Massachusetts Knitting Mills Corp.

In the Matter Of MASSACHUSETTS KNITTING MILLS CORPORATION and JAMES DIL•LEHAY ; HARDIN TRUELOVE ; SHIRLEY PRIMM ; ERNEST ADAMS; WILLIAM CLYMORE; PAUL LINDSEY ; ELDRIDGE GRIMMITT; AND GEORGE PAGE. Case No. C-700.-Decided November 8, 1939 Silk Hosiery Ma- ufacturing Industry-Interference, Restraint, and Coercion: ant-union statements by supervisors ; interrogation of employees regarding union activities ; threats of discharge if employees did not cease union activ- ities ; temporary lay-off of employee who continued union activities despite warning; speech by president of plant warning employees plant would close unless they ceased concerted activities-Discrimination : charges of , dismissed. Mr. Berdon Bell and Mr. Charles Diimmock, for the Board. Hirsch and Smith, by Mr. Harold Hirsch, Mr. Edward Cody, Mr. Garnet Andrews, Mr. Andrew Ewing, and Mr. W. P. Jackson, of Atlanta, Ga., for the respondent. Mr. Al. A. Peebles, of Columbia, -Tenn., for the charging employees. Mr. C. Carlton Fry, of Columbia, Tenn., for Mr. Huston Cox. Mr. H. G. B. King, of Chattanooga, Tenn., for the Union. Miss Anne E. Freeling, of counsel to the Board. DECISION AND ORDER STATEMENT OF TIIE CASE Upon charges and amended charges duly filed by James Dillehay on behalf of himself, Hardin Truelove, Shirley Primm, Ernest Adams, William Clymore, Paul Lindsey, Eldridge Grimmitt, and George Page, herein called the charging employees, the National Labor Relations Board, herein called the Board, by the Regional Director for the Tenth Region (Atlanta, Georgia), issued its com- plaint dated March 11, 1938, against Massachusetts Knitting Mills Corporation,' Columbia, Tennessee, herein called the respondent, al- leging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of 1 Incorrectly designated in the complaint as Massachusetts Knitting Mills. 17 N. L. R. B., No. 34. 447 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat . 449, herein called the Act. Copies of the complaint and notice of hearing thereon were duly served upon the respondent and upon James Dillehay. The complaint alleged in substance that following March 1, 1937, the respondent discharged and refused to reinstate the charging employees because of their union activity , thereby discouraging membership in a labor organization by discrimination in regard to their hire and tenure of employment ; and that the respondent, by its officials, officers, and agents, advised its employees not to join American Federation of Hosiery Workers, herein called the ' Union, made veiled threats as to what would happen if they organized, and warned them to give up their concerted activities within a specified time, thereby interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. On March 30 the respondent filed its answer to the complaint , denying that it had engaged in the alleged unfair labor practices. Pursuant to notice, a hearing was held in Columbia , Tennessee, on April 14 , 15, and 16, 1938, before Mapes Davidson , the Trial Examiner duly designated by the Board . The Board, the respondent, the charging employees , and the Union were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. During the hearing, by consent of all the parties and by ruling of the Trial Examiner , the complaint was amended to allege, and the answer was amended to deny, that the respondent discouraged membership in a labor organization by discrimination in regard to the hire and tenure of employment of Huston Cox, herein called a charging employee. By consent of all the parties and by ruling of the Trial Examiner, the complaint was dismissed as to Paul Lindsey. At the conclusion of the Board's case , the Trial Examiner granted a motion by counsel for the Board to amend the complaint to conform to the proof . At the commencement of the hearing and at the conclusion of the Board 's case, the respondent moved to dismiss the complaint as to the alleged unfair labor practices within Section 8 (3) of the Act. At the conclusion of the hearing , the respondent renewed this motion and also moved to dismiss the entire complaint. The Trial Examiner denied these motions. During the course of the hearing, the Trial Examiner made several other rulings on mo- tions 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 June 6, 1938, the Trial Examiner filed his Intermediate Report, finding that the respondent had engaged in and was engaging in i MASSACHUSETTS KNITTING MILLS CORPORATION 449 unfair' labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act, and recommending that the respondent cease and desist therefrom, and, affirmatively, reinstate the charging employees with back pay. On June 18, 1938, the respondent filed exceptions to the Inter- mediate Report and, on July 16, 1939, filed a brief in support of its exceptions. Pursuant to notice, oral argument was had before the Board at Washington, D. C., on January 19, 1939. The respondent appeared by counsel and presented oral argument. The Board has reviewed the respondent's exceptions and brief and, save for the exceptions which are consistent with the findings, conclusions, and order set forth below, 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, Massachusetts Knitting Mills Corporation, is