Joy Silk Mills, Inc.

National Labor Relations Board - Board Decisions

Sep 13, 1949

85 N.L.R.B. 1263 (N.L.R.B. 1949)

In the Matter of Joy SILK MILLS, INC., and UNITED TEXTILE WORKERS
or AMERICA, A. F. L.
Case No. 10-CA-54,5.-Decided September 13,1949
DECISION
AND
ORDER
On May 27, 1949, Trial Examiner George A. Downing 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. Thereafter the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
The Respondent has also requested oral argument, which is hereby
denied, because the record, in our opinion, adequately reflects 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 exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner except insofar as they are inconsistent
with the Decision and Order herein.
1. We agree with the Trial Examiner's finding that the Respondent
has refused to recognize and bargain with the Union within the mean-
ing of Section 8 (a) (5) of the Act 2 However, we disagree with the
Trial Examiner's findings that the refusal took place on and after
October 12, 1948, and that until this date, the Respondent was acting
in good faith in its dealings with the Union.
1 Pursuant to the provisions of Section 3 (b) of the Act , as amended , the Board has dele-
gated its powers in connbetion with this case to a three-member panel [ Members Houston,
Reynolds , and Murdock],
2 Member Murdock concurs in finding the violation of Section 8 (a) (5) solely because
he feels bound by the decisions of the Board in the Cuff-man Lumber and D. H. Hoimeg
cases cited in footnote 5.
85 N. L. R. B., No. 211.
1263
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As more fully set forth in the Intermediate Report, the Union repre-
sented a majority of the employees in the appropriate unit on Sep=
tember 24, 1948, when it made its initial request for recognition.3 The
Respondent refused the regts'st, insisting that the Union prove its
majority status in a Board-o,, ,.ducted election. The Union thereupon
filed a representation petition with the Board. On September 30, at a
conference attended by the Respondent's attorney, a field examiner of
the Board, and the Union's spokesman, the Respondent's attorney indi-
cated that Respondent would agree to a consent election if an investi-
gation proved that the Respondent was subject to the Act's jurisdic-
tion. On October 7, the Respondent gave its consent to an election
which was held on October 19, 1948. However, beginning on October
12, and continuing until the election, the Respondent, as detailed in the
Intermediate Report, engaged in acts of interference and coercion
which made a free election impossible.
We have previously held that an employer may in good faith insist
on a Board election as proof of the Union's majority but that it "unlaw-
fully refuses to bargain if its insistence on such an election is moti-
vated, 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." 4 In cases of this
type the question of whether an employer is acting in good or bad faith
at the time of the refusal is, of course, one which of necessity must be
determined in the light of all relevant facts in the case, including any
unlawful conduct of the employer, the sequence of events, and the time
lapse between the refusal and the unlawful conduct.
In the instant case, the Respondent engaged in unfair labor practices
during the preelection period, the first of its illegal acts having oc-
curred only 5 days after it agreed to a consent election and less than
3 weeks after the Union's initial bargaining request. Under these
circumstances we find, contrary to the Trial Examiner, that the Re-
spondent's insistence upon an election was not motivated by a good
3 We agree with the Trial Examiner ' s conclusion that the telephone call from Jacobs
to Gilbert on September 24, 1948. constituted a request to bargain . However, we disagree
with the Trial Examiner ' s subsidiary finding to the effect that the request was not express
or formal but rather implied or to be inferred from Jacobs ' telephone conversation. Re-
cording to Jacobs ' version of the conversation which was credited by the Trial Examiner,
Jacobs asked Gilbert if he was willing to recognize the Union as the bargaining repre-
sentative of the production and maintenance employees , adding that the Union had been
authorized by these employees to represent them . This testimony , in our opinion , clearly
establishes that the bargaining demand of September 24, was express and we so find.
In its brief , the Respondent contends that the Trial Examiner 's credibility findings with
respect to the telephone conversation between Jacobs and Gilbert on September 24, are
unsupported by the record and moreover are without logic . We do not agree . Further-
more , the importance of observation of witnesses to any finding of their credibility is such
that we will not overrule the credibility findings of Trial Examiners unless they are
clearly erroneous . See Matter of Minnesota Mining and Manufacturing Company, 81
N. L. R. B. 557.
4 Matter of Arteraft Hosiery Company , 78 N. L . R. B. 333.
JOY SILK MILLS, INC. 1265
faith doubt of the Union's majority.-' On the contrary, we are con-
vinced that the real reason the Respondent rejected the Union's request
on September 24, was to gain time within which to undermine the
Union's support. Accordingly, we find that a refusal took place on
September 24, and from that time on, the Respondent refused to bar-
gain collectively within the meaning of Section 8 (a) (5) of the Act as
amended.
2. In its brief, the Respondent contends that a remedial order direct-
ing it to bargain with the Union, would deprive the Respondent of its
right under Section 9 (c) (1) (b) of the Act to petition the Board for
an election. This position is clearly untenable. We have found that
on September 24 when the Union made its bargaining demand, it was
the majority representative of the Respondent's employees in the
appropriate unit. Having refused the Union's request in violation of
the Act, the Respondent cannot now be heard to say that it entertains
an honest doubt as to the Union's majority status, and that until an
election is held, its duty to bargain is suspended."
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, Joy Silk Mills,
Inc., and its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with United Textile Workers
of America, A. F. L. as the exclusive representative of all production
and maintenance employees employed by the Respondent at its Harts-
ville, South Carolina, plant, excluding clerical and office employees,
guards, professional employees, and all supervisors as defined in the
Act;
Under the Trial Examiner 's theory of the case a refusal did not occur until October 12.
In his view , only the events which preceded October 7 , the time the Respondent agreed
to a consent election were relevant to the issue of the Respondent 's motive in insisting
upon an election . As no unfair labor practices occurred during this period , the Trial
Examiner concluded that the Respondent was .acting in good faith when it refused the
Union 's initial request and sought an election . Turning then to the Respondent ' s unfair
labor practices which began on October 12, the Trial Examiner found that this illegal
conduct, standing alone , constituted a refusal to bargain because it demonstrated that
whatever doubts [ the Respondent ] had previously entertained were no longer genuine,
and that it sought to evade its obligation to recognize and to bargain with the Union.
As our decision indicates , we do not subscribe to the Trial Examiner ' s theory of the issue
under discussion . We are of the opinion that the unfair labor practices, because of their
nature and timing , color the Respondent ' s intent on September 24, and support a finding
that the doubt advanced on that day by the Respondent as the reason for refusing to
bargain with the Union , was feigned and advanced in bad faith. See Matter of The Cuffmana
Lumber Company, Inc., 82 N . L. R. B. 296 ; Matter of D. H. Holmes , Ltd., 81 N . L. it. B.
753; Matter of Georgia Twine and Cordage Company, 76 N. L it. B. 84.
6 See Franks Bros. Company V. N. L. R. B., 321 U. S. 702; Matter of People's Motor
Express, Inc., 74 N . L. R. B., 1597 ; Matter of The Cullman Lumber Company, 82 N. L.
it. B. 296.
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist United Textile Workers of
America, A. F. L., or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining or other
mutual aid or protection and to refrain from any or all such activities,
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment as authorized in Section 8 (a) (3) of the Act as guaranteed
by Section 7 thereof.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Textile Work-
ers of America, A. F. L., as the exclusive representative of all its em-
ployees in the above-described unit with respect to wages, rates of
pay, hours of employment, and, if an understanding is reached, em-
body such understanding in a signed agreement;
(b) Post at its plant at Hartsville, South Carolina., copies of the
notice attached hereto and marked Appendix A.7 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 main-
tained by it for sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered by any
other material;
(c) 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..
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, we hereby notify our employees that
WE WILL NOT refuse to bargain collectively with UNITED TExTIL$
WORKERS OF AMERICA, A. F. L., as the exclusive representative of
all employees in the appropriate unit described below.
7In 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 :
"A DECREE-OF THE UNITED STATES COURT,.OF APPEALS, ENFORCING."
JOY SILK MILLS, INC. 1267
WE WILL NOT in any other manner interf ere. with, restrain, or
coerce our employees in the exercise of their right to self -organiza-
tion, to form labor organizations, to join or assist UNITED TExru.E
WORKERS OF AMERICA, A. F. L., or any other labor organization,
to bargain ' collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, and
to refrain from any or all such activities, except to the extent
that such right may be affected by an agreement, requiring mem-
bership in a labor organization as a condition of employment
as authorized in Section 8 (a) 3 of the National Labor Relations
Act.
WE WILL BARGAIN collectively upon request with the above-
named union as the exclusive representative of all employees in
the bargaining unit described herein with respect to rates of pay,
wages, hours of employment, or other conditions of employment,
and if an understanding is reached, embody such understanding
in a signed agreement. The bargaining unit is:
All our production and maintenance employees at our plant in
Hartsville, South Carolina, excluding clerical and office employees
and guards, professional. employees and supervisors as defined
in the Act.
All our employeess are free to become or remain members of this
union, or any other labor organization.
JOY SILK MILLS, INC.,
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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Messrs. Thomas Marshall and Milton 0. Talent, for the General Counsel.
Messrs. Henry J. Fos' and James F. Kenney (Posner, Berge, Fox, and Arent),
of Washington, D. C., for the Respondent.
Messrs. Joseph Jacobs, Dorsey Moseley, and Gordon Finch, of Atlanta, Ga., for
the Union.
STATEMENT OF THE CASE
Upon a first amended charge filed October 29, 1948, by United Textile Workers
of America, affiliated with American Federation of Labor, herein called the union;
the General Counsel of the National Labor Relations Board' by the Regional Di-
I The General Counsel and his representatives are herein referred to as the General
Counsel and the National Labor Relations Board as the Board.
857829-50-vol. 85-81
126$ DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rector for the Tenth Region (Atlanta, Georgia), issued a complaint dated Febru-
ary '24, 1949, against Joy Silk Mills, Inc., of Hartsville, South Carolina, herein
called the respondent, alleging that the respondent had been engaging in and was
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (a) (1) and (5) and Section 2 (6) and (7)_ of the Labor Management
Relations Act, 61 Stat. 136, herein called the Act. Copies of the complaint,
the charge, and the notice of hearing were duly served on the respondent and the
union.
