Hudson Hosiery Co.

National Labor Relations Board - Board Decisions

Sep 20, 1954

109 N.L.R.B. 1410 (N.L.R.B. 1954)

1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As the time for holding the election directed inour previous de-
cision has expired, we shall direct a new election in the voting group
described therein.
[Text of Second Direction of Election omitted from publication.],
MEMBERS MURDOCK and RODGERS took no part in the consideration
of the above Supplemental Decision and Second Direction of Election.
HUDSON HOSIERY COMPANY ( MONROE ROAD PLANT ) and AMERICAN
FEDERATION OF HOSIERY WORKERS, AFL. Cases Nos. 11-CA-553
and 11-CA-6920. September 20,195 4
Decision and Order
On March 2, 1954, Trial Examiner Arthur Leff 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 Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner, with the following additions and corrections : 1
Contrary to our dissenting colleagues, we agree with the Trial Ex-
aminer that the Respondent violated Section 8 (a) (1) of the Act by
the conduct of Grimm and Seifart during the knitters' strike in April
1953. John Grimm, a supervisor of knitting, taking various posi-
tions, successively, within 20 feet of each of the 2 rotating picket lines
in front of the Respondent's plant, addressed the employees as they
moved near him and simultaneously took their pictures with a motion
picture camera. The son of the Respondent's president, Kurt Seif art,
himself a management representative, was also on the scene, fully
visible to the strikers, taking their pictures from the top of the plant.
About half of the approximately 300 employees in the knitting de-
partment were on the picket line at the time of this incident. Two
employees on the picket lines testified credibly that Supervisor Grimm
told the pickets that through their "foolishness" they were "losing an
1 We correct the typographical error in the first paragraph under "I. The Business of the
Company," of the Intermediate Report in which the value of the Respondent' s goods
shipped out of the State appears as more than $ 5,000. The proper figure is $500,000.
109 NLRB No. 197.
HUDSON HOSIERY COMPANY 1411
awful good job." Grimm admitted that, as he recorded their pictures,
he warned them that they were jeopardizing their jobs by their strike,
activity.' There is no indication in the record of any nonpeaceful
activity during this organizational campaign which began in 1952,
the year before this incident occurred.
In our opinion the only meaning the employees could read into the
conspicuous filming of their peaceful picket lines by management
officials, when they at the same time heard the admonitions of Super-
visor Grimm, was that the Respondent, after identifying and warn-
ing them, would probably discharge them if they did not immediately
cease their strike. Finding no justification for this conduct, we con-
clude that the Respondent interfered with, restrained, and coerced
the employees in the exercise of their rights under this Act, thus
violating Section 8 (a) (1).
We cannot share with the dissenting members the view that Grimm,
in his remarks to the pickets, referred merely to the Respondent's
legal right to replace them, when in fact his testimony (quoted in foot-
note 2) indicates his belief that they had no rights at all as strikers.
Nor can we find justification, as would the dissent, for this conduct
because the Respondent asserted that its filming was to prevent vio-
lence, and, if it occurred, to identify the persons on the picket lisle.
The absence of any indication of violence in this campaign and the
f act that the Respondent nevertheless employed this tactic on the very
first day of the picketing compel us to conclude, as did the Trial
Examiner, that preventing violence and gathering evidence were not
the Respondent's real motivation. But even if the Respondent had
been truly apprehensive, there are no such circumstances in this case,
to justify this type of intimidation, as, for instance, in the Radio
Industries case,' where an employer took pictures of actual "incidents"
in connection with injunction proceedings in which peacefulness on
the picket line was at issue. We note that the Respondent in this case
did not merely assemble photographic equipment so that it would be
"present and ready" in the event violence occurred. The Respondent
went to the extreme of photographing simple peaceful picketing in
the context of explicit threats to the employees that they might lose,
their jobs because of their concerted and lawful activities.
Order
Upon the entire record in this case and pursuant to Section 10 (c),
of the National Labor Relations Act, the National Labor Relations
2 Grimm testified :
Q. You say you have told them what, Mr. Grimm?
A. That they may lost [sic ] their job if they didn 't quit that foolishness ; the rea-
son I said that, they just walked out, and when anybody walks out, they quit the job.
s Radio Industries, Inc., 101 NLRB 912, 925.
334811-55-vol. 109-90
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board hereby orders that Hudson Hosiery Company (Monroe Road
Plant), Charlotte, North Carolina, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in American Federation of Hosiery
Workers, AFL, or any other labor organization of its employees, by
discriminating in regard to their hire or tenure of employment or any
term or condition of employment.
(b) In any manner interfering with, restraining, or coercing its
employees in the exercise of their right to self-organization, to form,
join, or assist American Federation of Hosiery Workers, AFL, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities
for the purposes of collective bargaining or other mutual aid or pro-
tection, 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 Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Oscar Harris immediate and full reinstatement to his
former or a substantially equivalent position without prejudice to his
seniority or other rights and privileges, and make him whole in the
manner set forth in the section of the Intermediate Report, attached
hereto, entitled "The Remedy."
(b) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social-security payment
records, timecards, personnel records and reports, and all other records
necessary to analyze the amount of back pay due under the terms of
this Order.
(c) Post at its Monroe Road plant copies of the notice attached to
the Intermediate Report and marked "Appendix A." 4 Copies of
such notice, to be furnished by the Regional Director for the Eleventh
Region, shall, after being duly signed by an authorized representative
of the Respondent, be posted by the Respondent immediately upon
receipt thereof and maintained by it for sixty (60) consecutive days
thereafter in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not3altered, defaced,
or covered by any other material.
* This notice , however , shall be, and it hereby is, amended by striking from line 3 thereof
the words "The Recommendations of a Trial Examiner " and substituting in lieu thereof the
words "A Decision and Order ." In the event that this Order is enforced by a decree of a
United States Court of Appeals , there shall be substituted for the words "Pursuant to a
Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals,
Enforcing an Order."
HUDSON HOSIERY COMPANY 1413
(d) Notify the Regional Director for the Eleventh Region, in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
CHAIRMAN FARMER and MEMBER RODGERS, concurring and dissenting
in part :
We concur with the decision of the majority in this case, except that
we do not agree with the majority's finding that the Respondent
violated Section 8 (a) (1) by statements of its knitting department
supervisor, John Grimm, and by the actions of Grimm and Kurt
Seifart, son of the Respondent's president, in taking motion pictures
of an employee picket line.
The Trial Examiner found that the Respondent's knitters went out
on strike in April 1953, in protest against a new system of operation
in the knitting department. On one or more occasions during the
strike, Grimm and Seifart took motion pictures of the picket line.
On the basis of employee testimony, the Trial Examiner found that
Grimm made several remarks to the employees on the picket line, such
as, "You boys are in a wildcat strike. You can't win. You have
got good jobs in here, making good money. You better stop this
foolishness and come on back in here to work," and "You don't know
what you are doing. You are losing an awfully good job."
If these remarks imported a threat of reprisal against the employees
for their strike or picketing activities, this would of course be un-
lawful. But, we are unable to find that Grimm's remarks carried
any such implication. The strike being solely over economic issues,
the Respondent was privileged, if it chose to do so, to replace the
strikers. If there is any implication to be gathered from Grimm's
remarks, it can only be that he believed that the Respondent might
take the lawful course of action which was open to it and replace the
strikers. Thus, his statements in effect consisted of no more than
warnings of the possible legal and practical consequences to the em-
ployees of continuing the strike. Such remarks are not proscribed for
they do no more than call attention to the hazards inherent in strike
activity.5
As Supervisor Grimm's remarks were not unlawful, we fail to see
how the Respondent can be held to have violated the Act by having
also engaged in what, it seems to us is another lawful activity-the tak-
ing of motion pictures of the picket line. We recognize that the Board
has sometimes held that an employer has violated the Act merely by
taking pictures of its employees while they were engaged in picket-
ing s This has been on the theory that the taking of pictures consti-
5 Gazette Publishing Company, 101 NLRB 1694 at 1733-1735 ; Kansas Mslling Company
v. N L. R B , 185 F. 2d 413 (C. A. 10) ; Union Bus Termanal of Dallas, Inc., 97 NLRB 206
at 208, 215 ; Dinion Coil Company, Inc., 96 NLRB 1435 at 1438.
