Happ Brothers Co, Inc.

National Labor Relations Board - Board Decisions

Jul 28, 1950

90 N.L.R.B. 1513 (N.L.R.B. 1950)

In the Matter of HAPP BROTHERS COMPANY, INC. and AMALGAMATED
CLOTHING WORKERS OF AMERICA, C. I. O.
In the Matter of H APP BROTHERS COMPANY, INC. and IMOGENE B.
CRAWFORD, AN INDIVIDUAL
Cases Nos. 10-CA-11f.3 and 10-CA-227.Decided July 28, 1950
DECISION AND ORDER
On December 7, 1949, Trial Examiner John Lewis issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Interme-i
diate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in certain other alleged unfair labor
practices and recommended that the complaint be dismissed with
respect to such allegations. Thereafter, the Respondent and the Gen-
eral Counsel filed exceptions to the Intermediate Report and support-
ing briefs.,'
The Board 2 has reviewed the ruling of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed .3 The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the exceptions, modifications, and
additions noted below.
1. We agree with the Trial Examiner that the Respondent inter-
fered with, restrained, and coerced its employees in violation of See-
I As the record, exceptions, and briefs adequately present the issues and positions of
the parties, the Respondent's request for oral argument is denied.
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[Chairman Herzog and Members Houston and Murdock].
'Like the Trial Examiner, we find no merit in the Respondent's motion to dismiss
Case No. 10-CA-227 on the ground that Imogene B. Crawford, the charging party, was
"a front" for Local 223 of United Construction Workers, a noncomplying union. These
charges allege, among other things, discrimination against, the charging party and other
named employees, and the Act imposes no limitation on an indtividual right to file them.
Globe Wireless Ltd., 88 NLRB 1262.
90 NLRB No. 157.
1513
1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion 8 (a) (1) of the Act. As more fully discussed in the Intermediate
Report, the Respondent, through its responsible officials and super-
visors, infringed upon its employees' rights among other things, by
granting a wage increase calculated to discourage union member-
Ship; 4 by interrogating its employees concerning their union mem-
bership, activities, sympathies, and the identity of union members;
by threatenting employees with loss of employment if they joined the
union; and by informing them that it would have no union in the
plant.5 However, contrary to the Trial Examiner, we find Forelady
Haisten's appeals to racial prejudice, much as we deprecate such re-
marks, do not constitute interference, restraint, and coercion within
the meaning of the Act .6
The Respondent contends, in effect, that its various neutrality state-
ments exonerated it from liability for the foregoing conduct. How-
ever, although there is evidence that the Respondent told employees
that they were privileged to join or refuse to join any labor organ-
ization, it is clear from the entire record that the Respondent in
practice pursued a contrary policy. For, not only did it take no
measures to dissipate the coercive effects of its supervisors' acts, but
its high ranking officials themselves engaged in unfair labor practices
found herein.
2. Like the Trial Examiner, we find, contrary to the Respondent's
contention, that the Respondent dominated and interfered with the
formation and administration of the Shop Committee and contributed
financial and other support to it, in violation of Section 8 (a) (2) and
(1) of the Act. The fact that the Shop Committee had a short life
or that the Respondent ceased dealing with it on advice of a Board
field examiner does not relieve the Respondent of responsibility for
its earlier acts of domination and support.
* This case is distinguishable from N. L . R. B. v. West Ohio Gas Co., 172 F. 2d 685
(C. A. 6), upon which the Respondent relies, where the employer gave employees a wage
increase at their request sometime after the employees had withdrawn from their union
on their own accord.
' We interpret this remark in the context of its other conduct as revealing the Re-
spondent 's fixed determination to deny the employees the right to be represented by a
labor organization.
,; -Unlike the employer's statements in' Sax v. N. L . R. B., 171 F. 2d 769 (C. A. 7), the
Respondent 's statements were not mere "perfunctory , innocuous remarks and queries,
standing alone," as they did in that case , but were actually part and parcel of the
Respondent ' s entire course of unlawful conduct. Similarly distinguishable is N. L. R. B.
v. West Ohio Gas Co., supra.
6 We accept the Trial Examiner ' s finding that the evidence does not establish other
independent violations of Section 8 (a) (1) as alleged in the complaint . However, as no
exception was taken to the Trial Examiner 's finding that Morris Michael , Jr.'s statement
that under the Taft -Hartley Act he could negotiate in good . faith with the Union week
after week without having to sign a contract was not violative of Section 8 (a) (1), we
express no comment with respect to this finding . We also make no finding with respect
to Forelady Atkins' alleged remark to employee Davis that, if the operators knew what
she did, they would stop "the foolishness ," because of the absence of credibility findings.
RAPP BROTHERS; COMPANY, INC. 1515
3. We agree with the Trial Examiner that the Respondent,-in viola-
tion of Section 8 (a) (3) and (1) of the Act, discriminatorily dis-
charged employees Coleman and Dickson because of their membership
in and activities on behalf of United Construction Workers and not,
as the Respondent contends, because of their deficient production or
indifferent attitude exhibited at the time of their discharge. The
Respondent's exception to this finding is directed primarily against
'the Trial Examiner's resolution of conflicting testimony and the in-
ferences he drew from the evidence. As the Trial Examiner's credi-
bility findings, based as they are in part on his personal observation
of the witnesses , are not clearly erroneous , we adopt them. Moreover,
we find, as did the Trial Examiner, that the preponderance of the
evidence persuasively establishes that the Respondent, in discharging
these two active union adherents, was motivated not by their short=
comings but rather by antiunion considerations which the Act plainly
forbids.7 As a discharge for discriminatory reasons has the neces-
sary purpose and effect of discouraging union membership, we find,
contrary to the Respondent's contention, that the Respondent violated
Section 8 (a) (3) of the Act. We also find that by this conduct the
Respondent -interfered with, restrained, and coerced its employees in
the exercise of their rights guaranteed in Section 7 of the Act and
thereby violated Section 8 (a) (1) thereof. Whether the discrimina-
tory conduct is viewed as a violation of Section 8 (a) (3) or Section 8
(a) (1) of the Act, we find effectuation of the policies of the Act
requires the remedy set forth below 8
4. The Trial Examiner found, and we agree, that on February 23,
1948, the employees went out on strike solely in protest against the
discriminatory discharge of Coleman and Dickson and the discharge
of Yarbrough. Under well-settled principles, the strikers assumed
the role of unfair labor practice strikers, whether or not Yarbrough's
dismissal, which is not charged to be discriminatory, was also a cause
of the strikes As unfair labor practice strikers, they were not vul-
nerable to discharge because they were replaced or because work had
become slack in the meantime. Therefore, when the Respondent, by
its March 15, 1948, letter, terminated the employment of the strikers
' Footnote 61 of the Intermediate Report is hereby corrected to show the year of Kitchens'
transfer to be 1948 , instead of 1949.
8 We agree with the Trial Examiner that the record does not establish discrimination
against Emma Lee Burnley.
' A strike in protest to a nondiscriminatory discharge is economic in character and a
protected concerted activity. Firth Carpet Company v . N. L. R. B.; 129 F. 2d 633
(C. A. 2). The fact that a strike directed against an employer' s unfair labor practices
may also have an economic objective does not deprive the striking employees of their
rights as unfair labor practice strikers . x. 'L. R. B. v. Remington Rand, Inc., 94 F. 2d
862, 872 (C. A. 2), certiorari denied 304 U. S. 576 and 589; N. L. R. B. v.. Stackpole
Carbon Co ., 105 F. 2d 167, 175-176 (C. A. 3), certiorari denied 308 U. S. 605.
1516 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD-
for these reasons, it penalized the strikers for their legitimate con-
certed activity. This action was clearly in derogation of the striker's
statutory rights and constituted a violation of Section 8 (a) (3) and
(1) of the Act.'° Similarly violative of the. Act was the Respondent's
refusal to reemploy Myrtle Matthews,'1 Mary J. Asbell,'2 and Cath-
erine triggers when they unconditionally applied for reinstatement
on February 25, 26, and March 1, 1948, respectively, because they
participated or were suspected of participating in the strike.13
The Respondent contends that, although the strike was ostensibly
in protest to the discharges of Coleman, Dickson, and Yarbrough, it
actually was an unlawful strike for recognition of United Construction
Workers, which did not represent a majority of its employees. There-
fore, the Respondent argues, the strikers engaged in unprotected con-
certed activity and forfeited their right to reinstatement. Without
passing on the question of the validity of a minority strike for recog-
nition,14 the record unequivocally establishes that the employees voted
to go out on strike and actually participated in the strike for the sole
purpose of procuring the reinstatement of the three discharged girls.'s
The fact that a picket sign requesting recognition was also carried or
that United Construction Workers requested recognition about 10
days before the strike, is not determinative of the question, where, as
here, the entire record shows that this was not an objective of the
10Kallaher and Mee, Inc„ 87 NLRB 410; Alside, Inc., 88 NLRB 460. We find, con-
trary to the Respondent's contention , that where, as here, the Respondent affirmatively
discharged strikers because of their protected concerted activity, an application for rein-
statement is not a prerequisite of a finding of discrimination. But see the remedy
section of this decision relating to the effect of an application for reinstatement on
back pay.
The Trial Examiner found that Virginia Stapleton was not a striking employee against
whom the Respondent discriminated . No exception to this finding was taken. We shall
therefore adopt the Trial Examiner's recommendation and dismiss the complaint as to
her.
"Matthews, however, was reemployed in October 1948. The Trial Examiner inad-
vertently stated in his Intermediate Report that no other striker or suspected striker was
reinstated. It appears that, in addition to Matthews, Maude Thompson, another striker,
was reinstated about February 8, 1949.
12 In one place in' the Intermediate Report , the Trial Examiner erroneously stated that
Asbell was denied reinstatement on February 25, 1948. The correct date is February
26, 1948.
3s1n view of our finding that the Respondent discriminatorily terminated the employ-
ment of the strikers by its letter of March 15, 1948 we, like the Trial Examiner , consider
it unnecessary to make additional findings of discrimination based on the Respondent's
denial of reinstatement to the strikers who unconditionally applied for their jobs after
that date. However, such applications are relevant in determining the amount of back
pay due to the applicants. N
14 While we adopt the Trial Examiner 's finding that the' radio announcement on Feb-
ruary 23, 1948 , was a tactical maneuver that violated Section 8 (a) (1) of the Act, we do
not rely on his finding . that the Respondent 's- statement in the announcement that the
strike was illegal was coercive in effect.
11 For this reason, we , unlike the Trial Examiner , find it unnecessary to determine,
arguendo, whether the strike would also be protected if recognition was one of its
objectives.
HAPP BROTHERS COMPANY, INC. 1517
strike.16 As the strike was one for mutual aid and. protection, it was
concerted activity protected by the Act.
The Remedy
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of
the Act.
We have found, that the Respondent discriminatorily discharged
Gertha Coleman and Gladys Dickson. We shall therefore order the
Respondent to offer them immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and to make them whole
for any loss of pay they may have suffered as a result of the Respond-
ent's discrimination against them, by payment to each of them of a
sum of, money equal to the amount which she normally would have
earned as wages from the date of her discharge to the date of the
Respondent's offer of reinstatement; less her net earnings during said
period, to be computed in the manner hereinafter provided.
We have also found that the employees went out on strike on Feb-
ruary 23, 1948, solely in protest to the above unfair labor practices
and that thereafter the Respondent discriminatorily refused to reem-
ploy Myrtle Matthews, Mary J. Asbell; and Catherine Griggers when
they unconditionally applied for reinstatement on February 25, 26,
and March 1, 1948, respectively, and discriminatorily discharged the
remaining employees listed in the Appendix on March 15, 1948. We
shall therefore order the Respondent (a) to offer Asbell and Griggers
immediate and full reinstatement to their former or substantially
equivalent positions, and (b) to offer the remaining employees listed in
theAppendix, except Matthews, Maude Thompson, Daisy Elrod, and
Ida Whatley immediate and full reinstatement to their former or
substantially equivalent positions, dismissing, if necessary, any em-
ployees hired since February 23, 1948, to replace them. If ; after such
dismissal, there are insufficient positions remaining for all these em-
ploy-ees,1i the available positions shall be distributed among them,
without discrimination because of their union membership, activity,
or participation in the strike, following such system of seniority or
other nondiscriminatory practice as heretofore has been applied in
t6 Contrary to the Respondent's contention. we find that the Trial Examiner properly
revoked the subpoena requiring Livingston. the regional director of United Construction
workers. to produce membership application cards. As the union's majority status is not
an issue in this case. the documents sought to he produced had no materiality.
There i^ Some evidence that the Respondent has been operating with a curtailed staff
alter the strike began.
1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the conduct of the Respondent's business. Those strikers for whom no
employment is immediately available after such distribution, shall be
placed upon a preferential hiring list with priority determined among
them by such system of seniority or other nondiscriminatory practice
as heretofore has been applied in the conduct of the Respondent's
business and thereafter, in accordance with such list, shall be offered
reinstatement as positions become available, and before other persons
are hired for such work. Reinstatement,' as provided herein shall be
without prejudice to the employees' seniority or other rights and
privileges's No reinstatement shall be ordered with respect to Mat-
thews, Thompson, Elrod, and Whatley because it appears that the
Respondent reinstated Matthews on or about October 10, 1948, and
Thompson on or about February 8, 1949,19 and because Elrod and
Whatley testified at the hearing that they decided not to return to
the Respondent's employ after October 1, 1948, when they secured
employment elsewhere.
We shall also direct the Respondent to reimburse the foregoing
employees for any loss of pay they may have suffered by reason of
the Respondent's discrimination against them. As the discrimination
against Matthews, Asbell, and Griggers occurred at the time of the
denial of their unconditional applications for reinstatement, we shall
order the Respondent to pay each of them a sum of money equal to
the amount which she normally would have earned as wages from
the date of her application to the date of the Respondent' s offer of
reinstatement, less her net earnings during said period, to be com-
puted in the manner hereinafter provided.
With respect to the remaining employees (including Thompson,
Elrod, and Whatley), who were discharged on March 15, 1948, while
on strike, a similar remedy is appropriate to effectuate the policies
of the Act. It has been our practice to award back pay to employees
"If Matthews ' or Thompson ' s reinstatement was with prejudice to their seniority or
other rights and privileges , then the Respondent is hereby ordered to restore to them the
rights and privileges to which they would have been entitled had no discrimination been
practiced against them.
19 Like the Trial Examiner , we find that George Stapleton, who was offered reinstate-
ment before the hearing in this case , did not forfeit his right to reinstatement and back
pay because he requested the Respondent to afford him an opportunity to give his then
employer a week's notice before returning to work . Such a request was reasonable and it
would not effectuate the policies of the Act to penalize Stapleton for making it.
The Respondent contends that Eula Drawhorn was not an employee at the time of the
strike, and therefore was not entitled to reinstatement and back pay. The undisputed
evidence shows, however, that before the strike, Drawhorn was on leave and that when
she planned on returning to work on February 25, 1.948, she learned of the strike and joined
the picket line instead . We also note that the original charge, which was served on the
Respondent on or about April 6, 1948, and the subsequent amended charges, which were
also served on the Respondent , list Drawhorn as a striker . We accordingl y find no merit in
the Respondent 's contention.
HAPP BROTHERS, COMPANY, INC. 1519
discharged while on strike from the date of their unconditional appli-
cation for reinstatement, on the theory that it cannot be said that their
loss of pay was caused by the employer's conduct until the strikers
indicated a willingness to return to work.20 For this reason, and in
view of the fact that it appears that the Respondent curtailed opera-
tions after the strike began, we shall., unlike the Trial Examiner,
order the Respondent to pay each of them a sum of money equal
to the amount he or she normally would have earned as wages from
the date following his or her unconditional application for reinstate-
ment, or if no application has been made from 5 days after the date
of this Order'21 when he or she was or would be entitled to reinstate-
ment in accordance with the reinstatement formula described above,
to the date of the Respondent's offer of reinstatement, less his or her
net earnings during said period.
Since the issuance of the Trial Examiner's Intermediate Report,
the Board has adopted a method of computing back pay different
from that prescribed by the Trial Examiner.22 Consistent with that
new policy, we shall order that loss of pay be computed on the basis
of each separate calendar quarter or portion thereof during the period
from the Respondent's discriminatory action to the date of a proper
offer of reinstatement. The quarterly periods, hereinafter called
quarters, shall begin with the first day of January, April, July, and
October. Loss of pay shall be determined by. deducting from a sum
equal to that which these employees would normally have earned for
each such quarter or portion thereof, their respective net earnings,23
if any, in other employment during that period. Earnings in one
particular quarter shall have no effect upon the back-pay liability
for any other quarter.
20 Kallaher and Mee, Inc., 87 NLRB 410; Alside, Inc., 88 NLRB 460.
21 The record indicates that Minnie Lee Atkinson unconditionally applied for reinstate-
ment the first time about March 20, 1948; Jack U. Harrell also about March 20, 1948;
Samuel L. Thomas about the end of March 1948; Inez Brown in the latter part of July or
early part of August 1948; Sallie Austin in the third week in April 1948; and a large
number of strikers on and after January 25, 1949. It also appears that as of the time of
the hearing in this case, a small number of strikers had not yet applied for reinstatement.
There is evidence in the record that following her application for reinstatement , Austin
was pregnant . We shall accordingly abate back pay due to her from a date when she
might reasonably have been expected to leave her work as the result of pregnancy to a
time when normally she might have been again available for employment. Empire Worsted
Mills, Inc., 53 NLRB 683, 688-690.
22 F. W. Woolworth Compan y, 90 NLRB No. 41.
23 By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where, which would not have been incurred but for the unlawful discrimination and the
consequent necessity of his seeking employment elsewhere . Crossett Lumber Company, 8
B 440. Monies received for work performed upon Federal, State, county, municipal,
or other work -relief projects shall be considered earnings . Republic Steel corporation v.
N. L. R•. B., 311 U. S. 7.
1520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We shall also order the Respondent to make available to the Board
upon request payroll and other records to facilitate the checking
of the amount of back pay due.2"
It has been found that the Respondent has dominated and inter-
fered with the formation and administration of the Shop Committee
and has contributed to its support. Although the Shop Committee
has ceased to function, we find that, in order to prevent its revival
and a resumption of these unfair labor practices, it would effectuate
the policies of the Act to require the Respondent to cease and desist
from dominating or interfering with the Shop Committee or any
other labor organization and to disestablish the Shop Committee, in
the event it should resume fu lletioning.25
We shall also direct the Respondent to refrain from the various acts
of interference, restraint, and coercion, in which it has been found the
Respondent has engaged, and from other conduct prescribed by the Act
which we, like the Trial Examiner, find may reasonably be anticipated
from its past acts.
We expressly reserve the right to modify the back-pay and rein-
statement provisions of our order herein, if made necessary by a change
of conditions in the future, or to make such supplements thereto as
may hereafter become necessary in order to define or clarify their
application to a specific set of circumstances not now apparent.
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, Happ Brothers
Company, Inc., Macon, Georgia, and its officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in any labor. organization of its em-
ployees, by discharging or refusing to reinstate any of its employees
because of their union membership or activity, or in any other manner
discriminating in regard to their hire or tenure of employment, or any
term or condition of their employment;
(b) Granting a wage increase to discourage union membership;
interrogating employees concerning their union membership, activities,
and sympathies, and the identity of union members; threatening em-
ployees with loss of employment if they joined a union; and informing
employees that it would have no union in the plant;
=' P. W. Woolworth Company, supra.
z, We find that the notice posted by the Respondent is insufficient to remedy 5r to bar
resumption of its unfair labor practices.
HAPP BROTHERS COMPANY, INC. 1521
(c) Dominating or interfering with the administration of the Shop
Conmmittee, or with the formation and administration of any other
labor organization, or contributing financial or other support to the
Shop Committee or any other labor organization;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization , to form,
join, or assist any 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 , 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.
?.. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer Gertha Coleman, Gladys Dickson, Mary J. Asbell, and
Catherine Griggers immediate and full reinstatement to their former
or substantially equivalent positions , without prejudice to their
seniority or other rights and privileges;
(b) Make whole Gertha Coleman, Gladys Dickson, Mary J. Asbell,
Catherine Griggers, and Myrtle Matthews for any loss of pay they
may have suffered by reason of the Respondent's discrimination
against them , in the manner set forth in the remedy section of our
decision ;
(c) Offer the remaining employees listed in the Appendix , except
Myrtle Matthews, Daisy Elrod, Ida Whatley, and Maude Thompson,
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges, in the manner set forth in the remedy section
of our decision;
(d) Make whole all the employees mentioned in paragraph (c)
above, including Daisy Elrod, Ida Whatley, and Maude Thompson,
for any loss of pay they may have suffered by reason of the Respond-
ent's, discrimination against them, in the manner set forth in the
remedy section of our decision;
. (e) Upon request, make available to the National Labor Relations
Board, or its agents , for examination and copying , all paytoll records,
social security payment records, time cards, personnel records and
reports, and all other records necessary for a determination of the
amounts of back pay due and the right of reinstatement under the
terms of this Order;
903547-51-vol. 90-97
1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) Withdraw and withhold all recognition from the Shop Com-
mittee as the representative of any of its employees for the purpose
of dealing with the Respondent concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, or other conditions of
employment, and completely disestablish that, organization in the
event it returns to active existence;
(g) Post at its plant in Macon, Georgia, copies of the notice at-
tached hereto as an Appendix 26 Copies of such notice, to be furnished
by the Regional Director for the Tenth Region, shall, after being duly
signed by the Respondent's representative, be posed 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;
(h) Notify the Regional Director for the Tenth Region in writing,
within ten (10) days from the date of receipt of this Order what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED'that the complaint be dismissed insofar as .
it alleges that the Respondent discriminated against Emma Lee
Burnley and Virginia Stapleton in regard to their hire and tenure of
employment, and insofar as it alleges interference, restraint, and
coercion except as found herein.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in any labor organization
of our employees, by discharging or refusing to reinstate any of
our employees, or in any other manner discriminating in regard to
their hire or tenure of employment, or-any term or condition of
their employment.
WE WILL NOT interrogate our employees concerning their union
member§hip, activities, or sympathies, or the identity of union
members; grant a wage increase to discourage union membership;
threaten our employees with loss of employment if they joined
26 In the event this Order is enforced by decree of a United States Court of Appeals, there
shall be inserted before the words "A Decision and Order" the words "A Decree of the
United States Court of Appeals Enforcing."
HAPP BROTHERS COMPANY, INC. 1523
a union; or inform our employees that we would have no union
in the plant.
WE WILL NOT dominate or interfere with the administration of
any labor organization or contribute financial or other sup-
port to it.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization
to form, join, or assist any labor organization, to bargain col-
lectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from
any and 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 National Labor Relations Act.
WE WILL OFFER 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
privileges previously enjoyed, and make them whole for any loss
of pay suffered as a result of the discrimination against them,
in the manner set forth in the section entitled The Remedy of
the Board's decision,
Gertha Coleman
Gladys Dickson
Verna Mae Davidson
Samuel L. Thomas
Rachel Sheffield .
Mrs. Bertha Faulk
Mrs. Dovie P. Holland
Mrs. Thelma Thomason
Mrs. R. L. Tanton
Mrs. Ora Holland
John Hardeman, III
Otis Toole
Lois Carter
Reba Caldwell
Marie Sullivan
Myrtle F. Davis
Bertie B. Crowe
George Stapleton
Carolyn, E. Rauh,
Nina M. Glover
Mary J. Asbell
Jeanette Myers
Helen Cannon
Roy Hill
Doris W. Thigpin
Lewis Smith, Jr.
Charlie Gallt
Bessie G. Gillespie
Annie M. Curry
Mary E. Gallt
Sally Lou Nobles
Mrs. R. L. Thornton
Mrs. Annie Lee Cannon
Naomi H. Freeney
Bessie W. Phillips
Emily McAfee
Nell Benefield
Miss Viola Stapleton
Mrs. Mary E. Watson Boyles
Mrs. Venton A. Pearce
RELATIONS BOARDDECISIONS OF NATIONAL LABOR1524
WE WILL MAKE whole Myrtle Matthews, Daisy Elrod, Ida
Whatley, and Maude Thompson for any loss of pay they may have
suffered as a result of the discrimination against them, in the
manner set forth in the section entitled The Remedy of the
Board's decision.
All our employees are free to become or remain members of any labor
organization. We will not discriminate in regard to hire or tenure
of employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any labor
organization.
Fannie Lineberger
Mabel C. Nobles
Eula Drawhorn
F. P. Allen, Jr.
Mrs. Eddie D. Davis
Mary B. Clance
Mrs. Susie L..Ard
Mary L. Jackson
Mrs. F. P. Gardner
Bessie Luthie
Mrs. Mae Hudgins
Roy Ricks
Minnie D. Culverhouse
Myrtle M. Sauls
Rosa W. Fulwood
Lillian Toole
LaVerne B. Moore
Mrs. Helen J. Johnson
Mrs. Beauford McGee
Mrs. Nellie Smith
Mrs. Louise Horton
Genelle Sutton Cauley
Mrs. Roy Hill
Adrian P. Render
Inez Brown
William J. Ticker
George E. Ard
Iduma Parker
Lulu P. Toole
Emery Hammock
Annie Bell Kitchens
Mattie K. Hurst
Estelle Mitchell
Minnie Lee Atkinson
Annie Hoskins
Robert W. Brown
Lois Redwine
Cecil Etheridge
Nellie Simmons
Irene Barbee
Mrs. Imogene B. Crawford
Fannie Morgan
Maude Lee Wilks
Margaret Davis Carter
Mrs. S. A. Persons
Evelyn Campbell
Mrs. G. M. Camp
Myrtle Sitton
Mary Sapp
Iris-Jean McCullen
Catherine Griggers
Jack E. Harrell
Sallie G. Austin
I
HAPP BROTHERS COMPANY, INC.
Employer.
By ------- ----------------------------
(Representative ) ( Title)
Dated ------------------- ------
HAPP BROTHER'S COMPANY, INC. 1525
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 AND RECOMMENDED ORDER
Mr. Morgan C. Stanford, for the General Counsel.
Martin, Snow, and Grant, by Messrs. Cubbedge Snow and George C. Grant, of
Macon, Ga., for the Respondent.
Imogene B. Crawford, of Macon, Ga., the Charging Party.
STATEMENT OF THE CASE
Upon charges duly filed by Amalgamated Clothing Workers of America, C. I. 0.,
and Imogene B. Crawford, the General Counsel of the National Labor Relations
Board, herein called, respectively, the General Counsel' and the Board, by the
Regional Director for the Tenth Region (Atlanta, Georgia), issued a complaint,'
dated October 15, 1948, against IIapp Brothers Company, Inc., herein called the
Respondent, alleging that the Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of Section 8 (a)
(1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act,
as amended (61 Stat. 136), herein called the Act. Subsequently, the General
Counsel issued an amended complaint, dated February 17, 1949, against the
Respondent, alleging substantially the same violations of the Act. Copies of the
complaint, the amended complaint, the charges, and notice of hearing were duly
served upon the Respondent.
With respect to the unfair labor practices; the complaint, as amended, alleged
in substance that the Respondent: (1) On or about November 21, 1947, initiated
formed , sponsored, and promoted a Shop Committee, and has since such date
assisted, dominated, contributed to the support of and interfered with the ad-
ministration of said Committee; (2) discriminatorily discharged and refused
to reinstate Gladys Dickson and Gertha Coleman on or about February 20, 1948,
and Emma Lee Burnley on or about September 8, 1948; (3) on or about February
24, 1948, discriminatorily discharged and refused to reinstate 96 named em-
ployees who, on February 23, 1948, went on strike because of Respondent's unfair
labor practices; and (4) by its officers, agents, representatives, and employees,
more particularly by Morris Michael, Jr., Bert Michael, L. L. James, Annie
Hastings , Mrs. Bush, Mrs. Adkins, Mr. Caskin, and B. B. Smith, from on and
after October 1, 1947, engaged in various acts of interference, festraint, and
coercion; to wit: (a) Questioned and interrogated employees concerning their
union affiliation and activities; (b) threatened and warned its employees to
refrain from assisting, becoming members of, or remaining members of any
union; (c) threatened to discharge all employees involved in union activities;
(d) discriminated against union members by allowing only nonunion employees
to work overtime, by allowing only nonunion employees to decide what type of
work they desired to perform, and by giving assistance and instruction to non-
union employees and refusing to do the same for union employees; ( e) main-
tained surveillance over union meetings; (f) stated that Respondent would never
' The attorney representing the General Counsel at the hearing is also referred to herein
as the-General Counsel.
2 The. proceedings initiated by the separate charges of the Amalgamated Clothing Workers
and Imogene B. Crawford were consolidated by order of the Regional Director for the Tenth
Region , dated October 15, 1948.
1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have a union ; (g) stated that if each employee could be talked to in a soundproof
room, they would never want to hear of another union; (h) stated that the plant
would close down before allowing a union to come in; and (i) offered a wage
increase in order to discourage union activity and as a reward for refraining
from union activity.
Respondent, in its answer, filed on October 25, 1948, admitted the jurisdictional
allegations of the complaint, but denied that it had engaged in any of the unfair
labor practices alleged in the complaint. In its amended answer, filed at the
bearing herein, Respondent alleged in addition that the strike in which the
employees engaged on February 23, 1948, was not occasioned by the discharges
of Gladys Dickson and Gertha Coleman, but that the United Construction Work-
ers Union used the strike as a subterfuge in order to force Respondent to recog-
nize it as a bargaining agent, although it did not represent a majority of Re-
spondent's employees. Respondent filed with its original answer, a motion to
dismiss Case No. 10-CA-227 on the ground that the charge filed by Imogene B.
Crawford was instigated, prepared, and was being prosecuted by the United Con-
struction Workers Union, which it alleges is not in compliance with, Section 9
(f), (g), and .(h) of the Act, and that Crawford is not in truth the representative
or agent of the employees named in the complaint. Respondent also filed with its
answer, a motion to make the complaint more specific. Ruling upon said motions
of Respondent was reserved for and transferred to the Trial Examiner by order
of the Regional Director for the Tenth Region, dated October 26, 1948. By order
dated November 1, 1948, Robert L. Piper, a Trial Examiner duly designated by
the Chief Trial Examiner, denied the motion to dismiss the complaint in Case
No. 10-CA-227, and granted in part and denied in part, the motion to make
the complaint more specific. A response to the order to make the complaint more
specific was served upon Respondent by the General Counsel on November 9,
1948.
Pursuant to notice, a hearing was held at Macon, Georgia, from February 23,
1949, to March 11, 1949, inclusive, before John Lewis, the undersigned Trial
Examiner, duly designated by the Chief Trial Examiner. All parties participated
in the hearing except the Amalgamated Clothing Workers of America, C. I. 0.,
which did not appear, and all parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence bearing on
the issues. At the opening of the hearing a motion by Respondent to sever
the case based upon the charge filed by the Amalgamated Clothing Workers Union
was denied by the undersigned. Respondent also renewed its previous motions
to make the complaint more specific and to dismiss Case No. 10-CA-227. The
latter motion was denied by the undersigned.' The former motion was denied
with leave to Respondent to renew in the event that it should appear from the
amended complaint that further specification was required in order to comply
with the order of Trial Examiner Piper. Respondent also moved at the outset of
the hearing for sequestration of witnesses. The undersigned granted this motion,
except as to persons alleged in the complaint to have been discriminatorily dis-
charged or refused reinstatement and who would be called as witnesses for the
purpose of establishing the circumstances surrounding their discharge or refusal
of reinstatement. A subsequent motion by the General Counsel to exclude Lucien
L. James, superintendent of Respondent's plant, from the hearing during the
testimony of other witnesses was denied by the undersigned. During the course
3 See United Engineering Company, 84 NLRB 74.
HAPP BROTHERSi COMPANY, INC . 1527
of the hearing, a petition by Harry W. Livingston, Regional Director of the
United Construction Workers Union, to revoke a subpoena duces tecum served
upon him by Respondent to produce certain union records, was granted by the
undersigned. At the conclusion of the General Counsel's case-in-chief, a motion
by Respondent to dismiss the complaint, insofar as it alleged the discharges
or refusal to reinstate the persons therein named, was denied by the undersigned.
