Aldora Mills

or In the Matter of ALDORA MILLS and TEXTILE WORKERS UNION OF AMERICA, CIO Case No. 10-C-1811:Decided August 23,1948 Mr. M. A. Prowell, for the Board. Weekes and Candler, by Mr. Murphy Candler, of Decatur, Ga., and Mr. D. R. Cumming, of Griffin, Ga., and Messrs. L. E. Macomber, W. E. Vecsey, C. M. Neuner, and J. R. Mathews, of Barnesville, Ga., for the Respondent. Mr. Garland R. Brook, of Atlanta, Ga., for the Union. DECISION AND ORDER On June 3, 1947, Trial Examiner J. J. Fitzpatrick issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto.' Thereafter the Respondent filed exceptions to the Intermediate Report and requested oral argument. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-man panel consisting of the undersigned Board Members.* The Board has, reviewed the Trial Examiner's rulings made at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Respondent's request for oral argument is hereby denied, as the issues are clearly defined, and the Respondent's contentions were sufficiently indicated in its exceptions and at the hear- ing. The Board has considered the Intermediate Report, the Re- spondent's exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the modifications hereinafter set forth. ' Those provisions of Section 8 (1), (3), and (5) of the National Labor Relations Act which the Trial Examiner found were violated herein, are continued in Section 8 (a) (1), (3), and (5) of the Act, as amended by the Labor Management Relations Act, 1947. *Chairman Herzog and Members Reynolds and Murdock. 79 N. L. R. B., No. 1. - 1 `z DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. We find, as the Trial Examiner did, that the Respondent unlaw- fully refused to bargain with the Union by ignoring the certified bargaining representative and dealing with the shop committee and by unilaterally announcing wage increases. In addition, we find not only evidence of bad faith but also a per se violation of Section 8 (5) of the Act, in the Respondent's studied derogation of the Union's sta- tus as the bargaining representative of the employees throughout the negotiating conferences. The Respondent asserted many times, it one form or other, that "there was [sic] no union in a bona fide state of existence" at the Respondent's plant, and repeatedly refused to sign a contract until the Union, which had been certified as bargaining representative by the Board, chartered a local organization? In our opinion such behavior impugns the validity of Board certifications and evinces disdain for the orderly processes of collective bargaining. 2. The Trial Examiner found that the Respondent did not in bad faith unduly prolong the opening of the bargaining negotiations "in the spring of 1946." We do not agree. On April 17, 1946, after the Union had won the election on April 8, 1946, as a result of which it was certified by the Board on April 23, 1946, the Union began its attempts to open bargaining negotiations. It was finally successful when on August 14 arrangements were made for the first conference on.. August 27. The Union was informed on April 22 by the Respondent that a representative in Akron, Ohio, (A. J. Teusch, the director of industrial relations for the General Tire and Rubber Company, of which the Respondent is a subsidiary) has been designated as the Respondent's negotiator. Numerous com- munications, detailed by the Trial Examiner in the Intermediate Report, passed between the Union and the Respondent's representa- tives, both at Aldora Mills and in Akron. On July 2, 1946, the Union sent a telegram to Teusch asking, "When can we expect a conference?" 3 The Respondent's reply stated, "None of our plants, are working this week. Next week we shall advise you date for meeting." The Re- spondent has at no time informed the Union of a meeting as promised by this telegram. On July 16 the Union unsuccessfully tried to reach ' The stenographic reports of the negotiating meetings received in evidence at the hear- ing are replete with statements by the Respondent 's counsel to the effect that he did not consider the Union a representative of the employees , that he did not think there was a bona fide labor organization in existence , and that the Respondent would not sign a contract until the local group was chartered . The assertions were made in the face of reiterated declara- tions by the Union that it was the duly certified bargaining representative . The Union also explained to the Respondent's spokesmen that, in accordance with its practice , it would not charter a local at this plant until after the first contract had been executed , but that the members of the employee committee who assisted in the bargaining conferences would sign the contract. 3 The Union's telegram of July 2, 1946, and the Respondent's reply of July 4, 1946, were omitted from the Intermediate Report. ALDORA MILLS c3 Teusch by telephone before sending him a telegram' informing him that charges would be filed with the Board on July 17 unless negotia- tions were arranged. No reply was received by the Union to this com- munication, but the next day, July 17, the local plant manager had the local grievance committee gathered together and announced wage adjustments. Although the Respondent at that time replaced Teusch with Vecsey, the local plant manager, as the Respondent's, negotiating representative it did not inform the Union of this shift of authority. These delays and evasions, related above and in the Intermediate Report, constitute, in our opinion, the antithesis of the good faith bar- gaining required by the statute. We find that the Respondent's un- lawful refusal to bargain began with the first request for negotiations oxl April 17, 1946.4 3. We do not adopt the Trial Examiner's finding that the Respond- ent's action in "insisting on reviewing discussion of the already settled arbitration provision" constituted a refusal to bargain violative of Sec- tion 8 (5) of the Act. It is true that the parties did reach agreement on some points of the arbitration section of the proposed contract such as the number of arbitrators and the method of their selection. How- ever, that agreement was not reached on all the provisions of arbitra- tion is evident, as we interpret the record, from : the Union's letter of December 12, 1946, to Sherman Dalrymple of the Congress of In- dustrial Organizations, listing the arbitration of individual wage grievances and workload grievances as deadlocked issues; the discus- sion of this letter of December 12 at the January 17, 1947, negotiating meeting; the Union's letter of January 20, 1947, to the United States Conciliation Service, in which the Union stated, among other things, that the Respondent had refused to accept the arbitration of individ= ual wage grievances; the Union's letter of February 8, 1947, to the Conciliation Commissioner listing "Arbitration as outlined in my let- ter of January 20" as one of the unsettled matters; and the discussions of arbitration at the negotiating meetings of March 7, 13, and ' 20, 1947. 4. The Board certified the Union on April 23, 1946, as the bargain- ing representative of the Respondent's employees as the result of an election held on April 8, 1946. No issue with respect to the appro- priateness of the unit has been raised in this proceeding. However, we note that the unit includes watchmen. We shall amend it by eliminating these employees from the unit, in accordance with the pro- visions of Section 9 (b) (3) of the Act. " See Matter of Burgie Vtinegar Company, 71 N. L. R. B. 829, in which the Board stated, "The Act, which was designed to equalize bargaining power between employees and em- Iployers, does not permit the employer to secure , even unintentionally , a dominant position at the bargaining table by means of unreasonable delay." 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that all employees of the Respondent, including section men, but excluding watchmen, office and clerical employees , technical and laboratory employees , second hands, overseers, and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 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 , Aldora Mills, Barnesville, Georgia, and its officers , agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in Textile Workers Union of Amer- ica, CIO, or in any other labor organization of its employees, by refus- ing to reinstate employees because they engaged in collective activity, or by discriminating in any other manner in regard to their hire and tenure of employment; (b) Refusing to bargain collectively with Textile Workers Union of America, CIO, as the exclusive representative of the employees in the unit herein found to be appropriate; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of th right to self-organization , to form labor organizations , to join or assist Textile Workers Union of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in con- certed 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 Board finds will effectuate the policies of the Act: (a) Offer Homer Crumbley , James Lasseter, James H. Andrews, and Charles Scarborough immediate and full reinstatement to their former or substantially equivalent positions , and make them whole for any loss of wages in the mamier outlined in the section of the Inter- mediate Report entitled, "The remedy"; (b) Upon request, bargain collectively with Textile Workers Union of America , CIO, as the exclusive representative of all its employees in the aforesaid appropriate unit, with respect to grievances, labor disputes , rates of pay , wages, hours of employment, and other con- ditions of employment , and, if an understanding is reached , embody such understanding in a signed agreement ; ALDORA MILLS 5 (c) Post at its mill in Barnesville, Georgia, copies of the notice attached hereto, marked "Appendix A." 5 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, in- cluding all places where notices to employees customarily are posted. Reasonable steps shall be taken by the Respondent to see that the notices are not altered, defaced, or covered by other material; (d) Notify the Regional Director for the Tenth Region (Atlanta, Georgia) in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the allegations in the complaint of dis- crimination against Joe Jones, Roy Moss, and Hugh Williamson be, and they hereby are, dismissed. 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 Re] ations Act, we hereby notify our employees that : WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist TEXTILE WORICERs UNION OF AMERICA, CIO, 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 OFFER to Homer Crumbley, James Lasseter, James H. Andrews, and Charles Scarborough immediate and full reinstate- ment to their former or substantially equivalent positions with- out prejudice to any seniority or other rights and privileges pre- viously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. WE WILL BARGAIN collectively upon request with the above- named union as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employment or other conditions of employment, and if 6 In the event that this Order is enforced by decree of a Circuit Corn t 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 " 809095--49-vol 79-2 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is : All employees, including section men, but excluding watch- men, office and clerical employees, technical and laboratory employees, second hands, overseers, and all supervisors as defined in the Act. All our employees are free to become or remain members of the above-named union or any other labor organization. We will not dis- criminate in regard to 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. ALDORA MILLS, 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. M. A. Prowell, for the Board, Weekes and Candler, by Mr. Murphy Candler, of Decatur, Ga., and Mr. D. R. Cumming, of Griffin, Ga., and Messrs. L. E. Macomber, W. E. Vecsey, C. M. Neuner, and J. R. Mathews, care Aldora Mills, Barnesville, Ga., for the Respondent. Mr. Garland R. Brook, of Atlanta, Ga., for the Union. STATEMENT OF THE CASE Upon an amended charge duly filed by Textile Workers Union of America, C. I. 0., 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 4, 1947, against Aldora Mills, Barnesville, Georgia, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the mean- ing 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 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 had interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act by : (1) on or about the 23rd day of April 1946, and at all times thereafter, refusing to bargain collec- tively with the Union as the exclusive representative of its employees in an appro- priate unit; (2) discharging Joe Jones about October 30, 1945 and Hugh William- son about August 1946, and refusing at all times since to reinstate either of said employees, because of their membership in or activity for the Union ; and refusing to employ W. G. Guyton about September 1946 and since, because he and his family were members of, joined and assisted the Union and engaged in other concerted ALDORA MILLS 7 activities ; (3) refusing since about February 20, 1946, to reinstate six employees' of the twister room, because they and other employees engaged in concerted activity by going on strike about February 20, 1946; and (4) since about June 1, 1945: (a) vilifying, disparaging and expressing disapproval of the Union; (b) soliciting employees to abandon their concerted activities; (c) interfering with the distribution of union literature, causing the arrest of a union representative and then offering to drop the charges if he would cease distributing union litera- ture ; (3) threatening employees with eviction from company houses for concerted activities; (e) questioning employees concerning the identity of union officials and union members; (f) offering reinstatement to an employee on condition that he withdraw from the Union; (g) advising employees that they would lose their jobs and perish if they assisted the Union; (h) advising an employee to have his family cease their union activity; (i) blacklisting and refusing to recommend employees because of their union activities ; (j) questioning an employee as to the contents of an affidavit given to the Board; and (k) granting unilateral wage increases to discourage union activities.' Thereafter the Respondent filed an answer wherein it admitted certain allega- tions in the complaint as to the nature of its business. It admitted that the Union had been certified as the exclusive bargaining agent of its employees in an appro- priate unit and that the Union had requested the Respondent to bargain with it. The answer also admitted that Jones was discharged and that the employees in the twister room ceased work, but denied that the Respondent had committed any unfair labor practices. Pursuant to notice, a hearing was held at Barnesville, Georgia, March 24 through March 28, 1947, before J. J. Fitzpatrick, the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The Board and the Respondent were represented by counsel, the Union by a representative. Full opportunity to be heard, to examine and coss-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the conclusion of its main case, Board counsel's unopposed motion was granted to dismiss the allegations of unfair labor practices in the amended complaint' insofar as it alleged discrimi- natory treatment of Ben Harris and W. G. Guyton. Before proceeding with the presentation of its defense evidence, the Respondent's counsel moved to dismiss as to certain other allegations of unfair labor practices in the amended complaint upon the ground that no evidence had been submitted to support the allegations. That portion of the motion which asked the dismissal of the allegation that the Respondent "advised employees they would perish if they assisted the Union" and "advised an employee to have his family cease their union activity," unop- posed by Board's counsel, was granted. The remainder of the motion to dismiss, opposed by Board's counsel on the ground that the allegations referred to were i Homer Crumbley, James Lasseter, James H. Andrews, Charles Scarborough, Roy Moss and Ben Harris. 2 At the opening of the hearing the Respondent moved that the complaint he made more definite and certain as to the allegations of interference set forth in part (4) above. The motion was denied. 3 Three of the Respondent's present officials and its former manager also entered appear- ances for the Respondent. ' During the hearing, without objection, Board counsel's motion was granted to amend the complaint so as to substitute the name of James H. Andrews as one of the six employees discriminatorily refused reinstatement, in lieu of James H. Anderson as originally stated in the complaint. 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supported by evidence, was denied.' At the close of the hearing, counsel for the Board and for the Respondent argued orally on the record. The privilege of filing briefs, and/or proposed findings of fact and conclusions of law thereafter with the Trial Examiner was waived by the parties. Upon the entire record, and from his observation of the witnesses, the under- signed makes the following : FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Respondent, Aldora Mills, is a Georgia corporation with principal office and plant located at Barnesville, Georgia, where it is engaged in the manufacture, sale, and distribution of textile products In the operation of its business, the Respondent annually purchases approximately 10,000 bales of cotton and 5,000,000 pounds of rayon, over 90 percent of which comes from States other than the State of Georgia. It annually sells and distributes approximately 10,000,000 pounds of textile products, over 90 percent of which is transported in interstate commerce to States other than Georgia.' H. THE ORGANIZATION INVOLVED Texile Workers Union of America, C. I 0., is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A Introduction As the result of organization efforts which started in June 1945, and a petition for certification filed by the Union in August of that year, the Board, on April 23, 1946, certified the Union as the exclusive bargaining representative of all the Respondent's employees in an appropriate unit. Thereafter for several months, the Union sought unsuccessfully to arrange bargaining conferences with the Respondent for the purpose of negotiating the terms of a contract covering wages, hours and working conditions for the employees in the unit. On August 27, 1946, the first bargaining conferences convened Thereafter at intervals ranging from less than a week to about 3 weeks apart, and up to and including March 20, 1947 (4 days before the start of the present hearing), numerous meet- ings were held by the duly authorized negotiators. As a result of these meetings, many controversial issues were settled, but the representatives had not agreed to all the terms of a contract at the time this hearing opened Although no negotia- tion meetings were held during the hearing, such a meeting was scheduled tor April 1, 1947, 4 days after the close of the hearing 5 Paragraph 6 of the complaint alleged that the Union had been certified by the Board as the bargaining agent in an appropriate unit on or about April 23, 1946, "has been and is now the exclusive bargaining representative of all the employees in said unit " The Respondent's answer admitted the certification in an appropriate unit as alleged but added that the Respondent "neither admits nor denies that the Union , at the present time, repre- sents a majority of the workers in the Respondent 's plant " Other than the certification, no evidence was offered by Boaid's counsel to prove present majority, and the Respondent, in the motion above referred to, moved to dismiss the allegation as to present majority status on the ground of failure of proof . Board's counsel objected and the motion was denied. Cf. Matter of Con P. Curran Printing Company etc ., 67 N. L. R. B. 1419 6 Findings on commerce based on allegations in the complaint as amended at the hearing, and either admitted or not denied in the answer. ALDORA MILLS .9 The complaint as amended alleges, and the Respondent denies, (a) that during the organizational period as above set forth, and thereafter, the Respondent committed acts of interference, and of discrimination against its employees, and (b) that since April 23, 1946, the Respondent has refused to bargain with the Union as the representative of the employees B. Interference, restraint and coercion; discrimination 1. The organizing campaign ; Barker's arrest In June 1945 , as a result of discussion by Joe Jones and other employees of the Respondent of the need of a union in the mill, Jones signed a letter which was mailed to the Union at Atlanta, Georgia About a month after the mailing of this letter, two union organizers, Barker and Kannan, carne to Barnesville and looked up Jones and the other interested employees At first several small union meet- ings were held in the open air in a pine thicket near the company village.' There- after, meetings were held in a store building Some solicitation took place and handbills were distributed at or near the mill property by the union representa- tives However, in August 1945, Barker wrote Kenneth Douty, the Union's state representative, that there were rumors that any further distribution of handbills at the mill would result in the arrest of the Union's representative responsible for same. On learning this, Douty immediately came to Barnesville on Friday, August 10, and together with Barker, informed the village marshal on duty that they were about to distribute union handbills at the entrance of the mill. The marshal told them that he had instructions from Mill Manager William E. Vecsey to arrest anyone distributing such bills. Nevertheless, during the change of shifts, Barker, standing several yards from the west side gate which is the employees' entrance to the mill, started to distribute union handbills Within 5 minutes thereafter, he was arrested by the marshal, taken to the county jail, and placed in the custody of the county sheriff. The sheriff, after consul, i.g with Vecsey over the telephone, told Barker that the complaint against him was "trespassing and disturbing the peace," but that Vecsey was willing to drop the charge if Barker and the Union would agree not to distribute any more union literature at the mill. Neither Barker nor Douty (who was present) would agree to this and asked about bail. After a further telephonic discussion with Vecsey, the sheriff told Barker that there would be no bail but that he was to report the following Monday morning at the mill office for trial before the village mayor. No formal complaint was ever issued against Barker and the Union was later informed by Vecsey that the charge was being dropped and that Barker would not have to appear for trial.' The Respondent had never previously attempted to prevent the distribution on its premises of any advertising matter. Other than the incident above described, the Respondent has made no effort to prevent the Union from circularizing the employees. . T Alclora Village is located about a mile outside of Barnesvile The entire property in the village, including not only the mill but the houses of the employees, is owned by the Respondent. 8 Finding as to the Backer incident is based upon the testimony of Douty (as corroborated by the stipulated testimony of Backer and that of Vecsey) Vecsey admitted that Barker was arrested under his instructions, but denied that Backer had been "booked" with any formal complaint or charge under Ills instructions Vecsey testified (and the evidence other- wise shows) that Barkei, at the time of his arrest, was standing on "mill property" although it was outside the fenced-in area, and that his arrest was ordered because of complaints of "half a dozen employees" made previously that handbills were being "forced on them" as they entered the mill - 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the oral argument, the Respondent's counsel contended that-it was-no violation of the Act for an employer to promulgate a rule prohibiting distribu- tion of union literature on plant property where the purposes are (a ) to pre- vent untidy littering of the premises, or (b) to maintain plant discipline and order. The difficulty with this reasoning is that it is not applicable to the facts in the instant case. There is no evidence that Manager Vecsey issued the order to arrest Barker to prevent littering' of the mill premises,9 or that the handbills were in fact littering the mill property or even the village property which in- cluded the mill. Manager Veesey testified credibly that he ordered Barker's arrest because his distribution of the handbills on the private pathway in front of the mill gate was causing "confusion" and was a "nuisance." These explana- tions of the plant manager might imply that the order was issued to preserve mill "discipline and order" if it were not for the further statement of Vecsey that he had not stopped distribution of union literature at the plant until "half a dozen folks came to me about things being forced on them." It is obvious, therefore, and the undersigned finds, that the order was issued, not to prevent untidy littering of the mill or to preserve plant discipline and order, but to' prevent the advocacy of self-organization on company property but not on com- pany time, and which in no way interfered with the proper conduct of the Respondent's mill business. This is clearly proscribed by the Act. It is therefore found that the Respondent, by refusing on August 10 to permit Organizer Barker to distribute union handbills at the mill gate, and in causing Barker's arrest for attempting to do so, under the circumstances as above found, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act.30 2. The lay-off of Joe Jones Up to about June 1945, Jones had worked for the Respondent about 18 years as a card grinder. This involved heavy -lifting and in 1930 he developed a hernia which caused him to undergo an operation in 1932. After several weeks in the hospital after the operation, Jones