J. P. Stevens & Co., Inc.

National Labor Relations Board - Board Decisions

Dec 31, 1959

125 N.L.R.B. 1354 (N.L.R.B. 1959)

13551 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act, and the Respondent Unions have engaged in unfair labor practices within the
meaning of Section 8(b)(1)(A) and (2) of the Act
6 By the aforementioned acts, the Respondent Companies have interfered with,
restrained , and coerced employees in the exercise of their rights guaranteed- by
Section 7 of the Act, thereby engaging in unfair labor practices within The meaning
of'Section 8(a)(1) of the Act, and the Respondent Unions have restrained and
coerced employees in the exercise of such rights , thereby engaging in unfair labor
practices within the meaning of Section 8 (b) (1) (A) of the Act
7 The` unfair labor practices aforesaid affect commerce within the meaning of
Section 2 (6) and (7) of the Act
[Recommendations omitted from publication 7
J. P. Stevens & Co., Inc. and Textile Workers Union of America,
AFL-CIO. Case No 11-CA-1419 December 31, 1959
DECISION AND ORDER
On August 31, 1959, Trial Examiner James F Foley issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto Thereafter, the Respondent filed
exceptions to the Intermediate Report
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 Leedom and Members Rodgers and
Jenkins]
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed The rulings are here-
by affirmed The Board has considered the Intermediate Report, the
Respondent's exceptions, and the entire record in the case, and hereby
adopts the findings,' conclusions; and recommendations 3 of the Trial
Examiner
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, J P Stevens &
i We make the following corrections of inadvertent errors appearing in the Interme-
diate Report which do not, however, affect the Trial Examiner's ultimate conclusions
The undisputed testimony in regard to the custom of husband or wife or friends helping
each other was with respect to the practice in the spinning room of the Patterson plant,
rather than the Rosemary plant
3 As the Respondent did not except to the Trial Examiner 's finding that the posting
of the employer notice, on or about September 22 or 23, 1958, was also violative of
Section 8 ( a)(1) of the, Act, we adopt this finding pro forma
3 Although the Trial Examiner found that Harp and Moody were discriminatorily
discharged , he inadvertently failed to recommend that the Respondent be ordered ,to cease
and desist from this conduct Accordingly, we shall include the appropriate cease and
-desist order
125 NLRB No 121
J. P. STEVENS & CO., INC. 1355
Co., Inc., Roanoke Rapids , North Carolina , its officers , agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Textile Workers Union of
America, AFL-CIO, or in the Workers' Committee of doffers em-
ployed by Respondent , or in any other labor organization of its em-
ployees, by discharging or refusing to reinstate them, or in any other
manner discriminating against them in regard to their hire or tenure
of employment or any term or condition of employment, except to
the extent permitted by Section 8(a) (3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
(b) Interrogating its employees as to their union activities, inter-
ests, or affiliations in a manner constituting interference , restraint,
or coercion.
(c) Threatening its employees with reprisals, including loss of
employment , if they engage in union or other concerted activities.
(d) In any other manner interfering with, restraining , or coercing
employees in the exercise of the right to self-organization , to form
labor organizations , to join or assist Textile Workers Union of
America, AFL-CIO, or the Workers' Committee of doffers employed
by Respondent, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, and to refrain from any or all such activities,
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment as authorized in Section 8(a) (3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Archie Lee Moody immediate and full reinstatement,
without prejudice to his seniority and other rights and privileges, to
his former or substantially equivalent position.
(b) Offer James O. Harp immediate and full reinstatement, with-
out prejudice to his seniority and other rights and privileges, to the
same type of position he formerly held in the cardroom of Respond-
ent's Patterson plant, or to a substantially equivalent position but in
one of the other cardrooms or other departments that Respondent
operates in its four plants in Roanoke Rapids, North Carolina.
(c) Make Moody and Harp whole for any loss of earnings suffered
by reason of the discrimination against them in the manner set forth
in the section of the Intermediate Report entitled "The Remedy."
(d) Preserve and, upon request, make available to the Board or its
agents, for examination and copying , all payroll records, social se-
curity payment records, timecards , personnel records and reports, and
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all other records necessary to analyze the amounts of backpay due and
the rights to reinstatement under the terms of this Order.
(e) Post at its Rosemary, Patterson, Roanoke Rapids No. 1, and
Roanoke Rapids No. 2 plants in Roanoke Rapids, North Carolina,
copies of the notice attached hereto marked "Appendix." 4 Copies of
said notice, to be furnished by the Regional Director for the Eleventh
Region, shall, after being duly signed by Respondent, be posted im-
mediately upon receipt thereof and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, where notices to
employees are customarily posted. Respondent shall take reasonable
steps to insure that notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director for the Eleventh Region, in writ-
ing, within 10 days from the date of this Order, what steps it has
taken to comply herewith.
• In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership by our employees in
Textile Workers Union of America, AFL-CIO, or the Workers'
Committee of doffers employed by us, or any other labor organiza-
tion, by discriminatorily discharging any employee, or in any
other manner discriminating against them in regard to their hire
or tenure of employment or any term or condition of employment,
except as authorized by Section 8(a) (3) of the National Labor
Relations Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
WE WILL NOT interrogate our employees as to their membership,
interest in, or activities on behalf of the above, or any other labor
organization, in a manner constituting interference, restraint,
or coercion.
WE WILL NOT threaten our employees with a loss of their jobs or
other reprisals, if they join, become interested in, or engage in
activities on behalf of the above, or any other labor organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form, join, or assist Textile Workers Union
of America, AFL-CIO, or the Workers' Committee of doffers
J. P. STEVENS & CO., INC. 1357
employed by us, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any or all of such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as authorized in Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL offer Archie Lee Moody immediate and full reinstate-
ment to his former or substantially equivalent position, without
prejudice to seniority and other rights and privileges, and make
him whole for any loss of pay he may have suffered by reason of
our discrimination against him.
WE WILL offer James 0. Harp immediate and full reinstate-
ment, without prejudice to his seniority and other rights and
privileges, to the same type of position he formerly held in the
cardroom at the Patterson Plant, or to a substantially equivalent
position but in one of the other cardrooms or other departments
that we operate in our four plants in Roanoke Rapids, North
Carolina, and make him whole for any loss of pay he may have
suffered by reason of our discrimination against him.
All our employees are free to become or remain, or refrain from
becoming or remaining, members of the above-named or any other
labor organization, except as provided under Section 8(a) (3) of the
Act.
J. P. STEVENS & CO., INC.,
Employer.
Dated-------------- -- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10 (b) of the National Labor Relations
Act, as amended ( 61 Stat . 136), herein called the Act, was heard before the duly
designated Trial Examiner in Halifax , North Carolina, on May 5 and 6 , 1959, on
complaint of the General Counsel and answer of Respondent J. B. Stevens & Co.,
Inc., herein called Respondent . The issues raised by the pleadings and litigated at
the hearing were whether Respondent discriminatorily discharged Archie Lee
Moody on or about October 1, 1958, and James O. Harp on or about December 31,
1958 , in violation of Section 8(a) (3) of the Act, and whether it engaged in various
acts of interference , restraint , and coercion alleged in the complaint , in violation
of Section 8(a)(1) of the Act. In its answer, Respondent denied discharg;ng
Moody and Harp in violation of Section 8(a) (3), or engaging in conduct violative of
Section 8 ( a) (1).
The parties were represented at the hearing and were afforded full opportunity
to be heard , to introduce relevant evidence , to present oral argument , and to file
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
briefs. The parties waived oral argument. General Counsel filed a brief with the
Trial Examiner after the close of the hearing.
Upon the entire record, and from my observation of the witnesses, I hereby make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
The complaint alleges and the answer admits that Respondent is a Delaware
corporation owning and operating in Roanoke Rapids, North Carolina, plants en-
gaged in the manufacture and distribution of textile products, and that during the
year ending December 31, 1958, Respondent, at its Roanoke Rapids plants, manu-
factured products valued at more than $100,000, and sold and shipped finished
products valued at more than $100,000, to customers located outside the State
of North Carolina. I find that Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act, and that assertion of jurisdiction is
warranted.
IL THE LABOR ORGANIZATION INVOLVED
Textile Workers Union of America , AFL-CIO, herein called the Union , is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Respondent has four manufacturing plants in Roanoke Rapids. They are
identified as the Rosemary, Patterson, and Roanoke Rapids No. 1 and Roanoke
Rapids No. 2 plants, and herein are referred to respectively as the Rosemary,
Patterson, Roanoke Rapids No. 1, and Roanoke Rapids No. 2 plants. In charge
of the overall operations of the four plants is a vice president, a manager, and an
assistant general manager. Each plant has a superintendent, who is in charge of the
particular plant, and superintendents, overseers, and assistant overseers, who super-
vise plant operations. One of the major groups of employees working in the four
Roanoke Rapids plants is the doffers. The doffers place empty quills or bobbins
on the spinning frames and remove the full quills on which the yarn processed on
the frames is automatically wound by a spinning frame operation. There were
approximately 100 to 110 doffers employed in the Roanoke Rapids plants about
the middle of September 1958.
B. Interference, restraint, and coercion
Events Involving Employee Hancock and Overseer McDowell
General Counsel alleged in his complaint that Respondent altered and continued
to maintain altered conditions of employment of its employees for the purpose of
interfering with their union organization or concerted activities. In support of these
allegations, General Counsel offered evidence to show that Respondent posted a
notice of its position with respect to union activity in many of the departments of
the four plants following the notice of a union meeting in the local newspaper, and
an employee, Roland C. Hancock, and other doffers, contrary to established prac-
tice, received reprimands by personnel action slips following disclosure of their
concerted activity in a statement published in the local newspaper.
Preliminary Events
In the latter part of August 1958, the doffers' wages were reduced $5 to $10 a
week. Shortly after the time of the wage cut, eight doffers employed on the second
shift, which was from 3 to 1.1 p.m. in the No. I spinning room at Rosemary, went
to the overseer's office during that shift to discuss the wage cut. One of the eight
doffers was Roland C. Hancock. The overseer of the spinning and carding rooms
was Virgil E. McDowell. McDowell was not in his office at the time, but later saw
each of the eight doffers individually and discussed the wage cut with them. In
substance, he said that there was nothing he could do about it. McDowell met with
Hancock and the other doffers individually on two additional occasions during the
following 2 weeks. At the second meeting, McDowell suggested that the wage cut
could be offset by increased production.
The third series of meetings were held with. the doffers during the week of
September 21, sometime between the 21st and 25th following a meeting 'oh Septem-
ber 21 of the doffers. On September 14, the doffers had organized for the purpose
J. P. STEVENS & CO., INC. 1359
,of engaging in concerted activity with respect to wages, hours , and working condi-
tions. Notice of the September 21 meeting was carried in the September 15, 17, and
19 issues of the Roanoke Rapids (North Carolina ) Daily Herald . The Herald was
a daily newspaper that came out about 5 o'clock in the evening . Of the 100 to 110
doffers employed by Respondent , 60 to 65 attended the meeting on September 21.
A representative of the Union was present at the meeting by invitation . The Union
was the outside union favored by the doffers . The doffers decided to organize all
the employees in the four plants. A number of employees became members of the
Union and some of them appeared at work wearing buttons of the Union.
The Conduct Under Scrutiny
At the third meeting between McDowell and Hancock, sometime between Septem-
ber 22 and 25 , McDowell said that it looked like all his talking did not do any
good. He then stated that the doffers would not be required to perform a work
operation , called mopping underrockers , which they had been previously required
to do.
