Albert J. Bartson

In the Matter of ALBERT J. BARTSON and TEXTILE WORKERS' ORGANIZING Coi nIITTEE Case No. C-997.-Decided May 8, 1940 Textile Industry-Interference, Restraint, and Coercion: anti-union speech by plant superintendent; discharge for union membership (not alleged as 8 (3))- Discrimination: discharge for union membership and activity, charge of sus- tained ; lay-off for union membership and activity, charge of dismissed ; refusal to reinstate for filing charges under Act following lay-off, charge of sustained- Reinstatement Ordered: discharged employee and employee refused reinstate- ment-Back Pay: ordered from dates of discrimination to offers of reinstatement. Mr. Samuel M. Spencer, for the Board. Mr. Frank K. Sims, Jr., and Mr. William A. Mason, of Charlotte, N. C., for the respondent. Mr. Robert D. Allen, 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 Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Fifth Region (Baltimore, Maryland), issued its complaint dated August 19, 1938, and its amended complaint dated September 10, 1938, against Albert J. Bartson, Charlotte, 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) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. With respect to the unfair labor practices, the amended complaint alleged, in substance, that the respondent terminated the employment of Henry C. Kirby and Hoyt M. Atkins on or about January 17, 1938, and April 5, 1938, respectively, and has since re- fused to reemploy them because of their membership in and affiliation 1 Now the Textile Workers Union of America. 23 N. L. R. B., No. 58. 666 ALBERT J. BARTSON 667 with the Union, thereby discouraging membership in the Union, and that by the foregoing acts and refusals to act, by advising his em- ployees to refrain from becoming or remaining members of the Union, and by other acts, the respondent has interfered with, re- strained, and coerced his employees in the exercise of the rights guaranteed by Section 7 of the Act. The amended complaint and accompanying notice of hearing were duly served upon the respondent. The respondent filed his answer to the complaint,2 objecting to the Board's jurisdiction of the sub- ject matter and denying that he had engaged in the unfair labor practices alleged. Pursuant to the notice a hearing was held on September 19 and 20, 1938, at Charlotte, North Carolina, before D. Lacy McBryde, the Trial Examiner duly designated by the Board. The Board and the respondent 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 on the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Exam- iner and finds that no prejudicial errors were committed. The rulings and hereby affirmed. On October 26, 1938, the Trial Examiner filed his Intermediate Report, copies of which were served upon the parties, in which he found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act, and recom- mended thL,t the respondent cease and desist from the unfair labor practices found and offer full reinstatement with back pay to Henry C. Kirby and Hoyt M. Atkins. In his Intermediate Report, the Trial Examiner denied the respondent's motion to dismiss the amended complaint made at the hearing. His ruling in this regard is hereby affirmed. Thereafter, the respondent filed exceptions to the Intermediate Report and a brief in support of said exceptions. On December 29, 1939, Textile Workers Union of America, as suc- cessor to the Union, filed amended charges alleging that the respond- ent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1), (3), and (4) of the Act. It appearing that the allegations of the amended complaint did not conform in certain respects to the evidence offered and received at the hearing, the Board, acting pursuant to Section 10 (b) of the Act and Article 2 It was stipulated that the respondent's answer to the complaint should stand as his answer to the amended complaint. 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II, Section 7, of National Labor Relations Board Rules and Regula- tions-Series 2, as amended, did on March 25, 1940, issue and cause to be served upon the parties its amendment to amended complaint pursuant to which the complaint was amended by adding allegations that on and after about July 18, 1938, the respondent refused and still refuses to reinstate Hoyt M. Atkins for the further reason that he had filed charges under the Act, thereby discriminating against him, and that such discrimination constitutes an unfair labor prac- tice within the meaning of Section 8 (4) of the Act. At the time of the service of said amendment to the amended complaint, notice was given to the respondent that he would be allowed ten (10) days from receipt of such notice in which to file with the Board in Wash- ington, D. C., an answer to the amended complaint, as thus amended, and that with such answer he might submit a request for hearing on the amended complaint, as amended. Neither an answer nor a request for such hearing has been filed by the respondent. The Board has fully considered the respondent's exceptions to the Intermediate Report and, in so far as they are inconsistent with the findings, conclusions of law, 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, a resident of Midland Park, New Jersey, is en- gaged in the manufacture of upholstery and decorative tapestry. He owns and operates plants in Charlotte, North Carolina, and Mid- land