Talladega Cotton Factory

In the Matter of TALLADEGA COTTON FACTORY and TEXTILE WORKERS ORGANIZING COMMITTEE Case No. C-430.-Decided October 15, 1938 Cotton Yarn and Cloth Manufacturing Industry-Interference, Restraint, and Coercion: no findings as to, because of compliance with Trial Examiner's recommendations ; complaint not dismissed since recommendations contemplate a continuing course of conduct-Discrimination : charges of , not sustained- Collective Bargaining : charges of refusal to bargain collectively not sustained. Mr. Marion A. Prowell, Mr. Maurice Nicoson, and Mr. Louis Lib bin, for the Board. Mr. C. W. Stringer, of Talladega, Ala., for the respondent. Mr. H. G. B. King, of Chattanooga, Tenn., for the Union. Miss Carolyn E. Agger, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Charges and amended charges having been filed by Textile Work- ers Organizing Committee, herein called the Union, with the Regional Director for the Tenth Region (Atlanta, Georgia), the National Labor Relations Board, herein called the Board, by the Regional Director, issued its complaint dated November 10, 1937, against Talladega Cotton Factory, Talladega, Alabama, herein called the respondent, copies of which were duly served upon the respondent. The complaint, as amended by a motion made at the hearing, alleged in substance that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act, in that the respondent had discharged and refused to employ certain named employees because of their selection of the Union as their bargaining agent and because of their membership in and activity in behalf of the Union ; the respondent had refused and was refusing to bargain collectively with the Union as the exclusive bar- gaining representative of. the employees of respondent's factory 9 N. L. R. B., No. 32. 207 ' 208 NATIONAL LABOR RELATIONS BOARD although the Union had been designated as the representative of the majority of the respondent's employees prior to June 1, 1937; and by the foregoing actions the respondent had interfered with, restrained, and coerced its employees in the exercise of their right to self-organi- zation and to bargain collectively through representatives of their own choosing. On November 19, 1937, the respondent filed its an- swer, which was amended by a motion dated November 27, 1937, denying the commission of the unfair labor practices alleged and denying, for lack of knowledge, that the Union represented a majority of the respondent's employees prior to July 20, 1937, but admitting that the Union represented a majority subsequent thereto. On October 9, 1937, the Board, acting pursuant to Article III, Sec- tion 10 (c) (2), and Article II, Section 37 (b), of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered a consolidation, for the purposes of hearing, of the proceedings with proceedings upon a petition for investigation of representatives pre- viously filed by the Union. Pursuant to notice duly served upon both parties, a joint hearing on the petition and the complaint was held at Talladega, Alabama, on November 26, 27, 29, and 30, 1937, before Henry T. Hunt, the Trial Examiner duly designated by the Board. The Board, the respondent, and the Union were represented by counsel. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evi- dence bearing on the issues was afforded all the parties. During the course of the hearing the Trial Examiner made several rulings on motions and objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no preju- dicial errors were committed, On February 16, 1938, the Trial Examiner filed his Intermediate Report, in which he found that the respondent had not engaged in unfair labor practices within the meaning of Section 8 (3) and (5) of the Act as alleged in the amended complaint but that the respond- ent had engaged in unfair labor practices within the meaning of Section 8 (1) of the Act. He, therefore, dismissed the allegations in the complaint relating to the respondent's refusal to bargain col- lectively and the discriminatory dismissal of the named employees. The Trial Examiner recommended that the respondent cease and de- sist from interfering with its employees in the exercise of the right to organize and to bargain collectively through representatives of their own choosing. On February 24, 1938, the Union filed exceptions to the Intermediate Report. On January 11, 1938, and March 25, 1938, respectively, the respondent and the Union filed briefs relating to the evidence, and on February 28, 1938, the respondent filed a brief and argument on the Union's exceptions to the Intermediate Report, to all of which DECISIONS AND ORDERS 209' we have given due consideration. Oral argument upon the exceptions was requested by the Union and granted by the Board. On April 195 19385 the date on which the argument was set, neither the respond- ent nor the Union appeared. The Board has considered the exceptions to the Intermediate Report and finds them to be without merit. On September 13, 1938, the Board, acting in accordance with Na- tional Labor Relations Board Rules and Regulations-Series 1, as amended, Article II, Section 37 (b), and