Cookeville Shirt Co.

In the Matter Of COOKEVILLE SHIRT COMPANY AND P. M. FRENCH and UNITED GARMENT WORKERS OF AMERICA, LOCAL UNION No. 323, A. F. OF L. Caae'No. -10-C-1942-Decided September 15,1948 DECISION AND ORDER On September 25, 1947, Trial Examiner Thomas S. Wilson issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents, Cookeville Shirt Company and P. M. French, had engaged and were engaging in certain unfair labor practices' and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondents filed exceptions to the Intermediate Report, together with a supporting brief, and moved to dismiss the complaint. Counsel for the Board also filed exceptions to the Intermediate Report. The Board 2 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed." The Respondents' motion, filed with the Board, to dismiss the complaint alleges that certain of the charges in this case were filed with respect to unfair labor practices which 3 Those provisions of Section 8 (1), 8 (3 ), and 8 (5) of the National Labor Relations Act, which the Trial Examiner herein found were violated , are continued in Section 8 (a) (1), 8 (a) (3), and 8 (a) (5) of the Act, as amended by Labor Management Relations Act, 1947. 2,Pursuant to the proylslops ., oP Section 3 (b) of the Act, as amended , the Board has delegated its powers in connection with this case to a three -man panel consisting of the undersigned Board Members [ Houston , Reynolds, and Gray]. 3 The Respondents excepted to the Examiner's action in granting the motion of counsel for the Board that the allegations in the complaint with respect to Ray Vaughn, who at the time of the hearing was in military service, be dismissed without prejudice. This exception is overruled. The Board , on August 16, 1948, was advised by the Regional Director that on October 31, 1947, upon his discharge from military service, Ray Vaughn filed a charge in his own behalf in Case No. 10-CA-102 and that a complaint has issued in that case . The Regional Director therefore requested the Board to reopen and remand the instant case and con- solidate it with Case No. 10-CA-102 for the purposes of hearing . This request has been denied. 79 N. L. R.B,No.88. 667 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD antedated the charges by more than 6 months, and that under Section 10 (b) of the amended Act' the Board had no authority to issue the complaint in the instant case insofar as it is based on those charges. This motion is denied for the reasons indicated in an earlier decision.4 The Board has considered the Intermediate Report, the exceptions of the Respondents and, of counsel for the Board ,5 and the entire record in this case. To the extent that they are consistent with this Decision and Order, the Board adopts the findings, conclusions, and recommendations of the Trial Examiner. 1. The Trial Examiner found that the speeches delivered by the Respondent P. M. French to the employees on April 12 and 15, 1946, contained implied threats to dlscliai'ge the employees and to remove the plant if the Union won the election, which was to be held on April 16, 1946. We do not agree with the Trial Examiner's interpre- tation of French's remarks and, accordingly, find that these speeches contained no implied threats of * economic reprisals and were not unlawful. 2. The Trial Examiner foimd that the shut-down of April '18, 1946, interfered 'with, restrained, and coerced the employees aild that its purpose was to indicate the Respondent's' displeasure at the results of the election of April 16, which was'won by the Union. The Examiner, accordingly, concluded that the shut-down was unlawful However, despite the- suspicious timing of the April 18 shut-down; vis-a-vis the election, v. e are unable to find on the preponderance of the evidence that it constitiited•-a violation of the Act.' We believe that the production bottlenecks, which - the Trial Examiner found to exist at that time, amply account for that shut-down as well as for subsequent curtailments of operations up to June 1, 1946.7 The un- contradicted evidence shows that during these shut-downs the inspec- tion department and,pressing room, where the bottlenecks existed, con- tinued to operate full time excep't•for a.period of 11 hours. during Matter of Briggs Manufacturing Company, 75 N. L. R. B 569 The Respondents' request for oral argument before the Board is,also denied as•the•issues and the contentions `cif the parties are fully set forth in the record and briefs. ' Counsel for the Board excepted to the failure of the Examiner to find that the shut- down and lay-offs between April 18 and September 9. 1946, violated Section 8 (1) and 8 (3) of'the Act , and'to the Examiner's refusal to issue a blanket order against Respond- ent French requiring him to desist from unfair labor practices in plants other than the one here involved. These exceptions are overruled for reasons set forth below. 6 Although it is a suspicious circumstance, we do not find persuasive the evidence of the statement made on April 18. by Mattee Jernigan , head forelady of the sewing departments, attributing the shut-down of that date to' the fact that the employees affected thereby had voted in the election of April 16. So far as the record indicates Jernigan 's interpretation of the shut-down may have been mere conjectuie on her part. - 7 As for the reductions in operations between June 17 and September 9, 1946, we find, contrary to the contention of counsel for the Board , that they were not ,based on anti-union considerations , but were due to material shortages. COOKEVILLE SHIRT COMPANY 669 which the-inspectors were laid off. We are satisfied that this lay-off of the inspectors, as testified by Plant Superintendent Glenn, was necessary to give the pressers an opportunity to reduce their growing backlog. 3. We do not agree with the Examiner's conclusion that the dis- charges of Herbert Lawson, Nettie Johnson, Frances Neal, and Dimple Warren were discriminatory. We shall, therefore, dismiss the com- plaint as to them. Herbert Lawson The record fails to establish athrnlatively any anti-union niotiva- tion for Lawson's discharge. Lawson himself was not a member of, or active on behalf of, the Union. The Examiner found, however, that he was discharged for refusing to suppress union activity among the employees in the cutting room, of which he was foreman. But it appears from the excerpts of the pertinent testimony set forth in the Intermediate Report, when read in their context, that the only union activity in the cutting room which Glenn objected to, and ordered Lawson to suppress, consisted of discussion and solicitation during working hours .8 Accordingly, even if Lawson was discharged, as the Examiner finds, for countenancing such activity, his discharge would not, in our opinion, be unlawful. Nettie Johnson and Frances [Veal Both these employees were discharged under parallel circumstances. .Both joined the Union about the middle of February 1946; neither was active iii union a ft airs. Both were discharged about the same time, Johnson on May 29, 1946, and Neal on June 5, 1946. Both admitted that the quality of their work had been repeatedly criticized by Glenn and Jernigan. The Trial Examiner found that Neal's work was de- ficient in both quantity and quality. As to Johnson, while finding that her output was quantitatively adequate, the Examiner did not make any express finding with respect to the Respondents' contention that her work was of unsatisfactory quality. This contention is supported by convincing evidence in the record. We find, therefore, that the Respondent Corporation had legitimate reasons for discharging both these employees. That they were, in fact, discharged because of their poor work is established, in our opinion, by the fact that both were discharged only after they had refused to promise to try to improve ' Even Glenn's suggestion to Lawson that he emulate a cutting room foreman in a union- shop plant who had "got rid" of some of his cutters, was tied in with Glenn's complaint about union activity by Lawson's cutters duaing working hours. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their work,9 and by the further fact, as found by the Examiner, that French, shortly after Johnson's discharge, offered her reemployment, which she declined, and that he also gave Neal an opportunity to dis- cuss her discharge, which opportunity she rejected. As against this persuasive evidence that Johnson and Neal were discharged for inefficiency, the only evidence of possible anti-union motivation for their discharge consists of the fact that they, together with many of the other employees, were members of the Union and wore union buttons. On this record we do not believe that there is sufficient basis for a finding that their. discharge was discriminatory. Dimple Warren The Respondents contended that Dimple Warreii was discharged for talking and calling for work in too loud- a voice, for leaving her machine before quitting time, and for bad work. The Examiner discounted the evidence adduced in support of these contentions largely because of the fact that Warren for the most part met, or exceeded, her production quota. However, the only affirmative evidence of anti-union motivation cited by the Examiner consists of . the fact that she was known to Glenn to be a member of the Union, and had distributed and collected a few union cards. On the entire record we do not find sufficient basis for holding the discharge to be unlawful. 4. The Trial Examiner's conclusion that the Respondents violated Section 8 (5) of the Act is amply supported by the record. The unilateral wage increase of October 25, 1946, announced by French to the employees without prior notice to the Union, was per se a violation of Section 8 (5). It'is no defense, under the circumstances, that wage increases were granted simultaneously in certain other plants with which Respondent French was connected 10 In addition, the Respondents' insistence on the Union's furnishing an indemnity bond as a condition of the execution of any binding agreement was evidence of bad faith.1' Further evidence of bad faith is afforded by the Respondents' insistence, at least during the early stages of the negotiations, that, despite the Board's certification of the Union as Y we think it significant that on the same day that Johnson was discharged, after discovery of a defective bundle attributed to her and her refusal to promise improvement, Neal, who was also charged by Glenn with defective work in connection with the same bundle, was retained after giving the promise which Johnson had withheld . It was only after Neal failed to show improvement and declined to repeat her promise to try to do better, that she was finally discharged on June 5, 1946. 