Burlington Mills Corp.

In the Matter Of COVINGTON WEAVING COMPANY, A DIVISION OF BUR- LINGTON MILLS CORPORATION and TExTmE WORKERS UNION OF AMERICA, LOCAL UNION No. 330 Case No. 0-1879.Decided August 13, 1941 Jurisdiction : rayon weaving industry. Unfair Labor Practices Interference, Restraint, and Coercion: interfering with Board election by inter- rogating employees prior to scheduled hearing in representation proceeding con- cerning their union affiliation. Remedial Orders : employer ordered to cease and desist questioning employees. Mr. Herbert 0. Eby, for the Board. Mr. D. E. Hudgins, Mr. Norman Boren and Mr. Stephen L. Upson, of Greensboro, N. C., and Mr. R. B. Stephenson, of Covington, Va., for the respondent. Mr. George E. Moorhouse, of Covington, Va., for the Union. Mr. Gilbert V. Rosenberg, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon a second amended charge filed on April 1, 1941,1 by Textile Workers Union of America, Local Union No. 330, herein called the Union, the National Labor Relations Board, herein called the Board, by William M. Aicher, the Regional Director for the Fifth Region (Baltimore, Maryland), issued its complaint, dated April 2, 1941, against Covington Weaving Company, a division of Burlington Mills Corporation, Covington, Virginia, herein called the respondent, alleg- ing that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accom- panied by notices of hearing, were duly served upon the Union and the respondent. 1 The original charge was filed on February 18, 1941, and the first amended charge on February 27, 1941. 34 N L. R. B., No 29. 187 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to the unfair labor practices, the complaint alleged in substance that the respondent, by its officers and agents at its Coving- ton, Virginia, plant, on February 12, 1941, interviewed most of its employees during working hours and interrogated them concerning their union affiliations and activities for the purpose 'of intimidating and coercing them and "for the prevention of the proper inquiry by the Board into the question of representation which was to take place on February 13, 1941." It alleged that by this and other acts the re- spondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On April 11, 1941, the respondent filed its answer, admitting that the respondent, by its attorney, interviewed its employees substan- tially in the manner charged in the complaint, but denying that its purpose in so doing was to intimidate or coerce them. The answer also alleged that the interviews were held only for the purpose of obtaining information and evidence incident to the respondent's preparation for a representation hearing to be held on February 13. Pursuant to notice, a hearing was held on April 17, 1941, at Covington, Virginia, before Horace A. Ruckel, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel and the Union by a repre- sentative; all participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the conclusion of the Board's case, and again at the close of the hearing, counsel for respondent moved to dismiss the complaint. The, Trial Examiner reserved decision on these motions, which he denied in his Intermediate Report. For reasons hereinafter appearing, this ruling is hereby affirmed. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On May 15, 1941, the Trial Examiner filed his Intermediate Re- port, copies of which were served upon all the parties, in which he found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and Section 2 (6) and (7) of the Act. He recom- mended that the respondent cease and desist from its unfair labor practices and post notices in its plant. Exceptions to the Inter- mediate Report were thereafter filed by the respondent. Pursuant to notice and at the request of the respondent, a hearing was held before the Board at Washington, D. C., on July 1, 1941, for the purposes of. oral argument. The respondent was represented by counsel and participated in the argument. The Board has con- sidered the exceptions to the Intermediate Report and the arguments COVINGTON WEAVING COMPANY 189 advanced before the Board, and, in so far as the exceptions are inconsistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Covington Weaving Company is a division of Burlington Mills Corporation, a Delaware corporation having its executive office and principal place of business at Greensboro, North Carolina, and is engaged in the business of weaving rayon yarn into cloth at its plant in Covington, Virginia. The respondent annually purchases raw materials, consisting principally of rayon yarn, valued at approxi- mately $300,000, of which morel than 50 per cent is received from points outside the State of Virginia. The respondent annually produces finished products valued at approximately $1,000,000, most of which is shipped to destinations outside the State of Virginia. The respondent concedes that it is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. II. THE ORGANIZATION INVOLVED Textile Workers Union of America, Local Union No. 330, is a labor organization affiliated with the Congress of Industrial Organi- zations, admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES Interference, restraint, and coercion On February 12, 1941, the day before a scheduled hearing was held in a representation proceeding involving the- same parties,2 the re- spondent summoned substantially all its 249 non-supervisory em- ployees, in groups of four or five, to its front office where the respondent's attorney,. D. E. 'Hudgins orally propounded to them questions based on the following questionnaire which had been prepared: 1. What is your name?------------------------------------------ Address?, ---------------------------------------------------- 2. Have you ever become a member of Textile Workers Union of America, Local 330, Covington, Virginia?_____________________ 3.'If so, did you sign a union membership card?____ _______________ On what date ?----------------------------------------------- 2 After a hearing on February, 13, 1941, the Board on May 21, 1941, issued a Decision and Direction of Election in the Matter of Covington Weaving Company and Textile Work- ers of America, Local Union No. no, Covington, Va, 31 N. L. R B. 1145. 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. If you have ever been a member or signed a card, are you now a member?------------------------------------------------ Do you hereby declare that you repudiate your membership or affirm it?-------------------------------------------------- 5. Do you now favor the union as the exclusive collective bargain- ing representative for all of the employees of the Covington Weaving Company?