Mount Hope Finishing Co.

National Labor Relations Board - Board Decisions

Jul 30, 1953

106 N.L.R.B. 480 (N.L.R.B. 1953)

480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminated against Carl Cavallaro and John Carlton by discharging them because of their
union membership and activities it will be recommended that Respondent offer each of them
immediate reinstatement to their former or substantially equivalent position without preju-
dice to their seniority or other rights and privileges. It will be further recommended that
Respondent make each of them whole for any loss of pay he may have suffered by reason
of Respondent's discrimination by payment of a sum of money equal to that which each
would normally have earned as wages from the date on which he was discharged to the date
of an offer of reinstatement, less his net earnings during that period. The loss of pay shall
be computed on the basis of each separate calendar quarter, or portion thereof during the
period from Respondent's discriminatory action to the date of an offer of reinstatement.
The quarterly periods shall begin on the first day of January, April, July, and October.
Earnings in one particular quarterly period shall have no effect upon the back-pay liability
for any other period. In order to insure compliance with the foregoing back pay and rein-
statement provision it is recommended that Respondent, upon reasonable request, make
all pertinent records available to the Board and its agents . Respondent's unlawful conduct
in this case in my opinion discloses a fixed purpose to defeat self-organization and its
objectives. Because of Respondent's unlawful conduct and its underlying purposes, I am
convinced that the unfair labor practices found are persuasively related to the other unfair
labor practices proscribed by the Act and that the danger of their commission in the future
is to be anticipated from the course of Respondent's conduct in the past. The preventive
purposes of the Act will be thwarted unless the recommendations are coextensive with the
threat. In order therefore to make effective the interdependent guarantee of Section 7 to
prevent a recurrence of unfair labor practices and to minimize strife which burdens and
obstructs commerce and thus to effectuate the policies of the Act it will be recommended
that Respondent cease and desist from infringing in any manner upon the rights guaranteed
by Section 7 of the Act.
CONCLUSIONS OF LAW
1, United Brotherhood of Carpenters and Joiners of America, AFL, is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Carl Cavallaro
and John Carlton thereby discouraging membership in the Union, Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the
Act.
3. By interfering with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
MOUNT HOPE FINISHING COMPANY, MOUNT HOPE FINISH-
ING COMPANY, INC., JOSEPH K. MILLIKEN, FRANK L.
DAYLOR AND ROBERT D. MILLIKEN and TEXTILE WORK-
ERS UNION OF AMERICA, CIO. Case No. 1 -CA-1085. July
30, 1953
DECISION AND ORDER
On August 5, 1952, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above -entitled proceeding, finding
that the Respondents had engaged in and were engaging in certain
unfair labor practices and recommending that they cease and
desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto.
106 NLRB No. 95.
MOUNT HOPE FINISHING COMPANY 481
Thereafter, the Respondents filed exceptions to the Intermediate
Report with a supporting brief. On April 16, 1953, the Board at
Washington, D. C., heard oral argument. The Respondents, the
General Counsel, and the Union participated.
At the hearing the Respondents excepted to the Trial Ex-
aminer 's ruling granting the General Counsel's motion to
amend the complaint by adding a new paragraph numbered
25-A alleging that the Respondents discontinued operations at
the North Dighton, Massachusetts, plant and organized Mount
Hope, North Carolina, for the purpose of evading collective
bargaining with the Union. The motion was objected to by the
Respondents on the ground that the amendment was belated and,
if granted, would result in the denial to the Respondents of an
opportunity to prepare their defense to the new allegations. The
Trial Examiner overruled the objection. The Trial Examiner
also refused the Respondents' request for an immediate
continuance, but stated that he would entertain a new motion
for a continuance at the close of the General Counsel's case if
the Respondents pleaded surprise . No such motion was made by
the Respondents at the close of the General Counsel's case.
The Trial Examiner in granting the General Counsel's motion
to amend the complaint, commited no abuse of discretion.
Moreover, the Respondents were given an opportunity by the
Trial Examiner to renew their motion for continuance on the
grounds of surprise in order to prepare their defense but did
not elect to do so. The Trial Examiner's rulings in these
respects are hereby affirmed.'
The Respondents also contend that the Trial Examiner by
"advising and then insisting " that the General Counsel amend
the complaint by adding the above-mentioned paragraph 25-A
had assumed the position of prosecutor, in violation of Section
3 (d) of the Act, and Section 11 of the Administrative Procedure
Act, and therefor acted in a partial and prejudicial manner. We
find no merit in this contention. Both the charge and amended
charge contain an allegation similar to that in paragraph 25-A.
Thus, the charge alleged that the "Employer . . . in utter
defiance of the Act has undertaken and is now carrying forward
its plan to defeat the rights of the employees by removing its
plant from North Dighton, Massachusetts, to Butner, North
Carolina, where it proposes to reestablish its plant . . ."
The amended charge, although couched in different words,
contains a substantially similar allegation. The amended
complaint alleged that Mount Hope, (North Carolina,) was the
successor to Mount Hope, Massachusetts; that the Respondents,
including Mount Hope, (North Carolina), refused to reinstate
the employees discriminated against (paragraph 25), and
bargain with the Union (paragraph 19). Furthermore, in his
opening statement at the hearing, the General Counsel predicated
his case on the theory stated in paragraph 25-A. Thus, he said:
"It is our contention that . . . Mount Hope Finishing Company,
'Cf. Star Beef Company, 92 NLRB 1018.
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Incorporated, is actually a successor to and, naturally, the alter
ego of the Mount Hope Finishing Company of [Massachusetts],
and we say the closing down in North Dighton was also in bad
faith. It was made for the purpose of evading the Union, which
had won the election and which was concededly the bargaining
agent. . . . We also say that that was evidence of bad faith and
further evidence of the refusal to bargain, which had been taken
right along. When the company opened up in North Carolina, we
allege, we expect to prove, that that was only for the purpose of
evading the Union." The Trial Examiner, therefore, did not
commit an abuse of discretion or demonstrate any bias against
the Respondents when in an attempt to have the General Counsel
clarify his position, he suggested that the latter amend the
complaint to conform to the theory expounded in his opening
statement:
On September 19, 1952, the Respondents filed a motion with
the Board to reopen the record herein for the purpose of taking
additional testimony at Durham, North Carolina, before a new
Trial Examiner concerning the relationship between Respondent
Mount Hope, (North Carolina) and the other Respondents and
concerning the circumstances surrounding the formation of
Mount Hope, (North Carolina). On September 26, 1952, the
Board denied this motion without prejudice to the Respondents'
right to renew it. On April 17, 1953, the Respondents, following
the oral argument before the Board, renewed the motion. The
General Counsel and the Union opposed the motion. It appearing
that: (a) The Respondents do not show in their motion what
additional evidence they propose to introduce at a reopened
hearing; (b) Robert D. Milliken, treasurer and the sole owner
of Mount Hope (North Carolina), and Frank L. Daylor, vice
president of Mount Hope (North Carolina), the individuals
principally responsible for the formation of Mount Hope (North
Carolina), have already fully testified concerning the matters
2 The Trial Examiner 's final statement with respect to this matter was as follows:
Trial Examiner Whittemore: Well, I don't know as it is necessary to amend the com-
plaint. The vagueness, perhaps, is clarified by your opening statement. It does provide
counsel for the respondents with an idea of what your real case is, but it appears to me
that from your latter statement you again take the position that the move to North Carolina
was to evade the responsibility.
Mr. Coven: That is part of it.
Trial Examiner Whittemore: Well, then, that move, however you may technically wish
to set it up, whether these named individuals were operating as the company, as the cor-
poration, or as both at the same time, that it would appear to me it would be possible,
where it is quite flexible- -and the imagination in the Boston regional office is not lacking--
that you should be abletocompose a very brief paragraph to amend the complaint to state
precisely what you have said in your opening argument, and I think it would cover what
Mr. Brooks has pointed out is at least a lack- -although I am not saying it is a fatal
lack--in the complaint to make it clear in the pleading themselves precisely what you
consider to be the contention in so far as unfair labor practices are concerned between
these three individuals operating as a company and their appearance later as a corpora-
tion.
Trial Examiner Whittemore: Well, let me just suggest that at the first recess you
consider the matter.
MOUNT HOPE FINISHING COMPANY 483
specified in the motion; (c) the Respondents were given every
opportunity to, and did in fact, fully litigate the issues concern-
ing the relationship between Mount Hope (North Carolina) and
the other Respondents and the circumstances surrounding the
formation of that corporation; and (d) the Respondents, including
Mount Hope (North Carolina), did not avail themselves of the
opportunity, given to them at the hearing, to move for a transfer
of the hearing to North Carolina for that purpose, we hereby
reaffirm our order denying the Respondents' motion to reopen
the record.
On January 24, 1953, the Respondents also filed with the Board
a motion to reopen and enlarge the record herein by the addition
of the following documents: (1) A letter from the United Textile
Workers of America, A. F. of L., to Mount Hope Finishing
Company dated January 21, 1953, requesting recognition as the
collective-bargaining representative of the production and
maintenance employees at the Respondents' Butner, North
Carolina, plant; (2) the Mount Hope (North Carolina) reply
thereto of January 23, 1953, advising that the request for
recognition was being referred to the Board; and (3) the petition
for certification of representatives filed with the Board by the
United Textile Workers of America, A. F. of L., on January 22,
1953. As it is the practice of the Board to take judicial notice of
its own records and proceedings, particularly those pertaining to
employees of the same employer,' we shall grant the Respond-
ents' motion insofar as it pertains to those documents which are
part of the official file in the representation proceeding insti-
tuted by the United Textile Workers of America, A. F. of L., on
January 22, 1953, covering the Respondents' employees at the
Butner, North Carolina, plant.
Also, on February, 12, 1953, the United Textile Workers of
America, A.F. of L., filed a motion with the Board requesting
the Board to take notice of its petition for certification of repre-
sentatives of Mount Hope (North Carolina) employees at the
Butner, North Carolina, plant and the proceeding in connection
therewith in determining the issues involved in the present case.
The motion is hereby granted.
The Board has reviewed all other rulings of the Trial
Examiner and finds with the single exception hereinafter noted,
that no prejudicial error was committed. The rulings are hereby
affirmed, except the ruling on the admission of evidence which
we hereinafter overrule. The Board has considered the Inter-
mediate Report, the Respondents' exceptions and the brief, the
oral argument, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the
Trial Examiner, insofar as they are consistent with our findings,
conclusions, and order herein set forth.
1. The Trial Examiner found that Respondent Mount Hope
(Massachusetts) on July 31, 1951, laid off about 185 employees
at its North Dighton, (Massachusetts), plant in violation of
3J S. Abercrombie Co., 83 NLRB 524; Pacific Maritime Association et al ., 89 NLRB 894.
322615 0 - 54 - 32
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8 (a) (3) and (1) of the Act. We do not agree. The record
in our opinion, shows that 120 of these employees were laid off
because of a steady decline in the volume of business and in
order to reduce high operating costs. Although we find unlawful
discrimination as to the additional 65 employees laid off on July
31, we conclude that such discrimination is grounded only in
the acceleration of the date of their separation.
On the record before us we are not convinced that the
allegations of the complaint with respect to the layoff of the
185 employees have been fully sustained by the evidence for
the following reasons. While it is true that the layoff was made
a few days after the Union began its organizing campaign, there
is credible evidence showing that a steady decline in the volume
of the Company's business during the first 7 months of 19 51 made
a reduction in the working force desirable if not necessary, and
that for several months before the layoff the plant was operating
on a 3 to 4 day a week basis. The record further shows that
since April 1951 the management had under consideration a
plan to reduce its working force, and that this plan was revived
in the middle of July 1951. At that time J. K. Milliken, Jr.,
had a list of employees prepared by departments with the name,
job classification, and the length of service of each employee,
for the purpose of using it as a guide in selecting those em-
ployees to be laid off. The list was in the hands of Milliken
"at least a week and maybe two prior to July 28." In the first
part of the week commencing July 23, Milliken discussed the
layoff with his assistant, Carr, and the department heads.