At the conclusion of the hearing, motions by the General Counsel and the
Respondent to conform the pleadings with the proof as to spelling, typographical
errors, dates, and other minor matters were granted. Respondent also renewed
its motion to dismiss the complaint with respect to the discharges. Ruling on
this motion was reserved and said motion is disposed of in accordance with the
findings, conclusions, and recommendations hereinafter made. The undersigned
advised the parties that they could make oral argument before him and file
briefs or proposed findings of fact, and conclusions of law, or both. The
'Respondent stated that it did not desire further oral argument as it had already
indicated its position in connection with the motion to dismiss at the end of
the General Counsel's case and also because it intended to file a brief. The
General Counsel made brief argument before the undersigned. A brief was
subsequently filed by the Respondent.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
t
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Happ Brothers Company, Inc., is a corporation organized
under the laws of the State of Georgia, maintaining its principal office and place
of business at Macon, Georgia, where it is engaged in the manufacture, sale,
and distribution of trousers and jackets. The Respondent, in the course and
conduct of its business operations at its Macon plant, during a 12-month period
ending June 15, 1948, which period is representative of the times material herein,
purchased raw materials consisting principally of rayon, wool, and cotton valued
in excess of $1,000,000, approximately 90 percent of which was purchased outside
the State of Georgia and shipped in interstate commerce to its Macon plant.
During the same period, the Respondent manufactured, sold, and distributed
finished products, consisting principally of trousers and jackets, valued in excess
of $1,000,000, approximately 90 percent of which was sold and shipped to
customers outside the State of Georgia.4 The undersigned finds, and concludes
that the Respondent , at all times material herein, was and is engaged in commerce
within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
Amalgamated Clothing Workers of America, affiliated with the Congress of
Industrial Organizations; Local 223 of the United Construction Workers, affili-
ated with United Mine Workers of America ; United Garment Workers of
America, A. F. L.; and the Shop Committee, unaffiliated, are labor organiza-
tions admitting to membership employees of the Respondent.
4 The above findings are based principally on the allegations of the complaint which are
admitted in Respondent 's answer.
1528 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Background and sequence of events
During the period at issue the active heads of the Respondent Company,.were
Morris Michael, Jr., its general manager and secretary-treasurer, and his brother,
Bert Michael, its vice president. The firm was founded in 1907 by their father,
Morris Michael, Sr., and the two Happ brothers. One of the Happ brothers
retired in 1936 and the other, while still with the firm, is inactive in the man-
agement of its affairs. Upon the death of Morris Michael, Sr., in September
1943, Morris Michael, Jr., became the active managerial head of the firm. His
brother, Bert Michael, who was then serving in the Armed Forces returned in
1946 to assist his brother in the production end of the business. Assisting the
Michael brothers in a supervisory capacity are Lucien James, who has been
employed as superintendent of the plant for 18 years ; Mrs. E. L. Bush, forelady
of Department A of the plant ; Mrs. A. L. Haisten,5 forelady of Department B ;
and Mrs. Leona Adkins, forelady of Department C.
The earliest evidence of collective activity among Respondent's employees is a
closed-shop contract between the Company and .the United Garment Workers'
Union from 1909 to 1921. There is no evidence of further contractual relations
with any union until 1940, when another contract for a period of 1 year was
entered into with the United Garment Workers' Union, after a consent election
under Board auspices.' After the expiration of this contract the Union remained
inactive until about 1945?
In the latter part of 1944 or early in 1945 the Garment Workers' Union again
became active, and after disclosing to Morris Michael, Jr. that they had signed
up a majority of the employees, a 1-year contract was signed in February 1945.
When this contract expired Michael declined to sign another contract without
a Board election. Such an election was held in February 1946 in which the
Union received 256 votes as against 32 votes cast against it. Another contract
was then entered into. At Michael's request the anniversary date of the con-
tract was changed from February to November. The events at issue occurred
around and after the expiration of this last contract in November 1947.
When the 1946-47 contract was about to expire, Morris Michael, Jr., advised
the Union and the employees that the Company was not going to renew the
contract since it was his belief that the Union no longer represented a majority
of the employees and because the Union had turned the factory into two armed
camps. He also made a speech to the employees during November 1947 on the
subject of the Union which the General Counsel claims violated Section 8 (a)
(1) of the Act and which will hereafter be discussed in greater detail. There-
after the employees elected a shop committee to deal with management, which
committee the General Counsel contends was dominated by ,Respondent, both
5 Haisten is also referred to in the transcript as Hastings.
a Morris Michael, Jr., who was not then active in the firm, testified that from 1921 to
1929 the Company "dealt" with the same union, but that he knew of no formal contract
between the parties.
I According to the testimony of Mrs. F. P. Gardner and Imogene Crawford, the union
forces began to disintegrate in 1942 or 1943 after the president and vice president of the
Union took over the operation of the Company's cafeteria, which was operated on a con-
cession basis. Gardner testified that the membership "felt like they were being sold, or
something, down the river." There is no evidence in the record that Respondent' s granting
of this concession to the union officials was motivated by any desire to undermine the
Union, and for purposes of this proceeding the undersigned finds it unnecessary to make
any findings of fact with respect to this matter.
HAPP BROTHERS COMPANY, INC. 1529
in its inception and in its operation, in violation of Section 8 (a) (2) of. the
Act.
After Michael's refusal to renew the United Garment Workers contract, the
Amalgamated Clothing Workers (C. I. 0.) entered upon the scene and tried to
organize the employees. In the meantime, the Garment Workers had petitioned
the Board for an election to determine a bargaining representative and the
Amalgamated Clothing Workers intervened in this election. In January 1948,
as a result of the invitation of Crawford, president of the Garment Workers'
Local, the United Construction Workers came in to organize the employees.
Crawford circulated a petition to decertify the Garment Workers Union which
was later filed with the Board. The Garment Workers subsequently withdrew
its petition for an election.
The Construction Workers held a meeting during the latter part of January
1948, at which a number of the employees signed union cards. The Union sub-
sequently engaged in a house-to-house campaign in which a number of other
employees signed union cards. Among those who participated in the organiz-
ing campaign of the Construction Workers were Gertha Coleman and Gladys
Dickson, both of whom were discharged by Respondent several weeks later.
Bert Michael made a speech to the employees on February 17, 1948,.about the
visits by the organizing committee to employees' homes, which the General
Counsel claims violated Section 8 (a) (1) of the Act and which will hereafter
be discussed in greater detail. On February 12, 1948, Harry W. Livingston,
regional director of the Construction Workers Union, wrote a letter to the
Company stating that a majority of the employees had joined the Union and he
requested a conference with Morris Michael, Jr. The latter replied on February
13, 1948, that the Company did not wish to enter into any discussion with the
Union since "we are confident that our employees do not desire any outside
representation."
On February 20, 1948, Respondent discharged Dickson, Coleman, and a third
employee, Jane Yarbrough,' the reason given being that they were deficient in
their production. These girls reported their discharge to the Union and at a
meeting called for February 22, 1948, the members voted to go on strike begin-
ning the next day, February 23, 1948. On February 23, 1948, the- strike began,
with approximately 150 employees participating. On the same day, the Com-
pany announced to its employees through the medium of the local radio station
that all employees who did not return to work the following day would be treated
as-having quit their jobs. Similar reports appeared in the local press. A num•
her of employees returned to work the following day but approximately 100
still remained out. On March 15, 1948, the Company addressed a letter to most
of the strikers advising them that they had been replaced when they failed to
return to work and that on the basis of then existing conditions it did not
appear that they could then be reemployed. The employees were also advised
that the Company was notifying the insurance company in which they were
insured under a group insurance policy that their employment had been termi-
nated as of March 15 and suggesting that the employees communicate with
the insurance company if they wished to convert their interest in the group
policy into an ordinary life policy. The letter also mentioned that if business
conditions improved or openings arose they would be given "first consideration"
if they saw fit to apply for their old jobs.
8 Yarbfough's name is not mentioned in the complaint or in the charges filed as being
one of the persons discriminatorily discharged.
1530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the meantime, prior to the receipt of this letter and subsequent thereto,
several of the strikers applied for reinstatement but were turned down, either
for the reason that there was no opening or that they failed to comply with a
company rule requiring notification to the supervisor as to the reason for ab-
sence. Subsequently, around October 10, 1948, one of these employees, Myrtle
Matthews was rehired. The picket line continued on a diminishing basis as
various of the strikers secured. employment elsewhere until June 1948 when
it broke up altogether. Outside of the few employees who personally requested
reinstatement in the few-month period after the strike, no other applications
were made until January 24, 1949, when most of the strikers addressed a form
letter,. prepared by the Union, to the Company asking that the letter "be con-
sidered as an application for a job" in the plant and stating that the employee
could report for work at any time.. Subsequently, one of the strikers, Maude
Thompson, was offered a job and accepted ; another, George Stapleton, declined
because he had to give his new employer a week's notice, but Respondent was
unwilling to wait that long.
In September 1948, Emma Lee Burnley, who was a union member but did not
participate in the strike, was denied reinstatement when she sought to return
from a period of absence. The General Counsel claims that the refusal to re-
instate Burnley was based on discriminatory motives, in violation of - Section
8 (a) (3) of the Act.
B. Interference, restraint, and coercion
Most of the incidents by which the General Counsel contends Respondent in-
terfered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act occurred prior to the strike. These inci-
dents are discussed below in connection with the name of the supervisory official
of Respondent who was alleged to have been responsible therefor.
Morris Michael, Jr.: During the early part of October 1947, the international
representative of the United Garment Workers, Sallie D. Clinebelle, and officials
of the local Union, Mrs. F. P. Gardner and Imogene B. Crawford, went to see
Morris Michael, Jr., regarding a renewal of the contract which was about to
expire in November 1947. Michael told them that he was satisfied that a majority
of the employees did not want a union and that the Company was not going to
renew its contract with the Garment Workers. Clinebelle asked him if he would
agree to an election to determine the Union's majority and Michael refused, stat-
ing that there had already been two elections conducted by the Board and that
they had not been fair. Michael further stated, according to Gardner, that
under the Taft-Hartley Law he could meet with the union representatives "week
after week and show that he was bargaining in good faith, but he did not have
to sign a contract." In the course of the discussion Michael also stated, accord-
ing to Gardner, that if he could get each member of the Union "into a sound-
proof room for just a short while at a time" and talk to them they "would not
ever want to hear of another union." Several days later a committee of union
members from the plant met with Michael at the regular weekly meeting which
he held with union representatives. In the course of the discussion Michael again
refused to renew his contract with the Union and repeated the remarks made
at. the previous meeting about not having to sign a contract under the Taft-
Hartley Law and that if he could get each member in a soundproof room they
would never want to hear of another union.
HAPP BROTHERS, COMPANY, INC. 1531
Although the undersigned finds that these incidents took place substantially
as above related,' the statements made by Michael in the course of these discus-
sions do' not, in the opinion of the undersigned, constitute a violation of Section
8 (a) (1) of the Act. The statement regarding the soundproof room is too am-
biguous to base any finding of interference, restraint, or coercion thereon."
While the Board has held that statements indicating a fixed determination not to
recognize or deal with any labor organization are a violation of Section 8 (a)
(1)," Michael's refusal to recognize the Garment Workers Union any further or
agree to an election, and his statement that under the Taft-Hartley Law he could
negotiate with the Union week after week without having to sign a contract do
not fall within this category. At best they would furnish the basis for a charge
of refusal to bargain in good faith with the Garment Workers Union in violation
of Section 8 (a) (5) of the Act, and derivatively, in violation of Section 8 (a) (1).
However, no such charge was filed and no allegation to this effect was made in
the complaint.
In the early part of November 1947 Michael assembled all the employees in the
plant and made a speech to them which the General Counsel claims contains state-
ments violative of Section 8 (a) (1) of the Act. According to the testimony of
Crawford, he told the employees that he was not going to sign another contract;
that he did not want anyone coming in and running his affairs ; and that the
Union was not going to get them anything that the firm would not give them with-
out a union. He also promised the employees a 10 percent raise and suggested that
a shop committee be set up to represent the employees. Gardner's testimony was
to similar effect and she also testified that Michael "asked us to give him one year
without the Union, and see if we didn't get along better and was better satisfied
than we would be with the Union." Several other witnesses called by the General
Counsel also testified that Michael stated he wouldn't deal with a union and
asked the employees to give him a year without a union to see if they wouldn't be
happier without it.
Michael testified that the only speech made to the employees during this period
was a speech which he read to them from a paper held in his hand. This speech,
a copy of which was introduced in evidence, reads as follows :
Today this factory is under no written contract with any outside organi-
zation.
I know you have heard many things about what we, the management,
would do as soon as we were free of the union contract. I do not think the
older employees have believed that Happ Bros. Co. would rush in to cut
wages, take away vacations, or in any way change our present method of
U The above findings are based on the credited testimony of Crawford and Gardner, both
of whom impressed the undersigned very favorably upon the witness stand. Michael
admitted having a conversation with Clinebelle, Crawford, and Gardner around October'
3, 1947, regarding a renewal of a contract . Likewise , while he could not recall any
specific meeting with the union committee , he did not deny having met regularly with
such a committee. He denied, however, having made the remark about the soundproof
room or his bargaining obligation under the Taft -Hartley Law at either meeting. From
all the testimony and from his observation of the demeanor of these witnesses on the
stand , the undersigned is'satisfied that the statements attributed to Michael by Crawford
and Gardner were made substantially as they testified.
'° Neither Crawford nor Gardner seemed to have any definite understanding of what
was meant by this remark.
Federal Engineering Company, Inc., 60 NLRB 592 enfd. as mod., 153 F. 2d 233 (C. A.
6) ; American Book-Stratford Press, Inc ., 80 NLRB 914.
1-532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operation ; but to settle any doubt in any of your minds let me tell you that
we will make absolutely no change in the operation of this plant. Every pro.
cedure, such as seniority rights, vacations, rest periods, etc., will remain as is.
Happ has always believed in giving its employees the best it has to give
and needs no outside prodding to make it do so. We believe we will prove
to you in the year to come that you will be well satisfied with our manage-
ment and rates of pay and, besides, you will see a happier factory, free of
petty squabbles and arguments among the employees.
I told you everything would remain as is. There is one exception. On
December 1 you will get a 10111o raise. This raise should certainly eliminate
deficiencies. Since 1942 we have given our employees raises totaling 110%
which means that every operator who made the minimum of .40 per hour
in 1942 should, if she maintains the same production, earn .82 an hour now.
So, there is no excuse for any employee not making at least the .50 minimum.
There is another thing I want you to understand. Neither I nor any inem
ber of this firm holds the slightest grudge against those employees who have
tried to. sell you on the idea of a union in this factory. This is a free coun-
try and you have a perfect right to have had those ideas but now that the
union is gone let's pitch in and see if you and all the other ladies in this fac-
tory are not happier without the union. Let's try it for a year without a
union. If at any time the majority want a union, that's all right with me.
If you wanta shop committee to deal with Mr. James, my brother and me
in ironing out difficulties. and improving working conditions that is fine.
We will be glad to work with any shop committee chosen by you.
But there is another thing which I want to impress upon you and that is
I think the most important part of my job at Happ Bros. is to see that you
have a full opportunity to bring to me personally at any time of the day
any individual complaint or suggestion which you want to make. If the shop
committee is overlooking or neglecting a complaint; if something is wrong
with your piece rate ; or anything is happening in this factory which you
don't like and you don't think action is being taken fast enough to change it,
all you have got. to do is to come down to my office and tell me so. I don't
guarantee that I can change everything that you want changed, but I will
Certainly look into it and give you a reason why if it can't be done. All you
have got to do is to tell Mr. James you have 'a matter which you want to dis-
cuss with me. You don't have to tell him what it is. He will gladly let you
off without any loss of time to come down and see me.
Michael denied making any statements to his employees not covered by the written
statement from which he was reading. Both Gardner and Crawford admitted
that the speech was being read from a paper which Michael held in his hand.
They were not called in rebuttal to deny that this was the speech Michael made.
The undersigned credits Michael's testimony regarding the speech that he made
and attributes any variations between this speech and the testimony of Crawford,
Gardner, and several other employees to the infirmity of human memory.
Although the emphasis and tenor of Michael's remarks are somewhat less
severe than that suggested by the employees who testified for the General
Counsel, nevertheless, in the opinion of the undersigned, certain portions of
the speech extend beyond the permissible limits of Section 8 (c) of the Act and
are in violation of Section 8 (a) (1). Thus, promising employees ' a pay in-
crease immediately after Respondent's refusal,to renew the union contract had
the evident purpose and effect of winning the employees away from the previously
HAPP BRO'THEiRS, COMPANY, INC. 1533
recognized bargaining agent and interfering with the free engagement by the
employees in concerted activity, in violation of Section 8 (a) (1) of the Act.12
The request that the employees refrain from union activity for a year, in con-
nection with the promise of a present increase of 10 percent and the clear im-
plication of further benefits in the future, also constitute interference with the
free choice of the employees.13 The implications of the speech insofar as the
reference to a shop committee is concerned is hereinafter discussed.
Mrs. A. L. Haisten: In the early part of December, during the Amalgamated
Clothing Workers' organizing campaign, Forelady Haisten asked Bessie Phillips,
according to the testimony of the latter, whether she had been to a meeting held
by that union the previous evening. When Phillips replied that she had, Haisten
said to her, according to Phillips' testimony, "What in the world you all doing?
Don't you know if you sign up with the C. I. 0., you all are going to lose your
jobs?" Another employee, -Minnie Lee Atkinson testified that during the same
period she spoke to Haisten about a production ticket she had lost, and asked
her for another ticket.14 Haisten replied that she was not going to do anything-
about it and added, "I suppose that's the way the C. I. O. get their information."
Atkinson went to see Superintendent James about this incident and when she
reached his office she found Haisten already there. When she told James
what had happened he told her that he had spoken to Mrs. Haisten "about those
remarks" and asked Atkinson to forget about it. Another employee,. Viola
Stapleton, testified that during December 1947, Haisten told her that if the em-
ployees "got tied up with the C. I. O. and John L. Lewis, they'd work side-by-side
with -Negroes." A similar statement was alleged to have been made to employee
Eddie Dean Davis, who testified that in February before the strike Haisten
told her, "Mrs. Davis, don't you know if you all get the Union up here, you'll
be sitting up here by niggers?" Employee Annie Bell Kitchens testified that
in December, Hastings while standing at her machine, asked her if the "CIO
man" had been to see her; that Haisten also said that if the girls "messed with
the C. I. 0." they would lose their jobs. Haisten denied interrogating any of the
witnesses or making any of the statements attributed to her by them.
From his observation of these witnesses and his evaluation of their testimony,
the undersigned finds that Haisten made the statements substantially as testified
to by Phillips, Atkinson, Stapleton, Davis, and Kitchens.15 The undersigned
further finds and concludes that by the action of Haisten in asking employees
whether they had gone to a union meeting or whether union representatives had
been to see them, in. appealing to racial prejudice, and in threatening them with
loss of their jobs, Respondent interfered with, restrained, and coerced its em-
12 May Department Stores v. N. L. R. B., 326 U. S. 376; Beatrice Foods Co., 84 NLRB 493 ;
Wytheville Knitting Mills, Inc., 78 NLRB 640, enfd. as mod., 175 F. 2d 238 (C. A. 3) ;
N. L. R. B. v. Ford Bros., 170 F. 2d 735 (C. A. 6). 73 NLRB 44.
1a Gulfport Transport Co., 84 NLRB 613.
1# This is a ticket which is attached to the bundles of work and which the employees
cut off and sew into their work book when they complete a bundle of work. Their piece-
.rate earnings are computed on the basis of these tickets.
15 Phillips, Stapleton, Atkinson, Kitchens, and Davis all impressed the undersigned
favorably upon the witness stand. They all appeared to make an honest effort to relate
the facts about which they testified, to the best of their recollection, and were not ma-
terially impeached on cross-examination. . Haisten, on the other hand, did not make a
favorable impression on the undersigned. She was evasive and exhibited a poor recollection
.on cross-examination regarding the details of the matters to which she had testified on.
direct examination.
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees in the exercise of the rights guaranteed by Section 7 of the Act b No such
finding, however, is based on the remark made by Haisten to Atkinson, "I sup-
pose that's the way the C. I. 0. get their information," in view of the ambiguous
character of this remark.''`
Bert Michael: Kate Crumbley testified that when she was hired on October 22,
1947, Bert Michael asked her whether she had ever been a union member ; that
she told him that she had belonged to a union when she worked in a clothing fac-
tory in Cordele, Georgia ; and that Michael said to her that he didn't have a union
in the plant and didn't intend to have one. Michael denied making any such
statement to Crumbley and claimed that at that time the statement was alleged
to have been made he actually had a contract with the Garment Workers Union.
The evidence discloses that on October 3, 1947, Respondent addressed a letter to
all employees advising them it was not going to renew its contract. It was at
about this time that the meeting referred to above, with Clinebelle, Crawford,
and Gardner took place in which these union officials were informed that the
contract would not be renewed. From his observation of the witnesses and from
the testimony as a whole, the undersigned is satisfied that Crumbley's testimony
substantially accords with the facts.18 The undersigned finds that by interrogat-
ing Crumbley and making the statement attributed to him by Crumbley, Michael
violated Section 8 (a) (1) of the Act 19
Shortly before the strike, and while the Construction Workers Union was
engaged in a house-to-house campaign to secure union members, Bert Michael
made a speech to the employees in the plant which the General Counsel claims
violated Section 8 (a) (1) of the Act. According to the testimony of employees
Crawford, Eddie Dean Davis, and Margaret Carter, Michael stated that he had
heard union representatives were visiting the homes of employees ; that he could
not help what went on outside the plant but could control what went on inside ;
that he couldn't tell employees not to join the Union but that he wanted them
to know that they didn't have to join any union and that he was not going to
sign another contract or have another union in the plant. Several employee
witnesses called by Respondent denied that in his speech Bert Michael made any
statement to the effect that he was not going to sign a contract or that he was
not going to have another union in the plant. Bert Michael himself testified
that the only speech which he made to the employees during the period was one
which he read to them from a paper held in his hand. This speech, a copy of
which was received in evidence, was as follows :
Many of you have come to us with reference to the house to house cam-
paign of a few of our employees to revive a union in our plant.
You have complained to us of the manner in which this is being done
such as high pressure tactics, threats, etc.
'ON. L. R. B. v. Ford Bros ., supra; Standard -Coosa-Thatcher Co., 85 NLRB 1358;
Wytheville Knitting Mills, supra ; S. K. Wellman Co., 53 NLRB 214; Reeves Rubber Co.,
70 NLRB 377; Premier Worsted Mills, 85 NLRB 985; Anchor Rug Mill, 85 NLRB 764.
17 According to Atkinson the implication of this remark was that if the union officials
got hold of the card they could get the piece-rates from it.
18 Crumbley appeared to be a disinterested witness with no stake in the outcome of the
proceeding . She was not a union member while she worked for the Respondent. She
refused to join the Amalgamated Clothing Workers during its drive, as will appear later
from the discussion of the incident involving her and Coleman . She voluntarily left
Respondent's employ before the strike started and reapplied for work about a month after
the beginning of the strike while the picket line was still being maintained around the
plant. She was rehired and remained with the Company until 3 months later when she
voluntarily quit again. '
19 Standard-Coosa-Thatcher Co., supra; Federal Engineering Co., supra.
HAPP BROTHEIRS, COMPANY, INC. 1535
You have asked us what could be done about it-and I can answer you
in this manner . We have no say-so in what you do when you are,not
working-we have no say-so in what you wish to join or not join-we have no
say-so in whether you vote Democratic or Republican.
But we do have a large say-so in seeing that we have a peaceful happy
factory while the machines are moving. We say that we honestly believe
that our factory is more peaceful and happy now than in years.
We have always told you that we want the majority to have what they
want in the the factory. We mean this. But we want a majority that has
given careful thought to the matter to decide, not a rabid few gaining the
majority by threats and false promises.
So, I can answer those who have asked me in this way. Pay no atten-
tion to threats-they mean nothing. Make up your own mind how you
feel about this and then have the courage to obey your convictions.
The General Counsel offered no evidence to show that the speech was not read
or that Michael omitted from or added to his remarks anything not contained
in the paper . from which he read.20 Under the circumstances , the undersigned
finds that the speech made by Bert Michael was that which he read from the
paper, and further finds and concludes that there was nothing in the speech
violative of Section 8 (a) (1) of the Act.
Mrs. E. L. Bush: Doris Hopkins testified that in October 1947 Forelady Bush
asked her whether she was a union member. Bush denied asking Hopkins
whether she belonged to the Union. On the basis of his observation of the
witnesses and from their testimony as a whole , the undersigned credits Hopkins'
testimony and finds that by so interrogating Hopkins, Respondent violated Sec-
tion S (a) (1) of the Act n
Inez Brown testified that in February 1948 she was present at an argument
between Jane Yarbrough -and Rose Maddox, in which Yarbrough accused Mad-
dox of telling Forelady Bush that she (Yarbrough ) had signed a union card.
During the course of the discussion Bush came over and said to them, "Well,
don't be discussing no union on the job. We 're not in no union, we 're not going
to have it." Bush denied having overheard the argument between Yarbrough
and Maddox but did not directly deny having made the statement attributed
to her by Brown . From his observation of these witnesses and evaluation of
their testimony , the undersigned credits Brown ' s version of this incident and
finds that by Bush's statement that "we're not going to have" any union, Re-
spondent violated Section 8 (a) (1) of the Act.22
Margaret Carter testified that in February 1948 she overheard a conversa-
tion between Bush and Head Mechanic B. B. Smith in which they were discussing
the house -to-house union campaign , and Bush said that the union representa-
tives hadn't been to see her. but that if they did "she knew how to get rid of
them real quick." This remark was denied in their testimony by both Bush
and Smith . The undersigned finds it unnecessary to make any finding of fact
on this issue since even if the remark was made it did not, under the circum-
stances, constitute a violation of Section 8 (a) (1) of the Act.
20 The only witness called by the General Counsel who was asked whether the speech
was read from a paper , Carter , testified that she didn't remember.
21 Federal Engineering Company, Inc ., supra ; American Book-Stratford Press, Inc., supra.
2' Hopkins was a disinterested witness. She was not a union member and did not
participate in the strike , having left Respondent 's employ voluntarily about 2 months
previously . As hereafter appears, the undersigned did not find Bush to be a reliable witness.
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mrs. Albert Atkins: Eddie Dean Davis testified that about 2 or 3 weeks before
the strike Forelady Atkins came over to her and said she was "so mad she didn't
know what to do" because Crawford was "trying to run Rapp Brothers" ; and
that Atkins also said to her, "If you operators knew what I do, you'd stop this
foolishness. If I was an operator and didn't want to work under Mr. Michael,
I'd quit." Atkins denied having told Davis that if the operators knew what
she did they would stop the foolishness. The undersigned finds it unnecessary
to resolve the credibility issue arising from this difference in the testimony
since even if the statements attributed to Atkins by Davis were made, they
would not constitute a violation of the Act
Gardner testified that Atkins several times stated that the employees "didn't
need a union" in the plant. Adkins did not deny making these statements.
However, assuming they were made, and considering the general nature of the
testimony, the undersigned finds the statements protected by Section 8 (c) of
the Act.
B. B. Smith:.' Robert AV. Brown testified that around the middle of November
1947 Smith told him that he wished "the Union were out" and "wouldn't ever
get back in"; and that Smith also asked him whether he was a member of the
Union. Smith denied the statements attributed to him. From his observation
of the witnesses and an evaluation of. their testimony as a whole, the under-
signed credits Brown's testimony regarding this incident and finds that by in-
terrogating Brown as to his union membership Respondent violated Section
8 (a) (1) of the Act. No finding of violation is made, however, on the basis of
the other statements of Smith.
Lucien James: Eloise Cromer, a union member who stayed out of the plant
for a few hours after the strike started but later returned to work, testified
that after she returned Superintendent James asked her if she knew whether
another employee, Vivian Calhoun, was for the Union or not; that she told him
she didn't know ; and that he asked her if she knew anyone else still working
who was for the Union. Katie Crumbley, who quit voluntarily about 2 weeks
before the strike and reapplied for work about a month after it started, testified
that when she spoke to James about being rehired he asked her whether she was
a member of the Union and whether she haq been out on strike. James denied
interrogating both Cromer and Crumbley. The undersigned did not find James
to be a reliable witness, as will hereafter more fully appear, and does not credit
his denials. The undersigned finds and concludes that by the interrogation of
Cromer and Crumbley, Respondent violated Section 8 (a) (1) of the Act.
Other acts of interference: Several of the witnesses called by the General
Counsel claimed that Respondent's supervisory staff favored nonunion over
union employees. Thus, there was testimony by Annie Kitchens that Forelady
dlaisten allowed nonunion operators to go to the bin and pick out whatever
23 Respondent contested the supervisory status of Smith. Although Smith made a strenu-
ous effort to belittle the extent of his authority, it appears from the record and the under-
signed finds that Smith gave work orders to at least two mechanics or apprentice machin-
ists, that he directed their work, that he recommended thin for pay increases, and that he
reported them for absences. Despite Smith's testimony, which was generally evasive and.
not worthy of credit, that lie voted in the 1946 Board election, Respondent subsequently
stipulated that.his name was not listed as an eligible voter in that election. His prede-
cessor, E. C. Hall, was excluded from the 1941 election as a supervisory employee. From
all the evidence the undersigned concludes and finds that, Smith had authority responsibly
to direct other employees, to assign them, and to effectively recommend reward, discipline,
or discharge of other employees, and that he was a supervisory employee within .the mean-
ing of Section 2 (11) of the Act.
HAPP BROTHEiRS ' COMPANY, INC. 1537
work they wanted to ; and also that nonunion employees were permitted to
work overtime. The undersigned found Kitchens' testimony on this subject
confused and lacking in detail, and although there was no specific denial by
11aisten, the undersigned does not base any finding of interference on this
testimony. There was also testimony by Eddie Dean Davis that Haisten favored
Geraldine Grubbs, a nonunion employee, by giving her work when other em-
ployees had to go home. However, it appears from the testimony of Grubbs
and Haisten that the extra work the former was given was on the bradding
machine, a special machine used in putting on zippers, and that this was heavy
work which most of the older employees were reluctant to do. From the testi-
mony as a whole, the undersigned is not convinced that there was any show of
partiality based on the assignment of work to Grubbs.
Conclusion
The undersigned has found that Respondent has engaged in various acts of
interference, restraint, and coercion violative of Section 8 (a) (1) of the Act.
However, certain allegations of the complaint charging other violations of this
section were not sustained by the evidence and the undersigned will recommend
dismissal of these portions of the complaint. 't'here was no direct evidence of
surveillance by Respondent's officials as alleged in the complaint. Although the
questioning and interrogation of employees may be closely related to surveillance
they are covered by a separate part of the complaint and findings on that subject
have been made above. It will therefore be recommended that the allegation of
surveillance be dismissed. The allegation of discrimination between union and
non-union employees with regard to type of work, the performance of overtime,
and assistance is not sustained by the evidence and dismissal will be recom-
mended. The allegation with regard to talking to employees in a soundproof
room, although sustained by the evidence, does not establish any violation of
the Act and dismissal thereof will be recommended. The allegation that the
plant would be closed before allowing a union to come in was not sustained by
the evidence and dismissal thereof will be recommended.
C. The discharges of Coleman and Dickson
1. Introduction
Gertha Coleman and Gladys Dickson were both employed by Respondent as
banding operators until their discharge on February 20, 1948. Both are alleged
to have been discharged because of their sustained production deficiencies. At the
time of the discharges Coleman had been employed for approximately 7 months
and Dickson for a little over 3 mouths. According to the General Counsel, Dick-
son's and Coleman's production deficiency was merely a pretext for their dis-
charge, the real cause being the active part they played in the organizing cam-
paign of the United Construction Workers Union.
The banding operation on which they were employed involves basically the
sewing of the narrow strip of material or "band" to the top of a pair of trousers.
It includes a series of incidential operations such as attaching the fly of the
trousers to the band, sewing on the lining, sewing on and tacking down the belt
loops, and cording the band. Prior to July 1947 each banding operator per-
formed all of the operations incidental to sewing on the band. In July, Respond-
ent found itself with a shortage of banding operators due to a rapid turnover in
993847-51-vol. 99-9S
1538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
banding personnel. In order to speed up the process of training new operators
and to make it easier to replace operators when they left, Respondent instituted
a new method of performing the banding operation. It split the banding opera-
tion into a series of seven separate operations and trained new employees on
only a single operation. Beginning the last week in July, Respondent began
hiring new operators on the new type of banding which came to be known as
"simplified" or "line" banding. Most of the old banders were not changed to
the new method but continued with what was called the "regular" banding
operation.
