Magee Carpet Co.

National Labor Relations Board - Board Decisions

Aug 31, 1950

91 N.L.R.B. 103 (N.L.R.B. 1950)

In the Matter Of MAGEE CARPET COMPANY and TEXTILE WORKERS
UNION OF AMERICA, CIO
Case No. 4-CA-178.=Decided August 31, 1950
DECISION AND ORDER
On May 11, 1950, Trial Examiner W. Gerard Ryan issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent has engaged 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 also
requested oral argument. This request is hereby denied as, in our
opinion, the record and the exceptions and brief adequately present
the issues and the positions of the parties.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this proceeding to a three-member panel [Members Houston, Rey-
nolds, and Murdock].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed?
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner with the following additions and
modifications :
1. We find, as did the Trial Examiner, that the Respondent violated
Section 8 (a) (1) of the Act by interrogating various of its employees
as to whether they were solicited by Crabtree and Newhart to join
the Union 2 In excepting to this finding of the Trial Examiner the
i Contrary to the Respondent 's contention , we find nothing in the record or in the Inter-
mediate Report reflecting bias or prejudice by the Trial Examiner in either the conduct
of the hearing or in his findings , conclusions , or recommendations . Accordingly , we deny
the Respondent 's motion for the reopening of this case and for the designation of a new
Trial Examiner.
2 The record does not show and we do not rely on the Trial Examiner 's finding that
these employees were asked whether they had become members of the Union.
91 NLRB 17.
103
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent seeks to justify these interrogations on the ground that
they were legitimately carried out as part of the Respondent's in-
vestigations to determine whether Crabtree and Newhart had breached.
the company no-solicitation rule. We find no merit to this contention
for, apart from any legal question of privilege, the record conclusively
demonstrates, and we find, that Crabtree and Newhart were discharged.
for their union sympathies and activities and not for violation of a,
company rule, and that the Respondent- did not interrogate its-em-
ployees in pursuance of a bona, fide investigation.3 The interrogation
of its employees by the Respondent concerning attempts to have them:
join the Union was therefore unwarranted and per se violative of
Section 8 (a) (1) .of the Act.4 Similarly, we find that the interroga-
tion of Crabtree and Newhart by various of Respondent's officials
and supervisors concerning their union views and activities, as de-.
tailed in the Intermediate Report, constituted independent violations.
of Section 8 (a) (1) of the Act.
The Trial Examiner further properly found that statements by
President Magee to Crabtree contained threats of reprisal, were in-
timidating, and coercive. We accordingly, find that the following.
remarks made by Magee to Crabtree constituted additional violations
of Section 8 (a) (1) of the Act:
. (a) Magee's statement that he would never allow anyone who be-
lieves in CIO to work in his mill; that he would shut down the mill
before he would let any union, AFL, CIO, or even TWA,5 tell him
how to run the mill, and that he was in a position to do so because
he was his own board of directors and controlled over 90 percent of
the stock;
(b) Magee's ultimatum to Crabtree to change his mind before the
following Monday morning about working in behalf of the, CIO under
penalty of discharge for failure to comply with this condition.
The Remedy
The Respondent has excepted- to the-br-oad,, cease and desist order
recommended by the Trial Examiner and asserts,'without abandoning
its opposition to the Trial Examiner's 8 (a) (1) and 8 (a) (3) findings, .
that the order should be limited to the particular violations found.
It is our opinion, however,. that the unfair labor practices found herein
reveal a hostile attempt by the Respondent to defeat the attempts by its
It is noted in this connection that employee Coombe, produced as Respondent 's witness,
testified that he was interrogated by Foreman Lunger concerning his solicitation by Crab-
tree one day subsequent to Crabtree ' s discharge.
' Standard-Coosa-Thatcher Company, 85 NLRB 1358.
s This reference is to the Textile Workers Alliance of the Magee Carpet Company, an
unaffiliated union which for several years has been recognized by the Respondent as the
bargaining representative of its employees.
MAGEE, CARPET COMPANY 105
employees at self-organization and a fixed attitude of opposition to the
purposes of the Act. We find therefore, as did the Trial Examiner,
that the unfair labor practices committed by the Respondent are
potentially related to other unfair labor practices proscribed by the
Act and that the danger of their commission in the future is to be anti-
cipated from the Respondent's past conduct. The preventive pur-
poses of the Act will be thwarted unless our order is coextensive with
the threat. Accordingly, in order to make effective the interde-
pendent guarantees of Section 7 and thus effectuate the policies of
the Act, we shall order that the Respondent cease and desist from
in any manner infringing upon the rights guaranteed in Section 7
of the Act.
As recommended by the Trial Examiner, we shall order the Re-
spondent to offer Lewis Crabtree and Robert E. Newhart reinstate-
ment with back pay from the dates of their discharges. Since the
issuance of the Trial Examiner's Intermediate Report, however, the
Board has adopted a method of computing back pay different from
that recommended by the Trial Examiner.6. Consistent with the new
.Board policy, we shall order that the loss of pay be computed on the
basis of each separate calendar quarter or portion thereof during the
period from the Respondent's discriminatory action to the date of a
proper offer of reinstatement. The quarterly periods, hereinafter
called "quarters," shall begin with the first day of January, April,
July, and October. Loss of pay shall be determined by deducting
from a sum equal to that which these employees normally would have
earned for each quarter or portion thereof, their net earnings,' if
any, in other employment during that period. Earnings in one par-
ticular quarter shall have no effect upon the back-pay liability for any
other quarter.
We shall also order the Respondent to make available to the Board
upon request payroll and other records to facilitate the checking of
the amount of back pay due."
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
F. W. Woolworth Company, 90 NLRB 289.
By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work , and working else-
where which would not have been incurred but for this unlawful discrimination and the
consequent necessity of his seeking employment elsewhere . Crossett Lumber Company, 8
NLRB 440. Monies received for work performed upon Federal, State, county, municipal,
or other work -relief projects shall be * considered as earnings . Republic Steel Corporation
v. N. L. R. B., 311 U. S. 7.
B F. W. Woolworth Company, supra.
