N. & W. Overall Co., Inc.

National Labor Relations Board - Board Decisions

Aug 4, 1943

51 N.L.R.B. 1016 (N.L.R.B. 1943)

In the Matter of N . & W. OvERALL COMPANY, INCORPORATED and
AMALGAMATED CLOTHING WORKERS OF AMERICA
Case No. C-2504.-Decided August 4 , 1943
DECISION
AND
ORDER
On January 13, 1943, the Trial Examiner issued his' Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter the respondent filed exceptions to the
Intermediate Report and a brief in support of its exceptions. The
Board has considered the rulings made by the Trial Examiner at the
hearing and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
Pursuant to notice, a hearing for the purpose of oral argument
was held before the Board at Washington, D. C., on February 18,
1943, at which the respondent was represented by counsel. On April
14, 1943, the Board issued its Decision and Order, finding that the
respondent had interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in the Act. Thereafter, on
May 28, 1943, the Board gave notice to the parties that, unless sufficient
cause to the contrary appeared, the previously issued Decision and
Order would be vacated and set aside for the purpose of further pro-
ceedings. Pursuant to' notice, a further hearing for the purpose of
oral argument was held before the Board at Washington, D. C., on
July 13, 1943, at which the respondent and the Union were represented
by counsel. A brief was thereafter filed with the Board by the Union.
On July 26, 1943, the Board, acting pursuant to Section 10 (d) of the
Act, vacated and set aside the Decision and Order of April 14, 1943.
The Board has considered the Union's brief. and has reconsidered the
Intermediate Report, the respondent's exceptions and brief, and the
entire record in the case, and hereby sustains the respondent's excep-
tions to the extent indicated below. In all other respects the Board
hereby adopts the findings and conclusions of the Trial Examiner.
51 N. L. R. B., No. 160.
1016
N. & W. OVERALL COMPANY, INCORPORATED 1017
The Trial Examiner has found that the respondent, by certain re-
marks made by Turner, its president, on November 10, 1942, and by
Gouldthorpe, one of its foreladies, in August 1942, interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act. Turner's remarks were made
during a conference with one of the Board's Field Examiners and in
the course of a discussion relating to the possible withdrawal of the
charge filed by the Union upon the respondent's posting a notice to its
employees that it would cease interfering with their union activities.
No employee of the respondent was present at the time, and there is
no evidence in the record that Turner's remarks were thereafter re-
peated to any 'of the respondent's employees: Under the circum-
stances, we do not believe that Turner's remarks interfered with, re-
strained, or coerced the respondent's employees in the exercise of the
rights guaranteed by the Act. Nor are we persuaded, on the'record
in this case, that Gouldthorpe's remarks, standing alone, constitute
interference, restraint, or coercion within the meaning of the Act.
We shall, therefore, dismiss the complaint.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the complaint against the respondent, N. &
W. Overall Company, Incorporated, Lynchburg, Virginia, be, and it
hereby is, dismissed.
CHAIRMAN MILLIS took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr. Anthony E. Molina and Mr. Jacob Blum, for the Board.
Mr. James H. Price and Mr. James D. Poag, of Greenville, South Carolina, for
the respondent.
STATEMENT OF THE CASE
Upon an amended charge duly filed on December 4, 1942, by Amalgamated
Clothing Workers of America, a labor organization herein called the Union, the
National Labor Relations Board, herein called the Board, by its Regional Director
for the Fifth Region (Baltimore, Maryland), issued its complaint, dated December
5, 1942, against N. & W. Overall Company, Incorporated, Lynchburg, Virginia,
herein called the respondent, alleging that the respondent had engaged in and
was engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (1) and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. Copies of the complaint and notices of
hearing thereon were.duly served upon the respondent and the Union.
In respect to the unfair labor practices, the complaint alleged in substance, that
the respondent since September 1, 1942, interfered with, restrained, and coerced
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its employees in the exercise of the rights guaranteed in Section 7 of the Act by
(a) urging, persuading, and warning its employees to refrain from union member-
ship and activity; (b) questioning its employees concerning such membership
and activity; (c) making disparaging remarks about the Union, -itsmembers, and
representatives ; and (d) threatening to keep the meetings and activities of the
Union under surveillance.
