Avondale Mills

National Labor Relations Board - Board Decisions

Mar 20, 1956

115 N.L.R.B. 840 (N.L.R.B. 1956)

840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For the foregoing reasons, we find that the General Electric X-Ray
rule should not be applied to this case, and therefore that the contract
is a bar. Accordingly, we shall dismiss the petition.
[The Board dismissed the petition.]
Avondale Mills and Textile Workers Union of America , AFL-
CIO.' Cases Nos. 10-CA-f200 and 10-CA-;2274. March 20,1956
DECISION AND ORDER
On October 28, 1955, Trial Examiner John C. Fischer issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair =labor
practices and recommended that the complaint be dismissed with re-
spect to such allegations. Thereafter, the General Counsel filed
exceptions to the Intermediate Report and a supporting brief. The
Respondent filed a brief in support of the Intermediate Report.
The Board has reviewed the rulings of the Trial Examiner ,made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts his findings, conclusions, and 'recom-
mendations only to the extent consistent with our Decision and `Order
herein.
1. The Trial Examiner found that the Respondent violated Sec-
tion 8 (a) (1) of the Act by interrogating employees concerning their
union membership, views, and activities; threatening them with loss
of benefits, loss of employment, and a plant shutdown, if the Union
organized its mills; and soliciting employees to withdraw from the.
Union. No exceptions to these findings have been filed and we adopt
these findings.
2. The Trial Examiner also found that the General Counsel f ailed
to prove that the Respondent, in violation of Section 8 (a) (1) of
the Act, promulgated and enforced a no-union-solicitation rule for
discriminatory reasons . He therefore concluded that the discharge
of employees Jones, Rich, and Parker for violating this-rule was pro-
tected. We do not agree with these findings.
1 As the AFL and CIO merged after the hearing in this case, we are taking notice of the
merger and amending the designation of the Charging Party accordingly.
115 NLRB No. 130.
AVONDALE MILLS 841
As indicated in the Intermediate Report, the so-called rule in ques-
tion was actually a warning that the Respondent read to a number of
individual employees who the Trial Examiner found were suspected
of soliciting union membership in the mills during working hours.
The warning stated that: "It has come to our attention that you are
attempting to solicit union membership in this plant during working
hours, while the employees that you are attempting to solicit are at
work. This is a violation of plant rules and any further instances of
this sort will result in prompt dismissal." Although the Respondent
contends that the warning reiterated a long-standing rule,l every em-
ployee witness who testified on the subject, with one possible excep-
tion, denied knowledge of such a rule. The only exception was an
employee (McCain) called by the Respondent as a witness who testi-
fied generally that he heard it was against company rules to solicit
on the job.' But whether these warnings served to revive an unwrit-
ten, dormant plant rule or amoiintecl to a promulgation of a new rule
is not particularly important for, in either event, we find persuasive
evidence in the record that the Respondent promulgated or invoked
the rule for the purpose of interfering with and coercing- employees
in the exercise of their legitimate self-organizational rights.
It is settled law that a rule prohibiting union solicitation during
working hours is valid provided it is not promulgated or utilized
in order to prevent or impede the organization of its employees.'
In the present case, such a discriminatory purpose is revealed in the
Trial Examiner's factual findings and the evidence in the record.
Thus, instead of generally publicizing its newly adopted or revived
rule to employees, as one would expect of an employer solely con-
cerned with plant production and efficiency, the Respondent at the
very inception of the Union's membership drive singled out a number
of employees ostensibly suspected of engaging in union solicitation
during working hours to be warned against a repetition of the re-
ported offense. Apparently, antiunion solicitation was not made an
offense. It is significant that most of the employees given the warning
denied engaging in the alleged prohibited conduct and no testimony
contradicting these denials was offered.
Further reflecting on the Respondent's iuotives is the fact that at
the time the individual employees were warned against union solicita-
2Although reveal supeivisors simply indicated in then testimony that the waining
reflected company policy, only one of them, Fomeninn Gunter, testified that lie knew of the
rule since lie began working for the Respondent ahout 14 years ago However, Gunton also
testified that he had never seen "a witten rule. but it is an nnfenied rule"
,'When asked on cross-examination. "You understood that the mill was against the
Union 9" this witness also replied , "Absolutely '
4 Peyton Pack ing Compan:l, Inc, 49 NLRL' 828. 843, entd 142 F. 2d 1009, 1010
(C A 5) ; Standard-Coosa-Thatcher Companaj, 85 NLRB 1358, 1364-5; Cullman Slechic
Cooperatw -wc, 99 NLRB 753, 754, Delta Punishing Company ( Dt ismmn of J P . Steve ns cE
Co...Fnd ); 111 NLRB 659, 661-662; See also Republic Aaiation Corp v N L P 13, 324
U S 793, 803 -805, citing with approval the pi inciple of the Peyton case
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, one employee, Fitzsimmons, was also warned by Superintendent
Pasley that the plant would shut down if the Union succeeded in
organizing it; another employee, Epperson, was advised by Pasley
about other plants closing down ; and a third employee, Rich, one of
the dischargees, was requested by Foreman Gunter not to distribute
cards outside the plant. In addition, a few days after Foreman
Phurrough read the no-solicitation warning to Jones, another dis-
charges, Phurrough sent Cleghorn, a personnel clerk, to persuade Jones
to quit his union activities 5 and, as will be shown below, thereafter
laid off Jones allegedly for ignoring the warning.under circumstances
indicating discriminatory motivation.
That the Respondent was prompted to invoke the no- solicitation
rule by a desire to prevent unionization of its employees rather than
by consideration of plant production and efficiency, as the Respondent
urges , is also indicated by the fact that talking on a variety of subjects
was permitted in the plant.' This included union discussions in which
both employees and supervisors participated.' Indeed, supervisors
utilized these and other occasions during working hours to make
threats of reprisals and to interrogate employees concerning their
union membership and sympathies, which conduct the Trial Examiner
-found violated Section 8 (a) (1) of the Act.' Finally, there is no
concrete evidence in the record showing the extent, if any, that pro-
duction was impaired by union solicitation. -
Viewing the foregoing evidence in the light of the Respondent's
other unfair labor practices, we are convinced that the Respondent in-
voked its so-called no-solicitation rule as a device to defeat its em-
ployees' self-organizational efforts. Accordingly, we find, contrary
to the Trial Examiner, that the Respondent thereby violated Section
G The Trial Examiner is in error in concluding that the purpose of Cleghorn's mission
was "to get Jones , although an ardent union exponent , to desist from his union activity
within the plant and thus save his job" [Emphasis added.] Neither the testimony of
Jones , a credited witness, nor of Cleghorn , which substantially corroborates Jones' testi-
mony. indicates that Cleghorn asked Jones to stop his union activity in the plant, much
less, dui sag working hours Moreover, although not mentioned in the Intermediate Report,
Jones quoted Cleghorn as telling him that mills in a number of cities had shut down
because of the Union . that people were going hungry and barefooted , that "If this mill
goes union, we certainly will shut it down as we will not operate under a union contract" ,
that lie could do whatever lie pleased but Phurrough liked Jones' wife and "he wants you
to stop working for the union "
Cleghorn, a witness for the Respondent, testified that the foreman had told him to "try
to keep [Jones] out of this union, try to get hum straightened out there on the union, how-
ever Avondale Mills felt about it"; that he spoke to Jones and asked him how he liked
the Union and when Jones replied that lie did, asked hiin whether he knew how Avondale
Mills felt about it; and that lie told Jones about other mills shutting down
6The Respondent has no scheduled lunch or lest periods and employees customarily
talk, have lunch, and go to the restrooms when their work permits
7 Oddly enough, the line between union solicitation which the Respondent prohibited and
union discussion which prevailed in the plant was not otherwise clarified by the
Respondent
8 The Board's decision in Nutone, Incorporated, 112 NLRB 1153, does not preclude
ieliance on the antiunion conduct of the Respondent 's supervisors as evidence of discriui-
inatory motivation underlying the adoption of ievival of the no-union-solicitation rule.
AVONDALE MILLS 843
8 (a) (1) of the Act.' As Jones, Rich, and Parker were laid off and
ultimately discharged for violating this rule, we find that the Re-
spondent discriminated against them within the meaning of Section
8 (a) (3) and (1) of the Act.
Even assuming the existence of a valid rule, we nevertheless find
that at least Jones' discharge was discriminatory. As discussed in the
Intermediate Report, Jones joined the Union and began soliciting
employees during working hours, among other times. Thereupon,
Foreman Phurrough summoned Jones to the office. After informing
'him that he was reported "working for the Union," Phurrough read
the warning against solicitation during working hours. Jones, like
the other employees, was unaware of any rule prohibiting this con-
duct. A few days later Cleghorn, a personnel clerk and relative of
Jones, advised Jones at his job that Foreman Phurrough had requested
him to speak to Jones about the latter's union activity and to tell him
that Phurrough wanted him to stop working for the Union. During
the same shift, employee Nicholson came to Jones' job and asked him
for a union card to sign. Jones told Nicholson that he had been
warned about giving out cards on the job but that he would get him
one and give it to him outside the plant gate the following morning.
