Southern Silk Mills, Inc.

SOUTHERN SILK MILLS , INC. and UNITED TExT E WORKERS OF AMERICA, AFL. Case No. 10-CA-1293. October R1, 1952 Decision and Order On December 27, 1951, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Respondent's request for oral argument is hereby denied, as the record, the exceptions, and brief, in our opinion adequately pre- sent the issues and the positions of the parties. ` The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Re- port, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the additions noted below. 1. We find, as did the Trial Examiner, that the walkout of the employees on the 2-10 p. m. shift, April 30, 1952, and the two walkouts on the 10 p. m., April 30-6 a. m. shift, May 1, 1952, constituted con- certed activity for mutual aid and protection within the meaning of Section 7 of the Act., We further find that, as the Respondent dis- charged Roberts, and first suspended and later discharged the other 39 employees because they participated in these work stoppages, the Respondent interfered with the employees' right to engage in con- certed activity in violation of Section 8 (a) (1) of the Act. More- over, as the suspensions and discharges amount to discrimination in regard to hire or tenure of employment, we find the Respondent also violated Section 8 (a) (3) of the Act.2 In addition, we find that the discharge of the 39 employees was also motivated by Respondent's resentment against the organizational ac- 1 It is not completely clear from the Intermediate Report that there were two walkouts on the 10 p. m.-(l a. m. shift. Our holding applies to both of these walkouts , as well as to the walkout on the prior 2-10 p. m. shift. 2 N. L. R. B. v. Kennametot, Inc., 182 F. 2d 817 (C. A. 3), enfg. 80 NLRB 1481 ; Duro Test Corporation, 81 NLRB 976. In making this finding, we hold that the employees who informally joined together to present their complaint to the Respondent fall within the definition of a labor organization. 101 NLRB No. 9. 1 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tivity engaged in by these employees after they were suspended. Thus, even if the walkouts by these employees did not constitute pro- tected concerted activity, it is clear that the Respondent's later dis- charge of these employees in retaliation for their organizational ac- tivity was violative of Section 8 (a) (1) and (3) of the Act. 2. The Trial Examiner also found, and we agree, that the credible evidence is insufficient to support the allegations that Respondent's President William Hilleary, through Lloyd Cunningham, offered to reinstate the employees who had been discharged if they would reject the Union; or that Production Engineer W. C. Hilleary kept a union meeting under surveillance. Accordingly, we shall dismiss the com- plaint with respect to these allegations. Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Southern Silk Mills, Inc., Spring City, Tennessee, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in United Textile Workers of Amer- ica, AFL, or any other labor organization of the employees, by dis- criminatorily laying off or discharging any of its employees, or by discriminating in any other manner in regard to their hire or tenure of employment, or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Textile Workers of Amer- ica, AFL, or any other 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 in a labor organi- zation 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 Trial Examiner finds will effectuate the policies of the Act : (a) Offer to Wheeler Roberts and the employees listed in Appendix A of the Intermediate Report immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges. (b) Make whole Wheeler Roberts and the employees listed in Ap- pendix A of the Intermediate Report for any loss of pay they may have SOUTHERN SILK MILLS, INC. 3 suffered as a result of the discrimination against them, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (c) Upon request make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, personnel records and reports, and all other records necessary to analyze the amounts of back pay due. (d) Post at its plant in Spring City, Tennessee, copies of the notice attached hereto as Appendix A.3 Copies of said notice, to be supplied by the Regional Director for the Tenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days in conspicuous places, including 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. (e) 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 be, and it hereby is, dismissed insofar as it alleges that William Hilleary, Respondent's president, through employee Lloyd Cunningham, offered to reinstate the laid-off employees if they would reject the Union; and that Pro- duction Engineer W. C. Hilleary kept a union meeting under surveil- lance. MEMBER HOUSTON took no part in the consideration of the above Decision and Order. 