J. P. Stevens Co.

National Labor Relations Board - Board Decisions

Feb 11, 1953

102 N.L.R.B. 1265 (N.L.R.B. 1953)

INDUSTRIAL COTTONY MILLS 1265
regular staff. The number of employees in the unit varies as the
volume of the Employer's production orders changes. The Employer
expects a decline, possibly to the extent of 50 percent of present em-
ployment, starting in March and reaching a low point in June or
July. On the strength of present orders the number of employees will
rise again towards the end of the year. Type of work and job classi-
fications do not change during such variances in overall employment
which are normal at this shipyard. Depending upon the length of
service, laid-off employees retain seniority rights in recall. On these
facts, we find no merit in the Employer's contention that no election
should be held until the low point of employment is reached.,, We
shall therefore direct an immediate election in accordance with Board
policy.
[Text of Direction of Election omitted from publication in this
volume.]
I Owen Steel Co., Inc., 92 NLRB 1334.
INDUSTRIAL COTTON MILLS (DIVISION OF J. P. STEVENS Co.) and TEx-
TILE WORKERS UNION OF AMERICA, CIO . Case No. 11-CA-513.
February 11, 1953
Decision and Order
On November 12, 1952, 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 within the meaning of Section 8 (a) (1) and (3) of the Act,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the Intermediate Report attached
hereto. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendation 2
I Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated Its
powers in connection with this case to a three -member panel [ Chairman Herzog and Mem-
bers Houston and Murdock].
I The Trial Examiner found that the evidence did not support the complaint allegations
of unlawful discrimination as to Dorothy Alton , Thomas Crouch , Naomi Baker, Roy T.
Collins, and Alexander West. As no exceptions have been filed to these findings, we
adopt them pro forma.
102 NLRB No. 126.
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Industrial Cotton Mills
(Division of J. P. Stevens Co.), Rock Hill, South Carolina, its officers,
agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discharging or refusing to reinstate employees in consequence
of or by reason of their participation in lawful strike or concerted
activities, or in any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the right to self-
organization, to form, Join, or assist Textile Workers Union of
America, CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in concerted
activities for the purposes of collective bargaining or other mutual
aid and protection, or to refrain from any or all of such activities, ex-
cept to the extent that such right may be affected by an agreement,
requiring membership in a labor organization as a condition of employ-
ment, as authorized in Section 8 (a) (3) of the Act.
(b) Discouraging membership in Textile Workers Union of
America, CIO, or any other labor organization of its employees, by
discriminatorily discharging or denying employees reinstatement, or
by discriminating in any other manner in regard to their hire or tenure
of employment, or any term or condition of employment.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Offer Matthew C. Stallings and Lewis R. Williams immediate
and full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other rights and
privileges and make them whole in the manner set forth in the section
of the Intermediate Report 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, time cards, personnel records and reports, and all other rec-
ords necessary to analyze the amounts of back pay due under the terms
of this Order.
(c) Post at its plant at Rock Hill, South Carolina, copies of the
notice attached to the Intermediate Report herein and marked "Ap-
pendix A." $ Copies of such notice, to be furnished by the Regional
"This notice shall be amended by substituting for the words "The Recommendations
of a Trial Examiner" in the caption 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 "Pusuant to a Decision and Order " the words "Pursuant
to a Decree of the United States Court of Appeals , Enforcing an Order."
INDUSTRIAL COTTON MILLS 1267
Director for the Eleventh Region, shall, after, being duly signed by
the Respondent's authorized representative, be posted by the Respond-
ent immediately upon receipt thereof in conspicuous places, including
all places where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Eleventh Region, in writ-
ing, within ten (10) days from the date of this Decision and Order,
what steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent discriminated in re-
gard to the hire and tenure of employment of Dorothy Aiton, Thomas
Crouch, Naomi Baker, Roy T. Collins, and Alexander West within
the meaning of Section 8 (a) (3) of the Act.
Intermediate Report
STATEMENT OF THE CASE
Upon a charge filed by Textile Workers Union of America, CIO, herein called
the Union , the General Counsel of the National Labor Relations Board, by
the Regional Director for the Tenth Region ( Atlanta, Georgia ), issued his
complaint , dated May 23, 1952, against Industrial Cotton Mills ( Division of
J. P. Stevens Co.), herein called the Respondent . The complaint alleged in
substance that the Respondent engaged in unfair labor practices within the
meaning of Section 8 (a) (1) and ( 3) and Section 2 (6) and ( 7) of the National
Labor Relations Act, 61 Stat . 136, herein called the Act, in that the Respondent,
on or about August 20 , 1951 , following the termination of a strike , engaged in
by the Respondent 's employees , failed and refused to reinstate to their former
position seven named employees who had unconditionally applied for reinstate-
ment. It is alleged that the seven employees named were denied reinstatement
because they participated in the strike and because they engaged with other
employees in concerted activities for the purposes of collective bargaining and
other mutual aid and protection . In its duly filed answer , the Respondent denied
committing the alleged unfair labor practices.
Pursuant to notice , a hearing was held between August 4 and 6 , 1952 , at Rock
Hill , South Carolina , before Arthur Leff, the undersigned Trial Examiner duly
designated by the Chief Trial Examiner . The General Counsel and the Respond-
ent were represented at the hearing by counsel , and the Union by lay representa-
tives. Full opportunity to be heard, to examine and cross -examine witnesses,
and to introduce evidence bearing on the issues was afforded all parties. At the
conclusion of the General Counsel 's case the Respondent moved to dismiss the
complaint for insufficiency of proof . The motion was denied with leave to renew
at the end of the entire case. Upon renewal , based upon the entire record, ruling
on the motion was reserved . That motion is now disposed of in accordance with
the findings of fact and conclusions of law made below . The Respondent moved
at the end of the case to dismiss the complaint upon the ground that there was
no proof the Respondent had done anything to obstruct interstate commerce.
The motion was denied . A motion by the General Counsel was granted , to con-
form the pleadings to the proof with regard to minor variances . Opportunity
was afforded all parties to argue orally upon the record , and to file briefs and
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proposed findings and conclusions. After the hearing, a brief was received from
the General Counsel.
Upon the entire record in the case and from my observation of the witnesses,
I make the following:
F INDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Virginia corporation, maintains an office and place of busi-
ness at Rock Hill, South Carolina, where it is engaged in the manufacture, sale,
and distribution of cotton textiles. During 1951, a representative period, the
Respondent purchased for use at its Rock Hill plant raw materials, supplies, and
equipment valued in excess of $500,000, of which approximately $250,000 repre-
sented purchases from sources outside the State of South Carolina. During the
same period the Respondent made sales of finished products valued in excess of
$500,000, of which approximately half represented sales and shipments to points
outside the State of South Carolina.
