Revolution Cotton Mills

In the Matter of REVOLUTION COTTON MILLS and TEXTILE WORKERS ORGANIZING COMMITTEE Case No. C-697.-Decided October 24, 1938 Cotton Textile Industry-Interference, Restraint , and Coercion: propaganda against union ; propaganda discrediting union representatives ; expressed opposi- tion to outside labor organizations ; persuading employees to refrain from joining one organization ; intimidation of witness during course of hearing-Company- Dominated Union: domination of and interference with administration ; support ; soliciting membership by supervisory employees ; disestablished, as' agency for collective bargaining-Discrimination: charges of, not sustained. Mr. Samuel M. Spencer, for the Board. Brooks, McLendon d Holderness, by Mr. L. P. McLendon, and Stern d Stern, by Mr. S. J. Stern, of Greensboro, N. C., for the re- spondent. Mr. C. G. Shaw, of Greensboro, N. C., and Mr. Anthony W. Smith, of Washington, D. C., for the T. W. O. C. Shuping cC Hampton, by Mr. C. L. Shuping, and. Mr. G. C. of Greensboro, N. C., for the R. F. W. U. Mr. Arnold R. Cutler, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Textile Workers Organizing Committee, herein called the T. W. O. C., the National Labor Relations Board, herein called the Board, by Bennet F. Schauf- fler, Regional Director for the Fifth Region (Baltimore, Maryland), issued its complaint, dated November 29, 1937, against Revolution Cotton Mills Company,' Greensboro, North Carolina, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act.- 2 Incorrectly designated in the complaint as Revolution Cotton Mills. 9 N. L. R. B., No. 42. 468 DECISIONS AND ORDERS 469 In respect to the unfair labor practices the complaint alleged in substance (1) that the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act; (2) that the respondent on, or about Septem- ber 8, 1937, discharged and refused to reinstate one of its employees, Z. V. Myrick, because of his membership in and activities on behalf of the T. W. 0. C.; and (3) that the respondent dominated and inter- fered with the formation and administration of a labor organization known as Revolution Flannel Workers Union, herein called the R. F. W. U., and contributed financial and other support to it. Copies of the complaint and accompanying notice of hearing were duly served upon the respondent, upon the R. F. W. U., and upon the T. W. 0. C. Thereafter the respondent filed an answer to the complaint in which it denied that it had engaged in the unfair labor practices. The respondent also filed a motion for a bill of particulars as to the unfair labor practices alleged in the complaint, except those referring to Z. V. Myrick. Thereafter the R. F. W. U. filed with the Regional -Director a motion to intervene, an answer to the complaint, in .which it denied the allegations therein affecting it, a cross-complaint ,2 and a petition for certification as the representative of the respondent's employees. Pursuant to the notice, a hearing was held at Greensboro, North Carolina, from December 9 to 15, 1937, before J. M. Brown, the Trial Examiner duly designated by the Board. At the commencement of the hearing the Trial Examiner granted the motion of the R. F. W. U. to intervene. The Board, the respondent, and the R. F. W. U. were represented by counsel, and the T. W. 0. C. by one of its representa- tives. 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. At the commencement of the hearing the respondent renewed its motion for a bill of par- ticulars and made various motions to dismiss the complaint on the grounds that the complaint did not allege that a labor dispute existed, and did not allege facts to confer jurisdiction upon the Board. These motions were denied by the Trial Examiner. At the close of the hear- ing counsel for the Board moved that the pleadings be conformed to the proof. The motion was granted'by the Trial Examiner; Counsel for the respondent 'renewed and made various motions to dismiss the complaint. These motions were denied by the Trial Examiner as iv ere, the motions of counsel for the R. F. W. U. that- the charges of the complaint be dismissed in so far as it was affected, that judgment be rendered on its cross-complaint, and that- the R. F. W. U. be certified. During the course of the hearing the Trial Examiner made 2 At the hearing the respondent submitted an answer to the cross -complaint. 