J. P. Stevens Co., Inc.

National Labor Relations Board - Board Decisions

Dec 29, 1952

101 N.L.R.B. 1475 (N.L.R.B. 1952)

REPUBLIC COTTON MILLS 1475
refrain from any or all such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8 (a) (3) of the
Act.
All our employees are free to become or remain members of any labor organiza-
tion or to refrain from so doing, except to the extent that this right may be
affected by an agreement in conformity with Section 8 (a) (3) of the amended
Act. We will not discriminate in regard to the hire or tenure of employment or
any term or condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
Dated --------------------
F. W. WOOLWORTH CO.,
Employer.
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.
REPUBLIC COTTON MILLS ( DIVISION OF J. P . STEVENS COMPANY, INC.)
and TEXTILE WORKERS UNION OF AMERICA , CIO. Case No. 11-CA-
512 (formerly 10-CA-1267). December 29, 1952
Decision and Order
On August 28, 1952, Trial Examiner Eugene F. Frey issued his
Intermediate Report, a copy of which is attached hereto, in the
above-entitled proceeding, finding that the Respondent Republic Cot-
ton Mills (Division of J. P. Stevens Company, Inc.) has not engaged
and is not engaging in unfair labor practices within the meaning of
Section 8 (a) (1) and (3) of the Act, as alleged in the complaint,
and recommending that the complaint be dismissed in its entirety.
Thereafter, the Union filed exceptions to the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog and Members
Murdock and Peterson].
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. ' The Board has considered the Intermediate
Report, the Union's exceptions, and- the entire record in the case.
We hereby adopt the findings, conclusions, and recommendations of
the Trial Examiner.
Order
IT IS HEREBY ORDERED that the complaint be, and it hereby is, dis-
missed in its entirety.
101 NLRB No. 233.
242305-53- --94
v
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
This case arises on a complaint issued January 31, 1952; by the General
Counsel of the Board, through the Board's Regional Director for the Tenth Region
(Atlanta, Georgia), against Republic Cotton Mills, herein called the Respondent,
which alleged that Respondent discriminatorily discharged Charles L. Morgan
on or about February 3, 1951, and failed to reinstate him, in violation of
Section 8 (a) (3) and (1) and Section 2 (6) and (7) of the National Labor
Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the
complaint, charge, and notice of hearing thereon, were duly served upon Respond-
ent and the Union. Respondent's answer admitted the jurisdictional allega-
tions of the complaint and the discharge of Morgan, but denied the commission
of any unfair labor practices.
Pursuant to notice a hearing was held in Lancaster, South Carolina, on
February 25, 1952, before the undersigned Trial Examiner, in which all parties
participated, were represented by counsel or other representative, and were
afforded full opportunity to be beard, to examine and cross-examine witnesses,
to introduce evidence bearing on the issues, to present oral argument, and
file briefs, proposed findings of fact, and conclusions of law. The General Counsel
and Respondent's counsel presented oral argument on the record, but no briefs,
proposed findings, or conclusions of law have been filed.
At the close of General Counsel's case, Respondent rested its case without
calling witnesses or introducing evidence in support of its answer, electing to
rely solely on its motion to dismiss the complaint on the ground that General
Counsel had failed to prove a prima fame case. Decision on that motion was
reserved; it is now granted for the reasons set forth in this Report. During
the oral argument on Respondent's motion to dismiss, the Union moved to
reopen the record for the introduction of further testimony in support of the
complaint. The motion was denied by the Trial Examiner.'
On the entire record in the case, and from my observation of the witnesses, I
make the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT ; THE LABOR ORGANIZATION INVOLVED
Republic Cotton Mills (a division of J. P. Stevens Company, Inc.) is a South
Carolina corporation, having its principal office and place of business in Great
Falls, South Carolina, where it is engaged in the manufacture, sale, and dis-
tribution of cotton textiles. During the year preceding the issuance of the
complaint herein, Respondent purchased raw material and supplies valued over
I Based on a charge duly filed by Textile Workers Union of America, CIO, herein called
the Union.
