Cookeville Shirt Co.

National Labor Relations Board - Board Decisions

Sep 15, 1948

79 N.L.R.B. 667 (N.L.R.B. 1948)

In the Matter Of COOKEVILLE SHIRT COMPANY AND P. M. FRENCH and
UNITED GARMENT WORKERS OF AMERICA, LOCAL UNION No. 323,
A. F. OF L.
Caae 'No. -10-C-1942-Decided September 15,1948
DECISION
AND
ORDER
On September 25, 1947, Trial Examiner Thomas S. Wilson issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents, Cookeville Shirt Company and P. M. French, had
engaged and were engaging in certain unfair labor practices' and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Respondents filed exceptions to the
Intermediate Report, together with a supporting brief, and moved to
dismiss the complaint. Counsel for the Board also filed exceptions to
the Intermediate Report.
The Board 2 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed." The Respondents' motion, filed with
the Board, to dismiss the complaint alleges that certain of the charges
in this case were filed with respect to unfair labor practices which
3 Those provisions of Section 8 (1), 8 (3 ), and 8 (5) of the National Labor Relations
Act, which the Trial Examiner herein found were violated , are continued in Section 8 (a)
(1), 8 (a) (3 ), and 8 (a) (5) of the Act , as amended by Labor Management Relations Act,
1947.
2,Pursuant to the proylslops ., oP Section 3 (b) of the Act, as amended , the Board has
delegated its powers in connection with this case to a three -man panel consisting of the
undersigned Board Members [ Houston , Reynolds , and Gray].
3 The Respondents excepted to the Examiner 's action in granting the motion of counsel
for the Board that the allegations in the complaint with respect to Ray Vaughn, who at
the time of the hearing was in military service, be dismissed without prejudice. This
exception is overruled.
The Board , on August 16, 1948, was advised by the Regional Director that on October
31, 1947, upon his discharge from military service, Ray Vaughn filed a charge in his own
behalf in Case No. 10-CA-102 and that a complaint has issued in that case . The Regional
Director therefore requested the Board to reopen and remand the instant case and con-
solidate it with Case No. 10-CA-102 for the purposes of hearing . This request has been
denied.
79 N. L. R.B,No.88.
667
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
antedated the charges by more than 6 months, and that under Section
10 (b) of the amended Act' the Board had no authority to issue the
complaint in the instant case insofar as it is based on those charges.
This motion is denied for the reasons indicated in an earlier decision.4
The Board has considered the Intermediate Report, the exceptions
of the Respondents and, of counsel for the Board ,5 and the entire
record in this case. To the extent that they are consistent with this
Decision and Order, the Board adopts the findings, conclusions, and
recommendations of the Trial Examiner.
1. The Trial Examiner found that the speeches delivered by the
Respondent P. M. French to the employees on April 12 and 15, 1946,
contained implied threats to dlscliai'ge the employees and to remove
the plant if the Union won the election, which was to be held on
April 16, 1946. We do not agree with the Trial Examiner's interpre-
tation of French's remarks and, accordingly, find that these speeches
contained no implied threats of * economic reprisals and were not
unlawful.
2. The Trial Examiner foimd that the shut-down of April '18, 1946,
interfered 'with, restrained, and coerced the employees aild that its
purpose was to indicate the Respondent's' displeasure at the results of
the election of April 16, which was'won by the Union. The Examiner,
accordingly, concluded that the shut-down was unlawful
However, despite the- suspicious timing of the April 18 shut-down;
vis-a-vis the election, v. e are unable to find on the preponderance of
the evidence that it constitiited•-a violation of the Act.' We believe
that the production bottlenecks, which - the Trial Examiner found
to exist at that time, amply account for that shut-down as well as for
subsequent curtailments of operations up to June 1, 1946.7 The un-
contradicted evidence shows that during these shut-downs the inspec-
tion department and,pressing room, where the bottlenecks existed, con-
tinued to operate full time excep't•for a.period of 11 hours. during
Matter of Briggs Manufacturing Company, 75 N. L. R. B 569 The Respondents'
request for oral argument before the Board is,also denied as•the•issues and the contentions
`cif the parties are fully set forth in the record and briefs.
' Counsel for the Board excepted to the failure of the Examiner to find that the shut-
down and lay-offs between April 18 and September 9. 1946, violated Section 8 (1) and
8 (3) of'the Act , and'to the Examiner 's refusal to issue a blanket order against Respond-
ent French requiring him to desist from unfair labor practices in plants other than the
one here involved. These exceptions are overruled for reasons set forth below.
6 Although it is a suspicious circumstance , we do not find persuasive the evidence of the
statement made on April 18. by Mattee Jernigan , head forelady of the sewing departments,
attributing the shut-down of that date to ' the fact that the employees affected thereby had
voted in the election of April 16 . So far as the record indicates Jernigan ' s interpretation
of the shut -down may have been mere conjectuie on her part. -
7 As for the reductions in operations between June 17 and September 9, 1946, we find,
contrary to the contention of counsel for the Board , that they were not ,based on anti-union
considerations , but were due to material shortages.
COOKEVILLE SHIRT COMPANY 669
which the-inspectors were laid off. We are satisfied that this lay-off
of the inspectors, as testified by Plant Superintendent Glenn, was
necessary to give the pressers an opportunity to reduce their growing
backlog.
3. We do not agree with the Examiner's conclusion that the dis-
charges of Herbert Lawson, Nettie Johnson, Frances Neal, and Dimple
Warren were discriminatory. We shall, therefore, dismiss the com-
plaint as to them.
Herbert Lawson
The record fails to establish athrnlatively any anti-union niotiva-
tion for Lawson's discharge. Lawson himself was not a member of,
or active on behalf of, the Union. The Examiner found, however,
that he was discharged for refusing to suppress union activity among
the employees in the cutting room, of which he was foreman. But it
appears from the excerpts of the pertinent testimony set forth in the
Intermediate Report, when read in their context, that the only union
activity in the cutting room which Glenn objected to, and ordered
Lawson to suppress, consisted of discussion and solicitation during
working hours .8 Accordingly, even if Lawson was discharged, as the
Examiner finds, for countenancing such activity, his discharge would
not, in our opinion, be unlawful.
Nettie Johnson and Frances [Veal
Both these employees were discharged under parallel circumstances.
.Both joined the Union about the middle of February 1946; neither was
active iii union a ft airs. Both were discharged about the same time,
Johnson on May 29, 1946, and Neal on June 5, 1946. Both admitted
that the quality of their work had been repeatedly criticized by Glenn
and Jernigan. The Trial Examiner found that Neal's work was de-
ficient in both quantity and quality. As to Johnson, while finding that
her output was quantitatively adequate, the Examiner did not make
any express finding with respect to the Respondents' contention that
her work was of unsatisfactory quality. This contention is supported
by convincing evidence in the record. We find, therefore, that the
Respondent Corporation had legitimate reasons for discharging both
these employees. That they were, in fact, discharged because of their
poor work is established, in our opinion, by the fact that both were
discharged only after they had refused to promise to try to improve
' Even Glenn's suggestion to Lawson that he emulate a cutting room foreman in a union-
shop plant who had "got rid" of some of his cutters, was tied in with Glenn's complaint
about union activity by Lawson's cutters duaing working hours.
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their work,9 and by the further fact, as found by the Examiner, that
French, shortly after Johnson's discharge, offered her reemployment,
which she declined, and that he also gave Neal an opportunity to dis-
cuss her discharge, which opportunity she rejected.
As against this persuasive evidence that Johnson and Neal were
discharged for inefficiency, the only evidence of possible anti-union
motivation for their discharge consists of the fact that they, together
with many of the other employees, were members of the Union and
wore union buttons. On this record we do not believe that there is
sufficient basis for a finding that their. discharge was discriminatory.
Dimple Warren
The Respondents contended that Dimple Warreii was discharged
for talking and calling for work in too loud- a voice, for leaving her
machine before quitting time, and for bad work.
The Examiner discounted the evidence adduced in support of these
contentions largely because of the fact that Warren for the most part
met, or exceeded, her production quota. However, the only affirmative
evidence of anti-union motivation cited by the Examiner consists of .
the fact that she was known to Glenn to be a member of the Union, and
had distributed and collected a few union cards.
On the entire record we do not find sufficient basis for holding the
discharge to be unlawful.
4. The Trial Examiner's conclusion that the Respondents violated
Section 8 (5) of the Act is amply supported by the record.
