West Boylston Manufacturing Co.

National Labor Relations Board - Board Decisions

Dec 16, 1949

87 N.L.R.B. 808 (N.L.R.B. 1949)

In the Matter Of `VEST BOYLSTON MANUFACTURING COMPANY OF
ALABAMA and TEXTILE WORKERS UNION OF AMERICA, C. I. O.
Case No. 15-CA-26.-Decided December 16,1919
DECISION
AND
ORDER
. On February 15, 1949, Trial Examiner Merritt A. Vickery issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged 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 Intermediate Report
attached hereto. The Trial Examiner also found that the Respondent
had not engaged in certain other alleged unfair labor practices and
recommended that the complaint be dismissed with respect to such
allegations. Thereafter, the Respondent filed exceptions to the In-
termediate Report and a supporting brief. The Union filed a brief
in support of the Intermediate Report.'
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed.2 The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, insofar as they are consistent with the
findings, conclusions, and order hereinbelow set forth.3
I As the record , the exceptions , and the briefs adequately present the issues and positions
of the parties, the Respondent's request for oral argument is denied.
8 Ave find no merit in the Respondent ' s wholly unsupported charges against the Trial
Examiner of bias and prejudice and misconduct in attempting to exert "his influence
and pressure" on the parties " to adjust and settle the case" and "in reviewing with and
making available to Counsel for the charging Union information as to the Intermediate
Report" before its official release . We base our findings and order in this ease on our
own independent appraisal of all the relevant evidence.
3 Because no exceptions were taken to the Trial Examiner ' s findings that certain state-
ments made by the Respondent 's supervisors and contained in letters from officials were
not coercive within the meaning of Section 8 (a) (1) of the Act, we shall accept his find-
ings. In so doing, however , we do not pass on the correctness of these findings or the
underlying reasons. Nor do we subscribe to the Trial Examiner 's comments in his report
which seem to indicate that Section 8 (c), as construed by the Board, precludes finding
implied threats to be violative of Section 8 (a) (1).
87 NLRB No. 132.
808
WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 809
1. We agree with the Trial Examiner that the Respondent, in viola-
tion of Section 8 (a) (5) and (1) of the Act, refused to bargain col-
lectively with the Union as the statutory representative of the Re-
spondent's employees in an appropriate unit. As fully discussed in
the Intermediate Report, the Respondent's entire course of dealings
with the Union during all material times 4 was marked by bad faith
and an utter disregard for its bargaining obligations under the Act.
This attitude was reflected, among other things, (a) in the Respond-
ent's dilatory and evasive tactics in resisting the Union's efforts to
negotiate a new agreement and for the return to work of the laid-off
employees on resumption of operations following the plant shut-down;
(b) in its unfulfilled promises to notify the Union sufficiently in ad-
vance of the reopening of the plant for the purpose of negotiating a
new agreement, to recall the laid-off employees in accordance with
seniority practices prevailing at the time of the lay-off, to renew the
then expiring agreement or sign an extension agreement pending the
negotiation of a new contract, and to refrain from taking steps to
evict employees from company houses; 5 (c) in its unilateral action in
recalling laid-off employees ostensibly on the basis of merit rating,
without consulting the Union, despite prior assurances to observe
seniority, and terminating the employment of nonrecalled employees;
(d) in its repeated refusals to meet with the Union to discuss the list
of nonrecalled employees which the Union submitted pursuant to the
parties' understanding at the November 6, 1947, meeting, and to work
out further procedures for reviewing individual cases; 6' and (e) in its
flat rejection of the Union's request on February 3, 1948, to resume
bargaining, for the asserted reason that the Union lost its majority
status.
Plainly, this less-than-candid conduct of the Respondent- reveals
a contempt for the bargaining process and a fixed determination to
avoid reaching agreement with the Union, which it is the purpose of
the Act to promote. In these circumstances, to say, as the Respond-
ent argues, that the Respondent nonetheless performed its statutory
obligation to bargain because it conferred with the Union concerning
the resumption of operations and a new agreement, is to confuse pre-
' We find that the Respondent's unlawful refusal to bargain began at least on July 18,
1947, when Labor Counsel Constangy advised the Union's State Director Ryan that the
Respondent would either renew the then existing contract or sign an Interim extension
agreement, that the Respondent would recognize seniority as before, and that the provisions
of the contract would prevail. As subsequent events prove, the Respondent never intended
to fulfill the assurances thus given to the Union.
6 We, like the Trial Examiner , rely on the assurances which the Respondent ' s labor
counsel, Constangy, gave the Union in August 1947.
9 Instead , when the Respondent thereafter established a second shift on which all the
listed employees could have been hired, it again unilaterally recalled laid -off employees,
only 34 of whom were on the list."
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tence at bargaining with that good faith negotiation which the Act
requires and which was clearly wanting in this case.
The Respondent also attempts to justify its failure to discuss the
list of nonrecalled employees with the Union on the ground that the
Union neglected to submit a counterproposal to the Respondent's pro-
posal concerning the mechanics for handling the list. Similarly, the
Respondent contends, negotiations for a new contract were deadlocked
because of the Union's failure to submit a counterproposed seniority
clause. Apart from the fact that the nature of the Respondent's pro-
posals in these respects casts considerable doubt on its good faith that
it was actually seeking a resolution of the controversy rather than an
endorsement of its previous unilateral action, the impasse, if any, was
at most of a temporary character. It is undisputed that, although the
Union sought further meetings with the Respondent after the Novem-
ber 6 conference to discuss the matter of recall and a new agreement,
the Respondent turned down these requests. Moreover, tentative
agreements for reviewing the list in the initial stages had already been
reached at the November 6 meeting,? and there is no evidence that the
Respondent refused to proceed with discussions because of the Union's
alleged failure to submit counterproposals. Nor is there any evidence
that the counterproposals were a condition precedent to further bar-
gaining. Indeed, the record does not disclose that the parties agreed
that the Union, which had previously submitted its proposed contract,
was nevertheless required to submit additional counterproposals.
Equally untenable is the Respondent's defense for refusing to honor
the Union's request to resume negotiations of February 3, 1948, that
the Union lost its majority status by unlawfully advancing the inter-
ests of the nonrecalled employees to the detriment of the interests of
the recalled employees. It is clear,-however, that the Union's position
with respect to seniority was motivated by the interests of the em-
ployee group as a whole and represented a consistent policy from the
inception of its bargaining relations with the Respondent. At any
rate, we find that the Respondent never entertained, nor could it rea-
sonably entertain, any bona fide doubts of the Union's majority status.
Significantly, the Respondent admits that about 73 percent of the
recalled employees were union members, and there is no evidence that
T The record discloses that the parties agreed at the November 6 meeting that the Union
would submit a list of aggrieved employees who claimed reemployment rights ; the Re-
spondent would check the list and confer with the Union's shop committee ; differences
would he reviewed by Plant Manager Cook and the Union ' s State Director Ryan ; and ht
the event of disagreement between Cook and Ryan , the parties would try to develop fur-
ther procedure . In addition , it was agreed that the Respondent would submit proposed
mechanics for the handling of the list , and A proposed seniority clause to he included in
a new contract . The record , however , does not support the Trial Examiner ' s finding that
the parties also agreed , to postpone negotiations for a new contract until the disposition
of the list.
WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 811
any of them withdrew from the Union at the time of the latter's bar-
gaining demands. Indeed, the Respondent continued to recognize the
Union until at least December 1947, and, as recently as November 6,
suggested to the Union that it join the Respondent in signing a wage
raise stipulation, which was to be posted in the plant, in order to con-
tradict the alleged statements of supervisors to employees that the
Union was no longer "in the picture." Moreover, even assuming that
the Union did suffer a loss of majority at the time of the Respond-
ent's outright refusal to recognize the Union,11 such loss of majority,
we find, would manifestly be attributable to the Respondent's previous
unlawful refusals to bargain and would not be available to it as a
defense to the charges herein."
Quite apart from the foregoing, we find that the Respondent's
conceded unilateral action in recalling the laid-off employees on the
alleged basis of merit rating, without consulting the Union and in
disregard of its prior assurances to observe seniority, constitutes as
a matter of law a violation of Section 8 (a) (5) of the Act. It is too
well settled to require more than simple statement that an employer
who takes unilateral action, without conferring with its employees'
exclusive bargaining representative, with respect to matters which are
proper subjects for collective bargaining, is derelict in his statutory
obligation to bargain. Nor, contrary to the Respondent's suggestions,
is the performance of this duty excused by the mere anticipation of
the Union's opposition to the Employer's contemplated action. That
the matter of recall and termination of employment of employees laid
off as a consequence of a plant shut-down is a proper subject for col-
lective bargaining, cannot be denied.1°
Moreover, we find that the Respondent's unilateral action in ques-
tion also constitutes an independent violation of Section 8 (a) (1).
It is clear that the Respondent's conduct was calculated and necessarily
tended to undermine the Union's prestige in the eyes of the employees
and the Union's effectiveness as a bargaining representative. Espe-
cially is this so where, as here, the nature of the Respondent's unilateral
action was in complete disregard of its assurances to the Union-
manifestly to be transmitted to the laid-off employees-that their
seniority rights would be recognized when the plant reopened. We
8 Not only is such an assumption unsupported by the record, but also there is no evidence
to rebut the presumption of continuing majority which attached to the Union's certifica-
tion and its active representation of the Respondent's employees. Bethlehem Steel Com-
pany, 73 NLRB 277. 279-280.
9 Franks Bros. Company v. N. L. R. B., 321 U. S. 702.
10 Cf. National Licorice Company v. N. L. If. B., 309 U. S. 350, 460 (discharges) ; In-
land Steel Co. v. N. L. If. B., 170 F. 2d 247 (C. A. 7). cert. denied 336 U. S. 960 .(retirement
and pension plans ) N. L. R. B. v. Allison & Co., 165 F. 2d 766, cert. denied 335 U. S. 814
(merit wage raise) : N. L. R. B v Westingh ouse Air Brake Company, 120 F. 2d 1004, 1006
(C. A. 3) (seniority and lay-off plans).
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find that by this conduct the Respondent interfered with and re-
strained its employees in the exercise of their guaranteed rights to
bargain collectively through the Union for their return to work,
within the meaning of Section 8 (a) (1).
2. The Trial Examiner found that the Respondent, in violation of
Section 8 (a) (3), discriminatorily adopted a method of selection of
employees for recall purposes ""which ignored customary seniority
rights and did this as part of a plan to weaken and destroy the Union."
We do not agree that the preponderance of the evidence in the record
sustains this finding of discrimination. Unlike the Trial Examiner,
we are unable to infer on this record, from the Respondent's refusal
to honor its commitments to observe seniority in recalling laid-off
employees or from its disregard of the bargaining rights of its em-
ployees and their representative, a plan to weaken or destroy the
Union or that the Respondent was otherwise motivated by antiunion
considerations in adopting the so-called merit rating system. The
Respondent's conduct, although doubtlessly not beyond suspicion, is
also consistent with the view that the Respondent was prompted by a
desire to have a free hand in selecting the personnel for the reduced
number of jobs available when it resumed operations. Indeed, as the
Trial Examiner found, the proportion of union employees rehired
approximated the proportion employed before the shut-down. Al-
though the Respondent's conduct, as we have found above, demon-
strated bad faith, we are unable to conclude on the evidence before us
that it was also discriminatory. We shall accordingly dismiss the
complaint in this respect.
The Remedy
Having found that the Respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies of the Act.
We have found that the Respondent in its dealings with the Union
showed disregard for its bargaining obligations and commitments to
observe prevailing seniority practices in recalling laid-off employees.
.Instead, the Respondent, without consulting the Union, unilaterally
recalled a number of laid-off employees on the alleged basis of merit
ratings which completely ignored seniority as a factor in determining
eligibility 1' In this manner not only did the Respondent undermine
the Union and render it ineffective as a bargaining representative,
but also unlawfully interfered with its employees' right to bargain
collectively regarding their return to work on the resumption of op-
11 The record indicates that the Respondent also hired several employees who had neaer
previously worked for it.
WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 813
erations. Indeed, the Respondent, by unilaterally filling the available
positions, after it reopened the plant, contrary to its assurances, re-
moved the subject of reemployment of nonrecalled employees from
the field of collective bargaining, or at any rate has substantially
changed the basis upon which such negotiations could proceed. Man-
if estly, it would not be sufficient to purge the unfair labor practices
simply to order the Respondent to bargain in the future with the
Union concerning the reemployment of the nonrecalled laid-off
employees.
Under these circumstances, in order to effectuate the policies of the
Act and to prevent the Respondent from benefiting from its unfair
labor-practices, we shall direct the Respondent to restore, as far as
possible, the situation obtaining at the time of the initial refusal to
12 and which for all that appears, would have obtained had
the Respondent fulfilled its statutory obligations. As an integral part
of the Respondent's unlawful conduct was the complete nullification
of the seniority rights of the laid-off employees, we shall order the
Respondent to offer these employees full reinstatement on the basis
of such rights. Certainly, it would not lie in the Respondent's mouth
to deny that it intended this result, when it gave the Union the various
assurances as to its following seniority.
The Respondent has been operating (at least until. the date of the
hearing in this case) with a% reduced staff necessitated by economic
considerations. It also appears that the Respondent for legitimate
reasons has discontinued certain departments and nnade changes III
others. In these circumstances, the identity of employees entitled to
reinstatement under seniority practices is not readily ascertainable.
.We shall, therefore, direct the Respondent to restore to' the employ-
ment rolls all employees who were laid off during the reduction in
force which culminated in the plant shut-down on July 26, 1947; to
select therefrom in accordance with seniority practices then prevailing,
the employees entitled to be recalled to available jobs; and to offer
full reinstatement to such employees without prejudice to their sen-
iority or other rights and privileges, dismissing if necessary, persons
now occupying them. In the event the Respondent fails to offer
reinstatement as herein provided, it shall be liable to pay to each
employee so entitled to reinstatement a sum of money equal to the
amount he or she normally would have earned as wages during the
12 We have found above that the Respondent' s unfair labor practices began at least on
July I.S. 1947, before the expiration of its 1946--1947 contract with the Union , when its
Labor Counsel Constangy assured the Union ' s State Director Ryan that seniority as pro-
vided in that contract would prevail in the recall of employees . The assurance that
seniority would be followed was also repeated after the contract expired.
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period from 20 days after the date of this Order to the date of the
offer of employment, less his or her net earnings during said period.13
As for those laid-off employees for whom no jobs in their former
departments will be available because of insufficient seniority or be-
cause the departments in which they formerly worked were discon-
tintled or the operations therein were so materially changed that their
jobs for all practical purposes are no longer in existence, we shall
direct the Respondent to bargain in good faith with respect to their
employment on other available jobs. .
We expressly reserve the right to modify the back-pay and reinstate-
ment provisions, if made necessary by a change of conditions since
the hearing or in the future, and to make such supplements thereto
as may hereafter, become necessary in order to define or clarify their
application to a specific set of circumstances not now apparent.
As the Respondent has also violated Section 8 (a) (5) and (1) of
the Act, by refusing to bargain collectively with the Union with
respect to rates of pay, wages, hours of employment, the recall of
laid-off employees, and other conditions of employment, we shall
order the Respondent, upon request, to bargain with the Union as the
exclusive representative of its employees in the appropriate unit con-
cerning these matters. In addition, we shall order the Respondent
to cease and desist from engaging in the unlawful conduct found
herein and from like and related conduct.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, West Boylston
Manufacturing -Company of Alabama, Boylston, Alabama, and its
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Textile Workers Union
of America, C. I. 0., as the exclusive bargaining representative of
all. of, its production and maintenance workers, other than seasonal
village cleanup workers, at its Boylston plant, excluding office and
clerical employees, guards, and supervisory employees as defined in
the Act, with respect to the recall of laid-off employees, and rates of
pay, wages, hours of employment, and other conditions of employment;
13 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, which would not have been incurred but for the Respondent's noncompliance with
this Order and the consequent necessity of his seeking employment elsewhere. Cf. Crossett
Lumber Company, 8 NLRB 440. Monies received for work performed uponFederal, state,
county, municipal, or other work-relief projects shall be considered as earnings. Republic
Steel Corporation v. N. L. R . B., 311 U. S. 7.
WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 815
(b) Taking unilateral action with respect to the recall of laid-off
employees without prior consultation and negotiation with the above-
named union and from engaging in like or related conduct;
(c) In any manner interfering with the efforts of the above-named
union to bargain collectively. with it, as the exclusive representative
of the Respondent's employees in the appropriate unit described
above.
2. Take the following action which the Board finds will effectuate
the policies of the Act :
(a) Upon request bargain collectively with Textile Workers Union
of America , C. I. 0., as the exclusive bargaining representative of
its employees in the appropriate unit described above, with respect
to rates of pay, wages , hours of employment , and other conditions
of employment and embody any understanding reached in a signed
agreement ;
(b) Offer full reinstatement to available jobs to the employees
who were laid off during the reduction of force which culminated in
the plant shut-clown on July 26, 1947, in accordance with the seniority
practices then prevailing, without prejudice to their seniority or other
rights and privileges dismissing , if necessary , persons now occupying
them, as provided in the remedy section of our Decision;
(c) Make, whole the employees so determined to be entitled to re-
instatement, for any loss of pay they may suffer by reason of the Re-
spondent 's refusal , if any, to reinstate them, by payment to each of
them of a sum of money equal to the amount he or she normally would
have earned .as wages during the period from 20 days after the date
of this Order to the date of the offer of employment , less his or her
net earnings during said period, as provided in the remedy section of
our Decision ;
(d) Bargain in good faith with the above -named union regarding
the reinstatement to other available jobs of those laid-off employees
who will not be entitled to reinstatement to, their former jobs because
of insufficient seniority or because the departments in which they for-
merly worked were discontinued or whose operations were so mate-
rially changed that their jobs for all practical purposes are no longer
in existence, as provided in the remedy section of our Decision;
(e) Post at its plant at Boylston, Alabama, copies of the notice at-
tached hereto as an Appendix.14 Copies of such notice, to be furnished
by the Regional Director for the Fifteenth Region, shall, after being
duly signed by the Respondent 's representative , be posted by the Re-
14 In the event this Order is enforced by decree of a United States Court of Appeals, there
shall be inserted in the notice before the words "A DECISION AND ORDER" the words
"A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent immediately upon receipt thereof, and maintained by it for
sixty (60) consecutive days thereafter, in conspicuous places, includ-
ing 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 ;
(f) Notify the Regional Director for the Fifteenth Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTIJER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent discriminated against
the named employees and engaged in interference, restraint, and co-
ercion, except as otherwise found above.
MEMBER REYNOLDS took no part in the. consideration of the above
'Decision and Order.
MEMBER HOUSTON, concurring in part and dissenting in part :
I agree with the majority that "the Respondent's entire course of
dealings with the Union during. all material times was marked by bad
faith and an utter disregard for its bargaining obligations under the
Act," in violation of Section 8 (a) (1). and (5) of the Act. I disagree,
however, with their determination that the Respondent, by abandon-
ing its seniority policy in recalling laid-off employees, did not also
violate Section 8 (a) (3). I .dissent also from their failure to add
back pay to their award of reinstatement to those employees who were
deprived of employment as a direct result of the Respondent's aban-
donment of the seniority system and of its other Luifaii labor practices.
I am convinced from the entire record that the Respondent aban-
doned the seniority system and committed the other violations of the
Act as part and parcel of a deliberately conceived and carefully exe-
cuted plan to destroy the Union. Such a plan is plainly evident in the
repeated assurances from Respondent's representatives that the exist-
ing contract would be renewed or extended, and that the seniority
policy would be adhered to in recalling laid-off employees, conduct
which served to forestall bargaining until after the contract had ex-
pired, and in the Respondent's continuance of the same dilatory tac-
tics thereafter, so as to further forestall bargaining while it recalled
employees unilaterally in disregard of the seniority provisions of the
expired contract, and in disregard of the Union's opposition, until the
plant was reopened and remanned. The inevitable results of this
program of the Respondent were (1) to discredit the Union by leading
the members to believe that the Union's assurances were unreliable
and that the Union was impotent as a bargaining representative, and
WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 817
(2) to set off the recalled employees against those who would have been
recalled if the seniority plan advocated by the Union had been fol-
lowed. Having thus divided the union membership into camps of ap-
parently opposing interests, the Respondent refused to bargain with
the Union on the wholly unjustified ground that it no longer repre-
sented a majority of the Respondent's employees. As the coup de
grace, the Respondent then filed a petition seeking to have the Board
determine who was the bargaining representative of its employees.
In these circumstances, it is unrealistic to hold, as apparently do my
colleagues, (1) that the Respondent's disregard of the seniority policy
is consistent with the view that it was prompted by a desire to have a
free hand in selecting personnel for the reduced number of jobs avail-
able when it resumed operations, and (2) that the record does not
clearly establish that the employees who were not selected for recall
were discriminated against on the basis of their membership or lead-
ership in the Union.
Indeed, the record militates against any finding that the Respondent
was prompted by a mere desire to obtain the best qualified personnel.
It reveals that at least five of the Respondent's supervisors were telling
various employees that when the plant reopened, there would be no
seniority, no contract, and no union,15 during the very period when the
Respondent's representatives were assuring the Union that they would
negotiate a new contract or sign an interim agreement extending the
existing contract; that laid-off employees would be recalled according
to "seniority; that the terms of the expiring contract, which included a
seniority provision, would be observed when operations after the shut-
down were resumed; and that the Union had nothing to worry about
in any of these respects. The record also shows that it was through
such supervisors that the Respondent, at times, communicated labor
policies to its employees."
Similarly, notwithstanding the Respondent's assurances to the
Union that no further eviction notices would be served upon occupants
of company-owned houses, the Respondent continued to serve such
notices. In fact, in November 1947, the Respondent served 22 such
notices although, at that time, it appears that 71 of the approximately
250 houses in the mill village were vacant.
is See the statements of Overseers V. E. Fisher and C . P. Tisdale, Master Mechanic
Norman , and Assistant Overseers Fred Stickland and Beard , quoted by the Trial Examiner
in the Intermediate Report.
,6 Thus, Treasurer Cook' s letter of February 5, 1948 , to Superintendent Farrell, to the
effect that the Respondent did not believe the Union represented a majority of the em-
ployees and that the Respondent would no longer recognize it, also stated that this posi-
tion was to be communicated to the employees. . This letter was called to the attention
of employee John Porter by Overseer Tisdale.
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By this conduct, the Respondent was plainly deluding the Union.
