Jasper National Mattress Co.

National Labor Relations Board - Board Decisions

Mar 31, 1950

89 N.L.R.B. 75 (N.L.R.B. 1950)

In the Matter Of -JASPER NATIONAL MATTRESS COMPANY and TEXTILE'.
WORKERS UNION OF AMERICA, CIO and UPHOLSTERERS INTERNA-
TIONAL UNION OF NORTH AMERICA, AFL, PARTY TO THE CONTRACT
In the Matter Of JASPER NATIONAL MATTRESS COMPANY and AUSTIN
SMIT:I-I
In the Matter Of JASPER NATIONAL MATTRESS COMPANY and JOHN
LEE MCGUFF
Cases Nos. 10-C-2038,10-CA-36, and 10-CA-47.-Decided
March 31,1950
DECISION
AND
ORDER
On August 15, 1949, Trial Examiner Eugene E. Dixon 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
Intermediate Report attached hereto. He also found that the Re-
spondent had not engaged in certain other unfair labor practices
alleged in the complaint .and recommended dismissal of these allega-
tions. Thereafter the Respondent filed exceptions to the Intermediate
Report.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this proceeding to a three-
niember panel [Members Houston, Reynolds, and Murdock].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions filed by the Respondent , and the entire
record in the case, and hereby adopts the findings, conclusions, and
I Section 8 (1), (3), and ( 5) of the National Labor Relations Act, which the Trial
Examiner found were violated , are continued in Section 8 (a) (1), (3 ). and (5) of the
Act, as amended by the Labor Management Relations Act, 1947.
S9 NLRB No. 7.
75
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommendations of the Trial Examiner; with the following additions
and modifications.'
1. We agree with the Trial Examiner's -findings that the Respondent
in July 1946 and on various occasions thereafter engaged in inde-
pendent violations of Section 8 (1) of the Act by its interrogation
of employees,3 coercive statements,4 and a unilateral wage increase
designed to restrain and coerce its employees.5
. 2. We also adopt the Trial Examiner's finding that on and after
July 22, 1946, the Respondent refused to recognize and bargain with
the Union thereby violating Section 8 (5) and (1) of the Act.
3. Although the Trial Examiner found that the Respondent un-
lawfully assisted the AFL by recognizing it and by signing the con-
tract of October 19, 1946, he recommended that the allegations of the
complaint that the Respondent contributed financial aid or other sup-
port to the AFL be dismissed.e We agree with the Trial Examiner
as to the facts and as to his finding that the recognition and the exe-
cution of the contract constituted unlawful assistance ; for that very
reason, however, we are constrained to reject his recommendation for
dismissal of the relevant allegations in the complaint.
We find that these actions by the Respondent constituted assistance
to the AFL violative of Section 8 (1) of the Act. The AFL was not
the freely chosen majority representative of the employess when recog-
nition was awarded and the contract was executed, but, rather, was the
beneficiary of the Respondent's unfair labor practices which had frus-
trated the employee's original free choice of the Union as their bar-
gaining representative.7 As the Board has said, employees join labor
unions in order to secure collective bargaining s If the employer
2 We do not adopt footnote 2 of the Intermediate Report insofar as it contains an
implication that the National Mattress-Company is a respondent in this proceeding; the
Jasper National Mattress Company is the only Respondent. We do find, however, that
McVay, Farriss, and Mays, officials of the National Mattress Company, who, as described
in the Intermediate Report, acted for the Respondent in a number of instances in 1946,
were agents of the Respondent, acting in their capacity as such.
3 N. L. R. B. v. Minnesota Mining & Mfg. Co., 179 F. 2d 323 (C. A. 8), 25 LRRM 2262 ;
Empire Pencil Company, Division of Hassenfeld Bros., 86 NLRB 1187; and Standard-
Coosa-Thatcher Company, 85 NLRB 1358.
4 N. L. R. B. v. Electric City Dyeing Co., 178 F. 2d 980 (C. A. 3), 25 LRRM 2234.
5 See N. L. R. B. V. Electric City Dyeing Co., supra; and J. B. Cook Auto Machine
Company, Inc., 84 NLRB 688.
B The complaint does not allege a violation of Section 8 (2). With respect to the unlaw-
ful recognition and signing of the contract, however, the remedy is the same whether
this be viewed as a violation of 8 (1) or 8 (2).
7 That the Union's majority status is presumed to continue in the face of the Respond-
ent's unfair labor practices and the consequent defection to the AFL has been well
established. Franks Bros. Company v. N. L. R. B., 321 U. S. 702; Semi-Steel Casting Co.
v. N. L. R. B., 160 F. 2d 388 (C. A. 8), cert. den. 332 U. S. 758, and the cases cited
therein. See also N. L. R. B. v. Highland Park Manufacturing Company, 110 F. 2d 632,
and Colorado Fuel and Iron Corporation v. N. L. R. B., 121 F. 2d 165.
8 Karp Metal Products Co., Supplemental Opinion at 51 NLRB 621 , Decision and Order
at 42 NLRB 119 ; enfd. 134 F. 2d 954 and supplemental decree entered October 23, 1943 ;
JASPER NATIONAL MATTRESS COMPANY, 77
defeats this purpose by refusing to bargain with the freely chosen
representative, the employees must perforce turn to another agent,
acceptable to the employer, or forego collective representation alto-
gether. This is precisely what happened in this case. Finally, the
Respondent'here fortified the AFL's legally untenable position as bar-
gaining representative by awarding it exclusive recognition and a
contract. This conduct operated as additional assistance to the AFL
and interference, restraint, and coercion of the employees in the exer-
cise of their right to a bargaining agent of their own free choice.
The contract with the AFL provided for discriminatory hiring.
7-Iellce, the contract was not only illegal for the reasons discussed above,
but also because it provided for discrimination and did not satisfy
the requirements of the proviso of Section 8 (3) that, among other
things, it be executed with a labor organization which is the repre-
sentative of the employees as provided in Section 9 (a).9
4. The Trial Examiner found, and we agree, that the Respondent
discriminatorily discharged seven employees on July 19, 1946, in
violation of Section 8 (1) and (3) of the Act.
All seven of these employees were discharged without warning,
simultaneously and abruptly, 2 days after the Union's first meeting.10
All of them had attended that meeting and joined the Union. Like the
Trial Examiner, we are satisfied and find,11 that the Respondent was
aware of the dischargees' interest in the Union. Neither the general
union talk in the plant, prior to July 17, nor the attendance of em-
ployees at the July 17 meeting in the courthouse of this small town
could have escaped the Respondent's notice.12 Finally, there can be
no doubt, on this record, that the Respondent was hostile to the Union,
and disposed to violate the Act, if necessary, to avoid dealing with the
Union. All these circumstances persuasively combine to establish
cert. denied 322 U . S. 728. See also Ever Ready Label Corporation, 54 NLRB 551 ; Fine
Art Novelty Corporation , 54 NLRB 480 ; and S. H. Camp and Company, 52 NLRB 1078.
0 See Trent Broadcast Corporation, 50 NLRB 739 at 748.
10 We do not rely on the Trial Examiner's conclusions as to the significance of the fact
that the seven employees discharged on July 19 received written termination notices, as
we do not find substantial supporting evidence in the record as to the Respondent's'
customary procedure.
n It has long been held that the Board , like other judicial and quasijudicial bodies,
is not required to deny relief because of the absence of direct evidence but is justified
in relying on circumstantial evidence . N. L. R. B. v. Abbott Worsted Mills, 127 F. 2d 438.
and N . L. R. B. v. Link -Belt Co., 311 U. S . 584, 602. See also Quest -Shoo Mark Brassiere
Co., Inc ., 80 NLRB 1149 ; and Brezner Tanning Co ., Inc., 50 NLRB 894.
u As observed by the Trial Examiner , Plant Manager Elkins' brother-in-law, one
Strickler, worked in the plant , which had a complement of only 35 employees , and knew
of the employees ' union activities . Moreover , the record shows not only that Jasper
is a small town , but also that its leading citizens were extremely interested in the
Respondent 's enterprise.
We do not rely , however, on Hoover Smith 's testimony that he saw Hanneman drive
around the courthouse square, as we do not think his testimony supports a conclusion
that the incident took place before the discharges.
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a prima facie case that the discharges on July 19 were made to dis-
courage membership in the Union and activity in its behalf. It,
therefore, devolved upon the Respondent to come forward with reason-
ably convincing evidence to show that the discharges were actually
for nondiscriminatory reasons." We agree with the Trial Examiner's
conclusion that the evidence adduced by the Respondent to explain
these discharges is unconvincing, and inadequate to counterbalance
the evidence supporting the allegations of the complaint as to the
seven employees in question.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, Jasper National
Mattress. Company, Jasper, Alabama, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain with Textile Workers Union of America,
affiliated with the Congress of Industrial Organizations, as the ex-
clusive representative of its employees in the unit heretofore found
appropriate with respect to rates of pay, wages, hours of employment,
and other conditions of employment;
(b) Recognizing Upholsterers International Union of North
America, Local Union 435, affiliated with the Aiiierican Federation
of Labor, as the exclusive representative of its employees for pur-
poses of collective bargaining, unless and until such organization shall
have been certified by the National Labor. Relations Board as the
exclusive representative thereof ;
(c) Giving effect to its agreement of October 19, 1946, as supple-
mented November 5, 1947, with Upholsterers International Union of
North America, Local Union 435, affiliated with the American Federa-
tion of Labor, or to any extension, renewal, modification, or supple-
ment thereof, or to any superseding agreement with said labor organi-
zation, unless and until such organization shall have been certified
by the National Labor Relations Board as the representative of Re-
spondent's employees, provided that any such extension, renewal, modi-
fication, or supplement of said agreement or any subsequent agreement
shall conform to the provisions of the National Labor Relations Act,
as amended, and provided further that the Respondent in complying
herewith shall not be required to vary the wages, hours of employment,
rates of pay, seniority, or other substantive features of the employment
" Universal. Camera Corporation ; 79 NLRB 379 ,' enfd . 179 F. 2d 749 ( C. A. 2), 25
LRRM 2256.
JASPER NATIONAL MATTRESS COMPANY 79
relationship established by its agreement of October 19, 1946, as
supplemented November 5, 1947, or by any subsequent agreement with
said organizations;
(d) Discouraging membership in Textile Workers Union of
America, affiliated with the Congress of Industrial Organizations,
or any other labor organization of its employees, by discriminatorily
discharging or refusing to reemploy, by discriminatorily refusing
employment., or by discriminating in any other manner in regard to
hire or tenure of employment or any term or condition of employment ;
(e) Encouraging membership in Upholsterers International Union
of North America, Local Union 435, affiliated with the American
Federation of Labor, by giving preference as to hire or tenure of
employment, or any term or condition of employment based on mem-
bership therein except as such preference shall have been established
by agreement valid under the provisions of the National Labor
Relations Act, as amended ;
(f) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form,
join, or assist Textile Workers Union of America, affiliated with the
Congress of Industrial Organizations, or any other labor organization,
to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purposes of collective
bargaining or other mutual aid or protection as guaranteed in Section .7
of the amended Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the amended Act :
(a) Offer those employees named in Appendix A reinstatement in
the manner set forth in the section of the Intermediate Report entitled
"The Remedy" who have not been reinstated or offered reinstatement;
(b) Make whole in the manner set forth in the section of the Inter-
mediate Report entitled "The Rennedy" the individuals whose names
appear in Appendix A for any loss of wages they may have suffered
by reason of the Respondent's discrimination against them;
(c) Withdraw and withhold all recognition from Upholsterers In-
ternational Union of North America, Local Union 435, affiliated with
the American Federation of Labor, as the exclusive representative of
its employees for the purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, or other conditions of em-
ployment unless and until said organization shall have been certified
by the National Labor Relations Board as the exclusive representative
of its employees in an appropriate unit;
(d) Recognize and bargain collectively with Textile Workers Union
of America, affiliated with the Congress of Industrial Organizations.
so DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as the exclusive representative of all its employees, excluding execu-
tives, clerical employees, guards, professional employees, and, super-
visors as defined in the amended Act, and if an understanding is
reached, embody such understanding in a signed agreement;
(e) Post at its Jasper, Alabama, plant, copies of the notice attached
hereto and marked Appendix A.14 Copies of said notice, to be fur-
nished by the Regional. Director of the Tenth Region, shall, after
being signed by Respondent's representative, be posted by Respondent
immediately upon receipt thereof and maintained by it for sixty (60)
consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices are not altered,
defaced, or covered by any other material ; and
(f) Notify the Regional Director for the Tenth Region in writing
within ten (10) days from the date of this Order what steps the
Respondent has taken to comply therewith.