On September 22 or 23, Respondent posted a notice to employees regarding
union activity on the bulletin board above the drinking fountain in the No. 1 spinning
room at Rosemary . It remained posted on the bulletin board until sometime in
January 1959 . The notice was a statement by Respondent that in its opinion a
union would work serious harm to the employees ; that it was not necessary for
an employee to belong to the Union , or any other union, in order to work for the
Respondent ; that union members would not receive any preferences over those
employees who did not join or belong to any union ; that the Respondent would
have stopped any trouble against employees caused in the plant by other employees,
or any other pressure on employees by fellow employees , to force them to join the
Union ; and, finally, that no union organizing activities would be permitted in the
plant during working hours.
There appeared in the September 25 issue of the Roanoke Rapids Daily Herald
a notice signed by Hancock and Archie Lee Moody , another doffer, as chairman
and vice chairman , respectively , of a Workers' Committee of doffers and other
employees of Respondent . The notice , which was addressed to Respondent and
its employees , stated that the employees were organizing ; that they were "sick and
tired of stretch-out, pay-cut , personal abuse and demotions "; that "threats, firing
or other actions" by Respondent to prevent union activity would not be tolerated;
and that if any employee was discharged for union activity that did not interfere
with production union organizers would swarm in Roanoke Rapids assisting the
organizational activity , and assistance from every other source possible as well would
be sought . In addition , Respondent was warned to take down the notice posted
over the drinking fountain in the No. 1 spinning room at Rosemary.
As previously stated, the newspaper is available to the reader at 5 o'clock in the
evening . At or about 9 p.m. on the evening of September 25, McDowell read to
Hancock a series of charges against him from a long form personnel action report.
Hancock was then working on the second shift which ran from 3 to 11 p.m. About
10 p.m ., he received from McDowell a personnel action report signed by McDowell
which stated in substance that Hancock's production was low because of his failure
to apply all of his working time to his job, and to mop the underrocker arms of the
spinning frames pursuant to instructions , and that if his work performance did not
improve he would be replaced . The personnel action form which Hancock
received was a condensation of the long form personnel action report from which
McDowell read charges to Hancock earlier in the evening . McDowell asked
Hancock if he had anything to say when he finished reading the charges to him at
or about 9 p.m. Hancock replied that he needed the job and would do whatever
they required him to do. He repeated this statement to McDowell when the
latter handed the personnel action form to him at or about 10 p.m.
On September 26, Hancock had a conversation with Vance S. Connell , assistant
overseer for No . I spinning room at Rosemary and his immediate supervisor.
Connell told Hancock that he should go home and discuss the reprimand by
McDowell with his wife. He further said to Hancock that he knew that five men
had been fired during the previous union organizational campaign because of their
union activity . When Hancock asked him how he knew , he replied that he had
sat in on the meetings at which the firings were discussed.'
' Connell , who testified for Respondent , summarily denied that he had this conversation
with Hancock or had any conversations with Hancock regarding union activity.
However , I credit Hancock 's testimony rather than the testimony of Connell. Connell
was present at the three conversations Hancock ha 8 with McDowell in the 2-week period
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In support of his representation that other doffers received personnel action
reports following the announcement of the Workers' Committee in the September 25
issue of the Roanoke Rapids newspaper, General Counsel offered the testimony of
Hancock that he saw three other doffers working on the third shift in the No. 1
spinning room at Rosemary come from McDowell's office with personnel action
reports in their hands on September 25, and that he was informed that doffers on
other shifts in the same spinning room and in the other plants also received personnel
action reports. However, there is no evidence of union membership of, or union
activity by, the doffers who were on the same shift with Hancock in the Rosemary
No. 1 spinning room, or that McDowell or any other supervisor had knowledge
that they were union members or engaged in any union activity. Nor does the record
disclose the contents of the personnel action reports. Hancock's testimony reveals
less about the doffers on other shifts in the same spinning room or in the other spin-
ning rooms.
Other Events Alleged to be Violative of Section 8(a)(1).
As further evidence of a violation of Section 8(a) (1) of the Act, General Counsel
alleged in his complaint, as amended,2 that certain named supervisors interrogated
employees of Respondent in regard to their union membership and activity, and
threatened them with reprisals if they continued to engage in union activity.
In support of these allegations of interrogation and threats, General Counsel
offered the testimony of employees Mullins, Whitby, Mills, Butler, Arp, Clements,
and Harp,3 as to separate conversations they had with individual supervisors. Re-
spondent, by way of rebuttal, offered the testimony of Supervisors Jenkins, Giles,
White, Cranford, Deberry, and Carawan. General Counsel's witnesses testified
that these supervisors did the interrogating and made the threats. The testimony
of General Counsel's witnesses and Respondent's witnesses are in direct conflict.
No corroborating testimony was offered to support either version of each incident.
Employee Mullins and Overseer Jenkins
David Mullins is a size mixer in the Roanoke Rapids No. 2 plant on the second
shift. He began employment as a size mixer helper on January 4, 1956. His super-
visor is, and was in the fall of 1958, Thomas E. Jenkins, general overseer of the
sloshing department, Roanoke Rapids No. 2 plant.
Mullins testified that he had a conversation with Jenkins in October 1958 regard-
ing union membership when he was in Jenkins' office on some matters connected
with his job. According to Mullins, Jenkins asked him if anybody had asked him
to sign a union card. Mullins testified that he answered yes, that Roland Hancock
and other employees had asked him to sign a card, and Jenkins replied that the
Union caused trouble, and suggested that he ask a "Chief Davis" if he did not believe
prior to September 25. He had knowledge of the personnel action report given to Hancock
since he signed it as a witness on September 25.
I also rely on Hancock 's testimony for my findings regarding his conversations with
McDowell, his receipt of the charges from McDowell on September '25, and the posting
of the notice by Respondent on September 22 or 23 in the No. 1 spinning room at Rosemary
and its removal in January 1959. Although McDowell appeared as a witness for Re-
spondent he was silent as to Hancock's testimony. So Hancock's testimony is unre-
butted. Moreover, Respondent offered no other testimony to explain the giving of the
personnel action report to Hancock. On the other hand, McDowell in his testimony
regarding Harp's discharge stated that personnel action reports were given for absen-
teeism, and rarely ever for failure in work performance. A. L. Hux, personnel director for
the four plants in Roanoke Rapids, testified, as witness for Respondent, that the notice
posted by Respondent was a notice that he sent to all plants to be posted on September
20, 1956, and that each plant was notified to take it down on November 2, 1958.
However, he admitted on cross-examination that he did not have personal knowledge when
the notices were taken down, or whether they were taken down and then reposted. He
also admitted that he furnished asupply of notices to each plant during the period from
September 20, 1956, to November 2, 1958, as replacements for the copies of the notice
originally sent. Moreover, McDowell, although in charge of the No. 1 spinning room
during the period from September 20, 1.956, to November 2, 1958, was silent during his
testimony as to the notice. So this testimony of Hancock also stands unrebutted.
21 granted General Counsel 's motions for leave to amend the portions of the complaint
containing these allegations. They were not opposed by Respondent.
3 Harp is one of the dischargees.
J. P. STEVENS & CO., INC. 1361
him. Jenkins, on the other hand, testified that at this first meeting, Mullins, and
not he, brought up the subject of the Union, that the first conversation was held
in his office on October 6 when he called Mullins in, and informed him that he was
transferring him to a size cooking job on the second shift. The head slosher
on the second shift, where Mullins worked until October 6, was, said Jenkins,
dissatisfied with Mullins' work. Then Jenkins stated that Mullins was pleased with
the transfer and on the way out of the office said: "Tommy, what's your opinion
of the Union?" and he replied that, in his opinion, the Union would not help him but
hurt him, and that personally he would have nothing to do with it. At that time,
according to Jenkins, Mullins was not wearing any union identification.
Mullins testified as to one other conversation, which he said was held later in the
month of October 1958, when he was wearing a union pin. Mullins stated that
Jenkins called him into his office, asked him if he was happy with his job, and that
he answered yes, and inquired why he asked. Jenkins' reply was, according to
Mullins, that he could not tell him why he asked the question, but knew he was
unhappy because he was wearing a union badge. Mullins then said that Jenkins
inquired as to why he was wearing it, remarking that he could be fired over the
least little thing like dropping a spool of metallic. Mullins further testified that
Jenkins then stated that he had heard that he, Mullins, had been carrying on union
activities in the plant and, following Mullins' denial, warned him not to engage in
union activity in the plant on the threat of being removed by the police.
Jenkins agreed that late in the month of October he had another conversation
in his office but denied that the conversation had anything to do with. union mem-
bership or activity. However, he testified that he had two conversations with
Mullins not referred to in Mullins' testimony, in which the subjects of union mem-
bership and activity were discussed, one in between the two conversations held in
his office, and the other about 2 weeks prior to the beginning of the hearing on
May 5, 1959. According to Jenkins, in the interim meeting, Mullins was wearing
a union button for the first time, and disclosed for the first time that he had joined
the Union, stating that he had been a member of a union when he worked in the
coal mines, and that when two employees approached him and asked him to sign
a union card, he signed it. The statement made by Mullins, said Jenkins, was the
sum total of the conversation. Jenkins said that he made no reply.
In regard to the second conversation in his office, Jenkins testified that there was
no mention of union membership or activity. He stated that he called Mullins into
his office and asked him if he liked his new job, whether conditions at home were
better, and whether he enjoyed the additional time with his children. According
to him, Mullins replied in the affirmative. In his testimony regarding the fourth
conversation held 2 weeks prior to the hearing, Jenkins testified that it was held
in the smoking booth on the job, that Mullins called him to the smoking booth and
said that he had read in the papers where unions had been dynamiting homes in
Henderson, North Carolina, and that he was through with the Union and wanted
nothing to do with it, as he could not afford to have such things happen to him.
Jenkins said he did not answer Mullins, but walked away.
I find 4 from the testimony of Mullins and Jenkins that they had four conversa-
tions. In the first conversation, on or about October 6, 1958, following Jenkins'
notice to Mullins of his transfer to a new job, Jenkins asked him if anyone had
asked him to sign a union card, and when he replied yes, he stated that the Union
caused trouble. Mullins disclosed to Jenkins in the second conversation a week
or so later that he had become a member of the Union. Jenkins called him into
his office in the latter part of October 1958, and in the third conversation, stated
that he knew that Mullins must be unhappy about his job because he was wearing
a union button, and that he could be fired for the least little thing such as dropping
a spool of metallic. Jenkins asked him the reasons for his wearing the union but-
ton, and spoke to him about the happiness be was getting out of his new job in a
manner which carried an inference that he might not have the job long if he continued
his union membership. Mullins disclosed to Jenkins a decision to discontinue his
interest in the Union, in the fourth conversation held 2 weeks prior .to the hearing.
a These findings are based on what I consider to be the credible testimony of both
witnesses. While I credit Jenkins' testimony that there were four conversations and as
to what occurred during the second and fourth conversations , I credit Mullins in the
main for the material events that occurred during the first and third conversations for
as related by him they are more consistent with the pattern of conduct of which they
are a part.
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employee Whitby and Overseer Giles
Elton B. Whitby has been employed since 1957 in "yarn and storage" in the
Roanoke Rapids No. 2 plant, on the second shift. On or about November 20,
1958, he had a conversation with Harrison A. Giles, overseer of the sample depart-
ment for all four plants. Giles was not then, and is not now, Whitby's supervisor-
The conversation began at the coffee machine in a weaveroom in the Roanoke
Rapids No. 2 plant. Giles saw the union button Whitby was wearing and asked
him what it was. Whitby replied that it was a union button. When he stated
that he had joined the Union in response to Giles' question why was he wearing it,
Giles said he wished to talk to him. They went down into the cellar. This
testimony of Whitby was not contradicted by Giles.
