Union-Buffalo Mills Co.

National Labor Relations Board - Board Decisions

Sep 19, 1944

58 N.L.R.B. 384 (N.L.R.B. 1944)

In the Matter of UNION - BUFFALO MILLS COMPANY and UNITED TEXTILE
WORKERS OF AMERICA (AFL) LOCAL UNION No. 2135
Case No. 10-C-1361.-Decided September 19, 1944
DECISION
AND
ORDER
Upon complaint issued pursuant to charges duly filed by United
Textile Workers of America ( AFL), Local Union No.- 2135, herein
called the Union, against Union-Buffalo Mills Company , Fairmont,
South Carolina , herein called the respondent , a hearing was held
before a Trial Examiner at Spartanburg , South Carolina , on May 22
and 23, 1944 , in which the Board, the respondent , and the Union par-
ticipated by their representatives . The Board has reviewed the rul-
-ings of the Trial Examiner made on motions and on objections to the
admission of evidence and finds that no prejudicial error was com-
mitted. The Trial Examiner's rulings made at the hearing are hereby
affirmed.
On June 7 , 1944, the Trial Examiner issued his Intermediate Report,
a copy of which is attached hereto, finding that, by discharging and
refusing to reinstate L. B. Painter and by refusing to employ Dahlia
Painter, the respondent had engaged in and was engaging in unfair
labor practices within the meaning of Section 8 (1) and ( 3) of the Act.
Exceptions to the Intermediate Report and a brief were thereafter
filed by the respondent . Oral argument was held before the Board at
Washington , D. C., on August 22 , 1944. The respondent and the
Union were represented by counsel and participated in the oral argu-
ment. Upon consideration of the entire record, including the respond-
ent's exceptions and brief , we hereby adopt the findings , conclusions,
and recommendations of the Trial Examiner , with the modifications
noted below.
An examination of the record convinces us that the respondent
engaged in the unfair labor practices set forth in the Intermediate
Report. Fairmont , South Carolina , is a small village composed of
the respondent 's mill and the surrounding company-owned houses
and store. L. B. Painter and his wife , Dahlia, commenced their em-
ployment with the respondent in,1911; they remained continuously
58 N. L. R. B., No.-72.
384
UNION-BUFFALO MILLS COMPANY 385
in the respondent's employ until April 1943, except for brief periods
_of lay-off or illness and for the period of L. B. Painter's service in
the armed forces during World War I. The Union commenced its
organizational efforts about 1933. Painter, employee Jim Leister,
and union organizer John Nates were the leaders in the union move-
ment. Painter, the first president of the Union, has continued to
occupy that office to the present time except for two or three terms
served by Leister. After winning an election in 1938, the Union
entered into a collective bargaining contract with the respondent.
Painter was then president and signed the contract on behalf of the
Union. In 1942, the Union lost an election conducted by the Board;
however, it has continued to exist with Painter as president, although
no meetings have been held in the room provided by the respondent
for such purpose.'
On April 8, 1943, 4 weavers on the second shift expressed to Super-
intendent L. B. Gibson dissatisfaction with employment conditions.
They claimed that their take-home wages, which were based upon a
poundage rate, had been decreasing for a period of time.2 On April
9, 1943, the weavers discussed the matter with Painter, who was a
loom fixer, and designated him to be their spokesman. Later on the
same day, they discussed the matter with Gibson, who proceeded with
them to the office of General Superintendent John D. Jones. Painter
and the weavers explained the grievance, namely, that the wages of
the weavers had decreased over a period of time and that the weavers
"weren't getting what [they] had been making." 3 Jones replied that
I At least one meeting of the Union , attended by 8 to 10 members , was held in Painter's
home in the spring of 1944. At that meeting he was elected to be a delegate to the Union's
national convention held in Washington, D C
2 Weaving opeiations at the mill were normally on a three -shift basis. Thus, in a full
day, a set of looms was run by three weavers, one on each shift . Once each day the cloth
produced on a set of looms was weighed , the total weight was divided by three, and earn
of the three weavers , if regularly assigned as such was credited with an equal share of
the total production . It appears that whenever it was necessary to use the services of
a beginner on a set of looms during one shift , the practice was to assign two learners to
perform the duties of one experienced weaver . These beginners were paid by the hour.
