Tennessee Knitting Mills, Inc.

National Labor Relations Board - Board Decisions

Mar 15, 1950

88 N.L.R.B. 1103 (N.L.R.B. 1950)

In the -latter of TENNESSEE KNITTING MILLS, INC. and AMERICAN
FEDERATION OF HOSIERY WORKERS
Case No. 10-CA-986.-Decided March 15, 1950
DECISION
AND
ORDER
On June 23, 1949, Trial Examiner Hamilton Gardner issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner found that the
Respondent had not engaged in certain other alleged unfair labor
practices and recommended that those allegations of the complaint
be dismissed. The Respondent filed exceptions to the Intermediate
Report and a brief in support of its exceptions. The General Counsel
filed exceptions to the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this proceeding to a three-member panel [Members Houston, Rey-
nolds, and Murdock].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing, and finds that no prejudical error was committed.
The rulings are hereby affirmed. The Board has considered the in-
termediate Report, the exceptions and the brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner insofar as they are consistent with
this Decision and Order.
1. We reject the Respondent's contention that Section 10 (b) of the
Act bars the -Board from finding violative of the Act any conduct
which occurred more than 6 months before the filing of a charge spe-
cifically alleging that conduct as an unfair labor practice. For reasons
stated in our decision in the case of the Cathey Lumber Company, 86
NLRB 157 , we conclude that we may. base ,in unfair labor practice
88 NLRB No. 194.
1103
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
finding upon any conduct which occurred within a 6-month period be-
fore the filing of a charge asserting that the Act has been violated
although the charge does not specifically set forth such conduct, pro-
vided the complaint which issues pursuant to the charge alleges the
conduct as an unfair labor practice. As the original charge in this
proceeding was filed August 18, 1948, Section 10 (b) only extinguishes
liability for acts which occurred earlier than about February 18, 19481
2. We agree with the Trial Examiner's conclusion that the Respond-
ent violated Section 8 (a) (1) of the Act. We base our conclusion
upon the following coercive conduct of the Respondent's managerial
and supervisory personnel: 2 (a) President Gordon's interrogation of
members of the Committee on March 1, 1948; 3 (b) Supervisor Sha-
piro's statement to employee Frank C. Howell about July 16, 1948, that
Howell was "playing with fire and liable to get burned" and that it
would be a good idea for Howell to keep his mouth shut; (c) Super-
visor Whitehurst's statement to employees Fred H. Cathey and Louise
Cathey that they were "fixin to get out on a limb and get it chopped
off behind" them.4
3. We agree with the Trial Examiner's conclusion that the Re-
spondent's conduct relating to the Committee did not violate Section
8 (a) (2) of the Act.
The Committee was formed and functions for the purpose of nego-
tiating with the Respondent concerning wages and conditions of
employment, and we find that it is a labor organization with the mean-
ing of Section 2 (5) of the Act. We do not find, however, that the
Respondent's dealings with the Committee constitute an unfair labor
practice. Section 10 (b) of the Act prohibits our finding unlawful any
conduct of the Respondent which occurred earlier than about February
18, 1948. The only act of the Respondent after that date in direct
support of the Committee was its permitting the 1949 election of com-
I We also reject the Respondent's contentions that the amended charge in this case does
not meet the requirements of Section 203.12 (d) of the Board's Rules and Regulations and
that therefore the complaint which is based upon such charge is improper.
2 In view of our reliance upon this conduct, we consider it unnecessary to pass upon
whether certain other acts of the Respondent set forth in the Intermediate Report were
coercive. We construe the Trial Examiner's statement that he gave "little weight" to
Cathey's testimony that Gordon stated he might have to shut down the plant, to mean that
the Trial Examiner discredited such testimony. In making our 8 (a) (1) finding we do
not rely upon the case of N. L. R. B. v. Virginia Electric & Power Co., 314 U. S. 469, cited
by the Trial Examiner and decided before the enactment of Section 8 (c) of the Act which
the Respondent contends protects the statements made by its supervisors.
3 We have previously stated our conclusion that interrogation of employees both as to
union membership and activities and as to views or opinions concerning unionism is
coercive within the meaning of Section 8 (a) (1) of the Act. See: Minnesota Mining &
Manufacturing Co., 81 NLRB 557, enfd. 179 P. 2d 323 (C. A. 8) ; Standard-Coosa-Thatcher
Company, 85 NLRB 1358; Trans-Oil, Inc., 86 NLRB 136.
4 Member Reynolds would not find Whitehurst's statement coercive under the circum-
stances in which it was made.
TENNESSEE KNITTING MILLS, INC. 1105
mittee members to be conducted during working hours with the use of
company facilities. We consider this act of alleged assistance to the
Committee insubstantial. We are of the opinion that the evidence pre-
sented concerning the Respondent's relationship to the Committee
after February 18, 1948, is insufficient to support an unfair labor prac-
tice finding. It is unnecessary for us to consider what our conclusion
would be were we free to base our finding upon the Respondent's total
conduct in connection with the Committee. We shall dismiss the com-
plaint insofar as it alleges a violation of Section 8 (a) (2) of the Act.
4. We agree with the Trial Examiner's conclusion that the Respond-
ent discriminatorily discharged Fred H. Cathey in violation of Section
8 (a) (3) of the Act.
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, Tennessee Knitting Mills,
Inc., Columbia, Tennessee, its officers, agents, successors, and assigns
shall :
1. Cease and desist from :
(a) Discouraging membership in American Federation of Hosiery
Workers, or in any other labor organization of its employees, by dis-
criminatorily discharging employees or by discriminating in any other
manner in regard to their hire or tenure of employment or any term or
condition of employment;
(b) Interrogating its employees concerning their union affiliations,
activities, or sympathies or in any manner interfering with, restrain-
ing, or coercing its employees in the exercise of the right to self-
organization, to form labor organizations, to joint or assist American
Federation of Hosiery Workers or any other labor organization, to
bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection as guaranteed in Section 7
of the Act, or to refrain from any or all of such activities, except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as
authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Fred H. Cathey immediate and full reinstatement to
his former position or to a substantially equivalent position 5 without
6 See The Chase National Bank of the City of New York, Sane Juan, Puerto Rico, Branch,
65 NLRB 827.
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prejudice to his seniority or other rights and privileges, and make him
whole for any loss of pay he may have suffered by reason of the Re-
spondent's discrimination against him by payment to him 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 earnings 6 during such period ;
(b) Post at its plant in Columbia, Tennessee, copies of the notice
attached hereto and marked Appendix A.7 Copies of said notice, to be
furnished by the Regional Director for the Tenth Region, after being
signed by representatives of the Respondent, shall be posted by the
Respondent immediately upon receipt thereof, and maintained by it
for sixty (60) consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material;
(c) Notify the Regional Director for the Tenth Region in writing
within ten (10) days from the receipt of this Order what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint insofar as it alleges that
the Respondent violated Section 8 (a) (2) of the Act be, and it hereby
is, dismissed.
MEMBER HOUSTON, dissenting in part :
I disagree with the conclusion of my colleagues that the Respondent
did not violate Section 8 (a) (2). In my opinion, the Respondent's
conduct in connection with the Committee since February 18, 1948,
when viewed in the light of the immediately preceding events, consti-
tuted substantial assistance to and domination of the Committee of
the very nature proscribed by the Act.
The Committee had its genesis in November 1947, during a volun-
tary walk-out at the Respondent's plant. At that time, the employees'
strike committee advanced the idea of a permanent organization to
deal with management on labor matters, and the Respondent's officials
promptly indicated that they were both agreeable to and "delighted"
with the proposal. Significantly, union organizers had made their
appearance in front of this relatively small plant, in the role of ad-
visers to the strikers on the conduct of their walk-out, at the time of
the Respondent's speedy acceptance of the Committee.
Thereafter, the Respondent's officials undertook actively to shape
and implement the proposed organization. They "suggested" to the
6 See Crossett Lumber Co., 8 NLRB 440.
7 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words "A DECISION AND ORDER," the words "DECREE
OF THE UNITED STATES COURT OF APPEALS ENFORCING."
