Caroline Mills, Inc.Download PDFNational Labor Relations Board - Board DecisionsOct 22, 194564 N.L.R.B. 376 (N.L.R.B. 1945) Copy Citation 0 In the Matter of CAROLINE MILLS, INC. and TEXTILE WORKERS UNION OF AMERICA, C. I. 0. In the Matter of CAROLINE MILLS, INC. and TEXTILE WORKERS UNION OF AMERICA, C. I. 0. Cases Nos. 10-C-1713 and 10-R-1383, respectively.Decided October 292, 1945 DECISION AND ORDER Pursuant to a Decision and Direction of Election of the Board,1 an election was held on April 17, 1945, among the employees of the respondent at Carrollton, Georgia, to determine whether or not Textile Workers Union of America, C. I. 0., herein called the Union, was the majority representative of the employees for the purposes of collective bargaining. Having lost the election, the Union on April 20, 1945, filed objections with the Regional Director, alleging, in substance, that the respondent had engaged in certain unfair labor practices which had affected the outcon-me of the election. The Regional Direc- tor investigated the Objections, reported to the Board that they raised substantial and material issues, and recommended that a hearing be held. On May 9, 1945, the Board issued its Order directing that a hearing on the Objections be held. On April 25, 1945, the Union filed a charge with the Board alleging that the respondent had en- gaged in unfair labor practices. On May 18, 1945, the Board issued an Order consolidating the above proceedings. On July 5, 1945, the Trial Examiner issued his Intermediate report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto- The Trial Examiner further found that the respondent did not main- tain the standard of neutrality required of it in respect to the election conducted among the respondent's employees on April 17, 1945, and recommended that the Union's Objections to the election be sustained 160N.L R B 1358 64 N I. R B, No 69 376 CAROLINE MILLS, INC. 377 and that the election be set aside. Thereafter, exceptions to the Intermediate Report were filed by the respondent and by the inter- venors. On September 13, 1945, the Board, at Washington, D. C., heard oral argument in which the Union and the respondent participated. The Board has reviewed the Trial Examiner's rulings made at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions of the parties, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the modifications and additions hereinafter set forth. 1. The Trial Examiner has found that on the morning of the elec- tion, Superintendent Hall inquired of employee Lester as to how Lester intended to vote, and that Hall said to Lester "I wouldn't vote for it." This finding is based upon Lester's testimony, which the Trial Ex- aminer has characterized as undisputed. The record reveals, however, that Hall denied making any attempt to influence the vote in the elec- tion. In view of our decision in the case, we find it unnecessary to resolve this conflict in testimony. In arriving at our decision, how- ever, we do not rely upon Lester's testimony as to his conversation with Hall. Nor, under all the circumstances, do we rely upon the statement of Vice President Schaeffer to employee Pike that the National War Labor Board would not authorize a wage increase "as.long as any union's around." 2. The respondent excepts to the Trial Examiner's finding that it is responsible for the statements of Broch, a member of the respondent's Board of Directors, on the ground that the employees had no knowl- edge of Broch's connection with the respondent. We find no merit in this contention. Broch was a member of the respondent's Board of Directors and a stockholder in the respondent. In addition, Broch's office was adjacent to the respondent's mill; one employee testified that he had heard that Broch was a stockholder in the respondent; and, in addressing one of the employees, Broch identified himself with man- agement by stating "We want to keep it [the Union] out .. ." It is a reasonable inference, and we find, that at least some of the employees were aware of Broch's connection with management. Under all the circumstances, we agree with the Trial Examiner and find that the respondent is liable for the statements of Broch. 3. In discussing the effect of the respondent's conduct upon the elec- tion of April 17, 1945, the Trial Examiner noted that although the Union submitted 97 membership cards to a Board agent in connection with its petition for certification as the bargaining representative of the respondent's employees, it polled only 40 votes at the election. The 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD membership applications were not submitted in evidence at the hearing in the above-entitled proceeding; and, in accordance with Board prac- tice, they were not subject to examination by the respondent at the hearing in the representation case. Accordingly, we do not rely upon the applications in arriving at our determination to sustain the Objec- tions and to set aside the election.2 4. We do not concur in the Trial Examiner's finding that the state- ments and conduct of Strickland are attributable to the respondent. The record reveals that Strickland did not possess supervisory author- ity which would require his exclusion from the unit found appropri- ate by the Board in the representation proceeding. The record also shows that Strickland voted in the election, apparently without being challenged. As a member of the bargaining unit, he had the same freedom of action as all other employees in the unit with respect to joining or not joining unions and expressing his opinions on the sub- ject. Under these circumstances, liability for his statements and conduct may be attributed to the respondent only upon a showing that the respondent encouraged, authorized, or ratified Strickland's activities, or that it acted in such manner as to lead the employees reasonably to believe that he was acting for and on behalf of manage- ment. No such showing was made in the instant case. Consequently, we do not charge the respondent with the statements and conduct of Strickland.' 