That it was doing so is underscored by the accuracy of the predictions
of its supervisors as to the outcome of the dealings between the Union
and.the Respondent. The only plausible conclusion, therefore, is that,
in selecting its personnel by the so-called merit rating system instead
of the promised seniority system, the Respondent was motivated by
its intention to eliminate the Union.
As to the second point relied upon by the majority, it is not neces-
sary, to establish a violation of Section 8 (a) (3), to show that an
employer's discrimination was designed to reach particular employees.
Section 8 (a) (3) provides that "It shall be an unfair labor practice
for an employer . . . by discrimination in regard to hire or tenure
of employment or any term or condition of employment to encourage
or discourage membership in any labor organization . . ." As the
Respondent's motive in switching from a seniority to a merit-rating
system was designed to discourage membership in the Union by strik-
ing at the very heart of the Union, not at some individual members, I
need not concern myself with the mathematical consequences of the
Respondent's rehiring policy on union and nonunion members or union
leaders. The tenure of employment of numerous employees was
clearly affected as a result of the Respondent's illegal conduct, and I
would therefore find, as did the Trial Examiner, that the conduct was
discriminatory within the meaning of Section 8 (a) (3).17
In any event, whether the Respondent's conduct be deemed violative
of Section 8 (a) (3) as well as 8 (a ) (1) and (5) or, as found by the
majority, only of Section 8 (a) (1) and (5), I would direct back pay,
as well as reinstatement, for the employees whose employment was
terminated as a result of the Respondent's illegal unilateral adoption
of the merit rating system. Section 10 (c) of the Act gives the Board
broad powers to remedy unfair labor practices. The award of back
pay. is not limited by the Act to those cases in which the Board has
found that Section 8 (a) (3) has been violated. As stated by the
Supreme Court, ".. . in the nature of things Congress could not
catalogue all the devices and stratagems for circumventing the policies
of the Act. . . . The remedy of back pay is entrusted to the Board's
discretion." 18 The Supreme Court has also stated that "The relief
which the statute empowers the Board to grant is to be adapted to the
situation which calls for redress." 19
The Respondent's wanton disregard for its obligations under the
Act deprived some of its employees of their employment. Whether or
17 In this connection see American Rolling Mill Company, 43 NLRB 1020.
18 Phelps Dodge Corporation v. N. L. R. B., 313 U. S. 177, 194, 198.
10 N. L. R. B. v. Mackay Radio £ Telegraph Co., 304 U. S. 333.
WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 819
not the Respondent's unfair labor practices be found violative of
Section 8 (a) (3) as well as of Section 8 (a) (1) and (5), I am con-
vinced that it would best effectuate the policy of the Act not only to
reinstate these employees but also to direct the Respondent to make
them whole for the losses they suffered as a direct consequence of the
Respondent's unfair labor practices.
APPENDIX.
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, as amended, we hereby notify our employees that :
WE WILL bargain collectively, upon request, with TEXTILE
WORKERS UNION OF AMERICA, C. I. 0., as the exclusive represent-
ative of all our employees in the bargaining unit described be-
low, with respect to rates of pay, wages, hours of employment,
and other conditions of employment, and embody any understand-
ing reached in a signed agreement. The bargaining unit is:
All production and maintenance workers, other than sea-
sonal village clean-up workers, at our Boylston plant, ex-
eluding office and clerical employees, guards, and supervisory
employees as defined in the Act.
WE WILL OFFER full reinstatement to available jobs to the em-
ployees who were laid off during the reduction in force which cul-
minated in the plant shut-down on July 26, 1947, in accordance
with the seniority practices then prevailing, without prejudice
to any seniority or other rights and privileges previously enjoyed,
dismissing, if necessary, persons now occupying them, as provided
in the remedy section of the Board's Decision.
WE WILL bargain in good faith with the above-named Union re-
garding the reinstatement to other available jobs of those laid-
off employees who will not be entitled to reinstatement in their
former jobs because of insufficient seniority or because the de-
partments in which they formerly worked were discontinued or
whose operations were so materially changed that their jobs for
all practical purposes are no longer in existence, as provided
in the remedy section of the Board's Decision.
WE WILL NOT take unilateral action with respect to the recall
of laid-off employees without prior consultation and negotiation
with the above-named union, or engage in like or related conduct.
WE WILL NOT in any manner interfere with the efforts of the
877359-50-vol. 87-53
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above-named union, as the exclusive representative of our em-
ployees in the unit described above, to bargain collectively with us.
WEST BOYLSTON MANUFACTURING COMPANY
OF ALABAMA,
Employer.
By -----------------------------------------
Dated --------------------
(Representative) (Title)
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Messrs. Andrew P. Carter, Charles A. Kyle, and Gerold Sindler, of New Orleans,
La., on behalf of the General Counsel.
Messrs. Thomas S. Adair, of Montgomery, Ala., Edwin F. Ryan, Jr., of Spar-
tanburg, S. C., and H. D. List, of Birmingham, Ala., on behalf of Textile Workers
Union of America, C. I. O.
Mr. Frank A. Constangy and Mildred McClelland of Atlanta, Ga., and Mr. T. B.
Hill, of Montgomery, Ala., on behalf of Respondent.
STATEMENT OF THE CASE
Upon a charge filed December 29, 1947, by Textile Workers Union of America,
C. I. O.,' the General Counsel 2 of the National Labor Relations Board,' by the
Regional Director for the Fifteenth Region, issued the complaint herein, dated
July 13, 1948, against West Boylston Manufacturing Company of Alabama,`
alleging that it had engaged in unfair labor practices affecting commerce within
the meaning of Section 8 (a) (1), 8 (a) (3), 8 (a) (5) and Section 2 (9) of the
National Labor Relations Act.' Copies of the complaint and notice of hearing
thereon were duly served upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint alleged, in substance :
(1) Respondent, by G. Arthur Cook, Foreman Beard, Overseer Tisdale, Assistant
Overseer Strickland, and Overseer Fisher, from and after July 1, 1947, made
statements discouraging union membership and activity ; interrogated employ-
ees regarding their union membership and union business ; and suggested with-
drawal from the Union for self-benefit ; (2) Respondent, on November 24, 1947,
discharged one Willie Missildine and on or about July 17, 1947, laid off 144 em-
ployees, named in the charge and named hereinafter,' and has since refused to
reinstate them because of their union membership and activities; (3) Respond-
ent, from and after June 28, 1947, has refused to bargain collectively with the
Union as the exclusive representative of its production and maintenance employ-
ees ; and (4) Respondent, by these acts, has engaged in unfair labor practices
within the meaning of Section 8 (a) (1), 8 (a) (3), and 8 (a) (5) of the Act.
i Hereinafter referred to hs the Union.
This term is used hereinafter to designate both the General Counsel and the attorney
representing him at the hearing.
3 Hereinafter referred to as the Board.
4 Hereinafter referred to as either the Company or the Respondent.
' 49 Stat. 449, as amended by the Labor Management Relations Act, 1947, 61 Stat. 136,
hereinafter referred to as the Act. Certain of the earlier events in the course of action
hereinafter related occurred prior to the effective date of the amendment. So far as this
proceeding is concerned , the applicable sections of the statute were not changed.
0 Certain of them are named hereinafter in the body of this report. The entire list is
attached hereto as Appendix A.
WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 821
On August 4, 1948, Respondent filed an answer admitting that it discharged
Willie Missildine and that it laid off some but not all of the persons named in
the complaint, averring that this discharge and these lay-offs were for causes
connected with the operation of Respondent's plant and arising from changes in
its ownership and in its product and production processes. It denied the commis-
sion of any of the unfair labor practices alleged.
Pursuant to notice, a hearing was held at Montgomery, Alabama, from August
9 through August 18, 1948, before Merritt A. Vickery, the undersigned Trial Ex-
aminer, duly designated by the Chief Trial Examiner. The General Counsel, the
Respondent, and the Union were represented .by counsel and participated in the
hearing. Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence was afforded all parties.
During the presentation of his case and before he rested, the General Counsel
stated that, through inadvertence, the name of one Jesse C. Bradley had been
omitted from the list of persons who "the complaint alleged had been laid off in
violation of Section 8 (a) 3 of the Act. He moved that the complaint be amended
to include his name. Bradley was present at the hearing and had testified as a,
witness. Over objection by Respondent, the motion was granted.
At the end of the General Counsel's case and after he had rested, Respondent
moved for dismissal (a) of the allegations of violation of Section 8 (a) 1 of the
Act by Cook, Beard, Tisdale, Strickland, and Fisher (paragraph 4 of the com-
plaint) and (b) for dismissal of the complaint in its entirety. The motions were
denied.
At the end of the hearing, Respondent renewed these motions. Ruling on them
was reserved. They will be disposed of in the course of this report.
Upon the entire record and from observation of the witnesses, the Trial Exam-
iner makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
West Boylston Manufacturing Company of Alabama is uan Alabama corporation
with its office and principal place of business located in Boylston, Alabama,
about 4 or 5 miles from Montgomery. It is engaged in the manufacture of knit-
ting and weaving yarns. Prior to July 26, 1947, its business consisted almost
entirely of the manufacture of tire cord and tire cord fabric, principally for the
General Tire & Rubber Company.
In the course and conduct of its business, during the year ending January 12,
1948, it purchased raw materials, consisting principally of raw cotton, valued in
excess of $1,500,000, approximately 60 percent of which was purchased outside
the State of Alabama and shipped in interstate commerce to the Boylston plant.
During the same period, the Respondent manufactured and sold finished products,
consisting principally of knitting and weaving yarns and tire cord fabric, valued
in excess of $2,000,000, approximately 95 percent of which was sold and shipped
to customers outside the State of Alabama.
Respondent admits and it is found that the Respondent is engaged in commerce
within the meaning of the Act.
If. THE ORGANIZATION INVOLVED
Textile Workers Union of America, affiliated with the Congress of Industrial
Organizations, is a labor organization within the meaning of Section 2 (5) of
the Act. It admits to membership employees of Respondent.
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT
a. The background before 1947
The locale is Respondent's mill and adjoining village, together occupying 140
acres in Boylston, Alabama, about 4 or 5 miles from Montgomery. Or, to speak
more accurately, Respondent's mill and its village constitute Boylston. Respond-
ent owns the mill, the houses, the store, the post office, even the church: In
the village live Respondent's officers and a large number of its employees.
The dramatis personae include, on behalf of Respondent, G. Arthur Cook, man-
aging agent and treasurer ; his secretary, Miss Gertrude Ward ; Superintendent
J. E. Farrell; Assistant Superintendent and Personnel Director L. M. Gross;
Labor Counsel Frank A. Constangy ; and a number of overseers and assistant
overseers, of whom it is necessary to mention only Strickland, Fisher, Tisdale,
Beard, and Norman. On behalf of the Union, the principal actors were State
Director Edmund F. Ryan, Jr.; his assistants , Houston Troupe and Lloyd Davis ;
and Louis Evans, the president of the local union.
Such others as it becomes necessary to name will be designated as to their
company or union connection as they appear.
Of those above named, all lived in Boylston and worked at the mill except the
three State officials of the Union who were attached to its office in Birmingham,
about 100 miles away, and Constangy, whose office was at Atlanta, some 200
miles distant.
Prior to March 1946, the Company was owned by 133 individual stockholders.
Almost at the outset of World War II, as a result of War Production Board
directives, the Company devoted its entire productive capacity to the manu-
facture of tire cord and tire cord fabrics, operating on a 3-shift basis, with
a maximum employment of over 1,000 persons. After the war, it continued to
manufacture tire cord and fabric, under a contract by which the General Tire
& Rubber Company purchased virtually the entire output. Respondent's maxi-
mum number of employees when operating under this arrangement in 1947 was
about 750 people.
In February 1945, the Union was certified as the bargaining agent of Re-
spondent's employees and in May of that year a first collective bargaining agree-
ment was consummated, expiring May 14, 1946 8
From the outset there was more or less disharmony between the Company
and the Union. In 1945 and 1946 a number of "wildcat" strikes occurred, one
or more of which was participated in by the then president of the local Union,
Pelham' For this, sometime after May 1, 1946, he was disciplined by the Union
and replaced by Evans.10
In March 1946, an agreement was made whereby the United Elastic Cor-
poration purchased all the capital stock held by the individual stockholders of
Respondent. Prior to the public announcement of the purchase, Cook called in
Ryan and the local union committee and informed them of it. He advised them
as to its ultimate effect in terms of change of product, method, and machinery, as
contemplated by the new owner. He told them that it was planned to shift the
mill in due time from the manufacture of tire cord and tire cord fabric to that of
I Its use as a place of worship has been discontinued. At some points in the testimony
the building is referred to as the church ; more frequently as the recreation hall.
'This contract was not introduced in evidence. The testimony indicates that the sub-
sequent agreement differed from it but does not show the points of difference.
9 At various points in the record Pelham is spelled Pellum or Pellums.
20 Pelham left Respondent's employ prior to any of the acts giving rise to this proceeding.
WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 823
knitting and weaving yarns for the purchaser's own use. On March 21, 1946,
the account of the impending sale was published in the Montgomery papers and
from then, if not before, was known to the rank and file of Respondent's em-
ployees."
Under date of April 8, 1946, Cook informed the Union of Respondent's intent
to terminate the then existing collective bargaining agreement on its expiration
in May. With his notice he stated a willingness to enter into a new agreement
if certain but unspecified changes could be made. It should be noticed that
this notice refers, as the basis for the demanded changes, to the fact that the 1945
contract was written under wartime conditions which no longer prevail, and
that it does not suggest as a basis for change either the change in ownership
then impending, or the prospective changes in product, method, or machinery.
April 23, 1946, the first meeting was held for the purpose of negotiating a new
collective bargaining agreement. The course of negotiations continued over
a considerable period. On May 8, 1946, it was apparent they would not be com-
pleted before the old agreement expired and an interim agreement was excuted to
extend it to June 14.
At a meeting held about May 1 the negotiations were interrupted by a quarrel
between Cook and Pelham over the latter's act of writing directly to the
president of United Elastic Corporation. Cook insisted that Pelham had sought
to go over his head and to get him discharged. Pelham read the president's
reply. It was of a generally friendly nature and stated that United Elastic
Corporation would take over the mill about May 1, 1946.
In fact, the purchase was consummated on May 26, 1946, while the collective
bargaining negotiations were still going on.
The changes in product and production processes started before the completion
of the negotiations in 1946 and almost immediately led to a short, partial lay-off,
commencing about June 1, 1946. This caused some "rolling and bumping" among
the employees in attempts to secure their respective seniority rights and led
to further discussions regarding the seniority provisions to be included in the
new agreement's
During these negotiations, Cook and Farrell explained again to the Union's
representatives that certain technological changes were inevitable under the
plans of the new owner ; that these would cause the abolition of certain depart-
ments and that of some jobs in those which remained ; would result in changes
in some of the jobs, in alteration of work loads, and in operation with a greatly
reduced number of employees.
The new collective bargaining agreement was executed on July 14, 1946. At
the Union's request, its term was extended slightly beyond a year and its ex-
piration date made August 1, 194713
Under this agreement, due to its provision for a check-off, the numerical
strength and the completely detailed personnel of the membership of the Union
were known to Respondent. At the Union's high point it had enrolled over 550
11 The account was based on an interview with Cook . He testified that it was substan-
tially correct.
12 There appears some conflict of testimony regarding the June 1946 lay-off. It is un-
necessary to decide this, since the matter seems immaterial to the issues . There is no con-
flict in regard to the fact of the discussions referred to in the text. The evidence does not
indicate their exact tenor or what changes, if any, resulted from them.
13 Ryan and Cook agree that the extension of the term was because of a union request.
They disagree as to the reason given. Ryan said it was to make this agreement coincide
as to date with the Union 's agreements with United Elastic Corporation ; Cook, that it
was part of a union plan to place the entire southern textile industry on an August 1
basis. The reason seems immaterial to the issues and, hence , unnecessary to decide.
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Respondent's employees, almost 80 percent of the production and maintenance
personnel.
The changes in product and processes proceeded, somewhat slowly at first.
The resulting changes in work loads led to a long series of grievances, arbitra-
tions, walk-outs, and to calls on the Conciliation Service 34 for aid.
About August 1, 1946, Respondent sold its tire cord machinery to the General
Tire & Rubber Company which leased it back to Respondent to operate in manu-
facturing tire cord fabric for it. This lease, by its terms, was to run until
December 31, 1947, but contained a provision that it might be canceled on notice.
There is nothing in the evidence to suggest that any phase of this arrangement
was called to the attention of, or was known by, the Union or any employee.
October 1, 1946, Constangy became Respondent's representative in its labor
relations . Cook testified that he was given "full power and authority" to handle
negotiations and to conclude agreements on Respondent's behalf, in its dealings
with the Union.15
Constangy represented a number of other mills in the cotton textile industry,
many of which had agreements with the Union. This brought Constangy and
Ryan into frequent contact on labor problems. A pattern of dealing thus became
established between them whereby they would meet from time to time, informally
discuss problems, grievances, contract provisions, and similar matters and
arrive at tentative solutions which they then submitted to their respective
principals, when and as necessary.
So much for the background. Before considering the events of 1947, the
collective bargaining agreement of June 1946 should be examined, since under
it many of the rights herein involved must arise, if they are to be found to exist.
b. The collective bargaining agreement of 1946-19J7
Only those sections will be set forth which have a direct bearing on the issues.
For the sake of brevity, they will be paraphrased rather than fully quoted.
Section 1. The company agrees to recognize and deal with the Union, as
exclusive bargaining agent, in all matters pertaining to conditions of
employment.
Section 2. Management of the mill; direction of working forces ; right
to decrease operations ; right to remove or install machinery; right to in-
crease or change equipment ; right to introduce new methods ; right to relieve
from duty for lack of work ; right to employ, lay-off, reemploy, transfer,
demote or discharge for proper cause, are vested in the Company.
Section 3. Grievances arising from operation or interpretation of this
agreement, or concerning conditions of employment, if not settled by depart-
ment or shop procedures, are to be arbitrated.
Section 4. Findings and decisions of a majority of the arbitrators are
to be binding and conclusive.
11 Wherever , throughout the course of this report , the Conciliation Service is mentioned,
the reference is to the agency now entitled the Federal Mediation and Conciliation Service.
Ss In spite of Cook 's statement of Constangy 's powers, he stated , under questioning by
Constangy himself, that although the latter had recommended extension of the collective
bargaining agreement which was to expire August 1, 1947 , he (Cook ) decided against it.
Further, it is apparent from the evidence as a whole that certain matters directly bearing
upon Respondent ' s industrial relations were decided by Cook , independently of Constangy
and without his knowledge . Also, it similarly appears that some of Constangy 's decisions
were nullified in practice by refusals-by Farrell , in particular-to follow them.
WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 825
Section 7. Seniority . . .
(b) The principles of seniority herein established shall be applied to lay-
offs and recalls. The term "seniority" means the relative status of employees
in the several departments respectively, in respect to length of service with
the Company. It is understood and agreed that'no employee shall be entitled
by seniority to be employed or retained on any job for which he is not properly
qualified.
(c) Seniority shall be reckoned and applied to departments.
(d) Seniority within departments, in lay-offs and recalls, shall prevail,
provided the employee retained or recalled is qualified to fill the position.
Members of the General Shop Committee shall head the seniority roster
for the purpose of lay-offs and recalls.
New jobs or vacancies in any department shall be offered to those employees
who have been laid off before new employees are hired for such positions,
provided the employee retained or recalled is qualified to fill the position.
(k) The Company will post and maintain in each department a seniority
roster for that department. Any appeals from it shall be made through the
regular grievance procedure within 30 days after posting. In default of such
appeal, the roster shall be binding on all parties.
It is apparent from the testimony that while Respondent and the Union agreed
upon the words of a contract, they never agreed upon what they meant. Two
of their differences of interpretation have a bearing upon this proceeding.
Did the agreement provide for only departmental seniority, or did it give the
employees of a department which should be terminated a preferential right to
employment in some other department which had jobs they were qualified to fill?
Respondent took the view that the wording of Section 7 (b), (c), the first para-
graph of (d), and (k) meant only seniority within a department. The Union
urged that the wording of the third paragraph of Section 7 (d) gave employees
in discontinued departments a preferential right to jobs in other departments
before new employees could be hired.
What is the proper construction of the phrases, "properly qualified," "provided
he is qualified," and "if qualified"? The Union contended that these meant only
that the employee need be able to meet the minimum requirements of a particular
job standard. If he could do that, the fact that another could do more or better
work in that job was immaterial, and the employee with greater seniority should
prevail. Respondent urged that the phrases were to be interpreted to provide
for a comparative basis and that no employee could be regarded as qualified if
another available, even though he had less seniority, could do the work better,
or produce more.
So far as this proceeding is concerned, the evidence shows no attempt was
ever made to obtain a resolution of either of these disputes under Section 3 of
the agreement.
c. The events of 1947-194$18
May -, 1947. Sometime during the month, Ryan suggested to Constangy
that since "the real job of changing this plant over" was still to be done it would
16 There is little conflict of evidence regarding these events. In the main , the statements
of the. text are based on Ryan's testimony. In evaluating his evidence, it should be
.remembered : ( a) throughout his time on the stand, Constangy and Gross were present,
the former as counsel for Respondent ; ( b) Ryan testified with knowledge that, he would
face cross -examination by Constangy and he was , in fact , so cross-examined ; ( c) he was
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be in the interest of harmony to let the existing contract automatically be re-
newed for another year. Constangy agreed and said he would recommend it
to Cook.
June 1, 1947. The third, shift was discontinued. Apparently, at the time
they were then notified of a lay-off for lack of work and were notified sometime
later that their jobs were discontinued and their employment terminated. What-
ever the form of the notice, the action was followed by considerable "rolling and
bumping" by which third shift members with greater seniority displaced mem-
bers of the other shifts who had less. By the discontinuance of the third shift,
Respondent's production personnel was reduced from about 730 to about 640
persons.
June 12, 1947. Respondent was notified that upon completion of the orders
then in process-then estimated to occur about August 1-the General Tire &
Rubber Company would terminate the contract for the manufacture of tire cord
and fabric.
June 28, 1947. Respondent notified the Union of its intention to terminate
the collective bargaining agreement on its expiration. Cook's letter referred
to the approaching end of tire cord manufacture and to the prospective removal
of machinery. It did not allege any dereliction on the part of the Union. The
letter concluded:
As soon as we have been able to ascertain exactly what our status will
be under the changeover, we will be glad to discuss with you such changes
as will be necessary in the new contract.
July 1, 1947. The Union acknowledged receipt of this notice. Its letter re-
quested, "Will you kindly let us know within the next few days the date, time,
and place we can start negotiations for a new contract?" This letter was never
answered.
July 6, 1947. Ryan attempted to call Cook to inquire the status of affairs.
