Stonewall Cottton Mills

In the Matter of STONEWALL COTTON MILLS and TExTILE WORKERS FEDERAL LOCAL UNION 21723, AFFILIATED WITH AMERICAN FEDERATION OF LABOR Case No. C-1709.-Decided October 17,1941 Jurisdiction : cotton cloth manufacturing industry. Unfair Labor Practices Interference, Restraint, and Coercion: anti-union statements; questioning and threatening employees in connection with the union ; disparaging the union ; urging employees to vote against the union in a board election. Discrimination: discharge of three prominent union members at three different times, for asserted reasons which were under the circumstances not the real reasons, found to be intended to discourage union membership; advancing patently untenable, contradictory or inconsistent explanations found signifi- cant in determining the incredibility of such explanations ; charges of, dismissed as to two employees. Collective Bargaining: majority established by certification-failure to nego- tiate in good faith : employer's anti-union conduct before the union was entitled to exclusive recognition considered ; employer's subsequent conduct after union's establishment as exclusive representative pursuant to Board's election and certification in dealing with the union in a series of meetings but making clear a lack of a sincere purpose to reach an agreement evidenced its failure to negotiate with the union in good faith. Remedial Orders : reinstatement and back pay for discriminatorily discharged employees ; upon request bargain collectively with the union and embody understanding in signed agreement. Unit Appropriate for Collective Bargaining : production and maintenance em- ployees, including the mill carpenter and the office porter, but excluding overseers, second hands, and other supervisory employees, and also clerical employees and persons employed in the respondent's stores. Mr. C. Paul Barker, for the Board. Jacobson, Snow & Covington, by Mr. Gabe Jacobson, Mr. Edward L. Snow, and Mr. J. A. Covington, Jr., of Meridian, Miss., for the respondent. Mr. Alfred Jones, of Atlanta, Ga., for the Union. Mr. Milton E. Harris, of counsel to the Board. 36 N. L. R. B., No. 47. - 240 STONEWALL COTTON MILLS 241 DECISION AND ORDER STATEMENT OF THE CASE - Upon charges duly filed by Textile Workers Federal Local Union- 21723, affiliated with American Federation of Labor, herein called the Union,' the National Labor Relations Board, herein called the Board, by the Regional Director for., the Fifteenth Region' (New; Orleans, Louisiana), issued its complaint dated May 22, 1940, an amendment thereto dated June 7, 1940, . and a second amendment thereto dated June 17,1940; against Stonewall Cotton Mills, Stonewall, Mississippi, 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), (3)., and (5) and. Section 2 (6) and (7) of the National Labor Relations Act, 49 -Stat.- 449, herein called the Act. Copies of the complaint, containing. a notice of hearing thereon, and the amendment and the second amend- ment to the complaint, were duly served on the respondent and on the Union .2 With respect to the unfair labor practices; the complaint, as amended, alleged in substance that the respondent (1) on or about certain specified dates commencing January 8, 1940, and at all times thereafter, refused to bargain with' the Union as the exclusive col- lective bargaining representative of all the respondent's production and maintenance employees, including. the mill carpenter and the office porter, but excluding clerical and supervisory employees, over- seers, second hands, and persons employed in the respondent's stores, although such employees constituted a unit appropriate for the pur- poses of collective bargaining and the Union at all times since about November 15, 1939, was their exclusive representative for such pur- poses; (2) discriminatorily discharged and laid off W. A. Taylor, Mrs. Della Todd, and J. A. Holloman on or about June 19, 1939, C. A. Holliman on or about November 4,.1939, and Hill Logan on or about January 25, 1940, and at all times after said dates failed and refused to reinstate or reemploy said individuals; and (3) by various acts on or about and since November 30, 1938, attempted to and did inter- fere with its employees in their choice of collective bargaining representatives. 1 The complaint originally described the Union as "affiliated with the C. I. 0.," but this description was subsequently amended as above set forth. 2 At the opening of the hearing on June 17, 1940, a motion, to amend the complaint to incorporate the allegations of the second amendment was granted with the consent of the respondent's attorneys. 433118-42-vol. 36-17 242 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD On or about June 3, 1940, the respondent duly filed its answer to the complaint, and on or about June 15, 1940, its amended answer to the "amended complaint," admitting the Board's jurisdiction, but denying that it had engaged in any of the unfair labor practices,3 and affirmatively alleging that it had negotiated in good faith with the Union whenever requested, in an honest endeavor to reach an agree- ment, and that it was still ready to continue its negotiations with the Union. Pursuant to notice ,4 a hearing was held from June 17 to 28, 1940, at Meridian, Mississippi,5 before R. N. Denham, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the, respondent were represented by counsel and the Union by a representa- tive. 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.6 Pursuant to motion, the Trial Examiner ordered the Board attorney to furnish the respondent with a bill of particulars concerning certain allegations of the com- plaint, as amended; and prior to the examination of any witnesses, the. Board attorney duly served on the respondents attorneys a bill of particulars pursuant to the order.? Prior to the close of the hearing, the Trial Examiner, with the consent of the respondent's attorneys, granted a motion by the Board attorney to amend the pleadings to conform to the proof, stating that' such amendments covered only dates, spelling, and other matters of minor nature. The respondent made separate motions to dismiss the complaint with respect to each of the five persons alleged to have been discriminated against and with respect to certain other paragraphs thereof, and it also made a motion to dismiss the complaint in its entirety. The Trial Examiner reserved ruling on these motions for his Intermediate Report, where he granted the motions in so far as Todd and J. A. Holloman were concerned, and in all other respects denied them. During the hearing the Trial Examiner made various rulings on other motions and on objections to the admission of evidence. The Board has reviewed 3 We consider the allegations of the second amendment to the complaint as included in this denial. 4 A notice of postponement and change of place of hearing was duly served on the respondent and the Union. s The hearing was held at Stonewall , Mississippi , on the evening of June 27, 1940. 6 At the opening of the hearing the Trial Examiner granted the respondent 's request to "invoke the rule, " which disqualified persons (with certain specified exceptions) from testifying as witnesses if they were previously present as observers at the hearing. 7 The bill of particulars set forth acts of interference , restraint, and coercion com mencing in August 1938 . The respondent 's attorneys objected to the bill of particulars only on the ground that it was not sufficiently specific and detailed . The Trial Examiner overruled the objection , stating that he would entertain a motion for postponement of the hearing if the Board's case covered matters which the respondent had not been suf- ficiently apprised of in the bill of particulars . The respondent's attorneys, did not thereafter request any such postponement. STONEWALL' COTTON MILLS 243-: all the rulings of the 'Trial Examiner and finds that no prejudicial: errors were committed. The rulings are hereby affirmed. On July 22, 1940, the respondent duly filed a brief with the Trial Examiner. On October 18, 1940, the Trial Examiner issued his Inter mediate Report, copies of which were duly served on the respondent, and on the Union. In the Intermediate Report the Trial Examiner found that the respondent had discriminatorily discharged Taylor," C. A. Holliman, and Logan, had refused to bargain collectively with the Union, and had otherwise interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, but had not discriminated against Todd and J. A. Holloman. The Trial Examiner recommended that the respondent cease and desist from engaging in unfair labor practices, off er reinstatement and.' back pay to Taylor, C. A. Holliman, and Logan, and bargain collet- tively' with the Union on request; and he further recommended that the complaint be dismissed with respect to Todd and J. A. Holloman °' On November 16, 1940, the respondent duly filed its exceptions to the Intermediate Report and other parts of the record, _ and also, requested permission for oral argument before the Board. On No vember 27, 1940, the respondent duly filed a brief with the Board. On December 9, 1940, the respondent notified the Board that it did not wish to participate in the oral argument theretofore scheduled before the Board for December 10, 1940, and the Union also waived oral argument. The Board has considered the respondent's exceptions and its two briefs. In so far as the exceptions are inconsistent with the findings, conclusions, and order hereinafter set forth, the Board finds them to be without merit. Upon the entire record in the case, the Board makes the following:: FINDINGS OF FACT 1. TIDE BUSINESS OF THE RESPONDENT Stonewall Cotton Mills, a Mississippi corporation, operates a cotton mill in Stonewall, Mississippi, where it is engaged in the manufacture of various kinds of cotton cloth. In 1938 and 1939 the respondent used approximately 12,000 bales of cotton, about 95 per cent of which were purchased through brokers located and operating in States other than the State of Mississippi; approximately one standard railroad carload of salt per month, which was shipped from the State- of Louisiana; approximately three standard railroad carloads of coal, per month, which were shipped from the State of Alabama ; and an unstated amount of dyes, a substantial quantity of which were pur- B Sometimes referred to in the Intermediate Report as William H. Taylor. 9 Sometimes inadvertently referred to in the Intermediate Report as C. A. Holliman:. 244_ ' DECISIONS OF NATIONAL LABOR:, RELATIONS: BOARD chased in the State of South Carolina. In the same years the. re spondent manufactured at the plant . more than 8,000,000 yards of. cloth, over 90 per cent of which was shipped to States.other, than the State of Mississippi. The respondent employs approximately 750 employees. The respondent admitted in its answer that a substantial portion of, its raw materials and finished products were transported between Mississippi and other States. II. THE ORGANIZATION INVOLVED Textile Workers Federal Local Union 21723, affiliated with Ameri-, can Federation of Labor, is a labor organization admitting to member- ship employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Background; interference, rest'raintt, .and coercion In 1933 the American Federation of Labor established a labor organ- ization known as Local 1996 at the respondent's plant. C. A. Holli- man 10 was one of the founders and most active members of Local 1996. In 1934 he was elected a vice president of the Mississippi State Federa- tion of Labor. Local 1996 acquired a membership of over 95 percent of the respondent's employees, and made serious efforts to function on their behalf. The negotiating committee, of which Holliman was a member, held some 12 or 15 confereices . with Oscar Berman, the re- spondent's president, and Arnold Berman, the respondent's vice presi- dent, in an effort to negotiate a contract, but were consistently unsuc- cessful. In September 1934 a general strike occurred in the textile industry, and Local 1996 participated therein. This strike closed down the respondent's plant for about 3 weeks, but was unsuccessful; and after its termination the strikers returned to work in the plant. In July 1935 Holliman was a member of. a committee of Local 1996 which requested the management to close the plant for July 4 so that the employees could celebrate that day as. a holiday. The request was re- fused and, as a protest, the employees engaged in a work stoppage lasting a few hours. After this incident, Local 1996 survived for about 3 months, and then passed out of existence. No further organizational efforts were made among the employees until the summer of 1938. In July 1938 the respondent imposed a wage cut on its employees. In protest against this cut, a group of 35 or 40 employees called on O.T. Harrington, the respondent's secretary and the highest official 1u Carried on the respondent's records as "S. C . Holliman," and generally known as "Shorty.", ; STONEWALL COTTON MILLS 245 at the plant in the absence of Benjamin F. Berman, the respondent's -treasurer and general manager of the plant," and demanded that the 'former wage rate be restored. Harrington advised them that the re- spondent had taken its current business at a price level which neces- sitated the cut, but that an attempt would be made to compensate there- for by making a reduction in the house rent charged the employees and in the price of merchandise handled at the respondent's store; 12 and he added that the respondent would attempt to restore the former wage rates in 90 days. The employees were not satisfied with the result of their visit to. Harrington. Immediately following it, W. A. Taylor 13 and four other employees, all of whom had been in the protesting group, began to take steps for the organization of a local of the American Federation. of Labor. Shortly thereafter a charter was issued to the group as. Textile Workers Federal Local Union 21723. This charter was in- stalled at a meeting at Taylor's home on August 27, 1938, at which time Taylor was elected recording secretary. An active organizational campaign then began with the holding of an open meeting in early September 1938. Notices of the meeting had been conspicuously posted about the town, and the Union promptly became a topic of general con- versation throughout Stonewall, a small community of about 1,500 population. At the time that notices of the meeting were posted, Benjamin Ber- man was in Cincinnati, Ohio, and charge of the plant during his tem- porary absence was, to a large extent, left in the hands of Secretary Harrington. Upon learning of the scheduled meeting, Harrington communicated with Manager Berman by long distance telephone and, as was frequently done on such occasions, had J. R. Brown, the plant superintendent, listen to the conversation at an extension telephone. During this conversation, after Harrington told Berman of the meet- ing that was to be held, Berman suggested that some persons who were "friendly" to the respondent should be sent to the meeting to circulate. among the employees and remind them of the unfulfilled promises of Local 1996 at the time of the general strike in September 1934. Ber- man then reconsidered, and told Harrington to confer with the respond- ent's attorney and vice president, Gabe Jacobson, as to whether this, suggestion was permissible, and as to what could be done.'' 11 President Oscar Berman and Vice-President Arnold Berman reside in Cincinnati , Ohio,- and do not attend regularly at the plant. '2 Stonewall is a "company town." The respondent owns all the privately owned real! estate in the community. 