Sport-Wear Hoisery Mills

National Labor Relations Board - Board Decisions

Jun 4, 1942

41 N.L.R.B. 674 (N.L.R.B. 1942)

In the Matter Of SPORT-WEAR HOSIERY MILLS and AMERICAN FEDERA-
TION OF HOSIERY WORKERS (C. I. a)
Case No. C-0061.-Decided June 4, 1942
Jurisdiction : hosiery manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: anti-union statements of the forelady
attributed to the Company.
Discrimination: discharge of one employee because of his union membership and
activity rather than for his incompetence or for seeking to disturb the morale
of the plant; discharge of other employee because of his union membership
and activity rather than for his incompetence or because of the impossibility
of retaining both him and another more valuable employee as alleged by
Company.
Remedial Orders : reinstatement and back pay awarded.
Mr. James W. Dorsey, for the Board.
Mr. Reuel R. Webb, of Etowah, Tenn., and Mr. Saul 7'. Mallen, of
Chattanooga, Tenn., for the respondent. -
Mr. H. G. B. King, of Chattanooga, Tenn., and Mi. Francis B.
Ertel, of Charlotte, N. C., for the Union.
Mr. Harry H. Kuskin, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF TIIE CASE
Upon an amended charge 1 duly filed by American Federation of
Hosiery Workers, affiliated with the Congress of Industrial Organi-
zations, 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 November 22,
1941, against Sport-Wear Hosiery Mills, Etowah, Tennessee, herein
called-the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce,
within the meaning of Section 8 (1) and (3) and Section 2 (6) and
(7) of the National Labor Relations Act, 49 Stat. 449, herein called
'A charge and the amended charge were filed on January 22, 1941 , and October 21,
1941, respectively.
41 N. L. R. B, No. 133.
674
- SPORT-WEAR HOSIERY MILLS 675
the Act. Copies of the complaint and of notice of hearing thereon
were duly served on the respondent and the Union.
With respect to the unfair labor practices , the complaint alleged in
substance : ( 1) that the respondent discharged Gladys Horton on or
about January, 4, 1941 , Horace McConkey on or about July 10,
1941 , and Alf Roper on or about August 11, 1941 , and there-
after refused to reinstate them, because of their membership and
activities in the Union and their participation in concerted activities
with other , employees for the purposes of collective bargaining or
other mutual aid''and protection ; ( 2) that since March 1, 1940, the
respondent has urged employees not to become or remain members
of the Union ; has warned or threatened employees that union mem-
bership or activities would not benefit them but would cause loss of
time or pay , discharge , demotion , closing of the plant , or curtailment
of operations ; has told employees that the union officials are outside
agitators ' and that dues paid to the Union would only go to these
agitators ; has made statements to employees derogatory of the Union
or its officers and representatives ; and has promised employees better
jobs and job protection if they refused or withdrew from membership
in the Union ; and (3 ) that the respondent has, by the foregoing acts
and conduct , interfered with, restrained , and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
The respondent filed an answer to the complaint on December 2,
1941, denying that it had engaged in any unfair labor practices, and
alleging affirmatively that Horton, McConkey , and Roper had been
discharged for cause.
Pursuant to notice , a hearing was held at Athens, Tennessee, on
December 8 and 9, 1941 , before Tilford E. Dudley, the Trial Ex-
aminer duly designated by the Chief Trial Examiner . The Board,
the respondent , and the Union were represented by counsel and par-
ticipated in the hearing . Full opportunity to be heard , to examine
and cross-examine witnesses , and to introduce evidence bearing on
the issues was afforded all parties . During the hearing, a motion by
the Board to strike an exhibit attached to the respondent 's answer
was denied by the Trial Examiner . At the close of the Board's case,
the Trial Examiner denied a motion by the respondent to dismiss
the complaint . Counsel for the Board moved , during the hearing,
that the testimony of witnesses Carter, Crockett, and Hapton be
stricken . The Trial Examiner reserved ruling on these motions and
thereafter denied them in his Intermediate Report. At the close of
the hearing , both the Board and the respondent moved that the
pleadings be conformed to the proof . These motions were granted.
At the close of the hearing , the respondent also moved that the com-
plaint be dismissed with respect to Horton . The Trial Examiner
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reserved ruling on this motion and thereafter granted it in his Inter-
mediate Report. Rulings on other motions and on the admissibility
of evidence were made by the Trial Examiner during the course of
the hearing. The Board has reviewed all the rulings of the Trial
Examiner and finds that no prejudicial error was committed. The
rulings are hereby affirmed. At the close of the hearing, all parties
argued orally before the Trial Examiner. Counsel for the Board
and counsel for the respondent submitted briefs to the Trial Ex-
aminer on December 26, 1941, and December 30, 1941, respectively.
Thereafter, the Trial Examiner issued his Intermediate Repoit
dated January 21, 1942, copies of which were duly served upon the
respondent and the Union. He found that the respondent had en-
gaged in unfair labor practices affecting commerce, within the mean-
ing of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act,
and recommended that the respondent cease and desist therefrom
and that it offer reinstatement with back pay to two of the three
employees named in the complaint. As to the third employee so
named, Horton, the Trial Examiner, recommended dismissal of the
complaint.