As it happened, employee Dupree got a card out of Jones' car and
gave it to Nicholson outside the mill.10 Thereafter, Nicholson gave the
card to Foreman Phurrough who testified at the hearing that Nichol-
son told him that he had gotten the card from Dupree outside the
mill.il Phurrough then called Jones into the office and laid him off
for soliciting in disregard of his earlier warning. Jones denied solicit-
ing on the job and asked Phurrough whom could he see to prove that
he did not solicit on the job since he was warned. Phurrough replied
that he did not know. Later at his machine, Jones asked Phurrough a
similar question and Phurrough replied that he did not know but
added that he could see the union organizer.
After his layoff, Jones saw Superintendent Callaway for his ac-
crued pay. Callaway asked him what did the Union promise him,
whether it had shown him a contract of any kind, whether he had
heard about mills shutting down and people going hungry and bare-
9 Delta Fuushvig Company (Division of J P Stevens it Co, Inc ), 111 NLRB 659. 661-
662,Cullman Electiic Cooperative , 99 NLRB 753 , 754, Standard- Coosa-Thatcher Company,
85 NLRB 1358, 1364-5. Nutone, Incwporated, 112 NLRB 1153; Deena Products Com-
pany, 93 NLRB 549, and other cases relied upon by the Respondent are not applicable
Nothing in those cases precludes finding that a plant rule which is discriminatorily adopted
or invoked violates the Act
11 There is testimony in the record by Dupree, a credited witness, which is not alluded
to in the Intermediate Report, that Nicholson also asked him for a card in the mill
11 Phurrough also testified that Nicholson told him that Jones and Dupree were "worry-
ing" him on the job and that "he was disgusted with the thing and he was going to give
it [the card] to me and get rid of it " Phurrough also testified that Nicholson (lid not
give him any other details nor did he ask for any.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
footed.12 Thereafter, Jones appealed his layoff, in the course of which
he was interviewed by ranking officials. General Superintendent
Turner asked him what made him work for the Union, and told him
about people in another city who got "involved in the same type, of
business and the families were separated from each other" and that
"he just couldn't see what would make a boy come from a good family
like [he] did want to work for such a mess as the Union." Similar
statements were attributed to the Respondent's President Smith.
We are convinced-by the foregoing evidence, more particularly, the
Respondent's efforts to persuade Jones to cease his union activities, the
summary nature of his layoff and discharge without giving him an
opportunity to prove that he did not violate the rule, the fact that he
did not engage in the prohibited solicitation,13 the statements made to
Jones by ranking company officials, the Respondent's hostility to the
Union as well- as its other unfair labor practices, that it was Jones'
adherence to the Union rather than his asserted disregard of a prior
warning that motivated the Respondent in laying off and then dis-
charging Jones. Accordingly, we find, contrary to the Trial Examiner,
that, apart from the question of the validity of the no-solicitation rule,
the Respondent discriminated against Jones in violation of Section 8
(a) (3) and (1) of the Act.
THE REMEDY
Having found that the Respondent has engaged in and is engaging
in unfair labor practices in violation of Section 8 (a) (1) and (3) of
the Act, we shall order it to cease and desist from its unlawful conduct
and take affirmative action necessary to effectuate the policies of the
Act.
We have found that the Respondent discriminatorily discharged
James M. Jones, John Rich, and Calvin W. Parker. Accordingly, we
shall order the Respondent to offer these employees full and immediate
reinstatement to their former or substantially equivalent positions,14
without prejudice to their seniority or other rights and privileges, and
to make them whole for any loss of pay they may have suffered by
reason of their discharge by payment to each of them a sum of money
equivalent to the amount each normally would have earned as wages
from the date of his respective layoff to the date of the Intermediate
Report and front the date of this Decision and Order to the date of the
2Although not mentioned in the Intermediate Report, Jones, a credited witness, gave
the rest of the conversation to the effect that, after arguing with Callaway that the em-
ployees were overloaded with woik, although he himself was satisfied with the job, Calla-
way replied, "well, why don't you let other people do what they want to do and you do
what you want to do, don't go around trying to get them to sign the union cards."
19 The Tnal Examiner's conclusion that Jones "violated the spirit and the letter of the
rule by soliciting after being warned" is contrary to the Trial Examiner' s other findings
and the evidence in the record
?*Chase--National Bank of the City of Ne-u Yoib, San Juan, Puerto Rico, Branch,
65 i LR1# 827,' $29
AVONDALE MILLS 84-5
offer of reinstatement , less his net earnings 15 during these periods.
Loss of pay shall be computed in accordance with the formula pre-
scribed in F. W. Woolworth Company, 90 NLRB 289, 291-294.
We shall further order the Respondent to cease and desist from in
any other manner infringing upon its employees ' rights guaranteed
in Section 7 of the Act. We find that such an order is necessary to
satisfy the remedial objectives of the Act because the Respondent's
unf ,ir'labor practices -reveal an attitude of opposition to the purposes
of the Act.1°
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Avondale Mills,
Sylacauga, Alabama, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Textile Workers Union of Amer-
ica, AFL-CIO, or in any other labor organization of its employees,
by discharging its employees or in any other manner discriminating
against them in regard to their hire or tenure of employment or, any
term or condition of employment, except to the extent permitted by
Section 8 (a) (3) of the Act.
(b) Interrogating its employees concerning their union member-
ship, views, or activities in a manner constituting interference, re-
straint, or coercion in violation of Section 8 (a) (1) of the Act; threat-
ening employees with loss of employment, loss of benefits, or a plant
shutdown, if Textile Workers Union of America, AFL-CIO, organ-
ized its plant; soliciting employees to withdraw, their membership
from the said-Union; and discriminatorily promulgating, reviving, or
enforcing a plant rule against union solicitation during working time
for the purpose of impeding the self-organizational efforts of its
employees.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist Textile Workers Union of
America, AFL-CIO, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act : '
fa
36 Crossett Lippn ber Coi4anr, 8 NLRB 440.
w N. L. R . B. v. Entwistle Mfg. Co., 120 F : 2d 532 , 536 (C. A. 4).
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Offer James M. Jones, John Rich, and Calvin W. Parker full
and immediate reinstatement to their former or substantially equiva-.
lent positions, without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of pay they may have
suffered as a result of the discrimination, in the manner set forth in,
the section of this Decision and Order entitled "The Remedy."
(b) Preserve and make available to the Board or its agents upon,
request, for, examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of back pay
due and the rights of employment under the terms of this Order.
(c) Post at its plants and offices at Sylacauga, Alabama, copies of-
the notice attached hereto marked "Appendix." 17 Copies of said no-
tice, to be furnished by the'Regional Director for the Tenth Region,-
shall, after being duly signed by the Respondent's representative, be
posted by it immediately upon receipt thereof, and maintained by it
for sixty (60) consecutive days thereafter in conspicuous places, in-
cluding ,all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that such
notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Tenth Region in writing,
within ten (10) days from the date of this Order, as to what steps it
has taken to comply herewith.
MEMBER RODGERS took no part in the consideration of the above De-
cision and Order.
14 In the event this 01 del is enfoicod by a decree of the United States Court of Appeals,
there shall be substituted for the voids "1'uisuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Older '
APPENDIX
NOTICE To ALL E^iIi'i .oy iti:s
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, notice is hereby given that:
IVr WILL NOT discourage membership in Textile Workers Union
of America, AFL-CIO, or in any other labor organization of
our employees, by discharging any employees or in any other
manner discriminating against then in regard to their hire or
tenure of employment or any term or condition of employment,
except to the extent permitted by Section 8 (a) (3) of the Act.
WE WILL NOT interrogate our employees concerning their union
membership, views, or activities in a manner constituting inter-
ference, restraint, or coercion in violation of Section 8 (a) (1) of
the Act; threaten our employees with loss of employment, loss.
AVONDALE MILLS 847
of benefits, or with a plant shutdown, if Textile Workers Union of
America, AFL-CIO, organized our plant; solicit employees to
withdraw their membership from the said Union; and discrimina-
torily promulgate, revive, or enforce a plant rule against solicita-
tion during working time for the purpose of impeding the self-
organizational efforts of our employees.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist the above-named
labor organization, or any other labor organization, to bargain
collectively through representatives of their own choosing, or to
engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any
or all of such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor or-
ganization as a condition of employment, as authorized in Section
8 (a) (3) of the Act.
WE WILL offer James M. Jones, John Rich, and Calvin W.
Parker full and immediate reinstatement to their former or sub-
stantially equivalent positions, without prejudice to any seniority
or other rights and privileges previously enjoyed, and make them
whole for any loss of pay suffered as a result of the discrimination
against them, in the manner set forth in "The Remedy" section
of the Board 's Decision.
All our employees are free to become, remain, or to refrain from
becoming or remaining, members of Textile Workers Union of Amer-
ica, AFL-CIO, or any other labor organization, except to the extent
that this right may be affected by an agreement authorized by Section
8 (a) (3) of the Act.