The regular banders were paid $1.94 per dozen garments banded. The piece-
rate schedule for the line banders varied according to the complexity of the
particular section of the banding operation which the operator performed, but
the rates paid for all seven operations totaled ($1.8048) 1 dollar and 80.48 cents
per dozen. All operators in the plant, including the banders, were guaranteed
a minimum of 50 cents per hour. Where an employee 's piece-rate earnings failed
to average 50 cents per hour for the workweek, the difference between the guar-
anteed hourly earnings paid and the amount earned on a piece-rate basis was
recorded in the payroll records as a "deficiency" and the "Statement of Earnings"
given to the employee with her check indicated the amount of such deficiency by
the letter "d." The employees, however, were never charged with the amount of
such deficiency as repayable obligation.
2. Gertha Coleman
Coleman was hired on July 23, 1947, as one of the first operators on the line
handing system. Coleman's production record discloses that, except for the
month of September 1947,24 she was regularly deficient in production, i. e., her
piece-rate earnings failed to equal her guaranteed hourly earnings. In addition
to suggesting that the production quota on her operation was too high in relation
to the piece-rates, Coleman also ascribed her production deficiencies to the fact
that she was not properly advised as to the piece-rate basis of her earnings ; that
she and the other line banders did not receive extra compensation for work on
large size and on certain types of material, such as sharkskin; that the line
banders were only permitted to have two bobbins while the regular banders had
four or Ave bobbins, thus necessitating more frequent changing of thread because
of the different colored materials ; that the line banders had to get their own work
from the bins while the regular banders had their work brought to.them by
bundle boys in the course of production ; and that because of the poor organiza-
tion of the line banding system, there were times when she would have to sit
u Transcripts of the production records of banding operators from the weeks ending
July 25 , 1947 to February 20, 1948, were received in evidence under a stipulation that they
accurately reflect the production deficiencies and earnings of the banding operators.
However, Respondent later questioned the accuracy of its own records . In his testimony,
Bert Michael claimed that the production records for the weeks ending September 5 to
September 26, 1947, which disclosed no deficiencies for about 14 line banders , including
Coleman, were inaccurate . When asked whether he based this conclusion on the fact the
records disclosed that these operators were regularly deficient in the period prior to Septem-
ber 5 and after September 20, Michael replied in the negative and stated that it was based on
his own independent recollection of the facts . However, later in his testimony it appeared
that he had no personal knowledge of deficiencies in the plant prior to December 1, 1947,
when his brother brought them to his attention . Despite the unsatisfactory nature of
Michael's explanation , the undersigned is convinced that the records for the month of Sep-
tember are not entirely accurate. The uninterrupted deficiencies of a number of the line
banders in the period prior to September 5 and the resumption of these deficiencies after
September 20 suggest a probable inaccuracy in the records for the intermediate period.
HAPP BROTHERS COMPANY, INC. 1539
idly at her machine waiting to get work from the girl performing the operation
antecedent to hers. According to Coleman, up until the day of her discharge, no
one had ever spoken to her about being deficient in production , although she
claimed Forelady Bush commended her a number of times on the neatness of her
work. The validity of these claims is hereafter discussed under "Contentions
and conclusions."
The earliest evidence of union activity on Coleman's part is her participation
in the drive of the Amalgamated Clothing Workers' Union which attempted to
organize the plant after the United Garment Workers' contract expired. During
December 1947 Coleman attended an organizing meeting of the Clothing Workers
at the Dempsey Hotel, the largest hotel in Macon. Coleman joined the Union and
received a book of union cards. She took the cards with her to the plant the next
day and succeeded in signing up about 8 employees. As a result of her organiza-
tional activities on behalf of the Clothing Workers, Coleman became involved in
an incident which resulted in her being sent to Bert Michael's office. Around
the middle of December, Coleman got into an argument with a number of the
girls at her table over the question of who was responsible for certain defective
work which had been returned by Bush to be repaired. As a result of the argu-
ment five or six girls, including Coleman, were taken to Bert Michael's office by
Bush. Although the record is not clear as to all the details of what occurred, it
is undisputed that Katie Crumbley, one of the operators at Coleman's table, said
that Coleman was really angry with her because Coleman regarded her as being
responsible for the withdrawal from the Union of Lucille Brewer, a sister-in-law
of Crumbley,2` and she accused Coleman of having passed around a union book
during working hours. The latter admitted that shetwas passing around the
union book but denied that it occurred during work hours. Several of the other
operators sided with Coleman but Doris Hopkins, whom Coleman had also tried
unsuccessfully to bring into the Union, told Michael that she too had seen Cole-
man passing the book during working hours. Michael finally told the girls to
stop their arguing and to go back and attend to their work. During the course
of the meeting Coleman told Michael she would like to be moved to another
machine as there was too much confusion at the table where she was working.
It does not appear whether any definite commitment was made to her by Michael
on this subject 2e
The following day when Superintendent James came into the room where
Coleman was working she asked him to move her to another machine. During
the course of the conversation, Coleman told James about the argument the
previous day and when she mentioned that it had started over some defective
work he replied, according to the undenied credited testimony of Coleman, "That's
not what I heard it started about."
Coleman subsequently repeated to Bush her request that she be transferred to
another machine. Although there is some confusion in the testimony as to when
Coleman was finally moved, the undersigned concludes and finds that Coleman
25 Coleman as part of her organizational activities had succeeded in getting Brewer to
sign a union card . Her efforts to get Crumbley to sign were not as successful and the
latter not only refused to sign but said she was going to get her sister-in -law to withdraw.
Thereafter , Brewer came to Coleman and asked her to tear up her union card and remove
her name from the union book . As a result of this incident there was some ill feeling
between Coleman and Crumbley since Coleman apparently regarded Crumbley as responsible
for Brewer 's withdrawal from the Union . The argument which resulted in the girls being
called to the office occurred a few days after Brewer had asked to withdraw from the Union.
24 The findings with regard to this incident are based on a synthesis of the testimony of
Coleman, Crumbley, Hopkins, Bush, and Michael.
1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was transferred to another machine during the week ending January 30, 1948.
Coleman also requested a transfer to the regular banding operation but when
her machine was changed she was put on another section of the line banding
operation.2'
For reasons not appearing in the record, the Amalgamated Clothing Work-
ers' Union ceased its organizing efforts and disappeared from the scene in
January 1945. When the United Construction 'Workers began its efforts to
organize the plant in January 1948, Coleman shifted her allegiance to that
organization. She attended her first meeting under the auspices of the latter
Union on January 27, 1948. She received a union card which she signed the
following day and she also took a dozen union cards with her which she dis-
tributed to other employees in the plant. In the next few days she succeeded
in getting all these cards signed. Coleman testified that her union solicitation
work took place in the morning before work and during the lunch hour and
that Bush was present in the plant part of the time while she was signing lip
members for the Union. On the morning of February 19, one of- the other
girls engaged in organizing activities handed her several union cards of peo-
ple she had signed up and asked her to give them to Crawford.
On February 20, 1948, Coleman was called to Bert Michael's office together
with Dickson and Jane Yarbrough. After some discussion about their pro-
duction deficiencies, which will hereafter be discussed in greater detail, all
three operators were discharged.
3. Gladys Dickson
Dickson started to work for Respondent on November 11, 1947. Her pro-
duction record discloses that she was deficient in production throughout the
period of her employment. Like Coleman, Dickson testified that she was not
told what production was on her operation until some time after she started
working and that she was not told until near the end of her employment that
she was supposed to receive extra pay for work on large sizes and on certain
types of material. Dickson also ascribed her difficulty in making production to
trouble with her machine." In addition she claimed that she was given another
27 Coleman testified that the transfer to the other part of the banding operation took
place about 21/a weeks before her discharge but her testimony suggested a previous change
of machine . Bush 's testimony would indicate a change in both machine and operation
about 6 weeks before Coleman's discharge. Instructor Kitchens testified that Coleman
was transferred to a different part of the banding operation around the first part of the
year, 19-1S, but was confused as to whether she had previously had a change of machine.
The production records themselves indicate that Coleman worked on mnchine number 184
from the week ending July 25, 1947, until the week ending January 23, 1948. Beginning
with the week ending January 30, 1948, until the date of her discharge, Coleman's machine
number is recorded as 238. . Lois Warrick, a witness for Respondent, whose machine
number was 239, testified that Coleman was moved next to her about a month before her
discharge. Both Coleman and Kitchens testified that when Coleman was moved she sat
next to Warrick . Based on the production records, as inferentially supported by the
testimony of Coleman, Warrick, and Kitchens, the undersigned is convinced that the
change of machine did not take place until the week ending January 30, and that either
simultaneously therewith or shortly thereafter Coleman was given another part of. the
banding operation to perform.
28 Dickson made no claim to having complained about her machine until about 3 weeks
before her discharge when she was called to James ' office. However, Instructor Kitchens
testified that Dickson previously complained to her about the machine. According to
Kitchens, the machine merely required an adjustment of the needle.
HAPP BROTHERS . COMPANY, 1NC. 1541
operation to perform as part of her regular operation for which she was not
paid.'
The earliest evidence of union activity by Dickson is in connection with
the organizing efforts of the United Construction Workers Union. On Janu-
ary 28, 1948, she received a union card from a fellow employee, Lois Carter, which
she signed and returned to Carter the following morning. On the evening of the
day she received the card from Carter, she had a telephone conversation with
another employee, Ida Mae Cheeks, and after talking about social matters the
subject of the Union entered the conversation. Dickson indicated she was con-
sidering signing a union card and asked Cheeks what she was going to do. The
latter said she was not going to sign a card and that she was satisfied with
her earnings. Dickson told her that she found it impossible to make production
on the line banding operation. The following day Dickson was called to James''
office 30 where both James and Bert Michael spoke to her about her low produc-
tion. James told her that if she wasn't "satisfied," it was better they separate.
Dickson replied that she hadn't said anything about not being "satisfied," where-
upon James replied that she had been talking to someone whom she thought was
a friend about not being satisfied and that the friend had come straight to him.
Dickson told James that she was not dissatisfied but just wanted to raise her
production up so she could take advantage of the ten percent increase in piece
rates that had been put into effect December 1 by Morris Michael, Jr. Dickson
also mentioned that she was having trouble with her machine and that she was
losing a lot of time on that account. Bush, who was also present during the
conversation, stated that Dickson tried hard and was a good operator. James
concluded by telling her to go back to work and instructed Bush to give her
another machine. After leaving James' office, Dickson was transferred to
another machine.
The conversation with James did not, however, lessen Dickson's interest in
the Union. The following clay, January 30, 1948, she attended a union meeting.
On February 13 she attended another meeting, at which the Regional Director
of the Union, Harry W. Livingston, asked for volunteers to go on a house-to-
house canvass of employees. Dickson volunteered for this job and together with
Crawford and another union organizer , Fred DeLoach, visited the homes of 19
employees on Sunday afternoon, February 15.
The following day, by prearrangement, Dickson met DeLoach in front of the
Crawford Restaurant which is located across the street from Respondent's fac-
tory. According to Dickson, while she and DeLoach were talking, they were
joined by two employees to whom she had, previously given union cards. One
of them held the card on the side of the building to sign her name and gave them
the card. The other signed it later while they were in the restaurant. Dickson
testified that while the conversation was in progress James and Bert Michael
19 This additional operation was referred to as "stitching across the top of the fly."
According to Dickson she never realized that this was a separate operation until she heard
the operation described in the testimony of Bessie Phillips , who worked on that operation.
Respondent contended that the operation which Dickson claimed was added to her regular
operation was merely an additional operation on the right side of the trouser fly which was
regularly performed by all operators on Dickson ' s operation and was not the same as
the separate operation known as "stitching across the top of the fly." The undersigned
concludes from all the testimony that Dickson was confused by the testimony of Phillips
and that in fact the additional operation to which she referred was part of her regular
operation . The undersigned is satisfied that . this additional operation had no connection
with Dickson's production deficiencies.
a Both James and Michael occupied the same office.
1542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
came out of the Happ Building across the street and stood looking in her direc-
tion 31 She likewise testified that she saw a number of employees at the fourth-
floor window of the plant, including Bush, Kitchens, and a Mrs. Pace (one of the
employees whose home she had visited the previous evening) and that they
appeared to be yelling and waving their arms in her direction. On cross-
examination Dickson was not sure that these four persons were the ones who
were waving at her, since there were a number of other people in the windows
at the time. She stated that she felt they were all looking at her. Dickson also
testified that after she saw James and Bert Michael come out of the plant, she
went into the restaurant with DeLoach.
Although DeLoach's testimony regarding this incident was substantially in
accord with Dickson's, they differed in two respects. Whereas Dickson had
testified that she couldn't hear what the people in the fourth-floor window were
saying, except that they were yelling, DeLoach claimed that he heard Mrs.. Pace
say, "There they are now." Also, while Dickson testified that upon seeing James
and Bert Michael across the street she went into the restaurant with DeLoach,
the latter testified that when he saw the' officials coming out of the plant he
called Dickson's attention to their presence and that she went back across the
street to the factory. Neither James nor Bert Michael recalled seeing Dickson
or DeLoach standing in conversation across from the company premises on
February 16, 1948. Bush and Pace denied pointing at Dickson from the window
on this occasion 92
Dickson impressed the undersigned very favorably in her testimony. She
testified in a quiet, direct manner and made no apparent effort to exaggerate the
incidents about which she testified. While a witness with a less scrupulous
regard for the truth might have testified that she heard the people in the window
of Respondent's premises refer to him, as did DeLoach, Dickson in her direct
examination was frank to admit that while they seemed to be yelling something
at her, she could not hear what they were saying. This was characteristic of her
testimony in other respects. DeLoach did not similarly impress the undersigned.
His recollection regarding some aspects of the incidents about which he testified
was obviously hazy. This was perhaps to be expected in view of the fact that a
year had passed since this occurrence, and unlike the employees directly con-
cerned, this was merely another organizing campaign to him. However, instead
of adhering to the facts and indicating his lack of recollection regarding some of
the details about which he was interrogated, he was obviously trying to embellish
his story by filling in blanks in his memory through the medium of his lively
imagination. However, despite this deviation in the testimony of these two
witnesses, upon which Respondent laid considerable stress, their testimony was
in accord regarding the basic facts and the undersigned is convinced and finds
that Dickson did meet DeLoach across from Respondent's premises on Monday,
February 16, during the noon hour. The undersigned is also convinced that
Bert Michael and James were present across the street from where Dickson
was standing and that they were in a position to observe her presence33 In
view of Dickson's frank admission that she could not hear what the people in
the window of Respondent's premises were yelling or even that Bush was actually
31 She was unable to recall whether they appeared before or after one of the employees
had signed the card and given it to Dickson.
32 Pace admitted that she did stand in the window during lunch hours on various occa-
sions but had no recollection of being there on the day in question.
a3 This is not intended to suggest that their presence there was part of any deliberate
campaign of surveillance.
HAPP BROTHERS! COMPANY, INC. 1543
responsible for the yelling, and in view of the number of people present in front
of the windows on that occasion , the undersigned makes no finding as to whether
Bush, kitchens , or Pace were standing in the window or whether they were yell-
ing or pointing at her.
In addition to the house -to-house canvass of Sunday afternoon, February 15,
just referred to, Dickson participated in another such expedition on Monday
evening, February 16, together with Director Livingston and another employee.
It was subsequent to these visits that Bert Michael made the speech previously
discussed in which he referred to the fact that many of the employees com-
plained to him "with reference to the house-to-house campaign of a few. of our
employees."
On Friday , February 20, Dickson was called to Bert Michael 's office and dis-
charged together with Coleman and Yarbrough . The discussion which took
place at the time of the discharge between Bert Michael and these girls will be
hereafter discussed in greater detail.
4. Contentions and conclusions
Opposing contentions were advanced by the General Counsel and Respondent
regarding the reasons for the discharge of Coleman and Dickson . The General
Counsel contended that the failure of these operators to make production was
due to the fact that something was wrong with the line banding system and that
Respondent did not seriously expect the line banders to make production ; that
Respondent had retained in its employ , without discharging them or even threat-
ening to do so, many operators , banding and nonbanding , who had been substan-
tially deficient for extended periods of time ; that Dickson and Coleman were
never warned they would be discharged because of production deficiencies ; and
that the reason they were finally discharged was the active part they played in the
Construction Workers' organizing campaign. Respondent contended, on the other
hand, that it had no knowledge of Dickson's and Coleman's union membership ;
that they, together with Yarbrough, were the most deficient operators in their
classification ; that although Respondent had tolerated deficiencies in the past
it embarked upon a campaign to eliminate them early in 1948; and that these em-
ployees were warned about their deficiencies but showed themselves to be uncon-
cerned . Respondent also cited its past record of amicable union relations to
show the improbability of any antiunion bias in the discharge . These conten-'
tions and the evidence to support them are considered in detail below.
a. Knowledge of Coleman's and Dickson's union membership
The evidence with respect to Dickson , discloses that she openly and actively
participated in the Construction Workers' organizing campaign . In addition, to
signing a union card and attending union meetings, she participated in the house-
to-house canvass to sign up union members. There was no denial by Superin-
tendent James of Dickson 's testimony , which the undersigned credits, that he had
heard from a friend of hers that she was dissatisfied with conditions . Respondent
argues that "nothing but conjecture supports the contention that this fellow em-
ployee had told James that Mrs. Dickson was a member of the union ." In the.
opinion of the undersigned , it is unrealistic to assume that an employee who
would report to the plant superintendent a statement of a fellow employee that
she was dissatisfied with conditions , would not also report to him the genesis of
this remark, namely, that the employees were discussing the subject of signing
1544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union cards and that the statement in question was made in connection with
the employee's remark that she intended to sign the union card which she had
received. The fact that Dickson had not yet joined the Union, a fact to which
Respondent adverts in its brief, does not detract from the significance of Dickson's
testimony. It is obvious that she was not yet a member since the subject of the
conversation was whether she should sign the card. However, this incident at
the very least put Respondent on notice of Dickson's sympathies and intentions in
the union organizing campaign.
Any doubt which Respondent may have had as to whether Dickson actually
joined the Union must have been resolved by Respondent's observation of the
active part which she thereafter played in the union organizing campaign. The
undersigned has already found that Bert Michael and James observed Dickson
engaged in discussion with the union organizer, DeLoach, across the street from
Respondent's plant in the midst of the union organizing campaign. Even if this
evidence were disregarded, as Respondent urges it should be, because of the
discrepacy in the testimony.of Dickson and, DeLoach, the undersigned is satis-
fied that Dickson's active part in the house-to-house campaign was brought to
Respondent's attention. As related above, she visited the homes of 19 em-
ployees on Sunday afternoon, February 15, in the company of Crawford and
DeLoach. She participated in further visits to employees' homes on Monday
evening, February 16 with Livingston. These visits to employees' homes by the
organizing group were reported to Bert Michael, who made a speech to the
employees on Tuesday, February 17, because of the complaints received from
employees regarding the "house-to-house" campaign of a few of our employees."
Michael admitted that Crawford's name was one of those mentioned to him.
Other employees who testified for Respondent referred to the presence of De-
Leach at their homes. It seems unreasonable to suppose that the name of Dickson,
who was an active participant in these visits, was not also reported to Michael.
From the testimony as a whole, the undersigned is convinced and finds that both
Bert Michael and Superintendent James, were aware of Dickson's membership
and interest in the United Construction Workers' Union at the time of her
discharge.
In Coleman's case, the record is clear that Respondent was aware of her
union membership and sympathies. Bert Michael and Bush were admittedly
aware of her activities on behalf of the Amalgamated Clothing Workers, as a
result of the argument which was responsible for her being called to Michael's
office in December 1947.x+ After the abortive efforts of the Amalgamated Cloth-
ing Workers, Coleman became equally active in the Construction Workers. In
addition to attending union meetings, she 'was engaged in signing up union
members in the plant. According to her credited, undenied testimony, her union
missionary activities took place on the floor of Respondent's shop, during part
of which time Bush was present on the floor. Bush, although specifically denying
knowledge of Dickson's or Yarbrough's union membership, did not deny know-
ing Coleman was a union member. In fact she affirmatively admitted knowing
Coleman was a union member. Respondent seeks to limit this admission to
knowledge of Coleman's membership in the Amalgamated Clothing Workers'
Union. In the opinion of the undersigned, this limitation is unwarranted. In
any event, considering Coleman's active participation in the Amalgamated Cloth-
ing Workers' campaign and later in the Construction Workers Union, the under
sa In its brief Respondent stated, "Of course Mrs. Bush and Michael knew in December
that Mrs. Coleman was a member of the Amalgamated Clothing workers. . . .
HAPP BROTHERS COMPANY, INC. 1545
signed is satisfied that at the time of her discharge , Respondent 's officials knew
or had reason to believe on or about February 20, 1948, that Coleman was a
union adherent,
b. The banding difficulties
The General Counsel sought to establish through a number of his witnesses
that the piece rates set for the various operations on the line banding were so
low that Respondent never seriously expected the employees to make production.
Both Coleman and Dickson testified , as already mentioned , that they were either
not told what production was on their operation or did not receive this infor-
mation until some time after they started to work on the line banding. Similar
testimony was given by Bessie Phillips , Eloise Cromer , Inez Brown, Susie
Frazier, Doris Hopkins , and Nellie Simmons who were called as witnesses by
the General Counsel. Several of these also corroborated Dickson's and Cole-
man's testimony that they were not told about the higher rates for work on large
sizes and on certain types of material 85 Some of these witnesses also testified to
the disadvantages under which the line banders operated as compared to the
regular banders , such as the fact that while the regular banders had four or
five bobbins with different colored thread at their machines , the line banders had
only two bobbins and therefore had to change thread more frequently, thus
slowing production ; also that the regular banders had their work brought to
them by bundle boys while the line banders had to get their own work.
Respondent sought to neutralize this testimony by showing that the line
banders were fully informed of their piece rates, including the higher rates for
special work , and also that the higher rate paid for the regular banding was based
on differences in the operations . In some respects this testimony was confused.
Thus, Forelady Bush testified at one point that when the line banders started
working, they were given a full typewritten schedule of piece rates similar to
Respondent's Exhibit 4, but later testified that each operator received only the
rate for her individual operation and not a full schedule . Other witnesses for
Respondent gave the following testimony on this subject : Mary Mullis testified
that she received a schedule of rates similar to Respondent ' s Exhibit 4; Mollie
Holland testified that she didn ' t receive any paper but was merely told by Bush
what the piece rates were ; Instructor Kitchens testified that Bush gave each of
the operators a slip of paper . with the piece rate on it . Mullis and Mary L. Dur-
den claimed that they received extra pay for work on large sizes. 'Mullis ad-
mitted, however , that no one told her about this but that she knew of it herself
since she had previously worked as a regular bander. Seeking to justify. the
fact that the total amount paid for the regular banding is 137/2 cents more than
the combined line banding rates, Bush testified that the line banding does not
require as much changing of the thread and the foot of the machine since the line
bander only works on one segment of the banding operation.
The undersigned finds it unnecessary to determine in detail the merits of these
conflicting claims. There was a certain amount of exaggeration in the claims of
both sides on this issue . However , from the mass of testimony on the subject,
several conclusions may be garnered . It seems clear that the line banding was
started in the end of July on an experimental basis , with a few operators being
hired at first ,. and others gradually added. It also seems clear that there was a
certain amount of. confusion attendant on the inauguration of the new system.
-"Instructor Kitchens admitted that Dickson complained to her about the large-sized
bundles.
1546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Whether due to deliberate design or not, many of the new line banders were not
clearly advised of the piece-rate basis of their earnings until some time after
they started work. Although their earning statement carried the notation "d"
after the amount of the deficiency, many of them did not understand the sig-
nificance of it. Whether they were fully informed of their piece rates or not, the
evidence shows, as will hereafter appear, that there was widespread difficulty in
achieving the production quotas.
A barometer of the difficulties involved in the line banding operation is the fact
that when volunteers were asked for from among the regular banders to join the
operation, most of them refused. Sally Austin, a regular bander, testified cred-
ibly that 2 or 3 months after the line banding went into effect, Bush asked the
regular banders to help out temporarily on the line banding and that those who
volunteered were paid not on the basis of the line banding piece rates but on the
basis of their average earnings on the regular banding in the preceding 5-week
period. Daisy Elrod also testified credibly that when the line banding was
started, Bush asked for volunteers from the regular banders but that none of them
volunteered because the production quotas were too high. Bush admitted asking
the regular banders for volunteers on the line banding. She claimed that three
of them volunteered but didn't remember whether they were paid on the basis
of their regular banding earnings.
The final crucible, of the difficulties experienced in the line banding operation
is the fact that shortly after the strike occurred, the line banding method was
abandoned altogether, after being in operation only about 7 months, because
according to Superintendent James' own admission, it hadn't turned out as well
as he had expected. In this connection, it is significant that several operators who
were consistently unable to make production on line banding made it on other
operations. Hilda Kitchens whose production deficiency was substantially.
greater than that of Dickson and Coleman was transferred to the finishing depart-
ment during the first week of February 1948, and was able to make production
thereafter. Eloise Cromer, whose production deficiency also exceeded Dickson's
and Coleman's, was put on regular banding after the strike and, according to
her credited, undenied testimony, she was able to make production.
In its brief, Respondent argues that the production records of the week of
February 13, 1948, refute the General Counsel's contention that it was impossible
to make the minimum on line banding. Respondent cites the fact that "out of
the 22 line banders on the payroll of February 13, five did not work that week ;
three had been employed less than six weeks ; and eight out of the remaining
14'made more than the minimum . . ." In the opinidn of the undersigned,
it is not proper to exclude from the comparative figures, as Respondent attempts
to do, those banders who were employed for less than 6 weeks, if an accurate
picture of the deficiency situation is to be obtained. While it may be true that
an operator with less than 6 weeks' experience should not be expected to make
production, this overlooks the fact that throughout the period when the line
banding was in effect there was a significant number of deficient banders on the
pay roll each week who only remained in Respondent's employ for brief periods.
The undersigned is convinced that the difficulty in reaching the production quotas
was an important factor in the turnover in banding personnel. If these de-
90 Although the transcript of the payroll for the week ending February 13 contains a
notation of "Out" alongside the names of five line banders , the evidence discloses that four
of these, Gladys Collins, Doris Hopkins, Pansy Schroeder, and Mary Durden, had previously
left Respondent 's employ. All had previously been deficient in production.
HAPP BROTHERS COMPANY, INC . 1547
ficient operators are excluded from the comparative figures each week, the figures
would fail to accurately reflect the difficulties which were being experienced on
the line banding operation. The true significance of the payroll of February
13 is that out of 17 banders who worked that week, 9 failed to make production.
The failure of over 50 percent of the operators to make production, a situation
which existed throughout the time the line banding was in effect, is indicative of
the fact that something was wrong with the system or the piece rates 37
The evidence also discloses that Respondent was aware of the dissatisfaction
existing because of the line banding piece rates. According to the undenied,
credited testimony of Crawford, employee representatives informed Bert Michael
and Superintendent James of the dissatisfaction of the . line banders because
they considered the production quotas to be too high. Instructor Kitchens also
admitted hearing the girls complain about the piece rates.
In order to give a representative picture of the difficulties which were being
experienced in the line banding operation, the undersigned has prepared a. table
reflecting, in summary form, the record from July 25, 1947, to February 20, 1948,
with respect to production deficiencies of banding operators in' Department A,
where all the line banders were employed. The table is attached hereto as
Appendix A. It includes all banding operators, line and regular banders, since
except for the period of a few weeks before the strike, the transcripts of the pro-
duction records which were introduced in evidence do not contain a precise break-
down between the line and regular banders. However, since the evidence estab-
lishes that the line banders were more deficient than the regular banders, it is
clear that the figures set forth in Appendix A represent a minimal picture of
the deficiency among banding operators. Likewise, since as has been previously
indicated, the September 1947 production transcripts are inaccurate to the extent
that they fail to record deficiencies for a number of line banders, it is likely that
the correct figures for the weeks ending September 5, 12, 19, and 26, 1947, would
indicate an even larger proportion of deficient. operators. In any event, even on
the basis of the minimal figures in Appendix A, it appears that except for 4 work-
weeks, over 50 percent of the banders were deficient in production. The best
record was achieved in the workweek of February 13, when only one-third of the
banders failed to achieve their production quotas. However, as mentioned above,
a breakdown of the figures for the week of February 13 between line banders and
regular banders, discloses that among the line banders, over 50 percent were
deficient. The table also discloses that throughout the period in question, the
average size of the deficiency was approximately one-third of the guaranteed
earnings paid to the deficient operators. It seems evident that with such a
record of performance the only conclusion which can be reached is that the
standard of performance established by Respondent on this operation was beyond
the reach of the average employee 38
37 It is significant that of those who made production In the week ending February 13,
Mary Mullis was an experienced operator who had previously worked as a regular bander
and had been employed by the Company since 1940 ; Glennie Adams , Mary Moody, and
Rose Maddox had also been previously employed by the Company as operators before
returning in July 1947 to work as line banders.
38 See "Wage Policy for Management" by Sumner D. Charm, Funk & Wagnall Company,
New York, 1949 , in which the author ( Manager of Personnel Relations at Ayer Mills,
American Woolen Company ), referring to the establishment of proper standards for a wage
incentive plan, states (at p. 118)':
. . . the standard is the measured time in which an average worker, under specified
quality conditions can complete a given job . Set the standard too high, and the plan
can't be honest. -
. 1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. The delicciency record of Coleman and Dickson
Despite the widespread deficiencies among banding operators , Respondent
sought to justify its picking out Coleman and Dickson for discharge on the ground
.that they, together with Yarbrough , "had the .poorest record for productivity of
any of the simplified banders ." In support of this position Respondent submitted
with its brief a schedule of the deficiencies of banding operators from October 3,
1947 , to February 13, 1948 .'9 According to Respondent these figures disclose that
outside of Mary Durden who quit on January 19 , 1948, Yarbrough , Coleman, and
Dickson had the poorest production records. Respondent 's conclusions are ap-
parently based on the total dollar deficiencies for the period covered. However,
these figures are misleading since no allowance is made for differences in the
length of employment or in the number of hours worked by the employees. For
example, a total dollar deficiency during this period of $210.92 for Coleman cannot
be compared with a total deficiency for Eloise Cromer of $145 . 54 since the latter
did not start to work until November 11, 1947, and her deficiency record covers
a period which is shorter , by 6 weeks , than the period upon which Coleman's
total deficiency is computed . Likewise , the fact that Cromer's total deficiency
during the period is $8 less than Dickson's does not necessarily establish that the
latter was more deficient even though they both started to work at the same time.
The record discloses that the lower total deficiency for Cromer is due to the fact
that she was absent from work for 1 week and in a number of weeks she failed to
work the full schedule of hours. Certainly an operator with a more frequent
absentee record should not be considered a better operator because thereby her
deficiency was lower than it would have been if she had worked a fuller schedule-
It may also be noted that Respondent has excluded from its comparative figures
the case of Hilda Kitchens ,"° who from October 3, 1.947, to January 30, 1948 (when
she was transferred to another department ), had a total deficiency of $228.72
which exceeded both Dickson 's and Coleman 's total and was only $ .25 less than
Yarbrough 's total deficiency for a 2 -week longer period.
In the opinion of the undersigned a more accurate gauge for comparing the
record of deficient operators is the rate of the deficiency rather than the dollar
totals. In order to afford a basis for comparison of deficient operators, the
undersigned has prepared a chart of the most deficient operators , which is
attached hereto as Appendix B. The chart covers the same period as that used
by Respondent but the deficiencies are expressed on a percentage basis, i. e., the
ratio of the dollar deficiency to the amounf actually paid to the employees under
the guaranteed minimum pay arrangement .." In addition to line banders, the
chart also includes regular banders , and other categories of operators since in
the opinion of the undersigned the retention by Respondent of operators in any
category with high deficiencies at a time when it was discharging others is a
fact to be taken into consideration in determining Respondent 's motives.
