Joanna Cotton Mills Co.

National Labor Relations Board - Board Decisions

Mar 14, 1949

81 N.L.R.B. 1398 (N.L.R.B. 1949)

In the Matter of JOANNA COTTON MILLS COMPANY 1 and UNITED TEx-
TILE WORKERS OF AMERICA, AFL
Case No. 10-C-2115.-Decided March 14, 1949
DECISION
AND
ORDER
On April 26, 1948, Trial Examiner John H. Eadie issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner further found
that the Respondent had engaged in other unfair labor practices al-
leged in the complaint, and recommended that the complaint be dis-
missed in these regards. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a supporting brief. The Respondent's
request for oral argument is hereby denied, as the record and the
Respondent's exceptions and brief, in our opinion, adequately present
the issues and the positions of the parties.
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 Respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the additions noted
below.
(1) The original charge herein, filed on November 1, 1946, and
served upon the Respondent on June 26, 1947, alleged, among other
things, that the Respondent had discharged Jones M. Blakely because
' The complaint names the respondent as Joanna Textile Mills Co The respondent's
answer alleges that Joanna Cotton Mills Company, a South Carolina corporation, organ-
ized on March 31, 1947, is the successor of Joanna Textile Mills Co. At the hearing the
General Counsel admitted the allegations contained in the answer in this respect Since
no issue is presented in the case making it necessary to differentiate between the two,
Joanna Cotton Mills Company and Joanna Textile Mills Co will be referred to hereinafter
jointly as the respondent.
81 N. L. R. B., No. 230.
1398
JOANNA COTTON MILLS COMPANY 1399
of his membership in and activities on behalf of United Textile Work-
ers of America, AFL. An amended charge, filed on February 13,
1948, and served upon the Respondent on February 27, 1948, alleged
that Blakely was discharged because of his membership in and activi-
ties on behalf of the Union, and also because he engaged with other
employees in concerted activities for the purpose of collective bargain-
ing and for other mutual aid and protection. The Respondent con-
tends that the second charge was substituted for the first charge,
and that the complaint, which was served upon the Respondent on
March 20, 1948, should therefore be dismissed because it was not
issued in compliance with the proviso to Section 10 (b) of the Labor
Management Relations Act, 1947, which provides :
That no complaint shall issue based upon any unfair labor prac-
tice occurring more than six months prior to the filing of the
charge with the Board and the service of a copy thereof upon
the person against whom such charge is made... .
Inasmuch as the original charge was filed and served prior to the
effective date of the amendments of the Act; as the second charge was
clearly an amended and not a substitute charge; and as both the origi-
nal and the amended charge alleged the discriminatory discharge
of Blakely, so that the Respondent had adequate notice, from and after
service upon it of the original charge, of the issues it would be required
to meet,2 we find that the limitations of Section 10 (b) are inapplicable
to the facts of this case." Accordingly, we affirm the Trial Examiner's
denial of the Respondent's motion to dismiss on this ground.
(2) Blakely had been employed by the Respondent for about 12
years, and, at the time of his discharge, had been a loom fixer on
the night shift for about 2 years. After an altercation with Lewis,
the second hand who was his immediate superior, Blakely initiated
and circulated a petition which stated as follows :
We, the undersigned, hereby ask Mr. Willingham, overseer of
No. 2 shift to give us a new second hand on the second shift, as
Mr. Lewis has proved very unsatisfactory.
The petition contained the names of 34 employees who worked under
Lewis' supervision, in addition to Blakely's name.
Although the Respondent, at the hearing, claimed that Blakely's
argument with Lewis and other misconduct constituted grounds for
discharge, it is clear from the entire record, including admissions by
officials of the Respondent, that Blakely was discharged because of
his activity in connection with the petition. The Trial Examiner
2 See N. L. R. B. v. Mackay Radio & Tel. Co., 304 U. S. 333.
8 Matter of Itasca Cotton Manufacturing Company, 79 N. L . R. B. 1442.
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
found, and we agree, that the circulation and signing of the petition
by Blakely and the other employees constituted concerted activity
entitled to the protection of the Act. Even if Blakely did, as the
Respondent contends, initiate the petition as a result of his personal
quarrel with Lewis, it is nevertheless true that a substantial number
of employees signed the petition expressing dissatisfaction with Lewis
as their supervisor. Our dissenting colleagues grant that this activity
was, "in the verbally literal sense, `concerted' ", but would deny Blakely
the protection of the Act because his activity in connection with the
petition "grew out of personal resentment." In innumerable cases,
however, the Board and the courts have granted the protection of the
Act to individuals engaging in concerted activity without regard to
the motives of the individuals who participated in such activity. In
the Peter Cailler Kohler case,4 for example, the Court of Appeals for
the Second Circuit stated as follows :
... Whipple [the discharged employee who was ordered rein-
stated] called a meeting of "the P. C. K." . . . there was some
reason to suppose that he called the meeting only to promote his
election for the office of county clerk . . . A resolution was passed
... When the resolution was published in the local newspapers,
the company considered it a grave injury to its business, which per-
haps it was; and dismissed Whipple as the moving spirit. The
sole question is whether he and the others who passed the resolu-
tion were acting within their right "to engage in concerted activ-
ities, for the purpose of collective bargaining or other mutual
aid or protection."