AVONDALE MILLS,
Employer.
Dated--------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
These proceedings , brought under Section 10 (b) of the National Labor Relations
Act, as amended ( 61 Stat. 136 ), herein called the Act, and consolidated by order of
the General Counsel of the National Labor Relations Board , i were heard in Sylacauga,
Alabama, on June 8 and 9, 1955, pursuant to due notice. Upon charges filed by the
Union the General Counsel issued complaints alleging that the Respondent had en-
'The General Counsel and his representative at the hearing are referred to herein as
the General Counsel and the National Labor Relations Board as the Board Avondale
Mills is refcu od to hel«,m as Company of Avondale and Textile Workeis'Union of America,
CIO, as the Union
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaged in unfair labor practices within the meaning of Section 8 ( a) (1) and (3) and
Section 2 (6) and (7) of the Act. More specifically, the complaints alleged that the
Company violated Section 8 (a) (1) and (3) by discharging four employees, and
additionally violated Section 8 (a) (1) by interrogating employees concerning their
union membership and activities, and announced and invoked a rule which pro-
hibited solicitation on behalf of the Union during working hours on the Respondent's
property for the purpose of discouraging its employees from becoming or remaining
members of or engaging in activity on behalf of the Union. The Respondent in its
duly filed answers denied generally the commission of unfair labor practices, and
affirmatively pleaded that Respondent has had in effect in its plant for many.years a
rule which prohibits solicitation of union membership by employees who are at-work,
or of employees who are at work during working hours, and that the persons suspended
and subsequently discharged were so discharged for violation of company rules.
At the hearing, before the duly designated Trial Examiner, General Counsel and
Respondent were represented at the hearing by counsel. Full opportunity was afforded
all parties to examine and cross -examine witnesses , to represent oral argument at the
close of the hearing, and thereafter to file briefs as well as proposed findings of fact
and conclusions of law. At the conclusion of the hearing, decision was reserved on
Respondent's motion to dismiss the allegations of the complaint for insufficiency of
proof. That motion is now disposed of in accordance with the findings of fact and
conclusions of law made below. Motion to amend the formal pleadings so as to con-
form to the proof as to spelling of names and dates where not of substance was granted.
Other motions upon which rulings were reserved are disposed of hereafter.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is, and has been at all times material herein, a corporation duly
organized under and existing by virtue of the laws of the State of Alabama, maintain-
ing its principal office and place of business at Sylacauga, Alabama, with offices, places
of business, and manufacturing plants at Pell City, Sylacauga, Birmingham, Sycamore,
Alexander City, Stevenson, and Lafayette, Alabama, where it is now and has been
continuously engaged in the manufacture, sale, and distribution of cotton and rayon
cloth, yarn, and related products. The plants of the Respondent involved in this pro-
ceeding are located at Sylacauga, Alabama. The Respondent, in course and conduct
of its business operations, during the past 12 months, which period is representative
of all times material herein, sold and shipped from its Sylacauga, Alabama, plants to
customers located outside the State of Alabama, finished products valued at more
than $1,000,000.
II. THE LABOR ORGANIZATION INVOLVED
Textile Workers Union of America, affiliated with the Congress of Industrial
Organizations , is a labor organization within the meaning of Section 2 (5) of the
National Labor Relations Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Allegations of complaint detailed
In further explication of the consolidated complaints, the complaint in Case No.
10-CA-2200 which was issued April 26, 1955, by John C. Getreu, Regional Director
of the Tenth Region' at Atlanta, Georgia, charged that the Company, during the month
of November 1954, announced to some of its employees at the Sylacauga plant a rule
which prohibited solicitation on behalf of the Union during working hours on Re-
spondent's property and applied said rule in order to prohibit solicitation on behalf
of the Union during rest or other nonwork periods and in nonworking areas, and that
the Respondent, by and through its officers, agents, and supervisors reprimanded em-
ployees for alleged violation of the rule. Supervisors charged with unfair labor prac-
tices and dates are as follows: F. M. Pickren, November 16 and 17; French Gunter,
November 12 and 18; James Phurrough, November 11, 16, and 19; and J. H. Pasley,
November 15 and 16. The complaint also alleged that the Company announced the
rule and reprimanded employees for the purpose of discouraging its employees from
becoming or remaining members of or engaging in activity on behalf of the Union;
and suspended and subsequently discharged for alleged violations of the rule - the fol-
lowing employees: Calvin W. Parker, November 17; John T. Rich, Novembers 17;
James M. Jones, November 19. The complaint alleged that the Company suspended
and discharged the aforesaid Parker, Rich, and Jones because of their membership in
AVONDALE MILLS 849
and activity on behalf of the Union, and in order to discourage its employees from
becoming or remaining members of or from engaging in activities on behalf of the
Union. The complaint further alleged that the Company, by and through its officers,
agents, and supervisors , whose names are set forth below, on or about the dates shown
opposite their respective names, interrogated its employees concerning their union
membership, sympathies, and activities: George P. Callaway, November 18 and 19,
1954; Nathan Forbus, November 11, 15, 16, and 22, 1954; Vernon Brooks, November
16, 19, and 22, and December 1; Homer Cabiness, November 15 and 19 and December
2 and 10. The complaint further alleged that the Company, by and through its offi-
cers, agents, and supervisors whose names are shown below, and on or about the date
or dates shown opposite their respective names, threatened its employees with loss of
various employee benefits if a majority of its employees authorized the Union to repre-
sent them: Vernon Brooks, November 16, 22, 29, and 30; J. H. Pasley, November 15;
Nathan Forbus, November 22. The complaint further alleged that the Company,
by and through its officers, agents, and supervisors whose names are shown below, and
on or about the date or dates shown opposite their respective names, threatened its
employees with loss of employment, that the Company would close its Sylacauga,
Alabama, mill, and threatened other economic reprisals, if a majority of its employees
authorized the Union to represent them: F. M. Pickren, November 17; Huel Cleghorn,
November 17; George P. Callaway, November 18 and 19; Nathan Forbus, November
10, 12, 16, and 22, and May 1, 1955; J. H. Pasley, November 12 and 15; Vernon
Brooks, November 19, 22, 26, and 27; Homer Cabiness, November 15 and 19 and
December 10. This complaint finally charged that the Company, by and through its
supervisor, Homer Cabiness, on or about December 2 and 10, solicited its employees
to withdraw or revoke collective-bargaining authorizations previously granted by the
Union, and by the acts and conduct above described has engaged in and is engaging
in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1)
and (3) and Section 2 (6) and (7) of the Act.
In the complaint in Case No. 10-CA-2274 dated May 3, 1955, the Company is
charged, by and through Supervisor Vernon Brooks, on November 15 and 24 of hav-
ing interrogated its employees concerning their union membership and sympathies;
and the Company by and through its officers, agents, and supervisors, whose names
are shown below, on or about the date or dates shown opposite their respective names,
threatened its employees with loss of various employee benefits if a majority of its
employees authorized the Union to represent them- J. H. Pasley, November 15;
Overseer Ira Veasley, November 15 and January 31, 1955; Vernon Brooks, No-
vember 15 and 24; and finally by and through Superintendent J. H. Pasley, on or
about November 15, made threats to its employees that they would lose their em-
ployment, that the Company would close its Sylacauga mills, and that employees
could suffer other economic reprisals if a majority of its employees authorized the
Union to represent them; and that the Company, by its action and conduct described
above, has engaged in and is engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (a) (1) of the Act. There was also an allegation
that the Company, on or about February 7, 1955, suspended and subsequently dis-
charged its employee, Vernon L. Stevens, in violation of Section 8 (a) (1) and (3)
of the Act. However, this allegation was stricken on motion by the General Counsel
from the complaint. As previously noted, the Respondent Company denied the
allegations of unfair labor practices, and affirmatively pleaded that the discharges
were for cause-i. e., violation of the Company's no-solicitation rule.
B. Background
As germane to the facts to be developed in this case and for purposes of necessary
orientation , immediately after offer and reception in evidence of the formal docu-
ments, by agreement of General Counsel Hamilton and Respondent Counsel Con-
stangy, two official exhibits entitled: "An Introduction to Avondale" and "Procedure
for Handling Employee Problems or Complaints" were admitted. The "Introduc-
tion" is a brochure which describes Avondale history, wages, cash and deferred
profit-sharing program , vacations , insurance , promotions, employee problems and
complaints, bulletin board, recreation, educational program, community activities,
and other topics. The "Procedure" brochure is a manual setting up an authorized
procedure for handling of problems or misunderstandings which may arise between
employees and management, and it details five steps an employee may take in
bringing a problem or complaint from- his assistant foreman up to and including
the president of the Company.
Avondale Mills began business in the year 1897, when the late Governor B. B.
