Salant & Salant, Inc.

National Labor Relations Board - Board Decisions

Nov 23, 1949

87 N.L.R.B. 215 (N.L.R.B. 1949)

In the Matter of SALANT &, SALANT, INCORPORATED and AMALGAMATED
CLOTHING WORKERS OF AMERICA, CIO
Case No. 15-C-1229.-Decided November 23, 19/9
DECISION
AND
ORDER
On July 18, 1949, Trial Examiner Howard Myers issued his Inter-
mediate Report in the above-entitled proceeding, in which he found
that the Respondent had not engaged in the unfair labor practices
alleged in the complaint, and recommended that the complaint be dis-
missed in its entirety, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the General Counsel filed excep-
tions to the Intermediate Report and a supporting brief.
The Board I has reviewedthe rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby aflirmed.2 The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner, except insofar as they are inconsistent with our
findings, conclusions, and order hereinafter set forth.3
I Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
National Labor Relations Board has delegated its powers in connection with this case to a
three-member panel [ Chairman Herzog and Members Reynolds and Gray].
Apparently because the Trial Examiner recommended dismissal of the complaint in its
entirety , neither the Respondent nor the AFL filed exceptions to the Trial Examiner's
adverse rulings on their objections and motions made during the course of the hearing.
We have, nevertheless , considered all the Trial Examiner ' s rulings as though exceptions
had been filed by each of them.
We also affirm the Trial Examiner's ruling, amide before the reopened hearing, rejecting
the Respondent ' s objection to the amendment of the complaint on the ground that the
order to show cause was issued by the Chief Trial Examiner instead of the Trial Examiner.
As the General Counsel ' s motion to amend the complaint and reopen the hearing was
considered and decided by the Trial Examiner , none of the parties was prejudiced by the
Chief Trial Examiner ' s interim issuance of the order to show cause.
I The General Counsel filed no specific exceptions to the Trial Examiner ' s failure to find
that the Respondent discriminatorily discharged Charles F. Hayes, James E. Baker, Fred
Watson, Troy E. Johnson , and Sidney Fisher , and that it violated Semtions 8 (a) (1) and
( 2) of the Act independently of the union -security clause in its contract with the AFL.
However , we have considered all the findings and conclusions made by the Trial Examiner
in the Intermediate Report and we agree with his conclusions except as hereinafter set forth.
We deem it unnecessary to pass upon other allegations in the complaint as to which the
Trial Examiner made no findings and as to which there are no specific exceptions.
87 NLRB No. 36.
215
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner found that the contract between the Respondent
and the AFL, terminated by agreement of the parties on November 23,
1948, did not require membership in the AFL as a condition of employ-
ment, and that therefore the Respondent did not, as alleged in the
complaint, violate the prohibitions of the Act by virtue of the contract.
We do not agree.
The facts are undisputed. The contract, originally executed on
December 4, 1946, contained the following clause :
ARTICLE II-UNION SECURITY
SEC. 1. All employees covered by this contract shall become
members of the Union. Inexperienced employees shall become
members of the Union four (4) weeks after they are first
employed.
SEC. 2. The Company expressly reserves the right to employ
whomsoever it pleases, but all employees subject to this Agreement
shall become and remain mmzemnbers of the Union, as indicated above.
[Emphasis supplied.]
By its terms, the contract was to expire on December 1, 1947; it also
contained provision for a 1-year automatic renewal. unless either party
gave 60 days' notice to terminate. No such notice was given, and the
contract was then automatically renewed to December 1, 1948.
On February 16, 1948, the Respondent and the AFL executed a
Supplemental Agreement, amending the contract by adding a "Cost-
of-Living Bonus" provision. The Supplemental Agreement also pro-
vided that "except as modified above, said Collective Bargaining
Agreement of December 4, 1946, shall remain in full force and effect
until its expiration date on December 1, 1948." Throughout the ex-
tended term of the contract, the Respondent continued to check off
union dues, as provided in the agreement, using a revised form of
individual authorization after July 1, 1948. It is clear, therefore, that
throughout 1948, the Respondent and the AFL reaffirmed all the pro-
visions of their contract, including the union-security clause. At no
time was a union-security authorization election requested or held
pursuant to Section 9 (e ) of the Act.
On November 23, 1948, however, the Respondent and' the AFL
executed *a new agreement, which contained no union-security
provision.
We do not believe, as did the Trial Examiner, that the omission from
the contract of language explicitly requiring the Respondent to dis-
charge employees who did not join the AFL and maintain membership
therein means that the contract did not make membership in that union
a condition of employment. Thus, the contract provided not only that
SALANT & SALANT, INCORPORATED 217
all employees shall become union members, but also that they "shall
become and remain" members of the Union. We believe that this lan-
guage is sufficiently clear to establish the intention of the parties to
bind the Respondent not to continue nonunion members in its employ,
and that the employees could reasonably construe it as imposing such
a limitation on their employment privileges. As we recently said re-
garding a contract providing a comparable requirement: 4
Although . . . the contract does not expressly state that the
nmaintenance-of-membership requirement for present union mem-
bers is a condition of their employment, nevertheless, application
of the usual principles of construction to the agreement in ques-
tion leads to the conclusion that union employees must retain
their membership as therein provided as a condition of their con-
tinued employment.
