Salant & Salant, Inc.

National Labor Relations Board - Board Decisions

Feb 27, 1950

88 N.L.R.B. 816 (N.L.R.B. 1950)

In the Matter of SALANT & SALANT, INC. and AMALGAMATED CLOTHING
WORKERS OF AMERICA, CIO
Case No.15M-C-3.Decided February 27,1950
DECISION
AND
ORDER
On August 19, 1949, Trial Examiner Howard Myers issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in any of the unfair labor practices
alleged in the complaint and recommending 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 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, except insofar as they are inconsistent
with the Decision and Order herein.
1. We agree with the Trial Examiner's findings that certain alleged
anti-CIO and pro-AFL statements. and conduct by the Respondent's
supervisors, as detailed in the Intermediate Report, were not made or
engaged in. We also agree with his findings that certain other such
statements were made, but were protected expressions of opinion under
Section 8 (c) of the Act. Accordingly, we adopt the Trial Examiner's
finding that the Respondent did not thereby violate Section 8 (a) (1)
and (2) of the Act, as alleged in the complaint.
2. The Trial Examiner found that the contract entered into on
December 4, 1946, by the Respondent and the AFL, did not require
membership in the AFL as a condition of employment within the
meaning of the proviso to Section 8 (a) (3) of the Act, and that there-
fore the Respondent did not, as alleged in the complaint, violate Sec-
tion 8 (a) (1) and (2) of the Act by virtue of the renewal of the
contract on December 1, 1947.
88 NAB No. 156.
816
SALANT & SALANT, INC. 817
For the reasons set forth in a recent case involving another plant
of the Respondent, where we considered an identical set of facts and
issues with respect to a union-security provision, and which therefore
need not be repeated here, we reach a contrary conclusion? Nor, as
in that case, do we agree with the Trial Examiner that the Respond-
ent's discontinuance of this illegal conduct is sufficient ground for
dismissing the complaint in this respect.
Accordingly, we find, as we did in the prior case, that the union-
security provision in the December 4, 1946, contract between the
Respondent and the AFL, was illegal on and after its renewal on
December 1, 1947, and that the Respondent's renewal and affirmative
continuance of the contract on and after that date constituted a viola-
tion of Section 8 (a) (1) and (2)2 of the Act.3
3. The Trial Examiner found in effect, and we agree, that the
Respondent did not commit an unfair labor practice by virtue of the
checkoff provision in its December 4, 1946, contract with the AFL.
We base our conclusion, however, on different considerations.
The basis for the Trial Examiner's finding in this connection is that
the only requirement under Section 302 of the Act for checkoff is a
voluntary written authorization, and that that requirement was satis-
fied. Thus, the Trial Examiner's theory appears to be that a deter-
mination of whether checkoff is an unfair labor practice under Sec-
tion 8 of the Act turns on whether the checkoff in question meets the
requirements of Section 302 of the Act, and that a failure to satisfy
such requirements constitutes per se a violation of Section 8. This is
tantamount to saying that Section 302 created, in effect, a new specific
unfair labor practice where none existed before .4
We disagree with this interpretation of the impact of the Section
302 amendment to the Act. In our opinion, the limitations on check-
off in Section 302 were intended neither to create a new unfair labor
practice, nor even to be considered in determining whether checkoff
violates Section 8 of the Act. We reach this conclusion for the
following reasons : (1) The original House Bill as reported and
1 Salant & Salant, Incorporated, 87 NLRB 36.
2 This finding is limited to one of illegal assistance and support . See The Carpenter
Steel Company, 76 NLRB 670.
8 The charge initiating this case was filed and served prior to the effective date of the
amendments to the Act , and the unfair labor practices here found were alleged in the
amended complaint to reflect additional unfair labor practices uncovered during the
investigation of that charge which occurred subsequent to the filing and service of the
charge. We therefore find no merit in the Respondent's motion to dismiss this part of
the complaint on the basis of the limitations of Section 10 (b) of the Act, and the
motion is hereby denied. Millsboro Cotton Mills, 80 NLRB 1107 ; Cathey Lumber Com-
pany, 86 NLRB 157.
The original Act, of course , placed no limitations on checkoff other than , as will be
discussed below, in those situations where checkoff violated the broad provisions of
Section 8 of the Act.
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
passed 5 specifically made a checkoff that did not meet certain re-
quirements6 an unfair labor practice under Section 8 (a) (2), but
this provision was eliminated from that section in conference,' and
from the Bill as finally enacted, thereby implying that unlawful
checkoff was not intended to be made a per se unfair labor practice;
(2) The restrictions on checkoff appear instead in Title III of the
Act, with a similar implication; and (3) Section 302 itself establishes
what was plainly intended to be the method of enforcing and prevent-
ing violations of its provisions, viz, criminal sanctions" and inj unc-
tion by U. S. District Courts, upon prosecution and petition for in-
junction by the Attorney General.9 Thus, the Act itself and its
legislative history compel the conclusion that Congress did not intend
the newly created limitations on checkoff in Section 302 to have any
impact on the unfair labor practice jurisdiction of this Board under
Section 8, so as either to create or not create a per se violation of Sec-
tion 8 solely on the basis of a violation of those limitations. In our
opinion, the intent of Congress was rather to leave undisturbed the
application by the Board to checkoff, as well as other conduct not
specifically proscribed by amendments to Section 8, its preexisting
criteria for determining whether such conduct as is engaged in con-
stitutes a violation of the broad proscriptions of Section 8. The
intent was neither to supplement, nor to detract from, such proscrip-
tion of checkoff as Section 8 imposes completely apart from, and
independently of, the restrictions on checkoff in Section 302.
Accordingly, without regard to whether the checkoff involved in
the instant case failed to meet the requirements of Section 302, we
turn to a consideration. of whether it violated any of the provisions of
Section 8 of the Act. As already indicated, there is nothing in the
nature of a checkoff agreement which is per se illegal under any of
the provisions of Section 8. Indeed, we have generally held that such
an agreement constitutes a violation of the Act 10 only in those situa-
tions where it was made with an organization that was company-
dominated, or which for some other reason did not represent an
uncoerced majority of the employees." In the instant case, we have
5 H. R. 3020.
6 These requirements were somewhat different than those finally enacted in Section 3(n.
House Conference Report No. 510, on H. R. 3020.
s Section 302 (d) makes a willful violation of any of the provisions of the section a
misdemeanor.
9 This is not to say, as will be discussed below, that we are of the opinion that the
Attorney General has exclusive jurisdiction in the field of checkoff, and that the Board
has no jurisdiction to find any checkoff an - unfair labor practice subject to Board remedy.
"And we have correspondingly ordered the repayment to the employees of dues checked
off pursuant to such an agreement.
ii See e. g. Virginia Electric and Power Company v. N. L. If. B., 319 U. S. 533 , affirming
44 NLRB 404; Food Machinery Corporation, 41 NLRB 1428. See also Bluefield Garment
Manufacturers, 75 NLRB 447, where we held that the checkoff of dues pursuant to a
SALANT & SALANT, INC. 819
found only that the Respondent has coerced its employees in violation
of Section 8 (a) (1), and has given assistance and support to the AFL
in violation of Section 8 (a) (2), solely by virtue of its renewal on
December 1, 1947, and continuance thereafter of the illegal union-
security clause in its contract with the AFL. Moreover, the union-
security clause was perfectly valid when the contract first became
effective on December 2, 1946,12 and the AFL was at that time the
freely chosen representative of a majority of the employees, with no
rival union representation claim present. Under these circumstances,
it cannot be said that the checkoff agreement inured to the benefit of
a union that represented the type of coerced majority that renders the
checkoff itself unlawful.13 We find, therefore, that the Respondent
violated neither Section 8 (a) (1) nor Section 8 (a) (2) of the Act,
as alleged in the complaint, by virtue of the checkoff provision in its
December 4, 1946, contract with the AFL, or the renewal and continu-
ance thereof on and after December 1, 1947.
