Eastman Cotton Mills

National Labor Relations Board - Board Decisions

Jun 2, 1950

90 N.L.R.B. 31 (N.L.R.B. 1950)

In the Matter of EASTMAN COTTON MILLS and TEXTILE WORKERS UNION
OF AMERICA, CIO
Case No. 10-C-2215.-Decided June 2,1950
DECISION AND ORDER
On November 30, 1949, Trial Examiner Maurice M. Miller issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices in violation of the Act, and recommending that
it cease and desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto. The
Trial Examiner also found that the Respondent had not engaged in
certain other alleged unfair labor practices and recommended that
the complaint be dismissed with respect to such allegations. There-
after, the Respondent filed exceptions to the Intermediate Report and
a supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions, the brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following additions and
modifications?
1. We agree with the Trial Examiner that the Respondent dis-
criminatorily discharged Otis Batts. In reaching this conclusion,
the Trial Examiner relied, in part, on his preliminary finding that
shortly before the discharge, Batts had been ordered to resume "blow-
ing down" at a time when his supervisors would normally observe him
at work. We find it unnecessary to adopt this subsidiary finding, as
Pursuant to the provisions of Section 3 (b) of the Act , the National Labor Relations
Board has delegated its powers in connection with this proceeding to a three -member
panel [Chairman Herzog and Members Houston and Reynolds].
2 The Intermediate Report contains several minor inaccuracies , none of which affects
our ultimate findings. The Trial Examiner erroneously reported that Lee Pruit , a slubber
hand who complained of Lloyd ' s work, was an opponent of the Union. The record shows,
and we find , that Pruit was a union member. Further , we find , as the record indicates,
that after his return to work Lloyd usually worked from 40 to 48 hours weekly , rather
than 30 to 40 hours, as the Trial Examiner reported . The remaining insubstantial in-
accuracies in the Intermediate Report do not require further comment here.
90 NLRB No. 3.
31
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to which the evidence is in conflict. It is clear that the Respondent
was determined to interfere with and discourage its employees' union
activity; that Overseer Johnson had voiced the Respondent's inten-
tion to discharge Batts because of his union sympathies; and that
Batts had never been warned of carelessness or advised that the Re-
spondent took such a serious view of light bulb breakage that an
employee of 9 years' standing would be vulnerable to discharge for
the loss of two lights. Upon the foregoing facts, and upon the entire
record, we are satisfied that the Respondent discharged Batts because
of his union activity and thereby infringed upon its employees' right
to self-organization as guaranteed by the Act.
2. The Trial Examiner found, and we agree, that the Respondent
discharged Obie Doyle Coleman because of his activity on behalf of the
Union and not as a result of his quarrel with second hand Wright. As
indicated above, the Respondent was determined to interfere with and
prevent its employees' union activity. Coleman was an active union
member whose open interest and activity on behalf of the Union was
known to the Respondent. Indeed, the Respondent had expressly
voiced its intention to find an excuse to dismiss Coleman for such
activity. it is true that on the day of his discharge, Coleman quar-
reled with his supervisor. Upon consideration of the record as a
whole, however, we do not believe, as does our dissenting colleague,
that this argument was the real reason for the Respondent's decision
to fire Coleman. Rather, we are persuaded, as was the Trial Examiner
who saw the witnesses, that absent Coleman's known sympathies for
the Union the Respondent would not have viewed the quarrel with
second hand Wright as sufficient cause for discharge. We find, there-
fore, that by discharging Coleman, the Respondent violated Section
8 (a) (3) of the Act.
3. We also agree with the Trial Examiner's conclusion that H. S.
Batts was discharged because of his union activities. With respect
to this employee's discharge, the Respondent excepts to the Trial
Examiner's finding that no other employee had been discharged for
abusing the privilege of leaving his work briefly, as did H. S. Batts.
In its exceptions, the Respondent asserts that during 1946 four other
employees were discharged for like conduct. The record, however,
refers to only one of the employees so named, and he, Henry T. Moore,
was discharged "for being absent from work." As Moore was dis-
charged a f ter H. S. Batts, and as the record does not otherwise explain
the nature or duration of Moore's absence, we find no merit in this
exception.
As set forth in the Intermediate Report, Director Ragan, on one
occasion, questioned H. S. Batts, before his discharge, respecting the
'EASTMAN COTTON MILLS 33
latter's opinion of the Union and of its chances of winning the im-
minent election. He also asked H. S. Batts whether any "fault" of the
Respondent had provoked the organizational campaign and what
greviances were felt by the employees. After stating that he had con-
siderable influence with Smyly, the Respondent's president, Ragan
promised to make every possible effort to have their grievances
adjusted and to secure the physical improvement of the mill, and
asked Batts to pass this word along to other employees. The Trial
Examiner found, and we agree, that Ragan's questioning of H. S.
Batts constituted illegal interference, restraint, and coercion within
the meaning of Section 8 (a) (1) of the Act. We do not, however,,
agree with his conclusion that Ragan's promises did not involve
an unfair labor practice.3 Implicit in the promises to remedy con-
ditions was the suggestion that the employees abandon their efforts
at self-organization. It was an offer of a benefit to employees in re-
turn for their working at cross purposes with the Union's organiza-
tional campaign, and therefore not merely a privileged expression of
opinion.' Accordingly, we find, contrary to the Trial Examiner's
conclusion, that Ragan's promises to Batts constituted an independent
violation of Section 8 (a) (1) of the Act, for which the Respondent
was responsible.
4. When former second hand Lloyd was reemployed as a "spare
hand," President Smyly asked him whether he had joined the union
at the other mill where he had worked after his discharge by the
Respondent. The Trial Examiner made no finding with respect to
this incident. We believe that such conduct constituted unlawful
interrogation and we find that it was per se violative of the Act, as
it necessarily tended to interfere with the employees' rights guaran-
teed in Section 7 of the Act.5
5. The Trial Examiner found, and we agree, that the Respondent,
through members of its supervisory staff, committed illegal acts of
surveillance and interrogation of employees, as fully set forth in the
Intermediate Report. Consistent with its determination to defeat
the Union's organizational campaign, amply evidenced by the dis-
criminatory discharge of a number of employees, and to interfere with
the employees' right to self-organization, it carried on an organized
effort to ascertain the probable results of the pending election by learn-
ing the nature and extent of union sentiment among the employees.
3 Apparently , the Trial Examiner found that some of the aforesaid questioning by
Ragan was privileged. However, in our finding herein of a violation of Section 8 (a) (1),
we intend to cover all such questioning.
6 See Gulfport Transport Co., 84 NLRB 613; Beatrice Foods Co., 84 NLRB 493; Macon
Textiles, Inc., 80 NLRB 1525.
Standard - Coosa-Thatcher Company, 85 NLRB 1358 ; Gulfport Transport Co., supra.
903847-51-4
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As part of this planned illegal activity, the Respondent made it a
practice-"quite often"-to hold meetings of its supervisors for the
purpose of pooling the information these illegally obtained. Using
the payroll as a guide, the supervisors at these conferences thoroughly
discussed each employee and noted their respective conclusions relative
to the probable vote to be cast by every employee.
We are satisfied, upon the entire record in this case, and particu-
larly because of the specific acts of unlawful surveillance shown to
have been committed by the Respondent's supervisors, that through-
out these meetings the Respondent expected, and in fact encouraged
and authorized, its supervisory staff to continue illegally to spy upon
and interrogate employees to secure the desired information. We
view such instructions and directions to the supervisory group as
conduct in furtherance of the Respondent's calculated strategy to
infringe upon the guaranteed rights of the employees freely to select
or reject any bargaining representative. Just as illegal interference
with such employee rights resulted from the surveillance actually
proved, the further information which the Respondent sought to
obtain through its supervisors could have been used for no other
purpose but such interference. Whether or not the further attempted
restraint and coercion was achieved is entirely immaterial; the pro-
scriptions of Section 8 (a) (1) run no less against attempts to restrain
and, coerce employees than they do to successful interference 6
Accordingly, we find that by its entire course of conduct, including
both the instructions to the supervisory staff to spy upon the rank
and file employees and the specific acts of surveillance and interroga-
tion found in the Intermediate Report, the Respondent restrained
and coerced its employees in the exercise of the right to self-organiza-
tion guaranteed in Section 7 of the Act, and thereby violated Section
8 (a) (1).7 We view the instructions to supervisors at the various
staff meetings as part of the Respondent's illegal conduct, but we
do not find, as the Trial Examiner apparently did, that mere dis-
cussion among management personnel respecting union activities
among the employees, is per se violative of any of the prohibitions of
the Act."
6. The Trial Examiner found that the Respondent violated Section
8 (a) (1) of the Act by utilizing a betting pool in connection with
the outcome of the election as a "device" to determine the attitude
of its employees toward the Union, and by Assistant Superintendent.
O'Ware's invitation to and solicitation of employee Barnett to par-
ticipate therein. We disagree. The record contains no evidence
9 Dixie Shirt Co., Inc., 79 NLRB 127.
7 See, R. R. Donnelly and Sons Co ., 60 NLRB 635.
1 See, Empire Pencil Co., 86 NLRB 1187, and Atlantic Stages, 78 NLRB 553.
EASTMAN COTTON MILLS 35
pointing to the Respondent's responsibility for the betting pool.
Moreover, although the record is ambiguous in this respect, it is clear
that the bettors were not required to guess the number of prounion
votes. Rather, a more reasonable conclusion, from the record as a
whole, is that the employees guessed at the total number of votes to
be cast in the election. Under these circumstances, we find, contrary
to the Trial Examiner, that the Respondent did not violate Section
8 (a) (1) of the Act either by the "device" of the betting pool or
by O'Ware's conduct with respect thereto.
ORDER
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Eastman Cotton Mills,
Eastman, Georgia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Textile Workers Union of
America, CIO, or in any other labor organization of its employees,
by discharging or refusing to reinstate any of its employees, or by
discriminating in any other manner with regard to their hire or
tenure of employment or any other term or condition of employment ;
(b) Engaging in surveillance of its employees in their union activ-
ities; interrogating its employees concerning their union affiliation,
activities, and sympathies; promising benefits to its employees to
refrain from joining, or to abandon membership in, Textile Workers
Union of America, CIO, or any other labor organization; or requesting
or requiring its supervisors to participate in, or to cloak in secrecy,
any efforts to commit unfair labor practices;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist Textile Workers Union of
America, CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purposes of collective bargaining and other
mutual aid or protection, or to refrain from any or all of such activ-
ities, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to Earl E. Barnett, Henry Sylvester Batts, G. Ben Wil-
liamson, Otis C. Batts, Obie Doyle Coleman, and Hayward G. Lloyd
immediate and full reinstatement to their former or substantially
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equivalent positions, without prejudice to their seniority or other
rights and privileges;
(b) Make whole Earl E. Barnett, Henry Sylvester Batts, G. Ben
Williamson, Otis C. Batts, Obie Doyle Coleman, and Hayward G.
Lloyd for any loss of pay they may have suffered by reason of the
Respondent's discrimination against them, 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 Respondent's offer of reinstatement, less his net earnings during
such period;
(c) Post at its plant near Eastman, Georgia, copies of the notice
attached hereto marked Appendix A.9 Copies of said notice, to be
furnished by the Regional Director of the Tenth Region, shall, after
being duly signed by the Respondent, be posted by the Respondent
immediately upon receipt thereof, and maintained by it for 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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material;
(d) Notify the Regional Director for the Tenth Region, in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that in all other respects the complaint herein
be, and it hereby is, dismissed.
MEMBER REYNOLDS, dissenting in part:
I agree with the Decision and Order except in the following
respects:
I do not join in the factual inference of my colleagues that at
its staff meetings the Respondent encouraged and directed its super-
visors to engage in surveillance and interrogation. I am satisfied
to rest my unfair labor practice findings with respect to surveillance
and interrogation on the overt acts of supervisors, as fully described
in the Intermediate Report.
Nor do I agree with the majority that the record establishes that
the discharge of Otis C. Batts and Obie Doyle Coleman was discrimi-
7iatory. While it is true that the Respondent had previously ex-
pressed a desire to find an excuse to get rid of these employees because
of their union activity, this did not immunize these employees from
subsequent discharge for cause.10 In the case of Batts, the record
9In the event this Order is enforced by a decree of a United States 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 Court of Appeals enforcing."
. N See Lloyd A. Fry Roofing Company, 85 NLRB 1222, and cases cited therein.
EASTMAN COTTON MILLS 37
shows , as found by the Trial Examiner , that Batts cleaned the lights
in a "negligent" manner. As a result of such negligence , he broke
two lights , within a period of 5 minutes , in the presence of the super-
visors who ordered his discharge for that reason . The record fails to
establish any comparable breakage in the plant , although there is evi-
dence that some breakage had occurred in the past without comment
by the Respondent.
In the case of Coleman , the record shows that he, in an angry mood,
deliberately picked a quarrel with his supervisor with respect to his
work on the "tangled" frame. As a result, a 40 -minute argument
ensued between Coleman and his superiors , during which Coleman
-did not work . I am satisfied that this discharge grew out of this
argument, without regard to his union activity. Unlike the Trial
Examiner , I attach no significance to the fact that during the argu-
ment which Coleman provoked , the supervisor "made no effort to
mollify" him.
I do not join in that portion of the Order which requires the
Employer to cease "requesting or requiring its supervisors to partici-
pate in, or to cloak in secrecy, any efforts to commit unfair labor prac-
tices." This part of the Order is based on the legal theory of the
Inter-City Adivertising Co. case (89 NLRB 1103) that under the
present Act the discharge of a foreman for so refusing to cooperate
-pith an employer, constitutes a violation of Section 8 (a) (1) of the
Act. In that case, I dissented on the facts and consequently did not
reach the legal issue involved . However, I seriously question whether
under the present Act , which excludes supervisors from its protection,
such an unfair labor practice finding can now be made . The issue as
raised in this case involves, only a small portion of the entire Order
and only collaterally arises out of the unlawful discharge of Super-
visor Lloyd at a time when the Act ( before amended ) afforded him
protection . Consequently , I shall reserve decision on this point for a
more appropriate case, where the issue is directly joined and litigated
on a record which supports the factual premise of the alleged unfair
labor practice.
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our employees that :
WE WILL NOT discourage membership in TEXTILE WORKERS
UNION OF AMERICA, CIO , or in any other labor organization of our
employees , by discriminatorily discharging or refusing to rein-
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
state any of our employees, or by discriminating in any other
manner with regard to their hire or tenure of employment, or any
other term or condition of their employment.
WE WILL NOT engage in surveillance of our employees in their
union activities; interrogate our employees concerning their union
affiliation, activities or sympathies; promise benefits to employees
to refrain from joining, or to abandon membership in, TEXTILE
WORKERS UNION OF AMERICA, CIO, or in any other labor organi-
zation; or request or require our supervisors to participate in, or
to cloak in secrecy, any efforts to commit unfair labor practices.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights to self -organi-
zation, to form labor organizations, to join or assist TEXTILE
WORKERS UNION or AMERICA, CIO, or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection, or to
refrain from any or all of such activities, except to the extent that
such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as author-
ized in Section 8 (a) (3) of the Act.
WE WILL OFFER to the individuals named below immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to any seniority or other rights and
privileges, and make them whole for any loss of pay suffered as
a result of the discrimination :
Earl E. Barnett Otis C. Batts
Henry Sylvester Batts Obie Doyle Coleman
G. Ben Williamson Hayward G. Lloyd
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
EASTMAN COTTON MILLS,
Employer.
By ------------------------------
(Representative ) ( Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
EASTMAN COTTON MILLS
INTERMEDIATE REPORT AND RECOMMENDED ORDER
39
Messrs. James W. Mackle and Charles M. Paschal, Jr., for the General Counsel.
Messrs. Hal M. Smith, of Eastman , Ga., and Frank A. Constangy , by Legare
Davis, of Atlanta, Ga., for the Respondent.
Mr. Clyde Brock , of Macon Ga ., for the Union.
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by the Textile Workers Union
of America, affiliated with the Congress of Industrial Organizations, herein
designated as the Union, the General Counsel of the National Labor Relations
Board,' in the name of the Board, caused the Regional Director of its Tenth
Region, at Atlanta, Georgia, to issue a complaint dated July 29, 1948, against
the Eastman Cotton Mills of Eastman, Georgia, herein called the Respondent,
which alleged that the Respondent did engage and has continued to engage in
unfair labor practices affecting commerce within the meaning of Section 8 (1)
and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat.
449, herein called the original Act, and Section 8 (a) (1) and (3) and Section 2
(6) and (7) of the Act as amended and reenacted in the Labor Management
Relations Act of 1947, 61 Stat. 136, designated herein as the Act.2 Copies of
the complaint, the amended charge, and a notice of hearing were duly served
upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint, as amended , alleged
in substance: (1) That the Respondent discharged the employees named below
discriminatorily, on or about the dates noted opposite their names:
Earl E. Barnett, October 31, 1946.
Henry Sylvester Batts, October 31, 1946.
G. Ben Williamson, November 16, 1946.
Otis C. Batts, November 19, 1946.
Obie Dyle Coleman, November 22, 1946.
Hayward G. Lloyd, December 2, 1946.
Robert Emory Dixon, December 31, 1946.
(2) that these employees were discharged and refused reinstatement thereafter
because of their membership in the Union and their activity on its behalf, and
because they had engaged in concerted activity for the purpose of collective bar-
gaining and other mutual aid or protection; (3) that the Respondent, by certain
of its officers, agents, and supervisory personnel, questioned its employees about
their Union desires, sympathies, affiliation, membership, activity, and meetings ;
caused wages to be cut and work stretched out to discourage Union membership
and activity ; sought to persuade and induce employees to surrender their mem-
bership in the Union ; requested employees to vote against the Union in a pros-
pective election and to advise their fellow employees to do so ; threatened that the
plant would close if the Union activity of its employees was successful ; promised
employees certain benefits in order to discourage membership in the Union and
other activity for the purposes of collective bargaining and other mutual aid
1 The general Counsel and his representatives are designated herein as the General
Counsel, and the National Labor Relations Board as the Board.
2 The statute will be designated also as "the amended Act," "the amended statute," and
"the Act as amended" when essential in the interest of clarity.
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or protection ; made statements calculated to discourage Union membership and
activity among its employees and other activity for the purposes of collective
bargaining and other mutual aid or protection ; and engaged in surveillance of
Union meetings and activity ; (4) that the conduct of the Respondent with respect
to the discharge of the employees named above and its refusal to reinstate them
constituted discrimination in regard to the hire and tenure of their employment
to discourage membership in the Union, and that the Respondent thereby did
engage and has continued to engage in unfair labor practices within the mean-
ing of Section 8 (3) of the Act and Section 8 (a) (3) of the amended Act; and
(5) that the Respondent, by the course of conduct described above, did interfere
with, restrain, and coerce-and has continued to interfere with, restrain, and
coerce-employees in the exercise of rights guaranteed by the Act, and thereby
did engage and has continued to engage in unfair labor practices within the
meaning of Section 8 (1) of the original Act and Section 8 (a) (1) of the Act
as amended.
Thereafter, on the 31st of August, the Respondent filed a motion to strike cer-
tain allegations of the original complaint, which need not be detailed, on the
ground that these allegations related to conduct which, if true, could not be
considered a violation of the Act, and the further ground that one of the allega-
tions was scurrilous, prejudicial, and impertinent. The Respondent also re-
quested a bill of particulars ; it was contended that the complaint was not suffi-
ciently clear as to the individuals who were alleged to have committed various
acts of interference, restraint, or coercion, or as to the approximate time when
such acts were alleged to have been committed. Both motions were referred to
a Trial Examiner by the Regional Director. Wallace E. Royster, a Trial Ex-
aminer duly designated by the Chief Trial Examiner, thereafter denied the
motion to strike.