Miss Ward informed him that all questions pertaining to the agreement must
be taken up with Constangy. Ryan called Constangy who made an appointment
to discuss the matter on July 12, at which time they had already planned to
meet in regard to a pending grievance.
July 11, 1947. Respondent posted a notice that when the stock ran out-
estimated to occur July 26-the mill would close indefinitely. It stated
Respondent was doing its utmost to permit partial reopening at the earliest
possible date.
July 12, 1917. Constangy failed to keep his appointment with Ryan. His
associate, Legare Davis, who came in his stead, refused to go into the matter of
a new contract and limited the discussion to the grievance which had been the
original reason for calling the meeting. Davis said that he had neither the
requisite knowledge nor authority and that the discussion would have to be
postponed until Constangy could be present.
followed on the stand, after some days , by Gross , Farrell, and Cook , all of whom had had
an opportunity to study in detail the transcript of his testimony, Respondent having been
furnished with daily copy of the record ; ( d) Ryan's testimony was not weakened on cross-
examination ; ( e) in large part , his testimony was corroborated by written evidence and
on many points by either Farrell or Cook ; ( f) his testimony , in material points, was not
contradicted by Gross, Cook, or Farrell ; and (g) Constangy did not take the stand. Fur-
ther, Ryan repeatedly referred to his file, made at the time , to refresh his recollection. He
appeared scrupulous not to overstate matters . As stated , there is no major conflict regard-
ing what happened, what was said, or when it happened or was said . In the minor con-
flicts, as to matters to which he was a party , Ryan is credited.
WEST BOYLSTON MANUFACTURING COMPANY 827'
July 15, 1947. Respondent posted notices reading:
With the run-out of the stock in the various departments of the mill, the'
second shift will be discontinued, and all employees on this shift will be
given a separation notice, "Job discontinued ; Employment terminated."
Following the sending of these notices, no "rolling and bumping" of .first shift
employees occurred. There is evidence that in certain instances advice was
given by members of Respondent's management to postpone such action until
the mill should reopen. In most cases it doubtless was due to the knowledge
that the entire mill was going to close within a few days.
A few days after these second shift notices were sent, notices were given the.
members of the first shift. These read : "Laid off ; no work available." The,
record does not state the exact date of these notices.
July 15, 1947. Constangy's associate, Davis, assured Ryan that in a few days,
discussions of the terms of a new contract would be commenced.
July 18, 1947. Constangy told Ryan that before August 1 the Company would
meet with the Union and either renew the existing contract or sign an interim
agreement extending it. Constangy said the Union had nothing to worry about;,
the Company would recognize seniority as before ; and the provisions of the
contract would prevail.
July 21, 1947. Miss Ward wrote Ryan that Cook would be available for a
meeting in the. week beginning July 28. In fact, he did not become available and
the meeting was not held.
July 24, 1947. Constangy wrote Ryan in respect to the turmoil raised by the
termination and lay-off notices. His letter said,
Apparently there is one phase of the shift over in the West Boylston
operations that is not clear to you. Every indication is that when West
Boylston reopens after the change over in production they will operate only
on one shift basis. For that reason in order that the people are not lulled
into a false sense of hope it was determined by the company to give people
on the second and third shifts termination notices and people on the first
shift lay-off notices. We, of course, recognize that there are people on
the second and third shifts with greater seniority who will be able to bid.
out or bump some of the people who are presently on the first shift 17
July 26, 1947. The mill closed.
July 30, 1947. In answer to a request for a formal extension of the Union
contract, Constangy said that he did not have authority to agree to it but that he
would recommend it. Also, he said that due to Cook's absence it might be
necessary to go a few days without an agreement.
July 31, 1947. Constangy told Ryan that he had talked to Cook by long distance
telephone in regard to an extension of the contract and that Cook appeared to
regard it favorably.
August 1, 1947. The expiration date stated in the contract.
August 1947. Cook told Farrell that when the mill reopened , he should use
the Company 's "merit-rating system" as the basis for selecting the employees
to be recalled . Farrell did not specify the date of Cook's instructions more closely
than "the first part of August." There is no evidence to indicate this decision
was communicated to or known by the Union or any employee.
"As will be pointed out in the text hereinafter , the use of the future tense in regard,
to the exercise of seniority rights should be noted.
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
August 7, 1947. Constangy informed Ryan that Cook refused to extend or
renew the agreement. Constangy stated that Cook had informed him that it
would be about November 1 before the mill could open ; that, meanwhile,
the Company would make no question about people living in company houses
in the mill village ; that those who were without work could postpone their rent
payments until after the mill started up and they were again employed; that
there should be no worry about evictions; that interim employment elsewhere
would not injure an employee's opportunities for reinstatement ; that workers
would be called back in the order of seniority ; that the meetings with the Shop
Committee would continue as before ; and that Cook was sending by him a.
message reiterating his statement that despite the shut-down and the expiration
of the agreement, the Company would negotiate and work out an agreement
with the Union before the mill reopened.
Ryan asked Constangy for a confirmatory letter which he would be able to
show and read at a union meeting. Constangy agreed to send it.
August 10, 1947. Farrell refused to meet with the Shop Committee. Constangy
said this was a misunderstanding and that he would straighten it out. Farrell,
however, persisted in his refusal.
August 12, 1947. Constangy wrote Ryan, in fulfillment of his promise of
August 7:
In accordance with our several conversations . . . be advised that our
estimates . . . are that it will be approximately November 1st before we will
be able to reopen the plant for the new type of operation. As I have indi-
cated to you, the Company is prepared to advise you sufficiently far in
advance of the time that we are certain that we will begin operations of our
intention of reopening in order that at that time we may sit down together,
confer 'and negotiate on the terms and conditions of the new agreement.
You, of course, understand that as of the time the Company reopens, it
will only be on a one-shift basis and that will necessitate certain substantial
variations from the present agreement.
August 1947. A few days after the meeting of August 7-the exact date not
being specified-five employees, none of whom were then employed and all of
whom were union members, were served with eviction notices. Ryan called
Constangy. He expressed surprise and said he would take it up with Respondent.
A day or two later he reported that the Company had served these five because
they were not desirable residents of the village ; that since these five cases had
become a court matter between the attorney for the tenants and the Company's
general counsel he could do nothing about them ; but that no more eviction notices
would be issued.
August 20, 1947. Farrell again refused to meet the Shop Committee. He said
that since the contract had expired there was nothing to discuss. In fact, there
were two or three grievances pending and not yet acted upon. The evidence does
not disclose the nature of these grievances.
August 1947. In the latter part of August and the first few days of September
a number of eviction notices were served.
September 1947. Early in September, Ryan requested Constangy to arrange a
meeting to be held in Boylston, to be attended on the part of the Company by
Constangy, Cook, Farrell, and Gross and on the part of the Union by Ryan and,
the Shop Committee. Constangy, at first, agreed to this but later said that it
would be impossible and that if they wanted to meet him they would have to
come to his Atlanta office.
WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 829
September 15, 1947. According to Cook, by this date Respondent knew the
number of employees that would be needed for the reopening operations. Also,
by this date it had completed the merit-rating of the laid-off employees.18
September 30, 1947. The Union learned that Respondent had recalled certain
employees and informed them that the mill would reopen October 6. Ryan called
Constangy who said that the reopening was a surprise to him. He told Ryan
to prepare a contract proposal ; to send it to him ; and that they would imme-
diately commence negotiations.
October 6, 1947. The mill reopened.
October 10, 1947. Ryan mailed Cook and Constangy duplicate proposals of a
new collective bargaining agreement.
October 11, 1947. Constangy wrote Ryan,
I am frank to say that I am somewhat amazed at what apparently is
a complete disregard of our understandings.
I agreed with Mrs. Stewart (of Conciliation Service) that if you submitted
to me, for consideration, a recognition agreement that I would be glad to
talk to you about it on Tuesday, with possibly Louis Evans being present.
I have made it clear to you that we would not be in a position to negotiate
a complete contract until we have had some experience in operation under
the new system and until the plant is somewhat manned.
Your letter . . . and the attachment does not comply with our under-
standing . . . I definitely will not be in a position to discuss your pro-
posals, or anything like them, on Tuesday.
October 13, 1947. Ryan answered Constangy, reminding him of the promises
made by Cook, by Legare Davis, and by himself that the Company would notify
the Union sufficiently long before the mill reopened to permit negotiation of a
new agreement. Ryan quoted Commissioner Stewart's letter to him which had
been the immediate cause of his contract proposal. She had written that she
had seen Constangy and that
He states he is ready to enter contract negotiations with you at any
time and suggests that when you are ready to begin negotiations you may
submit to him proposed contract language (your contract proposal) for a
new agreement.
May I suggest that you contact Mr. Constangy when you have prepared
your proposed contract, with a suggestion as to a date for a first meeting.
October 16, 1947. Ryan wrote Cook requesting a conference covering the recall
of laid-off employees and questions of seniority.
October 21, 1947. Gross wrote the nonrecalled employees:
The purpose of this letter is, therefore, to let you know that your status
must be changed, effective immediately, from that of lay-off to that of
termination.
October 22 , 1947. Cook informed Ryan it would be impossible for him to
meet before November 1. He suggested meeting at Boylston on November 6.
November 6 , 1947. Meeting at Boylston . ( Discussed hereinafter.)
November 7 , 1947. The Union commenced compiling a list of employees not
recalled who claimed a right to reemployment . Union representatives inter-
viewed such employees and noted the basis of their claims.
"There is no evidence that either of these facts was made known to the Union or to
any employee.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Also, on this date Gross wrote Ryan:
The only departments that are operating and will operate in. the fore-
seeable future on even a one shift basis are as follows : Carding, Spinning,
Twisting and Winding, Maintenance, Yard. These departments are oper-
ating on a one shift and very curtailed basis. No further expansion of
these departments is contemplated at this time.
November 13, 1947. Constangy forwarded to Ryan two proposals: (a) of
procedure for reviewing the cases to be presented by the Union's list of employees
not recalled ; (b) of a seniority provision to be included in a new contract in
place of the one submitted by Ryan.
November 1947. The Company caused eviction notices to be served on 22
employees. The Union made a survey and found that 71 of the. approximate 250
houses of the village were vacant at the time. On November 26, Ryan wrote
Cook requesting him to withhold action on these evictions. Cook denied Ryan's
request.39
November 29, 1947. Ryan acknowledged receipt of Constangy's two proposals
of November 13, stating he had not had time to examine them.
December 1, 1947. The Union gave Farrell a partial list of nonrecalled em-
ployees. He accepted it with the statements that he could do nothing until the
list was completed and that he must have time.
December 8, 1947. The Union gave Farrell the names completing the list.
Again, Farrell accepted the list, again agreed to look it over, and again said he
must have time.20
December 9, 1947. Union representatives went to Constangy's Atlanta office
to complain of Farrell's attitude and of the evictions. Constangy promised to
have Farrell act speedily on the list?1 .
December 16, 1947. Ryan again complained to Constangy about Farrell's in-
action. Constangy again agreed to urge him to action.
December 17, 1947. Lloyd Davis, following Constangy's suggestion, went back
to Farrell in regard to the list. Farrell said he could do nothing until after the
Christmas holidays.
December 29, 1947. The Union filed the charge in this proceeding.
January 7, 1948. Lloyd Davis, in default of word from Farrell, tried to tele-
phone him, regarding the list, but was denied opportunity.
January 14, 1948. Troupe tried to call Cook in regard to Farrell's inaction.
Miss Ward, with knowledge of the subject of the call, refused to connect him
with Cook and told him to take the matter up with Constangy.
January 19,1948. Lloyd Davis tried to call Cook in regard to Farrell's inaction.
Miss Ward, with knowledge of the subject of the call, refused to connect him
with Cook and told him to take the matter up with Constangy.
Also, on this date the Company recalled 27 more employees. And in the next
3 days it took on 19 more.
January 26, 1948. A letter signed by Cook was given each of the recalled em-
ployees. It is discussed hereinafter.
Also, on this date and the 3 days following, 53 more employees were recalled.
11 Eventually, the Alabama Supreme Court held against the Company on these evictions.
The record does not show the ground of the decision.
20 It should be noted that Farrell voiced no objection to the number of names or to the
nonacceptance of Constangy's proposed procedure.
21 It should be noted that Constangy voiced no objection to the number of names or to
the nonacceptance of his proposed procedure.
WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 831
February 3, 1948. Constangy refused to deal with the Union, on the ground
of doubt that it represented a majority.
February 5, 1948. Cook sent the following note :
Mr. J. E. FARRELL,
Superintendent..
The following word is to be given out to our employees. The company has
come to the conclusion that the union does not represent the majority of its
employees and the company will not deal with the union until it is convinced
that the union represents the employees by an election.
(Signed) G. A. COOK,
Treasurer.
This note was passed on to at least some of the overseers and by them shown to
some of the employees.
February 1.1, 1948. Constangy wrote Troupe informing him of the Company's
views that the Union no longer represented the employees , that for several months
it had been seeking to have the employees deprived of their jobs in order that they
might be replaced by others , that because of this the Company was petitioning for-
an election and that because of this the Company could not meet or bargain with
the Union.
Also, on this date the Company filed with the Board a petition for an election.
March 5, 1948. Each of the nonrecalled employees whose name was on the
list compiled by the Union applied to Respondent for reinstatement or for em-
ployment.
March 12 , 1948 . Respondent wrote in answer to the applications of the non-
recalled employees :
This is to acknowledge your mimeographed letter of March 5, 1948.
Please be advised that we do not, at this time , have a vacancy which we
feel that you are competent to fill. It is not our practice to accept or retain
continuing requests for employment.
If, in the future , you should wish to make application for employment to
our Personnel Department through the regular procedure of that depart-
ment, and there are , at that time , vacancies for which we believe you have
the necessary qualifications and competence, we will be glad to give con-
sideration to such future application.
August 2, 1948. Respondent posted on the bulletin board a notice reading :
Notice to Employees:
You have our assurance that, if and when any general wage increase is
made throughout the Southern Textile Industry , it will be made effective in
this plant , as has been customary in the past . It seems that such a general
wage increase is presently being contemplated.
(Signed ) G. ARTHUR CooK,
. Treasurer.
No similar notice had ever been posted preceding any former "customary" wage
increase . ( This notice was posted 1 week before commencement of the hearing
in this proceeding.)
Certain of the events above catalogued require more detailed discussion.
Before entering upon that , however, another chronological list of events should
be set forth . That is, of the course of alleged antiunion statements which Ryan
characterized , in his testimony , by the phrase "the campaign to demoralize the
Union."
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
d. "The campaign to demoralize the Union"
To complain about this , Ryan testified , was the major purpose of the trip
made by Davis , Evans, and himself to Constangy 's office in Atlanta on December
9, 1947. He did not specify what he regarded as included in the phrase , except
the treatment Farrell was currently giving them in regard to the list , the evic-
tions and the course of statements which he characterized as antiunion and
which, over the preceding months, had been reported as emanating from the
overseers and their assistants.
The treatment given the Union in regard to the list will be related in detail
hereinafter . The fact of the evictions has been noted and will be referred
to again.
The reports of statements antipathetical to the Union had begun to come
in before the mill closed and did not end until shortly before the hearing in
this proceeding , over a year later.
At a time identified only as "in the middle of the Spring of the year before
the plant closed down in July ," in a conversation with then employee Jesse
Bradley, Assistant Overseer Beard said, "I'll bet you a hundred dollars that
Mr. Cook never will sign another union contract. I know they won't sign
another one."
June 7, 1947. Chief of Guards Henry Till said to Union President Louis Evans,
"Louie, they are fixing to bust up the Union . I thought I tip you off , so that
you could keep your ears and eyes open."
July 1947 . ( Exact date unspecified .) Assistant Overseer Fred Strickland
said to employee A. C. White, "Looks like this mill is going to shut down.
I'll be glad when it do . We won't have no seniority and I won't have no damn
Union to put up with." This remark was made when White, in an official
union capacity, was protesting an act of Strickland's which he thought violative
of the seniority provisions of the contract.
July 1947. ( Date not specified more exactly than "a week or two after" the
foregoing .) Overseer V. E. Fisher , in a casual , off-duty conversation , said to
White, "I'll be glad when it (the stock on hand ) do run out , because then
we won't have any more seniority , and we won ' t have no damn union and
there won ' t be any contract."
July 1947. ( Exact date unspecified .) Assistant overseer Beard, in a casual
conversation , said to employee Ross Hamilton , "After expiration of the contract,
there won 't be no Union."
July 19, 1947. Overseer C. P. Tisdale said to employee Thomas Lee Paxton,
"I'll see about your job if they ever start up, but there's one thing sure. I want
you to know that there won't be any union to dictate and the people will know
who's boss."
July 22, 1947. Master Mechanic Harry C. Norman, the overseer of the Main-
tenance Department , said to employee Linzy J. Baker, "Whenever you come back,
you'll come under no seniority." Baker said, "Well, that means no Union."
Norman replied, "Oh , no. Not a chance."
November 1947. Shortly after the November 6 meeting, Beard said to termi-
nated employee Robert Kellum, "Well, Bob, your Union's gone. Your man (Ryan)
sold you out . You won't have any more Union."
November 1947. (Exact date not specified more closely than a week or two
after the foregoing .) Kellum and Beard happened to meet again , got into con-
versation . In the course of it, Beard said that the Union "wasn't any good" to
its members and that it "was busted."
WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 833
January 1948. Terminated employee A. C. White came back to the mill to
get his tools. Overseer Fisher was checking the process. When White's union
membership book turned up, Fisher said, "You just throw that away and forget
about it. You won't need it here or nowhere else."
January 1948. Guard John Cone told terminated employee Edward E. Elmore
that he had lost his job only because of his union membership.
January 16, 1948. Beard told terminated employee. Everett Rester that he
had been let out only because of the Company's desire to get rid of the Union.
Beard also said, "The mill just shut down to get shut of the Union," and "It
will never start up any more with a Union."
January 26, 1948. At the mill, Beard said to recalled employee George W.
Couch, anent Cook's letter of that date which had just been delivered to the
employees, "Well, George, I guess this is the end of a damn good Union."
February 1948. Beard said to Kellum, "Well, Bob, your Union's gone," and
followed this by saying that Mr. Farrell told him "they wasn't going to have
a union there any more; that they would shut down before they would."
February 5, 1948. Tisdale read to recalled employee John Porter a note signed
by Cook stating that word was to be given out to the employees that the Com-
pany had come to the conclusion the Union did not represent a majority and,
hence, would not deal with it.
June 1948. In a casual conversation when they happened to meet near the
plant gate, Beard said to terminated employee Baker, "Well, Mr: Farrell said
we wouldn't have no more Union ; not as long as he had anything to do with
West Boylston."
July 1948. Beard told Kellum that if the Union were to win this proceeding
the Company would shut down the mill. "If they do, there won't any of us be
here long. They're not going to start back up, if they win."
Without identifying the dates of the remarks, Shelby Holmes, a recalled
employee who was working for Respondent at the time of the hearing and at
whose home Beard roomed, testified concerning Beard, "Well, I heard him say
many a time we wouldn't.have any more Union out there. The Union was gone."
George Pearson testified to a number of conversations with Beard. The dates
were not identified more closely than that they were after Pearson's recall, in
October 1947, and before July 1948. In one, Beard asked, "What do you think
about the Union now?" Pearson replied, "I don't know. What do you think
about it?" Beard said, "It looks like the Company is doing a good job at it,
but they just got started at it wrong. They could have done a better job if
they had started right. They could have kicked all of you out and had it
whupped completely."
At another time, Beard asked Pearson, "Do you think they got the Union
whupped good?" Pearson answered, "No, they ain't got it whupped." Beard
replied, "Well, they say they got it whupped."
In still another conversation, Beard asked Pearson's view as to the probable
outcome of this proceeding. Beard went on to say, "If they don't win, there's
going to be somebody out of a job. If the Company doesn't win, the whole thing
is going to be laid on us overseers and section men, and if you don't win, we are
going to throw you out of here by the seat of your britches."
And, in a conversation identified as being about June 23, 1948, Beard inti-
mated to Pearson that during the meeting of November 6, when Ryan left the
Shop Committee outside of the building while he met briefly with Respondent's
officials, Ryan had betrayed the men. "The sixth day of November is the day
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they left you all standing out there in the grass . That's the day you was all
whupped out , right there."
As early as July 1947 , Ryan complained to Gross regarding statements being
made by the supervisory employees . The evidence does not show the detail in
which the complaint was couched , or whether it specified any particular state-
ments and named any particular supervisors or was only in general terms.
Obviously , not many of . the remarks above quoted could have been a subject of
,complaint as early as July 1947 . Gross said he would check into the matter and
if the supervisors were making the statements attributed to them, it would be
stopped.
At the November 6 meeting , Ryan brought up the subject of "all these wild
statements which had been reported to us."
And, as has been said , on December 9, 1947, Ryan made the statements a
: matter of complaint to Constangy.
The record contains no evidence indicating that Respondent made any effort
to discover the truth of the matter or to correct the situation . The only testi-
mony on the subject is to the contrary . Beard testified that no one ever talked
to him about it.
Beard and Norman were the only ones of the listed speakers to take the stand.
Norman was not asked about his conversation with Baker . Beard made blanket
denials of all the remarks the various employees had testified he had made. On
the testimony as a whole , that of the different employees who referred to him
and that which he himself supplied and on his appearance on the stand, the
impression is clear that Beard is an extremely garrulous person, a loose talker.
His denials of the remarks attributed to him do not appear worthy of credence.
It is found that he and the others above named made, in substance , the state-
ments set forth.
There is a complete absence of evidence of interrogation of employees as to
union membership or affairs , or as to organizational activities . Also, there is
an absence of evidence of statements of such a character that they must be
regarded-no matter what their context or the circumstances in which they
were uttered-as per se coercive , or as necessarily violative of rights secured
by the Act.
That certain of the remarks of Strickland , Fisher, Beard, and Tisdale-the
only ones of the above -listed speakers to be charged in the complaint with coercive
statements-can be interpreted in such a way as to render them violative of
Section 8 ( a) 1 of the Act , seems undeniable . But it also seems undeniable
that all of them can be interpreted as noncoercive and some of them as expres-
sions of opinion protected under Section 8 (c). Further , it is clear upon a study
of the whole record, when the quoted statements are examined in their context
and are evaluated in the light of the surrounding facts, the probability of coercive
tendency becomes less clear than appears when they are isolated from their
-background.
The major importance of the quoted statements in this proceeding seems to
-lie, not in the possibility of regarding them as unfair labor practices in and of
themselves , but in the light they throw on Respondent's acts earlier outlined and
to be discussed in more detail.