TENNESSEE KNITTING MILLS, INC. 1107
strike committee that the new organization include representatives
from each department and that these representatives be selected by
secret ballot. Company officials, at a meeting of all the plant person-
nel in the Armory, took it upon themselves to inform the employees
concerning the plan and announced that the election of a permanent
committee would be held within "a week or so." And subsequently, in
the latter part of December 1947 or early in January 1948, the Re-
spondent permitted an election to be conducted among the employees
during working hours, on company property, and with company mate-
rials, and the results were posted on the company bulletin boards. The
sole issue voted upon by the employees was the selection of a fellow
worker in each department to serve on the Committee. The employees
were never afforded an opportunity, during this election or at any time
thereafter, to express their desire as to whether or not they wanted
the Committee to represent them.
Following this election, the Committee met and adopted a "consti-
tution and by-laws" drawn pursuant to agreement with the Respond-
ent." Revealing in this regard are the terms limiting the Committee
to "employees . . . from the various departments"; confining the
meetings with the Respondent to those "grievances which both can
find proper and are worthy of negotiation"; adding that "This is the
method deemed proper by the employees and Management"; and fur-
ther providing that the Committee "has been duly recognized by the
local plant Manager, Mr. Frank Cover, as the bargaining agent."
There were no provisions for dues, membership cards, general meet-
ings of employees, instruction of representatives, or strike action.
On January 8, 1948, at its first meeting with the Committee, the
Respondent formally acknowledged its recognition of that organiza-
tion as the sole bargaining representative of its plant employees. Yet
at no time did the Respondent request, nor was it furnished, any proof
of majority representation by the Committee.
While concededly Section 10 (b) bars our finding that the above con-
duct of the Respondent, which occurred before February 18, 1948,
constituted an unfair labor practice, it is against this background of
domination, interference with, and support of the Committee since
its virtual inception that we must proceed to appraise the Respond-
ent's subsequent activities. As stated in Axelson Manufacturing Com-
pany, 88 NLRB 761: "Events obscure, ambiguous, or even mean-
ingless when viewed in isolation may, like the component parts of an
'Committee Chairman Rayburn testified, without contradiction, that the constitutions
and bylaws, a copy of which was received by the Respondent, were "agreed upon by both
the committee and management." In addition, the preamble thereof specifically reads :
"As by agreement between the management and employees of Tennessee Knitting Mills,
Inc. ..
882191-51-71
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equation, become clear, definitive, and informative when considered
in relation to other action. Conduct, like language, takes its meaning
from the circumstances in which it occurs."
With respect to the period after February 18, 1948, it should be
observed initially that the Respondent has never disavowed or dis-
established the Committee. On the contrary, the Respondent has
continued regularly to meet and deal with that group as the exclusive
bargaining representative of its employees .9 Moreover, the structure
of the Committee, under which, as already indicated, the electors and
representatives were in effect required to be employees, continued
without change. Consequently, the Respondent, by virtue of its
power to hire and discharge, has maintained its dominant position
over the Committee.lo
Also, within the critical period, the Respondent's unlawful sup-
port of the Committee has taken the indirect, but nonetheless effective,
form of coercive opposition to the Union during the latter's organiza-
tional campaign. As found by the majority, to which findings I fully
subscribe, President Gordon interrogated employees as to whether
they thought "We could get along without outside interference";
Supervisors Shapiro and Whitehurst impliedly threatened employees
with economic loss if they continued to support the Union; and the
Respondent discharged employee Cathey because of his activity on
behalf of the Union. Obviously, such conduct served as assistance to,
and was calculated to perpetuate the actual existence of, the "inside"
organization."
Finally, in January 1949, the Respondent again allowed the Com-
mittee to hold its internal election during working hours, on company
premises, and with the aid of company facilities and equipment. The
Board and the courts have frequently recognized the granting of such
9 Cf. Standard Oil Company of California, 61 NLRB 1251 , 1283, in which the Board
said : "The Association , which was formed prior to the passage of the Act, continued in
existence after July 5, 1935, without substantial change in structure or operation, and,
admittedly , has never been disavowed or disestablished . In view of the status of the
Association , the passage of the Act made it incumbent upon the Respondent completely
to disestablish the Association and to make clear to the Employees that they were free to
exercise their right to self -organization without interference ." See also N. L. R. B. v.
Southern Bell Telephone & Telegraph Co., 319 U. S. 50 , and McLain Fire Briok Co., 36
NLRB 1, enfd. 128 F . 2d 393 (C. A. 3).
10 Cf. Axelson Manufacturing Company , supra, Madix Asphalt Roofing Corp., 85 NLRB
26; The Carpenter Steel Company , 76 NLRB 670 ; and Wyman-Gordon Company, 62 NLRB
561, enfd. as mod. 153 F. 2d 480 (C. A. 7).
11 See Hamilton -Brown Shoe Co. v. N. L. R. B., 104 F. 2d 49, 53 ( C. A. 8), where the
court noted : "Manifestly , an employer may give support and comfort to a particular group
of its employees by pursuing a policy of discharging those who refuse to join that group,
or who join a rival , obnoxious to the employer. " To the same effect, see N. L. R. B. v.
Mt. Clemens Pottery Co ., 147 F. 2d 262 , 266 (C. A. 6).
TENNESSEE KNITTING MILLS, INC. 1109
favors by an employer as material indicia of support interdicted by
the Act 12
Accordingly, in view of the Respondent's failure to disavow or
disestablish the Committee, its maintenance of a dominant position
over that organization, its coercive opposition to the "outside" Union,
and its dealing with and providing special privileges to the Com-
mittee, all of which occurred after February 18, 1948,13 I would find,
contrary to the opinion of the majority, that the Respondent violated
Section 8 (a) (2) of the Act.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT
(a) Discourage membership in AMERICAN F EDERATION OF HO-
SIERY WORKERS, or in any other labor organization of our
employees, by discriminatorily discharging employees or by dis-
criminating in any other manner in regard to their hire or tenure
of employment or any term or condition of employment;
(b) Question our employees concerning their union affiliation,
activities, or sympathies ;
(c) In any other manner interfere with, restrain, or coerce
our employees in the exercise of their right to self- organization,
to form labor organizations, to join or assist AMERICAN FEDERA-
TION OF HOSIERY WORKERS or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection as guaranteed
in Section 7 of the Act, or to refrain from any or all of such
activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as
a condition of employment as authorized in Section 8 (a) (3)
of the Act.
11 N. L. R. B . V. Jas . H. Matthews & Co., 156 F. 2d 706 (C. A. 3), enfg. as mod. 63 NLRB
273; Western Electric Co . v. N. L. R. B., 147 F. 2d 519 (C. A. 4), enfg. 57 NLRB 117, cert.
den. 324 U. S . 870; and N. L . R. B. v. Baltimore Transit Co ., 140 F. 2d 51 ( C. A. 4), enfg.
as mod . 47 NLRB 109 , cert. den. 321 U. S. 795.
13 See N. L. It . B. v. Southern Bell Telephone & Telegraph Co., 319 U. S. 50 , in which the
Supreme Court upheld the Board ' s determination that an employer , under analogous cir-
cumstances , violated Section 8 ( 2) of the original Act.
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer to the employee named below immediate and full
reinstatement to his former or substantially equivalent position
without prejudice to any seniority or other rights and privileges
previously enjoyed, and make him whole for any loss of pay
suffered as a result of discrimination.
Fred H. Cathey
All our employees are free to become or remain members of the
AMERICAN FEDERATION OF HOSIERY WORKERS or any other labor or-
ganization. We will not discriminate in regard to hire or tenure of
employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any such
labor organization.
TENNESSEE KNITTING MILLS, INC.,
Employer.
By -----------------------------------
(Representative ) ( Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Thomas H. Ramsey, Esq., of Atlanta, Ga., for the General Counsel.
