B.v.D. Co., Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1954

110 N.L.R.B. 1412 (N.L.R.B. 1954)

1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. V. D. COMPANY , INC. and INTERNATIONAL LADIES' GARMENT WORK-
ERS UNION , AFL. Case No. 15-CA-479. December 14, 1954
Decision and Order
On March 2, 1953, Trial Examiner Eugene E. Dixon issued his in-
termediate 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 Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a supporting brief.'
The Board has reviewed the rulings made at the hearing and finds,
that no prejudicial error was committed. The rulings are hereby af-
firmed.2 The Board has considered the Intermediate Report, the ex-
ceptions and brief, and the entire record in the case, and hereby adopts
the Trial Examiner's findings, conclusions, and recommendations with
the modifications and additions discussed below:
1. We agree with the Trial Examiner's finding that the Respondent
independently violated Section 8 (a) (1) of the Act. However, in sup-
port thereof we rely only on incidents 1, 3, 6, and 7 as set out in
section III, D, of the Intermediate Report.
2. We adopt the Trial Examiner's finding that the Respondent dis-
criminatorily discharged Mattie Couch on February 20, 1952. We
do not, however, adopt his similar finding as to Allison Shumack and
Odean Bullock. The Trial Examiner found that the Respondent's
reasons for discharging Shumack and Bullock were pretexts and
inferred that the real reason was discriminatory. The record is totally
lacking in evidence that the Respondent was aware of the organiza-
tional activities of these two individuals. Such knowledge by a re-
spondent is a prerequisite to a finding that a discharge was made be-
cause of organizational activity by a dischargee. In the absence of
such evidence, we must find that the General Counsel has failed to
prove that the Respondent discharged Shumack and Bullock for
discriminatory reasons.'
3. We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (3) of the Act in refusing to reinstate Bernice Gunter
when she applied for work on May 19,1952.
1 The Respondent has requested oral argument. In our opinion the record and excep-
tions and brief fully present the issues and the positions of the parties Accordingly,
the request is denied.
2 No exceptions were taken to the Trial Examiner 's rulings at the hearing dismissing
certain allegations in the complaint
3 The smallness of the community and the plant is not sufficient standing alone to justify
the inference , made by the Trial Examiner , that the Respondent knew of the particular
union activity of Shumack and Bullock . In adopting the Trial Examiner 's conclusion
that Couch was dlscrimmatorily discharged , we rely upon Forelady Vickie Bowman's.
direct knowledge of Couch 's participation in the union meeting on February 18, 1952-
110 NLRB No. 206.
B. V. D. COMPANY, INC. 1413
4. We likewise adopt the Trial Examiner's findings and conclusion
that the Respondent discriminatorily discharged those employees who
had participated in the "clocks" incident on April 22, 1952,4 or those
who, the Respondent erroneously believed, had been involved in that
incident.5
The Respondent contends, however, that reinstatement and back
pay should be denied the unlawfully discharged employees and strikers
because of the violence with which the strike was conducted.6 The
Trial Examiner rejected this contention because, he held, with two
exceptions, the discriminatees were not shown individually to have
engaged in misconduct on the picket line and, further, there was in-
,sufficient evidence to establish a conspiracy on the part of the strikers
to commit such violence. The Trial Examiner did find, however, that
the pickets "received counsel, aid, and encouragement" from the nu-
merous sympathizers outside the plant; that some of these sympa-
thizers "engaged in coercive and intimidating conduct in connection
with the picket line activity"; and that the picketing employees
"may have been happy about events as they developed-the dynamit-
ing of the plant, the cut telephone wires, bullet holes on the windows,
,etc." The Trial Examiner also stated that some of the pickets might
even have had knowledge of violence being contemplated, but he held
that the elements necessary to prove conspiracy were lacking. Finally,
the Trial Examiner ordered the usual remedial order for two dis-
•chargees who were identified as having thrown eggs at nonstrikers,
:although in ordinary circumstances, he acknowledged, he would have
denied them reinstatement and back pay. He did not deny that
remedy here because he considered that the conduct of these two em-
ployees was comparatively trivial as against the "seriousness of the
events that occurred-the dynamiting, the firearms display, the Na-
tional Guard, and all the rest, ..."
The Trial Examiner has not set forth the details of the violence
and lawlessness which marked the conduct of the strike and resulted
in calling out the National Guard to preserve order and the issuance
,of temporary and permanent injunctions. These details are neces-
sary, however, for a proper determination of a remedial order. Dur-
ing the strike, plant telephone wires were severed preventing tele-
4 N L R B. v Kennametal, Inc., 182 F. 2d 817 (C. A. 3) ; Mac Smith Garment Com-
pany, Inc., 107 NLRB 84 See also Gullett Gin Company, Inc. v. N. L. R. B., 179 F. 2d
499 (C. A 5), reversed on another issue 340 U. S 361
8 New York Telephone Company, 89 NLRB 383 , 384; Thermoid Company, 90 NLRB 614,
,634-635 In this latter group are Gladys Scovel and Lena May. Juanice Hill is in-
cluded in the foimer group of those who participated in the "clocks" incident Hill was
discharged with the other members of the union committee which had sought to meet with
the Respondent's vice president, Dimitri Nicholas
9 The record shows that substantially all of the April 22 dischargees and the alleged
•discriminatees who joined the strike later were reinstated to their jobs in August 1952.
In practical effect, therefore , the issue to be resolved is principally one over the award
,of back pay to the dischargees and strikers.
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
phone communication to and from the plant. Bullets were fired into
plant windows at night from passing automobiles. Dynamite was
hurled at the plant's electric substation, seriously damaging the plant
property. Groups of pickets flagged down trucks seeking to enter
or leave the plant and threatened drivers in order to cut off transpor-
tation of goods to and from the plant. Union Organizer Ruth Miley
blocked a truck leaving the plant by parking her automobile in front
of it and moved her automobile only on the insistence of the sheriff.
Pickets intercepted and blocked not only private vehicles, but com-
mon carriers and trucks entering to pick up the United States mail.
Nails were thrown on company roadways to impede truck entry into
the plant. Picket signs carried markings of truck license numbers
to further intimidate truckers. Strike sympathizers shadowed trucks
leaving the plant premises and threatened drivers. On one occasion
a car driven by Respondent's Vice-President Nicholas was jammed
to the side of the road by another car driven by strike sympathizers ;
on another occasion, his car was similarly forced into a roadside
ditch. Pickets publicly called the nonstriking employees "scabs, yel-
low scabs, cowards, yellow-livered cowards, yellow-bellied cowards,
spineless cowards," and threatened the nonstrikers with physical vio-
lence and "outside help." On one occasion, dischargees Bessie Bush
and Alda Renfroe, together with Union Organizer Miley and a large
group of strikers and sympathizers, made a completely unprovoked
attack on nonstrikers peacefully standing near a highway bus stop
on their way home from work. The striking employees who stood in
front of a nearby cafe, which was strike headquarters, threw eggs at
the nonstrikers. One of the nonstrikers testified that her eyeglasses
would have been hit if she had not moved her head in time to avoid
the onslaught. Discriminatees Bush and Renfroe admitted throwing
two eggs each, but other strikers or sympathizers also joined in the
barrage. According to one of the girls standing at the bus stop, the
eggs "was landing so fast and so plenty around there till I couldn't
exactly say where they all landed. . . . There was so many of them I
couldn't keep up with them."
Union sympathizers aided and abetted the strikers. C. L. Wallace,
business manager of the Boilermakers' local in the area, together with
members and officials of other local unions, attended organizational
meetings and promised financial and other assistance to the strikers.
Wallace and other sympathizers, including James Bullock, husband
of one of the alleged discriminatees, shadowed trucks leaving the plant
and threatened drivers. Wallace gave bond for one of his fellow
union members charged with assaulting a truckdriver. Aaron
Nellums, husband of a striker and a member of the Boilermakers'
local, threatened to "slap the hell out of [Respondent's Vice-President
Nicholas] if he walked in the middle of the road." Nellums also ad-
B. V. D. COMPANY, INC. 1415
mitted that he had "slapped the hell" out of Respondent's supervisor
Udell Noff, who was hospitalized as a result of the beating. Wallace
admitted telling the sheriff, "We'll get the Seamen out of Mobile
and the Shrimpers out of Biloxi. . . . We'll mix it with them." This,
threat to bring in seamen and shrimpers, who had the reputation of
being tough, was widely circulated and believed. The husband of
one of the nonstrikers rushed to the plant in the middle of the work-
day to urge her to stay away from work because of the expectation of
widespread violence. The local sheriff took the threat so seriously
that he requested the State governor to send the National Guard to,
the scene to protect life and property.
The Governor of the State of Mississippi sent the National Guard
to keep order during the strike. The Chancery Court of Jackson,
County, Mississippi, finding that an emergency existed, issued a tem-
porary injunction on April 24, 1952, restraining Organizer Miley, the
Union, the dischargees, and others from illegal picketing, from the
use of force, threats, coercion, intimidation, or picketing to prevent
employees from working, from hindering, obstructing, or preventing
motortrucks from entering or leaving the plant, from molesting or-
interfering with trucks or their drivers on the county highways.
from making threats and committing acts of violence against the
Respondent's officers and employees, and from committing unlawful
acts against the Respondent, "its property or in the interruption of
its service." After a subsequent full State court hearing which ex-
tended over several days, the court made the injunction "final and
perpetual." However, even after the issuance of the permanent
injunction the violence continued.
Section 10 (c) of the Act provides that if the Board finds that a
respondent has engaged in or is engaging in an unfair labor practice,
the Board shall issue an order requiring the respondent to cease and
desist from such unfair labor practice, and to "take such affirmative
action including reinstatement of employees with or without back pay,
as will effectuate the policies of this Act: . . ." [Emphasis supplied.]
The Trial Examiner says that the Respondent failed to prove a con-
spiracy on the part of the strikers to commit violence and therefore
that the strikers should not be denied the usual remedial order even
though they accepted the benefits of the violence and made no attempt
to stop or to repudiate it. The issue as we see it is not whether
the strikers were engaged in a civil or criminal conspiracy to commit
violence. It is rather whether, in the context of violence in this case,
it will further the purposes of the Act, which is designed to bring
about the peaceful resolution of labor disputes, to require the Re-
spondent to reinstate and make back-pay awards to the employees as
if no untoward conduct had occurred. The answer we are required
to make seems self-evident. We cannot blind ourselves to the wide-
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-spread physical violence, destruction of property, intimidation, and
threats which accompanied the strike. To do so would be to put a
premium upon force and violence in the conduct of strikes and to
subvert the legal remedies provided by the Act.
The strikers ,cannot evade the duty they had to keep the strike activ-
ities within lawful bounds by professing obliviousness to the wide-
spread violence, all committed in furtherance of the strike. Much of
it was by identified or unidentified strikers or pickets or by outsiders
who came to the aid of the strikers either on the express invitation or
with the tacit approval of the Union. Whether or not the strikers
expressly authorized such conduct, it remains true that they invited and
accepted the benefit of it and took no steps to discourage or repudiate
it .7 The fair inference is that at least those strikers who continued
to picket during the violent strike welcomed, approved, and ratified
such conduct. We do not believe that in these circumstances it would
effectuate the policies of the Act to order reinstatement and back pay
to such strikers. There are six discriminatees, however, Bernice
Gunter, Rose Furby,8 Lulu (or Laura) Mae Elam, Rose Herndon,
Nellie Rouse, and Mildred Burchfield, whose support of the strike was
only passive, i. e., they remained away from work but did not picket or
otherwise lend affirmative aid to the strike.' We do not think that
such discriminatees can be regarded as having approved or ratified the
strike violence. We shall therefore issue the usual back-pay and rein-
statement order for such employees.
We do not share our dissenting colleagues' doubts about the equitable
power of the Board to fashion a remedial order which will best ef-
fectuate the policies of the Act in the. light of all the circumstances
of the case. Nor do we agree that, to impose some responsibility on
the strikers in a case involving the most blatant and violent miscon-
7Cf. Marshall Car Wheel and Foundry Co. of Marshall, Texas, Inc., 107 NLRB 314;
Marathon Electric Mfg. Corp., 106 NLRB 1171.
8 The Respondent contends that some of these employees cannot be considered strikers
because they refrained from work for personal reasons , and that the General Counsel con-
ceded this The record shows that during a colloquy between attorneys for the parties
there was agreement on the general proposition that employees who stay home during a
strike but for reasons not based on the strike are not strikers . The General Counsel added
during extemporaneous argument that he did not know but he thought Rose Furby was
such an employee . But we are satisfied that the Respondent could not reasonably con-
strue this ambiguous statement as a definite admission , particularly in view of the clear
evidence that Furby, after staying home at first because of her husband's illness, re-
frained from work thereafter because she had signed a union card and did not want to
cross the picket line.
8 We reject the Respondent 's contention that it was justified in refusing to reinstate these
strikers on June 12 , 1952, when they made unconditional application for reinstatement
The Respondent ' s expression of doubt that the strikers ' application was not made in good
faith does not justify a finding of bad faith as to the discriminatees named above, and
Respondent 's doubts as to the applicants ' good faith is clearly overborne by the unequiv-
ocal words of the June 12 application , that they "hereby offer to return to work for the
company unconditionally and immediately " Nor can the alleged objections of nonunion
employees justify barring job rights to the innocent discrnnmatees Gunter ' s job rights,
unlike those of the June 12 applicants , date from May 19, 1952 , when she applied for
reinstatement.
B. V. D. COMPANY, INC. 1417
duct, pursued to terrorize and intimidate employees and to destroy com-
pany property, "constitutes an unwarranted impairment of the right to
strike."
There is no question but that widespread violence of the most lawless
character accompanied the strike. The Trial Examiner so found.
The General Counsel did not except to such finding. We cannot dis-
miss this finding by terming the testimony upon which it was based as
general, vague, ambiguous, or hearsay. Nor can we dismiss from our
consideration, as suggested by Member Murdock's dissent, the action
of the State court in enjoining the violent acts. This is not to say
that the State court judgment is determinative of the question which
we must resolve upon the evidence before us. But it is altogether
appropriate for us to consider the State court's judgment in the mat-
ter as relevant, competent, and of probative value in making our own
independent determination.10
Nor is the right to strike impaired by our decision. We do not
hold, as stated in the dissent, that strikers who are themselves blameless
are responsible for the lawlessness of strangers. But we do say that
strikers have no right to protection when they, at the very least, wel-
comed the aid of criminal elements who took over their strike and dese-
crated it with violence and terrorism. We are forced to conclude that
those strikers who continued to picket not only approved and ratified
the violence but actually invited it. We are compelled to this con-
clusion because there is no evidence in the record that the strikers took
any action at all-by admonishment, denunciation, or public pro-
nouncement-to discourage the commission of violence or to disasso-
ciate themselves from it. We do not suggest, as the dissent states, that
the strikers could have purged themselves only by abandoning their
picketing. There were other avenues open to them by which they
could have disavowed the misconduct. They chose none of them. We
fail to see that the requirement that strikers keep their strike within
legal bounds abridges their right to strike.
Finally, we cannot agree with the dissenting position that the rem-
edy we adopt is not required to protect the public interest because
that interest is served by other existing laws which proscribe violent
conduct, or that other laws or sections of this Act outlawing union
misconduct divest the Board of its statutory power to shape a remedy
appropriate to the facts in each case. The Supreme Court has ad-
monished us that the Board cannot administer the remedy provi-
sion of Section 10 (c) without "careful accommodation of one statu-
tory scheme to another." 11 But regardless of other means , statutory
or otherwise, which may be available to put a stop to unlawful strike
10 Nashville Corporation, 94 NLRB 1567, 1569
11 Southern Steamship Co v. N L R. B , 316 U 8 31, 47.
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activity, we are not relieved of the responsibility to carry out our own
.statutory mandate.
THE REMEDY
Having found that the Respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and-take cer-
tain action designed to effectuate the policies of the Act.
We have found that the Respondent discriminated against Mattie
,Couch) 12 Bernice Gunter, Rose Furby, Lulu Mae Elam, Rose Herndon,
Nellie Rouse, and Mildred Burchfield and that the Respondent thereby
violated Section 8 (a) (3) and (1) of the Act. We have also found
that these employees did not participate in or ratify the strike vio-
lence. Accordingly, we shall order that the Respondent offer to the
.above-named employees, who have not already been offered reinstate-
ment, immediate and full reinstatement to their former or substan-
tially equivalent positions," without prejudice to their seniority or
•other rights and privileges and make them whole for any loss of pay
suffered by reason of the discrimination against them. Said loss of
pay for each employee, based upon earnings which he normally would
have earned from the date of the discrimination against him to the
date of the Respondent's unconditional offer of reinstatement, less
net earnings,14 shall be computed on a quarterly calendar basis in ac-
,cordance with the formula adopted by the Board in F. W. Woolworth
Company.15
Because of the nature of Respondent's unlawful conduct and its
underlying purpose, we are convinced that the unfair labor practices
found are persuasively related to other unfair practices proscribed
by the Act and that a danger of their commission in the future is to
be anticipated from the course of the Respondent's conduct in the past.
The preventive purpose of the Act will be thwarted unless our order
is coextensive with the threat. In order, therefore, to make effective
the interdependent guarantees of Section 7, to prevent a recurrence
of unfair labor practices, to minimize strife which burdens and ob-
structs commerce, and thus to effectuate the policies of the Act, we
will order that the Respondent cease and desist from infringing in
any manner upon the rights guaranteed by Section 7 of the Act.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
,of the National Labor Relations Act, as amended, the National Labor
13 The Respondent discriminatorily discharged Mattie Couch on February 20, 1952,
before the strike. The record shows that she did not picket or engage in the strike
violence
13 See The Chase National Bank of the City of New York , an Juan, Puerto Rico , Branch,
'65 NLRB 827.
14 See Crossett Lumber Company , 8 NLRB 440.
15 90 NLRB 289.
B. V. D. COMPANY, INC. 1419
Relations Board hereby orders that the Respondent, B. V. D. Com-
pany, Inc., Pascagoula, Mississippi, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Ladies' Garment
Workers Union, AFL, or in any other labor organization of its em-
ployees, by discharging or refusing to reinstate any of them, or by
,discriminating in any other manner in regard to their hire, tenure,
.terms,br conditions of employment.