On December 14, 1942, the respondent filed its answer in which it denied engag-
ing in the unfair labor practices alleged in the complaint.
Pursuant to notice, a hearing was held on December 29 and 30, 1942, at Lynch-
burg, Virginia, before the undersigned, Samuel Edes, the Trial Examiner duly
designated by the Chief Trial Examiner. The Board and the respondent were
represented by counsel and participated in the hearing. The Union was not for-
mally represented. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was afforded all parties.
On December 29, 1942, at the opening of the hearing, counsel for respondent moved
to make the complaint more definite and certain in a variety of particulars. To
the extent that it required the identity of the persons alleged to have engaged in
activity chargeable to the respondent, the motion was granted by the undersigned,
and the particulars in that regard were furnished by counsel for the Board. On
December 30, 1942, prior to the conclusion of the Board's case and after the mat-
ter had been litigated in major part, counsel for the Board moved to amend the
complaint to allege in addition that, subsequent to the issuance of the complaint,
the respondent had further interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act by the conduct of
its counsel in interviewing and interrogating employee witnesses of the Board
in the presence of the respondent's president and various supervisory employees.
The undersigned granted the motion, with leave to the respondent to move for
such additional time as might reasonably be'necessary in order fully to meet the
issue presented by the amendment. No such motion was presented. On January
5, 1943, the respondent filed an amendment to its answer with the undersigned.
At the close of the Board's case the undersigned, without objection, granted a.
motion by counsel for the Board to conform the complaint to the proof adduced
at the hearing in minor particulars: At the conclusion of the hearing,"oral argu-
ment was had on the record before the undersigned. On January 5, 1943, the
respondent filed a brief with the undersigned.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, a Virginia corporation, is engaged at its plant in Lynchburg,
Virginia, in the manufacture of clothing. The respondent purchases annually
raw materials valued at approximately $1,000,000, of which approximately 75
percent are shipped to its Lynchburg plant from points outside the State of Vir-
ginia. Approximately 75 percent of the respondent's finished products, having a
total value of about $2,000,000, annually, are shipped by it to points outside the
State of Virginia.
The respondent admits that it is engaged in commerce within the meaning of
the Act.
H. THE ORGANIZATION INVOLVED
Amalgamated Clothing Workers of America is a labor organization affiliated
with the Congress of Industrial Organizations admitting to membership employees
of the respondent.
N. & W.. OVERALL COMPANY, INCORPORATED 1019
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
1. Background
The Union first attempted to organize the employees of the respondent in 1937.
At that time, according to L. W. Turner, president of the respondent, organiza-
tional efforts were also being made by a labor organization affiliated with the
American Federation of Labor. Turner testified that each of the competing
unions was advising the employees that they would not be permitted to retain
their jobs if they joined the other organizations, and that he, accordingly, posted
notices throughout the plant stating, in effect, that employment with the re-
spondent was not conditioned upon union membership. In addition, Turner
addressed the employees in the various departments of the plant. In these
speeches, according to Turner, he called the attention of the employees to the
notices which he had posted. However, Minnie Maddox, one of the employees,
testified that in addressing some 25-50 employees in her department Turner
declared that, "Sure as little apples and big apples grow on the same tree, if
we had a union [I] would close." Turner's memory as to the events in this
period was admittedly poor. At one point he testified : "I made a speech at the
time the notice was posted, but I couldn't tell you what was in the speech." As
indicated below, Turner admitted making a similar statement to Christine Huff-
man, an organizer of the Union, and Ralph, Winstead, a field examiner of the
Board, in 1942. In all the circumstances, the undersigned credits the testimony
of Maddox in this regard, and finds that Turner in 1937 made the statements in
his speeches to the employees substantially as testified to by Maddox 1
The effort to establish a labor organization among the respondent's employees
in 1937 proved unsuccessful.