According to Superintendent Gibson, their combined production at times exceeded that of
an experienced weaver but sometimes did not equal such production . The two experi-
enced operators on the other two shifts continued to share two-thirds of the total day's
production , despite the fact that the normal total might be reduced in amount because
of the inability of the beginners to produce a proportionate share
"Gibson and Jones denied that they were informed that Painter was the representative
of the weavers and insisted that they assumed lie had accompanied the weavers . in order
to present a personal grievance On the other hand , two of the dissatisfied weavers,
Lemuel D James and James Fortenberry, testified that Fortenberry informed Gibson that
the weavers had chosen Painter to be their spokesman The testimony of Gibson and Jones
is patently implausible . Painter was a loom fixer and was not personally concerned
in the wage grievance of the weavers Moreover, Painter had long been president of
the Union , had signed the collective bargaining contract with the respondent on behalf
of the Union , and had previously discussed grievances with the respondent , all of which
]ends credence to the testimony of James and Fortenberry that the weavers had designated
Painter to act as their representative and had so informed the respondent We there-
fore do not credit the denials of Gibson and Jones and find, in accordance with the testi-
609591-45-vol. 58-26
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he was unable to raise or lower their wage rate since wages were
"frozen" as of September 1942. According to employee James Forten-
berry, they informed Jones that "We weren't asking for a raise; [we]
wanted what we had been making." Painter proposed that, since wages
were stabilized at the September 1942 level, pursuant to the President's
`Stabilization Order,4 a survey be made of the wages paid the weavers
between September 1942 and April 1943, and that the mean between
the highest and the lowest amounts be taken as a basic guarantee.5
Jones rejected the proposal asserting that it contravened the Stabiliza-
tion Order, but countered, with an offer to guarantee the weavers the
hourly rate paid "spare hands," who worked in the place of absent
weavers. Jones directed the company auditor to determine whether
any of the 4 weavers had failed to make, on the basis of the existing
poundage rate, the earnings of "spare hands" during the immediately
previous 2 or 3-week period, and to pay the weavers the difference,
if such existed .3 The weavers did not indicate to Jones whether they
were completely satisfied with his proposal, although all accepted
the differential for the prior 2 or 3-week period. After the conference,
the weavers decided that Jones' offer did not satisfy their demands
and that they would not return to work. At their request, on April 9,
Painter informed Superintendent Gibson of their decision. During
the following week, a number of weavers went on strike, about 12 or
13 weavers joining the original 4. Although Painter, being a loom
fixer, was not personnally concerned in the wage grievance of the
weavers, he went on strike in support of the weavers and became the
leader of the strike. On April 15, the strikers decided to return to
work and on that day Painter submitted to Gibson a list containing
the names of strikers who desired reinstatement. Individual inter-
views were thereafter had, and all strikers, except Painter, were re-
employed.
His wife, Dahlia Painter, along with another employee, performed
in the respondent's mill part-time work termed "drawer-in." Her
duties, comparable to those of a set-up man, involved the introductory
step in preparing the looms for production of new patterns.,, She
worked only when patterns were changed and it was customary for
mony of James and Fortenberry, that the respondent was informed that Painter was
acting as spokesman for the weavers.
9 Executive Order No 9250, "Providing for the Stabilization of the National Economy,"
October 3, 1942, 7 F R. 7871.
5 As mentioned above, the weavers were paid on a poundage basis ; so far as the record
shows, they were not guaranteed any minimum rate
Jones and Gibson testified that the weavers complained merely that they were not
making as much on a poundage rate as the "spare hands" and that Jones thereupon
offered to guarantee them the hourly rate paid the "spare hands " Even if the testimony
of Jones and Gibson is credited , it is clear that the weavers were requesting the establish-
ment of it guaranteed minimum wage rather than a wage increase. However, as indicated
previously we have found Fortenberry and James to be credible witnesses and accordingly
rely upon their and Painter' s versions of the events occurring at the conference with
Gibson and Jones. -
UNION-BUFFALO MILLS COMPANY 387
the respondent to send for her by special messenger when her services
were required. 'Dahlia Painter worked last on April •7, 1943. Some-
time in April, apparently subsequent to April 9, Superintendent Gib-
son ordered Overseer W. G. Riddle to train a new "drawer-in." Riddle
hired his daughter, who thereafter performed "drawer-in" work.
The respondent initially contends that the instant proceeding is
within the doctrine established in the American News case 7 and there-
fore should be dismissed. ,We find the respondent's condition to be
without merit since the two cases are clearly distinguishable. In the
American News case, we held- that employees who engaged in a strike
to induce their employer to grant a wage increase in violation of the
Economic Stabilization Act were not entitled to the benefits of the Na-
tional Labor Relations Act. Unlike the American News case, in the in-
stant case, there was no application for wage increases pending before
the National War Labor Board when the employees resorted to strike
action. Here, the weavers were demanding the establishment of a
minimum wage. Undoubtedly, the minimum wage proposed by
Painter, as well as .that offered by Jones, would require the approval
of the National War Labor Board before becoming effective, since
it may be assumed that the establishment of, or change in, a minimum
guaranteed rate would, in effect, mean an increase in .wages for em-
ployees whose production was habitually low and whose production
would continue, in the future, to fall below the guaranteed rate. The
normal procedure would have been to negotiate the guarantee and
then jointly to apply to,the National War Labor Board for its ap-
proval. It is thus clear that the weavers went on strike to compel
negotiation of their wage demands and not for wage increases without
the approval of the National War Labor Board. For the foregoing
reasons, we conclude that the principle enunciated in the American
News case is inapplicable to the instant proceeding.s
The respondent further contends, inter alia, that Painter was not
reemployed for the reason that the respondent had filled the position
formerly occupied by Painter when he applied for reinstatement. On
the first day of the strike, April 10, 1943, Overhauler J. L. Cochran
performed Painter's duties.9 On Monday, April 12, a new employee,
' Matter of American News Company, Inc, 55 N L R B. 1302.
8 See Matter of Indiana Desk Company, 58 N. L. R. B. 48.
8 Only 2 overhaulers were employed for the entire 3 shifts of the mill's operations.
Overhaulers performed major repairs involving complete cessation of work on the looms
for lengthy periods of time Overhaulers were paid 70 cents an hour. Each of the
mill's 3 shifts were divided into 4 sections, each comprising 96 looms To each section,
on each shift, a loom fixer was assigned. When the plant was in full operation and all
positions were filled, there were thus 12 loom fixers employed The loom fixers performed
minor repairs and adjustments necessary to keep the looms in operation. Loom fixers
in sections 1 and 2, which were devoted to ordinary production, received 70 cents an hour.
The loom fixers in section 4 received 75 cents an hour, since this section made tubing which
involved considerable more work than did ordinary production. The loom fixers in section
3 were paid between 70 and 75 cents an hour, depending upon the proportion of tubing
manufactured on the looms of this section.
