F. W. Poe Manufacturing Co.

National Labor Relations Board - Board Decisions

Nov 8, 1940

27 N.L.R.B. 1257 (N.L.R.B. 1940)

In the Matter of F. W. POE MANUFACTURING COMPANY and TExTJLE
WORKERS UNION OF AMERICA
Case No. C-1594.-Decided November 8, 1940
Jurisdiction : textile industry.
Unfair Labor Practices
Interference, Restraint, and Coercion.: charges of, dismissed
Discrimination: discharge, charges of, dismissed
Filing Charges Under the Aetc refusal to reinstate an employee because be
had filed charges under the Act.
The prohibitions of the statuth against discrimination for filing charges
is effective irrespective of whether the employer believes the charges to
be false or whether the ultimate proof sustains their validity.
Remedial Orders : reinstatement ordered; back pay awarded from date employee
would have been reinstated, in the absence of unlawful discrimination against
him, to the date of the offer of reinstatement
Mr. Alexander E. 117ilson and Mr. William E. Spencer, for the
Board.
Price & Poag, by Mr. James H. Price, of Greenville, S. C., for
the respondent.
Mr. Ralph E. Siminerson, of Greenville, S. C., and Mr. Paul R.
Christopher, of Spartanburg, S. C., for the Union. -
Mr. Bliss Daffan, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Charges and amended charges having been duly filed on Sep-
tember 11, 1939 , and February 9, 1940, respectively , by Textile Work-
ers Union of America , herein called the Union , the National Labor
Relations Board, herein called the Board, by the Regional Director
for the Tenth Region ( Atlanta, Georgia), issued its complaint dated
January 29 , 1940, against F. W. Poe Manufacturing Company,
Greenville , South Carolina, herein called the respondent , alleging
that the respondent had engaged in and was engaging in unfair
Tabor practices affecting commerce within the meaning of Section
27 N , L. R B., No. 207.
'1257
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8 (1) and (3) and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat. 449, herein called the At. Copies of the
complaint and accompanying notice of hearing were duly served
upon the, respondent and the Union.
In respect to the unfair labor practices, the complaint alleged in
substance that (1) since March 1938 the respondent has advised its
employees to withdraw from or to refuse to join the Union; threat-
ened them with lay-off, discharge, or disciplinary action if they
were active in its behalf; promised them better jobs if they with-
drew therefrom; informed union members that it disliked their
attitude because of their activities; and advised employees that the
Union would not benefit them; (2) on or about June 12, 1939, the
respondent discharged and thereafter refused to employ C. L. Smith
because he joined and assisted 'the Union and engaged in concerted
activities with other employees for the purposes of collective bar-
gaining and other mutual aid and protection; and (3) by the afore-
mentioned acts and other acts, the respondent interfered -with, re-
strained, and coerced its employees in the exercise of` their rights
under Section 7 of the Act.
On February 7, 1940, the respondent filed its answer, in which
it admitted the allegations of the complaint as to the character of
its business and that it is engaged in interstate commerce, but denied
thatit had engaged in the alleged unfair labor practices.
Pursuant to notice, a hearing was held in Greenville, South Caro-
lina, onFebruary 15, 16, and 19, 1940, before-W. P. Webb, the Trial
Examiner duly designated by the Board. The Board and the re-
spondent were represented by counsel and the Union by its repre-
sentatives; all participated in the hearing.- Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce
evidence bearing upon the issues was afforded all parties. At the
conclusion of the Board's case the Trial Examiner granted a motion
of the Board's attorney to"conform the pleadings to the proof.' This
ruling is hereby affirmed. During the course of the hearing the
Trial Examiner made numerous other rulings on motions and on
-objections to the admission of evidence. The Board has reviewed
these rulings of the Trial, Examiner and finds that no prejudicial
errors were committed.
After the close of the hearing the respondent filed a brief with
the Trial Examiner. Oil May 23, 1940, the Trial Examiner issued
his Intermediate Report, in which he found that none of the charges
of unfair labor practices alleged in the complaint was sustained
by the evidence and recommended dismissal of the complaint in its
F'. W. POE MANUFACTURING COMPANY 1259
entirety. On June-26, 1940, the Union filed exceptions to the Inter-
mediate Report.