10 May Dept. Stores v. N. L R B., 326 U . S 376, 385. 11 Matter of Scripto Manufacturing Company, 36 N. L. It. B . 411, 421 ; Matter of Benson Produce Co., 71 N. L. It. B. 888. t COOKEVILLE SHIRT COMPANY 671 the exclusive representative of all the employees in the unit, the Union be. recognized as the representative of its members only.12 .' . Thus, we agree with the Examiner's conclusion that the Respondents refused to bargain in violation of the Act; however, we find that this violation first occurred on October 25, 1946, and not, as the Examiner found, on September 28, 1946. While the first bargaining conference took place on the latter date, the Respondents at that meeting, upon seeing the Union's proposals for the first time, requested (and ob- tained) more time to consider these proposals. This was a reasonable request and we do not consider it as in itself a refusal to bargain, or as reflecting on the Respondents' good faith. We find, therefore, that on and after October 25, 1946, the Respond- ents violated Section 8 (5) and (1) of the Act. 5. Respondent French was vice president of the Respondent Cor- poration and represented it in its negotiations with the Union. It is clear, therefore, that he was acting in the interest and'as an agent of the. Respondent Corporation. We therefore find him to be an "em- ployer" within the definition of that term in Section 2 (2) both of the original Act and of the amended Act. In this view it is not neces- sary, as counsel for French contends, to find that French, himself, is engaged in interstate commerce." - In view of the prominent role played by French in connection with the Respondent Corporation's violation of Section 8' (5) and (1) we find it necessary, in order to effectuate the policies of the Act, to adopt the Examiner's recommendation and direct our remedial order against French, as well as against the Respondent Corporation 14 - The Examiner expressed the view that if, in certain other cases, involving other plants with which French is associated, the Board should sustain the findings made by the Trial Examiners therein, that French engaged in, or was responsible for, unfair labor practices at those plants, the Board should in the instant - case, issue a blanket order that French cease and desist from engaging in unfair labor practices not only at the Cookeville plant but also in all the other 18 or 20 plants of which he is an officer. We do not believe, however, that it would be appropriate to issue such a blanket order in this case.15 " National Licorice Co. v N. L. R. B.; 309 U. S . 350, 358 While the Respondents during the course of the negotiations receded from this position, their defiance , even though temporary , of the express statutory direction to bargain with the Union as the exclusive representative of all the employees in the unit, indicates a dis- position to avoid their responsibilities under Section 8 (5) of the Act. 13 French's counsel correctly points out that the Trial Examiner erred in imputing to French an admission that he ,was engaged in, commerce. 14 Matter of Republican Publishing Company, 73 N. L. R. B. 1085; Matter of Holtville Ice and Cold Storage Company, 61 N. L. R. B. 596. 31 See Reliance Manufacturing Company v. N. L. R. B., 125 F. (2d) 311, 321 (C. C. A. 7). 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Remedy The Examiner, among other measures designed to effectuate the policies of the Act, recommended that the Board direct the Respond- ents, upon request, to bargain collectively with the Union as the ex- clusive representative of the employees in the appropriate unit. How- ever, the Union has not complied with the provisions of Section 9 (f), (g),' and (h) of the Act, as amended. Accordingly, for reasons set forth in prior decisions, our Order directing the Respondents to bar- gain with the Union will be conditioned upon compliance by the Union with the above-cited Section of the Act, as amended, within thirty (30) days from the date of the Order herein. e ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Cookeville Shirt Company, Cookeville, Tennessee, its officers, agents, successors, and assigns, and the Respondent P. M. French, acting in the interest of Cookeville Shirt Company, and his agents, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with United Garment Work- ers of America, Local Union No. 323, A. F. of L., if and when said labor organization shall have complied within thirty (30) days from the date of this Order with the filing requirements of Section 9 of the National Labor Relations Act, as amended, as the exclusive repre- sentative of all employees of the Respondent, Cookeville Shirt Com- pany, at the Cookeville plant, excluding guards, watchmen, clerical and maintenance employees, and all supervisors as defined in the Act; fib) In any other manner interfering with the efforts of United `Garment Workers of America, Local Union No. 323, A. F. of L., to negotiate for, or to represent, the employees in the aforesaid bargain- ing unit as their exclusive bargaining agent, if and when said labor organization has complied with the filing requirements of the amended Act, as hereinabove set forth. 2. Take the fo11o,,"-ing affirmative action, which the Board finds.will effectuate the policies of the Act : (a) Upon request, and upon compliance by the Union with the filing requirements of the Act, as amended, in the manner set forth above, bargain collectively with United Garment Workers of America, Local u Matter of Marshall and Bruce Company , 75 N L. R. B. 90. COOKEVILLE SFIIRT COMPANY 673 Union No. 323, A. F. of L., as the exclusive representative of all the employees in the aforesaid appropriate unit; (b) Post at the plant of Respondent Corporation at Cookeville, Tennessee, copies of the notice attached hereto, marked "Appendix A." 17 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, after being signed by the Respondents' repre- sentative, shall be posted by the Respondents immediately upon receipt thereof, and maintained by them for at least 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 Respondents to insure that said notices are not altered, defaced, or covered by any other material; (c) Notify the Regional Director for the Tenth Region in writing within ten (10) days from the date of the receipt of this Order, and again within ten (10) days from the future date, if any, on which the Respondents are officially notified that United Garment Workers of America, Local Union No. 323, A. F. of L., has met the conditions set forth above, what steps the Respondents have taken to comply herewith. IT Is FURTHER ORDERED that in all other respects the complaint be, and it hereby is, dismissed, the dismissal as to Ray Vaughn being with- out prejudice. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order cf the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: AVE WILL BARGAIN collectively upon request with UNITED GAR- MENT WORKERS OF AMERICA, LOCAL UNION No. 323, A. F. OF L., as the exclusive representative of all employees in the bargaining unit described below with respect to rates of pay, hours of em- ployment, or other conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agree- ment, provided said labor organization, within thirty (30) days from the date of the aforesaid order of the Board, complies with the filing requirements of Section 9 of the National Labor Rela- tions Act, as amended. The bargaining unit is: 11 In the event that 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 " 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All employees of the Respondent, Cookeville Shirt.Company, employed in the Cookeville plant, excluding guards,. watchmen, clerical and maintenance employees, and all supervisors as defined in the Act. COOKEVILLE SHIRT COMPANY AND P. M. FRENCH Employer Dated-------------------- By -------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. INTERMEDIATE REPORT Mr. Will/iam M. Pate, for the Board. 11118s Mary L. Johnson, of Cookeville, Tenn., for the Union. Messrs. A. H. Roberts , Jr., and Carmack Cochran, of Nashville, Tenn., for the Respondents. STATEMENT OF THE CASE Upon a second amended charge duly filed March 24, 1947 , and upon a supple- mental charge duly filed March 31, 1947, against Cookeville Shirt Company and P. M. French , herein called the Respondents, by United Garment Workers of America, Local Union No. 323, A. F. of L., herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Tenth Region ( Atlanta, Georgia ), issued its complaint dated March 26, 1947, and amendment to complaint dated March 31, 1947 , alleging that the Respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3) and ( 5) and Section 2 (6) and ( 7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint , amendment to the complaint and notice of hearing thereon were duly served upon the Respondents and the Union. With respect to the unfair labor practices the complaint and amendment to the complaint alleged in substance that the Respondents : ( 1) by various enumer- ated acts had interfered with, restrained and coerced its employees in violation of Section 8 (1) of the Act ; ( 2) had discharged and thereafter failed or refused to reinstate Ray Vaughn on February 26, 1946 ,' Herbert Lawson on April 17, 1946, Jimmy Ragland on May 3, 1946 , Nettie Johnson on May 29, 1946 , Frances Neal on June 5, 1946, and Dimple Warren on October 23, 1946, because said employees joined or assisted the Union or engaged in concerted activities with the other employees for the purposes of collective bargaining or other mutual aid or protection ; and (3) on or about September 28, 1946, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of all the employees of the Respondents employed at its Cookeville plant, exclud- ing guards, watchmen , clerical, maintenance and all supervisory employees with 1 At the time of the hearing Ray Vaughn was in the United States Army in Japan At the end of the hearing upon motion of the attorney for the Board and over the objection of the Respondents, the undersigned dismissed -the complaint as to Ray Vaughn without prejudice because no evidence had been presented bearing on his alleged discharge due to his absence from the country. COOKEVILLE SHIRT COMPANY - 675 the authority to hire, promote, discharge, discipline or otherwise effect changes in the status of employees or effectively recommend such action, although said Union had been certified on August 20, 1946, as such representative. On April 7, 1947, Respondent Cookeville Shirt Company, and on April 17, 1947, Respondent French filed answers admitting certain allegations of the com- plaint and amendment to complaint but denying the commission of any unfair labor practices. . Pursuant to notice, a hearing was held at Cookeville, Tennessee, from April 21 to April. 