6 For example, Radio Industries, Inc., 101 NLRB 912.
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tuted unlawful surveillance. But we cannot agree that this is
necessarily so. The vice inherent in "surveillance" derives essentially
from the intimidatory or coercive effect of employer spying on its
employees' concerted activities, which are not normally freely open
to the employer's observation. Here the activity in which the em-
ployees were engaged, a picket line, was from its very inception neces-
sarily and completely public, open to observation from every source,
and, by reason of its very purpose, was intended to be observed by
anyone, including the public at large and the employer. In these
circumstances, we would not find the mere taking of pictures of this
activity was unlawful.
The Respondent, moreover, has asserted a valid reason for taking
pictures of the pickets. At the hearing, Respondent presented testi-
mony showing that its representatives were apprehensive lest there
might be violence on the picket line, and that the taking of pictures was
prompted by a desire both to discourage the occurrence of violence,
and, in the event that instances of such conduct occurred, to have a
means of identifying the persons involved? Quite apart from other
considerations, we regard this as a substantial justification for the
Respondent's action. This conclusion is not negated by the fact that
pictures were taken during the course of peaceful picketing. An em-
ployer cannot be expected to be so clairvoyant as to foresee whether
or not the activity of a picket line, particularly one so spontaneous
in character as this one, will be peaceful or violent. It would be futile
to attempt to photograph unlawful "incidents" unless the equipment
were present and ready at the time such incidents occur. We can-
not imagine that violence on the picket line would knowingly await
an absent photographer.
We would not find that the Respondent, by the remarks of Super-
visor Grimm or by taking motion pictures of the picket line, violated
any of the proscriptions of the Act.
7 The Board has indicated that an employer would be justified in taking pictures of non-
peaceful picketing . See Radio Industries , Inc., supra, at p. 925.
Intermediate Report
STATEMENT OF THE CASE
Charges having been filed against Hudson Hosiery Company ( Monroe Road
Plant ), herein called the Respondent , by American Federation of Hosiery Workers,
AFL, herein called the Union, in Case No. 11-CA-553 and in Case No. 11-CA-620,
and the two cases having been duly consolidated , the General Counsel issued a com-
plaint, alleging that the Respondent had engaged in unfair labor practices within the
meaning of the National Labor Relations Act, 61 Stat. 136, herein called the Act.
With respect to the unfair labor practices , the complaint alleged in substance that the
Respondent violated Section 8 (a) (3), by discriminatorily discharging Oscar Harris,
on May 23, 1953, and Henry Moore and Burrell Sams, on June 6, 1953, and by
discriminatorily refusing to employ Loretta Reid since December 1952; violated
Section 8 (a) (5), by refusing, since April 11, 1953, to bargain with the Union as
the exclusive representative of its employees in an appropriate unit, and violated
Section 8 ( a) (1), by the foregoing alleged conduct , and by various other enumerated
HUDSON HOSIERY COMPANY 1415
acts of alleged interference, restraint, and coercion. The Respondent in its answer
denied generally the material allegations of the complaint imputing to it the commis-
sion of unfair labor practices.
Pursuant to notice, a hearing was held between December 8 and 11, 1953, at
Charlotte, North Carolina, before the undersigned, Arthur Leff, the Trial Examiner
duly designated by the Chief Trial Examiner. All parties were represented at the
hearing by counsel and were afforded full opportunity to examine and cross-examine
witnesses and to introduce evidence bearing on the issues. At the opening of the
hearing a motion of the General Counsel was granted, to amend the complaint by the
withdrawal from it of the allegations relating to the refusal to employ Loretta Reid.
On the second day of the hearing a motion of the General Counsel was granted, to
amend the complaint further by withdrawing from it the allegations charging the
Respondent with a refusal to bargain. At the close of the hearing a motion was
granted, to conform the pleadings to the proof with regard to minor variances. The
General Counsel and the Respondent argued orally at the end of the hearing. After
the hearing a brief was filed by the General Counsel.'
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Hudson Hosiery Company, a North Carolina Corporation having its principal
office and place of business at Charlotte, North Carolina, is engaged in the manu-
facture and sale of women's hosiery. In the operation of its Monroe Road plant
at Charlotte, North Carolina, its only plant involved in this proceeding, the Respond-
ent annually purchases and has delivered to it from States of the United States, other
than the State of North Carolina, materials and supplies valued in excess of $100,000.
The value of the finished products shipped from the Monroe Road plant in interstate
commerce to and through States of the United States, other than the State of North
Carolina, is in excess of $5,000 annually.
II. THE LABOR ORGANIZATION INVOLVED
American Federation of Hosiery Workers, AFL, is a labor organization within
the meaning of the Act , admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Introduction: the issues
For some years, the Union has been engaged in efforts to organize the Respond-
ent's employees at its Monroe Road plant. Its efforts thus far have proved unsuccess-
ful. A board-ordered election was lost by the Union in 1946, and another in 1951.
In the fall of 1952 the Union instituted a new campaign aimed at winning collective-
bargaining rights at the Respondent's plant, and that campaign continued into the
spring of 1953.
In April 1953, while that campaign was in progress, the knitters at the plant went
out on strike in protest over the institution in the knitting department of a new opera-
tional system, which they regarded as a "double job" system, under which they were
to operate machines with women helpers. The strike lasted from April 6 to May 7,
1953, resulting in a shutdown of plant operations.
After the strike began, the Union filed with the Board a representation petition
seeking certification in what might roughly be described as a production and main-
tenance unit. A hearing on that petition, in Case No. 11-RC-525, was held on
May 11, 1953. However, because of the filing by the Union in June 1953 of its
charge in the instant proceeding, alleging violations by the Respondent of Section
8 (a) (1) (3), and (5) of the Act, no further action has been taken by the Board
in the representation proceeding.
As has been noted above in the statement of the case, the Section 8 (a) (5) issue
has been withdrawn from this case by amendment at the hearing, and so, too, has
the issue based upon the complaint's allegation of a discriminatory refusal to hire
1 At the same time the General Counsel filed a motion for an order correcting the official
transcript of proceedings in certain particulars therein set forth. Notice of such motion
having been given the Respondent, no objections thereto having been received, and it ap-
pearing that the proposed corrections are in order, the motion is now granted, and it is
hereby ordered that the transcript be corrected accordingly.
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Loretta Reid. There is thus left in the case only the issues of whether the Respondent
illegally discharged three employees-Oscar Harris, Burrell Sams, and Henry
Moore-and whether, independently of such discharges, it engaged in various acts
of interference, restraint, and coercion, as alleged in the complaint.
A few preliminary words are in order as to the manner in which the alleged inde-
pendent 8 (a) (1) allegations will be treated in this report. As to some of the com-
plaint's allegations, the General Counsel offered no evidence, and the dismissal of
these allegations will be recommended without further discussion.2 As to the others
with respect to which he did offer evidence, certain of the incidents upon which he
relies from part of the narrative of events connected with the discharge cases, and
will be discussed and ruled upon in the sections of this report dealing specifically
with such cases. Apart from them, the only remaining incidents upon which the
General Counsel would support independent Section 8 (a) (1) findings are the
following: (a) The Respondent's taking of motion pictures of picket line activity at
the beginning of the strike in April 1953, and (b) alleged illegal threats and interro-
gation by Floorlady Beulah Davis and Superintendent L. C. Cobb following the end
of the strike. These incidents will be considered first.
