Colonial Shirt Corp.

COLONIAL SHIRT CORPORATION 711 with, restraining, and coercing its employees in the excercise of the rights guaranteed under the Act. Upon the basis of the foregoing findings of fact, and upon the entire record, the undersigned makes the following : CONCLUSIONS OF LAw 1. International Brotherhood of Electrical Workers, Local Union 1676, affiliated with the American Federation of Labor, is a labor organization within the mean- ing of Section 2 (5) of the Act. 2. All production and maintenance employees, excluding office and clerical employees, guards, professional and supervisory employees, as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. All office and clerical employees, excluding production and maintenance employees, guards, professional and supervisory employees, as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4. International Brotherhood of Electrical Workers, Local Union 1676, affili- ated with the American Federation of Labor, was, on December 6, 1950, and has since been, at all times material thereafter, the exclusive representative of all the employees in each of the aforesaid units for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 5. By refusing on or about January 17, 1951, and at all times thereafter, in- cluding on or about March 1, 1951, and on or about March 29, 1951, to bargain collectively with International Brotherhood of Electrical Workers,- Local Union 1676, affiliated with the American Federation of Labor, as the exclusive repre- sentative of the employees in each of the aforesaid units, and by unilaterally granting a wage increase to said employees on or about March 1, 1951, without prior consultation with the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (]) of the Act. 7. The allegation that the Respondent discriminated in regard to the hire and tenure and terms and conditions of employment of R. D. Cooper, J. E. Maner, Elmo Smith, and Carlton Spalding, to discourage membership in a labor organ- ization, in violation of Section 8 (a) (3), has not been sustained by the pre- ponderance of the reliable, probative, and substantial evidence. 8. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] COLONIAL SHIRT CORPORATION and BURLEY HUGHES . Case No. 10- CA-928. October 10, 1951 Decision and Order On May 15, 1951, Trial Examiner Bertram G. Eadie issued his Intermediate Report in the above-entitled proceeding, finding that 96 NLRB No. 104. 712 DECISIONS OF -NATIONAL LABOR RELATIONS. BOARD the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom, and take certain affirmative action,, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices, and recommended that those allegations of the com- plaint be dismissed. Thereafter, the General Counsel filed exceptions and a brief to the Intermediate Report and the Respondent filed exceptions. , The Board 1 has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed.' The rulings are affirmed. The Board has considered the Intermediate Report,,' the exceptions and brief, and the entire record in the case, and adopts the findings, conclusions, and recommendations of the Trial Examiner with the following additions and modifications. 1. The Trial Examiner found, and we agree, that the Respondent did not discriminate against J. T. Sissom, Kenneth Parker, Billy Joe Barrett, William Farless, and Vernon, Spry within the meaning of Section 8 (a) (3) and 8 (a) (1) of the Act. We also agree with the Trial Examiner's findings that the Respondent did not discriminate against Burley Hughes within the meaning of Section 8 (a) (4) and 8 (a) (1) of the Act. 2. We agree with the Trial, Examiner's findings that Respondent violated Section 8 (a) (1) of the Act, subsequent to the settlement agreement, through the incidents recounted in section III C 2 of the Intermediate Report. The Respondent contends in its exceptions that the Trial Examiner erred in crediting certain testimony of J. T. 'Sissom despite the fact that in another instance he discredited Sissom's -testimony. A Trial Examiner had the advantage of seeing and hear- 1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [ Chairman Herzog and Members Houston and Reynolds]. 2 The Respondent excepts to the Trial Examiner's denial of its motion to strike certain paragraphs of the complaint on the ground that such portions of the complaint include allegations of unfair labor practices not set out in the charge. Objection was also made to the introduction of evidence relating to allegations in the complaint (anal the amended complaint ) which were not included in the charge . The charge, filed on December 29, 1949, and amended June 13, 1950, contained general allegations that the Respondent had violated Section 8 (a) (1). The rule is well settled that a charge is not required to have the par- ticularity of a pleading. N. L. R. B. v. Indiana & Michigan Electric Company, 318 U. S. 9, 18; Consumers Power Co. v. N. L. R. B., 113 F. 2d 38, 42-43 (C. A. 6) ; N. L. R B. v Westez Boot A Shoe Co., 190 F. 2d 12, 13-14 (C. A. 5) ; Kansas Milling Co . v. N. L. R. B., 185 F. 2d 413, 415 (C. A. 10). 5 The Intermediate Report contains minor typographical errors which do not affect our ultimate findings. The employee 's name, William Farless, misspelled in section III B 5 -of the Intermediate Report as Fearless, is corrected. Employee Treva Ferrell's name, misspelled Ferrel in section III C 2 is corrected . The name Kenneth Parkes, appearing in paragraph 2 (c) in the section of the Intermediate Report entitled "Recommendations," Is corrected to read Kenneth Parker. COLONIAL SHIRT CORPORATION 713 ing the witnesses and we attach great weight to his credibility findings. We do not overrule them except where the preponderance of all the relevant evidence convinces us that he was incorrect. No such con- clusion is warranted in this case .4 In accordance with usual practice, we therefore adopt it. 3. To, the extent that the Intermediate Report suggests that the Respondent's rule or regulation prohibiting the distribution of litera- ture is a violation of Section 8 (a) (1) because it applied to nonwork- ing time as well as working time, it does not reflect the