Sewell Hats, Inc.

National Labor Relations Board - Board Decisions

Jan 5, 1944

54 N.L.R.B. 278 (N.L.R.B. 1944)

In the Matter of SEWELL HATS, INC. and CONGRESS OF INDUSTRIAL
ORGANIZATIONS
Case No. 10-C-1.363.-Decided January 5 , 1944
DECISION
AND
ORDER
On October 8, 1943, the Trial Examiner 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 out in the copy of the Intermediate Report
attached hereto. Thereafter, the respondent filed exceptions to the
Intermediate Report and briefs in support of the exceptions. Pur-
suant to notice duly served upon all parties, a hearing for the purpose
of oral argument was held before the Board in Washington , D. C., on
December 16, 1943. Respondent participated in the oral argument.
The Union did not appear.
The Board has considered the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed . The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the respondent 's exceptions and brief , and the entire record
in the case , and hereby adopts the findings, conclusions , and recom-
mendations of the Trial Examiner with the additions , exceptions, and
qualifications hereinafter set forth.
1. At the hearing the respondent was given leave to amend its
answer to set up a new defense, that the discharges of Boykin Barnett
and Willie Dodson and the lay-off of Lovena Johnson were the result
of its financial condition which required a reduction in the pay roll,
operational expenses and inventory . To substantiate this contention,
which was only one of several defenses offered, the respondent pro-
duced at the hearing its Balance Sheet, Statement of Income, Profit
and Loss and Analysis of Deficit for the fiscal year ending March 31,
1943. The respondent also produced Auditor Hunt who testified as
1 The Trial Examiner granted a motion to dismiss the complaint as to Clifford R.
wheeless , an individual , originally named as a respondent.
54 N. L. R. B., No. 38.
278
SEWELL HATS, INC. 279,
to the preparation of the above documents, the respondent's financial
condition, and to a conversation which he had with Mrs. Sewell in
connection with auditing the respondent's books.
We have considered the foregoing evidence, although it was rejected
by the Trial Examiner, but we find the respondent's contention to be
without merit. The financial statement referred to above shows that
for the fiscal year ending March 31, 1943, the respondent sustained
a loss on operations of $4,470.66 and that for the same period its net
sales amounted to a total of $276,182.05, the value of finished goods to
$71,154.58 and the total inventories to $256,875.25. Auditor Hunt
testified that in April 1943 he told Mrs. Sewell that the respondent's
inventory was about five times as much as it should be and that he
advised her to cut down the overhead and reduce the inventory. He
also testified that the respondent could have closed its plant for 3 or 4
months without thereby adversely affecting its sales. The respondent
completely failed to show, however, that a program of retrenchment
was actually embarked upon and that the discharges and lay-off of the
employees named in the complaint occurred in a non-discriminatory
execution of such a program. On the contrary, the record shows that
no program involving a closing of the plant or a reduction in personnel
was ever inaugurated and that, except for the employees named in
the complaint, no employees were either discharged or laid off during
the period between May 7, 1943, the date of the first allegedly dis-
criminatory discharge, and the date of the hearing. Moreover, the
respondent's records show that a number of the employees in the
finishing department, where those discriminated against were em-
ployed, worked overtime during June, July, and August 1943. We
therefore conclude that the defense, that the discharges and lay-off were
attributable to_ the respondent's financial condition, was an after-
thought and is without merit. The respond'ent's last minute assertion
of a reason for the discharges and lay-off, which is totally different
from the other reasons which it advanced and which were found by
the Trial Examiner to be similarly lacking in merit, 'serves to
strengthen our conclusion that the concerted and union activities
engaged in by these employees was the real reason for the discharges
and lay-off.
2. We do not concur in the Trial Examiner's finding that Willie
Dodson was discharged and Lovena Johnson was laid off for the fur-
ther reason that on June 2, 1943, they testified at the hearing in a
representation proceeding involving the respondent's employees. The
only evidence bearing upon this issue is to be found in the testimony of
Foreman Beck, who testified that Mrs. Sewell was apparently dis-
pleased because he gave these employees permission to leave the plant
at 12: 30 p. in. although they did not have to appear at the hearing
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
until 3: 30 p. in., and that on the same afternoon Mrs. Sewell also gave
him orders to assign Elsa Harris to the wool operation, which had
been Dodson's regular assignment for over 2 years. However, neither
Mrs. Sewell's displeasure nor her orders to assign another employee
to Dodson's operation establishes an intent to discriminate against
these employees for testifying in the representation proceeding. On
the contrary, the fact that Board Witness Willie Carrithers also ap-
peared and testified for the Union at the same hearing, but was not
discriminated against, leads to the conclusion that respondent did not
discriminate against an employee merely for testifying. We accord-
ingly find that the allegation that the respondent discriminated in
regard -to the hire and tenure of employment of Willie Dodson and
Lovena Johnson within the meaning of Section 8 (4) of the Act has
not been sustained, and we shall, therefore, dismiss that section of
the complaint.
3. The Trial Examiner found that while visiting the home of em-
ployee Davis in May 1943, Myrtie Pattillo told Davis that she hoped
that Davis would not join the Union. This finding is based solely
upon the uncorroborated hearsay testimony of employee Kimbrough.
Pattillo denied having made the statement attributed to her and Davis
was not called to testify. Under all the circumstances we disagree
with the Trial Examiner's finding as to the alleged conversation
between Pattillo and Davis.2
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent Sewell Hats, Inc., Red Oak,
Georgia, its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in the Congress of Industrial Or-
ganizations, or any other labor organization of its employees, by
discharging, laying off, or refusing to reinstate any of its employees,
or in any other manner discriminating in regard to their hire and
tenure of employment, or any term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining, or other mutual
aid or protection, as guaranteed in Section 7 of the Act.
' We also correct the following typographical errors in the Intermediate Report: (a) At
one point, the Trial Examiner found that Barnett "returned to the plant again on June
26, 1943." The correct date of Barnett's return to the plant is May 26, 1943 (b) The
Trial Examiner gives the date of the union meeting held in Johnson ' s house as June 9,
r943. The correct date of the meeting is May 9, 1943.