On September 1, 1948, pursuant to an extension previously granted, the Re-
spondent filed its answer-in which it admitted the jurisdictional allegations of
the complaint, pleaded a lack of knowledge as to the status of the Union, denied
the commission of any unfair labor practices, and affirmatively alleged instead
that each of the dischargees named in the complaint had been discharged for
cause within the meaning of the Act.
Pursuant to notice, a hearing was held at Eastman, Georgia, on various dates
between September 21 and 30, 1948, both dates inclusive, before the undersigned
Trial Examiner, duly designated by the Chief Trial Examiner. The General
Counsel and the Respondent were represented by counsel and the Union by a busi-
ness representative. At the outset of the hearing, after argument, the Trial
Examiner granted the Respondent's request for a bill of particulars. With re-
spect to those averments of the complaint which involve specific conduct charged
as interference, restraint, and coercion, the Respondent then renewed its earlier
motion to strike; the motion was, however, again denied.
The General Counsel, at this point in the case, presented a motion for a bill of
particulars with respect to the Respondent's answer ; the motion, in part, was
granted. As in the case of the earlier motion for a bill of particulars addressed
to the allegations of the complaint, the response required of counsel by the order
of the undersigned was entered orally upon the record. -
All of the parties represented in the case participated and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence pertinent to the issues. Several motions to amend the complaint,
intended to correct certain names used in it and to add specific allegations of
interference, restraint, and coercion were offered thereafter on behalf of the
EASTMAN COTTON MILLS 41
General Counsel . The motions were granted . Other motions , presented on
behalf of the Respondent , to dismiss the averments of the complaint with respect
to the discharge of Earl E. Barnett and Hayward G. Lloyd were denied At the
conclusion of the case for the General Counsel, his representative moved to
amend the complaint by deleting the names of three dischargees as to whom no
evidence had been offered .3 The motion was granted without objection. Cer-
tain allegations of interference , restraint , and coercion , as to which no evidence
had been offered, were also deleted at the request of the General Counsel's rep-
resentative.4 At the conclusion of the case for the General Counsel the represent-
atives of the Respondent presented a group of motions to dismiss the significant
parts of the complaint. The motions in which counsel referred to the seven re-
maining discharges were denied . Motions to dismiss all charges of interference,
restraint, and coercion as to President Charles Smyly, Director H. R. Ragan,
Superintendent T. A. McNeil, Assistant Superintendent Robert O'Ware, Overseer
George A. Johnson, and Second Hand Millard Wright were granted as to Smyly
and denied as to Ragan, McNeil, O'Ware, Johnson, and Wright. Motions to
dismiss the eight remaining specific counts of interference, restraint, and coer-
cion were granted as to three specific counts without objection by the General
Counsel' The Respondent's motions to dismiss the other allegations of inter-
ference, restraint, and coercion, five in number, were denied.
At the close of the testimony the General Counsel moved to conform the com-
plaint to the proof with respect to formal matters. The motion was granted.
The Respondent then presented a motion to renew all previous motions for the
dismissal of the complaint. Action upon this motion was reserved by the under-
signed ; the motion is disposed of by the findings of fact, conclusions of law, and
recommendations embodied in this Report. At the conclusion of the case, coun-
sel and the undersigned engaged in an informal discussion of the issues; which
forms a part of the record. A brief has been received from counsel for the
Respondent.
FINDINGS OF FACT
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following findings of fact.
1. THE BUSINESS OF THE RESPONDENT
The Eastman Cotton Mills , hereinafter designated as the Respondent, is a
corporation duly licensed under the laws of the State of Georgia. Its principal
office and place of business is located at Eastman, Georgia, where it has been and
is engaged in the manufacture , sale, and distribution of cotton sheetings and
related products. In the course of its business in 1947, a representative year,
8 These were Edward B . Moore, Ernest Atkinson, and Henry Moore.
4 These included an allegation that the Respondent , by Charles Smyly, its general man-
ager, had caused the publication of derisive , derogatory , and disparaging remarks about
the Union , its leaders and its affiliation ; that the Respondent had sought to instigate,
foment, and encourage racial strife , dissension , and distrust to prejudice its employees
against the Union; and that the Respondent had threatened to establish the practice of
racial equality and nonsegregation in its plant , and to employ colored supervisors , in order
to restrain and coerce employees.
'These included an allegation that the Respondent , by President Smyly, Overseer George
A. Johnson , and Second Hand Millard Wright, had caused wages to be cut and work to be
stretched out to discourage Union membership ; that the Respondent , by its officers and
agents, had asked employees to vote against the Union in an election and to advise others
to do so ; and that the Respondent , by its officers and agents , had made statements dis-
couraging concerted activity and membership in the Union.
42 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
the Respondent received at its plant in Eastman raw materials, consisting main-
ly of cotton, valued in excess of $1,000,000, of which approximately 50 percent
was purchased outside the State of Georgia and shipped in interstate commerce
to the Respondent's place of business. In the same period, also, the Respondent
manufactured and sold finished products consisting mainly of cotton sheetings
valued in excess of $2,000,000, of which approximately 90.percent was sold and
shipped to customers outside the State of Georgia.
The Respondent admits that it is engaged in commerce within the meaning of
the Act, as amended. Upon the record, the undersigned finds that it was engaged
in commerce, within the meaning of the original Act, at the time of the events
with which this Report is concerned.
II. THE LABOR ORGANIZATION INVOLVED
The Textile Workers Union of America, affiliated with the Congress of Indus-
trial Organizations, is a labor organization within the meaning of Section 2 (5) of
the original Act and the Act as amended, which admits to membership employees
of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The general course of events
1. The organization of the Respondent
Charles Smyly, previously mentioned, has been the Respondent's president and
treasurer since 1935. He participates actively in the management of the busi-
ness, and has-upon occasion-exercised his right to hire and discharge em-
ployees. In the main, however, responsibility for the administration of the
Respondent's labor "policy" is vested in Superintendent T. A. McNeil, under
Smyly's direct supervision. At present, the actual functions of employment and
discharge are vested in the Respondent's departmental overseers, under the
general authority of the superintendent. The departmental overseers include
A. L. King in the Respondent's Weave Room,° Dorris Floyd in the Cloth Room,
and George A. Johnson in the Spinning Department. Johnson-now, as noted,
an overseer-was not in the employ of the Respondent at the time of the first
representation election to be noted in this report. He was employed, however,
shortly thereafter. In the capacity of an overseer, he presently supervises 50
or 60 employees and has the authority to hire and to discharge them. Millard
Wright, a second hand, is designated in the record as Johnson's assistant ; he has
the right to hire and fire employees on his shift, the second. In Johnson's ab-
sence, he is completely in charge of the department.
At the outset of the Union campaign, to be noted, Robert O'Ware-previously
an overseer in the Carding Department-was the Assistant Superintendent. His
immediate responsibilities included the supervision of the Carding Department,
the electrical shop, and the Respondent's maintenance and construction work ;
he had the authority, as an assistant of Superintendent McNeil, to hire and dis-
charge employees. O'Ware is no longer in the Respondent's employ; the record
establishes that he was dismissed for reasons to be noted elsewhere in this
report.
6 King was not an overseer at the time of the events with which this case is concerned.
Before his employment in that capacity the department was supervised by two second hands,
Curtis Coleman and Justin Bracewell ; each was assigned to one shift. They had the au-
thority to hire and discharge employees.
EASTMAN COTTON MILLSi 43
During O'Ware's service as an assistant superintendent , Haywood G. Lloyd'-
one of the persons allegedly subjected to discriminatory discharge by the com-
pany-was his second hand in the Carding Department ; as such he was in
-charge of the employees on one shift.8 According to Smyly, he had the authority
to hire and discharge them ; according to McNeil, he was only authorized to
recommend personnel action. In either event , his supervisory status is clear.
In 1946, at the time of the Union activity to be noted , the Respondent em-
ployed about 320 persons . Its affairs were managed by the corporate officers
and supervisory staff already named ; they were responsible to a board of 7
directors. One of these, H. R. Ragan-named in the complaint-was a substan-
tial stockholder in the corporation , a local banker , and a partner of President
:Smyly in several business enterprises.
2. The community
The city of Eastman has a population of about 3 ,200 persons ; and the Respond-
ent operates the largest manufacturing industry in the vicinity . In addition to
its mill, the Respondent owns and maintains a "mill village " of 70 houses, ap-
proximately , immediately adjacent to the plant . 9 . These are made available,
by the Respondent , to families with one member , or more, in its employ . Superin-
tendent McNeil was, and is, responsible for their maintenance and administra-
tion ; at the time of the events with which this case is concerned, however, that
responsibility had been delegated to his assistant superintendent.
3. The beginning of the union campaign
The efforts of the Union to organize the employees of the Respondent began
in August of 1946; although the exact date of the campaign's inception, the
identity of the union organizer, and the nature of his initial action are not estab-
lished, an inference is warranted that the presence of the organizer was known,
generally , within a short time after the campaign began-and the undersigned
so finds.
The first open meeting of the union was held, in fact, on September 1, 1946, a
Sunday, at Jones' Garage, outside of Eastman, on the Soperton Highway. Twenty
or thirty employees of the Respondent were present . Shortly before the meeting
was scheduled to begin, while most of those present were standing or sitting
in the open , between the front of the garage and the highway , several of them
observed Assistant Superintendent O'Ware and Second Hand Lloyd ride by, in a
car driven by O'Ware. The record establishes that it was being driven slowly
enough to enable several of the persons in front of the garage to recognize Lloyd
and O'Ware; Lloyd, in turn, testified, and the undersigned finds, that he was
able to observe and identify a number of the persons visible from the highway.
After passing the garage, the car was observed to accelerate ; it proceeded, with-
out interruption, in the direction of Soperton. Ten minutes later, approxi-
mately, Lloyd and O'Ware passed the garage again, returning to Eastman.
The meeting, however, was called to order without incident. A number of
those present signed individual applications for union membership.
7 Also identified as H. G. Loyd.
8 Shortly after the employment of Johnson , responsibility for the Carding Department
was transferred to him. He thus became Lloyd ' s supervisor , O'Ware retained his title,
but his authority was limited to the maintenance and construction work.
8 The plant , and all but five of the houses in the "village " are outside of the Eastman
city limits.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The first election
On September 9, 1946, a petition in Case No. 10-R-2186 was docketed in the
Board's Regional Office ; it alleged that a question of representation had arisen
among the employees of the Respondent in a unit of production and maintenance
workers, with the usual exclusions.
A spirited argument as to the merits of unionization at the Respondent's plant
started almost at once. There is evidence, which the undersigned credits, that
officials of the Respondent advised its directors and supervisory staff to avoid
an appearance of partisanship, and to maintain neutrality of the Union cam-
paign. The employees, however, were not advised of these instructions; and it
is clear that the officials of the Respondent made no secret of their own views
with respect to the value of organization. In a series of bulletins, posted at the
mill, the employees were advised that the decision was theirs to make, but that,
in the opinion of the Respondent, "both you and we would be better off if you
were not represented by a C. I. O. union" ; that "our relationships in this plant
and in dealings with you on an individual basis have been peaceable and friendly
and we believe they have been satisfactory" ; and that "it will be better for
everyone concerned to keep our relations on the same personal basis." Interest
in the organizational campaign, therefore, was high ; after the Union and the
Respondent agreed to dispose of the representation question by a "pre-hearing"
election, discussion of the Union and its prospects in the election became common
in the plant, without apparent objection by the officials of the Respondent.
On one occasion, about a week before the election, according to the credited
testimony of Henry Sylvester Batts, Superintendent McNeil approached him, in
the mill, and asked him what he thought of the Union's chances in the election.
Batts replied that he thought the Union would "go over" if those employed on
other shifts felt as the employees did on his shift 10 Within a day or two, accord-
ing to Batts, McNeil returned ; in the course of a general discussion about the
Union, during which Batts voluntarily informed McNeil that he was a member,
the latter said that "he had worked union labor and non-union labor, and he
found that the company could get along with non-union labor better than they
could [with] the union labor." Batts disagreed"
Assistant Superintendent O'Ware also took an active, but somewhat erratic,
interest in the Union's campaign. His action in passing the scene of the Union
meeting, in the company of Lloyd, has been noted. Thereafter, according to the
undenied and credited testimony of Lloyd, O'Ware advised him privately, on one
occasion, that he approved of the Union ; the record establishes, however, that he
also told Lloyd, privately, to say nothing about the Union, himself, to the em-
ployees, and to observe, in full, the official neutrality policy of the Respondent.
In spite of this advice, Lloyd testified-and the undersigned finds-that O'Ware
subsequently called upon him to participate in the clandestine distribution of an
antiunion pamphlet at the bill. Later, according to Lloyd's credible testimony,
O'Ware informed him that the Respondent intended to "fight" the Union ; in
spite of this he went on, the undersigned finds, to ask Lloyd's own opinion of the
10 McNeil denied , inter alia, that he had ever asked any employee if he or she had joined
the Union ; the undersigned credits his denial . He also denied illegal conduct , interroga-
tion or statements generally and testified , in the affirmative , that all he did was "listen"
when the employees talked to him about the Union ; the undersigned finds this aspect of
his testimony-under the circumstances-incredible.
11 The employee testified that McNeil ended the conversation with the statement that,
"Well, if the Union goes over, Mr. Smyly will shut the mill down." For reasons to be noted
elsewhere in this report the undersigned does not credit the testimony of Batts, with respect
to the statement quoted.
EASTMAN COTTON MILLS 45
Union, and volunteered the statement , again , in the course of the conversation,
that he personally favored it. The record does not indicate that he gave a reason
for his favorable comment.
The obvious interest of O'Ware in the Union's campaign is revealed, also,
in the credible testimony of Carpenter Earl Barnett-which is also undenied-
in this connection. About 1 month before the first election to be discussed in
this report, according to Barnett, O'Ware asked him if he had seen any Union
leaflets; when Barnett replied with a negative, O'Ware called upon him to join
a search for some. The results of the search are not established.32 On another
occasion, O'Ware questioned the carpenter at length with respect to his opinion
of the Union, his opinion of its chances in the election, and whether or not he
expected to vote for it 13 Shortly before the election, he even invited Barnett
to participate in a betting pool with respect to its outcome; according to Barnett,
bets were being solicited during working hours, and a record of them was being
maintained by a company timekeeper. When the carpenters accepted O'Ware's
invitation to participate, the latter offered to "buy" his bet, and remarked that
he had "bought" several others.
H. R, Ragan, previously identified in this report as a local banker and busi-
ness associate of President Smyly who held a membership on the Respondent's
board of directors, also displayed an active interest in the outcome of the election.
On a date which does not appear in the record he accosted Henry Sylvester
Batts, on an errand in the village ; he invited the employee to sit in his car;
questioned him with respect to his opinion of the Union and his opinion of its
chances in the election ; requested information as to whether any fault attributable
to the "company" had led the employees to entertain the idea of Union repre-
sentation; inquired as to the nature of any employee grievances; and stated,
by way of explanation, that he believed he had considerable influence with
President Smyly, and that be would make every possible effort to get the
grievances adjusted .14 The credible testimony of Batts establishes that Ragan
asked , specifically, about the condition of the rest rooms, and promised to "see"
that some new ones were built. The record does not establish that Batts made
any comment in the nature of a reply ; when the conversation ended, he got
out of the banker's car and returned to the mill." No one commented about his
absence.
19 The testimony of Barnett indicates only that he and O'Ware "saw" two leaflets.
13 The testimony of Shop Foreman Stephens establishes that O'Ware also asked his
opinion of the Union's chances ; Stephens was not a supervisory employee at the time.
la With respect to this conversation, also, Batts testified to a statement that President
Smyly would close the mill if the Union won; the undersigned, for reasons to be noted
elsewhere , does not believe that Ragan made the statement. .
15 Ragan denied the testimony of Batts. He testified that Batts and a companion
had come to see him-at the bank-and that Batts had offered to "stop" the Union
if arrangements were made to have Assistant Superintendent O'Ware discharged. The
banker went on to say that he had communicated this "offer" to President Smyly-
who rejected it--and that he had, thereafter, relayed Smyly's reaction to Batts ; he
testified that he had done so as an interested citizen "to help the community" and that
he did not do it for the company.
In rebuttal, Batts denied this version of their conversation. He recalled a visit to
the bank with Second Hand Boutwell-identified by Ragan as his companion-but in-
sisted that Boutwell and Ragan had engaged in a private conversation on that occa-
sion, while he, Batts, waited for Boutwell outside of the banker's private office. He
testified, also, that his conversation with Ragan, in Ragan's car, took place a week,
approximately, after the day on which he accompanied Boutwell to the bank. He was
not subjected to cross-examination.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The election was held on the 11th of October ; of 296 valid votes cast and
counted, 119 were cast in favor of representation by the Union while 177 votes
were cast against it; a majority of the employees in the unit alleged to be-
appropriate for the purposes of a collective bargain, therefore, voted against
representation by the Union.
5. The reaction at the plant
Assistant Superintendent O'Ware was the only official representative of the
Respondent to comment, publicly, on the Union's defeat. After the results
were announced, his first remark to Employee Barnett, according to the credited
testimony of the latter, was to the effect that the "company" had won the
election, and that he, O'Ware, had expected no other result. Later, within
a "few weeks" after the election, O'Ware made a number of statements, pur-
portedly indicative. of the Respondent's reaction to its "victory" in the election.
Specifically, he told Barnett, the undersigned finds,- that the Respondent had
embarked upon a "stretch-out" policy and that it intended to lay off a number
of employees, in violation of a promise supposedly made before the election ;
he ventured a prophecy that additional discharges would follow. Lloyd was
informed by O'Ware, also, on a date not apparent in the record, that an observed
reduction in the number of men assigned to a particular machine was evidence
of the "stretch-out" policy; the assistant superintendent then went on, the
record shows, to discuss other, alleged, plans of the Respondent to increase
the work load of the employees. On another occasion, said Lloyd, O'Ware
stated that he had checked the payrolls of the Respondent to identify the
Union supporters; coincidentally, the record establishes that O'Ware told
employee Williamson that the Respondent intended to undertake a program
of discriminatory discharges. One week after his first conversation with Barnett,
noted, O'Ware, according to credited testimony, repeated his reference to the
"stretch-out" policy of the Respondent and the discharges he anticipated. His
remarks on this occasion, according to Barnett, were made in the presence of
several employees.
6. The first discharges
a. Earl E. Barnett
Barnett, a carpenter, was first employed by the Respondent in January 1942,
under the supervision of Maintenance Supervisor Yawn ; he worked as a mainte-
nance carpenter for something more than a year. A temporary layoff of 3-4
months, at that time, ended when, together with several.others, he was recalled
by Yawn. Barnett testified without contradiction, and the undersigned finds, that
Yawn and other supervisors never complained about his work.
Starting at a rate of 40 cents per hour for a 40-hour week, Barnett was receiv-
ing 52 or 62 cents per hour when Assistant Superintendent O'Ware became his
supervisor." Thereafter, O'Ware designated him as the lead man of the mainte-
nance crew ; in this capacity, he was called upon to lay out the work for the
The undersigned found Batts to be a sincere, ingenuous witness. Upon the entire
record in this connection, and certain collateral testimony with respect to the ultimate
discharge of Boutwell, the undersigned credits the testimony of Batts and rejects that
of Ragan.
16 O'Ware, previously the overseer of the Card Room, became assistant superintendent in
charge of construction , maintenance , and repair late in 1945.