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Huffstetter,. was hired to take Painter's job as loom, fixer in section 4
on-the first shift. However, Huffstetter was not able to do the work and
was dismissed on the following day. On April 14, according to the
respondent's witnesses, Overhauler J. A. Manor was transferred to the
position Painter had occupied. Painter requested reinstatement for
the first time on April 15. He was not reinstated but was told by
Gibson to see Jones the following week. On April 23, Painter asked
Jones for reinstatement. Jones refused to reemploy Painter, telling,
him that he had quit and that his job had been filled. Sometime in
April, employee E. V. Belcher, who therefore had worked as a weaver,
was transferred to loom fixing.10 In August 1943, without recalling
Painter, the respondent replaced Manor with Belcher as loom fixer on
the first shift in section 411 Painter's duties, were thus performed
by Manor from April 14 to August 1943.13 Moreover, the respondent
hired a new loom fixer about April 15, the date Painter initially ap-
plied for reinstatement. Its pay roll for the week ending April 22,
1943, lists J. R. Turner for the first time as loom fixer in section 1, and
he is listed as such on each pay roll thereafter until that of the week
ending May 13, 1943.13 On the basis of the pay-roll lists, we find that
Turner was first hired as a loom fixer during the week beginning April
15 and that he quit sometime between May 6 and 13, 1943. Although
Turner did not assume Painter's duties in section 4, but rather worked
as loom fixer in section 1, Turner's employment is significant insofar
as it demonstrates that a vacancy for a loom fixer arose in section 1
between April 15 and 22.14 Since the work in section 1 was less arduous
than that in section 4, it is clear that Painter, a loom fixer of long ex-
perience, could have performed the duties of loom fixer in section 1.15
We conclude, as did the Trial Examiner, that at the time Painter re-
quested reinstatement his position had not been filled in such a manner
as to preclude the respondent from reinstating him.
The respondent also contends that Painter had become inefficient
in his work performance before April 9, 1943, and that it was "glad"
that he had "quit." The testimony with regard to Painter's alleged
inefficiency is vague and unconvincing and is manifestly implausible
when considered in the light of Painter's employment history. We
11 The record does not reveal whether Belcher's transfer occurred before or after the
strike had begun.
" At oral argument before the Board , counsel for the respondent stated that at this
time Manor quit , having obtained employment elsewhere , but that he subsequently returned
to the respondent ' s employ
iz However , no one was hired to fill the position of-overhauler which was vacant during
this period . Manor devoted his entire time to loom fixing between April and August
'1 The oral testimony with regard to the dates of Turner ' s lining and separation is
indefinite
14 The record does not reveal the employment history of the loom fixer who preceded
Turner in section 1
15 At oral Argument before the Board , in discussing the reasons for the respondent's
refusal to continue Painter in its employ , counsel for the respondent stated that one of
the reasons was that Fainter had been the only employee to urge others to strike.
UNION-BUFFALO MILLS COMPANY 389
concur in the Trial Examiner's evaluation of the evidence on this issue.
Painter had been employed by the respondent since 1911. In October
1942, he was selected, from the ranks of all loom fixers, to assist in the
set-up looms in section 4 devoted to the weaving of "tubing" for use of
the U. S. Army and Navy. The work of section 4, the only section in
the plant wholly devoted to such production, was considerably more
complicated than that of the remaining sections. Moreover, each loom
fixer on the three shifts of section 4 received 5 cents an hour more than
the loom fixers whose work was concerned with ordinary production
exclusively; thus Painter was one of the three highest paid loom fixers
in the plant.
In addition, the respondent argues that the policy at its Fairmont
mill was never to discharge an employee outright and that, but for
such policy, Painter would have been discharged. The evidence does
not support the contention as to the alleged discharge policy. To sup-
port the respondent's contention Overseer Riddle testified that he had
never discharged an employee in 15 years and that his formula was
as follows : "I say, `Well, if you are not going to do your work or don't
want to do it right, do the right thing about it, or don't want to co-
operate with nie about it, I will give you your time,' and nine times
out of ten they fly off mad and say `Let met have it."' Riddle further
testified as follows with regard to the employment of Huffstetter, who
assumed Painter's job for 2 days: "I says, `Mr. Huffstetter, I don't be-
lieve that you are going to be able to run that job.' And he says,
`Well,' he says `I don't believe I am either.' And I says, `Now, there
was no hard feelings and to save you a moving bill I believe it would
be the best thing to just settle up with you and let you go somewhere
else.' And he says, `That is satisfactory."' " We conclude that the
respondent's contention as to Painter's alleged inefficiency is without
merit.
The respondent finally contends that Painter was not reemployed
because he had been "disloyal" in that he had stopped work on produc-
tion of vital war material and had urged other employees to join in the
strike and cease production. We find, as did the Trial Examiner, that
this contention amounts to an admission that Painter was not re-
employed because he had engaged in concerted activities protected by
the Act. The fact that the other strikers were reemployed indicates
that the real reason for the respondent's refusal to reinstate Painter
was not his disloyalty but rather his union activities as leader of the
strike.
We conclude and find, as did the Trial Examiner, that L. B. Painter
was refused reinstatement on April 15, 1943, and thereafter, because
16 Although Riddle and Gibson testified that they had discussed with Painter his work
performance, it does not appear that they eN er talked to Painter in this manner. Ad-
mittedly, Painter was never warned of impending discharge because of his alleged
inefficiency.
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he assisted the Union and engaged in concerted activities with other
employees for the purposes of collective bargaining and that' such
refusal was, in effect, a discharge:
With respect to Dahlia Painter, the respondent contends that it
believed that she had quit and argues in support of such contention
that she never requested work after April 7, although she saw Super-
intendent Gibson two or three times weekly- at •the ^ company store.