SE`VELL HATS, INC. 281
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Boykin Barnett, Willie Dodson, and Lovena Johnson,
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority and other
rights and privileges;
(b) Make whole Boykin Barnett, Willie Dodson, and Lovena John-
son for any loss of pay they may have suffered by reason of the re-
spondent's discrimination against them, by payment to each of them
of a sum of money equal to that which he or she normally would have
earned as wages from the date of his or her discharge or lay-off to
the date of the respondent's offer of reinstatement, less his or her net
earnings during said period;
(c) Post immediately in conspicuous places in its plant in Red
Oak, Georgia, and maintain for a period of at least sixty (60) con-
secutive days from the date of posting,' notices to its employees
stating: (1) that the respondent will not engage in the conduct from
which it is ordered that it cease and desist in paragraphs 1 (a) and
(b) of this Order; (2) that the respondent will take the affirmative
action set forth in paragraphs 2 (a) and (b) of this Order; and (3)
that the respondent's employees are free to become and remain mem-
bers of Congress of Industrial Organizations, and that the respondent
will not discriminate against any of its employees because of mem-
bership in or activity on behalf of that organization ; and
(d) Notify the Regional Director for the Tenth Region in writing,
within ten (10) days from this Order, what steps the respondent has
taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the respondent discriminated in regard
to the hire and tenure of employment of Julia Scarbrough within the
meaning of Section 8 (3) of the Act, and that respondent discriminated
in regard to the hire and tenure of Willie Dodson and Lovena Johnson
within the meaning of Section 8 (4) of the Act.
INTERMEDIATE REPORT
Mr. Mortimer H. Freeman, for the Board.
Mr. 0. C. Hancock and Mr. C. R. Wheeless, of Atlanta, Georgia, for the
respondents.
Mr. C. H. Gillman and H. W. Denton, of Atlanta, Georgia, for the Union.
STATEMENT OF THE CASE
Upon amended charges duly filed on July 31, 1943 , by Congress of Industrial
Organizations, herein called the Union, the National Labor Relations Board,
herein called the Board , by the Regional Director for the Tenth Region (Atlanta,
Georgia ), issued its complaint dated July 31, 1943 , against , Sewell Hats, Inc,
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein called the respondent Sewell and Clifford R. Wheeless,' herein called the
respondent Wheeless, alleging that the respondent Sewell had engaged in and
was engaging in unfair labor practices affecting commerce within the meaning
of Section 8 (1) and (3), and that the respondent Wheeless had engaged in and
was engaging in unfair labor practices affecting commerce within the meaning
of Section 8 (1) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. Copies of the complaint, accompanied by notice of hearing, were duly
served upon the respondents Sewell and Wheeless and the Union.
With respect to the unfair labor practices the complaint as amended alleged in
substance that : (1) the respondent Sewell discharged Julia Scarbrough on May 7,
1943, and Boykin Barnett on May 26, 1943, because they joined or assisted the
Union or gngaged in concerted activities for the purpose of collective bargaining
or other mutual aid or protection; (2) the respondent Sewell discharged Willie
Dodson on June 8, 1943, and Lovena Johnson on June 11, 1943, for the above
reasons and for the further reason that Dodson and Johnson gave testimony
under the Act, on June 2, 1943, in a representation case before the Board ; 2 and
(3) respondent Sewell and/or respondent Wheeless, urged, persuaded and warned
employees to refrain from joining or remaining members of the Union, offered
rewards to employees for information concerning union activities, questioned
and interrogated employees concerning their union affiliation and activities and
similar activities of other employees, kept under surveillance the meeting places
and concerted activities of the employees, promised employees increases in pay
for resigning from the Union and refused to release employees to enable them
to secure other employment unless the said employees voted against the Union.
Answers were duly filed by each of the respondents, denying that they had
engaged in any of the alleged unfair labor practices. Respondent Sewell in its
answer admitted that it was engaging in commerce within the meaning of the
Act and asserted certain affirmative defenses in respect to the discharges of the
four employees named above, which defenses are discussed hereinafter.
Pursuant to notice, a hearing was held from August 16'to 25, 1943, at Atlanta,
Georgia before Henry J Kent, the undersigned Trial Examiner duly designated
by the Chief Trial Examiner. The Board and the respondents were represented
by counsel, and the Union by representatives, and all participated in the hear-
ing. Full opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues was afforded all parties. At the
close of the Board's case counsel for the respondents moved : to strike all evidence
admitted over their objections ; to dismiss the complaint in its entirety, to dis-
miss the allegations of the complaint pertaining to the respondent Wheeless ;
and also to dismiss the allegations in respect to the alleged acts of interference,
restraint and coercion. The motions were denied without prejudice to later
renewal. At the conclusion of the hearing, without objection offered, the under-
signed granted motions offered by counsel of the Board to dismiss the allegations
of the complaint pertaining to respondent Wheeless and to conform the plead-
ings with the proof. Counsel for the respondents renewed all of their above
motions, except the motion pertaining to respondent Wheeless. The motions are
hereby denied. The respondent Sewell also at this time moved to amend its
answer, which motion is now granted e The parties were afforded, but declined,
I As appears above, Wheeless is a lawyer and an associate counsel' for the respondents
at the hearing
2In the Matter of Sewell Hats , Inc., and Congress of Industrial ` Organizations, 50
N. L. R B 883.
2 The amendment alleges, in substance, that in addition to the reasons stated in its
original answer pertaining to the discharges that the said employees were discharged or
laid off for the further reason that the financial condition of the respondent forced it to
curtail its working force.
SEWELL HATS, INC. 283
an opportunity to argue orally, before the undersigned. The respondent asked
leave to file a brief and was granted 15 days time to file it. No brief has been
received by the undersigned.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Sewell Hats, Inc., is a Georgia corporation engaged in the manufacture of
men's and boys' neckties, straw and wool hats at Red Oak, Georgia. During 1942
the Company purchased raw materials valued in excess of $50,000, in excess of
50 percent of which was shipped from points outside the State of Georgia. During
the same period the Company manufactured finished products valued in excess of
$100,000, more than 51 percent of which was shipped to points outside the State
of Georgia. It was stipulated on the record that the respondent Sewell was
engaging in commerce within the meaning of the Act.
H. THE ORGANIZATION INVOLVED
The Congress of Industrial Organizations is a labor organization admitting
to membership employees of the Company. The parties stipulated that it was .
a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events
During the latter part of January or early in February 1943, Mrs. Willie
Dodson, Mrs. W. H. Astin, Lovena Johnson and Willie Carithers asked Beck,
foreman of the finishing room in the respondent's plant, to request Mrs. R. A.
Sewell, herein called Mrs. Sewell, the president and general manager of the
business, to grant them pay increases. Beck informed them, later in the day,
that Mrs. Sewell told him she could not grant their requests. The following day
they asked Beck to tell Mrs. Sewell that they would like to talk to her. Subse-
quently Mrs. Sewell met them in the tie room.' At this meeting Lovena Johnson,
who acted as the spokesman of the group, told Mrs. Sewell that all of them were
requesting wage increases, or a reduction of their piece rate quotas to permit
them to earn more than the minimum hourly rate of pay. Mrs. Sewell told them
that wages had been frozen, but said she would ask her auditor to advise her
concerning'the matter.
The above group, who at the time were only speaking for themselves, then
decided to form a union among the employees in the plant. They asked Julia
Scarbrough, also a finishing room employee, to ask her husband, a C. I. O. mem-
ber, to request the Union to send a representative to the plant to discuss organiza-
tion with the employees.
