Climax Spinning Co.

National Labor Relations Board - Board Decisions

Dec 19, 1952

101 N.L.R.B. 1193 (N.L.R.B. 1952)

CLIMAX SPINNING COMPANY 1193
whole for any loss of pay they may have suffered as a result of the dis-
crimination :
Billie Evans Dovey Crowley
Gertrude Smith Kenneth Cox
Madeline Barbee Dale Bader
Lena Weeks Joe Hacker
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of such labor
organization.
T. H. BURNS AND R. H. GILLESPIE,
D/B/A BURNS AND Gu.LESPIE,
Employer.
By -------------------------------------
(Representative ) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof , and must
not be altered, defaced, or covered by any other material.
CLIMAX SPINNING COMPANY and TEXTILE WORKERS UNION OF AMERICA,
CIO. Cases Nos. 11-CA--, 6,11-CA-348,11-CA-365, and 11-CA-
399 (Formerly Cases Nos. 34-CA-326, 34-CA-348, 34-CA-365, and
34-CA-399). December 19,159$
Decision and Order
On May 15, 1952, Trial Examiner Ralph Winkler issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. He also found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint and recommended dismissal of those allegations. There-
after, the Respondent filed exceptions to the Intermediate Report,
and a supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the exceptions and brief, and the entire record in the case, and hereby
Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as
amended, the Board has delegated its power in connection with this case to a three-member
panel [Members Houston, Murdock, and Styles].
101 NLRB No. 185.
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adopts the findings, conclusions , and recommendations of the Trial
Examiner.2
Order
Upon the entire record in the case, the National Labor Relations
Board hereby orders that Climax Spinning Company, Belmont, North
Carolina, its officers, agents, successors , and assigns , shall :
1. Cease and desist from :
(a) Discouraging membership in Textile Workers Union of Amer-
ica, CIO, or in any other labor organization of its employees, by dis-
charging, laying off, or refusing to reinstate any of them because of
membership or activities 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 to discharge
or lay off employees or to shut down plant operations or to deprive
employees of established employment conveniences or to increase
rents because of union. membership and activities, or in any other
manner interfering with, restraining, or coercing its employees in
the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist the aforestated or any other labor organization,
to bargain collectively through representatives of their own choos-
ing, to engage in concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to refrain from any
or all of such activities except to the extent that such rights may be
affected by an agreement requiring membership in a labor organza=
tion as a condition of employment, as authorized in Section 8 (a) (9)
of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to Edward Tesnear, George and Hazel Cogsdill, Ernest
Gilreath and Gilreath's wife, 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 of the Intermediate Report
entitled "The Remedy."
2 We assert jurisdiction herein on the basis of the Respondent 's direct out-of-State
shipment annually of goods valued at $25,000 or more. Stanialaus Implement and
Hardware Company, Limited, 91 NLRB 618.
Although the complaint contained no specific allegation of discrimination against Mrs.
Gilreath, the issues with respect to such discrimination were fully litigated at the hearing,
and an opportunity was afforded the Respondent to adduce testimony to refute the charge
of discrimination against her . Accordingly, we find immaterial any variance between the
allegations of the complaint and our finding in this connection . Fulton Bag and Cotton
Mills, 75 NLRB 883.
CLIMAX SPINNING COMPANY 1195
(b) Place Eugene and Ruth Stargel on a preferential hiring list
and offer them employment as vacancies occur in the manner described
in "The Remedy."
(c) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security pay-
ment records, time cards, personnel records and reports, and all other
records necessary to analyze the amount of back pay due and the
right of reinstatement under the terms of this Order.
(d) Post at its plant at Belmont, North Carolina, copies of the
notice attached hereto as Appendix.3 Copies of said notice, to be
furnished by the Regional Director for the Eleventh Region, shall,
after being duly signed by the Respondent, be posted immediately
upon receipt thereof and be maintained by it for sixty (60) consecu-
tive days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. The Respondent shall
take reasonable steps to insure that such notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for the Eleventh Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges discrimination against Eugene and Ruth
Stargel and Paul Moore.
P In the event that this Order Is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to a decision and order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in, or activities on behalf
Of, TEXTILE WORKERS UNION OF AMERICA, CIO, or in any other
labor organization, by discriminating in regard to hire or tenure
of employment or any term or condition of employment.
WE WILL NOT interrogate employees concerning their own or
other employees' union membership and activities.
WE WILL NOT threaten to discharge or lay off employees or to
shut down our plant or to increase rent or to deprive employees
of employment conveniences because of their union membership
and activities.
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organiza-
tion, to form labor organizations, to join or assist TEXTILE WORK-
ERS UNION OF AMERICA, CIO, or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain
from any or all such activities except to the extent that such
right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized
in Section 8 (a) (3) of the Act.
WE WILL place Eugene and Ruth Stargel on a preferential
hiring list and offer them employment when vacancies arise.
WE WILL offer to the following named employees immediate
and full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and
privileges enjoyed and make them whole for any loss of pay suf-
fered as a result of the discrimination against them :
Edward Tesnear
George and Hazel Cogsdill
Ernest Gilreath and his wife
CLIMAX SPINNING COMPANY,
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 and Recommended Order
STATEMENT OF THE CASE
Upon charges and amended charges filed by Textile Workers Union of America,
CIO, herein called the Union , the General Counsel for the National Labor Rela-
tions Board , by the Regional Director for the Fifth Region ( Baltimore, Mary-
land ), issued a consolidated complaint on January 31, 1952 , against Climax
Spinning Company, herein called the Respondent, alleging that the Respondent
had engaged in specified conduct violating Section 8 (a) (1) and ( 3) and Section
2 (6) and ( 7) of the Labor Management Relations Act, 1947, 61 Stat . 136, herein
called the Act. Copies of the complaint and charges were served upon the
Respondent , whereupon the Respondent filed an answer denying the commission
of the unfair labor practices alleged.