With respect to the unfair labor practices the complaint alleged in substance :
(1) That from on or about September 15, 1948, and since, the respondent, by
its officers, agents, and employees (more particularly by President S. C. Gilbert,
General Manager H. B. Southerland, Plant Superintendent Raymond B. Russell,
and Fred Carpenter), and in violation of Section 8 (a) (1) of the Act, had inter-
fered with, restrained, and coerced its employees in the exercise of their rights
guaranteed in Section 7 by the following acts committed, authorized, instigated,
and acquiesced in by the respondent: (a) interrogating its employees about their
union desires, sympathies, activities, and membership; (b) threatening and
warning its employees to refrain from assisting, becoming members of, or remain-
ing members of the union; (c) promising its employees promotions, better jobs,
and similar benefits if they would refrain from assisting, becoming members of,
or remaining members of the union; (d) spying upon and keeping under sur-
veillance union members and the union activities of its employees; and (e)
soliciting its employees to spy upon and keep under surveillance the union mem-
bers, meetings, leaders, and activities, and to report to the respondent ; and
(2) That respondent on or about September 23, 1948,. and September 24,
1948, and thereafter, and in violation of Section 8 (a) (1) and. (5) of the
Act, i efused to bargain collectively with the union, which since on or about
September 16, 1948, represented a majority of respondent's employees in an
appropriate unit, as the exclusive representative of the employees in such unit.1
By its answer respondent admitted certain allegations of the complaint as
to the nature of its business, as to the union's qualification as a labor organi-
zation,' and as to the appropriateness of the alleged unit, but entered a general
denial of the commission-of any unfaii labor practices 2
Pursuant to notice a hearing was held on March 22, 23, 24, and 25, 1949, in
Hartsville, South Carolina, before the undersigned Trial Examiner designated
by the Chief Trial Examiner. The General Counsel and the respondent were
represented by counsel and the union by representatives. Full opportunity to
be` heard, to examine and cross-examine witnesses, and to introduce evidence
pertinent to the issues was afforded all parties. As the hearing opened the
General Counsel's motion was granted without objection to amend paragraph
K of the complaint to include the name of William J. Outlaw as one of, respond-
ent's officers, agents, and employees by whom it had allegedly committed acts
in violation of Section 8 (a) (1) of the Act.
At the conclusion of the case the General Counsel's motion to conform the
pleadings of the. evidence as to names and dates and such matters as concerned-
the record was granted without objection. The parties were afforded an oppor-
tunity to make oral argument and to file briefs and proposed findings of fact and
conclusions of law. The parties waived oral argument. Briefs have been re-
ceived from the General Counsel and the respondent.
2 Respondent filed simultaneously with its answer its motion for a more definite state-'
meat or bill of particulars, a portion of which motion was granted by the order of the Trial
Examiner dated March 17, 1949. The General Counsel complied with said order by filing
a bill of particulars as the hearing opened.'
JOY SILK MILLS, INC. 1269
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
Respondent is and has been for many years a corporation duly organized
under and existing by virtue of the laws of the State of South Carolina, with its
principal office and place of business at Hartsville, where it is now and has been
continuously engaged in the business of contracting with respect to the processing
of yarn and thread, i. e., the twisting, throwing, and other processing of yarn
and thread. In the course and conduct of its business operations for a period
commencing January 1, 1948, and ending December 31, 1948, which period is
representative of all times material herein, respondent received raw materials
consisting principally of rayon and silk yarn valued in excess of $250,000, 100
percent of which value was purchased, delivered, and transported in interstate
commerce from and through States other than the State of South Carolina, to its
plant in Hartsville. During said period respondent processed finished products
consisting principally of rayon and silk thread valued in excess of $250,000,
100 percent of which value was sold, shipped, and transported in interstate com-
merce to and through States other than the State of South Carolina, from its
said plant.
Respondent conceded for the purposes of this proceeding that it is engaged
in commerce within the meaning of the Act, and the undersigned finds that it
is so engaged.
YI. THE LABOR ORGANIZATION INVOLVED
United Textile Workers of America, affiliated with the American Federation of
Labor, is a labor organization admitting to membership employees of respondent.
III. THE UNFAIR LABOR PRACTICES •
1. The setting; the main events; the issues
Respondent operated a small but modern plant located at Hartsville, South
Carolina. It normally employed from 50 to 60 employees, divided among 3,
shifts.' Its managing officers were S. C. Gilbert, president, and H. P. Souther-,
land, general manager, and its. plant superintendent was Raymond Russell.
Respondent concedes that they and Wallie G. Cassidy, foreman, and Elsie Clyde
McCaskill, forelady, were supervisors within the meaning of the Act.
Gilbert and Southerland occupied separate offices at the front of the plant
building. A third office adjoining theirs and also adjoining the reception room
or office lobby was occupied by K. F. (Fred) Carpenter, respondent's bookkeeper
and sole clerical employee, whose status will. later be discussed in detail. The.
main,entrance into the offices and plant opened with the office lobby, adjacent
to Carpenter's office, but the employees entered the plant by, a separate door,
which opened into the canteen.
Concerted activities arose spontaneously among the employees on the after
noon of September 15, 1948, as a result of the displacement by respondent of
head foreman, Zim Byrd, whom the employees on the first shift requested Gilbert
to reinstate. When Gilbert did not adjust the grievance to their satisfaction,
the employees began that evening the formation of a union. They obtained a
8 The pay roll ending September 18, 1948, rontained the names of 52 employees. They
were divided approximately as follows : 25 on first shift, 7 a. m. to 3 p. M. ; 17 on second
shift, 3 p. m. to 11 p. m. ; and 10 on the third shift, 11 p. in. to 7 a. m.
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supply of membership cards from the president of another of the union's locals
and set about signing up members outside the plant as the third shift reported
for work and as the second shift left.
The next morning the first shift (with possibly three or four exceptions) did
not report for work but congregated outside the main entrance and continued the
membership campaign. At Gilbert's request the leaders conferred with him in
the plant around 9: 30 a. in. They renewed their demand for the reinstatement
of Byrd and added for the first time a demand for paid vacations. Gilbert agreed
to neither, but in a discussion with a single leader (Bessie Chapman) thereafter,
he promised that if the employees would immediately come back to work (it was
then about noon) he would pay them for a full day's work and grant the request
for paid vacations. The employees did not accept the offer, and the walk-out
continued through the 16th and 17th (Thursday and Friday). Thirty-seven em-
ployees had signed membership cards through the 16th and one more signed
on the 17th.
On Saturday, a nonwork day, Helen Watson and Bessie Chapman, two of the
leaders, sent a message to Gilbert that the employees would report to work on
Monday. On Sunday evening the leaders met Gilbert at the plant at his request
to reach an understanding of the basis on which the employees would return
to work. The employees' grievances were again fully discussed and Gilbert
again promised paid vacations.'
Work was resumed on Monday, all shifts reporting as usual.
In the meantime the signed membership cards had been transmitted to the
union's State Representative Earl R. Britton, and by him to its Southern Di-
rector Joseph Jacobs. On Friday morning, September 24, Jacobs called Gilbert
long distance from Atlanta and made a demand (according to the General Coun-
sel's contentions) for recognition and a request to bargain. When Gilbert did
not immediately grant the demand or agree either to a consent election or a
cross-check, Jacobs immediately filed a representation petition with the Board's
Atlanta Regional Office.
In a conference held on September 30, respondent tentatively agreed to a con-
sent election and all arrangements therefore were made. Its tentative consent
was shortly made final and the election proceeded as per plan and without
postponement on October 19. The union lost the election 32 votes to- 16, 9 addi-
tional votes being challenged.
Evidence was offered by the General Counsel that on October 12, 18, and 19,
respondent committed various unfair labor practices which interfered with the
free choice of a bargaining representative. Respondent denied these.
On October 25, the union filed its protests and objections to the conduct of the
election which were sustained in certain particulars by the Board's Regional
Director, who on January 25, 1949, in his report thereon, ordered the election set
aside and directed another election. However, on March 3, 1949, the union, with
the approval of the Regional Director, withdrew its representation petition
without prejudice.
The main issues presented by the evidence and argued by the briefs are (1)
whether the respondent committed certain acts of interference, restraint, and
coercion between September 15 and October 19, both inclusive;' (2) whether the
union made a request to bargain either in the telephone call on September 24 or
at the conference on September 30; and (3) whether the respondent refused to
* There was no discussion of recess periods, of rotation of shifts, of wages, or of the
union.
' Involved here also are subsidiary issues whether certain of the acts were committed
by respondent 's supervisors or agents.
JOY SILK MILLS, INC. 1271
bargain on those dates or since . Other issues concern whether- pre-trial prepara-
.tions of respondent 's counsel also constituted an unfair labor practice and
whether a single admitted inquiry of an applicant for employment by respondent's
plant superintendent since the election was coercive.
The evidence concerning alleged acts of interference , restraint , and coercion
will be considered separately for the period prior to September 30 (when re-
spondent consented to an election). For the period from September 30 to October
19, it will be considered in conjunction with the question of the alleged refusal
to bargain , to which it relates.
2. Alleged interference , restraint , and coercion prior to September 30
It is difficult to relate the evidence to the particular acts which the General
Counsel charges to the respondent during the period prior to September 30. The
bill of particulars charges that Gilbert, on September 16, engaged in "interroga-
tion" and on September 19 he "threatened and warned" employees , and that
Carpenter, on September 15, also "threatened and warned" employees to refrain
from assisting, becoming members of , or remaining members of the union.'
The evidence establishes none of these allegations . Gilbert was cross-examined
on the point whether he inquired who was the " organizer" of the group during
the conference on the 16th, but he and Soutberland denied that he made any such
inquiry and there is no evidence that he did so. Indeed, the evidence is not in
conflict that throughout the conferences on September 15, 16, and 19, no reference
was made by participants on either side to "union " or "union activities ." There
is also no evidence that Gilbert on September 19, made any threats or issued any
warnings. Nor, even assuming the General Counsel intended to charge Gilbert
with promising benefits to refrain from union activities, does the evidence sustain
such a charge during the period now under consideration . It shows only that
he partially acceded to the demands of his employees ( made during their con-
certed activities).to the extent of agreeing to grant a paid vacation:`
The evidence similarly does not establish that Carpenter, on September 15,
threatened and warned employees in connection with their union activities.
It does establish that on that date he did learn of the nature of those activities
(and through him the respondent did also).8 Thus, on the night of September
15, the leaders in the movement to organize a union had gone to the plant and
had begun signing up members as the third shift reported for work and as the
second shift left. They operated mainly from Watson's car or Chapman's car
parked on or near the parking lot in front of the plant. There is testimony that
Elsie Clyde McCaskill (now conceded by respondent to be a supervisor) passed
by and saw them on her way into the plant, but there is no evidence that she
learned they were actually organizing a union at the time. A few moments
later Carpenter came out of the plant and spoke to the group, inquiring what
they were trying to do by keeping the girls from coming into the mill on the
third shift and why they didn't go home and leave the second shift alone. There
is no evidence that until Carpenter approached and put his inquiry he had any
8 Allegations that Outlaw also engaged in interrogation on the 20th are disposed of
infra, on the issue of Outlaw ' s status as a supervisor . There is no allegation in the plead-
ings and no contention in argument or briefs that any acts of Wallie G . Cassidy ( admittedly
a supervisor ) or of Wilmouth ( respondent ' s local attorney ) constituted interference.
7 Though the employees may, by gathering together to present their demands, have con-
stituted themselves a "labor organization " within the meaning of the Act ( Matter of
Gullett Gin Company, Inc., 83 N. L. R. B. 1, and cases cited in footnote 3), Gilbert's
granting of a portion of their demands certainly cannot be said to have constituted inter-
ference with their rights to organize and to bargain collectively,
8 Carpenter ' s status as respondent ' s agent is resolved infra, page 13.
1272 DECISIONS OF . NATIONAL LABOR RELATIONS BOARD
knowledge that the employees were actually engaged in organizational activities,
though it is found that Carpenter did then learn of the nature of their activities.