Comer and a group of associates formed a company in Birmingham and built the
390609-56-vol. 115-55 -
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mill which is now known as "Avondale ." In 1906 , the' organization purchased the
Central mill in Sylacauga and in 1913 built the Eva Jane mill. Subsequently, the
Sally B No . 1, Sally B No. 2 , and Catherine mills were built in Sylacauga . Mills in
Alexander City , Birmingham , Lafayette , Pell City, Stevenson , and Sycamore, Ala-
bama, are parts of this long-established and integrated chain of textile mills in Ala-
bama communities . From the beginning in 1897, when the Company had 1 mill and
employed 400 persons and consumed 100 bales of cotton per week , the Company has
grown to an organization of 9 mills operating 266,000 spindles and 4,700 looms, which
consumes 3,500 bales of cotton per week . There are at present about 6 ,000 employees.
The brochure states that the Company 's endeavor to keep pace with the Nation's
steadily advancing standard of living has found expression in a constantly broader
appreciation of recreational , social , health , cultural , and security programs-all of
which have been developed in cooperation with employee groups . In this connec-
tion , it states that until 1949 many Avondale people lived in approximately 1,200
houses owned by the Company and as a major step in Avondale 's program of en-
couraging home ownership , most of these houses were sold to the occupants in late
1949 . Avondale offered to finance 90 percent of each purchase over a 12-year period
with interest at 4 percent . Many other employees also have acquired homes or small
farms with financial assistance of Avondale credit unions , the Sylacauga Federal
Saving and Loan Association , and other local institutions . Today about 85 percent
of Avondale employees are homeowners or members of homeowning families.
The brochure recites that Avondale considers the relationship with its employees
to be a partnership in which benefits and adversities are shared as all strive together
to make the organization a better and more successful one. As is true in all partner-
ships, each individual should make his maximum contribution to the program.
Avondale states that its wage policy is to pay wages equal to the going wage in
the textile industry in its locality, stating that this is a basic part of its profit-shar-
ing program . The profit-sharing program of Avondale has been in continuous effect
since 1942 and is characterized as a cash and deferred profit -sharing program. All
employees of the Company are eligible to participate in the profit -sharing program
after they have completed 1 full business year in continuous service of the Com=
pany. It states that the profit -sharing program will divide any profits of the Company
half and half between the Company and its eligible employees , after reserving 5
percent after income taxes on the stockholder's investment ( net worth of the Com-
pany ). The formula applied is that the amount to be shared will be divided accord-
ing to units , with each individual having 1 unit for each year of service and 1 unit
for each $100 of earnings during the year . Half of any profits to be shared will
be paid to the eligible employees in cash as soon as practicable after the end of the
business year, and an equal amount will be paid into the retirement trust.
There is a vacation -pay program on the basis of a "Vacation Year ," depending on
the employee 's years of continuous service with the Company figured on a percent-
age of earnings during the vacation year to be paid as vacation pay ranging from 2
percent to 6 percent . Insurance is provided for employees who participated in
group -insurance program providing life insurance , hospital , and surgical benefits.
Avondale states that it endeavors to promote or lay off employees in accordance with
their length of service , providing that other conditions such as ability, production, and
quality of work performed are equal but mere length of service does not justify pro-
motion nor protect from layoffs. It is specifically provided that no separation, in-
voluntary on part of the employee , will be made permanent by the Company until
the employee has had full opportunity to submit his problem or complaint. An ex-
tensive recreation program is outlined as a major part of Avondale's employee
program.
In its educational program, Avondale provides opportunities for self-help called
"Partnership with People ." Avondale kindergartens are attended by about 500
children of employees , and to further self-improvement , high school and college level
courses are offered to employees to prepare them for more responsible positions
with the Company . In cooperation with recognized colleges , Avondale endeavors to
make work available to deserving high school graduates whereby they can secure a
college education under the "Co-op Plan" by working and attending school alter-
nately. It is possible under this plan for these students to cam enough themselves
to pay their way through college and receive their degrees in 51/2 years . This pro-
gram is not limited to students taking any particular courses of study. Avondale
also has set up an educational and charitable foundation which offers scholarship
plans to encourage and assist worthy young men and women who strive to obtain
an education to prepare themselves for positions of leadership and service in textile
industry.
The brochure states that in each Avondale community there is a Federal credit
union with a twofold purpose to enable its members to save systematically , no matter
I
-AVONDALE MILLS 851
what the amount, and to enable its members to borrow money at a reasonable rate
of interest. Further, Avondale has a Cotton-Craft Cooperative Association in order
to provide retired people with additional income.
Finally, the brochure states that Avondale expects from employees regular attend-
ance, compliance with rules, 'maximum of efficiency, alertness, personal interest in
Avondale, and protection of the good name of Avondale. (The procedural program
will be more particularly adverted to.)
The Union, Textile Workers Union of America, CIO, with general offices in New
York City and southern office in Charlotte, North Carolina, started an organizing
campaign in the fall of 1954 at the Sylacauga mills of the Respondent and on or
about November 10 delivered union membership cards to some 60 of Respondent's
employees for distribution and solicitation of signatures. Union Representative
Halstead testified that there has been a continuous organizing campaign conducted by
the Union at the Respondent's plants in Sylacauga and at Respondent's plants at
Pell City and Alexander City, Alabama. After November 10 when the employees
were given these membership cards for distribution and solicitation of signatures
there was extensive solicitation and union activity carried on in the two mills, the
Eva Jane and Catherine Central.
The Company contends that this campaign was interfering with production and
was causing complaints by employees, and consequently it invoked a long-standing
rule against solicitation. The invoking of this rule against union solicitation and the
subsequent discharge of employees alleged to have violated the rule constitutes the
most important feature of this case.
C. The solicitation rule
This rule reads as follows: "It has come to our attention that you are attempting
to solicit union membership in this plant during working hours, while the employees
that you are attempting to solicit are at work. This is a violation of plant rules and
any further instances of this sort will result in prompt dismissal." This rule was
individually read to the dischargees in this case by supervisors, as well as to other
employees who were suspected of soliciting memberships on company time.
The General Counsel contended that this rule was unlawful in that: (1) It was
limited to union solicitation; (2) it was adopted without any regard to business
necessity for the sole and discriminatory purpose of impeding its employees' self-
organizational efforts; (3) it was used as a device to threaten, coerce, and interfere
with employees in their organizational activities; and (4) it was enforced against
employees while supervisors openly campaigned against the Union.
D. Key to this case
The key to this case is to be found on the last page of the brochure or employees'
manual-page 14--entitled "Avondale Expects From You." Listed there are six
fundamental employment requirements: (1) Regular attendance; (2) Compliance
with rules; (3) Maximum efficiency; (4) Alertness; (5) Personal interest in Avon-
dale; and (6) Protection of the good name of Avondale. To utilize two classic
examples of comparison as being applicable-"the greatest of these" is maximum
efficiency-because "High production and quality enable Avondale to complete
successfully with other mills in the industry and are the sources of profits to be
shared." The other-"a man cannot serve two masters"-because "Personal Interest
in Avondale" required absolute loyalty to its time-honored partnership concept or
principle of sharing in the benefits and adversities.
From the evidence, testimonies, conduct of witnesses, appearances, and impressions
gained by the Trial Examiner at, during, and from the hearing, and from the entire
record, maximum efficiency with its attendant high production was the sumniune
bonum. (Cf. Avondale Manual p. 5, "As is true in all partnerships, each individuall
should make his maximum contribution to the program.") In reference to com-
pliance to rules, the manual states: "It is necessary to have plant rules regarding
conduct, safety, and housekeeping." (Apparently the plant rules, being unwritten,
were matters of custom, some possibly dating back nearly 60 years.)
Immediately after becoming aware of the union organizing campaign together
with reports of various employees attempting to solicit union memberships in the
plant during working hours from employees who were working, management in-
voked its so-called "no-solicitation" rule and made suspension and discharge the
penalty for violation, after warning. Other than for the annual Community Red.
Cross Drive, no solicitation of any kind was permitted in Avondale, as is evidenced
by the warning previously given an elderly employee, G. C. Cook, who was circulating
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a petition seeking a pardon for his son who was in the penitentiary . He was ad-
monished by Supervisor Gunter: "Well you'll have to see Mr . Haines before you go
any further with the soliciting on the job. You know the Company won't allow
you soliciting on- the job." Cook denied knowledge of this rule. Cook was again
"called on the carpet" when he was suspected of soliciting membership for the Union,
but he denied union solicitation . The rule that working time is for work, early
enunciated by the Board in Peyton Packing Company, Inc., 49 NLRB 828, certainly
obtained in Avondale. In that case the Board stated : "It is therefore within the
province of an employer to promulgate and enforce a rule prohibiting union solicita-
tion during working hours. Such a rule must be presumed to be valid in absence of
evidence that it was adopted for a discriminatory purpose." Thus the main question
to be resolved is whether the rule was applied for the purpose of discriminating
against the Union or to maintain discipline in the plant.
