Wytheville Knitting Mills, Inc.

National Labor Relations Board - Board Decisions

Jul 29, 1948

78 N.L.R.B. 640 (N.L.R.B. 1948)

In the Matter of WYTHEVILLE KNITTING MILLS, INC., and AMERICAN
FEDERATION OF HOSIERY WORKERS, CIO
Case Nos. 5-R-9457 and 5-C-29217.Decided July 29,1948
Mr. Charles B. Slaughter, for the Board.
Shoyer, Rosenberger, Highley and Burns by Messrs. Geoffrey J.
Caniff and William N. J. McGinniss, of Philadelphia, Pa., for the
Respondent.
Mr. Albert Hacknvorth, of Chattanooga, Tenn., for the Union.
DECISION
AND
ORDER
On June 23, 1947, Trial Examiner Charles E. Persons issued his
-Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in, and was engaging in, certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. The Trial Examiner also found that the
'Respondent had interfered with a representation election conducted
among its employees by the Board on October 15, 1946, and recom-
mended that the election be set aside. The Trial Examiner found
further that the Respondent had not engaged in certain other unfair
labor practices 1 alleged in the complaint, and recommended dismissal -
of those allegations. Thereafter, counsel for the Respondent and for
the Board filed exceptions to the Intermediate Report and briefs in
support of their exceptions. In addition, the Respondent has re-
quested permission to argue orally before the Board at Washington,
D. C. However, because the request was untimely made and inasmuch
as the issues and contentions of the parties are fully set forth in the
record and briefs, the request is hereby denied.2
I Those provisions of Section 8 (1) of the National Labor Relations Act which the Trial
Examiner found were violated, and of Section 8 (3) which he found had not been violated,
are continued in Section 8 (a) (1) and (3) of the Act, as amended.
, The Rules and Regulations of the Board provide that request to argue orally must be
made in writing within 10 days from the date of service of the order transferring the case
to the Board. The order herein was served on the parties on July 2, 1947, and oral argu-
ment was requested on July 30, 1947.
78 N. L. R. B., No. 79.
640
WYTHEVILLE KNITTING MILLS, INC. 641
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this proceeding to a three-
man panel consisting of the undersigned Board Members.*
The Board has reviewed the rulings made by the Trial Examiner
and finds that no prejudicial error was committed.' The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the exceptions and supporting briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, with the exceptions, modifications, and additions
noted below :
1. The Trial Examiner found, as fully set forth in the Intermedi-
ate Report, that, by certain conduct of its president and its supervisors',
the Respondent violated Section 8 (1) of the Act. We agree. We
limit the grounds for our finding, however, to the following: (a)
Inquiries by Foreman Porter and Head Fixer Schuler of the Respond-
ent's 'employees as to their attitude toward the Union, and as to their
intended vote in the election; 4 (b) Foreman Porter's remark to em-
ployee Hann that if the Union won the election the employees would
lose all their privileges; 5 and (c) President Wetzel's promise of sub-
stantial insurance benefits as a make-weight in the Respondent's ef-
forts to defeat the Union.
2. For the reasons stated in paragraph 1, above, we find, as did the
Trial Examiner, that the Respondent interfered with the conduct of
the election of October 15, 1946, thereby depriving the employees of
the freedom of choice contemplated by the Act. We theref ore sustain
*Houston, Murdock , and Gray.
3 The Trial Examiner denied a motion by the Respondent to strike from the record all
testimony regarding an alleged anti-union petition circulated in the plant. The Inter-
mediate Report is unclear as to what weight , if any, was given to this testimony by the
Trial Examiner In view of the state of the record , which fails to disclose that anyone
saw the petition or that the Respondent was in any way connected with the document, we
have placed no reliance on the testimony concerning the alleged petition in arriving at our
decision herein. Accordingly , we find it unnecessary to pass upon the Trial Examiner's
ruling
-1 H J Heinz Company v N. L R B, 311 U S 514, aff'd 110 F. (2d) 843 (C. C. A. 6),
enf'g 10 N L R B 963 ; N. L R B v. Norfolk Southern Bus Corporation , 159 F. ( 2d) 516
(C C A 4); enf'g 66-N. L R B 1165 , Matter of General Shoe Corporation , 77 N L. R B:
124, Matter of Wadesboro Full-Fashioned Hosiery Mills, Inc., 72 N L R B. 1064.
a Hatter of Caroline Mills, Inc., 64 N. L.'R. B . 200, enf'd 158 F. (2d) 794 . The Respond-
ent urges that, even assuming that the statement was made, it threatened only the with-
drawal of the smoking privilege and was therefore de minimis and that the remark is privi-
leged because it was made in the course of a friendly conversation. We do not agree We
are persuaded by the testimony that the loss of all privileges was threatened and that the
smoking privilege was mentioned as illustrative. Accordingly , we shall not pass, upon the
contention addressed to the degree of coercion involved. As to the further contention , ,ev`en
assuming the statement was made during a friendly conversation , we find that . it'did not
thereby lose its coercive effect. Matter of Wadesboro Full-Fashioned Hosiery Mills, Inc.,
supra. - .. I .- . ,
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD.
the Objections of the Union to the election and, based thereon, we shall
set aside and vacate the election.
3. We do not agree with the Trial Examiner's conclusion that the
Respondent has not discriminated in regard to the hire and tenure of
employment of Frances A. Cox and Nettie Ann Fowlkes, within the
meaning of Section 8 (3) of the Act.
The Trial Examiner found that, during the October 16, 1946, strike
at the Respondent's plant, Cox and Fowlkes were conspicuous and
outstanding in their use of offensive and opprobrious epithets toward
the non-striking employees who passed through the picket line; that,
when Cox and Fowlkes returned to work on October 23, 1946, em-
ployees in their department engaged in a spontaneous and unplanned
demonstration against them because of their conduct during the strike,
and refused to work with them; that the Respondent thereupon asked
Cox and Fowlkes to go home until the situation "cooled off"; and
that although Cox and Fowlkes endeavored to work thereafter they
were not permitted to do so. The Trial Examiner concluded, in
effect, from the foregoing findings that, because the conduct of Cox
and Fowlkes was not legitimate concerted activity entitled to protec-
tion under the Act, the Respondent's refusal to permit these two em-
ployees to return to work while the other employees refused to work
with them is not a violation of the Act. However, we are unable to
adopt the major premise of the Trial Examiner.
In evaluating statements such as those made by Cox and Fowlkes,
we have heretofore found it advisable to measure them by the sur-
rounding circumstances, and by the nature of the speaker and his audi-
ence.6 A similar analysis in the instant case reveals that the pro-union
employees had just lost an election, and that the preelection atmos-
phere was one of hostility to the Union and included conduct which
we have found to be proscribed by the Act. It shows further that the
resentment of these employees manifested itself in a strike and that,
like most strikes, it generated emotional outbursts by the strikers
against the non-strikers.
