Carolina Mills, Inc.

National Labor Relations Board - Board Decisions

Jan 3, 1951

92 N.L.R.B. 1141 (N.L.R.B. 1951)

In the Matter of CAROLINA MILLS, INC. and TEXTILE WORKERS UNION
OF AMERICA, CIO
Case No. 34-C.4-97.-Decided January 3, 1951
DECISION AND ORDER
On August 23, 1950, Trial Examiner Allen MacCullen issued his.
Intermediate Report in the afore-mentioned 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. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair labor
practices as alleged in the complaint, and recommended that these
particular allegations in the complaint be dismissed.,
Thereafter the Respondent filed exceptions to the Intermediate
Report and a supporting brief. The Respondent's request for oral
argument is hereby denied as the record, exceptions, and briefs, in
our opinion, adequately present the issues and the positions of the
parties.
The Board 2 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.3
1 No exceptions were filed to so much of the Intermediate Report as recommends that
certain allegations in the complaint be dismissed. Accordingly, we shall adopt these
recommendations without passing upon the issues involved.
2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Members Houston, Reynolds,
and Styles].
3 The Respondent moved, .at the reopened hearing, to dismiss the complaint in its
entirety because the Respondent had previously entered into an agreement with the
General Counsel settling the matters alleged in the original complaint . The Trial Examiner
denied this motion and, over the Respondent 's objections , permitted the General Counsel
to file an amended' complaint , and reopened the hearing . The Respondent excepts to the
above rulings of the Trial Examiner.
The hearing upon the original complaint was held on April 3, 1950 (the Trial Ex-
aminer inadvertently stated that it was held on March 20, 1950.) At that time, the
Respondent and the General Counsel executed an agreement settling the matters alleged
in the original complaint. This agreement was not to become effective until approved
by the Board. The Board has not approved the settlement agreement.
It is the Board's usual policy to honor settlement agreements reached with the con-
currence or approval of a Board agent. Wooster Brass Company, 80 NLRB 1633. How-
ever, where, as in the present case, the agreement has been breached or unfair labor
practices have been continued in such a way that effectuation of the Act's policies requires
92 NLRB No. l68.
1141
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the Respondent's exceptions and brief, and
the entire record in the case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner to the extent
that they are consistent with the findings and conclusions hereinafter
set forth 4
1. We agree with the Trial Examiner and find that the Respondent 5
interfered with, restrained, and coerced its employees in violation of
.Section 8 (a) (1) of the Act by interrogating its employees as to their
union activity, threatening its employees with reprisals if they en-
gaged in union activity; keeping under surveillance the union meet-
ings and activities of its employees, and denying the Union the
privilege of distributing union literature on the Respondent's
premises.7
2. The Trial Examiner found that the Respondent discharged
Lenda K. Starr on December 6, 1949, in violation of Section 8 (a) (3)
of the Act. We do not agree.
The Respondent contends that. Starr was called before James,
foreman of the weaving department, because of her low production,
and that in the discussion that followed. Starr became angry and quit.
that the Board go behind the agreement , the Board will not be bound by such agreement.
Wallace Corporation v. N. L. R.. B., 323 U . S. 248 ; Olin Industries , Inc., Winchester
Repeating Arms Company Division , 86 NLRB 203 ; Taylor Manufacturing Company , Incor-
porated, 83 NLRB 142 . In any event , the agreement never received the Board 's approval
and therefore , by its own terms , never became effective . Accordingly , we find that the
Trial Examiner properly refused to dismiss the amended complaint.
4 The Respondent 's motion to dismiss the complaint because the CIO, with which the
charging Union is affiliated , was not, at the time of filing the original charges, in com-
pliance with the filing requirements of the amended Act is without merit. J . H. Rutter-
Rev Manufacturing Company, Inc., 90 NLRB 130.
We find, as did the Trial Examiner , that the second hands, William Snipes, James
Hewitt , and Rhonda McLaughlin , are supervisors within the meaning of the Act. The
second hands assigned employees to work, transferred them from job to job , sent em-
ployees to rest , and were responsible to management for the proper operation of the
weave department during their respective shifts. Moreover, the Respondent ' s counsel, in
discussing the supervision , exercised by the second hands, stated at the hearing, "We
don't deny that second hands do have supervisory authority."
9 The Trial Examiner found that the statement of Walters , the overseer on the second
shift in the carding and spinning room, to employee Cook "If the Union got it , why they
would work us harder . We wouldn ' t have no chance to smoke, if we wanted to, nor
nothing , and we would have to be right on our jobs eight hours" was not coercive but
merely Walters ' views or opinions . Because no exceptions were filed to this finding,
we shall, without adopting the Trial Examiner 's rationale , not base any unfair labor
practice findings upon this incident . Nor do we, contrary to the Trial Examiner, base
any unfair labor practice findings upon the statement made to employee Huffman by
second hand Hewitt "I hear some of the hands are signing with the Union . I don't
know whether you are or not, but I advise the best thing to do if you have is to tear
up your slip and tell them you don ' t want any part of the Union." We find that this
statement is merely an expression . of an opinion protected by Section 8 (c) of the Act.
Tennessee Valley Broadcasting Company, 83 NLRB 895.
7 N. L. R. B . v. LeTourneau Company of Georgia, 324 U. S. 793 . Maryland Drydock
Co., 183 F . 2d 538 ( C. A. 4) is distinguishable as none of the factors relied upon by the
court in that case are present here.
CAROLINA MILLS, INC. 1143
The Trial Examiner found that the Respondent discharged Starr, or
at least constructively discharged her by intentionally provoking her
into quitting. Although we agree with the Trial Examiner's finding
in this respect, we do not believe that his additional finding that the
discharge resulted from Starr's union activity is supported by the
record.
The first overt organizational activity occurred on the night of
November 27, 1948, when 10 employees, including Starr, met with a
union representative at the home of Millie Hewitt. These 10 em-
ployees thereupon became the union organizing committee. The next
union meeting was held on the afternoon of December 4, 1948, at
Starr's home. More than 25 employees attended this meeting. The
Respondent discharged Starr on the morning of December 6. In at-
tributing to the Respondent knowledge of the organizational activity
and Starr's participation therein, the Trial Examiner relies upon the
testimony of Starr that during the December 4 meeting at her home,
she saw Foreman Yancey, Overseer White, and employee Benfield
drive by her house and observe the meeting.
Although the Respondent discharged Starr 2 days after the union
meeting at her home, we do not believe that the record establishes by
the requisite preponderance of the evidence that the Respondent knew
on December 6, of either the Union's organizational activity or Starr's
participation therein. Although it is clearly established that the
Respondent engaged in surveillance of subsequent union meetings, we
have only the uncorroborated and highly equivocal testimony of Starr
herself that there was surveillance of the December 4 meeting.8 Nor is
there any clear evidence of unlawful interrogation or threats of re-
prisal by the Respondent until it was informed by Starr, 2 days after
her discharge, of the Union's presence in the plant.
As the record fails to establish by a preponderance of the evidence
that the Respondent at the time of her discharge had notice of Starr's
union activities, we cannot say that her discharge was for discrimina-
tory reasons. Accordingly, we shall dismiss that part of the com-
plaint which alleges that the Respondent violated Section 8 (a) (3)
of the Act by discharging Starr.
3. The Trial Examiner found that the layoff in January 1949 was
for economic reasons. He further found, however., that the Respond-
ent, in selecting the employees to be laid off, utilized the economic
8 In response to the Trial Examiner 's inquiry as to when Yancey , White, and Benfield
drove by her house, Starr testified , "I am positive that it was December 4, but just won't
give it, I just won ' t swear that was positively the date , but I believe that it was. " Yancey,
White, and Benfield denied the incident . Without discrediting Starr's testimony , in view
of her own indecision , we are unable to base a determination , therefore ,, as to the precise
meeting at which this surveillance occurred.
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shutdown of one of its shifts to rid itself of certain union members.
We agree.
At the time of the January layoff, the Respondent, unlike the situa-
tion on December 6 when it discharged Lenda Starr, was fully aware
of the organizational efforts on the part of its employees and of the
identity of the more active participants. The Respondent admits that
it obtained knowledge of the union activity in the plant subsequent to
Starr's discharge. That it had ascertained the identity of many of the
union members is clear from the course of interrogation as to union
membership, and the surveillance of union meetings. Further, the
Respondent had demonstrated, by the above acts and by threatening
its employees with economic reprisals if they brought the Union into
the plant,9 that it intended to prevent the unionization of its plant.
During the course of the above events, the Respondent had occasion
to reduce its working force. However, in selecting the employees to
be laid off, the Respondent, without regard to seniority and lacking
production or efficiency records, laid off 49 percent of the union mem-
bers employed, although only 27:5 percent of all employees in the
plant were union members. In so doing, the Respondent eliminated
the active union members, including all of the members of the union
organizing committee then in its employ."
Upon the entire record before us in this case,1' including the unex-
plained layoff 12 of such a disproportionate number of Union mem-
Prior to the layoff, second hand Hewitt told employee Ethel Blaylock "I would think
seriously before I would go into anything like that. Because they said they would not run
under a Union, because they wouldn't have to." And Overseer White told employee Mamie
Frye, prior to the layoff, that he knew the Union was going to cause them all to lose their
jobs.