The unilateral wage increase of October 25, 1946, announced by
French to the employees without prior notice to the Union, was per se
a violation of Section 8 (5). It'is no defense, under the circumstances,
that wage increases were granted simultaneously in certain other
plants with which Respondent French was connected 10 In addition,
the Respondents' insistence on the Union's furnishing an indemnity
bond as a condition of the execution of any binding agreement was
evidence of bad faith.1' Further evidence of bad faith is afforded by
the Respondents' insistence, at least during the early stages of the
negotiations, that, despite the Board's certification of the Union as
Y we think it significant that on the same day that Johnson was discharged, after
discovery of a defective bundle attributed to her and her refusal to promise improvement,
Neal, who was also charged by Glenn with defective work in connection with the same
bundle, was retained after giving the promise which Johnson had withheld . It was only
after Neal failed to show improvement and declined to repeat her promise to try to do
better, that she was finally discharged on June 5, 1946.
10 May Dept . Stores v . N. L R B., 326 U . S 376, 385.
11 Matter of Scripto Manufacturing Company, 36 N. L. It. B . 411, 421 ; Matter of Benson
Produce Co ., 71 N. L. It. B. 888.
t
COOKEVILLE SHIRT COMPANY 671
the exclusive representative of all the employees in the unit, the Union
be. recognized as the representative of its members only.12 .' .
Thus, we agree with the Examiner's conclusion that the Respondents
refused to bargain in violation of the Act; however, we find that this
violation first occurred on October 25, 1946, and not, as the Examiner
found, on September 28, 1946. While the first bargaining conference
took place on the latter date, the Respondents at that meeting, upon
seeing the Union's proposals for the first time, requested (and ob-
tained) more time to consider these proposals. This was a reasonable
request and we do not consider it as in itself a refusal to bargain, or
as reflecting on the Respondents' good faith.
We find, therefore, that on and after October 25, 1946, the Respond-
ents violated Section 8 (5) and (1) of the Act.
5. Respondent French was vice president of the Respondent Cor-
poration and represented it in its negotiations with the Union. It is
clear, therefore, that he was acting in the interest and'as an agent of
the. Respondent Corporation. We therefore find him to be an "em-
ployer" within the definition of that term in Section 2 (2) both of
the original Act and of the amended Act. In this view it is not neces-
sary, as counsel for French contends, to find that French, himself, is
engaged in interstate commerce."
- In view of the prominent role played by French in connection
with the Respondent Corporation's violation of Section 8' (5) and (1)
we find it necessary, in order to effectuate the policies of the Act, to
adopt the Examiner's recommendation and direct our remedial order
against French, as well as against the Respondent Corporation 14
- The Examiner expressed the view that if, in certain other cases,
involving other plants with which French is associated, the Board
should sustain the findings made by the Trial Examiners therein,
that French engaged in, or was responsible for, unfair labor practices
at those plants, the Board should in the instant - case, issue a blanket
order that French cease and desist from engaging in unfair labor
practices not only at the Cookeville plant but also in all the other 18
or 20 plants of which he is an officer. We do not believe, however,
that it would be appropriate to issue such a blanket order in this
case.15
" National Licorice Co. v N. L. R. B.; 309 U. S . 350, 358
While the Respondents during the course of the negotiations receded from this position,
their defiance , even though temporary , of the express statutory direction to bargain with
the Union as the exclusive representative of all the employees in the unit, indicates a dis-
position to avoid their responsibilities under Section 8 (5) of the Act.
13 French 's counsel correctly points out that the Trial Examiner erred in imputing to
French an admission that he ,was engaged in, commerce.
14 Matter of Republican Publishing Company, 73 N. L. R. B. 1085; Matter of Holtville
Ice and Cold Storage Company, 61 N. L. R. B. 596.
31 See Reliance Manufacturing Company v. N. L. R. B., 125 F. (2d) 311, 321 (C. C. A. 7).
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Remedy
The Examiner, among other measures designed to effectuate the
policies of the Act, recommended that the Board direct the Respond-
ents, upon request, to bargain collectively with the Union as the ex-
clusive representative of the employees in the appropriate unit. How-
ever, the Union has not complied with the provisions of Section 9 (f),
(g),' and (h) of the Act, as amended. Accordingly, for reasons set
forth in prior decisions, our Order directing the Respondents to bar-
gain with the Union will be conditioned upon compliance by the
Union with the above-cited Section of the Act, as amended, within
thirty (30) days from the date of the Order herein. e
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Cookeville Shirt
Company, Cookeville, Tennessee, its officers, agents, successors, and
assigns, and the Respondent P. M. French, acting in the interest of
Cookeville Shirt Company, and his agents, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with United Garment Work-
ers of America, Local Union No. 323, A. F. of L., if and when said
labor organization shall have complied within thirty (30) days from
the date of this Order with the filing requirements of Section 9 of
the National Labor Relations Act, as amended, as the exclusive repre-
sentative of all employees of the Respondent, Cookeville Shirt Com-
pany, at the Cookeville plant, excluding guards, watchmen, clerical
and maintenance employees, and all supervisors as defined in the Act;
fib) In any other manner interfering with the efforts of United
`Garment Workers of America, Local Union No. 323, A. F. of L., to
negotiate for, or to represent, the employees in the aforesaid bargain-
ing unit as their exclusive bargaining agent, if and when said labor
organization has complied with the filing requirements of the amended
Act, as hereinabove set forth.
2. Take the fo11o,,"-ing affirmative action, which the Board finds.will
effectuate the policies of the Act :
(a) Upon request, and upon compliance by the Union with the filing
requirements of the Act, as amended, in the manner set forth above,
bargain collectively with United Garment Workers of America, Local
u Matter of Marshall and Bruce Company , 75 N L. R. B. 90.
COOKEVILLE SFIIRT COMPANY 673
Union No. 323, A. F. of L., as the exclusive representative of all the
employees in the aforesaid appropriate unit;
(b) Post at the plant of Respondent Corporation at Cookeville,
Tennessee , copies of the notice attached hereto, marked "Appendix
A." 17 Copies of said notice, to be furnished by the Regional Director
for the Tenth Region, after being signed by the Respondents' repre-
sentative, shall be posted by the Respondents immediately upon receipt
thereof, and maintained by them for at least sixty (60) consecutive
days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondents to insure that said notices are not altered,
defaced, or covered by any other material;
(c) Notify the Regional Director for the Tenth Region in writing
within ten (10) days from the date of the receipt of this Order, and
again within ten (10) days from the future date, if any, on which the
Respondents are officially notified that United Garment Workers of
America, Local Union No. 323, A. F. of L., has met the conditions set
forth above, what steps the Respondents have taken to comply
herewith.
IT Is FURTHER ORDERED that in all other respects the complaint be,
and it hereby is, dismissed, the dismissal as to Ray Vaughn being with-
out prejudice.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order cf the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
AVE WILL BARGAIN collectively upon request with UNITED GAR-
MENT WORKERS OF AMERICA, LOCAL UNION No. 323, A. F. OF L., as
the exclusive representative of all employees in the bargaining
unit described below with respect to rates of pay, hours of em-
ployment, or other conditions of employment, and, if an under-
standing is reached, embody such understanding in a signed agree-
ment, provided said labor organization, within thirty (30) days
from the date of the aforesaid order of the Board, complies with
the filing requirements of Section 9 of the National Labor Rela-
tions Act, as amended. The bargaining unit is:
11 In the event that this Order is enforced by decree of a Circuit Court of Appeals, there
shall be inserted in the notice before the words "A DECISION AND ORDER," the words :
"A DECREE OF THE UNITED STATES CIRCUIT COURT OF APPEALS ENFORCING "
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All employees of the Respondent, Cookeville Shirt.Company,
employed in the Cookeville plant, excluding guards ,. watchmen,
clerical and maintenance employees , and all supervisors as defined
in the Act.
COOKEVILLE SHIRT COMPANY
AND P. M. FRENCH
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
Mr. Will/iam M. Pate, for the Board.
11118s Mary L. Johnson , of Cookeville , Tenn., for the Union.
Messrs. A. H. Roberts , Jr., and Carmack Cochran, of Nashville , Tenn., for the
Respondents.
STATEMENT OF THE CASE
Upon a second amended charge duly filed March 24, 1947 , and upon a supple-
mental charge duly filed March 31, 1947, against Cookeville Shirt Company
and P. M. French , herein called the Respondents , by United Garment Workers
of America , Local Union No. 323, A. F. of L., herein called the Union, the
National Labor Relations Board, herein called the Board, by its Regional
Director for the Tenth Region ( Atlanta , Georgia ), issued its complaint dated
March 26, 1947 , and amendment to complaint dated March 31, 1947 , alleging
that the Respondents had engaged in and were engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (1), (3) and ( 5) and Section
2 (6) and ( 7) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. Copies of the complaint , amendment to the complaint and notice of
hearing thereon were duly served upon the Respondents and the Union.