' The testimony which the Union sought to introduce related to purported plant practices
permitting employees to leave their work during working hours. This testimony was
known to the Union and available at the hearing for presentation as part of General
Counsel's case. The Union was not represented by counsel, and confined its participation
in the hearing ostensibly to conferences with General Counsel during the presentation of
his case The Union offered no sufficient excuse for the failure to introduce the above
testimony prior to the close of the Government's case ; the only explanation appearing in
the record is that one of the union representatives sitting with and assisting General
Counsel during the hearing was either not aware of the fact that General Counsel had
closed his case, or of the significance of that action However, when General Counsel
rested, the Trial Examiner called a recess before Respondent's motion, during which the
Union could have learned the status of the case and the legal situation from General
Counsel.
REPUBLIC COTTON MILLS 1477
$500,000, of which approximately $250,000 represents purchases from outside
the State of South Carolina. In the same period its sales of finished products
exceeded $1,000,000 in value, of which approximately $500,000 represented out-
of-State sales. The Board has previously exercised jurisdiction over Respond-
ent.' It is admitted, and I find, that Respondent is engaged in commerce within
the meaning of the Act.
The Union is a labor organization within the meaning of Section 2 (5) of
the Act, which admits to membership employees of Respondent.
II. THE UNFAIR LABOR PRACTICES
The sole issue in the case is whether General Counsel has presented a prima
facie case proving the discriminatory discharge of Charles L. Morgan. There
is no dispute over the material facts which are derived from the testimony of
Morgan and two union representatives, Joe T. Donovan and Charles E. Aus-
lander.
Charles L. Morgan was employed by Respondent on June 2, 1947, in the spin-
ning department in Mill No. 3 of its plant at Great Falls, South Carolina. He
was discharged February 3, 1951. At the time of and just prior to his discharge,
his immediate supervisors were Shift Foreman Vernie Huffstetler, and J. E.
Neeley, general overseer of spinning.
Morgan had been an active member of the United Textile Workers of America,
AFL, from 1947 to 1949, during which period a collective bargaining agreement
between that labor organization and Respondent was in effect. For a short
while he was a member of an AFL shop committee and participated in the
negotiation of at least one grievance with Neeley, his overseer. The AFL contract
expired June 30, 1949, and when the Union began its membership drive in October
1949, Morgan changed his affiliation, joined the Union, and from the outset ` was
the most active and prominent employee engaged in its organizing campaign
which continued until the Board-supervised election on May 9, 1951, in the
representation proceeding! About 2 months after he joined the Union, Morgan
was made chairman of its temporary organizing committee, and during the cam-
paign he actively solicited other employees to join the Union both in and out
of the plant, and signed up about 50 of them ; he attended nearly all the general
union meetings held in Great Falls (population about 5,000), as well as the
committee meetings which were held every 2 weeks during most of the campaign,
and every week just before the election. On June 11, 1950, he made a broadcast
for the Union from a nearby radio station at Rock Hill, South Carolina, 32 miles
from Great Falls, which identified him with the union campaigp and explained
the purposes and benefits of that organization. Morgan also worked closely with
various union officials and organizers, assisting them in renting buildings in town
for meetings of the employees, and associating with them openly at the plant
and in town, within sight of various officials of Respondent. He openly dis-
played his union membership by wearing a union button in the plant, and keeping
s J. P Stevens & Co., Inc., Republic Cotton )Tills Division, 93 NLRB 1513
4 Morgan had been an active CIO member in Rock Hill, South Carolina, for about a
year before his employment by Respondent, and he was one of the first employees con-
tacted by Joe T. Donovan, a CIO organizer, when he arrived in Great Falls to begin his
organizing campaign
a Board Decision and Direction of Election reported 93 NLRB 1513, Case No 10-RC-884
Both the Union and United Textile Workers of America, AFL, were on the ballot in the
election. On May 17, 1951, the Regional Director for the Tenth Region certified that
neither union had received a majority of the valid ballots, and that neither was the
statutory bargaining representati%e.
11
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TWUA stickers pasted on his car windows and the front windows of his home.'
