Massachusetts Knitting Mills Corp.

National Labor Relations Board - Board Decisions

Nov 8, 1939

17 N.L.R.B. 447 (N.L.R.B. 1939)

In the Matter Of MASSACHUSETTS KNITTING MILLS CORPORATION and
JAMES DIL•LEHAY ; HARDIN TRUELOVE ; SHIRLEY PRIMM ; ERNEST
ADAMS; WILLIAM CLYMORE; PAUL LINDSEY ; ELDRIDGE GRIMMITT;
AND GEORGE PAGE.
Case No. C-700.-Decided November 8, 1939
Silk Hosiery Ma- ufacturing Industry-Interference, Restraint, and Coercion:
ant-union statements by supervisors ; interrogation of employees regarding
union activities ; threats of discharge if employees did not cease union activ-
ities ; temporary lay-off of employee who continued union activities despite
warning; speech by president of plant warning employees plant would close
unless they ceased concerted activities-Discrimination : charges of , dismissed.
Mr. Berdon Bell and Mr. Charles Diimmock, for the Board.
Hirsch and Smith, by Mr. Harold Hirsch, Mr. Edward Cody, Mr.
Garnet Andrews, Mr. Andrew Ewing, and Mr. W. P. Jackson, of
Atlanta, Ga., for the respondent.
Mr. Al. A. Peebles, of Columbia, -Tenn., for the charging employees.
Mr. C. Carlton Fry, of Columbia, Tenn., for Mr. Huston Cox.
Mr. H. G. B. King, of Chattanooga, Tenn., for the Union.
Miss Anne E. Freeling, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF TIIE CASE
Upon charges and amended charges duly filed by James Dillehay
on behalf of himself, Hardin Truelove, Shirley Primm, Ernest
Adams, William Clymore, Paul Lindsey, Eldridge Grimmitt, and
George Page, herein called the charging employees, the National
Labor Relations Board, herein called the Board, by the Regional
Director for the Tenth Region (Atlanta, Georgia), issued its com-
plaint dated March 11, 1938, against Massachusetts Knitting Mills
Corporation,' Columbia, Tennessee, herein called the respondent, al-
leging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of
1 Incorrectly designated in the complaint as Massachusetts Knitting Mills.
17 N. L. R. B., No. 34.
447
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8 (1) and (3) and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat . 449, herein called the Act. Copies
of the complaint and notice of hearing thereon were duly served
upon the respondent and upon James Dillehay.
The complaint alleged in substance that following March 1, 1937,
the respondent discharged and refused to reinstate the charging
employees because of their union activity , thereby discouraging
membership in a labor organization by discrimination in regard to
their hire and tenure of employment ; and that the respondent, by
its officials , officers, and agents, advised its employees not to join
American Federation of Hosiery Workers, herein called the ' Union,
made veiled threats as to what would happen if they organized, and
warned them to give up their concerted activities within a specified
time, thereby interfering with, restraining, and coercing its employees
in the exercise of rights guaranteed in Section 7 of the Act. On
March 30 the respondent filed its answer to the complaint , denying
that it had engaged in the alleged unfair labor practices.
Pursuant to notice , a hearing was held in Columbia , Tennessee,
on April 14 , 15, and 16, 1938, before Mapes Davidson , the Trial
Examiner duly designated by the Board . The Board , the respondent,
the charging employees , and the Union were represented by counsel
and 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.
During the hearing, by consent of all the parties and by ruling
of the Trial Examiner , the complaint was amended to allege, and
the answer was amended to deny, that the respondent discouraged
membership in a labor organization by discrimination in regard
to the hire and tenure of employment of Huston Cox, herein called
a charging employee. By consent of all the parties and by ruling
of the Trial Examiner , the complaint was dismissed as to Paul
Lindsey. At the conclusion of the Board's case , the Trial Examiner
granted a motion by counsel for the Board to amend the complaint
to conform to the proof . At the commencement of the hearing and
at the conclusion of the Board 's case, the respondent moved to dismiss
the complaint as to the alleged unfair labor practices within Section
8 (3) of the Act. At the conclusion of the hearing , the respondent
renewed this motion and also moved to dismiss the entire complaint.
The Trial Examiner denied these motions. During the course of
the hearing , the Trial Examiner made several other rulings on mo-
tions and on objections to the admission of evidence . The Board
has reviewed the rulings of the Trial Examiner and finds that no
prejudicial errors were committed . The rulings are hereby affirmed.