10 Two members of the organizing committee, Lerida Starr and Claude Ray Hamby, were
previously discharged for nondiscriminatory reasons.
.11 The entire course of the Respondent ' s conduct must be considered in determining
whether the selection of the employees for layoff was a violation of the Act. N. L. R. B. v.
Vail Manufacturing Cognpany, 158 F. 2d 664 (C. A. 7).
12 The Respondent asserts that it selected Ollie Yough, a union member working on the
first shift, for layoff because she was physically handicapped (deaf and dumb) and could
only comprehend instructions from her mother , Ella Mae Hewitt who, the Respondent
alleges , was selected for layoff for inefficiency and excessive absenteeism . This explanation
would be more plausible were it not for the fact that Yough was working for the Respondent
for 3 years before Hewitt came to work. The Respondent also selected Pearl Bolick from
the second shift for layoff. No explanation was given for laying off this employee, although
she had been employed by the Respondent for nearly 4 years, and seven employees perform-
ing the same work and with less seniority were retained. We consider it significant that
Bolick was a union member and a member of the organizing committee. The Respondent
also accounted for the layoff of five union members in one family by stating that Wilburn
Cook, when advised he was to be laid off, requested the Respondent to lay off the other
four members of his family because they would have no way to get to work. It is in this
manner that the Respondent explained the layoff of Lula Cook and Ozella Cook Honeycutt
from the second shift, while retaining other employees with less seniority. Wilburn Cook's
denial of this incident is credited by the Trial Examiner , which credibility finding we
hereby adopt.
CAROLINA MILLS, INC. 1145
bers,13 we find that the Respondent discriminated against these union
members laid off in January 1.949, in violation of Section 8 (a) (3)
and (1) of the Act.14
The Remedy
We have found that the Respondent has engaged in certain unfair
labor practices. Accordingly, we shall order that it cease and desist
therefrom and take certain affirmative action in order to effectuate the
policies of the Act.
It has been found that although the Respondent discontinued its
third shift for legitimate business reasons, it unlawfully discriminated
in regard to the hire and tenure of those employees named in Appendix
A. attached hereto.- It is possible that some of the employees dis-
criminated against might have been affected in the reduction of opera-
tions even absent the Respondent's unfair labor practice, but the
record furnishes no basis for determining the order in which they
might have been laid off or discharged. Under these cirmustances,
we shall order the Respondent to offer the employees named in Ap-
pendix A immediate and full reinstatement to their former or substan-
tially equivalent positions," without prejudice to their seniority and
other rights and privileges, and, in the event that there is insufficient
work for all such employees entitled thereto, to dismiss, if necessary,
all persons newly hired after the Respondent's discrimination. If
there is not then sufficient work available for the remaining employees
and those to be offered reinstatement, all available positions shall be
distributed among them without discrimination against any employee
because of union membership or activity, in accordance with the sys-
tem of seniority or other nondiscriminatory practice heretofore
applied by the Respondent in the conduct of its business. The Re-
spondent shall place those employees, if any, for whom ho employment
is available after such distribution, on a preferential list, with
priority in accordance with such system of seniority or other nondis-
13 The Respondent laid off 51 of the 56 employees on the third shift . The remaining
5 (only 1 was a member of the Union ) were transferred to the other shifts. The Respondent
also laid off 20 employees from the first and second shifts. Seventy -five percent of these
were union members whereas only 24.7 percent of all the employees on these shifts were
members of the Union. As heretofore noted , no plausible explanation was given for this
disproportionate ratio.
14 F. W. Woolworth Co. v. N . L. R. B., 121 F. 2d 658 (C . A. 2). In that case, 70 percent
of the employees were union members , while 95 percent of the employees laid off were
members of the union . The court found that this "tell-tale" disproportion , coupled with
the employer ' s knowledge of the identity of many of the union members , limply supported
the inference that antiunion discrimination was shown in the discharge . See Montgomery
Ward & Co. v. N. L. R. B., 107 F. 2d 555 (C. A. 7) ; W. C. Nabors Company , 89 NLRB 538;
Differential Steel Car Company, 75 NLRB 714 . Cf. H d H Manufacturing Company, Inc.,
87 NLRB 1373.
15 The Chase National Bank of the City of New York, San . Juan, Puerto Rico Branch,
65 NLRB 827.
929979-51-vol. 92-74
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
criminatory practice heretofore applied by the Respondent in, the
conduct of its business, and thereafter offer them reinstatement as such
employment becomes available and before other persons are hired for
such work.
We shall also order the Respondent to'make whole those employees
against whom it has discriminated for any losses that they may have
suffered because of the Respondent's discrimination, by payment to
each of them of a sum of money equal to the amount that he normally
would have earned as wages from the date of such discrimination to
the date of the offer of reinstatement, or placement on such preferen-
tial list, as the case may be, less his net earnings during said period,16
the back pay to be computed on a quarterly basis in the manner estab-
lished by the Board in F. W. Woolworth Company, 90 NLRB 289.
Earnings in one particular quarter shall have no effect upon the back-
pay liability for any other such period. We shall also order the
.Respondent to make available to the Board upon request payroll and
other records to facilitate the checking of the amount of back pay
due .17
As it is possible, however, that one or more of these employees
might have been discharged in the reduction of the work force even
if the Respondent's selection had been on a nondiscriminatory basis,
this possibility will be taken into consideration in determining the
amounts of back pay due to these employees, in compliance with our
Order herein.''
In view of the nature of the unfair labor practices committed, the
commission by the Respondent of similar and of other unfair labor
practices may be anticipated. We shall, therefore, make our Order
herein coextensive with the threat, and order that the Respondent
cease and desist from infringing in any manner upon the rights
guaranteed in Section 7 of the Act.19
ORDER
Upon the basis of the entire record in the case, and pursuant to
Section 10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that Carolina Mills,
Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging memberhip in Textile Workers Union of Amer-
ica, CIO, or in any other labor organization of its employees, by
16 Crossett Lumber Company, 8 NLRB 440, 497-98.
17 F. TV. Woolworth Company, supra.
"Harold V. Utterback and David A. Schatz, d/b/a U. and S. Lumber Company, 92
NLRB 163 ; Sandy Hill Iron & Brass Works, 69 NLRB 355; Wright-Hibbard Industrial
!'lectric Truck Company, Inc., 67 NLRB 897.
19 See N . L. R. B., v. Express Publishing Company, 312 U. S. 426.
CAROLINA MILLS, INC. 1147
discharging, laying off, or refusing to reinstate any of them because
they have become members of or have been active on behalf of any
labor organization, or by discriminating in any other manner in
regard to hire and tenure of employment or any term or condition of
employment;
(b) Interrogating employees concerning their own or other em-
ployees' union membership and activities, threatening employees with
economic reprisals if they join a union or engage in union activity,
engaging in surveillance of employees in any manner as to their union
activities, prohibiting the distribution of union literature upon its
property during its employees' nonworking time, or in any other man-
ner interfering with, restraining, or coercing their employees in the
exercise of the right to self-organization, to form labor organiza-
tions, to join or assist Textile Workers Union of America, CIO, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, to engage in concerted activities for the
purposes of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities except that such rights
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 to the employees named in Appendix A, attached hereto,
immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or other
rights and privileges, and make them whole in the manner set forth
in the section 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, time cards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of back pay due and the right
of reinstatement under the terms of this Order;
(c) Post at its Plant No. 3, Newton, North Carolina, copies of the
notice attached hereto as Appendix B.20 Copies of said notice, to be
furnished by the Regional Director for the Fifth Region, shall, after
being duly signed by the Respondent, be posted immediately upon
receipt thereof and be maintained by it for sixty (60) consecutive
days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. The Respondent shall
10 In the event this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted in the notice, before the words "A Decision. and Order," the words,
"A Decree of the United States Court of Appeals Enforcing."
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
take reasonable steps to insure that such notices are not altered, de-
faced, or covered by any other material ;
(d) Notify the Regional Director for the Fifth Region in writing;
within ten (10) days from the receipt of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTI-IrR ORDERED that the complaint, insofar as it alleges that
the Respondent discriminated with regard to the hire and tenure of
employment of Claude Ray Hanby and Lenda K. Starr in violation
of Section 8 (a) (1) and (3) of the Act be, and it hereby is, dismissed.
APPENDIX A
Garland Annas
Ethel Starr Blaylock
Vernon S. Blaylock
Pearl Bolick
Rena Mae Bumgarner
Lela Caldwell
Everett H. Cook
Gertie Mae Cook
Lula Cook
Wilburn Cook
Willie R. Cook
Howard L. Edmondson
Maxine Edmondson
Tommie Edmondson
W. H. Edmondson
Cordia Glenn
Vennie Hamby
Carrie Lee Hedrick
Vernon L. Hefnir
Millie Hewitt
Ozella Honeycutt
Ella Mae Hewitt
Willie Moses
Walter E. Poovey
Velma Sanders
Hester Saunders
Lillie Setzer
Condance Shook
Minnie Shook
Sally Shook
Thomas Shook
Earle Starr
Lela Turner
R. P. Underwood
APPENDIX B
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 :
WE WILL NOT discourage membership in, or activities on behalf
of TEXTILE WORKERS UNION OF AMERICA, CIO, or any other labor
organization, by discriminating against employees in regard to
hire and tenure of employment or any term or condition of em-
ployment.