... When all the other workmen in a shop make common cause
with a fellow workman over his separate grievance, . . . they en-
gage in a "concerted activity" for "mutual aid or protection," al-
though the aggrieved workman is the only one of them who has
any immediate stake in the outcome. The rest know that by their
action each one of them assures himself, in case his turn ever
comes , of the support of the one whom they are all then helping;
and the solidarity so established is "mutual aid" in the most literal
sense, as nobody doubts . . . the immediate quarrel does not itself
concern them, but by extending the number of those who will
make the enemy of one the enemy of all, the power of each is
vastly increased. [Emphasis added.]
... so long as the "activity" is not unlawful, we can see no
justification for making it the occasion for a discharge.... Such
activities may be highly prejudicial to its employer; . . . but the
4 N. L. R. B. v. Peter Cailler Kohler Swiss Chocolates Co , Inc., 130 F. (2d) 503.
JOANNA COTTON MILLS COMPANY 1401
statute forbids him by a discharge to rid himself of those who lay
such burdens upon him. Congress has weighed the conflict of
his interest with theirs, and has pro tanto shorn him of his
powers.
We grant, of course, that the selection of supervisory personnel is
within the usual scope of management prerogative, without regard to
the preferences of the employees to be supervised. We are convinced,
however, that employees may nevertheless express in concert their
views regarding the selection of their supervisor to the extent that it
directly affects their wages, hours, or working conditions, without
thereby imperiling their employment status.5
The employees who circulated and signed the petition in this case
were acting in concert for mutual aid or protection with respect to
conditions of work, and thereby constituted a labor organization for
the purpose of dealing with their employer within the meaning of the
Act.' The Respondent's discrimination against Blakely for acting in
concert with this group of employees discouraged membership in and
activity on behalf of such organization, in violation of Section 8 (3)
of the Act. Furthermore, as the circulation of the petition was con-
certed activity for the purpose of mutual aid or protection, the Re-
spondent, by discriminating against Blakely, interfered with,
restrained, and coerced its employees in the exercise of their rights
under Section 7 of the Act, thereby also violating Section 8 (1) of
the Act. The remedy of reinstatement and back pay is appropriate
and necessary to remedy the unfair labor practice in such a case without
regard to whether the discrimination against Blakely be deemed a
violation of Section 8 (1) or 8 (3) of the Act, or of both.7
"In Matter of Phoenix Mutual Life Insurance Company, 73 N. L R . B. 1463. enfd. 167
F. (2d) 983 ( C. A. 7, May 7, 1948 ), preparation of a draft of a letter by insurance sales-
men communicating their views with respect to the Employer 's appointment of a cashier
was found to be protected concerted activity because the competency of the cashier affected
the salesmen 's earnings and, therefore , it was in their direct interest to seek the appoint-
ment of the most efficient cashier. In Matter of Contasner Mfg. Co ., 75 N L . R. B. 1082,
the Board found a strike to protest the discharge of a forelady to constitute protected con-
certed activity because the striking employees believed , although mistakenly , that the
forelady was discharged because of her union activity , and they feared that they might be
subjected to similar reprisals . The Court of Appeals for the Seventh Circuit (Sax v.
N. L. R. B ., 171 F . ( 2d) 769 (C. A. 7, December 15, 1948 )) denied enforcement of the
Board's order on other grounds, but agreed that the strike constituted a protected concerted
activity, and that the Employer "could not refuse to hire them or could not discriminate
against them because of their having engaged in the concerted activity of the strike."
Matter of Fontaine Converting Works , Inc., 77 N. L. R. B. 1424 is distinguishable from
the instant case inasmuch as the Board there found , as a matter of fact, that the purpose
of the concerted activity in question was to advance not the interests of the participating
employees but the interest of the supervisor whose demotion they were protesting.
6 See Matter of Tovrea Packing Co ., 12 N. L . R. B. 1063 ; enfd . 111 F. ( 2d) 626 ; Matter
of General Motors Corporation , 67 N. L . R B. 965.
7 Matter of Gibbs Corporation, 74 N. L . It. B. 1182.
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Joanna Cotton
Mills Company, Goldville, South Carolina, and its officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in a labor organization of its em-
ployees by discharging or otherwise discriminating against any of its
employees because of their union membership or concerted activities;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form or join labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activ-
ities for the purpose of collective bargaining or other mutual aid or
protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Jones M. Blakely immediate and full reinstatement to
his former or to a substantially equivalent position, without prejudice
to his seniority and other rights and privileges;
(b) Make whole Jones M. Blakely for any loss of pay he may have
suffered by reason of the Respondent's discrimination against him,
by paying him a sum of money equal to the amount he would normally
have earned as wages from the date of the discrimination to the date
of the Respondent's offer of reinstatement, less his net earnings during
said period;
(c) Post at its plant at Goldville, South Carolina, copies of the
notice attached hereto marked "Appendix A".8 Copies of said notice,
to be furnished by the Regional Director for the Tenth Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof, and maintained
by it for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material;
(d) 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 herewith.
8In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be inserted before the words, "A DECISION AND ORDER," the words,
"A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
JOANNA COTTON MILLS COMPANY 1403
IT IS FURTHER ORDERED that the complaint , insofar as it alleges that
the Respondent unlawfully interrogated its employees concerning their
union affiliation, and that the Respondent, by promises and threats
relating to company-owned living quarters, has discouraged concerted
activities, be, and it hereby is, dismissed.