Pursuant to notice , a hearing was held in Charlotte, North Carolina, from
March 4 until March 6, 1952 , before the undersigned Trial Examiner. The
General Counsel and the Respondent were represented at the hearing and all
parties were afforded full opportunity to be heard , to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues. The undersigned
permitted the complaint to be amended by including an additional allegation of
CLIMAX SPINNING COMPANY 1197
discrimination and thereupon permitted the Respondent to amend, its answer by
denying the commission of the additional conduct alleged.
The parties were granted opportunity to present oral argument before the
Trial Examiner, and they also were granted permission to file briefs and pro-
-posed findings of fact and conclusions of law. A motion by the Respondent to
dismiss the complaint is disposed of in accordance with the following findings of
fact and conclusions of law.
Upon the record in the case, and upon observation of the demeanor of wit-
nesses, I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a North Carolina corporation with a plant in Belmont,
North Carolina, where it is engaged in the manufacture and sale of cotton yarns.
'The Respondent's yearly purchases and sales of goods in interstate commerce
respectively exceed $100,000.
I find that the Respondent is engaged in commerce within the meaning of
the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2 (5) of
the Act.
M. THE UNFAIR LABOR PRACTICES
The Union began organizing the Respondent's Belmont employees in January
1951. A union hall was engaged, membership cards and union literature were
distributed, and public meetings were held. The Union gave up its meeting hall
about May or June 1951 and no public meetings were held thereafter. The Re-
spondent knew of the Union's organizational campaign and it made known its
opposition to such activities through the conduct of Overseers Robert Leppard
and Roy Hovis and Second Hands George Ryan, J. H. Horton, and Horace
"Push" Green, all of whom I find to be supervisors' within the meaning of the
Act. I shall describe the threats, interrogation, and other unlawful conduct
of those management representatives in discussing each of the discrimination
-cases, with additional evidence to a similar effect in the concluding portion of
this section.
Edward Tesnear was discharged by Overseer Leppard on February 26, 1951,
after serving approximately 10 months in the Respondent's employ. I might
say at the outset that Tesnear impressed me as a completely trustworthy
witness.
Tesnear joined the Union about 3 weeks before his discharge . He attended
union meetings and, on and off the mill premises, he spoke to other employees
in the Union's behalf. Tesnear credibly testified that during the union cam-
paign, Overseer Leppard asked him what he thought about the Union, that
Tesnear replied it was the "best thing" that had ever happened in Belmont,
and that Leppard's rejoinder was that "we don't want nothing like that here, we
don't want any of that Union telling us what to do." 2 Shortly afterward,
A The second hands are subordinate to the overseers and each second hand responsibly
directs and otherwise supervises approximately 20 employees.
2 Leppard denies that he ever discussed the Union or union activities with Tesnear,
except that Tesnear brought up the subject at the time of Tesnear 's discharge . I do not
-credit this denial
1198 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
Tesnear asked Leppard for a company house, (The Respondent maintains a
"village" of some 90 company houses for Its employees , who pay a nominal rent
for such occupancy. As there are about 280 employees and therefore an insuffi-
cient number of houses to accommodate all employees, the houses-because of
the nominal rent-are considered desirable by the employees.) Leppard In-
formed Tesnear that 1 or 2 houses were unoccupied at the time but that he.
Leppard, had to keep them for men who were not "messed up with that damn
Union." Tesnear did not obtain a company house.
According to the testimony of Leppard and Second Hand Ryan, Tesnear did
not report for work on February 24, 1,951, and he gave no notice that he would
not appear, and the Respondent discharged Tesnear the following Monday.
February 26, allegedly because of this unexplained absence and because Tesnear
had also been absent without notice the preceding Saturday. Leppard further
testified that Tesnear told him on Monday, during the discharge conversation,
that it didn't "suit" Tesnear to work on Saturdays.
Tesnear's version of the discharge events is quite different from the Respond-
ent's and, in my opinion, the creditable one. Thus, on Friday, February 23,
Second Hand Ryan informed Tesnear that Leppard had changed the shift hours
for I he next day and Tesnear then told Ryan that he wouldn't be in that Saturday.
Ryan commented that "we ain't going to have nothing to run with anyhow" and
that another employee would be able to handle some work that day. Tesnear
did not work on Saturday, and when he reported at the mill on Monday, Lep-
pard called him aside saying, "You laid down on me Saturday." Tesnear
thereupon explained to Leppard that Ryan had consented to his absence on
Saturday and he recounted to Leppard the substance of his Friday conversation
with Ryan' Leppard's reply was that Tesnear and James Sanders, the latter
employee being active in the Union, "are too thick with this Union and you all
are getting it started too heavy in here. I have to do something about It, I
have got to separate you, and now Is my time and I am going to let you go."
Leppard also stated at the time that "I will get you now, and there is several
others in this plant that I will get to later."
