Eagle & Phenix Mills

National Labor Relations Board - Board Decisions

Oct 11, 1939

15 N.L.R.B. 1044 (N.L.R.B. 1939)

In the Matter of EAGLE PHENIx MILLS and TEXTILE WORKERS
OI:G_\N1/,LNG COMMITTEE
Case No. 6-1L'80.Decided October 11, 1939
Textile htenufnetin'in.u Lndas/rtl-IlI. i'inri^tntiun.: charges of, not sustained-
Testi.fying Under Act: discharges for: charges of, not sustained-Complafnt:
dismissed.
Mr. Warren Woods, M. Alexander F. Wilson, Jr., and .2Wr.' Johan
0. McRe-e, for the Board.
Swift, Pease, Davidson d &vinson., by Mr. J. Q. Davidson, and
Mr. W. E. Swinson., both of Columbus, Ga.., for the respondent.
Mr. Francis IJoague, of counsel to the Board.
DECISION
AND
ORDER
STAT'EAI ENT OF THE CASE
Charges. and amended.,cha:rges:ha^'ing-been duly -filed,by -the Textile
11'orkers Organizing Committee, herein called the Union, the National
Labor Relations Board, herein called the Board, by the Regional Di-
rector for the Tenth Region (Atlanta, Georgia.), issued its complaint
dated January 10, 1939, against Eagle & Phenix Mills, Columbus,
Georgia, herein called the respondent, alleging that the'reBpoiideilt
had eii^aged in. Auld was engaging' in unfair labor practicesaffecting
commerce within the meaning of Section 8 (1), (3), and (4) and
,Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat..
449, herein called the Act.
Copies of the complaint accompanied by notice of hearing were
duly served upon the respondent and the Union. With respect to
the unfair labor practices, the complaint alleged in substance that the
respondent, on June 24, 1938, discharged-AV. G.` Partanl;' arid' on ' Juuie-
.30, 1938, discharged Alice Gentry, and has at all times since refused
to reinstate the said employees for the reason that they had joined
and assisted a labor organization and for the reason that the. said
employees had testified under subpena. before a Trial Examiner ap-
-pointed by the Board, and that by these acts and by other acts the
respondent has interfered with, restrained, and coerced its employees
-in the exercise .of the rights guaranteed in Section 7 of the Act.
15 N. L. R. B.. No. 116.
1044
EAGLE & PHENIX MILLS 1045
On January 24,-1938; the respondent filed a special appearan& and
motion to dismiss the complaint for lack of jurisdiction. On the
same day the respondent filed a motion for further particulars, .a
motion to strike certain parts of the complaint, and an answer to
the complaint, in which it denied that it was engaged in interstate
commerce and that it had engaged in the unfair labor practices set
forth in the complaint. Pursuant to notice and amended notice duly.
served upon the, respondent and the Union, a hearing was held at
Columbus, Georgia, from February 27 to March 1, 1939, before
Peter F. Ward, the Trial Examiner duly designated by the Board.
At the outset of the hearing, the Trial Examiner denied the respond-
ent's motion to dismiss for lack of jurisdiction and the respondent's
motion for further particulars.
During the course of the hearing, the Trial Examiner made several
rulings on motions and on objections to the admission of evidence.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed. At the close of the case the Trial Examiner stated that all
parties might request oral argument before the Board in Washington,
D. C., within 10 days after the service of the Intermediate Report
upon them.
On May 5, 1939, the Trial Examiner filed his Intermediate Report
in which he found that the respondent had engaged in unfair labor
practices affecting commerce within the meaning of Section 8 (1),
(3), and (4) and Section 2 (6) and (7) of the Act. He accordingly
recommended that the respondent cease and desist from engaging in
such unfair labor practices and that the respondent offer reinstate-
ment to the two named employees with back pay from the date of
their discharge.
Thereafter, the respondent duly filed a statement of exceptions to
rulings upon motions, to rulings relating to_ the evidence, and to the
Intermediate 'Report of the Trial Examiner. The respondent also
filed a. brief in which it stated that it did not desire to appear before
the Board for oral argument. The Board has considered the excep-
tions to the Intermediate Report, and, except in so far' as they are
inconsistent with the findings, conclusions, and order set forth below,
sustains them.
