Morristown Knitting Mills, Inc.

National Labor Relations Board - Board Decisions

Oct 4, 1949

86 N.L.R.B. 342 (N.L.R.B. 1949)

In the Matter of MORRISTOWN KNITTING MILLS, INCORPORATED and
TExTII s WORKERS UNION OF AMERICA, CIO
Case No. 10-CA-191.-Decided October 4, 1949
DECISION
AND
ORDER
On April 5, 1949, Trial Examiner Sidney L. Feiler issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom.and
take certain affirmative action, as set forth in the copy of the Interme-
diate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in certain other alleged unfair labor
practices and recommended that the complaint be dismissed with re-
spect to such allegations. Thereafter, the General Counsel filed ex-
ceptions to the Intermediate Report and a supporting brief. The Re-
spondent filed a brief in reply.
The Board 1 has reviewed the rulings made by the Trial Examiner
and finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the exceptions and briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner with the modifications and additions 2 set forth below :
The Trial Examiner found that the interrogation by Supervisors
Dalton and Watkins of employees as to what was decided at the union
meeting and as to the location of the union meeting hall was not viola-
tive of the Act. We do not agree. As we have often stated, we believe
that such inquiries by management representatives concerning union
r Pursuant to the provisions of Section 3 (b) of the Act, as amended, the National Labor
Relations Board has delegated its powers in connection with this proceeding to a three-
member panel [Chairman Herzog and Members Reynolds and Gray].
2 The Intermediate Report contains two minor inaccuracies, neither of which affects our
ultimate findings. Wolfe did not testify that he asked to be relieved of the third shift
because his wife was pregnant, but only because it necessitated leaving his family alone.
During the period between January 6 and 26, 1948, employees who had testified in the
earlier Board proceeding (Case No. 10-CA-79) worked not fewer, but three more third
shifts than nonparticipants in that proceeding. The Intermediate Report is hereby cor-
rected accordingly.
86 N. L. R. B., No. 46. .
342
MORRISTOWN KNITTING MILLS, INCORPORATED 343
activities tend to restrain and coerce employees in their exercise of the
rights guaranteed in Section 7 of the Act. Accordingly, we find that
by such interrogation the Respondent violated Section 8 (a) (1)
thereof.3
THE REMEDY
The Trial Examiner recommended that the Respondent be ordered
to cease and desist from engaging in illegal.surveillance or any related
prohibited conduct. In view of the further unfair labor practices
found herein, and after considering, as did the Trial Examiner, the
Respondent's past violations of the prohibitions of the Act, as fully
set forth in our Decision and Order dated November 23, 1948,4 we are
convinced and find that the Respondent's illegal activities reveal an
underlying purpose to defeat self-organization among its employees
and a fixed attitude of opposition to the purposes of the Act. Under
these circumstances, we are satisfied that its past illegal conduct is
persuasively related to other unfair labor practices proscribed and that
danger of their commission in the future is to be anticipated from the
Respondent's conduct in the past.5 The preventive purposes of the
Act will be thwarted unless our order is coextensive with the threat.
Accordingly, in order to make effective the interdependent guarantees
of Section 7 and thus effectuate the policies of the Act, we have ordered
the Respondent to cease and desist from in any manner infringing upon
the rights of employees guaranteed by the Act.'
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Morristown Knit-
ting Mills, Incorporated, Morristown, Tennessee, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Engaging in surveillance of its employees in their union
activities;
(b) Interrogating its employees concerning their union or union
activities;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist Textile Workers Union of
3 See, e. g., Matter of Standard-Coosa-Thatcher Company, 85 N. L. R. B. 135S.
4 Matter of Morristown Knitting Mills, 80 N. L. R. B. 731.
s N. L. R. B. v. Empress Publishing Company, 312 U. S. 426.
6 Matter of Shields Engineering i Mfg. Co., 85 N. L. R. B. 168 ; Matter of Tomlinson
of High Point, Inc., 74 N. L. R. B. 681.
344 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
America, CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, and to refrain from any and all such activi-
ties, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a;) -Post at its plant at Morristown, Tennessee, copies of the notice
annexed hereto marked "Appendix A." 7 Copies of said notice, to
be furnislred by-the Regional Director for the Tenth Region, shall,
after being duly signed by a representative of the Respondent, be
posted by said Respondent immediately upon receipt thereof and
maintained by it for a period of sixty (60) consecutive days there-
after, in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered, defaced, or
covered by any other material;
(b) Notify the Regional Director for the Tenth Region in writing,
within ten (T0) days from the date of this Order, what steps the
Respondenthas taken to,comply herewith.
IT IS FURTHER ORDERED that in all other respects the complaint herein
be, and it hereby is, dismissed.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to'-!effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT engage in surveillance of our employees in their
union activities.
WE WILL NOT interrogate our employees concerning their union
or union activities.
WE WILL NOT in any manner interfere with, restrain, OT coerce
Qur,. employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist TEXTILE WORKERS
UNION OF AMERICA, CIO, or any other labor organization, to
bargain collectively through representatives of their own choos-
7 In the event that this Order is enforced by a decree of the United States Court of
Appeals, there shall be inserted in the notice before the words : "A DECISION AND
ORDER," the words : "A DECREE OF THE UNITED STATES COURT OF APPEALS
ENFORCING."
1\MORRISTOWN KNITTING MILLS, INCORPORATED 345
ing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, and to
refrain from any and all such activities, except to the extent
that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
MORRISTOWN KNITTING MILLS, INCORPORATED,
Employer.
By --------------------------------------------------
(Representative ) ( Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material..
INTERMEDIATE REPORT
Messrs. Frank E. Hamilton, Jr., and William M. Pate, for the General Counsel.
Messrs. William E. Badgett, of Knoxville, Tenn., and C. Frank Davis, of Mor-
ristown, Tenn., for the Respondent.
Mr. E. John Weal, of Nashville, Tenn., for the Union.
STATEMENT OF THE CASE
Upon a first amended charge filed by Textile Workers Union of America, CIO,
hereinafter referred to as the Union, the General Counsel of the National Labor
Relations Board; by the Regional Director for the Tenth Region (Atlanta,
Georgia), issued a complaint, dated August 11, 1948, against Morristown Knitting
Mills, Incorporated, Morristown, Tennessee, herein called the Respondent,2 al-
leging that the Respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section .8 .(a) (1), (3),
and (4) and Section 2 (6) and (7) of the National Labor Relations Act, as
amended, 61 Stat. 136, herein called the Act.
With respect to unfair labor practices, the complaint. alleges in substance that
the Respondent; (1) transferred and assigned four employees, Edwin Eugene
Wolfe, Ruth Rodgers, Sarah Drenin Collins, and Mary Self, to a less desirable
work shift and later constructively discharged one of those employees, Ruth
Rodgers, and discharged another, Edwin Wolfe, because of their union mem-
bership and activities and because they appeared as Witnesses in a Board pro-
ceeding; and (2) by the activities of certain named supervisory employees and
its attorney questioned employees about their union desires, sympathies, and
activities ; urged, threatened, and warned its employees to refrain from joining
or assisting the Union ; and kept under surveillance and interfered with union
meetings and activities.
'The General Counsel and the attorneys representing him at the hearing are referred
to as the General Counsel . The National Labor Relations Board is referred to as the
Board.
2 The Respondent was originally designated in the complaint as "Morristown Knitting
Mill ." At the hearing, the undersigned granted a motion made by the General Counsel
to change the name of the Respondent on all papers in this case to "Morristown Knitting
Mills, Incorporated" which, the parties stipulated, was the correct name of the Respondent.
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent, in its answer, dated September 9, 1948; (1) admits certain
jurisdictional allegations; (2) alleges that any transfer of the employees named
in the complaint to another shift was routine and necessitated by the demands
of business; (3) avers that Rodgers voluntarily quit her employment; (4)
admits that Wolfe was discharged, but maintains that he was discharged for
cause; and (5) denies that it has committed any unfair labor practices.
Pursuant to notice, a hearing was held at Morristown, Tennessee, from
November 3 to November 11, 1948, before the undersigned, Sidney L. Feiler,
the Trial Examiner designated by the Chief Trial Examiner. The General
Counsel and the Respondent were represented by counsel ; the Union, by a rep-
resentative. Full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing on the issues was afforded all parties.
At the outset of the hearing, the undersigned denied motions made by the
Respondent to dismiss the complaint for failure to allege that the Union was in
compliance with Section 9 (f), (g), and (h) of the Act and to dismiss the com-
plaint for misjoinder of issues or to require an election by the General Counsel.