Milliken informed them that the volume of business had dropped
too low and that a short week was not satisfactory to the em-
ployees. At the time, the management "felt" that the layoff of
20 percent of its working force would be a "reasonable ap-
proach" or a "proper move." There was, however, nothing
final about the management's decision with respect to the
number of employees to be laid off. Before the management
received the Union's request for recognition and bargaining on
July 28, it had already selected 120 employees for layoff, such
layoff to be made effective during the week of July 29 or the
week of August 5. It is true that after the receipt of the Union's
request for recognition the management decided to increase
the number of the employees to be laid off from 20 percent to
30 percent, or from 120 to about 190 employees. However the
testimony of J. K. Milliken, Jr., a witness for the General
Counsel, shows that the management at the time contemplated
a further reduction in force in the future and that an additional
65 employees would have been eventually laid off for economic
reasons. In the absence of some evidence to the contrary we
cannot say that these latter employees would not have been laid
off for economic reasons at a later date.
Nor are we convinced that the selection of employees for the
July 31 layoff was made on a discriminatory basis. It is true
that the selections were made a few days after the Union began
its organizational campaign in the plant and also after J. K.
MOUNT HOPE FINISHING COMPANY 485
Milliken, Jr., had interrogated 2 employees concerning the
organizational drive. However, neither circumstance is suffi-
cient to support a reasonable inference that the management
at the time of the selection was aware of the identity of the
employees who had joined the Union. The solicitation of em-
ployees for membership in the Union had been in progress for
only 3 days. Some 323 employees had signed up with the Union
during this period. There is no showing that the management
had engaged in surveillance or that it knew the identity of the
union leaders. The 2 instances of interrogation relied upon by
the Trial Examiner do not furnish adequate basis for such an
inference. In one case, J. K. Milliken, Jr., asked an employee
if he had signed a union card, where he had obtained it, and
what he did with it. In another instance, he asked another
employee who the union leaders were. It does not appear that
either of the employees questioned supplied Milliken with the
names of union leaders or the names of employees who dis-
tributed cards. The Trial Examiner's finding that 128 of the
185 employees laid off were union members likewise does not
in itself constitute conclusive proof that the selection was
discriminatory.
While the record indicates that 65 additional employees, who
were selected for the layoff after the Company received the
Union's request for recognition, would have been eventually
laid off for economic reasons, we are of the opinion that the
date of the layoff of these employees was accelerated to avoid
collective bargaining with the Union concerning their layoff at
some future date and that their layoff on July 31, 1951, was
therefore in violation of the Act. Questioned about the reasons
for the increase in the number of those to be laid off on July
31, 1951, from 20 percent to 30 percent, J. K. Milliken, Jr.,
testified that:
business was worse than we could possibly have antici-
pated, and we could easily get along without that approxi-
mate 30 percent figure of the number of people on the
payroll, and we felt that if by chance we might at some later
date find it difficult to reduce the number on the payroll, it
was serving the best interests of the company to make one
move.
Milliken also testified on cross-examination as follows:
.. I think that the position in which I found myself at that
time, I was well aware that in order to lay off, if you had a
union shop, you would be required to negotiate and barter
on the thing, and it seemed to me that it was so obvious
that we were going to have to do it anyway, that we might
just as well get it behind us.
Inasmuch as the date of the layoff of these 65 employees was
admittedly accelerated by the Company in order to avoid
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective bargaining with the Union with respect to their
ultimate layoff, the Company's action in accelerating such layoff
constituted an unlawful discrimination with regard to the hire
and tenure of their employment calculated to discourage union
and concerted activities of the Company's employees , in viola-
tion of Section 8 (a) (1) and ( 3) of the Act.4
2. The Trial Examiner found that the strike which began on
August 13, 1951, was caused by the Employer ' s unfair labor
practices . We agree . We have found that Mount Hope (Massa-
chusetts ) discriminated on July 31 , in regard to the hire and
tenure of employment of some 65 employees by accelerating
their layoff , thereby violating Section 8 (a) (1) and (3) of the Act.
Also, as hereinafter found the Respondents have unlawfully
refused to bargain in good faith with the Union since July 28,
1951 , the date of the receipt of the Union's request to bargain.
As the layoff of July 31 and the Respondents ' failure to bargain
with the Union prior to the strike were among the reasons that
motivated the membership of the Union to vote for a strike, we
find that the August 13 strike was an unfair labor practice strike
in its inception.
3. We agree with the Trial Examiner that the closing of the
North Dighton (Massachusetts ) plant pursuant to the September
19 decision of Mount Hope (Massachusetts), the attendant dis-
charge and lockout of the employees of that plant , the formation
of Mount Hope (North Carolina ) and the partial removal of the
operations to a new plant at Butner (North Carolina), were
actions taken by these Respondents to evade their responsibility
under the Act to bargain with the Union.
The strike began on August 13, 1951 . Picket lines were set up
around the plant . By the end of the first week of the strike about
126 of the 407 employees on the Company ' s payroll for the pre-
ceding week responded to the strike call. Alleging violence on
the picket lines, the Company obtained a restraining order
against the Union from the State court . In the meantime, and
beginning on August 16, a number of conferences were con-
ducted under the auspices of the State Board of Conciliation
and Arbitration , in an effort to settle the strike. On September
17 a Board - ordered election was held which the Union won. The
next day the negotiations for the settlement of the strike were
resumed but the parties were unable to reach agreement.
Closin g, of the North Dighton plant : It was at this juncture
that Mount Hope (Massachusetts ) called a special meeting of its
board of directors which was held on September 19, 1951. At
this meeting after a " general discussion of business condi-
tions," the board of directors resolved as follows: (1) "effec-
tive immediately . . . [ to] cease operations at Dighton, Massa-
chusetts "; (2) "That Frank L. Daylor , consultant , be authorized
and directed to negotiate and secure offers for the possible sale
of the tangible ' assets of the Company "; and (3) "That Robert
Milliken , Assistant Treasurer , be directed and empowered to
A William A. Mosow Beer Distributors , 92 NLRB 1727; Pillsbury Mills, Inc , 74 NLRB 1113.
MOUNT HOPE FINISHING COMPANY 487
run out the goods now in process in the plant and to so notify
customers." The North Dighton plant was shut down on October
20, 1951, after it finished processing the greige goods in
production. The plant never, so far as the record shows,
resumed operations.
The Respondents contend that Mount Hope (Massachusetts)
had no intention on September 19 or thereafter to abandon
operations at the North Dighton plant, and that they intended
and presently intend to reopen the plant if, as, and when it can
be operated profitably. In support of this contention the Re-
spondents rely upon the testimony of Respondent Frank Daylor
to the effect that in carrying out the September 19 directive of
the board of directors he made diligent efforts to lease or sell
the North Dighton plant to other companies engaged in finishing
operations, or to reestablish finishing business at the plant on a
cooperative basis, and that he is continuing discussions with
interested parties in an attempt to work out some arrangement
for the resumption of operations on a profitable basis. We see
no merit in the Respondents' contention, as Daylor's testimony
is refuted by the Respondents' conduct. The broad and unquali-
fied directive issued by the management in the September 19
resolution indicates that a permanent, rather than a temporary,
cessation of operations at the North Dighton plant was contem-
plated. That abandonment, rather than a temporary shutdown
of the North Dighton plant, was intended appears also from
Robert Milliken's announcement to the press made immediately
after the adjournment of the board of directors' meeting . Milli-
ken's announcement appeared in The Fall River Herald News
for September 19. Called as a witness for the General Counsel,
News Reporter Herman Mello testified that he wrote the article,
and that the statements therein are a fair and accurate repre-
sentation of what Robert Milliken told him on that occasion; that
he took notes of the interview and that the statements in quota-
tion marks are "the exact words that Milliken used." The
article attributes the following statements to Robert Milliken:
(1) that the North Dighton plant "will close permanently within
30 days"; (2) that the management was "fed up with unabated
threats and economic and financial pressure exerted by the
Union" and "just can't take it any longer"; (3) that "the door
is closed now and forever between the Union and the company";
(4) that the study of a southern site was an actuality; and (5) that
the "company is still looking toward the south as a possibility."
Another account of the interview with Robert Milliken sub-
stantially in agreement with the article written by Mello ap-
peared in the Taunton Daily Gazette of September 19. Robert
Milliken denied some of the statements attributed to him in the
newspaper accounts. He, however, admitted that he stated to the
reporters that the plant would close down as soon as the goods
were run off, and also that he might have said that it would take
about a month to run off the goods; that he was "looking to the
South," that in connection with something else he might have
stated that the management was fed up with unabated threats
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and economic and financial pressure exerted by the Union and
just cannot take it any longer. In view of the fact that Robert
Milliken admitted making some of the statements attributed to
him, the fact that the newspaper accounts reflected substan-
tially the policy decision made by the board of directors earlier
in the day, the fact that the accounts in both papers were in
substantial agreement, and that the account in the Fall River
Herald News was substantiated by the testimony of News
Reporter Mello who wrote the account, it may be reasonably
inferred and we find that the news article in that paper contains
a fair and accurate record of the statements made by Robert
Milliken on that occasion.
Also, immediately following the September 19 resolution of
the board of directors, the management took steps to implement
that resolution in a manner indicating that a permanent cessa-
tion of the operations was intended.
Thus, pursuant to the resolution, after September 20 or 21
only the greige goods that were in production before September
19, were processed to completion. The unfinished greige goods
stored in the Company's warehouses were either returned to the
customers or sent to other finishing plants at the customers'
instructions. At the time the Company had an amount of greige
goods in storage sufficient to keep the plant busy for a sub-
stantial period of time. On September 21 or 22, at Robert
Milliken's direction, a number of unfilled orders for supplies,
including orders for plumbing supplies, stainless steel tubing,
hardware, thread, twine, shrinking blankets, and other "normal
operating production" supplies were canceled. Also, simul-
taneously with the curtailment of operations at North Dighton,
Robert Milliken took steps to open anew plant at Butner, North
Carolina. Thus, on September 22 or 23 he informed Daylor of
his intention to obtain a lease on a plant site at Butner, North
Carolina. On September 28 he obtained an option for the lease of
the Butner site to himself or his nominee. On October 16, at his
instructions a firm of North Carolina attorneys incorporated in
the State of North Carolina a corporation, under the name of the
Creedmoor Company, Inc. The name of this corporation was
changed to Mount Hope Finishing Company, Inc., in December
1951. Before Creedmoor Co., Inc., was organizedandthe lease
signed, Mount Hope (Massachusetts) began to ship to North
Carolina machinery and equipment for installation at the
Butner site. After the North Dighton plant was closed on
October 20, some of the office supplies on hand were sold back
to the original suppliers at a loss andthe remainder were sent
to the Creedmoor Company at Robert Milliken' s instructions.