The pertinent provision of this contract is clearly distinguishable
from that considered by the Board in its decision in The Iron Fireman
Manufacturing Company, 5 where the contract required new employees
to make application to join the union at the expiration of a"000-day
trial period. We did not construe that clause as a closed-shop pro-
vision, because, unlike the contract here in question, it did not require
employees to beeomn,e and remain union members, but only to make
application for union membership.,-,
The Trial Examiner bases his dismissal of the complaint on the
further ground that because the contract had expired before issuance
of the second amendment to the complaint on January 14,1949, and had
been replaced by a new agreement containing no union-security clause,
the issues raised by the complaint respecting the old contract had be-
come moot. The record also shows, however, that the new contract
was not made until after the Respondent had been served with a copy
of the proposed amendment to the complaint, in which the legality
of the union-security clause was alleged. We do not deem the Respond-
ent's discontinuance of the illegal conduct sufficient ground for dis-
missing the complaint. We have heretofore rejected similar defenses
to unfair labor practices found against both employers 7 and labor
organizations.8 Indeed, for reasons set forth below under the section
entitled "Remedy," we believe that the effects of the contract still
remain to be dissipated.
4 Hughes Aircraft Company, 81 NLRB 867, in which the contract provided that union
members "shall continue to be members in good standing.for a period of 90 days."
5 69 NLRB 19.
6 See also National Electric Products Corporation, 80 NLRB 995; cf. Hammond Lumber
Company (Terminal Island Yard), 85 NLRB 1320.
4 Pacific Moulded Products Company, 76 NLRB 1140; N. L. R. B. v. The Burke Machine
Tool Company, 133 F. 2d 618 (C. A. 6).
8 The Howland Dry Goods Company, 85 NLRB 1037 ; Cory Corporation, 84 NLRB 972.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We conclude, therefore, that the union-security provision in the ex-
pired contract was illegal because it failed to satisfy the requirements
laid down in the proviso to Section 8 (a) (3). By its affirmative
continuance of the contract on and after December 1, 1947, the Re-
spondent imposed a restraint upon those employees desiring to refrain
from union activities within the meaning of Section 7 of the Act as
amended and thereby violated Section 8 (a) (1) thereof.s
Moreover, by assenting to the unlawful union-security clause in
the renewed and implemented contract, the Respondent lent its sup-
port to the AFL in recruiting and maintaining its membership and
coerced its employees to become and remain members of the AFL.
Accordingly, we find that the Respondent thereby violated Section
8 (a) (2) as well as Section 8 (a) (1) of the Act.1e
As the execution of the original contract on December 4, 1946,
occurred before the effective date of the proviso to Section 8 (a) (3)
of the Labor Management Relations Act of 1947, our unfair labor
practice findings herein are limited to the Respondent's conduct in
renewing the agreement on December 1, 1947, and thereafter reaffirm-
ing its terms 11 Because our findings of illegal activities are limited
to the 6-month. period preceding the date of the second amended
charge, served on May 13, 1948, we find no merit in the motion of the
Respondent and the AFL to dismiss the complaint on the basis of the
limitations set-forth in Section 10 (b). The motion is hereby denied 12
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in con-
i:ection with the operations of the Respondent described in Section I
of the Intermediate Report, 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.
THE REMEDY
Having found that the Respondent has engaged in unfair labor
practices, we shall order that it .cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
9 See Hager d Sons Hinge Manufacturing Company, 80 NLRB 163.
10 Julius Resnick, Inc., 86 NLRB 38. In his brief , the General Counsel argues that
the illegal union-security clause also violated Section 8 (a) (3) of the Act. However, as
the complaint contains no allegation on this point, we make no such finding.
11 See also the provisions of Section 102, removing the 1946 contract from the prohibitions
of the Act for a fixed period after its effective date.
12 Cathey Lumber Company, 86 NLRB 157.
SALANT &. SALANT, INCORPORATED 219
We have found that the Respondent violated Section 8 (a) (1) and
(2) of the Act by continuing and reaffirming the illegal union-security
clause in its contract with the AFL. The effect of such violation was to
coerce its employees into becoming and remaining members of the
AFL, a vice which Section 8 (a) (3) and Section 9 (e) were intended
to avoid. Accordingly we shall order the Respondent to cease and
desist from such, or any like or related, conduct. We are also per-
suaded that the effect of the coercive conduct would not be eradicated
were we to permit the AFL to continue to enjoy a representative status
strengthened by virtue of the illegal contract, as renewed in 1947.
The fact that, since December 1, 1948, the illegal union-security
clause has been eliminated, is not sufficient reason to permit the AFL
to retain the benefits of a majority status which was strengthened at
that time by the continuation, throughout the preceding year, of the
unlawful security clause. Therefore, in order to effectuate the pur-
poses and.policies of the Act, we shall order the Respondent to with-
draw recognition from the AFL and to cease giving effect to its
contract of November 23, 1948, with that organization, or to any
modification, extension, supplement, or renewal thereof, -unless and
until the AFL has been certified by the Board. Nothing in our order,
however, shall be deemed to require the Respondent to vary or
abandon those wage, hour, security, or other substantive features of
its relations with its employees, established in the performance of said
contract, or to prejudice the assertion by the employees of any rights
they may have under the agreement.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following additional :
CONCLUSION'S OF LAw
1. By continuing and reaffirming its illegal contract with United
Garment Workers of America, AFL, thereby interfering with, re-
straining, and coercing its employees in their exercise of the rights
guaranteed in Section 7 of the Act, the Respondent has engaged in,
and is engaging in, unfair labor practices within the meaning of Sec-
tion 8 (a) (1) of the Act.
2. By assisting and supporting United Garment Workers of
America, AFL, through the illegal provisions of said contract, the
Respondent has engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8 (a) (2) 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.
220 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended , the National. Labor
Relations Board hereby orders that the Respondent, Salant & Salant,
Incorporated , Parsons , Tennessee , and its officers , agents , successors,
and assigns shall :
1. Cease and desist from :
(a) Entering into, renewing, or enforcing any agreement with
United Garment Workers of America , AFL, or any other labor
organization which requires its employees to join, or maintain their
membership in, such labor organization as a condition of employment,
unless such agreement has been authorized as provided by the Na-
tional Labor Relations Act, as amended;
(b) Recognizing United Garment Workers of America . AFL, or
any successor thereto, as the representative of any of its employees at
its Parsons , Tennessee , plant for the purposes of dealing with the
Respondent concerning grievances, labor disputes , wages , rates of
pay, hours of employment , or other conditions of employment , unless
and until said organization shall have been certified by the National
Labor Relations Board;
(c) Performing or giving effect to its contract of November 23,
1948, with United Garment Workers of America , AFL, or to any mod-
ification , extension , supplement , or renewal thereof, or to any other
contract , agreement , or understanding entered into with said organi-
zation relating to grievances , labor disputes , wages, rates of pay,
hours of employment , or other conditions of employment , unless and
until said organization shall have been certified by the National Labor
Relations Board;
(d) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the right to self -organization,
to form labor organizations , to join or assist Amalgamated Clothing
Workers of America, CIO', or United Garment Workers of America,
AFL, or any other labor organization , to bargain collectively through
representatives of their own choosing , to engage in concerted activi-
ties for the purposes of collective bargaining , or other mutual aid or
protection , or to refrain from any or all of such activities , except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment,
as 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) Withdraw and withhold all recognition from United Garment
Workers of America, AFL , as the . representative of any of the Re-
SALANT & SALANT, INCORPORATED 221
spondent's employees for the purposes of dealing with the Respondent
concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment, unless and until said
organization shall have been certified by the National Labor Relations
Board;
(b) Post at its plant at Parsons, Tennessee, copies of the notice
attached hereto, marked Appendix A. '3 Copies of said notice, to be
furnished by the Regional Director for the Fifteenth Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof, and maintained
by it for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material;
(c) Notify the Regional Director for the Fifteenth Region h,l 2M
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that in all other respects the complaint
herein be, and it hereby is, dismissed.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT enter into, renew, or enforce any agreement with
UNITED GARMENT WORKERS OF AMERICA, AFL, or any other labor
organization, Which requires our employees to join, or maintain
their membership in, such labor organization, as a condition of
employment, unless such agreement has been authorized as pro-
vided by the National Labor Relations Act, as amended.
117-E WILL withdraw and withhold all recognition from UNITED
GARMENT WORKERS of AMERICA, AFL, as the representative of
any of our employees at our Parsons, Tennessee, plant, for the
purposes of dealing with us concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of
employment, unless and until UNITED GARMENT WORKERS OF
AMERICA, AFL, shall have been certified by the National., Labor
Relations Board as the bargaining representative.
13 In the event this Order is enforced by decree of a United States Court of Appeals, there
shall be inserted in the Notice, before the words, "A DECISION AND ORDER," the words,
"A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL cease performing or giving effect to our contract of
November 23, 1948, with UNrrED GARMENT WORKERS OF AMERICA,
AFL, covering employees at our Parsons, Tennessee, plant, or
to any modification, extension, supplement, or renewal. thereof, or
to any other contract, agreement, or understanding entered into
with said organization relating to grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions
of employment, unless and until said organization shall have
been certified by the National Labor Relations Board.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their right to
self-organization, to form labor organizations, to join or assist
AMALGAMATED CLOTHING WORKERS OF AMERICA, CIO, or UNITED
GARMENT WORKERS OF AMEEICA, AFL, or any other labor organi-
zation, to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to
refrain from any or all of such activities, except to the extent
that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
SALANT & SALANT, INCORPORATED,
En7 ploJer.
By-------------------------------------
(Representative) (Title)
Dated----------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Messrs. Victor H. Hess, Jr., and TVlllians P. Alexander, for the General Counsel.
Messrs. Joseph Martin and R. T. Cochran, for the Respondent.
Mr. Harold S. Marthenke, for the Union.
Robert A. Wilson, Esq., and Mrs. Ida Lee Merchant, for AFL.
STATEMENT OF THE CASE
Upon an amended charge and a second amended charge duly filed on December
20, 1946, and May 10, 1948, respectively, by Amalgamated Clothing Workers of
America, affiliated with the Congress of Industrial Organizations, 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
for the Fifteenth Region (New Orleans, Louisiana), issued his complaint on May
25, 1948, alleging that Salant & Salant, Incorporated, Parsons, Tennessee, herein
called the Respondent, had engaged in, and was engaging in, unfair labor
practices affecting commerce, within the meaning of Section 8 (a) (1), (2), and
(3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended,
til Stat. 136, herein called the Act.
SALAI\TT 4 SALANT, INCORPORATED 223
Copies of the complaint, the amended charge, and the second amended charge,,
together with notice of hearing thereon, were duly served upon the Respondent,
the Union, and United Gaavaent Workers of America, herein called AFL.
On June 14, 1948, the Respondent duly filed an answer admitting certain
allegations of the complaint with respect to its corporate existence, the nature
and extent of the business transacted by it, but denying the alleged unfair labor'
practices.