B. The taking of motion pictures of picket line activities and accompanying coercive
statements
During the April 1953 strike, striking employees picketed the plant premises. So
far as appears, the picketing was conducted at all times in an orderly and peaceful
manner. On the first day of the strike, and perhaps on some later occasions as well,
John Grimm, supervisor in the knitting department, stationed himself at a point past
which the picket line was parading and took motion pictures of the picketing em-
ployees. At the same time, Kurt Seifart, son of the Respondent's president and him-
self a management representative, took motion pictures of the picket line from a
vantage point on the top of the plant building from which he was visible to the
employees below. It is conceded that both Grimm and Kurt Seifart engaged in that
conduct with the approval and acquiescence of the Respondent's president, Fritz
Seifart. Kurt Seifart did not address the picketing employees while filming their
activities. But Grimm did not similarly restrain himself. Thus, employee Burrell
Sams testified that Grimm told him and others in his immediate group, "You don't
know what you are doing. You are losing an awfully good job." Employee Henry
Moore testified that Grimm, addressing the picketing group generally, said, "You
boys are in a `wildcat' strike. You can't win. You have got good jobs in here, making
good money. You better stop this foolishness and come on back in here to work."
Grimm, testifying as a witness for the Respondent, stated on direct examination
that he simply told the picketing employees that they had "better stop their foolish-
ness and go back to work." But on cross-examinatiaon he declined to deny the
statements specifically attributed to him, and, moreover, conceded that he might
have warned the picketing employees that they might lose their jobs if they did not
return to work. The testimony of Sams and Moore, as set out above, is credited.
The Board has held that while an employer may permissably take pictures of picket
line "incidents," the photographing by him of strikers engaged in peaceful picketing
constitutes illegal interference, restraint, and coercion within the meaning of Section
8 (a) (1) of the Act. See Radio Industries, Inc., 101 NLRB 912, 913, 914, 925.3
The Respondent here cannot defend its conduct upon the ground that it was making
a record of actual picket line misconduct, for none had occurred. Nor does it attempt
to do so. It does contend, however, that it had a legitimate purpose. Its purpose,
it says, was to reduce the possibility of any picket line violence occurring, and this on
the theory that the very act of taking pictures that could provide evidence of mis-
conduct, if any should occur, would itself operate as a restraining force, retarding
employees from any disposition they might otherwise have to engage in improper
conduct. In view of the accompanying verbal statements made by Grimm, I am
not satisfied that such was the Respondent's only purpose or even its primary one,
and even if it were, I have grave doubt whether that would exempt the Respondent
from the rule of the Radio Industries case. In any event decision in this case need
not, and does not, rest on the per se principle of the cited case and others like it.
2 To wit, the allegation that the Respondent imposed and enforced an illegal no-solicita-
tion rule and the allegation that it engaged in coercive conduct in connection with the hire
of employees.
3 See also, The May Department Stores Company, 59 NLRB 976, 977, 1010-1011 ; enfd
154 F. 2d 533, 535, footnote 2; cert denied 329 U S 725. And of Cayey Manufacturing
Co , Inc., 100 NLRB 494, 495.
HUDSON HOSIERY COMPANY 1417
Where, as here, the making of a photographic record of peaceful picketing is accom-
panied by statements of a responsible employer agent that employees are foolish to
picket and might endanger their jobs it they did not abandon their strike, I think it
clear that not only the verbal statements, but the picture taking itself, tends to restrain
and coerce employees in the exercise of their statutory right to engage in lawful
concerted activity. One is presumed to intend the natural consequences of his action.
Whatever the Respondent's motive may have been, it was to have been anticipated
that in the context of Grimm's remarks employees would naturally assume that the
filming of their activities was designed at least in substanital part as a means of estab-
lishing their identity for use in possible future reprisal action. Accordingly, I find
that by Grimm's and Kurt Seifart's conduct in filming peaceful and lawtul picket
line activities, as well as by Grimm's warnings to employees that they might lose their
jobs, and his accompanying solicitation of employees to abandon their strike activity
and return to work,4 the Respondent violated Section 8 (a) (1) of the Act.
C. Conduct of Floorlady Davis and Superintendent Cobb
Following is the record testimony relating to Floorlady Beulah Davis and Superin-
tendent L. C. Cobb, that the General Counsel relies upon to support Section 8 (a) (1)
findings against the Respondent.
1. Lillie Bartlett, a former inspector in the greige goods department, now no longer
employed, testified: On the day she returned to work at the conclusion of the strike,
Cobb, approaching her at her place of work, said, "So you caused our friend to quit,
have you!" "Who?" she asked. "Dolores said you passed her a union card and
she signed it and gave it back to you," Cobb replied. Bartlett denied the accusation,
but Cobb insisted, "You did. I have that information and a lot more." Floorlady
Davis, shortly after the strike, accused Bartlett of signing a union card. Bartlett
denied having done so, although in fact she had. Davis then told her that if the
girls there did not like what they were being paid, "they know what they can do."
Davis went on to add that if the Union did get in, all the plant would find themselves
without jobs.
2. Thelma Speight, a seamer in the greige goods department, still employed,
testified that shortly after the mill reopened following the strike, Davis told her that
it would not do to get a union in the plant, because if the Union came in, Seifart
would "close the doors."
3. Mamie Walters, an inspector in the greige goods department, testified: Shortly
after the strike, Davis asked her whether she wanted to quit and draw unemploy-
ment compensation .5 After Walters replied that she could not afford to do so, Davis
asked her if she had signed a union card. When Walters said she had not, Davis
told her to see Cobb. Although she had never expressed dissatisfaction with her job,
Cobb told her that if she was unhappy with her job she could seek another. When
she assured him that she had no complaints, Cobb told her that if she continued to
pay attention to Mary Ann Hatley (who is not otherwise identified in the record)
she would get in trouble. The next day Davis again came to Walters and asked her
to "talk against the Union." Davis told Walters at that time that if the Union came
in, Mr. Seifart would close down the plant.
4. Eva Griffin, formerly employed as an inspector, testified: Shortly after the
strike, Davis approached her at her work and asked her if she had signed a union card,
stating, however, that Griffin need not answer if she did not want to. When Griffin
replied that she preferred not to say, Davis asked if she knew that the doors of the
mill would be closed if the employees voted for the Union. Davis then inquired
of Griffin whether she knew any girls who had signed union cards. When Griffin
disclaimed any such knowledge, Davis asked her specifically whether a friend of
hers, Virdie Richards, had joined.
The above testimony, to the extent it involves Cobb, stands on the record un-
denied. But contrary to the position of the General Counsel, I do not view the con-
duct and statements attributed to Cobb as violative of Section 8 (a) (1). Unlike the
General Counsel, I am unable to read Cobb's remarks to Bartlett, even in context
with other findings here made, as spelling out an implied threat of economic reprisal
in the event she persisted in union activities. Nor do I believe that any illegal
implication may fairly be drawn from Cobb's equivocal remarks to Walters, particu-
larly since the record fails to identify Mary Ann Hatley and her connection, if any,
with the Union or its activities.
s See, The Texas Company, 93 NLRB 1358.
5 The record reflects that at that time the Respondent was engaged in a reduction in
force, and that others in the same department were similarly questioned.
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is some conflict as to the testimony involving Davis. Davis admitted
asking Griffin whether she had signed a union card , but denied interrogating her
as to whether others had . Though not specifically questioned with regard to the
testimony of the other witnesses , she denied generally stating to anyone that Seifart
would close the plant if the Union came in. She testified , moreover, that Seifart
had never told her what he would do if the Union came in. In that respect her
testimony was corroborated by Seifart , who added that he had never authorized
Davis to state to employees that the advent of the Union would involve plant
closure.
On the basis of my appraisal of the testimony of all witnesses involved and my
observation of their demeanor , I believe that Bartlett , Speight , Walters, and Griffin
truthfully reported the substance of their conversations with Davis, and I credit
their testimony over Davis' denials.
The critical issue here is whether Davis was a supervisor , as the General Counsel
-contends , or a rank-and-file employee , as the Respondent insists. If on this issue
the General Counsel is right , it would follow that the Respondent must be held
responsible under Section 8 ( a) (1) for Davis' clearly coercive statements to the
four employees above named , expressing or implying that the plant would close
as a consequence of union selection . On that basis , the Respondent would also
be liable under the same section for Davis ' interrogation of Bartlett , Walters, and
Griffin concerning their union membership and that of others, for her interroga-
tion does not stand in isolation , but is contextually related to other coercive con-
duct herein found. Nor would the Respondent be relieved of responsibility because
Davis' conduct may have been engaged in without specific prior authorization or
subsequent ratification by higher management . See Bausch tC Lomb Optical Com-
pany, 107 NLRB 790, and authorities referred to therein.