IT IS FURTHER ORDERED that the complaint insofar as it alleges that
the Respondent discriminated against Arlen Jacks, and engaged in
surveillance of the union meetings and activities of its employees, be,
and it hereby is, dismissed.
APPENDIX A
NOTICE TO ALL L' MPLOYEES
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 recognize UPHOLSTERERS INTERNATIONAL UNION OF
NORTH AMERICA, LOCAL UNION 435, affiliated with the AMERICAN
FEDERATION OF LABOR, as the exclusive representative of our em-
ployees in our Jasper, Alabama, plant for the purposes of collec-
tive bargaining, unless and until said organization shall have been
certified by the National Labor Relations Board as said repre-
sentative.
WE WILL NOT give effect to our agreement dated October 19,1946,
as supplemented November 5, 1947, with UPHOLSTERERS INTER-
NATIONAL UNION OF NORTH AMERICA, LOCAL UNION 435, affiliated
with the AMERICAN FEDERATION OF LABOR, or to any extension,
renewal, modification, or supplement thereof, or to any supersed-
ing agreement with said union, unless and until said union shall
'* In the event that this Order is enforced by decree of a United States Court of
Appeals, there shall be inserted before the words, "A DECISION AND ORDER." the
words, "DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
JASPER NATIONAL MATTRESS COMPANY 81
have been certified by the National Labor Relations Board as the
representative of employees in an appropriate unit, and unless
said agreement shall conforu-i to the provisions of the National
Labor Relations Act, as amended.
AVE WILL NOT encourage membership in UPHOLSTERERS INTER-
NATIONAL UNION OF NORTH AMERICA, LOCAL UNION 435, affiliated
with the AMERICAN FEDERATION OF LABOR, or any other labor
organization, by giving preference as to hire or tenure of employ-
ment or any term or condition of employment based on member-
ship therein, except as such preference shall have been established
by agreement in conformity with the provisions of the National
Labor Relations Act, as amended.
WE WILL NOT refuse to bargain collectively with TEXTILE WORK-
ERS UNION or AMERICA, affiliated with the CONGRESS OF INDUSTRIAL
ORGANIZATIONS, as the exclusive representative of our employees
in the bargaining unit described herein with respect to rates of
pay, wages, hours of employment, or other conditions of employ-
ment.
WE WILL BARGAIN collectively with TEXTILE WORKERS UNION OF
AMERICA, affiliated with the CONGRESS OF INDUSTRIAL ORGANIZA-
TIONS, as the exclusive representative of all of our employees in
the bargaining unit described below and, if an understanding is
reached, we will embody such understanding in a signed agree-
ment. The bargaining unit is :
All employees, excluding executives, clerical employees,
guards, professional employees, and supervisors, as defined
in the National Labor Relations Act as amended.
WE WILL MAKE WHOLE the following employees for any loss of
pay suffered as a result of discrimination against them and offer
each of them who has not already been reinstated or offered rein-
statement immediate and full reinstatement to his former or sub-
stantially equivalent position without prejudice to his seniority or
any other rights and privileges previously enjoyed.
James H. Smith John L. McGuff
William E. Nelson Delma Watts
L. B. Walker Charles Fox
Austin Smith
All of our employees are free to become or remain 'members of
TEXTILE WORKERS UNION OF AMERICA, affiliated with the CONGRESS of
INDUSTRIAL ORGANIZATIONS, or any other labor organization. We will
not discriminate in regard to hire or tenure of employment or any term
$`2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
JASPER NATIONAL MATTRESS COMPANY,
Employer.
By---------------------------------------
(Representative) (Title)
Dated _------------------------------
This notice must remain posted for 60 days from the date hereof,
and Inust riot be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. ShaUy 0. Wise, for the General Counsel.
Mr. Joe A. McVay, of Huntington, W. Va., and 3Ir. Herman W. Maddox, of
.Jasper, Ala., for the Respondent.
Mr. J. Purnell Maloney, for the Textile Workers Union of America, CIO.
STATEMENT OF THE CASE
Upon charges duly filed in Case No. 10-CA-36 by Austin Smith, an individual,
in Case No. 10-CA-47 by John Lee McGuff, an individual, and in Case No. 10-C-
2038 by Textile Workers Union of America, CIO, herein called the Union and
sometimes the CIO, and in accordance with an order elated August 13, 194S, of
the General Counsel of the National Labor Relations Board, called herein the
General Counsel and the Board, respectively, consolidating the three cases,
the General Counsel by the Regional Director for the Tenth Region (Atlanta,
Georgia) on the same date issued a complaint against Jasper National Mattress
Company of Jasper, Alabama, herein called the Respondent, alleging that the
Respondent had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (1), (3), and (5) and Section 2
(6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act, and as reenacted Section 8 (a) (1), (3), and (5) and Section 2 (6)
and (7) of the Labor Management Relations Act of 1947, 61 Stat. 136, herein
called the amended Act. Copies of the order of consolidation, the complaint,
the charges, and the notice of hearing were duly served upon the parties.
With respect to the unfair labor practices, the complaint alleges in substance
that the Respondent: (a) through certain named officers and agents from July
1946 and thereafter questioned its employees concerning their union member-
ship and activities; (b) conducted surveillance of union meetings and activities;
(c) promised increased pay and improved working conditions if employees
rejected the Union as their representative; (d) granted an increase in wages
to its employees for the purpose of influencing the employees' selection of a
bargaining agent; (e) warned and threatened its employees to refrain from
membership in and activities on behalf of the Union; (f) on or about July 19,
1946, terminated the employment of seven named employees and on or about
August 2, 1946, terminated an additional employee for the reason that they
joined and assisted the Union and engaged in concerted activities for the pur-
pose of collective bargaining and that the Respondent for the same reason
failed and refused to reinstate such employees; (g) on or about August 1946 and
thereafter assisted Upholsterers International Union of America, AFL (herein
referred to as the AFL) and contributed financial aid and other support to it;
and (h) on or about July 19, 1946, and thereafter refused to recognize the
JASPER NATIONAL MATTRES'S COMPANY 83
Union and bargain collectively with it as the exclusive representative of
Respondent's employees in an appropriate unit.
Respondent in its answer denied engaging in any unfair labor practices.
Pursuant to notice, a hearing was held at Jasper, Alabama, from November
15 to November 20, 1948, inclusive, before Eugene E. Dixon, the undersigned
Trial Examiner duly appointed by the Chief Trial Examiner. The General
Counsel and the Respondent were represented by counsel and participated in
the hearing. The CIO was represented by an official representative but the
AFL was not represented and did not enter an appearance. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues was afforded all parties.
At the beginning of the hearing, the General Counsel's motion to amend the
complaint to add the words "party to contract" after the letters "AFL" in the
caption was granted over objection. Also granted over objection on the
grounds of surprise was the General Counsel's motion to amend paragraph NI
of the complaint by adding the allegation that the Respondent on or about
October 19, 1946, entered into a contract with the AFL for the exclusive repre-
sentation of its employees at a time when the question concerning representa-
tion was pending. and while Respondent was refusing to bargain with the CIO;
that such contract was and is illegal and void. Further amendment of the
complaint was allowed over objection in changing line 2 of paragraph XV so as
to read "allegations contained in paragraphs VII, VIII and IX and XI above."
Upon motion by the General Counsel pursuant to Section 203.20 of the Board's
Rules and Regulations, aeries 5, as amended August 18, 1948, the Respondent was
ordered to amend its answer by setting forth more specifically a short and simple
statement of the facts which constituted the grounds of defense to the alleged dis-
criminatory discharge of its employees as set forth in paragraphs V and VI
of the complaint. This order was complied with in form but not in substance
by the Respondent. The undersigned informed Respondent that he did not con-
'sider the Respondent's action to be compliance with his order but that he would
reserve whatever action he might take until the issuance of the Intermediate
Report. It appears that no action in this respect is permitted by reason of the
Board's order dated June 26, 1949, in Columbus Mllfg. Co., Case No. 10-C-2056,
where a similar order by a trial examiner was appealed directly to the Board and
the trial examiner's ruling reversed. A motion by Respondent requesting separa-
tion of witnesses was granted.
At the end of the hearing, the General Counsel's motion to conform the com-
plaint to the proof in matters of form was granted without objection. Rulings
were deferred on Respondent's motions to strike certain testimony, to strike
paragraph IX of the complaint as to assistance and alleged financial or other
support of the AFL by Respondent, and to strike the allegations of paragraph XII
of the complaint alleging certain S (1) acts on the part of Respondent. These
motions are disposed of as indicated herein.
On November 20, 1948, the hearing was adjourned to allow the General Counsel
.and Respondent the opportunity to take certain depositions. These depositions
were taken, duly received, and by order of the undersigned, made part of the
record herein. Rulings on the admission of exhibits and testimony in. these
depositions are covered in the body of this report. The hearing was officially
closed by order of the undersigned dated December 15, 1948. At the conclu-
sion of the oral testimony, the General Counsel and Respondent participated
in oral argument. Although advised of their right to file briefs as well as pro-
posed findings of fact and conclusions of law, none has been received.
889227-51-vol. 89-7
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case and from his observation of the witnesses
(except Delma Watts and Hosmer Scott , the deponents referred to above), the
undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Jasper National Mattress Company is an Alabama corporation engaged in
or having the facilities to engage in the manufacture of mattresses, box springs,
and beds at all times material herein at a plant in Jasper, Alabama. During the
I.2-month period immediately preceding this hearing, which period is representa-
tive of all times material to the issues in this proceeding, the Respondent pur-
chased raw materials consisting principally of cotton, wood, steel, and cloth
valued in excess of $100,000, 60 percent of which was purchased outside the
State of Alabama, and shipped in interstate commerce to the Jasper, Alabama,
plant. During this same period, the Respondent manufactured and sold mat-
tresses, box springs, and beds valued in excess of $125,000, 50 percent of which was
sold and shipped to points outside the State of Alabama. Respondent admits
and the undersigned finds that the Respondent is engaged in commerce within
the meaning of the Act and the amended Act.
H. THE ORGANIZATIONS INVOLVED
The Textile Workers Union of America, CIO, and the Upholsterers Inter-
national Union of North America, Local 435, AFL, are labor organizations ad-
mitting to membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICE
A. Sequence of events'
Early in 1946, the Respondent,2 after negotiations with the Jasper Chamber
of Commerce which played a part in inducing Respondent to open a plant for
the manufacture of mattresses, box springs, and beds at Jasper, Alabama, took
over premises in that city which formerly had housed a cotton mill but which
then was being used as a cotton warehouse. Before the manufacturing process
could start, it was necessary to move out the cotton then stored on the premises,
renovate the building, and install machinery. By about May 15, the above tasks
1 These facts are not disputed or are based on undenied and credited testimony except
as otherwise indicated. The events in question all took place in 1946 unless shown
otherwise.
