Martel Mills Corp.

National Labor Relations Board - Board Decisions

Feb 23, 1940

20 N.L.R.B. 712 (N.L.R.B. 1940)

In the Matter Of MARTEL MILLS CORPORATION and TEXTILE WORKERS
ORGANIZING COMMITTEE
Case No. C-1216.-Decided February 23, 1940
Cotton Textile IntIustry-Interference , Restraint , and Coercion : anti-union
statements by superintendent of the_ mills; disparaging union members and
organizational activity-Discrimination : discharge of two employees for union
membership and activity ; discriminatory refusal to reinstate two other em-
ployees following non-discriminatory lay-off-Reinstatement Ordered : employees
discriminated against-Regular and Substantially Equivalent Employment:
employment at same rate of pay held not substantially equivalent in view of
difference in distance from employee ' s home, apparent loss of seniority rights,
and employee 's desire to be reinstated-Back Pay: awarded.
Mr. Marion A. Prowell, for the Board.
Mr. George Bell Timimerman, of Lexington, S. C., for the re-
spondent.
Mr. Ralph G. Simmerson, of Columbia, S. C., for the T. W. O. C.
Mr. Robert F. Koretz, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Textile Workers
Organizing Committee, herein called the T. W. O. C., the National
Labor Relations Board, herein called the Board, by the Regional
Director for the Tenth Region, (Atlanta, Georgia), issued its com-
plaint 'dated January 25, 1939, against Martel Mills Corporation,
Lexington, South Carolina, herein called the respondent, alleging
that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce, within the meaning of Section
8 (1) and (3) and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. A copy of the
complaint accompanied by notice of hearing was duly served upon
the respondent and upon the T. W. O. C.
With respect to the unfair labor practices, the complaint alleged,
in substance, that the respondent, on or about February 23, 1938,
20 N. L. R. B., No. 72.
712
MARTEL MILLS CORPORATION 713
discharged Buster W. Whittle, Mrs. Pinkie Whittle, D. B. Waits,
and, on or about May 3, 1938, discharged George P. Schwartz, and,
has fit all times thereafter refused to employ said employees because
of their membership in the T. W. 0. C. and because they had en-
gaged in concerted activities with other employees in behalf of the
T. W. 0. C. for the purposes of collective bargaining and other
mutual aid and protection, thereby discriminating in regard to the
hire and tenure of employment of these persons and discouraging
membership in the T. W. O. C.; that prior to and at all times since
May 1937, the respondent advised, urged, and warned its employees
not to join or assist the T. W. 0. C., and threatened said employees
with discharge and discrimination for joining the T. W. 0. C. or
engaging in activities in connection therewith; and that by the fore-
going acts, and by other acts the respondent has interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
The respondent in its answer admitted certain of the allegations
of the complaint concerning the nature of its business, but denied
the allegations of unfair labor practices, and made certain affirmative
averments with respect to the alleged discriminatory discharges.
The answer averred that the respondent had laid off the Whittles,
Waits, and Schwartz, and had refused the Whittles reemployment
for cause; that it had reemployed Waits; and that it had offered
reemployment to Schwartz who had refused said offer.
Pursuant to notice, a hearing was held at Columbia, South Caro-
lina, on February 2 and 3, 1939, before Charles E. Persons, the Trial
Examiner duly designated by the Board. The Board and the re-
spondent were represented by counsel and the T. W. 0. C. by a duly
authorized representative; all parties participated in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing upon the issues was afforded all
parties. At the close of the Board's case the Trial Examiner granted
a. motion made by Board counsel to conform the pleadings to the
proof. During the hearing the Trial Examiner made rulings on
other motions and on objections to the admission of evidence. We
have reviewed the rulings of the Trial Examiner and find that no
prejudicial errors were committed. The rulings are hereby affirmed.
Thereafter, the Trial Examiner issued his Intermediate Report,
dated March 13, 1939, copies of which were duly served upon the
parties, in which he found that the respondent had engaged in and
was engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of
the Act. He recommended that the respondent cease and desist
from its unfair labor practices and that it take certain affirmative
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
action, including the reinstatement of George P. Schwartz, Buster.
W. Whittle, Mrs. Pinkie Whittle, and D. B. Waits with back pay,
to remedy the situation brought about by the unfair labor practices
found.
On March 22, 1939, the respondent filed exceptions to the Inter-
mediate Report and requested oral argument before the . Board. On
April 27, 1939, the respondent filed a brief with the Board. Pur-
suant to notice a hearing for the purpose of oral argument was held
before the Board on October 10, 1939, at Washington, D. C. The
respondent was represented by counsel and participated in the argu-
ment; the T. W. O. C. did not appear. The Board has reviewed
the exceptions to the Intermediate Report filed by the respondent
and has considered the brief filed in support thereof, and in so far
as they are inconsistent with the findings, conclusions, and order set
forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, Martel Mills Corporation, a Delaware corpora-
tion with its principal office in New York City, operates seven cotton
mills. The present proceedings are concerned only with the mill
located at Lexington, South Carolina, herein called the Lexington
mill, at which the respondent manufactures ticking and hickory
stripes, and the mill located at Red Bank, South Carolina, herein
called the Red Bank mill, at which the respondent manufactures
white print cloth."
At the Lexington mill, the respondent, during 1938, used approxi-
mately $145,000 worth of raw materials and supplies, more than
50 per cent of which were purchased outside the State of South
Carolina and shipped to the Lexington mill by rail and truck ; and
produced approximately 2,800,000 yards of cloth, worth approxi-
mately $280,000, over 75 per cent of which were shipped to points
outside the State of South Carolina. At the time of the hearing the
respondent employed about 250 persons at the Lexington mill.
At the Red Bank mill, located in the country about 4 miles from
Lexington, the respondent during 1938 used approximately $182,000
worth of raw materials, more than 50 per cent of which were secured
outside the State of South Carolina, and shipped to the Red Bank
mill by rail and truck; and produced about 5,100,000 yards of white
1 The other mills are located at Batesburg and Valley Falls, South Carolina ; Asheville
and Charlotte, North Carolina ; and Egan, Georgia.
MARTEL MILLS CORPORATION 715
print cloth, worth approximately $300,000, over 75 per cent of which
were shipped to points outside the State of South Carolina. At the
time of the hearing the respondent employed about 275 persons at
the Red Bank mill.
II. TILE ORGANIZATION INVOLVED
Textile Workers Organizing Committee is a labor organization
affiliated with the Congress of Industrial Organizations, admitting
to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The lay-offs, discharges, and refusals to reinstate
Prior to June 1937 employees of the respondent were not organized
for the purposes of collective bargaining, although, as appears here-
inafter, in 1934 and 1935 the United Textile Workers of America,
hereinafter called the U. T. W. A., engaged in organizational activi-
ties at the Lexington and Red Bank mills and succeeded in obtain-
ing some applications for membership from employees of the
respondent. In June 1937 the T. W. O. C. began to organize em-
ployees at both mills and by February 1938 succeeded in enrolling as
members a substantial number. A local organization, membership in
which was restricted to employees at the Lexington mill, was set up
at the outset of the T. W. O. C. campaign. While the record does
not otherwise disclose what its activities were, it appears that the
grievance committee of the local consulted with C. C. Rush, superin-
tendent of the Lexington and Red Bank mills, five or six times prior
to, and during, February 1938.
