H & H Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Dec 30, 1949

87 N.L.R.B. 1373 (N.L.R.B. 1949)

In the Matter of H & H MANUFACTURING COMPANY, INC. and
AMALGAMATED CLOTHING WORKERS OF AMERICA, CIO
Case No. 10-C-2259.-Decided December 30, 1949
DECISION
AND
ORDER
On June 20, 1949, Trial Examiner Sidney Lindner issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices 1 and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report, attached hereto. The Trial Examiner also found that
the Respondent had not engaged in certain other unfair labor prac-
tices, and recommended dismissal of those allegations of the complaint.
Thereafter, both the Resopndent and the Union filed exceptions to
the Intermediate Report and supporting briefs. The Respondent's
request for oral argument is hereby denied, inasmuch as the record
and briefs, in our opinion, adequately present the issues and the posi-
tions of the parties.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the National Labor Relations Board has delegated its
powers in connection with this proceeding to a three-member panel
[Members Houston, Reynolds, and Murdock].
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds no prejudicial error was committed. The rulings
are hereby affirmed 2 The Board has considered the Intermediate
'The provisions of Section 8 (1) and ( 3) of the National Labor Relations Act, which
the Trial Examiner herein found were violated , are continued in Section 8 (a) (1) and &
( a) (3) of the Act, as amended by the Labor Management Relations Act, 1947.
2 The 'Respondent contends that the complaint should be dismissed because the Union
was not in compliance with Section 9 (f), (g), and ( h) of the Act at the time the
original and amended charges were filed . We find no merit in the Respondent's con-
tention as this section of the Act requires compliance when the complaint is issued and)
we are administratively advised that the Union was in compliance at that time. See
Southern Fruit Distributors, Inc., 80 NLRB 1283. The Respondent apparently further
contends that the complaint should be dismissed on the ground that it was based upon
alleged unfair labor practices which occurred more than 6 months prior to the date upon
87 NLRB No. 148.
1373;
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Report, the exceptions and briefs, and the entire record in this case,
and hereby adopts the findings, conclusions ,3 and recommendations of
the Trial Examiner, insofar as they are consistent with this Decision
and Order 4
1. In its exceptions, the Respondent contends that the Trial Ex-
aminer was biased and prejudiced in his conduct of the proceeding.
It asserts that he made arbitrary rulings unfavorable to the Respond-
ent, acted as a prosecutor instead of as a presiding judicial officer, and
prevented the Respondent from making a full record. We have care-
fully scrutinized the record and find that it does not sustain these
charges. In our opinion the Trial Examiner conducted the hearing
in this case with fairness and impartiality and there is no basis for any
finding of bias or prejudice on his part against the Respondent.
2. We agree with the Trial Examiner that the Respondent inter-
fered with, restrained, and coerced its employees in the exercise of
.the rights guaranteed in Section 7 of the Act and thus violated Section
8 (1) of the National Labor Relations Act and Section 8 (a) (1) of
the Act,5 as amended, by the following acts and conduct :
which the charges ('ere filed. The Board has heretofore ruled that Section 10 (b) of
the amended Act imposes no limitation upon the issuance of complaints in any case in
which the charges were filed and served within 6 months after August 22, 1947, the
.effective date of the amendments to the Act . Itasca Cotton Manufacturing Company,
, 79 NLRB 1442 . The charges in the instant case were timely filed and served.
3 The Intermediate Report contains certain misstatements of fact and inadvertences,
;pone of which affects the Trial Examiner's ultimate conclusions , or our concurrence
therein. Accordingly, we note the following corrections: (1) The Trial Examiner states
that of 34 employees originally laid off , 11 were nonunion . The record and exhibits reveal
that 36 employees were laid off and 13 were nonunion ; ( 2) After indicating that 4 of 11
nonunion employees returned to work for Patat, the Trial Examiner states that of 7
remaining nonunion employees 6 were reinstated . However, in setting forth the names
of the 6. reinstated employees , he lists 7 people. The name of Lillian Davis was inad-
vertently included by the Trial Examiner , as she did not return to work for the Respondent
after May-21 . Moreover , the records and exhibits disclose that . there were 9 remaining
nonunion employees , when 4 returned to Patat , and 7 of these 9 were reinstated. In
addition to the 6 correctly listed by the Trial Examiner the seventh was Mrs. B. F . McGee ;
(3) The Trial Examiner states that Respondent 's counsel admitted during oral argument
.that Respondent's activities in connection with the petition and letters to withdraw from
,the Union were violative of Section 8 (1) and 8 ( a) (1) of the Act . An examination of
the record , however, reveals that in his argument Respondent ' s counsel merely admitted
a' technical violation by Respondent of this section with regard to th. letters and he
(lid not refer to the petition.
4 The Respondent alleges that a present Board employee , one William V. George, who
is on the staff of the Regional Director for the Region in which this case was heard
and who was on leave of absence without pay at the time , appeared at the hearing as
representative of the Union . No objection was made at the hearing by the Respondent's
attorney to George 's appearance on the Union 's behalf, or to the fact that he was permitted
to question the Respondent ' s president . George did not examine any other witnesses
during the course of the hearing .' The record does not indicate that the Respondent was
prejudiced in any manner by George's appearance in this case or that the testimony elicited
by George affects in any way a determination of the issues involved . While we disapprove
of George 's conduct , we believe that it is a matter for administrative remedy , because
the Respondent has not been prejudiced in any way by this breach of the Board ' s Regu-
lations concerning practice by its employees. -
S References hereinafter made to sections of the amended Act refer also, where appro-
priate, to equivalent sections of the Act prior to amendment , unless the context clearly
indicates otherwise.
H & H MANUFACTURING COMPANY, INC. - 1375
(a) Surveillance of two union meetings by Assistant Superintendent
Roberts ; 6
(b) Superintendent Waitsman's attempt about June 29, 1947, as
employees were reporting to work at the plant, to prevent Union Or-
ganizer Zubal from distributing union leaflets in front of the plant; 7
(c) Superintendent Waitsman's statements in June 1947 to pros-
pective employee Meeler in the presence of employees Watson and
Ruth Gordon "that there was not going to be any union in the plant"
and "before they would have one the plant would not run";
(d) The drafting in the Respondent's office by the office manager 8
of a petition signed by 38 of Respondent's employees stating they did
not want -a union in the plant, which petition was circulated openly
in the plant during working hours in the presence and with the
knowledge of Respondent's supervisors and was received in the
Regional Office on June 30, 1947;
(e) The dictation and preparation of a form letter dated June 23,
1947, by Respondent's president stating that the particular employee
wished to withdraw from the Union, carbon copies of which Respond-
ent's president kept in his desk, and which letters as they were signed
in his office by employees were left with him for forwarding to the
Regional Office.
3. We find, as did the Trial Examiner, that the Respondent did not
discriminatorily lay off the employees involved herein in violation
of Section 8 (a) (3) of the Act, but that the lay-offs during the period
from May 2 to June 11, 1947, were due to the economic reasons asserted
by the Respondent.'
9 With respect to this conduct , we rely on the Trial Examiner ' s finding of intentional
surveillance by the Respondent ' s Assistant Superintendent Roberts and not on his opinion
as to what effect Roberts ' acts of driving past the house where union meetings were being
held may have had on the employees who were present at the time.
7 Member Reynolds would not find this incident to be violative of Section 8 (a) (1) of
the Act . While the employees were entering the plant , Waitsman told Zubal to get away
because he was causing trouble. Member Reynolds believes that this statement does not
constitute interference or discouragement of union activity within the meaning of the Act,
because it was not coupled with any threat of reprisal or promise of benefit.
8 While Margaret Kreider denied that she was the office manager, in view of the fact
that the production records are kept under her supervision and control and she is in
charge of Respondent 's general invoices and purchases and the keeping of its books, in
our opinion she is in effect an office manager, although she may not have that specific title.
The Union contends that, , despite the Respondent 's economic difficulties , its lay-off of
nine union members was discriminatory as the Respondent failed to show any basis for
selecting them . The Union cites Chicago Steel Foundry Company , 49 NLRB 100, 142
F. 2d 306, and Press Co., Inc. v. N. L. R. B ., 118 F. 2d 937. These cases are clearly dis-
tinguishable because the lay-offs in the instant case were made on the basis of the superin-
tendent's study of the plant's operations and he selected employees on those operations
which he considered surplus. Furthermore as the Respondent did not maintain any
seniority standards , efficiency or production records of its employees and there was no
evidence that the line which was laid off contained any more union members than the line
which was retained , the criterion utilized by the Respondent was a fair one.
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. We agree with the Trial Examiner that the Respondent' s failure
to reemploy Warren, Wages, Little, and Nickelson was for just cause;
that the failure to reemploy Camp was because Respondent did not
have available work in Camp's field; and that the reason these former
employees were not reemployed were not discriminatory.
5. The Trial Examiner initially considered Minnie Lou Jones in
the same category as the employees with respect to whom he subse-
quently found discrimination, but recommended that the allegation
in the complaint as to her be dismissed because she admittedly never
applied for reemployment. While it is true that Jones failed to apply
for reemployment, such application was unnecessary because she had
been assured by the Respondent's superintendent that she would
be sent for when she was needed.- In view of the superintendent's
promise to Jones, the fact that the Respondent hired new employees
commencing in June 1947 and failed to show that Jones could not
perform the duties of any of these new people, and for the reasons
set forth in paragraph 6 below which are equally applicable to Jones,"
we find that the Respondent's failure to recall Jones as promised con-
stitutes a violation of Section 8 (a) (3) of the Act. We further find
that such discrimination occurred when the Respondent began its new
hirings in June 1947.
6. The Trial Examiner finds, and we agree, that the Respondent
discriminatorily refused to reemploy Harvil, Seagraves, Sims, and
Elizabeth Jones because of their union activities. We rely upon the
following considerations : (a) the hostility of the Respondent to union
organization displayed in its coercive conduct which continued after
the lay-offs and which violated Section 8 (a) (1) of the Act, as indi-
cated in paragraph 2, above; (b) the Respondent's knowledge of its
employees' union membership and activities which was found as a
fact by the Trial Examiner, and which finding we adopt; (c) the fact
that Harvil, Seagraves, Sims, and Elizabeth Jones were among the
most active in the Union; (d) that they all had previous experience
in the same industry and, with the exception of Harvil,12 had worked
at the Respondent's plant practically from the day it started opera-
tions; (e) that their work was never criticized; (f) that each of them
applied for reemployment on several occasions ; (g) that the Re-
spondent failed and refused to rehire them and gave no valid reason
for its failure so to do; (h) that the Respondent reemployed almost
all the nonunion employees it had laid off; and (i) that there is
10 Capital City Candy Company, 71 NLRB 447; American Linen Service Company, 45
NLRB 902.
11 The only exception to this is clause ( f) of paragraph 0.
12 Harvil commenced working for the Respondent about a month after it began operations.
H & H MANUFACTURING COMPANY, INC. 137T
nothing in the record to show that Harvil, Seagraves, Sims, and.