2 At the outset of the hearing and throughout its course, Respondent's counsel, both
as advocate and witness, was reluctant to admit any identity of interest or ownership
between the Jasper National Mattress Company, an Alabama corporation, and the
National Mattress Company, a West Virginia corporation, other than to state that the
latter sold "services" to the former. This attitude apparently resulted from Counsel's
mistaken theory that Section 10 (b) of the amended Act should have a retroactive effect.
Electric Auto Lite Company, 80 NLRB 1601 ; Old Colony Box Company, 81 NLRB 1025 ;
Shawnee Milling Company, d/b/a Pauls Valley Milling Company, 82 NLRB 1266. While
there is considerable evidence in the record regarding the close connection between Jasper
National Mattress Company and the National Mattress Company, it is unnecessary to
inquire into the exact, nature of the connection since the record clearly reveals that
in the matter of labor relations, National Mattress Company spoke for and acted on behalf
of Jasper National Mattress Company. This was admitted in some measure by McVay,
Respondent's Counsel at the hearing and personnel director during the events which
occurred in 1946. The term Respondent as used herein may on occasion be used to
identify National Mattress Company as well as Jasper National Mattress Company,
depending on its context.
JASPER NATIONAL MATTRESS COMPANY 85
were sufficiently accomplished to allow Respondent to enter the production
phase of its operations. Except for a nucleus of experienced employees from
other of Respondent's plants, chiefly, Huntington, West Virginia, all help was
recruited locally and was inexperienced. Of the employees who had been hired
to move the cotton and assist in the preparation of the plant for operations,
several remained on the payroll when production began.
Sometime prior to July 17, the employees were considering the feasibility of
forming a union. This was a topic of general discussion at the plant at the
time. At a meeting held at the Jasper Courthouse on July 17, a number of the
employees signed membership application cards in the CIO. Two days later
the employment of seven employees who joined the Union was terminated by
Respondent. These terminations together with an additional one by Respondent
on or about August 2, are claimed by the General Counsel to have been the result
of discrimination against the employees because of their union activities.
Respondent contends that the chief reason for the termination was a lack of
work because of a shortage of materials causing an over-manned condition beyond
the tick room and in some instances because of the inability of the employee to per-
form the job or because of a lack of aptitude of the employee for the job. On July
22, the Union through its international representative notified Respondent that
a majority of its employees had designated the Union as its bargaining agent and
requested that the Respondent negotiate with it for the purpose of entering into a
collective bargaining agreement. At the same time the Respondent was requested
to reinstate the employees terminated on July 19. The Union was advised by
E. D. Elkins, the plant manager, that he had no authority to act in the above
matters but that he would inform Joe A. McVay, the personnel director of Respond-
ent located in Huntington, West Virginia, of the Union's demands. The Union
heard nothing further from Respondent until the first part of September at
which time the employees had gone out on strike. In the meantime, about a
week or 10 days after the initial organization meeting of the Union at the Court-
house and the termination of said employees on July 19, two officials of Respond-
ent from Huntington arrived at Jasper and spoke to the employees as a group
at the plant as well as individually about working conditions and the Respond-
ent's plans for the future. In these talks the employees were informed that a
job evaluation and incentive plan and a wage increase were being inaugurated
effective immediately. This wage increase was reflected in the employees' pay
envelopes about a week or 10 days after they were notified of the increase due
to the fact that it was customary for Respondent to hold back about a week or
10 days' wages. Prior to this time, on July 23, the Union had filed a petition
with the Board for a certification of representatives. Thereafter, on August
19, the Union filed with the Board its first charge of unfair labor practices against
Respondent. It is the General Counsel's contention that by failure of the
Respondent to get in touch with the Union until the strike occurred it refused
to bargain with the Union in violation of Section 8 (5) of the Act and that such
refusal has continued to the present time, constituting a violation of Section
8 (a) (5) of the amended Act. The General Counsel also contends that the uni-
lateral granting of the wage increase by Respondent shortly after the Union
was formed and demand made on Respondent for recognition and bargaining
constituted an interference by Respondent with the rights of the employees as
guaranteed under the Act and violated Section 8 (1) thereof.
Respondent contends that it was not required to take any affirmative action
with respect to the Union's request for recognition and bargaining in view of
the Union's petition to the Board for certification of representatives. Respondent
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also contends that the job evaluation and incentive plan was contemplated as
part of an over-all plan for various of "Respondent's" plants conceived and ar-
ranged prior to any union organization at Jasper and had no significance with
respect to the employees' union activity.
As indicated above, on or about August 30, the employees not having been able
to prevail upon Respondent to recognize and bargain with the Union or to rein-
state the terminated employees, went out on strike. Shortly after the strike
started, McVay arrived from Huntington and with Elkins attended a meeting
with representatives of the Union and the Jasper Chamber of Commerce at the
offices of the Chamber of Commerce. The Respondent's position at this meeting
was that the Union should call off the strike, return to work under the conditions
as they were when the strike was called, and let the matter of representation
be settled by a Board election. The Union's position was that the Respondent
should reinstate the terminated employees, recognize the Union, enter into a
collective bargaining contract and cease and desist from antiunion activity.
No concessions were offered by either party. A few days later a State Court
injunction dispersed the picket line and the strike ended.
On September 9, the AFL filed a petition with the Board for a certification of
representatives. On September 16 a committee of five employees, all members
of the Union, met with the executive committee of the Chamber of Commerce
at which time the employees' committee agreed to a proposal to be made to
Respondent "to reopen the mattress plant with the same employees and condi-
tions that existed on the day the plant was closed awaiting the decision of the
National Labor Relations Board with reference to the question they are to decide."
On September 18, the Union was permitted without prejudice to withdraw its
petition for certification of representatives.
Sometime between the end of the strike and October 19, the employees were
notified by various individuals (none of whom were identified with management)
that the AFL was holding a meeting and that if the employees wanted the plant
reopened, they should join the AFL. At an organizational meeting thereafter
a number of the employees did join the AFL and a local union was formed.
The plant, however, remained closed while efforts apparently were made by
Respondent to get action on the petition for certification of representatives filed
with the Board by the AFL.
On October 19, the Respondent entered into a collective bargaining agree-
ment with the AFL. However, the plant did not immediately reopen but re-
mained closed until the first part of December at which time Respondent,
relying on what it contends to be an authorization from a Field Examiner of
the Board to reopen the plant, did resume operations.
B. Interference, restraint, coercion
About 10 days after the organizational meeting of the Union on July 17,
Joe A. McVay, personnel director of Respondent, and Arnold Farriss, in charge
of engineering and job evaluation for all of Respondent's plants, arrived in
Jasper, spending 3 or 4 days at the plant. During the course of this visit, among
other things, the employees were called from their work for individual interviews
about their employment with McVay and Farriss. Pertinent parts of the testi-
mony regarding these interviews is set forth as follows :
1. Pierce Baldwin, former employee (interview with Farris).
Q. All right. You told him who you were; what else did you say?
A. He wanted to know how I was getting on.
JASPER NATIONAL MATTRESS COMPANY 87
Q. What (lid you tell him?
A. Heard [sic] had a little trouble up there. I told him we didn't have
no trouble. Most of them joined the union, all of them but four or five,
trying to get a little bit more money, just getting 55 cents an hour.
(Interview with McVay.)
Q. Well, when you got in there, what happened?
A. Well, about the same questions.
Q. Well, tell us about it, to the best of your recollection, what the words
were.
A. He asked me what the trouble was out at the plant, and I told him
we didn't have no trouble out there. Most of them had joined the union
and was wanting more money, just getting 55 an hour. He said if they
signed that little card his hands would be tied and he couldn't do anything.
2. Arlen Jacks, an alleged discriminatory dischargee (interview with McVay).
Q. Well, what else did he say, if anything?
A. And he heard something about the union and he'd rather that they
didn't have it; said it would tie their hands; that they could do more for
us without than they could with it.
3. Samuel W. Cain, currently employed by Respondent (interview with
Farriss).
.
Q. Well, what happened when you got into the office?
A. Well, when I got into the office, he started talking to me about the
scenery down here and about the pine trees and everything, said something
unusual, lie hardly ever saw many of them. And he went on and he says,
brought up the subject of the union. He said to me, "Have you signed one
of them little cards?" I told him "Yes, sir." He says, "Well, maybe it
hadn't gone too far yet. If it is do over, would you sign another?" And I
said "Yes, sir." He said, "Well, if you let the company handle their business
like they wanted, that you all would be the highest paid textile workers in
the South."
(Interview with McVay.)
Q. What happened there?
A. Well, Mr. McVay talked to me kind of on the same business and told
me if we didn't have a union over there, that we'd have better pay down
here in the South than any other textile workers that was around here.
That's about all they said about that.
4. Gertrude Musgrove, still an employee of Respondent but in a temporarily
laid-oft status (interview with McVay).
Q. What did Mr. McVay say to you?
A. Well, lie was talking to me about the rate of pay and how-the kind
of job I had. He thought I had a responsible job and didn't I think that
I needed more pay, and he thought that if I didn't join the union, then,
well-that the plant-the company could do more for us than a union could,
and talked about the recreation that was bringing to the plant or would
bring later if we could do it, if the people would let them do it.
Q. Did you have anything to say to him?
A.. Well, not particular only just answered questions.
Q. Do you remember what particular questions lie asked you?
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Nothing more than just asked me if I had signed a union card, if I
had been to the union meeting, and I told him I had.
5. Johnnie Hyche Glazier, former employee (interview with Farriss).
Q. All right, now, do you recall whether or not he mentioned the union
in that conversation?
A. Yes, he asked me had I join the union.
Q. What did you tell him?
A. I told him no. He asked me was I going to. I said, "Yes, tonight",
and that why I was thinking of the date back from them.
Q. State whether or not Mr. Farriss said anything about the company
being able to do more for the workers than the union.
A. Well, he asked about the union and told about the production and
something was said about the company could do as much for us as the union
if we left the union off.
Farriss did not testify. On the witness stand McVay, while admitting talking
to the employees as a group and also individually, denied asking any of the fore-
going questions or making any of the foregoing comments. As against McVay's
denial I credit the above witnesses with varying degrees of conviction. Musgrove
and Cain, who impressed me as the most reliable of the group, had perhaps less
reason to be objective and forthright than the rest, yet their testimony impressed
me as being exactly that. Glazier and Baldwin,' who were no longer with Re-
spondent and to that extent presumably neutral, impressed me as being honest
in their testimony although Glazier (as did most witnesses) appeared to have
difficulty in recollecting events, and Baldwin in articulating. Of the five wit-
nesses I would class Jack's as the least reliable, yet in this resolution I see no
reason to discredit him. McVay, on the contrary, is in the unfortunate position
of being both advocate and witness in this case. As advocate it is only natural
that he would be extremely interested in the outcome. This fact plus his re-
luctance and, at times, refusal to answer questions, and his convenient lack of
knowledge or memory on various points on which as counsel, if not witness, he
normally should have been informed, prevent my crediting his denial herein.
