Victor-Monaghan Co.

In the Matter of VICTOR-MONAGHAN COMPANY and TExTII l WORKERS UNION OF AMERICA Case No. C-1394.-Decided May 15, 1940 Textile Manafactaring Industry-Interference, Restraint, and Coercion: statements of officials and supervisors disparaging Union and discouraging membership therein ; pointing out employer's beneficent acts and threatening reprisals if union activity continued ; circulating notices that employees were free to bargain individually and need not join a labor organization -Discrimi- nation: charges of, not sustained. Mr. Clarence D. Musser, Mr. John C. McBee, and Mr. Warren Woods, for the Board. Haynsworth & Haynsworth, by Mr. C. F. Haynsworth, Sr., and Mr. C. F. Haynsworth, Jr., of Greenville, S. C., for, the respondent. Mr. J. R. Coope, of Greenville, S. C., for the Union. Mr. Leonard Lindquist, of counsel to the Board. DECISION AND ORDER STATEMENT OF'tHE CASE Upon charges and amended charges duly filed by Textile Workers Organizing Committee and its successor, Textile Workers Union of America,' each of which labor organizations is herein referred to as the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Tenth Region (Atlanta, Georgia), issued a complaint dated July 7, 1939, against Victor- Monaghan Company, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor prac- tices 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. The complaint alleged in substance that the respondent discharged and refused to reinstate Aletha Sumner and Grover Sumner because 'In May 1939 Textile Workers Union of Ameiica took over the membership of Textile Workers Organizing Committee 23 N. L. R B., No. 88 838 VICTOR-MONAGHAN COMPANY 839 they had joined and assisted the Union, thereby discriminating in regard to their hire and tenure of employment and discouraging membership in the Union ; and that the respondent through its officers, agents, and supervisory employees at its Greer plant other- wise interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act by urging, persuadling, and warning said employees to refrain from becoming or remaining meinbers of the Union, and by threatening them with discharge or other reprisal if they became or remained members thereof. Copies of the complaint, accompanied by notice of hearing, were duly served upon the respondent and the Union. Thereafter the respondent filed with the Regional Director motions to strike from the amended charge and the complaint the allegations as to violations of Sect ion 8 (1) of the Act, or in the alternative, to make such allegations more definite and certain. On July 17, 1939, the respondent filed its answer reserving the objections made in the above motions and denying that it had engaged in the unfair labor practices alleged in the complaint. Pursuant to notice, a hearing was held at Greenville, South Caro- lina on July 20 and 21, 1939, before Chas. S. Lobingier, the Trial Examiner duly designated by the Board. At the opening of the hearing the respondent renewed its motions referred to above, and the Trial Exaniner reserved ruling thereon. At the close of the Board's case, counsel for the Board moved that the pleadings be conformed to the proof. This motion was not ruled upon by the Trial Examiner and it is hereby-granted. After the conclusion of the hearing, the respondent and counsel for the Board filed briefs with the Trial Examiner. Thereafter, on September 21, 1939, and pursuant to Article IT, Section 30, of National Labor Relations Board Rules and Regulations-Series 2, the hearing was ordered reopened; and after being duly designated as the Trial Examiner to conduct such further hearing, Frank Bloom denied the respond- ent's motions, noted above, to strike .the complaint or, in the alterna- tive, to make it more definite and certain. Pursuant to notice, a further hearing was held on October 12, 1939, before J. L. Hektoen, a Trial Examiner duly designated by the Board. At the opening of the hearing, the Trial Examiner denied the respondent's motions that the further hearing be discontinued; that separate hearings be held to consider the charges under Section 8 (1) and 8 (3) of the Act; and that the respondent be served with an Intermediate Report, which the respondent believed to have been filed by Trial Examiner Lobingier. Having claimed prejudice 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as a result of Trial Examiner Lobingier's failure to rule on its mo- tions to strike the complaint, or in the alternative, to make it more definite and certain, the respondent at the further hearing of Octo- ber 12, 1939, was granted the opportunity of recalling for additional cross-examination any of the Board's witnesses who testified at the hearing of July 20 and 21, 1939, and to call other of its own witnesses as to the alleged unfair labor practices. During the hearings of July 20 and 21 and of October 12, the Board and the respondent were represented by counsel and par- ticipated. The Union was represented by an official at the hearing of July 20 and 21. Full opportunity to be heard, to examine and to cross-examine witnesses, and to introduce evidence bearing on the is- sues was afforded all parties at each hearing. During the course of both hearings, the Trial Examiners ruled on various motions other than those mentioned above and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiners and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On October 20, 1939, the Board, acting pursuant to Article IT, Section 36, of National Labor Relations Board Rules and Regula- tions-Series 2, ordered the proceeding transferred to and continued before it for action pursuant to Article IT, Section 37, of said Rules and Regulations. The Board further ordered that no Intermediate Report be issued by the Trial Examiners, and, pursuant to Article II, Section 37 (c), of said Rules and Regulations, directed that Pro- posed Findings of Fact, Proposed Conclusions of Law, and Proposed Order be issued, and that the parties have the right within twenty (20) days from the receipt of such Proposed Findings of Fact, Pro- posed Conclusions of Law, and Proposed Order to file exceptions, to request permission to file briefs, and to request oral argument. Copies of the above Order were served upon the respondent and the Union. On March 26, 1940, the Board issued Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order herein, copies of which were duly served upon all parties, finding that the re- spondent had engaged in unfair labor practices affecting commerce within the meaning of Section 8 (1) and Section 2 (6) and (7) of the Act, and directing that the complaint be dismissed in so far as it alleged that the respondent had engaged in unfair labor practices within the meaning of Section 8 (3) of the Act. No exceptions were filed to the Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order; nor did any of the parties file a brief or request oral argument before the Board. VICTOR-MONAGHAN COMPANY 841 Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Victor-Monaghan Company, a South Carolina corporation, with its principal offices located in Greenville County, South Carolina, is engaged in the manufacture of textile goods, consisting largely of print cloths. It operates 5 cotton mills, all of which are located in South Carolina. At its Greer, South Carolina, plant, here in- volved, the respondent in 1938 used 2,258,504 pounds of cotton, ap- proximately 50 per cent of which was obtained from sources outside the State of South Carolina. The spare parts and supplies used at the Greer plant in 1938 cost $35,800, and the coal used cost $3,447. Most of the spare parts and supplies and all of the coal is obtained from sources outside the State of South Carolina. At its Greer plant, the respondent, in 1938, manufactured 2,050,587 pounds of cotton cloth, approximately 50 per cent of which was sent to finish- ing plants outside the State of South Carolina. The respondent's entire output is sold through J. P. Stevens & Co., Inc., commission agents in New York City. In 1938 the respondent employed an average of 325 persons at its Greer plant. IT. THE ORGANIZATION INVOLVED Textile Workers Union of America, formerly known as Textile Workers Organizing Committee, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to mem- bership employees of the respondent at the Greer plant. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion In the spring of 1937 the Union began its membership drive among the employees of the Greer plant. Simultaneously with this drive, the respondent through its superintendent and overseers conducted an active campaign to combat union activity. About this time the re- spondent published and distributed to its employees a notice, stating among other things that the employees were free to bargain indi- vidually and need not join a labor organization to work for the respondent; that company unions were not outlawed under the National Labor Relations Act; and that the respondent would con- tinue to maintain wages and working conditions upon "as high a level as is possible." T. M. Marchant, president of the respondent, testified that the notice was published shortly after the Act was 842 DECISION'S OF -NATIONAL LABOR RELATiO' S BOARD passed for purposes of correcting certain "wild statements" their being circulated among the employees. Roy Elledge, who joined the Union in May 1937, testified that the notice was published about a year after he joined the Union, "when the CIO was so hot out there." The contents of the notice reflects the respondent's apprehension of union activity, and we are satisfied that it was published and dis- tributed among the employees after the Union began its organization drive in the spring of 1937. T. J. Hawkins, a watchman at the Greer plant, joined the Union in the summer of 1937 and sometime thereafter C. M. Hemphill, the plant superintendent, questioned him with respect to his union mein- bership, recited to Hawkins the many advantages of being employed by the respondent, and indicated that should the union activity con- tinue he would favor, among other things, action by the respondent to deprive employees of their cheap housing, free light and water, and the Y. M. C. A. Although Hawkins could not recall the exact date of this conversation, he was certain that it occurred after he joined the Union. Hemphill, on the other hand, testified that the conversation took place shortly after United Textile Workers of America called the general textile strike in the fall of 1934. We doubt, however, that either Hemphill or Hawkins could have recalled the specific details of the conversation, as related at the hearing, had it occurred 5 years before, and we accept Hawkins' testimony that the conversation took place sometime after he joined the Union. J. M. Elledge, elevator operator and union member, testified that in March 1938 Hemphill also reminded him of the respondent's many benefits to its employees, and warned' that such benefits would. be cut off should the union activity continue. Hemphill denied engaging in such conversation, but in view of his- antagonism toward- union ac- tivity, demonstrated in his admitted conversation with Hawkins, we accept Elledge's testimony regarding this incident. Grover Sum- ner, a weaver and union member, also testified, and we find, that in the fall of 1938, Hemphill advised him that the C. I. O. "wasn't going to work," "to get out of it," and to "get rid of" J. R. Kirby, the Union's leader. Hemphill continued his verbal castigation of the Union by pointing out the superior working conditions existing at the Greer plant as compared with conditions