In February 1938 the respondent was operating two 8-hour shifts
a day at the Lexington mill and three 8-hour shifts a day at the Red
Bank mill.' Near the end of February, the second shift at the Lex-
ington mill and the third shift at the Red Bank mill were discon-
tinued because of business conditions. At the Lexington mill, the
second shift was resumed on May 3, 1938, and a third shift was
added on November 19, 1938; at the Red Bank mill the third
shift was resumed on July 11, 1938.3
At the time of the reduction in personnel in February 1938, the
respondent dismissed Schwartz, who was employed on the second
2 The number of persons employed on each shift at the respective mills was approxi-
mately the same.
s The evidence with respect to the date on which the third shift was resumed at the
Red Bank mill is as follows : Waits testified- that it was resumed on July 11 , 1938, but
later testified that it was resumed on July 5, 1938 . Pinkie whittle testified that it was
resumed on "Monday after the Fourth of July. " July 4, 1938 , also was on a Monday and
it seems more likely that-July 11, 1938, is the correct date, and we so find.
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shift at the Lexington mill, and Waits, Buster Whittle, and Pinkie
Whittle, who were employed on the second shift at the .Red Bank
mill. While it is not disputed that economic considerations required
curtailment in the respondent's working force, it obviously does not
follow that the selection of the complainants as employees to be dis-
missed is to be thus accounted for.4 Nor does the respondent make
any such contention, but advances particular reasons to explain its
action in each case and offers specific reasons for the fact that
Schwartz and the Whittles were not reemployed and Waits was not
reemployed until November 28, 1938. While certain factors in each
of the cases are common, we will, for convenience, consider first the
case of Schwartz, then Waits, then the Whittles.
George P. Schwartz joined the T. W. O. C. on June 12, 1937. He
became recording secretary of the local organization then set up at
the Lexington mill ; served as a member of its grievance committee;
and solicited membership at the homes of approximately 18 or 20
employees. Rush testified .that he knew that Schwartz was a member
of the T. W. O. C.5
On February 14, 1938, when, as stated above, the respondent was
operating two 8-hour shifts a day at the Lexington mill, a notice was
posted stating that due to business conditions, operations would be
reduced to a single 24-hour a week shift "chosen, as far as possible,
on the basis of time worked here," and that, "If it can be done we
plan to have no more than one person chosen from each family." The
notice further stated that "in order to spread the work, while those
who will be cut off are getting located again," . . . the first shift
"will work . . . February 21st, 22nd, and 23rd," and the second shift
"will .work February 28th, March 1st and 2nd."
Schwartz, who was employed as a "smash hand" or "pick-out hand"
on the second shift, was laid off on March 2; his wife, who was em-
ployed. as a spinner on the first shift, retained her job. When
Schwartz was advised by Miller of his lay-off, Miller told him that
the respondent was "going to work one in a family so far as they
could."
On May 3, 1938, the second shift was resumed at the Lexington mill.
On this date and shortly thereafter, Schwartz applied to both Rush
4 See Matter of Jefferson Lake Oil Company, Incorporated and Sulphur Workers Local
Union No. 21195, 16 N. L . R. B. 355; Matter of Walter Stover, doing business under the trade
name and style of Stover Bedding Company and Upholsterers Allied Crafts Local Union No.
501, 15 N. L . R. B. 635; Matter of Commonwealth Telephone Company and Theodore R.
Siplon, Walter F. Seidler and International Brotherhood of Electrical Workers, 13 N. L.
R. B. 317; Matter of Servel, Inc. and United Electrical, Radio and Machine Workers of
America, Local No. 1002, 11 N. L. R. B. 1293, 1319, at seq.
5 During the general textile strike in September 1934, Rush shut down the Lexington and
Red Bank mills to allow employees to listen to organizers of the U. T. W. A. At the end
of the day the Lexington mill was shut down for 2 or 3 days. Schwartz, who had mean-
while joined the U. T. W. A., did not return to work until the general strike terminated
about 3 weeks later.
MARTEL MILLS CORPORATION 717
and Miller for reemployment. Rush told him that some positions
were. being eliminated ; that the respondent would try to take care 'of,
those persons who, as a result of the elimination of positions, had
lost their jobs; and that he would let Schwartz know if he could give
him employment. Miller told Schwartz that he would put him to
work as soon as he found a job for which he deemed Schwartz
qualified.
On May 22, 1938, Schwartz met Rush at the Lexington post office.
Schwartz testified that he and Rush had the following conversation :
I asked him [Rush] about getting-about giving me some work
back. I told him I would be willing to take anything I could
get, that I needed to work.. He said, "well, I will see." . . . I
said, "well, Mr. Rush, if I have said anything or done anything
against you or the company I would be glad if you would tell
me, because I would like to straighten it out." He said to me, he
said, "did you say anything like this, that the C. I. 0 .6 was
paying you $14 a week?" I said, "No, sir, I didn't say it."
I said, "they haven't paid me a dime." He said, "well, what
about people running you away from their homes soliciting
membership?" I said, "no, sir, they never have, that every
one that I have ever been to yet treated me just as nice
as they could when I went to their home." He called two names
[He said] "Mr. Pete Ivory had run me away from his home."
He said, "What about Mr. Henry Day?" I said, "No, sir."
He said, "Well, I will see. If there is anything I can give
you I will let you know," and I haven't heard anything yet.
Rush testified that on this occasion he told Schwartz that "in going
around soliciting these persons not to cause any disturbance [and]
have people running to me about it." Rush stated, on cross-examina-
tion, that he had received several complaints about Schwartz's organ-
izational activities; that he had questioned Pete Ivory about this; and
that "it could have been Pete that told me" that the C. I. O. was paying
Schwartz $14 a week. Schwartz's version of the conversation is cor-
roborated by the uncontradicted testimony of J. P. Mims, a member
of the T. W. O. C., who was laid off on February 23, 1938, from his
position on the first shift at the Lexington mill. While Mims was
applying, without success, for reemployment on July 5, 1938, Rush,
when asked by Mims, admitted that he knew of Mims' union mem-
bership and said, during their conversation, "I don't approve of
members of the union going around from place to place and antagoniz-
ing other people who don't belong to it and soliciting their member-
ship. It isn't right." We find, as did the Trial Examiner, that
Schwartz's version of his conversation-with Rush is correct.
6 The T. W. O. C. is frequently referred to in the record as the IT. I. O."
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On November 19, 1938, a third shift was employed at the Lexington
mill, but Schwartz was not among those hired by the respondent.
At the hearing Miller testified that Schwartz was laid off because
his work was not satisfactory and because there were two members
of the family employed by the respondent. Rush testified "we had a
lot of complaints about his [Schwartz's] work," but denied that he
had participated in selecting Schwartz to be laid off and stated that
the overseers handled such matters. However, Rush further testified
that he had obtained his knowledge of Schwartz's capabilities from
Overseer Miller, and when asked if "the two of you [Miller and Rush]
decided he would be selected for the lay-off," answered, "it was best
under the circumstances."
We shall first consider the contention that Schwartz's alleged ineffi-
ciency contributed to his lay-off on March 2, 1938. The only evidence
in the record in support of the contention that Schwartz was a poor
workman was Miller's testimony that Schwartz was delinquent in
removing "mis-ties" from cloth in the process of weaving; that this
resulted in the production of second quality cloth;' that he had dis-
cussed this matter with Schwartz; and that on one or two occasions
he had suggested that Schwartz obtain eyeglasses as a means of
improving his work.
We do not believe that this alleged delinquency was an operative
factor in Schwartz's lay-off. He was one of the first employees
called to work when the Lexington mill was reopened in 1933 fol-
lowing a prolonged shut-down; and when normal operations were
begun about 4 or 5 weeks later, he was given the position of "smash
hand" in which he remained until his lay-off in 1938. His pay was
raised from $13 to $14 a week, and finally to $16.40 approximately 1
year before his employment was terminated." Miller did not claim
that he had advised Schwartz at the time of the lay-off that his work
was unsatisfactory and Schwartz denied that any such reason was
given him. On cross-examination Miller, upon whose report Rush
claims to have relied, admitted that Schwartz "had been" a good
worker and is a good worker "when he wants to be."