11 The schedule does not include figures earlier than October 3 because of Respondent's
contention that the September figures are inaccurate . - It concludes with the February. 13
figures because, according to Respondent's version, this was the last payroll available when
the discharges took place on February 20.
41 Not to be confused with Instructor Marie Kitchens.
41 If Employee A worked 40 hours , was paid $20 ( 40 x $.50 ) and had a deficiency of $8.00,
his relative deficiency would be lower than Employee B who worked only 20 hours, was paid
$10 (20 x $.50) and had a deficiency of $5. Under the formula used by the undersigned
the deficiency of A would be 40 percent ($8=20) and the deficiency of B would he 50
percent ($5=10).
HAPP BROTHERS, COMPANY, IN C. 1549
From the attached chart it is evident that there were several other operators
whose deficiency average exceeded both Dickson's and Coleman's, and there were
a number of others who considering the length of their employment, as compared
with Dickson and Coleman, had very substantial deficiencies. Susie Frazier with
an average deficiency of 76.5 percent and Eloise Cromer with 61 percent exceeded
the deficiencies of Dickson and Coleman, and even that of Yarbrough.9' The
deficiency record of Hilda Kitchens was also worse than the three discharged
girls. While it is true that she was no longer working as a line bander on
February 20, it is significant that she was given a transfer by Respondent around
.February 1 to an operation on which she was able to make production. Inez
'Brown is another line bander with a substantial deficiency record who was not
discharged. While her deficiency average ,was somewhat better than Dickson's
and Coleman's this is due partly to her marked improvement in the week of
February 20 but, according to Respondent's claim, the figures for that week were
not before it at the time of the discharges.
Of particular significance are the production records of Addie Marchant, Edna
Gray, Myrtle Babcock, and Margaret Ames. While Babcock's deficiency average
of 46.6 percent, Gray's average of 40.9 percent, Ames' average of 35.9 percent,
and Marchant's average of 34.7 percent are somewhat lower than Dickson's and
Coleman's, it should be noted that their periods of employment are substantially
greater. Gray and Marchant were regular banders employed. since January 28,
1946, and February 6, 1946, respectively. The record does not disclose what
Gray's performance was prior to the week ending July 25, 1947. However, from
that week until February 20, 1948, Gray never made production except in 3
weeks. The record of Marchant, who was also a regular bander, discloses a
similar situation 43 Babcock, a pocket operator employed since November 5,
1946, had an equally bad record. During the period from January 1, 1947, to
February 20, 1948, for which her production record is available, she had a pro-
duction deficiency in every single week 44 The production record of Ames, em-
ployed as a pocket operator since March 1947, discloses that she failed to earn
her guaranteed minimum in a single week from March 21, 1947, to February 20,
1948.
The production records do not establish, as claimed by Respondent, that Dick-
son and Coleman had the worst production records. In terms of absolute deft-
^' Respondent argues that Cromer was improving at a faster rate than Dickson and
Coleman , calling attention to the fact that in the week of February 13 her deficiency was
slightly lower than Dickson 's and Coleman 's, and that in the following week it declined
still further. Since , according to Respondent ' s version the last payroll it had before it
at the time of the discharge was February 13, there was little to choose from on the basis
of the over- all record of these operators at that time . Considering Cromer ' s poor attend-
ance record the conclusion that she was a better operator hardly seems justified. Even
if the pay roll of February 20 is taken into account it will be noted that while Cromer's
deficiency declined to 27 . 7 percent , Coleman 's declined to 26 . 6 percent . Since Coleman
had been transferred to a new part of the banding operation only a few weeks before, her
improvement in this brief period is significant . The record of Dickson who had a change
of machine beginning the first week in February shows a steady improvement thereafter.
+a By coincidence, the 3 weeks in which these two employees made production are the same,
namely , A ugust 15 , 22, and 29, 1947 . In view of the fact that they never previously made
production and never thereafter made it, it is possible that these records , as in the case of
the September records, are in error.
+'a Respondent contends that since Babcock was a pocket operator and the discharged girls
were line banders no comparison can be made between them . The undersigned is not im-
pressed with this argument . The failure of operators to make production on an established
operation like pocket operating ( as distingu ished - from an experimental system l ike the line
banding ) and their retention by Respondent despite sustained deficiencies is a fact the
significance of which cannot be disregarded.
1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ciency several employees had worse records. In terms of relative length of
service, a number of employees had records which were not materially better
than theirs . The undersigned recognizes , of course , that it was the prerogative
of management to determine which of the deficient operators it should discharge
in the light of their entire employment history. Respondent 's discharge of
Dickson and Coleman would not necessarily be discriminatory because other
operators with greater deficiencies were not discharged or because other
operators with substantial deficiencies were retained after as much as 2 years
of service . However, these facts may properly be considered in the light of the
entire record in determining the motive for Coleman 's and Dickson 's discharge,
particularly since Respondent asserts as a ground for justifying their discharge
the fact that they ( with Yarbrough) had the worst production records.
d. The alleged assistance given to Dickson and Coleman , and their lack of
cooperation
In addition to its claim that Dickson and Coleman were the worst operators
in terms of production , Respondent also sought to justify its choosing them for
discharge from among the other deficient operators on the ground that they
were given more assistance and instruction by their forelady and instructor than
any of the other operators but that . they demonstrated very poor cooperation.
The extensive testimony on this subject is analyzed below at some greater length
than it merits not merely to demonstrate the absurdity of such claims but to
give insight into the quality of the testimony adduced in support of Respondent's
case.
Instructor Marie Kitchens testified on direct examination that in the first few
weeks of Coleman 's employment she spent as much as 3 hours a day helping
her with her work. On cross-examination , Kitchens admitted that for the first
3 weeks after Coleman started to work, she ( Kitchens) was not even working
as an instructor but was an operator doing regular banding. She then testified
that she spent between 3 and 4 hours a day with Coleman during September and
October and all during the time that she was employed as an instructor. This
was later modified to an average of 2 hours a day, except that during the last
few weeks before Coleman 's discharge , she helped her as much as 3 hours a day.
At one point in her testimony , Kitchens claimed that at times she did as much as
one-third of Coleman ' s work for her. When asked whether she did that for
other operators , Kitchens replied, "Yes , at different times ," but added that she
did it more often for Coleman than the others . When the General Counsel asked
her, "very much more often ," Kitchens replied , "not too much ." At first Kitchens
testified that Coleman's work was of poor quality but later admitted that Cole-
man's work was no worse than the average line bander.
Kitchens testified concerning Dickson, that she spent "hours and hours at a
time at her machine" and that while she was helping Dickson, the latter instead
of watching , would get up and talk to other girls. When asked on cross-examina-
tion whether she would ask Dickson to come back to her machine and pay atten-
tion to the instructions , Kitchens replied in the negative . Kitchens estimated
that she spent as much as an hour at a time at Dickson's machine helping her
and that during the first few weeks of her employment , she spent about an hour
and a half a day with her. Although she had previously testified that she spent
more time doing Coleman 's work than anyone else 's, she testified in connection
with her assistance to Dickson that she spent more time with Dickson than any-
one. else in the factory . Kitchens claimed that she would complete whole
HAPP BROTHERS COMPANY, INC. 1551
bundles for Dickson and that during the week ending February 13, over one-
third of the amount earned by Dickson was earned for her by Kitchens' work.
On cross-examination, Kitchens in an expansive mood extended the one-third
figure to include Dickson's work right along. Although she was not positive
whether this took place every week, she thought it took place in most weeks.
When Kitchens' attention was directed to the fact that Eloise Cromer, who was
hired at the same time as Dickson, was equally deficient, Kitchens testified that
it wasn't necessary to spend as much time with her. However, she testified
that she also spent one-third of the time with Cromer on different occasion S.45
According to Kitchens, she reported to Bush the fact that Dickson's and Cole-
man's production was bad. She was unable to recall, however, when she talked
to Bush about them and admitted that she didn't talk to her about them any
more than about any of the other girls. She also admitted talking to Bush about
Cromer's work but added that she told Bush that Cromer "would stay with her
machine all the time and tried her best to get it up and finally she made it." As
indicated previously, the production records show that Cromer's production
was no better than Dickson's and Coleman's and that in fact she never "made it"
on the line banding.
Bush's testimony on this subject, while not as absurd as Kitchens', was also
lacking in conviction. Bush testified that she helped Coleman 3 and 4 hours
a day during the training period and that a few weeks before her discharge
(when Coleman was transferred to another part of the banding operation)
she also worked with her that long. After further questioning on cross-
examination, Bush admitted that she helped all the girls and didn't help
Coleman any more than the others. When asked whether Coleman had any
defective work come back to her to be redone, Bush testified that Coleman
didn't have any bad work come back because it was inspected before it left
her machine and, that they kept inspecting her work right to the end. Sub-
sequently, she admitted that the work of all the line banders was inspected
and that the procedure in Coleman's case was no different from that of the
other line banders. She also admitted that' Coleman's work was no more
defective than any of the other banders.
Bush claimed that she talked to Coleman regularly about increasing her pro-
duction. She admitted, however, that she spoke to all the girls about production
and didn't treat Coleman any different than the rest. She also admitted that
she never warned Coleman she would recommend her for discharge if she
didn't increase her production. Bush's only testimony regarding Dickson was
that she helped her as much as Coleman.
. Considering the fact that there were about 135 operators in Department A,
including about 50 banding operators, and the fact that there were a substantial
46 On redirect examination , in answer to a leading question by Respondent 's counsel,
Kitchens testified that in her previous testimony she meant "Coleman" and not "Cromer."
However, it is apparent from the context of her previous testimony that Kitchens was not
mistaken and was in fact referring to Cromer. Her testimony regarding Cromer was given
in response to a question interjected by the undersigned during a course of questioning by
the General Counsel specifically directed to Cromer. This testimony was as follows :
Trial Examiner LEWIS. Do you think you spent about one-third of your time with
Mrs. Cromer, one-third of the time that you were working helping her?
The WITNESS, On an average-you know, different days.
Trial Examiner LEWIS. Did you help her a good part of the time she was there?
The WITNESS. Yes.
Trial Examiner LEWIS . I am talking about Mrs . Cromer now . [ Emphasis supplied.]
The WITNESS . Yes, I helped her, too.
1552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
number of deficient operators each week, the testimony of Kitchens and Bush
that they spent hours with Coleman and Dickson alone and did as much as one-
third of their work taxes credulity to the utmost. The undersigned does not
doubt that both of these employees received reasonable assistance from Kitchens
and Bush, but is convinced that it did not substantially exceed that given to
the other deficient operators.
A more realistic appraisal of the assistance given to Coleman and Dickson
appears in their testimony. Coleman testified credibly that on the first day
she was hired Bush sat clown at the machine of Pansy Schroeder and showed
the two of them how to perform their operation. On another occasion, Super-
intendent James sat at Schroeder's machine and showed Schroeder and Coleman
how to hold the band when sewing, after Coleman had asked for his assistance
as he was walking by. Outside of this, the only time she received any assistance
from Bush or Kitchens was when she was given a new style to work on or
when she was transferred to another operation. The latter occurred during
January at which time Bush helped her for a while. Coleman also testified that
Bush complimented her several times on the neatness of .her work. This was
corroborated by Holland, one of Respondent's witnesses. Bush at first denied
complimenting Coleman but later testified that she probably did. Kitchens also
admitted complimenting Coleman on her work. Dickson testified credibly that
after the first day, Bush rarely helped her and that while Kitchens would collie
over occasionally and help her, this would never be more than 1.5 minutes at
a time. Both Coleman and Dickson testified credibly that they were never
spoken to by Bush and Kitchens about their production, and never threatened
with discharge on that account 40
Respondent also endeavored to show that part of Coleman's difficulty was
that she talked a great deal and didn't want to make production. One of the
witnesses who testified that Coleman talked "quite a bit" Addis Hall, admitted
that her observation of Coleman was based on the experience of a single week
in August which was the only time she worked near Coleman. Another witness,
Pearl Grant, claimed that Coleman talked "a good bit" and that she heard
Coleman say "it didn't matter whether she worked hard or not, she was going to
get $4.00 a day anyway." However, she admitted working near Coleman only
during the period after Coleman's transfer. Since the production records dis-
close that Coleman was transferred near Grant at the end of January 1948, it
is apparent that the latter's observations were based on a period of only about 3
weeks. It may be noted that Grant also admitted talking a lot herself.. Mollie
Holland, another employee who was called by Respondent as a witness, also testi-
fied that^Coleman talked "a lot" and that she heard Coleman say "there wasn't
no need of working hard ; that we were only going to make fifty cents an hour
anyway." Holland admitted that her observations were based on a period of 1
month in September 1947 when she worked near Coleman. She also admitted
that although Coleman talked a lot, "she worked pretty steadily" ; also that
all the employees talked. Another employee, Lois Warrick, also testified that
Coleman did "an awful lot of talking" and that Coleman told her there was no
need to work hard, since she was only going to get $4 a day anyway. Since War-
rick only sat next to Coleman for about 3 weeks before her discharge, her obser-
vations were evidently based on this period, as she herself admitted. At one
point she claimed that Coleman made this remark to her two or three times;
j
i0 As already indicated, Bush admitted she never told Coleman that she would be dis-
charged if she didn 't increase her production.
HAPP BROTHERS COMPANY, INC. 1553
later she testified that Coleman made it to her only once , at lunch time . The un-
dersigned was not impressed with the testimony of these witnesses and credits
Coleman 's denial that she made any such remark . While Coleman was by no
means a model of perfection, the undersigned is satisfied that if she talked while
working her engagement in this activity did not exceed that of most of the other
employees and did not substantially affect her work.
Respondent also sought to show that Dickson talked a lot . This testimony was
also unreliable and unconvincing . Addis Hall testified that while she was
working near Dickson in August 1947 she heard her talking a lot. When it was
brought out that Dickson did not start working until November 1947, Hall modi-
fied her testimony and stated that she heard Dickson some time after August.
Although she still insisted Dickson talked a lot, she admitted she herself talked
and that she never heard any company rule against talking. Pearl Grant also
claimed that Dickson talked . a lot. The production records disclose that Dick-
son only worked near Grant for about 3 weeks in February , prior to Dickson's
discharge . The undersigned is satisfied that any talking in which Dickson
engaged is of no material consequence as far as the issues in the case are
concerned.
e. The alleged drive to eliminate deficiencies
A key part of Respondent's case was its contention that the decision to dis-
charge Dickson and Coleman was the culmination of a drive undertaken by
management to eliminate deficiencies. Apparently aware that the discharge of
these operators might be difficult to explain in the light of its past record of
retaining many operators who had been deficient for extended periods of time,
Respondent sought to show that the era of leniency and toleration came to
an end with the announcement of a 10 percent increase in piece rates by Morris
Michael, Jr., in his November 1947 speech.
The undersigned finds nothing in the speech itself which would indicate to
the employees that the Company intended to institute a "tougher" policy with
respect to Nficiencies. The speech was not directed at the deficiencies of em-
ployees but was an apparent effort to reassure employees that their position
would not be adversely affected by the termination of relations with the Union.
As an incident to Respondent's assurance that conditions would remain the
same as when the employees had a union contract, Michael announced "one
exception," a 10 percent raise in piece rates. Respondent argues that with the
10 percent increase announced in the speech the Company had a right to expect
deficiencies to be eliminated, and calls attention to the fact that Michael told
the employees that with the increase "every operator who made the minimum
of 40 cents per hour in 1942 should, 'if she maintains the same production, earn
82 cents or more. So there is no excuse for any employee not making at least
the 50-cent minimum." However, according to his own admission, the 82 cents
an hour figure which Michael mentioned was extremely optimistic in relation to
the capacity of the average operator. Michael testified that the piece rates for
most jobs were established back in 1941 or 1942, based on time studies which
would yield the average operator at least the 40 cent hourly minimum required
under the Wage-Hour Law. The 82 cent figure mentioned in Michael's speech
was based on the fact that the increases in piece rates since 1942 totaled ap-
proximately 110 percent. However, he admitted that there was a definite decline
in the productivity of employees during the period of the war and that prior to
903847-51-vol. 90-99
1554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the 10 percent increase in December 1947 the average operator was not earning
75 cents an hour as might be expected if productivity had remained constant.
It seems evident therefore that while Michael hoped for a decline in deficiencies,
he had no reasonable expectation that they would be eliminated. According to
Crawford's credited testimony, Michael's expressed hope that deficiencies would
be eliminated was nothing new, since he usually spoke about this subject when
an increase in piece rates had been granted in the past. Although the hope was
expressed that deficiencies would be eliminated, there is no mention in the speech
of any drive to eliminate them or any suggestion that employees who continued
to be deficient would be discharged. On the contrary the tone of the speech
was one of assurance to employees.
However, aside from the question of whether the employees were put on
notice by the speech itself, Respondent sought to show that it did in fact insti-
tute a stricter policy with respect to deficiencies after this speech and that a
number of the girls, including Dickson and Coleman, were thereafter called to
the office and given to understand that their deficiencies would have to be
eliminated or they would be discharged. Since, in the opinion of the under-
signed, the testimony on this subject is of paramount importance in determining
Respondent's good faith in choosing Dickson and Coleman for discharge and
retaining other deficient operators, it is analyzed somewhat in detail below.
According to the testimony of Morris Michael, Jr., he spoke to his brother,
Bert, and to Superintendent James around December 1, 1947, and told them that
the Company just couldn't keep on with the deficiencies and that steps would
have to be taken to eliminate them. He testified that he told Bert and James,
I will give you some time to get the procedure going. Christmas holidays
are coming up, so we won't do anything about it until after that, but after
that I am going to give you a few weeks, and then we are going to start
clamping down.
Michael explained that the reason nothing was going to be doi about the
situation before Christmas was "because the Chistmas spirit was in every-
thing and we don't judge much by that month." According to Michael, he be-
gan studying the payroll after January 1, 1948, and prepared a list of de-
ficient operators by machine number. He testified that he gave his brother a list
of 12 or 14 people, mostly from Department A, and told him that he wanted "a
report on every one of these girls." The list allegedly included people who
had been working at least 7 or 8 weeks and who had "deficiencies of $6 or more,
unless the deficiency was unusual for a particular week." Michael testified
that he gave his brother such a list each week during January and February
and that-
usually he'd come back the next morning and tell me he had
talked to Mr. James, the foreladies, and sometimes with the girls themselves,
and he would bring me back a report on each-what she said, or what was
wrong with her or why. Sometimes they went over it just with the fore-
lady, but I think most of the time they'd call the girl to talk to her.
Michael testified that by February 20 the list had dwindled to six or nine
operators.' According to him, the lists for the few weeks preceding, included
4'7 The list prepared for February 20 was.taken from the February 13 payroll, according
to Michael, since the employees were paid on Friday for the preceding week's work, and
the February 20 figures were not yet completed.
HAPP BROTHERS COMPANY, INC. 1555
about seven or eight operators from Department A, one from Department B, and
two in Department C. He called his brother in and, according to Michael,
told him-
I had given him six weeks now and the deficiencies were much
too high and I wanted him to go up and talk to the [worst] girls very em-
phatically and I wanted him to either start showing me an improvement,
or something done about it.
Michael testified that following this conversation with his brother, the latter
reported to him the next morning, February 21, that he had to let three of the
girls go.
While the testimony of Morris Michael, Jr., appeared to be perfectly plausible
on its face, his testimony regarding the allegod deficiency drive was not borne
out by the testimony of Bert Michael and Superintendent James which was
replete with inconsistencies, contradictions, and confusion. Bert Michael, al-
though lie at first corroborated his brother's testimony that he received the first
list of deficient operators in January 1948, testified on cross-examination that
he received the first list "around the end of December," and at another point
that he received it "toward the middle of December." Bert Michael testified
that lie took the list to James and,
told him that Morris wanted me to see about why these girls were
deficient, and we discussed it and then called the foreladies separately from
each department down and discussed it with them, and occasionally we
would call the girls down.
Superintendent James testified that he received the first list of deficient opera-
tors about a week before Christmas. Despite Morris Michael, Jr.'s, testimony
that lie told James and his brother that nothing should be done about the de-
ficiencies until after Christmas "because the Christmas spirit was in everything
and we don't judge much by that mouth," anti despite Michael's testimony that
he didn't even begin studying the payrolls until after January, James insisted
that he not only received a list of deficient operators before Christmas but that
he had a group of then brought down to his office." Forelady Bush and Instruc-
tor Kitchens also claimed that they sent a group of deficient operators to the
office before Christmas, and Bush oil cross-examination fixed the date as being
in November. According to James, the deficient operators were brought to the
office for a talking to on three occasions ; once before Christmas, again around
the second week in January, and finally in February when the three girls were
discharged. Bert Michael's testimony was to the effect that the deficient opera-
tors were only brought down twice, once around the end of January,"9 and again
in February.
The testimony regarding the discussions allegedly had with , the deficient
operators on these various occasions was rather vague and confused. According
to James, the operators to whom he spoke at the first interview around the
middle of December included Coleman, Pansy Schroeder, Lucille Brewer, and
Hilda Kitchens. All James recalled about this occasion was that "some coua-
plained about the machines and others didn't say very much." It was Bush's
48 James admitted that the first time lie became concerned about deficiencies was when
Morris Michael, Jr„ called them to his attention in December and that the list he received
was the one Bert Michael had gotten from his brother.
49 On cross -examination he fixed the date as " around the middle of January."
1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony that on this occasion she brought Coleman, Yarbrough, Dickson,50
Marchant, Babcock, and Gray to James' office; that they gave the excuse about
having trouble with their machines and shaded material and said they would
try to do better. During the second week in January, when according to James,
lie and Bert Michael again interviewed some of the deficient operators, James
was able to recall only Dickson, Coleman, and Yarbrough as being present,
although he believed there were about five or six girls present at the time.
Again something was said about a machine being defective, this time by Dickson.
Coleman and Yarbrough didn't give any explanation for their deficiencies.
The testimony of Bert Michael regarding the meeting in January which, accord-
ing to him,. was the first meeting with the deficient operators after he received
the list from his brother, was equally vague as to what operators were present
and what was said. According to Bert Michael, there were seven or eight people
on the list from Department A and several from the other departments. However,
he only sent for the operators from Department A. On direct examination, the
only ones he recalled as being present were Dickson, Coleman, Yarbrough,
Brewer, and possibly Durclen. On cross-examination he added the name of
Marchant and thought that possibly Gray and Babcock were there. He did not
recall whether Cromer, Crumbley, or Frazier 51 were present. All he recalled
about this occasion was that after the girls were told they would have to do
better "or else we would have to do something about it," Dickson complained
about her machine.
The next occasion when, according to both Bert Michael and James, any of
the deficient operators were sent for was February 20. On this occasion only
Coleman, Dickson, and Yarbrough were called to the office and later discharged.
The testimony of Respondent's witnesses regarding this incident and particularly
with reference to why only Dickson, Coleman, and Yarbrough were called to
the office was more disingenuous and confused than anything that preceded it.
Bert Michael testified that he received a list of names from his brother on
February 20, 1948, which included the names of Dickson, Coleman, Yarbrough,
Brown, Cromer, and Babcock from Department A, and one employee from De-
partment C whose name he did not recall. On cross-examination he added the
name of Brewer to the list of those from Department A and recalled that the
names of Georgia Revel and Minnie Wheeler from Department C were on the
list. According to Bert Michael he called Bush to James' office and asked her,
. .. to explain to me what the trouble was of each of these girls and as
a result [Bush] said that the worst ones on there were Mrs. Coleman, -Mrs.
Dickson, and Mrs., Yarbrough. So I asked her to bring them down later that
afternoon.
The only conversation -Michael could recall having with Bush about the other
girls on- the list was that,
. . . she thought they were trying ; they were doing much better ; they
were not having to be instructed as much ; and they were doing good work ;
and she'd like to give them another chance.
All he could recall about any specific employee was that Babcock "was doing
excellent work. She was a little slow ; and she would like to talk to her agate ;
50 At this time , Dickson had only been employed for about a month . According to Morris
Michael, Jr ., the first list only included girls who had been there 7 or 8 weeks . Superin-
tendent James testified that he gave a girl about 21/z months before lie expected her to
produce.
61 It will be noted that the deficiencies of these three operators exceeded both Coleman's
and Dickson's.
HAPP BROTHERS COMPANY, INC. 1557
warn her again about coming up before she was called down. She thought she
had possibilities of making the minimum." 52 On cross-examination, Belt Michael
admitted that he knew Babcock had been there longer than Dickson, Coleman,
and Yarbrough and had been deficient "a lot." Despite the sustained deficiency
of other operators, some of whom had been employed substantially longer than
the three in question, Bert Michael testified that he only sent for Coleman,
Dickson, and Yarbrough because "it was in my mind a good excuse. as to why
the others shouldn't be called down, especially when she said those three were
the worst." According to Michael's testimony, when he sent for these three
girls he had no intention of discharging them but told Bush. he "just wanted
to talk to them." On cross-examination he claimed that Bush told him these
three girls were "hopeless," but nevertheless he insisted he merely wanted to
talk to them. Since it was not his intention to discharge them but merely to
talk to them, it seems strange that he did not also want to talk to the other
deficient operators, some of whom he allegedly saw in January but who were
still deficient and some of whom he had never spoken to personally about their
deficiencies.5S , -
Bush's testimony regarding her conversation with Bert Michael, which resulted
in the three girls being brought to his office, borders on the fantastic. At first,
she testified that on the morning of February 20, Bert Michael told her he
wanted to talk to the employees who had the worst deficiencies in her depart-
ment and that he asked-her to bring down three girls to whom he wanted to
talk. Although 'Respondent's counsel attempted by leading questions to suggest
that Michael had a list of more than three names, the witness at this point
testified that no other production records were discussed since Dickson, Cole-
man, and Yarbrough were the worst. Bush subsequently asked to be excused
from testifying further-because she didn't feel well enough to continue her testi-
mony. When she resumed the stand several days later, Bush testified that on
the morning of February 20, Bert Michael talked to her about the deficiencies of
five or six operators in her department, including Yarbrough, Coleman, Dickson.
Babcock, Brown, and Brewer. Bush further testified that;
he picked these numbers out and he asked me if-to tell him about them
and I told them I had to help them an awful lot and tried to teach them to
do the work correctly and also to make the minimum and I felt I had done
all I could.
Bush was then asked by Respondent's counsel, "With respect to-whom did you
apply that?" and she answered, "To Coleman, Dickson and Yarbrough." Ac-
cording to Bush, Michael then told her he wanted to have a talk with some of
the girls and see.if he could get them to do better. When she was then. asked
by Respondent's counsel whom Michael told her to bring down, Bush replied "I
,am so confused" and then stated that he told her to bring down all the employees
on the list, Babcock, Brewer, Brown, Dickson, and Coleman. Whereupon, coun-
sel asked her. whether, "As a matter of fact, did you or not, take all of them
down or did you take just some-part of them-down there," to which suggestive
question Bush replied that she just took "part of them down there." " Men
52 Whether Babcock had any "possibilities of making the minimum " may be judged in the
light of the fact that despite her employment since November 1946 , her production record
for 1947 and 1948 fails to disclose that she made it in a single week.
63 Although Babcock , Georgia Revel , and Lillie Snell from Department C were allegedly
on his'list of deficient operators , lie admitted that the only operators he had ever called to
the office were from, Department A. Also , as previously noted, Michael had no recollection
of Cromer or Frazier being present at the previous interview , although their production
records were worse than Dickson ' s and Coleman's.
1558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked why she didn't bring them all, she replied, "Well, he asked me to bring
down the ones that he especially wanted to talk with," and claimed that after
talking with her, Michael told her to bring only Coleman, Dickson, and Yar-
brough. According to Bush, she told him that the others were improving and
doing their work very nicely without help and that they were "earning the
minimum, you know-earning their production each day and were gaining in
speed." M In answer to a leading question of counsel, Bush testified that she
told Michael that the three girls in question were being helped by Kitchens who
was doing part of their work for them.
On cross-examination, Bush at first testified that Bert Michael showed her a
list of five operators and that after discussing them he asked her to bring down
only three. 'Subsequently, she testified that Michael told her to bring down
five or six operators and then stated, "Maybe less. I wouldn't say for sure."
Still later she testified that she brought down Yarbrough, Dickson, Coleman,
Brown, and Cromer, and that Michael let Brown and Cromer go back to work
after discharging Yarbrough, Dickson, and Coleman. On redirect examination
she was asked by Respondent's counsel, "what three-what persons," she took
to Michael's office and replied, "Mrs. Cromer and Mrs. Dickson and Mrs. Brown
and Mrs. Coleman and Miss Yarbrough." She was then asked if she wanted
"to correct,any testimony that you have given with respect to the people who
actually went down to Mr. Michael's office," and she replied that only Coleman,
Yarbrough, and Dickson went to Michael's office with her.
The testimony of Respondent's witnesses as to what occurred in Michael's
office when Dickson, Coleman, and Yarbrough were brought down on February
20 was stereotype, lacking in detail and unconvincing. Michael testified that
the three girls were brought to his office about 4: 15 in the afternoon by Bush.
He and Bush were the only management'officials present when the discussion
started, since James bad gone out of town in the morning. However, James
returned while the conversation was in progress and was present thereafter.
According to Bert Michael, he told the girls That their production hadn't im-
proved, ,that their deficiencies were still high, and that something would have
to be done about it. He testified that Coleman' was the first to talk and said
,,she was doing the best she could" and that he told her, "Well, if that's the
attitude, we can't keep on like that;" that Dickson spoke up and said "If that's
the way you' all feel about it, it's all right with me;" that Yarbrough said
nothing; and that after Coleman's and Dickson's remarks lie told Bush to take
them to the office and get them their pay checks.
James' account of the incident closely paralleled Bert Michael's. It may
be noted, however, that despite his and Michael's testimony that he had been
out of town that morning and did not return until after the conversation started,
his account of the incident purported to cover the entire conversation as if he
were present from the beginning. He testified that Bert Michael referred to
the deficiencies of these girls and wanted to know why they were continuing;
that Coleman spoke up and said she was doing the best she could; that Dickson
"didn't have much to say" (although he thought she said something about doing
the best she could) ; that Yarbrough didn't say anything; that Michael said,
"Well,. since that's the best we can do . . . girls, I'm sorry we won't be able to
.keep you" ; and that one of the girls (he thought Coleman) said, "Are you sure
that's all," and Michael replied, "Yes." Despite the fact that he was not present
64 It is evident that the other operators on the list were not "earning their production
each day" since their presence on the alleged list was due to their continued deficiency.
HAPP BROTHERS COMPANY, INC. 1559
when Michael discussed the deficiencies with Bush that morning, James pur-
ported to know that Michael did not intend to fire the girls when he sent for
them but only wanted to talk to them and that there was another girl who was
supposed to be sent to the office but who was absent that day.
Bush's testimony regarding the incident was cut out of the same stereotype
pattern as Michael's and James', with slight variations. She testified that she
took the girls to the office about 4: 30 in the afternoon and that Michael and
James were there ; 66 that Bert Michael asked the girls why they were not mak-
ing more production ; that they said "if he wasn't satisfied that they were doing all
they could ;" and that Michael told them he couldn't keep them any longer and
they were laid off. As mentioned previously, Bush testified on her cross- exami-
nation that she also brought Brown and Cromer as well as the three girls to the
office, and that Michael let Brown and Cromer go back to work after discharging
the three girls.
The testimony of Coleman and Dickson belies the assertions of Respondent re-
garding the campaign to eliminate deficiencies and the prior warnings given to
the deficient operators. On the contrary, it establishes that their discharges
were handled in a precipitate and summary fashion. According to Coleman,
until the day of the discharge, February 20, she was never called to the office
about her production or given any warning that unless her production improved
she would be discharged. She testified credibly that the only time she was ever
called to the office was the occasion in December, previously related, when she
bad gotten into an argument with some of the girls at her table arising out of
her union activities.' Dickson frankly admitted in her direct testimony having
been called to James' office about her production on the morning of January 29,
1948. However, this was not in the company of any group of deficient operators
as claimed by James and Michael, but grew out of Dickson's remark, about not
being satisfied, in a telephone conversation with a fellow employee the pre-
vious evening when the matter of signing a union card was discussed. Although
the subject of her production came up at the meeting with James and Bert
Michael, there was nothing said about discharging her if she didn't improve."
She was then transferred to another machine . Only 3 short weeks later and,
according to Respondent's witnesses, on the basis of her production in the
succeeding 2 weeks, she was called to the office and discharged.