However, it is clear that throughout the many years of her employ-
ment by the respondent it was customary to summon her to work b:
special messenger when new lines were being run. The respondent
also argues that it informed the Regional Director after the filing
of charges by the Union that Mrs. Painter could have work whenever
requested and whenever there was "drawer-in" work. However, such
'information was not relayed to Mrs. Painter; and neither Super-
intendent Gibson nor any other management representative ever in-
formed her of the respondent's attitude or asked her to work, although
Gibson saw her two or three times each week. The respondent's fur-
ther argument that it deemed her to have quit along with her husband
is refuted, as the Trial Examiner found, by the fact that Painter
requested reemployment for himself on April 15 and 23. The fact
that Mrs. Painter's name was not included in the list of strikers de-
siring reinstatement, which Painter presented on April 15, is without
significance since she was not,a striker. We find, as did the Trial
Examiner, that the respondent failed and refused to employ Dahlia
Painter after April 9, 1943, because her husband was the leader of the
Union and engaged in concerted activities with other employees for
their mutual protection. We further find that, by discharging and
refusing to reinstate L. B. Painter and by refusing to employ Dahlia
Painter, the respondent discriminated with respect to their hire and
tenure of•employment within the meaning of Section 8 (3) of the
Act and thereby interfered with, restrained, and coerced its em-
ployees in the exercise of rights guaranteed in Section 7 of the Act.
THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we shall order that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of
the Act, including reinstatement with back pay for L. B. Painter and
Dahlia Painter,
The respondent urges that it should not be required to make L. B.
Painter ,whole for loss of pay because he did not make a reasonable
effort to obtain employment elsewhere. Painter did not file an appli-
cation for employment with the United States Employment Service
until early in September 1943, for the reason, according to his testi-
mony, that he was not aware of the function of the United States
UNION-BUFFALO MILLS COMPANY 391
Employment Service until it was bi ought to his attention by a repre-
sentative of the Union late in August. Between April and August
1943, he made no attempt to find employment elsewhere. When he
registered with the United States Employment Service in September,
he was offered a job on the third shift beginning at midnight in an-
other mill some 8 or 9 miles distant from Fairmont, but he was unable
to accept- the position because he had no automobile and there was
no means of public' or other conveyance between Fairmont and the
other mill?7 Painter testified that he had lived in Fairmont since
1911; that he desired reinstatement at the respondent's mill; that, to
his knowledge, the respondent needed loom fixers; and that, due to the
filing of charges, he believed his reinstatement would be imminent.
He had continued to live in the company-owned house and had not
paid any rent thereon or any electricity bills since April 1943.
In view of our policy enunciated in the Ohio Public Service Com-
pany case,18 we find that Painter did'not make the kind of effort to
obtain other employment which, under present conditions, a dis-
charged employee may reasonably be expected to make. His loss of
earnings, between the date, of his discharge and the date that he regis-
tered with the United States Employment Service, is therefore found
to have been a type of loss for which the respondent should not and
will not. be directed to reimburse him. We find, however, that the
position offered him when he registered with the United States Em-
ployment Service was not substantially equivalent to his position with
the respondent and that its rejection by Painter, under the circum-
stances, was not a willfully incurred loss. We shall, therefore, order
the respondent to offer L. B. Painter immediate and full reinstate-
ment to his former or substantially equivalent position without preju-
dice to his seniority and other rights and privileges, and to make him
whole for any loss of pay he has suffered or may have suffered by
reason of the discrimination against him, by payment to him of a
sum of money equal to the, amount which he normally would have
earned as wages during the period from the date he registered with the
United States Employment Service to the date of the respondent's
offer of reinstatement, less his net earnings 1fl during such period.
Having also found that the respondent discriminated in regard to
the hire and tenure of employment of Dahlia Painter, we shall order
that the respondent offer her immediate and full reinstatement 'to her
17 It is not clear how he was able to obtain State unemployment compensation without
registering with United States Employment Service
78 Matter of The Ohio Public Service Company , 52 N L R B 725 -
19 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Company, 8 N. L. R B. 440 . Monies received for work performed upon
Fderal, State , county, municipal, or other work-relief projects shall be considered as earn-
ings. See Republic Steel Corporation v. N. L. R. B., 311 U. 8 7.
392 DECISIONS OF_NATIONAL LABOR RELATIONS BOARD
former or substantially equivalent position, and to make her whole
for any loss of pay she may.have suffered because of the respondent's
discrimination against her, by payment to her of a sum of money equal
to the amount which, but for the respondent's discrimination against
her, she normally would have earned as wages during the period from
the date of the discrimination to the date of the offer of reinstatement,
less her net earnings during such period.20
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, Union-Buffalo Mills Com-
pany, Fairmont, South Carolina, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in United Textile Workers of Amer-
ica (AFL), Local Union No. 2135, or any other labor organization of
its employees, by discriminating in regard to their hire or tenure of
employment, or any term or condition of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Textile Workers of Amer-
ica (AFL), Local Union No. 2135, or any other organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities, for the purposes of collective bargain-
ing or other mutual aid or protection, as guaranteed in Section 7 of
the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to L. B. Painter and Dahlia Painter immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges;
(b)• Make whole L. B. Painter for any loss of pay suffered by him
by reason of the respondent's discrimination against him by payment
to him of a sum of money equal to the amount which he normally would
have earned as wages from the date of his registration with the United
States Employment Service to the date of the respondent's offer of
reinstatement, less his net earnings during such period ;
(c) Make whole Dahlia Painter for any loss of pay suffered by her
by reason of the respondent's discrimination against her, by payment
to her of a sum of money equal to the amount which she normally
would have earned as wages from the date of the respondent's dis-
20 See footnote 19, supra.
UNION-BUFFALO MILLS COMPANY 393
crimination against her to the date of the respondent's offer of rein-
statement, less her net earnings during such period;
(d) Post immediately in conspicuous places throughout its mill at
Fairmont, South Carolina, and maintain for a period of not less than
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 in paragraphs
1 (a) and (b) of this Order; (2) that the respondent will take the
affirmative action set forth in paragraphs 2 (a), (b), and (c) of this
Order; and (3) that the respondent's employees are free to become
or remain members of United Textile Workers of America (AFL),
Local Union No. 2135, and that the respondent will not discriminate
against any employee because of membership in or activities on behalf
of that organization;
(e) 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.