470 NATIONAL LABOR RELATIONS BOARD numerous rulings on other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner, and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On May 24, 1938, the Trial Examiner filed his Intermediate Report, in which he found that the respondent had engaged in the unfair labor practices alleged in the complaint. He accordingly recom- mended that the respondent cease and desist from engaging in the unfair labor practices; that it cease giving recognition to and that it disestablish the R. F. W. U. as the collective bargaining repre- sentative for any of its employees, and that it reinstate Z. V. Myrick with back pay. Thereafter the respondent and the R. F. W. U. filed exceptions to the Intermediate Report and to various rulings of the Trial Examiner. The respondent also moved that the record be amended, or that the case be reopened, to incorporate therein certain affidavits alleged to contain further evidence relating to Myrick's discharge and the non- supervisory character of certain employees who were active in behalf of the R. F. W. U., as well as additional evidence relating to such employees. Since the respondent had ample opportunity to introduce such evidence during the course of the hearing, the motion is denied. Pursuant to notice, a hearing was held before the Board on June 30, 1938, in Washington, District of Columbia, for the purpose of oral argument. The respondent, the T. W. O. C., and the R. F. W. U. were represented by counsel and participated in the oral argument. At the hearing, pursuant to permission granted by the Board, the respondent and the R. F. W. U. submitted briefs, which the Board has considered. The Board has reviewed the exceptions to the Inter- mediate Report and, except as herein noted, finds them to be without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is a corporation organized under the laws of the State of North Carolina with its office and place of business at Greensboro, North Carolina. It is engaged in the manufacture of cotton flannels. The respondent purchases its principal raw material, cotton, from firms located throughout the United States. It purchases other raw materials and supplies from sources outside the State of North Carolina, such as chemicals from Iowa, oil from New Jersey, and machinery from Massachusetts. The respondent ships about 75 per DECISIONS AND ORDERS 471 cent of its finished products to points outside the State of North Carolina. The value of the finished products is approximately $3,375,000 per year. The entire output is sold through the Cone Export and Com- mission Company, a dry-goods commission house which is controlled by the Cone interests which control the respondent. The commis- sion house has its offices in New, York City and Greensboro, North Carolina. Between June 29 and December 15, 1937, the respondent employed an average of approximately 1,250 employees. H. THE ORGANIZATIONS INVOLVED Textile Workers Organizing Committee is a labor organization affiliated with the Committee for Industrial Organization, admitting to its membership all employees of the respondent except supervisory employees. Revolution Flannel Workers Union is a labor organization without any outside affiliation. It admits to membership only employees of the respondent, exclusive of superintendents, overseers, office em- ployees, officers, and agents. III. THE UNFAIR LABOR PRACTICES A. Backgrou441 of the unfair labor practices In 1930 the United Textile Workers of America, herein called U. T. W. A., affiliated with the American Federation of Labor, endeav- ored to organize the employees of the respondent. It appears that this was the occasion for considerable anti-union activity on the part of the respondent. At that time many employees who did not give up their membership in the U. T. W. A. were discharged and ejected from the company houses. C. F. Phillips, the assistant superintend- ent of the respondent, estimated that some 25 or 30 employees were discharged and some 7 or 8 families were ejected. The respondent did not controvert the testimony of witnesses for the Board that these employees were so treated because of their activities on behalf of the U. T. W. A. In 1933 union activities were renewed in Greensboro and were on this occasion subject to attack in the Textorian, a newspaper circu- lated free of charge among the respondent's employees, and admit- tedly owned and controlled by the Cone interests. In the issue of August 25, 1933, an article appeared entitled "Open Letter from Mr. Bernard M. Cone, Mill Executive, to His Employees." The letter states in part: But, taking advantage of a statement in the [Cotton Textile] Code that workers shall have the right to organize, our old bally- 472 I NATIONAL LABOR RELATIONS BOARD hoo friends-or perhaps a set of new ones-have come into our midst and are once more trying to persuade our people to join their union and contribute to their beneficent and philanthropic mission in life by supporting them with dues, initiation fees and free will offerings . . . We honestly believe that the Unions are far more