Millard E. Queener, Esq., of Columbia, Tenn., Coleman T. Bahn, Esq., of
Boston, Mass., for the Respondent.
Mr. Albert Hackworth, of Chattanooga, Tenn., for the Union.
STATEMENT OF THE CASE
These proceedings arose upon a first amended charge filed on October 19, 1948,
by American Federation of Hosiery Workers, unaffiliated, against Tennessee
Knitting Mills, Inc. Upon the basis of such charge, the General Counsel of the
National Labor Relations Board, acting through the Regional Director of the
Tenth Region (Atlanta, Georgia), issued a complaint against the named Com-
pany on January 27, 1949. This alleged that the Company had engaged in and
was engaging in unfair labor practices affecting commerce within the meaning
of Section 8 (a) (1), 8 (a) (2) and 8 (a) (3) and Section 2 (6) and (7) of the
Labor Management Relations Act (61 Stat. 136). Copies of the complaint and
of the charge upon which it was based, together with notice of hearing thereon,
were duly served upon the Respondent and the Union'
The complaint alleged in substance that the Respondent engaged in unfair
labor practices: (1) on and since March 1, 194S, by interfering with, restraining,
and coercing its employees, through interrogating them concerning their union
1 Reference in this Report will be : American Federation of Hosiery Workers, as the
Union ; Tennessee Knitting Mills , Inc., as the Respondent , the General Counsel and his
representative at the hearing , as the General Counsel ; the National Labor Relations Board
as the Board ; the Labor Management Relations Act, as the Act; the committee of em-
ployees of the Respondent 's Columbia , Tennessee , plant, as the Committee.
TENNESSEE KNITTING MILLS, INC. 1111
affiliations and activities , through threats and warnings to them to refrain
from union activities , through warnings to them not to talk to union organizers,
and through solicitation to some of them to abandon the Union ; ( 2) on and
since November 1947, by dominating and interfering with the formation and
administration among its employees of the Committee and by contributing finan-
cial support thereto, and ( 3) on or about August 6 , 1948 , by discharging Fred
H. Cathey and thereafter by failing and refusing to reinstate him. Thereby,
it alleged , the Respondent had deprived its employees of the exercise of the
rights guaranteed in Section 7 of the Act.
The answer of the Respondent admitted the jurisdictional facts of the case,
but denied specifically and generally the unfair labor practices set forth in the
complaint . With respect to the discharge of Fred H. Cathey, the answer al-
leged "that its reasons for the discharge of said Cathey and for refusing to re-
instate him were in no way connected with his membership in or activities on
behalf of any Union."
On- February 7, 1949, the Regional Director of the Tenth Region entered a
written ruling denying a motion of the Respondent to postpone the hearing in
this case.
Based upon a written motion of the Respondent to dismiss the complaint,
Myers D. Campbell , a Trial Examiner , duly designated by the Chief Trial Ex-
aminer, entered a written order, on February 11, 1949, denying such motion.
Pursuant to notice , a hearing was held in Columbia , Tennessee , on March 15,
16, 17, and 18, 1949, before Hamilton Gardner, the undersigned Trial Examiner,
duly designated by the Chief Trial Examiner . The General Counsel and the
Respondent were represented by counsel , and the Union by an authorized rep-
resentative . Full opportunity was afforded all parties to be heard, to examine
and cross -examine witnesses, and to introduce evidence bearing on the issues.
During the course of the hearing , at the conclusion of the case -in-chief of the
General Counsel and at the conclusion of the introduction of evidence, the
Respondent made various motions ( too numerous to set forth in the restricted
space in this Report ), to strike various lines of testimony , and to dismiss the
complaint in part and/or in its entirety . Except as such motions are granted
as made or as modified in this Report , they are hereby denied . At the end of
the hearing the undersigned granted a motion of the General Counsel, to which
no objection was made, to amend the pleadings in minor matters to conform to
the proof.
Oral arguments were made at the beginning and at the end of the hearing by
both counsel . The parties were advised of their right to file proposed findings
of fact, conclusions of law , and briefs . The Respondent has filed a document
titled "Proposed Findings of Fact and Conclusions of Law ," but which the Trial
Examiner regards as being a brief in nature . It has been carefully considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent's answer admits that it is a Massachusetts corporation with
its principal office at Boston. It operates the plant involved in this case at
Columbia, Tennessee, where it is engaged in the manufacture and distribution
of ladies' full-fashioned hosiery. During 1948 the Respondent purchased raw
materials consisting principally of nylon in excess of $500,000 of which ap-
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proximately 90 percent was transported from points outside the State of
Tennessee. During the same period sales of its products exceeded $1,000,000 of
which about 90 percent was shipped to customers in States other than Tennessee.
The Respondent admits that it is engaged in commerce within the meaning of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The answer of the Respondent admits that American Federation of Hosiery
Workers, unaffiliated, is a labor organization admitting employees of the Respond-
ent to membership.
III. THE UNFAIR LABOR PRACTICES
A. The over-all back-ground 2
1. Critical dates
For the purpose of applying the time limitations set forth in the proviso to
Section 10 (b) of the Act to the facts of this case, it is important to fix at the
outset the important determinative dates.
The original charge was filed August 18, 1948. It alleged violation of Section 8
(a) (3) by the discharge of Cathey and of Section 8 (a) (1) derivatively only.
On October 19, 1948, the amended charge was filed. This included the original
accusation of violation of Section 8 (a) (3) and added to it allegations of viola-
tions of Section 8 (a) (2) and of Section 8 (a) (1) specifically.
The complaint was filed on January 27, 1949. It set forth that the violations
of Section 8 (a) (1) commenced on March 1, 1948; of Section 8 (a) (2) in Novem-
ber 1947; and of Section 8 (a) (3) on August 6, 1948.
2. Identity of persons involved
It will be helpful to identify the actors participating in the events pertinent to
the issues in this case.
a. Respondent
Named in descending order of authority, these are the official, managerial and
supervisory personnel of the Respondent who appeared in the evidence : Jacob S.
Gordon, president and treasurer ; Abe Wilcher, general manager ; Frank Cover,
plant manager, Columbia, Tennessee, plant ; T. J. Ryan, assistant to plant man-
ager ; Philip L. Hatch, assistant plant manager ; Lane Young, foreman of the
knitting department ; Herman A. Whitehurst, supervisor in charge of quality
control ; Jacob W. Shapiro, plant chemist, and supervisor of the throwing
department. All testified for the Respondent except Gordon, Wilcher, Ryan, and
Young.
b. Union
Albert Hackworth, national representative, who represented the Union at the
hearing, and Mrs. Lena Lee, organizer for the Union, testified for the General
Counsel.
c. The discharged employee
The dischargee in this case was Fred H. Cathey, who was a witness for the
General Counsel. The date of discharge was August 6, 1948.
2 Only such facts as are noncontroversial and not in dispute in the evidence are included
in this brief portrayed of the over-all background of the case.
TENNESSEE KNITTING MILLS, INC. 1113
d. Committees
Wallace Paul , General Counsel's witness, acted as chairman of the strike com-
mittee in November 1947, and Claude E. Reeves, Erastus S. Park , witnesses for
the Respondent , were members of that body.
Witnesses who had been members of the permanent Committee for 1948 or for
1949 were : For the General Counsel: Thomas M. Rayburn (also a member of the
'strike committee ) ; for the Respondent : Azalene White, Geraldine Lunsford, and
Mrs. A . C. Murphy.
These non-Committee employees testified for the General Counsel: Frank C.
Howell , Ernest Love, John W. Gibson, George W. Howell , and Louise Cathey ; and
for the Respondent appeared Jim L . Thompson , maintenance man.
All the witnesses mentioned were current employees of the Respondent at the
time of the hearing except Hackworth and Mrs. Lee, the Union representatives,
Cathey, the dischargee , and George W. Howell , who had previously been
separated.