E. Alleged interference, restraint, and coercion
Fred E. Halstead, a representative of the Textile Workers Union of America, tes-
tified that he had engaged in organizational activity of the Avondale Mills, in Syla-
cauga, Alabama, which organizing campaign began as a survey on October 26, 1954,
and has continued to date. As a result of this survey about 50 employees were con-
tacted, and cards were given out to some 60 individuals, the number of cards given
each individual varying from 10 to 60, during the entire campaign. Cards were first
given out on November 10, 1954, but not all of the cards on that date. Halstead
testified that they also had a campaign on in Pell City at another plant of the Avon-
dale Mills, about 42 miles from Sylacauga, which began prior to October 1954, ap-
proximately September. Also prior to November 1954 they had made surveys at the
Alexander City plant of Avondale Mills, which is about 30 miles from Sylacauga.
The complaints' allegations of interference, restraint, and coercion involve nine of
Respondent's supervisors and a personnel officer, Huel Cleghorn. General Counsel
Hamilton, in his comprehensive and detailed brief to the Trial Examiner, contending
that the "rule" was used as a device to threaten, coerce, and interfere with employees
in their organizational activities, shows that employees Baxley, Connell, Cook, Johns,
Martin, Price, Reeves, Fitzsimmons, Epperson, and others, having been reported as
soliciting , were called into the office and read the rule. Each of them denied having
engaged in solicitation. General Counsel also contends that the Respondent utilized
the reading of the "rule" as a "springboard" to make direct or thinly veiled threats
about what would happen if the Union came in or if employees favored the Union.
In this connection, employee Cook testified that when Foreman Forbus called him
into the office to discuss the report that he had been soliciting for the Union, Forbus
"told me that probably they would shut it down, the Company never had stood for a
union. And he didn't want that to happen for he wasn't ready to have a shutdown."
Asked by Counsel Constangy: Q. "Did he say who would shut it down?" A. "He
said Mr. Comer [Avondale Board Chairman] probably would." The complaint
was amended to allege that this conversation took place approximately May 1, 1955.
Forbus' version, which I accept, is as follows: "I was in the control room which I
have authority to go in the control room. I have some work to do in there at night,
and Mr. Cook was in there. We was talking and so forth and what was going to
happen. I said, `Now, listen, Mr. Cook,' I said, `what I'm interested in is this job
running while I'm here and that is all.' I said, `I got nothing for the union and noth-
ing for the company, only I'm interested in my payday.' I said, `you all are going
to keep flunking around here and messing around here until it will be like that mess
in Talladega was a few years ago.' I said, 'I happen to be there when one was killed
and one broke his neck and black-eyed and bunged up pretty bad, and you all are
going to mess around here and shut it down, and I'm not able to stand it and I wish
you would quit this punching up and talking and stay on your job.' That is all I was
interested in " From my observation of the demeanors of both witnesses, I credit
this explanation; and find no threat violative of the Act.
Crit Connell testified that sometime in November he was working in the "picking
room" of the Eva Jane mill on the third shift when Forbus engaged him in a con-
versation, stating: "We just started the pickers up and he [Forbus] came out and
asked me had I signed the union card and I told him `yes.' He asked me what I
think I would gain about it So by that time the pickers stopped and we had to doff
and we doffed and came back up to the No. 1 picker and James Bates and R. D. Dennis
was there. He asked these fellows if they signed the cards and they told him `yes.'
So he asked them what they thought they would gain and we told him better work-
ing conditions. . He said the mill would probably shut down if it went union
.down there. So about that time the pickers had knocked off again and we went on
AVONDALE MILLS 853
to work and him and R. D. [Dennis ] set up there and talked 15 to 20 minutes and
what they said I wouldn't know."
Interrogated in this connection Forbus' version was: "Well , my job is to see that
each person operates his job and runs it, and I was in the office and I discovered
there was some jobs that needed attention with nobody on it. I begin to find out
where they was at and what it was all about. When I found them they left their
job, two or three left their jobs and all had bunched up in the big alley out of this
room in to another room. I walked up to where they was at and said, `What all does
this mean?' I said, `you all are going to keep on here discussing this thing and the
next thing you know this thing is liable to shut down.' I said, `in fact, you about got
it shut down now.' I said, `There's jobs out there that need attention and so long as
I stay here you are going to run them'; and I said, `Get on your jobs and run them.'
And they did." Forbus denied that he asked Connell if he signed a union card or
what he thought he would gain from union conditions.
I believe and find Forbus' version to be correct except that after delivering his
reprimand, he did engage in a further discussion of the unionizing campaign as re-
lated by Connell and asked them if they had all signed cards and inquired what they
expected to gain. Interrogating employees as to whether they had signed union cards
under circumstances similar to this instance has been held to be violative per se of
the Act by the Board -in cases too numerous to mention and I so find. However, I
do not find the simple question as to what he, or they, thought would be gained from
union conditions-obviously over and above what Avondale already offered-to be
illegal interrogation. Forbus got his curiosity satisfied, whether he agreed or not
in their answer-"better working conditions."
Howard Epperson, a "fixer" in the Catherine spinning mill, testified that sometime
in February, Superintendent James J. Pasley called him into the office and, in the
presence of Supervisors Veasley and Winsley, read him the rule. Epperson stated
that this was his first intimation either of the rule against solicitation and even of his
knowledge of the Union. His cogent testimony in this connection was. "Well, we
just talked, me and him and Mr. Veasley and Mr. Winsley, first one thing then an-
other. Something was said about going up to Uniontown [Alabama], I believe it
was, where that mill shut down and see how they done it up there, and this one would
probably do the same thing." Asked whether he mentioned anything about Union-
town, Pasley answered: "I'm sure I did. I just been down and bought some machin-
ery out of it and the people were all around wanting jobs and everything. . . I
told him the story about two people that came in my office looking for a job from
Uniontown. . . . Two people who worked there for 13 years, built them a home
and they had everything invested in it, and the mill shut down and they went through
the Valley up the line to Tennessee and back and nobody would give them a job.
They said they couldn't sell their home for practically anything." Pasley stated that
if he did not tell Epperson about this story, he certainly told others. I find this to
be an exercise of his right to free speech and protected under Section 8 (c) of the
Act. Valid plant rules against solicitation and other forms of union activity do not
control an employer's actions. Nutone, Incorporated, 112 NLRB 1153.
Carter E. Fitzsimmons testified that in November he had a conversation with
Pasley in the presence of Supervisors Veasley and Winsley at which time he was
read the "rules" and asked if he understood it. In amplification of this conversation,
Fitzsimmons stated: "Well, I told him at one time, rather I was a member of three
different branches of the union. I told him what they were that I had been in.
He said he wasn't talking about that, he was talking about the CIO that was trying
to organize the Avondale Mills." His testimony concerning a discussion as to
whether or not the Union might come in, in my opinion, was indefinite: "Well, I
don't remember just what was said about that . It seems like some little something
or other was said, something like the Company wouldn't stand for the Union to
come in and they could shut down the mill if they come in." His testimony was
but little more definite on cross-examination by Respondent's counsel: "Well, he
said, the best I remember, he said, the Company might not stand for a union to
come in . He said, they could shut down, that he didn't know. That is something
similar to what he said. I don *t remember the exact words." His only recollection
as to the date of this conversation was that it occurred in the fall of last year.
Pasley denied saying anything to the effect that Avondale Mills would not stand
for a union or would close down the mill, stating: "I asked him if there were any
questions , and he told me that he belonged to the railroad union and several other
unions. He asked if there were any other questions and I told him no, and he got
up and left." The testimony of both of these witnesses as to this meeting seemed
quite forthright . My conclusion was that Pasley, in explaining the warning for
violation of the current "rule" as distinguished from Fitzsimmons' prior union
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activity, advised him that the Company might not stand for a union to come in, and
could shut down-that , he did not know. I believe that Pasley did not mean it
as a threat , but I find , however, that this statement could operate as a threat to
Fitzsimmons , and therefore contravenes the Act.
Mrs. Keil Baxley testified that Pasley sent for her and, in the presence of Super-
visors Veasley and Brooks, read her the rule because she had been reported as
soliciting for the Union. She admitted , under cross-examination on the stand, that
she undertook to sign up one woman, Jerald McQuinn . She quoted Pasley: "He
said did I know what that meant, said it would mean all my benefits would be
taken away from me ." On cross-examination , she admitted that the only thing
Pasley did was to read the warning "rule." Pasley denied that he mentioned
benefits. This warning constitutes no violation.
William Louie Reeves testified that he was called in to the office of Supervisor
Veasley on November 15 and there read the "rule" because he had been reported
as soliciting for the Union. Denying any solicitation , he quoted Pasley as saying:
"He told me if I wasn't involved , why, it was OKeh . I told him I wasn't ." There
the matter was dropped . This is found to be no violation of the Act.
Charlie T. Price, a doffer on the third shift, testified that he was read the warning
in Supervisor Phurrough 's office late in November and told that "any further [union]
action to that effect would result in my immediate dismissal . . Anything I did
would be at my own risk ." These examples constitute the basis of General Counsel's
contention that the "rule" was illegally used as a device to threaten , coerce, and
interfere with employees in their organizational activities . All of these employees
received the same treatment viz they were called in and told that it had been reported
that they were soliciting union memberships on company time and were warned
that if true and if the offense were repeated , the penalty would be discharge. The
General Counsel did not affirmatively establish that the "rule ," presumptively valid,
was used as a pretext to threaten , coerce, and interfere with these employees in their
union organizational activities.