arbitrary, unreasonable and dictatorial, and are far harder taskmasters than we are, and have your real interest far less at heart, and we feel you have nothing to gain by joining them . . . Have you ever stopped to compare these strangers ... with the mill officials, the superintendents, the overseers .. . Which of these groups . . . are trying to line their pockets with your money and when hard times come and their revenue ceases will desert you like rats leaving a sinking ship? [Italics ours.] The conclusion is inescapable that both in 1930 and in 1933 the acts of the respondent and its controlling interests were directed toward destroying all organizational efforts of the employees of the respondent by "strangers." Although these events, occurring before the effective date of the Act, afford no basis for a charge of unfair labor practices thereunder, they are important, however, in consider- ing the significance of the respondent's actions in connection with its employees renewed organizational activities.3 B. Revolution Flannel Workers Union About the middle of April 1937, organizational activities again -began at Greensboro. This time they were carried on by the T. W. 0. C. During the early stages it conducted a successful membership campaign among the employees of the respondent. The R. F. W. U. first took form on June 29, 1937. According to the testimony of two loom fixers, James E. Smith and J. D. Hughes, they, together with a third employee, J. A. Hill, decided on that day to organize a union of their own on the theory that it would cost less than a union affiliated with some national body. Hughes secured -the use of the lodge hall from the janitor and the first meeting was held the same evening and attended by 20 employees. Thereupon the R. F. W. U. started a membership campaign and succeeded in obtaining some 527 employees as members within the short period of 2 weeks. Although it is clear that the respondent took no part in the formation of the R. F. W. U., its open encourage- ment of this union combined with its attacks upon the T. W. 0. C. left no doubt in the minds of its employees that it favored the former organization. BJefery-DeTVitt Insulator Co v. ratwial labor Relations Board, 91 F. (2d) 134 C. C. A. 4th), cert. den., 58 S. Ct. 55. ' DECISIONS AND ORDERS 473 Prior to the effective date of the Act, certain unions had engaged in two organizing campaigns at the mill of the respondent. On each of these occasions the respondent had indicated its hostility toward unions. Nevertheless, the R. F. W. U., despite the knowledge of such hostility, proceeded to organize without fear of reprisal. The solici- tation of members for the-R. F. W. U. was carried on for the most part at the mill during working hours. Seven employees,4 who were witnesses for the respondent, took an active part in such solicitation and circulated membership petitions throughout the mill, in many instances in departments other than their own. Together they suc- ceeded in signing up some 250, approximately one-third of the entire nienibership of the R. F. W. U. Of the employees who circulated the petitions or, in. some instances, cards, for the R. F. W. U., in the mill, during the working hours, none was ever reprimanded. These employees testified that the reason they were not reprimanded was because they were careful to keep their activity from the attention of the supervisory employees. That such a group of employees could have wandered about the plant in various departments, away from their duties, and during the working hours, without the supervisory employees being aware of their activi- ties seems improbable. The respondent's tacit acquiescence in the use of its time and property by R. F. W. U. organizers to further the membership 'campaign of the R. F. W. U. clearly amounted to a contribution of support to that organization. - The activities of J. B. Reynolds in the formation of the R. F. W. U. calls for particular comment. Edison S. Reeves, an employee, testi- fied that Reynolds was the head overhauler in the card room and that Reynolds himself had so informed him. Lawrence Greene, another employee, testified that Reynolds "had charge of the boys that were overhauling machines," that he had three or four helping him, and that these men took orders from him. C. F. Phillips, the assistant superintendent of the mill, denied that Reynolds had others working under his supervision, but then qualified the denial by saying that he "has [others working under his supervision] whenever he goes to over- haul a machine." Reynolds during direct examination denied that he had anyone working under him but upon cross-examination stated that lie had from one to four helpers. When asked what would happen to