Munsingwear, Inc.

National Labor Relations Board - Board Decisions

Jul 15, 1959

124 N.L.R.B. 56 (N.L.R.B. 1959)

56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
actual execution date. As with union-security clauses,' and in deter-
mining the adequacy of a contract,' the Board will be governed by the
contents of the contract on its face in determining whether the con-
tract constitutes a bar to a representation proceeding.
On balance, we are not persuaded to adopt the Intervenor's position
by reason of its argument that, if the contract's effective date were
held to control, the parties would be deprived of the full 2-year period
of industrial stability. The parties and the employees have the bene-
fit of a full 2 years of effective contract coverage. Where the parties
negotiate a contract for an effective term of 2 or more years, with a
retroactive application, the 2-year reasonable period for contract-bar
purposes is thereby established in accordance with the terms of the
agreement as provided by the parties themselves.
We therefore conclude that it would best effectuate the policies of
the Act to compute the term of a contract for bar purposes from the
effective date of the contract. As the petition was timely filed within
the period of 60 to 150 days before the end of the second year from
the effective date of the contract, we find the contract no bar.
4. The following employees of the Employer constitute a unit ap-
propriate for purposes of collective bargaining within Section 9(b)
of the Act : 7 All production and maintenance employees at the Em-
ployer's Philadelphia, Pennsylvania, plant, including shipping and
receiving employees and the forklift operator on the night shift, but
excluding office clerical employees, laboratory employees, watchmen,
guards, professional employees, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
CHAIRMAN LEEDDOM took no part in the consideration of the above
Decision and Direction of Election.
6 Keystone Coat, Apron ,& Towel Supply Company, 121 NLRB 880.
6 Appalachian Shale Products Co., 121 NLRB 1160.
7 The parties agree generally to the unit description contained In the contract , except as
to the classification of lead men . As no individuals are currently employed In this classi-
fication, in accordance with our usual policy, we shall not make any unit determination
with respect to this category.
Marion Mills (Division of Munsingwear, Inc.) and International
Ladies Garment Workers Union , AFL-CIO. Cases Nos. 10-CA-
3008, 10-CA-3280, and 10-RC-3933. July 15, 1959
DECISION AND ORDER
On December 31, 1958, Trial Examiner James A. Shaw issued his
Intermediate Report in these cases, finding that the Respondent had
engaged in certain unfair labor practices and recommending that it
124 NLRB No. 11.
MARION MILLS (DIVISION OF MUNSINGWEAR, INC.) 57
cease and desist therefrom and take certain affirmative action, and
that the election held in Case No. 10-RC-3933 be set aside and a new
election be held, as set forth in the copy of the Intermediate Report
attached hereto. He also found that the Respondent had not engaged
in certain other unfair labor practices alleged in the complaint and
recommended dismissal of these allegations. Thereafter, the Re-
spondent, the General Counsel, and the Union filed exceptions to the
Intermediate Report with supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the exceptions, additions,
and modifications noted below.
1. The Trial Examiner found, and we agree, that the Respondent
violated Section 8(a) (1) of the Act. In so concluding, we rely upon
the following conduct of the Respondent, acting through Plant Man-
ager Nelson and Supervisor Pugh :1 interrogating employees con-
cerning their union sympathies, activities, and membership; threaten-
ing to move the plant upon the advent of the Union; attributing the
discontinuance of the bloomer line to the "union mess"; promising
benefits to employees if they would abandon the Union; and announc-
ing to employees that there would be no union solicitation in the plant
and that employees would be discharged for such activity.'
2. For the reasons detailed in the Intermediate Report, the Trial
Examiner found that the "bloomer" and "shoulder strap" lines were
discontinued for economic reasons and that employees thereon were
not discriminatorily terminated in violation of Section 8(a) (3) of
the Act. We agree with these findings.
However, the Trial Examiner further found that, by its issuance
of final separation notices to the employees on the aforementioned
lines, the Respondent violated Section 8(a) (1) of the Act. We dis-
agree with this finding. The bloomer and shoulder strap lines were
discontinued in August 1957. Prior thereto, employees had been laid
off because of slack business and were given a notice of layoff. The
recipient of a notice of layoff is viewed as a temporarily laid-off
employee and, for a period of 3 months following the layoff, is con-
sidered as an active applicant for reemployment even without the fil-
ing of a job application. An employee who receives a final separation
notice, however, is viewed as a terminated employee and is not con-
1 In view of our findings herein, we deem it unnecessary to pass on the status of the
" teachers" or to decide whether Respondent also violated the Act because of their conduct.
2 As is found hereinafter , this rule against union solicitation in the plant , even during
nonworking time, was discriminatorily motivated.
58 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD
sidered for further work by the Respondent , who hires only from a
current list of applicants for employment , unless and until he files
an application for work. The Trial Examiner found that the em-
ployees in issue were subjected to disparate treatment by the issuance
to them of final separation notices and , influenced by other 8(a) (1)
conduct found by him, concluded that the reason for the final separa-
tion notices in these cases was to warn other employees "to think it
over, so to speak, before joining the Union."
While we have adopted the Trial Examiner 's findings of 8(a) (1)
violations as noted above , we are not persuaded that the final separa-
tion notices were motivated as found by the Trial Examiner. There
are other circumstances to be considered in this connection which,
we believe , compel a different result. Thus , it does not appear that
employees who received notices of layoff in the past were laid off be-
cause of the discontinuance of their jobs ; it is therefore inappropriate
to compare the treatment accorded the complainants with the action
taken when employees were laid off during slack periods . Also, of
the 11 employees on the bloomer and shoulder strap lines at the time
of the discontinuance of those lines, only 4 are shown to have been
union adherents to the Respondent 's knowledge before their layoff.
Further, at the times these lines were discontinued , other employees
were in the process of being laid off , a substantial number of em-
ployees were in layoff status , and employees on Respondent 's payroll
were working on a part -time basis . In addition , a representation
petition had been filed by the Union , and the Respondent , intending
to agree to an election ,' decided to utilize the final separation notices,
as a notification to the employees whose jobs were discontinued and
for whom it believed there was no foreseeable prospect of reemploy-
ment 4 that their separations were permanent . The Respondent in-
tended thereby to avoid questions concerning the voting eligibility of
those employees from arising at the election.
Under all the circumstances , particularly the fact, as found by the
Trial Examiner, that the employees on the bloomer and shoulder
strap lines were separated because of the discontinuance of their jobs
for economic reasons, we find that the separation notices issued to
them were not discriminatorily motivated in violation of the Acts
3. Nor do we agree with the Trial Examiner that the Respondent
issued final separation notices to Complainants Christine Clark, Evie
Warren, and Joyce Parr in violation of Section 8(a) (3) of the Act.
s Respondent agreed to the election later in the month.
E It was not until sometime in November that Respondent began hiring again.
e We also reject General Counsel 's contention in his exceptions that Respondent dis-
criminatorily failed to recall these complainants following the representation election on
September 6, 1957. Apart from the absence of knowledge by Respondent of the union
activity of most of the complainants as noted above , the record does not establish that
any of them was a job applicant at a time when a job she could fill was available , follow-
ing the resumption of hiring in November.
MARION MILLS (DIVISION OF MUNSINGWEAR, INC.) 59
As found by the Trial Examiner, both Clark and Warren were laid
off on June 18, 1957, for economic reasons. On about August 8, when
the final separation notices were issued to other complainants herein,
Clark and Warren each received one so that, the Respondent testified,
their status would also not be confused at election time. The Trial Ex-
aminer found that they were thereby "effectively discharged" because
of union activities. However, as of August 8, as already noted, many
employees were in layoff status, additional employees were being laid
off, and a short workweek was in effect for employees on the job.
Whether Clark, Warren, or any of the other employees similarly
situated would return to work for the Respondent depended, at the
least, upon a change for the better in business conditions. And there
is no indication in the record that as of August 8, after almost
2 months of layoff, Clark or Warren had any reasonable expectancy
of further employment within the foreseeable future. It is against
this backdrop that we must weigh the position of the Respondent that
it viewed these two employees, like the others above-mentioned, as
permanently separated when it issued final separation notices to them
and that the reason for the notices, which merely "affirmed or con-
firmed" an existing fact, was to clarify the status of the employees for
election purposes. Considering the evidence in this posture, we are
not satisfied that the General Counsel has met his burden of proving
by a preponderance of the evidence that Clark and Warren were
discriminatorily terminated.
Parr was laid off on August 8, 1957, and was issued a final separa-
tion notice which the Trial Examiner finds also "effectively dis-
charged" her because of her union activities. However, the only
union activity by Parr disclosed by the record was her signing of a
union card sometime in May 1957. And there is no evidence from
which we can infer that Respondent was aware of this fact. Absent
evidence of Respondent's knowledge of Parr's union adherence, we
are unable to find that she was discharged for that reason.6
4. The Trial Examiner found that the "5909 slip line" was dis-
continued for discriminatory reasons in violation of Section 8 (a) (1)
of the Act, and that Complainants Berryhill and Roberts were
thereby terminated in violation of Section 8(a) (3) of the Act. We
do not agree with these findings.
The 5909 slip line was also discontinued in August 1957. Of the
15 to 20 employees on the line at the time of its discontinuance,
2, Berryhill and Roberts, are complainants. Our disagreement with
the Trial Examiner here is based on uncontradicted evidence, not re-
ported in the Intermediate Report, which establishes that in April
or May 1957, before any union activity known to Respondent, the
Respondent decided to produce the 5909 slip at its Hamilton plant.
O Union News Company, 112 NLRB 420, 423.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Because that plant was not ready for production of this slip, its
production was started at the instant plant herein involved and then
transferred to Hamilton when that plant was ready to produce the
slip, which was in August 1957. In the circumstances, we find no vio-
lation because of the discontinuance of the 5909 line or because of the
resulting loss of employment by Berryhill and Roberts.
5. The Trial Examiner has recommended that the election held in
Case No. 10-RC-3933 on September 6, 1957, pursuant to stipulation
for certification upon consent election entered into on August 23,
1957, be set aside. We agree.
Objection 1 filed by the Union in the representation case charged
the Respondent with "Imposing an illegal no-solicitation rule, specifi-
cally forbidding solicitation on behalf of the union on company
property during non-working time." In this connection, the record
shows that, beginning on July 15 and continuing into August 1957,
Nelson told employees, in groups and individually, that there was to
be no union solicitation in the plant and that employees would be
discharged for such activity. This prohibition against union solicita-
tion alone, on nonworking as well as working time, was timed to
coincide with the Union's organizational campaign and was not re-
voked during the critical period of the representation case.' In these
circumstances, and considering the 8 (a) (1) violations by the Re-
spondent found above, we conclude that, during the critical period
before the election, the Respondent maintained a rule against union
solicitation during nonworking time which was discriminatorily moti-
vated and that this unlawful rule against employee organizational
activity 8 interfered with the election. Although more than a year
has elapsed since that election, we believe it will effectuate the policies
of the Act to set it aside and direct that a new election be held.' We
shall so order.'°
ORDER
. Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that 'the Respondent, Marion Mills
(Division of Munsingwear, Inc.), its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees regarding their union interest,
7 Namely, the period between the execution of the stipulation for certification upon
consent election and the election itself. See F. W. Woolworth Company, 109 NLRB 1446.
8 See Time- O-Matic, Inc . v. N.L.R .B., 264 F . 2d 96 (C.A.7).
9 Linn Mills Company, 116 NLRB 96; Carter-Lee Lumber Company, 119 NLRB 1374.
10 We are convinced that the unfair labor practices committed by the Respondent are
potentially related to other unfair labor practices proscribed by the Act , and that the
danger of their commission in the future is to be anticipated from the Respondent's
conduct in the past. The preventive purpose of the Act will be thwarted unless our
order is coextensive with the threat.
MARION MILLS (DIVISION OF MUNSINGWEAR, INC.) 61
sympathies, activities, and membership in a manner constituting inter-
ference, restraint, or coercion, in violation of Section 8 (a) (1) of
the Act.
(b) Threatening employees with loss of employment because of
their adherence to the Union.
(c) Promising economic benefits to employees who abandon the
Union.
(d) Refusing to permit any employee, or in any other manner
denying him the right, to engage in union solicitation or discussion
on company property during nonworking hours.
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist the aforesaid or any other labor organization,
to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any and
all 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 authorized in Section 8(a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its plant in Guin, Alabama, copies of the notice at-
tached hereto marked "Appendix A." 11 Copies of such notice, to
be furnished by the Regional Director for the Tenth Region, shall,
after being duly signed by an authorized representative of the Re-
spondent, be posted by the Respondent immediately upon receipt
thereof, and be maintained by it for a period of 60 consecutive days
thereafter in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
to insure that said notices are not altered, defaced, or covered by any
other material.
(b) Notify the aforementioned Regional Director for the Tenth
Region in writing, within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FuRTJ-ER ORDERED that the election in Case No. 10-RC-3933 on
September 6, 1957, be, and it hereby is, set aside, and that Case No.
10-RC-3933 be remanded to the aforementioned Regional Director
for the Tenth Region for the purpose of conducting a new election
at such time as he deems that circumstances permit the free choice of
a bargaining representative.12
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."
12 The new election shall be conducted among the production and maintenance employees
employed by the Employer at its Guin, Alabama, plant, excluding all office clerical em-
ployees, professional employees, guards, and supervisors as defined in the Act, who are
employed during the payroll period immediately preceding the date of the issuance of
notice of election.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges unfair labor practices not found to have
been committed herein.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate our employees regarding their union
interest, sympathies, activities, and membership in a manner con-
stituting interference, restraint, or coercion, in violation of Sec-
tion 8(a) (1) of the Act.
WE WILL NOT threaten our employees with loss of employment
because of their adherence to the Union.
WE WILL NOT promise economic benefits to employees who
abandon the Union.
WE WILL NOT refuse to permit any employee, or in any other
manner deny an employee the right, to engage in union solicita-
tion or discussion on company property during nonworking
hours.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to join the aforesaid
or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any and all such activities
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a, condi-
tion of employment, as authorized in Section 8 (a) (3) of the
Act.
All employees are free to become, remain, or refrain from becoming
or remaining members of International Ladies' Garment Workers'
Union, AFL-CIO, or any labor organization.
MARION MILLS (DIvISION OF
MUNSINGWEAR, INC.),
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.
MARION MILLS (DIVISION OF MUNSINGWEAR, INC.)
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
63
Upon a charge duly filed by International Ladies' Garment Workers' Union,
AFL-CIO, herein called the Union, the General Counsel of the National Labor
Relations Board, herein respectively called the General Counsel and the Board, by
the Regional Director of the Tenth Region (Atlanta, Georgia), issued a complaint
and notice of hearing in Case No. 10-CA-3008, dated February 13, 1958, alleging
therein that Marion Mills (Division of Munsingwear, Inc.), herein called the Re-
spondent, had engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as
amended, 61 Stat. 136, herein called the Act.
A copy of the charge and notice of hearing were duly served upon the Respond-
ent and the Union.
On February 21, 1958, the Respondent filed its answer to the complaint in which
it denied the commission of any of the alleged unfair labor practices. Simultane-
ously the Respondent also filed a motion for clarification and more definite
statement.
Thereafter on February 25, 1958, counsel for the General Counsel responded to
the Respondent's motion in part and recommended that in all other respects it be
denied. On the same date the Regional Director submitted the Respondent's motion
and the response thereto to the Chief Trial Examiner of the Board for final disposi-
tion in accordance with Section 102.25 of the Board's Rules and Regulations.
Thereafter on February 27, Trial Examiner Sidney Lindner, to whom the motion
had been assigned for consideration, issued an order denying the Respondent's
motion.
On February 27, 1958, the Regional Director issued an order consolidating the
complaint in Case No. 10-CA-3008 with Case No. 10-RC-3933, and a notice of
hearing thereon. Copies thereof were duly served on the Respondent and the
Union. For convenience the above consolidated cases will be discussed below.
On February 4, 1958, the Union filed a second charge against the Respondent,
which the Regional Director designated as Case No. 10-CA-3220. Thereafter on
April 29, 1958, the Regional Director issued an order consolidating Cases Nos.
10-CA-3008, 10-CA-3220, and 10-RC-3933, a complaint in Case No. 10-CA-
3220, and a notice of hearing of the consolidated cases, all of which will be
thoroughly discussed below.
Copies of the order consolidating cases, complaint in Case No. 10-CA-3220, and
notice of hearing were duly served upon the Respondent and the Union.
On April 30, 1958, the Respondent filed its answer to the complaint in Case No.
10-CA-3220 in which it denied the commission of any of the alleged unfair labor
practices.
Specifically, the consolidated complaint 1 alleged (in Case No. 10-CA-3008) in
substance, that the Respondent (1) on or about August 2, 1957, discharged and
thereafter failed and refused to reinstate its employee William Kirk Cantrell, be-
cause of his membership in, and activities on behalf of, the Union; (2) on or about
August 8, 1957, laid off, terminated, and thereafter failed and refused to re-
instate the following employees, Melva Lou Akers, Autie Franks, Florence Humbers,
Adell May, Willie D. Morrow, Evelyn K. Sandlin, and Mae Nell Stephens, be-
cause of their membership in and activities on behalf of the Union; (3) on or
about August 23, 1957, laid off and terminated its employees, Catherine Eads
and Willa Dean Ballard for the same reasons as set forth immediately above;
on or about August 8, 1957, terminated the employment of the following em-
ployees, Willie Helen Berryhill, Christine Clark, Myrtle Moore, Joyce Parr, Imo-
gene Pugh, Willamae Roberts, and Evie Warren for the same reasons as set
forth in (1) and (2) above; (4) on or about August 21, 1957, laid off and subse-
quently provided less employment to Florence Caudle and Jo Nell Warren for the
same reasons as set forth in (1) and (2) above; (5) by the following named super-
visors and agents on or about various dates during the months of June, July, and
August 1957, interrogated its employees concerning their union membership, activi-
ties and desires, Arthur Nelson, plant manager, and Nettie Pugh, supervisor; (6) on
'All persons named in the consolidated complaint were employed at the Respondent's
plant in Guin, Alabama.
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or about July 31, 1957, by its plant manager, Nelson, promised its employees eco-
nomic benefits if they would abandon their membership in, and activities on behalf
of, the Union; (7) on or about July 16, 1957, by its plant manager, Nelson, an-
nounced to some employees that solicitation on behalf of the Union, and distribu-
tion of literature favorable to the Union, would not be permitted on company time
and/or property; and (8) that the acts described above constitute unfair labor prac-
tices affecting commerce within the meaning of Section 8(a)(1) and (3) and
Section 2(6) and (7) of the Act.
The consolidated complaint further alleges (in Case No. 10-CA-3220) in sub-
stance, that the Respondent (1) during and about the month of October 1957, re-
duced and curtailed the employment of Nell Green, an employee, at its Guin plant;
(2) on or about January 8, 1958, discharged and thereafter failed and refused to
reinstate the said Nell Green; (3) since on or about September 21, 1957, failed
and refused to reemploy its employee, Sue Seaborn, at its Guin plant; (4) on or
about August 21, 1957, by its plant manager, Arthur Nelson, interrogated its em-
ployee, Nell Green, concerning the membership in, and activities on behalf of, the
Union of herself and of other employees, and solicited said employee to spy upon
union meetings and report such activities to the Respondent; and (5) that the acts
described above constituted unfair labor practices within the meaning of Section
8(a)(1) and (3) and Section 2(6) and (7) of the Act.
As indicated above, notice of hearing in Case No. 10-RC-3933 was consolidated
with Cases Nos. 10-CA-3008 and 10-CA-3220. Briefly stated, Case No. 10-RC-
3933 concerns objections to an election conducted by the Board amongst the Re-
spondent's employees on September 6, 1958, which the Union lost. Thereafter the
Union filed timely objections to the election with the Regional Director of the
Tenth Region (Atlanta, Georgia). On January 27, 1958, the Regional Director
issued his report on objections to election, to the Board in Washington, D.C., and
recommended ". . . that objections 1 and 2 raise material and substantial issues of
fact and that the Board direct a hearing thereon."
On February 19, 1958, the Board issued an order directing hearing in Case No.
10-RC-3933 ". . . to resolve the issues raised by objections 1 and 2, and that such
hearing may be consolidated with a hearing on the complaint issued in Case No.
10-CA-3008. . . ."
Pursuant to due notice, a hearing was held on May 13, 14, 15, and 16, 1958, at
Guin, Alabama, before the duly designated Trial Examiner. The General Counsel,
Respondent, and the Union were represented by counsel. Full opportunity to be
heard, to examine and cross-examine witnesses, to introduce pertinent evidence, to
argue orally at the conclusion of the taking of the evidence and to file briefs was
afforded all parties. Well-considered briefs were filed with the Trial Examiner by
counsel for the General Counsel and the Respondent on or about July 10, 1958.
They have been carefully considered by the Trial Examiner. After the close of
the hearing, the General Counsel, at the request of the Trial Examiner, filed the
following stipulation: 2
STIPULATION
IT IS HEREBY stipulated and agreed by and between M. A. Prowell, Counsel
for Marion Mills (Division of Munsingwear, Inc.), Respondent; Robert Cohn,
Counsel for International Ladies' Garment Workers' Union, AFL-CIO, charg-
ing party, and Louis Lipsitz, Counsel for the General Counsel of the National
Labor Relations Board, Tenth Region, that:
Upon an Order Directing Hearing by the National Labor Relations Board in
Case No. 10-RC-3933, dated February 19, 1958, and identified in these pro-
ceedings as General Counsel Exhibit 1(1) and upon Order Consolidating Cases
and Notice of Hearing, dated February 27, 1958, and identified as General
Counsel Exhibit 1(m) in these proceedings, a consolidated hearing in the above
captioned cases was conducted before a duly designated Trial Examiner of the
National Labor Relations Board on May 13, 14, 15 and 16, 1958, at Guin,
Alabama.
The parties further stipulate that the exhibits, formal papers, orders, and
directives issued in Case No. 10-RC-3933 are part of the official record in the
consolidated cases and also stipulate that the Regional Director's Report on
Objections to Election dated January 27, 1958 and duly served upon the parties
9 The stipulation refers to the Trial Examiner as "James H. Shaw." It is hereby
corrected to read "James A. Shaw."
MARION MILLS (DIVISION OF MUNSINGWEAR, INC.) 65•
to this proceeding, shall be submitted to Trial Examiner James H. Shaw, who
heard these consolidated cases and shall be designated as General Counsel.
Exhibit 1(L)1 and shall be so received in evidence.
Dated 8-4-58 (S) M. A. Prowell,
M. A. PROWELL, Counsel for Marion
Mills (Division of Munsingwear, Inc.).
Dated 8-4-58 (S) Robert Cohn,
ROBERT COHN, Counsel for International
Ladies' Garment Workers Union, AFL-
CIO.
Dated (S) Louis Lipsitz,
Louis LIPSITZ, Counsel for the General
Counsel, National Labor Relations
Board, Tenth Region.
The above stipulation is hereby approved and made a part of the record herein..
The exhibits , formal papers , orders, and directives in Case No . 10-RC-3933 at-
tached to the aforesaid stipulation are hereby marked for identification as General
Counsel 's Exhibit No. 1(L) 1 and received in evidence by the Trial Examiner.
At the close of his case -in-chief the General Counsel moved to dismiss the com -
plaint as to the following employees named in paragraph 8 of Case No . 10-CA-
3008: Myrtle Moore and Imogene Pugh . The motion was granted by the Trial
Examiner . At the same time counsel for the Respondent moved to dismiss certain
allegations in the consolidated complaints . The motions were denied by the Trial
Examiner without prejudice to their renewal at the close of the hearing.
At the close of the hearing counsel for the Respondent , in effect, moved to dis-
miss the complaints . Ruling thereon was reserved by the Trial Examiner. The.
motions are hereby denied in part and granted in part as will be shown in detail,
below.
Upon the entire record in the case, and from his observation of the witnesses„
the Trial Examiner makes the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS OPERATIONS
The complaints allege, the answers admit, and the Trial Examiner finds that the
Respondent, Marion Mills (Division of Munsingwear, Inc.), is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
The record shows that the Respondent is now and has been at all times material'
herein a Delaware corporation with a plant located at Guin, Alabama, herein called
the Guin plant, where it is engaged in the manufacture and sale of lingerie.