Elizabeth Jones were unable to perform the work of any of the 26,
new employees whom the Respondent added to its staff from June to
November 1947.
In view of all these circumstances, and upon the entire record in
the case, we conclude that the Respondent knew of the union ac-
tivity of Harvil, Seagraves, Sims,' and Elizabeth Jones and denied.
reemployment to them because of such activity, in violation of Sec-
tion 8 (a) (3) of the Act 13 We further find that such discrimination.
occurred when the Respondent began its new hirings in June 194714
THE REMEDY
Unlike the Trial Examiner, we have found that the Respondent
discriminatorily refused to reemploy Minnie Lou Jones. We shall
order the Respondent, therefore, to offer Minnie Lou Jones immediate
and full reinstatement to her former or a substantially equivalent posi
tion, without prejudice to her seniority or other rights and privileges,,
and make her whole for any loss of pay she may have suffered by-
reason of the Respondent's discrimination, by payment to her of a.
sum of money equal to the amount which she would normally have,
earned as wages during the period from the date of the discrimination
against her, to June 20, 1949, the date of the Intermediate Report
herein, and during the period from the date of this Decision and
Order to the date of the Respondent's offer of reinstatement, 15 less
her net earnings during said periods.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)+
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, H & H Manu-
facturing Company, Inc., its officers, agents, successors, and assigns,,
shall :
1. Cease and desist from :
(a) Discouraging membership in Amalgamated Clothing Workers
of America, CIO, or in any other labor organization of its employees,.
by discriminatorily refusing to reemploy any of its employees, or by
m N. L. R. B. v. Abbott Worsted Mills, 127 F. 2d 438; Quest-Shon Mark Brassiere Co.,.
Inc., 80 NLRB 1149; The Firestone Tire and Rubber Company, 62 NLRB 1316.
14 In this connection, we do not adopt any of the content of the last paragraph of Section
3 E of the Intermediate Report.
"This abatement of back pay for the period between the issuance of the Intermediate.
Report and our Decision and Order follows our practice where, as here, the Trial Examiner
did not recommend the reinstatement of this employee or the award of back pay to her.
877359-50---vol. 87-89
1378 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
discriminating in any other manner with regard to their hire and
tenure of employment , or any term or condition of their employment;
(b) In any other manner interfering with, restraining , or coercing
its employees in the exercise of the right to self-organization, to
form labor organizations , to join or assist Amalgamated Clothing
Workers of America, CIO , or any other labor organization , to bar-.
gain collectively through representatives of their own choosing, to
engage in concerted activities for the purpose 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 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 Emma Harvil , Sallie Seagraves , Eunice Bell Sims,
Minnie Lou Jones , and Elizabeth Jones immediate and full rein-
statement to their former or substantially equivalent positions, with-
out prejudice to their seniority and other rights , and privileges ;
(b) Make whole Emma Harvil, Sallie Seagraves , Eunice Bell Sims,
Minnie Lou Jones , and Elizabeth Jones for any loss of pay they may
have suffered by reason of Respondent 's discrimination against them,
in the manner set forth in the section of the Intermediate Report
entitled "The remedy ," as modified herein;
. (c) Post at its plant in Statham , Georgia, copies of the notice
attached hereto and marked Appendix A.1° Copies of said notice, to
be furnished by the Regional Director for the Tenth Region, after
being duly signed by the Respondent 's representative , shall 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 receipt of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint , insofar as it alleges that
the Respondent discriminated with regard to the hire and tenure of
employment of. Hillman . Camp, J . D. Warren, Elizabeth Wages,
Vaughn Little, and Ida Nickelson , be, and it hereby is, dismissed.
11 In the event that this Order is enforced by 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."
H & H MANUFACTURING COMPANY, INC. 1379
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, we hereby notify our employees that :
WE WILL NOT discourage membership in AMALGAMATED CLOTH-
ING WORKERS OF AMERICA, CIO, or any other labor organization
of our employees by refusing to reemploy them or by discrimi-
nating in any other manner with regard to their hire and tenure
of employment, or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self -organiza-
tion, to form labor organizations, to join or assist AMALGAMATED
CLOTHING WORKERS OF AMERICA, CIO, or any other labor organi-
zation, to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to
refrain from any or all 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.
WE WILL OFFER to the employees named below immediate and
full reinstatement to their former or substantially equivalent posi-
tions without prejudice to any seniority' or other rights and privi-.
leges previously enjoyed, and make them- whole for any loss of
pay suffered as the result of the discrimination :
Emma Harvil Eunice Bell Sims
Sallie Seagraves Elizabeth Jones
Minnie Lou Jones
All our employees are free to become, remain, or refrain from
becoming members of the above-named union or any other labor
organization except to the extent that this right may be affected
by an agreement.in conformity with Section 8 (a) (3) of the
amended Act.
WE WILL NOT discriminate in regard to hire or tenure of employ-
ment or any term or condition of employment against any
employee because of membership in or activity on behalf of any
such labor organization.
H & H MANUFACTURING COMPANY, INC.,
Employer.
By -------------------------------------------
(Representative ) ( Title)
Dated --------------------
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. Milton 0. Talent, for the General Counsel.
Mr. Mortimer H. Freeman, of Atlanta, Ga., and Mr. Earl Hirsh, of Statham,
Ga., for the Respondent.
Mr. William V. George and Mr. Peter Zubal, for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed on November 13, 1947, by Amalgamated
Clothing Workers of America, CIO (herein called the Union), the General
Counsel of the National Labor Relations Board,' by the Regional Director for
the Tenth Region (Atlanta, Georgia), issued a complaint dated June 29, 1948,
and an amended complaint dated August 20, 1948, against H & H Manufacturing
Company, Inc. (herein called the Respondent), alleging that the Respondent
had engaged in and was engaging in unfair labor practices within the meaning
of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor
Relations Act and as reenacted Section 8 ( a) (1) and ( 3) and Section 2 (6)
and (7) of the National Labor Relations Act as amended, Public Law 101,.80th
Congress, 1st Session (hereinafter called the Act). Copies of the complaint,
the amended complaint, the amended charge, and notice of hearing were duly
served upon the Respondent and the Union.
With respect to the unfair labor practices, the amended complaint alleged in
substance, that : (1) on different dates in May and June 1947, the Respondent
laid off and discharged 11 named employees and thereafter failed and refused
to recall, reinstate, and employ the said employees because of their membership
in and activities on behalf of the Union ; (2) from about April 22, 1847, to
date, the Respondent by its officers, agents, and employees, more particularly
by President and General Manager Earl Hirsch, Superintendent Waitsman,
Assistant Superintendent Carroll Roberts, Head Shipping Clerk Charles Huff,
employees Ruth and Watt Gordon, and Edna Jackson, and Carl Patat, and
Arthur Cofer:2 (a) made intimidatory and coercive statements to discourage
union membership and activity and to discourage on the part of its employees
activity for the purposes of collective bargaining and other mutual aid and
protection; (b) interrogated, inquired of, and questioned its employees about
their union membership, affiliation, and sympathies; (c) urged, advised, and
requested its employees to surrender their union membership and withdraw
from union activities and activities for the purpose of collective bargaining
and other mutual aid and protection ; (d) caused in the presence of its employees,
union organizers , and officials to be subjected to harassment and embarrassment;
(e) threatened to close its plant if the union activities of its employees were
successful; (f) spied upon and kept under surveillance union members, officials,
meetings, meeting places, and union activities ; ( g) and made derisive , disparag-
ing, and derogatory remarks and statements concerning the Union , its leaders,
I The General Counsel and his representative at the hearing are herein called the
General Counsel , and the National Labor Relations Board is called the Board.
2 Edna Jackson, Carl Patat, and Arthur Cofer were added to the amended complaint
by motion of the General Counsel , which was allowed over the objection of counsel for
the Respondent.
H & H MANUFACTURING COMPANY, INC. 1381
and its affiliations; (3) by the aforesaid acts the Respondent interfered with,
restrained, and coerced its employees in the exercise of rights guaranteed in
Section 7 of the Act.
The Respondent's answer duly filed admitted the jurisdictional allegations of
the complaint but denied the alleged unfair labor practices. Further the answer
prayed.for the dismissal of the complaint for the reasons that it was filed
without probable cause, that it was being used for the purpose of assisting
the Union in organizing the persons employed by Respondent after the Union
was repudiated in an election by an overwhelming majority despite statements
made by union organizers that they would force the plant to be closed, that
employees would be barred from drawing unemployment compensation, old-age
pensions, and social security, and that when the Union came into the plant
every person that did not vote for it would be fired, together with other state-
ments that were disparaging and untrue about the Respondent.
Pursuant to notice, a hearing was held at Statham, Georgia, on various dates
between September 20 and October 17, 1948, 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 its repre-
sentatives. All parties participated in the hearing and were afforded full
opportunity to be heard, to examine, and cross-examine witnesses, and to intro-
duce evidence bearing upon the issuses. At the opening of the hearing in
addition to the motion to amend the complaint noted above, the General Counsel
moved to strike that part of the Respondent's answer contained in the prayer
alleging misconduct on the part of the Union. Over vigorous objection by Re-
spondent's counsel the motion was granted. Counsel for the Respondent made
a motion for a bill of particulars requesting that he be furnished with the dates,
places, activities, and statements of the Respondent, its supervisory employees,
its other named employees, and agents, alleged to be violative of Section 8 (1)
and Section 8 (a) (1) of the Act. The motion was granted in part and denied in
part. During the course of the hearing, a petition by counsel for the Respondent
to revoke a subpoena daces tecum was denied. At the close of the General
Counsel's case, counsel for the Respondent made motions to dismiss certain
allegations of the complaint as well as a general motion to dismiss the com-
plaint in its entirety. The latter motion was denied. The motion to dismiss
that part of the complaint alleging that Edna Jackson committed violations of
Section 8 (1) as well as Section 8 (a) (1) of the Act was granted withouitj
objection. The motion to dismiss the allegation of the complaint in which it
was set forth that Allen C. Bray was discriminatorily discharged was granted.
All other motions made by counsel for the Respondent were denied. At the close
of the hearing a motion was made to correct the record in several respects and
was granted without objection. The General Counsel moved to conform the
pleadings to the proof with respect to formal matters. The motion was allowed
without objection. Counsel for the Respondent renewed his motions to dismiss
from the complaint the allegation that Charles Huff, Ruth and Watt Gordon,
Carl Patat, and Arthur Cofer were acting for the Respondent. Such motions
were denied. Ruling was reserved on the further motion to dismiss the com-
plaint in its entirety and is disposed of as hereafter appears. Oral arguments
were made at the end of the hearing by both counsel. The parties were advised
of their right to file proposed findings of fact, conclusions of law, and briefs. A
memorandum has been received from the General Counsel and has been carefully
considered.