EASTMAN COTTON MILLS, 47
crew, to demonstrate how it ought to be done, and to undertake general carpentry
and maintenance tasks which others were unable to handle. At the hearing,
he estimated, credibly, that about 50 percent of his time was spent in the latter
Activity." He never attended meetings of supervisory personnel ; and the record
clearly establishes that he was not considered a supervisor. While in service
tinder the assistant superintendent, his pay was raised to 90 or 92 cents per hour.
He worked regularly and was never laid off.
Barnett was employed at the mill when the Union campaign began ; the record
establishes that he first became aware of it when O'Ware asked him if he had
seen any union leaflets. Barnett testified, and the undersigned finds, that the
assistant superintendent was skeptical of his denial. His subsequent talks with
the latter about the Union, before the election, have already been noted ; Barnett
testified, and the undersigned finds, that when questioned by O'Ware as to what
be was going to "do" in the election, he advised the assistant superintendent that
he intended to vote for the Union.
After the election, as noted, Barnett and O'Ware discussed the reaction of
the company to its "victory" at the polls on three occasions. Their final conver-
sation, in which O'Ware repeated his previous reference to the alleged "stretch-
out" policy of the Respondent and certain anticipated discharges , occurred, as
noted, in the presence of several other employees ; their names, however, do not
appear in the record.
Shortly thereafter, on October 31, 1946, O'Ware accosted Barnett at work,
ordered him to stop at once, and told him, reluctantly, that his discharge had
been ordered because the "office" believed him to be guilty of spreading "gossip"
about the forthcoming layoffs and the alleged "stretch-out" policy of the Re-
spondent . 18 Barnett denied making any of the statements attributed to him,
and insisted that O'Ware, in fact, had been responsible for them. His protest
was rejected by the assistant superintendent who advised him not to "quote"
the matter further saying that it would not "help" him.
Several days later, after an unsuccessful attempt to see President Smyly, Bar-
nett presented his grievance to Superintendent McNeil ; the latter expressed
sympathy, but disclaimed all responsibility for the discharge and the reinstate-
ment which Barnett sought. He escorted Barnett, however, to Smyly's office.
The latter informed the carpenter that his work had been good, but that he had
"talked" too much. Specifically, Smyly again accused him of gossip about lay-
offs and a "stretch-out" policy. Barnett's offer to prove that he had not been
responsible for the statements attributed to him was rejected by Smyly, who said
"let it go" and left his office. A final appeal to Superintendent McNeil elicited
the statement that he could do nothing, and Barnett left the plant. He never
received a discharge notice.
The record establishes that Barnett was dismissed in the middle of the after-
noon, on the day before a payday, and that he was not permitted to complete
the work at which he was engaged. He testified, and the undersigned finds, that
lie had never been reprimanded, before his discharge, for "gossip" or any other
11 Barnett ' s testimony that he received a covert raise when assigned to work as a leadman
was denied by McNeil ; the undersigned regards the conflict as immaterial.
11 Barnett ' s testimony with respect to the statements of O'Ware is corroborated indirectly
by that of Lloyd ; the latter testified that O 'Ware had mentioned Barnett ' s discharge "a
time or two !' after it occurred , praised Barnett as a worker, but went on to say that Barnett
had talked about him, behind his back and that the office had "got ahold" of information
about it and Barnett ' s remarks "about the Union and all " and had insisted on his discharge.
The undersigned credits Lloyd , whose testimony in this connection is untienied.
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reason" And his testimony that he received no discharge slip is undenied. No
attempt has been made, in this case, to justify the summary action taken with
respect to his discharge.
The carpenter has not sought work at the mill, except for an abortive conversa-
tion with O'Ware, since his last conversation with President Smyly.
b. Henry Sylvester Batts
Batts was first employed by the Respondent in 1928 or 1929. He worked
Intermittently thereafter, in a wide variety of jobs, his successive periods of
employment being interrupted by work as a self-employed farmer. In May of
1946, after a period of farming, he applied for work and was hired by Assistant
Superintendent O'Ware. As a member of the maintenance crew thereafter, he
worked occasionally with Barnett. In July, he was assigned to work at "laying
up" roving for the slubbers.
When the Union's campaign began, Batts was earning 721/2 cents per hour.
He attended the open meeting at the garage, already noted, and signed an
application for union membership. Thereafter, according to his undenied and
credited testimony, he assisted the union organizer actively, talked to his fellow
workers about the union at their homes, visited fellow employees-with the
organizer-in the mill village, Eastman, and the neighboring countryside, and
distributed union handbills in town and in the mill village.
His conversations with Superintendent McNeil about the Union have already
been noted. In the course of the second conversation, as noted, Batts informed
McNeil that he had become a union member. McNeil's reaction, if any, is not
recorded.
The conversation between Batts and Director Ragan, which occurred before the
election, at or about the time of the second conversation between the employee and
Superintendent McNeil, has also been noted. At this point, it is only necessary
to add that Batts, in response to the questions of Ragan as to his opinion of the
Union and its chances in the election, expressed approval of the organization
and the opinion that it would "win" at the ballot box. Ragan, according to
credited testimony, then promised that he would make an effort to secure physical
improvement of the mill, and requested Batts to convey this information to
the other employees. The employee's reply, if any, is not reported.
On the 31st of October, Batts was discharged. His credited testimony, which
stands in the record without denial in a material respect, establishes that he
had ripped his overall trousers, accidentally, while at work. To avoid an injury
which might reasonably have been anticipated if the torn trousers were to
become entangled in nearby machinery, Batts left his work for a "nail" to mend
the rip-after informing the fixer responsible for the machines, Lonnie Cooey,
of his intention.20 At the repair shop, where Batts secured the nail he sought,
Barnett informed him of his own discharge, already noted, which had just
occurred. According to Barnett, whose testimony corroborates that of Batts,
19 Superintendent McNeil, in cross -examination , testified that O'Ware had reported-on
several occasions-that Barnett did not "get along" well with the other men on the mainte-
nance crew ; he also testified that Barnett had complained to him, directly , that he was not
getting enough "credit" for the work he was doing . McNeil could not date these conversa-
tions in relation to the date of Barnett 's discharge and testified that he had not paid much
attention to them. It is clear, in any event , that O'Ware 's remarks were never relayed to
Barnett.
20 Batts testified , and the undersigned finds, that his second hand, Millard Wright, was
not on the floor, at the time, to grant him permission to leave.
EASTMAN COTTON MILLS 49.
the slubber hand reacted with the observation that he might be selected for dis-
charge also, and returned to his job at once.
According to Batts, whose testimony is credited, he had been absent about 5
minutes; when he arrived at the slubbers, he found another man at his job
station and was told by the fixer that Second Hand Wright wished to see him.
The latter informed Batts that he had to "let him go" because of his action in
absenting himself from work; he referred Batts to George A. Johnson, the new
overseer, for a further discussion." When Batts saw Johnson, on the day after
his discharge, the overseer gave him his time slip and, in effect, ratified the action
of the second hand, who had written "for not staying on the job" on the separation
notice which recorded his dismissal.
Batts has not sought reemployment at the mill, and the Respondent has never
offered to rehire him. In connection with a subsequent claim for unemployment
compensation, Batts contended that he had been dismissed because of his union
activities but was denied benefits for a period of 4 weeks ; the ruling was re-
affirmed after a hearing, on the Respondent's counterclaim that he had been
dismissed for misconduct.
7. The resumption of union activity
On a date, presumably in October, which does not appear in the record, the
Union renewed its effort to organize the Respondent's employees. While the
nature and extent of its activities are not reported clearly, a bulletin posted by
the Respondent on November 3, 1946, clearly implied that the campaign of the
Union had been renewed at an earlier date--since it spoke of rumors which
"have been" circulated in an effort to organize the employees of the mill, and
stated that the organizers 'care also using" pamphlets which the Respondent
characterized as containing misinformation, innuendo and untruths. On the
13th of November, Clyde Brock, a union organizer, assumed responsibility for
the direction of the campaign. Strenuous efforts were made to secure a new
set of membership applications, sufficient in number to warrant the presenta-
tion of a new petition to the Regional Office of the Board. Although detailed
information with respect to the extent of the new campaign is not available,
it seems clear that the efforts of the Union to reorganize the employees of the mill
were a matter of common knowledge, and the record establishes that Brock and
a local newspaper editor engaged in a spirited exchange of views with respect to
the merits of organization, in the letter and editorial columns of a local news-
paper.
21 Wright contended that the machine for which Batts was responsible had been permitted
to run out of "roving " in his absence ; the inference was that Batts had absented himself
at a time when he was not "caught up" on his job. Batts testified , however , that the inci-
dent which required him to leave the machine occurred at a time when the supply of roving
had been permitted to "run down" pursuant to instructions , so that the machine might be
cleaned . His testimony had not been contradicted . As a witness , Wright admitted in
cross-examination that his testimony as to the length of the period for which Batts was
absent had been based upon an inference , grounded in the observed state of the "creeling
and roving " on the slubber frames for which Batts was responsible ; although he testified
that it was unnecessary to remove the roving from the creels in order to wipe them-and
that it was not customary to let the roving run "loose" when the creels were to be wiped-
he did not deny that Batts had been instructed, previously, to let the roving run down in
order to clean the machine. The undersigned credits the testimony of Batts in this
connection.
903847-51-5
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8. Additional discharges
a. G. Ben Williamson
The employment of Williamson by the Respondent began in 1934, at, which
time he was hired as a "spare hand" at 30 cents _per hour ; after a short period
of work as a "cloth tier," he served for last 6 years as a night watchman and
for the last 12 years of his employment as a machinist in the Respondent's
repair shop. When his employment was terminated on November 16, 1946, he
was receiving something over 90 cents per hour 22
Williamson had signed an application for membership in the Union on Sep-
tember 4, 1946. Thereafter, he had assisted the union organizer in contacting
other workers, attended meetings, made no secret of his union affiliation among
the employees, and rode openly in the organizer's car. In a conversation with
Assistant Superintendent O'Ware, he had expressed the opinion that the Union
would "win" the election-an opinion with which O'Ware had agreed. After
the election in October, O'Ware, who knew of his union sympathies, told him,
also, that the Respondent then intended to dismiss employees who had been
active in support of the Union. Shortly thereafter, Williamson, according to
his undenied and credited testimony, accosted Superintendent McNeil, referred
to the rumors that the Respondent had a "blacklist" on which his name ap-
peared, and requested McNeil to accommodate him by moving his name "down
the list" a little further22 Later, however, on a date which is not reported,
Williamson renewed his previous application for union membership.
As a maintenance machinist in the employ of the Respondent, Williamson was
responsible for the operation of the plant's air compressor and for the installa-
tion, maintenance and repair of machinery and electrical equipment 29 Assistant
Superintendent O'Ware was his only supervisor. The record establishes that
O'Ware had never criticized Williamson's work or his conduct.
On the 16th of November, while at work in the shop, Williamson was asked
by Robert Revel, a fixer, to repair a "roll" bar-a broken machine part. In
an attempt to comply with instructions-previously issued by the assistant
superintendent-to the effect that all repair work done in the shop had to be
evidenced by a written order signed by a second hand or other responsible super-
visor, Williamson asked Revel if he had an "order" for the repair work. The
fixer replied that Millard Wright, the responsible second hand, had not been
available to write an order when the machine part in need of repair had broken ;
he stated that a rush job was required and promised that he, or Millard Wright,
would produce an appropriate "order" before Williamson completed the work 25
22 The increase in Williamson 's pay was entirely due to raises of general applicability.
23 McNeil, according to the testimony of Williamson, denied the existence of the list.
24 The record shows that the job required him to weld , cut gears , fix motors, replace
fuses, and to do other work of a similar nature. Despite a slight amount of confusion
in the record as to changes in the nature of his assignment before the Union campaign
began, the undersigned is satisfied that Williamson had no supervisory authority in
the shop.
25 No order was ever tendered by Revel or Wright. And the record establishes, to
the satisfaction of the undersigned, that the indicated action of Revel was part of a
prearranged plan to create a pretext for the dismissal of the machinist . Second Hand
Lloyd, whose testimony is credited, described the formulation of the plan as follows :
. . . me and Mr. Wright and Mr. Johnson was in the office. And . . . Mr. John-
son said that Mr. O'Ware was worried. And me or Mr. Wright, one, said, "Why?"
. .. He said he [O 'Ware] had to let Ben Williamson go before he went home,
and he left at 4 o'clock . And Mr. Johnson turned and asked me and Mr. Wright
if we could get something or other to be fixed and carry it down there without an
EASTMAN COTTON MILLS 51
The machinist immediately turned to the task at hand; his testimony indi-
cates that it was about a "three minute" job. Shortly before it was com-
pleted, however, O'Ware entered the shop; he accosted Williamson at once, and
asked him to produce the order for the work at which he was engaged. Wil-
liamson explained that no order had been ready when the work was brought
to the shop but that he had been promised a copy of the order before the
job was completed. He offered to get it at once. Contending that Williamson
had violated a company rule by the acceptance of work which had not been ac-
companied by an order, O'Ware, however, discharged him forthwith26
The machinist sought reinstatement, thereafter, at the hands of Overseer John-
son, Superintendent McNeil, and President Smyly ; he was not rehired. His claim
for unemployment compensation benefits, later filed, was temporarily disallowed,
on the basis of the Respondent's contention that he had been discharged for mis-
conduct in connection with his work; Williamson appealed but failed to win a
revocation of his disqualification. Shortly before the hearing on appeal, Wil-
liamson asked O'Ware to reinstate him ; the assistant superintendent replied that
he would not be "permitted" to rehire the machinist at the Respondent's mill.
Williamson made no further effort, thereafter, to achieve reinstatement.
b. Otis C. Batts
The employment of Otis Batts at the Respondent's mill began in the spring
of 1937, when he was employed as a "spare hand" at 20 cents per hour. His
last 3 years of employment with the Respondent were spent as an oiler in the
Spinning Room, for which he received 52 cents per hour at the outset ; he could
not recall his rate of pay in 1946. The record indicates that it may have been
727/2 cents per hour. The oiler testified, and the undersigned finds, that his pay
was increased coincidentally with general pay increases given at the mill.
Batts first heard of the Union campaign from a fellow employee ; he attended
the first open meeting of the organization at the garage and signed an applica-
tion for membership. The record establishes that he was one of those in front
of the garage when Second Hand Lloyd and Assistant Superintendent O'Ware
passed in their car.27
When the Union resumed its organizational effort after the first election, Batts
"rejoined" and assisted Brock, the union organizer; his testimony establishes
that he spoke to 30 or 40 employees, in their homes and his own, and persuaded
them to sign applications for Union membership. On several occasions, he accom-
panied Brock to show him where particular employees lived. At least 1 of the
employees solicited on behalf of the Union by Batts lived in the mill village.
Under the circumstances, and in view of the open character of the activity in
order and tell Mr. Williamson to fix it and bring an order later. And I told
Mr. Johnson I didn't have anything at all up there. Mr. Wright turned and told him,
"Well, I can get something." So Mr. Johnson and Mr. Wright went on down in the
Spinning Room, and Mr. Wright got something or the other and sent it down
by Robert Revels.
Lloyd testified credibly, that he had seen Revel on his way to the shop, and that he had
seen Johnson, thereafter, in conversation with O'Ware.
21 Williamson testified, credibly, that O'Ware expressed a reluctance to discharge
him, and cited the fact that he had been "talking" too much as a coordinate reason
for the discharge.
27 Batts testified that Curtis Coleman, another second hand, was also riding in the car.
His testimony with respect to Coleman has not been corroborated ; it is inconsistent with
the testimony of Lloyd. The undersigned finds that Coleman was not in the car.
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which Batts engaged, the undersigned infers'and finds that his activity on behalf
of the Union was known to the supervisory officials of the Respondent 's mill.
His regular work as an oiler in the Spinning Room required him to oil the
spindles on the machinery. In addition , for something more than an hour every
day, Batts was required to "blow down " the lint which accumulated on the over-
head light fixtures , and in other parts of the room.28 The work required him to
manipulate a lengthy hose, attached to pipes fed by an air compressor , and fitted
with a metal nozzle.29 When the nozzle was directed at an object from which lint
was to be blown, compressed air, equivalent to 85 pounds of pressure at the com-
pressor-escaping from the nozzle-dislodged the lint.
Batts usually performed this task, according to his testimony in direct exami-
nation , at 8 p. in . every night . On November 18, 1946, however , Second Hand
Wright, his immediate superior , instructed him to "blow down " the lights at
3 p. in. the next day.30 This , Batts did. While he was engaged at this task on
the 19th of November , within 25 or 35 feet of the Spinning Department office,
two fluorescent bulbs, in fixtures which were set to swaying by the air blast
from the nozzle of the hose he was required to manipulate , fell and were broken..
Immediately after the second bulb fell-approximately 5 minutes after the first
had been dislodged-Second Hand Wright, at the request of the overseer , informed
Batts that Johnson, who had witnessed the breakage , wished to see him, and
that he would be replaced . In a lengthy conversation with Johnson , which fol-
lowed, Batts was censured severely for his alleged failure to heed instructions,
which the overseer said he had received , and prior notice allegedly given on
several occasions that breakage due to his negligent use of the hose might impel
the Respondent to discipline him. He insisted , at length , that he had never
received a complaint about the way in which he did this part of his work, that
he had never received instructions as to the way in which "blowing down" was
to be done, and that he had never been warned about breakage . His protest,
however, was disregarded.
Batts never applied for reinstatement after his separation on November 19,
1946. When filing a claim for unemployment compensation benefits, some time
later, he repeated the reason for discharge given him by the Respondent 's over-
seer ; 31 his claim was disallowed for a period of time which is not set forth in
the record . This decision , with respect to his unemployment compensation claim,
was affirmed , after a hearing, on appeal:
9 The record , and a personal inspection of the mill by the Trial Examiner , establishes
that the fixtures-long rectangular fixtures for fluorescent lights-are suspended from the
ceiling by two chains about 4 feet long and hang about 10 or 12 feet from the floor.
21 The last few, feet of hose were tied to a pole, to steady the hose when lifted.
30 The record indicates that it had once been a company practice to "blow down" on the
first shift, at or about 9 a. m., and also at or about 3 p. in. on the second shift. On a date
not set forth with particularity in the record, however, the Respondent revised this
arrangement , and scheduled a single "blow-down" at 10 p. in., after the second shift.
The record warrants an inference that this change became effective before the discharge
of Batts, and the undersigned so finds. It is clear , however, that he was doing it in
the afternoon on the day of his discharge, hereinafter noted.
31 The Respondent , in cross-examination, implied that the oiler ' s statement in conulee-
tion with his unemployment compensation claim should be treated as an admission with
respect to the reason for his discharge; the record establishes, however, that Batts merely
permitted the unemployment compensation claims taker to copy the reason for discharge
given him previously by the overseer. The undersigned finds no merit in the view that
he thereby admitted the truth of the reason given.
EASTMAN COTTON MILLS 53
c. Obie, Dyle Coleman.
Obie Dyle Coleman's employment by the Respondent began in 1940, at which
time he received a "half" job as a doffer at 321/2 cents per hour. After 7 weeks
he was given a full job, which he retained until drafted by the United States
Navy in 1943. On or about February 1, 1946, he was reemployed as a doffer.
Some time later, he was forced to take a 10-week leave of absence because of a
war-connected illness. After a recovery, he returned to work as a spare hand ;
2 weeks later he was restored to his old position. The record shows that he was
regarded as an "average" doffer.
Coleman joined the Union before the first election, in September. Thereafter,
and before the election, he assisted the C. I. O. organizer generally, signed up
six or seven others at their homes-none of them in the mill village-and accom-
panied the organizer on several occasions, in town. Coleman testified without
contradiction, and the undersigned finds, that Second Hand Wright walked by,
on one occasion, while he was sitting in the organizer's car, and that he "could
have been seen" by Wright. Under the circumstances, in the light of the Re-
spondent's interest in the Union sympathies of its personnel, and in view of Cole-
man's open activity on behalf of the Union, the undersigned infers and finds that
his interest and activity on behalf of the organization were known to members
of the Respondent's supervisory staff.
