Morristown Knitting Mills, Inc.

In the Matter of MORRISTOWN KNITTING MILLS, INCORPORATED and TExTII s WORKERS UNION OF AMERICA, CIO Case No. 10-CA-191.-Decided October 4, 1949 DECISION AND ORDER On April 5, 1949, Trial Examiner Sidney L. Feiler 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 Interme- diate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended that the complaint be dismissed with re- spect to such allegations. Thereafter, the General Counsel filed ex- ceptions to the Intermediate Report and a supporting brief. The Re- spondent filed a brief in reply. The Board 1 has reviewed the rulings made by the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the modifications and additions 2 set forth below : The Trial Examiner found that the interrogation by Supervisors Dalton and Watkins of employees as to what was decided at the union meeting and as to the location of the union meeting hall was not viola- tive of the Act. We do not agree. As we have often stated, we believe that such inquiries by management representatives concerning union r Pursuant to the provisions of Section 3 (b) of the Act, as amended, the National Labor Relations Board has delegated its powers in connection with this proceeding to a three- member panel [Chairman Herzog and Members Reynolds and Gray]. 2 The Intermediate Report contains two minor inaccuracies, neither of which affects our ultimate findings. Wolfe did not testify that he asked to be relieved of the third shift because his wife was pregnant, but only because it necessitated leaving his family alone. During the period between January 6 and 26, 1948, employees who had testified in the earlier Board proceeding (Case No. 10-CA-79) worked not fewer, but three more third shifts than nonparticipants in that proceeding. The Intermediate Report is hereby cor- rected accordingly. 86 N. L. R. B., No. 46. . 342 MORRISTOWN KNITTING MILLS, INCORPORATED 343 activities tend to restrain and coerce employees in their exercise of the rights guaranteed in Section 7 of the Act. Accordingly, we find that by such interrogation the Respondent violated Section 8 (a) (1) thereof.3 THE REMEDY The Trial Examiner recommended that the Respondent be ordered to cease and desist from engaging in illegal.surveillance or any related prohibited conduct. In view of the further unfair labor practices found herein, and after considering, as did the Trial Examiner, the Respondent's past violations of the prohibitions of the Act, as fully set forth in our Decision and Order dated November 23, 1948,4 we are convinced and find that the Respondent's illegal activities reveal an underlying purpose to defeat self-organization among its employees and a fixed attitude of opposition to the purposes of the Act. Under these circumstances, we are satisfied that its past illegal conduct is persuasively related to other unfair labor practices proscribed and that danger of their commission in the future is to be anticipated from the Respondent's conduct in the past.5 The preventive purposes of the Act will be thwarted unless our order is coextensive with the threat. Accordingly, in order to make effective the interdependent guarantees of Section 7 and thus effectuate the policies of the Act, we have ordered the Respondent to cease and desist from in any manner infringing upon the rights of employees guaranteed by 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, Morristown Knit- ting Mills, Incorporated, Morristown, Tennessee, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Engaging in surveillance of its employees in their union activities; (b) Interrogating its employees concerning their union or union activities; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Textile Workers Union of 3 See, e. g., Matter of Standard-Coosa-Thatcher Company, 85 N. L. R. B. 135S. 4 Matter of Morristown Knitting Mills, 80 N. L. R. B. 731. s N. L. R. B. v. Empress Publishing Company, 312 U. S. 426. 6 Matter of Shields Engineering i Mfg. Co., 85 N. L. R. B. 168 ; Matter of Tomlinson of High Point, Inc., 74 N. L. R. B. 681. 344 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD 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, and to refrain from any and all such activi- ties, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a;) -Post at its plant at Morristown, Tennessee, copies of the notice annexed hereto marked "Appendix A." 7 Copies of said notice, to be furnislred by-the Regional Director for the Tenth Region, shall, after being duly signed by a representative of the Respondent, be posted by said Respondent immediately upon receipt thereof and maintained by it for a period of sixty (60) consecutive days there- after, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material; (b) Notify the Regional Director for the Tenth Region in writing, within ten (T0) days from the date of this Order, what steps the Respondenthas taken to,comply herewith. IT IS FURTHER ORDERED that in all other respects the complaint herein be, and it hereby is, 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 Relations Act, we hereby notify our employees that : WE WILL NOT engage in surveillance of our employees in their union activities. WE WILL NOT interrogate our employees concerning their union or union activities. WE WILL NOT in any manner interfere with, restrain, OT coerce Qur,. employees in the exercise of their 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 choos- 7 In the event that this Order is enforced by a decree of the United States Court of Appeals, there shall be inserted in the notice before the words : "A DECISION AND ORDER," the words : "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." 1\MORRISTOWN KNITTING MILLS, INCORPORATED 345 ing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. MORRISTOWN KNITTING MILLS, INCORPORATED, Employer. By -------------------------------------------------- (Representative ) ( Title) Dated-------------------- 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 Messrs. Frank E. Hamilton, Jr., and William M. Pate, for the General Counsel. Messrs. William E. Badgett, of Knoxville, Tenn., and C. Frank Davis, of Mor- ristown, Tenn., for the Respondent. Mr. E. John Weal, of Nashville, Tenn., for the Union. STATEMENT OF THE CASE Upon a first amended charge filed by Textile Workers Union of America, CIO, hereinafter referred to as 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 August 11, 1948, against Morristown Knitting Mills, Incorporated, Morristown, Tennessee, herein called the Respondent,2 al- leging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section .8 .(a) (1), (3), and (4) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. With respect to unfair labor practices, the complaint. alleges in substance that the Respondent; (1) transferred and assigned four employees, Edwin Eugene Wolfe, Ruth Rodgers, Sarah Drenin Collins, and Mary Self, to a less desirable work shift and later constructively discharged one of those employees, Ruth Rodgers, and discharged another, Edwin Wolfe, because of their union mem- bership and activities and because they appeared as Witnesses in a Board pro- ceeding; and (2) by the activities of certain named supervisory employees and its attorney questioned employees about their union desires, sympathies, and activities ; urged, threatened, and warned its employees to refrain from joining or assisting the Union ; and kept under surveillance and interfered with union meetings and activities. 'The General Counsel and the attorneys representing him at the hearing are referred to as the General Counsel . The National Labor Relations Board is referred to as the Board. 2 The Respondent was originally designated in the complaint as "Morristown Knitting Mill." At the hearing, the undersigned granted a motion made by the General Counsel to change the name of the Respondent on all papers in this case to "Morristown Knitting Mills, Incorporated" which, the parties stipulated, was the correct name of the Respondent. 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent, in its answer, dated September 9, 1948; (1) admits certain jurisdictional allegations; (2) alleges that any transfer of the employees named in the complaint to another shift was routine and necessitated by the demands of business; (3) avers that Rodgers voluntarily quit her employment; (4) admits that Wolfe was discharged, but maintains that he was discharged for cause; and (5) denies that it has committed any unfair labor practices. Pursuant to notice, a hearing was held at Morristown, Tennessee, from November 3 to November 11, 1948, before the undersigned, Sidney L. Feiler, the Trial Examiner designated by the Chief Trial Examiner. The General Counsel and the Respondent were represented by counsel ; the Union, by a rep- resentative. Full opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence bearing on the issues was afforded all parties. At the outset of the hearing, the undersigned denied motions made by the Respondent to dismiss the complaint for failure to allege that the Union was in compliance with Section 9 (f), (g), and (h) of the Act and to dismiss the com- plaint for misjoinder of issues or to require an election by the General Counsel. A petition to revoke a subpoena daces tewon served by the General Counsel on the Respondent was denied. Respondent's motion to exclude witnesses was granted with certain exceptions, At the request of the Respondent, the General Counsel agreed to other exceptions in Respondent's favor. At the end of the General Counsel's case-in-chief, the Respondent moved to dismiss the complaint for failure of proof. The motion was denied. Decision was reserved when, at the conclusion of the taking of testimony, the motion was renewed. This motion is disposed of by the findings, conclusions, and recommendations herein. A motion by the General Counsel to conform the pleadings to the proof was granted, without objection, as to all pleadings. Oral argument was then presented by the General Counsel and the Respondent. A brief was later submitted on behalf of the Despondent containing proposed findings of fact and conclusions of law. Upon the entire record, and from his observation of the witnesses, the under- signed makes the following. FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Morristown Knitting Mills, Incorporated, is a Tennessee corporation having its principal office and place of business at Morristown, Tennessee, where it is engaged