Tesnear returned to the plant for a form to be executed by the Respondent
stating the reason for Tesnear's benefits. Leppard told Tesnear that he would
fill out the paper In a manner as would cause such benefits to be denied to
Tesnear because, Leppard explained to Tesnear, he "didn't see that anyone who
was in the Union had any right to unemployment [benefits]." Tesnear sought
a recommendation for a job elsewhere in June 1951. In giving Tesnear a recom-
mendation, Leppard told Tesnear, according to the latter's credible testimony,
that Tesnear was "a good fellow, if I just let that damn union alone and he was
going to do everything that he possibly could to keep that damn union out of
there."
Tesnear testified that he preferred not to work on Saturdays and that he had
earlier advised Ryan to that effect and that Ryan had told Tesnear on this
earlier occasion that Ryan would treat Tesnear like another employee, one
Preacher, who also did not like working and did not work every Saturday.
Ryan said on that occasion that he would make arrangements for someone else
"to run" Tesnear's job when he did not work Saturdays. Tesnear worked some
$ Although Tesnear 's testimony at pages 281 and 282 of the transcript states that he
told Ryan that be would not work on Saturdays at the changed schedule , I do not believe
that Tesnear properly understood the questions at the time as applying to days other
than Saturday , February 24. Tesnear 's entire testimony clarifies this pi4Ttieular matter
in my opinion and leaves no final questions in such respect.
CLIMAX SPINNING COMPANY 1199
Saturdays after this conversation , but he did not work on 8 Saturdays ` during
his 101month employment. Whenever Tesnear did not work he either obtained
prior• permission or notified the Respondent that he would, not be in. The Re-
spondent had never criticized his conduct in these respects before his discharge.'
In view of the circumstances attending Tesnear 's discharge , and considering
the other evidence of the Respondent 's hostility to the Union as set forth else-
where in this Report, I have no doubt that the Respondent discharged Tesnear
on February 26, 1951, because it believed he was a member of the Union, and I
reject Leppard's and Ryan 's claimed ignorance of Tesnear's union role and
the Respondent's further claim that unionism was not the reason for the
discharge.
George and Hazel Cogsdill , man and wife , had been in the Respondent 's employ
for approximately 5 and 7 years , respectively, when Overseer Hovis discharged
them in June 1951 .' Both Cogsdills joined the Union, regularly attended meetings
at the union hall , and spoke to other employees respeeting the Union ; they were
not otherwise particularly active in organizing the Respondent 's plant.
About April 1951, Overseer Hovis asked Mrs. Cogsdill whether she was in
favor of the Union and she replied that she was. Hovis then said , according to
Mrs. Cogsdill's credible testimony the denial of which by Hovis I do not credit,
that Superintendent Lineberger "would shut down the mill before he had a union
there" and that the rent in the company houses-the Cogsdills lived in such
house-would be substantially increased . Hovis also referred Mrs. Cogsdill to
a local union situation in 1934 when, he told her, "everybody went hungry,"
Hovis further stating, "would you not hate to see your babies sitting down there
hungry?" ( The Cogsdills have two young children.) A week later Hovis asked
Mrs. Cogsdill whether she had changed her mind about the Union; Mrs . Cogsdill
replied she had not. Hovis then said that the only employees whom he knew
to be union adherents were the Ledfords, Paul Moore, and the Cogsdills and he
asked Mrs. Cogsdill whether she knew any other union members and whether
she would divulge their names to Hovis. Mrs. Cogsdill refused to identify other
members to Hovis and Hovis' parting words were , "we are like one big family
in here now , but if that Union gets in here we won't be . You know we are good
to you, we let you go home when you want to and get your supper."
Hovis and Second Hand Green took a similar approach with Mr . Cogsdill.
Thus Hovis interrogated Cogsdill several times concerning his union attitude
and whether he had joined the organization' Cogsdill replied that the Union
"would be one of the best things that ever come to this country." Hovis also
stated that company housing rental would go up if the Union came in .' Green,
too, mentioned a rise in house rent to Cogsdill in discussing the Union with the
latter and stated that Superintendent Lineberger had seen a real estate man in
regard to leasing the company houses.
The Cogsdills worked under Green on the second shift, Mrs. Cogsdill as a
spinner. On Friday evening, June 8, Green went to his home at about 6 o'clock
and returned a half hour later, as was his daily practice. About 6 o'clock that
night, Mrs. Cogsdill became suddenly ill owing to a periodic menstrual disability;
4 Tesnear 's absences in 1950 were September 9, September 11-16, and October 7 ; in 1951
they were January 3-6, January 27, February 3, February 7-10, and February 24.
The transcript at page 537 incorrectly lists an absence on January 10. It is hereby
corrected to read February 10.
01 do not believe Leppard's conflicting testimony that Tesnear was out the Saturday
before his last absence without notifying the Respondent and I also therefore do not
believe Leppard ' s testimony as to an alleged criticism of Tesnear on that occasion.
0 Hovis testified that he asked Cogsdill "how is the Union coming along" and what
Cogsdlll thought about it.
R I do not credit Hovis' denial of Cogsdill's credible testimony as to rental.