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. BUSINESS OF THE RESPONDENT
It was stipulated at the hearing that the Respondent, H & H Manufacturing
Company, Inc., is a corporation duly organized under and existing'by virtue of
the laws of the State of Georgia. It is a contractor for other manufacturers
and acts on a cut-make-and-trim basis only. It is thus engaged in the man-
ufacturing, processing, and distribution of men's woolen and flannel pants"
and has maintained at all times its principal office and place of business at
Statham, Georgia. The Respondent in the course and conduct of its business-
operations during the year ending December 31, 1947, which period is repre-
sentative of all times material, has received at its plant in Statham, Georgia,
raw materials consisting mainly of wool and flannel which materials are furnished
and shipped to the Respondent by manufacturers from points outside the State
of Georgia. The value of such raw materials is in excess of $10,000. The
Respondent purchases findings such as zippers, thread, buttons, and pocket
material valued in excess of $50,000, approximately 50 percent of which value,
was received from and purchased outside the State of Georgia and shipped in
interstate commerce to its place of business at Statham, Georgia. During the
same period the Respondent manufactured, processed, and shipped finished
products consisting principally of men's woolen and flannel pants valued in excess"
of $150,000, of which value approximately 90 percent was shipped to manufac-
turers outside the State of Georgia. It is found that Respondent is engaged
in commerce within the meaning of the Act.
H. THE ORGANIZATION INVOLVED
Amalgamated Clothing Workers of America, CIO , is a labor organization and
admits employees of the Respondent to membership.
.III. THE UNFAIR LABOR PRACTICES
A. Background
The respondent corporation started operating its plant in Statham, Georgia,
on January 2, 1947. For several weeks prior thereto it used a number of
employees to move machinery and set up the plant before starting 'actual opera-
tion. Joe Handelsman and Earl Hirsh were each 50 percent stockholders in
the respondent corporation. Hirsh was the secretary and general manager"
of the corporation from January to November 1947 and thereafter became presi-
dent. Hirsh maintained his headquarters at the plant in Statham and was in
charge. of the over-all operation of the plant including the hiring and firing
of all employees. Hirsh traveled occasionally to solicit business. Handelsman
maintained his headquarters in New York City where he contacted manufac-
turers for the purpose of obtaining business for the factory. From the incep-
tion of the Respondent's operation until sometime late in March 1947," it retained
a group of efficiency engineers, to set up the plant and assist it in obtaining the
best production possible. Not satisfied with the results of the efficiency engineers,
allegedly because it was losing money, the Respondent dispensed with their
services and on or about April 4, 1947, hired Paul Waitsman, who had 34 years'
H & H MANUFACTURING COMPANY, INC. 1383
experience in the clothing industry, as its plant superintendent. In addition
to his duties of the actual supervision of the plant's operations, Waitsman
immediately started a study of the operations with a view to increasing efficiency
and effecting economies. The rate of pay of the sewing machine operators with
few exceptions was 521/z cents per hour. Shortly after Waitsman took over
the superintendency of the plant he addressed the employees, advised them that
it was necessary to reduce wages and on or about May 6 their hourly rate was
cut from 521/2 cents to 45 cents .8
B. The inception of organizational activities; alleged interference, restraint, and
coercion prior to lag-offs in May and June 19117
Peter Zubal, Georgia State Director for the Union, came to Statham during
the first week in April 1.947. He remained for 2 weeks contacting the Respond-
ent's employees at their homes or outside of the plant to determine their interest
in organization. He signed up a number of employees to union membership.
The first union meeting was held. on April 29, 1947, at the home of Sallie Sea-
graves, an employee of the Respondent, whose termination will be discussed
hereinafter. Three meetings were held during May 1947, 1 week apart, at the
home of employee Elizabeth Jones, also terminated. Organizational activity
thereafter continued with meetings at the American Legion Hall throughout
1947 and until the Board election in March 1948. In addition to the regular
union meetings, most of the employees participated in discussions for and against
the Union. Such discussions took place in the plant and during lunch periods
in an alleyway at the rear of the plant.4 During the period or organizational
activity 69 employees signed applications for membership in the Union.
On or about May 6, 1947, Hirsh called on Carl Patat, owner of the Statham
Pants Company, whose plant is also located in Statham, Georgia, and Arthur
Cofer, superintendent of the Oconee Garment Company, Bogart, Georgia,5 at
their respective plants to talk to them about his production problems. Patat
and Cofer testified that Hirsh asked them if they would be willing to speak to
his employees regarding production, stating that a talk by them "might do some
good" and the employees "might go to work."
Later that day Patat and Cofer_ appeared at the Respondent's plant. Super-
intendent Waitsman shut off the plant's power and instructed the employees
to gather around the cutting table to listen to speeches by Patat and Cofer.
Patat could not remember too well the contents of his speech. He did testify,
however, that he did not say anything against unions. Cofer testified that he did
not make a speech to the employees. He stated that he was in the plant for about
5 or 10 minutes, that after Patat addressed the employees'he talked to a num-
ber of them who were gathered in a group around the cutting table, and confined
his remarks to production in the Respondent's plant.
Emma Harvil, a former employee of the Respondent, testified that Patat spoke
to them about closed plants in the Statham area ; that he was not telling them
to join' or not to join the Union but that they should go home and think the matter
over. Patat also said that the Union would not hurt his plant or Respondent's
plant, but would hurt the town. Arthur Cofer, according to Harvil, also spoke
' This date was after the Union ' s organizational activities began as detailed - hereinafter.
The alleyway was located between the rear of the plant and Hammond 's Store where
the employees purchased. food and ate their lunches.
Neither of these plants have any connection with the Respondent.
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the employees, stating that the Union coming in would not bother him because
his plant was closing down. The undersigned credits Harvil's testimony regard-
ing the speeches of Patat and Cofer.
The Respondent in its amended answer denied that Carl Patat or Arthur
Cofer committed any unfair labor practices as alleged in the amended com-
plaint as agents in behalf of the Respondent, further, that neither Patat nor
Cofer was authorized to act for the Respondent. That Respondent is respon-
sible for the speeches of Patat and Cofer is too clear to warrant much dis-
cussion. The speeches were made to Respondent's employees at the request
of Hirsh. They were made on Respondent's premises during working hours
in the presence of Respondent's supervisory employees. As a matter of fact,
the employees were directed by Waitsman to listen to the speeches, and were
paid for the time thus spent. Thus it is seen that Patat and Cofer were acting
in the interest of the Respondent and upon its explicit instructions to address
the employees. The undersigned finds that Patat and Cofer were agents of
the Respondent within the language of Section 2 (13).'
Having found that Patat and Cofer were, the agents of the Respondent, the
further question arises: Were the speeches protected by Section 8 (c) or were
they in violation of Section 8 (a) (1) of the Act? The General Counsel con-
tends in his brief that the speeches of Patat and Cofer in their implications
suggested that the Respondent would close its plant if the union organization
was successful and that therefore the speeches contained a veiled threat of
reprisal. According to the credited testimony of Harvil, Patat said that suc-
•cessful union organization would not hurt either his plant or Respondent's plant.
He did state that it would hurt the town. Can it be said that by this remark
.a veiled threat of reprisal was contained in the speech? The undersigned
thinks not and finds the contention of the General Counsel with regard to Patat's
speech to be without merit. Cofer, according to the credited testimony of Har-
vil, mentioned nothing with respect to the Respondent's plant but did state
that his (Cofer's) plant was shutting down irrespective of the outcome of
union organization. The undersigned finds that Cofer's speech did not con-
tain any threats of reprisal or promises of benefit and is protected within the
meaning of Section 8 (c) of the Act.
The following day, May 7, at about 3 p. m., Hirsh gathered the employees
together and addressed them. Hirsh had prepared a written speech. Hirsh
testified that he did not read the speech but referred to the written document
from time to time only to refresh his recollection. The following is the written
speech of Hirsh :
I want to say a few words to you people merely to discuss something
important to both of us. First of all, I want you to know that I have the
welfare of you people at heart. I know that in the long run you will find
this to be true.
I want to say here and now that I am not taking any part in what is
going on inside and outside of this plant. Naturally rumors have come
to my attention. They are strictly rumors, as far as I am concerned. I
am not interested in going into the parts played by any of you. Whatever
you do is your decision. I merely want to bring a few facts to your at-
tention. (If you people feel you want to join a union, that is up to you.
6 See Perry Norvell Co. (United Shoe Workers, C. I. 0.), 80 NLRB 225. See also
N. L. R. B. v. Mylan-Sparta Co., 166 F. 2d 485 (C. A. 6).
H & H MANUFACTURING COMPANY, INC. 1385
If you feel there are advantages you can gain, you can feel free to do what
you want. I feel that in the long run, we can all be happy working together
discussing our problems as we have in the past.)
Let me tell you about the economic conditions today in the garment in-
dustry. You people are smart enough to understand this without any-
thing from me as you can see for yourselves that almost every plant in this
section is closed. The one remaining is closing in a week and has already
reduced its operators to one-half. These owners are not mean-they are
not trying to hurt the employees. Business conditions have forced them
to close. You all know some of these owners personally. Ask them for
the truth. These conditions are the worse this country has ever known.
Now, why aren't we closed? Simply because the owners are not sleeping.
We are working day and night to keep the plant operating. As you see, we
are only working hand to mouth, but at least you people eat at the end of
the week. No, not as much as you would like or as much as I would like
you to, but at least, you are among the fortunate to be working.
You people must know that we are turning out about 200 dozen pants per
week. We must double this amount in order to meet our pay roll and ex-
penses in operating this factory. This is not your fault entirely today.
At one time there were sufficient piece goods to turn out this amount. To-
day, however, we are only running from hand to mouth because of the piece
goods situation. This is not my fault either. It is the present economic
condition of the country. I am trying to keep this factory going instead of
closing down so you people will at least have something at the end of
the week. Under present conditions, I am losing about $2,000 per week.
Let's assume we ran out of cloth and I was forced to close. Are there any
factories operating where you could obtain a job? This way, I'm losing
financially. How long can anyone keep this up?
I ask any of you how can I do more. Would any of you do as much if you
were in my place? I think not.
I ask you folks, think twice before you judge me. This picture could
change any day. It could last awhile. Your guess is as good as mine. If
we get sufficient cloth, at least, you can make production and have a nice
check at the end of the week.
Bear with me folks. I am doing my best. I may have to lay off people
from time to time or will close down for awhile. I'm trying not to. I am not
superhuman. I can only do my best.
No plant can operate without a profit. We must turn out no less than 4500
units weekly to come out.
No one on God's Green earth, no one can operate this plant without piece
goods. No matter what happens on the outside, we can only operate success-
fully if the owners are able to get piece goods. No one can stop the flow of
goods if we are able to obtain it. Without goods we must close. Please give
us your wholehearted support to -help in the most trying times. .
Hirsh testified that as he was making the speech to the employees he remembered
that he had been asked whether the Respondent had three other plants up north.