Article III, Section 10 (c) (2), ordered the representation and complaint cases severed. Upon the entire record in the case, the Board makes the following FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is an Alabama corporation engaged in the manu- facture and sale of cotton yarn and knit cloth, having its only factory and place of business in Talladega, Alabama. For the past 3 years the respondent's average annual business has been between $300,000, and $350,000. The respondent manufactures only to fill orders and the size of its pay roll varies with the press of orders. One, two, or three shifts are employed as orders require, with the production personnel vary- ing accordingly from 125 to 350 employees. When demand for the respondent's products falls sufficiently low, the factory is closed entirely. The respondent purchases practically all of its raw material and machinery in the State of Alabama. However, 90 per cent of the finished products are sold to customers outside of the State. II. THE ORGANIZATION INVOLVED Textile Workers Organizing Committee, affiliated with the Com- mittee for Industrial Organization, is a labor organization admitting to membership all production and maintenance employees engaged in the manufacture of cotton yarn and knit cloth, excluding clerical and supervisory employees. III. THE UNFAIR LABOR PRACTICES A. The background of the unfair labor practices Organization of a labor union in the respondent's factory was undertaken by the United Textile Workers of America, herein re- ferred to as the U. T. W., in the early part of June 1936, when a number of the respondent's employees joined the U. T. W. The fac- tory was closed on June 20, 1936, and did not reopen, except for 1 day in August, until September 1936. During the summer months some of 210 NATIONAL LABOR RELATIONS BOARD the respondent's employees assisted in picketing a neighboring cotton factory, Samoset Mill, where a strike was in progress, and by reason of this activity, they became known to the respondent as U. T. W. members. When the respondent's plant reopened in September a number of these employees were reemployed as well as some persons who had been on strike from Samoset Mill and who were not reem- ployed by that mill. In January 1937, the respondent hired the chairman of the U. T. W. local, to which employees of both mills belonged, who had been on strike at Samoset Mill. At about this time Textile Workers Organizing Committee took over the organizing and negotiating functions of the U. T. W. and thereafter acted in such matters in its behalf. In late May or early June 1937, the respondent laid off the third shift. The second shift was laid off sometime later, and in October 1937, the factory was still running with only one shift. Wage rates were low in the respondent's mill, weekly wages of from $3 to $5 for a 5-day week being common among the piece workers. Late in Oc- tober, the respondent announced a cut in the rate of wages. The cut was rejected by the Union. At about that time, the membership voted to strike, and the strike became effective on November 15, 1937. The strike was still in effect at tlie time of the hearing but the factory was nevertheless in operation. B. Interference, restraint, and coercion On October 30, 1937, the respondent, having been notified that the wage cut was not acceptable to the union membership, closed its plant. On November 15, 1937, the plant was reopened and the strike became effective. Shortly thereafter the respondent sent letters to all employees who had been working in the respondent's factory prior to the shut-down and who had not returned to work, of whom some were union members on strike and others were not members. The letters apprised the employees that the respondent was resuming operations, called upon employees to report to the factory before November 22, 1937, and advised them that their jobs would be filled by others if they did not return. The Trial Examiner found that this action of the respondent was an interference with its employees' right to bargain collectively through representatives of their own Choosing. In June 1936, when the Union commenced organizational work among the respondent's employees, the respondent attempted to dis- suade its employees from joining the Union. Carroll, one of the overseers, was particularly active in these attempts. On one occa- sion, Carroll, after having ascertained that three employees intended to join the Union, warned them, "Well, you better stay out of that DECISIONS AND ORDERS 211 Union, it ain't no pay to you; I guess you know what it means, it means your job." Carroll denied making such a statement, but all three employees testified that the statement was made and we so find. At about the same time, Carroll inquired of another employee whether he had_ attended the union meeting and told the employee that'"if lie`wanted a job he had better lay off of the damned Union." Carroll testified that he had not warned the respondent's employees against joining the Union, that he had told them that they could do what they liked. However, Carroll's interest in the extent of union