The testimony of Bert Michael and James was to the effect that despite
Dickson's and Coleman's bad production records they merely wanted to talk to
them but that their indifferent, uncooperative attitude (luring the interview was
what actually resulted in their discharge. Dickson's and Coleman's testimony,
however, gives a somewhat different complexion to this incident. According to
their testimony, which was substantially in accord, each of them was told to
report to the office by Instructor Kitchens. When they got there they found
Jane Yarbrough already there and James and Bert Michael were both present.
Bush came in right behind them with their time cards in her hand. According
Both James and Bert Michael , it will be recalled , testified that James did not join the
conference until after it had started.
fie The undersigned is convinced that it was on the basis of this visit to the office that
James and Bush fabricated their testimony about Coleman being called to the office in
December about her production.
14 On direct examination , James claimed that he told Dickson that if her production did
.not improve after she was changed to another machine she would be discharged. On cross-
examination , however , he testified that he didn 't tell her she would be discharged but merely
told her to try to increase her production.
1560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Dickson, Bert Michael looked up at them and said their deficiencies were too
high and that he would have to let them go ; that even during the ww;ar deficiencies
were only 3 percent and that "we'd just have to call it quits." At this point,
Coleman spoke up and asked Michael whether there was another girl on the
line banding who could make production. Michael replied that he didn't know
and turned to Bush'to ask her whether they did have any line handlers who
were making production. Bush replied that one of the new girls had been able
to make 80 pair of pants the second day she was there. Although the name of
the new girl was not mentioned, Dickson, according to her testimony, knew they
were referring to Jurelle Turk with whom she had been eating lunch, and replied
that she knew the lady.to whom Bush was referring but that lady was an ex-
perienced operator, having previously worked 12 or 14 years in a pants factory
in Winder, Georgia. To this Bush replied that it was the first time the lady
had worked for them. Dickson told Michael that after she had been moved to
a different machine a few weeks previously, she thought she had increased her
production and was making "more pairs of pants per day." Michael said she
had not and finally told Bush to take them to the front office and get them their
,checks.
Coleman's version of the incident did not differ materially from Dickson's,
except that she admitted on cross-examination that after Dickson had made the
-observation about Jurelle '.Turk having previously worked in a pants factory,
,she herself told him that "if that's the way you feel about it, I can't help it."
'During her rebuttal testimony, she stated that she didn't recall making any
such statement.
Although as previously mentioned, Bush's testimony in the main followed the
pattern of Bert Michael's and James', namely, that the girls' attitude was one of
complete indifference, which left Respondent no alternative but to discharge
-them, she did at one point in her testimony inadvertently corroborate an im-
portant part of Dickson's and Coleman's testimony. She admitted that "Mrs.
Dickson wanted to know if we. had more girls-if we had any girls upstairs
that could do-make production on the operation." Subsequently, however,
when Bush was asked what Dickson had said to Michael, Bush replied, "she
..[Dickson] just didn't show that she cared and she didn't reply to his question."
She was unable to recall anything specific Coleman said other than her general
.testimony that "they all seemed like it was all right with them."
The undersigned is convinced from the testimony and finds that when the
..three girls were called to the office they tried to point out that it was difficult
to make production on the operation and that the only retort they got was that
some new girl had made 80 pair of pants the second day she was there. Dick-
,son's plea that she thought she had improved her production since her transfer,
,met with a negative response from Michael.68 In the opinion of the undersigned,
it, is not important whether Coleman did or slid not say, "I can't help it if that's
,the way you feel about it." Aside from the fact that she was speaking only for
herself, it seems evident that this was not intended to indicate indifference, as
'Respondent suggests, but rather to indicate that if Bert Michael refused to show
an appreciaion of the difficulties involved in making production on their opera-
tion; after what had been said, there was nothing. else she could do to make him
understand. .From the conversation as a whole, it is evident that Dickson and
58 Her production record discloses that she had in fact improved her production. Her
deficiency; for the. week endink . January, 30 was 50.9 percent ; in the following weeks,
February 6, 13, and 20 , it declined successively to.41.6, 39.5, and 37.5 percent.
HAPP BROTHERS, COMPANY, INC. 1561
Coleman were trying to reason and explain matters to Michael and that their
attitude was not one of indifference. The undersigned is convinced that Bert
Michael had already determined in his own mind to get rid of these three girls
and was trying to bring the matter to a conclusion as quickly as possible. As
Coleman testified, "they didn't give us time to explain anything. It looked like
the quicker he got us out of there, the better he liked it."
Although the undersigned is satisfied from the bizarre testimony of James,
Bush, and Bert Michael that Coleman and Dickson were not discharged as part
of any campaign for the elimination of deficiencies, such as they testified to, and,
moreover, that such a campaign never took place, additional support for this
conclusion may be found in the testimony of a group of deficient operators who
testified on this subject. Eloise Cromer, whose production record was at least
equally bad as Dickson's, testified credibly that neither Superintendent James
nor Forelady Bush ever warned her about her production or threatened her
because of deficiencies. Cromer, who according to Bert Michael, was on the
list of deficient operators on February 20 but was one of those whom Bush told
him was "not having to be instructed as much ; and they were doing good work,"
testified that she had more defective work returned to her than Dickson."
Cromer, it should be noted, continued in Respondent's employ during the strike
and left voluntarily on March 1 to have an operation. She was rehired in June
and was put on regular banding where she made production thereafter.
Katie Crumbley, whose deficiency record was worse than both Dickson's and
Coleman's, testified credibly that she was never called to James' office about
her production and was never threatened with discharge by either James or
Bush. Crumbley started to work for Respondent on October 24, 1947, several
weeks before Dickson, and voluntarily quit at the end of the first week of Feh-
ruary. She reapplied for work about a month after the strike started and
despite her poor production record, she was rehired. She worked for about
3 months thereafter and again voluntarily quit. Inez Brown, who Bert Michael
claimed was on the list of February 20 and whose production record was only
slightly worse than Coleman's, testified credibly that she was never warned about
her production by James or Bush and never called to James' office. Susie
Frazier, whose production deficiencies exceeded even Yarbrough's, testified cred-
ibly that no one ever complained to her about her production and she was
never sent to the office because of deficiencies. Nellie Simmons, whose produc-
tion record was only slightly better than Coleman's but who finally made produc-
tion during the week ending February 13, testified credibly that during the time
she was deficient she was never warned by Bush or James or sent to James' office.
Several of the witnesses (lid not deny having been called to James' office and
spoken to about their production, but none of them were discharged. Hilda-
Kitchens, whose deficiency record was worse than all three discharged employees,
testified that no one ever said anything to her about her production until January
1948 when she was called to James' office ; that James asked her if she would like
to try another job to see if she could make more ; that she told him that she would
like to try something else as she could not make it on banding; that James told her
he would move her to the finishing department making belts ; and that after she
was put on this operation she was able to make production. On cross-examination,
. 69 As mentioned above, Instructor Kitchens admitted that at times she had to spend as
much time with Cromer as with Dickson.
6U It will be recalled that Crumbley refused to join the Clothing Workers' Union at Cole-`
man's request and,was one of those called to Michael's office in December after an argument
among the girls at Coleman's table.
1562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kitchens, who was called as a witness for the General Counsel but who is still
employed by Respondent, testified that she believed she asked James to try her
on some other operation and that he had told her unless she improved he would
have to let her go. On redirect examination, Kitchens testified that she didn't
remember whether she told James she wanted to try something else or whether
he asked her if she wanted to be transferred to another operation. The under-
signed finds it unnecessary to determine whether Kitchens asked for the transfer
or whether James suggested it. It is significant that Kitchens who was hired at
approximately the same time as Coleman and whose production deficiency ex-
ceeded all three of the discharged employees,81 but who was not a union member,
was given an opportunity to try something other than line banding only a few
weeks before the others were discharged.02 It may also be noted that although
James claimed that he spoke to several other girls, including Coleman, at the
time Kitchen was called to the office, the latter made no mention in her testimony
of any other employee being present. However, even if James' testimony were to
be credited, his failure on that occasion to offer Coleman a similar opportunity to
transfer is a fact which reflects unfavorably on Respondent's motives.
Another operator who admitted having been called to James' office about her:
production was Addle C. Marchant. Marchant was employed by Respondent as
a regular bander from February 1946 until she voluntarily quit in July 1948.
Marchant, who was called as a witness by the General Counsel, testified that
during the period of her employment she was called'to James' office several times
about her production but was never discharged. On cross-examination, Marchant,
who appeared to be a person of limited intellectual capacity and readily open to
suggestion, answered in the affirmative a question whether when she was called
to James' office, she said, "I can do better, give me another chance." Irrespective
of whether Marchant asked for another chance, it is significant that she contin-
ued to be employed by Respondent despite the fact that after 2 years of experi-
ence, she still had substantial deficiencies on an operation where, unlike the line
banding, a majority of the employees were able to make production.
Mary L. Durden 62 was another deficient operator who testified that she was
sent to James' office. Durden, who was one of the few deficient operators called
to testify by Respondent, claimed that she was sent to James' office about her
production just before Christmas, together with Hilda Kitchens, Yarbrough,
Mary Moody, and Pansy Schroeder. When reminded by Respondent' s counsel,
she added the name of Coleman to the list of those present' According to
Durden, James told the girls "to work harder, to try to make production ; the
more we made, the more we'd make." Durden also claimed to have been called
to James' office in January with several other girls but was not sure Coleman
was present on that occasion. Durden admitted that at no time did James 'or
Bush say anything about discharging girls if they didn't speed up their produc-
61 Kitchens was employed as a line bander from August 1, 1947, until her transfer in the
week of February 6, 1949. Her deficiency average from October 3, 1947, to the date of her
transfer was 65.5 percent.
6 2 Although James testified he talked to Kitchens in December 1947 , Kitchens ' production
record discloses that she was still working on line banding during the week ending January
30, 1948. Apparently, therefore, James must have talked to her around January 30 since
she was transferred immediately after this talk.
62 This employee testified under her married name , Barbree.
64 It will be recalled that neither Bush nor James mentioned Durden as being present
among the girls. called to the latter ' s office before Christmas . Likewise , although Bush
testified she was preseht . at the conference , it was Durden 's testimony that Bush was not,
present.
HAPP BROTHERS COMPANY, INC. 1563
tion. However, in answer to a leading question by Respondent's counsel, she
testified that she got the impression from what James said when he called the-
girls together that she would be let go if she didn't make production. Although
admitting that Bush never said anything about discharging her if her produc-
tion didn't improve, Durden claimed that Bush "kept after her" about her pro-
duction until she finally quit in January 1948. It subsequently turned out,
however, that her reason for quitting was not Bush's "keeping after her" but her
unwillingness to accept a transfer back to the line banding operation on which
she had been having difficulty 0°
Any semblance of doubt regarding the alleged drive to eliminate deficiencies
beginning in Januaryy 1948 was dissipated by one of Respondent's own witnesses,
Leona Atkins, the forelady of Department C, which next to Department A had
the largest number of deficient operators. Although Bert Michael had testified
that he and James called the foreladies down when the drive began in January-
and told them that deficiencies would have to be eliminated, Atkins testified
that she was not aware of any particular drive to eliminate deficiencies in
January 1948. As further indicative of the confusion among Respondent's wit-
nesses, it may be noted that while Bert Michael testified none of the girls out-
side of Department A was ever sent for in the alleged drive, Atkins testified.
that she took Minnie Wheeler, Georgia Revel, and Lillie Snell to James' office in
January and also took three girls down about a week before the strike.
Concluding Findings
The narrow issue presented is whether Dickson and Coleman were discharged
because of their poor production or because of their union activities and affilia-'
tion. On the basis of their production records, they were admittedly among the
worst operators insofar as quantity of production is concerned. Such a factual
showing would ordinarily give at least a prima facie justification for a discharge'
despite the fact that.the objects of such action were active union adherents, and
would require strong contrary evidence to rebut the presumption of legitimacy
of motive existing under such circumstances. However, despite this fact, which
frankly gave the undersigned pause for thought in weighing the facts in this
case, the undersigned is convinced from a careful and detailed analysis of the
testimony and from his personal observation of the principal actors .in the case,
that production deficiency was not the real cause for their discharge and that
their discharge is only intelligible on the basis of their union activities.
Although Dickson's and Coleman's deficiencies were high, the undersigned is
convinced that this was to a material degree clue to the line banding system
itself. A production system in which the majority of the operators fail to reach
the established production quotas is patently defective. It is not, of course,
within the province of the Board to tell an employer not to use a particular sys-
tem of production, even if it is a bad one, or to deny him the right to discharge
an employee for failing to meet an unfair quota. However, the undersigned is
convinced that Respondent was aware that its line banding system was not.
working out and that its failure to take disciplinary action until February 20,
1948, against any employee for sustained failure to make production was due in
part to its realization that the system was not working out. Respondent's
awareness of the nonworkability of the line banding system, as it had been set
up, culminated in the abandonment of the system shortly after the discharges.
66 Durden had the worst production record of any operator in the plant . The undersigned
found her a generally unreliable witness.
1564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In setting up a 131/, cent differential in rates between the regular banding.
and the line banding, Respondent must have anticipated the fact that it might
not be possible to achieve the production quotas. Assuming that in establishing
the differential, Respondent acted in the good faith belief that certain advantages
coming from specialization warranted the differential, Respondent must have
had some reservations as to how it would work out. Obviously, the fact that
most of the employees who were to be put on the line banding'were to be new
employees was a factor which would outweigh at least in part the advantages of
the new system. From the confusion thereafter resulting, the lack of precise
knowledge of the piece-rate basis of their compensation by many operators, the
unwillingness of most regular banders to transfer to the new system, the large
number of employees who were deficient and the substantial size of the defi-
ciencies, it is evident that any optimism which Respondent may have entertained
about the new system was not long sustained.
Aside from any shortcomings of the line banding system or Respondent's doubts
about it, it is clear that Respondent's attitude toward deficiencies, generally,
was a lenient one. It retained in its employ, not merely deficient line banders
.but also regular banders, pocket operators, and other categories of employees
who after several years were still regularly deficient in production. While it
may have spoken to some of these employees from time to time about their defi,-
ciencies, it did not threaten them with discharge or ever previously discharge any.
of them. Neither James, Bush, nor Atkins could recall any employees who had
ever been discharged for production deficiency .a
The record discloses that as far as Coleman's and Dickson's deficiencies are
concerned, no particular attention was paid to the subject prior to the alleged
drive against deficiencies in January 1948. Although Bush claimed that she
talked to Coleman about her production, she admitted that she talked to all
the deficient operators, trying to encourage them to increase their production,
and didn't treat Coleman any different from the rest. Instructor Kitchens had
no knowledge of talking to Bush about Coleman and Dickson any more than any
of the other operators. According to James, he paid no attention to any of the
deficiencies until Bert Michael called his attention to the matter in December.
The latter testified that lie had no particular knowledge of the subject prior to
December 1, 1947, when his brother brought it to his.attention.
With respect to the alleged drive against deficiencies which began in January
1948, the undersigned is convinced that it never took place. Even if a number of
the most deficient employees who would have been among those that one would
expect to be interviewed about their production, had not testified credibly that no
one ever talked to them about their production or threatened them with possible
discharge, the testimony of Respondent's witnesses regarding the drive and the
interviews with employees was so completely confused, contradictory, and lacking
in consistency as to be beyond belief.
Finally, Respondent's testimony of how Dickson, Coleman, and Yarbrough were.
chosen from among the deficient operators to be sent for on February 20 bordered
on. the fantastic. The testimony that other operators were not being sent for.
because they were not being helped as much as Dickson and Coleman or because
they were trying, was not supported by the facts. The testimony as to the help
given Dickson and Coleman for "hours and hours" and for one-third of their time,
e" There was some testimony by Respondent's supervisory officials that instead of -dis-
charging employees in the past they got them to "quit." The undersigned finds this
evidence wholly unconvincing and lacking in, factual support.
HAPP BROTHERS COMPANY,' INC. - ' ' 1 565
.or about producing one-third of their work, at a time when half the other banders
(let alone other operators) were having production difficulties, was completely
incredible. If in, fact, Coleman and Dickson were as hopeless as Bush and Michael,
claimed, Michael's assertion that he had no intention of discharging them on
February 20, but merely wanted to talk to them is absurd. On the other hand, if
all he wanted to do was "talk," his failure to call other operators with high defici-
encies such as Frazier, Cromer, Babcock,'Brown, Revel, Marchant, and Gray, is
beyond understanding. It is not clear from his testimony that lie had ever spoken
to some of these before.°' Assuming even that the foreladies had previously
spoken to some of these operators, if things had reached the serious stage Re-
spondent claimed, a talk by the "big boss" with a substantial number of the
operators with high deficiencies would have been in order, particularly the
operators- like Marchant,,Gray, and Babcock who had'been employed for a far
longer period than the operators for whom he sent.
Respondent's line of approach regarding the discharged operators shifted
somewhat when the actual occasion of the discharge was reached. Although a
considerable part of its case and its argument was based on the fact that these
operators were discharged because of their deficiencies, the emphasis at this,
point shifted and, according to James and Michael, the final cause of their dis-
charge was that they were indifferent. The testimony of Bush, Bert Michael,
and Junes, as previously discussed, was completely lacking in plausibility and
conviction. Coleman's and Dickson's testimony, which was inadvertently cor-
roborated in part by Bush, disclosed that they reacted like most normal employees
about to be fired and endeavored to.save their jobs. They were not indifferent but
tried to explain the difficulties under which they were operating.
Of particular significance in determining whether deficiency in production had
anything to do with their discharge, it may be noted that in a matter of only a
few weeks prior to their discharge, both of them had had a transfer of machine.
Coleman was transferred to another machine during the week ending January 30
and put on another part of the banding operation. Dickson was transferred from
a machine which she had told James was defective on January 29. Under such
circumstances, an employer would ordinarily give them a reasonable length of
time to see if they could improve. This was particularly true in Dickson's case
who had only worked for Respondent since the middle of November and in the
few weeks after her transfer at the end of January showed a marked improve-
ment. On the basis of Respondent's own story that the last production record
before it was that of February 1.3, Coleman was discharged on the basis of
3 weeks' work since her transfer to a new operation, and Dickson on the basis of
'only 2 weeks' performance. The explanation of this precipitate action can, in
the opinion of the undersigned, be traced to only one thing. The Union started
its organizing campaign during the last week in January and by around February
15 it was in full swing. Coleman had become a member and was signing up
employees in the plant. Her previous union record was known to Respondent.
Dickson also became a member and her participation in the house-to-house cam-
•paign marked her as a strong union adherent. Granted that there were more
active union members such as Crawford, Respondent's failure to discharge them
does not, as it suggests, disprove its antiunion motive in discharging Dickson
'and Coleman. • The latter were particularly vulnerable because of their produc-
tion record and this furnistied, Respondent with a convenient alibi for ridding
°G According to his own admission, he had not spoken to'auy of the deficient operators in
Department C.
1566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
itself of at least two of the active union protagonists. From all the evidence,
the undersigned is convinced and finds, that Coleman and Dickson were dis-
charged solely because of their membership and activity-on behalf of the United
Construction Workers' Union.
In concluding that union membership and activity were responsible for the
discharge of Dickson and Coleman, the undersigned was influenced not merely
by the cold testimony of the various witnesses but by the impression which he
received from observing Respondent's key witnesses upon the witness stand.
That impression was one of an organized effort to cover up the true facts of
Dickson's and Coleman's discharge. Since their testimony obviously did not
arise from the wellspring of actual experience it became hopelessly confused and
contradictory, and the witnesses soon manifested the discomfort of the experi-
ence in which they had become enmeshed. Brief comment on the manner in
which some of these witnesses testified follows.
Bush was almost continuously led during her testimony. She was reluctant
to repeat answers previously given and indicated annoyance when the General
Counsel sought to clarify answers given by her on direct examination. At one
point in her cross-examination she stated that her memory was not "too good
-that far back" and that the repeated questions were "getting on my nerves."
During the course of her direct examination she asked to be excused because she
didn't feel well enough to continue testifying. When she resumed the stand
.,several days later she stated that she had been ill and under a doctor's care
in the interim. In answer to leading questions by Respondent's counsel she
testified that during the last 10 or 15, minutes of her previous testimony she
didn't know what she was "talking about" and could not "register questions"
in her mind. From the undersigned's observation of her demeanor and his
analysis of her testimony, he is satisfied that while some of her answers may
hot have been pleasing to counsel, she understood the questions addressed to her
and was testifying in a perfectly coherent and rational manner. Evidence of
this is the fact that after she resumed the stand she was later asked by Re-
spondent's counsel whether he had gone into a certain line of questioning at
the previous session and Bush replied that be had, thus indicating that she
was fully conscious of what was going on' during her previous testimony. Re-
garding the alleged illness which interrupted her testimony and made her semi-
conscious during the last 10 or 15 minutes of the first session, she admitted on
cross-examination that her nervous condition had been brought on by having to
-testify in this case and that prior to the hearing she had not been under a
doctor's care. Jt seems evident to the undersigned that Bush's nervous con-
«ttion was caused largely by the realization that her testimony was in a number
of material aspects contrary to fact.
Another witness meriting special comment is Marie Kitchens. Kitchens' testi-
mony was on a par with Bush's for contradictions; exaggeration, confusion, and
'vagueness. Kitchens was extremely nervous when testifying. Twice during
her testimony she broke into tears. This was not due to the General Counsel's
manner of cross-examination, which generally speaking was mild when com-
pared to Respondent's counsel, but to her evident unhappiness at the predica-
ment into which her conflicting and confused testimony had gotten her.
Superintendent James gave the impression of being confused on the witness
stand and at times was hesitant, flustered, afid unsure of himself. Bert Michael
and his brother exhibited better control and composure than James, Bush, or
Kitchens. However, as indicated above their testimony was confused and. con-
tradictory.
HAPP .BROTHEIRS, COMPANY, INC. 1567
One other matter requiring brief discussion is Respondent's argument that its
record of amicable union relations and the absence of any antiunion bias makes
improbable any antiunion motivation in the discharges. Among other things,
-Respondent refers to the testimony of a number of witnesses that they heard
:both Morris Michael, Jr., and his father say that the employees had a right to
join a union or not just as they wished ; that it was a matter of their own per-
sonal choice. Most of this testimony was of a rather general nature, with the
.employees unable to specifically identify the occasion or circumstances for the
making of such remarks. Whether such statements were made or not, the subse-
quent acts and statements of Respondent's supervisory officials, as related in
Paragraph.B of this section, discloses a different trend in the attitude of Re-
spondent toward engagement in concerted activities by its employees. Likewise,
.the fact that Respondent at one time maintained amicable relations with the
union representing its employees does not give it absolution from antiunion
conduct later on. It may be observed, in this connection, that most of the period
,when the Respondent enjoyed peaceful bargaining relations with a union was
prior to the incumbency of the present management officials, at the time when
-Morris Michael, Sr., and the Happ brothers were the active heads of the Com-
pany. Admittedly, when the Company resumed bargaining relations with the
Union in 1945, it did so voluntarily, although only after the Union disclosed by
a show of membership cards that it represented a majority of the employees.
However, within a year thereafter, Respondent refused to sign another contract
.unless the Union proved its majority in a Board election. This the Union did by
the overwhelming vote of 256 to 32. Respondent signed another contract but by
October of the following year, it was at loggerheads with the Union.
Respondent sought to justify its failure to renew the contract with the Garment
Workers' Union on the ground that the Union no longer represented a majority
of its employees and sought to show through a number of witnesses that during
-the summer of 1947 they talked to Morris Michael, Jr., about the disharmony
which prevailed in the plant because of the Union and requested him not to
renew the contract. The undersigned regards this testimony as being of doubtful
materiality since the complaint herein is not based on any refusal to bargain.
Assuming, however, the relevancy of such testimony, the undersigned was far
from convinced by the witnesses adduced in support of this position. The testi-
mony of three of the main witnesses called for this purpose, Kate Kitchens, Mrs.
J. V. Stewart, and Mrs. John Harden, failed,to disclose any widespread dissatis-
faction with the Union among union members or among the employees generally,
but rather that these three elderly ladies had gone to see Morris Michael, Jr.,
about their own personal grievances growing out of the fact that the Union ob-
jected to their being put to certain work. The evidence fails to disclose that
they were representative of any considerable number of union employees or that
outside of these few employees, any substantial number of union members asked
.Michael not to renew the contract with the Union 08
68 Kitchens, who had only been a union member for about 3 months in 1941, testified that
as many as 50 emplocees complained to her about the Union. On cross-examination, she
admitted that many of these did not come to her directly but that she had overheard
them complaining. She was not sure what the complaining was about except "lots of
fussing, among just everybody in general." She finally "guessed" that the bickering was
about the work and not about the Union. Stewart was equally vague as to how many
complained about the Union. She admitted that when she, Kitchens, and Harden talked to
Morris Michael, Jr., they discussed their own grievances against the Union and did not men.
tion anyone else. Michael in his own testimony at one time claimed at least 200 employees
talked to him about the Union, then stated that 40 or 50 spoke to him. He was uncertain
1 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The history of Respondent' s union relations is not at issue in this proceeding.
Specific acts of antiunion conduct are charged in the complaint and are dealt
with in the course of this Report. In a number of instances, these allegations are
sustained by the testimony, and past favorable relations with a union is no defense
to such conduct.6B With respect to the discharge of Dickson and Coleman, as
has been related in detail above, the overwhelming weight of the evidence is
that the discharges bad a discriminatory genesis.
Before concluding with the subject of the discharges, a word should be said
about the case of Jane Yarbrough. Since Yarbrough is not mentioned in the
complaint as one of the employees discriminatorily discharged or refused rein-
statement, it is unnecessary to determine the reason for her discharge. However,
.the Respondent has cited her production record as indicative of the fact that
poor production was the sole reason for the discharge of Dickson and Coleman.
Yarbrough's production record was admittedly bad. Her deficiency percentage
exceeded even that of Dickson and Coleman. However, it may be noted that
at least two other binders, Frazier and Cromer, had records equally as bad,
and as mentioned above, a number of operators of far longer employment were
retained in Respondent's employ despite substantial production deficiencies. The
evidence discloses not only that Yarbrough had a poor production record but also
that Respondent had considerable trouble with her because of her mischievous
proclivities. She would do such things as cutting the thread. in the machines of
other operators, tying their clothes to the chair, and deliberately damaging mate-
rial. Such acts would in themselves have justified her discharge. It is sig-
nificant, however, that although Respondent was aware of these proclivities on
Yarbrough's part almost from the start of her employment it did nothing about
discharging her until February 20, 1945.0 Possibly the key to its change in
attitude on February 20, 1948, was the fact that Yarbrough had joined the United
Construction Workers' Union.' It is also possible that Respondent determined
to camouflage its antiunion motivation in discharging Dickson and Coleman, by
also discharging an employee whose claim to continued employment rested on
more' tenuous grounds. Whatever Respondent's motives in discharging Yar-
brough, the undersigned finds. nothing in the limited facts available on that
'subject which is necessarily inconsistent with his findings of an antiunion motive
for the discharge of Dickson and Coleman.
E., The strike
After their discharge, Coleman. and Dickson attended a union meeting in Living-
ston's office on Friday evening, February 20, which had been previously scheduled
for employees in Department A to discuss the piece rates in that department.
After they told of their discharge, it was decided to call a special meeting of
the entire union membership for Sunday, February 22. On Sunday afternoon,
as to the basis of the complaints. At one point he claimed the employees were complaining
about being coerced into joining the Union . He later admitted that by 1947 the complaints
had nothing to do with coercion by the Union.but arose out of, dissatisfaction with the
union leadership . The testimony of the other witnesses on this subject was generally vague,
confused, and contradictory.
69 Perfect Circle Company, 70 NLRB 526.
70 Bush testified that she noticed Yarbrough damaging material from the beginning.
Although she claimed that she warned Yarbrough about it , the latter did not stop. Ac-
cording to Bush , she never even reported this to Superintendent James.
71 Gardner , a union official , testified that Yarbrough joined the Union and , did some mis-
sionary work in contacting other employees to get them to sign union cards.
HAPP BROTHERS COMPANY, INC. 1569
February 22, the union members met and voted to go on strike in protest over the
discharge of Dickson , Coleman, and Yarbrough . The next morning , Monday,
'February 23, the strike began. A picket line was set up outside the plant and
approximately 150 employees out of about 350 employees did not go into the plant
that day.
On the afternoon of February 23, the Company authorized the broadcasting of
the following notice over the local radio station, WMAZ :
Here is a message from Happ Brothers:
ATTENTION : Happ Brothers Employees-A "wild cat" strike was attempted
at our plant today. Several of you were prevented from coming into the
factory this morning by the threats and intimidating tactics of pickets at
the door. However, more than one-half of our employees did come in. This
so called strike is absolutely illegal and without any excuse whatsoever. If
those employees who did not report this morning do not,return to work by
Tuesday, February 24, we will have to treat such employees as having quit
their jobs. This we dislike to do, but under the circumstances, we have no
other alternative. You will be protected in your right to enter this factory.
Don't let threats keep you away. This statement is prepared for broadcast
by HAPP BRovIs icas COMPANY , of Macon.
Reports of the strike and of the announcement over the radio also appeared in
the local newspapers, although Respondent did not insert any special announce-
ment in the newspapers . As a result of the radio announcement and the press
reports a number of the employees returned to work by the following day,
February 24. However, approximately 100 employees still remained away and
the picket line continued.
On Tuesday evening, February 24, a meeting of the union officers and negotiat-
ing committee was held in Livingston 's office to decide upon what strategy to
adopt in the light of the deadline fixed by the Company for the return of the
strikers . It was decided to send in one of the employees as a test case the next
day to see if the Company meant what it said when it announced that those who
did not return by Tuesday would be regarded as having "quit their jobs.,, '2
Myrtle Matthews , one of the union members , was chosen as a guinea pig to go
into work the next day. When Crawford telephoned Matthews to tell her this,
she discovered that Matthews had been out sick since the previous Friday and had
been planning to go in to work the following day anyway. Crawford told her to
go in and see what happened.
1. Matthews ' request for reinstatement
Matthews had been employed by Respondent at various intervals since 1918.
Her last period of employment began in 1945 during which she was employed on
the tacking machine. Matthews had become ill on Friday , February 20, and
was unable to work the next day, Saturday. She telephoned in and reported to
Patricia Hensley, part of whose job it was to receive phone calls from employees
who were out, that she was ill and would not be in that day. She asked Hensley
to inform Forelady Bush of this." • When she went to work on Wednesday, Feb-
72 Several of the General Counsel ' s witnesses testified that they understood the announce-
ment. qs meaning that those who did not return by Tuesday were discharged. It is clear,
however, that the announcement itself did not use the word "discharge " but used the
.word " quit."
73 Hensley at first categorically denied receiving - a phone call from Matthews but later
indicated that she was not sure and that she might have received one. Hensley , in general,
was not impressive as a witness , and the undersigned does not credit her denial.
903847-51-vol . 90-100
1570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ruary 25, after having spoken to Crawford over the telephone, she met Forelady
Bush who told her, "You didn't.come in yesterday and he [Superintendent James]
might not let you work today." Bush told her to go to James' office. When she
got there, she met another employee who had been absent, Avie Jones. They both
talked to James and Bert Michael, explaining the reason for their absence. Jones
said her husband had been ill and that she had been unable to call in as she
didn't have a telephone.: Matthews said she had been ill and had telephoned in on
Saturday. James and Michael then took the girls upstairs to Department A where
they had worked. They ordered the power shut off and assembled the girls who
were present that day. Matthews testified that either James or Bert Michael
asked Jones to tell the girls why she had been out; that Jones told the girls her
husband had been sick and that although she had heard the announcement about
the strike over the radio, she didn't have a telephone and couldn't call in ;
that James then asked the girls to hold up their hands if they wanted Jones to
go back to work ; that most of the girls held up their hands ; that James then
asked Matthews why she had been out and she said that she had been sick ; that
another employee, Lillie Mae Griggs, spoke up and said that' she had seen
Matthews on the picket line ; that James then asked the girls if they were willing
for Matthews to return to work and none of them raised their hands; and that
Bert Michael then said he didn't have enough work for her and would send
for her when he needed her. Jones, who was not a union member, was permitted
to return to work.