A petition to revoke a subpoena daces tewon served by the General Counsel on
the Respondent was denied. Respondent's motion to exclude witnesses was
granted with certain exceptions, At the request of the Respondent, the General
Counsel agreed to other exceptions in Respondent's favor. At the end of the
General Counsel's case-in-chief, the Respondent moved to dismiss the complaint
for failure of proof. The motion was denied. Decision was reserved when, at
the conclusion of the taking of testimony, the motion was renewed. This motion
is disposed of by the findings, conclusions, and recommendations herein. A
motion by the General Counsel to conform the pleadings to the proof was granted,
without objection, as to all pleadings. Oral argument was then presented by
the General Counsel and the Respondent. A brief was later submitted on behalf
of the Despondent containing proposed findings of fact and conclusions of law.
Upon the entire record, and from his observation of the witnesses, the under-
signed makes the following.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Morristown Knitting Mills, Incorporated, is a Tennessee corporation having
its principal office and place of business at Morristown, Tennessee, where it is
engaged in the manufacture, sale, and distribution of men's, women's, and chil-
dren's socks, hose, and related products. In the production of its finished
products, the Respondent annually uses raw materials consisting of yarns and
dyestuffs valued in excess of $50,000, of which approximately 50 percent is
shipped to the Morristown plant from points outside the State of Tennessee. The
finished products manufactured by the Respondent are valued in excess of
$100,000 of which more than 80 percent is shipped from the Morristown plant to
points outside the State of Tennessee. The Respondent concedes that it is en-
gaged in interstate commerce and subject to the provisions of the Act and the
undersigned so finds.
II. THE ORGANIZATION INVOLVED
Textile Workers Union of America, affiliated with the Congress of Industrial
Organizations, is a labor organization admitting to membership employees of
the Respondent.
MORRISTOWN KNITTING MILLS, INCORPORATED
III. THE UNFAIR LABOR PRACTICES
A. Acts of interference, restraint, and coercion
347
1. Attendance of Management representatives at the union meeting
of February 3, 1948
The Union began a campaign to organize employees of the Respondent in the
fall of 1947. The first meeting, of which general announcement was made to
all employees, was held on February 3, 1948. Circulars were distributed to
employees in front of the plant which contained the following announcement :
To the Employees of Morristown Knitting Mills:
For the second time in less than a month the Morristown Knitting Mills
is being investigated for alleged violations of the law.
On January 6th and 7th, 1948, the National Labor Relations Board held
a hearing on. charges filed against your company alleging violation of the
National Labor Relations Act. The Government attorney representing the
Board minced no words in expressing his opinion on the validity of the
Charge in the case of Mrs. Beulah May Mayes, and we are happy to say
we believe Mrs. Mayes will win reinstatement to her job and full pay for
all time lost.
In addition, you will be glad to know that a Representative of the Wage
and Hour Division, U. S. Department of Labor, is now investigating further
alleged violations of the Wage & Hour law. We fully expect that this inves-
tigation will lead to payment of unpaid back pay to many of you who work
at Morristown Knitting Mills.
The CIO is holding a meeting tonight-February 3, 1948-at 6: 00 P. M.
for Morristown Knitting Mills employees. This meeting is held for the
purpose of assisting and advising those of you who have back pay coming.
You Are All Invited : Tonight at .6: 00 o'clock, 540 Center Street, Morris-
town, Tenn.
Place: (Corner of Center and Central) Formerly known as the "Trading
Post."
Four company officials went to the meeting : R. L. Raburn , chairman of the
board of directors , G. Wayne Smith, president and general manager, G . Marcus
Jones, vice president and treasurer , and R . P. Bible, general superintendent.
The meeting which had opened before these officials arrived, was being led by
Edwin R. Gershak , a union official . Gershak noticed someone peering through
a window. He went outside and met Raburn and the other company officials.
He told Raburn that he was violating the law and that he should leave the
place of the meeting. Raburn made no reply to Gershak , but in a few minutes
Raburn and the other officials entered the meeting room and sat down. Gershak
again told them that a union meeting was in progress and that they were violating
the law by being there . When no move was made to leave, Gershak requested
E. John Neal , another union representative , to summon the police . When the
police arrived , they were asked to remove Raburn and his associates . Raburn
refused to leave asserting that he was an employee of the Respondent and that
all employees had been invited . Neal told him he had no right to attend a union
meeting. Neal read part of the Act and Raburn and the other officials left the
meeting.
Lynn Anne Lane also attended the meeting . She regularly was employed
as a secretary by C. Frank Davis, of counsel to the Respondent . Also, at the
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date of the meeting, she was employed by the Respondent'to assist in the prepara-
tion of tax returns. She attended the meeting at the request of Davis who asked
her to see whether any employees had any complaints as to back pay.
Lane testified that she attended the meeting and later she told Davis that she
had done so. She recalled that Davis asked whether there were any complaints
as to back pay, but she could not recall what, if any, reply she made, or whether
she had any further conversation with Davis. Davis did not testify as to this
incident.
Smith and Bible testified that company officials saw copies of the Union's
circular on the day it was distributed and that they discussed the alleged
violations of the Wage-Hour Law among themselves and with company time-
keepers. The four officials, according to testimony, went to the meeting to see
what, if any, complaints there were as to back pay and not for the purpose of
interference and surveillance.
The Respondent also contends that the meeting was not announced as a
union meeting, that the stated purpose of the meeting was to assist and advise
those who were owed back pay, and that the company officials, being employees,
were included in the invitation and had a right to attend the meeting.
The undersigned finds that none of the above contentions is valid. The meet-
ing was announced as a CIO meeting. The fact that the announced purpose of
the meeting was to consider an alleged grievance concerning back pay does not
detract from the fact that the meeting was a form of concerted activity by
employees protected by the Act.
It may be conceded that the four officials who attended the meeting were
employees of the Respondent, although there might be some question as to Ra-
burn who, at that time, was not an operating official. It is apparent that the
circular extended an invitation to all employees. However, such an announce-
ment cannot be properly construed in vacuo, but must be considered in the light
of the situation existing at the time and the realities of an organizational cam-
paign by a union. The Union was not attempting to organize the top super-
visory officials of the Respondent. Under ordinary circumstances, the presence
of supervisory officials is not conducive to a full and free discussion at union
meetings. To hold that top supervisory officials of a company are included in a
general invitation to employees would be highly unrealistic. Also, in the instant
case, whatever question Raburn and his associates may have had as to whether
they were invited was answered by Gersbak before they entered the meeting.
They persisted in staying despite several requests to leave. They finally did
leave, but their conduct had a disrupting effect on the meeting in addition to
the deterrent effect their presence would have on the free expression of views
by employees under their supervision and whose presence at a union. meeting
was not known to management. Lane's attendance at the meeting on behalf of
the Respondent constituted a form of surveillance prohibited by the Act. The
undersigned concludes that by the presence and conduct of the supervisory em-
ployees and by the activities of Lane at the February 3 meeting, the Respondent
violated the Act 3
The testimony of Smith and Bible that their purpose in coming to the meeting
was not to engage in surveillance or interference does not detract from the effect
of their conduct. The rule applicable is that: "The test is whether the em-
ployer engaged in conduct which, it may reasonably be said, tends to interfere
3 Matter of Kentucky Tennessee Clay Company, 49 N. L. R. B. 252; Matter of Conti-
nental Pipe Line Company, 67 N. L . R. B. 389.
MORRISTOWN KNITTING MILLS, INCORPORATED 349
with the free exercise of employee rights under the Act."' The motives under-
lying such conduct are, for the purposes of that test, immaterial.'
2. Alleged acts of interference, restraint, and coercion
Former employee Eugent Wolfe testified that during the night shift on February
8, 1.948, he was watched for a long period of time by someone in another building.
Ile was unable to identify the person or give any further particulars about the
incident. Both Smith and Bible denied that they ordered that he be watched
or that they had any knowledge of who might have done that. Under these cir-
cumstances the undersigned concludes that there has been a failure of proof that
Wolfe was kept under surveillance by the Respondent.
Wolfe further testified that he attended a union meeting on February 3, 1948,
and that after that meeting he went to work on the third shift. There he was
engaged in conversation by his supervisor, James Dalton who told him that he
had heard about company officials attending that meeting. In the course of
the discussion Dalton asked Wolfe what was decided upon at the union meeting.
Wolfe could not recall whether he made any reply to Dalton. Dalton testified
at this hearing but did not refer to this alleged conversation. At the time of the
hearing Dalton had been discharged from the Respondent's employ. The under-
signed has carefully considered Wolfe's testimony and credits it, but concludes
that Dalton's inquiry, in the course of his conversation with Wolfe and under
the circumstances was not violative of the Act.
Wolfe testified that in March he had a conversation with Supervisor Coy
Trent in which Trent, after asking him about the progress of the Mayes case,
(referred to in the circular previously set forth) told him that union men were
no good and that there were too many Communists in unions. Trent denied
making these statements. However, the undersigned concludes that these state-
ments, even if made, did not exceed permissible free speech limits permitted
under the Act.