membership is clearly indicated by his attendance of some of the union meetings, and he admitted that he had discussed the Union with some of the employees. It is probable that Carroll advised the employees not to join the Union. On February 18, 1938, however, the respondent, acting pursuant to the recommendations contained in the Trial Examiner's Intermediate Report, posted on each floor of its mill, a notice stating in part that it would "in every way cease and desist from interfering with its employees in the right to bargain collectively through representatives of their own choosing." - Since the respondent has already indicated its intention of com- plying with the Act and has posted notices so informing its employees, we find it unnecessary, under the circumstances, to make any findings as to whether, by the activities set forth above, the respondent has interfered with, restrained, or coerced its employees in the exercise of the rights "guaranteed by Section 7 of the Act. C. The alleged discrimination in regard to hire and tenure of, employment The complaint as amended at the hearing alleged discriminatory lay-offs and failure to employ 10 members of the Union over a period extending from June 1936 until June 1937. A number of the lay-offs seem to have been caused directly or indirectly by the curtailment of operations at the plant. The volume of employment at various times, therefore, is an important consideration. Robert McMillan, the exec- utive secretary of the respondent, testified that as early as April 1936 it became necessary because of the falling off of orders to reduce operations to two shifts working for only 3 days a week; that on June 6, 1936, the working force was reduced to one shift and on June 20, 1936, the plant was closed entirely. The plant was then reopened with one shift on September 14, 1936, a second shift being added a week later. A third shift was apparently put on sometime thereafter, but the date does not appear in the record. Robert McMillan fur- ther testified that business began to fall off again in the summer of 1937. Allen McMillan, the president and treasurer of the respondent, 134068-39-vol IX-15 212 NATIONAL LABOR-RELATIONS BOARD testified that the third shift was laid off in May 1937.' The volume of orders continued to be small during the summer of 1937 so that by October 1937, a number of employees were working on short time in order that the work might be spread among them. It is against this background that most of the lay-offs must be considered. . George Ferrell. George Ferrell was the chairman of the local union of Textile Workers Organizing Committee, which was made up of employees from the respondent's mill and from the Samoset Mill, where the strike referred to above had occurred in the summer of 1936. Ferrell had been an employee of the -Samoset Mill but was not reemployed by that mill'when the strike ended. The respondent gave Ferrell a job in January 1937; although the fact that he was active in the Union was known to the respondent at that time. Fer rell continued his union activities during the spring of 1937, con- ferring on several occasions with Allen McMillan on discharges con- tested by the Union. Ferrell was laid off in late May -or early June 1937, the entire third shift composed of- approximately 100 per- sons, of whom he was one, being laid off at that time. It appears un- likely that the respondent would lay off the whole shift merely to eliminate Ferrell. The record does not disclose that the third shift had a large number of union members. There is a conflict in testi- mony as to whether the notice of the lay-off was posted prior to the discussion of a union contract with the respondent or whether it took place on the same day, June 6, 1937. Ferrell testified that the Union requested a conference for the purpose of negotiating a contract at 4: 20 p. m. and that the notice of the lay-off was posted at 5 p. m. While' the respondent could have acted with such speed, it appears unlikely that the notice was occasioned by the request for the con- ference. The respondent's contention that, the decrease in orders was the cause of the lay-off is convincing, in the light of further declines in orders during the summer and in view of the respondent's famili- arity with Ferrell's union activities at the time of his employment and for months thereafter. We find that the respondent did not dis- courage membership in a labor organization by discrimination in regard to the hire or tenure of employment of George Ferrell. Roberta Curtis, Ionia Curtis, Docia Curtis, James Ford, and J. W. Haywood were laid off in June 1936 at about the time the factory was shut down for , the summer. When the plant reopened in Sep- tember, none of them were reemployed except James Ford, who was employed for 4 days and then discharged for allegedly bad work. In each case, there is evidence that the respondent had discriminated against the employees because of their membership in the Union. However, the evidence of discrimination is met by other irrecon- cilable evidence. In September, the respondent employed about 15 people who had been on