He thereupon supplemented his prepared speech and stated that the Respondent
did not own any plant in the north nor did he or his associate, together or individ-
ually. He stated that he was willing to go out and borrow $5,000 to donate to
any local church providing the other side [the Union] would also put, up $5,000
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if they could prove any of the statements they were making. Hirsh's testimony
-regarding the speech was corroborated in some respects by Harvil as well as by
other General Counsel and respondent witnesses. The undersigned finds that
Hirsh's speech to the employees on May 7 was substantially as contained in the
written speech set forth above and as he testified regarding his supplementary
remarks. The undersigned further finds that the speech did not contain any
threats of reprisal or promises of benefit and is protected by Section 8 (c) of the
Act.
As heretofore noted during the height. of the organizational campaign at the
Respondent's plant the employees participated in discussions both for and against
the Union. The amended complaint alleges that Head Shipping Clerk Charles
Huff and employees Ruth and Watt Gordon, from about April 22,1947, by intimida-
tory and coercive statements, interrogation, urging, advising, and requesting
Respondent's employees to surrender their union membership, violated Section 8
(1) and 8 (a) (1) of the Act. In his bill of particulars the General Counsel set
forth that the said named employees participated in this action during May and
June 1947. It would be well at this point to determine the responsibility of the
Respondent for the acts of Charles Huff, Ruth and Watt Gordon.
. It is the contention of the General Counsel that the Respondent is responsible
for the conduct of Charles Huff in that it accepted and acted upon information
given to it by Huff and approved and ratified Huff's conduct ; further, that Huff
was in charge of shipping and received a higher rate of pay than the "helper"
who worked under him. The Respondent's shipping department has only two
employees, Huff and a helper, James Akins. Huff testified without contradic-
tion that he does not supervise Akins but merely advises him what they are to
do and they usually work together. Huff is an hourly paid employee whose rate
of pay is 70 cents per hour. While it is true that Huff received a higher rate of
pay than the "helper" and was in charge of shipping nevertheless it appears that
the "helper" worked with Huff and not under him. He punches a clock as do all
other production and maintenance employees. Huff does not hire or fire em-
ployees nor does he have power to recommend such actions. The undersigned
finds that Huff was not a supervisory employee within the definition of the Act.
Further, with respect to this contention, there is no evidence that the Respondent
accepted and acted upon information given to it by Huff. As previously noted, the
discussions regarding the Union took place in the plant with most employees
participating. It is clear from the record that Huff, who was not a union mem-
ber, was outspoken in his opposition to the Union. The record does not reveal,
however, that the Respondent encouraged, authorized, or ratified Huff's conduct
in the course of his discussions with his fellow employees or that it acted in such
manner as to lead the employees to believe that Huff was acting for it. Under
such circumstances the antiunion conduct of a nonsupervisory employee is not
attributable to the Respondent. See Mylan-Sparta Company, Inc., 78 NLRB 1144.
The undersigned finds this contention of the General Counsel to be without merit.
It is clear from the record that Watson and Ruth Gordon,? husband and wife,
were production and maintenance employees in the plant. The General Counsel
contends that the coincidence of the alleged acts of hostility by the Respondent
with an increase in pay to Ruth Gordon ; the failure of the Respondent to reduce
the pay of Watt Gordon during a general reduction ; the advance knowledge by
Ruth Gordon about lay-offs ; and the admission that the Gordons had transmitted
4 Watson Gordon is referred to in the record and herein as Watt Gordon.
H & H MANUFACTURING COMPANY, INC. 1387
information about union membership creates an inference that the Respondent
instigated or approved and ratified the conduct of the Gordons or that it implies
agency. Ruth and Watt Gordon were both active in the Union at the inception
of its organization in the Respondent 's plant. For some reasons , unexplained
in the record , both broke with the Union and took on a very definite hostile attitude
toward the Union thereafter . They, as a matter of fact, voiced their hostility
to the Union in discussions with fellow employees both inside and outside the
plant. The raise of pay given Ruth Gordon was explained by Waitsman as
follows ; about May 16 , the Respondent changed its method of paying employees
from an hourly rate to a piecework rate where the employee met certain stand-
ards of production . Ruth Gordon was a spare hand in the plant and was shifted
around to different operations as the necessity arose. Therefore since she did
not remain at one operation for any period of time which would enable her to
"make production" she was given an increase in her hourly rate of pay. Waits-
man's explanation for the increase in pay given to Ruth Gordon is credited.
The pay-roll records in evidence reveal that when the hourly pay was reduced
from 521/2 cents to 45 cents, referred to hereinabove , a number of employees re-
tained their old scale of pay. Watt Gordon , a bundle boy who did not work on
production , received the rate of 60 cents per hour during his entire period of
employment . He was in the group whose pay rate was not cut. In the opinion
of the undersigned no special significance can be attached to this.
,While it appears that Ruth Gordon during a discussion with another employee,
Kathleen Greeson, mentioned that Greeson should get out of the Union or she
-would be fired ,'. the undersigned does not believe that such a remark by one
employee to another is proof of the fact that Ruth .Gordon had advance knowledge
of the lay-offs, and he so finds.
There is no evidence that Respondent admitted that Ruth or Watt Gordon
transmitted any information to it regarding employees in the Union other than
themselves . Watt Gordon admitted that during a conversation with Hirsh, he
told the latter that he had joined the Union, that he was not satisfied , and asked
how he could get out. Hirsh told him there would be a secret ballot held at some
future date at which time he could then decide about the Union.
Although it is clear that Ruth and Watt Gordon participated in antiunion
conduct, since both were nonsupervisory employees and the record does not con-
tain any evidence to show that the Respondent encouraged , authorized , or ratified
:such antiunion conduct or acted in such manner as to lead their other employees
to believe that Ruth and Watt Gordon acted for it, their conduct is not attributable
to the Respondent . See Mylan-Sparta Company, Inc., supra . In view of these
findings it is considered unnecessary to summarize the evidence of acts and state-
ments attributed to Fluff and Ruth and Watt Gordon , and the undersigned will
recommend hereinafter that the allegations of the complaint to the effect that
Charles Huff , Ruth and Watt Gordon from about April 22, 1947 , to date, engaged
in unfair labor practices within the meaning of Section 8 (1) and Section 8 (a) (1)
of the Act be dismissed.
The amended complaint alleges that the Respondent conducted acts of sur-
veillance by its supervisory employees , Hirsh, Wai.tsman , and Roberts. The
Respondent 's plant is a one-story building approximately 150 feet by 100 feet.
It does not contain any partitions except for the office located at the front of
the plant which houses Hirsh and the office staff. It is a well -lighted plant with
8 Kathleen Greeson , a anion member , was not affected by any of the lay-offs and has been
steadily employed.
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
windows on all sides. There is an alleyway approximately 15 feet wide at the
rear of the plant. As heretofore noted, during the organizational campaign,
the union organizers and employees, particularly during lunch periods, discussed
the pros and cons of the Union in this alleyway and in Hammond's Store which
was located on the other side of the alleyway directly opposite the plant's rear
window. Peter Zubal testified that on several occasion he saw Roberts and
Waitsman looking out of the corner window at the rear of the plant observing
him while he was talking to Respondent's employees either at Hammond's Store or
in the alley in his efforts to enlist them into union membership. Zubal's testi-
mony in this regard was corroborated by several other witnesses ° and is credited.
Waitsman admitted that he looked out the rear window of the plant and saw
employees in the alleyway gathered there to eat lunch. He never noticed any
employee meetings. Waitsman testified also that it was his habit to order
things from Hammond's Store and he accomplished this by yelling out of the
rear window and his order would be brought to him. The record also indicates
that certain materials were kept near the cutting table where the rear windows
are located and that it was necessary for Waitsman to obtain these materials
from time to time and in doing so he would of necessity pass the rear window.
Furthermore, his duties kept him in and about the machines and in going from
machine to machine or to the cutting table he was bound to pass the rear window
and perhaps look out. Roberts categorically denied that he spied on any union
meetings. No testimony was offered. by the Respondent regarding his looking
out of the rear window of the plant.
Zubal also testified credibly that on two occasions while the-Union was hold-
ing meetings at employee Elizabeth Jones' home on Broad Street in Statham, he
observed Roberts drive past in his car at a very slow rate of speed and look in
the direction of Elizabeth Jones' house. On the first occasion a number of em-
ployees were gathered outside the house before going into to meeting and upon
seeing Roberts' car drive by slowly, called out his name. Roberts did not stop
the car but drove up beyond the house a short distance, made a U-turn, and
again went by at the same slow rate of speed. Roberts was not seen again at
any time during the course of the evening. On the second occasion which also
took place before a union meeting scheduled at Elizabeth Jones' home, the em-
ployees were assembled outdoors preparatory to having a group picture taken.
Zubal testified that Roberts and his wife, Dorothy, an employee in the plant,10
were in the car which again drove past the Jones' house at a very slow rate of
speed. Zubal called to Roberts inviting him to come into the house. Roberts
drove up the street beyond the house, made a U-turn, came back and drove away.
Roberts admitted driving his car past Elizabeth Jones' house on the second
occasion testified to by Zubal. He stated, however, that he and his family were
on their way to the movies that evening, that it was early and they were driving
around town before going into the movies. That there were only two or three
streets in Statham that they could drive on and Broad Street is one of such
streets. Roberts neither admitted nor denied driving past Jones' house on the
first occasion testified to by Zubal.
With respect to the acts of surveillance by Waitsman and Roberts looking
out the rear window of the plant the Union chose to meet Respondent's employees
° These witnesses were former employees Martha Rowden Hayes , Hillman Camp, and
Emma Harvil.
11 Dorothy Roberts was included in the lay -off of May 19 which will be detailed herein-
after but was recalled at a later date.
H & H MANUFACTURING COMPANY, INC. 1389
in the alley which place was clearly visible from the rear window of the plant.
Although Waitsman's explanation for being there is suspect yet his duties re-
quired him to move about the plant, particularly in, the vicinity of the cutting
table and such explanation is not wholly unreasonable.. Even accepting the
fact that Roberts and Waitsman looked out of the window and saw what was
going on when the union organizers were talking to employees, such evidence
in the opinion of the undersigned is insufficient to warrant a finding of intentional
surveillance. See Boreva Sportswear, Inc., 73 NLRB 1048.
With respect to the acts of surveillance of Roberts in driving past Elizabeth
Jones' home on the two occasions when union meetings were being held there,
it is most significant that Roberts, who testified he teas out for a ride should
choose Board Street, a dirt road, and make a U-turn in order to drive past the,
Jones house twice. It is also noted that the route taken by Roberts to get to
the movie house was a rather circuitous one. The undersigned does not credit
Roberts' explanation for driving on Broad Street and finds that he intentionally
drove past the Jones' home on the two occasions when union meetings were being
held there in order to spy on the meetings.11
Certainly Roberts' acts of driving past the Jones home when union meetings
were being held there must have served to foster the impression on the employees
who were there and saw him, that he was doing this to spy on the union meetings.
This act thus constituted interference in violation of the Act. See Harold W.
Baker Company, 71 NLRB 44.
C. The lay-offs in May and June 1947
Over the period from May 2 to June 11, 1947 , the Respondent , according to the
pay-roll records in evidence , laid off 34 employees . Included in this group are
the 10 named employees alleged in the amended complaint to have been discrimi-
natorily discharged . Since their timing and the Respondent 's purported reasons
therefor lend themselves to such treatment they will be considered as a group.