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she went to the ladies room and hoped to find there the necessary medical sup-
plies to alleviate her situation . The usual medical supplies were not to be had
in the ladies room, and feeling faint and blood staining her clothes and not
finding Green in the mill , Mrs. Cogsdill went to her husband who was working
on the same shift . Mrs. Cogsdill advised her husband that she could not con-
tinue working that night . Cogsdill also looked for Green but could not find him
in the mill and the Cogsdills decided that Mr. Cogsdill should obtain Mrs. Emmo
Moore , who was employed by the Respondent on another shift and who lived
nearby, to relieve Mrs. Cogsdill on the job. Cogsdill went to Mrs. Moore's home
and both returned to the plant. Mrs. Cogsdill remained until Moore arrived and
she left after helping Moore set up the job. Green returned to the plant to dis-
cover Moore in Mrs. Cogsdill 's place and he and Cogsdill had some angry words
when Cogsdill explained the circumstances under which Mrs. Moore relieved
Mrs. Cogsdill . At one point during the interchange Cogsdill used the phrase
"damn you" in addressing Green.
The Respondent discharged the Cogsdills on June 11, the next working day.
Hovis testified that he fired the Cogsdills for obtaining a relief worker without
permission . Green testified that it would have been all right had Mrs. Cogsdill
left the mill under the circumstances of her disability but that obtaining Moore
to relieve her was a usurpation of managerial authority. Green further testified
that his home is closer to the mill than Mrs. Moore's home is and that Cogsdill
might therefore had gotten in touch with Green rather than obtain Moore. Green
also asserted that the Cogsdills should have obtained the permission of the head
doffer in any event and he and Hovis testified in this connection that the head
doffer is next in charge below the second hand when the second hand is unavail-
able. However, Bill Ledford had been a head doffer in 1951 during the first S
months of 1951 and therefore during the period of the Cogsdills' discharge-
Ledford credibly testified that Green had never advised him that his authority
extended Over the spinners, which was Mrs. Cogsdill's job, and no nonsupervisory
employees credibly testified to any instructions or other understanding on their
part that the head doffer had on-the-job authority over nondoffer employees.
Hovis testified that the second hands maintain a regular relief list of em-
ployees and that Mrs. Moore was fourth on the list, and he also testified that
Green probably would not have used the list under the circumstances but would
have obtained a replacement from another department on the same shift. Green
testified that he had arranged relief for Mrs. Cogsdill on other occasions. And
while I am inclined to believe Mrs. Cogsdill's testimony that she and other em-
ployees had relieved or substituted for each other without prior permission
before the advent of the Union and without any complaint from management,
I find it unnecessary to resolve the questions raised by the Respondent's contra-
verting testimony concerning the past practice of substitutions. However, there
is no question that substitutions had been made, the only conflict being whether
prior supervisory permission was necessary.
There is no claim or any showing that Mrs. Moore's replacement of Mrs. Cogs-
dill for a few hours on June 8 discommoded the Respondent's operations, and
there also is no showing, as far as the Respondent's case is concerned, that the Re-
spondent has suffered to its detriment wholesale substitutions in the past. Ac-
cording to Green, this was the first time that a substitution had been made
without permission. When Green was asked at the hearing why the Respondent
placed so much emphasis on the fact that the Cogsdills had obtained a replace-
ment and whether, on the contrary, the Cogsdills' conduct was not reasonable
under the circumstances and did not demonstrate initiative in the Respondent's:
CLIMAX SPINNING COMPANY 1201
behalf ,° Green replied merely, "if that instance had been passed over then we
would have had so much trouble with it, It would run into real trouble, this one
would do that, the other one would say, 'I will too.' " And when Green was fur-
ther asked whether a mere warning might not have been sufficient under the
circumstances , his reply was that a warning "might have been right at the time
being, but later why that warning would be forgotten."
The Respondent may discharge employees for any reason , no matter how
seemingly trivial or heartless the circumstances, without violating the Act, as
long as it does not take such action for reasons related to protected organizational
or concerted activities. Seeming triviality as an alleged reason for a discharge
is, however, a relevant consideration in determining whether an employer really
took the action for the reason claimed. Even apart from the Respondent's
attitude toward the Union, I find it difficult to accept the Respondent 's claim
that it discharged the Cogsdills because they usurped managerial authority.
But if it be claimed that I should not judge the Respondent's conduct by what
I consider to be the commonly accepted standards of persons, corporate or natu-
ral, any lingering doubt concerning the Respondent's motivation in discharging
the Cogsdills is set at rest by considering the Respondent's vigorous antipathy
toward the Union, such animus being amply demonstrated by the recitation in
other portions of this Report of the Respondent's antiunion efforts and by the
Respondent's expressed displeasure to the Cogsdills themselves concerning the
attempt to organize the Respondent' s mill.
In connection with the question of union motivation, the Respondent suggests
that it is relevant that the Cogsdills were not particularly active in the Union.
And in this connection, the Respondent elicited testimony to the effect that
other individuals, who were more active in the Union than the Cogsdills, were
not discharged or otherwise discriminated against. But this circumstance Is
of little or no significance unless the employer himself, charged with such
discriminatory conduct, testifies that it knew the identity of other union adherents
whom it also knew at the time to have been more active in union affairs than
the individuals discharged. Such testimony is not before me, and it is not
sufficient that the discharged employees were aware of other more active union
members. Moreover, even if an employer does know the degree of union activities
of each of its employees, an employer desirous of combating a union drive,
as the record shows the Respondent is, can get his point of the cost of union
membership across to the employee body with almost equal effectiveness by dis-
charging employees who are not quite so active. And with less risk of discovery
of unlawfulness, for the employer can always assert-"But why should I
discharge John Jones when I would have discharged the more active John
Smith if I were motivated by union considerations ." The test of unlawful
motivation is not necessarily whether the dischargee was particularly active
in the Union, although that is a relevant consideration under appropriate
circumstances, but whether the employer discharged an employee, be he relatively
active or inactive, because of union considerations.