On March 2, 1942, the respondent filed its exceptions to the Inter-
mediate Report. Thereafter, pursuant to notice duly served on the
parties, a hearing was held before the Board in Washington, D. C.,
on March 17, 1942, for the purpose of oral argument. The respond-
ent was represented by counsel and participated in the hearing. The
Union did not appear.
The Board has considered the exceptions submitted by the respond-
ent, and hereby finds them to be without merit insofar as they are
inconsistent with the findings of fact, conclusions of law, and order
set forth below.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE.RESPONDENT
The respondent is a Pennsylvania corporation, licensed to do busi-
ness in Tennessee, and engaged in the manufacture and sale of men's
and boys' socks and golf hose. It has manufacturing plants at New
Cunmberland, Pennsylvania, and at Maryville and Etowah, Ten-
nessee. This proceeding concerns only the plant at Etowah, where
the respondent normally employs about 200 workers. The principal
raw material used at the Etowah plant is cotton yarn. From July
1 to December 1, 1941, the respondent used at Etowah an average
of 4,000 pounds of cotton yarn per week and produced an average
of 9,000 dozen socks and hose per week. Approximately 75 percent
SPORT-WEAR HOSIERY MILLS 677
of the yarn so used is shipped to the respondent from outside the
State of Tennessee. Approximately 95 percent of the socks and hose
manufactured is shipped to customers outside the State. The re-
spondent concedes that it is engaged in commerce, within the meaning
of the Act.
II. THE ORGANIZATION INVOLVED
American Federation of Hosiery Workers is a labor organization
affiliated with the Congress of Industrial Organizations. It admits
to membership employees at the respondent's Etowah plant.
III. THE UNFAIR LABOR PRACTICES
A. .Backgi'oeind; interference, restraint, and coercion
In 1938 the respondent operated mills at Philadelphia and New
Cumberland, Pennsylvania. It had a closed-shop contract with the
Union in Philadelphia. However, the respondent's president testi-
fied : "They [the Union] compelled me to move my plant out of
Philadelphia . . . on account of the rate that we were compelled- to
pay in Philadelphia as compared with rates that were being paid in
other sections of the country . . . I am comparing the Union wage
rates with rates of mills that were not unionized, who were our
competitors." In the spring of 1938, the respondent was invited by
citizens of Etowah, Tennessee, to undertake operations there. The
Mayor's Industrial Committee, consisting of Frank M. Cantrell, Reuel
R. Webb, and three others, conferred with the respondent's president,
Richard D. Goldberg.
" The committee pointed out that residents of the town had formerly
received employment in the shops of the Louisville and Nashville
railroad, that the employees in the shops had engaged in a strike,
and that the railroad had since moved most of its work away, leaving
the town without any industry and the residents without employment.
Cantrell told, Goldberg about the strike, and said that he thought
the people had had enough and that he did not believe there would
be another one. The committee assured the respondent that plenty
of labor was available, offered to build a factory according-to the
respondent's specifications for which the respondent could pay over
a period of time, and promised the respondent exemption from local
and county taxes. These negotiations resulted in an agreement be-
tween the respondent and the Mayor's Industrial Committee. Ac-
cordingly, a corporation was formed called Etowah Industries,
Incorporated. The respondent purchased a small tract of land on the
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
edge of the town at a nominal price. On it Etowah Industries.
Incorporated, erected a factory building, using to a large extent labor
of the unemployed and those hoping to receive jobs in the mill on its
completion. Etowah Industries, Incorporated, then took a deed of
trust from the respondent to secure the cost of the building, and issued
bonds which were sold to people in the community or delivered in
payment for work rendered or material supplied on the building.
At the time of the hearing, Cantrell had three or four of these bonds,
with a face value of $25 or $50 each, and his family had bonds
aggregating $3,200 or $3,300 in face value. Probably one or two
hundred- other people in Etowah likewise hold bonds secured by
the deed of trust.
On April 1, 1938, the respondent commenced to operate its new
mill in Etowah. It continued its mill in Philadelphia for about 21/2
years and then closed it, maintaining operations thereafter only in
New Cumberland, Pennsylvania, and Maryville and Etowah, Ten-
nessee.
In about August 1938, the Union commenced to organize the re-
spondent's employees at Etowah. In December of that year, the local
of the Union elected Bill Turner as chairman and Horace McConkey
as vice chairman. Late in 1939, Turner ceased working for the re-
spondent and employee Brock was elected to his place. Thereafter,
Brock also left the mill and McConkey succeeded him as chairman.
McConkey served in this capacity and also as chairman of the griev-
ance committee until his discharge in July 1941. Employees Gladys
Horton and Alf -Doper were also active in the Union, the former
becoming chairman of the entertainment committee and the latter
serving on the committee which negotiated with the management con-
cerning grievances of employees of the respondent during a strike
at the mill in June 1941.