in the manufacture, sale, and distribution of men's, women's, and chil- dren's socks, hose, and related products. In the production of its finished products, the Respondent annually uses raw materials consisting of yarns and dyestuffs valued in excess of $50,000, of which approximately 50 percent is shipped to the Morristown plant from points outside the State of Tennessee. The finished products manufactured by the Respondent are valued in excess of $100,000 of which more than 80 percent is shipped from the Morristown plant to points outside the State of Tennessee. The Respondent concedes that it is en- gaged in interstate commerce and subject to the provisions of the Act and the undersigned so finds. II. THE ORGANIZATION INVOLVED Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of the Respondent. MORRISTOWN KNITTING MILLS, INCORPORATED III. THE UNFAIR LABOR PRACTICES A. Acts of interference, restraint, and coercion 347 1. Attendance of Management representatives at the union meeting of February 3, 1948 The Union began a campaign to organize employees of the Respondent in the fall of 1947. The first meeting, of which general announcement was made to all employees, was held on February 3, 1948. Circulars were distributed to employees in front of the plant which contained the following announcement : To the Employees of Morristown Knitting Mills: For the second time in less than a month the Morristown Knitting Mills is being investigated for alleged violations of the law. On January 6th and 7th, 1948, the National Labor Relations Board held a hearing on. charges filed against your company alleging violation of the National Labor Relations Act. The Government attorney representing the Board minced no words in expressing his opinion on the validity of the Charge in the case of Mrs. Beulah May Mayes, and we are happy to say we believe Mrs. Mayes will win reinstatement to her job and full pay for all time lost. In addition, you will be glad to know that a Representative of the Wage and Hour Division, U. S. Department of Labor, is now investigating further alleged violations of the Wage & Hour law. We fully expect that this inves- tigation will lead to payment of unpaid back pay to many of you who work at Morristown Knitting Mills. The CIO is holding a meeting tonight-February 3, 1948-at 6: 00 P. M. for Morristown Knitting Mills employees. This meeting is held for the purpose of assisting and advising those of you who have back pay coming. You Are All Invited : Tonight at .6: 00 o'clock, 540 Center Street, Morris- town, Tenn. Place: (Corner of Center and Central) Formerly known as the "Trading Post." Four company officials went to the meeting : R. L. Raburn , chairman of the board of directors , G. Wayne Smith, president and general manager, G. Marcus Jones, vice president and treasurer , and R. P. Bible, general superintendent. The meeting which had opened before these officials arrived, was being led by Edwin R. Gershak , a union official . Gershak noticed someone peering through a window. He went outside and met Raburn and the other company officials. He told Raburn that he was violating the law and that he should leave the place of the meeting. Raburn made no reply to Gershak , but in a few minutes Raburn and the other officials entered the meeting room and sat down. Gershak again told them that a union meeting was in progress and that they were violating the law by being there . When no move was made to leave, Gershak requested E. John Neal , another union representative , to summon the police . When the police arrived , they were asked to remove Raburn and his associates . Raburn refused to leave asserting that he was an employee of the Respondent and that all employees had been invited . Neal told him he had no right to attend a union meeting. Neal read part of the Act and Raburn and the other officials left the meeting. Lynn Anne Lane also attended the meeting. She regularly was employed as a secretary by C. Frank Davis, of counsel to the Respondent . Also, at the 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD date of the meeting, she was employed by the Respondent'to assist in the prepara- tion of tax returns. She attended the meeting at the request of Davis who asked her to see whether any employees had any complaints as to back pay. Lane testified that she attended the meeting and later she told Davis that she had done so. She recalled that Davis asked whether there were any complaints as to back pay, but she could not recall what, if any, reply she made, or whether she had any further conversation with Davis. Davis did not testify as to this incident. Smith and Bible testified that company officials saw copies of the Union's circular on the day it was distributed and that they discussed the alleged violations of the Wage-Hour Law among themselves and with company time- keepers. The four officials, according to testimony, went to the meeting to see what, if any, complaints there were as to back pay and not for the purpose of interference and surveillance. The Respondent also contends that the meeting was not announced as a union meeting, that the stated purpose of the meeting was to assist and advise those who were owed back pay, and that the company officials, being employees, were included in the invitation and had a right to attend the meeting. The undersigned finds that none of the above contentions is valid. The meet- ing was announced as a CIO meeting. The fact that the announced purpose of the meeting was to consider an alleged grievance concerning back pay does not detract from the fact that the meeting was a form of concerted activity by employees protected by the Act. It may be conceded that the four officials who attended the meeting were employees of the Respondent, although there might be some question as to Ra- burn who, at that time, was not an operating official. It is apparent that the circular extended an invitation to all employees. However, such an announce- ment cannot be properly construed in vacuo, but must be considered in the light of the situation existing at the time and the realities of an organizational cam- paign by a union. The Union was not attempting to organize the top super- visory officials of the Respondent. Under ordinary circumstances, the presence of supervisory officials is not conducive to a full and free discussion at union meetings. To hold that top supervisory officials of a company are included in a general invitation to employees would be highly unrealistic. Also, in the instant case, whatever question Raburn and his associates may have had as to whether they were invited was answered by Gersbak before they entered the meeting. They persisted in staying despite several requests to leave. They finally did leave, but their conduct had a disrupting effect on the meeting in addition to the deterrent effect their presence would have on the free expression of views by employees under their supervision and whose presence at a union. meeting was not known to management. Lane's attendance at the meeting on behalf of the Respondent constituted a form of surveillance prohibited by the Act. The undersigned concludes that by the presence and conduct of the supervisory em- ployees and by the activities of Lane at the February 3 meeting, the Respondent violated the Act 3 The testimony of Smith and Bible that their purpose in coming to the meeting was not to engage in surveillance or interference does not detract from the effect of their conduct. The rule applicable is that: "The test is whether the em- ployer engaged in conduct which, it may reasonably be said, tends to interfere 3 Matter of Kentucky Tennessee Clay Company, 49 N. L. R. B. 252; Matter of Conti- nental Pipe Line Company, 67 N. L. R. B. 389. MORRISTOWN KNITTING MILLS, INCORPORATED 349 with the free exercise of employee rights under the Act."' The motives under- lying such conduct are, for the purposes of that test, immaterial.' 2. Alleged acts of interference, restraint, and coercion Former employee Eugent Wolfe testified that during the night shift on February 8, 1.948, he was watched for a long period of time by someone in another building. Ile was unable to identify the person or give any further particulars about the incident. Both Smith and Bible denied that they ordered that he be watched or that they had any knowledge of who might have done that. Under these cir- cumstances the undersigned concludes that there has been a failure of proof that Wolfe was kept under surveillance by the Respondent. Wolfe further testified that he attended a union meeting on February 3, 1948, and that after that meeting he went to work on the third shift. There he was engaged in conversation by his supervisor, James Dalton who told him that he had heard about company officials attending that meeting. In the course of the discussion Dalton asked Wolfe what was decided upon at the union meeting. Wolfe could not recall whether he made any reply to Dalton. Dalton testified at this hearing but did not refer to this alleged conversation. At the time of the hearing Dalton had been discharged from the Respondent's employ. The under- signed has carefully considered Wolfe's testimony and credits it, but concludes that Dalton's inquiry, in the course of his conversation with Wolfe and under the circumstances was not violative of the Act. Wolfe testified that in March he had a conversation with Supervisor Coy Trent in which Trent, after asking him about the progress of the Mayes case, (referred to in the circular previously set forth) told him that union men were no good and that there were too many Communists in unions. Trent denied making these statements. However, the undersigned concludes that these state- ments, even if made, did not exceed permissible free speech limits permitted under the Act. Several days after the union meeting of February 3, 1948, Foreman W. C. Watkins summoned employee Oneida Mayes to his desk and asked her where the union meeting hall was. Mayes gave him the location of the hall. Watkins testified that he was motivated in making his inquiry of Mayes by the fact that he had heard talk of some union meeting and someone had told him that it was to take place in that part of town in which Mayes resided. Watkins testified that he was merely curious to find out the location of the union meeting hall. The evidence does not show that Watkins made any further inquiries of Mayes in his conversation with her. The undersigned finds that under the circumstances here- in, Watkins' questioning of Mayes was not violative of the Act. Employee Mildred Alexander testified that the day before a union meeting scheduled for April 6, 1948, Watkins came to her place of work and asked her if she was going to attend the union meeting to be held the next day. Alexander made no reply. Watkins then said, according to Alexander, "Well, they are having a meeting, aren't they?" Alexander replied that she did not know. Wat- kins categorically denied Alexander's testimony. Alexander was asked whether or not, in an interview with counsel for the Respondent a week before her testi- mony in this proceeding, she had made the statement that she had never received any threats concerning her union activities and that no inquiries had ever been "N. L. R. B. V. Illinois Tool Works, 153 F. 2d 811, 814. Republic Aviation Corp. v. N. L. R. B., 324 U. S. 793 ; Home Beneficial Life Insurance Co., Inc. v. N. L. R. B., 159 F. 2d 280 certiorari denied 322 U. S. 758. 