Several days after the union meeting of February 3, 1948, Foreman W. C.
Watkins summoned employee Oneida Mayes to his desk and asked her where the
union meeting hall was. Mayes gave him the location of the hall. Watkins
testified that he was motivated in making his inquiry of Mayes by the fact
that he had heard talk of some union meeting and someone had told him that it
was to take place in that part of town in which Mayes resided. Watkins testified
that he was merely curious to find out the location of the union meeting hall. The
evidence does not show that Watkins made any further inquiries of Mayes in his
conversation with her. The undersigned finds that under the circumstances here-
in, Watkins' questioning of Mayes was not violative of the Act.
Employee Mildred Alexander testified that the day before a union meeting
scheduled for April 6, 1948, Watkins came to her place of work and asked her if
she was going to attend the union meeting to be held the next day. Alexander
made no reply. Watkins then said, according to Alexander, "Well, they are
having a meeting, aren't they?" Alexander replied that she did not know. Wat-
kins categorically denied Alexander's testimony. Alexander was asked whether
or not, in an interview with counsel for the Respondent a week before her testi-
mony in this proceeding, she had made the statement that she had never received
any threats concerning her union activities and that no inquiries had ever been
"N. L. R. B. V. Illinois Tool Works, 153 F . 2d 811, 814.
Republic Aviation Corp. v. N. L. R. B., 324 U. S. 793 ; Home Beneficial Life Insurance
Co., Inc. v. N. L. R. B., 159 F. 2d 280 certiorari denied 322 U. S. 758.
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made of her concerning the Union. Alexander denied making such a statement
and maintained she had only been asked if someone had questioned her as to
whether she had joined the Union. Her testimony on this point was contradicted
by C. Frank Davis of counsel to the Respondent.. Alexander was further ques-
tioned' as to statements she made to Davis during the course of his investigation
of Wolfe's discharge. Her testimony differed substantially from an unsigned
affidavit produced by the Respondent which Alexander testified was a true recital
of information she had furnished Davis at the time of her interview. The
undersigned credits Davis' testimony, and from his appraisal of the testimony of
the witnesses, credits Watkins' denial that he ever inquired of Alexander
whether the Union was having a meeting.
B. The alleged discrimination in assignnnents
1. Nature of the Respondent's operations ; The Boarding Department
The first step in the Respondent's production process is the knitting of socks
and anklets. They then are dyed in the dyeing room. Aboveothe dyeing room,
there is a room commonly referred to as the boarding room which is occupied by
the Boarding Department. The boarding room is 671/ feet long and approxi-
mately 40 feet wide. A large table divides the room lengthwise and there is one
desk, used by supervisory employees, at one end of the table. On either side of
the table are rows of "boards" or metal feet. These boards are fixed to the floor
and are heated by steam. Each worker, or "boarder," works on a set of 24 boards
set in 2 rows, 21/ feet wide and 12 feet 4 inches long arranged in the shape of a
"U" with the open end of the "U" facing the center of the boarding room. The
distance between sets of boards is 6 to 8 inches.
Boarders take dyed socks which are in a damp condition and pull them over
boards on which the socks are shaped and pressed. This process is referred to
as "boarding." All of the Respondent's 534 boards, except 36, are of a fixed
foot size. Also 154 boards can be adjusted to men's socks made of rayon (referred
to at the plant as "silk" socks) or a cotton sock called a "crew" sock. Other
types of socks are boarded on the remaining boards. After the socks leave the
boarding room they are paired, stenciled, folded, and shipped.
The four individuals alleged to have been discriminated against by the
Respondent were all boarders.
At the beginning of 1948, the Boarding Department was under the supervision
of General Superintendent Bible. In mid-February, W. C. Watkins was ap-
pointed foreman of the Dye House and the Boarding Department and was given
control over those departments under Bible's direction. Arlie Clevenger and
James Dalton were the shift supervisors in the Boarding Department until mid-
February when Dalton left the Respondent and was succeeded by Coy Trent.
2. The prior' Board proceeding
On January 6 and 7, 1948, a hearing was held before a Trial Examiner on a
complaint charging the Respondent herein with certain violations of the Act.
The Trial Examiner in his report found that the Respondent had violated the
Act by: (1) discharging Mrs. Beulah May Mayes for engaging in protected
concerted activities; and (2) by certain statements made to employees and the
questioning of them by two supervisors, Arlie Clevenger and Roy McKinney.
The findings, conclusions, and recommendations of the Trial Examiner were
adopted by the Board in its Decision and Order.'
6 80 N. L. R. B. 731.
MORRISTOWN KNITTING MILLS, INCORPORATED 351
Beulah May Mayes, at the time of her discharge on August 27, 1947, was
employed in the Boarding Department. Employees from that department were
used as witnesses by the General Counsel and the Respondent. Among those
who gave testimony supporting the General Counsel's contention were Eugene
Wolfe, Ruth Rodgers, Sarah Drenin Collins, and Mary Self, the for individuals
alleged in the complaint in this case to have been discriminated against by the
Respondent. Seven other boarders were called by the General Counsel and
three by the Respondent. Wolfe was perhaps the chief witness for the General
Counsel testifying as to many important aspects of the case and indicating
that he took an important part in preparing and circulating a petition for a
wage increase. Mayes was found to have been discharged for engaging in that
activity. Collins and Rodgers also were important witnesses. Mary Self testi-
fied as to certain remarks and questions by Clevenger which were found to be
violative of the Act.
3. The alleged discrimination in assignments
The establishment of a third shift in 1948
Employees in the Boarding Department regularly worked on one of two
shifts. The first shift hours were from 6 a. in. until 2: 30 p. in. The second shift
began at 2: 30 p. m. and ended at 11 p. in.
Occasionally employees were asked to work a third shift from 11 p. m. until
6 a. in. The primary cause for third shifts, according to the Respondent, was
the fact that there were only a limited number of boards available for each
size and type of sock. If there was a heavy concentration of orders in certain
sizes a third shift might be instituted. Otherwise an entire. order might be
delayed in shipment while a small part of it was being processed in the boarding
room. A third shift might also be instituted when work in the boarding room
generally fell behind as it might in the rush seasons prior to Christmas and
Easter. According to the uncontradicted testimony of Respondent's witnesses,
the boarding room had to keep up with the production of the Dye House. Unless
the damp, dyed socks were promptly boarded, they might either mildew and
require reprocessing or dry out and make it necessary for them to be rewetted
before further processing.
Although premium pay was given for third shift work, there was general
agreement in the testimony that almost all the boarders disliked such assign-
ments and sought to avoid them. Smith testified that the Respondent generally
preferred to institute Saturday work at overtime pay, when necessary, rather
than to resort to a third shift. In 1947, a total of 36 individual third shifts
were worked by different employees. Wolfe had the highest number of those
assignments-8.
The Repondent maintained that it resorted to the use of third shifts in 1948
because of the necessities of business and for no other cause. Smith testified
that he ordered third shifts on 2 occasions. The first time, Smith testified, was
shortly before the beginning of 1948 when he discussed with Bible the need for
a third shift to process an order for 5,000 dozen pairs of a type of cotton sock
called a "komet" sock. These socks could only be boarded on one set of boards
and Smith felt that a third shift was necessary to meet the promised delivery
date on this order. Smith further testified that shortly after the 1st of January
1948, he noticed that socks were accumulating in the boarding room and thus
delaying the shipment of orders. He then ordered Bible to start a third shift
to clean up this backlog. Smith gave detailed testimony as to the status of
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
undelivered orders and cancellations in 1948. Company records, he maintained,
showed that at the beginning of the year there was a balance of 264,185 dozens
undelivered. It dropped below the 200,000 mark in the week ending March 13 and
below the 100,000 mark on May 15. Smith further testified that cancellations
of orders, presumably caused by delayed delivery, became heavy in March when
he started keeping such a record and continued for some time. Company records
show substantial cancellations until June. In addition, the Respondent pro-
duced communications received from customers or the Respondent's selling
agent dated in the first third of the year either complaining of delayed deliveries
or canceling orders because of the failure to make delivery.
The General Counsel did not challenge the Respondent's contention that it
might have been necessary to resort to a third shift on occasion, but he did con-
tend that there was a discriminatory selection and retention of four employees
for those assignments. These individuals are Edwin Eugene Wolfe, Sarah
Drenin Collins, Ruth Rodgers, and Mary Self. The special circumstances as to
each of these employees are as follows :
Edwin Eugene Wolfe
Edwin Eugene Wolfe was first employed by the Respondent from 1941 until
1943 or 1944. He was reemployed on September 9, 1946, and continued his em-
ployment until April 2, 1.948. Wolfe worked as a boarder during both periods.