On the basis of the above facts, I find that Morgan was the most prominent and
openly active member of the Union during his employment with Respondent, and
that Respondent was fully aware of his union affiliation and activity.'
During his employment , Morgan worked on the third shift ( midnight to 8 a. m.)
as a doffer in the spinning department in Mill No. 3. His duties required him to
walk the length of a spinning frame, remove bobbins filled with spun yarn and
replace them with empty bobbins. At his discharge , he was handling 9 frames,
in 2 groups of 6 and 3 each. Each frame held 252 bobbins, and doffing of a
complete frame took about 7 to 10 minutes . On each frame, bobbins usually
filled up at spaced intervals, not all at one time, so that the doffer pulled off bobbins
and replaced them with empties in rotation ; the frames likewise were staggered
in their operation, so that as the doffer finished doffing one, the next was ready
for doffing. However, a group of frames was operated so that they became full
in one period , and Morgan was required to doff them " in line," I. e., one after
the other, so that the group could then be stopped for "blowing off," I. e., for clean-
ing purposes ; frames were blown off in groups once during each shift.
When Morgan reported for work shortly before midnight on Friday, February
2, 1951, Shift Foreman Huffstetler told him Overseer Neeley wanted to see him in
the office. Morgan went to the office, where Neeley told him he had gone out and
left a frame standing the morning before, and said be "could not have that."
Huffstetler, Second Shift Foreman Minor, and one John Campbell were present
during the conversation. Morgan replied that he did not see how any frame
could be standing, as he had doffed his frames at 6:15 a. m., and they had run
for 2 hours before the doff; he said that something might have happened to
the picks on that frame, it might have jumped picks.' Morgan also told Neeley
lie had orders from his foreman not to doff any frames out of line, and Huffstetler
admitted he had so told Morgan. Neeley told Morgan to go home, that the Com-
pany would have to investigate the matter further. Morgan expressed his opin-
ion to Neeley that he was also being discharged for union activity, and that if he
was being discharged, "it would go further," there would be charges filed.
Neeley did not reply. On leaving the office, Morgan spoke to Huffstetler about
his discharge, and Huffstetler told him, "I want you to know I did not have any-
thing to do with this." Morgan then returned to his department, and asked his
spinner, Mrs. Cothran, if a frame had stopped the morning before. She said it
had been stopped! Morgan then left the plant.
Later Saturday morning, February 3, 1951, Morgan visited W. H. White, super-
intendent of Mill No. 3, in his office, and told White he thought he had been mis-
treated. White said he would rather have his assistant, Mr. Johnson, hear the
discussion. Morgan asked where he could find Johnson, but White could not say,
6 Neeley, the spinning overseer , frequently visited at the home of one Peak , located
directly across the street from Morgan 's residence.
T In the oral argument on the motion to dismiss , Respondent conceded that General
Counsel had proven Morgan's union activity and company knowledge thereof.
a The phenomenon of "Jumping the picks" and its effect on the frame and spinning oper-
ation is not explained in the record.
6 On cross -examination , Morgan admitted he did not see the frame in question , but took
Cothran's word for it that it had stopped after he left the department . When Morgan
left the department to report to Neeley , he noticed two full frames standing idle ; and
when he got back after his talk with Neeley, he saw "a good many" standing idle ; the
record does not show whether these frames included the one which had been mentioned
in Neeley's accusation, nor whether they had become idle during the previous shift.
While Morgan was in Neeley 's office, there was no one performing his doffing job on his
frames.
0
REPUBLIC COTTON MILLS 1479
stating Johnson might be in any of the three mills. Morgan never talked with
Johnson.
Morgan talked to Neeley on the telephone Sunday, February 4, and asked him
if they had come to a decision. Neeley said, "Yes, we have ; you have been
separated." Morgan said, "You mean fired?" and Neely replied, "Yes, fired," and
told Morgan to go to the personnel office to get his pay.
