Salant & Salant, Inc.

National Labor Relations Board - Board Decisions

Nov 30, 1950

92 N.L.R.B. 343 (N.L.R.B. 1950)

In the Matter of SALANT & SALANT, INCORPORATED and AMALGAMATED
CLOTHING WORKERS OF AMERICA, CIO
Case No. 15-C-1 ??f7.Decided November 30, 1950
DECISION AND ORDER
STATEMENT OF THE CASE
Upon a charge filed September 25, 1946, an amended charge filed
January 31, 1947, and a second amended charge filed May 10, 1948, by
the Amalgamated Clothing Workers of America, affiliated with the
Congress of Industrial Organizations and herein called the C. I. 0.,
the General Counsel of the National Labor Relations Board, by the
Regional Director for the Fifteenth Region (New Orleans, Louisiana),
issued his complaint dated May 13, 1948, against Salant & Salant,
Incorporated, herein called the Respondent, alleging that the Re-
spondent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (1)., (2), and (3)
and 8 (a) (1); (2), and (3)1 of the National Labor Relations Act
(61 Stat. 136), herein called the Act, at its Lexington, Tennessee,
plant. Copies of the. original and amended charges were duly served
upon the Respondent on July 4, 1947, and of the second amended
charge on May 17, 1948. Copies of the complaint and notice of hear-
ing thereon were dilly served upon the Respondent and the C. I. 0.,
and also upon the United Garment Workers, affiliated with the Amer-
ican Federation of Labor and herein called the A. F. L., whose motion
to intervene was granted.
With respect to the unfair labor practices, the complaint alleged,
in substance, that the Respondent (1) discharged and thereafter
failed and refused to reinstate Annie A. Bell, Irene Derryberry, Exie
Dyer, James Garvey, Betty Lou Grissom, Theoda Gurley, and Bertha
Lewis, because of their union and concerted activities; 2 (2) by its
officers and certain agents and supervisory employees interrogated its
1 For purposes material in this proceeding (except with respect to the allegations
concerning Supervisor Garvey), Section 8 (a) (1), (2), and (3) of the amended Act
continue without change the provisions of Section 8 (1), (2), and (3).
2 Similar allegations with respect to four others named in the complaint were dismissed
without objection at the hearing, no evidence being offered with respect to them.
92 NLRB No. 69.
343
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees concerning their union affiliation, warned them against
C. I. 0. activity or membership by threats, including threats that
the plant would close, threatened them with discharge if they engaged
in concerted activities, promised them rewards if they would not
support the C.'I. 0., and engaged in surveillance of C. I..0. activities
and the concerted activities of its employees; (3) by threats of its
officers, agents, and supervisory employees urged upon its employees
membership in the A. F. L.; (4) initiated and sponsored the A. F. L.,
and assisted, dominated, and contributed support to the A. F. L.
Thereafter the Respondent filed a motion to dismiss the complaint,
and an answer denying the commission of the unfair labor practices
alleged.
Pursuant to notice a hearing was held in Lexington, Tennessee, on
June 28 through July 2, 1948, and on July 6, 1948, before Howard
Myers, the Trial Examiner duly designated by the Chief Trial
Examiner. The General Counsel, the Respondent, and the C. I. 0.
were represented by counsel and participated in the hearing. The
A, F. L. had.a representative at the hearing. All parties were afforded
full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence pertinent to the issues.
The A. F. L.' filed a motion to dismiss the complaint which the
Trial Examiner denied. The A. F. L. also filed a motion to strike
that portion of the complaint which alleged violations of Section
8 (a) (2) of the Act, on the ground that it was based on the May 10,
1948, charge alone, which, in disregard of Section 10 (b) of the Act,
encompassed unfair labor practices occurring more than 6 months
before. Respondent's motion to dismiss the entire complaint was
based on the same contention. The Trial. Examiner denied the
A. F. L.'s motion to strike and the Respondent's motion to dismiss.3
The A. F. L. was granted an oral bill of particulars in response to
a motion to make the complaint more definite and certain.
On August 10, 1949, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the Respondent, the
.C. I. 0., and the A. F. L., recommending that the complaint be dis-
missed in its entirety. Thereafter the C. I. 0. filed exceptions and
a memorandum in support thereof. The Board has carefully re-
viewed the entire record and finds that the exceptions have merit.
Because of the extent of our disagreement with the findings, con-
3 We agree with the Trial Examiner's rulings on these motions , as we find that the
amended charge filed January 31; 1947, and served upon the Respondent July 4, 1947, is
a sufficient basis for the complaint herein , and that no averments material to our findings
in this proceeding were added by the- second amended charge of May 10, 1948. See
Cathey Lumber Co., 86 NLRB 157; Kansas Milling Co. V. N. L. R. B. 185 F. 2d 413
(C. A. 10) November 9, 1950.
SALANT & SALANT, INCORPORATED 345,
elusion, and recommended order of the Trial Examiner, we. make our-
own findings; conclusions, and order, as follows -,
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Salant & Salant, Incorporated, the Respondent, is a New York
corporation, with its principal offices in New York, New York, au-
thorized to do business in the State of Tennessee and having, among-
other Tennessee plants, the one at Lexington which is involved in this.
proceeding. At. its Lexington plant it manufactures work shirts,
principally made of cotton flannel. During 1946, raw materials.
purchased largely outside of Tennessee for' processing at the Lexing-
ton plant exceeded $100,000 in value, and the shirts shipped from:
said plant to Respondent's customers, most of whom are outside the-
State of Tennessee, exceeded $200,000 in value.
We find that the Respondent is engaged in commerce within the-
meaning of the Act at. its Lexington, Tennessee, plant.
H. THE LABOR ORGANIZATIONS INVOLVED
The Amalgamated Clothing Workers of America, affiliated with
the C. I. 0., and the United Garment Workers of America, affiliated
with the A. F. L., are labor organizations admitting to membership
employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The Respondent 's labor background ; the sequence of events in,
this and related cases
The Respondent operates eight shirt factories in eight small towns-
in Tennessee.4 In 1943, the C. I. O. first attempted to organize and
bargain for the Respondent's employees in these various -factories..
At that time the Respondent, under the active personal leadership of
its president, A. B. Salant, frustrated its. employees' organizational
efforts by a campaign of wilful unfair labor practices which are
described in detail in a Decision and Order of the Board issued in.
February 1946 in Case No. 10-C-1354 .5 As the Board there found, the,.
Respondent unlawfully discriminated against C. I. O. adherents in,
'These plants are located in Lexington , Lawrenceburg , Henderson , Parsons, Paris,.
Union City , Obion , and Troy. The Troy plant appears to have been in operation only
since 1947. See Salant fi Salant, Inc., 74 NLRB 1325, 1327.
5 Salant . & Salant, Inc,, 66 NLRB 24. The Board 's Decision in that case is cited in the.
present case.
929979-51-vol. 92-24
X46 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.several instances, and unlawfully refused to bargain with the C. I. O.
at the Martin plant, the only one where the C. I. O. succeeded in
,establishing a majority during the 1943-44 campaign; it also broad-i .1
•cast to its employees and to interested townspeople that its policy was
to shut down, sell out, or cut back production at any plant where the
C. I. O. should gain a foothold. The Respondent reinforced this
threat by effecting an ostensible sale of the Martin plant. In the
:same .case the- Board, found the Despondent guilty of sundry other
unlawful acts of interference, restraint, and coercion, including sur-
veillance of employees' union activities, manipulation of wage in-
creases to discourage union activity, physical assaults upon C. I. O.
-organizers and adherents, and instigation of community pressure
.against the C. I. O. The United States Court of Appeals for the
.Sixth Circuit enforced the Board's Order in June 1950.6
It was in February 1946 that the Board's Order in the foregoing
case was issued. The C. I. O. promptly launched a new attempt to
organize the employees of the Respondent, commencing a campaign
at the Union City plant in March 1946. The A. F. L. instituted a com-
petitive campaign and both unions participated in an election con-
ducted by the Board on July 19.. The C. I. O. won this election and
was certified by the Board on August 5. A week later the Respondent
refused to bargain with the C. I. O., raising objections to the Board's
previous determination as to the appropriate bargaining unit. An
unfair labor practice case was instituted and, in 1947, the Board found
that this refusal to bargain with the C. I. O. at Union City was viola-
tive of Section 8 (5) of the Act (Case No. 15-C-1222). In December
1948 the United States Court of Appeals for the Sixth Circuit en-
forced the Board's order in that case. (See footnote 17.) Meanwhile,
other charges had been filed by the C. I. O. alleging that the Respond-
ent committed various other unfair labor practices at the Union City
plant in 1946. A complaint issued in that case, No. 15M-C-4, is now
pending before us after hearing.
At the Lexington plant, the one involved in this proceeding, the
C. I. O. started to organize in July 1946, shortly after winning the
election at Union City. Here, too, the A. F. L. waged a rival campaign.
A Board election was conducted in September. The C. I. O. polled a
majority and was certified in November. -Several bargaining con-
ferences between the Respondent and the C. 1. 0. were held thereafter,
but no contract was ever achieved.' The complaint in the present case
ON. L. if. B. v. &'alant & Salant, Inc. at at., 183 F. 2d 462.
' There is no 8 (a) (5) issue in this case, however. The Board's records show that in
November 1947, the C. 1. O. filed a charge alleging that the Respondent unlawfully refused
to bargain with it at the Lexington plant on or about October 10, 1947. In February 1948
this charge was dismissed by the General Counsel without investigation.
SALANT & SALANT, INCORPORATED 347
alleges that during the summer and fall of 1946, both before and after
the Lexington plant election,. the Respondent engaged in various un-
fair labor practices tending, to assist the A. F. L. and to discourage
activity in behalf of the C. 1. 0.
In two other cases, recently decided, we disposed of other charges
filed by the C. I. O. relating to alleged unlawful activities of the
Respondent, in 1946 at its Parsons and Paris plants. At these two
plants the C. I. O. made some attempt to organize, following its suc-
cesses at Union City and Lexington, but the-A.- F. L. enlisted a majority
of the employees in each instance. In September, at Paris, and in
October, at Parsons, the Respondent recognized the A. F. L. as bar-
gaining representative on the basis of card checks, and, in December
1946, awarded the A. F. L. union-shop contracts covering these plants.
We found, in our two recent Decisions,8 that the Respondent unlaw-
fully assisted the A. F. L. by renewing these contracts in 1947 after
the amendments to the Act became effective (as the union-security
provisions of the contracts were unauthorized under Section 8 (a)
(3) of the Act), but we dismissed the General Counsel's allegations
made in the same cases that the Respondent had unlawfully assisted
the A. F. L. and committed other unfair labor practices at the Parsons
and Paris plants in 1946.
The facts found by the Board and the Court in the first case in-
volving this Company show beyond any question that in 1943 and
1944 hostility toward the C. I. O. was the core of the Respondent's
labor relations policy. And, apart from the direct evidence of un-
fair labor practices detailed below, there is background evidence in
the present case showing that this policy was still in force in 1946,
at the time of the events with which we are here concerned. Robert
Salant, the Respondent's treasurer, acknowledged at the hearing
that at some unspecified time not connected with "the 1944 case," and,
presumably, after 1944, the Respondent had prepared and circulated
to its supervisors in all the plants a -memorandum reviewing its re-
lationship with the C. I. O. in which it declared that it had been
"harrassed" by the C. I. O. At the Lexington plant in 1946, at the
beginning of the union organizational campaigns, Plant Superin-
tendent Bagwell, who had been superintendent of this same plant in
1943, told an employee that "the AFL was easier on the Company
than the CIO was."
B. Interference , restraint , and coercion
The C. 1. 0. began organizing among the Lexington plant employees
in the latter part of July 1946. Employees Ernest and Ollie Scates
8 Salant & Salant, Inc., 87 NLRB 215 ; Salant & Salant, Inc., 88 NLRB 816.
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Adeline White prepared a mailing list for the C. I. 0., and letters.
of solicitation containing application: cards were sent to employees.
A. F. L. representatives arrived in Lexington the next day after this
C. I. 0. material was received through the-mail. Apparently, this
was August 1. On August 2 a C. I. 0. organizer came to Lexington
and that evening held a meeting in the city hall for the employees-
Head Mechanic Odle, a supervisor, attended this meeting. On August
3 both Ollie and Ernest Scates joined the C. I. 0.: and wore their
union buttons to work thereafter. Both unions were then actively
soliciting members.
The campaign was scarcely under way when supervisors began
telling employees that the Respondent would not deal with, the C. I. 0..
Employee Esther Mai Horn testified that early in August, Supervisor
Ra.melle Melton spoke to her and said the "AFL would be the one"
and -"Salant 9 would not deal with the CIO." Willodan Maness
testified that Melton called her from her machine during the first
week in August to tell her "the Company would not deal with they
CIO" inquiring whether she would "rather have a union that the-
Company would deal with than have one they wouldn't?" Two other
employees testified that Supervisor Daisy Garner made similar state-
ments : Lorene Hamlett, that Garner, about the 1st of August,
discussed unions with a group of employees during rest periods and
told them she thought Salant would not cooperate with the C. I. 0.,
or that "he had said he would not," and Helen Burton that, "when
the Union began" she asked Garner about unions and Garner said
she didn't think "they" needed a union at. all, but if they did want
one, she though it would be best to vote for the A. F. L. because "the
Company would not cooperate with the C. I. 0." Melton and Garner
denied the portions of the above statements indicating that the Re-
spondent would not deal with the C. I. 0. We credit Horn, Maness,
Hamlett, and Burton io
9 Presumably A. B. Salant , the Respondent 's president.
10 The Trial Examiner inferentially credited Foreladies Melton and Garner and dis-
credited the four witnesses for the General Counsel ; stating :
The supervisors who testified in this proceeding impressed the undersigned as
being forthright and honest witnesses. On the other hand , many, if not all, of the
witnesses who testified to certain allegedly coercive statements and allegedly illegals
actions of the supervisors gave confusing and self -contradictory testimony , which, by'
necessity , makes it difficult to rely upon such testimony.