It is therefore concluded and found that respondent did not, during the period
from September 15 to 30, both *inclusive, engage in acts which constituted inter-
ference, restraint, and coercion e
3. The refusal to bargain ; interference , restraint , and coercion
a. The appropriate unit; the representation by the union of a majority therein
It was stipulated by the parties and is hereby found that all of the production
and maintenance employees of the respondent at its plant in Hartsville, South
Carolina, except for clerical and office employees and guards, professional em-
ployees and supervisors as defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9 (b) of
the Act.
It is also found that on September 16, 1948, a majority of respondent's em-
ployees in said unit had designated and selected the union as their representative
for the purposes of collective bargaining with the respondent. I therefore find
that on September 16, 1948, the union represented a majority of respondent's
employees in the appropriate unit, and that said majority continued to the time
of the election on October 19. The question whether such representative status
continued thereafter is disposed of in Section e, infra.
B. The requests to bargain
The events
Jacobs testified that on Friday morning, September 24, he called Gilbert from
Atlanta, informed him he was calling to see whether the respondent would
recognize the union as the collective bargaining agent for the production and
maintenance employees at the plant because the union had been authorized to
represent them. Gilbert replied that he wished an opportunity to consult his
attorney and added that he thought the matter of union representation had been
settled in the former election.10 Jacobs explained that the earlier election was
more than a year ago and in any event the union had a right to ask for collective
bargaining rights at any time if the respondent did not object. Jacobs also
explained that instead of having an election they might agree on a cross-check
of the membership cards by some impartial person to determine whether the union
in fact had a majority and if so they could stipulate for the union to be recognized.
Gilbert stated he preferred to let the Board handle it, and Jacobs then inquired
B The sharp issue which developed at the hearing as to whether respondent had knowl-
edge prior to September 24 of the fact that the employees were organizing a union becomes
an immaterial one in the light of this finding . However, it is found that respondent did
obtain knowledge of that fact as a result of Carpenter ' s acts the night of the 15th, as
well as through its supervisor , Wallie G . Cassidy to whom the General Counsel's witnesses
attributed references to union activities . Indeed, with a plant and an organization as
small as respondent ' s, it is difficult to imagine how respondent could have escaped knowl-
edge of the nature of the employees' activities in view of the group activities on Wednes-
day night and on Thursday and Friday. See N. L. R. B. v. Abbott Worsted Mills, 127
F. 2d 438, 440 ( C. A. 1) ; Matter of Quest -Shop Mark Brassiere Company, Inc., 80
N. L. R. B . 175; Matter of Firestone Tire and Rubber Company , etc., 62 N. L. R. B.
1316 . The finding that it did have such knowledge is also supported by the inquiry of
respondent's local counsel to Chapman on the 19th , while on respondent 's business , "What's
this I hear about a union ?" Though General Counsel does not charge the respondent
with responsibility for this inquiry , it clearly appears to have emanated from information
which the attorney had received from the respondent.
10 Which had been lost by the union, In October or November 1946.
JOY SILK MILLS, INC. 1273.
his attitude as to consent election. Gilbert still indicated his preference for a
regular routine handling of the matter by the Board, and Jacobs concluded by
stating in that case he would proceed immediately by filing his petition. .
Gilbert's testimony was that Jacobs told him only that he had enough em-
ployees to petition the Board for an election and would do so unless Gilbert would
agree to a consent election; that he informed Jacobs that he preferred not to
reach a decision until he got in touch with his attorney. He denied that Jacobs
requested a conference for the purpose of bargaining, that Jacobs actually made
any request or demand relating to bargaining, and that Jacobs or anyone else
at any time ever requested him to bargain.
There is other evidence in the record which assists in resolving the foregoing
conflict. Jacobs testified that in a conference on September 19, with Britton, he
requested Britton to make a formal ,demand to bargain. Pursuant thereto
Britton, on September 23, wrote Gilbert (mailing Jacobs a copy by air mail
special delivery) as follows:"
I have more than 30 percent of the employees of the Joy Silk Mills, Inc.,
who have signed cards authorizing the United Textile Workers of America
to bargain for themselves under the Labor Management Relations Act of
1947. As a representative of the American Federation of Labor, the United
Textile Workers of America, one of our affiliated International Unions, I
am proceeding to petition the National Labor Relations Board to order an
election in the plant of the Joy Silk Mill. Should you be willing to have a
consent election, I believe it will be to the advantage of all concerned.
May I have as early a reply as possible?
Jacobs testified that he received a copy of the letter on the evening of the 23rd,
and.recognizing it was not adequate as a formal demand for recognition as a
bargaining agent, he called Gilbert the next morning for the purpose of perfecting
such a demand.
If Gilbert's recollection of the conversation be accepted, Jacobs' call would
appear to have been pointless and without purpose since Jacobs gave him no in-
formation which was not contained in Britton's letter nor any which Gilbert would
not have obtained as a result of the filing of,a petition with the Board. Signifi-
cantly, Gilbert's version of Jacobs' conversation actually constitutes an approxi-
mate summary of Britton's letter; and the undersigned concludes that Gilbert's
recollection of the details of the telephone call was faulty and that in attempting
to testify thereto he may unconsciously have substituted his better recollection
of the contents of the letter which. remained in respondent's possession up to the
time of the hearing. In view of Jacobs' position with the union and his obvious
experience in such matters, it is inconceivable that he would have hastened to
call Gilbert long distance to repeat only what was in Britton's letter, nor was
there any reason why with 38 signed membership cards in his possession out of
an estimated unit of 45 Jacobs would have hesitated to claim a majority instead
of merely enough to petition for an election, as contended by Gilbert.
The undersigned therefore finds that the conversation was substantially as
testified to by Jacobs.
Immediately following the conclusion of the call Jacobs prepared and filed with
the Board's Regional Office in Atlanta, a representation petition which alleged
among other things that 38 employees of a unit of 45 supported the petition,
that the union had notified the employer of its claim that a question concerning
"Incidentally , the evidence establishes that Gilbert did not actually receive the letter
until after the call from Jacobs . Neither he nor Jacobs made any reference to the letter
during the telephone conversation.
1274 DECISION, S OF NATIONAL LABOR RELATIONS BOARD
representation had arisen, and that the employer had failed to recognize the
union. He also filed with the Board the 38 signed membership cards, all of which
bore the following legend :
I, the undersigned, an employee of Joy Silk Mills, Inc., hereby accept mem-
bership in the United Textile Workers of America, (AFL), and authorize its
representatives to bargain for me in all matters pertaining to my wages,
working conditions, Union obligations and all other conditions of employment.
Later in the afternoon Paul M. Patterson, field examiner of the Board, also
called Gilbert and inquired whether he would agree to a consent election. Gilbert
again refused, stating that he wished to consult his attorney first.
On September 30, Jacobs participated in a conference in respondent's office
with Patterson, Southerland, and Henry J. Fox, respondent's attorney, to work
out, if possible, arrangements for a consent election. Jacobs suggested to Fox
that the union would be willing to agree to a cross-check of membership cards
rather than an election. Fox declined the suggestion stating "There was a ques-
tion of going into an election,"^ and that there was a question in his mind con-
cerning interstate commerce and he wanted to check into it and give a written
opinion. Later, near the end of the conference, Jacobs stated to Fox, "Of course,
we could obviate all of this if we would set down and get a contract." There is
no record that a reply -was made. The foregoing findings are based on Jacobs'
testimony.
Fox did not testify, but respondent offered Southerland's testimony and also
offered in evidence Patterson's letter of October 1, 1948, which contained a
summary from his notes made at the conference. Jacobs admitted that the
account in the letter, though not in complete detail, was substantially correct.
The letter corroborates Jacobs' offer of a cross-check and is not otherwise in-
consistent with Jacobs' testimony. Nor is Southerland's testimony inconsistent
with the foregoing findings. He did answer negatively a question whether
either Jacobs or Patterson made any mention concerning a demand made by
the union as to bargaining with the company ; but that question clearly im-
plied an express demand, and his denial must therefore be construed as a
denial that any express mention or express demand was made. Jacobs' testi-
money does not establish that he made any express request to bargain or that
he referred to any previous demand.
The conference concluded with respondent having tentatively agreed to a
consent election subject to Fox's satisfying himself and respondent on the
question concerning commerce. Thereafter, upon receipt of his advice that
the Board had jurisdiction, respondent signed the consent election agreement,
and the election was held on October 19, under the arrangements which had
been agreed upon in the conference.
.
Concluding findings
Respondent's contention is that no request to bargain was ever made on
behalf of the union. Of course, if this were so the complaint that respondent
has unlawfully refused to bargain cannot be sustained. N. L. R. B. v. Colum-
bian Enameling d Stamping Company, Inc., 306 U. S. 292, 297. If there were
anything in the Act which required that a demand to bargain be express or
formal (which there is not) '3 it must be held under the evidence above sum-
12 The significance of this statement does not appear.
33 Section 8 (a) (5) of the Act provides that it shall be an unfair labor practice for an
employer "to refuse to bargain collectively with the representatives of his employees , subject
to the provisions of Section 9 (a)."
JOY SILK MILLS, INC. 1275
marized that there was no demand to bargain. However, it is established by
Board decisions that no formal demand is necessary,14 and it also appears that
a demand though not express may be inferred or implied from the circum-•
stances of communicating to a respondent the fact that the union is the repre-
sentative of a majority of the respondent's employees in an appropriate unit.
Matter of Unique Ventilation Company, Inc., 75 N. L. R. B. 325; Matter of Prigg
Boat Works, 69 N. L. R. B. 97; Matter of Van De Kamps Holland-Dutch Bakers,
Inc., 56 N. L. R. B. 694, 707, 711.
The question therefore arises whether under the facts herein found, a request
to bargain is to be implied or inferred from Jacobs' telephone conversation
with Gilbert on September 24, and from his subsequent conversation with Fox
during the conference on September 30.
It is clear that Jacobs made a demand for recognition since he informed Gilbert
that the union had been authorized by the employees to represent them and he
inquired whether the respondent would recognize the union as the collective bar-
gaining agent of the unit consisting of the production and maintenance em-
ployees. Respondent's contention that at no time did Jacobs claim to represent
a majority of the employees is rejected.16 The claim of a majority is clearly
implicit throughout the conversation. First, there was the statement that the
employees had authorized the union to represent them, and this was followed by
a request for recognition. Then there was reference to an election and Jacobs
attempted to persuade Gilbert to agree to the alternative procedure of a cross-
check of the membership cards to determine whether the union in fact had a
majority. These circumstances clearly implied the union's assertion that it
represented a majority of the employees in the unit.