With respect to the unfair labor practices, the complaint, as amended, alleged..
in substance, that the Reslmndent (1) (a) on or about September 25, 1946,
discharged Charles F. Hayes, (b) on or about November 8, 1946, discharged-
James E. Baker, (c) on or about October 22, 1946, discharged Fred Watson, (d)
on or about October 29, 1946, discharged Troy E. Johnson, and (e) on or about
October 22, 1946, discharged Sidney Fisher, and thereafter refused to reinstate,
them, or any of them, because each of them had joined and had assisted the-
Union and had engaged in concerted activities with their coworkers for the-
purposes of collective bargaining and other mutual aid and protection; (2) since
about May 1, 1946, through certain named persons and others, engaged in certain
aactivities and made certain statements which acts and statements interfered with,.
restrained, and coerced its employees in the exercise of the rights guaranteed in.
Section 7 of the Act; and (3) on or about May 1, 1.946, initiated, formed,,
sponsored, and promoted the United Garment Workers of America, affiliated with:
American Federation of Labor, herein called AFL, and since that date has
assisted, dominated, and contributed support thereto, and also has interfered
with its administration.
Pursuant to notice, a hearing was held in Lexington, Union City, and Paris, all
in the State of Tennessee, on various dates between June 24, 1948, and March 1.7,
1949, before Howard Myers, the Trial Examiner duly designated by the Chief
Trial Examiner.' The Respondent, the General Counsel, and AFL were repre-
sented by counsel; the Union by a representative. All parties participated in the
hearing and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence pertinent to the issues.
At the opening of the hearing, the motion of AFL to intervene was granted
without objection. Thereupon AFL moved to dismiss the allegations of the
complaint, as amended, which charged that the Respondent had violated, and
was violating, Section 8 (a) (2) with respect to its dealings with AFL., The
motion was denied with leave to renew. AFT then filed an answer denying
that (1) it had been initiated, sponsored, formed, or promoted by the Resppndent;
(2) it had been, or was, assisted, dominated, or supported by the Respondent;
(3) its administration had been, or was being, interfered with by the Respondent.
AFL then moved that the complaint, as amended, be made more definite and
certain and that certain allegations thereof be stricken. The motion was granted
in part and denied in part.
Before the taking of any evidence, counsel for the Respondent moved to dismiss
the complaint, as amended, on the ground that the second amended charge was--
not filed or served within the time prescribed by Section 10 (b) of the Act and
further that the acts alleged to have been committed by the Respondent had.
taken place more than 6 months prior to the filing and serving of the second
' On or about July 19, 1948 , the undersigned was designated Trial Examiner in the place-
and stead of Trial Examiner Charles W. Schneider , who previously had been designated by
the Chief T rial Examiner as Trial Examiner to hear this case. Trial Examiner Schneider
presided over the hearing on June 24 , 1948 , but no oral testimony was introduced on that,
date . The undersigned presided on all occasions when oral testimony was introduced.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amended charge. The motion was denied with leave to renew. At the conclusion
of the General Counsel's case-in-chief, the Respondent's counsel made various
motions to dismiss the complaint, as amended, in its entirety, or, in the alterna-
tive, to dismiss certain portions thereof, on the ground of lack of proof. The
motions with respect to James E. Baker and Troy E. Johnson were granted and
the complaint, as amended, with respect to each of them was dismissed. Likewise,
the motions to dismiss certain portions of the complaint, as amended, regarding
the alleged violations of Section 8 (a) (1) of the Act were also granted. Decision
with respect to the other motions was reserved.
Counsel for AFL then renewed his motion to dismiss the complaint as amended,
with respect to the allegations thereof that AF I, was formed and has been existing
in violation of the Act. Decision thereon was again reserved.
At the conclusion of the taking of the evidence, the General Counsel's mo-
tion to conform the pleadings to the proof, with respect to minor variances, such
as to correct misspelled names and places, was granted without objection. The
Respondent's counsel and counsel for AFL then renewed their respective mo-
tions upon which decision had been reserved. The undersigned again reserved
decision. The motions are disposed of as hereinafter set forth.
The parties were then informed that they might file briefs and proposed
findings of fact and conclusions of law with the undersigned on or before April 2,
1949.2 Briefs have been received from counsel for the Respondent and from
counsel for AFL which have been carefully considered by the undersigned.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the followings :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Salant & Salant, Incorporated, is a New York corporation having its principal
offices in the City and State of New York. The Respondent operates, among
others, a plant at Parsons, Tennessee, the employees of which are the only
ones involved in this proceeding.
At the Parsons plant, the Respondent is engaged, and during all times material
herein, has been engaged, in the manufacture, sale, and distribution of men's
work pants and men's work shirts. During 1946, the Respondent purchased raw
materials, for processing at its Parsons plant, valued in excess of $500,000, ap-
proximately all of which were shipped to the said plant from points located
outside the State of Tennessee. During the same year, the Respondent manu-
factured at the said plant men's work shirts and men's work pants having a
value in excess of $500,000, substantially all of which were shipped to customers
located outside the State of Tennessee.
The undersigned finds that the Respondent, at its Parsons, Tennessee, plant
is, and during all times material herein has been, engaged in commerce, within
the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
Amalgamated Clothing Workers of America, affiliated with the Congress of
Industrial Organizations, and United Garment Workers of America, affiliated
2 Upon the request of the Respondent and AFL, the time was extended to and including
June 13, 1949.
SALANT & SALANT, INCORPORATED 225
with the American Federation of Labor, are labor organizations admitting to
membership employees of the Respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The alleged interference, restraint, and coercion
Prior to the summer of 1946, some of the employees formed a labor organiza-
tion , known as Parsons Garment Workers Union. In July or August 1946, the
Union commenced an organizational drive and on August 28, Edward Blair,
a Nashville office representative of the Union, arrived in Phrsons, distributed
leaflets at and near the entrances and exits of the plant, and generally took
charge of the campaign.
