Opelika Textile Mills, Inc.

In the Matter of OPELIKA TEXTILE MILLS, INC., and TEXTILE WORKERS UNION OF AMERICA, CIO Case No. 10-C-21841.-Decided February 11, 1949 DECISION AND ORDER On October 13, 1948, Trial Examiner William F. Scharnikow issued his Intermediate 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 Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report, together with a support- ing Brief., The Board 2 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief filed by the Respondent, and the entire record in the case, and for the reasons hereinafter set forth finds merit in the Respond- ent's exceptions. 1. The Trial Examiner found that the Respondent discharged Ellis Garrett on January 13, 1947, because of his union membership and leadership. We do not agree. We find no convincing reason for inferring, as the Trial Examiner does, that 1 month before the discharge Overseer Scroggins, because of his knowledge of Garrett's union leadership, "willingly embraced the possible loss to the Respondent of a good warp hand such as ' The recommendations of the Trial Examiner that certain allegations of the complaint be dismissed are hereby adopted , as no exceptions to the Intermediate Report have been filed by the Geneial Counsel or the Union . Although the record contains testimony in support of some of these allegations , the Trial Examiner 's credibility resolutions dispose of them, and we will not overrule these resolutions , absent a showing that they are clearly erroneous. 2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended , the Board has delegated its powers in connection with this case to a three-man panel consisting of the undersigned Board Members [ Chairman Herzog and Members Reynolds and Gray ] 81 N. L. R. B., No. 104. 594 OPELIKA TEXTILE MILLS, INC. 595 Garrett." On the contrary the evidence indicates that on this occasion Scroggins at first refused to accede to Garret's request for a transfer to overhauling work, and that when pressed by Garrett he finally agreed to the transfer reluctantly, because of his expressed doubt as to Garrett's capacity to perform the more arduous tasks of an overhauler. The evidence further shows that Garrett thereafter performed the job of overhauler for a month, before being discharged for unsatisfac- tory performance. In view of these circumstances, and on the record as a whole, we are not convinced that the Respondent discharged Ellis Garrett because of his union membership and leadership. We therefore reverse the Trial Examiner's finding as to him. 2. The Trial Examiner found that the Respondent, by the conduct of its second hands, J. W. Harris and John Tilley, in asking em- ployees whether they had joined the Union,3 violated the Act. How- ever, the Trial Examiner further found that this isolated interrogation would not be enough to warrant a finding of unfair labor practices if it stood alone; and no exception was filed to this finding. As we have reversed the Trial Examiner's finding as to Garrett, the interrogation here does stand alone. On the basis of the entire record, and because of the manner in which the issue comes before us in this particular case, we shall reverse the Trial Examiner's unfair labor practice finding based on the interrogation.' 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 complaint issued herein against the Respondent, Opelika Textile Mills, Inc., Opelika, Alabama, be, and it hereby is, dismissed. INTERMEDIATE REPORT Mr. Milton 0. Talent, for the General Counsel. Messrs. TV. Edward Sictnson and William J. Schloth , of Smith, Elliott and Swinson, of Columbus, Ga., and Mr. N. D. Denson, of Opelika, Ala., for the Respondent. Mr. Jerome A. Cooper, of Birmingham , Ala., for the Union. The Respondent excepted to the Trial Examiner 's finding of fact in this respect, asserting that the evidence scows only that second hand Harris might have interrogated two employees. In view of our disposition of the Trial Examiner 's ultimate 8 (a) (1) finding, it is unneces- sary for us to resolve this minor factual issue 4 Matter of Rice-Stix of Arkansas , Inc , 79 N L. R B. 1333 ; Matter of Pure Oil Company, 75 N. L. It. B 539, Matter of E. I. Du Pont de Nemours & Company, 62 N. L R B 816 829595-50-vol 81-39 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD STATEMENT OF THE CASE Upon a "third amended charge" filed on December 10, 1947,' by Textile Workers Union of America, C. I. 0., herein called the Union, the General Counsel of the National Labor Relations Board,' by the Regional Director for the Tenth Region (Atlanta, Georgia) issued a complaint dated June 18, 1948, against Opelika Textile Mills, Inc., of Opelika, Alabama, herein called the Re- spondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act,` as reenacted in Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the Labor Management Relations Act of 1947,° herein respectively called the Act and the amended Act. Copies of the complaint, the "third amended charge," and a notice of hearing were duly served on the Respondent and the Union on June 18, 1948. With respect to the unfair labor practices, the complaint as amended at the hearing, alleges in substance: (1) that, on and since approximately August 1, 1946, the Respondent by certain named "officers, agents, and employees," and in violation of Section 8 (1) of the Act as reenacted in Section 8 (a) (1) of the amended Act, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act as reenacted in Section 7 of the amended Act, by (a) making intimidatory and coercive state- ments to discourage union membership and activity and to discourage activities on the part of its employees for the purposes of collective bargaining and other mutual aid and protection; (b) interrogating its employees about their union affiliation ; (c) attending and attempting to interfere with union meetings ; (d) spying upon and keeping under surveillance union members and the meeting places, meetings, and activities of the Union; (e) threatening the discharge of union members and refusing to hire and employ individuals who were union members; (f) assigning and transferring union members to more lucrative jobs with hours designed to interfere with and discourage union membership and activity; (g) threatening to close the plant rather than continue the employ of union employees; (h) making derogatory, derisive, and disparaging remarks and statements concerning the Union and its leaders; and (i) seeking to insti- gate, foment, and encourage racial strife, dissension, and distrust in order to prejudice its employees against the Union; and (2) that, in violation of Sec- tion 8 (1) and (3) of the Act as reenacted in Section 8 (a) (1) and (3) of the amended Act, the Respondent discharged Leonard Milan on or about October 22, 1946, George Pierce Thornton on or about October 31, 1946, Dorothy Huck- aby on or about November 20, 1946, Lewis Jones on or about November 27, 1946, and Ellis M. Garrett on or about January 13, 1947, and has since refused and failed to reinstate them, thereby discriminating in regard to their hire and tenure of employment in order to discourage membership in the Union. In its answer, the Respondent admitted certain allegations of the complaint but denied the commission of any unfair labor practices. i Actually the second amended charge, which was Initially served upon the Respondent on December 12, 1947. The original charge was filed on January 3, 1947, and a first amended charge on February 24, 1947. 