Respondent also argues that the Britton letter, Jacobs' call and Patterson's
call, considered together, demonstrate that what the union was seeking was a
certification by the Board because of the many advantages which would accrue
to a labor organization therefrom," and that all of those communications sought
only to induce respondent to consent to an election in order to expedite such cer-
tification. Certainly, there is no intimation in Jacobs' testimony that he was in-
terested in certification merely for the sake of certification ; indeed any such sug-
gestion is negatived by his offer to consent to a cross-check " (which is of course
outside the scope of the Board's present procedure in representation cases).
It is therefore concluded and found that the telephone call from Jacobs to Gil-
bert on September 24, constituted a request to bargain. It is similarly con-
cluded and found that although Jacobs made no express demand to bargain at
the September 30 conference, such a demand was clearly to be implied from his
offer to Fox to agree to a cross-check in lieu of an election and his offer to "ob-
viate all this" if the union could get a contract.
14 Telephone calls have been held sufficient under certain circumstances . Matter of A. J.
Showalter Company , 64 N. L. R. B. 573, 576 , footnote 1 ; Matter of Van De Kamps Holland-
Dutch Bakers , Inc., 56 N. L. R. B. 694, 711.
11 Respondent 's attempts to attach significance to Britton's claim in his letter of September
23 that cards had been signed by "more than 30 percent" of the employees . This was
obviously intended to indicate that the union was able to qualify under the Board ' s adminis-
trative rule contained in Section 202.17 of its Statements of Procedures (12 Fed. Reg. 5651,
as amended 13 Fed. Reg . 4871) for an investigation of its proposed representation petition.
Furthermore , Jacobs explained that he made his call to Gilbert because he did not consider
Britton's letter adequate as a formal demand for recognition as a bargaining agent.
i8 Citing Matter of General Box Co., 82 N. L. R. B. 678, decided April 1, 1949.
11 The reiteration of that offer at the September 30 conference , plus the suggestion to Fox
that the election could be dispensed with if the union could get a contract , emphasizes this
conclusion.
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. The alleged refusals to bargain on September 24 and 30
The General Counsel contends that Gilbert's insistence during the Jacobs tele-
phone conversation on a "routine handling" of the union's proposed representa-
tion petition, his refusal to consent to an election, and his refusal to consent to
a cross-check constituted a refusal to bargain because such position was not taken
in good faith and because the respondent did not entertain a bona fide doubt as to
the union's representation of a majority of the employees.' A similar contention
is made as to respondent's refusal at the September 30 conference to agree to
a cross-check of membership cards in lieu of an election.
It is true, as the respondent points out, that an employer may in good faith
insist upon a Board conducted election to establish the union's status as the
collective bargaining representative ; but the employer cannot in every case dis-
regard a demand for recognition simply because the union can file or is filing
a petition for an election. There are other ways of proving a majority, including
an agreement for a cross-check. An employer is not bound to accept that
method or any other specific method, but he must at least make a reply to a
demand for recognition and a proposal to submit proof of majority status, or
he must take some other action which will furnish a basis for evaluating his
good faith.
The determination of good faith depends of course upon the facts of the par-
ticular case. Among factors which have been considered significant are the
employer's resort to or abstinence from dilatory tactics, his willingness or un-
willingness to consent to an election, the sequence of the events, and the lapse
of time between the refusal and the commission of any unfair labor practices.
It can generally be said that the evidence must show that the employer had
already created an atmosphere of unfair labor practices at the time he declined
to bargain or. had immediately or shortly embarked upon such a course of unfair,
labor practices that it may reasonably be assumed he intended to frustrate col-
lective bargaining at the time he refused to bargain. See Matter of Arteraft.
Hosiery Co., 78 N. L. R. B. 333; Matter of John Deere Plow Co., 82 N. L. R. B. 69.
In the present case the evidence establishes that though refusing to recognize
the union until the representation question was settled by a Board election, re-
spondent engaged in no dilatory tactics whatsoever but cooperated in disposing
of the matter expeditiously by agreeing to a consent election. Respondent met
with the Board's representative and Jacobs less than 1 week after the petition
was filed and gave its consent to an election. Furthermore, the election was held
less than 3 weeks after that meeting and less than 1 month after the union's
original demand for recognition, without a single request for a delay or post-
ponement.
Jacobs' call came a week after the peak of the earlier concerted activities
and after the employees had voluntarily returned to work. And though it has
been found that respondent had knowledge of the fact, during the week of Sep-
tember 15, that the employees were attempting to organize a union," it com-
mitted no act of interference therewith. Indeed, the respondent might have
assumed from the conference on the night of the 19th, and the return to work-on
Monday, that it had satisfactorily adjusted the employee grievances and that
the employees had abandoned their efforts to organize a union.
Under these circumstances Gilbert could well have doubted Jacobs' claim of
a majority and his right to demand recognition and could justifiably have indi-
cated, in the light of the suddenness of the call and the apparent "high pressur-
ing," that he wanted time to consult his attorney and would therefore prefer the
11 It had no knowledge , however , of the extent to which the campaign had been successful.
JOY SILK MILLS, INC. 1277
case to follow "routine" Board procedure. Furthermore, Gilbert was under the
misapprehension that the representation question had been settled in the earlier
proceedings. Though Jacobs endeavored to correct that misapprehension, Gil-
bert was entitled, pf course, to seek the verification of his counsel ; and there is
no indication from the evidence that his expressed wish to take the matter up
with his counsel was motivated either by bad faith or by the desire to gain time
to undermine the union's asserted majority.
Neither do the events at the September 30, conference establish a refusal to
bargain. There, according to Patterson's account, concurred in by Jacobs, the
atmosphere was one of the fullest cooperation. There the respondent readily
gave its tentative agreement to a consent election, reserving only a brief oppor-
tunity for its counsel to clear up a "slight doubt" in his mind as to whether,
because of a recent change in the nature of respondent's business, its operations
still affected interstate commerce. Patterson's account, corroborates Jacobs'
offer of a cross-check, but it also alludes to two reasons why respondent finally
did not consent : respondent "tended to question" the authenticity of the cards,
and although the examiner agreed to make the check if the company consented,
the suggestion was not insisted upon because there was not then sufficient time
available in which to have the check made.
Respondent thereafter promptly resolved its doubt on the commerce question
and gave its final consent to the election prior to October 7.
It is concluded and found that the evidence does not establish that down to
that time a refusal to bargain had occurred. The question remains whether such
a refusal occurred as a result of respondent's subsequent acts, the evidence of
which is now summarized.
d. Interference, restraint, and coercion
The events
Subsequent to the telephone call of September 24, Gilbert, acting on the advice
of counsel, had immediately instructed respondent's supervisors not to question
employees about the union or union activities, not to threaten or promise, not
to spy on them in -any manner, and not to have anything to say about their
activities in the mill. On October 7, he posted a notice informing the employees
of the election and of their right to vote freely therein. Those and the other
statements in the notice plainly qualified as free speech.
Down to that time there is no evidence that respondent was at all concerned
about the outcome of the election or that it had endeavored in any manner to
interfere with the choice of a bargaining representative by its employees. How-
ever, there is evidence which indicates that some time between October 7 and
October 12 respondent's attitude of impartiality and unconcern underwent a
reversal. Such change is reflected in a series of acts and statements by respond-
ent's managing officers, agents, and supervisors, the. evidence of which is sum-
marized under the name of respondent's representative to whom the particular
acts are attributed :
(1) S. C. Gilbert
On October 12, 1948, the employees were separately assembled on each of ,the
three shifts and read a lengthy written statement prepared by Gilbert. Similarly
on October 18, two separate lengthy statements were read on each shift's Though
Southerland and Russell were present on all the occasions, Gilbert selected
Carpenter to read the statements for him. Though the statements in the main
's On the second and third shifts the two statements were read as one.
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clearly fall within the limits of permissible free speech certain portions are
claimed by the General Counsel to constitute interference, restraint, and coercion.
Specifically, objection was made to the following portions of the statement of
October 12:
(a) As soon as equipment for the canteen which has been ordered arrives,
you will be given a rest period at the Company's expense so that you may eat
your lunches and relax in comfort during your shift.
(b) If our prices are too high, or if the quality of our service is insufficient,
we lose customers. Similarly, if our'wages are too high, we lose money and
obviously couldn't stay in business. Thus, it is apparent that what we can
pay is limited by factors beyond our control.
(c) You will get no less or no more regardless of whether there is a
union here. We will always do the best to the utmost of our ahility.
The General Counsel also objects to the following portions of the first statement
read on October 18:
(a) We are giving you a'paid vacation.
(b) I want to tell you in all sincerity that no matter how the election goes
the time will never come when you will have to join the union to keep your
job in this Company or improve your working conditions or to have equal
opportunities with anyone else.
The effect of these statements is considered under Concluding Findings, infra,
this section.
Bessie Chapman testified that after the reading of the statements on the 18th,
she question Gilbert about shift rotation, a subject not mentioned therein, and
though he did not expressly promise rotation he stated that rotation would be
started if a ,majority of the employees by a vote indicated their desire for it. Her
testimony is corroborated by other witnesses, including Russell, who admitted
telling Vonceil Holloman that Air. Gilbert had promised a vote on shift rotation
and so far as he knew the mill would be guided by the result.
(2) K. F. (Fred) Carpenter
Preliminary to summarizing the evidence of Carpenter's acts and statements,
the issue of his status as respondent's agent will be resolved.
Carpenter was respondent's bookkeeper and timekeeper and one-man office
force. He had no assistants, and no employees were subject to his supervision and
direction. He had no authority to hire or fire or to recommend either. The
General Counsel contends, however, that under the circumstances disclosed by
the evidence Carpenter was respondent's agent, having been held out as such
by respondent, -and that respondent is responsible for the. acts and statements
attributed to him in the record.
The physical lay-out of the offices and plant and the evidence concerning
the operation of a closely affiliated company, the Premier Knitting Mills, are of
first significance. It has been shown that Carpenter occupied one of respondent's
three offices, the other two of which were occupied by Gilbert and Southerland,
respondent's managing officials. Indeed, respondent termed Carpenter's office
its "general office" and kept in it, not' only its ordinary books and pay-roll
records, but also its corporate books and records.20 Carpenter's office was im-
20 Although Carpenter testified that the corporate stock book and minute book were kept
in a private compartment of respondent's safe to which he did not have access, it seems clear
that at least under the surface indicia of the arrangement Carpenter was occupying a
position roughly corresponding to the office of secretary. Certainly, respondent maintained
him in a position of apparent parity with its managing officers.
JOY SILK MILLS, INC. 1279
mediately adjacent to the reception room or office lobby into which the general
public and all applicants for employment entered. .
Under the physical arrangement, Carpenter met all callers at the plant whose
business was either with Joy or with Premier Knitting Mills. Thus, the evidence
shows that Premier itself occupied under a separate lease the rear portion of
the building which housed Joy's offices and plant ; that two doors opened from
Joy's premises into Premier's ; that the general public, including applicants for
employment, customarily used Joy's main entrance which opened into its office
lobby, and that Premier's employees used the canteen door entrance used by Joy's
employees.
Premier's fiscal affairs were also closely interwoven with Joy's, the controlling
stock interests being identical, and all except one director being the same.