On July 11, 1940, the Union filed amended charges alleging that the
respondent had engaged in and was engaging in unfair labor practices
within the meaning of Section 8 (1), (3), and (4) of the Act. It
appearing that the-allegations of the complaint did not conform
in certain respects to the evidence offered and received at the hearing,
the Board, acting pursuant to Section 10 (b) of the Act and Article
II, Section 7, of National Labor Relations Board Rules and Regu-
lations-Series 2, as amended, did on August 2, 1940, issue and
cause to be served upon the parties its amendment to complaint
pursuant to which the complaint was amended by adding allega-
tions that on or about October 1, 1939, and thereafter, the respondent
refused and still refuses to reinstate C. L. Smith for the further
reason that he filed or caused to be filed charges under the Act,
thereby discriminating against him and thus engaging in unfair
labor practices within the meaning of Section 8 (4) of the Act.
At the time of the service of said amendment to complaint, notice
was given to the respondent that it would be allowed ten (10) days
from receipt of such notice in which to file with the Board in Wash-
ington, D. C.. an answer to the complaint as thus amended; and
that with such answer it might submit a request for hearing on the
complaint as thus amended. On August 12, .1940, the respondent
filed its answer to the amendment to complaint and also advised
,the Board that evidence relative to the issues raised by such amend-
ment had been fully developed at the hearing and that it did not
desire to present any additional evidence.
In its answer the respondent denied that Smith was refused re-
instatement for filing charges under the Act and affirmatively al-
leged that Smith had not been reinstated because the respondent
was unwilling to discharge an employee to provide employment for
Smith after he' had made false charges against the respondent.
On August 29, 1940, pursuant to request therefor by the Union,
and notice thereof to all parties and their attorneys, a hearing was
held before the Board in Washington, D. C., for the purpose of oral
argument., Counsel for the respondent and the Union appeared
and participaied therein.
The Board has fully considered the Union's exceptions to the In-
termediate Report and, in so far as they are inconsistent with the
findings, conclusions of law, and order set forth below, finds them
to be without merit. .
Upon the entire record in the case, the Board makes the following :
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a South Carolina corporation having its prin-
cipal office and place of business in. Greenville, South Carolina, where
it is engaged in the manufacture, sale, ' and distribution of print
cloth, corded broadcloth, and tobacco cloth. Approximately 10,000
bales of cotton, all obtained outside the State of South Carolina, are
used annually by the respondent in its manufacturing operations.
Approximately 50 per cent of the finished products manufactured by
the respondent are shipped to converters and finishers outside the
State of South Carolina, and the remaining 50 per cent are, converted
or finished in South Carolina but thereafter shipped to markets out-
side the State. Finished products of the respondent termed "gray
'cloth" are sold and distributed through a selling agent located in
New York City. During an average year the respondent produces
about 5,000,000 pounds of cloth.
11. THE ORGANIZATIONS INVOLVED
Textile Workers Union of America- is a labor organization af-
filiated with the Congress of Industrial Organizations. It admits
to membership all workers employed in'and about places of business
engaged in the manufacturing or processing of cotton, wool, silk,
rayon, flax, jute, or other natural or synthetic fibres into yarn,
thread, and fabrics.
A. Alleged interference, restraint, old coercion
- The complaint alleged that the respondent advised its employees
to withdraw from or refuse to join the Union; threatened them with
lay-off, discharge, or disciplinary action if they were active in its
behalf; promised them better jobs if they withdrew' therefrom; in-
formed union members that it disliked their attitude because of their
activities; and advised employees that the Union would not benefit'
them.
In May 1937 John H. Kirby became an organizer for the ,Textile
Workers Organizing Committee, predecessor organization of the
Union, for the district in which the respondent's plant is located.
During the summer of 1937 and in the month of June 1938 Kirby-
distributed union literature in the respondent's mill village. He tes-
tified that between May 16, 1938, and June 12, 1939, 112 of the re-
spondent's employees joined the Union, and between June 12, 1939,
and, February 16, 1940, 14 more joined.
F. W. POE MANUFACTURING COMPANY 1261
During the course" of Kirby's testimony he was examined with ref-
erence to a placard about 8 inches square introduced in evidence by
the Board. Kirby testified that he took the placard from a post on
Hammett Street in front of one of the respondent's houses in its mill
r village. Printed on the placard was the following:
C. I. O. is Communistic
Communism
Will Not Be Tolerated
Ku-Klux Klan
Rides Again
Kirby did not fix the date when he obtained the placard, admitted
that he did not know who had attached the placard to the post, but
explained that Hammett Street was situated on the border line of
the respondent's mill village, the property on one side of the street
being privately owned, and on the other side the property of the re-
spondent occupied by employee houses. Kirby also produced a large
circular containing matters derogatory to the C. I. O. and testified
that he had obtained the circular from one Hall, an employee of the
respondent who lived in the mill village, on an occasion when Kirby
had visited Hall at his home. Kirby testified further that Hall in-
formed him that he found the circular on his front porch. Kirby
did not disclose the date when he received the circular from Hall.