The testimony of Respondent's witnesses, including James, Michael, and a
number of the operators from Department A, largely corroborated Matthews'
testimony, except that they claimed there was no voting by the employees on
whether Jones and Matthews could return to work. Most of them testified that
after Matthews had told the employees that she had been out sick, Griggs broke
in and said this was not true as she had seen Matthews on,the picket line; that
an argument then arose ; and that Michael then stepped in and said, in substance,
"Girls, we aren't getting anywhere this way. I'll tell you, Mrs. Matthews, we
don't have too much tacking anyway. You just go on home ; when we need you
we will call you." According to some of the witnesses, Michael added the words,
"You are not fired." However, several of the Respondent' s witnesses testified
that they did not recall having heard any such remarks.. The undersigned is not
satisfied from the testimony that the words "you are not fired" or some similar
expression were used, although he is convinced and finds that Michael told
Matthews there was not enough work for her and he would send for her.
Although most of Respondent's witnesses denied that there was any formal
vote taken on Matthews or Jones, their testimony establishes that the views of
the employees with respect to Matthews' and Jones' return were solicited by
James and Bert Michael, and that the employees did express their views on
this subject. Both James and Michael testified that after they had seen Jones
and Matthews in their office, it was their intention to put both of these girls
back to work but that they took them upstairs because they wanted them to
"explain" to the other employees why they were out because there was a lot
.of excitement in the plant.74 It is apparent from their testimony that employee
approval of the move was being sought, even if no formal vote was requested.
Moreover, some of the testimony of Respondent's own witnesses, suggests that
44 James denied that Jones and Matthews were told to explain to the employees why they
had been absent. He testified, "They had to explain it themselves ; I didn't tell them any-
thing." However, Bert Michael admitted that lie asked the two girls to explain why they
had been out.
HAPP BROTHERS COMPANY, INC. 1571
-the employees were informed more directly that their views were being sought.
For example, Mollie Holland testified that the girls "couldn't agree on whether
.for her . to go back or not." She also testified that the employees told James
that they thought the excuse given by Avie Jones was "sufficient." Myrtle
,Niblett testified that the employees "settled" about Jones first. James, testified
that the employees "kept arguing and finally they eon-setated" to take Jones back.
It is immaterial, in the opinion of the undersigned, whether a formal vote
was taken or not. It is clear that after Griggs said Matthews had been seen
on the picket line, Bert Michael refused to let Matthews return to work. It is
also clear that the shortage of work was not the cause of her being sent home.
Although Respondent offered considerable testimony that there was a shortage
'of work for tackers, the record is clear that with this in mind, Bert Michael had
already agreed to take Matthews back and only changed his mind after the
picket line was mentioned.75 Even Bert Michael finally admitted that it was not
the shortage of work which resulted in sending Matthews home but claimed
it was the desire to avoid dissension among the. other employees. However, the
objections of nonunion employees is not a defense to the refusal to reinstate
a union employee.`' Moreover, the undersigned is not convinced from the evi-
dence that the objections of other employees was at the root of Michael's refusal
to reinstate Matthews. Although Respondent endeavored to make it appear
that. there was a furor when it was mentioned that Matthews had been on the
picket line and that all the employees were shouting and talking at once, several
of Respondent's witnesses admitted that most of the talking was done by Griggs
.and Matthews and that very few other employees joined in the discussion. The
undersigned is convinced that it was the mention of Matthews being on the
picket line rather than the opposition of the employees which finally resulted
in the refusal to reinstate Matthews. Although Respondent finally reinstated
Matthews in October 1948, after the filing of the charge in this proceeding, this
does not excuse the discrimination which was practiced against her when she
applied in February 194S. The undersigned is convinced that at the time she
Was refused reinstatement, Respondent had no present intention of reinstating
her." The undersigned finds and concludes that by refusing to reinstate Matthews,
Respondent discriminated in regard to her hire and tenure of employment,
.thereby discouraging membership in a labor organization, and interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act in violation of Section 8 (a) (1) and (3) of the Act.
2. Tho application for unemployment compensation, and the Company's letter
of March 15
On Wednesday afternoon, February 25, a meeting of the Construction Work-
ers' Union was held, at which Matthews reported the results of her efforts to
T5 Respondent introduced in evidence a transcript of the hours worked by tackers in
Department A before and after the strike. The undersigned finds these figures inconclu-
sive on the subject of whether there was any shortage of tacking either shortly before or
,after the strike started, It is significant that shortly before the strike, Sallie Watkins
was transferred from Department B to Department A to do tacking. Likewise, shortly after
the strike started, Carol Hugeley who had been out sick and who had done serging before
the strike, was put on tacking in Department A. The undersigned found Respondent's
explanation of these transfers unconvincing.
T°N. L. R. B. V. Sun b-ine Mining Co., 110 F. 2d 780 (C. A. 9) ; N. L. R. B. v. Goodyear
Tire and Rubber Co., 129 F . 2d 661 ( C. A. 5) ; Pacific Powder Co., 84 NLRB 280.
17 )Iatthews received a letter from Respondent, dated )larch 15. 1948, advising her that
her employment had been "terminated." This letter is discussed in the next paragraph of
the Report.
1572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.secure reinstatement. Livingston told the employees that in view of the Com-
'pany's refusal to take Matthews back it would appear that they meant what they
said in the announcement over the air and in the articles in the newspapers.
He therefore advised them that they try to seek employment elsewhere and
suggested that they file applications for unemployment compensation in the
.meantime.
The following morning, February 26, 1948, the bulk of the strikers appeared
at the local office of the State of Georgia Department of Labor, Employment
Security Agency, and filed applications for unemployment compensation. On
.April 7, 1948, the Director of the Division of Unemployment Compensation of
the Georgia State Department of Labor issued a ruling holding, in substance,
that since the stoppage of work in which the applicants were engaged was due,to
a "labor dispute," they were ineligible for unemployment compensation under
Section 5 (d) of the Georgia Unemployment Compensation Law."
In the meantime, on March 15, 1948, Respondent sent out a letter to most of
the strikers to the following effect :
This is a candid letter about your employment relation with this Com-
pany.
As you know, even before you went out on strike we were not able to
give you full work because sales have been off. Our salesmen are now out
in the_ territory with the fall line but their orders are not encouraging.
When you and others did not return to work, we had to hire several new
employees for the balancing of our production.
With these replacements we have all of the workers we can use to produce
the goods which it looks like we can sell during the coming months.
It seems to me, therefore, that I ought to tell you frankly that it does not
appear that we can now reemploy you.
You have been insured under a group insurance policy with the Southern
Life Insurance Company. This policy provides that we must notify the
company within thirty days of the termination of employment of any em-
ployee. Our information is that you have thirty days after that within which
to convert the policy into an ordinary life policy. (We suggest that you
consult the Southern Life Insurance Company or its agent, Mr. E. L. Moore,
in the Hart Building, Macon, Georgia, for your rights under the policy, as we
do not assume responsibility for the correct interpretation of it.)
In the light of this situation, we are notifying the insurance company
that your employment has been terminated as of this date.
Of course, if business conditions improve or openings arise, we assure
you that you will be given first consideration if you see fit to apply for your
old job.
Upon being notified on April 15, 1948, of their disqualification for unemployment
benefits, the claimants filed an appeal with the Georgia Labor Agency upon the
ground that they had been advised by Happ Brothers in its letters of March 15
that they had been replaced. Thereafter, a hearing was held on May 27, 1948,
before a three-man tribunal appointed by the State of Georgia Labor Department,
to determine the merits of the claimants' appeal. After taking sworn testimony
of a number of the claimants, the tribunal found, in substance, that although
Ta Section 5 ( d) of the statute provides that an individual shall be disqualified for unem-
ployment benefits for any week in which it is found that "his total . . . unemployment is
due to a stoppage of work which exists because of a labor dispute at the factory . . . at
which he is or was last employed."
HAPP BROTHERS; COMPANY, INC. 1573
the stoppage of work on February 23 was due to a labor dispute and the claimants
were therefore not eligible for benefits from that date until March 15 under.
Section 5 (d) of the Georgia Statute, that that section ceased to apply after
March 15, 1948, when the Company notified the strikers that there was no longer
work available for them. The claimants, with certain exceptions, were held to
be eligible after March 15 for unemployment benefits, provided they met the re-
quiremefits with respect to availability for employment and waiting period.
Subsequent to the receipt of the letter of March 15, the picket line continued
for awhile but on a gradually dwindling basis as more and more employees
found work elsewhere or lost interest. By the early part of June 1.948 the picket
line broke up altogether.
3. Other requests for reinstatement
Subsequent to the Matthews incident a number of other employees made
abortive efforts to secure reinstatement. Several of these took place prior to
Respondent's letter of March 15 and several subsequent thereto. These are
related below as bearing on a determination of the violation of the rights of the
individual employees involved or as shedding light on Respondent's intentions
generally with. respect to the strikers. Outside of these few individual applica-
tions no further request for reinstatement was made until. January 24, 1949,
when 77 of the strikers sent Respondent an identical letter,, prepared by the
Union, applying "for a job."
a. Alice J. Ba-ilcy
Bailey worked for Respondent for about a year in 1937 and returned to work
again in January 1948. On the day of the strike she was absent on account of
the illness of her stepfather and son. She telephoned on Tuesday morning, after
the strike had started, and told Hensley that she had illness in the family and
would not be in' until the following clay. She asked Hensley to give Forelady
Adkins the message.7° When she returned to work Wednesday morning, February
25, she found that her time card had been removed. Adkins said that her card
was in the office, that Mr. James had it. She told her to go to the office and
talk to him. When Bailey got to the office, James and Bert Michael were there
and Adkins came in subsequently. According to Bailey's credited testimony,
Bert Michael asked her why she- had been odt acid she told him that it was
due to illness in the family. Michael told her that all those that had been out
on Monday and Tuesday were laid off. She told him that she didn't know that and
said that she needed her. job, since she was the sole support of her family. She
showed him a doctor's, prescription for medicines for the ill ones at home.
Michael told her that he could not help her but that "maybe after they are all
well, come back, I might help you." Bailey made no further application and was'
never called back.
Michael did not deny any of the statements attributed to him. Both Adkins
and James testified that Bailey had been absent a good deal and that James
told her to go home and when she was able to work regularly to come back
79 Hensley denied receiving a telephone call fromi Bailey. Hensley testified that she
received a great number of calls from employees on Monday and Tuesday and although she
was unable to recall the name of a single employee who called , she was "positive" that
Bailey didn't phone. The undersigned has previously found her not to be a'reliable witness
and does not credit this denial.
1574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
again and he would talk to her. Adkins claimed that she had made a record
of Bailey's absences but stated that she didn't have it anymore. The under-
signed finds it unnecessary to determine the reason why Bailey was denied
reinstatement since she is not named in the complaint as one of the employees
who was discriminatorily discharged or refused reinstatement. Bailey was not,
a union member and made.no claim to having joined the strike. However, her
testimony regarding the statement made to her by Bert Michael regarding
those who had not returned by Tuesday, is material in determining Respondent's
intentions and motives with respect to the strikers generally.
b. Catherine Griggers
Griggers was employed since April 9, 1946, in Department B as a pocket
operator until she joined the strike on February 23, 1948. She walked the picket
line several times but since she lived out in the country, about 15 miles from
Macon, she did not come in every day. Another reason for her lack of regular
attendance on the picket line, according to Griggers, was the illness of a niece
of whom she was taking care.
On March 1, 1948, Griggers decided to-return to work and came in to talk to,
Crawford. The latter did not object to Griggers going back to work and told
her to go in and see what happened.80 When Griggers got into the plant, she
went to her machine as usual. Shortly thereafter, Haisten came in and Griggers.
told her she had been out because she was taking care of her sick niece. Haisten
told her she would have to see Superintendent James before she went back to
work. When Griggers got down to James' office, there were two other ladies
waiting to see him, Sue Martin and Mrs. Clifford Allen. James' secretary, Kate
Kemp, also was present in the office. After James arrived, he sent for Forelady
Haisten. When James asked the ladies why they had been absent, Martin
said she had been ill and showed James some receipts for X-rays, fluoroscopes,.
and blood tests, and said 'she could get a doctor's certificate if necessary. Allen
also said she had been ill and showed James a doctor's certificate. Griggers told
him she had been out taking care of her niece who was ill. According to Grig-
gers' testimony, Haisten said she knew Martin was out sick, even though sh.^
didn't have a doctor's certificate but, referring to Griggers, she said "I don't
know about her. She's been seen on the picket line two or three times." James
then replied, "Well, I will leave it up to you, you know, how it is up there."
Haisten laughed and said, "Yes, I do know how it is." James then told Griggers.
he couldn't use. her right then but would take her application and send for her
when he needed her. Griggers further testified that in April she telephoned the.
plant and spoke to Haisten about coining back to work. Haisten laughed and
said, according to Griggers, "I don't see-what you all want to do that for?"
and then said "Well, I don't have anything to do with that, you'll have to go.
down and see Mr. Michael." Griggers made no further efforts to see Michael
after this occasion because, according to her testimony, she felt "it wouldn't
do any good."
Respondent's witnesses in the main corroborated Griggers' testimony, except
that they all denied Haisten made the remarks attributed to her by Griggers_
w DeLoach testified that he was present when Griggers told Crawford she was going
back to work and that while they were standing there , he saw Bert Michael and James'
looking out of the factory door . There was no such testimony by either Crawford or
Griggers . The undersigned considers this a product of DeLoach 's active imagination and
does not credit his testimony that he saw Michael and James on this occasion.
HAPP BROTHERS COMPANY, INC. 1575
According to Martin, Allen, Haisten, James, and Kemp , who testified for Re-
spondent, Haisten was not present during the interview, except that she came
in for a minute to lay some time cards on Kemp's desk and then left the room.
The undersigned found the testimony of these witnesses vague, contradictory,
and unimpressive. Although Martin and Allen testified that they saw Haisten
in James' office when she come in with the time cards and Martin also testified
that it was Haisten who seat her to James' office that morning, Haisten testified
that she didn't see Martin or Allen at all that morning, and that when she got
down to James'. office to bring the time cards, only James and Griggers were
there. Haisten denied that she said anything about Griggers being on the
picket line when she came into James' office. However, her testimony indicates
that she suspected Griggers of being connected with the strike. When asked
on cross-examination why she sent Griggers to James' office, Haisten testified,
"Catherine Griggers was out since the strike is all I know. She was out all
that time." The testimony of Respondent's witnesses as to what James told
Griggers was confused, contradictory, and lacking in conviction. Martin, on
both her direct and cross-examination, referred only to the fact that James-told
Griggers he didn't have enough work for her and would send for her if be
needed her. On redirect examination, in answer to a leading question, she
testified that James referred to the fact that Griggers was supposed to call in
when she was absent. According to Allen's testimony, James first told Griggers
she had violated company rules by not calling in on the second day of her
absence and then told her he didn't need her right then. Kemp testified that
James told Griggers that "he couldn't use her right then," but could not recall
having heard him say anything about Griggers having violated any company rule
with respect to absences. During her cross examination, Kemp testified that she
was busy operating a duplicating machine some 25 to 30 feet away from where
the conversation was taking place, but insisted she could hear what was going.
on, although she admitted she didn't hear everything. Later she modified her
testimony and stated that she hadn't been operating the machine that morning.
She subsequently modified this and testified that she didn't remember whether
she was using the machine.
James, in his testimony, at first made no mention of having told Griggers she
had violated a company rule about calling in on the second day of absence, but
testified merely that after Griggers told him she had been out taking care of
her niece, he then told her that "I was very sorry but just at present I had no work,
and that I would-I had no work for her. I didn't need any pocket operators
then, and I left her go, but I took her application." When asked by.the.under-
signed whether he had told her she had lost her job, he replied, "Yes, sir, for not
calling in." He subsequently modified his testimony and stated he didn't tell
Griggers he wouldn't ever take her back. He claimed that he hadn't sent for her
after she filed the application because she wasn't a good operator when she had
worked. On cross-examination, his testimony was utterly confused as to whether
Griggers was not taken back because she hadn't called in during her absence, or
because he didn't need any more pocket operators at the time, or because she
was a poor operator. James at first testified that he didn't need pocket operators
at the time , but when confronted with the fact that Respondent had in fact hired
another pocket operator on the same day that Griggers applied, James testified.
as follows :
Q. (By Mr. STANFORD.) Don't you know, as. a_matter. of fact, Mr. James,-
that you hired a pocket maker on March 1, 1948?
1576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Well, yes, sir, because I felt this girl would make me a good pocket.
operator.
Q. You felt this new employee with no experience would make you a better
one than one who had been a pocket maker two years?
A. One had been there two years and was deficient.81
Q. During the two years that Catherine Griggers had been at Happ
Brothers, did you warn her about her deficiencies?
A. Yes, sir.
Q. Did you tell her if she didn't do that, you would discharge her?
A. I can't exactly remember, but she was brought down several times.
Q. But you let her stay there two years continuously and never discharged
her?
A. Yes, sir.
Q. As a matter of fact, since Mrs . Griggers had come back to Happ Brothers
on March 1, 1948, you have hired many pocket makers, haven't you?
A. I have, sir.
From an evaluation of all the testimony regarding Griggers' application for
reinstatement, the undersigned finds that the incident, occurred substantially
as Griggers testified.. The undersigned is satisfied that neither Griggers' alleged
failure to call in no-the lack of work were responsible for the refusal to
reinstate her. The record affirmatively discloses that many other- pocket
operators were hired at around the same time that Griggers applied.82 From
the testimony as a whole, the undersigned is convinced and finds that Griggers
was refused reinstatement because of her participation in the strike 83 By
refusing to reinstate Griggers., Respondent discriminated in regard to her hire
and tenure of employment, thereby discouraging membership in a labor organi-
zation, and interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act, in violation of Section 3 (a)
(1) and (3) of the Act.
Since considerable testimony was devoted to the so-called rule requiring
employees to call in after the second day of absence, it is appropriate at this
point to briefly set this issue at rest. The only basis for any such rule is the
old contract with the United Garment Workers Union. An excerpt from this
contract was posted on the bulletin board and provided (1) that any employee
who was absent from work for 1 week without notifying the Company, was
subject to dismissal, and (2) that failure to work every day in the week without
a satisfactory excuse would result in dismissal, if it occurred twice in any'
calendar month. When these two clauses are read together, the apparent meaning
is that an employee may be absent for at least a week without notifying the
Company, but that upon his return he must furnish a satisfactory excuse, and
upon his failure to furnish.such an excuse after two periods of absence (not merely
2 days) he is subject to dismissal. However, irrespective of the meaning of
this clause, the record discloses that employees were frequently absent for more
81 Griggers ' production record from Noveinber 28, 1947 , to February 20, 1948, shows
small deficiencies in 5 weeks . This may be compared with the record of Babcock who was
retained despite substantial deficiencies throughout 1947 and 1948.
82 In addition to Martin and Allen who were both pocket operators ( Martin with less
seniority than Griggers ), the record discloses that 14 other pocket operators were hired in'
March after Griggers applied.
83 Since, as will appear from the conclusions hereafter reached , the strike was an unfair
labor practice strike, Griggers was entitled to reinstatement on request, irrespective of
whether she had been replaced.
HAPP BROTHERRS, COMPANY, INC. '1 577
than 2 days without calling in and even without bringing any doctor's certificate
.or similar documentary evidence." So far as appears from the record, the report-
ing in rule and the rule for furnishing a satisfactory excuse for absence were
never strictly enforced. Since the enforcement of such rules were within the
discretion of management, it is evident that the strict enforcement thereof during
the strike would automatically exclude all strikers seeking reinstatement after
February 25, and would in itself be discriminatory.
c. Mary J. Asbell
Asbell was employed as a pocket operator and worked for Respondent since
1925. For some time prior to the strike, she was permitted to start work at
10 o'clock instead of the regular beginning time, 8 a. m.s" On the morning of the.
strike, she arrived at the plant between 10 and 11 a. in. According to Asbell's
testimony, she did not feel well enough to work that day due to having had eight
teeth pulled the previous Friday, and she was merely coming in to get some
-buttermilk which one of the other employees, a Mrs.. Ard, had brought in for
her. While she was there, she saw Bert Michael who asked her whether she
was going to work that day and she told him she didn't feel well enough on
account of her teeth. He told her to come back the following morning and she
promised that she would. Asbell did not return on Tuesday as she had promised,
but telephoned instead on Thursday. Although she was somewhat evasive as to
-why she did not seek to return until Thursday, Asbell, who was a member of
the Union but who did not join the picket line, admitted on cross-examination
.that she was staying out at least "partly" because of the three girls who had
been discharged, and finally stated that she hadn't wanted to cross the picket
line. Asbell testified that when she telephoned on Thursday, she spoke to Bert
,Michael and asked him if she could come back to work ; that he said to her,
"You heard the announcement over the radio and read the paper, didn't you?";
that she said she had; and that finally he told her to wait until the strike was
,over and "I'll see what I can do for you." In July, she telephoned Michael again
to ask if he would take her back and he told. her he didn't have any material
at the time, but said that when he needed her he would send for her.
Bert Michael testified on direct examination that he had a telephone conversa-
.tion with Asbell on the day of the strike," and that she said she could not go
back to work until the next morning on account of her teeth. He denied, how-
ever, having any further conversation with her until July when she telephoned
,him for a job and he told her that he didn't have enough work for pocket opera-
.tors then. On Gross-examination, Michael was not as certain of his denial that
Asbell had not called on Thursday after the strike began, and stated that he
could not definitely say she had not called but merely that he had no recollection
of her calling.
8; Allen testified that she had been ill on previous occasions for 4 or 5 days without
bringing a certificate and that the reason she did so on this occasion, was because "there
had been a disturbance down there." Martin also testified she had been out for intervals
of several days due to illness without being asked to report to James' office. Crawford
and Carter testified credibly that they had been out 3 weeks and 9 days, respectively, without
-calling in or being asked for an explanation upon their return.
ss According to Asbell's uncontradicted testimony, she had told Morris Michael, Jr., that
,she was unable to come in at 8 o'clock as her maid had left, and he told her that he needed
pocket operators and would permit her to come in later.
86 It will be recalled that Asbell testified in this connection that her conversation took
place in person at the plant.
1578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Asbell had been a member of the Garment Workers Union and was also a
member of the Construction Workers Union. Although she was somewhat eva-
sive as to why she had stayed out until Thursday, the undersigned is convinced
that she was trying to "sit out" the strike until she could see which way the
wind blew. She did not wish to actively join the strike but on the other hand,
she did not wish to cross the picket line. By Thursday, she had apparently lost
her nerve and, being still somewhat timid about crossing the picket line and
not altogether positive that Michael would take her back, she conceived the
device of telephoning him. Outside of her evasive testimony regarding her
reason for staying out until Thursday, the undersigned found Asbell to be a
truthful witness and considers her worthy of credit. Whatever may have been
her reason for not seeking to return until Thursday, the undersigned is satisfied
that Bert Michael considered her to be a striker since she was one of those
who received the March 15 letter advising her that she had been replaced "when
you and the others did not return to work." The undersigned finds and concludes
that Asbell was refused reinstatement. on February 25, because, she was con-
sidered to be one of the strikers who failed to return by the February 24 deadline
established by Respondent's radio announcement. It is found that Respondent
thereby violated Section 8 (a) (1) and (3) of the Act 8'
d. Virginia Stapleton
Stapleton was employed as a bander in Department B and had worked for
Respondent since 1942. On January 26, 1948, after talking to Forelady Haisten
and receiving permission from Bert Michael, she took a leave of absence for the
purpose of having an operation. Stapleton had been a member of the Garment
Workers Union, and after her operation, while convalescing at home, she joined
the striking Union. Stapleton testified that she was dismissed by her doctor on
March 5, and telephoned Bert Michael on the following Monday or Tuesday to
tell him she was ready to come back to work ; 88 that when she spoke to Michael
and told him she was ready to return to work, he said to her "he wasn't taking
any of them back" ; and that without making further inquiry as to what he meant,
she hung up. Stapleton never returned to work for Respondent thereafter.
Bert Michael denied having a telephone conversation with Stapleton in which
he said "I'm not taking them back." Respondent also called as a witness,
Dr. W. W. Baxley, who operated on Stapleton. Dr. Baxley testified that he
had not seen Stapleton on March 5, as she had testified, but that after her dis-
charge from the hospital, she had visited him at his office on February 14, 20,
and 27, and on March 27. He testified that on either February 27 or March 27,
he asked Stapleton when she was going back to work and she told him the plant
was on strike, and that she didn't think she would go back until the strike was
settled. He further testified that on March 5, Stapleton was not well enough
to return to work, although he admitted she could have done so if she wished to.
The dates of Stapleton's visits to the doctor's office were corroborated by the
doctor's secretary who testified from her records that she had no record of any
visit on March 5.
81 The fact that an employee is not a union member or a striker , does not make a dis-
charge or refusal to reinstate , based on the mistaken belief that he is , any less discrimi-
natory . Industrial Cotton Mills Co., 50 NLRB 855; Des Moines , Springfield and Southern
Route, 78 NLRB 1215.
88 According to Stapleton , she made the call to Michael after talking to Crawford. There
is no reference in Crawford ' s testimony about telling Stapleton to call Michael.
HAPP BROTHERS COMPANY, INC. 1579
It is possible that Stapleton was mistaken by one week as to the date of her
visit to Dr. Baxley's offlce.8° However, there are other factors which raise doubt
concerning Stapleton's testimony. Since admittedly she had received permission
to take leave for about 2 months on January 26, 1948, it is difficult to understand
why she did not simply go back to work when she felt well enough, without having
to make any telephone calls. Although Stapleton testified that-she had signed a
-union card on February 16, while convalescing at home, there is no evidence
that she attended any union meetings or participated in picket-line activities.
It is difficult to understand, therefore, why Bert Michael should have told this
woman who had received permission to take a leave of absence for 2 months
(which leave had not yet expired), and who so far as appears was not actively
-connected with the Union or the strike, that he was not "taking any of them
back." The record discloses that Virginia Stapleton was not one of those who
received the March 15 letter. Considering the vagueness of her testimony and
the credible testimony of Dr. Baxley regarding the dates of her visits, her physical
condition and the statement made to him as to her intention to return to work,
the undersigned concludes that the General Counsel has not established by a
preponderance of the evidence any discriminatory discharge or refusal to
reinstate Stapleton and will recommend dismissal of the complaint as to her.
e. Minnie Lee Atkinson
Atkinson was employed by Respondent since 1941, and prior to the strike
worked as a tacker in Department B. She joined the strike on February 23,
1948. After the letter of March 15, 1948, had been mailed out to most of the
strikers and she did not receive a copy, she went into the plant around March 20
to make inquiry as to the reason therefor, since she was covered by the group
insurance policy. She saw Morris Michael, Jr., and told him she had not re-
ceived one of the letters. He told her she should have received one and sug-
gested that she talk to Bert Michael about it. When she saw Bert Michael
and told him she hadn't received a letter, he also told her she should have re-
ceived one and suggested that she see Mr. Anderson, the office manager who had
sent out the letters. She also asked Bert whether she "had, a job there" and
he -told her, according to her testimony, that she had- been "fired along with the
others" when they didn't come back. He told her, however, that he would take
her telephone number and call her if he needed her. He also mentioned that
he' had only enough work for one tacker at that time and that if there were
any more tacking in the future, before calling her back, he would avail himself
of the services of two other nonstriking operators who had- been previously
transferred to another operation in the summer of 1947, when tacking had
become short. She asked him if there wasn't some other type of work she could
perform, stating that she had run a belting machine and had done inspecting
in the past. He told her he didn't have anything else. Michael's testimony, in
the main, corroborated that of Atkinson. There was no direct denial of the
statement alleged to have been made to her by him that she had been fired with
the others when she failed to return, but Michael claimed that he told her he
didn't have enough work for her. Michael admitted that the other tacker whom
he refused to replace by Atkinson had less seniority than she. He denied having
aired any tackers since the strike to take Atkinson's place. He did not deny
89 Admittedly she visited his office on February 27, which was a Friday, as was March 5,
-the claimed date of the visit when he was supposed to have dismissed her.
C
1580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
0
that she indicated her willingness to perform other types of work. Atkinson's
testimony regarding this incident is credited.
According to Atkinson, after she had left Bert Michael, she went to Anderson's
office, in accordance with Michael's suggestion. When she told him that she
hadn't received the letter, he told her that one had been put in the mail and
that she probably would get it. She then asked him whether that meant she had
been fired and he replied, " I guess you was." Anderson was not called as a
witness and Atkinson's testimony is credited.
Atkinson further testified credibly and without contradiction that around
April 10, she went down to the plant to get some money out of the employees'
credit union; that while there she saw Bert Michael and asked him "if be
wasn't ready to give me some work"; that Michael replied that he didn't have
anything ; and that she told him she was going out of town for awhile but that
if anything came up, he could use the telephone number she had previously given
him. Atkinson was never recalled to work. Since Atkinson's request for rein-
staternent7 was made after the letter of March 1.5, the undersigned finds it un-
necessary to determine, in view of the conclusions hereinafter reached regard-
ing the effect of that letter, whether the refusal to reinstate her around March
20'was discriminatory.
f. Jack E. Harrell
Harrell was employed by Respondent from 1.925 until he went out on strike
on February 23, 1948. He originally was employed as a presser, but at the
time of the strike worked as a marker in the cutting room. Around March
20, 1948, Harrell went to the plant to pay some money he owed to the employees'
credit union. While there he saw Bert Michael and asked him if he would con-
sider giving him his job back. Michael told him that his job had been filled but
that if anything opened up he would send for him. Respondent did not at any
time thereafter call Harrell back to work.90 Since, as will appear from the
conclusions hereafter reached, the strike was an unfair labor practice strike,
Harrell was entitled to his job upon application, even though he had been re-
placed. However, in view of the conclusions reached in this Report with
respect to the effect of the March 15 letter, it is unnecessary to base a finding of
discrimination on the refusal to reinstate Harrell on March 20.
g. Samuel L. Thomas
Thomas was employed by Respondent from January 1927 until. February 23,
1948, when he went out on strike . At the time of the strike, Thomas was em-
ployed as a presser on shorts and knickers. Thomas testified credibly that in
the latter part of March he went to see Bert Michael about getting his job back;
that Michael told him, "Well, like things are I can't see that I can put you back
because, before you went out like you did, you wasn't having full-time work
as yolr know, you and Mr. Adkins" ; that he offered to do pressing on the legging
and topper machines as well as on the knicker and shorts machine ;S1 and that
Michael said he would take his phone number and call him if anything arose.
Michael admitted Thomas' application and admitted that he knew Thomas was
a striker. However,, Michael claimed that there were two pressers on knickers
90 The above findings , are based on the testimony of Harrell and Michael which was sub-
stantially in accord.
91 The legging machine is used for pressing the legs of long trousers and the topper
machine is used for pressing the top of the trousers.
HAPP BROTHERRSi COMPANY, INC. 1581
and shorts before the strike, Thomas and Albert Adkins; that they had been
working part time before the strike; and that there was not enough work for
the two of them after the strike. He denied that Thomas asked for any other
typo of work.
Irrespective of whether there was a shortage of work for pressers after the
strike, the evidence is clear that before the strike Bert Michael had been willing
for the two pressers to share whatever work there was, and the undersigned
is satisfied that his refusal to do so after the, strike was due primarily to the
fact that Thomas "went out like you did." Although Thomas offered to perform
work on one of the other pressing machines, and according to Bert Michael's
own admission, a topper presser was hired after Thomas had applied, the latter
was not recalled. In view of the findings hereinafter made with respect to the
March 15 letter, it is unnecessary to determine whether the refusal to reinstate
Thomas around the end of March was discriminatory.
h. Sallie Austin -
Austin worked for Respondent at various intervals beginning in 1933. Her
last period of employment was as a regular bander from 1946 to February 23,
1948, when she went out on strike. Austin testified that about the third week
in Arpil 1948 she went to see Bert Michael about getting her job back, and that
Michael told her that she had been replaced and that he didn't have anything
open for her just then but would call her when he did. Michael admitted having
a conversation with' Austin substantially as she testified. He further testified
that he later found out that James had hired someone else to fill a banding
vacancy which thereafter arose; that subsequently when there was another
opening, he and James sent for Bush and told her to call Austin back ; and that
Bush told them that there was no need to send for Austin right then because she
was expecting a baby. James testified in support of Michael that, after Austin
had applied in April, he later needed another banding operator but "overlooked"
Austin and hired someone else, and that when a vacancy arose thereafter in.July,
he sent for Bush who told him it wouldn't be necessary to call Austin back as
she was then pregnant.