strike from the Samoset Mill and who were DECISIONS AND ORDERS 213 known as union members. A few months later, the respondent em- ployed Ferrell, the chairman of the local. If the respondent had un-, dertaken a.policy of discrimination against union members, it is diffi- cult to understand why, at the same time, it would have employed persons known to be union members. The employees named above were not particularly active union members, and in every case evi- dence was introduced which tended to show that there were reasons other than the employees' union affiliation which might have moti- vated the respondent in failing to employ them. We find, therefore, that the respondent did not discourage mem- bership in a labor organization by discrimination in regard to hire or tenure of employment of Roberta Curtis, Ionia Curtis, Docia Curtis, James Ford, or J. W. Haywood. Sarah Reaves. Sarah Reaves was first employed by the respondent early in 1936 as an inexperienced employee. She returned to. work in- December 1936 after the shut-down, although she had applied for work immediately upon the reopening of the plant in September. She testified that upon returning for work in December she was asked by Robert McMillan whether she would "stick to them,", by which she understood that McMillan was asking whether she" would refrain from joining the Union. Reaves did not belong to the Union at the time but joined on April- 1, 1937. A union card was then signed for her in the plant by a union member. She testified that at the time she had looked around, and saw Davis, an overseer, standing directly behind her. She was laid off about a week later and was told that from then on spinners were required to spin six "sides." She had never operated more than four sides, and it -was contended by the respondent that she was unable to do so since she was a comparatively inexperienced worker. The superintendent of the plant -testified that at the time of the hearing all spinners were operating six sides and had been doing so for about 6 months. The question attributed to McMillan is so ambiguous that we do not give much weight to it. The fact that Davis saw the union card signed very shortly before the lay-off would- cast suspicion on, the motive for the lay-off were it not clear that the respondent in- stituted a stretch-out system among the spinners at about that time. We find that the respondent did not discourage membership in a labor -organization by discrimination in regard to the hire or tenure of employment of Sarah Reaves. Mabel Hurst. Mabel Hurst was an experienced, efficient worker, employed by the respondent in March or April 1936. She joined the Union on June 4, 1936, at a meeting at which she observed Carroll, the overseer, directly behind her. Carroll admitted that he had attended a number of the meetings and had seen many people there. On the day following the meeting Carroll told her that her section 214 NATIONAL LABOR RELATIONS BOARD was to be shut off, the section being made up of four to six people and a part of the first shift. One or two members of the section were union members, and the persons in the section, including union members, were placed in other parts of the plant. When the plant reopened Mabel Hurst was not rehired. Carroll testified that he did not use her in other parts of the mill since she had been em- ployed for such a short time. We are satisfied that the shutting down of the section occurred in connection with the closing of the plant which was completed 2 weeks later and that Mabel Hurst was not used elsewhere temporarily because of her lack of seniority. She did not return for work immediately after the mill reopened in September, and when she did return, no places were open. We find, therefore, that the respondent did not discourage mem- bership in a labor organization by discrimination in regard to hire or tenure of employment of Mabel Hurst. James Aldrich. James Aldrich started to work for the respondent in 1934 or 1935 and joined the Union sometime during the summer, of 1936. Aldrich testified that when he applied for work in Septem- ber, he was told by Robert McMillan that he would have to get out of the Union if he wanted to be employed; that he then dropped out of the Union and so informed McMillan. McMillan denied on the stand that he had told Aldrich that it would be necessary to with- draw from the Union. McMillan's version of the incident was that Aldrich had asked whether he could belong to the Union and still work for the Company and that McMillan had replied that it was immaterial to the Company. Aldrich rejoined the Union in January 1937, but the record does not show that the respondent knew that he had rejoined. Aldrich was discharged on April 3, 1937, and was told by the overseer that he was not a satisfactory employee because of his failure to fix the bands on the machines. The evidence is con- flicting and rather inconclusive as to whether Aldrich in fact neglected his duties. However, in view of this fact that Aldrich was not an active member of the Union and in the absence of any showing that the Company had any knowledge that he was a