On cross-examination lie was asked if he knew who had, distributed
the circular, and replied that Fred Johnson, "head of the KKK," was
in charge of its circulation.
The Trial Examiner found that there was no evidence connecting
either the placard or the circular with the respondent. The Union
objects.to the Trial Examiner's finding and contends that responsibil-
ity for both the placard and the circular is attributable to the re-
spondent because they were found in the mill village, which is under
the direct supervision of the respondent's mill police. While it is
true that the respondent's mill village is under the supervision of the
mill police, the evidence in the record relative to the placard and the
circular is not sufficient to charge the respondent with responsibility
for them. We therefore overrule the Union's exception and concur
in the finding of the Trial Examiner.
Coley Smith, named in the complaint as having been discrimina-
torily discharged on June 12, 1939, joined the Union on May 16,
1938. He testified that in February 1939 he had a conversation with
Henry Dacus, a loom fifer in the respondent's plant. On this occa-
sion, Smith testified, he was wearing a union badge and Dacus asked
him "if that is one of the badges.", When Smith replied that it was
Dacus then stated, according to Smith, that "this Wage and Hour
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bill was about passed and the mill companies would have to do as
Uncle Sam says anyhow" and that he "did not see no use in belonging
to a union or having to pay dues." . Smith also'detailed another con-
versation with Dacus which occurred after Smith's dismissal front
the respondent's employ. Smith testified that on February 13, 1940,
just 2 days prior to his testimony at the hearing, he was sitting on a
bench in front of the respondent's mill when Dacus came out of the
mill and joined him. According to Smith, his conversation with
Dacus on this occasion, centered around employment in the mill,
Dacus stating that he had left the respondent's employ for a time
but had returned when the respondent had sent for him. Smith then
questioned Dacus as to why he had not been sent for by the respond-
ent, and when Dacus answered that he did not,know, Smith stated,
"Well, I think it was my union activities; that is the reason they have
not sent for me." Dacus replied, "Well there isn't any good in union
nohow. They can't do nothing- for you,, and they won't do nothing
for you. They did not make them put you back to work did they ?"
In connection with the two conversations he had with Dacus, Smith
testified that as a loom fixer Dacus had supervisory authority over
him as a weaver. He explained that in fixing the looms of which he
was in charge as a weaver Dacus made a record of the "seconds" run
and reported them to the overseer of weavers, and could thus "recom-
mend them to be fired."
The Trial Examiner' found that Dacus was not a supervisory em-
ployee and could not commit the respondent. The Union has excepted
to this finding. The record discloses that in its operations the re-
spondent employs an equal number of loom fixers and weavers-one
loom fixer being assigned to take care of the mechanical operations of
the looms run by a particular weaver. It also discloses that supervi
sion over Smith as a weaver is exercised only by a second hand,'the
overseer of weavers, the plant superintendent, and the respondent's
president. The same officials exercise supervision over the loom fixers.
Smith's testimony to the effect that. loom fixers are supervisory em-
ployees was not corroborated. On the other hand, a number of the
respondent's officials and employees, including loom fixers, testified
positively that loon fixers have no supervisory authority. Under
these circumstances the evidence is'not sufficient to warrant a finding
that loom fixers are supervisory employees.' We therefore concur in
the Trial Examiner's finding that statements made by Dacus could not
commit the respondent.
1 Cf Matter of Borden Mills , Inc and Textile Workers Organizing Committee, 13 N. L.
It. B. 459, Matter of Steluli and Co., Inc. and Textile Workers Union of Lancaster, Penn-
- sylvania and Vicinity, Local No. in, 11 N. L R B. 1397, where under the facts there
found loom fixers *ere held to be supervisory employees
F. W. POE MANUFACTURING COMPANY 1263
J. W. Tripp, brother-in-law of Smith and former employee of the
respondent, testified that he had a conversation with W. W. Rodgers,
plant superintendent, about a month prior to Smith's discharge, rela-
tive to securing a house in the mill village. Tripp stated that Smith's
name was injected into this conversation when he disclosed to Rodgers
that Smith lived with him, and that Rodgers then raised the objection
that the respondent's rules did not permit anyone living in the mill
village to "keep boarders,", and advised Tripp to "talk to Smith."
