Cone Mills Corp.

National Labor Relations Board - Board Decisions

Jan 14, 1954

107 N.L.R.B. 866 (N.L.R.B. 1954)

866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operates the packing shed "as an incident to or in conjunc-
tion with" its farming operations , and not as a separate
commercial enterprise . In view of the foregoing , we find
the packing shed workers l ere involved to be "agricultural
laborers " within the meaning of Section 2 (3) of the National
Labor Relations Act.2
Accordingly, no question affecting commerce exists con-
cerning the representation of employees of the Employer
within the meaning of Section 9 (c) (1) of the Act, and we
shall dismiss the petition herein.
[The Board dismissed the petition.]
2 See Dofflemyer v. N L R B., 206 F 2d 813 (C. A 9).
CONE MILLS CORPORATION (TABARDREY PLANT) and
LOCAL UNION 295, UNITED TEXTILE WORKERS OF
AMERICA, AFL, Petitioner. Case No. 11-RC-416. Jan-
uary 14, 1954
SUPPLEMENTAL DECISION AND DIRECTION
Pursuant to a Decision and Direction of Election' issued
in this proceeding on November 5, 1952, a runoff election
by secret ballot was conducted on December 10, 1952, under
the direction and supervision of the Regional Director for the
Eleventh Region, among employees in the unit found appropriate
by the Board. Following the election, a tally of ballots was
furnished the parties. The tally shows that 399 ballots were
cast in the election of which 197 were for the Petitioner,
195 were against the Petitioner, 4 were void, and 3 were
challenged. As the challenged ballots were sufficient in number
to affect the results of the election, the Regional Director
investigated the eligibility of those individuals who wgre
challenged. Thereafter, on March 2, 1953, the Regional
Director is sued a report on challenges in which he recommended
that the challenges be overruled and that the ballots be opened
and counted.
On March 15 and 16, respectively, the Employer and the
Petitioner filed exceptions to the report on challenges and,
on March 18, the Petitioner filed a motion to strike the Em-
ployer's exceptions. On April 14, 1953, the Board issued an
Order denying the motion and directing a hearing on the
challenged ballots. Pursuant to this Order, a hearing was
held before Jerold B. Sindler, hearing officer, at which the
Employer and the Petitioner appeared and participated. On
August 3, 1953, the hearing officer issued and caused to be
1 Not reported in printed volumes of Board Decisions.
107 NLRB No. 159.
CONE MILLS CORPORATION 867
served on all parties concerned, his report on challenged
ballots containing his findings and recommendations. The
Employer and the Petitioner filed timely exceptions to the
hearing officer's findings and recommendations.
The Board has reviewed the rulings of the hearing officer
made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board,
having considered the hearing officer's report, the Petitioner's
and the Employer's exceptions, the Employer's brief in sup-
port of its exceptions, and the entire record in the case,
m- kes the following findings:
1. The Petitioner challenged the ballots of Ralph G. Mullis
and Benjamin H. King on the pound that they are supervisors
as defined in the amended Act. The hearing officer recommended
that the challenges to the eligibility of these individuals be
overruled and that their ballots be opened and counted.
Ralph G. Mullis is classified as an assistant fixer and works
in the winding department on the second shift. He is paid on an
hourly rate and is responsible for the general maintenance of
the machines under his care. The record shows that none of
the second- and third-shift fixers or the head loom fixer is
in a supervisory position. The record further shows that,
although Mullis may on occasion tell machine operators that
they are not operating the machine correctly, he does not have
authority to hire, discharge, discipline, assign work, or re-
sponsibly direct the employees working with him, or effectively
recommend such action.
Benjamin H. King is classified as head loom cleaner on the
first shift in the weave room. His classification was created
to provide for his retention as an older and experienced em-
ployee after King had decided he could no longer work as a
weaver. He is hourly paid and his duties are to act as general
handyman to pick up and sort in the weave room, act as a
messenger between the overseer and the weavers, and to keep
the storage room straightened out. In the course of his work
King may make routine assignments to the loom cleaners and
sweepers or instruct new employees. The record shows that
King does not have authority to hire, discharge, discipline,
or otherwise change the status of employees or effectively
recommend such action. Moreover, such direction, assignment
of work, or instruction of employees as is performed by King
is done in a routine manner not requiring the use of independent
judgment.