2 The General Counsel and his representative are herein referred to as the General Counsel ; and the National Labor Relations Board, as the Board. 8 49 Stat. 449. 4 61 Stat. 136. OPELIKA TEXTILE MILLS, INC. 597 Prior to the hearing in this case, the Respondent demanded, Trial Examiner David London (duly designated by the Chief Trial Examiner) ordered,' and the General Counsel furnished to the Respondent a bill of particulars concerning certain allegations of the complaint. Pursuant to notice, a hearing was held in Opelika, Alabama, from July 19 to 22, 1948, inclusive, and from August 9 to 12, 1948, inclusive, before the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The General Counsel, the Respondent, and the Union participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the beginning of the hearing, the undersigned granted motions by the General Counsel to amend the complaint but denied (1) a motion by the General Counsel to make the answer of the Respondent more specific; and (2) a motion by the Respondent to dismiss the complaint on the grounds (a) that the charges basic to the complaint were not filed and served within 6 months after the unfair labor practices complained of as required by Section 10 (b) of the amended Act;' and (b) that the complaint failed to allege that the charging Union had complied with the requirements of Section 9 (f), (g), and (h) of the amended Act. During the course of the hear- ing, after the General Counsel had completed his case in chief, the undersigned granted a motion by the Respondent to dismiss the complaint so far as it alleged the Respondent's discriminatory discharge of Dorothy Huckaby, who, although subpenaed to testify, had not appeared at the hearing.' At the end of the hear- ing, the undersigned denied motions by the Respondent to strike certain testimony and to dismiss the complaint for want of a showing that the Union had com- plied with the requirements of Section 9 (f), (g), and (h) of the amended Act. The undersigned, however, reserved decision upon motions by the Respondent to dismiss the complaint for want of proof of the allegations concerning the Re- spondent's unfair labor practices. These motions are now disposed of in accord- ance with the considerations, findings, and conclusions hereinafter set forth. The undersigned granted an unopposed motion of the General Counsel to conform the pleadings to the proof in such minor matters as the spelling of names and dates. The parties waived oral argument. Since the hearing, the undersigned has received a brief from counsel for the Respondent. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent , an Illinois corporation with its principal offices and places of business at Chicago, Illinois, and Opelika, Alabama, is and has been engaged at AS mills at Opelika, Alabama , in the manufacture, sale, and distribution of cotton cloth and related products . In the course and conduct of its business operations 5 The Regional Director referred the Respondent's demand for a bill of particulars to the trial Examiner. Trial Examiner London denied certain demands and granted others. 6It appeared from the exhibits admitted in evidence and the stipulation of counsel, how- ever, that the "third amended charge" upon which the complaint was issued, was served on the Respondent on December 12, 1947, and thus within 6 months after the effective date of the amended Act. ° The evidence of witnesses produced by the General Counsel, so far as it concerned Huckaby, merely established her election as treasurer of the Union, and her discharge. There was no evidence as to the circumstances of her discharge. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at its Opelika mills during the year ending February 1, 1947, the Respondent purchased raw materials, consisting principally of cotton, valued in excess of $1,000,000, approximately 90 percent of which was purchased outside the State of Alabama and shipped in interstate commerce to the Opelika, Alabama, mills. During the same period, the Respondent miinufactured and sold their finished products, consisting principally of cotton cloth, valued in excess of $1,000,000, approximately 90 percent of which in value was sold and shipped to customers outside the State of Alabama. The undersigned finds that the Respondent is engaged in commerce within the meaning of the Act and the amended Act. II. THE ORGANIZATION INVOLVED Textile Workers Union of America, C. I. 0., is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES 8 A. Introduction In August 1946, the Union began organizing the Respondent's employees. In the latter part of September and the beginning of October, it held two meetings for employees in the Park Hotel in Opelika and thereafter held employee-meet- ings in Woodman's Hall, also in Opelika, on an average of once a week until January 1947. In September or October, 1946, employees Ellis Garrett, George Arwood, and Dorothy Huckaby were elected respectively the president, vice pres- ident, and treasurer of the Union's local group. On August 21, 1946, at approximately the time the Union began its organiza- tional campaign, the Respondent hired Thomas Holmes Floyd, a newcomer to the Respondent's plant, as its general manager, to succeed L. H. Rice, who had left the Respondent's employ a few months previously. Sometime in September 1946, General Manager Floyd instructed his overseers (who were in effect, around-the-clock, departmental foremen) that there was to be no interference with the union activities of the employees, that smoking within the plant gates was forbidden, that the efficiency of the weave room was to be increased to 90 percent, and that these instructions were to be transmitted by each overseer to his second hands (i. e., the overseer's assistants on each of the three daily 8-hour shifts) and by the second hands to the rank-and-file employees. In this general setting, the issues presented by the evidence in the present case are whether (1) the Respondent through its supervisors or other agents threat- ened, and questioned employees concerning their union membership and spied upon, and attempted to disrupt, union meetings; (2) Head Loom Fixer Tom McDaniels, who allegedly participated in these acts, was a supervisor or other agent for whose acts the Respondent is responsible; and (3) the Respondent discriminatorily discharged and refused reinstatement to union members Leon- ard Milam, George Thornton, and Lewis Jones, and Union President Ellis Gar- rett. Generally denying the commission of unfair labor practices in these respects, the Respondent also asserts, and has adduced testimony for the purpose of proving, that Milam was discharged for smoking in the plant; that Thornton, a weaver, was discharged for low production ; that Lewis Jones, a loom fixer, was discharged for continued failure and refusal to perform his work; and that Garrett, working as a loom overhauler, was discharged for incompetency. 