Board's views. We have held that an employer can lawfully prevent the distribution of literature in the plant, even during the employees' nonworking time, in the interest of keeping the plant clean and orderly, at least where it is not evident that such activity cannot readily be conducted away from the employer's premises 5 We have drawn a distinction between a permissible nondiscriminatory ban on the distribution of literature and a ban on solicitation. We have held that the latter prohibition, absent special circumstances, may not be imposed during nonworking time, because it is deemed to be an unreasonable impediment to self- organization5 The Trial Examiner properly held, however, that the Respondent's rule prohibiting the distribution of literature on its premises, as ap- plied by Respondent to proscribe union solicitation during the em- ployees' nonworking time, is violative of Section 8 (a) (1) of the Act. The discriminatory application of the rule is evidenced by Foreman Pat Bollinger's warnings to employee Treva Ferrell to cease union solicitation during lunch hour. We not only rely on this incident, found by the Trial Examiner to have occurred in August 1949 subse- quent to the settlement agreement, but also on similar warnings which, the Trial Examiner found, occurred before the settlement agreement. Warnings not to talk union during lunch hour were given by Sol Berger, the Respondent's secretary-treasurer' and part owner, to employee Raybern Roosevelt Simmons, and Berger told employees Treva Ferrell and Lydia McCullough not to carry union cards on the premises. Berger admits in his testimony that he did prohibit union activity and solicitation on the premises during this period. 4. We do not agree with the Trial Examiner's conclusion that unfair labor practices committee by the Respondent prior to a set- tlement agreement should be considered as background evidence only, and not as separate violations of the Act. This conclusion miscon- strues our decision in Electronics Equipnwnt Co., Inc., 94 NLRB 62. It has been the policy of the Board to respect settlement 4 Standard Dry Wall Products, Inc., 91 NLRB 544; N. L. R. B. v. Universal Camera Corp., 190 F . 2d 429 (C A. 2). Monolith Portland Cement Co., 94 NLRB 1358. Peyton Packing Corporation, Inc., 49 NLRB 828; Republic Aviation Corp . v. N. L. R. B., 324 U. S. 793. 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreements where, as in, the Electronic case, no violations have oc- curred subsequent to the agreement. But such an agreement has not been considered as a bar to examination of prior conduct in further proceedings "where subsequent events have demonstrated that efforts at adjustment have failed to accomplish their purpose, or where there has been a subsequent unfair labor practice." Wallace Corpora- tion v. N. L. R. B., 323 U. S. 248, 254.7 , - We therefore find, in addition to the acts found by the Trial Ex- aminer in section III C 1 of the Intermediate Report to be violative of Section 8 (a) (1),,that the Respondent committed the following unfair labor practices in violation of Section 8 (a) (1) of the Act which are not refuted in the record : (a) Sol Berger's speech, made in the basement of the plant to the employees on August 24, 1949, in which he threatened to close the plant if it were unionized. (b) Speeches of townsmen J. F. Adams, a retired doctor, Doran F. Williams, a justice of the peace, and Matt F. Roach, a county judge, made in Berger's presence at a plant meeting arranged by Berger, all of whom stated that Berger would close the plant of the Union came in. In view of the character.of the speeches, it was in- cumbent on Berger to disavow these statements instead of lending weight to them by his silence. (c) Berger's threats to discharge employees for union activity, as evidenced by Treva Ferrell's testimony of Berger's conversations with her and employee Eunice Duggin's testimony of his interroga- tion and veiled threat to her. (d) Berger's interrogation of Mrs. W. N. Robinson and threats made to her to close the plant if the Union were organized. (e) The Respondent's supervisors' interrogation of employees as evidenced by the testimony of Vera Juanita Bell, and William B. Bell regarding Forelady Jennie Newby's questioning them about union activity and William B. Bell's testimony concerning his inter- rogation by Forelady Maidee Fann. 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 orders that the Colonial Shirt Corporation, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Interrogating employees concerning their union membership and activities. 7 See also N. L. R. B. v. Lake Superior Lumber Co., 167 F. 2d 147, 150 (C. A. 6) ; Olin Industries, Inc., 86 NLRB 203, 232-233 (order enforced 28 LRRM 2474 (C. A. 5) decided August 7,1951); Victor Chemical Works, 93 NLRB 1012. COLONIAL SHIRT CORPORATION 715 (b) Promising or giving benefits to employees for the purpose of inducing them to refrain from membership in and activities on behalf of any union. (c) Threatening to close its plant if employees organize a union. (d) Threatening its employees with loss of employment because of union activity. (e) Prohibiting union solicitation on the Respondent's premises during the employees' nonworking time. (f) In any other manner interfering with, restraining, or coercing its employees in the right to self-organization, to form labor organiza- tions, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in col- lective bargaining or other mutual aid or protection, or to refrain from any or all of such activities except to the extent that such right may be affected by an' agreement requiring membership as a condition of employment, as authorized in Section 8 (a) (3) of the Act as guaranteed in Section 7 thereof. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : - (a) Amend, the rule or regulation relating to the circulation of literature on company premises to recite that it does not prohibit em- ployees from engaging in union solicitation or concerted activities on company proptrty during the employees' nonworking time. (b) Post at its plant at Woodbury, Tennessee, copies of the notice attached to this Decision and Order and marked "Appendix A." 8 Copies of this notice, to be furnished by the Regional Director for the Tenth Region, shall, after being signed by the Respondent's repre- sentative, be posted by the Respondent immediately upon receipt thereof and maintained by it for 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. (c) Notify the Regional Director for the Tenth Region, in writing, within ten (10) days from the date of this Order, what steps the Re- spondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges that the Respondent discriminated against J. T. Sissom, Ken- neth Parker, Billy Joe Barrett, William Farless, and Vernon Spry in violation of Section 8 (a) (3) of the Act and with respect to Burley Hughes in violation of Section 8 (a) (4) of the Act. 8 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted before the words, "A Decision and Order," the words, "A Decree of the United States Court of Appeals Enforcing." 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, as amended, we hereby notify our employees that : WE WILL NOT interrogate our employees as to their union mem- bership, activities, or sympathies. WE WILL NOT promise or give benefits to our employees for the purpose of inducing them to renounce their membership in, and activities on behalf of, any labor organization. WE WILL NOT threaten our employees with loss of employment because of union activity in our plant. WE 'WILL NOT threaten to close our plant if any labor organiza- tion is chosen as the bargaining representative of our employees. WE HEREBY amend our rule or regulation relating to the cir- -culation of literature on company premises to provide that it does not prohibit employees from union solicitation or concerted activi- ties on company property during their nonworking time. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requir- ing membership in a labor organization as a condition of employ- ment as authorized in Section 8 (a) (3) of the Act. All our employees are free to become, remain, or to refrain from becoming or remaining members of any labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. COLONIAL SHIRT CORPORATION, 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. COLONIAL SHIRT CORPORATION Intermediate Report STATEMENT OF THE CASE 717 Upon an amended charge filed July 13, 1950,1 by Burley Hughes, the General Counsel of the National Labor Relations Board, herein referred to as the General Counsel, and the National Labor Relations Board, herein referred to as the Board, by the Regional Director for the Tenth Region (Atlanta, Georgia), issued a complaint against Colonial Shirt Corporation, herein referred to as the Re- spondent. Copies'of the charges and of the complaint were duly served on the Respondent. The complaint alleged 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, hereinafter referred to as the Act. With respect to the unfair labor practices, the complaint alleges that the Respondent (a) on or about November 28, 1949, discharged J. T. Sissom, Kenneth Parker, Billy Joe Barrett, William Farless, and Vernon Spry and thereafter failed and refused to reinstate them because of their membership in and activities on behalf of the Union and because they engaged in concerted activities with other employees for the purpose of collective bargaining or other mutual aid or protection; (b) on or about December 29, 1949, and thereafter, refused to hire Burley Hughes because he filed charges and gave testimony under the Act; (c) interrogated its employees concerning union membership, activities, and sympa- thies; (d) threatened and warned its employees to refrain from assisting, becom- ing members of, or remaining members of, the Union; (e) requested and in- structed its supervisors to interrogate its employees concerning their membership in and activities on behalf of the Union and report to management any informa- ton obtained; (f) made the threat to its employees that it would close the Wood- bury plant before recognizing the Union or allowing its employees to be organized-; (g) warned its employees to cease all activity on behalf of the Union during lunch time or any other nonworking time while on company property; (h) per- mitted and encouraged antiunion activity on its premises while prohibiting pro- union activity on its premises; (i) urged its employees to use physical force against the Union's organizers and chase them out of town ; (j) moved cloth away from the Woodbury plant in an effort to coerce and intimidate its employees by making it appear that the Union would cause the Woodbury plant to be closed ; and (k) intimidated and coerced its employees by stating that the employees discharged would be back at work if they had not filed charges against the Respondent. The Respondent failed to file an answer. Pursuant to notice, a hearing was scheduled and held on February 19, 20, 21, 23, and 26, 1951, at Woodbury, Tennessee, before the undersigned Bertram G. Eadie, a Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel and the Respondent were represented at the hearing. All • parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. Motions were made during the hearing by General Counsel to amend paragraph 12 of the complaint by "adding the name of Foreman P. C. Bolinger, in or around February 1951," and paragraph 9 thereof by "adding after the words Sol Berger the date December 1950." The General Counsel also moved to amend the complaint as to dates, etc., to conform to the evidence. These motions were granted. General Counsel moved for judgment on the pleadings on the grounds that Respondent had not filed an answer. The motion was denied with 'Original charge filed December 29, 1949. 