29, 1947, inclusive, before the undersigned, the Trial Examiner duly designated by the Chief Trial Examiner . The Board and the Respondents were represented by counsel and the Union by its representative. Full opportunity to be heard, to examine and cross-examine witnesses and to introduce evidence bearing upon the issues was afforded all parties. At the conclusion of the case the Respondents moved to strike the testimony of Herbert Lawson and Jimmy Ragland on the ground that their testimony covered confidential matter given to them as supervisory employees of the Respondents. This motion was denied. At the conclusion of the hearing all parties waived their right to oral argument. Subsequently briefs on behalf of each Respondent have been received. Upon the entire record and his observation of the witnesses, the undersigned makes the following : FINDINGS OF FAOr I. THE BUSINESS OF THE RESPONDENTS The Respondent, Cookeville Shirt Company, is a corporation organized and existing under and by virtue of the laws of the State of Tennessee. Respondent French is a vice-president of the Respondent Cookeville Shirt Company. At all times material hereto Respondent Cookeville Shirt Company has maintained its principal office and place of business at Cookeville, Tennessee, herein called the Cookeville plant, and is now and has been continuously engaged at said plant in the manufacture, sale and distribution of garments under contract for other companies. In the course and conduct of its business operations during the year ending March 15, 1947, Respondent Cookeville Shirt Company purchased raw materials of value of approximately $100,000, of which approximately 50 percent was purchased at points outside the State of Tennessee, and shipped to the Cookeville plant. During the same period Respondent Cookeville Shirt Com- pany sold finished products at a value in excess of $100,000, of which approxi- mately 75 percent was sold and shipped to customers outside the State of Ten- nessee. The Respondents' answers admit that they are engaged in interstate commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED United Garment Workers of America, Local Union No. 323, affiliated with the American Federation of Labor, is a labor organization admitting to membership employees of the Respondents. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint and coercion Early in February 1946, the Union began a successful attempt to organize the employees of the Respondents' Cookeville plant. 676 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD Thomas Padgett Glenn , who became superintendent of the Cookeville plant on February 1, 1946, was promptly notified by the hotel clerk in-Cookeville that a union organizer was in Cookeville attempting to organize the Respondents' employees. On February 25, 1946. Respondents received a letter from the Union in which it'claimed to-represent a majority of the Respondents ' employees and requested recognition as the bargaining agent for - said employees. This letter was dated February 22. Glenn promptly forwarded it to P. M French, Respondent's vice- president , who lived in Nashville , Tennessee, for answer . French was in charge of labor relations at the Cookeville plant. On April 11 Herbert Lawson, then foreman of the cutting room, told Glenn privately that he understood that the Union was attempting to organize Re- spondents' employees, but Glenn informed him that he already had heard that and that that should not prevent them from getting their job done. On April 12 Respondents received notification from the Board that an election would be held on April 16 to determine the question of representation presented by the Union At 11: 20 a m. on April 12, 1946, P. M. French had the employees of the Re- spondents called together on company time and property for the purpose of dis- cussing the Respondents' views on the coming election with them. French's speech on this occasion was openly anti-union starting with an appeal to the employees that they were "too intelligent" to require the Union to bargain for them and thus be "separated" from management. He stressed the figures of the National Association of Manufacturers on the loss in man-da3,s of work and in, money value through union strikes since.V-J Day, and then told a story indicat-, ing that the Union representative had not "promised" to do anything for the Respondents' employees, but would continue collecting dues from them just the same. French stated that the employees could use this money to much better purpose than paying the Union for doing nothing. French told the employees the following: "The Union has more money than any corporation in the United States. They have more cash, more assets than Du Pont, General Electric, or any, other large corporation " Y He then called attention to the fact that one of his . plants had closed down from November to March allegedly because the factory from which it purchased piece goods was closed by a strike. He spoke about the, minimum wage law which he claimed that he had fought for and ended that part of the speech with "can I pay you folks 60 cents per hour and my competitor pay 40 cents and stay in business?" This last statement contained-the punch line of French's talk. At 3: 00 p. in on Monday, April 15, the day before the election, French re- turned, had the employees congregated on company time and property and made. them another anti-union talk. After two short introductory paragraphs, French stated : "Another thing that I have' heard is that some of you employees are afraid to express your views, that you have been told that you would be charged with unfair labor practices. That is silly. I am the one that will be charged with unfair labor practices. It won't be you folks-it will be me. I know what their procedure is and that is bluff and scare. They can't do that to me. We will' be right here. I am not going to be guilty because I am not going to threaten you." He then proceeded to scare the employees with tales of the "free and easy" use of the employees' dues by unions, of luxurious living by the union organizers, 2 At the hearing French acknowledged that he had no authority for this statement and: that it was probably incorrect. i. COO.KEVILLE SHIRT COMPANY 677 files of paying "tribute" to unions for the privilege of working, of huge initiation fees, of the impossibility of employers giving jobs to friends and relations of the employees after a union had secured a closed shop contract (which, incidentally, French had stated he would never agree to during his previous speech.) French related alleged incidents of perfidious treatment of employees by unions who *ere charged huge initiation fees for the "privilege" of working and promptly- expelled from the Union on various excuses after the fee had been paid. He compared this type of treatment by "fair weather flowers" who come to town,, "hoping to eat and live off you and your best friends" and the Cookeville Shirt Company with,its "pay roll." He stressed • "They (the Union) want to come where the cash pay roll is and get part of it and that is what they do." He then said. "The South is on the verge of the greatest prosperity we have ever known. i hope the tide will not turn and run the industries back north." After giving the figures on the South's recent industrial increase, French continued : "Have any manufacturing concerns come into a community because they were heavily organized? The Unions will tell you that manufacturers come south to get rid, of them. It (increasing industrial activity) makes living conditions better and. we need that here, and I hope that none of us do anything to retract progress. We have had an uphill pull to get where we are today." After stressing the fact that the Respondents' pay roll had paid for many things for the employees, and that the Respondents had "voluntarily" granted the last wage increase without even a request from the employees. French told them how easily they could see him and talk to hun "should any of you be discharged." He then, added that while "lots of people think that the best way to get rid of hard headed, or troublesome employees is to fire them," he, himself, liked to show such an; employee how to "better himself" because "to fire them we might throw them into the gutter." He then urged the employees to "vote the way you please and, you will please me." While French was careful not to threaten directly to discharge the employees or to move his plant from Cookeville if the Union won the election, he created that same effect through the patent nnplication of his remarks. The under- signed finds that these speeches made dust preceding the holding of the Board: election violated Section 8 (1) of the Act. The election was held on August 16 and was won by the Union when 120= employees voted in favor of being represented by the Union as against 57 who, opposed such representation. About 3. 30 the following afternoon, the Respondents notified the employees, that the plant would be closed down on April 18, but would reopen on the 19th From that time on until June 1 the employees lost a considerable amount of time because the Respondents chose not to work. After 2 weeks of relatively normal operation during the weeks beginning June 3 and June 10, the Respond- ents started operating 3 days per week, for the stated reason that they were unable to secure the necessary cloth. In general this 3-day week continued with, two vacation periods interspersed until the week beginning September 9, 1916._ Thereafter the plant appears to have operated full time. The Board contended that the Respondents locked out the employees in order to interfere with, restrain and coerce them into refraining from membership in the Union and from exercising their rights under the Act. On the other hand, the Respondents contended that this shut-down was caused excltxsiyely because, of an accumulation of unfinished work at the inspection tables and in the pressing, department, which made further production work impossible. 