Sellers Manufacturing Co.

National Labor Relations Board - Board Decisions

Nov 28, 1950

92 N.L.R.B. 279 (N.L.R.B. 1950)

In the Matter of SELLERS MANUFACTURING COMPANY and TEXTILE
WORKERS UNION OF AMERICA, C. I. O.
Case No. 34-CA-111.-Decided November 08, 1950
DECISION AND ORDER
On August 25, 1950, Trial Examiner Robert E. Mullin issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed ex-
ceptions to the Intermediate Report and a supporting brief.,
The Board 2 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief; and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.3
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Sellers Manii-
facturing Company, Saxapahaw, North Carolina, its officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Textile Workers Union of Amer-
ica, C. I. 0., or in any other labor organization of its employees, by
I The Respondent's request * for oral argument is hereby denied, as the exceptions and
brief, in our opinion, adequately present the positions of the parties.
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Chairman Herzog and Members Houston and Reynolds].
s We do not pass upon Ellington 's alleged supervisory status as it is immaterial to the
unfair labor practices found.
Contrary to the Trial Examiner 's report, the record shows, and we find, that the
Respondent was aware , before it discharged the Carricos , of Ralph Carrico 's arrest arising
out of the Graham incident. Our finding in this respect does not alter our ultimate con-
clusion of discriminatory discharge.
92 NLRB No. 73.
279
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharging or refusing to reinstate any of them because they have
become members of, or have been active in behalf of, any labor organ-
ization, or by discriminating in any other manner with regard to their
hire or tenure of employment, or any other term or condition of
employment;
(b) Interrogating its employees concerning their membership in or
activity on behalf of any labor organization, or in any other manner
interfering with, restraining, or coercing its employees in the exer-
cise of their right to self-organization, to form labor organizations, to
join or assist Textile Workers Union of America, C. I. 0., or any other
labor organization, to bargain collectively through representatives of
their own choosing, to engage_ in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, and to re-
frain from any or all such activities, except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Ralph Carrico immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him whole in the
manner set forth in the section of the Intermediate Report entitled
"The remedy" for any loss of pay he may have suffered by reason of
the Respondent's discrimination against him;
(b) Offer to Ralph Carrico immediate occupancy of his former or
substantially equivalent living quarters in a company-owned house, if
available, and if not immediately available, then as soon as vacancies
occur;
(c) Make whole Ralph Carrico for any loss he may have suffered by
reason of the Respondent's eviction of him from his living quarters, by
payment to him of a sum of money equal to that which he has had to
pay as rental for a new dwelling from the date of said eviction to the
date he is offered occupancy of a company-owned house in the manner
set forth in paragraph 2 (b) above, plus such additional expenses as
he may have incurred during said period as a direct result of his evic-
tion, but less the amount he would normally have paid as rent for his
company-owned home during said period;
(d) Make whole Pearl Carrico in the manner set forth in the section
of the Intermediate Report entitled "The remedy" for any loss of pay
she may have suffered by reason of the Respondent's discrimination
against her;
SELLERS MANUFACTURING COMPANY 281
(e) 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;
(f) Post at its Saxapahaw, North Carolina, mill, copies of the,
notice attached to the Intermediate Report marked Appendix A.4,
Copies of, said notice, to be furnished to the Respondent by the Re-
gional Director for the Fifth Region, shall, after being duly signed by
the Respondent, be posted by it immediately upon receipt thereof, and.
be maintained by it for sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material;
(g) Notify the Regional Director for the Fifth Region, in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Mr. Harold G. Biermann, for the General Counsel.
Mr. Kenneth M. Brim, of Brooks , McLendon , Brim d Holderness, of Greens-
boro, N. C., for the Respondent.
Mr. Dean L. Culver, of Concord, N. C., for the Union.
STATEMENT OF THE CASE
Upon a charge duly filed February 28, 1949, by the Textile Workers Union
of America, C. I. 0., herein called the Union, the General Counsel of the National
Labor Relations Board,' by the Regional Director for the Fifth Region ( Balti-
more, Maryland ), issued his complaint , dated March 30, 1950, against Sellers
Manufacturing Company, herein called the Respondent , alleging that the Re-
spondent had engaged and was engaging in unfair labor practices within the
meaning of Section 8 ( a) (1) and ( 3), and Section 2 (6) and ( 7) of the Na-
tional Labor Relations Act, as amended , 61 Stat. 136 , herein called the Act.
Copies of the original charge, the complaint , and notices of hearing thereon
were duly served upon the Respondent and the Union.
With respect to the unfair labor practices , the complaint alleged in sub-
stance: (1) that the Respondent, on or about February 11, 1949, discharged
Ralph and Pearl Carrico, employees , evicted them from a house owned by the
Respondent , and has since refused to reinstate them to their former positions,
4 This notice , however, shall be, and it hereby is, amended by striking from line 3
thereof the words "The recommendations of a Trial Examiner" and substituting in lieu
thereof the words "A Decision and Order ." In the event that this order is enforced by
a 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."
I The General Counsel and the attorney representing him at the hearing are referred
to herein as the General Counsel; the National Labor Relations Board as the Board.
929979-51-vol. 92-20
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the reason that they had joined or assisted the Union; and (2) that the
Respondent has since about February 11, 1949, interfered with, restrained, and
coerced its employees by interrogating them as to their union affiliations, by
threatening its employees in order to discourage them from becoming union
members and by denying to employees the privilege of occupying company-
owned houses because of union activities. In its answer the Respondent admitted
certain facts with respect to its business operations and that it bad discharged
the employees named in the complaint but it denied all allegations that it had
committed any unfair labor practices. The Respondent further averred therein
that the Carricos had been discharged for having engaged in an all-night brawl
in a company-owned house on February 5 and 6, 1949.
Prior to the hearing, a motion for bill of particulars made by the Respondent
was referred to Trial Examiner John Lewis for disposition. By order, dated
April 11, 1950, Trial Examiner Lewis granted, in part, Respondent's motion and
directed the General Counsel to furnish the Respondent with further informa-
tion as to certain allegations in the complaint.
Pursuant to notice, a hearing was held on June 12 to 15, 1950, inclusive, at
Graham, North Carolina, before Robert E. Mullin, the undersigned Trial Exam-
iner duly designated by the Chief Trial Examiner. The General Counsel and the
Respondent were represented by counsel and the Union by an authorized repre-
sentative. All parties were afforded opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the issues.