Although we have not previously and do not now condone the use
of abusive and intemperate language in the conduct of industrial
relations, reality requires us to recognize that industrial disputes are
not always conducted in the dispassionate atmosphere best calculated
to result in their amicable settlement. Viewed in this light, the lan-
guage of Cox and Fowlkes, while intemperate and ill-advised, must
be regarded as an integral and inseparable part of their concerted
activity, for which the Act affords them protection. Consequently,
4 X..ttvr of Howard Foundry Company, 59 N. L. R. B. 60, 73.
WYTHEVILLE KNITTING MILLS, INC. 643
we find that, unless the discharge of Cox and Fowlkes was mitigated
by other circumstances, they were entitled to reinstatement upon
termination of the strike.'
In justification of its failure to reinstate Cox and Fowlkes, the
Respondent relies on the fact that other employees refused to - work
with them, and that, so long as those employees opposed their rein-
statement, it had no obligation under the Act to reinstate them. An
employer cannot thus relieve itself of its responsibilities under the
Act. It is well established that the discharge of, or failure to rein-
state, employees because other employees have ejected them from the
plant or refused to work with them because of their membership in
or activities on behalf of unions is discriminatory, and that it is the
duty of an employer to resist domination of its right and power to
employ, whether manifested by or toward a union.8 This is equally
true where, as here, the refusal to work with certain employees is a
condition which results from the latter's protected concerted
activities.9
We are persuaded that the Respondent made so slight an effort to
reinstate these two employees that it was tantamount to allowing the
protesting employees full sway over the Respondent's power to employ.
Thus, the Respondent made no attempt, either by way of persuasion or
through exercise of its disciplinary power, to enforce Foreman House-
man's disobeyed direction to the demonstrating employees that they
return to their work. It repeatedly asked for additional time in which
to face the issue presented by the refusal to work with Cox and
Fowlkes, without taking any affirmative action to resolve it. It at-
tempted to shift the burden of its responsibility to the shoulders of
Cox and Fowlkes and the union committee by requesting them to
placate the objecting employees, while the Respondent itself was con-
tent merely to ask these employees perfunctorily "how they felt" about
Cox and Fowlkes returning to work 10 And at no time did Superin-
tendent Schmidt or President Wetzel make any attempt to intervene
personally in the situation, nor did the Respondent at any time ex-
pressly and publicly repudiate the refusal to work with Cox and
7 N L R. B. v Mackay Radio & Telegraph Co, 304 U. S 333.
As noted in the Intermediate Report, the Respondent agreed to the reinstatement
of all strikers without discrimination . The record does not indicate that any employees
were replaced during the strike.
8N. L. R. B. v. Goodyear Tire and Rubber Co., 129 F. (2d) 661 (C. C. A 5) enf'g 21
N. L. R B. 306, N. L. R. B. v American Car and Foundry Company, 161 F. (2d) 501
(C. C. A. 7), enf'd 66 N. L . It. B. 1031; Matter of Fred P. Weissman Company, 69
N. L It. B 1002.
B Wilson & Co , Inc. v. N. L. R. B., 123 F. ( 2d) 411 ( C. C A. 8 ), enf'g 26 N. L . R. B. 297,
26 N L R. B. 273.
11 Not until 2 or 3 weeks after the demonstration was this inquiry made for the first time ;
the same question was asked before Christmas of 1946, and again in the 2nd or 3rd week
of March 1947 , after the issuance of the complaint herein.
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fowlkes. In these circumstances , the objecting employees could rea-
sonably conclude that their conduct had the tacit approval of the
Respondent , and feel encouraged in their opposition to the reinstate-
ment of Cox and Fowlkes.
The fact that the Respondent may have feared the interruption of
its operations if it did not comply with the wishes of the protesting
employees did not justify its yielding to them its power to employ.
An employer is not relieved of responsibility for its discrimination
because the exigencies of the moment make expedient a violation of
the Act."' Accordingly , we are persuaded , and we find , that Cox and
Fowlkes were unlawfully refused reinstatement.
Moreover , we are convinced that an operative factor in the refusal
to reinstate these two active union adherents was the Respondent's
anti-union bias. This is shown by its failure to take any affirmative
action to dissipate the hostility of the objecting employees and by its
conduct toward the Union in violation of the Act. Indeed, by its
action, the Respondent was, in effect , collaborating with the anti-union
faction 12 in effecting punishment for pro-union concerted activity.
This was as much a deprivation of the rights of Cox and Fowlkes as
it would have been had the Respondent done it alone . To permit the
Respondent to accomplish this result by indirection , through the
medium of the anti-union faction, would be to sanction a readily con-
trived device for evasion of the Act.
We find, therefore , that by failing to reinstate Frances A. Cox and
Nettie Ann Fowlkes, on and after October 23, 1946, the Respondent
discriminated in regard to their hire and tenure of employment , there-
by discouraging membership in the Union , and interfering with,
restraining , and coercing employees in the exercise of the rights
guaranteed in Section 7 of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and take
certain affirmative action which we find necessary to effectuate the
policies of the Act, as amended.
11 N L R. B v Star Publishing Co., 97 F . ( 2d) 465 (C. C. A 9) ; McQuay-Norris Mfg Co.
v N L R B, 116 F. (2d) 748 (C. C. A. 7), cert. denied 313 U. S . 565; N. L. R. B. v. Gluck
Brewing Co , 144 F. ( 2d) 847 (C C. A. 8) ; Wilson & Co, Inc . v. N L. R. B, supra.
13 Although the October strike was actively supported by 25 of the approximately 60
employees in the department , only 5 of the approximately 55 employees at work when Cox
and Fowlkes returned after the strike did not participate in the demonstration against
them It is unlikely , however, that the 15 or so pro-union employees entertained any
animus against Cox and Fowlkes for their conduct on the picket line or would have refused
to work with them because of it.
WYTHEVILLE KNITTING MILLS, INC. 645
The Trial Examiner found that the Respondent violated Section
8 (1) of the Act by interrogation of employees, and by threats of re-
prisal, and promise of benefit to employees. However, his recom-
mended order did not contain any provision directed particularly at
such violations. We are of the opinion, upon the entire record, that
the commission in the future of such acts of interference and of other
unfair labor practices may be anticipated from the Respondent's con-
duct in the past.13 We shall, therefore, order that the Respondent
cease and desist from such conduct, and from in any other manner
infringing upon the rights guaranteed to its employees in Section 7
of the Act.
Since we have found that the Respondent has, by its unfair labor
practices, interfered with the free choice of representatives by its em-
ployees at the election of October 15, 1946, we shall set the election
aside. When we are advised by the Regional Director that the time is
appropriate, we shall direct that a new election be held among the
Respondent's employees.
We have found that the Respondent discriminated in regard to the
hire and tenure of employment of Frances A. Cox and Nettie Ann
Fowlkes. In order to effectuate the purposes and policies of the Act,
as amended, we shall order that the Respondent offer to Frances A.