4. We agree with the Trial Examiner that Warren Owen was dis-
charged for cause. Although there were certain inconsistencies in
the testimony of Plant Superintendent Shoemaker and Foreman Car-
ter concerning the reasons for, and the circumstances surrounding, the
discharge, we are persuaded, as found by the Trial Examiner, that
Owen was discharged for performing unsatisfactory work and for
interfering with the cutters and spreaders in the performance of their
work. In any event, there is no proof, as found by the Trial Exam-
iner, that the Respondent had any knowledge of Owen's union affilia-
tion and activities prior to his discharge, on which to premise a finding
that Owen's discharge was discriminatory.
5. The Trial Examiner found, in substance, and we agree, that
Homer Bucy was made a supervisor on July 29, 1946,15 and that the
Respondent had the right thereafter to demand that Bucy not engage
in union activity and to discharge him, as it did, for refusing to
accede to that demand.
contract that required membership in, and was executed with one union in the face of a
rival union representation claim , was unlawful , in which case the contracting union thus
also did not represent an uncoerced majority.
32 The union -security clause was subsequently rendered illegal on December 1, 1947,
only by virtue of the amendments of the Act.
13 It is rather a situation where a finding of a violation of Section 8 could be premised
only on a possible violation of the checkoff restriction's of Section 302, which , for the
reasons stated above, would be an improper basis for such a finding , and therefore need
not be detailed here.
14 Cf. Abraham B. Karron, 41 NLRB 1454; France Foundry & Machine Company, 49
NLRB 122; and Ken -Rad Tube & Lamp Corporation , 62 NLRB 21.
15 The credited testimony of Forelady Loving shows clearly that Bucy at least had the
independent authority to assign employees to particular work, and was therefore a
supervisor.
882191-51-53
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Because the union activity of Bucy in question occurred in 1946,
when the original Act was still in effect, such activity was protected
despite Bucy's supervisory status, and was not affected by the 1947
amendments to the Act.ls However, even then that protection was
subordinate to the right of the Respondent to protect its neutrality by
requiring Bucy to refrain from unneutral activities which might be
imputed to the Respondent, and to take appropriate measures to that
end. 17 The evidence shows that such was the motivation of the
Respondent both in demanding that Bucy refrain from engaging in
any union activity and in discharging him for refusing to do so.18
Under such circumstances, Bucy's discharge was not violative of the
Act 19
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in con-
nection with the operations of the Respondent described in Section I of
the Intermediate Report, have a close, intimate, and substantial rela-
tion 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 prac-
tices, we shall order that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
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
1G Republic Steel Corporation, 77 NLRB 11.07.
17 Soss Manufacturing Company, et al., 56 NLRB 348. It is immaterial that the Respond-
ent's belief that Bucy was a supervisor may have been somewhat uncertain, as expressed
to Bucy. The right of the Respondent to demand that Bucy cease his union activity
for the purpose of preserving the Respondent's neutrality was fully protected in view
of Bucy's, actual supervisory status.
18 This was the reason expressed by the Respondent to Bucy on both occasions and
there is no evidence that the Respondent was otherwise motivated. We do not consider
the Respondent's unlawful conduct, which we have found above, in renewing the union-
security provision in its contract with the AFL, as constituting evidence of an attempt
to interfere with the rights guaranteed to Bucy under the original Act, in view of the fact
that such conduct occurred more than a year after Bucy's discharge. Cf. Artcraft Hosiery
Company, 78 NLRB 333.
10 Cf. Sohio Pipe Line Company, 75 NLRB 858.
In view of our findings herein , we find it unnecessary to consider the Trial Examiner's
further finding that, irrespective of Bucy's status as a foreman, the Respondent was
justified in discharging him for engaging in union activities during working hours. Ac=
cordingly, we do not adopt that finding, without expressing either agreement or disagree-
ment with it.
SALANT .& SALANT, INC. 821
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 persuaded that
the effect of the coercive conduct would not be eradicated were we to
permit the AFL to continue to enjoy a representative status strength-
ened 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 purposes and policies of.
the Act, we shall order the Respondent to withdraw recognition front.
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 they
Board.20 Nothing in our order, however, shall be deemed to require
the Respondent to vary or abandon those wages, hours, security, or
other substantive features of its relations with its employees, estab-
lished in the performance of said contract, or to prejudice the assertionll
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 :
CONCLUSIONS OF LAW
1. By continuing and reaffirming its illegal contract with United
Garment Workers of America, AFL, thereby interfering with, restrain-
ing, and coercing its employees in their exercise of the rights guaran-
teed in Section 7 of the Act, the Respondent has engaged in, and is,
engaging in, unfair labor practices within the meaning of Section
(a) '(1) of the Act.
2. By assisting and supporting United Garment Workers of Amer-
ica, AFL, through the illegal provisions of said contract, the Respond-
ent 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.
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,
30 Salant & Salant, Incorporated, supra.
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inc., Paris, 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 ony other labor or-
ganization, 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 National
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 Paris, Tennessee, plant, for the purpose 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 modifica-
wtion, extension, supplement, or renewal thereof, or to any other con-
tract, 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;
(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 activities
for the purposes of collective bargaining, or other mutual aid or pro-
tection, 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.
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-
spondent's employees for the purpose 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
SALANT & SALANT, INC. 823
organization shall have been certified by the National Labor Relations
Board;
(b) Post at its plant at Paris, Tennessee, copies of the notice at-
tached hereto, marked Appendix A.21 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 in
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.
MEMBER STYLES took no part in the consideration of the above
Decision and Order.
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.
WE WILL withdraw and withhold all recognition from UNITED
GARMENT WORKERS OF AMERICA, AFL, as the representative of
any of our employees at our Paris, Tennessee, plant, for the pur-
poses 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
Q' In the event this Order is enforced by a 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."
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AMERICA, AFL , shall have been certified by the National Labor
Relations Board as the bargaining'representative.
WE WILL cease performing or giving effect to our contract of
November 23, 1948, with UNITED GARMENT WORKERS OF AMERICA,
AFL, covering employees at our Paris, 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,
restrain , 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 AMERICA, AFL , or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing , to engage , in concerted activities 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 au-
thorized in Section 8 (a) (3) of the Act.
SALANT & SALANT, INC., -
Employer.
By ----------------------------
Dated -------------------- - (Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT
Messrs. Victor-H. Hess, Jr., and William P. Alexander, for the General Counsel.
Messrs. Joseph Martin and R. T. Cochran, for the Respondent.
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 January
10, 1947, and May 10, 1948,1 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
1 The original charge was filed on November 29, 1946.
SALANT & SALANT, INC. 825
for the Fifteenth Region (New Orleans, Louisiana), issued his complaint on
June 10, 1948, alleging that Salant & Salant, Incorporated, Paris, 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, 61 Stat. 136, herein called the Act.
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 the United Garment Workers of America.
On June 21, 1948, the Respondent duly filed an answer admitting certain al-
legations of the complaint with respect to its corporate existence, the nature
and extent of the business transacted by it, but denying the commission of the
alleged unfair labor practices.