However , the Trial Examiner's refusal to find that Melton's and Garner's above-
described statements were violative of the Act appears to rest, in part , upon certain legak
conclusions which assume that the foreladies did, in fact, make the statements in ques-
tion. Thus , the Trial Examiner held that these statements , among others , were mere
opinion, were not coercive of employees in the exercise of rights guaranteed them by the
Act, and /or that the Respondent was not accountable for said statements . We find these
legal conclusions clearly erroneous for reasons stated in our Conclusions below. More-
over, we do not find the testimony of Horn, Maness , Hamlett , or Burton to be.
SALANT & SALANT, INCORPORATED 349
On' August 6, the C. I. 0. wrote to the Respondent requesting ' rec-
ognitioir as bargaining representative, and on August 12, "filed its
representation petition, alleging that recognition had been refused.
Pursuant to the Board's rules, a prehearing election was conducted on
September 1.7. All through the preelection period, C. I. 0. meetings
were held once a week at the city hall, with additional meetings at em-
ployees' homes. The C. I. 0. won the election on September 17, and
on November 12 it was certified by the Board as the exclusive
collective bargaining representative of the Lexington employees.1'
On Friday evening, August 9, 1946, James Gilley, an executive of
the Respondent, charged with liaison in labor relations matters, came
to the shop and spoke with Ollie Scates and his cousin Ernest Scates,
requesting that they go with him the next day to Jackson, Tennessee,
about 27 miles away. He explained that A. B. Salant, the Respond-
ent's president, was staying at a hotel there and wished to talk with
them.' The next day, Gilley took the Scateses to Jackson in his car and
conducted them to Salant's hotel room. Salant, Gilley, Ollie and
Ernest Scates were the only persons present during the conversation.
Salant asked the Scateses what was "wrong" at the Lexington plant,
whether "it" was working conditions, wages, or management. He
spoke of "how nice" he had tried to be, and of the wage increases he
had given in the past, and compared the two unions, saying an em-
ployer could sign a contract with one and have things go along peace-
fully but the other always tried td keep a "sharp edge" between
employees and management. "This union," Salant said, plainly re-
ferring to the C. I. 0., "had blocked a wage increase he tried to give
at the Lawrenceburg plant in 1943." 12 Salant told the Scates cousins
"confusing and self -contradictory ." On the contrary , not only do we find the testi-
mony of these witnesses lucid , and mutually corroborative as to the tenor of Melton's
and Garner ' s remarks at this stage in the organizational campaign , but also, we find that
all the circumstances revealed by this record as a whole preponderate in favor of our con-
clusion that these four employees testified truthfully in this instance . See the general
discussion of the credibility issues in this case in our Conclusions below. As to Melton
and Garner as well as the four other supervisors who testified as witnesses for the
Respondent , our analysis of the entire record discloses objective reasons for doubting
that these witnesses were altogether "honest." See footnote 43, below.
ii The unit consisted of production and maintenance employees , with supervisory and
clerical workers excluded . Of the 208 eligible voters , 203 cast votes : 107 for the C. I. 0.,
89 for the A. F. L., and 7 for no union. Salant and Salant , Inc., 71 NLRB 661.
"The C. I . 0. was the only union which attempted to organize Respondent ' s employees in
1943. According to the Board 's findings in the case reported at 66 NLRB 24, 80 , enforced
by the United States Court of Appeals for the Sixth Circuit (see footnote 6), the incident at
the Lawrenceburg plant, to which Salant referred , was as follows : At the first sign 'of
union activity in 1943 the Respondent applied to the National War Labor Board for
permission to increase wages at all its plants . Later, having itself caused delay by repeat-
edly failing to comply with the War Labor Board 's requests for supporting data, the
Respondent willfully misrepresented to its employees that the C. I. 0. was responsible for
the War Labor Board's delay in acting on this application . Finally, the Respondent put
this increase into effect at the Lawrenceburg plant prematurely, without the approval of
the War Labor Board, distributing to the employees at that plant back-pay checks covering"
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not to "just study today" but to "study the future" and their "job in
the future." Asked by Ernest Scates whether the rumor was true that
he would not deal with the C. I. 0., Salant answered : "In some cases
and places I will. In some cases and places I won't." ,
The Trial Examiner treated Salant's remarks to the Scateses as.
mere opinion, apparently impressed by Ollie `States' "admission"
(which took the form of bare affirmative answers to questions pro-
pounded by Respondent's counsel on cross-examination) that he took
Salant's remarks to be only an expression of views, and understood
that he and his cousin were free to "do as they pleased." 13 We are
unable to agree. Salant did not confine himself to mere expressions of
hostility toward the union in which these two employees were active.
He interrogated them as to the reasons for their interest in union
organization and, by clear implication warned them that their "fu-
ture" jobs as well as wage improvements at the Lexington plant might
be jeopardized by support of the C. 1. 0. He also conspicuously failed
to scotch the rumor, already being spread by supervisors at the Lexing-
ton plant, that he would never deal with the. C. I. O.-regardless of
his employees' desires, and implied that it was doubtful if he would
deal with the C. I. O. at Lexington. Ollie Scates' "admissions" do not
serve to negate the coercive tendency of those remarks .14
Two days later, on Monday, August 12, Salant addressed the
employees at the Lexington plant. Work was stopped so that all
employees might listen. The *purport of Salant's speech was much
the same as his remarks to Ollie and Ernest Scates in his hotel room
at Jackson, including the "study the future" theme 15 All witnesses
who testified regarding the speech"' agreed that Salant referred to
the previous wage raises the Respondent had given, and said that
the Respondent was going to give a raise as of August 26 to the
employees of all its plants "but one." Salant stated that he was then
the retroactive period of the increase , immediately after this Board had directed an election
among Lawrenceburg employees on the C. I. O.'s petition . This move, the Board found,
was plainly designed to defeat the C. I. O.'s election campaign, and was an act of interfer-
ence, violative of Section 8 (1) of the Act. In the circumstances, Salant's reiteration to
employees in 1946 that the C. I. O. had "blocked" the Lawrenceburg wage increase, was it
revival of an old misrepresentation.
13 The Trial Examiner overlooked Ernest Scates' testimony that although Salant did not
tell him he "had to go one way or the other, on the union . . . that was my opinion of
why he had me down there , for he hadn 't been calling me to Jackson on business."
14 Conclusionary testimony by employees as to their subjective state of mind is of little
weight in determining the coercive character of an employer's, actions . Donnelly Garment
Company, 50 NLRB 241, remanded by the Supreme Court, 330 U. S. 219, to the Court of
Appeals for the Eighth Circuit and there enforced , 165 F. 2d 940 ; The Pure Oil Company,
73 NLRB 1, 3, and cases there cited.
1 Despite white's testimony that Salant told the employees they might vote for any
union they . wanted , we reject the Respondent 's contention , and the Trial Examiner's
finding, that this speech contained a "clear" declaration of neutrality , much less a
statement of neutrality which could have carried any conviction in the circumstances.
16 The Respondent did not make the test of the speech available.
SALANT & SALANT, INCORPORATED 351
attempting to get approval for this raise from the Wage Stabilization
Board, but "if they didn't approve it by August 26, he would put it.
into effect anyway." The plant to be excepted from this-wage increase
was Union City, where the C. I. O. had just been certified by the
Board.17 The Union City exception was again impressed upon the
Lexington employees by a printed notice dated September 3, announc-
ing a general wage increase at all of the Respondent's plants "with.
one exception." 18 Apparently this notice was distributed to Lex-
ington employees with the first paychecks reflecting the August 26•
increase.
The Respondent contends that the wage increase was given in ful-
fillment of a promise made to the employees a year before, and that.
it was not intended to affect organizational activities at the Lexington
plant. Robert Salant testified that Respondent's officers decided upon
the 1946 increase in June and applied to the Wage Stabilization Board
for approval on August 8, before receipt in New York of the C. I. O.'s
August 6 letter claiming that it represented a majority of the
Lexington employees. However, there can be.no question that the
Respondent was in receipt of the C. I. O.'s claim of majority repre-
sentation when Salant made his August 12 announcement of the.
increase 19 Whatever reasons the Respondent may have had for apply-
ing to the Wage Stabilization Board on August 8, the timing and
context of Salant's speech on August 12 make it clear that this
announcement to the Lexington plant employees was not fortuitous.
It could only have been for the purpose of counteracting the C. I. O.'s
organizational efforts that Salant chose this occasion to promise the
Lexington employees that they and others (but not the employees at
Union City, who were represented by the C. I. 0.) would receive an
increase in 2 weeks regardless of the Wage Stabilization Board's
action.20 In view of this promise and the admitted similarity between
"The Board's certification of the C. I. O. at the Union City plant was dated August 5,
1946. See Salant & Salant, Inc., 74 NLRB 1405, enforced by the Court of Appeals for the
Sixth Circuit without opinion, 171 F . 2d 292.
18 Respondent does not say-and, indeed it could not be heard to say (for it refused
to bargain with the C. I. 0. at Union City immediately after the certification )-that it
withheld the increase at Union City because it recognized its obligation to bargain with
the C. I. 0. as to wage increases and related matters at that plant . Clearly it did not
explain the Union City "exception" to the Lexington plant employees on any such ground.
18 In its brief to the Trial Examiner , the Respondent argues only that the initial decision
of its officers to give the raise occurred before organizational activity.
""The offering of wage increases by an employer to his employees at a time when a
union is engaged in organizing activity is held to be a violation of Section 8 (1) of the
Act prohibiting interference with the right of self -organization and collective bargaining."
N. L. R. B. V. Bailey, 180 F. 2d 278 (C. A. 6), citing F. W. Woolworth Co. v. N. L. R. B.,
121 F. 2d 658 (C. A. 2), and M. H. Ritawoller Co. v: N. L. R. B., 114 F. 2d 432, 435 (C. A.
7). The court in the Bailey case al'so' found' that 'a promise of economic tenefits is not
protected by Section 8 (c) of the Act as amended. See also : Hudson Hosiery Company,
72 NLRB 1434, 1436 ; A. J. Showalter Co., 64 NLRB 573; Wire Rope Corporation of
America, Inc., 62 NLRB 380.
:352 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD
Salant's speech on the 12th and his interview with the Scateses 2 days
before, we reject the Trial Examiner's inferential conclusion that the
August 12 speech constituted merely an expression of opinion.
On the same day that he made his speech at the Lexington plant,
Salant, in a letter, formally advised the C. I. O. of his decision to
-refuse to bargain with it at Union City 21 Immediately, Gilley and
-several of the Lexington supervisors, Odle, Armstrong, and Garner,
'capitalized upon this development to impress upon employees at the
Lexington plant that it would be futile for them to designate the
'C. 1. 0. as their bargaining agent.
Ernest Scates and Adeline White testified to the following episode
.involving Gilley : Ernest Scates said that Gilley told him on August
13 that he had just received a telegram from Salant in which Salant
.stated that he was advised by his lawyer that he did not have to bargain
-with the recently certified C. 1. 0. at Union City, and that he would not
-bargain with that union at Lexington either. In the same conversa=
tion, according to Scates, Gilley pointed out to him that even then there
-were trucks at the plant loading materials to go to the Respondent's
Paris plant. According to White, Gilley said a telegram to this effect
-was received from Salant's lawyer, and Gilley urged her to repeat the
-message to others, hinting that the A. F. L. might be acceptable to Re-
spondent instead of the C. I. O. Gilley did not testify22 We credit
the undenied testimony of Ernest Scates and White.23 .
Ernest Scates also testified that it was Odle, his supervisor, who first
-told him on August 13 about Gilley receiving the alleged telegram.
.Similarly, Ollie Scates testified that Odle remarked to him, about a
month later, that "Mr. Salant ... had called Mr. Gilley and had him
-to put out the report in the plant that he would not deal with the C. 1. 0.
.at Union City or at Lexington or at any place else . . . that the C. I. O.
-won the election in the Martin plant some time ago ... 3 or 4 years
See Salant & Salant, Inc ., 74 NLRB 1405 at 1408.
22 The Trial Examiner made no comment on the Respondent 's failure to call principal
witnesses such as Gilley, or for that matter, A. B. Salant , or Bagwell , or several super-
visors, even though in making his credibility findings he commented adversely on the
-General Counsel 's failure to call corroborating witnesses.
23 The Trial Examiner, in the Intermediate Report, gave "no credence" to Ernest Scates'
testimony as to this episode, but also held-erroneously , in our opinion-that even if
. :Scates be credited , the Respondent was not accountable for Gilley's statement . Gilley
was plainly an agent of the Respondent. The Trial Examiner did not refer to White's
-testimony , nor to the Respondent ' s unexplained failure to call another individual, one
Dawes , who, saying he had come from Gilley , originally reported the telegram to White
and asked her "to tell all of them who worked around." Respondent urged in its brief
to the Trial Examiner that White's testimony was too confused to be relied upon, and
,the Trial Examiner , as noted in footnote 10 above, remarked in the Intermediate Report
that "many , if not all ," of the General Counsel ' s employee witnesses gave "confusing
and self-contradictory testimony ." We find nothing confusing in White's substantially
detailed and unshaken testimony as to this incident . For these reasons and others more
fully set forth in our conclusions below, we find that the Trial Examiner ' s refusal to
credit Scates and White in this instance was clearly unreasonable.