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 discourage membership in UNITED TExTU.E WORKERS OF AMERICA, AFL, or in any other labor organization of our employees, by discriminatorily laying off, discharging, and refusing to reinstate any of our employees, or in any other manner discriminate in regard to their hire and tenure of employment or any term or condition of employment. • In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 242305-53-2 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT interrogate our employees regarding their union membership and activity or warn or threaten them that such activity or membership will result in loss of employment or other reprisals. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist UNrrED TEXTILE WORKERS OF AMERICA, AFL, or any other labor organization, to bargain collectively through representatives of their own choos- ing 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 of such activities except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL offer to the employees named below immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges, and make them whole for any loss of pay suf- fered as a result of the discrimination against them. Harry Ruffner Liner Newby Teddy Manday Lawrence Hamby Edward Hollaway Henry Hill Frank Knox Effie Fugate G. C. Thurman Virgil Smith Lois Dye Evie Jo Fugate Nettie Romines Irene Hill Raymond Wolfe Jim Thompson Jim Galloway Ted Barnett Eugene Gillum Dallas Knox Paul Agee Howard Laman Edward Steincipher Harold Strader June Schoolfield Harold Cawood Wheeler Roberts Felix Alley Margaret Strader Robert Reed Russell Kincannon Faye Schoolfield Floyd Reed, Jr. Earl Fugate Harold Garden Raymond Brady Frank Cunningham James A. Smith Dawes D. Hall James D. Wilkey All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to their hire and tenure of employment or any SOUTHERN SILK MILLS, INC. 5 term and condition of employment because of membership in or ac- tivity on behalf of any such labor organization. SOUTHERN SILK MILLS, INC., Employer. Dated ----------------- By -------------------------------- (Representative ) (Title) This notice mist remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report STATEMENT OF THE CASE Charges having been duly filed and served, a complaint and notice of hear- ing thereon having been issued and served by the General Counsel of the Na- tional Labor Relations Board, and an answer having been filed by the above- named Company, a hearing involving allegations of unfair labor practices in violation of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, by the Respondent Company, was held in Dayton, Tennessee, on November 26, 27, and 28, 1951, before the undersigned Trial Examiner. In substance the complaint, as amended at the hearing, alleges that in May 1951, the Respondent (1) discriminatorily laid off and discharged certain named employees 1 in violation of Section 8 (a) (1) and (3) of the Act ; and (2) by such discrimination and by interrogation, intimidation, and surveillance interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act. At the hearing all parties were represented by counsel and were afforded full opportunity to be heard, to examine and cross- examine witnesses, to introduce evidence pertinent to the issues, to argue orally upon the record, and to file briefs and proposed findings and conclusions . General Counsel argued, his argument appearing in the transcript of the hearing. A brief has been received from the Respondent. Disposition of the Respondent's motion to dismiss the complaint, upon which ruling was reserved at the hearing, is made in the find- ings, conclusions, and recommendations appearing below. Upon the entire record in the case and from his observation of the witnesses, the Trial Examiner makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Southern Silk Mills, Inc. is a Tennessee corporation having its principal office and place of business in Spring City, Tennessee, where it is engaged in the manufacture of women's apparel. During 1950 the Respondent purchased raw materials valued at more than $150,000, of which about 85 percent was purchased from points outside the State of Tennessee. During the same period it sold finished products valued at more than $150,000, of which about 85 percent was sold and shipped to points outside the State of Tennessee. The Respondent concedes that it is engaged in commerce within the meaning of the Act. i It was alleged that Wheeler Roberts was discharged on May 1, that on the same day the 39 employees listed on Appendix A attached hereto were laid off, and that on May 5 the said employees were discharged. 