Tripp testified further that, although hey did not know what Rodgers
meant by this remark, he thought it must have reference to Smith's
membership in the Union, and for-this reason contacted Smith about
10 days later and advised him "to get out of the Union, that it'might
cause him to be laid off." Tripp admitted that Rodgers made no men-
tion of the Union during the course of the conversation.
Rodgers' version of the incident was that sometime in January 1939
he called Smith in and talked to him about his work because his
"seconds" were running high; sometime later, on an occasion when
Tripp was in the office, Tripp mentioned that Smith had told him
about Rodgers' having talked to Smith about his work, and stated
with reference to Smith that '"his trouble now is what has been the
trouble with his work for the last few weeks is, he is drinking a lot of
liquor, and he and his wife is not getting on, they are having a lot of
trouble." According to Rodgers, he then suggested'to Tripp to talk to
Smith and see if he could not get "him straightened out."
The Union contends that the evidence discloses that the purpose of
Rodgers' conversation was to have Tripp warn Smith that he would
lose his job with the respondent unless he gave up his membership in
the Union. We are not 'persuaded by this contention. Smith ad-
mitted that lie was called into the office by Rodgers sometime in Febru-
ary 1939 and warned that if his work did not improve' he would be
discharged. He also admitted that he separated from his wife in the
spring of 1939 because of marital- difficulties and thereafter gave-up
his house in the-mill village at the request of the respondent and took
up residence with Tripp. Thus, Smith's own admissions are entirely
consistent with Rodgers' version of the subject matter of Tripp's con-
versation with him.
We find that the allegations of the complaint that the respondent
has advised its employees to withdraw from or refuse to join the
Union ; threatened them with lay-off, discharge, or disciplinary action
if they were active in its behalf; promised them better jobs if they
withdrew therefrom; informed union members that it disliked their
attitude because of their activities; and advised employees that the
Union would not benefit them, are not sustained-by the evidence. We
will, accordingly, order that such allegations be dismissed.
1264' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The discrimination against Smith
The complaint, as amended, alleges that Coley L. Smith was dis-
charged on June 12, 1939, and thereafter refused reemployment be-
cause he joined and assisted the Union; and on'or about October 1,
1939, and thereafter, was refused reinstatement for the additional
reason that he filed or caused to be filed charges under the Act.
Smith was a weaver and had been employed by the respondent in that
capacity for approximately 7 years when he was laid off on June 12,
1939. Smith testified that he joined the Union on May 16, 1938, but
kept his membership therein a secret until February 1939, at which
time he approached Burnett, overseer of weavers in the respondent's
plant, asked Burnett if he knew that he belonged to the Union, and
showed his- membership card in the Union because he thought that by
so doing he would "have full government protection against discrnni-
nation." Smith testified that when he made this disclosure Burnett re-
marked that he "didn't care anything about it." Burnett denied that
he ever had any discussion with Smith relative to his union member-
ship. Smith testified further that -he began to wear his union badge
in the mill regularly thereafter and to solicit the employees to become
members of the, Union; and that he talked to approximately 15
employees prior to June 12, 1939, and asked them to join the Union,
but that none of them did.
The Trial Examiner found that there was little union activity in
the respondent's plant, that Smith was not active in union affairs, and
that "it is doubtful" if Burnett and Rodgers had knowledge of Smith's
union membership. The Union excepts to these findings of the Trial
Examiner as contrary to the evidence.
The evidence is clear that Smith's union activity was not extensive.
Although he• testified that he had solicited 15 employees to join the
Union prior to his lay-off he could name only 1, Edmund, when asked
to do so on cross-examination., Edmund, a spare hand who had been
in the respondent's employ for 22 years, took the stand during the hear-
ing and testified that he had joined the Union at the solicitation of
Smith during the summer of 1939 and that he had worn his union badge
regularly thereafter in the mill. In finding that "it is very doubtful"
that Burnett and Rodgers knew of Smith's union membership, the
Trial Examiner credited Burnett's denial of Smith's testimony that he
had shown his card to Burnett in February 1939. However, it is not
necessary to make a finding regarding the card disclosure incident since
there is other evidence in the record which persuades us•that the re-
spondent had knowledge of Smith's union membership. Morgan,
Smith's second hand, was asked while on the' stand if he had seen
Smith wearing his union badge in the plant and admitted that he had
F. W. POE 111ANUFACfURING COMPANY 1265
seen Smith wearing a badge "but what time" and "what kind of badge"
he could not say. Morgan was Smith's immediate superior. Edmund
who worked in the salve room with Smith as a smash `hand, testified
that Smith wore his union badge regularly while at work in the plant.