809095-49-vol. 79-44 4678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On or about April 17 there is no question but that the Respondents had some 11,000 dozen shirts in the plant in the process of manufacture., _The cutting de- partment was some 4,000 dozen ahead of the sewing department. Normally the plant should have about 5,000 or 6,000 dozen shirts in process of manufacture. The record is not clear as to just when this backlog began to accumulate, but it is clear that it was in existence in large part quite some time prior to the date of the election. When Glenn suggested closing the plant because of this backlog prior to the election, French ordered him to continue operating because a shut-down at such a time would be interpreted by the employees and others as an unfair labor practice. The question of closing down appears to have arisen for the first time after the announcement that an election would be held. • Consequently the plant continued operating until April 18. This ability to continue operating prior to the election proves that, if they had desired to do so, the Respondents could have continued after the election. On April 18 Mattie Jernigan, head forelady of the sewing departments, was in the plant looking at the silent machines with Jimmy Ragland, then forelady of one sewing department. She remarked to Ragland,'"It is awful, it's a shame all these girls are off, they asked for it the day they voted in the election. It was coming to them so they got it."' The evidence from-all the witnesses, both those of the Board and of the Re- spondents, makes it quite clear that the Respondents made efforts to dissipate this bottleneck by assigning production workers to work as inspectors. Glenn testified that this proved too expensive and was not continued after the election. Even though the production department worked 4,967 hours out of 6,360 hours during the week of April 29 to May 4, and the testimony is definite that the in- spection backlog had not been broken by this time, it is undisputed that all the inspectors were laid off for 11 hours during this week. The Respondents' will- ingness to lay off for 11 hours the whole department, whose backlog just 9 working days previously had been so severe as allegedly to have caused the shut-down of the whole plant, does not appear to conform to the seriousness of the bottleneck as pictured by the Respondents. Nor was Superintendent Glenn very convincing in his testimony as he never could be sure whether the bottleneck was in the inspecting department or in the pressing department swinging the blame back and forth between these two departments as the spirit moved him. Based upon the tenor of French's remarks and that of Jernigan, and upon the fact that it was obvious that the plant could have continued operations, as well as the connection between the shut-down of the 18th and the election of the 16th which was obvious to all the employees, the undersigned finds that the shut- down of that day was for the purpose of interfering with, restraining and coerc- ing the employees and to indicate to them the Respondents' displeasure at the results of the election of April 16. B. The dischai ges . 1. Herbert Lawson Lawson began his employment in the Cookeville plant in 1927 and had been cutting room foreman for a period of 10 years prior to his discharge on April 19, 1946. s In view of Jernigan's other anti-union activities , the undersigned cannot credit her denial of this testimony. COOKEVILLE SHIRT COMPANY 679 In November 1944, Russell W. Lewis engineered the plant for the Respondents, and in March 1945 returned to do a re-engineering job which took him until June 1946. Although Lewis testified that he had found the cutting room deficient in "quality and quantity" of production at the time of his first visit there , nothing was done about that matter until the Respondents changed the pattern of its shirt, at which time it sent Thomas Padgett Glenn to Cookeville to assist in making the necessary. new patterns and "see if [he] can help Mr. Lawson out, * * to straighten his department out and make him operate efficiently." Glenn was in Cookeville from September 15 until November 15, 1945, and accord- ing to Lewis, spent "the greatest portion of [ Glenn 's] time in the cutting room making a new set of patterns for Lawson." Glenn testified that when he left Cookeville in November , he believed that the cutting room costs and efficiency would "continue to improve " because of his efforts, but that he was sent back to Cookeville for 2 weeks in December because ,reports received a week or 10 days atter his departure showed the cutting room costs to have increased promptly on his departure . At the hearing the Respond- ents introduced an exhibit showing what it termed "cutting cost" which consisted in reality of a tabulation of the number of dozen shirts cut per week and the wages paid in the cutting room for that same week . This record did not purport to give any figures for spoilage, wastage , or other incidental cutting room costs. In fact, Glenn testified that prior to February 1, 1946, when he became plant superintendent , no such cuffing costs were kept The record introduced does show, however, that the average cost per dozen shirts cut from May 5 to December 22, 1945, was 16.2 cents per dozen , that for the 2 months period from September 15 to November 15 while Glenn was "improv- ing the efficiency " of the cutting room the average cost per dozen rose to 20 cents. It also refutes Glenn 's testimony above for after his departure on November 15 the cost per dozen promptly decreased and the average for the remainder of the year was 12.7 cents per dozen. Under Glenn 's supervision for 2 weeks in Decem- ber, the average cost was 13 cents, while that for the following 2 weeks under Lawson was 10 cents per dozen. Glenn and Lewis testified at length regarding the alleged inefficiency of Lawson in the cutting room The Respondent introduced this same type of exhibit for the cutting room cost for 1946 to April 20 and for the corresponding period of 1947 to emphasize this alleged inefficiency . The average cost for the 1946 period was 14 cents per dozen while that for 1947 was 10.2 percent. However, the difference in these cost figures is explicable by reason of the 5404 dozen more shirts cut during the 1947 period. As Lewis so aptly phrased it at the hearing, "The more the production , the lower your unit cost is. It is just common sense." The higher production figures for 1947 are equally explicable because no such bottleneck as existed in the inspection and pressing departments in 1946 existed in 1947. Lewis testified that production in the sewing department in 1946 reached its ultimate low of 150 dozen shirts for reasons he had never been able to ascertain but which he did not attribute to the cutting department. Although Glenn and Lewis testified at length about the deficiencies in""quality and quantity" of production in the cutting room under Lawson, neither even implied that the bottlenecks of 1946 were caused by any of these alleged cutting room deficiencies. The facts show that the cutting room under Lawson was 4000 dozen shirts ahead of the sewing department at the Cookeville plant by April 17, 1946, and at the same time the cutting department was able to maintain 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a 2 weeks supply of material at the Gainesboro, plant for which the depart- ment also cut Therefoie in the, light of the, Respondents*- own cost figures, and in the light of the actual facts, the criticism of Glenn and Lewis as to the inefficiency of the cutting room under Lawson appeared to be without merit. Respondents introduced two particular instances where Lawson's department appears to have been in error In January- 1946 the sleeves of a lot of 40 dozen shirts were cut on the wrong side. This error was discovered late in February at exactly the time the Respondents admitted knowledge of the Union organizational drive. In a letter dated, February "22, 1946, to Fl ench, Glenn described this error as one by Stone; a marker, which made 40 dozen shirts into "seconds" i. e., an inferior grade of shirt. On February 25, French replied by letter in which the implication was that the error made seconds out of either 300 or 500 dozen shirts instead of 40 dozen4 thereby causing Respondents the loss of either 500 or 300 dozen shirts instead of 40 dozen. French's letter also suggested replacement of Stone, the marker and a leader in the Union movement who later became its first president The letter was only indirectly critical of Lawson as foreman. At French's suggestion, Glenn on February 26, the day after receipt of the Union's letter claiming to represent a majority of the employees, called in Lawson and Stone, read them French's letter and reprimanded them for this error. There can be no dispute but that Stone did make an error and that Lawson did not discover it However it was unanimously agreed at the hearing that no supervisor could be expected to discover every error. After reprimanding the employees, Glenn told Stone that he was going to give him a "chance to quit" and added "you are not satisfied up there All you are doing is talking and studying this union. Why don't you just go on and quit if you are not satisfied?" After Stone stated that he was perfectly satisfied with his job, Glenn excused him and allowed him to return to work. Following Stone's departure, Lewis in whose office the conference took place said to Lawson' "What is the matter up there, Herbert? . . Why is it those boys up there are just all the time studying and talking uR this union? . . . There is something wrong up there.... Are you afraid of them? . . . Why is it then that you won't fire them?" After Lawson had explained that there was nothing to justify their discharge, Lewis told him a story of a cutting room foreman in a plant having a union shop contract who got rid of about 10 cutters out of 28 "and got himself a raise, and I think you will have to do that"s On -larch 5. 