(b) Threatening employees with job loss because of union activity
and prohibiting union solicitation and discussion on Respondent's
premises during the employees' nonworking time.
(c) Interrogating employees concerning their membership in, or
activities on behalf of, International Ladies' Garment Workers
Union, AFL, or any other labor organization, in a manner constitut-
ing interference, restraint, or coercion in violation of Section 8 (a) (1).
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the International Ladies' Gar-
ment Workers Union, AFL, or any other labor organization, to bar-
gain collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, and 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 organization as a
,condition of employment 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 :
(a) Offer those employees named in the notice attached as an Ap-
pendix to this Decision and Order, who have not already been offered
reinstatement, full and immediate reinstatement to their former or
'substantially equivalent positions, without prejudice to their seniority
and other rights and privileges, and make whole all employees named
in the attached Appendix in the manner set forth in the section of
this Decision and Order entitled "The Remedy."
(b) Upon request, make available to the Board or its agents for
examination and copying all payroll records, social-security payment
records, timecards, personnel records and reports, and all other rec-
ords necessary to analyze the amounts of back pay clue.
(c) Post at its plant in Pascagoula, Mississippi, copies of the notice
attached hereto marked "Appendix." 1G Copies of such notice, to be
furnished by the Regional Director for the Fifteenth Region, shall,
it In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
-words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order "
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after being duly signed by the Respondent's authorized representa-
tive, be posted by the Respondent immediately upon receipt thereof,.
and maintained by it for sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director for the Fifteenth Region in
writing, within ten (10) days from the date of this Order, whrit steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as
it alleges that the Respondent discriminatorily discharged Allison
Shumack and Odean Bullock.
MEMBER MURDOCK, dissenting in part:
I dissent from the decision of the majority insofar as it withholds
the usual remedy of reinstatement and back pay from discriminatorily
discharged employees and strikers who did not engage in misconduct.
The members of the majority here adopt a new policy of imputing
guilt which is both inequitable and contrary to a long line of Board
decisions and court rulings. Such a punitive measure is uncalled for
by the practicalities of the case and constitutes an unwarranted im-
pairment of the right to strike. It leaves unremedied substantial
unfair labor practices. It will not, in my opinion, promote the
industrial peace which the Act seeks to effect.
The majority here finds that the Respondent engaged in serious
unfair labor practices in violation of Section 8 (a) (1) and (3) of
the Act. Thus, in February 1952, shortly after self-organization had
begun among the Respondent's employees, the Respondent through
its forelady warned employee Couch that the Respondent's predecessor
could not operate with the union and that Couch was hurting herself
and others. The next day the Respondent discriminatorily discharged
Couch at whose home a union meeting had been held. During the
same month the Respondent through a supervisor made express the
threat implicit in Couch's discharge and told other employees that
"usually people who had anything to do with the union campaign
lost their jobs." On April 22, the Respondent discriminatorily dis-
charged 20 or more employees when they sought to discuss union
recognition with management. Thereupon the employees went out
on strike in protest against the Respondent's unfair labor practices.
On May 19 the Respondent discriminatorily refused to reinstate
striker Gunter upon her application for work. Around June 12 the
Respondent illegally refused to honor the unconditional offer of the
unfair labor practice strikers to return to work and thereby prolonged
the strike. In Augus+, 1952, following a settlement arrangement re-
B. V. D. COMPANY, IN C. 1421
turning substantially all employees to work, the Respondent estab-
lished an unlawfully restrictive no-solicitation rule. On August 21
the Respondent's plant manager summoned an employee to his office
and in violation of the Act questioned her as to whether she had been
involved in the "clocks" incident of April 22 and whether she had
attended a union meeting on April 21.
The strike in this case, then, was lawful in its nature and plan,
caused and prolonged by the unfair labor practices of the Respond-
ent. During the course of the strike, however, certain acts of violence
were committed, chiefly by unidentified persons, and some lesser mis-
conduct occurred, for the most part not on the picket line. The ma-
jority concludes that these acts require a withholding of the Board's
customary reinstatement and back-pay order from all employees who
picketed during the strike whether or not the individual strikers per-
sonally engaged in the misconduct. With this unprecedented and
sweeping removal of innocent employees from the protection of the
Act, I cannot agree. Misconduct which occurred during the strike is,
of course, deserving of censure. Disapproval of such misconduct, how-
ever, does not in my opinion warrant the conclusion reached by the
majority that issuance of the Board's usual remedy for discrimina-
tion would not further the purpose of the Act. As my colleagues in
the majority state, we cannot blind ourselves to the misconduct which
accompanied the strike. But neither can we permit our aversion to
violence to cause us to lose sight of other significant aspects of the
case or to color our appraisal of the evidence of misconduct presented
in the record. The majority's word picture is a skillfully blended
montage. It combines "shots" of the most serious misconduct which
was committed by unidentified persons (without so labeling it), mis-
conduct committed by outsiders not in the presence of strikers, mis-
conduct based on testimony and hearsay testimony of a witness not
generally credited by the Trial Examiner, and gratuitous conjecture
of the Trial Examiner, along with a few instances of lesser miscon-
duct on the part of a few identified pickets or strikers. The resulting
picture is an indiscriminate blur of violence. This arouses the desired
emotional response, but is of little help in a dispassionate effort to de-
termine under established principles which, if any, of the discharged
employees and strikers have so misconducted themselves as to justify
denial of the normal remedy for the Respondent's discrimination
against them of reinstatement and back pay. Under existing author-
ity the occurrence of violence during a strike does not in itself warrant
denial of the Board's usual remedy to individual strikers who are not
shown by the evidence to have engaged in violence. I therefore find
it necessary to discuss in some detail in this opinion the evidence on
violence in order that it may be seen in clear outline and perspective.
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the outset I would note that the issuance of an injunction by the
Chancery Court of Jackson County, Mississippi, is not controlling in
determining whether misconduct occurred which should bar an indi-
vidual striker from reinstatement and back pay. The determination
of this question is the exclusive responsibility of this Board, to be
made upon the basis of the evidence presented in the record in this
proceeding. And much of the evidence as to misconduct stressed by
the majority is of a vague and general nature not related to specific
individuals. Thus, the evidence concerning the severing of telephone•
wires, the hurling of dynamite at an electric substation, and the firing
of bullets at plant windows is merely that such incidents occurred on
certain evenings during the strike; the evidence does not attribute the
acts to any identified individual or connect it with the picket line.
The evidence as to nails being thrown on roadways likewise does not
link the conduct to any named individual. As to the Trial Examiner's
surmise, incorrectly treated by the majority as a finding based on evi-
dence, that some picketing employees might have been happy about
or even had knowledge of violence being contemplated, there is, as the
Trial Examiner himself admits, "no evidence in the record to that
effect." 17
Certain identified outsiders did admit to misconduct: Wallace, busi-
ness manager of another union in the locality, admitted following a
truck and stopping it by driving alongside and then parking in front
of it. Wallace also testified he made the statement to the sheriff
about bringing in seamen from Mobile and shrimpers; there is no
evidence that such persons were brought in or committed violence.
Nellums, husband of a striker, admitted hitting Foreman Udell Noff
for grudge reasons and threatening the Respondent's vice president,
Nicholas, if he walked in the middle of the road. Wallace and Nellums
were not employees of the Respondent or pickets.
The incidents set forth by the majority concerning Organizer
Miley's blocking a truck and "sympathizers" jamming Vice-President
Nicholas' car are based upon the testimony of Nicholas. The Trial
Examiner did not accept Nicholas' testimony in certain other respects,
and the majority adopts this credibility finding in holding that the
Respondent discriminated against employees involved in the "clocks"
incident. In these circumstances it is doubtful that the Trial Ex-
aminer would have credited Nicholas in this instance and that the
17 As the majority decision points out , the Trial Examiner did not set forth details of
any violence which occurred . The Trial Examiner in his Intermediate Report only men-
tioned the acts of violence by unidentified persons discussed above as having occurred;
referred to general rumors concerning threats, and found that "sympathizers " engaged'
in coercive conduct The Trial Examiner did not make findings attributing misconduct
to any identified strikers except attributing egg-throwing to strikers Bush and Renfroe as
discussed below . The Trial Examiner did not recommend denial of reinstatement and
back ' pay to any striker because of misconduct . It was to these findings and recommenda-
tions concerning misconduct that the General Counsel filed no exceptions as the majority
emphasizes . In fact, the General Counsel filed no exceptions in this case.
B. V. D. COMPANY, INC. 1423'
Board is warranted in doing so. On the question of threats to truck-
ers, the record includes only the following evidence : Further testimony-
of Nicholas that on the first 2 days of picketing strikers talked to
drivers "sometimes in a threatening manner" and stated that truckers
would not be able to get shipments into the plant; and hearsay evi-
dence from the reports of the Respondent's plant manager to the Re-
spondent's attorney and hearsay evidence of Nicholas as to what a
trucker had told him and, in another instance, as to what a trucker's
employer had told him. As to the stopping of trucks by pickets, the-
record contains the testimony of several employees who picketed that
they waved down trucks, including Railway Express and mail trucks,,
and asked the drivers not to cross the picket line. One woman picket
testified that she took the license tag number of a truckdriver "to scare-
him a little bit." Several picket signs bore markings concerning
license numbers of vehicles.
Concerning statements made on the picket line, Vice-President
Nicholas and Plant Manager Boyle testified that the day the strike.
began unidentified pickets told nonstrikers that they would not get in
the plant the next day. Similarly nonstriker Scraggs testified "girls`
had said "we'd go in, we wouldn't come out" ; and nonstriker Verbeck
testified that striker Cranford told her on April 22 if she went in
the plant after lunch, she would not go back the next morning. Em-
ployee Beasley admitted saying on the picket line that she "would
like to get [her] hands" on nonstriker Scraggs; and Scraggs testified,
employees Beasley and Bullock said on the picket line that they were
going to have help from other unions and "we would not be allowed-
to work." Beasley admitted telling girls passing through the picket
line "that we had outside help. Other people from other crafts were
there to help us." The record also shows that some identified pickets.
shouted appellations such as "scabs," "cowards," and "yellow-livered
cowards" at nonstrikers. Finally, the evidence shows that strikers
Bush and Renfroe, Organizer Miley, and unidentified women threw
eggs from a cafe, across the highway, at nonstrikers waiting at a _
bus stop.
In summary, then, the reliable evidence in this record shows mis-
conduct by unidentified individuals and by outsiders Wallace and_
Nellums and egg throwing by strikers Bush and Renfroe and Or-
ganizer Miley. The only acts complained of which are shown to have
occurred on the picket line are the ambiguous remarks by Beasley,,
Cranford, and Bullock to nonstrikers, which do not constitute threats.
to engage in violence or to procure violent conduct by others; the
waving down of trucks by pickets in an effort to persuade the drivers
to'honor the picket line; the carrying of picket signs with markings
concerning license numbers; and name-calling by several 'pickets,,
which the Board has previously recognized as traditional picket line
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
behaviour rather than culpable misconduct. The Trial Examiner
found that all employees involved credibly denied any participation
in violence and misconduct connected with the strike. One picket
testified that the pickets had been instructed by the union organizer
to keep nonstrikers and trucks out if they could by talking to them
but not by force. The local sheriff, whose testimony in this proceed-
ing the Trial Examiner credited, testified in the State injunction pro-
ceedings that he knew of no violence by the pickets on April 22 and
that he did not make any arrests on the picket line, and that after the
injunction was served, everything was peaceable and normal as far
as he knew. Finally, in retaining a proper perspective of the mis-
conduct presented by the record and evaluating the alleged threats
made by pickets we must not overlook the fact that the strikers were
female employees, led by a female organizer. They maintained a
picket line for 4 months, from April to August, and during that time
no nonstriker was stopped from crossing the picket line and relatively
few ."incidents" even suggestive of threats occurred on the picket
line. Moreover, the Respondent itself has condoned the strikers'
connection with the conduct it now complains of by recalling substan-
tially all the strikers under the settlement arrangement; and it ob-
viously did not consider the strikers unemployable because of the
misconduct which occurred during the strike. My colleagues in the
majority fail to explain why the well-established doctrine of con-
donation is not applicable to this case.
With excessive emphasis upon the evidence of misconduct outlined
above, the members of the majority adopt a new policy and deny
reinstatement and back pay to all employees who picketed during the
strike, whether or not the individual employees are shown to have
engaged in misconduct, because of the censurable acts of a few strik-
ers, outsiders, and unidentified persons. This harsh policy of im-
puting the guilt of others to innocent strikers is directly contrary to
Board and court precedent which the majority chooses to ignore.18
Circuit courts of appeal have consistently held that acts of some strik-
ers cannot be ascribed to all and that misconduct of certain employees
is not to be charged to others in the absence of proof identifying the
others as participating in such misconduct." The rulings are ex-
plicit. The Court of Appeals for the Seventh Circuit in so holding
has observed : "Certainly all the employees should not be deprived of
See N. L. R. B. v . Crowley's Milk Co. Inc., 208 F. 2d 444, 446 ( C. A. 3).
18 N. L. R. B. v. Cambria Clay Products Co., 215 F. 2d 48, 53 ( C. A. 6) ; N. L R. B. v.
Wallick et al, 198 F. 2d 477, 485 ( C A. 3) , N L R B v Deena Artware Inc, 198 F. 2d
645, 652 ( C A 6), cert denied 345 U. S. 906 ; N. L. R. B . v. Mt. Clemens Pottery Co., 147
F. 2d 262 , 268 (C. A . 6) ; N L R. B, v. Ohio Calcium Co ., 133 F. 2d 721 , 726 (C A. 6) ;
N. L. R. B. v. Quality and Service Laundry, 131 F 2d 182 , 183 (C . A. 4), cert denied 318
U. S. 775 ; N. L. R B . v. Stackyole Carbon Co ., 105 F. 2d 167 , 176-177 (C. A. 3), cert.
denied 308 U. S. 605.
B. V. D. COMPANY, INC. 1425
the benefits of the Act because certain undisclosed ones forfeited
their rights." 20
Despite this authority that misconduct cannot be imputed to indi-
vidual strikers who did not participate in or actually ratify such con-
duct, the majority attempts to fix responsibility for all the miscon-
duct on all strikers who picketed on the theory that by continuing to
picket after the misconduct occurred, the strikers "approved" and
"ratified" the misconduct. Apart from the inapplicability of such an
agency concept in the light of judicial holdings to the contrary, I find
no warrant in the rules of agency for the majority's theory. Agency
by ratification must be established by a preponderance of the evidence;
and authority to do illegal or tortious acts is not readily inferred 21
The facts of this situation clearly do not meet the requirements of
the doctrine of ratification. The participants in the misconduct, often
unidentified, did not purport to act for the nonparticipating individ-
uals. The so-called "benefits" of the misconduct were forced upon the
nonparticipants and were impossible to reject. There is nothing to
show that the nonoffending strikers intended by their continued
picketing to approve the misconduct. 22 Application of such a dis-
torted view of ratification as that the majority here uses could result
in the ridiculous situation of a strikebreaker hired by an employer
being found an agent of individual strikers.
The lack of precedent for the majority's theory that innocent indi-
viduals who participate in a lawful strike are responsible for the mis-
conduct of other individuals during the strike, and the technical de-
fects of the majority's theory of agency negate the majority's posi-
tion that individual strikers who did not engage in misconduct are re-
quired to take action to disavow the misconduct of others or be held
to have ratified the conduct. In addition, it is difficult to see as a prac-
tical matter what effective action individual strikers could have taken
to stop or repudiate the misconduct as the majority says they should
20 Stewart Die Casting Con p. v. N. L R . B., 114 F. 2d 849 , 856, cert denied 312 U. S.
680
21 Mecham , Outlines of the Law of Agency , section 141 ( 3d ed , 1923 ) ; Restatement
Agency, section 34 (1933)
22 See Restatement , sections 85 and 98; Mecham, sections 120, 134, 142, and 148
Compare the Board 's refusal on even stronger facts to imply an agency relationship to
find employers responsible for the antiunion conduct of a citizens ' committee or an em-
ployees ' committee * Livingston Shirt Corporation , et al, 107 NLRB 400 ; Petroleum
Carriers, Inc., 109 NLRB 495. In the Livingston case members of the citizens ' committee
which engaged in it campaign warning employees of the likelihood the plant would close
if the union was successful in an election, had lent money for construction of the plant
and prominently attended an antiunion preelection speech of the employer , the employer
knew antiunion handbills were being distributed at its plant entrance ; and after the union
lost the election the employer placed an advertisement in the local newspaper thanking
the townspeople for their "cooperation" during the campaign period. In the Petroleum
case , the group of employees from another location which sought to persuade employees
to reject the union and join with them in the organization of a "committee " first went to
the office of the employers ' general manager and informed him of their plan ; the general
manager approved their suggestion.
338207-55-vol. 110-91
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have done. How could these women employees have stopped unknown
persons who bombed an electric substation or put some bullet holes
in plant windows at night? And the individual strikers had no au-
bility to administer the Act so as to promote industrial peace. Ancl
majority does not go so far as to assume such authority and the rec-
ord would not support such an assumption. The majority opinion,
however, in concluding that strikers who continued to picket approved
and "invited" violence, suggests that the strikers could have dis-
avowed the misconduct by abandoning their picketing. My majority
colleagues thereby impose upon innocent strikers confronted with any
signs of misconduct, even that of unknown persons, the choice of
abandoning their right to reinstatement to their jobs or abandoning
their right to strike and peacefully picket in support of their strike.
The Act offers no justification for requiring strikers to make such a
choice. The majority adds, however, that abandonment of picketing
was not the only way the strikers could have disavowed the violence-
they could have done so by "admonishment, denunciation or public
pronouncement," absent which, the majority says, the strikers are
deemed to have "actually invited" the violence. From the practical
standpoint this gets more and more unrealistic. How does one "ad-
monish" unknown wrongdoers? What form must "denunciation"
take? Are individual statements adequate or is a formal resolution,
necessary? Does "public pronouncement" mean the strikers must buy
a full page ad in the newspaper? Moreover, let us not forget that the
strikers here were not formally organized into an established union.
They were an amorphous group of female employees in the early
stages of exercising their right to self-organization, led by a female'
organizer for the union, resisting their employer's unfair labor prac-
tices. From the practical standpoint one could not expect what the
majority now requires; from the legal standpoint, shifting the burden
to all the strikers of policing the lawless conduct of unknown indi-
viduals as the majority here does, is inconsistent with existing judi-
cial authority.