SALANT & SALANT, INCORPORATED 353,
piist, or something like that, . . . that Salant sold the [Martin] plant.
before he would operate" with the union, and that because of this mes-
sage from Salant to Gilley, Odle believed that the Lexington plant.
would be closed if the C. 1. 0. won. Odle was not asked whether he re-
ported the telegram to Ernest Scates ; he denied that he told Ollie the-
plant would close or move but he was not asked about other portions of
his conversation with Ollie. . We credit Ernest and Ollie Scates.24
Lila Scates, too, testified about the reported telegram. According-
to her version, her supervisor, Armstrong, told her on August 13 that
Gilley had just received a "wire" that Salant would not deal with the-
C. I. 0., adding (like Gilley in his conversation with Ernest Scates)
that trucks were even then at the plant removing material to the Paris-
plant; when she said "they tried that at Union City" he replied that he-
"guessed it would make a believer out of" her when employees at Lex-
ington began to be laid off. Alta Dwyer also testified that Armstrong,
who was her foreman, came to her just before quitting time on August
13 and asked if she knew "that they had received a telegram from..
Salant saying he would not bargain with the C. I. O. and that there-
would be 2 trucks there to haul off the cloth to Paris." Armstrong-
denied this conversation with Dwyer, and denied telling Lila Scates-.
that material was being shipped out to the Paris plant. We credit
Dwyer and Lila Scates.25 Finally, Lorene Hamlett, an employee,.
testified that her supervisor, Garner, said to a group of employees,
"shortly before" the September 17 election, that a telegram had been.
received from Salant stating that there would be no work at the Lex-
ington plant, and material was being transferred to the Paris plant..
Garner added, according to Hamlett's testilnony,'that she was "sorry
... people would just have to learn to do what they were told what's.
best." Garner denied having said this. We believe Hamlett.26
24 The Trial Examiner specifically discredited Ernest Scates' testimony as to his conver-
sation with Odle, apparently overlooking both the fact' that Odle failed to contradict
Ernest Scates and the fact that Ollie Scates, without direct contradiction, imputed to-
Odle an obvious reference to this same alleged telegram.
w The Trial Examiner, in part, misunderstood Lila Scates' testimony, apparently con--
fused by a patent typographical error in the transcript as to Gilley's name. He infer-
entially discussed Dwyer's testimony in his broad finding that "no supervisor" in fact-
said (or, presumably, implied) that the Lexington plant would be closed if the C. I. O.,
should win the election. We are constrained to reject the Trial Examiner's judgment as'
to these credibility issues. See our conclusions below.
16 We reject the Trial Examiner's finding that "no supervisor" ever told any employee-
that a telegram had been received at the plant from Salant stating that Salant was remov-
ing merchandise or machinery in order to defeat the organization of employees. The pur-
port of the alleged telegram, according to most of the witnesses on this point, was that
Salant would not deal with the C. I. 0., either at Union City or Lexington. The telegram
report was a month old by the time of Garner's remarks, quoted by Hamlett. It is alto-
gether. likely that by this time Garner herself had confused the rumor about the telegram.
with the associated-rumor about removal- of materials.
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record does not show how much truth there was in the story
of a telegram from Salant on August 13, or in the accompanying
hints that particular, shipments of materials were being made in
preparation for cutbacks or a shutdown of the plant in case the C. 1. 0.
should be selected as the Lexington bargaining agent. It is clear,
however, that these stories had sufficient factual basis to be believable
from the employees' point of view 27 We find that representatives
of the Respondent spread these reports to discourage employees from
selecting the C. I. O. as their bargaining agent, and that the reports,
truthful or not, tended to have precisely that effect.28 .
Throughout the preelection period these attempts to discourage
C. I. O. supporters continued. Exie Dyer testified that foreman
Armstrong asked her, about the middle of August, whether she had
filled out a card and observed that he meant a "white one" (A. F. Ti)
when she said she had signed a "blue one" (C. I. 0.). About
August 23 Armstrong, according to Alta Dwyer's testimony, discussed
the wage raise the employees were going to receive and asked what
the C. I. .0. had promised them. Willodan Maness testified that some-
time after the: first week in August she asked Head Mechanic Odle
what union was best, and Odle replied that he wasn't "allowed" to
say, but asked "had [the witness] rather not have any union at all
than to have one that the company wouldn't deal with . . . ?" About
September 1, according to employee Horn, Odle asked her which way
she was going to vote, and told her she had better "study it over very
careful" and said Salant would not deal with.the C. I. O. Carmack
Jowers testified that just before the election Odle came to the table
where he was cutting and said "that me and him had worked together
on different jobs and we-both had families to support, and I'd better
take into consideration before I voted in the election that he [Odle]
didn't believe that the company would deal with the C. I. 0., and
we wanted a job in the future." Armstrong denied asking Exie Dyer
what color card she had signed, but he was not asked about the con-
versation with Alta Dwyer. We credit Dyer and Dwyer. As to
his conversations with Maness and Jowers, Odle denied only that he
had told any employees that Salant would not deal with the C. I.. 0.;
27 We have already adverted to the established fact that Salant announced his refusal to
bargain with the C . I. O. at Union City just a day before the alleged telegram was rc 7eived.
The record shows that materials were often shipped back and forth between the Paris and
Lexington plants.
"The Trial Examiner found , among other things, that the Respondent did not remove
materials from the Lexington plant except for reasons of business expediency , and that
Salant never said , in a telegram to the Lexington plant, that he was having materials and
machinery moved because he would not deal with the C . I. O. These findings are beside the
rpoint.
SALANT & SALANT, INCORPORATED 355
he was not asked whether he questioned Horn about voting. ' We
credit Maness, Horn, and Jowers '
Even after the election, supervisors continued on occasion to im-
press upon employees the futility of their having chosen the C. I. O.
as bargaining agent. Ollie Scates testified that Odle, in November,
asked him if he knew what they were doing with the "new machines"
and then said these machines were being shipped to Lawrenceburg
because Salant was going to sell or close the Lexington plant rather
than deal with the C. 1. 0. According to the testimony of Irene Derry-
berry, Supervisor Head, on November 20, told her the plant would
not be there long but she wanted good quality as long as it was. Head
denied the statement Derryberry attributed to her and Odle denied
the statement Ollie Scates attributed to him about removal of the
machines. We credit Derryberry and Ollie Scates.30
The complaint alleged that the Respondent "kept under surveil-
lance the meeting places, meetings and activities of the C. I. O. and
the concerted activities of its employees. . . ." White testified that
Odle attended the first C. 1. 0. meeting on August 2.31 In explanation
of this, Odle testified-that he came,to.town one night and seeing a big
crowd at the city hall asked "what was doing," that he was told they
were having a union meeting "or fixing to organize a union'-'; that he
went up for about 5 minutes and then came down, and that he merely
"stopped to see what was going on"; that he attended no other meet-
ings and made no "list" of those he saw at the meeting. On cross-
examination he denied that he went up to see who was at the meeting,
or that he knew that he shouldn't go to such meetings until Bagwell
told him that "several days later." Undenied was employee Grissom's
testimony that during the first two-or three C. I. O. Meetings she saw
Edward Horn, her supervisor, and his wife drive slowly up and down
'B The Trial Examiner did not refer to this testimony of Dyer and Dwyer but credited
Armstrong generally . He also did not refer to Jowers ' testimony ; and he credited Odle
rather than Maness and Horn. Apparently he resolved the credibility issues thus raised by
concluding that Armstrong and Odle, like all the, Respondent ' s supervisors who testified,
were "forthright and honest witnesses ." We are unable to rely upon this judgment. See
our conclusions , below, and footnote 40. We are of the opinion that all the relevant
circumstances preponderate to support our credence of Dyer, Dwyer , Maness, Horn, and
Jowers.
"The Trial Examiner referred only to the Ollie Scates -Odle conversation in November, as
to which he apparently resolved the credibility issue by his general conclusion that all the
Respondent 's supervisors who testified were "forthright and honest witnesses."
In addition , the Trial Examiner found that "at no time did [the Respondent ] remove any
machinery from the plant ." This finding is both irrelevant ( compare our discussion of the
telegram episode, and footnote 28, supra ) and inconsistent with Robert Salant's testimony
that no machinery was ever removed from the Lexington plant, particularly after the
election, except for business reasons. The probable truth of Derryberry 's and Ollie Scates'
testimony is attested by the entire record. See our general discussion , below.
ai Mrs. White testified that Ray Richardson , who later in August 1946 became a foreman,
also attended that meeting.
356 DECISIONS :OF NATIONAL LABOR. RELATIONS BOARD
the street looking toward the city ha11.32 , We find that Odle's attend-
ance at the August 2 meeting was an invasion of the employees' right.
.to privacy in associating and meeting. - for. the purposes of self-organi-
zation.33 In addition, whether or not we credit Odle's implausible
claim that he was unconscious of any wrongdoing 34 on this occasion,
lie admittedly stopped at the meeting "to see what was going on."
This is a plain instance of surveillance of employees' concerted activi-
ties. Moreover, unlike the:Trial Examiner, we find, on the basis of
Grissom's uncontradicted testimony,, that Horn was in the vicinity
of the city hall on the occasions named,for the purpose of spying upon
the union activities of the employees.35
Conclusions as to Interference,, Restraint, and Coercion
1. A. B. Salant's activity; surveillance
The Trial Examiner found that the conduct of A. B. Salant Oil
August 10 and 12 was not violative of the Act. For the reasons
sufficiently indicated in our findings and discussion above, we dis-
agree. We find that, on these two occasions, by Salant's interrogation
of employees about their union activity, by his thinly veiled threats
that employees would suffer economic disadvantage if the C. I. O.
enlisted a majority at the Lexington plant, and by his strategically
timed promise of a wage increase, the Respondent infringed upon its
employees' organizational freedom, 'in violation of Section 8 (a) (1),
of the Act.
We also find, contrary to the Trial Examiner, that the conduct of
Odle and Horn in respectively attending and surveying C. I. O. meet-
ings constituted additional violations of Section 8 (a) (1) of the Act
by the Respondent.
2. The activity of Gilley and the supervisors
As. we have shown in our detailed findings above, the General
Counsel called many employee witnesses who testified that Gilley and
"Grissom lived next door to the city hall in 1946. Supervisor Horn did not testify.
The Trial Examiner mistakenly found that Grissom so testified with respect to "a" meeting:
rather than the "first 2 or 3."
as Standard-Coosa-Thatcher Company, 85 NLRB 1358.
as Odle had been head mechanic at the Lexington plant since 1940, and patently remem-
bered the 1943 "trouble ," though he attempted to deny such recollection in his testimony..
He reluctantly admitted that he had "heard" of the Respondent's opposition to the C. I. o..
as We disaffirm the Trial Examiner's. contrary rulings as to surveillance . Barr Packing'
Company, 82 NLRB 1, 9. See . also Cleveland Veneer Company , 89 NLRB 617 . Compare
Boreva Sportswear, Inc., 73 NLRB 1048 , 1058 ; Snnnyside Winery, 77 NLRB 93, 96.
SALANT'& SALANP, INCORPORATED 357
seven of the supervisors at the Lexington plant 86 attempted to coun-
eract the C. I. O.'s 1946 drive by telling employees that the Re-
spondent would never deal with the C. I. 0.; that employees would
be well advised to vote for the A. F. L. because the Respondent would
not bargain with the C. I. 0., but would accept the A. F. L.; and
that cut-backs, layoffs, even abandonment of the plant would probably
ensue if the C. I. O. should be selected as bargaining agent. We have
credited this testimony, in many instances disbelieving the super-
visors' sworn denial of statements imputed to them by the General
Counsel's witnesses and thereby reversing direct or inferential find-
ings of the Trial Examiner as to the credibility issues involved. We
digress at this point to explain why, in this case, we have so exten-
sively rejected the Trial Examiner's judgment as to the truth or
falsity of testimony taken before him.
As the Board recently stated in Standard Dry Wall Products, Inc.,
91 NLRB 544:
In all cases, save only where there are no exceptions to the
Trial Examiner's proposed Report and Recommended Order, the
Act commits to the Board itself, not to the Board's Trial Exam-
iner, the power and responsibility of determining the facts, as
revealed by the preponderance of the evidence? Accordingly, in
all cases which come before us for decision we base our findings
as.to the facts upon a, de novo review of the entire record, and do
not deem ourselves bound by the Trial Examiner's findings.
Nevertheless, as the demeanor of witnesses is a factor of conse-
quence in resolving issues of credibility,2 and as the Trial Exam-
iner, but not the Board,.has had the advantage of observing the
witnesses while they testified, it is our policy to attach great
I See Sec . 10 (c) of the Act, and compare Sec. 4 ( a). See also : Consumers Power
Co. v. N. L . R. B., 113 F. 2d 38, 43 ( C. A. 6) ; N. L. R. B. V. Air Associates , Inc., 121
F. 2d 586 ( C. A. 2) ; N. L . R. B. v. Botany Worsted Mills , 133 F. 2d 876 , 882-883
(C. A. 3) ; N. L. R. B. V. Laister -Kaup'mann Aircraft Corp ., 144 F . 2d 9, 16 (C. A. 8) ;
N. L. R. B. v. Tex - O-Kan Flour Mills Co., 122 F. 2d 433 , 437 (C. A. 5 ) ; N. L. R. B. v.
Universal Camera Corp ., 179 F. 2d 749 , 752-753 ( C. A. 2), cert. granted May 29,
1950 , 339 U. S. 962.