CHAIRMAN HERZOG and MEMBER MURDOCK dissenting :
We would not find that the Respondent violated Section 8 (a) (3) by
discharging Blakely, nor would we direct his reinstatement. His con-
duct in initiating a petition demanding the removal of his foreman
was not, under the circumstances of this case, the sort of activity which
we believed Congress intended this Board to protect. It grew out of
personal resentment at discipline imposed by that foreman because
Blakely was neglecting his duties in order to conduct certain wholly
personal affairs. Although Blakely succeeded in inducing fellow em-
ployees to join in signing the petition, thereby converting a manifesta-
tion of one individual's pique into activity which was, in the verbally
literal sense, "concerted," the entire history of the transaction satis-
fies us that the Respondent was not intruding upon its employees'
statutory rights by doing what it did.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in any labor organization
of our employees, by discharging or in any other manner dis-
criminating in regard to the hire and tenure of employment or
any term or condition of employment of any of our employees.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection.
WE WILL offer to
Jones M. Blakely
immediate and full reinstatement to his former or a substantially
equivalent position, without prejudice to any seniority or other
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rights and privileges previously enjoyed , and make him whole for
any loss of pay suffered as a result of his discriminatory discharge.
JOANNA COTTON MILLS COMPANY,
Employer.
By ------------------------------------
Dated --------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Messrs. William Pate, Jr., James W. Mackle, Shally Wise, Gilbert Cohen, and
Morgan Stanford, for the General Counsel.
Todd, Grier, McDonald & Burns, by Mr. A. C. Todd and Mr. Howard L. Burns,
of Greenwood, S. C., for the respondent.
STATEMENT OF THE CASE
Upon an amended charge duly filed by United Textile Workers of America,
A. F. L., herein called the Union, the General Counsel by the Regional Director
for the Tenth Region (Atlanta, Georgia) of the National Labor Relations Board,
herein called the Board, issued his complaint dated March 1, 1948, against Joanna
Textile Mills Co., 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) and (3) and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act, and Section 8 (a) (1)
and (3) and Section 2 (6) and (7) of the Act, as amended by the Labor Manage-
ment Relations Act, 1947, Public Law 101, 80th Congress, first session, Chapter
120, herein called the Amended Act. Copies of the complaint, the charge, and
notice of hearing were duly served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance
that the respondent: (1) on or about October 13, 1946, discharged Jones M.
Blakely and thereafter failed and refused to reinstate him because of his mem-
bership in and activities on behalf of the Union, and because he engaged in con-
certed activities with other employees for the purposes of collective bargaining
and other mutual aid and protection ; and (2) from on or about July 30, 1946, to
the date of the issuance of the complaint, by certain officers, agents and super-
visory employees, interrogated its employees concerning their union affiliation ;
threatened and warned employees to refrain from assisting, becoming members of
or remaining members of the Union ; promised its employees more money, better
jobs, living quarters, and other rewards if they would not support the Union ;
advised employees to vacate company-owned living quarters because of their
activities on behalf of the Union ; and threatened its employees with discharge
or other discipline if they engaged in concerted activities for the purposes of col-
lective bargaining or other mutual aid and protection. The complaint further
alleged that by the foregoing conduct the respondent interfered with, restrained
and coerced its employees in the exercise of the rights guaranteed in Section 7 of
the Act and the same section of the Amended Act.
i See footnote 1 of Decision and Order.
JOANNA COTTON MILLS UOMPANY 1405
On or about March 10, 1948, the respondent filed an answer wherein it ad-
mitted certain allegations of the complaint as to the nature and extent of its
business but denied the commission of any unfair labor practices. The answer
affirmatively alleged in substance that Section 10 (b) of the Amended Act con-
stituted a bar to the complaint and that Jones M. Blakely was discharged on
or about October 14, 1946, because of "misconduct while at work."
Pursuant to notice a hearing was held at Laurens, South Carolina, on March
16 and 17, 1948, before the undersigned Trial Examiner, duly designated by the
Chief Trial Examiner. The General Counsel and the respondent were repre-
sented by counsel. Excepting the Union, all parties participated in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses and to
introduce evidence bearing on the issues was afforded all parties.
At the conclusion of the evidence, the General Counsel moved to conform the
pleadings to the proof as to formal matters such as names and dates. The
motion was granted without objection. At the same time, counsel for the
respondent moved that the complaint be dismissed for lack of proof and on the
further ground that Section 10 (b) of the Amended Act constitutes a bar to the
complaint since the alleged unfair labor practices occurred more than 6 months
prior to the filing and service of the amended charge. Ruling on this motion
was reserved. The motion is disposed of as hereinafter indicated. Counsel
for the respondent and the General Counsel presented oral argument before the
undersigned at the close of the hearing. All parties .were afforded an oppor-
tunity to file briefs or proposed findings of fact and conclusions of law, or both.
Counsel for the respondent has filed a brief with the undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Joanna Cotton Mills Company is a corporation organized under and existing
by virtue of the laws of the State of South Carolina. Respondent maintains its
principal office and plant at Goldville, South Carolina. At its Goldville plant,
the respondent is engaged in the manufacture, sale and distribution of cloth
and related products.