8 Unless otherwise indicated , findings of fact are based upon uncontradicted evidence. OPELIKA TEXTILE MILLS, INC. 599 B. Interference , restraint, and coercion 1. The Respondent's alleged surveillance of, and attempts to disrupt , the union meetings Witnesses called on behalf of the General Counsel,' testified that, at the time of various union meetings, they had seen Overseer W. N. Scroggins , and Second Hands Lars Prescott and John Tilley walking, standing , or sitting in cars along the street on which the meeting hall was located . According to this testimony, Scroggins was with his wife ; none of the three supervisors were together ; nor, so far as the testimony indicates, did their appearance in the vicinity coincide. Of course, the mere presence of an employer's supervisors on a public town street is to be expected even at the times that union meetings are being held nearby, and is insufficient to establish surveillance . Furthermore, Scroggins, Tilley, and Prescott denied that they knew when the Union's meetings were to be held, or that they were ever in the vicinity of the meeting hall with knowledge of any such meeting, or with intent to spy upon the meeting or the attending employees. The undersigned credits their denials and accordingly rejects the General Coun- sel's contention that Overseer Scroggins or Second Hands Tilley and Prescott spied upon the Union's meetings. A more difficult question as to whether the Respondent kept the Union's meetings under surveillance and attempted to disrupt the meetings , is presented by uneontradicted testimony that Tom McDaniels , Head Loom Fixer on the third shift, which worked from 11 p. in. to 7 a . m., attended at least three union meet- ings, interrupted and argued with the speakers, refused to leave the last of these meetings until the police were called, and thereafter unsuccessfully sought ad- mittance or parked in a car outside the meeting hall and spoke to the men and to the Union's representatives as they left the meetings to Employee Ernest Wilson further testified that, at about 6 or 6: 30 a. m. on each of the mornings after a union meeting, and on no other mornings, McDaniels entered the office and spoke with Overseer Scroggins and that, although Wilson could not hear their conversations , on one of these occasions , McDaniels pointed at Wilson, who, as a union member had attended the meeting the previous night. McDaniels in his testimony, explained that his attendance and conduct at the Union's meetings were motivated solely by his personal opposition to unions generally and his desire to prevent the unionization of his fellow-employees. Furthermore, McDaniels and Scroggins denied in their testimony that McDaniels had been requested by the Respondent to attend the Union's meetings or to make reports concerning them, or that he had ever reported to Scroggins concerning Wilson's union membership or activities. They also testified that McDaniels' duties as head loom fixer for the third shift required him to enter Scroggins' office every morning at the end of his shift to return the paper forms used by him in his work, and that at these times the two men usually talked with each other, but that no mention of the Union was es er made except on one occasion when McDaniels volunteered the information (to which Scroggins made no reply or comment) that lie had been thrown out of the Union's meeting the night before by Garrett and Pemberton, the Union's organizer. Accepting as credible the testimony of McDaniels and Scroggins , the undersigned finds no basis for be- 9 I. v, employees J T. Peoples , Wesley Bearden, Ellis Garrett, E . Coursey, and Ernest Wilson, and also the Union 's organizer, Alfonza Pemberton. IU This e as the substance of the testimony not only of the witnesses called by the General Counsel but also of McDaniels as a witness for the Respondent. 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lieving that the Respondent through any of its representatives instigated M Daniels' attendance and conduct at the Union's meetings, The General Counsel contends, however, and the Respondent denies, that, as head loom fixer on his shift, McDaniels was a supervisory employee and that, therefore, notwithstanding lack of specific authorization or direction from the Respondent, the Respondent is responsible for his conduct. The facts relevant to the head loom fixer's duties, functions, and his place in the scheme of the Respondent's operations, though somewhat involved, aie not in serious dispute. The Respondent's weave room was in charge of Overseer Scroggins who had over-all responsibility for its operation throughout the three daily 8-hour shifts. Each weave room shift was in turn, in charge of a separate second hand as the overseer's assistant on that shift. Under the second hand on each shift, approxi- mately 11 weavers operated 666 looms, and 1 head loom firer and a crew of loom fixers (each loom fixer being assigned to a specified group of looms) serviced the looms as they were being operated. The duties of the loom fixers on each shift consisted of (1) the day-to-day routine repair and adjustment of the looms, normally without substantial interruption of their operation; (2) the installa- tion of new shuttles when required, including in such cases a general tightening and adjustment of the looms involved; and (3) a so-called weekly "loom in- spection" of the shuttles, swords, and picks on one-third of the looms, including the necessary repair and adjustment of these particular parts. With the loom fixing crew on each shift regularly inspecting and repairing the shuttles, swords, and picks on a different third of the looms, the "loom inspection" thus covered all the looms each week. It is clear that the head loom fixers had no authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline the loom fixers or to adjust their