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board hereby orders that Magee Carpet Company, its officers, agents,
successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Textile Workers Union of Amer-
ica, CIO, or in any other labor organization of its employees, by dis-
charging or refusing to reinstate any of its employees, or by discrimi-
nating in any other manner in regard to their hire or tenure of
employment or any term or condition of employment;
(b) Enforcing its rule against solicitation, or any other plant rule,
in such manner as to discriminate against its employees because of
their union affiliation, activities, or sympathies;
(c) Interrogating its employees in any manner concerning their
union affiliation, activities, or sympathies, or threatening them with
discharge or other economic reprisal because of their union affiliation,
activities, or sympathies;
(d) Threatening employees that it will close its plant, or taking
other economic reprisals against its employees if they join Textile
Workers Union of America, CIO, or any other labor organization,
or if a majority of its employees select a new labor organization to
represent them in collective bargaining;
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Textile. Workers Union of Amer-
ica, CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in any
other concerted activities for the purposes of collective bargaining
or other mutual aid or protection, or 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 con-
dition of employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Lewis Crabtree and Robert E: Newhart immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights or privileges;
(b) Make whole Lewis Crabtree and Robert E. Newhart in the
manner set forth in the section entitled "The Remedy" for any loss of
pay they may have suffered by reason of the Respondent's discrimina-
tion against them ;
(c) Upon request, make available to the Board or its agents for
examination and copying all payroll records, social security payment
records, time cards, personnel records and reports, and all other
MAGEE CARPET COMPANY 107
records necessary to analyze the amount of back pay due and the
right of reinstatement under the terms of this Order;
(d) Post at its plant in Bloomsburg, Pennsylvania, copies of the
notice attached hereto and marked "Appendix."" Copies of said
notice, to be furnished by the Regional Director for the Fourth Region,
shall, after being duly signed by a representative of the Respondent,
be posted by it immediately upon receipt thereof, and maintained by
it for sixty (60) consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said.
notices are not altered, defaced,, or covered by any other material;
(e) Notify the Regional Director for the Fourth Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
APPENDIX
NoTICE To ALL EMPLOYEES
Pursuant to aDecision 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 discourage membership in TEXTILE WORKERS
UNION OF AMERICA, CIO, or any other labor organization of our
employees, by discharging or refusing to reinstate any of our
employees, or by discriminating in any other manner with regard
to their hire and tenure of employment, or any term or condition
of employment.
WE WILL NOT apply or enforce our rule against solicitation, or
any other plant rule, in.a manner so as to discriminate against
our employees 'because .of their union. affiliation, activities, or
sympathies.
WE WILL No-r interrogate our employees in any manner con-
cerning their union affiliation, activities, or sympathies, or
threaten them with discharge or other economic reprisal because
of their union affiliation, activities, or sympathies.
WE WILL NOT threaten employees that we will close our plant or
take other economic reprisals against our employees if they join
TEXTILE WORKERS UNION OF AMERICA, CIO, or any other labor
organization, or if a majority of our employees select a new
labor organization to represent them in collective bargaining.
9In the event this Order is enforced by a Decree of the 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."
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organiza-
tion, to form labor organizations, to join or assist TEXTILE
WORKERS UNION OF AMERICA,' CIO, or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose. of
collective bargaining or other mutual aid or protection, or to
refrain from any or all of such activities, except to the extent
that such right may be affected by an agreement requiring mem-
bership in a labor organization as a, condition of employment,
as authorized in Section 8 (a) (3) of the Act.
WE WILL OFFER to the employees named below immediate and
full reinstatement to -their former or substantially equivalent
positions without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any loss
of pay suffered as a result of the discrimination :
Lewis Crabtree Robert E. Newhart
All our employees are free to become or remain members of the
afore-mentioned union, or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employees because of member-
ship in or activity on behalf of any such labor organization.
THE MAGEE CARPET COMPANY,
Employer.
By -----------------------------
(Representative ) (Title)
Dated--------------------
This notice must remain posted for 60 consecutive days from the
date hereof, and must not be altered, defaced, or covered by any other
material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
John H. Garver, Esq., for the General Counsel.
Frank F. Truscott, Esq., 929 Land Title Building, Philadelphia, Pa., and
John F. Dumont, Esq., Stanton Building, Little Falls, N. J., for the Respondent.
• Charles Sobol, 203 East Northampton Street, and Alban P. Lamer and Samuel
J. Fiore, Esq., 3 South Washington Street, Wilkes-Barre, Pa., for the Union.
• Joseph M. McNerney, Esq., 331 Pine Street, Williamsport, Pa., and H. E. Bailey,
Esq., First National Bank Building, Bloomsburg, Pa., for the Intervenor.
STATEMENT OF THE CASE
Upon an amended charge filed on February 3, 1949, by Textile Workers Union
of America, CIO, herein called CIO or the Union, the General Counsel of the
National Labor Relations Board, called herein respectively the General Counsel
MAGEE CARPET COMPANY 109
and the Board, by the Acting Regional Director of the Fourth Region (Phila-
delphia, Pennsylvania),. on August 30, 1949, ` issued a complaint against the
Magee Carpet Company, herein called the Respondent, alleging that the Re-
spondent had engaged in and was engaging in unfair labor practices affecting
,commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6)
and (7) of the Labor Management Relations Act, 1947, herein referred to as
the Act. Copies of the complaint, the amended charge upon which it was based,
together with notice of hearing thereon, were duly served upon the Respondent
.ind the union.
With respect to unfair labor practices, the complaint alleges in substance:
(1) That since on.or about January 24, 1949, to the date of the complaint the
Respondent, by certain named officers, agents, and employees in violation of
:Section S (a) (1) of the Act, interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act by:
(a) threatening and warning its employees to refrain from assisting, supporting,
becoming members of or remaining members of the Union; (b) interrogating its
employees concerning their affiliations with and interests in the Union; and
(2) that in violation of Section 8 (a) (1) and (3) of the Act, the Respondent
dlischarged Lewis Crabtree on or about January 30, 1949, and Robert E. Newbart
on or about February 1, 1949, and has since refused and failed to reinstate
them, thereby discriminating in regard to their hire and tenure of employment
in order to discourage membership in the Union. In its answer the Respondent
n dmitted certain allegations of, the.complaint but: denied the commission of any
unfair labor practices.
Pursuant to notice a hearing was held in Bloomsburg, Pennsylvania, on No-
vember 29, 30, and December 1, T949; and from January 31 to February 3, 1950,
inclusive, before W. Gerard Ryan, the undersigned Trial Examiner, duly desig-
nated by the Chief Trial Examiner. During the hearing, as a matter of dis-
cretion, I granted the motion of the Textile Workers Alliance of The Magee
Carpet Company to intervene as a party but limited participation to such matters
as may affect the rights of the Intervenor.'
All parties participated in the hearing and were afforded full opportunity to
be heard, to examine and cross-examine witnesses , and to introduce evidence
bearing upon the issues . At the close of the General Counsel's case-in-chief, after
argument by the Respondent in support of its motion to dismiss the complaint,
I denied the motion. At the conclusion of the testimony, the parties were af-
forded opportunity to argue orally and to file briefs, proposed findings of fact,
and conclusions of law. The General Counsel and the Respondent argued orally
on the record. The Respondent moved for dismissal of the complaint for failure
of proof. That motion is now denied. The General Counsel 'did not file a
brief. A brief has been received from the Respondent.2
.