The Union did not hold any meetings in Parsons, but several meetings were
held in the City Hall at Lexington, Tennessee, a town about 13 or 14 miles from
Parsons. and at the respective homes of 2 or 3 employees who resided in Beacon,
Tennessee, which place is located about 2 miles from Parsons. None of these
meetings were well attended. At most, only about 30 of the then approximately
385 Parsons plant employees attended any one meeting s
In August 1946, the Parsons Garment Workers Union filed with the Regional
Director for the appropriate region a Representation Petition. Thereupon the
Union moved, and was granted leave, to intervene in that proceeding. Upon the
granting of the said motion, the Union then moved to dismiss the said petition on
the ground that the Parsons Garment Workers Union was existing in violation of
the Act. The said Regional Director granted the motion and dismissed the said
petition.
On or about September 24, a large majority of the employees of the Parsons
plant attended a meeting in a local moving picture theater and there voted to
disband the Parsons Garment Workers Union. The employees then decided to,
and many of them did, join AFL.
Upon being notified by AFL that it represented a majority of the employees,
the Respondent agreed to a cross-check. This cross-check was held on October 5,
and disclosed that about 95 percent of the employees had designated AFL their
collective bargaining representative.
Under date of October 7, AFL wrote the New York offices of the Respondent
that since the results of the cross-check showed it had been designated the
bargaining representative by a vast majority of the employees, it demanded
that the Respondent recognize it as such representative and that it set a date
for a bargaining conference.
3-.\o meetings were held in Parsons evidently because when Blair and an associate of
his were distributing handbills in front of the plant on September 26, 1946, W. H. Long,
the then mayor of Parsons, ordered Blair and his associate to leave town immediately.
During the course of the hearing, various witnesses called by the General Counsel testified
to certain statements made to them by Long and to certain activities engaged in by Long.
These statements and activities were violently anti-Union. The General Counsel, however,
was unable to Show any connection between Long and the Respondent, other than that
Long was a part owner of the building in which the Parsons plant was located. Nor was
the General Counsel able to prove that the Respondent (a) had any knowledge or infor-
mation of Long's statements or activities at or about the time they were made or engaged
in. (b) that the statements or activities of Long were ever brought to the attention of the
Respondent prior to the hearing herein, or (c) that the Respondent had ever rati-
fied the said statements or activities. The record being thus, the undersigned granted
the Respondent's motion to strike from the record all the testimony with respect
to the statements and activities of Long . The undersigned is of the opinion, nonetheless,
that Long made the statements and engaged in the activities which the various witnesses
attributed to him and he so finds.
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The parties met sometime around the middle of November. Thereafter, and
on December 4, a collective bargaining contract was executed, effective as of
December 2, 1946.
In the interim, the Union, under date of October 2, wrote the Respondent's
New York offices that the Union had "an interest" in the designation of the
employees' bargaining representative and requested the Respondent to take
cognizance of that fact.
Again on November 15 and on November 18, the Union wrote the Respondent's
New York offices along similar lines. It is to be noted that in none of the letters
to the Respondent did the Union claim to represent a majority of the employees
or did the letters request the Respondent to deal with the Union as representative
of any of the employees. The record clearly shows that the Union at no time
represented a substantial number of the employees.
The General Counsel not only relies upon the above incidents in support of his
contention that AFL was formed at the behest of the Respondent and that it has
been existing with the aid and support of the Respondent, but also upon the
testimony of Jesse Perkins and Erby Sullivan.
Perkins testified credibly and without contradiction,' as follows : He worked
as a truck driver for Hayes Freight Lines and occasionally picked up freight at
the Parsons plant; that around August 1.5, 1946, he and Superintendent White
of the Parsons plant had a conversation wherein White asked him how he liked
his union the Teamsters) ; that he replied he was satisfied with it; that White
then said, to quote Perkins, "Well, I would rather not have any union but I
would rather have the [American Federation of Labor] than the CIO" but I
cannot "have anything to say on either side."
Erby Sullivan testified credibly as follows : He signed an AFL membership
application card in September 1946, at the request of Ollie Wilkins, a mechanic
employed at the Parsons plant; that the said card was signed in the phint's
rest room ; that after signing the card, and after handing it to Wilkins, he and
Wilkins left the rest room; that he returned to his place of work and Wilkins
returned to the machine shop; that on his way to the machine shop Wilkins
showed Foreman Donald Bangs the signed membership application card; that
Bangs looked at the card, but made no comment; and that Wilkins then put the
card in a drawer of the table that Wilkins used.
It is thus clear that the evidence does not support the General Counsel's con-
tention. The most that can be said about the Sullivan incident is that a fellow
employee, after having secured Sullivan's signature to an AFL card, showed the
card to a supervisory employee. No comment, however, was made by either the
supervisor or by the person who showed the card. There is no evidence, further-
more, that the supervisor aided in obtaining Sullivan's signature to the card, or
that the signature was obtained at the request or suggestion of the supervisor.
With respect to the Perkins incident, it is clear that White only expressed his
personal views to a person who was not an employee of the Respondent and who
had no connection with any of the then three competing unions. The statement
is protected, furthermore, by Section 8 (c) of the Act. Even assuming that it
were not so protected, there is no evidence that any of the Respondent's em-
ployees, or anyone connected with any of the competing unions, was ever informed
of White's utterances. It is true that the statements were made during the time
that the so-called Wagner Act was in effect, but under that Act the said statement
was permissible.