In the course and conduct of its business operations during the year ending
March 1, 1948, the respondent purchased raw materials, consisting principally
of cotton and valued in excess of $500,000, approximately 25 percent of which was
purchased outside the State of South Carolina and shipped to its Goldville plant.
During the same period of time the respondent manufactured and sold finished
products consisting principally of cotton cloth and having a value in excess of
$1,000,000, approximately 90 percent of which was sold and shipped to customers
outside the State of South Carolina.
The respondent employs approximately 1500 persons at its Goldville plant.
II. THE LABOR ORGANIZATION INVOLVED
United Textile Workers of America, A. F. L., is a labor organization which
admits to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
1. The discriminatory discharge of Jones M. Blakely
Excepting a period of about 2 weeks in 1943, Blakely was employed steadily
by the respondent from November 1934 until the date of his discharge. He was
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employed as a loom fixer in the weave room on the second shift, which started
at 5 p. m. and ended at 3 a. in. Overseer W. J. Willingham had general super-
vision over the weave room, and Renard Lewis, a second hand, had direct charge
of the second shift. Willingham had sole authority to hire and fire employees.
However, since Willingham was not present at the plant during the hours of
the second shift, Lewis had the power to send home employees who were in-
subordinate or guilty of other misconduct.
About the latter part of July 1946 the Union began organization of the respond-
ent's employees and Blakely joined the Union at about that time. Thereafter,
Blakely solicited the respondent's employees to sign union application cards and
was otherwise active on behalf of the Union. Before his discharge he succeeded
in obtaining approximately 150 signed cards. Blakely solicited about 30 of these
in the plant. Also before his discharge, on about two or three occasions he
distributed union leaflets near the plant gate just before the change in shifts, and
he attended two meetings of the Union. At the first meeting there were between
25 and 50 employees present and approximately 100 employees were present at
the second.
On Thursday, October 10, 1946, W. E. Caudell, a weaver, complained to Willing-
ham that some of his looms had been flagged but that Blakely had failed to fix
them because he was taking up too much time soliciting employees to take chances
on a punchboard and in talking with a woman by the name of Ruby Downer,
another weaver.' Before the start of the shift on Friday, Willingham advised
Lewis of the complaint and told him to warn Blakely to stay on the job. Shortly
before 6 p. m. Lewis spoke to Blakely and warned him about the punchboard
and loitering with Downer. Blakely agreed to discontinue the punchboard
but in effect refused to stay away from Downer by stating to Lewis, "I'm not
staying off my job . . . I don't reckon that it's yours or anybody else's damn
business."'
At some time during the early part of the shift, and shortly after 6 p. m.,
Blakely prepared a petition directed to Willingham which stated in substance that
Lewis had proved unsatisfactory as a second hand and requested that Lewis
be replaced. Blakely and at least one other employee, James E. Harrison,
solicited employees of the weave room during working hours to sign the petition'
2 Caudell's looms were part of the looms assigned to Blakely as loom fixer. It was also
his duty to fix half the looms of Downer. Whenever a loom was out of order, it was flagged
by the weaver in order to attract the loom fixer's attention Since weavers were paid
on a piece-rate basis, idle looms meant loss of production and wages
8 Blakely testified credibly to the above conversation. Lewis testified that Blakely
used vile language and threatened to "whip" the man who ". . . meddles in my business
about that woman." Blakely, in effect, denied the use of any vile language. The under-
signed, because of the subsequent actions of the respondent hereinafter found and dis-
cussed, does not believe that Blakely used language or threats quite as strong as those
attributed to him by Lewis. Blakely further testified that the conversation took place
at about 10 or 10 : 30 p. m. Lewis testified that it took place shortly before 6 p. m.
While the undersigned does not believe that time of the conversation is material to the
issues in the case, contrary to the contentions of the respondent, nevertheless he believes
and finds that the conversation did occur before 6 p. m. Lewis testified that he was sure
it took place at that time because he had Willingham's complaint in mind and wanted
"to get it straightened out." His testimony as to the time is supported by other witnesses.
Employee Dan Gunter testified that he had a conversation with Blakely in the plant cafe-
teria at about 6 p. m. during which Blakely told him of his argument with Lewis. Employee
John Gruber testified that he heard of the argument at about 7 or 8 p. m. Employee
Caudell testified in substance that Blakely told him at some time before 7 or 8 p . M. that
he had had "a little raucous" with Lewis.
4 The record as a whole conclusively shows that a number of employees in the weave
room were dissatisfied with Lewis as a second hand . Although the testimony of Blakely
JOANNA COTTON MILLS COMPANY 1407
On Saturday morning, October 12, Lewis went to the home of Willingham
and told him about his argument with Blakely and the petitions Willingham
said that he would investigate the petition and discharge the person responsible
for its Also on Saturday , and after the conversation between Lewis and
Willingham , Blakely visited Willingham at his home and presented to him the
petition which at the time contained the names of 35 employees! Willingham
told Blakely that he would investigate the petition and that he would discharge
the employee responsible for its On Monday, October 14, Willingham spoke to
Gunter, and from this conversation Willingham came to the conclusion that
Blakely was the instigator of the petition.
At the start of the second shift Blakely was discharged by Willingham.
When Blakely asked Willingham the reason for his discharge, Willingham re-
plied in substance that he had found out that Blakely was "at the root of this
petition."