Upon the entire record, we find that employees Mullis and
King are not supervisors as defined in the amended Act and
we shall direct that the challenges as to those employees be
overruled and their ballots be opened and counted.
2. The Employer challenged the ballot of John W. Thompson
on the ground that he had been discharged prior to the date of
the runoff election. Thompson was hired by the Employer in
1945 and was classified as an electrician. In June 1952, recur-
rence of an old eye injury caused Thompson to seek medical
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
advice and he was treated by a Greensboro , North Carolina,
doctor . Thompson, at this time, submitted a statement by this
doctor concerning his illness to one of his supervisors, Rudy
Montgomery , and asked Montgomery for a leave of absence.
This leave was granted.
A few days after Thompson returned to work following this
leave, the plant shut down for a vacation period . On July 7,
1 week prior to the end of the vacation period , Thompson fell
and injured his ankle . As a result of this injury he went to a
Burlington , North Carolina, doctor for treatment and was
ordered to remain on crutches for from4 to 6 weeks . Thompson
was also given a general physical examination at this time by
the same physician and was told that his blood pressure was
down and that he was on the verge of a nervous breakdown. At
the end of the vacation period, Thompson sent a doctor's re-
port of his physical condition to Montgomery along with a re-
quest for a leave of absence . This report and request was
taken to Montgomery by Thompson ' s son who is also employed
at the Employer ' s plant . The son reported to Thompson that
Montgomery had told him that he would take care of the leave
of absence.
Thereafter , on August 19 and October 7, Thompson sent in
claims for disability payment under a company insurance
policy providing for a maximum disability period of 13 weeks.
These 2 claims, each for a period of 6 weeks , were paid. In
early October , Thompson also inquired as to his eligibility for
unemployment compensation and was referred to the Employer's
personnel office where Williams, the Employer ' s personnel
assistant , told him that the only way to qualify would be by way
of layoff or discharge . Williams also told Thompson that he
would have to be examined by a company doctor before return-
ing to work and inquired as to whether an appointment could be
set. Williams replied that he would speak to his personal phy-
sician and see what he advised . The same day, Williams also
spoke with Makin, the general manager, and his assistant,
Mitchell . Makin asked him concerning reports that Thompson
intended to go into the electrical contracting business . Thompson
stated that while he had received a license and intended to go
into business for himself eventually, he would have to get "in
shape " first . Thompson added that he intended to return to work
for the Employer and that he would give them noti c e when and
if he ever decided to quit . Makin informed him that his services
were needed at the plant and that the Employer would appreciate
his early return to work. Meanwhile Thompson was to keep in
touch with the Employer every 30 days and renew his sick leave.
On Makin ' s instructions , Thompson reported this conversation
to Montgomery on the same day and was told by the latter to
"just send word" and the leave would be renewed . Thompson
testified that from this date until the December 10 election, his
son notified Montgomery every 30 days that the sick leave was to
be renewed . The employer asserts, however , that Thompson
CONE MILLS CORPORATION 869
failed to make the requisite renewal early in November and
that he was discharged on returning to the plant.
On November 25, the first election was held at the Employer's
plant and Thompson voted without challenge. According to the
Employer, it was not until the 25ththatthe failure to renew the
sick leave was noticed and no effort was made, accordingly, to
contest Thompson's eligibility at the first election. On December
2, Thompson filed a claim for the remaining week of the dis-
ability benefits allowed under the plant insurance policy. This
claim was paid.
On December 10, a runoff election was held at the plant.
Although Thompson' s name appeared on the eligibility list
through what the Employer asserts was a clerical error, he was
challenged by Williams, for the Employer, when he appeared at
the polls. The challenge was based upon Thompson's failure to
renew his sick leave and the discharge based thereon. On the
same day, and after his ballot was changed, Thompson spoke
with Montgomery and asked him if he had turned in the sick
leave renewal requests tendered him through Thompson's son.
Montgomery replied that he had done so "up until right
recently" and added that he thought that the insurance claims
and the doctor' s statement that Montgomery had filed would be
sufficient.