On or about November 12, Mount Hope (Massachusetts) entered
into an agency agreement with the Crescent Corporation making
it the Company's exclusive agent for the sale of all machinery,
equipment and inventory located at the North Dighton plant with
the exception of the machinery, equipment, and supplies re-
moved, or intended for removal, for use by Creedmoor. Pur-
suant to this agreement the Crescent Corporation advertised
MOUNT HOPE FINISHING COMPANY 489
for sale the machinery, equipment, and inventory of the North
Dighton, plant. Also, on November 29 it advertised for sale the
North Dighton plant's real estate describing it as the "largest
most modern finishing plant under one roof," with its own
powerhouse, "tremendous" warehouses, unlimited water sup-
plies, and extensive land acreage. At the time of the hearing,
June 18, 1952, the Crescent Corporation had sold about 40
percent of all the machinery and equipment of the North Dighton
plant. In addition, 20 percent of the machinery and equipment
had been shipped by Mount Hope (Massachusetts) to the Butner
(North Carolina) site. There still remained undisposed of about
40 percent of the machinery and the realestate. The real estate,
however, had been leased to another company, Dighton Indus-
tries. Under the terms of this lease Mount Hope (Massachu-
setts) retained control over some parts of the plant until
September 18, 1952, for the purpose of storing the remaining
40 percent of the mill machinery and equipment. Under an oral
understanding with Dighton Industries, Mount Hope (Massa-
chusetts) also reserved the right, if exercised before September
18, 1952, to cancel the lease with respect to that part of the
plant in which the undisposed of machinery was stored. As of
the time of the hearing in June 1952 no such cancellation had
been made.
Under the foregoing circumstances we conclude that the North
Dighton plant was closed permanently rather than temporarily
as contended by the Respondents.
The reason for the shutdown of the North Dighton plant as
well as the intended duration of the shutdown is in issue. The
Respondents deny that they discontinued operations at North
Dighton to avoid collective bargaining with the Union and at-
tribute the closing of the plant to the alleged further deteriora-
tion of the Company's business after the July 31 layoff and the
strike. Describing the situation which allegedly led to the
September 19 decision to cease local operations in North
Dighton the Respondents' brief says: " . . . On September
19 . . . [Mount Hope (Massachusetts)] was faced with the very
practical problem of extremely unfavorable business conditions
which showed no prospect of improvement; of servicing an
industry which was continuing its migration southward; of a
union which was continuing its strike and whose actions of
violence prevented it from delivering to its customers their
goods, and from receiving new orders from prospective
customers." The Respondents failed to adduce any evidence
with respect to business conditions after July 31, 1951, except
the testimony of Daylor that the business of the Company
showed no improvement after July 31. The Respondents also
offered in evidence a bulletin entitled "Massachusetts Em-
ployment Trends" issued by the Massachusetts Division of
Employment Security, to show the unfavorable employment
trends in the textile industry for the month of August 1951.
On the objection of the General Counsel, the bulletin was not
admitted in evidence and was placed in the rejected exhibits
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
file. As we believe the evidence is of some relevance to the
issues before us, the Trial Examiner's ruling is hereby
reversed and the bulletin is admitted in evidence. However,
neither Daylor's testimony that Mount Hope (Massachusetts)
business showed no improvement nor the bulletin establish
that Mount Hope (Massachusetts) business had deteriorated
after July 31 to such an extent that the 30-percent reduction in
the payroll effected on July 31 was no longer adequate to meet
the situation and required that the plant in North Dighton be
closed. Likewise without support in the record is the Respond-
ents' contention that the strike and alleged acts of violence on
the part of the strikers had so interfered with the Company's
operations as to cause the shutdown. Moreover, the abandonment
of the operations at North Dighton, Massachusetts, and conse-
quent lockout of the employees merely because the strike might
have aggravated the Respondents' business difficulties would
not be a defense (particularly in a situation where the strike
itself was caused by unfair labor practices of the employer).5
Not only did the Respondents fail to offer a satisfactory
explanation supported by evidence for the shutdown of the plant
at Dighton, a matter peculiarly within their knowledge, but also
their other conduct and the sequence of events plainly indicate
that the shutdown was motivated by their desire to avoid dealing
with the Union. The September 19 decision to shut down the
plant was made 2 days after the Union's victory at the polls and
a day after the unsuccessful attempt to settle the strike. Any
lingering hope that the employees might repudiate the Union as
their collective-bargaining representative or that the Union
might agree to a settlement of the strike without insisting upon
an immediate reinstatement of all laid-off employees and the
strikers, had disappeared. If any doubts with respect to the
Company's motivation existed, they were dispelled by Robert
Milliken himself. In his announcement to the press after the
adjournment of the meeting of the board of directors, Milliken
stated that the Dighton plant "will close permanently within 30
days"; that the management was "fed up with unabated threats
and economic and financial pressure exerted by the Union" and
just "can't take it any longer"; that "the door is closed now
and forever between the Union and the company." On a still
earlier occasion the Respondents demonstrated the same
determination not to deal with the Union when on July 31 they
accelerated the layoff of some 65 employees to avoid bargaining
with the Union as to them. Again, on September 18, the day
after the election, Robert Milliken stated to Foreman Sullivan
5 M. M. Joffee Company, 74NLRB 1568 where the Employer attempted to justify the shutdown
of the plant on the ground that the strike called by the Union was to force recognition and rein-
statement of employees discharged for cause, and therefore was a strike for an unlawful
objective. The Board rejected this contention stating that these activities were activities
protected by the Act and did not, therefore, afford a legitimate basis for the employer's
retaliation. See also Rome Products Company, 77 NLRB 1217.
MOUNT HOPE FINISHING COMPANY 491
that "as far as he was concerned [the Union's victory at the
polls] was the end of the operations of Mount Hope Finishing
Company in Dighton."
On the basis of the foregoing and the entire record we find
that the motivating factor behind the Respondent's decision of
September 19 to shut down the plant at North Dighton was not
economic, as the Respondents claim, but instead was the desire
of the Respondents to rid themselves of the Union and thereby
avoid their obligation under the Act to bargain collectively with
the Union as the representative of their employees.'
Formation of Mount Hope (North Carolina): The Respondents
contend that: (a) Mount Hope (North Carolina) is not the alter
ego-of Mount Hope (Massachusetts); it is a distinct corporate
et ty owned by Robert Milliken and that it is en
M
aged in
finishing synthetic fibres only, whereas Mount Hope assa-
chusetts) engaged primarily in finishing cotton fibres and only
incidentally in finishing synthetic fibres; and (b) in any event,
there is no showing that Mount Hope (North Carolina) was
formed and the Butner plant established for the purpose of
evading the Respondent's obligation to bargain with the Union.
With respect to the interrelationship between the 2 companies
the record shows the following: Robert Milliken owns about
60 percent of the entire capital stock of Mount Hope (Massa-
chusetts). According to his own testimony he also is the sole
beneficial owner of Mount Hope (North Carolina), whose entire
capitalization consists of 5 shares of stock, the par value of
which is $10 per share. Robert Milliken is also assistant
treasurer of Mount Hope (Massachusetts) and treasurer of
Mount Hope (North Carolina). Frank L. Daylor is v i c e
president of both companies. He also owns about 37 percent of
the Mount Hope (Massachusetts) stock. Two of the five shares
of the Mount Hope (North Carolina) stock were issued to
Daylor, but were endorsed by him in blank and turned over to
the Company's attorneys. Daylor disclaimed any interest in
these shares. J. K. Milliken is president of both corporations.
Prior to October 26, 1951, he was also a principal stockholder
in Mount Hope (Massachusetts). The control over all major
policies and labor relations of both Companies is exercised by
these 3 individuals.
Mount Hope (North Carolina) has been operating its Butner
plant with equipment, supplies and machinery of Mount Hope
(Massachusetts) and "for the most part" on Mount Hope
(Massachusetts) money. The value of the machinery, equip-
ment, and supplies sent to Mount Hope (North Carolina) is in
excess of $750,000. These items are carried on an "open ac-
count." They have not as yet actually been billed to Mount
Hope (North Carolina). Nothing has been paid to Mount Hope
(Massachusetts) by Mount Hope (North Carolina). No security
has been put up by Mount Hope (North Carolina) for this in-
6Cf. Rome Products Company, supra ; Sommerset Classics, Inc., 90 NLRB 1676, enfd. 193
F. 2d 613 (C. A. 2).
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
debtedness. Mount Hope (North Carolina) is also using valuable
trade-marks and good will of Mount Hope (Massachusetts), for
which it agreed to pay Mount Hope (Massachusetts) a substan-
tial sum of money estimated in six figures. The value of this
good will and trade-marks is also being carried on an "open
account." Mount Hope (North Carolina) does finishing for
former customers of Mount Hope (Massachusetts). Mount Hope
(North Carolina) has an agreement with Mount Hope of New
York, a subsidiary wholly owned by Mount Hope (Massa-
chusetts), pursuant to which the latter acts as a sales organi-
zation for Mount Hope (North Carolina).
Upon the entire record we find, as did the Trial Examiner,
that Mount Hope (North Carolina), the new company is but the
alter ego of Mount Hope, (Massachusetts), identical and
inseparable from the old company for the purposes of this Act
in safeguarding the statutory rights of the employees; and that
both the old and the new companies are jointly responsible for
the violations of the Act committed by either.'
Removal of operations: The Respondents' contention that the
removal of the operations from Massachusetts to North Caro-
lina was motivated by economic reasons alone and not to avoid
bargaining with the Union is without merit. The record is clear
that although the advisability and possibility of opening an
additional plant somewhere in the south was considered by
Mount Hope (Massachusetts) before the advent of the Union,
however, at no time prior thereto hadthe management contem-
plated closing the plant in North Dighton. We are persuaded
that the decision to abandon operations in North Dighton,
Massachusetts, was reached after the Union won the September
17 election. J. K. Milliken, Jr., and Carr testified that the
management thought of opening a plant in the south for the
purposes of finishing synthetic fibres, which could be done
cheaper there than in North Dighton; that the Company believed
7Rome Products Company, 77 NLRB 1217, where the evidence disclosed common stock
ownership; common control of the policies and production; the old company had sold to the new
company its machinery, good will, and other assets under an oral arrangement, and before
the new corporation was formed, and the new company had assumed the liabilities of the for-
mer; N L. R B. v. E. C. Brown Co., 184 F. 2d 829 (C.A. 2), enfg. 81 NLRB 140, where the
new company was formed shortly after the shutdown of the old plant, the new company was
carrying on the same business with the same supervisors, the old company assured to itself
the profits of the new, the old company stood behind the credit of the new corporation, sold
goods under the same name and bought the whole output of the new company; National Gar-
ment Company, 69 NLRB 1208, enfd. 166 F 2d 233 (C. A. 8), cert. den 334 U. S. 845, where
the record disclosed that the president and a majority stockholder of one company controlled
the production and labor policies of both companies and where the production of both companies
was integrated. N. L. R B. v. Hopwood Retinning Co., 98 F. 2d 97 (C. A. 2) where the new
company was organized by the person in control of the old, machinery was sold to the new
company on an open account, all capital stock of the new company was held for the old com-
pany, the officers of the old company supervised the installation of the new plant, the mate-
rials used in the construction of the new plant were paid for by the old company although
debited to the new, and the old company functioned as the exclusive sales agent for the new;
Liebman Breweries, Inc , 101 NLRB 117, where one company owned a substantial portion of
the capital stock of the other, both companies had interlocking directors, one company bought
materials for both, and controlled production of the second.