Park, New Jersey. Only the North Carolina plant, hereinafter referred to as the plant, is involved in this proceeding. Approxi- mately 10 per cent of the raw materials used at the plant originate in States other than North Carolina. During the 12 months' period preceding the hearing herein, finished products valued at approxi- mately $100,000 were manufactured at the plant. Of such products 95 per cent were sold and shipped to purchasers in States other than North Carolina. The respondent maintains a selling agent in New York City and leases a teletype connecting the plant with his office in Midland Park, New Jersey. II. THE LABOR ORGANIZATION INVOLVED Textile Workers' Organizing Committee is a labor organization affiliated with the Committee for Industrial Organization.3 It ad- Now the Congress of Industrial Organizations. ALBERT J. BARTSON 669 Imits to membership employees of the respondent at his Charlotte, North Carolina, plant. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion Early in April 1937 a large number of the respondent's employees applied for membership in the Union. Shortly thereafter, Henry C. Kirby and two other employees approached the respondent and, stating that they represented the union members in the plant, re- quested a raise in pay and certain changes in working conditions of the weavers. At that time the respondent granted a pay increase acceptable to the weavers. Subsequently, in August 1937, all of the weavers left their work, went into the office, and through Kirby as their spokesman asked Bane, the superintendent of the plant, for an increase in pay. Bane protested that he had no authority to grant the request. However, upon the insistence of the employees that their .demands be met before they resumed work, Bane wired the respond- ent, who was then in Midland Park, New Jersey, asking instructions in the matter. The record does not reveal the nature of the respond- ent's reply. However, Bane granted certain minimum wage increases and the employees thereupon returned to work. During the week following this occurrence the respondent and Bane carried on an extensive correspondence relative to the above- mentioned activities of the employees. In,the course of that corre- spondence the respondent asked Bane to give him the names of the "head ones . . . that was causing the trouble there." Bane replied that they were Kirby, W. R. Lefler, Ralph Wilson, and another whose name he was unable to recall at the hearing. The respondent there- upon instructed Bane to "ease out the ones that was ring leaders by the easiest way." Thereafter Bane discharged Wilson for the ostensi- ble reason that he had made "bad cloth." 4 Bane testified, however, that in making the discharge he was motivated by the respondent's instructions. His explanation for the failure to discharge Kirby was that Kirby "was giving . . . satisfaction." . On November 15, 1937, the respondent discharged Bane, who had ,experienced considerable "trouble with the weavers," and hired J. M. Gayle as superintendent of the plant. Early in 1938, having decided to initiate a new policy governing division of work among the weav- ers, Gayle posted a notice of a meeting of all the employees. Pur- suant to the notice, the employees assembled in the plant where Gayle addressed them. He opened his remarks by telling the employees of the new policy concerning the division of work. He then began to • The complaint does not allege that this discharge was an unfair labor practice within the meaning of Section 8 (3) of the Act. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discuss matters pertaining to the Union. He thanked the employees for their "cooperation," stating that prior to assuming his duties at the plant he had been advised that "the plant was about 90 per cent union," that "there was quite a bit of trouble down here," and that the employees were a "hard bunch to handle," but that, contrary to his expectations, he "had never run across a more cooperative bunch of help." Although declaring that it made no difference to him .whether or not the employees belonged to a union, he said, "I don't see where a union would be necessary in a small plant like this as I think you all are intelligent and can thrash out your own problems any time they might arise," that "little matters that would come up would be thrashed out among ourselves in the office." It is clear that Gayle's speech was inspired by his desire to accom- plish the respondent's previously expressed purpose to rid the plant of union activity, and that his reference to "trouble down here" made in connection with a discussion of the Union and his admonition that a union in the plant was unnecessary were calculated to and did discourage membership in and activity on behalf of the Union. We find that by discharging Wilson and by Gayle's speech to, the assembled employees, the respondent interfered with, restrained, and coerced his employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The discharge, lay-off, and refusals to reinstate Henry C. Kirby was employed by the respondent in October 1936, being one of the first weavers employed when operation of the plant commenced. He joined the Union in April 1937, was for a short time secretary of its North Charlotte Local, and was its most active member in the plant from the inception of efforts to organize the respondent's