On Monday, February 5, 1951, in the morning, Morgan went to the office of
Personnel Manager W. H. Ferguson, and asked Ferguson for a written statement
of the reason for his discharge. Ferguson replied that the Company did not
furnish such statements to employees, but only to the State Unemployment
Compensation Commission, and that Morgan could get one there. Morgan said
that he would not accept his final pay until he investigated it "a little further"
and got a statement indicating why he had been discharged. Ferguson then
said, "Well, go ahead and see the Union boys." Morgan then left and consulted
with his union representatives. He came back to the plant Tuesday morning and
accepted his final pay.
General Counsel contends that the above facts and circumstances present a
prima facie case showing that Morgan was discharged for his union membership
and activity. Respondent maintains the contrary, by its motion to dismiss at
the close of General Counsel's case, resting its own case entirely upon General
Counsel's proof. On such motion, there being no issues of fact or credibility
raised by conflicting testimony, the Trial Examiner must accept as true and
consider all facts proven by substantive testimony adduced, together with all
reasonable and legitimate inferences therefrom."
General Counsel bases his case on three basic sets of facts and circumstances:
(1) Morgan's long prominence as an active union member in the plant, and
Respondent's knowledge of it; (2) Neeley's charge on February 3 that Morgan
violated a plant working rule or practice, his immediate suspension of Morgan
pending investigation, and his effectuation of the discharge on the 4th after
company investigation; and (3) Ferguson's suggestion on the 5th that Morgan
"go ahead and see the union boys," after Morgan refused to accept Ferguson's
refusal to give him a written statement of the cause of discharge, and his reason
for such refusal.
General Counsel in effect argues that Morgan's long and prominent union
activity, and Respondent's knowledge thereof, warrants an inference that such
activity had some connection with his discharge. I do not agree. The record
contains no background or context of antiunion animus or activity on the part of
Respondent." There is no proof that Morgan had engaged in any unusual or
outstanding union activity before or at the time of his discharge which would
have tended to impress the fact of his union affiliation upon Respondent, or
which would justify an inference that the discharge was timed to meet or nullify
any specific union activity or objective. Lacking such circumstances, the mere
fact of Morgan's prominent union activity warrants no unfavorable inference
regarding his discharge. An employee's known prominence in concerted activity
does not afford him any special consideration or immunity from discipline." Re-
10 The situation is comparable to a motion for nonsuit by defendant in a civil case upon
completion of presentation of evidence by the plaintiff.
u The only evidence on this subject is Morgan 's testimony to the effect that, when
he visited the plant on February 6 to get his final pay, Ferguson expressed surprise that
he had not seen Morgan at the representation hearing a few days before, and commented
that he had met two CIO representatives there, who appeared to be nice fellows. If
anything , these comments indicate an amiable attitude toward the Union, but not anti-
union animus.
v Chance-Vaught Aircraft Division of United Aircraft Corporation, 85 NLRB 183, 188.
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent may well have welcomed this opportunity of getting rid of Morgan,
but neither his activities nor the Respondent's attitude gave him privileges greater
than those of other employees "
General Counsel argues that the reason given Morgan on February 3 for his
discharge (in reality it was a suspension at that time) was a "flimsy excuse"
and a pretext to cover up a discriminatory motive, because Morgan told Neeley
that, in his opinion, he was also being terminated for union activity, and be-
cause Ferguson, on the 5th, told him to "go ahead and see the union boys." This
argument is not persuasive for several reasons. In the first place, there is no
proof from which I can find, or even reasonably infer, that the reason assigned
for discharge was untrue or not based on fact. Although Morgan told Neeley
he could not see how any frame could be standing, arguing that he had doffed
his frames earlier, and had been following orders on doffing, he did not offer
to explain why he had been away from his work at the time a frame stopped.