MOUNT HOPE FINISHING COMPANY 493
that it " should start in a small way and determine for [ it-
self] over the long future whether additional work would be
done or whether it should be left in [Dighton ] ." In these dis-
cussions , the term "pilot plant" was used in connection with
a southern plant . According to witness Carr , this meant "an
operation that started off in an experimental stage to develop
into something , and it might grow and it might not." Both
Milliken and Carr testified that as of July 28, 1951 , the date
of the Union ' s request for recognition and bargaining , the Com-
pany had made no decision either with respect to choosing a
site in the South , or, indeed , with respect to the basic question
of opening a plant in the south . Daylor also testified that
Robert Milliken , who had considered the possibility of moving
to the South on his own, likewise had made no final decision on
this matter , as of August 13, the date of the strike . However, in
the light of the events occurring thereafter it is a reasonable
inference and we find that sometime between August 13, the
date of the strike and September 28, when Robert Milliken
obtained an option to lease the Butner , North Carolina , site, the
Respondents decided to remove their operations from Massa-
chusetts to North Carolina . The first intimation of this deci-
sion appears in Robert Milliken ' s announcement to the press
on September 19. After stating that the management was "fed
up" with the Union ' s threats and economic pressure and that
"the door is closed" to bargaining , Milliken revealed that a
study of a southern site was an "actuality ," that " the company
is still looking toward the south as apossibility ." Immediately
thereafter , on September 21 or 22, Robert Milliken informed
Daylor of his intention to locate in the South. On September
28, Milliken obtained an option for the lease of a plant site at
Butner , North Carolina , to himself or his nominee. On Septem-
ber 29, Robert Milliken and Daylor secured an option from the
J. K. Milliken Foundation and on October 4, from J. K.
Milliken , Jr., for the purchase of their stock in Mount Hope
(Massachusetts ). On October 16, Robert Milliken ' s attorneys
in North Carolina formed a corporation under the name of
Creedmore Company, Inc., which shortly thereafter, as
Milliken ' s nominee , signed a lease for the Butner site. Early
in October and before the Creedmore Company was formed
and before the North Dighton plant was shut down the Respond-
ents began to move machinery and equipment from the North
Dighton plant to Butner , North Carolina . Thus, the record
clearly indicates that the closing of the North Dighton plant and
the opening of a plant in North Carolina were conceived and
executed as a part of the same plan . In light of the circum-
stances surrounding the move to Butner , we are convinced
and find that the motivating factor behind the move was the
Respondents ' desire to evade their obligation to bargain with
the Union as the bargaining representative of their employees.
Upon the entire record we find that the Respondents by
ceasing their operations at the plant in North Dighton , Massa-
chusetts , organizing Mount Hope (North Carolina ) and removing
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their operations to the Butner, North Carolina, plant, for the
purpose of avoiding their obligations under the Act, interfered
with, restrained , and coerced their employees in the exercise
of the rights guaranteed in Section 7 of the Act, in violation of
Section 8 (a) (1) of the Act.8
4. We agree with the Trial Examiner that the shutdown of
the plant in North Dighton, Massachusetts, pursuant to the
September 19 decision to cease operations and the subsequent
partial removal of operations to Butner, North Carolina, con-
stituted a discharge and lockout of all of the employees at
that plant, including those who joined the strike of August 13,
1951, in violation of Section 8 (a) (3) and (1) of the Act.' The
Respondents contend that : (a) They had no intention on Septem-
ber 19 or thereafter to abandon operations in North Dighton,
Massachusetts ; and (b ) no employees were discharged , andthis
is evidenced by the fact that the October 5 strike-settlement
agreement with the Union provided for the recall rather than
the rehire of the employees . We have, heretofore , found con-
tention (a) to be without merit. As to contention (b), the fact
that the Company did not issue notices of dismissal to its em-
ployees or tell them at the time of their separation that they
were being discharged , is not conclusive as to the nature of the
separation and does not preclude the Board from ascertaining
the true cause and the nature of the separation . Since we have
found that the Company abandoned its local operations in
Dighton, Massachusetts , to avoid bargaining with the Union,
the fact that the management did not tell the employees that
they were being permanently severed does not change the
situation or cure the unlawful nature of the separation. More-
over , as found below, the Company's representatives failed to
disclose to the Union during the strike-settlement negotiations
the Company ' s intention to abandon its local operations in
North Dighton. The fact that the Union may have believed when
it entered into the strike - settlement agreement that the em-
ployees were to be laid off rather than discharged or locked
out has no material bearing on this issue.
5. We find, as did the Trial Examiner, that all production
and maintenance employees at the North Dighton, Massachu-
setts, plant, including powerhouse employees and working
foremen , but excluding office and clerical employees , guards,
and supervisors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining. We also find
8Gerity Whitaker Company, et al., 33 NLRB 393, enfd. per curiam, 137 F. 2d 198 (C. A. 6),
cert. den. 318 U. S. 801; May Department Stores Company v. N. L. R. B., 326 U. S. 376.
9Rome Products Co., supra , where the Board found that the removal of the plant to a new
location "was in effect an i al lockout of the employees ," and a discharge in violation of
Section 8 (a) (3) of the Act; E. C. Brown Co ., supra , where the employer announced that the
plant would suspend operations for an indefinite period and the same afternoon laid off all
production and maintenance employees , and where the Board adopted the Trial Examiner's
finding , that the company on that day locked out its employees to evade its legal obligations;
Schieber Millinery Co., 26 NLRB 937 , 960, 965 ; Sommerset Classics , Inc., 90 NLRB 1676,
enfd. 187 F. 2d 613 (C. A. 2).
MOUNT HOPE FINISHING COMPANY 495
that all production and maintenance employees at the Butner,
North Carolina , plant , with the aforesaid inclusions and exclu-
sions constitute an appropriate bargaining unit. We further find
that on July 28, 1951, the date of the receipt of the Union's
request for recognition and bargaining , and at all times there-
after the Union represented a majority of the employees in the
aforesaid unit at the North Dighton plant ; and that since July
28, 1951, the Respondents have failed and refused to bargain
with the Union in violation of Section 8 (a) (5) of the Act. We
base our finding of refusal to bargain upon the following con-
duct of the Respondents:
(a) As found above , on July 31 Mount Hope (Massachusetts)
accelerated the layoff of some 65 of its employees in order to
avoid bargaining with the Union with respect to their layoff.
The acceleration of the layoff of these employees for that rea-
son was not only an act of discrimination against them because
of their union and concerted activities in violation of Section 8
(a) (3) and (1) of the Act, but also constituted a violation of
Section 8 (a) (5) of the Act as a rejection of the collective-
bargaining principle and conduct in derogation of the Union's
status as the majority representative of its employees. As a
result of the Respondents ' action in this regard , the Union was
confronted with a fait accompli with respect to a matter about
which the Respondents were legally obligated to bargain with
the Union before taking action." It is settled law that an em-
ployer is obligated to notify the collective - bargaining repre sen-
tative of any contemplated changes in the wages or the terms
or conditions of employment of his employees before putting
the changes into effect , in order to afford the bargaining rep-
resentative an opportunity to discuss with the employer such
questions, e.g., whether or not the changes can be avoided, the
manner in which the changes should be effected and the prin-
ciples to govern a return, if any, to the former conditions of
employment. It follows that when a duly designated represen-
tative exists, unilateral action by the employer in regard to
such changes is in derogation of the bargaining agent's status
as such , and violates an "essential principle of collective
bargaining." 11
(b) On August 3, 1951, Mount Hope (Massachusetts ), answer-
ing the Union's letter of July 27, refusedto recognize the Union
as the collective- bargaining representative of its employees
until the Union was certified by the Board . No reasons were
advanced by the Company for this refusal and indeed the record
reveals no basis therefor consistent with good faith on the
Respondents ' part . No claim of good-faith doubt of the Union's
majority could be here asserted in view of the fact that Re-
spondents immediately embarked on a course of unfair labor
practices to avoid the Union. At no time did the Respondents
10 The Stilley Plywood Company , Inc., 94 NLRB 932, 969 , enfd. October 1952 , 199 F. 2d 319
(C. A. 4), and cases there cited; United States Gypsum Company , 94 NLRB 112.
U The Stilley Plywood Company , Inc., supra.
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
request or suggest that the Union establish its majority status
by production of authorization cards or other informal means.
While the Respondents agreed and did participate in the strike-
settlement negotiations arranged by the State Department of
Arbitration and Conciliation, the Respondents refused to rec-
ognize the Union as such representative until after the election
held on September 17, which the Union won.
(c) While Mount Hope (Massachusetts) representatives Daylor
and Blake did refuse during the strike -settlement negotiations
to give the Union any assurance that the company would not
cease operations in North Dighton, they not only failed to dis-
close to the union officials that it was then the intention of
Mount Hope (Massachusetts) to abandon its local operations in
North Dighton but affirmatively denied that such was the case.
Thus, Blake testified that at the September 20 conference
Union Representative Bishop, referring to the newspaper ac-
count that "the company was going to close permanently ... ,
asked [him] if that was so, and [that he] told [Bishop] that that
was not so and that the newspaper account was not correct. . ."
State Conciliator Grodsky testified that at the same meeting
Blake announced "that the company had met and voted to
suspend all operations in Dighton," but that he, Blake, wanted
to correct the "newspaper statement. . . that the company
would not negotiate by saying that the company stands ready to
negotiate with the Union. . ."; that also at the same meeting,
Bishop posed to Daylor the question of whether there would be
"any sense in continuing discussions any further if the plant was
going to close," and whether "if the parties could reach an
agreement on a plan would the company continue operations";
and that Daylor replied "that if a plan can-be worked out, the
plant will operate in the future." Implicit also in the strike-
settlement negotiations was the representation that the plant in
North Dighton would eventually resume operations and that the
strikers and laid-off employees would be recalled. Thus, it
is clear that full disclosure of all material facts in connection
with the September 19 decision of the Company's board of
directors had not been made to the Union, and that the infor-
mation disclosed was at best only a half truth. We find, as did
the Trial Examiner, that by concealing their true intentions with
respect to the closing of the North Dighton plant, the Respond-
ents did not bargain with the Union in good faith.'?
(d) Although the Union had made known to the Respondents
during the strike settlement negotiations its concern about the
closing of the North Dighton plant and the possibility of moving
it south, no adequate notice was given to the Union before the
12Schieber Millinery Co., supra where the Board said that by such conduct the employer
sought to " lull the union into a false sense of security by bargaining until his plans to move
the plant was perfected "; M. M. Joffee Company , supra, where concealment of the identity of
the person to whom the business had been sold was found to be "significant" in ascertaining
the motivation for the move . Rome Products Co., supra , where the employer 's refusal to give
the name of the new company or the place of a new operation was found to be concealment.
MOUNT HOPE FINISHING COMPANY 497
shutdown of the plant on October 20, 1951, that a permanent
rather than a temporary shutdown was intended or that re-
moval of operations to Butner, North Carolina, had already
begun. As the Union had a right to be notified of any change in
the terms and conditions of employment of the employees it
represented (even if the closing of the plant and the removal
of the operations to Butner, North Carolina, had not been a
part of the unlawful scheme to defeat the right of the North
Dighton employees to bargain collectively) the Respondents'
failure to give such notice and their unilateral change in the
tenure of employment of their employees for the above-stated
reasons was not only a rejection of the very principle of col-
lective bargaining in violation of Section 8 (a) (1) of the Act,
but also a refusal and failure to bargain with the Union with
respect to such matters as the separation of employees,
transfer of the North Dighton employees to the Butner plant,
etc., in violation of Section 8 (a) (5) of the Act."
Upon the entire record we find, as did the Trial Examiner,
that by engaging in the foregoing conduct culminating in the
lockout and the removal of operations to Butner, North Caro-
lina after the Union's request for recognition and bargaining,
the Respondents on July 28, and at all times since, have re-
fused and failed to bargain with the Union as the bargaining
representative of the North Dighton employees in violation of
Section 8 (a) (5) of the Act.
6. The Respondents contend that the complaint against
Mount Hope (North Carolina) and the individuals named as
respondents in the complaint should be dismissed as none of
them may be made to account for the unfair labor practices,
if any, engaged in by Mount Hope (Massachusetts).