en- gaged in the business of manufacturing full-fashioned silk hosiery. It was organized in July 1931 under the laws of the State of Mas- sachusetts, and is also licensed to do business in the State of Ten- nessee. The respondent has four plants, three in Massachusetts and one in Tennessee. The respondent's executive offices are located in Boston, Massachusetts.. The only plant involved in this proceeding is the one located just outside the city limits of Columbia, Tennessee. The principal raw material used at this plant is silk, although some cotton is also used. Approximately 98 per cent of the raw materials and supplies used at the. Columbia plant are obtained. from outside the State of Ten- nessee. Approximately 50 per cent of the machinery used at the Columbia plant was purchased outside Tennessee. All the products manufactured at the Columbia plant are shipped to the respondent's plant at Boston, Massachusetts, where they are dyed, packed, in- spected, and finished. The respondent employs approximately 500 people at its Columbia plant, of whom approximately 150 are employed on the night shift. II. THE LABOR ORGANIZATIONS INVOLVED American Federation of Hosiery Workers is a labor organization affiliated with the American Federation of Labor. It admits to mem- bership employees of the respondent. The day-shift committee and, the night-shift committee are un- affiliated labor organizations representing employees of the respondent 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on the day and night shifts respectively. The joint committee is an unaffiliated labor organization representing employees of the re- spondent on both shifts. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion The Union began an organizing campaign among the respondent's employees at the Columbia plant during the latter part of 1935 or the early part of 1936. The organizers, wishing to escape the re- spondent's attention at this time, held meetings in remote, out-of- the-way places. They held a meeting in the summer of 1936 at a secluded spot on the bank of a river. Shortly after this meeting, Saul Kaplan, general manager of the plant, summoned Grimmitt to his office. J. S. Gordon, president of the respondent, was also present. Grimmitt testified that Kaplan "talked to me about, I guess, an hour, and told me if I attended any more, he would fire me .. . so, I promised him I would not have anything else to do with the union, and he let me go back to work." Kaplan testified that he did not recall this conversation, and Gordon was not questioned about it. Grimmitt attended a union meeting about a week later in Frank- lin, Tennessee. He was discharged the following day. Grimmitt testified that Kaplan told him, upon his discharge, that it was "for going to that union meeting and breaking my promise to him." Kaplan reinstated Grimmitt a day or two later on the condition, Grimmitt claims, that "I would not have anything to do with the union, that if I seen or heard anything that would hurt the mill, I was to come and report it to him." Kaplan's explanation for Grim- mitt's discharge was that in walking through the plant, Kaplan noticed that certain employees, "were not just themselves . . . I asked them to come in the office, and spoke to them about it . . . some of them were not frank. I could see they were holding some- thing from me. I laid them off for one night ..." Kaplan denied that Grimmitt's discharge was due to his union activities, or, in fact, that he knew of any such activities. In this connection, the following colloquy took place: Q. Such as when you talked to Mr. Grimmit about his having attended a meeting in Franklin, Tennessee, of the American Federation of Hosiery Workers, you knew he had attended. it, didn't you? A. No, I didn't know anything at all about it. Q. But you asked him about it. A. I just asked him about it. . . .. Not as to the American Fed- eration of Labor. There was no question asked like that. MASSACHUSETTS KNITTING MILLS CORPORATION 451 Q. You did ask him about attending a meeting of a labor organization? A. I just asked him about attending a meeting. Q. You were quite interested to learn whether he attended or not? A. I was interested to know whether he attended the meeting. Upon the basis of Grimmitt's credible testimony and Kaplan's evasive explanation thereof, we find that Kaplan' questioned Grimmitt about union activities, threatened him with discharge if he continued such activities,-and laid him off because, despite this threat and a promise by Grimmitt to cease his union activities, Grimmitt had attended a union meeting. Page testified that Kaplan called him to the office after the meeting in Franklin and told him "to tell the truth about what hap- pened up at that meeting ... and everything would be all right." Kaplan did not deny this conversation. We find that this testimony of Page is substantially true. Primm testified that he was also called to the office and questioned about union activities by Kaplan, J. S. Gordon, and his brother, B. D. Gordon, secretary-treasurer of the respondent. Primm stated that "they wanted me to tell them where we met the union men, what all we had done, told me if I wanted a job I would have to own up to it, so