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made of her concerning the Union. Alexander denied making such a statement and maintained she had only been asked if someone had questioned her as to whether she had joined the Union. Her testimony on this point was contradicted by C. Frank Davis of counsel to the Respondent.. Alexander was further ques- tioned' as to statements she made to Davis during the course of his investigation of Wolfe's discharge. Her testimony differed substantially from an unsigned affidavit produced by the Respondent which Alexander testified was a true recital of information she had furnished Davis at the time of her interview. The undersigned credits Davis' testimony, and from his appraisal of the testimony of the witnesses, credits Watkins' denial that he ever inquired of Alexander whether the Union was having a meeting. B. The alleged discrimination in assignnnents 1. Nature of the Respondent's operations ; The Boarding Department The first step in the Respondent's production process is the knitting of socks and anklets. They then are dyed in the dyeing room. Aboveothe dyeing room, there is a room commonly referred to as the boarding room which is occupied by the Boarding Department. The boarding room is 671/ feet long and approxi- mately 40 feet wide. A large table divides the room lengthwise and there is one desk, used by supervisory employees, at one end of the table. On either side of the table are rows of "boards" or metal feet. These boards are fixed to the floor and are heated by steam. Each worker, or "boarder," works on a set of 24 boards set in 2 rows, 21/ feet wide and 12 feet 4 inches long arranged in the shape of a "U" with the open end of the "U" facing the center of the boarding room. The distance between sets of boards is 6 to 8 inches. Boarders take dyed socks which are in a damp condition and pull them over boards on which the socks are shaped and pressed. This process is referred to as "boarding." All of the Respondent's 534 boards, except 36, are of a fixed foot size. Also 154 boards can be adjusted to men's socks made of rayon (referred to at the plant as "silk" socks) or a cotton sock called a "crew" sock. Other types of socks are boarded on the remaining boards. After the socks leave the boarding room they are paired, stenciled, folded, and shipped. The four individuals alleged to have been discriminated against by the Respondent were all boarders. At the beginning of 1948, the Boarding Department was under the supervision of General Superintendent Bible. In mid-February, W. C. Watkins was ap- pointed foreman of the Dye House and the Boarding Department and was given control over those departments under Bible's direction. Arlie Clevenger and James Dalton were the shift supervisors in the Boarding Department until mid- February when Dalton left the Respondent and was succeeded by Coy Trent. 2. The prior' Board proceeding On January 6 and 7, 1948, a hearing was held before a Trial Examiner on a complaint charging the Respondent herein with certain violations of the Act. The Trial Examiner in his report found that the Respondent had violated the Act by: (1) discharging Mrs. Beulah May Mayes for engaging in protected concerted activities; and (2) by certain statements made to employees and the questioning of them by two supervisors, Arlie Clevenger and Roy McKinney. The findings, conclusions, and recommendations of the Trial Examiner were adopted by the Board in its Decision and Order.' 6 80 N. L. R. B. 731. MORRISTOWN KNITTING MILLS, INCORPORATED 351 Beulah May Mayes, at the time of her discharge on August 27, 1947, was employed in the Boarding Department. Employees from that department were used as witnesses by the General Counsel and the Respondent. Among those who gave testimony supporting the General Counsel's contention were Eugene Wolfe, Ruth Rodgers, Sarah Drenin Collins, and Mary Self, the for individuals alleged in the complaint in this case to have been discriminated against by the Respondent. Seven other boarders were called by the General Counsel and three by the Respondent. Wolfe was perhaps the chief witness for the General Counsel testifying as to many important aspects of the case and indicating that he took an important part in preparing and circulating a petition for a wage increase. Mayes was found to have been discharged for engaging in that activity. Collins and Rodgers also were important witnesses. Mary Self testi- fied as to certain remarks and questions by Clevenger which were found to be violative of the Act. 3. The alleged discrimination in assignments The establishment of a third shift in 1948 Employees in the Boarding Department regularly worked on one of two shifts. The first shift hours were from 6 a. in. until 2: 30 p. in. The second shift began at 2: 30 p. m. and ended at 11 p. in. Occasionally employees were asked to work a third shift from 11 p. m. until 6 a. in. The primary cause for third shifts, according to the Respondent, was the fact that there were only a limited number of boards available for each size and type of sock. If there was a heavy concentration of orders in certain sizes a third shift might be instituted. Otherwise an entire. order might be delayed in shipment while a small part of it was being processed in the boarding room. A third shift might also be instituted when work in the boarding room generally fell behind as it might in the rush seasons prior to Christmas and Easter. According to the uncontradicted testimony of Respondent's witnesses, the boarding room had to keep up with the production of the Dye House. Unless the damp, dyed socks were promptly boarded, they might either mildew and require reprocessing or dry out and make it necessary for them to be rewetted before further processing. Although premium pay was given for third shift work, there was general agreement in the testimony that almost all the boarders disliked such assign- ments and sought to avoid them. Smith testified that the Respondent generally preferred to institute Saturday work at overtime pay, when necessary, rather than to resort to a third shift. In 1947, a total of 36 individual third shifts were worked by different employees. Wolfe had the highest number of those assignments-8. The Repondent maintained that it resorted to the use of third shifts in 1948 because of the necessities of business and for no other cause. Smith testified that he ordered third shifts on 2 occasions. The first time, Smith testified, was shortly before the beginning of 1948 when he discussed with Bible the need for a third shift to process an order for 5,000 dozen pairs of a type of cotton sock called a "komet" sock. These socks could only be boarded on one set of boards and Smith felt that a third shift was necessary to meet the promised delivery date on this order. Smith further testified that shortly after the 1st of January 1948, he noticed that socks were accumulating in the boarding room and thus delaying the shipment of orders. He then ordered Bible to start a third shift to clean up this backlog. Smith gave detailed testimony as to the status of 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD undelivered orders and cancellations in 1948. Company records, he maintained, showed that at the beginning of the year there was a balance of 264,185 dozens undelivered. It dropped below the 200,000 mark in the week ending March 13 and below the 100,000 mark on May 15. Smith further testified that cancellations of orders, presumably caused by delayed delivery, became heavy in March when he started keeping such a record and continued for some time. Company records show substantial cancellations until June. In addition, the Respondent pro- duced communications received from customers or the Respondent's selling agent dated in the first third of the year either complaining of delayed deliveries or canceling orders because of the failure to make delivery. The General Counsel did not challenge the Respondent's contention that it might have been necessary to resort to a third shift on occasion, but he did con- tend that there was a discriminatory selection and retention of four employees for those assignments. These individuals are Edwin Eugene Wolfe, Sarah Drenin Collins, Ruth Rodgers, and Mary Self. The special circumstances as to each of these employees are as follows : Edwin Eugene Wolfe Edwin Eugene Wolfe was first employed by the Respondent from 1941 until 1943 or 1944. He was reemployed on September 9, 1946, and continued his em- ployment until April 2, 1.948. Wolfe worked as a boarder during both periods. Approximately 2 weeks before the hearing in the Mayes case, Wolfe was assigned to work the third shift from 11 p. m. until 6 a. m. and assigned to board komet socks.? Wolfe was a key witness in the Mayes case and detailed in his testi- mony his part in prior concerted activities by employees for a wage increase which formed the basis from which all the unfair labor practices charged to the Respondent stemmed. He was a key witness for the General Counsel. The night after the Mayes hearing ended Wolfe complained to Bible that he was only working 7 hours on each third shift. He was then told that he could start an hour earlier. Although the komet order, according to Wolfe, was completed in about 13 night shifts after the Mayes hearing he was kept on the third shift until Febru- ary 20. On February 19, Wolfe had a conversation with Smith. Wolfe's version of the conversation