There may be doubt that coercive tendency can be attributed to the remarks
of the four overseers that seniority and the union contract were going to end
and that the Union itself was going to be out of the mill. But there can be
no doubt of the significance of the fact that these four and Norman , as well,
thus actually foretold, as early as July 1947 , what the course of events was to be.
WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA -835
There can be no doubt of the significance of the fact that while Respondent's
authorized representatives were still assuring the Union the contract would be
extended, a new agreement negotiated and seniority followed, these five members
of Respondent's management were negating their statements. And there
can be no doubt of the significance of the fact that all five expressed their
negation not in words connoting a mere vague prediction of a future event
but in those indicating a present intent and action in accordance with an existing
plan.
e. The meeting of November 6, 1947
The meeting held at Boylston, November 6, 1947, was the only one in the long
course of events above summarized attended by all the leaders on both sides of
the controversy. On behalf of the Company, Constangy, Cook, Farrell, and
Gross were present. The Union was represented by Ryan, Davis, and all the
members of the Shop Committee.
The meeting lasted all day. Ryan testified in detail and Davis, Cook, Farrell,
and Gross more briefly as to its events, discussions, agreements, and disagree-
ments.a
They agree that at the outset some time was taken in discussing, on a per-
sonal basis, the operation of Respondent's scheme of recalling employees.
The Union stated that the Company had made commitments with respect to
bargaining, recall of employees and seniority that had not been kept; that the
Company had failed and refused to meet and negotiate and had reopened the
mill in spite of promises that the reopening would be preceded by notice and
an opportunity to conduct negotiations ; and that it had recalled employees on
some basis other than seniority in spite of promises that seniority would be rec-
ognized and the provisions of the old contract followed. The Union demanded
an explanation.
Cook said 199 had been recalled. Constangy said, "We selected them uni-
laterally. We knew the Union could not and would not agree to waive seniority."
He explained that the selections had been made by rating the employees on
workmanship, attitude, quantity, and attendance.
The Union brought up the evictions from the houses in the mill village. Cook
took the position that this was not an issue open for discussion. The Union
seems, in general, to have agreed with that view but, because of the gravity of
the situation, it sought to aid the tenants in obtaining some delay. Constangy
said, "All we want them to do is get the hell out of that mill village because we
want those houses." Cook added that the Company was not in business as a
philanthropist and that it wanted the houses. Finally, it was agreed that if the
Union would get Hamilton, Cummings, and Rester to vacate, further steps would
be postponed 30 days to permit discussion of the problem.
Cook and Ryan agree that the matter of a new contract-particularly in regard
to a seniority clause-was thoroughly considered.
Constangy said he had examined Ryan's proposal. There seemed to be no great
difference of opinion except over the clauses covering a union shop and seniority.
The Union insisted on a seniority clause similar to that of the old contract. The
Company was equally insistent that seniority should start from October 1, 1947,
and all employees serve a 6-month probation. It was willing to agree to a pro-
vision that after such a probation an employee might accrue the seniority he had
standing to his credit when the mill closed.
za See note 16.
577359-50-vol. 87-54
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Two reasons were advanced by Respondent in support of this position. (1) It
said it had a duty to protect the employees it had recalled. (2) It advanced the
theory that in the changeover of the mill a new employer had come into the pic-
ture 23 Constangy is said to have phrased it,
This is a new company which is just taking over, the United Elastic Cor-
poration, and it feels no responsibility to these employees who used to work
for West Boylston Company.
Respondent was insistent that it would not arbitrate any claims of nonrecalled
employees to reinstatement over any who had been recalled. Constangy stated
that "the people who had not been recalled were finished." Finally, Cook said,
I don't blame these people for being somewhat disturbed in a situation of
this kind. There is no doubt that some injustices happened when selections
were made . There may be legitimate grievances . There might be some
basis for discussing changes.
It seemed impossible at that time to obtain agreement how any such matters
should be handled. Respondent was fixed in its view it would not arbitrate.
The Union was equally determined the cases should be arbitrated. In this
situation, the Union took the position that it could compile a list of those who
believed they had been unjustly passed over and desired to be reemployed, to-
gether with the facts of their employment histories; present this for considera-
tion; and that, at least, the individual cases could be dealt with as far as agree-
ments were possible.
It was agreed the Union should complete this list as soon as possible and
present it to Farrell and Gross. They were to check it and confer with the Shop
Committee. Cases on which they differed were to be reviewed by Ryan and
Cook. What was to happen when they disagreed was left for future decision.
Meanwhile, Constangy was to prepare and submit for consideration a suggestion
acceptable to Respondent, of a procedure to dispose of such cases.
Farrell and Gross both testified that an agreement was reached that the list
was to be limited to a maximum of 50 cases. Cook says that figure was men-
tioned at the meeting and that Respondent hoped the list would not exceed it,
but he specifically corroborated Ryan's testimony that it was not agreed to as
a limitation.'"
Cook and Ryan agree there was discussion of the possibility of a strike.
Constangy went over the situation that confronted the Union. He stated that,
the Union was placed in a position where if it struck it would, in effect,
be striking 480 people for the'jobs of 200 within the mill ; that if the 200 in
the mill struck, the Company was certainly going to spread the word by any
means it could that the first 200 reporting would get these jobs; that the
local authorities were standing by ready to act in the event of disorder; that
the Union was the representative of the 200 who had been recalled and if
23 Ryan's testimony that the claim was advanced of a "new company " is corroborated
by the proposals Constangy submitted on November 13. They are discussed later in the
text.
24 As has been noted , when the list of 144 names was presented, no objection was made
that it was in violation of an agreement to limit it to 50. The failure of such objection
corroborates the testimony that there was no such agreed limitation . The Trial Examinor
discredits Gross ' and Farrell's testimony in this respect. If there had been such an agreed
limitation , the acceptance of the longer list with the promise to review it and act upon it,
would , it is submitted , constitute a waiver of the limitation , even if it had been agreed
upon as a condition precedent.
WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 837
it attempted to get them out of their jobs in favor of outsiders it would face
the possibility of decertification proceedings 25
The Union pointed out that if a second shift could be put in operation it would
create a number of additional jobs and thus would relieve the situation. Cook
and Ryan agree in testimony that Cook stated there was no prospect of a second
shift "in the foreseeable future." Cook said that by this he meant "in the next
few weeks." Ryan said he understood the statement to mean "the plant is on
practically a one-shift permanent operation." Gross' letter of November 7,
already quoted, seems to confirm Ryan's understanding of the matter. Its
phrases "will operate in the foreseeable future on even a one shift basis" and
"No further expansion . . . is contemplated" seem inconsistent with Cook's
claim.
Constangy raised the question of a general wage increase throughout the in-
dustry, to become effective on November 10. He said the Company wanted
to put it into immediate effect. Ryan suggested that it be deferred until it
could be made in connection with a new union contract and then be made ret-
roactive. Constangy objected to this, stating the Company felt it had to in-
stitute the raise immediately. Earlier in the meeting, the Union had com-
plained of remarks, reported to have been made by some of the supervisors,
to the general, effect that "the Union is dead." Constangy suggested that the
Union join in a stipulation covering the wage increase. He said, "This stipula-
tion will prove conclusively that the Union is still in the picture." The Union,
faced with the knowledge that in any event the increase was going to be made
effective immediately, acquiesced in Constangy's suggestion and joined in the
stipulation.Y6
It was agreed to postpone further negotiations for a new contract until the
list of employees desiring reinstatement was completed, as that would demon-
strate the size and seriousness of the immediate problem with which the parties
were faced and would enable them better to discuss what the seniority provision
should be. It was agreed that meanwhile Constangy should draft and submit-
together with his proposal of machinery for handling the list-a suggested
seniority provision which would be satisfactory to Respondent.
Also, it was agreed that Gross should furnish the Union with a list of the
employees who had been recalled and a list of the departments which had been
reopened. This list of departments was furnished the next day, but the list
of recalled employees was never received.
f. Respondent's severance notices
Just before the mill closed, in July 1947, and, hence, before the termination
date stated in the collective bargaining agreement, Respondent sent to the em-
ployees two different types of severance notice. One read, "Laid off; No work
available." This was sent to the members of the first shift-with certain ex-
ceptions. The other read, "Job discontinued; Employment terminated." This
was sent to the members of the second shift, to the members of the third shift,
25In this connection, it should be remembered that the statement had been made, "the
people who had not been recalled were finished." Obviously, under this view, Respondent's
unilateral selections were to determine who were and who were not within the Union's
sphere of representation as employees. For corroboration of the fact that this was Re-
spondent's view of the matter, see Cook's letter of January 26, 1948, discussed later in
the text.
25 This stipulation was signed by the members of the Shop Committee and was posted
on the mill's bulletin board.
838. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who at the time of its discontinuance had been given lay-off notices, and to
some-possibly to all-of those members of the first shift who worked at ma-
chines which would not be used in the manufacture of knitting and weaving
yarns.
These notices were sent on the basis of shifts without regard to the respective
seniorities of the recipients. This fact caused a great deal of disturbance among
those of the employees who thought they were being terminated wrongfully.
It distressed the Union which believed the notices constituted a breach of the
contract and violated the seniority rights and procedures guaranteed by it.
The evidence is contradictory as to Respondent's reason for its course of
action in respect to these severance notices.
Because of the disturbance of the employees and the Union over what ap-
peared to them to be a violation of the agreement and of rights secured under
it, Ryan went to Gross to inquire about the matter. Gross assured him that
there was nothing to be concerned about, that Respondent was not terminat-
ing the employment of those who had received the "Job discontinued ; Employ-
ment terminated" notices and that the only reason for the use of this language
was compulsion by the Alabama Unemployment Commission.
On July 18, Ryan talked to Constangy about these notices. He told Ryan
that Gross had given him the same explanation of the words used which he
had given the Union, that they had been required by the State Commission. He
went further and assured Ryan that the Union bad nothing to worry about in
regard to the notices, so far as the Company was concerned, that it was going
to recognize seniority as theretofore and that the provisions of the contract
would prevail.
A few days after this, on July 22, a delegation from the Union went to the
Commission. It denied that Respondent had consulted it in regard to the matter
and stated that its rules and practices did not require Respondent to use the
forms of notice it had adopted.
Finally, on July 24, just 2 days before the mill closed and only a week before
the expiration date of the union contract, Constagny wrote Ryan. He pointed
out that it seemed probable the mill would reopen with only a one-shift oper-
ation and that, in consequence of this, a number of the employees would be
bound to lose their jobs. He went on to say:
We, of course, recognize that there are people on the second and third
shifts with greater seniority who will be able to bid out or bump some of
the people who are presently on the first shift.
The foregoing is my understanding of the situation and I thought it
might be helpful to you to understand the exact reasons for the Company's
course of action.
The language and the date of this letter should be noted. The letter was
written when the mill was actually in the process of closing. It shut down com-
pletely only 2 days later. It was written only a week before the Union contract
was to expire. Constangy must have known these facts and must have known
that the mill would not reopen to give an opportunity to exercise seniority rights
until after the expiration date. He must have known that a letter so phrased
would be accepted as confirmatory of the statements orally made only the week
before. The use of the future tense seems deliberate.
Constangy's letter seems to have satisfied the Union at the time. There is no
evidence that the dissatisfaction caused by the forms of notice continued to
create active unrest after it was received.
WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 839
The letter bears a notation indicating that a copy was sent to Cook. He did
nothing to correct any of its statements.
Cook testified, in regard to the notices :
I gave a lot of thought to the form of the separation notice. I knew that
when and if we got converted to weaving and knitting yarns we would only be
operating one shift. I had every reason to believe that when the employees
got a job discontinued, employment terminated, it was the first duty of the
Alabama Unemployment Service to get them located. Usually they weren't
very active where they got a lay-off notice.
Cook explained his belief by stating that for a number of years he had been an
Industry member of the Commission.
Cook's reason can have validity only upon the assumption that the recipients
of the "Job discontinued; Employment terminated" notices would, in fact, be the
persons who would be seeking the aid of the agency. Obviously, then, his state-
ment presupposes there would be no "rolling and bumping" since this would sever
not the recipients but the "rolled and bumped" persons who would have, to show
the Commission, only notices reading "Laid off; No work available," and .thus
would nullify the reason given for the forms of notice adopted.
But if we make this assumption, we are forced to the view that Respondent
was disregarding the provision of the contract to handle lay-offs and recalls in
accordance with principles of seniority.
The only way in which Respondent's use of the two forms can be reconciled
with the contract is to assume that no matter who received which form, "rolling
and bumping" would be possible, so that the employees, among themselves, would
be able to bring the result of retention or recall to employment in line with their
respective seniorities. It is not necessary to argue whether or not this would be
technically within the terms of the agreement. At least, it would permit attain-
ment of the ends the contract sought to secure. Anything less would thwart
those ends.
It must be remembered that the only explanations given the Union at the time
were that stated by Gross, that the jobs were not being terminated, and that both
stated and written by Constangy, that seniority would continue to be recognized,
the contract would prevail, and the employees would be able to protect their
rights as theretofore.
g. The "merit-rating system"
Respondent, admittedly, did not, recall employees in accordance with seniority.
It was not considered in making the selections for reemployment.
At the meeting of November 6, Ryan asked how they had been made. Con-
stangy answered by saying the men had been graded on workmanship, attitude,
quantity or volume of production, and attendance, and that those with the best
records had been chosen. He did not refer to a "system," say how the grades
had been made, or, even how the terms he used were to be defined. Most certainly
he did not suggest a system that had been long established. So far as is shown
by the evidence, it was not until the hearing that the claim was first advanced
that the selections had been in accordance with and were the results of applica-
tion of an established "merit-rating system."
In spite of Cook's knowledge of Constangy's assurances to the Union that the
employees would be able to protect their seniority rights under the contract, he
told Farrell and Gross to recall the employees with the best standing, as shown by
the Company's records. He did not give, directly, the date of these instructions.
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
But Farrell testified he was told of Cook's decision in the first part of August.
Gross corroborated the time by stating he got his orders from Farrell, "shortly
after the shut-down," which had occurred on July 26. And that this was the
approximate date appears, by indirection, from Cook himself. He said,
I toldDlr. Farrell and Mr. Gross to call back those with the highest rating
in line with their cards.
And he followed this with the admission that this method could not have been
followed, "had the expired Union contract been in force."
There is no evidence to indicate that the change of intent as to the method of
selection, after Constangy's letter of assurance, was ever notified to the Union.
In fact, the contrary appears. On August 7, Constangy again told Ryan that
workers would be recalled in order of seniority. On August 12, Constangy wrote
him that it would be November 1 before the mill could reopen and that the Com-
pany would advise the Union sufficiently far in advance to permit negotiation of a
new agreement.
On the basis of Cook's testimony, it appears to be established that the reason
underlying his refusal to extend or renew the union contract or to afford oppor-
tunity for negotiation of a new one in advance of the reopening was to enable
Respondent to make a unilateral selection of the employees to be recalled.
Further, on the basis of Farrell's and Gross' testimony, it is clear that it was
not until after the conflict of Respondent's interest with that of the Union in
the method of selection had become clearly apparent, that the merit-rating sys-
tem was adopted as the basis for recall. This was supplemented by Cook's
answers :
Q. Was there any particular reason why you did not discuss that [recall
according to the merit-rating system] with the Union?
A. Except possibly the difficulty to get them to agree to it. At the Novem-
ber meeting we couldn't get them to agree to it.
Q. Of course, Mr. Cook, the November meeting was after the act had al-
ready happened?
A. Right. Correct.
Q. Then were you anticipating more or less difficulty, that is, you thought
the Union was going to take a certain position?
A. I will have to answer that, Yes.
Q. And because of that anticipation you took unilateral action, is that
correct?
A. Yes.
Cook, Farrell, and Gross all stated that the process of grading the first and
second shift employees was not commenced until "some time in August," after
the plant had closed. Thus, it is clear that the decision to use the merit-rating
system as the recall basis not only immediately followed the shut-down and the
expiration of the union contract but also that it immediately preceded the grading
of the employees under the system. The order of these events, their close prox-
imity in time, and Cook's admission of a conscious belief that they gave a free-
dom to act adversely to the Union's desires which Respondent did not have
before, make it necessary to examine the system adopted and its operation, in
some detail.
Respondent contends that it had adopted the system some time before the 1947
shut-down. Cook said it dated from 1944; thus making it antedate the first
recognition of the Union as bargaining agent. Gross said it dated from about
WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 841
the middle of 1945; making its adoption about coincide with the execution of the
first union contract. Farrell said it dated from some time in 1946. Of the three,
Gross testified in the greatest detail and the most positively as to the date. He
was the one most closely indentified with the operation of the system, as the
personnel officer under whose supervision it was conducted.
There is evidence in the record casting doubt on an origin earlier than 1947.
It is unnecessary to decide the conflict since even if it be found that the system
was adopted in 1945, the finding would have to be qualified by the observation
that, due to its method of operation, and to the fact that there had been no
instances of major or group severance in 1945, 1946, or the first part of 1947, it
existed almost entirely in theory, its physical manifestation being only a pack
of cards, blank except as to the employees' names. It existed in potentiality
rather than in fact. And the finding would have to be qualified further by point-
ing out that there is no evidence this potential effect of the system-or for that
matter, even the bare fact of its existence-was known to the Union or the
employees.
In theory, the system worked as follows: (1) A. "Department Record" card
was filled out as to each employee's name at the personnel office and sent to the
department to which he was attached; (2) it was kept, in blank, in the office of
the department overseer so long as the employee remained in that department ;
(3) on any form of severance-voluntary or involuntary-blanks were checked
as to the employee's rating in workmanship, attitude, and quantity, the card was
signed by the overseer and sent back to the personnel office; (4) there, the
employee's rating in attendance was checked; (5) the ratings given by the over-
seer were reviewed and sometimes revised by Farrell and Gross; and (6) the card
was retained, thereafter, in the personnel office.
As has been stated, the employees were rated on four characteristics: work-
manship, attitude, quantity, and attendance. There were three possible ratings
in each : good, fair, and poor, designated by initials, "G", "F", and "P". (The
cards also bore the letters "VG" and "E", but the ratings "Very Good" and "Excel-
lent" were never used by Respondent.)
The ratings were carried over into a numerical grade. For this purpose, "G"
had the equivalent of 2.0; "F", of 1.0; and "P", 0.0. The figures thus derived from
the four ratings were added and the sum divided by four to obtain the final grade.
Under this procedure, it is apparent that each of the four rated qualities was of
importance equal to that of the other three in determining the grade. This is
significant, in view of Gross' testimony that eligibility for recall was decided by
the numerical grade, all who had less than 1.2 being eliminated. It should be
noted that length of service played no part toward the result.
One step essential to the evaluation of the system is to discover the definitions
of the four characteristics. Gross defined them :
Workmanship. The ability and skill, plus the initiative, to do a certain job.
Attitude. Willingness to cooperate with supervision.
Quantity. The volume of production produced by an employee relative
to the standard set for such job.
Attendance. The proportion of available time worked. It is graded from
the number of days worked in the number of days that were available for
various employees to work.
At the November 6 meeting, Constangy admitted that attitude was "a very
weak point," and at the hearing a great deal of time was taken in elaborating
its weakness. As defined by Gross, the decisions under it must have been made
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon a basis almost entirely subjective of the overseer who made the rating.27
Nor does this defect appear to have been cured by the fact that the ratings were
reviewable by Farrell and Gross. That merely substituted their subjective opin-
ion-in the cases they subjectively decided to examine-for the subjective opin-
ion of the overseer 26
The fact that this was not a periodic rating system should be borne in mind.
Where rating is done regularly there is some degree of certainty that the grades
will be based upon comparable periods and similar conditions . More important,
such periodic rating will reflect progress or retrogression and will, in itself, give
some assurance that old-time faults are not improperly revived. And, possibly
most important of all, the fact of periodicity furnishes a basis for confidence in
the integrity of the ratings and their freedom from individual discrimination.
There is no evidence in the record as to the instructions given the overseers
regarding the system or their part in its operation ; none that they were even
informed of the definitions of the characteristics on which they were rating
the men under them; none as to their care or skill or experience in rating;
none as to what they did, in fact, consider. Gross was asked for his explanation
of a number of the individual "P" ratings in attitude and repeatedly answered
that he did not know the reason for the low rating, that it had been given by the
overseer. One illustration is sufficient. Gross was interrogated about the rating
of one Douglas Wade, who had been given the attitude rating "P". Gross said
that he had never received any report that Wade had been unwilling to co-
-operate, or that he had failed to carry out reasonable instructions. His only
knowledge of the grade was that it had been given by the overseer. He ad-
mitted that an attempt had once been made to discipline Wade for alleged union
activities within the plant; that this had given rise to a grievance proceeding
and an arbitration and that this had been decided against the Company. Gross
said he could not testify whether or not that episode had been causative of
Wade's low rating. None of the overseers was called to explain the marks he
had given 2n
Further, it should be remembered that whole departments were rated simul-
taneously. The overseer of the Carding Department had about 200 to rate ;
the Spinning Department overseer, almost 300. In each department there were
employees with varying lengths of service ; some whose employment went back
to the opening of the mill in the 1920 ' s, and some who were hired only a month or
two before the shut-down.
.
The overseers ' ratings , it is claimed , were reviewed by Farrell and Gross. The
latter described the working of their system of review . When the cards came
.from the overseers , they looked them over . If they, on the basis of their personal
knowledge of the employees , decided that a man had been rated wrongly, they
revised his rating upward or downward . Customarily , in such cases they talked
the matter over with the overseer . It seems incontestable that, in great part, the
value of this review , both to Respondent and to the men as a safeguard against
discriminatory treatment at the whim of the supervisors , must depend upon the
27 It has already been pointed out that several of the overseers had voiced hostility to
the Union just before they were called on to rate their men.
28 The evidence contains a number of statements , attributed to supervisory employees,
- quoting strong antiunion remarks they alleged Farrell had made.
29 This statement must be qualified so far as Norman , the overseer of the Maintenance
.Department , is concerned . He was called as a witness and questioned in regard to the
merit-rating cards of one Missildine . His interrogation , however , did not cover the points
stated in the text.
WEST BOYLST'ON MANUFACTURING COMPANY OF ALABAMA 843
degree of knowledge with which Gross and Farrell approved or revised the orig-
inal grades . Gross said the knowledge on which they did this was that they
obtained by observation of the men at work. Each of them spent about 60 percent
of his time in the production departments of the mill . There were six of these
departments , some of them with a number of divisions . The mill occupied two
large buildings , one of two floors, the other of three . On each floor , the presence
of bulky machinery obstructed vision and limited the ability to observe from any
point to a comparatively small area. Further, the mill, until June 1, 1947, worked
around the clock, with the employees divided among three shifts . And while it
is not directly stated in the evidence , it appears these shifts were more or less
permanent and not rotating.