Employee Lucile Burnette testified that, at one time during the
Union's: organizing campaign, Vancie McKeehan, the respondent's
forelady for the wareroom, told her that she (McKeehan) would not
join the C. I. 0., and that at another time McKeehan told her that
it "was hard to get a job anywhere if you joined ,the C. I. 0."
Although McKeehan testified at the hearing, she did not deny making
these remarks. The Trial Examiner, who observed the witnesses,
.found that Burnette was a credible witness. We credit the testimony
of Burnette, as did the Trial Examiner. There remarks not only indi-
cated the respondent's opposition to the C. I. 0., with which the
Union is affiliated, but also contained an implicit threat that em-
ployees belonging to the C. I. O. might lose their jobs. No mention
was made of the employees' right to engage in union activities without
SPORT-WEAR HOSIERY MILLS 679
fear of retaliation,2 In fact, this right was in effect denied by
McKeehan's statements. In view of the circumstances under which
McKeehan's statements were made ,3 we find that by them the re-
spondent interfered with, restrained, and coerced its employees in the
exercise of the,rights guaranteed by Section 7 of the Act.
B. The discharges
1. Horace McConkey
McConkey started to work for the respondent in May 1938. His
job was to board stockings, which entailed pulling damp stockings
onto boards shaped to approximate the form of the human foot and
leg, where the stockings dried. This process resulted in the stockings'
being ironed into their ultimate shapes. Other boarders pulled damp
stockings onto heated metal forms which dried the stockings. There
were about 14 men, including both the wooden and the metal boarders,
in McConkey's department.
McConkey joined the Union in August or September 1938, shortly
after it commenced its organizational drive at Etowah. He was
elected vice chairman of the local when it had its first election in
December 1938. He served in this position for over a year and then
became chairman of the local. In November 1940 he became chair-
man of the Union's grievance committee. He continued as chairman
of both the local and the grievance committee until his discharge
in July 1941. Commencing in September 1940, he occasionally wore
a large C. I. O. union button, and later he wore it every day at the
plant. The Union held meetings every 2 weeks and sometimes every
week. Some of these meetings were held at McConkey's home, the
attendance varying from 4 to 30 employees. McConkey solicited
union memberships among the employees and signed up 6 or 7 mem-
bers. In February 1940, he testified in another Board` hearing in-
volving this respondent and- its discharge of another union member.4
His activity was so well known that Frank Cantrell, who was instru
mental in bringing the respondent's mill to Etowah, as found above,
and who- became mayor of Etowah, generally addressed McConkey
as "C. I. O." instead of by his correct name.
McConkey, as chairman of the grievance committee, first took up
with the respondent the case of Lucy Mansfield, an employee and
'The respondent 's attitude in this respect is indicated` by the testimony of its president,
Richard D. Goldberg, who, when asked at the hearing how he felt about unions, said :
"I have no objection to the union in the place as long as it does not affect me too much,
as long as it is carried out according to my idea of how it should be."
'See National Labor Relations Board v,. Virginia Electric & Power Go., 314 U. S. 469.
4Matter of Sport-Wear Hosiery Mills and American Federation of Hosiery Workers of
The Textile Workers of America, 23 N. L. R. B. 534. This case was settled by stipulation.
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union member, whom the respondent had "cut off." This was during
the latter part of 1940. On January 6, 1941, McConkey and the
grievance committee met with the respondent to protest against the
discharge of Gladys Horton 2 days before. The committee made an
effort to have Horton reinstated, but the respondent refused to
reinstate her.
In February 1941, McConkey became ill with influenza and there-
fore did not work for about a week. He then returned to the mill
and worked 11/.1, days, only to become ill again. He told Superin-
tendent Hall that he had come back to work too early after his
sickness and had become ill again. Hall told McConkey to go home
and stay there until he recovered. Five or six days later, on a
Friday, McConkey sent employee Buckner to the respondent with a
note saying that he was recovering from his illness and could go to
work on the following Monday. Hall gave the note to General Man-
ager Mallen, who instructed Buckner through Hall to tell McConkey
that he was no longer needed at the plant. Although Mallen at
the hearing denied receiving this message from McConkey about his
illness, we do not credit his denial in view of the general unreliability
of his testimony and of the contradictory testimony by McConkey
that he sent the message and by Hall that he informed Mallen of
the message. McConkey reported for work on the following Monday,
although he had received Mallen's instructions, but was not allowed
to return to work. Mallen testified' that there was room for McCon-
key to work in the mill at that time, but that he ordered McConkey
discharged because the latter had missed work before and Mallen
feared he would be absent frequently in the future. Mallen testified
further, however, that a great many employees-were guilty- -of loss
of time, that lie had not issued any instructions about- how much
time employees could lose in a given period, that McConkey was the
only one laid off for that reason, that there was no occasion to lay
off anyone else thereafter because the loss of time suddenly stopped,
and that it stopped without employees in the mill being told why
McConkey was dismissed. In any case, as a result of conferences
with a Field Examiner from the Board, the respondent soon there-
after reinstated McConkey to his former position.