I owned up to it and went back to work.... They said if my checks run down a little and I needed a little help, if I would tell them things they would make it up." Neither Kaplan nor J. S. Gordon testified about this conversation, and B. D. Gordon did not appear as a witness. We find that this testimony of Primm is substantially true. Truelove and Cox both testified, about an occasion in January or February 1937, when they were both called to the office by Kaplan and J. S. Gordon, questioned about union activities in the plant, and warned that their distribution of membership cards and other union activities must cease. Although Gordon and Kaplan denied that this conversation took place, in view of all the testimony dis- cussed above regarding conferences of the same general tenor, we find this testimony of Truelove and Cox to be persuasive and we therefore reject the denials of Kaplan and Gordon. In January 1937, the joint committee 2 called a strike and then negotiated it settlement thereof with the respondent within a few days. During the strike many employees became affiliated with the 2 A strike that took place among the employees at the Columbia plant in 1934 had been settled by,negotiations between the respondent and a committee selected by the workers to represent them. This committee ceased to function thereafer . Toward the end of 1936, the employees on the day and night shifts elected new committees to represent them. These committees acted jointly except on matters that affected employees on one shift only. 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union. The Union postponed formal organization of the Columbia employees, however, preparing, instead, simultaneously to organize the employees at all of the respondent's plants. The credible evidence compels the conclusion that the respondent sought to thwart the Union's organizational campaign at Columbia. J. S. Gordon had come to Columbia during the strike and re- turned to Boston at its close. A few days later, in a long-distance telephone conversation, Kaplan informed Gordon that the employees at Columbia were still restive and dissatisfied. Gordon returned to Columbia immediately, assembled the em- ployees, and delivered a talk to them. Dillehay testified to Gordon's speech as follows : [He said] the mill was closer to closing right then than it ever had been before. At that time he said before he would have it organized or be bothered with outside agitators, he would tear it down brick by brick and move it away . . . he said it had always been run without trouble or outside agitators, and he thought he could continue to do so .. . The other charging employees, all of whom heard the speech, testi- fied to the same effect. Gordon's own version of this speech was that he stated, after pointing out how much he had done for the employees, that Here comes along some stranger that tries-an outsider that tries to agitate you, and you fall for it. I believe you should have more confidence in me than in an outsider . . . If you don't, then we can't go along any further; we will have to close the mill down. Gordon testified further that by "outsider" he had reference to one Dobbs, superintendent of a competing plant in Alabama. Gordon claims that the purpose of his talk was to prevent Dobbs from en- ticing employees of the respondent. Gordon's precipitate trip from Boston to Columbia, the timing of his talk in relation to the activity of the Union, the method of addressing the employees, the substance of his speech as given by the mutually corroborative testimony of the employees in his audience, the terms-"stranger," "outsider," "agitate"-and the threat to close the plant admittedly employed in the address, and finally, the previ- ous anti-union statements of the respondent, leave no doubt that Gor- don sought to discourage affiliation with the Union by threatening to close the plant. Gordon's conversation with several members of the committee at the close of his talk to the assembled employees further bears out our conclusion as to the purpose of this talk and -provides another instance of interference, restraint, and coercion. MASSACHUSETTS KNITTING MILLS CORPORATION 453 Dillehay, Truelove, Adams, and Clymore testified in substance that after the other employees resumed work, Gordon stated to the wit- nesses that he would give them 15 minutes in which to dispose of their union cards. They testified further, that at the end of this period, Gordon returned, shook their hands, and asked them to re- sume work. Gordon denied that he made reference to, or had knowl- edge of, any union cards. He testified that he spoke to the com- mitteemen as follows: I am through talking; I am not going to talk any more. If you want to keep this mill open, say so now. If you don't want to, I am going to close down. I will give you fifteen minutes to decide on it. Gordon's own version reveals that his statement to the committee- men constituted a threat that he would close the plant if the em- ployees did not cease their concerted activities. We find that by the afore-mentioned acts, including the questioning of Grimmitt about union activities, threatening to discharge him if he continued such activities, and laying him off