13 Also referred to in the record as "Alex" Taylor. 14 The findings in this paragraph are based on Brown 's testimony. Harrington denied' that any such telephone conversation ever took place with respect to union activity, asserting 'that, although he .knew -- that the . mill was being organized , he "paid no atten- tion" to such activities and intended to "stay away from that as much as I can." 246 DECISIONS OF NATIONAL :LABOR ' RELATIONS BOARD The respondent thereupon set out to make its anti-union policy plain to its employees. Immediately after the telephone conversation, Har- rington asked Brown if he wanted to go to the meeting and if he knew of anyone else who was "all right" and might care to go. On the day after the Union's open meeting, B. F. Priester, the overseer of the -weaving department, asked J. A. Holloman,15 a warp hauler in his department and a brother of C. A. Holliman'16 "What sort of a union is that you all [are] getting up now?" When Holloman replied, "It is the A. F. of L.," Priester wanted to know whether Holloman was a member ; and Holloman replied that- he was. As to this conversation, Priester testified that he did not "remember anything about it." When :asked if he might have questioned Holloman about the meeting and was merely unable to recall it on the stand, he replied that he did not "think" he did'so, because it was his practice not to ask any questions about the Union "or the meeting." The Trial Examiner found that the conversation occurred as above set forth, and we concur in his finding.17 On the next day H. F. Richards,"' the night.superintendent, stopped Holloman on the street to question him concerning the meet- ing. After Holloman explained that the meeting was.an, A. F. of L. meeting, Richards replied that Berman would have no union in Stone- wall, and that he would shut down the mill and run the union men out of town before he would recognize a union.19 A month later, shortly after joining the Union, C. A. Holliman was approached by his im- mediate supervisor, Add Privett'20 who told him that he "had better get out of that mess [the Union] and stay out of it or the Stonewall Cotton Mills will shut down and starve us to death." 21 Berman first testified that he did not remember any such conversation , although he admitted that he was in Cincinnati "at the time," but finally he denied the conversation. However, it was conceded that Harrington conferred with Berman by long distance tele- phone to Cincinnati at times. We credit the testimony of Brown , as did the Trial Examiner, and reject the testimony of Harrington and Berman. "Also referred to in the record as "Ab." "It will be noted that these two brothers spell their last names differently. 17 Although the complaint alleged that the respondent interfered with its employees in their choice of bargaining representatives "on or about and since November 30, 1938," the bill of particulars served on the respondent at the start of the hearing stated that such activities also occurred earlier, during the months of August, September, October, and November 1938. At the hearing the respondent did not object to the introduction of evidence with respect to such acts as were engaged in prior to the end of November 1938, nor did it claim surprise or request postponement of the hearing because of such evidence. Moreover, at the close of the hearing, the respondent consented to an amendment of the pleadings to conform to the proof ; and it did not except to the Trial Examiner's findings of unfair labor practices on the ground that evidence of these activities should not have been considered. 19 Also referred to in the record as Richardson and Ritchie. Richards did not testify concerning this conversation . Our finding is based on Holloman 's testimony , which the Trial Examiner also credited. 20 Also referred to in the record as J. A . Privett. 21 Although Privett was called as a witness, he did not deny this conversation. Our Snding is based on Holliman 's testimony, which the Trial Examiner also credited. STONEWALL COTTON. MILLS :247 Despite such interference by the respondent's supervisory officials, .the Union's organizational activities continued on a substantial scale -until, by the end of October 1938, a large number of the respondent's employees had become members. On October 28, 1938, Taylor and two other employees, as members of a committee of the Union, called .on Secretary Harrington to discuss the matter of recognition by the • respondent. They were advised by Harrington that he had no au- thority to deal with them, and that they should see President Oscar Berman, who lived in Cincinnati, Ohio. The committee, including Taylor, thereafter communicated with Oscar Berman, and on November 27, 1938, met with him in Stonewall. At this meeting the parties discussed the matter of a labor contract. -Berman stated that he would have to shut the mill down if he were to change his former policy of never signing such a contract, explaining that he had not done so during his entire career of 30 years.22 How- ever, he stated that he would meet with the Union for further dis- cussion in January 1939.23 On the following morning, November 28, Taylor and other committee members again called on President Ber- man and Secretary Harrington, and presented a proposed contract to them. Berman refused to accept the document, however, repeating that he had never signed a contract with a union and did not intend to change his practice. In December 1938 Taylor and certain other members of the com- mittee called on Secretary Harrington in President Oscar Berman's absence, and again submitted the contract. Harrington stated that he was without authority to sign any such contract, but nevertheless entered into a general conversation with the committee members on the subject of unions. In the course of the conversation, Harrington declared that he was personally opposed to outside unions, and cited his own experience many years before, when he was discharged from his job as a clerk with the M. & O. Railroad Company after 6 months, because of the seniority provision in the railroad company's contract with the union there involved. However, Harrington told the com- mittee, he would be in favor of a company union: During the con- versation the subject of dues was brought up by Harrington, who remarked that the sum an employee was required to pay the Union during the period of a year would buy. three pairs of shoes. He asked the committee members, "Why don't. you let this thing alone'?" Har- rington admitted having had a conversation with the committee at zz The respondent is a wholly owned subsidiary of Crown & Headlight Overall Company (also referred to in the record as Crown Overall Company), which operates under a closed shop agreement with United Garment workers of America, an affiliate of the American Federation of Labor. Oscar Berman is the president of the Crown Company as well as of the respondent, and Benjamin Berman is also an official of both companies. 23 Oscar Berman was not called as a witness. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that time, but did not "remember it very clearly" ; and he denied having made the anti-union statements. The Trial Examiner did not credit these denials, nor do we. We find that the statements were made as set forth above. The Union made no further effort to meet with the respondent until February 14, 1939, when C. M. Fox, a representative of the American Federation of Labor, wrote to Manager Benjamin Berman, enclosing a proposed contract and requesting a meeting to discuss it. Although in November 1938 President Oscar Berman had said that he would meet with the Union in January 1939, the respondent did not reply to this February 14 letter, nor did it otherwise communicate or meet with the Union at any time between December 1938 and April 26, 1939. On April 26, 1939, Taylor and other committee members repre- senting the Union met with President Oscar Berman, Attorney Jacob- son, and a representative of the Regional Office of the Board. At the outset Berman stated that he had heard that the Union was coercing and intimidating many employees into joining,24 and for the first time questioned whether the Union represented a majority. He then requested the Union to petition the Board for an election, stating that if the Union were designated by a majority of . the employees he would "work out" an agreement with the Union "satisfactory to both sides, sign it, and live up to it." Following this conference . efforts were made to obtain an agreement for a consent election, but the re- spondent refused to enter into such agreement upon being advised that it would not be allowed to electioneer against the Union. Shortly before May 5, 1939, according to the testimony of J. A. Holloman, Supervisor Priester said to him that the Union was going to be the cause of his discharge, and added, "You are talking about this damned union a whole lot. I am going to fire you and run you off from here, if you don't stop it." Priester denied having made the foregoing statements. However, in view of the evasive character of Priester's testimony and the Trial Examiner's refusal to credit his denial of an earlier instance of questioning Holloman about the Union, we find that his denial in this connection is not worthy of belief and that the statements were made substantially as testified to by Holloman. Around October 1, 1939, Supervisor Add Privett told C. A. Holli- man that if he did not "quit associating with Alex Taylor, Henry Parker, and Paul Todd [employees prominent in the Union], you are going to lose your job." At about the same time, Will M. Privett, an overseer, said to Holliman that if he did not stop associating with these same employees, "I am going to have to discharge you." Such statements were denied by the two supervisors to whom they were 14 No evidence was offered to support this accusation. STONEWALL COTTON MILLS 249 attributed. The Trial Examiner, who had an opportunity to observe the demeanor of the witnesses, did not credit these denials, nor do we. We find that the statements were made as above set forth. Meanwhile, at a meeting with the Union on June 29, 1939, the respondent had definitely refused to continue dealing with the Union, on the ground that it lacked proof of.the Union's majority. Accord- ingly, on July 10, 1939, the Union had filed with the Board a petition requesting an investigation and certification of representatives, pur- suant to Section 9 (c) of the Act. On October 26, 1939, the Board issued a Decision and Direction of Election in the representation pro- ceeding,25 and the election was thereafter scheduled for November 15, 1939. On November 11, 4 days before the election, the respondent posted mimeographed notices on its bulletin board at the plant, advis- ing the employees that the purpose of the election was to determine whether they wanted the Union as their exclusive representative to bargain concerning the terms and conditions of their employment, "or if you want to continue your present method of being able to speak for yourself on such matters" with the respondent's officials. The notices urged the employees to cast ballots in the election, assuring them that no.one would ever know how they had voted, and 'adding that, as to the wage rates and hours "established by the Government, the election will not change in any way these wage rates and hours." On' November 15, while the election was in progress, the respondent's supervisors urged the employees to take time off from their work in order to cast their vote; and, at the suggestion of one of the super- visors, all the plant gates were thrown open to make it more con- venient for all employees to cast their ballots. In publishing these notices and in urging its employees to vote, the respondent could have had no other motive than a desire to interfere with the self-organiza- tion of its employees.26 In fact, Berman admitted that the notices were posted in reply to certain printed handbills which the Union had previously . distributed, urging the employees to vote for the Union. By way of defense, however, he claimed that inquiries made by many of the employees (none of whom he could recall by name) about the claims made in the Union's handbills justified the notices posted by the respondent. Regardless of the credibility of Berman's claim, we find that it afforded the respondent no excuse for projecting itself into the employees' sphere of self-organization. In the light of the respondent's repeatedly announced hostility to the Union, no em- 2516 N. L. R. B. 483 . The Union was designated as "Textile Workers' Federal Labor Union, Local 21723, affiliated with the American Federation of Labor" throughout the representation proceeding. 2 e See Matter of The Letz Manufacturing Company . and Federal Labor Union No. 22226, affiliated with the American Federation of. Labor , etc., 32 N. L. R. B., No. 105. 