With respect to the unfair labor practices the complaint and amendment to
the complaint alleged in substance that the Respondents : ( 1) by various enumer-
ated acts had interfered with, restrained and coerced its employees in violation
of Section 8 (1) of the Act ; ( 2) had discharged and thereafter failed or refused
to reinstate Ray Vaughn on February 26, 1946 ,' Herbert Lawson on April 17, 1946,
Jimmy Ragland on May 3, 1946 , Nettie Johnson on May 29, 1946 , Frances Neal
on June 5, 1946 , and Dimple Warren on October 23, 1946, because said employees
joined or assisted the Union or engaged in concerted activities with the other
employees for the purposes of collective bargaining or other mutual aid or
protection ; and (3) on or about September 28, 1946 , and at all times thereafter,
refused to bargain collectively with the Union as the exclusive representative
of all the employees of the Respondents employed at its Cookeville plant, exclud-
ing guards , watchmen , clerical , maintenance and all supervisory employees with
1 At the time of the hearing Ray Vaughn was in the United States Army in Japan At
the end of the hearing upon motion of the attorney for the Board and over the objection of
the Respondents, the undersigned dismissed -the complaint as to Ray Vaughn without
prejudice because no evidence had been presented bearing on his alleged discharge due to
his absence from the country.
COOKEVILLE SHIRT COMPANY - 675
the authority to hire, promote, discharge, discipline or otherwise effect changes
in the status of employees or effectively recommend such action, although said
Union had been certified on August 20, 1946, as such representative.
On April 7, 1947, Respondent Cookeville Shirt Company, and on April 17,
1947, Respondent French filed answers admitting certain allegations of the com-
plaint and amendment to complaint but denying the commission of any unfair
labor practices.
. Pursuant to notice, a hearing was held at Cookeville, Tennessee , from April 21
to April. 29, 1947, inclusive, before the undersigned, the Trial Examiner duly
designated by the Chief Trial Examiner . The Board and the Respondents were
represented by counsel and the Union by its representative. Full opportunity
to be heard, to examine and cross-examine witnesses and to introduce evidence
bearing upon the issues was afforded all parties. At the conclusion of the case
the Respondents moved to strike the testimony of Herbert Lawson and Jimmy
Ragland on the ground that their testimony covered confidential matter given
to them as supervisory employees of the Respondents. This motion was denied.
At the conclusion of the hearing all parties waived their right to oral argument.
Subsequently briefs on behalf of each Respondent have been received.
Upon the entire record and his observation of the witnesses, the undersigned
makes the following :
FINDINGS OF FAOr
I. THE BUSINESS OF THE RESPONDENTS
The Respondent, Cookeville Shirt Company, is a corporation organized and
existing under and by virtue of the laws of the State of Tennessee. Respondent
French is a vice-president of the Respondent Cookeville Shirt Company. At all
times material hereto Respondent Cookeville Shirt Company has maintained its
principal office and place of business at Cookeville, Tennessee, herein called the
Cookeville plant, and is now and has been continuously engaged at said plant
in the manufacture, sale and distribution of garments under contract for other
companies. In the course and conduct of its business operations during the
year ending March 15, 1947, Respondent Cookeville Shirt Company purchased
raw materials of value of approximately $100,000, of which approximately 50
percent was purchased at points outside the State of Tennessee, and shipped to
the Cookeville plant. During the same period Respondent Cookeville Shirt Com-
pany sold finished products at a value in excess of $100,000, of which approxi-
mately 75 percent was sold and shipped to customers outside the State of Ten-
nessee.
The Respondents' answers admit that they are engaged in interstate commerce
within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
United Garment Workers of America, Local Union No. 323, affiliated with the
American Federation of Labor, is a labor organization admitting to membership
employees of the Respondents.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint and coercion
Early in February 1946, the Union began a successful attempt to organize the
employees of the Respondents' Cookeville plant.
676 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
Thomas Padgett Glenn , who became superintendent of the Cookeville plant on
February 1, 1946, was promptly notified by the hotel clerk in-Cookeville that a
union organizer was in Cookeville attempting to organize the Respondents'
employees.
On February 25, 1946. Respondents received a letter from the Union in which
it'claimed to-represent a majority of the Respondents ' employees and requested
recognition as the bargaining agent for - said employees . This letter was dated
February 22. Glenn promptly forwarded it to P. M French, Respondent's vice-
president , who lived in Nashville , Tennessee , for answer . French was in charge
of labor relations at the Cookeville plant.
On April 11 Herbert Lawson, then foreman of the cutting room, told Glenn
privately that he understood that the Union was attempting to organize Re-
spondents' employees , but Glenn informed him that he already had heard that
and that that should not prevent them from getting their job done.
On April 12 Respondents received notification from the Board that an election
would be held on April 16 to determine the question of representation presented
by the Union
At 11: 20 a m. on April 12, 1946, P. M. French had the employees of the Re-
spondents called together on company time and property for the purpose of dis-
cussing the Respondents' views on the coming election with them. French's
speech on this occasion was openly anti-union starting with an appeal to the
employees that they were "too intelligent" to require the Union to bargain for
them and thus be "separated" from management. He stressed the figures of the
National Association of Manufacturers on the loss in man-da3,s of work and in,
money value through union strikes since.V-J Day, and then told a story indicat-,
ing that the Union representative had not "promised" to do anything for the
Respondents' employees, but would continue collecting dues from them just the
same. French stated that the employees could use this money to much better
purpose than paying the Union for doing nothing. French told the employees
the following: "The Union has more money than any corporation in the United
States. They have more cash, more assets than Du Pont, General Electric, or any,
other large corporation " Y He then called attention to the fact that one of his .
plants had closed down from November to March allegedly because the factory
from which it purchased piece goods was closed by a strike. He spoke about the,
minimum wage law which he claimed that he had fought for and ended that
part of the speech with "can I pay you folks 60 cents per hour and my competitor
pay 40 cents and stay in business?" This last statement contained-the punch line
of French's talk.
At 3: 00 p. in on Monday, April 15, the day before the election, French re-
turned, had the employees congregated on company time and property and made.
them another anti-union talk. After two short introductory paragraphs, French
stated : "Another thing that I have' heard is that some of you employees are
afraid to express your views, that you have been told that you would be charged
with unfair labor practices. That is silly. I am the one that will be charged
with unfair labor practices. It won't be you folks-it will be me. I know what
their procedure is and that is bluff and scare. They can't do that to me. We will'
be right here. I am not going to be guilty because I am not going to threaten
you." He then proceeded to scare the employees with tales of the "free and easy"
use of the employees' dues by unions, of luxurious living by the union organizers,
2 At the hearing French acknowledged that he had no authority for this statement and:
that it was probably incorrect.
i.
COO.KEVILLE SHIRT COMPANY 677
files of paying "tribute" to unions for the privilege of working, of huge initiation
fees, of the impossibility of employers giving jobs to friends and relations of the
employees after a union had secured a closed shop contract (which, incidentally,
French had stated he would never agree to during his previous speech.) French
related alleged incidents of perfidious treatment of employees by unions who
*ere charged huge initiation fees for the "privilege" of working and promptly-
expelled from the Union on various excuses after the fee had been paid. He
compared this type of treatment by "fair weather flowers" who come to town,,
"hoping to eat and live off you and your best friends" and the Cookeville Shirt
Company with,its "pay roll." He stressed • "They (the Union) want to come
where the cash pay roll is and get part of it and that is what they do." He then
said. "The South is on the verge of the greatest prosperity we have ever known.
i hope the tide will not turn and run the industries back north." After giving
the figures on the South's recent industrial increase, French continued : "Have
any manufacturing concerns come into a community because they were heavily
organized? The Unions will tell you that manufacturers come south to get rid,
of them. It (increasing industrial activity) makes living conditions better and.
we need that here, and I hope that none of us do anything to retract progress.
We have had an uphill pull to get where we are today." After stressing the
fact that the Respondents' pay roll had paid for many things for the employees,
and that the Respondents had "voluntarily" granted the last wage increase
without even a request from the employees. French told them how easily they
could see him and talk to hun "should any of you be discharged." He then,
added that while "lots of people think that the best way to get rid of hard headed,
or troublesome employees is to fire them," he, himself, liked to show such an;
employee how to "better himself" because "to fire them we might throw them
into the gutter." He then urged the employees to "vote the way you please and,
you will please me."
While French was careful not to threaten directly to discharge the employees
or to move his plant from Cookeville if the Union won the election, he created
that same effect through the patent nnplication of his remarks. The under-
signed finds that these speeches made dust preceding the holding of the Board:
election violated Section 8 (1) of the Act.
The election was held on August 16 and was won by the Union when 120=
employees voted in favor of being represented by the Union as against 57 who,
opposed such representation.
About 3. 30 the following afternoon, the Respondents notified the employees,
that the plant would be closed down on April 18, but would reopen on the 19th
From that time on until June 1 the employees lost a considerable amount of
time because the Respondents chose not to work. After 2 weeks of relatively
normal operation during the weeks beginning June 3 and June 10, the Respond-
ents started operating 3 days per week, for the stated reason that they were
unable to secure the necessary cloth. In general this 3-day week continued with,
two vacation periods interspersed until the week beginning September 9, 1916._
Thereafter the plant appears to have operated full time.