employees. He solicited applications for membership in the Union from a number of the respondent's employees and was one of the spokesmen on all occasions when collective demands of the employees were presented to the respondent. Bane and Gayle each- testified that they were aware of union activity among the respondent's employees and Kirby's participation therein. On Friday, January 14, 1938, Kirby was called to the cloth- inspection table where Gayle showed him some defects in a roll of cloth upon which he had worked. Gayle told Kirby that "cloth like that could not go through, that we could not have it made here like that, and that was all there was to it." He said nothing, however, to indicate that he considered the defects for which Kirby was re- sponsible sufficiently serious to necessitate discharging him. Kirby was discharged at about 1 o'clock in the afternoon on Monday, Janu- ary 17, the next regular workday following the foregoing incident. ALBERT J. BARTSON 671 At the hearing the respondent assigned two reasons for Kirby's discharge, namely, "bad cloth" and "failure to cooperate." With reference to the charge that Kirby had made "bad cloth," Gayle stated that the cloth which he inspected on January 14 was the worst roll of cloth he had seen since coming to the plant. John F. Crews, one of the respondent 's cloth inspectors, and R. P. Morris, a weaver, stated that the cloth was "worse than average." However, Atkins, who also saw Kirby's work at the inspection table , testified that "there wasn't much difference" between it and work done on the same roll of cloth by Harry Holmes, another weaver. Although Crews testified that it is impossible to determine the seriousness of defects in cloth by mere examination of the records made at the time of inspection , we think it significant that, according to those records , there were fewer defects in the "bad cloth" for which Kirby was discharged than ixi several pieces made by other weavers during the period immediately preceding the discharge . As stated above, Gayle told Kirby that "cloth like that could not go through." Nevertheless, it was shipped on the afternoon of January 14. On the question of Kirby's general ability as a weaver , Bane stated that "if anything, he was just a little better cloth weaver than the rest of them were, some of the rest of them." Although Gayle testi- fied that prior to the January 14 incident he had had occasion to call Kirby to the cloth -inspection table at least three times for the purpose of pointing out defects in cloth that Kirby had made, the respondent did not contend that serious defects in cloth were in- volved on these occasions . The evidence establishes and the respond- ent admitted that frequent calls to the inspection table to examine defective cloth were not unusual . James B. Hurt, a weaver who was in the respondent's employ at the time of the hearing , testified that he had been called five or six times since Gayle had become superin- tendent of the plant. The charge of failure to cooperate is based upon the fact that for a week Kirby failed to comply with a notice posted by Gayle re- quiring the employees to punch a time-clock upon arriving at and leaving work. The respondent's weavers are paid on a piece-work basis and it was not claimed by the respondent that Kirby had been irregular in his hours of work. At 11 o'clock in the morning of the day that Kirby was discharged, S. P. Brewer , Carolina's administrator of the Union, called Gayle by telephone and arranged a conference for 3 o'clock that afternoon to discuss a union proposal . It will be noted that Kirby was dis- charged between the time of ,the telephone call and that appointed for the conference . At the hearing Gayle testified that after in- specting Kirby's roll of cloth on January 14 he decided to discharge 672 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD Kirby "right away, you might say, as soon as I went back into the office and realized that the cloth was,-in other words, that it looked like that was the only thing that I was going to be able to do." Gayle testified that he delayed discharging Kirby until the afternoon of January 17, in the meantime permitting him to continue his work, so that he would have time to get Kirby's check from the respondent's office in Midland Park, New Jersey. In a statement prepared for the North Carolina Unemployment Compensation Commission the respondent stated that the reason for Kirby's dismissal was "no work available." Gayle testified that by that the respondent meant "no work available for Kirby." He stated that he assigned that reason so that Kirby would be eligible for un- ,employment compensation, of which he would be deprived, accord- ing to • Gayle's understanding, if the discharge were for cause. While we have no reason to doubt Qayle's sincerity in criticizing Kirby's work on January 14, under all the circumstances we cannot 'believe that Kirby's mistakes on that occasion were the real cause of his discharge. Nor do we think that Kirby's alleged failure to co- operate was the motivating factor. Rather, we are of the opinion that when confronted with the prospect of meeting actual demands by the Union, Gayle seized upon the January 14 incident as an ostensible reason for ridding the plant of the man whom he knew to be the leader of the union movement among the employees, and that the charge of