The Respondents contend that Mount Hope (North Carolina)
is a separate and distinct corporate entity, which did not come
into existence until October 16, 1951, by which time Respondent
Mount Hope (Massachusetts) had already engaged in the
alleged unfair labor practices. However, it has been found
that Mount Hope (North Carolina) is but an alter e o or in-
strumentality of Mount Hope (Massachusetts) created for the
purpose of evading its obligation to bargain collectively with
the Union. The two corporations, therefore, are for the reme-
dial purposes of the Act a single "employer" within the
meaning of Section 2 (2) of the Act, as amended.`
The Respondents also contend that the complaint should be
dismissed with respect to J. K. Milliken, FrankL. Daylor, and
Robert D. Milliken as there is no evidence which relates them
to the unfair labor practices found above or that their conduct
"Rome Products Company, supr M. M. Joffee Company, 74 NLRB 1568; Gerity Whitaker
Company, 33 NLRB 393 enfd. per curiam 137 F. 2d 198 (C. A. 6), cert. den. 318 U. S. 801;
Schieber Millinery Company, 26 NLRB 937; Sommerset Classics, Inc., 90 NLRB 1676, enfd.
187 F. 2d 613 (C. A. 2);
`Rome Products Company, supra. National Garment Company, 69 NLRB 1208.
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affords any basis for the imposition of liability recommended by
the Trial Examiner. We find no merit in this contention.
J. K. Milliken and Robert D. Milliken: Section 2 (2) of the
Act provides that any person acting as "an agent of the em-
ployer, directly or indirectly" is an "employer" within the
meaning of the Act. In the instant case both Millikens were
officers of Mount Hope (Massachusetts) and Mount Hope (North
Carolina) at all times. Both of these individuals were respon-
sible for the major policies and labor relations of the two
companies. J. K. Milliken was president and stockholder of
Mount Hope (Massachusetts) and, when Mount Hope (North
Carolina) was formed, became president of that company.
Robert D. Milliken was assistant treasurer and stockholder of
Mount Hope (Massachusetts) and became treasurer and the
sole owner of the new company when it was formed. As officers,
and directors of these two 'companies, the two Millikens were
acting as their agents at the time of the unfair labor practices
set forth above. They were therefore "employers" for the
remedial purposes of the Act."
Frank Daylor did not become a stockholder and officer of
Mount Hope (Massachusetts) until October 26, 1951, at which
time he became its vice president. Daylor, however, took an
active part in the affairs of the Company long before that time.
Daylor was consulted about the reduction of the working force
before the July 31 layoff and had approved the same. He parti-
cipated in the strike-settlement negotiations as one of the two
representatives of the Respondent Company and failed to inform
the Union of the Company's intention to abandon operations at
the Dighton plant. Daylor was present at the board of directors'
special meeting on September 19, 1951, at which he was "au-
thorized and directed. . . . to negotiate and secure offers for
the possible sale of the tangible assets of the company."
Thereafter, in carrying out this directive, Daylor took steps
which resulted in the sale to outsiders of 40 percent of Mount
Hope (Massachusetts') machinery, equipment, and inventory
and the transfer of an additional 20 percent thereof to Mount
Hope (North Carolina). Finally, when Mount Hope (North
Carolina) was organized, Daylor became its first vice president.
In engaging in the foregoing activities in behalf of Mount Hope
(Massachusetts) at its specific request and authorization, and
later in acting as an officer of both companies, Daylor was
acting as their agent and therefore was an "employer" within
the meaning of the Act.
is Cookeville Shirt Co., 79 NLRB 667 , where the Board found that the vice president of the
company, who played prominent part in unfair labor practices , was "acting in the interest and
as an agent" of the company; in that case the Board directed a cease and desist order against
both the company and its vice president . Edward Taubman , et al., 77 NLRB 846, where a person
serving as president and general manager of the corporation was held an "employer" within
the meaning of Section 2 (2) of the Act; Southland Manufacturing Company , 94 NLRB 813, 829;
Republican Publishing Co., 73 NLRB 1085 , enfd . 174 F. 2d 474 (C. A. 1); Schieber Millinery
Co., 26 NLRB 937, 963.
MOUNT HOPE FINISHING COMPANY 499
It is also clear from the above that the individual Respondents
have dominated both corporations and have been responsible for
their labor relations. They are thus the real parties in interest
who must be held responsible under any appropriate order
which the Board might enter. It would defeat the purposes of
the Act to permit these individuals to take refuge behind the
corporate entities of the two corporations. Under all the cir-
cumstances here presented, and in order to effectuate the
policies of the Act, we find that all the Respondents, including
Mount Hope (North Carolina) and the individual Respondents,
are so interrelated and involved in the conduct engaged in as
to be jointly and severally liable for the unfair labor practices
found.
The Remedy
Having found that the Respondents have engaged in certain
unfair labor practices, we shall order that they cease and
desist therefrom and take certain affirmative action which the
Board finds necessary to effectuate the policies of the Act and
restore insofar as possible the status quo existing prior to the
commission of the unfair labor practices.
We shall order the Respondents to offer the employees at
the North Dighton, Massachusetts, plant who were discharged
or locked out as a result of the September 19, 1951, resolution
of the board of d3+ectors of Mount Hope (Massachusetts), in-
cluding those employees who joined the strike of August 13,
1951, reinstatement to their former or substantially equivalent
positions, ' at the North Dighton plant, if the Respondents re-
open it, or at the Butner, North Carolina, plant, without preju-
dice totheir seniority and other rights and privileges dismissing,
if necessary to provide employment for those offered and ac-
cepting employment, all employees at the Butner plant. If there
is not sufficient employment then immediately available for
these persons, all available positions shall be distributed
among the employees entitled to reinstatement in accordance
with the Respondents' usual method of operation under cur-
tailed production, without discrimination against any employee
because of union affiliation or activities, following the system
of seniority, if any, customarily applied to the conduct of the
Respondents' business. Any employees remaining after such
distribution for whom no work is immediately available, shall
be placed upon a preferential list prepared in accordance with
the above principles, and shall thereafter, in accordance with
such list, be offered employment in their former or in hub-
stantially equivalent positions as such employment becomes
available and before other persons are hired for such work.17
16 See Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65
NLRB 827.
17New Madrid Manufacturing Company, a Corporation, and Harold Jones , an Individual,
d/b/a Jones Manufacturing Company, 104 NLRB 117.
322615 0 - 54 - 33
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We shall also order , in accordance withthe Trial Examiner's
recommendation , the Respondents to pay employees the ex-
penses entailed in moving their families and household effects,
in the event the Respondents do not reopen the North Dighton
plant.
We shall further order the Respondents to make whole the
employees referred to above for any loss of pay they may have
suffered by reason of the Respondents ' discrimination in the
following manner : Pay to said employees a sum of money equal
to the amount each would normally have earned as wages from
October 20, 1951, on which date the North Dighton plant was
shut down and the employees locked out pursuant to the Board
of Director ' s resolution of September 19, 1951, to the date of
an offer of reinstatement less his or her net earnings during
such a period . ' In the case of those employees for whom
there is insufficient work available , the terminal date of the
back-pay period is to be the date of the employees' placement
on a preferential list as hereinabove set forth . The employees
who went on strike on August 13, 1951, shall not be entitled to
any back pay for the period from August 13, the beginning of
the strike , to the shutdown of the plant on October 20, during
which period they either voluntarily remained on strike or were
out of work pursuant to the October 5, 1951, strike - settlement
agreement.
We have adopted the Trial Examiner ' s findings that the
Respondents violated Section 8 (a) (5), 8 (a ) ( 3), and 8 (a) (1) of
the Act by laying off certain employees at the North Dighton
plant on July 31, 1951. However , as indicated above, we have
found that the Respondents unlawfully discriminated against
these employees only insofar as they accelerated the date of
layoff of 65 of the 185 employees laid off. Accordingly, we do
not adopt the Trial Examiner ' s recommendation with respect
to the reinstatement of these employees . As to the back pay for
the 65 employees found to have been discriminated against, we
shall order the Respondents to make whole these employees
for any loss of pay they may have suffered by reason of the
Respondent' s discrimination against them by payment to each of
them of a sum of money equal to the amount that he or she
would normally have earned as wages during the period from
the date of the layoff to the date when he or she normally would
have been discharged or laid off absent the discrimination,
less his or her net earnings during such period.'
It has been found that the Respondents have refused to bargain
with the Union as the exclusive bargaining representative of
their employees at their North Dighton, Massachusetts, plant
in violation of section 8 (a) (5) of the Act. We shall therefore
order the Respondents , in the event that they resume operations
at the plant, to bargain with the Union as the bargaining repre-
1s F. W. Woolworth Company, 90 NLRB 289 ; Crossett Lumber Company, 8 NLRB 440.
19 William A. Mosow Beer Distributors , 92 NLRB 1727.
MOUNT HOPE FINISHING COMPANY 501
sentative of the employees at that plant with respect to wages,
hours, and other conditions of employment.
It has been found that the Respondents closed their plant at
North Dighton, Massachusetts, discharged or locked out the
employees at that plant, and removed their operations to their
plant at Butner, North Carolina, for the purpose of evading
their statutory obligation to bargain with the Union as the ex-
clusive representative of their employees. Normally, in a
situation of this kind, we would order the employers to bargain
with the union as the bargaining representative of their em-
ployees at the new plant in the unit found appropriate, without
proof of the union' s representative status at the new plant.Y° In
the instant case , however, because of the great distance
separating the two plants, the unlikelihood that any considerable
number of the North Dighton employees will accept employ-
ment at the Butner plant if and when the Respondents comply
with our order of reinstatement, and the fact that a different
labor organization now claims majority representation at that
plant , 21 we shall, in order to accommodate the remedy to the
realities of the situation, condition our bargaining order upon
proof that, upon compliance by the Respondents with our order
of reinstatement, the total number of the North Dighton em-
ployees who have accepted employment at the Butner plant and
the employees at the Butner plant who in the meantime have
joined the Union shall constitute a majority of the total em-
ployees in the appropriate unit at that plant.
In view of the nature of the unfair labor practices committed,
the commission by the Respondents of similar and of other
unfair labor practices may be anticipated. The remedy should
be coextensive with the threat. It will therefore be ordered
that the Respondent cease and desist from infringing in any
manner upon the rights guaranteed in Section 7 of the Act.
ORDER
U on the entire record in the case, and pursuant to Section
10 (pc) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Re-
spondents, Mount Hope Finishing Company, North Dighton,
Massachusetts, Mount Hope Finishing Company, Inc., Butner,
2ORome Products Company, 77 NLRB 1217; M. M. Joffee Company, 74 NLRB 1568; New
Madrid Manufacturing Company, 104 NLRB 117.
21 The plant at Butner , North Carolina, commenced operations in January 1952. On or about
January 23, 1953, United Textile Workers of America, AFL filed a petition (Case No.
11-RC-497) seeking to represent a unit of all production and maintenance employees at that
plant. The petition was dismissed by the Regional Director . The Petitioner appealed to the
Board on February 24, the Board sustained the Regional Director 's dismissal of the petition on
the ground that the complaint in this case was still pending before the Board . Simultaneously
with the appeal UTWA, AFL, also moved that the Board in determining the complaint case,
give "adequate and appropriate considerations of the matter involved in Case No. 11-RC-497"
and refrain from taking any action that "may prejudice the lawful rights of employees" at
Mount Hope (North Carolina), Butner plant.