In the latter part of April • the above group asked Gertrude Kimbrough, the
receiving and shipping clerk, to assist them and to act as a leader in the proposed
union organization. On May 3, 1943, Kimbrough told Myrtie Pattillo, secretary
to Mrs. Sewell, that the employees were organizing. Pattillo related the con-
versation to Mrs. Sewell and the same night Mrs. Sewell asked her son, R. A.
Sewell, Jr., Foreman Beck, Foreman Robinson and Pattillo to attend a conference
in the plant office. She sent for Kimbrough to interrogate her in the presence of
* The necktie department.
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the above supervisors concerning the statements that Kimbrough had made.
Mrs. Sewell said that she called Kimbrough back to "verify" Kimbrough's
remarks to Pattillo concerning the formation of a union in the plant.
On a Monday morning in the latter part of April or early in- May, Scarbrough
informed the group interested in a union organization, that Charles H Gillman,
Regional Director for the C. I. 0, would meet with them at the employees' gate
at the noon lunch hour. Gillman did not appear on that day and Dodson called
him on Thursday, May 6, to arrange for another meeting. Gillman agreed to
meet them at the employees' gate during the lunch hour on May 7, 1943, and
advise them concerning a union organization.
On the morning of May 7, Dodson informed Johnson and Scarbrough of her
previous conversation with Gillman and the three of them proceeded to invite
some of their fellow employees to meet the union representative.
Gillman, accompanied by another union representative named Thomas, drove
to the plant on May 7, and met a number of the employees at the back gate
of the plant during the lunch hour on that day. Employees Dodson, Johnson,
Scarbrough, Irene Wingo, Astin, Carithers and Florie Smith comprised the
group who went out to talk with Gillman. They spent approximately a half
an hour in discussing the situation with him. At the time they arranged to
hold a meeting at Lovena Johnson's house on Sunday afternoon, May 9
Gillman gave Scarbrough a number of union application cards He then
asked her to go over to a group of colored employees who were sitting near
the plant gate to ask them to join the Union and attend the meeting at John-
son's house on the following Sunday. Scarbrough did so and some of them
attended the meeting at Johnson's house on Sunday, May 9.
Shortly after they returned to the plant Scarbrough was informed by Fore-
man Beck that Mrs Sewell intended to terminate her employment at the end
of the day. Later in the afternoon she was given her release papers. Just
before closing time on the same day Mrs Sewell told Back to tell the employees
in the finishing room that the department would be closed on Monday, May 10,
1943. On Sunday, May 9, Mrs Sewell called Beck on the telephone, and re-
quested him to notify the finishing room employees not to return to work until
notified. The finishing department remained closed for the entire week of
May 10, 1943.
On June 9, 1943, at the union meeting held in Johnson's home, Johnson,
Scarbrough, Dodson, Carithers and Astin made arrangements to call on some
of the employees, who had not attended the meeting, to solicit them to join
the Union. On the following morning, Monday, May 10, this group started out
in an automobile to call on some of the respondent's employees. They picked
up Boykin Barnett, a colored employee, to point out to them homes of the
colored employees. They called at the homes of several colored employees and
Barnett solicited these employees to join the Union.
Barnett, who worked as a blocker in the finishing department, had injured
his hand during the week the department shut down and was unable to resume
work when the department reopened on May 17, 1943 He went to the plant
to report his injury, a day or two after operations had been resumed, and said
that he would report for work when able to use his hand. He returned to the
plant again on June 26, 1943, after his injuries had healed and told Mrs.
Sewell that he was ready to go back to work. • Mrs. Sewell told him she had
no work for him to do and ordered Foreman Beck to tell him that he was
discharged because another man had been given his job.
On June 2, 1943, the representation hearing above mentioned, in whichre-
spondent Sewell and the Union herein were parties, was held in Atlanta.
Dodson, Johnson and Carithers were called as witnesses by the Union to testify
SEWELL HATS, INC. 285
at the hearing. On June 3, Johnson's sewing machine broke down and she
was unable to continue working for the balance of the day. She reported to
work again on Friday, June 4, on which day mechanics from the Singer Sew-
ing Machine Company attempted to repair the machine, but were unable to
get it in working order. The machine was repaired on Sunday, June 6. Dodson
did not report for work on Monday, June 7, but testified that she failed to
report because she had understood that she was not to return until the re-
spondent notified her that the machine had been repaired. Mrs. Sewell testi-
fied that she had requested Dodson to report for work on Monday morning.
Dodson went in to work on Tuesday morning at which time she was discharged,
allegedly, because she had not come in to work on Monday and showed a lack
of interest in her work.
Lovena Johnson was laid off on June 11, 1943. The reason given, for her
layoff, was that work was slack. Since that time she has been recalled and
given 3 days work at the plant prior to the opening of this hearing.
B. Interference, restraint and coercion
In the latter part of April or early in May 1943, Willie Dodson and Mrs. W. H.
Astin employees in the finishing room, told Gertrude Kimbrough, the receiving
and shipping clerk in the plant, that they intended to organize a Union among
the employees and asked Kimbrough to act as a leader in the campaign.
On the night of May 3, 1943, when Kinibrough was leaving the plant, she saw
Myrtie Pattillo, Mrs. Sewell's secretary, sitting in her automobile near the
plant gate. Kimbrough went over to the car and asked Pattillo, "I wonder
what will become of the Union this time?"' Pattillo expressed surprise and
asked if the employees were attempting to form a union. Kimbrough then told
Pattillo that some of the employees had asked her to be one of the leaders in the
proposed organization. Pattillo went into the plant and told Mrs. Sewell what
Kimbrough had told her whereupon Mrs Sewell asked R. A. Sewell, Jr., Pattillo
and Foremen Beek and Robinson to come to the office. She then sent the janitor
to Kimbrough's home to ask her to come to the office. Foreman Beck testified,
without contradiction, that before Kimbrough arrived, Mrs. Sewell asked him,
"What is wrong in the finishing room?" Beck replied, "Nothing that lie was
aware of," whereupon Mrs. Sewell said, she had heard that the girls were forming
a union. Kimbrough testified, without substantial contradiction, that when she
arrived, Mrs Sewell asked her what knowledge she had concerning union activ-
ities in the plant. Kimbrough then repeated what she had told to Pattillo.
Mrs Sewell then asked her who among the employees had asked Kimbrough
to be a leader in the union activities. Kimbrough did not state any names, but
said they were employees in the finishing room.' Mrs Sewell testified that her
only purpose in sending for Kimbrough was to "verify" what Pattillo had told
her concerning her conversation with Kimbrough. Whatever the purpose may
have been at the time, it is obvious that the effect of such conduct by an employer
would discourage proper union activities by employees.