because he did con- tinue such activities, questioning Page about a union meeting, ques- tioning Primm about union activities and offering to reward him if he would keep the respondent informed of such activities, questioning Truelove and Cox about union activities and warning them that their efforts to obtain more union members must cease, snaking a speech to the employees warning them that the plant would be closed if they organized a union, and warning the committeemen that the plant would be closed if they did not cease their concerted activities, the respondent, by its officials, officers, and agents, has interfered with, restrained, and coerced its employees in the exercise of the right to self-organization, to form, join, and assist labor organiza- tions, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining and other mutual aid and protection. B. The alleged discrimination On March 2, 1937, the employees of the night shift legging depart- ment went on strike because the respondent refused to institute a system of alternating shifts. The respondent thereupon discontinued the entire night shift. The strikers began making application for reinstatement 2 or 3 days after the walk-out began. Work on the night shift was re- sumed gradually. Most of the strikers applied several times or waited in the office until the machines they had operated prior to the strike were started, whereupon they were reinstated. Most of the 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strikers were reinstated within about a week after the beginning of the strike. Within 6 weeks production on the night shift had be- come normal. The plant operated at full capacity from that time to the date of the hearing. All striking employees, with the excep- tion of the charging employees, have been reinstated.3 The charging employees employed by the respondent for periods of between 21/2 and 5 years, had done satisfactory work. All but Prinnm, Page, and Cox were members of the night-shift committee. All except Cox were members of the committee that c6hfei red with Kaplan on the night of the walk-out. All had signed applications for membership in the Union. Several had been active in soliciting membership in the Union, and had been warned by the management to cease such activity. All the charging employees had applied for reinstatement within the first week after the walk-out began. Some of them made several applications thereafter. All the charging employees left Columbia in order to obtain employment elsewhere within about 2 weeks after the walk-out occurred. Kaplan testified that when the charging employees first applied for reinstatement, their particular jobs were not yet available, and that he so informed them. He further testified that at the time they applied, "my mode of conversation was definitely to make every fel- low understand, while I did not have any work at the time, they had plenty of hope there would be some in the future." Most of the charging employees made other applications at various times in the course of the ensuing 6 months. Kaplan testified that at the times such applications were made, their machines had not yet been started or else their jobs had already been filled. The testimony of the various charging employees with regard to their several applications for reinstatement is at great variance. Several corroborate Kaplan's claim that he told them at the time they applied that lie had no work for them at that time, although they apparently did not gain the im- pression that "they had plenty of hope there would be some in the future." The respondent reinstated Lindsey, a member of the night-shift committee, and other employees who had conferred with Kaplan on the night of the walk-out. The evidence does not show that Kaplan was ready to start work on the machines, which the charging em- ployees had operated prior to the strike, at the time the charging employees first applied for reinstatement. Nor does the evidence refute Kaplan's claim that, upon subsequent application between a week and 6 months after the walk-out, the former positions of tin- 3 Page, a charging employee, was reinstated and subsequently discharged. The special circumstances with respect to Page's case are set forth below. MASSACHUSETTS KNITTING MILLS CORPORATION 455 successful applicants were either not yet available or else had already been filled with other applicants. It does not appear that the re- spondent notified any persons of vacancies. Accordingly, its failure to send for the charging employees, particularly after they left town, was not discriminatory. The record, on the whole, does not convince us that the respondent would have discriminatorily rejected a timely application by the charging employees. We find that the record does not support the allegations of the complaint that the respondent discriminated in regard to the hire and tenure and terms and conditions of employment of James-Dille- hay, Hardin Truelove, Shirley Primm, Ernest Adams, William Clymore, Eldridge Grimmitt, and Huston Cox, thereby discouraging membership in it labor organization. Page applied for reinstatement on or about March 8, and was told by Kaplan that there was no work for him at the time. He applied again