1 At the hearing the General Counsel introduced testimony concerning the conduct of the
elections whereby officials of the Textile Workers Association were elected . At -that point,
as a matter of discretion , I granted the motion made by counsel for the association to
intervene . Intervention was limited solely to the protection of'the rights of the Intervenor
with respect to the situation involving the conduct of such elections . Thereafter , towards
the close of the hearing , I granted the motion by the General Counsel that such questions
and testimony be stricken . Later, when the Intervenor by an offer of proof sought to
introduce evidence regarding the steps taken by the Intervenor under its grievance pro-
cedure purportedly on behalf of the dischargees, I rejected the offer of proof, stating that
in my opinion the present state of the record did not require any, participation by the
Intervenor.
2 The time for filing Respondent 's brief was duly, extended until March 20, 1950.
110
c
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the entire record in the case, and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT 3
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a Pennsylvania corporation and at all times material herein
has continuously engaged in the manufacture, sale, and distribution of carpets,
rugs, and yarns, at its plant in Bloomsburg, Pennsylvania, where it maintains
its principal office and place of business. Respondent, in the course and conduct
of its business, uses raw materials, consisting principally of wool, cotton, and
jute, valued at in excess of $10,000,000 annually, of which it causes and has
continuously caused in excess of 75 percent annually to be purchased, delivered,
and transported in interstate commerce from and through States of the United
States other than the Commonwealth of Pennsylvania to its Bloomsburg plant,
and has manufactured, sold, and distributed finished products valued at in excess
of $18,000,000, of which it causes and has. continuously caused in excess of 75
percent annually to be supplied, delivered, and transported in interstate com-
merce to and through States of the United States other than the Commonwealth
of Pennsylvania from its Bloomsburg plant. The Respondent admits and I find
that at all times material herein it has been and still is engaged in interstate
commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Textile Workers Union of America, CIO, is a labor organization admitting to
membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
In the Respondent's entire plant approximately 1,700 employees are employed,
exclusive of office help. In January 1949, approximately 118 weavers were
employed.
For several years the Respondent has had a contract with Textile Workers
Alliance of The Magee Carpet Company to which approximately 1,400 employees
belong. The record refers to that association at times as Alliance and at times
as TWA.
The supervisory personnel consisted of Harry L. Magee, president ; James
Law, vice president, and general manager ; John Lyle, superintendent ; Harold
(Speb) Lunger, foreman on first shift and also foreman of the entire Axminister
weave department; James Lowell, foreman on the second shift. In addition,
there were approximately 15 subforemen (including Margita and Basil Cotner)
who are loom fixers, assigned throughout the weave department on the basis of
1 loom fixer for every 8 or 9 looms.
While there had been some talk about the Union for a few months prior to
the events herein there is no evidence in the record as to any other union activities
with respect to Respondent's plant except the activities of Lewis Crabtree and
Robert E. Newhart who were summarily discharged for soliciting memberships
for the Union.
2 In making the findings herein, I have considered and weighed the entire evidence. It
would needlessly burden this Report to set up all the testimony on disputed points. Such
testimony or other evidence as is in conflict with the findings herein is not credited.
MAGEE CARPET COMPANY 111
B. The discriminatory discharges of Lewis Crabtree and Robert E. Newhart
1. Lewis Crabtree
Lewis Crabtree was continuously employed by the Respondent as a weaver
in the Axminister rug department from early 1941 until the date of his discharge
on January 30, 1949; excepting the period of his military service from June
1942 until January 1946. His foreman was Harold F. Lunger and John Lyle
was superintendent. Crabtree worked on the first day shift from 7 a. M. to
3p.m.
During the week preceding his discharge, he had in his possession application
cards for membership in the Union, which he distributed on Tuesday, Wednes-
day, Thursday, and Friday of that week to fellow employees in the mill. To
some, he gave cards who came to him at his loom ; during the smoking period
from 12 noon to 12: 15 p. in. he "talked union" and gave out cards to those who
asked for them ; he talked to his fellow employees and gave cards to whomever
he was talking to at the moment. As Crabtree stated, "if my loom was broken
down, I would go around while I was looking for the fixer or waiting for my
loom to be repaired and the fellows would sign the cards."
On Friday, January 28, 1949, about 10•:30 or 11 a. in. Basil Cotner, subfore-
man and loom fixer (concededly a supervisor), reported to Foreman Lunger that
Crabtree was soliciting and leaving his loom during working hours and that he
also had some cards in his hand. Lunger specifically testified that Cotner did
not tell him that Crabtree was soliciting for the CIO, but Lunger "imagined"
it was for the CIO, for there had been talk of CIO for several months.
After lunch, Lunger went upstairs to Superintendent Lyle and told him that
Cotner had reported that Crabtree was soliciting during working hours and
leaving his loom. 'Lyle testified that he asked Lunger for what union Crabtree
was soliciting and Lunger replied that Cotner told him it was for the CIO.
Lyle then asked Lunger if be had seen it and when Lunger admitted he had not
seen it, Lyle instructed Lunger to return downstairs and keep his eyes open.
Although Lunger did keep his eyes open for the rest of the afternoon he saw
nothing and nothing happened, except that he did see Crabtree speak to employee
Robert E. Newhart at the time the shift changed at 3 p. in. when Crabtree was
leaving work and Newbart was coming in to begin work on the second day
shift, 3 to 11 p. in. The record does not disclose what Newhart and Crabtree
said to each other.
During that same afternoon, Harry L. Magee, president of the Respondent,
telephoned to Lyle to inquire if Crabtree worked for him and what shift he
was on. Lyle replied that Crabtree worked on the day shift and Magee then
requested Lyle to bring Crabtree to Magee's office so that Magee could talk to him.
At 6 p. in. that same day, Crabtree was interrupted while eating his supper
by a telephone call from Lyle who said that Magee would like to see Crabtree
at Magee's home immediately. Crabtree protested he was still in his working
clothes and wanted time to clean up and change." Lyle replied that was not
necessary as he too was in his working clothes. But Crabtree observed to Lyle
that Lyle's working clothes constituted a suit of clothing, a shirt and tie, while
Crabtree was dirty and would like time to change his clothes. So it was agreed
that Lyle would call by in his automobile within 20 or 30 minutes. Within
Crabtree had never before been to Magee's home.
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that time, Lyle came for Crabtree and they drove in Lyle's automobile to Magee's
office across from his home.'