mem- ber of the Union at all, we conclude that Aldrich was not discharged because of his union membership or activity. We -find, therefore, that the respondent did not discourage mem- bership in a labor organization by discrimination in regard to hire or tenure of employment of James Aldrich. Floyd Hydrick. Floyd Hydrick had worked for the respondent off and on since 1917, and had joined the Union on June 6, 1936. He testified that when he applied for employment upon the opening of the plant in September 1936, he was told by Robert McMillan that it would be necessary to withdraw from the Union, if he was to get his regular job back; that A. G. McMillan told him to pay no atten- DECISIONS AND ORDERS 215 tion to what Robert had said but to go to work on ,the regular job. The McMillans both denied that any such incident occurred. Hydrick went to work but was subsequently discharged because he had mixed up some yarn. Hydrick was reemployed in December 1936, as a sweeper'and then given back his old job, which, he held until he fell sick. Upon recovering from his illness he found that his job had been given to someone else and that there were no open- ings. Hydrick stated at the hearing that he did not believe that he was being discriminated against because of his union affiliation. We make no finding as to whether Robert McMillan told Hydrick to withdraw from the Union, because he was reemployed thereafter. Since Hydrick was hired twice after he had joined the Union and lost his job finally because of illness, it seems unlikely that he was being discriminated against because of union activities. - We find, therefore, that the respondent has not discouraged mem- bership in a labor organization by discriminating in regard to hire or tenure of employment of Floyd Hydrick. D. The alleged refusal to bargain collectively 1. The appropriate unit The complaint alleges that the production employees of the re- spondent, exclusive of clerical and' supervisory employees constitute an appropriate bargaining unit within the meaning of Section 9 (b) of the Act. This is not denied by the respondent.' The-unit alleged corresponds to the group eligible for membership in the Union. We find, that the production employees, exclusive of clerical and supervisory employees,•constitute-a unit` appropriate 'for' the purposes of collective bargaining, and that such unit insures to the employees of the respondent the full benefits of their rights to self-organization and to collective bargaining and otherwise effectuates the policies of the Act. 2. Representation by the Union of the majority in the appropriate unit The complaint alleged that the majority of the employees in the unit had designated the Textile Workers Organizing Committee as their representative for the purpose of collective bargaining prior to June 1, 1937, and at all times thereafter. At the hearing the respond- ent stipulated that the Union had been designated as representative by a majority of the unit as of June 20, 1937, and thereafter. There is insufficient evidence in the record, however, to support a finding that a majority of the employees had designated the Textile Workers Organizing Committee as the exclusive bargaining agent prior to July 20, 1937. 216 NATIONAL LABOR RELATIONS BOARD We find that the Textile Workers Organizing Committee had been designated as representative for purposes of collective bargaining by a majority of the employees in the unit on July 20, 1937, but not before. 3. The alleged refusal to bargain On June 6, 1937, a committee of the Union accompanied by Thomas Sparks, an organizer for the Union, met with A. G. McMil- lan and presented a contract for his consideration. McMillan did not look at the contract at this time but said he would consider it and notify the Union. Ten or fifteen days later McMillan informed the union representative that the respondent could not then enter into an agreement for so long a period (1 year) or any agreement which might cut down its freedom of action; that if such an agreement was entered into, the respondent would be unable to borrow money with which to operate. On August 4, 1937, a second conference was held concerning the proposed agreement at which McMillan said that his attitude was unchanged, especially since business was considerably worse than it had been in June. The wage provision in the contract was the focal point of the discussion, McMillan indicating that the respondent could not make the wage increases provided for. Sparks, the organizer, requested that the respondent make a counter proposal ,and: McMillan said that he might sometime. Sparks said that he would bring in the wage schedules of some other mills for purposes of comparison with the respondent's schedules. This was the last conference held with reference to the proposed contract. Sparks never brought the wage schedules to McMillan, nor sought to carry on any further negotiation concerning a contract. While the respondent's admission that the Union had been desig- nated as their representative by a majority of the employees on July '20,1937, might be the basis for finding that the respondent thereafter