The inequity of holding guiltless strikers answerable for miscon-
duct in which they did not participate is obvious. Moreover, denyin-
reinstatement and back pay to innocent strikers conflicts with Section
13 of the Act which recognizes the right to strike. Under the ma-
jority's decision employees now strike under the peril of losing their
jobs because of the uncontrollable action of hotheads or trouble-
makers. The subjection of strikers to this risk seriously curtails em-
ployees' protection under the Act and renders ineffective the provisions
of Section 13. There is no warrant for so impairing the right to-
strike. The turbulence and disorder which not infrequently accom-
pany strikes was known to Congress when it originally enacted the-.
B. V. D. COMPANY, INC. 1427
provision preserving the right to strike and when it reenacted the
provision in 1947 in the light of existing judicial construction 13
Like my colleagues, I am profoundly aware of this Board's responsi-
bility to administer the Act so as to promote industrial peace. And
I do not question the authority of the Board to fashion a remedial
order, in the light of all the circumstances of a case, that will best
effectuate the policies of the Act. I do question the manner in which
the members of the majority have exercised that authority in this case
because they have chosen to disregard legal principles well established
not only in Board but court decisions concerning imputation of re-
sponsibility for misconduct to innocent strikers, and concerning
condonation. I am convinced that the decision to withhold a remedy
from victims of discrimination who did not engage in misconduct
does not encourage industrial peace. In their admirable zeal to con-
demn violence my majority colleagues have not, I fear, given sufficient
emphasis to certain important considerations. First of all, the policy
they here adopt is not required to protect the public welfare or deter
violence. Existing measures are directed to those ends. Section 8
(a) (1) of the Act proscribes violence by employers ; 24 Section 8 (b)
(1) of the Act bans violence by labor organizations; 25 Board and
court rulings caution employees to control their behaviour by denying
remedial rights under the Act to actual participants and their abetters
in misconduct; criminal laws and policy regulations govern the violent
conduct of individuals.
Moreover, the new policy of denying a remedy to nonoffending
strikers may, rather than restrain strife, actually encourage it. The
effect of unfair labor practices which prompt employees to strike are
left unremedied by such a policy and remain to stimulate renewed
dissatisfaction. And the failure to order reinstatement and back pay
to innocent strikers because of misconduct for which they are not
responsible tends to arouse feelings of injustice among employees
which serve as new cause for unrest and discord. Furthermore, the
policy of removing all strikers from the protection of the Act when
any significant misconduct occurs during a strike invites provocative
conduct by unprincipled employers, unscrupulous competing labor
organizations, and intemperate antiunion outsiders, mercenaries, or
others desirous of stimulating dissension and destroying the demo-
cratic process of collective bargaining. The role of the agent pro-
vocateur is too well established in our industrial history to be ignored,
23 See Republic Steel Corp. v. N. L R B, 107 F. 2d 472, 479 (C. A. 3), cert. denied 309
U. S 684
zi See, for example , Anchor Rome Mills, Inc., 86 NLRB 1120 , 1184, where the Board
found that an employer engaged in interference, restraint, and coercion when its respon-
sible officials encouraged armed nonstrikers in an assault against pickets
zs See, for example, The Englander Company, Inc., 108 NLRB 38, where the Board
found that a labor organization engaged in restraint and coercion when its agents as-
saulted an employee who opposed the organization.
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
being recognized by the Board, the courts, and congressional
committee 26
More fundamentally, the plain way to obviate disorder and effec-
tuate the policies of the Act is to prevent and remedy the unfair labor
practices which produced the strike out of which disorder arose. This
Act was designed to apply to areas of industrial conflict, not to he
withdrawn from them. Congress has determined that industrial strife
can be lessened and friendly adjustment of disputes encouraged by
the banning of certain unfair practices of employers and labor organ-
izations and by the recognition of certain employee rights including
the right to organize and to strike. The Board is concerned in this
proceeding, not with deciding private rights of employer and em-
ployee, but with carrying out in the public interest that congressional
mandate to remedy unfair labor practices and protect employee rights.
As I see it, the majority decision does neither. The decision impairs
much of the remedial force of the Act and deprives blameless em-
ployees of their rights under the Act. It substitutes for the legisla-
tively determined means of promoting industrial peace an ineffective
administrative measure which has no basis in statutory, judicial, or
practical considerations. I cannot join in such a decision.
MEMBER PETERSON, dissenting in part :
For substantially the same reasons as impel Member Murdock to
dissent, I also do not join in the majority's decision to withhold rein-
statement and back pay from the discharged employees and strikers
who are guilty of no misconduct. While I doubt that my majority col-
leagues are establishing a new policy, it seems clear to me that they
are misapplying our existing policy. None of us condones violence,
nor would I advocate any particular type of remedial action if I
thought that violence or disregard for law and order would thereby
be encouraged. Because I think our usual remedial order would not
have that effect here, I would issue it; nonetheless, I think our differ-
ences stem primarily from our separate appraisals of the evidence and
our individual notions of sound policy.
26 See Remington Rand Inc, 2 NLRB 626, 649, 735, Great Northern Ry. Co v Brosseau,
286 Fed. 414, 418 (D, N D, 1923) ; Sen Rep. No. 6, part 1, 76th Cong, 1st Sess, par-
ticularly pp. 97-110, 136 and 137 (1939), where the Senate Committee on Education and
Labor concludes that: "In some cases employers have directed detective agencies to per-
form acts of violence , or have instigated such acts, or have made their commission inevi-
table . This has been done either to discredit strikers because of such acts , to break their
morale by the use of physical force, or to create a disorderly situation of such proportions
that the armed intervention of the State will be required to suppress it."
Appendix
NOTICE TO ALL EMPLOYEES
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, we hereby notify our employees that :
B. V. D. COMPANY, INC . 1429
WE WILL NOT discourage membership in International Ladies'
Garment Workers Union, AFL, or any other labor organization of
our employees, by discharging or refusing to reinstate any of our
employees or in any other manner discriminating in regard to their
hire or tenure of employment, or any term or condition of their
employment.
WE WILL NOT threaten our employees with loss of employment
because of their union activity or prohibit employees from union
solicitation and discussion on company property during their non-
working time.
WE WILL NOT interrogate employees concerning their member-
ship in, or activities on behalf of, International Ladies' Garment
Workers Union, AFL, or any other labor organization, in a man-
ner constituting interference, restraint, or coercion in violation
of Section 8 (a) (1).
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organiza-
tion, to form labor organizations, to join or assist International
Ladies' Garment Workers Union, AFL, or any other labor or-
ganization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection,
and to refrain from any or all of such activities, except to the extent
that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as
authorized in Section 8 (a) (3) of the said Act.
WE WILL offer to any of the employees named below who have
not already been so offered immediate and full reinstatement to
their former or substantially equivalent positions without preju-
dice to any seniority or other rights and privileges previously
enjoyed by them, and we will make them whole for any loss of
pay suffered as a result of the discrimination against them :
Mattie Couch
Bernice Gunter
Rose Herndon
Nellie Rouse
Rose Furby
Lulu Mae Elam
Mildred Burchfield
B. V. D. COMPANY, INC.,
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.
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon duly filed charges by international Ladies' Garment Workers Union, AFL,
herein called the Union, the General Counsel of the National Labor Relations Board,
herein called the General Counsel and the Board, respectively, by the Regional
Director for the Fifteenth Region (New Orleans), issued a complaint dated August 5,
1952, against the B. V. D. Company, Inc., herein called the Respondent, alleging
that Respondent had 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 National Labor Relations Act, as amended, herein called the Act.
With respect to the unfair. labor practices, the complaint as amended at the hearing
alleges in substance that Respondent: (1) Interrogated and questioned its employees
about their union activities and sympathies; (2) threatened its employees with eco-
nomic reprisal if they continued their support of the Union; (3) offered its employees
economic benefits for deserting the union cause; (4) forebade union discussion on
company property during free time; (5) circulated a petition or letter among its
employees to encourage hostility to the.Union; (6) called and attended meetings to
encourage its employees to demand an election to determine whether they wanted
a union ; and (7) financed an employee demonstration against the Union while it was
on strike.
The complaint alleges that Respondent terminated the employment of various
employees i because of their union activities and has failed and refuses to reinstate
them and that Respondent also discriminatorily refuses to reinstate as requested by
them various employees 2 who participated in an unfair labor practice strike against
Respondent.
In its amended answer Respondent denies that it engaged in or is engaging in any
unfair labor practices.
Pursuant to notice, a hearing was held at Pascagoula, Mississippi, on various dates
from August 19, 1952, to October 3, 1952. All parties were represented at the hear-
ing,3 were afforded full opportunity to be heard, to examine and cross -examine wit-
nesses, to introduce evidence, to argue orally upon the record, and to file briefs. A
brief has been received from Respondent.
At the beginning of the hearing, Respondent moved: (1) That the complaint be
remanded to the General Counsel for further investigation; 4 (2) for a 48-hour con-
tinuance for preparation; (3) for a bill of particulars; and (4) that the complaint
be made more definite and certain. The motions for the bill of particulars and the
48-hour continuance were granted in part; the others denied.
Several motions were made by Respondent at the end of the General Counsel's
case-in-chief and renewed at the end of the hearing to dismiss the entire complaint
and portions thereof. The following allegations were dismissed, rulings on the re-
mainder being disposed of herein, that Respondent: (1) Discriminatorily discharged
William V. Vice; (2) discriminatorily discharged Vickie Bowman; (3) inquired of
prospective employees whether or not they had previously been employed by em-
ployers having unions in their plants; (4) solicited strikers to return to work by offer-
ing them higher wages; (5) circulated an antiunion letter or petition among its em-
ployees; and (6) initiated and financed an employee demonstration against the Union
during its strike.
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
Respondent, B. V. D. Company, Inc., is a Delaware corporation engaged in the
manufacture of "T" shirts, boxer shorts, and other garments. Its principal office is
located in New York City, and it operates plants in various parts of the United States,
1 The names of the employees and the dates of their alleged terminations appear in
Appendix A.
$ The names of these employees appear in Appendix B.
$ Although entering an appearance, the union representative was absent most of the
hearing.
4 Respondent contends that the investigation of the case was improperly and unfairly
conducted, and that the allegations of the complaint were not consonant with what officials
of the Fifteenth Region had led Respondent to believe they would be.
B. V. D. COMPANY, INC. 1431
including the States of Ohio and Mississippi. In the latter State it operates a plant at
Pascagoula, which manufactures "T" shirts and other garments.
During the conduct of the operations at the Pascagoula plant during the 12 months
preceding the hearing, Respondent purchased in excess of $100,000 worth of mate-
rial, including cotton yarns, worsted yarns, rayon, and piece goods, more than 90
percent of which was shipped to it from and through States other than the State of
Mississippi. During the same period, Respondent processed, sold, and distributed
in excess of $500,000 worth of its finished products, more that 90 percent of which
was shipped from its Pascagoula, Mississippi, plant to and through States of the
United States other than the State of Mississippi.
Respondent does not deny that it is engaged in commerce within the meaning of
the Act. I find Respondent so engaged.
II. THE LABOR ORGANIZATION INVOLVED
International Ladies' Garment Workers Union, AFL, is a labor organization
within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary statement and theories of the case
The issues in this case are relatively simple in the abstract. Early in 1952 (all
events occurred in 1952 unless otherwise noted), an organization campaign was un-
dertaken by the Union at Respondent's Pascagoula, Mississippi, plant, which is the
sole subject of this proceeding. At a union meeting on April 21, it was decided that
a volunteer committee of employees, uncertain and unlimited in number, would go
to Dimitri Nicholas, Respondent's vice president, the next day during working hours
to discuss with him recognition of the Union and the rehiring of former employees
of the plant in preference to employees without previous experience in the plant.5
Promptly at 10 a. m. on April 22, approximately 23 employees 6 left their duty
stations and proceeded to the lobby at the plant entrance, which adjoins the business
offices including that of Nicholas? There, according to plan, they met Ruth Miley,
the union organizer, and confronted Nicholas with their request for an audience.
Except for a few individual allegations of discrimination, interference, restraint, and
coercion both before and after April 22, what took place between Nicholas and the
employees' committee in a few minutes on this April 22 at the clocks is the main
issue in the case.
The General Counsel's evidence in substance is that when the employees made
their request to Nicholas for the conference, they were summarily discharged. The
substance of Respondent's evidence is that the employees were several times requested
and given the opportunity either to return to work or punch their cards and get out
before their failure to do either resulted in their cards being punched for them.
The clocks' incident, the union meeting of the previous night, the picketing that
followed, and the events surrounding the picketing took the major portion of 5 weeks
to litigate. This was due in some measure to the Respondent's contentions that the
pickets had conspired to engage in violence and acts of intimidation and coercion
during the course of the picketing which, except for about 3 weeks of a temporary
injunction , lasted from April 22 to the middle of August; and also that the testimony
of the General Counsel's witnesses about the incident of April 22 and surrounding
events was largely fabricated and patent perjury.
Respondent also contends inter alia that the only purpose of the committee was
to seek Respondent's recognition of the Union as bargaining agent of all the em-
ployees. Since the Union did not represent a majority of the employees, it is Re-
5 The plant had been operated for a number of years in garment manufacture by various
managements. It had only been since the fall of 1951, however, that it had been under
the management and name of Respondent. It appears that a large number of employees
had worked for the various managements from the beginning and that Respondent relies
largely on the same labor force as its predecessors
6 Of the 23 discharged, 2 employees, Lena May and Gladys Scovel, testified they did not
participate in the clocks' incident. Their cases will be treated separately.
The employee time clocks were located adjacent to the lobby in an aisle about 20 feet
wide leading into the mill. Some of the girls got no farther than the passageways that
these clocks formed in that aisle Since this incident was referred to as the "clocks"
incident throughout the hearing, I will use that identification of it from time to time in
this report.
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's position apparently that such a purpose does not constitute the type of
concerted activity which the Act protects.
Another contention of Respondent is that the committee's action of seeking an
audience with top management without making an appointment through their im-
mediate supervisors violated plant procedure and for that reason amounted to
misconduct.
The General Counsel's position is that if his witnesses are believed, the Respond-
ent has clearly discriminated against the employees of the committee. In the alter-
native, the General Counsel contends 'that even if the Respondent's version of the
April 22 incident is credited, there is sound precedent for holding that Respondent's
action regarding these employees was discriminatory and violative of the Act.
One aspect of the case bearing on the testimony elicited should be mentioned.
About 3 months prior to the Board hearing, the case was the subject of about 2
weeks of court litigation in Pascagoula, in connection with an injunction proceeding
against the Union. Considering the small size of the community and the fact that
the National Guard had been called on the scene, it is obvious that local interest in the
matter must have been extremely high. A large proportion if not a majority of the
witnesses in that proceeding testified in the hearing before me, apparently going
over a great deal of the same material in both hearings. When questioned about
discussing the case with other witnesses, one witness forthrightly answered, "This
thing has been discussed and discussed by everybody that would discuss it." And
that must have included practically everybody in Pascagoula.
To what extent these discussions may have developed by repetition or mass sug-
gestion fixations as to any of the facts is hard to guess. One thing, however, is
painfully clear. There is a sharp conflict in the testimony between the General
Counsel's witnesses and those of the Respondent on practically every issue in the
case, including physical facts as well as metaphysical.
In resolving these conflicts, I shall not attempt to analyze here the testimony word
for word or witness by witness. During the course of the hearing from my observa-
tion of the witnesses, and in my study of the record, I developed convictions as to
where the substantial truth lies. In making these resolutions, I am mindful of the
discussion and reiteration the facets of the case must have had. I am also aware
of the deficiencies and discrepancies in the testimony of some of the witnesses, and
at times their evasiveness and lack of candor. However, the testimony of others
of the witnesses, both the manner in which they testified and what they said, in
my opinion, stands out for its candid, outspoken qualities, unshaken by vigorous and
grueling cross-examination.8
B. The clocks ' incident of April 22
1. The circumstances
Fourteen of the General Counsel's witnesses testified about the clocks' incident
before I ruled, over Respondent's objection, that I would receive no further evidence
from the General Counsel's witnesses on the matter, on the grounds that it would
be cumulative. The General Counsel's testimony, in substance,9 was that at the
union meeting the night before, it was decided that a committee of the employees
desiring to participate would go to Nicholas the next morning at 10 a. m. to dis-
cuss recognition and the question of hiring preference for former employees of the
plant. A showing of hands for volunteers was asked. Ruth Miley, the union or-
ganizer, agreed to meet them at the plant lobby and to speak for them. In the event
she was not permitted to do so, one of the employees, Bessie Bush, was to do the
talking. Several of the employees who had not attended the meeting were informed
8 Examples of this type of witness were Mildred Burchfield and Louise Peden whose
calm, forthright attitude on the stand was indicative of great reliability . Also highly re-
liable and articulate were Clara Davidson, Inez Reeves, and Lucy Heflin No comment
is needed on the testimony of Lena May upon which I place little credence
s Far from being of a pattern indicative of a fabricated and memorized recital, the tes-
timony of these witnesses has numerous variations regarding what was said and the se-
quence of remarks Statements or circumstances testified to by some were not remem-
bered by others There is unequivocal unanimity, however, in the General Counsel 's testi-
mony that no suggestion, order, or opportunity was voiced by Nicholas that the employees
return to their machines. I ani setting forth the General Counsel's testimony on this
incident as a composite In so doing, I am reflecting the essential aspects and general
tenor of the General Counsel's evidence.
B. V. D. COMPANY, INC. 1433
about the plan the next morning and asked if they wanted to participate. Some did,
some did not.
At the agreed time, the employees left their machines (shutting them off) and
their work tables and proceeded in an orderly manner to the rendezvous. At this
time, Nicholas, having been asked for at the lobby by Miley, came to the lobby from
the plant, walking between the time clocks into the lobby where Miley was sitting.