Respondent at the Guin plant, during the past calendar year, which period is.
representative of all times material herein, manufactured, sold, and shipped finished
products valued in excess of $100,000 directly to customers located outside the:
State of Alabama.
The Respondent's business at its Guin plant will be discussed in detail below.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answers admit , and the Trial Examiner finds that
International Ladies' Garment Workers' Union, AFL-CIO, is a labor organization.
within the meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Before we get into the controversial issues involved herein the Trial Examiner
feels that it would be well to set forth a brief resume of the Respondent's opera-
tions at times material herein.
As indicated above, the Respondent, Marion Mills, is a division of Munsingwear,
Inc., a Delaware corporation, with its principal office and place of business in
Minneapolis, Minnesota. It is engaged in the manufacture of men's, boys', women's,
and girls' undergarments. From what the Trial Examiner gleans from the record,
525543-60-vol. 124 6
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
primarily from the testimony of Howard Sembla, production manager for the
Women's and Girls' Division, the Respondent's main plant is located in Minneapolis,
where it has two production units, one manufactures men's wear, and the other
known as Department 521, of which more anon, manufactures women's wear. In
addition, it operates two other plants in Minnesota, one at Montgomery and the
other at Little Falls. It also operates plants in Ashland, Wisconsin; Hominy,
Oklahoma; Hamilton, Alabama; and Guin, Alabama, the plant involved in the
instant case.
The record further shows that the Respondent's employees at the Minneapolis
plant are represented by the Textile Workers Union of America, AFL-CIO, and
at its Hominy, Oklahoma, plant, by the Charging Union herein.
As the Trial Examiner interprets the record, the Respondent opened its Guin
plant either in 1951 or 1952. The parties stipulated at the hearing herein that as
of September 6, 1957, there were 151 persons employed at its Guin plant, 146 fe-
males and 5 males. The record further shows that at all times material herein,
Arthur Nelson was the plant manager, and that under his direct supervision were
the following employees: Netta Pugh, a supervisor, and a group of employees classi-
fied as "teachers," of whom more anon.
Nelson's immediate superior was Howard Sembla, production manager for the
Women's and Girls' Division, whose headquarters, as indicated above, are in
Minneapolis, Minnesota. Since Sembla testified at the hearing herein regarding the
Respondent's overall managerial "set-up," his testimony will be reviewed in detail
below, in the section of this report concerning discontinuance of the bloomer line
at the Guin plant.
The record shows that the work in the Guin plant is officially divided into depart-
ments, such as the cutting department, pants sewers, ballyhoo line, folders, slip
sewers, and 5901 sewers. However, at the hearing, the witnesses referred to their
particular departments, as "the panty line; the bloomer line; the slip line"; and so
on. The Trial Examiner will confine himself to the language used by them in their
testimony, because he considers it not only descriptive of their work, but much
more interesting than technical terminology.
Insofar as the issues herein 3 are concerned, the Union started its organizational
campaign amongst the Respondent's employees sometime in March 1957. The
record shows that the first notice that the Respondent had of the Union's organiza-
tional efforts amongst its employees was sometime around the middle of June 1957.
According to custom, the plant was closed for vacation of the employees from
July 1 to 15, 1957.
On the morning of July 15, the plant reopened, and the employees reported for
work at their usual time, 7 a.m. The record shows that from there on until the
Board election, September 6, 1957, the Union engaged in an intensive organiza-
tional drive amongst the Respondent's employees. William Von Back, a staff
organizer for the Union, was in active charge of the campaign.
As indicated above, the employees reported for work on the morning of July 15,
1957. Before checking in for work, a group of the employees who were union
adherents got together outside the plant and organized a "committee" for the pur-
pose of calling on Plant Manager Nelson and to notify him that they intended to
organize the employees. Evelyn K. Sandlin, an employee on the "bloomer" line,
was selected as "spokesman" for the group. Shortly thereafter, the group went into
the plant and called upon Nelson. Though there are several versions in the record
as to what transpired at that time, the Trial Examiner feels that Sandlin's version
should be credited and set forth herein. It follows below.
Q. What, if anything, occurred on the morning of July 15, 1957? Will
you please relate?
A. Yes, sir. It was about 18 of us, a union committee, went in and told
Mr. Nelson, Art Nelson, that we were-I was spokesman for the committee,
and we told him, on inside the plant door-and I told him that we was the
union committee and our purpose was to help organize a union. And he said,
"Organize?" And I said, "Yes, sir, help organize." And I said, went on and
said we had taken an active part in the plant and planned to do so in the
future.
TRIAL EXAMINER: You are talking a little bit too fast, I think. It is awful
hard to hear you.
A. And he said we could not do it on company property.
3 See Board Case No. 10-CA-1517, referred to at the hearing herein by counsel for the
Respondent and in his brief filed with the Trial Examiner . This case was unpublished
and the Intermediate Report of it was issued on October 16, 1953.
MARION MILLS ( DIVISION OF MUNSINGWEAR, INC.) 67
Thereafter the employees had other meetings with Nelson either collectively or
in personal interviews with him in his office about the Union and their activities on
its behalf. Since the testimony goes to several of the issues involved herein, the
Trial Examiner will not discuss it in this section of the report, but will consider it
hereinafter when and where he deems it necessary to do so.
In furtherance of its campaign, the Union held meetings at the home of its mem-
bers, and at public places such as the miners' hall in Boston, Alabama. In addi-
tion, it held an automobile parade consisting of about 20 cars, which contained
25 persons, on Saturday, August 3, 1957. It started out from the miners' hall in
Boston, and then drove over to Winfield, Alabama, and from there to Guin. While
parading through Guin, it went by the plant, where several of the participants (who
testified at the hearing herein) saw Nelson standing in the doorway. From Guin
the parade continued on to Hamilton, Alabama.
In addition to the foregoing, the Union had handbills printed from time to time
which were passed out by its adherents in and near the plant. One of its handbills
had the names of the "Organizational Committee" printed on it. Since this par-
ticular handbill plays an important part in the Trial Examiner's ultimate findings
of some of the issues herein, it is set forth below:
IMPORTANT NOTICE
EMPLOYEES OF MUNSINGWEAR
GUIN, ALABAMA
Your Organizational Committee will hold a meeting of all employees
eligible for Union membership:
DATE: Wednesday, July 31, 1957
PLACE: Miners' Hall, Boston , Alabama
TIME: 7:00 P. M.
This will be a very important meeting for all of us.
Please make every effort to attend.
ORGANIZATIONAL COMMITTEE OF MUNSINGWEAR, GUIN, ALA.
International Ladies Garment Workers Union, AFL-CIO
Committee Members:
Evelyn Sand] in Helen Berryhill
Kirk Cantrell Edra Nell Townley
Florene Caudle Etma Markum
Evie Warren Audie Phillips
Tootsie Warren Ruby Phillips
Myrtle Moore Dorothy Morrow
Christine Clark Sarah Gray Wilson
Ruby Dickinson Icie Banks Estes
Catherine Eads Marie Pollard
On August 2, 1957, the Union filed a petition for certification of representatives,
Case No. 10-RC-3922. Thereafter on August 23, 1957, the Union and the Re-
spondent entered into a stipulation for certification upon consent election. What
transpired thereafter and immediately preceding the date of the election, Septem-
ber 6, 1957, is the predicate for the hearing herein on objections to the election,
which as noted above was consolidated with Cases Nos. 10-CA-3008 and
10-CA-3220.
Since the evidence herein regarding the objections to the election is so closely
interwoven with that concerning other issues, the Trial Examiner will not attempt
to segregate it and treat it as a separate and distinct issue insofar as the testimony
of the witnesses who appeared and testified at the hearing is concerned. He will, of
course, make separate and distinct findings and recommendations in accordance
with the Board's order directing hearing thereon.
Here, as in many cases that have come before the Trial Examiner over the years,
we are faced with issues of the credibility of the witnesses who testified at the
hearing herein. The resolution of the credibility of witnesses is always a difficult
and thankless task. But resolved they must be. This the Trial Examiner shall do
after careful consideration of each issue in the light of the record considered as a
whole, and let the chips fall where they may.
After long and careful consideration, the Trial Examiner has decided to deal
with the allegations in the complaint paragraph by paragraph for reasons which
will be apparent below.
68 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
B. The alleged violations of Section 8(a) (3) of the Act
1. The alleged discriminatory discharge of William Kirk Cantrell
Cantrell was discharged by the Respondent on August 2, 1957, allegedly for
cause. In the final separation notice which it mailed to Cantrell from its Minne-
apolis office, it gave the following reason for its action:
you are hereby notified that your employment with this Company will
end on (effective date) August 2, 1957. . . . Company Reasons . neg-
ligently causing Co. material to be thrown out as waste, improper performance
of duties and failure to protect Company property.
Cantrell was hired by the Respondent on December 1, 1952, as a maintenance
man. As such, he took care of the usual janitor work around the plant, such as.
sweeping the floors, cleanup work, mowing the lawn, loading and unloading trucks,
and looking after the engineroom. His starting pay was 75 cents per hour, which
was gradually increased to $1.15. Later on his hourly rate was increased to $1.30
per hour, in conformity with new provisions in the Federal minimum wage law,
where it remained until his discharge on August 2, 1957. After he had been on the
job for about 3 years, he was given a helper, Paul Dudley, who worked with him
up until around the middle of June 1957. After Dudley was hired, Cantrell's work-
ing hours were from 11 a.m. to 8 p.m. He carried a key to the plant from the day
he was ". `hired to the day"' he ". . . was fired."
Insofar as the issues herein are concerned, one of Cantrell's principal duties was
to sweep up the floors. By the very nature of the materials used by the employees.
in their work, pieces of cloth were constantly discarded as "scrap" and either
thrown on the floor or into boxes near their working places. It was Cantrell's job
to keep the aisles clean. The record shows that the "scrap" consisted of all kinds
and sizes of materials from pieces of substandard fabrics to strips of lace, some at
least 26 inches in length. The lace and other fabrics such as nylon and the like,
were issued to the employees in rolls varying in width and diameter, as well as in
cost. That the waste of these materials was of concern to the Respondent is evi-
denced by uncontradicted testimony in the record that Nelson issued orders to the
girls who used the materials, that strips of lace and the like that could not be used
on the particular garment they were working on at the time be placed in boxes for
use elsewhere.
The Respondent contends, inter alia, that one of the primary reasons 4 for its
discharge of Cantrell was because he not only swept up the scrap that was on the
floor but unused rolls of fabrics as well, and threw the entire lot into trash baskets
which were later dumped into trucks and carted away to the town dump, by the
local garbage collectors.
According to Plant Manager Nelson, the events leading up to Cantrell's discharge
were as follows:
On August 1, 1957, Netta Pugh, a supervisor, told Nelson that it had been re-
ported to her that Cantrell had some rolls of new material in one of the trash
baskets. What transpired thereafter is best told in Nelson's own words. An ex-
cerpt from his testimony is set forth below:
Q. And after you had that conversation, then what did you do?
A. I went out to the plant, and Mr. Cantrell was pushing a big box which he
collected rubbish from around the plant. It's on a four-wheel truck. He was
pushing that up to the back door. The city rubbish man was there at that
time, and his helpers were emptying other rubbish boxes into the city rubbish
truck. Just as I got to the back door, they took ahold of this box that
Mr. Cantrell had just pushed up there and were going to empty it into the
truck when I stopped them. I said, "I want this box emptied by hand piece
by piece because I want to see what's in it." So the men started doing that,
and I found in that box four rolls of valuable trim material.
According to Cantrell, there were trash boxes "all over the place and scrap of
all kinds on the floor." It was his custom to sweep up the floor and to dump the
boxes of scrap which were near the machines into a large box which he wheeled up
and down the aisles of the plant. As soon as a large box was filled, he would
wheel it out to the loading platform and set it aside for the trash collectors to pick
up later in the day. He would then put an empty box on the handtruck and go
back to clean up the remaining trash. The daily accumulation varied from 5 to
'For the other reasons, see infra.
MARION MILLS (DIVISION OF MUNSINGWEAR, INC.) 69
10 large boxes, all of which were dumped into garbage trucks operated by the
town of Guin. Marvin McKay, superintendent of streets, was in charge of the
truck and crew that. picked up the trash at the plant.
Cantrell testified that he had never been instructed to check the boxes of trash
for usable materials of any kind except that on one occasion Nelson instructed him
to salvage what he considered to be usable pieces of lace. He and his helper,
Dudley, did so for a time and the lace they salvaged was sent to Minneapolis. It
was later returned, and Nelson told him to burn it, which he did.
Cantrell was present when Nelson searched the trash boxes on August 1, 1957.
He testified that he had never seen Nelson do this before, and didn't know what
was going on," until Nelson told him after the trucks had left. His version
of the incident is best told in his own words:
Q. Will you relate what occurred on that day or the previous day that was
,out of the ordinary in connection with your duties?
A. Well, the day before that I was terminated Mr. Nelson was at the back
door and had the trash haulers-I found out later that he was having the
trash haulers
Mr. PROWELL: Just a minute. Mr. Examiner, I want to object to what he
found out later. That is obviously hearsay, from somewhere.
The WITNESS: They was having them to have to load the trash out of the
:boxes by hand that day.
TRIAL EXAMINER: All we want you to relate is what you saw.
The WITNESS: Well, I saw this.
TRIAL EXAMINER: Okay. That's fine.
The WITNESS: And he never did this before, so I didn't know what was going
•on. Well, it was that afternoon or the next day, I don't recall exactly, but after
the truck left, he came to me in the plant and stated that he had been informed
that there were whole bundles of lace going out the plant in the trash still in
cellophane bags. And he stated that I was the one that was throwing it in
there, "nobody but you," he said. Well, I put nothing in these boxes. I only
emptied it.
Q. (By Mr. Lipsitz.) Had you ever seen any lace of any kind or any waste
or any fabric in cellophane bags that was in the trash?
A. No, sir.
Q. And when he made the statement to you, what was your reply, if
anything?
A. I didn't make any reply.
In passing , the Trial Examiner desires to point out that Cantrell 's testimony as
to when he saw Nelson going through the trash boxes is most confusing, particu-
larly as to the date. After careful consideration, the Trial Examiner is convinced
and finds that Nelson first checked the trash boxes on August 1, and discharged
Cantrell the next day, August 2, 1957. He predicates his finding on the record
considered as a whole, particularly the testimony of Cantrell, Nelson, and Marvin
McKay, of whom more anon.
As indicated above, Nelson found four rolls of trim material in one of the trash
boxes. He took the rolls and showed them to his superior, Howard Sembla, who
was visiting the Guin plant at the time. He informed Sembla of the circumstances
under which he had found the rolls. They discussed the matter at length and
Sembla requested him to check with McKay, the town's rubbish man, and ascertain
whether or not he had in the past seen similar rolls of materials in the trash he
had carted away from the Respondent's plant to the town dump.
Nelson further testified that he got in touch with McKay the next day, August 2,
1957, and asked him to show him ". . . any materials that he had salvaged from
our so-called rubbish that had been thrown out from the plant." 5 McKay took him
up to his house and showed him two cartons of materials that he had salvaged
from trash he had carted away from the Respondent's plant, and told him that he
had in the past salvaged rolls of material from the trash similar to those found
therein on August 1, 1957.
After his interview with McKay, Nelson returned to the plant. What transpired
thereafter is likewise best told in his own words:
Q. And what happened then with respect to Mr. Cantrell?
A. It was very close to quitting time and it was on Friday. So I had to
pass out the pay checks, and I always passed those out in the cafeteria. The
5 Quoted portion from Nelson's testimony.
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
girls line up and get their checks. Mr. Cantrell came in to get his check.
I told him to go in the office and sit down and wait for me, which he did.
I had previously prepared a final termination and had it laying on my desk..
After I paid off all the other employes, I asked Netta Pugh to wait, to go in
the office with me. And when I went in the office Mr. Cantrell was sitting
there. I told him that due to his carelessness causing valuable materials to be
thrown out that I was terminating him.
Cantrell's version of the events leading up to his discharge on August 2, 1957, is
somewhat confusing. As the Trial Examiner interprets his testimony, he paid little
attention to what was in the trash baskets he picked up at the working places of the
employees or in the materials he swept up from around their machines and in the
aisles, for the reason he had never been instructed to do so, except to the extent
noted above as regards the lace. The only substantial evidence in the record that
pertains to his concern over the materials that were in the trash was when he
checked it on August 2, 1957, shortly before he was discharged. On this date he
found a pair of folded "panties" in one of the boxes. He took them to one of the
girls on the folding line and asked her if they were hers and she informed him that
she "hadn't folded any of that sort of panties." Even so he left them at her work-
ing place and walked away.
Cantrell testified that he signed a union authorization card sometime in April
1957, and that thereafter he had several conversations with Nelson about the
Union. The first was sometime in June 1957. At that time Nelson asked him if
he ". . . was about ready to join the Union and I said `Yes, sir, I guess I am' or
something to that effect."
Cantrell's account of a conversation he had with Nelson shortly before the
annual vacation, from July 1 to 15, 1957, is most interesting for the following
reasons. As the Trial Examiner sees it, Nelson's comments about the Union as
related by Cantrell in his testimony, about sum up the Respondent's general atti-
tude toward the Union. For this reason, the Trial Examiner feels that an excerpt
from his testimony should be inserted herein.
Q. Do you recall any specific instance of him discussing union with you?
A. Well, he said on one occassion that the company had been negotiating
with a union up North for some 30 days and it was quite aggravating to the
company and was a big expense to the company, and that we were getting
everything that the union people was getting except we wasn't having to pay
union dues. And he said that on one occasion up there the union steward or
business agent come in the plant to check on the grievances that had been
turned in the shop and there had only been two turned in. And he said, this
guy, the shop committeeman or business agent, raised cain with him about it
because they had not turned in more grievances than that. He said, "That goes
to show that the union doesn't want the shop to run smooth. They want the
people to think they are doing them a lot of good. They want to keep trouble
in the shop all the time."
Cantrell's activities on behalf of the Union consisted of (1) he was a member of
the committee that called on Nelson on the morning of July 15, 1957, and (2) he
participated in the parade on Saturday, August 2, 1957. By the very nature of his
work he had little if any opportunity to mix with other employees either in the
plant or elsewhere. It must be remembered that the production employees reported
for work at 7 a.m. and worked until 3 p.m. while Cantrell's hours, at times material
herein, were from 12 noon until 9 p.m. In the circumstances he had little if any
opportunity to engage in activities on behalf of the Union other than those related
above. Moreover, there is no testimony in the record that he discussed the Union
with the girls in the various departments as he meandered up and down the aisles
cleaning up the trash. Nor is there any evidence that he engaged in union activity
amongst the other four male employees who were employed by the Respondent
at the time.
As indicated above, Cantrell was on the union committee and was present when
it called upon Nelson on the morning of July 15, 1957. He testified that when he
reported for work at 12 noon that same day, Nelson called him aside and told him
in substance that if he caught him talking to any of the girls "in the plant" about
the Union that he would fire him. Cantrell's testimony stands uncontradicted and
undenied in the record and is credited by the Trial Examiner.
Marvin McKay who has been referred to above, was called as a witness by the
General Counsel in support of his case-in-chief regarding Cantrell. He testified that
he was and had been street superintendent for the town of Guin, Alabama, for
MARION MILLS (DIVISION OF MUNSINGWEAR, INC.) 71
9 years, and in his capacity as such was in charge of the collection of garbage
and trash.
According to McKay's credible testimony, he and his crew of from four to five
men had collected trash from the Respondent's plant ever since it started. At first
they called at the plant twice a week, but for at least the past 3 years they had been
collecting the trash every day. That is 5 days a week. They ordinarily arrived at
the plant right after lunch. After loading the trash they returned to the town
dump and unloaded it. What happened thereafter is most interesting.
The gist of McKay's testimony was that he would go through it and salvage
materials that he considered salable (which, as the Trial Examiner sees it, was his
prerogative) and take them home. For the most part the salvage consisted of strips
of lace and on several occasions unused rolls of materials. He placed the materials
on display in his home and resold them to various persons in the community. He
readily admitted all of these transactions to Nelson when he called on him on
August 2, 1957. In addition he showed him some boxes of materials that he had
salvaged and expected to sell. At no time did McKay implicate Cantrell, but on
the contrary testified that Cantrell had nothing to do with his activities in this regard.
McKay further testified that there had been very little salvageable material in the
trash picked up at the Respondent's plant since Cantrell's discharge.
Cantrell's testimony regarding the above is a "bit hazy." He impressed the Trial
Examiner as a lackadaisical sort of a person who was not particularly interested in
his job. His testimony that he had never had any instructions to check the trash
for rolls of materials and the like except the strips of lace referred to above, con-
vinces the Trial Examiner of his carelessness and lack of ordinary commonsense in
the performance of his duties. In the considered opinion of the Trial Examiner,
even a novice on the job would have unconsciously noticed and laid aside such
items as unused rolls of material similar to those found by Nelson in the trash on
August 1, 1957. In the circumstances, the Trial Examiner is convinced and finds
that the Respondent had just cause to discharge Cantrell, for the reasons stated in
his final separation notice.6
As indicated in the "Statement of the Case" section of this report the answer of
the Respondent was in effect a general denial of the allegations in the complaint
regarding the commission of unfair labor practices. Such a pleading is proper
under the Board's Rules and Regulations. As the Trial Examiner sees it, a party
may advance any defense it cares to under a general denial as long as it is pertinent
and relative to the issues. This the Respondent did at the hearing. Its first defense
of the discharge of Cantrell has been disposed of above. We now come to the
second defense which it advanced at the hearing herein.
To begin with, the Trial Examiner desires to point out that in such a state of
the pleadings neither he nor any other trier of the facts could anticipate the nature
of the testimony that the Respondent would advance in support of its position.
In fairness to all concerned, the Trial Examiner desires to point out that before the
Respondent offered testimony in support of its second and/or alternative reason
for the discharge of Cantrell, counsel for the Respondent did advise the Trial
Examiner and counsel for the General Counsel and the Union that he would intro-
duce evidence as part of the Respondent's defense-in-chief that would be somewhat
risque and to some perhaps vulgar and obscene. He suggested that the testimony
be adduced at a "closed hearing" to avoid the possibility of offending the sensitivities
of those present in the hearing room, a majority of whom were females. Counsel
for the General Counsel and the Union vigorously objected to a "closed hearing"
and pointed out that Board hearings are public hearings and for the Trial Examiner
to acquiesce to the Respondent's request would be contrary to public policy. After
long and careful consideration, the Trial Examiner denied the Respondent's request
and permitted the testimony offered by the Respondent to be presented in an open
hearing. He did, however, advise those present in the hearing room that the testi-
mony that would be offered by the Respondent might be objectionable to some of
those present and granted a recess in order that they could retire if they so desired.
It would be better for a De Maupassant or perhaps a Balzac to resume and dis-
pose of the testimony advanced by the Respondent in support of its second and/or
alternative reasons for the discharge of Cantrell. As he sees it, the simpler he sets
forth the testimony, the better for all concerned.
Quite frankly, the factual situation here places the Trial Examiner on the horns
of a dilemma? The problem confronting him is how to reduce the testimony in
e See supra.
7 "A situation involving choice between equally unsatisfactory alternatives ." (Webster's
New Collegiate Dictionary.)
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the record as regards this sordid affair to language satisfactory to most of us, with-
out destroying its purport and effectiveness as evidence pertinent to the issues herein.
A further difficulty is the fact that the descriptive language used by the witness,
McDonald, goes right to the heart of serious questions concerning the credibility of
other witnesses who testified at the hearing herein, and that posed by the failure of
the parties to call certain persons who might possibly have thrown light on the
situation. For example, Dudley and Clark, employees of the Respondent, or
someone familiar with the court records of Marion County, Alabama, regarding
McDonald's wife's suit for divorce, since he testified that the affaire was one of
the grounds for her success in that action.