2. The events of August-December 1942
In August 1942 the Union again sought to organize the employees of the re-
spondent. Circulars were distributed, employees were solicited, and meetings
held. Verna Herndon, an employee, testified that in September or October, as
nearly as she could place the time, she brought into the plant and showed some
of the girls in her department a circular announcing a union meeting That
day, according to Herndon, she was approached by her superior, Margaret Gould
thorpe, a forelady in charge of some 90 employees, and was asked whether she
planned to attend the union meeting When Herndon replied that she did not
know, Gouldthorpe declared : "Well, a union in here wouldn't do any good because
Mr. Turner would just close the plant down." Gouldthorpe denied having had
any such conversation. She testified that she did not even know of any union
activity until the day before she was called to testify. On further examination,
however, she admitted that she knew of the distribution of union circulars prior
thereto. In this connection, she testified at one point that she was aware of
the distribution of union circulars "only one time " At another point she indi-
cated there were "many [circulars] passed out." Gouldthorpe's testimony was
evasive and unreliable. The undersigned does not credit her denial of Herndon's
testimony. In all the cirumstances, the undersigned finds that Gouldthorpe
made the statement attributed to her by Herndon.
1The evidence as to the events occurring in 1937 was introduced by counsel for the
Board for the sole purpose of establishing a background against which the conduct of the
respondent in 1942 might properly be appraised. The finding of the undersigned, as to
the statement made by Turner in 1937 is limited to that purpose.
1020 DECISIONS OF ,NATIONAL LABOR RELATIONS BOARD
On November 10, 1942, Huffman, the union organizer, and Winstead, the Board's
field examiner, met with Turner, in regard to charges which had been filed with
the Board. During the course of this meeting, Winstead advised Turner that
he-had information to the effect that foreladies had told employees that the plaint
would shut down if they joined the Union. According to Huffman, Turner there-
upon stated: "I'll tell you [Huffman and Winstead] and I'll tell them [the fore-
ladies], that before I have the mess in there that they have downtown I will close
the slant down." Huffman testified that, upon inquiry, Turner stated that by
"mess" he meant "union." Turner admitted making such statement to H.,ffman
and Winstead. In addition, he did not deny stating to Huffman that he meant
"union" by the term "mess". He testified that he had no particular union in
mind' but that, in his view, the entire town was "demoralized" by strikes then
in effect and by elections then being conducted to determine the collective bar-
gaining representatives at various plants in Lynchburg . He testified that the
"whole picture" was the "mess" to which he was referring in his statement to
Huffman and Winstead. He stated at the hearing, "I can't stand that sort of
thing; have no idea of standing it." In all the circumstances, the undersigned
finds that Turner made the statement to Huffman and Winstead substantially
as testified to by Huffman.
On October 9, 1942, the record shows, three of the employees, Louise Rowland,
Batty Tedder, and Dorothy Carmichael, signed a statement setting out that on
the previous day Mary Wingfield and Lois Vaughan, foreladies, had stated to a
group of employees that they were "going to stand across the street of Odd Fellows
Temple and watch for all * * * employees who may go to a union meeting
scheduled for that night." The statement was signed at the request of Carmichael.
Substantially similar statements were signed by Rowland and Tedder on Deeem-
ber 2, 1£42, before Jewel G. Briggs, a field examiner of the Board. Rowland's
statement to Briggs set out, in addition, that in August, shortly after the first
'union meeting, Wingfield had advised a group of employees, "I know all the
names that have signed up, so it won't do you any good to sign those cards."