Some of the employees were already there, were arriving on the scene simultaneously
with Nicholas, or arrived shortly after he did.10 Miley rose to greet him, introduc-
ing herself as a representative of the Union. Nicholas commented that she couldn't
be with a finer organization. Miley then told Nicholas that a committee of her
girls and his girls wanted to talk to him. Nicholas turned toward the group and
asked, "Is this your committee?" Miley answered that it was. His face becoming
flushed and raising his voice in anger, Nicholas said, "Well, I tell you what they can
do. You can punch your cards and get out ." Miley protested , "Mr. Nicholas, you
can't fire those girls like that. It's against the law." Nicholas said "If you had
come to me in a nice way I would have talked to you." 11
One or two of the employees then asked Nicholas, do you mean you're
firing us for union activities?" Nicholas retorted, "You heard what I said. Punch
your cards and get out the damned door. You're fired." 12
Apparently at this point, someone asked Miley if they had to punch their cards.
She replied that they did not; that if they were fired they did not have to punch their
cards in order to be paid. Nicholas then ordered the payroll clerk, Seaman, to punch
the girls' cards for them. She protested that she did not know their names, where-
upon it was agreed between Seaman and Nicholas that Seaman would know at noon
by the unpunched lunch hour cards, at which time she could punch them.
One or two of the employees asked Nicholas if they could go back into the plant
and get their personal belongings. Nicholas replied, "Yes, please do." Several
did, some testifying that when they got back to the lobby the girls were already out-
side. Inez Reeves, however, testified that she returned immediately and found some
of the girls were still standing in the lobby talking.13 Miley was saying that if they
were fired they did not have to punch their cards. Apparently, they then left the
plant at which time they began picketing.
The estimates of the witnesses as to the length of time consumed for the entire
incident range from 2 to 3 minutes to not over 10 minutes. There was testimony
by some that Nicholas was shouting and waving his arms, that he gritted his teeth,
and became red with anger until the blood vessels stood out on his forehead percepti-
bly. Admittedly, no attempt had been made to make an appointment with Nicholas.
Several of the General Counsel's witnesses testified that had they been given the op-
portunity to go back to work they would have done so. This testimony came out
not in answer to a direct question, but on cross-examination as spontaneous explana-
tions connected with their denials that they had been requested or given the oppor-
tunity to go back to work.
It appears from Respondent's testimony that an hour or two before Miley arrived
at the plant on April 22, Louise Roberts, assistant payroll clerk, had been informed
by another employee of Miley's impending visit and ". . . that a bunch of the girls
were going out at 10:00 that morning to organize a union. .. Before either
Nicholas or Plant Manager Boyle arrived, Roberts passed this information on to
Seaman. Having heard such rumors before and not believing this one, the latter
did not report it to Nicholas or Boyle.
According to Nicholas' direct testimony, at about 10 a. in. he was in the trim-
ming department when he got a call from the office informing him, "There's a lady
here to see you," to which he replied, "Well, that's nice. I'll be in as soon as I can."
He then started slowly up the main aisle of the mill toward the lobby when he saw
Seaman coming toward him, motioning him to come up. He motioned to her that
10 Several witnesses testified that as they were proceeding up the main aisle of the plant
Nicholas, walking in the same direction, passed them, went beyond the aisle to the clocks
a few steps, Caine back, and proceeded to the lobby a moment after they turned into it.
11 Only 1 of the General Counsel's witnesses, Clara Davidson, testified to this remark
on direct examination, although 1 or 2 others testified on cross-examination that they
believed Nicholas made some such remark
11 Some of the witnesses testified that Nicholas prefaced this remark with the word
"yes " In my opinion, the statement is as valid as an admission with or without the
affirmation.
13 Reeves' job at the time apparently was boxing "T" shirts, which section was no more
than 150 feet from the lobby, as revealed by a floor plan of the plant received in evidence.
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he was coming , whereupon she turned back to the office, and he quickened his pace.
As he turned into the aisle leading to the clocks and the lobby, he noticed behind him
a "number of girls had risen to their feet; they were moving their arms" motioning
to other employees. This was the first time he noticed any of the "clocks" incident
activity on the part of anyone. Ahead of him, he observed about 5 girls standing
near the clocks and 3 strangers sitting in the lobby. As he approached, Miley arose.
After mutual introductions and Nicholas' remark that Miley couldn't be with a finer
organization , his testimony was as follows:
I said, "Well, now what can I do for you?" She said to me. "You can't do
very much for me. The girls-some of my girls and some of your girls want
to speak to you."
And I said to her, "Well, what is this all about?" and she said, "Well, it's not
for me to tell you. They'll tell you."
I said, "I'm busy, and I'd certainly like to know what I am standing here
for, or what I'm doing."
And she says, "Well, this committee will tell you. They want to talk to you."
So I turned around, standing right next to her, and I looked toward the time
clocks, the direction in which she was facing, and I saw that a group of girls
had congregated around the clocks, and just slightly in front of the clocks. I
have since come to find out that there were 23 or 24 of them, but at that time
I didn't know how many there were.
I looked at these girls and I looked at Mrs. Miley, and I turned to the girls
and I said to them, "Now, listen, girls, 1 have got a lot of work to do, and
I'm very busy. I'm an employee of this company, just the way you are. I've
got production to get out, and I've work to do. Now go back to your machines
and go back to work."
And Mrs. Miley interrupted me at this point and she says, "You don't have
to go any place." And-oh, prior to that incident, incidentally, while I was
speaking to Mrs. Miley, I said to her, "Well, this is a very peculiar way to come
and see me. If you would have arranged an appointment with me I would
have been very glad to discuss anything with you."
And she didn't answer that.
Then, as I was speaking to the girls and told them to go back to work, she
interrupted me and said, over my voice, she shouted to me, "You don't have
to go any place." And I looked at the girls and I said, "Girls, now there is a
right way and a wrong way to come to see me, and you know it. And there
is a right time and a nice way to go about these things. This is neither the
right time nor the nice way. Now go back to your machines and go to work."
And she says, "You don't have to go any place. He's going to talk to you.
He has to talk to you."
And I says, "Well, look, I am still running the business," and I looked at
Miss Miley, and then I looked at the girls, "And I'm not taking orders from
anyone. I'm requesting that you go back to your machines and you go to work
and cut this thing out and let's go back and do what we had to do."
And I said, "If you are not going to do that, then punch your time cards
and leave the mill."
And she says, "You don't have to punch your time cards. He's going to
pay you anyway. He can't fire you. The law doesn't allow him to fire you."
And she started to give me a general dissertation on the law of the thing
Q. Tell us what she said, please.
A. Well, she said, "He has no right to fire you; he has to talk to you, there's
a National Labor Relations Board," or something to that effect, "and he's going
to pay you, and he has to pay you and you don't have to punch your cards."
So I told the girls again , I said, "Now either you go back to your machines
and you go to work or you punch your cards and you go out."
And they just stood there, and they were talking and everybody was talking,
and there was a general commotion going in the place. And when nothing
happened, I turned to them again, I said, "Now, if you are not going to go
back to work, then I'm going to have your cards punched for you and you are
not going to punch your cards, I'm going to have them punched for you."
And I turned to Birdie Seaman , who was standing just in the lobby at the
entrance to the main office, and I said, "Birdie, punch these girls out if they
are not going back to work."
She said, "Mr. Nicholas, I don't know who these girls are. I could punch
them out at lunch time, if that would be all right."
B. V. D. COMPANY, INC. 1435
I said, "That's fine. In other words, anybody who doesn't go back to work
and who leaves the mill, at lunch time any cards that are not punched, you
pull them and punch them and give me a list of the names."
And with that I walked away from the group and I started to walk past
Birdie Seaman into the main office, and the girls, some of them were laughing
and joking, and Mrs. Miley was still talking, and I just walked away from
them, and I don't know what she said, but she did say something, and then
they walked outside.
Nicholas further testified in response to a question as to whether he raised his
voice in speaking to the girls, "Well, I had to because they were about 10 to 12
feet away from the two of us, and when I turned to them and they were talking
among themselves, I raised my voice to the point that I thought necessary to be
heard."
On cross-examination, Nicholas testified that when he observed the girls getting
up from their machines "there was a general commotion going on," that the girls
were calling to others. Seeing all this, however, he did not stop to question about
it nor did he give "the matter a heck of a lot of thought." "This might be hard
for you to understand," he testified, "but I wasn't concerned; I just walked straight
ahead. I didn't know what was happening, and I didn't think long enough to make
up my mind"; and further, "It was one of those incidents, I didn't give it any thought
at all." Agreeing that he in the injunction proceeding had described the incident
as a commotion which was not proper and upon which he thought he had legal
rights, he testified, ". . . the only time it really struck me, the impact of the thing
hit me, was after I started to speak to Mrs. Miley. Then I realized what I had
seen." He further testified that he did not have the slightest idea who wanted
to see him at the lobby; that when he first turned to address the girls his exact
words were, "I'm running a business here. I'm not running a Boy Scout Camp.
I've got a lot of work to do. I'm an employee of this company. I've got a produc-
tion to get out, and I expect you to go back to your machines and go to work."
He further testified on cross-examination that he "wouldn't say they [the girls]
weren't paying any attention," but "a few in the back might have been talking with
each other, that generally speaking I'd say they were listening to what I had to say";
that even when Miley interrupted him to countermand his second request that the
girls go back to work he was not getting "a little peeved"; that Miley countermanded
everything he said and he "was neither in the mood nor in the feeling of having an
argument with her or a discussion with her as to who was going to say what." After
he told Seaman to punch the cards and started into the office, he "had nothing else
to say." He had repeated [himself] like a broken record. Nothing had happened,
and [he] didn't know if anything was going to happen, and [he] felt a little ridiculous
standing there giving an order that nobody was paying any attention to." He also
testified that at no time during the incident did anyone in the group except Miley
address any remarks or questions to him, nor did anyone seek permission to go back
and get personal belongings.
Obviously, the shorter the time element that is established on this incident, the
more it tends to support the General Counsel's version. It is also obvious that esti-
mates of the passage of time in an incident such as this, dramatic and emotional
as it was, may be quite erratic. In this connection, an objective basis of measure-
ment appears from the testimony of Respondent's witness, Plant Manager Boyle.
Boyle testified that he was in the shipping department going over some work with
employees at 10 o'clock, when someone informed him that a union lady was in the
lobby asking for Nicholas. Asked if he went right up to the lobby, he testified, "Yes,
I finished up whatever I was doing and went right up to the lobby to see what was
going on." While there is nothing in the record to show what Boyle was doing
or how long it took him to finish it before he went to the lobby, the tenor of the
testimony is that he went to the lobby practically immediately upon learning of
Miley's presence. Surely, if his purpose was to see what was going on, he would
have delayed but momentarily. As he approached at the left side of the time clocks
(which were nearest the doorway from the lobby to the offices), he heard Nicholas
saying "something to the effect, `Will you girls please go back to your machines or
punch out?"' Boyle continued to move in toward the offices. When he had arrived
at the dividing line between the lobby and the clocks, no one having spoken to Nicho-
las in the meantime, the latter turned to Seaman, who was standing in the office
doorway, and said, "Birdie, if these girls won't punch their cards out, I want you to
punch them out." She replied she did not know who they were. Nicholas told her,
"Well, whoever is not punched out at lunch time, their cards will be remaining in
the rack; pull those cards." At this point, Nicholas and Boyle went into the office,
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and nothing more was said between management and the committee, the latter
leaving the plant. By Boyle's own admission, he arrived at the clocks at the very
end of the incident.
The blueprint of the plant floor plan received in evidence shows that the entrance
of the shipping department was located approximately 270 feet (figuring in straight
lines and right angles through the various passage aisles) from the time clocks. On
this basis, utilizing standard army gait of 30-inch paces, 120 per minute, it would
have taken less than a minute for Boyle to have traversed the area between the ship-
ping department and the time clocks. Allowing 30 seconds for Boyle to have disposed
of what he was doing and another 30 seconds for covering any additional walking he
had to do from whatever point he was at in the shipping department, it would appear
that the entire incident may have taken less than 2 minutes.
This is consistent with another significant and objective fact. Only one of the
employees, Lona Pace, punched her own card. That card shows that it was 10:01
a. m. when she punched out.
Repeatedly on cross-examination, the General Counsel's witnesses on the clocks'
incident were confronted with a request to explain the obvious discrepancy in the
time element between what they testified transpired and the time they estimated the
incident involved. Nicholas also was so confronted Here is the testimony:
Q. Probably didn't take any more than a few minutes?
A. I'd say it took about 10 minutes.
Q. You have related most of the conversation, Mr. Nicholas? It certainly
didn't take 10 minutes to tell us all that you told about the things.
A. You say-certainly it makes a big difference if I talk to you rapidly, and
I know what transpired, and I know the facts of the matter, and I am just re-
peating them. But, when I met Mrs. Miley, I took my time in saying "hello"
to her, and I listened to see what organization she was with, and I just didn't
immediately say, "Well, my name is Nicholas. You couldn't be with a finer
organization." I stopped and considered and tried to figure what was going on,
the way you would do.
Nicholas' testimony on the clocks' incident was substantially corroborated by three
people besides Boyle-Roberts, Seaman, and a former office manager of Respondent,
William Nelson. Specifically, they confirmed his testimony that the employees were
told to go back to work before they were requested to punch their cards and leave
the plant; and further that at no stage of the incident did Nicholas appear to be
angry. Both Nelson and Seaman, however, testified, contrary to Nicholas, that
Nicholas did not raise his voice or talk any louder than normally. All three wit-
nesses placed the employees much closer to Nicholas than his testimony did.
Contrary to Nicholas, Seaman testified that Nicholas made no motion to her as
he approached her in the plant; that she waited for him about 50 feet down the
main aisle from the clocks and started to walk back to the lobby with him, but
that he gradually drew ahead of her reaching the lobby before she did.14 She
further testified that at no time when they met and were walking together did she
speak to him or he to her. Explaining why she did not tell him what she wanted
him for, she testified, "I didn't have to talk to him. He had already got the infor-
mation." She also testified that as she turned around and started back to the lobby
she noticed the commotion of the girls in the "T" shirt section getting up from
their machines and motioning to one another, and that she "walked right on by
them." According to her testimony, at no time during her 4 years' employment
in the plant had she ever heard of any union activity in the plant, nor was she
aware of a union campaign involving Respondent.
Concluding Findings
Even in the absence of subsequent relevant statements and actions of Respondent
bearing on this issue, an analysis of the above evidence I feel tends to support the
General Counsel's version rather than Respondent's. It is difficult to believe, for
instance, that although Roberts and Seamen had learned that a union demonstration
was planned for that morning nothing was said about it to Boyle or Nicholas. That
Seaman shrugged it off so unconcerned is particularly interesting in view of her
testimony that she had never been aware of any union activity in Respondent's plant
during the 4 years she had worked there. On the other hand, there is Roberts'
testimony that Seaman told her the reason Seaman did not believe the girls would
14 This was on cross-examination. On direct examination she had first testified that she
did not go up to Nicholas but simply motioned for him.
B. V. D. COMPANY, INC. 1437
walk out was because she had heard such rumors before. Even harder to believe
is that Roberts did not inform Nicholas who the person was that wanted to see him
when he was called about Miley's presence. Having heard that there was going
to be a walkout, the appearance of Miley must have confirmed the rumor for
Roberts. Significantly, Boyle, although apparently called upon to play no part in
the scene, was informed that a union lady wanted to see Nicholas.
Another aspect of the evidence that is difficult to believe is Respondent's testimony
that throughout the incident Nicholas showed no anger. The testimony on its face,
I believe, refutes this. Nicholas' sharp remark to Miley that "I'm busy, and I'd
certainly like to know what I am standing here for, or what I'm doing" when he
asked Miley what it was all about, could hardly be called a pleasantry. Nor could
the sarcasm of his opening remark to the girls that he was running a business and
not a Boy Scout Camp be classed as the gentle touch. When Miley countermanded
his second order that the girls go back to work, and he said, "Well, look, I am still
running the business, and I'm not taking orders from anyone," it is apparent that,
contrary to his testimony, he must have been at least "a little peeved." There can
be no question about his state of mind when he assembled the entire plant later
that morning to speak to them about the event At that time, according to his
testimony, he told the employees "it would be a cold day in hell when I would
tolerate that kind of misconduct in the mill.. .
Raising still further question in my mind as to the reliability of Respondent's
testimony on this issue are the discrepancies between the testimony of Nicholas and
Seaman regarding their action in the plant just preceding the encounter with the
committee. As will be recalled, Nicholas testified that when Seaman saw him mo-
tion that he was coming she turned and went back to the office. Seaman's testi-
mony was that he did not motion and that she waited for him and started walking
back with him. Moreover, she testified that as she started back to the lobby s,he
noticed the "commotion" of the girls in the "T" shirt section starting for the clocks
and "walked right on by them." The "T" shirt section at this time was located on
the front side of the plant extending about 80 feet from a point starting about
30 feet from the aisle leading from the clocks.15 Adjoining the "T" shirt section and
extending for approximately another 40 feet on the same side of the plant was the
trimming and boxing department.
By Seaman's testimony, she met Nicholas about 50 feet down the main aisle of
the plant. This would have carried her about 20 feet into the area bordered by
the "T" shirt section. In walking right by the "commotion" she described she saw in
the "T" shirt section, it is obvious that as she started to walk back with him, Nicho-
las must have been in position to see what she saw before he arrived at the aisle
leading into the lobby. Nicholas might have been preoccupied and not have noticed.
On the other hand, not having noticed until an instant before he walked up to
Miley best serves the purposes of his testimony that he had no idea what the situation
was that awaited him in the lobby.
Another conflict in Respondent's testimony which raises doubt as to Nicholas'
reliability as a witness is his placing the girls of the committee 10 to 12 feet from
him and Miley as a reason for raising his voice, when the testimony of both Nelson
and Seaman grouped the girls close in around him. Nelson's testimony on this
point has its own questionable twist. He placed the majority of the girls between
Nicholas and the outside entrance and between Nicholas and the west wall of the
lobby. In view of Nicholas' testimony that when he approached Miley there were
only 4 or 5 employees already in the vicinity of the clocks, this would have meant
that those who got between Nicholas and the entrance would have had to walk past,
between, or around Nicholas and Miley after the remarks began and at a time
when the drama of the situation would normally have arrested their movement and
attention at the side of their approach rather than at the opposite end of the lobby.