Nelson testified that for some time prior to Cantrell's discharge on August 2,
1957, he had heard rumors to the effect that Cantrell had been engaging in some
"extra-curricular" activities on "company time and property" with an unknown fe-
male. These rumors came to a head shortly before Cantrell was discharged under
the following circumstances: According to Nelson, W. F. Clark, manager of the
cafeteria in the Respondent's plant, told him that one Curtis McDonald, whom the
record reveals to have been a sort of jack-of-all-trades who on several occasions
was hired by the Respondent to do odd plumbing jobs, such as fixing up-the toilets
and the like, had brought a woman into the plant for Cantrell's pleasure sometime
before their conversation.
Nelson then proceeded to get in touch with McDonald in order to get his version
-of the affair and his alleged participation therein.
Sometime in the latter part of July 1957, McDonald and Nelson met in the
latter's office in the plant. Nelson queried him about the "rumors" he had heard
and McDonald gave him an affidavit in which he set forth a brief account of the
"rumored" incident, and his participation therein. It is interesting to note in passing
that the affidavit was taken before Nelson in his capacity as a justice of the peace
in and for Marion County, Alabama. The instrument was witnessed by W. F. Clark,
manager of the Respondent's cafeteria. A resume .of McDonald's testimony of
the "affaire Cantrell" follows:
According to McDonald, he was doing some plumbing work at the Respondent's
plant in the latter part of January 1956. While he*Was there, Cantr or "Bill" as
he called him, came to him and asked him if he could "get him a woiI." Cantrell
gave as his reason for such an odd request that his wife had been RE' McDonald
agreed to "fix him up," so to speak. He had in mind a woman that he had been
running around with for several years. In fact, his wife had divorced him as a
result of his affair with the woman. He contacted her and she agreed to go with
him over to the Respondent's plant to see Cantrell. He picked her up one evening
at around 5 p.m., and took her over to the plant. Cantrell was waiting for them and
let them in through the back door. As soon as the preliminary formalities were
over, they all went into a large room where he had sexual intercourse with her and
then turned her over to Cantrell who did likewise.
McDonald further testified that he had told Nelson about the Cantrell incident
several months before he executed the above-mentioned affidavit, in a conversa-
tion ". . . down town I believe when we was talking about it." 8 His testimony
-on cross-examination follows:
TRIAL EXAMINER: Was that the first time when you discussed this matter
with Mr. Nelson?
The WITNESS: Yes.
Q. And Mr. Nelson did not tell you that he wanted this affidavit-
A. Mr. Nelson had asked me about it before, to be exact now, sometime
back and he asked me if I would make an affidavit to that.
Q. When was the first time Mr. Nelson asked you about this?
A. Oh, it was, I'd say, three or four months before this here was put on
paper, six months maybe.
Q. Was that also in the plant?
A. Well, it was down town I believe when we was talking about it.
Q. And Mr. Nelson did not indicate to you in any way that he was thinking
about discharging Mr. Cantrell and that was the reason he wanted this affidavit?
A. No.
Nelson, in effect, denied McDonald's testimony in this regard and insisted that he
did not learn of the details of the affaire until he took McDonald's affidavit on
July 24, 1957.
s Quotes from McDonald's testimony.
MARION MILLS (DIVISION OF MUNSINGWEAR, INC.) 731
Nelson did not mention the "affaire" to Cantrell at the time he discharged him..
When queried by the Trial Examiner as to why he did not do so, he answered that
he "didn't think it necessary."
As the Trial Examiner interprets the record and the Respondent's brief, Nelson's.
main reason for not mentioning the affair to Cantrell either at the time he dis-
charged him or in his final separation notice was because of the bad publicity that
might follow as a result thereof amongst the townspeople,
Even so, the Respondent's conduct thereafter regarding McDonald is, to say the
least, amazing in that it continued to do business with him after Cantrell was dis-
charged. It is most difficult to fathom Nelson's thinking in this regard, especially in
view of the fact that McDonald's role as the procurer, participant, and informer
was so vividly implanted not only in his mind but in that of Sembla as well (his
immediate superior), whom he had informed about the incident.9 Clearly, in such
circumstances, Cantrell's participation in the above-described affair had little, if
any, effect upon them insofar as "publicity" is concerned. Nelson's testimony of
the Respondent's relations with McDonald after Cantrell was discharged is most
enlightening. An excerpt therefrom follows:
Q. Mr. McDonald had access to your building after work hours?
A. The only time he's ever in the building after work hours is when he has a
job of plumbing to do.
Q. From his testimony apparently that is pretty often?
A. Well, we have had some very bad luck lately with our sewer.
Q. And you had been using him for your sewer work?
A. Yes.
Q. And you had used him in the past for your sewer work?
A. Yes.
Q. You had used him for your sewer work since the time he gave you this
affidavit?
A. Yes. He has no access to the building except when there is somebody
else there, and he never works except after the employes have all left the
building.
Further evidence that the "affaire Cantrell" was not a well-kept secret in the
community is found in the following excerpt from McDonald's testimony which
the Trial Examiner credits:
Q. Who did you report this to?
A. I didn't report it to anybody.
Q. Didn't you talk to Mr. Nelson about it?
A. Not right then.
Q. When did you tell about it?
A. Well, he called me up and asked me about it.
Q. When did he ask you about it?
A. Well, I'd say it was six or eight months ago, something like that.
Q. And what did you tell him?
A. I told him the truth.
Q. What did you tell him?
A. Just what is right there, just what you see on that paper.
Q. But you was only there that one time during the early part of 1956?
A. I was in there several times, but I was only there and saw this just one
particular time and know it to be a fact.
Q. Did you go see Mr. Nelson about this?
A. No; no, sir.
Q. How did this come up?
A. Mr. Nelson called me in and asked me about it.
Q. And how did Mr. Nelson find out about it, to call you?
A. I don't know. Everybody in town knew it. I don't know how he found
out about it.
Q. Did Mr. Nelson tell you about this?
A. What?
Q. Did Mr. Nelson tell you about it?
A. No. He just asked me what I knew about it. That's the only one-
everybody in town should have known about it. My wife divorced me on
account of it.
Cantrell denied the whole affair.
9 Sembla approved Nelson 's discharge of Cantrell.
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In such a state of the record the Trial Examiner quite obviously is confronted
with a serious question of credibility of the witnesses who testified regarding this
sordid affair. The Trial Examiner saw the witnesses, heard their testimony, and
has read and reread the record of the incident in question. In addition, he has
carefully considered the briefs submitted by counsel for the parties. After long
and careful consideration he is inclined to and does credit McDonald's testimony.
There have been several factors that have influenced him in reaching this conclu-
sion. To be sure, reasonable minds might conclude otherwise. Unquestionably
the testimony in the record of the affair has been of grave concern to the Trial
Examiner. The mere fact that McDonald admittedly was not only a participant in
the affair but the procurer and informer as well does not necessarily make him a
perjurer or disqualify him as a witness. This is a problem that juries and triers of
the facts are frequently compelled to face. His demeanor while testifying impressed
the Trial Examiner very much. He answered all questions both on direct and cross-
examination, casually and without embarrassment.
To the Trial Examiner the most serious problem raised by McDonald in his testi-
mony was the credibility of Nelson himself and the real motive behind Cantrell's
discharge. There is no question but what the Respondent had a right, absent some
ulterior motive, to discharge Cantrell for his participation in the above affair. Even
so, we are faced with McDonald's credible testimony that he personally had in-
formed Nelson of the affair several months before Cantrell was discharged. Hence,
the incident as a "motive" for Cantrell's discharge had been before Nelson for
months before he took any action on it. Quite frankly, Nelson's inaction from the
time McDonald told him about the "affaire" until the union drive was reaching its
peak in July 1957, makes his testimony suspect not only in this regard but as to
other issues as well.
Concluding Findings
In the circumstances found and described above, the Trial Examiner is convinced
and finds that the Respondent was justified in discharging Cantrell for either of the
reasons it advanced at the hearing herein. The question remains, however, were
the reasons it advanced at the hearing herein the real reasons or was it motivated
to take the action it did by Cantrell's union affiliation and activities on its behalf.
The General Counsel contends that it was the latter. In order to sustain his posi-
tion, the General Counsel must prove his case by a preponderance of the evidence
in the light of the record considered as a whole.
As the Trial Examiner sees it, the evidence adduced by the General Counsel
regarding Cantrell when viewed in the light of the whole record, particularly the
testimony of his own witness, McKay, creates considerable doubt as to the real
motive for Cantrell's discharge. Such doubt negates a preponderance. In the cir-
cumstances, the Trial Examiner is convinced and finds that the record does not
support the General Counsel's position regarding Cantrell. Consequently, he will
recommend that the complaint as to Cantrell be dismissed.
Without question there is a host of suspicion that the motivation for Cantrell's
discharge was for the reasons alleged in the complaint. But suspicion and con-
jecture are not enough, findings of fact must be predicated upon a preponderance of
the substantial evidence when viewed in the light of the record considered as a
whole. That essential element is lacking here.
C. The layoff of the girls on the bloomer line
The complaint in Case No. 10-CA-3008, paragraph 6, alleges that the Respondent
on or about August 8, 1957, laid off, terminated, and- refused to reinstate the em-
ployees named below, because of their membership in, and activities on behalf of,
the Union, and because they engaged in concerted activities with other employees for
the purposes of collective bargaining and other mutual aid and protection:
Melva Lou Akers Willie D. Morrow
Autie Franks Evelyn K. Sandlin
Florence Humbers Mae Nell Stephens
Adell May
The record shows that all of the above employees worked on the bloomer line.
In addition to those named above, there was one other girl who worked on the line,
Recie Dorman, who is not named in the complaint. At all times material herein,
MARION MILLS (DIVISION OF MUNSINGWEAR, INC.) 75
the employees named or mentioned above were the complement of the bloomer
line. All were either members of the Union or had signed authorization cards
except Recie Dorman.
The record shows that the bloomer line was "set up" sometime in September 1956,
and was discontinued on or about August 8, 1957. The girls who worked on the
line were in the employ of the Respondent on other lines at the time it was "set
up" and were transferred thereto by the management of the Guin plant. The former
position of each of the girls named in the complaint will be set forth below.
The garments upon which they worked were, of course, ladies' bloomers. All of
the witnesses who testified at the hearing herein referred to this department as the
bloomer line. The Trial Examiner shall do likewise.
In view of the Respondent's defense to the allegation in the complaint and the
position of the General Counsel regarding the closing of the bloomer line at the
Guin plant, the Trial Examiner feels that it would be better for all concerned to
first consider the testimony of Howard Sembla, production manager for the Women's
and Girls' Division of Munsingwear, the Respondent herein, and Nelson's immedi-
ate superior, regarding establishment and the closing of the bloomer line at the
Guin, Alabama, plant. By so doing, we will get a picture of the product we are
concerned with and its place in the hundreds of garments manufactured by the
Respondent in its plants scattered over the country.
At this time the Trial Examiner desires to point out to all concerned that the
testimony of Sembla regarding the reasons behind the Respondent's transfer of the
bloomer line to Minneapolis is quite detailed and must of necessity be considered in
the light of several documents which the Respondent offered in evidence in support
of its position. All of these documents were properly identified by Sembla and
received in evidence without objection.
As the Trial Examiner interprets the record, top management of the Respondent
in August 1955, hired a management consultant, W. S. Egekvist,10 whose job
was to set up a profit picture for Munsingwear. An excerpt from
Sembla's credible testimony better explains the purpose and the result of the con-
sultant's recommendations:
Q. You've heard some testimony with respect to the moving of a bloomer
line and a strap line and also some reference to a slip Number 5909. Would
you start back in the early part of 1957 and tell us just what happened, what
took place with respect to those items?
A. I think we have to start a little bit further back than that. You know,
Munsingwear is a fairly large corporation and makes a number of items; and
we have two principal products, men's and boys', women's and girls'. And
formerly the manufacturing was all conducted under one management. In
other words, one person would be responsible for the overall looking after all
of the products. Any of his assistants would also be responsible for that.
In August of 1955 Munsingwear hired a management consultant, W. S.
Egekvist. His job was to set up a profit picture for Munsingwear, and one of
the first things that he recommended was that the company be divisionalized so
that the management could be more concentrated. He presented his plans, and
the board of directors turned him down. However, in 1956 the company
experienced a very poor profit year. We just barely broke even. And as a re-
sult of that, his plans were advanced again in 1957 and were accepted. They
were accepted in a board of directors' meeting on April 24, 1957 in Min-
neapolis, Minnesota.
As a result of the action of the board of directors, top management of the Re-
spondent was compelled to move many items from plant to plant. We are pri-
marily concerned herein with the bloomer line, the shoulder strap line, and the
5909 line. The record shows that the Respondent's management in Minneapolis,
Minnesota, had anticipated favorable action on the management consultant's recom-
mendations by the board of directors at their annual meeting on April 24, 1957.
This is evidenced by an "Interdepartment Memorandum"" dated April 26, 1957.
Since this memorandum conveys the scope of the revamping of the Respondent's
reshuffling of items from one plant to another in order to have each plant concen-
10 See Respondent's Exhibit No. 12, consisting of six mimeographed pages.
11 Respondent's Exhibit No. 13.
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trate on either women's and girls' garments or men's and boys' garments, the Trial
Examiner feels that it should be set forth herein. The memorandum follows:
INTER-DEPARTMENT MEMORANDUM
Munsingwear, Inc.
To: Mr. L. D. DAWES From: C. W. PAULY
Subject: Timetable-Men's & Women's Division Move Date: April 26, 1957.
The timetable listed below has been set up to facilitate the orderly change of
Men's jobs from Women's departments and vice versa in line with the divi-
sional organization requested by management:
9-1-57 Helanca Pants Complete at Little Falls
Start at Hamilton
9-1-57 Pucker Pants Complete at Little Falls
Start at Hamilton
6-30-57 Men's Nylon Pajamas Complete at Hamilton
Start in Dept. 321
8-1-57 Men's Nylon Shorts Complete at Hamilton
Start in Dept. 321
6-15-57 Men's Cotton Athletic Suits Complete in Dept. 521
Start in Dept. 321
6-15-57 Men's Acetate Suits Complete in Dept. 521
Start in Dept. 321
6-25-57 Boxing of Montgomery Briefs Complete in Dept. 521
Start in Dept. 321
7-15-57 Fold, Press and Box Men's Complete in Dept. 521
Union Suits Start in Dept. 321
8-1-57 Relocate Women's Pony Fab-
ric Storage in Dept. 521
7-15-57 Convert First Floor Trim
Stores into Women's Fab-
ric & Trim Stores
8-1-57 Move Bloomer Unit from Complete in Guin
Guin to Dept. 521 Start in Dept. 521
8-15-57 Move Shoulder Strap Unit Complete at Guin
from Guin to Dept. 521 Start in Dept. 521
9-1-57 Move Quilted Robes Ashland to Dept. 521
9-1-57 Move T Shirts Hominy to Little Falls
9-15-57 Move Briefs Montgomery to Little Falls
CWP
cc: Mr. G. D. McConnell
Mr. C. M. Aldrich
Mr. W. S. Egekvist
Mr. R. C. Johnson
Mr. H. E. Sembla
Mr. V. W. Vomhof
File
Upon referring to the above, we find that the bloomer unit was to be transferred'
from the Guin plant to Department 521, Minneapolis, Minnesota, on August 1, 1957.
In order to more clearly understand the above memorandum, the Trial Examiner-
is convinced that an excerpt from Sembla's credible testimony should also be in-
serted herein.
Q. I hand you a document marked for the purpose of identification as Re-
spondent's Exhibit 13, entitled "Inter-Department Memorandum", dated
April 26, 1957, from C. W. Pauly, to Mr. L. D. Dawes; and ask you if you will
identify that for us please, sir?
A. To identify the men on it, Mr. Dawes is Executive Vice President of
Munsingwear. Mr. Pauly was Chief Industrial Engineer at the time this was.
issued. And this document is a time table setting forth the many moves that
were necessary to accomplish the divisionalization of the company.
A. In order to understand that there were many moves, you have to realize
that when we operated together we had a large number of departments and
plants who manufactured both men's and women's merchandise. And by
men's", I mean men's and boys', and by "women' s", I mean women's and.
MARION MILLS (DIVISION OF MUNSINGWEAR, INC.) 77
girls'. So, therefore, in order to divisionalize, we had to make changes through-
out the manufacturing departments and plants, and there was a great deal of
change in this time. The timetable represents the changes that were made.
Q. Now, was that timetable drawn, that is Respondent's Exhibit 13, was it
drawn in advance or in contemplation of the moves to be made with estimated
dates; or does that represent some document that was drawn subsequent to the
moves and simply a recording of the events that took place?
A. No; this was drawn up. We knew that the board of directors was going
to approve the thing. And as you know, a board of directors meets once a
year or quarterly, and our annual meetings happens to be in April at which
time our previous year's figures and so forth are released. And at that time we
knew that-or prior to that time we knew that on their meeting in April they
were going to approve it. And therefore Mr. Pauly had been instructed to
prepare this timetable so we would be able to start moving.
From what the Trial Examiner gleans from the record, the Respondent manu-
factured bloomers only at the Guin plant at the time the board of directors adopted
the reorganization plan on April 24, 1957. However, the Guin plant continued to
manufacture them until the line was closed on or about August 8, 1957. On the
latter date, the employees on the line were informed by Nelson that the line was to
be closed, and the operation moved to Department 521, Minneapolis, Minnesota.
The last order sent to the Guin, Alabama, plant for bloomers was dated June 19,
1957.12 The following notation in longhand is found on the order:
Art Nelson
Final cutting order
on bloomers-
Margaret Collins
The above order authorized the cutting of "144 dozen of style 5340 peach
bloomers," and was received at the Guin plant on June 21, 1957.
Sembla testified in substance that Nelson had nothing whatever to do with the
decision to move the bloomer line from Guin to Minneapolis, and was not even
consulted about it for the reason that it was a "planned operation" based upon sales,
trends, and economic conditions, which was the prerogative of top management.
As indicated above, the bloomer line at Guin was not closed until August 8,
1957. Sembla explained the delay from June 21, 1957, the date the order was
received at Guin, was because ". . . it takes from 5 to 6 weeks to clear your orders."
Sembla testified at great length at the hearing regarding the numerous transfers
and changes that were made by the Respondent's management in order to carry out
the reorganization plan authorized by the board of directors at its meeting on
April 24, 1957. His testimony in this regard is fully credited by the Trial Examiner.
As indicated above, one of the reasons advanced by Sembla for the decision to
concentrate the manufacture of certain lines in a particular plant or division of the
Company was economic. This was particularly true of the bloomer line. His testi-
mony is not only interesting but enlightening as well. A pertinent excerpt therefrom
follows:
Q. About when did you start the bloomer operation here at the Guin plant?
A. Oh, we took it out of Minneapolis, brought it down here, well, you got
me there. My guess is sometime in 1955 or early '56.
Q. Were girls trained for that particular operation here?
A. Yes, sir.
Q. Were you making bloomers at any other place while you were making
bloomers here?
A. No, sir.
Q. In no other plant?
A. No, sir.
Q. Did you at any time make bloomers at the plant in Hamilton?
A. No, sir. They are all made in one line. That one line was either-
originally in Minneapolis department, which is now 521, or were made here in
Guin, or were returned back to their original department. It is all made on
one line.
Q. Would you consider bloomers as part of a panty, ladies' panty; meaning
when you refer to ladies' panties, would you have the same significance in re-
ferring to ladies' bloomers?
m Respondent 's Exhibit No. 15.
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Well, according to testimony of one previous witness, she doesn't con-
sider them in the same class as panties.
Q. What are bloomers?
A. A bloomer is approximate knee-length undergarment that was quite popu-
lar at the start of the century, let's put it that way. It' s in a class with long
underwear in a lot of cases , and it is what you might call a declining market.
The people who liked to wear bloomers are ones who wore bloomers ever since
1900; and as long as they are still around, they are not about to change.
Therefore we have a business in it . And if we stopped our manufacturing, why,
of course a lot of our customers would be very unhappy.
Concluding Findings Regarding the Transfer of the Bloomer Line
Sembla's testimony concerning the reorganization of the Respondent's manu-
facturing facilities and in particular the centralization of certain "lines" of its prod-
ucts in particular plants not only stands uncontradicted and undenied in the record
but for the most part was logical and pertinent to the times . This is particularly
true of the bloomer line . It has been well said that what we know as men we can-
not ignore as triers of the facts. Hence, his testimony that the bloomer 13 market
was a "dwindling" one was logical and sensible when viewed in the light of the
present and not in the past. "What is past is prologue." To the Trial Examiner
at least, bloomers as articles of feminine apparel will soon rest ". . . in the hallowed
quiet of the past," alongside other fancied foibles of yesteryear, such as the bustle,
high-buttoned shoes, and the hobble skirt.
Though the Trial Examiner has found above that the motivation for the closing
of the bloomer line at Guin and moving it to Minneapolis was economic in origin
rather than for the purpose of interfering with and restraining its employees in the
exercise of the rights guaranteed them by the Act, this is not to say that he can
lightly thrust aside other pertinent allegations in the complaint _which are predi-
cated upon its action . 14 A resume of the testimony of the individuals named in the
complaint who were employed on the bloomer lines follows:
1. Evelyn K. Sandlin
One of the employees named in the complaint was Evelyn K. Sandlin. The
General Counsel contends that Sandlin was discharged by the Respondent because
of her membership in, and activities on behalf of, the Union. She was one of the
employees who worked on the bloomer line at the time it closed on August 7, 1957.
She appeared and testified at the hearing herein.
According to Sandlin 's credible testimony , she was first employed by the Respond-
ent in July 1954. Her first job was on the panty line where she worked as a left side
seamer, and a right side seamer. Later on she helped sew gores 15 in on the panty
line. In September 1956, she was transferred to the bloomer line where she worked
until she was laid off on August 8, 1957. The record shows, and Sandlin so testified,
that this was the first "bloomer operation" in the Guin plant. Eight girls worked on
the line. They have been named above.
During the course of her employment , Sandlin was off work a few times on
account of sickness and the like . In addition , she took pregnant leave from Septem-
ber 21 , 1955, until June 10, 1956. However , during this period she did report back
for work in February 1956, but there were no jobs available . She then applied.for
and received unemployment compensation until she actually returned to work on
June 10, 1956.
There is no substantial evidence in the record that she was ever criticized about
her work.
Sandlin joined the Union sometime in June 1957. The record clearly shows that
she was without doubt one of the most ardent supporters of the Union employed by
the Respondent at times material herein. This is evidenced by the fact that several
13 Bloomer, Amelia Jenks ( 1818-94), American dress reformer and women's rights
advocate , was born at Homer (N.Y.), on May 27 , 1818. In 1848 she took up the idea-
previously originated by Mrs . Elizabeth Smith Miller--of a reform in women 's dress, and
the wearing of a short skirt , with loose trousers , gathered round the ankles. The name
of "bloomers" gradually became popularly attached to any divided skirt or knickerbocker
dress for women. Until her death on December. 30, 1894, Mrs. Bloomer took a prominent
part in the temperance and woman suffrage movements . Encyclopaedia Brittanica,
vol. 3, p. 748.
14 See infra ; rdsumd of the testimony of Sandlin and Morrow.
15 Gore-a three -cornered piece of cloth sewn into a dress , sail, etc.
MARION MILLS (DIVISION OF MUNSINGWEAR, INC.) 79
of the employees who supported the Union selected her at a meeting held outside
the plant when they reported for work on the morning of July 15, 1957, to act as
their spokesman in a contemplated interview with Nelson to inform him that they
intended to "organize a union ." What transpired after Sandlin and the others went
in to see Nelson is best told in her own words:
Q. What, if anything, occurred on the morning of July 15, 1957? Will you
please relate?
A. Yes, sir. It was about 18 of us, a union committee, went in and told
Mr. Nelson, Art Nelson, that we were-I was spokesman for the committee,
and we told him, on inside the plant door-and I told him that we was the
union committee and our purpose was to help organize a union . And he said,
"Organize?" And I said, "Yes, sir, help organize." And I said, went on and
said we had taken an active part in the plant and planned to do so in the future.
TRIAL EXAMINER: You are talking a little bit too fast, I think. It is awful
hard to hear you.