3. The physical plant
As stated, the Respondent produces full length ladies' hosiery from nylon at
its Columbia, Tennessee, plant. The operations are divided into various depart-
ments, such as knitting , "throwing," seaming, looping and finishing . The em-
ployees number about 425 to 450 and include both men and women. They work
in shifts of which only two have significance here. The first-or day-shift goes
on at 6 a. in. and off generally at 2 p. in. when the second shift takes over. The
plant machinery is powered by electrical energy.
These somewhat intricate manufacturing processes require rather unvarying
atmospheric conditions. Most important of these are temperature and humidity.
Both must be kept within narrow limits. To effectuate this the plant operates
boilers and humidifying and refrigeration machinery. Up to the latter part of
1947 two boilers were functioning, one by a stoker and one by hand. The humidi-
fication apparatus had been long in use and proved to be inefficient for a modern
plant. go by the spring of 1948 a complete new set of of air-conditioning equip-
ment had been installed, which, together with certain other machinery, cost in
excess of $250,000. The change-over also necessitated some structural alterations
in the buildings, such as walling up most of the windows.
As part of its operating force, the Company employed four watchmen, whose
duties consisted primarily of checking the plant gates, guarding the property
generally, and included the operation of the boilers and the air-conditioning
installations.
4. The strike of November 1947
As a result of a fist fight about November 17, 1947, between two employees, one
a knitter and the other a fixer, the Company fired the knitter only. When the
Company refused to discharge the other pugilistic participant, the knitters
walked out. Almost immediately a strike committee was formed and soon
thereafter negotiations for settlement were started. At the end of less than
2 weeks the knitters returned to work.
5. Permanent Committee
Early in January 1948, the employees held an election at the plant and elected
a permanent Committee to represent them in dealing with the Respondent. De-
tails of the election will be discussed later. The Committee consisted of two
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representatives from each department, except the knitting department, which
elected 12 of whom only 6 attended any particular meeting. This Committee
served throughout 1948. A succeeding Committee was similarly elected in
January 1949, for that year.
6. Union drives
u
So far as germane to the issues of this case, two periods of intense union activity
should be noted. The first was during the strike of November 1947, and the
second extended practically without interruption from February to August 6, 1948,
when Cathey was discharged. Leading these union drives were Albert Hack-
worth and Mrs. Lena Lee, witnesses for the General Counsel, together with
other union members from Nashville, Tennessee. Union pamphlets and dodgers
were distributed at the Company's gates at the exchange of shifts, at nearby
restaurants, and at the homes of employees. Some meetings were held. Member-
ships were solicited and signatures or applications sought. No petition for
a representation election was filed with the Board or held by it. At the time
of the hearing the Union was not represented at the Respondent's plant.
B. Interference, restraint,-and coercion'
As already mentioned in this Report, the complaint charges the Respondent
with violation of Section S (a) (1) of the Act, through certain designated officers
and supervisors, in that it "has interrogated its employees concerning their
union affiliation and activities ; has threatened and warned its employees to
refrain from assisting, becoming members of or remaining members of the
Union ; has admonished its employees not to talk to union organizers and di-
rected them to eject the organizers from the plant ; and has directed, some of its
employees to solicit other of its employees to abandon the Union."
What proof did the General Counsel adduce in support of these claims?
Such proof consists of testimony concerning declarations made by various offi-
cers and supervisors of the Company and of documentary evidence.
1. Gordon's speech on March 1, 1948
On March 1, 1948, Gordon, president of the Company, came to Columbia and
made an address at the plant to all the employees on the day shift. At this time
the Union was conducting an energetic propaganda campaign. Concerning the
contents of the speech, Rayburn, then chairman of the permanent Committee,
Frank C. Howell, an employee, and Cathey, the dischargee, testified for the Gen-
eral Counsel and Cover, plant manager, for the Respondent. There is no irrec-
oncilable conflicts as to what Gordon said on this occasion.
First he pointed out what he considered the felicitous conditions under which
employees of Tennessee Knitting Mills, Inc. worked-high wages, good credit in
Columbia, the meeting of grievances, vacation and holiday pay, company payment
of health, accident, and hospitalization insurance and old age pensions and recent
improvements in working conditions at the plant. Then he launched into a con-
sideration of "outsiders." "Yes," he stated, "all this has been achieved without
s The evidence bearing on the issues , concerning which findings of fact will be made
from this point onward, is in dispute in greater or lesser degree. Wherever possible, attempt
will be made to reconcile it. It will be analyzed, considered, and evaluated primarily on
the-basis of its probability , consistency , and trustworthiness and likewise on the basis of
the credibility of the witnesses , including their demeanor on the witness stand. The method
of approach will be impartial , realistic , factual , and purely objective.
TENNESSEE KNITTING MILLS, INC. 1115
the help of outside wondermen." "We need no outsiders to come between us and
break up the relation which has made this mill so outstanding in Middle Tennes-
see." "Don't allow paid agents or anyone else to break our mutual confidence,
which was and is the basis upon which T. K. M. has been built and is progressing.
No one has any right to intimidate or coerce you." "Do not be misled by idle
promises which cost nothing to make." "We don't believe that the great majority
of our employees will fall for empty promises made by paid propagandists."
The foregoing quotations are taken from a letter sent by the Respondent to all
its employees immediately following Gordon's speech which is in the record.
According to Cover, plant manager, it is exactly what Gordon said. But Cover
admitted that Gordon's speech lasted from 30 to 45 minutes ; that he did not speak
from a previously prepared manuscript, but from notes ; and that the letter was
later prepared by himself, Cover.
Gordon was not called to testify for the Respondent.
2. Gordon's meeting with Committee, March 1, 1948
Immediately following Gordon's speech to the assembled employees on March
1, 1948, he met with the plant Committee. Present with him were Cover, plant
manager; and Shapiro, supervisor and editor of the plant newspaper. Rayburn,
chairman of the Committee, testified for the General Counsel that Gordon com-
mented on outside interference and then "he polled the committee . . . did
they think we could get along without the outside interference." He then stated
that employees who had signed union application cards should either throw them
away or return them to the Union. As to all these matters Gordon urged the
Committee to take the lead with the employees but his plea did not meet with
favor. Mrs. A. C. Murphy, for the Respondent, testified that Gordon asked each
committee member if he belonged to the Union. Later she resumed the witness
stand to explain she had been mistaken. Her attempted explanation merely con-
firmed the opinion of the Trial Examiner that she told the truth the first time.
Cover varied somewhat from the testimony of Rayburn and Mrs. Murphy. He
testified :
Before the conclusion of the meeting he said, "You have listened to my
talk which tells you of the benefits and rights you have in the mill. Do you,
and you, and You"-he kept asking everyone of them-"believe that Union-
ism could improve?" . . . And some said that they never belonged to any
Union and they don't know whether it is good or bad.
Shapiro also had his version of the polling.
A. He asked the committee members to tell him what benefits they might
expect if the Union were to come in.
Q. In what fashion did he do that?
A. Well, he would say: What benefits do you expect? And he would look
at a particular person and that person would answer.
Q. Then, would he go to another person, and another person?
A. Yes, sir.
I hold that these questions by Gordon to the individual committee members
amounts to an interrogation as to their union membership. Certainly there can
be no doubt that it was a questioning of their views as to the Union. Gordon's
urging the Committee to take the lead in inducing employees to return their union
cards was clearly a form of interference. I so find.
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Gordon's speech on July 16, 1948
Gordon made a second speech to the assembled employees on July 16, 1948. At
that time the Union was conducting a particularly active drive, including the
distribution of a flood of literature 4 Gordon displayed one of these union pam-
phlets during the course of his speech and commented about it. Wesley Paul,
Frank C. Howell, and Cathey testified about this speech for the General Counsel
and Cover, Shapiro, and Mrs. Murphy for the Respondent. Their testimony
coincides generally.