Documenting and in connection with General Counsel's contention that the "rule"
was enforced against employees while supervisors openly campaigned against the
Union , Counsel Hamilton , in his brief to the Trial Examiner , prepared an elaborate
chart listing separate instances of alleged illegal and proscribed conduct charged
to Respondent 's supervisors . These instances are considered as paginated in the
official transcript:
Employee John Rich testified that on November 10 Supervisor Forbus came to
his machine and said: "'John , what do you think about the Union?' and I said,
`I think it is a good union.' He said , `It it goes union this plant will shut down and
we won 't have any job.' " Forbus denied making this remark , but it appears that
an altercation occurred between them and in concluding it, Forbus made this state-
ment . I find it to be a threat tending to interfere with , restrain , and coerce an em-
ployee in violation of the Act. Rich also testified concerning a conversation on
November 16 with Supervisor Gunter: "And he asked me `Would I not give out
cards outside the mill?' And I said , `When I get outside the gate I'm on my own
and I won't make any promises .' " There is an unchallenged statement attributed to
Forbus concerning Rich : "No, he [Rich ] won't lie," and I find that Gunter made
the request . I find it to be an illegal interference calculated to restrain Rich in
his lawful union activities.
Rich further testified that on November 16 or the morning of the 17th, Forbus
called him into the office and asked him to sign a "kind of a confession that I had
been active since I have been told not to go for the union on the job." Stating
that he refused to sign , Rich quoted Forbus as saying: "John , you are too old a man
for this.. . You're going to be left out in the cold . . . . You'll be left in a
ditch.... This mill is not going union and you won't have any job." Rich was
a senior employee with 20 years' experience in Avondale and truthful . I credit him
in this instance and find this statement to constitute an illegal threat . which con-
travenes the Act.
James M. Jones testified that on November 19 Supervisor Phurrough called him
into his office and told him that he was laid off for 30 days and gave him his time
in full . Jones had previously denied that he had solicited after being warned by
Phurrough and said : "Well, Mr. Phurrough , who am I going to have to see to prove
that I hadn 't solicited the Union on the job since I was warned ? There ain 't nothing
to that ." Phurrough 's answer was: "You can carry this to Mr . Callaway at 8:00
o'clock - if you want and get your time, get your money." Jones returned to his
machine and just before quitting time as he passed , Jones said he asked Phurrough
again whom he would have to see to prove that he had not solicited and Phurrough
answered : "I don't know, but you can go see Mr. Fred Halstead " ( the union or-
AVONDALE MILLS 855
ganizer). I find that Phurrough made this answer, but find it to be no violation of
the Act. After Jones was laid off, he reported to Halstead, the union representative,
and then returned to the plant and talked with Superintendent Callaway. Jones
quoted Callaway as saying: "Well, Jones, what have these guys promised you?
Have they shown you a contract of any kind?" According to Jones a discussion
ensued in which Callaway told of mills shutting down and Jones argued about Avon-
dale's spinners being overworked. I find that Callaway made the remarks, but
attach little significance to them because he had already concurred in Jones' layoff
on the facts as he then had them. Jones testified that he finally was interviewed
by ranking officials, Haines, Turner, and President Smith, all of whom eventually
affirmed and concurred in his discharge. He attributed to Turner, and it is un-
denied: "he asked me what made me want to work for the Union . and he said
he just couldn't see what would make a boy come from a good family like I did
want to work for such a mess as the Union . . . then he told me that way back
yonder some people in Alex City got involved in the same type of business and
the families was separated from each other . and then he asked me if I was
satisfied on the job. I told him `Yes, sir.' I told him I was well satisfied." Jones
attributed similar statements to President Smith. The Trial Examiner finds that
these interrogations of an employee, made at the time of discharge, interfere with,
restrain, and coerce an employee exercising his right to engage in protected union
activities.
Charlie T. Price, a doffer in the Eva Jane mill, testified that late in November
Supervisor Homer Cabiness started a conversation with him in the toolroom by asking
him if he knew who was soliciting by giving out union cards in the mill. Price quoted
Cabiness: "He said that the Union, if it came to Avondale Mills the mill would
shut down." He further testified that about the first or second week in December:
"Mr. Cabiness asked me about writing a letter requesting my union card back. .
He asked me if I had a chance would I get my union card back." Price further stated
in connection with this suggestion: "I don't remember exactly what he said at that
time. He said he had written letters requesting their cards for people, requesting
their cards back and he would write me one if I wanted him to." Cabiness cate-
gorically denied any of these statements attributed to him, and answered Counsel
Constangy when asked whether he had any conversation of that sort with Price:
"Not of that type." Based on the demeanors of Price and Cabiness, I credited Price.
Accordingly, I find these conversations violative of the Act.
Jimmy Dupree, a doffer, testified that on the night of November 17 or the morning
of the 18th he had a conversation with Cabiness in the little spinning room: "Well,
he asked me did I have a union card. I told him I didn't." He then quoted
Cabiness as advising that if he got one to hand it back and tell the donor to use
it for toilet paper. He also quoted Cabiness as saying: "Avondale Mills would never
recognize the Union. . . They would cut those frames up and sell them for junk
before they would let the Union come in." Although Cabiness denied making these
statements' I credit Dupree and find them calculated to interfere with, coerce, and
restrain employees in the exercise of their protected union rights and activities.
Calvin W. Parker, a "beamer tender" working on the third shift in the Eva Jane
mill and one of the alleged discriminatorily discharged employees , attributed state-
ments to Supervisors Pickrem, Cleghorn, Callaway, and Turner which if accepted
as true constitute instances of illegal interrogation and threats within the purview
of the Act. Parker testified that in an interview with Supervisor Pickren, who was
in the act of suspending him for 30 days: "Well , he [Pickren ] said the Union wasn't
any good . and I was still talking to Mr. Pickren trying to get the things
straightened out where I could go ahead and work and he said the Union wasn't
any good, said it broke up places. in textile, said it just wouldn't work, so I saw I
couldn 't straighten it out with him so I went on out."
Q. During this discussion , was any mention of the Union getting in at all?
A. He said they wouldn't run with the Union down there.
Q. Who wouldn't run?
A. The mill wouldn't run with the Union down there, they wouldn't stand
for it, they'd close it down and he didn't want to lose his job.
Parker quoted Personnel Officer Cleghorn as saying: "Well, he stated that the
Union wouldn't work in textile, stated he wanted to work, didn't want to lose his
job, didn't want the mill to shut down ." In his interview with Superintendent Calla-
way, Parker stated: "I asked him if he could straighten the matter out and he
said he couldn 't. He said the Union wouldn 't do anything but just tear up things.
He didn 't want any part of it himself. . . . He said , he didn 't see why I let myself
be talked into joining the Union , messing myself up like that." Parker next testified
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as to a general meeting in which he quoted Superintendent Turner as telling him
that "the Union wouldn't work down there. We wasn't going to have people going
around soliciting the Union , undermining working people." The Trial Examiner
found Parker to be an unreliable witness, and his evidence in these instances is not
credited , therefore his alleged quotations constitute no violation of the Act.
Catherine Sneed , an employee of Avondale for 22 years, testified that Assistant
Foreman Vernon P. Brooks came to her about 3 weeks after the union cards were
given out quoting: "And he asked me was I for the Union and I told him no. He
said `Well, you know what you would lose if you were for the Union, your hospital
insurance and everything . . . . On Wednesday ' he gave me my statement and he
asked me, he said 'I thought you wasn 't for the Union .' I said, 'I am not .' He said,
'I heard you done signed a card .' I said , `Well, you can hear most anything in the
spinning room .' " Ola Bass, an employee of more than 10 years , testified that Fore-
man Brooks came up to her machine and asked her what she thought of the Union,
quoting Brooks: "And asked me what did I think about it and I told him I didn't
know and he said, `Well, all your people belong to it, don't they,' and I said `yeah.'
He said, `Well, do they talk to you about it,' and I said 'No."' Autrey McCoy, an em-
ployee of around 15 years, testified that Foreman Brooks came to her while she was
working and started a conversation : "He just stated that if it went union , the age
benefits, the hospital, and the profit sharing would be eliminated, of course." Vernon
Stevens testified that in a discussion with Brooks , Brooks said certain benefits would
be lost by the employees if the Union got in Avondale. The Trial Examiner found
Brooks to be such an unreliable witness on the stand that his "firm " denials are to be
disregarded , and the testimony of the witnesses against him accorded complete cre-
dence. Accordingly , it is held that the above statements of Brooks are illegal in
that they tend to interfere with , coerce, and restrain employees in the exercise of their
right to engage in protected union activities.