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD U. THE LABOR ORGANIZATION INVOLVED United Textile Workers of America, AFL, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Events and major issues There is little dispute in the evidence relating to the major issues in the case- the mass layoff on May 1 and discharge on May 5 of the 39 employees listed on Appendix A, attached hereto. The Respondent concedes the action and the identity of the individuals. The testimony of the Respondent's president, William Hilleary, establishes that the "cooling" or air-conditioning apparatus in this small textile plant of about 200 employees was out of order from about April 25, 1951, until sometime after the layoff. Hilleary conceded that the room temperatures from April 25 to May 1 ranged from 90 to 97 degrees. It is reasonably inferred and the Trial Examiner finds that employment for 8 hours in such temperatures constituted working conditions. During the early night shift of April 30 a few of the employees decided to, and did, walk out of the plant to cool off for a few minutes. They shut down their machines but did not punch the time clock. More employees on the next shift did likewise, remaining outside in the cooler air for a few minutes and then returning to their jobs. In all about 40 employees on 2 shifts concertedly and briefly left their machines. That such action was concerted is made plain by testimony not only of par- ticipating employees but also of at least one shift foreman,' V. M. Fairchild, who testified that before workers on his shift walked out one of them came to him and said : "I don't want you to think that we are trying to run over you or anything," and "we are going outside." Fairchild also admitted that employees had complained about the heat before walking out. Nor is the testimony of employee Henry Hill credibly contradicted to the effect that Fairchild, who also went outside, told the employees when asked what he was going to "do about it," that "it was just too hot for anybody to work in there," and that he "didn't give a damn if they stayed out all night." Shift Foreman Earl Treadway, when asked by employee Wheeler Roberts what he was "going to do about this," said "I don't aim to do anything. I wouldn't ask them to go back in there if they sat out there all night." Roberts himself urged the employees in his group to go back in and finish the shift, and he agreed to act as spokesman the next day in an effort to get John McCuiston, manager of the knitting and warping departments, to "cool it down." Early in the afternoon of May 1 Roberts and several employees came to the plant before their shift began. Roberts asked McCuiston if "they was going to cool it down to where we could live in there." McCuiston replied that he didn't know, but that if they couldn't, the employees "could get out," and he "didn't give a damn." Workers reported as usual on the shift beginning at 2 p. in., May 1. After talking with Roberts, McCuiston reported to Hilleary that employees working 2 At the hearing the Respondent contended , in effect, by declining to agree to General Counsel 's proposed stipulation , that shift foremen were not supervisors . Testimony of Hilleary himself deprives the contention of merit . Shift foremen reported the walkout, selected the employees for layoff, and upon instructions issued by Hilleary , discharged them. SOUTHERN SILK MILLS, INC. 7 the night before had walked out, leaving their machines . Hilleary told the manager to lay off for the rest of the week all who had participated , except Roberts, and ordered Roberts' immediate discharge. Through the shift fore- man, Hilleary's orders were carried out that same afternoon ; Roberts was dis- charged by McCuiston and later given a separation slip noting that dismissal had been for "misconduct." The next day, May 2, several of the laid -off employees went to Knoxville, Tennessee, interviewed union officials, and upon return to Spring City promptly began self-organization, soliciting signatures to union application cards from their fellow employees. During that week at least two shift foremen were thus solicited and a union organization meeting was held. Early Saturday morning, May 5, according to the credible testimony of five different employees who were not laid off or discharged, McCuiston came to them separately, asked if they had heard about "the boys" organizing a union, and stated his belief and fear that Hilleary would not operate under a union but would close the plant down. Later the same morning, Hilleary came to the plant and instructed McCuiston to discharge and pay off all who had been laid off on May 1 . McCuiston and shift foremen promptly began delivering to employees wherever located their checks and separation slips stating that the discharge was for "misconduct." Whether or not the mass layoff and discharge was violative of the Act is the major issue in the case. B. Conclusions as to the layoffs and discharges As to the May 1 discharge of Roberts and layoff of employees listed on Appen- dix A, Hilleary's own testimony makes plain that his resentment against their concerted activities was the motivating cause. He said that he told McCuiston "we couldn't have that sort of thing and some definite disciplinary action would have to