a person whom he recommended should be discharged, Reynolds refused to commit himself, first saying, "we don't have that kind of people out there," and after being admonished by the Trial Examiner to ans«*er the question, stating, "They always send me someone who will do the work." From the evidence it is clear that Reynolds had from one to five employees working under him, that on certain occa- 4 J. B. Reynolds , Delpus Phillips ( Delphus Phillips ), J. C. Harris, Lennie Ritter ( Lennie Riddle ), L. C. Godfrey, L. W. Ferguson, and Merl Hartzoge 474 NATIONAL LABOR RELATIONS BOARD sions he did exercise supervision over them, and that he did have some power to recommend a discharge. We have in similar instances held that such evidence supports the conclusion that such an employee must be classed as a supervisor. Reeves testified that on July 9, 1937, Reynolds came over to him and asked him to sign a paper; that Reynolds said that its purpose was to organize a union to keep the C. I. 0. out; that when Reeves stated that he would not sign, Reynolds said, "Well, the company would rather see your name on it, than see it off"; and that when Reeves still would not sign it Reynolds said, "Well, if you think anything of your job you will sign it." Reynolds admitted that he asked Reeves to sign one of the petitions but denied making the other statements attributed to him. However, Greene, who was present at the time of the conversation, corroborated Reeves' testimony. We, therefore, find that Reynolds made the statement attributed to him by Reeves. The activities of other supervisory employees were likewise intended to promote the success of the R. F. W. U. John Lowe, a second fore- man in the card room, told Ernest Amos that "Mr. Cone said he would not tell anyone to join the union or not to join, but then anything would happen. If the mill would shut down, he would take care of the ones that stuck to him." It is evident from the cross-examination of Amos by counsel for the respondent that Lowe was working for the R. F. W. U., and it is therefore apparent that in referring to "the ones that stuck to [Cone]," he was speaking of those who joined the R. F. W. U. It is significant that Lowe did not testify nor was this evidence re- butted. The effect of such a warning by Lowe cannot be overempha- sized, coming at a time when the installation of improvements in the card room necessitated the discharge of many employees. Wesley Vernon also related an incident of solicitation for the R. F. W. U. by one of the respondent's supervisory employees. About September 15, 1937, his overseer, J. B. Blackwood, met him in the alleyway between the machines, and said, "I am not trying to attend to your business, but it might be a good idea for you to join this union here," meaning the R. F. W. U. When Vernon protested that he did not have to join any union in order to keep his job, Blackwood said, "No, I don't think that anybody would be fired for it, but there is more than one way of choking a cat to death than butter." This testimony regarding Blackwood, as in the case of Amos, was not rebutted. Black- wood did not testify at the hearing. Following the testimony of William M. Jones,5 a witness for the Board at the hearing, as to the events of 1936, J. S. Leonard, his over- seer, approached him on his return to work and told him that he had "made an ass" out of himself, that he should have told the attor- 5 Also referred to in the record as Will B. Jones. DECISIONS AND ORDERS 475 neys there "was nothing to it." On the following day Leonard ques- tioned Jones with respect to their conversation. When Jones told Leonard, "you know what you said to me," Leonard stated that "since my wife died I am apt to say things I ought not to." Although Leonard testified earlier at the hearing, he was not called to rebut this testimony. Regardless of the excuse offered by Leonard, it is clear that his statements were calculated to intimidate the witness against testifying at the hearing. We have described above the relationship between the respondent and the Textorian. On October 29, 1937, there appeared in this newspaper an editorial, entitled "Think of Tomorrow." It reads in part : Reckless speculation is dangerous-everyone agrees to that; but most of us are prone to think of speculation in terms of money. Heedless gambling is by no means confined to_ the tak- ing of reckless chances with money. One may by his actions or associations with other people place himself in as great jeop- ardy as he can by investing his last dollar in wild cat stock. He-can harm himself just as easily by repudiating old friends and established principles of relationship and accepting the prof- fered advice of strangers and new theories of conduct