For an employer to question his employees about their union membership or
activities is coercive and a violation per se of both the original Act and the
amended Act. Wayncline, Inc., 81 NLRB 511; Minnesota Mining & Manufactur-
ing Company, 81 NLRB 557. Thus Farriss' question to Cain, "Have you signed
one of them little cards . . .?", his question to Glazier as to whether she
had joined the Union, and McVay's question to Musgrove as to whether she had
signed a union card and attended the union meeting I find to have been violations
of Section 8 (1) of the Act. In the same category and also found to be a viola-
tion of Section 8 (1) of the Act is Farriss' question to Cain regarding the signing
of the union card that "if it is to do over, would you sign another?"
The questions by Respondent regarding the "troubles" the employees were
having, while not showing on their face any topical connection with the Union,
I find, nevertheless, to be in the same class in this instance as direct interroga-
tion about union activity. There is nothing in the record indicating any concept
of "trouble" on the part of the employees except events grounded in the Union
and the concerted activities of the employees. The dissatisfaction with the rate
3 Both Musgrove and Baldwin were members of the employees' committee which
petitioned the Respondent to reopen the plant on the terms Respondent had originally
offered.
JASPER NATIONAL MATTRESS COMPANY 89,
of pay, the demand for reinstatement of the discharged employees, the request
for recognition and bargaining may or may not have been looked upon as
"troubles" by Respondent but they were the only possible things Respondent
could have been referring to as "troubles" and in the minds of the employees they
were synonymous with their union activities. Under the circumstances herein
I find that Respondent's questioning of its employees about the "troubles" they
were having in effect was interrogation of its employees about their union ac-
tivities, was so understood by the employees and violated Section 8 (1) of
the Act.
• McVay's remarks that Respondent's "hands would be tied" and it "couldn't
do anything" if the employees joined the Union and that the Union would tie
Respondent's hands; that Respondent "could do more" for the employees "with-
out the union than with it" coming as they did in official interviews between the
employees and management in which the plans for the future were being dis-
cussed and at a time when Respondent had indicated its intention of increasing
wages amounted at once to a veiled threat of reprisal for joining the Union and
an implied promise of benefit if the employees repudiated the Union and thus
interfered with the rights guaranteed the employees in the Act. Cf. Beatrice
Foods Company, 84 NLRB 512.
McVay's remark to Cain (and Farriss' in the same vein) that if they did not
have a union the employees would "have better pay down here in the South
than any other textile workers that was around here" is an obvious promise of
benefit coercive of and interfering with the employees' free choice of its bargaining
representative.
The above remarks, interfering as they do with the rights of the employees
guaranteed under the Act and not being privileged by Respondent's right of
freedom of speech, I find to have been in violation of Section 8 (1) of the Act.
C. The discriminatory discharges
1. General aspects
As previously stated, on July 19, 2 days after the organizational meeting of
the Union at the Courthouse, the Respondent discharged seven employees who
had joined the Union. While lack of work, lack of aptitude, or dissatisfaction
with the quality or quantity of the employees' work was advanced at the hearing
as a reason or reasons for the terminations, it appears that Respondent's main
defense was a shortage of available work causing a general over-manned condi-
tion in all departments beyond the Tick Room. Respondent also contends that
it was unaware of the employees' union activity when these discharges occurred.
Before examining the individual discharges it may be helpful first to analyze
Respondent's main contentions.
The sewing of the mattress tick or cover is one of the first steps in the pro-
duction of the mattress. Most other operations such as the filling, tufting, and
rolling the mattress edge are necessarily performed only after the tick has been
made. It was Respondent's contention that as of July 19, 1946, it was faced with
a shortage of ticking material, particularly the better grade ticking, which limited
its production of ticks to such an extent that it was necessary to curtail the
number of employees involved in operations beyond the ticking room. Support-
ing the over-manned contention, Respondent also took the position that since
this was a new plant and most of the help inexperienced, they had hired two
people for substantially every job with the intention of keeping the ones that
turned out to be. best suited for the work. Also, as part of the over-manned
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
theory was the contention that several people had been employed to renovate
the plant and handle the cotton stored in the warehouse when Respondent took
it over, and that as the cotton was gradually moved out and the renovation com-
pleted it left Respondent with a steadily increasing labor supply.
That there was a general shortage of ticking in 1946 seems quite probable.
Local merchants called by Respondent testified that in the summer of 1946,
Respondent had sought to purchase ticking from them. One such purchase was
made. However, the material supplied by the local merchant was used to make
mattresses for that merchant, presumably ahead of existing orders in the hands
of Respondent from other sources. Moreover, the request to the merchant for
ticking by Respondent was made in answer to the merchant's request that Re-
spondent sell him mattresses. There is no question that generally speaking for
a period after World War II including the time pertinent herein, there were
shortages of practically all types.of materials and consumer's goods. The testi-
mony of the local merchants confirms this, and lends some support to the prob-
ability of a general shortage of ticking. But this is far from conclusive as to
the condition of Respondent with respect to its own supply of ticking and there
is no reason why Respondent could not have taken advantage of what extra
material it could get from sources out of the ordinary, even though it was not
so short of materials as to require it to decrease its labor force.
Detracting from Respondent's contention of being over-manned is the fact
that in the latter part of June or the first part of July, some 2 to 3 weeks prior
to the terminations in question, one of Respondent's officials from Huntington,
Baron B. Mays, who had authority over Elkins, arrived in Jasper for the pur-
pose of assisting in increasing the plant's production. To this end, he instructed
Elkins to put on considerable additional help. Elkins testified that Mays was
at that time manager of the Pittsburgh plant, formerly had been production
manager for National Mattress Company, and was considered highly capable in
the mattress business. Elkins testified that he was compelled to follow Mays'
orders to increase the staff, but that he did so against his own better judgment.
Whatever merit there might be in Elkins' opinion, it seems unlikely on the facts
herein that it was grounded on the premise of shortage of materials. In his
testimony, Elkins continually referred to the difficulties he encountered in his
brief span as manager of the Jasper plant, at one point stating that "the whole
plant was a headache." As for Mays, a man of his experience and reputation
would hardly have made such a fundamental mistake as increasing plant per-
sonnel to increase production when such action obviously would be negatived
by a lack of materials.
Significant in connection with Mays' order is Respondent's contention that
both by virtue of its hiring more than one individual for each job and because
of the excess help required for the handling of the warehoused cotton, it was
over-manned. It would seem that if additional help were needed at the time
Mays ordered the force augmented, such help could have been and should have
been available for transfer from the above sources. The apparent inconsistency
of Respondent's position raises doubt as to the Respondent's good faith in the
arguments it relies on. This doubt is enhanced by additional factors.
A few days before the terminations of July 19, the World War II veterans then
employed by Respondent were requested to attend a meeting at which a repre-
sentative of the Veterans Administration and Elkins were present' The latter
' It was never definitely established when the veterans training program meeting took
place, but by the weight of the uncontradicted testimony , I find it to have occurred no
more than 2 or 3 clays before the discharges in question . The record does not reveal how
JASPER NATIONAL MATTRESS COMPANY 91
informed the former that it was Respondent's intention to establish a Veterans
On-the-job Training Program, and requested all veterans present to sign up for
the training. There is substantial credible testimony, undenied by Elkins, that
he informed the Veterans Administration representative that Respondent had
plenty of raw materials to keep the plant in full operation, and that Respondent
intended to inaugurate and proceed with the on-the-job training program
forthwith.
° Respondent also contends that the production and order backlog figures for
the July 13, 20 and 27 payroll periods support its over-manned theory. I
disagree. In a new plant with inexperienced help, or even in an established
plant, there are too many variables affecting production to permit the conclusion
contended for by Respondent on the meager evidence herein. For proof of
this, one has merely to compare the figures of the August 3 payroll with July 27
payroll.
Before leaving the general aspects of this matter the termination letters merit
a brief comment.
All the employees discharged on July 19 were given formal letters of termina-
tion, some of which indicated positions with respect thereto at the time by
Respondent different from positions taken at the hearing.' Apart from this,
however, the letter incident itself would seem to be an unusual procedure for
a small plant as newly started and beset with problems as was Respondent's.
Moreover, while Respondent in terminating Watts saw fit to give her one of
these letters of explanation, formally typed on the company letterhead and
signed by the plant manager, no such procedure was followed in terminating
Banks from an identical job the week previous.' The question arises, Did the
discharges of July 19 involve special treatment by Respondent? And if so, why?
Finally, there is inconsistency in the testimony as to whether a shortage of
materials and consequent over-manning was the basic cause of the terminations.
Elkins, called by the General Counsel under Rule 43 (b) of the Rules of Civil
Procedure for the District Courts of the United States, testified unequivocably
that Respondent had plenty of materials for full operation, and that these
materials were sufficient to have gotten out additional production if he had
had the personnel with which to get that production out. Then on cross-examina-
tion by Respondent and when called as Respondent's witness, he changed his
testimony maintaining that a shortage of materials, particularly ticking, played
a most important part in the alleged over-married condition of the plant neces-
sitating the terminations of July 19. In view of the foregoing factors, and by
reason of the manner in which Elkins was called as the General Counsel's
witness, the undersigned believes and finds that the testimony elicited from him
by General Counsel's questioning on this matter more accurately reflects the
facts. Accordingly, the undersigned rejects Respondent's contention that a
shortage of materials sufficient to affect the work load of the employees existed
in Respondent's plant at Jasper, Alabama, shortly before or on July 19, 194th,
many attended this meeting but at least seven were named by various witnesses among
whom I find were Fox, Nelson, and McGuff.
'Thus the letters to Walker, Nelson, and Fox, admitted in evidence as the General
Counsel's exhibits, implied that the terminations were only temporary. At the hearing
Elkins testified that they were meant to be permanent and that there was no intention
of taking any of them back.
The testimony about the time of Banks' termination is not clear. However, since
she appears on the July 6 and not on the July 20 payroll, she must have been terminated
during the July 13 payroll, the payroll before Watts was discharged. I so find.
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or that at that time Respondent was in fact over-manned. Supporting this
finding is the following credited testimony :
Q. (By McVay.) That you-in view of the fact you didn't have any ex-
perienced workers you tried to hold on to them the best you could with the
hope you would get out some production?
A. (By Elkins.) Yes, sir.
Q. (By Mr. Wise on cross-examination.) You were always short-handed,
in the sewing room, weren't you?
A. (By Streety.) We were short-handed on everything. Some time we
would have to let one part off in order to catch up with another place.
Always one of the other departments had to wait on ticking.
2. Respondent's knowledge of employees' union activity
No direct evidence was offered by the General Counsel to show that as of July
19, when the terminations were effected, the Respondent had knowledge of the
union activity of its employees. Respondent consistently denied any such
knowledge. In fact so consistent was this denial that Elkins, who, unlike other
witnesses, was permitted to listen to the entire testimony and thus was in
position to have his recollection refreshed about incidents involving the Union
and himself, incredibly testified that he did not recall discussing the Union with
anyone during his entire time at the plant.
Although there was no direct evidence bearing on this point, there was enough
credible testimony to strongly support on inference that Respondent was aware
of the employees' union activity at the time the discharges were made. Thus,
it was testified by Pearce Baldwin that. the union organization was a topic of
general discussion in the plant prior to the meeting of July 17. Walker testified
that on the day after the organizational meeting he asked Ray Strickland (the
name actually being Stickler) Elkins' brother-in-law, to join the Union. Stickler
refused and about an hour later was seen by Walker going into Elkins' office.