CAROLINA MILLS, INC. 1149
WE WILL NOT interrogate employees concerning their own or
other employees' union membership and activities, threaten em-
ployees with economic reprisals if they join a union or engage in
union activity, engage in surveillance of employees in any manner
as to their union activities, prohibit the distribution of union
literature upon our property during the employees' nonworking
time, or coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist TEXTILE
WORKERS UNION OF AMERICA, CIO, or any other labor organiza-
tion, to bargain collectively through representation of their own
choosing, and to engage in concerted activities for the purpose of
collective bargaining, or- other mutual aid or protection, or to re-
frain 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 author-
ized in Section 8 (a) (3) of the Act.
WE WILL OFFER to the following named employees immediate
and full reinstatement to their former or substantially equivalent
positions, without prejudice to any seniority and other rights and
privileges previously enjoyed, and make them whole for any loss
of pay suffered as a result of the discrimination against them :
Garland Arenas
Ethel Starr Blaylock
Vernon S. Blaylock
Pearl Bolick
Rena Mae Bumgarner
Lela Caldwell
Everett H. Cook
Gertie Mae Cook
Lula Cook
Wilburn Cook
Willie R. Cook
Howard L. Edmondson
Maxine Edmondson
Tommie Edmondson
W. H. Edmondson
Cordia Glenn
Vernie Hamby
Carrie Lee Hedrick
Vernon L. Hefnir
Millie Hewitt
Ozella Honeycutt
Ella Mae Hewitt
Willie Moses
Walter E. Poovey
Velma Sanders
Hester Saunders
Lillie Setzer
Condance Shook
Minnie Shook
Sally Shook
Thomas Shook
Earle Starr
Lela Turner
R. P. Underwood
All our employees are free to become or refrain from becoming
members of the above-named union or any other labor organization,
except to the extent that the right to refrain may be affected by a law-
1.150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ful agreement requiring membership in a labor organization as a con-
dition of employment.
CAROLINA MILLS, 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.
INTERMEDIATE REPORT
John J. A. Reynolds, Jr., Esq. and
Henry L. Segal, Esq., of Baltimore, Md., for the General Counsel.
W. ,C. Blakeney, Esq. and Thomas P. Pruitt, Esq., of Charlotte, N. C., for the
Respondent.
Mr. Bruce B. Davis, of Charlotte, N. C., for the Union.
STATEMENT OF THE CASE
Upon charges duly filed by Textile Workers Union of America, CIO, herein
called the Union, the General Counsel of the National Labor Relations Board,"
by the Regional Director of the Fifth Region (Baltimore, Maryland), issued a
complaint dated February 9, 1950, against Carolina Mills, Inc., Newton, North
Carolina, herein called the Respondent, alleging that the Respondent had engaged
in and was engaging in unfair labor practices within the meaning of Section 8
(a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations.
Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charges,
complaint, and notice of hearing were duly served upon the Respondent and
the Union.
With respect to the unfair labor practices, the complaint alleged in substance
that the Respondent: (1) Since on or about November 1, 1948, urged, pur-
suaded, warned, and coerced its employees to refrain from assisting, becom-
ing, or remaining members of the, Union, threatened its employees with loss of
employment should they join or remain members of the Union or otherwise
assist the Union in its efforts to organize Respondent's employees; ( 2) ques-
tioned its employees as to union activities, kept under surveillance union organ-
izational activities of its employees, and threatened to close down its operations
to discourage union activity by its employees; and (3) on and after December
6, 1948, discriminatorily discharged certain employees and thereafter refused
and failed to reinstate them because they joined or assisted the Union or
engaged in other concerted activities for the purpose of collective bargaining and
other mutual aid or protection. The complaint alleged that by the foregoing
conduct the Respondent engaged in violations of Section 8 (a) (1) and (3) of
the Act.
On February 21, 1950, the Respondent filed its answer, admitting all allega-
tions of the complaint, except those relating to alleged allegations of violations
which it denied.
Pursuant to notice, a hearing was held on March 20, 1950, at Newton, North
Carolina, before John Lewis, a Trial Examiner duly designated by the Chief
Trial Examiner. Upon the opening of the hearing, the Respondent, General
1 The General Counsel and his representatives at the hearing are referred to as the
General Counsel . The National Labor Relations Board is herein called the Board. .
CAROLINA MILLS, INC. 1151
Counsel, and the Union entered into a stipulation proposing to settle all of the
charges against the Respondent, and consenting to an order by the Board, which
stipulation was entered into subject to the approval of the Board. Thereafter,
the Union filed an amended charge alleging that after the stipulation the
Respondent had engaged in other unfair labor practices in violation of Section
8 (a) (1) of the Act in that the Respondent had interfered with and prohibited
the distribution of union literature upon its property during the employees non-
working time. Thereupon General Counsel moved to reopen the hearing, which
motion was granted by John Lewis and the hearing reopened.
Pursuant to notice, the reconvened hearing was held May 22, 23, 24, 25, and
26, and June 7, 8, . and 9, 1950, before Allen MacCullen, the undersigned Trial
Examiner duly designated by the Chief Trial Examiner. The General Counsel
and the Respondent were represented by counsel, and the Union was represented
by its assistant State director, and all parties participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing on the issues were afforded all parties. At the opening of
the hearing, General Counsel asked leave to file an amended complaint omitting
certain of the alleged dischargees named in the original complaint, and adding the
additional violation of Section 8 (a) (1) of the Act included in the last amended
charge filed by the Union. This motion was granted and the amended com-
plaint was filed. Thereafter Respondent filed its answer to the amended com-
plaint, admitting 'certain allegations of the complaint, but denying all allega-
tions charging it with violations of the Act. Respondent then moved to dismiss
the complaint on the grounds that all charges alleged in the original complaint
had been settled. This motion was denied. A motion by General Counsel at the
conclusion of the hearing to conform the pleadings to the proof as to dates,
spelling, and minor variances was granted. All parties waived the right to oral
argument. All parties were advised of their right to file. briefs. Thereafter
General Counsel filed a brief with the undersigned.
Upon the entire record in the case and from observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Carolina Mills, Inc., was incorporated in the State of North Carolina in
December 1928. On March 29, 1947, the corporation merged with the New City
Mill of Newton, North Carolina, and New City Mill became known as Caro-
lina Mills Plant No. 3. In addition to Plant No. 3, the corporation operates
Plant No. 1 at Maiden, North Carolina, and Plants Nos. 2 and 4 located at New-
ton, North Carolina. Plant No. 3 is located in two buildings connected by an
enclosed walkway, and Plant No. 4 is in the basement of one of those buildings.
The corporation is engaged in the production of canton flannel and filter cloth
at Plant No. 3.
In the past 12-month period, the corporation purchased raw materials exceed-
ing $100,000 in value of which more than 50 percent was purchased from points
located outside the State of North Carolina. During the same period the cor-
poration sold finished goods exceeding $150,000 in value, of which over 75 percent
was sold and shipped to points located outside the State of North Carolina.
The undersigned finds that the Respondent is engaged in commerce within
the meaning of the Act.
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATION INVOLVED
Textile Workers Union of America, CIO, is a labor organization admitting to
membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Attempt to organize employees
Thomas W. Shook testified credibly that in October 1948 Respondent increased
the work load on some of the employees by assigning each weaver 32 to 33 looms
in'a set as against only 22 looms previously operated, and at the same time their
pay scale was reduced from 67.2 cents to 46 cents on 100,000 picks ; that 3 or 4
weeks later some of the employees became dissatisfied and the battery hands
and weavers walked off the job; after consultation with the management the
employees were promised that the jobs would be straightened out and they
would receive more money, and they returned to work ; that nothing was done
and the employees asked him to get in touch with the Union in an attempt to
organize the employees, that he contacted the Union in Charlotte, North Carolina,
and later an organizational meeting was held at the home of Millie Hewitt on
November 27 or 28, 1948, that 10 employees 2 and a, representative of the Union
were present, and k an organization committee was formed of the employees
present, and he was made chairman.
Thereafter a very active campaign was waged to organize the employees, and
meetings were held once a week at the home of Lenda Starr, with exception of
the first meeting and one other meeting held at the home of another employee?
B. Supervisory authority of certain individuals
As some question has been raised as to the supervisory authority of certain
employees, the question will be determined first. Respondent stipulated that
Leonard Moretz was its secretary-treasurer and general manager and a stock-
holder ; that in addition to Moretz the following were supervisors during the
period from October 1948 through January 1949:'C. E. Clark, M. T. Poovey,
Ralph James, Lester Yancey, Lester White, and Allen Walters ; that M. T.
i'oovey had not been employed for the past 8 months ; and Allen Walters left
the employ of Respondent in January 1949; that all of the others are still em-
ployed in a supervisory capacity ; that William Snipes was made a supervisor
in October 1949.
General Counsel contends that James Hewitt, Rhonda McLaughlin; William
Snipes, Robert McMurray, and Fred Benfield were supervisors at all times mate-
rial to the original and the amended complaints, which Respondent disputes.