Rowland and Tedder admitted that they signed these statements, but-denied that
the contents of the statements were true. They testified that they were induced
to sign, the statements by Carmichael ; that Carmichael told them that she had
heard Wingfield and Vaughan make the declarations which were embodied in
the statements, that they did not themselves hear any such remarks, but that they
signed upon the assurance of Carmichael that there would be no "red tape"
involved and that their action would help the Union and result in improved work-
ing conititions. Carmichael denied offering Rowland and Tedder any such assur-
ances. She testified that Rowland was present and heard Wingfield state in
August that she knew who had signed union cards and that it would do the
employees no good to sign. She testified further that both Rowland and Tedder
were present and heard Wingfield make the statement in October regarding the
surveillance of a union meeting. Wingfield denied making the remarks attributed
to her by Carmichael, as did Gertrude Barnette and Grace Wright, the only other
employees identified by Carmichael as having been present. Carmichael's testi-
mony is open to serious question. As above indicated, the statement signed by
Carmichael, like the statements signed by Rowland and Tedder. set forth that Lois
Vaughan, a forelady, had also declared that she was going to keep the union
meeting under surveillance. At the hearing, Carmichael testified that one of the
employees in referring to a union, meeting characterized it as a "prayer meeting"
and that this caused Vaughan to laugh and to state that she thought she would go
2In this connection Turner testified that he hadLno obiection to "a proper union". He
defined such an organization as "one that'controls its membership." ' .
N. & W. OVERALL COMPANY, INCORPORATED 1021
to that meeting. This, Carmichael testified, was "all" that she heard Vaughan
say. At a later point, Carmichael testified that Vaughan stated more ; that she
declared that she would go to the meeting and see who attended. Thereafter,
Carmichael repeatedly and inconsistently altered her testimony as to what
Vaughan stated, testifying variously that Vaughan merely declared she thought
she would go to the meeting and that Vaughan went beyond this and declared
she would go and see who attended. Vaughan denied that she ever made any
such statement. The testimony of Henry Pearson, the machinist who, according
to Carmichael had referred to the union meeting as a prayer meeting, substan-
tially corroborated the testimony of Vaughan. In addition, there was no evidence
that either Rowland or Tedder were present or in a position to hear such remark
at the time it was purported to have been made. Rowland and Tedder, as above
indicated, denied hearing Vaughan make the declaration attributed to her by
Carmichael. Further, Carmichael, admitted that in securing the signatures of
Rowland and Tedder to the first statement made by them she asked them to sign,
as she put it, to "help me get a union". Although Rowland and Tedder were not
impressive witnesses and, their testimony does not appear to be entirely reliable,
the record does not, in the view of the undersigned, permit full acceptance of
Carmichael's testimony. Wingfield and Vaughan may well have made remarks
something of the kind set out in the statements signed by Rowland and Tedder
and attributed to them by Carmichael. The truth would appear to fall some-
where between the outer limits of the testimony adduced at the hearing. Sub-
stantial evidence, however, requires more than speculation. In all the circum-
stances, the undersigned finds that there is no substantial evidence to support
a finding that Wingfield or Vaughan made the statements attributed to them
by Carmichael and set out in the Rowland-Tedder statements.
On December 28, 1942, the day before the hearing in this case, about 10-12
employees were separately called into the office of Turner and there questioned
by the respondent's attorneys, who had just arrived in Lynchburg and had scant
knowledge of the matter, as to whether they had ever had conversations with
any of their supervisors in regard to the Unions, whether they had ever been
threatened or intimidated in regard to union organization, and the like. During
the course of these interviews, Turner and various other supervisory employees
were present. They did not, however, take any part in the questioning. Ac-
cording to the undisputed testimony, the employees were advised by the respond-
ent's attorneys that the respondent was interested only in discovering the truth
of the matter alleged in the complaint, that it desired the employees to tell them
the truth even if it was prejudicial to the respondent' s interests , and that neither
this nor the fact that they might be members of the Union would in any way
affect their position with the respondent. On one occasion, the attorneys, be-
lieving that one of the employees intended to implicate Turner, asked Turner
to leave the room during the interview. At least two employees, who had been
subpenaed by the Board, indicated, while being interviewed, that they did not
intend to honor the subpenas. They were advised by the respondent's counsel
that it was their duty to obey the subpenas. Counsel for the respondent testified
that the sole purpose of interviewing these employees was to enable the re-
spondent to prepare its case, that the allegations of the complaint were so
general in character that it was not clear to them what the respondent would be
called upon to meet at the hearing, that they_ had interviewed the supervisory
staff of the respondent without much success, and that they had, therefore, under-
taken to interview those employees whose names had been mentioned during the
interviews with the supervisors or who they otherwise believed might be of
assistance in the preparation of the case.