Upon arrival at Magee's office, Magee was not there so Lyle left Crabtree in
the office and went out to locate Magee. Lyle found Magee at supper with his
family and Magee informed him that he would be there in a minute. When
Magee joined Lyle, Lyle inquired "What's this all about?". Magee-said "I heard
this fellow was doing some soliciting during working hours and he has been
breaking our company rules. I want to ask him. I want to give him a chance
to say he did or didn't." Lyle then pointed out to Magee that the personnel man
was out of town and suggested that Magee should wait but Magee replied that
he would not. Then Lyle said, "What about our General Manager, he ought to
be here, then?" Magee replied, "No, he is at a hospital board meeting; we
couldn't touch him tonight. I think we will be all right for what I have to say
to him." Thereupon Magee and Lyle entered the office and Lyle introduced Crab-
tree to Magee. Crabtree was told to be seated behind the desk. Magee took up
a position in the corner of the room, looked at Crabtree, and said,
If what I am about to say is not true, I will apologize, however, if it is,
I am going to lay my cards on the table. I understand that this afternoon
on the plant you went down aisle offering the workers an opportunity to
sign up for the CIO.
Crabtree replied, "That's right, sir." Magee continued :
Well, since that's the case, I will tell you this : I will never allow anyone
to work in my mill who believes in CIO ; but before I would let any union,
A1'L, CIO, or even TWA tell me how to run my plant, I'd shut it down.
If you and. the rest of the men in my mill who have signed cards continue on
with what you are doing, I'll shut the mill down. And I am in a position
to do so.
Magee continued to state that he was his own board of directors, controlled over
90 percent of the stock and could do it and asked Crabtree what would the town
of Bloomsburg be without The Magee Carpet Company. Magee then told Crab-
tree that he would give him until 7 or 7: 15 o'clock Monday morning to change
his (Crabtree's) mind; that if Crabtree decided to give up working for CIO he
could continue working but if not, he-would be fired. Magee told Crabtree that
he wanted to set him straight and that Magee would never allow him or any
other bastard in the mill who had signed a union card to work in the mill and
that Crabtree would tell that to that bastard at the Hotel Magee.' According to
Crabtree, Magee then said that before he would let him work in his mill, feeling
the way Crabtree did at that time, he would rather shoot him.' Magee informed
Crabtree that the CIO was the next thing to communism ; that he could not
understand why any of his workers would be interested in having a CIO union
when be, down through the years, had been giving them everything that he pos-
Magee's residence is several blocks distant from the mill . In addition to an office in
the mill , Magee has an office in one part of his garage across the street from his home.
° Walter Ellis, international representative of the Union, was then staying at the Hotel
Magee.
' Lyle, who was present at the conversation, testified that Magee said, "Before I'd
allow anybody to come here and undermine my organization , I'd shoot the works first,
because these men have already said what they wanted , and I am going to stand by the
men." Lyle said that Magee had reference to the organization representing the men in
the plant known as the Textile Workers Alliance.
MAGEEI CARPET COMPANY 113
sibly could; that he did not see where they would benefit any-that with the
setup that they at the present time, they were only paying the maximum of
$3 per year for dues and with the CIO they would be compelled to pay $4 per
month. Crabtree took issue with Magee on the amount of dues, stating the CIO
clues were $2 per months Then Magee turned and said to Lyle, who had not
until then participated in the conversation, "Take him home. My instructions
to you are that if between 7 and 7: 15 Monday morning, he feels the same then
as he does now, take the bastards through payroll and get him out of the mill.
He will never work in The Magee Carpet Mill again as long as he lives.10
Upon terminations of the conversation, Lyle drove Crabtree home. During
the ride, Lyle remarked to Crabtree that it was a shame that a fellow with
Crabtree's intelligence, with a wife and a child, and who was also buying a home
should become involved in something like this and that he,could not understand
it. - Lyle continued that he could not see where having an outside union would
benefit them in any way to which Crabtree replied that it was a debatable ques-
tion and that he felt he could show Lyle proof that wages and working conditions
could be improved. In parting, Lyle said, "Well, Lewis, I am sorry this had to
happen, but, think of the offer and come back to work Monday morning and
behave yourself." "
On the second day following the above events, Sunday, January 30, Homan,
the personnel director of the Respondent telephoned to Lyle about noontime that
there was an advisory board meeting at Magee's office and they wanted Lyle to
be present at 4: 30 o'clock that afternoon. Lyle arrived at the meeting at
approximately 6 p. in. Those present constituting the advisory board or com-
mittee were Magee, president ; James Law, vice president ; Frank Groat, designist ;
Norman Hoffman, plant engineer ; Ralph Homan, personnel director ; and Leonam d
Bason, assistant personnel director.12
8 Lyle testified that this talk regarding the dues was as follows :
Magee : Your dues are $3 a year, and you are going to pay $4 per month.
Crabtree : $2.
Magee : $4.
Crabtree : $2.
9 Magee denied he used profanity (luring the conversation with Crabtree or that he threat-
ened to shoot Crabtree . I find it unnecessary to make any finding whether he used pro-
fanity or not , since it is immaterial in view of the entire record . I do find , however, that
Magee did not threaten to shoot Crabtree. I believe Lyle's version that Magee said he
"would shoot the works " to be the correct one and that Crabtree misunderstood what
actually had been said on that point.
10 Lyle testified that Magee said to Lyle : "John, I am going to give you an order. You
are going to take this man, if he hasn ' t changed his mind on soliciting by 7 o ' clock on
Monday morning , you are to take his button off him and you are to give him a discharge
slip . He will be no longer an employee of The Magee Carpet Company ." Lyle testified
further that Magee concluded the meeting by saying "(that is all I have to say to you, and
good night, Lewis, I'm sorry ; and you have until 7 o'clock on Monday morning to change
your mind whether you are going to solicit any more or not."
11 Lyle testified that during the ride home he inquired from Crabtree what it was that
"brought it all on" and further reminded Crabtree that he had until 7 o'clock Monday
morning to decide "whether you are going to solicit any more." Then Lyle chided Crab-
tree for not discussing this with Crabtree 's wife saying "That's the trouble with you
fellows-you don't have enough confidence in the intelligence of your wives , and you don't
give them a chance to help you out " adding "maybe that situation lots of times would not
be what they are."
11 Lyle was not a member of the advisory committee . The only other meeting of the
committee he had ever attended was one several years before which pertained to the
purchase of machinery.
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lyle testified as to the events of the meeting:
We were talking basketball, and I sat there quite a while, and finally we
got to discussing the discharge of Lewis Crabtree, whether he should or
should not be discharged right away, because he definitely broke a mill
policy, and owing to the fact that Mr. Magee, our President, had given hvm
until seven o'clock Monday morning to change his mind as to whether he
was going to continue soliciting any more or not, which took quite a while
to decide that. And finally the Advisory Board decided that they'd take
it out of Mr. Magee's hands and act accordingly to what we term our "Mill
Policy", pertaining to people leaving their work during working hours,
leaving their machinery, or whatever the line of duty is. Then they decided,
then, that they should give Lewis his discharge slip, and that's it." (Em-
phasis supplied.)