The Board contended that the Respondents locked out the employees in order
to interfere with, restrain and coerce them into refraining from membership in
the Union and from exercising their rights under the Act. On the other hand,
the Respondents contended that this shut-down was caused excltxsiyely because,
of an accumulation of unfinished work at the inspection tables and in the pressing,
department , which made further production work impossible.
809095-49-vol. 79-44
4678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On or about April 17 there is no question but that the Respondents had some
11,000 dozen shirts in the plant in the process of manufacture., _The cutting de-
partment was some 4,000 dozen ahead of the sewing department. Normally the
plant should have about 5,000 or 6,000 dozen shirts in process of manufacture. The
record is not clear as to just when this backlog began to accumulate, but it is
clear that it was in existence in large part quite some time prior to the date of the
election. When Glenn suggested closing the plant because of this backlog prior
to the election, French ordered him to continue operating because a shut-down
at such a time would be interpreted by the employees and others as an unfair
labor practice. The question of closing down appears to have arisen for the
first time after the announcement that an election would be held. • Consequently
the plant continued operating until April 18. This ability to continue operating
prior to the election proves that, if they had desired to do so, the Respondents
could have continued after the election.
On April 18 Mattie Jernigan, head forelady of the sewing departments, was in
the plant looking at the silent machines with Jimmy Ragland, then forelady of one
sewing department. She remarked to Ragland,'"It is awful, it's a shame all these
girls are off, they asked for it the day they voted in the election. It was coming
to them so they got it."'
The evidence from-all the witnesses, both those of the Board and of the Re-
spondents, makes it quite clear that the Respondents made efforts to dissipate
this bottleneck by assigning production workers to work as inspectors. Glenn
testified that this proved too expensive and was not continued after the election.
Even though the production department worked 4,967 hours out of 6,360 hours
during the week of April 29 to May 4, and the testimony is definite that the in-
spection backlog had not been broken by this time, it is undisputed that all the
inspectors were laid off for 11 hours during this week. The Respondents' will-
ingness to lay off for 11 hours the whole department, whose backlog just 9
working days previously had been so severe as allegedly to have caused the
shut-down of the whole plant, does not appear to conform to the seriousness of
the bottleneck as pictured by the Respondents. Nor was Superintendent Glenn
very convincing in his testimony as he never could be sure whether the bottleneck
was in the inspecting department or in the pressing department swinging the
blame back and forth between these two departments as the spirit moved him.
Based upon the tenor of French's remarks and that of Jernigan, and upon the
fact that it was obvious that the plant could have continued operations, as well
as the connection between the shut-down of the 18th and the election of the 16th
which was obvious to all the employees, the undersigned finds that the shut-
down of that day was for the purpose of interfering with, restraining and coerc-
ing the employees and to indicate to them the Respondents' displeasure at the
results of the election of April 16.
B. The dischai ges
. 1. Herbert Lawson
Lawson began his employment in the Cookeville plant in 1927 and had been
cutting room foreman for a period of 10 years prior to his discharge on April
19, 1946.
s In view of Jernigan 's other anti-union activities , the undersigned cannot credit her
denial of this testimony.
COOKEVILLE SHIRT COMPANY 679
In November 1944, Russell W. Lewis engineered the plant for the Respondents,
and in March 1945 returned to do a re-engineering job which took him until
June 1946.
Although Lewis testified that he had found the cutting room deficient in
"quality and quantity " of production at the time of his first visit there , nothing
was done about that matter until the Respondents changed the pattern of its
shirt, at which time it sent Thomas Padgett Glenn to Cookeville to assist in
making the necessary . new patterns and "see if [he] can help Mr. Lawson
out, * * to straighten his department out and make him operate efficiently."
Glenn was in Cookeville from September 15 until November 15, 1945, and accord-
ing to Lewis, spent "the greatest portion of [ Glenn ' s] time in the cutting room
making a new set of patterns for Lawson."
Glenn testified that when he left Cookeville in November , he believed that the
cutting room costs and efficiency would "continue to improve " because of his
efforts, but that he was sent back to Cookeville for 2 weeks in December because
,reports received a week or 10 days atter his departure showed the cutting room
costs to have increased promptly on his departure . At the hearing the Respond-
ents introduced an exhibit showing what it termed "cutting cost" which consisted
in reality of a tabulation of the number of dozen shirts cut per week and the
wages paid in the cutting room for that same week . This record did not purport
to give any figures for spoilage, wastage , or other incidental cutting room costs.
In fact, Glenn testified that prior to February 1, 1946, when he became plant
superintendent , no such cuffing costs were kept
The record introduced does show, however , that the average cost per dozen
shirts cut from May 5 to December 22, 1945, was 16.2 cents per dozen , that for
the 2 months period from September 15 to November 15 while Glenn was "improv-
ing the efficiency " of the cutting room the average cost per dozen rose to 20 cents.
It also refutes Glenn ' s testimony above for after his departure on November 15
the cost per dozen promptly decreased and the average for the remainder of the
year was 12 . 7 cents per dozen. Under Glenn 's supervision for 2 weeks in Decem-
ber, the average cost was 13 cents, while that for the following 2 weeks under
Lawson was 10 cents per dozen.
Glenn and Lewis testified at length regarding the alleged inefficiency of Lawson
in the cutting room The Respondent introduced this same type of exhibit for
the cutting room cost for 1946 to April 20 and for the corresponding period of
1947 to emphasize this alleged inefficiency . The average cost for the 1946 period
was 14 cents per dozen while that for 1947 was 10 .2 percent. However, the
difference in these cost figures is explicable by reason of the 5404 dozen more
shirts cut during the 1947 period. As Lewis so aptly phrased it at the hearing,
"The more the production , the lower your unit cost is. It is just common sense."
The higher production figures for 1947 are equally explicable because no such
bottleneck as existed in the inspection and pressing departments in 1946 existed
in 1947. Lewis testified that production in the sewing department in 1946
reached its ultimate low of 150 dozen shirts for reasons he had never been able
to ascertain but which he did not attribute to the cutting department.
Although Glenn and Lewis testified at length about the deficiencies in""quality
and quantity" of production in the cutting room under Lawson, neither even
implied that the bottlenecks of 1946 were caused by any of these alleged cutting
room deficiencies . The facts show that the cutting room under Lawson was
4000 dozen shirts ahead of the sewing department at the Cookeville plant by
April 17, 1946 , and at the same time the cutting department was able to maintain
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a 2 weeks supply of material at the Gainesboro, plant for which the depart-
ment also cut Therefoie in the, light of the, Respondents*- own cost figures,
and in the light of the actual facts, the criticism of Glenn and Lewis as to
the inefficiency of the cutting room under Lawson appeared to be without merit.
Respondents introduced two particular instances where Lawson's department
appears to have been in error In January- 1946 the sleeves of a lot of 40
dozen shirts were cut on the wrong side. This error was discovered late in
February at exactly the time the Respondents admitted knowledge of the Union
organizational drive. In a letter dated, February "22, 1946, to Fl ench, Glenn
described this error as one by Stone; a marker, which made 40 dozen shirts
into "seconds" i. e., an inferior grade of shirt. On February 25, French replied
by letter in which the implication was that the error made seconds out of either
300 or 500 dozen shirts instead of 40 dozen4 thereby causing Respondents the
loss of either 500 or 300 dozen shirts instead of 40 dozen. French's letter also
suggested replacement of Stone, the marker and a leader in the Union movement
who later became its first president The letter was only indirectly critical of
Lawson as foreman.
At French's suggestion, Glenn on February 26, the day after receipt of the
Union's letter claiming to represent a majority of the employees, called in
Lawson and Stone, read them French's letter and reprimanded them for this
error. There can be no dispute but that Stone did make an error and that
Lawson did not discover it However it was unanimously agreed at the hearing
that no supervisor could be expected to discover every error.
After reprimanding the employees, Glenn told Stone that he was going to
give him a "chance to quit" and added "you are not satisfied up there All
you are doing is talking and studying this union. Why don't you just go on
and quit if you are not satisfied?" After Stone stated that he was perfectly
satisfied with his job, Glenn excused him and allowed him to return to work.
Following Stone's departure, Lewis in whose office the conference took place
said to Lawson' "What is the matter up there, Herbert? . . Why is it those
boys up there are just all the time studying and talking uR this union? . . .
There is something wrong up there.... Are you afraid of them? . . . Why is
it then that you won't fire them?" After Lawson had explained that there
was nothing to justify their discharge, Lewis told him a story of a cutting
room foreman in a plant having a union shop contract who got rid of about
10 cutters out of 28 "and got himself a raise, and I think you will have to do
that"s
On -larch 5. 1946, Glenn wrote French informing him that Lawson and Stone
had been reprimanded on February 26 for the cutting error mentioned above.