1022 DEi0ISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Concluding findings
The undersigned finds that the respondent, by indicating through its fore-
lady, Margaret Gouldthorpe, and through its president, L. W. Turner, that the
successful establishment of a union at the plant and the engagement by the
employees in union activity would result in a shutdown of its plant, has inter-
fered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
For reasons sufficiently indicated above, the undersigned finds that there is
no substantial evidence to support a finding that the respondent has through any
activity of the foreladies, Mary Wingfield and Lois Vaughan, interfered with,
restrained, and cocerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
The undersigned further finds that the respondent has not through the con-
duct of its attorneys in interviewing employees, as set forth above, interfered
with, restrained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act. The facts disclose that this is not a situation
where in the guise of preparing its defense to a complaint the respondent or its
attorneys went beyond the necessities of such preparation to pry into matters of
union membership, to discuss the nature or extent of union activity, to dissuade
employees from joining or remaining members of a union, or otherwise to inter-
fere with the statutory right to self-organization.' The record here discloses
only a sincere and genpine effort on the part of the respondent's attorneys to
discover facts within the limits of the issues raised by the complaint for the sole
purpose of preparing the respondent's case for trial. This, counsel were privileged
to do.
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
Since it has been found that the respondent has engaged in unfair 1^bor
practices, it will be recommended that it cease and desist therefrom and sake
certain affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Amalgamated Clothing Workers of America is a labor organization, within
the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the respondent has engaged
in and is engaging in unfair labor practices, within the meaning of Section
8 (1) of the Act. '
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
I See National Labor Relations Board v. Stone, 125 F. (2d) 752 (C. C. A. 7) ; F. W.
Woolworth Co. v. National Labor Relations Board, 121 F.
of Richard F. Klme, 39 N. L. R. B. 1047.
(2d) 658 (C. C. A. 2) ; Matter
N. & W. OVERALL COMPANIY, INCORPORATED 1023
4. The respondent has not engaged in unfair labor practices on account of
any conduct on the part of Mary Wingfield and Lois Vaughan or on account of
any conduct on the part of its attorneys.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent, N. & W. Overall Company, Incor-
porated, Lynchburg, Virginia, and its officers, agents, successors, and assigns.
shall :
1. Cease and desist from in any manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organization, to form,
join, or `assist labor organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for the purposes
of collective bargaining or other mutual aid and protection, as guaranteed in
Section 7 of the National Labor Relations Act.
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act:
(a) Post immediately in conspicuous places in its plant at Lynchburg, Vir-
ginia, and maintain for a period of at least sixty (60) consecutive days from
the date of posting, notices stating: (1) that the respondent will not engage
in the conduct from which it is recommended that it cease and desist in para-
graph 1 of these recommendations; and (2) that the respondent's employees
are free to become or remain members of Amalgamated Clothing Workers of
America ;
(b) Notify the Regional Director for the Fifth Region in writing within
ten (10) days from the date of the receipt of this Intermediate Report what
steps the respondent has taken to comply herewith.
It is further recommended that unless on or before ten (10) 'days from the
receipt of this Intermediate Report, the respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations,
,the National Labor Relations Board issue an order requiring the respondent
to take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended, effective October 28,
1912-any party may within fifteen (15) days from the date of the entry of the
order transferring the case to the Board, pursuant to Section 32 of Article Ii
of said Rules and R^gulations, file with the Board, Shoreham Building, Wash-
ington, D. C., an original and four copies of a statement in writing setting forth
such exceptions to the Intermediate Report or to any other part of the record
or proceeding (including rulings upon all motions or objections ) as he relies
upon, together with an original and four copies of a brief in support thereof.
As further provided in said Section 33, should any party desire permission to
argue orally before the Board, request therefor must be made in writing to
the Board within ten (10) days from the date of the order transferring the
case to the Board.
SAMUEL EDEs,
Trial Ewarniner.
Dated January 13, 1943.