There is no other evidence indicating why he left his frames unattended during
the shift, or that it was a permissible practice .14 The record shows only that
he did leave a frame unattended and it stopped, that Neeley told him this could
not be allowed, and that Respondent at first suspended him, and finally dis-
charged him after investigation, for that reason. Whether the cause of discharge
assigned was in fact good or bad is immaterial, for it is well settled that an
employer may discharge an employee for good reason, bad reason, or none at all,
provided it is not for a reason proscribed by the Act." That the cause assigned
here had some basis in fact is shown by Morgan's admission that, after his
suspension, he himself investigated and ascertained from his spinner that a
frame had in fact stopped the morning before during his absence ; and he took
her word for it. The fact that Morgan, at the time of suspension, stated his
opinion that it was a discharge for union activity; and threatened to file charges
over it, is not evidence of discrimination. At most, his opinion and threat prove
that he had a question in his own mind about the effect of his union activity on
his termination.16 The Employer was not required to answer his opinion, nor
engage in any argument with him over the reason stated ; and in view of his im-
mediate threat to file charges, there was nothing unreasonable nor sinister in
Respondent's remaining silent in the face of the accusation and making an
investigation of his conduct before determining whether to lift the suspension
or discharge him."
Nor does Ferguson's remark to Morgan on the 5th, "Go ahead and see the
union boys," warrant a finding, or even an inference, that the discharge was
discriminatory. Standing alone, the remark is equivocal ; it was not said in a
challenging or antagonistic manner, so far as the record discloses ; and there is
no background or context of antiunion activity or animus on the part of Re-
spondent to give it a discriminatory color or meaning. The significant circum-
stances of its utterance are that, it was made only after Morgan demanded a
written statement of the reason for his discharge, the demand was refused by
Ferguson with the explanation that it was not company practice to give out
18 Lloyd A. Fry Roofing Company, 85 NLRB 1222; Central Wisconsin Motor Transport
Company, 89 NLRB 1204, 1214.
14 On redirect examination , General Counsel offered to prove that doffers could leave
their frames in certain undisclosed circumstances but upon objection of Respondent's
counsel , withdrew the questions, stating that he would leave that proof for rebuttal after
Respondent' s case was in; however, that opportunity never arose, since Respondent
elected to rest its case entirely on General Counsel's proof.
16 N. L. R. B. v. Condenser Corporation of America, 128 F. 2d 67, 75 (C. A. 3).
16 Cf. N. L. R. B v. Arthur Winer, Inc., 194 F. 2d 370 (C. A. 7).
17 See case cited in footnote 12 above.
REPUBLIC COTTON MILLS 1481
such written statements, and Morgan refused to accept that explanation, indi-
cating he desired to secure independent advice as to whether he was entitled
to it, before he accepted his final pay. That Ferguson's suggestion was prompted
by Morgan's desire for independent advice on the point is clearly shown by Mor-
gan's admissions on cross-examination, as follows :
Q. Now, you say on Monday you went to see Mr. Ferguson?
A. Yes, sir.
Q. And you told him that you wanted a statement in writing as to why
you had been discharged; correct?
A. Yes, sir.
Q. And he told you that the only statements in writing that the company
put out were the statements they sent to the Unemployment Commission?
A. Yes, sir.
Q. And you told him, well, you didn't want to accept your pay until you
got a written statement ; correct?
A. Unless I found out further.
Q. Until what?
A. Until I found out different about it.
Q. Until you found out whether you were supposed to get a written
statement?
A. Yes, sir.
Q. Now, by finding out further, you mean until you got advice on it or
information on it from elsewhere?
A. That is true.
Q. In other words, you gave him to understand that you wanted to go and
see perhaps the Union or somebody who could give you information?
A. That is who I did see.
Q. And he said, well, o. k., go ahead and see the Union boys?
A. That is true.
Q. And then after seeing them, did you come back at a later day?
A. Yes, sir.
Q. And upon coming back the later day you said you would take your pay
without the statement ; is that correct?
A. Yes, sir.
Q. And you got your pay?
A. That is true.
Under these circumstances, I cannot read into Ferguson's remark the hidden
discriminatory meaning or purpose which General Counsel suggests ; rather, I
am constrained to conclude that it was only natural for the Employer, knowing
Morgan to be a union man desiring independent advice, to suggest that he go to
his union leaders for such advice, in the same way that one of two disputants
over any subject matter might tell the other in a friendly way "Go and see
your lawyer," when they could not agree. Nor can I reasonably imply from
Ferguson's remarks that Morgan would find out from his union leaders why he
was discharged (inferring, for union activity), because he had already been
told the reason on the 3d, and his only controversy with Ferguson on the 5th
was over whether Morgan was entitled to a written statement of the reason for
discharge ; in talking with Ferguson, Morgan did not dispute or argue about the
reason assigned itself. Moreover, Morgan took Ferguson's suggestion, and con-
sulted with his union leaders ; and he did not repeat his demand when he accepted
his final pay on the 6th, but took it without a written statement.