As of November 5, 1948, Respondent employed in Plant No. 3, the only plant
involved in this proceeding, 275 employees, 112 on the first shift, working from
6 a. m. to 2 p. in., 88 on the second shift, working from 2 p. in. to 10 p. in., and
75 on the third shift working from 10 p. in. to 6 a. in. These figures represent
the number of employees after the third shift had been substantially restored
after the layoff in January 1949 referred to herein, and represent the approxi-
2The following employees were present at this meeting: Millie L. Hewitt, Thomas W.
Shook , Ray Hamby , Vernie Hamby , Sally Shook , Pearl Bolick, Walter Poovey , Carrie Lee
Hedrick, Minnie Shook, and Lends. Starr. All of them were on the organization commit-
tee, and the majority were active in organizing the employees.
3 This finding is based on the testimony of several witnesses, principally Lenda Starr,
all of which is credited.
CAROLINA MILLS, INC. 1153
mate number of employees in' December 1948 and January 1949, prior to the
layoff. Leonard Moretz testified credibly that the supervisory hierarchy in
Plant No. 3 from the top down prior to January 6, 1949, was as follows : Leonard
Moretz, general manager; C. E. Clark, general superintendent; M. T. Poovey,
superintendent ; and four overseers, Ralph James in charge of weaving for all
three shifts, Lester Yancey, overseer of carding and spinning for all three shifts,
but working primarily with the first shift, with Allen Walters and Lester White
as overseers of carding and spinning for the second and third shifts respectively ;
that there were no overseers under-James in the weave department that:
The weave operating did not require the changes in assignment that were
frequently necessary in the spinning. The work could be cut out on the first
shift and the one overseer could look after any changes that were necessary
for the three shifts.
Moretz further credibly testified that the rate of production on the second and
third shifts was about the same as on the first shift. He was then asked :
Q. Now on the second and third shifts, who did the functioning in the
weave department in lieu of the overseer?
A. James Hewitt was second hand and in the absence
Q. On what shift, sir?
A. Second shift.
,Q. Second shift. And in the absence of Mr. James functioned as manage-
ment's top representative in the weave department?
A. Within the scope of authority allotted to him, yes.
Q. Now who functioned in a similar capacity on the third shift in the
weave department?
A. Rhonda McLaughlin,
that William Snipes was second hand on the first shift in the weave room under
James, and that the functions of his work were the same as for Hewitt and
McLaughlin ; that the primary functions of the second hand was to keep the
plant in operation, "to keep production from going all to pot," and he was man-
agement's only representative in the absence of the overseer.
Ralph James testified credibly to the obvious fact that he was not present at
the plant all 24•hours of the day, that he devoted the major portion of his time
to the first shift, was present about 3 or 4 hours on the second shift, and would
drop in occasionally two or three nights a week while the third shift was operat-
ing, but he could not estimate the approximate or average time he was present
on each shift.
There was some testimony from employees, which is credited, that they con-
sidered Snipes, Hewitt, and McLaughlin as supervisors. It is clear from all
of this evidence that Snipes, Hewitt, and McLaughlin were management rep-
resentatives in charge of operations on the three shifts, under the general super-
vision of Ralph James, and certainly. in his absence had authority responsibly
to direct the. employees, to assign them to work, and discipline them, or at least
effectively recommend such action. In view of all of these facts, and consider-
ing the size of the plant and the number of employees, I find that William Snipes,
James Hewitt, and Rhonda McLaughlin are supervisors within the meaning
of the Act, and that Respondent is responsible for their actions.'
+ TV. C. Nabors Co., 89 NLRB 538; Morowebb Cotton Mills Company, 75 NLRB 987;
James H. Kearney Corporation, 81 NLRB 26.
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moretz credibly testified that Robert McMurray and Fred Benfield were em-
ployed essentially as mechanics and fixers in the carding and spinning room, that
they were skilled mechanics and they had charge of repairing all of the machinery
in their section, McMurray working under the direction of Allen Walters, over-
seer of the second shift cardroom, and Benfield under Lester White, overseer
of the third shift cardroom ; that if McMurray or Benfield assigned work to
employees, directed them to rest or transferred them from one machine to
another, that they were carrying out instructions from the overseer who was
always present on the job and made the decision. Moretz was asked if the over-
seer made the decision, would he in all cases personally transmit the instruc-
tions to the rank-and-file employee, and replied "I wasn't present all of the time.
I can not say definitely, but it was Mr. White's responsibility to personally
transmit the instructions." Moretz was further asked :
Q. As a fixer, was Mr. McMurray a conveyer of instructions or comment
from supervisory authority?
A. Not as a line of duty.
Q. Could it have been so, despite the fact, as you say, that that might not
have fallen within the normal orbit of his operations?
A. When you deal with human nature, I have learned that the impossible
is frequently done. I say it shouldn't be and wasn't supposed to be.
Annie B. Dula testified credibly concerning Fred Benfield,
A. He is a section boss and fixer.
Q. The section boss and fixer. Did he tell people what to do?
A. Les White gives the orders and he tells its then. [Emphasis supplied..]
Cordia Glenn testified credibly,
Q. Who was your boss at the time you were laid off, Mrs. Glenn?
A. Mr. White.
Q. And did he have anybody under him?'
A. Sir?
Q. Did he have anybody under him in charge of the employees?
A. Well, Mr. Benfield, Fred Benfield was, you know, section hand.
Asked as to what Benfield did, she testified "He fixes the frames when they break
down. When anything goes wrong, we always go get him and show him frame
tangles or, you know, anything like that. We go get him and show it to him and
he.straightens it out" that when he is not fixing "he watches, keeps the work
from tearing up and he helps, us if we get in a hole, the roping runs out pretty
bad, he will light in and help us some," and that he puts them to work.
Helen Reinhardt, a spinner on the third shift, testified credibly :
Q. Who were you responsible to on your shift?
A. Mr. White , I guess.
That Benfield was "a section boss," that he put them all to work and sent em-
ployees to rest.
The above testimony does not convince me that McMurray and Benfield were
supervisors as defined by the Act. There is no testimony that they had any
authority to perform any of the acts defined in Section 2 (11) of the Act. As
Annie B. Dula.so aptly testified the overseer gives the orders, and McMurray
and Benfield performed the mere routine duty of carrying out the instructions
. CAROLINA MILLS, INC. 1155
of the overseer and did not require the exercise by them of any independent judg-
ment. In Riverside Mills, 85.NLRB 969, the Board said,
The fixers in the card room, weave room, and yarn department, work under
second hands and, although they are charged with the duty of maintaining
production, they have authority to assign employees and to correct produc-
tion difficulties only in the absence of second hands.
'The Board held that these employees are not supervisors within the definition of
the Act since they have no authority to hire and fire or to responsibly direct other
employees.` I find that McMurray and Benfield are not supervisors within the
meaning of the Act.
C. Questioning. employees about union activities, etc., and keeping union
meetings under surveillance in violation of Section 8 (a) (1)
Annie B. Dula testified credibly that about 1 month before Christmas 1948, she
could not recall the exact time, Lester White came to her night at work and
observing two employees talking, said, "I wonder what Walt Poovey is talking to
Helen Reinhardt. I guess he is trying to get her to join the union," and about
2 nights later he asked her, "Do you belong to the union, Mrs. Dula?" and she
replied, "No, I don't," and he said, "How come?" and she replied, "Well, I just
don't."
Jennie Lafevers testified credibly that some time before the layoff in January
1949 Lester White was talking to her about the Union, and wanted to know who
all belonged to it,
Q. You mean he was asking you?
A. Yes, sir, and I told him I didn't know nothing about the union and he
wanted me to go to some of the meetings and find out who all went. I
wouldn't go because I didn't make, it a habit of telling lies and I knowed I
.might have to come back and tell something I didn't want to if I went. And
I didn't go. So I went to Brookford to a meeting and I went up there to find
out what it was about. Nobody talked to me nothing about the union in the
mill, only what he talked to who all belonged to it and stuff like that...
that after she went to the meeting at Brookford, Lester White asked her what
they were doing up there and she told him they talked about their meeting and
did not name Carolina Mills. On cross-examination, Lafevers testified White
told her to go to the meeting at Brookford and she told him she was going,
that she saw some of the Carolina Mills employees at the meeting, and the
following occurred:
Q. Now did you tell Mr. White that those folks from Carolina were up at
that meeting?
A. I told him there was some there , but I didn't tell him who they was.
Q. Did he ask you?
A. No, he didn't ask me who they was. He knowed most of them belonged
to the union though , because he done told me he knowed it.
* # f i i i 3
5A. J. Sirus Products Corporation , 83 NLRB 99; Block & Kuhl Department Store, 83
NLRB 418; Dixie Spindle it Flyer Company , Inc., 84 NLRB 109; Aeroil Products Com-
pany, Inc., 86 NLRB 639; Pacific Gas it Electric Company, 87 NLRB 257.
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. These folks who he said he knew belonged , they weren 't trying to keep
it from him?
A. I don't know whether they was. I didn 't hear them say nothing
about it.
Q. Did he say they couldn 't belong?
A. No, he never said that . He said if we got a union down there, we will
all be out of a job and we will half starve to death like they did in Gastonia.
I didn't know much about what he was talking about , but that is what he
was telling me.