The undersigned entertains serious doubt as to the authenticity of the story
regarding the subsequent intention to rehire Austin and believes that it was
manufactured by Respondent in order to explain away Respondent's failure to
rehire Austin in the face of the fact that its own records disclose that banding
operators were hired on April 21, May 17, and July 12, 1948.82 Austin's baby was
not born until January 21, 1949, and despite the fact that she had an excellent
production record, she was not consulted as to whether she wanted to return
after April. In view of the conclusions hereafter reached concerning the March
15 letter, it is unnecessary to base any finding of discrimination on Respondent's
refusal to reinstate Austin in April.
i. Inez Brown
Brown was employed by Respondent since August 20, 1947, as a line bander.
On Friday, February 20, she became ill and was given permission by James to go
home. The following Wednesday, February 25, not having heard about the
strike, she went to, the plant intending to return to work. When she got to the
plant, she saw the strikers and decided to join the picket line. She remained
92 One bander was hired on April 21, one on May 17, and three on July 12.
1582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out until the picket line had finally disintegrated in June. Thereafter, in the
latter part of July or early in August, she telephoned the plant, according to
her testimony, and spoke to James about getting her job back. James told her-
to come down and that he would talk about it. The following day, she went
down to the plant in the morning.. She testified that after waiting for a while
in James' office, the two stenographers who worked there came in and that
shortly thereafter Bert Michael and James arrived; that James asked her what
machine she had worked on; that when she told him "machine 90," James told
her they had someone else on that machine.; that lie then asked her whether
she would be willing to try some other kind of work; and that she told him she
would be willing to learn something else. At this point, according to Brown's
direct testimony, Superintendent James asked her whether she had signed one
of the union cards and when she replied in the affirmative, he told her he didn't
have anything for her just then and asked her to file an application. On cross-
examination she modified her testimony and stated that it was Bert. Michael,
not James, who asked whether she had signed one of the union cards. James
did not testify regarding this incident,.but Bert Michael testified that he had
no recollection of any conversation with Brown in June or July.
In its brief, Respondent refers to this discrepancy in Brown's testimony and
calls attention to the fact that Brown changed her testimony after having
given other testimony on cross-examination that James had seen her on the
picket line. According to Respondent. Brown by admitting that James had seen
her on the picket line realized that it would then be unlikely that he would have
asked her whether she had signed a union card at their meeting in July, and
that she then deliberately "switched her story and said Bert Michael was the one
who asked if she had signed a card."
In the opinion of the undersigned, the argument by Respondent assumes a
degree of sagacity on Brown's part which she did not appear to possess. It is
significant that according to her version on direct as well as on cross-exam-
ination, both James and Bert Michael were present at the interview. It is
possible that in testifying on direct examination she inadvertently attributed to
one of there a remark made by the other and that when the incident was gone
into in greater detail on cross-examination, she recalled that Bert Michael was
the one responsible for this particular remark. Moreover, although, there is some
testimony by Brown that James saw her and talked to her on the picket line,
when this testimony is read in full context it is apparent that what the
witness meant was not that James had talked to her personally but that during
the strike, while he was entering the plant, he greeted a group of the pickets,
including herself, with a "Good morning" or "Hi, girls." Considering the fact
that approximately 100 employees were on strike, it is entirely possible that
James may have greeted various groups of the pickets (luring the course of the
strike without recognizing or recalling individual strikers in the group. More-
over, it is possible that he may have seen Brown on the picket line and re-
membered her and yet may have seen fit to ask her whether she had signed a
union card, since some of those who joined the strike had not signed cards but
refused to cross the picket line in solidarity with the three discharged girls.
He may have been' interested in knowing whether her association with the
Union was of the more active kind involving the signing of a card.
Brown's testimony as to what transpired when she entered Respondent's plant
on this occasion, included details of such a character that only a consummate pre-
varicator and a person possessed of far greater intelligence than Brown exhibited
could have dreamed them up. Although Brown was somewhat talkative and at
HAPP BROTHERS COMPANY, INC. 1583
times argumentative, the undersigned is convinced that on the whole she was
trying to tell a truthful story. On the other hand, as previously indicated, neither
James nor Bert Michael impressed the undersigned favorably on the witness
stand. Nevertheless, in view of the doubt cast upon this portion of Brown's tes-
timony, the undersigned will make no findings adverse to Respondent. on the basis
of Brown's testimony regarding this incident.
4. Contentions and conclusions
The General Counsel contends that by the radio announcement of February 23,
1948, Respondent, in effect, discharged the strikers who refused to return pur-
suant to this ultimatum and that this conclusion is fortified both by Respondent's
action in refusing reinstatement to those strikers who applied after February 24
and by the letter of March 15. The Respondent contends that the radio announce-
ment was not a discharge but at most a tactical maneuver to induce the strikers
to return. Respondent further contends that since the strike was not an unfair
labor practice strike it had a right to replace the strikers and that they were
not discharged by the March 15 letter since "they terminated their own employ-
ment by not applying for reinstatement prior to their replacement."
The undersigned does not agree with the contention of the General Counsel that
the radio announcement of February 23 amounted to a discharge of the strikers.
It seems evident that the announcement was primarily intended, not to effectuate
a discharge, but as a tactical maneuver to induce the strikers to abandon the
strike and return to work.93 However, since the strikers were engaged in con-
certed activity they retained their status as employees within the meaning of
Section 2 (3) of the Act.9' A strike by employees in sympathy with discharged
employees is no less a "labor dispute" within the meaning of Section 2 (9). of the
Act.fl" Even if, as Respondent contends, the purpose of the strike was to force it
to bargain with the United Construction Workers, it would nevertheless be a pro-
tected concerted activity.96 Respondent's apparent contention that since the
Union was not in compliance with Section 9 (f), (g), and (h) of the Act a strike
for recognition would be an illegal, unprotected strike, under the doctrine of the
Americtvnt News Company case, 55 NLRB 1302, is wholly untenable. Failure to
comply with the cited section merely bars a labor organization from availing it-
self of the Board's machinery in a representation or unfair labor practice pro-
ceeding. However, that section does not make illegal, contracts with noncomply-
ing unions or outlaw strikes by such unions.95 Since the strikers were engaged
in protected concerted activity and retained their status as employees, Respondent
could not regard them as having "quit" or consider their employment relationship
as terminated. Consequently, while Respondent's tactical maneuver did not con-
stitute a discharge of the strikers, its advising them that the strike was "illegal"
and that they would be treated "as having quit their jobs" if they did not return
93 Majestic Manufacturing Co., 64 NLRB 950 ; Rockwood Stove Works, 63 NLRB 1297
Indiana Desk Co., 56 NLRB 76; and Myers Products Co., 84 NLRB 32.
94 N. L. R. B. v. Mackay Radio & Telegraph Co., 304 U. S. 333; N. L. R. B. v. Rem-
ington Rand, Inc., 130 F. 2d 919 (C. A. 2) ; and Draper Corp., 52 NLRB 1477.
95 Spencer Auto Electric, Inc., 73 NLRB 1416; and Firth Carpet Co. v. N. L. R. B., 129'
F. 2d 633 (C. A. 2).
66 N. L. R. B. v. Mackay Radio & Telegraph Co., supra.
°T Section 13 of the Act provides
Nothing in this Act, except as specifically provided for herein, shall he construed so as
to interfere with or impede or diminish in any way the right to strike . . . ( Emphasis
supplied.)
1584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the deadline date was coercive in effect and a violation of Section 8 (a) (1) of
the Act 98
Since it has been found that Dickson and Coleman were discriminatorily dis-
charged, the strike resulting from their discharge would be an unfair labor prac-
ticestrike and Respondent would have no right to permanently replace the strik=
ing employees.99 Respondent contends, however, that the strike is not an unfair
labor practice strike since even before the discharges the Union had intended to
call a strike in order to gain recognition and that the discharge of the three girls
was a mere "pretext" for the strike. In support of this position Respondent re-
fers to the testimony of a number of its employee witnesses who testified to state-
ments made to them during the house-to-house campaign by members of the
union organizing committee to the effect that there was going to be a strike for
recognition and that the cutting room hail already slowed clown pursuant to this
plan. Aside from the fact that the evidence does not disclose any actual slowdown
in the cutting room, and without discussing in detail the testimony of the various
witnesses who testified, the undersigned is convinced from the record as a whole
that any statements made by the members of the organizing committee were so
much "big talk" to induce employees to join the Union. Although it is possible
that the refusal of Respondent to recognize the Union might ultimately have led
to a strike for recognition, the evidence does not establish any preordained plan
on the part of the Union to go on strike. The evidence is clear that the employ-
ees, in voting to go on strike, did so in order to protest the discharge of the three.
employees. Even assuming, however, that recognition was a cause of the strike,
it is beyond question that the discharge of the three employees was at least one
of the causes 100 Under well-established principles, a strike caused in part by all
unfair labor practice does not lose its character as an unfair labor practice strike
because economic reasons may also have brought it about.101
Aside from whether the strike was an economic strike or an unfair labor
practice strike, Respondent argues that under numerous Board decisions an
unconditional application for reinstatement by the strikers is a sine qua non
to a finding of discrimination and an order of reinstatement.101 The General
Counsel contended at the hearing that the attitude displayed by Respondent
toward Matthews and the other individual applicants for reinstatement was
as In the Rockwood Stove case, supra, although the tactical maneuver by Respondent
was held not to constitute a discharge of the strikers, the Board held that it interfered
with, restrained, and coerced them in the exercise of the rights guaranteed by Section 7
in violation of Section 8 (1) of the Act. To the same effect see Roanoke Public Ware-
house, 72 NLRB 1281 ; Aldora Mills, 79 NLRB 1 ; American Manufacturing Concern, 7
NLRB 753.
00 See footnote No. 105.
100 Respondent calls attention to the fact that some of the signs carried by the pickets
carried the inscription, "Recognize our Union and we'll return." It also appears, how-
ever, that many of the signs carried the legend, "Return our three girls to work and we'll
return."
101 Julian Freirich Co., 86 NLRB 542 ; Brown Radio Service, 70 NLRB 476 ; N. L. R. B. V.
Remington Rand, Inc., 94 F. 2d 862, 872 (C. A. 2), cert. den. 304 U. S. 576; and N. L. R. B.
v. Stackpole Carbon Co., 105 F. 2d 167, 175, 176 (C. A. 3), cert. den. 308 U. S. 605. In
view of the conclusions above reached it is unnecessary to determine whether, as contended
by the General Counsel, Respondent's action in threatening to terminate the employment
relation of the strikers who failed to return by February 24, and in refusing to reinstate
Matthews, had the effect of prolonging the strike and thereby changed its character to an
unfair labor practice strike. Cf. Kansas Milling Co., 86 NLRB 925; N. L. R. B. V. Rem-
ington Rand, Inc. , 130 F. 2d 919, 928 (C. A. 2).
102 Outside of the seven or eight individual applications for reinstatement related above,
there was no general effort to obtain reinstatement until the mass applications of January
24, 1949.
HAPP BROTHERS COMPANY, INC. . 1585
such as to indicate a fixed determination not to reemploy any of the strikers,
thereby relieving the other strikers from making the futile gesture of applying
for reinstatement. Answering this argument, Respondent refers to the case of
E. A. Laboratories, Inc., SO NLRB 625 where the Board affirmed, without
comment, a holding by the Trial Examiner that-
. . . absent a request for reinstatement, anticipatory refusals to reinstate,
or even threats to discharge, strikers, while unfair labor practices, do not
relieve the employees of the obligation to request reinstatement unless the
circumstances indicate that the employer's actions constitute an actual
discharge. Horne Beneficial Life Ins. Co., 69 NLRB 32; Rockwood Stove
Works, 73 NLRB 1297.
In a number of decisions of the Bbarcl and the various Courts of Appeals,
the principle has been laid clown that where an employer by his conduct has
indicated that a request for reinstatement would not be favorably received, the
employees are relieved of the necessity of requesting reinstatement since they are
not required to make a futile gesture 103 As the undersigned reads these de-
cisions they do not necessarily require that the employer's conduct, in order to
relieve the employees of the necessity for requesting reinstatement, must be
tantamount to a discharge of the employees. While an actual discharge may
relieve a striker of the affirmative duty of requesting reinstatement, there may
be other conduct by the employer of similar effect. It mQy be observed, in this
connection, that the requirement that strikers request reinstatement is based
on the rationale that the employer cannot be considered to have discriminated
against the strikers until the latter have indicated their willingness to return
to work. The discrimination in such case is the refusal to reinstate the strikers
on application. However, the Board has always held that the discharge of an
employee is discriminatory, irrespective of a request for reinstatement. In the
latter type of case the discharge is the discrimination, not the refusal to reinstate.
It is the discharge which places the employer in default, not the refusal to
reinstate. The cases which hold that a striker may, under some circumstances,
be relieved of the need for making a futile gesture for reinstatement would
ordinarily be cases where there was no actual discharge (since this itself
would be an act of discrimination) but where, by conduct which may fall short
of an actual discharge, the employer may have given the employees the reasonable
impression that it was futile to apply for reinstatement, thereby transferring to
himself the affirmative burden of offering the employees reinstatement.
The cases cited in the E. A. Laboratories case in support of the proposition
that only an actual discharge may relieve strikers of the need for requesting
reinstatment are cases dealing with the so-called "tactical maneuver" doctrine.
However, these cases deal merely with the question of what conduct constitutes a
discharge. They do not determine under what circumstances the conduct of an
employer may relieve strikers of the requirement for. requesting reinstatement.
In the opinion of the undersigned the tactical maneuver doctrine does not neces-
sarily overrule other Board and court decisions laying down the broad rule that
strikers are relieved of the necessity for making a request for reinstatement
103 See Thompson Cabinet Co ., 11 NLRB 1106 , 1112 : United Dredging Co., 30 NLRB 739,
795; Nevada Consolidated Copper Corp ., 26 NLRB 1182 , 1208 ; Douglas Aircraft Co., 10
NLRB 248 , 281; Theurer ;Wagon Works , Inc., 18 NLRB 837, 859 ; Eagle-Picher Mining and
Smelting Co. v. N . L. R. B., 119 F. 2d 903 (C. A . 8) ; and N. L. R. B . v. Sunshine Mining
Co., 110 F. 2d 780 (C. A. 9).
903847-51-vol. 90-101
1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where the employer by his conduct has indicated that it would be futile to do so.
It is possible that the conduct of an employer in a particular case may be a tactical
maneuver , falling short of an actual discharge , and yet may have reasonably
indicated to the strikers the futility of requesting reinstatement , thus relieving
them of this obligation and requiring the employer to affirmatively show that he
was not serious when he indicated that requests for reinstatement would not be
favorably received.
The undersigned finds it unnecessary in this case to determine whether the
action of Respondent in refusing reemployment to a number of the strikers who
reapplied was in itself a constructive refusal to reinstate the other strikers,
thereby relieving them of the usual requirement for requesting reinstatement.
Even accepting the statement appearing in the Intermediate Report in the E. A.
Laboratories case as Board authority , the undersigned finds that Respondent's
conduct with respect to the strikers did in fact constitute an actual discharge,
thus relieving them of the requirement for making application for reinstatement.
While its action in refusing reinstatement to Matthews and the other individuals
who applied may not, by itself, have been sufficiently conclusive as to its inten-
tions with respect to the other strikers, there can be no mistaking its purpose
in sending the letter of March 15, 1948. By this letter the employees were
specifically informed that their "employment has been terminated as of this
date." The effect of this letter is not changed because of the fact that one of the
reasons for sending it was the alleged need of informing them of their rights
under the group insurance policy 104 Likewise, the fact that Respondent claimed
that the termination of employment resulted from the employees ' "replacement"
when "you and the others did not return to work," does not alter the legal effect
of Respondent's action. As previously stated, under Section 2 (3) of the Act
individuals engaged in a current labor dispute retain their status as employees.
Where the strike is caused by the, unfair labor practice of the employer he forfeits
his right to permanently replace the striking employees.'" By advising the
employees that they had been permanently replaced and that their "employment
has been terminated ," the Respondent in effect finally discharged the striking
employees and relieved them of the necessity of making further formal applica-
tion for reinstatement.100
As stated in Industrial Cotton Mills Company, Inc., 50 NLRB 855:
It is now well settled that strikers retain their status as employees dur-
ing . . . a strike, and that unfair labor practice strikers are entitled to their
jobs at the conclusion of the strike whether or- not their places have been
filled. While customarily application for reinstatement must be made by
strikers to indicate their availability for work, where the employer, as here,
finally discharges the strikers and bars their return to work, it thereby
effectively, indicates to them the- futility of applying for reinstatement.
104 It is clear from the evidence that the effect of the letter, insofar as it notified the
employees that their employment had been terminated, was also intended to apply to em-
ployees who did not receive it. Counsel for Respondent made a statement to this effect at
the hearing before the State of Georgia Unemployment Compensation Tribunal.
mR N. L. R. B. v. Remington Rand, Inc., 130 F. 2d 919, 927. (C. A. 2) ; Rapid Roller Co. v.
N. L. R. B., 126 F. 2d 452 (C. A. 7), cert. den. 317 U. S. 650; Black Diamond Steamship
Corp. v. N. L. R. B., 94 F. 2d 875, 879 (C. A. 2), cert. den. 304^U. S. 579; and Dalton Tele-
phone Co.; 82 NLRB 1001.
108 Respondent was not relieved of its duty to reinstate the strikers by the fact that it
may have in good faith believed it was not committing an unfair labor practice. See Rapid
Roller Co. v. N. L. R. B., 126 F. 2d 452, 460 (C. A. 7).
HAPP BROTHERS COMPANY, INC. 1587
Similarly, in N. L. R. B. v. Sunshine Mining Co., 110 F. 2d 780, 792 (C. A. 9) the
Court stated : "As the actual effect of Respondent's conduct was to discharge
these employees, the circumstances dispensed with the necessity of application
for reinstatement. N. L. R. B. v. Carlisle Lumber Co., 99 F. 2d 533." To the
same. effect see Gulf Public Service Co., 18 NLRB 562 enfd. 116 F. 2d 852
(C. A. 5) where the Board held that "by discharging them, the Respondent made
it useless for the strikers to apply for their jobs." '07
The fact that the employees were advised that if conditions improved or open-
ings arose they would be given "first consideration if you see fit to apply for your
jobs" does not relieve Respondent of the legal consequence of advising its
employees that their employment relation had been terminated. It is clear that
under the circumstances indicated in the letter the employees, if, as, and when
they were rehired, would be returning as new employees with loss of seniority
and all that that entailed.108 Moreover, where an employer has discriminated
against his employees either by discharging them or refusing to reinstate them,
he cannot shift to them the further duty of requesting reinstatement since the
employer must then assume the burden of disentangling himself from the legal
consequences of his unfair labor practice by offering them reinstatement or noti-
fying them when jobs are available.'0D Likewise, Respondent's action with
respect to those strikers who did apply belies any intention to reinstate any of
the strikers. When the letter of March 15 is read in the light of Respondent's
course of conduct prior and subsequent thereto, there becomes evident a fixed
determination on its part not to reinstate any of the persons who participated in
the strike.
The evidence discloses that after the February 24 deadline established in
Respondent's radio announcement, not a single person who was even remotely
suspected of being a striker was taken back by Respondent. When Matthews
applied on February 25, Respondent was willing to allow her to return to
work until someone mentioned that she had been seen on the picket line, and then
Respondent conveniently discovered that there wasn't enough work for her. The
other girl who applied at the same time, Avie Jones, a nonunion employee, was
permitted to return after Respondent was satisfied that she was. not a striker.
When Alice Bailey tried to return to work on the same morning she was told that
all those that were out Monday and Tuesday had been laid off. Asbell, who
sought to return on Thursday after the strike, was told, "you heard the announce-
ment over the radio and read the papers, didn't you?" Griggers who sought to
return to work on March 1 was refused reinstatement when Haisten said she had
been seen on the picket line, but Sue Martin and Mrs. Clifford Allen who satisfied
Bert Michael..that they had been sick and were not on the picket line were
allowed to return. Atkinson, who came back to check on her status after she
failed to receive a letter on March 15, was told that she had been fired with the
others when she failed to return. When Harrel sought to return around March
20 he was told that his job had been filled. Thomas who also applied in the end
of March, was told that there wasn't enough work for him, although the evidence
for See also N. L. R. B . v. Cowell Portland Cement Co ., 148 F. 2d 237 ( C. A. 9) ; Register
Publishing Co., 44 NLRB 848; and Morristown Knitting Co., 80 NLRB 731.
108 Atkinson testified credibly that when she applied around March 20, Bert Michael told
her that if he needed her he would call her back but that she would come as a new opera-
tor and would lose her seniority.
309 Eagle-Picher Mining and Smelting Co., supra; Berkshire Knitting Mills, 17 NLRB.
239, 287; and N. L. R. B. v. Remington Rand, Inc ., 94 F. 2d 862 , 872 (C. A. 2 ), cert.. den:.
304 U. S. 576.
1 egg DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shows that a topper presser was thereafter hired to do work Thomas was Capa-
ble of doing and the latter was not even given an opportunity to qualify for the
job. Austin was i"efused reinstatement allegedly because there was no opening
for her, but later when an opening did develop she was conveniently "over-
looked,".' and still later when another vacancy developed, it was fortuitously
discovered that she was pregnant, although no inquiry was made as to whether
she would be willing to come back.
Although Bert Michael asserted that none of the strikers who applied for work
were rejected, he failed to cite. a single case of a striker who applied after the
February 24 deadline and was reinstated, with the exception of Matthews who
was finally reinstated in October 1.943 after the charge in this proceeding had
been filed. Each of the strikers who applied was told that she had failed to
obey the company rule about calling in, or that her. job had been filled, or that
there wasn't enough work, etc. The only evidence of employees being rehired
after February 24 is that of Jones, Martin, and Allen who were able to prove
that they had not been on strike. Also, Katie Crumbley, who quit about a week
and a half before the strike, was taken back when she applied about a month
after the strike started, despite the fact that she had been one of the most de-
ficient line banders. Crumbley, it will be recalled, had convinced Respondent
of her anti-union attitude at the time of her argument with Coleman which
resulted in their being brought to Michael's office in December 1947.
Several employees who worked during the strike testified to statements made
by Respondent's officials during the strike indicative of its intention not to re-
hire any of the strikers. Cromer, a member of the Union who waited outside
the plant for several hours on the morning of the strike and later came into the
plant when her sister came out to get her, testified without contradiction that
James called the girls together on the day of the strike and said there would be no
hard feeling toward the girls who had joined the Union and returned to work,
but that those who remained out after the deadline "would lose their. jobs."
•Addie Marchant, another union member who remained out on the morning of the
strike but returned when one of the employees came out to get her, testified that
early in March when Morris Michael, Jr., returned from a trip to New York, he
made a statement to the employees in which he stated that he didn't want any
of the strikers back, that he was proud of those who had stayed with the Com-
pany, and that he would close. the plant before he would have a union. Michael
denied making such a statement and his testimony was corroborated by a num-
her of employees who heard him make a short talk upon his return from his New
York trip. Marchant was an indifferent witness and her testimony was not
otherwise corroborated. The undersigned does not credit her testimony in this
respect.
Irrespective of the statements made to various employees, Respondent by its
conduct demonstrated an inflexible determination not to rehire any striker or.
employee suspected of being a striker who failed to return by February 24. The
undersigned is convinced that the letter of March 15 was itself merely -a device
to finally bar any possibility of further union renascence in the plnt. It is
apparent that by March 15 both the strikers and Respondent were aware that
the strike was lost. Having definitely broken the backbone of the union effort,
Respondent apparently resolved that it would precludedny possibility of union
strength being revived in the plant and accordingly he advised the strikers that
their employment had been terminated. Although Respondent endeavored to
give its discharge of the strikers an overtone of reasonableness by informing
them that it was the replacements and the lack of business that required it to
HAPP BROTHERS COMPANY, INC. 1589.
notify them that it had all the help it then needed and that it did not anticipate
it could "now reemploy you," the undersigned is convinced that this was not the
reason. Respondent's own records show that after March 15 there was no ces-
sation or lessening in its recruitment of new employees. Between March 15
and the end of the month it hired 16 additional employees. During the month.
of April it hired 28 new employees, and during the month of May it hired 21
new employees. Its records disclose that between March 15 and the date of the
hearing Respondent hired upwards of 250 new employees. During this entire
period the only striker who was ever recalled was Myrtle Matthews.
The evidence as a whole unmistakably supports the conclusion that Respond-
ent was resolved riot to reemploy any of the strikers who failed to report back
to work by February 24 and that this resolve finally culminated in its taking
affirmative action on March 15 to discharge the remaining employees. By this
action and by its action in refusing to reinstate individual strikers who reapplied,
Respondent relieved the remaining strikers of any further need to request rein-
statement, and their failure to take such action until the mass letters of Janu-
ary 1949 cannot prejudice their position. The undersigned finds and concludes
that, except for those strikers who were previously discharged upon their apply-
ing for reinstatement, the remaining strikers were discharged on March 15, 1948,
in violation of Section 8 (a) (1) and (3) of tire Act."'
F. The discharge of Emma Lee Bentley"'
Burnley was first employed by Respondent in 1925 and worked there at various
intervals thereafter. She last returned to Respondent's employ in July 1945 and
worked as a pocket operator in Department C until July 1948 when she took a
leave of absence. Brumley was a member of the Garment Workers Union and
after the disintegration of that union joined the Construction Workers Union
on February 15, 1948. She did; not, however, join the strike but continued to
work until July 1948.
The evidence discloses that there was a certain amount of ill feeling between
Burnley and the forelady of Department C, Leona Adkins. According to Burnley,
Adkins resented her being a union member. The latter, however, denied this
and claimed that any friction which existed was due to Burnley's bad work and
that the latter resented Adkins' calling her attention to it. In the fall of 1947,
Adkins took Burnley to task for having used the wrong colored thread on certain
work and reported the incident to Superintendent James, who called the two
women to his. office. Burnley told James that Adkins had been picking on her
over her work and said that she couldn't understand "why she got it in for' me,
unless it was because I was a member of the Union." " Adkins denied having
anything against Burnley and Superintendent James finally told Burnley to go
back to work, cautioning Adkins "to leave the girl alone" and that if she did any
bad work to bring her down and lie would talk to her. 112 After the strike started,.
Adkins carne over to Burnley's machine and, according to the latter's credible
testimony, said to her, "Emily, did you sign one of those cards?" When Burn-
ley replied in the affirmative, Adkins said to her, according to Burnley :
10 This conclusion does not apply to Virginia Stapleton as to whom the undersigned had
already recommended that the complaint be dismissed.
I" Burnley testified under her married name, Holt.
112 The, above findings are based upon a synthesis of the testimony of Burnley , Adkins,
and James; which was substantially in accord , except that Adkins denied the Uniop was
mentioned.
1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .
Well, if they send up here for you, you can go down if you want to, but if
you don't want to go down, you don't have to . You can go in and out through
the office. You needn't be afraid what anybody will do to you on the outside..1
According to Burnley, Adkins started "picking on her" again about her work
after the strike started and she went to James' office to complain. She told him
that Adkins was continuing to "pick on me" and told James that she would quit
if Adkins didn't leave her alone. According to Burnley, James sent for Adkins
and asked her what it was all about. Adkins told him that Burnley refused to
listen to her when she talked to Burnley about her work. James told Adkins
not to bother Burnley any further, to which Adkins assented, and James told
the latter to go back to work.14
Sometime after the first incident with Adkins, related above, Burnley filed an
application for a position as a seamstress in the clothing repair department at
Robbins Field, an Army Air Depot near Macon. She apparently gave Respondent
as a reference since in April 1948, the Respondent received an inquiry about
Burnley from the Robbins Field authorities. Bert Michael called her to the office
and told her he had received an inquiry about her from Robbins Field. He asked
her if she was dissatisfied with her work and she told him that she was not
dissatisfied with the work but with the way Adkins acted toward her. According
to Burnley, she told Michael, "I'd rather not work any place that anybody feels
about me like she feels about me.", Michael then asked her, "Well, what are you
going to do until you hear from them? Are you going to continue to work on
i here, dissatisfied?" Burnley said she would continue to work if he wanted her to
and Michael replied, "all right." He also asked her if she wanted him to fill out
the reference inquiry and she told him she would appreciate it if he would.1'
In July 1948, Burnley had to stay home from work to take care of her young
daughter who had trouble with infected feet. She asked her sister, Martha
Lindsey, who was also employed by the Respondent, to tell Forelady Adkins that
she had to stay out because of her daughter's condition. According to Burnley,
she also telephoned Superintendent James the following week and told him that
she wouldn't be able to come back until her daughter was better. According to
Burnley, James told her, "0. K., I'll tell Mrs. Adkins." Several weeks later,
Adkins asked Burnley's sister, Lindsey, if Burnley had quit and Lindsey told her,
"Not that I know of." ne
Burnley attempted to return to work on September 8, 1948, but was sent to
Superintendent James' office.. James told her that he thought she had quit
since she had been out so long and that he couldn't use her right then as a number
of girls had been hired while she was out. However, he told her to leave her
phone number and that he would call her if he needed her. Burnley protested
to no avail that if she had quit, she wouldn't have sent him word that she was
taking leave of absence. Later that day, she telephoned Morris Michael, Jr.,
and asked if anyone had been put on her machine. He told her he would look
113 Adkins denied asking Burnley whether she had signed a card, but did not deny the
balance of the conversation. Adkins' denial is not credited.
114 Neither James nor Adkins controverted Burnley's testimony and the undersigned finds
that this Incident occurred substantially as she testified.
111, Burnley 's version of this incident was not substantially contradicted by Bert Michael,
James, or Adkins, who were present and her testimony is credited.
110 There was no substantial controversy as to Burnley's taking a leave of absence , except
that according to James she told him she wanted to take several weeks leave In order to
get married . Burnley admitted that she got married during this period , but denied that
she said anything to James about It. The undersigned finds it unnecessary to determine
which reason Burnley gave for taking leave.
HAPP BROTHERS COMPANY, INC. 1591
into the matter and let her know. Several hours later, Bert Michael called
back and told her he had looked into the matter and understood she "didn't
do good work."
Respondent gave the following explanation for its refusal to take back Burn-
ley. Superintendent James testified that when Burnley didn 't return, he thought
she had gone to work at Robbins Field , pursuant to her earlier application there.
At the time she returned in September , he didn't have any place for her but intend-
ed to send for her. However , within a short time after Burnley left his office,
Adkins came to him and told him Patricia Hensley had just reported to her that
as Burnley was leaving the plant she had made a remark to Hensley to the
effect that ( referring to Adkins ) "she hoped the old white -headed bitch was
happy" as she had finally gotten Burnley fired . According to James and Adkins,
the latter told James that she would not work with Burnley because of this
remark and asked him not to call Burnley back , to which James assented.
The testimony as to whether Burnley did make this remark was somewhat
confused . Burnley denied calling Adkins a "white-headed old bitch " but admitted
saying to Hensley, "I guess that old lady did what she wanted to ; she fired me."
Hensley, who is still employed by Respondent , corroborated Adkins' testimony
that Burnley had make the remark calling Adkins an uncomplimentary name.
However, Respondent 's counsel asked her on redirect exani,ination, "Did you
advise anyone of what she [Burnley] had said ; did you or not advise anyone-
Mrs. Adkins ;. Mr. James, anyone ?" to which Hensley replied , "No." She was then
asked, "did anyone later ask you about whether or not she had said anything to
you?" and Hensley replied , "not until lately-last week or so." Hensley was
excused at the conclusion of her testimony and another witness called . After the
other witness had finished her testimony , Hensley was recalled and gave the fol-
lowing testimony :
Q. (By Mr. SNOW .) Mrs. Hensley , since you testified about 15 or 20 or
possibly 30 minutes ago , have you or not had a conversation with me?
A. Yes, sir.
Q. Mrs. Hensley, tell the Court whether or not you understood my ques-
tion when I asked you on the stand previously whether you had communicated
with anyone the remark which Mrs. Burnley made to understand whether I
was just referring to officers of the Company or whether I was referring to
even your forelady?