On June 6, 1938, the Trial Examiner filed his Intermediate Report,
finding that the respondent had engaged in and was engaging in
i
MASSACHUSETTS KNITTING MILLS CORPORATION 449
unfair' labor practices affecting commerce within the meaning of
Section 8 (1) and (3) and Section 2 (6) and (7) of the Act, and
recommending that the respondent cease and desist therefrom, and,
affirmatively, reinstate the charging employees with back pay.
On June 18, 1938, the respondent filed exceptions to the Inter-
mediate Report and, on July 16, 1939, filed a brief in support of
its exceptions.
Pursuant to notice, oral argument was had before the Board at
Washington, D. C., on January 19, 1939. The respondent appeared
by counsel and presented oral argument. The Board has reviewed
the respondent's exceptions and brief and, save for the exceptions
which are consistent 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
1. THE BUSINESS OF THE RESPONDENT
The respondent, Massachusetts Knitting Mills Corporation, is en-
gaged in the business of manufacturing full-fashioned silk hosiery.
It was organized in July 1931 under the laws of the State of Mas-
sachusetts, and is also licensed to do business in the State of Ten-
nessee. The respondent has four plants, three in Massachusetts and
one in Tennessee. The respondent's executive offices are located in
Boston, Massachusetts..
The only plant involved in this proceeding is the one located just
outside the city limits of Columbia, Tennessee. The principal raw
material used at this plant is silk, although some cotton is also used.
Approximately 98 per cent of the raw materials and supplies used
at the. Columbia plant are obtained. from outside the State of Ten-
nessee. Approximately 50 per cent of the machinery used at the
Columbia plant was purchased outside Tennessee. All the products
manufactured at the Columbia plant are shipped to the respondent's
plant at Boston, Massachusetts, where they are dyed, packed, in-
spected, and finished.
The respondent employs approximately 500 people at its Columbia
plant, of whom approximately 150 are employed on the night shift.
II. THE LABOR ORGANIZATIONS INVOLVED
American Federation of Hosiery Workers is a labor organization
affiliated with the American Federation of Labor. It admits to mem-
bership employees of the respondent.
The day-shift committee and, the night-shift committee are un-
affiliated labor organizations representing employees of the respondent
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the day and night shifts respectively. The joint committee is an
unaffiliated labor organization representing employees of the re-
spondent on both shifts.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
The Union began an organizing campaign among the respondent's
employees at the Columbia plant during the latter part of 1935 or
the early part of 1936. The organizers, wishing to escape the re-
spondent's attention at this time, held meetings in remote, out-of-
the-way places. They held a meeting in the summer of 1936 at a
secluded spot on the bank of a river. Shortly after this meeting,
Saul Kaplan, general manager of the plant, summoned Grimmitt
to his office. J. S. Gordon, president of the respondent, was also
present. Grimmitt testified that Kaplan "talked to me about, I guess,
an hour, and told me if I attended any more, he would fire me .. .
so, I promised him I would not have anything else to do with the
union, and he let me go back to work." Kaplan testified that he did
not recall this conversation, and Gordon was not questioned about
it. Grimmitt attended a union meeting about a week later in Frank-
lin, Tennessee. He was discharged the following day. Grimmitt
testified that Kaplan told him, upon his discharge, that it was "for
going to that union meeting and breaking my promise to him."
Kaplan reinstated Grimmitt a day or two later on the condition,
Grimmitt claims, that "I would not have anything to do with the
union, that if I seen or heard anything that would hurt the mill, I
was to come and report it to him." Kaplan's explanation for Grim-
mitt's discharge was that in walking through the plant, Kaplan
noticed that certain employees, "were not just themselves . . . I
asked them to come in the office, and spoke to them about it . . .
some of them were not frank. I could see they were holding some-
thing from me. I laid them off for one night ..." Kaplan denied
that Grimmitt's discharge was due to his union activities, or, in fact,
that he knew of any such activities. In this connection, the following
colloquy took place:
Q. Such as when you talked to Mr. Grimmit about his having
attended a meeting in Franklin, Tennessee, of the American
Federation of Hosiery Workers, you knew he had attended.
it, didn't you?
A. No, I didn't know anything at all about it.
Q. But you asked him about it.
A. I just asked him about it. . . .. Not as to the American Fed-
eration of Labor. There was no question asked like that.
MASSACHUSETTS KNITTING MILLS CORPORATION 451
Q. You did ask him about attending a meeting of a labor
organization?