• With respect to the unfair labor practices, the complaint, as amended , in sub-
stance alleged that the Respondent (1) on certain stated dates discharged three
named employees and thereafter refused to reinstate them, or any of them, be-
cause each of said three persons had joined and had assisted the Union and had
engaged in concerted activities with his or her coworkers for the purposes of col-
lective bargaining and other mutual aid and protection; (2) since about May
1; 1946,'through certain named persons and others, engaged in certain activities
and made certain statements which acts and statements interfered with, re-
strained, 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, spon-
sored, 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 has contributed support thereto , and also has interfered
with its administration.
On October 28, 1948, the General Counsel served upon the Respondent, the
Union, and AFL an "Amendment to Complaint" which alleged, in substance, that
the Respondent' and AFL, on or about December 2, 1946, entered into an agree-
ment providing, as a condition of continuous employment with the Respondent,
membership in AFL , and since that date , and more particularly since December
2, 1947, the parties to the said agreement have enforced the terms of the said
agreement in violation of the Act. On March 9, 1949, the Respondent duly filed
an answer to "Amendment to Complaint" wherein it denied the allegations of
the "Amendment to Complaint."
.Pursuant to notice, a hearing was held in Paris, Tennessee, from March 14
to 17, 1949, before Howard Myers, the Trial Examiner. The Respondent and
the General Counsel were represented by counsel and participated in the hear-
ing. Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence pertinent to the issues was afforded all parties.
At the opening of the hearing, the motion of AFL to intervene was granted
without objection. Thereupon, AFL moved to dismiss the complaint, as amended,
with respect to the allegations, thereof that the Respondent initiated, formed,
sponsored, promoted, assisted, dominated, supported, and interfered with the
administration of AFL. The motion was denied. AFL then moved to make
the complaint, as amended, "more definite and certain and to strike." The mo-
tion was denied. An answer was then duly filed by AFL, which is in the nature
of a general denial of all the allegations of the complaint, as amended, with
respect to the alleged unfair labor practices pertaining to AFL.
Before the taking of any evidence, counsel for the Respondent made several
motions to dismiss the complaint, as amended, in its entirety, or, in the alter-'
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
native, to dismiss certain portions thereof. The motion to dismiss the complaint,
as amended, with respect to Darreen Owen, in which the General Counsel joined,
was granted. The other motions were denied. At the conclusion of the General
Counsels case-in-chief, the Respondent made numerous motions to dismiss the
complaint in its entirety, or certain portions thereof, on the ground of lack of
proof. Some of the motions were granted, some denied, and decisions on others
were reserved. The motion with respect to the dismissal of the complaint on
the ground that the amended charges were not filed, or served, within the time
prescribed by Section 10 (b) of the Act was denied. The motions of AFL to dis-
miss the complaint for lack of proof were also denied.
At the conclusion of the taking of the evidence, the General Counsel moved
to conform the pleadings to the proof with respect to the correction of misspelled
names, places , and the like. The motion was granted without objection.
. Counsel for the Respondent and counsel for AFL then renewed the various
motions which they made at the opening of the hearing and at the end of the
General Counsel's case-in-chief, which were either denied or upon which decision
was reserved. Decisions thereon were reserved. The motions are disposed of
as hereinafter set forth.
The parties were then informed that they might file briefs and proposed find-
ings of fact and conclusions of law with the undersigned on or before April 1,
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 following :
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 Paris, Tennessee, the employees of which. are the only ones
involved in this proceeding. At its Paris plant, the Respondent is engaged, and
during all times material herein was engaged, in the manufacture , sale, and dis-
tribution of men's work shirts. During 1946, the Respondent purchased raw
materials valued in excess of $100,000, approximately all of which were shipped
to the said plant from points located outside the State of Tennessee. During the
same year, the Respondent manufactured at its Paris plant men's work shirts
having a value in excess of $200,000, substantially all of which were shipped from
the said plant to customers located outside the State of Tennessee.
The undersigned finds that the Respondent, at its Paris, Tennessee, plant is
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
with the American Federation of Labor, are labor organizations admitting to
membership employees of the Respondent.
2 Upon the requests of the Respondent and AFL , the time was extended to and including
June 6, 1949.
SALANT & SALANT, INC.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The background
827
Under date of August 8, 1946, Mrs . Ida Lee Merchant , international repre-
sentative of AFL, wrote the New York offices of the Respondent claiming that
AFL represented , for the purpose of collective bargaining , a majority of the
persons employed at the Paris plant and requested an appointment for the pur-
pose of discussing a collective bargaining contract.
On August 28, a card check was made which disclosed that AFL represented
305 of the 308 persons whose names appeared on the plant 's payroll of August 10.
Under date of August 29, AFL wrote the New York offices of the Respondent
that since the results of the card check showed that AFL had been selected and
designated the collective bargaining representative by a vast majority of the
employees , it demanded that the Respondent recognize it as such representative
and set a date for a bargaining conference.
Under date of September 11, Joseph Martin , Esq., the Respondent 's attorney,
wrote AFL that the matter of negotiating a contract with AFL had been turned
over to him ; that since the results of the card check disclosed that AFL repre-
sented practically all the employees in the plant , the Respondent recognized
AFL as the collective bargaining representative of those employees ; and that he
would arrange for a bargaining conference at a later date.
In the fore part of October , representatives of the Respondent met with repre-
sentatives of AFL and discussed a contract . Another conference was held in
November . On December 4, a written collective bargaining contract was entered
into by the Respondent and AFL.
In the interim , the Union started an organizational campaign . This campaign,
however, did not commence until October 15, 1946. Thereafter , and until De-
cember 1, 1946 , the Union held meetings about once a week at the homes of some
of the employees , and one meeting in a Paris schoolhouse . At no time , however,
did the Union claim to represent a majority of the employees of the Paris plant,
nor did it make a demand upon the Respondent to be recognized as the exclusive
collective bargaining representative of the Paris plant employees.
The record indicates that in September 1946, Clarence Highfill was elected
president of the local AFL union , but shortly thereafter the employees became
dissatisfied with him and elected or selected James Call as their president. High-
fill, as chairman of the negotiating committee , sat in on one or two bargaining
conferences , as did Call and other employees ' representatives.
After the schism had arisen within the ranks of the AFL local, several union
meetings were held at Highfill's home. In fact, when James Mullins , in whose
charge the Union's campaign was, came to Paris on October 15, Highfill was
one of the first employees he approached. Despite all this, Highfill did not join
the Union until January 1, 1947.
B. The alleged interference , restraint , and coercion
Highfill testified that in January 1947, shortly after he had joined the Union,
forelady Velma Mohon said to him " there was a bunch " of the employees "ahang-
ing around that CIO, . . . and that is the reason Bucy and Owen had got
fired, . . . [she stated ] the names of two or three others who would go if
they kept hanging after that CIO bunch , and that young Mr. Call was watching
very close the ones that were hanging around the CIO."
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Highfill also testified that after he joined the Union, his work was kept under
closer scrutiny by Foreman James Lee Morris and that the production of the
bundle boys, of whom he was one, was greatly increased.
Mohon denied that she ever made the statements which Highfill attributed to
her. She further denied that she told Highfill that Bucy and Owen were dis-
charged because of their affiliation with the Union. In fact, she denied knowing
Owen.
Morris denied that he ever knew that Highfill was a member of the Union or
that he increased Highfill's, or any other bundle boy's, production quota after
.January 1, 1947. He also denied that he kept Highfill's work under closer
.scrutiny after that date.
Morris testified that a bundle boy did not have a production quota, because
he was a time worker whose main duties were to carry material to the machine
operators and to see that those operators had sufficient materials at all times.