Under these circumstances we find that the respondent had knowledge
of Smith's union membership.
Prior to June 1939 the respondent had expended approximately
$325,000 for improved machinery in its plant. Because of the installa-
tion of the new machinery it was found that one Weaver could operate
76 looms whereas prior to its installation a weaver could operate only
65 looms. Therefore, early in June 1939 the respondent decided that it
could dispense with the services of eight weavers and eight loom fixers
and thereby effect a saving of $15,000 annually. On Friday, June 9;
1939, Burnett called the weavers from the four weaving rooms in the
plant into his office, taking the weavers from each room separately,
advised them that the respondent was making a change which would
necessitate each weaver operating a greater number of looms, and that
eight weavers, not then selected, would be laid off; that the weavers
laid off would be put on the spare floor 2 and given all the work possible
until vacancies occurred and regular employment was again available
to them.
By Monday, June 12, 1939, the respondent's officials had decided
upon,the eight weavers and eight loom fixers to be laid off under'the
new arrangement. Smith was selected as one of the weavers to be laid
off on the second shift in Room No. 1. Burnett advised the second
hands in each of the weaving rooms of the names of the particular
weavers selected for dismissal and instructed that they be sent to him.
When the weavers came to his office Burnett advised them of their lay-
off and told them to report to the spare floor thereafter for extra work.
In like manner, the eight loom fixers were advised of their respective'
lay-offs and told,to report to the spare floor.
There is a conflict in the evidence concerning the circumstances
surrounding Smith's lay-off. Smith testified that on June 12, 1939, he
was advised by Morgan that Burnett wanted to see him but did not
go to the office immediately because of some work that he was doing;
that shortly thereafter he went to Burnett who was then on the spare
floor, asked Burnett if he wanted to see him, and Burnett replied that
he had to lay Smith off because he did not live in the mill village;
2 During his testimony Burnett explained with reference to the spare floor that it was
the respondent ' s custom to have all employees who did not have regular employment report
each day to the spate floor , from which spare employees were obtained when needed for
extra work or'to fill any vacancies that might occur He testified that it was necessary
for an employee on the spare list to report to the spare floor every day regularly to obtain
work-because of the respondent ' s practice of making selections for employment from the
spare floor , and to send for employees only when there were no employees available there.
323428-42-vol 27-81
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that.he then asked Burnett if he was "completely laid off" and Burnett
replied that he was; that he asked Burnett to give him "spare work"
but that Burnett refused this by stating that he "didn't-have anything
for me."
Burnett testified that on the day of the lay-off he advised Morgan
that Smith had been selected as one of the weavers to be laid off on
the second shift in Room No. 1, and requested. Morgan to send Smith
to see him; that Morgan returned from this mission and stated that
Smith had said, " If you [Burnett] want to see him, you have to come
out there"; that on his way to Smith's room, he met Smith near the
spare floor, asked him what was the matter, and when Smith shook
his head and did not reply, advised him that "it was no use to do that
way about it," and that Smith was being put on the spare list and
would receive all the work that the respondent could give him.
The Trial Examiner, who had an opportunity to observe the wit-
nesses, credited the testimony of Burnett with reference to the cir-
cumstances surrounding Smith's lay-off and found,that Smith was
not discharged but was laid off on June 12 and told by Burnett to
report to-the spare floor for extra work. Other evidence convinces
us of the correctness of the Trial Examiner's finding. The evidence
discloses that when an employee of the respondent is discharged or
his employment terminated, a time sheet is made out, signed by the
superintendent, and given to the discharged employee so that he can
. collect -his wages immediately. In case of lay-off, under the respond-
ent's practice, the employee is carried on the pay roll and is not given
a time sheet but is required to wait until the regular pay day to receive
his wages. Smith's name was carried on the pay roll for the week
following his lay-off and he did not receive a time sheet but was re-
quired to wait until the regular pay day on the following Friday,
June 16, to receive his wages. The evidence also shows that on June
22 Smith went to the plant and obtained from the bookkeeper a "wage
and separation notice" to be presented to the South Carolina Unem-
ployment Insurance Bureau. This document, under the title "Reason
for separation," contains an X mark beside the notation "laid off (No
work available)." While Smith testified without contradiction that
he protested this notation on the document at the time it was given
to him, the respondent refused to alter the stated reason for the lay-oft.'