Early in, 1941, while chairman of the Union's local, McConkey
was requested by several employees in the mill to investigate their
rights under the Fair Labor Standards Act. At union meetings,
members discussed claims that the 'respondent was violating the Fair
Labor Standards Act, and the Union filed charges with the authorities
responsible for enforcing that act. McConkey procured statements
from "experienced hands who had been refused work with the re-
spondent when it was allegedly using learners' permits, and assisted
SPORT-WE'AR HOSIERY MILLS 681
the government representative in making his investigation , conferring
with him about the situation and assisting to some extent in the sub-
mission of evidence of the respondent's violation of that act. In
April 1941, Mayor Cantrell told McConkey : "You fellows better cut
out some of that foolishness up there . . . You don't need no union
to get the Wage and Hour Law enforced."
On about April 15, 1941, Francis Ertel , union representative, came
to Etowah to arrange for a meeting of the respondent 's employees.
After some investigation, he received permission to -use the junior
high school auditorium for a fee of $10. Two days later , he returned
and tendered a $10 check in payment of the fee. The check, how-
ever, was refused with the statement that Mayor Cantrell had ordered
that the auditorium not be rented to the Union. Ertel , accompanied
by McConkey , thereupon visited Cantrell and asked him why he
refused to let the Union have the auditorium. Cantrell replied by
asking why Ertel was causing all the trouble . Ertel said that he
was not causing trouble, but only wanted to know why Cantrell was
preventing him from using the auditorium . The mayor thereupon
emphatically said : "So long as I am mayor of this town . . . the
damned CIO or any other labor organization is not going to get the
use of any public building here." 5 This and the preceding para-
graph are indicative of the atmosphere in which the Union sought
to function and of the extent to which McConkey publicly partici-
pated in union activities.
Early in June 1941 , the boarders in the respondent 's mill became
dissatisfied . They discussed the situation among themselves and
formulated their- grievances and a request for an increase in wages;
which McConkey then set forth in writing . The statement reached
the respondent 's president , Goldberg, who thereupon went to each
of the boarders , individually , talked to them about the dispute, and
attempted to settle it with them . He promised to adjust all of their
grievances with respect to ventilation and similar matters, but re-
fused to grant any raises . The boarders then went on strike. On
Thursday , June 12, a committee consisting of employees Alf Roper,
Cooper, and Partain, all wearing their union buttons , met with Gold-
berg- and-again presented and argued for the boarders ' request for
a raise in pay. Goldberg still refused to give the raise . This refusal
was reported to the men and they continued their strike.
On Monday , June 16, Goldberg met again with the committee,
agreed to give the boarders raises in pay on or before September 15,
1941, when other employees were scheduled to receive increases under
the Fair Labor Standards Act, and informed the committee that he
The record does not show whether a union meeting was ever thereafter held in any
public building in Etowah
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was going to hire other men to take the strikers' jobs in the plant if
the strike was not settled. The men agreed to these terms and went
back- to work on Tuesday, June 17, 1941. At the hearing Goldberg
denied having promised a wage increase in settlement of the strike,
but the overwhelming documentary and oral testimony, as the Trial
Examiner found, is to the contrary, and we do not credit Goldberg's
denial.
The next day, Wednesday, June 18, McConkey and the other pro-
duction employees left the mill at 3:30 p. in., their usual quitting
time. At 5:15 p. in. Forelady Vancie McKeehan smelled something
burning. She reported it at once, and a fire was discovered in one of
the cartons of hosiery near the boarding department. Goldberg tes-
tified that Hall reported to him "that they found a bog of matches
in two different places with strings tied around this box of matches
which served as a fuse." However, this testimony was, not substan-
tiated by Hall or by any other witness. The fire was extinguished
quickly, and resulted only in damage to some of the merchandise.
The next 'morning, when McConkey came to work, some of the
female employees asked him what the boarders were trying to do by
setting the mill on fire. When McConkey replied that he knew
nothing about it, one of the girls said, "I heard somebody tried to set
the mill afire . . . It looks like you boarders done it. It was right
up there right where you all worked." McConkey replied that that
was the first he had heard about' it. During the day McKeehan came
to the table at which McConkey worked, and talked with him about
the fire's origin. Both said they did not know how the fire started.
McKeehan testified that she and Mallen had been near the boxes
checking some work the afternoon of the fire before. they quit.
McConkey testified that McKeehan had told- him that she had seen
Mallen "near a box of socks with a cigarette in his hand, which later
caught fire." McKeehan denied telling that to McConkey. The
Trial Examiner, who heard and observed the witnesses, considered
McConkey the more credible. We credit the testimony of McConkey
and find, as did the Trial Examiner, that McKeehan made the state-
ment' attributed to her by McConkey. During the conversation,
McConkey suggested to McKeehan that the fire had been started in
order to cast reflection on the boarders, who had just returned from
their strike the day before, and asked her if Mallen had accused
the boarders. McKeehan replied that Mallen had not accused anyone.