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
North Carolina , Joseph K . Milliken , Frank L. Daylor and
Robert D. Milliken , their agents , successors , and assigns shall:
1. Cease and desist from:
(a) Discouraging membership in Textile Workers Union of
America , CIO, or in any other labor organization of their em-
ployees, by locking out, discharging , laying off , or refusing to
reinstate any of their employees or by discriminating in any
other manner in regard to their hire and tenure of employment
or any term or condition of their employment , except to the
extent permitted by the proviso to Section 8 (a) (3) of the Act.
(b) Refusing to bargain collectively with Textile Workers
Union of America , CIO, as the exclusive representative of all
production and maintenance employees at the Respondents'
North Dighton , Massachusetts , plant , including powerhouse
employees and working foremen , but excluding office and
clerical employees , professional employees , guards, and all
supervisors as defined in the Act.
(c) Interrogating their employees as to their union affiliation
or activities.
(d) In any other manner interfering with , restraining, or
coercing their employees in the exercise of the rights 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 other concerted activities
for the purpose of collective bargaining or other mutual aid or
protection , as guaranteed in Section 7 of the Act , or to refrain
from any or all of such activities except to the extent that such
right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as au-
thorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Offer all employees who were discharged or locked out
as a result of the September 19, 1951 , resolution of the board of
directors of Mount Hope (Massachusetts ), including those em-
ployees who joined the strike of August 13, 1951 , immediate
and full reinstatement to their former or substantially equiva-
lent positions with the necessary traveling and moving expenses,
in the manner set forth in the section of this Decision and Order,
entitled "The Remedy."
(b) Make whole the employees referred to in the preceding
subsection for any loss of pay they may have suffered by
reason of the Respondents ' discrimination against them in the
manner set forth in the Section herein entitled " The Remedy."
(c) Make whole the 65 employees , who were selected for lay-
off by Respondent Mount Hope (Massachusetts ) after it had re-
ceived the Union ' s request for recognition and bargaining and
who were laid off on July 31, 1951 , along with 120 laid off for
economic reasons , for any loss of pay they may have suffered
by reason of the Respondent ' s discrimination against them, in
MOUNT HOPE FINISHING COMPANY 503
the manner set forth in the section herein entitled "The
Remedy. "
(d) Upon request, bargain collectively with Textile Workers
Union of America, CIO, as the exclusive representative of all
employees in the aforesaid appropriate unit at the North Dighton
plant with respect to rates of pay, wages , hours of employ-
ment, and other conditions of employment, and, if an under-
standing is reached , embody such understanding in a signed
agreement . If the Respondents elect not to reopen the plant at
North Dighton but to continue at Butner , North Carolina, bar-
gain , upon request, with the Union as the exclusive repre-
sentative of their employees in the unit herein found appropriate
at that plant and in the manner set forth above, provided that,
upon compliance with our order of reinstatement , the total
number of the North Dighton employees who have accepted
employment at the Butner plant and the employees at the Butner
plant who in the meantime have joined the Union shall constitute
a majority of the total employees in the appropriate unit at
that plant.
(e) Send to the employees referred to above in subsections
(a) and (c) of paragraph 2 of this Order a letter offering said
employees reinstatement, and also setting forth the Respond-
ents' election as to where they will effect such reinstatement,
and include in such letter a copy of the notice attached hereto
and marked "Appendix."n
(f) Post at the Butner , North Carolina , plant , or the North
Dighton, Massachusetts, plant, if the Respondents elect to re-
open it , copies of the notice attached hereto and marked
"Appendix." Copies of said notice , to be furnished by the
Regional Director for the First Region , shall , after being duly
signed by the Respondents ' representatives , be posted by them
immediately upon receipt thereof andbe maintained by them for
a period of at least sixty (60) consecutive days thereafter in
conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondents to insure that such notices are not
altered, defaced , or covered by any other material.
(g) Preserve and, upon request , make available to the National
Labor Relations Board or its agents, for examination and
copying, all payroll records, social -security payment records,
timecards , personnel records and reports, and all other rec-
ords necessary to analyze the amounts of back pay due under
the terms of this Order.
(h) Notify the Re ional Director for the First Region in
writing, within ten (10) days from the date of this Order what
steps the Respondents have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint , insofar as it
alleges that the Respondents violated the Act by laying off on
22 In the event that this order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and order " the words
"Pursuant to a Decree of the United States Court of Appeals , enforcing an order."
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
July 31, 1951, in addition to the 65 employees who we have
found were discriminately laid off on that date, 120 other em-
ployees, be, and it hereby is, dismissed.
Chairman Farmer and Member Styles took no part in the
consideration of the above Decision and Order.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Re-
lations Board, and in order to effectuate the policies of the
National Labor Relations Act, we hereby notify our employees
that:
WE WILL bargain collectively, upon request with Textile
Workers Union of America, CIO, as the exclusive bargain-
ing representative of our North Dighton employees in the
appropriate unit described below with respect to rates of
pay, wages, hours of employment, and other conditions of
employment, and, if any understanding is reached, embody
such understanding in a signed agreement ; or if we elect
not to reopen the plant at North Dighton but to continue at
Butner.
WE WILL bargain collectively, upon request with said
labor organization as the exclusive bargaining representa-
tive of our employees at the Butner, North Carolina, plant
in the appropriate unit described below and in the manner
set forth above, provided that, upon our compliance with
the order of reinstatement, the total number of the North
Dighton employees who have accepted employment at the
Butner plant and the employees at the Butner plant who
in the meantime have joined Textile Workers Union of
America, CIO, shall constitute a majority of the total em-
ployees in the appropriate unit in the plant.
The appropriate bargaining unit in each plant is:
All production and maintenance employees, including
powerhouse employees and working foremen , but ex-
cluding office and clerical employees , guards , and all
supervisors as defined by the Act.
WE WILL NOT discourage membership of our employees
in the above -named or any labor organization by locking
out, laying off, discharging , or refusing to reinstate any of
them, or by discriminating in any other manner in regard
MOUNT HOPE FINISHING COMPANY 505
to their hire and tenure of employment, or any term or
condition of their employment.
WE WILL OFFER all employees who were discharged or
locked out as a result of the September 19, 1951, resolution
of the board of directors of Mount Hope (Massachusetts),
including those employees who joined the strike of August
13, 1951, immediate and full reinstatement to their former
or substantially equivalent positions without prejudice to
any seniority or other rights and privileges previously
enjoyed. If the North Dighton plant is not reopened, we
will offer to these employees immediate employment in
substantially equivalent positions at the Mount Hope Fin-
ishing Company, Inc., plant in Butner, North Carolina,
without prejudice to their seniority and other rights and
privileges , and with the necessary traveling and moving
expenses.
WE WILL OFFER all employees on our payroll as of
August 6, 1951, immediate and full reinstatement to their
former or substantially equivalent positions at our North
Dighton, Massachusetts, plant, without prejudice to any
seniority or other rights and privileges previously enjoyed,
or we will offer these employees immediate employment
in substantially equivalent positions at our Butner, North
Carolina, plant, without prejudice to their seniority and
other rights and privileges , and with the necessary travel-
ing and moving expenses.
WE WILL make all said employees whole for any loss of
pay suffered as a result of the discrimination against
them.
WE WILL make whole the 65 employees, who were
selected for the layoff by Mount Hope Finishing Company
after it received the Union ' s request for recognition and
bargaining and who were laid off on July 31, 1951, along
with the 120 employees laid off for economic reasons, for
any loss of pay they may have suffered as a result of the
discrimination against them.
WE WILL NOT interrogate our employees in regard to
their membership in or activities on behalf of any labor
organization.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of the
rights 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
other concerted activities for the purpose of collective
bargaining or other mutual aid and protection , as guaran-
teed in Section 7 of the Act, or to refrain from any or all
of such activities except to the extent that such rights
may be affected by an agreement requiring membership in
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a labor organization as a condition of employment, as au-
thorized in Section 8 (a) (3) of the Act.
MOUNT HOPE FINISHING COMPANY, MOUNT
HOPE FINISHING COMPANY, TNC., JOSEPH K.
MILLIKEN, FRANK L. DAYLOR AND ROBERT
D. MILLIKEN,
Employer.
Dated ................ By....................................................
(Representative ) (Title)
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
STATEMENT OF THE CASE
Charges having been duly filed and served, a complaint, amended complaint, and notice of
hearing thereon having been issued and served by the General Counsel of the National Labor
Relations Board, and answers having been filed by the above-named companies and individuals,
herein called the Respondents, a hearing involving allegations of unfair labor practices in
violation of Section 8 (a) (1), (3), and (5) of the National Labor Relations Act, as amended,
61 Stat. 136, herein called the Act, was held in Taunton, Massachusetts, on June 16, 17, 18, 19,
and 20, 1952, before the undersigned Trial Examiner.
In substance the amended complaint, as further amended at the hearing, alleges and the
answers deny that: (1) The respondent individuals and Mount Hope Finishing Company, herein
called Mount Hope (Massachusetts), discriminatorily laid off about 175 named employees on
July 31, 1951, and on September 19, 1951, discharged all of their employees because they
joined or assisted the Union; (2) the same Respondents on or about July 28, 1951, refused and
have since then refused to bargain collectively with the Union as the exclusive representative
of all employees in an appropriate unit; (3) employees of the same Respondents on August 13,
1951, went on a strike caused by unfair labor practices; (4) on or about October 5, 1951, and
thereafter, all Respondents discriminatorily refused to reinstate the strikers although the
Union, as their representative, applied for such reinstatement; (5) the respondent individuals
and Mount Hope (Massachusetts) on or about September 19, 1951, abandoned their Massa-
chusetts operations and caused tobeorganizedtheRespondent Mount Hope Finishing Company,
Inc., herein called Mount Hope (North Carolina), in order to evade responsibility under the
;.t to bargain collectively with the Union; and (6) by said conduct all Respondents have inter-
fered with, restrained, and coerced their employees in the exercise of rights guaranteed by
Section 7 of the Act.
At the hearing all parties were represented by counsel, were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues,
to argue orally upon the record, and to file briefs, proposed findings, and conclusions. All
counsel waived argument and briefs.
Upon the entire record in the case, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF 1liE RESPONDENTS
The Respondents Joseph K. Milliken, Frank L. Daylor and Robert D. Milliken are and at all
times material have been officers and/or agents of the Respondents Mount Hope (Massachu-
setts ) and Mount Hope (North Carolina.)
MOUNT HOPE FINISHING COMPANY 507
Mount Hope (Massachusetts), a Massachusetts corporation, has its principal office and plant
in North Dighton, Massachusetts, where for 50 years and until October 1951, it was engaged
in the dyeing and finishing of textile goods. Until October 1951, it caused large quantities of
dyes and chemicals used by it to be purchased and transported in interstate commerce and
caused substantial quantities of finished textilegoods to be transported from its plant in inter-
state commerce
Mount Hope (North Carolina), a North Carolina corporation formed in October 1951, and
for a time known as "Creedmoor Company," maintains its office and plant in Butner, North
Carolina, where it is engaged in the dyeing and finishing of textile goods. Since October 1951,
it has caused large quantities of dyes, chemicals, and equipment to be purchased and trans-
ported in interstate commerce, and since January 1952, has caused substantial quantities of
finished textile goods to be transported from its plant in interstate commerce.
The Respondent corporations do not contest the Board's jurisdiction. It is found that they
are engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Textile Workers Union of America, CIO, is a labor organization admitting to membership
employees of the Respondents.
III. THE UNFAIR LABOR PRACTICES
A. Material events and major issues
The issues arise from the unsuccessful effort of the Union to obtain a collective-bargaining
agreement with the management of a New England textile finishing concern which for the half
century of its existence had not, until the summer of 1951, dealt with any union as the repre-
sentative of its employees.