On the 22nd of November, Coleman reported for work on the second shift
10 minutes before 2 p. in., his regular starting hour. Upon arrival he found
that one of the spinning frames for which he was responsible had "tangled" and
stopped. According to Coleman, whose testimony is credited, this was the third
occasion in 3 days on which he had found a "tangled" frame at his job station
when reporting for work. Neither of the first shift doffers regularly assigned to
the particular job station was present. Coleman sought the first shift fixer
forthwith, and requested assistance with respect to the "tangled" frame,"
but was told that nothing could be done, in the absence of the first shift doffers .'
When the second shift fixer, Robert Revel, arrived, Coleman who, in common
with other doffers, regularly doffed the spinning frames for which he was
responsible in a predetermined sequence-requested instruction with respect
to the "tangled" frame, asking whether he ought to doff it first or doff it "in
]ine"-that is, in its regular turn.34 Ile was instructed to doff it "in line" and
started his regular tasks at once.
When Second Hand Wright came by. while he was at work on his first frame,
shortly thereafter, Coleman asked, in colloquial terms, if his incentive pay for
the week, which was dependent upon the production of the spinning frames
for which he was responsible, would be determined on the basis of figures adjusted
to include an estimate as to the number of "hanks" or production units which
82 The record shows that a "tangled ' frame takes approximately 50 percent more time
to doff than a frame in regular order, because of the extra work involved in piecing up
broken ends of yarn. .
33 Although the testimony of Coleman, which the undersigned credits, was that the
first shift doffers had gone home early, Wright insisted-as a witness-that they were
still on the job at 1 : 55 p. m., 5 minutes before shift changing time. The undersigned,
while crediting Coleman, regards the conflict as immaterial ; it is clear In any event that
the first shift doffers were not available for work on the tangled frame.
83 The record establishes , to satisfaction of the undersigned , that doffers frequently
sought their fixer for Instructions with respect to "tangled " frames and that they were
never asked not to consult fixers in such matters.
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the inoperative frame would have produced if it had not been idle.86 Wright
asked if he had ever been "beat out" of anything by the company. Coleman
replied that he knew of no occasion on which this had occurred, but that it
was possible. In the course of the discussion which followed, Wright asked
Coleman why he did not quit if he didn't like his job; Coleman replied that he
would not quit and that if Wright wished to get rid of him he would have to
discharge him. Both of the men, the undersigned finds, were angry Se Wright
finally suggested that Coleman accompany him to the office of Overseer Johnson.
There, he asked the latter to terminate Coleman's services. A lengthy argument
about the "tangled" frame and Coleman's discussion with Wright followed, at
the end of which Johnson accepted Wright's observation that Coleman had,
expressly or in substance, refused to run his job, and pursuant to the renewed
suggestion of Wright, wrote a separation notice for Coleman giving that reason
for his discharge" Coleman angrily refused to accept it and left the mill.
15 The record establishes that It was the regular policy of the Respondent, when spin-
ning frames were stopped, to supplement actual production figures with an "average"
figure to represent the number of "hanks" which the inoperative frame might have
produced during its period of Idleness, and to compute the compensation of doffers on the
basis of the adjusted production figures.
88 Coleman admitted, in cross-examination, that he did not like to doff tangled frames,
and that the sight of this frame-the most recent In a series of three-had made him feel
somewhat "imposed" upon ; although he denied that he had been in a "bad" humor, he
admitted that it was "possible" that he had cursed.
87 The Respondent insisted, in this case, that Coleman had refused, categorically, to
doff the tangled frame. And a synthesis of the testimony offered by Johnson and Wright,
In fact, reveals their version of the Incident to be sharply opposed to that of the doffer.
For example, Wright testified that Coleman, 5 minutes before the shift change,
had asked him to get the first shift doffers to work on the "tangled" frame-and said
that he had received a report, somewhat later, that Coleman had refused to doff It. The
second hand testified that he had then undertaken a personal investigation. He insisted
as a witness, that Coleman and his doffing partner-doffing in line-had reached the
"tangled" frame, which was ready to doff ; that Coleman had then told him, directly, that
he would not doff his side of it, on the ground that it was not his duty ; and that he
had thrown down his "quills" and walked out. Wright's testimony, If accepted, would
support the Inference that Coleman had resigned ; he insisted that Coleman had been
asked to doff the frame; that the doffer had refused to obey this order, saying that he
would quit first ; and that he had, In fact, been replaced by a spare hand after he left the
job.
Johnson, on the other hand, testified that Coleman had come to him-about 30 minutes
later-with a report that Wright had "taken" him "off" the job. He said that he and
Coleman had gone to meet Wright at the foot of the Spinning Department runway ; that
Wright had accused Coleman of a refusal to doff the frame ; that Coleman had reiterated
his refusal to doff it; that he, Johnson, had ordered the doffer and Wright to settle
the matter themselves ; and that he had discharged Coleman, later, after he was in-
formed that Wright and the latter had been unable to adjust their difference of opinion.
The second hand corroborated this testimony. It was at the time of the discussion at
the foot of the runway-Wright insisted-that Coleman had asked if he was going to get
an "average" for the "tangled" frame. Wright admitted that he had countered with a
question as to whether Coleman had ever been "beat out" of anything by the company.
He went on to testify that Coleman had replied in the negative, that he had reiterated his
refusal to doff the "tangled" frame, and that he had then walked into Johnson's office.
In cross-examination, Wright testified that the third,frame on the job was the "tangled"
one; that the first shift doffers were busy at the seventh frame when Coleman reported
for work ; and that they had doffed the ninth of the ten frames on the job by shift changing
time. Although he went on to testify that an average team of doffers required 4% or 5
minutes to doff a frame, he insisted that Coleman and his partner had reached the
"tangled" frame, doffing three frames before they reached it, about "three or four
minutes" after they started work. In the light of the second hand' s own testimony,
the undersigned regards it as extremely unlikely that Coleman had reached the
"tangled" frame. There could therefore be no Immediate Incentive for Coleman's
EASTMAN COTTON MILLS 55
Later, in the spring of the following year, Coleman applied for a job in the
Spinning Room of the Respondent's mill. His testimony establishes that he
was promised a job by Johnson as soon as one became available. The record
shows, however, that he was never reemployed.
9. The second petition
On December 2, 1946, the Union filed its second representation petition on be-
half of the Respondent's mill employees. The case was docketed as 10-R-2382;
the undersigned infers, in the absence of evidence to the contrary, that the
Respondent received appropriate notice of that fact shortly thereafter.
10. More discharges
a. Hayward G. Lloyd
On the day the second petition was docketed, Second Hand Lloyd was dis-
charged, allegedly for "demonstrated inability" to perform the duties required
in connection with his employment.
His employment by the Respondent had begun in the autumn of 1924, at which
time he started as a "draw frame" operator at $6 or $7 per week. Thereafter,
for a time, he "ran cards" in the Card Room. For 8 or 10 years after this
experience-in the course of which he was never disciplined for any deficiency
or breach of the rules-Lloyd ran slubbers. He was then promoted to work
as a fixer of slubbers and fly frames;" he spent 41/2 years at this work, in
the course of which he received several raises, and finally earned $39 to $40 for
a 48-hour week.
For the last 6 months of his employment as a fixer, Lloyd was supervised by
Assistant Superintendent O'Ware, at which time he was earning $47 per week.
After 6 months, O'Ware promoted him to the position of a second hand, with
the approval of Superintendent McNeil.39 He received a raise in connection with
the promotion ; the amount of the raise is not disclosed. He served for 2 years
as a second hand, in the Card Room, under the assistant superintendent. As
such, it was his duty to carry out the instructions of the overseer, to assign
work to the "hands" on the second shift, to approve any requests for leaves of
absence, to direct the work they did, and to recommend personnel action. Lloyd
testified, credibly, that O'Ware had never complained about his work or conduct
on the job, that he was never disciplined or laid off, and that, in fact, he had been
the recipient of affirmative praise by O'Ware and Superintendent McNeil.10
The undersigned so finds.
alleged insubordination . For this reason, and because of the inherent implausibility
of testimony that a doffer would refuse to perform an assignment because of a normal
hazard incidental to his employment, and upon the entire record and his observation of
the witnesses, the undersigned credits Coleman's testimony that he did not refuse to doff
the "tangled " frame, and rejects the contrary testimony of the Respondent 's supervisory
personnel.
The superintendent testified , without contradiction, that Lloyd was not responsible-
as a fixer-for the carding equipment or the equipment in the opening and picking rooms.
The undersigned so finds.
as McNeil did not deny that he had given his approval.
40 The superintendent intimated that O 'Ware might have made a minor complaint or two
about Lloyd's work as a second hand ; he testified directly, however, only with respect to
several occasions on which he had mentioned to Mr . O'Ware that Lloyd had been seen where
he had no "business " to be. Elsewhere in his testimony , McNeil indicated that he did not
recommend any personnel action to subordinate supervisors , but occasionally expressed
56 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
The record establishes that Lloyd became aware of the Union's campaign,
before the first election, as a result of the "general talk" in the mill. Later,
according to his credited testimony, several of the employees in the Card Room
showed him their union membership applications. The automobile ride in the
course of which he and the assistant superintendent observed those present at
the first meeting of the Union has already been noted.41 According to Lloyd,
O'Ware talked about the Union frequently before the first election; he approved
of it, but often advised Lloyd not to have anything to do with it, in order to
avoid difficulty.
After the first election, O'Ware discussed the Union, its employee supporters,
and the policies of the Respondent, with Lloyd several times.42 On one occasion,
according to Lloyd, O'Ware called his attention to the fact that the number of
men on the "quill" machine had been reduced, and stated that the Respondent
had done it as a "reprisal"; he intimated, on another occasion, that the Respond-
ent had plans for the assignment of more work to the doffers and spinners.
According to Lloyd, these plans were never put into effect. On another occasion,
after the discharge of Barnett, O'Ware, according to the credited testimony of
Lloyd, told the latter that Barnett had been a good man and that he had thought
well of him. He went on to say, however, that Barnett had talked about him and
that the "office" had given him orders to let Barnett go. With respect to
Williamson's discharge, O'Ware told Lloyd that Williamson had also been a good
worker but that he had to let the machinist go because the latter had talked
"against" him and because he had made remarks for and against the Union ;
he also told Lloyd that the office had been "pressing" him to let Williamson go.
Lloyd testified without contradiction, and the undersigned finds, that he and
Millard Wright had discussed the activity of Obie Coleman in "signing up"
people for the Union before Coleman's discharge-at which time, according to
Lloyd, Wright stated that he had been instructed by Johnson to let Coleman go if
he "caught" him at something connected with his work. Wright informed Lloyd
according to the latter's credited testimony, that he planned to fire Coleman in
accordance with this suggestion. Coleman was, in fact subsequently discharged-
as noted.
Sometime after the first election, on a date which is not recorded, O'Ware was
relieved of responsibility for the Card Room, and Johnson, the new overseer,
became Lloyd's immediate superior. Shortly thereafter, Johnson discussed the
work of several employees with Lloyd. Their attitude with respect to the Union,
Lloyd testified, was also a subject of discussion. The record establishes to the
satisfaction of the undersigned, that Johnson had said he would have to find
an "excuse" to fire Otis Batts, who had been active in the Union,43 and that
Johnson had remarked, with respect to Williamson, that he "talked" too much.
opinions as to what he would do in their place-opinions which they were free to reject
or accept; his testimony with respect to Lloyd establishes that he did not recommend the
discharge of the latter at any time, or even advise O'Ware that he would discharge the
second hand if he were in the assistant superintendent's place.
41 Lloyd testified that O'Ware had taken him for the ride expressly to see what was going
on at the garage and to determine whether the Union was having a meeting, as scheduled,
or not. Neither of the men lived on, or near, the Soperton Highway.
42 Once, according to Lloyd-whose testimony is credited-O'Ware stated that the Re-
spondent would "fight" the Union as long as it could, in every way the law allowed ; that
it would spend a "lot" of money to fight the Union; and that Smyly would never sign a
union contract.
43 Batts was discharged "something like a week " later.
EASTMAN COTTON MILLS 57
On two occasions Johnson asked Lloyd, the undersigned finds, to help in the
identification of the Union supporters in the Card Room. On the first of these,
in the presence of Wright, Lloyd was requested to "call out" the names recorded
in his "time" book. Johnson questioned him as to the attitude of each employee
with respect to the Union, and was observed by Lloyd to make a separate record
of those reported as favorably or unfavorably inclined with respect to the Union.
Lloyd testified, and the undersigned finds, that on the second occasion there was
a further roll call, in the course of-which the Union status of each employee was
reviewed orally while.Johnson counted the names of those in each category.44
Lloyd also testified, credibly, that he then left Johnson and Wright in the office
of the former, engaged in this activity, and returned to the Card Room 45
Johnson's interest in the activity of the "union" employees was not confined,
however, to those employed in the Card Room. Lloyd testified that Second Hand
Wright once directed his attention to a meeting, allegedly attended by a "union"
man, at the home of an employee, Thelma Treadwell. And Johnson, according
to Lloyd, later questioned him at length about Treadwell's conduct at work, and
went on to observe that she was connected with the Union and that he "might"
have to let her go. -
Lloyd, whose testimony establishes that he indicated opposition to the Union
in several conversations with O'Ware, testified nevertheless that he had dis-
cussed the prospect of a Union victory in the second election with Second Hand
Curtis Coleman, and that he had said it would be a "good thing" for the em-
ployees. Coleman, according to Lloyd, was known as an opponent of the Union ;
the record indicates that he had expressed the opinion that Lloyd was wrong."
The incident occurred in the latter part of November.
At or about the same time, Johnson referred to the union activity of employee
Lb Jones; in a conversation with Lloyd he reported that Jones had been seen
with Brock, the union organizer, and that he was regarded as strongly in favor
of Unions." Johnson, according to Lloyd, stated that Jones had been "signing
up" people for the Union and that he had "orders" to lay Jones off if he could find
an excuse.48 He then suggested several ways in which Lloyd might find an excuse
to discharge Jones. Lloyd's undenied and credited testimony establishes that he
referred to his lack of authority to discharge employees, and that Johnson asked
the second hand to send Jones to his office for discharge. Lloyd referred to the
practical difficulties which an effort to find a pretext for the discharge of Jones
would involve, but Johnson insisted. In spite of this, Lloyd, according to his
testimony-which is credited-informed Johnson shortly thereafter that he could
find no pretext for the discharge of Jones.49
44 Lloyd, in direct examination, said that O'Ware had once referred to the fact that he
had "broken down" the mill payroll to identify the Union supporters ; the date of their
conversation, however. has not been fixed.
45 Wright denied any participation in activity of this kind ; upon the entire record in
this connection, the undersigned credits Lloyd.
41 Coleman, it will be recalled, was in full charge of one shift in the Weave Room at the
time. According to Superintendent McNeil, he attended supervisory staff meetings regu-
larly ; Lloyd did not.
41 Johes was, in fact, a Union adherent.
a8 The Respondent's counsel, in cross-examination, sought to elicit an admission from
Lloyd that the union supporters were not discharged until they had clone something that
would "justify" the action of the Respondent in discharging them-something which pro-
vided a "good and proper" reason for their dismissal. Lloyd made no such admission
even if he had, the undersigned would consider it immaterial, as a legal conclusion.
99 Johnson gave an alternative version of this incident; the undersigned credits Lloyd's
recital, as noted.
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the 2nd of December, Lloyd was discharged. He was told by the overseer,
after a discussion of the mill 's production record, that he was being dismissed
for revealing confidential information with respect to the plans of the overseer
to discharge Eb Jones, and for telling a worker how to vote in the second election b0
When told that the Respondent would cite "unsatisfactory work" as the reason
for his separation, Lloyd denied that his work was bad; Johnson replied that
he "had" to discharge him 61 Lloyd immediately left the mill . His position has
never been filled.
Within 2 days, he returned to see Johnson and Superintendent McNeil. Accord-
ing to his testimony, which is credited, the overseer suggested, at first, that he
might get his job back in a week or at sometime thereafter ; the record establishes,
however, that Johnson also suggested that Lloyd ought to seek employment else-
where, that he gave the former second hand a letter of recommendation, and that
he wrote the name of a mill at which Lloyd might expect to find work on the
back of the letter.`
When Lloyd saw McNeil, he requested reinstatement as a fixer, the position
at which he had been employed before his promotion to employment as a
second hand. This request was denied by McNeil. Lloyd testified without
contradiction, and the undersigned finds, that he expressed the opinion to
McNeil that he had been dismissed on account of the Union ; and that the
Superintendent replied that "It might be something like that." In any event,
McNeil declined to take an action which could be construed as a reversal of
the overseer.
After some effort to find work elsewhere, Lloyd sought reemployment at the
Respondent's mill. He was interviewed by Smyly ; the latter asked him, at the
outset, if he had not given testimony "against" the company in connection with
the unemployment compensation appeals of other dischargees. The charge was
denied; McNeil supported the former second hand. The general manager then
asked if he had worked at another cotton mill, which he named. When Lloyd
replied affirmatively, Smyly asked if it was not a "union" mill. Lloyd said that
it was. The general manager then asked Lloyd if he had joined the union;
Lloyd replied that he had not done so. He was asked why he had resigned and
said that he had left because he had not liked the union, which he had been
strenuously urged to join. Smyly thereupon referred him to Johnson, who
employed him at once as a "spare hand" in the mill.
As a second hand, Lloyd had been paid $55 for a 48-hour week; as a spare
hand, he received between $37 and $40 for a 48-hour week, but usually worked
only 30 or 40 hours. After a few months, he left voluntarily ; he reported, when
resigning, that he was dissastisfied with his work because the company had
kept him on "cheap" assignments.
"Lloyd was informed that the second reason given was based upon the statements of
a woman employee, overheard in the rest room of the mill.
51 Lloyd testified, credibly, that he had never previously been told by Johnson that his
work or conduct were unsatisfactory . He insisted, and the undersigned finds, that Johnson
told him when he was discharged, that he had been a "good" hand, and that he, Johnson,
would not have fired him if "it" were to happen elsewhere . The Respondent ' s counsel
implied, in cross -examination , that Lloyd had been dismissed because of his failure to
guard company property against breakage ; Lloyd testified credibly, however, that Johnson
had made no comment of that kind.
11 Johnson admitted that he had prepared and signed a letter of recommendation for
Lloyd, but insisted that he had done so as an accommodation , and that such letters,
although customarily given, were generally regarded , in the industry , as unworthy of
serious consideration.
EASTMAN COTTON MILLS 59
b. Robert Emory Dixon
Dixon, a former doffer in the Spinning Department of the mill, was employed
by the Respondent on April 3, 1942, at 371/2 cents per hour. On June 25, 1944,
he left the employ of the company to serve in the Army." After 3 months of
service he received a medical discharge ; and after 3 weeks, on the 16th of
October, he sought reemployment at the mill.
Dixon had worked on the first shift before he was drafted ; he testified,
credibly, that his work had never been criticized. When he returned and re-
quested a first shift assignment, however, he was told that his replacement was
expected to leave shortly to join the Army, and that he would receive his old
assignment when the replacement went into the service.
After 2 or 3 weeks of part time work on the second shift in the Spinning De-
partment, Dixon asked Vance Rooks, his overseer, for permission to secure
temporary employment elsewhere until his regular job became available. Rooks
interposed no objection, and Dixon left the employ of the company temporarily,
as he thought, on the 29th of October.54 He found employment, almost at once,
at a nearby air base, where he remained for 11/2 months. On January 17, 1945,
after learning, accidentally, that his old job was open, Dixon resumed his
employment at the mill, as a regular doffer on the first shift-the job at which
he had been employed before his Army service. The record indicates that he
was regarded, at this time, as a "pretty good" doffer.