718- DECISIONS- OF NATIONAL LABOR RELATIONS BOARD -the consent of General Counsel that Respondent be permitted to orally plead a general denial as its answer, excepting however therefrom that the jurisdictional -allegations were to be considered admitted by the Respondent. Respondent moved that all paragraphs in the complaint, starting with the ,paragraph numbered 8 on page 2 thereof to the conclusion of the complaint, be -stricken on the grounds "that they deal with matters which are in no wise related to the specific matters contained in the charge." The motion was denied by the -Trial Examiner. Both counsel argued orally at the close of the whole case. Counsel for Re- -spondent has submitted a brief to the Trial Examiner. Upon the entire record in the case, from his observation of the witnesses, an inspection of the plant of Respondent by him with the consent of all parties,' rand the exhibits in evidence, the Trial Examiner makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE, RESPONDENT The Respondent is and has been at all times material herein, a corporation -duly organized under, and existing by virtue of, the laws of the State of New York, having its principal office and place of business at Woodbury, Tennessee, 'where it is engaged in the business of manufacturing, distributing, and selling cotton shirts. During the past calendar year, which period is representative of all times material herein, it purchased raw materials, consisting principally of cotton piece goods, linings, buttons, and thread, valued in excess of $500,000, of which approximately 90 percent in value was purchased outside the State of Tennessee and shipped in interstate commerce to its plant at Woodbury, Ten- nessee. During the same period of time the Respondent manufactured at its said plant, finished products, consisting of men's cotton shirts, valued in excess ,of $500,000, of which approximately 75 percent in value was sold and shipped in interstate commerce to customers outside the State of Tennessee. The Board has previously taken jurisdiction of the Respondent in unfair labor practices and the Respondent has stipulated herein that it is engaged in com- merce within the meaning of the Act. . The Trial Examiner finds that Respondent is engaged in commerce within the meaning of the Act. If. THE LABOR ORGANIZATION United Construction Workers, affiliated with United Mine Workers of America, is a labor organization which admits to membership employees of the Respond-- ent.2 III. THE UNFAIR LABOR PRACTICES A. Background; sequence of events The Respondent is a manufacturer of shirts employing about 300 in help, a great majority of whom are females. It rents the entire building in which its plant is located from the county court of Cannon County, Tennessee, and while the building was originally proposed to be erected as a school, the plans in the 2 In and about August and September 1949, Respondent was charged by individuals with violations of the Act. At the time and prior thereto, the United Mine Workers of America was conducting a campaign to unionize the Respondent's employees. A settlement agree- ment was entered into by the Respondent and the individuals who had filed the charges, and was approved by the Regional Director on the 10th day of October 1949 (10-CA-813 and 10-CA-831). COLONIAL SHIRT CORPORATION 719 ,course of its erection Were changed and the structure completed suitable for its use as a manufacturing plant in accordance' with the requirements of Re- spondent. Prior to the commencement of this proceeding the Respondent had been charged with unfair labor practices and had entered into a settlement agree- ment in Cases Nos. 10-CA-813 and 10-CA-831. It had complied with the terms thereof by reemploying Raybern Simmons and Treva Ferrell, and had 'duly posted at its plant the required notice to employees. The settlement agree- ment was executed September 22, 1949, and approved October 10, 1949. On November 28, 1949, at 3 p. m., while the buck pressing crew, consisting of Foreman Burley Hughes and employees Sissom, Farless, Parker, Barrett, and 'Spry, was engaged at its machines, Sol Berger, herein referred to as Berger, the secretary-treasurer, part owner, and plant manager of Respondent, ap- proached Hughes. He was carrying several shirts over his arm which had been damaged, as he assumed, by the crew of the buck pressing machines. He advised Hughes "From now on every second that comes through these machines you buck boys are going to pay for them." Immediately as Berger broke off the conversation, Hughes went to each mem- ber of his crew and repeated to them what Berger had told him. Each stated that he would not pay for any seconds. Hughes then told the crew "We got to go to the office and straighten this out, for he just now left here and told me we would have to pay for them." Upon Hughes' instructions, the employees turned off their machines and removed the shirts which were being processed. Hughes and his crew went to Berger's office, arriving there a few minutes after 3 p. m. Hughes told Berger, "Those boys said they don't aim to pay for those seconds, and the fact of the business, we can't pay for them. We got to have more money or a better job if we even tried to pay for the seconds." Berger asked "What did you leave the machines for? They got to be going. We could straighten this out after 4: 00 o'clock." Hughes insisted "that the matter be settled at once and that they would not wait until 4 o'clock." Hughes told Berger that "we couldn't work and pay for the seconds." Berger asked the employees if any of them wanted to go back to work. Concerning the conversation between Berger and the members of the buck presser crew, Billy Joe Barrett testified credibly as follows : Q. Did Mr. Berger at that time ask the employees to go back to work? A. Yes, sir. A. Well, he told us to come back after 4: 00 o'clock, that it wasn't time to discuss it during working hours. Q: How many times did he ask the employees to go back to work before they left his office? A. I would say twice. Q. Twice? A. Or three times. Q. More than once, in any event? A. Yeah. Q. After you left his office and you went out front, what-was there any further discussion with reference to going back to work, by Mr. Berger? A. Well, he asked us to go back to work. Q. And did anybody make any effort to go back to work? A. No. Q. Did you make any effort to go back to work? A. No. 720 DECISIONS OF 7NATI6I1TAL' LABOR RELATIONS BOARD Q. Did you see Sissom or Spry make any efforts to go back to work? A. No, sir. Q. Were you present throughout this entire conversation? A. Yes, sir. Q. Do