CHAIRMAN MiLLis took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr. John H. Garver, for the Board
Messrs. L. W. Perrin, and A. E. Tinsley, of Spartanburg, S. C, and John D. Jones,
of Union, S. C., for the respondent.
Mr. W. R. Herrod. of Spartanburg, S. C., for the Union.
STATEMENT OF THE CASE
Upon an amended charge filed March 30, 1944, by United Textile Workers of
America (AFL), Local Union No. 2135, herein called the Union, the National
Labor Relations Board, herein called the Board, by its Regional Director for the
Tenth Region (Atlanta, Georgia), issued its complaint, dated April 6, 1944, against
Union-Buffalo Mills Company, 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 the Act. Copies
of the complaint and notice of hearing thereon were duly served upon the re-
spondent and the Union. -
With respect to the unfair labor practices. the complaint alleges, in substance:
(1) that on April 16, 1943, the respondent discharged and refused to reinstate L.
B. Painter because he participated in a strike and because he joined and assisted
the Union and engaged in concerted activities with' other employees for the
purpose of collective bargaining or other mutual aid or protection; (2) that since
the same date the respondent had refused to employ Dahlia Painter because she
is the wife of L. B. Painter , and because she joined and assisted the Union and
engaged in concerted activities as above described ; and (3 ) that by these acts
the respondent interfered with , restrained and coerced its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In its answer, undated but filed with the Regional Director before the opening
of the hearing, the respondent denied having engaged in any unfair labor prac-
tices but set forth certain affirmative allegationswhich will be discussed herein-
after.
Pursuant to notice, a hearing was held in Spartanburg, South Carolina,
on May 22 and 23, 1944, before the undersigned Trial Examiner, duly desig-
nated by the Chief Trial Examiner. The Board and the respondent were rep-
resented by counsel, the Union by a representative. All parties participated
in the hearing and were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing upon the issues.
At the close of the hearing the Trial Examiner granted a motion, made without
objection by counsel for the Board, to conform the pleadings to the proof in
minor particulars.
Following the receipt of all evidence and testimony, counsel for the Board
and counsel for the respondent argued orally before the Trial Examiner, the
arguments appearing in the official transcript of the proceedings. Thereafter
counsel for the respondent filed with the Trial Examiner a written "addition to
oral argument" and a brief.
Upon the entire record in the case and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT,
1. THE BUSINESS OF THE RESPONDENT
Union-Buffalo Mills Company is a New York corporation. Its principal place
of business is in Greenville, South Carolina. It owns and operates a cotton tex-
tile mill located at Fairmont, South Carolina, the only plant with which this
proceeding is concerned. At its Fairmont plant the respondent is engaged in
the manufacture, sale and distribution of cotton sheeting and print cloth. The
principal raw materials used at this plant include cotton, coal and starch. Raw
materials valued at more than $200,000, or about 50 percent of the total used
annually, are obtained from the States of Georgia, Alabama, Mississippi, Texas,
and other States other than South Carolina. About 80 percent of the products
finished at this plant, valued, at more than •$500,000 annually, are sold, delivered
and transported in interstate commerce to and through states other than South
Carolina. The respondent concedes that it is engaged in commerce within the
meaning of the Act. -
II. THE ORGANIZATION INVOLVED
United Textile Workers of America (AFL), Local Union No. 2135, is a labor
organization admitting to membership employees of the respondent at its
Fairmont plant.
III. THE UNFAIR LABOR PRACTICES
A. The discriminatory refusal to reinstate L. B. Painter and Dahlia Painter
follounng a strike in April, 1943
1. Events preceding the strike
During an undetermined"' period before"April, 1943, weaving operations at
the Fairmont plant were on a three-shift basis. Thus, in a full day, a set of
looms was run by three weavers, one on each shift. They were paid on a
"poundage" basis. Once each day the cloth produced on a set of looms was
weighed, the total weight was divided by three, and each of the three weavers,
if regularly assigned as such, was accredited with an equal share of the total
UNION-BUFFALO MILLS COMPANY 395
production If one of the three weavers was a "learner," or inexperienced, he
was paid by the hour. The other two continued to share two-thirds of the
total day's production, despite the fact that the normal total might be appreciably
reduced. Some of the weavers became dissatisfied with the decreasing amount
of wages they were receiving. On Thursday, April 8, when the four weavers
of the second shift received their "statements," they "stopped off" their looms
because, one of them explained at the hearing, "we were making less than what
we had made " Superintendent L. B Gibson came to the weave room, agreed
to do something about their complaint the next day, and the weavers resumed-
their work. When the same weavers reported for the second shift the next
clay, Gibson told them, "you got a better run off this week and bound to pick,
up." The weavers were not content with this settlement of their grievance,
"stopped off" the looms, and sent for loom-fixer L. B. Painter, who then was,
and for many years had been, head of the Union.' They met Painter and Super-
intendent Gibson outside the mill. One of the weavers told Gibson that Painter
was to represent them, and the five employees, together with the superintendent,
proceeded to the office of General Superintendent John D. Jones. Painter and
the weavers explained the grievance. After some discussion Jones stated that
although wages were frozen, he would make arrangements to guarantee that
the regular weavers, being paid on a poundage basis, would receive at least as
much as "spare hands," who were paid by the hour. Jones then left the office.