The Respondent in the cases of several of the terminated employees denies knowl-
edge of their union membership and activities . Hirsh admitted however, as
did Waitsman and Roberts , that they heard rumors about the Union and about
employees who had become members , practically from the inception of the
organizing campaign .. Furthermore , in a plant as small as the Respondent's, the
majority of whose employees and management officials live in a city , the popu-
lation of which is only 600, rumblings among the employees are certain to reach
the management and become generally known. It is found from all of the
surrounding circumstances that Respondent had knowledge of its employees'
union membership and activities . N. L. R. B. v. Abbott Worsted Hills, 127 F.
2d 438, 440 ( C. A. 1) ; Quest-Shon Mark Brassiere Co., Inc., 80 NLRB 1149; The
Firestone Tire and Rubber Company, 62 NLRB 1316.
Hillman Camp entered Respondent 's employ when the plant started operating
in January, 1947, as a mechanic 's helper under the GI training program spon -
sored by the Veterans Administration . On Thursday , May 1, Canip told Waits-
man that he would like to be off until Monday. When Waitsman asked why
he did not take off, Camp said that because he was on the GI training program,
he could not without an excuse to the Veterans Administration . Upon reporting
11 See Public Service Corporation of New Jersey, 77 NLRB 153, where the Board held
that eavesdropping by a supervisor upon organizational activity was violative of the Act
notwithstanding the fact that the employees were unaware of the eavesdropping and the
further fact that no discrimination resulted therefrom.
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for work the next day, Camp was asked by Waitsman why he had not stayed
out. Camp repeated that he could not without an excuse. Later that day
o Hirsh asked Camp if he could obtain -a 30-day leave from his training because
he was to be laid off due to the lack of mechanical work. Hirsh told Camp
that if there was any work for him in the interim he would be called back. He
was never reemployed by the Respondent. Camp signed a union membership
application on April 29, attended several meetings and talked union to some of
the employees. Otherwise he was not particularly active. There is no evidence
of any complaints concerning his work.
J. D. Warren was employed by the Respondent in December 1946 to help move
machinery and set up the plant prior to actual operation. In January 1947
when the plant started operating Warren was assigned to the cutting table to
spread cloth and remove bundles. Warren joined the Union on April 29, 1947,
and attended several meetings. Zubal testified that Warren gave him a number
of contacts and assisted Zubal in locating employees' homes. On or about May 6,
Warren was transferred to a pressing job. Warren testified that he was never
told by anyone in management that his work was not satisfactory. Hirsh, on
the other hand, testified that on three.or four occasions it was necessary to talk
to Warren about complaints that he had received because the cloth on being
removed from the cutting table and placed into bundles was not being taken off
properly, with the result that the finished pants were shaded. Hirsh testified
also that he talked to Warren about "fooling around." Ralph Dunahoo, a cutter
in the Respondent's plant, testified that he had to complain to Hirsh about
Warren's slowness at the cutting table. Warren did not impress the undersigned
as a reliable witness. The undersigned credits the testimony of Hirsh and
Dunahoo regarding him. Warren was in the group of 22 employees laid off by
Waitsman on May 19, because of the shortage of material and lack of work. He
worked again on May 21 and 23, and was finally terminated on May 26. He
has never been reemployed.
Minnie Lou Jones worked for the Respondent as a sewing machine operator
welting back pockets, from the time the plant opened in January 1947 until
May 19. She was in the group called into the office by Waitsman and told
that there was not sufficient work, that they were to be laid off for a period
and would be called back. Jones worked again on May 27 and 28, and has not
been reemployed since. Jones joined the Union on May 8, attended several
meetings, and talked to employees in and outside of the plant regarding the
Union. Jones had 3 years' experience in practically every phase of the pants
manufacturing industry before entering Respondent's employ. There is no evi-
dence of any complaints concerning her work.
Sallie Seagraves entered the Respondent's employ in January 1947, when the
plant started operating. She worked as a watch pocket setter and also helped
out on pleating and putting in other types of pockets until May 19, when she
was laid off. She has not been reemployed. Seagraves joined the Union at
the first meeting which was held at her home the night of April 29. She also
told a number of employees in the plant that there would be a meeting at her
home that night. Seagraves testified that during the period of her employ-
ment her work was never criticized and that Hirsh had in fact praised it.
Waitsman testified that her work was "all right," but slow. Hirsh -denied
praising Seagraves' work and also ,'claimed she was slow. When questioned
H & H MANUFACTURING COMPANY, INC. 1391
whether she was a faster operator than Hattie Mae Atkins." Seagraves answered
that she only knew that she did lots of work that came from Akins' line and
that another employee helped Akins do her pleating. Seagraves had 10 years'
previous experience in the industry in various operations. Inasmuch as there
was no shortage of help, but on the contrary, as will be detailed hereinafter, the
plant was overstaffed, it is significant that the Respondent never criticized
Seagraves for slowness while she was employed. The undersigned does not
credit the testimony of Hirsh and Waitsman herein.
Eunice Bell Sims worked for the Respondent from January 1947 until she was
laid off by Waitsman on May 19, with the group of employees as described supra.
For the first 2 months of her employment Sims worked as a pocket sewer,
thereafter she did side-face stitching. Sims had 2 years' previous experience
in the clothing industry. Sims signed a membership application card in the
Union at the first meeting on April 29, and regularly attended other meetings.
Although Hirsh testified that when Sims applied for reemployment in August,
he told her that she was a slow worker, there is no evidence that she was ever
criticized during the period of her employment and the undersigned- does not
credit Hirsh's testimony in this regard. She was never reemployed.
Elizabeth Wages was employed by the Respondent from January 1947 until
her lay-off on May 1.9. She worked as a back pocket corder and had 7 years'
previous experience in the clothing industry. Wages joined the Union on April
29, attended all meetings, and was a member of the organizing committee. She
was very active in talking union to the employees inside and outside the plant.
Wages testified that her work was never criticized. Waitsman testified that
Wages was not a satisfactory employee stating as a reason that on one occasion
in May he gave her some additional work to do, but that she refused to do it.
Wages, according to Waitsman, stated that the efficiency engineers told her
she did not have to do it.13 Wages testified that she saw Hirsh in the latter part
of June regarding her unemployment benefits and the subject of her refusal to do
special work for Waitsman came up. According to Wages, she asked that Hirsh
call Waitsman into the office to face her and that Waitsman at that time denied
that she had refused to do special work and also denied that he told Hirsh about
it. Wages did not impress the undersigned as a reliable witness. The under-
signed credits Waitsman's testimony regarding Wages' refusal to do special
work. She was not reemployed.
Emma Harvil began work for the Respondent in late February 1947, as a
loop tacker. She had 4 years' experience in the clothing industry in various
operations such as serging, inspecting, trimming, and tacking. Harvil joined
the Union at the first meeting on April 29, became a member of the organizing
committee, and in addition to proselytizing for the Union at the plant, talked
with employees at their homes after working hours in efforts to get them to join
the Union. It is undisputed that Harvil's work was never criticized, but on the
contrary Waitsman had complimented her on her work. Harvil testified that
on Friday, May 23, Waitsman told her not to report for work on Monday and
Tuesday. However, she received a message on Monday night to come in Tuesday.
11 Akins performed the same operation as Seagraves on the opposite line. The Re-
spondent ' s plant was set up with two lines of operators facing each other ; the operators
on one line performed the same operation as their counterparts on the opposite line.
13 The efficiency engineers were no longer in the employ of the Respondent when this
incident occurred.
1392 DECISIONS ,OF NATIONAL LABOR RELATIONS BOARD
Reporting as per instructions on Tuesday, she found her machine being repaired
and did not do. any work until about 4 p. in. On Wednesday, Harvil did not
work because of repairs on her machine. Upon reporting Thursday morning,
Waitsman told her that her machine was still down, and to come back Friday.
Early Thursday evening, Harvil in the company of two other employees, went
to the plant to inquire if they would work the next day, Decoration Day. Harvil
saw another employee working at her machine, which was supposed to be under
repair, and brought this to Waitsman's attention. On Friday, Harvil was told
there was no work for her and to pick up her pay check at 3 p. in. That after-
noon Hirsh told Harvil that he had to lay her off because of the lack of material,
but hoped to call her back soon. According to Harvil, he emphasized the fact
that she was a faithful and loyal worker and that he wanted her back. Harvil's
testimony herein is credited. She has not been reemployed.
It was the Respondent's contention at the hearing, that Harvil was a temporary
employee. Harvil immediately prior to coming to work for the Respondent, was
employed by Carl Patat." Hirsh testified that it was his practice to hire Patat's
employees for temporary periods and only after he cleared the hiring with Patat
and no objection was made. According to Hirsh, he told this to Harvil when she
came to work for the Respondent and because she was deemed to be a temporary
employee she was not permitted to participate in the employees' insurance plan
which was then in effect 15 Hirsh admitted, however, that he did not talk to
Harvil about the Respondent's insurance plan at the time she was employed.
Harvil denied that she came to work for the Respondent on a temporary basis.
She testified that she did not Participate in the insurance plan because she had
plenty. Harvil's denial and her further testimony is credited and the under-
signed finds that she was not a temporary employee.
Elizabeth Jones began work for the Respondent at the request of Assistant
Superintendent Roberts in January 1947, putting in back pockets. She had
more than 10 years' experience. On May 19, Jones was told by Waitsman that
there would be no work for her the remainder of the week. She worked again
on May 26, 27, and 28 when she was laid off and has not been reemployed. Jones
became a member of the Union on April 29. She was on the organizing com-
mittee. Three union meetings during May 1947 were held at her home, and as
heretofore found, two of the said meetings were spied on by Roberts. It is
undenied and the undersigned finds that Jones' work was praised by Handels-
man and Roberts.
Jones testified that about a clay after her lay-off she met Waitsman outside the
plant and told him she knew she was laid off because she was a member of the
Union. Waitsman did not reply directly to this statement, but according to Jones,
said the Union was no good. Waitsman, testifying regarding his version of the
conversation, stated that he told Jones she was laid off because the plant did not
have sufficient woolens ; that as a member of the Amalgamated who always car-
ried a card, he would not speak against the Union. Waitsman's testimony in this
regard is not credited. Jones impressed the undersigned as a reliable witness
and the undersigned finds the conversation between Waitsman and Jones took
place substantially as testified to by Jones. Waitsman's remark herein was an
14 Patat's plant was closed down from about January to June 1947, except for short
periods of a day or two.
15 The Respondent had a hospitalization insurance policy whereby an employee was
covered if he paid part of the premium which was matched by the Respondent. Employees
were eligible for the insurance after 30 or 60 days in the Respondent's employ, Hirsh
was not certain of the period, and it was voluntary on their part to participate.
H & H MANUFACTURING COMPANY, INC. 1393
expression of opinion regarding the'Union and is found by the undersigned to be
protected by Section 8 (c).