F. The alleged discriminatory discharges of employees Rich, Jones,
and Parker
Earlier herein allusion was made to a "Procedure for Handling Employee Prob.
lems or Complaints" set up by the Company. Five separate steps or stages were ar-
ranged for handling employee complaints in this formal reporting service: first step,
discussion with assistant foreman; No. 2 presenting matter to the foreman, who, if
the employee's complaint was not settled satisfactorily, gave him an employee prob-
lem or complaint report to be filled out by the employee and then was processed up-
ward by the personnel assistant to step No. 3 reaching the superintendent, thence
through step No. 4 to the vice president and general superintendent, and finally to the
president of the Company in step No. 5. The same reporting system perhaps ob-
tained in complaints against an employee. (This system of "thru channels" is fol-
lowed in the armed services, and generally, in the Government.) The cases of
the alleged discriminatees Rich, Jones, and Parker followed this formula.
With reference to the discharge of Rich, the facts as found are that Rich had
worked for the Company off and on since June 1933 with several interruptions, but
his most recent unbroken service began on May 15, 1950, and ended with his dis-
charge on November 17, 1954. He was a "frame hand" in the carding room at the
Eva Jane mill working the third shift from 10 o'clock at night until 6 in the morn-
ing. His immediate superiors were Assistant Foreman Nathan Forbus and Fore-
man French T. Gunter.
It appears that the "no-solicitation" for union memberships was invoked initially on
the next work shift following a conversation between Rich and Foreman Forbus on
November 10. At this meeting, Rich testified, Forbus came to his machine while he
was "creeling" and asked him what he thought about the Union, to which Rich re-
plied that he thought it was a good union. Forbus indicated that he had heard
about the union men being in town and when informed by Rich that he had already
talked with them, Forbus seemed surprised. Rich quoted Forbus as saying: "If it
goes union, this plant will shut down and we won't have any jobs" and walked off.
Forbus denied making this remark , and gave as his version that he had gone to
Rich's job to ask why he was not running the job and was told by Rich that he had
too much to do and could not run it . Forbus answered : "Well, you can top it off
and do what you can. Nobody is pushing you whatsoever." Forbus quoted Rich as
replying that "some of these days it's going to be where you can't come to me and
say nothing about it." Forbus replied: "Well, there might be. I won't say about
that . But as long as I stay here , union or no union , anyway, you are going to run
your job." My conclusion is that this altercation occurred , and that Forbus did
answer Rich saying: "If it goes union, this plant will shut down and we won't have
AVONDALE MILLS 857
any jobs." My view is that Forbus was astonished that a senior employee'of over
20 years could be so disloyal and ungrateful.
The denouement came next day. Rich was called into the office at 10:30 the night
of November 11 by Foreman Gunter, and in the presence of Forbus was read the
warning against solicitation, and was told that no union activity would be permitted
on the job. Rich admitted that he had given out a few cards but promised not to
give out any more cards in the plant. This meeting ended with Rich asking: "What
does this mean, am I fired? And he said, no, you forget it and I'll forget it. He
said, I don't want any more on the job." However, Rich continued his advocacy of
the Union with employees in other departments during working time and on Novem-
ber 17, a week after he was warned, he was again reported to Gunter for soliciting
on the job. Gunter had Forbus bring him into the office, again read the warning
and stated: "You lied to me. I am going to have to lay you off for 30 days." In
reply to Rich's query why he was not fired outright Gunter said "that is out of my
power. The personnel man will have to fire you." According to Gunter, the reason
for the suspension and subsequent termination of Rich was his solicitation of the
elevator operator, Glidden Holt, on the November 17 shift .2 Rich, on cross-exami-
nation, also admitted "soliciting" one of the female employees for union membership
while she was at work. Both worked in departments other than his own. Subse-
quently Rich appeared before and appealed his suspension and discharge to Superin-
tendent Callaway, Personnel Officer Cleghorn, B. H. Haines, and finally the presi-
dent of Avondale, J. Craig Smith-all of whom affirmed Rich's discharge for vio-
lating the rule, after warning against soliciting union memberships, while on com-
pany time from persons who were working. The Company's definition was the
literal application of the one set forth in the Peyton Packing Company case (supra),
and Rich's discharge came within its purview. Accordingly, I shall recommend to
-the Board that the complaint be dismissed as to Rich.
James Melvin Jones was a "doffer" employed in the spinning room of the Eva Jane
mill. (A doffer is one who replaces the spinning bobbins which are full of yarn with
empty bobbins upon which the thread is to be wound.) Jones came to work for Avon-
dale first in February of 1943, quit and was rehired in July 1944, again in July 1946,
again in June 1947, and finally as of April 1954 worked until discharged November
18, 1954. Jones was one of the very few employees involved in this case who had
previously been a member of a union, or who had worked in a unionized plant. He
testified that he signed a union card on November 11-1 day after the organizing
campaign started at Sylacauga. He was I of the 60 Avondale employees given union
cards for distribution. Jones himself testified that on November 12 during working
hours he solicited spinners in the spinning room to sign cards, among whom was a
female employee, a Miss Tucker. As Avondale Counsel Constangy points out, this
activity was observed and on the next morning, November 13, in the presence of
Assistant Foreman Cabiness, Foreman Phurrough read to Jones the so-called rule
against solicitation and warned him that any further violation of the rule would result
in summary discharge, prefacing: "Jones, you have been reported working for the
Union." The testimony concerning Jones' activities, after being warned by Foreman
Phurrough on November 13, presents Jones' interpretation of and defense against the
charge of solicitation for which he was suspended for 30 days and subsequently
discharged. Jones' plea was that after being warned he did not bring any more cards
into the plant for distribution nor attempt to distribute cards, but kept them in his
car outside the plant.
Benny Nicholson, who "doffed" adjacent to Jones, testified, however, that "about a
couple of days before he was suspended he gave me the cards." (Jones was suspended
on November 18, thus this would have occurred on the 16th.) Nicholson also stated
that Jones was worrying him on the job by soliciting him in connection with the
Union-"dogged me all the time." Nicholson's testimony of the three occasions on
which he was solicited and the actual date he was given a card or cards by Jones
rendered his testimony unreliable-what with putting the dates of solicitation as
a General Counsel Hamilton makes the argument in his comprehensive brief that although
Rich had a conveisation substantially as reported by Holt Gunter at 3 o'clock in the
morning of the shift on which he was terminated, earlier in the shift Forbus came to Rich
and said , "Well, John, I can talk about the union and you can and everybody can talk
about the Union " [Emphasis supplied ] General Counsel characterizes this as "a clearer
case of deliberate entrapment would be most difficult to imagine " The term "entrap-
ment" is usually applied to criminal, rather than civil actions . The Trial Examiner feels,
however , that the exception to the rule provided in criminal situations exists herein, I. e.,
there was an intent to continue his union activities and advocacy without the mechanical
act of distributing cards, of which intent Forbus was aware or at least suspected.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
November 11, 12, and possibly on the morning of the 13th; all of which would have
occurred before Jones was warned . He began by giving the impression that Jones
himself gave him the card on Wednesday , the 16th , but was led into admitting that
Jimmy Dupree , another "doffer," gave him the card outside the mill and after quitting
time. Dupree corroborated Jones' version . Nicholson turned over this card the next
day (Friday) to Foreman Phurrough, who then made these activities the basis for
Jones' suspension and ultimate discharge . Jones' version , which I accept, was that
Nicholson asked for the card, and that he told Nicholson that he had been warned
about giving out cards but would give him a card outside the gate the next (Thursday)
morning. Instead, Dupree got the card out of Jones' car and gave it to Nicholson,
who then took his first opportunity to give it to Phurrough . Jones , in every step of
the proceedings , has steadfastly contended that he was not guilty of violating the rule
against soliciting after the warning and during working hours . My opinion, based
upon Jones ' demeanor under oath on the stand , is that Jones is sincere in his belief.
My conclusion is, however, that Jones violated both the spirit and the letter of the
rule by soliciting after being warned by Supervisor Phurrough. His definition was
that he "hadn 't solicited the union and hindered the help ." Rejecting Nicholson's
version of the card incident does not, however, mean that I do not believe that Jones
and all others interested , pro and con , did not discuss the union organizing program.
The record is replete with evidence that employees freely talked about subjects of per-
sonal interest. Indeed, there were 60 adherents of the Union interested in organizing
the plant all equipped with cards and who were more or less active-of which and of
whom management doubtless was well informed-witness the calling in for question-
ing of those suspected of engaging in union activity together with the allegations of
interference, restraint , and coercion charged against supervisors.
Jones not only occupied the position of being the exceptional employee who-had
held union status, but he was the cousin of Personnel Officer Huel Cleghorn, who,
incidentally, was responsible for Jones' hire and transfer to the Eva Jane mill. Signifi-
cantly, to me, it appears that on November 17 Cleghorn came to Jones' job and told
his cousin, Jones, that Phurrough had requested him to speak to Jones about his activ-
ity for the Union and Jones quoted Cleghorn: "Now, you can do whatever you please,
but Mr. Phurrough likes your Nodale (that's my wife) and he wants you to stop work-
ing for the union." The Trial Examiner concludes that the purpose of Cleghorn's
mission, instigated by Phurrough, was to get Jones, although an ardent union expo-
nent, to desist from his union activity within the plant and thus save his job. Jones
was a forthright and personable witness when he appeared upon the stand. Manage-
ment had no alternative but to suspend and later discharge Jones, the outstanding
union adherent in the plant, if it intended to enforce its "rule" uniformly. This I find
not to be a discriminatory discharge, and I shall recommend that the complaint be
dismissed as to Jones.