Though owning no stock in Joy, Carpenter owned 25 percent of the capital stock
of Premier, Gilbert and Southerland also owning 25 percent each. Carpenter was
president of Premier and in fact acted as its sole managing officer, though Gilbert
was treasurer and Southerland was vice president. Premier's official corporate
books and records were also kept in respondent's general office and in the same
safe which contained respondent's?'
Carpenter also performed in the general office all necessary bookkeeping and
clerical work on Premier's books and there met callers who had business with
Premier, including applicants for employment. Indeed, only Carpenter had
authority to hire and fire for Premier. That his authority so to act was known
among respondent's employees is established by the testimony of Jean Longrie
(not denied by Carpenter) that she accompanied her sister to a conference with
Carpenter when the sister had applied to him for a job at Premier, and that
she knew Carpenter was the one` to ask for a job at Premier. Longrie also
testified to observing Carpenter make frequent visits into the Premier plant. 22
Under the foregoing circumstances, including the physical comminglement of
accommodations, functions, and fiscal affairs, and the small size of the two
establishments (Premier's operations were much smaller than Joy's), the under-
signed concludes that respondent's employees had knowledge-indeed, could not
escape knowledge-of Carpenter's official position with Premier. Certainly, their
knowledge of his power to hire employees for Premier is conclusively established.
Here, then, was a situation in which Carpenter openly exercised not mere
supervisory power, but complete managerial control over the affairs of a closely
affiliated concern. He was maintained by respondent in an office comparable to
those of its managing officers, and under at least surface conditions which other-
wise reflected relative parity with them.
Respondent, therefore, placed Carpenter in a position where its employees had
every reason to identify him with respondent's own management. That con-
clusion received support from Carpenter's occasional usurpation of managerial
functions and from the use which respondent sometimes made of his services. Il-
lustrative was Carpenter's attempt on the night of September 15 to prevent and
terminate what he assumed was interference by Watson, Chapman, and others,
21 Carpenter explained again that such records were kept in a private compartment to
which he did not have access . No explanation was offered of his failure of access to such
records in the light of his position with Premier.
72 Respondent attaches significance to the fact that Carpenter performed for the em-
ployees a number of "menial tasks" such as calling them to the telephone and delivering
lunches to them and that he was familiarly called by his first name . However, under the
physical and organizational set-up, such duties would necessarily have fallen to the occupant
of the general offices. The informality of address was likewise without significance since
Russell was similarly addressed ; furthermore respondent 's evidence establishes that rela-
tions between the management and the employees generally were on an informal basis.
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with employees who were reporting for and leaving work. Carpenter did not
deny the incident nor did he or any of respondent' s officers attempt to explain
or to justify his usurpation of managerial authority and functions on the occasion.
A further illustration was furnished by Carpenter's attempt to order or invite
Moseley to leave the premises on the morning of the election (later referred to in
more detail) and his identification of himself with management in the subsequent
argument with Moseley outside the canteen 23 Also of significance was Gilbert's
selection of Carpenter as his spokesman in the reading of all three of his state-
ments on all three of the shifts to the employees on October 12 and 18, above
referred to. Though Southerland and Russell were both present on all the oc-
casions and though at least the third shift was outside Carpenter' s normal hours
.of duty, no explanation was offered why Carpenter was selected as Gilbert's
:mouthpiece.
On the evidence in the record as a whole it is concluded and found that re-
spondent held Carpenter out to its employees as its agent, and indeed as a part
of its managerial staff, and that to the extent that his acts and his statements
to the employees are of a coercive nature they are attributable to respondent.
That evidence is now summarized.
(a) Bessie Chapman testified that the morning of the election and before she
voted Carpenter approached her and requested her to read a newspaper clip-
ping,24 and she complied. This provoked her to recite an old grievance against
the company to which Carpenter replied, "Why, Bessie, I thought better of you"
and then cursed the union. Carpenter also quoted Russell to the effect that she
was as good an operator as respondent had and told her "you could better yourself
down here if you would try." Carpenter concluded the conversation by saying,
"I know I can't change your mind , there is no point in me standing here arguing
with you," and "I see I can't do anything with you so I will talk with
Henry O'Neal."
Carpenter's testimony does not substantially contradict Chapman's account.
(b) Henry D. O'Neal testified that in a conversation which he fixed uncertainly
as the day before the election, Carpenter approached him at Chapman's machine
-and asked him, `.`You didn't tell me which way you were going to vote, for or
.against the union ?"; that when he didn't reply Carpenter at first turned away
but came back and asked "you like your job?"
Carpenter admitted having a conversation with O'Neal ; that he inquired how
O'Neal was getting along since his return to work [after a disciplinary lay-off ] ;
that O'Neal responded that he was doing all right and then voluntarily stated
his position as to the union, i. e., that he was trying to make the union people
think that he was for the union because they were after him, but in reality
-he was not for it. Carpenter told him he did not think the employees had any-
thing to gain by having a union and hoped he was not for it.
(c) Jean Longrie testified that the morning of the election Carpenter asked
her to read the Pegler clipping previously referred to, and she did so, that it
related to the president of the American Federation of Labor, and referred to the
fact that he had been in prison or had taken money, that Carpenter then re-
marked that the union was being run by a bunch of crooks and that if the union
23 As illustrated by his statement that ' Moseley had no business "interfering with the'
operations of our plant," and that "before we will see the union come in here ,'we will burn
the goddamned plant down ." [ Italics supplied.]
,24 The testimony of other witnesses, including Carpenter , establishes that the clipping
was of the Westbrook Pegler column from the Charlotte Observer of October 19. Carpenter
admitted that it was a distinctly unfavorable commentary on union leadership, being
definitely uncomplimentary to some high union officials.
JOY SILK MILLS, INC. 1281
came in Mr. Gilbert probably would close down the mill and they would both be
out of a job and he needed his.
Carpenter admitted asking Longrie to read the article, telling her it was
another angle of the union question which possibly had not been presented.
After she read it he told her he had found Joy a satisfactory place to work,
that he liked it and "did not see any reason for or anything the employees would
gain by having a union in the mill."
(d) Edna Robbins testified that the day before the election Carpenter came
up to her machine and opened a conversation by stating that he was surprised
that she was for the union, that her father (who worked elsewhere) was not a
union man and that he didn't think she should be a union girl. She hadn't told
Carpenter she was for the union and asked hint how he knew. He said that
rumors had been going around.
Carpenter admitted having a conversation "substantially along the line" of
Robbins' testimony. He testified that having known Robbins' father for a long
time he did not feel that the father would like such activities on the part of his
daughter.
.(e) Robert Morris testified that on the day of the election Carpenter came up
to him in the plant and asked him how he was going to'vote ; that he replied that
was his business and he would vote the way he wanted to. After a discussion
regarding Morris' feelings towards Southerland and Gilbert, Carpenter told him,
"Don't be going around telling people how to vote."
Carpenter did not testify in denial of Morris' testimony. Respondent did, how-
ever, confront Morris with a questionnaire he had filled out for its counsel during
their trial preparations in which Morris had answered "No" to the following.
.question:
Have you at any time been questioned by Mr. Gilbert, Mr. Southerland, Mr.
Russell, or Mr. Carpenter, concerning your union activities, membership,
desires or sympathies: If so, what were the circumstances?
Morris admitted that he had interpreted the inquiry to include conversations con-
cerning voting in the election, but claimed that he had gotten mixed up in
answering the question. In his testimony, under oath on the stand, he stead-
fastly adhered, under cross-examination by respondent's counsel and by the Trial
Examiner, to his testimony as above summarized, insisting that it was true.
(f) Helen Watson testified that on election day around 11 a. m.26-Carpenter
brought to her machine the Pegler clipping previously referred to. He first stated
that he had talked to a good many of the girls and he couldn't seem to do much
with them; that he knew it wasn't any use to talk to her but he wanted her to see
the clipping. She read it, and after further conversation Carpenter referred to the
Byrd incident and stated that if he were in Gilbert's place he would tell some of
the employees they could'quit if they wanted to. In the same conversation Car-
penter told her that "in he office they were surprised to find she was the brains
behind the union movement."
Carpenter's testimony included no denial of the foregoing testimony by Watson.
He admitted showing her the clipping.
(g) The election morning incident. There is no substantial conflict in the
evidence concerning this incident which was actually in two segments. The first
occurred inside the canteen (the polls) before the opening of the polls, and the
other immediately afterwards on the parking lot in front of the plant. Watson,
Chapman, Moseley, Gordon Finch (another international representative of the
w The third shift voted from 7 to 7 : 30 a. m. ; and the second shift from 2: 30 to 3 p. m.
and the first from 3 to 3: 30 p. m.
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union) and Carpenter testified to the occurrences in the canteen and Moseley,
Finch, and Carpenter to those outside the plant.
The polls were scheduled to open at 6:45 a. m. and the election was being
conducted by Rev. M. V. Shean (referred to throughout as Father Shean) as
agent of the Board. Watson had been selected as the union's observer or repre-
sentative, with Chapman as an alternate, and Carpenter as respondent's observer
or representative. Watson met Moseley, Finch, Chapman, and Father Shean at
the plant around 6:10 a.m. and in a few minutes Carpenter arrived and let them
in the main entrance into the office lobby and they went on into the canteen. The
canteen door (the normal employee entrance) had been locked in order to prevent
first shift arrivals from interfering with third shift voting, but Moseley, who was
there to inspect the voting premises for the union, had not understood the arrange-
ment. In a few moments some of the first shift arrivals having rattled the door-
knob, Moseley began inquiring why the door was locked, directing his inquiries to
Father Shean. Carpenter heatedly intervened, exclaiming, "Moseley, who are you
to tell anyone what to do? You have no damn right in here," taking off his glasses.
Carpenter conceded that his remarks, though not an order, were in effect an invita-
tion to leave the premises . Moseley endeavored to justify his presence and Father
Shean intervened and broke up further exchanges.
Moseley and Finch immediately left the plant and went to their cars, but
Carpenter followed them outside and renewed his argument. He stated that they
should get into a decent profession since they were certainly not in one, that they
"hadn't any damn business interfering with the operations of our plant" and
that they were "just as red as Joe Stalin." After several minutes argument
Carpenter also stated, "before we will see the union come in here we will burn
the goddamned plant down and throw the key away and the employees here
know that we will do it." Carpenter denied only making the last quoted state-
ment. No employees heard the conversation outside the plant and there is no
evidence that it was communicated to any of the employees either before or after
the election. Watson and Chapman heard the conversation in the canteen.
It will be observed that Carpenter admitted many of the salient facts testified
to by the General Counsel's witnesses and that he made no denial of other sig-
nificant testimony. His unsupported denials of still other portions of such
testimony is insufficient to overcome the weight of that of the several witnesses
for the General Counsel, who testified to a series of separate but similar acts
and statements, all immediately before the election, in which Carpenter was
obviously attempting to influence the voting. .It is significant also that Carpen-
ter's actions closely paralleled those of Russell, which are next summarized.