He stated in this letter that lie was writing so that French would "understand"
if "I am forced to take a stand against any further mistakes: however I am
hoping this does not happen " On the following day,'March 6. for no reason
apparent in the letter or in the record in this case, Glenn again wrote French
4 So far as this record shows, Glenn never answered French's inquiry as to whether the
complete order consisted of 300 or 500 dozen shirts The testimony at the hearing indicated
that the largest possible number in the order was 110 dozen
These findings ale based on Lawson's testimony as to the conversation, despite the
denials by both Lewis and Glenn. which denials were based largely on the fact that they
claimed that they did not "know" of any Union activity as of that time, nor that Stone-
was the leader in the Union. They were contradicted on both these points by other wit-
nesses as well as their own admissions that they had heard "rumors " both of - Union activity-
and of Stone 's prominence in the Union . ""' '
COOKEVILLE SHIRT COMPANY 681
reviewing Glenn's own connection with the cutting room from September 1945
to date and stating that on some unspecified date "I found it necessary, however,
to warn [Lawson] that his work must improve if he is to continue here. I will
continue to help him until my hopes and patience are exhausted , which at the
present writing is very near that point ." There is no explanation of the sudden
near exhaustion of Glenn 's "hopes and patience" between March 5 and March
6, 1946.
On April 17 following the election , Glenn called the employees together and
told them that, now the election was over, the employees were all going to work
together and get the job done. Privately he instructed Lawson and other super-
visors that Union adherents were not to, be allowed to talk to non-union em-
ployees. To Lawson he added "If you don't stop it [talking about the Union],
,d- if I don't get somebody that can "
Later that same afternoon Glenn approached Lawson in the cutting room and
'said, "I want to know why you can't keep Odell Dixon' from standing around
here talking and arguing about the Union all the time . . . If you don't get
him to work and stop all this union talk around here, I am going to get somebody
that will do it." During his own testimony Glenn testified that he told Lawson
,to give Dixon "a correction that will stick." By that term Glenn acknowledged
he meant a "discharge" So far as the record shows, Dixon has not been
discharged.
On April 17, the second incident occurred when certain sleeves which had been
,cut, bundled, tied and marked were discovered, after their delivery to the sewing
room, to have different size markings on the top and another size marked on the
bottom of the bundle. The error was discovered by Head Forelady Mattie
Jernigan. Glenn testified that it would be impossible to determine which
individual employee was responsible for the mistake but that he "knew" Lawson
was responsible because Lawson was foreman of the cutting room. In order
-even to hold the cutting room foreman responsible, Glenn had further to state
-that he "knew" that the bundles had not been touched after delivery to the
sewing room department, otherwise the mistake could have been made in either
department The strange marking could have been either an error or inten-
tional. The employees most likely to have been responsible were Stone, the
marker, or Maurine Jernigan, the tie-up girl who often marked bundles and the
daughter of Head Forelady Mettie, Jernigan. Neither of these employees was
discharged.
Upon discovery of the error Glenn called Lawson and Stone to straighten
out the bundles After being reprimanded, Lawson and Stone completed their
,day's work
On April 18 the plant was closed down on the Respondents' orders as found
heretofore During that day Glenn telephoned to French about the episode and
French said lie would come to Cookeville the following clay
Sometime in the afternoon of April 19, Glenn had Stone brought into his office
-so that French could talk to hi ml about a report Maurine Jernigan had made that
.Stone had urged her to sign a Union card and had stated that lie thought any-
one who failed to sign was a "d- fool." When French asked him if he had
not been talking to the girls too much, Stone denied talking about the Union to
them during working hours . French replied , "I don't want you talking about
s Dixon had been an observer for the Union at the election on April, 16,
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this Union . . . you ought to get along if you don 't . . , if you do and I find it
out I will discharge you . . ." 7 1
Following this interview Glenn sent for Lawson and, when he appeared at the
office, French said, "Well, Herb, the jig is up " French suggested to Lawson
that he resign offering the inducement of a "recommendation " if he would. The
reason given by French for requesting Lawson's resignation was "You either
won't or can 't do what we want you to do up there ." When Lawson refused to-
resign, he was discharged and given a month's pay as separation pay.
Lawson has never been offered reinstatement subsequently.
Besides the Respondents ' disproved claim of inefficiency against Lawson, the
Respondents further contended that Lawson advised farmers on treatment for
their sick animals, thereby losing time from work. Between them Lewis and
Glenn recited two instances of phone calls made to Lawson dealing with such
matters, and two occasions when Lawson went outside the plant to his car talk-
ing to animal owners apparently . Such episodes appear to have been rare and
to have been countenanced under prior management . When Glenn spoke to
him about the matter, Lawson readily agreed to eliminate the practice entirely.
Glenn made no claim that this activity caused Lawson's discharge.
As the proof appears quite conclusive that Lawson was not an inefficient fore-
man as contended by Glenn and Lewis, and as Glenn acknowledged that Lawson
was only responsible for the two particular errors referred to in the testimony
because of his supervisory status, and as the last error appears to have happened
under peculiarly suspicious circumstances , the undersigned finds that Respondent
did not discharge Lawson for any of the above reasons, but that it did discharge
Lawson on April 19 because he refused to indulge in anti-union practices in his
department , though requested to do so by the Respondents , thereby refusing to
discourage Union membership among the employees under his supervision.
2. Jimmy Ragland
Jimmy Ragland, a woman, was employed by the Respondents in the fall of
1945 with the promise that she would become a forelady if she proved to be
a good operator. She commenced operating in January 1946 and in February
was promoted to forelady over an operating department of 38 to 40 girls.
She signed a Union card on March 25, 1946.
On one occasion during the Union campaign, Head Forelady Mattie Jernigan
asked Ragland what she thought of the Union. Ragland stated that she had
found unions to be beneficial during her employment in the north.
On other occasions Mattie Jernigan would ask Ragland if she knew whether
certain named employees were members of the Union.
About April 15, 1946, Lewis informed Ragland that he and French had just
returned from the Gainesboro plant where the women employees had gone "wild"
because some unknown person had been distributing Union cards and that they
were going to stop the work down there altogether. On April 19, on orders from
French, certain construction work at the Gainesboro plant was stopped for some
time, although thereafter the construction was increased in amount and completed.
On April 18, as heretofore found, when the operators were laid off, Mattie
Jernigan said to Ragland while both were gazing at the idle machines : "Law, isn't
this awful, all these machines sitting idle? But they asked for it the day they
voted in the election."
I French did not deny these statements and Glenn testified to only a slightly different
version.
COOKEVILLE SHIRT COMPANY 683'
On May 2, '1946, Ragland discovered a shirt which had been sent back for
repairs on which was pinned a note in Lewis' handwriting "Pearl Elam;' just
plain foolishness." Ragland laughed at the note and removed it from the shirt,
throwing it away in the ash can. Mattie Jernigan informed Glenn of the episode
whereupon Glenn began searching for the note which could not be located that
day but which was found on May 3. The note was dated 4/16/46, when Ragland
had seen it the first time.9
On May 3 about 30 minutes before quitting time Glenn discharged Ragland
because she had "not been doing her duty" and because Lewis said she had not
been "working in the company's interest" as proved by her statement to Operator
Eva Massie. The statement to Massie was one to the effect that it was a shame
for the girls to be laid off while there was so much work to do.
While the undersigned was not impressed with the proof of the Respondents'
claim that Ragland was an inefficient forelady, the undersigned can find nothing
in her discharge which suggests that the purpose thereof was to encourage or
discourage union membership and will, therefore, recommend that the complaint
as to Jimmy Ragland be dismissed.
3. Nettie Johnson and Frances Neal
About the middle of December 1945, at the suggestion of Operator Lorine John-
son, Respondents employed Mattie Jim Johnson as a second collar operator and
Frances Neal, her cousin, as a first collar operator. Neither girl had had any
previous experience.
Both Johnson and Neal heard of the Union about the middle of February and
both joined. Neither was very active in the Union, although commencing about
April 23, both wore their Union buttons at the plant as did a majority of the em-
ployees. On the first evening the buttons were distributed to the members, both
Johnson and Neal were wearing theirs at a cafe in Cookeville when Glenn walked
in and looked in their direction. Glenn testified that he did not notice them nor
their buttons.
Being new employees on jobs which generally require the usual newcomer about
61/2 months 10 before becoming proficient, both girls were criticized for some of
their work. On at least one occasion Glenn complimented Johnson on some good
work. Both testified that the criticisms from Glenn and Jernigan increased sub-
stantially after the election.