A. And he said we could not do it on company property.
There are several versions of what transpired at the above meeting. They will be
set forth from time to time below as the Trial Examiner reviews the testimony of
other witnesses who were also present at the meeting.
The next day, July 16, 1957, Nelson held a meeting in the plant cafeteria with
around 20 employees. Sandlin was present. Her testimony was to the effect that
Nelson did all the talking, and that the only pertinent remarks he made were ". . . if
he ever see us or caught us talking, he would fire us." As the Trial Examiner sees
it in the light of the record as a whole, Nelson had reference to talking about the
"Union."
Set forth above is General Counsel's Exhibit No. 2A, which inter alia gives
names of the "Union Committee." Sandlin, who is named in the leaflet was also
one of the distributors thereof. She testified that she passed them out to the em-
ployees both inside and outside the plant. She passed them out first at 2 p.m., which
was the recess time for the bloomer line. Nelson saw her, and he came over
and ". . . told me that I couldn't do that it was company time." She apologized
and put the leaflets away. However, she resumed her activity at quitting time out-
side the plant as the employees left, at about 3 p.m.
The record shows that the "recess" periods, or "coffee breaks" were from "line
to line." In other words, the entire plant was not shut down at one time. At the
time Sandlin passed out the handbills, nearby "lines" were still in operation.
Sandlin further testified that at about this same time, Nelson reprimanded her
for talking to her fellow employees during working hours. Her testimony follows:
Q. Please relate what happened, if anything, then?
A. Well, the first time I got out of my seat to carry Mae Nell Stephens a
pair of bloomers to mend-
Q. Speak a little slower, will you, please.
A. And Mr. Nelson came over and told me that he done told me about
getting up out of my seat. And so I told him that I didn't care for him to call-
ing me down, but why didn't he call some of the others down. The ones that
he knew who was for union, he wouldn't have them get up out of their seat;
and the ones that he knew wasn't for union, he didn't care for them getting up
and talking. And so he went on in the office, and then I went on in the office,
too. And he showed me this writeup about Dave Beck.
TRIAL EXAMINER: About who?
The WITNESS: This Dave Beck, And he told me that union wasn't worth a
damn, it wasn't nothing but just to get your damn money.
She further testified that a few days later, Nelson called her into the office and
questioned her about her union activities. Her testimony is important for several
reasons, primarily because it demonstrates her intense activity on behalf of the
Union. Her testimony is as follows:
Q. Did you have any further conversation with Mr. Nelson or he with you?
A. Yes, sir. In about three more days, he called me in the office, and he
asked me did I have-No. He wanted to give me the same opportunity, he
told me, "that I gave the other girls." He asked me did I have any questions
or complaints, and I told him "No, sir." And he told me, "You are happy,
aren 't you?" And I said, "Yes, sir." And so he got to-he said he had heard
a rumor that I said if Munsingwear moved that I'd be glad to help them load
it up. And I said, "I did say it and 1 still mean it," And he said, "Well, don't
think we can 't move," and he called some place in Alabama that they could
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
move to. I said, "I didn't say you couldn't move; but if you do, just holler,
and I 'll help you load it."
And he said he had gotten into the habit of eating three meals a day, and I
said, "I've always had that habit." And I said, "I ate three meals a day before
Munsingwear came here; and if Munsingwear leaves, I'll still eat three meals
a day." And he said, Oh, he didn't know, and that's all.
TRIAL EXAMINER: Now, this all started over what?
The WITNESS: He called me in the office.
Q. Were other girls being called to the office at that particular time?
A. Yes, sir.
Sandlin was laid off on August 7, 1957, along with the other employees on the
bloomer line. What transpired at that time is likewise best told in her own words:
Q. Will you please relate what, if anything, occurred on the last day that
you worked, which you say was August 8, 1957?
A. Yes, sir. Willie May Atkinson came by and told us when we got what
we had sewed up to go in the office, that Mr. Nelson wanted to see us. So as
we started-Dorothy Morrow and myself started towards the office, he stopped
us. He met us rather out of the building, and he gave us a paper to sign and
said, "Girls, I guess you know what this means." Says, "This means that we
are not making bloomers here any more until the union mess is settled." And
we signed the papers.
TRIAL EXAMINER: Have you identified who this individual was?
Q. Who made this statement to you?
A. Art Nelson.
Q. The plant manager?
A. Yes, sir.
Q. And who was present besides yourself and Mr. Nelson when this state-
ment was made to you?
A. Dorothy Morrow.
TRIAL EXAMINER: That name is not clear to me.
Mr. LIPSITZ: Dorothy Morrow.
TRIAL EXAMINER: Is she alleged in the Complaint?
Mr. LIrsITz: Yes, sir. Miss Sandlin is alleged in paragraph 6 of the Com-
plaint and so is Miss Morrow alleged in paragraph 6 of the Complaint.
TRIAL EXAMINER: Very well. Go right ahead.
Concluding Findings
Ordinarily there would be ample justification for the Trial Examiner to find from
Sandlin's credible testimony that she and all the employees on the line were laid off
because of either their individual union activities or as a warning to all the employees
in the Respondent's Guin plant, that they could expect similar treatment if they
contemplated exercising their rights under the Act. Here then is the perplexing
problem that the Trial Examiner has been faced with throughout the abstracting,
study, and writing this much delayed report. The difficulty has been, as indicated
above, credibility of the witnesses and the documentary evidence that went into the
record without objection through the witness Sembla. The Trial Examiner, like
all triers of the facts, must look at the entire record. So is it here. He must weigh
it all in the light of the record as a whole. Consequently, here as in the case of
Cantrell above, he is required to consider the case in the light of the record as a
whole. He has found above that Sembla was a credible witness when viewed in the
light of the documentary evidence which he identified, testified as to his knowledge
of the origin of it, and admitted in evidence at the hearing without objection from
any party as to its authenticity. In the circumstances, the Trial Examiner recom-
mends that the case as to Sandlin be dismissed.
In reaching the above conclusion, the Trial Examiner has not ignored the credible
testimony of Sandlin and Morrow regarding Nelson's statement to them on the day
they were laid off that it was due to "this union mess." That testimony quite
frankly has caused him grave concern. But as indicated above, he must consider it
in the light of the entire record. Though he is convinced and finds that both
Sandlin and Morrow were credible witnesses and Nelson despite his denial was not
insofar as this particular incident is concerned, nevertheless for the reasons stated he
feels compelled to find as he did above, regarding the layoff of girls on the bloomer
line,
He does find, however, that Nelson's conduct as related by Sandlin was so clearly
violative of Section 8(a)(1) of the Act, that citation in support of his conclusion
MARION MILLS (DIVISION OF MUNSINGWEAR, INC.) 81
is neither necessary nor desirable in this an already too burdensome report . Further
comment regarding the above follows below.
Sandlin and the other employees who were working on the bloomer line at the
time it was closed on August 7, 1957, were given final separation notice forms when
they were laid off. The record shows that this form is only given to employees when
the Respondent is through with them , and does not intend to rehire in the future.
For example , this was the form that was given Cantrell when he was discharged.
Hence, all the girls who were laid off on the bloomer line were put in the same
category as Cantrell insofar as reemployment by the Respondent is concerned. The
Respondent had another form which it gave to employees when they were laid off
due to lack of work and the like. It was styled "Notice of Layoff."
The record also shows that in September 1957 the Respondent hired a number of
new employees as seamers . This was the same type of work that the majority of
the employees on the bloomer line had been doing before they were transferred to it.
The record already shows that seven of the eight employees on the bloomer line
were active union members. This is particularly true of Sandlin . Her activities
have been set forth above.
Nelson's statement to Sandlin and Morrow on the day they were laid off and
given their final separation notices, that the bloomer line was closed on account of
"this union mess" indicates to the Trial Examiner that there was more than meets
the eye, when the Respondent chose to give the laid-off employees final separation
notice. Sandlin was a "talker" and an outstanding union adherent . The Trial
Examiner is convinced that Nelson who was well aware of her activities knew that
she would tell the employees in the plant that the line was being closed on account
of this "union mess." Thus spreading fear amongst the employees to exercise the
rights guaranteed them in the Act.
In the circumstances the Trial Examiner is convinced and finds that Nelson's
statement was not only violative of Section 8(a)(1) of the Act, but indicates to the
Trial Examiner that the act of the Respondent in giving the employees final separa-
tion notices instead of regular layoff slips, was likewise violative of Section 8(a) (1)
of the Act . And he so finds.
In the Trial Examiner's opinion , the giving of final separation notices to the
employees on the bloomer line when coupled with Nelson 's statement that the
layoff was due to this "union mess" caused great apprehension amongst the em-
ployees who were contemplating exercising the rights guaranteed them in the Act.
For this reason , the Trial Examiner will recommend below that the employees
named in paragraph 6 of the complaint , that is the girls on the bloomer line, be
placed on a preferential hiring list and each of them offered immediate employment
at the first jobs for which they are qualified that are available in the Respondent's
Guin, Alabama, plant.
While the record shows that the practice of the Respondent regarding layoff was
to say the least a bit "hazy," nevertheless , it did give to employees a regular layoff
slip in a majority of instances . This was particularly true as to the period before
the Union started its organizational drive. It was for this reason that the Trial
Examiner has made the above findings and recommendations.
It must be remembered that the Act is remedial , not penal in nature . That provi-
sion applies here in view of the Trial Examiner 's finding that the layoff on the
bloomer line was contemplated long before the Union started its intense organiza-
tional drive in July 1957. His findings are discussed at length above and will not be
reiterated here.
2. Willie D. Morrow
Morrow, like Sandlin and the others named in the complaint who worked on the
bloomer line when it was shut down on or about August 7, 1957, is alleged as a
discriminatee for her union membership and activities on its behalf.
She testified at the hearing herein and impressed the Trial Examiner as a reliable
and credible witness. She entered the employment of the Respondent on Septem-
ber 13, 1952 , as a seamer on the gown line. She worked at this job for 13 months
and quit . She was rehired on October 25, 1955, on the cotton panty line as a
seamer. From there she was transferred to the bloomer line when it was set up.
She, along with Sandlin, was laid off on August 8, 1957.
Morrow signed a union card on June 25 , 1957. Thereafter , she was actively
engaged in union activities . She was a member of the committee that called on
Nelson on the morning of July 15, 1957. Her testimony corroborates that of
Sandlin as to. what transpired at that time , except she testified that Nelson said
this ". . Go ahead . . . that we could not get any cards signed upon company
property."
525543--60-vol. 124-7
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
She, like Sandlin, was interviewed privately by Nelson in his office about her
-interest in membership and activities on behalf of the Union. This occurred
. . about a week before I were laid-off." Her testimony is typical of all who
were interviewed by Nelson, which without doubt was clearly violative of the Act.
Excerpts therefrom follow:
Q. Please continue.
A. He had the committee list, paper, laying there on the desk. And he said,
"Willie," said, "I see you are leaning toward the union, and," said, "I hope
you'll reconsider things before it is too late."
Q. Do you recall anything else that was said?
A. He said the union organizer, William von Bach, was going around telling
all of us girls a bunch of lies. And I asked him if the plant would move if the
union came in, and he said, "I haven't said it would move, but," said, "in my
own words, I figure it will." Said, "They could get labor cheaper up North
than they could here, after transportation."
TRIAL EXAMINER: Did he say where up North?
The WITNESS: No; he didn't.
Morrow also corroborated Sandlin's testimony about Nelson's statement to them
at the time they were laid off.
Concluding Findings
The Trial Examiner finds the same as to Morrow as he did to Sandlin, and for
the same reasons.
3. Mae Nell Stephens
Stephens, like Sandlin and Morrow, is named in paragraph 6 of the complaint as
one of the girls laid off on August 7, 1957, when the bloomer line was moved to
Minneapolis.
She, like so many others who testified at the hearing, was a longtime employee of
the Respondent before her termination on August 13, 1957.
Her employment history was as follows: (1) employed September 1952; worked
7 months and quit; laid off for 14 months; then went back to work and ". . . worked
continuously .. except for ".. leave of absence or being . . . sick or some-
.thing like that."
Stephens signed a union card sometime "around June 1957." Though she was
not on the "Committee" that called upon Nelson on the morning of July 15, 1957,
she did follow them into the plant and stood in the background and heard what
went on.
Later on that same day, Willie May Atkinson, the teacher 16 on the bloomer line,
came to her and engaged her in conversation about the Union. Her testimony was
as follows: . I could have knocked her down with a feather if she'd of think
that I was for the Union." She told Atkinson that ". . . we could still have our
differences and be friends." She further testified that she and Atkinson were good
friends and visited back and forth and "got together a lot at their homes."
Though the Trial Examiner is not convinced that the above conversation between
two old friends was a violation of the Act, he does, however, feel that this conversa.
tion and Atkinson's knowledge of her membership in the Union played a part in her
interview by Nelson shortly thereafter.
While we are at it, we might as well dispose of the status of the teachers because
they crop up all over the record in the testimony of several of the General Counsel's
witnesses. The General Counsel contends in effect that they are supervisors within
the meaning of the Act. The Respondent contends that they are not. In support
of its position the Respondent offered in evidence a description of the "Job Title"
of the teachers:
JOB TITLE: Teacher
MUNSINGWEAR, INC.
JOB SPECIFICATION
OCTOBER 23, 1957.
1. Must know how to operate machines in department.
2. Instructs new operators how to operate sewing machines and old operators
how to sew new styles.
3. Spot checks work of operators assigned to her.
4. Instructs new employees regarding routine work duties.
1e See infra.
MARION MILLS (DIVISION OF MUNSINGWEAR, INC.) 83
5. May do mending work.
6. May do experimental sewing.
7. May assist and advise operators who encounter difficulties with their work.
In the considered opinion of the Trial Examiner that while the teachers were not
supervisory employees within the meaning of the Act, they were "instrumentalities"
through which the Respondent gathered important information about the union
activities of its employees and the dropping of pertinent hints to them about what
would happen to them if the Union came into the plant. In a recent case, the
Board had a somewhat similar situation.17 In that case a foreman who was not
an agent of the Respondents, nevertheless, was the "instrumentality" through which
the Respondent carried out its violation of Section 8(b)(4) of the Act.
A pertinent excerpt from the above-mentioned case follows:
On these facts the Trial Examiner concluded that no violation of 8(b)(4)
had been proved, because Kamoske did not at any time address his remarks to
Miller's employees, but only to Foreman Adams who was not an agent of
Respondents. We deem it unnecessary to decide whether, as found by the
Trial Examiner, the Sand D007 -2 and Booher Lumbers cases in which the
Board found that foreman-members acted as agents of their unions, are dis-
tinguishable from the instant case. For contrary to the Trial Examiner we
find that Respondents are accountable for Adams' action in relaying to Miller's
employees Kamoske's order not to install the Del-Mar cabinets, whether or not
Adams be regarded as an agent of Respondents.
In our view Adams was the instrumentality through which Kamoske in-
formed Miller's employees that the Del-Mar cabinets were not approved for
installation by their union. Kamoske told Adams not to install the cabinets
and Adams relayed this information to th° employees. Given the nature of
Adams' obligations as a union member, there was no need for Kamoske
specifically to instruct Adams to convey his order to the employees. Though a
foreman, Adams was a union member, and was obligated to "adhere to the
working rules" of Respondent District Council which required him "not to
install or erect trim, millwork or fixtures that do not bear the labor or stamp"
of the Carpenters, and which imposed upon him the "duty" of preferring
written charges against fellow members who violated the rules. Thus Adams
was not only precluded from working on nonapproved work but was obliged
also to promote adherence to such rules by other members.
aLocal 1976, United Brotherhood of Carpenters and Joiners of America, AFL,
et at. (Sand Door & Plywood Co.), 113 NLRB 1210.
aLocal 1016, United Brotherhood of Carpenters & Joiners of America, AFL-CIO,
et at . (Becher Lumber Co., Inc.), 117 NLRB 1739.
From time to time the Trial Examiner will have occasion to refer to his finding
above regarding the teachers.
Stephens further testified that she and her husband called at the home of Willie
May Atkinson to inquire as to the condition of her husband who had been injured
in an accident. This was on the Sabbath following the July 15, 1957, incident.
While they were there, Nelson dropped by for the same purpose. During the con-
versation that ensued, she testified that the Union crept into the conversation, and
that Nelson told them that ". . . things in our shop are really in a mess because of
the Union." Both Nelson and Atkinson denied her testimony in this regard.
Atkinson did admit in her testimony that the Union was mentioned while the
Stephens and Nelson were in her home, but from an entirely different angle.
Atkinson testified that either before or after the visitors arrived, some unidentified
union supporter called her and threatened to blow up her home. There is no testi-
mony in the record that the local police or any other law enforcement agency was
advised of this. In the considered opinion of the Trial Examiner, Atkinson should
have advanced some testimony, not only as regarding herself, but as a responsible
citizen in the community. Her inaction casts considerable doubt as to her credibility
as a witness. Nelson's demeanor as a witness did not impress the Trial Examiner.
His testimony regarding the "affaire Cantrell" and other portions of his testimony,
plus the impression he left with the Trial Examiner, compels him to discredit his
denial. He takes the same position as to Atkinson. In the circumstances he credits
Stephens' account of the incident and discredits the denial of Atkinson and Nelson.
The question is now posed as to whether Nelson's remarks were violative of the
Act. They were made in a private home in a friendly atmosphere, in the course
17 See Del-Mar Cabinet Company, Inc., 121 NLRB 1117.
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of conversation back and forth between those present. In the circumstances, he
makes no finding in this regard . Primarily because of the "setting" in which such
remarks are made, like for example in a "captured audience ," such as was found
in the Dixie Terminal case . 18 Further discussion of this follows . What transpired
the day following the conversation in Atkinson 's home, is in point to the Trial
Examiner 's observations and position.
According to Stephens ' credible testimony , she was called into Nelson 's office and
interviewed concerning her union sympathies , activities , and the like . An excerpt
from her testimony follows:
Q. What, if anything, happened the following day?
A. Well, I was called into the office.
Q. Who called you into the office?
A. Mr. Nelson.
Q. Please tell what happened then?
A. Well, he was talking about the difference between the union and not
having a union, said we already had everything the union could give us there.
And he said, "As I told you last night , if the union comes in" that the shop
would definitely move.
Q. Did he tell you where the shop would move to?
A. He said "it would definitely move" to me.
Q. Continue please.
A. Well, I think he said something about-
TRIAL EXAMINER: No. No. What he said.
A. Anyway he said-he asked me about signing a union card , and I told
him that I had. And he told me if I wanted to clear my conscience election
day, why, I could.
The Trial Examiner credits Stephens ' testimony regarding the above . One of the
primary reasons for his finding is Nelson 's testimony wherein he admitted calling
individual employees , who were clearly identified as union supporters at the hearing
herein , and interrogating them about their union sympathies , activities , and the
like. His testimony was ". . . I felt in my own mind that if the Union came into
the plant and caused as much disturbance and additional cost of operation as I had
observed it in other plants that I couldn 't see how the Company could afford to
operate."
In the considered opinion of the Trial Examiner , Nelson 's interview with Stephens
in his office as described above, was likewise so clearly violative of the Act that he
sees no necessity of citing cases ad infinitum to support his finding . One must
realize that when employees are called into the general manager's office and queried
about their activities in the exercise of their statutory rights under the Act, that the
only logical inference that can be drawn from such conduct is that it was for the
purpose of intimidating the individual employees subjected to such a query to be-
ware of the consequences of exercising his rights . The important thing is the
setting; the general manager's office is a most convenient and suggestive place to
intimidate employees.19
Stephens , like all of the employees who were laid off on the bloomer line was
given a final separation notice. For the same reasons advanced as to Sandlin and
Morrow, the Trial Examiner will hereinafter make the same recommendations as
to her. In passing , the Trial Examiner desires to point out that the parties stipu-
lated at the hearing that all the girls on the bloomer line were given final separation
notices when they were discharged.
4. Melva Lou Akers
Melva Lou Akers was hired by the Respondent on September 25, 1956. She
started out on the bloomer line and worked there until she was laid off on August 13,
1957, and like Sandlin, Morrow, and Stephens , was given a final separation notice
at the time.
Her job on the bloomer line was to string elastic, which is hard work and accord-
ing to her , very difficult . She had no experience as a machine operator . At the time
of the hearing herein , she was unemployed . In December 1957, she went to the
Respondent and asked for a job, and was informed that none were available.
See Dixie Terminal Co., infra.
19 See N .L.R.B. v . Dixie Terminal Co., 210 F . 2d 538 ( C.A. 6), enfg . as modified 102
NLRB 1452 ( certiorari denied 347 U.S. 1015 ), 35 LRRM 2059 denying company petition
to vacate enforcement decree ( certiorari denied 348 U.S. 952).
MARION MILLS (DIVISION OF MUNSINGWEAR, INC.) 85
She signed a union card on July 7, 1957. Other than this, the record is barren
of any further union activities on her part.
Like so many others who worked on the bloomer line, she, too, was called into
Nelson's office and interviewed by him regarding the Union. She testified that she
could recall very little of what occurred during the interview except that Nelson
said ". . . wanted us girls that was off to come in and vote" in the coming election.
That her work was above average is evidenced by her credible testimony that
Nelson said to her at the time she signed her final separation notice ". .. that he
liked my work."
Concluding Findings as to Akers
Akers, like Sandlin, Morrow, and Stephens, was given a final separation notice at
the time she was laid off. In the circumstances, the Trial Examiner will recom-
mend that she likewise be placed on a preferential hiring list for the same reasons
set forth above in the case of Sandlin, Morrow, and Stephens.
5. Autie Franks, Florence Humbers, and Adell May
All of the above were named in paragraph 6 of the complaint in Case No.
10-CA-3008 as having been discriminatorily terminated on or about August 8,
1957, because of their membership in, and activities on behalf of, the Union and
because they engaged in concerted activities with other employees for the purpose
of collective bargaining and other mutual aid and protection. All were employed
on the bloomer line. At the time the bloomer line was closed on or about August 8,
1957, they, too, were given final separation notices.
None of the above appeared and testified at the hearing herein and no showing
or reason was advanced by the General Counsel as regarding their failure to do so.
Nevertheless, the Trial Examiner is convinced and finds that since they were
given final separation notices by the Respondent when their jobs were terminated,
they, too, are entitled to the same remedy as recommended for Sandlin, Morrow,
Stephens, and Akers.
Conclusion
In the circumstances found above, the Trial Examiner will recommend herein-
after that Humbers, Franks, and May be granted the same relief as Sandlin, Morrow,
Stephens, and Akers, and for the same reasons as discussed and set forth above in
the case of Sandlin and Morrow; that is, that they, too, be placed on a preferential
hiring list 2e
D. The layoff on the shoulder strap line
1. Catherine Eads
The complaint alleges in Case No. 10-CA-3008, paragraph 7, that "on or about
August 23, 1957, Respondent laid off and terminated its employees Catherine Eads
and Willa Dean Ballard at its Guin plant," because of their membership in, and
activities on behalf of, the Union and because they engaged in concerted activities
with other employees for the purpose of collective bargaining and other mutual aid
and protection.
Eads was hired by the Respondent on February 3, 1953. She first worked as a
side seamer for 2 years; then as a single needle operator for 1 year; and from that
job she was transferred to the shoulder strap line where she worked until she was
laid off on August 13, 1957.
According to Eads' credible testimony, she worked on shoulder straps for ladies'
slips for approximately 8 months. From what the Trial Examiner gleans from the
record, this operation was started at the Guin plant sometime in January 1957.
At the time the line was opened, the Respondent sent a man to the plant from
Minneapolis to instruct the employees on the line how to operate the machines that
were to be used in making the straps. He was there about a week. There were
three employees on the line, Eads, Willa Dean Ballard, and Imogene Cannon.
The line was closed on August 23, 1957, at which time all of the above-named
employees were laid off and given final separation notices.
20 Since the record shows that I3umbers and Franks were working for the Respondent
at the time of the hearing herein, the Trial Examiner will nevertheless recommend in
"The Remedy" that they, too, be given a regular layoff slip to replace the final separa-
tion notice given them on or about August 8, 1957, so that their employment records with
the Respondent be clarified to that extent.