II. THE LABOR ORGANIZATION INVOLVED
Textile Workers Union of America, affiliated with the Congress of Industrial
Organizations, is a labor organization admitting to membership employees of the
Respondent.
HI. THE UNFAIR LABOR PRACTICES
A. Introduction
In 1951, the Union was the recognized collective bargaining agent at the
Respondent's Rock Hill, South Carolina, plant, representing a production and
maintenance unit of 1,057 employees. On April 2, 1951, the employees struck
as a result of a dispute over contract terms. Substantially all unit employees
joined the strike, and for a time the plant was completely shut down. Employees
began to return to work about July 17, 1951, with the resumption by the Respond-
ent of partial operations on one shift. The strike ended about August 20, 1951,
when the bulk of the employees who had not yet returned terminated their strike
activity and applied for their jobs. It is undisputed that the strike was an
economic one, neither induced nor prolonged by employer unfair labor practices.
At the conclusion of the strike, the Respondent'* management officials prepared
a list of some 21 striking employees who were not to be reinstated. It issued
instructions to the plant overseers not to reinstate the listed strikers, but to
reinstate all others. The list, according to the Respondent, contained the names
of those employees who in the opinion of its management officials had engaged in
serious misconduct during the strike, as well as that of one employee who, it is
alleged, was considered physically disabled from continuing his employment.
Except for those listed, the Respondent reinstated or offered reinstatement to all
striking employees. Among those reinstated or offered reinstatement were all,
or substantially all, of the 43 employees who at the time were officers, shop com-
mitteemen, or stewards of the Union.
On September 14, 1951, the Union filed its original charge in this proceeding,
alleging that the 21 employees who had been denied reinstatement were illegally
discriminated against. An amended charge was filed on January 5, 1952, reduc-
ing to 12 the number of those against whom discrimination was claimed. After
investigation, the General Counsel of the Board, on May 23, 1952, caused the
complaint in this proceeding to be issued, naming 7 employees as having been
illegally denied reinstatement.
INDUSTRIAL COTTON MILLS 1269
The Respondent does not contend that any of the 7 now named in the complaint
were replaced during the strike or that jobs were unavailable for them when
they unconditionally applied for reinstatement. As to 6 of them, it defends its
action upon the ground that it had a reasonable basis for belief when it denied
them reinstatement that they had been guilty during the strike of misconduct
justifying their discharge. More specifically, the Respondent claims that 1-
Alexander West-had participated in a dynamiting incident ; that 3-Matthew
C. Stallings, Dorothy Aiton, and Thomas Crouch-had been involved in throw-
ing or setting up tacks and roofing nails on the highway in front of the Respond-
ent's plant entrance ; and that 2-Roy T. Rollins and Naomi Baker-had been
involved in assaults upon employees who had gone to work during the pendency
of the strike. As to the seventh employee-Lewis R. Williams-the Respondent
urges as a defense that he was physically disabled from performing his work.
Apart from the Respondent's alleged illegal refusal to reinstate the named
strikers, the General Counsel makes no contention that the Respondent engaged
in any unfair labor practices within the meaning of the Act. There is thus but
a single issue to be decided: Were the persons named in the complaint illegally
denied reinstatement, and thereby in effect discharged, as a consequence of their
protected strike activities? Or were they validly discharged for other reasons?
Before reviewing the facts of the individual cases, certain preliminary obser-
vations relating to the applicable law and rules of proof would seem in order.
Even where, as here, a strike is not caused by employer unfair labor practices,
the strikers remain employees under Section 2 (3) of the Act. Where not
replaced, they are normally entitled upon abandonment of t_ie it strike activity,
and their unconditional request, to be restored to their prestr ke positions just
as if their work had not been interrupted by the strike. A prima facie case of
Section 8 (a) (1) and 8 (a) (3) violation is made out upon a showing that an
employee whose work ceased as a consequence of a strike was denied his prestrike
job when lie unconditionally applied for it at the end of his strike activity.
For in that posture the presumption is that but for the strike activity the
employee's job status would not have been impaired. It is then for the em-
ployer who would exculpate himself from liability to come forward with evidence
that the employee was denied reinstatement (i. e., discharged) not because of
his strike or other protected concerted activity, but for some other and legitimate
reason. Once that is done, the burden is on the General Counsel to establish
either that the reason assigned was without factual basis, or, even if it had such
basis, that the employer's true motivating reason was the employee's protected
strike activities and not the reason assigned. In the case of an employer
defending on the ground of employee misconduct, the applicable rules of proof,
as recently enunciated by the Board in Rubin Bros. Footwear, Inc., 99 NLRB 610
are as follows :
... the honest belief of an employer that striking employees have engaged
in misconduct provides an adequate defense to a charge of discrimination
in refusing to reinstate such employees, unless it affirmatively appears that
such misconduct did not in fact occur. We thus hold that once such an
honest belief is established, the General Counsel must go forward with
evidence to prove that the employees did not, in fact, engage in such mis-
conduct. The employer then, of course, may rebut the General Counsel's
case with evidence that the unlawful conduct actually did occur. At all
times, the burden of proving discrimination is that of the General Counsel.
B. Refusal to reinstate Alexander West
During the strike there was some dynamiting of nonstrikers' property. West
was among some 10 striking employees arrested for suspected complicity in the
250983-vol . 102-53-81
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dynamiting.' After investigation, West was charged in a warrant issued against
him with conspiracy to dynamite, and was released under $10,000 bail. When he
applied for reinstatement on August 20, 1952, he was informed by his supervisor,
according to his testimony credited in this respect, that he would not be permit-
ted to work there until his "trouble was cleared up." ' Sometime later-in
January 1952-he was tried before a court and jury on the charge for which he
was held, and received a verdict of "not guilty." Following his acquittal, he did
not again, so far as appears, apply for reinstatement.
Plant Manager Tony V. Jackson testified that at the conclusion of the strike
the Respondent's management officials decided not to reinstate West because
of his involvement in the dynamiting plot. Management's knowledge of West's
involvement, he testified, was derived not only from the press publicity given his
arrest, but also from affidavits given by West and others to the police authorities
investigating the dynamiting, affidavits which were brought to management's
attention before the decision not to reinstate him was made. The affidavit given
by West was introduced into evidence by the Respondent. While it does not
show that West engaged in any actual dynamiting, it does reflect that, for a
short time at least, he was a participant in a group of employees who plotted to
engage in such action. In his affidavit West in substance admitted that he had on
one occasion met with several other striking employees who had made plans to
dynamite a nonstriker's car at a fixed early morning hour when other groups were
scheduled to set off dynamite elsewhere ; admitted that sticks of dynamite had
been obtained; admitted that with knowledge of the mission he had then
accompanied others in the group toward the place where they were to set oft
the dynamite; but averred that before the dynamiting plan was effectuated he
had urged the others in his group not to go through with it and had prevailed
upon them to agree. The General Counsel-apart from establishing West's
eventual acquittal on the conspiracy charge for which he was tried-offered no
independent testimony on the question of whether West had engaged in the mis-
conduct for which he was denied reinstatement.