Q. Was he talking about the union strike?
A. Yes, he was talking about what the union got there.
Mamie Frye testified credibly that about 2 weeks before the layoff in January
1949 Lester White asked her "what I knowed about the union . I told him not
anything.. And he said he knowed it was going to cause us all to lose our jobs
and we wouldn 't be able to get one."
Lester White denied all of these conversations . His denial is not credited,
and I find that the questioning of these three employees was coercive and threat-
ening, and in violation of Section 8 (a) (1) of the Act.
Elsie Huffman testified credibly that about a week or two after she joined
the Union on Dcember 2, 1948, James Hewitt said to her , "I hear some of the
hands are signing with the Union . I don't know whether you have or not, but
I advise the best thing to do if you have is to tear up your slip and tell them
you don't want any part in the Union ." That she understood what he meant
by "them" was her superintendent in the office.
Ethel S. Blalock testified credibly that about the time she joined the Union
on December 2, 1948, James Hewitt came to her while she was working and said,
"Well, I have good news for you ." And he said , "They are going to
make a change in the batteries, take some of the work off of us." I said,
"That is the best news , I've heard." And I walked on off, still filling bat-
teries, and he followed me and he said , "If they would have done this three
weeks ago , there wouldn't have been any squabbles about the union."
And I said , "Well, we have told them ." And he said some of them were
signing into the union . He said his advice was to tear up their union cards
and give them back to those men when they came back for them.
Q. Did he say anything else?
A. And he said , "I would think seriously before I would go into anything
like that." He said, "Because they said they would not run under a union,
because they wouldn't have to."
Hewitt denied these conversations , but his denial is not very convincing, and
I find that he made the statements attributed to him, and that such statements
interfered with, restrained , and coerced . the employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
Millie L. Hewitt testified credibly that she joined the Union on November 27,
1948, at the first meeting held at her house ; that just before the third meeting
of the Union at the home of Carrie L. Hedrick , Rhonda McLaughlin spoke to
her at work,
He says to me, "Where is the meeting going to he tomorrow night?" I
said , "Meeting, what meeting?" He says, "Oh you know, the union meet-
CAROLINA MILLS, INC. 1157
ing." He says , "Isn't it going to be at Carrie Lee Hedrick ' s?" I said I
didn't know anything about a meeting.
McLaughlin denied having any conversation with Millie Hewitt but I do not
credit his denial. I find that the statement made by him in the nature of a
question was coercive per se, and in violation of Section 8 (a) (1). of the Act.
Wilburn P . Cook testified credibly that Allen Walters said to him "If the
Union got it, why they would work us harder . We wouldn 't have no chance to
smoke , if we wanted to, nor nothing , and we would have to be right on our job
eight hours ." There was no testimony as. to when this statement was made.
I find that this statement was merely Walters views or opinion as to conditions
should the Union succeed in organizing , the employees , and clearly the statement
contains no threat of reprisal or force or promise of benefit, and pursuant to
the provisions of Section 8 (c) of the Act it is not evidence of an unfair labor
practice.
D. Surveillance of union meetings
Lenda K. Starr testified credibly that all of the meetings of the Union were
held at her house except the first meeting and one other meeting on either
the week following December 4, 1948, or the meeting held December 17, 1948,
she could not recall which ; that at one meeting at her house , and she was
certain it was December 4, 1948, Lester Yancey , Lester White , and Fred Ben-
field, in Benfield 's car, drove up the street in front of her house , and later turned
around and drove back , that they were driving slowly and looked at the house as
they passed each time ; that at another meeting in December 1948 prior to the
layoff, Lester White and Fred Benfield drove by the house slowly , looking at the
house ; that at all other meetings held at her house, Fred Benfield drove by,
and at one meeting he drove by three times ; that her house was on a dirt
street, and there were no stores , churches , or other public buildings on the street,
that from the front of her porch to the street was about 10 feet ; that at these
meetings there would be 25 or 35 employees present and they could not all be
accommodated in the living room, and some of them were in the halls, on the
porch, and some of them in the yard , and that standing on the porch she could
recognize Yancey, White, and Benfield when they drove by; that the meetings
were held in the afternoon.
Ethel S. Blalock testified credibly that she was present at a union meeting
at Lenda Starr 's house and that about the time the meeting was over about
4 o'clock in the afternoon and the employees were on the front porch and in the
yard , Fred Benfield drove past the house twice, driving slowly and looking at
the house ; that Benfield lives in another section of the city about 11/2 miles from
Starr's house.
Yancey testified credibly that he drove by Starr's house, that Benfield was
with him, and saw three or four cars parked there. He also testified , but such
testimony is not credited , that he was on his way to a store , that he did not
observe any of the employees , and that he did not observe that there was any
union meeting. Lester White denies being in the car with Yancey and Benfield
in December 1948. Benfield testified credibly that he drove by Starr's house a
number of times, that on two occasions he saw several cars, maybe three or
four, parked in front, that on one occasion he saw some folks standing in the yard
or. on the porch . I do .not credit Benfield's further testimony that he went
past Starr 's house to trade at a store near there and to collect for wood he had
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sold, and that he did not observe who the people were standing. on the porch and
in the yard.'
Based on the above evidence, I find that Respondent was keeping under
surveillance the organizational activities of its employees and of the Union as
charged in the complaint, and in violation of Section 8 (a) (1) of the Act.
General Counsel offered as a witness Haskell V. Korn, nephew of Lenda K.
Starr, who gave some testimony as to conversations he was alleged to have had
with James Hewitt in which he testified to statements he says were made to
him concerning knowledge of Respondent of the union activity of its employees,
the surveillance of union meetings and the reprisals taken and to be taken
against those who were most active in the organizational work. Korn is a young
man 18 years of age, and his testimony was not at all convincing to me. His
memory as to the alleged statements by Hewitt was very vivid, but as to other
events he was very evasive and contradictory and frequently could not remember.
On cross-examination, the following occurred :
Q. He and Lenda talked to you about coming up here and testifying, is
that right?
A. Well, I reckon so.
Q. What did Lenda say to you about it?
A. Well now, that I just can't remember.
Q. Well, you can remember some of it, don't you?
A. No, I couldn't tell you nothing about that.
Q. Do you remember Lenda going over with you what you'should say?
A. Going over with me?
Q. Yes, going over it with you?
A. No, sir.
Q. You don't remember her talking to you about what you should testify?
A. No sir. I just told her what that they told me.
Q. You told her you didn't want to testify, didn't you?
A. Well, I didn't tell that neither. I didn't want to at first, but then
finally I gave up to it.
Q. How come you to finally give up to her and say you would come testify?
A. I just didn't want to be messed up in court. I never had been in court.
Q. Do you remember what she offered you to come testify?
A. Yes, sir, I do. She told me she would give me ten dollars if the union
got it.
I am convinced that Hewitt probably made some statements to Korn as the
testimony of three other witnesses indicates that he was rather free in discussing
the Union with employees, but Korn's testimony is so untrustworthy and im-
probable, for instance that Hewitt, with his other responsibilities, would remain in
the washroom with Korn for an hour and tell him all that Respondent knew of the
union activities, without in turn seeking any information from Korn, that all
of his testimony must be and is discredited.
6 Although I have found that Benfield was not a supervisor , the fact that on two of
these trips he was accompanied by supervisors, and his credited testimony that he reported
to James and Poovey from time to time on union activity `among the employees , convinces
me he was reporting to Respondent all that he observed on these trips, and was no doubt
directed by Respondent to make these observations . Accordingly I find that evidence
of his activities is competent on the question of surveillance of the union meetings.
CAROLINA MILLS, INC. 1159
E. Discriminatory discharge of Lenda K. Starr
Lenda K. Starr testified credibly that she was first employed by Respondent
in 1935, left in 1940, and returned about 7 months later in June 1941, worked until
sometime in 1946, and left for about 7 months, returning in June 1947, and con-
tinued until her discharge on December 6, 1948; that she held various positions
and was a weaver for about 5 or 6 years up to December 1948; she was on the
first shift directly under William Snipes, who reported to Ralph James ; that
she was at the first organizational meeting of the Union and became a member of
the organization committee, and was present at all meetings of the Union, all of
which were held at her house except the first and one other meeting ; that she
was very active driving in and around Newton soliciting the employees of Re-
spondent, and signed up at least five members and probably more.
That Respondent was fully informed as to Starr's union activity is-clear from
the actions of Yancey, White, and Benfield in the surveillance of the union meet-
ing at her house on December 4, 1948, herein related. This meeting .was on
Saturday, and Starr further testified credibly that the following Monday, De-
cember 6, 1948, when she reported for work at the mill at 6 o'clock in the morning,
she found Joe Bumgarner, another employee, at work on her looms, and Snipes
told her James wanted to see her in the office, that she reported to James and he
said, "Lenda, I am going to have to put somebody else on your job," and the
following then occurred :
I said, "What's the trouble?" And he said, "You are not getting pro-
duction." I said, "That's nothing, Mr. James, I have never got production
off of that set of looms."
Q. Go ahead.
A. And I said, "And furthermore, the other two weavers are not getting
production off of it."
Q. By the other two weavers, who were you referring to?
A. I believe the third shift weaver was Beulah Propst. I believe her
name is that. I know it was Mrs. Propst. Just right off-hand I can't say
who was on the second shift, because they had two or three different weavers
on that job.