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eads signed a union authorization card in April 1957. Thereafter, she took an
active part in union affairs. She was a member of the committee, and her name
appears on the leaflet that has been set forth herein above. As indicated above, the
purpose of the leaflet was to publicize a union meeting at Boston, Alabama, on
July 31, 1957. She, along with other members of the committee, passed out the
leaflets outside the plant after working hours on the day of the scheduled meet-
ing. In addition to the above, she was a regular attendant at union meetings and
participated in the parade on Saturday, August 3, 1957. The parade has been
referred to and discussed above. As a matter of fact, the Trial Examiner's resume
of the parade was taken from Eads' testimony.
Eads was also present at the meeting called by Nelson in the cafeteria on July 16,
1957, the day after the committee met with him, which has been thoroughly dis-
cussed above. Her testimony regarding the meeting was to the effect that in the
course of the meeting, Nelson told those present that ". . . he couldn't help us
from wanting a union, but there was one thing sure, we'd better not talk union in
the building, or he would fire us and ask us questions later." There were around
20 employees at the meeting, many of whom were members of the union committee.
She, like many other employees, was privately interviewed by Nelson in his office
regarding her union activities.21 A resume of her testimony follows:
According to Eads, the shoulder strap machines were moved to a new location
in the plant on August 5, 1957. The location was near Nelson's office.
As the Trial Examiner sees it, they were moved to the new location in prepara-
tion for their removal to Minneapolis, Minnesota, after the shoulder strap line was
shut down on August 23, 1957.
The Respondent's position regarding the closing of the shoulder strap line and
moving it to Department No. 521 in Minneapolis is the same as it advanced in the
closing of the bloomer line which has been discussed above in that section of this
report dealing with the alleged discriminating discharges of Sandlin and Morrow.
Sembla's testimony is pertinent and to the point. ' An excerpt therefrom follows:
Q. Now, there has been some testimony about the middle of August a strap
line I believe composed of three jobs was transferred to Minneapolis.
A. That is correct.
Q. Would you tell us about that?
A. Well, the strap line was in the same classification as the bloomer line.
Now, in order to understand this thing you have to realize that a great deal of
men's merchandise was removed from department 521, as shown by this time-
table, Exhibit 13, and as a result of moving the men's items out of the depart-
ment, the Minneapolis women's department, it left it pretty small. Now, we
also have to operate at a profit, and we have overhead and that to absorb.
And we formerly manufactured both the bloomer line-or the bloomers and
the shoulder straps in this same department. So we returned them to their
original department.
Q. Now, did you have any similar or related function in Minneapolis that
assisted in any way in having the strap line in Minneapolis?
A. Well, the manufacturer of the straps in Minneapolis was beneficial be-
cause we do have our design studio in Minneapolis, and we make up a number
of garments there. And we made up a small-or used to make some special
garments. That worked very well to have your strap unit right there in the
plant. Otherwise, you would be forced to make them by hand.
Q. As I understand, this strap unit was a compact and complete unit?
A. Yes; that's right.
His testimony went into the record without objection from any of the parties.
Sembla further testified in substance that by having the special machines back in
Minneapolis "It assisted our operation through our design of the garments so that
we were able to eliminate hard work and make them on the machines"; and thus
lower the cost of the garments. As the Trial Examiner understands it, the transfer
of the shoulder strap and the bloomer lines was part and parcel of the plan sub-
mitted by the consultants hired by the Respondent in 1956. This plan as in-
dicated above, is set forth in Respondent's Exhibit No. 13 which was identified by
the witness Sembla, and admitted in evidence by the Trial Examiner without objec-
tion from any of the parties.
Sembla further testified that he alone was responsible for the setting of the date
for the transfer of the shoulder strap line from Guin to Department 521, Minne-
21 See supra.
MARION MILLS (DIVISION OF MUNSINGWEAR, INC.) 87
apolis, Minnesota, and that Nelson was neither consulted nor advised as to when
the transfer was to be made.
Nelson denied Eads' testimony to the effect that he told her that it would be
foolish for the Company ". . . to stay down here and operate when they could get
their labor done up there or up North cheaper.. . ." However, he did testify that
in several conversations with the employees where the question came up about
the moving of the plant if the Union "came" in, that his answer to their queries
. . was I felt in my own mind that if the Union came into the plant and caused
as much disturbance and additional cost of operation as I had observed in other
plants that I couldn't see how the Company could afford to operate."
Eads impressed the Trial Examiner as an honest and forthright witness. Nelson
did not for reasons heretofore stated above. In the circumstances, the Trial Ex-
aminer credits Eads' testimony and discredits Nelson's denial thereof.
As the Trial Examiner interprets the record, Eads was a satisfactory employee
throughout her entire tenure of employment with the Respondent.
Concluding Findings
Here, as in the case of the closing of the bloomer line, the Trial Examiner is
faced with the question of what was the Respondent's motivation for the closing of
the shoulder strap line at its Guin, Alabama, plant and transporting its machinery
and all to Department 521, in its Minneapolis, Minnesota, plant. The answer is a
difficult one, particularly so because of the host of uncontradicted, undenied, and
credible testimony in the record regarding violations of Section 8 (a) (1) of the Act.
But answered it must be in the light of the record considered as a whole.
In the considered opinion of the Trial Examiner, the answer to the question lies
in the testimony of Sembla, and his identification of Respondent's Exhibit No. 13.
It must be remembered that his testimony was unchallenged in any' respect. More-
over, the record contains no evidence rebutting an iota of his testimony. But most
significant of all is the fact that Respondent's Exhibit No. 13, which is set forth
hereinabove, was received in evidence without objection from any party. Of further
significance is the fact that Sembla was not subjected to voir dire examination by
the General Counsel regarding the authenticity of the instrument in question. In
the circumstances, the Trial Examiner concludes and finds that the layoff and/or
termination of employment of Catherine Eads was economic in origin and not
motivated by her membership in, and activities on behalf of, the Union. Conse-
quently, he will recommend below that the allegation in the complaint that the
Respondent's action as to her was violative of Section 8(a)(3) of the Act be
dismissed.
There yet remains the allegation in the complaint that her termination and/or
discharge was also violative of Section 8(a) (1) of the Act. Here, we have exactly
the same situation as we did above in the case of the layoff of the girls on the
bloomer line. Eads as well as the other girls who worked on the shoulder strap
line was given a final separation notice when the line was closed. The Trial
Examiner has found above that Eads was one of the most active union adherents
in the plant. He has also found that she not only was a longtime employee of the
Respondent, but that her record as such was outstanding. Then why was she given
a final separation notice? In the considered opinion of the Trial Examiner, the
motivation for the Respondent's conduct was precisely the same as he has found
above regarding the girls on the bloomer line, which was to the effect that by such
a notice, other employees were thereby warned to think it over before joining the
Union. The Trial Examiner's reasoning has been set forth above in that section of
this report dealing with termination and/or discharge of Evelyn K. Sandlin and
Willie D. Morrow and will not be reiterated here.
In the circumstances and for the same reasons as set forth and discussed above,
the Trial Examiner finds that by serving upon Catherine Eads a final separation
notice at the time the shoulder strap line was discontinued, the Respondent violated
Section 8(a) (1) of the Act.
Now as to the Trial Examiner's findings regarding Eads' credible testimony con-
cerning antiunion statements made to her personally by Nelson. The Trial Examiner
will not discuss them at length here but will do so below in his summation of his
overall findings and conclusions of the 8 (a) (1) allegations in the complaint.
In view of all of the foregoing, the Trial Examiner will recommend below that
the Respondent place Catherine Eads on a preferential hiring list in accordance with
the provisions set forth in that section of this report entitled "The Remedy." 22
22 See supra, in re Evelyn K. Sandlin and Willie D. Morrow.
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Willa Dean Ballard
Ballard neither appeared nor testified at the hearing herein. Nor was any reason
advanced by the General Counsel for her failure to do so. Nevertheless, in view
of the fact that she likewise was given a final separation notice, by the Respondent
when her job was terminated, she is likewise entitled to the same remedy as
Catherine Eads, and it will be so recommended below. It will also be recom-
mended that the 8(a)(3) allegation in the complaint as to Ballard be dismissed for
the same reasons set forth above in the case of Eads.
E. The layoff of employees on the No. 5909 slip and other lines
Paragraph 8 of the complaint in Case No. 10-CA-3008 alleges that on or about
August 8, 1957, Respondent terminated the employment of its following named
employees at its Guin plant:
Willie Helen Berryhill Imogene Pugh
Christine Clark Willamae Roberts
Myrtle Moore Evie Warren
Joyce Parr
At the close of his case-in-chief, the General Counsel moved to delete the names
of Myrtle Moore and Imogene Pugh from the above-quoted paragraph of the com-
plaint. The motion was granted by the Trial Examiner.
Of the above-named employees, the following testified at the hearing herein,
Willie Helen Berryhill, Christine Clark, Joyce Parr, Willamae Roberts, and Evie
Warren.
1. Willie Helen Berryhill
Mrs. Berryhill was first employed by the Respondent at its Guin, Alabama, plant
sometime in the early part of 1953, as a seamer. She worked as such for about
3 months and "took a pregnancy leave." She did not return to work until sometime
in the early part of 1955, and worked for about 6 months. At about this time, her
little boy became ill with the whooping cough and she again laid off until sometime
in 1956. The record is none too clear as to just what jobs she worked on after she
returned to work in 1956, as the following excerpt from her testimony indicates,
"Well, I seamed and zigzagged and straightened, straight needle, and sew bottom
trim with-I don't know what kind of a machine, but it was a new one." She
eventually was assigned to work on No. 5909 slips where she was employed at the
time she was given her final separation notice on August 8, 1957.
Berryhill was an active supporter of the Union. As a matter of fact, the record
shows that she came from a "union family." She lived at Brilliant or Boston,
Alabama, and her father was a longtime member of the United Mine Workers.
She signed a union card around the first of June 1957, and thereafter actively and
publicly participated in union affairs. She was a member of the union committee
that called upon Nelson on the morning of July 15, 1957. Her account of what
transpired at that time corroborates the testimony of Sandlin and others which has
been set forth above. That is, that Nelson told the committee that they "couldn't"
organize the plant on company time and/or property.
Berryhill was also one of the employees who met with Nelson in the cafeteria on
July 16, 1957. Her version of what transpired on this occasion was to the effect
that there were about 18 or 20 employees present and that Nelson told them,
. that we couldn't have any cards signed on company property, and if we were
caught talking about the union, that we would be fired immediately."
Nelson's version of what transpired at the above meeting has been discussed
above. As the Trial Examiner sees it, there is little variance between Berryhill's
testimony and that of others who were present at the meeting. In the circum-
stances, the Trial Examiner credits Berryhill's version since he is convinced that it
was her best recollection of an incident that occurred almost a year before she
testified at the hearing herein.
Berryhill, like Sandlin and others mentioned above, was also privately inter-
viewed in Nelson's office sometime in the latter part of July 1957. Her testimony
is interesting and important; for this reason the Trial Examiner feels that an excerpt
therefrom should be set forth below:
Q. Did Mr. Nelson at any time have a conversation with you relative to the
union?
A. Yes; he did.
Q. Can you recall about when this happened?
A. Well, it was about the last of June, or July.
MARION MILLS (DIVISION OF MUNSINGWEAR, INC.) 89
Q. Please tell what happened?
A. Well, he told the teachers to tell us to come in one by one . And when
one girl would come out , she would tell the girl seated next to her to come in.
And I was about the fourth or fifth girl to go in.
And he said it was just a friendly chat, that he would like to get back in
closer to the girls and find out what was wrong and why we wanted the union.
And I told him because I thought it was better to have a union , we'd have
better management , and more pay , and just make everything better on him and
us too.
Q. Go on.
A. And he asked me didn 't I know that if the union came in that they
would take the plant away from Guin , and he asked me just why I was for
it. And I told him I was raised around where there was union all my life, and
my daddy was union , belonged to a union , and that they had done them good
by paying a dollar, starting off a dollar and up to twenty -five and more, and
I'm sure it would help us. And we talked for a while, but I can't recall
all of it.
But when I started to leave, he said , "Well, what do you still think about it?"
And I said, "I 'm still for the union."
Berryhill was laid off along with other girls on the No. 5909 slip line on or about
August 5 , 1957. According to her credible testimony , she had been working on
the slip line for about a month. Her particular job at the time she was laid off was
"seaming in the bust section."
The events leading up to her layoff are best told in her own words:
Q. Would you tell me what happened on the last day of your employment,
please?
A. Well, we had plenty of work until about noon , I guess, and there was a
service girl who would bring a bundle. Everytime we would need one, she
would go get one. And just about 30 minutes , I guess, before quitting time,
this teacher came to me and told me that I should go by the office and sign
a layoff slip . And Miss Hazel Parks, the supervisor I guess over the other
girls, told me if I go by and sign it I'd draw my unemployment , but she would
probably call me back in a few days.
TRIAL EXAMINER : That's when you were laid off?
The WITNESS : That's right.
TRIAL EXAMINER : And establish who she was again?
The WITNESS: She was over the other teachers , Hazel Parks, I presume.
TRIAL EXAMINER : Is she the person who told you that?
The WITNESS: Yes.
Q. (By Mr. Lipsitz .) You left the plant then that day, August 5th?
A. Yes.
Berryhill had been laid off before and on those occasions she was given a regular
layoff slip, which the Respondent customarily gave laid-off employees . This par-
ticular form has been thoroughly discussed above, particularly regarding the girls
who were laid off when the bloomer line closed down . For that reason, he
sees no necessity in reiterating it here. Suffice it to say that Berryhill expected
such a form when she was laid off on August 5, 1957 . This is evidenced by the
remarks her teacher made to her at the time she was laid off. However, such
was not the case in this instance as will be shown below.
According to Nelson, he called the Respondent 's attorney , Frank Constangy, in
Atlanta, Georgia , on or about August 6, 1957 , and discussed with him the type of
layoff form to be given the employees who were then or were about to be laid off
in the Guin plant. As a result of this conversation, Nelson sent Berryhill the follow-
ing letter:
MARION MILLS
Division of Munsingwear, Inc.
GUIN, ALABAMA
August 8, 1957
Mrs. WILLIE HELEN BERRYHILL
Brilliant, Ala.
DEAR WILLIE, Due to curtailed manufacturing operations in our plant I fore-
see no likelihood of your future re-employment . Therefore , I wish to so in-
form you at this time so that you may be able to seek employment elsewhere.
Your separation as of this date has been recorded as due to the discontinuation
of your job.
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I regret the loss of work from our plant which has made this action neces-
sary and wish you the best of luck in finding other work. Should you desire a
letter of recommendation from me I will be happy to cooperate.
Sincerely,
AN:ni
ARTHUR M. NELSON,
Plant Manager.
Similar letters were also sent to Christine Clark, Joyce Parr, Evie Warren, and
Willamae Roberts.
On or about August 8, 1957, Berryhill received a final separation notice from the
Respondent. The significance of this notice has been thoroughly discussed above in
the case of Cantrell, Sandlin, and Morrow and will not be reiterated here. Suffice it
to say that what it actually meant was that the Respondent was through with her.
At the time of the hearing herein, Berryhill was employed at "Carl Lee's
Trousers" in Brilliant, Alabama.
The Respondent's position regarding the layoff of the girls on the No. 5909 slip
line follows.
In the main, its position is about the same as it advanced in the case of the
closing of the bloomer line and the shoulder shop line, which have been thoroughly
discussed and disposed of above.
After careful consideration of the entire record in the case, the Trial Examiner
is convinced that his concluding findings in this particular section of the report
should be made after he has set forth his findings of the individuals named in the
complaint since his ultimate findings and conclusions will be predicated upon the
testimony of the individuals named in the complaint, Berryhill, Clark, Parr, Roberts,
and Warren, considered in the light of the record as a whole.
2. Christine Clark
Clark was first employed by the Respondent in January 1956, and was laid off on
June 18, 1957. At the time of her layoff, she was ". . . bar packing on the panty
line." At the time she was laid off, she was told by her teacher, Willie Atkinson,
that she was being laid off for lack of work and that she would be notified when to
report back to work. At the time she was laid off, she signed the regular layoff
slip which as indicated above, was the Respondent's custom in such cases. In
other words, an employee could expect to be recalled by the Respondent when work
was available. This particular form was kept on file in Respondent's office and
contained thereon ways and means of getting in touch with the employees when
work was available. She remained in the status of a laid-off employee until
August 8, 1957, when she received a letter from Nelson informing her that she was
permanently laid off. At the same time, she received a final separation notice. The
letter from Nelson is couched in identical language with that which Berryhill re-
ceived. Since that letter has been set forth above, the Trial Examiner sees no
necessity of inserting it here. Suffice it to say that the letter was in accordance
with the instructions Nelson received from the Respondent's attorneys in the tele-
phone conversation with them which has been discussed above in that section of
this report concerned with Willie Helen Berryhill.
The record shows that Clark was an active union adherent, both before and
after her layoff on June 18, 1957. She was one of the first employees of the
Respondent to sign a union card, having done so in March 1957, at about the time
the Union started its organizational drive amongst the employees at the Guin plant.
She was a member of the union committee and her name appears on the handbill
that was passed out to the employees on July 31, 1957. The handbill in question
has been thoroughly discussed and set forth in toto above. She was with the com-
mittee when it called upon Nelson on the morning of July 15, 1957, even though
she was on a layoff status. Her account of what transpired at that time is about
the same as others who attended the meeting. Her recollection was that Nelson
told the group that ". . . there wasn't going to be no organizing in the plant. .
In addition to the foregoing, she attended union meetings and participated in the
parade on August 3, 1957.
There is no evidence in the record that Clark ever returned to the Respondent's
office after she was laid off on June 18, 1957.
Final disposition of the case as to Clark will be set forth below.
3. Joyce Nell Parr
Joyce Parr was first hired by the Respondent sometime in 1955, as a side seamer.
She worked for about 2 weeks as such and was laid off. She was recalled about
MARION MILLS (DIVISION OF MUNSINGWEAR, INC.) 91
2 weeks later and continued to work as a folder, or as she put it, "laid up lace," at
the cutting table up until August 8, 1957. During this period of her employment,
she was laid off on several occasions and recalled when work was available. Each
time she was laid off, she signed a regular layoff slip, which contained her name,
address, and information as to how the Respondent could get in touch with her in
the event that it desired to recall her to work. Usually one of the girls who rode in
the same car pool with her would come around and tell her when to report to work.
She, as well as the other employees named above in this section of the report, was
laid off on August 8, 1957, and thereafter received a final separation notice, and a
letter from Nelson, identical with that received by Willie Helen Berryhill which
has been set forth above.
Parr testified that at the time she was laid off, there were about 20 employees
working in the cutting department and that their supervisor was Mrs. Netta Pugh.
She further testified that on the day she was laid off, August 8, 1957, she had a con-
versation with Nelson. An excerpt from her testimony follows:
Q. Go on and tell me what happened, if anything, that day?
A. He just told me that he didn't have any more work for me, and that he
knew that I'd been laid off a lot but it was because that I was the youngest hand
on the folding line.
Q. Speak a little louder, please, Miss Parr. Go ahead, and start all over
again, and tell what happened that day?
A. He told me that he would have to lay me off because he did not have
any more work for me, and that he knew I'd been laid off a lot. It was be-
cause that I was the youngest hand on the folding line, and he thought I
understood that.
Q. Go on.
A. And he told me that the reason we did not have any work was because
the company had sent thousands of orders up to Hamilton and that-
Q. What do you mean by sent thousands of orders to Hamilton?
A. There is a plant in Hamilton.
Q. Operated by the same company that operates Marion Mills?
A. Yes. And that he would call me back just as quick as he could.
Q. And was there anything else said that you can recall?
A. Not that I can recall.
Nelson denied that he made the above statements to Parr, and in addition testi-
fied that he could not recall having had any conversation with Parr about the Union.
He particularly denied saying that "thousands of orders" had been sent over to
Hamilton. After careful consideration, the Trial Examiner credits Parr's testimony
to this extent. He finds that she and Nelson had a conversation and that in the
course thereof, Nelson did tell her in substance that orders that ordinarily would
have been processed in the Guin plant were now being handled at the Hamilton
plant. Though the Trial Examiner is convinced that Parr misinterpreted Nelson's
statement, nevertheless, he is convinced that he did bring up the transfer of orders
to Hamilton for the simple reason that such was the fact, and is so evidenced by the
testimony of both Nelson and Sembla on direct examination in the Respondent's
case-in-chief.
Parr signed a union card sometime in May 1957. Though not a member of the
union committee that called upon Nelson on the morning of July 15, 1957, she did
go into the plant when they did and stood in the back and heard what was said.
According to Parr's credible testimony, Netta Pugh, her supervisor, came by and
asked her about the meeting. She told her it was the union committee. In the
conversation that followed, Pugh asked her if she had signed a union card. She
told her that she had not. Pugh said she didn't think she had and went on to say
that she ". . . thought if the Union came into the plant that the plant would
move . up north."
As indicated above, Parr was laid off on August 8, 1957, and shortly thereafter
received a final separation notice from the Respondent. Thus, despite the re-
assuring words of Nelson that she would be recalled to work, she received the above
notice, which as indicated above, meant that the Respondent was through with her,
and never intended to recall her to work.
At the time of the hearing Parr was working in a 5 & 10 store in Winfield,
Alabama.
Concluding findings as to Parr and the others named in this section of this report
will follow below.
4. Willamae Roberts
Willamae Roberts was first employed by the Respondent on December 19, 1955.
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
She first worked as a lay-up assembly girl in the cutting department, and con-
tinued on this job until May 30, 1956. On that date, she took pregnant leave until
sometime in September 1956. She worked steadily thereafter until October 30,
1956, when she was laid off until she was recalled about 2 weeks before Christmas.
She then worked until March 7, 1957, and was again laid off until May 4, 1957.
On that date she received a letter from the Respondent regarding her Blue Cross
Insurance program. She went to the plant to see Nelson about her insurance. In
the course of their conversation, Nelson asked her if she would like to come back
to work. She told him yes. As a result she went back to work the next day,
May 5, 1957, on the ". . . cotton panty lay-up machine, where she worked steadily
until August 5, 1957." On that date she was transferred over to the No. 5909 slip
line where she worked for 3 days.
On August 7, 1957, at about 3:15 p.m., Netta Pugh, her supervisor, came to her
working place and handed her a paper to sign. Pugh told her that she was being
laid off for lack of work, and would not be called back ". . until work picked
up." Shortly thereafter on or about August 8, 1957, she, like Berryhill and the
other girls named in this section of the report, received a final separation notice
from the Respondent. The notice was accompanied by a personal letter from
Nelson identical with that sent Berryhill, which has been set forth herein above.
The significance of a final separation notice has been thoroughly discussed above,
and will not be reiterated at this time.
Roberts joined the Union around June 1, 1957, and thereafter took an active
interest in its organizational efforts. She attended union meetings, and participated
in the parade on August 3, 1957.
Though not a member of the union committee, she did accompany it when it
called on Nelson on the morning of July 15, 1957. Her account of what transpired
at that time was about the same as that of other witnesses whose testimony has
been commented on above. She also attended the meeting in the cafeteria on
July 16, 1957. Her credible testimony was as follows:
Q. What, if anything, occurred the next day, on July 16, 1957?
A. Yes, sir. After we went in to work, why, he called us-some of the girls
in the office, and talked-not in the office but in the cafeteria, and talked to
them.
Q. And what was said there in the cafeteria?
A. He told us if he caught any of us girls talking union he would fire us
immediately.
Q. About how many girls were in this group?
A. Oh, about 15 or 20.
As indicated above, Roberts participated in the parade on Saturday, August 3,
1957. The parade consisting of several automobiles containing union members has
been described and discussed above. When she reported for work Monday,
August 5, 1957, Nelson called her into his office for a private interview. What
transpired at that time is best told in her own words. An excerpt from her testi-
mony follows:
Q. Please relate what, if anything, occurred on August 5, 1957?
A. Well, after I went in to work, it was around nine o'clock Netta Pugh-
Q. Speak up loud, please real loud.
A. After I went in to work, Netta Pugh came back,-It was around nine
o'clock,-and told me that Mr. Nelson wanted to see me in his office. So I
just left work and went into the office where he was at, and only him and I
were in there.