Applying the rules of proof set out by the Board in the Rubin Bros. case,
supra, I am constrained to conclude that the General Counsel has failed to
sustain his burden of proving that the Respondent discriminated against West
because of his union or concerted activities. I think the uncontradicted evidence
adduced through the Respondent's witnesses is sufficient to establish that the
Respondent entertained an honest belief that West was involved to some extent
at least in a violation of law. The Respondent having established such an honest
belief, it was for the General Counsel to come forward with proof that West did
not in fact engage in the misconduct with which he was charged. For that
purpose, proof of the subsequent acquittal was not enough, standing alone.
Nor may such proof be found supplied by West's affidavit which the Respondent
introduced for the purpose of showing on what it relied in forming its judgment.
For, even if the affidavit might properly be considered to have testimonial
value with regard to the truth of its contents, I do not believe it sufficient, alone,
to clear West of the specific charge which was lodged against him-conspiracy
to dynamite. The most it establishes is that West somewhere along the line
suffered a change of heart and did not actually participate in any dynamiting.
And though West's participation in the dynamiting plot may have been slight,
i The others arrested were also denied reinstatement, but, though named in the Union's
original charge, were not included among those alleged in the complaint to have been
illegally denied reinstatement
2 \Vest's supervisor denied making the quoted statement According to him, he told
West that the Respondent could not reemploy West because he had been involved in
wrongdoing and violence
INDUSTRIAL COTTON MILLS 1271
Innocuous, and without evil results, it is not for the Board to say the Respondent
could not properly view it as a dischargeable offense. Certainly, the misconduct
attributed to West cannot be regarded as falling within the permissible bounds
of protected concerted activity. If the reason assigned was the true reason
rather than a pretext for the Respondent's action-and on the record of this case
I am unable to conclude it was not-the Respondent must be exonerated from
liability under the Act.
For the reasons indicated, I find the allegations of the complaint relating to
West not substantiated, and shall recommend their dismissal.
C. Refusal to reinstate Aiton, Crouch, and Stallings
The Respondent defends its refusal to reinstate Dorothy Aiton, Thomas
Crouch, and Matthew C. Stallings, all of whom reported back for work on
August 20, 1951, upon the ground that during the strike they had engaged
in throwing or in setting up tacks in a highway in front of one of its plant gates.
The strikers named denied engaging in the alleged misconduct. The General
Counsel does not dispute that if these strikers in fact engaged in the conduct
attributed to them, it constitued an unprotected activity for which the Respondent
might validly discharge them.
For a period during the strike, tacks and roofing nails were thrown on the street
in front of the plant gate, resulting in a substantial number of punctured tires,
Officers of various law enforcement agencies working in close cooperation with
the Respondent, arranged to have their men stationed at vantage points inside
the plant where, unobserved by pickets outside, they might spy on and ap-
prehend those responsible for the tack throwing. As a result, Aiton, Crouch,
and Stallings were accused by police officers of participating in tack throwing.
Afton and Crouch were formally arrested, taken into police custody, and served
with warrants charging them with the commission of a misdeameanor. Stallings,
while accused and questioned by police outside the plant, does not appear to
have been formally arrested and booked. Nor was he ever served with a warrant,
as were Afton and Crouch. These facts were known to the Respondent when
the employees in question applied for reinstatement. At that time they were
told in substance by their respective supervisors that they would not be permitted
to return to work until they had cleared up the trouble they were in e The mis=
demeanor charge against Crouch was brought to trial after he was denied
reinstatement, and resulted in a mistrial. He was not tried again. Aiton and
Stallings were never tried. In April 1952, orders were issued by the magistrate
in the cases of all three, declaring the cases "ended and dismissed without
prejudice." Following the dismissal, only Aiton reapplied for reinstatemenL
Her application was denied by Plant Superintendent Hartzell, with the state-
ment that he still regarded her guilty of the misconduct with which she had been
charged.
There is no reason to doubt that the Respondent had an honest belief that the
three employees in question engaged in the misconduct attributed to them. The
critical issue is whether the record substantiates a finding, sought by the General
Counsel, that they did not, in fact, engage in such misconduct. Because of the
conflicting testimony, the resolution of that issue turns mainly on questions of
credibility.
The case of Crouch gives me little trouble. Two police officers, Clyde Moody
and James Wilson, testified that after observing Crouch from the plant window
3 This finding is based upon testimony, credited in this respect, of the three employees.
The supervisors testified that they told employees that they could not be put back to work
because they were involved in a misdemeanor.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
setting up tacks on the street, they immediately rushed out and arrested him
while he was still engaged in that conduct. Their testimony with regard to
Crouch was specific and detailed and leaves no doubt in my mind as to the ac-
curacy of their identification. Crouch's denial, oppositely, was wanting in con-
viction, and I do not credit it. Finding, as I do, that Crouch actually engaged
in the misconduct for which he was discharged, I shall recommend dismissal
of the complaint's allegations relating to him.
The case of Aiton is for me a more difficult one. Afton is claimed by the
Respondent to have thrown into the street the tacks which Crouch then pro-
ceeded to set up in a manner the better to puncture tires with. Unlike Crouch,
Afton was not arrested while engaged in the act or immediately thereafter, but
sometime later-according to Afton, whose testimony in this respect was cor-
roborated by another witness, about 35 or 45 minutes after she was last seen at
the intersection where the offense was supposed to have been committed ; ac-
cording to the arresting officers about 5 or 10 minutes after one of them from
his position inside the plant observed her strewing on the street before the
plant gate the tacks which Crouch then proceeded to set up. Of the two police
officers who were engaged in surveillance from the plant window at the time
of the alleged incident, only one, Clyde Moody, testified that he observed Afton
in the act of throwing tacks on the street; the other, James Wilson, testified that
he saw Afton approaching the point where the tacks were thrown, but did not
see her actually engage in the act, explaining that at that particular moment
he was crossing over from one plant window to another. Alton's denial was
corroborated by another witness, Lucille Fields, who testified that she was with
Afton at the time she passed by the plant gate and remained with her until
the time of her arrest, but did not see her throw any tacks on the street. Field's
corroboration was somewhat weakened, however, I thought, by her testimony
that she could not "swear" that Afton did not throw any tacks, only that she
did not see her do so. From my observation of the witnesses for the General
Counsel and the witness for the Respondent, it was difficult for me to tell
which, if any, was falsifying ; nor did cross-examination prove of much aid in
that connection. Certainly there was nothing in the demeanor of the Re-
spondent's witness, Moody, nor is there anything in his testimony from which
it can be concluded with a reasonable degree of assurance that he was not stat-
ing the truth as he saw it. The possibility does exist, of course, that Aiton
may have been the victim of an honest but mistaken identification on Moody's
part. But, if that were so, it was for the General Counsel, upon whom the
burden lay, to prove it. In this, however, he did not succeed, nothwithstanding
-vigorous cross-examination directed toward that end. As it was the General
Counsel's burden to disprove affirmatively the alleged misconduct, and as he
failed to do so by establishing that credence should be given the denial of
misconduct by his witnesses rather than the assertion of it by the witness for
the Respondent, I am led to the conclusion that there was a failure of proof
with regard to the allegations of the complaint concerning Afton. Dismissal of
those allegations will conequently be recommended.