Hoover Smith saw Hanneman drive around the Courthouse square in his car just
prior to the union meeting of July 17. Fox saw Elkins and several of the "hands
from the north" standing outside the Courthouse when the employees came out
from their meeting of July 17. While these incidents are by no means of suffi-
cient importance to base a finding of surveillance of the employees' union ac-
tivities by Respondent they do, nevertheless, give rise to the probability that
such activities were known to Respondent. This would be all the more probable
in view of the small size and nature of Respondent's operations in Jasper, the
size of the community involved and the interest of that community in the opera-
tions in question. Pursuant to the foregoing and in accordance with well-
established law I find that Respondent was well aware of its employees' union
activities at the time it effectuated the terminations of July 19. See N. L. R. B.
v. Abbott Worsted Mills, 127 F. 2d 43S, 440 (C. A. 1) enf'g 36 NLRB 545; Brezner
Tanning Company, Inc., 50 NLRB 894; Quest-Shon Mark Brassiere Company,
Inc., 80 NLRB 1149.
3. The individual discharges
(a) John L. McGuff
McGuff had worked for Respondent about 5 months at the time he was ter-
minated, having been one of those hired to help prepare the plant for operations.
For a time he operated one of the two picker machines being operated in the
plant's production ; then he was transferred to a garnett machine as helper
JASPER NATIONAL MATTRESS COMPANY 93
to Okie Gibson , one of the experienced employees from Huntington . McGuff
had had no complaints about his work and no intimation of an impending lay-
off.' The reason assigned by Respondent for McGuff 's termination was lack of
work. When the plant reopened after the strike he was taken back to work
by Respondent , remained for a short while , then quit.
(b) Austin Smith
Austin Smith was hired by Respondent as a. laborer on or about July 10 and
was terminated on July 19. He testified that Elkins told him the job would
be "regular." Elkins testified that he had no intention that Smith's job was to
be temporary when he hired him. At one point in Elkins' testimony he stated
he didn't know why he let Smith go; at another place he assigned the single
term "inability" as a reason for his termination. Nowhere in the record is
there any incident regarding Smith's ability or inability to perform the duties
assigned to him. By the foregoing and by the nature of Smith's cross-examina-
tion it is apparent that his termination is meant to be covered by Respondent's
over-manned theory. Smith testified he was kept busy all during his employment
by Respondent.
(c) William E. Nelson
Nelson was hired by Elkins some 6 or 7 weeks prior to his termination on
July 19. He was told the work would be permanent. His first duties were
to assist in moving the warehoused cotton but later worked from time to time.
on the wrapping machine and in the inner spring department. When the plant
reopened after the strike he was recalled to work by Respondent and worked
as a helper on a picker machine for about 2 months and quit. There was no
warning to Nelson of an impending layoff and he had no complaints about his
work. Like McGuff and Austin Smith, the sole reason given by Respondent
for his termination is lack of work.
(d) James C. Fox
The record is not clear as to when Fox was hired by Respondent but the pay-
roll records revealed that it was sometime after June 22, 1946. He was assigned
to the shipping department and also helped move cotton from time to time.
Fox's discharge falls within the Respondent's over-manned theory.
The Respondent's shortage of materials and consequent over-manning theory
having failed of proof, it follows that the reason assigned by Respondent for the
terminations of the four above employees also fails. Apart from the significance
of Elkins' admission in connection with the veterans' on-the-job training program
incident, it has a separate bearing on the terminations of Fox, Nelson, and
McGuff. Assuming arguendo that Respondent was actually over-manned as it
contends and intended to cut its staff, it would seem unlikely that it would have
announced an on-the-job veterans' training program and requested a large num-
ber of those it intended to lay off to sign up for that program just a day or two
prior to the time the layoffs were put into effect.
In view of the foregoing the undersigned rejects the reason given by Respond-
ent for the terminations of Fox, Nelson, Austin Smith, and McGuff and finds
r 2%IcGuff's denials of having received any complaints about his work or warnings of
discharge (and similar testimony by other July 19 disehargees) were unconvincingly and
somewhat inconsistently contradicted. by Elkins. . Elkins, testimony in, this respect is
not credited.
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that those employees were discharged by Respondent on July 19 because of their
union activity.
(e) Delma Watts
Delma Watts was employed by Respondent on July 2 to sew mattress ticks on
a power sewing machine with full knowledge of her lack of experience. On
July 19 she was given a formal letter of termination on Respondent's letterhead
stating that "due to lack of aptitude, we find it necessary to terminate your
services."
Streety testified that he "had a lot of trouble with Watts about teaching
her how to sew;" that she was lacking in aptitude and ability; that due to
the weight and awkwardness of the ticks she was unable to properly manipulate
the cloth with the result that she was unable to get her seams straight. For
these reasons, Streety testified, he had to have a great deal of her work resewn.
On the other hand, Elkins testified that while Streety complained about Watts,
his complaints were not confined to Watts but were directed to the entire tick
room personnel. Elkins further testified that Respondent did not have a single
sewing machine operator who could produce 50 percent of what it considered
normal production. In spite of this it was Streety's testimony that the kind
of work being done could get by on cheap mattresses although it would not
have been good enough for the more expensive mattresses. Streety also testified
that a great deal of Watts' work, although not entirely satisfactory, was accepted
because it was so badly needed. Elkinofurther testified that it was Respond-
ent's intention to fill Watt's position with one of the two cutters then on the
payroll. Although the plant did not close until some 6 weeks after Watts'
discharge neither cutter was made a sewer during that time.
Musgrove, who was employed as a cutter in the tick room while Watts was
employed, testified it was her job to see that the work in the tick room was done
right. To this end Davidson, after initial inspection, would ask Musgrove's
opinion on questionable work. The latter, if she thought it necessary, would
check the matter with Streety. It was Musgrove's testimony that Watts' work
was better than that of Grimes and Banks and on a par with that of the other
sewers. Musgrove also testified that Watts was a "good sewer" and that she
never heard anyone "get after" her about how she did her work.
Watts, who did not appear before the undersigned and whose testimony was
taken by deposition, testified that she had no complaints about the quality or
quantity of her work and that while she did not know if any of her work had
to be redone, no work was ever returned to her to be done over. She also
testified that when the plant reopened in December, Musgrove asked her to
come back to work which she did, working there continuously until October 1947
when she left the Company's employment voluntarily. During her employment
from December 1946 to October 1947 the Respondent operated under a "point"
or "quota" system. Watts testified she never had trouble making her quota
and usually ran better production points than the other sewers. Glazier testified
that when she went back to work in December Watts was already back on the
job; that she worked right beside Watts at that time and that Watts turned
out as much or more work than any of the others. Respondent offered no
evidence as to Watts' work after the plant reopened. Prior to her discharge
Watts had induced three of the other sewers to sign union cards.
It may well be that Streety's first impression of Watts was that she did
not have the aptitude for the job. If so, that he was wrong is apparent from
the undenied and credited testimony about her work when the plant reopened.
JASPER NATIONAL MATTRESS COMPANY 95
Whatever Streety's opinion was about Watts' work at the time of her discharge,
I am convinced it played no part in that discharge. The foregoing testimony,
among other things, clearly establishes that Watts' work at the time she was
discharged was as good if not better than that of most of the other sewers.
Because of this, and in view of the admitted high rate of turn-over in the tick
room, the Respondent's admitted shorthandedness, the alleged need for all the
production that could be gotten out of the tick room, the reasons advanced by
Respondent for Watts' discharge are not credited. Accordingly, as the only
possible alternative, I find that Watts was discharged on July 19, 1946, by
Respondent because of her union activity.
(f) L. B. Walker
Walker was one of the first of the employees hired to get the plant ready for
production, his name appearing on Respondent's first payroll in February. He
started as a laborer at 55 cents an hour, helping unload, assemble, and set the
machinery. Within a few weeks he was raised to 65 cents an hour and being
familiar with carpentry ultimately was assigned as assistant to a carpenter
doing the necessary carpentry work of the new plant. When the carpenter he
was assisting quit, he was offered the carpenter's job but objected to the differ-
ential between his rate and the carpenter's rate of $1 an hour. Respondent
thereupon offered him 75 cents an hour and he took over the carpentry work at
that rate. Sometime after production started Walker worked for about 2 weeks
in the box spring department. As to why he left the box spring work and what
followed is in dispute between the General Counsel and the Respondent. Walker
testified that the machine fixer and general upkeep man, Lozier, quit and for
that reason Elkins took him off box springs and put him in Lozier's job; that he
finished various tasks started by Lozier and that just before he was discharged
Elkins had informed him of a supply room Respondent wanted made out of certain
available space saying that Walker was to work on it when he was not occupied
by other tasks.
Elkins testified that the reason Walker was taken off box springs was that
Walker, contrary to the usual practice, was unable or unwilling to hold tacks in
his mouth for the purpose of thus applying them to a magnetic hammer so as to
attain greater speed and efficiency in the tacking process ; that because of this
deficiency Walker was doomed to failure as a box spring man; that in any event,
Walker was no longer needed on box springs due to the fact that Respondent
had been able to get an experienced box spring man, one Blankenship, to replace
him ; that after Blankenship eliminated any need for Walker in box springs and
there being no other possible place for Walker in the plant Respondent attempted
to find odd jobs for him and kept him on the payroll for an additional period of
2 or 3 weeks. It was Elkins' further testimony that normally there was no need
for a maintenance man in a mattress plant the size of Respondent's Jasper
plant.
Walker, like the rest of those discharged on July 19, was given a formal letter
stating as the reason for his discharge the scarcity of raw materials and the
resulting over-manned condition of the plant. At the hearing Respondent for
the first time gave as an additional reason for Walker's discharge the quality and
quantity of his work. Elkins referred to Walker as a Jack-leg carpenter-a term
of no praise. But aside from a possible inference in connection with Walker's
alleged defect as a box spring man, Respondent's proof as to the quality or quan-
tity of Walker's work is entirely lacking.
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Even in the absence of my excellent impression of Walker as a witness and
the complete plausibility of his testimony, I doubt if I should be able to credit
Respondent's contention in the above conflict because Blankenship, whose advent
supposedly eliminated any need of Walker as a box spring man thus relegating
him to "odd jobs," actually was not in Respondent's employment when Walker
was taken off box springs. Blankenship does not appear on the payroll for the
week ending July 6, while Walker appears on that payroll under the heading
"Maintenance" and is the only one appearing in that classification. There is no
indication when Blankenship actually started working for Respondent because
while his name appears on the July 20 payroll, the July 1.3 payroll was not
offered in evidence. Likewise there is no indication when Walker actually
started as maintenance man since no payrolls prior to July 6 were offered in
evidence. Thus, it appears that there is at least 1 week's space between Walker's
"displacement" from box springs by Blankenship and the latter's employment
thereon. This unusual circumstance in the face of Respondent's contention,
even if explained, would still leave another loose end to dispose of-namely, why,
if Respondent was over-manned as it contends, did it not discharge Walker when
he was taken off box springs instead of trying "to find little odd jobs to keep him
busy" as Elkins testified was done. Another apparent divergency between Re-
spondent's position at the hearing and the facts involves Elkins' testimony that
normally a maintenance man would not be needed in a plant the size of the
Jasper plant; that while one had been needed at first, impliedly there no longer
was such need at the time Walker was let out. Yet, in the collective bargaining
agreement between Respondent and Local Union 435, Upholsterers International
Union of Jasper, Alabama, A. F. of L., in effect as of November 5, 1947, almost a
year and a half after Walker's discharge the classification of Gen. Maintenance
is found heading the list of job classifications.
By reason of the foregoing substantial evidence the undersigned finds that
Walker was discharged by Respondent on July 19 because of his union activity.