Vaughn Little began work for the Respondent in December 1946, when the'
plant was being rearranged prior to actual operation. In January 1947, Little
was assigned to the cutting table to spread cloth and remove bundles. Little
joined the Union on April 29, attended meetings, and called on employees at their
homes with Myrtice Adams, a union organizer. Little was laid off on or about
May 23, and was not reemployed.
Waitsman testified that he had to talk to Little on several occasions and
admonish him to "cut the foolishness." On one of these occasions Little called
Waitsman a profane name. Hirsh also testified that lie observed Little fooling
around and spoke to him about it several times. Dunahoo, the cutter, testified
that he found it necessary to complain to Hirsh about Little's slowness at the
cutting table. Although Little testified that his work was never criticized, the
undersigned does not credit this testimony and finds that he was admonished for
"fooling around" and that his work was criticized.
Ida Nickelson worked for the Respondent from January 1947 to June 11, 1947,
when she was terminated. She was a trimmer and inspector. Other than join-
ing the Union and attending a few meetings, Nickelson was not active.
Nickelson testified that she was never told that she was slow or that her work
was criticized. Hirsh on the other hand testified that on or about May 22,
shortly after the first group of employees was laid off by Waitsman, he talked
with Nickelson about her slowness and the fact that he was going to let her off.
Nickelson, according to Hirsh, pleaded that she needed the job and asked to be
kept on. Hirsh then gave her several more weeks' work. Roberts testified
that the quality of Nickelson's inspection work was inferior to employees' who
had been laid off and talked with Waitsman about this. Roberts recommended
that Nickelson's place be given to Mrs. K. McGee, a laid-off employee who in the
opinion of Roberts was a better inspector. Waitsman also testified that Nickelson
passed trousers through inspection which were unacceptable. The undersigned
credits the testimony of Hirsh, Roberts, and Waitsman herein.
It is the Respondent's contention that the lay-offs of the employees above de-
scribed were justified by legitimate business reasons. Hirsh testified that in the
latter part of April he was advised by the banking firm which was assisting in
the financing of the business and in factoring the Respondent's accounts, that
the business was in a critical condition financially.16 Hirsh talked with Waitsman
about cutting the plant's overhead and running expenses.'' Hirsh went to New
York on May 10, to see if additional work could be obtained to keep the plant
running and to discuss with Handelsman the continued operation of the plant.
When it was found after several days that sufficient work could not be obtained
to maintain the plant as it was then operating and because of the financial con-
dition, they decided to lay off a number of employees. Thus on May 19, Hirsh
spoke to Margaret Kreider, his secretary, and instructed her to tell Waitsman
16 That Respondent was losing money in its operation of the plant was corroborated by a
certified public accountant ' s report received in evidence , which showed that for the period
from January 1947 to March 31, 1947 , Respondent suffered a net total loss of over
$15,000. An oral report of these facts was made by the accountant to Hirsh on or about
May 1.
17 It was about this time, as heretofore noted, that Waitsman made a speech to the
employees about the Respondent ' s financial situation and reduced most salaries from 521
cents to 45 cents per hour.
877359-50-vol. 87-S9
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to lay off a line of employees 18 Waitsman testified that shortly after the receipt
of Hirsh's message, he pulled the time cards of about 22 employees whom he con-
sidered surplus as a result of his study of the plant's operations, called them into
the office, told them of Hirsh's message and the fact that there was a material
shortage in the plant, and that they were being laid off. It is noted that the Re-
spondent did not have any seniority standards, nor did it keep any efficiency or
production records of its employees. Hirsh returned to the plant from New York
en May 22, and after a further talk with Waitsman regarding the number of
people laid off, it was decided to lay off another group. During the period from
May 22 to June 11, the Respondent laid off 11 employees. A total of 34 employees
were laid off from May 2 to June 11.
The General Counsel contends that the lay-offs of the above-described employees
were discriminatory for the following reasons: (1) timing, the lay-offs took place
at the peak of the organizational campaign and shortly after the first union
meeting; (2) included in the group of employees laid off were Seagraves and
Elizabeth Jones, at whose homes union meetings were held, as well as several
members of the organizing committee; (3) a disproportionate number of union
people were laid off; (4) there was need for the services of the laid-off employees
as evidenced by the fact that the plant worked overtime and new hirings were
made; and (5) the nonunion employees laid off were rehired.
As found hereinabove, the timing of the lay-offs and inclusions of employees
who were members of the organizing committee and at whose homes union meet-
ings were held is as contended by the General Counsel.
Prior to the lay-offs approximately 66 percent of the employees had signified
their intentions to become union members by signing application cards. Of 34
employees laid off, 23 or 67 percent were union, so that it cannot be said that a
disproportionate number of union over nonunion employees were included.
The pay-roll records in evidence reveal that the amount of overtime worked
prior and subsequent to the lay-offs was about the same. Hirsh testified that
it was necessary for some of the employees to work overtime after the lay-offs
because the plant was operating with a reduced crew and the Respondent found
it more economical to work an employee overtime for several hours and pay him
the time and one-half rate rather than hire another employee for the entire
week and not keep him busy. Hirsh also explained that inevitably some em-
ployees are out during a workweek either sick or farming and the other operators
get behind in their work and of necessity work overtime to catch up. There are
also times when a bundle is not cut or sewed properly and is taken out of the
line, put aside and the catching up on these various operations is done either in
the evening or on Saturday. Hirsh's testimony herein is credited and the under-
signed finds no merit to this contention of the General Counsel.
While it is clear that a number of new hirings were made over a period of time
subsequent to the lay-offs, the undersigned does not consider this sufficient proof
of the fact that there was need for the services of the laid-off employees at that
time. It is also true that most of the nonunion employees laid off during the
period from May 2 to June 11 were rehired at later dates.
In the opinion of the undersigned, the evidence offered by the Respondent proved
that it was losing money in its operation of the plant and that for continued
existence it was economically necessary to cut its production staff. The testimony
of several General Counsel's witnesses also tends to support the contention of
18 The record is not clear as to the number of employees in a line.
H & H MANUFACTURING COMPANY, IN C. 1395
the Respondent that there were periods prior to the lay-offs when employees. sat
at their machines with no work to do.
The undersigned is not unmindful of the evidence that the lay-offs followed
closely on the heels of the organizational drive of the Union and its first meet-
ing; that included in the lay-offs were the two employees at whose homes union
meetings were held, as well as some members of the organizing committee ; that
Respondent kept two union meetings under surveillance; and as hereinafter
found, several union employees were subsequently denied reemployment for dis-
criminatory reasons, whereas most of the laid-off nonunion employees were re-
hired. However suggestive of discriminatory motivation these circumstances may
be, the undersigned finds, nevertheless, that they are insufficient to overcome the
affirmative evidence that the lay-offs were due to the economic reasons asserted
by. the Respondent'" Accordingly, the undersigned will recommend that the
allegation of the amended complaint that the Resopndent in violation of Section
8 (3) and S (a) (3) of the Act discriminatorily laid off and discharged the 10
employees heretofore described, be dismissed.
D. Other interference, restraint, and coercion
The organizational campaign of the Union continued after the lay-offs here-
inabove described. Zubal testified that about 7: 30 a. in. on May 29, in the
presence of Myrtice Adams, another'union organizer, Paul Jones, a resident of
Statham, and Harvil who was not working that day, he was in front of the plant
distributing leaflets 20 to employees reporting for work. As Waitsman ap-
proached the entrance, Zubal gave him a leaflet. Waitsman, according to Zubal,
asked, "Who are you?" Zubal identified himself as a representative of the Union,
whereupon Waitsman said he was an Amalgamated member for over 30 years,
that he was acquainted with a number of the Union's officers, that he knew more
about the Amalgamated than did Zubal, and that after a 30-year membership
"he found out it was no good." Zubal then asked Waitsman why the Respondent
sewed union labels in its garments, if the Union was no good. Waitsman denied
that the Respondent did, whereupon Zubal showed Waitsman a union label that
he had obtained from one of the employees. After some further argument about
the union label, Waitsman entered the plant.
About a month later, Zubal was again distributing leaflets in front of the
plant to the employees as they reported for work and handed one to Waitsman.
Zubal testified that as Waitsman entered the plant, he turned around to Zubal
and told him to get away from there, that he was causing trouble.
Waitsman, testifying regarding the above-noted incidents with Zubal, stated
that Zubal gave him a leaflet in front of the building and there was no discus-
sion about the Union. Upon further questioning, Waitsman admitted that they
talked about his union membership and nothing else. Waitsman denied that
union labels were mentioned. Waitsman also testified that he politely told
Zubal to get off the steps of the building and let the employees go into the build-
ing. Waitsman's testimony on these matters was evasive and contradictory and
is not credited. The undersigned credits the testimony of Zubal and finds that
the incidents described above took place substantially as testified to by Zubal.
19 See Capital Candy Company, 71 NLRB 447; Hays Corporation, 64 NLRB 406;
Goldblatt Bros ., Inc., 77 NLRB 1262; Loudonville Milling Co., 79 NLRB 304.
1° The leaflet contained an announcement of a union meeting scheduled for that night at
the American Legion Hall and also the fact that the Union had filed with the Board a
petition for an election among the Respondent 's employees.
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With regard to Waitsman's statement that the Union was no good, the under-
signed finds that such statement was an expression of opinion protected by Sec-
tion 8 (c) of the Act. The undersigned further finds that Waitsman's action when
Zubal was distributing leaflets on the second occasion in front of Respondent's
plant was designed to interfere with and discourage union activity and not for
any legitimate purpose. See General Chemical Company, 53 NLRB 1457.
Velma Stapp, a former employee laid off on May 23, whose job was tacking
union-made tickets on garments, testified that 2 to 3 weeks after her lay-off she
met Waitsman on a street in Statham and inquired if the Respondent was hiring
any help. Waitsman, according to Stapp, said, "We are not hiring any more that
is in favor of the Union." Stapp further testified that she did not remember all
of Hirsh's speech to the employees, but did recall that he said he did not have
to run the plant, that he could go home the rest of the year, and that he would
shut the plant down if the Union was successful.
Waitsman denied that he ever had any conversation with Stapp and further
denied that she asked him for a job. His denial is not credited. The under-
signed is of the opinion that Stapp misconstrued Hirsh's remarks about closed
plants made in his speech to the employees. Despite this, the undersigned
finds that Stapp's credibility has been unimpaired and further finds that Waits-
man made the statement attributed to him by Stapp, particularly, since statements
of a similar nature were made by Waitsman to others.
Belle Meeler testified that in June 1947, Waitsman in the company of Ruth
and Watt Gordon called at her home in an effort to get her to work as a side
reamer for the Respondent. Meeler stated that she did not care to work in any
plant where there was a disturbance going on and "would rather not get mixed
up in it." Waitsman told Meeler "that there was not going to be any union at
the plant." When Meeler remarked that "a lot was going on" and that she pre-
ferred to wait, Waitsman said that "before they would have one [Union] the
plant would not run." Although Waitsman made several more calls on Meeler,
she did not take a job with the Respondent.