Lovena Johnson testified that Willie Dodson, Florie Smith, Ruth Webb and
Johnson were driving home from work one night and saw the plant janitor,
Solley, on the road. They stopped and Johnson asked him to attend a Union
meeting at her home that night. Solley told them he had originally been in
5 Kimbrough testified, that several years previously when R A. Sewell now deceased, was
president of the company an attempt, to organize the plant failed
" Kimbrough testified that R A Se sell, Jr , told her at the time that she did not have
to talk unless she wanted to and that Foreman Robinson stated, that any employees under
the act had a right to organize if they wanted to do so.
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
favor of the Union, but later changed his mind, "Because Mrs. Sewell said that
anybody .that joined the Union would be without work." Solley gave no testi-
mony at the hearing. Mrs. Sewell testified that she had never discussed the
Union with any employee after the Kimbrough incident discussed above, but
did not specifically deny having made a remark similar to that attributed to
her by Solley. In view of the Kimbrough incident and other matters discussed
herein, such as the discharge cases of Barnett and Dodson and the lay-off of
Johnson treated below, the undersigned concludes that Mrs. Sewell made the
statement attributed to her, as stated by Solley. Such a remark by an employer
clearly constituted interference with the right of employees to organize within
the meaning of the Act.
As appears above, the finishing department was closed from Monday, May 10
to Friday, May 15, 1943. On May 10, employees Dodson, Johnson, Carithers,
Astin, Scarbrough and Barnett called at the homes of employees to solicit them
to join the Union. In the afternoon, Scarbrough and Dodson saw Pattillo, Mrs.
Sewell's secretary, driving around in the colored section, which they had earlier
visited.? On the morning of May 11, 1943, Pattillo stopped at the home of Bar-
nett's mother-in-law, Kelly Glass, told Glass to ask her two sons, who were em-
ployed at the plant, not to join the Union and also told Barnett, who was pres-
ent, not to join it, because Mrs. Sewell did not want a union in the plant.8 Kim-
brough testified that employee Davis told Kimbrough that Pattillo had visited her
home in May 1943, and told Davis that she [Pattillo] hoped that Davis would not
join the Union, because Mrs. Sewell wanted to run the plant as her deceased hus-
band had previously run it [obviously meaning without a union]. Davis was not
called to testify. Pattillo, a witness for the respondent, denied that she talked
with employee Davis concerning the Union, but admitted visiting the Davis home
in May to inquire about the condition of Davis' children who had been ill. In
view of the Kimbrough incident and the Glass-Barnett incidents discussed above,
together with a consideration of all other evidence in the record, the undersigned
accepts Kimbrough's version of the incident as credible and accordingly finds that
Pattillo asked Davis not to join the Union.
Samuel Sprayberry was employed as a carpenter and handy man. He spent
considerable time working in the box department and testified that Leon Cosper
supervised his work in that department. In addition to Cosper, there are two
employees regularly employed in the department and during busy periods two
or three others worked under Cosper's supervision. Although Cosper 'spends
most of his time on manual labor he is paid a salary of $30 per week, while the
other employees are paid on an hourly basis. Sprayberry testified that during
the week beginning May 10, 1943, Mrs. Sewell told him to work overtime to help
Cosper and several other employees move a hot bogs Sprayberry testified that
while on this job, Cosper told him not to join the Union, if he wanted to hold his
job. Cosper denied-having made the above statetment to Sprayberry. Sprayberry
impressed the undersigned as a truthful witness, while Cosper was evasive and
argumentative in giving his testimony.10 The undersigned accepts Sprayberry's
testimony as credible and true.
4 Pattillo admitted calling at some of the homes of colored people at about this time,
but said she had gone there to hire some of them to work for her.
S The facts supporting this finding are discussed below, in the discharge case of Boykin
Barnett.
This article was a metal heating cabinet used in connection with the processing of
hats.
10 Among other things he admitted on cross-examination that he may have told the
field examiner for the Board that he was a foreman , but that did not make him one.
SEWELL HATS, INC. 287
The respondent Sewell contends that Pattillo and Cosper were not supervisory
employees and that therefore it is not responsible for their statements or
activities.
R A. Sewell, the deceased husband of Mrs Sewell, had been the president
and managing head of the business until his death in January 1940, when Mrs.
Sewell succeeded him. Pattillo had been secretary to R A. Sewell for many
years and has continued to act in the same capacity for Mrs. Sewell, since
her husband's death. Pattillo had authority to sign company checks during
Mr Sewell's lifetime and still continues to exercise this authority and together
with Mrs Sewell occupies a private office in the plant. Foreman Beck testified
that on occasions when Mrs. Sewell has been away from the plant on business,
or other trips, Pattillo came into his department to give him his orders and
that he also went to her for instructions. Dodson testified that on one occa-
sion when Mrs. Sewell was in Boston, Massachusetts, Pattillo was in the fin-
ishing department. Dodson felt ill at the time and told Pattillo. The latter
then said, "You get up and go home.," Before leaving, Dodson told Foreman
Beck what Pattillo had told her and Beck did' not question Pattillo's authority
to excuse Dodson Pattillo denied having any supervisory authority and said
that she only acted as an intermediary for Mrs. Sewell in transmitting orders.
In addition to the facts mentioned above tending to show the supervisory
capacity of Cosper, Foreman Beck testified that Cosper was foreman of the
box department and ordinarily had four or five employees working under his
supervision.
In the instant case the employees of the respondent Sewell could have re-
garded Pattillo's and Cosper's statements only as emanating from the respond-
ent, in view of the positions they occupied as shown by this record"
Upon a consideration of the above, the undersigned finds that the respondent
Sewell has interfered with, restrained and coerced and is interfering with,
restraining and coercing its employees in the rights guaranteed in Section 7 of
the Act.
C. The discharges
Boykin Burnett worked in respondent's plant for approximately a year and
a half, substantially all of which time he worked as a hat blocker under Fore-
man Beck in the finishing room. Beck testified that Barnett was a good
blocker'Z steady and dependable, who always earned or exceeded the minimum
wage and that after he was replaced two men were required to get out the
same amount of work that Barnett had previously produced alone. There had
been no complaints concerning his work brought to Barnett's attention.
Barnett had taken a very active part in organizing the colored employees.- On
May 10, 1943,33 he spent the entire day driving around with a white organizing
"See International Association of Machinists, Tool and Die Makers Lodge No. 85 v.
National Labor Relations Board, 60 Sup. Ct. 721, enf'g , Matter of the Zenith Corporation
and International Union, United Automobile Workers of America, Local No. 459, 8 N L R. B.
621: Central Greyhound Lines, Inc. of New York and Brotherhood of Railroad Trainmen,
et al , 27 N L R. B 976.
12 Foieman Robinson, the supervisor in the wet room, where the raw materials were
processed into unfinished hats, testified that he had observed Barnett at work and that
his work was not satisfactory according to acceptable standards of hat making but could
not say that Barnett was not following the orders of Foreman Beck. He further testified,
in substance, that the, efficiency in the plant as a whole fell below the ordinary standards
imposed in bat manufacturing plants.
13 As noted above the finishing room In the plant was not operating for the entire week
of May 10.