Upon the entire record in the case, the Board makes the following
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, a Georgia corporation, operates a single manu-
facturing plant at Columbus, Georgia, devoted chiefly to the pro-
199549-39-vol. 15--67
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duction of cotton goods, including flannel, crochet thread, ball thread,
and rope. Cotton comprises approximately 99 per cent of the value
of the raw materials used. The respondent buys all of its cotton
in Columbus, Georgia, and hauls it to the mill by truck. The re-
spondent used 32,015 bales in the year ending August 31, 1937. The
cotton comes from various States depending on the season and the
crop. The respondent uses each month approximately 20 tons of
coal, shipped by rail from mines in Alabama. Dyestuffs are obtained
from the duPont Company and are shipped to the mill from a duPont
branch in Charlotte, North Carolina. The principal processes car-
ried on in the mill are picking, carding, spinning, weaving, - sanforiz=
ing, finishing, and dyeing. The respondent manufactured about
15,000,000 pounds of goods in the year ending August 31, 1937, and
during this period sold 13,800,000 pounds. Approximately 90 per cent,
of the products sold by the respondent are shipped outside of Georgia,
principally to customers in New York, Chicago, and Baltimore. The
respondent employs approximately 1,800 weekly paid employees.
H. THE ORGANIZATION INVOLVED
Textile Workers Organizing Committee is a labor organization
affiliated with the Congress of Industrial Organizations, having mem-
bers in the respondent's plant.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
After a hearing before a Trial Examiner duly designated by the
Board, the Board on January 18, 1938, issued a Decision and Direc-
tion of Election 1 to ascertain the representatives for collective bar-
gaining with the respondent. Pursuant thereto an election by secret
ballot was conducted on February 2, 1938, at Columbus, Georgia.
After the Union had filed charges alleging that the respondent had
engaged in unfair labor practices within the meaning of Section 8
(1) of the Act, the Board issued an order reopening the record in
the representation case and directed that that case be consolidated
with a proceeding in respect to the unfair labor practices. The Board
then issued a complaint and an amended complaint alleging that the
respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of Section 8 (1) and
Section 2 (6) and (7) of the Act. Pursuant to notice, a hearing
was begun on June 6, 1938, at Columbus, Georgia, before a Trial
' Matter of Eagle-Phenix Mills and Textile Workers Organizing Committee, 4 N. L. R. B.
966.
EAGLE & PHENIX MILLS 1047
Examiner duly designated by the Board. On motion of the respond-
ent the Trial Examiner adjourned the hearing until June 13, 1938,
when it resumed and continued until June 21. It was at this hear-
ing that the two employees named in the complaint in the instant
proceedings gave testimony . On February 16, 1939, the Board issued
its Decision , Order , and Second Direction of Election 2 in which it
found that the respondent had engaged in unfair labor practices
within the meaning of Section 8 ( 1) of the Act. The Board ordered
the respondent to cease and desist from such unfair labor practices
and directed the Regional Director for the Tenth Region ( Atlanta,
Georgia.) to conduct an election among the respondent's employees
within the appropriate unit at such future time as the Board might
determine.
B..The discharge of Alice Gentry
Gentry was first employed by the respondent as a spinner some-
time around 1921. She worked in that position until 1926 when she
quit voluntarily. In November 1936 she returned to her old job and
worked more or less continuously until her discharge on June 30,
1938. On June 11, 1938, Gentry was subpenaed and testified as a
witness on behalf of the Board on June 14, 1938. Her testimony con-
cerned coercive statements made by W. G. Huguley, the overseer of
the spinning department, shortly prior to an election conducted by
the Board. This testimony, similar in content to that of over 30 other
witnesses for the Board, was adverse to the respondent in connec-
tion with the issues then being litigated.
The reason. given by the respondent for her discharge on June 30,
1938, was that she was a poor spinner and was at that time turning
out increasingly bad work. On the morning of June 29, approxi-
mately -16 imperfect bobbins, known as "singles," were found on
the machines on which she had worked the previous evening. Some
of the singles were "inside" singles, which are a more troublesome
type because they are less noticeable and are therefore more likely
to get into the finished cloth. Cloth into which a single has been
woven cannot be.sold as first-grade material. Gentry complained
of poor eyesight. The existence of inside singles could be brought
about by an inability to distinguish between the shades of the
threads. The respondent proved that Gentry had previously been
reprimanded often for poor work and had on May 27, 1938, been
laid off for bad work. Upon finding this large number of singles
on June 29, Gentry's superior determined to discharge her. She
was away from work on June 29 because of illness. On June 30
2 Matter of Eagle & Phenix Hills and Textile Workers Organizing Committee, ii
N. L. R. B. 361.
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when she appeared for work she was shown some of the singles
which she had made and was thereupon discharged.