On one occasion Lewis requested Lorine Johnson, a strong non-union em-
ployee to speak to both Johnson and Neal ostensibly to prevail upon them to
improve their workmanship.
On May 29, either Glenn or Jernigan picked up either a whole bundle of
shirts or-else a few shirts from either a lot on which Johnson was then working,
or were given a bundle of shirts by an inspector who had rejected them for poor
workmanship The testimony of both Glenn and Jernigan was highly confused on
this point. Glenn first testified that he accompanied Johnson to his office at
the time he had picked up the shirts at her work bench but subsequently re-
called that he had had her called to his office some hours after the shirts had
gotten to his office. It was obvious from the testimony that the shirts were
8 An operator.
0 Lewis testified that he had written the note and pinned it to a shirt when he had dis-
covered Pearl Elam doing very bad work on the shirt. This was his method of attempting
to correct. Elam's error.
10 Six weeks to learn to sew plus 4-5 months to become proficient.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discovered in the morning, but that Johnson was not called to Glenn's office
until that afternoon, and after Neal had been criticized separately for her alleged
work on the same bundle.
Although Johnson had not noted the fact from the ticket attached to the
bundle of shirts, it appeared that both she and Neal had performed their sep-
arate operations on the same bundle of shirts during that day.
On the afternoon of May 29, Glenn first had Neal called to his office where he
showed Neal the bundle of shirts which had very poor quality workmanship on
the shirts. In fact, at the hearing, Neal made the accusation that the shirts had
been deliberately ripped for the occasion. Both Neal and Johnson testified that
each of them separately had asked to see the bundle ticket in order to ascertain
whether she had actually worked on that bundle and each testified that she was
,denied the right to see the ticket. Glenn and Jernigan, who were both present
at the interviews, both testified that the girls were shown the ticket. However
it appeared to the undersigned that Glenn's confusion as to how he had come into
possession of the shirts seemed to stem from an attempt to show that Johnson
knew that she had worked upon the shirts in question without the necessity for
recourse to the bundle ticket, thereby covering up the failure to allow an in-
spection of that bundle ticket by Johnson. The undersigned, therefore, credits
the testimony of Neal and Johnson, who appeared to be honest witnesses, that
they were refused permission to see the ticket.
After showing Neal the poor workmanship,. Glenn asked her to repair the shirts
and to do better work in the future This Neal promised to do and was thereupon
sent back to her work.
Then Glenn sent for Johnson whom he criticized for sewing with an un-
threaded bobbin, which Johnson indignantly denied having done. Glenn looked
at her Union button and said, "That looks like it calls for more money." Johnson
answered that she was not asking for more money and was satisfied with her
job Jernigan suggested that she understood that Johnson had another job in
prospect where she could make more money. Johnson refused their request that
she quit. Glenn asked her to repair the work and to do better in the future.
When Johnson stated that she was doing her best and would continue to do so,
Glenn testified that his "patience was exhausted" by her attitude and so he
discharged her.
On June 5, 1946, Johnson was called to the plant, at French's instance when
lie told her that the Respondents were sorry to lose a "good operator" like
herself and French offered her another job at the plant Johnson insisted upon
reinstatement to her old job with back pay for the 21/ days of work she had
missed after her discharge. When French refused reinstatement on these terms,
Johnson stated she was tired of wasting time and walked out. Subsequently she
has never been offered reinstatement
Glenn testified as to Neal that after May 29, bundles of Neal's work were
rejected by the inspectors on June 3, June 4 and June 5; that he again called
Neal into his office on June 5 when Neal stated that she was doing the best work
she could, an attitude' which Glenn thought was highly reminiscent of that of
Johnson and which "exhausted" his patience as to Neal, so on June 5 he discharged
Neal.
In both the Johnson and the Neal dischai ge cases. Glenn, Lewis and Jernigan
testified to numerous instances of bad work by each of them In his testimony
Glenn relied heavily on company records which he originally testified were
`original" records upon which original entries were entered daily, but after hav-
ing his recollection refreshed, acknowledged` that these records were actually
COOKEVILLE SHIRT COMPANY 685
records started subsequent to his becoming superintendent, and, in many instances,
subsequent to the, events recorded thereon, that the entries in these, records bad
been made from their former records which had either been destroyed or were
still in existence or had been entered from memory or later investigation. A
perusal of the records indicated examples of all of these. A check of these work
records as against the Respondents' pay-roll records for each of these girls reveals
the inaccuracy of the records For instance, in the case of Johnson, the work
record indicates that on April 22, 1946, the forelady requested Johnson to improve
her workmanship after finding "more had work," and that on April 10, 1946,
Glenn complimented her on some of her work. However, the Respondents' pay-roll
record indicates that Johnson worked on neither of the days in question. In
the case-of Neal, the work record indicates Neal was shown some bad work on
April .30, but the pay-roll record proves that Neal (lid not work that clay. In his
corrected testimony Glenn testified that the original entries had been made on
certain "cardex" cards, and that these cards contained the daily records. How-
ever-Glenn was unable to determine the dates for certain entries contained on
these cardex cards A perusal of the cards indicates that the cards were not
kept chronologically and, therefore, could not contain the daily records,, conse-
quently the undersigned is unable to place much reliance on these company
records, nor upon Glenn's testimony, which was, in large part, a recital from
these records.
However, all the company -records contradicted Glenn's testimony that Johnson
was not a good worker, showing as they do, a steady consistent improvement in
her production throughout her employment; until in the next to last week of
employment she•made her full quota of production, a feat which generally takes
a beginner 51/2 to 61/2 months to accomplish. It is therefore obvious that despite
Glenn's testimony, Johnson was not discharged for her poor "quantity and
quality" of production
The Respondents' pay-roll records do tend to confirm Glenn's complaint about
Neal's poor "quantity and quality" for her climb in production was neither so
steady nor so complete as Johnson's Neal never produced more than 79'percent
of her production quota prior to her discharge, yet on neither May 29 nor June 5
did Glenn, according to his own testimony, have any intention of terminating
Neal's employment until her "attitude" became so similar to that displayed by
Johnson on May 29.
On all the evidence presented, the undersigned believes, and therefore finds,
that the Respondents discharged Nettie Johnson and Frances Neal because each
,of them,:was,a, members of ,the Union and in order to discourage membership in
the Union.
4. Dimple Warren
Warren was employed by the Respondents as a button sewer from June 1945
to October 23, 1946.
She heard about the Union and signed a membership card shortly before April
16, 1946. She also distributed a few Union cards to other employees prior to the
election. Again in October 1946 she gave out two Union cards and collected them
after they had been executed '
On October 23, 1946, Glenn called Warren into his office where he told her he
was sorry but he was "going to have to let [her] go." He informed her that she
was capable of being a good operator but that he was discharging her because
she had done some bad work, had "hollered" too much, had left her machine
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
before quitting time and because he did not think she was "happy working for
The discharge of Warren appeared to have been a sudden decision by Glenn.
The cardex record on Warren, besides showing conclusively that it was not made
out daily and chronologically as claimed, indicated that Warren was corrected
for bad work and noise and warned on April 25, 1946, that she was being corrected
"for the last time." Thereafter the cardex is blank until October 2, 1946, when a
notation was made that Warren "claimed something wrong with eye" and asked
permission to see a doctor. As to this eye episode Glenn testified that the Re-
spondents did not want her to go to the doctor because "we needed her so bad
and all."
It is undisputed that Lewis had told the operators who were making production
that, when they had reached their production quota, they were free to do.what-
ever they chose, so long as they did not bother the other operators With the
exception of 8 individual weeks, Warren always made her quota and generally
was above quota. The record shows that Warren was over production for the
whole of March and April, so that it is hard to believe that she was corrected
so often for bad work during that period in the face of her denial thereof.
Warren acknowledged that she "hollered" in the plant when she needed bundles
to work upon. This was the customary method by which all button sewers
secured necessary work. She acknowledged-that..she- had,,been reprimanded two
or three times for hollering too loudly. It hardly seems logical that a 100 percent
operator who was needed so "badly" on October 2 would be discharged on October
23 for such a trivial offense. Glenn testified that he had heard "reports" that
Warren threatened "to bawl somebody out" twice after being reprimanded. The
Respondents appeared to be clutching at straws with this testimony, as no attempt
was made to prove the truth of these reports. None of the Respondents' claims as
to Warren appeared to ring true.
However in October 1946, Warren did distribute and collect two Union cards
after they had been executed. She was one of the two union members among
the 12 button sewers. Glenn admitted having heard "rumors" that she was a
member of the Union. In view of the Respondents' attitude towards the Union,
and the patent invalidity of Respondents' criticisms of her, her Union member-
ship and activities appear to have been the true explanation of her discharge on
October 23.
The undersigned, therefore, finds that the Respondents discharged Dimple
Warren on October 23, 1946, because of her Union membership and activity in
its behalf, and in order to discourage membership in the Union among its
employees.