Cf. Matter of Macon Textiles, Inc., 80 N. L. R. B. 1525. It is therefore, con-
cluded and found that the happenings on the occasions above referred to were
substantially as testified to by the witnesses for the General Counsel.
(3) Raymond Russell
(a) Jean Longrie testified that on the morning of the election Russell asked
her why she had suddenly become interested in the union and she told him she
had a right to be. After further conversation Russell added as he left her
"I hope you are satisfied."
Russell testified that he did not recall a conversation with Longrie on that day.
(b) Edna Robbins testified that the day before the election she walked up to
her machine where Russell was talking with Ruth Segars, that Russell then
spoke to her saying she was on one side of the fence and that he was on the other
and then proceeded to relate some of his experiences as a union member saying
among other things that the union didn't do him any good and that all he did
JOY SILK MILLS, INC. 12833,
was pay dues. On cross-examination as to the circumstances under which she
had answered a questionnaire for respondent's counsel during their trial prepara-
tions, Robbins testified that she had answered all questions truthfully. How-
ever, no attempt was made to impeach her by confronting her with her
questionnaire.
Russell denied making the statement attributed to him. He admitted the inci-
dent occurred but testified that he was talking with Segars as Robbins came down
the aisle, that it was Segars whose remark was to the effect that Robbins was on
the wrong side of the fence, and that he remarked, "Well, everybody has a right to
their own opinion." Segars was not called as a witness.
(c) Henry D. O'Neal testified that the day after the union meeting at the
grammar school (established by other evidence as Sunday, October 17) Russell
told him "The way I understand it, you are for the union," and asked him what
he thought or how he felt about the union ; that he replied that he didn't know,.
but volunteered that he had gone to the union meeting at the school. Russell
then asked him how many were there, and he replied 10 or 12. Russell then
told him that if he found out anything more to let him know, and O'Neal
agreed to do so.
Russell admitted that a conversation occurred at the time and place fixed by
O'Neal but testified that it started by O'Neal volunteering the statement that he
had gone to the union meeting and that there weren't many there ; that Russell
replied, "Is that right?", and that nothing further was said.
(d) Gwendolyn Beasley testified that on October 18, Russell questioned her
about the union meeting at the school house on Sunday, asking how many were
there, what the union promised, and whether the union could give the employees
anything he couldn't. She told him she didn't go to the meeting and he wanted
to know why. She told him she forgot about it and he said, "Well, there must
not have been anybody there, every body I have spoken to said that nobody had
been." During the same conversation Russell told her that if the union came
in it would take away the relationship between the employees and the respondent,
and that the employees would have [to] correspond with the mill through the
union; that he was a union member once and never got anything out of it except
paid dues.
Russell admitted that he had a conversation with Beasley at the time and place
in question, but testified that his inquiry on the occasion was "Are you going to
vote in the election tomorrow?", that when she gave an affirmative response he
continued, "Well, I hope you have found out all the details because I hope every-
body will find out and'will find out the good and bad and will vote according
to the dictates of their conscience." He added that he didn't approve of the
union from his personal standpoint, but she wasn't to be guided by what he
thought.
(e) William Chapman testified that a day or two before the election Russell
asked him if he had made up his mind about the way. he was going to vote.
Chapman replied that he had, and Russell said he "hoped it was made up the
right way." Russell also said that he had been in the union and didn't like it
and didn't think it did any good and that "You can't leave the union to become
a foreman." Russell added that he "had a raise coming up" for Chapman, but
if the union came in it might delay it and he might not get it.
Russell testified that he had no recollection whatsoever of such a conversation.
(f) honceil (Hendrix) Holloman testified that she had more than one con-
versation with Russell a few days before the election but was unable to state
the exact number. Insofar as pertinent to the issues her testimony as to the
857829-50-vol. S5-82
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conversations may be summarized as follows : Russell told her some of his
experiences as a member of a union , said that it wasn't any good and that he
wished she was on his side of the fence . He asked her if she went to the union
meeting on Sunday night ; he told her that if the employees voted for the union
the union couldn ' t make them lose their jobs but that she might lose her shift
[i. e. through rotation ] ; that the mill was giving the employees a vacation and
the union couldn't say they would give it to them. On cross -examination she
admitted that during all the conversations he informed her she could vote as
she pleased and she added "then he told me [the union ] didn't do him any
good." She denied that she had asked Russell what would happen if the union
Came in and that she was afraid of losing her shift because of lack of seniority.
Russell testified to a single conversation with Holloman , his account being as
follows : that Holloman herself brought up the subject of a shift rotation and
inquired whether if the union came in she would be replaced by an employee with
more seniority . He replied that he didn ' t know, but that Mr. Gilbert had prom-
ised a vote on shift rotation and so far as he knew the mill would be guided
by the result.
(g) Lois Gainey testified that when interviewed on her application for a job
in December 1948 , 24 Russell told her he was going to need a few girls and
would keep her in mind . Then he asked her what she thought of a textile union
and she said she didn't know enough about unions to express her mind one way
or the other . She was hired shortly thereafter . Russell did not testify to the
incident . Respondent in its brief concedes that Gainey 's testimony is accurate.
In most of the above instances Russell admitted the fact of a conversation, but
in each case, according to his version , he avoided any statement of a coercive
nature. He admitted expressing in some instances his personal views and his
opinion as to the union . Russell testified that he had received instructions from
Gilbert and from respondent 's counsel not to threaten or interrogate employees
or otherwise to pry into union activities, but that he was not informed what he
could say about the union and that "I was advised that anything I said would be
of my own personal opinion."
It will be seen that six employees testified to a series of separate incidents; all
of the same general character , occurring on the clay of the election or shortly
prior thereto. Significant also is the fact that Russell 's anti -union activity
closely paralleled the course of action pursued by Carpenter . In view of all
the circumstances it is concluded and found that Russell either misunderstood
his instructions or chose to interpret them too literally , and that his testimony
is inadequate to overcome the preponderant weight of the combined adverse
testimony . It is therefore concluded and found that the incidents occurred sub-
stantially as testified to by the General Counsel's witnesses.
(4) H. P. Southerland
(a) Jean Longrie testified that shortly before the election Southerland talked
with her in the shipping room and informed her that if he wanted to improve
her job he could not do so without the consent of the union if the union came in.
Southerland denied that such a conversation occurred.
(b) Minnie Lee Gainey testified that on the night the Gilbert letters were read
on her shift (October 18) Southerland asked her if she was going to vote for or
against the union. She told him she didn't know. He then asked if Emilia Gray
Gainey (her sister-in-law) had told her how to vote and she replied, "Emma Gray
hasn't told me what to do."
26 For convenience this incident is treated here, together with the incidents which preceded
the election.
JOY SILK MILLS, INC. 1285
Gainey was a very nervous witness and appeared to become easily confused
even by relatively simple questions. Her testimony on cross-examination was
somewhat confused as to the circumstances under which she had answered a
questionnaire for respondent's counsel during trial preparations, and as to the
manner in' which she had answered question No. 15 thereon. That question
read as follows :
Have you at any time been questioned by Mr. Gilbert, Mr. Southerland,
Mr. Russell , or Mr. Carpenter concerning your Union activities, membership,
desires, or sympathies? If so, state what were the circumstances?
Gainey could not recall independently how she had answered the question, and
when shown the questionnaire she could read only a portion of the answer,
although other portions are legible. The first answer, "No," had been stricken
out and below it the following answer appeared :
On one occasion Mrs. Soughtherland as me "or you going to join the Union"
I said I don't know, and nothing more was said by any of us.
Her answer, though varying somewhat from her testimony, does reflect an
effort on her part (probably the best effort of which she was capable) to furnish
respondent's counsel with the information they were seeking.
Southerland admitted the fact of a conversation, that it arose in the manner
testified to by Gainey, but testified that his inquiry was whether she was "going
to vote in the Union-Company election in the morning." Though he got no
answer he continued "I hope you do" and added "Did Emma Gray tell you
whether she was going to vote in the election or not?"
It is concluded and found that on the occasion in question Gainey was con-
fused by and misunderstood the questions which Southerland put to her, and
that Southerland's efforts and inquiries were limited to "getting out the vote"
rather than attempting to influence it.
(5) William Outlaw
Outlaw is 19 years of age and had been in respondent 's employ about 3 years.
Originally he was a machine operator but later became (and remained) a machine
fixer . In that job he repaired and adjusted machines, oiled machines, and some-
times operated machines. During September and October 1948, his assignment
was in the twisting room on the second floor on the first shift. There are only
three employees who operate the twisters on each shift. Outlaw's base pay is the
same as that of all production employees, his only increases resulting from tenure.
A large majority of the production and maintenance employees earn a higher rate
than Outlaw because of longer tenure. He had no authority to hire or fire or to
recommend either ; he has never made reports to his supervisors because of the
quality or quantity of the work of other employees and is not supposed to. He
was Solicited to join the union; though his vote was challenged by the union at the
election.
General Counsel's contention that Outlaw was a supervisor was based mainly on
testimony that Outlaw had on various occasions given orders to employees
.operating the twisters, had "directed" one or more of them to go down to vote in
the election, and had "counted ends." The latter operation consisted of counting
on: the machines three times during his shift the ends of yarn which were not
running and recording the count on a sheet of paper under the machine operator's
name.
The preponderance of the evidence is clearly to the effect that respondent did
not inaugurate the practice of counting ends until after the election and until after
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the occurrence of the incidents in which Outlaw was allegedly involved . Further-
more, it is found that the function was purely a nondiscretionary one of keeping
a production record , and that a similar function was performed in other depart-
ments by nonsupervisory employees.
Nor is the evidence as to the giving of orders adequate to establish that Outlaw
had authority "responsibility to direct " other employees . The evidence does
establish that on some occasions Russell used Outlaw to transmit directions to the
twisters on the second floor." Also, when it became necessary to shut a machine
down for repairs Russell himself notified the operator to cease tending it and,
after the repairs were made, that it was ready for her to resume tending it. The
undersigned finds that the evidence as a whole does not support the testimony of
the General Counsel's witnesses that Outlaw gave orders or that they took orders
from him, certainly not in the sense that Russell had authority "responsibility to
direct" them. Cf. amended decision Matter of The Ohio Power Company, 80
N. L. R. B. 1334.
Another significant consideration is that there was no apparent necessity in
respondent 's small organization for the creation of a supervisory position over
three employees ; indeed this would seem to have led to three separate supervisory
posts-one for the three twisters on each shift . Such disproportion of super-
visors over rank and file employees is a persuasive circumstance. Matter of The
Ohio Power Company, supra.
The Board 's recent decision in Matter of Inman Mills, 82 N. L . R. B. 735,
affords a fortiori authority . There it was held that "section men" in a textile
mill who did mechanical work only from 25 to 64 percent of their time, who.
were responsible for maintaining proper quantity and quality of production on.
the machines they supervised , and who received a 25 to 30 cent an hour dif-
ferential over employees in their section , were not supervisors within the mean-
ing of the Act.
It is concluded and found that Outlaw did not occupy supervisory status. It is.
therefore considered unnecessary to summarize the evidence of acts and statements.
attributed to him.