Several witnesses testified that although Gentry had not been one
of the best spinners, she was, nevertheless, an average spinner.
When, on cross-examination, these witnesses were asked to name a
spinner of less ability than Gentry, they were unable to do so.
In view of the fact that for several months Gentry had undoubt-
edly done poor work and had been reprimanded and disciplined
for it, and also in view of the fact that a large number of witnesses
testified similarly at the previous hearing and were not discharged,
we find that she was not discharged because she gave testimony at
the Board hearing.
No attempt was made to show that Gentry had engaged in union
activity other than that she had joined the Union and. had: given
testimony which supported the allegations of its previous charge.
No attempt-was made to connect the discharge with the fact that
Gentry had joined the Union. Therefore, the allegation of the com-
plaint that Gentry was discharged because she joined and assisted
lti labor organization will also be dismissed.
C. The discharge of W. G. Partain
Partain was first employed by the respondent on April 6, 1937.
For 31/2 months he performed various jobs, and thereafter held the
position of filling hauler. His duties were to supply the looms with
weaving material called "filling." On June 14, 1938, Partain gave
testimony at the Board hearing, similar to that given by Gentry.
On June 24, 1938, his superior told him that he would lay him off
hauling work but would put him to cleaning looms where there
was a temporary vacancy. On the following Monday, June 27,
the regular loom cleaner returned to work and Partain was laid off.
The respondent's reason for laying off a filling hauler at this time
was that the department was changing from heavier to finer fabric,
and there was less filling to be hauled. This was not -disputed at
the hearing. Before the lay-off the respondent employed, as filling
haulers in this department, J. B. Gresham and Gene Wyatt in
addition to Partain. Whereas Gresham and Wyatt, both of whom
had been hired prior to Partain, had families, Partain was single
and his mother and father worked at the respondent's mill. Gresham
had been a head filling hauler and a lease-out man, both jobs in-
volving more than ordinary skill and intelligence. The respondent
established at the hearing that the ' factors which it used in deter-
mining who of the employees be laid off were : (1) when the em-
ployee was first hired, (2) his ability, and (3) his dependents. In
EAGLE & PHENIX MILLS 1049
view `'of this we can find' nothing discriminatory in the lay-off of
Partain rather than Gresham and Wyatt.
An attempt was made to show that following Partain's lay-off
the respondent had hired certain new employees to do filling hauling
or other work that Partain could have performed. Without elabo-
rating the details, it is sufficient to say that in each case there was
some convincing reason; for hiring the man in preference to Partain.
We find that Partain was not laid off or refused reemployment
because he gave testimony at the Board hearing.
As in the case of Gentry no attempt was made to show that Par-
tain had assisted a labor organization other than by joining and by
giving testimony supporting its charge. ' Nothing in the record con-
nects Partaii's discharge with the fact of his having joined the
Union. Therefore, the allegation of the complaint that Partain was
discharged because he joined and assisted the Union will be
dismissed.
D. Alleged interference, restraint, and coercion
The only evidence in the record of separate interference, restraint,
and coercion was that given by Partain and Gentry at the previous
hearing and incorporated into the record in this hearing. The
purpose of its incorporation was to establish that these two em-
ployees had testified in a Board hearing adversely to the respondent.
Their testimony has been considered by us previously and an Order
issued to remedy the situation created by the unfair labor practices
to which they testified.-'
In this situation there is no need for us to consider it again.
Upon the basis of the foregoing findings of fact, and upon the
entire record in the' case, the Board makes the following :
CONCLUSIONS OF LAW
1. The operations and business of the respondent constitute a con-
tinuous flow of trade, traffic, and commerce among the several States,
within the meaning of Section 2 (6) of the Act.
2. Textile Workers Organizing Committee is a labor organization,
within the meaning of Section 2 (5) of the Act.
3. The respondent has not discriminated against Alice Gentry or
W. G. Partain because they gave testimony under the Act, within
the meaning of Section 8 (4) of the Act.
4. The respondent has not discriminated in regard to hire or tenure
of employment, or any term or condition of employment, of Alice
O Matter of Eagle & Phenix Mills and Textile Workers Organizing committee, 11
N. L. R. B. 361.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gentry or W. G. Partain, thereby encouraging or discouraging
membership in any labor organization, within the meaning of Section
8 (3) of the Act.
5. The respondent has not, by discharging Alice Gentry and W. G.
Partain, interfered with, restrained, or coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act, within the
meaning of Section 8 (1) of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
the complaint herein be, and it hereby is, dismissed.