Since the lobby is approximately 10 x 20 feet, and since several of the girls were
placed along the west (20 foot) wall by Respondent's testimony, it is clear that there
is
The main structure of the plant is a rectangular shaped building approximately
120 x 600 feet facing south Extending through the center of this structure for the
greater portion of the 600 feet was an aisle or passageway separating the departments
located in the front of the building from those located in the back. A little to the left
of the center of the structure adjoining it on the front is a rectangular offset or projec-
tion approximately 40 x 120 feet, which houses the business offices, the time clocks, and
an entiance lobby. An aisle leads from the lobby and the clocks to the plant adjoining
the long center aisle of the plant perpendicularly. In his testimony, Nicholas identified
the then location of the various departments as he penciled their rough outlines in red on
the blueprint These are only approximations and are not in accurate scale
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was plenty of room to accommodate the remainder at the north or plant end of the
lobby as they approached the scene then under way.
Another incongruity involves Nicholas' testimony. Miley, although doing all
the talking for the committee most of which was in the nature of commands to the
girls and countermands of his orders, nevertheless, according to Nicholas, coyly
shied twice from giving him a simple, direct answer to his request fdr an explanation
of their purpose, telling him it was not for her to tell him but for the girls to speak
up. The evidence is convincing, and I find, that Miley was to be the spokesman for
the group if she could gain entrance and be permitted to talk. There is no other
logical reason for her presence.
In contrast to the Respondent's evidence, the General Counsel's testimony on the
clocks' matter reveals no basic inconsistencies nor does it present any obvious im-
plausibilities. While there are minor differences, the testimony reveals a coherent
picture which was convincingly presented. Apparently, it is this very coherence that
is attacked by Respondent as an indication that the story is too pat to be true. I
received no such impression when I heard the testimony nor do I have such an
impression now.
In any event there are other circumstances of the case that must be considered
in connection with the clocks' incident. One of these is the discharge of three
employees, Juanice Hill, Gladys Scovel, and Lena May shortly after the clocks'
incident occurred.
Hill testified that she did not go to the meeting of the 21st, but was informed the
next morning of the plan to talk to Nicholas and joined the group that went up to
see him. She was one of those who returned to the plant to get her belongings.
When she got back to her sewing machine, according to her testimony, she sat down
and was gathering her tickets and scissors when the girls around her started to ask
her questions. As she was talking to them she picked up a piece of material and
ran it through her machine. At this point, Nicholas and Croft came over to her
and asked if she had been with the committee. She told them she had. Nicholas
asked Croft is she had been with the committee. Getting confirmation from Croft,
Nicholas told her she was fired. Thereupon she left the plant.
Lena May, according to her testimony, had gone up to see what was going to hap-
pen at the clocks but not to participate. After the incident as Nicholas came into
the plant she asked him if she could talk to him. He asked if she had come up with
the others. She replied that she had not-that she "came up to see what was going
on." He told her, "You go back to your table and go to work or punch your card
and get out with them." She went back to her table. The woman next to her, Rose
Herndon, asked what happened. She said, "Well, he fired them girls. What you
all going to do about it? What do you think about it, too?" She then started work-
ing, folding "T" shirts, when Supervisor Gilley came over and asked what happened.
May told her the girls had been fired and that she didn't like it and was "mad about
it." Gilley told her, "You go back to your work. You go and do your work. I'm
going to talk to Mr. Boyle and see if he can't talk to Mr. Nicholas and get this thing
settled. He's fired the best girls he's got." May replied, "It won't do any good to
talk to him about me; he's just as good as fired me already. I signed a card and
when he finds it out, I'll go out, too."
Somewhat later, Gilley informed the employees in her section that Nicholas
wanted everyone at the clocks for a speech. May went up to hear the speech; when
came back, she continued with her work for about 30 minutes. Gilley then placed
her folding samples, a job vacated by Elizabeth Mills, one of the committee people.
She had folded about a dozen when Gilley came running down the aisle saying,
"Lena, Mr. Boyle and Raymond [Croft] want you and Gladys [Scovel] to go out.
."
Getting her belongings, she stopped beside Croft who had appeared on the
scene and was calling "Gladys Scovel and Lena May," while looking toward Scovel.
The latter asked, "Raymond, are you calling me?" He replied, "Yes, Lena May,
I'm calling you," adding, "You all come with me." Starting up the aisle, Scovel
asked where they were going. Croft said Boyle wanted them to punch their cards
and go out. Scovel said she was going back to get her things. Just outside the
clocks, May waited for Scovel who returned with her own things and May's work
tickets. They then punched their cards, waited for Nicholas and Boyle (who had
been talking near the clocks) to go into the office, and followed them into the office:
There May asked why she had been fired. Nicholas asked, "Well, you came up with
the girls, didn't you?" May said she had not; that she had come up at that time to
talk to him. Nicholas replied, "Well, that is what you are fired for, same thing as
the rest of them." The timecards of May and Scovel show that they punched out
at 10:30.
B. V. D. COMPANY, INC. 1439
Scovel 's testimony was that at 9:54 upon finishing an order she went to the rest-
room adjacent to the clocks and returned to her table at 10 : 05. She saw some of
the girls assembled at the clocks when she arrived at the restroom , but none were
there when she left it.
Returning to her department she overheard Gilley tell a group of girls as she
walked by, "If there's any more of you girls now wanting to go out and join the other
girls, now is the time to get going ." Scovel proceeded to her table and commenced
working on a new order . Then Gilley came by and asked , "Gladys are you stay-
ing in" to which Scovel replied, "Why , yes, I don't have anything to go out for."
Scovel continued working until about 10:20 when she joined the other employees
at the clocks area to hear Nicholas talk. On her return from the speech she con-
tinued working until she heard Croft calling "Lena May." Looking up from her
work she saw Croft was motioning for her; May was standing near Croft . Scovel
walked up to him and asked , "Raymond , are you calling me?" He said , "Yes, Lena
May." She said , "Well, Raymond , that is not my name." Looking at a paper in
his hand, he asked her name in a rough tone. She answered , "My name is Gladys
Scovel ." He said, "Yes , come with me." She and May accompanied him up the
aisle toward the clocks . On the way she asked where they were going . He said
"Just follow me." When they got to the clocks he told them to punch their cards
and get out . She protested that she was going back to get her belongings and did
so, punching her card when she returned . May was waiting for her.
Scovel and May then decided to go into the office and ask Nicholas why they
had been discharged . Boyle was with Nicholas at the time. Having posed the ques-
tion to Nicholas, he asked if they hadn 't been with the other girls, and commented,
"You're fired for the same reason they're being fired." On cross-examination, Scovel
added that as they left Nicholas said , "Well, when all this is settled and you may
get back in , maybe we can get along better."
According to Nicholas ' testimony , as he finally stepped into his office and the
committee started out of the plant , he noticed 2 or 3 girls of the committee going
back into the plant . For this reason , he remained in the office only long enough to
tell Seaman to get replacements and started into the mill in order to watch the girls
walking back . He "didn't know what to think about it." He was wondering , "Well,
are they going back to work as I've told them to do, or are they going back there
to start some trouble , or am I going to have more trouble?" 16 Just as he got past
the clocks, he testified,
I noticed a lady standing there , whose name I didn 't know, and who now
I know to be Lena May, and she walked towards me and she said something
about, "What is this all about?" and "What shall I do ?" In fact , she-I don't
know what exactly she said . She mumbled something , and I said to her, "You
were up here at the clocks . Now are you going back to your machine and go
back to work, or what do you intend to do?" And she said , "Well, I'd like to
talk to you."
I said, "I've got a lot of things to do , and I have a lot of straightening out to
do in the mill. Are you going back to work, or just what do you intend to
do?" And she said-she didn 't say anything . She just started to walk back
to work, and I walked past her.
Noticing that one of the girls, Juanice Hill, had gone into the BVD unit , Nicholas
went over to Supervisor Raymond Croft and asked if she had gone back to work.
Croft replied, "The girl you are referring to is over there." 17 At this point, Nicholas'
testimony was:
And I looked over to where she was sitting , and she was sitting there, and
there were about three or four other girls talking to her , and she was just sitting
back with her hands in her lap.
16 This testimony was on direct examination On cross-examination , he testified he was
concerned about the girls going back into the mill, explaining , "Well and good , if they
wanted to go to work, but not well and good if they wanted to go in there and give me
some more trouble of some kind I didn't know ." "I don't know what they might have
done back there They might have started to shout to each other, and they might have
done anything , and I was interested in knowing what they were going to do "
11 Nicholas ' testimony on cross-examination was that lie did not know the name of the
employee in question , nor did he describe her to Croft . His testimony was, "The only
thing I knew , I had seen her going back in that direction , over there, and he evidently
knew it , too. And when I asked the question . he pointed her out "
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
So I walked over to her, and he walked over with me, and I looked at her and
I said, "Well, are you going to go to work or are you going to start your ma-
chine?" She didn't say anything. She just sat there and her machine was not
running.
I said, "Now, look, what do you intend to do? Are you going to work, or
what are you going to do?" And she just sat there, sort of disinterested in the
whole thing.
I said, "Now, if you are not going to work and you are just going to sit here
and you are going to talk, please punch your card and leave the mill." And
with that, she got up and she picked up her purse, which she had right next to
her, and with her scissors, I believe, and she walked up to the clock and left.
After this, Nicholas "walked around and-looked in the other departments and
spoke to the foreladies and told them `Let's get things running.' " It was apparent to
him that the commotion had carried over and was affecting the employees inside the
plant. His purpose had been to see if the plant had quieted down and if they were
getting back to normal production. His general feeling was that they were not.
Eight or ten employees had left the "T" shirt unit and were looking out the windows.
People were talking to each other "and there was a general disorder in the mill, and
general uneasiness."
It was after 10:30 that he spoke to Supervisors Stella Gilley and Croft, telling
them he "wanted the girls to get back to their machines," to keep the people away
from the windows, and to get down to work.
When he returned to his office after the encounter with Hill and the first general
inspection of the plant, Forelady Gilley came to him, about which he testified as
follows:
Q. At some time that morning did you have a conversation with Stella Gilley
about two employees?
A. Oh, no, I didn't have a specific conversation about two employees. This
is what happened: I was in the office with Mr. Boyle, in our office, and Stella
Gilley came into the office and she said, "Mr. Nicholas, I have a couple of
girls," that is what she said; she didn't refer to any two girls. I didn't even
know what she meant by a couple.i$ She said, "I have a couple of girls out
there who are not working; they're standing around talking. They don't know
what to do, and I don't know what to do with them. What shall I do?"
And I said to her, "Well, if they are not working, they're not paying attention
to their business, and if they're just talking, lay them off. I've got a lot of
troubles and I've got a lot of things to think about, and you take care of that."
And with that, she left the office.
Q. Did she tell you the names of the girls?
A. No, she did not.
A few minutes later, as Boyle and Nicholas were talking, May and Scovel, came to
the office and asked Nicholas why they had been laid off. Nicholas' testimony on
direct examination was as follows:
And I said, "Look, I don't know anything about why you were laid off.
Who laid you off?"
"Our supervisor laid us off." I said, "Well, I have a lot of things that are
troubling me and I have got a lot of things on my mind, and I've got to get my-
self straightened out, and I don't know anything about the reason for your be-
ing laid off, or what you did, or what you didn't do. I'll be very glad at some
future date, as soon as I can get straightened out, to discuss the thing with you,
and more than likely to take you back if anything has been done that isn't right,
but for the time being, if you have been laid off, there's nothing I can do about
it, and that is it."
Q. And who were these two girls, do you know now?
A. One was Lena May and the other was Gladys Scovel.
The following significant discrepancies appear in the testimony Nicholas gave about
this matter in the injunction proceeding:
Q. And you know that she [May] had gone back to her machine to go to
work?
A. I don't know if she had gone back to her machine to go to work. I
know she went back into the mill. That I do know. And I also know what
18 On cross-examination he testified that it couple could have meant to him as many
as 20.
B. V. D. COMPANY, INC. 1441
I told her at the time she came into the office . I said , "I don't know what and
don't care what your connection is. I have to maintain order in this mill,
and later on if you will stop in at the mill I will be very glad to talk to you
and probably reemploy you ." Those are my last words to her.
Q. I believe you testified these two ladies, Miss Scovel and Lena May,
came to see you in your office after the others left and asked you why they
were being made to check out and you told Miss Lena May that she was with
the other group at the clock. Didn't you testify to that?
A. Yes, I said she was with the other group at the clock.
Q. And that was the reason she was being laid off?
A. I was not the one who laid her off , however, she was with the group
at the clock , and what she went back to her machine for I don 't know and
couldn't tell you.
Q. What was the reason she was being laid off?
A. I imagine because she was one of the group that went up to the clock.
Q. In the meantime had you issued orders to your supervisors to lay off
those [sic ] had gone up to the clock?
A. I didn't have very much time to issue orders to anybody.
Sometime between 10:30 and 11 , Nicholas went out in the mill to see if things
were in any better shape . Convinced on the basis of this inspection that something
should be done , he told Seaman about 11 a . in., "Call the girls together . I think
it advisable that 1 speak to them." It is clear from Respondent 's testimony that
work was practically at a standstill . 19 Therefore , in order to clear up the confusion
and get the plant operating , he decided to explain to them what had occurred
between him and the girls then on the outside.
Croft's testimony about the Hill incident corroborates Nicholas' with one excep-
tion. Croft 's testimony was that Nicholas asked him where Hill was-not if she
had gone back to work. As for May and Scovel , Croft's testimony was that about
10.20 he met Gilley near the clocks . She told him there were two girls that Nicholas
wanted to discharge . Without asking the reason or an explanation , he told Gilley
he "would take care of that ," and apparently proceeded on some other business.
Then seeking out Gilley he asked where the two were . Each was standing at her
table. He got them and took them to the clocks. One asked permission to go back
and get her purse, which she did. On her return , both went into Nicholas' office
and Croft left.
Gilley's testimony as to May and Scovel was that when they came back to the
tables they told the bundle girl, Annie Byrd, that "they had been with the crowd"
and that Nicholas had told them to go back to work. Gilley asked Byrd if they
were going to work Byrd said , "I'll find out." Gilley followed Byrd to the tables.
May and Scovel weren't working and were talking with several other employees.
Addressing herself to May, Gilley asked , "Are you going back to work?" May
replied, "Well , Mr. Nicholas told us to come back and go to work. I don't know
what to do about it. I promised the girls faithfully I would go out with them, but,
whatever Gladys does ." Gilley then said, "Well, you girls, all of you girls that are
not going out, please go back to your work , and the ones that are going out, go
out now." Byrd asked , "What do you want me to give her to do7" Gilley said,
"Put her on samples in Elizabeth Mills' place ." She then asked May if she minded
going on samples , to which May replied, "No."
The balance of Gilley's testimony on the incident appears in the record as
follows:
Well, she stood there and she said, "Well , I don 't know what we are going
to do about it."
Well, I turned and walked off, and I went to Mr . Nicholas' office and I told
him, I said, "Mr. Nicholas , I have a couple of girls out there that you sent
back to go to work, but they aren ' t working , they're just discussing whether
or not they should go out "
And he said , "Well, lay off everybody that is not going back to work; that
won't work ; lay them off."
i^ Edna Flint , one of the Respondent's witnesses, testified that it took 15 or 20 minutes
after the committee went out to get the girls back to their machines and that even then
no work was done According to her. "The gals wasn ' t trying to work, and they weie
all interested in what was going on
338207-55-vol 110-92
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
So I turned and went outside, and when I met Mr. Croft, who was over
me at the time, I told him that there was two girls, and I gave him the names
that weren't working at the time I left the department. The others had gone
to their tables and made an effort that they were going back to work.
So he asked me-I gave him the names, and I turned and started back up,
and I told him what Mr. Nicholas had said. And I started back to the depart-
ment, and he was behind me, I guess, because by the time I got back to the
department, he was there, too.
I had said nothing to the girls up until then. And he said, "Now, which two
girls is it?" And I showed him the two girls, and I asked Lena May to come
and go with him, her and Gladys, and she turned to Gladys and said, "Gladys,
you hear that?" And Gladys said, "Yes."
And they turned and left with Raymond. . . .
Except for the testimony of May and Scovel, the only testimony as to the perti-
nent details of their conduct in their department preceding their discharge is by
Gilley.20 Practically all this testimony centers on May, coupling Scovel by way of
remarks attributed to May. The only direct testimony as to Scovel's conduct in-
volves Gilley's initial appraisal of the situation when she found May and Scovel
as well as several other employees talking and not working. The only evidence
pertaining to Scovel's conduct after Gilley issued her order for the girls either to
go out or get back to work appears, from its context, to be Gilley's information to
Croft that at the time she left the department "The others had gone to their tables
and made an effort that they were going back to work." There is nothing in Gilley's
description of the scene involving the "either or" order to show that it was complied
with by anyone, nor would it appear that she remained in the department long
enough after that order to have been able to observe what "effort" the employees
were making to go back to work.
According to Gilley's testimony, although May appears in the role of spokesman
for herself and Scovel, May was willing to abide by Scovel's decision as to whether
they went to work or went out. Gilley's action in assigning May to sample work,
after the "either or" edict, would seem to indicate that the decision was to stay and
that Gilley was aware of that decision. Nevertheless, Gilley, in spite of the un-
questionable authority she had to discharge employees without prior approval of
her superiors, immediately reported to Nicholas for advice. The purpose of this
visit to Nicholas, I conclude, was to disclose that May and Scovel had been on
the committee; and the conclusion that this information resulted in an order by
Nicholas for their discharge for that reason is supported by Nicholas' own testi-
mony, no matter how it is interpreted.
On the one hand, his concern about whether he was going to have trouble from
the 2 or 3 women of the committee he saw going back to join some 300 other em-
ployees on the inside is a bit tenuous. Had all of the employees of the committee
gone back, his conjecture about what they might have done and what trouble he
might have had would be more realistic. Assuming that Nicholas gave the com-
mittee the opportunity to go back to work, to have seen 3 going back in the plant
while the others went out, I would think, should have given the initial impression
that 3 had decided to abandon their original cause and to cast their lot with those
on the inside.
On the other hand, taking his testimony at its face value, there is the implica-
tion that his concern about the trouble the returning employees could cause moti-
vated a purpose on his part to eliminate such a threat by discharging them.
It is possible, as Nicholas testified in effect, that he had no idea how much
support the committee had among those remaining in the plant. However, the
measure of his concern about that and the plausibility of the reaction he claims to
have had at the time is considerably lessened by the swift and disparate action he
took regarding Hill.