1946, Glenn wrote French informing him that Lawson and Stone had been reprimanded on February 26 for the cutting error mentioned above. He stated in this letter that lie was writing so that French would "understand" if "I am forced to take a stand against any further mistakes: however I am hoping this does not happen " On the following day,'March 6. for no reason apparent in the letter or in the record in this case, Glenn again wrote French 4 So far as this record shows, Glenn never answered French's inquiry as to whether the complete order consisted of 300 or 500 dozen shirts The testimony at the hearing indicated that the largest possible number in the order was 110 dozen These findings ale based on Lawson's testimony as to the conversation, despite the denials by both Lewis and Glenn. which denials were based largely on the fact that they claimed that they did not "know" of any Union activity as of that time, nor that Stone- was the leader in the Union. They were contradicted on both these points by other wit- nesses as well as their own admissions that they had heard "rumors " both of-Union activity- and of Stone's prominence in the Union . ""' ' COOKEVILLE SHIRT COMPANY 681 reviewing Glenn's own connection with the cutting room from September 1945 to date and stating that on some unspecified date "I found it necessary, however, to warn [Lawson] that his work must improve if he is to continue here. I will continue to help him until my hopes and patience are exhausted , which at the present writing is very near that point ." There is no explanation of the sudden near exhaustion of Glenn 's "hopes and patience" between March 5 and March 6, 1946. On April 17 following the election , Glenn called the employees together and told them that, now the election was over, the employees were all going to work together and get the job done. Privately he instructed Lawson and other super- visors that Union adherents were not to, be allowed to talk to non-union em- ployees. To Lawson he added "If you don't stop it [talking about the Union], ,d- if I don't get somebody that can " Later that same afternoon Glenn approached Lawson in the cutting room and 'said, "I want to know why you can't keep Odell Dixon' from standing around here talking and arguing about the Union all the time . . . If you don't get him to work and stop all this union talk around here, I am going to get somebody that will do it." During his own testimony Glenn testified that he told Lawson ,to give Dixon "a correction that will stick." By that term Glenn acknowledged he meant a "discharge" So far as the record shows, Dixon has not been discharged. On April 17, the second incident occurred when certain sleeves which had been ,cut, bundled, tied and marked were discovered, after their delivery to the sewing room, to have different size markings on the top and another size marked on the bottom of the bundle. The error was discovered by Head Forelady Mattie Jernigan. Glenn testified that it would be impossible to determine which individual employee was responsible for the mistake but that he "knew" Lawson was responsible because Lawson was foreman of the cutting room. In order -even to hold the cutting room foreman responsible, Glenn had further to state -that he "knew" that the bundles had not been touched after delivery to the sewing room department, otherwise the mistake could have been made in either department The strange marking could have been either an error or inten- tional. The employees most likely to have been responsible were Stone, the marker, or Maurine Jernigan, the tie-up girl who often marked bundles and the daughter of Head Forelady Mettie, Jernigan. Neither of these employees was discharged. Upon discovery of the error Glenn called Lawson and Stone to straighten out the bundles After being reprimanded, Lawson and Stone completed their ,day's work On April 18 the plant was closed down on the Respondents' orders as found heretofore During that day Glenn telephoned to French about the episode and French said lie would come to Cookeville the following clay Sometime in the afternoon of April 19, Glenn had Stone brought into his office -so that French could talk to hi ml about a report Maurine Jernigan had made that .Stone had urged her to sign a Union card and had stated that lie thought any- one who failed to sign was a "d- fool." When French asked him if he had not been talking to the girls too much, Stone denied talking about the Union to them during working hours . French replied, "I don't want you talking about s Dixon had been an observer for the Union at the election on April, 16, 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this Union . . . you ought to get along if you don 't . . , if you do and I find it out I will discharge you . . ." 7 1 Following this interview Glenn sent for Lawson and, when he appeared at the office, French said, "Well, Herb, the jig is up " French suggested to Lawson that he resign offering the inducement of a "recommendation " if he would. The reason given by French for requesting Lawson's resignation was "You either won't or can't do what we want you to do up there ." When Lawson refused to- resign, he was discharged and given a month's pay as separation pay. Lawson has never been offered reinstatement subsequently. Besides the Respondents ' disproved claim of inefficiency against Lawson, the Respondents further contended that Lawson advised farmers on treatment for their sick animals, thereby losing time from work. Between them Lewis and Glenn recited two instances of phone calls made to Lawson dealing with such matters, and two occasions when Lawson went outside the plant to his car talk- ing to animal owners apparently . Such episodes appear to have been rare and to have been countenanced under prior management . When Glenn spoke to him about the matter, Lawson readily agreed to eliminate the practice entirely. Glenn made no claim that this activity caused Lawson's discharge. As the proof appears quite conclusive that Lawson was not an inefficient fore- man as contended by Glenn and Lewis, and as Glenn acknowledged that Lawson was only responsible for the two particular errors referred to in the testimony because of his supervisory status, and as the last error appears to have happened under peculiarly suspicious circumstances , the undersigned finds that Respondent did not discharge Lawson for any of the above reasons, but that it did discharge Lawson on April 19 because he refused to indulge in anti-union practices in his department , though requested to do so by the Respondents , thereby refusing to discourage Union membership among the employees under his supervision. 2. Jimmy Ragland Jimmy Ragland, a woman, was employed by the Respondents in the fall of 1945 with the promise that she would become a forelady if she proved to be a good operator. She commenced operating in January 1946 and in February was promoted to forelady over an operating department of 38 to 40 girls. She signed a Union card on March 25, 1946. On one occasion during the Union campaign, Head Forelady Mattie Jernigan asked Ragland what she thought of the Union. Ragland stated that she had found unions to be beneficial during her employment in the north. On other occasions Mattie Jernigan would ask Ragland if she knew whether certain named employees were members of the Union. About April 15, 1946, Lewis informed Ragland that he and French had just returned from the Gainesboro plant where the women employees had gone "wild" because some unknown person had been distributing Union cards and that they were going to stop the work down there altogether. On April 19, on orders from French, certain construction work at the Gainesboro plant was stopped for some time, although thereafter the construction was increased in amount and completed. On April 18, as heretofore found, when the operators were laid off, Mattie Jernigan said to Ragland while both were gazing at the idle machines : "Law, isn't this awful, all these machines sitting idle? But they asked for it the day they voted in the election." I French did not deny these statements and Glenn testified to only a slightly different version. COOKEVILLE SHIRT COMPANY 683' On May 2, '1946, Ragland discovered a shirt which had been sent back for repairs on which was pinned a note in Lewis' handwriting "Pearl Elam;' just plain foolishness." Ragland laughed at the note and removed it from the shirt, throwing it away in the ash can. Mattie Jernigan informed Glenn of the episode whereupon Glenn began searching for the note which could not be located that day but which was found on May 3. The note was dated 4/16/46, when Ragland had seen it the first time.9 On May 3 about 30 minutes before quitting time Glenn discharged Ragland because she had "not been doing her duty" and because Lewis said she had not been "working in the company's interest" as proved by her statement to Operator Eva Massie. The statement to Massie was one to the effect that it was a shame for the girls to be laid off while there was so much work to do. While the undersigned was not impressed with the proof of the Respondents' claim that Ragland was an inefficient forelady, the undersigned can find nothing in her discharge which suggests that the purpose thereof was to encourage or discourage union membership and will, therefore, recommend that the complaint as to Jimmy Ragland be dismissed. 3. Nettie Johnson and Frances Neal About the middle of December 1945, at the suggestion of Operator Lorine John- son, Respondents employed Mattie Jim Johnson as a second collar operator and Frances Neal, her cousin, as a first collar operator. Neither girl had had any previous experience. Both Johnson and Neal heard of the Union about the middle of February and both joined. Neither was very active in the Union, although commencing about April 23, both wore their Union buttons at the plant as did a majority of the em- ployees. On the first evening the buttons were distributed to the members, both Johnson and Neal were wearing theirs at a cafe in Cookeville when Glenn walked in and looked in their direction. Glenn testified that he did not notice them nor their buttons. Being new employees on jobs which generally require the usual newcomer about 61/2 months 10 before becoming proficient, both girls were criticized for some of their work. On at least one occasion Glenn complimented Johnson on some good work. Both testified that the criticisms from Glenn and Jernigan increased sub- stantially after the election. On one occasion Lewis requested Lorine Johnson, a strong non-union em- ployee to speak to both Johnson and Neal ostensibly to prevail upon them to improve their workmanship. On May 29, either Glenn or Jernigan picked up either a whole bundle of shirts or-else a few shirts from either a lot on which Johnson was then working, or were given a bundle of shirts by an inspector who had rejected them for poor workmanship The testimony of both Glenn and Jernigan was highly confused on this point. Glenn first testified that he accompanied Johnson to his office at the time he had picked up the shirts at her work bench but subsequently re- called that he had had her called to his office some hours after the shirts had gotten to his office. It was obvious from the testimony that the shirts were 8 An operator. 