Q. Continue, please.
A. He said, "Now, Willamae, I know that you are for the union because I
saw you pass Saturday in one of the cars that were in the union parade." And
he said, "Since I saw you, the facts can't be denied."
TRIAL EXAMINER: I can't get that.
Mr. LIPSITZ: "Since I saw you, the facts can't be denied."
TRIAL EXAMINER: You got that, Mr. Reporter?
The REPORTER: (Nodding affirmatively.)
TRIAL EXAMINER: Go ahead, ma'am . See, we all have to hear things. I'm
sorry I interrupted.
The WITNESS: Oh.
He then asked me what we girls expected to gain from the union, that we
get everything that they was promising except six holiday pay and that-the
sixth holiday pay, and that was Memorial Day, and that it was his own fault
because of that for the first year that he was down here he closed the shop
MARION MILLS (DIVISION OF MUNSINGWEAR, INC.) 93
and the businessmen in Guin laughed at him. And since that day he hadn't
closed the shop on Memorial Day. And then he asked me if I had ever be-
longed to a union, and I told him Yes I had. And he asked me if we were
ever out on any strikes, and I told him Yes, and when we came out that we
usually stayed out until we got what we wanted before we went back to work.
And he said then he was a foreman once in Minneapolis and in a union shop,
and that there was a committee that came around once a month to pick up
the grievances. And one month when he only had two grievances that the
union committee pitched a fit. And he said, "Willamae, I hope that you change
your mind about the union because if the shop goes union it will absolutely
close down and go back North because that the company does not want to
operate under a union shop here in Guin, because it would save $86,000 a
year cutting expense from up there down here."
And I then asked him why some of the girls were acting toward me like they
were in the cutting department, why they had stopped speaking to me. And
he said, "Willamae, your question is very easy. Those girls have suspected
you are for the union and they are against it."
He then handed me a clipping out of the newspaper that was about two union
officials that had built fine homes out of union funds. And he asked me was
that what I would like to have done with mine, and I told him No.
Q. And can you recall whether anything else was said?
A. Not at the present.
The above testimony of Roberts stands uncontradicted and undenied in the record
and is fully credited by the Trial Examiner.
According to Roberts, she and Netta Pugh, her supervisor, had several conversa-
tions about the Union before she was given her final separation notice on August
8, 1957. One of their conversations concerned a union meeting that Roberts
attended over at Boston, Alabama. According to her uncontradicted and credible
testimony, Pugh came to her the next day and said " . you went to this meeting
down here,23 and I heard that you went to that one at Boston last night. What did
they do? . .. ' She told Pugh in substance, that if she wanted to know what went
on at union meetings she should go to them herself and find out because she was
not "toting any,tales."
On another occasion, shortly before Roberts was laid off, Pugh said to her that
she did not see what ". . . we girls expected to gain from the Union that we had
everything they was promising." Shortly after that conversation, she had another
one with Pugh and two other girls, Eugene Mobley and Gladys Smith. Roberts'
account of the conversation was Ito the effect that if she wanted to keep her job, she
had better go into the office and have her name taken off the list of known union
adherents which the Respondent kept in the office. Pugh, who was acting as spokes-
man for the group, went on and told Roberts that ". . . if the Union comes in here,
the plant will absolutely close down and go back north, because we girls here in
Guin are not going to stand for any union and also lose our jobs."
As indicated above, Roberts' testimony regarding her conversations with Supervisor
Netta Pugh stand uncontradicted and undenied in the record. Pugh did not testify at
the hearing herein. Nor was any showing made by any of the parties that she was
unavailable as a witness. In the circumstances the Trial Examiner credits Roberts'
testimony.
The Respondent's position as to Roberts is practically the same as it took in the
case of Berryhill, Clark, and Parr, which as indicated above, was that the layoff of
the employees was for economic reasons. That is, that work was slack at the Guin
plant and it was necessary to lay off certain of the employees. The Trial Examiner
will discuss in detail below all facets of the Respondent's defense.
5. Evie Warren
Evie Warren was first employed by the Respondent in January 1955, as a folder
on the "panty line." She worked at this job until sometime in June 1955, when she
quit and took a job near her home in Boston, Alabama. Sometime in January 1957,
she quit her job in Boston and went back to work for the Respondent. She was put
back on her old job as a folder on the "panty line," where she worked until June 18,
21 The record indicates that at about this time, the Respondent held a meeting of
some kind in the National Guard Armory in Guin.
Pugh also was referring to a union meeting held at the Miners Hall in Boston,
Alabama. Boston is about 15 miles across country from Guin, and is also in Marion
County, Alabama.
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1957, when she was laid off for lack of work. At the time she was laid off, her
teacher, Willie Mae Atkinson told her "... I'm going to lay you off until this
union mess is settled." Warren's testimony stands uncontradicted and undenied in
the record. Moreover, she impressed the Trial Examiner as an honest and forthright
witness. In the circumstances, the Trial Examiner fully credits her testimony. The
status of Atkinson as a teacher, and others similarly employed by the Respondent,
has been thoroughly discussed above, and will not be reiterated here. Suffice it to
say that for the reasons stated above, the Trial Examiner finds that Atkinson was
an "instrumentality" of the Respondent in its campaign against the unionization of its
employees and hence responsible for her conduct.
At the time Warren was laid off, she was given the regular layoff slip which has
been discussed and described above. In other words, she was still an "employee"
on a "layoff" status, and as such she normally could have expected to be recalled
to work when it was available. That this was the Respondent's policy, at least prior
to the numerous episodes in August 1957, is so well established in the record that
the Trial Examiner sees no necessity for extensive comment herein, at this stage of
the report.
The record clearly shows that Warren was an active union adherent both before
and after her layoff on June 18, 1957. She joined the Union April 8, 1957. There-
after, she attended all union meetings; participated in the parade on August 3, 1957;
and was on the union committee, but was not present when it called upon Nelson
on the morning of July 15, 1957.
That the Respondent was well aware of her union activities is evidenced by:
(1) her name appearing on the handbill set forth above in the resume of Sandlin's
testimony; and (2) by the remarks of Atkinson to her at the time she was laid off
on June 18, 1957.
Warren went back to the plant sometime in December 1957 and asked Nelson for
a job, but was not rehired.
The Respondent's position as to Warren is practically the same as it advanced for
the other employees who were laid off at about the same time she was.
Concluding Findings as to Employees Named in Paragraph 8, Case No. 1O-CA-3008
As the Trial Examiner sees it, the Respondent's primary defense to the layoffs
on or about August 8, 1957, of Berryhill, Clark, Parr, Roberts, and Warren is two-
fold: (1) the reorganization plan adopted by the board of directors in April 1957,
necessitated the removal of certain lines from the Hamilton plant to Minneapolis,
and that other lines of necessity had to be moved into the Hamilton plant to take
their place; and (2) economic conditions were likewise an important factor in the
layoffs at the Guin plant beginning in August 1957.
Let us first look at the effect of the reorganization plan upon the employment
situation at the Guin plant. The Trial Examiner has found above that the evidence
adduced by the Respondent both oral and documentary sustained its position regard-
ing the closing of the bloomer line and the shoulder strap line. An examination of the
organizational plan as shown on Respondent's Exhibit No. 13 shows that no provision
was made for the transfer of No. 5909 slips from any of its plant. In fact, Sembla
tacitly admitted this in his testimony on direct examination. The record also reveals
that slip No. 5909 is a standard product and was made and could be made without
any material changes in equipment at several of its plants. From what the Trial
Examiner gleans from the record, there was nothing so complicated about its manu-
facturing process that required specially trained operators. At times material herein
up until around August 7, 1957, there were some 15 or 20 employees working on
this slip in the Guin plant. The supervisor in charge was Netta Pugh.
In the considered opinion of the Trial Examiner, some of the most important
testimony in the record of what was behind the Respondent's removal of the
No. 5909 slip line from Guin to Hamilton is found in the testimony of Sembla
himself. He testified to the effect that the transfer of the No. 5909 slip from Guin to
Hamilton was for the following reasons, ". . . The removal of the men's merchan-
dise, men's production from the Hamilton to Minneapolis, as mentioned, the men's
nylon pajamas and the men's nylon shorts necessitated a replacement." From this
testimony, the Trial Examiner infers that the Respondent contends that it was for
this reason that the manufacture of the No. 5909 slip was discontinued at Guin and
moved over to Hamilton, 14 miles away as a "replacement" and thus provide jobs
for the Hamilton employees who were idled by the removal of the items of men's
garments to other plants as set forth in the reorganization plan. What happened to
the employees who were automatically laid off at Guin seems not to have concerned
the Respondent at all. Here then, in the considered opinion of the Trial Examiner,
MARION MILLS (DIVISION OF MUNSINGWEAR, INC.) 95
lies the answer to the perplexing question before us. It must be borne in mind
that the Hamilton plant was nonunion, and there is no evidence in the record that
the employees in that plant had attempted to engage in concerted activities.
That the transfer of the No. 5909 slip to the Hamilton plant did, as Sembla
anticipated, provide a "replacement" in the Hamilton plant is shown by the testimony
of Barbara Ann Ray, an employee of the Respondent at that plant. According to
her credible and undenied testimony, she worked on the No. 5909 slip line in Hamil-
ton from the time it was moved there sometime in August 1957, up until she was put
on a layoff status; that about 12 girls were assigned to making the slip; and that for
a time they were required to work overtime to meet production requirements. The
record shows that the Respondent did not replace the No. 5909 slip with another
line of its products at its Guin plant.
That the Respondent was well aware of the union activities of Berryhill and
Roberts, both of whom worked on the No. 5909 slip line, is well established in the
record, and supporting testimony regarding this has been set forth above. It will not
be repeated here. Suffice it to say that the Trial Examiner predicates his finding
on the uncontradicted, undenied, and credible testimony of both Roberts and Berry-
hill regarding the statements made to them by Netta Pugh and Nelson.
In the circumstances found and described above, and in the light of the record
considered as a whole, the Trial Examiner is convinced and finds that the production
of the No. 5909 slip, and the resulting layoff of the employees named in the
complaint, Willie Helen Berryhill and Willamae Roberts, was for discriminatory
reasons primarily to discourage the employees in the Guin plant from exercising the
rights guaranteed them by the Act. Hence, by such conduct the Respondent inter-
fered with, restrained, and coerced its employees within the meaning of Section
8(a) (1) of the Act; and by laying off and terminating the employment of Willie
Helen Berryhill and Willamae. Roberts, because of their membership in, and activi-
ties on behalf of, the Union, and because they engaged in concerted activities with
other employees for the purpose of collective bargaining and other mutual aid and
protection, violated Section 8(a)(3) and (1) of the Act.
Compelling factors in the Trial Examiner's findings of the above have been as
follows: (1) the No. 5909 slip line was a standard line, and could have been, and
was for a long time, produced at the Guin plant; (2) its removal is not mentioned
in the reorganization plan, as evidenced in Respondent's Exhibit No. 13; (3) admit-
tedly it was closed at the Guin plant to provide a "replacement" for items moved
out of the Hamilton plant; (4) the workload at the Hamilton plant increased after
the No. 5909 slip line was transferred there and the employees working thereon
were required to work overtime to meet production requirements; (5) its closing
occurred less than 1 week after the handbill, setting forth the names of the union
committee was distributed to the employees of the Guin plant, and the parade of
union adherents by the plant which was observed by Nelson and others; (6) the
animosity of the Respondent towards the unionization efforts of the employees at
the Gain plant as expressed time and again by Nelson and others to not only
groups of employees, but by private interviews of a number of employees in which
the employees were questioned about their union sympathies and warned of the
consequences of their attitude; and finally (7) the issuing of final separation notices
to not only the above-named employees, but to others named above as well, which
in effect were notices of discharge. The Respondent's use of the final separation
notice in the layoff of a number of its employees at the time it did, when in the
past it had issued regular layoff notices to employees when they were laid off has
convinced the Trial Examiner that the real motive behind this move was to interfere
with, restrain, and coerce its employees into abandonment of any "notions" they
may have had about "unionizing" the plant. It must be remembered that the use
of the final separation notice came less than a month after Nelson was informed
by the committee of their intention to organize the plant. That its timing by the
Respondent was well calculated, is evidenced by the result of the election held
September 6, 1957.
a. Joyce Nell Parr
The Trial Examiner has set forth above his preliminary findings as to Parr.
After careful consideration, the Trial Examiner is convinced and finds that Parr,
like Berryhill and Roberts, was in effect discriminatorily discharged by the Re-
spondent for precisely the same reasons that they were on August 8, 1957. Since
the same reasoning applies to Parr as to them, he will not burden this report with
a "rehash," of his rationale. Suffice it to say that he makes the same findings.
In the circumstances found and described above, the Trial Examiner finds that
the Respondent by giving Joyce Nell Parr a final separation notice on August 8,
1957, effectively discharged her because of her membership in, and activities on
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
behalf of, the Union and because she engaged in concerted activities with other
employees for the purpose of collective bargaining and other mutual aid and
protection, and by such conduct violated Section 8 (a) (3) and (1) of the Act.
b. Christine Clark and Evie Warren
The Trial Examiner has set forth above his preliminary findings as to Clark and
Warren. In his considered opinion, both are in the same category. They were
on a layoff status from June 18, 1957. As laid-off employees, they normally
would have been called back to work when it was available. But such was not
to be the case. They, too, were given final separation notices by the Respondent
on or about August 8, 1957. By this conduct, the Respondent effectively dis-
charged them. The portent of the final separation notice in the relationship be-
tween the Respondent and its employees has been thoroughly discussed above and
will not be reiterated here.
In the circumstances found and described above, the Trial Examiner is convinced
and finds that the Respondent by giving Christine Clark and Evie Warren final
separation notices on or about August 8, 1957, effectively discharged them because
of their membership in, and activities on behalf of, the Union and because they
engaged in concerted activities with other employees for the purpose of collective
bargaining and other mutual aid and protection, and by such conduct violated Sec-
tion 8 (a) (3) and (1) of the Act.
Since both Clark and Warren were on a layoff status at the time they were dis-
charged, the Trial Examiner will recommend in that section of this report called
"The Remedy" that they be made whole for any loss of earnings they may have
suffered as a result of the Respondent's conduct from the date new employees were
hired sometime around the middle of September 1957.
6. Florene Caudle and Jo Nell Warren
Paragraph 9 of the complaint in Case No. 10-CA-3008 alleges that the Re-
spondent "... on or about August 21, 1957, . laid off and it subsequently
provided less employment to its employees, Florene Caudle and Jo Nell
Warren . . ., because of their membership in and activities on behalf of the Union,
and because they engaged in concerted activities with other employees for the pur-
pose of collective bargaining and other mutual aid and protection." The Trial
Examiner will deal separately with the above-named employees below, because he
feels that each case stands on its own. He will first dispose of the case as to
Florene Caudle.
a. Florene Caudle
Caudle was first hired by the Respondent on December 13, 1954, as a side seamer
on the slip line. She worked at this job for a few weeks and was laid off sometime
around the first of January 1955. She was off for about 6 weeks and was recalled
to work. Thereafter, she worked "pretty regularly," except for a few layoffs, or
as she put it in her testimony on direct examination, ". . . maybe a day or two every
now and then until August 21, 1957." In the interim she "got pregnant" sometime
around the middle of April 1957. She continued working, however, until August
21, 1957. What transpired at that time and thereafter follows:
Caudle testified that a few days before she was laid off on August 21, 1957,
Nelson came to her and asked her about her pregnancy and when she was "planning
on quitting." She told him she did not know, and that Nelson told her she
. had better be out by the first of the month" and walked away.
Caudle was perturbed by Nelson's remarks and she went to him and asked for
an explanation. He told her in substance that he had reference to her condition.
He finally told her to bring him a doctor's certificate and if favorable she could
work a while longer. She brought him a certificate from her doctor to the effect
that she could work until October 1, 1957. This was on August 21, 1957.
On that date, Caudle was working on various styles of slips. Her coworkers
were Elva Pugh and Willie Bannister , and their teacher was Elsie Mayo.
From what the Trial Examiner gleans from the record, Teacher Elsie Mayo
brought Caudle a bundle of No. 5800 slips late in the afternoon of August 21, 1957,
and told her "when you get this done you'll have to clock out-there's nothing else
for you to do."
Caudle testified that from that date on she received less work. Her testimony
on direct examination is important for reasons which will be apparent below. A
pertinent excerpt therefrom follows:
Q. And were you called back the next day or the following day or anything
of that?
MARION MILLS (DIVISION OF MUNSINGWEAR, INC.) 97
A. Well, I was laid off for some time, for a few weeks. I don't know just
how many.
Q. Yes.
A. And then I was called back for maybe one or two days a week, and some
weeks I got three days.
Q. For how long a period of time was that that you would be called back
for just one or two days a week?
A. About three or four weeks, just before I take my pregnancy leave.
Q. And when did you take your pregnancy leave?
A. November 15, 1957.
At the time Caudle was laid off, there remained two other employees who were
doing similar work, Elva Pugh and Willie Bannister. The record shows that both
were kept on the job.
The General Counsel contends that either Pugh or Bannister should have been
laid off and Caudle retained, and that the reason she was not was because of her
membership in, and activities on behalf of, the Union.
On the other hand, the Respondent contends that work was slack right at this par-
ticular time and that it was necessary to lay off one of these employees named above;
that Pugh was assigned to and was working on a special order; that Bannister had
more seniority than Caudle, and that this was the determining factor in selecting
Caudle for the layoff.
The record clearly shows that the Respondent's policy at times material herein was
that when a layoff occurred, say for example on the panty line, and at the time there
was work on one of the slip lines that there was no "bumping from line to line," but
that if there was a layoff on a particular line, then the employees with the least
seniority were selected for layoff. In the considered opinion of the Trial Examiner
this was a fair and reasonable policy. The mere fact that one of the selected em-
ployees was a union member is beside the point, since there is nothing in the Act that
gives a member or supporter of a union super seniority rights.
The Respondent also contends that Caudle was not given less work than other em-
ployees after she was laid off on August 21, 1957. In support of its contention, it
properly identified, by its witness Nelson, a chart showing the work records of a
number of employees during the period from August 21 to October 6, 1957. The
chart is well captioned "Random Selection of Employees" and the number of hours
worked by them in the weeks shown thereon. This document was admitted in evi-
dence as Respondent's Exhibit No. 19, subject to check against the original records
in the Respondent's custody by the General Counsel and counsel for the Union. No
objections were then or have been made since the close of the hearing to its admission
in evidence. In the circumstances, the Trial Examiner shall consider it in the light
of the record considered as a whole.
Let us first go back and look at the excerpt from Caudle's testimony that has been
set forth above. Here we find that she testified that after she was laid off on
August 21, 1957, she only got one or "two days a week and some weeks I got three
days." Respondent's Exhibit No. 19 tells a different story. Here it is.
Florence Caudle-Respondent's Ex. #19
Hours
1957 Worked
Aug. 25------------------------- 19
Sept. 1-------------------------- 40
Sept. 8-------------------------- 24
Sept. 15------------------------- 32
Sept. 22------------------------- 16
Sept. 29------------------------- 40
Oct. 6-------------------------- 40
From the foregoing, it is obvious that the Respondent's records belie the testimony
of Caudle on direct examination as to the number of hours she worked during the
period in question.
Caudle took her pregnancy leave on November 15, 1957, and returned to work on
March 20, 1958. She was still working for the Respondent at the time of the hearing
herein.
The record clearly shows that Caudle was active on behalf of the Union. She
signed a union card on June 3, 1957, and thereafter participated in many activities.
She was a member of the union committee, and her name appears on the handbill
525543-60-vol. 124-8
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that was distributed amongst the employees on July 31, 1957.24 As a member of the
committee she was with the group that called upon Nelson on the morning of July 15,
1957. Her account of what transpired at that time is about the same as that of
many others who attended the meeting. Their accounts have been set forth in detail
above. In the circumstances, the Trial Examiner sees no necessity of reiterating it
here.
In addition to the foregoing, she attended union meetings, wore a union button, and
carried around with her a red, white, and blue pencil with ILGWU insignia on it.
She also was one of the employees called into the cafeteria on July 16, 1957, by
Nelson. Her account of what transpired at the meeting was that Nelson said
. he understood that we was for the union, and we wanted a union in the shop.
But there was one thing for sure: If he caught us passing out any union literature in
the plant that we would be fired immediately."
Caudle was also called into Nelson's office for a private interview. Her account
of what transpired at that time was as follows: When she entered his office he said
"he understood I was for the union," and she told him she was. He replied that
Florene . I really don't believe it would do you any good . that's one
thing I would like to talk you out of." Nelson then went on to say ". . . he didn't
believe the union could help us in any way, that we was getting all that the plants up
north was getting with the union, and the rumors around the plant that the plant
would move if the Union came in, but to say that he couldn't."
Concluding Finding as to Caudle
In the considered opinion of the Trial Examiner, the key to the disposition of the
case of Caudle, lies in her testimony as to what happened after she was laid off
August 21, 1957, when viewed in the light of the Respondent's Exhibit No. 19, which
has been thoroughly discussed above.
As the Trial Examiner sees it, Caudle had far more work during the period in
question than she admitted in her direct examination. Quite frankly, her testimony
to put it mildly, was most unsatisfactory.
In the circumstances and in the light of the record considered as a whole, the Trial
Examiner is convinced and finds that Florene Caudle was not laid off and "sub-
sequently provided less employment ." by the Respondent on August 21, 1957,
"because of her membership in and activities on behalf of the Union." Consequently,
the Trial Examiner finds that the Respondent did not violate Section 8(a) (3) of the
Act by laying off Florene Caudle on August 21, 1957, and he will recommend below
that this allegation in the complaint be dismissed in its entirety.
This is not to say that the Trial Examiner is unmindful of Caudle's credible testi-
mony regarding violations of Section 8(a)(1) of the Act, such as Nelson's private
interview with her about her union sympathies and activities. For reasons which have
been discussed and found above and will be hereinafter discussed below, the Trial
Examiner finds that Nelson's conduct constituted interference with, restraint, and
coercion within the meaning of Section 8(a)(1) of the Act.
b. Jo Nell Warren
As indicated above, Warren is named as a discriminatee in the same paragraph of
the complaint as Florene Caudle. The General Counsel contends that Warren,
like Caudle, was laid off on August 21, 1957, and "subsequently provided less work"
by the Respondent because of her membership in, and activities on behalf of, the
Union. The Respondent's position will be set forth below.
Warren was hired by the Respondent in January 1955 as a seamer. She worked
steadily until the spring of 1956 when she was laid off for lack of work, for about
a month and a half. Thereafter, she worked until about 2 weeks before the election,
which was to be held on September 6, 1957. She was recalled to work by her
teacher on September 5, 1957, and worked until September 9, 1957, when she was
again laid off for lack of work. Her testimony on direct examination regarding
her layoff on September 9, 1957, is, in the considered opinion of the Trial Examiner,
of the utmost importance. Consequently, it follows below:
Q. And what day after the election you stated you were laid off?
A. On Monday, after the election on Friday.
Q. The election on Friday was September 6th?
A. Yes, sir.
" See supra.
MARION MILLS (DIVISION OF MUNSINGWEAR, INC.) 99
Q. And how long were you off then?
A. Until the 10th of October, I think.
Q. Did you work at any time from that Monday after the election until the
10th of October?
A. Not at that plant.
Q. Not at the plant. Now, after the 10th of October 1957, do you know
whether or not there were any new employees hired by the company to work
in the plant?
A. Yes, sir; there was.
Q. Were there girls that had not worked there before to your knowledge?
A. Yes.
Warren was working for the Respondent at the time of the hearing herein.
The Respondent's position as to Warren is the same as it took in the case of
Florene Caudle which has been set forth immediately above, and will not be reit-
erated at great length here. Suffice it to say that primarily it relied upon its Exhibit
No. 19, which has likewise been described and discussed above.