In view of Miller's admissions that Schwartz was capable,
Schwartz's long service with the respondent, the fact that Schwartz,
whom the Trial Examiner found to be a credible witness, denied
that there had been any complaints about his work, and the reason
advanced by Miller to Schwartz at the time of his lay-off, we find
that Schwartz was not laid off on March 2, 1938, because his work
4 Miller testified that the information upon which he based his assertion that Schwartz
was delinquent was obtained from tickets on finished pieces of cloth which showed which
"smash hand" was responsible for the pattern when the piece was drawn in. Miller
testified that these tickets were not preserved by the respondent.
8 The record does not disclose whether these were general pay increases.
MARTEL MILLS CORPORATION 719
was not satisfactory. However, the record fails to establish that this
lay-off was discriminatory. Schwartz was employed on the shift
which at that time was discontinued. By retaining Mrs. Schwartz
in its employ, the respondent apparently proceeded in -conformity
with its avowed policy of retaining only one person from each family,
and there is no evidence that this policy was disregarded at the Lex-
ington mill. While the statements made by Rush to Schwartz at
the Lexington post office on May 22, 1938, indicate that the respond-
ent might well have laid Schwartz off in any event, nevertheless,
upon the record, it does not appear that the policy of retaining only
one person from each family was not the determinative factor in
Schwartz's lay-off. We find that the respondent did not, at that
time, discriminate against Schwartz.
Miller testified that Schwartz was not reemployed when the second
shift was recalled in May 1938 because the position classified as
"smash hand" had been eliminated in a reorganization of the weave
room, and because more efficient employees were chosen to perform
the work in this department. According to Miller, some of the work
formerly performed by two "warp hands" was given to the loom
fixers; the remaining work formerly performed by the two "warp
hands" and one "smash hand" was given to the two "warp hands";
and the position classified as "smash hand" was eliminated. Miller did
not claim that Schwartz was not reemployed in the weave room because
the services formerly performed by him were no longer needed or that
he was incapable of performing the duties of "warp hand" which
included his former work, but rather that more efficient employees were
hired to perform those duties. This contention is- based in part upon
the position that Schwartz was inefficient-a contention which we have
shown above to be untenable. That relative efficiency, or, as testified
by Rush, a belief that Schwartz was "incapable of handling the job,"
had no part in this choice and that the true reason for the respondent's
refusal to reemploy Schwartz was his T. W. 0. C. activities, is
clearly shown by Rush's conversation with Schwartz on May 22,
1938. When Schwartz asked Rush, in effect, why he had not been
reemployed, Rush did not, as he did at the hearing, refer to the
absence of an available position or to his belief that Schwartz was
"incapable," but adverted to Schwartz's organizational activities on
behalf of the "C. I. 0." Rush thus revealed that Schwartz had not
been reemployed because of the reports of Schwartz's union activities
which he had received and about which he questioned Schwartz on
this occasion. Moreover, Miller admitted that when the second shift
was recalled, it was the practice of the respondent to reemploy in
their former positions all persons who had been laid off, and that in
the event the respondent was unable to do so at that time, it at-
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tempted to reemploy them when the third shift was put on.9 Never-
theless, on neither of these occasions was Schwartz reemployed.le
Miller testified that during the week prior to the employment of a
third shift in November 1938 a position as helper in the slasher room
on the first shift was open ; that he had told Mrs. Schwartz, at her
place of work, that a job would be available and that either Schwartz:
or their son, who had previously applied for employment, could have
the position; and that on the following Monday, Schwartz's son came
in and was given a job. Mrs. Schwartz was not called as a. witness,,
but Miller admitted on cross-examination that on the first day of the,
hearing. Mrs. Schwartz denied that he, Miller, had told her that a job
was open. Schwartz denied that he had been advised of any offer
of employment; stated that his son had applied for a job when the
third shift was added. and was given a job on the third shift; and
testified that he would have preferred to have worked himself, since
his son, a minor, was going to school and operating a store and filling
station at which Schwartz clerked.
That Mrs. Schwartz would have advised her husband of the alleged
offer had it been made, is, we think, so probable that there is presented
a question of the credibility of Miller as against Schwartz, who denied
receiving word of the alleged offer. Miller's testimony, considered in
the light of the circumstances surrounding the hiring of Schwartz's
son, leads us to believe that he did not offer a position to Schwartz.
Miller testified that the alleged offer was made because a position was
open on the first shift, which he stated was regarded by employees as
the most desirable of the three shifts.11 However, Schwartz testified
this his son, who had previously applied for a position, was given em-
ployment on the third shift, and this testimony is corroborated by
the respondent's pay roll for January 14, 1939, a date shortly after the
° Rush had told the grievance committee of the T. W. O. C. local at the Lexington mill
at the time of the lay -offs that when the shift was recalled , persons whose employment was
terminated would be returned to their former positions "as near as we could."
10 A comparison of the respondent ' s pay rolls for the Lexington mill for February 5, 1938,
shortly before Schwartz was laid off, and for January 14, 1939 , subsequent to the addition
of the third shift , shows that approximately 165 persons were employed on the former
date , and approximately 249 persons on the latter date . At the time of the hearing,
Mary Shealy, listed on the respondent 's pay roll for February 5, 1938 , as a spinner at the
Red Bank mill was working as a "warp hand" on the second shift at the Lexington mill.
One of the duties of a "warp hand" is to "draw -in" patterns , which was work formerly
done by Schwartz . Another of the duties of a "warp hand " is to tie the warp on the
loom, an operation that involves lifting a loom beam weighing from 150 to 200 pounds.
Miller admitted that Shealy was unable to perform this part of the job. He testified that
one of the men, apparently the other "warp hand," does the "heavy work" for Shealy and
that she, in turn, "draws-in" "selvages ." On the other shifts both "warp hands" are men.
Thus it appears that the respondent employed Shealy although it was necessary to make
a special accommodation in the work routine in order to provide a position for her.
11 It appears that working hours for the three shifts were as follows : first shift, from
6 a. an. to 2 p . m.; second shift , from 2 p. m. to 10 p. m . ; third shift, from 10 p. m. to
6 a. m.
MARTEL MILLS CORPORATION 721
addition of the third shift, which lists Schwartz's son as an employee
on the third:shift. No explanation' was-forthcoming from the respond-
ent why Schwartz's son was put to work on the third shift when the
position which allegedly was offered was on the first shift, and we are
convinced that his son was given employment pursuant to an applica-
tion made when the third shift was employed .rather than in response
to the alleged offer made by Miller. We find that'no offer of employ-
ment was made to Schwartz.12 Furthermore, the alleged offer, even
if made, was not an offer of employment substantially equivalent to
that. which Schwartz was discriminatorily refused on May 3, 1938,13 for
the position allegedly offered paid only $12 a week as compared with
$16.40 formerly paid Schwartz.
We find that the respondent refused to reinstate Schwartz on May
3, 1938, and thereafter, because he had joined and assisted the
T. W. 0. C. and engaged in concerted activities with other employees
for the purpose of collective bargaining and other mutual aid and
protection, thereby discriminating in regard to the hire and tenure
of employment of said employee and discouraging membership in a
labor organization ; that by such acts the respondent has interfered
with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
At the time of his lay-off Schwartz was earning $16.40 a week.
Schwartz testified that he earned from $25 to $30 during the summer
of 1938, and that since his son started to work for the respondent in
November 1938, he had received groceries. for clerking at his son's
store in the latter's absence.