returned to his old job as card grinder with the Respondent. Either because he returned to work too soon, or because the type of work was too heavy for him, he became ruptured again about 1941 and, at his request, in June 1945 was transferred to lighter work as night watch- man and fireman. In early June 1945, and before his transfer to the watchman's job, Jones and several other employees became interested in having a union in the mill, and at that time Jones signed a letter addressed to the Union at Atlanta, Georgia. This letter brought a union organizer to Barnesville and as herein otherwise detailed, the Union organized the mill. While the record does-not warrant a finding that the Respondent knew that Jones was, to a large extent, responsible for initiating the union activity, it did know that Jones was a member of the Union shortly after his transfer to the new job when he began wearing a union button at work. 9 That the Respondent was not concerned about handbills littering the premises is clearly shown by the following credited testimony of J. R. Mathews who, about the first of 1947, became mill superintendent . Mathews testified that about the first of March 1947, the gateman requested authority to ask that union handbills not be dropped on the ground by the distributor , but that he told the gateman, " . . it was all right, it was just another cleaning up job for the cleaning up crew to do." 11 Cf. LeTourneau Company of Georgia v N. L. R. B., 324 U. S. 793. ALDORA MILLS - 11 Furthermore,, Jones testified, presumably for the Union, at the representation hearing in Barnesville, Georgia, on September 28,1945." On October 28, 1945, Master Mechanic Clement, under whose supervision Jones worked as watchman, told the latter that he would be laid off on November 1 because of his rupture and at the request of the Respondent's insurance carrier- Jones, at the time, questioned the reason given for his lay-off and told Clement that there were "half a dozen or more" employees working who were in "the same shape" he was, and stated that he was being released because of,his union activity." The record shows that, while the duties of watchman were comparatively light in the summer months, in the cold weather he was required to fire the coal- burning heating plant in the mill. This necessitated hauling coal in a barrow a short distance, unloading the barrow, and shoveling the dumped coal into the furnace as required. Employment Manager Eldridge testified that Jones was re- leased because his supervisor feared that the heavier winter work might cause strangulation of Jones' hernia. It is apparent that in the fall of 1945 Jones was not in good physical condition because the following January he was again op- erated on for hernia. Jones' testimony is credited that, about February 1946, subsequent to his release from the hospital, he went to see Respondent's officials on one or two occasions relative to his compensation claim. And during one of them he asked J. R. Mathews" about getting his job back as watchman, and that Mathews told him that there was no such job then available but that Jones was "on the list." There were only four watchmen jobs in the mill of the type that Jones had held before his release in November and there is no evidence that there was a vacancy among the watchmen when Jones applied in February 1946, or thereafter, for that matter. There was no criticism of Jones' work as such, either as a card grinder prior to June 1945, or subsequent thereto as watchman. He was either released in No- vember 1945 because of his poor physical condition, as contended by the Re- spondent, or because of his known union activity. Jones testified and named two, possibly three, employees of the Respondent who were ruptured. This testimony was not denied and is credited, but there is no evidence as to the type of work these men were doing, and there is no way of knowing from the record whether their work was heavier or lighter than that of watchmen, or their actual physical condition. In any event, they were not doing watchmen work as Jones did not name any of his three watchmen co-workers as being afflicted. Although as heretofore found on August 10, 1945, the Respondent illegally dis- couraged distribution of union handbills in front of its plant, there is no evidence of the existence, at the time of Jones' lay-off, of the conventional acts of coercion and discrimination that usually indicate an anti-union bias." 11 Case No. 10-R-1585. 12 Finding as to the conversation between Clement and Jones on October 28 is based upon, Jones' testimony. Clement did not testify, and there was no showing of his unavailability. '$ Mathews later became mill superintendent. At the time he was in training for superin- tendent, but was classified as senior time-study man. 14 The interference and discrimination hereinafter found to have occurred in February 1946, was the result of a temporary refusal of a few employees to work because of a very nominal pay grievance, and which the Respondent felt was unjustified. I do not believe the facts found in the later twister room incident, considered with the isolated interference with distribution of union literature 6 months prior to that time, is sufficient to warrant a finding of a design and plan by the Respondent to discriminate against all known union, members ; and no such finding is made. 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In this state of the record, giving due consideration to the Respondent's attempts in the early fall of 1945 to prevent distribution of union literature, the undersigned is not convinced that the record shows that the Respondent discriminated as to the hire and tenure of employment of Jones by discharging or laying him off on November 1, 1945, and thereafter refusing to reinstate him, because of his union activity and to discourage membership in a union. It will therefore be recom- mended that the complaint be dismissed insofar as it alleges violation of Section 8 (3) of the Act as to Joe Jones. 3. The twister room walk-out The first of February 1946, there were 42 twisting machines in what is referred to in the record as the twister room. On each of the 2 shifts then operating, 1 Than alone tended and doffed 6 of these machines. The other 36 machines were operated on each shift by 2 groups, each consisting of a tender and 2 doffers who handled 18 twisting machines." On February 11, the 1 man operating the 6 machines on each shift was eliminated and the 6 machines were divided equally among the 3-man crews remaining, thereby increasing their machines to 21. At the same time, a certain amount of cleaning work that the crew had previously been expected to do,36 was eliminated insofar as the 2 crews were concerned.' The twister room was on a piece-work earnings basis, depending upon the num- ber of hanks produced. It was the custom of the Respondent on Tuesday to post the pay roll for the previous week on a bulletin board in the mill.14 On Tuesday, February 19, after the employees had put in approximately 1 week's work using the 21 machines, the 12 employees expressed concern to management because the posted record indicated slightly lower daily earnings per individual than those earnings had previously been. Management agreed to correct any errors. How- ever, on February 20, nothing having been done so far as the employees knew to correct the apparent discrepancies, both the first and second shifts refused to work until the grievance was rectified, in spite of management's plea that it had not as yet had time to study the matter or to correct any existing errors in the pay calculations. At the time the employees left the job on February 20, their overseer, Ellis, a supervisor, as defined by the Board, told them as a group that if they walked out some of them would never be rehired, and that those of them who lived in company houses would have to move. After the walk-out, Ellis devoted his time to trying to get the employees on the two shifts to return to work by direct solicitation. He was assisted in this by Creamer, second man on the first shift and who also was a supervisor as that term has been defined by the Board 18 As a result, some of 15 Although described as tenders and doffers, the iecord shows their work was more or less interchangeable 1s This cleaning was not ordinary sweeping but consisted of keeping the machines them- selves clean of loose cotton yarn and the spools and other paraphernalia in order There is dispute its to whether this cleaning work had previously been done effectively and properly by the news In any event, the changeover was prompted at least in part by the Respond- ent's desire to change the method of handling the cleaning There is no allegation that the transfer of the three additional twisting machines to the two crews was in and of itself discriminatory IT The Friday following the Tuesday posting, the emplovees received their pay checks for the previous week's work 18 Ellis testified and admitted substantially all the testimony of several Board's witnesses as to his activities after the strike He was not asked and did not deny the credited testi- mony of Andrews that lie had told the group that those that lived in company houses would be requiied to vacate ALDORA MILLS 13 .the employees returned by the end of the week, but on Monday, February 25, the twister room was still shorthanded on both shifts 3° As above found, a number of the twister loom employees returned to work within a short time after the February 20 walk-out and the strike was in fact broken probably by the end of that week Although some of the employees in the twister room who later applied were returned to work, the evidence shows that James Lasseter, Houser Crumbley, James H Andrews, Charles Scarborough, and Roy Moss were not returned on application. The complaint alleges and the Board contends that these employees were not reinstated because of their collective activity. On the other hand, the Respondent contends that they were not reinstated because, by the time they individually applied, their jobs had been filled. James Lasseter had been an employee of the Respondent for about IS years and lived in a company house At the time of the walk-out, he worked on the second shift under Williams On Februaiy 21, the day after the walk-out, he injured his hand in an automobile accident On February 22, Friday, which was pay day, his wife, who also worked for the Respondent under Ellis, went to the plant for her check At that time she told Ellis that her husband would be back to work the following Monday, if he had sufficiently recovered from his injury, and asked for his pay check Ellis replied that he did not have the check as he had just turned in a quit card on her husband.-" Ellis also told Mrs. Lasseter that "some" who had worked in the twisting room would not be re- hired, and'that as her husband was no longer an employee, it was doubtful if she could continue to work in view of a rule prohibiting the employment of mar- ried women it their husbands were not also working at the mill ; but that she should report the following Monday and he would let her know definitely. The record does not otherwise disclose whether the Respondent did actually have a rule prohibiting the employment of married women in the absence of their hus- bands. In any event, the following Monday dirs. Lasseter was permitted to continue with her work.21 The following Monday, February 25, Lasseter, on his way to the doctor's to have his hand dressed, stopped at the mill to see Ellis who inquired if he was able to work Lasseter explained that he was on his way to the doctor and could not work for another week Ellis again remarked that some of those who walked out would not be reinstated and told Lasseter to inform Janes Andrews that he could get "his time." 22 19J R Mathews , in February 1946 senior tine-study man but who later became mill superintendent, testified that by Monday, Februaiy 25, the twistei room was operating satisfactorily He later qualified this statement with the asseition that on Monday they were operating with "spate help " "We didn't assign any paiticular operator to this job until we gave all of them [who had walked out] a chance to come back " He also stated that ordinal fly on Monday only half of the twister room was running and that that prob- ably was true on February 25 Other credible evidence shows and the undersigned finds that for sonic -time after Febi nary 25, 1946, the twistei room was not operating with a full crew consisting of a tender and 2 doffers for each of the 21 machines on each of the 2 shifts 20 Ellis, in his testimony, admitted that he tanned in quit cards on all the employees who had failed to report for work by Friday He also testified, and the record otherwise dis- closes, that all these quit cards contained an answer "no" to the question thereon whether the employee would be rehired. G1 The above finding is based on the credited testnnony of Mrs Lasseter Ellis was not asked and did not den.) het testimony :Finding is based upon the credited uncontiadicted testimony of Lasseter ,14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The next Monday, March 4, 1946, Lasseter reported for work to Williams, his supervisor, who told him he would have to see Ellis. Ellis sent him to Employ- ment Manager Eldridge. Eldridge was not in at the time and Lasseter was in- structed to report the next day. On Tuesday, after waiting for awhile in the ,outer office to talk to Eldridge, Ellis came out of the employment manager's -office and told Lasseter, "We are filled up, haven't got any openings." 