Immediately before the hearing opened Respondent filed with the Trial Ex-
aminer an amended answer "in which it alleged that the Board was without
jurisdiction in the case on the ground that at the time the charge was filed on
February 28, 1949, the Congress of Industrial Organizations, herein called
C. I. 0., was not in compliance with Section 9 (f), (g), and (h) of the Act.
At the close of the General Counsel's case-in-chief, the Respondent moved to
dismiss the complaint on this ground and for lack of evidence. The motion was
denied. A subsequent motion made by the Respondent to amend its answer was
granted. At the close of the hearing the Respondent renewed its motion to dis-
miss based on the noncompliance status of the C. I. O. This was again denied.'
Respondent's motion to dismiss the complaint for failure of proof, made at the
same time, was taken under advisement. It is disposed of in the manner indi-
cated in the body of this Report. Opportunity was afforded all parties to argue
the issues orally upon the record and to file briefs. Argument was had by
counsel for both the Respondent and the General Counsel. On July 21, 1950, a
brief was received from the Respondent which has been carefully considered by
the undersigned.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
2 The amended answer was marked for identification by the General Counsel and
received in evidence as part of General Counsel's Exhibit No. 1.
3 The parties stipulated that on December 22, 1949, the C. I. 0. complied with Section 9
(f), (g), and (h) of the Act. Since the complaint in this case was not issued until
March 30, 1950 , and also because the charge originally filed does not seek, and cannot
result in , a bargaining order which would benefit a noncomplying labor organization, it
does not appear that even under the decision in N. L. R. B. v. Poster Cotton Mills, Inc.,
181 F. 2d 919 (C. A. 5). on which the Respondent relies, the Board is under any disability
to process the complaint herein. In any event, in view of the Board's decision in
Bethlehem Steel Company , Shipbuilding Division , and Bethlehem Sparrows Point Shipyard,
Inc., 89 NLRB 341, the Respondent's argument must be rejected. See also : J. H. Rutter-
Rex Manufacturing Company, Inc ., 90 NLRB 130 ;, The Post Printing and Publishing Com-
pany, 90 NLRB 1820. .
SELLERS MANUFACTURING COMPANY 283
FINDINGS OF FACT
1. BUSINESS OF THE RESPONDENT
Respondent is a North Carolina corporation engaged in the manufacture of
cotton yarns and in the processing of synthetic yarns with its only plant and
office located in Saxapahaw, North Carolina. During the year 1949 it purchased
raw cotton valued at over $600,000, of which -approximately 25 percent was
received from outside the State of North Carolina. During the same period it
produced cotton yarn valued at over $600,000, of which from 25 to 40 percent
was sold and shipped to buyers located outside the State of North Carolina.
Respondent concedes, and the undersigned finds, that the Respondent is engaged
in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Textile Workers Union of America, C. I. 0., is a labor organization admitting
to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events
In December 1948y the Union began an organizational campaign at the
Respondent's plant which lasted until February 1949.4 No request for recog-
nition was made of the-Company during that period, or later, and Culver, union
representative at the hearing, testified that an organizer is no longer assigned
to the Respondent 's plant.
In January 1949, Roland C. Kale, then an employee of the Respondent, joined
the Union and on January 27, he, in turn, persuaded Ralph and Pearl Carrico,
-two employees who were husband and wife, to join.
Early in February, Kale gave Mrs. Carrico some union literature for distri-
bution to her fellow employees. Thereafter, while at work in the plant, Mrs.
-Carrico showed the literature to Fonnie George and Octavia Welcher, spinning
room employees, and asked them whether they cared to become members. George
told her that she knew nothing about the Union and Welcher stated that she
could not read. Mrs. Carrico then offered to read the material to them later
but such an opportunity never arrived. Welcher testified that sometime later that
day she asked Section. Man Thomas R. Ellington 6 if he had seen the papers
Mrs. Carrico was handing out and that when Ellington asked "what kind of
4 All events referred to herein occurred during the year 1949 unless otherwise specified.
Respondent denied that Ellington had supervisory status. Frank Longcrier, vice
president of the Company , testified that a section man has supervisory duties "only very
'indirectly , in a very small way," and that he has the authority and the duty of making
recommendations as to the hiring and discharge of employees "only indirectly, if his
-opinion were asked." He also testified , in describing the supervisory hierarchy in the
-mill in descending order , that "under the overseers " are the section men "who are respon-
sible to the overseers , and then the employees ." ' Although Ellington disclaimed any
:authority to hire or fire or even recommend such action , he conceded that on one occasion
he had recommended that an employee be discharged . Ellington did not testify as to
his pay scale , - but another section man , Edward M. Neal , who described his job as being
the same as. that of Ellington , testified that he was paid more than the rank-and-file
employees . Mrs. Carrico testified that in the event of a machinery breakdown Ellington
"would take us. and put us on other work," and Ellington himself testified that when
employees in the . section wanted to get off they customarily came to him. On these
facts, the undersigned . concludes and finds that Ellington was a supervisory employee
within the meaning of the Act.
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
papers?" she told him, "Well , she handed me some papers and asked me did I.
want to join the union ." George testified that although she told no one that.
Mrs. Carrico had also offered her some literature , Ellington had subsequently
questioned her about the occasion.
The following day Ellington . told Mrs. Carrico to report to the office of J. R.
Richie, superintendent of the cotton mill. Welcher and George were likewise
ordered into Richie's office . According to Mrs . Carrico, Richie then asked her
if she was " trying to get the workers to join the union or if I was a union mem-
ber." She replied in the affirmative . Richie then asked if she was handing out
union literature . When she admitted that to be the case, he asked where she
had obtained it. She told him Roland Kale. Richie then stated that it was
against the law to distribute union literature in the mill , and that she should
not do it qgain. He added , however, that if she wanted to hand it out beyond
the plant gate there was nothing he could do about that e
On returning to her job in the spinning room Mrs. Carrico met Ellington, and
remarked to him, with reference to her work , "You know I am proud of these
sides." Ellington replied, "Pearl , if I were in your place I would not be too
proud of those sides." 7
The following day Superintendent Richie summoned Kale to his office. There
Richie asked him whether he, too, had been distributing union literature in the
mill. In admitting that he had , Kale volunteered the information that he was
a union member . Richie then asked, "Don 't you know it is against the law to
give out stuff like that in the mill ?" When Kale replied in the negative, Richie
stated that he would not argue whether it was against the law, but that at any
rate it was against the Company's rules. Kale then assured him that he would.
abide by the rules and Richie told him that he did not care whether Kale dis-
tributed the literature outside the fence. In concluding the conversation , Richie-
told Kale that "he knew all who were in the Union , that he knew the ring:
leaders" and that they "could not hide anything." 8
6 The findings in this paragraph are based in large part upon the credited testimony
of Mrs. Carrico who impressed the undersigned as a frank and truthful witness. There
was a sharp conflict as to what was said by the principals to this conversation . Richie
denied that he used the word "union" at any time during the course of it. Whereas
Ellington and George corroborated Richie in this regard, Ellington went on to state that
Mrs. Carrico herself had volunteered the information that she was a union member.