C. The,r6fusal , to, bargain
1. The unit and the majority
On April 16, 1946, as found heretofore, the Board held an election among
all employees of the Respondents employed at the Cookeville plant, excluding
guards, watchmen, clerical, maintenance and supervisory employees with author-
ity to hire, promote, discharge, discipline, or otherwise effect changes in the
status of employees or effectively recommend such action, which the parties
agreed, and the undersigned finds, constituted a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the Act.
As 120 employees in said unit voted in favor of representation by the Union,
while only 57 voted against, the Board, on August 20, 1946, certified the Union
COOKEVILLE SHIRT COMPANY 687
as the exclusive representative of the employees in the aforesaid appropriate
unit. The undersigned finds that on August 20, 1946, and at all times thereafter,
the Union was, and now is, the exclusive representative of the Respondents' em-
ployees in the appropriate unit found above.
2. The refusal to bargain
By letter dated August 28, 1946, signed by Mary L. Johnson, International
Representative, United Garment Workers of America, the Union'r`equested that
the Respondents set a date on which to begin bargaining collectively in good
faith in regard to a contract.
At the first conference held September 28, 1946, the Union presented its pro-
posed agreement. The meeting was terminated by mutual consent soon there-
after so that the Respondents might have a chance to consider the proposal.
The next actual conference between the parties was held on October 25, 1946.
At this conference French refused to recognize the Union as the exclusive repre-
sentative of all the employees in the unit, but argued that the recognition should
be restricted so that the Union would represent only the Union members. This
the Union refused to do. French's point had been adversely decided under the
language of the Act in a number of cases including the McQuay-Norris decision
of the Supreme Court."
Although the proposed agreement-provided for a:wage structure -higher than
that' in • existence at the' plant, and although wages were to become a subject
for negotiations thereunder, on the morning of October 25, French appeared at
Cookeville before the assembled employees and informed them that the Respond-
ents had decided to grant them a wage increase. In the afternoon he engaged
in the negotiation meeting at Nashville without mentioning his activities of the
morning. Numerous cases have held that the granting of a wage increase by
unilateral action of the employer under circumstances similar to those here con-
stituted a refusal to bargain.
At the following meeting held on November 8, 1946, the parties continued the
same discussion on the recognition clause French added to his prior objections
the fact that he did not desire to have the same organization representing the
.Negro pressers as represented the white production employees. This contention
has also been ruled to be specious. French further refused to consider either
the proposed closed shop clause or a union shop clause, and insisted that the
Respondents would remain an "open shop."
Prior to the next meeting which was held on November 18, the Union filed
further charges of discriminatory discharges and of refusal to bargain with the
Board. French protested to the filing of these charges. There ensued dis-
cussions on other 'clauses in the proposed' union agreemeht, but the parties were
unable to agree upon any clauses therein. It was agreed however, at a con-
ference about this time, that any and all agreements made were tentative until
all clauses of the agreement had been decided upon. French offered to accept
the recognition clause so long as it was understood that any employee would
have the right to present a grievance individually to the Respondents. This the
Union refused.
Thereafter inconclusive meetings were held on November 29 and December
6 without any real agreements being reached although a few clauses were tenta-
tively accepted. At the December 6 meeting the Union presented its second
11 116 F. (2d) 748 (C. C A. 7) ; cert. denied, 313 U. S. 565.
688 DECISIONS- OF NATIONAL LABOR :- RELATIONS BOARD
-proposed contract but again discussions, upon this proposal were futile due to,
.company objections . The conciliator from the Department of Labor whose pres-
ence had been requested by the Union , proposed that Respondents put their so--
called "oral counter -proposals" into writing for the following meeting.
At the January 10 . 1947 , meeting. Respondents did submit a written counter-
proposal offering the same suggestions which . it had previously made orally.
This proposal contained the following provisions to which the Union raised
strenuous objections , but which French maintained was a condition precedent
to the Respondents ' agreeing to anything :
IV.
Work stoppage
1 There shall be no stoppage of work, sitdowns . slow -downs, or strikes,
nor shall the Union , or any of its members, engage in sympathetic strikes
during such period Upon a violation of'this provision of this contract the
Union thereby shall become liable for all damages occasioned the Com-
pany by such violation . If such violation of this contract shall result in at
closing of the Cookeville plant, it is agreed that the Company will be
damaged thereby in a sum not less than $2,500.00 per clay. which amount
may be fixed as liquidated damages by any court passing upon the Com-
pany's claim for damages As further evidence of its good faith, and its
intention to comply with the terms and provisions of this section of this
Agreement , the Union has entered into, and has delivered to the Company
simultaneously with the execution of this contiact a performance bond, in
the amount $______ the conditions of the bond being such that it shall idem-
nify the Company against any loss or damage by the breach of this section
of this contract upon the part of the Union , or its members.
The meeting held on January 20 was identical with those held prior thereto
except that both the Union and the Respondents agreed to submit further counter--
proposals at the next meeting.
At the next meeting held on February 4, 1947. the Respondents submitted a
"Memorandum of Proposed Modification in Company Proposal ." This modifica-
tion to the "work stoppage " clause was as follows :
IV.
Work Stoppage
1. The Union and its members agree that they will not engage in , any work
stoppage , sit-downs , slow-downs or strikes during the life of this agreement,
nor shall the Union or any of its members engage in sympathetic strikes
during such period. In the event the Union and its members violate this
provision of the Contract it is understood that such action by the Union, or
its members, is a breach of contract , and gives rise to a right of action on the
part of the Company against the Union and its members and the Company
may prosecute that right , of action in any, court having jurisdiction of such
matters, to have its damages assgssed and judgment iendeied if such
violation results in a complete closing of the Company's plant at Cookeville,
Tennessee , and the court trying the matter so finds, then it is agreed that
liquidated damages to the 'Compat y b3' reason - of such violation 'shall be
COOKEVILLE SHIRT COMPANY 689''
calculated upon the basis of $---------- per day damages . As evidence of
the good faith of the Union and of its members, and their intention to comply
with the terms and provisions of this section of this Agreement , the Union_
for itself and on behalf of such employees has entered into and has delivered
to the Company simultaneously with the execution of this contract a per-
formance bond in the amount of $__________, the conditions of the bond
being such that it shall indemnify the Company against loss or damage for
the breach of this section of the contract upon the part of the Union, or its
members, and shall make certain the payment of any amount up to the
maximum penalty of the bond which may be awarded as damages.
The only sum mentioned by French for the amount of the performance bond was
$50,000. French remained adamant that there would be no agreement with the
Union without such a bond. A number of cases including the Scrip to Manu-
facturing case's have held that the requirement of an indemnity bond by an
employer as a condition precedent to the execution of an agreement with a certi-
fied union is evidence of the lack of good faith on the part of the employer who
makes such a demand.
A recital of the events and the proposals presented at these numerous meetings
is conclusive that from the beginning the Respondents never intended that an
agreement should be reached with the Union . It violated too many tenets of
good faith for any other result to be possible The Respondents refused recog-
nition such as required by the law . Thereafter , by unilateial action and with
obvious intention of evading its statutory duty of bargaining with the certified
representative , the Respondents raised wages of its employees on the very morn-
ing of a day on which ' the wages were to become a topic of bargaining without`
so much as mentioning the fact to the Union . After finally being forced into
submitting a written' counterproposal , it then required the Union to furnish a
performance or indemnity bond as a condition precedent to the acceptance of any
agreement with the Union . A more obvious and deliberate effort to thwart
bargaining in good faith is difficult to imagine . The undersigned therefore, finds
on and after August 28 , 1946, and at all times thereafter , the Respondents refused
to bargain collectively with the certified representative of its employees in good
faith.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in.Section III, above, occurring
in connection with- the operations of the Respondents 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 of commerce
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices
which individually violate Section 8 (1) and ( 3) and (5) of the Act, the under-
signed will recommend that they cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
It will be recommended that the Respondents cease and desist from inter-
fering with , restraining , and coercing their employees in the exercise of their rights
guaranteed to them by Section 8 ( 1) of the Act.
12 36 N L R . B 411 at 421.
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'LIt will also be recommended that the respondents reinstate to-their former
or substantially equivalent positions and make Herbert Lawsoh, Nettie ' Johnson;
Frances Neal , and Dimple Warren, whole for any losses incurred by each of them
because of Respondents ' discrimination against them by payment to each of
a sum of money equal to that which each would normally have earned from the
date of the discriminatory discharge to the date of the Respondents ' offer of
reinstatement less his or her net earnings 'a during said period.