The case of Stallings is the only one of the three in which I am fully convinced
upon the basis of my appraisal of the testimony and observation of the witnesses
that the General Counsel sustained his burden of proving that the alleged mis-
conduct did not in fact occur. Two witnesses, Clarence Arve and James Wil-
son, both law enforcement officers, testified concerning Stallings. Arve testified
that on July 13, 1951, he and Wilson stationed themselves inside the plant to
observe the street outside the plant gate where a group of 15 or 20 people were
assembled, scattered about the street . At about the time he arrived or shortly
INDUSTRIAL COTTON MILLS 1273
afterwards he noticed Stallings in the group. About a half hour later, accord-
ing to his testimony, he observed Stallings step off the curb a pace or two, throw
a handful of tacks on the street, and then return to the curb where he had been
standing. Wilson's account of what he saw was generally vague, and to the
extent that it was specific, was inconsistent with that of Arve. According to
Wilson, he noticed Stallings crossing the street, and as he was crossing, throw
out some tacks Stallings categorically denied he threw any tacks. His testi-
mony was corroborated by Lucy Jane Starnes, a disinterested witness not con-
nected with the strike. Starnes testified she was standing across the street from
Stallings for about a half hour immediately before he was picked up for ques-
tioning, he saw him neither come out on the street nor throw any tacks. As
noted above, Stallings, although questioned outside the plant by the police officers
and accused of throwing tacks, was not formally arrested and taken to the police
station as were Alton and Crouch. For these and other reasons, I thought
Stallings testimony probable, that when accused by the police officers of throw-
ing tacks, he denied doing so, and Arve's testimony improbable, that Stallings
told Arve he threw the tacks because he wanted to stop people from working
in the mill.4 It appears from Stallings testimony, which was not specifically
denied in this respect and is credited, that the police officers questioned him not
only as to whether he had thrown the tacks, but also as to whether he had ob-
served them thrown by another in the crowd outside the plant.
Stallings by his overall testimony and demeanor impressed me as a forth-
right witness. As noted, Wilson's testimony concerning Stallings was not only
vague, but in at least one very material respect was inconsistent with that of
Arve. Arve, while testifying, showed a tendency to add what I thought imagina-
tive embellishments to his story to strengthen the Respondent' s case." His over-
all testimony and demeanor was not such as to invite credence. My general im-
pression, buttressed in large part by the police officers' failure to place Stallings
under formal arrest, by their questioning him as to whether another might
not have thrown the tacks, and by the variances of their accounts of what they
observed, is that they themselves were uncertain at the time they apprehended
Stallings as to the correctness of their identification of him as the guilty per-
son. Upon all the evidence, and my appraisal of the credibility of the witnesses,
I am persuaded Stallings told the truth. I accept his testimony in full, reject-
ing the testimony of the Respondent's witnesses inconsistent therewith, I find
that Stallings did not in fact engage in the misconduct attributed to him.
It is concluded and found that, by failing and refusing to reinstate Matthew
C. Stallings to his former or substantially equivalent position of employment,
the Respondent violated Section 8 (a) (1) and 8 (a) (3) of the Act°
4 Significantly, Arve's testimony to that effect was given on cross-examination and not
brought out on direct , and, moreover, was not corroborated by Wilson. It seems unlikely
to me that if such an important admission had in fact been made it would not have been
communicated to the Respondent and by it brought out at the hearing.
One such example is referred to in the preceding footnote . Another, was his testimony
on cross-examination, not brought out by direct examination nor corroborated by Wilson,
that immediately before Stallings threw the tacks he observed a stranger hand something
to Stallings . That testimony was given after Arve had admitted seeing Stallings in the
crowd for a substantial period of time before the tack -throwing incident is supposed to
have occurred, and left me with the impression, while he gave it, that it was contrived to
explain away what Arve at the time considered a weakness in his story.
In reaching this conclusion , I have not overlooked the Respondent 's contention that
even if Stallings did not engage in the conduct attributed to him, the Respondent's good-
faith belief that he did , coupled with the absence of proof of motive on its part to retaliate
against him because of his union membership and activities , must be viewed as exculpating
it from liability. Established Board precedent is, of course , to the contrary . See Rubn
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Refusal to reinstate Baker and Rollins
The Respondent defends its refusal to reinstate Naomi Baker and Roy T.
Rollins, upon the ground that during the strike they had committed acts of
violence upon nonstrikers away from the picket line. Warrants charging each
of them with assault had been served upon them during the course of the strike.
When they applied for reinstatement they were told, according to their testimony
credited in this respect, although denied by the Respondent's witnesses, that
they would not be reinstated until their "trouble" was cleared. The assault
charges against them have never been brought to trial.
With regard to Baker, the facts are not substantially in dispute. Shortly
after the plant resumed partial operations about July 17, 1951, Baker accosted
Heddy Vincent, an employee who had returned to work, on a street several
blocks away from the plant. Baker berated Vincent for returning to work while
other employees remained out on strike, accused her of having acted in bad
faith by accepting rent money and groceries from the Union a day or so before
and then returning to work, and generally sought to shame her into remaining
out with the bulk of the employees. Vincent defended her position on the
stated basis of economic necessity and her right as an individual to work if
she wanted to. In the argument which ensued, Baker threatened to whip
Vincent. To that Vincent replied that Baker could do so if she wanted to,
that she would not fight back. There was some talk about going to the union
hall to discuss the subject further. Then, as Vincent sought to walk by, Baker
blocked her path, turned her about, and slapped her face twice, apparently not
very hard. At that point, Baker asked Vincent whether she intended to report
for work the following morning. When Vincent refused to say, Baker held
her for a time, saying she would not let her go until she answered, and then
slapped her again, this time harder, remarking that that blow was for the
morning if she went to work. Vincent went to work the next day, reporting
the incident to management. At the suggestion of the Company's attorney, she
swore out a warrant for Baker's arrest.