as he can by selling his valuable possessions and investing his all in fly by night financial schemes. [Italics ours.] ' On November 26, 1937 , several articles attacking the Committee for Industrial Organization appeared in the Textorian . One of the articles, a purported speech delivered on November 9, 1937 , by a high official of the State of Ohio relating to the steel strike situation in that State, reads in part : The [steel] companies advanced one argument which I could not answer. They took the position that a written contract would bind them, but would not bind the C. I. O. leadership ... Some of the most vicious of the C. I. O. leaders are known Communists . . . Their philosophy is not the elevation of American labor, but it is violence , civil war, and revolution ... There was one band of some two thousand men [C. I. 0.] from Akron alone who attempted an armed invasion of Youngs- town with blood in their eyes and violence on their lips. The other article, a purported reprint of an editorial from the-Amer- ican Wool and Cotton Reporter , entitled "Aspinook Company Will Liquidate," related the story of a certain cotton mill which, although in a precarious financial position, had nevertheless continued to op- erate until the Committee for Industrial Organization had begun an organization drive, after which the operations of the mill were so obstructed that the management was compelled to liquidate the mill. 476 NATIONAL LABOR RELATIONS BOARD Although couched in general terms, the "strangers" alluded to in the first editorial quoted above appear to be the same "strangers" to whom Cone alluded in 1933, namely, outside organizers. Pub- lished in the, midst of the R. F. W. U. organizing campaign, the warning not to repudiate "old friends" for the advice of "strangers" could only have reference to the rivalry between the R. F. W. U. and the T. W. 0. C. The other articles mentioned above clearly ex- pressed the opposition of the respondent to the T. W. 0. C. Under the circumstances, the free choice of employees was effectively- curbed both by the manner in which the R. F. W. U. was fostered and the manner in which the T. W. 0. C. was maligned. The respondent contends that the editorials of the newspaper reflected the personal opinions of its editor and manager, M. W. Heiss. However, Heiss is also assistant secretary of the respondent and in charge of personnel records. Whether Heiss as editor could divorce himself from Heiss as supervisor over the personnel records, it is improbable that the employees would conceive in him a dual personality whose thoughts in one capacity were not his thoughts in the other. To them Heiss represented the respondent, and the policy he expressed, whether at the mill or through a news organ identified with the mill, was that of the respondent. 'Under these circum- stances, the article's undoubtedly served to intimidate the employees of the respondent and amounted to support and encouragement of the R. F. W. U. We find that the respondent has dominated and' interfered with the administration of the R. F. W. U., and has contributed support to it; and that by the above acts it has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The allegedly discriminatory discharge Z. V. Myrick was discharged on September 8, 1937. He had been employed by the respondent for about 18 years, last working as a sweeper in the card room. Myrick had joined the T. W. 0. C. about August 8, 1937, and was active in its affairs. Myrick's duties necessitated his bringing waste from the card room to the waste house, where Thomas Klegg worked. Klegg testified that about September 1, 1937, J. S. Leonard, the foreman of the card room, asked Klegg why Myrick and Walker, another employee, were loafing in the waste house and stated that he understood that they were signing employees for the T. W. 0. C. Leonard admitted asking about Myrick's loafing. Although not specifically denying the remainder of his alleged statement, Leonard denied asking Klegg whether Myrick had tried to sign Klegg for the T. W. 0. C. If Leonard's alleged state- ment was an indication of an intent to lay off both Myrick and Walker DECIS[ONS AND ORDERS 477 because of their union activity, it was not completely carried out as it does not appear that Walker was ever laid off or discharged. The evi- dence shows that Leonard had on previous occasions asked Klegg about the loafing of Myrick and Walker in the waste house. On. September 3, 1937, E. F. Reeves gave Myrick a union paper, which Myrick in turn gave to Paul Smith,'also asking him to join the T. W. O. C. Smith subsequently returned for another 'copy of the paper stating that he had given his copy to Leonard. Five days later Myrick was discharged. Clyde