Moreover, during his testimony Smith admitted that when Burnett
notified the weavers on June 9, 1939, that there was to be a reorganiza-
tion, and that each weaver would be required to work,more looms, he
"understood" that someone would have to be laid off, and put on the
spare list.3 Although lie testified that he did not report to the spare
3 A number of other weavers testified that Burnett advised them on that occasion that
the employees laid off ivonld be placed on the spare list.
F. W. POE MANUFACTURING COMPANY , 1267
floor for work after.his lay-off because he had not been told by Burnett
to do so, Smith admitted that he was familiar with the respondent's
practice of requiring laid-off employees placed on the spare list to
report to the spare floor every day in order to secure employment.
Under these circumstances, we find that Smith was not discharged on
June 12 but that he was laid off on that date and instructed by Burnett
to report to the spare floor for extra work.
Rodgers testified that the responsibility for selecting the employees
to be laid off rested with Burnett and himself and that they gave pref-
erence to employees who lived in the mill village, and selected em-
ployees to be laid off who would be "hurt the least"; that Smith was
selected because he did not live in the mill village, because his wife was
then working for the respondent, and because they "understood" that
he had no children. The Union contends that Smith was not selected
as one of the employees to be laid off for the reasons assigned by the
respondent's officials and that this fact is shown by Smith's testimony
that he had a child, 8 years of age, dependent upon him for support,
and by the testimony in the record that Fred Roach, another laid-off
employee with less seniority than Smith who did, not live in the mill
village was given employment by the respondent on June 13, 1939, the
day following the lay-off.
While it is true that the evidence shows that Smith was the father
of an 8-year-old child, he testified that the child did not live with him
but lived with its grandparents. There is no showing in the record
that either Rodgers or Burnett knew that Smith had a child and
it is quite possible that they did not under these circumstances. There
is also no showing in the record as to the dependents of the weavers
retained when Smith was laid off nor as to whether or not their wives
or other members of their respective families were employed. In the
absence of such evidence it cannot be said that Smith, whose wife was
employed, was not better situated economically to withstand loss of
employment than other weavers in the respondent's employ.
Nor do we think that the fact that Roach received employment on
June 13, although he did not live in the mill village, establishes that
Smith's residence outside the mill village was not a factor in his selec-
tion for lay-off. The factors governing the original lay-off were not
asserted to be the same as those involved in choosing a man from the
spare floor to fill a vacancy as is evidenced by the fact that the respond-
ent told the laid-off employees to report to the spare floor and thus
contemplated their reinstatement. Roach's reemployment was due
lo his having followed Burnett's instructions to report to the spare
floor. The record discloses that in reorganizing its force of em-
ployees in connection with the lay-off a number of transfers were made
by the respondent from one weaving room to another, and among the
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
weavers transferred to Room No. 1, was one Hyatt. Hyatt worked on
the shift the Monday night of the reorganization, found the work
too heavy, and requested to be relieved. When Roach reported to the
spare floor on June 13, he was given work by the respondent in Hyatt's
place. There is no showing that at the time Roach was given such
employment there were other weavers available on the spare floor
who lived in the mill village. Smith admitted that he did not re-
port to the spare floor at any time after his lay-off on June 12 and
explained his failure to do so by stating that he had not been told by
Burnett to report there for extra work. However, we have found
above that Smith was told to report to the spare floor when he was
laid off on June 12, 1939. Both Rodgers and Burnett' testified that
had Smith reported to the spare floor on June 13 he would have re-
ceived the, employment given Roach. Under these circumstances
we find that Roach's reemployment is not indicative of discrimination
-against Smith.
In connection with his finding that Smith was not discriminatorily
discharged, the Trial,Examiner credited the denial of Morgan rela-
tive to a statement which K. B. Cox, father-in-law of Smith, claimed
Morgan made to him during a conversation on the street shortly after
Smith's dismissal. Cox testified in substance that lie mentioned
Smith's lay-off to Morgan on this occasion and suggested that the
"union was the cause of it" and Morgan replied: "Yes that is just
about it.", We credit Morgan's denial, as did the Trial Examiner,
and find that Morgan did not make the statement attributed to him
by Cox.
To summarize, we concur in the Trial Examiner's findings that
Smith was not discharged because of his union membership and activ-
ity but was laid off along with 7 other weavers and 8 loom fixers, none
of whom were shown to be members of the Union, when installation
of the new machinery enabled the respondent to effect a saving by thus
reducing its force of employees; that when Smith, and the other 15
employees were laid off they were told to report to the spare floor
but that smith did not do so and for this reason did not receive
reemployment.,
Upon the entire record we find that the evidence fails to sustain
the allegations of the complaint that the respondent discriminated
against Smith because of his union membership and activity by
discharging him on June 12, 1939, and thereafter refusing to reemploy
him. We will accordingly order that such allegations be dismissed.