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployee could fail to understand that the respondent was urging him to vote for a continuance of the "present method of being able to speak for yourself", and against the Union.27 Bevin Long and. Ben McPhearson each testified that in December 1939 Secretary Harrington was at the refreshment stand in the plant when Taylor and another person, walked by, and that they heard Harrington remark, "There goes Taylor, the agitator and trouble- maker." Harrington denied making such remark. The Trial Ex- aminer did not credit Harrington's denial, nor do we. Long also testified that about the same time Harrington, in discussing the Union's designation by a clear majority at the election, stated that he had been told that the Union had promised the employees unem- ployment benefits of $7 a week, adding that the respondent "will pay off tomorrow [the regular pay day] and the Union will pay off next week." McPhearson testified that Harrington, when asked at what time the mill would start back on full time, countered with a question as to why the employees cared, since "the Union would pay $7 a week." Harrington denied having made any of the foregoing state- m,ents. The Trial Examiner did not believe Harrington's denials of other anti-union statements, and we do not believe the instant denials. We find that the statements occurred in substance as above set forth. In January 1940, according to Ollie Taylor '211 Supervisor 'J. C. McCrary, the head "card-grinder," was talking-to two other persons near the place where Taylor worked in the No. 1 "card room," and remarked that "he would not work organized 'labor at all," and that if the plant became "a closed shop he would pack his tool box and leave." Taylor subsequently repeated this remark of McCrary's to other employees. McCrary testified that he did not "remember" mak- ing any remark to Taylor involving the Union, but did not deny making the quoted remarks 'to the two other persons. We find, as did the Trial Examiner, that the remarks were made as above.set forth. It is apparent from, the foregoing facts and the, entire record that the respondent invaded a province. reserved for employees, and ac- 27 See National Labor Relations Board V . Pilling & Son Co., 119 F. ( 2d) 32 (C. C. A. 3), enf'g Matter of Pilling & Son Company and Dental, Surgical & Allied Workers Local Indus- trial Union No. 119, affiliated with the C. 1. 0., 16 N . L. It. B. 650 , where the Court held that the distribution of similar notices "in and of themselves" constituted an unfair labor practice . In National Labor Relations Board V. Elkland Leather Company , Inc., et al., 114 F. (2d) 221 (C. C. A. 3 ), cert . denied , 311 U. S. 705, enf'g Matter of Elkland Leather Company Inc. and National Leather Workers' Association, Local No . 37, 8 N. L. It. B. 519 , the Court specifically approved a Board finding that the company had violated Section 8 (1) by disc tributing a written ' statement that it would always operate as an open shop and that no employee could be forced to join a union . See also , National Labor Relations -Board v. Asheville Hosiery Company , 108 F. (2d) 288 (C. C. A. 4), mod'g and enf'g Matter of Asheville Hosiery Company 'and American Federation of Hosiery Workers, 11 N. L. R. B. 1365. 21 Also referred to in the record as 0. L. Taylor. STONEWALL. COTTON MILLS 251 tively opposed their ' efforts to organize themselves for the purposes of collective bargaining: , This attitude of hostility was determined upon by Manager Berman' at the Union's first appearance, and was made' clear to the employees, by ^ 7 different supervisory employees 1(including the respondent's -president and its secretary) On no fewer than 11 different occasions.. The respondent contends' that' it should not be held responsible for the 'remarks of its supervisory employees, in the absence of proof that such remarks were authorized, represented the respondent's attitude, or had an appreciable effect upon the employees. These contentions, in so far as they constitute a claim that the instant record does not establish the commission of unfair labor practices, are without merit 29 We find that the respondent is responsible for the foregoing remarks. We find that, by the anti-union expressions of Priester in September 1938 ' and May 1939, Richards in, September 1938, Add Privett in October' 1938 and October •1939, President Oscar Berman in December 1938, Secretary Harrington in December 1938 and December 1939, Will'Privett in October 1939, and McCrary in January 1940; by the November 11, 1939, notices; and by urging the employees to vote in the November 15,' 1939, election, the respondent interfered with, re- strained, and coerced its employees in the exercise of the rights guaran- teed in Section 7 of the Act. B. The refusal to bargain 1. The appropriate unit . .As hereinbefore set forth, on July. 10, 1939, the Union filed with the 'Board a petition for investigation and certification, of representa- tives under Section 9 (c) of the Act. On September 29, 1939, the Board, held a hearing thereon,. at which the respondent and the Board'were,represented by counsel and the Union by a representa- tive. On October 26, 1939, the Board issued a Decision and Direc- tion of Election,30 finding .that the unit appropriate for the purposes of collective bargaining. at the respondent's plant consisted of all the production and maintenance employees, including the mill car- penter and the office porter, but excluding overseers, second hands,. 11 National Labor Relations Board v. 'Link-Belt Co., 311 U. S. 584, rev'g 110 F. (2d) 506 (C. C. A. 7), and enf'g Matter of Link Belt Company and Lodge 1604 of Amalgamated Associa- tion of Iron, Steel and. Tin Workers of North America, etc., 12 N. L. R. B. 854; H. J.. Heinz Co. v. National Labor Relations Board, 311 U. S. 514, aIf'g 110 F., (2d) 843 (C. C. A. 6), enf'g'Matter of H. J. Heinz Company and Canning and Pickle Workers, Local Union No. 325,. &C., 10 N. L. R. B. 963; Montgomery Ward & Co., Inc. v. National Labor Relations Board, 115 F. (2d) 700 (C. C. A.'8), enf'g Matter of Montgomery Ward and Company and Warehoiise,Employees' Union No. 20,297, Affiliated with the A. F. of L., 17 N. L. R. B. 191. 00'16: N. L. R. B. 483. ' 252 DECISIONS OF NATIONAL LABOR; RELATIONS BOARD :and other supervisory . employees, and also excluding clerical em- ployees and persons employed in the respondent's stores 31 At the hearing in the present proceeding, the respondent argued that it had changed its ideas with respect to the appropriate unit, and now wished to exclude many job classifications which it had previously sought to include in the unit. However, the respondent offered no evidence in support of the changed position it adopted at the hearing in this proceeding, nor was any reason advanced for re- considering our previous determination of the appropriate unit at the respondent's plant. We find that the respondent's argument on .this point is without merit 32 We now find, as we heretofore found in the representation pro- ceeding, that the respondent's production and maintenance employees, including the mill carpenter and the office porter, but excluding clerical' and supervisory employees, overseers, second hands, and per- sons employed in the respondent's stores, at all times material herein constituted, and now constitute, a unit appropriate for the purposes of collective bargaining, and that said unit insures to the respondent's employees the full benefit of their right to self-organization and to collective bargaining, and otherwise effectuates the policies of the Act. 2. Representation by the Union of a majority in the appropriate unit On November 15, 1939, pursuant to the Decision and Direction of Election referred to above; the Board conducted a secret-ballot election among all the respondent's employees in the appropriate unit, and a majority of the employees designated the Union as their collective bargaining representative.33 No objections were filed by any of the, parties and the Board on December 2, 1939, issued a Certification of Representatives,34 certifying the Union as the exclu- sive representative of all the employees in the above unit for, the purposes of collective bargaining. We find that at all times material herein the Union was, and now is, the duly designated representative of a majority of the employees si The respondent had argued at the representation hearing in favor of a broader unit than the one found appropriate by the Board. 32 In its amended answer , the respondent specifically admitted , "upon . . . informa- tion and belief," the truth of the allegations of the complaint that the Union at all times ,since November 15, 1939 , was the collective bargaining representative of a majority of the ,employees in the unit found appropriate by the Board and , by virtue of Section 9 (a) -of' the Act, was therefore the exclusive collective bargaining representative of all the employees in the unit. ' 33 Of 817 employees who were eligible to vote , 717 cast ballots, of which 427 were for the Union . In its answer, the respondent admitted the Union 's majority, and Manager Berman testified at the hearing that the Union was "the sole bargaining agency" at all times after the election. , 34 18 N. L. R. B. 113. STONEWALL COTTON MILLS 253 in said appropriate unit, and that, by virtue of Section 9 (a) of the Act, the Union at all such times was, and now is, the exclusive repre- sentative of all the employees in said unit for the purposes of collective: bargaining with respect to rates of pay, wages, hours of employment,. and other conditions of employment. 3. The refusal to bargain On January 8, 1940, pursuant to previous arrangement, certain rep- resentatives of the Union met with Manager Benjamin Berman, Sec- retary Harrington, and' another supervisory employee, and submitted: a proposed contract on behalf of the Union. This proposed con tract in substance provided" for a modified closed shop (excepting new employees during their initial 2-week trial period) ; grievance pro- cedure; a 40-hour week, with time and a half for ordinary overtimes and double time for overtime on Sundays and certain specified holi- days; 35 seniority; a detailed wage scale for the various jobs, subject to change on 30 days' notice; 36 and arbitration of disputes concerning: grievances, wages, or seniority where the respondent and the Union: were unable to settle such disputes themselves .37 The proposed con-- tract was to run for 2 years, and yearly thereafter unless 30 days" notice was given to the contrary. It stated in its preamble that "neither strike, lock-out or stoppage of work [should be] countenanced by either party." 38 At the January 8 meeting, Manager Berman discussed each 'pro"- vision of the proposed contract in cursory fashion, and then said-that he would first have to confer with his associates before reaching any decision on the various provisions. Before the meeting ended, a second meeting was arranged for January 15, and Berman promised to submit a. counter-proposal at that time, as requested by the Union.. A second meeting was held on January 19, 1940, having been post- poned from January 15 at the respondent's request. On behalf of the respondent, Manager Berman separately rejected in turn each pro-- vision of.the Union's proposal. He rejected the grievance procedure, on the grounds that the employees who were not members of the Union: "might not receive the. same consideration from the union grievance 3e The emergency or repair crew was given 2 additional hours per week for emergency' repairs before overtime rates became applicable. 3a The wage scales were not submitted to the respondent until 2 days later, on January 10 1940. 37 Provision was made for two arbitrators, one to be appointed by the Union and one b'y the respondent ; and if these two were unable to agree on a decision or on a third arbitrator, after 5 days , a third arbitrator was to be appointed by the Director of Conciliation of the:' United States Department of Labor. as The unit covered by this proposed agreement did not coincide with the unit found: appropriate by the Board in the representation proceeding above referred to, but the parties. did not discuss the question at any length since , as Berman testified, "That is purely, a. matter of definition and very easy to agree upon." - 254 DEcisroNS OF NATIONAL LABOR: RELATIONS BOARD committee that a union member would;" and, that the respondent.: felt itself obligated to look out ,for the interests of. all employees.^who, either by failing to vote in the election or by. voting against the Union', had not affirmatively designated the. Union, as their. representative: 9. He rejected the arbitration feature. of ;the: grievance, seniority;; and wage scale provisions, on the ground that it "would take away decision on those problems from the management, and put it in the hands of a third party." He rejected the closed-shop provision on the ground that, the respondent did not have the "right to impose, as a condition of employment; membership in a union," or the" "right to"de- prive employees of their constitutional rights not to join a union."40 He rejected all the remaining provisions of the Union's proposal • on the ground that the plant was engaged in a "highly competitive in= dustry" and that the respondent therefore "could not increase wages and could not meet their [the Union's] request on anything that ex- 'ceeded what we were doing and what we were paying.4' In discussing -.the • specific holidays requested by the Union, Berman countered by' stating that Sunday was the only legal holiday in Mississippi 42' 'Thus, no agreement was reached on any of the provisions of the pro- posal. The Union asked for the promised counterproposal, but Ber- man replied that the law did not require the respondent to sign any agreement with the Union, and that oral counterproposal had not been prepared as yet. At the close of the meeting, the. Union again re- quested some kind of counter-proposal. A' third meeting was held on January 24, 1940, at which time the provisions of the Union's proposal were again discussed, with the main emphasis on the closed-shop and the arbitration provisions. The Union receded from its demand for a closed shop, and stated that it would accept a provision for a "preferential" shop, exempting all the. respondent's current employees who were not members of the Union from any obligation to join the Union in order to retain their jobs, but requiring all present members of the Union and all future e'm'- ployees to maintain good standing in the Union as a condition of em- ployment. The respondent rejected this modification on the same grounds that it had advanced for rejecting the closed-shop provision. The Union also receded from its demand for ti 40-hour week and for 39 Manager Berman stated at this and subsequent meetings with the Union .that he wished to include in any agreement with the Union a proviso to the effect that any individual employee or group of employees also had the right to present grievances to the respondent. 40-As previously noted, Manager Berman is an official of the respondent's parent corpora- tion , Crown' and Headlight Overall Company, which operates under a closed-shop agreement with United Garment Workers of America. 41 No evidence was offered to the Union, and none was introduced at the hearing, with respect to the asserted "highly competitive " nature of the respondent 's business. 