Gordon first emphasized the benefits the Company had provided for its em-
ployees, such as vacation pay and various insurance and sick benefits. Then he
displayed a union leaflet and stated that the "outsiders" who distributed it did
not do so for the benefit of his workmen but for the purpose of securing money
out of their pockets under the guise of dues or otherwise. Finally he commented
on a visit he had recently made to Russia, saying that conditions of laborers there
were intolerable, which was brought about because communism required every
one to belong to the Union and if the Union got control in this country or entered
this plant the conditions would be the same. He also urged his employees to
return their union application cards and explained how they could do it. Cathey
testified Gordon remarked that he had already closed one mill down because of
the Union and might have to shut this one down. No other witness heard this
statement, so I give it little weight. Cover, plant manager, denied only that
Gordon had used the term of communism.
Gordon's urging the employees to return their union cards, in the light of all
the circumstances, really amounted to a form of interference.
4. Statements of Shapiro, supervisor, to Frank C. Howell and others
Howell fixed the date of a conversation with Shapiro as immediately after
Gordon's speech on July 16, 1948, and the place as Howell's machine. His testi-
mony was that Shapiro asked him how he felt about the Union and then con-
tinued : "And told me I was playing with fire and liable to get burned, and be
a good idea to keep my mouth shut." Shapiro had a trade journal with him
and commented on a union resolution adopted at a convention to the effect that
a third shift should be abolished in textile factories. He then stated that if
the Union came in and the third shift were eliminated, about 45 people would
lose their jobs.
Shapiro denied talking to Howell about the latter's union views, but frankly
admitted the rest of the conversation. Moreover, on cross-examination, he ac-
knowledged having similar conversations with five or six other employees.
Further credence is given to this conversation from the fact that on June 18,
1948, he sent a letter to all of its employees saying substantially the same about
the elimination of the third shift.
Taking all the facts into consideration, I prefer to believe Howell.
The general effect of these statements will be discussed later.
5. Statement by Whitehurst, supervisor, to Cathey and his wife •
According to Cathey and his wife, Herman A. Whitehurst, a supervisor, vis-
ited their home late in February 1948. Whitehurst had formerly been an
active union man, but was not then. He had frequently visited the Cathey home.
4 Some 19 examples of this literature are in the exhibits.
TENNESSEE KNITTING MILLS, INC. 1117
Cathey and Mrs. Cathey testified that Whitehurst stated he didn't know whether
they belonged to the Union, but that "if we were, we was fixin to get out on a
limb and get it chopped off behind us."
Whitehead admitted making this statement, but fixed it at an earlier date.
It is significant that he never visited the Catheys thereafter.
I find the Cathey version worthy of credence.
6. Surveillance
This word was bandied about considerably during the hearing and the Trial
Examiner had the impression some of the witnesses did not even know what it
meant. It had reference to an alleged statement by Whitehurst to Cathey at
the conference just referred to that the Company intended to watch him. Soon
thereafter Lane Young, a supervisor, bought a house next door to Cathey's
and could see Mrs. Lee and other union representatives visit the Cathey home.
No proof was offered that Young ever actually saw such occurrences, or ever
reported them to the Respondent or that the Company ever took any action about
them.
I therefore disregard this matter entirely.
What do these statements add up to with respect to the charged violations of
Section 8 (a) (1) ? They must be assayed not only objectively but alone, be-
cause the evidence does not present any extraneous company attitude or course
of conduct, unless the discharge of Cathey be so regarded. What part of them
constitute the expression of views authorized in Section 8 (c) of the Act?
Wherein may be found any "threat of reprisal or force or promise of benefit"?
The Trial Examiner does not deem it necessary to make either a qualitative
or quantitive assessment of all these statements. It is sufficient if a substantial
portion of them do in fact "interfere with, restrain or coerce employees." That
some of them do belong in this category has already been specifically pointed
out ; The questioning of the individual members of the Committee by Gordon
as to their union affiliation and views ; his urging the Committee and later the
employees generally to return their union cards ; Shapiro's warning to Howell ;
Whitehurst's cautioning of Cathey. These are sufficient. I reach this con-
clusion the more readily because I regard Gordon's references to Russia and
communism, which he coupled with the "outsiders" (clearly meaning the Union
because he showed a Union pamphlet when he said it), as tantamount to a
threat. All this spells out a violation of Section 8 (a) (1).
That statements made by officers and supervisors of the Respondent in this
case, when coupled with all other facts and circumstances, amounts to inter-
ference with, restraint, and coercion has long been well established by the Federal
courts.
But certainly, conduct, though evidenced in part by speech, may amount,
in connection with other circumstances, to coercion within the meaning of
the Act. If the total activities of an employer restrain or coerce his em-
ployees in their free choice, then these employees are entitled to the pro-
tection of the Act. And in determining whether a course of conduct amounts
to restraint or coercion, pressure exerted vocally may no more be disregarded
than pressure eo;erted in other ways. For slight suggestions as to the
employer's choice between unions may have telling effect among men who
know the consequences of incurring that employer's strong displea sure.°
[Emphasis supplied.]
° N. L. R. B. v. Virginia Electric i Power Co., 314 U . S. 469, 477.
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Such statements are justified only if the expressions in controversy are
non-coercive and that "If they are couched in such phrases, or attended by
such circumstances that they tend to exercise undue influence and coercion
upon the employees, the expressions of opinion are not protected .. .."
The test is whether the employer engaged in conduct which, it may reason-
ably be said, tends to interfere with the free exercise of employee rights
under the Act.'
The Board has held in numerous decisions that questioning of employees
concerning their union membership or activities is coercive per se.'
The contentions of the Respondent's brief to the contrary are rejected.
Conclusion as to interference, restraint, and coercion
Under the facts set forth I find that the Respondent, beginning March 1, 1948,
interfered with, restrained, and coerced its employees in violation of Section
8 (a) (1) of the Act.
B. The alleged domination or interference with the Committee
The complaint alleges that, beginning in November 1947, the Respondent "dom-
inated and interfered with the formation and administration among its em-
ployees of the Committee and has contributed financial and other support thereto."
In order to appraise properly the nature of the origin of the Committee it is
necessary to go back to a period which antedates the 6 months' time limitation
before the charge dealing with Section 8 (a) (2), which was filed October 19,
1948. This is done solely for the purpose of filling in the historical background.
None of such facts will be considered as substantive proof on the issues.
1. Origin of the Committee
Three members of the strike committee of November 1, 1947, testified about the
first steps taken to form a permanent Committee. These were Rayburn, Paul,
and Parks, the last named for the Respondent. Frank C. Howell and Cover,
plant manager, also added their knowledge. There is no contradiction whatso-
ever in all this testimony.
As early as the day following the strike, members of the strike committee
began to talk among themselves about the advisability of forming a permanent
committee for the purpose of negotiating with the Company in the future and
thereby avoid strikes. Unanimity of opinion was achieved that such a step
was desirable. Accordingly, Rayburn and Paul called on Cover at the plant
and made the suggestion. Cover's reaction was favorable. Later, and before
the strike was settled, the strike committee met with Cover and Wilcher, gen-
eral manager, who had come down from Boston, and the subject was pursued.
Wilcher agreed the Company would deal with such a Committee. He and
Cover suggested, however, the Committee should be elected by secret ballot and
that each department should be represented. Wilcher also proposed some method
of conciliation but this was refused by the Committee. Rayburn, who was later
the first chairman of the permanent Committee and whose consistent testimony
ON. L. R. B. v. Ford, 170 F. 2d 735, 738 (C. A. 6).
T Goodyear Footwear Corp., 80 NLRB 800 ; Morristown Knitting Mills , 80 NLRB 731 ;
Biggs Antique Co., 80 NLRB 345.
TENNESSEE KNITTING MILLS, INC. 1119
and demeanor on the witness stand made him a highly credible witness, stated :
"That original idea of the Committee to represent the employees after we went
back to work, it originated from the minds of the employees themselves . . .
I know it did not originate down in the office." No evidence whatsoever was
offered to contradict this statement.
2. Elections of 1948 and 19498
Late in December 1947, steps were taken by members of the strike committee
to hold an election of a permanent committee. Apparently no formal meeting
was held, but the members discussed the matter among themselves. Claude E.