grievances." Whether, as the General Counsel contends, and the Respondent denies, the head loom fixers, including McDaniels, exercised lesser but substantial supervisory powers through the issuance of orders or the making of reports or recommendations affecting the loom fixers, must be judged upon the following substance of uncontradicted testimony fully describing the head loom fixers' functions and their relationship to the loom fixers. In connection with the routine repair and adjustment of the looms by the loom fixers, it was the head loom fixer's duty to inspect all the looms as they operated on his shift ; to indicate to the loom fixers on his shift which looms required attention by flagging those looms, I. e., by placing a marker (ordinarily an empty quill) on the loom; and to assist the loom fliers when requested by them or by the second hand. In his inspection and flagging of looms, the head loom fixer checked the shuttle feelers, filling feelers, and thread cutters on all the looms during his shift, paying particular attention to those looms which his own examination of the cloth bolts on the looms or the records of graders in the cloth room, indicated were making defective cloth known as seconds. In addition, he inspected looms on which new warps had just been placed. If the head loom fixer found something wrong on a loom, he flanged the loom without speaking to the loom fixer. If the loom fixer removed the flag without making the repair or adjustment, the head loom fixer neither spoke to him nor reported him, but merely re-flagged the loom. If the repair or adjustment were not made on the second flagging, the head loom fixer would again flag the loom, and report that fact to the second hand, still without speaking to the loom fixer. Although flagging was done principally by the head loom fixer, it was also done by the weavers (who 11 This finding is based upon the uncontradicted testimony of General Manager Floyd and Head Loom Fixer MeDaniels. OPELIKA TEXTILE MILLS, INC. 601 were clearly non-supervisory employees) as well as by the overseer and the second hand. When, as not uncommonly occurred, a loom fixer was unable to make all the routine repairs and adjustments flagged during his shift, they were made as a matter of course and without report or comment, by the corresponding loom fixer on the next shift. However, the special work required of every loom fixer in connection with the installation of new shuttles and his weekly "loom in- spections" was checked on the next shift and, if found wanting, was left un- corrected. Instead, a report known as a "write-up" was routed to his second hand who directed the loom fixer to perform the work on his regular shift the next day. The checks and "write-ups" after weekly "loom inspections" were made by the head loom fixer of the following shift, while those made after shuttle installations were made by the second hand of the following shift. In both cases, as has been noted, it was the second hand of the erring loom fixer and not his head loom fixer, who received the "write-up," determined what was to be done, and dealt directly with the loom fixer. From the foregoing, it appears, and the undersigned finds, (1) that the head loom fixers, including McDaniels, had no authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline the loom fixers or to adjust their grievances; (2) that the head loom fixers were machine in- spectors who occasionally assisted the loom fixers in the repair of looms but whose principal task was to indicate to the loom fixers which looms required the loom fixer's attention, by flagging the looms in question; (3) that the rank and file weavers as well as the head loom fixers flagged looms; (4) that, to a considerable extent, the head loom fixers in inspecting looms for possible flag- ging, relied upon the reports of graders in the cloth room; (5) that the only reports the head loom fixers made to the Respondent were those concerning a loom fixer's failure to make a routine repair on a second flagging or his failure to perform the work required on the weekly "loom inspections"; and (6) that, in making such reports and in flagging looms, the head loom fixers never made any recommendations as to the Respondent's treatment of the loom fixers but merely made and reported a routine, factual check of the Respondent's looms and their operation in accordance with narrow instructions which permitted no discretion and required no exercise of independent judgment on the head loom fixers' part. Upon these facts, the undersigned concludes that the head loom fixers, including McDaniels, were not supervisors.'' The undersigned furthermore concludes that the Respondent was not respon- sible for McDaniels' attendance and conduct at the Union's meetings since, as has been found, it did not instigate nor direct his conduct and also since Mc- Daniels was not a supervisory employee.13 2. Threats and interrogation Employee J. T. Peoples testified that in the middle of March 1947, he over- heard Second Hands Wood and Moore both say that if they "had the ones that belonged to the Union in their hands, it would be too bad for them." Both Wood and Moore denied having any such conversation. The undersigned credits their denials. 12 See the definition of the term "supervisor" in Section 2 (11) of the Act as amended. See also flatter of Arkwright Corp, 36 N. L. R B. 687, 690-691. 13 In view of the instant holding that McDaniels was not a supervisor, the undersigned finds it unnecessary to discuss evidence of other conduct on the part of McDaniels which the General Counsel contends were unfair labor practices chargeable to the Respondent. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employee James Jones, a member of the Union, testified that in the spring of 1947, when he sought to return to work after a number of months' absence, he overheard General Manager Floyd tell Second Hand Tilley, "We will shut the mill down before we will work the union help," and that Tilley, rejecting Jones' application for work the next day, said, "You was gone so long until 1 had to hire some more help-Well, I will just tell you, they won't let me work a un-," and then stopped abruptly. General Manager Floyd and Second Hand Tilley denied having the first of these conversations, and Tilley also denied the later remark attributed to him by Jones. The undersigned credits their denials." There was, however, credible uncontradicted testimony that Second Hands J. W. Harris and John Tilley each asked a different employee whether he had joined the Union. Standing alone, such isolated instances of interrogation might be regarded (as the Respondent urges) as being too trivial to warrant a finding of unfair labor practices. However, as will hereinafter appear, the