I conclude that the Respondent discharged the Cogsdills on June 11, 1951,
because of their membership and interest in the Union.
Ernest Edsel Gilreath had been in the Respondent's employ for 9 years, including
2 years of military service, when his employment terminated in June 1951, about
2 weeks following the Respondent's discharge of the Cogsdills.
8 Particularly as Mrs. Cogsdill had nothing to gain by obtaining a substitute . For the
record shows that Mrs. Cogsdill told Moore, her replacement, to advise Green not to credit
Cogsdill as working beyond 6 o'clock that evening.
I
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gilreath joined the Union in January 1951 , distributed union literature Inside
and outside the plant , and attended union meetings at the union hall which
was rented from his mother . Horton , Gilreath's second hand , testified be had
beard rumors that Gilreath belonged to the Union. In April or May 1951,
Horton called Gilreath from his work and told Gilbreath that "a fellow"
had told Horton there would be "bloodshed" If Gilreath offered this "fellow"
a union card . Horton refused to give Gilreath the name of this "fellow," as
Gilreath requested, and said that "we are going to store up a bunch of trouble
there over it" and that he "wished " Gilreath would give up the Union. Gilreath
replied he would not give up the Union . Horton called Gilreath from his Job
another time, on this occasion to tell Gilreath that he, Horton , had tendered
his resignation to the plant superintendent because Horton believed the Union
had begun among the employees he supervised . Gilreath thereupon offered to
see the superintendent in Horton 's behalf but Horton declined the offer. Horton
was still employed by the Respondent at the hearing date in this matter, about
a year after this conversation with Gilreath.
Sometime in 1951, the Respondent converted some equipment in Gilreath's
department and also added an extra machine. Following this changeover the
three employees on each shift who worked on these machines had considerable
difficulty operating them and in keeping them in operation because of mechanical
defects . The strain of working on these particular machines, owing to their
defective performance and to the constant attention required of the operators,
had its impact on some of the operators , including Gilreath . Thus Gilreath
was made so nervous that several weeks before his discharge he was obliged
to obtain a 2-day vacation from work in order to relax . And another operator,
Vernon Ward, walked off his shift in April 1951 when he, Ward, could not start
up the machine? No disciplinary action was taken against Ward for this
conduct. Ward had not been a union member before that time.
Some of the equipment was in bad condition, the operators couldn't get
it running during Gilreath's shift on Friday, June 22, Gilreath went out of
the shop and stood on a platform directly outside the door. Gilreath told
Horton that the machines couldn 't be made to operate and that his nerves were
"tore all to pieces so bad I can't even stay in there where they are." Gilreath
testified that he also told Horton that he wouldn't work on the machines that
night ; Horton testified that Gilbreath said he wasn't going back "any more."
Horton told Gilreath, according to the latter's testimony, that Gilreath should
wait a few minutes while he inspected the machines. Gilreath remained there
15 minutes or longer but Horton never returned, and Gilreath left the mill
without returning inside.
When Gilreath reported at the mill the next working day, June 25, Horton
told him he had no job, that he had quit. Gilreath replied that he had
not quit but that he had only said he wouldn't work any longer Friday evening.
Horton also informed Gilreath that he had meanwhile replaced him with another
employee . This replacement , named Miller , was not a new employee but had
merely been transferred from another department to Gilreath's position, begin-
ning Monday. Mindful of the afore-mentioned conflict in testimony 1° as to
whether Gilreath had told Horton he was too nervous to finish out his shift on
Friday or whether Gilreath said he would never return to work on the ma-
9I do not credit Ryan's testimony controverting this credible testimony of Ward.
1° Employee Kenneth Graham testified that he saw Gilreath on the platform Friday
night and that he asked Gilreath, "what's is the matter , boy, can't you run them."
Gilreath replied, "I ain't going to." I consider this testimony consistent with both
conflicting versions.
CLIMAX SPINNING COMPANY 1203
chines, Horton was asked what objection he had to Gilreath continuing on his
regular Monday shift after being advised by Gilreath that Gilreath had not
intended to leave the plant permanently . Horton's answer was that he had
already replaced Gilreath with a man from another department which was not
running at full capacity , and the record shows that Miller 's former job has
not been filled.
It is uncontroverted that Gilreath had been complimented by his supervisors
in 1950 and 1951 and that Horton had told Gilreath and another employee
working with Gilreath that they were "two of the best hands" on their particu-
lar operation the Respondent "ever had."
Accepting arguendo Horton 's testimony , there was , at most, a misunderstand-
ing as to whether Gilreath intended only that he would not work out the
Friday shift or that he would not return "any more," and this misunderstanding,
if such it was, was cleared up before Gilreath 's next shift began on Monday.
Considering all the circumstances of this case, including Gilreath's long and
satisfactory service with the Respondent , the Respondent 's hostility to the
Union , and the Respondent 's efforts to discourage Gilreath 's own union mem-
bership , I find that the Respondent seized upon the Friday incident as a pretext
for getting rid of another union adherent . I also find in this connection that
Gilreath did not quit and that the Respondent never did believe he had.