The collective-bargaining contract in force atthe Employer's
plant during this period provided that "leaves may be granted
for a period not exceeding thirty days duration, except in cases
of pregnancy or illness, in which cases leaves of absence shall
be granted for the duration of such illness but not exceeding
twelve months. . . ." The Employer submitted an attendance
report and a termination of employment form prepared by
Williams on November 26 showing the discharge of Thompson
for violation of this contract rule. In accord with the Employer's
practice in these instances , however, Thompson was not noti-
fied of his termination and received his first information to
to that effect through the challenge to his ballot on December
10. Thompson did not, thereafter, file any grievance as to his
termination.
The hearing officer found that Thompson renewed his leave
of absence at consecutive intervals of 30 days or less between
July and December 10, and that Thompson was not, in fact,
terminated until February 24, 1953, when he appeared at the
plant to turn in his keys and was informed that his services
were not needed . The hearing officer discredited the testimony
of Personnel Assistant Williams who prepared the termination
papers and specifically did not credit the validity of those forms.
He found, accordingly, that Thompson was eligible to vote in the
election of December 10, and recommended that his ballot be
opened and counted. The Employer filed exceptions to this
finding and recommendation and we find merit in the excep-
tions.
As has been noted, the Employer contends that Thompson
was discharged on November 26, 1952. If the discharge was
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
effectuated as of that date it is clear that Thompson was not
eligible to cast a ballot in the runoff election which followed
on December 10. The sole question for our determination
herein, therefore, is whether or not the termination took place
as of that date. The Employer's personnel data submitted as
evidence in this proceeding support its contention. The hearing
officer discredited these documents but offered no grounds for
doing so. There is no evidence of fraud or mistake in these
records. In the absence of any evidence showing that these
papers were fraudulently prepared or otherwise incorrect,
their authenticity must be accepted. Under established prin-
ciples of evidence, records kept in the ordinary course of
business are admissible as evidence and, unless contradicted
or shown to be false by probative evidence, cannot be disre-
garded. We regard the action of the hearing officer in dis-
crediting them without reason as erroneous. Therefore, we
hold that Thompson was discharged on November 26. For the
purposes of this case, itis immaterial, and we do not determine
why he was discharged. Since he had been discharged prior to
December 10, he was not eligible to vote in the December 10
election.
Accordingly, we find that Thompson's employment with the
Employer was terminated on November 26, 1952. We further
find that Thompson was not eligible to vote in the December 10
runoff election and we sustain the challenge to his ballot.
[The Board directed that the Regional Director for the
Eleventh Region shall, pursuant to the Rules and Regulations
of the Board, within ten (10) days from the date of this Di-
rection, open and count these ballots and serve upon the parties
a supplemental tally of ballots, including therein the count of
said challenged ballots.]
Member, Murdock, dissenting in part:
While I concur with the majority opinion insofar as it
deals with the two ballots challenged on grounds of super-
visory status, I cannot agree with my colleagues' determina-
tion that the challenge to Thompson's vote should be sustained.
Both the evidence as developed at the hearing in this case and
the credibility findings made by the Board's hearing officer
show clearly and unmistakably that Thompson was not dis-
charged prior to the election as alleged by the Employer and
was, in fact, an employee eligible to vote on December 10.
As stated in the majority decision, the issue is one of
fact, i.e., was Thompson discharged prior to the date of the
runoff election? The majority decision finds that Thompson
was terminated and that the termination took place on November
26. I submit that this conclusion is incompatible with the record.
The finding made by the majority rests in its entirety upon the
personnel forms submitted by the Employer. As these forms
comprise the sole evidence, other than confused and contra-
dictory statements by the two officials of the Employer who
CONE MILLS CORPORATION 871
testified at the hearing, it is appropriate to examine them
carefully.
One of the forms is an attendance record which shows
little or nothing inasmuch as it is admitted that Thompson
was not at work but was on sick leave during the period in
question . The remaining form is a so -called termination
record which allegedly shows that Thompson was discharged
on November 26 for a "violation of rules" amplified as a
failure to "renew his leave of absent" (sic). The form further
states that the Employer would not reemploy Thompson under
normal circumstances or even if badly in need of help. Finally,
in answer to the question "Do you know of any reason why this
party would not be suitable for a job in another of the local
mills?" the form contains the answer "Yes," without further
explanation. The hearing officer found these forms were lack-
ing in credibility and without weight as evidence.