Reeves was delegated, as a result of such informal discussions, to conduct the
election in the knitting department. He secured permission from Cover, plant
manager, made all the preliminary arrangements, and personally collected the
ballots. The exact date of the election does not appear in the evidence, but
it was either very late in December 1947, or very early in January 1948.
Reeves secured some blank paper slips from the Company's storeroom and
fixed a paper container to serve as a ballot box. He then went to each machine
in the knitting department, told the knitters that this was an election for
representatives on a permanent employees' committee, and asked them to
write on the slip their choice of names and deposit the slips in the box. This
was done during working hours. The same procedure was followed on all
shifts. When all ballots were in, Reeves and two women knitters counted the
ballots and caused the names of the winners to be posted on the bulletin board.
In other departments the same method was employed.
Cover testified, without contradiction, that he instructed all supervisors to
permit the elections, but to refrain from taking any part in them. No evidence
was presented to show that anyone connected with management participated
in the election in any manner whatsoever.
The election in January 1949 was conducted in the same manner.
3. Organization and functions of the Committee
The Committee consisted of 2 representatives from each department, except
the knitting department , which elected 12, divided equally among the several
shifts . Of these, however , only 6 attended any particular meeting. Thomas M.
Rayburn prepared a short so -called "constitution and By Laws " ( which is in
evidence ), and this was "approved " by the Committee and a copy furnished
to management . No membership cards were issued and no dues were paid.
Rayburn was elected the first chairman . Monthly meetings were stated, but
this schedule was not adhered to. By agreement , either the Committee or
the Company could call a joint meeting wherever a subject for mutual discussion
arose. The Committee members received no pay for attendance at the meetings.
This was discussed at the January 16 , 1948, meeting. Cover expressed a willing-
ness to pay when the Company had called a meeting . The Committee refused
to accept any pay whatsoever . In 1949, however , the question of pay was again
brought up by a Committee member. Cover received his offer. The evidence
does not show that any such payments were actually made.
The subjects discussed at joint meetings with management were in general
those pertaining to wages, hours, and working conditions . The first meeting
appearing in the record occurred on January 8, 1948. That was requested by
B There is no dispute in the testimony of the witnesses for the General Counsel and for
the Respondent concerning the elections.
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Committee to discuss the question of seniority of the watchmen regarding
assignments to shifts. Involved were Cathey and Phillips. In March 1948,
the Committee met with Gordon, president of the Company, and negotiated a
settlement regarding wages which took the form of a bonus. A meeting was
also held with Cover regarding Cathey's discharge, although the Committee
had not actually represented the watchmen since the January 8, 1948, meeting.
The chief subject discussed was seniority. Others were vacation pay and such
collateral matters as annual picnics and the like. The Committee was success-
ful in reaching agreements with the Company as to most of its demands, but
not invariably so. But in any event some mutually satisfactory arrangement
was consummated. The subject of strikes was never discussed.
On this record did the Respondent so dominate and interfere with the Com-
mittee as to constitute a violation of Section 8 (a) (2) of the Act? In the
opinion of the Trial Examiner not a single one of the essential elements going
to make up this type of unfair labor practice is shown by the proof. In the
first place the Committee was originated by the voluntary action of the employees
themselves and the Company had nothing to do with it. Secondly, the members
of the Committee were elected by the workers in a manner satisfactory to them-
selves and without any supervision or participation by anyone connected with
management. In the third place the Respondent never once interfered or sought
to influence any action or decision of the Committee. Finally the Company
contributed no financial support to the Committee. Therefore I find there was
no domination or interference with the Committee on the part of the Respondent.
In a case where the Supreme Court found that the employer had dominated a
company union, the following elements of a violation of Section 8 (a) (2) were
pointed out:
The circumstantial evidence makes credible the finding that complete
freedom of choice was effectively forestalled by maintenance of the com-
pany union by the employer until its abandonment would coincide with the
recognition of Independent.. The declared hostility towards an "outside"
union, the long practice of industrial espionage, the quick recognition of
Independent, the support given Independent's membership drive by some of
the supervisory staff, the prominence of company union representatives in
that drive, the failure of the employer to wipe the slate clean and an-
nounce that the employees had a free choice, the belated instructions to
the supervisory staff not to interfere-all corroborated the conclusion that
the employer facilitated and aided the substitution of the union, which it
preferred, for its old company union!
These elements are not to be found in the present case.
Conclusion as to Domination of the Committee
Having found that the Respondent did. not. dominate or interfere with the Com-
mittee in violation of Section 8 (a) (2), I shall recommend that that portion
of the complaint be dismissed.
C. Disertnzinatory discharge of Fred H. Cathey
The complaint alleges that the Respondent violated Section 8 (a) (3) of the
Act, in that it "on or about August 6, 1948, discharged Fred H. Cathey and
thereafter failed and refused to reinstate him" and that such discharge was
"because of his membership in and activities on behalf of the Union and because
ON. L. R. B. v. Link-Belt Co., 311 U. S. 584 , 599-600.
TENNESSEE KNITTING MILLS, INC. 1121
he engaged in concerted activities with other employees for the purposes of
collective bargaining .. . .
1. The dischargee
Fred H. Cathey entered the employment of the Respondent on May 10, 1938,
and worked continuously for them until his discharge on August 6, 1948, more
than 10 years. On October 17, 1938, he was assigned to the position of watchman,
which included the responsibility of operating the boilers and air-conditioning
equipment. During his tenure of service his wages were increased from 15 cents
to 83 cents an hour. In World War II he worked on the first (day) shift until
Phillips returned from the Armed Forces late in 1945 when he was shifted to
the second shift. Early in January 1948, Phillips was transferred to another
position and one Dowell was hired to take his place. Cathey caused the Com-
mittee to protest this, as already noted, on the ground of seniority. About April
1, 1948, Dowell quit and Cathey was reinstated in the first shift where he remained
until he was discharged on August 6, 1948. Up to approximately April 1, 1948,
Cathey, with respect to his duties as fireman, had been under the supervision of
Jim L. Thompson, maintenance man. Thereafter he reported directly to Philip
L. Hatch, assistant plant manager.
On May 2, 1948, Cover, plant manager, granted Cathey an individual wage
increase of 5 cents per hour because of the clean condition in which the latter
kept the boiler room.
2. The actual discharge
On August 4, 1948, Cathey checked in the plant as watchman on the first shift
shortly before 6 a. in. To do so he punched his time card in the check room.
At that time, he testified, he saw no cards 10 on top of the time clock. He then
went outside to the nearby steps and sat down to watch the gates to the plant.
Between 6: 15 a. in. and 6: 20 a. in. he was relieved as watchman by Ernest Love
so he could go to the boiler room and check the boilers and air-conditioning
equipment. Before going to the boiler room, however, he followed Love into
the check room and then for the first time noticed a stack of cards on top of the
time clock. He took one and later read it. When he returned to the check room
the cards were gone.
Cover testified that when he arrived at his desk that morning Ryan, assistant
to the plant manager, showed him three of the cards. Ryan stated that he had
picked them up at 6: 45 a. in. Cover stated that Loftiff, the watchman on the
shift ahead of Cathey, had reported that the cards were not there at 6: 01 a. in.
when he went off. Loftiff was not called to testify.
No evidence was presented to show that Cathey placed the cards on the time
clock, nor may any reasonable inference to that effect be drawn. The contention
of the Respondent seems to be (this was not particularly argued orally or in its
10 These cards , of which a sample is in evidence, read :
On Friday, July 16, Mr. Gordon told us in his speech about the poor conditions in
Russia for the workers . There are no unions in Russia for the workers and if Mr.
Gordon and his kind had their way there would be no unions in America. Unions in
America are struggling to improve working conditions so that workers have a decent
standard of living. That means less profits for Mr. Gordon and more wages for us.
That is why he makes a speech to us. He don't want the union, we do.