2 But only one of the many factors by which credibility is tested. See Eastern
Coal Corporation , 79 NLRB 1165 , 1166, affd. 176 F. 2d 131 ( C. A. 4). Compare
Wigmore, Evidence, Sec. 1396 ( 1940 ). See also : N. L . R. B. v. Sartorius , 140 F. 2d
203, 205 ( C. A. 2), enforcing 40 NLRB 107 , in which no Intermediate Report was
issued; N. L . R. B. v. Brown Paper Company , Inc., 133 F. 2d 988, 990 (C. A. 5) ;
N. L. R. B. v. Tex-O-Kan Flour Mills Co., 122 F. 2d 433, 437 (C. A. 5).
E8 So far as the record shows , there were only 10 members of the supervisory staff under
Bagwell at the Lexington plant in 1946 , including Head ; who travelled from plant to plant,
and Richardson , who became a supervisor in August . Six of the seven supervisors impli-
cated in this line of testimony , but neither Bagwell or Gilley, were called as witnesses for
the Respondent.
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
weight to a Trial Examiner's credibility findings insofar as they
are based on demeanor.' Hence we do not overrule a Trial,
Examiner's resolutions as to credibility . except-where, the clear
preponderance of all the relevant evidence convinces us that the.
Trial Examiner's resolution was incorrect.
3 Lancaster Foundry Corporation, 75 NLRB 255, 256; Robbins Tired Rubber
Company, Inc., 69 NLRB 440; Vermont American Furniture Corp., 82 NLRB 408;
Minnesota Mining & Mfg ., 81 NLRB 557. Compare : Security Warehouse and Cold
Storage Co ., 35 NLRB 857 , 883-884, enfd . 136 F. 2d 829 (C. A. 9) ; Bahan Textile
Machinery Co., 43 NLRB 97, 100; Bohn Aluminum and Brass Corp ., 67 NLRB 847,
849; Cedartown Yarn Mills , 76 NLRB 571, 573.
In the present case we have adhered to this general policy, but we
have overruled numerous credibility findings of the Trial Examiner-
even some findings which appear to be based primarily on demeanor-
because we are convinced that the evidence pertinent to each of these
credibility issues clearly preponderates against the Trial Examiner's
resolution.
In making our independent review of this record, we have carefully
considered the fact that the Trial Examiner's resolution of credibility
issues must have been influenced by his appraisal of matters which we
are not in a position to judge independently : the personality and
behavior of the witnesses on the stand. But the Intermediate Report
is so drafted that we are left in doubt as to the Trial Examiner's
actual reaction to most of the individuals who testified in his presence..
Reciting generally that his findings were based upon' his "observation
of the witnesses," the Trial Examiner reported specifically that he.
had received a favorable impression of "the supervisors who testified
in this proceeding," and added that "many, if not all of the [General
Counsel's] witnesses.... gave confusing and self-contradictory tes-
timony...." We find these blanket observations unrevealing and
of comparatively slight value. For one thing, the Trial Examiner's
general characterizations of groups of witnesses disclose little or
nothing as to his reaction to particular personalities. And, as to the
employees who testified for the General Counsel, the Examiner's state-
ment that their "testimony" was "confusing and self-contradictory"
(a statement for which we find little support in the transcript) is un-
informative as to whether or not the Trial Examiner believed from
their appearance on the witness stand that these persons were trying to
tell the truth. The Trial Examiner implied that these witnesses were
unbelievable because the General Counsel might have called other per-
sons to corroborate them,37 but the absence of cumulative evidence
does not alone discredit sworn' testimony. Moreover, the value of the'
37 As we have noted above ( footnote 22) the Trial Examiner applied this adverse criti-
cism only to the General Counsel's evidence , not the Respondent's.
SALANT & SALANT, INCORPORATED 359
Trial Examiner's observations of demeanor in this case is diminished
by his repeated citation of asserted objective reasons to support con--
clusions as to which of two conflicting versions,of material facts was
worthy of credence 38 because, in many instances, we have found those.
very reasons to be unsupported by the record. In a significant num--
ber of instances the Trial Examiner seems to have become confused
as to time sequences, the identity of persons, the actual purport of
what witnesses said on the stand, and other circumstances relevant to,
credibility. He appears also to have been influenced, in discounting
much of the testimony offered by the General Counsel, by his erroneous.
legal opinion that the testimony in question, whether credited or not,,
had no material bearing upon the unfair labor practice issues in the,
case.39 These defects in the Report impel us not to rely in this par-
ticular proceeding upon a respected Trial Examiner's appraisal of
the demeanor evidence.
We are mindful that an unclear Report does not necessarily sig-
nify that the Trial Examiner who wrote it was wrong in his judgments.
as to credibility. This being. so, we might well have accepted the
credibility findings of the Trial Examiner in this case, were it not for-
his failure to recall and properly evaluate background facts, corrobo-
rative testimony, and other objective circumstances bearing upon the-
probable veracity of each witness in turn. He appears'to have judged-
each witness in isolation, and appraised each bit of testimony as if-
it stood alone. Using this wholly fragmentized, approach, he failed.
to perceive the integrated pattern which emerges when the inde-
pendent and apparently unrehearsed stories of all the General Coun-
sel's witnesses are dovetailed.
On a reading of the entire record, we find this connected web of
testimony wholly convincing, and doubly so when it is considered-
against the background of the Respondent's established anti-C. I. O.
policy. To illustrate, we, like the Trial Examiner, might have been,
skeptical of Ernest Scates' testimony about his conversations -with
38 For Instance, the Trial Examiner termed "inconceivable" Ernest Scates' testimony-
that Odle, in July, asked him to get Mrs. White to work for the A. F. L., because, the-
Trial Examiner thought, the witness (whom he confused with his cousin Ollie Scates)
was already known as a C. I. O. leader at the time of the conversation in question. How--
ever, as all the evidence clearly shows that the C. I. O. campaign was not fully under-
way until August 2, find that Ernest Scates did not join the C. I. O. until August 3,.
we can perceive nothing "inconceivable" in this testimony.
Likewise, the Trial Examiner's finding that no supervisor ever informed an employee
that the Respondent would close the plant if the C. I. O. won the election seems to be-
based on his irrelevant finding that the record disclosed no such actual intention on the
part of the Respondent.
See also footnotes 25, 26, 28, and 30 above. Other factual inaccuracies, which reduce-
our willingness to rely upon the Trial Examiner's conclusions, are pointed out in our-
discussion of the 8 (a) (3) issues, below.
11 See, for example, footnotes 10 and 23, above.
X60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gilley and Odle on August 13, in which he was told of the alleged
telegram from Salant, i f that testimony stood alone. But Ernest
•Scates' testimony as to this subject does not stand. alone. When we
'consider the corroborative circumstances and testimony-all of which
the Trial Examiner apparently overlooked-we have no real choice
,but to reverse the Trial Examiner's findings that Scates was not en-
titled to credence.. Four other witnesses for the General Counsel said
that they had heard about this telegram from Gilley, Odle, Armstrong,
.and Garner. It seems most unlikely that all this testimony was pure
invention. The Respondent did not trouble to call Gilley, who was
:said to be the recipient of the alleged telegram. Moreover, it was
-quite true, as the telegram is supposed to have said, that Salant had just
then announced. his refusal to bargain with the C. I. O. at Union City.
And, considering that the supervisors involved were all old hands,
:familiar with the Respondent's history of opposition to the C. I. 0.,
it seems a matter of simple human probability that they should have
-believed, and said to employees, that Salant would not bargain with
the C. 1. 0. at Lexington.40 The demeanor of these supervisors on the
stand may have been straightforward and prepossessing. We respect
,the Trial Examiner's impression that they were forthright and hon-
est, but in good conscience we must find that it was the General Coun-
sel's witnesses, not the supervisors, who were telling the truth in this
instance. It is essentially for the same reasons that we have credited
-the testimony of the General Counsel's employee witnesses as to sev-
eral other, similar, episodes and conversations, as particularly noted
,elsewhere in this opinion.
Reversing the Trial Examiner for the foregoing principal reasons,
-we have found that Gilley and most of the supervisors at the Lexing-
ton plant, in July 1946 and thereafter, declared to employees on nu-
merous occasions that the Respondent would never bargain with the
C. I. 0., although it would accept the A. F. L. as bargaining agent,
.and threatened that the Respondent would take measures of economic
40 Each and every one of the supervisors who testified avowed either that he had no
inkling of the Respondent ' s opposition to the C. I. 0., or that he was unaware of the
-union activity among . the employees, or. that he had never discussed the spirited union
.campaign at all, even with other supervisors or in his own home. Their assertions that
they maintained an aloof and disinterested attitude toward the whole subject severely
tax our credulity . The Respondent admitted that it had advised all of its supervisors,
by memorandum, that it had been "harassed" by the C. I. O. One of the supervisors,
Armstrong , admitted knowledge of this memorandum, and then changed his testimony,
.and one Odle reluctantly admitted knowledge of the Respondent's anti-C. I. O. sentiment.
We think that the real attitude of the supervisors is more accurately shown by testi-
mony like that of Hamlett , who said without direct contradiction that Garner, when
.advised of the C. I. 0.. victory by employee Martin, asked whether "anything could be
done about it before the C. I. O. got a contract," and like that of Ollie Scates who reported,
-without contradiction, a remark of Odle's that Bagwell was "right" when he said the
union campaign "would cost him his job."
,SALANT & 'SALANT, INCORPORATED 361
reprisal if the C. I: O. should win the election. There remain for
consideration, as to this branch of the case, certain minor legal issues.
Argumentatively assuming the truth of 'the facts discussed above,
the Trial Examiner found that the anti-C. I. O. propaganda dissemi-
nated by Gilley and the supervisors was not a violation of the Act
because the Respondent through A. B. Salant had announced a posi-
tion of neutrality in the union campaign, and because it was apparent
that the supervisors who spoke against the C. I. O. were expressing
only their personal opinions. The Trial Examiner also found no evi-
dence to show that Gilley was an agent of the Respondent. This is
completely erroneous. The record does show that Gilley, as well as
the supervisors, were agents of the Respondent in labor relations.
Their anti-C. I. O. propaganda, summarized above, went beyond mere
expressions of opinion and tended to deprive employees of the or-
ganizational freedom guaranteed them in the Act. Nothing that was
said or done by A. B. Salant in this case nullified the coercive effect
of his subordinates' unified efforts to keep the C. I. O. out of the Lex-
ington plant.
We find, therefore, that by the statements of Gilley and the super-
visors detailed in our recital of facts above, and by Armstrong's and
Odle's interrogation of employees as to their union affiliations or
activity, the Respondent violated Section 8 (a) (1) of the Act.
0. The alleged assistance to the A. F. L.
The complaint alleges that the Respondent initiated and sponsored
the A. F. L., that it assisted, dominated, and contributed support to it,
and that it also urged and threatened its employees to assist and be-
come members of the A. F. L. The evidence tending to support these
allegations is as follows :
As we have already found, A. B. Sala.nt, Gilley, and supervisors at
the Lexington plant, in talking to the employees on various occasions
described above, coupled expressions of preference for the A. F. L.
.with threats of economic reprisal or declarations that the Respondent
would not deal with the C. I. O. Similarly, according to Ernest
Scates, Odle went so far as to ask him in late July (before the witness
had definitely made up his mind to support the C. I. O. and donned a
.C..I. O. button). to get Adeline White to work for the A. F. L., re-
.marking that the "company" would also be "glad" if Scates himself
would promote the A. F. L. Odle denied this testimony. We credit
Scates.41
41 In finding Scates' testimony " inconceivable ," the Trial Examiner confused Ernest
Scates with his cousin, Ollie , and apparently misconceived both the actual purport of
Ernest Scates ' testimony as well as the time and other objective circumstances to which
it referred . These objective circumstances ( see footnote 38, above ) and the entire record
support our belief of Scates' testimony.
929979-51-vol. 92-25
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Two witnesses for the General Counsel, Ray Goff and James
Garvey, the latter a former supervisor,42 testified that Hal Milam,
foreman of the shipping department, actively participated in the
A. F. L.'s drive for members, collecting signed A. F. L. cards from
employee solicitors and helping to count and list A. F. L. adherents.
Goff testified that he himself actually solicited at least three employees
to join the A. F. L. at Milam's request. Milam denied that he assisted
in A. F. L. solicitation, but we credit the mutually corroborative testi-
mony of Garvey and Goff.43
The Respondent's support of the A. F. L. also took the form of
restricting C. I. O. solicitation during working hours, while permit-
ting A. F. L. adherents to solicit without restriction.. Ollie Scates
testified that after the union campaigns began, Supervisor Melton
was watchful of him and of his cousin Ernest in their contacts with
production employees while repairing machines, and that Melton fol-
lowed them about in their work, telling them a machine did not need
repairing or that the repair was satisfactorily completed 44 Ernest
Scates, too, testified that Melton was "plenty tough" on him during
his first period of service at the plant and that when he was rehired
Bagwell promised him that he would "not be bothered at his work
by Melton." 45
42 See Section III D below where this witness' termination of employment is discussed.
"The Trial Examiner found that Garvey's testimony as a whole was "concocted,"
overlooking the corroboration in Goff's testimony . We do not believe the record justified
the Trial Examiner 's condemnation of Garvey. See footnote 83 below.