The weavers- went outside, considered Jones' offer, and decided that they were
not satisfied with it. At their request, Painter informed Gibson of their decision
not to return to work.
A number of weavers on other shifts thereafter joined in the work "stoppage."
During the ensuing week, so far as the record reveals, neither the weavers nor
management made any effort to resume negotiations.
2. End of the strike; strikers except Painter reinstated upon request
Although he was a loom-fixer and had no grievance directly relating to his
own wages or working conditions, Painter stayed out with the weavers and
participated in the effort to gain support among other workers for them. On
April 15 the striking weavers met at Painter's home, a company-owned dwelling
situated a few yards from the mill office, and voted to return to work. Painter
thereupon went to the mill office, presented Gibson with a list of 19 employees,2
and requested reinstatement for all. Gibson told him that they must apply
individually. Painter reported back to the group at his home. Those who
separately went to the office and asked for their jobs were thereafter reinstated,
with the exception Of Painter. Painter applied, as an individual, on April 15,
but was not reinstated. He was told that he must see Jones, when the latter
came to the mill the following week.
On April 23 Painter asked Jones for reinstatement. Jones refused, telling him
that he had quit and that his job had been filled. Painter was later given a
separation slip, bearing a notation made by the respondent that the reason
for his "separation" was that he had "voluntarily quit," and "left on his own
accord."
'The Union was first organized about 1933. At one period its international affiliation
was transferred from the A. F of L to the C. I 0 Following ad-election in 1938, won`"by
the Union, the respondent and the Union, then affiliated with the C. I. 0., entered into a
collective bargaining agreement. Painter was then president of the Union. At a Board
election in 1942, when the Union was affiliated with the A F. of L., it failed to poll a
majority. The Union, however, has since then continued in existence, with Painter as its
president.
2 According to Gibson's testimony, it appears that four or five employees thus listed had
been out ill and had not been on strike.
E
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Failure of the respondent to employ Dahlia Painter after April 9
Dahlia Painter, as well as her husband, worked at the respondent's plant
from 1911 to April 1943. For some time before April, she and one other woman
were engaged in work called "drawing in." She worked only when new patterns
were being prepared. While a job was in process she worked each day; when
finished she remained at home until a new pattern was to be made. Whenever
her services were again required, it had long been the custom for management
to send someone up to the house for her. Since April 7, 1943, Mrs. Painter has
not been 611ed for any work by the respondent.
4. The respondent's contentions as to L B. and Dahlia Painter
(a) As to L. B. Painter
In its answer the respondent advances the following allegations as its reasons
for not reinstating L B. Painter when he applied on April 15.
(1) "... for a number of years and for several months" before April
9, 1943, Painter had become "more and more inefficient" in performance
of his duties, but the Plant Superintendent had hesitated to discharge him
because of his length of service and because of the hope that he would im-
prove. When he "elected to quit" on April 9, however, the respondent was
"very glad" and immediately "filled his job."
(2) The respondent's production records showed that during fourteen
weeks after April 9, Painter's successor increased production on the same
operation 10-percent over that of Painter's production record for the same
length of time before April 9. Having compared such records, the respond-
ent felt that it "owed a high obligation to the United States Government to
keep on the job a man who had demonstrated his greater interest and higher
productivity."
(3) On April 9 Painter was working on the only "section" in the weave
room wholly engaged in weaving for the U. S Government; he knew that
that cloth was "sorely needed and a delivery thereof would probably result
in the saving of the lives of our boys", but that he nevertheless quit his job,
and "exercised every effort that he could individually and not collectively to
persuade, intimidate and coerce other employees to follow his example "
Because of this "lack of loyalty" to the respondent and to the United States,
the respondent refused to reinstate him.
In a number of important respects the evidence adduced by the respondent falls
far short of supporting the facts alleged by the respondent to have been the
basis for its decision not to reinstate Painter, thus casting doubt upon the validity
of its other allegations. As to (2) above, the comparative production of Painter
and his successor, no merit could be accorded the better record of the successor,
even if proven, as a reason for failing to reinstate Painter on April 15. On that
date, the respondent could hardly have known, in advance, what Painter's suc-
cessor or successors would accomplish during the next fourteen weeks. But the
record fails to prove the facts alleged. During the hearing the respondent with-
drew an offer of what it claimed to be comparative production records, referred
to in the answer, after examination of the documents made it apparent that they
were actually not the individual records either of Painter or his successor. And
no records bearing upon the point were thereafter offered by the respondent.
As to that part of (1) which alleges that Painter's job was "immediately filled",
the testimony of the respondent's own witnesses established that, while work on
the looms continued during Painter's absence, it was mainly performed by loom-
UNION-BUFFALO MILLS COMPANY 397
fixers or overhaulers already on the respondent 's pay roll,' and no new loom-
fixer was employed to take Painter's place until just , before April 22, several
days after Painter applied for reinstatement. -
As to the part of (1) which alleged that Painter's work had been unsatisfactory
before April 9, Plant Superintendent Jones testified :
I had had complaints in the past his services were not satisfactory . . .