Hackworth, union representative, testified that the cards were prepared in the
union office at Chattanooga, Tennessee, brought to Columbia, and distributed to the
Respondent' s employees.
c
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
brief ) that Cathey had a duty to remove the . cards when he first saw them.
That question can be resolved only by a consideration .of the custom and practice
at the plant regarding the distribution of such literature . It is true that on
May 12, 1947 , Cover posted a "Notice" on the bulletin board prohibiting "the
collection of money for presents , flowers, etc . . . . or displaying of posters,
stickers etc." Cathey admitted he knew about this regulation . The custom
and practice was that if a bulletin was to be posted, Cover first approved it and
then ordered the watchman or someone else to place it on the bulletin board.
Notwithstanding the notice just mentioned , literature of various types was
distributed in the plant . In the period just before Cathey ' s discharge, for
example , several political candidates visited the mill and passed out cards.
Notices had also been posted concerning various social and sporting events.
Union propaganda likewise found its way into the factory , as has already been
pointed out . No evidence was presented to show any duty on the part of
watchmen to collect this literature and turn it in or destroy it . Specifically the
record is'completely silent that Cathey had received any instructions concerning
such an obligation on his part.
During the following day, August 5, Cover said nothing to Cathey concerning
the cards . He testified that he was waiting for Cathey to report to hini about
the matter . Cathey did not do so.
On August 6, 1948, Cathey worked about 2 hours and then went home, the
reason therefor not appearing of record . Cover sent for him and when he
appeared at the office, handed him a check for payment in full of his wages, a'
withholding statement and a separation slip. He told Cathey his employment
was terminated and the only reason he gave was that he had completely lost
confidence in Cathey.
A few days later, about August 11, 1948, Cathey appeared at Cover's office
and asked what he could do to be reinstated in his job .. Cover merely repeated
that he had lost confidence in Cathey . He did send to him a letter of recom-
mendation, however. About the same time several members of the plant Com-
mittee spoke to Cover regarding the return of Cathey to his job, but without
result. On September 14, 1948 , Mrs. Lena Lee with a fellow union organizer
named Yersak called on Cover and urged that he reemploy Cathey. Cover re-
ferred them to the Company's attorney . Cathey had not been reinstated at the
time of the hearing.
3. Cathey's union activities
According to Cathey's own testimony, which was not disputed in this respect,
he first applied to join the Union in 1944 and renewed his application shortly
after the strike in November. 1947. He never did carry a union card, however.
He,' his wife, Mrs. Lena Lee, and Hackworth. all testified that the union organizers
visited the Cathey home several times daily when union drives were under way.
Cathey stated that he personally solicited 25 to 30 employees to join the Union,
much of this activity being done at the workers' homes. His efforts in behalf of
the Union continued until he was discharged. This proof was. not contradicted.
4. Respondent's knowledge of Cathey's union activities
Undisputed testimony disclosed that Cathey testified for the General Counsel
in a previous hearing in, which the. Respondent was charged with an unfair
labor practice. None of the issues involved in that hearing were presented in
the current proceeding. It is true that such hearing occurred before'the 6=month
period before the charge of violation of Section 8 (a') (3) was filed, but the
TENNESSEE KNITTING MILLS, INC. 1123
fact is relevant in showing knowledge by the Respondent of Cathey's activities.
Cathey testified that early in January 1948, in the boiler room he discussed
with Cover the matter of his succeeding Phillips as watchman on the day shift.
Among other things Cathey asked Cover why Thompson, thereto his immediate
supervisor in operating the boilers , did not like him. Cover replied : "Well, he said
your work had been perfect for the last year but you took part In the union in
that other drive. He didn't like you on account of that and I say you shouldn't
have done it, myself." Cover did not specifically deny making this statement,
although.de did deny generally that he discussed the Union with his employees.
I•credit Cathey's testimony on this point.
In November 1947, and beginning again in February. 1948, the Union con-
ducted intense membership drives. Numerous pamphlets were distributed to
the workmen, much of it at the gates of the factory at changes of shift. Some
of this union literature found its way into the mill. Gordon, president, knew
of it because he displayed one of the pamphlets during his speech on. July 16,
1948. Cover, plant manager, admitted he knew about it. Shapiro, supervisor,
was seen on several occasions holding union pamphlets in his hand. Young,
supervisor, often saw Airs. Lee and Hackworth, union organizers, go to Cathey's
]tome. Cover and his supervisors knew all their employees and frequently
talked to them. It is a fair and reasonable inference that management knew
of Cathey's union activities, over and beyond the stateruents just cited above.
Any other conclusion would not be consistent with the facts of record.
It is true Cover testified that on September 14, 1948, when Mrs. Lee and Yersak
called on him as representatives of the Union, he stated he did not know Cathey
was a member of the Union. But according to the testimony of Mrs. Lee, Yersak
reminded Cover of his conversation with Cathey to the effect that Thompson
did not like Cathey because he was active in the Union. Cover stated he had
forgotten that. I credit Mrs. Lee's version of this incident.
To place the matter beyond any doubt the Respondent, by Wilcher, general
manager, wrote a letter on November 12, 1948, to the Tenth Regional Office of
the Board in answer to their letter of October 26, 1948. Both are in the record.
In part this communication stated :
Referring again to Mr. Ball's letter, page one, in connection with Cathey's
discharge, we wish to point out that when Dlr. Cover returned from his
services in the Navy in 191,5 he learned that Cathey had supported the
union in its drive in the plant sometime earlier. Notwithstanding such
knowledge of Cathey's pro-union attitude and support running back over
three and a-half years, Cathey was continuously employed in a position of
trust. . . . [Emphasis supplied.]
On the whole I find sufficient credible proof of the Respondent' s knowledge of
Cathey's union activities.
5. Respondent's stated reasons for Cathey's discharge
All witnesses on both sides agreed that when Cover discharged Cathey on
August 6, 1948, the only reason he mentioned was that he had lost all confidence
in Cathey. He reiterated this a few days later when Cathey asked him for
reinstatement.
The separation slip presented to Cathey on discharge recited, "Not needed any
longer" as the reason. At the hearing the parties stipulated that this was the
official reason assigned at that time. _
882191-51-72
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The letter from Wilcher to the Tenth Regional Office on November 12, 1948,
stated : "Only when he [Cathey] disobeyed the rules on two different occasions
was he discharged." No elaboration as to the two occasions appeared in the
letter.
The answer of the Respondent alleged: "Your Respondent states and will show
that its reasons for the discharge of said Cathey and for -refusing to reinstate
him were in no way connected with his membership in or activities on behalf
of any Union."
At the hearing the proof adduced by the Respondent to justify Cathey's dis-
charge centered chiefly around three grounds: First, Cathey was "grumpy";
second, he was inefficient as a fireman; and third that he should have picked up
the union cards on August 4, 1948, and turned them in at the office.
The variation in the stated grounds for Cathey's discharge casts suspicion on
the meritoriousness of the Respondent's defense.
6. The defense of Cathey's inefficiency
The matter of Cathey's alleged inefficiency can be disposed of shortly. -
The first complaint by Cover was that he thought Cathey had become "grumpy"
and that he told him so late in the spring of 1948. It is sufficient to state that
all witnesses interrogated concerning Cathey's attitude and demeanor-whether
testifying for the General Counsel or for the Respondent-uniformly stated that
Cathey was pleasant and friendly and got along well with his fellow workmen.
Cathey's supposed inefficiency did not relate to his work as watchman. Cover
repeatedly told him and others that he was honest and was doing a good job as
watchman. The complaints against him concerned his operation of the boilers
and the air-conditioning equipment. Cover, Hatch, assistant plant manager, and
Thompson, maintenance man, went into great detail as to Cathey's apparent
faults in this respect. Up to the end of 1948, with the old equipment, all watch-
men had experienced difficulty-Cathey no more than the others. One thing
specifically mentioned was clinkers in the stokers. Thompson was especially
vehement about this. But he showed by his demeanor on the witness stand that
he was biased and prejudiced against Cathey. Moreover, his own experience
with stokers consisted of the operation of a small stoker in his own home. Hatch
admitted on cross-examination that occasionally the Company received bad lots
of coal which had much to do with the trouble in firing the boilers.