As to Goff's testimony , contradicted by Milam, the Trial Examiner overlooked not only
the corroboration in Garvey's testimony but the partial corroboration in employee Jowers'
testimony that he had signed an A. F. L. card at Goff's request . Presumably the Trial
Examiner included Goff. like other employee witnesses , in his blanket characterizations
of "confusing" and "self-contradictory ." The Trial Examiner found Milam "forthright
and honest ," a finding which , as discussed in footnote 83 below , we do not think his testi-
mony as a whole merits. Testimony ignored by the Trial Examiner , which tends to
confirm Milam 's assistance of the A. F. L ., was City Recorder Brown's admission that
he had told Board agents that Milam asked for the city hall for an A. F. L. meeting.
However, on the stand , Brown would not swear that Milam had made such a request,
although admitting his previous statement to Board agents.
49 Ollie stated that Melton "stayed in part of the building where she could observe"
all their movements . He also referred specifically to one occasion in September 1946
before the election, when he had been called to repair the machine of an experienced
operator who had been rehired after a prolonged absence. As he recalled the incident, in
not "over two minutes' Melton came up and said nothing was wrong with the machine,
told him he-should not he talking-with the operator , and that he should leave.
46 In March 1947 Ernest Scates was rehired after a long layoff . It is implicit in the
mutual conditions imposed in this rehiring-by Bagwell , that Scates should not exploit
his position as a roving employee to work for the C. I. 0., and by Scates that he should
not "be bothered in his work " by Melton-that Bagwell admitted that Melton had unneces-
sarily interfered with Ernest Scates' work.
SALANT & SALANT, INCORPORATED 363
Melton denied "following" the Scateses at their work but testified
that she might have asked them "what was wrong" with a,machine,
or how long it would take to fix it. We credit the Scateses48
Ray Goff testified that he "had to stay a lot closer" to his machine
after he "switched" to the C. I. O. because a supervisor or Bagwell
would always "turn up" when an employee was handing out C. I. O.
cards, but not if the cards were A. F. L. According to Bertha Lewis,
an active C. I. O. member, Forelady Audrey Lancaster stopped the
.witness "talking C. I. 0." one day shortly before the election, disre-
garding Lewis' protest that "some" could go all over the factory and
talk, but "we" couldn't "say a word." Lewis also testified that Roy
Martin, an employee in Milam's shipping department, "was all over
the factory . . . working for the A. F. L." without restriction. The
testimony of Lewis and Goff was undenied. We credit it47
In addition the record contains some evidence that the Respondent
not only supported 48 but actually initiated the A. F. L.'s member-
ship drive. Goff testified on rebuttal that on August 1 Odle told
him that he had "burned midnight gasoline last night looking for
an AFL organizer." We also note that Garvey testified that Gilley
asked him "before the C. I. O. campaign" whether he knew of an
A. F. L. organizer. But whether or not this undenied testimony of
Goff and Garvey be credited, we find it insufficient to establish that
the A. F. L. organizational drive, which was commenced also simul-
taneously with that of the C. I. 0., was actually initiated by the
Respondent.- We do find, however, that the acts and statements of
A. B. Salant, Gilley, and the various supervisors as recounted above
constituted assistance to the A. F. L. in violation of Section 8 (a) (2)
of the Act.
40 Obviously Melton did not deny questioning the Scateses at their work . The Trial
Examiner made no reference in the Intermediate Report to any testimony concerning
discriminatory restrictions on C. I. O. solicitation . Ernest Scates testified that Bagwell,
in the presence of one Davidson , an executive of the Respondent , told him Melton would
no longer bother him . Davidson was not called as a witness , and, as previously observed,
Bagwell also did not testify . Melton's denial that Bagwell ever told her, in the presence
of Davidson and Scates , "not to follow Ernest Scates around ," is not relevant.
'.' ,In its brief to the Trial Examiner , Respondent refers to an inconsistency in Goff's
testimony concerning his having "carried" C . I. O. cards in the plant. We think Goff's
testimony , in its context , is not inconsistent . Goff testified on direct examination that
he "carried " no C. I . O. cards , meaning he made no attempt to get them signed during
working hours . On cross-examination he admitted that he did "carry" cards in his pocket
while at work.
98 We reject , as clearly erroneous , the Trial Examiner's finding that the "record is
barren of aid or assistance given to the AFL by Respondent."
'B However, the Trial Examiner 's finding that the A. F. L. campaign was commenced
by its own officials or by one of Respondent 's nonsupervisory employees is not supported
by affirmative evidence in the record, and we reject it, as we do his finding that Respondent
maintained a neutral union policy as soon as the A. F. L. and C. I. O. campaigns were
under way.
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The alleged discriminatory diseharrges
1. Annie Bell
The complaint alleges that this employee was discriminatorily dis-
charged on or about August 12, 1946. In its answer the Respondent
avers that Bell quit its employ in April 1946, and that it did not
discriminate against her.
Bell was first hired at the plant in January 1944. She worked con-
tinuously until April 1946, first as a button sewer, later as an inspector,
under Foreman Armstrong. In April 1946 her house was destroyed
by fire and she quit work to assist. in rebuilding it. At that time
Superintendent Bagwell told her to reapply for work whenever her
house was rebuilt. Bell moved back into her house during the first
week of July 1946 and on the second Monday, July 8, applied to Bag-
well for work. Bagwell told her that he was then taking inventory
and had no work for her, but that he would "call" her as soon as work
became available. She saw Bagwell again, about a week later, and
was again told that there was no opening yet 50 Bell then applied
for unemployment compensation but also, according to her testimony,
continued to apply for work at the plant. Meanwhile, she attended
the C. I. O.'s first meeting, on August 2, and several other meetings
which were held subsequently.51
Bell testified that the third time she went to the plant seeking
work-she thought this was in August-she was looking for Bagwell,
but was intercepted by her foreman, Armstrong; and that Armstrong
told her she need not speak to Bagwell, as Bagwell had already in-
structed him (Armstrong) to recall her to work, and he would do so..
Bell further testified that, a few days later, and a day or two after
she had attended one of the evening C. I. O. meetings, she called
Armstrong on the telephone and asked him when she could expect to
be reemployed. This time, according to Bell, Armstrong said he
"didn't know so much about it now," inquired "what side of the fence"
Bell was on, and stated that he would have to know this before he
could "tell [her] any more about corning back to work." He also said
that he had heard she "attended a meeting the other night" and when
she pointed out that other plant employees had been at the same meet-
ing, he observed, "Yes, they are already working and you are not;
you are just trying to get back on"; and added that she would have to
see Bagwell. Armstrong, called as a witness at the hearing, flatly de-
"These facts are contained in Bell's uncontradicted testimony , apparently credited
by the Trial Examiner . Bagwell did not testify.
51 The Trial Examiner found that Bell never joined either the C. I. O. or the A. F. L.
This finding is immaterial to the question whether the Respondent discriminated against
Bell because of her C. I. O. activity.
SALANT & SALANT, INCORPORATED 365
nied these conversations with Bell, and went so far as to make the im-
plausible claim that he, Bell's own foreman, did not even know that she
was. trying to obtain work again after repairing the fire damage to
her home. Bell's testimony was clear and unshaken; Armstrong of-
fered incredible testimony as to other significant matters. We be-
lieve Bell.52
After her second conversation with Armstrong, Bell made -no
further application for work at the plant, believing that it would
be futile. She was never rehired by the Respondent. In April 1948,
through the State employment service, the Respondent offered Bell
a position, but she was then working elsewhere and did not accept
the offer.
The record indicates that an experienced employee was hired for
button sewing-an operation at which Bell was experienced-in
September 1946; and Blackwell, also an "experienced employee," was
hired as an inspector on November 18, 1946.53 Bell was not offered
either of these jobs, although it was the Respondent's policy, accord-
ing to the testimony of plant superintendent Giles, to offer reemploy-
ment to "experienced operators on . . . jobs that were open." 54
To recapitulate : In July, before Bell participated in any union
activities, Bagwell definitely represented to her that she could expect
to be reemployed, although he had no job immediately available for
her at that time. A month later, Armstrong told her, in effect, that
she could not "get back on" unless her position on the union question
was acceptable to the Respondent.55 Thereafter, the Respondent
never fulfilled the promises to recall Boll, made by both Bagwell and
Armstrong. Considering these facts, and the Respondent's policy of
opposition to the C. 1. 0., we are convinced, and find, that Bell was
62 In concluding that the discrimination charge as to Bell was unproved , the Trial
Examiner relied partly on Armstrong 's testimony , which he credited , but he also relied
upon other circumstances which , in our opinion , do not suffice to overcome the evidence
of discrimination. Examples of incredible testimony given by Armstrong , a foreman
for 10 years, include his denial of knowledge of any material or machinery removal, and
denial of knowledge of respondent's antiunion record except what he "read in the paper"
and did not remember.
63 Giles, the plant superintendent at the time of the hearing, so testified , stating that
Blackwell was the first inspector hired "after July 11, 1946" (a date which coincided
approximately with Bell ' s first application for reinstatement).
64 Robert Salant , in his testimony , described this policy as based on "a combination of
work [meaning, presumably, competence] and seniority," but it does not appear that there
was any formal seniority rule in effect in the Respondent ' s plants , under which a particular
sequence was followed in the recall of experienced employees . Apparently the names of
qualified former employees were kept in the Respondent 's files for a considerable period of
time , for Giles testified that prior to April 1948 ( when Bell and other claimants in this
case were offered reemployment ) it had been the Respondent's practice to "go through"
its files and " offer reemployment to old employees " from time to time.
66 It was at about this same time that Bagwell told Gurley, another C . I. 0. supporter
whose case is discussed below , that he would not rehire her after a layoff as - long as the
"yah-yah and the mess went on down there."
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminatorily denied consideration for reemployment at the Lex-
ington plant in August 1946,68 because her interest in the C. I. O.
had become apparent. The Respondent thereby discouraged union
membership, in violation of Section 8 (a) (1) and (3) of the Act.
2. Theoda Gurley
The complaint alleges that Gurley was discriminatorily discharged
on or about August 19, 1946. The Respondent avers in its answer
that Gurley was permanently terminated on June 28, 1946, for lack
of work '57 and that no work was available for her when she reported
on August 19, 1946.
Gurley was first hired at the plant in 1932. She worked last as
a collar setter but had also done button holes, buttons, collar band
stitching, and pocket sewing. The last day she worked was June
28, 1946. After that she sent word to her forelady, Audrey Lancaster,
that she was ill and would have to take some time off, to which Lan-
caster assented.
Gurley testified that she joined the C. I. O. "some time in the last
of August" and attended some C. I. O. meetings, although she did
not "think" she attended the first one."' She applied for work at the
plant again on August 19, 1946, when Bagwell told her he was
"sorry" but he couldn't use her "as long as the yah-yah and the mess
went on down there" and advised her to "get out and get another
job." Asked why he was then hiring people for work she could do,
Bagwell said he didn't know she could do other jobs.59
Previously Gurley had been off sick and had no trouble getting
back to work immediately. On April 12, 1948, she was advised that
employment was available for her at the plant, but after one attempt
to respond, on a day when the plant was not working, she ignored the
notice and continued to work elsewhere.
When Gurley sought to return to work at the plant on August 19,
1946, the union campaign was at its height. By that time it appears
that three of the weekly C. 1. 0. meetings had been held at the city hall
56 In computing the loss of pay suffered by Bell, the Respondent, of course , will not be
charged for the period, whatever it was, between August 1946 and the date when suitable
work was available for Bell.
64 Inconsistently , the Respondent attempted to introduce in evidence an unsigned carbon
copy of a separation slip dated August 16, 1946, showing that Gurley quit due to sickness.
sa The Trial Examiner 's finding that the record is "devoid of any evidence that Gurley
engaged in any concerted activities protected by the Act" is clearly erroneous.
ee Gurley testified that she had done collar setting for approximately the last year of her
employment . Before that the evidence indicates that she had changed around on other
operations . Bagwell appears to have been in charge of the Lexington plant at least since
1943. ( Salant & Salant, Inc., 66 NLRB 24, 99 ). In view of Bagwell 's long service as
superintendent , the small size of the plant, and Gurley 's 14 years of employment at this
plant, we think Bagwell knew that Gurley could do jobs other than collar setting. Bagwell
did not testify.
SALANT & SALANT, INCORPORATED 367
and some smaller meetings at employees' homes. Assuming Gurley
did not attend the August 2 meeting, which Supervisor Odle attended,
there was ample opportunity, before she applied to return to work,
for her to attend subsequent meetings, during which Supervisor Horn
was seen watching the city hall. That her attendance at such meet-
ings had come to the Respondent's attention by August 19 we think
is shown by Bagwell' s comment 6e that he couldn't use her while the
"mess went on." In effect, Bagwell by this remark admitted that he
at least suspected her of C. I. O. leanings and was unwilling to re-
employ her and risk an increase in the number of employees who ex-
hibited an interest inthe C. I. O61 We find thta by Bagwell's refusal
to reemploy Gurley on August 19, 1946,62 the Respondent discrimi-
nated in regard to the hire or tenure of her employment in violation of
Section 8 (a) (3) of the Act, thereby violating Section 8 (a) (1) of
the Act.