The issue of Davis' supervisory status was litigated at great length at the hear-
ing. Davis is classified as a floorlady in the Respondent 's greige goods depart-
ment. That department contains roughly 200 employees , headed by Superintendent
L. C. Cobb, who , the Respondent would have it found , is the only supervisor in
that entire department . The department is broken down into three sections-an
inspectors ' section with about 65 employees , a seamers ' section with about 90, and
a menders' section with about 40. Floorlady Taylor, according to Cobb , is "more
or less over the menders ," and Davis is similarly over the inspectors and the seamers.
There is no one in a line of direct authority between Cobb , on the one hand, and
Davis and Taylor on the other. Apart from Cobb, and 2 or 3 employees classi-
fied as fixers , 6 Davis and Taylor are the only employees in the department paid
on a salary basis, their salary rate being substantially higher than the base hourly
rates of employees under them .? Davis has a desk of her own where she main-
tains records relating to department operations . As a rule she does not herself
perform manual work such as is performed by the inspectors , seamers, and menders
in the department, although she may on occasion herself perform, instead of assign-
ing to others , small repair work that can be quickly done . Davis is charged with
maintaining "quality control " over inspectors and seamers . While Cobb is respon-
sible for laying out departmental work on an overall basis, the actual assignment
,of work to individual inspectors is handled by Davis. In addition to giving inspec-
tors their work, Davis directs them as to the manner in which they are to perform
such work, checks the quality of their work , and tells them what to do to raise
production . Davis does not initially assign work to seamers as she does to inspec-
tors. But she is charged with the duty of checking the quality of their work. And
when she finds any of it defective she returns it to them and directs them to have
it redone. Davis also exercises some authority over menders. Thus, when defec-
tive stockings come through that may be salvaged by mending, Davis, without clear-
ing with Cobb or Taylor, turns over the stockings to menders with appropriate
instructions . The menders , like the inspectors and seamers, are expected to comply
with her work orders.
Apart from her authority to assign work to employees and direct them as to its
performance , Davis does not appear to possess the other specific attributes of super-
e There is a conflict as to whether or not the fixers are supervisory employees, the Gen-
eral Counsel claiming that they are and the Respondent that they are not. For purposes
of this proceeding is it unimportant to resolve that conflict '
7 There are two other employees in the department classified as floorladies, but they are
hourly rated, and do not appear to have the overall responsibilities of the salaried floor-
ladies They are not looked upon by employees as a "boss lady ," as is Davis
HUDSON HOSIERY COMPANY 1419
visory authority that are specifically adverted to in Section 2 (11) of the Act .8
There is, however, other evidence reflecting not only that the Respondent itself
regards Davis as identified with management, but that it has clothed her with such
indicia of managerial authority as would reasonably justify employees in looking
on her as a "boss lady," as one employee witness termed her. Thus, Davis is
authorized to and does grant employees leave to go home for the day when they
report that they are ill. When employees have complaints about the computation
of their pay, they take it up with Davis who is authorized to correct errors. Dur-
ing the knitters' strike in April 1953, when management decided to suspend opera-
tions in the greige goods department, Davis notified a number of employees who
had theretofore reported for work to discontinue doing so until their services were
again needed. At the end of the strike, at least some of the employees in the
department were notified by Davis not to return until they were advised by her
that the plant was ready for them. Although the department was down, Davis
herself reported during the strike, as did the Respondent's supervisory personnel
generally, and she was paid her full salary, notwithstanding that regular work was
not then being performed and she did not work full time. After the strike, when there
was a reduction in force, Davis interviewed department employees to determine
who would be willing voluntarily to lay off. As to the Respondent's own appraisal
of Davis' status prior to the events here in issue, it is worthy of note that during
the 1951 board-directed election, the Respondent agreed with the Union to exclude
Davis from the list of eligible voters for the reason-noted on the eligibility list-
that Davis was a "forelady." At the hearing in this case, Cobb testified that in
1951, Davis was "more or less supervising the work of the looping department,"
a section that has since been discontinued. He conceded, however, that Davis'
current job is substantially of the same kind except that she now occupies a relation-
ship to the inspectors that formerly she occupied to the loopers.
The recently decided case of Bausch cC Lomb Optical Company, supra, restates
with reference to guiding authorities the applicable principles which in my view
control judgement on the issue of Davis' supervisory status. Application of those
principles to the facts here impel a resolution of the issue in favor of the General
Counsel. While Davis does not have authority to hire, discharge, or otherwise to
affect the job status of employees under her, there is considerable and persuasive
evidence to support the conclusion here reached that she does have authority
"responsibly to direct" employees within the intention of that phrase as used in
Section 2 (11) of the Act. To hold that Davis' direction is not "responsible"
would make for a ratio of 1 supervisor to 200 employees in the department, an
inordinate ratio in a plant of this kind. Corroborative evidence of Davis' status as
a managerial employee is found in her salaried position, her nonperformance of
regular production work, and her use of a desk on the plant floor to maintain
plant records. Further corroboration is found in her admitted authority to grant
employees at least limited leave when they are ill, and in the authority that has
been delegated her at least on occasions to notify employees when, and when not,
to report for work. Confirmatory proof of management's own view of her as one
allied in interest with it rather than with rank-and-file employees is to be found in
such circumstances as her presence in the plant during the strike shutdown, her
exclusion from the voting eligibility list as "forelady" during the last Board elec-
tion, and Cobb's admission that her function is "more or less" that of a supervisory
employee.
Accordingly, I find that at the times material herein, Davis was a supervisory
employee within the meaning of the Act, and that her coercive statements and inter-
rogation of employees, as set out above, constituted conduct violative of Section
8 (a) (1) of the Act, imputable to the Respondent.
D. The discriminatory discharge of Oscar Harris
Oscar Harris, a knitter, was employed by the Respondent in 1938, and, except for
a few weeks in 1943, when he worked at a defense plant, remained continuously in
the Respondent's employ until his discharge on May 22, 1953. He joined the Union
in 1946, and became organizationally active beginning in 1950 , signing up employees,
collecting initiation fees and selling dues stamps. He participated in a strike of
s There is uncontradicted testimony by one employee that when she first applied for a
job, Davis sent for her, put her to work, and some time later transferred her from miscel-
laneous work to inspecting . That, however, occurred many years ago, and is insuffi-
cient in my opinion to counter the Respondent's assertion that Davis at present has no
authority to hire or transfer.
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
short duration in September 1950, and was outstandingly active in the 1953 knitters'
strike during which he served as a picket line captain and on the strike relief com-
mittee. The Respondent's knowledge of Harris' union activities is not disputed.
During Harris ' last half year of employment , his union activity was the subject of
discussion between him and Knitting Superintendent William Frickhoeffer on a num-
ber of occasions . The first occurred in October or November 1952, after the Union's
most recent organizational campaign was initiated . It was precipitated by a com-
plaint Frickhoeffer made to Harris' foreman , Fred Herrin, concerning the amount of
needle cleaner on Harris ' machine. Frickhoeffer 's observations were of such a nature
as to lead Harris to fear Frickhoeffer was looking for an excuse to fire him. Con-
sequently, Harris arranged an interview with Frickhoeffer. Harris told Frickhoeffer
that he considered his first responsibility to be to his family, and that therefore he
had decided to withdraw from union activity, fearing discharge if he did not do so.