He declared that he had received complaints about Painter from Superintendent
Gibson "several times over a period of two or three years perhaps." He esti-
mated the number of times such complaints reached him as four or five, but
said that he had advised Gibson not to discharge him. Gibson testified :
. . . Many nights I worried over him trying to get him to work . . . I have
no objection to his sending for his breakfast once or twice a week and sitting
down for a half hour and eating his breakfast but that man, every morning, -
the first thing, his wife would bring his breakfast and sit out for just as
long as he could and eat his breakfast and us paying him 75 cents an hour
and having to put loom overhaulers and all like that on his job to run it,
and the weavers and loom fixers are grumbling about him not running his
job.
Except for the "breakfast" episodes, Gibson cited no specific instances of Painter's
failure to work, nor did he claim that he ever told Painter not to eat his break-
fast on company time or that there was any rule against a practice which he ad-
mitted was permissible "once or twice a week". It is common knowledge, in the
Trial Examiner's opinion, that breakfast, if eaten at all, is a daily habit for
most employees and not indulged in only "once or twice a week." Nor did Gibson
cite any specific instances of complaints received from weavers or loom fixers
about Painter. At one point he testified that an `over-hauler", who regularly
repaired looms, complained about "running" Painter's job, but his later testimony,
however, as well as that of the overhauler, established that the actual grievance
was not that he had to help Painter, but that while helping him he received less
money for loom-fixing than Painter was getting. Overseer Riddle, under whom
Painter directly worked, testified that he had known the latter for 31 years,
and that he had done as well at loom-fixing as "anybody else" until the last few
months of his employment. He declared that during the last few months it had
been. necessary to have an overhauler help Painter on the loom-fixing job. The
testimony of Riddle, however, and that of other members of management, estab-
lishes that the nature of the job, and not Painter's inefficiency, created the
necessity for a helper. Management witnesses admitted that in October, 1942,
Painter had been selected, of all loom-fixers, to assist in the set-up and to take
charge of operating a set of looms devoted especially to the weaving of "tubing",
designed for use of the Armed Forces. They admitted, also, that Painter's sec-
tion was the only section wholly engaged in such production, that the process
was more complicated than that used on other sections, and that there was con-
siderably more work involved in keeping the looms in operation. They admitted,
moreover, that Painter was the highest paid loom-fixer employed at the plant,
and Gibson stated that he cared for its "most important" section of looms.
When asked why, if Painter's work was unsatisfactory, he continued to keep
him on this section , Gibson replied :
. . . he had been with us all these many years, and we were still trying to
get some work out of him and thought that maybe some one of these days
he would wake up and change his attitude and go to work.
a During the second and third day of Painter ' s absence , a new employee was tried out on
the job, but was then asked to leave because he could not perform its duties satisfactorily.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He also declared :
The boss is an awful good Christian man over there,, and this man has been
with us a long, long time.
(b) As to Dahlia Painter
In its answer the respondent alleges that it has never refused employment to
Dahlia Painter, and that it is and has been perfectly willing to employ her in the
job in which she was engaged "when, as and if" the work becomes available
As in the case of her husband, the testimony of the respondent' s witnesses
wholly refutes the allegations of its answer. Riddle testified that sometime in
April 1943 Gibson told him to "put somebody on" to learn to draw in, that he
had thereupon assigned his own daughter to this work, and that she had worked
at this job ever since then Gibson testified that he "just' thought" Mrs. Painter,
"had quit with her husband." but admitted that there had been work for her
since April 7. Since reinstatement was refused Painter on April 15 by Gibson
himself, no credence can be accorded his explanation that he "thought" Airs.
Painter had "quit with her husband".
Conclusions
In short, the contentions of the respondent as to both L B and Dahlia Painter,
except as they refer to the former's participation in the strike, either lack
credible support in the evidence or are completely refuted by the respondent's own
witnesses. The Trial Examiner concludes and finds that there is no merit in the
respondent 's claims: (1) that Painter was refused reinstatement because his
job was filled at the time he applied or because his work before April 9 had been
unsatisfactory; and (2) that Dahlia Painter had been given no work since
April 7 because no work has been available.
The other contention of the respondent,-that Painter was denied reinstate-
ment because of his "disloyalty" in leaving his work, is plainly an admission of
Painter's strike activities. The respondent well knew that Painter had "struck"
with the weavers, although he had no personal grievance. It knew that he had
been for years the head of the Union, since he had previously joined with its
own officeis in signing a contract and had brought grievances to management.
It knew that Painter was the spokesman for the weavers, and with them had
presented their complaint about wages to Jones, before the strike. Gibson ad-
mitted having heard Painter urge at least one weaver on another shift, to join
the strike Painter also, led the collective effort to seek reinstatement of the
strikers. The denial by counsel for the respondent, in oral argument, that
fainter had engaged in "concerted activities," while at the same time admitting
that he had participated in the work stoppage with the weavers is, at best, a
rhetorical inconsistency and a contradiction in terms. The undersigned further
finds that there is no merit in the respondent's contention that Painter was
discharged for "disloyalty".
The Trial Examiner concludes and finds that L B. Painter was refused rein-
statement on April 15, 1943, that such refusal was, in effect, a discharge, and
that such discrimination in his hire and tenure of employment was because he
assisted the Union and engaged in concerted activities with other employees for
the purpose of collective bargaining It is also found that the respondent failed
and refused to employ Dahlia Painter, 'after April 9, 1943. becau,§e her husband
UNION-BUFFALO MILLS COMPANY 399
was head of the Union and engaged in concerted activities .' By discharging and
Iefusing to reinstate L. B. Painter , and by refusing to employ Dahlia Painter,`
the respondent has discouraged membership in the Union and concerted activities
on the part of employees for the purpose of collective bargaining or other mutual
aid or protection , and has interfered with, restrained , and coerced its employees
in the exercise of rights guaranteed in Section 7 of the Act.