. Waitsman admitted that he called at Meeler's home several times. He testi-
fied however that he saw her only once and that was either in August or Septem-
ber when he was accompanied by Ruth and Watt Gordon. He denied that there
was any mention made of the Union in their conversation.
Watt Gordon testified that he talked to Waitsman about Meeler after Ernestine
Daily, a side seamer in the Respondent's employ, had quit. He, his wife, and
Waitsman drove clown to Meeler's house in his car in the "late summer" of 1947
to get Meeler to come to work for the Respondent. The Respondent's pay-roll
records in evidence reveal that Daily was employed until the week ending Sep-
tember 27, 1947. Gordon also testified that he heard Waitsman's conversation
with Meeler, that Waitsman merely talked about the side-seaming job and no
mention was made of the Union.
Ruth Gordon testified that the visit to Meeler was made after Daily quit the
Respondent's employ.
The testimony of Ruth and Watt Gordon and Waitsman herein was not con-
vincing. Ruth and Watt Gordon in their testimony contradicted Waitsman as
to the date when they visited Meeler. Meeler was a straight-forward, reliable
witness and her testimony is accepted. The undersigned finds that the conver-
sation between Waitsman and Meeler took place substantially as testified to by
Meeler. It is further found that Waitsman's remarks to Meeler violated Sec-
tion 8 (1) and 8 (a) (1) of the act.
H & H MANUFACTURING COMPANY, INC. 1397
Elizabeth Wages, a former employee whose lay-off was related hereinabove,
testified that she saw Hirsh in his office in the latter part of June about the fact
that she was not yet receiving unemployment compensation. After talking about
this as well as several other matters, Hirsh, according to Wages, said that be had
been advised that Wages had been working against him and for the Union, that
the Union consisted of Communists, and was not going to have his plant.
Hirsh, testifying regarding his version of the conversation, stated that Wages
and her husband came into the plant on July 24. Hirsh's attorney, Mortimer
Freeman, was present. Wages asked Hirsh to change a statement he had given
the Georgia State Employment Service that Wages had refused to do some
special work in the plant, in order to make her eligible to draw unemployment
benefits. Hirsh refused, but did advise Wages to have the Employment Service
write to him directly and he would reconsider. Immediately after this conversa-
tion the Wages left the plant. Hirsh testified he saw Wages only once there-
after, on December 3, 1947, when she came into the plant seeking a job and
was told there were no openings.
Wages did not remember calling at the plant with her husband when Freeman
was present. She admitted, however, that she was in to see Hirsh about un-
employment compensation and that Freeman was there. The undersigned here-
tofore has not credited Wages' testimony, and does not credit her testimony
herein.
Early in June 1947, Harvil, who was no longer employed by the Respondent
but was still active in the Union, visited her sister at the Statham Pants Company
and was asked by Patat how the Union was progressing. Harvil answered
"better every day." Patat told Harvil that if the Union was successful at Hirsh's
plant it would be closed and none of the girls holding union cards would get a
job in any of the shops in Winder 21 Patat also said that he would close his shop
if the Union came in and that Hirsh told him that since he had gotten rid of
some of the union people he was getting better production.
It is the contention of the General Counsel that when Patat talked to the
employees in the Respondent's plant on a previous occasion, he was made the
Respondent's agent for the purpose of talking to employees. Further, that
in view of Respondent's original request, Patat became and apparently remained
Respondent's agent when he talked with Respondent's employees.
There is no reason shown by the evidence for anyone to have assumed, nor
for the undersigned to find that Patat's agency was continuous and still existed
when he made his remarks in a casual conversation with Harvil at his own
plant, more than a month after his only talk with Respondent's employees. The
undersigned finds that Patat's agency did not continue and his remarks to
Harvil herein are not attributable to the Respondent.
In August 1947, Nancy Patton, referred to on the Respondent's pay roll as
Willie Patton,.was referred to the Respondent for a job by the Georgia State
Employment Service. Patton testified without contradiction that she was in-
terviewed by Hirsh and told that ". . . there is a union trying to come in here
and we are not in favor of it." Before Patton started working for the Respond-
ent she signed a statement whereby she agreed that if her services were satis-
factory she would be retained, otherwise her employment was only temporary.
Patton worked cording back pockets from about August 5 to September 12,
"Winder is several miles from Statham and a few pants manufacturing plants are
located there.
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when she quit of her own volition. The undersigned finds that Hirsh' s remark
to Patton is an expression of opinion protected by Section 8 (c) of the Act.
On June 30, 1947, there was received at the Tenth Regional Office of the
Board a petition bearing the signatures of 38 Respondent employees under the
following heading :
We the undersigned employees of the H & H Manufacturing Co., Inc.
Statham, Georgia, wish to express our desire to the National Labor Rela-
tions Board.
We do not want a union in our plant. Although, many of us may have
signed with the union, we did so, under such pressure that we really had
no chance to consider what we were doing.
Our plant has been upset during these last two months because of mis-
representation by the union. This petition is voluntarily signed by the
undersigned employees.
Grace Coker, an employee of the Respondent, testified that she and two other
employees talked with Margaret Kreider in the Respondent's office about the
contents of the petition and Kreider typed it using her own language. Coker
testified further that the petition was passed around the plant during working
hours and that Waitsman and Roberts were moving about the plant when it
was circulated. Several other Respondent's witnesses testified that the petition
was passed up and down the line and signed by them at their machines. There
is no evidence that its circulation was kept secret.
Hirsh testified that the petition could have been drafted in his office, but
he was not certain of it. He testified further that he did not remember having
seen it before receiving a copy in the mail on or about June 27, 1947. Hirsh's
testimony in this regard was evasive and is not crediteFl.
The undersigned finds that the petition was drafted in the Respondent's office
by the office manager, and circulated in the plant during working hours in the
presence of and with the knowledge of Respondent' s supervisors in violation of
Section 8 (I) and 8 (a) (1) of the Act.
In addition to the above-noted petition, the Tenth Regional Office of the
Board received several individually signed letters dated June 23, 1947, from
Respondent's employees as follows :
At one time I signed a union card thinking I would like to join up with
the C. I. O.
I have reconsidered and want to withdraw my name from this list.
I prefer to go along with the H & H Manufacturing Co., under its present
management and the way it is operated.
Hirsh testified that employee Nettie Coker came into his office, told him she
wanted to get out of the Union and asked him to write something for her which
would accomplish this. Hirsh dictated the above letter to Kreider and had a
number of carbon copies made which he kept in his desk. Coker signed it in the
office and returned it to Hirsh. As other employees came in and made requests
similar to Coker's, they were handed the letter, which they signed and left in
Hirsh's office.
Respondent's counsel admitted during oral argument that Respondent's activi-
ties in connection with the above-noted petition and letters to withdraw from
the Union were violative of Section 8 (1) and 8 (a) (1) of the Act. The,
undersigned so finds.
H & H MANUFACTURING COMPANY, INC . 1399
E. The refusals to reemploy
The amended complaint alleges that the Respondent failed and refused to
recall, reinstate, and employ the 10 employees hereinabove described, because of
their membership in and activities on behalf of the Union, and because they
engaged in concerted activities with other employees for the purposes of collec-
tive bargaining and other mutual aid and protection.
It is the contention of the Respondent that because of the consolidation and
elimination of certain operations after the lay-offs, as testified to by Waitsman,9
it did not have jobs for some of the people allegedly discriminatorily refused
reemployment, and as to the others, it did not rehire them because of criticism
of their work, refusal to do work, and profane name calling of Waitsman.
It has been found (1) Warren's work was criticized on a number of occasions,
and because of. complaints regarding his work at the cutting table he was trans-
ferred to pressing: (2) Wages refused to do special work assigned to her by
Waitsman; (3) Little was admonished to "cut the foolishness," his work at the
cutting table was criticized, and he called Waitsman a profane name; and (4)
Nickelson was slow and passed trousers through inspection which were unaccept-
able ; furthermore, she was replaced by a more competent employee who had
previously been laid off. In view of these findings, it appears and the under-
signed finds that Respondent's failure to reemploy Warren, Wages, Little, and
Nickelson was for just cause and not discriminatory.
Camp was laid off because of the lack of mechanical work in the plant. Camp
admitted in a written statement dated July 22, 1947, given voluntarily to the
Respondent that there was not sufficient work in the plant for two machinists.
Although at one stage in his testimony Camp stated that in a conversation with
Waitsman when he applied for reemployment, he asked for any type job, it
appears clear that on a different occasion he said that he did not care to "mess
up" his GI mechanical training and would like to finish it. The record reveals
that subsequent to the lay-offs of the full-fledged machinist and Camp, who was
only a helper and trainee, the Respondent did not have a machinist in its employ
until the week of July 26, and at no time thereafter did it hire a machinist's
helper.
In view of the above the undersigned finds that Respondent's failure to reem-
ploy Camp was for the reason that it did not have available work in Camp's
held and not for discriminatory reasons.
The situation with respect to the refusal to reemploy Minnie Lou Jones, Sea-
graves, Sims, Harvil, and Elizabeth Jones is much different than that set forth
above. Here we are confronted with employees whose work was never criticized,
who had learned and become accustomed to the methods and systems in use at the
Respondent's plant, all of whom with the exception of Harvil having worked
there practically from the day the Respondent started operating and having had
previous experience in the same industry ; in addition they were some of the
most active in the Union.`
® Waitsman testified that 56 pressing and sewing operations were consolidated to 31
after the lay-offs, with a proportionate decrease in the personnel required for such operations.
23 As found hereinabove Harvil was a member of the organizing committee and was
one of the most active union adherents in the plant . In addition the record reveals and
the undersigned finds that after her lay-off she assisted Zubal in the distribution of union
leaflets outside of the plant . Union meetings were held at the homes of Seagraves and
Elizabeth Jones. Although Minnie Lou Jones and Sims were not as outstanding in union
activities as the others , the record nevertheless reveals that they became members early
in the campaign and proselytized in its behalf.
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ostensibly these experienced employees were not rehired because there were
,no jobs for them. But what does the record reveal in this regard? Of 34 em-
ployees originally laid off, 11 were nonunion . Four of these nonunion employees,
namely Reba Owens, Claudia Dial, Belle Davis, and Mary L. Wright, were former
employees of Patat, who when laid off on June 2, returned to work there. Of the
7 remaining nonunion employees, 6 were reinstated as follows: Alma Perry,
who incidentally signed the withdrawal petition from the Union, worked the
'week of June 14 through June 21, and returned to steady work again on July 12;
William Dooley was given steady employment from July 12 on; Laurene Hall
.who was in the May 19 lay-off, worked on May 21 and 22 and again from July 12
regularly thereafter ; Lillian Davis, included in the lay-off of May 19, worked
on May 20 and 21, was out from the latter date until the week of August 30, and
worked steadily thereafter ; Lunnie Hunter, who also signed the withdrawal
petition from the Union, although included in the May 19 lay-off, worked on
May 20 and 21, was out May 22, worked May 23, out May 26, worked May 27, 28,
and 29, out May 30 and worked regularly from June 2; Daphine Parker, laid
off on May 19, was reinstated to regular employment on May 23 ; Dorothy Rob-
erts, wife of Assistant Superintendent Roberts, laid off May 19, returned to the
plant the week of August 23, and worked steadily thereafter.