Approximately 2 weeks before the hearing in the Mayes case, Wolfe was assigned
to work the third shift from 11 p. m. until 6 a. m. and assigned to board komet
socks.? Wolfe was a key witness in the Mayes case and detailed in his testi-
mony his part in prior concerted activities by employees for a wage increase
which formed the basis from which all the unfair labor practices charged to
the Respondent stemmed. He was a key witness for the General Counsel. The
night after the Mayes hearing ended Wolfe complained to Bible that he was
only working 7 hours on each third shift. He was then told that he could start
an hour earlier.
Although the komet order, according to Wolfe, was completed in about 13
night shifts after the Mayes hearing he was kept on the third shift until Febru-
ary 20. On February 19, Wolfe had a conversation with Smith. Wolfe's version
of the conversation was that he told Smith that he had been advised by the
Board to give the company an opportunity to put Rodgers, Mary Self, Collins,
and himself back on day work. Bible joined them and Wolfe repeated his
statement. Smith replied that experienced workers were needed on the third
shift. Wolfe asked who selected workers for the third shift and was told that
Clevenger made those arrangements. Wolfe remarked that Clevenger must
have a grudge against him and the other workers he had named. The conversa-
tion ended at that point, Wolfe testified.
Smith's version of the conversation was that Wolfe stated that he had been
designated by the Union to seek the transfer of Rodgers, Mary Self, Collins, and
himself to day work and that Smith told him that a third shift was necessary,
that it was the custom to have a man work with women assigned to the late shift,
and that such assignments were temporary and would be terminated when work
was brought up to date.
Company records show that Wolfe worked a third shift on February 20. He
then was assigned to the second shift and continued on that shift until his em-
7 The exact date of this assignment was not fixed at the hearing, but company records
show that Wolfe worked eight third shifts in the 2-week period ending January 9.
MORRISTOWN KNITTING MILLS, INCORPORATED 353
ployment ended on April 2 except for one third shift he might have worked on
March 23. There is a conflict in company records as to assignments on that date.
Ruth Rodgers
Ruth Rodgers had been employed by the Respondent for 4 years. She testified
at length at the Mayes hearing. She also joined the Union and recalled that she
wore a union button for 1 day while at work, but she could not remember the
date.
On February 2, Clevenger asked Rodgers to work a third shift the following
night. According to Rodgers, the sequence of events thereafter was as follows
She telephoned Clevenger the next day and told him that she could not work a.
third shift because she had to prepare breakfast for her husband and pack lunch
for him. Clevenger refused to excuse her. Later that day Rodgers had another
conversation with Clevenger and, she claimed, he agreed that she would only have
to work a third shift that night. Rodgers worked the night of February 3, did
not work February 4 at all, and worked the first shift, February 5. On February
5, Clevenger told Rodgers to work a third shift on Friday, February 6. Rodgers
made no objection. On Saturday morning when Clevenger checked out Rodgers
and other workers, he told them to report for a third shift on the next Monday,
February 9.
Continuing her testimony, Rodgers testified that she telephoned Clevenger on
Monday and asked that he replace her on the third shift because her husband
objected to it. Clevenger replied that lie would see. Rodgers worked that night
and the next morning Clevenger again told her and others on the late shift to come
in again that night. Rodgers again protested the assignment and asked why
others were not assigned. Clevenger, Rodgers testified, replied that he did not
know. Rodgers stated that she could not work the third shift and would be in
on Wednesday morning and left.
On Wednesday, February 11, Rodgers reported for work on the first shift. When
he found. out that she had not worked the preceding evening, Clevenger asked her
whether she had not heard him say that if she did not work the preceding night
she need not come in for day work. (Rodgers testified that she had heard Cleven-
ger make some remark as she left the plant the day before, but had not understood
it.) Rodgers then asked Clevenger whether she was discharged. Clevenger
replied that she was not discharged, but should go home and come back for the
third shift. However, Rodgers did work until about 7 a. in. when Clevenger told
her not to continue work, hut to.talk.to a supervisor in the office.
Rodgers then went to the office and saw Bible. She explained her family sit-
uation to him, but he told her that she would have to work on the shift to which
Clevenger assigned her and that he could not "figure out" personal problems.
Rodgers then left the plant and did not return to work.
Anie Self testified that she overheard the conversation between Clevenger and
Rodgers on the morning of February 10 in which he insisted that Rodgers con-
tinue to work the third shift and that she should not report for the first shift the
next morning. Self also heard the beginning of the conversation between Clev-
enger and Rodgers the next morning when Clevenger first learned that Rodgers
had not worked the third shift the preceding night. She did not furnish any
further details as to that conversation. She testified that at Rodgers' request she
got her pay check and separation slip. She denied that she had passed on a mes-
sage from Rodgers that she had quit.
Clevenger testified that he had only one conversation with Rodgers on a date
which he (lid not fix. On that occasion, he testified, Rodgers came in to work on
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a first shift and stated that her husband objected to her working a third shift,
and that he, Clevenger, told her that-be had no room for her that day and that
she should come back at night. He could not recall how the conversation ended,
but declared that Rodgers worked that night. He did not remember how long
after that she worked.
Bible testified that he had a conversation with Rodgers before she left the
plant. According to Bible, Rodgers was crying and complained that Clevenger
would not take her off the third shift, that her husband objected to her working
those hours, and that she could not continue on the third shift. Bible ascer-
tained from her that she had not reported for a third shift the preceding eve-
ning, but had come in for work that morning and that Clevenger had refused to
permit her to work that shift. Bible further testified that he endeavored to
persuade her to work the third shift, and told her it was necessary, but also that
it was a temporary assignment and would not last too long. Finally he told her
there was nothing he could do about her assignment.
Tie Respondent produced a paper signed by Anie Self and prepared by Bible,
stating that Rodgers had told her to pass on the information that she had quit
and wanted her pay and separation slip.
The undersigned found Rodgers' version of her discussion with Clevenger to
be more accurate than the testimony of Clevenger and also to have been partially
corroborated by Bible. The undersigned concludes that Rodgers quit the Re-
spondent's employ after she had tried with no success to have her shift assign-
ment changed.
Sarah Drenin Collins
. Sarah Drenin Collins had been employed as a boarder for over 0 years as of
the time of the hearing. She joined the Union in August or September 1947.
She also testified in the Mayes case. Collins was one of the important witnesses
at that hearing and gave testimony concerning the circumstances leading to the
discharge of Mayes as well as on other activities which were found to be viola-
tive of the Act. Her testimony was chiefly concerned with the activities and
remarks of Clevenger. She also was one of the signers of the petition for a wage
increase which petition figured prominently in that hearing.
Collins was instructed by Clevenger to work on the third shift on February 3.
Collins testified that she told Clevenger that she lived too far, that it would be
necessary to drive extra mileage to work a third shift, and that her husband
objected to her working a third shift. Collins explained in her testimony that
she lived 9 miles from the plant, that when she worked on her regular assign-
ment on the first shift, her husband drove her to and from the plant, and that
when she worked the third shift she would have to make an extra trip with the
family car, and delay her husband until she returned with it.
Clevenger did not excuse Collins. She worked a third shift, February 3 and
her work record for February was as follows :
Iebruary 3-3d shift.
February 4-absent.
February 5-1st shift.
February 6-3d shift.
February 7-absent.
.February 9--3d shift.
February 10-3d shift.
February 11-14-absent.
February 16-3d shift.
February 17-3d shift.
I'ebruary 18-26-absent.
February 27-1st shift.
On February 5, Collins protested when Clevenger assigned her to the third
shift. He referred her to Bible. She told Bible that third shift work made it
MORRISTOWN KNITTING MILLS, INCORPORATED 355
necessary for two round trips each day with the family car which was expensive.
Bible replied that Collins would have to do what Clevenger ordered. Clevenger
insisted that she fulfill the assignment. Collins continued to work the third
shift through February 17 except when she was absent. She worked a total
of six third shifts. Collins further testified that in the week of February 17
she asked Clevenger when the third shift would end and that he replied that he
did not know and showed her a paper with some names on it and said, "They
brought me this from the office * c • those are the ones working the third
shift."
Collins testified that she reported for third shift work. on Monday, February
23, but was told that the third shift had been abolished and that Bible wanted
to see her. Bible told her there was no work for her immediately. She was put
back on the first shift on the following Friday.
Clevenger testified that Collins did complain to him of the expense of extra
driving for the third shift and that he asked whether she would not have the
same expense on another shift. He admitted that he saw someone drive her to
work and was uncertain whether she told him that a third shift necessitated an
additional trip for her. He also testified that he knew Collins lived away from
town, but was not sure of her exact address. He further testified that he told
Tier that he did not think that she would have to work a third shift much
longer, but that he did not know when she could stop.