23 There- after, on two or three occasions, Lasseter talked to his former supervisor, Wil- ,liams, about reinstatement. Williams agreed to do what he could- about the matter and in June sent word to Lasseter through employee Carver, an oiler, that if Lasseter would sign an affidavit repudiating the Union he could come ,back to work. Lasseter refused to sign the affidavit .24 The latter part of the summer of 1946, Lasseter was told by J. D. McBroom that the latter had quit his job at the mill the night before although urged by ,management to remain because they were short of help. This information ,came to Lasseter before work the morning after McBroom had quit. Lasseter immediately went to the mill and applied for the job vacated by McBroom but was told by Eldridge that they were "filled up" and had two or three extra em- •ployees 25 Lasseter has not since been reemployed by the Respondent. He testified credi- bly that in the late summer of 1946 he applied unsuccessfully for work at other nearby cotton mills, including the Martha mill at Thomaston, Georgia, a mill at Griffin, Georgia, and another mill at Tartersville, Georgia. In each instance,' so Lasseter testified, he had information that the particular mill needed help. Rul- ing was reserved on a motion by the Respondent to strike this testimony as im- material upon Board counsel's statement that it would be followed by other 'testimony proving the existence of a blacklist in the mills in this area of Georgia. No further testimony was adduced by Board counsel to support this contention. -The testimony will not be stricken as in the opinion of the undersigned it is -material to show diligence on the part of Lasseter in seeking other employment. However, it is deemed entirely inadequate to support a finding that a blacklist •existed and no such finding is made herein. James H. Andrews had been a twister tender for the Respondent for approxi- mately 4 years prior to February 20, 1946. He was on the morning shift under -Second Hand Creamer. He joined the Union in the fall of 1945, and in the .various conferences with management on February 19 and 20, prior to the walk- out, he acted as spokesman for the twister room employees. Andrews' undenied -and credited testimony is that Ellis told the second shift employees at the time 23 This credited testimony of Lasseter was not denied by Ellis. 24 Finding based upon the testimony of Lasseter and Supervisor Williams. Ellis admitted in his testimony that Williams had talked to him two or three times about Lasseter return- =ing to work. He denied that he instructed Williams to get an affidavit from Lasseter and testified that Williams asked him how a man could get out of the Union and that he replied that so far as he knew the best way would be for the party to write a letter to the Union. He admitted that Williams had discussed Lasseter's union affiliation with him. Under the -circumstances, it is found that, Williams was acting on advices he had from Ellis when he sent word to Lasseter that he should get out of the Union, if he wanted his job back. Finding based on the credited and undenied testimony of Lasseter. The undersigned is of the opinion that no inference unfavorable to the Respondent is justified from this ,refusal to hire Lasseter in the summer of 1946, because (a) the record fails to disclose what type of work McBroom had been doing and whether Lasseter was qualified to fill the vacancy, and (b) there is only an inference that McBroom' s job had not in the interim been filled. Furthermore the record otherwise indicates that by at least late summer the twister room crews had been completed. ALDORA MILLS 15 -they walked out, "All you boys that live in the village know that you are going rto have to move." 2e So far as the record discloses, Andrews did not offer to return to work for at least a week after the walk-out, but on Friday, March 1, he came to the mill for his check. At that time, he told Ellis that he was sorry that he had walked .out and said he probably had "made a mistake." He asked that he be given his job back or a recommendation so that he could get another job. Ellis agreed to talk to Plant Manager Vecsey about the recommendation and the next day told Andrews that Vecsey would not give a recommendation, "except for employees." Ellis, at the time, also stated that he was in need of twister hands and suggested that Andrews return the following Monday and apply to Employment Manager Eldridge. When Andrews applied the following Monday to Eldridge, he stated to the latter what Ellis had told him about needing more help in the twister room. Eldridge replied, "we are filled up" and "I don't like the way you and Johnson did anyway." 27 In spite of Eldridge's statement to the contrary the Respondent at the time, was shorthanded in the twister room 26 Andrews has not since been reemployed by the Respondent. His last appli- cation is a letter dated March 21, 1946. Roy Moss worked for the Respondent for some time prior to entering the army during the second World War. He was released from the army apparently in 1945 but had only been working for the Respondent in the twister room as a doffer on the second shift for.2 days at the time of the walk-out. He did not return or apply for work with the Respondent until about Christmas time 1946. At that time he talked to Leon E. Macomber who had in the meanwhile succeeded Vecsey as plant manager. Macomber told him that there were no openings then but that if one developed he would be sent for. Several weeks later Moss again applied to Macomber with the same result. He has not since been rehired by the Respondent26 'Charles Scarborough served in the army for about 4 years but prior to that had worked for the Respondent. On his release from the a:-my the first part of 1946, he returned to work for the Respondent about the middle of January on the first shift in the twister room under Second Hand Creamer. About March 10, 1946, following the February walk-out, he applied for work. Employment 26 As previously noted, the Respondent owned the houses in Aldora Village which were rented to mill employees . The evidence otherwise discloses that a number of the twister room employees occupied these houses at the time of the walk -out. This included , however, some of the twister room employees who were later returned to work and also two of the claimants herein, Lasseter , previously referred to, and Charles Scarborough , and Joe Jones heretofore discussed, and who was discharged in the fall of 1945. There is no evidence in the record that the Respondent at any time made any move to dispossess any of the -Claimants involved in the February 20 walk -out, or any other claimant discussed in this Report who lived in a village house. 21 Johnson apparently was the leader of the group on the first shift that walked out on 'ebruary 20. He had, however, returned to work within a day or two thereafter. 26 Findings in this paragraph based upon the credited and undenied testimony of Andrews relative to statements of Ellis and Eldridge . Ellis testified, and the record otherwise dis- closes, that the Respondent was in need of more employees in the twister room on Monday, March 4, 1946. 26 Finding in this paragraph based upon the credited testimony of Moss. In his testimony .he was not too certain as to the name of the man to whom he talked about returning to work, but he did point out Macomber from a number of the officials sitting at the Respond- ent's table during the hearing. Although Macomber denied that he knew Moss or that the latter had ever talked to him about a job, it is found that Moss did unsuccessfully apply for work with the Respondent about the end of December 1946 and again 6 or 7 weeks thereafter. 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Manager Eldridge told him at that time that there were no openings but agreed to send word to him if one developed. Scarborough also talked to Personnel Manager Neuner about a job about the same time but has not been reemployedl10 Homer W. Crumbley worked for the respondent-for 7 years prior to the walk- out, as a' doffer. He was a member of the Union and about the first of April, after the walk-out, be applied to Eldridge for a job and was told that he would be sent for through his father (who also worked for the Respondent) if an opening developed. He has not since been reemployed and his testimony is credited that since the above application several doffers have been hired by the Re- spondent in the twisting room " Conclusions relative to the walk-out 'In the oral argument Board's counsel contended that the evidence will support a finding that the claimants herein who were involved in the walk-out on Feb- ruary 20, 1946, were in fact discharged on that date. In support of this con- tention he called attention to the fact herein found that, on February 20 when the twister room employees refused to work and left the plant, Supervisor Ellis told them that some of them would not be permitted to return to work and that they would be required to move from company houses. It seems clear from the record that Ellis' general threat on February 20 of possible discharge and eviction to "some" of those who refused to work was made in the hopes that it would cause them to abandon the walk-out That this statement was not in- tended as an actual dischaige, is supported by the fact that Ellis as well as other supervisors thereafter directly appealed individually to apparently all those involved in the walk-out to return to work Although the record is not too complete in that respect, there is evidence that one or two twister room em- ployees, other than the claimants, who were on the Respondent's pay roll on or prior to February 20 (and who presumably engaged in the walk-out) were per- mitted to return to work after Ellis, on February 22, had turned in quit slips against all who had failed to report back to work by that time. In any event, under fairly recent decisions of the Board'- the undersigned is of the opinion and finds that the statements of Ellis on February 20, as well as the issuance of the quit slips inn February 22, were intended primarily as a tactical maneuver de- signed to induce the twister room employees to abandon the walk-out and did not amount to a discharge of the twister room claimants herein."' Although the above acts do not constitute a violation of Section S (3) of the Act, the purpose and effect of threatening discharge and purporting to discharge these strikers was to restrain them from engaging in concerted activities for their mutual aid and protection. It is therefore found that by the activities of Ellis on February 20 and 22 above described the Respondent interfered with, restrained and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8 (1) thereof ii Findings in this paragraph based upon the credited and uncontradicted testimony of Scarborough ai Findings in this paragraph based upon the uncontradicted credited testimony of Crum- bley. Other credited testimony including the Respondent's records of employees in the twisting room subsequent to the walk-out and Supervisor Ellis' testimony, show that there was a shortage of workers in the twisting room in the spring of 1946 3' Matter of Rockwood Stove Woris, etc, 63 N L R B 1297. Matter of Jfatestic Mfg. Co, etc., 64 N.L.R B 950 33 It is also noted that the complaint does not allege the diecrimniatory dischaige of any of the tai ister room employees ALDORA MILLS 17 Board's counsel also argues that the efforts of Ellis and other supervisors, by individual solicitation, to induce the twister room employees to abandon the walk-out constituted an interference with the employees' "collective activity" in violation of Section 8 (1) of the Act There is no evidence of iny threats or promises by the Respondent in this individual solicitation of employees to abandon the walk-out Furthermore, while some of the twister room employees were members of the Union (including three of the claimants), others in the group were not members of that organization. It.is rioted further that at this time the Union, while active, had not proved its majority not had it been designated as the bargaining representative of the Respondent's employees. Moreover, the record fails to disclose that the Union as such was officially involved in the walk-out. Under the circumstances, any efforts on the part of the employer to settle the dispute would necessarily have to be by consultation with the indi- viduals involved. The undersigned is not convinced by the facts herein that the individual solicitation constituted a violation of the Act, and no such finding is made. As