The complaint as amended alleges that Smith was refused employ-
ment on or about October 1, 1939, and thereafter, for the additional
reason that he filed or caused to be filed charges under the Act.
F. W. POE MANUFACTURING COMPANY 1269
On September 12, 1939, the Union filed its charges herein. In the
latter part of September or early in- October 1939, a representative
of the Board called at the plant and informed Stall, the respondent's
president, that the Union had filed charges with respect to Smith's
dismissal on June 12, 1939. This was the first notice given the re-
spondent that it was being charged with having discharged Smith
because of his union membership and activity. On this occasion
Stall was asked by the Board's representative if he would give Smith
employment and refused to do so, assigning as his reason therefor
that there were no jobs available at that time. On or about October
15, 1939, Smith went to the door of the plant, asked for Burnett, and
when he appeared, requested employment. Burnett advised Smith
that there was no employment for him. Subsequent to Smith's ap-
plication for employment two weavers, who had not previously been
in the respondent's employ, were given employment by the respond-
ent.'' Burnett testified that at the time the two new weavers were
employed weavers were needed, that there were none available on
the spare floor who could do the work, and that the two men came
in "wanting to work" and were employed. Burnett testified that
he made no effort to"locate Smith when these vacancies occurred
because he did not know where to find him and also because he
thought that Smith was working elsewhere.
During his testimony Stall was questioned concerning his failure
to give employment to Smith after the Board's representative re-
quested him to do so. He testified that there were no vacancies when
the Board's representative made the request, and that when vacancies
did occur thereafter, he made no effort to contact Smith because it
was not the respondent's "way of doing"; and that, if Smith wanted
employment, "let him come up 'there." However, on being examined
further, Stall admitted that after it was made known to him that
charges had been filed herein, even if Smith had appeared on the
spare floor when a weaver was needed, he would not have received em-
ployment because he had filed "false" charges against the respondent.
When Rodgers was questioned concerning the reason why employ-
ment had been refused Smith at the time of the Board's representa-
tive's visit, he did not assign as a reason therefor that there were no
vacancies, but stated that employment was refused Smith at that time.
because the respondent deemed the charges "false" and felt that it
would not be to its best interests to take back into service a man who
had filed such charges.
When the two new weavers were employed, there were no weavers
available on the spare floor and in such circumstances it was the
* The record is not altogether clear as to the dates of the employment of the two weavers
but apparently one was hired in November and one in December.
1270 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
respondent's practice to recall weavers on the spare list. In view of,
the testimony of both Stall and Rodgers that the respondent had
determined in October not to reemploy Smith because of the charges
filed herein we do not credit Burnett's testimony that Smith was
not offered employment on those occasions because his whereabouts
was unknown or because it was thought that he was employed else-
where." By reason of the application made on behalf of Smith by
the Board's representative, in early October and Smith's personal
application on October 15 the respondent knew that Smith was avail-
able and desired reinstatement. Moreover, Burnett conceded that
Smith was a "very fair weaver". and it is reasonable to assume that
when the spare floor was exhausted this factor would have entitled
him to consideration over weavers who had not previously been in
the respondent's employ. Under these circumstances we are satisfied
and find that Smith was a laid-off employee and that the actual
reason Smith was not recalled to work was the one stated by-both
Stall and Rodgers, namely, because he had filed allegedly "false"
charges against the respondent; we likewise find that, except for
the filing of such charges, Smith would have been employed by the
respondent on or before December 1, 1939.
Section 8 (4) of the Act expressly prohibits discharge or any other
form of discrimination against an employee "because he has filed
charges or given testimony under the Act." We 'have found, and
the testimony of both Rodgers and Stall makes its plain, that after
October 1939 the respondent determined not to reemploy Smith
because he had filed charges which the respondent deemed "false."
The prohibition of the statute against discrimination is effective ir-
respective of whether the employer believes the charges to be false or
whether the ultimate proof sustains their validity.", To hold other-
wise would be to subject an employee, who invoked the protection of
the Act, to the peril of discrimination without redress in every case
where the employer considered the charges false or where, for what-
ever reason, the entire proof after a trial upon the merits failed to
sustain the validity of the charges filed. To that extent such holding
would nullify the express statutory protection afforded employees
against the unfair labor_ practice condemned by Section. 8 (4) of
the Act.