you recall who punched the time cards? A. I punched my own. Q. Do you know whether the rest of them punched their own or not? A. Yes, sir. Q. Did Mr. Berger make any statement with reference either to going to work or punching out, or words to that effect, that you recall? A. Well, if they didn't go to work they had to punch out. Q. And after you had punched out what did Mr. Berger do with reference to getting the buck machines running, if anything? A. He told Lloyd Campbell to take his crew down there. Q. After that occurred did he make any other statements about going back to work that you know? , A. He asked us to go back to work. Q. Did Kenneth Parker go back into the plant after he punched out? A. Yes, sir. Well he started back before he punched out. * * * * * * * Q. When he came back up,,did he tell you what Mr. Berger said to him? A. He said he offered him-wanted him to go back to work, and he wouldn't go back. Q. Did he tell you whether or not he asked him on more than one occasion to go back to work? A. I saw him talking to him. He stayed there long enough to beg him to go back to work. Q. Was anything said by anybody about the first guy that goes back to work until we get this settled has to give the others $5.00? * * * * * * A. Yes, sir. I said that, the first one went back to work had to give the other ones $5.00.' Separation notices, in it-the words "Voluntarily Quit" thereon, were'then handed to each of the crew and they were asked to sign them ; which they refused to do. The next morning the members of the crew returned to the office and demanded and received their checks. The separation notices were again handed to them, with the phrase "Voluntarily Quit" upon them but they were not asked to sign them. The employees of Respondent were paid at a rate of 40 cents per hour pro- vided their production did not exceed a fixed minimum ; if however, their production exceeded the minimum, their pay was enhanced by a fixed rate per dozen for the production over the minimum. Hughes however received 50 cents per hour minimum as the foreman. The crew of the buck presses worked as a unit and their production was pooled so that, if the minimum were reached, all members of the crew were credited individually with any overproduction. For each (second) produced 1 dozen in overproduction was charged to the crew. The buck pressing crew was rated to produce a minimum of 350 dozen a day. Each employee received 8 cents per dozen for the overproduction of the crew. 3 The testimony of Barrett has been credited by the Trial Examiner ; the portions of the testimony of the several witnesses which may be or are in conflict with Barrett's recital of the facts are discredited. COLONIAL SHIRT CORPORATION 721 Typewritten rules of Respondent were posted on the bulletin board at the plant ; these rules were posted prior to the settlement agreement and remained on, the Respondent 's. bulletin board up until the time of the hearing. B. The facts pertaining to the alleged discriminatory discharges and refusal to hire 1. Burley Hughes Hughes was and had been a foreman for some time prior to the November 28 incident when he and his crew turned off their machines during working hours and proceeded to the office of Respondent' s manager. He had previously dis- charged a member of the crew of the buck machines and had assigned work and machines to the members of the crew, and had assumed full responsibility, direction, and supervision of their work. He also received an increase in the hourly wage when he had been promoted from the position of operator. As foreman he also operated his share of the machines under the same conditions as the other members of his crew. General Counsel in his closing statement at the hearing made the following statement. . . . The fact that Hughes was a supervisor when he was terminated pre- vents the Board from including Hughes in the Complaint as an (8) (a) (3), but that in no way jeopardizes Hughes' position as a discriminatee under Section 8 (a) (4) later on. .. . On November 28, 1949, at 3 p. in., Hughes and his crew shut off their machines and went to Berger's office. At about 3: 16 p. in. they checked out on the time clock. Berger asked them to return to their work both before and after they had checked out on the time clock. On November 29 Hughes and the crew members returned to the plant and received checks in full for their previous work. At that time they received severance notices on which was noted "Voluntarily Quit." On November 30 Hughes asked Berger why be fired him. • Berger answered that he did not know and said, "Those things just will happen." Shortly after Christmas 1949, Berger offered him a job as assistant mechanic, a job which he had previously filled. He refused the offer. On December 29, 1949, he filed the original charge herein with the Board. - In March 1950 Berger offered him a job as a night watchman but he refused it for the reason that he lived too far from the plant and he would have trouble with transportation. On March 25, 1950, he was employed by the Respondent and worked with the buck crew and thereafter in the pressing department until about December 1950 when he quit and rented a farm. About 3 weeks prior to the hearing (February 1951), he was again employed by Respondent as a week-end night watchman working about 24 hours per week. 2. J. T. Sissom On November 28, 1949, Sissom was one bf the crew working on the buck presses under the supervision of Hughes, as were the other alleged dischargees under consideration herein. As related above, he and the members of the crew went to Berger's office after shutting off their machines. Concerning his discharge and reemployment, Sissom was questioned and testified credibly as follows : Q. Didn't Mr. Berger tell you you would have to wait until payday to get your checks because you had quit? A. Yes, sir, I think he did. 