. David B. Waits joined the T. W. 0. C. on June 12, 1937. He was
the second employee at the Red Bank mill to join the T. W. 0. C. and
solicited membership on its behalf prior to his lay-off on February 23,
1938. Waits had worked at the Red Bank mill intermittently since
1916. His last uninterrupted period of employment prior to his lay-
off dated from 1933. During this period he was employed as a loom
fixer on the second shift.
The respondent conceded that Waits was a capable employee. In-
deed, when Waits was laid off, Parkman, his overseer, told him, "I
hate to do it If it was left to me I would not do it, but I am forced
to do it."
12 The Intermediate Report is somewhat ambiguous as to whether the Trial Examiner
also resolved the conflict in favor of Schwartz 's testimony or whether he merely found that
no resolution was necessary because the alleged offer was not equivalent to an offer of
reinstatement . We note that in other respects the Trial Examiner found Schwartz a
--credible witness. .
' 13 The respondent was aware that charges had been filed with the Board at the time the
respondent asserts the alleged offer was made.
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In June 1938 Waits had the following conversation with Rush :
I asked him-[Rush] was the third shift going to start back
up. He said he didn't know for sure, but he thought there was
something to take place, he was in pretty good hopes it would.
I asked him would there be any chance of getting my job back
if it did. He said, yes, sir, if it started up he would let me
know. I didn't need to go to any trouble, he would let me know
if it started up.
Early in July, during the week prior to the recall of the third shift,
Parkman told Waits that he desired to reemploy him in his former
position, but that he should see Rush as Parkman was "letting him
[Rush] know all that is coming back to work." Rush told Waits that
he was then undecided, as he intended to give preference in employ-
ment to persons who lived in the mill village. On the following day,
Rush reiterated his statement concerning persons living in the mill
village, and told Waits that he would be unable to give him employ-
ment. Waits then reminded Rush of his promise made in June. Ac-
cording to Waits, Rush became angry and said, "I understand you are
a member of the union, or organizing a union, or helping to organize
a union around here. I don't care to fool with you." When this
testimony was brought to Rush's attention and he was asked by counsel
for the respondent whether he had made this statement, Rush an-
swered, "I didn't say that," and answered with a bare negative the
further question as to whether he "ever made such a statement to Mr.
Waits, or anything similar."
The Trial Examiner, on the basis of "the demeanor of these two
witnesses on the stand, their reaction to cross-examination and certain
inconsistencies of the superintendent's [Rush's] testimony," 14 found
that Waits' version of this conversation was substantially correct.15
We are in agreement with the Trial Examiner's determination. Rush
did not deny that he had a conversation with Waits on this occasion,
nor did the respondent attempt to explain what had transpired. We
cannot accept Rush's mere denials, one ambiguous in character, which
were made in response to leading questions by the, respondent's counsel,
14 The inconsistencies referred to by the Trial Examiner , which we find to be present in
the record , are as follows : (1) As we have pointed out above, and as we shall point out
infra, although Rush and the overseers stated that the overseers hired , laid off, and dis-
charged employees , Rush later admitted that he had participated in the decision to dismiss
each of the four complainants . ( 2) Rush testified that Dresser, general manager of the
respondent's various mills , had instructed him not to discriminate against employees be-
cause of their union affiliation , and that he had relayed these instructions to overseers
within the last year or two. Williamson did not recall receiving such instructions after
1934, and Alewine also testified that he had received these instructions in 1934, and
that no mention of union activities had been made by Rush since then.
is In addition, we note that Waits, who had been reemployed by the respondent prior
to the hearing ( see infra ), testified as a witness subpenaed by the Board , and was obviously
reluctant to testify adversely to the respondent.
MARTEL MILLS CORPORATION 723
as sufficient to refute Waits' testimony. Rush's antipathy to the or-
ganizational activities of employees on behalf of the T. W. O. C. is
shown by his statements, related above, made to Mims and Schwartz.
Moreover, upon the entire record we are satisfied that he was not a
credible witness.16 We find that Rush made the statements attributed
to him by Waits.
In November 1938 a loom fixer at the Lexington mill died. Over-
seer Miller testified that he had no one at the mill to promote to the
position and that he consulted Rush, who suggested that he hire
Waits. Rush sought out Waits at the latter's post on the county
chain gang and told him to see Miller. Upon application to Miller,
Waits was employed as a loom fixer at the Lexington mill on Novem-
ber 28, 1938, and was employed there at the time of the hearing.
At the hearing Rush testified that he had nothing to do with laying
off Waits. Almost immediately, however, Rush corrected his testimony
and said, "I remember I was in on that when he was laid off, Mr.
Waits. We laid him off because he was on the farm,17 for which we
laid off several that were on the farm. When the shift started back
up Mr. Waits was employed [elsewhere],18 and we had several people
there at the mill that we were not able to employ, not able to give -
them work. We gave those work that had no other means of making
a living."
When Waits was laid off on February 23, 1938, none of the loom
fixers on the first shift were laid off ; of the four loom fixers on the
second shift; Waits was the only one laid off; and of the four loom
fixers then employed on the third shift, Waits testified that one was
laid off, and that, although he was not sure, he believed that the
three remaining were retained by the respondent in some other capac-
ity.19 It further appears that loom fixers with less seniority than
Waits were retained in the respondent's employ and that Waits was
the only member of his family, which included eight minor children,
who had employment.20 Nevertheless, since it is clear from the
record that economic need was considered by the respondent in select-
ing employees for dismissal, we are unable to conclude that the
possibility of other means of sustenance afforded by Waits' owner-
ship of a farm was not the controlling consideration in his dismissal.
Although we are of the opinion that Rush's statements at the time
10 See footnote 14, supra..
17 Waits owned a farm located approximately 4 miles from the Red Bank mill.
18 On May 2, 1938, waits accepted a position on the county chain gang.
11 The respondent made no effort to refute waits ' testimony that three loom fixers on the
third shift were retained.
20 As ' we shall point out more fully below, the record discloses that in connection with
the dismissals at' the Red Bank mill the respondent in general gave consideration to
seniority , and where possible , retained one member of each family.
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Waits applied for reinstatement cast doubt on the reason advanced
by Rush for laying off Waits, we conclude that the evidence is in-
sufficient to establish that Waits' T. W. O. C. membership ' and
activity were the reason for his lay-off.
However, we are satisfied, and we find, that Waits was refused
reinstatement in July 1938 because of his T. W. O. C. membership
and activity. Although Waits had been promised reinstatement by
Rush in June and Overseer Parkman desired to reemploy him at
the time the third shift was recalled, he was refused employment, and
a position as a loom fixer was given to an employee who had formerly
served the respondent in a different capacity and who had other em-
ployment at this time. Thus, when the third shift was recalled in
.July 1938, Furman Alewine, who had worked as a "smash hand" on
the first shift until laid off in February 1938, was employed as a loom
fixer at the Red Bank mill, although he then had other employment
at a mill in Camden, South Carolina .21 It is clear, from these facts
that Rush's assertion that Waits was refused reinstatement because
he had other employment and because of a. desire to employ residents
.of the mill village who "had no other means of making a living" is
-not entitled to credence. The true reason for the respondent's re-
fusal to reinstate Waits is made obvious by Rush's statements to
Waits when the latter applied for reinstatement. Rush, when pressed
by Waits for an explanation for the breach of his promise to re-
instate Waits, stated that he did not "care to fool with" Waits
",because of his union membership and activity.
We find that the respondent refused to reinstate Waits on July
-11, 1938, and thereafter refused to reemploy hint until November 28,
1938, because he joined and assisted the T. W. O. C. and engaged in
concerted activities with other employees of the respondent for the
,purpose of collective bargaining and other mutual aid and protection,
thereby discriminating in regard to the hire and tenure of employ-
ment of said employee and discouraging membership in a labor
organization; that by such act the respondent has interfered with,
;restrained, and coerced its employees in the exercise of rights guar-
anteed in Section 7 of the Act.