Whitby further testified that in the cellar, Giles asked him why he joined the
Union, and he answered, "better pay and better working conditions and less work
load." Then Whitby said that Giles, after stating that Whitby was receiving the
best pay possible, was not overburdened with work, and his working conditions
were as good as anybody's, stated that if the Union came into the plants, they
might close down, and asked what Whitby's father and mother and all 'other
people in the mill would do if that happened. According to Whitby, he answered
that they could draw unemployment compensation, and Giles retorted that it would
not last forever, to which Whitby countered that they would find something to do.
Whitby then testified that Giles asked him if he knew about Samson in the Bible,
and when he replied that Samson was blind, Giles said, "So are a lot of other people."
Giles testified in rebuttal that in the cellar Whitby stated that he was going to
be a union steward and that the law would require Respondent to sign a contract.
Then he testified that he said to Whitby that the law did not require an employer to
sign a contract merely because a union won an election, and that on being asked
for an example, he cited the Darlington Mill situation where the company decided
to close the mill and liquidate the property after the union won the election. Giles
denied he told Whitby that the same thing could happen at the plants at Roanoke
Rapids or that he made any reference to Samson.
I credit the testimony of Whitby that Giles asked him why he joined the Union.
The question is a sequitur from Giles' questions as to what the button was that he
was wearing, and why he was wearing it. I credit Whitby's testimony that Giles
said to him that the plants might close down if the Union became the collective-
bargaining representative of the employees of Respondent, and asked what Whitby's
mother and father and other employees in the plants would do if the plants closed
down. I credit Giles' testimony that Whitby said he would become a union steward,
and there would be a union contract in response to his question why was he joining
the union workers. And I credit his statement that he cited the Darlington Mill
situation as an example, but find that it was cited as an example, and considered
as such by Whitby, not only in connection with his statement that a union does
not get a contract merely because it wins an election, but also in connection with
his statement that Respondent's plants might close down if the Union had the right
to come into the plants. Finally, I credit Whitby's testimony that Giles said that
some people were blind like Samson in the Bible.
Employee Whitby and Overseers Edmunds and Smith
On or about the last of September or the first of October 1958, Whitby had a
conversation with Ira Edmunds , assistant overseer of the No. 2 quill at Rosemary
on the second shift, regarding the Union. About a week later, he also had a con-
versation regarding the Union with William Smith, overseer of the No. 2 quill
room ,at Rosemary. The record does not disclose whether Edmunds or Smith were
supervisors of Whitby. Whitby was the only witness as to these conversations.
Whitby testified that both Edmunds and Smith asked him his opinion about the
Union in the course of his conversations with them, and that he answered both
questions with the statement that he did not have any opinion about the Union.
He then testified that this answer was the end of the matter in the conversation with
Edmunds, but that Smith replied that he had to have an opinion good or bad, and
when he began to state his opinion , Smith interrupted with the statement that the
Union would be "bad for the people, and bad for the mill and bad for the city."
I credit Whitby 's testimony.
Employee Mills and Superintendent White
Harry Lee Mills is employed on the second shift in the No. 2 weaveroom at the-
Rosemary plant . He began his employment with Respondent in the fall of 1954.
J. P. STEVENS & CO., INC. 1363
Raymond White is, and was in the fall of 1958, superintendent of weaving at the
Rosemary plant, and, as such, one of Mills' supervisors.
Mills had two conversations with White about the Union, the first one in September
1958 and the second about 2 weeks later. The first conversation started when
White came to Mills' machine, a warp board, while Mills was working at it and
checked it. According to Mills, White asked him if he liked his job, and when
he replied that he did, White stated that it had been reported to him that he, Mills,
was carrying on union activity in the plant, and upon his denial, was warned by
White not to engage in such activity in the plant. Mills then testified that 2 weeks
later White said to him in the same weaveroom that he did not seem to like his
job, and when he asked him why he made such a statement, he replied that he,
Mills, was wearing "that thing," after their conversation of 2 weeks before. Mills
testified that White was referring to a union button which he was wearing at the
time. Then White, according to Mills, remarked that there were going to be some
changes in the near future, and it looked like he would have to discharge him.
On the other hand, White testified regarding the first conversation that when he
stopped to check the warp board which Mills was working at, Mills was fingering a
union button and stated that he had been to a union meeting and someone had
given him a button, and was about to say something else, when he, White, interrupted
him and said that it was his privilege to wear the button or belong to the Union
but that he must refrain from campaigning for the Union. In regard to the second
conversation, White testified that at the time he was in the No. 2 weaveroom with
a representative of a manufacturer of machines, making a survey of space to de-
termine where one of its machines could be located, Mills asked him if Respondent
was going to purchase one of the machines, and when White told him it was under
consideration, Mills said that some employees would then be out of work, to which
White replied that "there might be some changes in personnel."
In the context of this record, and bearing in mind that the conversations took
place at or about the time of the incident involving Hancock (discussed supra) and
the incident involving Moody (discussed infra), I credit the testimony of Mills.
White's testimony that he was surveying space in the No. 1 weaveroom at the time
of the second conversation is not in conflict with Mills' testimony, but tends to
corroborate it.
Employee Clements and Superintendent White
John W. Clements is employed as an oiler in the No. 1 weaveroom at the Rosemary
plant under the supervision of White, the superintendent of weaving at the Rosemary
plant. His immediate supervisor is King, the overseer of the No. 1 weaveroom.
Clements was so employed, under White's and King's supervision, in December 1958.
In December 1958, when White came into the No. 1 weaveroom and approached
the spot where Clements was working, the latter said hello, as was his custom when
he saw White, and then asked him for a raise. Clements testified that in response
to this question White said, "Johnnie, we have been through this once before," and
when he asked White what he meant, White replied that Clements knew what he
meant, that he could not spend Respondent's money on somebody who was on the
wrong side of the fence. On cross-examination, Clements denied that he had asked
White for •a raise prior to this occasion. He stated that he had asked King for a
promotion, but the latter had turned him down, telling him that he did not know
how to weave. He also testified on cross-examination that when he was turned down
by King, he was not a member of the Union and was not wearing a union button
at the time of his conversation with White.
White testified that Clements asked him for a raise as Clements had testified, but
that he replied that he had discussed this matter with him on many prior occasions,
and asked him to take it up with King, his overseer. According to White, Clements
thereupon asked him for a job as a "loom fixer, learner," and he replied that he
did not feel he could put him on such a job at the time because of the skill a loom-
fixer job requires, his age, and the long length of time it takes to train for such a
job. White then testified that Clements said, "In other words I am on the wrong
side of the fence." White had testified in connection. with his version of what he
said when Clements asked for a raise, that Clements had asked him fora raise on
prior occasions both when he was overseer of the weaveroom in which Clements
worked and when he was superintendent of weaving . On cross-examination, he
testified that during the conversation Clements was not wearing a union button
but that he knew that Clements was a member of the Union.
I credit the testimony of Respondent 's witness , White. There is no explanation
of the words "the wrong side of the fence," and to draw an inference as to what
the meaning , of the phrase is , even in this context, would amount to sheer speculation.
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover, White's testimony that Clements, and not he, used the phrase is more
consistent with the rest of the testimony than Clement's testimony that it was White
who used the statement.
Employee Butler and Overseer Cranford
Harvey L. Butler was employed in a weaveroom at the Patterson plant in the
fall of 1958 on the second shift. The general overseer of weaving for the Patterson
plant at the time was James A. Cranford. He was a supervisor of Butler, although
not an immediate supervisor. Butler was under the direct supervision of the over-
seer of the weaveroom in which he worked. The overseer was under the supervision
of Cranford. At the time of the hearing, Cranford was so employed, but Butler
was no longer an employee of Respondent.
Butler testified that he had a conversation about the Union with Cranford on or
about October 1, 1958, in Cranford's office. The occasion arose, said Butler, when
he received a personal letter at the plant and Cranford called him into his office and
told him not to let it happen again. Butler testified that Cranford asked him if he
had read the notice on the bulletin board about union activity, and Butler replied
that Cranford must have heard that he had attended a union meeting, to which
Cranford remarked that he had worked in a mill in South Boston, Virginia, during
World War II and when the union there struck, he would have shot down every
one of the strikers if he had had a machine gun. Butler further testified that
Cranford said that production standards could be set up by the plant, and if his
production did not meet them in any one week, he could be "fired," and that on his
leaving the office, Cranford said: "Let a word to the wise be sufficient."
Cranford could not remember having a conversation with Butler about the
Union or remember saying anything to Butler about standards and the consequences
of a failure to meet them, and denied saying to Butler that he would have shot
down the strikers in a plant at South Boston, Virginia, during the Second World
War if he had had a gun. On cross-examination, Cranford did recall calling
Butler into his office and talking to him about receiving personal mail at the plant.
He could not remember the date of the conversation.
I credit the testimony of Butler that in a conversation on or about October 1,
1958, Cranford disclosed hostility to union membership and activity, stated that
production standards could be established by Respondent and Butler could be fired
if he failed to meet them in any one week, and that at the close of the conversation
Cranford said to him: "Let a word to the wise be sufficient."
Employee Arp and Assistant Overseer Deberry
On or about the middle of November 1958, Robert Ray Arp was employed in
the No. 1 cardroom at the Rosemary plant on the second shift. Floyd Deberry
was the assistant overseer of this room. McDowell, who was overseer of the
carding and spinning rooms at Rosemary at the time of the incident involving
employee Hancock, was still holding that position, although he was to be transferred
a few days later to the Patterson plant. At the time of the hearing, Deberry still
held the position of assistant overseer, but Arp was no longer employed by Respond-
ent, and McDowell was superintendent of the Patterson plant.
Arp and Deberry had a conversation about the Union in or about the middle of
November 1958. Arp was working at or about the middle of the No. I cardroom
of the Rosemary plant and was wearing a union button. Arp testified that Deberry
approached him and told him to go to his office, and that in the office he asked
him if he had a grudge against him or McDowell, to which he answered "No," and
inquired why he asked such a question. According to Arp, Deberry stated that
as long as he was wearing the union button he was putting a black mark against
McDowell and him. He then asked, said Arp, what he thought about the Union.
Deberry agreed that Arp worked under his supervision. He recalled having one
conversation with Arp regarding the Union. He testified that be called him into
his office and asked him if he was wearing the union identification because of any-
thing he had done, or had not done, or if anything was wrong with his job.
I credit Arp's testimony. Deberry's testimony that he instructed Arp to go to
his office on seeing him wearing the union identification, and because he was wearing
it, asked Arp while in his office, if he had been wronged by him or McDowell or
whether there was something wrong with the job, tends to corroborate Arp's
testimony.5
5 The conversations between dischargee Harp and Assistant Overseer Carawan are
discussed infra.
J. P. STEVENS & CO., INC. 1365
C. Discharges
As previously stated, General Counsel alleged that Respondent discriminatorily
discharged Archie Lee Moody on or about October 1, 1958, and James O. Harp
on or about December 31, 1958, in violation of Section 8(a)(3) of the Act.
Respondent admitted the discharges in his answer but denied that they were dis-
criminatory. Respondent presented evidence at the hearing by way of defense to
show that Moody was discharged for insubordination and Harp was discharged for
inefficiency and refusing to cooperate with Respondent by refusing to agree to
reduce such inefficiency.
The Discharge of Archie Lee Moody
Employee Moody began his employment with Respondent on or about June 22,
1956. He was discharged on September 29, 1958. During this whole period of
employment, Moody worked as a doffer in the spinning room of Patterson on the
third shift which ran from 11 p.m. in the evening to 7 a.m. the following morning.
As previously stated, a doffer keeps the spinning frame equipped with empty quills
or bobbins on which the yarn or thread winds, and takes the full quills or bobbins
from the spinning frames. During the period of Moody's employment, Margaret
Moody, his wife, was also employed in the spinning room of Patterson as a spinner.
She was employed at a warp spinning frame about 200 feet from where her husband
worked. Mrs. Moody had worked for Respondent for a number of years prior
to Moody's employment, and continued to work during both the period of Moody's
employment and the period from Moody's discharge to the date of the hearing.