On Tuesday, the day following his discharge, Blakely went to the office of
W. A. Moorhead , vice president and general manager of the respondent. In
substance Moorhead told Blakely that Willingham had told him that Blakely was
the instigator of the petition and that he had been discharged for that reason."
Blakely returned to the respondent's plant about May 1947, and applied to
James Sloan, respondent's personnel manager, for employment as a loom fixer.
Sloan told Blakely that the respondent could not use him. He applied again in
the early part of March 1948, and Sloan told him that there were no vacancies
for loom fixers.11
indicates otherwise , the undersigned is convinced and finds that Blakely was the instigator
of the petition . In this connection , employee Gunter testified credibly that during his
conversation with Blakely in the plant cafeteria at about 6 p. in. Blakely suggested a
petition to remove Lewis.
' Lewis testified that he learned of the petition near the end of the shift from A. T.
Power, a loom fixer, but that Power did not mention Blakely in this connection.
6 Both Lewis and Willingham testified in substance to the conversation related above.
Aside from the self-serving nature of other testimony of theirs in this connection and
contradictions therein, for reasons hereinafter discussed it is not credited by the under-
signed Lewis testified that he recommended Blakely's discharge because of the argument
during the previous night. Willingham testified that at the time of his talk with Lewis
he had decided to discharge Blakely for that reason.
T The respondent contends that several of the signatures on the petition were forged.
The undersigned believes this to be immaterial and therefore finds it unnecessary to resolve
the issues of fact presented . The petition was received in evidence The names of
employees D. M Morris and J . B. Boyce appear thereon. Morris testified that he did
not sign the petition and that he did not work on the night it was circulated . Blakely
testified without contradiction that Morris' daughter signed his name to the petition.
Boyce testified that he did not sign or authorized anyone to sign his name to the petition.
He testified in substance that Blakely solicited him to sign ; that he refused ; and that he
told Blakely that if his name appeared on the petition , Blakely would "have to put it on."
Blakely testified in substance that he did not remember whether or not he solicited Boyce
to sign the petition and denied the above testimony of Boyce as to their alleged conversation.
8 Both Blakely and Willingham testified to the above conversation and there are no
substantial conflicts in their testimony in this respect.
I Blakely testified without contradiction as to the above conversation and the under-
signed credits his testimony in this connection Willingham 's testimony , as a whole, may
be considered a categorical denial of the statement attributed to him by Blakely.
18 Blakely testified to the above conversation and the undersigned believes that the sub-
stance of his testimony in this connection is credible . The respondent objected to the testi-
mony upon the grounds that Moorhead had been killed in an accident shortly before the
hearing. If there was no corroborative evidence , the undersigned would be inclined not
to attach much weight to the testimony . However , a letter from Moorhead to the Board,
hereinafter discussed , more than supports Blakely's version of the conversation.
11 Both Sloan and Blakely testified substantially as above.
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concluding findings as to the discharge of Blakely
The respondent contends that Blakely was discharged for o%er-all misconduct
on the night of October 11, 1146. Specifically, the respondent claims that the
misconduct consisted of insubordination to Lewis, and preparation and circula-
tion of the petition while on the job and while being paid by the respondent.
The Board contends that Blakely was discharged by the respondent because of
his membership in and activities on behalf of the Union and because he engaged
in concerted activities with other employees for the purposes of collective bar-
gaining and other mutual aid and protection.
The undersigned is convinced and finds that the respondent did not discharge
Blakely because of his adherency to the Union. Although the record indicates
that Blakely was the leader in organizational efforts on behalf of the Union before
his discharge , nevertheless the preponderance of the evidence fails to establish
knowledge on the part of the respondent of such union activities . In this con-
nection, Blakely testified without contradiction that on or about October 1, 1946,
while at work he gave two application cards for membership in the Union to
employee Fred McCarson ; that he returned to the "spare floor" where McCarson
was working and McCarson returned the cards to him ; that he placed the cards
in his pocket where they could be seen; that at the time Lewis was standing a
short distance away and was looking in their direction ; and that Lewis told him
that he would have to get hack on his job as he was wasting too much time
at that end of the plant. The undersigned believes that testimony such as the
above is insufficient to impute knowledge to the respondent . Moreover, it ap-
pears that Blakely 's union activities were carried on secretly for the most part.
For example, when he distributed union circulars, it does not appear that he
stood openly at the plant gate and handed them out to employees entering or
leaving the plant . In this connection , he testified that he walked around and
gave the circulars to people sitting in cars who were waiting for the shift to
change and that he left some of the circulars in the town barber shop and pool-
room. There is no evidence that any of the respondent's officials or supervisory
employees observed this activity.