5. Since the record establishes that the respondent engaged in un- fair labor practices prior to the election, we find that the election was not an expression of the free will of an uncoerced majority of the employees and we shall, therefore, direct that it be set aside. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Caroline Mills, Inc., Car- rollton, Georgia, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from in any manner interfering with, restrain- ing, or coercing its employees in the exercise of the right to self- organization, to form labor organizations, to join or assist Textile Workers Union of America, C. I. 0., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2 See Matter of Litchfield Manufacturing Company, 63 N. L. R. B. 545. 3 See Matter of R. R. Donnelly and !Vona Company, 60 N. L. R. B. 835. CAROLINE MILLS, INC. 379 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its plant at Carrollton, Georgia, copies of the notice attached to the Intermediate Report herein, marked "Appendix A."' Copies of said notice, to be furnished by the Regional Director of the Tenth Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days there- after in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (b) Notify the Regional Director for the Tenth Region (Atlanta, Georgia), in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the election held on April 17, 1945, among the respondent's employees be, and it hereby is, set aside. CHAIRMAN HERZOG took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT Mr. Albert D. Maynard and Mr. T. Lowry Whittaker, for the Board. Mr. Shirley Boykin, of Carrollton, Ga., and Mr. John Wesley Weekes , of Messrs. Weekes & Candler, Decatur, Ga., for the respondent. Mr. Horace White and Miss Irene Bailey, of Atlanta, Ga., for the Union. Mr. Willis Smith, of Carrollton, Ga, for the Intervenor. STATEMENT OF THE CASE On December 15, 1944, Textile Workers 'Union of America C. I. 0, herein called the Union, filed with the Regional Director for the Tenth Region (At- lanta, Georgia), a petition for investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On March 20, 1945, the National Labor Relations Board, herein called the Board, issued its Decision and Direction of Election, in which it directed that an election by secret ballot be held to determine whether or not certain of the employees of Caroline Mills, Inc., herein called the respondent, desired to be represented by the Union. On April 17, 1945, pursuant to the aforesaid Direction of Election, an election by secret ballot was conducted by the Regional Director among the employees in the unit found by the Board to be appropriate. The Tally of Ballots issued on April 17, 1945, showed that a majority of the votes were cast against the Union.' On April 20, 1945, the Re- 4 Said notice, however, shall be, and it hereby is, amended by striking from the first para- graph thereof the words "Recommendations of a Trial Examiner" and substituting in lieu thereof the words, "A Decision and Order." ' The tally showed the following results : Approximate number of eligible voters--------------------------------- 174 Valid votes counted---------------------------------------------------- 143 Votes cast for Textile Workers Union of America, C. I. 0-------------------- 40 Votes cast against participating union----------------------------------- 103 Challenged ballots----------------------------------------------------- 8 Void ballots----------------------------------------------------------- 0 '380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gional Director received from the Union a letter dated April 19, 1945, asking that the election be set aside and charging that officers and agents of the re- spondent, during a period just before the election, had interfered with the ex- ercise of rights guaranteed to employees by the Act. On April 28, 1945, the Regional Director issued his Report on Objections, copies of which were duly served upon the respondent and the Union, finding that the Objections raised a material and substantial issue with respect to the conduct of the election and recommending that a formal hearing be held on the Objections. On May 9, 1945, the Board issued its Order Direction Hearing on Objections to Election. On April 25, 1945, the Union filed a charge that the respondent had violated Section 8 (1) of the Act. On May 18, 1945, the Board, pursuant to Article IT, Section 36 (b) and Article III, Section 13 (c) (2) of the Board's Rules and Regulations-Series 3, as amended, ordered that the complaint case and the case on objections to election be consolidated. On May 19, 1945, the Board, by its aforesaid Regional Director, issued a com- plaint against the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and Section 2 (6) and (7) of the Act. Copies of the complaint, accompanied by the charge, and Notice of Hearing on the consolidated cases, were duly served upon the respondent and the Union. With respect to the unfair labor practices the complaint, as amended at the hearing, alleged in substance that the respondent, by certain of its officers and agents and from about March 15, 1945, to the date of the complaint, engaged in about 25 specifically named anti-Union acts 2 designed to persuade its em- ployees to vote against the Union at the aforesaid election. The respondent, by its answer filed