Cox and Nettie Ann Fowlkes immediate and full reinstatement to their
former or substantially equivalent positions,14 without prejudice to
their seniority and other rights and privileges, and make them whole
for any loss of pay they may have suffered by reason of the discrimina-
tion against them by payment to each of them of a sum of money equal
to the amount which she normally would have earned as wages from
the date of the Respondent's discrimination against her to the date of
the Respondent's offer of reinstatement, less her net earnings 15 during
such period. In accordance with our practice, the period from the
date of the Intermediate Report to the date of the Order herein will
be excluded in computing the amount of back pay Frances A. Cox and
Nettie Ann Fowlkes are entitled to, since the Trial Examiner did not
recommend their reinstatement or the award to them of back pay.
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
13 See N L R B v Express Publishing Company, 312 U. S 426
14 In accordance with the Board's consistent interpretation of the term , the expression
"former or substantially equivalent position " is intended to mean "former position wherever
possible , but if such position is no longer in existence , then to a substantially equivalent
position ." See Matter of The Chase National Bank of the City of New York, San Juan.
Puerto Rico, Branch , 65 N L R. B 827
15 See Matter of Crossett Lumber Company, 8 N L R. B. 440.
798767-49-vol 78-42
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board hereby orders that the Respondent, Wytheville Knit-
ting Mills, Inc., Wytheville, Virginia, and its officers, agents, succes-
sors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in American Federation of Hosiery
Workers,16 or in any other labor organization of its employees, by dis-
charging or refusing to reinstate any of its employees, or by discrim-
inating in any other manner in regard to their hire and tenure of
employment, or any term or condition of employment;
(b) Interrogating employees in any manner as to their union activi-
ties, views, or sympathies;
(c) Threatening employees with the withdrawal of privileges or with
any other economic reprisal if American Federation of Hosiery Work-
ers, or any other labor organization, succeeds in unionizing the plant;
(d) Promising employees an insurance plan or any other economic
benefit if they reject American Federation of Hosiery Workers, or any
other labor organization as their collective bargaining representative;
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist American Federation of Hosiery
Workers, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purposes of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Frances A. Cox and Nettie Ann Fowlkes immediate and
full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges, and
make each of them whole for any loss of pay that she may have suffered
as a result of the discrimination against her by payment to each of
them of a sum of money equal to that which she normally would have
earned as wages during the period from the Respondent's discrimina-
tion against her to the date of the Intermediate Report herein, and
during the period from the date of this Order to the date of the Re-
spondent's offer of reinstatement, less her net earnings during such
periods;
(b) Post at its plant at Wytheville, Virginia, copies of the notice
attached hereto and marked "Appendix A." 17 Copies of said notice,
ie American Federation of Hosiery workers is at present an unaffiliated labor organization.
" In the event that this Order is enforced by a decree of a Circuit Court of Appeals, there
shall be 'inserted before the words "A Decision and Order" the words ; "Decree of the
United States Circuit Court of Appeals Enforcing."
WYTHEVILLE KNITTING MILLS, INC. 647
to be furnished by_ the Regional Director for the Fifth Region, after
being signed by the Respondent's representative, shall be posted by the
Respondent immediately upon receipt thereof, and maintained by it
for sixty (60) consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material;
(c) Notify the Regional Director for the Fifth Region, in writing,
within ten (10) days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent discriminatorily discharged or denied reinstatement
to Margaret Pearl Mills in violation of Section 8 (3) of the Act, be,
and it hereby is, dismissed.
AND IT IS FURTHER ORDERED that the election held on October 15, 1946,
in Case No. 5-R-2457 be, and it hereby is, vacated and set aside.
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate our employees in any manner con-
cerning their union activities, views, or sympathies.
WE WILL NOT threaten employees that we will withdraw their
privileges or take any other economic reprisal if AMERICAN FED-
ERATION OF HOSIERY WORKERS, or any other labor organization,
succeeds in unionizing our plant.
WE WILL NOT promise our employees an insurance plan or any
other economic benefit if they reject AMERICAN FEDERATION OF
HOSIERY WORKERS, or any other labor organization as their col-
lective bargaining representative.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self -organiza-
tion, to form labor organizations, to join or assist AMERICAN FED-
ERATION OF HosIERY WORKERS, or any other labor organization, to
bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
WE WILL offer to Frances A. Cox and Nettie Ann Fowlkes im-
mediate and full reinstatement to their former or substantially
equivalent positions without prejudice to any seniority or other
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rights and privileges previously enjoyed, and make them whole
for any loss of pay suffered as a result of the discrimination against
them.
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 the 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.
WYTHEVILLE KNITTING MILLS, INC.,
Employer.
Dated--------------- By---------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date thereof,
and must not be altered , defaced , or covered by any other material.
INTERMEDIATE REPORT
Mr. Charles B. Slaughter, for the Board.
Shover, Rosenberger, Highley and Burns, by Messrs. J. Geoffrey Can if and
William N. J. McGrinniss, of Philadelphia, Pa, for the Respondent.
Mr. Albert Hackworth, of Chattanooga, Tenn, for the Union.
STATEMENT OF THE CASE
Upon a petition duly filed by the American Federation of Hosiery Workers,
CIO, herein called the Union, the National Labor Relations Board, herein called
the Board, held a hearing on August 8, 1946, and conducted an election on
October 15, 1946, to determine whether the employees of the Wytheville Knit-
ting Mills, Inc., herein called the Respondent, desired to be represented by the
Union for the purposes of collective bargaining. A majority of the votes were
cast against the Union.' The Union filed- objections to the conduct of the elec-
tion on October 19, 1946, and the Regional Director for the Board's Fifth Region
(Baltimore, Maryland), issued his report on the objections on January 13, 1947,
finding that substantial and material issues were raised to the conduct of the
election and recommending that a new election be held. To this report the
Respondent duly filed objections. On January 29, 1947, the Board ordered that
a hearing be held for the purpose of resolving the issues raised in the Union's
objections. On October 18 and November 13, 1946, respectively, charges and
amended charges were filed by the Union against the Respondent. On the basis
of these charges the Board ordered, on February 27, 1947, that the complaint and
representation cases be consolidated for purposes of a hearing.
Upon a second amended charge duly filed on February. 27, 1947, by the Union,
the Board by the Acting Regional Director for the Fifth Region, issued its com-
plaint dated March 3, 1947, against the Respondent, alleging that it has en-
gaged in and is engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (1) and (3), and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, herein -called the Act. Copies of the second
1 The tally of ballots showed 'that of 263 valid votes counted, 140 voted against the11
)Union and 123 were favorable to the Union. 1
WYTHEVILLE KNITTING MILLS, INC. 649
amended charge, 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, as amended at the
hearing, alleges in substance that.: (1) the Respondent by its officers, agents, and
supervisory employees through stated acts interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed in Section 7 of the Act ; and
(2) that the Respondent discharged Margaret Pearl Mills on July 15, 1946,
Frances Cox and Nettle Ann Fowlkes on October 23, 1946, and thereafter refused
to reinstate them, because they joined and assisted the Union and engaged in
concerted activities with other employees for, the purposes of collective bargaining
or other mutual aid or protection.
