Caroline Mills, Inc.

In the Matter Of CAROLINE MILLS ; INC. and TEXTILE WORKERS UNION OF AMERICA, C. I. O. Case No. 10-C-1755.Decided October 17, 1946 Mr. John W. Coddaire, Jr., for the Board. Mr. Shirley Boylcin, of Carrollton, Ga., and Messrs. Weekes e i Candler, by Mr. John Wesley Weekes, of Decatur, Ga., for the respondent. Mr. Leonard J. Mandl, of counsel to the Board. DECISION AND ORDER On July 15, 1946, Trial Examiner John H. Eadie issued his Inter- mediate Report, in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, exceptions to the Inter- mediate Report were filed by the respondent. On September 10, 1946, the Board heard oral argument at Washington, D. C., in which the Union and the respondent participated. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions thereto, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the following additions. 1. The Trial Examiner found that Overseer Duncan told a group of employees, "Well, I have got to get shed [sic] of these Union fellows if I stay around here myself"; that Duncan questioned an employee concerning his union activities; that Overseer Bass told employee J. B. Mize that Bass was going "to get rid of that damn Union man [another employee]" and give Mize his job; and that the respondent discriminatorily discharged two employees because of their union membership and activities. By all this conduct, the respondent engaged in unfair labor practices within the meaning of Section S (1) of the Act. 71 N. L R B, No 54. 369 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. About January 3, 1945, Overseer Bass promised to give Mize another job which Mize had requested; but only 10 days later Bass informed Mize that he was not needed at all and instructed him not to return to work. Bass told Mize at the time that he had learned of Mize's membership in the Union. In view of this cogent evidence of discriminatory motivation, we agree with the Trial Examiner's con- clusion that the respondent discharged Mize because of his member- ship in the Union and not, as the respondent asserted, because he suffered epileptic seizures. We also deem it significant, as further supporting this conclusion, that, although Mize's physical condition was unchanged in December 1945, the respondent nevertheless hired him on a part-time basis as a frame operator. This work was con- ceded by counsel for the respondent at the oral argument to involve ,greater danger than the oiler's job held by Mize at the time of his discharge. 3. We also agree with the Trial Examiner's conclusion that the respondent discriminatorily discharged Weyman Jacobs because of his membership and activities in the Union. The respondent had ample knowledge of Jacobs' activities: he was union committeeman, he had acted as the Union's observer at a Board election several months before his discharge, and earlier that same year he had also testified in the Board's behalf in two other unfair labor practice proceedings against the respondent. On or about July 15, 1945, Plant Superintendent Hall told Over- seer William Duncan that "we are going to get [rid of union members] one way or another. . . . We can't come straight out and fire them. We can transfer them and make it too hard and lay them off and make it hard and they will quit." The record conclusively shows that, following this conversation and until the termination of Jacobs' employment 5 days later, the respondent did, indeed, "make it hard" on Jacobs. Thus, on July 18 Overseer Bass ordered Jacobs to sweep under the frames each night in addition to performing his regular duties as an oiler, although this extra task had not theretofore been part of the oiler's duties. When Jacobs protested the unfairness of "doubling up" on him, Bass replied that "you needn't expect any favors around here as long as you work for the Union, pull for the Union; we don't want any union around here." Bass also referred t o the fact, mentioned above, that Jacobs had testified at the previous proceeding. Two days later, Bass directed Jacobs to operate the opening room, a task which would seriously affect his health, as Jacobs had advised the respondent a year before. When Jacobs explained to Bass the reason for his inability to perform this new assignment, stating that "it nearly kills me . . . to work down there," Bass once more informed Jacobs that he could not "expect any favors down here as long as you hold out and work for the Union here." CAROLINE MILLS, INC. 371 The assignment of the opening room job to Jacobs with the knowl- edge that he would be compelled to refuse it for reasons of his health was tantamount to a discharge , as the Trial Examiner properly found. As the record establishes the unlawful motivation for this conduct of the respondent , the termination of Jacobs ' employment was an un- mistakable violation of the Act. 4. The respondent excepted to certain credibility findings which the Trial Examiner made in regard to the testimony of William Dun- can, formerly a supervisory employee of the respondent but no longer in its employ at the time of the hearing. Although called as a Board witness , Duncan failed to answer the Board subpena served upon him and it became necessary for the Board to obtain a Court order to compel Duncan's attendance at the hearing. When finally he did testify , Duncan's testimony was, in certain re- spects, inconsistent with written statements which had previously been made by him and which were introduced in evidence . The vari- ances between Duncan's oral testimony and his signed statements involved certain matters as to which he gave testimony adverse to the complaint . The Trial Examiner found , upon observing Duncan and his conduct as a witness , that Duncan's demeanor was that of a hostile and reluctant witness. We have fully and carefully considered Duncan 's testimony; and in view of the nature of the inconsistencies in Duncan 's statements, the circumstances of his compelled appearance at the hearing, the Trial Examiner 's appraisal of Duncan as a witness , and the entire record in the case, we find insufficient reason to question the Trial Examiner's findings in respect to Duncan's testimony. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent , Caroline Mills, Inc., Car- rollton, Georgia, and its officers , agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in Textile Workers Union of Amer- ica, C. I. 0., or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees , or by dis- criminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment; (b,) 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 America, C . I. 0., or any other labor organization , to bargain collec- 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to J. B. Mize and Weyman Jacobs immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges; I (b) Make whole J. B. Mize and Weyman Jacobs for any loss of pay they may have suffered by reason of the respondent's discrimina- tion, by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages during the period from January 13, 1945, and July 20, 1945, respectively, the dates on which they were discharged, to the date of the respondent's offer of reinstatement, less his net earnings during such period; (c) Post at its plant in Carrollton, Georgia,'copies of the notice attached to the Intermediate Report, marked "Appendix A." 2 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the respondent's representa- tive, be posted by the respondent 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, defaced, or covered by any other material: (d) Notify the Regional Director for the Tenth Region, in writing, within ten (10) days from the date of this Order, what steps the respondent, has taken to comply herewith; AND IT Is FURTHER ORDERED, that the complaint, insofar as it alleges that the respondent discriminatorily discharged Mozelle Jacobs and Joe Caswell, be, and it hereby is, dismissed. INTERMEDIATE REPORT Mr. John Td% Coddaire, Jr, for the Board Mr. Shirley Boykin, of Carrollton, Ga., and Messrs Weekes & Candler, by Mr. John TVesley tiVeekes, of Decatur, Ga, for the respondent. ' Although J. B Mize was reinstated by the respondent on December 10, 1945, the record does not show that he was reinstated to his former of a substantially equivalent position. We aie therefore ordering full reinstatement. 2 This notice, however, shall be, and it hereby is, amended by striking from the first paragraph thereof the words "Recommendations of a Trial Examiner" and substituting in lieu thereof the words "A Decision and Order " In the event this order is enforced by decree of a Circuit Court of Appeals, there shall be inserted, before the words "A Decision and Older," the words "A decree of the United States Circuit Court of Appeals enforcing CAROLINE MILLS, INC. STATEiI EXT OF THE CASE 373 Upon an amended charge duly filed by Textile Workers,tinion of America, C I 0, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Tenth Region (Atlanta, Georgia), issued its complaint dated April 10, 1946, against Caroline Mills, Inc, herein called the respondent, 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 Rela- tions Act, 49 Stat. 449, herein called the Act Copies of the complaint and notice of hearing were duly served on the respondent and the Union. With respect to the unfair labor practices, the complaint alleges in substance that the respondent: (1) discharged J. B. Mize on or about January 13, 1945, Weyman Jacobs on or about July 20, 1945, Mozelle Jacobs on or about July 20, 1945, and Joe Carwell on or about October 12, 1945; and failed and refused to reinstate said employees for the reason that they joined or assisted the Union or engaged in other concerted activities; and (2) by these acts, and from on or about March 15, 1945, to the date of the complaint, through its officers, agents and supervisory employees, including John Bass, by making disparaging remarks about certain employees because of their union affiliation; by stating that any employee who was a member of the Union could leave its employ; by stating to an employee that it did not want a union in the plant ; by stating to an employee that said employee could not expect any favors because of his union activities ; and by urging, persuading, threatening and warning employees to refrain from with, assisting, becoming or remaining members of the Union, interfered restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On or about April 19, 1945, the respondent filed an answer wherein it admitted certain allegations of the complaint as to the nature and extent of its business, but denied the commission of any unfair labor practices At said time the re- spondent also filed a formal motion to dismiss the complaint. Pursuant to notice, a hearing was held at Carrollton, Georgia, on April 22, 23, and 25 and May 28, 1945, before the undersigned Trial Examiner, duly desig- nated by the Chief Trial Examiner The Board and the respondent were repre- sented by counsel. Excepting the Union, all parties participated in the hearing. Full opportunity to be beard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all pasties At the opening of the hearing the undersigned denied respondent's written motion to dismiss the complaint, but treated said motion as a demand for a bill of particulars. Accordingly, the undersigned directed Board's counsel to par- ticularize on the record certain allegations of the complaint. The Board com- plied with the undersigned's order. At the close of the Board's case-in-chief, the respondent moved to dismiss the complaint. The motion was denied. After the taking of all testimony, the respondent renewed its motion to dismiss the complaint. Ruling on the motion was reserved. The motion to dismiss is dis- posed of as hereinafter indicated At the conclusion of the evidence the Board's counsel moved to conform the pleadings to the proof as to formal matters such as names and dates. The motion was granted z i At the hearing Board's counsel moved io amend the complaint with respect to the dates of discharge of Prize and Carwell The complaint originally alleged that 111ize and Carwell ilere discharged on \iaich 30, and October 22, 1945, respectively. The motion to amend was granted over the objection of the respondent. 2 The respondent did not object to the motion, except insofar as it related to the dates of the discharges as alleged in the complaint. 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All the parties waived oral argument at the close of the hearing. Although offered an opportunity to do so, none of the parties filed briefs with the under- signed. _ Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINFISS OF THE RESPONDENT Caroline Mills, Inc., is a Georgia Corporation, engaged in the manufacture, sale and distribution of cotton yarn and synthetic fibre, and with its principal office and place of business located at Carrollton, Georgia. During the fiscal year ending June 30, 1945, the respondent caused approxi- mately $250,000 worth of raw materials to be purchased and transported from sources outside the State of Georgia to its Carrollton plant. During the same period it caused approximately $600,000 worth of the products manufactured at said plant to be transported to and through States of the United States other than Georgia. At the hearing the respondent admitted that it is engaged in commerce within the meaning of the Act. The respondent employs about 175 persons on the average. II TILE LABOR ORGANIZATION INVOLVED Textile Workers Union of America, affiliated with the Congress of Industrial Oiganizations, is a labor organization which admits to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES 1. Respondent's labor relations history and policy, interference, restraint, and coercion After a hearing held at Carrollton on February 