In his "addition to oral argument ," counsel for the respondent apparently
refers to "The American News Company, Inc.," case as an additional authority
for not refusing to reinstate Painter. The cases clearly are not analogous, and
the Trial Examiner finds the contention to be without merit.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent, set forth in Section III, above, occurring
in connection with the operation of the respondent's business described in Section
I above, have a close, intimate and substantial relation to trade, traffic and com-
merce among the-several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce
Since it has been found that the respondent has engaged in certain unfair
labor practices, it will be recommended that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act
It has been found that the respondent discriminated in regard to the hire
and tenure of employment of L. B. Painter and his wife, Dahlia Painter. There-
fore it will be recommended that the respondent offer them immediate and
full reinstatement to their former or substantially equivalent positions. It will
be further recommended that the respondent make them whole for any loss of
pay they may have suffered by reason of the discrimination by payment to
each of them of a sum of money equal to the amount he or she would normally
have earned as wages during the period from the date of the discrimination
against him or her to the date of the offer of reinstatement, less his or her
net earnings ° during said period.
Counsel for the respondent urges that the respondent should not be re-
quired to make L. B. Painter whole for loss of back pay because he did not
make a reasonable effort to obtain employment elsewhere. Under the circum-
stances revealed herein, the Trial Examiner finds no merit in this contention.
The Painters live in a wholly owned company village, miles from any other
community. They had both worked for the respondent since 1911. They lived
in a company-owned house. After his discharge the respondent permitted them
to live there without paying rent. Painter knew nothing about making his
availability known to the U. S. Employment Service until late in August or
early in September, 1943 He then reported as recommended by someone at the
Union office, and was offered a job in another town, miles from the company-
4 The complaint alleges that she was discharged for the additional reasons that she joined
the Union and engaged in concerted activities The Board failed to adduce any proof that
she was a Union member , or that she joined in the strike
5 Memphis Furniture Mfg Co, 96 F (2d) 1018 (C. C A 6).
6 By "net earnings " is meant earnings less expenses , such as for transportation, room,
board, incurred by an employee in connection with obtaining ilork and working elsewhere
than for the respondent , which would not have been incurred but for his unlawful dis-
charge and the consequent necessity of seeking employment elsewhere See Matter of
Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America,
Lumber Workers Union, Local 2590, 8 N. L. R B 440 Wines receded for work performed
upon Federal , State, county , municipal , or other work -relief projects shall be considered
as earnings See Republic Steel Cot poratson v N. L R . B , 311 U. S 7.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
owned village. The job was on the night shift; he was without means of trans-
portation and did not accept the job. He has been notified of no other offer
since then.
Upon the basis of the above findings of fact and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. United Textile Workers of America (AFL), Local Union No. 2135, is a labor
organization within the meaning of Section 2 (5) of the Act. -
2. By discriminating in regard to the hire and tenure of employment of L. B.
Painter and Dahlia Painter, thereby discouraging membership in United Textile
Workers of America (AFL), Local Union No. 2135, 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.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the Trial
Examiner recommends that the respondent, Union-Buffalo Mills Company, its
officers, agents, successors and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in United Textile Workers of America (AFL),
Local Union No. 2135, or any other labor organization of its employees, by dis-
couraging or refusing to reinstate any of its employees, or in any other manner
discriminating in regard to the hire and tenure of employment or any terms or
conditions of their 'employment ;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the rights of self-organization, to form labor organiza-
tions, to join or assist United Textile Workers of America (AFL), Local Union
No. 2135, or any other labor organization, to baigain collectively through repre-
sentatives 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.
2. Take the following affirmative action which the Trial Examiner finds will
effectuate the policies of the Act :
(a) Offer to L. B. Painter and Dahlia Painter immediate and full reinstate-
ment to their former or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges;
(b) Make whole L. B. Painter and Dahlia Painter, in the manner set forth
in the section entitled "The remedy," for any loss of pay they may have suffered ;
(c) Post immediately in conspicuous places throughout its mill at Fairmont,
South Carolina, 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 recommended that it cease and
desist in paragraphs 1 (a) and (b) of these recommendations; (2) that. the
respondent will take the affirmative action set forth in paragraphs 2 (a) and
(b)-of the recommendations; and (3) that the respondent's employees are free
to become or remain members of United Textile Workers of America (AFL), Local
UNION-BUFFALO MILLS COMPANY 401
Union 2135, and that the respondent will not discriminate against any employee
because of his membership in or activities on behalf of that organization.
(d) Notify the Regional Director for the Tenth Region in writing within ten
(10) days from the date of the receipt of this Intermediate Report, what steps
the respondent has taken to comply herewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring the respondent
to take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, effective November 26, 1943, any
party or counsel for the Board may within fifteen (15) days from the date of
the entry of the order transferring the case to the Board, pursuant to Section 32
of Article II of said Rules and Regulations, file with the Board, Rochamblau
Building, Washington, D. C., an original and four copies of a statement in
writing, setting forth such exceptions to the Intermediate Report or to any
other part of the record or proceedings (including rulings upon all motions or
objections) as he relies upon, together with the original and four copies of a
brief in support thereof. Immediately upon the filing of such statement of
exceptions and/or brief, the party or counsel for the Board filing the same shall
serve a copy thereof upon each of the other parties and shall file a copy with the
Regional Director. As further provided in said Section 33, should any party
desire permission to argue orally before the Board, request therefor must be
made in writing within ten (10) days from the date of the order transferring
the case to the Board.
C. W. WHITTEMORE,
Trial Examiner.
Dated June 7. 1944.
609591 -45-vol. 58-27