The Respondent submitted no written answer prior to the hearing. At the
hearing Respondent's counsel orally stated its answer on the record admitting cer-
tain facts as to its corporate organization, the nature and extent of its business,
and that the Union was a labor organization, but denying any unfair labor
practices.
Pursuant to notice a hearing was held on April 9, 10, 11 and 12, 1947, at Wythe-
ville, Virginia, before the undersigned, Charles E. Persons, the Trial Examiner
duly designated by the Chief Trial Examiner. The Board and the Respondent
were represented by counsel and the Union by one of its officials. Full opportunity
to be heard, to examine and cross-examine witnesses and to introduce evidence
bearing on the issues was afforded all parties. Prior to the hearing, on March 6,
1947, the Respondent had submitted a motion to the Regional Director asking for
a more particular complaint. On March 10, 1947, the Acting Regional Director
granted this motion with the proviso that the information be furnished on or
before March 14, 1947. The Board's counsel duly fulfilled this requirement At
the close of the Board's presentation the Respondent moved to strike certain
testimony and to dismiss the complaint, insofar as it alleged discriminatory dis-
charges. These motions were denied without prejudice to their renewal later.
They were renewed by the Respondent at the close of the hearing and then taken
under advisement and are now disposed of by the findings, conclusions, and recom-
mendations in this Intermediate Report. The Board moved to conform the plead-
ings to the proof as regards immaterial matters such as the spelling of names and
dates This motion was granted without objection. All parties waived oral
argument before the undersigned. They were duly advised that they had the
privilege of presenting briefs and/or Proposed Findings and Conclusions of Law
for the consideration of the Trial Examiner. Briefs have been received from the
Board and from the Respondent.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT'
Wytheville Knitting Mills, Inc , a Virginia corporation, with its principal
office and mill at Pepper's Ferry Road, Wytheville, Virginia, is engaged in the
2 Margaret Pearl Mills was erroneously named in the complaint as Pauline Mills. The
parties stipulated at the hearing that her correct name was as stated above and the
complaint was amended in this respect.
S These data were presented at the hearing in the representation proceeding on August 8,
,1946. At the hearing in the instant proceeding it was stipulated that there had been
no substantial change since then in the pertinent facts. ,
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manufacture and sale of full-fashioned hosiery. The Respondent annually pur-
chases raw material, consisting mainly of rayon, nylon, and cotton valued at
more than $300,000, of which about 80 percent is shipped to its mill from points
outside the State of Virginia. The annual production of finished stockings is
valued at more than $1,000,000, of which about 80 percent is shipped to points
outside the State of Virginia.
The Respondent admits and the undersigned finds, that it is engaged in com-
merce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
American Federation of Hosiery Workers, CIO, is a labor organization admit-
ting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background and sequence of events
Respondent's mill furnishes eifiployment to approximately 300 individuals
working on two shifts. These employees are drawn from Wytheville and the
surrounding territory within a radius of 25 miles. The management of the mill
may conveniently be set forth here. President Richard C Wetzel, who visits
the mill about every 2 weeks, takes an active part, as the record shows, in direct-
ing its affairs. David B. Whitehurst is personnel manager and Paul Schmidt is
superintendent. Schmidt has two assistants on each shift: on the day shift,
Charlie Walters and James Chapman ; on the night shift Louis Porter and
William "Bill" Manuel. Also reporting directly to Schmidt are Head Fixer
Albert Schuler and Legger Foreman Elwood Homan The auxiliary services
looping, seaming, mending and inspecting are supervised by Fixer and Foreman
Walter Houseman, Forelady Delena Hoback over seaming and looping ; Irma
Bral]ey over inspecting; Reeves Hanley over the footing department.'
The Union organizational movement in Respondent's mill began when a group
of operators on single unit machines, among whom Lester Stroupe and Garland
Walters were prominent, became dissatisfied with their earnings as contrasted
with those of operators on straight legger machines. After considerable discus-
sion and comparison of pay checks, they decided to walk out on Friday night,
June 21, 1946. Being unfamiliar with union methods, one of their number, Wal-
ters, went to the neighboring city of Pulaski and arranged that Fred Held, a
national representative of the Union, should come to Wytheville and assist in
setting up a local organization. Held addressed a meeting held -on Saturday.
Cards of application for membership in the Union were distributed. Those
interested in the work stoppage canvassed the employees for signatures on these
cards during the week-end and at the mill gate on Monday morning. These
efforts were so far successful that only a few employees worked that day. Wetzel
came to Wytheville and posted a new schedule of piece rates at the mill. The
adjustments made were satisfactory to the employees and at a mass meeting
held that night it was voted to return to work on Friday morning. At this time
* The Board contended that Flora May Cline, who at times instructed apprentice seamers,
was of supervisory status Cline was excluded from the eligible list in the Board election.
However , her services as an instructor were temporary and it clearly appears that she did
not supervise other employees and exercised no authority over matters of hiring, discharge,
promotion or discipline . Hence, the undersigned finds no merit in this contention by the
Board.
WYTHEVILLE KNITTING MILLS, INC. 651
a Union committee was elected composed of Lester Stroupe, Garland Walters,
Margaret Pearl Mills and Ruth Carty.
Held was involved in other duties which necessitated his leaving Wytheville.
He was succeeded by Albert Hackworth, another national official and represent-
ative of the Union in the instant proceeding. Hackworth arrived in Wythe-
ville on Sunday, June 23, 1946, and instructed the interested employees in methods.
of organization. He was present at the mill gate on Wednesday morning. He
also arranged that the United States Conciliation Service should intervene.
After the settlement of the walk-out, Hackworth remained in charge of the
local organization. As noted above the Union petitioned for investigation and
certification of representatives and after a hearing held on August 8, 1946, the
Board on September 18, 1946, issued its Decision and Direction of Election. An
election was held on October 15, 1946, in which the Union was defeated. Hack-
worth thereafter filed objection to the conduct of the election. On the day fol-
lowing the election the Union adherents went on strike. Picket lines were set
up and maintained for a week United States Commissioner of Conciliation,
Albert P. Lohm, came to Wytheville and arranged that the strike be settled
on the basis of the reinstatement of all strikers without discrimination. This
understanding was reached informally. The parties were not brought together
but on Lohm's assurance that such an agreement had been reached the strikers
returned to their posts on Tuesday, October 22, 1946.
B. The disputed election. Interfe) ence, restraint and coercion
On Monday morning, June 24, 1946, employee Lester Stroupe and other Union
protagonists were soliciting signatures on Union application cards of employees
arriving for work and requesting them not to work until a settlement was reached.
Superintendent Schmidt, Legger Foreman Elwood Homan, and Head Fixer
Albert Schuler came to the gate. Homan asked for one of the union cards and
assured Stroupe, "This is no good at all. You got to have a secret ballot election."