21, 1945, a Trial Examiner found that the respondent had engaged in unfair labor practices within the meaning of Section 8 (1) and (3) of the Act. Upon appeal, the Board sustained the Trial Examiner's findings 3 On April 17, 1045, the Board conducted an election among the employees of the respondent. The Union lost the election and thereafter filed objections with the Board, alleging that the respondent had engaged in unfair labor piactices which had affected the outcome of the election The Union also filed a charge with the Board, alleging that the respondent had engaged in unfair labor practices. Upon consolidation of the proceedings by the Board, a hearing was held at Carrollton hetoie a Trial Examiner on June 7 and 8, 1945. The Trial Examiner found that the iespondent had engaged in certain unfair labor practices within the meaning of Section 8 (1) of the Act. After appeal by the respondent, the Board in its decision sustained in part the Trial Examiner's findings of interference and ordered that the election be set aside 4 In the instant case the Board called as its witness William Duncan, formerly an overseer of the respondent on the third shifts Duncan testified credibly, in sub- 3 In the Matter of Caroline Mills, Inc, 64 N L R B 200 ' In the Matter of Caroline Mills, Inc (Cases Nos 10-C-1713 and 10-R=1383), 64 L R B 376 5 Duncan was discharged by the respondent about September 1945, for drinking. The Boaid issued a subpcna to Duncan but he did not attend the hearing until the Board ob- CAROLINE MILLS, INC. 375 stance, that at sometime between July 1 and 4, 1945, he had a conversation with J. W. Dunsford, assistant superintendent of respondent's plant ; and that Dunsford told him that employees Cole and Joe Carwell were too bold about wearing their union buttons and that the respondent accordingly would have to discharge them. At some time between July 5 and 10, Duncan was sitting in front of the plant with a number of unidentified employees Wyman Jacobs approached the group and spoke briefly with one of the employees. Duncan then stated to the group as a whole, "Well, I have got to get shed of these Union fellows if I stay around here myself."' The undersigned finds that this statement by Duncan constituted interference, restraint, and coercion. On about July 15, Duncan conferred with Dunsford and C. L. Hall, plant superintendent, in the latter's office' Duncan testified and the undersigned finds that the following conversation took place : "Mr Hall," he said, "You know about who is union," and I said, "I might have an idea who is union, but I don't know them and I wouldn't say " He,said, "Well, we don't care who is, but we are going to get shut of them one way or another . . . We can't come straight out and fire them We can transfer them and make it too hard and lay them off and make it hard and they will quit."' Bryant Word, a fly frame operator on the third shift and an active member of the Union, was laid off from work by Duncan on at least 2 nights during July and August of 1945 Ile received another 1 night lay-off dieing December 1945. The undersigned is convinced and finds that Word received these lay-offs because of his membership in and activities on behalf of the Union and that such acts by the respondent constituted interference, restraint and coercion The evidence clearly shows that the respondent knew that Word was a mem- ber of the Union Word testified without contradiction that Duncan had qucs- tanned an order from the District Court of the United States In the undersigned's opin- ion, Duncan was a hostile and reluctant witness, insofar as the Board's case was concerned. Aside from the fact that it was necessary for the Board to obtain an order of the Court to compel his attendance, this was apparent from his demeanor as a witness The Board introduced into evidence two statements, signed by Duncan, which in some respects are in conflict with his testimony adveisely to the Board Accordingly, the undersigned does not credit Duncan's entire testimony, but only where convinced that it is truthful. Evidence adduced at the hearing by both the Board and the i espondent conclusively shows that over- seers were supervisory employees. 9 Jacobs testified to the above statement of Duncan and the undersigned credits his testi- mony in this connection As will be hereinafter related, Jacobs was openly active in behalf of the Union Duncan did not specifically deny the statement attributed to him by Jacobs. He admitted the occuirence but testified that lie could not recall what lie had said On cross-examination, however, lie testified that the Union was not mentioned ' Hall became superintendent on or about March 15, 1945 Prior to that time Minis held the position, as will be hereinafter related 8 Both Hall and Dunsford denied that the conversation took place The undersigned does not credit their denials It is apparent from the record that the respondent subse- quently followed the above policy as stated by Hall Bryant word testified that on one occasion Duncan stated to him, "It looked to me like that you and Joe (Carwell) got it I was told to make it hard for you-all", and that on another occasion when they were discussing employee Frank Cole, Duncan said, "I wish I could help hill if I could, but he is Union. I got orders to make it as hard on him as I can " Duncan testified that Hall mentioned Cole as a member of the Union during the above convei cation Joe Caiwcll worked undei Duncan at sometime dining the year 1945 but the exact dates are not clear from the record Duncan testified that Carwell was mentioned by Hall as a member of the Union during the above conversation Caiwell testified that lie had a con- versation with Duncan at sometime after they were no longer employees of the respondent and that Duncan told him that he had been given orders to fire him and several other employees 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tioned him while they were at work concerning his union activities and that after Duncan was fired he ( Duncan ) told him that he (Word) had received the lay-offs because of his union activities at the instruction of Dunsford . Duncan testified, in substance, that he laid off ford as a reprimand for absenting himself from work and not because of the instructions he had received from Dunsford. The undersigned does not credit Duncan 's testimony in this request The lay-offs clearly followed the policy toward union members as enunciated by Hall during his conversation with Duncan as above related. 