0 Lewis testified that he had written the note and pinned it to a shirt when he had dis- covered Pearl Elam doing very bad work on the shirt. This was his method of attempting to correct. Elam's error. 10 Six weeks to learn to sew plus 4-5 months to become proficient. 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discovered in the morning, but that Johnson was not called to Glenn's office until that afternoon, and after Neal had been criticized separately for her alleged work on the same bundle. Although Johnson had not noted the fact from the ticket attached to the bundle of shirts, it appeared that both she and Neal had performed their sep- arate operations on the same bundle of shirts during that day. On the afternoon of May 29, Glenn first had Neal called to his office where he showed Neal the bundle of shirts which had very poor quality workmanship on the shirts. In fact, at the hearing, Neal made the accusation that the shirts had been deliberately ripped for the occasion. Both Neal and Johnson testified that each of them separately had asked to see the bundle ticket in order to ascertain whether she had actually worked on that bundle and each testified that she was ,denied the right to see the ticket. Glenn and Jernigan, who were both present at the interviews, both testified that the girls were shown the ticket. However it appeared to the undersigned that Glenn's confusion as to how he had come into possession of the shirts seemed to stem from an attempt to show that Johnson knew that she had worked upon the shirts in question without the necessity for recourse to the bundle ticket, thereby covering up the failure to allow an in- spection of that bundle ticket by Johnson. The undersigned, therefore, credits the testimony of Neal and Johnson, who appeared to be honest witnesses, that they were refused permission to see the ticket. After showing Neal the poor workmanship,. Glenn asked her to repair the shirts and to do better work in the future This Neal promised to do and was thereupon sent back to her work. Then Glenn sent for Johnson whom he criticized for sewing with an un- threaded bobbin, which Johnson indignantly denied having done. Glenn looked at her Union button and said, "That looks like it calls for more money." Johnson answered that she was not asking for more money and was satisfied with her job Jernigan suggested that she understood that Johnson had another job in prospect where she could make more money. Johnson refused their request that she quit. Glenn asked her to repair the work and to do better in the future. When Johnson stated that she was doing her best and would continue to do so, Glenn testified that his "patience was exhausted" by her attitude and so he discharged her. On June 5, 1946, Johnson was called to the plant, at French's instance when lie told her that the Respondents were sorry to lose a "good operator" like herself and French offered her another job at the plant Johnson insisted upon reinstatement to her old job with back pay for the 21/ days of work she had missed after her discharge. When French refused reinstatement on these terms, Johnson stated she was tired of wasting time and walked out. Subsequently she has never been offered reinstatement Glenn testified as to Neal that after May 29, bundles of Neal's work were rejected by the inspectors on June 3, June 4 and June 5; that he again called Neal into his office on June 5 when Neal stated that she was doing the best work she could, an attitude' which Glenn thought was highly reminiscent of that of Johnson and which "exhausted" his patience as to Neal, so on June 5 he discharged Neal. In both the Johnson and the Neal dischai ge cases. Glenn, Lewis and Jernigan testified to numerous instances of bad work by each of them In his testimony Glenn relied heavily on company records which he originally testified were `original" records upon which original entries were entered daily, but after hav- ing his recollection refreshed, acknowledged` that these records were actually COOKEVILLE SHIRT COMPANY 685 records started subsequent to his becoming superintendent, and, in many instances, subsequent to the, events recorded thereon, that the entries in these, records bad been made from their former records which had either been destroyed or were still in existence or had been entered from memory or later investigation. A perusal of the records indicated examples of all of these. A check of these work records as against the Respondents' pay-roll records for each of these girls reveals the inaccuracy of the records For instance, in the case of Johnson, the work record indicates that on April 22, 1946, the forelady requested Johnson to improve her workmanship after finding "more had work," and that on April 10, 1946, Glenn complimented her on some of her work. However, the Respondents' pay-roll record indicates that Johnson worked on neither of the days in question. In the case-of Neal, the work record indicates Neal was shown some bad work on April .30, but the pay-roll record proves that Neal (lid not work that clay. In his corrected testimony Glenn testified that the original entries had been made on certain "cardex" cards, and that these cards contained the daily records. How- ever-Glenn was unable to determine the dates for certain entries contained on these cardex cards A perusal of the cards indicates that the cards were not kept chronologically and, therefore, could not contain the daily records,, conse- quently the undersigned is unable to place much reliance on these company records, nor upon Glenn's testimony, which was, in large part, a recital from these records. However, all the company -records contradicted Glenn's testimony that Johnson was not a good worker, showing as they do, a steady consistent improvement in her production throughout her employment; until in the next to last week of employment she•made her full quota of production, a feat which generally takes a beginner 51/2 to 61/2 months to accomplish. It is therefore obvious that despite Glenn's testimony, Johnson was not discharged for her poor "quantity and quality" of production The Respondents' pay-roll records do tend to confirm Glenn's complaint about Neal's poor "quantity and quality" for her climb in production was neither so steady nor so complete as Johnson's Neal never produced more than 79'percent of her production quota prior to her discharge, yet on neither May 29 nor June 5 did Glenn, according to his own testimony, have any intention of terminating Neal's employment until her "attitude" became so similar to that displayed by Johnson on May 29. On all the evidence presented, the undersigned believes, and therefore finds, that the Respondents discharged Nettie Johnson and Frances Neal because each ,of them,:was,a, members of ,the Union and in order to discourage membership in the Union. 4. Dimple Warren Warren was employed by the Respondents as a button sewer from June 1945 to October 23, 1946. She heard about the Union and signed a membership card shortly before April 16, 1946. She also distributed a few Union cards to other employees prior to the election. Again in October 1946 she gave out two Union cards and collected them after they had been executed ' On October 23, 1946, Glenn called Warren into his office where he told her he was sorry but he was "going to have to let [her] go." He informed her that she was capable of being a good operator but that he was discharging her because she had done some bad work, had "hollered" too much, had left her machine 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD before quitting time and because he did not think she was "happy working for The discharge of Warren appeared to have been a sudden decision by Glenn. The cardex record on Warren, besides showing conclusively that it was not made out daily and chronologically as claimed, indicated that Warren was corrected for bad work and noise and warned on April 25, 1946, that she was being corrected "for the last time." Thereafter the cardex is blank until October 2, 1946, when a notation was made that Warren "claimed something wrong with eye" and asked permission to see a doctor. As to this eye episode Glenn testified that the Re- spondents did not want her to go to the doctor because "we needed her so bad and all." It is undisputed that Lewis had told the operators who were making production that, when they had reached their production quota, they were free to do.what- ever they chose, so long as they did not bother the other operators With the exception of 8 individual weeks, Warren always made her quota and generally was above quota. The record shows that Warren was over production for the whole of March and April, so that it is hard to believe that she was corrected so often for bad work during that period in the face of her denial thereof. Warren acknowledged that she "hollered" in the plant when she needed bundles to work upon. This was the customary method by which all button sewers secured necessary work. She acknowledged-that..she- had,,been reprimanded two or three times for hollering too loudly. It hardly seems logical that a 100 percent operator who was needed so "badly" on October 2 would be discharged on October 23 for such a trivial offense. Glenn testified that he had heard "reports" that Warren threatened "to bawl somebody out" twice after being reprimanded. The Respondents appeared to be clutching at straws with this testimony, as no attempt was made to prove the truth of these reports. None of the Respondents' claims as to Warren appeared to ring true. However in October 1946, Warren did distribute and collect two Union cards after they had been executed. She was one of the two union members among the 12 button sewers. Glenn admitted having heard "rumors" that she was a member of the Union. In view of the Respondents' attitude towards the Union, and the patent invalidity of Respondents' criticisms of her, her Union member- ship and activities appear to have been the true explanation of her discharge on October 23. The undersigned, therefore, finds that the Respondents discharged Dimple Warren on October 23, 1946, because of her Union membership and activity in its behalf, and in order to discourage membership in the Union among its employees. C. The,r6fusal , to, bargain 1. The unit and the majority On April 16, 1946, as found heretofore, the Board held an election among all employees of the Respondents employed at the Cookeville plant, excluding guards, watchmen, clerical, maintenance and supervisory employees with author- ity to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action, which the parties agreed, and the undersigned finds, constituted a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. As 120 employees in said unit voted in favor of representation by the Union, while only 57 voted against, the Board, on August 20, 1946, certified the Union COOKEVILLE SHIRT COMPANY 687 as the exclusive representative of the employees in the aforesaid appropriate unit. The undersigned finds that on August 20, 1946, and at all times thereafter, the Union was, and now is, the exclusive representative of the Respondents' em- ployees in the appropriate unit found above. 