At the time of his lay-off, Waits earned $22 a week. He has earned
•$18.80 a week since his employment at the Lexington mill on Novem-
ber 28, 1938. However, this was explained by Waits as resulting
from a general cut in the pay of loom fixers, which was put into
.effect in both plants after Waits was laid off. Waits had worked for
J
2' Waits, when asked , denied that Alewine had been raised in the mill village and
-testified that Alewine had been "living right like myself." This testimony was not
contradicted.
MARTEL 'MILLS CORPORATION 725
the county from May 2, 1938, to November, 28, 1938, at a rate of pay
not stated. -The Lexington mill is 8 m iles^froni Waits' farm, while
the Red Bank mill is 4. Waits desires reinstatement to his position
at the Red Bank mill. In view of the difference in mileage between
Waits' home and the Red Bank and Lexington mills, and.in view,
of his desire to be reinstated at the Red Bank mill, we find that
Waits has not obtained substantially equivalent employment.22
Buster W. Whittle and Mrs. Pinkie Whittle, his wife, had been
employed at the Red Bank mill for approximately 9 years. Both
worked on the second shift, Buster Whittle as a roving hauler in the
card room, and Pinkie Whittle as a spinner.
In September 1934, during the general strike in the textile industry
Rush laid off four employees at the Red Bank mill , one of whom was
Whittle, for a day. Rush explained this act by stating that he
"understood" these employees .to be union members and that he laid
them off to avoid trouble that might result from their working in
violation of the strike. In July-1935 Rush called at Whittle' s home.
According to Whittle, Rush questioned him about taking two other
employees to Columbia, South Carolina, 23 to obtain union cards.
Rush testified that on this occasion Whittle volunteered the infor-
mation concerning the visit to Columbia and that his purpose in
calling upon Whittle was as follows :
All the talk - I had with Mr. Whittle was the morning after
I understood they had organized a union at Red Bank. Well,
there was a misunderstanding about the thing, I will say, too,
about some falsehood on me; in other words, they told some
things on me that was wrong. They went around and told the
people, and the people told me the next morning when I went
down to the mill that the word had come to them that I had
said that the mill was going to start up on 55 hours a week back
. 22 In Matter of Pulaski Veneer Corporation -. and United Brotherhood of Carpenters &
Joiners of Amerida, Local Union #862, 10 N. L. R. B. 136, 147 , we found, with reference
to an employee who had been discriminatorily discharged and who had obtained employ-
ment at the same weekly wage at a place 10 miles from his home, that be had not obtained
substantially equivalent employment . We said : "In the absence of strong evidence to the
contrary , his wish is entitled to great weight in determining whether he has actually
acquired substantially equivalent employment ." Moreover, in view of the respondent's
practice when reducing its working force at each of the mills (see infra ) to retain em-
ployees "as far as possible on the basis of time worked here ," Waits apparently has lost
the seniority status to which his long service at the Red Bank mill would normally entitle
him in the event of future lay-offs. As we have previously held, the loss of seniority rights
is, an element which indicates that an employee has not acquired substantially equivalent
employment . Matter of Carlisle Lumber ' Company and Lumber & Sawmill Workers' Union,
Local 2511, Onalaska, Washington and Associated Employees of Onalaska , Inc., Intervener,
7 N. L. -R . B. 332 , 333. See also National Labor Relations Board v. Carlisle Lumber Co.,
99 F. (2d,) .533, •539, cert. denied "306 U. S. 646 ; National Labor Relations Board V . Botany
Worsted Mills, Inc., 106 F. (2d) 263 , 281-enf 'g as mod ., Matter of Botany Worsted Mills
and Textile Workers Organizing Committee, 4 N. L. It . B. 292.
23 Columbia is approximately 12 miles from Lexington.
283031-41-vol. 20-47
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the old wage schedule. I went down and asked Mr. Whittle
if he knew where it started from. They said he :was around with
the bunch that night.
Buster Whittle joined the T. W. O. C. in June 1937, attended
union meetings at New Brookland 24 and Lexington, South Carolina,
and procured 35 to 40 union membership applications from em-
ployees at the Red Bank mill. It appears that no local organization
had been formed at the Red Bank mill. However, employees often
called at Whittle's home, which was located a quarter to a half mile
from the mill, outside of the mill village, to obtain membership
application cards, and it was there that a representative of the
T. W. O. C. made numerous visits to collect signed cards and to
confer with Buster Whittle.
According to Buster Whittle, a month or two prior to his lay-off,
Williamson'25 his overseer, asked him whether he belonged to the
"C. I. 0." but he, Whittle, gave no answer. When asked by counsel
for the respondent whether he had ever talked to Whittle "about
belonging to any union," Williamson denied that he had. In view
of the evasive character of Williamson's testimony concerning his
knowledge of Whittle's affiliation '21 we And that Williamson did
ask Whittle this question.
On February 13, 1938, an article appeared in a Columbia news-
paper reporting that Buster Whittle had made a speech at a union
meeting held at New Brookland on the preceding night. It appears
from the testimony of Gunter, an employee of the respondent, that
this article was discussed in the opening room of the mill by William-
son; Frye, a card grinder who had minor supervisory duties; and
Emerson Shealy, "the man who runs the opening room"; and that
following this conversation Frye posted the article in the mill on
a pillar where bulletins are regularly kept. When asked, on cross-
examination, if he knew "whether or not any of the people that
worked under you belonged to the union," Williamson replied, "I
couldn't tell you," although he admitted, after further questioning,
that "you can hear talk of them belonging to the union" and "I have
had them come up and ask me my opinion of it." Thereafter,
Williamson admitted that he had read the newspaper article which
mentioned Whittle's speech at the union meeting, that he had dis-
cussed it with other employees, and that it had been posted in the
mill, but maintained that even then he did not "know" that Whittle
u New Brookland , which is situated between Lexington and Columbia ; is approximately
10 miles from Lexington.
26 Also referred to in the record as "Bill Williams."
m Discussed infra.
0
MARTEL MILLS CORPORATION 727
"belonged to the union." We consider Williamson's testimony
evasive 27 and we are satisfied, and we find, that he believed that
Whittle was a member of the T. W. 0. C. Rush admitted that he
"had heard" that Whittle was a member of the T. W. 0. C.
Pinkie Whittle joined the T. W. 0. C. shortly before her dismissal
in February 1938. She attended union meetings prior to the time
her employment was terminated and solicited membership among
employees of the respondent.
Buster and Pinkie Whittle were given notice of their dismissal
by their overseers a few minutes before closing time on February 23,
1938. Buster Whittle protested his dismissal, and referred to the
necessity of providing support for his crippled child. Williamson
made no reply, nor did he advance any . reason for the dismissal.
Pinkie Whittle testified that Lonnie Alewine, her overseer,' told
her that he was laying her off "for the time being" and that she then
asked him whether he was going to put an employee with. more
seniority in her position, and that Alewine replied "I guess so."
Alewine did not deny that he had said he was laying. Pinkie Whittle
off "for the time being," but claimed that Pinkie Whittle had asked
if he was going to place an employee in her position who had less
seniority, and that he had answered that he was. We credit Pinkie
Whittle's version of the conversation. Since it was the respondent's
n The following are excerpts from Williamson's testimony
Q. (By Trial Examiner Persons.) After you read that article in the newspaper,
did you then know that Mr. Whittle belonged to the union?
A. I didn't know lie did, no sir, but, naturally, you see that you would think so,
you know, but I didn't know It.
Q. If you had read in the paper of any other operative, not in your mill but
in somebody else's mill that had made a speech at a union meeting, you would have
understood he was a member of the union?