The Respondent called no witnesses . It rested its case at the conclusion of the General
Counsel ' s case-in -chief.
SALANT & SALANT, INCORPORATED 227
The fact that the Respondent executed a collective bargaining contract with
AFL in face of the above-mentioned letters of the Union does not prove that
the Respondent violated the Act thereby or that it thereby gave illegal support
to AFL. Admittedly, the Union never (a) had a substantial number of members
among the employees of the Parsons plant, (b) claimed a majority repre-
sentation, or (c) asked the Respondent to bargain collectively for any group or
number of employees. The mere writing of the said letters of October and
November 1946, was not sufficient to keep the Respondent from legally dealing
with AFL, which had demonstrated that it represented about 95 percent of the
employees.
Under the circumstances, the undersigned is of the opinion, and finds, that
the evidence does not support the allegations of the complaint, as amended,
that the Respondent had initiated, formed, sponsored, or promoted AFL and
thereafter had assisted, dominated, contributed support thereto, or had inter-
fered with its administration. The undersigned further finds that the state-
ments of Plant Superintendent White to Perkins, as set forth above, and Fore-
man Bangs' looking at Sullivan's signed AFL card were not violative of the Act.
Accordingly, the undersigned will recommend that the allegations of the com-
plaint, as amended, that the Respondent had violated Section S (a) (2) of the
Act, and through the said statement of White and through the said action of
Bangs had violated Section S (a) (1) of the Act, be dismissed.
B. l'lhe allcged discriminatory discharges
Charles F. Hayes was first employed at the Parsons plant in March 1943. He
was first assigned to sorting and sizing pants and then was made a checker in
the shipping -department. During his entire employment he was under the
supervision of Foreman Cleveland Yates.
In duly or August 1.946, Hayes signed a membership application card of the
Union. Thereafter, he attended meetings at Lexington, Tennessee, and at the
home of an employee in Beacon, Tennessee ; he solicited members for the Union
and distributed several membership application cards in Beacon and on the
bus to and from work ; and spoke to some of his fellow employees in the plant
regarding the Union. Hayes testified, and the undersigned finds, that he talked
"a lot" about the Union while riding to and from work on the bus; that he
"thought" Dorothy Wallace was on the bus when he spoke about the Union:
that he "thought" Wallace was a forelady "at that time" ; and that he "thought"
she was a forelady at the time of hearing. There is, however, absolutely no
credible evidence in the record that Dorothy Wallace was a forelady at the
Parsons plant at the time in question or at the time of the hearing. Furthermore,
there is no evidence whatsoever that Wallace heard Hayes' remarks about the
Union.
Regarding a conversation he had with Head Mechanic Wheat in August 1946,
Hayes testified, and the undersigned finds, as follows :
Who I thought the union was going to be, did I reckon was that would
come into the plant. I told him I don't know. He says how does the boys
in the shipping department feel about it. I told him, well, I hadn't heard
very much talk about it.
Hayes also testified, and the undersigned finds, that sometime during his em-
ployment, the (late being undisclosed, he and Foreman Cleveland Yates had a
conversation where the following ensued:
877353-50-vol. 87-16
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Well, I remember back when the coal strike was on, Mr. Yates said he
didn ' t know whether he was going to be able to get coal to operate or not
through the winter for the plant . He said the strike looked like it was
causing a lot of trouble . I told him I thought the Unions could go to
extremes like anybody else , but I was more sold for the C. I. O. if I ever got
a chance , I would join it, than I Was the U. M. W.
Regarding the events that took place immediately preceding his discharge on
September 25, 1946, Hayes testified , on direct examination , credibly as follows :
Q. Now , then , sir, will you please tell us the circumstances surrounding
your discharge?
A. Well, we was-we had an order there for shipment that the pick-up
boy had brought up and I checked the size of the pants and laid it on the
table and Myracle ( a fellow employee ) picks them up and puts them in the
box. Then he piles them back out of the box and says, "There is 24 pair
too many ." Well, Mr. White , lie walked up and says, "What ' s wrong with
that order"? Mr. Myracle told him that there was 24 pair of pants too
many , the way he counted them . And he (White) said to me, he says,
"That ' s what I have been catching hell about." He says, "I have a letter
here in the office . I'll go get it and read it to you." He went up there and
come back with the letter and said there had been mistakes on pants orders,
first one thing and another . They (the New York offices of the Respondent)
didn't see why-he didn ' t see-how lie state it-"I don ' t know whether they
don't care or just don ' t give a damn or can 't do it-why don ' t you fire
them"?-something like that is the way he read it, and he told me, "If that
is the best you can do you just might as well check out." So we went to
the clock and got my card and checked out. I asked Mr. AVbite, "Well, what
are you going to put on the separation slip"? He said, "Mistake in pants
orders." I said, "You can put anything on there you want to , but I don't
believe it because I think you fired me for union activities."
Hayes admitted that it was part of his duties to check the lot members , sizes,
and quantities of merchandise against the orders brought to the shipping de-
partment ; that for a period of approximately 3 or 4 months immediately prior
to his discharge , White and Foreman Yates had complained to him about the
errors of overage and shortages in orders that he and the other shipping depart-
ment employees were making ; that White told him several times there were
complaints from the Respondent ' s New York offices about the overages and
shortages ; that on one occasion White showed him a letter complaining about
a certain order which the Parsons plant received from the New York offices,
asked him to read the letter , and then he should read it to the other shipping
department employees ; and that he did not wear any union button or told any
supervisor , prior to his discharge , that he was a member of the Union.