Even if I were to credit Respondent's evidence as to the essential details of
Hill's discharge, which I do not, I would find that her discharge was discriminatory
within the meaning of the Act. To have singled her out for disciplinary action from
among a group of other employees all then equally guilty of not working, but taking
no such action against the others, clearly demonstrates a discriminatory motive-
namely, Hill's connection with the committee.
20 Lois Wilkinson, Respondent's witness, corroborated Gilley's testimony to some ex-
tent. She testified that she overheard Gilley ask May "something about what she was
going to do," to which May replied that she did not know "that she promised them to
back them up. She didn't know whether she was going to go or stay "
B. V. D. COMPANY, INC. 1443
In spite of his testimony before me to the contrary, the evidence clearly shows
that the discharge of May and Scovel was predicated on the belief that they had
been with the committee and that Nicholas knew this to be the reason when the two
came to his ofl'ice.21
It was after Nicholas had made his first survey of conditions in the plant subse-
quent to the clocks' incident that Gilley spoke to him about a "couple" of girls not
working. Realizing that the whole plant was in turmoil, that girls were looking out
the windows, talking among themselves, and that work had practically stopped,
Gilley's information should have struck Nicholas as a masterpiece of understate-
ment-even if he did construe it to include as many as 20 people. It is unthinkable
under the circumstances that Nicholas would have issued an order to discharge any-
one who was not working.22 On the contrary, I find, substantially in accord with the
General Counsel's testimony on these three employees, that Respondent's purpose
was to eliminate anyone who had been at the clocks regardless of whether they were
then working or wanted to work. Significant in this connection is Nicholas' failure
to deny in his court testimony that he had issued an order to lay off those who had
been at the clocks. This failure amounts to an implied admission.23
The conflicts in the testimony Nicholas gave before me and before the court,
Nicholas' attempts to rationalize his position in his testimony, and the discrepancies
and inconsistencies in Respondent's evidence generally gave rise to a sense of un-
reliability regarding Respondent's story when compared with the General Counsel's.
Nor is this sense diminished by the demeanor and appearance of Respondent's wit-
nesses. Nicholas, particularly, appeared to be uneasy and nervous on the stand.
Yet there was a glibness about his testimony which was not in keeping with his ap-
parent discomfiture nor with a conscientious recital of facts. No less damaging
to Respondent's version of the clocks' incident, of course, is the action taken against
Hill, May, and Scovel.
In my view of the evidence and the manner in which the testimony was given I
am convinced that the General Counsel's version of what happened at the clocks
on April 22 between the employee's committee and Nicholas is more worthy of
credence than Respondent's. Accordingly, I credit the General Counsel's version
and find that the employees were given no opportunity or order to go back to work
but were summarily discharged.24
21 Besides Nicholas' court testimony that he told May when she and Scovel asked why
they were being laid off that she was with the group at the clocks, there is his testimony
before me that when May and Scovel came to him lie recognized May as the woman he
talked to near the clocks right after that incident At that time, according to his testi-
mony, he had accused her of being with the committee, and had told her to go back to
work or punch out with the others. Although Nicholas' and May's testimony is in sub-
stantial accord on this, it does not, in my opinion, militate against my finding that no
opportunity was afforded the girls at the clocks to go back to work. While it is not con-
firmed by Nicholas' version, May testified that she denied that she had been with the com-
mittee On this portion of May's testimony, which I credit if for no other reason than
its logic, it is apparent that it could have raised enough doubt in Nicholas' mind that she
was not with the committee to have impelled him to give her a chance to go back to
work in contrast to his tieatnient of the committee people.
g Obviously such an order would have included and alienated employees loyal to man-
agement. That Nicholas was aware of intense partisanship on Respondent's behalf by
employees on the inside is apparent from the request (according to his testimony on the
court proceeding) some of them made to him when he went into the plant after the
clocks' incident to be permitted to go outside to "take care of" those outside Nicholas
admonished them against violence
"'Attorney General v Pilletser, 240 Mass 264, 134 NE 407.
ii Whether or not Nicholas used the word "fired" or merely told them to get out, any
contention that the employees were not discharged but simply elected to go out on strike
when Nicholas refused to talk to them is refuted by the record as a whole and more spe-
cifically by Respondent's records which indicate the reason for the termination of these
people to be "discharged for misconduct "
In making this resolution I am aware of and have considered (1) the credible testimony
that Nicholas in his speech to the employees later that morning told them he gave the
committee members the opportunity to return to work which they refused, and (2) the
testimony, which I do not credit, that Claire Beasley, one of the pickets, commented to
Nicholas on the picket line that she realized he had given them the opportunity to go back
to work and then asked him if in spite of that he thought they would ever have their jobs
back
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The concerted activity
Other than the fact that the committee 's request to Nicholas for a conference
was connected with the Union, it is quite clear that the purpose of that request was
not revealed at the time . Nicholas did not seriously attempt to find out what the
employees , wanted to discuss, and they never had the opportunity then to enlighten
him. As brought out later, the committee sought to discuss recognition of the Union
as bargaining agent for all employees and preferential hiring of former employees of
the plant. This latter purpose, Respondent contends , "was placed in the record as
part of the planned perjury to constitute a `grievance ' in line with the `partial strike'
cases." Except for the bearing the rehiring issue might have on the general credibility
of the General Counsel's witnesses , it would require no discussion.
Assuming that the only purpose of the committee was to discuss recognition, that
it did not represent a majority (which apparently it did not), and that it nevertheless
demanded recognition as bargaining agent for all employees , I find nothing in the
Act which makes such a demand in the absence of a certification illegal or unpro-
tected. In any event , no such demand was made. The employees simply sought
to discuss the matter . That such a concerted request is protected by the Act needs
no comment.
As for the rehiring issue, there is ample testimony by the General Counsel's wit-
nesses who attended the union meeting the night before that that was one of the
questions the employees decided to raise with Nicholas , and was one of the purposes
mentioned to those who were informed of the plan the next morning . Just what
relative importance was placed on this purpose compared to the discussion of recog-
nition in the minds of the employees , as distinguished from the union officials, is
another matter . That it was perhaps the only intelligible item of the two to many
of the employees is clearly demonstrated by the evidence. In defining their concept
of recognition , several of the General Counsel 's witnesses testified that recognition
meant they could have an election . Other versions were that union buttons could
be worn with no fear of reprisal , that it meant having job security , that union notices
could be posted on plant bulletin boards, and that it meant permission to organize
the plant. Recognition to these people, for the most part , seemed hardly more than
some vague or peculiar advantage to them identified with unionism. Preferential
hiring of former employees , however, appeared to be an understandable issue to
them, closely identified with their employment and working conditions.
Regardless what the real purpose of the union officials may have been in this,
matter, or how and under what circumstances the matter of discussing preferential
hiring with Nicholas was agreed upon , I am convinced and find that it was discussed
in the union meeting of April 21 and was understood by most of the employees to be
one of the subjects to be raised with Nicholas the next day.
Thus it would appear that the purpose of the employees in their attempt to talk
to Nicholas was protected by the Act . The only question remaining is whether the
method they used was also protected . Respondent 's position is that in coming to
Nicholas without notice and without clearing through their immediate supervisors
the employees violated a plant rule or at least custom and that such action amounted
to misconduct justifying their discharge.
There is no question but that there were no published or posted rules , such things.
as smoking , rest periods etc. being governed by past practice or custom , new em-
ployees apparently learning by trial and error . It is also clear that individuals seek-
ing to talk to top management customarily made such arrangement through their
immediate supervisors . Whether or how long this practice was developed prior to
Respondent 's taking over the management of the plant does not appear. The record
is clear , on the other hand , that on several occasions from the time Respondent took
over in the fall of 1951 to April 22, 1952, Nicholas in various speeches had assured
the employees his door was always open to them should they have anything of any-
nature they desired to discuss with him. Nothing in the General Counsel 's testi-
mony in connection with Nicholas ' remarks about his open -door policy indicates
the requirement of a supervisory intermediary . In contrast , Nicholas' testimony before-
me carefully and specifically conditioned his availability to the employees upon
proper arrangement being made through their supervisors . Significantly no such
condition appears in his court testimony on the matter.
Although it appeared to have been the accepted practice that contacts with top
management normally were arranged through supervisors , there is undenied and
credited testimony by Mills , one of the General Counsel's witnesses , that she and
another employee , Goff, had gone to see Boyle one afternoon in March without first-
clearing with their supervisor . At the office Croft heard them ask for Boyle, who
did not happen to be in. They returned to their work and Croft came over to learn:
B. V. D. COMPANY, INC. 1445
what they had wanted with Boyle. No disciplinary action was taken against Mills
and Goff, nor does it appear that they were reprimanded by Croft or anyone else
for their conduct.
From the foregoing it is apparent that whatever the practice or custom was regard-
ing this matter there is considerable doubt that it could be accorded the same im-
portance as a formal rule promulgated by the new management . Moreover, rule or
custom, Mills' and Goff's expedition to Boyle without objection or reprimand casts
serious reflections on Respondent' s position herein. Thus, whether or not the
committee 's conduct be interpreted as a breach of plant rules , I find that in the cir-
cumstances herein their discharge was not because of the breach of rules aspect
of their conduct but rather because of the purpose they had in mind namely, their
concerted action and connection with the Union. Nicholas' attitude and remarks
tend to indicate that but for the union connection the employees would not have
encountered the difficulties they did that day with Respondent.
Testifying in court that there was "no prohibition against five girls leaving their
machines at any time during the same time ," he gives the same impression of un-
concern as to that type of activity as he did when he testified as to his lack of con-
cern on seeing the girls start toward the clocks. Further evidencing his evaluation
of the matter apart from the union aspect of it is his testimony that at the time he
-did not know it involved only 23 girls out of 350, that it was such a small minority
that it didn't mean anything , ". . . except breaking up production." Only after he
met Miley did the impact of the situation strike him. Then, apparently, action
that had theretofore failed to impress him and had left him unconcerned suddenly
took on the proportion of a browbeating " uncivil commotion with someone stand-
ing outside who has never even said a word to" him.
Accordingly, I find that Respondent 's conduct toward the employees in the clocks'
incident , including Hill, Scovel, and May was discriminatory within the meaning
of Section 8 (a) (3) and (1) of the Act. Respondent's sense of injury and appar-
ent shock concerning what it obviously considers an unreasonable abrogation of a
basic management right in this situation is understandable . However, one needs
but to read the Act and the decisions under it to realize that there is a national policy
to diminish industrial strife and protect the rights of the public in connection with
labor disputes affecting commerce and that to this end collective bargaining is to be
encouraged. This requires an acceptance on the part of employers of the princi-
ple of collective bargaining and also recognition on the part of both employers and
employees of obligations and limitations foreign to their prerogatives in the past.
The situation here touches a sensitive chord in that it involves a very fine distinc-
tion between the fundamental management right of maintaining discipline and the
fundamental employee right of self-organization . As pointed out by the Supreme
Court, in Republic Aviation Corp. v. N. L. R. B., 324 U. S. 793, "Like so many others,
these rights are not unlimited in the sense that they can be exercised without regard
to any duty which the existence of rights in others may place upon employer or em-
ployee." In this case I believe that Respondent has failed in its obligation under
the Act to accept the concept of collective bargaining and to recognize the limita-
tions the policy of the law has placed upon its rights as distinguished from the rights
of its employees.
In a case in point the Court of Appeals for the Third Circuit said, N. L. R. B. v.
Kennametal, Inc., 182 F. 2d 817,
That the employees suddenly dropped their tools and insisted upon present-
ing their grievances during working hours does not detract from the lawful-
ness of their conduct. Certainly the statute would have protected them against
interference or coercion if instead of insisting upon immediate discussion of
their demands they had then and there left the plant and formed a picket line
instead. In fact, what the workmen did was more reasonable and less produc-
tive of loss to all concerned than an outright strike.
The language of the Act does not require and its purposes would not be served
by holding that dissatisfied workmen may receive its protection only if they exert
the maximum economic pressure and call a strike. Our conclusion that a
spontaneous work stoppage like this one is protected by the Act is in accord
with Gullit Gin Co. v. N. L. R. B. 179 F. 2d 499 and Carter Carburetor Corp.
v. N. L. R. B. 140F. 2d71425
What happened in Pascagoula is poignant proof of the wisdom and truth of the
court's observations in the Kennametal case. Had Nicholas recognized his respon-
sibilities under the Act and been willing to spend a few minutes with the committee,
21 See also American Manufacturing Company of Texas , 98 NLRB 226.
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a disagreeable situation might have been averted. Instead, insisting on his mistaken,
prerogatives, he discharged the employees thus committing an unfair labor practice,
against them. The picketing that followed and the support it received from others
of Respondent 's employees constituted a protest against Respondent 's unfair labor
practices and amounted to an unfair labor practice strike.
3. Correlative issues
Because of their effect on the credibility of the witnesses or the support they might
give one side or the other, certain other aspects of the case must be discussed before
considering the clocks' incident disposed of.
a. The intention to strike
Respondent apparently contends that it was the intention of the committee to spear-
head a strike at 10 a. m., April 22, and that such a plan was developed in the union
meeting of April 21. Whether or not the employees intended to walk out that morn-
ing, of course, is immaterial since, as I have found, they were discharged before they
had an opportunity to demonstrate such a purpose. Nevertheless, an analysis of
the evidence leads me to believe that whatever might have been in the minds of the
union officials there was no intention on the part of the employees who went up to
the clocks to participate in a walkout that morning.
At the meeting the night before one of the employees raised the question of what
would happen if Nicholas discharged them. Martin, International vice president of
the Union, assured them that Nicholas would not do so; that he was too intelligent
to do so; and that employers no longer reacted to employee action in that manner.
Further reassuring the employees, Martin pointed out that they had the law to pro-
tect them from discharge and that in any event, if they were discharged, they could
be reinstated through the Board's processes. In addition they could probably get
their colleagues to engage in a sympathy strike on their behalf. Apparently in this
connection Martin discussed various aspects of strikes, telling about some the Union
had engaged in, and referring to weekly strike benefits paid by the International.
Notwithstanding the discussion of strike action that occurred in this meeting, I do
not believe that a strike or walkout was planned or expected by the employees. It
would seem hardly likely that supporters of strike action would have been so casually
and informally recruited in the plant the next morning, a matter of minutes before
the event. Moreover, if those who went to the clocks had been planning a walkout,
it is strange that many of them left their belongings at their machines and tables.
It seems to me that the most the record proves is that the committee volunteers
were aware of the chance they took of being discharged and sought some reassur-
ance on that point. In reassuring them, Martin explained, among other things, the
ultimate weapon of the sympathy strike. The consciousness of every union member
must ever carry somewhere within itself the possibility of strike action. Conjecture
among the committee members as to such action here must have been inevitable.
Conjecture, however, is far short of purpose or plan An interesting sidelight on
this point arises in connection with a part of Nicholas' testimony. In commenting
on the apparent callousness of the employees and their lack of concern about the
propriety of the manner in which they chose to approach Nicholas, the latter testi-
fied, "and, personally, I'm of the opinion that they wanted to go out more than
to stay.... " Asked how he knew that, he answered, "I don't. I'm just . . . be-
cause I gave them the opportunity to go back to work repeatedly and they didn't do
so."
b. The picket signs
Connected with the theory that the purpose of the union adherents was to engage
in a strike is the conflict in the testimony as to whether picket signs appeared at the
plant before lunch shortly after the committee went out, as testified to by several
of the Respondent's witnesses,26 or whether they did not appear until about 4 that
afternoon, as the General Counsel's testimony shows.
26 Of these witnesses, some testified that one of the signs read : "This plant on
strike " Further, some testified that they saw picket signs before lunch, but when they
went out to lunch they were no longer to be seen and they did not reappear until late that
afternoon. Still other testimony is that the signs were there all day. The testimony of
Sheriff Byrd called by the General Counsel was that he got to the plant at about 11 a in
April 22 and at that time no signs were to be seen or were being carried and further that
B. V. D. COMPANY, INC. 1447
Without going into detail and without resolving the matter I shall dispose of it
by comment. The thought that there were picket signs carried right after the
employees went out that morning for a short while but that for some reason before
lunch at 11 : 30 a. m . they were eliminated until late that afternoon , resolves itself
unfavorably for Respondent 's position no matter how it is analyzed.
Assuming arguendo that there was a plan to strike and that picket signs carrying
the caption , "This plant on strike " were available and used the minute the em-
ployees left the plant but that within an hour or less the signs disappeared , the only
possible explanation as to why the signs were temporarily discontinued would be
that upon learning what actually happened at the clocks the union officials realized
they had a windfall in that the employees were discharged before they had the oppor-
tunity to demonstrate their strike purpose.27 Thus to avoid jeopardizing their charge
of discriminatory discharge against Respondent by indicating an independent pur-
pose to strike , they decided to conceal and repress the evidence of such purpose.
No other plausible possibility presenting itself, the only other alternative would be
to assume that the Respondent 's witnesses were mistaken or not truthful.
To that effect , the General Counsel offered an interesting theory. Picketing had
proceeded only a few days after the girls were discharged before it was halted by
the court . It was not until about 3 weeks later that picketing resumed. This re-
sumption occurred sometime between 10 : 30 and 11:30 on the morning of May 14.
The General Counsel offers the suggestion that the Respondent 's witnesses have con-
fused the resumption of picketing on May 14 just before lunch with the original
day of picketing , April 22, as a possibility.
One other interesting aspect of this matter appears in the undenied credited
testimony of Hazel Williams , one of the General Counsel's witnesses . On April
22, Nicholas made 2 speeches to the employees , 1 sometime before lunch , discussed
below, and 1 just before quitting time that afternoon . In the latter speech he told
the employees about picket signs being up; that he did not know what was on the
signs; that the employees were not to be afraid and that they would be protected.
Although Nicholas mentioned in his first speech the fact that the girls were still
lingering outside the plant and had not dispersed , significantly there is no reference
in any of the testimony about that speech to picket signs which presumably had
just made their appearance within the hour and certainly would have been more
newsworthy in his first speech than in a speech some 5 hours later.
c. Nicholas ' speech
One remaining conflict in the testimony requires comment. This involves the
approximate time Nicholas called the plant together after the clocks' incident to
allay the confusion and get production under way . Respondent 's evidence is that
the speech was made at about 11 a. m. or shortly after. The General Counsel's
evidence is that it was made at about 10 . 20. The importance of the matter is its
bearing primarily on the credibility of May and Scovel who both testified they
heard the speech and were not discharged until after it was made . Since they were
discharged and left the plant about 10:30, they could not have heard the speech
if it was given after that time.