A. I just asked him about attending a meeting.
Q. You were quite interested to learn whether he attended
or not?
A. I was interested to know whether he attended the meeting.
Upon the basis of Grimmitt's credible testimony and Kaplan's evasive
explanation thereof, we find that Kaplan' questioned Grimmitt about
union activities, threatened him with discharge if he continued such
activities,-and laid him off because, despite this threat and a promise
by Grimmitt to cease his union activities, Grimmitt had attended
a union meeting.
Page testified that Kaplan called him to the office after the
meeting in Franklin and told him "to tell the truth about what hap-
pened up at that meeting ... and everything would be all right."
Kaplan did not deny this conversation. We find that this testimony
of Page is substantially true.
Primm testified that he was also called to the office and questioned
about union activities by Kaplan, J. S. Gordon, and his brother,
B. D. Gordon, secretary-treasurer of the respondent. Primm stated
that "they wanted me to tell them where we met the union men,
what all we had done, told me if I wanted a job I would have to
own up to it, so I owned up to it and went back to work.... They said
if my checks run down a little and I needed a little help, if I would
tell them things they would make it up." Neither Kaplan nor J. S.
Gordon testified about this conversation, and B. D. Gordon did not
appear as a witness. We find that this testimony of Primm is
substantially true.
Truelove and Cox both testified, about an occasion in January or
February 1937, when they were both called to the office by Kaplan
and J. S. Gordon, questioned about union activities in the plant,
and warned that their distribution of membership cards and other
union activities must cease. Although Gordon and Kaplan denied
that this conversation took place, in view of all the testimony dis-
cussed above regarding conferences of the same general tenor, we
find this testimony of Truelove and Cox to be persuasive and we
therefore reject the denials of Kaplan and Gordon.
In January 1937, the joint committee 2 called a strike and then
negotiated it settlement thereof with the respondent within a few
days. During the strike many employees became affiliated with the
2 A strike that took place among the employees at the Columbia plant in 1934 had been
settled by,negotiations between the respondent and a committee selected by the workers
to represent them. This committee ceased to function thereafer . Toward the end of 1936,
the employees on the day and night shifts elected new committees to represent them.
These committees acted jointly except on matters that affected employees on one shift
only.
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union. The Union postponed formal organization of the Columbia
employees, however, preparing, instead, simultaneously to organize
the employees at all of the respondent's plants. The credible evidence
compels the conclusion that the respondent sought to thwart the
Union's organizational campaign at Columbia.
J. S. Gordon had come to Columbia during the strike and re-
turned to Boston at its close. A few days later, in a long-distance
telephone conversation, Kaplan informed Gordon that the employees
at Columbia were still restive and dissatisfied.
Gordon returned to Columbia immediately, assembled the em-
ployees, and delivered a talk to them. Dillehay testified to Gordon's
speech as follows :
[He said] the mill was closer to closing right then than it ever
had been before. At that time he said before he would have
it organized or be bothered with outside agitators, he would
tear it down brick by brick and move it away . . . he said it
had always been run without trouble or outside agitators, and
he thought he could continue to do so .. .
The other charging employees, all of whom heard the speech, testi-
fied to the same effect.
Gordon's own version of this speech was that he stated, after
pointing out how much he had done for the employees, that
Here comes along some stranger that tries-an outsider that
tries to agitate you, and you fall for it. I believe you should
have more confidence in me than in an outsider . . . If you
don't, then we can't go along any further; we will have to close
the mill down.
Gordon testified further that by "outsider" he had reference to one
Dobbs, superintendent of a competing plant in Alabama. Gordon
claims that the purpose of his talk was to prevent Dobbs from en-
ticing employees of the respondent.
Gordon's precipitate trip from Boston to Columbia, the timing
of his talk in relation to the activity of the Union, the method of
addressing the employees, the substance of his speech as given by
the mutually corroborative testimony of the employees in his audience,
the terms-"stranger," "outsider," "agitate"-and the threat to close
the plant admittedly employed in the address, and finally, the previ-
ous anti-union statements of the respondent, leave no doubt that Gor-
don sought to discourage affiliation with the Union by threatening
to close the plant. Gordon's conversation with several members of
the committee at the close of his talk to the assembled employees
further bears out our conclusion as to the purpose of this talk and
-provides another instance of interference, restraint, and coercion.