Ralph Estes was an assistant overseer in charge of the production and personnel
of the spinning room at the Patterson plant on the third shift during the period of
Moody's employment. He was both Moody's and Mrs. Moody's immediate super-
visor. The doffers and other personnel engaged in the operation of the spinning
frames and related operations at Patterson during the third shift were also under
Estes' supervision. Joe Cox was the overseer of the spinning room in Patterson,
and Estes' superior, on September 28 and 29, 1958. At the time of the hearing, he
was no longer associated with Respondent in any capacity. On the above dates,
Shearod H. Crumpler was superintendent of the Patterson plant and in charge
of all of its operations and personnel. Joseph H. True was the fixer in the Patterson
spinning room on the third shift on the dates in issue. A fixer is the troubleshooter
on maintenance and machine operation, and the person to whom the spinning
room employees must look when the assistant overseer is off the floor.
As found above, Moody was a signatory to the notice to Respondent and its
employees by a Workers' Committee of the employees that appeared on page 16
of the September 25, 1958, issue of the Roanoke Rapids' Daily Herald. Estes saw
the notice sometime between the date of its publication and the date of September
28. Crumpler who testified for Respondent recalled seeing the notice, but could
not recall whether he saw it before or after September 29 when Moody was dis-
charged. However, he was a subscriber to the newspaper, and on cross-examination
admitted that he read the paper carefully either the evening of publication or the
next day. On cross-examination, he also testified that he discussed the notice with
Turrentine, vice president in charge of the plants in Roanoke, and with Fitzgerald,
the assistant general manager of such plants, and saw the notices of the union meet-
ing on September 21, 1958, that appeared in the newspaper on the previous Monday,
Wednesday, and Friday. I find that Crumpler read the notice in the September 25
issue of the newspaper prior to the morning of September 29, 1958, and had dis-
cussed it with Turrentine and Fitzgerald prior to that date.
At 11 p.m. on September 28, Moody began work as usual on the third shift in
the spinning room of the Patterson mill. It was his first workday following Septem-
ber 25 when the notice he signed appeared in the Roanoke Rapids newspaper.
John W. Taylor, also a doffer, was assigned to work as his partner in place of a
doffer named Johnson. Moody was closely watched by Estes who appeared to be
looking for an opportunity to reprimand him. About I a.m. on September 29,
he and Taylor went to the restroom for a break and a smoke. They returned shortly
and continued their doffing operations. Shortly after 2 a.m. Mrs. Moody visited
him for money to get a bottle of Pepsi Cola from the soft drink machine located
in the spinning room. He told her that he did not wish to stop working at that
moment and asked her to help him doff the side of a frame he was working on, and
to fill up the doff box with quills. She helped him doff the side and then proceeded
to fill the quill box with quills. As she began to fill the box, Moody went to the
other side of the frame to doff it. Estes approached Mrs. Moody and in a testy
535828-60-vol . 125-87
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tone of voice ordered her to get back to her frame. He further said that if he
needed her to doff he would let her know. Being on the other side of the frame,
Moody did not hear what Estes said to his wife. Taylor, however, heard it and
noticed the tone of voice used by Estes. He had come to her side of the frame and
was filling his doff box with quills at the time she was filling Moody's.
Mrs. Moody went to where Moody was working and told him that she had been
ordered back to her job by Estes. Moody told her to go back to her job and gave
her the 6 cents for the soft drink. She had the drink, and returned to her spinning
frame at the lower end of the spinning room. Moody and Taylor continued to
work without interruption until about 3 a.m. when the frames were doffed to the
point where they could run without their presence. Taylor went to the washroom
and Moody went to obtain a cigarette from his shirt which was hanging on a post
nearby. Seeing Estes he walked up to him and asked him if he had told his wife
to get back to her job. Estes replied, "Hell, yes, what are you going to do about
it?" Moody said, "Nothing. I will see you later." Moody thereupon went to
the restroom where Taylor already was and discussed the matter with him. A few
minutes later Moody and Taylor came out of the restroom and approached Estes,
and Moody, in Taylor's presence, asked Estes if the refusal to permit his wife to
help him was a policy that applied to everybody in the spinning room or just to
him and his wife.6 Estes replied, "I run this damn spinning room. I don't take
orders from you or nobody else." At this point in the conversation, Taylor left.
Moody then said, "I didn't say that. I just wanted to know if it applied to everybody
in here." Estes retorted, "I done heard enough of your damn mouth. Go on back
to your job." Moody informed him his job was running, and Estes then said,
"Well, you go on and hush if your job is running, I am not going to put up with
you worrying me here." Moody turned and started to the restroom to smoke.
When Estes, at this point, said something else, Moody turned back to face him
and asked him what he said. Estes answered, "I will tell you and your wife what
to do and I will tell the other people in here what to do." Moody remarked, "I
just wanted to know if it applied to each person in here, staying on the job, or to
just me and my wife." Thereupon, Estes said, "I have heard enough of your
damn mouth. You are fired." Moody said, "Thank you," picked up his shirt and
started for the restroom. He whistled to two doffers whom he saw talking to come
to the restroom.7 Moody discussed his firing with Taylor and the two doffers in
the restroom. The two doffers and Moody left the restroom. The doffers began
rounding up the other doffers to go out on strike and Moody started toward the
other end of the spinning room where his wife was working. He met Estes and
True coming from that direction. Estes grabbed him by the collar and pushed
him against a spinning frame, and told him that he would call the police if he did
not leave the plant. Moody told Estes to call the police if be wished, but to keep
his hands off of him. He then informed him that he was going to tell his wife
he would "pick" her up at 7 o'clock. Estes stepped back and permitted him to
pass. Moody gave this information to his wife, and walked back up the spinning
room to the restroom. On his way he encountered a doffer to whom he stated that
the doffers were walking out. Shortly thereafter, he left the restroom. Two police-
men were present a short distance from the door of the restroom. They had
arrived at the plant following the supply clerk's call to the police station from the
first floor of the plant on instructions from Estes relayed to him by True. Moody
immediately walked out of the mill followed 30 feet behind by the two policemen.
On his way out, Moody whistled and waved to the doffers who had not preceded
him to follow him out. Approximately 5 minutes elapsed from the time that the
call was received at the police station to the time that the police entered the
spinning room.
e It is undisputed that over a long period of time it had been customary for husband
and wife or friends in the Rosemary 'spinning room to help each other, with the tacit
approval of the supervisors, to permit one or the other to take a break, or have lunch,
with the person helping. Moody's wife had helped him and he had helped her on prior
occasions without objection by Estes.
4 The material events occurring prior to the second conversation Moody had with Estes
are undisputed . However, Moody and Estes , who testified for the General Counsel and
Respondent, respectively, gave conflicting versions of the second conversation. The evi-
dentiary findings made above are premised on what I consider to be the credible testimony
of Moody and Estes. Taylor, Moody's working partner, who testified for the General
Counsel, and True, a fixer, who testified for Respondent, are the only other witnesses to
the second conversation, and then only to brief parts of it. The testimony of Taylor
and True has been considered in the making of these evidentiary findings.
J. P. STEVENS & CO., INC. 1367
Moody, the other doffers, and the policemen stood outside the gate talking. Cox,
Estes' supervisor , and Crumpler, the Patterson plant superintendent, approached
Moody. Estes, who had come out with Cox, was close by Crumpler, who had
hurriedly arrived at the plant after a telephone call from Cox at or about 3:45
a.m., went to his office and Moody related what happened to Cox. The doffers
returned to work shortly thereafter upon an agreement being reached among Cox,
Moody, and the doffers that Moody would be permitted to tell Crumpler his version
of what happened, with Taylor and True as his witnesses, and they, the doffers,
would be informed as to what transpired. Approximately 20 minutes elapsed from
the time the police reached the plant and the time the doffers returned to work.
Moody did not talk to any of the doffers in the spinning room about the matter
prior to his discharge by Estes. He did discuss the order Estes gave his wife with
one of the spinners on the 16 or 17 frames he and Taylor had to doff, while he
was doffing the particular frame.8
Moody went to Crumpler's office accompanied by Taylor and True. Estes was
also present . Crumpler would not permit Taylor and True to be present while
Moody gave his version of what happened.9 He had them wait outside until Moody
and Estes had both given their versions. When they had done so, he called Taylor
and True in, one at a time, and heard their accountings of what happened, in the
presence of both Moody and Estes. Crumpler then advised Moody to go home and
return at 10 a.m . He said that he wished to think the matter over before making
a decision . Moody returned at 9:45 a.m. Cox was at Crumpler's office but the
latter had not arrived. Cox told him that Crumpler would be there after 10 a.m.
Moody saw his wage slip in Cox's pocket. He said to Cox that there was no need
for him to return as he knew he was fired because he had his wage slip in his pocket.
The other four doffers who represented the doffers in the two spinning rooms at
the Rosemary plant and the spinning rooms in the Roanoke Rapids No. I and No. 2
plants had driven to the Patterson plant with Moody on the morning of September
29, 1958. Moody represented the doffers in the Patterson spinning room. The four
doffers had waited in the car while he talked to Cox. Moody returned to the car
after his conversation with Cox, and discussed the conversation with the four
doffers. Crumpler arrived shortly after 10 a.m. and Moody and the rest of the
committee went into his office. However, he would not permit the other four
doffers to stay, stating that they had nothing to do with the Patterson plant. Moody
and Crumpler conversed about 30 minutes. Crumpler told Moody that he had to let
him go for refusing to return to work when Estes ordered him to do so. 10 In re-
sponse to Crumpler's question as to whether he thought he was being treated fairly,
Moody replied that neither Cox nor he (meaning Crumpler) would terminate a
conversation and order him to work, then start the conversation up again and fire
him for replying to what was said when the conversation was resumed.ll
8 Estes testified that he saw Moody talking with three doffers separately prior to his
discharge. Moody denied that he talked to any doffers prior to his discharge. This
denial is corroborated by Taylor's testimony on cross-examination that he did not see
Moody talking to doffers in the spinning room. True, Respondent's witness, like Estes,
testified that he saw Moody talk to other doffers, but he further testified that when
Moody did so, his job was running. I have credited Moody's testimony corroborated by
Taylor's testimony, but even if Estes and True were credited instead of Moody, my conclu-
sions would be the same as those stated infra , as Estes admitted that be had no objection
to employees talking on the spinning room floor if there is no interruption of work, and,
according to True, Moody's job was running at the time of the conversations, and the
doffers to whom Moody purportedly talked were standing by their frames. I do not
credit Estes' testimony that prior to his discharge Moody whistled and motioned other
doffers to leave their jobs and listen to Estes' answers to questions Moody was asking
him thereby providing an occasion for a disturbance or commotion in the spinning room,
because Moody's testimony of what transpired during the conversation indicates otherwise,
Moody positively denied he had done so, and True, Respondent's witness, testified only
that Moody whistled and motioned to other doffers when he was leaving the plant after
the discharge. Moody himself testified that he had whistled and motioned to two
doffers to come to the restroom after he was fired by Estes.
Y I rely on Moody's testimony as to what occurred in Crumpler's office. Crumpler's
testimony is not in conflict with Moody's except as to what the latter and Estes, Taylor,
and True related to him regarding the events leading up to the discharge.
iu Crumpler, as well as Moody, so testified.
u Crumpler's testimony is silent as to this portion of his conversation with Moody.
His testimony as to the statements made to him by Moody, Estes, True, and Taylor in the
early morning of September 29, 1958, regarding the events leading up to llfoody's dis-
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After relating to the four doffers waiting in the car what happened, Moody
telephoned Turrentine , the vice president in charge of all of the Respondent 's plants
in Roanoke Rapids, and arranged with him to see the committee. Turrentine re-
fused to see the doffers as a group when they arrived at his office, but he indicated
his willingness to talk to each one separately. The four doffers who came with
Moody refused to meet with him separately and left. When Turrentine refused to
see the five doffers, including Moody, as a committee, he was told that the doffers
would strike at 3 o'clock that afternoon. It was then approximately 1:30 p.m.,
Monday, September 29.