June 1, 1945, denied engaging in the unfair labor practices alleged. Pursuant to notice, healing was held on June 7 and 8, 1945, at Carrollton, Georgia, before the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. At the opening of the hearing the Trial Examiner denied two motions by counsel for the respondent ; one, previously filed with the Regional Director, to dismiss the complaint on the ground that its allegations were "too loose, too indefinite, and too vague" ; and the other to dismiss "the proceedings" on the ground that the Regional Director had "pre-judged" the case by issuing 2 The complaint alleged that the respondent had engaged in the following conduct : (1) promised its employees more wages than paid to employees in organized mills; (2) ques- tioned them about their feeling toward the Union ; (3) urged them to vote against the Union at the Board election ; (4) told them that it hoped they would view the said election favorably from the respondent's viewpoint; (5) campaigned against the Union; (6) told its employees that they would do the "wrong thing" if they voted for the Union ; (7) warned them that they would be deprived of certain privileges if the Union were successful at the election ; (8) took union buttons from employees ; (9) questioned the employees about their union membership ; (10) instructed them as to the mechanics of voting against the Union (11) informed them that, as long as the Union existed, the National War Labor Board would not permit the respondent to give a wage increase , (12) questioned employees as to how they were going to vote at the election; (13) expressed enthusiasm when informed that the employees voted against the Union at the election ; (14) informed employees that the respondent was not going to get a union; (15) informed them that, if they did not vote they would lose their jobs, (16) warned them that if the Union came in the mill would shut down; (17) advised them to vote against the Union to keep from losing their jobs; (18) informed them that they would not get a union among themselves , (19) in- formed them that the wearing of union buttons was against rules of the respondent ; (20) informed employees that they had better vote against the Union if they weie going to need plenty of money ; (21) questioned employees as to how they intended to vote at the elec- tion; (22) informed them that the respondent was paying maximum wages; (23) advised employees that they should not vote for the Union; (24) made disparaging remarks about the Union and (25) circulated anti-Union petitions among the employees through the plant. CAROLINE, MILLS, INC. 381 his Report on Objections, above-described. Also at the opening of the hearing Willis Smith, a local attorney, moved to interevene in the proceedings on behalf of a number of the respondent's employees, herein collectively called the Inter- venor. Without objection, the motion was granted' The Board, the respondent, and the Intervenor were represented by counsel and the Union by representa- tives. All parties paiticipated in the healing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on: the issues was afforded all parties At the close of the hearing a motion by counsel for the Board was granted to conform the pleadings to the proof, as to minor matters. Ruling was reserved upon a motion by counsel for the re- spondent to dismiss "the entire proceedings" It is hereby denied. Oppor- tunity was afforded to all parties to argue orally before the Trial Examiner and to file briefs with him Counsel for the Board and for the respondent argued orally, said argument appearing in the official transcript of the hearing. No briefs have been received. Upon the entire record in the cases, and from his observation of the witnesses,, the undersigned makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Caroline Mills, Inc., is a Georgia corporation operating a plant at Carrollton,` Georgia, where it is eng,igcd in the inanufactuie, sale, and distribution of cotton yarn and synthetic fibre. During the fiscal year ending June 30, 1944, it caused approximately $250,000 worth of raw materials to be purchase(], delivered and, transported from and through states of the United States other than the State of Georgia to its Carrollton plant. During the same period it caused approxi- mately $600,000 worth of the products manufactured to be transported to and through states other than Georgia from its Carrollton plant. II. THE ORGANIZATION INVOLVED Textile Workers Union of America, C. I 0, is a labor organization admitting' to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Conduct of the respondent's officers, agents, and supervisors following Board's" Decision and Direction of Election The Board found, in its Decision and Direction of Election issued March 20, 1945, in part as follows : The Company [respondent] refuses to recognize the Union as exclusive collective bargaining representative of its employees until such time as the Union is certified by the Board. A statement of a Field Examiner of the Board, introduced into evidence at the hearing, indicates that the Union represents a substantial number of employees within the unit hereinafter found to be appropriate! * * * 8 The report of the Field Examiner shows that the Union submitted 97 membership application cards There are approximately 195 employees in the appropriate unit., 3In support of the motion , Smith produced a petition , which he stated had been signed by some of the respondent ' s emplo.iors, In substance , the petition averred that the " under- signed employees " were "fully tiatitified with the employment and salaries " and opposed the Union ' s "efforts" to set aside the election 