Concluding Findings
While many of the statements made by Gilbert, Carpenter, and Russell on the
various occasions as above recounted fell within the bounds of permissible free
speech, it is concluded and found that the following statements and inquiries
were coercive :
(a) The announcement or promise of rest periods at respondent's expense,
contained in the Gilbert statement of October 12, and Gilbert's promise-
after the reading of his statements on October 18, that he would start shift
rotation if a majority of the employees voted for it.
The undersigned concludes and finds that said announcements and promises.
of benefits because of their significant timing were calculated directly to affect
the decision of the employees on the issue of union representation. Matter of"
Macon Textiles, Inc., 80 N. L. R. B. 1525; Matter of Agar Packing & Provision Co.,
81 N. L. R. B. 1262. Of. Matter of Craddock-Terry Shoe Corporation, 82 N. L. R. B.
161; Matter of Hinde & Dauch Paper Co., 78 N. L. R. B. 488. For the presentation
of economic benefits to employees to have them forego collective bargaining is a
form of pressure and compulsion no less telling in its effect on employees because-
21 Such occasions would necessarily have been infrequent since Outlaw 's employment on the-
first shift was at a time when Russell was also in the plant, and the evidence shows that:
Russell made frequent visits to the twisting department.
JOY SILK MILLS, INC. 1287
benign. Matter of Hudson Hosiery Company, 72 N. L. R. B. 1434. Interference
is no less interference because it is accomplished through allurement rather than
coercion when it is employed to stem a tide of organization. Western Cartridge
,Company v. N. L. P. B., 134 F. 2d 240 enfg, 44 N. L. R. B. 1, cert. denied 320
13..S. 746. This does not mean, of course, that an employer is foreclosed from
.announcing or granting economic benefits during a union's organizational cam-
paign. What is unlawful under the Act is employer's granting or announcing such
benefits (though previously determined upon bona fide) for the purpose of causing
the employees to accept or reject a representative for collective bargaining. Mat-
ter of Hudson Hosiery Company, supra. It is found that the announcement or
promise of paid rest periods was reasonably calculated to have that effect, and
that respondent thereby engaged in interference, restraint, and coercion in viola-
tion of Section 8 (a) (1).
It is not found that Gilbert's reference to paid vacations was coercive since
.that benefit had been granted on the employees' demand during their earlier
concerted activities and prior to the advent of the union's representatives and
prior to any representation question.
The undersigned also rejects the General Counsel's contention that the other
portions of the Gilbert statements (see page 13, supra) were of coercive effect
because of an implied threat that the advent of the union would affect their wages
adversely and an implied threat not to bargain with the union. It i^ found to
the contrary that the statements in question do not imply such threats. Similarly,
the statement from which the General Counsel implies that the respondent would
not agree to a union shop is found not to constitute an anticipatory refusal to
bargain concerning the union security issue as contended. Cf. Matter of Tygart
Sportswear Company, 77 N. L. R. B. 613, and cases cited, footnote 2.
(b) The inquiries by Carpenter as to how employees would vote in the
,election and as to their union membership, views, and attitudes; his threat
that Gilbert probably would close the mill if the Union came in ; and his
implied threat to O'Neal that his job would be affected by his vote (cf.
Matter of Atlantic Stages, 78 N. L. R. B. 553).
It is not found that Carpenter's circulation of the anti-union clipping, his
cursing of the union, or his vilification of union officers or representatives con-
stituted coercion. Matter of Union Screw Products Co., 78 N. L. R. B. 1107;
Matter of Kelco Corporation, 79 N. L. R. B. 759; Matter of Atlanta Broadcasting
,Co., 79 N. L. R. B. 626; Matter of C. Pappas & Co., Inc., 82 N. L. R. B. 765; Matter
of U. S. Trailer Mfg. Go., 82 N. L. R. B. 112. Neither is it found that his implied
invitation to Moseley to leave the voting premises was coercive, though made in
the presence of two employees, nor his later statement to Moseley and Finch on
the parking lot that "we will burn the plant down," etc. There is no evidence
that the latter statement was communicated or intended to be communicated to
the employees. Matter of M. Snower & Company, etc., 83 N. L. R. B. 290, citing
Matter of Parkside Hotel, 74 N. L. R. B. 809.28
(c) The inquiries by Russell as to employees' interest in, views toward, and
membership in the union and as to how they intended to vote in the election;
his inquiries as to union meetings and activities and his solicitation of em-
ployee assistance in obtaining such information ; his implied threat that an
employee would not receive a contemplated increase if ,the union came in; his
implied threat that if an employee voted for the union, she would lose her
28 But see Matter of Arton Studio, 74 N. L. R. B. 1158, 1163 ; and Matter of Piedmont
Wagon d Mfg. Co ., 79 N. L . R. B. 967.
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shift ; and his questioning of an applicant for employment as to her union
views.
It is not found that Russell's other statements were of a coercive effect nor
that Southerland's remarks to Longrie were coercive.
It is therefore concluded and found that by the acts and statements set forth in
paragraphs (a), (b), and (c), supra, respondent engaged in interference, re-
straint, and coercion in violation of Section 8 (a) (1) of the Act.
e. The refusal to bargain ; concluding findings
It has been found that the union made a request for recognition and a request
to bargain . It has also been found that as a condition precedent to granting-
these requests , respondent was entitled in good faith to insist upon the estab-
lishment of the union ' s majority in the manner it selected . Having consented
to an election , however, as the appropriate means of satisfying its doubts, re-
spondent was under the correlative obligation to permit and to abide by its em-
ployees' free choice of a representative as it existed at the time of the union's
request for recognition and not to attempt to defeat such choice by any form of
interference , restraint , or coercion . Matter of P•igy Boat Works , 69 N. L. R: B.
97, 123. But respondent 's acts of interference and coercion on October 12, 18, and:
19, as hereon found , demonstrated that whatever doubts it had previously enter-
tained were no longer genuine, that it no longer had reason to believe the union's
claim of a majority was untrue ( cf. Matter of John Deere Plow Co., of St. Louis,.
82 N. L. R. B. 69 ), and that it sought to evade its obligation to recognize and to.,
bargain with the union.
If its good faith had continued , respondent would certainly have either re -,
frained from such acts of interference or have notified the union that it would
no longer insist on the consent election and that it was ready to bargain. For
notwithstanding its initial ' bona fides , respondent could no longer be heard to,
say that it entertained an honest doubt as to the union 's representative status
after it set about the commission of acts which rendered impossible of fulfill-
ment the very condition precedent which it had imposed i . e., the demonstration.
in a free election of the union 's claim of a majority . Cf. Matter of Consolidated'
Maclaine Tool Corp'n., 67 N. L. R. B. 737, enfd as modified , 163 P. 2nd 376 (C. A..
2) ; cert. den . 332 U. S. 824.
Under these circumstances the election result affords the respondent no de-
fense ( Cf. Matter of D. H. Holmes Company, Ltd ., 81 N. L. R. B. 753 ) since to the
extent that the election showed a defection in the union ' s support , such defection,
was attributable to the respondent 's unfair labor practices and is therefore not
a bar to a remedial order in this case. ( Ibid, and cases cited, footnote 11.) The'
clear majority which the union enjoyed as early as September 16, has therefore.
continued unabated ; and it is found that the union has at all times since that
date remained the exclusive bargaining representative of the employees in the,
appropriate unit.
It is concluded and found that by its said acts respondent on October 12, 18,.
and 19, 1948, and since , refused to bargain collectively with the union as the ex-
clusive representative of its employees in an appropriate unit and thereby de-
prived its employees of the rights guaranteed by Section 7 of the Act.
4. Trial preparations by respondent 's counsel ; interference , restraint, and
coercion
It was stipulated at the hearing that the complaint should .be deemed amended
to provide for findings on the question whether certain prehearing preparations
JOY SILK MILLS, INC. 1289
of respondent's counsel constituted violations of the Act. The facts were stip-
ulated as follows :
Counsel for the respondent, on or about March 10 and 11, 1949, submitted a
questionnaire to a substantial number of respondent's employees employed during
the months of September and October 1948. Counsel prepared the questionnaire
in the course of preparation and investigation of the facts alleged in the com-
plaint. Before preparing the questionnaire respondent's counsel called the
Board's Regional Director in Atlanta by telephone and informally requested the
Chief Law Officer of the Region for a more definite statement of facts in order
to prepare respondent's defense in the hearing. This request was refused where-.
upon respondent's counsel filed a motion for a more definite statement on the
same basis and also filed its answer. The motion was referred to the Trial Ex-
aminer and was granted in part but the requested information was not furnished
respondent under the Trial Examiner's order until the morning of March 22, 1949,.
at the start of the hearing.
The questionnaire was submitted to and answered by the employees of the
respondent under the following circumstances :
They were interviewed in the canteen in groups of from four to eight employees
on company time. Counsel introduced themselves by name to the employees and
advised them that they represented the company as attorneys. They told. the
employees the purpose of the questionnaire which was to be given them was to
enable counsel to prepare the company's defense in the hearing that was to take
place on March 22. The employees were advised that the filling out of the
questionnaire was completely voluntary and that there would be no reward, no
promises, threats, or coercion of any kind connected with the filling out of the
questionnaire. They were advised that they were free to leave the canteen at
that point even before the questionnaires were handed to them. They were advised
that they could omit the answer to any question or all of the questions after read-
ing them over. They were asked not to answer any question if they didn't
understand it thoroughly.
They were requested to ask counsel concerning the meaning of any words,
phrases, or statements which were contained in the questionnaire that they did
not understand. They were requested to answer each question truthfully if they
answered it and to state the facts whether they thought them unfavorable to
the company or not. They were requested not to compare answers to the ques-
tionnaire among themselves, to give independent answers in accordance with the-
facts as each understood them to be. They were requested not to answer ques-
tions by conjecture and to state only facts of which they were certain.
They were advised that they had a right to engage in union activities prior
to the election, and for that matter at the present or any time in the future.
They were also told that the company had no right to interfere with their union
activities in any manner.
At that point the employees were asked whether all the. foregoing statements
were clear to each of them and whether any of them had any questions to ask
concerning their rights in connection with the filling out of the questionnaire.
Counsel then read each question aloud and asked each employee if the question
was clear to him. Thereupon, each employee filled out his questionnaire inde-
pendently and without assistance of counsel.
Each employee signed each page of the questionnaire and the certification at
the end of the questionnaire to the effect that the answers were given volun-
tarily. The signature of each employee was witnessed by another employee who-
was present at the time the questionnaire was signed . Each employee was
requested to read the questionnaire and his answers over again before finally
giving the questionnaire to the respondent's counsel.
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After the questionnaires were filled out each employee was again advised of
the purpose of the questionnaire and asked whether he understood his answers
thereto were voluntary. After the employees finished reading the question-
naire they were requested to ask other employees in their departments to come
into the canteen in groups of four and five employees, and they were asked or
told by the supervisors to go down to the canteen which they did.29
The questionnaire contained 28 questions including a number which the Gen-
,eral Counsel and the union contended at the hearing were outside the scope
,of the issue framed by the pleadings, exceeded the permissible scope of trial
preparations, and constituted an unfair labor practice.