Frickhoeffer responded by saying, "Well, I don't want you to be two-faced about
that and go back and work for the Union after coming to me telling me you were
through with the Union." After Harris assured Frickhoeffer of his good faith,
Frickhoeffer said, "Well, you have been very influential in the Union and I don't
know now what you want to do to undo that." Harris replied that he intended to do
nothing more than "quietly to withdraw , without telling anyone that he was doing so
or asking anyone else to pull out." Frickhoeffer then warned Harris that if he should
later learn that Harris was "talking Union," after having promised him not to do so,
he would "get" Harris.9
In conformity with his promise to Frickhoeffer, Harris thereafter refrained from
union activity until January 1953. During that month the Respondent discharged
some 25 knitters , and as a result Harris suffered a change of conscience . Calling on
Frickhoeffer, Harris told him he had now concluded he had made a mistake in an-
nouncing he was through with the Union, and in fairness to Frickhoeffer was serving
notice of his present intent to withdraw from his earlier promise and to fight for the
Union harder than ever in order that something might be done for the 25 knitters who
had been discharged. Frickhoeffer's response was to warn Harris that he would have
to "watch" himself in that event. In the course of that same conversation, Frick-
hoeffer asked Harris "what it would take" to get Harris to work for the Company
against the Union, drawing from Harris the reply that he "was not interested in any-
thing like that." 10
I find, in agreement with the General Counsel, that Frickhoeffer's warning to Harris
in the context of their conversation that he would have to "watch" himself contained
9 The findings made in this paragraph are based upon the credited testimony of Harris
who by his overall testimony and demeanor impressed me as a forthright witness. Frick-
hoeffer's version of this conversation is at variance with that of Harris only in that he de-
nied saying anything to Harris about what would happen if lie resumed union activity.
According to Frickhoeffer, he simply told Harris that it would be a good thing if other em-
ployees also worked for the Company instead of the Union. In certain other respects,
Frickhoeffer impressed me as less than candid, and of the two I regard Harris as the more
reliable I credit his testimony over that of Frickhoeffer to the extent their respective
versions are in conflict.
19 Frickhoeffer admitted having a conversation with Harris at about this time in which
Harris withdrew from his earlier promise for the reasons stated above But he denied
asking Harris to work for the Company "against the Union." Upon further questioning,
however, Frickhoeffer admitted asking Harris "what it would take" to get him to work
with the Company His explanation, that lie had no thought of implying a promise of
personal benefit to Harris conditioned upon his working against the Union, but intended
merely to ascertain what working conditions, generally speaking, Harris would consider fair
and equitable, was unconvincing, particularly in light of his admission that Harris flatly
refused to work with the Company "on that score." Frickhoeffer testified at one point that
lie could not recall warning Harris to watch himself, but at another he admitted that he
might "possibly" have warned Harris in such words He sought to explain in one place
that he had reference to all employees "watching" themselves in the sense of working
more to get better production , later he testified that no question was involved about the
quantity of production, but that the statement concerned the quality of production. He
admitted, however, that there was no question at that time about the quality of Harris'
production And he was unable satisfactorily to explain why such a topic should have
come up on that particular discussion. To the extent that Harris' and Frickhoeffer's ac-
counts of their conversation are in conflict, I credit Harris' version. I also find, contrary
to Frickhoeffer 's assertions , that Frickhoeffer ' s comments here in question were directed
to Harris' union activities , and not to unrelated matters
HUDSON HOSIERY COMPANY 1421
a threat of economic reprisal against Harris if he resumed his union activities, and
that Frickhoeffer 's inquiry of Harris as to "what it would take " to get him to work
for the Company against the Union contained an offer of personal benefit condi-
tioned upon Harris engaging in antiunion action, both constituting independent viola-
tions of Section 8 (a) (1) for which the Respondent is responsible.
As noted above, Harris actively participated in the knitters ' strike in April 1953.
The strike was suddenly called off on the evening of May 7. On the following morn-
ing a group of knitters , Harris included , reported for work at the mill. Finding the
doors to the knitting department closed , they went to the plant cafeteria where they
found President Fritz Seifart in the company of Foreman Walter Panel . One of the
group of returning strikers demanded to know whether the Respondent was "locking
out" its knitters . Seifart assured the group that the Respondent had no such inten-
tion . He explained that the Respondent had had no advance notice that the strike
was being called off, and that it would take some time to get the plant ready for
the resumption of operations . Harris then accused Seifart of having been at fault
in declining to talk about a strike settlement to either the conciliators or the strikers.
At that point, according to Harris ' credited testimony , corroborated by that of em-
ployee Burrell Sams, Seifart angrily turned on Harris and said, "Harris , you are
nothing but a Union stooge and a person of very low character . I won't talk with a
person of your low character , and before I will operate this plant with people like
you, I will liquidate it." 11 Harris rejoined that his character was as good as Seifart's;
Seifart reiterated that that had to be proven ; and that was the end of their verbal
exchange . Not long thereafter , the necessary preparations having been made, the
plant was reopened , and Harris was returned to his job along with the other strikers.
The General Counsel claims that Seifart 's remarks to Harris , quoted above, con-
stituted an independent violation of Section 8 (a) (1). I do not agree . The remarks
were made in the course of an angry interchange between Harris and Seifart, pre-
cipitated by what Seifart obviously believed was Harris' improper questioning of his
personal good faith . Considered in the context in which Seifart 's remarks were made,
I construe Seifart 's references to Harris as a "union stooge" and a "person of low
character," along with his statement about liquidating the plant, as expressions of
Seifart's low opinion of Harris as a person , rather than as a threat not to operate the
plant with union members. I do not think that Harris or the other employees could
reasonably have interpreted that statement otherwise , particularly in view of the fact
that Seifart had already expressed his intent to reopen the plant and return the
strikers to work. I find that Seifart 's angry outburst on this occasion was not viola-
tive of Section 8 ( a) (1).
After returning to work, Harris for a time considered quitting his job and accepting
work elsewhere . On a Saturday , about 10 days after the end of the strike , Harris
visited Frickhoeffer 's home to advise him of his plans and to request his recommenda-
tion for other work . While requesting a recommendation , Harris expressed the view
that Frickhoeffer could not possibly have anything against him except his union
activity . Frickhoeffer readily agreed with the correctness of Harris ' assumption.
But he declined nevertheless to give Harris a recommendation , declaring that the
Company's lawyer would not permit him to provide recommendations to employees
while they remained on the payroll . He assured Harris, however, that if and when
Harris actually quit his job, he would be glad to give him a recommendation. If
Harris quit , Frickhoeffer added, it would "keep Kurt Seifart off my neck to get you
out of here." During the course of that same conversation , Harris mentioned that
after returning from the strike his foreman , Fred Herrin, had instructed him to
discontinue his old habit of chewing tobacco while at work. Pointing out that he had
seen no posted rule to that effect in the plant, Harris inquired of Frickhoeffer whether
that restriction was intended to apply just to him. Frickhoeffer told Harris that it was
not so intended . But, he hastened to add, "you boys that have had an active part in
the strike are going to have to toe the line around here." i2
II While not taking issue with other parts of Harris ' testimony concerning this meeting,
Seifart denied making the quoted statement , and Panel disclaimed any recollection of it
I am persuaded , however , that the statement was made substantially as testified to by
Harris and Sams, and that Seifart and Panel are mistaken in their recollection.
" The findings made in this paragraph are based upon Harris ' credited testimony . Frick-
hoeffer admitted having a conversation with Harris at his home at which Harris ' request
for a recommendation was discussed, but testified that he could not recall saying anything
about former strikers having to "toe the line " To the extent that Harris and Frickhoeffer
are in conflict, I credit Harris
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In agreement with the General Counsel, I find that Frickhoeffer's warning to
Harris, that those who played an active part in the strike would thereafter have to
"toe the line" in the plant, constituted a threat of economic reprisal against strikers
for having exercised rights guaranteed by Section 7 of the Act, and was thus violative
ofSection8(a) (1).
Harris left Frickhoeffer's home that Saturday with the understanding that he would
let Frickhoeffer know by the following Tuesday whether he would take the other job.
However, though deciding to remain, Harris refrained from bringing up the subject
again. On Wednesday, May 20, Harris encountered some trouble with the friction
lock of his machine, resulting in the cutting of a set of welts just after it had been
hooked up. While Harris was discussing his trouble with Herrin, Frickhoeffer came by,
and inquired, "You are not going to quit, are you?" "No," said Harris. "You are not
going to give up in the middle of a fight?" continued Frickhoeffer. "No," answered
Harris.13 Herrin and Frickhoeffer then examined the friction lock, but Herrin
at least was unable to find anything wrong with it. Apparently, however, the machine
required some adjustment, and Harris was sent home by Herrin who told him that
he would be called back later that night after Herrin had got the machine ready 14
Harris was not called back on Wednesday, but returned on Thursday, working his
full shift without incident. On the following day, Friday, May 22, there occurred
the incident which the Respondent now claims led it to discharge Harris.