After the decision to discharge Crabtree without further delay had been
arrived at, Law then inquired from Lyle what had been his procedure in giving
discharge slips and Lyle replied that he would have Lunger, the foreman, deliver
it to Crabtree since the foreman always gives discharge slips, if any had to be
given, or notice for bad work or reprimands.
At this point in the record, Lyle testified in answer to a question by General
Counsel inquiring what is meant by the term "company policy" that when a man
gets out of his line of duty, it is then a question whether he has obeyed company
policy ; and that "company policy" also includes such matters as bad work,
leaving machinery, absenteeism, going from one department to another without
permission, or going home when ill, instead of reporting to the dispensary first.
Lyle further testified concerning the established regular procedure to be followed
in cases where employees are discharged. Lyle stated that an employee gets
several notices, warning him that if his type of work continues it will warrant a
reprimand, which he gives to almost every man before discharge and that in
95 percent of the cases Lyle looks at the work personally to see whether or not
discharge is warranted. Lyle has been superintendent for 20 years and there
has been an advisory committee for the past 5 or 10 years and, to his memory,
there has been only one case where an employee was discharged by the order of
anyone superior to Lyle and that happened in 1945 while Lyle was ill in the
hospital when the personnel director issued a discharge slip to an employee for
striking another employee.
Following the decision to discharge Crabtree, a discharge slip was typed out
and because it was Sunday, the date inserted was for Saturday, January 29.
Lunger was summoned to Magee's office and directed to deliver the discharge
notice to Crabtree." Lunger tried unsuccessfully to reach Crabtree by telephone
and then drove with Lyle to Crabtree's home, where, at 10 o'clock, that Sunday
evening, Lunger handed to Crabtree the discharge slip with the reason thereon
stated to be :
Union activities for a nonrecognized union during his working hours
In his testimony, Magee admitted that he told Lyle to bring Crabtree to his
office and that after they arrived at approximately 6: 45 p. in. the first question
he asked Crabtree- was "was he soliciting for the CIO on company time when
"Lyle told Lunger that there had been a meeting of the advisory group with President
Magee and it had been'decided to discharge Lewis Crabtree for soliciting membership
in the CIO during working hours.
MAGEE, CARPET COMPANY 115
he knew it was against the mill policy?" When Crabtree promptly answered
that he did, Magee questioned him :
Now, maybe you don't know what I am trying to inquire of you. I asked
you whether you were soliciting, knowing that it was a company rule that
you were breaking and that you were soliciting for the CIO?
Crabtree replied that he was well aware of the original question and answered
in the affirmative.
Magee was then asked on direct examination by his counsel :
Q. Did you say to Mr. Crabtree that during the course of this conversation
that you had with him-again referring to Friday, January 28, 1949,-that
you would never allow anyone to work in your mill who believes in CIO?
Magee replied :
A. I think that the answer to that question might be given that possibly
it's been misinterpreted up to the present time. I told Lewis. Crabtree at
the time that I was against the CIO and I was against any other outside
union because of the fact that we had the Textile Workers Alliance of The
Magee Carpet Company, which is an independent union ; and that while I
wasn't particularly gunning for the CIO itself, I was against any union,
be it CIO, or AFL., and I don't believe that f particularly stressed that I
disliked the CIO or the AFL-although it is actually a fact that I do, and
I make no bones about it. But I brought out the fact that it didn't make
much difference to me whether Lewis Crabtree or any other employee was
soliciting at the mill, regardless of whether it was for a union activity or
any charity, that it was against the mill policy and the mill rule, and that
it was for that reason he was being given an opportunity to reconsider as
to whether or not he was interested in bringing in another bargaining agent
which I thought he was attempting to do at the time and from the informa-
tion that I had been given.
Magee, it should be noted, denied that Lyle attended the meeting Sunday evening
of the advisory board or committee. Magee testified "I did not mention Mr.
Lyle's name because he was not there. Mr. Lyle was in an outer office at the
time and was not brought in."
Magee in his testimony stated that the matter of Lewis Crabtree was discussed
at length at the meeting. In this respect he stated :
We discussed it at length, and from all angles and what was best for not
only the company, for the breaking of its rules, but also as to whether or
not it was advisable to permit a condition to continue which at that time
we all concluded was more or less of an incident incited by Crabtree ; and
as a result of that conclusion Crabtree's dismissal was authorized. And
Mr. Homan was further authorized to carry it out and see that it was
executed.
On cross-examination, Magee denied that he used any profanity that Friday
night during his conversation with Crabtree. Magee was then asked what was
the incident to which he had referred as being incited by Crabtree, which the
advisory committee considered warranting his discharge . Magee replied:
A. If I tell, you will throw, it out of the testimony. It was propaganda by
the CIO.
Q. Is that the incident?
917372-31=vol. 91-9
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. That's the incident.
No further light as to what such incident may have been appears in the record.
2. Robert E . Newhart
Newhart was employed as a weaver from March 25, 1946, until his discharge
on February 1, 1949, on the second day shift, 3 p. in. to 11 p. in., in the Respondent's
Axminister weave department. His foreman was James Lowell and John Lyle
was the superintendent.
On Tuesday, January 25, 1949, Newhart first obtained union cards from the
Union at noontime and took them into the mill at the beginning of his shift at
3 p. in. On both days, January 25 and 26, he passed out a total of 15 cards.
Although he distributed the cards, he did not "sign up" any members in the mill.
He passed out the cards upon entering the mill at 3 p. in. in the register hall"
before going into the mill, in the toilet during smoking time, and also any time
during working hours that he talked to fellow employees at his loom, or at their
looms, while he was seeking a loom fixer. Newhart testified that while these
activities were during "working hours" he did not consider it "company time"
since he was not paid for the time his loom was not in operation, e. g., when he
was hunting for a loom fixer, or smoking period, or going to the toilet. Neither
did he consider it on company time if it did not cause loss of production. He
did not pass out any cards on 'Friday, January 28, or Monday, January 31"
.On January 25, he spoke to several weavers about joining the Union, includ-
ing Stetler, Swisher, File, Ferase, Miller, Shuman, Mericle, Boone, and Bardo.
On some occasions, Newhart's loom was in operation, on other occasions, the
loom was not operating, and employees in the vicinity would group around and
talk. There was a distance of 4 feet between looms and each operator would
step about 2 feet from the front of his loom. On January 25, he had, trouble
with the beam dropper on his loom, i. e., the weights on the warp were dropping
so Newhart shut his machine off and found Margita, the loom fixer, fixing Bardo's
machine. After Margita said he would be there in a few minutes to fix Newhart's
machine, Newhart spoke to Bardo about the Union. He also spoke to Boone on
the same day but did not recall whether it was on the way over to Bardo's loom
to speak to Margita, or on the way back to his own loom. Newhart also spoke
to Fritz for 3 or 4 minutes, while Fritz' loom was in operation. After Fritz said
he had not seen the loom fixer, Newhart approached him about the Union. Also
on January 25, in addition to weavers, Newhart also asked some of the floor help
-to join the Union, including Keefer and Young.