Within the next day or so, McConkey, in talking with employee
Carter about the fire, told her that "some of them set it .. in order
to throw a reflection on us boarders because we were out on strike."
When Carter disagreed, McConkey said, "Well, if they didn't, they
had it done." To employee Hapton, McConkey remarked : "Mr.
SPORT-WEAR HOSIERY MILLS 683
Goldberg set it on fire or either had someone else to set the fire,
where it would show that some of the boarders done that when they
were out for higher wages." To employees Crockett and Stewart,
McConkey also said that "up at Knoxville they come out on a strike,
and in about 2 months after that they found half a case of dynamite
where the bosses had put it." He said that, after strikes, something
like that usually happened. McConkey denied, generally, 'ever hav-
ing said that the management had set the fire because they ' had
insurance on old equipment which they wanted to collect, or that
anyone connected with the respondent or its management Shad set the
fire for any reason, but he did not specifically deny the conversa-
tions with Carter, Hapton, Crockett, and Stewart. Of these four
conversations, however, the respondent learned only of the ones with
Crockett and Stewart before the discharge of McConkey.
Soon after the fire, Green, a State Fire Marshal, came to Etowah
to investigate its cause. Assisted by Clyde Rogers, the Etowah Chief
of Police, he proceeded to question numerous people at the mill about
the fire. The public was invited to tell Rogers or Green anything
they found out about its origin. After the first day of investiga-
tion, McConkey approached Rogers and Mayor Cantrell on the street
in Etowah and asked Rogers why he and Green had not interviewed
any of the boarders near whom the fire had occurred. Rogers re-
plied that Green would probably call them the next day. McConkey
then asked how many people they had questioned. He also said,that
he did not know who had started the fire, but he feared that there
was evidence-behind it which the investigators would not find, or even
try to find. He said that he could` almost name the person who had
started the fire, and that he thought it was an inside job done to
cash rreflection on_ the boarders who . had, just, returned from their
strike. McConkey also mentioned the fact that McKeehan had told
him she had seen Mallen standing with a 'cigarette in his fingers near
one of the boxes in question, shortly before it caught fire, and sug-
gested that the investigators might learn something if they inter-
viewed McKeehan. McConkey explained that the fire might be
considered a reflection on the Union, or on some of the men in his
department, and that he therefore wanted a full investigation to de-
termine who was really responsible for it.° Rogers testified that
McConkey also mentioned the fire insurance on certain old machines,
but we believe, as did the Trial Examiner, that this was not discussed.'
Approximately -a' week thereafter, probably on Friday, June 27, 1941,'
9 The fact that the Union or its members were at least under suspicion is indicated by
the testimony of the respondent 's president , Goldberg , that the respondent lsdsp6cted the
people in the - boarding department who seemed to be 'discontented ' and had only settled
their strike the day before
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when Rogers went to the mill to safeguard the distribution of the
regular pay roll, he told Mallen about McConkey's statements.
Rogers and the fire marshal did subsequently interview McConkey.
At that time McConkey did not name any person as being -respon-
sible,for the fire. Referring to the general talk that the boarders
were responsible for the fire, he ,pointed out that it had occurred
after the boarders had left the mill, and stated that they wanted a
full investigation of it and wanted to help the marshal find who,was
responsible in order to avoid having the blame placed on them.
McConkey suggested, that Green also inquire of Vancie McKeehan.-
Green did subsequently interview McKeehan, as suggested, and asked
her if Mallen had had as good a chance to start the fire as anyone
else. McKeehan replied that he had, and also told Green that Mallen
and she had been together near the boxes in question on the after-
noon of the fire. Despite the investigation thus conducted, neither
the responsibility for the fire, nor its cause, was ever determined.
Within the next 2 weeks, Goldberg called an employee, Marshall,
to his office and asked him if he had heard McConkey making state-
ments in his presence to the effect that some of the officials of the
mill had tried to set the fire in order to destroy the mill and collect
insurance on some old machines. Marshall denied having heard
McConkey make any such statements. Goldberg then called Mc-
Conkey into the conference and said to him : "What is this state-
ment you have been making about our machinery being old and
worn out and we were trying to burn this mill in order to get the
insurance off of it?" McConkey denied having made any such-
statement, but stated that he had talked casually with Marshall about
the machines and how "we never seen as many seconds made in a
mill." McConkey further denied ever having said that the respond-
ent had tried to burn its mill. He also-told Goldberg that he had
heard employee Wayne Wilson say to employee Fred Raper some-
thing about "why don't you go on out and give up?" 7 Goldberg
then called Wilson into the conference and asked him if he had made
any such statement. Wilson stated that he had, but only in a joking
way. Goldberg testified that he questioned Marshall and McConkey
in his office because he had heard that McConkey was spreading,
rumors to the effect that the respondent had started the fire in order
to collect insurance on old machines in the plant. He further testi-
fied that, after talking with Marshall, McConkey, and Wilson, he
believed their version of the situation and sent all three men, back to
work.