The basic facts relating to Harris' participation in that incident are agreed to
by all persons involved.15 During a lull period in his machine operations, Harris
called over to a fellow knitter, Ralph Blalock, who worked at a nearby machine,
inquiring whether or not Blalock had signed up Blalock's helper, Peggy Durham,
a new employee who had come to work for the Respondent but 2 days before.
Upon receiving a negative reply, Harris proceeded to the place at the end of Bla-
lock's machine where Durham was tying up a set of hose, a task which it appears
does not require particular concentration. The full conversation which ensued-
accepting Durham's version exactly 16-ran as follows:
HARRIS: Has anyone said anything to you about joining the Union?
DURHAM: No, they have not.
HARRIS: Well, you should join.
DURHAM: I don't care to have anything to do with the Union whatsoever.
HARRIS: You still should join [or something like that].
HARRIS (calling to Blalock) : Ralph you have got to sign her up.
Harris then walked back to his machine, ending his participation in the incident,
which according to Durham consumed no more than 2 minutes; according to Harris,
some 45 seconds.
Harris testified that not long after this incident, he observed Foreman Fred
Herrin approach Blalock, speak to him, write something on a slip of paper, and
then walk to the telephone. Within less than an hour-according to Harris' fur-
ther testimony-Frickhoeffer came into the department to speak to Blalock and
Durham.
On the following morning-a Saturday-Frickhoeffer called Harris at his home,
and asked him to come to his office. When Harris arrived, Frickhoeffer told him
he would have to let him go. In response to Harris' request for an explanation,
Frickhoeffer stated that Harris had asked Durham to join the Union. Harris was
later given a termination slip, stating that he was discharged for violating the Com-
pany's rules. As Harris was leaving the plant, after obtaining his tools, he encoun-
13 Frickhoeffer did not deny this conversation. According to him, he addressed his in-
quiry to Harris in order to determine whether it would be necessary to make arrangements
to replace Harris.
14 According to Frickhoeffer, Harris was sent home on that occasion as a disciplinary
measure for having improperly left the friction box open on his machine. Frickhoeffer's
testimony in that respect is not borne out by Herrin, who testified generally that he had
found Harris a satisfactory employee. Moreover, Frickhoeffer admitted that he neither
himself reprimanded Harris for the friction box incident, nor directed Herrin to do so
For these reasons, I do not credit Frickhoeffer's testimony that Harris was laid off on
that occasion as punishment for faulty work, and find instead, in accordance with Harris'
testimony, that he was told to go home because there was no need for his services while
the machine was being placed in readiness for further operations
15 Such variances as appear are of minor detail In instances of such minor conflict,
the facts found here are based upon the testimony of one or more of the Respondent's
witnesses.
16 Harris' is substantially the same
HUDSON HOSIERY COMPANY 1423
tered Frickhoeffer. After exchanging some banter about the union button Harris
was then wearing, Frickhoeffer told Harris, "Oscar, you would have been a valu-
able man to have been working for us and against the Union." 17 -
Though Harris' termination notice stated he was discharged for violating a com-
pany rule, the Respondent made no effort to establish a breach on Harris' part of
any specific formalized plant rule. No evidence was offered to show whether the
Respondent had a rule against union solicitation on company time that would have
rendered Harris subject to valid discharge for its breach. Early in the hearing,
the Respondent's counsel, when asked to state the Respondent's contention with
regard to Harris' discharge, said, "His discharge centered around alleged neglect
of work, not necessarily incompetency in his work." Later-while the General
Counsel was still presenting his case-in-chief-the Respondent's counsel asked leave
to supplement his earlier statement of position, by making clear that while the
Respondent was contending that neglect of work was an element involved, it was
not contending that it was the only element, nor even necessarily the "main or
basic thing." But he declined at that time to state what the Respondent's basic
contention was. During the examination of Fritz Seifart, the Respondent's first
witness, the Respondent's counsel objected to the Trial Examiner interrogating the
witness as to the existence of a no-solicitation rule in its plant, contending that that
question was irrelevant to the issues of this case. On that point, Respondent's
counsel was specific. He said:
I will put it affirmatively; we state that Mr. Harris would not have been dis-
charged merely for leaving his machine the length of time that he did leave it
and speak to another employee.
Asked whether he intended his statement to be interpreted as meaning that the
Respondent was neither claiming that Harris was discharged for addressing Durham
concerning the Union, nor defending its action on the ground that Harris had vio-
lated a no-solicitation rule, Respondent's counsel answered:
Yes, sir, that we do not defend his discharge upon the ground that he went
over to a lady and spoke to her in regard to the Union or solicitated her
membership for the Union.
The Respondent's affirmative contention, its counsel announced at that time, was
as follows:
We contend that the discharge of Mr. Oscar Harris was because of his leaving
his work, going over interfering with another employee and placing her in
a high state of excitement and causing her to do her work badly.
The statement last quoted represents the Respondent's final and present position.
In view of it, it is unnecessary to consider whether Harris violated a plant rule against
union solicitation, for even if the record clearly established the existence of such a
rule-and it does not-the Respondent disclaims it as a reason for the discharge.
Nor, for the same reason, is it necessary to determine whether Harris violated some
other company rule.18 The Respondent's original position that neglect of work was
a factor in the discharge has apparently been abandoned. In any event such a posi-
tion would be inconsistent with Herrin's testimony, that he considered Harris a satis-
factory employee. Thus, the factual issue in this case boils down to this: Was the
discharge motivated by Harris' union activity, as the General Counsel contends, or
was Harris discharged because he interfered with Durham to such an extent as to
cause her to perform her work badly, as the Respondent now claims?
To support its defense, the Respondent relied principally upon the testimony of
Peggy Durham. Durham testified that as a result of her conversation with Harris-
reported in full above-she became excited and extremely nervous, her condition
having been induced by a fear that Harris might cause her to lose her job. That
17 The findings in this paragraph are based upon Harris' credited testimony. Frick-
hoeffer denied making the quoted statement above. He also testified that he told Harris
that he was letting him go for leaving his machine and interfering with the work of another
employee Harris' version is credited.
18 It may be observed in passing that the Respondent had no rule against employees talk-
ing to others while at work. There is a rule against knitters leaving a machine unless it
is attended either by a helper or by an alley-partner. But Harris did not violate that rule.
It appears affirmatively that during Harris' visit with Durham, Harris' alley partner re-
mained in a position where he could service Harris' machine if necessary. Frickhoeffer,
while testifying, was unable satisfactorily to explain what rule he had reference to in the
termination notice.
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nervous condition, she says, caused her later to spoil a set of stockings on the machine
she was working. The spoilage of the stockings, she admits, was brought about by
her own error in pulling a wrong lever on the machine, with the result that she racked
out the carrier rack when she should have racked out the narrowing rack.19 Beyond
spoiling the single set of stockings then on the machine, her error did no actual dam-
age. When Foreman Herrin came over to investigate the cause of the spoilage, she
first told him that she had pulled the wrong lever by mistake, but later, after being
prompted to do so by Blalock, she also reported to him her earlier conversation with
Harris, and attributed to Harris' comments a nervous condition which she claimed
had led her into her mistake. Later, she made a similar report to Frickhoeffer,
repeating to him her conversation with Harris, just as reported above and without
embellishment. The spoilage of the stockings referred to above was not Durham's
only mishap that evening. Later that evening-after Herrin had assured her, accord-
ing to the Respondent's witnesses, that she had no reason to fear job insecurity because
of Harris' comments-Durham made another error in the operation of her machine,
resulting in the production of an irregular set of stockings. Nor were these Durham's
only mistakes. She had made "quite a few"-according to Blalock-before Harris
first spoke to her, and she was to make others later. As appears from Herrin's
testimony, it was not uncommon for inexperienced employees to make mistakes such
as pulling a wrong lever. Errors of this sort by beginners who, like Durham, had
worked only 2 days were to be anticipated.