of employment at a Gaffney, South Carolina, cotton mill, where the C. I. O. was "pretty hot." The activities of Sam Bradford, overseer, also reveal a zealous op- position to the Union. In March 1938 Bradford, while engaging in a conversation with J. M. Elledge at the Greer plant, stated, "I don't see how a Christian could belong to the CIO." Bradford ex- plained at the hearing that he was discussing church matters with VICTOR-MONAGHAN COMPANY 843 Elledge at the time he made this statement. However, we do not credit the claim that such discussion occasioned Bradford's deroga- tory remark. About this same time, Bradford reminded William Hood, a union member, of the many benefits the respondent had conferred on him and warned that "if the union got organized .. . they would shut the mill down." Bradford denied having mentioned the Union during the course of the above conversation and explained that he had limited his remarks to rebuking Hood for getting drunk in the company village, and to expressing his resentment of such be- havior inasmuch as "the Company had done a lot" for Hood. In view of the entire record, however, we give no credence to Bradford's explanation and find that the conversation took place as related by Hood. Roy Elledge, a union member and son of J. M. Elledge, also testified, and we find, that in March 1938 Bradford berated the C. I. 0. before him. About the same time, Paul Moreland, assistant overseer, also de- nounded the Union before Roy Elledge and promised him a better position, should there be an opening, if he would tear up his union card. When Elledge actually did tear up a union card before More- land, the latter stated, "You have got plenty of sense." 2 Several of the respondent's witnesses testified that shortly after the Act was passed the respondent instructed its supervisory staff to be "absolutely neutral" concerning the employees' membership or non- membership in the Union, while others testified that such instruc- tions were issued after the Act was declared constitutional and after the Union began its organization drive. We are convinced, however, that the superintendent and supervisory employees at the Greer plant would not have engaged in the anti-union activities described above had they been, instructed not to do so beforehand. In any event, under the facts of this case, whether or not the respondent's agents violated its instructions is not material.3 We find that the respondent by the above-described acts and con- duct, disparaging the Union, discouraging membership therein, pointing out the respondent's beneficent acts, and threatening re- prisals if union activity continued, has interfered with, restrained, 2 Concerning this incident Moreland testified , "Elledge walked up to me one time on the spare floor and told me, he says, 'This is a CIO card ,' and he tore it up and threw it down on the spare floor , and I said-I just turned around and walked ow " Moreland continued that about two weeks after this occasion , Elledge asked him what he "thought of the CIO " We are satisfied that Elledge would not have torn up a union card before Moreland had he not been solicited to do so; further , we do not credit Moreland's testi- mony that Elledge made inquiry of his supervisor 's attitude toward the Union. 8 Cf. Matter of Swift d Company, a Corporation, and Amalgamated Neat Cutters and Butcher TVerl men of North America, Local No. 641, and United Packing House Workers Local Industrial Union No 300, 7 N. L R B 269, enf'd as mod , Suift f Co v N L R B , 106 F (2d) 87 (C C A 10), rehearing denied, 106 F (2d) 94 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The alleged discriminatory discharges The complaint alleged that the respondent discriminatorily dis- charged Grover Sumner and his wife, Aletha Sumner, on October 7, 1938, thereby discouraging membership in the Union. In the Pro- posed Findings of,Fact, Proposed Conclusions of Law, and Pro- posed Order, however, the Board concluded that these two em- ployees were discharged for reasons other than union activities. No exceptions were filed to this finding. We have reviewed our pro- posed finding, and conclude that the complaint should be dismissed in so far as it alleges such discrimination. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III, A, 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 Having found that the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, we shall order it to cease and desist therefrom. We shall also order the respondent to take certain affirmative action which we deem necessary to effectuate the policies 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 : CONCLUSIONS OF LAW 1. Textile Workers Union of America, formerly known as Textile Workers Organizing Committee, is a labor organization 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 them in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor prac- tices, 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. VICTOR-MONAGHAN COMPANY 845 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 Rela- tions Act, the National Labor Relations Board hereby orders that the respondent, Victor-Monaghan Company, 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 their 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 bargaining or 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) Post immediately in conspicuous places in its Greer plant at Greer, South Carolina, notices to its employees, and maintain such notices for a period of sixty (60) days, stating that the respondent will not engage in the conduct from which it is ordered to cease and desist as aforesaid; (b) Notify the Regional Director for the Tenth Region (Atlanta, Georgia) in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed 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.