Q. In other words, were you referring to the two employees who worked
your machine on the second and third shifts?
A. Second and third shifts.
Q. Go ahead?
A. And I said, "Why are you firing me now ? Why are you taking me off
of it now? Why haven't you done it before?". He said, "Well, I have been
giving you time," and I said, "Well, the others is not getting production."
and I said , "It suits me , give me a battery job. The battery hands makes
more than I do anyway." He said, "There is no other job for you."
[Emphasis supplied.]
Q. In other words, you asked him to give you a battery job?
A. I certainly did. And he said there were no other job for me. I said,
"Well, in other words then, I am fired?" He said, "Oh , I wouldn't go as far
as to say that." He said, "I could fire you. I could lay you off or you could
quit." I said, "I refuse to quit." He said, "Well, it would look better if
you was to quit on account of going somewhere else to get a job." I said,
"I'll take that chance."
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
And we argued there just among ourselves , I will say from-I didn't have
my watch on , I don't know , from what I could figure somewhere between
40 or 45 minutes , just one word and then another . He was trying to get me
to quit, you know , everything he could say to get me to quit.
That she never did get production on these looms , that sometime in the summer
or fall of 1948 Respondent moved the machines to a different location , and she
was then assigned these 24 looms to operate , and that production had been 1,200
thousand picks, but it was moved up, and she asked James and he said he could
not tell offhand, but it was somewhere along 2,200 thousand picks ; that she
could not get this production and the looms never produced it while she was
there, that the 2 operators on these looms on the second . and third shifts never
did get it , that the production of all weavers was placed on a bulletin board
every day and she could see what production was had, and the highest produc-
tion on these looms was 1,600 thousand picks ; that James concluded his con-
versation with her by saying , "Lenda, What have you got upstairs personally
that belongs to you ?" And I said, "Why?" And he said , "Well, I'll send Wil-
liams Snipes up there after it." I said, "Thank you, I brought it in and I will
take it out ." That she returned to the weave shop, got her things, and left
the mill. That afternoon when her husband came home from the mill, he
told her James and Snipes were telling all over the mill that she quit,
So Tuesday morning I got up and went to work at 6 o'clock and I went to
the office , Mr. James' office . And I said , "Mr. James," I said, "I understand
that you have told it all over the mill I quit ." And I said , "I told you yester-
day that I would not quit." I said, "If you haven 't fired me, I'll go back on
my job this morning." He said, "Oh, no, you won 't." I said, "All right," 1
said, "you fill out my papers right now and you put it on there that you fired
me." He said , "If that's . what you want, that 's what you will get."
That there was some delay in getting her papers for unemployment compensa-
tion, and they were sent to her later through her husband, and alleged she quit
without cause : that she called General Superintendent Poovey, but he said he
did not know anything about it; that later before the unemployment compensa-
tion board Joe Bumgarner made a statement that James hird him before 6 o'clock
on December 6 to go on her set of looms, that he did not like the looms and
James told him, "I 'll see you do not have to keep that job but run it until I
can get someone else to take it." That in the spring of 1949 she applied to James
for reinstatement and was told he did not need any help , and about a month or
two later she applied to Snipes but was again refused ; that on April 13, 1950,
after the first hearing in this case , James sent for her and employed her as a
weaver on the third shift, but refused to reinstate her to her former job on the
first shift.
On cross-examination , Starr testified credibly that they had been after her
several times about her production , but they were after the other weavers too
about production.
There was little conflict between the testimony of James and that of Starr,
except James' statement that when he questioned her concerning an alleged
statement she made that she could make as much sitting on the overseer's desk
as she could running the looms, she denied the statement, and -when Snipes who
was present said she made it, she got up out of her seat and took off her apron
and said "she quit, she wasn't working for no such people," that she then quit
and walked out, that about 1 or I-V hours later she called him on the telephone
CAROLINA MILLS, INC. 1161
and said, "this is Lenda Starr; I want you to understand that you fired me ; I
didn't quit." James was not questioned as to Starr's testimony that she reported
for work the following morning after her discharge and there is no denial of
this ; James confirmed Starr's testimony that at the time of his conversation
with her, she said that other employees on her set of looms could not get the
required production, that he told her this was not so and he knew it from
records which Respondent had, that the daily production records had been
destroyed, but they had the time sheets which disclosed the actual picks per
shift per day for each employee. The Trial Examiner suggested that these
records be shown to the General Counsel. Such records were never producer at
the hearing, and as Respondent admitted it had such records, the failure to
produce them at the hearing raised the presumption that had such record been
produced they would have been adverse to Respondent's contention. Snipes
testimony largely confirmed that of James, and adds little, if anything, to it.
He did confirm Starr's testimony that there was considerable bickering back
and forth between James and Starr until finally James questioned her about the
incident of sitting on the overseer's desk, that she then balled her apron up,
and said that she quit.
Careful consideration of all of this testimony leads me to the conclusion
that Respondent discharged Starr by reason of her union activity. That Re-
spondent was antagonistic to the Union is clear from all of the testimony ; that
it had knowledge that Starr was very active in the union organization is also
evident. Starr had been an employee for a number of years, and had been on
this particular set of looms for some time. If she was deficient in her produc-
tion as Respondent contends, why were the records which would have con-
clusively established this alleged fact not produced. It is also significant that
if Respondent had just cause to discharge Starr, an employee for some years,
that they selected the very first work day after observing the union meeting at
her house the preceding Saturday. It is also noticeable that if Respondent had
just cause to discharge her it consumed the time of two busy supervisors to
argue and bicker with her for nearly an hour. This does not appear reasonable.
Respondent's present position that she quit and was not discharged convinces
me that that was what Respondent hoped for. Whether it succeeded or not is not
necessary to determine, for tinder the circumstances it is clear that it would be
a technical discharge, and the reasons alleged by Respondent were clearly a
pretext, and I find that Respondent discriminatorily discharged Lenda K. Starr
for union activity, and has failed to reinstate her to her former position on the
first shift with the same rights and privileges she formerly enjoyed.
F. Discharge of Claude Ray Hamby
Credited testimony shows that Claude Ray Hamby was employed by Respond-
ent at various times beginning some time in 1946; his last employment beginning
some time either in January or February 1948, until his discharge on December
13, 1948. Hamby was a member of the Union, having joined November 27, 1948,
was on the organization committee, and very active in the union organization.
He was present at the union meeting at Lenda Starr's house on December 4,
1948, herein referred to. The evidence convinces me and I find that Respondent
was fully advised as to his union activity. There is little or no conflict in the
testimony as to the reasons for his discharge. James and Snipes both testified
credibly that the morning before Hamby's discharge they were examining a bolt
of defective cloth in the inspection room which had been removed from the
929979-51-vol. 92-75
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
loom upon which Hamby was working, and the inspection did not disclose any
shift change marks' and they were unable to, determine how much of the cloth
had been woven by Hamby; so they questioned Hamby as to whether he marked
his cloth , and he said he did; that the following morning Snipes found one of
Hamby's looms operating with an end out running through the cloth, he called
Hamby over and asked him if lie knew that end was running out and he said he
(lid not ; that James came over and asked Hamby if he marked his cloth that
morning, he said he did, that an inspection of the cloth did not reveal any marks,
and Hamby said "maybe something was wrong with the loom" ; they took a roll
of cloth from another loom, and this also was not marked, and Hamby gave
the same excuse that maybe something was wrong with the loom, and James
asked him if he had a loom that had been operating all morning, and he said
loom No. 1, that an examination of the roll of cloth from this loom also disclosed
no marks, and James said, "Well, now, I don't find any mark on this cut of cloth..
What would you do if you were in the position I am? You say you marked your
cloth and we are not finding any." And Hamby said, "I guess I would do the
same thing you are going to do." James said, "I guess you would. I am going
to put somebody on your job." Hamby testified he knew of the rule requiring
the marking of the cloth, but that he did not always observe it, he did when he
had time but if the looms were not operating all right, he did not take the time
to comply with the rule. The credited testimony disclosed that Hamby was
somewhat irregular in attendance, and he testified that he would stay away
from work without calling in to be excused. Hamby testified that he knew of
the rule requiring the marking of the cloth, that it was not his practice to mark
his cloth as required that "if the looms were all running pretty good, I would
mark it, if it wasn't, I didn't"; that unless you put your mark on the cloth,
management could not tell where you started weaving. Credited testimony
disclosed that in February 1948 Hamby was convicted in the local court of
larceny and sentenced to 3 to 5 years, which sentence was suspended. .
Hamby's testimony was not at all convincing. He had an indifferent attitude.
and was inclined to be evasive. This indifference was clearly demonstrated in
his attitude about compliance with the marking rule. Respondent may have
been seeking to discharge him by reason of his union activity, but on all of the
evidence I am convinced that Respondent's reason for discharging him was not
a pretext, and I shall recommend that the charge in the complaint that Hamby
was discriminatorily discharged be dismissed.