was that he told Smith that he had been advised by the Board to give the company an opportunity to put Rodgers, Mary Self, Collins, and himself back on day work. Bible joined them and Wolfe repeated his statement. Smith replied that experienced workers were needed on the third shift. Wolfe asked who selected workers for the third shift and was told that Clevenger made those arrangements. Wolfe remarked that Clevenger must have a grudge against him and the other workers he had named. The conversa- tion ended at that point, Wolfe testified. Smith's version of the conversation was that Wolfe stated that he had been designated by the Union to seek the transfer of Rodgers, Mary Self, Collins, and himself to day work and that Smith told him that a third shift was necessary, that it was the custom to have a man work with women assigned to the late shift, and that such assignments were temporary and would be terminated when work was brought up to date. Company records show that Wolfe worked a third shift on February 20. He then was assigned to the second shift and continued on that shift until his em- 7 The exact date of this assignment was not fixed at the hearing, but company records show that Wolfe worked eight third shifts in the 2-week period ending January 9. MORRISTOWN KNITTING MILLS, INCORPORATED 353 ployment ended on April 2 except for one third shift he might have worked on March 23. There is a conflict in company records as to assignments on that date. Ruth Rodgers Ruth Rodgers had been employed by the Respondent for 4 years. She testified at length at the Mayes hearing. She also joined the Union and recalled that she wore a union button for 1 day while at work, but she could not remember the date. On February 2, Clevenger asked Rodgers to work a third shift the following night. According to Rodgers, the sequence of events thereafter was as follows She telephoned Clevenger the next day and told him that she could not work a. third shift because she had to prepare breakfast for her husband and pack lunch for him. Clevenger refused to excuse her. Later that day Rodgers had another conversation with Clevenger and, she claimed, he agreed that she would only have to work a third shift that night. Rodgers worked the night of February 3, did not work February 4 at all, and worked the first shift, February 5. On February 5, Clevenger told Rodgers to work a third shift on Friday, February 6. Rodgers made no objection. On Saturday morning when Clevenger checked out Rodgers and other workers, he told them to report for a third shift on the next Monday, February 9. Continuing her testimony, Rodgers testified that she telephoned Clevenger on Monday and asked that he replace her on the third shift because her husband objected to it. Clevenger replied that lie would see. Rodgers worked that night and the next morning Clevenger again told her and others on the late shift to come in again that night. Rodgers again protested the assignment and asked why others were not assigned. Clevenger, Rodgers testified, replied that he did not know. Rodgers stated that she could not work the third shift and would be in on Wednesday morning and left. On Wednesday, February 11, Rodgers reported for work on the first shift. When he found. out that she had not worked the preceding evening, Clevenger asked her whether she had not heard him say that if she did not work the preceding night she need not come in for day work. (Rodgers testified that she had heard Cleven- ger make some remark as she left the plant the day before, but had not understood it.) Rodgers then asked Clevenger whether she was discharged. Clevenger replied that she was not discharged, but should go home and come back for the third shift. However, Rodgers did work until about 7 a. in. when Clevenger told her not to continue work, hut to.talk.to a supervisor in the office. Rodgers then went to the office and saw Bible. She explained her family sit- uation to him, but he told her that she would have to work on the shift to which Clevenger assigned her and that he could not "figure out" personal problems. Rodgers then left the plant and did not return to work. Anie Self testified that she overheard the conversation between Clevenger and Rodgers on the morning of February 10 in which he insisted that Rodgers con- tinue to work the third shift and that she should not report for the first shift the next morning. Self also heard the beginning of the conversation between Clev- enger and Rodgers the next morning when Clevenger first learned that Rodgers had not worked the third shift the preceding night. She did not furnish any further details as to that conversation. She testified that at Rodgers' request she got her pay check and separation slip. She denied that she had passed on a mes- sage from Rodgers that she had quit. Clevenger testified that he had only one conversation with Rodgers on a date which he (lid not fix. On that occasion, he testified, Rodgers came in to work on 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a first shift and stated that her husband objected to her working a third shift, and that he, Clevenger, told her that-be had no room for her that day and that she should come back at night. He could not recall how the conversation ended, but declared that Rodgers worked that night. He did not remember how long after that she worked. Bible testified that he had a conversation with Rodgers before she left the plant. According to Bible, Rodgers was crying and complained that Clevenger would not take her off the third shift, that her husband objected to her working those hours, and that she could not continue on the third shift. Bible ascer- tained from her that she had not reported for a third shift the preceding eve- ning, but had come in for work that morning and that Clevenger had refused to permit her to work that shift. Bible further testified that he endeavored to persuade her to work the third shift, and told her it was necessary, but also that it was a temporary assignment and would not last too long. Finally he told her there was nothing he could do about her assignment. Tie Respondent produced a paper signed by Anie Self and prepared by Bible, stating that Rodgers had told her to pass on the information that she had quit and wanted her pay and separation slip. The undersigned found Rodgers' version of her discussion with Clevenger to be more accurate than the testimony of Clevenger and also to have been partially corroborated by Bible. The undersigned concludes that Rodgers quit the Re- spondent's employ after she had tried with no success to have her shift assign- ment changed. Sarah Drenin Collins . Sarah Drenin Collins had been employed as a boarder for over 0 years as of the time of the hearing. She joined the Union in August or September 1947. She also testified in the Mayes case. Collins was one of the important witnesses at that hearing and gave testimony concerning the circumstances leading to the discharge of Mayes as well as on other activities which were found to be viola- tive of the Act. Her testimony was chiefly concerned with the activities and remarks of Clevenger. She also was one of the signers of the petition for a wage increase which petition figured prominently in that hearing. Collins was instructed by Clevenger to work on the third shift on February 3. Collins testified that she told Clevenger that she lived too far, that it would be necessary to drive extra mileage to work a third shift, and that her husband objected to her working a third shift. Collins explained in her testimony that she lived 9 miles from the plant, that when she worked on her regular assign- ment on the first shift, her husband drove her to and from the plant, and that when she worked the third shift she would have to make an extra trip with the family car, and delay her husband until she returned with it. Clevenger did not excuse Collins. She worked a third shift, February 3 and her work record for February was as follows : Iebruary 3-3d shift. February 4-absent. February 5-1st shift. February 6-3d shift. February 7-absent. .February 9--3d shift. February 10-3d shift. February 11-14-absent. February 16-3d shift. February 17-3d shift. I'ebruary 18-26-absent. February 27-1st shift. On February 5, Collins protested when Clevenger assigned her to the third shift. He referred her to Bible. She told Bible that third shift work made it MORRISTOWN KNITTING MILLS, INCORPORATED 355 necessary for two round trips each day with the family car which was expensive. Bible replied that Collins would have to do what Clevenger ordered. Clevenger insisted that she fulfill the assignment. Collins continued to work the third shift through February 17 except when she was absent. She worked a total of six third shifts. Collins further testified that in the week of February 17 she asked Clevenger when the third shift would end and that he replied that he did not know and showed her a paper with some names on it and said, "They brought me this from the office * c • those are the ones working the third shift." Collins testified that she reported for third shift work. on Monday, February 23, but was told that the third shift had been abolished and that Bible wanted to see her. Bible told her there was no work for her immediately. She was put back on the first shift on the following Friday. Clevenger testified that Collins did complain to him of the expense of extra driving for the third shift and that he asked whether she would not have the same expense on another shift. He admitted that he saw someone drive her to work and was uncertain whether she told him that a third shift necessitated an additional trip for her. He also testified that he knew Collins lived away from town, but was not sure of her exact address. He further testified that he told Tier that he did not think that she would have to work a third shift much longer, but that he did not know when she could stop. Bible testified that he had one telephone conversation with Collins in which she asked to be relieved of third shift work because she had to drive 9 miles. Bible replied that she had to drive that distance anyway and that she would have to do what Clevenger told her to do. It is clear from the testimony of Collins, Clevenger, and Bible that Collins was kept on the third shift despite her protests. The undersigned also credits her testimony that she told Clevenger and Bible of the added expense and incon- venience she incurred by working nights. Mary Elizabeth Self Mary Self had been employed by the Respondent for approximately 2J/,-, years. She testified briefly in the Mayes case. Her entire testimony took up three pages in the transcript and dealt primarily with one conversation concerning the Union she had had with Clevenger. Self also attended the February 3 meeting at which, as previously detailed here, management representatives appeared. Self was told to work the third shift on February 5, by Clevenger. She told Clevenger that she did not know whether she would report, but she did do so. On Tuesday, February 10, Clevenger, according to Self, asked her to work a third shift on the next night. She went home and told Anie Self to get her pay for her. Later that same day Mary Self spoke with Bible and told him that she would not work a third shift. They both then spoke to Clevenger. Clevenger told her that she was a good boarder and that she should come in and Bible added, "We can't put just anyone on the third shift." Self agreed to come in for the assignment, but stated that she would not be willing to take another assignment until all the other workers had taken a turn. Self was ill from February 12 for approximately 2 weeks. When she reapplied for work she was, at her request, put back on the day shift and had two other third shift assignments in May. The Respondent's records are in conflict as to whether she had an additional third shift in March. 