MASSACHUSETTS KNITTING MILLS CORPORATION 453
Dillehay, Truelove, Adams, and Clymore testified in substance that
after the other employees resumed work, Gordon stated to the wit-
nesses that he would give them 15 minutes in which to dispose of
their union cards. They testified further, that at the end of this
period, Gordon returned, shook their hands, and asked them to re-
sume work. Gordon denied that he made reference to, or had knowl-
edge of, any union cards. He testified that he spoke to the com-
mitteemen as follows:
I am through talking; I am not going to talk any more. If
you want to keep this mill open, say so now. If you don't want
to, I am going to close down. I will give you fifteen minutes
to decide on it.
Gordon's own version reveals that his statement to the committee-
men constituted a threat that he would close the plant if the em-
ployees did not cease their concerted activities.
We find that by the afore-mentioned acts, including the questioning
of Grimmitt about union activities, threatening to discharge him if
he continued such activities, and laying him off because he did con-
tinue such activities, questioning Page about a union meeting, ques-
tioning Primm about union activities and offering to reward him if
he would keep the respondent informed of such activities, questioning
Truelove and Cox about union activities and warning them that
their efforts to obtain more union members must cease, snaking a
speech to the employees warning them that the plant would be closed
if they organized a union, and warning the committeemen that the
plant would be closed if they did not cease their concerted activities,
the respondent, by its officials, officers, and agents, has interfered
with, restrained, and coerced its employees in the exercise of the
right to self-organization, to form, join, and assist labor organiza-
tions, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of
collective bargaining and other mutual aid and protection.
B. The alleged discrimination
On March 2, 1937, the employees of the night shift legging depart-
ment went on strike because the respondent refused to institute a
system of alternating shifts. The respondent thereupon discontinued
the entire night shift.
The strikers began making application for reinstatement 2 or 3
days after the walk-out began. Work on the night shift was re-
sumed gradually. Most of the strikers applied several times or
waited in the office until the machines they had operated prior to the
strike were started, whereupon they were reinstated. Most of the
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strikers were reinstated within about a week after the beginning of
the strike. Within 6 weeks production on the night shift had be-
come normal. The plant operated at full capacity from that time
to the date of the hearing. All striking employees, with the excep-
tion of the charging employees, have been reinstated.3
The charging employees employed by the respondent for periods
of between 21/2 and 5 years, had done satisfactory work. All but
Prinnm, Page, and Cox were members of the night-shift committee.
All except Cox were members of the committee that c6hfei red with
Kaplan on the night of the walk-out. All had signed applications
for membership in the Union. Several had been active in soliciting
membership in the Union, and had been warned by the management
to cease such activity.
All the charging employees had applied for reinstatement within
the first week after the walk-out began. Some of them made several
applications thereafter. All the charging employees left Columbia
in order to obtain employment elsewhere within about 2 weeks after
the walk-out occurred.
Kaplan testified that when the charging employees first applied
for reinstatement, their particular jobs were not yet available, and
that he so informed them. He further testified that at the time they
applied, "my mode of conversation was definitely to make every fel-
low understand, while I did not have any work at the time, they had
plenty of hope there would be some in the future." Most of the
charging employees made other applications at various times in the
course of the ensuing 6 months. Kaplan testified that at the times
such applications were made, their machines had not yet been started
or else their jobs had already been filled. The testimony of the
various charging employees with regard to their several applications
for reinstatement is at great variance. Several corroborate Kaplan's
claim that he told them at the time they applied that lie had no work
for them at that time, although they apparently did not gain the im-
pression that "they had plenty of hope there would be some in the
future."
The respondent reinstated Lindsey, a member of the night-shift
committee, and other employees who had conferred with Kaplan on
the night of the walk-out. The evidence does not show that Kaplan
was ready to start work on the machines, which the charging em-
ployees had operated prior to the strike, at the time the charging
employees first applied for reinstatement. Nor does the evidence
refute Kaplan's claim that, upon subsequent application between a
week and 6 months after the walk-out, the former positions of tin-
3 Page, a charging employee, was reinstated and subsequently discharged. The special
circumstances with respect to Page's case are set forth below.
MASSACHUSETTS KNITTING MILLS CORPORATION 455
successful applicants were either not yet available or else had already
been filled with other applicants. It does not appear that the re-
spondent notified any persons of vacancies. Accordingly, its failure
to send for the charging employees, particularly after they left town,
was not discriminatory. The record, on the whole, does not convince
us that the respondent would have discriminatorily rejected a timely
application by the charging employees.