Welcher was not asked about this phase of the conversation . All three of these last:
named witnesses testified that Richie had told Mrs . Carrico that it was against "the'
rule" to give out literature in the mill . Richie testified that at the outset of the conversa
tion he had asked Mrs. Carrico whether she had given out literature to the spinners;
and when she at first denied it George interrupted the conversation to state that Mrs.
Carrico had done so. George , when testifying on direct examination , however, had another
version and testified that Mrs. Carrico did not deny having handed out any literature.
Welcher on the other hand testified that she had . Ellington did not testify with respect
to this phase of the conversation . Although both George and Welcher testified that Richie
did not ask Mrs. Carrico where she had obtained the literature , Richie himself testified
that he asked her this question . He further stated that he could not recall whether
she had answered it and then added, "It seems like I had to find that information out
from someone else ." From his observation of the witnesses and an examination of the
testimony , the undersigned accepts the testimony of Mrs. Carrico as being the more
credible account of the conversation between her and Richie on that day . He so finds.
7 The findings in this paragraph are based upon the credited testimony of Mrs. Carrico
which in this connection is uncontradicted.
8 The findings in this paragraph are based upon the credited testimony of Kale. Richie's
testimony corroborated that of Kale as to most of the conversation except that he denied
making any reference to the Union. The undersigned does not credit this denial.
SELLERS MANUFACTURING COMPANY 285
On the morning of February 11, Superintendent Richie notified the Carricos
to report in his office at 2 o'clock that afternoon. Only Ralph Carrico arrived
at the appointed hour, explaining as he, did so that his wife was getting ready
for the 3 p. in. shift and that he would answer for her as well as himself.
There was no material conflict in the testimony of Carrico and Richie as to their
conversation at this meeting. According to Carrico, as he went into the super-
intendent's office, Richie handed him a discharge notice, commenting as he did
so, "Mr . Carrico, I don't like to do it; there is nothing wrong with your work
and there is nothing wrong with your wife's work, but I will have to let you go."
When Carrico asked the reason for this action, Richie told him, "It is on the
paper [referring to the notice of discharge] ; there was a disturbance." Richie
testified that he told Carrico "that we would have to let him go due to the
disturbance they had in the community over the week-end of the 5th and 6th"
and when Carrico asked "what disturbance?" that he told him, "The brawl that
took place in your house." Richie then terminated the conversation and Carrico
left the office.
The layoff notice which Carrico received gave as the cause of discharge "For
having a disturbance in Company's house on February 5th & 6th." Ralph
Carrico never returned to see Richie but the following Monday his wife did.
Mrs. Carrico testified that she went to protest that there had been no disturbance
at her house and to ask that Richie change the statement contained on her
notice of discharges When Richie refused to do so, Mrs. Carrico asked that
he tell who it was that had complained. This Richie would not reveal. Mrs.
Carrico then declared, "Mr. Richie, you did not fire us for having a disturbance
in our house, because we did not have one. You fired us for being members of
the Union." According to Mrs. Carrico, Richie then "looked at me . . . smiled
and said if it ever came to court he would bring in the ones that made the
complaint. Court had not been mentioned until he did." There was no conflict
between the testimony of Mrs. Carrico and Richie with respect to their conversa-
tion. Richie testified, "I told her it [the discharge notice] was correct and I
did not intend to change it, because that was the conclusion that it had taken
place ; and I refused to change it."
On February 18, the Respondent notified Ralph Carrico to vacate within 7
days the company-owned house which he, his wife, and family had been
occupying.
B. The contentions of the parties
The General Counsel alleges that the Respondent had full knowledge of the
Carricos' union affiliations and that to discourage any further organizational
activity the Respondent discharged them on February 11 and subsequently
evicted them from a company-owned house. This is denied by the Respondent.
In its answer the Respondent averred that in cooperation with local law enforce-
ment officers it has endeavored to prevent disorderly conduct in the village of
Saxapahaw and that in doing so it established a rule requiring employees resid-
ing in company-owned houses to conduct themselves in a reasonable, decent, and
law-abiding manner . Respondent further averred that it was for violation of
this rule on February 5 and 6 that it discharged the Carricos io
e Pearl Carrico's layoff notice was not offered as an exhibit but the Respondent made
no effort to prove that her notice differed in any way from that given her husband which
appears in the record.
io On the third day of the hearing Respondent moved an extensive amendment to its
answer. The motion to amend was granted. Reference will be made to this amendment
below ( at pp. 290-293).
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 's officials testified that on Monday, February 7, they learned of
a drunken brawl in which the Carricos and others had participated at the
Carrico home during the week end of February 5 and 6 ; that after an investiga-
tion which continued for several days they concluded that the Carricos were
responsible and should be discharged and that, accordingly, Ralph and Pearl
Carrico were so notified on February 11. The General Counsel sought to prove
that Respondent ' s characterization of what transpired at the Carrico home on
February 5 was grossly inaccurate , that in fact the Carricos entertained no
more than a quiet gathering of friends on that evening , that they created no
disturbance of any kind either then or on February 6 and that the investigation
which the Respondent subsequently conducted was only a sham carried out
solely to provide a pretext for the elimination of two known union members.
C. Analysis of the testimony
1. The events of February 5 and 6 at the Carrico home
It was conceded by the witnesses for the General Counsel that on the evening
of February 5 two employees, Mr. and Mrs. Roland Kale, were at the Carrico
home for a few hours and that a third, Gene Anderson, stayed there that night."
Ralph Carrico testified that early Saturday evening Anderson had come to the
Carrico home and that after he had joined them at their evening meal, the
Bales arrived for a visit. Both the Carricos and the Bales testified that until
about 10: 30 p. m. one of their number played a guitar and the others sang.
They freely admitted that during the course of the evening several in the group
had from one to three drinks of whiskey but they vigorously denied that anyone
became intoxicated. Shortly before 11 p. m., the Bales, who lived next door,
returned home. Ralph Carrico testified that because his daughters were visiting
with relatives that night there was a vacant room in the house so he suggested
to Anderson, who was unmarried and lived some distance away, that he stay
with them. Anderson did so. Shortly thereafter, at about 11 p. in., according
to Carrico, he and his wife retired.