With regard to Rollins, there is a sharp conflict in testimony as to the details
of what occurred, but I am satisfied on all of it that Rollins engaged in an un-
provoked assault upon a nonstriker, Elbert Henderson.
This is Rollins' version : One evening about 3 weeks before the end of the strike,
he attended a ball game at the local park. Henderson was seated about 5 places
Brothers Footwear, Inc., supra. But even assuming arguendo that the questions of good
faith and motive are relevant at all, they can only be relevant to the issue of whether the
Respondent violated Section 8 (a) (3), not to the issue of the Respondent's violation of
Section 8 (a) (1). Sections 7 and 13 of the Act clearly protect employees in their right
to strike. If that right is to mean anything, it must mean that an employee who engages
in a legal strike, and who has not-where the strike is an economic one-been replaced,
must as a matter of law be entitled to reclaim his job at the end of a strike-unless, of
course he has himself forfeited his right to statutory protection by engaging in miscon-
duct for which he is discharged. For an employer to deny reinstatement to an employee
who has not himself forfeited that right, is for him, without more, to engage in an inter-
ference with and restraint of that employee's statutorily protected right. And since it is
thus a per se violation of Section 8 (a) (1), it is immaterial that the employer's action
was not motivated by union animus or ill intentions. Cf. N. L. R. B. v. Le Tourneau Com-
pany, 324 U. S. 793, 797, Republic Aviation Corp. v. N. L. R. B., 234 U. S. 793 ; N. L. R. B.
v. Gluck Brewing Co., 144 F. 2d 847 (C. A. 8) ; Home Beneficial Life Insurance Co. v.
N. L. R. B., 174 F. 2d 62 (C. A. 4). So far as the remedy is concerned, it is, of course,
immaterial that the discharge may be regarded solely as a violation of Section 8 (a) (1)^
rather than as a violation of Section 8 (a) (3), or of both. In any event the necessary
order to effectuate the policies of the Act would be to require reinstatement and back pay
for the discharged employee, as provided in "The Remedy " section below.
INDUSTRIAL COTTON MILLS 1275
removed. During the game, the 2 engaged in an argument,' in the course of which
Rollins criticized Henderson for working while employees were on strike. As
they were outside the ball park approaching their cars after the game, Rollins
noticed Henderson place his hand in his pocket, concluded that he was reaching
for his knife, and "let him have it," dropping him to his knees . Henderson arose
with a knife in his hands and gave chase to Rollins. Shortly thereafter, Rollins
was arrested for assault, and released on $30 bond.
This is Henderson's version : When he left the plant that day, unidentified
pickets threatened to "get" him at the ball game that night. He went to the game
nevertheless. He did not see or speak to Rollins at the game. After the game,
as he was going toward his car parked some 250 yards from the ball park, he
observed Rollins and another employee following him. Nothing was said. He
stepped between two parked cars to reach his own, placing his hand in his pocket
for his car keys. Just then he received a blow at the back of his neck, that felt
like a blackjack but might have been a fist, and was driven to the ground. He
arose, removed his knife, opened the small blade, and began to pursue Rollins
who was running from him.
Whichever version is accepted it is clear, of course, that Rollins physically
struck down Henderson. The only conflict it is material here to resolve is whether
Rollins acted in self defense, as he says, or without provocation, as Henderson
says. To support Rollins' assertion, it would be necessary to find that Rollins
reasonably construed Henderson's gesture into his pocket as one designed to
reach a knife with which to attack him. I do not think such a finding is war-
ranted. It does not appear from Rollins' own testimony that Henderson had
previously threatened to assault him. Moreover, Rollins admitted on cross-
examination that he and Henderson had engaged in no conversation whatever
after they left the ball park. In these circumstances it is difficult for me to under-
stand why Rollins should have assumed that Henderson was reaching for a knife
when he reached into his pocket. I am inclined rather to the view that this came
to Rollins as an afterthought, suggested by Henderson's conduct which followed
the blow. On all the evidence, I find that Rollins engaged in an unprovoked
assault upon Henderson.
Baker's action in slapping Vincent, and Rollins' in striking Henderson, con-
stituted, I find, conduct outside the permissible bounds of protected concerted
activity. It was conduct, therefore, for which the Respondent might validly
discharge or refuse to reinstate these employees, if in fact that was the basis
and not the pretext for its action. The cases relied upon by the General Counsel,
in which distinctions are drawn between serious and minor strike misconduct
are inapposite.' These are cases where the issue before the Board was not, as
here, whether the misconduct engaged in was such as to provide a legitimate
basis for discharge. They involve rather the different issue of whether em-
ployees, found by the Board to have been illegally discriminated against, should,
nevertheless, be barred from the normal remedies of reinstatement and back pay.
Where the issue is one of remedy, the applicable standards are not the same
as where the issue is whether the misconduct, on which the employer originally
' Henderson 's testimony as to original cause of the argument is inconsistent. At one
point, he testified that the argument had its origin in a dispute on the playing field. At
another , he testified that the argument had nothing to do with that dispute.
e The General Counsel cites Dalton Telephone Company , 82 NLRB 1001, which appears
to bear a resemblance to the Baker case, but only on a superficial reading, and also Kanaas
Mslling Company, 86 NLRB 925, and Horn Manufacturing Company , 83 NLRB 1177.
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rested the discharge or refusal to reinstate, is protected or unprotected under the
Act.`
Unless, therefore, the record can be said to justify a finding that the Respond-
ent's true motivation for denying these employees reinstatement was rooted not
in their misconduct but in their concerted activities, the Respondent's defense
must be upheld. In an attempt to justify such a finding, the General Counsel
sought at the hearing to establish (1) that the Respondent did not normally
visit disciplinary action upon employees who engaged in like misconduct away
from the plant; and (2) that in determining who should or should not be rein-
stated the Respondent followed disparate policies toward strikers as opposed to
nonstrikers who during the strike had also engaged in acts of violence. On the
first point there was a complete failure of proof. The General Counsel came for-
ward with no evidence to show the Respondent had in the past followed a fixed
policy of disregarding acts of violence by its employees occurring away from the
plant. Such testimony as there is on that point is to the contrary. Plant Man-
ager Jackson testified that, although the Respondent had no fixed policy on that
point, the position it normally would take would depend on the nature of the
misconduct-if the misconduct was such as to interfere with plant operations, or
was designed physically to coerce employees to refrain from working, it would
undoubtedly be deemed a dischargeable offense. On the second point, the Gen-
eral Counsel sought to establish disparity of treatment by pointing to two inci-
dents where nonstriking employees had been retained in the Respondent's em-
ploy, although they had engaged in gun play during the strike. One concerned
an employee, John Horn. As to him, the testimony I credit shows that late one
night a group of striking employees came by Horn's house evidently bent on creat-
ing a disturbance, that a firecracker was exploded outside his house, and that
Horn, hearing the explosion and fearing an attempt to dynamite his house, be-
came unnerved and rushed outside, discharging a shotgun, the pellets of which
struck several members of the strikers' group. The other incident concerned
an employee, Walter Hinson, who had been hired during the course of the strike.