Outside of telling Yates that he preferred the CIO to the United Mine Workers
there is absolutely no evidence that any supervisor knew that Hayes had any
sympathetic leaning towards the Union . In his conversations with Head Me-
chanic Wheat , Hayes did not say that he preferred the Union to AFL or that
he had any interest in either Union. In short , the record is barren of any
evidence upon which .a finding can be made that the Respondent had any knowl-
edge at the tire, it discharged Hayes that he was in any way connected with the
Union or had engaged in any concerted activities protected by the Act. Under
the circumstances , the undersigned finds that Hayes was discharged for cause
and not for the reason alleged in the complaint , as amended . Accordingly, the
SALANT & SALANT, INCORPORATED 229
undersigned will recommend that the complaint, as amended, be dismissed as to
Hayes.
Fred TPatson and. Sidney Fisher were employed at the Parsons plant as cloth
spreaders. The former was first employed in July 1945, and the latter in
January 1946. Both were discharged on October 22, 1946, under the following
circumstances:
On October 19, Phlake Tucker, the foreman of Watson and Fisher, came to
where they were working and asked how many plys of cloth they lacked ; they
replied about five ply; Tucker then said they would "have to do better than that"
and if they did not then he would get somebody who could; Watson replied, to
quote Watson, "If he (Tucker) didn't like my work, I was ready to quit" ;
Tucker said that he was not satisfied with their production and left the table
at which Watson and Fisher were working; Watson and Fisher then went to
Foreman Bangs and related to him what had transpired between them and
'ucker ; Bangs told Watson and Fisher to return to their table, adding that their
production was satisfactory and that he would take the matter up with Tucker.
On October 22, just before quitting time, Tucker came to Watson and Fisher
and said, to quote Fisher's credited testimony, "he would just let us go," saying
something to the effect that the spreaders "had it in" for him. Whereupon,
Watson and Fisher checked out at quitting time and left the plant.
The following morning, October 23, they returned to the plant to get the wages
due them and their separation slips. They talked to White, who gave to. each
of them their respective wages due and their respective separation slips. The
slips bore notations "Disagreed with foreman. Quit work."
Several hours later, Watson and Fisher returned to the plant, informed White
that they could not draw unemployment compensation due to the notation "Quit
work" on the separation slips and requested White to change "Quit work" to
"discharged." - White did as requested.
The contentions of the General Counsel that Watson and Fisher were dis-
charged because of their membership and activities in behalf of the Union and
because each of them had engaged in certain concerted activities protected by the
Act are not supported by the record.
In support of his contention that Watson was discharged in violation of the
Act, the General Counsel strongly relies on a letter given to Watson, at his re-
quest, on November 3, 1946, by the Respondent. The body of the letter states :
This is to certify that Fred Watson worked for us from July 5, 1945, until
October 21, 1946. He was a spreader in our shirt department at the time he
quit work. We found that he attended his work regularly and his work was
always satisfactory. He had no bad habits and has a good moral character.
Watson joined the Union on September 16, 1946, about a month later joined
AFL, and was a member of each union at the time of his discharge. There is
no evidence whatsoever that the Respondent: had any knowlsrge or information
that he had joined, or was a member of, either union. He wore no button or
emblem of either union and had no conversation with any supervisor regarding
unions. His activities in behalf of the Union were limited to attending one
meeting in Lexington, Tennessee. On the other hand, he attended a "few"
AFL meetings in Parsons, Tennessee.
There is some indication in the record that Watson and Fisher could not
get along with Tucker and for that reason their services were terminated on
October 22, 1h46. Whether Watson quit or was discharged for cause is a
question that need not be resolved here. The fact remains, as the record as a
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whole clearly shows, Watson's termination of employment was brought about
for reasons unrelated and foreign to his membership and activities in behalf of
the Union or to the engagement by him in any protected concerted activities,
and the undersigned so finds.
At his request, the Respondent gave Fisher a letter of recommendation, dated
November 6, 1946, reading in part, as follows :
This is to certify that Sidney Fisher worked for -us from January 21, 1946
until October 21, 1946. He was faithful to his work and attended his work
regularly. We found him to have no bad habits and of good morals. He
was a spreader in our shirt cutting department while employed by us.
Fisher joined the Parsons Garment Workers Union ; thereafter, and on or
about September 16, 1946, he joined the Union ; and joined AFL prior to his
discharge on October 22, 1946. Upon that date, Fisher was a member of both
the Union and the AFL. Pike the case of Watson, there is no evidence in the
record that the Respondent had any knowledge or information that Fisher was
a member of any union. He wore no button or displayed no other evidence of
men:bershi.p in either AFL or the Union. The extent of activities in behalf of
the Union was limited to attending one meeting in Lexington and two at the
Beacon home of one of the employees.
As found above, there is some indication in the record regarding the inability
of Watson and Fisher to get along with Tucker. Besides, Fisher admitted that
on about a half dozen occasions, prior to his discharge, Tucker reprimanded him
and Watson for their low production. , Whether Fisher quit or was discharged
for cause is a question of little import and need not be resolved here. As in
Watson's case, the record clearly shows that Fisher's membership and activities
in behalf of the Union played no part in the ultimate termination of his em-
ployment with the Respondent and the undersigned so finds. Accordingly, the
undersigned will recommend that the allegations of the complaint, as amended,
with respect to Watson and Fisher be dismissed.