A. I misunderstood your question.
Q. Whom did you think I was referring to when I asked if you communi-
cated with anyone?
A. The officers of the Company.
Q. Tell us whether or not you have repeated it to anyone.
A. Yes, sir, I told my forelady.
Q. When did you tell her?
A. Immediately.
From Hensley 's previous testimony , it is obvious that her attention was specifi-
cally directed to whether she repeated the remark to Adkins and that the inquiry
was not limited to an officer of the Company . The undersigned found Hensley a
generally unreliable witness and does not credit her testimony.
Respondent also urged as an apparently auxiliary reason for not rehiring Burn-
ley that she did not do good work . It may be noted that this position was incon-
sistent with James' testimony that the reason it was decided not to take her back
was because "I just couldn ' t pass such remarks." It should also be noted that
1592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the record of production deficiencies which were introduced in evidence fail to
disclose that Burnley was deficient in a single week. Is seems difficult to imagine,
if her work was of such bad quality, that the necessity of repairing it would not
have adversely affected her production record.
Although the facts surrounding Respondent's refusal to rehire Burnley are
suspicious, indeed, the undersigned is not persuaded that the General Counsel
has sustained the burden of proving that the reason for Burnley's discharge was
her union activity. Although the evidence discloses that Burnley had been a
union member, and that Respondent was aware of this fact, her union activity was
not particularly marked and in fact she failed to join the strike in which most
of the other members participated. The evidence discloses a. history of bad per-
sonal relations with her forelady ; "' that as a result of her dissatisfaction, Burnley
had applied for a position elsewhere, of which fact Respondent was aware ; and
that she had recently been absent for a considerable period of time, under cir-
cumstances which suggested that she might have quit 118 Under these circum-
stances, Respondent might properly have concluded during her absence that she
had decided not to return, and when she did return, have determined that in view
of her general dissatisfaction with conditions it would not be advisable to take
her back. It is true that the reasons Respondent gave were confused and con-
flicting but on the record as a whole, the undersigned is not persuaded that there
has been and adequate showing of anti-union motivation in Respondent's
refusal to take back Burnley.1' It will, therefore, be recommended that the
complaint be dismissed insofar as it alleges the discriminatory discharge and
refusal to reinstate Burnley. However, the undersigned finds and concludes
that by interrogating Burnley as to whether she had signed a union card, Respond-
ent interfered with, restrained, and coerced her in the exercise of the rights
guaranteed by Section 7 of the Act and thereby violated Section S (a) (1)
thereof.12'
G. The Shop Connnittee
The genesis of the Shop Committee was the speech which Morris Michael, Jr.
made to the employees on November 21, 1947, at the time of the expiration of
the contract with the United Garment Workers Union which he refused to
renew'' The employees were told :
If you want a shop committee to deal with Mr. James, my brother and me
in ironing out difficulties and improving working conditions that is fine. We
will be glad to work with any shop committee chosen by you.
On Tuesday, November 25, Bert Michael and Superintendent James went around
to the various departments with ballot boxes and handed out ballots to the em-
ployees. The employees were told that two. delegates to the Shop Committee
would be elected from each department and were asked to write on the ballot the
117 In the opinion of the undersigned,, the evidence is insufficient to establish that Burn-
ley's union membership was at the bottom of this ill feeling.
118 The undersigned is convinced that her absence was not entirely due to the illness of
her child and that her assumption of new marital duties was a contributing factor.
119 It is significant that when Burnley threatened to quit sometime after the strike started
because Adkins was "picking" on her, James, despite his knowledge that she had been a
union member , asked her to stay.
129 Standard - Coosa-Thatcher Company, supra.
121 There is some reference in the testimony to an earlier Shop Committee before the con-
tract with the Garment Workers. However, there is little evidence regarding the origin
and functioning of the earlier Committee and since it is not in issue in this proceedng it is
unnecessary to make any findings regarding it.
HAPP BROTHERS 'COMPANY INC'. 1593
names of two employees they wanted elected.'2' The ballots were then counted in
the presence of James and Michael.
The elected representatives from each department met the following day in
the dining room of the company premises together with the heads of each de-
partment and Bert Michael. Michael told the employee representatives that
they could bring up at the meetings grievances submitted to them by employees.
These, meetings were held each Wednesday afternoon thereafter from 3: 30 to
4: 30 p. M. The employee representatives were paid for the time spent at the
meetings and, when the meetings went beyond 4: 30, the employees were paid
overtime. Among the grievances handled at these meetings were such matters
as whether certain material should receive the higher rate payable for work
on sharkskin, what rate should be paid for work on boys' short pants, and
whether a shade should be put over a certain window. Bert Michael would
usually inform the employee representatives that he would discuss the matter
with his brother and inform the Committee of the decision at the next meeting.
Kate Kemp, secretary to James and Michael took notes of what transpired
at the meetings and typed them up in a notebook which was kept in her custody.
The Shop Committee never met without Bert Michael and the other supervisors
being present. No dues were paid by employees to the Committee. Although
having no apparent source of income, a Christmas party was held in December
1947 under the Committee's sponsorship but no fee was charged for attending the
party:
In October 1948, after being advised by a Board Field Examiner that its
support of the Shop Committee was illegal. Respondent posted a notice on the
plant bulletin board in which it advised employees that it would not "in the
future permit any election to be held on company property or company time
and we will have no further meetings with the Shop Committee." There is na
evidence of further meetings by the Shop Committee after the posting of this
notice.
It seems evident that the Shop Committee was a labor organization since it
was a committee in which employees participated and it existed for the pur-
pose of dealing with the employer concerning grievances, rates of pay, and con-
ditions of work.13 It is also clear, and the undersigned so finds, that by sug-
gesting and encouraging the formation of the Committee, which the undersigned
finds was done for the purpose of discouraging membership in the United Gar-
ment Workers of some other independent labor 'organization ; by -participation
of its supervisory officials in the election and formation of the Committee; by
the presence of management representatives at the meetings ; by permitting the
122 Some of Respondent's witnesses claimed that before the actual voting for representa-
tives on the Committee the employees in each department voted on the question of whether
the3A wanted a Committee. This testimony was confused and contradictory and is not
credited. For example, Lillian Davis of Department D testified that a few days before
the election James came in and asked the employees if they wanted a Committee. Ophelia
Britt from the same department testified that they were "told" by James to select a Com-
mittee. Hensley testified that no vote was taken by the employees on whether they wanted
a Committee but that they merely voted for representatives. Wylene Lowery first testified
that only one vote was taken and that was at the time James brought in the ballots. She
later modified this and claimed the employees previously had voted that they wanted a
Committee. The undersigned is satisfied that there was only one vote and that this took
place when James and Michael brought the ballots in and told the employees to vote.
12+N. L. R. B. v. Jas. H. Matthews d. Co., 156 F. 2d 706 (C. A. 3) ; N. I.. R. B. v. Ameri-
can Furnace Co., 158 F. 2d 376 (C. A. 7) ; J. W. Greer, 15 NLRB 341; and Wrought Iron
Range Co ., 77 NLRB 487.
1594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Committee to meet on company premises during working hours and by paying
the members for such time ; and by supporting the social functions of the Com-
mittee which had no other visible means of support since it charged no dues,
all as more fully related above, the Respondent has dominated and interfered
with the formation and administration of a labor organization and contributed
financial or other support to it, in violation of Section 8 (a) (1) and (2) of
the Act, thereby interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 thereof 121
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in Section III, above, occurring in con-
nection with the operations of Respondent set forth in Section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
v. THE REMEDY
Having found that Respondent had engaged in certain unfair labor practices,
the undersigned will recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
The undersigned has found that Respondent discharged Gladys Dickson and.
Gertha Coleman on February 20, 1948, because of their union membership and
activities and their efforts to organize Respondent's employees ; that on Febru-.
ary 25, 26, and. March 1, respectively, it discharged and refused reinstatement
to Myrtle Matthews, Mary J. Asbell, and Catherine Griggers because they had
engaged in, or were believed to have engaged in a strike with other employees,
caused by the aforesaid discharge of Coleman and Dickson ; and that on March
15, 1948, Respondent discharged the other strikers named in the complaint,
except Virginia Stapleton, because they participated in or were believed to have
participated in, the aforesaid strike.12'
It will therefore be recommended that Respondent offer immediate and full
reinstatement to their former or substantially equivalent positions,126 without
prejudice to their seniority or other rights and privileges, to all of the aforesaid
employees whom it has thus discharged or refused reinstatement, as set forth in
Appendix C hereof, except Daisy Elrod, Ida Whatley, Maude Thompson, and
Myrtle Matthews. It will not be recommended that Respondent offer reinstate-
ment to Elrod and Whatley because they testified that they decided not to return
to Respondent's employ after October 1, 1948, when they secured employment
elsewhere. It will not be recommended that Respondent offer reinstatement to
Maude Thompson because, according to the uncontradicted and credited testi-
mony of. Bert Michael, she accepted an offer of reinstatement after the mass,
1'24 Berkshire Knitting Mills v. N. L. R. B., 139 F. 2d 134 ( C. A. 3) ; American Enka
Corp. v. N. L. R . B., 119 F. 2d 60 ( C. A. 4) ; Maddix Asphalt Roofing Corp., 85 NLRB 26;.
Fogel Refrigeration Co., 82 NLRB 150; Pacific Moulded Products Co., 76 NLRB 1140;
Newman Machine Co., 74 NLRB 220 ; and Reynolds . Co., 61 NLRB 1146.
1'6 It was stipulated that the remaining employees listed in Schedule A of the com-
plaint would testify, if called, that they participated in the strike beginning February 23,
1948. The undersigned finds that all of such employees, except Virginia Stapleton, par-
ticipated in said strike.
126 The Chase National Bank of the . City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
' HAPP BROTHERS COMPANY, 'INC. 1595
applications of January 24, 1949.127 Since Matthews was reinstated on or about
October 10, 1948, it is not necessary to recommend reinstatement in her case.
Had Respondent not discharged the remaining strikers on March 15, 1948,
their back pay would have commenced from the date when they: applied for
work. However, by discharging them, Respondent made it useless for them to
apply thereafter. Respondent claims that irrespective of the action which it
took with respect to the strikers, they would not have returned to work in any
event until Dickson, Coleman, and Yarbrough were reinstated. Respondent calls
attention to the testimony by some of the strikers that they were still insisting
on the return of the three original discharged employees until the picket line
broke up in June. However, the undersigned is not convinced that the discharge
of the strikers themselves did not affect the decision to continue the strike. The
preponderant weight of the testimony is that after the refusal to reinstate
Matthews and after the March 15 letter most of the strikers were protesting their
own discharges. Even on this basis, the strike was in a moribund state as the
picket line'dwindled and finally disappeared in June. Actually, it is impossible
to ascertain when the strikers would have abandoned the strike and returned
to work in the absence of Respondent's action in discharging them. Since; the
uncertainty was caused by Respondent's illegal act in discharging the strikers,
the undersigned will indulge in no presumption as to how long the strike might
otherwise have lasted. Under the circumstances here present, Respondent :had
the burden of disentangling itself from the legal consequences of its illegal action
and had the affirmative burden of offering the strikers reinstatement., No penalty
should be visited on the strikers for their failure to request reinstatement,'in
the absence of clear and convincing evidence (which is not here present) that,
irrespective of their discharge, they would not have returned to work until the
cause of the strike was settled 128 The undersigned will therefore recommend
that Respondent make whole the employees against whom it discriminated, as
listed in Appendix C hereof, by payment to each of them of a sum of money
equivalent to that which he would have earned as wages, from the date of the
discrimination against him,129 to the date upon which Respondent offers him
reinstatement, less his net earnings during such period,130 except that in the
case of Daisy Elrod and Ida Whatley, the terminal date of payment shall be
the date when they abandoned any desire to return to Respondent's employ ; in
the case of Maude Thompson and Myrtle Matthews the terminal date shall be
the date when they were reinstated by the Respondent.131
Since it has not been found that Respondent discriminatorily discharged or
refused reinstatement to Virginia Stapleton and Emma Lee Burnley, it will
"'Michael also testified that an offer of reinstatement was made to George Stapleton
but that the latter told him he would have to give his present employer a week's notice.
Michael was unwilling to allow Stapleton a week before returning because lie "couldn't
wait that long." The undersigned finds that Stapleton's request that he be allowed to
give his present employer a week's notice was reasonable and did not constitute a refusal
to accept reinstatement.
128 See Gulf Public Service Co., 18 NLRB 562, 586, enfd. 116 F. 2d 852 (C. A. 5) ;
Eagle Picker Mining d Smelting Co., 119 F. 2d 903 (C. A. 8), enfg. 16 NLRB 727 ; Shell-
barger Grain Products Co., 8 NLRB 336; and Acme-Evans Co., 24 NLRB 71.
121 The dates of discrimination are : February 20, 1948, for Gertha Coleman and Gladys
Dickson ; February 25, 1948, for Myrtle Matthews ; February 26, 1948, for Mary J. Asbell ;
March 1 1948 , for Catharine Griggers ; and March 15, 1948, for the remaining strikers
named in the complaint , except Virginia Stapleton.
130 See Crossett Lumber Company , 8 NLRB 440, 492-8.
131,The ' terminal'date in the case of Elrod and Whatley shall be October 1, 1948. There
is some uncertainty as to the exact date Thompson and Matthews were reinstated. This
matter can be determined in compliance proceedings if the parties are unable to reach
agreement on the matter.
1596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tie recommended that the complaint be dismissed as to them. It will further
he recommended that the complaint be dismissed as to certain of the allegations
of interference, restraint, and coercion which it has heretofore been found were
hot established by .the evidence.
It has been found that Respondent has interfered with, restrained, and coerced
its employees by: (1) Interrogating employees concerning their union affiliation
and activities; (2) threatening or purporting to discharge employees involved
in union or concerted activity; (3) warning that Negroes would be hired if a
union came in;"' (4) stating that there would be no union in the plant; and
(5) offering the employees a wage increase to discourage union activity. It
will therefore be recommended that Respondent cease and desist from such
activities and take certain affirmative action designed to effectuate the policies
of the Act.
It has further been found that Respondent has dominated and interfered with
the formation and administration of the Shop Committee and has contributed
to its support. The fact that the record does not disclose any evidence of recog-
nition of the Committee after the notice which Respondent posted on October 18,
1948, does not preclude recommendation of an order that Respondent cease and
desist from dominating."and interfering with any labor organization since
Respondent's past conduct indicates the possibility of repetition of unlawful
acts in the future."' The undersigned will therefore recommend that Respondent
cease and desist from dominating or interfering with the formation or admin-
istration of any labor organization or contributing financial or other support
thereto. However, 'in view of Respondent's public announcement that it will
no longer meet with or recognize the Shop Committee, the undersigned will not
recommend that Respondent take any further action to disestablish it."'
Because of its widespread hostility to the efforts of its employees to organize,
as demonstrated by this record, indicating a determination to interfere generally
with the rights of employees as guaranteed by the Act, the undersigned will
recommend that Respondent desist from the conduct found to be illegal and
from in any other manner interfering with, restraining, or coercing its employees
in the exercise of the rights guaranteed by Section 7 of the Act.
Upon the basis of the above findings of fact and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Amalgamated Clothing Workers of America, affiliated with the Congress of
Industrial Organizations: United Garment Workers of America, affiliated with
American Federation of Labor ; Local 223 of the United Construction Workers,
affiliated with United Mine Workers of America ; and the Shop Committee, un-
affiliated, are labor organizations .vithin the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of the
employees listed in Appendix C hereof, thereby discouraging membership in a
labor organization, the Respondent has engaged in and is engaging in unfair labor
practices, within the meaning of Section 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, the Respondent has engaged in
112 There is no specific allegation to this effect in the complaint although. there is a gen-
eral allegation of threatening and warning employees against joining a union. - However,
the testimony on this issue was not objected to and Respondent fully litigated the matter.
13' See Fogel Refrigeration Co., 82 NLRB 1302.
134 See Raybestos Manhattan Co., 80 NLRB 1208.
. HAPP BROTHERS COMPANY, INC. 1597
and is engaging in unfair labor practices within the meaning of Section.8 (a)
(1) of the Act.
4. By dominating and interfering with the-formation and administration of, the
Shop Committee and contributing to its support, the Respondent has engaged in
and is eingaging in unfair labor practices within the meaning of Section 8 (a) (2)
of the Act.
-5. :Respondent has not engaged in the following unfair labor practices:
. (a) Discharging Virginia Stapleton or Emma Lee Burnley because of their
union membership or activity.
(b) Maintaining surveillance over union meetings.
(c) Discrimination against union employees with regard to overtime, type of
work, or assistance and instruction.
(d) Stating that,the plant would be closed down before allowing a union=to
come in.
6. Respondent 's conduct in stating to certain of its employees that if it could
talk to each employee in a soundproof room they would never want to hear of
another union is not an unfair labor practice. -
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the Respondent, Happ Brothers Company, Inc., its of-
ficers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in-any labor organization of its employees, by
discriminatorily discharging or refusing to reinstate any of its employees, or
in any other manner discriminating in regard to their hire or tenure of employ-
ment ;
(b) Interfering with, restraining, or coercing its employees by (1) interrogat-
ing employees concerning their union affiliation and activities, (2) threatening or
purporting to discharge employees because of engagement in union or concerted
activity, (3) appealing to racial prejudice for the purpose of discouraging its
employees from joining or remaining members of a labor. organization, (4)
"stating that there would be no union in its plant, and (5) offering employees a
wage increase for the purpose of discouraging union activity ;
(c) Dominating and interfering with the formation and administration of any
labor organization, or contributing financial or other support to the Shop Com-
mittee or any other labor organization ;
(d) Recognizing the Shop Committee as the exclusive bargaining representative
of our employees for the purposes of collective bargaining unless and until 'it
shall have been certified by the Board as the representative of our employees.;.
and
(e) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form labor organ-
izations,.to join or assist any 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, or tore=
frain 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, as guar-
anteed in Section 7 thereof.,
1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,, 2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to the employees listed in Appendix C, except Daisy Elrod, Ida
Whatley, Maude Thompson , and Myrtle Matthews , immediate and full rein-
statement to their former or substantially equivalent positions , ewithout
prejudice to their seniority or other rights and privileges ;
(b) Make whole all the employees listed in Appendix C for any loss of pay
they may have suffered by reason of the Respondent's discrimination against
them in the manner provided in the section entitled "The Remedy" ;
(c) Post at its plant at Macon ; Georgia, copies of the notice attached hereto
and marked Appendix C. Copies of said notice, to be furnished by the Regional
Director for the Tenth Region, shall, after being duly signed by the Respondent's
representative, be 'posted by the Respondent immediately upon receipt thereof
and maintained by it for sixty (60) consecutive clays thereafter, in conspicuous
places;' including all places where notices to employees are customarily posted..
Reasonable steps shall be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material ; and
(d) Notify the Regional Director for the Tenth Region in writing within
twenty (20) days from the date of the receipt of this Intermediate Report
and Recommended Order of the steps the Respondent has taken to comply
therewith.
It is further recommended that, unless the Respondent shall within twenty
(20) days from the receipt of this Intermediate Report and Recommended
Order notify said Regional Director in writing that it will comply with the fore-
going recommendations, the National Labor Relations Board issue an order re-
quiring Respondent to take the action aforesaid.
It is further recommended that the complaint be dismissed insofar as it alleges
that Respondent discriminated with regard to the hire and tenure of employment
of Emma Lee Burnley and Virginia Stapleton ; and insofar as it alleges that
Respondent interfered , with, restrained , and coerced its employees by maintain-
ing surveillance over, union activities , by discriminating against union employees
with regard to overtime , type of work , or assistance and instruction , by stating
that the plant would be closed down before allowing a union to come in, and by
stating that if it could talk to , each employee in a soundproof room they would
never want to hear of another union.
..As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board 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 and Recommended Order or to any other part of the
record , or ,proceeding ( including rulings upon all motions or objections) as he
relies .upon , together with the original and six copies of a brief in support thereof ;
and any party may, within the same period , file an original and six copies of a
brief in " support of the Intermediate Report and Recommended Order. Imme-
diately upon the filing of such statement of exceptions and/or briefs , the party
tiling the same shall serve a copy thereof upon each of the other parties . State-
ments 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 further provided in said Section 203.46 should any party desire per-
- HAPPI %BROT$ERS COMPANY, 'INC. 1599
mission to argue' orally before the Board, request therefor must be made in writ-
ing to the Board within ten (10) days from the date of service.,of the order trans-
ferring 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, 7th day of December 1949.
JoHN. LEwIS,
Trial Examiner.
APPENDIX A
SUMMARY OF DEFICIENCIES' (BANDING OPERATORS-DEPARTMENT A)
Week ending- Total numberof operators
Total number
deficient
Percent of opera-
tors deficient
Average size of
deflciency (by
percent)
7/25/47--------------- 40 19 47.5 47.2
8/1/47---------------- 44 .23 52.3 41.5
8/8/47---------------- 49 28 57.1 54.9
8/15/47--------------- 49 25 51.0 42.1
8/22/47---------------
.
50 30 60.0 27.8
8/29/47--------------- 46 30 65.2 23. 7
9/5/47---------------- 46 29 63.0 30.1
9/12/47--------------- 50 32 64.0 36.0
9/19/47--------------- 50 30 60.0 25.7
9/26/47--------------- 50 26 52.0 18. 5
10/3/47--------------- 48 37 ' 77.1 36.0
10/10/47-------------- 47 38 80.9 36:0
10/17/47-------------- 47 37 78.7 34.6
10/24/47-------------- 47 36 76.6 34.7
10/31/47-------------- . 46 39 84.8 31.2
11/7/47--------------- 48 36 75.0 31.8
11/14/17-------------- 50 41 82.0 34.2
11/21/47-------------- 50 35 70.0 35.0
11/28/47-------------- 51 32 62.7 37.4
12/5/47--------------- 50 26 52.0 31.8
12/12/47-------------- 44 , 27 61.4 37.2
12/19/47-------------- 46 28 60. 1 41.2
1/2/48---------------- 43 28 65:1 36.8
1/9/48---------------- 43 22 51.2 33.9
1/16/48--------------- 46 18 ' 39.1 45.8
1/23/48--------------- 44- 22 50.0 27.8
1/30/48--------------- 45 24 -53.3 . 33.2
2/6/48---------------- 44 22 50.0 29.6
2/13/48--------------- 42 14 33.3 33.7
2/20/48--------------- 42 18 42.9 26.5
Total- ------ ----------- ------------ 61.0 - 34.3
APPENDIX B
DEFICIENCY PAYMENTS AS PERCENTAGE OF WEEKLY PAY, SELECTED EMPLOYEES , HAPP BROS . Co., 10/3/47 To 2/20/48
Week ending - Defl-
DencyDate of
employ- average10/3/47
10/3 10/10 10/17 10/24 10/31 11/7 11/14 11/21 11/28 12/5 12/12 12/19 1/2 1/9 1/16 1/23 1/30 2/6 2/13 2/20
ment
to
2,120/48
Mary L. Durden '__________ 78.0 75.3 77.3 75. 0 80.6 77 . 6 78.2 73 . 4 86.0 75.0 74 , 5 87.0 76 . 4 80.0 75.9 OUT OUT OUT OUT OUT 8/11/47 78.0
Suzie Frazier'_ ______________ ______ ______ ______ ______ ______ ______ ______ ______ 84.5 78 . 3 73.1 69 . 6 57.0 65 . 8 64.5 63.5 68.0 57.3 OUT 61. 2 11/24/47 67.5
Hilda Kitchens '_____________ 67.1 62 . 4 68.0 71.0 73.2- 65.3 68 . 4- 65.1 66. 4 69.3 73 .7 67.2 67. 6 67.3 57 . 1 41.1 63 .3 OUT _ 65.5
Eloise Cromer •______________ _ ____ ______ ____ ____ __ 74.1 79.2 OUT 79. 5 81.4 76 . 3 71.7 63 . 5 48.1 59°2 51 . 9 45.0 35 . 4 27.7 1/11/47 61.0
Katie Crumbley____________ ______ ____ ______ 82.6 66 . 5 65.0 49.7 45.7 42. 5 38.0 34 . 1 44.2 89.4 70.2 , 76.2 OUT 73. 5 74.2 ______ ______ 1/22/47 60.9
Pansy Schroeder '___________ 45.9 51 . 3 54.3 56.7 65. 2 58.8 63 . 0 59.3 61.3 53.6 63.0 64 .4 OUT OUT OUT OUT OUT OUT OUT OUT 7/23/47 58.7
Jane Yarbrough '____________ 60.8 47 . 1 61.2 48 . 8 63.7 59.0 68.5 77 . 1 69.9 53 . 0 66.2 55 . 6 53.2 63 . 8 49.9 47 . 3 51.2 54 . 6 56.2 63.0 8 /4/47 58.5
Gladys Dickson * ------------ ______ ______ ______ ______ ______ ______ 72.10 79 . 3 68.5 62 . 3 60.2 60 .7 58.4 52. 9 55.2 49 . 0 50.9 41 . 6 39.5 37 . 5 11/11/47 55.3
Gertha Coleman '____________ 52.2 49 . 7 53.1 55 . 2 56.3 58 . 6 62.9 58 . 1 57.6 52 . 3 60.7 56 . 8 52.6 45. 3 42.4 45 . 1 46.2 51 . 1 39.7 26 . 6 7/23/47 51.1
Inez Brown* •________ 71.1 76 . 8 65.6 56. 0 52.8 - 56.8 57 . 3 60.1 57.9 40. 2- 19.9 30 . 7 43.0 6. 5 27.8 32.6 46.0 35.9 39.1 8.8 8/20/47 44.2
Myrtle Babcock"'____,_____ 52.3 49 . 2 41.4 44 . 1 23.3 28 . 4 53.2 46 . 9 51.1 49 . 2 43.9 48 . 3 43.1 46. 1 39.8 33 . 8 41.2 • .43.7 46 46.6 11/5/46 43.6
Georgia Revel•'°____________ ______ ______ ______ ______ ______ ______ ______ ______ 65.7 51 . 7 53.3 60 . 4 38.1 50.1 42.7 34 . 4 29.7 29 . 2 32.1 29.1 X 43.0
Edna Gray '________________ 47.6 53 . 4 51.1 53.4 16 . 1 28.9 55 . 8 45.9 48 . 3 39.2 44 .7 57.0 43. 2 19.7 45. 3 32.0 37 . 6 42.7 23 . 2 32.2 1/28/46 40.9
Warren Spence "°.___________ ______ ______ ______ ______ ______ ____ _ ______ ______ 63.8 .40 . 9 44.4 51 . 8 39.4 38 . 0 36.7 35 . 8 31.8 34 . 9 32.3 31 . 4 X 40.1
Doris Hopkins ',_____________ 37.4 34 . 9 54.7 66 . 3 57.0 12 . 9 40.0 34 . 3 34:3 27.2 OUT 28.6 OUT OUT OUT OUT OUT OUT OUT OUT 7/24/47 38.9
Margaret Ames*"___________ 44.4 47.1 40 38. 6 18.1 53 . 6 55.2 47 . 8 46.5 30.7 34. 2 40.4 32 . 7 25.7 29 . 7 25.9 25.6 30. 4 20.7 32 . 2 3/19/47 35.9
Addle Marchant ** ' - -57.8 58 . 0 58.0 56 . 2 11.7 19.6 16 . 4 32.8 41 . 1 22.3 38 .1 54.3 36.8 41.6 33 . 5 2.0 31 . 8 32.3 25 . 1 23.8 2/6/46 34.7
Lillie Snell- --------------- 39.7 34.4 35.2 32 32.6 33.8 29.6 38.5 36.9 25 . 3 28.1 27 . 8 25.9 14 . 3 31.2 32 .4 OUT ';30.7 27 . 8 25.9 XX 30.7
Lucille Brewer* ------------- 18.9 29 . 4 23.8 30. 4 46.4 39 . 0 42.4 29 . 9 42.7 28 . 8 32.1 32.2 OUT 13. 8 7.7 4 . 0 25.1 . 18.6 40.7 11.7 7/29/47 27.2
'Line banders.
''Regular banders.
••Nonbanding operators.
X Date of employment unknown, except that it precedes November 1947.
XX Date of unemployment unknown, except that it precedes January 1947.
HAPP BROTHERS COMPANY, INC. 1601
APPENDIX C
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 interrogate our employees in any manner concerning their
union activities, views, and membership.
WE WILL NOT discharge or threaten to discharge any employee because
of his membership in or activity on behalf of any labor organization.
WE WILL NOT appeal to racial prejudice in order to discourage member-
ship in any labor organization.
WE WILL NOT offer employees a wage increase for the purpose of discourag-
ing membership in a labor organization.
WE WILL NOT state to our employees that we will not permit a labor
organization in our plant.
WE WILL NOT dominate or interfere with the formation and administra-
tion of any labor organization, or contribute financial or other support to
the Shop Committee or any other labor organization.
WE WILL NOT recognize the Shop Committee as the exclusive bargaining rep-
resentative of our employees for the purposes of collective bargaining un-
less and until it shall have been certified by the Board as the representa-
tive of our employees.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the right to self-organization, to form labor
organizations, to join or assist any labor organization, to bargain col-
lectively through representatives of their own choosing, and 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, as guaranteed in Section 7
thereof.
WE WILL OFFER to the following named employees immediate and full
reinstatement to their former or substantially equivalent positions without
prejudice to any seniority or other rights and privileges previously en-
joyed, and make them whole for any loss of pay suffered as a result of the
discrimination against them :
Gertha Coleman
Gladys Dickson
Verna Mae Davidson
Samuel L. Thomas
Rachel Sheffield
Mrs. Bertha Faulk
Mrs. Dovie P. Holland
Mrs. Thelma Thomason
Mrs: R. L. Tanton
Mrs. Ora Holland
John Hardeman, III
Otis Toole
Mary J. Asbell
Jeannette Myers
Helen Cannon
Roy Hill
Doris W. Thigpin
Lewis Smith, Jr.
Charlie Gallt
Bessie G. Gillespie
Annie M. Curry
Mary E. Gallt
Sallie Lou Nobles
Mrs. R. L. Thornton
903847-51-vol. 9 0-10 2
1602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lois Carter Mrs. Annie Lee Cannon
Reba Caldwell Noami H. Freeney
Marie Sullivan Bessie W. Phillips
Myrtle F. Davis Emily McAfee
Bertie B. Crowe Nell Benefield
George Stapleton Miss Viola Stapleton
Carolyn E. Rauh Mrs. Mary E. Watson Boyles
Nina M. Glover Mrs. Venton A. Pearce
Fannie Lineberger Iduma Parker
Mabel C. Nobles Lula P. Toole
Eula Drawhorn Emory Hammock
F. P. Allen, Jr. Annie Bell Kitchens
Mrs. Eddie D. Davis Mattie K. Hurst
Mary B. Glance Estelle Mitchell
Mrs. Susie L. Ard Minnie Lee Atkinson
Mary L. Jackson Annie Hoskins
Mrs. F. P. Gardner Robert W. Brown
Bessie Luthie Lois Redwine
Mrs. Mae Hudgins Cecil Etheridge
Roy Ricks Nellie Simmons
Minnie D. Culverhouse Irene Barbee
Myrtle M. Sauls Mrs. Imogene B. Crawford
Rosa W. Fulwood Fannie Morgan
Lillian Toole Maude Lee Wilks
LaVerne B. Moore Margaret Davis Carter
Mrs. Helen J. Johnson Mrs. S. A. Persons
Mrs. Beauford McGee Evelyn Campbell
Mrs. Nellie Smith Mrs. G. M. Camp
'Mrs. Louise Horton Myrtle Sitton
Genelle Sutton Cauley Mary Sapp
Mrs. Roy Hill Iris Jean McCullen
Adrian P. Render Catherine Griggers
Inez Brown Jack E. Harrell
William J. Ticker Sallie G. Austin
George E. Ard
WE WILL MAKE whole Daisy Elrod, Ida Whatley, Maude Thompson, and
Myrtle Matthews for any loss of pay they may have suffered as a result
of the discrimination against them.
All our employees are free to become or remain members of any, labor organiza-
tion. We will not discriminate in regard to hire or tenure of employment or
any term or condition of employment against any employee because of mem-
bership in or activity on behalf of any labor organization.
HAPP BROTHERS COMPANY, INC.,
(Employer)
By -------------------------=--------
Dated ---------------=----------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.