----------------------------------------- At the same time Hudgins told the employees that the purpose of the interrogation was to obtain evidence in connection with the pend- ing representation proceeding, mentioned above; that their answers to the questions would not affect their tenure of employment; that they had a right to belong to whatever labor organization they wished; and that they need not answer his questions if they did not wish to do so. Many of the employees accordingly refused to give their names or to answer any questions.3 Hudgins tabulated the results of his inter- views, and classified the respondent's employees into three groups : (1) those definitely in favor of the Union, (2) those definitely opposed to the Union, and (3) those who were uncertain. He communicated this information to Odell Roberson, the respondent's plant superin- tendent, sometime after February 13, with "instructions" not to use the information "for any purpose other than as a record to indicate ... that the Union did not represent a majority of the employees and he [Roberson] therefore was not required to bargain collectively with it." The respondent's contention that it questioned its employees for the sole purpose of preparing for the representation hearing the following day, is set forth in the testimony of Hudgins : Q. (By Mr. Eby) May I ask you, Mr. Hudgins, whether or not under Section 9 (c) of the Act, with which I take it you are familiar, it is your understanding that a question cannot affect com- merce unless the petitioning union shows it has a majority in the appropriate unit? A. in answer to that and. also in answer to the observations of the Trial Examiner I say that on that point my view is that if respondent should introduce evidence of substantial and probative value that a majority at that time, at the time of the hearing, did not favor the union, and if that evidence was accepted and that contention of the respondent was found to be a fact by the Board as a fact-finding body, that no question would. then exist and therefore no, election or certification would be proper. 8 Edna Long, a union member, testified that she told Hudgins that she would not answer any questions because she was afraid she might be discharged. COVINGTON WEAVING COMPANY 191 TRIAL EXAMINER Ruc$EL : . . . But the elections which follow are secret elections in which the employees have a right to cast their ballot to determine whether or not they want a particular union to represent them. A. My view is that the election would not follow if the Board found as a fact the majority then did not wish to be represented by the union; and it is not a complete and plenary hearing unless that point-is open for evidence as well as all other points, as, for example, the jurisdictional facts and the appropriate unit. The respondent's contention does not justify its activities.4 While the respondent is entitled to use all reasonable means to obtain mate- rial and relevant evidence to meet the issue raised in a representation proceeding,' it may not under any circumstances engage in activity prohibited by the Act. The respondent by interrogating its em- ployees, as described above, obtained information concerning their union membership and general attitude toward union organization, thereby invading a field of union activity reserved by the Act to the employees. In effect the respondent conducted an open election under its own auspices which necessarily destroyed to a large extent the secrecy of the election subsequently ordered by the Board in the then pending representation proceeding' and thus intimidated the em- ployees in the exercise of their choice of bargaining representatives. Clearly the respondent's conduct was in violation of the Act.7 As the Board said in the Mallon case,5 where the employer questioned his employees as to their union membership under circumstances similar to those existing here : The Act requires that the Board settle questions concerning representation, and provides that it may conduct an election by * The Board takes occasion to point out that a petition for investigation and certification of representatives filed pursuant to Section 9 of the Act is a non-adversary proceeding, and that the employer, as a, party thereto, is under no duty at a representation hearing to adduce evidence concerning a labor organization 's claim of representation and may not with impunity ferret out such evidence for that purpose. To effectuate the policies of the Act, inquiry into such matters has been exclusively delegated by the Congress to the Board, which has and uses adequate administrative machinery for the ascertainment and determi- nation of bargaining representatives. 5 Cf Matter of F. W. Woolworth Company and F. W. Woolworth Company of France and United Wholesale & Warehouse Employees of New Yorlc, Local 65, United Retail & Wholesale Employees of America, 25 N. L. R. B. 1362, enf'd as mod , F. W. Woolwoi'th Company! v. National Labor Relations Board (C. C. A. 2), decided July 2, 1941. 6 Pursuant to Direction of Election issued In the representation proceeding , mentioned above, an election by secret ballot among the employees of the Company was conducted by the Board on June 10, 1941, 33 N. L. R. B. 428 7 See Matter of Norman H. Stone, Marvin N. Stone and Jerome H. Stone, Jr., doing busi- ness as J. H. Stone & Sons and International Printing Pressmen and Assistants' Union, Box and Carton Local #415, 33 N. L. R. B. 1014; Matter of New Era Die Company and International Association of Machinists Lodge 243 (A. F. of L.), 19 N. L. R. B. 227, enf'd as mod., National Labor Relations Board v. New Era Die Co., 118 F. (2d) 500. . 8 Matter of If. C. Mahon Company and Steel Workers Organizing Committee, 28 N. L- R. B 619. 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD secret ballot to this end. The purposes of such provisions, among others, are to prevent an employer from having to deter- mine such problems, especially by questioning his employees, and to allow individual employees to express their desires concerning representation without disclosing them to their employer. Ma- bon's action thwarted the purposes of the Act. He knew that a petition had been filed with the Board and that the question he sought to resolve would be determined by the Board in ac- cordance with the purposes and provisions of the Act. [Italics added.] We find that the respondent, by questioning its employees on February 12, 1941, as to their union membership, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent de- scribed in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States ands 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 the respondent to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Textile Workers Union of America, Local Union No. 330, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. . 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. COVINGTON WEAVING COMPANY 193 ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National ,Labor Relations Board hereby orders that the re- spondent, Covington Weaving Company, a division of Burlington Mills Corporation, Covington, Virginia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from questioning its employees as to their membership or non-membership in Textile Workers Union of Amer- ica, Local Union No. 330, or any other labor organization among its employees, or in any other manner interfering with, restraining, and coercoing its employees in the exercise of their right to self-organi- zation, to form, join, or assist labor organizations, to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post immediately, in conspicuous places, at its Covington, Virginia, plant, and maintain for a period of, at least sixty (60) consecutive days from the date of posting, notices to its employees stating that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraph 1 of this Order; (b) Notify the Regional Director for the Fifth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith.