Peerless Woolen Mills

National Labor Relations Board - Board Decisions

Sep 23, 1949

86 N.L.R.B. 82 (N.L.R.B. 1949)

In the Matter of PEERLESS WOOLEN MILLS and TEXTILE WORKERS
UNION OF AMERICA, CIO
Case No. 10-0-20-39.-Decided September 23, 1949
DECISION
AND
ORDER
On March 23,1949, Trial Examiner James H. Eadie issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in unfair labor practices, and recom-
mending that the complaint be dismissed in its entirety, as set forth
in the copy of the Intermediate Report attached hereto. Thereafter,
the General Counsel filed exceptions to the Intermediate Report and
a supporting brief; the Respondent also filed a brief in support of the
Intermediate Report.'
The Board 2 has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, except as hereinafter modified.
1. We cannot agree with our dissenting colleague that the prepon-
derance of the evidence warrants a finding that Respondent's invoca-
tion of its rule against unauthorized collections during working hours
was advanced as a mere pretext, and that the Respondent discrimina-
torily discharged Phillips for his union activity. On the contrary, we
believe and find, like the Trial Examiner, that there was no discrimina-
tory application of the rule, and that Phillips was properly discharged
for violating it.
The Board has long held that an Employer may, without violating
the Act, forbid collections during working hours whether or not spon-
' The General Counsel ' s motion to dismiss the Respondent ' s brief on the ground that it
was not timely filed is hereby denied.
' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel [ Chair-
man Herzog and Members Reynolds and Gray].
86 N. L. R. B., No. 19.
82
PEERLESS WOOLEN MILLS 83
sored by or on behalf of a union. The Trial Examiner found that there
was in existence and in effect, at the time of Phillips' discharge, a rule
stating in substance that no collection shall be taken up in the weave
room without permission of the weave room foreman. The Trial Ex-
aminer found further that the weave room employees generally either
had knowledge of the rule or of the customary procedure pertaining
thereto, and that there was no evidence that the Respondent had spe-
cific knowledge of any prior unauthorized collections. When the Re-
spondent first learned of Phillips' unauthorized collection it treated
him no differently than other known violators. The only other person
whom Supervisor Hawkins knew had assisted Phillips in the collec-
tion was employee Davis.3 Hawkins gave both Phillips and Davis an
opportunity to remedy their breach of the rule by turning over the
funds collected without authorization and commingling them with
the authorized collection. Davis, also a known union adherent, who
had already turned over his collection to Phillips and therefore did
not have it in his possession, took advantage of this opportunity by
admitting his error and promising not to violate the rule in the future.
On the other hand, Phillips refused to remedy his breach whereupon
-Supervisor Hawkins. properly exercised his right to enforce the rule
by discharging Phillips for its violation.
2. In determining whether President Hutcheson's statement to a
committee of employees that ". . . we don't recognize any organiza-
tion and, by God, we never will" was a violation of Section 8 (a) (1)
of the Act, we must look to the surrounding circumstances and the
context in which it was made. The day following Phillips' discharge
a committee of employees headed by W. A. Swafford, president of the
Union, went to the mill office to protest the discharge. In the absence
of President Hutcheson, there was some discussion with another Re-
spondent's official as to whether the Respondent recognized the Peer-
less Woolen Mills Workers Association. When President Hutche-
son arrived, he was told that Swafford "had come in a very belligerent
and antagonistic attitude." At that time President Hutcheson asked
Swafford whether he had called him "the biggest goddam liar in the
United States." Although Swafford denied this, he did say that "any
man that said the Peerless Woolen Mills don't recognize an organiza-
tion is a damn liar." It was then that President Hutcheson made the
alleged violative statement, prefacing it with the following : "Swaf-
ford, I don't give a goddam what union or church or what organization
you people want to join. It's your privilege." Viewed in the context
of this heated argument and in the light of the simultaneous assurance
3 Phillips refused to disclose to Hawkins the names of the other employees who had
assisted him.
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the employees of their privilege to belong to any union or organiza-
tion, we are of the opinion, contrary to our dissenting colleague, that
the statement may not reasonably be regarded as a "fixed determination
never to recognize any labor organization as its employees' bargaining
representative." Under these circumstances, such statement did not
reasonably tend to discourage and restrain the employees in the exer-
cise of their self-organizational rights within the meaning of Section
8 (a) (1) of the Act.
3. We agree with our dissenting colleague as to the coercive nature
of Foreman Green's statement to employee Beasley. However, we also
agree with the Trial Examiner, and in accord with Board precedents,
that this isolated statement, standing alone, is insufficient to warrant a
finding of interference, restraint, and coercion in violation of the Act.4
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint herein against
Peerless Woolen Mills, Rossville, Georgia, be, and it hereby is, dis-
missed.
CHAIRMAN HERZOG, dissenting :
With great respect for my colleagues' views, I must record dis-
agreement with the finding of the majority that the Respondent did
not discriminatorily discharge employee Ottie B. Phillips. I further
believe, unlike them, that Respondent violated Section 8 (a) (1) of the
Act by President Hutcheson's statement to a union committee and by
Foreman Green's warning to employee Beasley.
1. My colleagues, in agreement with the Trial Examiner, find that
the Respondent discharged Phillips for violation of a rule forbidding
unauthorized collections on company time. The evidence shows that
this rule, limited to the weave room, was promulgated by the weave
zoom foreman on his own initiative. For approximately 4 years before
Phillips' discharge, the rule had not been publicized and consequently
many employees, including Phillips, had never heard of it. The Re-
spondent tolerated overt violations without taking disciplinary action
against violators, including, significantly, the very four employees who
assisted Phillips in his collection and who were equally guilty with
him in violating the rule. In contrast to the Respondent's drastic
action in discharging Phillips, an old employee whose active union
leadership was well known to the Respondent, it took no action against
4 Matter of Sunray Oil Corporation, 82 N. L. R. B. 942. Matter of Rice-Stir of Arkansas,
Inc., 79 N. L. R. B. 1333 ; Matter of Goldblatt Bros ., Inc., 77 N. L. R. B. 1262.
PEERLESS WOOLEN MILLS 85
other known violators. I believe that the Respondent's invocation of
this long dormant rule to discharge Phillips was merely a pretext.
I am satisfied that the real reason for Phillips' discharge was his
refusal to pool the Union's collection with that sponsored by the Re-
spondent. To his foreman, Sumner Hawkins, this apparent insistence
on a separate union charitable fund meant that Phillips was encourag-
ing the separation of the weave room into union and nonunion em-
ployees, a situation that Hawkins was determined to prevent .5 It was
for that reason that Hawkins discharged Phillips, and not because
of the alleged violation of a rule. This conclusion is strengthened,
not weakened, by the different treatment accorded Davis, the employee
who apologized for having engaged in a lawful concerted activity.
2. The majority also find that President Hutcheson's statement to
a committee of employees protesting Phillips' discharge that "we
don't recognize any organization, and, by God, we never will" did not
violate Section 8 (a) (1) of the Act. I disagree. Whatever the prov-
ocation, such a statement from the Respondent's top official, indicat-
ing as it did a fixed determination never to recognize any labor or-
ganization as its employees' bargaining representative, was bound to
discourage and restrain those employees in their organizational activi-
ties, in violation of Section 8 (a) (1).e I find no merit in the Re-
spondent's contention that the statement was privileged under Section
8 (c) of the Act. It was not an expression of "views, argument, or
opinion," but announced an intention to follow an unlawful course of
conduct toward employees who desired the benefits of self-organization.
3. In view of the foregoing, Foreman Green's statement to employee
Beasley that "If you care anything about your job you won't fool with
the Union" was not an isolated one. I would therefore also hold it to
have been a violation of Section 8 (a) (1).
INTERMEDIATE REPORT
Mr. Morgan C. Stanford, for the General Counsel.
Gleason d Painter, by Mr.. Frank Gleason, of Rossville, Ga., and Mr. Frank
A. Constangy, of Atlanta, Ga., for the Respondent.
Mr. M. W. Denton, of Chattanooga, Tenn., and Mr. W. A. Swafford, of Rossville,
Ga., for the Union.
5 Thus Hawkins told employee Davis, who participated with Phillips in making the
collection, that : ". . . he did not have any intention of putting up with their [Union]
activities . . . he didn ' t intend . . . the weave shop to be separated into union and
non-union."
ON. L. R. B. V. Illinois Tool Works, 153 F. (2d) 811 (C. A. 7), enfg. 61 N. L. R B. 1129;
Matter of Federal Engineering Company, Inc., 60 N. L. R. B. 592, enforced as modified, 153
F. (2d) 233 (C. A. 6) ; Matter of American Book-Stratford Press, Inc., 80 N. L. R. B. 914;
Matter of Goldblatt Bros ., 77 N. L. R. B. 1262.
867351-50-vol. 86-7
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
STATEMENT OF THE CASE
Upon an amended charge duly filed by Textile Workers Union of America,
CIO, herein called the Union, the General Counsel of the National Labor Rela-
tions Board; by the Regional Director for the Tenth Region (Atlanta, Georgia),
issued an amended complaint, dated November 23, 1948, against Peerless Woolen
Mills, herein called the Respondent, alleging that the Respondent had engaged
in and was engaging in unfair labor practices within the meaning of Section 8
(1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, herein called the Act, and Section 8 (a) (1) and (3) and Section
2 (6) and (7) of the Labor Relations Act of 1947, 61 Stat. 136, herein called the
amended Act. Copies of the amended complaint, the amended charge and
notice of hearing were duly served upon the Respondent and the Union.
With respect to the unfair labor practices, the amended complaint alleges in
substance: (1) That the Respondent discharged Lonnie M. Holloway on July
25, 1946, Mac A. Shambaugh on August 26, 1947, and Ottie B. Phillips on April
13, 1948, and has at all times since failed and refused to reinstate them ; (2)
that the Respondent discharged said Holloway, Shambaugh, and Phillips, and
has since failed and refused to reinstate 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 purposes of collective bargaining and
other mutual aid and protection; and (3) that the Respondent from on or
about May 1, 1946, by certain specified acts interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of
the Act and the same section of the amended Act. In its answer, duly filed,
the Respondent admitted the jurisdictional allegations of the complaint, but
denied the commission of any unfair labor practices.
Pursuant to notice, a hearing was held at Chattanooga, Tennessee, from
November 30 to December 8, 1948, inclusive, at Chicago, Illinois, on January
1.3, 1949, and at Atlanta, Georgia, on January 24, 1949, before the undersigned
Trial Examiner. The General Counsel and the Respondent were represented
by counsel, and the Union by its representatives. Full opportunity to be heard,
to examine and cross-examine witnesses and to introduce evidence bearing on
the issues, was afforded all parties.
At the opening of the hearing, the General Counsel moved to amend the
amended complaint by adding the name of Tom Green to the paragraph in which
specific acts of interference were alleged. The motion was granted. Also at
the opening of the hearing, the Respondent moved to dismiss certain allegations
of the amended complaint upon grounds set forth in Section 10 (b) of the
amended Act? Ruling on the motion was reserved. Since it appears from the
undisputed evidence that the original charge and the amended charges, per-
taining to the allegations of unfair labor practices in the amended complaint,
were filed and served within the period of 6 months, either from August 22, 1947,
the effective date of the amended Act, or from the date of the alleged unfair
labor practice, the undersigned believes the Respondent's motion to be without
merit. Accordingly, the motion is hereby denied.
1 The General Counsel and his representative at the hearing are referred to as the
General Counsel, and the National Labor Relations Board. as the Board.
2 Before the hearing the Respondent made a formal motion to dismiss under Section 10
(b). The motion was referred to Trial Examiner Sidney Lindner for ruling. By order
dated October 21, 1948, the Trial Examiner denied the motion "without prejudice to its
renewal at the hearing, if copies of the charges were not served on the Respondent within 9
months after August 22, 1947."
PEERLESS WOOLEN MILLS 87
At the close of the General Counsel's case the Respondent moved separately
to dismiss the amended complaint as to Lonnie M. Holloway, Mac A. Sham-
baugh and Ottie B. Phillips. Ruling was reserved in the cases of Holloway and
Shambaugh, and denied in the case of Phillips. The Respondent at that time
also made separate motions to dismiss portions of the amended complaint which
alleged interference, restraint, and coercion. One of such motions was granted
on the other motions either ruling was reserved or they were denied.
At the close of the whole case, the Respondent renewed the motions made at
the close of the General Counsel's case. Motions to dismiss the cases of Hollo-
way and Shambaugh were granted. Ruling was reserved on the motion to dis-
miss in the case of Phillips. All but three of the Respondent's motions to
dismiss allegations of interference, restraint, and coercion were granted.
Ruling was reserved on those three motions and on the Respondent 's general
motion to dismiss the amended complaint as a whole for lack of proof. Motions
upon which ruling was reserved are disposed of as hereinafter indicated. The
General Counsel moved to conform the pleadings to the proof. The motion was
granted without objection.
All parties were afforded an opportunity to file briefs or proposed findings of
fact and conclusions of law, or both. The Respondent has filed a brief with
the Trial Examiner.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a Georgia corporation, maintaining its principal office and
place of business at Rossville, Georgia, where it is engaged in the manufacture,
sale, and distribution of woolen piece goods and roll cloth.
In the course and conduct of its business operations at its Rossville plant and
at all times material herein, the Respondent purchases annually raw materials,
consisting principally of wool and having a value in excess of $1,000,000. Of
this amount approximately 90 percent was purchased outside of the State of
Georgia and shipped in interstate commerce to the Respondent's plant at Ross-
Ville, Georgia. The Respondent manufactures, sells and distributes finished
products, consisting principally of piece goods and toll cloth and valued annually
in excess of $1,000,000. Of this amount approximately 90 percent was sold and
shipped to customers outside of the State of Georgia.
At the hearing, the Respondent admitted that it is engaged in commerce within
the meaning of the Act and the amended Act.
II. THE ORGANIZATION INVOLVED
Textile Workers Union of America, CIO, is a labor organization which admits
to membership employees of the Respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The discharge of Ollie B. Phillips
Phillips was employed intermittently by the Respondent since about 1924, and
at the time of his discharge on April 13, 1948, was a weaver on the.second shift
under Second Hand Sumner Hawkins.
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About 1932 or 1933 Phillips joined the American Federation of Labor and was
active as a picket when that union engaged in a strike against the Respondent.
Phillips rejoined the American Federation of Labor about 1943 and became
President of its local union. About April, 1947, the Union (CIO) commenced
organization of the Respondent 's employees . Phillips , who became a member
on May 10, 1947 , was one of the most active employees in the organizational efforts.
At least two of the early meetings of the Union were held at Phillips' home.
Circulars announcing that fact were distributed in front of Respondent 's plant.
At one of the early meetings Phillips was elected temporary chairman of the
Union. Later he was elected second vice president and W. A. Swafford, also
an employee in the Respondent ' s weave room on the second shift, was elected
president. Commencing about August 1, 1947, and continuing until about April
1, 1948, Phillips distributed circulars , approximating 22 in number , to employees.
at the gate of Respondent's plant. Distribution took place during the change
in shifts, and Phillips at times gave circulars to supervisory employees, including
,Hawkins and James Watters,. foreman over the weaving department. At the
time of and for some time before his discharge, Phillips while at work in the
plant wore a button designating him an adherent of the Union . He also served
on the Union 's grievance committee which protested to management the dis-
charges of several employees.
At some time before April 13, Phillips was appointed chairman of the Union's
Welfare Committee by Swafford. On April 13 Swafford directed Phillips as
chairman of that committee to take up a collection for flowers in the weaving
department for an employee's father-in-law who had died. Phillips delegated
about four employees in the weave room to assist him in the collection. He
personally solicited contributions from about 18 employees who worked in the
near vicinity of his looms and not over 60 feet away, and he returned to his
looms from time to time in order to check on his work. The four employees who
assisted Phillips turned over to him the money they had collected. Employees
were solicited regardless of their membership or nonmembership in the Union.
The taking up of the collection required about 21/2 hours, or from about 6 to
8: 30 p. m.
At about the times mentioned above or shortly after, employee Mary Phillips,
a sister-in-law of Ottie Phillips, also solicited contributions for the same cause
from employees in the weave room. She had been designated to make the col-
lection by Second Hand Hawkins, in accordance with plant custom and a rule of
the Respondent which will be hereinafter discussed. After Mary Phillips com-
pleted the collection, she turned over the money to Hawkins. Upon being ques-
tioned by Hawkins as to the reason for the collection being smaller than usual
in such cases, she told him about the Union's collection. Although she refused
to name the person responsible for that collection, she told Hawkins to ask
employee Cecil Davis about it 3 Thereafter Hawkins spoke to Davis and learned
from him that Ottie Phillips was in charge of the Union's collection.' After his
conversation with Davis and at about 10 p. rn., Hawkins went to Phillips and
asked him to report to his desk. At the time, Phillips' looms were stopped and
he was talking to weaver Fred Bonner.' About 15 minutes later Phillips went
3 Davis was one of the four employees who assisted Ottie Phillips in the Union's
-collection.
& During the above conversation , Davis stated in substance that he knew he was violat-
ing the Respondent 's rule concerning collections and promised not to do it again.
5It appears that Phillips had finished with the collection at the above time. Phillips
testified that he kept his looms running while he solicited employees.
PEERLESS WOOLEN MILLS 89
to Hawkins' desk. Second Hand John Houston was present during the ensuing
conversation between Hawkins and Phillips. Concerning the conversation
Phillips testified as follows :
Q. What happened after you got over to Mr. Hawkins' desk?
A. He sat down and told me to sit down too and then he talked to me.
I sat down and he said, "0. B., have you been taking up collections in here?"
I said "Yes, sir, three or four or five of them."
He says "Who are they?"
I said "Well, I ain't calling anybody's name because I don't do that."
He said "Why, if you know who they are, why you know who they are."
I said "I am not calling anybody's name who helped me." I said, " I did
take up a collection."
Q. What did Mr. Hawkins say then?
A. He said "Well, didn't you know it was against the rules to take up a
collection in the mill during working hours?"
I said "No, I didn't." I said "When did that happen-when did that
take effect?" I said "That is the first I ever heard of it."
A. I told him, I says, "Well, I don't break company's rules or other rules
if I know anything about it that I know of. I don't break the laws, either
that I know of."
Q. Then what happened?
A. He said "Well, I think you are mighty dirty to take up a collection and
not get my permission." I told him I didn't know I had to do it.
Q. Was anything mentioned about the union at that time?
A. Yes. He went on and talked. He said "I don't have to put up with
a lot of talk from you union guys here." He said "I am going to have to
put a stop to it. You have been taking up collections under union activities
and I am going to put a stop to it. I am not going to have it out of you or
nobody else".
* * * * * * *
A. He said he thought it was mighty dirty of me and he wanted me to
put my collection in with one that he had. I said "Well, I will see what
W. S. Swafford, the President of the Local, has to say about it. If he tells
me to put it in, I will ; if he don't, why I won't."
Q. What happened then?
A. Summer said "No, I am not going to have no separation between the
help in here"-talking about the union and the non-union employees. He
° said "Separation, I am not going to put up with it." He said "We have all
got to take up a collection as a whole and do other things that way."