The following morning while the Carricos were eating breakfast they were
visited by Mrs. Carrico's brother, Earlie Solomon. Solomon stayed for only a
short while. He had been drinking and his sister endeavored to get him to
leave. At one point during his stay, he knocked a dish from the breakfast table
and as he stepped back Mrs. Carrico admonished him by pushing him up against
the wall where his head accidentally bumped a nail. There was no testimony,
however, that any fight developed. On the contrary, the testimony was that
after having been reproved by his sister Solomon sat down to finish his breakfast
with the Carricos and then departed.
Respondent endeavored to prove that sometime later that morning a fight took
place between the Carricos. The testimony, however, developed only the fact
that during the course of the morning Mrs. Carrico had jestingly pushed or shoved
her husband while both were in the yard behind their dwelling and that he had
tripped and fallen to the ground. That ended their scuffling, according to all
the witnesses. There was no violence, no fight, and none of the neighbors were
disturbed.
11 Mrs. Carrico's brother, Earlie Solomon, an employee of the Respondent and a resident
of the mill village, also came to the Carrico house at about 8 p. m. that evening. Accord-
ing to the credited testimony of both Ralph Carrico and Solomon , however, he remained
for only a very short while.
SELLERS MANUFACTURING COMPANY
2. Respondent 's investigation of the Carricos
287
Early in the week of February 7, Respondent began an investigation of the
conduct of the Carricos on February 5 and 6. Vice-President Longcrier testified
that the investigation was launched after Solomon reported to the mill on Feb-
ruary 7, unable to work, and asked to be excused with the explanation that
Mrs. Carrico had beaten him during the week end.
Section Man Ellington testified that Solomon came to work that day with
his face scratched and an eye discolored and was there only a short while before
asking that he be excused. This was not the first time that Solomon had reported
to work in that condition. In fact, Ellington testified that- it happened "every
3 or 4 weeks" and that on such occasions Solomon's fellow employees customarily
inquired whether he had "run into a door." Ellington stated that on February 7,
when noting Solomon's appearance he asked him this same question and that
Solomon told him this time that his sister, Mrs. Carrico, had beaten him. Elling-
ton relayed Solomon's request to get off to Superintendent Richie and at the
same time reported Solomon's remark about his sister.
Richie testified that he then talked to several neighbors of the Carricos "to
find out more about this situation." One employee contacted, Robert Lee Mann,
suggested that Richie talk to Boyd Stacy, another employee. Richie testified
that Stacy told him that there had been a "brawl" at the Carricos on Saturday
evening and that later Solomon had been drunk and obstreperous on a public
street in the village. According to Richie, Solomon, in explaining his appearance
on Monday, told him that he "fell up the steps" on his front porch and that he
had been drunk at a party at the Carricos and "got beat up."
General Superintendent Aultman 12 testified that he called a number of em-
ployees who were neighbors of the Carricos: Stacy told him that at 11 p. in. that
night a party was still in progress at the Carricos and that on other occasions
Mrs. Carrico had cursed and threatened to beat a Mrs. Herring and a Colleen
Spoon; Mrs. James Elliott, another neighbor of the Carricos, "confirmed the dis-
turbance" that night and told him of another occasion when the Carricos had
had trouble with a family named Graham ; Robert Mann told him that a dis-
turbance at the Carricos had kept him and his wife awake all night long and
that the following morning he had seen Mrs. Carrico get her husband by the
hair or ears and shake him. Other residents of the neighborhood, however, told
Aultman and Richie that they had not been disturbed. Bunk Vickers who lived
across the street from the Carricos told Richie that he was asleep Saturday night
and heard nothing. Marion Phillips, an employee who lived next door to the
Carricos, told Aultman the same thing. At the time Aultman was on the stand
Phillips had already been a witness for the General Counsel and had testified that
he had not been disturbed on either Saturday night or Sunday. He had also
testified that on Sunday he and Solomon had gone to a point some distance from
the village limits, where he and Solomon had become intoxicated during the
afternoon and Solomon had engaged in a fist fight with another person there;
that that evening Phillips had carried Solomon back to the mill village with
the latter cursing and threatening him all the while ; that as they reached a
point in front of the Elliott house, Mrs. Elliott complained to Phillips about the
disturbance and stated that if it did not stop she would send someone to get
then off the road ; and that sometime thereafter he managed to get Solomon to
Solomon's own house a short distance further down the street. Aultman stated
11 In the transcript this name is also spelled A-1-t-m-a-n.
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Phillips' account on the witness stand was substantially the same as that
which Phillips told him at the time of the investigation. Aultman testified that
the first time he talked with Solomon the latter told him nothing about what trans-
pired at the Carrico house but that later Solomon told him that on Saturday
he had gotten into an "affair" at the Carricos' and that the next day he had been
drinking and had created a disturbance in front of Mrs. Elliott's house.13.
Vice-President Longcrier attended those interviews at which Solomon, Phillips,
.and Mrs. Elliott were interrogated. Longcrier testified that Solomon stated
.then that he had become involved trying to protect his sister, Mrs. Carrico, and
that "all of the trouble he got into was in trying to protect his sister." General
;Superintendent Aultman, who ordered the discharge of the Carricos, testified
that upon completing the investigation he fired them "for a disturbance in* a
company house during the night of February 5th and 6th." He added that the
information obtained during the investigation of incidents which had happened
.prior to that "possibly might have influenced me. But they were discharged
,for that one party." (Emphasis supplied.)
3. Conclusions with respect to the Respondent 's investigation of the Carricos
No opportunity was afforded either one of the Carricos to affirm or deny the
Tumors of an alleged disturbance at their house or to state their side of the story.
If Aultman had been sincerely alarmed by the reports of a week-end disturbance
at the Carrico home and had endeavored to conduct an investigation that would
develop all the facts with respect thereto it is difficult to understand why he
or some other representative of management did not interview the Carricos
before imposing the drastic penalty of discharge and eviction upon the family.
Aultman testified that he did not interview the Carricos because he did not think
.he would get the "correct answer" from them, but he admitted that he did not
know them personally and that he had never even seen them until the hearing
opened before the undersigned . It is likewise significant that the Kales, who
were actually at the alleged "brawl" and who were next door neighbors of the
Carricos , were never interviewed . Aultman's explanation for not calling the
Kales was that he did not wish to "embarrass" them. On the other hand, he inter-
rogated Marion Phillips , who lived on the other side of the Carricos , as to his
participation in the events of the week end and stated that Phillips "cleared
himself."
The undersigned was impressed by the fact that even the witnesses called by
the Respondent offered little , if any, support to the Respondent 's contention
that there had been a noisome disturbance at the Carrico home on February 5.