was under a duty to bargain collectively with the Union, the re- spondent's actions subsequent to July 20, 1937, the date when the ma- jority was established, were not such as to warrant a finding of a failure to bargain collectively. The last conference appears to have been primarily concerned with the question of a raise in wages upon which the parties were unable to agree. It further appears to have been inconclusive as to both the respondent and the Union, the way being open to both sides for future negotiation. While the respond- ent does not appear to have been as helpful as it might have been to discover some common ground of agreement, the failure to do so was ,not, so far as appears, the result of bad faith. We find, therefore, that the respondent has not refused to bargain collectively with the.representatives of its employees. Upon the basis of the foregoing findings of fact and upon the entire record in the proceeding, the Board makes the following : DECISIONS AND ORDERS 217 CoNCLusioNs OF LAW 1. The operations and business - of the respondent constitute a continuous flow of trade, traffic, and commerce among the several States, within the meaning of Section 2 (6) and (7) of the Act. 2. Textile Workers Organizing Committee, affiliated with the Com- mittee for Industrial Organization, is a labor organization, within the meaning of Section 2 (5) of the Act. 3. The respondent has not refused to bargain collectively with the representatives of its employees, thereby engaging in an unfair labor practice, within the meaning of Section 8 (5) of the Act. 4. The respondent has not discriminated in regard to hire or tenure of employment, thereby discouraging membership in a labor organization and engaging in an unfair labor practice, within the meaning of Section 8 (3) of the Act. 5. The respondent has not, by any refusal to bargain collectively or discrimination in regard to hire or tenure of employment, inter- fered with, restrained, or coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby engaging in any unfair labor practice, within the meaning of Section 8 (1) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of "law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board orders that the complaint against Talladega Cotton Factory, as amended, in so far as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8 (3) and (5) of the Act and that, by a refusal to bargain collectively and by discrimination in regard to hire or tenure of employment, it has engaged in an unfair labor practice within the meaning of Section 8 (1) of the Act, be, and it hereby is, dismissed. MR. EDWIN S. SMITH, dissenting in part : While I subscribe, in general, to the Decision and Order of the Board, I consider that the evidence indicates that Roberta, Ionia, and Docia Curtis, a mother and her two daughters, were discriminatorily discharged because of their union affiliation. All had been employed by the respondent for over 3 years when they were laid off in June 1936. The lay-off took place a few days after they had joined the Union. All three testified that Carroll, the overseer, had asked them whether they had joined the Union. They replied that they had not but would do so as soon as they received their pay. Carroll advised against it on the grounds that they would lose their jobs. Carroll 218 NATIONAL LABOR RELATIONS BOARD testified that he gave no such advice, although he admitted that he might have discussed the Union with them. The respondent con- tended that the Curtises were laid off at the time that the second shift was laid off and that the more efficient workers on the second shift were being put in the place of less efficient workers on the first shift. A number of witnesses were called by the respondent who testified that the two girls were "idlesome," that the mother was old and slow, and that all three did not run as much yarn as most of the winders. Shortly after the lay-off, the whole mill closed for the summer and the Curtises were not reemployed in September when the mill opened. As appears from the discussion in the majority's decision, Carroll, the overseer of the Curtises, undoubtedly had an anti-union attitude which he expressed freely to employees. Whatever deductions may be drawn as to respondent's general tolerance toward union members based on the hiring of strikers who had been on the picket line at they Samoset Mill, such a conclusion cannot carry over to those -of respondent's supervisors whose own anti-union animus is manifest., The evidence as to the efficiency of the three Curtises, comm,, as,it does from fellow employees called as witnesses by the respondent, seems far less than conclusive. Moreover, the testimony itself is vague. No precise information 'is furnished by anyone in a super- visory position regarding the efficiency of these women relative to other employees. The fact that the three Curtises were laid off shortly after joining the Union by Carroll, who had questioned them on their union affiliation, and that he refused to reinstate them, war- rants the conclusion that the lay-off and the refusal to reinstate were both discriminatory.