undersigned is of the opinion that the Respondent also violated the Act by discriminatorily discharging and refusing reinstatement to Ellis Garrett. The undersigned there- fore finds that by Second Hand Harris' and Second Hand John Tilley's question- ing employees as to whether they were members of the Union, the Respondent interfered with, restrained and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The discharges 1. Leonard Milani Leonard Milam was employed by the Respondent in February 1942, as a weaver and a year later became a loom fixer. When Milam was first employed, the Re- spondent operated a single mill within a fenced enclosure. Thereafter, an ad- ditional mill was built adjacent to the old mill and within the same enclosure. Sometime before General Manager Floyd came to the mills, Milam was one of a crew of loom fixers and loom overhaulers engaged in transferring some of the looms from the old mill to the new mill. Although this work had not been completed, production had started in the new mill before Floyd became general manager on August 26, 1946. llilam joined the Union in August or September 1946. In the beginning of October 1946, his Second Hand, J. D. Wood, passed Milam's home one evening while Milam was sitting there in a car with Union Organizers Pemberton and Clark, and spoke to Clark who had once been employed by the Respondent About 2 weeks later, on October 22, 1946, Wood caught Milam smoking in the toilet of the new mill. Employee Donald Hurston, who was also smoking in the toilet at the time, covered his cigarette and was not caught. Upon Wood's recom- mendation, Overseer Seroggins discharged Milam for smoking. Scroggins testified that Milam admitted at the time of the discharge, that he knew smoking was against the rules. According to Milam's testimony, he told Scroggins that he did not know whether smoking was against the rules because General Manager Rice, Floyd's predecessor had permitted smoking during the installation of the looms in the new mill, restricting it to the toilet only after pi oduction began, and Milani had not heard that this relaxation of the "no smoking" rule had been revoked. 14 Testimony by other witnesses of the General Counsel as to conversations between second hands, which they claim to have overheard and which relates to the various alleged discriminatory discharges, are discussed later in this Report As will appear, this testi• niony was contradicted, and in the opinion of the undersigned is unreliable. OPELIKA TEXTILE MILLS, INC. 603 It will be recalled, however, that in September 1946, General Manager Floyd issued instructions to his overseers and second hands to stop smoking by the employees. Milam testified that Floyd's instructions or substance was never brought to his attention. Furthermore, Milam and Employee James Smith tes- tified that smoking in the toilet of the new mill was usual, and that, shortly before Milam's discharge they had smoked there in the presence of, and without objection from, Second Hand Wood. On the other hand, Wood, corroborated by several of the employees, testified that, after receiving Floyd's instructions, he had warned everyone of the employees on his shift that if they were caught smoking, they would be discharged, and that he had repeated this warning to groups of employees in the toilet (including Milam) when he had smelled smoke and found cigarette butts. Wood further denied that he had seen any employees smoking in the toilet before he caught Milam. The undersigned credits Wood's testimony and accordingly finds that Milam was discharged, not because of his union membership and activities (as the General Counsel and the Union assert), but because of his violation of the Re- spondent's rule against smoking in the mill, after notice had been given to him and the other employees of the rule and the Respondent's intention to enforce it by the discharge of violators. 2. George Pierce Thornton Hired in August 1946, George Pierce Thornton worked for the Respondent as a weaver for slightly more than 10 weeks. He joined the Union on October 18, 1946, and signed up members. So far as the record discloses, however, he played no prominent part in the Union's activities and his membership in, and connec- tion with the Union, could possibly have come to the Respondent's attention only because, according to his testimony, he stood outside of the plant talking with Union Organizer Mooney, one day after his shift in view of Overseer Scroggins and Second Hand Prescott, who were looking out the office window. On October 31, 1946, Second Hand Prescott discharged Thornton for failing to meet the Respondent's production requirements. According to the uncontradicted testimony, when General Manager Floyd was hired on August 26, 1946, the Respondent's weave room showed an average efficiency of 85 percent. As has been noted, Floyd gave orders to the overseers and second hands that production should be increased to an average of 90 per- cent. According to the testimony of Overseer Scroggins, the weavers were generally notified of this goal, and one of the weavers quit in the beginning of October 1946, because he felt that he could not meet this requirement. Ac- cording to the testimony of Second Hand Prescott, however, Prescott first warned Thornton of the necessity of increasing his production only 3 or 4 days before Thornton's discharge. The Respondent's efficiency records for its weavers on all shifts for the 9 weeks prior to Thornton's discharge-virtually the entire period of Thornton's employment by the Respondent-showed : (1) that in the first 3 of these weeks, during which Thornton was producing sheeting, Thornton's average was 86.7 percent, that only two of the other weavers on sheeting had a lower percentage, and that Thornton's weekly averages steadily decreased from 90 percent in the first week to 87 and 83 percent in the second and third weeks ; (2) that in the next 2 weeks, during which Thornton was producing duck on the third shift, his over-all average of 86.5 percent was the lowest of all the weavers on sheeting, the next higher being 87 5 percent; (3) that in the last 4 weeks, during which Thornton was again producing duck but on the second shift instead of the third shift, his average was again the lowest (being 1 percent less than the 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD next higher) and the only average of all the weavers on duck which was less than the desired 90 percent; and (4) that in the last week, Thornton's average was 87 percent with a low daily of 84.7 percent, as compared with the next higher weekly and daily average of the other weavers of 91.5 percent and 87.5 percent respectively.16 From the substance of these records and the comparison of Thornton's per- formance with that of his fellow weavers, in view of the undisputed drive made by the Respondent to attain an average of 90 percent, and also in view of the lack of prominence of Thornton in the Union's activities, the undersigned finds no basis for believing that Thornton was discharged because of his union mem- bership or activities (as the General Counsel and the Union contend) but con- cludes, on the contrary, that Thornton was discharged for his inability to meet the production standards required by the Respondent. 