be taken and suspend them immediately." Hilleary claimed that he discharged Roberts because this was his "second offense." It appears that several years ago-in 1943-after working for the Company since 1931, Roberts quit his job voluntarily when McCuiston ordered him to run twice as many machines for the same pay. He was rehired in 1947 and it is undisputed that there had been no complaint about his work or conduct since then. Clearly there was no similarity in the "offenses" ; even if Hilleary sincerely believed it to be an "offense" for one of his employees to quit his job outright, the action was condoned by rehiring, and in 1951 Roberts did not quit, but merely walked out briefly with others to escape and protest against unbear- able working conditions. It is more reasonable to infer , and the Trial Examiner finds, that Hilleary ordered his discharge because he believed Roberts had led the concerted action , since he acted as spokesman for the employees in protest- ing the heat conditions to McCuiston. The activity of the employees , including Roberts, was concerted and protected. It was clearly a walkout, not a refusal to work while on the job. The shift foremen were not only appraised of the nature of the complaint , but they also took part in the demonstration , at least to the extent of going outside with the employees. That they did not punch their time cards does not alter the nature of their activity.' The complaint alleges that the discharge of Roberts and the layoffs of the others were discriminatory and violative of Section 8 (a) (3) and (1) of the Act. The undisputed facts support this allegation . By their activity, the em- 2 J. I. Case Company, Bettendorf Works, 95 NLRB 47. 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees in a group were acting in concert for their mutual aid and protection with respect to conditions of work. That they were not acting, at that time, as members of or on behalf of the Union is immaterial ; the Respondent's discrimi- nation against them discouraged group membership and activity and therefore was violative of Section 8 (a) (3) as well as Section 8 (a) (1) of the Act .4 As to the discharge on May 5 of the employees already "suspended" on May 1, Hilleary in effect admitted, as a witness, one allegation of the complaint : that the action was taken because of the walkout. General Counsel also claims that a coexisting motive was to discourage membership in the Union. Hilleary claimed that suspending his employees on May 1 "was a burden on his mind" until the same night when, driving along the highway, he apparently disposed of the burden by making up his mind "to discharge the group that had challenged the authority of the mill and shown such insubordination." Also according to Hilleary he was busy most of the remainder of the week-not with the working conditions of his employees, but by putting a lot of strawberries in deep freeze. Nevertheless on Friday night he "lay awake all night trying to find some justification for not discharging them because these folks have been my friends." His search was futile. On Saturday be got "up in the morning with the conclusion there was nothing else to do for the good of the business." Thus Hilleary's quoted testimony establishes violation of Section 8 (a) (3) and (1) in discharging the employees, as in the case of the layoffs. Credible evidence, moreover, convinces the Trial Examiner and he finds that Hilleary was further incensed because his employees had engaged in self-organzation during their suspension . That Hilleary was aware of activity in organizing the Union is reasonably inferred and found not only from McCuiston's warning to five employees before the discharges, but also from the fact that organization occurred in a small community and a small mill. It is concluded and found that, in addition to his own admitted motive, Hilleary discriminatorily discharged the employees listed on Appendix A to discourage membership and activity in the Union, and thereby interfered with, restrained, and coerced employees in the exercise of rights guaranteed by the Act." It is further found that McCuiston's interrogation of employees and accom- panying warning of the plant's closing constituted interference, restraint, and coercion. C. Other acts of interference, restraint, and coercion Shortly after organization of the Union began, W. C. Hilleary, the plant pro- duction engineer and son of the president, asked employee Glen Larson how he "felt about the Union." Such interrogation, as the Board has found, is vio- lative of rights guaranteed employees by the Act e Roselle Starring, manager of the dyeing and finishing department, after the discharges, told employees Larson and Baldwin that the plant might close if the Union came in.' This remark, made by a management representative, was clearly coercive. 4 The office Towel Supply Company, Incorporated, 97 NLRB 449 ; Duro Test Corpora, tion, 81 NLRB 979. 