Stroup whose knowledge of union organizational matters was slight and who,
testified that the statement "confused" him, said nothing. Homan then reminded
Stroupe that the Respondent had been especially nice to him in rehiring him
on a prior occasion after he had quit. Schmidt intervened and referred to a
promise made by Walters that no union would be called in until Wetzel had
been reached and matters in dispute discussed with him. Schmidt further stated
that "he knew who went down to Pulaski after the organizer, he had his license
number." The record establishes and the Respondent, in ettect, admits that
Homan attended the Union meeting that evening. It will be remembered that
members of the Union committee were then elected.
Walters gave unrefuted and credited testimony that on Monday, June 24, 1946,
Foreman Manuel came to him in Wytheville and said, with reference to the
strike, "What will you take to call it off?" Walter's further testimony is recorded
as follows :
I said, "What do you mean? . . . I don't sell nobody off." So I walked
off. I didn't say no more to him.
On a date which Walters could not definitely fix but falling between the settle-
ment of the June strike and the Board election, Manuel on several occasions came
to him while at work, saying in substance, "What do you want a union for?
You are getting good pay, it won't do you no good to get one. The people in
Pulaski are dissatisfied with the Union. And a whole bunch of stuff like that."
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The reference to Pulaski was to a mill in that adjacent city where the Union
had a contract.
During the same period of time Porter was accustomed to come to Walters'
work place and say, as Walters' uncontroverted and credited testimony reads:
Bill [Porter] would tell me [the Union] wasn't no good people in Pulaski
didn't like the. Union and that we was getting more money than they in
Pulaski, as much or more. Sometimes he would say more or as much. He
told me everything like that, you know. Also we shouldn't get it [the Union]
he brought it in a couple of times, should let things drop, we should be
satisfied with what we was getting then. You see, we jumped so much pay
there, we should be satisfied.
According to the credited testimony of Stroupe, Porter, during this period,
also came to him at his work station on more than one occasion and made a
similar statement. Stroupe's testimony reads :
Well, he told me that we always had a good thing, to let it be where it
was at and leave off the union or leave off the organizing, and he went on to
say that they wasn't much satisfied down in Pulaski with organizing and
stuff like that.
Stroupe also had conversations at this time with Head Fixer Schuler recorded
in Stroupe's unrefuted and credited testimony as follows :
Yes, I talked with Al Schuler different times about it and he offered me
a bet one time that we would lose the election and he told me that he bet
me $1500 that we would lose the election, and I told him, I said, "That is
a little steep ain't it, you are pretty sure of yourself?" And he said, "Yes,
I have got 125 that I talked to, unless they lie to me or don't keep their
promise, the Union will lose this election."
Stroupe during these months also initiated a conversation with Homan by
inquiring of him concerning a remark made by another employee. Homan made
use of the opportunity to assure Stroupe "that the Union wasn't fit for anything,
just for guys that didn't want to work and guys that wanted to grumble and
growl."
Employee Frances Cox testified that Forelady Hoback came to her work place
very frequently in the period between the June strike and the Board election
and talked about the Union and the election. Cox's testimony relating to what
Hoback said is recorded as follows :
She said if we all did just vote against the Union, we wouldn't get it and
she had worked there for nine years without it and she got along all right,
that she was sure we didn't need one. . . . She said my uncle who worked
along the side, worked a long time without the Union and he got along all
right without one too.
Cox further testified that on election day Hoback came to her work place and
said "for all of us to just vote against the [Union] and we could vote it out."
Hoback when called as a witness by the Respondent, made a general denial
of this testimony by Cox, saying, "I did not talk to her about the Union at all,"
and further that she had never mentioned the word "union" to Cox in the 4
months' period. After considering the demeanor of these witnesses and their
testimony with reference to its setting in the entire record the undersigned
credits Cox and rejects Hoback's denials.
Employee Basil Fowler gave undenied and credited testimony that about the
last of July or first of August he had a conversation with Porter who came to
his work place. Fowler's pertinent testimony reads,
WYTHEVILLE KNITTING MILLS, INC. 653
He asked how it was going and I asked him what he meant and he said
he heard something about us having a union meeting, how was we getting
along, and I said well come an election and we would show him, and he
offered to bet me $100 that the union would lose and the company would win.
Employee John C Hann gave undenied and credited testimony that Porter
came to him while at work about a week before the election and a conversation
ensued. Hann's testimony regarding the incident is recorded as follows :
Well, he asked me what I thought about the union. I told him I thought
it was a good thing. He wanted to know why. I told him, well, if we
didn't get in, in a year we would be back where we started from. He said,
`Better study it over." He said if the union got in there, we would lose all
of our privileges. He said we couldn't go to the rest room and smoke when
we wanted to. So I just turned and walked away from him and didn't say
any more.
Fowler further testified that on Friday before the election, i. e., on October 11,
1946, during working hours, Porter came to Stroupe's station and started a
conversation about the impending election. On Stroupe's expressing the opin-
ion that the Union would win, Porter rejoined that he,had talked to just about
every employee and "from what they said he didn't believe that the union would
win." Porter then procured an anti-union leaflet, which had recently been dis-
tributed at the mill gate,' and advised Stroupe to read it, adding, "As soon as
you get through with it, why don't you pass it around and let some of the other
boys read it." Stroupe tore the leaflet into fragments and threw them on the
floor.
Employee James D. Wright gave uncontradicted and credited testimony that
Porter came to him while at work on either Thursday or Friday before the elec-
tion and asked how he intended to vote. When Wright answered, Porter en-
joined him to think it over.
Employee James Kemper testified that about 2 days before the election he
asked Legger Foreman Homan whether he thought the Union would come in.
Homan replied, "If it does, this fellow like Walters won't have anything to do
with it . . . he couldn't even run a machine, much less run a union."
Homan, at about the same time, showed Kemper at his work place a printed
copy of a union contract and called his attention to a section which stated that
the employer retained full control of his plant, saying, "I want you to read this.
This is about the union. I want to be sure you understand about the union."
After leaving Kemper, Homan showed this document to other employees.
About the same time Stroupe, on Schuler's suggestion that Wetzel wished to
have a conversation with him, went to Wetzel's office. Wetzel talked to Stroupe
in the presence of Superintendent Schmidt and of William Riedel, sales manager
for the Respondent. Stroupe's credited testimony, which was not denied by
Wetzel, is recorded as follows :
Well, I went in and we sat down and Mr. Wetzel asked me, lie said, "What
do you all want?" Or, "What is wrong?" Or something like that. I told him
that the boys out there wanted an agreement or contract signed that would
6 The Board alleged that the Respondent was responsible for the publication and distri-
bution of this leaflet . This assertion was unproven . The record shows that it was
written, with some outside help , by two employees , who paid for the printing and per-
sonally distributed it at the mill gate on Friday night, October 11, 1946. Nothing in the
record indicates that the Respondent has any responsibility for this leaflet ' s initial
publication and distribution.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
insure them they would continue getting wages that they were getting right
at that time and that they wanted hospitalization insurance and he said at
that time, he said, "I can't promise you no insurance , .. . I can't promise
you I will give you anything " And lie says ... and then we talked about
a paper petition or something was going around in the mill , that the employees
were signing that they wouldn't vote against the [company ] ` and he said
the company wouldn't have anything to do with anything like that And
I said, "Is it true that if 50 percent of the employees would sign that paper
,that the election would be set aside ." And he said, "That' s right."