Mrs. Elliott testified that all she heard that evening was "picking of the guitar
and singing." Stacy, who testified that he heard a party going on sometime
before midnight , stated that it had not bothered him because "if it had I
would have done something about it." Stacy 's wife who was out early in the
evening, but returned home later , heard nothing. Only Robert Mann and his
wife testified that the Carricos and their guests sang and played a guitar "prac-
13 Aultman testified that since he found no evidence that the Carricua were involved in
the disturbance in front of Mrs. Elliott's house on Sunday evening that incident had not
served in any way as the basis for their discharge. During the investigation, Aultman was
also in touch with D. L. Williams, deputy sheriff for Alamance County, who told Aultman
that he had a "report . . . that there was home brew cached somewhere about the Carrico
house" but that "he could not say whether it belonged to the Carricos. Aultman testified
with respect to this surmise by Williams, however, that "we did not even consider that
in our decision."
SELLERS MANUFACTURING COMPANY 289
tically all night." The Manus , however, saw neither of the Carricos that eve-
ning and were unable to describe the sound which they assumed to have ema-
nated from the Carrico home anymore than to say that "it sounded like danc-
ing and guitar playing and singing." The undersigned was not impressed by
the credibility of either Robert Mann or Mary Etta Mann and can give no
weight to the vague generalizations which characterized their testimony. It is
accordingly rejected . On the other hand, Vickers , who lived across the street
from the Carricos , slept through the whole night without being disturbed, as
had Marion Phillips who lived next door to them. The Kales, who lived on the
other side of the Carricos , testified to the same effect.
It is clear to the undersigned that on February 5 the Carrico home was not
the scene of an all-night disturbance that upset the community . He finds, on
the contrary , that what took place at their house that night was no more than a
quiet gathering of the Carricos , the Kales , and Anderson , which lasted no later
than 11 p. in. He is further convinced and finds that the scuffle in which the
Carricos engaged the following morning was in no sense a fight, as the Respond-
ent contends , and certainly in no way disturbed ' the neighborhood.
General Superintendent Aultman denied that he had knowledge of the Car-
ricos' union membership . On the other hand, he admittedly knew of the occa-
sion when Superintendent Richie had interrogated Mrs. Carrico about dis-
tributing literature in the mill , the occasion on which, as the undersigned has
already found , Richie asked her whether she was .a union member.. The Board
and the Courts of Appeals have held that an employer 's knowledge of an em-
ployee's union activities may sometimes be inferable from the fact that the
plant is not large and is the center of activity in a small community . Jasper
National Mattress Company, 89 NLRB 75; The Russell Manufacturing Company,
Inc., 82 NLRB 1081, 1082, 1127-1128; The Firestone Tire and Rubber Company,
62 NLRB 1316 , 1325; N. L. R. B. v. Abbott Worsted Mills , 127 F. 2d 438 , 440 (C. A.
1) ; N. L. R. B. v. Entwistle Mfg. Co., 120 F. 2d 532 , 535 (C. A. 4 ). ' The record
in the present case presents another example of why such an inference may be
valid. Thus, Aultman testified, that he "suspected " that employees Solomon
and Phillips were "union men" because he had seen them in the company of the
union organizer and although at one point in his testimony he denied knowledge
of the Carricos' union affiliations , later, on cross -examination , he stated that he
knew others who were more active in the union than they were "simply by obser-
vation." Both Aultman and Richie testified that during the course of the
investigation they conducted during the week of February 7, Solomon came to
them and offered to reveal the names of all the union members. In explaining
why he rejected Solomon's proffer of information , Aultman stated he did not
trust Solomon "nor any other man who gives out information too freely about
things you already know about." ( Emphasis supplied .) From Aultman 's testi-
mony as well as from Richie 's statement to Kale that he knew the "ring lead-
ers" of the union movement , the undersigned is convinced that the Respondent
was well aware of the Carricos ' union membership . He so finds.
Although the evidence is clear that the Carricos created no disturbance in
the community over the week end in question , it was admitted by all that Solomon
became highly intoxicated on the afternoon of February 6, created a disturbance
on the village street by becoming boisterous and profane that evening, and on
the following afternoon reported for work so physically unfit that he had to be
excused for the day. Despite all this, Aultman imposed no disciplinary action
on Solomon . In explanation of this fact , Aultman testified , "At that time he
'290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
took sides against his sister and Carrico . He said his wife was about to leave
him and that he would do better and if we would be lenient it would not hap-
pen again ." At the same time that Solomon was "taking sides against his sister"
he was also offering to supply Aultman and Richie with the names of the union
members.
At this time the Carricos had been employees of the Respondent for almost 2
years. Ralph Carrico had been in textile work for 20 years . There had been
no complaints about the Carricos ' work and Aultman admitted that prior to
February 7 he had heard no complaints about their conduct. Throughout the
week of February 7, they reported for work every day but were never interviewed
by any official of the Respondent or given a chance to answer any charges against
them which , allegedly , were circulating in the mill . In contrast with the abrupt
discharge of the Carricos for alleged misconduct that was not supported by any
substantial evidence , Solomon, who had clearly created a disturbance in the
village that same week end, but who during the investigation had offered to
disclose the union members in Respondent ' s employ, received only a mild
reprimand.
In the light of the above facts it is apparent to the undersigned that Auitman's
investigation was superficial and inadequate and launched solely to provide
evidence with which to bolster up a decision to eliminate the Carricos from the
Respondent 's employ because of their union affiliations.
4. Respondent 's amendments to its answer
Although in its original answer the Respondent alleged that the Carricos were
dismissed for cause in that they had disturbed the mill community by an all-
night brawl on February 5 and 6, on the third day of the hearing the Respondent
moved to amend its answer so as to incorporate as additional grounds for the
discharge a series of other incidents in which the Carricos allegedly had been
involved . These will now be considered.
The Carricos ' relations with the Grahams : Annie Graham and her husband,
Adam Graham , testified that because of their troubles with the Carricos they
had left the employ of the Respondent and moved away from Saxapahaw in
May 1948. They testified that on an occasion sometime in 1947 or 1948, Ralph
Carrico was arrested for threatening , while intoxicated , to assault the Grahams,
and that later the same day , Mrs. Carrico created a disturbance in the neighbor-
hood when she returned home and discovered that the Grahams had had her
husband jailed . Mrs. Graham also testified that on another occasion Ralph
Carrico "stole" her car. Ralph Carrico denied that he had ever taken Mrs.