A. Naturally, you would have thought so.
Q. You did have some large suspicion lie was a member of the union?
A. Naturally, you would, yes, sir.
Q. When you said awhile ago you didn't know,' you meant you didn't legally
know?
A. No, sir.
Q. You didn't know with absolute certainty?
A. No, sir. That is what I meant.
Q. So far as things were regularly handled, you pretty well knew he was a
member of the union, didn't you?
A.
Q.
A.
No.
An active member?
No, sir, you couldn't tell what he was. I couldn't.
Q. What do you suppose he was making a speech about at a union meeting?
A. I couldn't suppose what he was speaking about. That is the reason I told the
boys I wanted to read it.
Q. If a man told you he belonged to the union and didn't show you a card, would
you say you didn't know he belonged to the union?
A. No, I wouldn't know it, because a man will tell you a lie these days as quick
as he will tell you the truth.
0
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practice to retain employees according to "time worked here," 28 the
question which Pinkie Whittle testified she asked was perfectly
natural and, moreover, since there is no indication that she knew
who was to replace her, there is no apparent reason for her asking
the question which Alewine contended she asked. Furthermore,
while the conversation as related by Pinkie Whittle is complete,
it is unlikely that, if it had been as related by Alewine, Pinkie Whittle
would not have asked for an explanation, or that Alewine would
not have advanced an explanation for such a departure from the
general practice.
Buster Whittle applied to Williamson for work within the week
following his dismissal. Williamson informed him that no work
was then available, but told him that if a position was open for
which he considered Whittle qualified, he would send for him.
Pinkie Whittle applied to Alewine for employment approximately
1 or 2 months after the third shift had been recalled on July 11,
1938. On this occasion she mentioned her need due to her family
of children, one of whom was crippled. Alewine told her that he
had no work for her.
The respondent urges that the Whittles were dismissed for the
following alleged reasons : that "immoral conditions" at the Whittle
home were such as to arouse complaint by other employees at the
Red Bank mill; that Buster Whittle was inattentive to his duties;
that he disobeyed a State statute regulating hours of labor despite
warnings by the respondent;, that Pinkie Whittle had been dismissed
to provide a position for a woman who had been raised in the mill
village and whose father had been an' employee of the respondent
for 45 or 50 years.
In support of the contention that the Whittles were dismissed be-
cause of "immoral conditions" at their home, the respondent relies
upon the general statement made by Rush at the hearing that "I had
so much trouble and complaint with that family we decided to let
them go," and upon certain testimony elicited from Buster Whittle
.on cross-examination to the effect that his daughter of 16 or 17 had
run away from school, and that her conduct had apparently necessi-
tated the filing of a petition by Whittle in probate court. ' While it
appears that Rush spoke to Buster Whittle about the situation, there
is no support in the record for the contention that the "immoral
conditions" in the Whittle home were in. any manner connected with
28 See infra.
MARTEL MILLS CORPORATION 729
the dismissal of the Whittles.20 Williamson and Alewine, who were
the Whittles' overseers, and who consulted with Rush concerning
their dismissal'30 made no reference to the "conditions" as having any
part in the decision to terminate the employment of the Whittles.
In this connection we are particularly impressed by the following :
On direct examination, counsel for the respondent asked Alewine
whether the "reports `that have been made about the home have any
bearing upon the desirability of Mrs. Whittle ,as an employee in the
mill." An objection by Board counsel to this as a leading question
was sustained by the Trial Examiner. Counsel. for the respondent
then asked Alewine to "tell us specifically, if you can, just why Mrs.
Whittle was laid off at the time she was laid off." Alewine, in his
answer, made no reference to the alleged "immoral conditions" at
the Whittle home or to any trouble with the family. We find that
"immoral conditions" at the Whittle home played no part in the
dismissal of the Whittles. We next consider the evidence relating
separately to Buster Whittle and Pinkie Whittle.
Williamson testified that he had received complaints for approxi-
mately 2 years from employees in the card room that Buster Whittle
had been delinquent in providing empty boxes. into which the machine
operatives placed full bobbins; 31 that Whittle had disturbed fellow
employees while they were at work; that although he had warned
Whittle to observe a South Carolina statute providing that no regular
employee shall be "permitted or suffered to work" before or after the
regular hours for each shift, Whittle continued to come to work early
to, oil machines in order to lighten his duties during regular hours
and on one such occasion, approximately 6 or 7 months prior to his
discharge, Whittle caught his hand in a machine; and that he had
cautioned Whittle about these complaints several times. Perry
Shealy, second hand in the card room, testified that he also had re-
ceived complaints that Whittle was delinquent in his duties for
approximately 2 years prior to February 1938; that the quality of
Whittle's work remained about the same throughout that period;
that he had cautioned Whittle about idling, but that Whittle would
sometimes disregard him. The testimony of Williamson and Shealy
was corroborated by that of Hook, Smith, and Sox, machine oper-
29 The time when these "conditions " existed does not appear. Buster Whittle testified
that his (laughter ran away from school during the spring of 1938 , a period subsequent
to the time that the Whittles were dismissed. The record does not show when the pro-
ceedings in the probate court were instituted, or the time when Rush spoke to Whittle, or,
with any definiteness , whether the daughter 's misconduct was anything other than
truancy.
sa Rush, after having previously testified that the overseers were in charge of hiring,
laying off, and discharging employees , admitted , on cross-examination that he was "con-
nected with" the dismissal of the Whittles.
m Since the operatives were piece workers , this would result in delay and loss of money
to them.
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
atives, who worked in the cardr'oom 32 Williamson also testified that
since Whittle was replaced, there had been no complaints of the type
that he 'had received from employees about Whittle, and Hook
testified that he considered conditions improved in the card room.
Whittle denied that there had been any complaints about his work,
or that he had had any trouble with his fellow employees "beyond a
couple of little words," which, he said, were not about his work. He
also denied disregarding the statute as to working hours after he was
cautioned,33 and asserted that the occasion when his arm had been
caught in the machinery was a year or two before he was dismissed.
We find it unnecessary to resolve the conflicting testimony concern-
ing Whittle's work and conduct. Had Whittle merely been laid off
on February 23 in order to give employment to a more efficient per-
son on the third shift, it may be that we would hesitate to conclude
that his dismissal was not accounted for by the complaints testified
to by the witnesses called by the respondent. Whittle, however, was
not laid off on February 23, but was admittedly discharged 34 with
the intention that he would not be given employment, and the re-
spondent at the same time also discharged, with the intention not to
reemploy, Pinkie Whittle,.the satisfactory character of whose work
was conceded.
For the reasons:which more conveniently can be considered after
reviewing the particular facts as to Pinkie Whittle's dismissal, we
are of the opinion: that' the decision of the respondent to rid itself
of the Whittle family is to be explained by the participation of the
Whittles in the activities of the T. W. 0. C. At this point it is
sufficient to say that we are not persuaded that the complaints alleged
to have existed with respect to Whittle's work and conduct account
for his outright discharge. Buster Whittle had been employed by
the respondent for 9 years; admittedly his alleged shortcomings had
been endured for at least the last 2 years of that period, though there
is no indication that other persons were not available for employ-
ment; and Williamson, within a month after February 23, gave
Buster Whittle a recommendation describing him as a "good
worker." 35
"' Shealy was given Whittle 's position when the latter was laid off and at the time of
the hearing Sox held this position . Although Whittle testified that Shealy was a "union
man," Shealy testified that he had been a member of the U. T. W. A., but that he was not
a member of the T. W. O. C.
88 It appears that Overseer Williamson did not observe a regular 8-hour schedule in per-
forming his work, and apparently did not consider adherence to such a schedule important
as to himself.
8s See infra.