The doffer's undenied and credited testimony establishes that he attended
the initial meeting of the Union at Jones' Garage, that he signed an application
for membership, and that he assisted the union organizer actively there-
after." The record shows, in this respect, that he accompanied Pike, the Union
organizer, to the homes of workers in the mill village ; that he introduced Pike
to the employees ; that he distributed handbills for the Union ; and that he
"signed up" other workers. He testified, without contradiction, that he had
passed Millard Wright, on one occasion, while he was engaged in union activi-
ties. Although Dixon had previously signed a membership application, as noted,
on the 1st of September, he "rejoined" the Union when Brock renewed its cam-
paign in the latter part of October. Again, he assisted the union organizer,
distributed handbills, introduced Brock to the employees, and was seen in the
company of the organizer by two of the Respondent' s supervisors.
At the end of December, Dixon was informed by Jessie Hooks, the first shift
fixer, that he was being replaced as a doffer on the first shift by Fred Whittle,
a returned veteran, because the latter was entitled to reinstatement on the
job and because he, Dixon, had the least seniority of any regular doffer.56
His last day of employment was December 31, 1946. Being of the opinion that
the Respondent was in error as to his lack of seniority, Dixon carried his griev-
ance to Johnson. After a reference to company records, the latter informed him
that he had lost his seniority by interrupting his service with the Respondent to
take employment at the airbase in the autumn of 1944 and the early winter of
68 At the time, he was regularly employed as a doffer.
64 The doffer testified , credibly , that Rooks said nothing about the possibility that he
might lose seniority at the mill by leaving.
05 Dixon testified , and the undersigned finds, that he was one of those who saw Lloyd
and O 'Ware drive by the meeting.
68 The record establishes that Whittle had not been required to work as a spare hand
after his return. Johnson testified , and the undersigned finds, that Dixon was replaced
by Whittle immediately, at his order-and purportedly in conformity with the Respond-
ent's understanding of its obligation - to Whittle- under the Selective Service Act.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the following year. He was offered spare work as a doffer, instead, and sought
the work at the mill a number of times, usually on the first shift but occasionally
on the second, without success." Thereafter, he filed a claim for unemployment
compensation, made no further attempt to report for spare work, and (lid not
even seek reinstatement at the mill until the summer of 1948 58 Johnson then
informed hini that the mill had an opening for a spinner but that it required no
doffers. Dixon has made no further effort to seek employment at the mill.
11. The second election
The second election was held on January 24, 1947. There were 320 eligible
voters ; 276 of them cast valid votes. Of this number, 88 voted for representation,
by the Union, and 188 voted against such representation 69 The Union has made
no further effort to organize the mill.
B. Analysis and conclusions
1. The discharges
a. Earl E. Barnett
The General Counsel argues that Barnett, a known union supporter, was dis=
charged at the outset of the second, union campaign because of the Respondent's
mistaken belief with respect to his responsibility for' the dissemination of rumors
that it proposed'to lay off or discharge a number of employees, and to adopt
a "stretch-out" policy.00 The statements erroneously attributed to the carpenter,
it is said, even if not an accurate representation of the Respondent's intentions,
were not a malicious invention disseminated independently of the concerted
activity of the employees, but constituted an integral and relevant part of the
mutual effort to achieve self-organization ; they were therefore, the General
Counsel alleges, well within the field'of concerted activity entitled to statutory
protection.
The Respondent did not cross-examine Barnett. Its counsel argued, when his
direct examination ended, that the General Counsel had failed to make out a
prima facie case with respect to the allegedly discriminatory character of his
discharge-on the ground that his testimony had revealed the reliance of the
Respondent on` its genuine belief that he had accused it of bad faith, an intent
to violate the statute after the first election, and previous discharges for union
67 Counsel for the Respondent questioned Dixon, in cross -examination , about sums he
had allegedly earned in January of 1947. Dixon denied the earnings. No effort was made
by the Respondent, however, to prove that Dixon performed services after his layoff as a
regular doffer.
68 The Respondent sought to establish , by its own witnesses and in the cross -examina-
tion of Dixon, that he had sought spare work on but a few occasions, in spite of the fact
that it had been available . Dixon insisted that he had reported at least once a day on
15 or 20 separate days, but that other applicants for spare work had received assignments
while he was neglected . He could not recall the dates on which he reported ; the record
establishes, however, that the Respondent would have been equally hard pressed to sup-
port its contention with certainty-it keeps no record of the people who report for spare
work without success.
"The record indicates that one of the union observers in this election-a brother of
Robert E. Dixon-is still in the Respondent's employ, and that the other observer resigned
voluntarily.
80 The carpenter denied, at the time, that he had been responsible for the statements
attributed to him, and the only evidence which tends to support a contrary view, in fact,
is to be found in the "hearsay " testimony of another dischargee . The undersigned has
credited the carpenter 's denial.
EASTMAN COTTON MILLS 61 .
activity. The Respondent argued that the existence of justification for the com-
pany 's belief was , and is , immaterial-since Barnett 's testimony must be taken
as an admission that he was discharged, not for union activity, but for conduct
subversive of discipline at the mill.
After its motion to dismiss the complaint with respect to Barnett was denied,
the Respondent adduced evidence to establish that the carpenter was a "chronic
griper" who frequently complained about his treatment by the Respondent and
its supervisory personnel ; " that he lacked the ability to maintain a friendly
relationship with his immediate superior and others ; and that he had given
voice to his dissatisfaction and threatened to resign82 On the basis of this
testimony the Respondent alleges, in its brief, that Barnett had been discharged
because his "difficult personality" made him an unsatisfactory employee.
The undersigned finds no merit in the apparent contention of the Respondent B3
It offered no independent evidence with respect to Barnett's actual discharge.
And the credited testimony of Barnett certainly will not support the conclusion
that he was dismissed because of his "attitude," or because of poor relations
with a superior-or even that he was given these reasons for the Respondent's
action.
The Respondent, however, cites, as the "final reason" for Barnett's discharge,
the fact that he had "deliberately and publicly misrepresented" certain facts
which would, in their very nature, tend to impair the morale of the mill em-
ployees. The undersigned finds this contention, also, to be without merit. At
the outset, it must be reiterated that the record, summarized in this report, will
riot support an inference that he was actually responsible for the statements
attributed to him. And even if it be assumed, for the purpose of argument, that
he made such statements or that the Respondent's belief as to his responsibility
in that respect was genuine-no legal justification for its action thereby arises."
Most favorably construed, the record establishes only that any statements Barnett
made merely involved the repetition of similar statements by the assistant super-
intendent. Under the circumstances, they cannot be characterized as "deliberate
misrepresentations" of fact. And certainly, they cannot be described as evidence
of a malicious desire to injure the Respondent, or to impair the morale of its
employees. In their context-immediately after an election, and at the outset
of the renewed organizational campaign-they were, if made, obviously relevant
ei Superintendent McNeil testified that Barnett , on one occasion , vigorously protested
a reduction of working hours which eliminated his opportunities for overtime pay; rue
Superintendent 's testimony indicates that Barnett made an effort to carry his protest to
President Smyly, and that the latter-then occupied wih a long disance call-waved him
out of the office. After a personal investigation, McNeil said, he advised O'Ware to put
Barnett and the rest of the crew to work on the newly reduced schedule or to get "some-
body" who would work. In cross -examination . McNeil insisted that Barnett ' s alleged
insubordination had taken place in the summer-but admitted that lie could not be sure
of the year.
6. Specifically , the Respondent introduced evidence that Barnett had criticized Superin-
tendent O'Ware-and that he had said, on one occasion that he would be forced to quit
if Superintendent McNeil continued to ignore the need for a "change " in the shop. The
record establishes, however, that O'Ware and McNeil were not informed of Barnett's
alleged remarks until after his discharge.
99 The vicarious admission of Assistant Superintendent O'Ware, cited elsewhere in this
report , that Barnett bad been a good worker , that he had thought well of the carpenter,
and that the "office" had suggested his discharge, has not been denied ; it would seem to
dispose of the contention noted.
N. L. R. B. v. Illinois Tool Works, 153 F. 2d 811, 816 (C. A. 7) ; N. L. R. B. v.
Peter Cailler Kohler Swiss Chocolates Co., 130 F. 2d 503 (C. A. 2) ; Westinghouse Electric
Corporation , Ansonia Plant, 77 NLRB 1058; Atlantic Towing Company, 75 NLRB 1169.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to a discussion of the need for organization at the mill . As such, if made,
they were an integral part of the concerted activity which the statute is designed
to protect.
Since the knowledge of the assistant superintendent that Barnett was a union
supporter is chargeable to the Respondent, it must also be charged with knowl-
edge that the carpenter's participation in the dissemination of the " rumors"
involved him in the aforesaid concerted activity." And since the Respondent's
contention that the statements attributed to Barnett were "deliberate and
maliciously false" lacks support in the record, it follows, and the undersigned
finds, that the dismissal of the carpenter interfered with his right to engage in
permissible concerted action.
The permissible character of the activity is clear, as found, in spite of the
fact that the intentions attributed to the Respondent by the statements made
were not verified in advance-and in spite of the fact that they may have been
inaccurate 86 As the Board said in the Atlantic Towing case :
. . . the protection accorded by the statute to this form of concerted activity
and to those who engage in it against restraint and coercion on the part of
the employer, is in no way minimized by the fact that there occurs an
intentional or perhaps negligent misstatement of fact. As pointed out by
the Trial Examiner, truth is not always apparent, and men are influenced
in their conduct by rumors, by inferences from known facts, and even by
mere suspicion which may ultimately prove to be unfounded but which
the exigencies of the situation do not permit of vertification ; it would there-
fore, be decidedly unrealistic to hold that the organizational and concerted
activities envisaged by the Act exclude the utterance by employees of honestly
believed statements of fact or opinion, which, in some cases, may actually be
unfounded in fact. Nor would it be proper to hold further that such pro-
tection is forfeited where the statement suggests that the employer might
have engaged in unfair labor practice . . . we are satisfied that an em-
ployer's interest in an accurate representation of the facts to his employees
is generally subordinate to the conflicting interests of his employees in being
ea While the record, in the undersigned 's opinion , establishes the Respondent 's knowl-
edge that the statements attributed to Barnett were a part and parcel of the concerted
activity of the employees and not an independently malicious action, lack of such
knowledge would not constitute a defense to the discriminatory discharge of Barnett.
It is well settled that an employer who dismisses an employee without knowledge that
the conduct which led to the discharge constituted concerted activity is, nevertheless,
guilty of unfair labor practices . Home Beneficial Life Insurance Company v. N. L. it. B.,
159 F. 2d 280, 285, 286 (C. A. 4), cert. den. 332 U . S. 758 ; see also N. L. R. B. v.
-Perfect Circle Company, 162 F. 2d 566 , 569, 573 (C. A. 7) ; N. L. it. B. v. Austin Com-
pany, 165 F . 2d 592, 596 (C. A. 7) ; Allis-Chalmers Manufacturing Company v . N. L. it. B.,
162 F. 2d 435, 440 (C. A. 7).
66 The Respondent sought to elicit, from Union Organizer Brock, an admission that
the charges with respect to the dismissal of Barnett had not been filed in good faith.
The examination reveals an assumption on the part of counsel that, because Barnett
was the first person cited as a "discriminatory " dischargee , the Union must have been
aware that his charges of antecedent discrimination were false in fact.
With respect to this contention , it is sufficient to note that the good faith of the Union
in filing charges has consistently been held immaterial in unfair labor practice cases,
which are initiated by the complaint of a public agency, and which are invested with a
public character. In addition , the complaint in the instant case alleges , and the answer
admits, another discharge after the first election and before the discharge of Barnett;
the failure of the General Counsel to establish the discriminatory character of that
discharge certainly cannot militate against the possibility that Barnett erroneously, but
in good faith, considered it an example of the illegal activity to which his immediate
superior had referred.
EASTMAN COTTON MILLS, 63
free from interference in their utterance . . . of unintentional misstate-
ments. And an employer may not, in order to safeguard his interests,
invoke economic sanctions against an offending employee. To permit such
action would allow an employer to condition employment upon the relin
quishment by an employee of his right to engage in such lawful concerted
activities free from employer interference, censorship or control. The
illegality of such a qualification of the rights guaranteed by the Act is clear.
Employees , in short, do not forfeit the protection of the Act if, in discussing
matters of vital concern, they give currency to 'inaccurate or incomplete
information.
Accordingly, since the Respondent did, by its own admission discharge Barnett
because it believed him to be responsible for statements which, if made, were
entitled to statutory protection, his discharge necessarily tended to discourage
membership in the Union. The undersigned finds that the Respondent, by its
discharge of Barnett, discriminated in regard to his hire and tenure of employ-
ment, thereby discouraging membership in the Union, and interfering with,
restraining and coercing its employees in their exercise of the rights guaranteed
by the original Act and the Act as amended. Whether its action is viewed as
an unfair labor practice within the meaning of Section 8 (1) or (3) of the
original Act-or the coordinate sections of the Act as amended-the undersigned
concludes and finds that effectuation of the statutory policy requires remedial
action, as set forth elsewhere in this report.
b. Henry Sylvester Batts
The record establishes, and the undersigned has found, that Henry Sylvester
Batts was an active union adherent, and that the responsible officials of the
Respondent were aware of his interest in the organization. The Respondent,
however, contends that Batts was discharged because he had left his work station-
on a particular occasion, without permission, for an excessive period of time
and in spite of previous warnings about his repeated transgressions in that
respect. The General Counsel, to the contrary, charges that his absence on
the occasion in question was justified ; that he was not absent for an excessive
period of time; that he had given appropriate notice of his intention to absent
himself, to the person generally regarded as a proper recipient of that informa-
tion in the absence of a second hand; that he had never been censured for
similar conduct in the past; and that the action of the Respondent's overseer,
in short, was so obviously based upon a pretext as to warrant the inference that
Batts was, in fact, discharged because of his union activity.
The issue thus presented is primarily factual. With respect to the first
contention of the General Counsel, the undersigned has found that Batts left
his work, before be was discharged, to seek a "nail" to repair his trousers.
The Respondent offered no evidence to rebut the testimony of the dischargee
in this respect; the undersigned regards his action in leaving work, under the
circumstances, as justified. The length of time for which Batts was absent
is a matter of dispute. Wright admitted, in this case, that his conclusions in
that connection were based on an inference ; and the testimony of Batts, that
he had been instructed to let the machines "run down" in order to clean them,
stands, without effective contradiction, as a satisfactory explanation of the
fact which led the second hand to draw the inference in question. In the
81 Wright did testify, also, that he had received a complaint from a spinner to the effect
that she had been required to "tote" yarn for 30 minutes because Batts could not be
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
light of the entire record in this connection, therefore, the undersigned accepts
the testimony of Batts that lie was absent, on the occasion which led to his
discharge, for no more than 5 minutes.
The Respondent, in its brief, adverts to the fact that Batts was absent, at the
time of his discharge, without permission. This appears to be true; the under-
signed, however , does not regard it as significant . The Respondent maintains a
commissary or canteen at the mill, and the record indicates that it was open-at
the time of the discharge-for the employees on every shift. The admissions of
the Spinning Department overseer, and the credible and undenied testimony of
several witnesses, establish that the employees were allowed in practice, to visit
the commissary, the rest rooms or the water fountains without permission,
whenever they were "caught up" in their work-and the undersigned so finds.
The employees were permitted to smoke outside ; and there was no limitation
with respect to the time at which smoking was allowed. It follows, if Batts was
"caught up" in his work-as the undersigned has found-that the absence of a
grant of express permission for him to absent himself, under the circumstances,
cannot properly be relied upon by the Respondent to justify his discharge. The
undersigned, therefore, rejects the Respondent's contention that its action was
justified on this ground.
The Respondent, however, places its principal reliance upon the contention
that Batts had been found absent previously, "repeatedly and excessively" and
that he had been warned "three times " about this offense. The overseer of the
Spinning Department, for example, testified, with Wright's partial corrobora-
tion, that he had seen Batts sitting on the Machine Shop steps one afternoon,
about 11/2 weeks before the discharge, and that he had told the second hand to
get the employee back to work and to keep him there ; that the incident had
been repeated a few days later, at which time lie had censured Batts personally
and told Wright to keep the employee at work or to get him "off" the job alto-
gether; and that a repetition of the incident, 1 week later, had led him to instruct
the second hand to "run" Batts "off" the next time. Johnson identified the
occasion on which these instructions were given as the morning of the day on
which Batts was discharged. The corroborative testimony of Wright was offered,
then, to show that Batts had been located, away from his machine, twice on the
31st of October, and that he had been discharged on the second occasion.. Wright
testified that he had had to look for Batts, whose absence had been called to his
attention, and that the employee had been found outside, at which time he had
been told of his dismissal.
'Batts testified, however, that none of his superiors had ever censured or cau-
tioned him with respect to his work or previous absences. He did not deny that
lie had previously left his work, on occasion. While the testimony offered in the
found. Batts, however, testified in cross-examination that the statements attributed to
the spinner were first mentioned , in his presence , at the hearing on his unemployment
compensation appeal; and that Wright had later explained his testimony in that connec-
tion by saying that he had hated to give it, but that he was a "yes man" and had had to
do it . The second hand was not called upon to rebut this testimony ; the undersigned credits
Batts. Lonnie Couey, a fixer, also testified at the aforesaid unemployment compensation
appeal that Batts had been absent about 35 or 40 minutes , and that one of the "winders"
had been forced to stop for lack of yarn as a result . The record of the appeal indicates
that the procedure of the appeals referee was informal, and that Batts was not repre-
sented by-counsel, although the company was. A transcript of the record made in connec-
tion with the appeal was received , generally , in the instant case . However , in the absence
of an opportunity to assess the demeanor of Coney as a witness , the undersigned does not
regard the cold record of his testimony , under the circumstances , as sufficiently probative
to overcome the direct statements of Batts, an otherwise credible witness.
EASTMAN COTTON MILLS 65
name of the Respondent, in this connection, was accompanied by a considerable
amount of circumstantial detail, Batts impressed the undersigned as an honest,
sincere. witness. -Much of his testimony has not been contradicted; and the state-
ment that he gave the fixer notice of his intention to leave work, just before he
was discharged, is consistent with the fixer's testimony at the unemployment
compensation appeal. The testimony of Batts that he had never been previously
reprimanded, also, is consistent with the admitted liberality of the Respondent's
policy with respect to "absences" ordinarily. Upon the entire record and his
observation of the witnesses, the undersigned is satisfied that, if Batts was ever
recalled by a second hand-as Wright's testimony would indicate-the Respond-
ent never made an issue of his absence; the undersigned accordingly credits the
testimony of Batts that he had never been censured or cautioned in that
connection.
The rejection of the Respondent's contention that it had a valid "cause" for
the discharge of Batts does not, however, dispose of the issues raised with respect
to his dismissal. Even in the absence of testimony sufficiently probative to sup-
port the Respondent's contention, the General Counsel is not relieved of his
obligation to sustain the complaint by a preponderance of the evidence. On the
record, the undersigned is satisfied in this case, that the General Counsel has
sustained the burden of proof. The union activity of Batts has already been
noted, and the interest of the Respondent in that activity is clear. The Superin-
tendent, who testified generally that he merely "listened" to employees who
wished to discuss the Union, sought the opinion of Batts. A member of the
Respondent's Board of Directors, closely associated with President Smyly,
solicited his opinion with respect to the prospects of a union victory in the first
election, and sought to convey the idea, through him, to the employees, that the
Respondent might be persuaded to undertake the physical improvement of the
mill to allay any dissatisfaction with existing arrangements among its personnel.