5 In his brief, counsel for the Respondent claims that the "misconduct" alleged on the separation slips included other "offenses," including claims that "someone deliberately jimmied the control, siphoned water out on the floor and planned the walkouts." No credible evidence was offered by the Respondent to support a finding that any one or more of the 40 employees involved tampered with or damaged any property. 6 Standard-Coosa-Thatcher Company, 85 NLRB 1358. Starring's denials as to making these remarks is not accepted as credible . As found, Hilleary discharged 39 employees to discourage union membership. SOUTHERN SILK MILLS, INC. 9 D. Other allegations of the complaint The complaint alleges that Hilleary, the Respondent's president, through employee Lloyd Cunningham, offered to reinstate his laid-off employees if they would reject the Union. Cunningham's testimony fails to support this con- tention, and Hilleary denied having made such an offer. The Trial Examiner concludes and finds that the credible evidence is insufficient to support the alle- gation of the complaint. It is also alleged that in June 1951, Production Engineer W. C. Hilleary "kept under surveillance" a union meeting. Hilleary readily admitted attending a meeting, and Union Counsel Jacobs as readily admitted that Hilleary left when so requested by him. It appears that in going to the meeting, young Hilleary seriously accepted an invitation admittedly made "jokingly" by Jacobs, the same day, while both were attending a Board hearing. Under the circumstances de- scribed by Jacobs himself the Trial Examiner finds the evidence insufficient to establish "surveillance" of the sort proscribed by the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. V. THE REMEDY It has been found that the Respondent has engaged in and is engaging in unfair labor practices affecting commerce. It will be recommended that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. It has been found that the Respondent, by the layoffs and discharges described above, discriminated against certain individuals in regard to their hire and tenure of employment in violation of the Act. It will therefore be recommended that the Respondent offer to Wheeler Roberts and the employees listed on Appendix A immediate and full reinstatement to their former or substantially equivalent positions,' without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of the discrimination by payment to each of them of a sum of money equal to that which he would normally have earned less his net earnings,' which sum shall be computed on a quarterly basis during the period from the discrimi- natory discharge to the date of a proper offer of reinstatement." It will also be recommended that the Respondent make available to the Board, upon request, payroll and other records to facilitate the checking of the amount of back pay due." The discrimination found herein indicated a purpose to limit the lawful concerted activities of the Respondent's employees. Such purpose is related to other unfair labor practices, and it is found that the danger of their commission is reasonably to be apprehended. It will therefore be recommended that the 8 The Chase National Bank of the City of New York , .an Juan, Puerto Rico, Branch, 65 NLRB 827. Crossett Lumber Company, 8 NLRB 440. 'O F. W. Woolworth Company, 90 NLRB 289. 11 Ibid. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed by the Act. Upon the basis of the above findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. United Textile Workers of America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Wheeler Roberts and the employees listed on Appendix A, attached hereto, thereby discouraging membership in a labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with , restraining, and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] Appendix A Harry Ruffner Irene Hill Felix Alley Liner Newby Raymond Wolfe Margaret Strader Teddy Manday Jim Thompson Robert Reed Lawrence Hemby Jim Galloway Russell Kincannon Edward Hollaway Ted Barnett Faye Schoolfield Henry Hill Eugene Gillum Floyd Reed, Jr. Frank Knox Dallas Knox Earl Fugate Effie Fugate Paul Agee Harold Garden G. C. Thurman Howard Laman Raymond Brady Virgil Smith Edward Steincipher Frank Cunningham Lois Dye Harold Strader James A. Smith Evie Jo Fugate June Schoolfield Dawes D. Hall Nettle Romines Harold Cawood James D. Wilkey BLUE MOUNTAIN MILLS AND DAYVILLE LUMBER COMPANY and LUM- BER AND SAWMILL WORKERS, LOCAL UNION No. 2545, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL. Case No. 36-CA-2P9. October 21,195$ Decision and Order On February 11, 1952, Trial Examiner Martin S. Bennett issued his Intermediate Report in this proceeding, finding that the Respond- ents had not engaged in the unfair labor practices alleged in the com- plaint, and recommending that the complaint be dismissed in its en- tirety, as set forth in the copy of the Intermediate Report attached 101 NLRB No. 11.