failure to cooperate was an afterthought, employed to sup- port the respondent's contention that the discharge was for cause. We find that the respondent discharged Kirby, not for the reasons assigned by him, but because Kirby had joined and assisted the Union. We find that the respondent in discharging Kirby discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the Union, and interfering with, restraining, and coercing his employees in the' exercise of the rights guaranteed in Section 7 of the Act. Hoyt M. Atkins, a weaver, was employed by the respondent in De- cember 1936. He joined the Union in April 1937. On December 28, 1937, he accompanied Kirby when the latter presented a proposal concerning working conditions to Gayle. With this one exception, there is no evidence that he was active in the affairs of the Union, or that his activity, if any, was brought to the attention of the respondent. On April 5, 1938, Atkins, along with 8 of the 27 weavers then em- ployed by the respondent, was laid off. In determining those who were to be laid off, Gayle followed a policy of seniority based upon last continuous employment by the respondent. Although Atkins ALBERT J. BARTSON 673 was one of the first-weavers-hired by the respondent after the opening of the plant in the latter part of 1936, he had been absent from work from August 7 to September 4, 1937. During part of his absence he was employed at another -plant. Computing his length of service from'the date of his return to work on September 4; 1937, as was dons, he was one of the lowest in seniority among the weavers. When Gayle notified him that he was to be laid off and explained the basis of computing his seniority, Atkins protested that he had ob- tained a leave of absence for the period in question from Bane, who was then plant superintendent, and that, therefore, his seniority should be based upon his original employment by the respondent. While it is true' that Bane -did grant Atkins a' leave of absence, it is not clear from the record whether or not it was granted prior to the time that Atkins left the plant. It is established that Bane was not, at least at first, aware that Atkins was working elsewhere during his absence. At the hearing Bonda Perry, who works in the plant office, testified that no leave was granted prior to the time that Atkins absented himself from the plant, and that at no time did, Atkins receive permission to work for another employer. It is not necessary, under the circumstances, to decide whether Perry was correct in her statement. We think it reasonable to assume, how- ever, that she gave the same version of the matter to Gayle in the course of his investigation of Atkins' case. Inasmuch as Atkins was in no sense a leader in the union movement among the respondent's employees and since Gayle may well have believed that Atkins had, without permission, left the respondent's employ to work elsewhere, thereby losing his seniority, we do not think that the respondent discriminated against him in laying him off. The respondent commenced to reinstate the laid-off weavers in July 1938. On or about July 18 charges were filed with the Regional Director alleging that the respondent had discriminated with regard to the hire and tenure of employment of Atkins, and the respondent was notified of the fact. By July 30 all the laid-off weavers except Atkins, who had repeatedly requested reinstatement, had either re- turned to work or had been offered reinstatement, and on that date the respondent hired three weavers who had not theretofore worked at the plant. The respondent's reason for failing to reinstate Atkins is clearly established by Gayle's testimony on the subject: Trial Examiner McBRYDE. Mr. Gayle, I would like for you to explain your last answer there, that is, that all the nine laid-off weavers have been offered reemployment, have been either re- employed or offered reemployment with the exception of Mr. Atkins. * * * * *, +^ *• 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD GAYLE. We have had work for all of them, we have called the all back in except Mr. Atkins. Trial Examiner McBRYDE. Yes. Now, why is it that you called all of them back except Atkins? GAYLE. Because before it became time for Atkins to come back, we took these men back as nearly as possible on a seniority basis. Before it came time for Atkins to come back, we had been told that he had a case against us. Trial Examiner MCBRYDE. And that, I take it, is the reason you did not offer him employment? GAYLE. That is the reason, that was before we had that-and I do not know, I say I do not know whether we were going to take him back or not, it hadn't been his time to come back, but before knowing whether or not we were going to take him back, he filed charges against is, and for that reason I didn't take him back when his time came. We find that the respondent refused to reinstate Atkins on and after July 30, 1938, for the reason that he had filed charges against the respondent under the Act, and that the respondent thereby inter- fered with, restrained, and coerced his employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR 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 respond- ent described in Section I above, have a close, intimate, and sub- stantial 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 certain unfair labor practices, we shall order him