The inference is clear that the Respondent, or certain of its responsible officials
at least, regarded Batts as a "key man" in its effort to encompass the defeat of
the Union in the first election. The evidence, summarized in this report, that
Johnson and Wright were actively engaged, after the election, in a search for
"causes" sufficient to justify the discharge of certain Union supporters lends
weight to the inference, in the absence of direct testimony, that a similar justifi-
cation was sought for the discharge of Batts. Johnson expressly admitted that
he has.not found it necessary to "run" people back to their jobs very often; he
could not recall sending Wright after anyone other than Batts. The second hand
testified that Batts was the only person he ever discharged. In the light of the
Respondent's generally liberal policy with respect to the use of the rest rooms,
the commissary or the water fountain and the right of employees to smoke out-
side of the mill, and in the absence of evidence that anyone else was ever dis-
missed or otherwise disciplined for an abuse of these privileges, the action of the
overseer in taking special note of the absence of Batts, in the period just before
his discharge, and in holding him strictly accountable for such absences, clearly
appears to be discriminatory. Direct evidence with respect to the motive for a
discriminatory action is usually difficult to obtain; however, in the absence of
evidence that others, less directly involved in the union campaign, were similarly
treated, the inference is warranted that Batts was dismissed because of his union
activity.
The undersigned concludes and finds that the Respondent, by discharging Henry
Sylvester Batts, discriminated against him with respect to his hire and tenure
903547-51-6
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of employment , to discourage membership in the Union , and thereby interfered
with , restrained , and coerced its employees in the exercise of the rights guaran-
teed by the Act.
c. G. Ben Williamson
The essential facts with respect to Williamson's discharge are not in dispute.
He was dismissed for undertaking to repair a broken machine part, at the
request of a fixer, without requiring the antecedent production of a written
order properly signed, allegedly in violation of a shop rule. The General
Counsel argues that Williamson was entrapped. In any event, the rule, it is
charged, was ambiguous; Williamson is said to have acted in conformity with
an acceptable interpretation of it. The General Counsel also argues that its
purpose, as established by the record, would be served by the required sub-
mission of a written order before the release of the repaired item as well as it
would be served by the purported requirement that it accompany the work to
be done. Williamson's conduct, therefore, it is said, did not violate the spirit
of the rule and did not render him unfit for further service. In short, it is
argued that Williamson was discharged because of his union activities, on
the basis of a manufactured pretext.
The Respondent, which denies the entrapment of Williamson, contends that
Williamson was discharged for a good, and sufficient cause and not because
of his union activity. The position of the Respondent, simply stated, is that
it had a right to promulgate reasonable rules and to enforce them ; that the
rule at issue was, and is, definite and reasonable ; that Williamson was aware
of the rule and knew that his conduct was in violation of it; and that he was
discharged when the violation was discovered.
The undersigned finds merit in the contentions of the General Counsel with
respect to the discriminatory character of Williamson's discharge. There is
evidence, undenied-which the undersigned has found to be credible-that
Williamson was entrapped in a violation of the rule , as the Respondent chose to
interpret it. That evidence, coupled with the credible testimony of Lloyd with
respect to Johnson's fixed intention to find a pretext for the discharge of the
machinist, establishes that Williamson was a victim of discrimination.
In addition, the undersigned is satisfied, in any event, that the rule, in prac-
tice, was not violated by the machinist. The record establishes, it is true, that
shop orders were supposed to be prepared by the overseer of the department for
which the work was to be done; and that O'Ware had, upon occasion, asked
Williamson and the other machinists to insist that an order accompany each
job brought to the shop. But it also establishes that "rush" work was brought
in, very often, with a mere promise that the order would follow-a practice of
which the assistant superintendent was aware, and which he usually condoned.
Williamson testified, credibly, that he understood the rule to require, at a mini-
mum, that no work be permitted to leave the shop until an order had been filed-
and that he and the other machinists frequently completed assignments while
awaiting a promised order-which they would request of the overseer if it
had not been tendered before the job was done.68 The machinist also testified,
and the undersigned finds, that O'Ware had never previously threatened to
88 The testimony of Williamson , in this connection , was corroborated by that of Shop
Foreman Stephens in cross-examination ; the latter testified that "shop orders" are often
signed by fixers, that such orders are sent back to the department in which they origi-
nated-for proper signature-and that the work involved is done while the persons involved
are "getting" the order in proper form. He also said that the maintenance men wrote up
EASTMAN COTTON MILLS 67
dismiss him for a failure to require the production of a "shop order" before
starting work. The evidence thus summarized establishes, to the satisfaction
of the undersigned, that Williamson's conduct, on the occasion that led to his
discharge, represented a permissible variation of conduct, in compliance with
the rule0°-and that it would not have been regarded as a justification for his
discharge, in the absence of an intention enjoined by the Act.
In reaching the conclusion that Williamson did not-in fact-violate the
Respondent's rule, the undersigned does not intend to imply that it lacked the
right to adopt and enforce a reasonable regulation with respect to the work
done in the shop-or that the regulation it promulgated, whatever its content,
was unreasonable. There can be no doubt, however, that the purpose of the
rule, as found, would be served by the production of the shop report after, as
well as before, the job was done.'° The undersigned, therefore, is satisfied,
and finds- in spite of the reasonableness of the rule-that Williamson's conduct,
even if it did involve a technical violation, did not involve one sufficiently flagrant
to warrant discharge.
The Respondent sought to establish that Williamson had acknowledged the
existence of a more rigorous "work order" rule-which required shop employees
not to begin repair jobs in the absence of a written order-at his unemploy-
ment compensation appeal. The undersigned has examined the record of that
appeal; in his opinion, the testimony on which the Respondent relies is not
sufficiently clear to establish an admission by the machinist, in the light of
the record made in the instant case. For this and other reasons, previously
noted, the undersigned is unable to find that Williamson deliberately violated
the rule.
In any event, as noted, the undersigned is satisfied that the Respondent desired
the termination of Williamson ; that it wished, at bottom, to dismiss him because
of his interest and participation in the Union's renewed organizational cam-
their own "orders" in connection with major breakdowns, which required them to work
out in the plant.
Stephens testified, in addition, that a breakdown which affected certain machinery vital
to the continued operation of the mill, would be dealt with at once ; in such an emergency,
it was indicated, the responsible maintenance man would "ask" for the order first, but
would proceed at once to repair the machine even if it, the order, was not available. The
foreman described these situations as "exceptions" to the rule.
89 Cf. Dixie Shirt Company, Inc., 79 NLRB 127, enf'd 176 F. 2d 969 (C. A. 4).
7° Williamson testified, and the undersigned finds, that the purpose of the rule was to
permit Assistant Superintendent O'Ware to check on the amount of work being done in the
shop. When called as a witness at Williamson's unemployment compensation appeal,
O'Ware himself described the rule as follows : "We require all the mechanics to have a
work order in order to keep track of the jobs."
Superintendent McNeil described the rule, also, at the outset, as one intended to let the
shop "keep up" with the quantity of the "material" from each department, thus enabling
its employees to "allot" their time efficiently, and secondarily, as a rule intended to con-
fine the shop employees to work directly related to the needs of the mill. Only when
prompted by counsel did he add that the orders enabled the Respondent's purchasing
agent to know what "material" to buy; that they made it possible to check the quality
of the "material" purchased; and that they enabled supervisors to determine the parts of
any given machine that were subject to breakage most often.
In spite of the extensive utility thus indicated for "shop orders," McNeil testified that
they were filed "on the wall" in the shop ; that they were reviewed periodically by O'Ware
to see "what department was using the shop for repair work" ; and that they were dis-
carded, presumably thereafter. Stephens admitted that he did not prepare purchase
orders on the basis of any shop record; he testified that all of the shop materials were
purchased by the employees of the "supply" room. And McNeil admitted, in response
to a question of the Trial Examiner, that he did not think the orders went to any other
department, saying that there would not be "much particular use" for them outside of the
shop.
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paign ; and that it set the stage and manufactured the pretext . by which it
sought to justify his discharge . Upon the entire record-including without
limitation , the testimony that Johnson intended to seek an excuse for the
discharge of the . machinist, the testimony with respect to the formulation of
the plan to entrap him ; the undenied testiniony of Williamson with respect
to the promptness with which O'Ware apprehended him; and the subsequent
vicarious admission of the assistant superintendent that Williamson had been
dismissed because he " talked" too much and because of his interest in the Union,
the undersigned finds that the machinist was discriminatorl y discharged to
discourage membership in the organization , and that the action of the Re-
spondent in this connection interfered with, restrained , and coerced its employees
in their enjoyment of the rights guaranteed by the Act.
d. Otis C. Batts
In its brief, the Respondent alleges that this employee was discharged "after
repeated warnings and careful instructions . . . for refusal to follow those
instructions, and for arrant carelessness in destruction of Respondent's prop-
erty." The General Counsel argues that Batts was in fact discharged because
of his union activity, and that the incident which the Respondent relies upon
to justify its action was merely a pretext, calculated to disguise its actual,
antiunion motive.
The propriety of the Respondent's action in holding Batts responsible for the
fluorescent light breakage, therefore-under the circumstances revealed by the
record-was vigorously contested. The Respondent contended that the oiler had
deliberately "flipped" out the lights ; in the alternative, its position was that
Batts had previously been warned about his carelessness in connection with the
assignment and had nevertheless been guilty of such gross negligence in the
manipulation of the air-hose as to justify the reaction of Johnson, who discharged
him. Johnson testified, for example, that his attention had been called to the
excessive rate of fluorescent bulb breakage ; that he had noticed Batts hit lights
with the hose while "blowing down" lint; that he had seen the oiler break bulbs
twice, by this procedure, before the day on which he was discharged ; that he
had sent a second hand to warn Batts on both occasions ; and that he had warned
Batts personally not to hit the bulbs, on the second occasion.
The General Counsel sought to establish, on the other hand, that the lights were
not locked in place ; that they were occasionally displaced and broken by the
vibration of the mill ; that others responsible for "blowing down" cotton lint
had broken a "few" lights without being warned or subjected to discharge ; that
the instructions allegedly given Batts with respect to the manner in which the
hose ought to be handled had not, in fact, been communicated to him or to anyone
else; and that breakage of the type attributed to Batts was generally regarded as
an unavoidable hazard. Batts testified in this connection; for example, that he
had found it difficult to prevent the hose from swaying when the air pressure
was on, and that the air blast usually caused the fixture, against which it was
directed, to swing; he denied categorically that he had ever struck the fixture
with the hose nozzle deliberately,71 and insisted that he had never received
instructions with respect to this assignment or been warned about light breakage.
71 The Respondent offered the record of the oiler's unemployment compensation appeal to
establish his admission on that occasion, that he had "laid" the hose on the fixture, and
Batts admitted that he might have done so on occasion, while "blowing off" the fixture
wires and shades.
EAS1 MAN• COTTON MILLS 69
In view of the oiler's admissioin that some lights which he had "blown down"
had fallen, in the past, the significant conflicts with respect to his discharge are to
be found in the contradictory evidence available about the previous instructions
given him, and the censure to which he was subjected, if any. In this connection;
the undersigned has accepted the testimony of Batts. The corroborative testi-
mony of Lloyd-which the undersigned finds, in the main, to be credible-indi-
cates that similar light breakage occurred, at times, on other shifts, and that it
was not uncommon elsewhere in the mill ; there is no evidence, however, that
others responsible for breakage were ever disciplined or discharged: While the
undersigned, therefore, is satisfied that the experience of Batts in this respect
certainly ought to have suggested to the oiler the advisability of additional
caution in the performance of the particular task, he is also satisfied that Batts
was never advised, before discharge, that the Respondent took a serious view
of breakage, and that he received no instructions with respect to a variation
in the procedure he employed.
Any attempt to assess the motives which actually led to his discharge must
take into account the undenied fact that he had just been asked to resume
"blowing down" at 3 p. in., an hour at which both Second Hand Wright and
Overseer Johnson would normally be present to observe his work. No other,
logical, reason for this reversion to past practice has been suggested. It is,
perhaps, conceivable that Johnson, a relative newcomer in the Respondent's
employ, was so upset by the accidents attributable to Batts that he dismissed the
oiler in a fit of indignation. It is also conceivable however, as the General Coun-
sel's witnesses implied, that Johnson and the supervisory staff of the mill regarded
light breakage as a normal operational hazard, and that the critical attitude of
the overseer was an assumed one. ' On balance, as noted, and after observing
the witnesses, the undersigned finds the latter inference warranted. It is, how-
ever, unnecessary to bottom a conclusion with respect to the dismissal of Batts
entirely on speculation with respect to the subjective attitude of the overseer.
'Specifically, after accepting the testimony of Lloyd, which establishes that John-
son had expressed a fixed intention to dismiss the oiler because of his union
activity, the undersigned finds it unnecessary to consider whether Johnson's
action-considered in isolation-was so unjustified and arbitrary as to warrant
an "inference" that it was discriminatorily motivated. The existence of the
forbidden motive is clear. And upon the record, the undersigned is convinced
that the negligence of Batts-which also seems clear-was not in fact regarded
as sufficiently gross, in the light of past practice, to provide an overriding,
independent motivation for the action of the overseer.
Upon the entire record, therefore, the undersigned concludes, and finds that
Otis Batts was in fact dismissed, discriminatorily, because of his activities as a
union supporter; that the action of the Respondent had the necessary and in-
tended effect of discouraging membership in that organization ; and that the
Respondent thereby interfered with, restrained, and coerced its employees in the
exercise of the rights which the Act guarantees.
e. Obie Dyle Coleman
The issue with respect to the dismissal of Coleman may be simply stated : Was
he discharged because of a refusal to perform a task incidental to his regular
employment, or because of a dispute with his superior which the latter welcomed
and aggravated in order that the Respondent might utilize it as a pretext for
his discharge?
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned has found, elsewhere in this report, that the dispute which
lead to Coleman's discharge began before the doffer was confronted with the
immediate necessity of doffing the "tangled" frame. In the light of the record
and the demeanor of the witnesses who gave relevant testimony, the undersigned
found that Coleman had not refused to doff the frame ; his version of the dispute
has been accepted. In cross-examination of the doffer, the Respondent sought
to suggest that Coleman had set the tone of the discussion which preceded his
discharge by asking Wright a question which reflected on the good faith of the
company. While the question may have been unnecessary in the light of the
Respondent's established payroll practice, the undersigned does not consider it
truculent to a degree sufficient to warrant the conclusion that it amounted to
insubordination. And while the record will not support a conclusion that the
second hand's part in the argument was coldly calculated to badger the doffer
into a position which merited discharge, the undersigned is satisfied that Wright,
in the light of his previously declared intentions with respect to the separation of
Coleman, welcomed the dispute. He made no effort to mollify the doffer, but
suggested his resignation instead; when this suggestion was not accepted, he
utilized the dispute as an excuse to suggest Coleman's discharge.
The undersigned is satisfied that Johnson was, in fact, informed that Coleman
had refused to "run" his job; without attempting to determine whether Johnson
knew this statement to be false, the undersigned finds that it was denied by
Coleman and that Johnson, nevertheless, made no independent investigation.
Upon the entire record, therefore, the undersigned finds that Wright's knowledge
of the falsity of the charge was imputable to Johnson and the Respondent ; that
Wright's determination to find an excuse for the dismissal of Coleman because
of his Union activity reflected a similar determination on the part of the over-
seer, or, in the alternative, was imputable to him; and that Coleman was in fact
discharged, discriminatorily, to discourage membership in the Union and to inter-
fere with, restrain, and coerce the Respondent's employees in their exercise of
the rights defined in the Act.
f. Hayward G. Lloyd
The General Counsel argues that Lloyd was dismissed because of his suspected
sympathy for the Union, and because of his refusal to participate in the Respond-
ent's antiunion campaign. The Respondent, however, contends that he was dis-
charged simply because he lacked the necessary competence to continue as a
supervisor.
Superintendent McNeil, for the Respondent, testified that Johnson shortly
after his appointment as an overseer, had reported that Lloyd was not, in his
opinion, a competent second hand because he did not "know" his job. The over-
seer, according to McNeil, referred to "reports" that Lloyd had never been a
card grinder, and expressed the "opinion" that he would never be able to instruct
others in this work;' Johnson, McNeil said, conceded only that Lloyd would
make a good slubber hand.73 .
72 The responsibilities of a card grinder include the repair and maintenance of the
opening room machines, the pickers, and the carding machinery. His principal func-
tion, however, Is to "grind" or sharpen the wire blades on the carding equipment ; be-
cause of the complexity of this equipment and the high speed at which certain parts
of it are required to operate, card grinding is generally regarded as a highly important
task, requiring a high degree of care and skill. Johnson, according to McNeil, insisted
that Lloyd was unable to do this work, to Instruct card grinders, or to check the
quality of their performance. '
73 When he was asked- to describe the qualifications of a second hand, McNeil cited
his need for knowledge of the machinery with which he Is required to work, and his
EASTMAN COTTON MILLS 71
The overseer, a man of considerable experience in textile mills, confirmed the
"hearsay" testimony of McNeil as to his opinion of Lloyd. He testified that he
had discharged the man-at the time of his employment as a second hand-be-
cause he lacked the capacity to "run" his job; he said that he had done so after
"some sixty days" of observation, in the course of which he had determined, in
the light of his own specialized experience, that Lloyd knew "nothing" about the
job except the things that an ordinary employee would know. Johnson added
that Lloyd was unable to "get along" with the group he supervised ; he based
this statement, the record reveals, upon the "complaints" of several slubber hands
that Lloyd took up the time of the spare hand assigned to the slubbers and inter-
fered with her performance of the tasks for which she was responsible."
The evidence offered by the Respondent would seem to establish, however, that
Lloyd was not dismissed until the overseer's alleged dissatisfaction with him
became crystallized by an incident. The Respondent's version of that incident
is set forth in the record. On the night before Lloyd's discharge, Johnson-ac-
cording to his testimony-received a telephone call at home; he was advised,
anonymously, to "come down" and look at "the office" if he wanted to "catch"
something. He did so. His testimony, in substance, was that Lloyd and the
slubber spare hand were in the card room "office" eating ice cream together ; that
he asked Lloyd if that was all he had to do; that he, Johnson, went home after
the spare hand left the room ; and that Lloyd was "paid up" on the following
day."
Upon the entire record, the undersigned is impelled to reject this version of
Lloyd's discharge and to accept the testimony of the second hand. The testi-
mony of Superintendent McNeil with respect to Lloyd's ability, as noted, was
hearsay; he could not fix the date of his detailed conversation with Johnson
about the second hand, except to say that it was "shortly" after the initial
employment of the overseer. In detailing the comments of Johnson, McNeil
expressly admitted that he had no personal knowledge of Lloyd's capacities and
abilities, and that his information was derived, entirely, from the reports of the
overseer. Johnson, however, was himself unable to cite any situation in which
Lloyd had demonstrated a lack of ability ; and he admitted that he had never
discussed Lloyd's previous work with Assistant Superintendent O'Ware. In
cross-examination, when asked for specific details, he could only say that Lloyd's
lack of capacity had become apparent to him in the course of his "general"
observations and that he had found Lloyd "generally" unsatisfactory.
While there can be no doubt that an ideal second hand ought to possess, and
might well claim, the experience and capacities listed by the overseer and the
superintendent, the present record will not support an inference that the
experience and capacities noted were a prerequisite of such employment.