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About two weeks before April 17, the date set for the election, Superintendent Clifford Hall asked employee Thomas H. Pike what he thought about the coming election. When Pike replied that he had not heard much about, it, Hall said that the was "scared" that some of the employees would "get themselves into trouble" over the Union, and explained that it was "liable to cause a lot of them to lose their jobs." Hall further advised Pike that if anything came up about a raise, he and others should go to the "office" and "we" can straighten it out. On the morning of the election Hall approached employee Al. F. Lester in the mill and asked him which way he was going to vote, and added, "I wouldn't vote for it" About a week before the Election C. A. (Bert) Broch, for many years a member of the respondent's Board of Directors which formulates its labor policies and directs the operation of the mill,' approached employee Lester at his work and asked him how he was "aiming to vote." Lester replied that he had not made up his mind. Broch then urged him, "I wouldn't vote for it; vote against it." At about the same time Broch called employee E. R. Reynolds to his cotton ware- house office, near the respondent's mill, and asked him to talk to the "hands" and help him keep the Union out of the mill. Broch further told Reynolds. "I guarantee you will get just as much as the Union pay and get it by the time they do. We want to keep it out ; so much trouble." Two or three days before the election Broch repeated his request to Reynolds, while at the mill.' About a week before the election Overseer McGlon approached employee Louise Gaines on her way to work and told her he wanted to talk to her about the Union to see how she felt about it. He informed her that there was to be an election at the mill, and further told her that the Union would be "what the people didn't want." During the evening following the election, ARGlon told Gaines that he was "so glad" the Union had been voted down that he had telephoned the news to a former superintendent of the mill.' A day or two before the election Vice-President P. L. Shaefer told employee Pike, when the latter asked for a raise, that the National War Labor Boar,l w uld not grant a raise "as long as any union's around there." Shaefer then asked him to "help us out," by which request Pike understood Shaefer to mean that he wanted the employee to vote against the Union' Two nights before the election, employee Joe Carwell dropped into the office where Section Man W. W. Duncan, who acted as night overseer, and lilarion Whitmore, another employee, were present. Duncan observed that Carwell was ti-earing a union button. He said, "Let's see it," took it from the employee's shirt, ' The findings as to Hall's remarks to Pike and Lester are based upon the employees' credible testimony. Hall denied having said anything to Pike about "losing jobs", or about the election. Lester's account of the superintendent's talk with him was gndisputed 5 The findings as to Broch's status rest upon the testimony of Vice-President P. L. Shaefer when first called as a witness by the Board When later called as a witness for the respondent, Shaefer denied that Broch had any authority in the matter of wages or operation of the mill He admitted, however, that the respondent's officers, who carried out operating policies, reported to the Board of Directors It is plain, even from Shaefer's vacillating testimony, and the Trial Examiner finds, that Broch held a high position in the respondent's hierarchy and that the respondent must be held accountable for any anti- Union remarks by him 8 The testimony of the two employees as to Broth' s remarks was undisputed. ' Gaines' testimony concerning McGlon is undisputed 8 Shaefer admitted talking to Pike on this occasion, but denied making the statements attributed to him by the employee, upon whose credible testimony the findings are based. In view of Broch's statements in similar vein, and Shaefer's vacillating testimony concern- Ing Broch, noted in footnote 5, the Trial Examiner does not accept the vice-president's denial as true. CAROLINE MILLS, INC. 383 remarked, "This makes four," and declared that he was going to give it to the superintendent. Duncan also told Carwell that it was against the rules to give out such buttons at the plant. On the night before the election, again in Whit- more's presence, Duncan told Carwell that no one should join the Unicn and that he wouldn't vote for it if he could. Duncan further told them that they would get a raise in July s Also on the night before the election, according to employee Mozelle Jacobs' uncontradhcted testimony, her overseer, Johnny Bass, questioned her as to how she intended to vote the next day. On the day of the election, Master Mechanic C. H. Davis told Mrs. Mary Whitmore, an employee, to go and vote "again the Union." In a few minutes Mrs. Whitmore returned and reported to Davis that she had voted "again it." 30 W S Strickland admitted as a witness and Board witnesses testified that he openly and actively urged employees to vote against the Union. It is uncontra- dicted that he was with Davis on the occasion described immediately above and similarly advised Mrs. Whitmore to vote against the Union. The respondent con- tends, however, that it may not be held responsible for Strickland's conduct because he does not hold a supervisory position, and on the ground that he was permitted to vote at the election As to the latter point, the evidence establishes that he did vote and there is no evidence that his ballot was challenged. On the other hand, the Board contends, in substance, that Strickland occupies a supervisory status, and