to cease and desist therefrom. We shall order the respondent, moreover, to take certain affirmative action which we deem necessary to effectuate the policies of the Act. We shall order the respondent to reinstate Kirby and Atkins to the positions which they formerly held and to make diem whole for any loss of pay they may have suffered by reason of the respondent's discrimination against them by payment to each of them of a sum equal to the amount which he normally would have earned as wages from the date of such discrimination to the „date , of the offer of reinstatement, less his net earnings 5 during said period. ' By ^'S'net earninfis" is meant earnings, less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- ALBERT J. BARTSON 675 Upon the basis of the foregoing findings of fact and upon the entire record in the ease, the -Board makes the following : CONCLUSIONS OF LAW 1. Textile Workers' Organizing Committee 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 employ- ment of Henry C. Kirby, thereby discouraging membership in Tex- tile Workers' Organizing Committee, the respondent has engaged in and is engaging in an unfair labor practice, within the meaning of Section- 8 (3) of the Act. 3. By discriminating against Hoyt M. Atkins, because he had filed charges under the Act, the respondent has engaged in and is engaging in an unfair labor practice, within the meaning of Section 8 (4) of the Act. 4. By interfering with, restraining, and coercing his employees in the exercise of the rights guaranteed in Section 7 of the Act, the re- spondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 6. By laying off Hoyt M. Atkins on April 5, 1938, the respondent has not engaged in an unfair labor practice 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, Albert J. Bartson, Charlotte, North Carolina, his agents, successors, and assigns, shall: 1. Cease, and desist from : (a) 'Discouraging membership in Textile Workers' Organizing Committee, or any other labor organization of his employees, by where than for the respondent , which would not have been incurred but for the unlawful discrimination against him and the consequent necessity of his seeking employment else- where. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B 440. Monica received for work performed upon Federal , State, county, municipal , or other work- relief projects are not considered as earnings, but; as provided below in the Order , shall be deducted from the sum due the employee , and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State, county ,' municipal, or other government or governments which supplied the funds for'said work-relief projects. 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discriminating in regard to hire or tenure of employment or, any term or condition of employment; (b) Discharging, refusing to reinstate, or otherwise "discriminating against any of his employees because they have filed charges or given testimony under the National Labor. Relations Act; (c) In any -other manner interfering with, restraining, or coercing his employees in the -exercise of their rights 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 and other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. - 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to Henry C. Kirby and Hoyt M. Atkins, respectively, immediate and full reinstatement to their former positions without, prejudice to their seniority and other rights and privileges: (b) Make whole the said Henry C. Kirby and Hoyt M. Atkins for any loss of pay that they may have suffered by reason of the respond- ent's discrimination against them by payment to each of them, re spectively, of a sum of money equal to that which he would normally have earned as wages from the date of the respondent's discrimina- tion against him to the date of respondent's offer of reinstatement, less his net earnings 6 during said period; deducting, however, from the amount otherwise due to each of the said employees, monies re- ceived by him during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or govern- ments which supplied the funds for said work-relief projects; (c) Post immediately in conspicuous places at his Charlotte, North Carolina, plant and maintain for a period of at least sixty (60) con secutive days from the date of posting, notices to his employees, stating : (1) that the respondent will not engage in the conduct from which he is ordered to cease and desist in paragraphs 1 (a), •(b), and (c) of this Order; (2) that the respondent will take the affirma- tive action set forth in paragraphs 2 (a) and (b) of this Order;-and (3) that the respondent's employees are free to become or remain members of Textile Workers' Organizing Committee, or any other - labor organization, and the respondent will not discriminate against any employees because of membership or activity in that organiza- tion, or any other such organization; 9 See footnote 5, supra. ALBERT J. BARTSON 677 (d) Notify the Regional Director for the Fifth Region, in writ- ing, 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 amended complaint in so far as it alleges that in laying off Hoyt M. Atkins on or about April 5, 1938, the respondent discriminated in regard to his hire and tenure of employment, be, and it hereby is, dismissed. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order. r,r 283034-41-vol. 23-44