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D
committee of the Union for the purpose of soliciting the colored employees to
join it. While the committee were out on this mission they observed Mrs Myrtie
Pattillo, the secretary of Mrs. Sewell, also driving around in the sections where
the colored employees lived.
On May 11, between 7 and 8 a in., Pattillo called at the home of Kelly Glass,
the mother-in-law of Burnett. Barnett at the time was boarding with Kelly
Glass and testified that he was present during a conversation held between Mrs.
Pattillo and Kelly Glass at the time. He testified that Glass had two sons
employed at the plant and said that Pattillo asked Glass to tell her sons not to
join the Union. Pattillo then asked him "who were the ladies you were driving
around with" [yesterday]. "* * * was it Mrs. Scarbrough in there" and when
he replied in the affirmative, Pattillo asked him if he knew that Scarbrough had
been fired on the preceding Friday. It was raining at the time and when Pattillo
was leaving, she offered to drive him to the car line Barnett further testified
that on the way she said "Boykin, don't you join that Union," that it would
make Mrs. Sewell awful mad. Pattillo denied that any conversation had oc-
curred as testified to by Barnett, and testified that she only stopped at the Glass
place to ask Kelly Glass to recommend a laundress and that she couldn't recall
any conversation with Glass concerning the Union. Foreman Beek testified
without contradiction that he was working in the plant during the week his
department was closed down and that on Tuesday morning May 11, Mrs. Sewell
came into the finishing department and said "I think I will let Boykin (Barnett)
go." I said "we need him bad; these other blockers can't get [out] the hats we
need" and she turned away and walked off When it is considered that Pattillo
informed Mrs. Sewell about the information Kimbrough had given Pattillo
concerning the Union activities which led to Kimbrough being called into the office
to "verify" the latter's remarks to Pattillo a fair inference is raised that Pattillo
also informed Mrs. Sewell of Barnett's Union activities on May 10. A considera-
tion of the above facts, together with other evidence in the record and his
observation of the witnesses, has convinced the undersigned that the testimony
of Barnett concerning the remarks-of Pattillo, at the Glass home, on May 10, was
credible and true.
' A few hours after he had been talking with Pattillo on May 11, Barnett in-
jured one of his hands while chopping wood and was unable to resume his work
at.the plant when the finishing department reopened on May 17. On Tuesday, May
18, he visited the plant and reported to Pattillo that his injury prevented him
from working until his hand healed. She told him to report back when he was
able to work A few days later he went back and spoke to Mrs. Sewell He
testified, without contradiction, that he told her that the doctor said it would be at
least a week before he could work and testified that she said, "well come back
when your hand gets better and you can go to work." He further testified that
on May 26, the following day, he,went back to the plant, told Mrs. Sewell that
the doctor said he could return to work and that she then said, "I am sorry, I
have no work for you to do." Beck testified as follows concerning the discharge :
. . . Mrs. Sewell came to me and told me, she said, "Boykin is up yonder,
and I think we will let him go." And she said, "come on," and I went on with
her, and Boykin was there on the steps, and she said, "Tell Boykin we have
replaced him" and we had. We had put another man in his place."
Beck further testified, without contradiction, that no employee in the plant had
been discharged because of illness during the last 7 years. On May 27, the day
after his discharge Barnett returned to the plant and asked Mrs. Sewell for a
copy of his separation paper and his request was refused
14 Leroy Glass another employee who had worked on a blocking operation in the wet room
was placed on Barnett's job.
SEWELL HATS, INC. 289
The respondent Sewell contended, that Barnett was injured outside of its
pant while not engaged in the service of the respondent which injury prevented
him from carrying on his duties as an employee and that the respondent assigned
another employee to do his work. In view of the fact that Barnett's injury
would only prevent him from working for a short time and that the respondent
had never previously discharged any employee absent from work by reason of
illness, the undersigned does not accept this as the real reason for his discharge
From the above, it is clear that Barnett was outstanding for his Union activities
among the employees and the undersigned•concltides and finds that he wasidis-
charged for engaging in these activities.
1Villae Dodson had been regularly employed in the plant for about 71/2 years and
for the past 21/2 years of her employment she was operating a machine in the
finishing department which sewed the sweat bands on wool hats
As above mentioned Dodson was one of the group who approached Mrs Sewell
in February 1943, to ask for wage raises. This action on the part of Dodson
would tend to indicate to Mrs. Sewell that Dodson had taken part in the subse-
quent union activities The facts above show her to be outstanding among the
employees for such activities.
On June 2, 1943, the representation case, in which the Union and the respondent
were concerned, was heard in Atlanta. On that morning Dodson, Johnson and
Carithers asked Foreman Beck for permission to take the day off, in order to at-
tend the hearing Beck told them he could not excuse them without permission
from Mrs. Sewell, who was not in the plant at the time. Later on the same morn-
ing, Lillian Ford, the bookkeeper, came into the department and told Beck that
the three girls had been subpoenaed by the Union, to give testimony at the hear-
ing Beck told Ford to tell them that they might leave and they left the plant
at 12: 30 p. m. Beck testified, without contradiction, that Mrs. Sewell called
him shortly after and asked if the three girls had left the plant. Beck told her
that they had gone, whereupon she said that they did not have to appear at the
hearing until 3: 30 and that they should have worked until 3 p. in. Beck also testi-
fied that she called him again in a few minutes and told him to put employee Wingo
on the operation performed by Sissons, to put Sissons on the machine Elza Harris
was operating, and to assign Harris to the wool sweat operation, which latter
operation had been Dodson's regular assignment for over 2 years. Beck said
that he told the operators to take over the work as requested by Mrs. Sewell and
that Wiago and Sissons did so, but that Harris was not started on the changed
assignment. He further testified that about 5 minutes before quitting time, Mrs.
Sowell called'again and asked him if he had made the changes ordered. Beck's
uncontradicted testimony concerning the conversation between them on this oc-
casion was, as follows :
"Did you make those changes?" and I said "Not all of them," and she said,
"Why not?", and I said, "I won't make those changes," and she said, "I
mean for you to make them, I want you to go back and stop Elza Harris,
stop her before she leaves the plant and keep her there tonight and teach
here how to sew in sweats " And I said, "I won't do it. If you want some-
body to teach her to do it, you can get somebody else to do it, and I will
just quit this afternoon." i5
On June 3, 1943, the following day, Dodson's machine broke down shortly after
lunch. Altogether there were five machines on which the wool sweat operation
could be performed. Mrs. Harris, a trainee on the wool sweat operation was
"Beck ' s resignation became effective on this date, June 2, 1943, and be is no longer
employed at the plant.
567900-44-vol. 54-20
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
working on one of them and this machine was the only one in good operating
condition. Mrs. Sewell told Dodson to check out and come in to work on the
following morning. On this day, Friday, June 4, two Singer Sewing Machine
Company mechanics came to the plant and worked on Dodson's machine, but
were unable to repair it. Dodson testified that one of the repairmen told Mrs.