Gilreath's wife was also terminated on June 25, 1951, because of a company
rule requiring the separation of an employee whose husband has been discharged.
I advised the parties at the hearing that I would consider Mrs. Gilreath's dis-
charge within the scope of the complaint should I find that her husband was
discriminated against . I therefore find that the Respondent also violated the
Act by discharging Mrs. Gilreath; but whether Mrs. Gilreath's discharge be
viewed as a separate violation or as a direct consequence of the discrimination
against her husband , I deem it appropriate to recommend a reinstatement and
make-whole order as to her as well."
Eugene and Ruth Stargel, husband and wife, had been employed by the Re-
spondent 4 years or longer when they voluntarily quit their employment and
left North Carolina and their company house in August 1951.
Both Stargels were union members, as Overseer Leppard testified he had heard
they were, and attended union meetings regularly ; they were not otherwsie
active in the organizational campaign. Leppard had asked each of the Stargels
during their employment what they thought of the Union, Mrs. Stargel replying
she saw nothing wrong with it, whereupon Leppard told her that the Respondent
would shut down the plant if the Union were voted in," adding that "We are
not going to have it in this mill, it causes nothing but trouble and nobody is
coming in here and tell us what to do and how to do it." George Ryan, Mrs.
Stargel's second hand, had also told her during this period, according to Mrs.
Stargel's credible testimony, that "I would be sorry if I got it in there, it didn't
cause nothing but trouble but it would make my job harder and I would not
be allowed to go smoke." Ryan further said that Mrs. Stargel had "an easy
job to what you will have when it [the Union] gets in here."
The Stargels returned to Belmont in September 1951, a month after they had
quit their job there, and in mid-September each of them separately sought reem-
ployment from Overseer Leppard. Leppard told them he had no openings at the
time but that he would hire them if vacancies arose. Each of the Stargels again
applied to Leppard a week or two later and Mr. Stargel reapplied a third time
m Mexia Textile Mills V. N. L. R. B., 110 F. 2d 505 (C. A. 5), enforcing 11 NLRB 1167,
1174-1175; N. L. R B V. J. G Boswell Co., 136 F. 2d 585, 594-596 (C. A. 9).
12 Leppard denies this shutdown testimony.
242305- 53 -77
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as well. Mrs. Stargel told Leppard on the occasion of her second application that
she had heard there was an opening . Leppard told her, "Ruth, I would not
thought you and Gene would have worked for the Union like you did." Leppard
went on to say that the Stargels " are as good hands as I ever worked or ever
will work but it is a known fact we are not having this Union in this mill ; just
go somewhere else and get you a job and I will give you a good recommendation
anywhere you go." Leppard brought up the union matter with Mr. Stargel as
well, telling Stargel he (Leppard) had heard both Stargels were "first class union
workers" and that the Stargels "would talk union" whenever each of them went
to the rest room. Leppard also advised Stargel, as he did Mrs. Stargel, to get
a job elsewhere and that he would give Stargel a "good recommendation."
No job being offered the Stargels by Leppard,U the Stargels sought the
assistance of Second Hand Ryan in obtaining employment with the Respondent.
Ryan told them, this was in October 1951, that Leppard was against the Union
and he advised Stargel, in order to get a job , that "every time you get around
the old man [Leppard] give that Union the devil, you know he is bad against it."
Although the Respondent first asserted that a reason for not reemploying the
Stargels was that they were undependable because they had left their employ-
ment and their company house without prior notice and with their company house
left open, Leppard finally testified in effect that his only reason for not hiring
them was that no vacancies existed at the time of their application. The record
discloses that a vacancy arose after the Stargels' first application but Leppard
testified, without contradiction, that the job had been filled when the Stargels
later saw him about a job. Leppard testified that he "guess[ed]" he would have
hired Stargel had Stargel been at the mill while the vacancy existed and he
further testified in this connection that the Respondent's practice was to hire
personnel at its door and that it does not seek out persons who had previously
applied but for whom no vacancy existed at the time of their application.
It is not enough, in order that unlawful discrimination as to a job applicant
be proved, that it be shown that an employer is hostile to a union, that the
employer has discriminated against other employees because of their organiza-
tional activities, and even that the employer has indicated its union hostility to
the applicant in question at the time of application. All these circumstances are
a persuasive demonstration of an employer's inclination but they do not prove
discrimination unless it also be shown that a vacancy existed. The record shows
there were no openings and I shall therefore recommend dismissing the com-
plaint as to the Stargels. ,
Paul Moore was discharged in February 1952, after 13 years employment with
the Respondent.
Moore joined the Union at the beginning of its drive; he attended meetings and
distributed union literature on and off the mill premises. Overseer Hovis fre-
quently spoke to Moore concerning the Union, and Hovis admits that Moore had
told Hovis he favored the Union. During these conversations with Moore, Hovis
asked Moore how he felt about the Union and whether he was a member and
Hovis told Moore to consider the matter carefully in view of a local union situa-
tion in 1934 when, Hovis told Moore, "all might nigh starved to death." Hovis
also told Moore he "wished" Moore would leave the Union and that he "would
stick" by those who "stuck" by him. The Union gave,up its hall and the general
distribution of literature and the public meetings ceased about May 1951. Some
P3 Leppard denied discussing the Union with the Stargels during their applications except
to tell Mr. Stargel the last time , in response to Stargel 's question , that he had heard
they were "pretty active."