shortly thereafter and was reinstated. The respondent dis- charged him, however, on the first evening of his return to work. The record reveals that Page precipitated. a quarrel with a fellow- employee, that his discharge followed immediately thereafter, and that the respondent assigned Page's guilt with respect to the quarrel as the reason for the discharge. On this record we cannot conclude that the quarrel was a pretext for eliminating a union member or that the discharge was for concerted activity. We find that the respondent, by discharging George Page, did not discriminate in regard to hire and tenure and terms and conditions of employment, thereby discouraging membership in a labor organization. IV. THE EFFECT OF THE UNFAIR LA13OR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the re- spondent 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 Having found that the respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. We shall dismiss the complaint as to alleged unfair labor practices within Section 8 (3) of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Board makes the following : 247334-40-vol. 17-30 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. American Federation of Hosiery Workers, the joint committee, the day-shift committee, and the night -shift committee are labor organizations, within the meaning of Section 2 (5) of the Act. 2. 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 (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 4. The respondent has not engaged in unfair labor practices 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 re- spondent, Massachusetts Knitting Mills Corporation , Columbia, Ten- nessee, and its officers, agents, successors and assigns shall : 1. Cease and desist from in any manner interfering with, restrain- ing, 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 concerted activities for the purpose of collective bargain- ing or other mutual aid or protection , as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Immediately post notices in conspicuous places throughout its plant, and maintain such notices for a period of at least sixty (60) consecutive days from the date of posting, stating that the respondent will cease and desist in the manner aforesaid; (b) Notify the Regional Director for the Tenth Region in writing within ten (10 ) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint 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 it hereby is, dismissed. MR. EDWIN S. SMITH, dissenting in part : The Board's determination that the respondent did not discriminate against the charging employees rests on Kaplan's testimony that they MASSACHUSETTS KNITTING MILLS CORPORATION 457 did not make timely application, and, with respect to Page, that Kaplan discharged him for precipitating a quarrel with a fellow- employee. Clearly, a 'Contrary result must be reached if this portion of Kaplan's testimony is not to be credited. I cannot concur in the dismissal of the complaint as to the charging employees because I cannot credit Kaplan's testimony. The Board, in Section III A of its Decision, finds that the respond- ent sought to discourage union organization and other collective activity. In view of the continuing coercion by the respondent, the natural inference is that the respondent took advantage of an op- portunity afforded by an unsuccessful strike to rid itself of employees who had been in the forefront of the employees' concerted activity. Since Kaplan gave untrustworthy testimony to conceal the fact that the respondent coerced its employees in other respects, it is more than probable that he resorted to the same device in defending his refusals to reinstate. Further analysis of the record simply cor- roborates this conclusion. From the credible testimony of Adams, Truelove, Primm, and Dillehay, it is abundantly clear that Kaplan, in rejecting the ap- plications of these charging employees, gave them to understand that they were discharged, and not that they should apply again at a more opportune moment. If Kaplan had not definitely terminated their employment, they would not, as they did, have left Columbia and incurred great expense to find employment elsewhere. The Trial Examiner, who had opportunity to observe Kaplan's demeanor on the witness stand, gave no weight to his asserted reasons. Kaplan's testimony in this connection was general. Thus we are not even given the time sequence in which positions became available. Such information is crucial to the respondent's defense and must be con- tained in records in its possession. The unexplained failure to pro- duce these records constitutes an admission that they would con- travene Kaplan's testimony. With respect to Page, the respondent does not even assert that the altercation attributed to him interfered with the work of the night shift. It is evident that the respondent seized upon a trifling incident in' order to eliminate Page because of his union membership and concerted activity. I am of the opinion that the respondent failed to reinstate the charging employees because of their concerted activities, and also because of their leading part in the walk-out, which Kaplan described as "a very foolish and very unfair thing."