Sewell-"The man that'you want is Mr. Turner, he is in Birmingham and he won't
be back until Monday." Herbert Cain, one of the repairmen, testified that they
told Mrs. Sewell that Turner was the only man in the local Singer organization,
who could fix the machines, and said Turner was in Birmingham, but expected
in over the week-end and would probably come out on Monday [May 7]. E. C.
Cain, the other repairman, testified that he told Mrs. Sewell, Turner was familiar
with that type of machine, but that he was in Birmingham and would come out as,
soon as he returned, and that something was said concerning overtime. He
also testified that he told Mrs. Sewell he was sure that Turner would be there
on Monday. Dodson testified that after the above conversation with the Singer
mechanics, Mrs. Sewell told her "Willie, go home and I will tell you when to
come back to work." Carithers, a Board witness, testified that she was working
about 8 feet away from the place where Dodson and Mrs. Sewell were standing,
just before Dodson left on Friday, and heard Mrs. Sewell tell Dodson, "Willie,
I am just as sorry as I can be about this, but all I know for you to do is to check
out and I will call as soon as the machines are ready." Employee Astin, also a
Board witness, testified that on that Friday afternoon she heard Mrs Sewell
tell Willie to go home and wait until she called her. Mrs. Sewell testified that
she told Dodson, before the latter left, on Friday, "Well, I will assure you
that I will have this machine working by Monday morning, and you be back
at that time." Ethel Thomas, a witness called by the respondents, testified that
Mrs. Sewell, told Dodson that' she would have the machine repaired over the
week-end and for Dodson to come in to work on Monday morning. Mrs. Sewell's
son, R. A. Sewell, Jr., also testified that he heard his mother tell Dodson to come in
on Monday morning and that the machine would be ready to work on. The
machine was repaired by Turner on Sunday, June 6, 1943. J -
Dodson testified that on Monday morning, June 7, she decided to go to Atlanta
since she had not been notified to come in before leaving home at 9 a. m'0
She told her sister-in-law, who also worked at the plant, that she was going to
her doctor's office. That night her father-in-law, Tom Dodson, told her that Mrs.
Sewell had called about noon and had asked him where Dodson was. He testi-
fied, without contradiction, concerning the telephone conversation, as follows :
She [Mrs. Sewell] asked me where Willie was at, and I told her she had
gone to the doctor and she said that she was supposed to come into work
that morning, and I told her that Willie said she was to let' her know.
Well, she said, "There could have been a misunderstanding then.""
The testimony of the two Cains, the repairmen from the Singer Machine
Company, concerning their conversation with Mrs. Sewell on Friday, indicates
that at the time they were uncertain when Turner would return from Birming-
ham to repair Dodson's machine. Because of their uncertainty it is conceivable
that Dodson having overheard the conversations may have misunderstood Mrs.
Sewell's instructions. Also, Mrs. Sewell, in her telephone conversation with Tom
Dodson on Monday noon, admitted "There could have been a misunderstanding
then." After considering' all of the above testimony the undersigned concludes
that Dodson understood that she was to be notified when her machine was re-
10 Dodson testified on cross-examination that she had originally intended to stop at her
doctor's office, but changed her mind and went shopping instead.
17 Italics supplied.
SEWELL BATS, INC. 291
paired and that her absence from the plant on Monday was due to a misunder-
standing of her instructions, rather than a deliberate refusal to follow them.
Willie Mae Brooks, a clerk in the plant office testified that she called Dodson
on the telephone about 8 o'clock on Monday morning but received no answer.
Mrs. Sewell asked Florie Smith, Dodson's sister-in-law, who lived with Dodson,
where the latter was and Smith told her that Dodson had gone to the doctor's
office. Smith was ill and checked out of the plant about 9 a. m. after getting
permission from Mrs Sewell to leave. At the time Mrs Sewell did not request
her to tell Dodson that she wanted her. The respondent called the doctor's
office several times on Monday and learned that Dodson had" not been there.
Dodson reported for work on Tuesday morning, June 8, 1943, and testified
that on her way to her machine she met Mrs Sewell, whereupon the latter
said, "Willie, where were you yesterday?" Dodson replied, "I went to At-
lanta." Mrs Sewell then asked her, "Didn't I say that machine would be ready
for you Monday morning?" and Dodson replied, "No, you said that you would
call me when you had it fixed " According to Dodson, Dirs. Sewell then told
her to come to the office with her and on arriving there Mrs. Sewell told the
bookkeeper, "Mrs. Ford, give Willie her separation papers." Dodson received
a copy, and the reason given for her discharge was "not interested in her
work and off without permission." Mrs. Sewell's testimony concerning the
conversation in the finishing room substantially agreed with that of Dodson,
but Mrs. Sewell further testified that after arriving in the office, she told Dod-
son that she had been absent without permission and was not interested in'her
work and then asked Dodson where she.had been on Monday, whereupon the
latter told her that she had gone to see her doctor to take a hypodermic.78
She also said that Mrs. Ford was passing by at the time and she told Ford
to write out separation papers for Dodson.
Dodson testified that during her 71/2 years employment for the respondent, she
had been absent from work on a few occasions. On most of these occasions she
had notified Foreman Beck that she was staying out, but she also said that she
had not notified him concerning such absences on a few other occasions and had
never been reprimand@d. She also testified that she never heard of any plant
rule or policy concerning penalties to be imposed on employees who were absent
without permission. Foreman Beck also testified, in substance and without
contradiction, that Dodson had never remained away from the plant, excepting
when ill, if there was work for her to do, during the entire period that he was
foreman He also testified that he had never been told of any company rule
pertaining to absenteeism and said, no employee had ever been discharged for
being absent from work without permission 19 Mrs. Sewell testified, in substance,
that a general plant rule provided that discharge was the penalty for absence
from work without permission, but also admitted that no such rule had ever
been posted in the plant or that the employees generally been 'given verbal
notice of the rule. She could only name one employee, Ulysses Ooefield, who
11 Dodson was not called for rebuttal and this testimony by Mrs. Sewell is uncontradicted.
However, a consideration of the testimony given by both Sewell and Dodson, concerning
the conversation between them in the finishing room convinces the undersigned that
Sewell had determined to discharge Dodson before they went to the office. From a con-
sideration of all of the evidence pertaining to Dodson's case the undersigned concludes
that the Monday incident, and its collateral connections, was not the real or motivating
factor that caused her discharge.
11 Beck also testified that Alvin Mafett, a blocker working in his department, had fre-
quently been away from work and failed to report the cause of absence. He said that
he had complained about Maffett's absences on numerous occasions to Mrs Sewell, who,
would then call Maffett's home to ascertain the cause. Beck said he had never been
told to reprimand Maffett and that Maffett had not been discharged.