Q. Then what did you do?
A. Well, along about that time somebody came up a little ways from us
and motioned for Summer Hawkins and he got up and went to him, and
when he got up and walked over to where he was at, why I went on back
to my looms.
The following testimony of Hawkins concerns the same conversation :
Q. What did you observe about him when he came up to the desk?
A. Well, I just asked him if he had left his looms to take up a collection
and he said he did. I said, "Why, don't you know it is against the rules for
you to stop your looms and take a collection?"
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. He said yes. I said "You well understand our procedure for taking up
these collections," and he said yes. I said "Well, don't you think you have
done wrong?" He said "I don't know whether I have done wrong or not. I
will ask W. A. Swafford. I had taken up this collection for him and I will
see him about it."
Q. Then what did you say?
A. Well, I explained to Mr. Phillips why we had such rule there that we
shouldn't take up from a little group over here and a group over here ; we
all put our offering together, such as a love offering like that and let it go
as one in the weave room.
Q. Was there any further conversation from Phillips with respect to giving
you the money?
A. Yes. He stated "Well, I'll see W. A. and if he wants me to give you
the money I will".
Q. What did you say?
A. I told him I didn't want the money. "I didn't ask you for the money."
Q. Then what happened?
A. Then Mr. Beasley, the second hand from the machine shop walked up
to my desk. I'd say six or eight feet, then he kept standing there and I
just turned, making a half-quarter turn and said, "Mr. Beasley, I am very
busy. I would like for you to see me later" and turned back to take up with
Mr. Phillips and he walked off-gone.
Houston testified substantially the same as did Hawkins in this connection.
However, Houston testified that Phillips made the statement, "I wouldn't know
for sure about the rules," when quesioned by Hawkins e
The undersigned credits Phillips' version of the above conversation. Houston
at first testified that Phillips stated that he was not sure about the rules and
later testified that Phillips admitted knowledge of the rules. To this extent
Houston's testimony is in conflict with that of Hawkins. Moreover, concerning
his conversation with Hawkins that same night, related above, Davis testified
credibly that Hawkins stated that he would not permit the weave room to be
divided into union and non-union factions and that Hawkins asked him if he
would be willing to add his collection to the one taken up with Respondent's
permission. Since Hawkins asked Davis to turn over his collection, it logically
follows that he would have made the same request of Phillips.
At about 10: 45 p. in. Hawkins again came to Phillips' place of work. He
told Phillips, "I would rather for you to check out and quit." Phillips replied,
"I didn't come here to quit. I came here to work. I am not quitting until
quitting time and I am not going to stop them looms until then and you better
not." Hawkins then told Phillips that he was discharged! Phillips disre-
garded Hawkins' statement and continued his work until the close of the shift
or until 11 p. in. W. A. Swafford, president of the Union, spoke to Hawkins
e Houston also testified that Phillips admitted knowledge of the rules.
Phillips testified credibly to the above conversation. Concerning the conversation
at the time of the discharge, Hawkins testified as follows :
And told Phillips, I says, "I think since you have taken-you have just taken the
attitude of not having any notice for the company rules and regulations and referred
to Swafford as your overseer, or foreman, I think it would be best for you to get
through." He looked up at the clock and he said, "I have thirty minutes to work
yet." I said "In case you didn't understand me, you are discharged. You don't have
any job. The best thing for you to do is just cut your motors off and go on out," and
he just looked at me with a kind of sarcastic grin and didn't say anything.
PEERLESS WOOLEN MILLS 91
before the end of the shift and asked him to reconsider Phillips' discharge.
Hawkins refused to reinstate Phillips.
Conclusions
The Respondent contends that Phillips was discharged for stopping produc-
tive machinery and for violation of a rule which prohibited unauthorized col-
lections in the weave room.