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. And was that when Kenneth Parker started his argument about if he didn't have the money to pay for it? A. Well, I don't know as he started arguing then. We all told him we- thought when a guy got fired he was supposed to have his money then. Q. And Mr. Berger denied he had fired you? He said you had quit? A. He-Sure. He said we had quit. Q. And the next day you were given a separation notice, that you had quit? A. Yes, sir. * * * * * * * Q. And if as a condition of your working there you were to be charged with seconds, even though you caused the second, you weren't going to work? A. Of course not, because if I made as much as a dozen seconds a day that would take my pay check. * * * * * * * A. Well, we was all standing there, and he [Berger] said "Does any of you boys want to go back to work just like you was?" * * * * * * Q. Did you hear anybody make any statement they wasn't going back until the whole thing was settled? A. I believe Burley lid. Q. Burley said they weren't going back until the whole thing was settled? A. Said he wasn't. * * * * * * * Q. As a matter of fact, didn't you go back to work-When did you make application for a job back over there? A. I went two or three days after I got fired, when I found out Spry-Me and Farless went back together to ask for a job back after we found out Spry had been'back to work. Q. And at that time there was somebody else running the machines? A. Yes, sir. * * * * * * * Q. What did Mr. Berger say to you at that time? A. Well, he hired Farless. Me and Farless went back together, and he went back-he told us he would go back and see if he could find an opening for us, and he went back and found one opening, and he came back to the office and said he could take one of us back. Q. Farless had seniority over you? A. Mr. Berger said "I wouldn't make a penny's worth of difference-ofyou two boys,"- and he flipped a quarter. Q. Is that what he did? A. Yes, sir. Q. And you lost? A. Yes, sir. * * * * * * Q. M-hm. How did you happen to go back and apply for a job then? A. I didn't. Q. How did you happen to go over there? A. I went out and saw William Farless-he lives neighbor to me-and asked him if he thought that there was a chance of my getting back. Q. And shortly after you were rehired? A. Yes, sir. COLONIAL SHIRT CORPORATION 723. Q. Did- William tell you he thought they had found a place for you over there? A. Yes, sir ; told me that he laid off a boy. Q. On the occasion Farless wept back to work, was that just a day or two: after this November 28 occurrence? A. Two-three or four days. At the time of the hearing Sissom was employed by the Respondent. 3. Kenneth Parker Although all the other employees involved herein were rehired by the Re-- spondent• at various times, Parker never made application for reemployment since the incident of November 28, 1949. The General Counsel offered no proof that Parker had ever made•any application for reemployment by the Respondent. - The Trial Examiner finds that Parker never made an application for reem- ployment by Respondent after November 28,1949. 4. Billy Joe Barrett Concerning the incident on November 28, 1949, Barrett testified credibly as follows : Q. (By Mr. HARwoon :) Well, Billy, after all this was said and done and you punched out, before you left the plant how many different times had Mr. Berger tried to get you to go back to work? A. He tried to get us back to work before we punched out. Q. How many times did he ask you to go back to work? A. I don't know. More than one. Q. Did you make any move whatever to go back to work? A. No, sir. Barrett was reemployed by Respondent within several days after November 28 when he applied for work. He quit his job with Respondent on or about August 22, 1950. 5. William Farless and Vernon Spry Farless and Spry were reemployed by the Respondent within several days after the incident of November 28, and at the time of the hearing they were still in its employ. Discussion of Facts and Conclusions Reached Thereon The Trial Examiner has reached the conclusion, based on the preponderance- of substantial evidence, that on the afternoon of November 28, 1949, the Re- spondent did not discharge any member of the buck pressers' crew under the foremanship of Burley Hughes. They engaged in a work stoppage when they quit their machines and went to Berger's office. At the time they shut down the machines, they intended to quit their employment unless certain demands on their employer were met forthwith. The employees voluntarily punched out on the time clock and thereafter left the plant, although Berger requested them several times to return to work .4 It was then considerably before closing time- 4 It is to'be noted that the facts herein vary substantially from those in the case of Gullett Gin Company, Inc, 83 NLRB 1. In that case the Board found that the employees. were discharged. They met with the superintendent at their machines upon their request to discuss a raise in wages. They had not stopped work. He told them in so many words that he could not meet their demands Instead of accepting the proffered explanation of the superintendent and immediately disbanding the meeting, the employees began to. discuss the matter among themselves. It was then that the superintendent summarily- discharged them. The Board held that the employer had discriminatorily discharged' them. 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which was at 4 p. in. A makeshift temporary crew was put on the machines and continued working them after closing time, at an overtime rate, in order to keep up production and not have following departments in production run out of work. The conclusion is inevitable that the shutting down of the machines, with the intent in the minds of the operators that they would not start them again unless certain demands were met by the Respondent, was concerted union activity. An economic strike was initiated. The Respondent had no legal right to discharge the employees other than Hughes, the foreman, under such cir- cumstances. It did, however, have the right to fill the vacancies. The Re- spondent did just that in this case. It shifted employees from other depart- ments and kept the machines running as best it could. The Trial Examiner, having reached the conclusion that the employees, other than Hughes, were not discharged by the Respondent, their right to reemploy- ment