CLIMAX SPINNING COMPANY 1205
employees , Moore among them, retained their interest in the organization and
continued to discuss the Union and to receive union literature through the mail.
About midnight on Friday, February 1,1952 , Moore and some five friends began
a friendly game of cards at Moore's company house . The game lasted through
the night until the next morning. The entire group drank one pint of liquor.
Farlin Parker , a second hand in the Respondent 's plant, occupied the company
house next door to Moore. Parker testified that he and his wife were disturbed
several times during the early hours of Saturday morning by loud talking from
Moore's house and by cars driving across his lot to go to Moore 's house. Parker
also testified that one of these cars knocked down his clothesline during the night
and that he asked Hovis for some pipe on Saturday morning in order to barricade
his lot to prevent such future ingress. Mary Lee Tevepaugh also testified that
her husband had been playing cards at Moore 's house that night and that when
he was still playing at 10 o'clock Saturday morning she complained to Hovis.
Hovis discharged Moore on Monday , February 4, 1952 , telling him at the time
that he could reapply for a job after moving from the mill village. Hovis testi-
fied at first that he discharged Moore for card playing and drinking in his com-
pany house. And in this connection, Hovis testified to a company rule which
operated against employees who permitted such activities in their company
houses. Hovis was not a particularly trustworthy witness and I encountered
difficulty in determining from his testimony exactly how this so-called rule
operates . At times during his testimony it appeared that the Company per-
mitted no gambling at all on company premises . At other times it appeared that
gambling was permitted so long as the neighbors were not disturbed . Then at
times I could not tell from Hovis' testimony whether he had known of gambling
in other company houses or whether this was the first time he had heard of
such activity . Hovis also changed his testimony to the effect that drinking had
nothing to do with Moore 's discharge , that he had not known when discharging
Moore that there had been drinking that night.
Hovis testified that he had received many complaints concerning card playing
in Moore's house during the last 5 years of Moore's employment and that he
had laid off Moore for similar reasons in 1947 for a 2-week period. Moore testi-
fied that Hovis had frequently asked him whether he had been a party to various
village disorders , even when Moore was not involved , and that Hovis had fre-
quently told him that Hovis "was going to have this drinking stopped on the mill
village." Moore testified that he has played cards in other company houses,
and the record shows that no other employee has been discharged for this reason
although other employees have been disciplined for causing other disturbances
in the company village.
In July or August 1951 , Hovis permitted Moore to change his shift and gave
Moore's wife a job at the same time.
Despite my reservations as to Hovis' credibility , I do not believe a preponder-
ance of testimony supports the complaint as to Moore , particularly because of the
timing of the discharge vis-a-vis the general organizational activities and also
because Hovis had hired Moore's wife and permitted him to change his shift
as indicated above. I shall recommend dismissal , therefore.
Further Evidence of the Respondent 's Conduct in Combating the Union, and
Conclusions of Unlawfulness
The record contains further evidence of the Respondent 's hostility to the
Union and its efforts to defeat the organizational drive. Thus, employee
Vernon Ward credibly testified that Overseer Leppard asked Ward in March
1951 whether Ward 's wife was " talking for the Union" and Leppard asked Ward
1206 DECISIONS QF NATIONAL LABOR RELATIONS BOARD
to "help talk and keep the Union out of the plant." Leppard told Ward the
following month that "some of the older employees could not hold a job if we
had a Union in there." Overseer Hovis also told employee Bill Ledford in
March 1951, according to the latter's credible testimony, that "We should not be
organizing labor and everything, they tried it in 1934, and it would not work,
they all liked to have starved to death then, that the Union just would not work
in that place." On another occasion Hovis told Ledford that "if you don't
quit messing with that Union you are liable to starve" and that a Union in the
plant might mean a wage increase but that it would also result in a heavier
workload on the employees.
Second Hands Green and Ryan each told employee James Sanders, according
to Sanders' credible testimony, that the Respondent could always find a pretext
for discharging an employee whom it desired to be rid of for union reasons.
Ryan said that the Respondent would make it "pretty tough" on those working in
the Union's behalf and he also quoted Superintendent Lineberger to Sanders as
saying that "there won 't be any union at Climax ; I won 't have any Union at
Climax." That the Respondent maintained its antiunion vigilance even after
the cessation of public organizational meetings appears from the credible
testimony of Berlin Schuler. When Schuler applied for a job to Overseer
Leppard in October 1951, Leppard asked Schuler how he felt about the Union
and stated that "We would like to have loyal employees, that are loyal to the
employers." Schuler told Leppard he had not thought much about the Union
and he assured Leppard of his "loyalty." Leppard instructed Schuler to report
for work the next day."'
The Respondent's conduct in opposing the Union by unlawful means was
widespread and intense, as indicated from the activities of its various overseers
and second hands described throughout this Report. On the basis of such
activities I find that the Respondent has violated Section 8 (a) (1) of the Act
in the following respects : Warning and coercing its employees by threats of
reprisal and promises of benefit to refrain from or discontinue their union
membership and activities, including threats of loss of employment, mill shut-
downs, increased rental of company housing, and withdrawal of benefits ; and
interrogating employees concerning their own and other employees' membership
and interest in the Union. And I find that the Respondent violated Section 8
(a) (1) and (3) of the Act by discriminating against Tesnear, the Gilreaths,
and the Cogsdills.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and that it take certain
affirmative action in effectuation of the policies of the Act.