42 There was no evidence that the holidays requested by the Union were not business holidays. STONEWALL COTTON MILLS 255. double time with respect to overtime work on Sundays and holidays, and agreed to accept the work week and overtime requirements estab- lished by the Fair Labor" Standards Act,43 generally known as the Wages and Hours Act. The respondent, however, refused to agree to such work week and overtime requirements, on the ground that the Wages and Hours Act might be repealed or declared unconstitutional; and it made no change' whatsoever in the position it had taken with respect to the various other proposals at the previous meeting. Again no proposal of any kind was submitted on behalf of the respondent. Before the meeting ended; the Union renewed its request for a counter- proposaL . - - A fourth meeting was field on March 13, 1940, at which time the 'Union's original proposed contract was again discussed. The Union indicated that it would accept a "strong" arbitration clause in place of a closed or preferential shop clause. The respondent, however, ad- hered to the position it had taken at the previous meetings, and rejected both alternatives. The respondent's attorney reiterated that the law did not require the respondent to sign a contract with the Union, even if a verbal agreement were reached.44 The respondent added that it did not't'rust" the conciliators of the Department of Labor because they were "lined up with labor." It suggested that all employees making more than the minimum of 321/2 cents per hour provided by the Wages and Hours Act should take a cut to the minimum wage. No agreement Was reached, and no proposal of any kind was submitted on behalf of the respondent although the Union again requested a counterproposal. On May 9 the Union mailed a new proposed contract to the re- spondent, and requested that the respondent submit a counterproposal within 5 days if the Union's proposal did not meet with entire ap- proval. This second proposal of the Union was similar to the one it had submitted on January 8 in many respects, including a proposal for a modified closed shop, but it omitted any provision for arbitration, because the Union felt that the respondent would not agree to such provision. However, the new proposal included a provision against - 43-52 Stat . 1060 , 53 Stat. 1266. '44 On the same day Manager Berman mailed a letter to the Regional Office , stating that the respondent was not willing to sign an agreement with the Union but professing a willingness to "negotiate a verbal agreement ." On April 2 Berman mailed a second letter to the ' Regional Office, stating that he was "seriously thinking of reconsidering our statement about the signed agreement" and requesting that the Regional Office defer further investi- gation of an unfair labor practice charge previously filed by the Union , until he could discuss the matter further with it Board representative . Two days later. Berman sent the Regional Office a third letter, stating that the Meridian Central Labor Union had posted a notice at the plant on the preceding clay, recommending that the respondent be placed on the "unfair" list for its refusal to bargain . Berman 's letter added , "just at the time that I am beginning to change my attitude this action by the Meridian Central Labor Union is not going to result in a friendlier feeling on my part." 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strikes and lockouts,45 and also provided for a 20-per. cent wage in- crease, certain safety and health facilities, paid vacations, and rein-, statement and back pay for all discharged employees respecting whom charges had been filed with the Board. A fifth meeting was held on May 14, 1940, at which time the Union's second proposed contract was discussed. The respondent flatly rejected the closed-shop provision, despite the omission of an arbitration clause, on the ground that it infringed the employees' constitutional rights. The Union then asked the respondent for some counter-proposal that would protect the Union's membership in the absence of an arbitration provision. In reply the respondent offered no proposal, either then or later. Without altering its posi- tion respecting the Union's previously discussed proposals or sub- mitting any proposals of its own, the respondent also rejected the Union's additional proposals, arguing that sufficient safety and health facilities had been provided even prior to the Union's request, that it could not grant any improvement in wages or hours because of competition, that it would not agree to the "no lock-out" provision because it might wish to close the plant because of lack of orders or to adjust production, and that the reinstatement of discharged em ployees was not properly a part of the contract under discussion.4a No agreement was reached, and no counterproposals were offered by the respondent although the Union again requested that the respondent submit a counterproposal. On the same day, May 14, after the meeting, Berman mailed a letter to the Union, enclosing a written proposal "in accordance with your request." This proposal was to remain in full force from month to month, but was subject to termination by either party upon 10 days' written notice. The only obligations to be assumed by the respondent were to "follow its present policy" with respect to. (1) not discriminating or interfering with employee organization either in favor of or against the Union; (2) complying with the "Federal Wage and Hour Law"; (3) designating Independence Day, Thanks- giving Day, and Christmas Day as holidays (but paying only the regular rate for work actually performed on these three holidays or. on Sunday) ; 47 (4) giving "primary consideration to . . . loyalty 45 This provision permitted a strike or lock-out only if the proposed agreement was breached and the breach was first "submitted to the U. S. Department of Labor." As previously noted , the Union's original proposal of January 8 had merely stated in its preamble that strikes and lock-outs were not "countenanced." 46 As noted with respect to a previous proposal of the Union, the unit did not coincide with the one found appropriate by the Board in the representation case; but the parties did not consider the unit question as presenting any substantial obstacle to their reaching an agreement. 47 A representative of the Union testified that the respondent subsequently agreed that, the employees could voluntarily refrain from work on holidays. STONEWALL COTTON MILLS 257 ... family status .. . and other factors" in addition to taking "length of service into consideration " in laying off employees ; 48 an' (5) providing in general terms for the health and safety of its em- ployees during working hours . The proposal also contained an agreement by the Union not to "interfere with, restrain, coerce, or intimidate directly or indirectly any employee of the Company in the Union's efforts to secure new members ," nor to solicit members: on `.,Company property," 49 'and further provided that any employee would be "automatically discharged" if he should - "impede, slow- down, obstruct production , cease work at any time during regular work hours, and `sit -down' at their machines or in their department and refuse to leave the premises on instructions of their overseer or superintendent or other officers," or if the employee "leaves his de- partment without the consent of his overseer and goes into some. other department and interferes with the work and with any worker in any other department." The proposal also listed some 25 classi- fications of employees who were not to be "eligible for membership in the Union," including porters, cleaners , sweepers, maintenance. men, watchmen , firemen, plant-protection employees, carpenter-shop employees , yard employees, and, village crews. There was no pro- vision concerning the Union 's requests with respect to strikes and lock-outs, a closed or preferential shop, grievance procedure,, arbitration , paid vacations , or the reinstatement -of discharged employees. A sixth meeting was held a few days after the Union received the respondent's proposal, and a seventh meeting was held a few days later, on May 21, 1940, at which times the respondent's proposal was discussed . However, after discussing each section separately, the Union rejected the proposal. On the following day, May 22, the Union sent the respondent a third proposal, which made concessions with respect to the term of the agreement, the amount of the wage increase, the length of the paid vacations, the exclusions from the unit , and the number of holidays, but was otherwise similar to its second proposal. On May 31, Berman in a letter to the Union stated that the com- plaint in this proceeding had been served on the respondent , that it "obviates an agreement at present ," and that the respondent was "deferring negotiations pertaining to the agreement " until the complaint was disposed of. 48 The respondent 's proposal also provided that the respondent was at all times to be "the exclusive judge" of the employees to be hired or retained. 4? As previously stated, the respondent owns all the private property in Stonewall, a, "company town." 433118-42-vol . '16-18 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD An eighth meeting was nevertheless held on.June 15, 1940, at which time the various proposals were again discussed, but no new proposals were made by the respondent, and no agreement was reached. On June 18, the day after the hearing opened, the respondent held a further meeting with the Union, at which time the Union submitted its fourth proposal. This proposal made further concessions with respect to the term of the agreement, the amount of overtime to be- paid for work on Sundays and holidays, the question of -seniority, the scale of wages (which were to remain at the current rates but were to be subject to change only on 30 days' notice), and paid vaca- tions; and" it.' omitted any ' provision for the reinstatement of dis- charged employees or for the payment of back- pay to them.50 The proposal added a provision for arbitration, but, unlike the Union's. first proposal, made no provision for the selection of a third ar- bitrator in the event that the two arbitrators selected by the respond- ent and the Union respectively were unable to agree on a third arbitrator. The respondent's proposal was discussed at this meet- ing, as well as the fourth proposal of the Union. The respondent, in addition to adhering to its previous positions as to the Union's earlier proposals, refused to agree to maintain wages at the rates then current, subject to change only on 30 days', notice, on the ground of competition; and it refused to agree to a paid vacation of a week on the ground that it would lose a total of 2 weeks thereby.51 How- ever, the respondent agreed to accept the unit requested by the Union in its most recent proposal. In addition, the parties reached agree- ment on a 42-hour week,52 on non-solicitation of members by the Union within the mill fence or grounds, and on certain other minor matters. Since it was then very late at night, the meeting was adjourned to the following day. On resuming the adjourned meeting on June 19, Manager Berman for the first time offered to agree to an arbitration provision, provided that it was limited to a "trial period" of 90 days. Berman added that he thought an agreement could be reached on the remaining matters in dispute, and that he would be willing to continue the arbitration pro- vision after the 90-day trial period if he found it "workable." The. Union replied that 90 days was too short a time to provide a fair trial of any such provision, since arbitration machinery could not be set up and put into satisfactory operation in that brief period, and that, A The unit covered by this proposal was phrased in accordance with the unit found appropriate by the Board in the representation proceeding. 51 The respondent told the Union that this loss' of 2 weeks included the loss of a week's pay plus the loss of a week 's production. 11 The respondent refused the Union 's request to agree to a 40-hour week after October 24, 1040 , as required by the Fair Labor Standards Act, on the ground that the latter law might be repealed or declared unconstitutional. (:STONEWALL' COTTON"MILLS 259. the proposal made by the'respondent was therefore unacceptable. The respondent made no further attempt to meet the Union's objections or to explain its.. insistence on the 90-day limitation; no specific form of arbitration clause was. discussed; and no attempt was made to reach an agreement on any *other matters. • .4... Concluding findings The issue presented by the foregoing facts 53 is whether or not the respondent has refused to bargain collectively with the Union, within the meaning of Section 8 (5) of the Act. This provision imposes on an employer ail obligation to "negotiate in good faith with the view of reaching an agreement-if possible," 54 and to "enter into discussion with an open and fair mind, and a sincere purpose to find a basis of agreement." 55 In determining whether the respondent negotiated with the Union in good faith, at "the above-mentioned meetings, its previous conduct toward the Union lnust be taken" into account. Over a period of about 3 years immediately. prior to the passage of the Act, various repre- sentatives of the respondent, although meeting on a dozen occasions with representatives of Local 1996, the Union's predecessor, refused to deal with Local 1996 in good faith. When employee self-organiza- tion was resumed in the summer of 1938, after a lapse of 3 years, the respondent adopted a policy of open hostility to the Union, as here- inbefore set forth in ' Section III A. Moreover, the respondent's presi- dent, although meeting with the Union on two occasions in November 1938, flatly announced that the respondent did not intend to sign any contract, and he even refused to accept the Union's proffer of a docu- ment containing a proposed contract. The respondent's secretary repeated this announcement in December 1938. From then until April 26, 1939, the respondent failed to communicate with the Union or take any notice of the' Union's letter of February 14, 1939, enclosing a proposed contract and requesting a reply, although, its president had told the Union in November 1938 that he would meet with. the Union for further discussion in January 1939. When the respondent finally met with the Union again on April 26, 1939, it questioned the Union's majority status for>.the first time, and requested a Board election to establish whether theUnion represented a majority of the employees. 53 The respondent states in, its brief that "there is no serious conflict in the testimony" with regard to these facts, whi'h are substantially those found by the Trial Examiner. w Naional Labor Relations Board v . Highland Park Manufacturing Company, 110 F. (2d) 632 (C. C. A. 4). enf'g Matter of Highland Park Manufacturing Co. and Textile Workers Organizing Committee, 12 N. L. R. B. 1238. Globe Cotton Mills V. National Labor Relations Board, 103 F. (2d) 91 (C. C. A. 5), mod'g and enf'g Matter of Globe Cotton Mills and Textile Workers Organizing Committee, 6 N. L. R. B. 461. 