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent's records Both the General Counsel and the Respondent rely on the Respondent 's attend- ance records in support of their contentions . Two abstracts of these records were received in evidence. The General Counsel introduced a record of daily shift assignments in the Boarding Department from January 26 , 1948, the date from which such a record is available , until July 23, 194S. The Respondent pro- duced a summary showing the number of third shifts worked by each employee during 1947 and 1948 and the pay periods in which that work occurred. There were some minor discrepancies between the two records , but they do not affect the complete picture nor the conclusions to be drawn. These records show that in January 1948, up to and including January 23, Wolfe worked 16 third shifts and Riley Jarnagin , another male boarder, 12 such shifts., Two other boarders who took no part in the Mayes case worked 2 third shifts and 3 third shifts respectively . Another boarder, Rosa Mayes, who testified in the Mayes hearing as a witness called by the General Counsel, worked 4 third shifts. In the 2-week period ending February 6 there was a sharp increase in third- shift assignments . The totals for that period are: Eugene Wolfe____________________ 10 Riley Jarnagin-____------------_ 4 Ruth Rodgers____________________ 2 Christine Wilder ----------------- 5 Sarah Collins-------------------- 2 Helen Brown ------------------ _ 2 Mary Self----------------------- 1 The last three had taken no part in the Mayes case. For the period ending February 20, the totals are : Eugene Wolfe------------------- 10 Mary Self----------------------- 1 Ruth Rodgers-------------------- 1 Ann Lettner_____________________ 5 Sarah Collins-------------------- 4 Pearl Hanks--------------------- 7 Lettner had testified at the instance of the Respondent at the Mayes case. Hanks had taken no part in it. After this, third shift operations dropped off considerably. Several employees received third'shift assignments in succeeding weeks, but in no case was one individual required to work more than 2 nights in a 2-week period except in the case of Riley Jarnagin who worked 3 nights in the period ending April 30. The only substantial night work occurred in the period ending May 14 when 12 employees worked third shifts and 3 of them worked more than 2 times. Bible and Smith testified that the Boarding Department caught up in its work some time in March to the extent that third shifts could be cut down. Wolfe received no third shift assignments after February 20, Collins last worked at night on February 17, and Mary Self, after February 11 was, not assigned to night work until May except, perhaps, 1 night in March as to which Respondent's records are in conflict. ;Seven besides the four persons mentioned in the complaint were called by the General Counsel in the Mayes case and also were employed as boarders by the Respondent in February. Their records on the third shift is as follows : Charles Inman----------------------- 2 (in May). Rosa Mayes-------------------------- 4 (in January). Mrs. Douglas Calfee ------------------ 0. Grace Atkins________________________ 0. 6 Until May, there were four male boarders employed in the Boarding Department, Wolfe, Jarnagin , Charles Inman , and Clifford Dalton. MORRISTOWN KNITTING MILLS, INCORPORATED 357 Mallie Waller------------------------ 0. Mary Spoon ------------------------- 2 (in May). Oneida Mayes------------------------ 3 (February 27 arid 2 in May). Three persons in the above category except that they were called by the Re- spondent were: Esther Sunderland------------------- 0. Viola Myers------------------------- 0. Ann Lettner------------------------- 9 (5 in February ; 4 in May). There were 46 names on the Boarding Department pay roll in February. The records further show that many employees worked on Saturdays until the end of April. Also, Clevenger and Bible testified that foremen in the Boarding Department as well as employees not regularly assigned to the boarding room worked on the third shift to help speed production. No records were submitted as to this work, but the testimony of Clevenger and Bible was not challenged on this point, and their testimony is accepted. Basis of selection for third shift work Clevenger testified that Bible gave him instructions to institute the third shift and left it up to him to make the actual selections. Clevenger testified that he selected Wolfe to work on the komet sock order because he was a good, reliable boarder. He kept Wolfe on the night shift, he testified, after Wolfe voiced objections to it B Clevenger further testified that sometime in January because employees were complaining of discrimination he began making lists of assignments with Bible. He identified one such list produced by the General Counsel as one written by Bible listing assignments on all three shifts. The list is undated and does not specify how long the assignments were to continue. According to Clevenger, it was one of several prepared while third shifts were used. It lists Rodgers, Collins, Wolfe, Hanks, and Lettner for the third shift and was obviously used in February. Clevenger was uncertain as to which names were selected by him and which by Bible. He did recall that he asked Hanks if she could work the third shift and that she replied that she would if her daughter, Lettner, would work with her. Clevenger testified that he spoke with Hanks in advance of her assignment because she was an older woman. Clevenger then substituted Lettner for another employee previously assigned. As to the factors considered in making the selection, Clevenger testified that the best and most dependable boarders were selected because their work was needed and also because there was no regular foreman for the third shift. Later in his testimony, lie stated regularity in attendance was the sole factor considered. He admitted that no check of attendance records was made, but that he depended on his memory. He later added experience to his list of qualifications. He was questioned in detail as to the reasons why some em- ployees were not selected for the third shift. Some of the reasons .Clevenger advanced, were. undependability, pregnancy, children at home, and ill health. In a few instances he could not recall any reason why an employee was not used on the third shift. As to Douglas Calfee, he testified that he did not assign her ° Smith testified, without contradiction, that on one occasion Clevenger told him that Wolfe refused to work on the third shift. Smith then spoke to Wolfe and explained the necessity for the work. Wolfe agreed to help with the order. 807351-50-vol. S6-24 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because she lived 10 to 12 miles away from the plant and had no way to come to the plant for third shift work. Bible corroborated Clevenger as to the procedure followed in making third shift assignments and testified that Clevenger made the decisions, although they jointly prepared lists as to individual assignments. He further testified that workers were selected who could work without supervision and get out work. Later.in his testimony, he added that regularity in attendance was a factor considered. In previous periods he added, there had been some rotation in third shift assignments, but there had been no set interval established for the duration of such assignments and that employees were kept on it until a necessity for a third shift had passed. The testimony of Clevenger and Bible that there had been no effort to dis- criminate against individuals was contradicted by James C. Dalton. Dalton had been supervisor of the second shift in the Boarding Department until February 1948 when he was discharged. Dalton testified that he bad a con- versation with Bible and Clevenger in which Bible stated that he did not want Wolfe or Mary Self to be assigned to any shift except the third shift and that they were to be kept on it. He first testified that the conversation took place a "week or so" after the Mayes hearing. Later he admitted that the conversa- tion could have been before or after the Mayes hearing. He also testified that he believed that Mary Self worked the third shift after this conversation. Bible and Clevenger categorically denied that the alleged conversation with Dalton had ever taken place. W. E. Badgett, of counsel to the Respondent, testified that on November 1, 1948, he, together with C. Frank Davis, also of counsel to the Respondent, interviewed Dalton and that he denied ever receiving instructions to put any employee permanently on the third shift. Wolfe worked the third shift during the period in question. Mary Self did not work a third shift until February 5. Thereafter, she worked 4 days on the first shift before returning to the third shift for 1 night. Her employment record does not support the contention that she was permanently assigned to the third shift, but tends to prove the contrary. From his study