G. Discriminatory selection of employees for layoff in January 1919
Moretz testified credibly that in the latter part of 1948 a check of the
flannel market disclosed that work-glove manufacturers were carrying a tremen-
dous inventory of gloves and that they were heavily burdened with canton
flannel in their warehouses; that the work-glove industry was seasonal, the
heavy operations being in the fall and winter months, usually from September
through April or May ; that during the heavy period Respondent had been.
unable to operate more than a 3-day week and had to build up a heavy inventory
for which there was no 'market; that Respondent knew it could not continue
even the 3-day week during the dull period of spring and summer, and after
7 When a shift changed the roll of cloth remained on the loom until the required length
was obtained. The incoming shift was required to mark an arrow on the selvage of the
cloth with a colored pencil to indicate where the operator started his operation to enable
management to determine upon inspection the operator responsible for defective weaving
CAROLINA MILLS, INC. 1163
efforts to secure additional business had failed, it was decided in January 1949
to discontinue the third shift until the market improved. Based on this testi-
mony and other credited testimony, and the fact that the layoff included non-
union as well as union employees, it is apparent that union activity was not
responsible for the layoff in January 1949, and.I find that it was an economic
layoff.
The evidence as to the selection of the employees to be included in the lay-
off is rather confusing and contradictory and convinces me that Respondent
took advantage of this situation to rid itself of certain union employees, parti-
cularly the leaders, for instance of the 10 members of the organizing committee
herein referred to, 2 of them were discharged prior to the layoff and all of the
remaining 8 were included in the layoff in January 1949, and of these 8 only
2 have since been reinstated after the third shift was restored in the fall
of 1949.
Moretz testified that at the Christmas party in 1948 he informed the employees
of the probable layoff, and that in selecting those to be laid off consideration
would be given to seniority, attitude, capacity, and absenteeism ; that some-
time in December 1948 he directed General Superintendent Clark to prepare
lists of the employees to be retained and those to be laid off ; that Clark and
Poovey, superintendent of Plant No. 8, prepared lists during his absence front
the city, and. on his return some changes involving particular employees were
made after consultation with him, but that the selection of the employees was
left up entirely to Clark.
Clark testified that, with the assistance of Poovey, he prepared several lists
of the employees to be retained and those to be laid off : that he did not receive
any .specific instructions from Moretz as to the selection of the employees, that
Moretz told him "Now you will have to go over with different ones and deter-
mine who we will drop" ; that when he was going over this with Poovey, they
tried to take into account several different things that would influence our ac-
tions, that where there was more than one in a family working, they would let
one go and retain the other, that some of them who were farmers would be less
affected if they were laid off ; that efficiency of the employees was also given
consideration, although he admitted that Respondent maintained no records of
efficiency and they had to rely upon the impressions of the foreman. Clark
could not recall any other considerations until prompted by General Counsel
when he said that attitude was given consideration in a general way. Asked
as to seniority, he testified they did not follow that in every case, although he
had no logical reason why it was not followed; that in notifying the employees
laid off nothing was said to them about the restoring of the third shift later on;
that in the layoff employees on the first and second shift were included, and
employees on the third shift were transferred to fill the vacancies thus created
on the first and second shifts.
It is unnecessary to review at length all of the testimony on the subject of
the selection of those to be laid off. It is clear from this testimony that the
formula llloretz gave to the employees at the Christmas party was not followed,
and in fact it is difficult from the testimony to determine what policy, if any,
was used in making the selection of the employees.
Moretz, Clark, James, and other supervisory employees all testified that Re-
spondent was advised some time in December 1948 of the attempts by the Union
to organize the plant, and my findings based on the evidence of surveillance
of the union meetings and the questioning of employees by supervisors con-
I
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vinces me that Respondent was rather fully informed as to the union activities
of its employees , including those who were members , and the names of the
leaders.
Robert J. Rosenthal , an industrial analyst, employed in the industrial analysis
branch of the Board , testified credibly that based upon such evidence as he
could obtain from Respondent 's records and from other sources that the total
number of employees in Plant No . 3 for the first week of January 1949 was 254
of whom 70 were members of the Union , or 27 . 5 percent ; that the total number
laid off in January was 71, of whom 35 were union members, or 49 percent; of
the 70 union members, 35 , or 50 percent , were laid off, and of the total of 184
nonunion members, only 36 or 19.5 percent were included in the layoff, and as
herein mentioned , of the 10 original members of the union organization, com-
mittee, 2 were discharged prior to the layoff, and all of the remaining 8 were
included in the layoff . A comparison of the seniority records, which Respond-
ent produced , but admitted were somewhat inaccurate , disclosed the following :
Of the employees laid off, 1 had been employed by Respondent for 21/2 years, 8
for 3 years, 5 for 18 months, 11 for 1 year , and 1 less than a year ; of those
retained , 7 had been employed 2 years, 8 employed 18 months , 20 for 1 year, and
17 less than 1 year. These figures make too evident that Respondent gave little,
if any, consideration to seniority in selecting those to be laid off. Although
Clark testified that efficiency was considered in making the selections , Respond-
.ent evidently did not recognize that long service is in itself an indication that
an employee has performed satisfactorily . The reasons advanced by Respond-
ent for the selection of the employees to be laid off, i. e., those least suited to
perform the work which remained to be done and those who had an unfavorable
:attendance record are the same as those advanced in Differential Steel Car Com-
pany, 75 NLRB 715, and as in that case , Respondent offered no evidence to indi-
cate in what way.the qualifications of those laid off fell short of those retained,
nor did Respondent offer any evidence showing that the attendance record of
those laid off was unfavorable . Considering the disproportionate number of
union members who were terminated ; that employees with 21/2 and 3 years
service were laid off in preference to some who had worked much shorter pe-
riods ; and Respondent 's knowledge of the union activities of its employees, and
of its opposition to union organization , I am c9nvinced and find that Respond-
ent used a discriminatory standard in selecting employees for layoff and that
Respondent thereby violated Section 8 (a) (1) and ( 3) of the Act . This finding
is not applicable to all those named in the complaint except to the extent that
they constituted a part of the entire group of union employees which, as a
group, was discriminated against. Having found economic justification for the
layoff, it is unreasonable to suppose that the necessary reduction in force could
have been effected without laying off some union members . It may well be that
absent a discriminatory motivation some of those named in the complaint would
nonetheless have been terminated . The record affords no reliable basis for
determining just who those individuals are.
Subsequent to the layoff, Respondent had reinstated 19 of the employees which,
the complaint alleged were discriminatorily laid off , the names and dates of such
employees being set forth in Appendix A attached . I shall recommend that
the remedy be limited to payment of back pay from January 10 , 1949, the
effective date of the layoff, to the respective date on which the employees actually
returned to work.
I
CAROLINA MILLS, INC. 1165
H. Interference with distribution of union literature
This matter was first opened for hearing on April 3 , 1950, at Newton, North
Carolina , and a tentative settlement was effected with Respondent subject to
the approval of the Board , and the hearing closed. Thereafter on April 5, 1950,
the Union sought to make a distribution of literature at Respondent 's plant
setting forth its version of the proposed settlement , and the Respondent refused
to permit the distribution on its property. The Union filed an amended charge
alleging this interference , the complaint was amended and the hearing reopened
prior to the submission of the proposed settlement to the Board.
Respondent 's plant and premises , somewhat oblong in shape , occupies a large
tract of land on the outskirts of Newton, bounded on the north by Second Street,
on the east by Caldwell Avenue , on the south by A Street, and on the west by a
railroad track from which a siding extends to the plant. There is a dirt road
running through Respondent 's property from A Street to Second Street , off from
which is parking spaces for employees ' automobiles . The main door to Plant
No. 3, which is about 6 feet in width and is a double door , through which the
majority of the employees enter and leave the property , is adjacent to the dirt
road about two-thirds of the distance from A Street to Second Street. There
is one other entrance on the west side of the building to a platform adjacent to
the railroad siding, from which platform steps lead to the ground . Access to
the parking spaces is via the dirt road to either Second Street or A Street.
Caldwell Avenue is elevated above Respondent 's property and the only direct
access to it is foot paths up the side of the hill. Employees may also enter
and leave the property across the railroad track by foot paths. There is no
fence around the property , and Respondent concedes that on and prior to
April 5, 1950, there were no signs or other indications that the dirt road passing
through the property was other than a public road.
As there is no material conflict in the testimony of the three union representa-
tives who were present on the property on April 5, 1950, of the one young woman
who assisted in the distribution , and of Moretz and James , it will not be necessary
to relate in detail the testimony of the witnesses which is credited. Such
testimony is summarized as follows :
On April 5, 1950, at approximately 1: 30 p . m. the three union representatives
and two women assistants came upon Respondent 's property for the purpose of
distributing literature to the employees entering and leaving Plant No. 3 at the
time of the change in shifts at 2 o'clock. The two young women were stationed
at the sides of the main entrance door of Plant No. 3 described above, one of
the union representatives stationed himself adjacent to the steps leading to the
.platform on the west side of Plant No . 3, and another stationed himself at the
entrance to the parking lot. Shortly before 2 o ' clock James returned to the plant
from lunch , and noticing the two women at the main entrance , he sought out
the union representative in charge of the distribution and ordered him to remove
the two women and the other union representatives from Respondent's property.