260 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD On the following day, however , the respondent discriminatorily dis- charged a prominent member of the Union 's negotiating committee, as hereinafter set forth in Section III C . Thereafter the respondent, upon being advised that it would not be allowed to campaign against the Union, refused to enter into any agreement for; a consent election' for the purpose of establishing whether a majority of the employees, wanted the Union to represent them. Then, when a Board election was about to be held in the middle of November 1939, pursuant to the Union's petition under Section 9 (c), of the Act, the respondent dis- criminatorily discharged another prominent member . of the Union, as hereinafter set forth in Section III C. At the same time the respond- ent, through posted notices and its supervisory employees , in effect urged the employees to vote against the Union. In the atmosphere it had thus created, the respondent met with the Union on January 8 , 1940, but this meeting was virtually limited to the respondent's acceptance of a document containing the Union's proposals for a contract, and the scheduling of another meeting for further discussion of the proposals . At the next meeting, which was held on January 19, Manager Berman discussed the proposed contract in detail, and rejected each of its provisions -on' one of four equally spurious grounds: (1) In so far as a'closed shop was concerned, em- ployees had an inviolable right to work without being required to join a union. It should be noted, however , that the respondent's par- ent corporation , of which Berman was an official, had operated as a closed shop for many years. (2) In so far as grievance procedure was concerned, employees who did not become members of the Union might not be adequately represented by the Union, and the respondent considered itself rather than the Union as their proper representative. By virtue of the Act and the certification, however, the Union was the exclusive representative of all the employees in the unit whether or not they were union members, and the respondent was obligated to recognize the Union as such exclusive representative. (3) In so far as an arbitration provision was concerned , the respondent was unwill- ing to surrender management of the plant to a third party under any circumstances . It should be noted, however , that Berman made no attempt to persuade the Union at any time that an arbitration pro- vision would have an adverse effect on the respondent 's business. Moreover, at the June 19 meeting he discarded his previously asserted reason and offered to agree to an arbitration provision , but he pre- sented no explanation of his change of position , nor did he advance any reason for insisting on the . 90-day limitation . (4) In so far as the remaining demands of the Union were concerned, the respondent could not grant any of them because the industry in which the respond- ent was engaged was "highly competitive." Again, however, Berman :'STONEWALL 'COTTON 'MILLS ` 261 made no effort to prove his assertion or to persuade the Union that competition was the real reason for his rejection of the Union's de- mands. Nor does the record indicate that there is any truth in the asserted reasons. In, addition to his disingenuous rejection of all the Union's proposals, Berman refused to submit any written counterpro- posals on behalf of the respondent, or to sign any contract with the Union, even if an oral agreement were reached;-16 and he also refused in effect to submit any oral counterproposals, although he had prom- ised at the January 8 meeting that he would do so. Thus it is clear that the reasons Berman advanced were not the real reasons for his conduct toward the Union, and that he had no intention of attempting to work out an agreement on any of the matters in dispute.57 The respondent held another meeting with the Union on. January 24, at which the Union displayed its good faith by offering the respondent certain modifications of its original proposals ; but the respondent flatly,. rejected;-them all. Typical of the respondent's attitude was its rejection of the Union's offer to accept the provisions of the Fair Labor Standards Act in lieu of its previous demands for a 40-hour week and double time for overtime work on Sundays and holidays, on the ground that' said Act might be repealed or declared unconstitutional. In all other respects, the respondent adhered to its previously announced positions; it made no concessions and it submitted no counterproposals of any sort, although at each of the two previous meetings the Union had requested it to do so. . Thus, instead of trying to dissipate the atmosphere of bad faith toward the Union which it had established by its preceding conduct, the respondent sought to intensify it. Moreover, in furtherance of its determined opposition to the Union, the respondent on the following day, January'25, discriminatorily discharged another prominent mem- ber of the Union's negotiating committee, as hereinafter set forth in Section III C. Nevertheless, two more, meetings were held, on March 13 and May 14, at which the Union offered to make further modifications, all of which were again flatly rejected. The respondent's attitude at these meetings is well represented by its rejection of the Union's request for the reinstatement of certain discharged employees on 66 It will be remembered that at the April 26 , 1939, 'meeting President Oscar Berman had promised the Union to "work out" and sign an agreement if a majority of the employees should vote for the Union. 67 See National Labor Relations Board v. George P. Pilling & Son Co., 119 F. (2d) 32 (C. C. A. 3 ), 'enf'g Matter of George P. Pilling & Son Co . and Dental, Sur^tieal & Allied Workers Local Industrial Union No. 119, affiliated with the C. I. 0., 16 N. L. R. B. 650, where the Court held that an employer 's duty to bargain , within the meaning of Section 8 (5) of the Act, presupposes ."a common willingness among the parties to discuss freely and fully their respective claims and demands , and when these are opposed, to justify them on reason * * * [and also a common willingness ] to. make counter-suggestion or, proposal." 262 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD the specious ground that such reinstatement was not. a proper subject matter for discussion or inclusion in the proposed contract. More- over, the attorney for the respondent repeated to the Union that the respondent was under no legal obligation to sign any contract and would not do so, even if an agreement were reached.- It is thus apparent that the respondent, although it performed "gestures indic- ative of collective bargaining," as the Trial Examiner : found, was merely furthering its determined policy of refusing to make a sincere effort to reach an agreement with the Union. After the May 14 meeting, the respondent submitted its first and only written counterproposal to the Union. However, particularly in view of the discussions which had taken place during the preced- ing five meetings, it is obvious that the respondent' could not reason- ably have expected, the Union to accept the counterproposal, even as a basis for further negotiations. In the first: place,the respondent proposed to agree only to "follow its present policy"; and in addi- tion, the respondent reserved the right to. .terminate even that obli- gation on 10 days' notice. In the second place, the.Union was asked to agree not to "interfere with . . . any employee. in the Union's efforts to secure new members," nor to solicit. members within the town limits. In the third place, the Union was asked to. agree that any 'employee be automatically discharged if he - should "obstruct production, cease work at any time during ,regular working hours,. and `sit-down' . . . in their department," or if he "leaves his depart- ment without the consent of his overseer and interferes with the work . . . in : any other department.","' In' ;the fourth place, the Union was asked to exclude from membership about 25 classifications. of employees, many of which the Board had specifically included in the unit found appropriate in the prior representation proceeding at the respondent's request. Lastly, no proposals l were made with respect to the Union's well known desires for a closed or preferential shop or arbitration as an alternative, paid vacations, grievance pro- cedure, the reinstatement of previously discharged employees, or the abolition of lock-outs as a counter-balance to the abolition of strikes.5a Moreover, the respondent's failure to include in its proposal a-pro- vision for some procedure for handling grievances, and its refusal to agree to anything more than "its present policy" or even to accept the unit which had been found appropriate by the Board, clearly 58 The Union objected to this provision on the ground that it might be used to justify the discharge of an employee if he indulged in such conduct as going to the rest room. 19 It will be remembered . that, with respect to seniority , the respondent proposed to give "primary consideration to .. '. loyalty ... family status ... and other factors ," but also offered to agree to take "length of service" into account in making lay-offs. With respect to wage scales and overtime rates, the respondent proposed merely to "continue the present policy of complying with" the Fair Labor Standards Act. : ^ i :.: - 1 1 STONEWALL COTTON MILLS 263 evidence, we believe, its failure to negotiate with the Union in good faith.60 Despite the nature of this counterproposal, the Union attended two more meetings with the respondent in May in a further effort to reach an agreement; but the respondent did no more than reiterate its previous position. Then, after receiving from the Union another proposed contract incorporating additional modifications, the re- spondent notified the Union that it would hold no further negotia- tions because of the' complaint served on it in this proceeding. It is clear, however, that the service of the complaint did not excuse the respondent from its duty to bargain with the Union61- The respondent's demonstrated bad faith in dealing with the Union -was not mitigated by the fact that further- meetings were held in June, since such meetings were merely repetitions of the previous meetings. Although the Union offered additional modifications, the respondent characteristically rejected the Union's proposal of a paid vacation of 1 week on the specious ground that it would thereby lose 2 weeks per employee; and it also rejected a proposal to main- tain wages at the current scale subject to change only on 30 days' notice 62 To be sure; there were certain items of a minor nature on which the respondent reached an understanding with the Union, and in addition it made a last-minute offer to agree to an arbitration pro- vision provided that it was limited to a "trial period" of 90 days. But when the Union objected that the 90-day period was much too short to constitute a. fair trial of the workability of arbitration, the. respondent made no effort to meet the objection, nor did it attempt to explain why it insisted on a limitation of 90 days. Under the circumstances, the few minor concessions belatedly offered by the respondent are 'clearly insufficient to purge it of its bad faith in dealing with the Union. On the contrary, in all its negotiations with the Union the respondent plainly refused to enter into discussion with an open. and fair mind and a sincere purpose to find a . basis of agreement. That the respondent is under a fundamental misconception of its duty in negotiating with the Union is clearly exhibited by its argu- 8° See Matter of Woodside Cotton Mills Company and Textile Workers Organizing Com- mittee, 21'N. L. R. B. 42. 81 See Matter of Somerset Shoe Company -and United. Shoe Workers of America, 5 N. L. R. B . 486, enf'd National Labor Relations Board v . Somerset Shoe Company, 111 F. (2d) 681 (C. C. A. 1) ; Matter of Manville Jenckes Corporation and Woonsocket Rayon Company and Independent Textile 'Union of America, B0 N. L. R. B., No. 60. 12 See Inland Lime & Stone Company v. National Labor Relations Board, 119 F. (2d) 20 (C. C. A. 7), enf'g Matter of Inland Lime and Stone Company and Local No . 377 of the 'International Union of• Mine, Mill and Smelter Workers (C. I. 0.), 24 N . L. R. B., No. 79, where the Court rejected sub silentio the company's argument that its refusal to agree to continue . its current policies in the future was not evidence of bad faith in negotiating with , the Union, and, enforced the Board's'order based on a violation of Section 8 (5) of the Act. 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment that the "same principle that governs negotiations with the Union for a sale of the mills, governs negotiations with the Union for a labor contract." We find, as did the Trial Examiner, that the respondent's attitude clearly showed that it considered itself under no obligation to try to reach an agreement. The respondent contends that it had reached a "complete accord" -with the Union "upon every point except the period of time during which the [arbitration] agreement was to run"; that there was no "testimony that the employer [respondent] did not adhere to its contentions [concerning the duration of the arbitration agreement] .... with an honest purpose and in good faith"; and that the "bad faith was on the part of the Union." However, the facts recited above clearly disprove the respondent's factual assertions that agree- ment was reached on every issue except the duration of the arbitra- tion clause, and that the Union negotiated in bad faith with respect to that or any other issue." Moreover, the record completely invali- dates the respondent's arguments that further testimony was needed. to prove its bad faith in maintaining its position on that issue, and that the Union's expressed attitude excused the respondent from its obligations under Section 8 (5) of the Act. We find these conten- tions without merit. Under the circumstances and on the entire record, we find that on January 8, 1940, and at all times thereafter, the respondent refused to bargain collectively with the Union as the exclusive representative of its employees in the aforesaid appropriate unit, thereby interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The discharges and refusals to reinstate W. A. Taylor first worked at the respondent's plant from 1900 to about 1904, was next employed there for about 6 months in 1934, and was hired again • in-1936,- as a "roving hauler" 64 in the No. 2 spinning room under the supervision of Overseer Arthur F. Richard- son. As hereinbefore set forth, Taylor was prominent in the con- ,certed activities undertaken by the employees in July 1938 and was one of the most active organizers of the Union. The Union's charter was installed at a meeting in his home in August 1938 and he became 15 See Singer Manufacturing Company v. National Labor Relations Board , 119 F. (2d) 131 (C. C. A. 7), cert. denied, 61 S. Ct. 1119, mod'g and enf'g Matter of Singer Mana- ,facturing Company and United Electrical Radio and Machine Workers of America, Local No. 917, affiliated with the Congress of Industrial Organizations , 24 N. L. R. B., No. 41, where the Court held that an employer could "be compelled to conduct negotiations in an honest attempt to arrive at an agreement," even where the "record may disclose instances of inconsistency upon the part of" the union involved. . 