Nicholas admitted in his court testimony that the discharge of May may have
occurred after he gave his speech . In his testimony before me he explained this
admission as a mistaken recollection which became clarified for him when he later
found that May's card had been punched at 10:30. It was this fact that crystallized
his conviction that May was not in the plant when he spoke.
Since I do not rely on the testimony of May or Scovel in any of my findings
regarding Nicholas' comments to the employees that morning , I deem it unnecessary
to specifically determine the issue . Here again , however, I might comment gen-
erally as to how the evidence impresses me.
It was Respondent 's usual practice when necessary to convoke the employees,
to do so just before the lunch break or before quitting time so as to obviate the
it was not until late in the afternoon that he first saw signs being carried On the basis
of the sheiiff ' s testimony , which I credit , it would appear that the conflict between the
Respondent ' s witnesses and the General Counsel 's centers on the question of whether the
employees who went out carried picket signs practically immediately thereafter for a
short while and then eliminated them for a period of about 4 hours
27 In this connection Wallace testified that when he got to the plant the morning picket-
ing started , he and Miley discussed how foolish Nicholas was to have discharged the
girls . He also commented to Miley that he thought she had a "darned good unfair labor
piactice charge "
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
necessity of returning to machines On this occasion, however, the situation ap-
parently was too pressing to wait the extra 10 or 20 minutes until the lunch period.
There is no serious attempt on Respondent's part to deny that the employees, as
I find, returned to their work after the speech that morning. As revealed by Nicho-
las' testimony, it is clear that he felt compelled to call the employees together when
he did because of the confusion and disruption in production that had pertained
since the occurrence of the clocks' incident. Nicholas had been aware of this condi-
tion almost from the start and had twice requested supervisors to get the employees
back to work. He had also issued an order, according to his testimony, to discharge
anyone who was not working. Yet at the same time he was concerned with the
matter of getting replacements for those who had gone out. Under these circum-
stances, the wonder is that he waited almost an hour before he decided to clarify
and straighten matters out by a speech. Even more amazing is that having waited
an hour he suddenly decided it was so important it could not wait another few
minutes so as to permit the employees to go to lunch directly from the speech in
accordance with the usual practice.
4. Defenses to reinstatement and back pay
In its brief Respondent raises two defenses to reinstatement and back pay-(1)
violence and picket line misconduct attributed directly to employees and (2) con-
spiracy on the part of the employees to engage in such activity.
a. Conspiracy
The chancery court found that the picketing employees of Respondent had en-
gaged in a conspiracy to commit violence and to otherwise misconduct themselves in
connection with their picketing activities. The court's record was not made part of
my record. With all deference to the court's decision, I find insufficient evidence in
the record before me to establish a conspiracy. The pickets had numerous sympa-
thizers from outside the plant and from other unions and received counsel, aid, and
encouragement from them.28 Notwithstanding the fact that many of the pickets
had husbands and relatives among these sympathizers, the necessary concomitants
of a conspiracy have not been shown. The picketing employees may have been
happy about events as they developed-the dynamiting of the plant, the cut tele-
phone wires, bullet holes in the windows, etc It is possible that some might even
have had knowledge that some of these things were being contemplated. If so (and
there is no evidence in the record to that effect)29 whatever that would make them
guilty of, it does not establish guilt on their part of conspiracy.
b. Violence, intimidation, and coercion on part of employees
Apart from the threats and warnings which have already been disposed of, only
one incident appears in this record regarding conduct on the part of the picketing
employees worthy of consideration as a possible defense to reinstatement.
Late one afternoon in June, after the injunction action, some eggs were thrown at
a group of nonstriking employees waiting at a bus stop on U. S. Highway 90, which
is located 200 or 300 yards from the plant. All the participants were women.
Union adherents Bessie Bush and Alda Renfroe each threw two eggs. No one was
hit. One egg hit a telephone pole near the target group-some landed on the high-
way. The eggs had been thrown diagonally across the highway from a place known
as Raz's Cafe which more or less constituted the picketing employees' headquarters
during the strike. No comments or action on the part of the nonstrikers had
provoked the throwing.
Being no apologist for picket line or strike violence, I would in ordinary circum-
stances recommend that on the basis of their conduct in this matter Bush and Renfroe
be denied reinstatement. All things are relevant, however, and this is not a case
involving ordinary circumstances. It would seem to me that in view of the intensity
of the emotions on both sides in this matter and the seriousness of the events that
28 There is no doubt that some of these sympathizers engaged in coercive and intim-
idating conduct in connection with the picket line activity
2P The testimony involving talk about the shrimpers from Biloxi and the seamen fioni
Mobile coning to help the pickets, threats about trouble and physical violence to be ex-
pected, and the warnings of the danger involved reflected what apparently was general
tumor and conjecture throughout the community.
B. V. D. COMPANY, INC. 1449
occurred-the dynamiting, the firearms display, the National Guard, and all the rest,
to refuse employment to two girls who engaged in the almost innocuous (from a
man's point of view) attempt to hit someone by the method of throwing a couple of
eggs 40 or 50 feet would simply not be justice. Nor do I believe, would it effectuate
the policies of the Act. After all the publicity this case has had in Pascagoula and
that section of the country to come forth with such a recommendation in the circum-
stances would be entirely misunderstood to the detriment of the Act's objectives.
Furthermore, in the event my overall recommendations are sustained I do not doubt
that Respondent would be the first to agree with me that the conduct of these two
employees on the matter of the egg throwing makes them no more unfit for rein-
statement and continued employment with Respondent than any of the other
employees involved.30
c. Other defenses
One other possible defense, while not specifically argued by Respondent, needs
examination. Several of the General Counsel's witnesses admitted on cross-exami-
nation that in the court proceeding they were asked if they would accept reemploy-
ment should it be offered them. Their answers in substance were that they would
not accept such an offer unless Respondent recognized the Union. Exactly what
language was used or what its context was in posing the question to the witnesses in
the court proceeding does not appear. In substance, however, it would appear and
I find that the question put to these employees was merely hypothetical and did not
amount to unqualified offers of reinstatement. For this reason among others no
termination of Respondent's back liability occurred by reason of the court testimony
nor does it preclude the employees in question from reinstatement.
C. The individual 8 (3)'s
1. Couch, Bullock, and Shumack
The complaint contains several allegations of discrimination against individual
employees. Among these are Mattie Couch, her sister Odean Bullock, and Allison
Shumack, all alleged to have been discriminatorily terminated by Respondent on or
about February 20.
Bullock and Shumack had attended a union meeting at the home of Couch on
the night of February 18-a Monday. Although there had been previous union
meetings of Respondent's employees at the Carpenters' hall, located on one of the
main streets in Pascagoula, the meeting at Couch's house was the first to be held in
a private home. According to Shumack's undenied and credited testimony, she had
worked in the plant for 5 years prior to her termination by Respondent on February
19. Most of this time she had spent sewing hangers on garments-the task she had
at the time she was terminated. That morning, February 19, when she started to
punch in, Forelady Vickie Bowman said, "Allison, don't punch your card," and
grabbed it, adding "Allison, I want your machine this morning." Shumack said, "Of
all the machines you've got, you want just mine?" Bowman replied, "Yes, I got a
girl to go on your machine. I think you want off for a while, I'll let you off."
Bowman indicated that she "would fix it" so that Shumack could get unemployment
compensation.
Although apparently available, Bowman was not called to testify. Boyle's testi-
mony on this matter was that Bowman told him she would like to put a Mrs.
DeForest in Shumack's place because Shumack was pregnant and would be "leaving
soon"; that DeForest had no means of support and "would need the job." Boyle
told her to do it if she thought it would help production.
According to Couch's testimony, the union meeting at her home Monday night,
February 18, was arranged on the preceding Saturday and Sunday.31 She and her
sister had spent Sunday afternoon driving to people's homes in Escawtawba,
Mississippi, near Pascagoula, inviting them to attend. About 25 people attended,
among them being the Boilermakers' business agent, Wallace.
About 4 p. in. on February 19, Couch was told by Gilley that Bowman wanted
to see her in the supervisor's restroom. Alone there with Bowman, the latter asked
if Couch was satisfied with her job and if she wanted to work. Couch answered
80 All the employees herein affirmatively and credibly denied on the stand any participa-
tion in violence and misconduct connected with the strike See Rubin Bros. Footwear,
Inc, 99 NLRB 610.
31 Although the specific purpose of the meeting is irrelevant, Couch testified that it
was to discuss the layoff of her sister, Odean Bullock. The evidence shows that Bullock
was not terminated until 4 days after the meeting.
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
both inquiries in the affirmative , explaining that she was putting two boys through
high school. Bowman commented that the best thing for Couch to do if she did
not like her job was to quit. Couch then asked if it was Bowman 's purpose to
discuss the meeting that had been held at Couch 's home the night before . Bowman
replied, "Well , Peterzell & Gelles 32 couldn 't operate up north-with the union "
She also commented that Couch was not only hurting herself , but that she was
hurting hundreds of others . Couch replied in effect that she was not trying to hurt
anyone, that Respondent 's employees were adults and could think for themselves.
Couch asked Bowman , "What do you want me to do ? Do you want me to quit
or are you going to fire me?" The conversation broke up with a statement from
Bowman to Couch to make up her mind as to what she wanted to do and to let
Bowman know her decision . Couch replied that she wanted to work.
As indicated , Bowman did not testify . Gilley testified that she went into the rest-
room and heard Bowman say, "Well , Mattie, if you are so dissatisfied with your
work , why don't you find work somewhere else, or just not come in any more?"
Couch asked , "Well, am Ito consider myself fired ?" Bowman replied , "No," where-
upon Gilley "turned and went right back out ." Couch's testimony was undenied and
not inconsistent with what Gilley heard. I credit Couch.
At the start of work the following day, February 20, according to Couch's further
testimony , Bowman asked her if she would train a girl on the next machine which
had been the one operated by Shumack . She did so , being placed on timework so
as to be able to help the new girl. At about 11:10, Bowman told Couch she was
wanted by Nicholas in the office . There Nicholas asked her if she understood
she was to have been laid off the previous day. She replied she did not . Nicholas
said, "Well , let me tell you. Maybe you can understand me." She said , "Yes, sir."
Nicholas then told her she was being laid off for talking-that she could not very
well do her work if they all sat and talked , and that she was being laid off as an
example to the others . He also said that the girls were "making good down there"
and showed her some rates effective in Respondent 's Piqua, Ohio , plant.
According to Nicholas ' testimony , the Friday before Couch 's termination he had
called the plant together to discuss the amount of time that was being wasted by
leaving machines to walk around the plant and talk. He warned the employees
that excessive talking must be stopped . On the following Tuesday, in making a
customary check on operations , he noticed that Couch "was talking for about
10, 15 minutes to other people who were working and answering her, but there was
a general talk, and she wasn't doing anything except talking to them ." Nicholas
called Bowman over and "explained to her that she had better talk to that young
lady," that he was past the fooling stage. Bowman said she would.
Returning from a 30- to 45-minute tour of the plant , Nicholas looked over and
found that Couch was still talking Nicholas further testified as follows
And I called Vickie Bowman over and I said, "Vickie, I thought I told you
to speak to her." She says , "You did."
I said, "Well , what about it? Is she going to keep talking , or is she going
to stop talking7"
And Vickie just shrugged her shoulders and says, "I hope she stops talking."
I said, "Listen , this isn't a hoping matter . Let's set an example that I am not
fooling, and you go over and just tell her that because of her talking that we
will just have to lay her off."
And she says , "All right, I'll take care of that, but I think it would be better
if I do it a little later on."
I says, "You can suit yourself . The thing I want you to do though is lay
her off because I have warned her, you have warned her; I 've spoken to the
whole mill, and nobody has paid any attention to me. Now let's take care
of this."
The next day , walking through the mill , to his apparent amazement "here was
this girl still talking and still there ." He called Bowman and said, "Vickie , I thought
I told you to lay this girl off. She's still talking , and nobody is paying any attention
to me, and now not even to you." Bowman replied that she had laid Couch off
but the latter had come in to work anyway . Nicholas said, "I think that I will
have to lay her off if no one else can around here ." So he asked Couch to come into
the office. There she admitted that he had spoken about excessive talking, and
that Bowman had spoken to her about it. She said she was sorry , and Nicholas
said he was sorry too because he had to lay her off to let people know he meant
what he said.
32 Peterzell & Gelles was the piedecessor of Respondent in the operation of the plant
B. V. D. COMPANY, INC. 1451
As for Bullock, her testimony was that she had started working in the plant when
.it had first opened and had worked in practically every operation. In January, she
had been moved with another employee from boxing and folding into the shipping
-department by Boyle. She remained there a week and was laid off. A week later,
Bowman called her back in boxing. She worked under Bowman until Wednesday
noon, February 20, when Boyle again put her in the shipping department. She
worked there until Friday , when Boyle again laid her off because of changes that
were being made, telling her he would call her back when the changes were com-
pleted. She asked Boyle if she should apply for unemployment compensation, and
he said she should. Bullock testified that there was a "good bit of work " in Bow-
man's department when she was taken out of it.
There is no substantial conflict with Boyle 's testimony He denied knowledge
of the meeting at Couch's house, and gave as the reason for both of Bullock's above
layoffs as shortage of work.
The common basis for the charge of discrimination by Respondent against the
above three employees is their initiative and participation regarding the innova-
tion of union meetings in private homes. It appears that other home meetings fol-
lowed the one at Couch's house Also , prior and subsequent to the meeting at
Couch 's house, a few employees wore union buttons in the plant. Nevertheless, the
only discrimination alleged ( except that in connection with the strike activity) per-
tains to these three employees.
In the light of these facts, let us examine Respondent 's defenses as to the
termination.
Talking apparently was so customary and wide -spread in the plant that the entire
work force had to be cautioned about it Then , out of some 350 employees, the 1
who happens to be disciplined , and the only 1, is the 1 at whose house the first
union meeting is held.
The circumstances, as revealed by Nicholas ' uncorroborated testimony , leading
up to Couch 's termination are subject to the same flavor of unreliability that char-
acterized so much of his testimony . There is a sense of exaggeration and glibness
about it that makes it suspect on its face For instance , that Couch could have
been talking from 40 to 60 minutes to other employees , who themselves kept on
working and were not also guilty, seems hard to believe . Moreover, Nicholas'
restraint under the almost exasperating conduct of Bowman in the matter seems
incongruous . Having found Couch still talking after having been specifically
warned by Bowman , and having ordered Bowman then and there to discharge her,
it is incredible that Nicholas would agree to Bowman 's suggestion that it would be
better if she did it later on. Presumably , they allowed Couch to continue talking!
Added to this difficulty with Respondent 's position is the inconsistency between
Respondent's avowed purpose to make an example out of Couch and Respondent's
actions. Having had the excellent opportunity to point up Respondent 's concern
about talking by making a point of it with Couch in front of the employees , Nicho-
las not only let 1 but 2 opportunities slip. Having found Couch again vulnerable
the next day , instead of making her a timely and graphic example right in front of
the employees Nicholas took her into the privacy of his office to inform her she
was being laid off for talking.
With respect to Shumack, the first observation is that such a peremptory and
arbitrary dismissal of an old employee certainly is subject to some question. Bow-
man's apparent request for authority to lay off Shumack was, of course , superflu-
ous, since she needed no such authority . The explanation that Shumack would be
leaving soon because of her pregnancy was premature , to say the least. When she
testified before me almost 7 months later, Sumack had not yet had her baby.
As for Bullock , there is evidence that changes were being made, and that as a
result temporary lapses in various operations may well have occurred . However,
there is no indication that these changes had reached the point where the future
need for Bullock's services had become so remote that she could count on unem-
ployment of sufficient duration to warrant her applying for compensation. A week
or so previous to this, such had not been the case.
All indications would seem to point to a contrary conclusion . Thus, it appears
that on April 21 , a night shift had begun operations . Between February 22 and
April 21, the Respondent recalled 3 women and had at least 2 new hirings.
On April 21, the record shows 21 new hirings and 3 recalls . There is nothing on
the record to show whether at the time of Bullock's last termination the night shift
was being planned by Respondent . However, the fact that Bullock was not called
back in spite of all this hiring is significant.
The foregoing considerations , in my opinion , negative the bona fides of Re-
spondent 's defense. The explanation regarding these three employees contains
unexcused and unexplained aberrations which nullify its effectiveness and point to
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a rationalization on the part of Respondent to cover some other purpose. That
purpose, I conclude, was connected with the part these three employees played
in the first home union meeting, and was to eliminate them as employees for that
reason.
Respondent's contention that it had no knowledge of the occurrence of the meeting
at Couch's house is rebutted by reason of Bowman's knowledge thereof, as revealed
by her conversation with Couch on February 19. Furthermore, the tenor of that
conversation shows that Bowman had knowledge of the meeting before she spoke
to Couch that afternoon. Knowledge may also be inferred by reason of the small-
ness of the community and the plant.33
2. Bernice Gunter
Gunter testified that she continued to work during the original picketing and during
the interim of the court proceeding. On the day picketing was expected to resume,
Gunter went to Nicholas and Boyle to tell them her husband did not want her to
cross the reestablished picket line. Boyle told her that she was a good worker and
he was sorry to have her quit. Remembering that she had mentioned something
a few days before about being ill, Boyle suggested that she take sick leave. Nicholas
seconded the suggestion, telling her not to "say anything about it; just take sick
leave." 34 '
Having already told Udell Noff, her foreman, that she would not cross the picket
line if it was reestablished, she felt she ought to tell him that Nicholas told her to
take sick leave. She so informed him. Later, having gone back to work apparently
to finish out the day, an unidentified girl came over and informed her that Noff had
told her about Gunter's sick leave deal.
Boyle's testimony about the matter in substance denies that Gunter's sick leave
suggestion arose out of any information from her that she did not want to cross the
picket line, but was based solely on Gunter's claim of illness. However, it appears
that Respondent soon became aware of Gunter's concern about the picket line.