3. Lewis Jones Lewis Jones, with 11 years experience as a weaver and 15 as a loom fixer, worked for the Respondent as a loom fixer from February 1944, until October 1944, and again, as a loom fixer on the third shift, from February 1945, until his discharge on November 27, 1946. He joined the Union in August 1946. It is undisputed that in late October or early November 1946, he showed his union card to his Second Hand F. N. Moore, who had been promoted to second hand from a loom fixer's job on October 12, and who, unknown to Jones, was also a member of the Union.11 On November 27, 1946, after Second Hand Wood of the first shift, had issued seven consecutive, daily "write-ups" of Jones' shuttle- installation on the same loom, Second Hand Moore discharged Jones. Second Hand Moore testified that, shortly after he became second hand on October 12, Jones' looms were running "out of fix" after repeated "flags" had been removed ; that, when Moore pressed Weaver Hicks for increased production, Hicks complained about Jones' not fixing his looms ; " that Moore called Jones's attention to his poor work six or seven times but, instead of improving, Jones began asking Moore to fix some of the looms himself ; that after Moore would show Jones how to fix one loom, Jones would ask him to fix another ; that in the meantime Moore was trying to adjust himself to his new job as second hand; and that finally when Jones received three consecutive daily "write-ups" on one loom, four on another, and seven on a third loom for failure to tighten up and adjust these looms in connection with shuttle-installations, Moore discharged Jones. With reference to these "write-ups" and Jones's attitude, Supply Room Clerk Jimmie Albert Turner testified that, immediately before Jones's discharge, Jones showed him a "write-up" and said "he wasn't going to fix the loom" and threw the write-up into the trash can. According to Jones, the trouble on the 15 Without going into the details of the evidence , the undersigned should state that from his examination of the General Manager Floyd , who testified as to these percentage records, he is satisfied that the records basic to the conclusions as stated in the text were those which had for some time been kept by the Respondent for the purpose of checking their weavers' performance is Jones testified, and Moore in his testimony denied, that when Jones showed Moore his union card, he told Moore that Head Loom Fixer McDaniels had been unnecessarily flagging and reflagging his looms . In view of the finding ( already made ) that Head Loom Fixer McDaniels was not a supervisor and in the absence of any evidence in the record to indicate that any anti-onion conduct on the part of McDaniels was directed , instigated , known to, or approved by the Respondent , the undersigned finds it unnecessary to resolve this conflict in testimony nor to resolve contradictory testimony as to whether McDaniels forecast Jones' discharge and sought to cause Jones trouble in his work. 11 Hicks corroborated Moore on this point. OPELIKA TEXTILE MILLS, INC. 605 looms in question was primarily with the adjustment of the shuttle feeler. He testified, but both Moore and Second Hand Wood denied, that after Jones's failure to adjust the feeler to Moore's and Wood's satisfaction, Moore told him on the night before his discharge that Wood had made the adjustment and that Jones was not to disturb it. Although Jones further testified that Moore had never previously complained to him about his work, and Weavers Baker and Smith testified that Jones was a good loom fixer, the undersigned credits the testimony of Moore, Wood, and Turner, and finds that Jones was discharged by the Respondent not for his union membership or activities but for his failure to perform his work. 4. Ellis Garrett Ellis Garrett, the Union's President, was employed by the Respondent as a warp hand on the third shift from December 20, 1940 until December 12, 1946, when he was transferred by Overseer Scroggins to an overhauler's job in a crew which was cutting down on reassembling some of the Respondent's looms under Head Overhauler Jesse Jackson On January 13, 1947, he was discharged by Jackson and also refused reinstatement to a warp hand's job by Seroggins on the ground that no warp jobs were then available. A number of the facts relating to the Respondent's discharge and refusal to reinstate Garrett are not in dispute. Thus, the undersigned finds (1) in ac- cordance with the Respondent's admission at the hearing and in its Brief, that Garrett was a good warp hand; (2) in accordance with Garrett's admission on the witness stand, that he was unable to perform the work of an overhauler : and (3) upon the uncontradieted testimony of Scroggins, that, when Garrett applied for reinstatement to his warp job on the day of his discharge and also several weeks later, there was in fact no vacancy 18 As a result, the factual issues and the positions of the parties have been considerably narrowed. The General Counsel contends, and the Respondent denies, that Scroggins knew of Garrett's prominence in union activities, and for that reason, trans- ferred Garrett from his warp job at 92 cents per hour to the overhauler' s job at $1.08 per hour, knowing that Garrett was unfitted for the latter job and expect- ing and intending to use his incompetence at the new job as a pretext for dis- charging him and refusing him reinstatement to a warp job. In support of the various elements of this contention, the General Counsel adduced the testimony of Garrett and employee Payne. Payne testified that, shortly before the end of the first shift one day before Christmas 1946, he overheard Second Hand Wood of the first shift say to an unidentified employee that if Garrett were on the first shift, he (Wood) could discharge him. Garrett testified (1) that, shortly before be became an overhauler, he overheard Second Hand Wood make substantially the same statement to Employee Dennis during the change from the third to the first shift one morning, and a few mornings later, to Overseer Scroggins; and (2) that Overseer Scroggins shortly thereafter suggested and effected Garrett's transfer to the overhaulers' gang. The Respondent's witnesses squarely contradicted Garrett on these points. Wood denied having made, and Dennis and Scroggins denied having heard, any such statement. Finally, Scroggins , corroborated by Second Hand Moore, denied that Scroggins had initiated Garrett's transfer to the overhaul job and testified 18 "Red" Woodall, another warp hand was made an overhauler's helper on the same day that Garrett was made an overhauler When the overhauling job was completed some time atter Garrett was discharged, Woodall again became a warp hand When this occurred, is not clearly fixed by the record and is therefore no refutation of Scroggins' testimony that no warp job was available when Garrett applied for reinstatement. 