C. The contrast between the Respondent and AFL, dated December 111 19116
Pursuant to a cross-check agreement, the membership application cards signed
by the Parsons plant employees were checked against the records of the Re-
spondent on October 5, 1940. The results of the check showed that about 95
percent of the employees had designated AFL their collective bargaining repre-
sentative. There is no evidence that the said employees did not designate AFL
freely and without coercion by the-Respondent or AFL.
Thereafter and on or about December 4, 1946, a collective bargaining agreement
was entered into by and between the Respondent and the AFL containing a clause
reading as follows :
ARTICLE 11-UNION ST' CURI'TY
Sac. S. All employees covered by this contract shall become members of the
Union. Inexperienced employees shall become members of the Union four
(4) weeks after they are first employed.
SEC. 2. The Company expressly reserves' the right to employ wvhouisoever
it pleases, but all employees subject to this Agreement shall become and
remain members of the Union, as indicated above.
The said contract also provided for a check-off of dues upon individual written
authorization by the employees. Beginning on July 1, 1948, the Respondent
SALANT & SALANT, INCORPORATED 231
refused to honor the check-off authorizations in force since December 4, 1946, and
insisted and obtained a new form of authorization.
By its terms the December 4, 1946, agreement was to remain in full force
and effect until December 1, 1947, and was to be automatically renewed unless
one of the parties notified the other party 60 days prior to December 1, 1947, of
its desire to terminate the agreement. No notice of termination was given and
thus the contract remained in full force and effect until December 1, 1948.
Under date of November 23, 1948, the Respondent and AFL entered into a
2-year contract, effective December 1, 19=18, with provision to terminate on Decem-
her 1, 1949, upon proper notice by either party to the other. This new contract
has no provision for any union security.
There is no dispute as to the foregoing facts or to the fact that no election was
held, or requested, under Section 9 (e) of the Act. The issue, as it arises from
them, turns on the question of whether or not the contract is violative of the Act.
The clause of the contract under attack does not contain any provision which
requires membership in good standing in AFL as a condition to obtain or retain
employment with the Respondent. The most it does is to require the employees
in the Respondent's employ on December 4, 1946, to join AFL and all "new"
employees to join after a specified time. This part of the agreement contains no
language that can be construed to mean that any "old" employee or any "new"
employee, after the specified time, must be discharged by the Respondent if the
employee does not join AFL and maintain membership in good standing therein.
Furthermore, there is no requirement in the agreement which imposes a duty
upon the Respondent to see that the "old" employees join AFL at any time or
that "new" employees join within the specified time. The agreement is likewise
silent as to the obligations of the "old" and the "new" employees to maintain
membership in AFL after becoming members thereof.
There is no contention that the contract was not valid when made. The Gen-
eral Counsel contends that the renewal thereof on December 1, 1947, was violative
of the Act. With this contention the undersigned cannot concur.
Proviso to Section 8 (a) (3) of the Act states:
. . . nothing in this Act, or in any other statute of the United States, shall
preclude an employer from making an agreement with a labor organiza-
tion . . . to require as a condition of employment mn,embership therein on or
after the thirtieth day following the beginning of such employment or the
effective date of such agreement, whichever is the later, . . , (ii) if, follow-
ing the most recent election held as provided in section 9 (e) the Board shall
have certified that at least a majority of the employees eligible to vote in
such, election have voted to authorize such labor organization to make such en
agreement. . . . [Emphasis supplied.]
Since it has been found that the agreement does not "require as a condition of
employment" with the Respondent membership in AFL, it necessarily follows
that the agreement is not violative of the Act. Accordingly, the undersigned
will recommend that the allegations of the complaint, as amended, that the
Respondent violated Section 8 (a) (1) of the Act with respect to the said agree-
ment be dismissed. Furthermore, the entire question of the validity of the
union-security clause of the December 4, 1946, contract had become moot to a
certain extent, at the time of the issuance of the "Second Amendment To Com-
plaint" on January 14, 1949, because the contract by its terms had expired, and
had been superseded by a contract not only containing no union-security clause,
but expressly stating that the Act, under certain conditions, and the Laws of Ten-
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nessee, prohibited the making of a collective bargaining contract containing a
union-shop provision.
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. The operations of Salant & Salant, Incorporated, at its Parsons, Tennessee,
plant, is, and at all times material herein has been, engaged in commerce, within
the meaning of Section 2 (6) and (7) of the Act.
2. Amalgamated Clothing Workers of America, affiliated With the Congress of
Industrial Organizations, and United Garment Workers of America, affiliated
with the American Federation of Labor, are labor organizations, within the
meaning of Section 2 (5) of the Act.
3. The allegations of the complaint, as amended, that the Respondent has
engaged in, and was engaging in, unfair labor practices, within the meaning of
Section 8 (a) (1), (2), and (3) have not been sustained.
RECOMMENDATIONS
It is recommended that the complaint be dismissed in its entirety.
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 25, 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 lie 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 state-
ment of exceptions and/or briefs, the party filing the same shall serve e copy
thereof upon each of the other parties. Statements of exceptions and briefs
shrill designate 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 Bonrd
shall be promptly made as required by Section 203.85. As further provided in
said Section 203.46 should any party desire permission to argue orally before the
Board, request therefor must be made in writing to the Board within ten (10)
days from the date of service of the order transferring the case to the Board.
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, conclusions,
and order, and all objections thereto shall be deemed Waived for all purposes.
Dated at Washington, D. C., this 18th day of July 1949.
HOWARD MYERS,
Trial E.ran,in('V.