Moody conversed with Turrentine about 30 minutes. Turrentine, like Estes,
refused to answer Moody's question whether Estes' refusal to permit Mrs. Moody
to help him that early morning was a policy that applied to everybody in the spinning
room at Patterson. Turrentine asked Moody to persuade the other committee mem-
bers to call off the strike, that the problems could be straightened out. Moody
replied that he could not do this in view of Respondent's unwillingness to answer
the question Moody had asked him and Estes. Turrentine then asked Moody if
the doffers were planning on calling the strike. Moody answered in the affirmative.
This ended the conversation. Turrentine took no action to reinstate Moody.
The doffers in all plants walked out at 3 o'clock that afternoon. They did not
return to work until the third shift, 11 p.m., the following Sunday, October 5, 1958.12
The Discharge of James O. Harp
James O. Harp was employed by Respondent and its predecessor from 10 to 15
years prior to his discharge on December 31, 1958. For approximately 9 months
prior to his discharge he was employed as a can hauler on the third shift in the
cardroom at the Patterson plant, under the supervision of Gold D. Carawan, as-
sistant overseer of the cardroom on the third shift, and Virgil E. McDowell, general
overseer of carding, spinning, and warp preparation at the Patterson plant. Mc-
Dowell was in charge of the cardroom supervised by Carawan and where Harp
worked, for all shifts, the first, second, and third.13
Harp's job was to carry cans containing slivers or slender rolls of cotton from
the carding or drawing machines to be processed on the machines tended by the
slubber tenders and to return the empty cans to the carding or drawing machines.
Harp also knew how to work in the opening room, and to operate the carding and
picking machines. He was assigned to these latter jobs when the employees usually
performing them were absent. Harp became a member of the Union in late Sep-
tember or early October 1958. Carawan saw him wearing a union button and knew
him to be a member of the Union. He also knew that when the doffers went out
on strike Harp went out with them.14
Harp testified that in late September 1958 Carawan brought him to the place in
the cardroom where the notice regarding union activity had been posted and read
the notice to him. In the latter part of September 1958, or early October 1958,
Harp had a conversation with Carawan in the opening room at the Patterson plant
regarding the Union. According to Harp, Carawan saw him wearing a union button
and sent the other employee in the room to rest, and then began to talk about the
Union. He asked, said Harp, his opinion of the Union and stated that if the mill
went union, Respondent was going to shut it down. Harp testified that a few days
later he was standing in the carding room with another employee, and Carawan came
by and flipped his union button which he wore on his watch pocket, and asked him
if he was signing the men up, and he answered that he would sign him or anybody
else up after 7 o'clock, to which Carawan replied that he would never sign him up
for a union.
charge by Estes varies in many respects from the testimony given by Moody, Estes, True,
and Taylor. It is significant, however, that in testifying as to what Estes told him,
he made no reference to an answer by Estes to Moody that the refusal to permit Mrs.
Moody to help Moody would apply to all employees in the spinning room. Estes testified
that he had made such an answer, and Moody denied that he had. This tends to
corroborate Moody's testimony.
la Moody's testimony of his conversation with Turrentine, on which these findings are
premised, is unrebutted.
sa As previously noted, McDowell had been transferred to this position during the latter
part of November 1958, from the position of overseer of the No. 1 spinning room at the
Rosemary plant.
'4 These facts are undisputed. They are premised for the most part on Car awan's
testimony.
J. P. STEVENS & CO., INC. 1369
Carawan, in his testimony as witness for Respondent, admitted that he had the
conversation with Harp in the opening room about the Union, and in the course of
the conversation asked Harp what he would do if the plant closed down. He left
unrebutted Harp's testimony regarding the second conversation a few days later.
He denied, however, that he told Harp that the plant would shut down if the
Union represented the employees. He testified that Harp told him that some of the
other employees were trying to scare him by telling him the plant would shut down
if the Union won the right to represent the employees.
I credit Harp's testimony that in the conversation Carawan had with him in the
latter part of September or early October 1958, Carawan asked his opinion of the
Union and told him that the plant would close down if the Union gained the right
to represent the employees, and asked him what he would do if the plant closed
down, and I credit Harp's testimony that in the presence of another employee a few
days later, Carawan questioned him about his activity in obtaining members for the
Union.
On the evening of December 30, 1958, when Harp reported for work on the third
shift starting at 11 p.m., Carawan told him not to work that shift but to report to
McDowell in the latter's office the following morning, December 31, 1958, at 10 a.m.
Harp reported to McDowell in his office at 10 a.m., December 31, and McDowell at
that time discharged him. The evidence on which these findings are premised is
undisputed, but the testimony of events leading to the discharge is conflicting.
Harp testified that 2 or 3 nights prior to the discharge, at or about 10:45 p.m., he
passed out small calendars for the year 1959 with the identification of the Union on
them at the little gate through which the workers on the third shift in the Patterson
plant entered the plant to their jobs, and that he gave one to Carawan who looked
at it, threw it on the ground, and said to Harp, "I will fix you." According to
Harp, Carawan did not speak to him during the whole time of the third shift
following his distribution of the calendars. As started above, when Harp reported
for work the following evening he was told not to work but was sent home, and fired
the next morning by McDowell when he reported to him. Harp testified that
McDowell told him he had to let him go because he was not keeping up with his
work.
According to Harp, he received only one personnel action slip in the fall of 1958,
about 3 or 4 weeks before he was discharged, and that was for cleaning off his clothes
with a blower. He also testified that Carawan reprimanded him orally only once
following the receipt of the personnel action slip, about a week or two before his
discharge, and that was for being short a roll or can of slivers for a slubber tender.
His explanation was that there were no slivers or cans available at the drawing
machines, and he had to wait until the machines were doffed, that is, until the slivers
were taken off the machines and placed in cans. He further testified that in the
summer or fall of 1958, Carawan visited his home in regard to his absence from
work while he was receiving medical care, and talked to his wife about his absence,
and in the course of the conversation, overheard by him and a roomer in his home
by the name of James L. Conwell, stated that he was a good worker.
On cross-examination, Harp testified again that Carawan had reprimanded him
only once following the receipt of the personnel action slip, about 1 or 2 weeks
before he was discharged, and that the reprimand was for failing.to deliver a can of
slivers to a Blubber tender. He stated that he was never reprimanded by McDowell.
In response to Respondent's counsel's questioning, he answered that he knew the
slubber tenders were complaining, that they complained to him as well as Carawan,
but that the complaints were about a shortage of rolls or cans of slivers, which were
not complaints about him as there was a shortage of cans or slivers at the drawing
machines where he had to obtain them. Harp further responded to Respondent's
counsel's questioning that he had no knowledge that slubber tenders on the same
shift were complaining about the accumulation of waste behind the frames tended
by them, that Carawan had given him permission to let it accumulate since it was
left there by another shift. Harp repeated on cross-examination that one night
shortly before being laid off, he distributed 1959 calendars at the small Rate to the
Patterson plant and gave one to Carawan who threw in on the ground and said,
"I will fix you." Respondent's counsel asked him to name some employees to whom
he gave calendars. Harp answered by saying that he gave them to everyone passing
by who would take them. He repeated this answer three times in resnonse to
questions. In answer to Respondent counsel's repeated questioning, he identified four
employees to whom he gave the calendars in addition to Carawan. They were Roy
Blythe, Archie Moody, "the Jones Boy" who "runs cards," and an employee who "ran'
drawings."
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carawan denied that he received a calendar from Harp on entering the Patterson
-plant 2 or 3 nights prior to Harp 's discharge or that he saw him passing any out at
the time. He testified that : Harp was not a satisfactory worker; he would leave
empty sliver cans behind the slubbing machines , would carry cans of slivers to the
wrong slubbers , would turn over cans of slivers causing the entanglement of the
slivers of cotton, and failed to pick up waste at the end of the third shift; the can
hauler on the first shift had to do part of Harp's job , the slubbers on the third shift
complained to him, Carawan , about Harp , and the slubbers on the first shift com-
plained to their assistant overseer about him ; and he spoke to Harp about the defects
in his work almost every night, and while Harp was "pretty good " early in the
shift , he got far behind during the course of the shift as he spent too much time in
the washrooms . Carawan further testified that one night he came on the third
shift and found three or four cans of waste marked "the third shift" by a first
shift worker who had taken the waste from behind the frames , and he thereupon told
Harp he had gone as far as he could , for him to go home and return to see McDowell
the next morning at 10 o'clock . Carawan denied that in July 1958, when he visited
Harp 's home to check on absenteeism , as was the custom, he stated to Mrs. Harp
that Harp was a good worker.
On cross-examination , Carawan admitted that he had seen the small union
calendar referred to by Harp , that he believed Superintendent Crumpler had shown
it to him , and that he never gave Harp a personnel action slip for failure in work
performance . He stated that he talked to him on many occasions about his work
performance , and contended that personnel action slips were reserved for absenteeism
and for the type of conduct Harp engaged in when he dusted off his clothes with a
blower. He denied again that Harp had given him a union calendar a night or two
before he was fired , and stated that empty cans and waste were left to the next
shift to such an extent that something had to be done about it.
McDowell testified that when he first took over as general overseer of carding,
spinning, and warp preparation at the Patterson plant in the latter part of November
1958, he heard complaints from employees , especially on the first shift, as to the
condition Harp left the carding room in at the end of the third shift, and that both
Carawan and Foster , assistant overseer of the cardroom at Patterson on the first
shift , talked to him about it . According to him, he spoke to Harp , as he did to other
employees , at the time he assumed the position of general overseer , and asked him
for his cooperation by listening to what Carawan had to say and doing what he asked
him to do , but he kept receiving complaints about Harp from employees and the
assistant overseers , until finally he told Carawan that when he received a complaint
he was to take Harp to the person making the complaint , and show Harp the condi-
tion complained of, and that if Harp refused to cooperate to report back to him.
McDowell testified that Carawan did this several times , but when complaints still
came from Foster , and Carawan said Harp was getting worse , he told Foster to make
arrangements to get the work done at the beginning of the first shift that was left
undone by Harp at the end of the third shift , and instructed Carawan to send Harp
home and tell him to see him, McDowell , the following morning , the next time he
did not perform his duties properly . According to McDowell , Carawan followed his
instructions in the latter part of December 1958, when he told Harp not to work
but to report to him , McDowell , the following morning.
Then McDowell testified that in his conversation with Harp on the morning of
December 31 , he discussed with him the whole gamut of complaints made against
him by employees and Assistant Overseers Foster and Carawan. McDowell stated
that Harp admitted that he was staying in the restrooms more than he should,
but when he asked him if he would stay out of them , he said, "No" and when he
asked him to improve his work performance generally, he would make no commit-
ment to do so, stating that he was doing the best he could and that it did not matter
anyway as the Respondent was out to get him . McDowell said he discharged him
when he refused to make any commitment to do a better job.
On cross-examination , McDowell admitted that Harp did not say that he would
not stay out of the restrooms more than he had been doing. He testified that he
received that impression from his statement that he was doing the best he could
and from his failure to answer the question whether he would stay out of them.
On redirect examination , he testified that Archie Lee Moody , who had been dis-
charged on September 29, 1958, had not been employed by Respondent since
that date.
McDowell's testimony is silent as to the time he gave the final instructions to
Carawan , namely to send Harp home and have him report the following morning
to him , and as to what Harp did or did not do the week before Christmas or during
Christmas week that gave Respondent no alternative but to discharge him, and as
J. P. STEVENS & CO., INC. 1371
to, what complaints he received about Harp during this period from employees
directly or from Foster or Carawan. His testimony and Carawan's fail to dis-
close whether he was apprised by Carawan of the final act of Harp's (leaving
three or four cans of waste) that purportedly sparked Carawan's decision to send
him home.