the walk-out was an economic strike, the Respondent was fully within its rights as an employer in seeking to replace these strikers provided it was suc- cessful in so doing before they offered to return to work. It is the Respondent's contention that all the claimants involved in the walk-out were replaced by outside help hired before such claimants offered to return to work. The record does not sustain this contention of the Respondent insofar as the claimants, with the exception of Roy Moss, are concerned. It shows that the other four all applied for and were refused employment on or before about the first of April 1946, and that at that time and, later, in the spring of 1946, the Respondent was employing workers in the twister room to do the type of work that these four claimants had been doing prior to the walk-out. Subsequent unsuccessful appli- cation of these four claimants for work confirms the conviction that the Respondent decided to get along without their help in its mill regardless of the absence of proof that any of the four had a poor work record. It is therefore found that the Respondent discriminatorily refused to reinstate Andrews on February 28, Lasseter on March 4," Scarborough on March 16, and Crumbley on April 1, 1946, because of their collective activity in engaging in the walk-out, to discourage membership in a labor organization In its oral argument the Respondent also contended in effect that the claimants involved in the walk-out were not engaged in union activities and that therefore the refusal to reemploy them in any event did not constitute a violation of Section 8 (3) of the Act because such failure to reemploy did not and could not under the facts of the case constitute an attempt to encourage or discourage mem- bership in a union. It is true that of the four claimants above found to have been discriminatorily treated, only three of them were members of the Union and that the record fails to disclose that the walk-out was inspired or participated in by the Union as such. However, the Respondent, for some time prior to the walk-out, knew of the union activity in the mill and had made some efforts to discourage that activity as herein otherwise found. It is also noted that Super- visor Ellis regarded Andrews, a union member, as a leader of the walk-out movement ; and that 2 days after the walk-out, Mathews, at that time head of '° Although March 4 has been found as the date when the Respondent refused to reinstate Lasseter, it is noted that the Respondent knew from Lasseter's wife as early as February 22 that Lasseter planned on returning to work as soon as he was physically. able. 18 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD the time-study department but in training for superintendent, asked employee Brinkley if he had heard that Andrews was "second pal to a union." Nor can it be overlooked that the Respondent in effect offered Lasseter reemployment if he would repudiate the Union. There can be no question that the action of the twister room employees in staging the temporary walk-out, regardless of the- advisability of the effectiveness of such action, constituted concerted activity for their mutual protection, within the meaning of Section 7 of the Act. The moti- vating cause-iof' the Respondent's failure to reinstate Andrews, Lasseter, Scar- borough and Crumbley was their refusal to abandon this concerted activity. Although there is no showing that any union sponsored the walk-out it neverthe- less was concerted activity for mutual aid protected by Section 7 of the Act. Normally concerted activity leads to the formation of a labor organization, but in this instance the Union had organized the plant and was engaged in the process of establishing legally its right to act as exclusive representative of all employees in an appropriate unit (which included the twister room.employees) " Since some of the employees who engaged in the February walk-out were members of the Union, the refusal to rehire any employees for refusing to abandon the walk-out not only discouraged collective activity, but also membership in the existing union.88 The above argument of the Respondent is found untenable, under the circumstances. However, assuming arguendo that the refusal to rehire the four named employees was technically not a violation of Section 8 (3) of the Act, the undersigned is convinced and finds that their treatment was in violation of Section 8 (1) of said Act, and that it is necessary to recommend their reinstatement as hereinafter provided, in order to effectuate the policies of the Act 87 The undersigned further finds that the efforts of the Respondent to get em- ployee Lasseter to abandon the Union constituted an interference with the rights of its employees as guaranteed in Section 7 of the Act, and in violation of Section 8 (1) thereof. Roy Moss only worked 2 days for the Respondent in the twister room prior to the walk-out. The record fails to disclose whether he was a member of the Union or not. In any event, according to his own credited testimony, he did not reapply for work after the walk-out until the following December. At that time and again the following February, when he applied to the Respondent for work, he was told there was no opening for him. The evidence does not disclose whether, in fact, there was an opening in the mill in either December 1946 or February 1947, that Moss would have been qualified to fill. Therefore, no in- ference unfavorable to the Respondent can be justified as to his failure to secure work at such a late period. It will therefore be recommended that the complaint be dismissed insofar as it alleges discriminatory treatment of Roy Moss. 4. Discharge of Hugh A. Williamson Williamson worked for the Respondent for a total of about 3 years. Two or three months prior to his discharge on August 15, 1946, he had been assigned, 35 At this time, the Board , as a result of the Representation hearing the previous fall, had already established the unit and had ordered an election, which as herein otherwise found was won by the Union within less than 2 months after the February walk-out in the twister room. 36 Matter of Lone Star Gas Company, etc., 52 N. L. R. B 1058. 31 Matter of Ever Ready Label Corporation, etc , 54 N. L. R. B. 551. ALDORA MILLS 19, against his, protest, to the job of respooling 38 in the twister department on the second shift under Second Hand D. S. Williams. At the time of his transfer, (on or before June 1, 1946 ), John Ellis , heretofore referred to, was in charge of all the twister room shifts. However, about the end of June, Ellis was dis- charged and was succeeded by J. L. Faulkner. Williamson joined the Union in 1945 and was sufficiently active therein so that he was either elected or appointed. shop steward approximately a week prior to his discharge on August 15. Among other things, Williamson's duties as respooler required-him to count and record the number of spools removed from the bobbin. These recordings made by him on a card were the basis upon which the earnings of other em- ployees on the shift were computed. He was also expected to keep the op- erators of the machines supplied with yarn and keep the alleys clear of empty spool boxes. Williamson was illiterate. He could not read nor write but was able to count and also to sign his name Prior to Faulkner's advent as supervisor in the twister department, Williamson performed his duties as respooler without criti- cism from management. However, the record indicates, and in fact Williamson testified, that during this period he was assisted in his counting and marking of the cards 39 Williams was not a member of the Union and in fact was not eligible because be was a supervisor. However, there is credible testimony that management regarded Williams as being too friendly with union officials. Supervisor Ellis' testimony is credited that 2 days after his [Ellis'] discharge, acting Superinten- dent Mathews told him that be believed that Ellis' release was due in part because of his failure to get rid of Williams. Actually Williams was discharged in September 1946, but there is no allegation in the complaint that Williams' discharge was discriminatory nor would the evidence support such an allegation. It is a fact, however, that Williamson's difficulty with management that even- tuated in his discharge did not begin until Faulkner succeeded Ellis as overseer of the twister room. About a week or ten days after Faulkner took over the duties of overseer he- instructed Second Hand Williams to see that Williamson kept the aisles clear of empty spool boxes and had full boxes on hand. Faulkner also, at this time, asked Williams if Williamson was not "a big union worker." Williams dis- claimed any knowledge of Williamson's union affiliation or activities and Faulk- ner added that he had heard rumors to the above effect. A day or two later, Faulkner, and possibly Williams, talked to Williamson about his failure to keep his spool count straight and about it resulting in complaints from other workers of inequality in earnings. Williams, at that time, insisted that his counts were correct, but the evidence indicates otherwise as will hereafter be Williamson 's testimony is credited that at the time he was transferred to this work he stated to management , "I would rather not have it. I would rather have some other job. I don't want the responsibility ." It is not alleged in the complaint that this transfer was discriminatory , and the evidence will not support a finding to that effect . However, his Supervisor Williams' undenied testimony is credited , that before the transfer other work that Williams had been doing had not "always been satisfactory " and that he had had "a, little trouble" in his previous jobs in the mill. 99 Williamson testified that the "section man" sometimes assisted him in the above respect. From the testimony of Williamson and other references in the record of assistance rendered to him, it is probable that the "section man" referred to in Williamson 's testimony was his immediate supervisor , Williams , whose type of work is also sometimes referred to as that of section man. 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD noted. Within a day or two after this episode Faulkner instructed Williams to discharge Williamson as he was not running his job right and stated that women employees on the machines were complaining that Williamson was not keeping them supplied with spools Williams demurred to this drastic procedure as he had no one to replace Williamson. Faulkner agreed to secure a new respooler.40 At this time which was 2 to 4 days prior to the actual discharge, Williams instructed Williamson that it would be necessary for him to keep the aisles clean, the empty as well as the filled spool boxes in proper order and plenty of yarn on hand for the workers. Williamson replied that he was being required to do the work of two men and that he could not do it all Williams answered that if he was unable to do the work required it would be necessary to replace him with somebody else. Williamson told Williams to "go ahead" and get some- body else for the work 41 The record discloses that the work thus requested of Williamson by his supervisor was the ordinary usual work that had in past been done by the respooler without assistance On August 14, Williamson was advised that he was being replaced by another man. He was paid off the next day. At the time of his discharge Williamson did not question the reason therefor..42 On August 15 while he was waiting for his pay, Williamson talked to Plant Superintendent Mathews and expressed a desire to work for the Respondent. Mathews replied, "Maybe someday we can work out something for you " Two weeks after his discharge he again appealed to Mathews who sent him to Em- ployment Manager Eldridge. The latter told him there was "no opening," but that if one developed he would be sent for. Williamson has reapplied since on two or three occasions but has not been reemployed by the Respondent. The record shows without dispute, and the undersigned finds, that shortly after Faulkner became overseer of the twisting department complaints developed of a discrepancy in the earnings of certain twister room employees who worked on the two shifts then being operated. Under instructions from the pay-roll de- partment Faulkner had a check made of the work on the two shifts. This study developed that on the second shift where Williamson was counting the yarn spools more yarn was being recorded on the spools than came through the twister ma- chine, an obvious impossibility. It also developed that the respooler's records on the first shift were accurate. It is also found that on at least ope previous occasion a respooler had been discharged for failure to do his job properly. From the entire record in the case, the undersigned is convinced and finds that Williamson was properly discharged on August 15, 1946, because of inability to properly perform his job as respooler. In view of the Respondent's attitude toward the Union during this period as herein otherwise found, the question arises whether