"Marshall testified that McConkey referred to Wilson 's remark as bearing on the question
of who was guilty of setting flue to the mill
SPORT-WEAR HOSIERY MILLS 685
However, Mallen then proceeded to obtain affidavits s from em-
ployees^ and others, in which the affiants stated that they had heard
McConkey blame Mallen for the fire. Mallen procured affidavits
from Rogers, Cantrell, Crockett, Stewart, and perhaps others. He
presented these affidavits to Goldberg and asked that the respondent
discharge McConkey. On July 10, 1941, Goldberg called McConkey
into the office and said he supposed that McConkey would like to
know why he was being discharged. McConkey replied that, if the
respondent had already made up its mind to discharge him, there
seemed..to be no necessity for his being given the reasons, that he
realized the respondent had been "raking and grabbing" to find
excuses for his discharge, and that he believed the respondent could
not find a reputable person to substantiate its charges against him.
McConkey's discharge then went into effect.
As stated above, McConkey was active in the Union from its start,
holding office from the first election, conferring with the respondent
on grievances, being chairman of the local for over a year before his
discharge, and participating in the strike of the boarders which
immediately preceded his discharge. From about January 1941 until
his discharge, McConkey was the most active ninon member in the
plant. Goldberg testified that he suspected that McConkey was a
member of the Union because he had been on a committee. Mallen
admitted that he knew of McConkey's membership. Hall testified
that he knew McConkey was in the Union because he wore a big
C. I. O. button at the plant.
The respondent alleges that it discharged McConkey because he
sought to disturb the morale of the plant, because he openly stated
that the respondent had sought to fire its own mill, and because he
was incompetent. The respondent offered no proof of McConkey's
alleged incompetence. We have found that McConkey reported to
the mayor and the chief of police, who were assisting in the investi-
gation of the fire, that McKeehan had told him that she had seen
Mallen near the boxes just before they caught fire. From McKee-
han's testimony, it is clear that both she and Mallen had been near
the boxes at that time. There seems to us to be nothing improper
in McConkey's having reported this information, or in his having
defended the Union against the gossip linking it with the fire. Of
more significance, perhaps, is the fact that the respondent's president,
Goldberg, after questioning McConkey and exonerating him of having
made accusations against the respondent, proceeded to consider affi-,
davits about McConkey and then to discharge him without giving him
8 Goldberg, testified that he obtained affidavits from five people before he talked to
Marshall and McConkey However, Mallen's testimony makes it clear, and we find, as
did the Trial Examiner, that the affidavits were in fact obtained by Mallen after
Goldberg 's exoneration of McConkey
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an opportunity to explain or deny the affidavits. Goldberg's failure
to do so is made more meaningful by the ,-fact that persons other
than McConkey had also, -as. the respondent -knew,, made, statements
regarding the fire similar to those attributed to McConkey. Mallen
testified that Case, a restaurant keeper, said, "Hey, I hear you set fire
,to the mill,"- and that a gasoline station attendant said that he had
heard that Mallen "was about to collect a vast fortune in insurance."
In addition, employee Hyde testified that she told Roper that she
saw Mallen near where the fire occurred, and that Roper told that
to the investigator. There is 'nothing in the record to indicate that
the respondent believed or had reason to believe that these statements
by other persons were based on or caused by anything McConkey had
said. Nevertheless; beyond obtaining the affidavits as to McConkey,
the respondent apparently made no effort to investigate these state-
ments or to trace them to their source. We find, as did the Trial
Examiner; that the respondent seized upon the conflicting rumors
about the, fire as an excuse for discharging McConkey and thus
ridding'itself of the Union's chairman.
We find that, by discharging Horace McConkey on July 10, 1941,
the respondent discriminated in regard to his hire and tenure of
employment,, and thereby discouraged membership in the Union and
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
2. Alf Roper
Roper was employed by the respondent in 1938. He worked in the
same department as McConkey. On January 16, 1939, he joined
the Union. When the boarders met to formulate their grievances and
their request for higher pay on Or about June 11, 1941, as described
above, Roper was appointed by Ertel, the union representative, to
membership on the committee which met with the management. He
was, present at both meetings with Goldberg. The other committee
members and -he wore their buttons on each occasion. When Gold-
berg refused to grant the demand for wage increases and the boarders
went on strike, Roper participated in the strike and served on the
picket line.
On Thursday, July 24, 1941, employee Ruby Wilson Teffeteller
asked Roper whether he knew where she could buy a second-hand
car. Roper' told her that one of the men with whom he worked had
a car that might interest her, and called him over. That afternoon,
dui ing working hours, employee Jewell Hyde, who was reputedly a
close friend of Roper, approached Teffeteller and asked if she "got
a date" with Roper during the noon conversation. Teffeteller denied
attempting to -get a date. When Hyde insisted that, she had, Teffe-
SPORT-WE'AR HOSIERY MILLS 687
teller told Hyde the gist of the noontime conversation. Hyde con-
tinued to disbelieve Teffeteller and swore at her. Teffeteller there-
upon struck Hyde, and a fist fight ensued. Hyde worked the rest
of that day, but did not report for work on the following day. The
next Monday, she went to the nearby town of Cleveland, Tennessee,
and on Wednesday, July 30, she started to work for a concern in
that town. On Saturday, August 2, she returned to the respondent's
mill for her pay and left the following letter in the respondent's
office, addressed to its president, Goldberg :
Mr. Goldburg-Alf Roper is the cause of Ruby & me having
that trouble the other day he has been trying to run over me for
the last two months and as long as he works up there I will not
work another day he tried to run over me week before last up
there & I. told Mr. Hall on him. He told me that Twam Mallen
was the very sun of a bitch that set the mill on fire. I think
when you fired Horace McConkey you fired the wrong one.