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that, on the contrary, Garrett applied for, and insisted upon his transfer, stat- ing that he was capable of doing the work of an overhauler, in spite of Scroggins' expressed doubt and his warning that if Garrett were unsuccessful as an over- hauler, there might then be no vacancy as a warp hand to which Garrett could return. My impression after considering the conflicting testimony of Garrett and Scroggins on these points is that the testimony of neither is reliable. First, as to Garrett : Although he testified on direct examination only as to Wood's alleged statement to Scroggins, he added his testimony as to the identical statement made by Wood to Dennis during his cross-examination, and, in apparent con- fusion at one point, first withdrew and then restated his testimony as to Wood's statement to Scroggins. Finally, although Garrett testified that he had not seen Dennis for 2 or 3 years, Dennis who had left the Respondent's employ and moved to Dadeville, Alabama, later testified (and Garrett was not recalled to the witness stand for specific contradiction), that Garrett had met him in Dadeville a week before the hearing and had asked Dennis if he would testify for Garrett in the present case as to the reason for Garrett's discharge, but Dennis had said he knew nothing of the matter. Upon this state of the record, the undersigned does not regard the testimony of Garrett and Payne as to Wood's alleged threefold repetition of substantially the same remark concerning Garrett as being reliable, and therefore credits Wood's, Scroggins', and Dennis' denials. Scroggins' testimony, too, is unacceptable on at least two points : i. e, his denial of any knowledge of Garrett's prominence in the Union and his acceptance in good faith of Garrett's insistence that he was qualified to perform the work of an overhauler. There was no secret made of the Union's organization of the mill, nor so far as it appears from the record, of the identity of the leaders and officers. Furthermore, as has already been noted, Head Loom Fixer McDaniels told Overseer Scroggins that he had been ejected by Garrett and Union Organizer Pemberton from a union meeting. With respect to Scroggins' willingness to credit Garrett's claim that he was able to perform the work of an overhauler, it appears clear from the record that the overhauler's job was even more difficult and specialized than a loom fixer's job, that Garrett had always been a warp hand even when employed at other mills, as Scroggins could have ascertained from his employment card, and that Red Woodall, another warp hand was trans- ferred at the same time as Garrett but only to the job of helper to the overhaulers. Upon these considerations, the undersigned, contrary to Scroggins' testimony, finds that at the time Scroggins transferred Garrett to the overhauler's job, be knew that Garrett was a leader of the Union among the employees and further- more, that he had no reason for believing that Garrett would be able to do the work of an overhauler but on the contrary had clear reason for believing that he would be incompetent. We come now to the question of whether Overseer Scroggins initiated Gar- rett's transfer to the overhauling job, as Garrett testified, or whether, as Scrog- gins testified, it was Garrett who applied for the transfer and assured Scroggins of his ability as an overhauler, with the result that Scroggins agreed to the trans- fer, warning Garrett however, that if he failed as an overhauler, there might be no vacancy for him as a warp hand In view of Second Hand 11loore's corroboration of Scroggins' version, the undersigned credits Scroggins on this point. In the opinion of the undersigned, however, it makes no difference that Garrett thus sought the transfer, rather than that he had it thrust upon him by Scroggins. For, it appears to the undersigned that, instead of making the opportunity for discharging Garrett, Scroggins merely embraced it when presented by Garrett. OPELIKA TEXTILE MILLS, INC. 607 The significant facts (based to a considerable extent upon uncontradicted testi- mony and also the testimony of the Respondent's witnesses ), are that Scroggins, knowing of Garrett's prominence in the Union 's activities among the employees, not only agreed to transfer Garrett, a good warp hand, to an overhauler's job, with good reason to believe, in spite of Garrett's assurance to the contrary, that Garrett could not perform the duties of the new job, but also indicated clearly, by his express warning to Garrett, that he had in his mind the possibility of Garrett's eventually losing his employment with the Respondent as a result of the transfer. Aside from Scroggins' knowledge that Garrett was a union leader, there is no plausible explanation in the facts as to why Scroggins willingly em- braced the possible loss to the Respondent of a good warp hand such as Garrett. No similar warning was given to Woodall who was transferred to the overhauling gang at the same time and, it is therefore to be assumed that it did not occur to Scroggins in Woodall's case as it did in Garrett's case. Nor, as would seem natural in view of Scroggins' expression of doubt That Garrett was competent to become an overbauler, did Scroggins suggest that Garrett , like Woodall, either take a helper's job or anticipate his demotion to a helper 's job if he should fail as an overhauler. Upon these considerations, the undersigned concludes that, because of Gar- rett's known union membership and leadership, Overseer Scroggins, acting for the Respondent, agreed to Garrett's transfer to an overhauler's job, expecting and intending to use Garrett's incompetency at the new job as a pretext for discharging him and refusing him reinstatement to his warp job. That a warp job was not vacant when Garrett was discharged on January 13, 1947 or at later times when he applied for a warp job, is immaterial. The undersigned therefore finds that, in violation of Section 8 (1) and (3) of the Act, as reenacted in Section 8 (a) (1) and (3) of the amended Act, the Respondent by