88 The record does not disclose that Whittle, during his long service with the respondent,
had ever been disciplined in any manner for his alleged shortcomings . In the last year of
his employment with the respondent he received a wage increase from $12 to $14 a week;
whether the increase was a general one does not appear.
MARTEL MILLS CORPORATION 731
. The respondent conceded that Pinkie Whittle was a capable em-
ployee. She was dismissed and her job on the second shift was given
to Katherine Day, who had been employed by the respondent for
only 2 years, had worked on the third shift, and was the daughter
of another employee who was retained on the first shift. Alewine,
Pinkie Whittle's overseer, testified as follows in explanation of this
action :
Well, I had a girl by the name of Katherine Day, Mr. Henry
Day's daughter; she had finished school and went to work, had
been working there a couple of years, and Mr. Day had been
there [in the company-owned mill village], I would say, 45 or
50 years ; as a matter of fact he was raised there ... I had to
make a decision. I didn't have a job for both of them. I made
the decision in favor of the Day girl.
Alewine further testified that "I just took it under consideration
that Mr. Day had been there the longest and raised his family right
there at the mill," and when asked by the Trial Examiner to explain
"how Mr. Day ... affects the hiring of a spinner," Alewine answered,
"'We try to take care of the older help as much as we can."
The reasons advanced by Alewine for Pinkie Whittle's dismissal
are unconvincing. Every consideration averred by the respondent
to have been controlling in the selection of employees to be dismissed
was disregarded. As at the Lexington mill, instructions were given
at the Red Bank mill to try to retain one person from each family.
Alewine so testified.36 While Rush denied that such instructions
were given, we do not credit his denial. As we have stated above,
Rush was not a credible witness. Moreover, his denial is particularly
unpersuasive in view of the circumstances under which it was made,
for immediately prior to Rush's appearance as a witness, Alewine had
admitted that the instructions had been given and had sought to
explain Pinkie Whittle's dismissal on other grounds. 37 In spite of
these instructions, the respondent dismissed Pinkie Whittle although
her husband, the only other member of the family employed, was
also simultaneously dismissed. At the same time the respondent gave
Pinkie Whittle's position to an employee whose father was retained
in the respondent's employ, and, it may be noted, was one of the
persons whom Rush had accused Schwartz of "antagonizing" when
soliciting membership for the T. W. 0. C.
ae The testimony of waits, though not entirely clear , appears to be that the notice at the
Red Bank mill contained the same statements of policy as those contained in the notice
posted at the Lexington mill.
87 Furthermore , as we : shall point out more fully below, the instructions to retain one
member of a family so far as possible rest upon the same basic principle of avoiding hard-
ship as underlies other instructions which Rush claims to have given . In sum, we are
satisfied that Rush sought to conform his testimony to fit the pattern of the case.
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor are we persuaded that the fact that the Whittles lived outside
of the mill village, from which they had moved in or around 1935,
was the reason that Pinkie Whittle was discharged and her. place
given to Katherine Day. The respondent continued to employ per-
sons who did not reside in the mill village.38 Moreover, it is clear
that the fundamental basis for preferring those who resided in the
village, as well as for retaining only one member from each family,
was their dependence on employment at the mill for sustenance.39
Yet the, respondent gave no thought to the economic needs of the
Whittles, who had a family of dependents, including a crippled child,
and no other income. We find that the reasons advanced by the
respondent were not determinative factors in dismissing Pinkie
Whittle.
We have noted above in connection with the dismissals at the
Lexington mill, that the respondent admittedly chose the employees
to be dismissed "as far as possible on the basis of time worked here."
The record shows that a similar policy was also observed at the Red
Bank mill.40 Indeed, Alewine sought to explain the retention of
Katherine Day as an employee by reference to the respondent's re-
gard for the welfare of its "older help." Nevertheless, Pinkie
Whittle, an admittedly efficient employee who had served the re-
spondent for more than 9 years, was allegedly dismissed to provide a
position for an employee who had worked for the respondent for
only 2 years. Moreover, although the respondent employed approxi-
mately 15 spinners on each shift, no reason was advanced why Pinkie
Whittle was the person to be dismissed from the second shift to
provide a position for Katherine Day who was then working on the
third shift.
As we have indicated above, Buster and Pinkie Whittle were not
merely laid off on February 23, 1938, pending an increase in. produc-
tion, but were in fact discharged. Although Alewine and Williamson
referred to their dismissal as a "lay-off," the record shows that they
were discharged. Rush testified that he was "connected with" the
dismissal and that he had instructed Williamson and Alewine to dis-
as Hook , an employee on the second shift at the Red Bank mill, who was called as a wit-
ness by the respondent to testify to Buster Whittle's alleged inefficiency, lived outside the
mill village , as did one of the three loom fixers on the third shift who , Waits stated, was
retained in the respondent ' s employ. -
89 This is also apparent. from the contentions of the respondent with respect to Waits'
lay-off ( see supra ), since the respondent urged that it laid off Waits and several others
who "were on the farm" and retained persons who had "no other means of making a
living."
{U As we have stated, Waits appears to have testified that a notice containing the same
statements of policy as contained in the Lexington notice was posted at the Red Bank mill.
Furthermore , in a previous lay-off Waits had been told that he was- included ."because
he was the youngest hand, to give an older hand my job." Williamson , overseer of the
card room of the Red Bank mill , admitted that , provided that an employee was efficient,
"you have to have a little leaning to the man . that has been.there the longest."
MARTEL MILLS CORPORATION 733
charge them. We see no reason to doubt that these were his
instructions 41
The foregoing facts, considered in the light of Rush's hostility to
union organization as manifested in his statement to Schwartz, Mims,
and Waits; convince us that the respondent seized the general lay-off
of February 23, 1938, as an opportunity to rid itself of the Whittles
because of their identification with the T. W. O. C
In 1934 Buster Whittle was one of four employees at the Red
Bank mill whom Rush "understood" to be a union member. In 1935
it was Whittle who was sought out by Rush to explain the origin of
statements concerning working conditions allegedly made by em-
ployees while seeking to organize a union. . With the advent of the
T. W. O. C. in 1937, Buster Whittle resumed his activities. His home
became a center of organizational activity; he was questioned con-
cerning his affiliation by his overseer; a newspaper account of a speech
delivered by him' at a T. W. O. C. meeting became the subject of dis-
cussion by Williamson and other supervisory employees in the Red
Bank mill and was thereafter posted at the mill; and Rush admitted
that he "had heard" that Buster Whittle was a member of the
T. W. O. C. These facts clearly show, and we find, that Whittle was
an active union leader and that he had been identified as such by the
respondent. We also conclude that whether or not the respondent
knew of Pinkie Whittle's T. W. O. C. membership and activity, her
husband's membership and activity and the use of their home as ..a
center of organizational activity account for her discharge. Rush's
testimony that the Whittles were discharged because of the "trouble
and complaint with that family" makes it clear that Pinkie Whittle
was discharged for the same reason as her husband. It is also clear,
as we have stated above, that the "trouble and complaint" was not the
"immoral conditions" allegedly existing at the Whittle home. On the
contrary, we are satisfied that Pinkie Whittle was accorded the same
treatinentby the- respondent as her husband because the Whittle home
had become the focal point of organizational activity to which the
respondent was opposed.42
1 Rush, when asked whether the four complainants were "all through," answered , " Well,
Mr. Waits isn 't; Schwartz isn't; as far as Mr. Whittle and Mrs. Whittle are concerned,
why, you might call them discharged ." In view of this testimony we cannot credit Ale-
wine's testimony to the effect that Pinkie Whittle was not reemployed because she did not
apply at the time the third shift was recalled in July 1938 . Indeed , Alewine ' s testimony
is inconsistent with the admitted fact that "most of the people laid off under the same
circumstances" were recalled by the respondent . Not only were the Whittles not recalled
at this time, but it appears that persons not previously employed by the respondent were
hired for work for which Pinkie Whittle was admittedly qualified . Thus, a comparison of
the respondent 's pay rolls at the Red Bank mill for February 5, 1938, and January 14,
1939, shows that the names of 9 spinners appearing on the latter pay roll do not appear
on the former pay roll.