2. The refusal to bargain By letter dated August 28, 1946, signed by Mary L. Johnson, International Representative, United Garment Workers of America, the Union'r`equested that the Respondents set a date on which to begin bargaining collectively in good faith in regard to a contract. At the first conference held September 28, 1946, the Union presented its pro- posed agreement. The meeting was terminated by mutual consent soon there- after so that the Respondents might have a chance to consider the proposal. The next actual conference between the parties was held on October 25, 1946. At this conference French refused to recognize the Union as the exclusive repre- sentative of all the employees in the unit, but argued that the recognition should be restricted so that the Union would represent only the Union members. This the Union refused to do. French's point had been adversely decided under the language of the Act in a number of cases including the McQuay-Norris decision of the Supreme Court." Although the proposed agreement-provided for a:wage structure -higher than that' in • existence at the' plant, and although wages were to become a subject for negotiations thereunder, on the morning of October 25, French appeared at Cookeville before the assembled employees and informed them that the Respond- ents had decided to grant them a wage increase. In the afternoon he engaged in the negotiation meeting at Nashville without mentioning his activities of the morning. Numerous cases have held that the granting of a wage increase by unilateral action of the employer under circumstances similar to those here con- stituted a refusal to bargain. At the following meeting held on November 8, 1946, the parties continued the same discussion on the recognition clause French added to his prior objections the fact that he did not desire to have the same organization representing the .Negro pressers as represented the white production employees. This contention has also been ruled to be specious. French further refused to consider either the proposed closed shop clause or a union shop clause, and insisted that the Respondents would remain an "open shop." Prior to the next meeting which was held on November 18, the Union filed further charges of discriminatory discharges and of refusal to bargain with the Board. French protested to the filing of these charges. There ensued dis- cussions on other 'clauses in the proposed' union agreemeht, but the parties were unable to agree upon any clauses therein. It was agreed however, at a con- ference about this time, that any and all agreements made were tentative until all clauses of the agreement had been decided upon. French offered to accept the recognition clause so long as it was understood that any employee would have the right to present a grievance individually to the Respondents. This the Union refused. Thereafter inconclusive meetings were held on November 29 and December 6 without any real agreements being reached although a few clauses were tenta- tively accepted. At the December 6 meeting the Union presented its second 11 116 F. (2d) 748 (C. C A. 7) ; cert. denied, 313 U. S. 565. 688 DECISIONS- OF NATIONAL LABOR:- RELATIONS BOARD -proposed contract but again discussions, upon this proposal were futile due to, .company objections . The conciliator from the Department of Labor whose pres- ence had been requested by the Union , proposed that Respondents put their so-- called "oral counter-proposals" into writing for the following meeting. At the January 10. 1947 , meeting. Respondents did submit a written counter- proposal offering the same suggestions which . it had previously made orally. This proposal contained the following provisions to which the Union raised strenuous objections, but which French maintained was a condition precedent to the Respondents' agreeing to anything : IV. Work stoppage 1 There shall be no stoppage of work, sitdowns . slow -downs, or strikes, nor shall the Union , or any of its members, engage in sympathetic strikes during such period Upon a violation of'this provision of this contract the Union thereby shall become liable for all damages occasioned the Com- pany by such violation . If such violation of this contract shall result in at closing of the Cookeville plant, it is agreed that the Company will be damaged thereby in a sum not less than $2,500.00 per clay. which amount may be fixed as liquidated damages by any court passing upon the Com- pany's claim for damages As further evidence of its good faith, and its intention to comply with the terms and provisions of this section of this Agreement , the Union has entered into, and has delivered to the Company simultaneously with the execution of this contiact a performance bond, in the amount $______ the conditions of the bond being such that it shall idem- nify the Company against any loss or damage by the breach of this section of this contract upon the part of the Union , or its members. The meeting held on January 20 was identical with those held prior thereto except that both the Union and the Respondents agreed to submit further counter-- proposals at the next meeting. At the next meeting held on February 4, 1947. the Respondents submitted a "Memorandum of Proposed Modification in Company Proposal ." This modifica- tion to the "work stoppage" clause was as follows : IV. Work Stoppage 1. The Union and its members agree that they will not engage in , any work stoppage , sit-downs, slow-downs or strikes during the life of this agreement, nor shall the Union or any of its members engage in sympathetic strikes during such period. In the event the Union and its members violate this provision of the Contract it is understood that such action by the Union, or its members, is a breach of contract , and gives rise to a right of action on the part of the Company against the Union and its members and the Company may prosecute that right , of action in any, court having jurisdiction of such matters, to have its damages assgssed and judgment iendeied if such violation results in a complete closing of the Company's plant at Cookeville, Tennessee, and the court trying the matter so finds, then it is agreed that liquidated damages to the 'Compat y b3' reason - of such violation 'shall be COOKEVILLE SHIRT COMPANY 689'' calculated upon the basis of $---------- per day damages . As evidence of the good faith of the Union and of its members, and their intention to comply with the terms and provisions of this section of this Agreement , the Union_ for itself and on behalf of such employees has entered into and has delivered to the Company simultaneously with the execution of this contract a per- formance bond in the amount of $__________, the conditions of the bond being such that it shall indemnify the Company against loss or damage for the breach of this section of the contract upon the part of the Union, or its members, and shall make certain the payment of any amount up to the maximum penalty of the bond which may be awarded as damages. The only sum mentioned by French for the amount of the performance bond was $50,000. French remained adamant that there would be no agreement with the Union without such a bond. A number of cases including the Scrip to Manu- facturing case's have held that the requirement of an indemnity bond by an employer as a condition precedent to the execution of an agreement with a certi- fied union is evidence of the lack of good faith on the part of the employer who makes such a demand. A recital of the events and the proposals presented at these numerous meetings is conclusive that from the beginning the Respondents never intended that an agreement should be reached with the Union. It violated too many tenets of good faith for any other result to be possible The Respondents refused recog- nition such as required by the law . Thereafter , by unilateial action and with obvious intention of evading its statutory duty of bargaining with the certified representative, the Respondents raised wages of its employees on the very morn- ing of a day on which' the wages were to become a topic of bargaining without` so much as mentioning the fact to the Union . After finally being forced into submitting a written' counterproposal , it then required the Union to furnish a performance or indemnity bond as a condition precedent to the acceptance of any agreement with the Union. A more obvious and deliberate effort to thwart bargaining in good faith is difficult to imagine . The undersigned therefore, finds on and after August 28 , 1946, and at all times thereafter , the Respondents refused to bargain collectively with the certified representative of its employees in good faith. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in.Section III, above, occurring in connection with- the operations of the Respondents described in Section I, above, have a close, intimate and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce V. THE REMEDY Having found that the Respondents have engaged in unfair labor practices which individually violate Section 8 (1) and ( 3) and (5) of the Act, the under- signed will recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It will be recommended that the Respondents cease and desist from inter- fering with , restraining, and coercing their employees in the exercise of their rights guaranteed to them by Section 8 ( 1) of the Act. 12 36 N L R. B 411 at 421. 