in and is engaging in unfair labor practices affecting commerce, it will be recommended that it cease and desist therefrom and take certain affirmative action which the undersigned finds is necessary to effectuate the policies of the Act Having found that the Respondent discriminated in regard to the hire and tenure of employment of Preston Daniels, Clifton Rogers, and Ozie Stephens, because of their membership in and activities on behalf of the Union, and dis- criminated in regard to the hire and tenure of employment Roy A. Waller, be- cause he expressed approval of the Union, it will be recommended that the Re- spondent offer each of them immediate and full reinstatement to their former or 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 by reason of such discrimination, by payment to each of them of a sum of money equal to that which each would have earned as wages from the date of the discriminatory discharge to the date of the offer of reinstatement , less his net earnings " during that period. Inasmuch as a discharge of an employee for reasons of union affiliation or activity is one of the most effective methods of defeating the exercise by em- ployees of their right of self-organization," such conduct justifies an order re- quiring an employer to cease and desist from infringing upon any of the rights guaranteed by the Act. The undersigned recommends therefore, in order that the preventive purposes of the Act not be thwarted and that the interdependent guarantees of Section 7 be made effective, that the Respondent be required to ,cease and desist from in any manner infringing upon the rights so guaranteed. Since it has been found that the conduct of the Respondent has so affected the Board-conducted election on February 28, 1947, that it did not fairly reflect the free will of the Respondent's employees, it will be recommended that the election and result thereof be set aside. On the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. United Textile Workers of America, A. F. L, 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 the Act. 11 In accordance with the Board' s consistent interpretation of the term , the expression "former or substantially equivalent position" is intended to mean "former position wher- ever possible, but if such position is no longer in existence, then to a substantially equiva- lent positi"n " See Matter of The Chase National Bank of the City of New York , San Juan, Puerto Rico, B9anch, 65 N. L R B. 827. 18 See Matter of Crossett Lumber Co , 8 N. L. R B. 440, 497-498. m See N . L. R. B. v. Entwistle Manufacturing Co., 120 F. ( 2d) 532, 536 (C. C. A. 4). 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3 By discriminating in regard to the hire and tenure of employment of Preston Daniels, Clifton Rogers, Ozie Stephens, and Roy A. Waller, thereby discouraging membership in a labor organization, the Respondent engaged in and is engaging in unfair labor practices within the meaning of Section S (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent has not engaged in unfair labor practices within the mean- ing of Section 8 (3) of the Act with regard to the termination of the employment of Loyce Hendricks. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the Respondent, Magnolia Cotton Mill Co. Inc., also known as Cotton Mill Division of N. & W. Overall Company, Inc, Magnolia, Arkansas, its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in United Textile Workers of America, A. F. L, or in any other labor organization of its employees, by discharging and refusing to reinstate any of its employees, or in any other manner discriminating in re- gard to their hire or tenure of employment, or any term or condition of employ- ment ; and (b) 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 the above-named labor, organization 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. 2. Take the following affirmative action which the undersigned finds will effectu- ate the policies of the Act : (a) Offer to Preston Daniels, Clifton Rogers, Ozie Stephens, and Roy A. Waller, immediate and full reinstatement to their former or substantially equivalent posi- tions without prejudice to their seniority and other rights and privileges, in the manner set forth in "The remedy" ; (b) Make whole Preston Daniels, Clifton Rogers, Ozie Stephens, and Roy A. Waller in the manner set forth in "The remedy" for any loss of earnings they may have suffered by reason of the discrimination practiced against them ; (c) Post at its plant at Magnolia, Arkansas, copies of the notice attached hereto and marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by the Respond- ent's representatives, be posted by the Respondent immediately upon receipt thereof and be maintained by it for at least sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to insure • that such notices are not altered, defaced, or covered by any other material ; (d) Notify the Regional Director for the Fifteenth Region (New Orleans, Louisiana), in writing within ten (10) days from the date of the receipt of this Intermediate Report what steps the Respondent has taken to comply herewith. It is also recommended that the election of February 28, 1947, and the result thereof be set aside. It is further recommended that, unless on or before ten (10) days from the date of the receipt of this Intermediate Report, the Respondent notifies said Regional. Director in writing that it will comply with the foregoing recommenda- 1IAGNOLIA COTTON MILL CO., INC. - ' 1 • 125 tions, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. It is further recommended that the complaint be dismissed insofar as it alleges that the Respondent discriminatorily discharged Loyce Hendricks. As provided in Section 203 39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel for the Board may, within fifteen (15) days from the date of service of the order transferring the case to the Board, pursuant to Section 203 38 of said Rules and Regulations, file with the Board, Rochambeau Building, Wash- ington 25: 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 ; and any party or counsel for the Board may, within the same period, file an original and four copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.65. As further provided in said Section 203.39, 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 service of the order transferring the case to the Board. Louis PLOST, gearing Examiner. Dated July 7, 1947. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Intermediate Report and Recommended Decision of a Hearing Examiner 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 in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organ- izations, to join or assist TEXTILE WORKERS INTERNATIONAL UNION, A F. L, or any other labor organization, to bargain collectively through representa- tives,of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL OFFER to the employees named below immediate and full rein- statement to their former or substantially equivalent positions without preju- dice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Preston Daniels Clifton Rogers Roy A. Waller Ozie Stephens All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. MAGNOLIA COTTON MILLS CO, INC., also known as MAGNOLIA COTTON MILL DIVISION OF N. & W. OVERALL COMPANY, 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 11