14 Leppard told Schuler on this occasion that the latter 's wife had been "mixed up" In
the Union but that "she had learned better." Leppard testified that Schuler's wife had
advised him that she had been a union member but that she wouldn 't have anything
further to do with it.
CLIMAX SPINNING COMPANY 1207
I shall recommend that the Respondent offer immediate and full reinstatement
to Edward Tesnear, George and Hazel Cogsdill, and Ernest Gilreath and his
wife16 to their former or substantially equivalent positions 04 without prejudice
to their seniority or other rights and privileges and make them whole for any
loss of pay resulting from the discrimination against them, by paying them a sum
of money equal to the amount they would have earned from the dates of their
respective discharges to the date of offer of reinstatement less their net earn-
ings" to be computed on a quarterly basis in the manner established by the
Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. Earnings in one
quarter shall have no effect upon the back-pay liability for any other such period.
It will also be recommended that the Respondent make available to the Board,
upon request, payroll and other records to facilitate checking the back pay due
F. W. Woolworth Company, supra.
As indicated earlier in this Report, the Respondent maintains a "village" of
90 company houses solely for the use of its employees at a nominal rental, and
the occupancy of these houses at the nominal rental is a valuable incident of
employment status 'B to those of the Respondent's 280 employees who have such
housing. Those employees involved in this case who suffered discrimination and
who occupied company houses at the dates of their discrimination were deprived
of such housing as a direct consequence of their discrimination. The afore-
mentioned requirement to make all these employees whole will therefore include
payment to them of the sums of money which they paid as rental for living
quarters from the date of their termination until such time as the Respondent
offers them employment together with company houses equivalent to the houses
they occupied at the time of their termination, plus such additional expenses
which they incurred as a direct result of their moving from, and returning to, the
company houses, but less the amounts these employees would have paid as rent
for their company houses during said period.19
I have not found that the Respondent had job openings for George and
Ruth Stargel when they applied for reemployment and I accordingly did not find
that the Respondent discriminated against them by failing to employ them
at the time. Considering the facts of this case, however, including the Re-
spondent's "multiple violations of the Act and strenuous hostility toward the
[Union]s10 and, particularly, Overseer Leppard's statement of hostility regard-
ing the Stargels own union membership and activities at the time of their
applications to him, I believe there is grave danger of discrimination against
them in regard to their future job opportunities at the Respondent's plant.
This case indicates that the Respondent has resorted to pretexts in getting
rid of employees for union reasons and there is much basis to anticipate that
the Respondent may resort to pretexts to avoid hiring the Stargels for the
same reason. I believe, therefore, that reasonable assurance of nondiscrim-
inatory treatment as to the Stargels requires that the Respondent place the
Stargels on a preferential hiring list and that the Respondent offer them the
next openings in the same or substantially similar positions which they occu-
pied in 1951 or in any other position for which they are qualified and in which
ns See note 11, supra.
99 The Chase National Bank of the City of New York, Ban Juan, Puerto Rico, Branch,
65 NLRB 827.
11 Crossett Lumber Company, 8 NLRB 444, 497-498.
Ps Industrial Cotton Milts Company, 50 NLRB 855.
119 Pacific Mills, 91 NLRB 60 ; W. T. Carter and Brother, 90 NLRB 2020, 2027; and
Sellers Manufacturing Company , 92 NLRB 279, 296.
20 N. L. R. B. v. J. G. Boswell Co., 136 F. 2d 585, 596 (C. A. 9).
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they are interested. In recommending such order I am mindful of the fact
that each of the Stargels had long service in the Respondent 's employ and that
Leppard testified he would have hired them at the time of their application had
vacancies existed.
In view of the nature of the unfair labor practices committed , I shall also
recommend that the Respondent cease and desist from infringing in any manner
upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record
in the case, I make the following :
CONCLUsIoNS OF LAW
1. The Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 ( a) (1) and (3) of the Act.
2. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
A' N. L R. B. v. J. G. Boswell Co , supra ; South Carolina Granite Company, 58, NLRB
1448, 1468-1469, enforced 152 F . 2d 25 (C. A. 4).
THE HOUSTON CHRONICLE PUBLISHING COMPANY and AMERICAN
NEWSPAPER GUILD, CIO, AND ITS LOCAL 113. Case No. p99-CA-157.
December 19, 1952
Decision and Order
On December 11, 1951, Trial Examiner Sidney Lindner issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed a
statement of exceptions to the Intermediate Report.
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed.' The Board has considered the Intermediate Report,' the
Respondent's statement of exceptions, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner with the following additions and modifications.
At the bearing the Trial Examiner correctly overruled the Respondent's objection to
the receipt of evidence on the ground that the record does not show the charging Union's
compliance with the filing requirements of Section 9 (f), (g), and (h) of the amended Act.
Moreover, we are administratively advised that the local Union, its parent Union, and the
International Union with which it is affiliated were, at all pertinent times, in compliance
with the filing requirements of the amended Act. N. L. R. B. v. Red Rock Co., 178 F. 2d
76 (C. A. 5), certiorari denied 341 U. S. 950.
t The Trial Examiner referred inaccurately to the Respondent's average daily out-of-
State circulation. The record shows that the Respondent sells out of State approximately
1,294 daily, and 2 ,000 Sunday, newspapers . This correction does not affect our con-
currence in the Trial Examiner's finding that the Respondent is engaged in commerce
within the meaning of the Act.
101 NLRB No. 198.