5 While Smith was employed at a textile mill in Greenville at the time of the hearing
it appears that this employment began about the first of January 1940
9 Although upon the entire record the Board finds that the evidence does not sustain the
allegation of discrimination within the meaning of Section 8 (3) of the Act, after pre-
liminary investigation the charges here were deemed by the Board to have sufficient basis
in fact to warrant the issuance of its complaint . There is no issue here concerning a'
fraudulent fabrication of charges or evidence and we do not pass upon the application of
Section 8 (4) of the Act in that situation
F. W. POE MANUFACTURING COMPANY 1271
We find that the respondent refused to reinstate Smith to its em-
ployment in December 1939 and thereafter for the reason that he
had filed charges against the respondent under the Act, and that the
respondent thereby interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find the activities of the respondent set forth in Section III
above, occurring in connection with the operations of the respondent
described in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom. We
shall order the respondent to reinstate Smith to the position which
he formerly held and to make him whole for any loss of pay fie may
have suffered by reason of the respondent's discrimination against
him. Since, as we have found, Smith would have been employed in
the weaver's position filled by the respondent in November 1939 in
the absence of unlawful discrimination against him, we will order
that the respondent pay to Smith the amount he would have normally
earned as wages from December 1, 1939, to the date of the offer of
reinstatement, less his net earnings 4 during said period.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Textile Workers Union of America is a labor organiaztion within
the meaning of Section 2 (5) of the Act.
9 By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer-
ica, Lumber and Sawmill Workers Union, Local 2590, 8 N. L R. B. 440. Monies received
for work performed upon Federal , State, county , municipal , or other work -relief projects
are not considered as earnings , but as provided below in the Order , shall be deducted from
the sum due the employee and the amount thereof shall be paid over to the appropriate
fiscal agency of the Federal , State , county , municipal , or other government or govern-
ments which supplied the funds for said work -relief projects.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By discriminating against C. L. Smith because he filed charges
under the Act, the, respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (4) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section ' 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
5. The respondent has not engaged in unfair labor practices within
the meaning of Section 8 (3) of the Act by discharging Coley L. Smith,
on June 12, 1939.
ORDER
.
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respondent,
F. W. Poe Manufacturing Company, Greenville, South Carolina, its
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discharging, refusing to reinstate, or otherwise discriminating
against any of its employees because they have filed charges or given
testimony under the National Labor Relations Act; -
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted activ-
ities for the purposes of collective bargaining and other mutual aid
or protection, as guaranteed in Section 7 of the National Labor
Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act : -
(a) Offer to Coley L. Smith immediate and full reinstatement to
his former position without prejudice to his seniority and other rights
and privileges;
(b) Make whole the said Coley L. Smith for any loss of pay that he
may have suffered by reason of the respondent's discrimination against
him by payment to him of a sum of money equal to that which he would
normally have earned as wages from December 1, 1939, to the date of
the respondent's offer of reinstatement, less his net earnings 8 during
said period; deducting, however, from the amount otherwise due to
him monies received by him during said period for work performed
8 See footnote 7, supra.
F. W. POE MANUFACTURING COMPANY 1273
upon Federal, State, county, municipal, or other work-relief projects,
and pay over the amount so deducted to the appropriate fiscal agency
of the Federal, State, county, municipal, or other government or gov-
ernments which supplied the funds for said work-relief projects;
(c) Post immediately in conspicuous places at its Greenville, South
Carolina, plant and maintain for a period of at least sixty (60) consec-
utive days from the date of posting, notices to its employees stating :
(1) 'that the respondent will not engage in the conduct from which it
is ordered to cease and desist in paragraphs 1 (a) and (b) of this
Order; and (2) that the respondent will take the affirmative action set
forth in paragraphs 2 (a) and (b) of this Order;
(d) Notify the Regional Director for the Tenth Region in writing
within ten, (10) days from the date of this Order what steps it has
taken to comply therewith.
ANI IT' IS YURTHER ORDERED that the complaint be, and it hereby, is,
dismissed in so far as it alleges that the respondent has engaged in
unfair labor practices by advising its employees to withdraw from or
refuse to join the Union; threatening them with lay-off, discharge, or
disciplinary action if they were active in its behalf; promising them
better jobs if they withdrew therefrom; informing union members that
it disliked their attitude because of their activities; and advising em-
ployees that the Union would not benefit them; and by discharging
Coley L. Smith on June 12, 1939, because of his union membership and
activity. '