* * * * * *
Well, I said to Mr. Wetzel , "Why don ' t we get organized for a year and then
if [the Union ] don't do what they say they will do, if they hurt us any, we
will vote them out. . . . that the majority always rules," and he said, "Why
not just leave them out and in six months you can have another election
and vote them in if we don 't live up to what we say?"
* * * * * * *
That is all I could recall that was said . Oh, when I started to leave out, he
told me, he says, "I can't tell you that we are going to have insurance, but,
- . . I can tell [ Riedel ] we are definitely going to have an insurance put into
effect."
Under date of October 11, 1946, Wetzel sent a letter on the Respondent 's letter-
*head to each employee . It was Wetzel 's testimony that this letter , although
signed by them, was written by his counsel. The significant paragraphs of the
letter read :
On October 15, 1946, between the hours of 3: 30 P. M and 5. 30 P. M, the
National Labor Relations Board is going to conduct an election among our
employees in order to decide whether you desire to be represented by the CIO
Union or to continue the present set-up. Up until the present time I have
remained silent and have said nothing to you about this coming election.
But in view of the many questions the employees are asking and up to now
have gone unanswered and of their importance to you, to this company, and
to the community in general , I feel that I am duty bound to make clear to you
-certain facts which you should have in mind when you cast your ballot.
First, I wish to call your attention to the fact that we have always operated
on an open shop basis. No employee has ever been obliged to join any labor
organization in order to work for the Wytheville Knitting Mills, and it is our
desire that this basis continue.
Second , many employees ask whether the present piece rate system will
continue , if the Union does not win the election , we promise to continue the
present system ; but if the Union does win, there is no way of now saying what
will happen.
Third, I wish to say to all of you employees that this Company will feel no
ill will nor discriminate against any individual who has been active on behalf
of any outside organization . You have been exercising your rights as a free
American citizen and we respect these rights . Therefore, no one of you need
fear any consequences of any kind in the future because of any Union activ-
ities you may have engaged in.
6 Stroupe first inadvertently stated that this petition stated the signers "wouldn't vote
against the union " He corrected this error stating that the petition stated, "They would
vote for the company, they would vote against the union."
WYTHEVILLE KNITTING MILLS, INC . 655
Before casting your ballot you must decide whether it is to your advantage
to be represented by any outside CIO Union You have a right to consider
-whether or not the CIO is interested in your welfare or whether it is interested
in you because of the dues that they may collect from you. You have a right
also to consider whether you need an outside organization to represent you.
'This Company has never refused to meet with any of you to discuss any
problem that you may have, and we would like to eontnrue this family spi?it.
Since we commenced operations in Wytheville in 1938, we have employed
only local employees, and we have raised wages just as fast as these employees
learned the operations and became efficient and as business conditions per-
mitted until today we pay wages in line with our competitors in this area.
Fourth, we earnestly urge all of our employees to vote. Should you fail to
vote, it is almost the same as a vote for the choice you do not want and we
urge that you vote according to the dictates of your own conscience, having
in mind at all tunes what is best for you, for your family and for the com-
munity in general.
Between the hours of 3.30 P. M. and 5.30 P. M. you can go to the election
booths where you will be handed a ballot to be taken to a booth where no
one will see how you marked it After you have marked it, you will fold
it so that, again no one will see how it is marked. You yourself will deposit
it in the ballot box with the other ballots where again, no one can tell who
marked it. After the election is closed, these ballots will be counted, which
will determine whether the present relation regarding management, hours and
wages will continue or not.
On October 14, 1946, the day before the election, Wetzel made a speech to the
employees at the noon hour. He testified with reference to this speech as follows :
Why, in the first place I got advice from counsel what I was allowed to say
and I studied that pretty well and that's all I said, that no one-the first
thing I said, no one was compelled to listen, you know, they could leave now,
anyone that didn't want to listen could leave now. The next thing was there
would be an election tomorrow and that the purpose of this speech was to
urge everybody to vote, we would like very much to have everybody come
out and vote 100 percent.
Cox, who testified that "practically all the girls were there" to hear Wetzel's
speech, stated the content succinctly as follows,
He said that he had heard a lot of talk going around through the mill that
the ones that did not want a union was not going to vote and he wanted
everyone to vote because if they didn't they were might near sure to get what
they didn't want.
That's all but he repeated that twice. That's all he said.
The undersigned found Wetzel as a witness very reluctant to state frankly any
matter adverse to Respondent's interests. At times this characteristic approached
downright evasion. After considering the demeanors of witnesses Cox and Wet-
zel in the light of the entire record, the undersigned finds that Cox's statement
of the content of Wetzel's speech is substantially correct.
On election day, according to the credited testimony of Fowler, Wetzel met him
in the plant before his work time on the second shift began Wetzel suggested
that he was early and that he leave the mill. As Fowler complied, Wetzel said,
"Have you voted?" Fowler replied affirmatively. Wetzel then asked, "Did you
vote right?" Fowler rejoined, "I hope I did."
656 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD
Concluding findings
The above detailed statement shows that the Respondent through its president
and its supervisors of all ranks engaged in a studied'and persistent campaign
to impede and discourage its employees' attempt to organize and to substitute
collective for individual bargaining. In the course of this campaign the Re-
spondent questioned individual employees as to their attitude toward the Union,
their proposed vote in the impending election, and their actual vote on election
day. It persistently disparaged the Union and collective action generally, and
gave its support to an anti-union leaflet by calling it to the attention of
employees during work time. President Wetzel in his letter. sent to all em-
ployees, expressed doubts on the retention of the system of piece-rate pay-
ments prized by the employees. In his speech on the day before the election he-
urged employees of anti-union views to vote. Both Head Fixer Schuler and
Night Foreman Porter openly stated that they had canvassed large numbers-
of the employees and assured individual employees that on the basis of informa-
tion thus gained they were certain the Union would lose in the election Each
offered to back his judgment with a substantial wager. Employees were
threatened with loss of privileges if the Union became the bargaining agent.
President Wetzel, himself, through a flimsy subterfuge, promised substantial
insurance benefits as a make-weight against the Union. Respondent in its brief'
contends that the acts of supervisors set forth above were mere individual ex-
pressions of their personal opinion. Such contention has no merit since these
acts and utterances occurred in the mill during work time and were never dis-
avowed by the Respondent. Moreover they had the weighty support of President
Wetzel's similar acts and utterances. Under such circumstances the employees
must regard the supervisor's acts as expressions by the Respondent.