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'LIt will also be recommended that the respondents reinstate to-their former or substantially equivalent positions and make Herbert Lawsoh, Nettie ' Johnson; Frances Neal , and Dimple Warren, whole for any losses incurred by each of them because of Respondents' discrimination against them by payment to each of a sum of money equal to that which each would normally have earned from the date of the discriminatory discharge to the date of the Respondents' offer of reinstatement less his or her net earnings 'a during said period. Having further found that the Respondents refused to bargain collectively with the Union as the exclusive representative of its employees in the appro- priate unit, the undersigned will recommend that the Respondents , upon request, bargain collectively with the Union . The undersigned makes this recommenda- tion because it is obvious that the Respondents have failed and refused to bargain collectively in good faith with the Union certified as such by the Board over a year prior to the effective date of the Taft-Hartley Bill and because the evidence is clear that the Respondents' actions have violated the terms of both the Wagner Act and the Taft-Hartley Act in that the Respondents here have failed even to "confer in good faith" with the Union. At the hearing the attorney for the Board requested that the undersigned recommend that Respondent P. M. French be ordered to cease and desist from engaging in unfair labor practices not only at the Cookeville plant but also in all other 18 or 20 plants and companies with which he is officially connected as an officer. This request was based upon the fact that of recent date , French has been named as the agent of a number of companies which have been found to be in violation of the Act , in large part through the activities of said Respondent French. A number of these factories have been held in Intermediate Reports or in Board Decisions to have violated the Act. Several of these reports or decisions mention French specifically and individually as being responsible for said violations. The undersigned does not believe that he should make such a blanket recommendation as to the Respondent French covering his activities in all companies with which he is connected for the reason that his connection with Respondent Cookeville Shirt Company is the only one involved in the present proceeding. However, assuming that the Board should sustain the above- mentioned Intermediate Reports against the Respondent French, it would appear appropriate to the undersigned for the Board, after consideration of all these cases, to issue such a blanket order against the Respondent French . It does not seem appropriate that the undersigned should do so in this particular case and hence he refuses the request of the Board's attorney. Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. United Garment Workers of America , Local Union No. 323, A. F. of 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 their rights guaranteed in Section 7 of the Act , the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 3. By discharging and discriminating in regard to the hire and tenure of em- ployment of Herbert Lawson , Nettie Johnson , Frances Neal , and Dimple Warren, thereby discouraging membership in United Garment Workers of America, Local n See Matter of Crossett Lumber Co ., 8 N. L. R B. 440, 497-498. COOKEVILLE SHIRT COMPANY 691 Union No 323, A. F. of L, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. % Ev 4. All employees of the Respondents employed at the Cookeville plant excluding guards, watchmen, clericals, maintenance, and supervisoryi employees with the authority to hire, promote, discharge, discipline, or otherwise effect changes-in the status of employees or effectively recommend such action, constitute an appro- priate unit for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 5. United Garment Workers of America, Local Union No. 323, A. F. of L., was on August 20, 1946, and at all times thereafter has been, the exclusive repre- sentative of all employees in the aforesaid appropriate unit for purposes of col- lective bargaining within the meaning of Section 9 (a) of the Act 6. By refusing on September 28, 1946, and at all times thereafter, to bargain collectively with United Garment Workers of America, Local Union No. 323, A. F. of L., as the exclusive representative of all the Respondents' employees in the aforesaid appropriate unit, the Respondents have engaged in and are engag- ing in unfair labor practices within the meaning of Section 8 (5) of the Act. 7. By discharging Jimmy Ragland on May 3, 1946, the Respondents did not commit any unfair labor practice. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law and upon the entire record in the case, the undersigned recommends that the Respondents, Cookeville Shirt Company and P. M. French, Cookeville, Tennessee, their officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in United Garment Workers of America, Local Union No. 323, A. F. of L, or any other labor organization of its employees by dis- charging or refusing to reinstate any of their employees or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment; (b) Refusing to bargain collectively with the United Garment Workers of America, Local Union No. 323, A. F. of L., as the exclusive representative of all employees of the Respondents at the Cookeville plant, excluding guards, watchmen, clericals, maintenance and supervisory employees with the authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action ; (c) In any other manner interfering with, restraining, or coercing their em- ployees in the exercise of their rights to self-organization, to form, join, or assist United Garment Workers of America, Local Union No. 323, A. F. of L., or any other labor organization, to bargain collectively through representatives of their own choosing or 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 effectuate the policies of the Act : (a) Offer Herbert Lawson, Nettie Johnson, Frances Neal, and Dimple Warren immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges ; (b) Make whole Herbert Lawson, Nettie Johnson, Frances Neal and Dimple Warren for any loss of pay each may have suffered by reason of the Respondents' ,692 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD discrimination against him by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the Respondents' offer of reinstatement, less his net earnings during such period; (c) Upon request, bargain collectively with United Garment Workers of America, Local Union No. 323, A. F. of L., as the exclusive representative of all its employees in the aforesaid appropriate unit; (d) Post at its Cookeville plant at Cookeville, Tennessee, copies of a notice attached to the Intermediate Report herein marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Tenth Region, after being signed by the Respondents' representative, shall be posted immediately by the Respondents upon receipt thereof and maintained by it for at least 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 Respondents to insure that said notices are not altered, defaced, or covered by any other material ; (e) Notif} the Regional Director for the Tenth Region in writing within ten (10) days from the date of the receipt of this Intermediate Report what steps the Respondent has taken to comply herewith. It is further recommended that, unless on or before ten (10) days from the date ,of the receipt of this Intermediate Report, the Respondents notify said Regional, Director in writing that they will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the Respondents to take the action afore^airl. It is also recommended that the complaint as it relates to Jimmy Ragland be dismissed. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board, Series 5, effective August 22, 1947, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203 45 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and six ,copies of a statement in writing setting forth such exceptions to the Inter- mediate 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 six copies of a brief in support thereof ; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other ,parties. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.55. As further provided in said Section 203.46, 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. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions , recommendations and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules ,and Regulations, be adopted by the Board and become its findings, conclusions and order, and all objections and exceptions thereto shall be deemed waived for -all purposes. THOMAS S WILSON, Ti tat Examiner. Dated September 25, 1947 COOKEVILLE SHIRT COMPANY APPENDIX A NOTICE TO ALL EMPLOYEES 693 Pursuant to the recommendations of a Trial 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 organizations, to join or assist UNITED GARMENT WORKERS OF AMERICA, LOCAL UNION No. 323, A F. OF L., 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. WE WILL OFFER to the employees named below immediate and full rein- statement to their former or substantially equivalent positions without prejudice 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 discrim- ination. WE WILL BARGAIN COLLECTIVELY upon request with the above-named union as the exclusive representative of all employees in the bargaining unit de- scribed herein with respect to rates of pay, hours of employment or other conditions of employment, and if an understanding is reached, embody such understandinc in a signed agreement. The bargaining unit is: All _sm_ltloyee^ of. the 11'eki ildents employed at the Cookeville plant ex- cluding guards, watchmen, clericals, maintenance and supervisory employees with the authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action. Herbert Lawson Nettie Johnson Frances Neal Dimple Warren 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 io hire 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. COOKEVILLE SHIRT COMPANY AND P, M. FRENCH Employer Dated-------------------------------- By -------------------------------- (Representative) (Title) NOTE : Any of the above-named employees presently serving in,the armed forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof, and :oust not be altered, defaced, or covered by any other material. 809095-49-vol 79-45