2 The discriminatory discharge of J. B. Mize Mize entered the respondent's employ during the latter part of the year 1944 o He was hired to open ote frames but worked as an oiler on the second shift until discharged. The overseer on the second shift at all times mentioned herein was Johnny Bass. Mize joined the Union when he was first employed by the respondent and was thereafter active in its behalf" On about January 3, 1945, Mize questioned Bass concerning when he (Mize) would be advanced to the position of frame operator." Bass replied that Mize would get the job as soon as lie could be replaced. Bass then pointed to Weyman Jacobs, who was a frame operator at the time, and said, "I am going to get rid of that damn Union man and give you that job " 12 On Saturday, January 13, Mize again asked Bass when he would be put on frames or would receive the equivalent in wages Bass replied, "I found out you belong to the Union I don't even need you on the job you are on . . . you needn't come back." Mize answered that he would return for the wages owed him." On the following Monday, January 15, Mize returned to the plant for his wages. He was met at the plant entrance by Bass who took him to the office of Minis, the plant superintendent. Mize asked Minis for a release. Mims replied, "Well, you don't get no release . . . We ain't firing you We laying you off" Mize asked the reason for the lay-off, but Mims refused to answer Aftei a threat by Mize to take his family out of the plant, Mims made out a release.54 However, Mize then stated, "I believe I will just get them out anyway." There- upon, Mims destroyed the release As Mize was about to leave the office. Minis called him back. After some further conversation, Minis finally gave Mize a release." The iecord does not show the exact date of hiring 11 Mize testified that at his solicitation his two sons and his daughter-in-law, w lio also were employees of the respondent, joined the Union " The evidence shows that frame operators received higher wages than oilers 12 Misc testified to the above conversation and the undersigned credits his testimony in this connection Bass denied that any such conversation took place. Bass did not im- press the undersigned as a credible witness, especially in connection with other issues in the case, hereinafter related. 13 Mize testified credibly to the above conversation Bass, in effect, denied the entire conversation He testified , in substance , that Mize had had a number of epileptic fits while at work , that lie (Bass) had discussed MIlze's condition with Plnns, plant superintendent at that time, and that he and Mims then called Mize to the office and told him that he would have to "rest up a while," although Mize protested that lie thought his condition would be all right Mims was not called as a witness at the hearing Mice denied that his physical condition was discussed when he was discharged He further testified that he had not had any "spells" for at least 10 days prior to his discharge 14 The evidence shows that at all times mentioned herein skilled labor was scarce in the vicinity of Carrollton 11 Mice testified to the above conversation and the undersigned credits his testimony in this respect For Bass' version of the conversation see footnote 13, supra The release CAROLINE MILLS, INC. 377 Mize was rehired by the respondent on December 10, 1945, as a part-time employee It is undisputed that when he was rehired the respondent questioned him concerning his physical condition. Conclusions as to J. B Mize's discharge The respondent admits that Mize was discharged on January 13, 1945. How- ever, the respondent contends that he was discharged because of his epileptic attacks It is the uncontradicted testimony of Mize that he did not have any attacks for at least 10 days prior to January 13, or from about the time Bass told him that he planned to make him a frame operator in place of Jacobs There is no dispute that Mize had had a number of attacks in the plant prior to that time. If the respondent had been seriously concerned about Mize's physical condition, it does not seem likely that it would have considered promoting him to the position of frame operator That the respondent was not so concerned is shown by the fact that he was rehired as a frame operator in December, 1945. It does not appear that Mize was openly active on behalf of the Union is When Bass referred to Jacobs as a "damn union man," Mize did not in any way indicate that he was an adherent of the Union. Bass subsequently'learned that Mize was a member of the Union, as shown by his statements on January 13. From that conversation it is apparent that Mize was discharged because of his union affiliation and for that reason alone. Accordingly, the undersigned finds that the respondent discharged Mize on January 13, 1945, because of his membership in and activities in behalf of the Union. The undersigned further finds that Bass' statement to Mize concerning Jacobs constituted interference, restraint and coercion. 3 The discriminatory discharge of Weyman Jacobs and the alleged discrimina- tory discharge of Mozelle Jacobs Mozelle Jacobs is the wife of Weyman Jacobs They were first employed by the respondent about September of 1942, and worked on the second shift under Bass. Weyman Jacobs was an oiler for about 4 or 5 months prior to his discharge, but during his employment he had at times been a frame operator" It appears that his wife was at all times a frame operator. Weyman Jacobs was a committeeman of the Union and was openly active in its behalf He testified as a witness for the Board at the hearings held in Febiuary and June, 1945, and acted as an observer for the Union at the election conducted in April. Mozelle Jacobs testified at the June hearing as a witness for the Board. Prom about the last of June 1945, until he was discharged, Bass required Wey- man Jacobs to work in the picker room for 1 or 2 hours almost every night. This job was in addition to his regular duties as oiler. On July 18 Bass told Jacobs to sweep under the drawing frames every night. Jacobs testified and the undersigned finds that the following conversation ensued : was not introduced in evidence Mize testified that he presented the release to his next employer when he was hired at a mill located at Douglasville, Georgia In an attempt to discredit Mize's testimony, the respondent introduced in evidence Mize's employment application at that mill in which the reason for leaving the respondent's employ is stated as "Dissatisfied " The undersigned attaches no significance to this fact, especially since the respondent admits that Mize was discharged. Bass testified that he did not see Mize wear a union button in the plant. Weyman Jacobs also worked as an oiler at some undisclosed time on the third shift under Duncan. 