On January 26, Newhart who was operating a 12 quarter loom making 9 by 12
rugs had what is known as a "set-off." Usually regular chain hangers take out
the old set from the loom and put in a new set. It takes 2 or 3 hours before the
loom is operating again on the new set. If no chain hangers are available, some-
times the weavers pair up and put the set in themselves ; or a weaver may get
a man from upstairs to help put the new set in. Newhart with the help of the
man from upstairs put in the new set for which Newhart was paid on a time
basis.16 To put in a set it was necessary for Newhart to leave his loom, go up-
stairs on an elevator, get a full truckload of frames, and return to the loom.
14 The register hall is the entrance to the mill where formerly all employees would regis-
ter at the time clocks , on entering or leaving the mill . Although now each department
had individual time clocks, it is still referred to as the register ball.
's The mill operates on a 5-day week , Monday through Friday.
16 When the loom is operating , the weaver is paid on piece-work basis depending on the
number of picks recorded.
MAG'EE+ CARPET COMPANY 117
Five or six trips by truck are necessary. During such time, the weaver may
eat lunch if lunch time comes, or go for if drink, or to the toilet for a smoke.14
On January 26, there was, some part of the old set left on the loom and New-
hart called his foreman whose duty it was to judge whether or not the set
should be called off.18 During the time he was putting in the set on January 26,
Newhart talked to fellow weavers about joining the Union but could not recall
their names. After a new set is put in a loom, the weaver runs half a rug and
then must stop the loom and have the loom fixer adjust the weight on the loom.
After running half a rug, Newhart accordingly stopped his loom after the new
set was put in and went to find Margita, the loom fixer, to check the. operation
before operating the loom further. On his way to find Margita, Newhart asked
William Haney at his loom, and Fred Fritz at his loom, where Margita was.
When each replied that he did not know, Newhart spoke to each of them about
the Union.
On Friday evening, January 28, at the end of the second shift, (11 p. m.)
Foreman Lowell reported to Lyle that Newhart is doing some soliciting, too.
Lyle asked Lowell if he had seen it and when Lowell replied that he had not
seen it, Lyle told him "Then you are not sure; it's only a rumor, unless you
see it. I don't want rumors, this is too important." Then Lowell told Lyle
the names of those whom he said had been approached by Newhart. Lyle
testified that is where he got the information of whom to see in regard to those
solicited by Newhart on the second shift.
On Saturday morning, Lyle called Lunger and said lie had a rumor handed
to him that Newhart had been doing some soliciting and inquired if Lunger
had heard anythirig. Langer replied that tie had not. .
On Monday, 5anuary 31, Lyle told the personnel man for the Respondent that
Crabtree had stated he was not the only one soliciting and then Lyle told the
personnel man that if there is somebody else such would have to be treated just
the same as Crabtree was treated, because "what you do to one you have to
do to another." Then Lyle again talked to Lunger and said "Look, we are
going to have to look into this thing a little bit."
About 4: 15 p. in. Tuesday, February 1, Lunger came to Newhart who was
operating his loom and said "Bob, shut off your loom and take your hat and
your coat and your tool box and your dinner box and come over to the class
loom, Mr. Lyle would like to see you and talk to you." Newliart asked Lunger
about his picks, and Lunger told him to mark them down and Lunger would get
them later.
In the class room were Lyle, Homan, Bason, and Lunger. Lyle said :
Bob, I understand that you were going through the mill soliciting mem-
bership for the CIO on company time, is that right?
Newhart said, "No, sir," that he did not solicit membership for the Union on
company time, but told Lyle that he did have blue cards in his possession. Lyle
asked, "When did you pass those cards out?" Newhart answered that he passed
them out in the register office, before going to work, in the toilet during smoking
time, in the register office after work, and any time at his loom that somebody
happened to ask for one or when someone stopped at his loom and he talked to
thrin and remarked about it. Newhart denied that it was true that he had signed
them up during working hours. At that point Homan, Bason, and Lunger left
the room. Then Lyle continued, "Didn't you know that you were doing wrong
17 The weavers eat their lunch in front of their looms which continue in operation.
18 Foreman Lowell did not testify.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in doing this thing?" and when Newhart replied that he did not think he was
doing any wrong , Lyle said ,. "You didn't think you were doing wrong soliciting
members on company time ?" Newhart answered "I didn't do it on company
time." Lyle said , "You were soliciting," to which Newhart answered that if
you call it that, then that is what he was doing . Lyle again inquired if Newhart
did not know that was wrong and Newhart replied : "No , sir. I saw other people
soliciting in the mill for baseball tickets and pools and I was soliciting for the
union and wasn't hurting anything." To which Lyle answered , "That's entirely
against our mill policy." Lyle then received negative replies from Newhart as
to whether he had been working with Crabtree or had talked things over with
Newhart' s wife. Then Lyle said that it is a good thing for men to talk things
.over with their wives , because "they are a disinterested person, and they can
-help us an awful lot in these things," and further stated that it was a shame a
young fellow like Newhart , with a family, "getting mixed up in a thing like this."
Lyle asked Newhart what made him get started in this thing and asked, "Was
the union down to see you?" When Newhart replied in the affirmative, Lyle
wanted to know how many there were and Newhart told him "a couple." Lyle
pursued his inquiry by asking "How often ?" Newhart replied about eight or
nine times . Then Lyle opined , "They more or less hounded you until you brought
the cards in the mill ?" Newhart answered "Yes, you can call it that."
At this point , Bason, Lunger, and Homan returned to the room and Homan,
addressing Lyle, announced , "Well, John, three of them still tell the same story."
It was then announced to Newhart that since he had done the same as Crabtree,
he would have to be discharged . Then Newhart showed them his record book
which he had kept from his first day in the mill in which he had noted the hours
worked, the dates , the number of the loom he was operating , the rugs, the picks,
the pattern numbers, etc ., and Newhart stated to them that if he had been
soliciting membership on company time as they claimed, his records would show
a loss of both rugs and money for the end of the week. Homan looked through
the book, passed it to Lyle who glanced through it and then Homan said "Well
Bob, I am sorry , but we will have to give you the slip anyway. If we find that we
are wrong later, we will take you back and you will be paid for the time that you
lost." Newhart was thereupon given a discharge slip dated February 1, 1949,
which recorded the reason for his discharge "Union activities for a non-recognized
union during his working hours."