Having further found that the Respondents refused to bargain collectively
with the Union as the exclusive representative of its employees in the appro-
priate unit, the undersigned will recommend that the Respondents , upon request,
bargain collectively with the Union . The undersigned makes this recommenda-
tion because it is obvious that the Respondents have failed and refused to bargain
collectively in good faith with the Union certified as such by the Board over a
year prior to the effective date of the Taft-Hartley Bill and because the evidence
is clear that the Respondents ' actions have violated the terms of both the Wagner
Act and the Taft-Hartley Act in that the Respondents here have failed even to
"confer in good faith" with the Union.
At the hearing the attorney for the Board requested that the undersigned
recommend that Respondent P. M. French be ordered to cease and desist from
engaging in unfair labor practices not only at the Cookeville plant but also in
all other 18 or 20 plants and companies with which he is officially connected as
an officer . This request was based upon the fact that of recent date , French
has been named as the agent of a number of companies which have been found
to be in violation of the Act , in large part through the activities of said Respondent
French. A number of these factories have been held in Intermediate Reports
or in Board Decisions to have violated the Act. Several of these reports or
decisions mention French specifically and individually as being responsible for
said violations . The undersigned does not believe that he should make such a
blanket recommendation as to the Respondent French covering his activities
in all companies with which he is connected for the reason that his connection
with Respondent Cookeville Shirt Company is the only one involved in the present
proceeding . However, assuming that the Board should sustain the above-
mentioned Intermediate Reports against the Respondent French, it would appear
appropriate to the undersigned for the Board, after consideration of all these
cases, to issue such a blanket order against the Respondent French . It does not
seem appropriate that the undersigned should do so in this particular case and
hence he refuses the request of the Board's attorney.
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. United Garment Workers of America , Local Union No. 323, A. F. of L., is
a labor organization within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining , and coercing its employees in the exercise
of their rights guaranteed in Section 7 of the Act , the Respondents have engaged
in and are engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
3. By discharging and discriminating in regard to the hire and tenure of em-
ployment of Herbert Lawson , Nettie Johnson , Frances Neal , and Dimple Warren,
thereby discouraging membership in United Garment Workers of America, Local
n See Matter of Crossett Lumber Co ., 8 N. L. R B. 440, 497-498.
COOKEVILLE SHIRT COMPANY 691
Union No 323, A. F. of L, the Respondents have engaged in and are engaging in
unfair labor practices within the meaning of Section 8 (3) of the Act. % Ev
4. All employees of the Respondents employed at the Cookeville plant excluding
guards, watchmen, clericals, maintenance, and supervisoryi employees with the
authority to hire, promote, discharge, discipline, or otherwise effect changes-in
the status of employees or effectively recommend such action, constitute an appro-
priate unit for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
5. United Garment Workers of America, Local Union No. 323, A. F. of L., was
on August 20, 1946, and at all times thereafter has been, the exclusive repre-
sentative of all employees in the aforesaid appropriate unit for purposes of col-
lective bargaining within the meaning of Section 9 (a) of the Act
6. By refusing on September 28, 1946, and at all times thereafter, to bargain
collectively with United Garment Workers of America, Local Union No. 323,
A. F. of L., as the exclusive representative of all the Respondents' employees in
the aforesaid appropriate unit, the Respondents have engaged in and are engag-
ing in unfair labor practices within the meaning of Section 8 (5) of the Act.
7. By discharging Jimmy Ragland on May 3, 1946, the Respondents did not
commit any unfair labor practice.
8. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law and upon
the entire record in the case, the undersigned recommends that the Respondents,
Cookeville Shirt Company and P. M. French, Cookeville, Tennessee, their officers,
agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in United Garment Workers of America, Local
Union No. 323, A. F. of L, or any other labor organization of its employees by dis-
charging or refusing to reinstate any of their employees or by discriminating in
any other manner in regard to their hire or tenure of employment or any term
or condition of their employment;
(b) Refusing to bargain collectively with the United Garment Workers of
America, Local Union No. 323, A. F. of L., as the exclusive representative of
all employees of the Respondents at the Cookeville plant, excluding guards,
watchmen, clericals, maintenance and supervisory employees with the authority
to hire, promote, discharge, discipline, or otherwise effect changes in the status
of employees or effectively recommend such action ;
(c) In any other manner interfering with, restraining, or coercing their em-
ployees in the exercise of their rights to self-organization, to form, join, or assist
United Garment Workers of America, Local Union No. 323, A. F. of L., or any
other labor organization, to bargain collectively through representatives of their
own choosing or 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. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer Herbert Lawson, Nettie Johnson, Frances Neal, and Dimple Warren
immediate and full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority and other rights and privileges ;
(b) Make whole Herbert Lawson, Nettie Johnson, Frances Neal and Dimple
Warren for any loss of pay each may have suffered by reason of the Respondents'
,692 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
discrimination against him by payment to each of them of a sum of money equal
to the amount which he normally would have earned as wages from the date of
his discharge to the date of the Respondents ' offer of reinstatement, less his net
earnings during such period;
(c) Upon request, bargain collectively with United Garment Workers of
America, Local Union No. 323, A. F. of L., as the exclusive representative of all
its employees in the aforesaid appropriate unit;
(d) Post at its Cookeville plant at Cookeville, Tennessee, copies of a notice
attached to the Intermediate Report herein marked "Appendix A." Copies of
said notice, to be furnished by the Regional Director for the Tenth Region, after
being signed by the Respondents' representative, shall be posted immediately
by the Respondents upon receipt thereof and maintained by it for at least sixty
(60) consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken
by the Respondents to insure that said notices are not altered, defaced, or covered
by any other material ;
(e) Notif} the Regional Director for the Tenth Region in writing within ten
(10) days from the date of the receipt of this Intermediate Report what steps the
Respondent has taken to comply herewith.
It is further recommended that, unless on or before ten (10) days from the date
,of the receipt of this Intermediate Report, the Respondents notify said Regional,
Director in writing that they will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring the Respondents
to take the action afore^airl.
It is also recommended that the complaint as it relates to Jimmy Ragland be
dismissed.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, Series 5, effective August 22, 1947, any party may, within
twenty (20) days from the date of service of the order transferring the case to
the Board, pursuant to Section 203 45 of said Rules and Regulations, file with
the Board, Rochambeau Building, Washington 25, D. C., an original and six
,copies of a statement in writing setting forth such exceptions to the Inter-
mediate Report or to any other part of the record or proceeding (including rulings
upon all motions or objections) as he relies upon, together with the original and
six copies of a brief in support thereof ; and any party may, within the same
period, file an original and six copies of a brief in support of the Intermediate
Report. Immediately upon the filing of such statement of exceptions and/or
briefs, the party filing the same shall serve a copy thereof upon each of the other
,parties. Proof of service on the other parties of all papers filed with the Board
shall be promptly made as required by Section 203.55. As further provided in
said Section 203.46, should any party desire permission to argue orally before
the Board, request therefor must be made in writing to the Board within ten (10)
,days from the date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions , recommendations and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
,and Regulations, be adopted by the Board and become its findings, conclusions
and order, and all objections and exceptions thereto shall be deemed waived for
-all purposes.
THOMAS S WILSON,
Ti tat Examiner.
Dated September 25, 1947
COOKEVILLE SHIRT COMPANY
APPENDIX A
NOTICE TO ALL EMPLOYEES
693
Pursuant to the recommendations of a Trial Examiner 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 in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of,their right to self-organization, to form labor
organizations, to join or assist UNITED GARMENT WORKERS OF AMERICA,
LOCAL UNION No. 323, A F. OF L., 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.
WE WILL OFFER to the employees named below immediate and full rein-
statement to their former or substantially equivalent positions without
prejudice to any seniority or other rights and privileges previously enjoyed,
and make them whole for any loss of pay suffered as a result of the discrim-
ination.
WE WILL BARGAIN COLLECTIVELY upon request with the above-named union
as the exclusive representative of all employees in the bargaining unit de-
scribed herein with respect to rates of pay, hours of employment or other
conditions of employment, and if an understanding is reached, embody such
understandinc in a signed agreement. The bargaining unit is:
All _sm_ltloyee^ of. the 11'eki ildents employed at the Cookeville plant ex-
cluding guards, watchmen, clericals, maintenance and supervisory employees
with the authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees or effectively recommend such action.
Herbert Lawson
Nettie Johnson
Frances Neal
Dimple Warren
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 io
hire or tenure of employment or any term or condition of employment against any-
employee because of membership in or activity on behalf of any such labor
organization.
COOKEVILLE SHIRT COMPANY
AND P, M. FRENCH
Employer
Dated-------------------------------- By --------------------------------
(Representative) (Title)
NOTE : Any of the above-named employees presently serving in,the armed forces
of the United States will be offered full reinstatement upon application in
accordance with the Selective Service Act after discharge from the armed
forces.
This notice must remain posted for 60 days from the date hereof, and :oust not
be altered, defaced, or covered by any other material.
809095-49-vol 79-45