In further support of its defense , Respondent offered the testimony of employees
Roy Blythe, John B. Whitley, John K. Roland, John E. Spence, John Hunsucker,
Claude W. Drewery, and Charles Blythe. These employees worked in the cardroom
of the Patterson plant when Harp worked there. Roy Blythe, Whitley, and Roland
worked on the third shift with Harp, and Spence, Hunsucker, Drewery, and Charles
Blythe worked the first shift which, in point of time, followed the third shift.
Roy Blythe, a slubber tender on the third shift, testified that Harp failed to keep
him supplied with an adequate supply of cans of slivers, and at times would put
full cans of slivers behind other frames where they were not needed, but would
fail to place any behind the frames he was tending when he needed them. He
stated that he complained three or four times about these situations to Carawan,
and that of the five can haulers he had worked with, Harp was the worst. He
could not recall when he last complained to Carawan about Harp, or over what
period of time he registered the three or four complaints with Carawan about Harp.
He admitted that any empty cans that were behind the frames he was tending did
not bother him, and that while Harp was not getting any better at the time of his
discharge, he was not getting any worse. He denied that he received a calendar
from Harp a few nights prior to Harp's discharge at the little gate entrance to the
Patterson plant or that he saw Harp passing calendars out at that time and place.
He stated that he used the big gate entrance to the Patterson plant.
Whitley, a Blubber tender on the third shift, testified that a number of times
he was short cans of slivers, and when short he asked Carawan to obtain some
for him, and when Harp came by where he was working, he asked him to get them
for him and he always did so. He further stated that when he had cans of slivers he
always had plenty, that several times Harp left empty cans behind the frames,
and that at the time of the hearing the can hauler who replaced Harp had overcome
the problems that existed when Harp had the job. His testimony does not dis-
close whether he complained to Carawan about Harp the week before Christmas or
during Christmas week, or whether he asked Carawan to obtain some cans of slivers
for him during that period.
At the time of the hearing, Roland was not employed by Respondent and had no
other connection with it. He was a Blubber when he worked with Harp on the
third shift. He testified that Harp would leave empty cans behind the frames, and
that he complained about these situations two or three times a night on different
occasions. He stated that on the last night Harp worked there were 200 empty
cans behind the frames at the end of the third shift, although there were none
there at the beginning of the shift. Harp's work performance, according to Roland,
was as bad as it could possibly be at the time of his discharge. To him, it could
not be "any worse." 15 On cross-examination, Roland disclosed that he knew that
Harp also worked in the opening room and at the picking machine or picker. He
stated that it may have been another time during the last week that Harp worked
instead of the last night he worked when he saw the 200 empty cans, but that he
was certain that Harp was hauling cans the night he saw them . His testimony is
silent as to whether he complained to Carawan about the 200 empty cans. Neither
Carawan nor McDowell indicated in their testimony that they had any knowledge
of such failure by Harp to perform his duties.
Spence had been a can hauler on the first shift for about 21/2 years at the time
of the hearing . He testified that when he came on the first shift in the morning
the alleys behind the frames were always filled with cans. Hunsucker, a fixer and
overhauler, and Drewery, a slubber tender, also employed on the first shift at the
time of Harp's discharge, testified, like Spence, that the alleys were filled with
empty cans in the morning. Spence, Hunsucker, and Drewery testified that they
complained about the situation, Spence to McDowell, and Hunsucker to Foster,
assistant overseer on the first shift, and Drewery to both Foster and McDowell.
Hunsucker also testified that on each morning at the beginning of the first shift,
an extra man was assigned for an hour or two to haul empty cans to the drawings
so Spence could place full cans of slivers back of the frames. Spence admitted that
he had also complained about the failure of the can hauler who replaced Harp to
15 Roland, who left Respondent's employ in February 1959, began his employment with
Respondent sometime in November 1958, and, therefore , was familiar with the caliber of
Harp's work for a period of less than 2 months.
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clear the alleys of empty cans. Charles Blythe, who ran drawings on the first shift
at the time of Harp's discharge, testified that at the beginning of the first shift there
was a shortage of cans at the drawings machines because Harp failed to return the
empty cans to the drawings during and at the end of the third shift. Blythe stated
that he complained about this matter to Foster, and to Cox when he held Foster's
position as assistant overseer.
The testimony of the first shift employees , Spence , Hunsucker, Drewery, and Roy
Blythe, is silent as to whether they complained to Foster, their supervisor, or to
McDowell, regarding Harp, either during the week before Christmas or during
Christmas week. It is significant that Foster, to whom the complaints would be
made customarily, and who would channel them to McDowell, was not called
by Respondent as a witness. It is also significant that Respondent laid the full
responsibility on Harp for the waste and empty cans left for the first shift from
the prior second and third shifts without first establishing that the waste and empty
cans were accumulated during the third shift and not during the second shift or
even the prior first shift, or, in the alternative, that it was Harp's job to clear away
the waste and empty cans accumulated during prior shifts as well as the waste and
empty cans accumulated on the third shift. Moreover, there was no showing by
Respondent that the first shift employees who testified for Respondent knew what
shift was responsible for the accumulation of waste and empty cans that confronted
them each morning. I do not consider Roland's conclusionary statement that the
alleys had been clean at the beginning of the third shift, at the end of which Harp
had left 200 empty cans accumulated, to be an adequate showing of knowledge as
no attempt was made by Respondent to develop the basis for such a statement.
Mrs. Margaret Moody, the wife of Archie Lee Moody, the other dischargee; 16
James C. Ivey, a doffer on the third shift at the Patterson plant; Mrs. Frances Harp,
Harp's wife; and James L. Conwell, testified as rebuttal witnesses for Harp.
In rebuttal of Carawan's and Roy Blythe's denials that they had received a small
union calendar from Harp a few nights before his discharge just prior to the third
shift, Ivey testified that he saw Harp passing out such a calendar at that time at the
small gate to the Patterson plant.17 He said he did not take one as he already had
one. In rebuttal of the same denials, Mrs. Moody testified that she took one of the
calendars from Harp at the time and at the little gate, and that the calendar was a
1959 calendar. She stated she was on her way to the job she held on the third
shift in the spinning room at Patterson. Ivey could not recall the exact date, and
Mrs. Moody testified that the date followed a Tuesday or a Thursday when at a
meeting of the Union a business representative distributed the calendars.18 The
Thursday referred to was Christmas, December 25, 1958, and the Tuesday referred
to was December 23, 1958, since Harp was discharged on December 31, 1958, and
the evidence indicates that if he passed out the calendars as testified, it was done
no later than Monday, December 29, 1958.
Mrs. Harp testified that in the summer of 1958, Carawan came to the door of
the Harp home and asked her when Harp would return to work. She replied next
week, and further said that she was afraid her husband would be laid off if he did
not get back to work since quite a few employees were being laid off. According
to Mrs. Harp, Carawan said, "Nothing like that. James is a good worker. He
can keep up the job better than anyone I have had on there." Conwell, a roomer
in the Harp home, testified that he overheard the conversation Mrs. Harp had with
Carawan, and corroborated her testimony.
Carawan resumed the stand and testified that Harp had said to him "I will get
you" on two occasions ; the first, at a hearing before the State Unemployment Com-
pensation Commission on Harp's claim for unemployment compensation, and the
second on the morning of the second day of this hearing, May 6, 1959, while he
was walking along the corridor of the first floor of the County Courthouse, Halifax,
North Carolina, where the hearing was held. According to Carawan, Harp walked
up to him and acted as though he was going to hit him with his fist, and said, "I
am going to get you."
Conwell testified that he was walking with Harp at the time of the latter incident
and saw Carawan raise his hand in defense, turn around, and look in a door and
say, "Call the sheriff out here." He stated that he had no knowledge of anything
13 Mrs. Moody previously testified for General Counsel in regard to the events that
occurred prior to the conversation her husband had with Estes which resulted in his
discharge.
17 Roy Blythe testified that he did not use the small gate but the large gate to the
Patterson plant.
19 Harp testified that he passed out the calendars 1 night only.
J. P. STEVENS & CO., INC. 1373
else taking place. Employee Whitley, who had previously testified for Respondent,
testified that he and Roy Blythe were walking with Carawan at the time, and that
he saw Harp make a jump toward Carawan with his fists balled up and that Carawan
stepped back. He did not recall Harp saying anything or Carawan saying "Call
the sheriff," but did recall his saying, "Boy, you can't do this in a place like this;
put the sheriff on you," and seeing him looking in a door to see if the sheriff was
there.
Personnel Director Hux 19 was called back to the stand at this point and testified
that Harp raised a closed fist at Caraway in the course of the State Unemployment
Compensation hearing on January 27, 1959, on Harp' s claim for unemployment
compensation, and that at the conclusion of the hearing said to Carawan, "I will
get you."
The above evidence indicates clearly that Harp's discharge was the discharge of
an employee who had worked in the Patterson plant from 10 to 15 years both for
Respondent and its predecessor; who, in addition to his job of can hauling could
perform the other jobs of operating a carding machine and a picking machine or
picker, to which he was assigned when the workers regularly holding the jobs were
absent; who had been called a "good worker" in July 1958, by Carawan, his imme-
diate supervisor,20 and who was known to Respondent as an active member of the
Union and who had been interrogated-regarding his opinion of the Union and his
union activity by Carawan.
The evidence also clearly indicates that Harp was discharged during Christmas
week and the day before New Year's Day; and Superintendent McDowell who dis-
charged him was the same McDowell who while overseer of the No. 1 spinning
room at Rosemary had issued, contrary to Respondent's policy, a personnel action
slip to employee Hancock for inefficiency, threatening him therein with discharge
if he did not improve, just 5 hours after Hancock's name appeared in the local
newspaper as chairman of a committee of Respondent's employees organized to
represent such employees with respect to wages, hours, and other working conditions.
There is also clearly disclosed by the evidence that Harp was not an efficient
worker, and by his inefficiency contributed to a limitation of the efficiency and pro-
ductive capacity of fellow employees in the Patterson plant both on the first and
third shifts. However, it is also equally clear from the evidence that Respondent
had known for some time of Harp's inefficiency and condoned it, possibly because
of his ability to substitute for employees on other jobs in their absence, and because
of his long tenure as an employee.
On the other hand, the evidence does not clearly disclose a climactic event or
events that occurred in connection with Harp's employment just prior to his dis-
charge. General Counsel contends that climactic events did occur, namely the
distribution of small 1959 year calendars with the identification of the Union on
them by Harp at or about 10:45, on or about the evening of December 29, 1958, at
the little gate to the Patterson plant through which employees passed on their way
to work on the third shift, and the threatening of Harp by Carawan for distributing
them. Respondent denies that it had knowledge of any such events, and contends
that there occurred the climactic event of an accumulation of many acts of in-
efficiency by Harp, the subject of numerous complaints to assistant overseers and
Superintendent McDowell, that finally reached the "flood crest" just prior to Harp's
discharge and demanded immediate drastic action by Respondent.
I find at this point that on Harp's direct and cross-examination, considered in the
context of what occurred at Respondent's plants from the prior September 22 or
23, General Counsel established prima facie that Harp did distribute the union
calendars at or about 10:45, on or about the evening of December 29, 1958, and
that at the time Harp was threatened by Carawan for distributing them. There
remains the question whether this presumption was overcome by Respondent's
defense considered in connection with General Counsel's rebuttal.
There is Carawan's denial that he received a calendar from Harp just prior to
the third shift on or about December 29, 1958, or that he saw Harp passing out
calendars at that time, and Roy Blythe's denial that he received a calendar from
Harp or saw him distributing calendars at that time and place. There is also the
1B Hux was identified supra as the personnel director of Respondent 's four plants In
Roanoke Rapids.