Bible testified that he had one telephone conversation with Collins in which
she asked to be relieved of third shift work because she had to drive 9 miles.
Bible replied that she had to drive that distance anyway and that she would have
to do what Clevenger told her to do.
It is clear from the testimony of Collins, Clevenger, and Bible that Collins was
kept on the third shift despite her protests. The undersigned also credits her
testimony that she told Clevenger and Bible of the added expense and incon-
venience she incurred by working nights.
Mary Elizabeth Self
Mary Self had been employed by the Respondent for approximately 2J/,-, years.
She testified briefly in the Mayes case. Her entire testimony took up three pages
in the transcript and dealt primarily with one conversation concerning the
Union she had had with Clevenger. Self also attended the February 3 meeting
at which, as previously detailed here, management representatives appeared.
Self was told to work the third shift on February 5, by Clevenger. She told
Clevenger that she did not know whether she would report, but she did do so.
On Tuesday, February 10, Clevenger, according to Self, asked her to work a
third shift on the next night. She went home and told Anie Self to get her pay
for her. Later that same day Mary Self spoke with Bible and told him that she
would not work a third shift. They both then spoke to Clevenger. Clevenger told
her that she was a good boarder and that she should come in and Bible added,
"We can't put just anyone on the third shift." Self agreed to come in for the
assignment, but stated that she would not be willing to take another assignment
until all the other workers had taken a turn. Self was ill from February 12 for
approximately 2 weeks. When she reapplied for work she was, at her request, put
back on the day shift and had two other third shift assignments in May. The
Respondent's records are in conflict as to whether she had an additional third
shift in March.
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent's records
Both the General Counsel and the Respondent rely on the Respondent ' s attend-
ance records in support of their contentions . Two abstracts of these records
were received in evidence . The General Counsel introduced a record of daily
shift assignments in the Boarding Department from January 26 , 1948, the date
from which such a record is available , until July 23, 194S. The Respondent pro-
duced a summary showing the number of third shifts worked by each employee
during 1947 and 1948 and the pay periods in which that work occurred. There
were some minor discrepancies between the two records , but they do not affect
the complete picture nor the conclusions to be drawn.
These records show that in January 1948, up to and including January 23, Wolfe
worked 16 third shifts and Riley Jarnagin , another male boarder, 12 such shifts.,
Two other boarders who took no part in the Mayes case worked 2 third shifts
and 3 third shifts respectively . Another boarder, Rosa Mayes, who testified in the
Mayes hearing as a witness called by the General Counsel, worked 4 third shifts.
In the 2-week period ending February 6 there was a sharp increase in third-
shift assignments . The totals for that period are:
Eugene Wolfe____________________ 10 Riley Jarnagin-____------------_ 4
Ruth Rodgers____________________ 2 Christine Wilder ----------------- 5
Sarah Collins-------------------- 2 Helen Brown ------------------ _ 2
Mary Self----------------------- 1
The last three had taken no part in the Mayes case.
For the period ending February 20, the totals are :
Eugene Wolfe------------------- 10 Mary Self----------------------- 1
Ruth Rodgers-------------------- 1 Ann Lettner_____________________ 5
Sarah Collins-------------------- 4 Pearl Hanks--------------------- 7
Lettner had testified at the instance of the Respondent at the Mayes case. Hanks
had taken no part in it.
After this, third shift operations dropped off considerably. Several employees
received third'shift assignments in succeeding weeks, but in no case was one
individual required to work more than 2 nights in a 2-week period except in the
case of Riley Jarnagin who worked 3 nights in the period ending April 30. The
only substantial night work occurred in the period ending May 14 when 12
employees worked third shifts and 3 of them worked more than 2 times. Bible
and Smith testified that the Boarding Department caught up in its work some
time in March to the extent that third shifts could be cut down.
Wolfe received no third shift assignments after February 20, Collins last
worked at night on February 17, and Mary Self, after February 11 was, not
assigned to night work until May except, perhaps, 1 night in March as to which
Respondent's records are in conflict.
;Seven besides the four persons mentioned in the complaint were called by the
General Counsel in the Mayes case and also were employed as boarders by the
Respondent in February. Their records on the third shift is as follows :
Charles Inman----------------------- 2 (in May).
Rosa Mayes-------------------------- 4 (in January).
Mrs. Douglas Calfee ------------------ 0.
Grace Atkins________________________ 0.
6 Until May, there were four male boarders employed in the Boarding Department,
Wolfe, Jarnagin , Charles Inman , and Clifford Dalton.
MORRISTOWN KNITTING MILLS, INCORPORATED 357
Mallie Waller------------------------ 0.
Mary Spoon ------------------------- 2 (in May).
Oneida Mayes------------------------ 3 (February 27 arid 2 in May).
Three persons in the above category except that they were called by the Re-
spondent were:
Esther Sunderland------------------- 0.
Viola Myers------------------------- 0.
Ann Lettner------------------------- 9 (5 in February ; 4 in May).
There were 46 names on the Boarding Department pay roll in February.
The records further show that many employees worked on Saturdays until
the end of April.
Also, Clevenger and Bible testified that foremen in the Boarding Department as
well as employees not regularly assigned to the boarding room worked on the third
shift to help speed production. No records were submitted as to this work, but
the testimony of Clevenger and Bible was not challenged on this point, and their
testimony is accepted.
Basis of selection for third shift work
Clevenger testified that Bible gave him instructions to institute the third
shift and left it up to him to make the actual selections. Clevenger testified
that he selected Wolfe to work on the komet sock order because he was a good,
reliable boarder. He kept Wolfe on the night shift, he testified, after Wolfe
voiced objections to it B
Clevenger further testified that sometime in January because employees were
complaining of discrimination he began making lists of assignments with Bible.
He identified one such list produced by the General Counsel as one written by
Bible listing assignments on all three shifts. The list is undated and does not
specify how long the assignments were to continue. According to Clevenger,
it was one of several prepared while third shifts were used. It lists Rodgers,
Collins, Wolfe, Hanks, and Lettner for the third shift and was obviously used
in February. Clevenger was uncertain as to which names were selected by him
and which by Bible. He did recall that he asked Hanks if she could work the
third shift and that she replied that she would if her daughter, Lettner, would
work with her. Clevenger testified that he spoke with Hanks in advance of her
assignment because she was an older woman. Clevenger then substituted
Lettner for another employee previously assigned.
As to the factors considered in making the selection, Clevenger testified that
the best and most dependable boarders were selected because their work was
needed and also because there was no regular foreman for the third shift.
Later in his testimony, lie stated regularity in attendance was the sole factor
considered. He admitted that no check of attendance records was made, but
that he depended on his memory. He later added experience to his list of
qualifications. He was questioned in detail as to the reasons why some em-
ployees were not selected for the third shift. Some of the reasons .Clevenger
advanced, were. undependability, pregnancy, children at home, and ill health.
In a few instances he could not recall any reason why an employee was not used
on the third shift. As to Douglas Calfee, he testified that he did not assign her
° Smith testified, without contradiction, that on one occasion Clevenger told him that
Wolfe refused to work on the third shift. Smith then spoke to Wolfe and explained
the necessity for the work. Wolfe agreed to help with the order.
807351-50-vol. S6-24
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because she lived 10 to 12 miles away from the plant and had no way to come
to the plant for third shift work.
Bible corroborated Clevenger as to the procedure followed in making third
shift assignments and testified that Clevenger made the decisions, although
they jointly prepared lists as to individual assignments. He further testified
that workers were selected who could work without supervision and get out
work. Later.in his testimony, he added that regularity in attendance was a
factor considered. In previous periods he added, there had been some rotation
in third shift assignments, but there had been no set interval established for
the duration of such assignments and that employees were kept on it until a
necessity for a third shift had passed.
The testimony of Clevenger and Bible that there had been no effort to dis-
criminate against individuals was contradicted by James C. Dalton. Dalton
had been supervisor of the second shift in the Boarding Department until
February 1948 when he was discharged. Dalton testified that he bad a con-
versation with Bible and Clevenger in which Bible stated that he did not want
Wolfe or Mary Self to be assigned to any shift except the third shift and that
they were to be kept on it. He first testified that the conversation took place
a "week or so" after the Mayes hearing. Later he admitted that the conversa-
tion could have been before or after the Mayes hearing. He also testified that
he believed that Mary Self worked the third shift after this conversation.
Bible and Clevenger categorically denied that the alleged conversation with
Dalton had ever taken place. W. E. Badgett, of counsel to the Respondent,
testified that on November 1, 1948, he, together with C. Frank Davis, also of
counsel to the Respondent, interviewed Dalton and that he denied ever receiving
instructions to put any employee permanently on the third shift.