of Self's employ- ment record and the testimony of the witnesses, the undersigned credits the denials of Bible and Clevenger that any instructions were given to keep Wolfe and Self on the third shift permanently. Contentions of the parties ; conclusions The General Counsel made no contention as to the Respondent's claim. that the third shift was made necessary by the demands of the business and in and of itself was not instituted in violation of the Act. The General Counsel rests his case on the contention that there was discrimination in the assignment of Wolfe, Rodgers, Collins, and Mary Self to the third shift. The Respondent's records show that Wolfe worked a total of 36 third shifts in January and February 1948, the highest total of any boarder. However, the Respondent's officials testified that it was customary practice not to have women work alone on the third shift and that if they did work a third shift, a man should be assigned to work with them. This contention was not challenged. Under these circumstances, Wolfe's record is best compared with those of the other male boarders. At this time there were four male boarders, Wolfe, In- man, Riley Jarnagin, and Clifford Dalton. Dalton never worked a third shift. Respondent contended without contradiction that Dalton attended school dur- ing the day and therefore was not assigned to any night shift. Jarnigan's record shows that he worked 12 third shifts to Wolfe's 16 up to January 23. MORRISTOWN KNITTING MILLS, INCORPORATED 359 In the week beginning January 26, he worked 4 third shifts, just as Wolfe. He then was absent until February 23. Whether he would have worked as many third shifts as Wolfe during this period if he had been at work is a matter of speculation, although Smith testified that he considered Jarnigan as absent from third shift work. While there is testimony that Jarnigan might have preferred night work, the evidence falls short of showing any discrimination as between Jarnigan and Wolfe in the January-February period. If there was any discrimination in assignments, it was between Wolfe and Charles Inman. Clevenger testified that he did not assign Inman to night work because Inman's wife was pregnant at that time. Wolfe testified that his wife was pregnant also and that he informed Clevenger of that fact. Clevenger denied this, but admitted that Wolfe told him that he had no one to leave with his wife and that she was afraid to be left alone. The undersigned credits Wolfe's version. Smith also testified that Inman was fearful of going out at nights and could not be forced to take night assignments. (However, company records con- tradict Smith to some extent in that they show that Inman worked 2 nights in May.) While, in the opinion of the undersigned the evidence shows that Inman received more consideration than Wolfe in the assumption of the burden of third shift assignments, the difficulty with the contention that the basis for .such favoritism was Wolfe's participation in the Mayes case and his concerted .activities, is that Inman was a key witness in the Mayes case for the General Counsel. The decision in that proceeding reveals that he was one of four boarders who drew up, signed, and circulated a petition for a wage increase, for which activity one employee was found to have been discriminatorily dis- charged. Inman testified in support of the General Counsel's case as to the -discharge and contradicted Clevenger's testimony on important points. Under these circumstances the undersigned concludes that the disparity in the treat- ment of Inman and Wolfe was not violative of the Act. The evidence does establish that Rodgers and Collins were not relieved of their third shift assignments after they had made protests to Clevenger and Bible. The General Counsel also points out that their third shift attendance record would probably have been higher if they had not been absent on certain -evenings between third shift assignments. He also points out that in the past, according to employee witnesses, third shift assignments had not lasted more -than several nights at the most. However, there is no proof that there was any custom or practice for the relief of any worker after any specified number of third shifts. Also, the only year other than 1948 for which there are records in -evidence is 1947. In that year no employee worked more than three third shifts in a pay period, but the 1947 record does not furnish a good standard for com- parison because the total number of third shifts worked in that year is less than the total number of third shifts worked in 1948 before January 26. In the period ending February 3, three other boarders, besides the four im- mediately concerned in this proceeding worked third shifts. In the period ending February 20, there was two others, Pearl Hanks (7 evenings) and Ann Lettner (5 evenings). The General Counsel points out that Hanks was asked by Clevenger whether she would work a third shift and that she agreed to do so if Lettner also was assigned. However, Clevenger's explanation for making a distinction in Hanks' case is plausible and is accepted. Hanks and Lettner -each worked more than Collins during this period. The General Counsel con- .tends that the records warrant the deduction that if Collins had been in at- 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tendance on the eight dates she was absent during this period, she would have been required to work the third shift, at least on five of those dates which fell between third shifts dates. While this contention is open to question, the net result would not have put Collins total substantially ahead of Hanks. The closest case to that of Collins to substantiate a charge of discrimination is that of Douglas Calfee. Clevenger testified that he did not assign Calfee to third shift work because she lived 10 to 12 miles from the plant. He did not extend similar consideration to Collins who lived 9 miles away. Calfee like Collins testified in the Mayes case as a witness for the General. Counsel. She testified that she signed the wage increase petition. She also gave important testimony as to the activities of Clevenger. The case of Mary Self furnishes an interesting contrast to that of Collins and Rodgers. Self quit rather than work a third shift a second time. She was persuaded to return to work on that third shift, was ill for approximately 2 weeks, and then encountered no trouble in being restored to work on the first: shift. In her case there is a failure of proof that there was an attempt to dis- criminate against her by the use of third shift assignments. The treatment accorded her also sheds doubt on the contentions of the General Counsel with respect to Wolfe, Collins, and Rodgers. Lastly, the General Counsel points to the fact that Wolfe, according to his own. testimony which was not contradicted on this point, complained of the third shift assignment of himself and Rodgers, Self, and Collins on February 19 and_ that the original charge in this case was received by the Respondent on Feb- ruary 20. No third shifts then were worked until February 27 and thereafter- they did not, except in May, attain the same proportions as they did in February. Smith and Bible testified that the Boarding Department caught up with its, work in March so that third shifts could be cut down. Saturday work, at higher pay, was continued until the end of April. The last fact tends to bear out the- Respondent's contention that third shifts were instituted under pressure of business at that time and that the third shift was not used as a device for discrimination. In the opinion of the undersigned, the evidence does not substantiate the allegation that third shift assignments were used to penalize workers for their- union or concerted activities or because they gave testimony in the Mayes case.10' The evidence establishes the fact that at the time of the Mayes hearing and. immediately afterwards more third shift work was being assigned to non- participants in that hearing than to employee witnesses who participated in _ that proceeding. In the period from January 26 to February 20, the period in which the General Counsel alleges that the discrimination occurred, a sub- stantial proportion of the third shift burden was assigned employees other than- Wolfe, Self, Collins, and Rodgers. Company records and the testimony of Bible and Clevenger warrant the con-- elusion that there was no plan for rotation and duration of third shift assign- nlents. Special consideration was given to some employees either in not assign- 10 The evidence as to union membership or activities by Self , Rodgers, or Collins is meager or nonexistent. Wolfe's union membership was known before February 1948,. or suspected, according to Clevenger's testimony. He also wore a union button. Collins. testified that she had joined the Union in the Fall of 1947, but there is no proof that the Respondent knew this . Self merely attended the February 3 meeting . Rodgers testi- fied that she had joined the Union and had wore a union button 1 day. Again, there is-. no proof that Respondent was aware of her affiliation. The Respondent -had full knowl- edge of their participation in concerted activities for a wage increase from their testimony- in the Mayes hearing and from the observation of supervisors. MORRISTOWN KNITTING MILLS, INCORPORATED 361 ing them to third shifts or excusing them when they complained. Yet this favored group included those who had been key witnesses against the Respondent and had indicated in their own testimony that they had engaged in concerted activities to obtain a wage increase. There even was a difference in treatment between Self and Rodgers and Collins. The Respondent acquiesced in the independent attitude Self adopted towards night assignments, but was adamant in the cases of Rodgers and Collins. Of course,. the fact that not all those engaged in concerted activities or who testified in a Board proceeding were not discriminated against does not necessarily prove that some were not singled out for such treatment. However, the evidence does not establish discrimination against Mary Self, Edwin Wolfe, Ruth Rodgers, and Sarah Collins because of their protected activities, but rather an unsystematic method of third shift assignments which, by its very nature, bore more heavily on some than on others. C. The alleged discriminatory discharge On February 23, 1948, Wolfe was reassigned to the second shift and remained ,on that shift except for one third shift assignment until his discharge on April 2, 1948. There was one set of boards on which he regularly worked and on which he customarily boarded silk socks, sizes 11 and 12. A few days before April 2, Wolfe asked Coy Trent, supervisor of his shift, if he might transfer to the boards regularly assigned to another employee, Zella Talley. She boarded :silk socks also, sizes 11 and 111/ Wolfe preferred working on her boards since, he testified, on half her boards socks one-half size smaller than those on half his boards would be boarded, thus making the work a little easier. He also claimed that there were more silk socks available for those boards than for his boards. In any case Trent transferred Wolfe to Zella Talley's boards. On April 2 Clevenger, who was then acting as supervisor of the first shift, told Trent that there was a rush order of crew socks, a type of cotton sock, that had to be boarded. Trent, according to his credited testimony, asked Clevenger whether Wolfe would be a satisfactory person for that assignment and Clevenger told him that he could not get a better one for that particular job. Trent then went to Wolfe who was working at Talley's boards. He asked Wolfe to change back to Wolfe's regular boards to work on the crew sock order. Wolfe voiced no objection. They both went over to Wolfe's boards and made the necessary adjustment so that the boards could be changed from silk to crew sock work." Trent and Wolfe then went up to the front of the room to look for work for Wolfe's boards. Watkins, who was Trent's superior in the managerial hierarchy, was standing at the desk in front of the room. Wolfe asked Watkins why he was receiving a change in assignment. Watkins replied that the crew socks had to be boarded to be shipped out the next day. Wolfe declared that that was not the reason for his transfer but that Lavada Davis had caused the change to be "The incidents related here concern the discharge of Wolfe by W. C. Watkins, foreman of the Boarding Department . In addition to Wolfe and Watkins, testimony concerning the discharge and the circumstances leading up to it, was given by Trent and boarders Lavada Davis and Margie Davis . Other employees added corroborative testimony as to particular incidents. The undersigned found that Watkins, Trent, Lavada Davis, and Margie Davis were in substantial agreement concerning what took place, although they differed in detail . The undersigned has based his findings herein primarily on a recon- ciliation of their testimony . Wolfe's testimony did not impress the undersigned as reliable. He could not recall circumstances of vital importance surrounding the discharge and by his demeanor in testifying indicated that be was confused and had difficulty recollecting exactly what took place. The undersigned has accordingly not given great weight to his testimony except when it was corroborated by the testimony of other witnesses whom the undersigned found reliable. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made. Watkins denied this but Wolfe maintained that that was so and declared that he had an entry to that effect in a little book that he carried. Watkins stated that Wolfe had come up with a chip on his shoulder but Wolfe replied that he merely wanted an answer to his question and that he had obtained a letter from the company stating that lie could discuss any problem that arose. In the course of the conversation, Wolfe maintained that he had been hired as a silk boarder, that is, only to board silk socks. Watkins denied this and told him if that were so he would have had to be discharged when there was no silk work for him to board. Watkins told him that he had to board the crew socks to which he had been assigned and Wolfe went back to his place of work. Lavada Davis testified that she had been suffering from rheumatism prior to April 2 and that she complained to Watkins that crew socks were too heavy for her to pull off the boards and that she would have to quit if she could not be assigned to the lighter silk socks. Wolfe probably referred to such a conversa- tion when he told Watkins that he had a note in his book that Davis had caused him to be transferred. In any event, Trent, after he assigned Wolfe to boarding crew socks, transferred Lavada Davis to the boards on which Wolfe had pre- viously worked. When Wolfe returned to his boards he accused Davis of asking for the boards on which he had been working, thus causing his transfer. Davis denied this and said she would prove it. She called Watkins over and then Trent, and. in the presence of Wolfe, asked them whether she had asked for Wolfe's boards. They both said, no. Watkins *and Wolfe had a further discussion at that time, according to their own testimony, in which Watkins, after some angry words, suggested that he quit. Wolfe replied in substance that he wanted to work and that Watkins had an opportunity to quit if he wished to do so. Watkins then walked away and Wolfe returned to work. In approximately a half hour Wat- kins returned to the boarding room and went to Wolfe's place of work. Watkins testified that his purpose in entering into further discussion with Wolfe was, as he put it, to straighten things out and to come to an understanding with him. Wolfe's version of what occurred was that Watkins told him that all he wanted to do was to argue, and that he, Wolfe, replied that the matter was settled. Wat- kins then retorted that Wolfe had started the matter. Watkins then accused him of not being willing to work and Wolfe denied this. Thereupon, Wolfe testi- fied, Watkins said he was firing him. Wolfe then asked if lie was being dis- charged because of his union activities, to which Watkins replied, "Don't start that damn stuff." Watkins version was that he started the conversation by telling Wolfe that they both could not run the boarding room and that Wolfe replied, "Bill, we have had our argument. You get your money from the same man I do and there is noth- ing you can do about it." Thereupon, Watkins testified he told Wolfe that he would show him that there was something he could do about it, and that he told him to even up his work preparatory to being terminated. Two other persons overheard the conversion or at least parts of it. Lavada Davis and Margie Davis were working in aisles on either side of Wolfe's boards. Lavada Davis testi- fied that she heard Wolfe tell Watkins that he got his money from the same company from which he got his money and there was nothing that Watkins could do about it. She heard Watkins reply that "we will see whether there is any- thing that can be done about it," that she observed Watkins go to the office, come back and tell Wolfe to even up his work. She further testified that she heard Wolfe ask if he was discharged and heard Watkins say that he was. She did MORRISTOWN KNITTING MILLS, INCORPORATED 363 not hear the rest of the conversation. Margie Davis gave the following version of what occurred: Q. Was anything more said about that time, Miss Davis? A. Yes, Sir. Gene said, "Bill," said, "I thought we settled this up at the desk," and Bill said, "No, it isn't near settled." Gene said, "I wish you would settle it then." And lie said, "I am going to settle it." And Gene said, "Bill, you get your money from the same man and the same company that I do, don't you?" And Bill said, "Yes." And he said, "Well, there's not a thing you can do about it." Q. Was that the full conversation? A. Yes, but Bill said, "Al'e will see whether there is something I can do about it or not." Q. Did you hear anything that was said between then at this time? A. Well, I don't know. I was working. I just heard that. Q. Then what was done? A. Bill left again, and he went back to the desk where the bosses were. There was some bosses standing back there. And then I looked around to put my work on the other side of the boards, and I saw Bill go through the pairing room towards the office. And he came back with a sheet of paper, and he said, "Gene, even up your dozens." He says, "What do you mean? I'm fired?" And he said, "Well, yes." He said, "Well, what did you fire me for?" and he said, "Well, ask the others." Q. What did Wolfe do then? A. He went ahead and was evening up his dozens. He says, "Bill, you know I belong to the union," and Bill said, "I know it, but," he said, "there isn't anything they can do about it." Both Margie Davis and Lavada Davis were working at the time and admitted that they were not certain that they heard the entire conversation between Watkins and Wolfe. As to those matters which they testified they heard, they were in substantial agreement. Their testimony does corroborate that of Watkins as to what was said immediately before he discharged Wolfe. The undersigned credits the testimony of Watkins as corroborated on this point. Wolfe was given a discharge slip which listed as the reason for his discharge "insolence, noncooperation, and contumacy." Conclusions The General Counsel maintains Wolfe was not discharged for the assigned reasons but because of his concerted and union activities and because he testified in a prior Board proceeding. In support of his contention the General Counsel points to the fact that management representatives freely admitted that Wolfe was a very capable employee, that this was the first incident of its type involv- ing Wolfe which had occurred, and that Wolfe had accepted the transfer and was at work when Watkins came up to him and started the discussion precipitat- ing the discharge. The General Counsel further points to the fact that Watkins did not ask Trent for his recommendation in this case. The General Counsel also calls attention to the fact that the Intermediate Report in the Mayes case was received by the Respondent at about the time of the discharge. Board records do indicate that that report was mailed on March 30, 1948, but the date of actual receipt does not appear in Board records. There is no substantial proof that the transfer of Wolfe on April 2 by Super- visor Trent was motivated by other than business considerations. When Wolfe 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD received an explanation for the transfer from Watkins he denied that the ex- planation given was the correct one and in effect called Watkins a liar. He then went back to his place of work and created a disturbance by accusing Lavada Davis of causing his transfer. When Watkins reprimanded him on this