3. The Respondent ' s defense
In its answer , the Respondent denied that Crabtree and Newhart were dis-
criminatorily discharged and averred the discharges were for cause.
The Respondent introduced evidence and I find that Crabtree and Newhart
had solicited union membership during working hours and on company time, at
least on the occasions when they spoke to other weavers whose looms were in
operation 19 Other solicitations by them occurred in the mill during their free
time, such as entering or leaving the mill, during smoking periods, etc., which
of course was clearly permissible. The Respondent in its brief concedes that
" There is no proof that such talk was responsible for any loss of production on the
part of those to whom Crabtree and Newhart talked. Neither is there any proof that the
production of Crabtree and Newhart suffered. The inference to be drawn from Newhart's
testimony is there was none. There wa3 only a slight difference in the number of "picks"
recorded for Crabtree for the weeks ending January 23 and January 30 which could have
:resulted from minor breakdowns wherein the loom was shut down for less than 30
;minutes . In any event I find the evidence insufficient upon which to make any finding that
.there was loss of production on Crabtree 's part because of soliciting on company time.
MAGEE ' CARPET COMPANY 119
any rule which prohibits solicitation during nonworking hours, although per-
formed on company property is illegal. The Respondent bases its case sub-
stantially on the defense that the discharges were for cause in that both Crab-
tree and Newhart violated a "no-solicitation" rule during working hours' on
company time.
Conclusions
The entire evidence proves conclusively bias and animosity towards the Union
on the part of the Respondent. In the week preceding their discharges, Crab-
tree solicited memberships in the plant^ on Tuesday, Wednesday, Thursday, and
Friday ; and Newhart solicited on Tuesday and Wednesday. On Friday, Janu-
ary 28, Subforeman Cotner asked Foreman Lunger if he knew that Crabtree was
leaving his loom and soliciting for the CIO. When, a short while later, Lunger
reported to Superintendent Lyle, one of Lyle's first questions was "What union?"
Lyle, upon hearing that it was CIO, instructed Lunger to return to his depart-
ment and keep his eyes open. When Foreman Lowell reported that Newhart
was soliciting but that he had not seen him do it, Lyle said to him, "You are not
sure, it's only a rumor, unless you see it. I don't want any rumors, this is too
important."
No evidence was introduced to show the context of the rule against solicitation.
Lyle testified that the Company always had a no-solicitation rule and that it had
been posted in the mill. It is not denied that there was some kind of rule against
solicitation. But it is also clear from the record that the rule did not prohibit
talking among the weavers even while their looms were operating. Baseball
pools and lotteries were conducted during working hours, participated in by
supervisors.
When President Magee heard that Crabtree had been soliciting for the CIO,
he telephoned to Lyle to bring Crabtree to his home immediately. The matter
was of such urgency that Crabtree was interrupted at his supper, hardly given
time to change his clothes and was brought to Magee's presence by Lyle, after 6
p. in., on January 28. Magee questioned Crabtree as to whether he was soliciting
for the CIO on company time. Magee told Crabtree that he would never allow
anyone to work in his mill who believes in CIO and he would shut down the plant
before he would let any union, AFL, CIO, "or even TWA" tell him how to run the
plant." Magee continued in this vein by telling Crabtree he was in a position to
do just that, because he was his own board of directors and controlled over 90
percent of the stock. He delivered an ultimatum to Crabtree, giving him until
7 a. in. Monday, January 31, to change his mind on soliciting under penalty of
discharge. He ordered Lyle.who was present to discharge Crabtree if Crabtree
did not change his mind about soliciting by that deadline. It is clear from
Magee's testimony that the change of mind meant that Crabtree was to change
his mind about soliciting-not soliciting on company time for CIO or any other
purpose-but soliciting anywhere for the CIO, because Magee testified that
Crabtree had until Monday to reconsider bringing into the mill another bargain-
ing agent. Magee made no attempt to hide his animosity towards the Union.
In his testimony, he admitted it. He blandly stated without further expla-
nation that Crabtree was discharged because of an "Incident" and that incident
was "propaganda by the CIO."
Having given Crabtree from Friday night until Monday morning to change his
mind about soliciting for the CIO, and bringing another bargaining agent into his
mill, Magee apparently was fearful that he had given too muchtime to Crabtree
20 Magee denied these statements but his denial is not credited.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because on Sunday Magee called a meeting of the advisory board, which is com-
posed of the Respondent's top management officials. The advisory board after
discussion with Magee decided that Crabtree should be summarily discharged and
his notice personally delivered to him that Sunday night. Magee further testified
that he was fully aware of all the developments leading up to Newhart's discharge.
The record shows that the rule against solicitation, whatever its limit or extent
may have been was never enforced until Crabtree and Newhart began to solicit
for the Union 2' Nor is there any evidence to show that before that time any
employee was disciplined, let alone discharged, for its breach. It appears from
the record that whatever purported prohibitions there were including the item in
the instruction sheet given to weavers "Be at your loom at starting time-stay
until quitting time" were not generally applied. Foreman Lunger testified there
always was a "no-solicitation" rule hut the company is a nice place in which to
work ; there are lots of rules and regulations but "they don't cut your throat" if
you disobey them; that there were lots of baseball pools and lotteries sold during
working hours in which Lunger himself participated; that everyone was allowed
to talk to others and stated further that he has "talked plenty" to committeemen
of the Textile Workers Alliance about grievances and problems in his department.
When Lunger reported to Lyle that Crabtree was leaving his loom, Lyle imme-
diately inquired whether his loom had broken down "because we give them a lot of
liberties when the looms are broke down and so on." Another significant fact
pointing unmistakably to discriminatory motive on the part of the Respondent
is that unusual and drastic action culminating in discharge was substituted for
the regular established procedure otherwise followed in cases of discharge.
Under ordinary procedure an employee receives several notices warning him
that if the fault persists it will warrant a reprimand which Lyle stated he gives
to every man before discharge and in 95 percent of the cases, Lyle personally
investigates to see whether such discharge is warranted. In only one instance
was an employee ever discharged by one superior to Lyle, and that was when
Lyle was absent through illness. Lyle indeed must have had his own misgivings
about Magee's unprecedented action because he suggested to Magee that the gen-
eral manager and personnel director should be present when Lyle learned what
Magee had in mind immediately prior to questioning Crabtree.
Here, as in the Jaques Power Saw Company case 22 "the conclusion is inescapa-,
ble that the respondent's sudden and initial invocation of its long dormant rule
against solicitation stemmed not from any desire to maintain discipline or prop-
erly to enforce a reasonable plant rule-but to cripple the union
The Respondent in its brief maintains that Magee's statements to Crabtree
were protected as free speech under Section 8 (c) of the Act. In N. L. R. B. v.