Graham's car without her permission but he conceded that he had engaged in
a drunken disturbance of the Graham family of which he was ashamed and for
which he had apologized . Mrs. Carrico likewise admitted that at the time of
the latter incident she had belligerently vented her anger at the Grahams when
she returned home from a church meeting and discovered that in her absence
the Grahams had had her husband arrested . She maintained , however, that
afterwards she and Mrs. Graham were good friends. At the hearing the
Grahams claimed a deep and abiding fear of the Carricos . Yet Annie Graham
testified that Ralph Carrico had helped teach her to drive an automobile,
and that after he apologized for the drunken outburst which had resulted in
his arrest , Adam Graham had effected a withdrawal of all charges against him.
It also appears from the testimony of both Annie and Adam Graham that on
various occasions thereafter the Grahams and Carricos had driven together to
SELLERS MANUFACTURING COMPANY 291
neighboring towns. The Grahams' account of Ralph Carrico's behavior on the
day of his arrest was corroborated by other witnesses and the undersigned is
convinced that it was an instance in which Carrico was guilty of very disorderly
conduct . The undersigned is not satisfied , however, that the Carricos were
entirely responsible for any ill feeling which thereafter existed between the two
families. On the whole, the Grahams impressed the undersigned as somewhat
less than frank and much of their testimony as lacking credence . In any event,
the Grahams ' testimony concerning their relations with the Carricos is irrele-
vant as to the principal issue in this case, for it is obvious from the record that
the Respondent 's officials did not contact them prior to discharging the
Carricos"
Mrs. Carrico 's alleged threat to assault Ailene Spoon: In its answer filed prior
to the hearing, the Respondent averred , in part :
That about 10 : 00 p. m. on the evening of Saturday , February 5th, Mrs.
Carrico, who was alleged at that time to be in an intoxicated condition, went
to a house some 75 yards from the Carrico home, accompanied by another
woman alleged to be intoxicated , and engaged in an argument with the
persons residing at that place. Mrs. Carrico , in a loud, abusive and vulgar
manner, was threatening to assault one Ailene Spoon and made loud remarks
and gestures before those present , all of . which was on Company property.
As one of its amendments offered on the third day of the hearing, counsel for
the Respondent moved that this paragraph be amended to show that the alleged
threats to Ailene Spoon had been made not on February 5, "but a few weeks
prior thereto." The principal testimony that could be related to this passage
In the amended answer was given by Boyd Stacy who testified that one night
in May 1948 Mrs. Carrico had been on the village street before his house in a
drunken condition and had there uttered violent and profane threats about what
she proposed to do to one Colleen Spoon and also at that time had made a public
display of her person. From the manner in which he testified, however, the
undersigned is convinced that Stacy was a totally unreliable witness and that"
his account of this incident was highly exaggerated" His wife, Margie Stacy,
on. the other hand, impressed the undersigned as being a much more credible
witness than her husband. She testified that on the night in question she had
beard Mrs. Carrico loudly declare that she was going to "whip" Colleen Spoon,
that later Mrs.. Carrico referred to Ralph Carrico, her husband, in a derogatory
manner and when asked by a neighbor why she had done so stated that it was
because he "didn't have enough sense" to quit his job at the mill despite the
low wages he was being paid. Mr. Stacy's testimony was corroborated in part
by Mrs. Elliott who likewise impressed the undersigned as a credible, though
reluctant, witness. Further testimony of Mrs. Elliott pointed toward a medical
-explanation for much of the conduct on Mrs. Carrico's part which allegedly
-disturbed the neighborhood at this time. Thus, she testified that she had heard
that Mrs. Carrico was subject to mad fits," that on at least one occasion her
14 The record Is not clear how much, If anything, the Respondent learned of these
Incidents even from the employees it did call during its investigation. Although Aultman
testified that Mrs. Elliott told him something about the disturbance created at the Grahams'
the night that Carrico was arrested, Richie testified that he had heard only about Mrs.
Carrico's having disturbed the neighborhood that night and that he did not know anything
about Carrico 's conduct prior to the time of his arrest.
la Stacy admitted on cross-examination that on one occasion he had made amorous
advances to Mrs. Carrico which, It seems , bad.met with little encouragement.
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
husband had gone to the Carrico home to help take care of Mrs. Carrico during
a period when she was experiencing such an attack and that other neighbors
had done the same.
The alleged all night party on January 21, 1949: The Manns testified that on
January 21 , 1949, the Carricos held a party which lasted the entire night and
greatly disturbed and annoyed them. The undersigned accepts their testimony
that guitar playing and singing were heard emanating from the Carrico house
that evening but he does not believe that it continued throughout the night.
Robert Mann , his wife , and his mother -in-law, Mary Etta Thompson , the only
witnesses who testified with respect to this alleged occurrence , remained within
the Mann home all that evening . None of them left the house and none of them
saw the Carricos that night . All of the other neighbors of the Carricos who
appeared and testified were interrogated by counsel at great length as to
disturbances the Carricos allegedly caused but none of these other witnesses
gave any testimony about having been disturbed on January 21. In view of this
fact and for the further reason that the undersigned feels that neither the
Manns nor Mrs. Thompson were relating with any accuracy the volume of the
sound emanating from the Carrico household or the length of time the singing
continued , he does not believe that the Carricos disturbed their neighbors on
the night of January 21.
Mrs. Carrico 's alleged assault on Earlie Solomon on February 6: Witnesses
for the Respondent testified that on February 7, Earlie Solomon stated that his
sister had beaten him during the preceding week end. The only evidence in
connection with this incident has been discussed above at p . 286, and in no
manner serves to support an allegation that Mrs. Carrico committed an assault
upon her brother . Solomon did, in fact, participate in a fight on February 6,
but not with his sister or at the Carrico home . Instead, it is clear from the
testimony of both Solomon and Phillips that this occurred after Solomon left
the Carrico house and became involved in a drunken altercation with one Bobby
Hunter at a point beyond the village limits.
The Carricos ' record of arrests and convictions : During the cross-examination
of Ralph Carrico, counsel for the Respondent brought out that 22 years ago
Carrico was convicted of larceny and served a 2-year penitentiary sentence, that
in 1943 he was arrested for an assault on his wife, that after coming to work
for the Respondent he was arrested for threatening to assault the, Grahams and
that in October 1949 , 8 months after his discharge, he and Mrs. Carrico were
arrested and convicted of an affray in which both received sentences of 30 days
in the county jail which sentences were suspended upon payment of costs and
on condition that they not be convicted of a similar offense for 12 months. It
is clear to the undersigned that knowledge of these facts did not come to the
Respondent's attention until long after the Carricos were discharged. Such evi-
dence, therefore , has no bearing on the reason for their dismissal . Insofar as
this line of testimony is relied on to attack the credibility of the Carricos, that
relating solely to arrests is, of course , improper for "it carries the injustice of
subjecting the witness to suspicion without giving him an opportunity to clear
it away." 3 Wigmore , Evidence , § 980a (3d ed.) ; Universal Match Co., 23
NLRB 226, 236 . Likewise , evidence as to a witness ' conviction of assault and
battery has been held inadmissible when offered for the purpose of attacking
his veracity . Goodyear Tire & Rubber Company of Alabama, 21 NLRB 306, 312.