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Considering all the testimony, with the legitimate inferences to be drawn there-
from , in the light most favorable to the contentions of General Counsel, the most
that can be said for General Counsel's proof is that it raises a suspicion that
Respondent discharged Morgan because of his union affiliation and prominent
union activity. But suspicion is not proof, and a finding of violation of the Act
cannot be based on suspicion alone.
After careful consideration of the entire record, I am constrained to conclude
that General Counsel has not sustained the burden of adducing substantial and
probative evidence sufficient to establish a prima facie showing that Morgan was
discharged for discriminatory reasons. It follows that there was no duty upon
Respondent to go forward with the introduction of affirmative evidence in support
of its defense to rebut the case made by General Counsel.'a
I shall therefore grant Respondent's motion to dismiss the complaint, and rec-
ommend that the complaint be dismissed in its entirety.
Upon the foregoing findings of fact and the entire record in the case, I make
the following :
CONCLusIONs OF LAW
1. The operations of Respondent set forth above occur in commerce within the
meaning of Section 2 (6) of the Act.
2. Textile Workers Union of America, CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
3. Republic Cotton Mills (Division of J. P. Stevens Company, Inc.) has not
engaged and is not engaging in unfair labor practices within the meaning of
Section 8 (a) (1) and (3) of the Act, as alleged in the complaint.
[Recommendations omitted from publication in this volume.]
'B In reaching this conclusion, I have considered the facts that : Morgan sought unem-
ployment compensation from the South Carolina Employment Security Commission on
February 7, 1951 , was initially disqualified for a 6-week period by that agency on February
11, 1951 , and the disqualification was removed by the Appeal Tribunal of the Commission
on April 11, 1951 ( Exhibits GC-3, GC-4). I admitted the initial decision and reversal
thereof, showing these facts , only as stipulated official records of a State agency, to show
the facts of its official action. General Counsel admitted that the Commission 's decisions
are not binding on the Board, but argued that its final finding rejecting misconduct as
the reason for Morgan 's discharge is evidential here.
Morgan's initial disqualification for compensation was based on a finding that he had
been discharged for misconduct , I. e., leaving his job without permission ; this finding was
apparently based on "advice" from the Employer ; it does not appear whether Morgan was
interviewed and his story taken before the disqualification . On appeal , the initial decision
was reversed and the disqualification removed on the basis of the testimony of Morgan
alone. The Appeal Tribunal decided that Morgan "is found to have been discharged but
not for misconduct connected with his work " ; there was no finding of the actual reason
for the discharge.
I do not consider the final decision or findings of the State agency to be relevant
evidence on which I can find, or from which I can draw any inference , that Morgan was
discharged for union activity. In the first place, the issue before the State agency was
different from that presented here ; it was whether Morgan was qualified for compensation
under South Carolina law, not whether Respondent discharged him for discriminatory
reasons; the issue as to whether the discharge was for misconduct arose only because of
his initial disqualification for that reason . Furthermore , the final decision of the State
agency was on the testimony of Morgan alone. Although the detailed findings therein
(Exhibit GC-4) indicate that he testified to facts and circumstances which do not appear
in this record, that circumstance does not make those findings evidential here, for Morgan
testified de novo before me on a different issue, and could have given the same testimony
he did before the State agency, if relevant and material , as part of General Counsel's case ;
but he did not do so. Under elementary rules requiring production of the best evidence,
the findings of the State agency are therefore inadmissible as evidence of the truth of
the facts stated therein. Cf. Union Screw Products , 78 NLRB 1107 , 1125; N. L. R. B. v.
Hearst Publications, Inc., 322 U. S . 111, 123; Armour and Company , 32 NLRB 536, 538.