The undersigned credits Mohon's and Morris' denials of the statements and ac-
tivities attributed to each of them by Highfill. The undersigned credits the
testimony of Mohon and Morris and finds that neither of them did, or said, any-
thing violative of the Act. The undersigned cannot conceive why Mohon,. in
January 1947, should caution Highfill, or any other employee, to refrain from
associating with the Union, since AFL apd the Respondent had consummated
a 1-year collective bargaining contract but a month prior to the date of the
alleged conversation with Highfill, and the Union was no longer in the picture.
Furthermore, Highfill kept his membership and activities in behalf of the Union
a secret. He wore no union button or other emblem of the Union and admittedly
did not discuss his membership in the Union with any supervisor. As far as
the record shows, Highfill's affiliation was known only to adherents of the Union.
Highfill and the seven other bundle boys were discharged in the early part
of 1948, after the. plant had been reconverted and the jobs of bundle boys were
eliminated. This fact, coupled with the employees' repudiation of his election
as president of the AFL local, leads the undersigned to believe that Highfill con-
cocted his testimony for the purpose of revenge against the Respondent and AFL,
and, therefore, his testimony is not credited.
Katie Apple testified that in October or November 1946, Forelady Maidie
Dodson said to her "it looks like you better go ahead and sign the" AFL card.
Dodson denied making the statement and testified that when Apple asked her
about signing an AFL membership application card, she replied, "I didn't have
any authority to advise [you] . . . use [your] own judgment."
The undersigned finds Dodson's version of what transpired during the
aforesaid conversation to be substantially in accord with the facts. In the first
place, Apple places the conversation in October or November, when admittedly
she became a member of AFL the previous August. In the second place, Apple
did not impress the undersigned to be a witness whose testimony could be relied
upon. Her testimony was quite confused and self-contradictory.
Darreen Owen, whose alleged discriminatory discharge case was dismissed at
the opening of the hearing herein, testified, and the undersigned finds, that she
joined AFL in July or August 1946; that she joined the Union in the fall of 1946;
and that no supervisory employees ever discussed unions or unionization with her.
Regarding an incident that took place in July or August 1946, Darreen Owen
testified, and the undersigned finds, that, while at work, she heard an employee,
whose identity she did not remember, ask Foreman Holloway if he thought
it was all right to sign an AFL card and that Holloway-replied he "guessed so ."
SALA1'T & SALANT, INC. 829'
It is clear that Holloway's remark is not only not violative of the Act, but, on
the other hand, is a protected expression of opinion, within the meaning of
Section 8 (c) of the Act.
Lucille Bomar Peeples testified, and the undersigned finds, that in August
1946 she signed an AFL card in the plant at the request of another employee,
Adrian Brewer ; that when Brewer asked her to sign the card Forelady Minnie
Williams was nearby; that Brewer then asked Williams to turn her head while
the card was being signed ; and that Williams did so, saying, "All right, I am
not looking."
Peeples also testified, and the undersigned finds, that in May 1948, at the
conclusion of a grievance conference, M. H. Gold, the Respondent's representative
at the conference, stated, to quote Peeples, "he was glad that he could come to
an agreement ; that he knew when he sat down to talk with AFL representatives
that they could come to an agreement and he couldn't say so with some of his
plants that had CIO in them."
Gold's remarks are not violative of the Act. Likewise, Williams' remarks
and turning her head away while Peeples signed an AFL card are not violative
of the Act.
Katherine Price testified that during September and October 1946, she and
Forelady Motion talked about the affairs of AFL "practically every day" ; that
during those conversations Mohon queried her as to whether or not she regu-
larly attended AFL meetings; that Motion advised her to attend all AFL meet-
ings and that she joined the Union in October 1946.
Price further testified that one morning, after she had attended a union meet-
ing the previous evening, Mohon asked her where she had been the night before
and that she replied that it was none of Mohon's business.
Regarding a conversation she bad in September or October 1946 with Mohon,
at which Peeples allegedly was present, Price testified that Mohon, to quote
Price, "told us that we would be fired if we kept foolipg around with the CIO
meetings." Price also testified that sometime in October. Mohon told her that if
the plant "went CIO the plant would close; that the company wouldn't recog-
nize the CIO."
Mohon denied making the statements attributed to her by Price. Mohon was
an honest and forthright witness whose entire testimony the undersigned credits.
Price did not so impress the undersigned. Price admitted that she never
discussed her union membership and activities in behalf of the Union with any
supervisor; that she did not wear any union button or emblem in the plant;
that, as far as she knew, no supervisor was aware that she was a member of the
Union; and that it was common knowledge around the plant that the Respond-
ent, in September and October 1946, was bargaining with AFL. These admis-
sions lead the undersigned to give no credence to Price's testimony wherein she
attributes certain anti-Union and pro-AFL statements to.Mohon.
The undersigned credits Motion's denials and finds that she did not make the
statements attributed to her by Price. This finding is buttressed by the fact,
although Price testified that on one occasion Peeples was present when Mohon
allegedly made an anti-Union remark, Peeples did not mention the incident in
her testimony.
William Crouch testified that he worked as a bundle boy during his entire
employment with the Respondent-July 1943 to January 1948; that he joined
AFL in September 1946; that prior to joining AFL he had a conversation with
his forelady, Dodson, in the latter part of August or early in September, in
which the following is a part thereof :
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. . . she (Dodson) wanted to know if I didn't want to help in getting
the AF of L in the plant, that the plant Salant & Salant was willing to spend
$50,000 to keep the CIO out and I told her I would, so I go downstairs with
Kate Carroway and get the cards.
Crouch further testified that after the above-related conversation, he went
downstairs with Carroway, a nonsupervisory employee, and the latter gave him
a handful of AFL cards; that he spent the next 2 or 3 days going through the
various departments located on the floor on which he worked obtaining signa-
tures to the cards ; that whenever he needed additional cards he would secure
them from Carroway ; that he secured about 35 or 40 signatures to the cards,
but could recall the names of only 4 persons who signed cards ; and that during
the 2 or 3 days he spent securing signatures to AFL cards he did "practically"
no work as a bundle boy.
Dodson denied making the statements attributed to her by Crouch and she
also denied requesting him to secure members for AFL. The undersigned credits
Dodson's denials and finds that she did not request Crouch to secure anyone's
signature to an AFL card nor did she make the statements attributed to her by
.Crouch. At the time of the alleged conversation, the card check had been made
which disclosed that all but two or three employees had designated AFL their
bargaining representative. The Union, moreover, had no one attempting to
organize the plant at the time of this alleged conversation and hence it is in-
conceivable to the undersigned why Dodson, or any other supervisor, would
.say that the Respondent would be "willing to spend $50,000 to keep the" Union
out of the plant when there is no'evidence that the Union was attempting to come
into the plant.
The undersigned finds that the credible evidence, as summarized above, clearly
shows that the Respondent did not engage in any of the alleged unfair labor
practices with respect to Section 8 (a) (1) of the Act. Accordingly, the under-
signed recommends that'the 8 (a) (1) allegations of the complaint, as amended,
be dismissed.
C. The alleged violation of Section 8 (a) (2) of the Act
The General Counsel contended at the hearing that the anti-Union and pro-
AFL statements and activities of the Respondent's supervisory staff, more fully
discussed above, were not only violative of Section 8 (a) (1) of the Act but they
were likewise violative of Section 8 (a) (2) thereof. Since it has been found
that the said statements and activities relied upon were not made nor engaged
in, it follows that the General Counsel's contention is not supported by the record
in that respect.