occasion and suggested he quit, Wolfe retorted that Watkins could quit too. When Watkins carne back after an interval and had another conversation with Wolfe, Wolfe attempted to cut him short and also told him in the hearing of two other boarders that they both received their salaries from the same company and that there was nothing Watkins could do about it. Watkins thereupon discharged him. In the opinion of the undersigned there has been a failure of proof that Wolfe was discharged in violation of the Act. The key question herein is the conclusion to be drawn from the final conversation between Wolfe and Watkins, and particularly the latter's motives in starting that conversation and taking the action he did. There is no proof that Watkins came up to Wolfe with any other intention other than to reach an understanding over the previous incidents which under the circumstances he had a clear right to do. There is every indication that Watkins had not come to Wolfe with the preconceived notion of discharging him, but that he acted on the spur of the moment after Wolfe, in effect, had challenged his authority over the boarding room personnel. Under these circumstances the undersigned credits Watkins' testimony as to his reason for starting the last conversation and taking the action of discharging Wolfe, and accordingly finds that this does not substantiate the contention that Wolfe was discharged in violation of the Act. IV. THE EFFECT OF THE UNFAIR LA13OR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III above, occurring in connection with the operations described in Section I above, have a close, inti- mate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as have been found to be unfair labor practices, 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 certain unfair labor practices it will be recommended that it cease and desist therefrom in order to effectuate the policies of the Act. It has been found that the Respondent, by the conduct of key supervisory officials, as well as by the activities of an employee sent to the union meeting of February 3, engaged in surveillance of that meeting. While it is true that the supervisory officials left that meeting after a relatively short period, their presence there constituted an intimidation of production employees which would reasonably have the effect of putting em- ployees in fear that their attendance at union meetings would become known to management officials. In the Mayes case, the Board concluded that the Respondent had discrimi- natorily discharged one employee and had committed other independent violations of the Act. Under these circumstances the conduct of the Respondent's super- visory officials at the union meeting of February 3, 1948, cannot be considered an isolated violation of the Act, but rather one in a list of violations seriously inter- fering with the rights of its employees under the Act and requiring affirmative remedial action. In order to assure employees of their full freedom to engage in concerted or union activities if they desired, steps must be taken, in the opinion of the under- MORRISTOWN KNITTING MILLS, INCORPORATED 365 signed, to assure them that they can engage in such activities free from any sur- veillance or interference therein. It will accordingly be recommended that the Respondent cease and desist from engaging in the activity herein found violative of the Act, and from interfering with the rights of its employees in any like or related matter. On the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of the Respondent. 2. By engaging in the surveillance of a union meeting on February 3, 194S, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 4. The Respondent did not transfer and assign employees Edwin Eugene Wolfe, Ruth Rodgers, Sarah Drenin Collins, and Mary Self to a less desirable work shift and to more arduous and less desirable work than they formerly had in violation of the Act. 5. The Respondent, on or about February 1.0, 1948, did not constructively discharge Mrs. Ruth Rodgers in violation of the Act. 6. Respondent, on or about April 2, 1948, did not discharge Edwin Eugene Wolfe in violation of the Act. 7. The Respondent, by its officers, agents, representatives, and employees, has not inquired, questioned, or interrogated its employees concerning their union desires, sympathies, memberships, activities, meetings, and union business. 8. The Respondent has not urged, threatened, and warned its employees to refrain from assisting, becoming members of, or remaining members of the Union.12 RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that the Respondent, Morristown Knitting Mills, In- corporated, Morristown, Tennessee, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Engaging in any manner in the surveillance of union or concerted activi- ties of its employees ; (b) In any like or related matter interfering with, restraining, oa- coercing its employees in the exercise of their rights to self-organization, to form labor organ- izations, to join or assist Textile Workers Union of America, CIO or any other labor organization, to form labor organizations, bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guar- anteed in Section 7 of the Act. 11 The Respondent has submitted 70 proposed findings of fact. Of these the following have been accepted : Nos. 1, 2, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27, 29, 30, 31, 33, 34, 35, 39, 41, 42, 43, 44, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 66, 67, 68, 69. The Respondent also submitted 8 proposed conclusions of law. Of these items 1, 2, 3, 4 and 5 have been accepted. The remaining items in the proposed findings of fact and conclusions of law have been rejected either as contrary to the findings herein or not relevant to the determination of the issues. 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which the undersigned finds will effec- tuate the policies of the Act : (a) Post at its plant at -Morristown, Tennessee, copies of the notice annexed 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 said Respondent's representative, be posted by said Respondent immediately upon receipt thereof and maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by said Respondent to insure that said notices are not altered, defaced, or covered by any other material ; (b) File with the Regional Director for the Tenth Region, as an agent for the Board, within twenty (20) days from the date of service of this Intermediate Report, a report in writing setting forth in detail the manner or form in which it has complied with the foregoing recommendations. It is further recommended that the complaint be dismissed insofar as it alleges that the Respondent assigned four named employees to a less desirable work shift and constructively discharged one of those employees because of that assignment and its refusal to change it; that the Respondent discriminatorily discharged employee Edwin Wolfe on April 2, 1948; and that the Respondent in other respects other than those specifically set forth above, violated Section 8 (a) (1) of the Act. All parties are hereby advised that upon the filing of this Intermediate Report and the serving of copies thereof upon the parties-as provided in Section 203.45 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended, effective August 18, lfli8-the Board will enter an order transferring the case to itself, and will serve a copy of the order upon each of the parties, setting forth the date of the transfer aforesaid. If, within twenty (20) days from the (late of service of this Intermediate Report, the Respondent shall satisfy the Regional Director, as the agent of the Board, that it has complied, or will comply, with the foregoing recommenda- tions, it is recommended that the National Labor Relations Board issue an order, or take other appropriate action, to close the case within twenty (20) days from the date of service of this Intermediate Report that it has complied, or will comply, with the foregoing recommendations, it is recommended that the National Labor Relations Board issue an order requiring the Respondent to take action aforesaid. All parties are advised, however, that any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, file with the Board, Washington 25, D. C.-pursuant to Section 203.46 of the afore- said Rules and Regulations-an original and six copies of a statement in writing setting forth such exceptions to the Intermediate Report, or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and six copies of a brief in support thereof. Matters not included in the Statement of Exceptions may not thereafter be urged before the Board, or in any further proceeding under the Act. Any party also may, within the same period, file an original and six copies of a brief in support of the Intermediate Report. Immediately upon the filing of such a Statement of Exceptions and supporting brief, or brief in support of the Intermediate Report, the party filing the same shall serve a copy thereof upon each of the other parties. Proof of service oil the other parties of all papers filed with the Board shall be properly made as required by Section 203.85. MORRISTOWN KNITTING MILLS, INCORPORATED 367 :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. The parties are further advised that, in the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, and in the absence of compliance, all objections and exceptions to this Intermediate Report shall be deemed waived for all purposes-as provided in Section 203.48 of the afore- said Rules and Regulations-and the findings, conclusions, and recommenda- tions contained herein shall be adopted by the Board and become its findings, -conclusions, and order. Dated at Washington, D. C., this 5th day of April 1949. SIDNEY L. I+EILER, Trial Examiner. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Stelations 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 engage in any surveillance of union or con- certed activities. WE WILL NOT in any like or related matter 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 WORKERS UNION OF AMERICA, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. ALL OUR EMPLOYEES are free to become or remain members of this Union or any other labor organization. MORRISTOWN KNITTING MILLS, INCORPORATED, Employer. By --------------------------------------------------- (Representative ) ( Title) Dated-------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.