On the other hand, the undersigned has considered Carrico's conviction of a
felony in determining his credibility . However, with respect to the issues in-
SELLERS MANUFACTURING COMPANY 293
volved in this proceeding, the undersigned is convinced and finds that Carrico
was honest and forthright.
By its amended answer the Respondent sought to include testimony of all
of the above incidents in support of its discharge of the Carricos on February
11, 1949. Counsel for the Respondent conceded that some of the information
on which he based his motion to amend had been discovered only after the
hearing began or immediately prior thereto. The original answer, filed prior
to the hearing, alleged that the Carricos had been discharged for having dis-
turbed their neighbors on February 5 and 6, and General Superintendent Ault-
man testified that although information obtained during his investigation which
related to incidents that had occurred prior to that week end "possibly might
have influenced me," he went on to state that the Carricos "were discharged
for that one party." (Emphasis supplied.) Obviously, information which came
to the Respondent's attention subsequent to the time it decided to dismiss the
Carricos is irrelevant in determining the original reason for their discharge."
Counsel for the Respondent asserted, however, that in any event such evidence
has a bearing on the question as to whether the Carricos should be reinstated,
and, for that purpose, it has been considered as will appear below at pp. 295-296).
D. Concluding findings
The undersigned was impressed with Aultman's willingness in his investiga-
tion of the alleged disturbance at the Carrico household on February 5 and 6
to accept a one-sided version of the facts. Aultman not only did not give the
Carricos an opportunity to confront their accusers, but he at no time gave them
any information concerning any charge levelled against them nor an oppor-
tunity to make any explanation of their alleged wrongdoing.
The nonoccurrence of alleged misdeeds and a failure either to investigate
both sides of a case, or at least to afford the employee notice that he was being
investigated and give him an opportunity to defend himself, are factors which
tend to indicate that a determination to discharge an employee was based on
is The undersigned has also reviewed the testimony of R. B. Newlin , a justice of the
peace whom the Respondent called, apparently to prove some of the allegations in its
amended answer. Newlin testified that he had told Everett Jordan, secretary-treasurer
of the Respondent, that "there was a turmoil" in the mill village and that if Jordan
took no action he was going to turn the matter over to a grand jury. He further stated
that he felt it was Jordan's duty to investigate to "ascertain who caused all this ruction"
and that from the complaints that had come to him Jordan "would have been bound to
begin at the Carricos' home." On direct examination Newlin at first could not fix the
date that he went to see Jordan other than to say that it was "sometime before" the
discharge of the Carricos. Later, he stated that it was "a month or three weeks" before
their discharge. On cross-examination, however, Newlin could not recall any particular
incident that would have caused him to complain to Jordan in January 1949 and the
only ones whom he could recall as having protested to him about the Carricos were Mrs.
Graham and Mrs. Edward Neal , two people with whom the Carricos had had trouble
sometime before the Grahams moved away from Saxapahaw in May 1948. On the whole,
Newlin's testimony was vague , incomplete, and lacking in detail . Jordan was not called
as a witness. Aultman testified that prior to his investigation of the Carricos during
the week of February 7, he had heard no complaints regarding them and he made no
reference to having talked with Newlin during his investigation or of having received
any information on the Carricos from Jordan . Consequently , the undersigned is con-
vinced that Newlin's visit to Jordan took place sometime in 1948 at the latest. Since
the Respondent took no action then and Aultman during his subsequent investigation
of the Carricos , insofar as the record indicates , knew nothing of Newlin's protest to
Jordan, Newlin 's testimony has no relevance in determining the reason for the Respond-
ent's discharge of the Carrieos on February 11, 1949.
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considerations other than merit. N. L. R. B. v. Kentucky Fire Brick Co., 99 F.
2d 89, 92-93 (C. A. 6) ; N. L. R. B. v. Yale & Towne Mfg. Co., 114 F. 2d 376, 378
(C. A. 2) ; Shell Oil Co., Inc. v. N. L. R. B., 128 F. 2d 206, 207 (C. A. 5) ; Ameri-
can Smelting & Relining Co. v. N. L. R. B., 128 F. 2d 345, 347 (C. 'A. 5) ;
N. L. R. B. v. Fairmont Cremnery Co., 143 F. 2d 668, 672 (C. A. 10). So here, in
this case, where all of the above factors are present, the Respondent's explana-
tion for summarily discharging the Carricos and evicting them from the milk
village without preliminary warning or giving them an opportunity to defend
themselves is not persuasive. "Such action on the part of an employer is not
natural." E. Anthony & Sons v. N. L. R. B., 163 F. 2d 22, 26 (C. A. D. C.)..
Purportedly, it was Solomon's dishevelled appearance when he reported for
work on February 7 and his remark to fellow employees that his sister had
beaten him which touched off the investigation of the Carricos. Yet Solomon,
according to his section man, not infrequently appeared at work in a somewhat.
similar condition without exciting any concern. Aultman conceded that prior
to his investigation he had heard no complaints about the work or conduct of
these two employees. Consequently, the manner in which he and the Respond-
ent's other officials thereupon carried out their investigation of the Carricos-
is indicative of an effort to arrive only at a predetermined conclusion rather
than fairly and fully to arrive at the facts. Aultman's subsequent abrupt dis-
missal of them, following so closely upon Richie's interrogation of Mrs. Carrico-
as to her activities on behalf of the incipient union movement, impels the
conclusion that when Solomon's comments were reported to him, he seized the,
opportunity to build up a case. The undersigned is convinced and finds that-
this course of conduct has its explanation in a desire on Aultman's part to rid:
the plant of two active union members, and not because he sincerely felt with,
the facts then at his disposal that the Carricos should be banished as 'unfit
members of the mill community. In contrast with the punishment meted out to,
the Carricos for alleged participation in a disturbance that the undersigned hasp
found never occurred, Solomon, who admittedly did disturb the community om
February 6 but who offered to turn informer on the Union, received only at
mild reprimand. For the above reasons, the undersigned is convinced and,
finds that the General Counsel has proved by a preponderance of the testimony
that the Respondent discharged the Carricos because of their union activities
and that it thereby violated Section 8 (a) (1) and (3) of the Act.
It was further alleged that the Respondent violated Section 8 (a) (1) and
(3) of the Act by its eviction of the Carricos from a company-owned house.