its failure to reemploy Wil- liamson was not inspired to some extent at least because of the Respondent's 40 Based on reconciliation of testimony of Williams and Faulkner 41 In substance the testimony of Williams and Williamson 42 Williamson testified that when Williams notified him that he iias being discharged he asked, "What have I done" and that Williams replied that he could not tell him However, Williams' testimony, credited as the more probable, is that Williamson when told of his release simply stated, "Well, it couldn't have come at a worse time" and that the super- visor had replied that Williamson had "brought it on himself " It is also noted that Wil- liamson identified his signature to a typed statement dated August 16, 1946, to the effect that he was being released because of his many errors in counting Williamson testified first that lie signed the paper after it had been read to him, but later, although still admit- ting the genuineness of the signature , claimed lie had signed a smaller sized paper This Kist testimony is not credited. ALDORA MILLS 21 suspicion, if not its knowledge, that Williamson was active in the Union. How- ever, no adverse finding in this respect against the Respondent is justified where as here, there was no showing of availability of any jobs in the twister department or anywhere else in the mill that Williamson was qualified to fill. It is also noted in this respect that Williamson had had some difficulties with his previous work in the mill prior to his designation as a respooler. Under the circumstances, the evidence will not support a finding that Williamson was discriminatorily re- fused reinstatement or rehiring. It will therefore be recommended that the complaint be dismissed insofar as it alleges discrimination in the hire and tenure of employment of Williamson. C The refusal to bargain 1 The appropriate unit and the representation by the Union of a ma,oiity therein On August 13, 1945, the Union filed a petition for an investigation and certifica- tion of representatives Pursuant thereto a hearing was held in Barnesville on September 28, 1945, in Case No. 10-R-1585. Thereafter, on March 14, 1946, the Board ordered an election in an appropriate unit consisting of all the Respond- ent's employees "including section men and watchmen, but excluding office and clerical employees, technical and laboratory employees, second hands, overseers, and all other supervisory employees with authority to„hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action." 4' The Union won the election which was held on April 8, 1946, and, accordingly, the Board, on April 23, 1946, duly certified the Union as the exclusive representa- tive for collective bargaining of the Respondent's employees in said appropriate unit. During the preliminary negotiations and the actual negotiations on bar- gaining that followed as will hereafter appear in more detail, the Respondent at no time raised any question of the Union's majority status or its authority to represent the employees At the hearing, for the first time, the Respondent ques- tioned the Union's majority status but proffered no proof of any kind that the Union did not in fact represent a majority. Accordingly, the undersigned finds that on April 8, 1946, and at all times there- after, the Union was the duly designated representative of a majority of the employees in an appropriate unit, and that by virtue of Section 9 (a) of the Act was, on April 8, 1946, and thereafter, the exclusive bargaining representative of all employees in such unit for the purposes of collective bargaining with respect to rates of pay, hours, wages, and other conditions of employment. 43 Board ' counsel calls attention to the fact that Williamson, a union steward , was dis- charged at the time when the union shop committee was discussing grievances with man- agement and when Douty , the state representative of the Union, was trying to get manage- ment to agree on conferences to negotiate a contract . As will hereafter appear, at the request of management , the Union shop committee began to hold weekly meetings with the Respondent's officials , beginning July 17. Williamson was not on this committee He had only been selected as a union steward a week prior to his release and there is no showing that the Respondent was aware of the fact that he was a steward during this period. Furthermore , the record does not disclose that at any of the conferences between manage- ment and the shop committee or in the later discussions with Douty , that Williamson's name came into the discussions, either as a complainant himself or on behalf of other aggrieved employees , The fact that Williamson was discharged during the period when the union shop committee was meeting with management is coincidental and in no way significant 44 66 N. L. R. B 731 809095-49-vol. 79-3 2Y DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1'' 2. The refusal td'bargain Events prior to the actual negotiation conferences On April 17, after the election but before the Board had formally certified the Union as the bargaining agent for the Respondent's employees, Kenneth Douty, the Georgia State Director for the Union, endeavored by letter to the Respond- ent to arrange for a time to begin negotiations on a contract. In this letter Douty suggested that the bargaining commence at the mill in Barnesville the week of May 8, 1946.' He also indicated that the Union hoped to submit to the Respondent a proposed contract prior to the initial meeting. Mill Manager Veesey replied to this letter on April 22 in a communication addressed to the Union's office in Atlanta, Georgia, and to the attention of "Mr. Kenneth Douby, Ga. State Director." In this letter Vecsey wrote in part as follows : I have contacted our negotiator at Akron, Ohio, and he advises me that he will be unable to attend a conference any sooner than the latter part of May. He is presently tied up with two other negotiations and will be free to take our case on after he has concluded the others. I would appreciate your sending me a duplicate copy of your basic contract proposal so that I may send one to Akron for our negotiator's perusal.'5 On May 7, Douty wrote Vecsey enclosing two copies of a proposed contract and asked that, "if possible," negotiations begin "before the end of the month." On May 20, Douty wired Vecsey asking that the latter "advise" an "acceptable" date to begin negotiations. Receiving no response to this wire, Douty, on May 23, wrote Vecsey, stating that no response had been received from his wire requesting a definite date to begin negotiations, and adding "Although we regret having to do so, we shall be forced to file charge; of failure to bargain with the National Labor Relations Board unless negotiations can be started in the near future." On May 29, Douty wrote the General Tire and Rubber Company at Akron, calling attention to the fact that the Union had won the election at the Aldora plant in April but that they had since been unable to arrange for a negotiating date. He urged the necessity for prompt arrangement for a bargaining conference to avoid the necessity of the Union filing charges. On May 30, D. R. Cumming, one of the attorneys of record for the Respondent in the present case, wrote Douty that the "Company's specialist" would probably be available for negotiations during the second week of June, but that he would advise Douty more definitely as soon as he received further information from Vecsey. On June 4, Douty wired Cumming that he would be available from the 13th through the 15th of June. The same day, A. J. Teusch, director of industrial relations for the General Tire and Rubber Company, wrote Douty that he had been busy negotiating other contracts hilt that it then appeared that he would be able to be in Barnesville "about June 15." Douty wired Teusch on June 6 that he would be out of the State from the 17th to the 21st of June and asked that the conferees meet between the 12th and the 15th of the month Ae Douty received no response to this wire, and on June 7 wrote Cumming suggesting June 22. Cumming replied by letter dated June 27 stating that the other matters Teusch was engaged in had taken an "unexpected turn 45 The record otherwise discloses without dispute that Alders. Mills is a wholly owned; subsidiary of the General Tire and Rubber Company with headquarters at Akron, Ohio. to At the time this last wire was sent by Douty he presumably also had before him a later letter from Cumming that Teusch would not be available until the 17th or 18th of June. ALDORA MILLS 23- about which you probably know-more than I do," 17 and his availability was uncertain. Douty on July 16 wired Teusch, "Am filling failure to bargain charges with N. L. R. B. tomorrow unless negotiations set for Aldora Mills. Please advise." Before sending this wire, Douty tried unsuccessfully to reach Teusch at Akron by long distance telephone. In the meanwhile, the Barnesville Local for the Union, which had not as yet received its charter or been formally organized, elected a grievance committee consisting of Lester Meeks and four other mill employees. Although this grievance committee had never met with the Respondent, the latter apparently was aware of its existence, because on July 17 Superintendent Mathews went to Lester Meeks' home in Aldora Village and asked him to round up the other members of the grievance committee and bring them to the conference room in the mill offices. Meeks did so and when the committee arrived at the conference room, they found Plant Manager Vecsey, Superintendent Mathews, and a stenographer. Vecsey announced that he had 'found some inequalties in the wage schedule and that there would be a 3 cents an hour wage increase in some jobs and 1Y/2 cents an hour increase in certain other jobs in order to equalize the pay. He also stated that certain jobs found to be paid above the average would ba permitted to stand. It was agreed that subsequent meetings would be held weekly between the griev- ance committee and management. Thereafter, for several weeks, a meeting was held every Wednesday between management and the grievance committee. Douty was not advised of the meet- ings, nor was his name mentioned in the discussions. At a special meeting on Tuesday, July 30, called by the Respondent, Veesey announced a general in- crease 48 During one of these meetings in response to a question from manage- ment as to whether the Local had any officers, Meeks responded that he was "acting head" of the Local. Aside from the announcement of the wage increases above referred to by management, which the Union committee acquiesced in, the matters discussed had to do with individual employee grievances. There were no discussions about a proposed contract and no reference thereto, excepting that in the July 30 special meeting or the July 30 regular Wednesday meeting Vecsey asked Meeks what the Union "intended to do" and what it was waiting for. Meeks apparently communicated to Union State Director Douty Vecsey's inquiry as to what the Union was going to do because on July 31 Douty imme- diately wired Vecsey as follows : The union committee has reported that you have indicated to them that delay in negotiations was on the part of the Union. I called your of ee yesterday and found you were out of town. This is to reaffirm our request for a meeting which we have previously made to Mr. Cumming and to Mr. Teusch without result. Upon receipt of this wire Vecsey wired Douty There is nothing to preclude the union committee from bringing up any subject of interest to our employees at any meeting. ,11 This had reference to strikes in other plants of the parent company, reference to which otherwise appears in the record. sa In the meanwhile, on July 27, as supplementary to the proposed contract previously submitted as a foundation for bargaining conferences , Douty had submitted to the Respond- ent a proposal for a general wage increase. 