In her testimony on direct examination regarding her layoff, Warren testified
that she did not work "at that plant," meaning the Respondent's plant in Guin,
Alabama, from September 9, 1957, until October 10, 1957. Again, let us look at
the other side of the coin, so to speak, and consider her testimony in the light of the
record considered as a whole. Once again, as in the case of Caudle, we examine
Respondent's Exhibit No. 19. Here is her work record for the period in question,
September 9, 1957, to October 6, 1957, as set forth in the above exhibit:
Jo Nell Warren
Hours
Week ending August 25, 1957______________________________________ 40
Week ending September 1, 1957____________________________________ 40
Week ending September 8,1957_____________________________________ 18
Week ending September 15, 1957___________________________________ 24
Week ending September 22,1957____________________________________ 40
Week ending September 29, 1957____________________________________ 40
Week ending October 6, 1957_______________________________________ 40
From the foregoing, it is obvious that Warren did not give a true account of her
work record with the Respondent during the crucial period mentioned above.
The record shows that Warren was most active on behalf of the Union. She
signed a union card on April 8, 1957. She was a member of the union committee
that called on Nelson on the morning of July 15, 1957. Since this meeting has been
thoroughly discussed above, the Trial Examiner sees no necessity in reiterating
again . Suffice it to say that her testimony is in line with that of the witnesses whose
testimony has been set forth above.
Warren was also with the group that met with Nelson in the cafeteria on July 16,
1957. Her account of what transpired at that time was to the effect that about 18
employees met with Nelson, and that he told them ". . . if we was caught talking
about the Union on the job during working hours, we would be fired immediately.
That there would be no cards signed on Company property ... ' The Trial Ex-
aminer credits her testimony.
Warren, like many others mentioned above, was also called into Nelson's office
and queried about her union sympathies and activities on its behalf. Her testimony
is very important, particularly regarding the alleged violation of Section 8(a) (1)
of the Act. For this reason the Trial Examiner feels that her testimony should
likewise be inserted herein.
Q. And will you please tell what happened during the conversation? Relate
the conversation, please.
A. Well, he called me into the office and told me to close the door. He said,
"I know you are for the union , and you was on the committee." I said, "Yes."
He said, "I guess your family is union too," and I said, "Yes, my father is union.
He is now on retirement ." He said, "I can't understand what some of you
girls mean by this, worked here five years, and two years yourself." Said,
"We've always been good here and done everything we've promised. And here
a rank stranger comes in, promising things, and telling you lies, and you believe
every word of it." And I said, "The union man hasn't promised me anything."
He said, `Either he has, or a bunch of girls has told a damn bunch of lies."
I said , "It could be they lied."
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He said, "The plant in Hominy, Oklahoma went union just the other day
and," said, "you girls are getting exactly the same thing they are getting and
you don't have to pay dues for it. What more do you want?"
TRIAL EXAMINER: Who said that to you?
The WITNESS: Mr. Nelson.
Q. Go on. Continue, please.
A. He said, "The plant was built to work 700 people."
Q. What plant?
A. In Hominy, Oklahoma.
Q. Go ahead.
A. He said, "They now only work about 80 and," said "we can move the
machines here up there with no trouble at all." He said, "They signed a con-
tract in Minneapolis the other day for less pay than you girls are making."
Said, "I think you should think about what you are doing." And I told him
I didn't have to think, that I was raised by the union and I believed in it.
And he told me that if the union-that we would get a lot more work if the
union didn't come in and said if it does, said, "work will get real slack because
we can make it cheaper in Minneapolis." He said, "I know you girls think I'm
hard on you to a certain extent but," said, "if the union came in, you would
really have to dig them, if you think I'm hard on you."
TRIAL EXAMINER: That's what Mr. Nelson told you?
The WITNESS: Yes, sir.
Nelson denied portions of Warren's testimony about what was said by him in his
private meeting with her in his office. He particularly denied her testimony con-
cerning the Hominy, Oklahoma, plant. The Trial Examiner has given considerable
thought to Warren's testimony not only in this regard but also as to other matters
as well. He has also been concerned with Nelson's testimony regarding many
matters. Quite frankly, neither of them impressed him as honest and forthright
witnesses. He has commented on Nelson above, especially regarding his testimony
concerning the "affaire Cantrell." After long and careful consideration, the Trial
Examiner is inclined to and does credit Warren's version of what was said by Nelson
when he interviewed her privately in his office. A primary factor in his determina-
tion is the fact that other credible witnesses for the General Counsel testified along
the same vein regarding what Nelson said in his private interviews of known union
adherents, whose testimony in many instances stands uncontradicted and undenied
in the record.
Concluding Findings
In the circumstances discussed and described above, the Trial Examiner finds
that the Respondent through Arthur Nelson, its plant superintendent, violated Sec-
tion 8 (a) (1) of the Act. The Trial Examiner's reasoning will be thoroughly dis-
cussed below in that section of this report disposing of the allegations in the complaint
regarding independent violations of Section 8(a) (1) of the Act.
Now as to the allegation in the complaint that Jo Nell Warren was laid off on
August 21, 1957, and thereafter given less work because of her membership in, and
activities on behalf of, the Union.
In the considered opinion of the Trial Examiner, the General Counsel has failed
to sustain his allegation in the complaint as to Warren. The Trial Examiner has
found above that the documentary evidence in the record clearly refutes her oral
testimony regarding her work record after August 21, 1955.
In the circumstances, the Trial Examiner will recommend that the 8(a) (3) allega-
tion in the complaint as to Jo Nell Warren be dismissed in its entirety.
7. The allegations in Case No. 10-CA-3220 regarding Nell Green and Sue Seaborn
The complaint in Case No. 10-CA-3220 alleges that the Respondent (1) during
and about the month of October 1957, reduced, and curtailed the employment of
its employee Nell Green at its Guin plant; (2) on or about January 8, 1958, dis-
charged and thereafter failed and refused to reinstate its employee Nell Green at
its Guin plant; (3) since on or about September 21, 1957, has failed and refused
to reemploy its employee Sue Seaborn at its Guin plant; (4) that it engaged in the
above-described conduct because of the aforementioned employees' membership in,
and activities on behalf of, the Union and because said employees engaged in
concerted activities with other employees for the purpose of collective bargaining
and other mutual aid and protection; and (5) that the acts described above constitute
unfair labor practices wtihin the meaning of Section 8(a) (1) and (3) and Section
2(6) and (7) of the Act.
The above-named employees will be discussed below.
MARION MILLS (DIVISION OF MUNSINGWEAR, INC.) 101
a. Laura Nell Green 25
Laura Nell Green started to work for the Respondent on August 18, 1955. She
was placed on the slip line where she worked off and on until she was discharged
on January 8, 1958. During this period, she like many other employees, was laid
off now and then for economic reasons. Green's testimony of her employment
history with the Respondent up to the middle of October 1957, is important, not
only as regarding the allegations in the complaint concerning her, but goes right
to the heart of the testimony of other witnesses who also testified at the hearing
herein. In other words, the gist of their overall testimony was to the effect that prior
to August 1957, layoffs were not unusual and were accepted by them as one of the
hazards of their employment with the Respondent. An excerpt from her testimony
on direct examination follows:
Q. Now after working on August 18, 1955, did you work regularly?
A. Yes, up until I would be laid off; when I would catch up with my work
I would be laid off, say a month or two and then called back and would work
regular.
Green further testified that after the Board election on September 6, 1957, she
worked only 2 or 3 days a week up until November 1957.
The record is not too clear as to just what her work record was after September 6,
1957, but the Respondent's Exhibit No. 19, does give us not only her record but
also the record of 60 other employees as well, from June 9 to October 6, 1957.
Green's record for the period from September 1 to October 6, 1957, was as follows:
Hours
September 1, 1957------------------------------------------------- 40
September 8, 1957------------------------------------------------ 8
September 15, 1957----------------------------------------------- 20
September 22, 1957----------------------------------------------- 16
September 29, 1957----------------------------------------------- 20
October 6, 1957-------------------------------------------------- 38
The same record or chart also shows that at least 39 out of the 52 employees who
were on the payroll for this same period worked fewer hours than Green. This
calculation does not include the nine employees who were terminated during the
period from June 9 to October 6, 1957. In the circumstances, the Trial Examiner
finds that for the period from September 6 to October 6, 1957, Green was employed
whenever work was available. As for the period from October 6 to November 1,
1957, the Trial Examiner finds nothing in the record except Green's testimony which
will be discussed later.
Let us now look at Green's union activities. The Trial Examiner is setting forth
this phase of the case at this time because he feels it is the best way to present his
interpretation of the General Counsel's position as to Green.
Green signed a union card on June 17, 1957. There is no substantial evidence in
the record that she engaged in any outstanding union activities thereafter until Sep-
tember 5, 1957. In the interim, however, she had several conversations with Nelson
and her teacher, Helen Weaver, about the Union. The record shows that she was
subjected to the same sort of interrogation by Nelson and her teachers as were many
other employees, particularly those whose testimony has been set forth above. For
example, she testified that during the latter part of July or early in August 1957,
Nelson called her into his office and interrogated her about the Union 25 In the
course of their conversation, Nelson said to her that he thought she was leaning
heavily for the Union and that "... I think you are out on a limb and should get
back on the tree. . "
She further testified that sometime during the latter part of August 1957, Teacher
Mary Taylor asked her if she was still for the Union. She told her that she was
not. Taylor then suggested that she so advise Nelson. Shortly thereafter Nelson
called her into his office. What followed thereafter is best told in her own words;
an excerpt from her testimony on cross-examination follows:
Q. Then what?
A. I went into the office, and he said, "I hear you are not for the union any
more." I told him No. He said, "What changed your mind?" I told him that
since he saw me talking to the union organizer out front that I had only worked
two or three days a week. He said the union was the reason for me not getting
21 The record shows that the correct name of the person is "Laura Nell Green."
28 See the testimony of other witnesses, supra.
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to work any more than I was, that the company wouldn't send material down
during all this about the union. He told me that they were going to put in a
cutting department for both the Hamilton and Guin plant, and that the space
taken up for the cutting department then would be-they would put in 18 new
machines and 18 new employees. He said that during that time of year we were
to get our winter material to make the winter garments, and he said we would
just have to get by on what we had now, that we wouldn't get our new cutting
department, or the new machines, or new employees.
Q. Now, did he go ahead and say anything else about whether or not-any-
thing else during that conversation that you had about the machines?
A. Yes. He told me that he was glad that I wasn't for the union any more.
He told me that I would have to prove to him that I wasn't. I asked him how.
He said that I would have to work as hard for the company as I had for the
union. I told him that I would do my best. He said, "One thing that you can
do for me would be to attend the union meetings and report back to me what
was said. Did you go to the meeting in Boston the other night?" I answered,
"Yes, I was there." He asked me then if anything new had taken place. I told
him No, that nothing you don't already know about. He told me to go back
to my machine then and to work but not be associating with the union girls and
be sure and not let them talk me back into being for the union.
Q. And he said that to you?
A. Yes.
Q. And have you left out anything this time that you can remember?
A. Not that I can remember.
Nelson admitted having the above conversation with Green, but his version of
her testimony that he requested her to report to him regarding union meetings and
the like was to the effect that she herself made the suggestion, and that he, in sub-
stance, ignored it.
After careful consideration, the Trial Examiner is inclined to credit Green's testi-
mony. It must be remembered that the record shows without contradiction that
Netta Pugh, an admitted supervisory employee, made the same request to one of
the employees. This incident has been set forth above and will not be reiterated.
Suffice it to say, that from both the testimony of Green and Nelson, the Trial'
Examiner makes the following finding. He finds that Green by her admitted state-
ments in this interview with Nelson laid herself wide open, so to speak, for such a
suggestion from him. In other words, she was ready to report the activities of her
fellow workers who were supporting the Union in order to gain some benefit for
herself.
In conclusion regarding this particular incident, the Trial Examiner finds that
Nelson's statements to Green were so clearly violative of Section 8(a) (1) of the Act,
that he sees no necessity to cite Board and court decisions in support of his con-
clusions and findings.
On September 5, 1957, Green and a coworker, Sarah Gray Wilson, passed out
union handbills in front of the main entrance to the plant. This occurred at around
3:30 p.m. which is the regular quitting time, and the employees left the plant by that
entrance. She and Wilson were standing a few feet from the door. After they
had been there a few minutes, Nelson came out and, according to Green, told
them ". . . Girls, I've got on to you time and again about this union literature.
If you want to give it out, give it out on the street." She and Wilson then walked
away and went on home. Green's testimony was corroborated by the credible testi-
mony of Sarah Gray Wilson in that section of this report dealing with the objections
to the election.
Nelson's version of the above incident was to the effect that his sole motive in
requesting Green and Wilson to cease passing out the handbills was because they
were so near to the exit of the plant that they were blocking the egress of employees
therefrom. He further testified that all he said was to ".. . please move off so
that the girls could get out of the door."
Upon the entire record considered as a whole, the Trial Examiner credits the testi-
mony of Green and Wilson regardincr the above incident, and finds that Nelson
requested them to stop passing out the handbills and to leave the Respondent's
premises.
Since the foregoing incident is part of one of the allegations in the complaint
regarding independent violations of Section 8 (a) (1) of the Act by the Respondent
and of great importance in the objections to the election issue herein, the Trial
Examiner will reserve further comment until he considers them below.
The Trial Examiner has set forth above Green's employment history with the
Respondent from the time she was hired, August 18, 1955, to October 6, 1957. We
MARION MILLS (DIVISION OF MUNSINGWEAR, INC.) 103
now come to what the Trial Examiner considers the crucial period of her employ-
ment with the Respondent, that is, from October 6, 1957, to the date of her discharge,
January 8, 1958.
From what the Trial Examiner gleans from the record, Green's testimony was to
the effect that through the month of October up until sometime in November 1957,
she worked only 2 or 3 days a week. She became dissatisfied with this condition
and went to Nelson and asked him about the possibility of her drawing some sort of
unemployment compensation to make up the difference between what she was then
earning and her normal wage. Nelson advised her, in substance, that he was not
familiar with the rules and regulations of the Unemployment Agency and suggested
that she call at its offices and find out for herself. She further testified that Nelson
asked her ". . . what is the Union going to do for you." She told him she didn't
know. Nelson finally told her that he had no objections to her going to the Unem-
ployment Agency offices and stated to her ".. . remember you brought this all on
yourself."
As indicated above, the record is none too clear regarding Green's employment
during October and November 1957. However, the record does indicate that Green
was working at the job she had been on for over a year, edging lace. She testified
that she worked on this job up until the latter part of October 1957. She was then
assigned to sewing panels in slips. It was while she was on this job that the inci-
dents that led to her discharge on January 8, 1958, occurred.
The record shows that while Green was working on her last job, at times she was
required to work with substandard fabric. Witness after witness both for the General
Counsel and the Respondent testified, in substance, that it was a difficult and
exasperating task to work with this particular fabric. Their principal objection to
working with the fabric was that it was not only difficult to work with but had a
tendency to "pucker up" which would require the ripping apart of the job they were
working and resewing it. The Respondent recognized the situation and those who
were assigned to the task were not required to "meet production," but were paid on
the basis of their average wage. The record also shows that the use of this material
was common everyday practice at the plant. Nobody liked to work on it but it was
part of the job and the employees recognized it as such. The record also shows that
exasperating as the job was, there were ways and means to conquer the situation,
primarily, patience and the application of a silicon solution to the fabric while it
was being fabricated on the machines. A good description of the difficulty en-
countered in working with this fabric and how the situation could be mastered is
found in the credible testimony of Ruby Lane Phillips, a witness called on behalf of
the General Counsel in support of his case-in-chief. An excerpt from her testimony
follows:
Q. Now, you say on occasions you have worked on defective fabric and that
the inspectors have found some puckered work and sent it back to you?
A. Yes, I did.
Q. And you corrected it; didn't you?
A. I had to carry them to an ironing board and had to iron them out.
Q. Had to iron them out?
A. Yes.
Q. But you did make the correction?
A. Yes.
Q. And when the teacher showed you how to keep from making the bad
work, then you didn't make any more; did you?
A. Well, they didn't know how themselves. They sat there and showed me
how, and they said, "Well, mine doesn't look no better than yours does."
Q. Well, you didn't get any more back of that?
A. No, because, they got me some silicon is what you call it. And I'd put it
on it, and every time it would sew six inches I'd have to put a lot of it on.
Q. And then after they gave you this silicon or whatever it was to stop it from
puckering, then you started making good work and you didn't get any more bad
work back to correct?
A. No; I hadn't got any back since. It's back in-I can't recall, back in
January I believe.
In passing, the Trial Examiner desires to point out that the record shows that
Phillips was an active supporter of the Union and a member of the union committee.
At the time of the hearing herein, she was still employed by the Respondent.
We now come to the events or incidents that led up to Green's discharge on
January 8, 1958. Sometime in the latter part of November or early in December
1957, she was required to work on substandard fabrics, which as indicated above, was
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nothing unusual insofar as the day-to-day work assignments to employees in the
Respondent's plant is concerned.
According to Green, she spent about half of her time working on substandard
fabrics. When she first started to work on this material, she would ask the teachers
to show her how to hold the material to keep it from puckering, which they did.
Regardless of their assistance, however, she continued to turn out a number of
"puckered" jobs which eventually were rejected by the inspectors and returned to
her for correction by the teachers. Sometime in the latter part of December 1957,
or early in January 1958, Nelson came to her and warned her about the quality of
her work. She reminded Nelson that she was working on substandard material.
Nelson agreed that the material was substandard, but told her, ". . . I only have to
get after you one more time about poor work and you will be put out."
Green further testified that about a week later, January 8, 1958, she was again
warned by her teacher, Helen Weaver, about her work. What happened at the time
is best told in her own testimony on direct examination:
Q. Please relate what happened then, if anything?
A. Well, two of the teachers came to my machine and started checking my
work. One of them, Helen Weaver, asked if I didn't know when my work was
puckering. I said, "Yes, I know when my work puckers, because the machine
pulls the material." She said, "Don't you ever check your work?" I said, "Yes,
I check and rip out and resew all that has puckers in it that I can find." She
said, "Well, you'll have to take to doing better work than this or Mr. Nelson will
fire you out of here." I said, "I've been expecting that for the last six months
because I've been hearing the rumors about it, and he knows that I lean for the
union." And I said, "It wouldn't be nothing new if he did fire me because I
been expecting it."
Her and the other teacher, Mary Taylor, left my machine, and a short while
later Helen Weaver came back and said, Mr. Nelson wishes to see me in the
office. I left my work and went to the office as instructed.
Q. Relate that again. You went to the office?
A. Yes.
Q. And what happened there?
A. Mr. Nelson said, "I thought I got on to you a short while ago about poor
work." I said, "Yes, you did, but you agreed with me on the substandard
fabrics, that it wasn't what it should be." He said, "That's no excuse for poor
work." He said that it was 11 o'clock, that I could go home. So I went to my
machine and gathered up my belongings to go.
After Green left the plant, she called Nelson on the phone and in substance asked
if she was discharged because "I was for the Union." Nelson told her, ". .. you
are being fired for poor work, and that's all that's necessary."
As indicated above, the Respondent contends that Green was discharged for poor
workmanship, and that her membership in the Union had nothing to do with its
action.
In support of its position , the Respondent offered the testimony of several wit-
nesses, one of whom was Anna H. Harris, the inspector who checked Green's work.
Harris testified , in substance , that in her experience as an inspector she had never
known of an operator in the plant that ". . . continued to make or pass the bad
work" that Mrs. Green passed "who is still in the plant after she was warned."
Harris impressed the Trial Examiner as an honest and straight-forward witness;
consequently , he credits her testimony.
In further support of its position as to Green, the Respondent called as one of its
witnesses , Mary Helen Weaver , one of her teachers.
According to Weaver's credible testimony , she instructed Green time and again
regarding the sewing of substandard materials. In spite of her instructions and
assistance , Green still continued to produce "puckered up" work . She further testi-
fied, in substance , that from her own observation and in particular her conversations
with Green about her work, she seemed to take the attitude that she was disgusted
with working with substandard materials . In one of their conversations about the
work, Green told her that she would ". . . rather be laid off than to have to sew it."
Nelson, in his testimony concerning Green 's discharge , testified in substance, that
in his opinion she "just didn 't care" about her job insofar as working on substandard
materials was concerned.
Conclusions
After careful consideration, the Trial Examiner is convinced that Laura Nell
Green was discharged for cause . His conclusion is predicated upon several factors.
In the first place, the record shows that she was not an outstanding supporter of the
MARION MILLS (DIVISION OF Mti NSINGWEAR, INC.) 105
Union. The only activity that she engaged in that came to the Respondent's par-
ticular attention was when she, along with Sarah Gray Wilson, passed out union
literature in front of the plant on September 5, 1957, the day before the election.
On the other hand, the record clearly shows that she offered to "sell out," her
fellow union members and report their activities to the Respondent to benefit her-
self. Another important factor in the Trial Examiner's conclusion as to Green
was her attitude towards her job, expressed not only by her demeanor while testi-
fying but by her own testimony, especially regarding the assignment to work on
substandard materials. From this the Trial Examiner's agrees with the testimony
of Nelson that she "just didn't care," and was disgusted with working on such
materials. The Trial Examiner has set forth in considerable detail above his summa-
tion of the testimony and will not reiterate it. Suffice it to say, that it was nothing
unusual for employees to be assigned to work with such materials. A further
factor is the fact that Green was warned about her work and advised to take her
time and follow instructions. This she failed to do.27 And finally, a most per-
suasive factor is the fact that Sarah Gray Wilson, a most active union adherent 28
who was with Green passing out union handbills in front of the plant on September
5, 1957, the evening before the election, was still in the employ of the Respondent
at the time of the hearing herein. In such circumstances the Trial Examiner is in
complete agreement with the Decision of the United States Court of Appeals Sixth
Circuit, in the Cross Company case. In that case the facts are analogous to the
facts here. For that reason, the Trial Examiner feels that it should be set forth
herein in toto.
No. 13-459
UNITED STATES COURT OF APPEALS
SIXTH CIRCUIT
THE CROSS COMPANY, Appellant
v. ORDER
NATIONAL LABOR RELATIONS BOARD, Appellee
Before ALLEN, Chief Judge; MARTIN, Circuit Judge;
and THORNTON, District Judge
This cause came on to be heard on petition of The Cross Company for
review of an order of the National Labor Relations Board, which petitioner
avers should be set aside.
The case involves the single issue of whether or not the board erred in
reaching the same conclusion as did the trial examiner-that the petitioner
discharged its employee, Ziolkowski, because of his union activity.
The decision of the National Labor Relations Board rested on a two-to-one
vote. After consideration of the record and the briefs and oral arguments of
the attorneys in the case, the report of the trial examiner and the majority
and minority opinions of the board, we are in accord with the dissenting
opinion of Member Rogers. We agree with his statements that, when
Ziolkowski was discharged, the union had already lost the plant election of a
bargaining agent; that Ziolkowski's role in the union effort, which he sup-
ported, had been minor; and that he had not been an organizer. As pointed
out by the dissenting board member, Rogers, the most serious expression of
any anti-union sentiment chargeable to The Cross Company was directed, not
against Ziolkowski, but against another employee, Saymanski, an apparent
union organizer who was not discharged.
No violation of section 8(1) (2) of the National Labor Relations Act on the
part of the Cross Company is alleged or found to have been done. Upon the
record as a whole, we agree with Member Rogers that the burden of showing
that The Cross Company discharged Ziolkowski because of his support of the
union has not been carried.
Accordingly, the order of the National Labor Relations Board is set aside;
and the complaint filed August 13, 1956, is dismissed.
ENTER:
(S) JOHN MARTIN,
United States Circuit Judge.
17 See United Fire Works Mfg. Co., Inc. v. N.L.R.B., 252 F. 2d 428 (C.A. 6), 118 NLRB
883 (in re the discharge of Rhoda Webb regarding repeated warnings).
28 See supra In re Wilson's union activities.
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the circumstances discussed and found above, the Trial Examiner is convinced
and finds that Laura Nell Green was discharged for just cause . Consequently, he
will recommend hereinafter that the allegation in the complaint , Case No.
10-CA-3220, be dismissed as to her in its entirety.
b. Sue Seaborn
Seaborn was employed by the Respondent sometime around the middle of
January 1957. She worked on several different operations, or as she put it in her
testimony, ". . I'd catch up on one and they'd put me on another one."