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I said, "Mr. Bass, what are you trying to do, double up on me?" He said, "No " He said that went with the job. I says , "It hasn't since I have been here." . . . I said, "I will see Mr. Dunsford tomorrow and see what he says." He says , "Mr. Dunsford is not running this shift . You will do what I tell you if you stay around here." . . . And I says, "What would you call it except doubling up on me?" And Mr Bass says , "You can't expect any favors around here as long as you stick out or hang out for what you are. 11 18 On July 19 Jacobs met Dunsford shortly before 2 p in., the starting hour for the second shift. Jacobs testified and the undersigned finds that the following conversation ensued : A. I asked him-I was going in to wm k then I asked Jlr Dunsford if he gave Mr. Bass orders to put more work on inc He said, "No, sir. What is the matter?" I says, "Mr. Bass told me to clean out from under the drawing frames every night, sweep out from under them." And Mr. Duns- ford says, "No, I haven't given him that order " He says, "I will see about that." And then he says, "I would be glad if they were swept out from under as much as once or twice a week." And I told him, I says, "I would be glad to do that for you." He says, "I would be glad if you would sweep out from under them as much as once or twice a week." He said, "I will see Mr. Bass about it." Ill Shortly after the start of the shift on July 19, Bass approached Jacobs and stated that he wished to talk with him. As to this conversation, Jacobs testi- fied credibly as follows : I was stripping cards. And I walked over where he was at He says, "The old man told me that you told him I was trying to get hard on you " I spoke to him, I said, "What in hell are you trying to do if you ain't?" He said, "Well, Jacobs, you needn't expect any favors around here as long as you work for the Union, pull for the Union ; we don't want any union around here " I says, "Well," I says, "you said you wasn't trying to get hard on me." He says, "No, I ain't." He said, "You go ahead and do what I tell you to do and we will get along like brothers." And he turned and walked off. And I said. "Continue keeping up the extra jobs that you give?" And he didn't make any reply back 20 ° Jacobs further testified and the undersigned finds that Bass also in this con- versation referred to the fact that Jacobs and his wife had testified at a previous hearing of the Board. 18 Bass did not deny the above conversation but testified that he did not make any refer- ence to the Union . Both Bass and Hall testified , in substance , that oilers were generally utility men and that it had been part of their duties to sweep out from under the frames prior to the date of the above conversation . Dunsford also testified that it was the oilers' job to sweep under the frames . Hall and Bass further testified that frame operators also were required to do such sweeping once each week . Both Mize and Jacobs testified that it was not part of the oilers' job to sweep under the frames and that such sweeping was per- formed exclusively by the frame operators . B. Spradlin , overseer on the third shift from December 1945 until about March 1940 , and Duncan both testified that oilers were not required to sweep under frames . The undersigned believes and finds that sweeping under frames was not part of an oiler's duties prior to July 18, 1945. 10 Dunsford, in effect, denied the substance of the above conversation . He testified that he told Jacobs that it was the oilers' job to sweep out from under the frames . Mozelle Jacobs testified that she was present during the conversation. Her version of the con- versation is substantially the same as her husband's. 20 Bass denied that he had any conversation with Jacobs concerning his union activities. CAROLINE MILLS, INC. 379 During that shift Jacobs, at Bass' request, helped for about 1 hour in they picker room. Toward the end of the shift, Bass ordered Jacobs to sweep under the frames that night, and every day thereafter. Jacobs replied that he would sweep under the frames every day if the other oilers were also required to do so 21 However, he did sweep under the frames that night as requested. Shortly after Jacobs reported for work on July 20, Bass ordered him to run the opening room Jacobs replied that he preferred to do his job as an oiler. Jacobs testified credibly that the following then took place : He said, "Well, you will do what I tell you if you stay around here." And I told him, I says, "It hurts me," or something like that. "It nearly kills me," I believe is the way I said it, "to work down there." He said, "Well, Jacobs. you can't expect any favors down here as long as you hold out and work for the Union here." ,And I told him, I says, "I would rather have my time and release than to go down and run the openers I didn't tell him I wanted my time and release I told him I would rather have my time and release than go down and run the openers " He turned and walked off three or four steps from me, and turned and called back to rue He said. "I will tell you what to do You and your wife go out there and tell them I said to pay you up and give you your release." 22 As directed by Bass, Jacobs got his wife and they then -went to Hall's office " Upon being asked by Hall the cause of the trouble, Jacobs replied that Bass had 21 Other than the testimony of Bass, llall and Dunsford to the effect that it was part of the oileis' duties to sweep out front under the frames, there is no evidence in the case that the oilers oh the other two shifts did in fact do so, either befoic of after July 19. Jacobs testified that, as an oiler, he had never swept under the frames prior to July 19, and the undersigned so finds "Bass denied that any reference was made to the Union or that Jacobs at any time complained that running the opening room affected his health Both Bass and Hall testified that Jacobs had operated the opening room on July 18 and that he had so worked on a number of occasions prior thereto without complaint. Jacobs testified and the undersigned finds, that lie had operated the opeuitig iooni for 1 night about 1 year prior to the above date, that lie thereafter told Bass that he did not want the job as the dust affected his health , and that lie had not operated the opening room from that time until his discharge Mize, who worked as an oiler as stated above, testified credibly that he was never asked to and never did operate the opening room Bass testified that Mize "sometimes" did operate the opening room Duncan testified that oilers were not required to operate the opening rooms as a part of their duties and that such opeiation was on a voluntary basis. As stated above, the respondent contends that oilers were used as general utility men Bass testified that Jacobs was so advised when transferred to oiling Jacobs denied this and the undersigned credits his denial. Spradlin testified that he was instructed to use oilcis as utility men when lie acted as oieiseer. However, he fnithei testified that he was not required to work in the picker room or operate the opening room when lie worked as an oiler Duncan also testified that working in the picker room was not part of an oiler's duties. The undersigned con- cludes and finds that oilers were not general utility men, in the sense that they were required to work in the picker room or operate the opening room as a part of their regular duties, The evidence shows that the opening room was operated by one person and that it was a "dusty job " The respondent adduced evidence to show that "stripping cards." which was part of an oiler's duties, involved more dust. It is to be noted, however, that operating the opening room was an 8-hour fob, whereas stripping cards required only a relatively short time. 23 Bass testified without contradiction that he also had sent Giady Watts to Hall's office for the same reason immediately prior to Jacob's refusal. Watts was not called as a witness at the hearing Both Weyman and Mozelle Jacobs testified that Watts was discharged on the same day There is no evidence in the case indicating that Watts was a member of the Union. 