O'Ware, who was presumably familiar with Lloyd's limitations, nominated him
for promotion ; McNeil, who certainly could not plead ignorance of them, approved
his elevation. In the absence of specific evidence to establish that Lloyd's per-
need of ability to instruct others in the performance of their assigned duties. Specifically,
with reference to the card room-in response to leading questions-he stated that it
was necessary for a good second hand to know how to grind cards and how to instruct
card grinders with respect to their work, how to fix pickers and how to instruct picker
fixers with respect to the repair of these machines, and how to instruct "slubber tenders"
and "draw hands " in the performance of their duties.
741n cross -examination , Johnson could name only one slubber hand as a complainant;
this individual is identified , in the record , as an opponent of the Union.
7s The overseer , anticipating a question , categorically denied that he had been looking
for a reason to discharge Lloyd.
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
formance was sufficiently poor to warrant discharge, the undersigned finds no
merit in the contention that his lack of competence played a part in the decision
to terminate his employment.
Lloyd was not confronted, in cross-examination, with the charge that he had
interfered with the work of the spare hand assigned to the slubbers. The under-
signed, therefore, was deprived of the opportunity to assess his reaction to it.
Upon the entire record, however, and the general impressions of the undersigned
as to the credibility of Lloyd and the Respondent's witnesses, the undersigned
is inclined to reject the testimony of the latter that he had interfered with the
work of those under his supervision, or that he was dismissed because of John-
son's discovery that he had been eating ice cream in the company of an employee
who should have been at work. There is no evidence of the extent to which
Lloyd's action interfered with production, if it did so at all ; in view of the
Respondent's established liberality with respect to employee privileges, the
captiousness of the overseer on this occasion-if he made it evident at all-
must be regarded as suspect. Even if Johnson's recital in this respect be
accepted as true, it is noteworthy that his discovery was made as the result of
action based upon the suggestion of an anonymous informer who was, apparently,
sufficiently aware of Johnson's attitude with respect to Lloyd to assume that
the former might wish to "catch" the latter in some dereliction of duty. John-
son's testimony indicates that he responded without asking for details; and with
a promptitude which belies the statement that he had not been looking for a
"reason" to discharge the second hand. The fact that Lloyd was dismissed with-
out warning, after 22 years of service, serves only to strengthen the impression,
suggested by all of the facts, that Johnson's discovery, if it was relied upon at
all, was relied upon as a pretext.
The undersigned, therefore, concludes and finds-without deciding whether
or not the incident related by the superintendent did in fact occur-that Lloyd
was in fact dismissed, as his testimony establishes, because the overseer believed
him responsible for the dissemination of "confidential" information with respect
to the Respondent's search for an "excuse" to justify the discharge of Eb Jones-
and because the overseer believed, on the basis of a "report," that Lloyd had
advised a production employee to vote for the union in the next election."
Lloyd's testimony establishes that he made no attempt to deny the statements of
the overseer, at the time.
The Respondent has sought to negate the inference that Lloyd was discharged
for the "reasons" thus attributable to the overseer; it has referred in its brief
to the fact that Lloyd expressed opposition to the Union in his conversations with
O'Ware, and to the further fact he was subsequently rehired as a slubber spare
hand. The record, in the opinion of the undersigned, will not support the infer-
ences suggested. Lloyd's remarks in the company of the assistant superintendent
were equivocal; his later statement to Curtis Coleman-whose knowledge of it
is clearly imputable to the other officials of the Respondent-was not. And the
further fact that Lloyd was not rehired until President Smyly was satisfied-
first, that he had not taken a position adverse to that of the Respondent in
connection with the unemployment compensation claims of the other dischargees,
and secondly, that he had not been a member of the union at another mill, merely
76 To the extent that the "report" of Lloyd's prounion activity played a part in John-
son's decision to discharge him, it seems clear on the basis of the second hand's'testi-
mony that the Respondent was not being critical of his unneutral attitude ; and that
Johnson found Lloyd's conduct objectionable only because he had spoken in favor of the
union, rather than in opposition to it. The undersigned so finds.
EASTMAN COTTON MILLS) 73
emphasizes , in opposition to the Respondent 's contention , its antecedent concern
about his attitude with respect to the unionization of its employees.
Before he Act was amended, the law was settled that the dismissal of a
supervisor who refused to participate in the unfair labor practices of an employer
constituted discrimination with respect to his hire and tenure of employment,
reasonably calculated to discourage membership in the union involved and to
interfere with , restrain , and coerce employees in the exercise of rights guaranteed
by the Act." Since Lloyd's discharge occurred before the effective date of the
amended Act, similar conclusions of law with respect to the alleged violation of
the original Act, in his case , are appropriate . Under the Act as amended, how-
ever , the continued failure and refusal of the Respondent to reinstate Lloyd as a
second hand clearly cannot be characterized as a discrimination in regard to
his hire or the tenure of his employment , since individuals with supervisory
authority are, by definition , now denied the protection given , under the statute,
to employees . It does not follow, however, that the Respondent's adverse action
with respect to his employment can be said to have had no effect on its non-
supervisory employees . When , as in this case, the necessary and intended effect
of an employer 's action is to punish a failure on the part of a supervisor, how-
ever motivated , to participate in, or to cloak with secrecy, the efforts of the
employer to discriminate against nonsupervisory employees , its action is reason-
ably calculated to interefere with , restrain , and coerce these employees in the
exercise of the rights guaranteed by the statute .." The undersigned , therefore,
finds that , by the discharge of Hayward G. Lloyd, the Respondent discriminated
against him in regard to the hire and tenure of his employment and interfered
with, restrained , and coerced its employees , within the meaning of the original
Act-and that by its continued failure or refusal to reinstate Lloyd to his
supervisory position , since the effective date of the amended Act, for the reasons
herein found , the Respondent has continued to interfere with, restrain, and
coerce its employees in the exercise of the rights the statute still guarantees.
g. Robert Emory Dixon
The facts with respect to the discharge of Dixon are not in dispute. On the
record made , the Respondent contends that Dixon was relieved of his regular
assignment to make way for a veteran , Whittle, with a prior claim to it based
upon the Selective Service Act ; that he refused to take other available work ; and
he, in effect, resigned . And the General Counsel , eschewing any contention that
the Respondent violated the Selective Service Act in the case of Dixon, when it
reinstated Whittle, argues that Dixon was selected for displacement and offered
spare work thereafter , not because of any necessity therefor , but because of his
union affiliation . The contention of the General Counsel , in sum, is that the
required reinstatement of Whittle did not, of itself, require the relegation of
Dixon to spare work, and that the Respondent 's failure to offer the latter alterna-
tive regular employment constituted a violation of the Act.
A resolution of the issue thus presented requires consideration of the Respond-
ent's policy with respect to seniority , since Dixon 's lack of it was relied upon
to justify the Respondent's decision that he ought to be deprived of regular
77 Vail Mfg. Co., 61 NLRB 181 , enf'd. 158 F. 2d 664 ( C. A. 7), cert . den. 331 U . S. 835;
N. L. R. B . v. Richter's Bakery, 140 F . 2d 870, 872-73 ( C. A. 5), cert. den . 322 U. S. 754;
Eagle-Picher Mining d. Smelting Co. v. N . L. R. B., 119 F. 2d 903, 912-13 (C. A. 8 ) ; Cros-
sett Lumber Co., 8 NLRB 440 , 466-67; Ronrico Corp., 53 NLRB 1137, 1169 ; Reliance Mfg.
Co., 60 NLRB 946, 950-52, 963-64.
78 Cf. Wells, Inc., 68 NLRB 545, 546-47, enf 'd. as modified 162 F. 2d 457 ( C. A. 9).
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment. Superintendent McNeil testified, and the undersigned finds, that
the Respondent did have a seniority policy, which it regularly applied in the
selection of employees for layoff or dismissal. The record also establishes that
it was the policy of the Respondent to compute seniority, except as modified by
he requirements of the Selective Service Act, on the basis of continuous service.
Dixon, it is argued, was selected for layoff in conformity with this policy.
A study of the Respondent's personnel records, summarized in evidence, reveals -
that 32 doffers, regular and spare, were in the employ of the Respondent on the
day Dixon was displaced. Of this number, 10 had less seniority than Dixon
on the basis of continuous service ; 7 of these were regularly employed and 3 were
spares. Between 1940 and 1947, the record reveals, 18 doffers with Army or
Navy service sought reinstatement at the mill ; 8 of these were reemployed as
spare hands, 5 received regular employment. The status of the other 5 doffers,
after their return, is not clear. Information with respect to the employment
history of the regular doffers who were displaced by the reinstated veterans is
available in 3 cases only; in every case, including that of Dixon, the displaced
doffer was relegated to spare work. None are shown to have bumped other
regular employees with less seniority.
A study of the record thus reveals that it was within the Respondent's discre-
tion , as revealed by its practice, to reinstate veterans to spare work or regular
work." Whittle was reinstated as a regular doffer. In view of the Respondent's
similar practice in other cases, the undersigned is unable to find that its action
with respect to Whittle was directed, discriminatorily, at Dixon 80 The record
also reveals that it was within the company's discretion, as revealed by its prac-
tice, to relegate regular doffers "bumped" by veterans to spare work or to allow
them to "bump" other men with less seniority in turn. In the only other cases
of a similar nature discussed in the record, the regular doffers displaced received
treatment similar to that of Dixon ; they were relegated to spare work.
Whatever may be said, therefore, with respect to the consistency of the Re-
spondent's seniority policy, or its abstract justice, it seems clear, under the
circumstances, that the Respondent's treatment of the Dixon-Whittle problem
was not differentiated from its practice in other, similar, cases, sufficiently to
warrant the conclusion that it was discriminatory as to Dixon. Upon the entire
record, in short-and even if it be conceded that the Respondent lacked moral
justification for its action in regarding Dixon's temporary separation in 1944-45
as a break in service, or in selecting him for displacement to achieve a "literal"
compliance with the Selective Service Act in the case of Whittle-the undersigned
finds that the General Counsel has failed to sustain the burden of proof that
Dixon's displacement as a regular doffer was discriminatory.
A further question remains : Was the failure of the Respondent to give Dixon
spare work after his displacement as a regular doffer discriminatorily motivated
by its knowledge of his interest in the Union? The Respondent sought to estab-
lish that Dixon never reported for spare work-or that he did so, if at all, on a
relatively small number of occasions. The undersigned has rejected this testi-
mony. It does not follow, however, that Dixon's inability to achieve an assign-
m' The undersigned is not required to find whether the assignment of a veteran to "spare"
work constituted compliance with the Respondent's statutory obligation.
80 While-it is arguable that the Respondent, in conformity with its seniority policy, ought
to have assigned Whittle to a job then held by'one of the seven other regular doffers with
less seniority than Dixon, the undersigned is unable to say that the, Respondent acted
discriminatorily when it reassigned Whittle, regardless of seniority , to the very job he had
previously held.
'EASTMAN COTTON MILLS o 75
ment was the result of discrimination on the part of the supervisory personnel
responsible for the employment of spare hands. Superintendent McNeil, it is
true, gave somewhat inconsistent testimony in regard to the Respondent's policy
in this connection. He indicated, at first, that the most recent recruit in spare
work would normally be the last one hired, regardless of his prior service at the
mill, if any, as a full-time employee. Later, he testified that it was the policy
of the mill to select the "best qualified" man among the available spare hands
on particular days, and that the amount of prior experience an applicant for
spare work possessed would only be considered in evaluating his qualifications.
In redirect examination, also, he stated categorically that spare hands had no
seniority, because they had no job. Whatever the fact, the record does not show
that Dixon would have been entitled to employment as a spare hand under either
policy, during the period in which he sought spare work, in the absence of dis-
crimination. The undersigned is therefore constrained to find that the Re-
spondent's treatment of Dixon has not been shown to involve discrimination with
respect to his hire and tenure of employment or the terms and conditions of his
employment, to discourage membership in the Union.
2. Interference, restraint, and coercion
Before the first election, as noted, several of the Respondent's responsible
officials interrogated employees as to their opinion of the Union, and its "chances"
in the election. Under the Act, it may now be taken as datum that questions
calculated to elicit information with respect to the attitude of the employees to
a Union represent illegal invasion of an area of activity in which employees are
entitled to full freedom from employer interference TM A similar conclusion
would seem to be inevitable in this case-and the undersigned so finds. With
respect to the coincidental interrogation, established by the record, designed to
elicit employee "opinion" with respect to the anticipated outcome of the election,
it seems patent, and the undersigned finds, that such interrogation was reason-
ably calculated to elicit, indirectly, information in regard to the intentions of
the employees questioned with respect to the election, and information with re-
spect to the strength of the Union and the effectiveness of its campaign. So
construed, it cannot be dismissed as a mere indication of "legitimate" curiosity
on the part of the Respondent's supervisory staff. As the board said in the recent
Standard-Coosa-Thatcher case : '2
Interrogation by an employer not only invades the employee's privacy and
thus constitutes interference with his enjoyment of the rights guaranteed
to him by the Act. Its effect on the questioned employee, like that of open
surveillance of union activities, is to "restrain" or to "coerce" the employee
in the exercise of those rights. The employee who is interrogated concern-
ing matters which are his sole concern is reasonably led to believe that his
employer not only wants information on the nature and extent of his union
interest and activities but also contemplates some form of reprisal, once the
information is obtained.
The undersigned accordingly finds that Assistant Superintendent O'Ware's inter-
rogation of Barnett-which included an inquiry as to how he intended to vote-
the interrogation of Stephens in similar fashion , the interrogation of Henry
81 Sewell Manufacturing Co., 72 NLRB 85, enf'd as modified (on other grounds) 172 F.
2d 459 (C. A. 5) ; N. L. R. B. v. A. S. Abell Co., 97 F. 2d 951, 955-56 (C. A. 4), cited with
approval in Virginia Electric d Power Co., et al. v. N. L. R. B., 115 F. 2d 414, 423 (C. A. 4).
82 Standard -Coosa-Thatcher Company, 85 NLRB 1358, issued September 19, 1949.
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sylvester Batts by Superintendent McNeil, and the interrogation of Batts, again,
by Director Ragan, were reasonably calculated to, and did , interfere with, re-
strain, and coerce these individuals, and others, in the exercise of their right to
engage in concerted activity."
The Respondent contends that it cannot be held responsible for the actions of
Ragan; it argues that his status as its director , alone, is insufficient to justify
an imputation of liability to it. In this connection , Respondent 's counsel-by
a set of "hypothetical" leading questions-elicited testimony from Ragan that
small town bankers generally regard themselves as "servants " of the public and
find it "good banking business" to accommodate people who request a service of
them, however unusual it may be. Ragan also testified that it is considered
"good banking" to evaluate the effect of any given set of events on the economy
of the community as a whole , because the success of a bank is dependent upon
the success of its business customers . In conformity with this view , he expressed
the opinion that a banker with "decided" views on the "dangers" to be antici-
pated in the wake of a successful organizational campaign would be "justified" in
taking a personal interest in the matter , because of the effects it might have on
his business as a banker . The director denied that he had ever had the authority
to act for the mill or in the name of its.president.
The undersigned finds the Respondent 's contention to be without merit ; Ragan's
own testimony reveals that he played a principal part in the settlement of
grievances which led to a short-lived strike within a day or two after VE Day.
His testimony that he was motivated , on that occasion , by a personal selfish
interest and concern for the welfare of the community must be regarded as an
afterthought . It was elicited , also, by leading questions ; the undersigned finds
it insufficiently probative, therefore, to rebut the equally valid inference that
his actions were motivated by concern about its possible effects on his investment
in the Respondent 's mill. In any event , Ragan's dual capacities as a director of
the Respondent and local banker cannot be considered so readily severable as
to warrant the inference suggested by the :Respondent 's counsel , and the under-
signed so finds. Ragan ' s status as a director of the Respondent was a matter
of common knowledge ; in the light of that common , knowledge , his previous par-
ticipation In the adjustment of grievances at the mill suggests that his right to
speak for the Respondent in personnel matters was known, or readily inferable,
by the mill employees. On the record , therefore , the. undersigned finds the Re-
spondent responsible for the conduct , attributable to Ragan , cited in this report
and characterized as an unfair labor practice. B4
- 58 Ragan's questions as to, the sources of employee dissatisfaction, and his promise to
suggest the physical improvement of the mill , were not framed to imply that the physical
improvement of the mill was contingent upon the rejection of the Union by the employees
in the election . While they may have been calculated to persuade the employees that union
representation was unnecessary , the undersigned does not find the remarks of Ragan in this
connection to be "views, argument or opinion" so closely related to a promise of benefit as
.to involve an unfair labor . practice.
Batts testified that McNeil and Ragan both stated that President Smyly would close the
mill if the Union Won representative status . His testimony stands without corroboration.
While the undersigned has found him- generally credible, the comment he thus attributes
to the superintendent and the director is so out of character , when seen in the context of
their other remarks , that the undersigned is constrained to find his memory in error, on this
point.
84 Caroline Mills, 64 NLRB 376, enforcement denied on other grounds, 158 F. 2d 973
C. A. 5) ; cf . International Ass'n of Machinists v. N. L. R . B., 311 U. S . 72 ; H. J. Heinz
Co. V. N. L. R. B., 311 U. S. 514; Birmingham Post Co. v. N. L. R. B., 140 F. 2d 638, 639-640
(C. A..5).
EASTMAN COTTON MILLS 77
At the outset of the union campaign, Assistant Superintendent O'Ware, accom-
panied by Lloyd, engaged in surveillance of the Union's first open meeting. Later,
as the record reveals, the assistant superintendent questioned Barnett with re-
spect to his intended course of action in the election. By this surveillance and
interrogation, it is clear, the assistant superintendent engaged in further unfair
labor practices.
Before the election also, as noted, O'Ware invited Barnett to participate in a
betting pool, which would require him to guess the number of votes to be cast in
favor of Union representation in the election; the evidence, which has not been
denied, establishes that a company timekeeper kept the record of all bets made.
It seems obvious that the Respondent, by this device, was able to determine, indi-
rectly, the attitude of the participants in the pool with respect to the Union; and
their estimates as to its strength. The undersigned finds that by this device,
and by the action of Assistant Superintendent O'Ware in soliciting the partici-
pation of Barnett, the Respondent again interfered with, restrained, and coerced
its employees.
After the first election, as noted, the assistant superintendent told Barnett and
Williamson of the Respondent's "stretch-out" policy and of prospective layoffs
and discriminatory discharges in derogation of the Respondent's alleged pre-
election promises. The undersigned has found the record barren, of substantial
evidence in support of these allegations. Their truth, however, is immaterial;
when they were communicated to the carpenter and the machinist with all the
weight of the assistant superintendent's authority, and in the light of his sup-
posedly superior knowledge, it is reasonably inferred that Barnett, Williamson,
and other employees were, as a matter of law, deprived of the complete freedom
of choice they were entitled to enjoy in the exercise of the rights guaranteed by the
Act. The undersigned so finds.
The record establishes, also, that the Respondent, before each election, made
an explicit, direct effort to determine the strength of the sentiment in favor of
the Union among the employees, in addition to the effort already noted. Superin-
tendent McNeil and Overseer Johnson, who freely admitted their participation
in that effort, insisted-in response to leading questions-that it was not an
object of their survey to identify the individual supporters of the Union; that
the Respondent and its officials were interested only in the "probable results" of
the election ; and that they sought, therefore, to "check" the situation from a
"numerical standpoint" only. The testimony of Superintendent McNeil in this
connection, however, reads as follows :
Q. Did you take the payroll and break it down?
A. We took the payroll but we didn't break it down. We discussed them,
but we didn't make any figures on them.
Q. Did you discuss the employees, one by one, sir?
A. Yes, sir.
Q. Did you break the payrolls down, Mr. McNeil?
A. Well, what do you mean by breaking them down? We discussed them
if that is what you mean. Yes, we discussed them thoroughly.
es The Respondent, understandably, did not offer O'Ware as a witness to rebut the testi-
mony of Barnett, Williamson, and the corroborative testimony of Lloyd, in this connection.