However , the undersigned is convinced and finds that Blakely was discharged
because of his connection with the petition and for this reason alone. The under-
signed has set forth above the conversation between Blakely and Willingham at
the time of his discharge on October 14, and the conversation between Blakely
and Moorhead on the following day. From these conversations , it is apparent
that the respondent discharged Blakely because it considered him the instigator
of the petition . Willingham testified that at the time of his conversation with
Lewis on Saturday, October 12, he decided to discharge Blakely and that the
reason for his decision was Blakely 's alleged abusive language and threats in his
argument with Lewis. The undersigned does not believe that the facts support
Lewis' and Willingham 's testimony as to the cause for the discharge . If Blakely
had, in fact, made the abusive statements attributed to him by Lewis, and if
Lewis had, in fact, reported such conduct to Willingham, the undersigned believes
that either Lewis would have sent Blakely home at the time of the argument or
Willingham , in his conversation with Blakely on Saturday , would have mentioned
the argument and discharged him then rather than wait until the start of the shift
on the following Monday. The respondent apparently contends that Lewis did
not take the above action because of his "greenness ." Nevertheless , if such is the
case, this still does not explain Willingham 's lack of action on Saturday. Fur-
ther, Willingham 's testimony indicates that he and Lewis were concerned about
the petition and that they did not consider the "run-in " or argument between
JOANNA COTTON MILLS COMPANY 1409
Blakely and Lewis of sufficient importance to warrant discharge. For example,
Willingham, when questioned by counsel about Lewis' statement to him con-
cerning the petition during their Saturday conversation, answered, "He [Lewis]
said he learned that he [Blakely] got up a petition in there to get rid of him."'
Further, Willingham testified that at the time of his conversation with Lewis on
Saturday he suspected that Blakely was the instigator of the petition. This testi-
mony , coupled with the undisputed testimony of Blakely to the effect that during
his conversation with Willingham on Saturday Willingham stated that he would
investigate and fire the person responsible for the petition, and that Willingham
did not mention his argument with Lewis, convinces the undersigned that the testi-
mony of Lewis and Willingham concerning the reason for discharge is not reliable
or credible. Further, there is the conversation between Moorhead and Blakely on
Tuesday during which Moorhead in substance told Blakely that he was discharged
because of his connection with the petition. Although, as previously stated,
Moorhead was not available as a witness for the reason that he had been killed in
an accident prior to the hearing, there is documentary evidence confirming Blake-
ly's version of the conversation. In a letter to the Board, dated November 14,
1946, Moorhead stated as follows :
A written petition, signed by thirty-five operatives requesting that Mr.
Lewis be replaced, was presented to Mr. E. L. Willingham, the overseer of No.
2 weaving , by Mr. Jones M. Blakely. At the time the petition was presented
Mr. Willingham inquired of Mr. Blakely who initiated the petition and was
informed that Mr. Blakely did not know. Mr. Willingham then stated that
he would investigate and upon determining who initiated the petition would
then discharge such person. After an investigation Mr. Willingham concluded
that this petition was originated by Mr. Blakely and Mr. Blakely was dis-
charged for this reason and this reason alone . . . The discharge of Mr.
Blakely was occasioned entirely by the destructive character of petitions of
this type upon necessary disciplinary authority which must be exercised by
overseers.
The above statement of Moorhead confirms Blakely's testimony concerning his
discharge in almost every respect's
.In its answer, argument and brief the respondent mentions the fact that
Blakely solicited signatures to the petition during his working time, apparently
cpntending that Blakely's discharge was justified because such solicitations vio-
lated respondent's alleged no-solicitation rule or policy. If such is the respond-
ent's contention it is rejected by the undersigned. The evidence does not
establish that the respondent was aware that Blakely solicited employees during
his working time or that such alleged violations were taken into consideration
at the time of discharge. The above letter of Moorhead indicates otherwise.
Moreover, the evidence discloses that the respondent did not have any set rule
against solicitations during working time, as distinguished from employees' free
or spare time; and that if the respondent did have some such rule or policy, it
had never been communicated to employees or published and was not enforced.
The respondent further contends that a petition to replace a supervisory em-
ployee is not a protected concerted activity. While the undersigned believes
u Other than the above, both Lewis and Willingham testified to the effect that during
their conversation Blakely was not mentioned in connection v ith the petition
33 The undersigned considers as immaterial uncontradicted testimony of employee Caudell
that immediately after Blakely 's discharge Blakely told him, "That little incident that we
had caused me my job." As heretofore related , Caudell complained to Willingham because
Blakely had failed to fix his looms
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that there is some merit to the respondent's contention, nevertheless it is re-
jected. In the case of Aladdin Industries, Incorporated, the Board held : "
... Section 2 (9) of the Act defines a "labor dispute" to include "any
controversy concerning terms, tenure or conditions of employment. . . ."
The type of supervisor under whom an employee works is of direct concern
to the employee and may be of vital importance to him. The conduct of a
supervisor may affect an employee's well-being as much as low pay, long
hours, or other unsatisfactory conditions of work. A dispute involving the
discharge or demotion of a supervisor objectionable to the employees is, we
think, a dispute concerning a condition of employment and, therefore, a labor
dispute within the meaning of the Act.
In the case of Phoenix Mutual Life Insurance Company
11 where two insurance
salesmen were discharged for drafting a letter to the employer expressing their
views concerning the hiring of a particular individual as a cashier, the Board
has held that the discharge of the salesmen was in violation of Section 8 (3)
of the Act and that drafting of such letter was a protected concerted activity.
In reaching this conclusion, the Board stated, "In essence, their activity con-
sisted of common discussion of circumstances which they considered elements
of a grievance concerning their working conditions, and preparation of a method
for presenting the grievance to their employer. This was reasonable and
temperate conduct by employees who had a real cause for concern and was
clearly within the scope of the kind of concerted activity protected by Section 7
of the Act."
Accordingly, the undersigned is convinced and finds that the respondent dis-
charged Jones M. Blakely on October 14, 1946, and has since failed and refused
to reinstate him because of his concerted activities with other employees for
the purposes of collective bargaining and other mutual aid and protection.