The undersigned finds that the Respondent at the time of Phillips' discharge
had in effect in the weave room a rule prohibiting the taking up of collections,
unless approved by the foreman. James Watters, foreman over the weaving
department, testified credibly that about late 1942 he posted a notice on the
main bulletin board in the weave room, stating in substance . .. "no one shall
be allowed to take up collections in this room unless a committee of three
weavers and two loom fixers have made inquiries and a petition presented to
me and I would sign it and appoint someone to go around and take up the
collections."; that the notice remained posted for about 1i/ years; and that the
notice was destroyed when the bulletin board was removed. Employees Winnie
Owens and Margaret Fitzgerald, witnesses for the Respondent, testified credibly
that they saw the rule posted. Although witnesses for the General Counsel,
including Phillips, testified that they did not see such a rule posted and were
never told of it by any supervisory employee, the testimony of Davis and em-
ployees Floyd Ladd and William Oswalt indicates that the employees generally
either had knowledge of the rule or of the customary procedure. It is undis-
puted that numerous collections were taken up in the weave room which had
been authorized by a supervisor, and that such collections were made exclusively
by employees who were paid on an hourly rate basis and who were not weavers."
The General Counsel adduced evidence showing that in several instances em-
ployees in the weave room were solicited to take chances on punch boards, that
employees in the weave room sold various articles during working hours and
that the employees responsible for these activities were not reprimanded by man-
agement. Phillips testified that he made several collections for which he had not
obtained permission from any supervisory employee in the early part of 1948
and that he was not reprimanded at the time. Swafford also testified that in
January 1948 he took up a collection for flowers without authorization from
a supervisory employee and that he was not criticized or reprimanded. The
undersigned does not believe that this evidence is sufficient to show a discrimina-
tory application of the rule. There is no evidence that the Respondent had
knowledge that unauthorized collections had. been made. Assuming that the
Respondent did have knowledge of such collections, nevertheless the record con-
clusively shows that the Respondent knew of Phillips' and Swafford's adherence
to the Union at the time mentioned. The selling of articles by employees or
the solicitation of punch board chances clearly are distinguishable from collec-
tions for flowers or for other similar purposes.
B Weavers were paid on a piece -rate basis . Respondent contended , in effect, that weavers
were not permitted to act as collectors or designated as such for the reason that their looms
needed constant attention while running or defective cloth would result. Although the
evidence shows that weavers were permitted at times to leave their looms unattended for
various purposes , such as going to the rest room, I believe after consideration of the record
as a whole that the Respondent 's contention has merit . Necessarily weavers had to leave
their looms unattended at times , unless the Respondent provided relief or shut down the
looms, thereby losing production . Under the circumstances it appears reasonable that
the Respondent would not permit weavers to take up collections which would require an
hour or two of their time when other employees were available for the purpose.
92 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While it is apparent that the Respondent did not publicize the above rule to any
great extent and was lax in its enforcement, nevertheless on all the evidence
the undersigned is convinced and finds that the General Counsel has failed to
prove that Phillips was discharged because of his membership in or activities
on behalf of the Union, or because of his concerted activities with other employees.
It is undisputed that the Respondent had knowledge of his adherence to the
Union and that Hawkins mentioned the rule to Phillips at the time of his dis-
charge. While the conversation found and related above indicates that Hawkins
was concerned about possible separation of the weave room employees into Union
and non-Union groups and about Phillips' refusal to turn over his collection
without consulting Swafford, Phillips was discharged for violation of the rule.
The Respondent's motives in discharging Phillips are not free from suspicion,
particularly in view of the fact that he was one of the most active adherents
of the Union. The penalty of discharge appears drastic, since Phillips at the
time of discharge stated that he did not have knowledge of the rule. However,
the evidence strongly indicates that Hawkins would not have discharged Phillips
if he had acknowledged his wrong or agreed to pool the collection. This is
supported by the case of Davis who was not discharged by Hawkins after he
admitted he was wrong and promised not to violate the rule again.
Accordingly, the undersigned finds that the Respondent did not discrimina-
torily discharge Phillips, and that the Respondent did not discriminate against
a union employee for taking up a collection on the job while allowing nonunion
employees to take up collections on the jobs, as alleged in the complaint.