In support of his contention that AFL was formed at the behest of the Re-
spondent and that it has been existing with aid and support of the Respondent,
the General Counsel points to the contract which the Respondent and AFL
executed on December 4, 1946, as evidence of illegal support and aid.
The record is manifestly clear, and the undersigned finds, that AFL came into
being without the aid or suggestion of the Respondent. As far as the record
discloses, it came into existence, and is existing, as a result of the desires of the
employees. In fact, almost 2 months prior to any attempt by the Union to
organize the plant, practically every employee had signed cards designating AFL
their collective bargaining representative. There is no credible evidence in the
record that the employees did not select AFL freely and without any coercion on
SALANT & SALANT, INC. 831
the part of the Respondent or AFL. In short, AFL was the untrammeled choice
of the employees.
After a card check, and prior to the advent of the Union, the Respondent
recognized the AFL as the collective bargaining representative of its employees
and dealt with AFL as such representative.
As a result of a series of conferences, the parties came to an agreement, the
terms of which were reduced to writing. This contract, dated December 4, 1946,
was to be renewed for 1 year from December 4, 1947, unless either party thereto
notified the other party, within a specified time, of its desire to amend or to termi-
nate the agreement.
The General Counsel contended that certain clauses of the contract are now
repugnant to the Act, as amended. The specific clauses under attack by the
General Counsel read as follows :
ARTICLE I1-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 members of the Union, as indicated above.
The said contract also provided for a checkoff of dues upon individual written
authorizations ,by the employees. Beginning on July 1, 1948, the Respondent
refused to honor the checkoff 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 thereto 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, 194S, the. Respondent and AFL entered into a
2-year contract, effective December 1, 1948, with provision to terminate on Decem-
ber 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 those facts, turns on the question of whether or not the contract is violative
of the Act.
The clauses of the contract under attack do 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 they do 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 obligation of the "old" and the "new" employees to maintain
832 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
membership in AFL after becoming members thereof.' At best, the agreement
does no more than encourage membership in AFL. That fact, standing alone,
is not repugnant to the Act, as amended.' Moreover, neither contracting party
considered the agreement to be a union-shop agreement.
There is no contention that the contract was not valid when made. The
General Counsel contended that the renewal thereof on December 1, 1947, was
violative of the Act. With this contention the undersigned cannot concur.
The proviso of Section 8 (a) (3) of the Act states :
... nothing in this Act, or in any other statute of the United States,
shall preclude any employer from making an agreement with a labor
organization . . . to require as a condition of employment membership
therein on or after the thirtieth day following the beginning of such employ-
ment or the effective date of such agreement, whichever is the later, .. .
(ii) if, following the most recent election held as provided in section 9 (e)
the Board shall have certified that at least a majority of the employees eligi-
ble to vote in such election have voted to authorize such labor organization
to make such an 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
recommends that the allegations of the complaint, as amended, that the
Respondent violated Section 8 (a) (1) and (2) of the Act with respect to the said
agreement 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 hearing herein, because the contract by its
terms had expired, and has 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 Tennessee, prohibited the making of a collective bargaining con-
tract containing a union-shop provision.
Furthermore, the checkoff clause here in question is not repugnant to the Act.
Dues were, and are, checked off from the wages only of. those employees who
voluntarily and in writing authorized it. Section 302 of the Act provides that
dues may be checked-off "provided that the employer has received from each
employee, on whose account such deductions are made, a written assignment
which shall not be irrevocable for a period of more than one year, or beyond the
termination date of the applicable bargaining agreement, whichever occurs
sooner." Hence, the only requirement under the Act for a checkoff is a
voluntary written authorization to do so. Such authorizations were obtained
from each employee so desiring to have his dues checked off.
D. The alleged discriminatory discharges
Warren Owen was first employed at the plant in May 1944, as a cloth spreader.
Thereafter he was transferred to the job of tying and ticketing material.
Owen joined AFL in September 1946, and later, around the middle of October
of that year, he joined the Union. He ceased his activities in behalf of AFL
when he became a member of the Union.
Owen testified that he had a conversation with Foreman Morris in September
1946, which took place before he signed an AFL card; that he approached Morris
8 See M. J. B. Co., 83 NLRB 489.
4 Ingalls Shipbuilding Corporation , 83 NLRB 367.
SALANT & SALANT, INC. 833
and asked Morris about signing a card ; that he told Morris, "I understood that
the plant wanted us to sign AF of L cards, and I asked him if that was about
right, if that was right, and he said he guessed it was about right, that he didn't
know that he wasn't having anything to do with it."
Regarding his discharge on November 7, 1946, Owen testified that his foreman,
James Carter, told him that Fred Shoemaker, the plant superintendent, wanted
to see him; that he went to Shoemaker's office and Shoemaker said, to quote
Owen, "He understood that I was quitting the last of October and that he had
decided to let me go" now ; that he knew that Shoemaker was referring to a
previous conversation had with him in October 1946, wherein he had told Shoe-
maker that he had to have a wage increase or else he had to quit because his
riders "had quit and owing to the way car expenses had advanced that I couldn't
hardly get by on what I was making ...'; that Shoemaker left the office
after instructing the office girl to give him his check and separation slip,
both of which had been prepared prior to. his going into Shoemaker's office ; that
when he noticed that the separation slip bore the notation that he was discharged
for "obstructing fellow workers," he sought out Shoemaker and demanded an
explanation of this notation, adding that he wanted Shoemaker to put on the
slip the real reason for being discharged; and that after he told Shoemaker that
he believed he was fired because of his union affiliation, Shoemaker replied, to
quote Owen, "He didnt give a damn what I belonged to, that he wasn't aiming
to have the plant disrupted by no such stuff."
The Respondent contended at the hearing, and in its brief maintained, that
Owen's union affiliation and activities were unknown to it at the time of Owen's
discharge and that Owen was discharged solely because of poor workmanship.
Regarding the reason for Owen's discharge, Foreman Carter testified that
approximately 2 weeks prior to Owen's discharge, he requested Owen to drill
holes in certain shirt fronts ; that Owen did the job improperly and Owen had to
be corrected about it; that a week later, Owen interfered with the working of
two crews of spreaders and two cutters while he carried on a conversation with
them ; that he interrupted the conversation and told Owen that if he did not stop
talking to the spreaders and cutters and thereby forcing them to stop their work
while listening to him, he would be discharged; and that on the day of Owen's
discharge, Owen not only was interfering with the cutters and spreaders by talk-
ing to them, but Owen had incorrectly tied up the material on which he had
been working, and also needlessly had allowed other material to accumulate
thereby preventing the operators from receiving the material. Carter further
testified that when he noticed that Owen was interfering with the cutters and
spreaders and was doing his own job improperly he reported the matter to
Shoemaker; and that Shoemaker thereupon decided to discharge Owen.
Shoemaker testified that before he discharged Owen, he discussed the matter
with Carter and they decided that because of Owen's unsatisfactory work, they
would discharge him; that Owen's unsatisfactory work consisted of, among
others, getting tickets mixed up, drilling the shirt fronts improperly, mixing up
collar bands with shirt fronts, and interfering with the work of the cutters and
spreaders.
Owen admitted that he had been warned about unsatisfactory work prior to
his discharge; that "they got on" him about the way certain material was
punched ; that he was corrected about getting tickets mixed up ; and that Carter,
in particular,. had "corrected [him] some" prior to discharge. He denied, how-
834 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
ever, that he had been warned to cease talking to the cutters and spreaders or
warned about interfering with the work of the cutters and spreaders.