Calvin W. Parker, the remaining dischargee to be considered in this case, was a
beamer tender working on the third shift in the slashing-beaming or spooling- slashing
department of the Eva Jane mill. He contends that he was never warned. The
records indicate that Parker was first employed in May 1942, again in September
1946, again in November 1947, again in June 1949, and on the last occasion in July
1954 until suspended on November 16, 1954. Parker's version was that when he came
in to go to work the shift of the 17th, Foreman Arnold Taylor was waiting for him to
arrive and "he told me not to clock in, come with him." He testified he was taken to
Supervisor Felbert Pickren's office where Pickren read from a slip of paper which
stated that he had been reported to that office as soliciting union memberships on the
job while at work, and that he was suspended for 30 days. Parker stated that he told
Pickren that he did not know it was against company rules to solicit for the Union on
the job, and denied that he had been previously warned or talked with any supervisor
about the Union. He said further that he asked Pickren to help him straighten the
thing out to where he could go ahead and work, if it was at all possible, but that
Pickren said there was not anything he could do: "so far as he was concerned, I was
suspended for 30 days and he had my check and had a slip of paper which he signed
and I was to take it to Mr. Callaway's office to get paid for two shifts on the nearest
estimate." Parker admitted that he had been soliciting on November 12, but con-
tended that he did not ask anybody to sign a card in the plant, and only at "clean-up
hours" or in the bathroom. During these times he had gotten Joe Baker, J. T. Downs,
James Patterson, and Billy Craddock to sign up. Asked if he had solicited anyone
to sign a card in the beaming room , Parker answered : "I had them in the beaming
room if they wanted to sign they could have." The Trial Examiner found Parker's
extensive testimony diffused , and his demeanor and deportment on the stand rendered
his recitals suspect.
Pickren's version was that he talked to Parker on two occasions , the first on
Tuesday night, November 16, "right at ten o'clock" and again Wednesday morning,
AVONDALE MILLS - - 859
November 17. He testified that he said to Parker: "'We have already told you one
time about soliciting on the job and it has been brought to my attention again.' He
said that he knew about it and said he didn't think he was going to get into trouble.
I told him I was suspending him for 30 days. He asked me couldn't I help him get
his job back. I told him no. He asked me who could he see, could he see Mr.
Callaway. I told him he could if he wanted to but I didn't think Mr. Callaway
could help him." Pickren explained the circumstances of suspending Parker after
the first warning, stating: "I was in the beamer room with Arthur Elrod . I talked
with him all the time about fishing and he told me, said, 'Nick,' said 'Calvin Parker
asked me this morning in the bathroom about signing the card,' and said, 'I went
and punched in and come back to my job,' and said, 'he came out on my job and
stood there and asked me to sign one.' " Personnel Officer Cleghorn testified that
Pickren sent for Parker on Tuesday night, November 16, at the beginning of the
shift and "read him this company policy." (It was the only time that Cleghorn was
present when an employee was read the warning.) Pickren filed an official personnel
report stating that Parker was warned on November 16.
Thomas I. Craddock, a beamer tender ordinarily employed on the second shift,
but who had asked for the third shift on November 12 in order to attend a high
school football game,, was working on the fifth frame near Parker who was on the
ninth frame. Craddock testified as to a conversation with Parker, stating: "At first
he came in there when he first came to work, after the ball game when we first came
to work, before we clocked in, he wanted me to sign a union card. I told him I
didn't want to sign one." But he stated that Parker came twice again to his frame
during work, with the result that Craddock signed the card. Craddock subsequently
reported the facts to Pickren.
Arthur D. Elrod, a tender on the first shift which follows the third shift on which
Parker worked, testified that he came in at 5:30 on Wednesday, November 17,
and shortly thereafter Parker came into the bathroom "where I was and asked me
would I sign a card." Unsuccessful at this time, Parker returned around 6 after he
had gone on the job and requested him to sign a card, and also asked him to go to
a union meeting. Elrod, likewise, reported the facts to Supervisor Pickren.
In view of the corroboration of Pickren's testimony and the equivocal and diffusive
testimony of Parker himself, the conflict is resolved in favor of Pickren's version.
Accordingly, the Trial Examiner finds that Parker solicited union memberships of
employees on the job after having been warned that such solicitation was in violation
of a company rule, and his resultant discharge was not in violation of the Act as
being discriminatory. Accordingly, it will be recommended to the, Board that the
allegation be dismissed.
G. Conclusion
Since Rich, Jones, and Parker were discharged because of alleged violation of a
company rule prohibiting solicitation, it is necessary to find out whether there was
such a "rule." The, so-called rule in this case is not in fact a "rule." Rather, it was
a warning against solicitation of union memberships in the plant during working
hours, while the employees solicited were at work. Admittedly, this warning came
about as a result of the Union's organizing program. The General Counsel con-
tended that this "purported rule" was unlawful because: (1) It was limited to union
solicitation; (2) it was adopted without any regard to business necessity for the
sole and discriminatory purpose of impeding its employees' self-organizational ef-
forts; (3) it was used as a device to threaten, coerce, and interfere with employees
in their organizational activities; and (4) it was enforced against employees while
supervisors openly campaigned against the Union. -
Respondent contends that the basis of its warning was a recognized rule in industry
generally, and in Avondale certainly as a plant rule, that "working time is for work,"
and that no solicitation of any kind was countenanced without disciplinary action
after warning; and that this restatement of its existing rule was necessary when it
became apparent that there was extensive union solicitation being carried on which
was interfering with production and efficiency and was causing complaints -by em-
ployees who were being interfered with at their jobs. On the basis of the entire
record, the Trial Examiner finds that there was a valid but unwritten rule against
solicitation of any kind on working time-excepting only the annual Red Cross
charity drive, and that the warning was predicated thereon. Therefore, unless in-
herently bad solely because the warning was limited to union solicitation , and if not
discriminatorily applied and used as a pretext , the rule was sound . Cf. Peyton
Packing Co., supra. Also to argue that the rule was invalid because not formulated
and enforced until the union adherents began soliciting is a philosophic non
sequitur--otherwise the occasion would never have arisen. The testimony of Plant
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Superintendents Callaway and Pasley together with those of Foremen Gunter, Pick-
ren, and Forbus indicate that the solicitation activity was interfering with production
and plant efficiency . Therefore , it cannot be held that it was adopted and enforced
without any regard to business necessity for the purpose of impeding employees' self-
organization efforts by interfering with , restraining , and coercing them when em-
ployees were leaving their jobs to solicit union membership of working employees.
This is precisely what happened . Again the test is whether a presumptively valid
rule was discriminatorily applied , and the burden of proof was on the General Counsel
to prove otherwise . He did not sustain that burden . It is elementary law that
where two or more possible inferences may be equally drawn , one of legality and the
other illegal , the legal inference must be drawn as the motivation of the Act. With
reference to the contention that the rule was enforced against employees while super-
visors openly campaigned against the Union , the Board recently held in Nutone,
Incorporated (supra ), that : "Valid plant rules against solicitation and other forms
of union activity do not control an employer 's actions . Management prerogative
certainly extends far enough so as to permit an employer to make rules that do not
bind himself."
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case , I make the following:
CONCLUSIONS OF LAW
1. Respondent , Avondale Mills, is engaged in commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
2. Textile Workers Union of America , CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
3. By interrogating its employees concerning their union sentiments and activities,
soliciting employees to withdraw their membership cards from the Union , threaten-
ing to close down the plant if the Union came in, and threatening to take out certain
benefits, the Respondent interfered with, restrained , and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act, and thereby engaged in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The Respondent has not engaged in unfair labor practices within the meaning
of Section 8 (a) (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Trade Winds Company, Inc. and American Federation of Labor-
Congress of Industrial Organizations ,' Petitioner . Case No.
10-RC-3320. March 20,1956
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 ( c) of the National
Labor Relations Act, a hearing was held before Philip B. Cordes,
hearing officer . The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed?
1 The AFL and CIO having merged subsequent to the filing of the petition in this case,
we are amending the identification of the Petitioner accordingly.
2 The hearing officer referred to the Board the Employer 's motion to dismiss the peti-
tion The motion alleges , In substance , that (1) the Petitioner is not a labor organiza-
tion for the purposes of "collective bargaining ," and (2 ) if the Petitioner wins the elec-
tion, there may be a local established at the time of certification , which may not be in
compliance Contrary to the Employer 's contention , it is well established that the Peti-
tioner is a labor organization within the meaning of the Act. .Sherold Crystals, Inc., 104
NLRB 1072-1073; Glass Fiber Moulding Company, 104 NLRB 383 , 385. As there is
presently no local of the Petitioner admitting the employees Involved in this proceeding to
115 NLRB No. 126.