Wolfe worked the third shift during the period in question. Mary Self did
not work a third shift until February 5. Thereafter, she worked 4 days on the
first shift before returning to the third shift for 1 night. Her employment
record does not support the contention that she was permanently assigned to the
third shift, but tends to prove the contrary. From his study of Self's employ-
ment record and the testimony of the witnesses, the undersigned credits the
denials of Bible and Clevenger that any instructions were given to keep Wolfe
and Self on the third shift permanently.
Contentions of the parties ; conclusions
The General Counsel made no contention as to the Respondent's claim. that
the third shift was made necessary by the demands of the business and in and
of itself was not instituted in violation of the Act. The General Counsel rests
his case on the contention that there was discrimination in the assignment of
Wolfe, Rodgers, Collins, and Mary Self to the third shift.
The Respondent's records show that Wolfe worked a total of 36 third shifts
in January and February 1948, the highest total of any boarder. However, the
Respondent's officials testified that it was customary practice not to have women
work alone on the third shift and that if they did work a third shift, a man
should be assigned to work with them. This contention was not challenged.
Under these circumstances, Wolfe's record is best compared with those of the
other male boarders. At this time there were four male boarders, Wolfe, In-
man, Riley Jarnagin, and Clifford Dalton. Dalton never worked a third shift.
Respondent contended without contradiction that Dalton attended school dur-
ing the day and therefore was not assigned to any night shift. Jarnigan's
record shows that he worked 12 third shifts to Wolfe's 16 up to January 23.
MORRISTOWN KNITTING MILLS, INCORPORATED 359
In the week beginning January 26, he worked 4 third shifts, just as Wolfe.
He then was absent until February 23. Whether he would have worked as many
third shifts as Wolfe during this period if he had been at work is a matter of
speculation, although Smith testified that he considered Jarnigan as absent
from third shift work. While there is testimony that Jarnigan might have
preferred night work, the evidence falls short of showing any discrimination
as between Jarnigan and Wolfe in the January-February period.
If there was any discrimination in assignments, it was between Wolfe and
Charles Inman. Clevenger testified that he did not assign Inman to night
work because Inman's wife was pregnant at that time. Wolfe testified that his
wife was pregnant also and that he informed Clevenger of that fact. Clevenger
denied this , but admitted that Wolfe told him that he had no one to leave with
his wife and that she was afraid to be left alone. The undersigned credits
Wolfe's version.
Smith also testified that Inman was fearful of going out at nights and could
not be forced to take night assignments. (However, company records con-
tradict Smith to some extent in that they show that Inman worked 2 nights
in May.)
While, in the opinion of the undersigned the evidence shows that Inman
received more consideration than Wolfe in the assumption of the burden of
third shift assignments, the difficulty with the contention that the basis for
.such favoritism was Wolfe's participation in the Mayes case and his concerted
.activities, is that Inman was a key witness in the Mayes case for the General
Counsel. The decision in that proceeding reveals that he was one of four
boarders who drew up, signed, and circulated a petition for a wage increase,
for which activity one employee was found to have been discriminatorily dis-
charged. Inman testified in support of the General Counsel's case as to the
-discharge and contradicted Clevenger's testimony on important points. Under
these circumstances the undersigned concludes that the disparity in the treat-
ment of Inman and Wolfe was not violative of the Act.
The evidence does establish that Rodgers and Collins were not relieved of
their third shift assignments after they had made protests to Clevenger and
Bible. The General Counsel also points out that their third shift attendance
record would probably have been higher if they had not been absent on certain
-evenings between third shift assignments. He also points out that in the past,
according to employee witnesses, third shift assignments had not lasted more
-than several nights at the most. However, there is no proof that there was any
custom or practice for the relief of any worker after any specified number of
third shifts. Also, the only year other than 1948 for which there are records in
-evidence is 1947. In that year no employee worked more than three third shifts
in a pay period, but the 1947 record does not furnish a good standard for com-
parison because the total number of third shifts worked in that year is less than
the total number of third shifts worked in 1948 before January 26.
In the period ending February 3, three other boarders, besides the four im-
mediately concerned in this proceeding worked third shifts. In the period
ending February 20, there was two others, Pearl Hanks (7 evenings) and Ann
Lettner (5 evenings). The General Counsel points out that Hanks was asked
by Clevenger whether she would work a third shift and that she agreed to do
so if Lettner also was assigned. However, Clevenger's explanation for making
a distinction in Hanks' case is plausible and is accepted. Hanks and Lettner
-each worked more than Collins during this period. The General Counsel con-
.tends that the records warrant the deduction that if Collins had been in at-
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tendance on the eight dates she was absent during this period, she would have
been required to work the third shift, at least on five of those dates which fell
between third shifts dates. While this contention is open to question, the net
result would not have put Collins total substantially ahead of Hanks.
The closest case to that of Collins to substantiate a charge of discrimination is
that of Douglas Calfee. Clevenger testified that he did not assign Calfee to third
shift work because she lived 10 to 12 miles from the plant. He did not extend
similar consideration to Collins who lived 9 miles away.
Calfee like Collins testified in the Mayes case as a witness for the General.
Counsel. She testified that she signed the wage increase petition. She also
gave important testimony as to the activities of Clevenger.
The case of Mary Self furnishes an interesting contrast to that of Collins
and Rodgers. Self quit rather than work a third shift a second time. She was
persuaded to return to work on that third shift, was ill for approximately 2
weeks, and then encountered no trouble in being restored to work on the first:
shift. In her case there is a failure of proof that there was an attempt to dis-
criminate against her by the use of third shift assignments. The treatment
accorded her also sheds doubt on the contentions of the General Counsel with
respect to Wolfe, Collins, and Rodgers.
Lastly, the General Counsel points to the fact that Wolfe, according to his own.
testimony which was not contradicted on this point, complained of the third
shift assignment of himself and Rodgers, Self, and Collins on February 19 and_
that the original charge in this case was received by the Respondent on Feb-
ruary 20. No third shifts then were worked until February 27 and thereafter-
they did not, except in May, attain the same proportions as they did in February.
Smith and Bible testified that the Boarding Department caught up with its,
work in March so that third shifts could be cut down. Saturday work, at higher
pay, was continued until the end of April. The last fact tends to bear out the-
Respondent's contention that third shifts were instituted under pressure of
business at that time and that the third shift was not used as a device for
discrimination.
In the opinion of the undersigned, the evidence does not substantiate the
allegation that third shift assignments were used to penalize workers for their-
union or concerted activities or because they gave testimony in the Mayes case.10'
The evidence establishes the fact that at the time of the Mayes hearing and.
immediately afterwards more third shift work was being assigned to non-
participants in that hearing than to employee witnesses who participated in _
that proceeding. In the period from January 26 to February 20, the period in
which the General Counsel alleges that the discrimination occurred, a sub-
stantial proportion of the third shift burden was assigned employees other than-
Wolfe, Self, Collins, and Rodgers.
Company records and the testimony of Bible and Clevenger warrant the con--
elusion that there was no plan for rotation and duration of third shift assign-
nlents. Special consideration was given to some employees either in not assign-
10 The evidence as to union membership or activities by Self , Rodgers, or Collins is
meager or nonexistent. Wolfe's union membership was known before February 1948,.
or suspected, according to Clevenger's testimony. He also wore a union button. Collins.
testified that she had joined the Union in the Fall of 1947, but there is no proof that
the Respondent knew this . Self merely attended the February 3 meeting . Rodgers testi-
fied that she had joined the Union and had wore a union button 1 day. Again, there is-.
no proof that Respondent was aware of her affiliation. The Respondent -had full knowl-
edge of their participation in concerted activities for a wage increase from their testimony-
in the Mayes hearing and from the observation of supervisors.
MORRISTOWN KNITTING MILLS, INCORPORATED 361
ing them to third shifts or excusing them when they complained. Yet this
favored group included those who had been key witnesses against the Respondent
and had indicated in their own testimony that they had engaged in concerted
activities to obtain a wage increase. There even was a difference in treatment
between Self and Rodgers and Collins. The Respondent acquiesced in the
independent attitude Self adopted towards night assignments, but was adamant
in the cases of Rodgers and Collins. Of course,. the fact that not all those
engaged in concerted activities or who testified in a Board proceeding were not
discriminated against does not necessarily prove that some were not singled
out for such treatment. However, the evidence does not establish discrimination
against Mary Self, Edwin Wolfe, Ruth Rodgers, and Sarah Collins because
of their protected activities, but rather an unsystematic method of third shift
assignments which, by its very nature, bore more heavily on some than on others.
C. The alleged discriminatory discharge
On February 23, 1948, Wolfe was reassigned to the second shift and remained
,on that shift except for one third shift assignment until his discharge on
April 2, 1948. There was one set of boards on which he regularly worked and
on which he customarily boarded silk socks, sizes 11 and 12. A few days before
April 2, Wolfe asked Coy Trent, supervisor of his shift, if he might transfer
to the boards regularly assigned to another employee, Zella Talley. She boarded
:silk socks also, sizes 11 and 111/ Wolfe preferred working on her boards
since, he testified, on half her boards socks one-half size smaller than those on
half his boards would be boarded, thus making the work a little easier. He also
claimed that there were more silk socks available for those boards than for his
boards. In any case Trent transferred Wolfe to Zella Talley's boards.
On April 2 Clevenger, who was then acting as supervisor of the first shift,
told Trent that there was a rush order of crew socks, a type of cotton sock, that
had to be boarded. Trent, according to his credited testimony, asked Clevenger
whether Wolfe would be a satisfactory person for that assignment and Clevenger
told him that he could not get a better one for that particular job. Trent then
went to Wolfe who was working at Talley's boards. He asked Wolfe to change
back to Wolfe's regular boards to work on the crew sock order. Wolfe voiced no
objection. They both went over to Wolfe's boards and made the necessary
adjustment so that the boards could be changed from silk to crew sock work."
Trent and Wolfe then went up to the front of the room to look for work for
Wolfe's boards. Watkins, who was Trent's superior in the managerial hierarchy,
was standing at the desk in front of the room. Wolfe asked Watkins why he was
receiving a change in assignment. Watkins replied that the crew socks had
to be boarded to be shipped out the next day. Wolfe declared that that was not
the reason for his transfer but that Lavada Davis had caused the change to be
"The incidents related here concern the discharge of Wolfe by W. C. Watkins, foreman
of the Boarding Department . In addition to Wolfe and Watkins, testimony concerning
the discharge and the circumstances leading up to it, was given by Trent and boarders
Lavada Davis and Margie Davis . Other employees added corroborative testimony as to
particular incidents. The undersigned found that Watkins, Trent, Lavada Davis, and
Margie Davis were in substantial agreement concerning what took place, although they
differed in detail . The undersigned has based his findings herein primarily on a recon-
ciliation of their testimony . Wolfe's testimony did not impress the undersigned as reliable.
He could not recall circumstances of vital importance surrounding the discharge and by his
demeanor in testifying indicated that be was confused and had difficulty recollecting
exactly what took place. The undersigned has accordingly not given great weight to his
testimony except when it was corroborated by the testimony of other witnesses whom
the undersigned found reliable.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made. Watkins denied this but Wolfe maintained that that was so and declared
that he had an entry to that effect in a little book that he carried. Watkins
stated that Wolfe had come up with a chip on his shoulder but Wolfe replied
that he merely wanted an answer to his question and that he had obtained a
letter from the company stating that lie could discuss any problem that arose.
In the course of the conversation, Wolfe maintained that he had been hired as a
silk boarder, that is, only to board silk socks. Watkins denied this and told him
if that were so he would have had to be discharged when there was no silk
work for him to board. Watkins told him that he had to board the crew socks
to which he had been assigned and Wolfe went back to his place of work.
Lavada Davis testified that she had been suffering from rheumatism prior to
April 2 and that she complained to Watkins that crew socks were too heavy
for her to pull off the boards and that she would have to quit if she could not be
assigned to the lighter silk socks. Wolfe probably referred to such a conversa-
tion when he told Watkins that he had a note in his book that Davis had caused
him to be transferred. In any event, Trent, after he assigned Wolfe to boarding
crew socks, transferred Lavada Davis to the boards on which Wolfe had pre-
viously worked.
When Wolfe returned to his boards he accused Davis of asking for the boards
on which he had been working, thus causing his transfer. Davis denied this and
said she would prove it. She called Watkins over and then Trent, and. in the
presence of Wolfe, asked them whether she had asked for Wolfe's boards. They
both said, no. Watkins *and Wolfe had a further discussion at that time,
according to their own testimony, in which Watkins, after some angry words,
suggested that he quit. Wolfe replied in substance that he wanted to work and
that Watkins had an opportunity to quit if he wished to do so. Watkins then
walked away and Wolfe returned to work. In approximately a half hour Wat-
kins returned to the boarding room and went to Wolfe's place of work. Watkins
testified that his purpose in entering into further discussion with Wolfe was,
as he put it, to straighten things out and to come to an understanding with him.
Wolfe's version of what occurred was that Watkins told him that all he wanted
to do was to argue, and that he, Wolfe, replied that the matter was settled. Wat-
kins then retorted that Wolfe had started the matter. Watkins then accused
him of not being willing to work and Wolfe denied this. Thereupon, Wolfe testi-
fied, Watkins said he was firing him. Wolfe then asked if lie was being dis-
charged because of his union activities, to which Watkins replied, "Don't start
that damn stuff."
Watkins version was that he started the conversation by telling Wolfe that they
both could not run the boarding room and that Wolfe replied, "Bill, we have had
our argument. You get your money from the same man I do and there is noth-
ing you can do about it." Thereupon, Watkins testified he told Wolfe that he
would show him that there was something he could do about it, and that he told
him to even up his work preparatory to being terminated. Two other persons
overheard the conversion or at least parts of it. Lavada Davis and Margie Davis
were working in aisles on either side of Wolfe's boards. Lavada Davis testi-
fied that she heard Wolfe tell Watkins that he got his money from the same
company from which he got his money and there was nothing that Watkins could
do about it. She heard Watkins reply that "we will see whether there is any-
thing that can be done about it," that she observed Watkins go to the office, come
back and tell Wolfe to even up his work. She further testified that she heard
Wolfe ask if he was discharged and heard Watkins say that he was. She did
MORRISTOWN KNITTING MILLS, INCORPORATED 363
not hear the rest of the conversation. Margie Davis gave the following version
of what occurred:
Q. Was anything more said about that time, Miss Davis?
A. Yes, Sir. Gene said, "Bill," said, "I thought we settled this up at the
desk," and Bill said, "No, it isn't near settled." Gene said, "I wish you
would settle it then." And lie said, "I am going to settle it." And Gene
said, "Bill, you get your money from the same man and the same company
that I do, don't you?" And Bill said, "Yes." And he said, "Well, there's
not a thing you can do about it."
Q. Was that the full conversation?
A. Yes, but Bill said, "Al'e will see whether there is something I can do
about it or not."
Q. Did you hear anything that was said between then at this time?
A. Well, I don't know. I was working. I just heard that.
Q. Then what was done?
A. Bill left again, and he went back to the desk where the bosses were.
There was some bosses standing back there. And then I looked around to
put my work on the other side of the boards, and I saw Bill go through the
pairing room towards the office. And he came back with a sheet of paper,
and he said, "Gene, even up your dozens." He says, "What do you mean?
I'm fired?" And he said, "Well, yes." He said, "Well, what did you fire me
for?" and he said, "Well, ask the others."
Q. What did Wolfe do then?
A. He went ahead and was evening up his dozens. He says, "Bill, you
know I belong to the union," and Bill said, "I know it, but," he said, "there
isn't anything they can do about it."
Both Margie Davis and Lavada Davis were working at the time and admitted
that they were not certain that they heard the entire conversation between
Watkins and Wolfe. As to those matters which they testified they heard, they
were in substantial agreement. Their testimony does corroborate that of
Watkins as to what was said immediately before he discharged Wolfe. The
undersigned credits the testimony of Watkins as corroborated on this point.
Wolfe was given a discharge slip which listed as the reason for his discharge
"insolence, noncooperation, and contumacy."
Conclusions
The General Counsel maintains Wolfe was not discharged for the assigned
reasons but because of his concerted and union activities and because he testified
in a prior Board proceeding. In support of his contention the General Counsel
points to the fact that management representatives freely admitted that Wolfe
was a very capable employee, that this was the first incident of its type involv-
ing Wolfe which had occurred, and that Wolfe had accepted the transfer and
was at work when Watkins came up to him and started the discussion precipitat-
ing the discharge. The General Counsel further points to the fact that Watkins
did not ask Trent for his recommendation in this case. The General Counsel
also calls attention to the fact that the Intermediate Report in the Mayes case
was received by the Respondent at about the time of the discharge. Board
records do indicate that that report was mailed on March 30, 1948, but the
date of actual receipt does not appear in Board records.