by Respondent was conditioned (a) upon existing vacancies, and (b) upon their applications to Respondent for reemployment. The discharge of Hughes is not alleged to be violative of the Act. The Gen- eral Counsel contends that the Respondent refused to hire him on or about December 29, 1949, because he had filed charges or had given testimony under the Act. It is found that Hughes was offered employment in December 1949 by Respond- ent, which he refused. Again in March 1950 he refused employment by Respondent as a night watchman. He was employed by Respondent on the machines from March 25, 1950, until December 1950, when he quit to go farming. He was again employed on his application several weeks prior to the hearing and at the time of the hearing he was so engaged. The Trial Examiner concludes that Hughes was offered a job by the Respondent prior to his filing the original charge herein and that he had not then given testimony under the Act. The employments by Respondent of Hughes substantially refute the charge or the allegation of the complaint that Respondent had violated Section 8 (a) (4) of the Act by discrimi- nating against him because he had filed charges or had given testimony under the Act. The Trial Examiner finds that Respondent rehired Sissom, Farless, Barrett, and Spry upon their applications for jobs when vacancies existed. Parker did not apply for a job, and has not been reemployed. Accordingly, it is found that the Respondent did not discriminate against any of the said employees within, the meaning of the Act. C. Interference, restraint, and coercion 1. Acts of Respondent before execution of a settlement agreement The undisputed evidence in the case discloses that the Respondent, through its officers, supervisors, and agents, about August and September 1949, interro- gated its employees concerning their union activities, threatened to close the plant because of such activity, warned employees to cease union activity during lunch time or any other nonworking time while on company property, permitted and encouraged antiunion activity on its premises, urged employees to use physical force against union organizers, and moved cloth away from its plant for the purpose of intimidating employees by making it appear that union organization would cause the plant to be closed. The evidence also discloses that charges were filed by individuals concerning these unfair labor practices ,3 and that a settlement agreement was executed by the parties on September 22, 5 Cases Nos. 10-CA-813 and 10-CA-831. COLONIAL SHIRT CORPORATION 725 1949. The settlement agreement was approved by the Regional Director on October 10, 1949, and the Respondent posted the required notice to employees on October 19. The complaint alleges these acts of the Respondent as violations of the Act. The General Counsel contends that the settlement agreement does not constitute a defense by reason of unfair labor practices committed by the Respondent after September 22, 1949, and that the Trial Examiner and the Board can go behind the agreement and find the violations of the Act in this respect, as though the issues were presented de novo. In view of the unfair labor practices hereinafter found, the Trial Examiner believes that the acts of. Respondent before September 22, 1949, should be found and considered as background evidence' However, the General Counsel's contention that the Respondent's acts before the date of the settlement agreement should be found as separate and distinct violations of the Act is rejected 7 2. Unfair labor practices subsequent to the settlement agreement Concerning conversation, with Berger, Sissom was questioned and testified credibly as follows : Q. How did that incident come about? How did it happen that Mr. Berger gave the buck pressers a white shirt? A. Well, right after Burley [Hughes] took over and come back, we had increased production, he come back-he [Berger] come back after work was finished one week, and said we done a good week's work, and asked Burley something about the union. Q. What was it he asked? A. I think he asked him if any of the boys had signed up with the union on the buck crew. Q. What did Burley Hughes say? A. Well, he says, "Well, Mr. Berger, I think all of the boys has stuck by you except maybe one or two." He says, "I think you ought to give us a white shirt apiece." Q. What did Mr. Berger do? A. He turned around and hollered at Lloyd Campbell and told him to give us a white shirt. Q. Did Mr. Berger at that time mention the plant? A. The plant? Yes, sir. Q. What did he say about the plant? A. He told Burley Hughes just before we started to go get our shirts that if the union come in the front door he went out the back. * * * * * * Q. After your mother no longer worked at Colonial Shirt did you have a discussion with Sol Berger concerning rehiring your mother? A. Yes, sir. Me and William Farless together. Q. When was that that you had this conversation with Mr. Berger about rehiring your mother? A. About three weeks after she got laid off. The Wallace Corp. v. N. L R. B., 323 U S. 248. 'Electronics Equipment Co., Inc, 94 NLRB 62. 974176-52-vol 96-47 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Where were you at the time you talked to Mr. Berger? A. At our machines. Q. What was the conversation? A. I asked William to talk to Mr. Berger about hiring my mother back, and he was coming from the water fountain and William stopped him there at the end of my buck machine and asked him about hiring her, and I over- heard the conversation between the two, and Mr. Berger told William the only objection he had to taking her back was that she was a member of the union. Q. Then what was said? A. Well-Well, he turned to me and asked me if she wasn't. Q. Who turned to you? A. Mr. Berger. Q. What did you say? A. Told him I didn't think so. Q. What did Mr. Berger say then? A. He asked me if I was. Q. What did you say? A. I told him I wasn't. Q Then what was said? A. Well, lie told me that it was all a misunderstanding and he would take my mother back, and told me to tell her to come in the next day. Q. Who was present when that conversation took place? A. William