B. Alleged interference, restraint, and coercion
On the day following the discharge of Phillips, related above, a committee of
the Union, including Swafford and Ladd, met with management to protest
Phillips' discharge. It is the uncontradicted testimony of Swafford that John L.
Hutcheson, president of Respondent, made the following statement:
Swafford, I don't give a good . . . what Union or church or what organiza-
tion you people want to join. It is your privilege. . . . We hire who we want
to down here and we fire who we want to down here and we are damn sick
and tired of having to explain to you every time we fire somebody. .. . We
don't recognize any organization and, . . . we never will.
The undersigned does not believe that the above statements of Hutcheson con-
stitute interference, restraint, or coercion within the meaning of the Act or the
amended Act, and so finds. They do not contain any threat of reprisal or promise
of benefit.
Othell Beasley, a "folder" operator in the Respondent's finishing department,
worked under Foreman Tom Green. Beasley started working for Respondent on
March 19, 1943. At sometime shortly after he was hired, Beasley accosted Green
and asked him if he planned to attend a meeting of the Union which had been
scheduled. Beasley also stated, "I think the Union would be a pretty good thing,
don't you?" Green replied, "If you care anything about your job you won't fool
with the Union."
Considering the questions propounded by Beasley immediately before Green's
statement, it loses some of its force as an implied threat. It may be considered
9 Hutcheson did not appear as a witness . Ladd testified substantially the same as did
Swafford concerning the above conversation . However, Ladd testified that Hutcheson
stated that he was "not recognizing any Union."
PEERLESS WOOLEN MILLS 93
more in the nature of an expression of opinion. In any event it was a single
isolated incident of the type that the Board has held to be insufficient to warrant
a finding of interference, restraint, or coercion.10
Accordingly, the undersigned finds that by the above statement of Green the
Respondent did not interfere with, restrain, or coerce its employees.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operation of the Respondent's business described in Sec-
tion 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 not engaged in unfair labor
practices, it will be recommended that the amended complaint be dismissed in
its entirety. 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. Textile Workers Union of America, CIO, is a labor organization within the
meaning of Section 2 (5) of the Act and the same section of the amended Act.
2. By discharging Ottie B. Phillips, the Respondent has not engaged in unfair
labor practices.
3. The Respondent has not interfered with, restrained, or coerced its employees
within the meaning of the Act or the amended Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law the
undersigned recommends that the amended complaint against the Respondent,
Peerless Woolen Mills, be dismissed.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 1948, any party may,
within twenty (20) days from the date of service of the order transferring the
case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file
with the Board, Washington, D. C., an original and six copies of a statement in
writing setting forth such exceptions to the Intermediate Report and Recom-
mended Order or to any other part of the record or proceeding (including rulings
upon all motions or objections) as he relies upon, together with the original and
six copies of a brief in support thereof ; and any party may, within the same
period, file an original and six copies of a brief in support of the Intermediate
Report and Recommended Order. Immediately upon the filing of such statement
of exceptions and/or briefs, the party filing the same shall serve a copy thereof
upon each of the other parties. Statements of exceptions and briefs shall desig-
nate by precise citation the portions of the record relied upon and shall be
legibly printed or mimeographed, and if mimeographed shall be double spaced.
Proof of service on the other parties of all papers filed with the Board shall be
promptly made as required by Section 203.85. As further provided in said Sec-
tion 203.46 should any party desire permission to argue orally before the Board,
10 In the Matter of Rice -Stio of Arkansas , Inc., 79 N. L. R . B. 1333.
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
request therefor must be made in writing to the Board within ten (10 ) days from
the date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations , the findings , conclusions , recommendations , and recom-
mended order herein contained shall, as provided in Section 203.48 of said
Rules and Regulations , be adopted by the Board and become its findings, con-
clusions , and order, and all objections thereto shall be deemed waived for all
purposes.
Dated at Washington, D. C., this 23rd day of March 1949.
JOHN H. EADIE,
Trial Examiner.