The undersigned notes that Respondent's employees were often little educated
and almost always inexperienced in the practice of concerted activities. Their
testimony quoted above clearly illustrates these characteristics. It is further
noted that because of their wide dispersion over a territory of 25-pule radius,
they had infreq•'wit opportunities for consultation about their union and industrial
problems. Under these conditions they were particularly susceptible to the
methods of constant argument, harassment, blandishments, and adverse sugges-
tion which the Respondent through its officers and supervisors employed in its
campaign to retain individual bargaining and defeat the move toward collective,
bargaining. By this campaign the Respondent flouted the purposes of Congress
as expressed in the preamble of the Act and deprived the employees of their guar-
anteed full freedom of action in organizing for concerted action. In most cases
the acts and utterances set forth occurred in work time.
After consideration of this evidence and of the entire record the undersigned
concludes and finds that the Respondent by these acts and the totality thereof
has interfered with, restrained and coerced its employees in the exercise of
rights guaranteed by the Act and has thereby violated Section 8 (1) of the Act.
On the same basis the undersigned further finds that this persistent and
studied campaign waged by President Wetzel and by supervisors of various
ranks made impossible the untrammeled freedom of choice in the Board's election
which the Act contemplates and which the Board's agents are obligated to main-
tain. It will therefore be recommended that the election of October 15. 19-16,
be set aside and vacated.
S Cf Matter of The Pure Oil Co , 73 N . L R. B 1 In this decision handed down
unanimohsly on March 31 , 1947, the Board, under conditions closely analogous to those
herb, found violations of Section 8 (1) and set aside and vacated a Board election
WYTHEVILLE KNITTING MILLS, INC.
C. The alleged discriminatory discharges
657
,'1. Margaret Pearl Mills was first hired by the Respondent as a looper in
1938 and her employment terminated on July 15, 1946. Her work was inter-
Tupted, as she testified, in 1940, 1943, and 1944 for periods of 4 or 5 months
by "maternity cases." Mills returned to her position in November 1945 after
the third of these "cases." She participated in the strike of June 21, 1946,
signed a union application card, and was elected as a committee member in the
Union meeting on June 24. Her position as a Union committee member was
brought to Wetzel's attention -in a ,meeting he held for the loopers and seamers
on June 26, 1946 Wetzel's credited testimony was that he had been requested
to meet with these employees on the day following the June strike but had
declined to do so since he was doubtful of the legitimacy of such a conference
-under the provisions of the Act. When the employees persisted in their request
Wetzel consulted with a local attorney and was advised that he might meet
the employees as an employer but must not "say anything against any organi-
zation," and might not "talk to a representative of any association" Governed
by this advice Wetzel, when the employees assembled, inquired whether any
union representative was present. Mills stated that she had been elected as a
member of the Union committee. Wetzel thereupon requested her to withdraw.
In his testimony Wetzel admitted knowing that Mills was the employee excluded.
The testimony of Mills with reference to her termination suggests that she
was unjustly treated in the distribution of work. The mill had recently begun
to produce stockings of finer thread, described as denier 20 as compared to the
normal denier 30. The finer thread involved greater difficulties for the loopers
and Mills' production, which had been over 100 dozens a day, fell to 80 or 85
dozens. The loopers did not work exclusively on either 20 or 30 denier but
the stockings produced of either thread were so distributed that a looper received
a proportion of each. It does not appear that Mills made complaint to anyone
in authority that she was unfairly treated in such distribution.
Prior to April or May 1946 the Respondent's supervisors had no system through
which "bad stockings" could be ascribed to individual operators Individual
production records had been maintained but "bad stockings" or "menders" had
been charged against the loopers as a group. Mills had been told of bad work
by her Forelady Hoback, on a date not definitely fixed in the record, but some-
time in May 1946 On July 15, 1946, she was summoned to Whitehurst's office
and shown the record of bad work for the preceding week On the last day
recoided she was charged with 100 bad stockings. This was the worst perform-
ance of any looper
The testimony of Mills and Whitehurst' agrees, in subatlnce, that Whitehurst
told Mills that "it would be necessary for her to improve her record or otherwise
it would be necessary for us to part company." Mills stated "that the fixer
[Housemani (lid not fix the machine properly " Whitehurst reminded her that
since no other looper had complained about such trouble, other machines had
apparently been satisfactorily fixed.' At the conclusion of the interview Mills
stated to Whitehurst, as she testified, "I would just quit and not cause him no
further trouble."
Within a day or two after this interview Wetzel's attention was called to the
fact that Mills had quit. He raised the question why so well experienced a
B Whitehnrst was called as a witness by the undersigned at the conclusion of the hearing
.i These quoted statements are from Whitehurst's unrefuted and credited testimony
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
looper should have a bad production record and in the process of investigation
called in the husband of Mills. Mr. Mills told Wetzel that his wife felt that here
bad work was due to an imperfectly adjusted machine. It further developed that
her earnings were important in the family finances since they were paying for
a home. The testimony of Mills, Wetzel, and Whitehurst agrees in stating that
Wetzel sent word to her by her husband that it she would endeavor to improve
the quality of her work she might return and choose any machine in the depart-
ment which she preferred to use Mills' testimony did not suggest that this
offer was not made in good faith. In her testimony she stated two reasons for
her failure to accept it: "I like to talk to people personally" ; and "I was afraid
because they might cause me more trouble or try to get me into trouble, especially
Mr. Whitehurst."
In this state of the record the undersigned concludes and finds that Mills quit
her employment after a routine check-up on her bad work performance with.
Personnel Manager Whitehurst. While she advanced a grievance in her testi-
mony pertaining to the distribution of difficult work, it does not appear that she
at any time made any move to bring this matter to the attention of Whitehurst
or any other supervisor. She did complain in her final interview of the alleged
failure to place her machine in good condition Thereafter she received and
rejected a bona fide offer of reinstatement the terms of which adequately met
this complaint. Under these circumstances it can not be found as the complaint
alleges, that Margaret Pearl Mills was discriminatorily discharged and thereafter
refused reinstatement. She was not discharged and she was offered reinstate-
inent. This offer was made with full knowledge of her union membership, her po-
sition as a committee woman and her concerted activities during the strike in June
1946. Accordingly it will be recommended that so much of the complaint as ad-
vances these allegations be dismissed.
2. Frances A. Cox and Nettle Ann Fowlkes
Cox was hired by the Respondent on May 21, 1946, as a se:uuer. She signed
an application for membership in the Union on June 24 , 1946 Thereafter
during the lunch hour and on the way to and from work, she urged the other
female employees to join the Union. As noted above she had frequent discussion
about the Union with her forelady , Hoback. Cox joined the strikers on October
15, 1946, and served as a picket for about 45 minutes each morning while the
employees were assembling for work.