And the very testimony McNeil offered to explain the absence of the assistant superin-
tendent-the fact of his dismissal in September 1947, because of his absence from work,
without notice, as the result of a drinking bout-serves to establish his character as one
who might well have made the revealing statements which various witnesses attributed
to him.
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Did you discuss each employee?
A. That is right.
a * s s * e *
Q. What did you seek to find out by going down this payroll, Mr . McNeil?
A. Well , we wanted to know, as far as we could , through own own observa-
tion and what they told us , how the people felt about it. That is what we
wanted to know.
Q. How often did you do that, sir?
A. We did it quite often . I wouldn 't say how many times, I couldn't tell
you at all.
Q. You knew pretty well how the election was going to come out before
you ever had it, didn 't you , Mr. McNeil?
A. Well, we had a pretty good idea. That is what they told us.
Q. Is that true of both elections?
A. True of both elections.
* * * * * * *
Q. In checking these payrolls , you participated as fully as anybody in
determining what employees were for the union and those that were against
it, did you not?
A. That is right.
* * * * * * *
Q. Now, if Curtis Coleman or Mr. O'Ware said a certain person was in
favor of the union , you wouldn 't know where he got that information, would
you?
A. No. . . . I would just assume they got it like I did, when they came and
asked you about these questions and tell you things.
Q. You assumed that, but you didn't know exactly where they did get the
information . Is that correct, sir?
A. That is right.
The testimony of Lloyd with respect to Johnson's interest in the "work " of cer-
tain employees and their attitude with respect to the union supports the con-
clusion, suggested by the testimony of McNeil , that the Respondent 's interest in
the extent to which its employees had chosen to engage in union organization
or other concerted activities , was purposive . 88 The undersigned has so found.
Counsel for the Respondent argues that the interest of its officials , even if estab-
lished, involved no unfair labor practices ; this contention is without merit.
The organized efforts of the Respondent to determine the nature and extent of
sentiment favorable to the union among its employees involved , in effect, a form
of surveillance ; The fact that the employees were ignorant of it, except by
rumor, is immaterial. Its necessary effect, as the Board has found , is to limit
employees in the exercise of their statutory rights ; even if it be assumed, for
the purpose of argument , that "restraint" and "coercion " may be absent when
surveillance or espionage is successfully concealed, conduct which is properly
subject to that characterization is nevertheless vulnerable as "interference," if
on no other ground.87 An employer may not legally "seek " information on those
88 After the first election, as noted, O'Ware told Lloyd that he had participated in a pay-
roll check to "identify" the union supporters.
89 Standard- Coosa-Thatcher Company, 85 NLRB 1358; Virginia Electric ti Power Co.,
44 NLRB 404, 427, enf'd 132 F. 2d 390 (C. A. 4) aff'd 319 U. S. 553.
EASTMAN COTTON MILLS 79
subjects which the statute makes the sole concern of its employees. Contrary to
the contention of the Respondent, the undersigned finds that its efforts to confine
communication with respect to this aspect of its activities to its supervisory staff
is insufficient to insulate it against the conclusion that its course of conduct
involved an unfair labor practice.
Upon the entire record, the undersigned finds that the conduct of Superin-
tendent McNeil, Assistant Superintendent O'Ware, Overseer Johnson, and Direc-
tor Ragan, as outlined, interfered with, restrained, or coerced the employees of
the Respondent in their exercise of the rights guaranteed by Section 7 of the
statute.S8
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes which burden and
obstruct commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent did engage and has continued
to engage in certain unfair labor practices, it will be recommended that it cease
and desist therefrom and take certain affirmative action designed to effectuate
the policies of the original Act and the Act as amended.
It has been found that the Respondent discriminated in regard to the hire
and tenure of employment of Earl E. Barnett, Henry Sylvester Batts, G. Ben
Williamson, Otis C. Batts, Obie Dyle Coleman, and Hayward G. Lloyd, by the
termination of their employment on the dates noted elsewhere in this report,
and by its later failure or refusal to reinstate them, because they joined and
assisted the union or because they engaged in other concerted activity for the
purposes of collective bargaining and other mutual aid or protection. In the
case of Lloyd, it has been found that the Respondent discriminatorily discharged
him because of his failure to cooperate with the Respondent in the commission
of an unfair labor practice, and because of the Respondent's assumption that he
had been responsible for the violation of its "confidences" in that respect. In
order to effectuate the policies of the Act, therefore, it will be recommended that
the Respondent be ordered to offer each of these individuals immediate and full
reinstatement to the positions they held before discrimination was practiced
88 As noted , the instructions of the Respondent to its supervisors , with regard to expres-
sions of opinion about the Union or its organizational campaign, were never communi-
cated to the employees. Nor did the Respondent, in its posted notices, disavow any past
unneutral conduct on the part of its supervisors or specifically disclaim responsibility
for any future conduct of a similar nature by its supervisory staff. The Respondent's
neutrality instructions to supervisors , under the circumstances , must be regarded as in-
effective to relieve it of responsibility for conduct on their part found to constitute inter-
ference, restraint, or coercion , which the employees might reasonably believe to reflect the
attitudes of management. J. H. Rutter-Rea Manufacturing Co. Inc., 86 NLRB 470;
Wadesboro Full-Fashioned Hosiery Mills, Inc., 72 NLRB 1064. And the notices indicative of
neutrality which contained no specific disavowal of past or future interference , restraint,
or coercion on the part of any supervisor must also be considered ineffectual to relieve the
Respondent of responsibility for the conduct attributable to its supervisory staff and
others acting as agents. Fulton Bag and Cotton Mills, 75 NLRB 883 ;Parkchester Machine
Corp., 72 NLRB 1410. Employers may not relieve themselves of liability for conduct,
found as a matter of law to constitute an unfair labor practice, by the mere general
declaration of their subjective intent to stay within the limits of law.
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against them, or to substantially equivalent positions,89 without prejudice to
their seniority or other rights and privileges ; and, in addition, make whole each
of them for any loss of pay they may have suffered by reason of the discrimina-
tion practiced against them, by the payment to each of a sum of money equal to
the amount which each of them normally would have earned as wages from
the date of the discrimination practiced against them to the date of the rein-
statement offer recommended in this report, less the net earnings of each of
them °D during such period.
The record establishes that Hayward G. Lloyd was a supervisor at the time
of the discrimination noted. Thus, while it has been found that the Respondent's
treatment of Lloyd was an unfair labor practice, with respect to him, at the
time it occurred-and that it represents a continuing unfair labor practice
insofar as its repercussions extend, in legal effect, to the "rank and file" e^m-
ployees of the Respondent, the undersigned has considered, seta sponte, his right
to reinstatement. The-amended- statute clearly bars any conclusion of law that
the Respondent, at present, is guilty of discrimination with respect to his hire
or the tenure of his employment. He was discharged, however, at a time
when supervisors were entitled to statutory protection. The undersigned
therefore concludes and finds, for the reasons stated in the Republic Steel case,"
that the Respondent has, by the discriminatory discharge of Lloyd, incurred a
liability existing beyond the effective date of the amended Act, which the Board
has the power to adjudicate and remedy. Even in the absence of a justification
arising out of the Respondent's "discrimination" with respect to Lloyd, his
reinstatement, in the opinion of the undersigned, is required to effectuate the
policy of the Act as amended; its amendment had no effect on the authority or
duty of the Board to remedy unfair labor practices which affect "rank and
file" employees, even though the remedy may require the reinstatement of a
supervisor. And, in view of the injury to the statutory right of the "rank
and file" employees to engage in concerted activity implicit in Lloyd's dis-
charge, it seems clear that the only effective method by which that injury may
be remedied is to be found in the restoration of Lloyd to his former supervisory
position. This remedy the undersigned finds essential, not to vindicate the present
statutory rights of the former second hand but to dissipate the effect, upon other
employees, of the Respondent's conduct in connection with his employment. In
addition, under the circumstances, it will be recommended that the Respondent
cease and desist from discouraging union membership on the part of its non-
supervisory personnel, and from interference with, restraint, or coercion of its
"rank and file" employees by the discharge of supervisory personnel because of
their refusal to participate in the commission of unfair labor practices, or
because of their assumed responsibility for the publication of information with
respect to the Respondent's intentions in that connection."
89 See The Chase National Bank of the City of New York , San Juan, Puerto Rico, Branch,
65 NLRB 827.
99 See Crossett Lumber Co ., 8 NLRB 440 ; Republic Steel Corporation v. N. L. R . B., 311
U. S. 7.
91 Republic Steel Corp . ( Upson Division) , 77 NLRB 1007 ; see also H . J. Barton d/b/a
Barton Brass Works, at al , 78 NLRB 431 ; Universal Camera Corporation , 79 NLRB 379;
Zs'astera Coal Corp., 79 NLRB 1165 , enf'd 176 F. 2d 131 (C. A. 4) ; N. L. R. B. v. Edward
U. Budd Mfg . Co., 162 F. 2d 461 (C. A. 6), cert. den. 332 U. S. 840 ; 169 F . 2d 571 (C. A. 6),
c•.ert . den. 335 U. S. 908.
m. Cf. Republic Steel Corporation and H . J. Barton, et at, supra, in which the Board
refused to order employers not to engage in future "discrimination" against supervisory
personnel , because it is no longer unlawful . The unfair labor practice found in this case
EASTMAN COTTON MILLS 81
It has been found, in addition, that the Respondent engaged extensively
in a campaign to defeat the statutory right of its employees to achieve self-
organization. Shortly after the Union's organizational activity began, respon-
sible officials of the Respondent, in their efforts to determine the extent of
that activity and the prospects of a Union victory in an election, questioned em-
ployees about their attitude with respect to that organization, their estimate
of its chances in the election, and their voting intentions. On one occasion, a
director of the Respondent, whose statements with respect to its plans would
normally be entitled to considerable weight, promised to use his influence with the
president of the company, to install certain physical improvements calculated to
improve the conditions of employment at the mill; the record clearly warrants
the inference that he (lid so because of the interest of the employees in the
Union's organizational campaign. Other employees of the Respondent, with
supervisory authority, engaged in open surveillance of a union meeting. The
superintendent and his department heads made a concerted effort to identify the
union -supporters. Their effort was followed by the discharges found. The
totality of the conduct for which the Respondent is thus responsible, in the
opinion of the undersigned, reveals a basic intention to interfere with, restrain,
and coerce its employees in their exercise of rights guaranteed by the Act. Be-
cause of the conduct cited and the underlying attitude of opposition to the ob-
jectives of the Act revealed thereby, the undersigned is convinced and finds
that the unfair labor practices found are closely related to the other unfair
labor practices proscribed by the Act, and that a danger of their commission in
the future is to be anticipated from the conduct of the Respondent in the past.''
The preventive purpose of the Act may be frustrated unless the order of the
Board is coextensive with the threat. In order therefore to make effective the
iiiterdependent guarantees of Section 7, to prevent a recurrence of unfair labor
practices and thereby minimize strife which burdens and obstructs commerce,
and thus to effectuate the policies of the Act, the undersigned will also recom-
mend that the Respondent cease and desist from interfering with, restraining,
or coercing its employees in any other manner, in the exercise of rights guar-
anteed by the Act.
Since it has not been found, however, that the Respondent discriminated
against Robert Emory Dixon in respect to the hire and tenure of his employ-
ment, it will be recommended that the complaint be dismissed insofar as it
alleges discrimination as to this individual.
CONCLUSIONS OF LAW
Upon the findings of fact set forth above, and upon the entire record in the
case, the undersigned makes the following conclusions of law :
1. The operations of the Respondent, Eastman Cotton Mills, involve trade,
traffic, and commerce among the several States and affect commerce within
the meaning of Section 2 (6) and (7) of the original Act and the Act as
aninended.
with respect to Lloyd's termination, however, is clearly predicated upon a finding that
the Respondent's conduct was reasonably calculated to produce an effect upon the Respond-
ent's employees which is enjoinable under the Act as amended. See Briggs Mfg. Co., 75
NLRB 569 ; Universal Camera Corp., 79 NLRB 379.
113 N. L. R. B. v. Express Publishing Company, 312 U. S. 426, 437 ; May Department
Stores Company v. N. L. R. B., 66 Sup. Ct. 203, 213, 326 U. S. 376.
903847-51-vol. 90-7
82
2. The Textile Workers Union of America, affiliated with the Congress of
Industrial Organizations, is a labor organization within the meaning of Section
2 (5) of the original Act and the Act as amended.
3. By discriminating in regard to the hire and tenure of employment of
Hayward G. Lloyd, thereby discouraging membership in the Textile Workers
Union of America, affiliated with the Congress of Industrial Organizations, the
Respondent did engage in an unfair labor practice within the meaning of Section
8 (3) of the original Act.
4. By discriminating in regard to the hire and tenure of employment of Earl.
E. Barnett, Henry Sylvester Batts, G. Ben Williamson, Otis C. Batts, and Obie
Dyle Coleman, thereby discouraging membership in the Textile Workers Union
of America, affiliated with the Congress of Industrial Organizations, the Re-
spondent did engage and has continued to engage in unfair labor practices
within the meaning of Section 8 (3) of the original Act and Section 8 (a) (3)
of the Act as amended.
5. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the original Act and the Act as amended,.
the Respondent did engage and has continued to engage in unfair labor practices
within the meaning of Section 8 (1) of the original Act and Section 8 (a) (1) of
the Act as amended.
6. The unfair labor practices found are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the original Act and the
Act as amended.
7. The Respondent did not engage in unfair labor practices within the mean-
ing of Section 8 (3) of the original Act or Section 8 (a) (3) of the Act as.
amended in connection with the separation of Robert Emory Dixon on Decem-
ber 31, 1946, or in connection with its refusal to offer him regular employment
c
after that date.
EASTMAN COTTON MILLS
RECOMMENDATIONS
Upon these findings of fact and conclusions of law, the undersigned recom-
mends that the Respondent, Eastman Cotton Mills, of Eastman, Georgia, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in any labor organization on the part of its
employees, by discriminatorily discharging or refusing to reinstate any em-
ployees, or by discriminating in any other manner with regard to the hire or
tenure of their employment or any term or condition of their. employment, or
by the discharge of supervisory personnel ;
(b) Interfering with, restraining, or coercing its employees by the discharge
of supervisory personnel, or in any other manner, in the exercise of their right
to self-organization, to form labor organizations, to join or assist the Textile.
Workers Union of America, affiliated with the Congress of Industrial Organiza-
tions, or any other labor organization, to bargain collectively through repre-
sentatives of their own free choice, and to engage in concerted activity for the pur
poses of collective bargaining and other mutual aid or protection, or to refrain
from any or all of such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3) of the Act.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD 83
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act:
(a) Offer to Earl E. Barnett, Henry Sylvester Batts, G. Ben Williamson,
Otis C. Batts, Obie Dyle Coleman, and Hayward G. Lloyd immediate and full
reinstatement to the positions they held before they were discriminated against,
or to substantially equivalent positions, without prejudice to their seniority and
other rights and privileges previously enjoyed, and make them whole for any loss
of pay they may have suffered as a result of the discrimination practiced against
them, by the payment to each of them of a sum of money equal to the amount
which they normally would have received as wages from the date of the dis-
crimination practiced against them to the date of the reinstatement offer herein
recommended, less the net earnings of each of them during the period in question ;
(b) Post at its plant near Eastman, Georgia, copies of the notice attached to
this report. Copies of the notice, to be furnished by the Regional Director of
the Tenth Region, as the agent of the Board, should be posted by the Respondent
immediately upon their receipt, after being duly signed by a representative of
the Respondent, and should be maintained by it for sixty (60) consecutive days
thereafter in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps should be taken by the Respondent
to insure that the notices are not altered, defaced, or covered by any other
material;
(c) File with the Regional Director of the Tenth Region, as the agent of the
Board, within twenty (20) days after the date of service of this Intermediate
Report and Recommended Order, a report in writing setting forth in detail the
manner and form in which it has complied with these recommendations.
All parties are advised that upon the filing of this Intermediate Report and
Recommended Order and the service of copies upon the parties-as provided in
Section 203.45 of the Rules and Regulations of the National Labor Relations
Board, Series 5, as amended, effective August 18, 1948-the Board will enter an
order transferring the case to itself, and will serve a copy of the order upon
each of the parties, setting forth the date of the transfer.
RECOMMENDED ORDER
If, within twenty (20) days after the date of service of this Intermediate
Report and Recommended Order, the Respondent satisfies the Regional Director,
as the agent of the Board, that it has complied,.or will comply, with the foregoing
recommendations, it is recommended that the National Labor Relations Board
issue an order, or take other appropriate action, to close the case on compliance.
Unless the Respondent satisfies the Regional Director, within twenty (20) days
after the date of service of this Intermediate Report and Recommended Order
that it has complied, or will comply, with the foregoing recommendations, it is
recommended that the National Labor Relations Board issue an order requiring
the Respondent to take such action.
It is further recommended that the complaint be dismissed insofar as it alleges
the discharge of Robert Emory Dixon on December 31, 1946, by the Respondent,
as a discriminatory discharge within the meaning of the Act.
All parties are advised, however, that any party may, within twenty (20)
days after the date of service of the order transferring the case to the Board,
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
file'with the Board, at Washington 25, D. C.-pursuant to Section 203.46 of the
Rules and Regulations-an original and six copies of a statement in writing set-
ting forth' such exceptions to the Intermediate Report and Recommended Order
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 of the exceptions. Matters not included in the State-
ment of Exceptions may not thereafter be urged before the Board, or in any
further proceeding under the Act. Any party also may, within the same period,
file an original and six copies of a brief in support of the Intermediate Report
and Recommended Order. Immediately upon the filing of such a Statement of
Exceptions and supporting brief, or the filing of a brief in support of the Inter-
mediate Report and Recommended Order, the party filing any such document
shall serve a copy of it upon each of the other parties. Proof of service upon the
other parties shall be promptly made, as required by Section 203.85, with respect
to all papers filed with the Board."
Should any party desire permission to argue orally before the Board, a request
for such permission must be made in writing to the Board within ten (10) days
after the date of service of the order transferring the case to the Board.
The parties are further advised that, in the event no Statement of Exceptions
is filed, as provided by the Rules and Regulations, and in the absence of com-
pliance, all objections and exceptions to this Intermediate Report and Recom-
mended Order shall be deemed to be waived for all purposes-as provided in
Section 203.48 of the Rules and Regulations-and the findings, conclusions and
recommendations contained in it shall be adopted by the Board and become its
findings, conclusions and order.
Dated at Washington, D. C., this 30th day of November 1949.
MAURICE M. MILLER,
Trial Ea"ayniner.
APPENDIX
NOTICE TO ALL EMPLOYEES
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, as amended , wdhereby notify our employees that: ,
WE WILL NOT interfere with, restrain , or coerce our employees by the dis-
charge of supervisory personnel , or in any other manner, in the exercise
of their right to self-organization, to form labor organizations , to join or
assist THE TEXTILE WORKERS UNION OF AMERICA, AFFILIATED WITH THE
CONGRESS OF INDUSTRIAL ORGANIZATIONS , 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, ox to refrain from any or all of such activi-
ties, except to the extent that such right- may be affected by an agreement
requiring membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
EASTMAN COTTON MILLS 85
WE WILL OFFER to the individuals named below immediate and full rein-
statement to the positions they held before they were discriminated against,
or to 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 discrimination.
Earl E . Barnett Otis C. Batts
Henry Sylvester Batts Obie Dyle Coleman
G. Ben Williamson Hayward G. Lloyd
All our employees are free to become or remain members of the above-named
union or any other labor organization . We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
EASTMAN COTTON MILLS,
Employer.
By -----------------------------
(Representative ) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.