(g) James H. (Hoover) Smith
Smith was employed by Respondent about the middle of May specifically for
the shipping department. At the time of his discharge on July 19 he was in
charge of the shipping department aided by Fox and G. C. Swindle, the latter
having been in the shipping department when Smith was hired.
Respondent contended that Smith was released because of a general lack of
qualifications and because of inaptitude for his work. This was bolstered by
the contention that the shipping department was also overmanned. Although
Elkins testified that when Smith was there he continually had to go to the ship-
ping department to straighten out messes and help ship out orders, no specific
incidents were adverted to. On the other hand, it appears from Elkins' tes-
timony that he would or did help the shipping department at any time ship-
ments were to be made regardless who was in charge. Thus in answer
to Respondent's direct examination about shipments the week after Smith was
dismissed and Swindle placed in charge of the shipping department with Wal-
drop under him Elkins testified: "Yes, sir, if we would have loaded a car on
that week, I might state, I would have helped them and maybe used another
man to help load a car."
That Elkins would make such an admission in view of Respondent's conten-
tion regarding Smith's discharge is quite surprising when it is remembered that
Swindle was in the shipping department when Smith was hired and presumably
had as much, if not more, experience than Smith in the duties of that depart-
JASPER NATIONAL MATTRESS COMPANY 97
ment, and that Swindle had been characterized in Elkins' testimony as show-
ing better judgment and having better aptitude for the job than Smith.
The significance of Elkins' testimony is twofold. First, it raises a question
as to how much Elkins' presence in the shipping department was really due to
"messes" of Smith's responsibility and how much was due to the normal practice
of Elkins to check and assist in the important function of shipping out the
plant's production. Second, it weakens Respondent's position that the ship-
ping department was overmanned.
In not crediting Respondent's contentions as to Smith's discharge, I do not
rely on Smith's denial that he ever had any complaint about his work. I do,
however, rely on the foregoing analysis in part, on the general failure of Re-
spondent's over-manned theory in part, and in part on an admission by Elkins
in response to a question by the General Counsel. Asked by the General Counsel
why Respondent, if Smith was as unsatisfactory in his work as Respondent
alleged, waited from the middle of May to the 19th of July to discharge him,
Elkins sat mute on the witness stand and finally admitted he was unable to
answer the question. Based on the foregoing substantial evidence, I find that,
like the above employees, James H. (Hoover) Smith was discharged on July 19
because of his union activity.
(h) Arlen Jacks
The General Counsel has alleged that Jacks, who started to work for Re-
spondent in April and was discharged August 2, was discharged because of his
union activity. Jacks apparently was quite active in the union organization
campaign, among other things having signed two into the Union and having
asked several of the experienced hands from Huntington to join. Two or three
days before he was discharged, Jacks handed out union literature at the plant
during the morning recess. Respondent contends that Jacks was discharged
because of the damage he caused through the careless operation of machinery,
indifferent work, and an uncooperative attitude.
During his employment before the Respondent began production, Jacks helped
assemble and set the machinery. After production started, he first worked on
a filling machine and at his own request was transferred to a tufting machine
which he continued to operate interchangeably with a roll-edge machine until
he was discharged. The tufting machine was used for sewing or fastening
the tufts at regular intervals through the entire thickness of the cotton-filled
mattress by means of a long, thick needle of comparative value. An operator
of a tufter would normally expect to use from three to four needles a year.
Streety testified that Jacks broke about six of these needles in a period of ap-
proximately 3 weeks on the tufter due largely to carelessness. Jacks admitted
that he may have broken three or four in that time. Streety further testi-
fied that despite instructions not to allow anyone to operate the machine unless
authorized to do so, Jacks, without authority, permitted Walker to operate
the tufter with the result that it was broken, causing a day and a half shut-
down of the machine at considerable expense and inconvenience. When Jacks
was reprimanded at the time of the incident he responded that "he wasn't re-
sponsible for the damn machine or Walker or anybody else."
Streety further testified that Jacks' work was not entirely satisfactory on
the filling machine and that he had trouble spacing his tufts on the tufting ma-
chine. Upon telling Elkins he felt that Jacks couldn't do the work, Elkins had
said, "Well, we will keep him as long as we can, if you find any use for him
at anything else !" On cross-examination Jacks testified that while he was
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARb
instructed as to the care needed in the operation of the tufter and as to the
delicacy of the machine, he did not know whether or not he had been told he
was responsible for the operation of the machine or that he was told not to
let any one else operate it without instructions to do so. He denied he let any-
one operate the machine contrary to instructions. It is apparent from the
cross-examination on this incident that Jacks' position is not to be credited;
accordingly I credit Streety's version.
McVay, in his visit at the inauguration of the wage increase and job evalu-
ation plan, talked to Jacks about his work and gave him a word of encourage-
ment. At that time Jacks was given 71/> cents an hour increase but was not
brut in a classified position. That Jacks was dissatisfied with his increase is
Clear and was to be expected since it was considerably less than some had re-
ceived who had less seniority than Jacks.
In this connection Jacks testified that he wanted to talk to McVay about the
amount of his raise as compared to some of the others and told Elkins so ; that
the latter informed him that McVay was leaving that afternoon but that he
would take the matter up with McVay since he was accompanying him to,
Birmingham; that Elkins informed Jacks the next morning that McVay did not
like Jacks and it looked like he'd have to let Jacks go, which he did at that time.
Elkins' testimony was that Jacks came to the office and wanted an explana-
tion as to why he had not been given as much of a raise as some of the others ;
that Elkins attempted to explain the job evaluation plan but Jacks didn't seem
to grasp it; that Jacks was angry when he came in and stated he felt he was
being treated unfairly, threatening to get even; that Elkins told Jacks. Elkins
was there to build up a factory but apparently Jacks' attitude was to tear it
(town; that such being the case they had better part company and that Jacks
was discharged then and there. While neither Elkins' nor Jacks' testimony im-
pressed me as unassailable, in this matter I am inclined to credit Elkins'.
Although the result is not clear-cut as might be desired, the undersigned is of
the opinion that the General Counsel has not sustained the burden of proof with
respect to Jacks' discharge. While it is true that just a day or two before he
was fired, Jacks was given a raise, it must be remembered that all employees
were raised at that. time and that Jacks' raise was one of the smallest given.
True, Jacks was not discharged after the machine-breaking incident or at the
times he caused other damage and that even when told by Streety that Jacks.
Could not fit into the organization, Elkins' order was to keep him on as long as
possible if they could find anything at all he could do. Having discredited
Respondent's overmanned theory it follows that in spite of what shortcomings
Jacks may have had it could be assumed that Respondent intended to keep him
on the payroll in the hopes that the shortcomings might be overcome. Then
there was McVay's discussion with Jacks in which, Jacks admits, McVay tried
to "encourage" him. This encouragement could very well have been that kind
of fatherly appeal or man-to-man advice to Jacks that if he would revise his
approach his future and success with the Respondent would be assured. That
McVay may have taken a dislike to Jacks on the basis of this interview and
Jacks' record and concluded that he was unworthy of any more consideration
on the part of Respondent is entirely possible. Thus, it may have been that
when Jacks came to Elkins the day of the discharge the latter, although having
no intention of discharging Jacks, nevertheless was prepared to keep a close
rein on him on the basis of McVay's attitude toward him. Jacks' testimony
that when he was fired Elkins did not have his check ready but had Hanneman
make out a check for his time is congruous with the foregoing. It is the under-
JASPER NATIONAL MATTRESS COMPANY 99
signed 's recommendation, therefore, that the complaint be dismissed with respect
to the allegations pertaining to the discharge of Arlen Jacks.'
D. Refusal to bargculn
1. The appropriate unit
The complaint alleges that all employees at the Respondent's Jasper, Alabama,
plant excluding executives, clerical employees, guards, professional employees
and supervisors as defined in the amended Act constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9 (b) of the
Act and, as reenacted, the same section of the amended Act. In its answer
Respondent denied the above allegation but at the hearing agreed to it by
stipulation. The undersigned finds that the above-described unit at all times
herein constituted and now constitutes a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act and, as
reenacted, the same numbered section of the amended Act. Cf. Goo. Eranas
Bedding Com pany, 68 NLRB 164.
2. Representation by the Union of a majority in the appropriate unit
On Respondent's payroll for the week ending July 20, 1946, there were 29
employees in the above unit. As of July 19, the date on which the Union mailed
the request for recognition and bargaining rights, 23 of these employees had
signed cards designating the Union as their bargaining representative! Eighteen
of the cards were signed at the organizational meeting of July 17 and 5 the follow-
ing day. Included with the above 23 union members are the 7 employees hereto-
fore found by the undersigned to have been discriminatorily discharged on July
19 but who appear on the July 20 payroll. Assuming that these discharges had
not been in violation of the Act, it still appears that as of the July 27 payroll
(the payroll week during which Respondent received the Union's request to
bargain) there were 22, employees in the unit, 16 of whom were union members.
Thus, it clearly appears and the undersigned finds that at the time the Union
made its request for recognition and bargaining it represented a majority of
Respondent's employees in an appropriate unit and was the duly authorized
bargaining representative of those employees.
3. The refusal to bargain
On July 19 Haigler, the Union's State director, wrote a letter to Respondent
directed to Elkins informing him that a majority of Respondent's employees had
designated the Union as their collective bargaining agent and requested a meet-
ing with Respondent for formal recognition at an early date. The letter was
received by Elkins on July 22 and forwarded to McVay at Huntington, which
fact was disclosed to Haigler by a letter from Elkins dated July 22. A copy of
"In resolving this issue, the undersigned is mindful of the Unemployment. Compensation
separation certificate given Jacks showing the reason of termination as being "no work
available."
This finding is based on signed authorization cards received in evidence over the objec-
tions of Respondent as to all but one of them. It appears that S. W. Cain signed two
authorization cards, one on July 17 and one on July 18, both of which were admitted in
evidence . In these findings only one of Cain's cards is computed and considered by the
undersigned. Respondent's objection to the admission of General Counsel's Exhibits 3Z
and 3AA, being authorization cards signed by Imogene Smith and Rachel Williams. re-
spectively, and identified by watts in her deposition, is hereby overruled and the exhibits
admitted in evidence.
889227-51-vol. 89-8
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this letter was also sent to McVay. On the same day Haigler and Elkins had a
telephone conversation in which Haigler brought up the subject of the July 19
discharges and asked for a conference. Elkins informed Haigler he was without
authority to act in the matter but that the personnel director of Respondent
would be in Jasper within a few days and would no doubt contact him. This
was the last contact the Union had with Respondent until the first week in
September, when a strike was in progress and a union committee met with
officials of Respondent and of the Jasper Chamber of Commerce in the office of
the Chamber of Commerce.
In the meantime the Union's petition for certification was docketed with the
Board on July 23. Thereafter, the July 29 visit of McVay and Farriss took place
during the course of which the employees were assembled during working hours
and formally addressed by the two officials. Apparently it was a typical em-
ployer-employee pep talk. Respondent's plans and employees' job opportunities
were discussed, a job evaluation and incentive plan of mutual advantage was
announced as was an increase in the basic wage rate, effective the following pay
period, ranging from 21/.,, cents to 20 cents an hour. McVay informed the em-
ployees at this time that he "realized the company wasn't paying enough money."