3. Exie Dyer
The complaint alleges that Dyer was discriminatorily discharged
on or about October 11, 1946. In its answer the Respondent avers
that Dyer was discharged for cause.
Dyer was employed by the Respondent as an inspector from August
1940 to October 11, 1946. She joined the C. I. O. and wore her button
at work, in plain view, throughout the month of August 1946. She
testified that she attended the first C. I. O. meeting on August 2, and
missed only a few of the others. Armstrong, her foreman, unques-
tionably knew of her C. I. O. affiliation because it was she who told
him in August, when he asked her whether she had filled out a card,
that she had,filled out a blue (C. I. 0.) card.
Dyer was 1 of 14 inspectors, only 3 having been employed longer
than she. She testified without contradiction that she had consis-
tently made her quota, that all inspectors occasionally had a few shirts
returned for defects which they had passed, but that no one was dis-
charged for this, and that she had had no shirts returned to her for
80 We note that the Trial Examiner credited Gurley's account of her August 19 interview
with Bagwell.
m Assuming that Gurley did not join the C. I. O. until after August 19 , "the law is clear
that the discharge of a nonunion member is none the less discriminatory when it is moti-
vated by a belief, or even a suspicion , of her union membership , activity , or sympathy."
Boreva S ortswear, Inc., 73 NLRB 1048, 1065 , citing N. L . R. B. V. Vincennes Steel Corp.,
117 F. 2169 ( C. A. 7).
°' Giles, the plant superintendent at the time of the hearing , testified that the Respond-
ent's records showed that after August 20 , 1946, the first collar setter was hired on March
31, 1947 . We do not regard this as the date of discrimination agaihst Gurley because it
was in August 1946 that Gurley, like Bell , was apparently stricken from the Respondent's
rolls of employees eligible for recall. Moreover , Gurley, with 14 years' experience at the
plant, could perform numerous,operations , and Bagwell tacitly admitted . In August 1946,
that there was work available.
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"quite a while" before her discharge. Armstrong testified that at,
some unspecified time prior to the day of Dyer's discharge he had_
"had occasion" to warn her about bad work 63 However, we credit
Dyer's testimony that, although Armstrong had admonished the in-.
spectors as a group, on several occasions, to maintain production and
pass no bad work, she had never been warned individually.-
Inspecting consists of looking over shirts, pulling off strings, but-.'
toning the shirts, stacking them in bundles of 5 dozen, and placing on
the bundle a ticket bearing the inspector's name, the number of dozens,
and the cut. On Friday afternoon, October 11, 1946, Armstrong came
to Dyer's table and Dyer heard him tell Quality Supervisor Head that
he had "the shirts" ready for her, whereupon Armstrong and Head.
brought 2 or 3 dozen shirts to Dyer. Apparently Superintendent Bag-_
well came up at this point. According to Dyer, Head said, "We can't
have this kind of work"; she (Dyer) replied that the shirts were not
hers; then Bagwell told her to go to the office and get her check.
According to Armstrong, Dyer said, "That's the best I can do," with-
out explaining that she had not inspected the shirts in .question. Ac-
cording to Head, too, Dyer said merely that she was doing as well as
she could do, that if the Respondent could get somebody who could
do better they should do so. Dyer did not remember saying this, and
denied that she "talked back" to Head.
Dyer testified that she did not believe the shirts in question had been
passed by her because one of her tickets was pinned on the bundle,
and she had been splitting her tickets over buttons for 2 days, having
run out of pins. She further testified that when she tried to explain
this to the three supervisors, they paid no attention. The record
shows clearly that only one inspector's ticket is placed on each bindle
of 5 dozen shirts, and that this ticket is removed by the presser. Head
and Armstrong both admitted that the shirts brought to Dyer were
the remnant of a bundle on which a presser had started, thus indi-
cating that the original inspector's ticket had been removed from that
bundle.
03 Asked by Respondent's counsel to describe what happened when Dyer was discharged,
Armstrong had volunteered that he "told [Dyer] about her bad work:" on the morning of
October 11, "two or three times." The following colloquy then ensued :
Q. . . . Prior to. the day of her discharge, had you had occasion to warn her about
her work?
A. Yes sir; I did that morning.
Q. Had you before that morning?
A. Yes, sir.
This testimony scarcely supports the Trial Examiner's finding that Armstrong "had.com-
plained to Dyer about her passing faulty work on many occasions prior to her discharge."
(Emphasis added.)
As we have previously noted, Armstrong offered incredible testimony concerning several
significant matters. Dyer, on the contrary, seemed to be a cb.ndid and unrehearsed witness ;.
her testimony, which was unshaken on cross-examination, impresses as as truthful.
SALANT & SALANT, INCORPORATED 369
We find the evidence insufficient to establish that the defective shirts
which Dyer was accused of passing had actually been inspected by her.
As this bundle of shirts had already been broken in the pressing room,
the original inspector's ticket on the bundle must have been removed,
and one of Dyer's tickets could easily have been placed on the bundle
by mistake 65 Moreover, in view of Dyer's long record of satisfactory
service as an inspector, it seems extraordinary that on this one occa-
sion she would have passed several dozen shirts-the greater part of
a bundle of 60, according to Armstrong and Head-which were so
uniformly defective as these were said to have been .6.6 In the circum-
stances, we credit Dyer's testimony that she tried to tell her super-
visors that the work in question was not hers, and we think that their
indifference to her protest indicates that they were bent upon dis-
charging Dyer, regardless of the facts as to the quality of her work.
Dyer was an open supporter of the C. I. O. and, as we have seen, the
Respondent's persistent efforts to frustrate the C. I.O.'s program were
continued after the Board election.67 We find that the Respondent's
actual reason for discharging Dyer upon a flimsy pretext of bad work
was her union affiliation. By the discharge of Dyer on October 11,
1946, the Respondent discriminated in regard to the hire or tenure of
her employment in violation of Section 8 (a) (3) of the Act, thereby
violating Section 8 (a) (1) of the Act.
4. Irene Derryberry
The complaint alleges that this employee was discriminatorily dis-
charged on or about November 20, 1946. The Respondent avers in
its answer that Derryberry "voluntarily quit" on that date.
Derryberry had been a center hemmer at the plant for 10 years.
She testified that she always made production and had received no
criticism of her work except with respect to an occasional shirt.
Derryberry joined the C. I. O. about the middle of August 1946.
She wore her button at work for about 2 days, and testified that she
saw Superintendent Bagwell "give it a hard look" one time. On
November 20, Melton, Derryberry's forelady, summoned Derryberry
from her work to see Quality Supervisor Head. In the presence of
Melton and Supervisor Horn, Head showed Derryberry about 30
85 The testimony of Head and Armstrong that neither of them pinned one of Dyer 's tickets
on. the bundle does not obviate this possibility.
sa Dyer testified that the shirts shown to her had "strings" hanging from them. Head
and Armstrong testified that some of the shirts had no hems or had raw edges on the
hemming, "run off places" on the pockets , and "threads anywhere from 5 to 7 inches long
in the pocket."
6,
As noted above in Section B, Supervisors Odle and Head implied , during the weeks
following the election , that the plant would soon be closing.
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dozen shirts; some of which had the the center hems ripped. Derry-
berry stated that the shirts were not hers, or that they had not left
her machine in defective condition because she backstitched (to-pre-
vent ripping). She also pointed out that she was not the only opera-
tor doing "centers." After the following colloquy :
Head : Well, you don't think you can do the work right?
Derryberry : I am doing the work the best I can.
Head : Well, we don't need you any longer.
Derryberry left the plant. Bagwell called her back the next day and
said that Head had not meant to fire her, as it was his (Bagwell's)
exclusive prerogative to discharge employees. However, another em-
ployee was working in Derryberry's place that morning, and Bagwell
did not offer to put Derryberry back to work. Instead, he gave her
a separation slip bearing the notation, "voluntarily quit," and re-
marked to Derryberry that he was "shocked about her work." He
made no comment upon her reply that she was "as shocked as he was,"
as she had never had bad work returned before.
In April 1948 Derryberry was called concerning work at the plant,
but she was then working elsewhere, and did not seek to be reem-
ployed by the Respondent.-
We find, contrary to the Respondent's contention, that Derryberry
was actually discharged by Head, and that she did not quit volun-
tarily. Bagwell, in effect, confirmed the discharge when he talked to
Derryberry the next day. Moreover, in a significant slip of, the
tongue, Head remarked, during her cross-examination, that she had
"let [Derryberry] go," thereby belying her testimony, on direct, that
she had merely reprimanded Derryberry and then sent her back to
work.
The Trial Examiner found, although the Respondent did not di-
rectly so contend, that even if Derryberry was discharged, it was
for "good cause"-faulty work-rather than for union membership.
We disagree. Head and Melton, in their testimony, attempted to prove
that no less than 400 dozen shirts-more than 2 days' work-all of
which escaped notice at various points along the production line 68
were suddenly detected in the inspection department on the day of
Derryberry's discharge; that the work was unmistakably Derryberry's
because the bad center hems had Derryberry's "key" thread; and that
the ripping of the hems could not have occurred after the shirts left
Derryberry's machine. But here, again, as in Dyer' s case (above),
Center hemming is one of the first operations on a shirt . Giles, the plant superin-
tendent who succeeded Bagwell, testified that any operator who happens to see some
feature of a shirt that will not pass inspection , will ordinarily "throw out" the shirt at
that point rather than send it on for subsequent operations.
SALANT & SALANT, INCORPORATED 371
although it must have seemed extraordinary for such an experienced
employee to turn out so many defective shirts so suddenly, the super-
visors who figured in the discharge 69 appeared to be indifferent to the
employee's protest that the work in question was not hers.. And, again,
the identification of the faulty work as work of the discharged em-
ployee is unsatisfactory. Head and Melton testified that since the
spring of 1946 each of the hemming operators had been required to use
a different color of "key thread" ; but neither of these witnesses could
recall what color Derryberry's "key thread" was supposed to be.
Derryberry denied that key threads were used in center hemming,
testifying that all the hemmers got their thread from the same place
and used the same color, depending on the material cut which was
being processed. There was no convincing refutation of this testi-
mony. We find that the defective shirts of which :Head complained
when she discharged Derryberry were not actually identified as Der-
ryberry's work.
After 10 years of satisfactory service in the same job, Derryberry
was abruptly discharged without warning,70 ostensibly on the basis
of an improbable and unproved accusation of bad work. In this pro-
ceeding, the Respondent does not even contend that Derryberry was
discharged for inefficiency, but rests on the patently untruthful as-
sertion that she quit her job voluntarily. We find that the real reason
for Derryberry's discharge was her C. I. 0. affiliation. Hence we
find that the Respondent discriminated in regard to the hire or tenure
of employment of Derryberry in violation of Section 8 (a) (3) of the
Act, thereby violating Section 8 (a) (1) of the Act.
5. Bertha Lewis
The complaint alleges that Lewis was discriminatorily discharged
on November 25,1946. In its answer the Respondent avers that Lewis
was permanently terminated on November 7, 1946, because she "vol-
untarily quit."
Lewis started to work at the plant on November 11, 1932. She was
a collar setter at the time her service terminated, but had also done
labeling, sleeve boxing, band stitching, and collar bands. She testi-
fied that she had been complimented on her work by various floorladies
and never had more than a few shirts returned for defects. Late in
July 1946, she received a C. I. 0. card through the mail which she
se Neither Bagwell nor Horn testified at the hearing.
70 Head claimed to have warned Derryberry once about bad work, and Melton to have
warned her "prior to that occasion" (the discharge) but in view of Derryberry's long
service and her testimony that she had never had any criticism of her work except for
an occasional shirt, we do not believe she had been given any warning that she would be
discharged unless her work improved.
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed and returned. She attended the first and many of the C. I. O.
meetings and wore her. button at the plant "most every day.". She
actively campaigned for the C. I. 0., signed up members, prepared
union literature for circulation, and was elected to the negotiating
and the grievance committees.
On Monday evening, November 4, 1946, Lewis' daughter, who lived
in Petersburg, Virginia, telephoned that she was about to have a
surgical operation. The next morning Lewis promptly notified Bag-
well in order to give him time to get someone else to do her work, and
asked whether she might leave that week end, taking 2 weeks off to
be with her daughter. Bagwell said that he wasn't supposed to let
anyone off for more than 5 days at a time, to which she replied, "You
know I can't get up there [to Petersburg, Virginia] and back in that
time." He then said, "You could miss a train or different things hap-
pen; get back as soon as you can. 11 71 He also told her to see him
again Friday afternoon.
On Thursday the employees were told that the plant would not
operate on Friday, so Lewis saw Bagwell that afternoon. She testi-
fied that he "spoke as if" he would take her back to work regardless
of the time she returned from Petersburg. She left the next day,
November 8,72 and returned on Sunday, the 24th. While away she
conscientiously wrote to Audrey Lancaster, her forelady, once each
week. In her, second postcard, written November 18, she asked Lan-
caster to explain to Bagwell that she "couldn't be home the weekend"
but "would be there the middle of the week."
However, Lewis did return that week end, and phoned Lancaster
on Sunday. Lancaster said Bagwell had put somebody on Lewis'
machine but she was sure he would -give Lewis some other job until
somebody dropped out, adding that Lewis would have to see Bagwell
before she "punched in." Lewis called Bagwell that same day. He
told her he had no work for her, and when she asked whether that
meant she was "not going to get to work any more," he said "yes."