As to him, the testimony I credit shows that Hinson, while driving with his
daughter in a car along a public street past a striker's home, found his car
pelted with rocks and eggs, whereupon Hinson removed a pistol from the seat
of his car, aimed it generally in the direction of the striker's yard where children
were playing, and discharged it, without, however, hitting anyone. Both Horn
and Hinson were arrested upon warrants sworn out against them, but were re-
leased on bail provided by the Respondent. The charges against them were still
pending undetermined at the time of the hearing. The Respondent justified the
alleged disparity of treatment between Baker and Rollins, on the one hand, and
Horn and Hinson, on the other, by drawing a distinction between employees who
engaged in unprovoked acts of violence designed to interfere with plant opera-
tions, and employees who, to defend their homes and persons, reacted violently
to attacks upon them. On the evidence before me, I cannot say that the Respond-
ent did not honestly believe that Horn and Hinson were acting in self-defense.
And for that reason, I am unable to conclude that the distinction the Respondent
drew was bottomed upon considerations that were illegally discriminatory within
the meaning of the Act.
On all the evidence, I find that the allegations of the complaint relating to
Baker and Rollins have not been substantiated and shall recommend their
dismissal.
9 For a good discussion of that subject see The W. T. Rawleigh Company, 90 NLRB 1924,
at 1967, etc.
INDUSTRIAL COTTON MILLS 1277
E. Refusal to reinstate Lewis R. Williams
According to Plant Manager Tony V. Jackson, Lewis R. Williams was denied
reinstatement because he was physically disabled from performing his work
and because of a bad absentee record flowing from that disability.
Williams, a card grinder, was employed by the Respondent since 1940.
Throughout that period he suffered from a chronic arthritis ailment which he
first incurred some years before obtaining employment with the Respondent. In
1942 he was out 2 months, and in 1944, 5 months, because of that condition.
From 1946 to 1951, he lost a total of 19 days working time. In January 1951,
with the consent of the Respondent, he entered a hospital to receive cortisone
treatments. After 26 days confinement in the hospital he returned to work
about February 19, 1951, and thereafter lost no working time until the strike
began on April 2, 1951.
Williams joined the strike at its beginning. In July 1951, when the Respondent
decided to resume partial operations, it sent a letter to Williams asking him
to return to work. Williams elected, however, to remain out until the end of
the strike.
When the strike ended on August 20, 1951, Williams reported for work. As
appears not only from Williams' testimony, but from the credited testimony of
Dr. Grover C. Sheppard, who was treating him at that time, Williams was then
in better physical condition to perform work than he was before the strike.
Nevertheless, Williams was not reinstated upon reporting for work. He was
told by J. W. Hampton, general overseer of carding, that it would be necessary
for him first to report for a physical checkup. Williams was the only one of
the striking employees upon whom that requirement was imposed. As carding
overseer, Hampton was vested with broad authority to determine who was quali-
fied to work under him. And on past occasions when Williams had been absent
on account of illness, Hampton, alone, had been the one to decide whether Wil-
liams should be restored to his job. But on this occasion the decision was
admittedly not Hampton's. Hampton received specific instructions from higher
management concerning Williams at the same time he was given instructions
with regard to the employees the Respondent had decided not to reinstate because
of strike misconduct.
Williams was referred for his checkup to Dr. William F. Strait, a physician
the Respondent retained on a regular basis. As Dr. Strait was then absent
on vacation Williams was examined instead by Dr. Strait's office associate, Dr.
Blackman. Dr. Blackman advised Williams not to work for 2 weeks. Two
weeks later, Dr. Strait returned from his vacation and examined Williams.
Dr. Strait's only comment to Williams was that he would take up his findings
with Superintendent Hartzell and see what the Company wanted to do about
it. Williams then again called at the Respondent's office, where he once more
requested, but was denied, reinstatement.
Dr. Blackman was not called as a witness, and the record contains no evidence
of the findings made by him as to Williams' physical condition. Nor is there
evidence that he ever communicated his findings to the Respondent. The re-
port made by Dr. Strait to the Respondent, on September 7, 1951, is in evidence,
and gives the following diagnosis of Williams' condition :
Blood pressure 140 over 95, moderate hypertrophy involvement of all joints.
Hyperteglia arthritis. Worst left ankle . Urine Neg.
With regard to the probable length of the disability, Dr. Strait's report states,
"Permanent-substantial total." By that, Dr. Strait testified he meant that in
his opinion Williams' condition would never improve and that Williams was
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"substantially totally disabled from any heavy work." Dr. Strait admitted
while testifying that he did not know, and had not been informed, of the
kind of work Williams had been performing at the mill. His report does not
comment on whether Williams was fit for such employment, and, as appears
from his testimony, he never otherwise informed the Respondent that Williams
was unfit to perform the particular job he had worked on before the strike. Dr.
Strait admittedly had not previously examined Williams for several years, and
hence was in no position to draw a comparison between his relative ability
to perform his job at the beginning and at the end of the strike. There is
nothing in his testimony, nor in any other evidence offered by the Respondent,
to impair Dr. Sheppard's testimony supporting the finding, here made, that
Williams at the end of the strike was better able physically to perform his occu-
pational duties than he was at its beginning.
Thus, the testimony of Plant Manager Jackson, given as an adverse witness
at the beginning of the hearing, that Williams was denied reinstatement because
of physical disability to perform his prestrike job duties fails to withstand
scrutiny as a plausible and legitimate explanation for the Respondent's action.
The additional suggestion in his testimony, given at that time, that the Re-
spondent was influenced in part by Williams' past absentee record stands in
no better posture to
In the course of the presentation of its own case, the Respondent altered the
slant of its defense to place main reliance upon another ground, not specified
by Jackson when he testified as an adverse witness. That was developed solely
through the testimony of J. W. Hampton, who admittedly was not part of the
higher management group by whom the decision with regard to Williams was
made, and who, thus, at best, could have only hearsay knowledge on that point.
The ground upon which Hampton sought to justify the Respondent's failure
to reinstate Williams was that a change in operational procedures in the carding
room, resulting from the introduction of new machinery, made it no longer
possible for the Respondent to continue Williams in its employ after the strike.
According to Hampton, Williams, due to his physical condition, had been unable
for some time before the strike to perform certain heavy operations normally
required of card grinders in connection with the maintenance of their machinery.