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sent them to get their "times" and releases As to the balance of the conversation, Hall testified as follows : I sent Pete Naylor, the shipping clerk, to get Johnny (Bass) and Johnny came into the office and Johnny told me that he had asked Mr. Jacobs twice to run the opener room, that lie did not have anybody to do it and I asked Mr. Jacobs if that was so and he said it was, he said he would rather have his time than go down there. I said, "Mr Jacobs, you have run the opener room before and you know you can run it You know that we have to have somebody down there to run the opener room or else the mill will shut down and we need you down there If you want to do the job clown there go down there and run it " He said that he world rather have his time I said, "If that is what you want that is what I will do " I turned to Mrs. Jacobs and asked her, I said, "Airs Jacobs, you are not quitting are you?" She didn't say anything. I said, "Your job is out there We need you on it." I said, "What are you going to don" And Jacobs said, "She is quitting too ... " So I wrote out both of their time and wrote. out the separation slip. I wrote on the time slip the reason why they were leaving and when lie got the separation lie said he was not quitting, he was fired I said. "You are not fired, we have a job for you if you want to niu it It is yours to run " He said he was fired and that was all " The undersigned believes and finds that Hall testified credibly as to the above conversation with one exception, namely, the undersigned does not believe that Jacobs said that his wife was quitting The latter part of the conversation, as above, shows that Jacobs felt that he and his wife had been fired, and lie so advised Hall. Accordingly, the undersigned finds that Jacobs merely indicated that his wife also wanted her "release Conclusions as to the dischai ge of Weyniau and Mozelle Jacobs The respondent contends that Wey man Jacobs quit bis job a ud that lie was not discharged. Further, the respondent contends that oilers were general utility men and, accordingly, that it was part of Jacobs' duties to operate the opening room when requested The undersigned finds no merit in these contentions Jacobs was openly active on behalf of the Union He was a committeeman of the Union, testified as a witness for the Board at the hearings in Februniy and June, 1945, and acted as an observer for the Union at the election in April, 19-15. As found above in the discussion of Mize's discharge, Bass told Mize early in January 1915, that Jacobs would be discharged because he was an adheient of the Union That the respondent had a determined policy to rid itself of employees who were members of the Union is clearly shown by the conveisation between Hall, Dunsford and Duncan on about July 15, 1945 This policy was to make the 24 Jacobs denied that Hall requested him to operate the opening room He testified that he told Hall when his wife was asked if she wanted her release, "Yes. Mr Bass said for her to get her'n too " Mozelle Jacobs, however, testified that her husband said, "Yes, she wants hers." Jacobs testified fuither that Bass was present during part of the conversa- tion ; and that Hall stated that he knew Bass had fired them Otherwise the testimony of Weyman and Mozelle Jacobs (lid not difl'er materially fiom Hall's version of the conversa- tion. Both Weyman and Mozelle Jacobs impressed the undersigned as honest and sincere in their testimony. However, they obviously were not educated persons In view- of the apparent conflicts in their own testimony as to this conversation and with the tacts con- cerning the discharges, the undersigned feels that Hall's version of the conversation is the mote reliable.' The notice of separation given Jacobs states as a reason for termination of employment , "Was told by foreman to run opener room job and Jacobs told him he would rather have his time and release, which was given to him." The one given Mozelle Jacobs reads, "Quit-when husband left the employ of the Company." CAROLINE MILLS, INC. 381 work of such employees sufficiently unpleasant and hard so that they would quit, but not to discharge them The evidence conclusively shows that the respondent applied its policy to Jacobs Following the hearing in June, bass assigned Jacobs to work in the picker room for an hour or two each night Jacobs did not complain about this extra work and Bass then gave him the assignment of sweeping out from under the frames each night Jacobs complained about this assignment but agreed to do the sweeping if it was also performed by the other oilers He swept but from under the frames for the first time on July 19 The next day he was ordered by Bass to operate the opening room and Jacobs refused Since Watts was also discharged by Bass for refusing to run the opening room, it would seem that Jacobs' discharge was not discriminatory, keeping in mind that the Board failed to offer any proof as to whether or riot Watts was a mem- ber of the Union. However, the undersigned has found that Jacobs told Bass about 1 year prior to his discharge that running the opening room affected his health, and that he made reference to this fact in his conversation with Bass when ordered by him to operate it on July 20. The question then presents itself as to whether the respondent's anti-union policy and Jacobs' claims of ill effects on his health are sufficient to override an act of the respondent which otherwise was not discriminatory. The undersigned believes that they are. The respondent was looking for an excuse to fire Jacobs because of his union activities and seized upon this opportunity, knowing that he in all probability would refuse to operate the opening room because of ill effects on his health. The request was therefore discriminatory since Bass' underlying purpose was to get rid of Jacobs on account of the latter's union activities In the undersigned's opinion, the -facts in the case clearly constitute a con- structive discharge. The respondent's contention that Jacobs quit