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been discharged for its violation. Coefleld was not discharged until July
1943, nearly a month after Dodson's discharge The undersigned concludes from
the above, that such a rule had never been established or enforced in the plant.
Under the circumstances set forth the undersigned cannot accept the reasons
given by Mrs. Sewell, for Dodson's discharge. She was shown to have been a
competent employee for over 7 years and was regularly engaged on the same
operation in the plant for the last 21/: years. It is significant, that when Dodson
was called away for a short time on June 2, 1943, to testify at the representation
hearing, Mrs Sewell ordered Foreman Beck to keep employee Harris in the plant
after working hours to teach her the operation which Dodson regularly performed.
It is likewise significant that Dodson should be summarily discharged because of
an alleged single day's absence from work without permission, in the absence
of a plant rule providing such a penalty. No contention was advanced that
her work was unsatisfactory. There can be no doubt that the respondent knew
of her Union activities, for Dodson had been subpenaed to testify, on behalf
of the Union, on June 2, 1943, in the representation case involving these parties.
Also Dodson was outstanding as a Union leader in the organizational activities
among the employees in May. Moreover, as shown above, her participation in
these activities were so openly conducted, that a fair inference arises that the
respondent was aware of them. The undersigned concludes and finds that the
respondent Sewell discharged Dodson because of her union activities and also
because she has given testimony at a Board hearing held under the provisions
of the Act.
Lovena Johnson had been regularly employed in the finishing department for
approximately 2 years, before her lay-off on June 11, 1943 Until November 1942,
she had performed nearly all of the operations involved in the finishing of wool
hats. At this time Janie Gerald, [also named as Jarrell in the record] the
regular straw hat operator terminated her employment and Johnson was as-
signed to that work. The volume of straw hats manufactured was comparatively
small and work on them was only carried on from November to June, while the
wool hat production was continuous throughout the year. Even during the
straw hat season, there was not always enough work available to keep Johnson
employed At these times, she was transferred to operations on wool hats.
From January to June 1943, about one fourth of her wages were earned on wool
hat operations. Also during this period, when production demands exceeded
Dodson's capacity to sew sweat bands on wool hats Johnson had been assigned
to assist in that operation. On June 11, 1943, she was laid off and told that
the reason was "lack of work." 20
As shown above, Johnson was the spokesman for the employees who asked
Mrs. Sewell for wage increases in February 1943, which fact leads the under-
signed to conclude that Mrs. Sewell would associate the advent of the Union
with Johnson. Also Johnson was outstanding for her activities on behalf of
the Union and permitted her home to be used to hold union meetings in. More-
over, as in Dodson's case, she was a witness for the Union at the representation
case before the Board. Hence there can be no doubt that the respondent, Sewell
had knowledge of her union activities
Respondent Sewell contended that Johnson was laid off because the straw sea-
son was over and also that Johnson had requested a vacation to visit her mother,
° Despite the fact that the straw hat season was practically over on June 8, 1943, when
Dodson was discharged, Mrs. Sewell then started training employee Elza Harris to per-
foiin the wool sweat band operation, although Johnson, an experienced operator, would
so soon be available to handle the work Also subsequent to Johnson's discharge, a new
employee named Novice, was hired to work regularly in the finishing department, whereas
Johnson was only given 3 days work fioni June 11 to the time of the hearing.
If
SEWELL HATS, INC. 293
who'resided in Texas. As to the latter contention Johnson had told Beck, in May,
that after the work on straw hats was over she wished to take two weeks off
to visit her mother. Nothing had been said by Johnson to warrant a belief
that she intended to remain away for an extended period.
From the above the undersigned concludes and finds that Lovena Johnson
was laid off on June 11, 1943, because she had engaged in concerted union activ-
ities and also because she had given testimony as a witness, for the Union, at a
hearing before the National Labor Relations Board on June 2, 1943.
Upon a consideration of the above and all other evidence in the record, the
undersigned finds that Boykin Barnett and Willie Dodson were discharged and
Lovena Johnson laid off by the respondent Sewell on the dates above mentioned,
and that the respondent Sewell has since refused to reinstate them because of their
activities on behalf of the Union and for the further reason that Willie Dodson
and Lovena Johnson gave testimony under the Act at a National Labor Relation
Board hearing, thereby discouraging membership in the Union and interfering
with, restraining, and coercing its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
D. The alleged discriminatory discharge
Julia Scarbrough began her employment on February 16, 1943. She inspected
hats for the first week and a half of her employment and was then assigned to
operate a small printing press. This work did not take all of her time and when
not operating the press she went back to inspecting hats. There had been no
complaints concerning the quality of Scarbrough's work, or her production
Early in April 1943, a friend of Scarbrough offered to get her a position at the
Candler Warehouse, the United States Quartermaster Depot in Atlanta. Shortly
thereafter, she told Foreman Beck, Mrs. Sewell, and the employees generally that
she expected to get this position in the near future and would quit when told to
report for her new work 81 She received her appointment to the government posi-
tion on June 5, 1943, and still continues to hold it.
Scarbrough was not with the employees who went to Mrs. Sewell in February
1943 to request wage increases, but later when they decided to organize they
asked Scarbrough to request her husband, a C. I O. member, to send a union
representative out to the plant to advise them concerning organization. She was
one of the group who met Gillman, the C I O. representative at the plant gate
during the lunch hour on May 7, 1943 On this occasion, after receiving a number
of application cards from Gillman, Scarbrough went over to a group of colored
employees seated near the gate, asked them to join the union and also invited them
to attend a union meeting at Lovena Johnson's house on Sunday, May 9'2
81 Scarbrough testified that she told Mrs Sewell in April that she expected to get a
government position and would leave when she received notification. She said that Mrs.
Sewell told her, "ire hate to lose you, I wish you would stay with us. Stay as long as
you can " Mrs Sewell testified that Scarbrough gave her a 2 weeks' notice that she was
going to quit and at the time said that she was going to get a job at the Candler Ware-
house. Y. H Hayes, a salesman for the company, also testified that on or about April
12, 1943, Scarbrough told him that the was working out her notice, because she was leaving
to take a better Job From the above the undersigned concluries that Scarbrough did
give a notice of an intention to quit, but had not stated a definite time and hoped to con-
tinue on her work until the new position was available.
re Employees Scarbrough, Dodson, Carithers, and Wingo testified that while they were
talking to the union representatives at the gate, Mrs. Sewell's son, Hugo, drove through
one or more tines and passed within a few feet of them Sewell testified that he usually
goes home to lunch at noon and may have passed the group, but if he did, paid no atten-
tion, because the employees are usually gathered there at noon time and that be did not
know until the hearing that the employees had gathered there to meet union organizers
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shortly after returning from lunch on the same day Foreman Beck went up to
the office and upon his return told Scarbrough that Mrs. Sewell was terminating
her employment that day. Scarbrough went to the office and testified without
contradiction, to a conversation with Mrs. Sewell, as follows :
Are you letting me go this afternoon? She said, "Yes today is as good as
any- other time to let you go, you know that you told me that you were
thinking of going to work for the Government." I told her that I had
mentioned it and said, "I have not gone yet" and would like to stay until
they called me . . . "If you let me go this afternoon, I will be without
work" . . . She said, "I have a man coming in here in your place that has
had some little experience in printing."