`0I find that In accordance with Mrs. Harp's testimony corroborated by Harp and
Conwell that Carawan did refer to Harp as a "good worker" In July 1958, although not
necessarily Intending to convey that he was an efficient worker, but rather a useful
employee to have around the Patterson plant In view of his long experience and his
ability to fill In temporarily on other jobs.
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony that Archie Lee Moody , to whom Harp said he gave a calendar, had
not been employed by Respondent since on or about September 30, 1958. On the
other hand there is the testimony of General Counsel's witnesses Mrs. Moody and
Ivey that they saw Harp passing out calendars with the identification of the Union
on them at the little gate entrance to the Patterson plant prior to the beginning of
the third shift a few nights before he was discharged.
I credit the testimony of employees Mrs. Moody and Ivey that they saw Harp
passing out the calendars, and I also credit the testimony of employee Roy Blythe
that he did not see Harp passing out the calendars. Since Mrs. Moody actually
took a calendar from Harp, she was, therefore, aware of what it was. While Ivey
did not take a calendar from Harp, he, too, was aware of what it was as he did
not take one because after looking at it he found he already had one. Although
Mrs. Moody and Ivey could not give the exact date on which they saw Harp, their
identification of the time is adequate in view of Mrs. Moody's testimony that the
calendars were 1959 calendars and the date followed the date of the prior union
meeting held on Tuesday, December 23, 1958, and the evidence that Harp was
fired on the morning of December 31, 1958, and the calendars had to have been
passed out no later than December 29. There is also the factor that one's memory
is very apt to be hazy with respect to a specific date 4 months earlier than the
date on which the effort is being made to remember it.
Roy Blythe's testimony does not discredit Harp's, Mrs. Moody's, or Ivey's testi-
mony, since by his using the big gate to enter the Patterson plant for the third
shift, his failure to see Harp could well have been due to the fact that he did not
use the little gate where, according to Harp, Mrs. Moody, and Ivey, Harp was
distributing the calendars . In these circumstances , Harp could well have been
distributing the calendars, even though Roy Blythe did not see him doing so.
I do not consider Harp's failure at the hearing to identify a person to whom he
gave a calendar on or about December 29, 1958, to be fatal. As I have just noted,
the hearing was approximately 4 months from the date on which Harp was dis-
charged. It was only after Respondent counsel 's insistence that he name some
persons receiving them that he reluctantly named Roy Blythe and Archie Lee
Moody. He recalled clearly that he gave a calendar to Carawan because his dis-
charge was associated closely with that event and to Carawan's reaction to the
calendar and Harp's distribution of them . Harp 's inability to recall having given
calendars to Ivey and Mrs. Moody shows clearly his inability to recall any of the
persons receiving calendars except Carawan, who, as noted above, had a substantial
part in his discharge.21
A material factor contributing to the determination of the question whether Harp
distributed the calendars on or about December 29, 1958, as testified, is his logical
explanation of what occurred following the time when, according to Harp, Carawan
was handed a calendar by him, and he threw it to the ground and threatened him.
Harp testified that following this event, he received the silent treatment from
Carawan for the full period of the third shift, and on the following evening,
December 30, 1958, was told by him not to work, and to report to McDowell at
10 o'clock the following morning, December 31, 1958. Carawan testified that the
event that caused him to send Harp home and instruct him to report to McDowell
the following morning was his seeing three or four cans of waste marked the
third shift upon his arrival at the beginning of the third shift on December 30,
1958. His testimony and that of McDowell indicate that Harp reported to
McDowell on the morning of December 31, 1958, without any knowledge by
McDowell of the reason purportedly motivating Carawan to send Harp home, ex-
cept an assumption that Harp had failed to perform his duties premised on the
instruction he had given Carawan some time before to have Harp report to him
when he next failed to perform his duties, and there was Harp reporting to him.
Harp's testimony allows Carawan a full day from the end of the third shift at 7
a.m. on December 30, 1958, to 11 p.m. of the same date to disclose to McDowell
that Harp had been passing out calendars with the identification of the Union on
them at the Patterson plant, and to permit Carawan and McDowell time to
formulate a plan for getting rid of him.
I credit Carawan's testimony that on December 30, 1958, when he arrived at the
Patterson plant to begin working on the third shift, he found three or four cans
of waste marked the third shift by a first shift employee who had placed the waste
in the cans. I find, however, that the evidence presented by Respondent, upon the
analysis I have made of it above, fails to show any failures in job performance by
=.Harp testified that he gave calendars to the Jones boy and to an employee who ran
drawings. I do not consider these identifications adequate and, even though the testi-
mony is unrebutted, attribute no weight to it.
J. P. STEVENS & CO., INC. 1375
Harp other than the presence of the cans of waste that could have contributed
to the decision to terminate Harp 's employment . Carawan did not consider the
presence of the waste sufficient for Respondent to bring down the curtain on Harp
as an employee during Christmas week after his long tenure as an employee, in view
of the facts that the evidence shows Carawan did not consider this event important
enough to report it to McDowell , and he failed to rebut Harp 's testimony that he
told him to leave any waste accumulated on another shift, and his testimony that
the waste behind the frames at the beginning of the first shift was left over from
the second shift or even the prior first shift. I now find that Harp was sent home
on the evening of December 30, 1958 , because he was distributing calendars with
the identification of the Union on them at the little gate to the Patterson plant
prior to the beginning of the third shift on December 29, 1958.
D. Concluding findings
Premised on the above findings, I make the following concluding findings:
1. Interference, restraint, and coercion
I have found that on or about September 22 or 23, 1958, Respondent posted a
notice in the No. 1 spinning room of the Rosemary plant in which it was stated
that a union would be harmful to the employees, that an employee had a right to
reject union membership and activity, and to be free of pressures by other employees
designed to force them to join a union , and that union activity was banned in
Respondent 's plants during working time. This employer notice was posted after
employees were notified in the Roanoke Rapids newspaper the prior Monday,
Wednesday, and Friday of a meeting to be held on Sunday, September 21, by the
doffers employed by Respondent to discuss matters relating to wages, hours, and
working conditions in Respondent 's plants in Roanoke Rapids.
I have also found that 4 hours after a notice to Respondent and its employees
published in the newspaper on September 25, disclosed a Workers' Committee of
doffers employed by Respondent, headed by employee Hancock and employee
Moody as chairman and vice chairman , respectively , and organized to represent
employees with respect to wages, hours, and working conditions, Overseer McDowell
read to Hancock a series of charges against him for inefficiency and about an hour
later gave Hancock a personnel action report in which he was reprimanded for
failure to perform his job efficiently, including the failure to perform. a work
operation called mopping underrockers which McDowell had told Hancock in a
meeting he had with him sometime between September 22 and 25 he did not have
to do. The report also stated that unless he improved he would be replaced.
Respondent failed to offer any explanation at the hearing as to the extent , if any,
Hancock was failing to perform his duties or was otherwise inefficient, or to offer
any other testimony to rebut the inference that Hancock received the oral repri-
mand and the written personnel action report because of his participation in the
protected concerted activity disclosed by the notice in the September 25 issue of
the Roanoke Rapids newspaper.
I am not persuaded by the answers Respondent 's counsel elicited from Hancock
on cross-examination that he was still employed by Respondent at the time of the
hearing in view of Hancock's reply to McDowell upon receiving the oral reprimand
and the personnel action report that he needed his job and would do whatever
Respondent wanted him to do, and Assistant Overseer Connell's statement to
Hancock the next day that he should keep in mind the fate of the five employees
who were discharged for union activity during the prior organizational campaign.
I find that Respondent by this conduct threatened Hancock because of his union
activity disclosed by the newspaper notice of September 25. Included in this threat
was a warning that if he continued to engage in it he would be discharged. This is
evident from Connell's suggestion to him that he better talk the matter over with
his wife, and his advice to Hancock that he keep in mind the fate of the five
employees who participated in the prior organizational campaign. I find this
conduct of Respondent to be in violation of Section 8(a)(1) of the Act.22
The evidence does not disclose that Respondent posted its notice on or about
September 21 and 22 at any one of the other plants or in any one of the other
departments in the Rosemary plant. On the other hand, the evidence appears to
indicate that copies of the notice had been posted in these other places since on or
about September 20, 1956. I further find that the notice considered in isolation is
22B. M. C. Manufacturing Corporation, 113 NLRB 823, 824; Reeves Brothers, Incor-
porated, 116 NLRB 422, 423, 429.
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not violative of the Act. The employee prerogatives stated therein with respect to
refusing to join a union and resisting pressure to join a union are guaranteed by
Section 7 of the Act,23 the opinion expressed therein that a union would not be good
for the employees is an expression of opinion protected by Section 8(c) of the Act,24
and the no-solicitation rule is an employer prerogative to which Respondent is entitled
under the Act.25
The General Counsel has not sustained the burden of proving that McDowell gave
to other employees personnel action reports or oral reprimands because of union
activity or membership at or about the time he reprimanded Hancock and gave
him the personnel action report. I have discussed the paucity of evidence to support
this contention, supra.
I have found that during the period from the end of September to on or about
November 15, 1958, a number of Respondent's supervisors had conversations with
Respondent's employees about the Union or union activity. There are my findings
that Supervisor Jenkins asked employee Mullens if he signed a union card; asked his
opinion about the Union and why he was wearing a union button; and threatened
him with the loss of his job for engaging in union activity. I have found that Super-
visor Giles asked Whitby why he joined the Union and why he was wearing a union
button, and told him that Respondent's Roanoke Rapids plants might shut down
if the Union became the employees' representative, and that the same employee
Whitby was asked his opinion of the Union by Supervisors Edmunds and Smith,
with the latter also stating that the Union would be bad for the employees, Respond-
ent's mills, and the city of Roanoke Rapids. I have also found that Supervisor
White told Mills that he knew he was not happy because he was wearing a union
button, and that it looked like he would have to discharge him, and that Super-
intendent Cranford, after referring to the notice Respondent had posted in regard
to union activity, and making derogatory remarks about unions, told Butler that
Respondent could set up production standards, and then fire him if he failed to meet
the standards, and warned him to heed what he had told him. Finally there are
the findings that Supervisor Deberry, after seeing Arp wearing a union button, asked
him if he had a grudge against him and Superintendent McDowell, and then told
Arp his wearing the button was a black mark against him and McDowell; and that
Supervisor Carawan asked Harp his opinion of the Union and told him Respondent's
plants in Roanoke Rapids would close down if the Union became the representative
of Respondent's employees.
As stated above, this conduct of Respondent, consisting of interrogation and
threats, took place during the organizational activity of the Union and the Workers'
Committee of doffers, from on or about September 22 or 23 to Harp's discharge in
December 1958, and during the time the incidents involving Hancock, Moody,
and Harp occurred. I find the interrogation 26 and the threats,27 all in regard to
the Union and union membership and activity which comprise this conduct of Re-
spondent, to be violative of Section 8 (a)( I) of the Act. I further find that the
Respondent's whole course of conduct regarding the organizational activity of its
employees, the Union, and the Workers' Committee of doffers starting on or about
September 22 or 23, 1958, to the time of and including Harp's discharge on December
31, 1958, and including the posting of the employer notice on or about September
22 or 23, 1958, to be violative of Section 8(a)(1) of the Act.28 I have credited
Superintendent White's testimony as to what occurred in the conversation he had
with employee Clements in December 1958. I find that the statements made by
White are not violative of Section 8(a) (1).
20 Textile Workers Union, etc. (Personal Products Corporation), 108 NLRB 743, 748 ;
Local No . 1400 , United Brotherhood of Carpenters, etc. (Pardee Construction Company),
115 NLRB 126, 129.
24 Nutone Incorporated, 112 NLRB 1153, 1154-1155, affd. sub nom. N:L.R.B. v. United
Steelworkers of America, CIO, 357 U.S. 357.