The undersigned is of the opinion, and finds, that Carter's and Shoemaker's
testimony with respect to the matters leading up to Owen' s discharge are in
accordance with the facts. The undersigned further finds that Owen was dis-
charged for performing unsatisfactory work and for interfering with the cutters
and spreaders in the performance of their duties.
In an effort to establish the Respondent's knowledge of Owen's union member-
ship and activities prior to his discharge, the General Counsel relies upon the
following incidents : Owen testified that in the latter part of October or early in
November, while he was standing in a street in Paris, holding some union mem-
bership application cards in his hand and discussing the Union with a fellow
worker, Foreman John Parker "came along, and he (Parker) just turned around
and stared at us"; that on a later date, while he was standing in the street,
holding some union -membership application cards in his hand and discussing
the Union with a different plant employee, Parker "came along" while they were
,talking and "just looked at us, looked hard at me"; and that on the day of his
discharge, just prior to the commencement of work, he was observed by Foreman
Foster Brown counting the employees' time cards that were in the rack near the
time clock.'
With respect to the above-referred-to incidents that took place in the street,
Owen admitted that on each occasion while he was talking about the Union when
Parker passed, other people also were passing by.
Parker admitted that he had seen Owen in the streets of Paris (a town of
about five or six thousand persons) during 1946, but added that he did not pay
any attention to whom Owen was talking.. Parker denied that he stopped and
stared at Owen; that he knew that Owen was holding union cards in his hand;
that he knew the color of the union cards ; that lie knew that Owen was soliciting
membership for the Union; that he knew that Owen belonged to either AFL or
the Union; and that he told Shoemaker, or any other supervisor, that he had
seen Owen with union cards in his hands, talking to anyone in the streets of Paris.
The undersigned credits the testimony of Parker and finds that when Parker
saw Owen talking to some other employee of the plant on the sidewalks of Paris,
on the particular occasions referred to above, he did not know that Owen had
union cards in his hand or that Owen was talking about the Union.
Shoemaker and Carter testified, and the undersigned finds, that they did not
have any knowledge of Owen's union affiliation and activities prior to Owen's
discharge and that no one told them that Owen was soliciting for the Union.
Upon the entire record in the case, the undersigned finds that the Respondent
did not know that Owen was a member or active in behalf of the Union prior to
his discharge.
Having found that Owen's membership and activities in behalf of the Union
played no part in the Respondent's determination to discharge Owen and that
he was discharged for good and sufficient cause, the undersigned recommends
that the complaint, as amended, be dismissed as to Warren Owen.
Homer Bucy worked at the plant from April 1, 1943, to the date of his discharge,
November 20, 1946.
Bucy joined AFL about the middle of October 1946, and about the first of
November of that year, he joined the Union.
Owen testified he had been instructed by the Union to ascertain bow many employees
punched their time cards on that particular clock.
SALANT & SALANT, INC. 835
Bucy was discharged on November 20, 1946, for the reason, as appears on
his separation slip, that he was a "C. I. O. organizer in the plant." The ques-
tion here to be resolved is the legality of the discharge.
Bucy testified that at the time he was discharged he was being paid 75 cents.
per hour; that in August 1946 he "got a dime raise when the others got a nickel"
raise °; and that in June or July 1946 he had asked Foreman Holloway for a
raise, and the latter said, "You'll get it." He denied, however, that he was
promoted to a supervisory position, or advised of such a promotion at the time
he received his wage increases in July and August 1946. He further denied that
Holloway advised him at any time that he was being reclassified to a higher
position.
Bucy also testified that he was never informed by management that he had
to be given a higher classification before his wages could be increased because
he was then receiving more money than other bundle boys, or that his duties
were changed in any manner after receiving the wage increases, or that he
ever exercised any supervisory authority during his entire employment at the
plant.
Bucy further testified that 2 or 3 days prior to his discharge Foreman Morris.
sent him to Shoemaker's office. What transpired there, Bucy testified, on direct,
examination, as follows :
Q. All right, sir. Will you tell us what was said at that time?
A. Mr. Shoemaker, lie says, "I guess you know that your are drawing fore-
man's pay and you better leave that union alone." I said, "It's news to me."
That I knew nothing about I was drawing foreman's pay, and he says, "I'm
just giving you a tip, better leave it alone," and that was about all that was
said.
Q. Did he say anything about you doing foreman's work?
A. No, sir, he didn't say a word about foreman's work.
Q. Did he tell you you were a foreman at that time?
A. No. he said, "You are drawing a foreman's pay."
Q. Did he tell you what the tip was he was giving you?
A. Didn't say anything about a tip, he says, "I'm giving you a tip, you better
leave it alone."
Trial Examiner MYERS. What did you say, if anything?
The WITNESS. What did I say? I says, "Well, that's news to me, I didn't
know I was drawing foreman's pay."
Trial Examiner MYERS. Was anything else said?
The WITNESS. That was all, what I repeated.
Trial Examiner MYERS. Then you got up and left the office?
The WITNESS. Yes, Sir.
On cross-examination, Bucy testified about the above-referred interview with
Shoemaker as follows :
By Mr. MARTIN :
Q. I will ask you if he didn't tell you on that occasion that he wanted you
to quit any activities you were engaged in until your status could be deter-
mined or some conclusion come to?
A. He didn't; nothing like that, no, sir, he (lid not.
Q. Did you tell him that you were going to do what he said?
A. No, Sir, I didn't tell him anything.
° He received two 5-cent raises ; one the end of July and the other in August.
852191-51-54
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. You never made any statement?
A. No, sir.
Q. The only thing that you said during the whole conversation was, that
is news to me?
A. That is right.
Q. And you never made any other statement?
A. If I did, I don 't remember it. I can't recall it. It's been a long time
since that statement was made, two years and a half.
Bucy further denied that during his conversation with Shoemaker any mem-
tion was made of his foreman's position, or that Shoemaker then told him that
he had supervisory status, or that he was shown any company record indicating
his job classification.
Regarding the events of November 20, Bucy testified, on direct examination,
as follows :
. Q. Will you relate to us, please, sir, the circumstances surrounding your
discharge?
A. Well, that morning I went in to go to work Mr. Shoemaker met me at
the door. He says, "You come into my office," says, "we gonna have to let
you go." I said, "What are you gonna let me go for, Mr. Shoemaker?"
He says, "For that damn CIO union." Well, I says, "What you gonna put
on my separation slip?" He says, "I'll put on there all right . . ."
I said, "You put on there what you fired me for, the CIO union," I said,
"that's what I want on there or else give me my card and I'll go back to
work." He said he couldn't put it on there and I said, "Well, you said that's
what you was firing me for and that's what I want on there or else I'm
going to go back to work. I'd like the public to know what I got fired for,"
and that's all that was said.
Q. Did he ever agree to put it on your separation slip?
A. He didn't say he would but I heard him tell the office girl to put it on
there. He never did tell me he would.
Q. Did he put it on the separation slip?
A. Yes, sir.
Q. Was anything else said in that conversation?
A. No, sir.
Q. During that conversation did he make any statement as to what would
happen to the other people who signed the CIO cards?
A. He said he'd fire every damn one that signed a CIO card, he said that.
Q. Was anything else said?
A. I said, .'I guess you know where you can get about 125 operators right
quick?" He never answered my question.
Q. Was there anything else said at that time?
A. That's all that was said.
Forelady Catherine Loving testified that she was the forelady of the section
in which Bucy had always worked ; that Bucy was a bundle boy until the latter
part of 1946 "when he got his raise which made him a foreman , paid him a fore-
man's salary and he was classified as a foreman " ; that she overheard a conversa-
tion between Holloway and Bucy sometime in September 1946. As to this con-
versation , she testified as follows :
SALANT & SALANT, INC. 837
Q. Now, what was the conversation that you overheard?
A. Well, it was one morning as I was coming in to work. I passed by
where they were talking. I heard Mr. Holloway tell him, said "Well, Homer
since you got your raise you are qualified as a foreman and you're not to have
any part in whats going on."