that if investigation as to facts relating to his work had been made at the hearing in Case No. 10-R-1383, he "perhaps" would have been excluded from the bargaining unit In brief, Strickland repairs mill machinery, doing the same type of work on the second shift that Davis, whose supervisory authority the respondent does not deny, performs on the first shirt. Only three laborers regularly work under Davis" on the day shift, the latter giving them orders and keeping their time. Occasionally, however, one or more of these laborers is required to work on the night shift, and at such times they look to Strickland both for orders and for the keeping of their time. Two of the three laborers, as witnesses, referred to Strickland as their "boss man" when Davis was not at the mill. Strickland receives the same rate of pay as section men, who were excluded from the appro- priate unit and clearly are supervisors. On the day of the election, in the presence of both the Union and Company observers, Strickland announced to the Board agent that he had "three hands" whom he wished to be given an opportunity 0 The findings as to the above incidents are based upon Carwell's credible testimony. Both Duncan and Whitmore testified, as witnesses for the respondent, that Carwell walked into the office, declared lie had been given a Union button by another employee, and asked if Duncan wanted it. Whitmore stated that he did not pay any attention to what happened after that. Duncan, however, further testified that when he told Carwell that lie did not want the button, Carwell, nevertheless, took it off and handed it to him The button fell on the floor, he declared, and stayed there for "a day or two." On cross-examination, how- ever, Duncan stated that after the button fell to the floor he, Duncan, threw it into the ball. Neither Duncan nor Whitmore denied that the former made anti-Union remarks or that he forecast a raise in July. The Trial Examiner rejects, as unworthy of belief, the version of Duncan and Whitmore as to the first incident. 10 The finding rests upon the credible testimony of employee Rube Richardson, who over- heard the exchange from a point so close, according to his uncontradieted testimony, that lie could put his hands on the participants. Davis denied giving Mrs. Whitmore the advice quoted. Mrs Whitmore was not called as a witness . W. S. Strickland, Davis ' assistant who also was present according to Richardson, was not questioned about the incident. Strickland, as found hereinafter, openly campaigned against the Union, and instructed employees how to vote against the Union. The Trial Examiner does not accept Davis' denial as true. "Davis testified that he also supervises Strickland. He further testified , however, that while his own regular hours were from 6 a. m. to 4 p in., Strickland's regular hours were from 4 p in. to midnigb t. 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to vote at that time. He waited near the voting place, and when they had voted, ordered them back to the boiler room 12 Although the evidence establishes that Davis has the power to hire and to discharge, while Strickland does not have that authority, it makes plain, and the Trial Examiner finds, that Strickland's duties and rate of pay place him more nearly in alignment with management than with ordinary laborers at the mill. He is, as these workmen expressed it, their "boss man'' on the night shift and in Davis' absence. The Trial Examiner concludes and finds that Strickland holds a position wherein he reasonably reflects, to employees generally, manage- ment policies It is therefore found that the respondent must he held accountable for his anti-Union conduct. Following the issuance of the notice of hearing in these consolidated proceed- ings, Strickland learned from "overseers down there," according to his testimony, that a hearing was to be held. He went to a local attorney, and had him prepare for him a petition bearing the following text: To WILLIS SMITH, Attorney : We the undersigned employees of the Carolina (sic) Mills of Carrollton, Georgia are fully satisfied with the employment and the salaries, and we think that the election held on April 17, 1945, was fair, and no undue influence was used and no coercion used by the mill or any of the officers ; and as we understand, there's an effort made by the union to set aside that election and we want to employ you to appear in our behalf in opposition to the same. Thereafter, during the next few days, Strickland solicited signatures from em- ployees to the above petition, both at the mill during working hours and by visiting them at their homes. As a witness, Strickland admitted that he had made no inquiry when retaining Smith as to the amount of his fee. When asked to explain why lie had sought the services of Smith and had circulated the petition, lie stated that lie had heard that employees had said he had tried to get them to vote against the Union, and that ha; had "hired" the lawyer to. prove that he had engaged in such conduct The explanation given by Strickland as to the petition is unworthy of belief. In view of this testimony that he talked with "overseers" before retaining an attorney, and his open circulation of the petition, the Trial Examiner is con- vinced and finds that Strickland was acting with the respondent's approval. B. Conclusions as to the anti- union conduct above desci abed The foregoing findings established plainly that, since the issuance of the Board's Direction of Election on March 20, 1945, responsible officers, supervisors and agents of the respondent engaged in a campaign designed not only to restrain and coerce its employees iCopy with citationCopy as parenthetical citation