There is no substantial proof that the transfer of Wolfe on April 2 by Super-
visor Trent was motivated by other than business considerations. When Wolfe
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
received an explanation for the transfer from Watkins he denied that the ex-
planation given was the correct one and in effect called Watkins a liar. He
then went back to his place of work and created a disturbance by accusing Lavada
Davis of causing his transfer. When Watkins reprimanded him on this occasion
and suggested he quit, Wolfe retorted that Watkins could quit too. When
Watkins carne back after an interval and had another conversation with Wolfe,
Wolfe attempted to cut him short and also told him in the hearing of two other
boarders that they both received their salaries from the same company and that
there was nothing Watkins could do about it. Watkins thereupon discharged
him. In the opinion of the undersigned there has been a failure of proof
that Wolfe was discharged in violation of the Act. The key question herein
is the conclusion to be drawn from the final conversation between Wolfe and
Watkins, and particularly the latter's motives in starting that conversation and
taking the action he did. There is no proof that Watkins came up to Wolfe
with any other intention other than to reach an understanding over the previous
incidents which under the circumstances he had a clear right to do. There is
every indication that Watkins had not come to Wolfe with the preconceived
notion of discharging him, but that he acted on the spur of the moment after
Wolfe, in effect, had challenged his authority over the boarding room personnel.
Under these circumstances the undersigned credits Watkins' testimony as to his
reason for starting the last conversation and taking the action of discharging
Wolfe, and accordingly finds that this does not substantiate the contention that
Wolfe was discharged in violation of the Act.
IV. THE EFFECT OF THE UNFAIR LA13OR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III above, occurring in
connection with the operations described in Section I above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States, and such of them as have been found to be unfair labor practices, tend
to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Since it has been found that the Respondent has engaged in certain unfair
labor practices it will be recommended that it cease and desist therefrom in
order to effectuate the policies of the Act. It has been found that the Respondent,
by the conduct of key supervisory officials, as well as by the activities of an
employee sent to the union meeting of February 3, engaged in surveillance of
that meeting. While it is true that the supervisory officials left that meeting
after a relatively short period, their presence there constituted an intimidation
of production employees which would reasonably have the effect of putting em-
ployees in fear that their attendance at union meetings would become known to
management officials.
In the Mayes case, the Board concluded that the Respondent had discrimi-
natorily discharged one employee and had committed other independent violations
of the Act. Under these circumstances the conduct of the Respondent's super-
visory officials at the union meeting of February 3, 1948, cannot be considered an
isolated violation of the Act, but rather one in a list of violations seriously inter-
fering with the rights of its employees under the Act and requiring affirmative
remedial action.
In order to assure employees of their full freedom to engage in concerted or
union activities if they desired, steps must be taken, in the opinion of the under-
MORRISTOWN KNITTING MILLS, INCORPORATED 365
signed, to assure them that they can engage in such activities free from any sur-
veillance or interference therein. It will accordingly be recommended that the
Respondent cease and desist from engaging in the activity herein found violative
of the Act, and from interfering with the rights of its employees in any like or
related matter. On the basis of the foregoing findings of fact and upon the
entire record in the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Textile Workers Union of America, affiliated with the Congress of Industrial
Organizations, is a labor organization admitting to membership employees of
the Respondent.
2. By engaging in the surveillance of a union meeting on February 3, 194S, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (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 did not transfer and assign employees Edwin Eugene Wolfe,
Ruth Rodgers, Sarah Drenin Collins, and Mary Self to a less desirable work
shift and to more arduous and less desirable work than they formerly had in
violation of the Act.
5. The Respondent, on or about February 1.0, 1948, did not constructively
discharge Mrs. Ruth Rodgers in violation of the Act.
6. Respondent, on or about April 2, 1948, did not discharge Edwin Eugene
Wolfe in violation of the Act.
7. The Respondent, by its officers, agents, representatives, and employees, has
not inquired, questioned, or interrogated its employees concerning their union
desires, sympathies, memberships, activities, meetings, and union business.
8. The Respondent has not urged, threatened, and warned its employees to
refrain from assisting, becoming members of, or remaining members of the
Union.12
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the Respondent, Morristown Knitting Mills, In-
corporated, Morristown, Tennessee, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Engaging in any manner in the surveillance of union or concerted activi-
ties of its employees ;
(b) In any like or related matter interfering with, restraining, oa- coercing its
employees in the exercise of their rights to self-organization, to form labor organ-
izations, to join or assist Textile Workers Union of America, CIO or any other
labor organization, to form labor organizations, bargain collectively through
representatives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection as guar-
anteed in Section 7 of the Act.
11 The Respondent has submitted 70 proposed findings of fact. Of these the following
have been accepted : Nos. 1, 2, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24,
25, 26, 27, 29, 30, 31, 33, 34, 35, 39, 41, 42, 43, 44, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56,
66, 67, 68, 69. The Respondent also submitted 8 proposed conclusions of law. Of these
items 1, 2, 3, 4 and 5 have been accepted. The remaining items in the proposed findings
of fact and conclusions of law have been rejected either as contrary to the findings herein
or not relevant to the determination of the issues.
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the undersigned finds will effec-
tuate the policies of the Act :
(a) Post at its plant at -Morristown, Tennessee, copies of the notice annexed
hereto marked "Appendix A." Copies of said notice, to be furnished by the
Regional Director for the Tenth Region, shall, after being duly signed by said
Respondent's representative, be posted by said Respondent immediately upon
receipt thereof and maintained by it for a period of sixty (60) consecutive days
thereafter in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by said Respondent
to insure that said notices are not altered, defaced, or covered by any other
material ;
(b) File with the Regional Director for the Tenth Region, as an agent for
the Board, within twenty (20) days from the date of service of this Intermediate
Report, a report in writing setting forth in detail the manner or form in which
it has complied with the foregoing recommendations.
It is further recommended that the complaint be dismissed insofar as it
alleges that the Respondent assigned four named employees to a less desirable
work shift and constructively discharged one of those employees because of that
assignment and its refusal to change it; that the Respondent discriminatorily
discharged employee Edwin Wolfe on April 2, 1948; and that the Respondent in
other respects other than those specifically set forth above, violated Section 8
(a) (1) of the Act.
All parties are hereby advised that upon the filing of this Intermediate Report
and the serving of copies thereof upon the parties-as provided in Section 203.45
of the Rules and Regulations of the National Labor Relations Board-Series 5,
as amended, effective August 18, lfli8-the Board will enter an order transferring
the case to itself, and will serve a copy of the order upon each of the parties,
setting forth the date of the transfer aforesaid.
If, within twenty (20) days from the (late of service of this Intermediate
Report, the Respondent shall satisfy the Regional Director, as the agent of the
Board, that it has complied, or will comply, with the foregoing recommenda-
tions, it is recommended that the National Labor Relations Board issue an
order, or take other appropriate action, to close the case within twenty (20)
days from the date of service of this Intermediate Report that it has complied,
or will comply, with the foregoing recommendations, it is recommended that
the National Labor Relations Board issue an order requiring the Respondent
to take action aforesaid.
All parties are advised, however, that any party may, within twenty (20) days
from the date of service of the order transferring the case to the Board, file
with the Board, Washington 25, D. C.-pursuant to Section 203.46 of the afore-
said Rules and Regulations-an original and six copies of a statement in writing
setting forth such exceptions to the Intermediate Report, or to any other part
of the record or proceeding (including rulings upon all motions or objections)
as he relies upon, together with the original and six copies of a brief in support
thereof. Matters not included in the Statement of Exceptions may not thereafter
be urged before the Board, or in any further proceeding under the Act. Any
party also may, within the same period, file an original and six copies of a
brief in support of the Intermediate Report. Immediately upon the filing of
such a Statement of Exceptions and supporting brief, or brief in support of
the Intermediate Report, the party filing the same shall serve a copy thereof
upon each of the other parties. Proof of service oil the other parties of all
papers filed with the Board shall be properly made as required by Section 203.85.
MORRISTOWN KNITTING MILLS, INCORPORATED 367
:Should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board, within ten (10) days from the
date of service of the order transferring the case to the Board.
The parties are further advised that, in the event no Statement of Exceptions
is filed as provided by the aforesaid Rules and Regulations, and in the absence
of compliance, all objections and exceptions to this Intermediate Report shall
be deemed waived for all purposes-as provided in Section 203.48 of the afore-
said Rules and Regulations-and the findings, conclusions, and recommenda-
tions contained herein shall be adopted by the Board and become its findings,
-conclusions, and order.
Dated at Washington, D. C., this 5th day of April 1949.
SIDNEY L. I+EILER,
Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Stelations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT in any manner engage in any surveillance of union or con-
certed activities.
WE WILL NOT in any like or related matter interfere with, restrain, or
coerce our employees in the exercise of their right to self organization, to
form labor organizations, to join or assist TEXTILE WORKERS UNION OF
AMERICA, CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or
protection.
ALL OUR EMPLOYEES are free to become or remain members of this Union
or any other labor organization.
MORRISTOWN KNITTING MILLS, INCORPORATED,
Employer.
By ---------------------------------------------------
(Representative ) ( Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.