There is no suggestion in the evidence that an employee could ever learn how
he had been rated, and , of course , there was no way in which an employee could
protest or appeal. The rating, right or wrong, just or unjust , was final.
The merit-rating done between the shut-down and the reopening of the mill in
1947 may be summarized : ( 1) It was done pursuant to a system that appears to
have been devised for that occasion and, at least, had never had more than mere
token use before that time; ( 2) done in accordance with subjective standards;
(3) done by overseers as to whose training , instruction , aptitude or competence
for such a job there is no evidence and no basis for judgment , who apparently
were inexperienced in rating and many of whom had*expressed antipathy for the
Union ; ( 4) done in such manner that no one-not even the personnel director
who was in general charge of the system-could know what was the basis of the
marks given , or even be sure that proper union activity did not become a cause
of demerit ; ( 5) done at a time when there was a particularly great consciousness
of conflict between company and union interests in the selections for reemploy-
ment which was the ostensible purpose of the ratings ; ( 6) done secretly and
maintained in secrecy , without the knowledge of the rated employees or of the
Union, without opportunity to learn the grades given and without opportunity
or means to protest or appeal; and ( 7) done in such a way as to permit the
Employer, at any time and for any reason, to substitute another grade for the
one actually entered at the time of rating.
It is clear beyond the possibility of argument that it was possible to use Re-
spondent 's merit-rating system as an aid to or a concealment of an antiunion
motivation and consequent discriminatory selections in the recall of employees
to work. Gross' statement as to the part played by the employment office in the
rating, "We reviewed all the grades and would suggest some changes that we
thought was necessary ," seems to compel this view.
h. The "merit-rating system" in operation and the recall
Was the system used, in fact , as Gross testified , as a means of assuring the
retention of the most efficient employees , or was it used as a means of effectuat-
ing, or of attempting to conceal , an antiunion discrimination? In 1940 the Board
approved a formula for determining the answer to this question.
It would be expected that in a selection of employees to be laid off without
regard to union affiliation the proportion of union members among those laid
off would approximate the proportion existing in the .group from which the
selection was made.30
30 F. W. Woolworth Company, 25 NLRB 1362, 1373 ( 1940).
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 's records show a total of 712 employees before the discontinuance
of the third shift.31 Of them, 556 were on the check -off and thus were known by
Respondent to be union members. Union membership thus constituted 78 percent
of the group.
Of the entire personnel, the group that was rated "G" in attitude totalled 490.
Union members received 74 percent of these ratings . Seventy-four were rated
"P" in attitude . All but 3 of these disqualifying ratings went to union members:
Not all the employees listed were given a numerical grade, although all were
rated in the four attributes. In 141 instances, the employee's name is followed
by the words "Job Discontinued." One hundred and twenty-four of the jobs thus
listed, 88 percent of the total, were held by union members.
The remaining 571 were graded numerically, in addition to the ratings given
them in the four attributes. Gross said the recall was made on the basis of the
grades, those given by 2 .0 being taken first, then those marked 1.7, next the men
with 1.5, and finally those who had received a grade of 1.2. All who were graded
lower than that were discarded.
The group of 571 who were graded was composed of 76 percent union members
and 24 percent nonmembers. One hundred and seventy were graded 2.0. These
top grades were divided, 30 percent to union members, 70 percent to nonmembers.
One hundred and twenty-seven received a grade of 1.7. Seventy-three percent of
these grades went to union members. Eighty-eight given 1.5; of them, union
members got 75 percent. Fifty-six got 1.2, the lowest qualifying grade. Union
members received 78 percent of these. Of the 441 who received grades of 1.2
or better, such as Respondent claims was necessary for reemployment, 72 percent
were union members. Of the 130 who were given disqualifying grades, 115, or
.88 percent were in the union.
Respondent's records show 117 not recalled as to whom no explanation is given
'except as it is deducible from the accompanying grades. Eighty -eight percent
of these are union members.
Of the people employed at the mill when it shut down, 431 were offered reem-
ployment, either when it reopened or as the second shift was put back in opera-
tion. Seventy-three percent of these belonged to the Union. Some did not
accept, some Caine back but later quit their jobs, some were discharged, some
took a leave of absence, some died. Due to such events as these there were
changes in personnel between the reopening and the time of the hearing. The
final pay roll before the hearing showed a total production and maintenance
personnel of 369. It seems impossible, on the evidence, to determine with com-
plete exactness which of the recalled and newly hired employees are included.
It is apparent that in the course of events, the percentage of union members has
slightly declined still further. The proportion at the time of the hearing appears
to have been about 70 percent in the Union and 30 percent nonmembers.
31 The statistics herein used are derived from Respondent's exhibit "N", which was
testified to have been compiled by Gross, the personnel director , from Respondent's em-
ployment records. It lists the employees by name, under their respective departments and
in their respective job classifications in those departments . It designates which of the
employees were on the check-off and thus were known by Respondent to be union members.
It shows which were affected by the job discontinuances. It shows the ratings given each,
which were and which were not given numerical grades and, in the cases of those which
were graded , what their grades were. It shows which were recalled and the respective
dates of recall. It shows which of the recalled employees did not accept reemployment,
-which died , which were discharged , which went on leave of absence , and which resigned,
between the date of the respective recalls and the time of the hearing.
WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 845
It would be unfair to leave this phase of the subject without pointing to two
matters that should be considered before drawing any conclusions as to antiunion
motivation from the figures,and percentages given. First, it must be remembered
that Respondent did in fact undergo a change of product which entailed a change
in production methods. This caused the discontinuance of an entire department
and of entire job classifications in departments that were continued. Many of
the job classifications that were ended as a result of this change were wholly or
largely filled by union members. None were wholly, and only one was majority
nonunion . Second, it must be kept in mind that in making selections for recall,
Respondent did not have a free hand, to be guided solely by consideration of
union or nonunion adherence, even in those classifications in which there was an
.adequate number of nonunion members. It had to keep in mind the necessity
to maintain a staff capable of meeting production requirements. In 1S of
the job classifications which Respondent had to fill upon the reopening of the
mill, all of the incumbents were union members. In many more there were not
as many nonunion members as there were places to be filled.
The General Counsel, however, did not so much seek to prove discriminatory
individual selections among the rank and file of union members as to demonstrate
an antiunion motivation of the merit-rating system and the recall through their
operation upon the Union's leadership. For this purpose he selected 36 named
employees, shown by the evidence to have been leaders in union activity, and
pointed out how they fared at Respondent's hands32
Seven of the 36 were rated "G" in attitude ; 20 "P". Twenty- nine of the 36
were given numerical grades in addition to the ratings. Nineteen of the 29
received less than the 1.2 which Respondent says was necessary to qualify for
recall. Of the entire group of 36, 7 were listed with the notation "Job Discon-
tinued" and 10 were recalled-7 of them when the mill reopened and 3 when the
seeond shift wa§ reinstituted.
Respondent denied-by implication, at least-that it had knowledge of the
Prominence in union affairs of some of the group. It is, of course, true that a
claim of discrimination on account of union leadership cannot be maintained
except it be shown the employer knew who the leaders were."
Respondent's denial of knowledge goes only to a few of those named. The
great majority were officers of the Union whose names and status had been
notified to Respondent. The others were shown to have participated in overt
collective action.
Here, the company officers, the supervisory employees, the secretarial force,
and the guards lived together with the rank and file employees within the narrow
confines of a small mill village. Beard even roomed in the house occupied by
one employed couple. Farrell and Gross had sons working in the mill. There
can be no possibility of doubt but that there existed many channels for informa-
tion to flow to Respondent's management concerning union activities and per-
sonalities.
Nor is there more possibility of doubt that there had been many occasions
tending to put these channels to use. This had been no quiescent union. In the
32 George Pearson, James Worthington, Lula McCatha, Louis Evans, Marvin Dickey,
Percy Evans, Doris Evans, William Peel, Leo.Spradley, Ina Crittenden, Emmett Ursry,
A. C. White, Ross Hamilton, Everett Rester, Charles Wallace, Douglas Wade, Tobie Gar-
rett, Lula Barnett, Ethel Barron, C.. E. Jordan, Robert Kellum, Lavelle Owens, Hardy
Evans, Obie Taylor, Raymond Thompson, James T. Moseley, Rufus Ewings, Clyde Webster,
Roy May, Joseph Cook, James Crawford, Ruby Melton, Homer Hamby, Myrtle Pearson,
Ruby Cook, Jesse Bradley.
33 F. W. Woolworth, 25 NLRB 1362, 1374 (1940).
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2 years of its existence, there had been a series of unauthorized strikes and
walk-outs. There had been a number of grievances. There had been many
arbitrations. There had been calls upon the Conciliation Service for aid. There
had been two protracted contract negotiations. There had been the serious
turmoil over the July 1947 severance notices.
It is incredible that Respondent did not have reasonably complete knowledge
of the personnel of union leadership in the mill.
i. The job diseontinuances
Enough has been said regarding Respondent's notations "Job Discontinued"
to require a few words more concerning the matter.
There can be no question but that the Company discontinued the manufacture
of fabric and disposed of the machinery required to carry its processes beyond
such stages as entered the manufacture of knitting and weaving yarns. Obvi-
ously, this actually dispensed with further need for a number of job classifica-
tions. Nor, on the record, can there be question of Respondent's elimination of
certain other job classifications through changes in job content which made
the former workers incompetent to continue. An instance of this is the aboli-
tion of the former classification of "Sweeper" and the creation, in its stead, of
the new one "Sweeper and Oiler."
This is sufficient to weaken, if not to destroy, any inference of union hostility
that might be drawn from the bare mathematical fact that of 141 jobs bearing
the notation, 124 were held by union members. But it is not sufficient to resolve
all the doubts which arise from Respondent's use of the phrase. At least two
remain.
(1) There are a number of instances of recall of employees whose jobs were
discontinued. They were recalled to work at jobs differing from those they
held before the shut-down and, in many cases, in different departments. An
instance of this is to be found in the case of Benson Campbell. When the mill
closed, its "Twisting and Winding" Department had a division of "Cable Twist-
ing." This division had two section men, Campbell and Tobie Garrett. Both
were union members. Garrett was one of the known union leaders. So far as.
the evidence shows, Campbell had no connection with union affairs beyond his
mere membership. Both of the men were rated "G" in everything except atti-
tude, in which Campbell received "G" and Garrett "F". Campbell was graded
2.0. Garrett was not graded but, on the grading basis Respondent claims was in
effect, he was entitled to a grade of 1.7. Garrett had seniority dating from 1928,
exclusive of any question of superseniority due to his union office. Campbell
had seniority dating from 1941.
In the change-over, cable twisting was discontinued.
When the mill reopened, Campbell was recalled as a ply-twister tender. Gar-
rett was not recalled. The only explanation given of his nonrecall is the notation
"Job Discontinued."
There are other similar cases shown by- the record ; enough of them to create
a strong suspicion that the recall of persons from discontinued jobs was made, in
part at least, on a basis discriminatory against those who engaged in organiza-
tional activity. The record, however, is not sufficient to permit definite findings
of antiunion motivation in this phase of the proceeding.
(2) Certain of the "Job Discontinued" notations appear to have been made
upon a personal rather than a job classification basis. That is, there are some
instances in which it seems to have been not so much the job as its incumbent
that was discontinued. And in some of these there are circumstances to indi-
WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 847
fate it may have been union activity that was the cause. An instance of this
is the case of Louis Evans, union president.
Prior to the change-over Evans was employed in Respondent's Maintenance
Department. Evans says he was one of four in the classification of machinists
or mechanics. Of the four, he had the least actual seniority but because of his
union office he had superseniority entitling him to the first position on the
seniority roster. On the other hand, Respondent says. Evans was not a ma-
chinist but the sole occupant of another classification entitled Welder.
It is agreed that prior to the shut-down, Evans did most of the plant welding.
This took about 80 percent of his time. There is no contradiction of Respond-
ent's claim that with the sale of the looms the amount of welding required to
be done greatly dropped, so that since the change-over not more than 20 percent
of a man's time would be needed for such work.' Neither is there contradiction
of Respondent's statement that since the amount of welding has so decreased
it is economically advantageous to have it done by contract rather than by a
mill employee.
Doubt is cast upon Respondent's theory by its own listings of its job classifica-
tions and descriptions of their duties, made before this proceeding was threatened.
In 1939 and again in June 1947, Respondent had job surveys made of its entire
mill, the latter of these in anticipation of the then impending production changes.
The 1939 "Detailed Classification of Present and Suggested Job Assignments"
not only contains no classification entitled Welder but specifically provides in the
description of mechanics' duties, "They do . . . all the welding." The foreword
of the 1947 survey indicates that the attempt was made to forecast the require-
ments after the change in product.
Our survey is . . . based on the mill running on other products than Tire
Cord . . .
This report, like the earlier one, listed no separate classification of Welder.
Differing from the former one, it indicated recognition that at least the greatest
part of the welding was being done by one person. The job description for
Machinists read,
Present. Including the Welder, there are four of these men. . . . One
man works on each shift and the Welder works from 8 A. M. to 5 P. M. When
necessary, they . . . do electric and acetylene welding . . . etc.
Suggested. There will be three hands to carry on the duties shown above.
In fact, Respondent recalled only one of the four, a man whose seniority dated
from 1937. Ho was outranked, so far as seniority is concerned, by another ma-
chinist, Marvy Dickey, as well as by Evans. Dickey had seniority dating from
1936. Also, as shop steward he had superseniority. Evans had actual seniority
only from 1943-even though he had worked for Respondent for a number of
years before that-but had the superseniority which attached to his union office.
So far as the record shows, Helms, the machinist recalled in preference to them,
had been guilty of no organizational activity beyond his mere union membership.
Again the situation is provocative of suspicion that Respondent exercised its
prerogative of control to discontinue not jobs but men and selected for discon-
tinuance those who had been active in the Union's behalf.
j. The list of "unjustly treated" employees
At the November 6 meeting, it will be remembered, Cook suggested that perhaps
some mistakes had been made in the selection of employees for recall and that
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
perhaps it would better the situation if these cases were to be reviewed. The
Union acquiesced and set about a canvass, in preparation of a list of those who
desired reemployment.
While it was going on, Constangy, pursuant to a further agreement reached
at the meeting, drafted, on behalf of Respondent, a suggested procedure for re-
viewing the names to be presented. After it had been approved by Cook he sent
it to Ryan, on November 13.
The proposal Contained the following:
(Preamble.) It is agreed . . . that . . . the Company has selected the
employees . . . on the basis of quality, quantity and volume of production,
attendance and attitude.. .
(3) That . . . the President of the Union and the General Superinten-
dent . . . shall select the fifty most meritorious cases . . . and schedule
them . . . for an opportunity to be heard.
(4) Hearings shall be held by . . . a representative of the International
Union and ... either the Treasurer or Attorney for the Company. At said
hearing, the employee shall be entitled to state the basis of his conten-
tion. . . . The Company shall state the basis upon which it made its decision
in filling the position in which the employee is interested.
(5) At the conclusion of said hearing, the representatives . . . shall
endeavor, in good faith, to determine whether or not the employee has been
discriminated against. . . . In the event of disputes between the two . . .
the decision of the Company shall be final. Determinations of such hearings
or dissatisfaction with the decisions of the Company, shall not be subject
to arbitration, it being understood and agreed that persons being given the
opportunity to be heard . . , are hot deemed to be employees of the Com-
pany, but merely former employees of the Company's predecessor and, as
such, have no inherent rights under the present agreement between the
Company and the Union, but have only such rights as may be determined
upon by mutual consent, or in the event of disagreement, by the Company
as a result of this agreement.
The Union acknowledged receipt of this proposal but did not sign or agree
to accept it. Neither did it argue about or protest its terms. Nor did it submit
a counterproposal.
It proceeded with its work of collecting the names and data. On December 1,
it presented to Farrell a "partial list" with about 100 names. On its presenta-
tion, Farrell was told that the canvass was taking more time than had been
anticipated and that the remainder of the list would be presented on completion,
within a few days. Meanwhile, he was requested to start his work with this
partial list. He answered that he could do nothing until the list was completed."
The remaining names and data were given him on December 8, and at that
time copies of the entire list were sent to Cook and Constangy. The complete
list contained 144 names.
When the final installment of the list was given to Farrell, he was asked
for immediate action. He responded that the Union had taken several weeks
and that he also had to have time ; that he would go over the list when he could
and that when he had done so he would inform the union representatives.
On December 9, Ryan, Evans, and Lloyd Davis went to Constangy's office in
Atlanta to complain about Farrell's reception of the list. Constangy said that
he would talk to Farrell and do his utmost to obtain speedy action. Ryan thought
34 See note 20, supra.
WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 849
Constangy seemed encouraged by the fact the list did not run to the whole 400
or 500 who had been laid off. Certainly, he did not object to the length of the
list submitted."
December 16, Davis reported to Ryan that he was still unable to get Farrell
to act, comment, or do anything about the list, or even to get him to go over it
with the committee. Ryan called Constangy who repeated that he would talk
to Farrell and get as speedy a report as possible. Constangy said that by the
time Ryan could get in touch with Davis again he would have been in contact with
Farrell and would have matters arranged.
On the 17th, Davis again called Farrell. He had difficulty in getting an
opportunity to talk with him but finally succeeded. Farrell told him :
Well, Davis, I'm not a miracle man. You just submitted those lists to
me about ten days ago. I got to study those things, too. Remember, you
took three or four weeks to get them up. Its going to take some time. I
want my Christmas holidays. I'll give you a call . right after the
Christmas holidays.
In this connection, it should be noted, that Farrell, in his cross-examination, ad-
mitted that at the time the lists were submitted to him he had records showing
the seniority dates and employment history of all the employees, and that all
the information he would need in connection with the list was available to him
"practically immediately." His cross-examination went on: -
Q. So that actually you could have discussed intelligently these
employees' records almost immediately, couldn't you?
A. Yes.
In the light.of Farrell's own testimony, it seems impossible to credit him with
good faith either when, on December 1, lie said he could not commence work
until the list was completed or when, on the 17th, he insisted that he must have
time.
January 7, 1948, Davis, not having received the promised call from Farrell,
attempted to call him but his secretary refused to make the connection saying
that he was not in. Unavailing attempts to get in touch with him continued
over several days.
Finally, on January 19, Davis sought to call Cook. Miss Ward, his secretary,
refused to connect them and told Davis to call Constangy. Davis protested that
he had already talked to him and that he had promised to get action by Farrell
but that nothing had happened, in consequence of which Davis felt he "was
getting the run around, altogether." Miss Ward's reply was only :
Well, I'm sorry. You'll just have to contact Mr. Constangy, as he is
handling the labor relations for the Company.
Meanwhile, matters had developed so that the Company found it necessary
to put on a second shift. This resulted in the recall of about 150 more em-
ployees. Respondent did not notify the Union of this development. Commenc-
ing late in December 1947, and continuing at an increasing rate through January
1948, it recalled old employees or hired new ones. As has already been noted,
it took on 27 on January 19, the day Miss Ward refused to allow Davis to talk to
Cook, took on 19 more in the next 3 days and another 53 in the week following.
In the course of doing this, Respondent called back 34 whose names appeared
on the list complied by the Union. These, like the October selectees, were chosen
85 See note 21, supra.
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Respondent "unilaterally," without conference with the Union, and without
reference to their seniority. Respondent claims they were chosen on the basis
of their "merit ratings."
By calling them back, although without conferences with the Union, and even
without notification to it either that it was about to or that it had done
so, it seems to be Respondent's view that it complied with its agreement to
review the cases of those who had been unjustly omitted from the earlier
recall. This appears from Cook's cross-examination :
Q. Are you positive that the Company at any time had determined not
to take any action on this list until the Union was given an opportunity to
act on that stipulation (Constangy's proposal)?
A. Didn't we take action on it when we called them back?
Q. Yes, sir, I think you did. When did you decide to do that?
A. After the list had been checked by Mr. Farrell and Mr. Gross and I
think they felt that there were some of those that perhaps we slipped up a
little on, or where they were deserving anyway of being called back and
they were called back.
K. Did you inform the Union . . . that you felt that maybe you had
made a few mistakes and you had therefore called back the following
people ?
A. No.
Apparently the January 19 telephone call, when Davis tried and failed to
get to Cook, was the Union's final attempt in regard to the list. At least, there
is no evidence of later action in regard to it.
Respondent has set forth-by implication, at least-three claims of justifica-
tion for its conduct following presentation of the list to Farrell. (1) Cook's
testimony, already quoted, purported to advance a view that the unilateral review
of the names by Farrell and Gross and the subsequent recall of 34 was the
equivalent of the agreed action. (2) Farrell and Gross testified there was an
agreement to limit the list to 50 names. Their testimony purports to advance a
view that the exceeding of this limitation and the failure of the Union to
sign Constangy's proposal regarding the handling of the matter obviated the
need to give the list any further attention. (3) Respondent, in its brief, argues
that the list was not properly prepared in that it omitted the names of 73
employees who were not recalled and who had greater seniority than some
of those included in the list submitted. Thus, Respondent appears to say, the
Union, as the representative of all, was derelict in its duty in compiling the
list and so justified the disregard of it.
The evidence, however, is clear that none of these claims was advanced at the
time as a reason for refusal to carry through the agreement in regard to the
list. In fact, it is clear there was no refusal. There was acceptance of the list,
a promise of later action, delay, yet more delay, and, finally, inaction.
k. The claim of a new employer
Respondent's answer pleaded "that since July 1, 1947, it has been and is
now a wholly owned subsidiary of United Elastic Corporation." It went on to
set forth. as one of the claims of justification of the admitted lay-offs that they
were "a result of transfer of ownership of the Representative Company." 3s
36 At the hearing, Respondent stated that a typographical error had occurred in this
statement and asked and obtained leave to amend the date to read, July 1, 1946.
WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 851
As this claim was stated to the Union in November 1947, it was even more far
reaching. Then it implied a change in the corporate identity of the employing
company. Ryan testified, without contradiction, that at the meeting of November
6, Constangy said,
This is a new company which is just taking over, the United Elastic Com-
pany, and they feel no responsibility to these employees who used to work
for West Boylston Manufacturing Company. The United Elastic Company,
if it wants to exist and stay in business, roust make money, and so far as they
are concerned, they owe no responsibility to these former employees.
Ryan's statement of the claim was corroborated in both the proposals sub-
mitted by Constangy on November 13. In the suggestion as to the handling of
the list, the clause appears :
It being understood and agreed that persons . . . are not deemed to be
employees of the Company, but merely former employees of the Company's
predecessor and, as such, nave no inherent rights under the present agree-
ment between the Company and the Union .. .