Only 4 of the 23 union employees were reinstated to permanent employment
after the lay-offs 2' It is significant that 3 of these employees signed letters
withdrawing from the Union.
In addition to the reinstatement of old employees as above noted, Respondent's
pay-roll records reveal that 26 new hirings for both steady and temporary em-
ployment' were made beginning shortly after the lay-offs as follows: during the
month of June, 5 were hired; 5 in July ; 8 in August ; 3 in September ; 3 in October ;
and 2 in November. Only 1 of the 26 new employees was a union member.
Although there is testimony that several of the new employees were taken
on to perform operations which had not existed prior to the lay-offs and which
required special experience,'6 it is clear from Hirsh's testimony that if a sewing
machine operator has "common sense" and is given the proper training, he can
attain the skill to enable him to do a good job at any operation. Moreover,
Hirsh testified that the Respondent did not have a defined policy regarding the
hiring of ony experienced operators. He stated that "the company policy is that
if we think we can use a particular operator, whether she is green or moderately
experienced or experienced, if we can use the operator then we will try to fit her
into the organization." Thus, Willie Patton, who began her employment with
the Respondent in August, was hired by Hirsh, not because she had any special
ability or skill, but merely on her statement that she was a good operator.
It was also the Respondent's practice to transfer employees from one operation
to another depending upon where their services were most needed.
The Respondent used various methods to augment its staff. Hirsh and
Roberts testified that sometimes word is sent by an employee working in the.
plant who lives near the person sought, or else a post card might be sent. Waits-
man testified that in July he sent employee Lucille Boyd to Minnie Lou Jones'
24 Ethelene Long returned to work May 27, Byrd Hammond on June 3, Nettie Coker on
June 6 , and Grace Coker on June 6.
2s Sixteen worked steadily , and 10 for periods from 1 week to 3 months.
26 The record is not clear as to these new operations but it does not appear that there
were more than three . Nor does the record indicate the degree of experience of the new
employees hired to fill such jobs.
H & H MANUFACTURING COMPANY, INC. 1401
home to tell her to come back to work. Boyd corroborated Waitsman's testi-
mony in this regard. Boyd stated that because of the bad condition of the
roads she never delivered the message to Jones. Minnie Lou Jones never applied
for reemployment subsequent to her lay-off. Elizabeth Jones, Harvil, Seagraves,
and Sims were never sent for and were told on each of the occasions when they
applied for reemployment n that there was no work for them.
Under all the circumstances, and in view of the Respondent's antiunion state-
ments subsequent to the lay-offs, the union activities of Harvil, Seagraves, Sims,
and Elizabeth Jones, the fact as hereinabove found that the work of the afore-
said employees was never criticized, and finally, the addition to the staff of new
employees and the reemployment of old nonunion employees, the undersigned
is persuaded and finds that Respondent has discriminatorily refused to reemploy
Harvil, Seagraves, Sims, and Elizabeth Jones because of their union activities,
thereby discriminating with regard to- their hire and tenure of employment, and
thereby interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed by Section 7 of the Act. Since Minnie Lou Jones ad-
mittedly never applied for reemployment the allegation in the complaint with
respect to her will be dismissed.
The question arises as to the dates of the discrimination against Harvil, Sea-
graves, Sims, and Elizabeth Jones. Since in the present state of the record the
undersigned cannot precisely determine which of the employees, in the absence
of discrimination, would have been reemployed when the Respondent began its
reinstatements and new hirings, this matter may be ascertained at the com-
pliance stage.
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 its operations described in Section I, above, have a close, inti-
mate, 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 Respondent has engaged in unfair labor practices affecting
commerce, it will be recommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Having found that Respondent has discriminatorily refused to reemploy Emma
Harvil, Sallie Seagraves, Eunice Bell Sims, and Elizabeth Jones because of their
union and concerted activities, the undersigned will recommend that Respondent
offer each of the said employees immediate and full reinstatement to her former
or substantially equivalent position 28 without prejudice to her seniority or other
rights and privileges. It is further recommended that all found to be discrim-
inated against be made whole for any loss of pay by reason of Respondent's
discrimination, by payment to each of a sum of money equal to that which she
zr Elizabeth Jones applied for reemployment 2 weeks after her lay-off, and again in July
and August. Harvil applied in June and December, Sims applied in May and August.
Seagraves applied twice after her lay-off, the last time in July.
21 In accordance with the Board 's consistent interpretation of the term , the expression
"former or substantially equivalent position " is intended to mean "former position wherever
possible , but if such position is no longer in existence , then to a substantially equivalent
position ." See The Chase National Bank of the City of New York, San Juan, Puerto Rico,
Branch, 65 NLRB 827.
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would have earned from the date of the discrimination against her to the date
of the offer of reinstatement less their respective net earnings 2B during that
period.
Respondent, in its refusal to reemploy those named above resorted to the most
effective means at its disposal to defeat self-organization. As the Supreme Court
said in the Phelps Dodge case,'0 such "Discrimination against union labor in the
hiring of men is a dam to self-organization at the source of supply." Concur-
rently with such discriminatory treatment Respondent made threats that it would
not run the plant if the Union was successful. Prior thereto it spied upon union
meetings. The undersigned is convinced that the unfair labor practices found
herein reflect on the part of Respondent "an attitude of opposition to the purposes
of the Act to protect the rights of employees generally," n and the consequent
likelihood of Respondent resorting to other acts of interference, restraint, and
coercion, in violation of the Act. The undersigned will therefore recommend
that Respondent be ordered to cease and desist from in any manner infringing
upon the rights of employees as guaranteed by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and of the entire record in this
proceeding, the undersigned makes the following :
CONCLUSIONS OF LAw
1. Amalgamated Clothing Workers of America, affiliated with the Congress of
Industrial Organizations , is a.labor organization within the meaning of Section
2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Emma
Harvil, Sallie Seagraves , Eunice Bell Sims, and Elizabeth Jones, thereby dis-
couraging membership in a labor organization , Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (3) and
8 (a) (3) 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 , to the extent herein found to be
violative of the Act , Respondent has'engaged in and is engaging in unfair labor
practices within the meaning of Section 8 ( 1) and 8 ( a) (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 the unfair labor practices alleged in
the amended complaint of ( 1) discriminating in regard to the hire and tenure
of employment of Hillman Camp, J. D: Warren, Elizabeth Wages, Vaughn Little,
Ida Nickelson , and Minnie Lou Jones ; ( 2) interfering with, restraining, or co-
ercing its employees , in the exercise of the rights guaranteed in the Act , except
by the acts and conduct herein found to have been violative.
RECOMMENDATIONS
Upon the basis of the.above findings of fact and conclusions of law, and of the
entire record of this proceeding, the undersigned recommends that H & H Manu-.
facturing Company, Inc., its officers, agents, successors, and assigns, shall :
1. Cease and desist from:
(a) Discouraging membership in Amalgamated Clothing Workers of America,
CIO, or any other labor organization of its employees, by discriminatorily refus-
¢9 Crossett Lumber Co ., 8 NLRB 440 , 497-498.
20 Phelps Dodge Corp. v. N. L. R. B., 313 U. S. 177, 185.
91 May Department Stores v. N . L. R. B., 326 U. S. 376.
H & H MANUFACTURING COMPANY, INC . 1403
ing to reemploy any of its employees, or by discriminating in any other manner,
with regard to their hire and tenure of employment or any term or condition of
employment ;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to join or assist Amal-
gamated Clothing Workers of America, CIO, 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 as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to Emma Harvil, Sallie Seagraves, Eunice Bell Sims, and Elizabeth
Jones immediate and full reinstatement to their former or substantially equiva-
lent positions, without prejudice to their seniority and other rights and privi-
leges and make them whole for any loss of pay suffered by reason of Respond-
ent's discrimination against them in the manner set forth in the section entitled
"The remedy" above;
(b) Post at its plant in Statham, Georgia, copies of the notice attached hereto
and marked Appendix A. Copies of said notice, to be furnished by the Regional
Director for the Tenth Region, after being duly signed by representatives of the
Respondent shall be posted by Respondent immediately upon receipt thereof and
maintained by it for a period of sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees customarily are
posted. Reasonable steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by other material ; and
(c) Notify the Regional Director for the Tenth Region (Atlanta, Georgia),
in writing within twenty (20) days from the receipt of this Intermediate Report
what steps Respondent has taken to comply herewith.
It is further recommended that the amended complaint be dismissed insofar
as it alleges that Respondent discriminated in regard to the hire and tenure
of employment of Hillman Camp, J. D. Warren, Elizabeth Wages, Vaughn
Little, Ida Nickelson, and Minnie Lou Jones, and interfered with, restrained,
and coerced its employees by any acts or conduct other than those found herein to
have been committed in violation of the Act.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 1948, any party may,
within twenty (20) days from the date of service of the order transferring
the case to the Board, pursuant to Section 203.45 of said Rules and Regulations,
file with the Board, Washington 25, D. C., an original and six copies of a statement
in writing setting forth such exceptions to the Intermediate Report or to any
other part of the record or proceeding (including rulings upon all motions or
objections) as he relies upon, together with the original and six copies of a,
brief in support thereof ; and any party may, within the same period, file an
original and six copies of a brief in support of the Intermediate Report. Im-
mediately upon the filing of such statement of exceptions and/or briefs, the party
filing the same shall serve a copy upon each of the other parties. Statements of
exceptions and briefs shall designate by precise citation the portions of the record
relied upon and shall be legibly printed or mimeographed, and if mimeographed
shall be double spaced. Proof of service on the other parties of all papers filed
with the Board shall be promptly made as required by Section 203.85. As fur-
ther provided in said Section 203.46, should any party desire permission to argue
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
orally before the Board , request therefor must be made in writing to the Board
within. ten (10 ) days from the date of service of the order transferring the case
to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations , the findings , conclusions, recommendations , and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations , be adopted by the Board and become its findings , conclusions,
and order , and all objections thereto shall be deemed waived for all purposes.
Dated at Washington , D. C., this 20th day of June 1949.
SIDNEY LINDNER,
Trial Examiner.
APPENDIX A
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, we hereby notify our employees that :
WE WILL NOT discourage membership in AMALGAMATED CLOTHING WORKERS
.OF AMERICA , CIO, or any other labor organization of our employees by
refusing to reemploy them or in any other manner discriminating against
them in regard to their tenure or any term or condition of employment.
WE WILL NOT in any like or similar manner interfere with, restrain, or
coerce our employees in the exercise of their right to self -organization, to
form labor organizations , 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 and protection as guaranteed in
Section 7 of the National Labor Relations Act.
WE WILL OFFER to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
Emma Harvil Eunice Bell Sims
Sallie Seagraves Elizabeth Jones
H & H MANUFACTURING COMPANY, INC.,
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.