Mrs. Sewell denied that she had any knowledge of the meeting with the union
organizer at the plant gate, until she heard the testimony at this hearing.
Hugo Sewell, a 20-year-old son of Mrs. Sewell, who worked part time around
the plant as a machinery repair man took over the printing work. He was not on
the regular plant payroll, but his mother paid him for the work he did at the
plant. He had taken a course on printing at high school and said that he printed
the school paper on a press similar to that one used in the plant.
A consideration ofthe above has failed to convince the undersigned that
Scarbrough was discharged for union activities. Scarbrough had told Mrs.
Sewell in April that she expected to leave for a better job. Under the circum-
stances, Mrs. Sewell might be expected to give the work to her son, especially
since it was work he was already fitted to perform.
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 the operations of the respondent described in Section,I above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V THE REMEDY
Having found that the respondent Sewell, by its anti-union statements and
actions, interfered with, restrained, and coerced its employees in the exercise of
the rights guaranteed by Section 7 of the Act, the undersigned will recommend
that the respondent cease and desist therefrom and take certain affirmative
action designed to effectuate the policieg of the Act
Since the undersigned has also found that the respondent Sewell discriminated
in regard to the hire and tenure of employment of Boykin Barnett, Willie Dodson,
and Lovena Johnson, the undersigned will recommend that the respondent Sewell
reinstate Barnett, Dodson, and Johnson, and each of them, to his former or
substantially equivalent position, without prejudice of his seniority and other
rights and privileges It will be further recommended that the respondent Sewell
make whole Boykin Barnett, Willie Dodson, and Lovena Johnson for any loss
Foreman Beck, who quit his job under the circumstances shown above, testified that he
passed the group on his way to lunch and said he did not consider the gathering anything
unusual and did not know until several days later that the employees had been meeting
with union organizers. In view of Beck's testimony the undersigned accepts Sewell's
testimony above as credible and true. Scarbrough testified that when she went over to
talk to the colored employees she saw the bookkeeper , Lillian Ford , looking out of a back
plant window . Ford denied observing Scarbrough and also denied discussing the matter
with Mrs. Sewell . Ford impressed the undersigned as a trustworthy and truthful witness
and he accepts her testimony as being true.
SEWELL HATS, INC. 295
of pay they may have suffered by reason of the respondent Sewell's discrimination
against them, by payment to each of them of a sum of money equal to the amount
which he normally would have earned as wages from the date of his discharge to
the date of the respondent's offer of reinstatement, less his net earnings 23 during
said period.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following :
CONCLUSIONS OF LAw
1. Congress of Industrial Organizations 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 of
Boykin Barnett, Willie Dodson, and Lovena Johnson, thereby discouraging
membership in the Congress of Industrial Organizations, the respondent Sewell
has engaged in and is engaging in_ unfair labor practices, within the meaning
of Section 8 (3) of the Act.
3. By discriminating against Willie Dodson and Lovena Johnson because
they gave testimony under the Act, the respondent Sewell has engaged in and
is engaging in unfair labor practices, within the meaning of Section 8 (4) of
the Act.
4. By interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the respondent Sewell
has engaged in and is engaging in unfair labor practices, within the meaning
of Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.`
6. The respondent Sewell, by discharging Julia Scarbrough, has not engaged
in unfair labor practices, within the,meaning of Section 8 (3) 'of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, the undersigned recommends that the respondent,
Sewell Hats, Inc, its officers, agents, successors, and assigns shall :
1 Cease and desist from :
(a) Discouraging membership in Congress of Industrial Organizations, or
any other labor organization of its employees, by discharging, laying off, or
refusing to reinstate any of its employees, or in any other manner discrim-
inating in regard to their hire and tenure of employment, or any term or con-
dition of their employment ;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in 'concerted activities for the purpose of collective bar-
gaining, or other mutual aid or protection as guaranteed in Section 7 of the Act
23 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 than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer-
ica, Lumber and Sawmill Workers Union, Local 2590, 8 N. L R. B. 440. Monies received
for work performed upon Federal , State, county, municipal , or other work-relief projects
shall be considered as earnings . See Republic ,Steel Corporation v. N. L. R. B., 311
U. S. 7.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the undersigned finds will ef-
fectuate the policies of the Act:
(a) Offer to Boykin Barnett, Willie Dodson, and Lovena Johnson, immediate
and full reinstatement to their former or substantially equivalent positions, with-
out prejudice to their seniority and other rights and privileges ;
(b) Make whole Boykin Barnett, Willie Dodson, and Lovena Johnson, and
each of them, for any loss of pay he may have suffered by reason of the respond-
ent's discrimination against him, by payment to each of them of a sum of money
equal to that which he normally would have earned as wages from the date of his
discharge to the date of the respondent's offer of reinstatement, less his net earn-
ings" during said period;
(c) Post immediately in conspicuous places in its plant in Red Oak, Georgia,
and maintain for a period of at least sixty (60) consecutive days from the (late
of posting, notices to its employees stating : (1) that the respondent will not
engage in the conduct from which it is recommended that it cease and desist in
paragraph 1 (a) and (b) of these recommendations; (2) that the respondent will
take the affirmative action set forth in paragraph 2 (a) and (b) of these recom-
mendations; and (3) that the respondent's employees are free to become or remain
members of Congress of Industrial Organizations, and that the respondent will
not discriminate against any employees because of membership or activity in
that or any other labor organization
(d) Notify the-Regional Director for the Tenth Region in writing within ten
(10) days from the receipt of this Intermedite Report what steps the respondent
has taken to comply herewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies said Regional Director
in writing that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
It is further, recommended that the complaint, insofar as it alleges that the
respondent discriminated in regard to the hire and tenure of employment of
Julia Scarbrough, within the meaning of Section 8 (3) of the Act, be dismissed.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended, effective October 28,
1942-any party may within fifteen (15) days from the date of the entry of the
order transferring the case to the Board, pursuant to Section 32 of Article II
of said Rules and Regulations, file with the Board, Rochambeau Building, Wash-
ington, D. C., an original and four copies of a statement in writing setting forth
such exceptions to the Intermediate Report or to any other part of the record
or proceeding (including rulings upon all motions or objections) as he relies
upon, together with the original and four copies of a brief in support thereof.
As further provided in said Section 33, should any party desire permission to
argue orally before the Board, request therefor must be made in writing to
the Board within ten (10) days from the date of the order transferring the
case to the Board.
♦ HENRY J KENT
Trial Examiner
Dated October 8, 1943.
11 Sae footnote 23. supra