The companion suggestion of a seniority provision to be included in the new
collective-bargaining agreement, in place of the one previously submitted by the
Union, contained the phrase :
last period of unbroken employment with the predecessor company which
operated.the plant prior to October 1, 1947.
Since the 1920's the mill has been owned and operated by West Boylston Manu-
facturing Company. There has been no change in the ownership of the property,
or in the management through which its operation as a business has been carried
on. Early in 1946, it is true, there was a change in the ownership of the shares of
stock of the Company. That was when United Elastic Corporation acquired its
interest in the mill and when West Boylston Manufacturing Company became a'
wholly owned subsidiary of the purchasing company. But that transaction was
consummated on May 26, 1946, and the Company, after it was completed, entered
into the collective bargaining agreement which was in force for the 14 months
of the mill's operation prior to the shut-down.
That a change in stock ownership, even of all the stock outstanding, does not
work a change in corporate identity need not be elaborated. First, because of
the elementary character of the proposition. And, second, because it is not
claimed that a new employer came into the West Boylston picture on May 26,
1946, when the stock purchase was consummated.
What is claimed is that when the mill stopped spinning raw cotton into tire
cord and weaving it into fabric and commenced spinning raw cotton into knitting
and weaving yarns, this change, in some way, brought into existence a new
'employer and a new employment relationship.
Here was involved no change in the fundamental character of the operations
being carried on. The raw material to be processed was the same after the
change-over as before. The bales of cotton had to be broken and mixed and the
'cotton, when it came from the opener room, had to be carded, whether the final
product was to be tire cord or knitting yarn. And, whatever was to be the
product, the carded cotton had to be spun and twisted. The evidence discloses
that the major changes in operations consisted in a reduction in the proportion
of the product that underwent "cable twisting" and in the elimination of the
final step of weaving fabric. There were, also, minor changes in the spinning
and twisting processes which, however, did not materially alter them.
877359-50-vol. 87-55
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Giving Respondent the benefit of every doubt, the most these changes in opera-
tion could do toward affecting his employment relationships would be to justify
dropping the workers engaged in cable twisting and weaving and in culling out,
on an individual basis, those spinners, ply twisters, and the like,, who proved
incapable of adaptation to even the minor changes in the spinning and twisting
processes.
To claim, as Respondent did, that such changes as these created a new em-
ployer, freed from all the obligations incurred in the past and without duty to
regard any of the rights established by practice or recognized in the prior col-
lective-bargaining agreements-not even those which Respondent had specifically
agreed, after the shut-down, to recognize when it reopened-approaches the
fantastic."
It may be regarded as bearing on the good faith with which the argument of a
new employer was advanced that Cook, Farrell, and Gross, each, when asked
how long he had been employed by Respondent answered in- terms of years,
including time before the stock purchase, time after it and before the shut-down,
and time after October 1, 1947. Evidently, it was only in dealing with the
Union and in relation to workers below the management level that a new
company was claimed to exist.
1. Cook's communications
In addition to messages sent orally by Constangy or some other intermediary
and to his remarks at the meeting of November 6, at which he personally ap-
peared, four written communications signed by Cook are in evidence.
First, is his letter to Ryan, dated June 2S, 1947,, which has already been
quoted.
Second, is the three-page, single-spaced mimeographed letter sent on January
26, 1948, to all the recalled employees. It opened by quoting a letter alleged to
have been received from an unnamed employee asking if it were necessary to join
the Union in order to hold a job in the mill. Cook's letter went on:
The answer is flatly "NO." No one will lose their job . . . for refusing
to join the Union, or for joining. Nor will you have to join the Union in
order to work here .. .
Anyone who tells you, in order to make you join the Union . . . that you
will lose your job . . . for refusing to join . . . is deliberately misleading
you and trying to scare you with a lie and is also violating the laws of the
United States .. .
Whether you join or refuse to join the Union, or whether you stay in or
get out, if you are already a member, is a question that you have the right,
by the laws of the United States, to decide for yourself .. .
We understand that some of you have also been told that the CIO Union
has some right or power to bring "pressure on the Company" in order to
get the Company to discharge you if you should get in bad with the Union
by refusing to join it, or by opposing it in someway, or for not doing what
the Union wants you to do. Some irresponsible people are even trying to
make some of you believe that, even if the Company did not want to do that,
the Union might in some way "make" the Company do it. We even under-
stand that some of the Union leaders would like to have you think that is
true.
87 See Northwest Glove Company, 74 NLRB 1697 (1946).
WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 853
THAT IS NOT TRUE. We are determined, and the Government of the
United States is determined, that that shall not and cannot happen. The
Taft-Hartley Act . . . prohibits pressure and threats by a Union and pro-
vides punishment for. Unions who attempt to put pressure on or threaten
employees. . . . That law is for your protection. It protects your right not
to join a Union or to join a Union. We will live up to the law fully and we
will assist you . . . to see that anyone else who attempts to violate your
rights is punished under the law . . .
When we began operations under the new Company, we found that the
nature of our new work was such that we would have only a limited num-
ber of jobs. We, therefore, selected the people who now work for us for those
limited number of jobs very carefully, so as to get the best possible workers.
We took into account the. past records of employees' work in the old Com-
pany. . . . There were other people whose records indicated they would
not be the best employees . . .
Whether or not you belonged to the Union . . . had nothing to do with
your being selected for employment with the new Company . . .
It is to be regretted that the CIO Textile Workers Union and the people
who. were not selected seem to be quite dissatisfied with the manner ins
which you were selected and with our decision that you and not them, or
others whom they would have preferred, have been given the jobs available.
We are sure that you will tie interested to know that, in the light of the
Union's dissatisfaction, we have carefully review. our decision ; that we are
still of the belief that we acted properly and in the best interest of the
welfare of this Company and of its employees . . .
We may have made mistakes, but we hope not . . . we hope that you,
and each of you . . . will help us prove that we did not. Don't worry
about your Union or non-Union status. That has nothing to do with it . . .
Ten days after that letter was sent the employees, Cook wrote the following :
Mr. J. E. FARRELL,
Superintendent.
The following word is to be given out to our employees.
The Company has come to the conclusion that the Union does not repre-
sent the majority of its employees, and the Company will not deal with the
Union until it is convinced that the Union represents its employees by an
election.
Farrell caused the note to be passed about among the overseers and they, in
turn, or at least some of them, exhibited it to some of the employees.
On August 2, 1948, just a week before the hearing commenced in this proceed-
ing, Cook caused to be posted on Respondent's bulletin board :
NOTICE TO EMPLOYEES. You have our assurance that, if and when any
general wage increase is made throughout the Southern Textile Industry,
it will be made effective in this plant, as has been customary in the past.
It seems that such a general wage increase is presently being contemplated.
Whether or not it had been customary for Respondent to make effective such
general wage increases, it had not been customary to post such notices. This
was the first instance.
There can be no question but that the purpose of Cook's letter of January 2G
was to cause the recalled employees to distrust the Union. Its characterization
of the union leaders as "irresponsible"; its reminder of the reemployed men
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that they had been selected by the Company and owed their recall to it, not to
the Union ; its emphasis on the Union 's dissatisfaction with the Company's
selections by which they had benefited; its silence as to the true basis of the
Union's objections to the manner in which the Company had handled the recall ;
its more than implication that the Union was seeking to deprive the recalled
employees of their jobs, on personal bases, in order that "others whom they
would have preferred" could obtain them;-these could have had no purpose
but to sow the seeds of dissension.
But whatever its purpose, no matter how real its interference between the
Union and the group of its present and potential members who were then work-
ing for Respondent, regardless of how disingenuous its phraseology, there can
be no question but that the letter, standing alone, comes within the protection
of Section 8 (c) of the Act.
There can be no question but that the letter was read in the light of the long
course of events that had preceded it-events which have been summarized
earlier in this report-and that it should be construed not as an isolated expres-
sion of opinion but as only one part of a course of conduct that commenced with
Cook's notice of June 28, 1947, of intention to terminate the collective bargaining
agreement and that culminated in Respondent's refusal on February 11, 1948, to
recognize the Union as the representative of its employees.
Were this a new question, the letter, so construed and so read, might be
held to be something other than a mere expression of opinion within the pro-
tection of Section 8 (c). So read and so construed, it might be held to contain
a covert threat of force or reprisal, a hidden but understandable suggestion of
benefit. But the question is not new. The Board, in a number of decisions
since the amendment of the Act, has appeared to look with disfavor on the
"course of conduct" theory of interpretation of publications which appear on
their face to be mere protected expressions of opinion. Cook's letter, in the
case at bar, appears to the trial examiner to be indistinguishable, as a basis for
an unfair labor practice holding, from a speech, approved as within the pro-
tection of the Act since the hearing in this proceeding.' That speech was deliv-
ered in a context of antiunion activity. It was held to be within the protection
of Section 8 (c). The Trial Examiner feels bound by that ruling.
in. Absenteeism
Ryan inferentially admitted, under questioning by Constangy, that excessive
absenteeism had been a problem at Respondent's mill for a year or two before
the shut-down. At the hearing, Respondent introduced evidence of certain
instances of this as, in some degree, justifying its selections for and omis-
sion from recall.
Two items of the evidence bear on the attendance records of the employees.
(1) Twenty-four daily attendance cards were introduced, covering the attend-
ance of that number of employees over the period from January 1, 1947, until
their lay-off in June or July. (2) The compilation of the ratings given all em-
ployees under the merit-rating system which included as one of the rated attri-
butes that of attendance.
There is no claim that any specific, named employee was dropped because
of excessive or unexcused absences. In fact, Respondent's claim of the basis of
selection for recall is that it was upon the merit-rating cards, on which attend-
ance played only a limited part. It was only one of four traits, each of impor-
38 In Atlantic Company, 79 NLRB 820, decided September 21, 1948.
WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 855
tance equal to the others. Further, according to Gross, attendance for 90
percent of available time gave a worker the rating of "G", 85 percent to 90
.percent of "F", and below 85 percent "P". Hence a worker who was absent 84
percent of the available time could not be rated lower for recall purposes than
one who was absent 16 percent, since the latter would receive a "P" which would
contribute 0.0 toward the numerical grade upon which the selection for recall
was based.
The evidence is not clear as to how these particular 24 cards happened to
be selected for presentation . Nor does it show how they compare with others,
save as that is deduced from the attendance ratings.
About half of the 24 employees were occupants of jobs which Respondent's
records list as having been discontinued . Two-thirds of them were employed in
the Spinning Department. This is of importance toward evaluation of the
cards because of the uncontradicted testimony of employees in that department
that on occasion they had been asked or ordered by their overseer to lay off
in order to spread work among the spare hands and that some of the absences
they now found marked against them were because of this. Gross testified, it
is true, that there was no company policy authorizing this practice. But he
also testified that the matter of calling spare hands to work was within the
province of the department overseers . The Spinning Department overseer was
not called as a witness . There is evidence which may indicate that this depart-
ment may have differed in its practice from the company policy. Comparison of
its attendance ratings with those of the others shows that in the Spinning De-
partment 33 percent of the workers were rated "P" in attendance . In Carding,
the next largest department and the next worst in attendance , the "P" ratings
did not exceed 15 percent . In the other departments , they were not over 10
percent.
Respondent 's records show that of the 571 employees whose jobs were not
listed as discontinued , 108 were rated "P" in attendance and 221 were rated
"G". But these records also show that these ratings were not determinative
of the selection for recall . Sixty-two , or 57 percent of those whose attendance
rating was "P" were in fact recalled . Fifty-eight , or 27 percent, of those whose
attendance gave them a "G" rating were omitted from the recall, even though
their jobs were not discontinued.
In this connection , it should be noted that of the 62 recalled in spite of poor
attendance, only 15, or 25 percent, were union members. Of the 58 not recalled
even though their attendance had been good, all but five were members of the
Union.
Throughout the time covered by the 24 cards, the union contract then in force
specifically recognized that absence without leave, except in emergency, would be
ground for lay-off or even discharge. Bad as was the record shown by some of
the cards, there is nothing in the evidence to show that Respondent ever sought
to use this power.
It is clear that at no time between Cook's notice of termination of the contract
on June 28, 1947, and the final refusal to deal with the Union on February 11, 1948,
did Respondent ever give excessive absenteeism as a reason for its attitude in any
phase of the relationship. In view of this, in view of the failure to exercise the
disciplinary power for unexcused absence recognized in the contract, and in view
of Respondent's claim that it made its selections on the basis of the four attri-
butes, the attempted justification on the ground of excessive absence, first ad-
vanced at the hearing must be regarded as an afterthought.
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It should be disregarded. If it were to be considered as a valid justification,
the disproportion between nonunion and union members with "P" ratings who
were recalled and those with "G" ratings who were not recalled would have to be
considered as evidence of illegal discrimination.
n. Seniority and employee qualifications
It will be remembered that while the 1946-1947 collective-bargaining agreement
provided that lay-offs and recalls should be made on the basis of seniority, it also
provided that this was subject to modification. As Ryan phrased the matter,
But, however, not only seniority prevailed. There was also the question
of qualifications. And the . . . employees who were retained had not only
to have seniority but they had to be qualified to do the remaining jobs.
Earlier, it has been stated that while Respondent and the Union agreed on
contract phraseology in 1946, they never agreed on what the words meant. The
cross-examination of Ryan by Constangy well brought out the differing positions
of the parties and indicated the practice under the agreement as it existed before
the shut-down.
Q. Now, Mr. Ryan, I will ask you whether or not under that clause as
between two employees whose seniority is different, one having greater and
one having less, do you go into the question of whether one is more or less
qualified than the other?
A. No, the Union has taken the position that when you get to a question
of whether a man is qualified, either a person is qualified or they are not
qualified
Q. . . . Have you ever submitted a comparison as to greater or lesser
qualifications?
A. No, sir, we have always taken the position that a person is either quali-
fied, period, or isn't.
Q. In other words, the Union is interested in whether the man can or has
done the job, not whether he can do it better than another person?
A. Yes, sir.
Q. That ultimately is the difference between the management's point of
view and the Union's point of view on that question, isn't it?
A. Yes, sir.
The ideological conflict thus portrayed led to the introduction of a great mass
of testimony. Substantially all the 145 alleged discriminatees appeared, either
in person on the stand or through stipulation, and told of the length of their
employment by Respondent and of the different jobs they had performed. They
testified to experience in their jobs, and in other positions in the industry, ranging
from 1 to 20 years. The Board has held, "Long service is in itself an indication
that an employee has performed satisfactorily." 3s
Respondent did not offer any contradiction of the claims of length or nature of
the services the employees had made. Nor did it attempt to show that the serv-
ices of any of them had failed to meet the job standards. In its compilation of
the workers' ratings it listed 55 out of the entire number who had been graded
"P" in workmanship, quantity, or both ; 10 "P" in workmanship and "F" in quan-
tity, 21 "F" in workmanship and "P" in .quantity, and 24 who received "P" in
both. But in none of the cases did Respondent offer any statement of a factual
nature showing upon what the rating was based.
89 Differential Steel Car Company , 75 NLRB 714, 716 (1948).
WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 857
In connection with this phase of the proceeding, note should be made of the
fact that the one serious objection Respondent claimed to see in the Union's sug-
gestions for a new contract was in its seniority clause. Examination shows that
it was identical with the provision in the just-expired agreement. Following
Respondent's statement of its objection, Constangy submitted a 'proposal for a
seniority clause.
His'proposal included the following: (1) All employees recalled to be regarded
as new employees on probation. (2) Probationary employees to be dischargeable
for just cause, for lack of proficiency, or for inefficiency. (3) After serving for
6 months after recall, seniority to be dated back to include service before the
change-over-that is "with the predecessor Company." (4) No employee to be
entitled by seniority to be recalled to or retained in a job for which he is not
qualified "in accordance with the standards of the Company." (5) Employees
who had been called back since October 1, 1947, to be offered new jobs or vacan-
cies, before new employees are hired. (6) Company standards for qualification
Shall be: (a) No person employed on piecework will be considered as competent
whose earnings repeatedly fall below the recognized base rate for the job; and
(b) no fixer and no person employed to furnish material to piecework operators
or to remove and/or to record production of piecework operators will be con-
sidered competent if their failure or refusal to repair or maintain machines or
to service any operation impairs the productive efficiency of any operator. By
competent is also meant an employee who has demonstrated his or her ability
to perform the work prescribed by the work standard in force.
It should be noted that Constangy suggested no change in the scope or method
of grievance procedure, in the right to resort to arbitration or in the binding
character of the arbitration awards. Except for the temporary probation and
the preferred position in which it placed the employees whom Respondent had
already unilaterally recalled, it may be questioned how greatly the operation in
practice of Respondent's proposals would have differed from that under the prior
agreement.
Respondent's proposal was never discussed. On November 29, Ryan wrote
Constangy acknowledging receipt and saying that he had not had time to study it.
The Union never, in terms, rejected Respondent's proposal and did not submit
any counterproposal. In this connection Ryan's uncontradicted testimony should
be remembered to the effect that an ugderstanding had been reached to postpone
further negotiations of a new contract until after the list of unjustly treated
employees was out of the way. The Union's attempts to get action on that list
continued until the date when the Company took the view that the Union no
longer represented a majority of the employees and, for that reason, openly
refused to deal with it.
o. The discharge of Willie Missildine40
Missildine was one of Respondent's maintenance electricians from October
1942 until the shut-down in July 1947. Throughout this period, he apparently
did the work customarily done by maintenance electricians in mills such as
Respondent's. This, however, is subject to the qualification that he was under
40 All the unfair labor practices alleged in the complaint, except the discharge of Mis-
sildine, appear to be causally interconnected. Even though General Counsel and the Union
urge such an interconnection in the case of this discharge, it does not so appear to the
Trial Examiner and is thus treated separately, even though it occurred chronologically
within the period of the acts hereinabove considered.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
instructions to call his superior if anything of a serious nature arose and not to
proceed without supervision.
That he did his work acceptably seems beyond question. Norman, his super-
visor, rated him "F" in workmanship and "G" in the other three traits. And of
the three electricians employed before the shut-down, he was one of two-and the
first of them-to be recalled by the personnel office when the mill reopened.
Missildine was a member of the Union, a fact which the check-off made known
to Respondent. There is no evidence to indicate that he was ever active in union
affairs. So far as the record shows, his union activity was limited to mere
membership.
His reemployment, after the change-over, commenced September 24, 1947.
Norman testified that when Missildine came back to work he told him the work,
would be different and would require greater competence than before ; that if his
work proved satisfactory he could have the job permanently ; but that if he
failed, he would be let go. Missildine denied that Norman made these state-
ments. He admitted, however, that the job differed from what it was before and
apparently agreed that it required a higher degree of competence.
November 24, 1947, Norman told Missildine his services were no longer needed.
Thereafter, Respondent retained as the sole maintenance electrician one Henley,
who had been recalled a week after Missildine and who had about a month's less
seniority. Henley also was a union member, was shown to be such by the check-
off, and is not shown to have taken any part in union activities, beyond mere
membership, either before or after the change-over. Up to the time of the hear-
ing, no other electrician had been hired in the mill. Norman gave high praise
to Henley's work.
The complaint alleged that Respondent discharged Missildine because he joined
or assisted the Union or because he engaged in collective activity.
In support of this allegation, Missildine testified to three occurrences. (1)
About 3 or 4 days after his return to work, he remarked, in conversation with
another worker, that nonrecalled electrician Cecil Young had not been treated
right. Immediately thereafter, Jimmie Farrell, the son of the plant superin-
tendent, who had been only a few feet away while Missildine was talking, went
into Norman's office. (2) A few days after this event, a conversation took place
between Missildine and Tommy Helms, in the course of which the latter said,
"I don't see why they didn't call Marvin pickey before they did me." He had
more seniority." Missildine responded, "You know why, don't you? You know,.
he is one of the Union's committee, one of the shop stewards." Immediately
after making this rejoinder, Missildine discovered that Norman was only a few.
feet away, clearly within hearing distance. (3) Four or five days after this.
conversation with Helms, Missildine said, in the course of. a talk with his fellow,
electrician, Henley, referring again to nonrecalled electrician Cecil Young, "They
didn't do Cecil right." Again Missildine discovered that Norman was within
earshot.
Missildine did not fix the date of any of these remarks with exactness. Appar-
ently, from all of his testimony, they occurred in the first weeks of his reemploy-
ment. Thus, the latest of them must have been at least a month or 6 weeks before
his severance.
Norman was not asked about the Missildine conversations and no. attempt was
made to contradict the testimony in regard to them.
*} In the record Helms is referred to as Hellums and Dickey as Dick.
WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 859
Norman testified that he let Missildine go because his work was unsatisfactory.
He told of a number of specific instances. (1) In installing magnetic switches
on Abbott Winders, he got mixed up in drilling the iron supports and had to drill
them over again in order to place them all at the same elevation. (2) In wiring
a thermal protective device where the wiring had to be put in conduit, he made
so many bends in the conduit that it looked too bad to be tolerated. It was nec-
essary to take it down and do the job over. (3) In installing a base plug-for
use by a Coca Cola vending machine-he ran 220 volts into it instead of 110,
whereby the machine was burned out. (4) When ordered to make a voltmeter
check of transformers, he erroneously used an ammeter and burned it out. (5)
He made such mistakes in the wiring of twister frames that the work had to be
done over. Norman did not fix exactly the date of any of these errors. It is
apparent that they were later in time than the conversations concerning which
Missildine testified. And it is apparent that the two latest occurred in the final
week or 10 days before Missildine's severance.
Missildine admitted that there had been some trouble in connection with the
placement of the switches on the Abbott Winders. He admitted, too, that he
had run 220 volts and not 110 into the base plug. He justified himself, however,
for both of these contretemps by claiming the errors were not his but Norman's
for giving him faulty instructions. The other charges of bad workmanship, he
flatly denied.
The General Counsel had urged that Norman should be disbelieved and that
full credit should be given to Missildine because "of the innate and simple honesty
of the man." 42 The problem is not as simple as that. Even if it be assumed
that Missildine testified with the most complete integrity, so far as he remem-
bered matters ; even if it be granted that his uncontradicted evidence is all true
and correct ; even if it be taken that where he and Norman disagreed he is cor-
rect-and the Trial Examiner does not make all these assumptions-still there are
unexplained matters which give rise to doubt as to Missildine's competence as an
electrician. After all, simple honesty is not a satisfactory insulation against the
force of electricity. Two hundred and twenty volts where but 110 should be, can
kill a man, set fire to a building, or burn out a motor. On Missildine's own
evidence, it is clear that Respondent was justified in doubts he was capable of
performing the duties of the job. On Norman's story of Missildine's record on
the job after the recall-which the Trial Examiner, in the main, believes-there
can be no question that there was good ground for doubt. As against this, in
in order to support the General Counsel's theory it is necessary to believe that
Norman, or one of Respondent's higher officials, took Missildine's extremely
mild criticisms so greatly to heart that he brooded over them for a month or 6
weeks and then acted.