We find that the record does not support the allegations of the
complaint that the respondent discriminated in regard to the hire
and tenure and terms and conditions of employment of James-Dille-
hay, Hardin Truelove, Shirley Primm, Ernest Adams, William
Clymore, Eldridge Grimmitt, and Huston Cox, thereby discouraging
membership in it labor organization.
Page applied for reinstatement on or about March 8, and was told
by Kaplan that there was no work for him at the time. He applied
again shortly thereafter and was reinstated. The respondent dis-
charged him, however, on the first evening of his return to work.
The record reveals that Page precipitated. a quarrel with a fellow-
employee, that his discharge followed immediately thereafter, and
that the respondent assigned Page's guilt with respect to the quarrel
as the reason for the discharge. On this record we cannot conclude
that the quarrel was a pretext for eliminating a union member or
that the discharge was for concerted activity.
We find that the respondent, by discharging George Page, did not
discriminate in regard to hire and tenure and terms and conditions
of employment, thereby discouraging membership in a labor
organization.
IV. THE EFFECT OF THE UNFAIR LA13OR 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
Having found that the respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the
Act. We shall dismiss the complaint as to alleged unfair labor
practices within Section 8 (3) of the Act.
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case, the Board makes the following :
247334-40-vol. 17-30
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. American Federation of Hosiery Workers, the joint committee,
the day-shift committee, and the night -shift committee are labor
organizations , within the meaning of Section 2 (5) of the Act.
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 (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
4. The respondent has not engaged in unfair labor practices within
the meaning of Section 8 (3) 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 , Massachusetts Knitting Mills Corporation , Columbia, Ten-
nessee, and its officers, agents, successors and assigns shall :
1. Cease and desist from in any manner interfering with, restrain-
ing, or coercing its employees in the exercise of the 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 purpose of collective bargain-
ing or other mutual aid or protection , as guaranteed in Section 7
of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Immediately post notices in conspicuous places throughout its
plant, and maintain such notices for a period of at least sixty (60)
consecutive days from the date of posting, stating that the respondent
will cease and desist in the manner aforesaid;
(b) Notify the Regional Director for the Tenth Region in writing
within ten (10 ) days from the date of this Order what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint in so far as it alleges
that the respondent has engaged in unfair labor practices within the
meaning of Section 8 ( 3) of the Act be, and it hereby is, dismissed.
MR. EDWIN S. SMITH, dissenting in part :
The Board 's determination that the respondent did not discriminate
against the charging employees rests on Kaplan's testimony that they
MASSACHUSETTS KNITTING MILLS CORPORATION 457
did not make timely application, and, with respect to Page, that
Kaplan discharged him for precipitating a quarrel with a fellow-
employee. Clearly, a 'Contrary result must be reached if this portion
of Kaplan's testimony is not to be credited. I cannot concur in the
dismissal of the complaint as to the charging employees because I
cannot credit Kaplan's testimony.
The Board, in Section III A of its Decision, finds that the respond-
ent sought to discourage union organization and other collective
activity. In view of the continuing coercion by the respondent, the
natural inference is that the respondent took advantage of an op-
portunity afforded by an unsuccessful strike to rid itself of employees
who had been in the forefront of the employees' concerted activity.
Since Kaplan gave untrustworthy testimony to conceal the fact that
the respondent coerced its employees in other respects, it is more
than probable that he resorted to the same device in defending his
refusals to reinstate. Further analysis of the record simply cor-
roborates this conclusion.
From the credible testimony of Adams, Truelove, Primm, and
Dillehay, it is abundantly clear that Kaplan, in rejecting the ap-
plications of these charging employees, gave them to understand
that they were discharged, and not that they should apply again at
a more opportune moment. If Kaplan had not definitely terminated
their employment, they would not, as they did, have left Columbia
and incurred great expense to find employment elsewhere. The Trial
Examiner, who had opportunity to observe Kaplan's demeanor on
the witness stand, gave no weight to his asserted reasons. Kaplan's
testimony in this connection was general. Thus we are not even
given the time sequence in which positions became available. Such
information is crucial to the respondent's defense and must be con-
tained in records in its possession. The unexplained failure to pro-
duce these records constitutes an admission that they would con-
travene Kaplan's testimony. With respect to Page, the respondent
does not even assert that the altercation attributed to him interfered
with the work of the night shift. It is evident that the respondent
seized upon a trifling incident in' order to eliminate Page because
of his union membership and concerted activity. I am of the opinion
that the respondent failed to reinstate the charging employees because
of their concerted activities, and also because of their leading part
in the walk-out, which Kaplan described as "a very foolish and very
unfair thing."