84 The chief duty of this position was to keep certain machines .(called "spinning frames"), supplied with bobbins of "roving" or coarse yarn obtained from the "carding room." STONEWALL COTTON MILLS 265. the Union's first recording secretary. ' He was an active member of the union committee which met with various officials of the respond- ent in October, November, and December 1938, and on April 26, 1939.15 On April 27, 1939, the day after this last meeting, part of Taylor's, department was shut down and Taylor was advised that he was being laid off.66 However, the two other roving haulers on Taylor's shift, although they had less seniority than Taylor, were. retained. Immediately after Taylor's lay-off on April 27, Overseer Richard- son was called into the office of Assistant Superintendent Jack Pirkle and told that certain supervisors had complained to him about Tay- lor's work;'and he was asked to make a written statement about the lay-off. Although in his 7 years' experience at the respondent's. plant Richardson had never. before been asked to make such a state- ment, Pirkle did not explain to Richardson why he wanted it. The respondent did not call Pirkle to testify concerning his reasons for taking this unusual course with respect to Taylor's lay-off,67 nor did it offer Richardson's statement in evidence or give any reason for not doing so. On April 28, 1939, A. C. Smith,68 the second hand who had been Taylor's immediate supervisor for about 4 or 5 months immediately prior to the lay-off, wrote a note to Taylor stating that business was: slack, and adding, "When operation is resumed your job will be waiting for you." On June 19, when operation of Taylor's job was resumed, Taylor applied to Richardson for reinstatement. Rich- ardson replied that he planned to put another employee on the job. When Taylor asked why he was not being reemployed, Richardson answered, "I don't know, Alex, you are dealt out." Taylor then inquired if there was anything against his work, but Richardson replied in the negative, adding that Taylor was as good a roving hauler as he, (Richardson) had .69 In August 1939 Berman wrote to William R. McComb, acting administrator of the Division of Public Contracts, Department of Labor, in connection with that Division's investigation of Taylor's 15 That Taylor 's union activities had attracted the respondent 's hostile attention is' shown by disparaging remarks about Taylor made in October and December 1939 by Will Privett, Add Privett, and Harrington. Although the complaint alleged that Taylor ' s discrimination occurred "on or about" June 19, 1939, the Trial Examiner found that the evidence established its occurrence at this time . The respondent consented at the hearing that the complaint be amended to conform to the proof, and it did not except to this finding on the ground that it fell outside the scope of the proceeding. 01 Berman testified at the hearing that he had previously instructed his supervisory employees to "secure statements about any controversial matter . . . that might have occasion to be brought up again." ^ Sometimes referred to in the record as Adrian H. Smith. e9Although Richardson testified concerning this incident , he did not deny the foregoing conversation , as testified to by Taylor. 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lay-off and other matters, and 'advised McComb that Taylor had "not been discharged," but had merely "been laid off because of the neces-. .sity of reducing the number of workers in the plant." On October 20, 1939, Berman wrote to the Regional Office of the Board stating that Taylor had not been reinstated since. the lay-off because his, job had ,been "eliminated."" Richardson admitted that he had "heard," prior to April 27, that Taylor was active in the Union ; that the two other roving haulers on Taylor's shift had less seniority than Taylor; and that he never- theless selected Taylor for the April 27 lay-off while retaining these two other employees. But he claimed that he did so because these two other employees were "faster" than Taylor and, unlike Taylor, always remained "on the job." '1 However, he admitted that he him- self had never observed anything wrong with Taylor's work during the entire 3 years of Taylor's employment in his department," but that he had relied on complaints he had received in the past from Super- visor James W. Downs and four other employees in an intermediate supervisory position. . He then admitted that, even when such com- plaints were made, he never investigated them or mentioned them to Taylor." Moreover, Richardson did not explain why, despite these alleged complaints, he considered Taylor's work good, or what he meant by the statement that Taylor was "dealt out." Finally, he admitted having received no complaint whatsoever about Taylor's work from Taylor's immediate supervisor, Smith. Taylor testified without contradiction and we find that no one in authority had ever complained to him about his work. In addition, J. R. Brown, who was superintendent of the plant until February 1939, testified that he had never heard any complaints about Taylor's work, although he would have heard them "if there was anything wrong." Manager Berman testified that he had not learned of any complaints about Taylor's work before Taylor was laid off. We find that Taylor's alleged deficiencies were not the real cause of his lay-off and rejection for reinstatement. The respondent further contended that it had instituted a new rule about June 1, 1939, requiring an applicant for work, even if he were 70 Although at the hearing Berman testified that he meant by this statement merely that one of the three roving haulers was not needed at the time of the lay-off , it is clear and we find that the statement to the Regional Director will not bear this interpretation but means rather that Taylor 's employment was permanently severed. 71 Richardson admitted that work was not always available for Taylor , adding, "Some- times we were short." 43 Taylor and Richardson worked during somewhat different hours, but their shifts ,overlapped to the extent of 4 hours per day. 73 In addition to ' Downs, Supervisors Dalton Clark , James Barnes, Clarence Harper, and Randolph Gilbert also testified that Taylor's work was unsatisfactory. . 74 Richardson further- testified that ordinarily he , would report matters which ,he himself was unable to settle to Manager Berman or to Superintendent Brown. He did not claim that Taylor's alleged deficiencies were ever reported to either of them. ''STONEWALL COTTON MILLS 267 :a laid-off employee, to file a personnel card 45 at the office before being entitled to.reemployment, and that, since there was no such card on file for Taylor, the respondent therefore could not be said to have ,discriminated against.Taylor, in failing to reinstate him. It is obvious, however, that the asserted rule does not'explain the respondent's prior action in laying Taylor off on April 27. Moreover, Richardson ad- mitted that after the rule was adopted he hired many employees who had not previously filed written applications at the office, but at no time did he claim that the lack of such an application was the reason he rejected Taylor's request for reinstatement when operations were resumed on June 19. Thus the absence of a written application cannot explain Richardson's rejection of Taylor's request for reemployment on that date. It is clear from the foregoing facts that on April 27, 1939, one of the roving haulers under Richardson's -supervision was to be laid off because of the requirements!of the. respondent's business; that Richard- son selected Taylor as the one for the lay-off, although Taylor had more seniority than the two other roving haulers on his shift; and that Richardson's asserted reasons for selecting Taylor for lay-off were not his real reasons for doing so. On the other hand, Taylor had been outstanding for his union activity since September 1938, when the Union's organizing campaign started. Immediately after the lay-off the respondent took the unprecedented step of prepar- ing and signing a statement about the lay-off. Moreover, this state- ment was withheld by the respondent at the hearing. In addition, Richardson rejected Taylor's request for reinstatement on June 19 with the unexplained statement that Taylor, although admittedly a good roving hauler, was "dealt out." These considerations impel us to conclude that Richardson's real reason for selecting Taylor as the .roving hauler to be laid off on April 27 was Taylor's union activity :and the respondent's resolve to discourage membership in the Union. The respondent's subsequent, contradictory attempts to explain its dis- ,crimination against Taylor by advising the Division of Public Con- -tracts that Taylor was merely laid off temporarily, pending resumption of his job, and by advising the Board's Regional Office that Taylor was laid off because his job had been permanently discontinued, leave no doubt of the correctness of our conclusion. Under all the circumstances, including the respondent's. general anti- union animus as disclosed by the entire record, we find, as did the Trial 76 As a result of a hearing conducted by the Department of Labor in May 1939, and .because of the need.for certain personnel information about the employees , the respondent .prepared a form .card for recording an employee's. name and address , such information as the mill , department, and shift where he worked , his personal history and status, a ,physical description, (with specific reference to whether he wore glasses or a truss), how long employed , and his Social security number. 268 DECISIONS OF NATIONAL -LA•BOR. RELATIONS BOARD Examiner, that the respondent, by laying Taylor off on April 27, 1939, and by refusing to reinstate him at all times thereafter, discrim- inated in regard to his hire and tenure of employment, thereby dis- couraging membership in the Union and interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. C. A. Holliman was first employed at the respondent's plant from 1919 to 1923, at which time he left voluntarily. He was again em- ployed in 1930, as an intermediate-frame hand 71 in the No. 2 card room of the No. 2 mill, under the supervision of Overseer Will M. Privett. As hereinbefore set forth, Holliman had assumed a leading role in the union activities conducted by Local 1996 during the years 1933, 1934, and 1935. In October 1938, shortly after joining the Union, he was told by Supervisor Add Privett to withdraw from the Union if he did not want the plant to shut down and starve -the=employees to death; and a year later he was told by this same supervisor that he would lose his job if he did not stop associating with certain other employees who were taking an active part in the, Union. He was also warned by his overseer, Will Privett, in October 1939, that he would be discharged if he continued to associate with the aforesaid employees. On Tuesday, October 24, 1939, certain new standards required by the Fair Labor Standards Act became effective. At the same time, the respondent instituted an increase in the piece-work rates there- tofore in force. Holliman went to Will Privett about this time to inquire what his new rate would be. Upon learning that his rate had been raised only 1 cent per hank while the rate of all the other inter mediate-frame hands on his shift had been raised 3.6 cents per hank,? Holliman asked Privett if he thought such treatment was fair. Privett replied that Holliman was fortunate to receive any raise. Holliman told Privett that in that case he could countermand the raise, left Privett's office, and went to see Manager Berman. Berman told Holliman that Privett had devised the new rates, and asked Holliman what he would do if he did not get any further increase. Holliman replied that he could not "do anything but quit." Berman asked if Holliman would really quit if the raise was not forth- coming. Holliman answered, "I don't guess I would, no, sir," and added that he did not have another job in view and would be foolish to quit the one he had. Berman finally said that he would see Privett about Holliman's new rate, and told Holliman to come back the fol- lowing day. Holliman returned to see Manager Berman on the next 76 The chief duty of this position was to operate a certain set of "intermediate frames" or machines which reduced the comparatively coarse "roving" or yarn in diameter and made it stronger by twisting it. 77 Whether or not the new wage rate was discriminatory is not in issue and we express no opinion thereon. - STONEWALL' COTTON MILLS 269: day, but Berman said that he had been, busy' and had: not yet seen Privett. However, Berman asked Holliman "if another penny would satisfy him." Holliman replied that it would.. Berman then said to Holliman, "You go ahead, go back and- think about it. We will get together on the other penny." Holliman resumed his work, feeling that his rate was to be increased to 16 cents per hank. ' As to the fore going discussions with Holliman, Berman merely testified that he did not "recall" them; but he admitted that some' employees had come to him to discuss their new rates about' that time, and added that only the "preponderance of the discussions made an impression" on him. We find that the discussions took place as above, set forth. On Friday, November .3, the time sheet for the week including October 24 (the date of the wage-rate changes) was 'prepared' and submitted to Holliman for his inspection and signature, as was cus- tomary. This sheet showed that Holliman had worked 6 8-hour days, had produced a total of 127 hanks, was to be paid at a rate of 15 cents per hank, and was to be credited with an additional amount for 6 hours overtime. The time sheet also noted deductions for rent and for "Fed. O. A. B." from the total earnings so arrived at, and contained a final notation of the balance due Holliman. Although disappointed with his rate, Holliman nevertheless signed the sheet, and was then transmitted to the pay office for the purpose of making up a pay envelope.78 On Saturday, November. 