As to the duties performed by Bucy the last 2 or 3 months prior to his discharge,
Loving testified that he "checked in the work, checked the labels in, checked the
buttons and carried parts to the girls, such as keeping the bundles straight,
classing out the shirts, things like that" ; that her work as forelady in that
section was the same as work done by Bucy, plus "checking the work." With
reference to the duties performed by Bucy, Loving testified :
Q. Now, Mrs. Loving, did Homer Bucy at any time during the last two or
three months that he worked at the plant assign employees in Section 2 to a
.particular job without asking you about it?
A. Yes, sir.
Q. Tell us about that, please, Ma'am.
A. Well, like a machine broke down in the section, something like that, we
,had a section over in the corner what we call learners' part that he would
take them and put them on that machine and they' d proceed with their work.
Q. Did he ask you about doing that before he would do it?
A. No, sir.
Q. As I understand your testimony, when a machine would break down
in Section 2 he would take the employee off that machine and go assign him
to some other machine?
A. That's right.
Q. Is that the same thing you did when a machine broke down, was that
along about the same thing that you did, too?
A. Yes, I'd do that.
Q. Did he ever ask you about whether or not he should take an employee
and assign her to a particular place?
A. No, sir.
Q. He did that on his own?
A. That's right.
Q. Mrs. Loving, I will ask you if at any time during the last two or three
months that Homer Bucy worked at the plant that he had anybody to assist
him in the work that he ordinarily did as a bundle boy or section man?
A. Yes, sir, we had an extra girl that had been put on in the front and as
what we call a checker that picked up the extra shirts and things.
Q. Why was it necessary to have so much help of that kind in Section 2?
A. Well, one reason was on account of the duvteen shirts where they run
from one up to ten dozen in a bundle, different shades. We had to cut 450
dozen, something like that, maybe we'd run clear through the alphabet.
Some of them only had one shirt in it, it wasn't like a regular run of four
dozen and a half all the way through.
Q. As I understand your testimony it was necessary to have more of a
bundle boy, a section help or more of a supervision help in that section
because of the particular kind of shirts that you were working on?
A. That's right.
On cross-examination, Loving testified that during the last 2 or 3 months before
Bucy was discharged she corrected him for talking too much to the girls during
working hours , but did not correct him about anything else. On redirect exami-
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nation, she testified that after she had overheard the conversation between Hollo-
way and Bucy in September 1946, she received complaints from employees in her
section, to the effect that Bucy was refusing to do work that he had formerly done.
As to this, she testified :
Q. What was that?
A. That was where like when shirts were throwed out there were so many
of them piling up in the bin, in the girls' way of the machine, they would ask
him to remove them. He made the statement he didn't do that work any
more ; he wasn't getting paid for that kind of work.
Foreman Morris testified-that he succeeded Holloway as the head of the sewing
department, of which Bucy's section was a part, on October 1, 1946; that about 3
weeks later, Shoemaker informed him of Bucy's supervisory status; and that he
became aware of such status under the following circumstances :
In my own words I noticed that in this section that he looked like that he
was trying to take over the duties of this Loving woman that was the head
of the section and so I mentioned it to Mr. Shoemaker and he said , well, Mr.
Holloway. that's the man that was there previous to me, thought that Homer
warranted a raise and that they gave him that authority in order to be able
to give him this raise.
Morris further testified that Bucy had additional duties than did the other
bundle boys, in that Bucy "checked the work to see that the flow was right and
he saw that the parts came to the section to go to the section right and he did
practically the same thing that Mrs. Loving did."
Morris also testified, and the undersigned finds, that one (lay Stonewall Sin-
clair, a bundle boy, came to him and asked, to quote Morris, "What right Homer
Bucy had to jump on him. He said that he had been over (into another section).
and [Bucy] got on to him about not having the sleeves that he should and thati
the girls were having to wait" for them; and that he told Sinclair that "if he was
stopping the girls Homer Bucy was within his rights to jump on him" about it.
Shoemaker testified that sometime prior to July 29, 1946, Holloway requested a
raise for Bucy; that he was in favor of giving the increase, and told Holloway
that since Bucy was then being paid more than any of the bundle boys, and the
only way that Bucy could be given an increase was to reclassify him as a foreman.
and give him some additional duties to justify the change; and that he approved
the reclassification to foreman on July 29, 1946, told Holloway to advise Bucy of
the increase and his reclassification ; and that he forwarded the original reclassi-
fication notification to the Respondent's New York offices.
Shoemaker further testified that 2 or 3 days before he discharged Bucy, Morris:
complained to him "about Bucy being more active than usual in talking to [the]
girls, having conversation with bundle boys, and it looked suspicious" ; that he.
requested Morris to send Bucy to his office ; and that when Bucy came to his office,.
the following ensued :
Q. Now, who did the talking and who was directly concerned in this.
incident?
A. I did the talking. There was some question in ray mind as'to what his.
activities were on the top floor and in taking that up with himr, I reminded
him of the increase that he had gotten in July, and asked him if he re-
membered the conversation that he had with Holloway. I told him to prove
my point, what I was driving at, I would produce the advance slip and classi-
fication slip so that he would know what I was talking about. It was.
SALANT & SALANT, INC. 839
explained to him that he was working in the capacity of a foreman, and in
that capacity, he could not be active in any organizing of any kind. Miss
Minter went to the file and opened it up and I pointed the particular classi-
fication slip out to him.
Q. Now, you are referring, are you, Mr. Shoemaker, to Respondent's Ex-
hibit No. 3 which has been filed?
A. Yes.
Q. All right, sir.
A. And he looked at it, and I told him that in view of that fact, we wanted
to be sure that he should not carry on any organization work and if there
was any question, not to do any of it until we could definitely decide whether
he was a foreman or not, and he agreed.
Q. What did he say to you?
A. Yes.
Q. Did he raise any question with you then about his status?
A. No.
Shoemaker also testified that at the conclusion of his conversation with Bucy
he told Morris that he and Bucy had discussed the latter's status ; that he re-
quested Morris to advise him if Bucy was continuing to engage in excessive con-
versation with the operators and bundle boys and if so to report that fact to him;
that on the evening before he discharged Bucy, Morris informed him that Bucy
was continuing the complained-of action ; and that the next morning, November
20, he called Bucy into his office and there the following transpired :
A. I asked him if he had made up his mind about whether he was a fore-
man and could leave his activity alone. He stated that he did not consider
himself as a foreman, and of course, do as he pleased, so I told him under
those conditions, that I was not satisfied about his status and would have
to let him go.
Q. All right, sir. Did you tell him on that occasion you were going to
discharge him?
A. I did. I had to let him go because of the stand that he took on his
position.
Q. Now, I notice, Mr. Shoemaker, that the explanation given on this is,
and I am quoting "CIO organizer in the plant." Now, Mr. Shoemaker, when
you gave instructions to have his separation slip filled out what were the
instructions that you first gave, if you gave them any different from those?
A. Organizing in the plant. _
Q. Sir?
A. Organizing in the plant.
Q. Why was the word CIO organizing in the plant or CIO organizer in the
plant put on that separation slip?
A. Bucy insisted on it.
Q. What did you say to him about that?
A. All right, we'll put that on.
Q. Now, Mr. Shoemaker, up to that point when Bucy, as I understand you
to say, insisted that you put CIO on there, up to that point had CIO ever
been mentioned between you and Homer Bucy?