All the firemen had difficulty with the old humidifying system. Even Cover
admitted it was worn out, run down, and make-shift and had to be replaced by
modern equipment early in 1948. After that the troubles about temperature and
'humidity lessened.
Early in January 1948, management decided to transfer Phillips from the day
shift to another job and install an outsider, Dowell. Cathey felt that his seniority
entitled him to this shift and enlisted the help of the Committee. The meeting
of January 8, 1948, resulted. Cover repeated his satisfaction with Cathey as a
watchman, but insisted Dowell was a more experienced man as a fireman: Yet
3 months later, when Dowell quit, Cathey was put on the day shift where he
remained until discharged. That hardly appears to justify the claims of in-
efficiency.
Again on May 2, 1948, when Cathey had been operating the boilers and air-
conditioning equipment on the day shift for almost a month, Cover raised his
wages 5 cents per hour because of the clean condition in which he kept the boiler
room. No other watchman- received a similar increase. That does not seem
consistent with a belief by management that Cathey was inefficient.
TENNESSEE KNITTING MILLS, INC. 1125
I conclude that the defense of Cathey's inefficiency as a basis for his discharge
is in substance and effect an afterthought to cover up the real reason for his
discharge.
7. Discrimination for union activities
The oral arguments of counsel for the Respondent at the conclusion of the
hearing and in his brief, with respect to the discharge of Cathey, are largely
factual. It is sufficient to say that in his analysis and evaluation of the evidence
the Trial Examiner reaches different conclusions. The authorities cited merely
point out the well established rule that an employer has the right to discharge
an employee for any reason deemed sufficient by him, providing only that such
discharge is not based on the latter's union activities." These authorities are
not controlling under the facts in this case. The argument of the Respondent
is therefore rejected.
It is clear from the recital of facts set forth above that Cathey did engage in
union activities over an extended period of time and that the Respondent well
knew of such course of conduct by him. It is equally apparent that his alleged
inefficiency was not the real reason for his discharge but only a subterfuge.
What actually motivated the Respondent in depriving Cathey of his job was
the union cards which found their way into the plant on August 4, 1948. Cover
testified that they "contained disparaging remarks" about Gordon, president.
The Respondent's brief asserts they "cast a slur upon the President of the Com-
pany." As to that, the cards speak for themselves.12 In any event the record
contains no proof that Cathey placed them on the time clock or was required
to remove them. They were admittedly union propaganda and Cathey was
known to be a union sympathizer. It is noteworthy that Ernest Love, who also
saw the cards, was not discharged. It is equally to be noted that Cover, during
the 3 days of August 4, 5, and 6, 1948, never asked Cathey a single question about
the cards, but peremptorily fired him. I find that the proof clearly shows such
discharge to be discriminatory under the Act.
In their interpretation of the Act, the Federal Courts have long held that a
discharge under the circumstances obtaining in this proceeding is discriminatory
and violative of Section 8 (a) (3).'3
Conclusion as to Discrimination ,
I find that the Respondent, by discharging Fred H. Cathey under the circum-
stances appearing in this case, violated Section 8 (a) (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
It is found that 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 dis-
putes burdening and obstructing commerce and the free flow of commerce.
11 E. Anthony & Sons, Inc. v. N. L. R. B ., 163 F . 2d 22 , 27 (C. A . D. C.).
12 Quoted in footnote No. 10.
13 N. L. R. B. v. Norfolk Shipbuilding & Drydock Corp., 172 F. 2d 813 ( C. A. 4) ; and see
the numerous cases there cited.
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, the Trial Examiner will recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the purposes of the Act.
It has been found that the Respondent discriminatorily discharged Fred H.
Cathey because of his union activity. It will therefore be recommended that
the Respondent offer to the employee immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his seniority
or other rights and privileges, and make him whole for any loss of pay he may
have suffered by reason of the Respondent's discrimination against him, by pay-
ment to him 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 earnings during such period.
Upon the. basis of the foregoing findings of fact. and upon the entire record
in the case, I make the following :
CONCLUSIONS OF LAW
1. American Federation of Hosiery Workers (unaffiliated), is a labor organi-
zation within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8.(a)
(1) of the Act.
.3. By discriminating in regard to the hire and tenure of employment of
Fred H. Cathey, thereby discouraging membership in American Federation
of Hosiery Workers, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (3) of the Act.
4. Said unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent, during the times mentioned in the complaint, did not
dominate or interfere with the Committee in violation of Section 8 (a) (2) of the
Act.
RECOMMENDATIONS
Upon the above findings of fact and conclusions of law, upon the entire
record -in the case, and pursuant to Section 10 (c) of the amended Act, the Trial
Examiner recommends that Tennessee Knitting Mills, Inc., Columbia, Tennessee,
its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in American Federation, of Hosiery Workers, or
in any other' labor organization of its employees, by discriminatorily discharg-
ing, refusing to reinstate, or by discriminating in regard to their hire or tenure of
employment, or any term or condition of employment ;
(b) Interrogating its employees concerning their union affiliations, activities,
or sympathies, or in any manner interfering with, restraining, or coercing its
employees in the exercise of the rights to self-organization, to form labor or-
ganizations, to join or assist American Federation of Hosiery Workers or any
other labor organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities, for the purpose of collective
bargaining or other mutual aid or protection, as guaranteed in Section 7 of the
Act.
TENNESSEE KNITTING MILLS, INC. 1127
2. Take the following affirmative action, which the Trial Examiner finds will
effectuate the policies of the Act :
(a) Offer to Fred H. Cathey immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority or other
rights and privileges, and make him whole in the manner set forth in Section V
above, entitled "The remedy" ;
(b) Post at its plant in Columbia, Tennessee, copies of the notice attached
hereto and marked Appendix. Copies of said notice, to be furnished by the
Regional Director for the Tenth Region, after being signed by representatives of
the Respondent, shall be posted by the Respondent immediately upon receipt
thereof, and maintained by it for sixty (60) days thereafter, in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material ;
(c) Notify the Regional Director for the Tenth Region in writing, within ten
(10) days from the receipt of this Intermediate Report, what steps the Re-
spondent has taken to comply herewith.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 1948, any party may,
within twenty (20) days from the date of service of the order transferring the
case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file
with the Board, Washington 25, D. C., an original and six copies of a statement
in writing setting forth such exceptions to the Intermediate Report or to any
other. part of the record or proceeding (including rulings upon all motions or
objections) as he relies upon, together with the original and six copies of a
brief in support thereof ; and any party may, within the same period, file an
original and six copies of a brief in support of the Intermediate Report. Im-
mediately upon the filing of such statement of exceptions and/or briefs, the party
filing the same shall serve a copy thereof upon each of the other parties. State-
ments of exceptions and briefs shall designate by precise citation the portions of
the record relied upon and shall be legibly printed or mimeographed, and if
mimeographed shall be double spaced. Proof of service on the other parties of
all papers filed with the Board shall be promptly made as required by Section
203.85. As further provided in said Section 203.46 should any party desire per-
mission to argue orally before the Board, request therefor must be made in writ-
ing to the Board within ten (10) days from the date of service of the order
transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 23d day of June 1949.
HAMILTON GARDNER,
Trial Examiner.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist AMERICAN FEDERATION or HOSIERY WORKERS,
or any other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for, the
purpose of collective bargaining or other mutual aid or protection.
WE WILL OFFER to the employee named below immediate and full rein-
statement to his former or substantially equivalent position without prejudice
to any seniority or other rights and privileges previously enjoyed, and make
him whole for any loss of pay suffered as a result of the discrimination :
Fred H. Cathey
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment against any employee because of membership in
or activity on behalf of any such labor organization.
TENNESSEE KNITTING MILLS, INC.,
Employer.
By --------------------------------------
(Representative ) (Title)
Dated ---------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.