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Douty then wired Vecsey stating that his previous telegram had in mind contract negotiations and asked if the Company was willing to begin contract negotiations at the August 7 meeting. Vecsey replied by wire on August 3: There is nothing to preclude the union committee from bringing up any subject of interest to our employees at any meeting. On August 6 Douty wired Vecsey asking if it would be possible to meet "on wages and contract" on Tuesday, Wednesday, or Friday of the following week. Vecsey answered this on the 10th (Saturday) reiterating that he was willing to have Douty sit on "our committee meeting held each Wednesday morning." He also added, "Nothing prevents the committee from bringing up any subject of interest to our employees as heretofore mentioned " As a result of the communi- cations, Douty arrived in Barnesville and appeared at the committee meeting with management on the morning of Wednesday, August 14. So far as the record discloses this was a comparatively short meeting. Douty announced that he was ready to proceed with negotiations on a contract and-presumably it was then arranged that a meeting be held at the plant on August 27 for the purpose of negotiating a contract. At the August 14 conference Douty called attention to the fact that at the time the Union submitted its original proposed contract it also requested certain information from the Respondent relative to the current wage schedule and that the information had not as yet been received. Ile again requested this information. Conferences concerning collective bargaining from August 27 , 1946, to March 20, 1947 • At the August 27 conference, the Respondent was represented by Attorneys Candler and Cumming, and by Manager Vecsey and Superintendent Mathews.41 The Union was represented by Douty and the local shop committee. Candler did most of the talking for the Respondent and Douty acted as spokesman for the Union. At the opening of the conference, Douty again requested that the Com- pany furnish information relative to wage schedules. He conceded that the Union had submitted a general wage proposal on July 27, but stated that they needed the wage information covering about 4 weeks prior to the general 8- cent an hour wage increase granted by the Company on July 30 so that the Union could reduce the general wage proposal to concrete terms. It was agreed that the desired wage information would be submitted as soon as it could be prepared by the Company, and in the meanwhile the conferees would forego further wage discussions.50 Agreement was reached on the preamble, and cer- tain subparagraphs of the opening sections of the Union's previously submitted proposal. At three meetings held thereafter, on September 6, 27,61 and October 7, agree- ment was reached on provisions covering holidays, duration of the contract, penalties for breach of its provisions, safety and health terms, and use of the Company bulletin board. The Union agreed to strike a proposal on shop rules. At the last of these three meetings (October 7) an alternative proposal of the 49 Vecsey attended none of the conferences after he was succeeded by L E Macomber as mill manager about January 1, 1947 Macomber who had come to the mill from New England in late October 1946 , attended the conferences thereafter . Personnel Manager Neuner was also in attendance at some of the later meetings 55 The Respondent submitted the wage information on September 24, 1946. 51 At the September 27 meeting , Mr. Candler was not present but his law partner, Mr. Weekes, represented the Company. ALDORA MILLS ' ` IN 25 Union on work loads was discussed, as was arbitration and union security, but no accord was reached on any of them. Between the period beginning October 14, 1946, and ending January 17, 1947, the conferees held six meetings. As a result of these meetings and various proposals and counterproposals on each side, the, parties reached substantial accord on most of the terms of a bargaining contract. Arbitration machinery was provided as the ultimate method of settling possible disputes involving terms of the proposed contract. Areas of dispute included a general wage scale, in- surance, union security, seniority and leave of absence, and management pre- rogatives. At the January 17, 1947, meeting, very little progress having been made to settle these conflicts, to avoid a stalemate and at the Union's sugges- tion, it was agreed that the next meeting be held before United States Conciliator McLaughlin in Atlanta. On January 29, 1947, in accordance with plans previously outlined, the nego- tiators met with United States Conciliator Frank R. McLaughlin at the latter's office in Atlanta, Georgia At this conference, the Company made a proposition that they would include in the proposed contract a provision for leave of absence on union business "provided the Union would drop its request for top seniority for members of the Union's shop committee This was agreed to. The Union of- fered to accept either maintenance of membership or the check-off with the under- standing that wages would remain as they were but with a reopening clause in the contract applicable when and if a new pattern of wages was set in the textile industry of the south. The Company asked time to study this proposal and the meeting adjourned for that purpose." During this intermission of approximately a week, the Union submitted to the Company several written proposals on wages and a wage reopening clause, as well as one on union security. The Company also submitted to the Union a written proposal on a wage reopening clause. At a conference before the Conciliator on February 11, these various proposals were discussed in considerable detail but no agreement was arrived at. An area of mutuality was found, however, on the question of the Company granting an immediate general wage increase provided the industry pattern called for such increase This conference closed with the understanding that the Union would submit in writing to the Company its ideas covering wage changes. During the interval before the next meeting with the Conciliator on February 19, the Union submitted three different proposals on wage reopening. The last Union proposal in this respect, submitted on February 15 and whicn is a restate- ment of the two previous proposals, reads as follows : Six months from the date of this agreement, both parties shall examine the Consumer's Price Index for the Atlanta area, compiled by the Bureau of Labor Statistics of the U. S. Department of Labor. If the index has risen or fallen by as many as five points either party may submit to the other party a wage proposal based on the increase or decrease. In the event agreement is not reached within 15 days of submission of the proposal, either party shall have the right to cancel the agreement on 30 days' notice. Notwithstanding the above, in event of a general wage increase in the industry in Georgia, the Company shall apply such increase immediately as Unless otherwise indicated , findings relative to what transpired at the various negotia- tion meetings prior to January 29, as well as the meetings subsequent to that date as will hereafter appear, are based upon a digest of stenographic reports of these various meetings received in evidence , as well as other pertinent exhibits and testimony. 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon its becoming effective, with the Union reserving the right to negotiate any difference arising from the application of-such increase." On February 17, the Respondent wired Douty at Atlanta as follows : Effective today wage increases are being made at Aldora Mills according to the general pattern set by the cotton textile industry in Georgia. We meet next Wednesday at which time we will be glad to discuss this action with you. The same day the Respondent told the employees that a general wage increase had become effective. On receipt of the communication Douty, by wire, imme- diately answered taking exception to this unilateral action on the part of the Respondent and stating that he expected to negotiate terms of the increase at the coming meeting. However, prior to that meeting, and about February 15, Douty, because of the change in the industrial wage pattern, had submitted to the Re- spondent through Conciliator McLaughlin a proposed wage increase At the February 19 conference Douty again protested against the action of the Respondent in announcing a general wage increase when it was a subject of negotiations. Candler, however, insisted that the question of a general wage increase had actually been agreed upon by the negotiators in the event of an in- crease in the wage pattern in the textile industry, and that as the amount of the raise had not been announced it was still a matter for present negotiation. He also called attention to the fact that prior to the announcement of the wage increase, the Respondent had received through the Conciliator a proposal from Douty for a general 10 percent an hour increase in wages. Using Douty's proposal as a basis, the negotiators then agreed upon the amount of the increase and the effective date thereof. They then discussed proposals for a wage reopening clause based on future changes in the cost of living, but reached no accord. At three conferences at Atlanta before the Conciliator on February 25, March 13 and 20, and one meeting at Barnesville on March 6 without the Conciliator, the parties discussed a shift differential for the "graveyard shift," insurance, union security and certain unagreed portions of the management rights section. Management again brought up the subject of arbitration TM and made a proposal for arbitration of individual wages and a 5-cent differential for the third shift (which the Union had asked for), provided arbitration of work loads, the check- off and the insurance clause be eliminated from the contract. Douty took the posi- tion on March 20 that the arbitration matter had been previously settled and as they were in substantial agreement on all other matters asked that the parties arrange to meet again without delay. Management insisted that the arbitration feature was still in dispute and agreed to meet with the Union representatives on April 1, 1947, after the completioli of the present hearing.TM Conclusions relating to bargaining It is the contention of counsel for the Board that the Respondent showed bad faith in delaying the opening of the bargaining negotiations for 4 months, par- es In the meanwhile, the Company had submitted to the Union its proposal on a wage in- crease providing for a general wage increase if wages in the textile industry showed an increase. 64 Notwithstanding the apparent settlement of this provision (originally requested in the Union's proposal ), the subject was injected by management into the bargaining conferences -on several occasions after January 1947. 55 The record, shows without dispute that management submitted a counterproposal on November 4, 1946, containing a provision for arbitration of individual grievances as well as work loads. ALDORA MILLS,- n27 ticularly in view of its unilateral increase in wages announced to the union shop committee on July 17 and July 30, 1946. In evaluating the Respondent's actions in this respect between April and August 1946, the Respondent's illegal attempt, the previous August, to prohibit the distribution of union literature as well as its contemporaneous action,in refusing to reinstate the twister room employees in the spring of 1946, as heretofore found, must be considered. As heretofore indicated, the effort to prevent the distribution of union literature was an isolated instance of interference not thereafter repeated, and must be considered as such. While, as heretofore found, the effect of the discriminatory refusal to rehire the four twister room employees was to discourage member- ship in the Union, the record discloses that the punitory action of the Respondent was directed against those twister room employees whose collective activity in refusing to return to work (unassisted in any way by the Union, so far as the record discloses) was deemed unwarranted by management. It can be conceded that these events indicate a lack of enthusiasm on the part of the Respondent for union organization, or collective activity, of its employees. They are not, how- ever, adequate to warrant a finding that the Respondent had a fixed design not to deal with the' Union once it had established its legal right to represent the employees in collective bargaining, and no such finding is made. Nor can it be said in fairness that the Respondent in bad faith unduly pro- longed the opening of the bargaining negotiations in the spring of 1946, under the circumstances then existing. At that time, A. J. Teusch was director of industrial relations for the parent Company, the General Tire and Rubber Company, and in charge of all collective bargaining negotiations for all its plants, including the Respondent's. When Douty first requested a date to begin bargaining, Plant Manager Vecsey promptly answered him stating that the official "negotiator" in Akron had been notified of the request to begin nego- tiations, but that Teusch was "tied up with two other negotiations" and would not be available until the end of May. Thereafter Douty and Teusch were unable to select a June date that was mutually agreeable. About this time other out- side matters complicated Teusch's availability in Barnesville, and the parent Company authorized Vecsey to bargain with the Union for his mill. However, after he had been so authorized and until about the middle of Au- gust, Vecsey proceeded in a manner that can be interpreted as (a) a deliberate intent to discredit and by-pass the employees' bargaining agent, or (b) an utter lack of comprehension of the responsibilities and obligations given him as the official bargaining negotiator for the Respondent. Although the Textile Workers Union of America (not the local of that Union) had been certified as the bar- gaining agent for the employees, and Vecsey had previously corresponded with Douty as the representative of the Union, lie took no action in July to advise Douty that he and not Teusch was the authorized negotiator. Instead on July 17, he called in the shop committee of the Local, secured their approval to a cor- rection upward of some wage rates," and thereafter, by mutual agreement with the shop committee, met with them weekly and discussed various grievances. In a special meeting of the local committee called by Vecsey, he announced and secured the approval of the committee to a general wage increase. At no time during these meetings did Vecsey request or even suggest that Douty be brought 58 It is noted that July 17 was the date when Douty, by previous wire, had advised the parent Company that he would file charges unless a date for bargaining was set by that time. However, the record fails to disclose whether Douty carried out this threat and actually filed charges at that time, or that Vecsey, on July 17, had been advised of the threat to do so. 