Mount Hope (Massachusetts) is a family controlled enterprise. It was founded by J. K, Milli-
ken in 1901. At the time of the hearing he still retained the titles of president and treasurer,
although during the past few years he relinquished active management control to his sons,
Robert D. Milliken and J. K. Milliken, Jr. In the summer of 1951, apparently in dispute with
other members of the family as to methods of meeting management's obligations under the
Act, J. K, Milliken, Jr., was relieved of his authority as vice president and superintendent,
and his financial interest in the corporation was subsequently purchased by his brother,
Robert D. Milliken, and Frank L. Daylor. Daylor, a self-styled business "consultant," served
in that capacity for Mount Hope (Massachusetts) from 1943'until the fall of 1951, when he
bought an interest in the firm and became its vice president in place of J. K. Milliken, Jr.
At the peak of its production years Mount Hope (Massachusetts) employed about 1,300
persons. In July 1951, less than half that number were on the payroll.
Having obtained applications from a union representative, a few employees began intensive
self-organization on July 24, 1951. In the succeeding 3 days, 323 employees applied for
membership in the Union and designated it as their bargaining agent. At the hearing, counsel
for the Respondents conceded that all such applicants were on the payroll of July 23, and he
further conceded that their number constituted a majority of the 615 on the payroll in a unit
conceded to be appropriate i On July 27 the Union sent the company a letter claiming majority
representation and seeking contract negotiations as soon as possible The letter was received
by J. K. Milliken, Jr , the following afternoon, a Saturday
Because of unfavorable business conditions, management officials had considered, before
July 28, the possible necessity for an eventual reduction in force According to former
Superintendent Milliken, however, on July 28 and before he had received the union letter, he
was working at the plant "on the possibility of a lay off," and on that day proposed to lay off
at some future date about 120 employees On Tuesday, July 31, the next working day, about
I Checking of the documents in evidence reveals that General Counsel inadvertently listed
Harry L. Griffin, as his name appears on the payroll , as having signed a union application
both as Henry L. Griffin and as Harry Griffin . It thus appears , since there was but one Griffin
on the payroll at the time , that his application card was counted twice. The Trial Examiner
considers 323 to be the correct number of employees who had designated the Union at that
time.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
185 employees were suddenly and summarily laid off. The lay off of these employees is in
issue.
On July 30 the Union filed at the Board's Regional Office a petition for certification as the
employees ' bargaining agent . On the same day the Regional Director wrote to the Company,
informing it of the petition , and stating that a field examiner had been assigned to the case
who would appear at the company office on August 2 for a "joint conference." The Respondent,
upon receipt of this letter , retained E. T. Blake , a Boston attorney who at one time was em-
ployed by the Board . Blake , who admitted he had had " considerable experience before the
Board" and was "quite familiar with Board practice ," promptly requested and obtained an
8-day delay in the conference. On August 10, Blake and company officials permitted the field
examiner to interview them but refused , upon Blake's advice , to let the two union officials
come into the conference called by the Regional Director . The union officials were obliged to
cool their heels in the plant corridor.
It would appear from Blake 's testimony that he conducted the Board conference , and that
he decided "we would have a Board-ordered election," instead of a consent election. No
reasonable excuse was offered at the hearing in this case for the Respondent 's insistence on
August 10 for a "Board -ordered election ," since Blake and management refused to discuss
the matter with the Union to discover whether or not there might be a meeting of minds as to
details which would make a hearing and order unnecessary.
On the night of August 10, a union meeting was held A strike was voted, the grounds being
the layoff of the large number of employees on July 31, the refusal to bargain , and the refusal
to sit down with the union representatives that same day . The strike began on August 13, the
following Monday , and is in issue since General Counsel claims that it was caused by the
employer ' s unfair labor practices
A Board hearing was held on August 23, and an election was ordered on September 6. The
election was held on September 17, and the Union polled a majority of the votes cast in the
appropriate unit . Two days later , on September 19, the directors of Mount Hope, Massachu-
setts, met and authorized Daylor to " negotiate and secure offers" for the sale of the plant
and directed Robert Milliken " to run out the goods now in process in the plant." Joseph
Milliken, Jr., merely voted "present" at the meeting, apparently not in accord with the ma-
jority decision to abandon the plant. Pursuant to this direction , Robert Milliken issued in-
structions to his subordinates to cancel orders for supplies, and to cease starting any more
goods through their processing . Also immediately after the director ' s meeting Robert Milliken
announced to the local press that the plant would close "permanently" within 30 days, that
management was "fed up with unabated threats and economic and financial pressure exerted
by the union," and that "when you know you can't do business with a umon you've got to stop."
Milliken further declared to the press: "The door is closed now and forever to further ne-
gotiations between the union and management ." This conduct of the Respondent , including the
discharge of employees working on September 19, pursuant to Milliken's orders , is in issue.
In the meantime, and beginning on August 16, a number of conferences between manage-
ment and the Union were conducted by the Massachusetts Board of Arbitration and Concilia-
tion, in an effort to settle the strike. At a conference on September 20, the day after the
directors ' action and Milliken ' s public statements , a union representative raised the pertinent
question as to the value of further discussions if the plant was going to close . Blake said that
despite Milliken ' s statement that "the door is closed now and forever to further negotiations,"
the company would negotiate , and that he and Daylor would recommend to the directors, if a
settlement plan could be worked out, that the plant would operate "in the future." With that
assurance the Union continued to seek settlement of the strike issues . On October 5 Robert
Milliken , Blake, and the union officials signed a strike -settlement agreement . 2 The strike
negotiations and the settlement agreement are in issue , since the Respondent Mount Hope,
2 This was a strike- settlement agreement , not a collective- bargaining agreement.
MOUNT HOPE FINISHING COMPANY 509
Massachusetts, contends that such negotiations and settlement dispose of the claim of re-
fusal to bargain.
The Massachusetts plant has never resumed operations. Despite Blake's claims during
strike negotiations and the settlement agreement signed by himself and Robert Milliken, it
appears that since making his announcement to the press on September 19 Robert Milliken
actually and promptly embarked upon moving the operations to North Carolina. On September
28 Milliken entered into an agreement to lease the premises which were to be occupied by
Mount Hope (North Carolina.) He retained a group of attorneys in Durham, North Carolina,
who incorporated, for him, a dummy corporation called "Creedmoor Company, Inc." On
October 4, the day before Milliken entered into that above-described agreement with the Union,
he signed a lease for the North Carolina property. Thereafter equipment, supplies, and
machinery were shipped to Butner from the Massachusetts plant A few employees were sent
down from North Dighton, paid by the Massachusetts company, to set up machinery in Butner.
On December 3, still acting for Robert Milliken, the attorney incorporators changed the name
of the corporation to Mount Hope Finishing Company, Inc Robert Milliken then openly took
over, and the latter corporation began with a capital investment, if any, of only about $ 50.
Robert Milliken controls both Mount Hope, Massachusetts, and Mount Hope, North Carolina.
In January 1952, production began at the southern plant. At the time of the hearing about 165
employees were working there. No offer was made by any of the Respondents through the Union,
either to negotiate the transfer of the plant to North Carolina, or to employ their Massachu-
setts workers in North Carolina. This move of the Respondents is in issue as an effort on their
part to evade their legal responsibilities under the Act
B. The layoffs
As noted above, about 185 employees were laid off without warning on July 31 3 It is General
Counsel's contention that this mass layoff, - nearly 30 percent of the total payroll, was dis-
criminatory and to discourage union membership. The Respondent Mount Hope, Massachusetts,
takes the position that the layoff was due to economic necessity and was contemplated long
before the Union began to organize.
The preponderance of credible evidence, including that of surrounding events as to which
there is no contradiction , support General Counsel 's claim.
Although it is probable that management had considered the possibility of a general layoff
before self-organization of the employees began , the testimony of J. K. Milliken , Jr., makes
amply clear that: (1) Selection of individuals was not made until 2 or 3 days after organization
openly began in the plant; (2) only about 120 had been selected for possible layoff, on July 28
and before he had received the union request for recognition , (3) on July 28 no certain date for
the layoff had been set; (4) upon receipt of the union demand some 70 additional employees
were selected and the layoff made immediately Neither testimony of management officials
nor the company records in evidence reveal'the identity of these 70, as distinguished from those
selected up to July 28.
While the evidence warrants a reasonable suspicion that business conditions brought about
consideration of a possible layoff at some future date, other factors deprive of merit the Re-
spondent's claim that the mass layoff on July 31 was precipitated by economic necessity.
Management became aware of the union activity before selection of individuals or of date was
made. It is undisputed that on July 25 or 26 Superintendent Milliken approached one of the em-
ployee organizers , Armand Poudrier , at his machine , and specifically asked him if he had
signed a union card, where he had obtained it, and what he did with it. Nor was the testimony
of John Scares contradicted, to the effect that on July 25, the day after he signed the union
card , he was called to the superintendent ' s office and asked who the union leaders were. Such
interrogation by top management not only constituted interference , restraint , and coercion
within the meaning of the Act, but is a sound basis for the reasonable inference that manage-
ment was not only perturbed by the self - organizing efforts of the employees but also made its
selection of individuals for the layoff according to information solicited or otherwise obtained.
The plainly disproportionate number of union members who were actually laid off within a few
,Ten individuals , not named in the complaint , are shown by the Company's payroll to have
been laid off at this time under the same circumstances . They are: Donald J Klein, George
M. Rubadou, L. P. DeMarko, Oscar Maynard , Clara Hayes, Ann 0 Phillips, Richard V.
Smerdon, Leon A. Talbot, Albert Reed , and Antone G. Rose . These 10 are considered as an
integral part of the larger group named in the complaint.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
days of their signing union cards is convincing evidence that the selection was discriminatory.
Of the 185 employees laid off, some of whom were office employees and not in the appropriate
union of the Union, 128 of them had signed union-application cards.
In short, the Trial Examiner is convinced and finds that the Respondent Mount Hope (Massa-
chusetts) discriminatorily laid off the 175 employees listed in the amended complaint and the
10 named in footnote 3, above, in order to discourage union membership and activity, conduct
which thereby interfered with, restrained, and coerced employees in the exercise of rights
guaranteed by Section 7 of the Act.
C. The unfair labor practice strike
An undetermined number of employees struck on August 13, voting to take this action at a
meeting held on August 10, after company officials and their attorney had refused to permit
union officials to attend the joint conference called by the Regional Director for the purpose of
arranging an election The Trial Examiner considers, and finds, that by refusing to permit
the union representatives to sit in on this conference, the Respondent interfered with,
restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the
Act, and thereby violated Section 8 (a) (1) of the Act.
It has been found, above, that the Respondent on July 31 discriminatorily laid off a large
number of its employees. It thereby violated Section 8 (a) (1) and (3) of the Act. Both unfair
labor practices occurred before the strike vote and were among the reasons the employees
voted to strike. It is therefore concluded and found that the strike beginning on August 13, 1951,
was caused by the Employer's unfair labor practices.
D. Negotiations during strike; abandonment of Massacusetts
operations after Board election
It appears unnecessary here to review, in detail, the course of negotiations conducted under
auspices of the conciliator, looking toward settlement of the strike, occurring before the Board
election. No ultimate agreement was reached until after the election, and until after the Re-
spondent had not only publicly announced its decision, but had actually taken definite steps, to
abandon its Massachusetts operations
As described above, 2 days after the Union won the election, the Respondent's directors
voted, in effect, to abandon the plant. Daylor was instructed to secure offers looking toward
its sale: Robert Milliken was "directed" to "run out the goods now in process in the plant."
Within 10 days of the directors' action, Milliken had signed a lease for property in the South,
and orders for supplies at the North Dighton plant were canceled Milliken's public announce-
ment of the decision to abandon the plant and of his reasons therefore require scant comment.