Because the Respondent's management felt generously disposed toward Williams
and desired to accommodate him, it had made special arrangements to have his
work coupled for certain purposes with that of another card grinder who, when
required, took over Williams' heavy work, while Williams performed lighter
operations on the other's cards. That arrangement, Hampton admitted, had
not been objected to by the other card grinder, and resulted in the same quantity
of production as if Williams and the other card grinder had each separately
performed all operations on their respective equipment. Shortly before the strike
began, however, the Respondent installed new carding machinery. The installa-
tion of the new machinery, Hampton would have it believed, made it necessary
from an operational point of view to discontinue coupling the work of 2 card
grinders, and to require each card grinder separately to maintain and grind his
own cards.
11 As the facts recited above show, Williams' attendance record during the 5 years pre-
ceding the strike was excellent , except for his 26 days hospital confinement in late January
and early February 1951 . After that absence, which was with the Respondent 's consent,
the Respondent had willingly returned Williams to its employ , and his attendance since
that time, except , of course , during the period of the strike , had been perfect , giving the
Respondent no possible cause for complaint on that ground.
INDUSTRIAL COTTON MILLS 1279
Hampton's testimony, to the extent it would explain the discontinuance
of Williams' employment on the basis of a general change in job procedures
necessitated by the installation of new carding machinery, proved entirely
unconvincing when subjected to cross-examination. The new machinery,
Hampton admitted, was in addition to and not in replacement of the old. and
was of the same type. It was installed as part of an expansion program
to allow an additional card grinder to be employed on each shift. There was
to be no change in the method of operation or in the number of cards on which
each card grinder was to work. Hampton pointed, it is true, to the supervisory
desirability with an increased working force of having each card grinder sepa-
rately accountable for the maintenance and operation of his own cards. But
this did not require a general procedural change, for, as Hampton's cross-
examination discloses, such separate accountability had been the prevailing
practice even before the strike, save only for the special arrangement the
Respondent had made for Williams. Upon analysis, it is thus apparent that
the changed job procedures of which Hampton speaks amounted to no more
than a decision by the Respondent to withdraw special working conditions
and privileges Williams had been allowed before the strike.
As a striker, Williams continued to remain an employee of the Respondent
within the meaning of the Act. Upon his unconditional application at the
end of the strike he was in law entitled to reinstatement to his prestrike
position without prejudice to the rights and privileges he had theretofore
enjoyed. Williams' legal right to retain and require reinstatement to his
prestrike employee status was subject to defeasance only under restricted
circumstances The right might have been lost if his job were no longer
open by reason of its having been filled by a permanent replacement hired
during the strike. The right might have been forfeited if during the strike
he had engaged in misconduct for which he was discharged or denied reinstate-
ment on a nondiscriminatory basis. The right could not be exercised if by
reason of intervening physical disability or the like, for which the Respondent
would have discharged him even if his work had not been interrupted by the
strike, he had become since the beginning of the strike personally disqualified
to perform his prestrike job duties. Nor could it be exercised if, because of
normal economic considerations, uninfluenced by the strike or his strike activity,
the Respondent had discontinued his prestrike job.
In this case, it is not claimed that Williams was replaced or that he committed
a dischargeable offense. It is claimed, however, that because of intervening
physical disability, Williams at the conclusion of the strike was no longer
qualified to perform his prestrike job duties. That was the Respondent's
original position. But, as noted, to this was added daring the course of the
hearing the further, and, it would seem, inconsistent contention, that, although
Williams' physical condition remained unchanged, his prestrike job was no
longer available because of a change in job content motivated by economic
considerations.
As for the Respondent's original contention, this has already been found
factually unsupported, largely on the basis of the credited testimony showing
that Williams' physical ability to perform his work was, if anything, improved
at the end of the strike. It is unnecessary in this case to decide whether,
though factually unsupported, an honest belief on the Respondent's part that
Williams since the strike had become physically disabled from performing his
prestrike duties would have provided it with a good defense. For, I am satisfied
on all the record that the Respondent's determination to single out Williams
for special treatment , in requiring him to undertake a physical examination
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as a condition of reinstatement, was not inspired by any such belief. The
Respondent adduced no evidence to show that during the strike information
had come to it indicating Williams' condition had deteriorated. It is undis-
puted that during the strike there had been no contact between management
personnel and Williams, and there could thus have been no reason for the
Respondent suddenly to conclude that Williams might no longer be able to
perform his former duties. Significantly, the determination not to reinstate
Williams unconditionally was made before he reported for work. And it was
made, not by the supervisor who normally would have been the one to determine
whether Williams was still qualified for his position, but by a committee of
higher management while engaged in determining what employees should be
denied reinstatement for activities in which they engaged during the period of
the strike.
As for the Respondent's further contention, the test to be applied is this :
Would the Respondent, but for the strike and Williams' participation in it,
have altered the job content of Williams' job and discharged him for inability
to perform it in its altered form? On all the evidence, I am satisfied it would
not. Although aware of Williams' physical condition for many years, the
Respondent had not only tolerated it, it had generously provided a special
working arrangement under which Williams could continue to work. That
arrangement had resulted in no loss of production to it, and, although perhaps
imposing an additional burden upon a fellow employee, had not been objected
to by him. Until Williams went on strike, the Respondent had given him no
indication of any desire to alter that arrangement. The reason the Respondent
assigned at the hearing for altering the content of Williams' job while he was
out on strike-the installation of new machinery-has been found implausible
and is not credited. It is noteworthy that the new carding machines, according
to Hampton, were installed a week or two before the strike. Yet Williams
was invited to return to work when plant operations were resumed 3 months
after the strike began.
Admittedly, it was not until after Williams declined that invitation, and chose
to remain out with his fellow strikers, that the Respondent reached its final
determination not to reinstate him. Under all the circumstances, it is only
reasonable to infer, and I find, that the Respondent's switch in attitude toward
Williams and its decision to revoke the special working conditions theretofore
allowed him and to require him as a condition to reinstatement to pass a fiscal
examinatinon for work it already knew he could not perform, was rooted in the
Respondent's resentment of Williams' failure to reciprocate, when the Respond-
ent needed his aid, the generous consideration and treatment the Respondent
had bestowed upon him in the past. Understandable though the Respondent's
reaction may have been from its point of view, if represented, nonetheless, an
infringement of Williams' rights under the Act. Upon the record as a whole,
I conclude and find that by failing to reinstate Williams on and after August
20, 1951, the Respondent violated Section 8 (a) (1) and 8 (a) (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Such of the activities of the Respondent set forth in section III, above, as
have herein been found to constitute unfair labor practices, occurring in con-
nection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic , and commerce
among the several States and tend to lead to disputes burdening and obstructing
commerce and the free flow of commerce.