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mn to the meetings or notified that they were being held.. It was not until July 30 or 31, when Vecsey asked Lester Meeks of the shop committee and who was acting president of the Local, what the Union was "waiting for" that Douty became aware of the weekly meetings. So far as the record discloses, there had been no collective bargaining in the Aldora Mill prior to 1946. Vecsey had been manager since about 1940 having been promoted from an inferior position. It can be believed, as testified to by him, that when he was authorized to bargain for Respondent, that he was inex- perienced in bargaining, but his further testimony that he supposed that the local shop committee was his proper avenue of approach in order to bargain with the Union stretches credulity. He not only knew that Douty was the Union's bar- gaining representative, but he also knew that the Union (through Douty) was interested in bargaining for a wage increase, among other things He was aware that collective bargaining was deemed so important by the parent Company that no one in the local mill had previously been permitted to negotiate for a contract. Furthermore, Judge Cumming, one of the Respondent's attorneys of record, was available in July for consultation by Vecsey if the lattel had any doubt as to the modus operandi. Notwithstanding this knowledge, he chose to deal with the local committee. It is also noted that during this period no mention was made of a contract, or of negotiations for a contract, in the various meetings with the shop committee. The undersigned finds that Veesey's action in July and early August 1946, did not constitute bargaining in good faith, but was an attempt to by-pass and discredit the Union's known bargaining representative and to deal with a local committee of employees. Notwithstanding this poor beginning, the negotiators really made progress in bargaining after they got started in August. By the end of November, as a result of a number of conferences and the submission of proposals and counter- proposals, they had reached accord on arbitration and a substantial number of other clauses In later conferences before the Conciliator, the area of dispute was further narrowed, but when the negotiators had reached agreement on a wage reopening clause to be based on the cost of living, management unilaterally announced a wage increase and then wired Douty that they would he "glad to discuss" the announced increase with him at the next meeting. When the details of the announced wage increase had been negotiated, and it looked like the parties were again in substantial accord on all but a few matters, the Respondent in- sisted in reopening the arbitration clause, which had been agreed upon the pre- vious fall. The unilateral announcement of wage increases, both before the actual nego- tiations and during them, did not show good faith in bargaining," especially as the Respondent had been advised that a wage increase would be one of the major issues in the negotiations. On the contrary, it indicated a design to discredit the employees' representatives. That the Respondent was going through the motions only of bargaining and with no desire or intention to reach an accord in all matters is evidenced by its insistence of resurrecting the already agreed upon arbitration clause, at a time when the parties were in practical accord on most other proposals. Under all the facts as herein appear, the undersigned finds that, by the action of Manager Vecsey in ignoring Douty and dealing with the shop committee, by the unilateral announcement of wage increases, and by E7 Matter of The Barrett Company, etc., 41 N. L . R. B. 1326; N. L R. B. V. Reed d Prince, 118 F. ( 2d) 874 (C. C. A. 1 ), certiorari denied 313 U. S. 595. ALDORA MILL'S 29 insisting on reviewing discussion -'of the already settled arbitration provision, the Respondent has in fact refused, to bargain with the Union 6B 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. Since it has been found that the Respondent unlawfully failed and refused to bargain collectively with the Union as the exclusive representative of the em- ployees in the unit heretofore found appropriate, the undersigned will recom- mend that the Respondent upon request bargain collectively with such Union as such exclusive representative and, in the event that an agreement is reached, embody such agreement in a signed contract. It has been found that the Respondent discriminatorily failed to reinstate Homer Crumbley, James Lasseter, James H. Andrews and Charles Scarborough at a time when there were positions available for them, because they engaged in collective activity. It will therefore be recommended that the Respondent offer to each of them immediate and full reinstatement to his former or substan- tially equivalent position b9 without prejudice to his seniority or other rights and privileges. It will be further recommended that the Respondent make each of ,them whole for any loss of pay he may have suffered by reason of the discrimi- natory action, by payment to each of them of a sum of money equal to the amount he normally would have earned as wages from the date of the discriminatory refusal to rehire to the date of the offer of reinstatement, less his net earnings A0 during said period 61 By its interference with the employees' rights under the Act as heretofore found, by the discriminatory treatment of certain twister room employees be- cause of their collective activity, and by refusing to bargain with the Union, the Respondent evidenced a purpose to defeat self-organization among its employees. It will therefore be recommended that the Respondent cease and desist from in any manner interfering with, restraining, or coercing its employees in the exer- cise of the rights guaranteed by Section 7 of the Act. 58 Matter of Central Minerals Co., etc., 59 N. L. R. B. 757. ae Employment at "substantially equivalent" position does not constitute compliance unless the "same" position no longer exists The remedial provisions of the Act contem- plate the restoration as nearly as possible of the situation which would have existed except for the discrimination. See Matter of The Chase National Bank, etc., 65 N. L. R. B. 827. so Matter of Crossett Lumber Company, 8 N L. R B 440 m As previously tound, the action of the Respondent in failing to reinstate the four twister room employees constituted a violation of Section 8 (1) of the Act, even if it be held that, technically, such action did not violate Section 8 (3) thereof ; their reinstatement is necessary in either case to effectuate the policies of the Act. See footnote 37, supra. 30`' DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon 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. Textile Workers Union of America, C. I. 0., is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment and the terms and conditions of employment of Homer Crumbley, James Lasseter, James H. Andrews, and Charles Scarborough, thereby discouraging membership in a labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) and (1) of the Act. 3. All the Respondent's employees, including section men and watchmen, but excluding office and clerical employees, technical and laboratory employees, second hands, overseers, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of em- ployees or effectively recommend such action, at all times material herein con- stituted and now constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4. Textile Workers Union of America, C. I. 0., was on April 8, 1946, and at all times since has been, the exclusive representative of all employees in such unit for the purposes of collective bargaining within the meaning of Section 9 (a) of, the Act. 5. By refusing to bargain collectively with Textile Workers Union of America, C. I. O., as the exclusive representative of the employees in the appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (5) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (1) of the Act. 7. The foregoing unfair labor practices are unfair labor practices affecting* commerce within the meaning of Section 2 (6) and (7) of the Act. 8. The Respondent has not engaged in unfair labor practices by laying off Joe Jones, by refusing to reinstate Roy Moss, or by the discharge of Hugh Williamson. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that Aldora Mills, its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in Textile Workers Union of America, C. I. 0., or in any other labor organization of its employees, by refusing to reinstate employees because they engaged in collective activity, or by discriminating in any other manner in regard to their hire and tenure of employment ; (b) Refusing to bargain collectively with Textile. Workers Union of America, C. I. 0., as the exclusive representative of the employees in the unit herein found to be appropriate ; (c) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the rights to self-organization, to form labor organiza- tions,' to join or assist Textile Workers Union of America, C. I. 0., or any other ALDORA MILLS- labor organization, to bargain collectively through representativesQof 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 effectuate the policies of the Act : (a) Offer to Homer Crumbley, James Lasseter, James H. Andrews, and Charles Scarborough immediate and full reinstatement to their former or sub- stantially equivalent positions and make them whole for any loss of wages in the manner outlined in the section herein entitled, "The remedy" ; (b) Upon request bargain collectively with Textile Workers Union of America, C. I. 0., as the exclusive representative of all employees, including section men and watchmen, but excluding office and clerical employees, technical and labora- tory employees, second hands, overseers, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action ; (c) Post immediately at its mill in Barnesville, Georgia, copies of the notice attached hereto marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon the receipt thereof and maintained by it for sixty (60). consecutive days in conspicuous places including all places where notices to employees cus- tomarily are posted. Reasonable steps shall be taken by the Respondent to see that the notices are not altered, defaced, or covered by other material; (d) Notify the Regional Director for the Tenth Region (Atlanta, Georgia), in writing within ten (10) days from the date of receipt of this Intermediate Report what steps the Respondent has taken to comply herewith. It is also recommended that the complaint be dismissed insofar as it alleges discrimination by the Respondent with respect to Joe Jones, Roy Moss, and Hugh Williamson. It is further recommended that, unless on or before ten (10) days from receipt of this Intermediate Report the Respondent notifies the said Regional Director in writing that it will comply with the above recommendations, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. 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, Washington 25, D. C, an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any 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 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. J. J. FITZPATRICK, Trial Examiner. Dated June 3, 1947. APPENDIX A NOTICE TO ALL EMPLOYEES • 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 TEXTILE WORKERS UNION OF AMERICA, C. I. 0., 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 Homer Crumbley, James Lasseter, James H. Andrews, and Charles Scarborough immediate and full reinstatement 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 discrimination. 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 understanding in a signed agreement. The bargaining unit is: All employees, including section men and watchmen, but excluding office and clerical employees, technical and laboratory employees, second hands, overseers, and all other supervisory employees with authority to hire, pro- mote, discharge, discipline, or otherwise effect changes in the status of em- ployees or effectively recommend such action. 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 because of membership in or activity on behalf of any such labor organization. ALnoRA MILLS, 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.