The questions objected to were as follows :
5. Have you ever signed a card in connection with Union activities?
6. What was the nature of the card?
7. What did you consider to be the purpose of signing the card?
8. Did you consider yourself a member of the Union when you signed
the card?
9. At the time you signed the card, did you pay any money for member-
ship or other fees in the Union?
10. Did you agree to the future payment of any membership, initiation
or other fees to the Union?
13. Did you terminate your connection with the Union at any time after
.you signed a card?
14. If so, for what reason did you terminate your connection with the
Union?
21. Did you cast your vote at the election solely according to your own
personal views concerning whether you desired the Union to represent
you and without any fear or threats as to your job and future with the
Company, and without being influenced in any respect by promises of
future benefits by the Company?
25. Did you consider that those speeches or the statements and notices
posted on the bulletin board were threats or promises of benefits to influence
your vote against the Union?
Respondent relies on the Board's decisions in the Matter of N d W Overall
,Co., Inc., 51 N. L. R. B. 1016; May Department Stores Co., 70 N. L. R. B. 94; and
P. W. Judge Optical Works, Inc., 78 N. L. R. B. 385. In the first two cases the
Board held that an employer is privileged to interview employees for the purpose
of discovering facts within the limits of the issues raised by a complaint, where
the employer or its counsel does so for the purpose of preparing its case for trial
and does not go beyond the necessities of such preparation to pry into matters
of union membership, to discuss the nature or extent of union activities, to
dissuade employees from joining or remaining members of a union, or otherwise
to interfere with the statutory right of self-organization.
The main questions here are whether the information elicited was within the
scope of the issues raised by the complaint, and if not whether the inquiries,
under the circumstances in which they were made, constituted interference,
restraint, and coercion.
It is true that the allegations of the complaint are along broad and general
lines and that respondent's counsel was unable to procure from the Regional
Director a voluntary particularization thereof. However, it seems clear that
at least some of the questions to which the General Counsel objects were clearly
zs There is no evidence that any of respondent ' s officers or supervisors were present during
the interviews.
JOY SILK MILLS, INC. 1291
outside the scope of the material issues. This is particularly evident in those
which sought information as to the payment of membership or other fees and
as to any agreement to the future payment of such fees and as to those which
probed only for such purely subjective matters as the employees' understanding
of the purpose and of the effect of the cards, his reasons for terminating his con-
nection with the union (if he had done so) and whether he had voted freely
in the election.
It has been held that signing an application for membership implies authority to
bargain 30 and that neither membership in nor payment of dues to a union is
determinative of statutory authorization. Consolidated Machine Tool Corpora-
tion v. N. L. R. B., 67 N. L. R. B. 737, 739; enforced 163 F. 2d 376; cert. den. 332
U. S. 824; and that the testimony of a signer as to his subjective state of mind at
the time of signing cannot operate to overcome the effect of his overt action in
having signed an application. Ibid., and see Matter of The Nubone Co., Inc.,
62 N. L. R. B. 322; Wright-Hibbard Industrial Electric Truck Co., Inc., 67
N. L. R. B. 897, 906; Phillips Transfer Co., 69 N. L. R. B. 493. Under these
holdings the inquiries sought evidence which was plainly extraneous to the
issues.
The same is true as to the inquiry whether the employee had voted freely in the
election without threats, fear, promises, etc., from the company. Matter of
Pure Oil Co., '73 N. L. R. B. 1, 3, and cases cited in footnote 4; Matter of G. H.
Hess, Inc., 82 N. L. R. B. 463; Matter of Dimie Shirt Co., 79 N. L. R. B. 127.
There is of course no issue in the present proceeding as to the validity of the
election. That issue was one raised on the union's objections filed in the repre-
sentation hearing and disposed of by the Regional Director on his order setting
the election aside. No reason, therefore, appears for counsel's exploration or
probing of the subjective state of the employees' minds at the time of voting.
Furthermore, the inquiries postulate the erroneous test whether the employee
was in fact influenced by any of respondent's promises, threats, etc. The true
test is, of course, not whether the employee actually felt intimidated or coerced but
whether the employer engaged in conduct which it may reasonably be said tends
to interfere with the free exercise of employee rights under the Act. N. L. R. B. v.
Ford Brothers, 170 F. 2d 735 (C. A. 6) and cases there cited; and see Matter of
G. H. Hess, Inc., supra, and Matter of Pure Oil Co., supra.
Aside from seeking evidence on immaterial issues, it is also noteworthy that
an important distinction between the inquiries sustained by the Board in the cases
cited by respondent 31 and those now presented, is that those which were upheld
sought evidence of purely objective facts whereas the present inquiries are con-
cerned chiefly with probing the employee's subjective state of mind.
What has already been said disposes of the point whether the inquiries under
all of the circumstances constituted interference, restraint, and coercion. That
they do is conclusively established by repeated Board and judicial decisions. The
fact that the employees were fully advised that they were free to answer and of
the purpose for which the inquiries were being put does not dissipate the clearly
coercive nature of inquiries which explored their past, present, and future rela-
tions with their duly selected bargaining agent. See cases last above cited. It is
therefore found and concluded that by the inclusion in the questionnaire of ques-
11 It has been found that on two occasions the union offered to agree to a cross-check of its
membership cards and that respondent declined both offers.
31 The Judge Optical Works case is also distinguishable on the fact that the questionnaire
was submitted to former employees.
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,tions Nos. 7, 8, 9, 10, 13, 14, 21, and 25, respondent engaged in interference, re-
straint, and coercion within the meaning of Section 8 (a) (1) of the Act82
The effect of the unfair labor practices upon commerce
It is found that the activities of the respondent set out in Division III hereof,
occurring in connection with the operations of the respondent described in Divi-
sion I hereof, 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 Joy Silk Mills, Inc., has engaged in un-
fair labor practices within the. meaning of Section 8 (a) (1) and (5) of the
Act (61 Stat. 136), the undersigned will recommend that it cease and desist
therefrom and that it take certain affirmative action in order to effectuate
the purposes of the Act.
It having been found that from October 12, 1948, and thereafter respondent
has refused to bargain collectively with United Textile Workers of America,
.AFL., as the exclusive representative of its employees in an appropriate unit,
it will be recommended that the respondent, upon request, bargain collectively
with said union.
It having been found that the respondent has engaged in certain acts of inter-
ference, restraint, and coercion, it will be recommended that the respondent
cease therefrom.
It has been found that the respondent engaged in a variety of unlawful acts
which interfered with the free choice by its employees of their bargaining repre
.sentative, and that such acts were resorted to for the deliberate purpose of
enabling respondent to evade its obligation to bargain collectively with such
representative in an election to which it had consented. Because of the re-
spondent's unlawful conduct and the underlying purposes manifested thereby,
the Trial Examiner is of the opinion and finds that there is a danger of the
commission of other and additional unfair labor practices. Therefore, in
order to effectuate the guarantees of Section 7 of the Act, it will be recom-
mended that the respondent be ordered to cease and desist from in any man-
ner interfering with, restraining, or coercing its employees in the exercise of
their right to self-organization. See May Department Stores v. N. L. R. B.,
326 U. S. 376.
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, AFL, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. All of respondent's production and maintenance employees at its plant
-in Hartsville, South Carolina, except for clerical and office employees and
.guards, professional employees and supervisors as defined in the Act, consti-
.22 In view of the allegation in the complaint that the union has continued to represent a
majority of the employees in the unit , it is not found that the inclusion of questions 5 and 6
constituted interference or coercion.
Respondent ' s counsel impliedly conceded that questions 13 and 14 may have been improper,
since after 7 employees had been interviewed , they struck those questions from the
,questionnaire.
JOY SILK MILLS, INC. 1293
tute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
3. At all times since September 16, 1948, United Textile Workers of America,
AFL, has been and now is the representative of a majority of the employees
of the respondent in the unit above described, for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing on or about October 12, 1948, and at all times thereafter to
bargain collectively with United Textile Workers of America, AFL, as the ex-
elusive representative of all its employees in the aforesaid appropriate unit,
the respondent has engaged in and is engaging in, unfair labor practices within
the meaning of Section 8 (a) (5) of the Act.
5. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of said Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law and
upon the entire record of the case, the undersigned' recommends that the Joy
Silk Mills, Inc., and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with United Textile Workers of America,
AFL, as the exclusive representative of all its employees in the unit heretofore
found appropriate with respect to rates of pay, wages, hours of employment, or
other conditions of employment;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of their right to self-organization, to form labor organi-
zations, to join or assist United Textile Workers of America, AFL, 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
At.
2. Take the following affirmative action which the undersigned finds will ef-
fectuate the policies of the Act:
(a) Upon request, bargain collectively with United Textile Workers of
America, AFL, as the exclusive bargaining agent of all its employees in the
bargaining unit described herein with respect to rates of pay, wages, hours
of employment, and other conditions of employment, and if an understanding
is reached, embody such understanding in a signed agreement ;
(b) Post at its Hartsville, South Carolina, plant copies of the notice attached
hereto marked "Appendix A." Copies of said notice, to be furnished by the
Regional Director for the Tenth Region, shall, after being duly signed by re-
spondent's representative, be posted by respondent immediately upon receipt
thereof and maintained by it for sixty (60) consecutive days thereafter, in con-
spicuous 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 ;
(c) Notify the Regional Director for the Tenth Region (Atlanta, Georgia)
in writing, within twenty (20) days from the receipt of this Intermediate Report
and Recommended Order, what steps respondent has taken to comply herewith ;
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is further recommended that unless , on or before twenty ( 20) days from
the date of the receipt of this Intermediate Report and Recommended Order,
respondent notifies said Regional Director in writing that it will comply with
the foregoing recommendations , the National Labor. Relations Board issue an
order requiring 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 , 1948, 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 a
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 double
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 , conclusions,
and order , and all objections thereto shall be deemed waived for all purposes.
Dated at Washington; D. C., this 27th day of May 1949.
GEORGE A. DOWNING,
Trial Examiner.
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 Labor Management
Relations Act, we hereby notify our employees
WE WILL NOT refuse to bargain collectively with UNITED TEXTILE WORKERS
OF AMERICA, AFL, as the exclusive representative of all employees in the
appropriate unit described below.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist UNITED TEXTILE WORKERS OF AMERICA, AFL,
or any other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for the
purpose of 'collective bargaining or other mutual aid or protection.
WE WILL BARGAIN collectively upon request with the above-named union as
the exclusive representative of all employees in the bargaining unit described
JOY SILK MILLS, INC. 1295
herein with respect to rates of pay, wages, hours of employment, or other
conditions of employment, and if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is:
All our production and maintenance employees at our plant in Hartsville,
South Carolina, except for clerical and office employees and guards, pro-
fessional employees and supervisors as defined in the Act.
All our employees are free to become or remain members of this union, or any
other labor organization.
JOY SIL$ MILLS, INC.,
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.