The General Counsel contends that this increase in wages was for the purpose
of influencing Respondent's employees in the selection of their bargaining repre-
sentative. Although there is a great deal of testimony in the record to the
effect that the job evaluation and incentive plan was decided upon by Respond-
ent and contemplated long before the advent of the Union at Jasper, and although
Respondent stoutly denies that the job evaluation and incentive plan was inaugu-
rated for the purpose of influencing its employees in their choice of a bargaining
representative, there is nothing at all in the record explaining why Respondent
saw fit to increase the basic wage rate at the time it did. It is conceded that
a scientific evaluation of Respondent's production classifications might well have
resulted in varying rate increases from a common base rate depending on the
evaluating factors used and the objective sought. This, however, affords no
explanation for the increase in the basic rate itself or for Respondent's admis-
sion to its employees that they were being under paid.
No reason having been offered by Respondent for the wage increase it granted
unilaterally to its employees within approximately a week 10 of being notified that
the Union represented a majority of its employees for the purposes of collective
bargaining "in matters pertaining to wages, hours and working conditions," and
no attempt having been made by Respondent to comply with the Union's request
for a conference, and in view of Respondent's previous acts of interference,
restraint, and coercion as found herein, I am convinced and find that the granting
of the wage increase in question was part of Respondent's program of opposition
to the Union and was intended to influence its employees' choice of its bargaining
representative. As alleged in the complaint, I find that such conduct on the
part of Respondent interfered with, restrained, and coerced its employees in
the exercise of rights guaranteed in Section 7 of the Act and thereby violated
Section 8 (1) of the Act. See A. J. Showalter Company, 64 NLRB 573; Georgia
Ttai.ne & Cordage Company, 76 NLRB 84; J. B. Cook Auto Machine Co., Inc., 84
NLRB 688.
On August 19, after the wage increase was granted, the Union filed with the
Board the first of several charges against Respondent alleging violation of
10 In weighing the timing between the request for bargaining and the wage increase, it
must be remembered that all authority was vested in people located in Huntington, West
Virginia, whose duties involved plants other than Jasper.
JASPER NATIONAL MATTRESS COMPANY 101
Section 8 (3) and (5) of the Act. On August 30 the strike occurred. Then, for
the first time from the request for recognition of July 19, the Respondent
attempted to get in touch with the Union. As indicated, a meeting took place be-
tween the Union and the Respondent at the office of the Chamber of Commerce
shortly after the strike started. The Union demanded recognition, bargaining,
and reinstatement of the dischargees of July 1.9 plus the one of August 2. The
Respondent refused to reinstate the dischargees but requested the employees to
return to work and let the Board settle the question of representation. Respond-
ent's refusal to recognize the Union apparently was based on the assumption that
the Union's petition for certification then pending did not permit or did not
require Respondent to recognize and bargain with the Union.
It is well established that an employer is entitled in good faith to have his
doubt as to the majority of a union seeking his recognition resolved by a Board
conducted election. Roanoke Public Warehouse, 72 NLRB 1281; Chamberlain
Corp., 75 NLRB 1188; D. H. Holmes Company, Ltd., 81 NLRB 753; Arteraft
Hosiery Company, 78 NLRB 333. However, as stated by the Board in the latter
case, "an employer unlawfully refuses to bargain if its insistence on such an
election is motivated, not by any bona fide doubt as to the Union's majority, but
rather by a rejection of the collective bargaining principle or by a desire to gain
time within which to undermine the Union. The crucial issue in these cases is
the Employer's motive at the time of the refusal to bargain. Whether in a
particular case an employer is acting in good faith is, of course, a question which
of necessity must be determined in the light of all relevant facts in the case.
Among the factors pertinent to a determination of the Employer's motive at the
time of the refusal to bargain are any unlawful conduct of. Employer, the sequence
of events, and the lapse of time between the refusal and the unlawful conduct."
In the case at bar the respondent, after being requested to recognize the Union's
selection as bargaining agent of its employees, reacted almost immediately with
a unilateral wage increase to these employees and deliberately avoided any con-
tact whatsoever with the Union until a strike occurred. Then Respondent eag-
erly sought out the Union, not to recognize it but to avoid the importunities of
the strike. Then, for the first time the Union was apprised of the Respondent's
position that it was insisting on a Board election. There was no indication by
Respondent then that it questioned the Union's majority nor does the record
reveal any such contention by Respondent. These facts, measured by the stand-
ards in the Artcraft Hosiery case, supra, and by the substantial evidence on
the record considered as a whole, convince the undersigned that Respondent's
insistence on a Board-conducted election was not motivated by a good faith
doubt of the Union's majority but "rather "by a desire to gain time within which
to undermine the Union."
If Respondent's true motive was not obvious by the course of events up to
and including the strike conference with the Union at the chamber of commerce,
the events subsequent to that meeting should dispel all doubt.
After the strike ended in the first.part of September, the plant remained' closed
in spite of a jointly signed statement by the chamber of commerce and a com-
mittee of the employees to Respondent indicating a willingness on the part of
the employees to return to work under the conditions existing at the time the
strike occurred-i. e., without recognition of the Union and without reinstatement
of the discharged employees. On September 9 the AFL filed a petition for
certification of representatives. On September 1S the Union was permitted by
the Regional Director of the Board to withdraw its petition for certification
without prejudice. About this time word began getting to. the employees through
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
various sources, including one Albert Ilarrentine, an AFL official who had na
connection with Respondent, to the effect that a meeting was to be held for
the purpose of forming an AFL union and that if the employees wanted to go back
to work they should join the AFL; that the Respondent would not operate under
the CIO." A meeting eventually took place and Local 435, Upholsterers Interna-
tional Union of North America, AFL, was organized. On October 19 a collective
bargaining agreement was entered into by Respondent and the AFL on the basis
of negotiations conducted by mail between Jasper, Alabama, and Huntington,
West Virginia. At the time the contract was negotiated the AFL's petition for
certification of representatives was pending before the Board as was the Union's
charge of unfair labor practices. Thereafter, whatever the reason may have been,
the plant did not reopen until the first part of December. When it did reopen
at least three of the employees discharged on July 19 were rehired and others
probably were offered reinstatement.'
The predilection of Respondent for the AFL is so obvious it needs no com-
ment and when added to Respondent's other conduct, obviates any vestige of
justification for Respondent's attitude toward the Union.
In view of the foregoing and the record as a whole, the undersigned finds that
Respondent was not acting in good faith when it disclosed its purpose to the
Union of insisting on a Board election to determine the employees' bargaining
representative and that from the Union's first request to Respondent for recog-
nition received by Respondent on July 22 to the present time Respondent has
deliberately refused to bargain with the Union in violation of Section S(5) and
(1) of the Act and Section 8 (a) (5) and (1) of the amended Act.
4. Concluding findings
The complaint alleges that Respondent on and after August 1946 assisted the
American Federation of Labor and contributed financial aid and other support to
it, entering into an illegal contract with it on or about October 19 for the ex-
clusive representation of its employees at a time when the question concerning
representation was pending and while Respondent was engaging in unfair labor
practices against the Union.
There is no evidence that Respondent contributed financial aid or other support
to the APL and it is recommended that the complaint be dismissed as to that part
of the allegation. With respect to the alleged assistance of the AFL by Respond-
ent, however, I am of the opinion that the proof clearly supports the allegation.
For the Respondent to enter into a contract with the AFL under the circum-
stances herein at best "constitutes a breach of its obligation of neutrality."
Although the contract was not a closed-shop contract, it did have a preferential
hiring clause which, when viewed in the perspective of the Respondent's opposi-
tion to the Union, had substantially the same effect as a closed-shop contract
in assisting the AFL and in interfering with, restraining, and coercing the em-
ployees in their adherence to the Union and in the exercise of rights guaran-
teed them in the Act and the amended Act.
11 Credible testimony to this effect by several of the General Counsel 's witnesses was
conditionally admitted in the record ; at the end of the hearing ruling was reserved on
Respondent 's motion to strike all testimony involving statements attributed to Barrentine.
While these statements if offered testinionially would be hearsay and thus inadmissible,
offered as they were to show the motive of the employees in joining the AFL, they are
competent evidence and are admitted for that purpose.
"The record is clear only as to Watts, Nelson , and McGuff , whom I find to have been
rehired by Respondent when the plant reopened. No finding is made as to the others.
JASPER NATIONAL MATTRESS COMPANY 103
Respondent offered no evidence as to its dealings with the AFL and there is no
indication in the record whether proof of majority was ever offered by the
AFL or sought by the Respondent. In any event, having had a majority at
the time it requested recognition and Respondent having then and thereafter re-
fused to bargain in violation of Section S (5) of the Act, and Section 8 (a) (5)
of the amended Act, the Union could not have had its majority impaired. Train
City Milk Producers Association, 61 NLRB 69; Toledo Desk and Fixture Company,
75 NLRB 744.
By its conduct in illegally entering into the agreement with the AFL and thus
depriving the Union of the recognition it was legally entitled to by reason of its
majority status, I rind Respondent refused to bargain with the Union in violation
of Section S (5) of the Act and Section 8 (a) (5) of the amended Act.
N. L. R. B. v. National Motor Bearing Contpun.y, 105 F. 2d 652 (C. A. 9) enf'g as
modified 5 NLRB 409. I ntericav-illarsh Pumps, Inc., 62 NLRB 931; Surprise
Candy Company, 66 NLRB 1.
Respondent has maintained that its plant was reopened with the permission
and acquiescence of a Field Examiner of the Board. Exactly what Respondent's
theory is in this respect is not clear. The testimony itself is vague. Nowhere
is there any claim that Respondent was told the unfair labor practice charges
were being dropped. The substance of Respondent's position apparently is that
the Field Examiner was trying to get Respondent to reinstate the alleged dis-
criminatory dischargees and that if such was done it would be "Okay" for
Respondent to reopen its plant. There is nothing in the Act or the amended
Act giving the Board authority over the opening or closing of an employer's
plant. Respondent's testimony proves nothing to the undersigned but the legiti-
mate efforts of the Field Examiner to prevail upon Respondent to comply with
the Act without resort to the sanctions provided therein.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON CO'M'MERCE
The activities of Respondent set forth in Section III, above. occurring ill con-
nection with the operations of Respondent described in Section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices
affecting commerce, it will be recommended that it cease and desist therefrom
and take certain affirmative action which the undersigned finds is required in
order to effectuate the policies of the Act.
The Respondent having discharged the seven employees whose names are listed
in Appendix A of this Intermediate Report because of their union and concerted
activities, it will be recommended that Respondent offer to each of them who
has not already been reinstated or offered reinstatement to an equivalent posi-
tion without loss of seniority and other rights and privileges, immediate and
full reinstatement to their former or substantially equivalent positions,'3 with-
out prejudice to their seniority and other rights and privileges. It will also be
recommended that Respondent make whole for any loss of pay they may have
13 Chase National Bank of the City of New York, San Juan, Puerto Rico Branch, 65
NLRB 827.
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suffered by reason of Respondent's discrimination against them, each of the
employees whose names appear in Appendix A of this Intermediate Report, by
payment to each of them of a sum of money equal to the amount he or she nor-
mally would have earned as wages from the date of the discharge, July 19, 1946,
to the date of Respondent's reinstatement or offer of reinstatement, as the case
niay be, less his or her net earnings during that period."
It having been found that Respondent refused to bargain collectively with
the Union as the exclusive representative of its employees in an appropriate
unit, it will be recommended that, upon request, Respondent bargain collectively
with the Union as the exclusive representative of such employees with respect
to rates of pay, wages, hours, and other terms and conditions of employment.