Hammer, who had been "doffing cans" in the card room, was put in Myrick's place as a sweeper. - The respondent contends that due to the installation of new long draft machinery the number of employees in the card room had to be reduced and the staff reorganized. Between July 26 and November 25, in addition to Myrick, 14 employees had been laid off in the card room due to these improvements, 3 of the lay-offs occurring after Myrick's discharge. All of the slips covering the terminations of employment, which were introduced in evidence, uniformly state that the employees were laid off due to the installation of long draft. In addition, it does not appear that any of the 14 other employees who were laid off be- longed to the T. W. O. C. No seniority rules were followed at the "respondent's mill. Even assuming that Leonard did get the copy of the union paper, we are not satisfied from all the evidence that Myrick was discharged because of his activities in behalf of the T. W. O. C. rather than as a result of the reorganization of the card room following the installation of the long draft machinery.. We will dismiss the complaint in so far as it alleges that the respondent discriminated against Z. V. Myrick. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III B 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 obstructing commerce and the free flow of commerce. V. THE REMEDY We have found that the respondent has dominated and interfered with the administration of the R. F. W. U. and has contributed sup- port to it. Under these circumstances, the R. F. W. U. cannot and does not offer to the respondent's employees the free representation for collective bargaining which is guaranteed by the Act. We shall, therefore, order the respondent to disestablish the R. F. W. U. as the representative of the respondent's employees for the purposes of collec- tive bargaining. 478 NATIONAL LABOR RELATIONS BOARD Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Textile Workers Organizing Committee and Revolution Flannel Workers Union are labor organizations within the meaning of Section 2 (5) of the Act. 2. The respondent, by dominating and interfering with the admin- istration of Revolution Flannel Workers Union, and by contributing support to said organization, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. - 3. The respondent, by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. - 5. The respondent has not discriminated in regard to the hire or tenure of employment or any term or condition of employment of Z. V. Myrick, and has not thereby discouraged membership in the Textile Workers Organizing Committee, within the meaning of Section 8 (3) 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 hereby orders that the respondent, Revolution Cotton Mills Company, and its officers , agents, successors, and assigns shall 1. Cease and desist from : (a) In any manner dominating or interfering with the administra- tion of - Revolution Flannel Workers Union, or the formation or administration of any other labor organization of its employees, and from contributing support to Revolution Flannel Workers Union or to any other labor organization of its employees; (b) In any other manner interfering with, restraining , or coercing its employees in the exercise of the right to self -organization, to form, join, or assist labor organizations , to bargain collectively through representatives of their own choosing , and to engage in con- certed activities for the purposes of collective bargaining or other mutual aid or protection , as guaranteed by Section 7 of the Act. 2. Take the following affirmative action which the Board • finds will effectuate the policies of the Act: (a) Disestablish Revolution Flannel Workers Union as a repre- sentative of its employees for the purpose of dealing with the re- DECISIONS AND ORDERS 479 spondent concerning grievances , labor disputes , wages, rates of pay, hours of employment , or other conditions of employment; (b) Post immediately, and keep posted for a period of at least thirty (30) consecutive days from the date of posting , notices to its employees in conspicuous places throughout its mill stating that the respondent will cease and desist in the manner set forth in 1 (a)_ and (b), and that it will take the affirmative action set forth in 2 (a) of this Order; and (c) Notify the Regional Director for the Fifth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. And it is further ordered that the complaint, in so far as it alleges that the respondent has engaged in unfair labor practices , within the meaning of Section 8 (3) of the Act, be, and the same hereby is, dismissed. CHAIRMAN MADDEN took no part in the consideration of the above Decision and Order.