The two women were directed by the union representative to leave the door, for
the reason as testified by him that he did not want to be involved in any violence
should it occur, and one of them went up on Second Street, and the other
remained for a while with the union representative at the entrance to the parking
lot. . The union representative at the steps to the platform on the west side of
the building left Respondent 's property and went up on the railroad track. The
union representative stationed at the entrance to the parking lot refused to
leave Respondent 's property , raising some question as to whether it was private
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
property . Respondent called the police and three policemen answered , including
the chief of police , but refused to interfere with the union representative at the
parking lot unless Respondent would swear out a warrant , which Respondent
refused to do. As it was then after 2 o'clock and the employees involved in
the change of shifts had entered or left the plant, the union's representative
also left . By reason of the interference by James, the distribution of the litera-
ture was only partially successful , as.once the employees got past the entrance.
door they scattered to the various foot paths leading up to Caldwell Avenue
and across the railroad track, and it was very difficult and dangerous to attempt
the distribution of any literature to persons in moving cars on highways after
they have left the parking lot. James testified that the two women were blocking
the main doorway , but said he had no difficulty getting in and out of the door.
Both of the women making the distribution were unusually small , and with a
6-foot doorway it is hardly probable they would have been successful had they
attempted to block the doorway. One of the women testified credibly that they
were standing to the side of the doorway and in no way interfering with ingress
or egress to and from the building.
The General Counsel and the Union contended that in the physical setting
herein described , distribution off of Respondent 's property was not an effective
.means of reaching all the employees . The testimony of the witnesses so clearly
established this that it merits no further comment, and I find that distribution
off of Respondent 's property was not effective , and in certain instances would
be highly dangerous.
Respondent offered no evidence of any rule prohibiting the distribution of
literature on its property , and in fact permitted the distribution of literature
on the parking lot shortly following its interference with the Union herein
related. Respondent made no objection to the type of literature which the
Union was attempting to distribute.
The Board and the Supreme Court of the United States have definitely estab-
lished that employees , as an incident to their right to self-organization , may en-
gage in the distribution of union literature on company property on their own
time. The Board has held that rules prohibiting such activities outside of work-.
ing hours on company property , in the absence of evidence that special circum-
stances made the rules necessary in order to maintain production or preserve
discipline , must be presumed to be an unreasonable impediment to self-
organization e The Supreme Court in N . L. R. B. v. LeTourneau Company of
Georgia, 324 U. S. 793, held that the Board had properly placed the burden
of proof on the employer to show the existence of special circumstances relied
upon to justify the necessity of its rules in the situation referred to. In the
present case , Respondent offered no evidence , nor did it seek to justify, the
necessity for its prohibition of the distribution of the literature by the Union.
Upon a consideration of the entire record, it is concluded , and I find that
Respondent 's prohibition of the distribution of the union literature on Respond-
ent's property under the circumstances in this case , constituted interference,
restraint , and coercion of its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
IV. THE EFFECT OF THE. UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above , occurring in
connection with its operations described in Section I, above, have a close,
s The Maryland Drydock Company , 88 NLRB 1305 ; LeTourneau Company of Georgia,
54 NLRB 1253.
CAROLINA MILLS, INC. 1167
intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and is engaging in unfair
labor practices affecting commerce, it will be recommended that it cease and
desist therefrom and take certain affirmative action which- the undersigned
finds is necessary to effectuate the policies of the Act.
By interrogating employees about the Union and their union membership,
activities, connections, and sympathies, and by the surveillance of union meet-
ings of its employees, Respondent has evidenced a purpose and disposition to
thwart self-organization of its employees and deprive them of their rights
under the Act. In view of this, and of the other unfair labor practices herein
found, there is, in my opinion, a likelihood not only that such acts may be
repeated but that other unfair labor practices may be resorted to by Respondent
in an effort to prevent self-organization of its employees. To minimize the
likelihood of recurrent unfair labor practices and to assure the employees the
enjoyment of their statutory rights, it will be recommended that the Respondent
be ordered to cease and desist from in any manner interfering with, restraining,
or coercing its employees in the exercise of their rights of self-organization.
Having found that Respondent has discriminatorily discharged Lenda K.
Starr, it will be recommended that Respondent offer the said Lenda K. Starr
immediate and full reinstatement to her former or substantially equivalent
position without prejudice to her seniority and other rights and privileges, and
to make her whole for any loss of pay she may have suffered by reason of Re-
spondent's discrimination against her. It is recommended that the loss of pay
be computed on the basis of each separate calendar quarter or portion thereof
during the period from December 6, 1948, to the date of a proper offer of rein-
statement; the quarterly periods, hereinafter called "quarters" shall begin
with the first day of January, April, July, and October ; loss of pay shall be
determined by deducting from a sum equal to that which she would normally
have earned for each quarter or portion thereof, her net earnings, if any, in
other employment during that period; earnings in one particular quarter shall
have no effect upon the back-pay liability for any other quarter. It is also
recommended that Respondent be ordered to make available to the Board upon
request payroll and other records to facilitate the checking of the amount of
back pay due.
Having found that the Respondent used a discriminatory standard of selection
in effecting the layoff on January 10, 1949, it will be recommended that the
Respondent offer reinstatement to, and make whole, those who were the subjects
of discrimination. It may well have been that some of those named in the
complaint would have been laid off on January 10, 1949, absent discrimination
but it is up to the Respondent "to disentangle the consequences for which it
was responsible from those from which it was immune," ° and this the Respond-
ent has failed to do. Since the ideal remedy, naming those to be made whole and
offered reinstatement, cannot here be recommended with the preciseness which
is desirable, resort must be taken to some practical device which will reasonably
assure an equitable disposition of this problem. Had the Respondent been un-
mindful of the union affiliation and activities of its employees, it is probable
9N. L. R. B. v. Remington Rand, Inc., 94 F. 2d 862 (C. A. 2). cert. den. 304 U. S. 576.
1168 DECISIONS OF.NATIONAL LABOR RELATIONS BOARD
that the percentage of union and nonunion members among those laid off would
have been at least approximately the same as those percentages existing among
the body of the employees. Thus conceding the necessity for a layoff, 27.5 per-
cent of the 71 employees affected would have been union members ; 72.5 percent
would not have been. Translating these percentages into number of employees,
the layoff of January 10 should have separated from their employment only
20 of those who were members of the Union. It follows that 15 of the union
members who were laid off would have retained their employment in the absence
of discrimination.10 The undersigned has found that the Respondent discrimi-
nated against the union employees as a group in selecting individuals for layoff
and the record affords no basis for determining precisely which of the union
members suffered by reason of that discrimination. It is necessary, therefore,
to remedy as exactly as possible the unfair labor practice in this respect both
with reference to the union members as a group and as individuals. This can
be accomplished only by requiring the Respondent, in effect, to go back to Jan-
uary 10, 1949, and then to proceed to accomplish the necessary reduction in its
force on a nondiscriminatory basis. The undersigned recommends that in order
to remedy the effects of the Respondent's unfair labor practices with relation
to the entire group of union employees, it be required to select from a list of
such union employees as of January 10, 1950, attached hereto as Appendix B,
20 for layoff in accordance with its usual method in reducing force without
discrimination against any individual because of his union affiliation or activity,
following a system of seniority to such an extent as has heretofore been applied
in the conduct of its business. From the remaining employees as of that date,
the undersigned recommends that the Respondent select 51 for layoff in accord- .
ance with the same standard. The necessary result of this selection will be that
15 less union members will be affected by the layoff and the ratio of union and
nonunion employees will be restored. It is further recommended with respect
to, any of those named in the complaint who are not selected for layoff by
application of the nondiscriminatory standards outlined, that the Respondent
offer to each such as have not yet been reinstated as herein referred to, im-
mediate and full reinstatement to his former or substantially equivalent position
as of January 10, 1949, without prejudice to his seniority or other rights and
privileges he may have enjoyed and that the Respondent make each of the said
15 employees whole for any loss of earnings he may have sustained by reason
of the discrimination against him, for the period from January 10, 1949, to the
date of actual reinstatement, or proper offer of reinstatement, as the case may
be, computed on the same basis as herein outlined with respect to Lender K. Starr.
In thus striving to restore the status quo, I have been forced to recommend
the use of hypothesis and assumption instead of proven fact, but the unlawful
conduct of Respondent has made it impossible to do more than approximate
the conditions which would have prevailed in the absence of discrimination."
I€ is recommended that the Board expressly reserve the right to modify the
back-pay and reinstatement provisions if made necessary by a change on con-
ditions, and to make such supplements thereto as may hereafter become neces-
sary in order to define or clarify their application to a particular set of
circumstances not now appearing.
Having found that Respondent engaged in interference, restraint, and coercion
of its employees in the exercise of the rights guaranteed in Section 7 of the
'OF. TV. Woolworth Company, 25 . NLRB 1362, 121 F. 2d 658.
'IF. W. Woolworth Company v. N. L. R. B., 121 F. 2d 658.
CAROLINA MILLS, INC. 1169
Act by prohibiting the Union, its representatives and members, and other
employees from distributing the union literature on Respondent's property during
employee's nonworking time, it will be recommended that Respondent be ordered
to rescind its said prohibition.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Textile Workers Union of America, CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
3. By discriminatorily discharging one employee, and by discriminatorily
selecting employees for layoff effective January 10, 1949, the Respondent violated
and is violating Section 8 (a) (1) and (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.'
5. It has not been established that the Respondent discriminatorily discharged
Claude Ray Hamby.
[Recommended Order omitted from publication in this volume.]