The next morning Lewis went to the plant for her pay check and
separation sheet, and then to the State employment office to register
for compensation, where she noticed that the separation sheet said
"voluntarily quit." She telephoned to Bagwell and protested this,
telling him she had offered to work and that she must "either work
or draw," whereupon he said, "I will say, you did offer to work."
Lewis told him he should have put "lack of work" on the separation
7 We think the Trial Examiner completely misconstrued this evidence . In her testi-
mony, Lewis stated three or four times that Bagwell's last word was to get back as soon
as she could.
72 The Trial Examiner erroneously stated that Lewis did not leave until Saturday.
the 9th.
SALANT & SALANT, INCORPORATED 373
Sheet and she went down to the plant the next day to try to get him
to do so, but he refused and said he had "plenty of work." In 1944
Lewis had had an accident in the plant that necessitated her being off
for 6 months and she had no trouble getting back to work then.
Neither Bagwell nor Lancaster testified. We credit Lewis' uncon-
tradicted testimony.
On August 14, 1948, Lewis accepted the respondent's offer of reem-
ployment as a beginner at a guaranty of 40 cents an hour-her guaranty
was 55 cents when she left-and was working at the time of the
.hearing.
The Respondent contends that a plant rule limited leaves of absence
to 5 days and that Lewis actually asked only for that amount but took
10 working days and was therefore dropped from the rolls. Neither
contention is supported by the record. A plant notice which Giles
identified 73 referred to the filing of written applications for leaves
of absence of "more than five consecutive working clays." Obviously
applications for absences of more than 5 days were contemplated.
Lewis was not asked by Bagwell to file a written request. In addition,
her testimony that it was not customary to make such requests in
writing was not contradicted. In the circumstances we believe that
the Respondent seized upon the leave-of-absence rule as a pretext for
discharging Lewis."
Lewis was among the first and the more active members of the'
C. I. O. at Lexington. Considering her long and satisfactory service
at the plant, her ability to do several operations, the validity of her
reason for being absent, Bagwell's clearly implied assent to her absence,
her conscientiousness in advising her forelady while she was away, and
the latter's assurance that when she returned that she would be put to
work immediately, we conclude that the refusal to reinstate Lewis
when there was work available can only be ascribed to her known union
73 The following signed carbon copy of a notice , Respondent ' s Exhibit 34, was admitted
in evidence as having been found posted in the plant by Superintendent Giles when he
took over in February 1948 . Giles testified that he had no knowledge of the 1946 leave
policy at Lexington , and there is no evidence as to whether or not this notice was actually
posted in 1946:
NOTICE TO EMPLOYEES
MARCH 4, 1946.
Leaves of Absence
An employee who expects to be away for more than five consecutive working days,
but who does not want to quit, must file an application with the factory superintendent
for a Leave of Absence . Copy of such application is attached . If, on account of ill-
ness, you cannot file this application yourself, a friend can do it for you.
An employee who has been absent for five consecutive working days and has not
received a Leave of Absence will be dropped from the payroll.
SALANT & SALANT, INC.,
By Il . B. BAGWELL, Supt.
74 There is no support in the record for the Trial Examiner's finding that "the same
treatment was accorded other employees who extended their leave."
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activity and the Respondent's continuing policy of discouraging
C. I. O. activity.75 Accordingly we find that by failing to reinstate
Lewis on November 25, 1946, after her 2 weeks' absence, the Respond-
ent discriminated in regard to the hire or tenure of her employment
in violation of Section 8 (a) (3) of the Act, thus violating Section
8 (a) (1) of the Act.
6. Bettie Lou Grissom
The complaint alleges that this employee was discriminatorily dis-
charged on or about September 10, 1946. The Respondent avers in
its answer that Grissom was discharged for cause on that date.
Grissom's separation slip said "failure to produce required produc-
tion after extended training period." As to her union activity, she
testified that White gave her a C. I. O. card during a rest period when
Supervisor Horn was standing several feet away, that she joined the
Union, wore her button from August 1 on, and attended most of the
meetings until her discharge on September 10.
Grissom was employed in 1944 as a learner on sleeve facing. She
conceded that after 24 weeks' employment an operator is supposed to
be experienced, but that she never made the quota on sleeve facing
after completing the training period. She also did collar point trim
(a scissors job), at which she testified that she sometimes made the
quota. Quality Supervisor Head transferred her to collar point trim
several times but Horn, her foreman until shortly before her discharge,
told her they needed her on sleeve facing and retransferred her over
her protest. In explanation of her failure to make production on
sleeve facing, Grissom said the machine she worked on for her last year
at the plant was worn out.
Plant Superintendent Giles identified Respondent's file styled
"Piece Workers, June 1, 1946," from which and from similar files
dated subsequently, he read Grissom's production record from June 1
to the date of her discharge. He also read the records of. other Sleeve
facers, as well as the amounts paid Grisson in adjustment of the
difference between what she earned on a piecework basis and what she
was guaranteed. Most of the sleeve facers did between 90 and 100
dozen per day and one as much as 115, whereas Grissom did as many
as 55 and 60 dozen only occasionally. The production quota on flannel
shirts seems to have been 69 dozen a. day, although Grissom testified
that Horn told her it was 891/2.
Concerning Grissom's machine, Ernest Scates testified that all the
machines were in bad condition although one or two seemed better than
Grissom's; Ollie Scates testified that Grissom's machine was the
71 See footnote 67 above.
SALANT & SALANT, INCORPORATED 375
"sorriest" one:.-in the building and beyond his ability to fix, and that
Ray Richardson, who had become Grissom's foreman at the end of
August, had observed that it didn't seem to run as fast as the others.
Although it appears likely that Grissom was handicapped by the
machine she worked on, it is doubtful from the record that the ma-
chines of other operators were sufficiently superior to explain, alone,
Grissom's consistent failure to make production. As Grissom ad-
mitted that she failed to make the production quota and that Horn
had spoken with her "once or twice" about the matter, we find the
evidence insufficient to show that Grissom was discriminated against.
Accordingly, we shall grant the Respondent's motion to dismiss the
8 (a) (3) allegation of the complaint as to Grissom.
7. James Garvey
The complaint alleges that Garvey, a foreman , was discriminatorily
discharged on or about October 8, 1946, in violation of Section 8. (1).
and (3) of the Act.76 In its answer, the Respondent alleges that
Garvey was laid off for lack of work.77
Garvey had been employed at the Lexington plant for 14 years.
He became foreman of the cutting room in 1934 or 1935, and served in
that capacity until October 1946 when he was laid off.
Due to a shortage of materials, the plant was operating only about
3 days per week in October 1946. There were layoffs in several de-
partments, including the cutting department. On October 11, as
Garvey was preparing layoff notices for several of his subordinates,
Bagwell told him that he, too, was to be laid off, stating, "You can
tell them you're getting yours too. I got a letter from New York to
76 At the hearing , at the close of the General Counsel ' s case, the Respondent moved to
dismiss the complaint as to Garvey. In their argument on this motion , both counsel for
the Respondent and counsel for the General Counsel exhibited some confusion as to the
legal theory upon which it was charged that the Respondent violated the Act in ter-
minating Garvey's employment . Both counsel seemed to assume that, to establish a
violation , it must appear that Garvey was discharged for engaging , himself, in union
or concerted activity or for union membership . This was a mistaken assumption. The
real issue as to Garvey is whether or not he was discharged for refusing to cooperate
with the Respondent in restraining or interfering with the union activity of subordinate
employees . See Richter's Bakery, 46 NLRB 447, 450 , enforced in N. L . R. B. v. Richter's
Bakery, 140 F . 2d 870 (C. A. 5), cert. denied , 322 U. S. 754. However, despite the
confusion of counsel as to this. point , the Trial Examiner correctly overruled the motion
to dismiss , and the question of why Garvey was discharged was fully litigated.
77 In itsanswer and its motion .to dismiss the complaint , the Respondent also contended
that Garvey 's status as a supervisor removed him from the Act's protection after the-
1947 amendments . This contention is without merit insofar as our findings and order
in'this case*are concerned. N. L. R. B . v. Budd Mfg . Co., 332 U. S . 840, Thirteenth Annual
Report ( 1948 ), p. 76; Eastern Coal Corp . v. N. L. R. B., 176 F. 2d 131 ( C. A. 4) affirming
79 NLRB 1165 ; N. L. R. B . v. Norfolk Shipbuilding & Drydock Corp ., 172 F. 2d 813
(C. A. 4) enforcing 70 NLRB 391 . Moreover, as we held in Inter -City Advertising Company
of Greensboro , N. C., Inc., 89 NLRB 1103, the Act , since amendment , still contemplates
the reinstatement with back pay of supervisors where their discharge "constitutes an
invasion of the rights guaranteed to nonsupervisory employees."
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lay you off." No' other supervisor was laid off . A few weeks later,
Arthur Lipshie, the Respondent's production manager from New
York, told Garvey that he himself did not know the reason for Gar-
vey's layoff, as the order had come from "higher up." 78
Garvey's termination notice stated that he was "temporarily laid
off," and Bagwell told Garvey on October 11 that the layoff might be
for only a few weeks-or from 4 to 6 months. In fact, although the
plant was not operated at full capacity during the first half of 1947,
Garvey's position in the cutting room was filled within a few months
after the October layoff. One Ray Richardson, a foreman in the
sewing room who was first advanced to supervisory rank in August
1946, was transferred to the cutting department and after a period
of training, formally appointed to Garvey's old job on or before March
10, 1947.79 Garvey, however, was never recalled to his old position,80
although, as we have found in another connection, it was the Respond-
ent's policy to recall its employees after "temporary" layoffs.81 More-
over, as Bagwell stated in a letter of recommendation dated October
28, 1946, Garvey was "a very capable cutting room man."
Material shortages and a reduced volume of orders and production
during the first half of 1947 were the only factors cited by the Re-
spondent to explain the termination of Garvey's employment. These
economic conditions, however, do not adequately explain why Garvey
was the only foreman in the plant to be laid off, and why the order as
to him should have come from a "higher up" in the Respondent's New
York office. Furthermore, these business reasons patently do not ac-
count for the Respondent's failure to recall a foreman of Garvey's
experience and long record of service at the time when it trained an
78 Neither Bagwell nor Lipshie testified at the hearing . However , Robert Salant and
Superintendent Giles, who did testify , presumably had access to the Respondent's cor-
respondence files and other 1946 records and might have refuted the evidence that Garvey's'
layoff had been ordered by a "higher up" in the New York office . Neither of these
witnesses was interrogated as to this subject.
7e The Respondent offered in evidence an unsigned copy of an advancement slip purport-
ing to show that Ray Richardson was advanced from foreman of the sewing room to fore-
man of the cutting room on March 10, 1947. This document was rejected for lack of proper
authentication. However, we regard the Respondent's offer of proof as an admission that
Garvey 's position was filled no later than March 10 , 1947. Garvey testified , without con-
tradiction, that Bagwell, an old cutting-room man, "looked after" the cutting room for
about 2 weeks after the October layoff , and then a man was brought in from the Parsons
plant to train Richardson for about a month . We find the evidence inconclusive as to the,
exact date when Garvey was replaced by Richardson or some other person. This date,
which can be ascertained in compliance proceedings, was no later than March 10, 1947,-and
may have been considerably earlier.
8° In April 1948, Garvey, like Bell, Lewis, Derryberry, and Gurley, was notified through
the Tennessee Dept. of Employment Security that work was available at the plant. He was
then working elsewhere , and declined Superintendent Giles' offer of a nonsupervisory posi-
tion in the cutting room.
81 The Trial Examiner ' s finding that the Respondent has no policy of recalling employees
temporarily laid off. ignores the testimony of Robert Salant and Giles to the contrary.
See footnote 54, above.
SALANT & SALANT, INCORPORATED 377
inexperienced supervisor to take his place. In these circumstances, we
are convinced that the real reason for the Respondent's treatment of
Garvey was the fact that Garvey was the only supervisor at the Lexing-
ton plant who refused to cooperate in the Respondent's program of un-
lawful interference with the organizational freedom of its employees. 2
Garvey testified to three conversations with Hal Mi]am, foreman of
the department next to the cutting room, in which Milam suggested
that Garvey "line up" his subordinates for the A. F. L. and "get on the
right side" himself. According to Garvey, he declared to Milam that
he was "all through," and would not solicit his subordinates, where-
upon, on one occasion, Milam called him a "damn CIO.." Garvey also
testified that he reported this last conversation to Bagwell, whose
comment was noncommittal. Bagwell did not testify. Milam denied
the conversations with Garvey. We credit Garvey.83 We believe that
Garvey's "temporary" layoff was actually •a discharge because of
Garvey's refusal to "line up" his subordinates and otherwise assist in
the Respondent's effort to defeat the C. I. O. in the election campaign.
We find that the Respondent discriminated ' against Garvey for this
reason by terminating his employment on October 11, 1946, thereby
discouraging membership in a labor organization within the meaning
of Section 8 (3) of the original Act, and engaging in interference,
restraint, and coercion in violation of Section 8 (1) of the original
Act and Section 8 (a) (1) of the amended Act.84
IV. THE EFFECT OF TIIE 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 this Decision, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States, and tend to lead
82 Odle, Armstrong , Milam , Head, Garner , Melton , Horn , and Lancaster all assisted in
the Respondent 's program of interference . The only other supervisors , so far as the record
shows, were Garvey and Richardson ( whose promotion to a supervisory position occurred
after the union campaigns were underway).