INDUSTRIAL COTTON MILLS
V. THE REMEDY
1281
Having found that the Respondent engaged in certain unfair labor practices,
it will be recommended that the Respondent be ordered to cease and desist there-
from and take certain affirmative action in order to effectuate the policies of
the Act.
It has been found that the Respondent violated Section 8 (a) (1) and (3)
of the Act by failing and refusing on and after August 20, 1951, to reinstate
Matthew C. Stallings and Lewis R. Williams to their former or substantially
equivalent positions . It will therefore be recommended that the Respondent
offer each of them immediate and full reinstatement to his former or a substan-
tially equivalent position;' without prejudice to his seniority or other rights
and privileges, and make each of them whole for any loss of pay suffered as a
result of the discrimination, by payment of a sum of money equal to the amount
each would have earned from August 20, 1951, the date of the illegal refusal to
reinstate, to the date of the offer of reinstatement, less his net earnings 32 to be
computed on a quarterly basis in the manner established by the Board in F. W_
Woolworth Company, 90 NLRB 289, 291-4. Earnings 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 checking of back pay-
due.
With regard to Williams, certain additional comments are in order. As has
been found on the basis of Dr. Sheppard's credited testimony, Williams was in
better physical condition to perform his prestrike job duties on August 20, 1951,
when he was illegally denied reinstatement, than he was at the beginning of
the strike. As further appears from Dr. Sheppard's testimony, however, Wil-
liams' physical condition at the time of the hearing was worse than it had been
on August 20,1951. On that point, Dr. Sheppard testified :
[Williams] is back now [at the time of the hearing] in worse shape than
he was at that time [August 20, 1951] for the simple reason he has not been
able to buy his cortisone, had he been able to afford his medication, I think
he could have maintained the gain that he had at that particular time.
In directing the normal remedy of reinstatement as well as back pay for Wil-
liams, I have not overlooked the possibility that Williams' physical condition
today may be such as to make him unfit to perform his job duties as they ex-
isted before the strike. That possibly does not, however, negate the unfair labor
practice committed by the Respondent on August 20, 1951, when it has been
found Williams was fit to resume his prestrike job duties. The policies of the Act
would be thwarted if the Respondent is excused of the duty of remedying the
unfair labor practice found, by at least offering Williams unconditional reinstate-
ment and reimbursing him for wage losses up to the time that offer is made. At
the same time , it should be made clear that the reinstatement order is not in-
tended to prevent or interfere with the normal exercise by the Respondent of
its right to discharge its employees for any legitimate cause. If, upon Williams'
reinstatement, the Respondent finds that Williams' physical condition renders
him unfit for work under conditions of employment that would have been open
to Williams on a nondiscriminatory basis, it may terminate his employment. In
that connection, it may be noted that even if Williams' physical condition were
11 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
12 Crossett Lumber Company, 8 NLRB 440 , 447; Republic Steel Corporation v N L. R B.,
311 U. S. 7.
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to render him unfit for the position held by him before the strike or for any sub-
stantially equivalent position, the Respondent may nevertheless wish to retain
him in its employ by transferring him to other work for which he may be quali-
fied. The Board's sole concern is that the Respondent's treatment of Williams
not be discriminatory or otherwise violative of his rights as an employee under
the Act. Any attempt by the Respondent to terminate Williams' employment will
be carefully scrutinized to insure that the Respondent's action was not induced
by his union or concerted activities. See Salmon and Corwin, Inc., 57 NLRB 845,
enfd. 184 F. 2d 941 (C. A. 5), cert. den. 326 U. S. 758.
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. Textile Workers Union of America, affiliated with the Congress of Indus-
trial Organizations, is a labor organization within the meaning of Section 2 (5)
of the Act.
2. By failing and refusing on August 20, 1951, and thereafter, to reinstate
Matthew C. Stallings and Lewis B. Williams to their former or substantially
equivalent positions of employment, following the termination by them of their
strike activities and their unconditional application for reinstatement, the Re-
spondent interfered with, restrained, and coerced their employees in the exercise
of the rights guaranteed in Section 7 of the Act, and thereby has engaged in and
ie engaging in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
3. By discriminating with regard to the hire and tenure of employment of
Matthew C. Stalling and Lewis R. Williams, thereby discouraging membership
in Textile Workers Union of America, CIO, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (3) 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.
ii. The Respondent has not engaged in unfair labor practices as alleged in the
complaint by its failure and refusal to reinstate Dorothy Afton, Thomas Crouch,
Naomi Baker, Roy T. Rollins, and Alexander West.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE To ALL EMPLOYEES
pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discharge or refuse to reinstate employees in consequence
of or by reason of their participation in lawful strike or concerted activities,
or, in any like or related manner, interfere with, restrain, or coerce our
employees in the exercise of the right to self-organization, to form, join,
or assist TEXTILE WORKERS UNION OF AMERICA, CIO, or any other labor
organization, to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purposes of collective
bargaining or other mutual aid and protection, or to refrain from any or
SIMPLICITY PATTERN COMPANY, INC. 1283
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 condi-
tion of employment as authorized in Section 8 (a) (3) of the Act.
WE WILL NOT discourage membership in TEXTILE WORKERS UNION OF
AMERICA, CIO, or any other labor organization of our employees, by discrimi-
natorily discharging or denying reinstatement to our employees, or by
discriminating in any other manner in regard to their hire or tenure of
employment or any term or condition of employment.
WE WILL OFFER Matthew C. Stallings and Lewis R. Williams immediate
and full reinstatement to their former or substantially similar positions
without prejudice to their seniority and other rights and privileges and
make them whole for any loss of pay suffered as a result of the discrimina-
tion against them.
All our employees are free to become, remain, or refrain from becoming or
remaining, members of TEXTILE WORKERS UNION OF AMERICA, CIO, or any other
labor organization, except as that right may be affected by an agreement re-
quiring membership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act. We will not discriminate 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.
INDUSTRIAL COTTON MILLS
(DIVISION OF J. P. STEVENS CO.)
Employer.
By ---------------------------------
(Representative ) ( Title)
Dated---------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
SIMPLICITY PATTERN COMPANY , INC. and CHICAGO STEREOTYPERS'
UNION, LOCAL No. 4, INTERNATIONAL STEREOTYPERS ' AND ELECTRO-
TYPER,' UNION, AFL. Case No. 7-CA-665.-February 11, 1953
Decision and Order
On August 19, 1952, Trial Examiner John H. Eadie issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices in violation of Section 8 (a) (5) and 8 (a) (1) of the
National Labor Relations Act, and recommending that the Respondent
cease and desist therefrom and take certain affirmative action as set
forth in the copy of the Intermediate Report attached hereto. There-
after, the Respondent, the General Counsel, and the charging Union
filed exceptions to the Intermediate Report and the Respondent and
the General Counsel filed supporting briefs.
102 NLRB No. 125.