discharging Garrett and refusing him employment as a warp hand on January 13, 1947, discriminated with respect to his hire and tenure of employment , thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 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 obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the Respondent has engaged in unfair labor prac- tices within the meaning of Section 8 (1) and (3) of the Act as reenacted in Section 8 (a) (1) and (3) of the amended Act, the undersigned will recommend that it cease and desist from and take certain affirmative action in order to effect the policies of the Act and the amended Act. The undersigned has found that the Respondent discriminated against Ellis Garrett in regard to his hire and tenure of employment, thereby discouraging membership in the Union, a labor organization, by discharging Garrett and refusing him reinstatement to a warp job on or about January 13, 1947. It will be recommended that the Respondent offer Ellis Garrett immediate and full 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reinstatement to his former job as a warp hand or a substantially equivalent position,19 without prejudice to his seniority or other rights and privileges ; and that the Respondent also make the said Ellis Garrett whole for any loss of earnings suffered by him by reason of the Respondent's discrimination against him, by payment to him of a sum of money equal to that which he would normally have earned as wages as a warp hand from the date of the discrimination against him, January 13, 1947, to the date of the offer of reinstatement, less his net earnings during that period.20 It will also be recommended that the complaint, so far as it alleges discrimina- tion by the Respondent against Dorothy Huckaby, Leonard Milam, George Pierce Thornton, and Lewis Jones, be dismissed. Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. Textile Workers Workers Union of America, C. I. 0., is a labor organization within the meaning of Section 2 (5) of the Act and of the amended Act. 2. By discriminating in regard to the hire and tenure of employment of Ellis Garrett, and thereby discouraging membership in Textile Workers Union of America, C. I. 0., the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act, as reenacted in Section 8 (a) (3) of the amended Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act and the amended Act, the Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act, as reenacted in Section 8 (a) (1) of the amended Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act, as reenacted in Section 2 (6) and (7) of the amended Act. 5. The Respondent has not discriminated against Dorothy Huckaby, Leonard Milam, George Pierce Thornton, and Lewis Jones, as alleged in the complaint. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed hereby recommends that the Respondent, Opelika Textile Mills, Inc., of Opelika, Alabama, 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 discriminatorily dis- charging employees or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the right to self-organization to form labor organiza- tions, to join or assist Textile Workers Union of America, C. I. 0., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective 19 See Matter of the Chase National Bank of the City of New York, San Juan, Puerto Rico, Bvanch, 65 N. L R. B 837. 20 Matter of Crossett Lumber Co., 8 N. L. R. B. 440, 497-498. OPELIKA TEXTILE MILLS, INC. 609 bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act and of the amended Act. 2. Take the following affirmative action, which the undersigned finds will effectuate the policies of the Act : (a) Offer to Ellis Garrett immediate and full reinstatement to his former position as a warp hand or to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of the discrimination of the Respondent against him by payment to him of a sum of money equal to that which he normally would have earned as wages as a warp hand from the date of the Respondent's discrimination against him to the date of the offer of re- instatement, less his net earnings during the period ; (b) Post at its plant in Opelika, Alabama, copies of the notice attached hereto and marked "Appendix A." Copies of said notice, to be furnished by the Re- gional Director of the Tenth Region shall, after being duly signed by the Re- spondent, be posted by it immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, de- faced, or covered by any other material ; (c) Notify the Regional Director for the Tenth Region in writing within ten (10) days from the date of the receipt of this Intermediate Report, what steps the Respondent has taken to comply with the foregoing recommendations. It is further recommended that, unless the Respondent shall, within ten (10 days from the receipt of this Intermediate Report, notify the Regional Director for the Tenth Region in writing that it will comply with the foregoing recom- mendatons, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. It is also recommended that the complaint, so far as it alleges that the Re- spondent discriminated in regard to the hire and tenure of employment of Dorothy Huckaby, Leonard Milam, George Pierce Thornton, and Lewis Jones, be dismissed. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended August 18, 1948, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Intermediate Report and Recommended Order or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and six copies of a brief in support thereof; and any party may, within the same perod, file an original and six copies of a brief in support of the Intermediate Report and Recommended Order. Immediately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Statements of ex- ceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and if mimeographed shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203 85. As further provided in said Section 203.46, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, con- clusions, and order , and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 13th day of October 1948. WILLIAM F. SCHARNIKOW, Trial Examiner. APPENDIX A NOTICE TO ALL EMPLOYEES Pursant 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. O. 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 colective bargaining or other mutual aid or protection. WE WILL OFFER to the employees named below immediate and full rein- statement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of thel discrimination. Ellis Garrett 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. OPELIKA TEXTILE MILLS, INC., Employer. Dated---------------------------- I'y --- (Representative) (Title) NorE.-Any of the above-named employees presently serving in the Armed Forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.