This is likewise supported by the record. The Respondent owns about 100
houses in Saxapahaw which it rents to employees. This number, however, is
insufficient to accommodate all of its employees and those for whom company-
owned houses in the mill village are unvailable must find quarters ' elsewhere_
It is clear from the record that the rental of a company-owned house is defi-
nitely an advantage to the employee. Section Man Edward M. Neal, who had:
lived in one all his life, testified that the rent on a 4-room company-owned house,
is approximately $25 a month cheaper than it would be for comparable accom-
modations outside the mill village. In the light of this fact the rental of such
homes to employees is a privilege l.mounting in effect to a part of their wages
and constitutes a term and condition of their employment, within the meaning.
of Section 8 (a) (3) of the Act. In view of this fact and in the absence of any-
.explanation for, the Carricos' eviction apart from the termination of their-
employment, it is apparent to the undersigned that they were evicted for the.
SELLERS MANUFACTURING COMPANY 295
same reason that they were discharged, that is for their above-mentioned union
activity. The undersigned finds that by this conduct the Respondent further
violated Section 8 (a) (1) and (3) of the Act. Abbott Worsted Mills, Inc., 36,
NLRB 545, 555-556, enforced 127 F. 2d 438 (C. A. 1) ; Great Western Mushroom
Co., 27 NLRB 352, 370 .
In addition, the complaint alleged that the Company had violated Section $.
(a) (1) of the Act not only by the above conduct, which the undersigned has
already found to have been violative of both Section 8 (a) (1) and (3), but
also by interrogating its employees as to their union affiliations. This also is
supported by the record. Superintendent Richie's interrogation of Mrs. Carrico
as to her union membership and activities as well as his questions directed
at discovering the name of the one from whom she had obtained union litera-
ture, as found above (at pp. 283-284), all come within the prohibitions of the Act.
Meier & Frank Company, Inc., 89 NLRB 1016; Standard-Coosa-Thatcher Com-
pany, 85 NLRB 1358. The undersigned finds that by such conduct the Respond-
ent interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act, thereby committing unfair labor prac-
tics within the meaning of Section 8 (a) (1) thereof.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with its operations described in Section I, above, have a close, intimate,
and substantial relation to commerce among the several States and tend to lead
to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Since it has been found that Respondent has engaged in unfair labor prac-
tices affecting commerce, it will be recommended that the Respondent cease
and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
It has been found that the Respondent discriminated as to the hire and
tenure of Ralph and Pearl Carrico by discharging them on February 11, 1949,
and by subsequently evicting them from a company-owned house because of
their union activities. The undersigned will therefore recommend that the
Respondent offer Ralph Carrico immediate and full reinstatement to his former
or substantially equivalent position,17 without prejudice to his seniority or other
rights and privileges, and make him whole for any loss of pay he may have
suffered by reason of the Respondent's discrimination against him by payment
to him of a sum of money equal to the amount he would have earned during
each quarter-year beginning February 11, 1949, and extending to the date of
offer of reinstatement less his net earnings 18 during each of such periods. Earn-
ings in one particular quarter-year shall have no effect upon the back-pay
liability for any other such period. At the hearing Pearl Carrico testified that
she did not desire reinstatement. In view thereof the undersigned will not
recommend her reinstatement but will recommend that she be awarded back
pay for the period from the date when the Respondent discharged her to the
17 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65
NLRB 827.
18 Crossett Lumber Company , 8 NLRB 440, 497-498.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date on which she decided to reject reinstatement," the total amount of such
back pay to be computed by quarterly periods in the same manner as described
above. It will also be recommended that the Respondent make available to the
Board or its agents, upon request, payroll and other records to facilitate the
checking of the amount of back pay due. F. W. Woolworth Company, 90 NLRB
289.
The undersigned has also found that the Respondent discriminatorily evicted
the Carricos from a dwelling owned by the Respondent. Accordingly, he will
recommend that the Respondent offer Ralph Carrico immediate occupancy of a
company-owned house, if available, and if not immediately available, then as
soon as vacancies occur. The undersigned will further recommend that the
Respondent make whole Ralph Carrico for any loss he may have suffered by
reason of his discriminatory eviction by payment to him of a sum of money
equal to what he has had to pay as rental for a new dwelling from the date of
the eviction to the date he is offered reinstatement and occupancy in the manner
set forth above, plus such additional expenses as he may have incurred during
said period as a direct result of his eviction, but less the amount he would nor-
mally have paid as rent for his company-owned house during said period. Abbott
TV'orsted Mills, 36 NLRB 545, 557, enforced, 127 F. 2d 438 (C. A. 1).
Respondent's interrogation of its employees in connection with the exercise of
their right to self-organization coupled with the discharge and eviction of the
Carricos leads to the conviction that there is a danger that such conduct will
be repeated. Thus, in order to effectuate the policies of the Act, to make more
effective the interdependent guarantees of Section 7, and to deter the Respondent
from future violations of the Act, it will be recommended that the Respondent
cease and desist from infringing in any manner upon the rights guaranteed in
Section 7 of the Act.
The undersigned, as stated above, is convinced that the Respondent discrim-
inated against the Carricos because of their participation in union activities and
that only in the event it is ordered to take the steps outlined herein will its
conduct be remedied. During the hearing, the Respondent's officials testified at
length on the effort which the Company has made during the recent past to main-
tain order in the unincorporated village of Saxapahaw. No doubt this is true.
Although the undersigned has rejected, for the reasons already stated, the Re-
spondent's contention that the Carricos were discharged for any of their alleged
past derelictions, and does not believe that they were such as to render the
Carricos surely unqualified for further employment by the Respondent, on the
other hand, he feels that at times their behaviour, as well as that of other
employees in the community, left much to be desired. The undersigned appre-
ciates the problems which living conditions in the mill village may at times
compel the Respondent to face. Consequently, he wishes to make it clear that
in complying with these recommendations the Respondent is in no manner pre-
cluded from enforcing any nondiscriminatory rules which have for their objective
the prevention of serious breaches of the peace or the public order in the village
pf Saxapahaw.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the undersigned makes the following :
.'fl This date does not appear in the record. It can be ascertained in compliance pro-
ceedings if the parties are unable to reach agreement. E. A. Laboratories, Inc., 80 NLRB
625, 627.
SELLERS MANUFACTURING COMPANY
CONCLUSIONS of LAW
297
1. Textile Workers Union of America, C. I. 0., is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment and a
erm and condition of employment of Ralph and Pearl Carrico, thereby discourag-
ing membership in a labor organization, the Respondent has engaged in and is
engaging in unfair labor practices, within the meaning of Section 8 (a) (1) and
(3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
929979-51-vol. 92-21