Electric City Dyeing Co.,23 the Court said:
It is quite true that as the law stands at present, an employer may express
an opinion upon union organization as well as upon any other subject in
the world. But he cannot coerce, intimidate or give promise of benefit as
part of his opposition to a union program.
21 Foreman Lunger testified, "Because we don't allow soliciting during working hours . . .
never have allowed it. . . There is notices down there to that effect. The mill may be
pretty loose on the thing, as far as that goes, but there are notices down there to that
effect, that they are not supposed to leave their looms, and during working hours."
22 85 NLRB 440,, where the Board held the Respondent debased its existing rule against
solicitation, valid'in itself, to effectuate its unlawful objectives.
23 178 F. 2d 080 (C.. A. 3), decided January 11, 1950.
MAGEE! CARPET COMPANY 121
Magee's statements to Crabtree clearly contained threats of reprisal, were intimi-
dating, and coercive.
It is not contended here and there is no evidence that the Respondent's rule
against solicitation during working hours was initially adopted for a discrimina-
tory purpose. I am convinced and find that this rule forbidding solicitation was
discriminatorily enforced by the Respondent against the above-named employees
for the purpose of discouraging membership in the Union. The Respondent's
defense is accordingly rejected" I further find that the real reason for the
discharges of Crabtree and Newhart was their union activity and not for any
violation of the no-solicitation rule. In X. L. R. B. v. Robbins Tire and Rubber
Conapany'25 where, as here, the ground of the discharges seems not greatly serious,
the court stated, "When then the employer discharged them, he did so at the peril
of a finding by the Board that since the cause assigned was not one for which dis-
charges were ordinarily made, or even threatened, the employer's antipathy to
union membership, interest, or activity had tipped the balance in the scales of
causation and had become the causa causans, the real cause of the discharge."
Such discriminatory discharges herein I find were violative of the provisions of
Section 8 (a) (3) of the Act.
C. Interference, restraint , and coercion
The evidence is uncontradicted that the Respondent interrogated its employees
concerning union activities. Employees throughout the plant were interviewed
and asked if they had been solicited to join the Union, if so, when and by whom
and whether the employee had become a member. The number of such employees
is indeterminate. When Newhart was in the classroom, Langer, Bason, and
Homan went out to the weaving department and returned with the information
that three employees still tell the same stories that Newhart had solicited them
for membership in the Union. Lyle interrogated Newhart and Crabtree closely,
as has been detailed, supra. Such interrogation by the Respondent was an in-
vasion of the employees' rights under Section 7 of the Act.20
I accordingly find that the Respondent in questioning its employees concerning
their union membership, activities, or sympathies violated the provisions of
Section 8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in Section III, above, occurring
in connection with the operations of the Respondent described in Section I,
above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
24 See , for example, the following cases involving various aspects of discrimination in
the enforcement of a valid no-solicitation rule : N. L. R. B . v. Continental Pipe Line Com-
pany, 161 F . 2d 302 , 303 ; N. L. R. B. v . American Furnace Co ., 158 F. 2d 376, 379;
N. L. R. B. v. Gallup. American Coal Co., 131 F. 2d 665, 667; Victor Manufacturing and
Gasket Company v. N. L. R. B., 174 F. 2d 867 ; N. L. R. B. v. Illinois Tool Works, 153
F. 2d 811; N. L. R. B. v. Fisher Governor Compa ny, 163 F. 2d 913; Hershey Metal Prod-
ucts Company , 76 NLRB 695 , 696; Citizen -News Company , Inc., 88 NLRB 1413.
s 161 F . 2d 798, 801.
20 See Standard-Coosa -Thatcher Company, 85 NLRB 1358 and cases cited.
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,
V. THE REMEDY
Having found that the Respondent has violated Section 8 (a) (1) and (3)
of the Act, I shall recommend that it cease and desist therefrom, and that it
take affirmative action designed to effectuate, the policies of the Act.
Having found that the Respondent discriminated against Lewis Crabtree in
regard to his hire and tenure of employment, thereby discouraging membership
in the Union by discharging Crabtree and refusing him reinstatement to a
weaver job on or about January 30, 1949, I shall accordingly recommend that
the Respondent offer to Lewis Crabtree immediate and full reinstatement to his-
former job as a weaver or a substantially equivalent position," without preju-
dice to his seniority or other rights and privileges ; and that the Respondent
also make the said Lewis Crabtree whole for any loss of.earnings suffered by
him by reason of the Respondent's discrimination against him, by payment to,
him of a sum of money equal to that which he normally would have earned as.
wages as a weaver from the date of the discrimination against him, January 30,.
1949, to the date of the offer of reinstatement, less his net earnings during that
period.'.
Having found that the Respondent discriminated against Robert E. Newhart
in regard to his hire and tenure of employment, thereby discouraging member-
ship in the Union by discharging Newhart and refusing him reinstatement to a.
weaver job on or about February 1, 1949, I shall accordingly recommend that
the Respondent offer to Robert E. Newhart immediate and full reinstatement
to his former job as a weaver or a substantially equivalent position,' without
prejudice to his seniority or other rights and privileges ; and that the Re-
spondent also make the said Robert E. Newhart whole for any loss of earnings
suffered by him by reason of the Respondent's discrimination against him, by
payment to him of a sum of money equal to that which he normally would have
earned as wages as a weaver from the date of the discrimination against him,.
February 1, 1949, to the date of the offer of reinstatement, less his net earnings
during that period 30
I believe that the unfair labor practices committed by the Respondent poten-
tially relate to other unfair labor practices prescribed and that danger of their
commission in the future is to be anticipated from the Respondent's past con-
duct. The preventive purpose of the Act will be thwarted unless my recom-
mendations are coextensive with the threat. Accordingly, in order to make effec-
tive the interdependent guarantees of Section 7 and thus effectuate the policies
of the Act I shall recommend that the Respondent cease and desist from in
any manner interfering with, restraining, or coercing its employees in the exer-
cise of the rights guaranteed by Section 7 of the Act.
Upon the foregoing findings of fact, and upon the entire record in the case,.
I make the following :
CONCLUSIONS OF LAW
1. Textile Workers Union of America, CIO, is a labor organization within
the meaning of Section 2 (5) of the Act.
"See The Chase National Bank of the City of New York, an Juan, Puerto Rico Branch,
65 NLRB 837. Also, Macon Textiles, Inc., 80 NLRB 1525.
29 Crossett Lumber Co., 8 NLRB 440, 497-498.
29 See footnote 27, supra.
20 See footnote 28, supra.
MAGEE ' CARPET COMPANY 123
2. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8
(a) (1) of the Act.
3. By discriminating in regard to the hire and tenure. of employment of Lewis
Crabtree and Robert E. Newhart, and thereby discouraging membership in
Textile Workers Union of America, CIO, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (3) of
the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]