Respondent's account of the Missildine discharge seems much the more credible
of.the two. There is a failure to sustain the burden of proof that the discharge,
had a discriminatory motivation.
p. Summaries and conclusions
The foregoing discussion, like the evidence and the arguments of counsel, has
gone far afield from the issues raised by the complaint and answer. It may be
well to narrow the case to them.
'$ The Poet Laureate said this much more euphoniously :
Kind hearts are more than coronets,
And simple faith than Norman blood.
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) The appropriate unit:
Although on the pleadings it would appear that there is some dispute concerning
the appropriate unit in the case at bar, that issue was resolved at the hearing by
agreement between the parties. It is found that the appropriate unit here con-
sists of all production and maintenance workers other than seasonal village
clean-up workers, excluding office and clerical employees, guards, and super-
visory employees as defined in the National Labor Relations Act, as amended.
(2) The refusal to bargain in violation of Section 8 (a) 5
(i) The original failure to bargain in regard to a union contract
On June 28, 1947, Cook wrote the Union notifying of Respondent's intention to
terminate the then existing collective-bargaining agreement on its expiration,
August 1, and stating a willingness to discuss the terms of a new contract "as
soon as we have been able to ascertain exactly what our status will be under the
changeover." It has been found that by September 15, 1947, Respondent knew
definitely what the weekly production requirements would be and the number of
employees that would be needed. . It did not notify the Union of this. Two weeks
later Respondent recalled the employees it had unilaterally selected, on a basis
other than seniority, from among those who were working before the shut-down.
In the interim between Cook's letter and the date when he admittedly knew
what the status would be, his office received a letter and a telephone call from
the Union requesting the opening of contract negotiations. The letter was never
answered. The telephone call brought forth a reference of the matter to Con-
stangy. Thereafter, in that interim, repeated requests were made of Constangy
that negotiations be commenced. They led to his letter of August 12, 1947:
It will be approximately November 1st before we will be able to reopen the
plant. . . . As I have indicated to you, the Company is prepared to advise
you sufficiently far in advance of the time that we are, certain that we will
begin operations of our intention of reopening, in order that at that time
we may sit down together, confer and negotiate on the terms and conditions
of the new agreement.
Respondent did not abide by its word thus given. It reopened the mill a
month earlier than the date it had given, without prior notice and without op-
portunity for negotiations in advance of the reopening.
On October 10, 1947, immediately after the Union learned that the mill had
reopened, it mailed Respondent its proposal of a new agreement. Constangy
answered, in complete contradiction of Cook's promise of June 28 and of his own
letter of August 12.
I have made it clear to you that we would not be in a position to negotiate
a complete contract until we have had some experience in operation under
the new system and the plant is somewhat manned.
I definitely will not be in a position to discuss your proposals, or
anything like them, on Tuesday . . .
No meeting occurred until November 6. Then it was agreed to postpone nego-
tiations until after the problems had been delimited by the compilation and dis-
posal of the list of nonrecalled employees who desired reinstatement. The
Union compiled the list and submitted it to Respondent's superintendent, Farrell.
In violation of the agreement, he did not meet with the Union concerning it. He
postponed action and gave excuses for delay. Thus he thwarted, for almost 2
months, the commencement of contract negotiations.
WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 861
In the period while the list was being compiled, Respondent submitted a coun-
terproposal to be substituted for the Union's suggested seniority provision. In
submitting it, Constangy wrote :
Enclosed is my revision of the seniority clause, which I am certain is the
least the Company will take.
He did not request discussion of its terms or in any way intimate that modifica-
tion would even be considered.
He knew that his proposal was one the Union would not and could not accept.
It was based upon the unacceptable and untenable proposition that a new
employer had come into the picture and that all the rights, obligations, and
expectations based upon the practices of the past, were nonexistent, save as
Respondent, as a matter of grace, should deign to recognize them. It provided
that all employees recalled would enter with the status of probationers ; that
at the end of the probationary period, their seniorities would date back to the
time of recall, after October 1, 1947; and that only after 6 months' employment,
after that date, would they be credited with seniority for service before the
shut-down. In operation, this would have ratified all Respondent's selections
for and omissions from recall. It would have compelled the Union to waive all
its objections to Respondent's past failure to observe seniority principles.
It is impossible to believe this proposal was submitted in good faith in a real
attempt to reach an agreement. Respondent's counterproposal on seniority
must be regarded as made with tongue in cheek, not as a true attempt to bargain.
No further moves toward a new contract were made by either party until
February 3, 1948, when the Union requested that negotiations be recommenced.
Then the Respondent claimed that the Union no longer represented a majority.
On this record it must be held that Respondent refused to bargain concerning
a new collective bargaining agreement.
(ii) The refusal to bargain regarding an interim agreement.
In July 1947, it became apparent that a contract could not be completed
before the former one expired on August 1. This was not due to any fault on
the part of the Union. Commencing immediately upon its receipt of the notice
of termination, it sought to open negotiations.. It was successful in this
because of delays and postponements by Respondent. July 18 Constangy stated
that before August 1 the Company would either renew the existing contract
or sign an interim agreement extending it until a new contract could be com-
pleted. In spite of this promise, nothing was done by July 30. On that date
the Union made another request for an extension of the existing agreement.
Constangy said that he did not have authority to agree to it but that he would
recommend it to Cook. He said also that due to the fact that Cook was then
out of town, it might be necessary to go for a few days without an agreement.
The next day, Constangy told Ryan that he had talked to Cook by long distance
telephone and that he seemed to regard favorably the proposal to extend the
contract.
On August 7, 6 days after the old agreement had expired, Respondent refused
to extend or renew the agreement. This is of particular importance in this
proceeding for-as Respondent then knew but kept hidden from the Union-
it was about to make its selections for recall.. There can be no doubt, in the
light of the record, but that the failure to make an interim agreement was
deliberate on Respondent's part as an element of a plan to obtain freedom
from the contract requirement that recall be made according to seniority.
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clearly, by delay, inaction, and finally by flat refusal, there was, on Respond-
ent's part, a refusal to bargain in regard to an interim agreement.
(iii) The failure to bargain in regard to severance
In July 1947, Respondent sent severance notices to the employees, terminating
some and laying off others. The selections for termination or lay-off were not
in accordance with seniority or in accordance with the provisions of the then
existing collective bargaining agreement. When the Union went to Gross in
regard to this, he assured that "terminate" did not mean permanent severance.
When it then went to Constangy, he said there was nothing to worry about,
that the Company would recognize seniority as before and that the provisions
of the contract would prevail. He followed this by his letter of July 24 in
which he said,
We, of course, recognize that there are people on the second and third
shifts with greater 'seniority who will be able to bid out or bump some of
the people who are presently on the first shift.
In spite of these assurances, the selections for recall were not made on the
basis of seniority but by Respondent's unilateral choice. The decision to aban-
don seniority was made within a week or two after Constangy's letter of assur-
ance but no notice of the change in plan was given the Union. It did not learn
of it until the notices of recall were received by the selectees about the 1st of
October, 1947.
On October 16, the Union wrote to request a conference in regard to the recall
and seniority. On October 21, Respondent wrote the nonrecalled employees
informing them that their status must be changed, effective immediately, to
"that of termination." The next day, after that was done, Respondent answered
the Union's request and agreed to a conference to be held November 6.
At that meeting, Respondent took the view that the employees who had not
been recalled were "through"; that they were without rights in the matter ;
that they were mere former employees of a predecessor employer.
One can refuse to bargain other than by a flat refusal to confer. It is as
effective to.assure a union that there is nothing to worry about, that its rights
will be recognized, that its desires will be fulfilled, and, when the time comes
for action to disregard the assurances. It must be held that Respondent refused
to negotiate in regard to the severance notices and the fact of severance.
(iv) The failure to bargain in regard to omissions from recall
At the November 6 meeting, Cook suggested that a review might be possible of
,the cases of the employees omitted from recall who believed they had been un-
justly treated and who desired reemployment by the Company. The Union
started immediately to interview the omitted employees and to compile a list
of those desirous of recall, together with the employment data concerning them.
While it was doing this, Constangy prepared and submitted a proposal 'of ma-
chinery for handling the matter. This accompanied his suggested seniority pro-
posal, referred to above. This, also, was based on the proposition that there was
a new employer, that the employees were without right in the matter, and that
any benefit they might receive would depend upon Respondent's whim. It could
not have been believed that the Union would accept the proposal. The Union
went ahead and completed the list. It was presented to Farrell by December S.
He accepted it but never met with the Union's representatives concerning it. He
repeatedly was asked for action and repeatedly insisted on postponement and
delay. He gave the Union the excuse that he had to have time to study the mat-
ter. But, when on the stand, he admitted that he had had available all the
WEST BOYLST'ON MANUFACTURING COMPANY OF ALABAMA 863
data he needed and that he could have acted immediately. Further, according
to Cook, he did study the list and used it unilaterally, as a basis of recall of 34
named on it when the second shift was reestablished. That this second shift was
to be created was hidden from the Union. Cook and Gross both had stated there
was no possibility of it in the foreseeable future. The recalls to it, of more than
were included in the list, were made during the period Farrell was refusing to
meet with the Union. By this inaction, delay, and postponement, Respondent
effectively refused to bargain in regard to the list of nonrecalled employees.
(v) The final failure to bargain regarding a Union contract
On February 3, 1948, the Union again requested that Respondent meet with
it and commence negotiations for a new collective bargaining agreement. In
answer to this, on February 11, Constangy wrote :
... the Company respectfully declines to recognize the Textile Workers
Union of America, CIO, as the collective bargaining agent for its em-
ployees . . .
The Company entertains serious doubts that your Union does represent
its employees, particularly in the light of the fact that you and other,
representatives of your Union have, for several months, continuously sought
to deprive the employees of this Company of their employment, and to have
them replaced in the employ of the Company by other persons who are not
presently employees of this Company. It is obvious to the Company that
the interests of your Union are contrary to the interests of its employees and
that it does not actually represent its employees, or their interests.
. . . it would not be proper for us to meet with or bargain with you or
other representatives of your organization.
Prior to the shut-down, Respondent's records show, almost 80 percent of the
employees were union members. Against the charge of antiunion discrimination
in the recall, Respondent sought to show it had selected members and nonmembers
in about the same proportions as before. The records it submitted show that
of those recalled 73 percent were, or at least had been at the time of the check-off,
union adherents.
The record contains no word of evidence to support the claim that the 5 months
between the recall and Constangy's letter saw such a change of heart among
the employees as to transform this overwhelming union majority into a minority.
It may be doubted, in the absence of evidence, that such a change actually
curred. But if it be assumed that it (lid, what brought it about? Respondent
says the cause lies in the Union's misrepresentation of the employees. Not so.
If, in fact, there was such a change, it was brought about by Respondent's series
of refusals to bargain-in regard to the interim extension of the agreement; in
regard to the July 1947 severance notices ; in regard to the selections for recall ;
in regard to the list of omitted employees ; and in regard to a new contract. It
was brought about by Respondent's deliberate abandonment of seniority as the
basis for recall-in violation of its pledged word-and the consequent reemploy-
ment of men with lesser seniority, thus driving a wedge between them and the
Union which was committed to seniority principles. It was brought about by
Respondent's series of acts, to be summarized hereinafter, which Ryan, in his
testimony, aptly described by the phrase "the campaign to demoralize the Union."
The evidence is clear as to what Respondent did. It is equally clear that
these acts were motivated by hostility to the Union and were committed with the
intent and purpose to weaken and destroy it.
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The law is settled. An employer cannot by his own wrongful acts bring about
a loss of union majority and use that loss as a justification of a refusal to
bargain.43
On the record it is clear beyond question that from and after June-28, 1947,
Respondent has refused to bargain with the Union, in violation of Section 8 (a)
i of the Act.
(3) Interference, restraint, and corecion
No argument is needed in support of the proposition that a refusal to bargain
in violation of Section 8 (a) 5 is, in and of itself, an interference with the guaran-
teed rights of employees and, hence, a violation of Section 8 (a) 1. Especially is
that true where, as here, the refusal to bargain is not one single act but a long
series of acts extending over a period of months and including many different
phases of the employer-employee relationship. The foregoing discussion of the
refusals to bargain is sufficient to show that it must be found Respondent inter-
fered with, restrained, and coerced the employees in the exercise of their right
to self-organization guaranteed by Section 7 of the Act.
But that discussion does not cover all the elements of forbidden interference
above found. Commencing in June 1947, with Cook's notice of intention to ter-
minate the union contract and continuing until the latter part of January 1948,
just before Respondent openly refused to deal with the Union, alleging that it
no longer represented the employees, Respondent carried through a course of
,Conduct destructive of the Union's prestige and reputation among the workers
for effectiveness and of the union officers' credit for reliability.
The separate acts which combined to create this course of conduct have all
been portrayed earlier in this report and need not again be described in detail.
Here it is only necessary to refer to them. The acts compose a pattern six
times repeated.
in June, July, and August, 1947, Respondent promised, through Cook and Con-
stangy, that it would negotiate for a new contract. These assurances were given
the union leaders that they might be passed on to the rank and file of union mem-
bers. After this was done, Respondent reopened the mill without giving an
opportunity to negotiate.
In July 1947, Respondent's severance notices raised a great turmoil. Respond-
ent, through Gross and Constangy, assured the Union's officers that the forms
adopted contained nothing sinister, that the seniority would be followed, and that
the contract would prevail. After the trouble was ended by the passing on of
these assurances, Respondent terminated workers' employment without, regard
to seniority.
Respondent, acting through Constangy, wrote Ryan on July 24, 1947, that
employees would be able to exercise seniority and that Lien with greater seniority
would be able to bid out or bump men with less. The very purpose of the letter was
to permit assurance to be given the entire union membership. Even while this
was being done, Respondent adopted a method of selection which ignored
seniority.
Throughout July 1947, Respondent again and again assured the union leaders
that if a new contract was not completed before the old one expired, an interim
extension would be granted. The union membership was told of these assurances
in order to quiet the unease which the announced indefinite shut-down and the
approaching contract termination combined to create. Six clays after the contract
expired, Respondent stated that it would agree to no extension.
4 Frank Brothers Company v . N. L. R. B., 321 U. S. 702, 705; Continental OR Com-
pany V. N. L. R. B., 113 F. 2d 473, 480-481 (C. A. 10).
WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 865
On August 7, 1947, Respondent, acting through Constangy, volunteered to
Ryan that he could tell the employees not to worry about evictions from houses
in the mill village, even if they were unable to pay the rent while the mill was
closed. Almost immediately after Ryan passed this assurance on to the workers,
a few eviction notices were served. In response to protests, further promises
were made that this would not recur. And again, just after the word was
publicized in order to calm the newly aroused fears of the employee-tenants,
a number of further eviction notices were served.
At the meeting of November 6, 1947, Respondent agreed to review the cases
of the nonrecalled employees who desired reemployment. The Union inter-
viewed all the omitted employees as a means of determining which desired to
come back and what their work records were. Then, when the list was presented,
Respondent failed to meet with the Union about it. Respondent delayed and post-
poned action while it recalled others to the newly established second shift-the
very fact of which it had kept secret from the Union.
Thus, six times in as many different matters, Respondent caused the assurances
given by the union officers to the members to be proved false.
Had this occurred but once, or even twice, it might be possible to credit it to
inadvertence, or at the worst, to negligence. But repeated six times, over as
many months, and in as many phases of the employment relationship, it is im-
possible to find other than that it was a deliberate course of conduct, motivated
by hostility to the Union and intended to destroy the confidence of union mem-
bers in the organization and its officers.
One would hesitate to base a finding of deliberate attempt to mislead solely upon
a mere single inference, even so strong a one as is created by six repetitions,
were it not bolstered by other facts of record.
Here, it has unquestionable support. It is buttressed by the undisputed
and indisputable fact that Respondent adopted inconsistent positions and changed
its attitude, to its own advantage and to the detriment of the Union, without
notice to it. On June 28 and again on August 12, Respondent promised, in writing,
to negotiate as soon as it knew its status and before the mill reopened. In
October, a month earlier than it had told the Union, it reopened without notice
.and wrote that it would not bargain until the mill was remanned. By the time
the manning of the second shift was completed, Respondent took the view the
Union no longer represented the employees.
The finding is further buttressed by the fact that in July 1947, five of Respond-
ent's supervisors made statements that after the reopening there would be no
seniority, no contract, no Union. Had it been only one, the remark might be dis-
regarded. But it is incredible that five would have spoken to identical effect
had not some emanation from Respondent's top management purported to war-
-rant it. It is of interest to notice the dates of these statements in comparison
with those of some of Respondent's assurances to the Union. Strickland and
Fisher made their remarks in the early part of July, about a week apart but
both between the date of Cook's letter, promising to negotiate as soon as Respond-
ent knew its status, and Legare Davis' promises of July 15, made on Con-
stangy's behalf, that negotiations would begin in a few days. Tisdale's state-
ment of July 19 and Norman's of the 22nd came between Constangy's promise
of July 18 that recall would be according to seniority, that the provisions of
the contract would prevail, and that the Union had nothing to worry about, and
his confirmatory letter of July 24. Beard's statement was not dated more closely
than "sometime in July, 1947."
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint charges that Respondent interfered with, restrained, and
coerced the employees in the exercise of rights guaranteed by the Act, through
Cook, Strickland, Fisher, Beard, and Tisdale, by statements discouraging union
activity and membership, by interrogating employees concerning union affairs
and activities, and by urging employees to withdraw from the Union for their
own benefit.
There is a complete absence of evidence of interrogation of employees. There
is no evidence of promise of self-benefit through abandonment of the Uinon,
except as such a promise might be inferred by construing Cook's letter of Janu-
ary 26, 1948, together with Respondent's preceding course of conduct to contain
more than its mere words directly state. As has been stated, that inference
seems barred by controlling Board decisions. There is uncontradicted evidence
of statements by all the others named which show that they personally did not
like the Union and that they believed Respondent was going to oust it from the
mill. But none of the remarks seem inherently coercive. Nor is there a sufficient
evidence of context to afford a basis of construction giving them a stronger im-
plication.
There is a failure to sustain the burden of proof that Respondent by the state-
ments of Cook, Strickland, Fisher, Beard, and Tisdale, interfered with, re-
strained, or coerced the employees. That allegation of the complaint should be
dismissed.
All the statements listed in an earlier section of this report as found to have
been made, except the five made in July 1947, and referred to immediately above,
are wholly disregarded. Those five are omitted from consideration save for
the purpose and to the extent immediately above set forth.
(4) Discrimination in respect to discharge and rehire
Immediately prior to the changeover, Respondent had about 730 production
and maintenance employees. June 1, it discontinued the third shift and in-
definitely laid off the approximately 90 persons who composed it. In July, as the
stock ran out, it indefinitely laid off or terminated the workers on the second
and first shifts. All production ceased and the mill was completely closed
July 26, 1947.
There can be no doubt but that the shut-down and indefinite lay-off were
based upon valid economic justifications. The loss of the contract and cessation
to manufacture tire cord furnished a complete warrant.
When the mill reopened in early October 1947, at the outset with 199 produc-
tion and maintenance employees and when the second shift was reestablished
in January-February 1948, with a total of slightly over 350, there is no question
but that Respondent hired the number needed to fulfill its production require-
ments in the manufacture of knitting and weaving yarns. The reduction in
number, in and of itself, cannot serve as a base upon which to predicate a charge
of discrimination.
Nor can there be doubt of the bona fides of Respondent's discontinuance of its
Weaving Department and the jobs involved in the manufacture of fabric from
tire cord. This came as part of the change in process the change in product
entailed. Unquestionably, Respondent was in the proper exercise of its manage-
ment prerogative and exercised it in good faith when it decreased the force
engaged in the cable twisting process and discontinued certain of the jobs it had
maintained. And, also, there can be no hesitancy in pronouncing as validly
justified the discontinuance of the jobs held by the former sweepers and cleaners
and the transfer of their functions to the newly created classification of sweepers
and oilers.
WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 867
But this does not completely answer the charge of discrimination in the lay-off
and termination, or in the job discontinuances, and does not touch upon that in
the selections for recall or the general omissions to rehire.
The union contract in effect in July 1947 required Respondent to apply
seniority in lay-offs and to deal with the Union in all matters pertaining to
conditions of employment. It provided that the published seniority rosters
should be binding on all parties, that infringement of seniority rights should be
processed as grievances and be arbitrable with final decision of binding effect.
All these Respondent violated by its unilateral decision and subsequent action
in July 1947 to lay off the members of the first shift and to terminate the others,
without regard to seniority.
Clearly, that decision and action constituted a grievance, processible under
the contract. No proceeding was instituted because Respondent assured that,
in spite of the wording of the various notices, when the mill reopened the
employees would be recalled in accordance with the existing seniority provisions.
The mill remained closed until after the expiration date of the collective
bargaining agreement. When, after that date, the Union complained about the
failure to grant an extension, Respondent repeated its promise to call back the
workers in the order of seniority.
It did not do so. From Cook's testimony, the conclusion is inescapable that
the refusal to negotiate an interim extension or to bargain about a new agree-
ment were for the deliberate purpose of avoiding the Union's known intention
of insisting upon customary seniority principles.
Respondent specifically admitted that it paid no attention to seniority. From
among those laid off or terminated it unilaterally selected the number of em-
ployees it needed, wholly without regard to their respective positions on the
seniority rosters or to their length of service before the shut-down.
Respondent claims it did this solely for the purpose of obtaining the most
efficient employees and that it sought to accomplish this end by recalling those
with the highest grades on their merit-rating cards. It is apparent, however,
that there were no such grades in existence at the time. The rating and the
selection for recall were simultaneous. Hence, it is clear that the grades were
not a basis for reliance but must be regarded only as an attempted justification
of the individual selections made. At the most, they only show how someone in
Respondent's management claims subjectively to have evaluated each employee
in regard to four indefinitely defined qualities of workmanship, attitude, quantity,
and attendance. There is no evidence of the standard by which any of the first
three were measured. There is no evidence regarding the past performance of
any employee in relation to any.standard or in comparison with other employees.
There is clear evidence that the rating system both could have been and may have
been so applied as to cause low grades to result from proper union activities,
from the exercise of rights guaranteed by the Act. And there is the direct
admission that ratings were changeable, upward or downward, on the judgment
or at the whim of the superintendent or the personnel director, and that some,
in fact, were changed. There is, further, the undisputed fact that not only the
grades but also the fact that they were being given were kept secret from the
employees, thus denying all opportunity to appeal.