83 The Trial Examiner , without noting certain circumstantial corroboration of Garvey's
testimony, held that Milam was a thoroughly reliable witness and that Garvey's testimony
was "false" and "concocted ." On the entire record in this case , we are constrained to
reverse the Trial Examiner's finding as to credibility in this instance , as in many others.
Garvey was hazy as to dates, but there is nothing improbable about his testimony as a
whole, and he was unshaken on cross-examination . If he had been prone to invent, lie
certainly had ample opportunity , on the stand, to "concoct " a much more colorful story
than the one he actually told . Certain of the details which he narrated as to transac-
tions involving Milam were corroborated.
On the other hand, Milam , who had been employed at the Lexington plant since 1932
after his graduation from high school and had apparently grown up in the small com-
munity of Lexington , offered certain incredible testimony such as not having any idea
how many employees the plant had or knowing how any of the employees felt about the
Union . He does not impress its as a trustworthy witness.
"Richter's Bakery, footnote 76, above; Inter- City Advertising Company of Greensboro,
N. C., Inc., footnote 77, above.
929979-51-vol. 92-26
X78, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to labor disputes burdening and obstructing commerce and the free
slow thereof.
V. THE REMEDY
We have found that the Respondent has interfered with, restrained,
and coerced its employees in violation of Section 8 (a) (1) of the Act,
has assisted the A. F. L. in violation of Section 8 (a) (2) of the Act,
and has engaged in other acts in violation of Section 8 (a) (1), 8 (3)
and 8 (a) (3) of the Act. We shall order the Respondent to cease and
desist from engaging in such conduct. In our opinion the Respond-
ent's conduct discloses a fixed purpose to defeat self-organization and
its objectives. Because of the Respondent's unlawful conduct and its
rlnderlying purpose we are convinced that the unfair labor practices
found are' persuasively related to the other unfair labor practices pro-
scribed by the Act and that the danger of their commission in the
future is to be anticipated from the course of the Respondent's conduct
in the past. The preventive purpose of the Act will be thwarted un-
less our Order is coextensive with the threat. In order, therefore, to
make effective the interdependent guarantees of Section 7, to prevent
a recurrence of unfair labor practices, and to minimize strife which
burdens and obstructs commerce, and thus to effectuate the policies of
the Act, we will order that the Respondent cease and desist from in-
fringing in any manner upon the rights guaranteed by Section 7 of the
Act as amended.
We shall order the Respondent to offer Exie Dyer, Irene Derry-
berry, Annie Bell, Theoda Gurley, Bertha Lewis, and James Garvey.
reinstatement 88 with back pay 8s from the date of Respondent's dis-
crimination against them. In accordance with our usual practice the
period from the date of the Intermediate Report herein to the date of
this Decision and Order will be excluded in computing the amounts
of back pay, as the Trial Examiner did not recommend reinstatement
or awards of back pay. With respect to computation of- back pay we
have recently adopted a new policy 87 consistent with which we shall
order that the loss of pay in each instance be computed on the basis
of each separate calendar quarter or portion thereof during the period
from the Respondent's discriminatory, action to the date of a proper
e5 The reemployment of Bertha Lewis in April 1948, at a beginner' s rate of pay, we find
did not fulfill, the Respondent' s remedial obligation to restore her to her former or a
substantially equivalent position . See Pacific Powder Company , 84 NLRB 280. There-
fore , as to her, reinstatement shall mean reinstatement without discriminatory conditions,
and her back pay shall be computed not only for the period from November 25, 1946, to
the date in April 1948 when she was reemployed, but shall also include additional pay
by reason of the difference in the rate of pay guaranteed her prior to November 25, 1946,
and the rate of pay which has been guaranteed her since her reemployment.
86 As to Bell and Gurley, see footnotes 56 and 62 above.
F. IV. Woolworth Company, 90 NLRB 289.
SALANT & SALANT, INCORPORATED 379
offer of reinstatement. 88 The quarterly periods, hereinafter called
"quarters," shall begin with the first day of January, April, July,
and October. Loss of pay shall be determined by deducting from a
sum equal to that which these employees would normally have earned
for each quarter or portion thereof, their net earnings,89 if any, in
other employment during that period 90 Earnings in one particular
quarter shall have no effect upon the back-pay liability for any other
quarter.
We shall also order the Respondent to make available to the Board
upon request payroll and other records to facilitate the checking of
the amount of back pay due.91
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS or LAW
1. The Amalgamated Clothing' Workers of America, C. I. O. and
the United Garment Workers of America, A. F. L., are labor organi-
zations within the meaning of Section 2 (5) of the Act, as amended.
2. By interrogating employees about their union activity, by threat-
ening them with economic reprisals because of their interest in the
C. I. 0., by declaring that it would never deal with the C. I. 0., by
promising a wage increase during the union organizational campaigns,
and by engaging in surveillance of the employees' concerted activities,
the Respondent has interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed them in Section 7 of
the Act, and has thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
9 The Respondent does not contend that its notice through the State unemployment
office in April 1948, to five of these employees , that it had "work open" constituted a
proper offer of reinstatement to their former or substantially equivalent position. See
N. L. R. B. v. Electric City Dyeing Co., 178 F. 2d 980, 983 (C. A. 3). Nor does Bertha
Lewis' acceptance of work at that time at a beginner 's rate of pay (which rate, according
to the testimony of Plant Superintendent Giles, all such employees except Garvey would
have been offered had they responded) preclude her recovering whatever loss she has since
incurred by reason of the beginner's lower guaranty.
89 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where, which would not have been incurred but for this unlawful discrimination, and
the consequent necessity for his seeking employment elsewhere . Crossett Lumber Com-
pany, 8 NLRB 660. Monies received for work performed upon Federal , State, county,
municipal , or other wc•rk-relief projects shall be considered earnings . Republic Steel
Corporation v. N. L. R. B., 311 U. S. 7.
"As to Bertha •Lewi, the additional back pay to which she may be entitled for the
period of her reemployment beginning in April 1948 shall be determined by deducting
her earnings since her reemployment by the Respondent and up to the time restitution
is made to her from a sum equal to that which she normally would have earned for each
quarter or portion thereof based on the hourly wage guaranteed her prior to November 25,
1946.
" P. W. Woolworth Company, 90 NLRB 289.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By expressing preference for the A. F. L. in conjunction with
threats of economic reprisal or declarations that the Respondent would
not deal with the C. I. 0., by enlisting or attempting to enlist the aid
of its employees in securing A. F. L. members, and by restricting
C. I. O. solicitation during working hours while permitting A. F. L.
solicitation, the Respondent has given assistance to the A. F. L. and
thereby has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (2) of the Act.
4. By discriminating in regard to the hire or tenure of employment
of Irene Derryberry, Exie Dyer, Theoda Gurley, Annie Bell, and
Bertha Lewis, thereby discouraging membership in the C. I. 0.; the
Respondent has engaged in and is engaging in unf air labor practices
within the meaning of Section 8 (a) (3) of the Act.
5. By discriminating in regard to the hire or tenure of employment
of James Garvey, for his refusal to cooperate with the Respondent in
restraining or interfering with the union activity of subordinate em-
ployees, thereby discouraging membership in the C. I. O., the Respond-
ent has engaged in and isengagiug in unfair labor practices within the
meaning of Section 8 (3) of the Act.92
6. By the aforesaid discriminations, including the discharge of
James Garvey, and by the aforesaid acts of assistance to the A. F. L.,
the Respondent has interfered with, restrained, and coerced its em-
ployees in the exercise of rights guaranteed them in Section 7 of the
Act and thereby has engaged in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
8. Respondent has not engaged in any unfair labor practice with
regard to the discharge of Bettie Lou Grissom.
ORDER
Upon the basis of the above findings of fact and 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, Lexington,
Tennessee, and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Interrogating its employees concerning their interest in or
adherence to Amalgamated Clothing Workers of America, C. I. 0., or
92 To the extent that Paragraph xI of the complaint may be construed as alleging as
to Garvey the violation by Respondent of Section 8 (a) (3) of the amended Act, it is
hereby dismissed.
SALANT & SALANT, INCORPORATED 381
any other labor organization; or threatening its employees with eco-,
nomic reprisal for such adherence; or announcing, promising, or
granting wage increases or other employee benefits to discourage such
adherence; or declaring that it will not deal with the Amalgamated
Clothing Workers of America, C. I. 0., or with any other labor
organization which may be freely selected as the bargaining agent of
its employees; or engaging in surveillance of any union activities
.of its employees;
(b) Assisting the United Garment Workers of America, A. F. L.,
or any other labor organization, in organizational activities among
the Respondent employees;
(c) Discouraging membership in Amalgamated Clothing Workers
of America, C. I. 0., or any other labor organization of its employees,
by discharging any of its employees or discriminating in any other
manner in regard to their hire or tenure of employment, or any term
or condition of their employment, or by discharging or refusing to
reinstate any of its supervisors for failure to cooperate with the Re-
spondent in restraining or interfering with the union activity of sub-
ordinate employees ;
(d) In any other manner interfering with, restraining, or coerc-
ing its employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist Amalgamated Clothing
Workers of America, C. I. 0., or any other labor organization, to
bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, as guaranteed in
Section 7 of the Act, and 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 em-
ployment 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) Offer to Annie Bell, Theoda Gurley, Irene Derryberry, Exie
Dyer, and Bertha Lewis immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to their
:seniority or other rights and privileges, and make them whole in the
manner set forth in the section entitled "The Remedy" for any loss of
pay they may have suffered by reason of the Respondent's discrimina-
tion against them ;
(b) Offer James Garvey immediate and full reinstatement to his
former position as foreman of the cutting room, or to a substantially
.equivalent position, without prejudice to his seniority or other rights
and privileges, and make him whole in the manner set forth in the sec-
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion entitled "The Remedy" for any loss of pay he may have suffered
by reason of the Respondent 's discrimination against him;
(c) Upon request , make available to the Board or its agents, for
examination and copying, all payroll records, social security payment
records, time cards , personnel records and reports , and all other rec-
ords necessary to analyze the amounts of back pay due and the right
of reinstatement under the terms of this Order;
(d) Post in conspicuous places in the Respondent 's Lexington,
Tennessee , plant, copies of the notice attached hereto , marked "Ap-
pendix A." 93 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 be maintained by it for at least 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;
(e) Notify the Regional Director for the Fifteenth Region in writ-
ing, within ten (10 ) days from the date of this Order , what steps the
Respondent has taken to comply herewith..
IT IS FURTHER ORDERED that the complaint , insofar as it alleges that
the Respondent discriminatorily discharged Bettie Lou Grissom in
violation of Section^8 ( 3) and 8 ( a) (3) of the Act, be, and it hereby is,
dismissed.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Board,
and in order to effectuate the policies of the National Labor Relations
Act, we hereby notify our employees that :
WE WILL NOT-tiestion our employees concerning their member-
ship in and activities on behalf of the AMALGAMATED CLOTHING
WORKERS OF AMERICA, C. I. 0., or any other labor organization.
WE WILL NOT threaten our employees with loss of wage in-
creases or loss of employment if they become or remain members
of the AMALGAMATED CLOTHING WORKERS OF AMERICA, C. I. 0., or
any other labor organization, or engage in concerted activity.
WE WILL NOT threaten to close or move our Lexington plant or
to cut back its production in order to discourage membership
ea In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted before the words : "A Decision and Order ," the words : "A Decree
of the United States Court of Appeals Enforcing."
SALANT & SALANT, INCORPORATED 383
in the AMALGAMATED CLOTHING WORKERS OF AMERICA, C. I. 0., or
any other labor organization freely selected by our employees as.
their bargaining agent.
WE WILL NOT spread or allow our supervisors to spread rumors.
that we will not deal with the AMALGAMATED CLOTHING WORKERS
OF AMERICA, C. I. 0., or any other labor organization freely
selected by our employees as their bargaining agent.
WE WILL NOT assist the UNITED GARMENT WORKERS OF AMERICA,.
A. F. L., by encouraging or coercing our employees to become or
remain members of that labor organization or to designate that.
labor organization as their exclusive representative for purposes.
of collective bargaining.
WE WILL NOT interfere with, restrain, or coerce our employees
by announcing, promising, or granting wage increases or other
employee benefits, by keeping under surveillance the concerted
activity of our employees, or by requiring our supervisors to re-
strain or interfere with the union activity of employees.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form labor organizations, to join or assist AMALGAMATED
CLOTHING WORKERS OF AMERICA, C. I. 0., or any other labor organi-
zation, to bargain collectively through representatives of their
own choosing, and to engage in other 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 National Labor Relations
Act.
WE WILL OFFER to the individuals named below immediate and
full reinstatement to their former or substantially equivalent.
positions without prejudice to any seniority or other rights and.
privileges previously enjoyed, and make them whole for any loss
of pay suffered as a result of our unlawful conduct :
Irene Derryberry Annie Bell
Exie Dyer Bertha Lewis
Theoda Gurley James Garvey
All our employees are free to become or remain members of the'
AMALGAMATED CLOTHING WORKERS OF AMERICA, C. I. 0., or any other
labor organization, or to refrain from so doing,'except to the extent
that this right may be affected by an agreement in conformity with
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8 (a) (3) of the amended Act. We will not discriminate in
regard to hire or tenure of employment or any term or' condition of
employment against any employee because of membership in or activ-
ity on behalf of any such labor organization.
SALANT & SALANT, INC.,
Employer.
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.