As noted, the termination form alleges that the reason for
Thompson's alleged discharge was a failure to renew his sick
leave. Thompson, however, testified that he sent his requests
for extension of leave to the Employer at intervals of 30 days
or less in the period between July and December 10. Thompson's
son completely corroborated his testimony in this regard. On
the opposite side of the ledger, no official or supervisor of the
Employer, including those to whom the requests were tendered,
denied receiving the extension requests or testified that they
were not submitted as stated by Thompson. But there are further
inconsistencies and contradictions between the forms and the
Employer's actions. The vice president of the Employer first
stated, in flat contradiction of the termination form, that
Thompson was discharged because the Employer did not think
that he intended to return to work. Later, he again testified
that this reason, not mentioned on the termination form, was the
cause of the alleged discharge along with the supposed failure to
renew the leave.
The termination form, itself, states on its face that it is to
be prepared by the overseer of the department of the employee
concerned. In this instance that overseer was Montgomery, the
supervisor to whom Thompson submitted the requests for ex-
tensions . For unexplained reasons, however, this procedure was
not followed in the instant case . Williams, the Employer's
personnel assistant , after first stating that he did not know who
prepared the termination form, later admitted that he had made
it out although his only duty with respect to such forms was re-
cording them. While Montgomery' s signature appears on the
document, according to the undenied testimony of Thompson,
Montgomery did not know that Thompson had been discharged
2 weeks later on December 10. Moreover, although Montgomery
supposedly participated in the alleged discharge on November
26, he nevertheless sent in Thompson's medical statement on
his illness on December 2 and told Thompson's son at that
time that he would take care of a further extension of the leave.
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In short, Thompson ' s overseer not only did not know of the
discharge several weeks after it was supposed to have been
made but, according to the undenied testimony , actually stated
that he would secure an extension of leave for a man he sup-
posedly had terminated a week before . Further, while the form
states that there were undisclosed reasons why Thompson
would not be suitable for reemployment at this or any of the
Employer's mills , both Montgomery and Thompson ' s other
supervisors told him the day before the alleged discharge that
they needed him and wished that he would return as quickly as
possible.
Faced with this evasive , contradictory , and inconsistent
evidence , the hearing officer, even aside from his opportunity
to observe the- demeanor of the witnesses , was fully justified
in his refusal to credit both the testimony of Williams and the
personnel forms which he allegedly prepared . If further
evidence is needed , however, it is also provided by the record.
Despite the alleged discharge of November 26, Thompson's
name appeared on the eligibility list for the runoff election
held 2 weeks later . No mention of Thompson ' s discharge was
made to the Union or the Board prior to the runoff election
although according to the Employer' s vice president , the names
of other dischargees were " red lined " and discussed by the
parties . That this rentention of Thompson ' s name could have
been a "clerical error," as weakly asserted herein, is com-
pletely incredible . Thompson, himself , was never notifiedbefore
the election that he was discharged and no request was made that
he turn in the gate and plant keys which he held or that he
pick up his toolbox at the plant.
Accordingly , as the overwhelming weight of the evidence
supports the credibility findings and recommendations of the
hearing officer , I would find that Thompson was an employee
of the Employer eligible to vote in the election of December
10, 1952, and would overrule the challenge to his ballot.
COMPLIANCE STATUS OF FURNITURE WORKERS, UPHOL-
STERERS AND WOODWORKERS UNION, LOCAL 576, IN-
DEPENDENT. January 14, 1954
ADMINISTRATIVE DETERMINATION
OF COMPLIANCE STATUS
California Wrought Iron, Inc., filed a motion dated October
13, 1953, to redetermine the compliance status of the above-
named labor organization , herein called Local 576, and to re-
voke the certification of representatives issued to it on Sep-
tember 24, 1952 , in California Wrought Iron , Inc., (Case No.
21-RC-2661) because of the lack of full compliance by Local
576 with Section 9 (h) of the Act.
107 NLRB No. 203.