2. Alleged interference, restraint, and coercion
With one exception, the General Counsel failed to offer any evidence to support
the allegations in the complaint of interference, restraint, and coercion. The
only evidence of possible coercion in the case was the respondent's request to
G. F. Blakely, father of Jones M. Blakely, that he vacate a house owned by the
respondent. Early in December 1946, the respondent notified Blakely to va-
cate the house which he occupied. Blakely protested the respondent's action to
Moorhead, and further protested against immediate removal on the ground that
he expected his children to visit him during Christmas. Moorhead agreed to
permit Blakely's occupancy of the house through Christmas and requested him
to vacate it as soon as possible thereafter. Blakely did not vacate the house
until the end of January 1947.
In connection with the respondent's demand for Blakely's house, Mary Beck-
son, his daughter, and sister of Jones M. Blakely, testified that during a conver-
sation with D. J. Buchanan, her overseer, at some time prior to Christmas 1946,
Buchanan stated :
... now Mary, you can make a case against me for what I'm going to say,
but, we, the mill officials, have done something for you now we want you to
do something for us . . . we want you to vote against the union . . . I like
u Matter of Aladdin Industries , Incorporated , 22 N. L . R B 1195, at page 1216.
15 Matter of Phoenix Mutual Life Insurance Company, 73 N L. R. B. 1463.
JOANNA COTTON MILLS COMPANY 1411
Mac [Jones M. Blakely ] and I'd like to be his friend if he'd let me, and I
like his Dad, but what Mac is doing isn't helping him any or his gray-headed
dad. If he didn't quit they would have to ask his dad for his house.
Buchanan denied the statements attributed to him by Beckson. Concerning
this conversation with Beckson he testified that she stated that Moorhead had
been "awfully nice" to her by offering a house ; that she then said, "This
union, I'm going to wash my hands with it"; and that he replied that that was
something for her and not him to decide, as he did not have anything to say about
the Union. The undersigned is convinced that Buchanan was the more credible
and reliable witness as to this conversation. The General Counsel contends that
Beckson's testimony proves that Jones M. Blakely's activities on behalf of the
Union motivated the respondent in requesting G. F. Blakely to vacate his
house." The General Counsel also offered undisputed evidence to the effect that
several houses were vacant at or about the time of the respondent's notifi-
cation to G. F. Blakely. However, James Sloan, the respondent's personnel man-
ager , testified credibly and without contradiction that although houses might
appear to be vacant for 2 or 3 days, actually they were in a state of renovation
or were being cleaned up for the employees to whom they were assigned. Sloan
further testified credibly and without contradiction that during December of
1946 and January of 1947 there was a critical shortage of the respondent' s houses ;
that the respondent with few exceptions had a policy of not assigning a company
house to an employee unless two or more persons from that employee's family
worked for the respondent ; and that Belle Crawford, a sister of Moorhead,
was required by the respondent to give up her house at some time in 1916 because
of this policy.
Accordingly, upon the basis of the foregoing and upon the entire record, the
undersigned concludes and finds that the respondent did not interfere with, re-
strain, and coerce its employees, as alleged in paragraph 7 of the complaint.
3. Respondent's motion to dismiss the complaint under Section 10 (b) of the
Amended Act
The respondent in its answer affirmatively alleges as a defense that the com-
plaint was issued contrary to and in violation of the limitations contained in
Section 10 (b) of the Amended Act and that the proceeding is barred. At the
hearing respondent moved to dismiss the complaint upon this ground.
In connection with this contention of the respondent, the record in the case
discloses the following facts :
The original charge, filed with the Board on or about November 1, 1946, com-
plained, inter alia, that Jones M. Blakely was discharged on or about October
15, 1946, because of his membership in and activities on behalf of the Union. A
copy of this charge was not mailed to respondent until June 26, 1947. An
amended charge was filed by the Union on February 13, 1948, and a copy was
mailed to the respondent under date of February 26, 1948. The amended charge
complained, inter alia, that the respondent discharged Jones B. Blakely on or
36 Before this conversation the respondent had permitted Beckson to retain her house
although she had separated from her husband and he was no longer employed by the
respondent. This action was contrary to the respondent's policy, as will be hereinafter
discussed . There is no other testimony or evidence in the case concerning an election
involving the Union.
IT The record discloses that Jones M. Blakely continued his activities on behalf of the
Union at the respondent 's plant after his discharge and that the respondent had knowledge
of such activities.
829595-50-vol. 81-90
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
abopt October 15, 1946, because of his membership in and activities on behalf of
the Union, and because he engaged with other employees in concerted activities
for the purposes of collective bargaining and for other mutual aid and protection.
Section 10 (b) of the Amended Act provides in part as follows:
... No complaint shall issue based upon any unfair labor practice occur-
ring more than six months prior to the filing of the charge with the Board
and service of a copy thereof upon the person against whom such charge is
made. . . .
Section 104 of the Amended Act provides that :
The amendments made by this title shall take effect sixty days after the date
of enactment of this Act... .
The Amended Act was passed on June 23, 1947, and pursuant to Section 104
thereof it became effective on August 22, 1947.