On August 6, 1957, she went to see her doctor, who told her she would have to
go to the hospital for treatment the next day. He wrote a note for her to give to
Nelson about the necessity for her immediate hospitalization. She gave the note
to a neighbor who worked at the plant, and requested that she deliver it. Shortly
thereafter, the Respondent granted her a leave of absence until September 21, 1957.
She went to the hospital as planned and was operated on a few days later. Her
doctor released her on September 21, 1957, and told her she could return to work.
A few days later, on September 23, 1957, she went back to the plant and gave
Nelson the doctor's note that he had released her and that she was ready for work.
Nelson told her ". . . he was sorry that he didn't have anything for me then, and
that he would let me know as soon as he did." 29 She did not hear from Nelson and
went back to the plant about a month later and again asked him for work. He
told her that he had no jobs available, but would let her know when he did. There-
after she continued to call at the plant about once a month and request reinstate-
ment. Each time Nelson told her the same thing, that is, that no jobs were
available. She finally got tired of this and went to work for the Champ Trouser
Company, Winfield, Alabama, where she was employed at the time of the hearing
herein.
Seaborn signed a union card on July 18, 1957. Sometime between that date and
August 6, 1957, she wore a union button while she was at work. Insofar as this
record is concerned, the foregoing constitutes the extent of her union activities.
The above constitutes the General Counsel's case-in-chief as to Sue Seaborn.
The Respondent's position as to Seaborn is found in the following testimony of
Plant Manager Nelson:
Q. Sue Seaborn testified I think that she was laid off or terminated and came
back to see you on a number of occasions about getting a job?
A. She did.
Q. And you heard her testify, did you not?
A. Yes, sir.
Q. Why was she not taken as one of these people that you took on at this
time?
A. Because of her lack of experience in the type of work that I had open at
that time. She-the only experience that Sue Seaborn has had is on single needle
machines, and this work that I had available was seaming.
Mr. COHN: What was that?
The WITNESS: Was seaming. When I first hired Sue Seaborn, I tried her for
a few days on a seaming machine, and it just didn't work out.
Q. What do you mean just didn't work out? Was she capable of doing
the-
A. She showed no promise of making a seamer.
Conclusion
From all of the foregoing, the Trial Examiner is convinced and finds that General
Counsel has failed to show by a preponderance of the evidence in the light of the
record considered as a whole, that Seaborn was refused reemployment by the Re-
spondent because of her membership in, and activities on behalf of, the Union and
because she engaged in concerted activities with other employees for the purpose of
collective bargaining and other mutual aid and protection.
Here as in all cases of this nature many factors have entered into the Trial Ex-
aminer's conclusion as to Seaborn. In the first place, there is no substantial evidence
in the record that the Respondent even knew she belonged to the Union at times
material herein. All that the record shows is that for a short time between July 18
and August 6, 1957, she wore a union button while she was at work. That con-
stitutes her union activities. When one considers this in the light of the fact that
many of the outstanding union adherents, such as committee members, participants
2OQuotes from Seaborn's credible testimony.
MARION MILLS (DIVISION OF MUNSINGWEAR, INC.) 107
in the parade , regular attendants at union meetings , and participants in many other
activities on behalf of the Union, were still in the employ of the Respondent at the
time of the hearing herein, it is most difficult to fathom why even a charge on her
behalf was filed by the Union.
In such a state of the record, the Trial Examiner is convinced that he has no al-
ternative but to recommend the dismissal of the complaint as to her.
In the circumstances found and discussed above, the Trial Examiner will recom-
mend below that the complaint as to Sue Seaborn be dismissed in its entirety.
B. Independent violations of Section 8(a) (1) of the Act
The complaint in Case No. 10-CA-3008 alleges numerous independent violations
of Section 8(a)(1) of the Act. At the onset of this report the Trial Examiner stated
that in disposing of the issues herein, he would deal with each 8 (a) (1) violation as
it arose in making his findings of the numerous allegations in the combined com-
plaints relative to violations of Section 8(a)(3) and (1) of the Act. This he has
done and numerous independent findings of violations of Section 8(a)(1) have been
made above. In the circumstances, he sees no necessity of reiterating and over-
burdening this already burdensome report. Consequently, he makes the following
overall findings:
1. That Respondent, by its supervisors, agents, and instrumentalities named above
on numerous dates during June, July, and August 1957, at its Guin plant, interrogated
its employees concerning their union membership, activities, and desires.30
2. That Respondent, by its supervisors, agents, and instrumentalities named above
on numerous dates during June, July, and August 1957, at its Guin plant, warned its
'employees that the Guin plant would be closed and moved to another location if the
union campaign were successful.31
3. Respondent, by its Plant Manager Arthur Nelson, on or about July 31, 1957, at
its Guin plant, promised its employees economic benefits if they would abandon their
membership in, and activities on behalf of, the Union 32
4. That Respondent, on or about July 16, 1957, at its Guin plant, through Plant
Manager Arthur Nelson, announced to some employees that solicitation on behalf
of the Union, and distribution of literature favorable to the Union, would not be per-
mitted on company time and/or property 33
The acts of Respondent described above constitute unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the
Act.
C. The Objections to the Election Case No. 10 -RC-3933
As pointed out above the Union filed a petition for certification of representatives
with the Board's Regional Office in Atlanta , Georgia, on August 2, 1957. Thereafter
on August 23, 1957, the Union and the Respondent entered into a stipulation for
-certification upon consent election. What transpired thereafter and the date of the
election, September 6, 1957, is what we are primarily concerned with in this section
of the report.
As indicated above, the Union lost the election . Thereafter it filed timely objec-
tions to the election. The Regional Director for the Tenth Region conducted an
investigation and as a result thereof , recommended to the Board in his report on
objections to the election ". . . that Objections Nos. I and 2 raise material and sub-
stantial issues of fact and that the Board direct a hearing thereon. The Trial
Examiner further recommends that the remainder of the Objections be overruled."
Upon referring to the Regional Director 's report on objections to the election we
find that objections Nos. 1 and 2 are as follows:
The Objections allege that the Employer , through its officers, agents and
supervisors , interfered with, restrained and coerced its employees prior to the
election by the following conduct:
(1) Imposing an illegal no-solicitation rule, specifically forbidding solicitation
on behalf of the union on company property during non -working time;
(2) Discriminatory application of a no-solicitation rule, specifically allowing
anti-union employees to mingle freely with other employees , solicit other em-
ployees to 'reject the union and roam about its plant at will on company time,
while denying these privileges to pro-union employees;
30 Paragraph 11, of the complaint in 'Case No. 10-CA-3008.
"'Paragraph 12, of the complaint in Case No. 10-CA-3008.
83 Paragraph 13, of the complaint in Case No. 10-CA-3008.
3 Paragraph 14, -of the complaint in Case No. 10-CA-3008.
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner has made specific findings above regarding the Respondent's:
no-solicitation rule by employees who were active on behalf of the Union. By this
statement he means that he has resolved the credibility question and has found that
such a rule was promulgated by the Respondent, speaking through Plant Manager
Nelson on July 15, 1957, when he told the union committee in substance that they
would not be permitted to solicit for the Union on company time and property. The
record is replete with similar statements by Nelson thereafter. Many of these state-
ments have been set forth above. However, he has not yet made a specific finding of
fact and a conclusion as to whether the rule in question was violative of the Act. As
pointed out above, the Trial Examiner stated that findings and conclusions would be
reversed for that section of this report called "Objections to the Election." Though
he has stated his reasons for so doing, he feels that it might be well to reiterate them
here.
The primary reason for the Trial Examiner's position is that the objections to the
election raise that very issue, and he felt that it would be better for all concerned to
reserve his findings and conclusions as to this allegation in the complaint for this,
section of the report.
That the Respondent promulgated such a rule after the Union's organizational drive
got under way in July 1957, is clearly established in the record. On the other hand,
the record also shows that the Respondent did have a rule that employees were not
to talk to each other while they were working at their machines. Witness after wit-
ness for all parties testified that when they were hired they were told by responsible
representatives of the Respondent, in substance, that they were to concentrate on
their work and that they "shouldn't talk" while running their machines. They
further testified, in substance, that the reason given for the rule was that they couldn't
expect to make any money if they spent their time talking. Such a rule is logical,
especially where employees work on a production or piecework basis. As the Trial
Examiner sees it, there is nothing illegal about such a rule, particularly since it is.
well settled that "working time is for work." Where we run into difficulty with issues
that arise concerning the legality of the no-solicitation rule is whether or not it was
discriminatorily motivated to interfere with, restrain, and coerce employees in the
exercise of their rights under the Act.34 That is the question that confronts us here.
As pointed out above in many instances Nelson told not only groups of employees
who were known union adherents that there would be no solicitation or talking
about the union or anything else in the plant during working hours and if they were
caught doing it, they would be terminated, but he also made similar statements to
the individual employees he called into his office and interviewed regarding their
union sympathies and activities on its behalf. Other examples of Nelson's activities,
in addition to the many instances discussed above, follow.
According to the credible testimony of Sarah Gray Wilson, a well-known union
adherent and a member of the union committee that met with Nelson on the
morning of July 15, 1957, the following incident occurred on the morning of August
19, 1957: On that morning she placed on the machines union leaflets announcing
a meeting of a few employees before work started; that Nelson saw her doing so;
and that he came to her and said ". . . Sarah Gray, didn't you know you were not
supposed to give out union literature in this building?" And I said, "well the bell
hasn't rang. You are not paying me for this time." He said "Don't make any
difference. You are not supposed to give out any kind of literature for that matter
in, and especially union literature, in this building. And don't do it again or you'll be
fired." 35 She further testified that she had never heard of any rule about distributing
literature during her tenure of employment with the Respondent. She was first hired
in October 1953, and was still working for the Respondent at the time of the hearing
herein.
The record shows that during the union's organizational drive, particularly from
July 15, 1957, until the date of the election, September 6, 1957, there was conversa-
tion amongst the employees about the Union. With 146 female employees working
on the same shift that could be expected, or as one of the witnesses for the Re-
spondent put it "You know, women will talk." Nevertheless, there is no substantial
evidence in the record that employees who were nonunion or in the teacher class
were subjected to private interviews by Nelson in his office. From what the Trial
Examiner gleans from the record, only those employees who were known to be union
adherents were subjected to such treatment. While there is some testimony that
some of the nonunion employees were reprimanded by Nelson for talking in the
plant, there is no substantial evidence in the record that they were subjected to threats
34 See Avondale Mills, 115 NLRB 840.
85 Quotes from Sarah Gray Wilson's credible testimony.
MARION MILLS (DIVISION OF MUNSINGWEAR, INC.) 109
of reprisal for such conduct as were the advocates for the Union. For example,
Willie Harris, a witness called by the Respondent, testified that Nelson "stopped
her from talking." However, at the time she was working at her machine, and there
is nothing in her testimony from which an inference could be drawn that Nelson
heard what she was talking about or that she was even talking about the union.
Moreover, she did not identify either the person or persons with whom she was
talking at the time. In such a state of the record, the Trial Examiner finds that her
testimony was irrelevant, immaterial, and of no probative value whatever. Suffice
it to say that if she was talking while she was supposed to be working, Nelson had
a right to stop either her or any other employee engaged in similar conduct.
On the other hand we have the uncontradicted and undenied testimony of Icie
Banks Estes that her teacher, Elsie Mayo came to her while she was working at her
machine on September 5, 1957, the day before the election, and engaged her in
.conversation about the union. Her testimony follows:
Q. (By Mr. Cohn.) Were you working in the shop there on September 5th,
Miss Estes?
A. Yes.
Q. That was the day before the union election?
A. Yes.
Q. Do you recall a conversation-well, let me ask you this: Do you know
Elsie Mayo there?
A. Yes.
Q. Who is she?
A. She is a teacher in the plant.
Q. Is she your teacher?
A. Yes.
Q. Did you have a conversation with her that day?
A. Yes. She came to my machine and she was wearing a "Vote No"
ribbon on her blouse, and I was wearing a "Vote Yes." So she said, "Won't you
change your mind?" I did not answer her question, but I said, "When I go in
there and vote, no one will know what way it will be."
Q. Was anything else-
A. So she said-I told her that there were a lot of girls that were wearing
"Vote No" ribbons in the plant that was going to vote "Yes." And she said,
There probably will be."
Q. Is that all she said?
A. That's all she said.
Banks impressed the Trial Examiner as an honest and forthright witness. In
the circumstances and in the light of the record as a whole, he fully credits her
testimony of the above incident.
The role of the teachers has been thoroughly discussed above, and the Trial
Examiner has found that on several occasions they acted as "Instrumentalities"
for the Respondent. Such is the case here and he so finds.
Another incident of the Respondent's discriminatory application of its so-called
no-solicitation rule is found in the credible testimony of Sarah Gray Wilson. Accord-
ing to her credible testimony, an employee named Robbie Knight passed out to the
employees a handbill announcing a nonunion meeting that was to be held in the
local Armory. It further stated that there would be speeches and refreshments
served. This incident occurred sometime in the latter part of July 1957. The most
significant thing about this particular incident is that Knight passed the leaflet out
at the same spot where Green and Wilson stood when they attempted to pass out
prounion literature on the afternoon of September 5, 1957, the day before the election.
We now come to what the Trial Examiner considers the most important testimony
in the record regarding the issues raised by the objections .to the election. He has
reference to the attempted distribution of union literature outside the entrance to the
Respondent's plant on the afternoon of September 5, 1957, the day before the elec-
tion, by Laura Nell Green and Sarah Gray Wilson.
The Trial Examiner has found above in that section of this report relative to
the alleged discriminatory discharge of Laura Nell Green that on the day before the
scheduled Board election, September 5, 1957, Green and Sarah Gray Wilson at-
tempted to pass out prounion literature to the employees as they left the plant at
around 3:30 p.m.; that they were standing under a covered shed located about 10
feet from the door that the employees used to leave the plant; and that Nelson saw
them and ordered them to leave the Company's property, which they did. The Trial
Examiner has also found above that Nelson made the remarks attributed to him by
Green in her testimony and has discredited Nelson's account of the incident.
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner has also indicated above that Green's testimony was fully
corroborated by the testimony of Sarah Gray Wilson. However, he did not set
forth a resume of Wilson's testimony of the incident, but stated that he would do
so in this section of the report. Let us now look at Wilson's testimony of the incident
in question.
Sarah Gray Wilson started to work for the Respondent on October 13, 1953, and
had worked continuously for it up to the time she testified at the hearing herein. She
was an active union adherent and was a member of the union committee that called
on Nelson on the morning of July 15, 1957.
Her account of what occurred on September 5, 1957, is important not only
because it fully corroborates Green's testimony but also because it relates to what
happened that same morning at the same identical spot that she and Green were
standing when Nelson ordered them to cease and desist from passing out union
literature. In the considered opinion of the Trial Examiner, an excerpt from her
testimony should be set forth below:
Q. I see. Now, when you went to work that morning, was anybody giving
out anything?
A. Yes. Gladys Smith and Marie Silas were standing one on either side of
the walkway, under the shelter, on the same place we were. And they were
giving out "Vote No" ribbons. And they asked, "Will you wear a `Vote No'
ribbon?" And I said, "No," and went into the plant.
Q. Were these two persons that you just named, are they employees at the
plant?
A. Yes.
Q. Now, did you see any employees accept one of these "Vote No" ribbons?
Did you see anybody accept one?
A. Yes, but I can't remember who they were because nearly every person
wore one, or most everyone.
Q. Would they just take them, or would the girls come along, or what?
A. One of the girls had the pins, the one had the ribbons; but I don't remem-
ber which one held the pins and which one the ribbons.
Q. I see. What time did you get to work that morning? What time?
A. I don't know exactly the minute, but we can't clock our cards until ten
minutes to seven.
Q. And you got there before then?
A. I got there before seven o'clock.
Q. Do you know whether any of the girls were there when you got there?
A. Yes; they were standing there.
Q. How long did they stand there?
A. I don't know. I went on in the building. I didn't notice when they
came in.
Wilson's testimony was also corroborated by Ruby Lane Phillips. Phillips testified
that Nelson was standing "in the office door," which is near the entrance to the
plant.
Phillips impressed the Trial Examiner as a truthful witness. As a matter of fact,
her testimony of the above incident stands uncontradicted and undenied in the
record. In the circumstances, the Trial Examiner credits her testimony of the
above incident in its entirety.
Concluding Findings
From all of the above the Trial Examiner concludes and finds that the promulga-
tion of the no-solicitation rule against solicitation and distribution of union literature
on company property was discriminatorily motivated and thus deprived the em-
ployees of the rights guaranteed them under the Act, and thereby violative of Sec-
tion 8(a)(1) of the Act.36
We now come to the disposition of the objections to the election, in Case No.
10-CA-3933. As indicated above we are confronted with objections Nos. 1 and 2.
Under Board policy the Trial Examiner will only consider the testimony adduced
at the hearing herein regarding incidents that occurred between August 23, 1957,
the date the Union and the Respondent entered into the stipulation for a consent
ae See Rockwell Manufacturing Company (Du Bois Division), 121 NLRB 288 and
cases cited therein, particularly on page 289 of the Board's Decision and Order; see also
Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793; N.L.R.B. v. La Salle Steel Co.,
178 F. 2d 829 (C.A. 7) ; Delta Finishing Company, 111 NLRB 659; Cranston Print
Works Co., 115 NLRB 537.
MARION MILLS (DIVISION OF MUNSINGWEAR, INC.) 111
i
election, and the date of the election, September 6, 1957, or what is called the
"critical period."
As to objection No. 1 the Trial Examiner has found above that Plant Manager
Nelson stopped Laura Nell Green and Sarah Gray Wilson from distributing pro-
union literature to the employees as they were leaving the plant after quitting time
at around 3:30 p.m. on the afternoon of September 5, 1957, the day before the
election and ordered them out into the street. He has also found above that on
the morning of September 5, 1957, two nonunion employees, Gladys Smith and
Marie Silas, were at the same place that Green and Wilson were later in the day,
and passed out "Vote No" ribbons to the employees as they entered the plant,
without interference from any source, and with the knowledge of file Respondent.31
The Trial Examiner has considered Nelson's testimony that he ordered Green
and Wilson from the place where they were standing because they were blocking
egress from the plant, and he rejects it as being not only without merit, but also
because of another factor. The record shows that at the time in question there
were approximately 145 employees working in the plant. All were required to
punch the time clock as they entered and left the plant. "Clock in" time, as the
witnesses called it at the hearing herein was from "ten till seven until seven" a.m.
In other words the employees had 10 minutes to check in and reach their working
places. Hence, it is just as logical to infer that entrance to the plant would be
impeded in the a.m. as the employees were entering the plant to reason that they
were impeded by similar activity in the p.m., as Nelson contended in defense of
his ordering Green and Wilson to leave the place where they were standing and go
out "in the street."
In the circumstances the Trial Examiner finds merit in objection No. 1, in that
it was in fact the enforcement of an illegal no-solicitation rule during the "critical"
period after the execution of the stipulation and thus constituted such interference
as to warrant setting the election aside, and the Trial Examiner so finds.
Now as to objection No. 2 the record shows that during the "critical period," that
is from August 23 to September 6, 1957, the Respondent's no-solicitation rule was
not "rigidly" enforced against employees who were nonunion. This is evidenced
by the uncontradicted and undenied testimony of Icie Banks Estes regarding her
interrogation by her teacher, Elsie Mayo, on September 5, 1957. The Trial Examiner
has found above that Mayo and other teachers were at times "Instrumentalities" of
the Respondent. In the conversation referred to, Mayo solicitated Banks to vote
against the Union. In the considered opinion of the Trial Examiner this one in-
cident in and of itself during the critical period warrants a finding that objection
No. 2 was well taken. Consequently, the Trial Examiner finds merit to objection
No. 2.
Conclusion
In view of all of the foregoing the Trial Examiner finds that objections to the
election Nos. 1 and 2, warrant a finding that the election of September 6, 1957,
be set aside and that a new election be ordered amongst the Respondent's employees
in the appropriate unit to permit the free choice of a bargaining agent, and he so
recommends.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the follow:
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth 'in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
the Trial Examiner will recommend that it cease and desist therefrom and take
certain affirmative action in order to effectuate the policies of the Act.
Having found that on August 8, 1957, the Respondent discriminated in regard to
37 The record shows that Nelson was standing at approximately the same place that he
was when he saw Green and Wilson pass out prounion literature after quitting time the
same day. In the circumstances the Trial Examiner finds that Nelson was well aware of
the activities of Smith and Silas in passing out the "Vote No" ribbons on the morning of
September 5, 1957.
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the hire and tenure of employment of the following employees: Willie Helen
Berryhill, Christine Clark, Joyce Parr, Willamae Roberts, and Evie Warren it will
be recommended that the Respondent offer them immediate and full reinstatement
to their former or substantially equivalent positions without prejudice to their sen-
iority or other rights and privileges, and make them whole for any loss of pay
suffered as a result of the discrimination against them, by payment to each of them
of a sum of money equal to that which she would have earned from the date of the
discrimination to the date of the offer of reinstatment, less net earnings, to be
computed on a quarterly basis in the manner established by the Board in
F. W. Woolworth Company, 90 NLRB 289, 291-294. Earnings in any one par-
ticular quarter shall have no effect upon the back-pay liability for any other such
period. It will also be recommended that the Respondent preserve and make
available to the Board upon request, payroll and other records to facilitate the
checking of back pay due.
The Trial Examiner has also found that the Respondent discriminated in regard
to the hire and tenure of employees Melva Lou Akers, Autie Franks, Florence
Humbers, Adell May, Willie D. Morrow, Evelyn K. Sandlin, Mae Nell Stephens,
Catherine Eads, and Willa Dean Ballard by giving them final separation notices
instead of the usual and/or regular layoff notices at the time their jobs were
discontinued by reason of economic factors. It will be recommended that they be
placed on a preferential hiring list and offered the first jobs available for which
they are qualified by experience during their tenure of past employment with the
Respondent, and that each of said employees be so notified by the Respondent if
and when jobs are available and that they have been placed on such a preferential
hiring list.
As the unfair labor practices committed by the Respondent were of a character
striking at the roots of employees' rights safeguarded by the Act, and disclose a
propensity on the part of the Respondent to continue, although not necessarily by
the same means, to defeat self-organization of its employees, it will also be recom-
mended that the Respondent cease and desist from infringing in any manner upon
the employee 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 before the Trial Examiner, he makes the following:
CONCLUSIONS OF LAW
(1) International Ladies' Garment Workers' Union, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
(2) By discriminating in regard to the hire and tenure of employment of
employees Willie Helen Berryhill, Christine Clark, Joyce Parr, Willamae Roberts,
and Evie Warren, thereby discouraging membership in the Union, the Respondent
has engaged in unfair labor practices within the meaning of Section 8(a) (3) of the
Act.
(3) By giving employees Melva Lou Akers, Autie Franks, Florence Humbers,
Adell May, Willie D. Morrow, Evelyn K. Sandlin, Mae Nell Stephens, Catherine
Eads, and Willa Dean Ballard, on or about August 8 and 23, 1957, final separation
notices instead of layoff notices, thereby discouraging membership in, support and
activity on behalf of, the Union at a crucial period of its organizational efforts
amongst the Respondent's employees at its Guin, Alabama, plant, the Respondent
has engaged in unfair labor practices within the meaning of Section 8(a) (1) of the
Act.
(4) By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed by Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
(5) The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
(6) The evidence adduced at the hearing herein establishes that Respondent
interfered with the election in Case No. 10-RC-3933 and deprived employees of their
freedom of choice.
(7) The evidence adduced at the hearing herein does not establish that the
Respondent discriminately discharged employees William Kirk Cantrell, Melva Lou
Akers, Autie Franks, Florence Humbers, Adell May, Willie D. Morrow, Evelyn K.
Sandlin, Mae Nell Stephens, Catherine Eads, Willa Dean Ballard, and Laura Nell
Green, nor does it support the allegations in the consolidated complaints that the
Respondent laid off and subsequently provided less employment to Florence Caudle
and Jo Nell Warren, and failed and refused to reemploy Sue Seaborn at its Guin,
Alabama, plant.
[Recommendations omitted from publication.]