Farless, Mr. Berger and myself. It. is found that by the above-related actions and remarks of Berger, the Re- spondent interfered with, restrained, and coerced' its employees. Employee Treva Ferrel was questioned and testified credibly to a conversa- tion with Foreman Pat Bollinger as follows : Q. Who did you ask to get off to come to this hearing this morning? A. Pat. Q. What did he tell you when you asked him to come to the hearing this morning? A. I just asked him to let me off. He said-I said I wanted off at 9:30, and he said "What is that for?" and I said, "Well, it is about Burley Hughes and that case." And he wanted to know what about it. And I said, "Well, I got a subpoena to go." And he just stood there a minute, and he said, "Well," and he came over there, then, in a few minutes, and was talking to me about it. Q What did he say when he came over? A. He told me to not say nothing that would hurt him. Q. (By Mr. STANFORD:) What else did he say? A He said he would rather not be in it, but he was afraid he would be before it was over, but he said, "Treva, I haven't been saying nothing to you about signing them union cards, but" he said, "it is strictly against the rules to have"-He asked me why I done it, and I said "I reckon because I got fired over signing that union card, and over what you said about the restroom," and he said, "It is strictly against rules to have them union cards in the plant, or on the grounds of the company." * * * * * * * Q. (By Mr. STANFORD:) During your conversation with Foreman Bollin- ger this morning was the lunch hour mentioned? COLONIAL SHIRT CORPORATION 727 A. No, Sir. He just-Oh, yes. He told me it was against the rules to have the cards in the plant, in the factory, on the grounds, at any time, even at lunch hour. He says that was against the rules. It is found that the above remarks of Bollinger constitute interference, re- straint, and coercion. 3. Respondent's rule or regulation in violation of the Act Respondent posted and displayed at its plant, during the material times herein, certain rules and regulations , as follows : COLONIAL SHIRT CORPORATION, WOODBURY, TENNESSEE, * AUGUST 30, 1948 REGULATIONS * * * D Violation of any of the following regulations will be sufficient grounds for disciplinary action ranging from suspension to immediate discharge, de- pending upon the seriousness of the offense in the judgment of the Man- agement. * * * * * * * 16. Distributing or circulating literature, petitions, written or printed matter of any description on Company premises, without permission of the Management. * * * * * * * The Trial Examiner finds the above rule or regulation is too broad and encroaches on the rights of employees under the protection of the Act, and therefore it constitutes a violation on the part of Respondent of Section 8 (a) (1) of the Act a The rule, in effect, prohibits union or concerted activity by em- ployees during their free time, as distinguished from working time, while on company property. That the rule was so interpreted and applied by Respondent is clear from the statements of Bollinger to Ferrel, related and found above. IV. THE EFFECT OF UNFAIR LABOR PRACTICES UPON COMMERCE It is found that the activities of Respondent set forth in Section III, above, occurring in connection with the operations of Respondent described in Sec- tion I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices within the meaning of Section 8 (a) (1) of the Act, the Trial Examiner will recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the purposes and policies of the Act. The number and variety of unfair labor practices found above clearly indi- cate that Respondent has been and is disposed to defeat concerted activity and self-organization among its employees, and discloses an attitude on the part of Respondent of fundamental hostility to the purposes of the Act. This attitude and conduct also indicates the likelihood that Respondent may resort in the future to similar or related unfair labor practices proscribed by the Act. The preventive purposes of the Act will be thwarted unless the recom- 8 Meier & Frank Company, Inc., 89 NLRB 114. 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mendations herein and the Board's order thereon are coextensive with the threat. The Trial Examiner will therefore recommend that Respondent cease and desist from in any manner infringing upon the rights of employees guaran teed in Section 7 of the Act. Upon the foregoing findings of fact and the entire record in the case the Trial Examiner makes the following : CONCLUSIONS OF LAW 1. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act, to the extent herein found to be violative of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 2. The aforesaid labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] BEMIS BRO. BAG CO. and UNITED TEXTILE WORKERS OF AMERICA, AFL. Case No. .10-CA-1162. October 10, 1951 Decision and Order On June 15, 1951, Trial Examiner Henry J. Kent issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, as set forth in the copy of the Intermediate Report attached hereto. There- after, the complainant and counsel for the Board filed exceptions and supporting briefs. The Respondent submitted a brief in support of the Trial Examiner's Intermediate Report. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are affirmed. The Board has considered the Intermediate Re- port, the exceptions and briefs, and the entire record in the case, and adopts the Trial Examiner's findings of fact with certain exceptions noted below, but rejects his conclusions and recommendations. The Trial Examiner found that the evidence failed to sustain the complaint allegation that the Respondent has refused to bargain with respect to the rental of housing facilities, owned and operated by the Respondent, in violation of Section 8 (a) (5) of the Act. We do not agree. 1. The Trial Examiner concluded that because the Respondent and the Union have negotiated a comprehensive contract, although the 1 Pursuant to the provisions of Section 2 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Mem- bers Houston and Reynolds]. 96 NLRB No. 101.