2S Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793; N.L.M.B. v. Babcock &
Wilcox Company, 351 U.S. 105.
20 Blue Flash Express, Inc ., 109 NLRB 591 , 593; Uraber Manufacturing Company, Inc.,
111 NLRB 167, 169; Williamson-Dickie Manufacturing Company, 115 NLRB 356,
359-360 : Alamo Express , Inc., 119 NLRB 6, 7, 18 ; Mid-South Manufacturing Co., Inc.,
120 NLRB 230, 232; and Southeastern. Mills, Inc., 123 NLRB 1783.
m Plum Creek Logging Company, Inc., 113 NLRB 800, 801, 813-814 ; B.M.C. Manufac-
turing Corporation , 113 NLRB 823, 824; Cranston Print Works Company, 115 NLRB 537,
538 ; and J. H. Rutter-Rex Manufacturing Company, Inc ., 115 NLRB 388, 404.
28 Virginia Electric and Power Co. v. N.L.R.B., 319 U.S . 533, 539.
J. P. STEVENS & CO., INC. 1377
2. The discharges
a. The discharge of Archie Lee Moody
I have found that during the third shift beginning at 11 p.m. Sunday, September
28, 1958, in the spinning room of Respondent's Patterson plant in Roanoke Rapids,
employee Moody, a doffer in the spinning room, had a conversation with Estes, his
immediate supervisor, about an hour following Estes' refusal to permit Mrs. Moody,
who also worked in the spinning room under Estes' supervision, to assist Moody in
his work so that he could take a "break" with her, a custom long established in the
spinning room. In this conversation, Moody, who was identified in the local news-
paper on September 25 as vice chairman of a Worker's Committee consisting of
doffers employed in Respondent's four plants, and known as such by Estes and
Officials Crumpler, Turrentine, and Fitzgerald, asked Estes if the refusal to permit
his wife to help him applied to all husbands and wives and to friends, or if it
applied only to him and his wife. Estes refused to answer the question but repri-
manded Moody and ordered him to return to work. When Moody informed him
that his job did not need his attention as it was running, he told him to "hush" his
mouth and go on, and as Moody was about to go to the washroom to smoke, Estes
repeated that he would tell him and his wife and everybody else in the spinning
room what to do. Upon Moody's reply that he was only trying to find out if Estes'
refusal to permit his wife to help him applied to everybody in the spinning room,
Estes fired him saying he had enough of his "damn mouth."
Moody's inquiry as to whether the refusal to permit his wife to help him applied
to everybody else in the spinning room was protected activity.29 Estes knew that
Moody was vice chairman of the Workers' Committee, which I find was a labor
organization.30 While the question was asked by Moody in the interest of himself
and his wife, it was also asked in the interest of everybody in the spinning room.
The evidence shows that the practice of friends and husbands and wives helping
each other to permit them to enjoy a "break" or lunch together was a common
practice of long standing in the spinning room. The impact on the doffers gen-
erally of the discharge of Moody because he asked Estes this question is apparent
from the doffers' strike immediately following the discharge, and their strike that
began at 3 p.m. later in the day and lasted for a week.
As pointed out, Crumpler, the Patterson plant superintendent, Fitzgerald, the
assistant manager of the four Roanoke Rapids plants, and Turrentine, the vice presi-
dent in charge of the four plants, knew of the newspaper disclosure of Moody's
status as an official of the Workers' Committee prior to Moody's discharge, as
Crumpler had discussed the matter with Turrentine and Fitzgerald prior to the dis-
charge. It is significant, therefore, that neither Crumpler nor Turrentine took steps
to reinstate Moody when the facts regarding the discharge were disclosed to them.
I find that Respondent discharged Moody because of his protected concerted activity
on behalf of himself and his wife and the other persons employed in the spinning
room at the Patterson plant, and to thwart the union activity among its employees
which Respondent knew was underway in its plants as early as September 22 and
23 when it reposted the employer notice in the spinning room of the Rosemary
plant. This conduct is in violation of Section 8(a)(1) and (3) of the Act.31
b. The discharge of James O. Harp
I have found that employee Harp, who was discharged on December 31, 1958,
distributed between 10:45 to 11 p. m., on or about December 29, 1958, small 1959
year calendars with the identification of the Union on them at the little gate entrance
to Respondent's Patterson plant. Respondent's employees were entering the plant
to work on the third shift which began at I1 p.m. I have also found that he gave
a calendar to Assistant Overseer Carawan at that time and place and that Carawan
threw it to the ground and threatened Harp for distributing the calendars. There
is also the evidence, and I so find, that Carawan refused to talk to Harp for the
full time of the third shift beginning on the evening of December 29, and the fob
29 Salt River Valley Water Users Association, etc., 99 NLRB 849, 858, enfd. 206 F. 2d
825 (C.A. 9) ; and Standard Coil Products Co., Inc., 110 NLRB 412,1429-432, enfd. 224
F. 2d 465 (C.A. 1).
3N.L.R.B. v. Cabot Carbon Company, etc., 360 U.S. 203, 210-213.
ffi Olin Industries, Inc., 86 NLRB 203, 206, 238; The Ohio Oil Company, 92 NLRB
1597, 1598-1600; Tea Togs, Inc., 112 NLRB 968, 972-973. See also Roadway Express
Inc., 119 NLRB 104, 115.
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lowing evening told Harp he could not work that shift, to go home, and to report
the following morning to Superintendent McDowell. McDowell was the overseer
who reprimanded employee Hancock and gave him a personnel action report charg-
ing him with inefficiency just 4 hours after his name appeared as chairman of the
Workers' Committee of doffers in the September 25, 1958, issue of the Roanoke
Rapids newspaper. Moreover, Carawan knew that Harp had been an active mem-
ber of the Union and had joined in the strikes of the doffers at the time,. of
Moody's discharge. I also find that while Harp was noncommittal in his answers
to McDowell's questions regarding the manner in which he did his work, his
attitude did not reflect hostility to his employer, but rather an attitude that anything
he did or said would be a waste of time as McDowell was ready to discharge him.
Respondent admits that he was discharged by McDowell at the 10 o'clock meeting
on December 31.
I have also found that Respondent failed to prove its defense that it considered
Harp's known and tolerated inefficiency to have increased to such an extent by
acts occurring during the shift beginning the evening of December 29, and ending
the morning of December 30, 1958, that it was necessary to send Harp home on
the evening of December 30 at the beginning of the third shift, and discharge him
the next day.
I conclude that Harp was discharged on December 31, 1958, because he dis-
tributed calendars with the identification of the Union on them to Respondent's
employees at the little gate entrance to Respondent's plant prior to the beginning
of the third shift on the evening of December 29, 1958, and in order to thwart
the organizational activity of the Union which it knew to have been taking place
in its plants since on or about September 22 or 23, 1958. I hold this conduct of
Respondent to be violative of Section 8(a) (3) and (1) of the Act 32
Harp's outburst at the unemployment compensation hearing in terms of his
shaking his fist at Carawan during the hearing, and his saying to him at the conclu-
sion of the hearing, "I will get you," and his conduct on the second day of this
hearing on the first floor corridor of the Halifax County Courthouse,33 do not, in
my opinion, reflect one way or the other on the credibility of Harp. It could be
argued that Harp acted in a fit of frustration and indignation because of the untruth-
fulness of Carawan's testimony and because of his discharge, as well as it could
be argued that his outburst showed intemperance and vindictiveness that would
cause him to testify falsely in reprisal against Respondent and Carawan. In any
event, I attribute no weight to the evidence of this conduct one way or the other.
It is regrettable that the conduct occurred, but in some circumstances, the line
between self-control and the lack of it is very thin.
W. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations of Respondent set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and is engaging in certain unfair
labor practices, I shall recommend that it cease and desist therefrom and take
certain affirmative action which I find necessary to effectuate the policies of the Act.
Since I have found that the Respondent interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in the Act, I am convinced
that the unfair labor practices committed are related to other unfair labor practices
proscribed and that the danger of their commission in the future is to be anticipated
from the Respondent's conduct in the past. Accordingly, in order to make effective
the independent guarantees of Section 7 and thus effectuate the policies of the Act,
I shall recommend that the Respondent cease and desist from in any manner infring-
ing upon the rights of employees guaranteed by the Act.
Since I have also found that Respondent discriminatorily discharged Archie Lee
Moody and James 0. Harp because of their protected activities, I shall recommend
that the Respondent offer them immediate and full reinstatement, without prejudice
32 Edward G. Budd Manufacturing Co. v. N.L.R.B., 138 F. 2d 86, 90-91 (C.A. 3), cert.
denied 321 U.S. 773 ; Electric City Dyeing Co., 79 NLRB 872, 873-875, enfd. 178 F. 2d
-980, 983 (C.A. 3) : and Whitin Machine.Works, 100 NLRB 279, 287-288; enfd, 204 F.
:2d 883, 885-888 (C.A. 1), cert. denied 349 'U.S. 905.
83 I credit the testimony of Hux, Conwell, and Roy Blythe regarding these incidents.
BROWN-DUNKIN COMPANY, INC. 1379
to their seniority and other rights and privileges, and to make them whole for any
loss of pay suffered because of the discrimination against them.
I shall recommend that Moody's reinstatement be to his former or substantially
equivalent position. As there undoubtedly exists some ill feeling between Harp
and Assistant Overseer Carawan who supervises the cardroom at the Patterson
plant where Harp was formerly employed, I shall recommend that Respondent offer
him reinstatement to the same type of position he formerly held in the cardroom at
the Patterson plant, or to a substantially equivalent position, but in one of the other
cardrooms or departments that Respondent operates in its four Roanoke Rapids
plants. I am of the opinion that the conduct of Harp at the unemployment com-
pensation hearing and in the first floor corridor of the Halifax County, North
Carolina, Courthouse at the hearing of this matter, was not of such a nature that
would cause his reinstatement as I have recommended to interfere with the efficient
operation of Respondent's plants or the best interests of the other employees of
Respondent.
My recommendation to make Moody and Harp whole for loss of pay shall
include the provision that this be done by a payment to them of a sum of
money equal to what they would normally have been paid in Respondent's employ
from the date of their discharge to the date of Respondent's offer of reinstatement,
less their net earnings during the said period. Loss of pay shall be computed upon
a quarterly basis in the manner established by the Board in F. W. Woolworth Com-
pany, 90 NLRB 289.
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. The Respondent is engaged in commerce and the Union is a labor organization,
all within the meaning of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and
is engaging yin unfair labor practices within the meaning of Section 8 (a),(l) of the Act.
3. By discharging employee James O. Harp and thereby discriminating against
him to discourage membership in Textile Workers Union of America, AFL-CIO,
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) and (1) of the Act.
4. By discharging employee Archie Lee Moody and thereby interfering with,
restraining, and coercing his employees with respect to their rights under Section 7
of the Act, and discriminating against Moody to discourage membership in Textile
Workers Union of America, AFL-CIO, and the Workers' Committee of doffers
employed by Respondent, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) and (3) of the Act..
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Brown-Dunkin Company, Inc. and Building Service Employees'
International Union , Local No. 245 and Anderson -Rooney
Operating Company, Party to the Contract . Case No. 16-CA-
1047. December 31, 1959
DECISION AND ORDER
Upon a charge duly filed on November 8,1957, by Building Service
Employees' International Union, Local. No. 245, and served upon
Respondent Brown-Dunkin Company, Inc., on November 12, 1957,
the General Counsel of the National Labor Relations Board, by the
Regional Director for the Sixteenth. Region, issued a complaint herein
on January 16, 1958, against Respondent, alleging that the Respond-
125 NLRB No. 128.