4, Holliman received his pay envelope for the week ending October 28. The pay envelope contained the addi, tional notation, "Deduct 61¢ for Monday rate and 2 hours over-time." Holliman did not understand this notation, and thought that he was being "beaten out of" 61 cents. He therefore took the pay envelope to Privett and requested an explanation of the notation. According to Holliman, Privett brusquely replied that Holliman "should take it to Berman." Holliman then said to Privett that he thought it, was Privett's duty to explain the notation ; whereupon Privett told Holli- man that he was "fired," gave him a time slip, and told him to go to the timekeeper for his pay.- Holliman thereupon became angry and lost his temper in, discussing the matter with Privett. Privett, how- ever, said to Holliman, "I am not discharging you for that [the argu- ment], but for the attitude you took toward me for the past several months." At Privett's request, Supervisor Add Privett then accoln- panied Holliman to the timekeeper, who prepared a statement of 71 This time sheet bears a notation in red ink about a further 61-cent deduction. How- ever, the notation was not , on the time sheet when Holliman signed it. n Just prior to this time, Holliman had been prominent in distributing campaign cir- culars for the Union, urging the employees to vote for the Union in the coming Board election. 270 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD Holliman's time. Holliman then submitted the statement to the. cashier and received his pay. At the hearing the respondent attempted to.show by the testimony of Will Privett and Manager Berman that Holliman's services were terminated by his own voluntary resignation rather than by dis- charge. Privett testified that, when Holliman came to him about the pay envelope on November 4, he replied that Holliman should go to the timekeeper for the desired explanation ; that Holliman insisted that Privett explain the matter; that Privett said that he- would have to put someone else on Holliman's frames if Holliman did not change his attitude; and that Holliman then replied, "There is the damned frames. I have got a job waiting. I want- my time.' In similar vein, Berman testified that, when Holliman came to see him about his termination of employment, he asked why Holliman had resigned. On the other hand, Berman claimed that he "did not remember" Holliman's answer to that question. J. W. Weekly, a frame hand who worked next to Holliman, testified that Holliman had said to him immediately after the "run-in" with Privett on November 4, "They canned me." George Kennedy, an employee called by the respondent, testified that Holliman told him that he (Holliman) had been "fired." Supervisor Add Privett testified that, when he took Holliman to the time office on November 4, Holliman said that he did not "want his time." Moreover, at one point in his testimony Will Privett himself admitted that Holliman was dis- charged, but added that it was not because of Holliman's conduct with respect to the other employees,8e but because of "his conduct and the way he talked to me when he came about his pay." On several other occasions in his testimony he referred to Holliman's termination of employment as a "lay-off." Si The Trial Examiner did. not credit the testimony that Holliman's services were terminated, by his resigna- tion, nor do we. We find that Holliman was discharged by Will Privett on November 4, 1939. Later that day, Holliman Went to see Berman",about the matter, but Berman told him that he could not talk with :hint at, that time and asked him, to. return ' "next week." On Monday, November 6, Holliman went to the plant and again spoke to Berman, who told him 80 The respondent adduced testimony that, prior to Holliman 's discharge the other employees operating intermediate frames had complained to their supervisors that Holli- man frequently gathered up all the empty bobbins for his own use and, that none were available for them when needed. This conduct was remedied by the supervisors several weeks prior to the discharge . The respondent did not contend that this conduct had any relation to the discharge. 81 In addition , will Privett frankly admitted in a signed statement prepared at Berman's request on November 15, 1939, that he was "tempted to discharge" Holliman a few days before November 4, because of Holliman's "Insolence." In its brief filed with the Board, the respondent admitted that Holliman was discharged, but claimed that there were "independent reasonable causes" therefor. STONEWALL COTTON MILLS 271. to come back the following day, adding that he was "very busy." 8z On the next day, Holliman returned again to see Berman, who said that he was still very busy , but promised to send for Will Privett and Holliman and get them together to settle the matter . Holliman then left Berman's office . However, Berman had not sent for Holliman up to the time of the hearing 7 months later. On November 15, Privett , at the request of Berman, signed a state- ment concerning the termination of Holliman 's employment. This statement recited that when Holliman first , came to Privett about the new rate, Holliman complained in a disrespectful manner; that Privett "was tempted to discharge him, in view of his insolence," but did not do so at that time ; that, when Holliman brought his pay envelope to Privett on November 4 and claimed that the respondent had "beat me out of part of my time," Privett explained it and "showed him that it had been figured correctly " ; 83 that, when Holli- man apparently failed to understand Privett's explanation , Privett asked him to go to the timekeeper to have it explained again; that Holliman then became abusive and finally said that he "intended to resign" and "already had a job promised him elsewhere"; that Privett told Holliman that he could resign if he wished to, and that the respondent did not want to force anyone to work at the plant if he was not satisfied with his "treatment and other conditions"; that Holliman then said, with a wave of his hand, "There are my machines; give me my time"; that Privett then sent for Supervisor Add Privett to take Holliman to the timekeeper for his pay ; and that Holliman thereupon started to curse Privett and create a dis- turbance. The statement ended by declaring that Holliman "was not discharged , he resigned of his own free will and accord." 84 About 2 or 3 weeks after the discharge , at the suggestion of the president of the Stonewall Bank, Holliman went 'to Will Privett,, apologized, and asked for his job back, saying that he had looked for another job "all over the country" but could not find any. Privett answered that he would keep Holliman in mind if there was an open- ing, and would instruct all his second hands to send for Holliman to fill the first opening they had. At the hearing Privett admitted having this conversation but he claimed, however, that it took place in February 1940, that it was 82 Privett put a new employee on Holllihan 's machine on the same day. 13 Privett testified at the hearing that he did not understand the 61-cent deduction and could not explain it. s+ Berman admitted that lie "might have heard " at the time of securing this statement that Holliman belonged to the Union , but claimed that the reason he had Privett sign the statement was because Holliman had "a very bad record" and had "gotten into a lot' of recent trouble." No proof ' was' offered concerning the "bad record " of Holliman or the "recent trouble" lie had gotten into . On the contrary , the evidence discloses that Holliman's fellow employees did not consider him undesirable to work with. 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the first time .that.Holliman,had come to see him after ,the November 4 discharge to ask for work, that.he told Holliman at that time that he would be willing to reinstate Holliman if a job became available,85, that the plant went on "short time" about 2 weeks after the conver- sation, and that he thus "never did have an opening- for Mr. Holli- man." Upon his observation of Privett, the Trial Examiner did not believe Privett's testimony that this conversation occurred,,i,n Febru- ary 1940 or that there never was an opening for Holliman after the :apology; nor do we believe such testimony. Holliman returned to the mill about half a dozen times thereafter, to see Privett about getting work, but no job of any kind was ever .offered to him. Holliman testified without contradiction,. -and we find, that Will Rasco and Nate Smith, two second hands in. the No: 2• card room at the mill, each told him that they could use him and would be glad to do so if only Privett had authorized his employ- ment, but that Privett had never given such authorization.s° Holliman's wife testified that she also went to Will Privett about,' -2 weeks after the discharge, and asked him to reemploy Holliman. Privett replied that he would send for Holliman as soon. as there was an opening for him. Although Privett denied having any conversa- tion at all with Holliman's wife until April 1940, we do not credit his assertion concerning the time of the conversation, because of the re- peated contradictions throughout his entire testimony, and the Trial Examiner's refusal to credit his testimony concerning the time of the conversation, with Holliman. We find that the conversation occurred as testified to by Holliman's wife. The foregoing facts show that Holliman was prominent for his union activity, as Will Privett admitted knowing, and ,that about October 1, 1939, Privett threatened him with discharge if he con- tinued associating with certain other prominent union members. In addition the record clearly reveals the respondent's anti-union animus and the prominence of Holliman as an object of that animus. On the other hand, Holliman was admittedly a satisfactory employee, and had worked under Privett for 9 years prior to his discharge. Under these circumstances, the respondent did not attempt to argue that Holliman was discharged for cause, but rather claimed that he resigned voluntarily. However, we have found that this claim is plainly without basis in fact, and at one point in the hearing, Privett. through apparent inadvertence, admitted that Holliman ceased "work as the result of a discharge. In view of these considerations, we find that the real reason for Holliman's discharge was foreshadowed by 85 Privett also claimed that Holliman told him at this time that he' (Holliman) had a job elsewhere, but did not explain why Holliman came to see him under the circumstances. 88 Neither Rasco nor Smith was called to testify concerning their statements to Holliman. STONEWALL COTTON MILLS 273 the treament Berman and Privett accorded to him in connection with his request for an appropriate adjustment of his new wage rate, and is further evidenced by Privett's refusal to re-employ Holliman at any time after the discharge, despite his promises to do so. The fact that the discharge was carried out in the course of an argument about an alleged underpayment of 61 cents- in wages, thus giving the dis- charge a superficial appearance of spontaneity, cannot serve to justify the respondent's discriminatory action. Under all the circumstances, including the respondent's anti-union animus as disclosed by the entire record, we find, as did the Trial Examiner, that the respondent, by discharging Holliman on Novem- ber 4, 1939, and by refusing to reinstate him at all times thereafter, discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the Union and interfering with, restrain- ing, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. Hill Logan was first employed at the respondent's plant in 1912 or 1913 for about 4 months. He was hired again in May 1919, and filled various jobs until the early part of 1923, when he was promoted to the position of "card grinder." In October 1938 Logan joined the Union, but did not become active until the latter part of 1939, when he was elected vice president. When representatives of the respondent and the Union met on the morning of January 8, 1940, to commence negotiations for a collective bargaining agreement, Mana= ger Berman, at the request of one of the employees on the -Union's committee, sent Logan's overseer, Will Privett, to summon Logan to the meeting."" Logan became ill a week later, on Monday, January 15, and was out during the rest of that week. He returned to work on Monday, January 22, but, upon finishing his clay's work, he still did not feel. well. He therefore told his immediate supervisor, Add Privett, that he probably would not be in the following day unless he felt better. On Tuesday, January 23, there was an extremely heavy snowfall, which made the 9 miles of country roads between the mill and Logan's home impassable for 2 days."' Logan, although feeling well enough to return to work, was therefore unable to do so until Thursday, Jan- uary 25. On arriving at the plant on the morning of January 25, 81 The chief duty of this position is to service the "carding machines ," which pull apart and clean the tightly packed raw cotton and separate its fibers , as one of the first steps in transforming it into thread to be used for weaving. 88 Privet denied knowing that Logan had attended .the January 8 meeting or that there had been such a meeting. The Trial Examiner did- not credit this testimony ; nor' do we. 89 Logan had lived at this place since 1931 , and on several previous occasions had been unable to get to the mill because of the condition of the roads. Once, in 1938, he was out for 12 or 13 days because of their impassabilty. 