*2 Whether Pinkie Whittle was discharged because of her union membership and activi-
ties or because of her husband 's union membership and 'activities is immaterial, for in
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that thereby the respondent interfered with, restrained, and
on February 23, 1938, and thereafter refused to reemploy them, be-
cause they joined and assisted the T. W. 0. C. and engaged in con-
certed activities with other employees of the respondent for the pur-,
pose of collective bargaining and other mutual aid and protection,
thereby discriminating in regard to the hire and tenure of employ-
ment of said employees and discouraging membership in a labor
organization; that by such acts the respondent has interfered with,
restrained, and coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act.
At the time of their discharge, Buster and Pinkie Whittle were
each earning $14 a week. Since that date Pinkie Whittle has had
no earnings, and Buster Whittle has been working for the United
States Works Progress Administration at an average wage of $21 a
month. Buster and Pinkie Whittle desire reinstatement to their
positions at the Red Bank mill.
B. Interference, restraint, and coercion
As we have stated above,43 Rush questioned Schwartz concerning.
rumors that had come to his attention concerning Schwartz's receipt
of pay from the C. I. 0. and his activities in soliciting membership
among employees. These queries were made in response to a ques-
tion by Schwartz as to whether he had done "anything against you
or the company." Similarly, during a conversation with Mims, who
was seeking reemployment, Rush admitted his knowledge of Mims'
membership and told him that he did not "approve of members of
the union going around from place to place and antagonizing other
people who don't belong to it and soliciting their membership." To
Waits, Rush made the unequivocal statement that he understood that
Waits was "a member of the Union, or organizing a union, or helping
to organize a union around here. I don't care to fool with you."
These questions and statements clearly disclosed Rush's antipathy to
organizational activity on behalf of the T. W. 0. C., . and, under
the circumstances in which they were made, clearly had the effect not
only of restraining the persons to whom they were made in the
exercise of their rights to self-organization and to assist a labor
organization, but of interfering with the rights of other employees
to self-organization and to form, join, or assist a labor organization.
We find that thereby the respondent interfered with, restrained, and
either event such a discharge would clearly discourage union affiliation. Matter of Mem-
phis Furniture Manufacturing Company and Furniture Workers Local Union No. 1174,
United Brotherhood of Carpenters and Joiners of America ,' 3"N. L. R . B. 26, 33, enf'd,
Memphis Furniture Manufacturing Company v ."` N. L. R. B ., 96 F.. (2d ) 1018 (C. C. A. 6) ;
cert, denied, 305 U. S. 627.
As See Section III , A, supra.
MARTEL: MILLS CORPORATION 735
coerced its employees . in the exercise of the rights guaranteed by
Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the re-
spondent described in Section I above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several
States; and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
It is essential to an effectuation of the purposes and policies of the
Act that the respondent be ordered to cease and desist from certain
unfair labor practices in which we have found it has engaged, and
in aid of such order and as a means of removing and avoiding the
consequences of such practices that the respondent be directed to
take certain affirmative action, more particularly described below.
We have found that the respondent has interfered with, re-
strained, and coerced its employees in the exercise of the rights
guaranteed them in Section 7 of the Act. We shall order the
respondent to cease and desist from such interference, restraint, and
coercion.
We have also found that. the respondent has discriminated in regard
to the hire and tenure of employment of George P. Schwartz, D. B.
Waits, Buster W. Whittle, and Mrs. Pinkie Whittle. We shall, there-
fore, order the respondent to offer said employees immediate and full
reinstatement to their former or substantially equivalent positions
with the respondent, without prejudice to their seniority and other
rights and privileges. We shall also order the respondent to make
said employees whole for any loss of pay they may have suffered by
reason of the aforesaid discrimination, by payment to each of them
of a sum of money equal to that which he or she normally would have
earned as wages from the date of said discrimination to the date of
reemployment at the Lexington mill in the case of Waits, and to the
date of the offer of reinstatement in the case of Schwartz and the
Whittles, less his or her net earnings " during such period.
44 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 than for the respondent , which would 'not have been incurred but for the discrimina=
tion against him and the consequent necessity of his seeking employment elsewhere. See
Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners
of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R . B. 440. Monies
received for work performed upon Federal , State, county, municipal , or other work-relief.
projects are not considered as earnings , but as provided below in the Order, shall be de-
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Textile Workers Organizing Committee is a labor organization,
within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of George P. Schwartz, D. B. Waits, Buster W. Whittle, and
Mrs. Pinkie Whittle, thereby discouraging membership in Textile
Workers Organizing Committee, the respondent has engaged in and
is engaging in unfair labor practices, within the meaning of Section
8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) 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.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the re-
spondent Martel Mills Corporation, Lexington, South Carolina, and
its officers, agents, successors, and assigns, shall :
1. Cease and desist from.-
(a) Discouraging membership in Textile Workers Organizing
Committee, or any other labor organization of its employees by dis-
charging, laying off, or refusing to reinstate any of its employees,
or in any other manner discriminating in regard to their hire or
tenure of employment, or any term or condition of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, 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 Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
ducted from the sum due the employee , and the amount thereof shall be paid over to the
appropriate fiscal agency of the Federal , State, county , municipal , or other government or
governments which supplied the funds for said work-relief projects.
MARTEL MILLS CORPORATION 737
( a) Offer -to George P.-Schwartz , D. B.. Waits, Buster W . Whittle,.
and Mrs. Pinkie Whittle immediate and full reinstatement to their
former or to substantially equivalent positions , without prejudice.
to their seniority and other rights and privileges ;
( b) Make whole George P. Schwartz , D. B. Waits, Buster W..
Whittle, and Mrs. Pinkie Whittle for any loss of pay they have
suffered by reason of the respondent 's discriminatory acts, by paying
to George P. Schwartz a sum of money equal to that which he would
normally have earned as wages from May 3, . 1938, the date on which
he was refused reinstatement to the date of offer of reinstatement,
less his net earnings during said period, by paying to D. B. Waits
a sum of money equal to that which he would normally have earned
as wages from July 11, 1938, the date on which he was refused rein-
statement , to November 28, 1938, the date of his reemployment, by
paying to Buster W. Whittle and Mrs. Pinkie . Whittle a sum of
money equal to the amount that he and she would' normally have
earned from February 23, 1938, the date of their discharge, to the
date of offer of reinstatement , less his or her net earnings during
said period ; deducting , however, from the amount otherwise due.
each of these employees , monies received by him or her during said.
period or periods for work performed upon Federal , State, county,
municipal, or other work-relief projects and paying over the amount,
so deducted to 'the appropri'ate'-fiscal agency of the Federal, State,
county , municipal , or other government or governments which sup-
plied the funds for such work relief projects;
(c) Immediately post, and keep posted for a period of at least,
sixty ( 60) consecutive days from the date of posting , in conspicuous
places throughout its Lexington and Red Bank mills , notices to its
employees stating that the respondent will cease and desist in the
manner set forth in 1 (a ) and (b ) ; that it will take the affirmative,
action set forth in 2 (a ) and (b ) of this Order; that the respondent's
employees are free to become or remain members of the T. W. O. C.;.
and that the respondent will not discriminate against any employee
because of membership or activity in that organization.
(d) Notify the Regional Director for the Tenth Region in writing
within ten (10) days from the date of this Order what steps the:
respondent has taken to comply therewith.