is merely a subterfuge or a technicality of words whereby respondent seeks protection from its discriminatory acts To hold with the respondent in such a case would be to defeat the intent and pun poses of the Act. Moreover, 'Jacobs, at the time of discharge, stated that he wished to work at his regular duties and protested that he and his wife were not quitting but were being fired. Accordingly, the undersigned finds that Weyman Jacobs was discharged by the respondent on July 20, 1945, because of his membership in and activities on behalf of the Union. The undersigned further finds that Bass' statements to Jacobs concerning the Union constitute interference, restraint, and coercion. In the undersigned's opinion, the Board tailed to prove that Mozelle Jacobs was discrimunatorily discharged. It is true that in all probability she would not have lest* her employment but for the respondent's discrimination against her husband Nevertheless, Weyman Jacobs replied in the affirmative to Hall's query as to whether or not she wanted her release. Further, the undersigned has found above that Hall told her that he wanted her to continue working. Under the circumstances, it could not be held that the respondent discriminatorily discharged her, and the undersigned so finds. 4 The alleged discriminatory discharge of Joe Carwell Carvell was employed by the respondent about July, 1944, as a frame operator 119 was hired by Bass and worked on the second shift. He was working on that shift when he left the employ of the respondent, but he had worked on the third shift under Duncan for about G months during an undisclosed period of time Cat-well was an active member of the Union He openly wore a union button in'tbe plant and testified as a witness for the Board at one of the previous hearings As related above, Carwell's name wac mentioned by Hall and Dunsford during 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conversations with Duncan in July 1945 Duncan further testified and the under- signed finds that he had orders from Dunsford to transfer Carwell to Lass' shift so that the latter could discharge him .3 About September, 1945, Carwell developed boils on his hands which incapacitated hun for work. He told Bass about his condition and the latter agreed that he should not work until his condition got better. He stayed away from work for several weeks and, upon returning, worked for several days" His boils again caused him trouble and, without advising Bass, he remained away fiom the plant for several more weeks At the end of that time he again returned to the plant for work, but was told by Bass that his job on the second shift had been filled. Bass, however, offered him work on the third shift. Carwell requested a release but was told by Bass that he did not need one. He did not return, to work for the respondent 27 Conclusions as to the alleged discharge of Carwell The evidence clearly indicates that the respondent eventually intended to dis- charge Carwell because of his union activities. This is shown by Dunsford's and Hall's statements to Duncan during July, when Carwell was specifically men- tioned as a member of the Union. However, it appears that skilled labor was scarce in Carrollton in the latter part of 1945, as evidenced by the fact that Mize was re-hired in December. The undersigned has found above that Bass offered Carwell work on the third shift. The respondent's need of his services as a frame operator at that time apparently outweighed the fact that he was an active member of the Union. Certainly, the respondent could not be held accountable for the fact that it filled Carwell's position on the second shift after his 'extended lay-off, especially since it appeals that he had been lax in keeping the respondent advised as to the possible date when he would return to work. Accordingly, the undersigned believes and finds that Joe Carwell wbs not discharged on October,12, 1945, because of his membership in or activities on behalf of the Union. 1V THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in con- nection 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 such of them as have been found to be unfair labor prac- tices 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 and take certain affirmative action designed to effectuate the policies of the Act. 23 Dunsford , in effect , denied issuing such orders to Duncan . The evidence indicates that Duncan was reluctant to discharge members of the Union and disobeyed orders in this re- spect He testified that he transferred Carwell to Bass' shift at Carwell's request and not because of Dunsford's orders. Carwell testified and the undersigned finds that Duncan requested him to work on the second shift under Bass 20 Carwell's last day of work was on October 12, 1945 27 Bass testified, in substance, to the above facts and the undersigned credits his testi- mony in this connection Carwell was not an intelligent witness and his testimony was vague and indefinite. He did not deny that he was offered work on the third shift, but testi- fied that he did not "recollect" that Bass had made such offer. Otherwise, his testimony did not differ in any material respects fiom that of Bass. CAROLINE MILLS, INC. 383 It has been found that the respondent discriminated in regard to the hire and tenure of employment of James B. Mize and Weynian Jacobs. It will therefore be recommended that the respondent offer them immediate and full reinstate- intent to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges.'' It will be further recommended that the respondent niak,,them whole for any loss of pay that they may have suffered by season of the respondent's discrimination against them by payment to them of sums of money equal to the amounts they would have earned as wages from the dates of the discriminatory discharges to the dates of the respondent's offers of reinstatement, less their net earnngs,2' during said periods. It has also been found that the respondent, by the acts and statements of Duncan and Bass, has interfered with, restrained and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act The Board's decisions in the piioi proceedings heretofore referred to and the findings herein, establish the fact that the respondent has a fixed policy to interfere with the rights of its employees Under the Act. Key officials of the respondent were active in formulating and putting into practice this policy of interference The record of extensive violations of the Act, both in the past and at the present time, indicates that steps must be taken to insure that there be no recurrence of unfair labor practices in the future. Accordingly, in order to safeguard for the respondent's employees the guarantees of Section 7 of the Act and otherwise effectuate the policies of the Act, it will be recommended that the respondent be ordered to cease and desist frolic in any manner interfering