Having found that the Respondent unlawfully assisted the AFL and dis-
couraged membership in the CIO, by recognizing the AFL and by entering into
the agreement of October 19, 1946, therewith, it will be recommended that
Respondent cease giving effect to said agreement, or to any extension, renewal,
modification, or supplement thereof, or to any superseding agreement with said
Union, unless and until same has been certified by the Board as the representative
of ,the Respondent's employees. Nothing herein, however, shall be construed
as requiring the Respondent to vary wages, hours of employment, rates of pay,
seniority, or other substantive features in its relations with the employees them-
selves, which the Respondent has established in the performance of said agree-
ment, or to prejudice the assertion by employees of any rights they may have
thereunder.
Finally, because of Respondent's manifest hostility to the efforts of its em-
ployees to assert the rights guaranteed them by the Act and the amended Act, it
will be recommended that Respondent cease and desist from in any manner inter-
fering with, restraining, or coercing its employees in their right to self-organiza-
tion.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following :
CONcuSIONS or LAw
1. Respondent in the operation of its plant at Jasper, Alabama; at all times
material herein was and is engaging in commerce within the meaning of Section
2 (6) and (7) of the Act and the same numbered section of the amended Act.
2. Textile Workers Union of America, affiliated with the Congress of Indus-
trial Organizations, and Upholsterers International Union of North America,
Local Union 435, affiliated with the American Federation of Labor, at all times
material herein were and are labor organizations within the meaning of Section
2 (5) of the Act and the same numbered section of the amended Act.
3. All employees of Respondent at its Jasper, Alabama, plant, excluding execu-
tives, clerical employees, guards, professional employees, and supervisors as
defined by the amended Act, at all times material herein constituted and do
constitute a unit appropriate for collective bargaining within the meaning of
Section 9 (b) of the Act and the same numbered section of the amended Act.
4. Textile Workers Union of America, affiliated with the Congress of Industrial
Organizations, was on July 22, 1946, at all times material herein has been, and
now is, the exclusive representative of all the employees in the above-described
unit for the purposes of collective bargaining within the meaning of Section 9 (a)
of the,Act and the same numbered section of the amended Act.
14 Crossett Lumber Co ., 8 NLRB 440.
JASPER NATIONAL MATTRESS COMPANY 105
5. By refusing on July 22, 1946, and thereafter to bargain collectively with
Textile Workers Union of America, affiliated with the Congress of Industrial
Organizations, as the exclusive representative of the employees in the appropriate
unit, Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (5) of the Act and of Section 8 (a) (5) of the amended
Act.
6. By discriminating in regard to the hire and tenure of those employees whose
names are listed in Appendix A of this Intermediate Report, thereby discourag-
ing membership in a labor organization, Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of Section 8 (3) of the Act and
of Section 8 (a) (3) of the amended Act.
7. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act and the same numbered section
of the amended Act, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (1) of the Act and 8 (a) (1) of the
amended Act.
8. The aforesaid unfair labor practices have been and are unfair labor practices
affecting commerce within the meaning of Section 2 ( 6) and (7) of the Act and
of the same numbered section of the amended Act.
9. Respondent has not engaged in unfair labor practices by surveillance of the
union meetings and activities of its employees, by discrimination in the hire
and tenure of employment of its employee Arlen Jacks, or by giving financial aid
or other support to Upholsterers International Union of North America, Local
Union 435, affiliated with the American Federation of Labor.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, the undersigned recommends that Respondent,
Jasper National Mattress Company, Jasper, Alabama, its officers, agents, succes-
sors, and assigns , shall:
1. Cease and desist from :
(a) Refusing to bargain with Textile Workers Union of America, affiliated
with the Congress of Industrial Organizations, as the exclusive representative
of its employees in the unit heretofore found appropriate with respect to rates
of pay, wages, hours of employment, and other conditions of employment ;
(b) Recognizing Upholsterers International Union of North America, Local
Union 435, affiliated with the American Federation of Labor, 4s the exclusive
representative of its employees for purposes of collective bargaining, unless and
until such organization shall have been certified by the National Labor Relations
Board as the exclusive representative thereof ;
(c) Giving effect to its agreement of October 19, 1946, as supplemented Novem-
ber 5, 1947, with Upholsterers International Union of North America, Local
Union 435, affiliated with the American Federation of Labor, or to any extension,
renewal, modification, or supplement thereof, or to any superseding agreement
with said labor organization, unless and until such organization shall have been
certified by the National Labor Relations Board as the representative of Re-
spondent's employees, provided that any such extension, renewal, modification or
supplement of said agreement or any subsequent agreement shall conform to the
provisions of the National Labor Relations Act, as amended, and provided
further that the Respondent in complying herewith shall not be required to vary
the wages, hours of employment, rates of pay, seniority, or other substantive
features of the employment relationship established by its agreement of October
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
19, 1946, as supplemented Noi-ember 5, 1947, or by any subsequent agreement with
said organizations;
(d) Discouraging membership in Textile Workers Union of America, affiliated
with the Congress of Industrial Organizations, or any other labor organization
of its employees, by discriminatorily discharging or refusing to reemploy, by
discriminatorily refusing employment, or by discriminating in any other manner
in regard to hire or tenure of employment or any term or condition of employ-
ment ;
(e) Encouraging membership in Upholsterers International Union of North
America, Local Union 435, affiliated with the American Federation of Labor, by
giving preference as to hire or tenure of employment, or any term or condition
of employment based on membership therein except as such preference shall have
been established by agreement valid under the provisions of the National Labor
Relations Act, as amended ;
(f) In any like or related manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form, join,
or assist Textile Workers Union of America, affiliated with the Congress of
Industrial Organizations, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted activi-
ties for the purposes of collective bargaining or other mutual aid or protection
as guaranteed in Section 7 of the amended Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the amended Act :
(a) Offer those employees named in Appendix A to the Intermediate Report
reinstatement in the manner set forth in "The remedy" ;
(b) Make whole in the manner set forth in "The remedy" the individuals
whose names appear in Appendix A for any loss they may have suffered by
reason of the Respondent's discrimination against them ;
(c) Withdraw and withhold all recognition from Upholsterers International
Union of North America, Local Union 435, affiliated with the American Federa-
tion of Labor, as the exclusive representative of its employees for the purpose
of collective bargaining with respect to rates of pay, wages, hours of employ-
ment, or other conditions of employment unless and until said organization shall
have been certified by the National Labor Relations Board as the exclusive rep-
resentative of its employees in an appropriate unit ;
(d) Recognize and bargain collectively with Textile Workers Union of
America, affiliated with the Congress of Industrial Organizations, as the ex-
clusive representative of all its employees, excluding executives, clerical em-
ployees, guards, professional employees, and supervisors as defined in the
amended Act, and if an understanding is reached, embody such understanding in
a signed agreement ;
(e) Post at its Jasper, Alabama, plant, copies of the notice attached hereto
and marked Appendix A. Copies of said notice, to be furnished by the Regional
Director of the Tenth Region, shall, after being signed by Respondent's repre-
sentative, be posted by Respondent immediately upon receipt thereof and main-
tained by it for sixty (60) days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices are not altered, defaced,
or covered by any other material; and
(f) Notify the Regional Director for the Tenth Region in writing within
twenty (20) clays from the date of the receipt of this Intermediate Report what
steps the Respondent has taken to comply therewith.
JASPER NATIONAL MATTRESS COMPANY 107
It is further recommended that, unless the Respondent shall within twenty
(20) days from the receipt of this Intermediate Report notify said Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the Respondent to
take the action aforesaid.
As provided in Section 203:46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 1943, any party may,
within twenty (20) days from the date of service of the order transferring the
case to the Board, pursuant to Section 203.45 of said Rules and Regulations,
file with the Board, Washington 25, D. C., an original and six copies of a state-
ment in writing setting forth such exceptions to the Intermediate Report and
Recommended Order or to any other; part of the record or proceeding (including
rulings upon all motions or objections) as he relies upon, together with the
original and six copies of a brief in support thereof ; and any party may, within
the same period, file an original and six copies of a brief in support of the Inter-
mediate Report and Recommended Order. Immediately upon the filing of such
statement of exceptions and/or briefs, the party filing the same shall serve it copy
thereof upon each of the other parties. Statements of exceptions and briefs shall
designate by precise citation the portions of the record relied upon and shall be
legibly printed or mimeographed, and if mimeographed shall be doubled spaced.
Proof of service on the other parties of all papers filed with the Board shall be
promptly made as required by Section 203.85. As further provided in said
Section 203.46 should any party desire permission to argue orally before the
Board, request therefor must be made in writing to the Board within ten (10)
days from the date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said
Rules and Regulations, be adopted by the Board and become its findings, con-
clusions, and order, and all objections thereto shall be deemed waived for all
purposes.
Dated at Washington, D. C., this 15th day of August 1949.
EUGENE E. DIXON,
Trial Examibn.er.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT recognize UPHOLSTERERS INTERNATIONAL UNION OF NORTH
AMERICA, LOCAL UNION 435, affiliated with the AMERICAN FEDERATION OF LABOR,
as the exlusive representative of our employees in our Jasper, Alabama,
plant for the purposes of collective bargaining, unless and until said organi-
zation shall have been certified by the National Labor Relations Board as
said representative.
WE WILL NOT give effect to our agreement dated October 19, 1946 as supple-
mented November 5, 1947, with UPHOLSTERERS INTERNATIONAL UNION OF NORTH
AMERICA, LOCAL UNION 435, affiliated with the AMERICAN FEDERATION OF LA-
BOR, or to any extension, renewal, modification, or supplement thereof, or to
any superseding agreement with said Union, unless and until said Union
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall have been certified by the National Labor Relations Board as the rep-
resentative of employees in an appropriate unit, and unless said agreement
shall conform to the provisions of the National Labor Relations Act, as
amended.
WE WILL NOT encourage membership in UPHOLSTERERS INTERNATIONAL
UNION OF, NORTH AMERICA, LOCAL UNION 435, affiliated with the AMERICAN
FEDERATION OF LABOR, or any other labor organization, by giving preference
as to hire or tenure of employment or any term or condition of employment
based on membership therein, except as such preference shall have been
established by agreement in conformity with the provisions of the National
Labor Relations Act as amended.
WE WILL NOT refuse, to bargain collectively with TEXTILE WORKERS
UNION OF AMERICA, affiliated with the CONGRESS OF INDUSTRIAL ORGANIZA-
TIONS, as the exclusive representative of our employees in the bargaining unit
described herein with respect to rates of pay, wages, hours of employment,
or other conditions of employment.
WE WILL BARGAIN collectively with TEXTILE WORKERS UNION OF AMERICA,
affiliated with the CONGRESS OF INDUSTRIAL ORGANIZATIONS, as the exclusive
representative of all of our employees in the bargaining unit described below
and, if an understanding is reached, we will embody such understanding in a
signed agreement. The bargaining unit is:
All employees, excluding executives, clerical employees, guards, profes-
sional employees, and supervisors, as defined in the National Labor Relations
Act as amended.
WE WILL MAKE WHOLE the following employees for any loss of pay suffered
as a result of discrimination against them and offer each of them who has
not already been reinstated or offered reinstatement immediate and full
reinstatement to his former or substantially equivalent position without
prejudice to his seniority or any other rights and privileges previously
enjoyed.
James H. Smith John L. McGuff
William E. Nelson Delma Watts
L. B. Walker Charles Fox
Austin Smith
All of our employees are free to become or remain members of TEXTILE WORKERS
UNION OF AMERICA, affiliated with the CONGRESS OF INDUSTRIAL ORGANIZATIONS, or
any other labor organization. We will not discriminate in regard to hire or ten-
ure of employment or any term or condition of employment against any employee
because of membership in or activity on behalf of any such labor organization.
JASPER NATIONAL MATTRESS COMPANY,
Enzployer.
By------------------------------
IDated-------------------- ( 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.