From holdings of the Federal Courts it would appear that Section 10 (b) of
the Amended Act imposes no limitation upon the issuance of complaints based
upon charges filed after the effective date of the Act and complaining of alleged
unfair labor practices committed more than 6 months prior to such filing, pro-
vided that such charges are filed and served within 6 months after the Amended
Act became effective. United States v. St. Louis, etc., R. Co., 270 U. S. 1; Fred
Smartley, Jr. v. Pa. Sugar Co., 108 F. (2d) 603 (C. C. A. 4) ; Sohn v. Waterson,
84 U. S. 596.
Therefore, without considering the original charge in the instant proceeding,
it appears that Section 10 (b) of the Amended Act constitutes a bar since,
although the amended charge was filed within the 6-month period, a copy of
the amended charge was not served upon the respondent until February 26, 1948,
or after the expiration of the 6-month period. However, the original charge was
filed and served within the specified time, and was not materially different from
the amended charge, excepting that the latter complained that Blakely was dis-
charged not only for his activities on behalf of the Union but also because of his
concerted activities with other employees. Accordingly, the undersigned denies
the respondent's motion to dismiss the complaint upon this ground.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent discriminatorily discharged Jones M. Blakely
because of his concerted activities with other employees, it will be recommended
that it cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act and the Amended Act. The undersigned will
therefore recommend that the respondent offer him full and immediate rein-
statement to his former or substantially equivalent position 18 without prejudice
11 In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position wher-
ever possible, but if such position is no longer in existence, then to a substantially equiva-
lent position." See Matter of The Chase National Bank of the City of New York, San Juan,
Puerto Rico, Branch, 65 N. L. R. B. 827.
JOANNA COTTON MILLS COMPANY 1413
to his seniority or other rights and privileges and make him whole for any loss
of pay he may have suffered by reason of such discrimination by payment to him
of a sum of money equal to that which he normally would have earned as wages
from the date of his discriminatory discharge to the date of the offer of reinstate-
ment , less his net earnings 1B during such period.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. United Textile Workers of America, A. F. L., is a labor organization within
the meaning of Section 2 (5) of the Act and the same section of the Amended Act.
2. By discriminating in regard to the hire and tenure of employment of Jones
M. Blakely, the respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (3) of the Act and Section 8 (a) (3) of the
Amended Act.
3. By such unfair labor practices the respondent has interfered with , restrained,
and coerced its employees in the exercise of the rights guaranteed in Section 7
of the Act and the same section of the Amended Act, thereby engaging in unfair
labor practices within the meaning of Section 8 (1) of the Act and Section 8 (a)
(1) of the Amended Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act and the same
section of the Amended Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent , Joanna Cotton Mills Company,
Goldville, South Carolina , its officers , agents and assigns, shall :
1. Cease and desist from :
(a) Interfering with, restraining , or coercing its employees , by discharge or
otherwise , in the exercise of the rights to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection , as guaranteed
in Section 7 of the Act and the same section of the Amended Act :
2. Take the following affirmative action which the undersigned finds will effec-
tuate the policies of the Act and the Amended Act :
(a) Offer to Jones M. Blakely immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority or other
rights and privileges in the manner herein provided in "The remedy" ;
(b) Make whole , in the manner herein provided in "The remedy" Jones M.
Blakely for any loss of earnings that he may have suffered by reason of the
respondent 's discrimination against him;
(c) Post at its plant in Goldville, South Carolina, copies of the notice attached
hereto marked "Appendix A." Copies of the notice , to be furnished by the Regional
Director for the Tenth Region , after being duly signed by the respondent 's repre-
sentative , shall be posted by it immediately upon receipt thereof and maintained
by it for sixty (60) consecutive days thereafter, in conspicuous places, including-
all places where notices to employees are customarily posted . Reasonable steps
shall be taken by the respondent to insure that said notices are not altered,
defaced, or covered by any other material ;
19 See Matter of Crossett Lumber Company , 8 N. L. R . B. 440 , 497-498.
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for the Tenth Region in writing , within ten
(10) days from the date of the receipt of this Intermediate Report, what steps
the respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10 ) days from the date
of the receipt of this Intermediate Report, the respondent notifies the 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.
It is further recommended that paragraph 7 of the complaint be dismissed.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board , Series 5, effective August 22 , 1947, 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 , Rochambeau Building , Washington 25, D. C., an original and six
copies of a statement in writing setting forth such exceptions to the Intermediate
Report or to any other part of the record or proceedings ( 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 Intermediate Report.
Immediately upon the filing of such statement of exceptions and/or briefs, the
party filing the same shall serve a copy thereof upon each of the other parties.
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, conclusions
and order , and all objections and exceptions thereto shall be deemed waived for
all purposes.
JOHN H. EADIE,
Trial Examiner.
Dated April 26, 1948.
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, and of the Labor Management Relations Act, 1947, we hereby
notify our employees that :
WE WILL NOT in any manner interfere with, restrain , or coerce our em-
ployees in the exercise of their right to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection.
WE WILL OFFER to the employees named below immediate and full rein-
statement to their former or substantially equivalent positions without
prejudice to any seniority or other rights and privileges previously enjoyed,
JOANNA COTTON MILLS COMPANY 1415
and make them whole for any loss of pay suffered as a result of the
discrimination.
Jones M. Blakely
JOANNA COTTON MILLS COMPANY,
Employer.
By -------------------------------------
(Representative ) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced or covered by any other material.