433118-42-vol. 36--19 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . Logan was told to report to his overseer, Will Privett. Upon doing so, Privett said to him, "I am going to lay you off." When Logan asked for the reason, Privett answered, "You are not reporting regu- lar enough." Logan then told Privett that the, impassability of the roads had prevented him from reporting for work on January 23 and 24. Privett replied,. "That is not my hard luck. They are look- ing for me to run the mill." He then repeated that he was laying Logan off, adding that he would get someone else who would work every day.s° The interview thereupon terminated. On the same day, at Manager Berman's instruction, Privett prepared and signed a written statement concerning Logan's discharge. The statement did not mention any complaint about the quality of Logan's work, but merely claimed that Logan had become irregular in his attendance and had thereby allowed the carding machines to get into bad condition, and that he was discharged for that reason. To prove this claim, the statement set forth a transcript from the respondent's records of Logan's attendance for each of the 32 weeks from the one ending June 24, 1939, to the one ending a few days after his discharge. This transcript shows that, during 5 weeks in the summer of 1939, Logan did not work at all,91 that during the week and a half immedi- ately preceding his discharge, he worked only 2 days, because of his illness and the condition of the roads, as set forth above; that during each of the other weeks, he never worked less than 4 days, and he usually worked about 5 and occasionally 6 days (as during the first week of January 1940) ; and that, except as noted, there was no substantial variation in the uniform pattern of his attendance throughout the entire 32-week period. Excluding Logan's 5-week absence due to ill- ness in the summer of 1939, his average workweek during this period consisted of slightly more than 4.55 days. In order to evaluate this attendance record, a week-by-week tran- script of Logan's attendance for the 76 weeks between January 1, 1938, and the period covered in Privett's statement was also intro- duced in evidence. This transcript shows that Logan worked a total of 3,5601/ hours during these 76 weeks. His average workweek thus consisted of slightly less than 4.7 days during this earlier period. Despite the substantial similarity in Logan's attendance during these two periods, Privett reiterated at the hearing that Logan's irregular attendance "in the last 12 months . . . especially since the first of January" was the cause of Logan's discllarge.92 In amplifying this no On the preceding day Privett had secured someone else to take Logan 's place. I This absence was due to an illness , and occasioned no disciplinary action. It should be noted that Logan was inactive in the Union at the time. ea Privett admitted that Logan was a "good man," that he had never laid Logan off for disciplinary reasons at any time prior to the discharge, and that, if Logan had "come back to me, and assured me he would work regular ..., I would be glad to put . him back." STONEWALL COTTON MILLS 275 claim, Privett testified that, prior to Logan's discharge, there was a different card grinder at each of the two mills on each of the three shifts, making a total of six card grinders; that of these six, only Logan and Grady Riley, who both worked in the No. 2 mill, failed to attend regularly enough to keep the cards in their mill in good condition ;93 that in January 1939 he first asked Logan why he had been absent, and warned him of "the importance of being there on the job- every day"; that, after Logan's 5-week illness in the summer of 1939, he repeated this statement to Logan, and did so again for the last time "around December 30"; that, although the carding machines in the No. 1 mill were in good shape, those in the No. 2 mill were getting into bad condition; that he therefore hired J. M. McCrary as head card grinder on January 1, 1940, with responsibility for the carding ma- chines in both mills ; that finally, at McCrary's recommendation,- he discharged Logan on January 25, 1940, and Riley about 2 weeks later,95 and that no other card grinders had to be discharged. On the other hand, McCrary testified that during his first week at the respondent's plant he worked, not in the mill where Logan and Riley had allegedly permitted the cards to get into bad condition but in the other mill, where, Privett testified, the cards were satisfac- tory; that he did not get to the mill where Logan and Riley worked until his second week; that sometime before January 14 he told Privett that Logan would have to be discharged because of the bad condition of the cards; that Privett.•replied that he would speak to Logan about them; that on a second occasion about January 14, Privett said that he had spoken to Logan, but that "it didn't do any-good"; 91 and that he (McCrary) thereafter insisted on Logan's discharge. However, in view of McCrary's hostility to the Union, as established by his remark hereinbefore set forth in Section III-A, and because his testimony conflicts with Privett's not only concerning which of the two carding rooms needed his urgent attention when he was first hired, but also with respect to his discussions of Logan's work with Privett, we are unable to credit his testimony that he recommended Logan's discharge because of the unsatisfactory results of Logan's work rather than because of Logan's union activity. 9s Privett also testified that another card grinder was frequently called on to work overtime on account of Logan 's absences. 94 Privett did not mention this alleged recommendation either to Logan at the time of the discharge or in his written statement prepared immediately thereafter. It is clear from all the evidence that this recommendation , if made, was based only on Logan's failure to report regularly for work. 95 The complaint did not- allege that Riley 's discharge was discriminatory . The record shows that Riley was not a member of the Union . It should be noted that no written statement was prepared concerning Riley's discharge. 99 As previously noted , Privett testified that the last time he spoke to Logan about his "irregular attendance" was about December 30, 1939. 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD But even were we to assume that McCrary recommended Logan's discharge to Privett for non-discriminatory reasons, we find that Privett did not follow this recommendation. This is clear from Privett's assertion that his only reason was Logan's failure to report regularly. We further find that this asserted reason was not the real reason. On the contrary, it clearly appears that Logan was an old and experienced card grinder, and that his attendance had remained at a substantially uniform level since January 1, 1938, but for the excep- tions noted. In contrast to the spuriousness of Privett's asserted rea- son for Logan's discharge is Privett's knowledge of Logan's recently renewed union activity 97 and his hostility to the Union, as demon- strated by his repeated statements to employees hereinbefore set forth in Section III-A and by his discriminatory discharge of C. A. Holliman 21/2 months earlier. The respondent argued that it had to pay overtime rates to another card grinder named Mazingo for doing Logan's work when Logan was absent, and it called its employment agent, Cleo Boutwell, to prove the amount of overtime Mazingo worked for Logan. However, after vainly attempting to do so, Boutwell finally admitted that he was unable to explain how Logan's absences increased the respondent's costs due to the overtime rates paid to Mazingo. We find this conten- tion without merit as an explanation of the discharge. Under the circumstances, including the respondent's antiunion animus as disclosed by the entire record, we find, as did the Trial Examiner, that the respondent,. by discharging Logan on January 25, 1940, and by failing to reinstate him at any time thereafter, dis- criminated in regard to his hire and tenure of employment, thereby discouraging membership in the Union and interfering with, restrain- ing, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. Mrs. Della Todd and J. A. Holloman were alleged in the complaint to have been discriminated against on or about June 19, 1939. In his Intermediate Report'the Trial Examiner found that these allegations were not supported by the evidence in the record. No exceptions were filed to these findings. We have reviewed the evidence bearing on these two cases, and find, as did the Trial Examiner, that the respond- ent did not discriminate against these two individuals. We shall there- fore. dismiss the allegations of the complaint .with regard to the discharge of these employees. 97 When asked if he had noticed any change in Logan's conduct after Logan became an officer in the Union, Privett replied , "No, sir, I never noticed any change in Mr. Logan .after * * *" He then stopped abruptly and at once denied knowing of Logan's union .activity. However, we have found, as did the Trial Examiner , that at Berman's direction Privett summoned Logan to attend the respondent 's meeting with the Union on January .8, 1940 . We reject Privett's denial, as did the Trial Examiner. STONEWALL COTTON MILLS IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 277 We find that the activities of the respondent set forth•in Section III, 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 engaged in unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action which we deem necessary to remove and avoid the consequences of such unfair labor practices and otherwise to effectuate the policies of the Act. Having found that the respondent, to discourage membership in the Union, discriminated in respect to the hire and tenure of employ- ment of W. A. Taylor on April 27, 1939, C. A. Holliman on November 4, 1939, and Hill Logan on January 25, 1940, we shall order it to offer full reinstatement to these employees, and to make them whole for their loss of wages by payment to each of them of a sum of money equal to that which he would normally have earned during the period from the date of the respondent's discrimination against him to the date of the offer of reinstatement, less his net earnings ss during said period. Having found that the respondent, on January 8, 1940, and at all times thereafter, refused to bargain collectively with the Union, we shall order it to do so upon request. Having found that the respondent did not discriminate against Mrs. Della Todd and J. A. Holloman, we shall dismiss the complaint with respect to them. 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 Federal Local Union 21723, affiliated with American Federation of Labor, is a labor organization, within the meaning of Section 2 (5) of the Act. s' By "net earnings" Is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. 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. Monies received for work performed upon Federal , State, county, municipal, or other work-relief projects shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2.: By discriminating in regard to the hire and tenure of employ- ment of W. A. Taylor, C. A. Holliman and Hill Logan, thereby dis- couraging membership in Textile Workers Federal Local Union 21723, affiliated with American Federation of Labor, the respondent has engaged in and is engaging in unfair labor practices, within the mean- ing of Section 8 (3) of the Act. 3. The respondent's production and maintenance employees, includ- ing the mill carpenter and the office porter, but excluding clerical and supervisory employees, overseers, second hands, and persons employed in the respondent's store, at all times material herein constituted and now constitute a unit appropriate for the purposes of collective bar- gaining, within the meaning of Section 9 (b) of the Act. 4: Textile Workers Federal Local Union 21723, affiliated with American Federation of Labor, was at all times material herein and now is the exclusive representative of all the employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 5. By refusing to bargain collectively with Textile Workers Federal Local Union 21723, affiliated, with American Federation of Labor, as the exclusive representative of all its employees in such unit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. ' ' ' 6. 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. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) -of the Act. 8. The respondent has not discriminated in regard to the hire or tenure of employment of Mrs. Della Todd or J. A. Holloman, within ,the meaning of Section 8 (1) and (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, Stonewall Cotton Mills, Stonewall, Mississippi, its. officers, agents, successors, and assigns,, shall: ' 1. Cease and desist from : (a) Discouraging membership in Textile Workers Federal Local Union 21723, affiliated with American Federation 'of Labor, or any other labor organization of its employees, by discharging, laying off, or refusing to reinstate or reemploy any of its employees, or by in STONEWALL COTTON MILLS 279 any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment; (b) Refusing to bargain collectively with Textile Workers Federal Local Union 21723, affiliated with 'American Federation of Labor, as the exclusive representative of its production and maintenance employees, including the mill carpenter and the office porter, but excluding clerical and supervisory employees, overseers, second hands, and persons employed in its stores; (c) 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, or to engage in concerted ac- tivities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Rela- tions Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to W. A. Taylor, C. A. Holliman, and Hill Logan im- mediate and full reinstatement to their former or substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges; (b) Make whole W. A. Taylor, C. A. Holliman, and Hill Logan for any loss of pay suffered by reason of its discrimination against them, by payment to each of them of a sum of money equal to the amount which each employee would normally have earned as wages during the period from the date of its discrimination against him to the date of its offer of reinstatement, less his net earnings 99 during said period; (c) Upon request, bargain collectively with Textile Workers Fed- eral Local Union 21723, affiliated with American Federation of Labor, as the exclusive representative of the respondent's production and maintenance employees, including the mill carpenter and the office porter, but excluding clerical and supervisory employees, overseers, second hands, and persons employed in its stores, with respect to rates of pay, wages, hours of. employment, and other conditions of employment, and if an understanding is reached on any such matters, upon request embody said understanding in a signed agreement; (d) Post immediately in conspicuous places in its plant, and main- tain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: .(1) that the re- spondent will not engage in the conduct fro in which it is ordered to cease and desist in paragraphs 1 (a), (b), and (c) of this Order; 10 See footnote 98. 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a),, (b), and (c) of this Order; and (3) that the respondent's employees are free to become or remain members of Textile Workers Federal Local Union 21723, affiliated with American Federation of Labor, and that the respondent will not discriminate against any employee because of membership or activity in that organization ; (e) Notify the Regional Director for the Fifteenth 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 FURTKER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent discriminated in regard to the hire or tenure of employment of Mrs. Della Todd and J. A. Holloman, within the meaning of Section 8 (1) and (3) of the Act. MR. GERARD D. RErILY took no part in the consideration of the above Decision and Order.