They made it clear to all concerned that "the door is closed now and forever to further nego-
tiations between the union and management " Out of Milliken's own mouth came admission of
the Respondent's resolution to evade its responsibility under the Act to bargain with the Union.
While Robert Milliken was engaged in the actual conduct of closing one plant and preparing
to open another, Blake and Daylor continued to meet with union officials and the Common-
wealth's conciliator with an outward show of intent to reach agreement, settle the strike, and
resume operations. Undisputed events demonst rate that they neither met nor negotiated in good
faith. They admittedly were without authority to bind the Respondent's directors, a fact made
clear by them to the Conciliator at the first meeting in August. Daylor's assurance to the
union committee and the Conciliator on September 20, to the effect that "if a plan (to settle
the strike) can be worked out, the plant will operate," was based on no authority possessed
by him, was breached by subsequent events, and was directly contrary to the substance of his
testimony as a witness, that it was upon his advice, given long before September, that opera-
tions in Massachusetts were an economic liability and should cease
It is equally clear, however, that the Union accepted the company negotiators as proceeding
in good faith It is found that by signing the agreement of October 5, 1951, the first paragraph
of which states.
1. Strike to be called off immediately with the signing of this agreement.
The Union, as the exclusive bargaining agent for all employees in an appropriate unit, ef-
fectively served noticeonOctober 5 upon the Employer that the strike was abandoned uncondi-
tionally, and sought reinstatement for all strikers.
MOUNT HOPE FINISHING COMPANY 511
It is the claim of the Respondent Mount Hope (North Carolina) that it is a separate entity,
and is neither the successor to nor the alter ego of the Respondent Mount Hope (Massachu-
setts). The evidence fails to support the claim Robert Milliken controls both corporations, ac-
cording to his own testimony. Also, according to his own testimony, he has been and is now
operating the North Carolina plant with equipment, supplies, and machinery transferred to it
from the Massachusetts plant, and "for the most part," he admitted, on "Massachusetts"
money. In essence, and except for geographical location and employees, Mount Hope (Massa-
chusetts) is now and since January 1952 has been operating under the corporate name of Mount
Hope (North Carolina.) It processes for the same customers and sells through the same sales
organization, which is still controlled by Mount Hope (Massachusetts). It is concluded and
found that the Respondent Mount Hope (North Carolina) is the alter ego of the Respondent Mount
Hope (Massachusetts).4
It is also contended by the Respondents that the move to the South was for economic reasons,
and not to evade theduty to bargain with the Union. The contention is without reasonable merit.
While there is undisputed evidence that some consideration had been given, before union
activity began, to extending operations to the South, the testimony of J. K. Milliken, Jr.,
makes it plain that before July 28 no decision had been made either as to site or as to whether
or not another plant would be opened , and that management discussions up to then had not
contemplated the closing of the Massachusetts plant.
E. The refusal to bargain
The Board has found and the Respondents do not dispute that an appropriate unit of the Re-
spondents ' employees , for the purposes of collective bargaining , consists of:
All production and maintenance employees of the North Dighton plant , including powerhouse
employees and working foremen, but excluding office and clerical employees, professional
employees, guards, and all supervisors as defined by the Act.
Having found that the Respondent Mount Hope (North Carolina) is in essence the same as
the Respondent Mount Hope (Massachusetts). The Trial Examiner concludes and finds that the
appropriate unit now is "all production and maintenance employees at the North Dighton and
Butner, North Carolina, plants," with the above-cited inclusions and exclusions.
It is further found, on the basis of facts above set forth, that on July 28, 1951, and at all times
since that date, the Union has represented a majority of the employees in the above-described
appropriate unit, and therefore has been and now is the exclusive bargaining representative
of all employees in the said unit
The Trial Examiner further concludes and finds that since July 28, 1951, the date of receipt
of the Union's request to bargain, the Respondents have refused to bargain in good faith with
the Union The following conduct is the basis for the finding: (1) The refusal to permit union
representatives to attend the joint conference called by the Regional Director, (2) the summary
layoff of employees on July 31, 1951; (3) Robert Milliken's public announcements, above-
described , on September 19, 1951 , (4) the concealment on October 5, 1951 , of the actual inten-
tion of Mount Hope (Massachusetts) to abandon its local operations; (5) the removal of op-
erations to North Carolina, an effective lockout of all its Massachusetts employees (with the
exception of 3 or 4); and (6) the failure to offer, through the Union, the employees of the North
Dighton plant an opportunity to be transferred to the new location . By thus refusing to bargain
with the Union, the Respondents have interfered with, restrained, and coerced their employees
in the exercise of rights guaranteed by the Act.
4Daylor's testimony gives additional support to this conclusion. According to his extended
narration of events, he had long urged abandonment of the North Dighton operations and advised
opening a plant somewhere in the South. Yet when the move was made Daylor, himself, in-
vested at least $160,000 in Mount Hope (Massachusetts) and only about $10, (his recollection
was hazy even to that much) in Mount Hope (North Carolina). Such investment tactics by one
self-styled as a business "consultant" can only be explained by his knowledge that the con-
cerns, two in name and corporate fiction, were to be but one in reality and by his preference
to invest in that part of the Milliken venture which controlled the finances, equipment, sup-
plies, goodwill, trade marks, and selling organization. His judgment is unquestioned. His
exercise of it, however, further establishes the identity of the 2 corporations as but 1 enter-
prise.
51 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. The discharge of employees on September 19 the refusal to
reinstate employees on October 5
It is concluded and found that the action of the board of directors on September 19, 1951,
described above, in directing the cessation of operations at the Massachusetts plant, was an
effective discharge of all of Respondents ' employees including those who were then on strike.
On that date, as Robert Milliken publicly expressed it, the doors were closed, despite the fact
that the following day Blake and Daylor concealed the actual facts from the conciliator and the
union committee.
Furthermore, on October 5 the Respondents effectively refused reinstatement to all em-
ployees by entering into the agreement of thatdate--anagreementwhich Robert Milliker well
knew would not be kept , and was based upon concealment of the true facts and intentions.
The Trial Examiner therefore concludeb and finds that the Respondents' conduct,in dis-
charging employees on September 19 and refusing reinstatement on October 5 for the purpose
of discouraging union membership and activity, was discriminatory, and thereby interfered
with, restrained, and coerced employees in the exercise of rights guaranteed by the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above , occurring in connection with
the operations of the Respondents described in section I, above , have a close , intimate, and
substantial relation to trade, traffic , and commerce in 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 Respondents have engaged in unfair labor practices , it will be recom-
mended that they cease and desist therefrom and take certain affirmative action which the
Trial Examiner finds necessary to effectuate the policies of the Act.
Having found that the Respondents have discriminated in regard to the hire and tenure of
their employees , and have refused to reinstate them , it wiU*be recommended that the Re-
spondents offer to them immediate and full reinstatement to their former or substantially
equivalent positions at the North Dighton plant if they have since the hearing resumed opera-
tions there, or at the Butner, North Carolina, plant, or at any other plant which the Respond-
ents may be operating , without prejudice to their seniority and other rights and privileges,
and with the necessary traveling and moving expenses, in the following manner . All persons
now employed by the Respondents or who may be employed by the Respondents at any plant
which they now operate or may have acquired and may be operating at the time of compliance
with these recommendations , who were not employees of the Respondents on July 31, 1951,
shall, if necessary to provide employment for the employees on their payroll for the week
beginning July 23, 1951, be dismissed. If there is not sufficient employment then immediately
available for the persons on the payroll of July 23, 1951, all available positions shall be
distributed among the employees on the payroll of July 23, 5 1951, in accordance with the Re-
spondents ' usual method of operations under curtailed production, without discrimination
against any employee because of his or her union affiliation or activities , following the system
of seniority, if any, customarily applied to the conduct of the Respondent' business. Any em-
ployees remaining after such distribution for whom no work is immediately available, shall
be placed upon a preferential list prepared in accordance with the principles set forth in the
5 The Trial Examiner does not overlook the fact that it appears that a few employees, who
were on the July 23 payroll, were thereafter offered and accepted jobs at the Butane plant.
Neither the identity nor the circumstances of such transfers are revealed by the record with
sufficient particularity to determine whether or not bona fide offers were made, accepted, or
rejected. If records reveal, in the event of compliance, that full reinstatement offers, within
the terms of these recommendations, have already been made to certain employees here in-
volved, such offers need not be duplicated and back pay should be tolled accordingly. Nor do
records in evidence reveal precisely which employees voluntarily remained away from work,
on strike, beginning on August 13, 1951. It is presumed that the Respondents are in possession
of such records. This recommended Remedy contemplates that back pay for such strikers will
be tolled between August 13 and September 19, when by public announcement the Employer
effectively discharged all employees, including those on strike.
MOUNT HOPE FINISHING COMPANY 513
preceding sentences , and shall thereafter , in accordance with such list , be offered employment
in their former qr substantially equivalent positions as such employment becomes available
and before other persons are hired for such work.
It will also be recommended that the Respondents be required to make whole all employees on
the payroll of the week beginning July 23, 1951, who were discriminatorily laid off on July 31,
1951, or discharged on September 19, 1951, by payment to each of them of a sum of money equal
to the amount that he or she normally would have earned as wages from the date of such dis-
crimination to the date of offer of reinstatement , or in the cases of employees for whom there
is insufficient work available, to the date of his or her placement on a preferential list as above
set forth , as the case may be , less his or her net earnings during said period , the back pay to
be computed on a quarterly basis in the manner established by the Board in F. W . Woolworth
Company (90 NLRB 289). It willalsobe recommended that the Respondents preserve and, upon
reasonable request, make all pertinent records available to the Board and its agents.
It has also been found that on and after July 28, 1951, the Respondents unlawfully refused to
bargain collectively with the Union as the exclusive representative of the employees in an ap-
propriate unit . The Trial Examiner will therefore recommend that the Respondents upon
request , bargain collectively with the Union as such representative and, in the event that an
understanding is reached , embody such understanding in a signed agreement.
In view of the nature of the unfair labor practices committed, the commission by the Respond-
ents of similar and of other unfair labor practices may be anticipated. The remedy should be
coextensive with the threat . It will therefore be recommended that the Respondents cease and
desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Textile Workers Union of America, CIO, is a labor organization within the meaning of
Section 2 (5) of the Act.
2. All production and maintenance employees of the Respondents at their North Dighton,
Massachusetts , and Butner , North Carolina , plants , including powerhouse employees and
working foremen , but excluding office and clerical employees, professional employees , guards,
and all supervisors as defined by the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
3. Textile Workers Union of America, CIO, was onJuly 28, 1951, and at all times since then
has been, the exclusive representative of all employees in the aforesaid appropriate unit for
the purposes of collective bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing on July 28, 1951, and at all times thereafter to bargain collectively with
Textile Workers Union of America, CIO, as the exclusive representative of their employees
in the aforesaid appropriate unit the Respondents have engaged in and are engaging in unfair
labor practices within the meaning of Section 8 (a) (5) of the Act.
5. By discriminating in regard to the hire and tenure of their employees , and thereby dis-
couraging membership in the above-named labor organization , the Respondents have engaged
in and are engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
6. By interfering with, restraining , and coercing their employees in the exercise of rights
guaranteed in Section 7 of the Act , the Respondents have engaged in and are engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
COMMANDER MILLS, INC. and TEXTILE WORKERS UNION
OF AMERICA, CIO. Case No. 16-CA-574. July 30, 1953
DECISION AND ORDER
On May 13, 1953, Trial Examiner Arthur E. Reyman issued
his Intermediate Report in the above - entitled proceeding,