A. No.
Q. And he was the first one to mention CIO?
A. That is right.
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shoemaker further testified that he did not meet Bucy at the front door on the
date of Bucy's discharge ; that he did not tell Bucy that he was going to let Bucy
go because of the "damn CIO Union" ; that he did not state to Bucy "I am going
to fire every damn one of them that signed a- CIO card," that the Union had
nothing to do with the discharge of Bucy ; that he did not know who had signed
union cards ; and that no report had been made to. him as to who had signed union
cards.
Marian Minter testified that she was an office employee and was present in the
office when Shoemaker had a talk with Bucy 2 or 3 days prior to Bucy's discharge ;
that Shoemaker and Bucy were standing at her desk ; that Shoemaker called
'Bucy's attention to the fact that he had been reclassified, and was receiving a
foreman's salary ; that he reminded Bucy of Bucy's conversation with Holloway ;
that she got the record from the files showing the reclassification of Bucy from
section man' to foreman with a foreman's pay ; that Bucy looked at the record ;
that Shoemaker told Bucy that if he had been carrying on any union activities
among the employees to stop it until it could be definitely decided what his status
was ; and that Bucy agreed to abide by Shoemaker's request.
The undersigned was favorably impressed with the frankness with which Shoe-
maker, Parker, Loving, and Minter testified. Their demeanors, while on the
witness stand, clearly showed that they were honest and forthright witnesses.
Therefore, the undersigned finds their testimony to be credible; he also finds that
the events and circumstances about which each of them testified to be substan-
tially in accord with the true facts. Bucy, on the other hand, did not so impress
the undersigned. Bucy's lack of candor and his demeanor while on the witness
stand indicated that he was not a credible witness and the undersigned, therefore,
finds that his testimony should not be given any credence unless corroborated by
credible evidence.
Bucy's testimony, as summarized above, and his testimony which will be dis-
cussed immediately below, is so replete with self-contradictory statements and in
direct conflict with the credible testimony of other witnesses as to make it of little
or no value whatsoever. Furthermore, although, Bucy testified that certain
named supervisors made antiunion statements to him in the presence of non-
supervisory employees, whom Bucy named, none of these employees were called
as witnesses to corroborate his testimony. Moreover, the two persons, whom
Bucy named as being the ones with whom he had been talking when Parker al-
legedly saw him with union cards in his hand, likewise were not called to support
Bucy's testimony.
The undersigned finds that on and after July 29, 1946, Bucy was a supervisory
employee and that he was so advised of that fact by Holloway on that date.
The undersigned further finds that Bucy was discharged for the sole reason
that he persisted in soliciting members for the Union during working hours de-
spite Shoemaker's admonition to him not to do so. Shoemaker's- request that.
Bucy refrain from engaging in such activities until Bucy's "status" could be
determined was not unreasonable, under the circumstances of this case. No
other supervisor encroached upon the Respondent's neutrality with respect to the
employees' union activities and, therefore, Shoemaker had every right to see that
that neutrality was not vitiated by Bucy.
What Shoemaker had in mind, the record discloses, when be referred to Bucy's
"status,' was whether, as a foreman. Bucy could legally be a member and active
in behalf of a labor organization composed of rank-and-file employees.
7 Also referred to in the record as bundle boy.
SALANT & SALANT, INC. 841
Irrespective of whether or not Bucy was a foreman, the mere fact that Shoe-
maker asked Bucy to desist from engaging in union activities during working
hours and Bucy's refusal to do so, justified the Respondent in discharging Bucy.
As the Board said on many occasions, "work time is for work," and,,therefore,
absent any antiunion motive, an employer's request that employees not engage in
union activity during working hours is not unreasonable and not violative of the
Act.
Upon the entire record in this.case, the undersigned finds that Bucy was dis-
charged for good and sufficient cause. Accordingly, the undersigned recommends
that the complaint, as amended, be dismissed as to Homer Bucy..
Bucy testified that he had conversations with Foreladies Dodson and Mohon
about the Union. With respect to these conversations, Bucy testified as follows:
Q. How often did Maidie Dodson talk to you about the CIO?
A. Every day for a week or ten days, every morning I'll say, when I came
into work, after I had been working a while.
Q. About when was that?
A. Around eight, 8: 30.
Q. I mean, what part of the year 1946?
A. That was in November, November 1946.
Q. About how long would you say before you were discharged?
A. Oh, about ten days, fifteen days, something like that, the first part of
November.
Q. You say she had talked to you almost every morning?
A. Yes.
Q. When she came in to work?
A. Yes, sir, after we went to work you know, be working a while, she'd
come around to where I was working.
Q. All right. What would she say to you?
A. She'd say, "How's the CIO union going today? Have you got any new
members? Is it increasing any?"
Q. What would you answer?
A. I'd say yes ; didn't want to tell her it wasn't.
Q. Do you recall of any time that anybody else might have been present
when any of those things were asked?
A. Yes, I can.
Q. All right, who would be present?
A. Velma Mohon was present one time, Tom Mohon was present at the
same time, Bud Clark was present at the same time.
Q. At that time that you say that Velma Mohon, Tom Mohon, and Bud
Clark were present when Maidie Dodson talked to you, can you tell us
about when that might have been?
A. Well, I couldn't tell you the day, the week either, but I can tell you it
was in November, I know that.
Q. Can you tell us about how long before you were discharged?
A. Well, it was a week or ten days.
Q. Week or ten days?
A. Yes.
Q. You say that these conversations occurred almost every day for a
period of a week or so?
A. For several days, yes, sir.
Trial Examiner MYERS. What is this several days?
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The WITNESS. A week, ten days.
(By Mr. HESS) :
Q. What about conversation or conversations with Velma Mohon, when
did that or those take place?
A. Well, it would be along the same day, maybe it would be a different
time during the day, at the same time of the-while this was going on.
Q. Did she talk to you more than once?
A. Yes, she talked to me more than once.
Q. About the CIO?
A. CIO. -
Q. During the same period that Maidie Dodson was talking to you?
A. Yes, during the day, the same day.
Q. I mean the same period of the year?
A. Yes, sir, same time of the month, it was a week or ten days before I
was discharged.
Q. What would she say to you?
A. She'd ask about the same question, how the CIO was going today, "You
got any new members? Do you think you'll get enough to hold election?"
Q. What would your answer be to that?
A. I'd say we may get enough, we might.
Q. Did these conversations with Velma Mohon and Maidie Dodson take
place in the factory?
A. Yes, Sir.
Q. And during working hours?
A. Yes, sir.
Dodson and Mohon denied making the statements attributed to each of them.
As found above, Bucy was not a credible witness ; Dodson and Mohon were.
Under the circumstances, the undersigned credits the denials of Dodson and
Mohon and finds that they did not make the statements attributed to each of them
by Bucy.
Bucy also testified that in the latter part of October 1946, he attended an AFL
meeting which was held for the purpose of electing officers, and that before he
attended the meeting, he had a conversation with Shoemaker, in which the latter
asked him if he were going to the meeting and said to him, "You know how
to vote I guess." Shoemaker denied having a conversation. The undersigned
credits Shoemaker's denial and finds the conversation never took place. The
election of officers referred to by Bucy took place in September 1946, prior to the
first collective bargaining conference of October 4, and not at the time stated
by Bucy.
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 Paris, 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.
SALANT & SALANT, INC. 843
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, 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 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. 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 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 Board 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 19th day of August 1949.
HOWARD MYERS,
Trial Examiner.