with the rights guarantee(] in Section 7 of the Act Since the undersigned has found that the respondent did not discrimimaoidy discharge Joe Carivell and Mozelle Jacobs, it will be recommended that the complaint be dismissed in this respect Upon the basis of the foregoing findings of fact and the entire record in the case. the undersigned makes the following . CONCLUSIO\S OF L,rw 1 Textile Woikers Union of America, C 1 O, is a labor oiganization within the meaning of Section 2 (5) of the Act 2. By discriminating in regard to the hit] e and tenure of employment of J B Mize and Weyman Jacobs, thereby discouraging membership in the Union, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act 3 By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section S (1) of the Act 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 ((i) and (7) of the Act 25In the case of Mize, it appears that he works for the respondent at the present time as a part-time employee It is not clear from the record if the tespondent on December 10, 1945, offered him full reinstatement as iecommended above. 29 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company, 8 N. L R B 440 Monies received for work performed upon Federal , State, county, municipal, or other work-relief projects shall be considered as earn- ings. See Republic Steel Corporation v N. L R 12 , 311 U S 7. 717734-47-vol 71 26 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5 The respondent has not engaged in unfair labor practices by discrimination in regard to the hire and tenure of employment of Joe Carwell and Mozelle Jacobs. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law the undersigned recommends that the respondent, Caroline Mills, Inc , Carrollton, Georgia, its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in the Textile Workers Union of America, C I. 0., or any other labor organization of its employees, by laying off, discharg- ing, or refusing to reinstate any of its employees and from refusing to employ any member of that union, or in any other manner discriminating in regard to their hire and tenure of employment or any teim or condition of employment; (b) In any other, manner interfering with, restraining, or coercing its em- ployees in the exercise of their right to self-organization, to form labor organi- zations, 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 bar- gaining or other mutual aid or protection as guaranteed in Section 7 of the Act 2. Take the following afflimative action which the undersigned finds will effectuate the policies of the Act : (a) Offer to J B. Mize and Weyman Jacobs immediate and lull reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges ; (b) Make whole J. B Mize and Weyman Jacobs for any loss of pay they may have suffered by reason of the respondent's discrimination against them by payment to them of sums of money equal to the amounts they would normally have earned as wages from the dates of the discrimination to the dates of the respondent's offers of reinstatement less their net earnings L0 (luring said periods; (c) Post immediately at its plant at Carrollton, Georgia, copies of the notice attached to the Intermediate Report herein mar ked "Appendix A " Copies of said notice, to be furnished by the Regional Director for the Tenth Region, after being signed by the respondent's representative, shall be posted by the respondent immediately upon the 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, defaced, of covered by any other material ; (d) Notify the Regional Director for the Tenth Region in witting, within ten (10) days from the (late of the receipt of this Intermediate Repot t, what steps the respondent has taken to comply therewith It is further recommended that unless on or before ten (10) clays from the receipt of this Intermediate Report, the respondent notifies said Regional Di- rector in writing that it will comply with the foregoing recbniniendations, the National Labor Relations Board issue an oider iequuing the respondent to cake the action aforesaid., It is further recommended that the allegations of the complaint that the respondent discriminatorily discharged ,Joe Carwell and Mozelle Jacobs be dis- missed. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective November 27, 1045, any party or counsel for the Board may, within fifteen (15) days from the 30 See footnote 29, sun?a CAROLINE MILLS, INC. 385 date of the entry of the cider transferring the case to the Board , pursuant to Section 32 of Article II of said Rules and Regulations , tile with the Board, Rochambeau Building, Washington 25, D. C., an original and four copies of a statement in writing, setting forth such exceptions to the Intermediate Re- port or to any other part of the record or proceeding ( including rulings upon all motions or objections ) as he relies upon , together with the original and four copies of a brief in support thereof Immediately upon the filing of such state- ment of exceptions and/or brief , the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director . As further provided in said Section 33, 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 the order transferring the case to the Board. Any party desiring to submit a brief in support of the Intermediate Report shall do so within fifteen ( 15) days from the date of the entry of the order transferring the case to the Board , by filing with the Board an original and four copies thereof , and by immediately serving a copy thereof upon each of the other parties and the Regional Director. Joan H. EADIE, Trial Exananer. Dated July 15, 1946. APPENDIX A NovicE To Al L EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hei ebb notify our employees that. We will not in any manner interfere, with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organizations, to join or assist Textile Workers Union of America, C I 0., or any other labor organization, to bargain collectively through representa- tives of then- own choosing, and to engage in concerted activities for the purpose of collective baigamrng or other mutual and or protection We will offer to the employees named below inimediate and full rein- statement to them. former or substantially equivalent positions without prejudice to any seniority or other iIghts and piivileges previously enjoyed, and make them ww hole for any loss of pay suffered as a result of the dis- crimination J. B. Mise Weyman Jacobs All our employees are free to become or remain members of the above-named union or any other labor organization We will not discinminate in regaid to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity oil behalf of any such labor organization. CAROLINE, MILLS, INC, Dated ---------------------------------- By ---------------------------- (Representative) (Title) NOTE-Any of the above-named employees piesently serving in tl.e 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.