Durham's testimony, to the extent it expresses or implies that Harris' comments
induced in her a nervous condition and was the proximate cause of the stocking
spoilage, strikes me as simply implausible. Durham's spoilage of the stockings did
not occur until some 10 to 15 minutes after Harris spoke to her, as appears from
Blalock's testimony. It cannot therefore be attributable to temporary inattention to
her duties caused by Harris' alleged interference. And Durham's own account does
not lend credence to her story that her operational error 10 to 15 minutes later was
due to a virtual state of panic into which Harris' remarks had thrown her. I find
nothing in Harris' remarks that might conceivably have led Durham to fear that she
was endangering her job by not complying with his request to join the Union. Nor
do I find anything in them that might otherwise account for Durham's claimed
nervous condition stemming from Harris' visit. Blalock, a witness for the Respond-
ent, who testified that Durham was visibly nervous, admitted that he observed no
nervousness on her part until after she had spoiled the set of stockings. That Dur-
ham, an inexperienced employee, would become upset and nervous as a result of
her mishap with the machine is understandable enough, but not so her claim that
her nervousness flowed from Harris' remarks rather than from the mishap.
The Respondent argues that it is unimportant that Harris' comments might not
have been the real cause of her mistake. The issue-it says-is not whether Dur-
ham's explanation for her mistake was a true one, but whether Frickhoeffer in good
faith believed it to be true and was motivated in his decision to discharge Harris by
that belief rather than by an antiunion consideration. That, of course, is so. But on
the facts of this case, I find it impossible to believe that Frickhoeffer as a result of
his investigation could have concluded in good faith that the cause of the spoilage
lay in Harris' conduct rather than in Durham's inexperience. Other record facts
reveal that Frickhoeffer in making his investigation was more concerned with finding
a basis on which to support discharge action against Harris than he was with tracing
the cause of the damage. Thus, it appears that although Frickhoeffer questioned
Durham and Blalock at length about Durham's first mistake that evening and Harris'
possible connection with it, he did not bother to question them about Durham's later
mistake that evening. Moreover, Frickhoeffer refrained in his investigation from
obtaining Harris' side of the story, although, as the record shows, it was customary
for him in situations where one employee was charged with interfering with the pro-
duction of another to hear both sides before reaching decision. It is also significant
that Frickhoeffer admittedly did not consult with Herrin on whether Harris should
be discharged, although normally it was his practice to consult and take into account
the opinion of an affected employee's immediate supervisor before taking such drastic
action. Confirming the conclusion here reached that Frickhoeffer did not in truth
believe that Harris' brief talk with Durham was the cause either of her nervousness
or of her work spoilage, and that the Respondent's present defense comes as an after-
thought, is Frickhoeffer's failure to mention the spoilage to Harris when he notified
him of his discharge, as Harris' credited testimony shows. Additional confirmatory
proof is to be found in the Respondent's failure to refer to that as the reason for its
19 The lever controlling the carrier rack and the lever controlling the narrowing rack are
close together on an admittedly complicated mechanism.
HUDSON HOSIERY COMPANY 1425
action in Harris' separation notice, as well as in its failure to assign it as a specific
defense at the hearing until at least one other specific defense had been asserted and
abandoned.
With the Respondent's defense thus discredited, the key to its discharge of Harris,
after 15 years of admittedly satisfactory service, must be sought elsewhere. It is to
be found, I am persuaded, in the Respondent's hostility to Harris because of his
strike and union activities-as evidenced particularly by Frickhoeffer's various declara-
tions to Harris that have been reported above. On the basis of the record as a whole,
I conclude and find that by discharging Oscar Harris on May 22, 1953, and by there-
after refusing to reinstate him, the Respondent discriminated in regard to his hire and
tenure of employment, thereby discouraging membership in the Union, and inter-
fering with, restraining, and coercing employees in the exercise of the rights guaran-
teed them in Section 7 of the Act.
E. The alleged discriminatory discharges of Burrell Sams and Henry Moore
Burrell Sams was employed by the Respondent continuously since 1943, except
for 2 years in the armed service, and Henry Moore since 1951. Both were union
members and active participants in the knitters' strike in April 1953. During that
strike, Sams and Moore were members of the strike committee, which had a total
membership of some 8 or 9, and Moore, in addition, served as a picket captain.
The Respondent's knowledge of their union interest is not disputed. But, while there
is evidence of declarations by management representatives reflecting management's
awareness of the interest of these employees in the Union, and along with it perhaps
an attitude of opposition thereto, the record does not support the General Counsel's
contention that coercive statements, independently violative of Section 8 (a) (1),
were specifically directed to these employees.20
Sams and Moore, both knitters, were discharged on the same day, June 6, 1953,
and for the same reason-"unsatisfactory needle report." That was the reason given
them orally at the time of their discharge and the one that was stated on their termi-
nation notices. It is also the reason upon which the Respondent now defends its
action as one for cause.
Some years ago, the Respondent adopted a program to train employees in the
proper care of needles that are used in knitting machines. Needles used in modern
fine gauge hosiery knitting equipment are delicate objects that must be kept in near
perfect condition so that streaks or stripes may not develop in stockings. New
needles are often thrown out of shape between the time they leave the needle manu-
facturer and the time they are ready to be installed in the knitting machine. It is
the duty of the knitter to see to it that the needle is plyered into proper straightness
and shape before it is used in the machine. The needle training program was designed
to teach knitters the necessary skills for the performance of that duty. To insure
20 The General Counsel in his brief points specifically to the following statements made
by Frickhoeffer on separate occasions to Sams and Moore, respectively, that he claims were
violative of Section 8 (a) (1) : Sams testified that in May 1953, Frickhoeffer told him that
he "could not understand" young employees like Sams "backing a thing like the Union,"
because "by union rules [they] would have been laid off long ago." Sains further testified
that on the same occasion, after Sams had expressed the view that he intended to take his
stand with the majority, just as he had done during the recent strike, Frickhoeffer told
him that "the majority was not going to feed [him]" and that he "had better start looking
out for [himself], and the majority was going to be on the outside" Moore testified that
Frickhoeffer told him in June that he could not understand why young fellows like him
fought for the Union because they had very little seniority and would be the first to go
if the plant were unionized Frickhoeffer's statements to Sams and Moore concerning the
effect of unionization upon young employees involved, it is found, the expression of a view
on his part, privileged under Section 8 (c), concerning the disadvantages of a union-imposed
seniority system on employees with little service credit, and contained no threat of eco-
nomic reprisal As to Frickhoeffer's further statement to Sams-which Frickhoeffer denied
making-I am similarly of the opinion that no unlawful threat was contained in that
statement, even if made Sams' own testimony shows that it was made in the course of
a discussion largely centered about strikes and their effects upon employees In context,
Frickhoeffer's reference to a "majority . . . going to be on the outside" may be inter-
preted, not as a declaration that reprisal action would be taken against a majority of
employees if they chose the Union, as the General Counsel would have it inferred, but rather
as part of Frickhoeffer's argument that Sams could not be "fed" by the majority if it
chose to strike-an argument made In answer to Sams' expressed intent to stand with the
majority as he had done during the last strike.
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adherence to proper standards after completion of the training period, the Respondent
instituted a procedure of grading knitters periodically on the condition of the needles
they had on hand for installation in the machines. The grading was done by Anthony
Frantz, the needle instructor, who at approximately monthly intervals would collect
from the knitters about 50 needles from the supply they had on hand, check the
needles to determine whether they had been properly straightened , and on the basis
of his check give each knitter an individual grade. A grade of less than 85 was
considered unsatisfactory . Af first, the needle grade was not considered the prime
test of a knitter's competence. However, with the disappearance of a seller's market
and sharper competition in the industry , it became increasingly more important for
the Respondent, according to its testimony, to emphasize quality of production above
all else. For that reason, the Respondent began to stress the importance of knitters
achieving a satisfactory needle grade, and made this a primary standard of job
competency. At about the beginning of 1953, the Respondent posted a notice to
knitters advising them that their failure to attain a needle grade of 85 or better
would constitute cause for discharge. According to uncontradicted evidence intro-
duced by the Respondent, the Respondent has discharged over 50 employees since
January 1953 for failing to make a satisfactory needle grade and has retained in its
employ none whose needle grade was below the established standard for satisfactory
performance.