It is impossible to believe that the selections for recall were actually based
on the merit-rating system, or that it is, or was, or was believed by Respondent
to be either a measurement or reflection of the employees' respective, comparative
efficiency.
877359-50-vol. 87-56
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Further, it must be held that Respondent was in error in its belief that it was
free, merely because the expiration date of the union contract has passed, by
unilateral action to disregard established seniority rights and act in derogation
of them. Here, this belief was wrong for at least three reasons.
First. Respondent repeatedly stated an intention and purpose to apply seniority
according to the contract ; stated that the "termination" notices did not mean
what they purported to say ; assured the Union that it had nothing to worry about
since, if a new contract was not agreed upon, the old one would be extended.
It made these statements and assurances with the purpose of inducing the Union
to forego actions which it then had legal right to take. Respondent concealed
from the Union its plan to recall on a basis other than seniority. It gave the
Union a later date as the estimate for reopening, stating it would give ample
notice and negotiate before the fact occurred. Then, it reopened the mill at an
earlier date, without notice and without prior negotiations. It remanned the
plant with the employees it unilaterally selected, without conference with the
Union and without regard to seniority.
The evidence contains every element required to create an estoppel in pais.4
As against the Union, Respondent must be held estopped to deny the continuing
existence of the seniority provisions of the 1946-1947 collective bargaining agree-
ment through the period from August 1 until the remanning of the mill is
completed.
Second. Although seniority rights-as legally recognized claims to preference,
in distinction from mere emotional reactions which attach to long service-do
not arise apart from statute or contract, it does not follow, as Respondent be-
lieves, that they wholly disappear upon the mere expiration of the contract which
created them.
Seniority rights are rights which by their nature endure as long as the
employment does and become more and more valuable in protecting that
employment and enhancing its benefits. Ordinarily, one of their most im-
portant functions is to give a measure of security to the job. To have
seniority rights for a year may not be an impossibility, but it is almost a
contradiction in terms."
It is settled that seniority rights do not vest, in the sense that they may not be
modified, even to the detriment of individual holders, when the collective-bar-
gaining representative agrees to the modification in fulfillment of its duty as
trustee and representative of the entire unit for which it acts. But there is no
authority to support Respondent's doctrine that an employer by mere delay to
negotiate or extend an agreement can destroy seniority rights created and recog-
nized as customary by both employers and employees. Were that theory to be
upheld, an employer could nullify seniority rights, no matter how well established
and how long they had been relied on by the workers at the end of each contract
period. A question of their modification would no longer be a true subject of
bargaining. The employer by a day's delay after the contract expiration could
automatically end seniority and force the union to accept only what he was willing
to give, under penalty of forfeiture of any right until agreement was acceded
to his terms.
" See 19 Am. Juris. pp. 640-667, and cases therein cited.
45 The quotation is from the dissenting opinion by Jackson, J., in Trailmobile Company v.
Whirls, 331 U. S. 40 (1947) ; see also, Primakow v. Railway Express Agency, Inc., 56
F. Supp. 413 (1943).
WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 869
Third. Even if the contract. were held to have expired on August 1, its ex-
piration did not end either the Union's representation of the employees or
Respondent's statutory duty to take no action affecting them motivated by union
hostility. On the facts disclosed by the record, it is apparent that Respondent's
refusal to follow seniority and its action in secretly and unilaterally selecting
employees for rehire were to create a situation in which (a) the recalled em-
ployees would owe their jobs not at all to the Union but solely to Respondent;
by which the Union, by insisting on customary seniority, would be forced into
the position-at least ostensibly-of opposing the interest of its own employed
members; and (b) in which, through an election at which only those whom the
Company had recalled and whom the Union apparently had opposed would be
entitled to vote, it would be probable the Union could be defeated and organiza-
tion of the workers destroyed.
The disregard of customary seniority by Respondent was only one step in a
scheme to defeat the rights which the Act guaranteed to employees. It was an
integral part of a planned interference with the employees' exercise of their
right to organize and be represented by a representative of their own choosing.
It must be held that the violation of the repeated promise to select men for
recall according to seniority and pursuant to the provisions of the contract, the
unilateral selection by Respondent of workers on another basis, unilaterally
determined upon and administered, the refusal to rehire workers with greater
seniority, and the failure to give the omitted persons, or the Union as their rep-
resentative, an opportunity to invoke the established grievance procedure, united
to constitute discrimination in regard to hire or tenure of employment for union
membership and activity, in violation of Section 8 (a) 3 of the Act.
This holding does not depend upon a showing of disproportion of union mem-
bers among those recalled. It rests, as stated, upon the fact that the method of
selection adopted by Respondent was picked in an attempt to destroy the Union
and was administered by Respondent to that end.
In fact, before the shut-down the union membership constituted 78 percent
of the production and maintenance personnel. After the reopening it still con-
stituted 73 percent of the recalled employees. It is not believed so small a
reduction of the Union's proportion is sufficient to be regarded as evidence of
discrimination.' Under some circumstances, the fact of a closely proportionate
recall night be regarded as evidence negativing the absence of a discriminatory
intent. That is not true in the case at bar. Here, Respondent had to recall
not employees generally but workers in specific job classifications. In 18 of
those in which it rehired workers at the very reopening, every person belonged to
the Union. In many more, the nonmember workers were not sufficient in num-
ber to fill Respondent's production needs.
It seems clear that Respondent did not attempt to destroy the Union by the
method of omitting to rehire rank and file union members. On the known facts,
it must have been apparent this could not be done if production demands were to
be met.
A different picture is presented when one looks at the record in regard to those
employees who were known by Respondent to have been active in union leader-
ship. Of 36, only 10 were recalled. It seems certain that the omission to recall
the others, or at least a majority of them, was motivated.by a desire to deprive
the Union of leadership and was committed in an attempt to effectuate that
purpose.
' Northwest Glove Company , 74 NLRB 1697 (1947).
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is not necessary to make a specific finding on the point. The entire recall
scheme was, as has been said, an integral part of a planned antiunion course of
action. It must be held discriminatory without regard to what individuals
happened to be recalled or omitted from rehire. The scheme was (1) to refuse
to extend the old contract or negotiate a new one, by delaying to bargain until
after the mill reopened and was remanned ; (2) to take advantage of the freedom
of action the absence of a contract, thus caused, was believed to provide and,
unilaterally, to select and apply a method of recall other than that of the contract
and known to be opposed by the Union; (3) to weaken the confidence of the
Union's 'membership generally in its leaders by causing repeated demonstrations
of their apparent inability to obtain results and of apparent unreliability of their
assurances ; (4) to force the Union into the position that by not waiving its ob-
jections to the recall method adopted by Respondent and its results, it would
appear in opposition to the interests of the rehired employees and thus to
alienate them from the Union; and (5) when the picture was complete, to refuse
recognition on the ground that the Union no longer represented the employees
and, therefore, to seek decertification. It can make little difference whether to
this there should be added a further step-that Respondent, in order to attain its
end, omitted to rehire the great majority of those who had evidenced ability to
lead in union activity, either to serve as a tacit warning to others that strong
union adherence might be economically detrimental, or to paint in stronger colors
the picture that the Union's continued efforts to obtain recognition of seniority
was a movement by outsiders seeking to deprive the reemployed workers of their
jobs.
The evidence is not sufficient to show with precision and clarity which indi-
viduals should have been recalled first, which later as more jobs were reopened,
and which were properly omitted from rehire. Respondent has called attention
to the fact that 73 were omitted from. recall but are not named in the charge
or complaint although they have greater seniority than some of those included.
The evidence is unsatisfactory on the subject of individual °qualifications, or
lack of them, to perform certain of the jobs after the reopening. The record
is insufficient in some cases of alleged job discontinuance to show whether the
job truly was discontinued or the term was used merely to give an apparent
justification to an individual discontinuance of employment.
Upon the record, none of these doubts can be resolved. That fact does not
seem of importance to the decision except as it must affect the remedial steps
to be taken.
Upon the record as a whole, it must be held that Respondent discriminated
among its employees as to hire and tenure of employment for union membership
and activity, in violation of Section $ (a) 3 of the Act.
As stated earlier in this report, the evidence is insufficient to support a finding
that Respondent discharged Willie Missildine for union membership or activity.
The allegations of the complaint in regard to his discharge should be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring
in connection with the operations of the Respondent described in Section I,
above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States, and such of them as have been found to
constitute unfair labor practices tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 871
V. THE REMEDY
Having found that the Respondent has engaged in and is engaging in unfair
labor practices affecting commerce, it will be recommended that it cease and
desist therefrom and take certain affirmative action which the Trial Examiner
finds is necessary to effectuate the policies of the Act.
Since it has been found that the Respondent on and after June 28, 1947, unlaw-
fully failed and refused to bargain collectively with the Union as the exclusive
representative of the employees in the unit heretofore found appropriate, the
Trial Examiner will recommend that the Respondent upon request bargain
collectively with such Union as such exclusive representative and, in the event
that an agreement is reached, embody such agreement in a signed contract.
Since it has been found that the Respondent adopted a method of selection
for recall which ignored customary seniority rights and did this as part of a plan
to weaken and destroy the Union and, hence, must be regarded as discriminatory,
it will be recommended that the Respondent offer reinstatement to and make
whole those who were the subjects of discrimination. It may well have been that
some of those named in the complaint, and some of the others omitted from the
recall, would have been omitted absent discrimination. It was up to the Respond-
ent "to disentangle the consequences for which it was responsible from those
from which it was immune," 44 and this the Respondent failed to do. Since the
ideal remedy, naming those to be made whole and offered reinstatement, cannot
here be recommended with the preciseness which is desirable, resort must be taken
to some practicable device which will reasonably assure an equitable disposition
of the problem. It has been found that the Respondent discriminated in selecting
individuals for rehire and it has been indicated that the record affords no basis
for determining precisely which of the employees suffered by reason of that dis-
crimination. It is necessary, therefore, to remedy as exactly as possible the
unfair labor practice in this respect both with reference to the employees as a
group and each employee as an individual. This can be accomplished only by
requiring the Respondent, in effect, to turn back the clock to July 26, 1947, and
then to proceed to select employees for recall upon a nondiscriminatory basis,
in accordance with the seniority provisions of the 1946-1947 collective-bargain-
ing agreement. It is recommended that employees who by application of the
contract terms were entitled to recall and who have not been rehired be reinstated
and that Respondent be ordered to offer to each such immediate and full rein-
statement to his former or substantially equivalent position 48 as of the date
found, by applying the contract provisions as to seniority to the appropriate
seniority roster and to the recall schedule which Respondent followed, to be
that when he should have been reemployed, without prejudice to- his seniority
or other rights and privileges he may have enjoyed and that the Respondent
make each whole for any loss of earnings he may have sustained by reason of
the discrimination against him by payment to each of a sum of money equal to
that which each would have earned as wages, from the date, found as above
stated, upon which he should have been recalled to the date of the offer of rein-
statement less his net earnings during that period. It is recommended that any
4' N. L. R. B. v. Remington Rand, Inc., 94 F. 2d 862 (C. A. 2, 1937), cert. den., 304
U. S. 576.
41 In accordance with the Board 's consistent interpretation of the term , the expression
"former or substantially equivalent position " is intended to mean "former position wher-
ever possible , but if such position is no longer in existence , then to a substantially equiva-
lent position ." See Chase National Bank of the City of New York, San Juan, Puerto Rico,
Branch, 65 NLRB 827.
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
individuals who have been recalled by Respondent but were rehired at a date
later than the one upon which they were entitled to reinstatement, as determined
by the method above recommended, be made whole for any loss of seniority or of
earnings he may have sustained by reason of the discriminatory delay by restor-
ing to each of them the seniority and other privileges he would have obtained had
he been ,reinstated upon his proper respective date and by paying to him a sum
of money equal to that he would have earned as wages from the date, found as
above stated, upon which he should have been recalled to the date upon which he
was in fact recalled . There should be omitted from the operation of the fore-
going recommendations for reinstatement all persons who were offered recall
and refused work and all who were recalled and thereafter resigned , quit, or
were discharged for cause . It is recommended that in the event differences arise
as to the interpretation or operation of contract provisions in particular cases,
or as to the application of seniority provisions to any individual, or as to the
qualifications or absence of qualifications of any employee, or as to whether or
not any particular job has, in fact, been abolished , the parties be remitted to
the procedures stated in the 1946-1947 collective -bargaining agreement for the
handling of grievances . It is further recommended that the Board expressly
reserve the right to modify the back pay and reinstatement provisions if made
necessary by a change of conditions and to make such supplements thereto as
may hereafter become necessary in order to define or clarify their application
to a particular set of circumstances not now appearing 4D
By refusing to bargain with the Union, by using an unlawful method in select-
ing its employees for reinstatement, and by the other violations of Section 8
(a) 1 of the Act hereinabove detailed, the Respondent has disclosed a puipose
to defeat self-organization among its employees . The Trial Examiner is con-
vinced that the unfair labor practices found indicate a danger that the com-
mission of unfair labor practices in the future is to be anticipated from the
Respondent's conduct in the past. In order that the preventive purposes of the
Act not be thwarted and that the interdependent guarantees of Section 7 of the
Act not be rendered ineffective, the Trial Examiner will recommend that the
Respondent be ordered to cease and desist from in any other manner interfering
with, retraining, or coercing its employees in the exercise of their statutory
rights.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case , the Trial Examiner makes the following :
CONCLUSIONS OF LAW
1. Textile Workers Union of America, affiliated with the Congress of Indus-
trial Organizations, is a labor organization within the meaning of Section 2
(5) of the Act.
2. All production and maintenance employees other than seasonal village
clean -up workers , excluding office and clerical employees , guards, and super-
visory employees with authority to hire, promote, discharge, discipline, or other-
wise effect changes in the status of employees or effectively recommend such
action, constitute , and at all times material herein have constituted, a unit
appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
49 See Toledo Desk & Fixture Company, 65 NLRB 1086, 1109-1110 (1946) ; enforced,
158 F. 2d 426.
WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 873
3. Textile Workers Union of America, CIO, was on June 28, 1947, and at all
times thereafter has been, the exclusive representative of all the employees in
the above-described appropriate unit for the purposes of collective bargaining
within the meaning of Section 9 (a) of the Act.
4. By refusing on and after June 28, 1947, to bargain with the Union, the
.Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) 5 of the Act.
5. By discriminatorily selecting employees for discharge, lay-off and rein-
statement from the date of the shut-down on July 26, 1947, until the reestablish-
ment of the second shift in January-February, 1948, and by the continuing failure
to reinstate the employees with greater seniority who had been omitted from the
original selection, the Respondent violated and is violating Section 8 (a) 3
of the Act.
6. 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
and is engaging in unfair labor practices within the meaning of Section 8 (a)
1 of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
. 8. Respondent did not violate Section 8 (a) 3 of the Act, by discharging Willie
Missildine, on November 24, 1947.
9. Respondent did not violate Section 8 (a) 1 of the Act, by interrogating
employees, concerning union affairs, activities or membership ; nor by urging
employees to withdraw from the Union for their own benefit; nor by inter-
fering with, restraining, or coercing employees in the exercise of rights guaran-
teed by the Act, through statements made by Cook, Strickland, Fisher, Beard.
or Tisdale.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in this case, the Trial Examiner recommends that the
Respondent, West Boylston Manufacturing Company, its officers, agents, suc-
cessors, and assigns shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Textile Workers Union of America,
CIO, as the exclusive representative of the employees in the unit hereinabove
found to be appropriate ;
(b) Discouraging membership in Textile Workers Union of America, CIO,
or in any other labor organization of its employees by discharging, laying off,
or refusing to reinstate, or by employing a discriminatory method in selecting its
employees for discharge of lay-off or for recall to employment, or by discriminat-
ing in any other manner in regard to their hire or tenure of employment or any
term or condition of employment ;
(c) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the rights to self-organization, to form labor organi-
zations, to join or assist Textile Workers Union of America, CIO, 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.
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Trial Examiner finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Textile Workers Union of America,
CIO, as the exclusive representative of the employees in the unit hereinabove
found to be appropriate and, if an agreement is reached, embody such agreement
in a signed writing ;
(b) Revoke and rescind all termination notices issued in June-July 1947, and
after selecting, from among all employees laid off in July 1947, employees for
reemployment as of the time of the reopening of the mill, about October 1, 1947,
and thereafter according to the reemployment schedule followed by Respondent,
to offer to those employees, thus selected by the nondiscriminatory methods here-
inabove recommended, immediate reinstatement to their former or substantially
equivalent positions and make them whole in the manner hereinabove outlined in
the section entitled "The remedy" ;
(c) ' Post copies of the notice attached to this Intermediate Report, marked
Appendix B. Copies of said notice, to be furnished by the Regional Director
for the Fifteenth Region, shall, after being signed by Respondent's representative,
be posted by the Respondent immediately upon receipt thereof and maintained
by it for sixty (60) consecutive days thereafter in conspicuous places including
all places where notices to employees customarily are posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by other material;
(d) Notify the Regional Director for the Fifteenth Region in writing within
twenty (20) days from the date of receipt of this Intermediate Report what
steps the Respondent has taken to comply therewith.
It is further recommended that unless on or before twenty (20) days from
receipt of this Intermediate Report the Respondent notifies the said Regional
Director in writing that it will comply with the above recommendations, the
National Labor Relations Board issue an order requiring the Respondent to take
the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National La-
bor Relations Board, 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 orig-
inal and six copies of a statement in writing setting forth such exceptions to the
Intermediate Report and Recommended Order 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 and Recommended Order. Immediately
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. Statements 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 permission to argue orally
before the Board, request therefor must be made in writing to the Board within
ten (10) days from the date of 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-
WEST BOYLSTON MANUFACTURING COMPANY OF ALABAMA 875
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and becomes its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 15th day of February 1949.
MERRITT A. VICKERY,
Trial Examiner.
APPENDIX A
List of the Persons Named in the Charge and Complaint as Discriminatorily
Laid Off
Olen S. Dickey
Clara Raley Griggs
Wiley Sargent Vann
Tobie Garrett
Charlie Spear Booth
Henry Boyd
William Henry Peel
Enna O. Peel
Cecil Young
Helen Rosalie Hamilton
Bertie Mae Grier
Everett Brantley Rester
Ella L. Porter
Ruby Harper Causey
Johnie L. Burdell
Ina Milton Crittenden
Marvin Moxley Dickey
Myrt Moses Smith
Thomas O. Vinson
Myrtle Irene Vincent Pearson
James Walter Suggs
Callie Boy Morrison
Sallie Mae Reynolds
Robert Dempsie Skipper
Alfred L. Heath
Calvin Ervin Lee
Dewey Johnson
Emmett James Almond
Bernice L. Phillips
Gennie Cauley Pelham
Henry Thomas
William V. Barron
Leo Spradley
Bennie A. Brown
Charles Wesley Wallace
James Jefferson Harper
Fannie B. Moore
Luttie Phillips Downing
Bama Belle Killough
Gurvis Lee Wallace
Avie S. Blanton
Opal A. Worthington
Lorene Lee Hall
Della Parilee Cos
Ethel S. Barron
Dollie Ottie Heath
William Franklin Hamilton
Melvin Miles Wade
Obie C. Taylor
Nina Bell Taylor
George Edward James
Gaynell Van Driver
Ronda Bell L. Hamilton
Ruth Hamilton Almond
Elizabeth Thomas
Willie Easter Hailer
Essie Mae Allen
Gertrude Davis
Ollin Wallace
Rose Edward Hamilton
John Copeland Driver
John T. Mann
Ruby Young
Edith A. J. Paxton
Lula Davis McCatha
Thomas Lee Paxton
Gladys Woodruff
Lee Fayte Jackson
Robert Marshall Kellum
Robert Everett Williams
Mary V. Hopper
Gussie S. Hartin
Gussie B. Calloway
Percy Napolan Evans
Edward Lee Elmore
Mary Russelle Wright
Lizzie Rustin Davis
George W. Couch
Lena Clark Couch
John M. Coker
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Minnie Lee Coker
Ada Conley Carnley
I. D. Kirkland
Samuel Jordan
Mollie T. Crawford
Mary Gunn Helms
Mellon Boyd
Lessie Davis Wallace
Louie C. Evans
Ruthie S. Knowles
Jesse D. Jackson
Lucille Reeves
Tolley Clifton Mann
Mary McKelvey
Ann Lois Armstead
Louise Elizabeth Boyd
A. C. White
Thelma Clark
Jimmie Corbitt
Henry C. Cummings
Clara Mae Hamby
Morris Cummings
Carrie F. Vann
Homer Monroe Hamby
William D. Howard
Laura H. Cummings
Lacy Williams
Mable Findley Howard
Justice Whatley
Johnnie Findley
Amos Joel Causey
Lois Todd Alford
Jesse Bradley (Added by
James Allen Hall
Noble Spradley
Doris E. Dickey Evans
George L. Umphrey
Lillian Davis
Antionette James
Florence James
Patsy McQueen
Mary Frances Richardson
Mary Anna Williams
Mary Jane Wright
Lanie Ula Welch
Luella Glass
Louise Smith Bailey
L. C. Jackson
Ruby Ivy Cook
Floyce L. Ellison
Earnestine Cobb
Mattie Thornton White
Harris Johnson
I. V. Williams
Eva W. Kirkland
Zue B. Hall
Willie Mae Haile
John H. Murray
Rebecca Bolden
Grayom L. Petty
Lula Byrd Barnett
James Ealie Short
Addie Lena Short
Willie Osker McGlaun
Clara M. S. McGlaun
amendment of the complaint at the hearing.)
APPENDIX B
NOTICE TO ALL EMPLOYER'S
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, as amended, 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 Textile Workers Union of America, CIO, 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.
WE WILL make whole for any loss of pay suffered as a result of the dis-
crirninatioii, the employees discriminated against by means of the failure and
refusal of reinstatement on the proper date and in the proper order following
the reopening of the mill about October 1, 1947.
WEST BOYLSTON MkNUFACTURING COMPANY OF ALABAMA 876a
WE WILL BARGAIN collectively upon request with the above-named union as
the exclusive representative of all employees in the bargaining unit described
herein with respect to rates of pay, wages, hours of employment, and other
conditions of employment, and if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is :
All production and maintenance employees other than seasonal village
clean-up workers, excluding office and clerical employees, guards, and
supervisors.
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 or any term or condition of employment against any
employee because of membership in or activity on behalf of any such labor
organization.
WEST BOYLSTON MANUFACTURING COMPANY,
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.