And Bert Brooks didn't quit to drive a truck some of the
boarders threatened him you know he went to work the day the
strike was settled I heard Alf call him a D-yellow scab the day
he went to work. So you can do as you like you can either work
me or him but not both of us I can get a, job most anywhere.
JEWELL HYDE.
On Monday, August 4, Goldberg found the letter awaiting him at
the office. After a conference with Mallen and Hall, he decided
to discharge Roper. He thereupon called Roper to the office, and
told him that the responsibility for the fight between Hyde and
Teffeteller was being attributed to him. Roper denied having had
anything to do with the fight. Goldberg stated that he had a letter
from Hyde, who was at Cleveland, saying that Roper was to blame
for the fight and that she would not work for the respondent if
Roper's employment was continued. Goldberg commented that Hyde
was a looper and loopers were not available, that Roper was a boarder
and boarders,were available, and that consequently he would be com-
pelled to discharge Roper. Roper replied that Goldberg would regret
the discharge, that he had "worked" people in the mill without put-
ting them on the pay roll or paying them, and that he would get
into trouble. Goldberg defied Roper to state the names of any such
people, and Roper named one, Newman. Roper's discharge then
went into effect.
Sometime after Roper's discharge, Hyde came back to work for
the respondent. Upon her return, eight of the respondent's loopers
quit, saying that they would not work in the mill if Hyde worked
there. Hyde was thereupon dismissed in order to satisfy the other
loopers.
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent's answer alleges that jealousy between Roper's wife
and Jewell Hyde was one of the reasons for his discharge. The
answer also mentions another fist fight that had occurred in the late
spring of 1941 between Mrs. Roper and Sally Parrot, both of whom
were employees at the mill. Mallen had stopped that fight and had
sent Mrs. Roper home, but later, on the solicitation of Roper, had
transferred her to a looping department maintained by the respond-
ent in Englewood, Tennessee. The respondent urges that Roper-was--
the cause of both fights and of a general disturbance among the
employees, but there is no credible evidence to support this claim.
Nannie Mae McConkey, forelady of the loopers, testified that on each
occasion she heard the fighting and ran to see what was happening,
but that the fighting had ended before she even reached the scene.
Both Foreman Lingerfelt and Forelady McKeehan testified that they
did, not remember ever seeing Roper visiting in the loopers' depart-
ment, where the women in question worked, but that they had seen
Hyde go to the boarders' department, where Roper worked. Their
testimony was corroborated by Roper, who further testified that he
had reported Hyde to Superintendent Hall for "bothering us people
from working over there." Mallen admitted that Hyde was involved
in each of these disturbances and that she was a "pretty disturbing
influence there herself." Although there is evidence tending to show
that some of the women employed by the respondent quarreled over
Roper, there is no evidence that he was responsible for these quarrels.
Furthermore, the record shows, as the Trial Examiner found, that
the respondent did not ordinarily concern itself with such matters,
and we find that the respondent was not in fact concerned with the
quarrels when it discharged Roper.
The respondent maintains, further, that it discharged Roper be-
cause of the impossibility of retaining both Hyde and'him as em-
ployees at the same time, and that, since Hyde was the more valuable
employee, it became necessary to let Roper go. We are not per-
suaded that this explains Roper's discharge. Since Hyde had quit
work after her fight with Teffeteller and had secured other em-
ployment, it is clear that there must have been some uncertainty as
to whether Hyde would return to work even if Roper were discharged.
Nevertheless, without making any express inquiry of Hyde at the
time and without receiving any explicit assurance from her that she
could or would return to work, the respondent discharged Roper
immediately upon receipt of Hyde's letter. That the respondent was
motivated by a desire to rid itself of Roper rather than by the neces-
sity of choosing between Hyde and Roper is made plain by the fact
that- the respondent made no effort to recall Roper following its
subsequent dismissal of Hyde and by its unexplained delay in dis-
SPORT-WE'AR HOSIERY MILLS 689,
charging Roper after the fight between Hyde and Teffeteller. As
found above, the fight took place on July 24, and Hyde left the same
day. The respondent's president, Goldberg, and its general manager,
Mallen, both testified that Roper was discharged after the receipt of
Hyde's letter, although their testimony differed as to the date of its re-
ceipt. Hyde testified that she delivered the letter on August 2, 9
days after the fight. Roper was discharged on August-4, which tends
to substantiate Hyde's testimony that the letter was delivered on Au- .