Prior to his last rating, Sams had received about 5 needle grades, all but 1 of
which were at least 85, the 1 below that figure having been given him some time before
January 1953. Moore's penultimate grade had been about 85 or 86, but there had
been one or more occasions in the past, presumably prior to January when he had
failed to attain an 85 rating.
Sams and Moore were last rated by Frantz about a week or two before their dis-
charge. Sams received a grade of 75, Moore a grade of 78 . It was Frantz ' practice
after grading needles to return the graded needles to the employee together with a
report indicating the respects in which given needles failed to measure up to standard.
He followed that practice on the occasion of the ratings in question. Neither Sams
nor Moore complained at the time that their ratings were inaccurate. Sams did
complain of unfairness in that another knitter in the department, Knowles, had had
his needles returned to him with a note telling him to straighten them out, whereas
Sams had not been given that opportunity. In response to that complaint, Frantz
advised Sams that what he did was his and the Company's business. However,
Frantz later attempted to reassure Sams by expressing confidence that Sams could
bring up his grade by spending some more time on his needles, and by promising to
speak to the "front office" on Sams ' behalf.
Under date of June 3, 1953, Frantz prepared a report for Frickhoeffer listing
all knitters and their needle grades on his last examination. The report showed
that all in the department except Sams and Moore, who alone had grades below
standard, and two others, Knowles and Hipp, who were not rated at all, received
grades of 85 or better. That report was transmitted to Frickhoeffer shortly there-
after. Frickhoeffer testified that he discharged Sams and Moore solely on the basis
of their unsatisfactory grades as shown on that report, and for no other reason.
The General Counsel made no effort frontally to attack the accuracy of the
rating given Moore, but did attempt to do so in the case of Sams. Sams testified
that the needles he had submitted to Frantz for rating were not his own, but were
straightened needles that had been given him by another employee, William Tyson,
who had quit the Respondent's employ in May, just after the strike. Sams testi-
fied further-and in this Tyson corroborated him-that Tyson had been given a
grade of 95 on the very same needles during the last previous needle grading con-
ducted just before the strike. Sams would have it believed that the needles he
supplied Frantz were not only the same, but also were in precisely the same con-
dition in which they had been at the time of Tyson's rating; and from that he
would have it inferred that Frantz deliberately underrated the needles Sams sub-
mitted to him in order to aid the Respondent in achieving a discriminatory objec-
tive. But the evidence as a whole does not support the basic premise on which
that hypothesis rests, namely identity in the condition of the needles on both occa-
sions. Although Sams testified that the needles were at all times retained in a
metal case from the time Frantz returned them to Tyson, until the time Sams
deceptively submitted them as his own to Frantz, Tyson's testimony is to the con-
trary. Thus Tyson testified that when he gave them to Sams he transferred them
from the metal needle case in which he had kept them into a paper container sup-
plied by Sams. It appears that, after receiving the needles from Tyson, Sams
kept them for a substantial period of time in his toolbox. It further appears that
in that box Sams would deposit from time to time heavy objects which could have
HUDSON HOSIERY COMPANY 1427
knocked the sensitive needles out of line. Sanis himself admitted that he did not
reexamine them before submitting them to Frantz. Under these circumstances I
consider both Sam's factual premise and the inference he would draw from it unsup-
portable as a matter of substantial evidence.
The General Counsel argues in his brief that the needle grading system now
employed by the Respondent as a means of judging a knitter's competency-as
contrasted to the objective method used before January 1953, of counting the
number of needles used and the number of imperfect stockings produced-is one
"readily susceptible of manipulation for any purpose, including discrimination in
violation of the Act." What the General Counsel says is true. The record shows
that Frantz grades needles against tolerance standards as close as two one-thou-
sandths of an inch without the aid of measuring devices, and the grades he gives
depend entirely on what he may see with his naked eye and the personal judg-
ment he may form. Such a method does make possible the manipulation of needle
reports for a discriminatory purpose. But the question here is not whether the
Respondent could have used its system of grading needles as an instrument of dis-
crimination, but whether in fact it did. On that issue the burden of proof was
on the General Counsel. And because the nature of the Respondent's defense was
such as to make that burden a difficult one to bear, did not relieve the General
Counsel of his duty to carry it, if he would make out a case. For reasons already
indicated, I am unable to agree with the General Counsel that actual manipula-
tion is established in this case by the rating given Sams on Tyson's needles. Nor
do I agree with the General Counsel-notwithstanding Frantz' evasive and uncon-
vincing explanations-that the failure to grade Knowles and Hipp supplies suffi-
cient proof that the Respondent was out to "get" Sams and Moore for discrimina-
tory reasons, utilizing the needle reports with that end in view.21
Particularly in view of the General Counsel's failure to show discrimination in
the grading of Sams and Moore, the clear record evidence establishing the Respond-
ent's policy to discharge employees with substandard needle gradings, and the evi-
dence showing the application of that policy to at least 50 other employees since
January 1953, none of whom are claimed to have been illegally discriminated
against, I find no basis for rejecting Frickhoeffer's testimony that these employees
were discharged because of their unsatisfactory needle grades and for no other
reason. Consequently, I shall recommend dismissal of the complaint's allegations
relating to Sams and Moore.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its operations described in section 1, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I
shall recommend that it be ordered to cease and desist therefrom and take certain
affirmative action in order to effectuate the policies of the Act.
Having found that the Respondent discriminated with regard to the hire and tenure
of employment of Oscar Harris, I shall recommend that the Respondent offer him
immediate and full reinstatement to his former or a substantially equivalent position,
without prejudice to his seniority or other rights and privileges, and make him whole
for any loss of pay suffered by him as a result of the discrimination, by payment to
him of a sum of money equal to the amount he would have earned from May 22,
1953, the date of his discriminatory discharge, to the date of the offer of reinstate-
ment, less his net earnings to be computed on a quarterly basis in the manner estab-
lished by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. Earn-
ings in one particular quarter shall have no effect upon the back-pay liability for
any other such period. It will also be recommended that the Respondent make
available to the Board, upon request, payroll and other records to facilitate the check-
ing of back pay due.
As the unfair labor practices committed by the Respondent were of a character
striking at the roots of employee rights safeguarded by the Act, and disclose a
21 Other evidence in the record discloses that Knowles at least was also a union member,
who actively and openly participated in the strike activity.
334811-55-vol 109-91
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
propensity on its part to continue, although not necessarily by the same means, to,
defeat self-organization of its employees, it will also be recommended that the
Respondent cease and desist from infringing in any manner upon the employee rights
guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. American Federation of Hosiery Workers, AFL, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Oscar
Harris, thereby discouraging membership in the Union, the Hudson Hosiery Com-
pany (Monroe Road Plant) has engaged in unfair labor practices within the mean-
ing of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of the
rights guaranteed by Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent has not engaged in unfair labor practices as alleged in the com-
plaint by reason of its discharge of Burrell Sams and Henry Moore; nor by reason of
such of the activities alleged in the complaint as independent violations of Section
8 (a) (1) as have not been specifically found above to have been established by the
record.
[Recommendations omitted from publication.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT discourage membership in American Federation of Hosiery
Workers, AFL, or any other labor organization, by discriminating in regard
to the hire or tenure of employment or any term or condition of employment
of any of our employees.
WE WILL NOT in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations,
to join the aforesaid labor organization, or any other labor organization, to,
bargain collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from- any and all such activities, except
to the extent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as authorized
in Section 8 (a) (3) of the Act.
WE WILL offer Oscar Harris immediate and full reinstatement to his former
or a substantially similar position without prejudice to his seniority and other
rights and privileges and make him whole for any loss of pay suffered as a
result of the discrimination against him.
All our employees are free to become, remain, or refrain from becoming or re-
maining members of any labor organization, except as that right may be affected
by an agreement requiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act. We will not discrim-
inate in regard to the 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.
HUDSON HOSIERY COMPANY,
Employer.,
Dated--------=------- By---------------------------------------------(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.