According to Boyle's further testimony, soon after the suggestion had been made
that Gunter go on sick leave, Boyle received the "electrifying report" that the sick
leave suggestion had been made to Gunter to hide the fact that her husband did not
want her to cross the picket line. Boyle immediately called Gunter on the telephone
and accused her of misrepresenting the matter. Gunter then informed Boyle of her
husband's wishes. Boyle replied that that was a matter between Gunter and her
husband, and asked if she was coining in to work or not. Gunter answered, "Oh,
my husband doesn't want me to cross the picket line, and I'm a little bit sick." Boyle
said, "Well, look, if you're not coming in to work, I'm going to take steps to replace
you." Gunter did not come in.
The following Monday, May 19, Gunter asked Boyle to take her back to work.
Boyle told her she had already been replaced, but that he expected to have an opening
"very shortly" and would call her back.
About a month later, according to her testimony, Gunter again asked Nicholas
and Boyle if they had any work for her. Nicholas told her that she was the one that
had given him so much trouble "telling over the mill" that he had given her sick
leave, and told her to "wait until it was all over, and he'd see about it."
Between May 20 and June 10, Respondent hired approximately 37 new women
employees and recalled 2 former employees. Also, between June 10 and July 23,
Respondent put to work about 29 other new women employees.
There is no contention by Respondent that Gunter was not reinstated because of
Respondent's conviction that she misrepresented the facts of her leaving on May 14.
It is clear from Boyle's testimony that assuming Gunter had misrepresented the
matter (which I find it unnecessary to determine), he nevertheless thereafter indi-
cated his willingness to continue her employment and asked her what she was going
to do. Boyle learned that she was not going to cross the picket line. A few days
later, having changed her mind, Gunter unconditionally sought reinstatement, to
which as an unfair labor practice striker she was entitled regardless whether a re-
placement had been hired for her or not.35 Accordingly, by refusing to reinstate
33 Jasper National Mattress Company , 89 NLRB 75.
34 It is clear from Boyle's testimony on the matter than Gunter meant to imply in her
testimony that it was the picket line considerations she was not to mention.
35 Dalton Telephone Company , 82 NLRB 1001 ; Consolidated Frame Company , 91 NLRB
1295 ; N. L. R. B. v Mackay Radio & Telegraph Co., 304 U. S 333
B. V. D. COMPANY, IN C. 1453
Gunter when she unconditionally requested reinstatement on May 19, 1952, Re-
spondent discriminated against her in violation of Section 8 (a) (3) and ( 1) of the
Act.
3. Hazel Williams
About 1:30 p. in. the day after the clocks' incident, Hazel Williams, working in
the bathing trunk department, was told her husband wanted to see her in the lobby.
He berated her there about her working while the picket line was up, saying there
was going to be a lot of trouble and he did not want her to get hurt. She said, "Well,
there's not going to be any trouble because Mr. Nicholas says we would be pro-
tected." In any event, Mrs. Williams got permission from Anna Eckert, her super-
visor, to go home with her husband to get his clothes ready to go back to his construc-
tion job in Mobile, Alabama. Before leaving, she informed Eckert she would be
back in the morning.
Returning the next morning, Williams discovered her timecard was missing. She
asked Eckert about it and was told to see Croft. He informed her that they had
heard what her husband had said to her in the lobby the day before. She replied
in effect that her husband's conclusions were not hers, adding, "I haven't signed
a union card and I didn't go out with the union girls." Croft told her, "Sit down
out there and we'll talk to you." Williams declined, saying, "Well, you pulled my
card so I'm going home." Croft commented, "Suit yourself."
These facts, I find, are insufficient to support the General Counsel's allegation that
Respondent discriminated against Williams on April 23.
4. Nellie Rouse
The General Counsel alleges Rouse to have been discriminated against by reason
of being discharged because she refused to cross the picket line. This is controverted
by Respondent's evidence. Since Rouse, being an unfair labor practice striker, is
entitled to reinstatement and back pay from the date she made unconditional applica-
tion for reinstatement, and since the remedy would be no different if I resolved the
above conflict in her favor, I see no reason to dispose of the issue.
5. Abry Smith
Smith is alleged to have been discriminated against by Respondent on or about
April 23. No evidence having been offered to sustain this allegation , its dismissal
will be recommended.
D. Interference , restraint, and coercion
I find the following conduct on the part of Respondent to constitute independent
violations of Section 8 (a) (1) of the Act.
1. Bowman's statement to Couch on February 19, that Peterzell and Gelles could
not operate up North with the Union and that Couch was not only hurting herself but
she was hurting hundreds of others.
2. Sometime in March, Supervisor Leona Small asked employee Annie Bryant
where her union button was. Bryant told her she did not have one. Small replied
that Bryant was like the rest of the girls, including herself, that (in substance) the
mill had meant bread and butter to them too long.
3. In February Supervisor Overstreet commented to Dolores Wilson about Bessie
Bush wearing a union button to the effect that Bush didn't know what she was do-
ing; that the Union had tried to come into the plant before and had failed; and that
usually people who had anything to do with the union campaign lost their jobs.
4. The morning of April 22, before the clocks' incident occurred, Claire Beasley,
according to her credited testimony, had told Floorgirl Evelyn Johnson about the
group going up to see Nicholas.36 Johnson then talked to Gilley who came right
over to Beasley saying, "Claire, I hear you all-I heard some of the girls say you all
are planning a walkout this morning." Beasley replied that they were not planning
a walkout and testified as follows:
And she said, "Well, what were you going to do?" I said, "We are going
to go to Mr. Nicholas' office and talk to him."
And she says, "Why do you have to go to talk to him? I'm your supervisor.
Why don't you talk to me?"
And I says, "Well, this is about things that I don't think you can handle."
se Although Johnson took the stand she was not questioned about the matter. Gilley's
version, which I ieject, was quite different
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
And she said, "I know what things you are talking about . It is about the
union." And she says, "It 's no good, and it's going to do nothing but get you
into trouble ." And she says, "If you hang around with Ruth Miley and that
bunch of union girls here in the mill ," she says, "it is going to get you into deeper
trouble."
5. During the last week of July, as a result of the mill closing down , a public
meeting was called by unidentified persons to find out why an election could not be-
held. This meeting took place in the evening at the old courthouse grounds in
Pascagoula . Bush and several other union adherents attended, arriving after the
meeting had started. On the platform, apparently presiding or at least calling on
people to speak and trying to keep the crowd quiet, was Gilley.
When Bush arrived Gilley was saying , "Where's some of those union men that
said they were going to be here and tell us why we couldn' t have an election. We
want to know why we can't have a vote." She also said , "Where's the people that's
supposed to come up here and tell us about this ; we called them and went and visited
them and asked them to come, and they said they would. There are more here.
What is the matter? They scared?"
While the above facts fall short of proving that the Respondent instigated the
above meeting , they do prove by reason of Gilley's conduct which is attributable to
Respondent that Respondent overstepped the bounds of neutrality required of it at
this stage of the matter thus interfering with the right of its employees provided for
in Section 7 of the Act.
6. About the middle of August under a settlement agreement entered into with-
out prejudice Respondent called back to work 49 employees . Apparently as a re-
sult of this agreement and action the following notice had been posted on all plant
bulletin boards:
NOTICE
IN ACCORDANCE WITH THE NATIONAL LABOR RELATIONS BOARD,
RULING, THERE WILL BE NO SOLICITING BY UNION OR NON-
UNION EMPLOYEES OF THE B. V. D. CO. INC. CONCERNING UNION
AFFAIRS DURING WORKING HOURS ON MILL PROPERTY. THE
PENALTY FOR SO DOING WILL BE IMMEDIATE TERMINATION OF
EMPLOYMENT.
(S.) D. Nicholas.
D. NICHOLAS.
B. W.
When Bush and a group of employees resumed work under the August agree-
ment the matter of union solicitation and discussion was gone into with them by
Boyle. According to Bush's testimony , Boyle told them there was to be no union
discussion on company property or time. Bush objected, saying that her under-
standing was that they would talk about the Union during their free time. Boyle
replied that the way he had stated it was ",... the way I understand it. But we do,
want to abide by the law."
Boyle's testimony was that Bush told him that the Board field examiner had told
the employees they could discuss the Union during rest periods. Boyle's comment
was that the employees should be governed by what the field examiner had told
them but that he would check and if he found their information to be wrong he
would tell them. Boyle explained in his direct testimony that he knew what the
law on the subject permitted but that he believed that the field examiner wanted
union discussion stopped in the plant entirely because the situation was so "inflam-
mable." On cross-examination he testified that he would "feel better" if the
employees did not discuss the Union at any time in the plant and felt that the
above notice ( which had been prepared by the Board field examiner) was to
effectuate that purpose.
In this posture, I have no difficulty in crediting Bush's version . Boyle, having
checked the matter with the Board officials and not having taken any steps to correct
the order he gave the employees , interfered with and restrained the employees by
his conduct.
7. According to the undenied , credited testimony of Rouse, on August 21 , Rouse,
who had been working about a week under the settlement agreement , was told by
her supervisor , Small, that Boyle wanted to see her in the office. There, Boyle said,
"Well, Nellie, I want to talk with you about some things." Boyle then asked her if
she had gone up to the clocks with the committee on April 22. Rouse said she had
not. Boyle said he had heard the contrary . Rouse reiterated a positive denial.
Boyle then asked if she had been to the union meeting on the night of the 21st.
B. V. D. COMPANY, INC. 1455
Rouse said she had . Boyle asked if she had heard the girls talking about going
up to the clocks the next morning to talk to Nicholas . Rouse told him she had not.
Under different circumstances the above interrogation might have been permis-
sive 37 Under the circumstances herein I find it to be coercive.
E. The unconditional offer to return to work
On June 12 Respondent received the following letter signed by individual
employees:
B. V. D. COMPANY INC.
Pascagoula , Attn. Mr. Nicholas
GENTLEMEN : This is to advise you that we hereby offer to return to work
for the company unconditionally and immediately . We can be contacted at
the address opposite our name.
Very truly yours
Because Respondent did not think the letter was sincere no attempt was made
to contact the individuals or the union officials about it.
Rejecting Respondent 's explanation as to why the good faith of the letter was
doubted and the letter disregarded , I find the letter to have been a bona fide un-
conditional offer to return to work on the part of the employees . By Respondent's
failure to honor the employees' letter and to offer them immediate reinstatement
Respondent prolonged the already existing unfair labor practice strike and dis-
criminated against the employees in violation of Section 8 (a) (3) and ( 1) of the
Act.38
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above , occurring in connec-
tion with the operations of Respondent set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic , and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V THE REMEDY
As it has been found that the Respondents have engaged in unfair labor prac-
tices, it will be recommended that the Respondents cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
It has been found that Respondent violated the Act by discriminating with respect
to the hire and tenure of employment of various employees named in Appendix C
herein. It will be recommended that Respondent make them whole for any loss
of pay they may have suffered by reason of Respondent 's discrimination against
them , by payment to each of them a sum of money equal to the amount each would
normally have earned as wages from the date the discrimination occurred against
them , as set forth opposite their names in Appendix C 39 until such time as they
were reinstated or are offered reinstatement less their net earnings during that
period40 Should it be necessary Respondent shall dismiss any replacement hired
after April 22, 1952.41 The pay loss involved , if any, shall be computed in the
manner established by the Board in F. W. Woolworth Company , 90 NLRB 289.
In addition , I will recommend , in accordance with the Woolworth decision, that
Respondent upon request , make available to the Board and its agents all records
pertinent to an analysis of amounts clue as back pay.
Since Respondent has restrained , coerced, and interfered with its employees in
the exercise of their rights under the Act, and has also committed acts of discrimi-
nation with regard to the hire and tenure of employment of its employees, the
37 Not only had the complaint been issued at this time but the hearing was already
under way . There is no contention by Respondent that this interrogation was for the
purpose of preparing its case Nor was there any such indication to Rouse.
38 Consolidated Frame Company, supra.
80 In addition to those who were discharged and had no obligation to seek reinstate-
ment are included those who participated in the strike and who made an unconditional
offer to return to work. Of the latter only those employees who informed Respondent
they were not going to cross the picket line or who actually engaged in picketing are in-
cluded in this recommendation
4' Ci ossett Lumber Company, 8 NLRB 440
11 Crowley 's Milk Company, Inc. (Paterson Division), 102 NLRB 996
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
latter a form of unfair labor practice which has been held to "go to the heart of
the Act," I am convinced that there is a danger of a repetition by Respondent of
unfair labor practices directed against its employees. In order, therefore, to make
effective the interdependent guarantees of Section 7 of the Act, to prevent a recur-
rence of unfair labor practices, and thereby minimize industrial strife which burdens
and obstructs commerce, and thus to effectuate the policies of the Act, I will recom-
mend that Respondent cease and desist from in any manner infringing upon the
rights guaranteed employees in Section 7 of the Act 42
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. International Ladies' Garment Workers Union, AFL, is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire, tenure, and conditions of employment
of the employees named in Appendix C herein, thereby discouraging membership
in the Union, Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) and 8 (a) (1) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
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 (a) (1) of the
Act.
4. 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.]
43 May Department Sto' es v. N. L. R. B, 326 U. S 376 , affg, as mod . 146 F 2d 66
(C A 8), enfg 53 NLRB 1366.
Appendix A
Claire Beasley___________ 4-22-52 Gracie Clark____________ 4-22-52
Bessie Bush_ ____________ 4-22-52 Inez Reeves_____________ 4-22-52
Louise Peden___________ 4-22-52 Vadis Peden ------------ 4-22-52
Alda Renfroe___________ 4-22-52 Clara Davidson---------- 4-22-52
Ruby Lee Goff_________ 4-22-52 Elizabeth Mills---------- 4-22-52
Lona Pace_____________ 4-22-52 Lena May______________ 4-22-52
Ethel Baker____________ 4-22-52 Gladys Scovel___________ 4-22-52
Juanice Hill____________ 4-22-52 William V. Vice_________ 2-11-52
Fannie Smith ___________ 4-22-52 Mattie Couch___________ 2-20-52
Ruthie M. Faggard______ 4-22-52 Odean Bullock__________ 2-20-52
Ona Lee Lynn__________ 4-22-52 Allison Shumack________ 2-20-52
Mary Cranford---------- 4-22-52 Hazel Williams---------- 4-22-52
Ina Goff_____ __________ 4-22-52 Abry Smith_____________ 4-23-52
Lela Pope______________ 4-22-52 Nellie Rouse____________ 4-26-52
Lucy Heflin_____________ 4-22-52 Bernice Gunter__________ 5-14-52
Annie Bryant________ ___ 4-22-52 Vickie Bowman_________ 2-20-52
Appendix B
Mary Evelyn Goff Sallie Shumake Alda Renfroe
Helen Pierce Lena May Gladys Scovel
Annie Miller Bernice Gunter Claire Beasley
Francis Nellums Lucy Heflin May Goff
Rose Herndon Allison Shumack Lona Pace
Rose Furby W. V. Vice Juanice Hill
Nellie Rouse Ruby Vice Ruthie M. Faggard
Hazel Williams Ruby Lee Goff Ona Lee Lynn
Abry Smith Elizabeth Mills Gracie Clark
Lillie Smith Annie Bryant Inez Reeves
Leonard Swearinger Lela Pope Fannie Smith
Aileen Swearinger Vadis Peden Mattie Couch
V. C. Vernon Louise Peden Odean Bullock
Frances Vernon Mary Cranford Claudia H. Pike
Seth Ethredge Delmar Ashley Dolores Wilson
Mildred Burchfield Clara Davidson
Lula Mae Elam Bessie Bush
ALEXANDER MANUFACTURING COMPANY
Appendix C
1457
Ruthie M. Faggard------ 4-22-52
Ona Lee Lynn ---------- 4-22-52
Gracie Clark ------------ 4-22-52
Inez Reeves------------- 4-22-52
Fannie Smith ----------- 4-22-52
Elizabeth Mills---------- 4-22-52
Mattie Couch ----------- 2-20-52
Odean Bullock ---------- 2-22-52
Delmar Ashley ---------- 6-12-52
Mary Evelyn Goff ------- 6-12-52
Bernice Gunter ---------- 5-19-52
Allison Shumack-------- 2-19-52
Annie Bryant ----------- 4-22-52 Helen Pierce ------------ 6-12-52
Lela Pope-------------- 4-22-52 Annie Miller ------------ 6-12-52
Vadis Peden ------------ 4-22-52 Rose Herndon ----------- 6-12-52
Louise Peden ------------ 4-22-52 Rose Furby_____________ 6-12-52
Mary Cranford ---------- 4-22-52 Nellie Rouse ------------ 6-12-52
Clara Davidson---------- 4-22-52 Hazel Williams -------- -- 6-12-52
Bessie Bush------------- 4-22-52 Dolores Wilson ---------- 6-12-52
Alda Renfroe----------- 4-22-52 Abry Smith------------- 6-12-52
Gladys Scovel----------- 4-22-52 Leonard Swearinger-_---- 6-12-52
Claire Beasley ------------ 4-22-52 Aileen Swearinger_--___- 6-12-52
Lona Pace-------------- 4-22-52 V. C. Vernon----------- 6-12-52
Juanice Hill------------- 4-22-52 Frances Vernon--------- 6-12-52
Lucy Heflin_____________ 4-22-52 Seth Ethredge----------- 6-12-52
Ruby Lee Goff ---------- 4-22-52 Mildred Burchfield------- 6-12-52
Lena May-------------- 4-22-52 Sallie Shumake---------- 6-12-52
Ina Goff_______________ 4-22-52 Francis Nellums--------- 6-12-52
Ethel Baker------------- 4-22-52 Lula Mae Elam ---------- 6-12-52
ALEXANDER MANUFACTURING COMPANY and INTERNATIONAL BROTHER-
HOOD OF BOILERMAKERS, IRON SHIPBUILDERS AND HELPERS OF
AMERICA, AFL. Case No. 15-CA -493. December 14, 1954
Decision and Order
On May 19, 1953, Trial Examiner Lee J. Best issued his Interme-
diate Report in the above-entitled proceeding finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices in violation of Section 8 (a) (1), (3), and (5) of the Labor
Management Relations Act, as amended, and recommending that the
Respondent cease and desist therefrom and take certain affrmative
action, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter the Respondent filed exceptions to certain of the
Trial Examiner's rulings as well as exceptions to the Intermediate
Report, together with a supporting brief. The General Counsel filed
exceptions to the Intermediate Report as well as to the Trial Ex-
aminer's failure to find certain instances of additional violations of
• the said section of the Act, together with a supporting brief.
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 In-
termediate Report, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
110 NLRB No. 210.
338207-55-vol . 110-93