gust 2. Mallen learned about the facts surrounding the fight on the
day it happened, July 24, and Goldberg was told on that day or
the next day that Roper was the cause of the fight. Nevertheless, the
respondent waited 11 days, until after it had received Hyde's letter,
before discharging Roper. When it finally did so, it stated on
Roper's separation notice, as a further reason for his discharge : "pass;
ing slanderous remarks against officials of Co.," although the only evi-
dence offered in support of this assertion was the unconfirmed state-
ment to that effect appearing in Hyde's letter and the remarks of
Roper to Goldberg after the latter had informed Roper that he was
being- discharged. We are convinced that these were only plausible
pretexts seized upon by the respondent to justify its discharge of
Roper.°
In view of the respondent's knowledge of Roper's membership and
activity in the Union, Roper's active participation in the strike of
June 11-17, 1941, not long prior to his discharge, and the unpersuasive
nature of the reasons assigned by the respondent for Roper's dis-
charge, we are convinced and we find, as did the Trial Examiner,
that the respondent discharged Roper because of his union member-
ship and activity. By thus discharging Roper, the respondent dis-
criminated in regard to his hire and tenure of employment, and
thereby discouraged membership in the Union, and interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
3. Gladys Horton
In his Intermediate Report, the Trial Examiner found that, al-
though the case is not free from doubt, the respondent discharged
Gladys Horton on January 4, 1941, because she had disregarded in-
structions given her by the respondent's president, Goldberg, and
not because of her union membership and activity. The Union has
taken no exception to this finding or to the Trial Examiner's recom-
mendation that the complaint be dismissed as to Horton. We have
considered the record, and we agree that it does not support the alle-
9 No evidence was offered at the hearing by the iespondent in support of the allegation
in its ans« et that another season for Ropes s discharge was his general incompetence
463892-42-vol. 41-44
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gation that Horton was discharged because of her union membership
or activity. We shall, therefore, dismiss the complaint as to her.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the respond-
ent described in Section I above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among -the several
States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and
to take affirmative action designed to effectuate the policies of the
Act.
We have found that the respondent discriminated in regard to
the hire and tenure of employment of Horace McConkey and Alf
Roper because of their union membership and activity. To effectu-
ate the policies of the Act, we shall order the respondent to offer them
full and immediate reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority and other
rights and privileges, and to make them whole for any loss of pay
they have suffered by reason of 'the respondent's discrimination by
payment to each of them of a sum of money equal to the amount he
would normally have earned as wages from the date of the discrim-
ination to the date of the offer of reinstatement, less his net earnings
during such period.10 Since we have found that the respondent did
not engage in unfair labor practices by discharging Gladys Horton,
we shall dismiss the complaint as to her.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. American Federation of Hosiery Workers, affiliated with the
Congress of Industrial Organizations, is a labor organization, within
the meaning of -Section 2 (5) of the Act.
10By "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
elsewhere 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 America, 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.
SPORT-WE'AR HOSIERY MILLS 691
N. 2. By discriminating in regard to the hire and tenure of employ-
ment of Horace McConkey and Alf Roper, and thereby discouraging
membership in American Federation of Hosiery Workers, affiliated
with the Congress of Industrial Organizations, the respondent has
engaged in and is engaging .in unfair labor practices, within the
meaning of Section 8 (3) of the Act.
3. By interfering, with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7, of the Act, the
respondent has engaged.in,and is, engaging in unfair labor practices,
,within, the meaning of Section-8. (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.
5. By discharging Gladys Horton, the respondent has not engaged
in unfair labor _practices, within the meaning of Section 8 (3) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Sport-Wear Hosiery Mills, Etowah, Tennessee, and its
officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in American Federation of Hosiery
Workers, affiliated with the Congress of Industrial Organizations,
or in any other labor organization of its employees, by discharging
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 National
Labor Relations Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
(a) Offer to Horace McConkey and Alf Roper immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges;
(b) Make whole Horace McConkey and Alf Roper for any loss
of pay they have suffered by reason of the respondent's - dis-
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
crimination against them, by paying to each of them a sum of money
equal to that which he would normally have earned as wages during
the period from the date of his discharge to the date of the respond-
ent's offer of reinstatement, less his net earnings during said period;
(c) Post immediately in conspicuous places throughout its plant
at Etowah, Tennessee, and maintain for a period of at least sixty (60)
consecutive 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 to cease and desist ^n paragraph ]" (a) and (b)
of this Order; (2) that the respondent will take the affirmative action
set forth in paragraph 2 (a) and (b) of this Order; (3) that the re-
spondent's employees are free to become or remain members of Amer-
ican Federation of Hosiery Workers, affiliated with the Congress of
Industrial Organizations, and that the respondent will not discrimi-
nate against any employee because of membership or activity in that
organization;
(d) Notify the Regional Director for the Tenth Region in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby
is, dismissed insofar as it alleges that Gladys Horton was discharged
because of her membership or activity. in the Union.