Fowlkes was first hired by the Respondent in March 1945 as helper on a legger
machine. After about a year she was transferred to the seaming department
and became a seamer. She signed a union application on June 22 , 1946. Fowlkes
was a union observer at the election. She joined the strikers and acted as a
picket both in the morning and at the change of shifts in the afternoon. She
testified that she acted as a picket five times in all. She admitted calling the
employees who remained at work "suckers" and "scabs" and as to the second
term she explained , "Well, I don't know what it is . It is . . . they were just
against the Union and the rest of them called them that , so I did too."
Cox and Fowlkes lived some distance from the mill and were not informed
that the strike was over on Tuesday. They came to work on the next day,
Wednesday , punched in their cards , and went to their work stations about 3
minutes late. It was their credited testimony that they were greeted with the
expression "sucker." Thereupon Cox said: "Well, you all don 't have any more
backbone than a jelly fish." About 50 employees in the department left their-
WYTHEVILLE KNITTING MILLS, INC. 659
places, assembled at the front of the room and announced that they would not work
while Cox and Fowlkes remained in the factory Only 5 or 6 employees besides
Cox and Fowlkes remained at their work places. These included Nettie Ann
Fowlkes' sister, Mildred, who rode to work in the same automobile as her sister
and had come in with her.
Three of the employees who joined in this work stoppage testified as to their
motives in doing so. In addition five others were present in the hearing room,
ready to testify and it was stipulated that their testimony, had it been given,_
would have been in substantial accord wit]i that presented.1° The record shows;
that Cox and Fowlkes habitually applied offensive and opprobious epithets to.
the employees who continued at work when they passed through the picket
line." While other pickets also indulged in the use of epithets the witnesses
agreed that Cox and Fowlkes were conspicuous and outstanding in such ac-_
tions 1' The evidence clearly shows that the work stoppage in the seaming de-
partment on October 23, 1946, was a spontaneous and unplanned reaction against
Cox and Fowlkes for their conduct during the strike. As Stella Umberger, a
seamer of 9 years' service, stated the matter, "I just wasn't going to work with;
anybody that called me and my friends such names." Umberger further testified
that this was her only reason for joining in the work stoppage. Similarly Dorothy
Corvin, a seamer since 1941. when asked, "What was your reason for stopping
work that morning?" replied, "Because of the names that they called us "
Corvin stated that she acted "Instantly, on my own accord." Ruth M. Grubb,,
an employee in the seaming department for 7 years, answered the same question
by saying, "Well, because they called us such names all during the time they were,
picketing.""
Houseman was in charge of the department. He asked Cox and Fowlkes to.,
go to Whitehurst's office Schmidt had not yet arrived but was summoned by
telephone by Whitehurst and speedily came in. When the situation was ex-
plained to him he advised Cox and Fowlkes that it would be well for them to,
leave the mill until the situation "cooled off," and thereafter efforts would be
made to settle the difficulty Cox and Fowlkes thereupon left" and returned for
n further interview with Schmidt on October 28 Schmidt's testimony relative to,
this meeting is in substantial agreement with that given by Cox and Fowlkes. It
is recorded as follows.
I asked the girls you know if they talked to the other girls to get the
matter straight, you know, and they said, "Well, we talked to some of them_
and they were willing, you know. That's all." I said, Well, there is not a
thing I can do, as soon as those girls in the mill saw Cox and Fowlkes, well
they all looked around you know and then Walter [Houseman] came to me,_
10 These prospective witnesses were Elizabeth Caswell, a seamer ; Myrtle Repass, a
seamer, Beatrice Cline Lawson, an examiner ; Mrs Shirley Hurt, a looper ; and Mrs.
Willie Hurl Jackson, a shipping clerk As to these it was stipulated : If called as witnesses
and asked the sane questions as propounded to the three preceding witnesses their answers
would be substantially the sane as to what happened on the picket line , in the mill on
October 25, 1946 , and as to Mr. Houseman' s questioning them on three occasions
11 Credible witnesses listed the following German scabs, dogs , hogs , suckers, Nazi lickers.
ii It was Umberger's testimony that "other girls hollered things too, but not so bad as
they did "
13 It was Houseman's testimony that when the employees left their work place he asked
employee Martha Corvin what was going on She announced that the employees refused
to work with Cox and Fowlkes "because they called them names "
71 Mildred Fowlkes accompanied her sister but on learning that no animus existed
against her , she returned to her employment
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the girls out there wanted to know if they were going to work or not and
I told them , well, I don't know myself how we can settle that proposition.
Well then I said to [Cox and Fowlkes ] "Can't we wait a lithe bit more?"
and they started arguing about it and then she said, "Well , why can't they
go home, those other girls go home and we can work ?" I said, "Well , I'll be
damned if I will shut the mill down on account of you girls."
Both Cox and Fowlkes testified that on their inquiry whether they were dis-
charged or laid off they were assured by Schmidt that they were not and that
"he didn't have any grounds" for such action.
A union committee intervened and had two interviews with Schmidt. The
committee members made some attempts, also, seemingly ineffectually, to talk
with the employees who had objected to working further with Cox and Fowlkes.
No change in the situation resulted from their efforts
Acting under Schmidt ' s instruction , Houseman on three occasions , "two or
three weeks after [October 23, 1946] and before Christmas and around the first
or second week in March ," questioned the employees in the department involved
as to their attitude toward the return of Cox and Fowlkes He was assured by
the employees approached and reported to Schmidt, that "they would not work
with them, if they came back they would walk back out." 16 Under these condi-
tions Schmidt did not allow Cox and Fowlkes to return to work Fowlkes, on
her application, was paid a Christmas bonus . Cox had not been employed for
a sufficiently long period to entitle her to such a payment.
The Board contends that Respondent's failure to allow Cox and Fowlkes to
return to work was based on their union activities and their participation in the
strike of October 16 , 1946. Of the approximately 60 employees in the seaming
department about 25 were strikers while 35 remained at work. On October 23
about 50 employees joined the demonstration against Cox and Fowlkes while only
5 or 6 remained in their work places. No objection was raised to the return
of other strikers to their employment in the department. Some of them , includ-
ing Mildred Fowlkes, a sister of Nettie Ann Fowlkes, had engaged in picketing.
On the first day of full operation , October 22, "everything was peaceful" in the
seaming department It follows on this statement of facts, that the demonstra-
tion against Cox and Fowlkes was not based on the motives alleged in the com-
plaint but rather on their use of obnoxious and offensive epithets . Such conduct
is not it legitimate concerted activity entitled to protection under the Act. Em-
ployees who remain at work are not required to tamely submit to such treatment.
They are within their rights in refusing to work with individuals who per-
sistently engaged in such conduct during the 5 days of the October strike. The
work stoppage on October 23, 1946, was not directed against union membership
and concerted activities in behalf of purposes protected by the Act but rather
against unjustifiable and obnoxious conduct by Cox and Fowlkes while on the
p,(ket line. The demeanor and the testimony of witnesses who suffered these
indignities clearly demonstrated that the indignation aroused was deep seated
and persistent . It affected a considerable proportion of the union adherents in
the seaming department who had participated in the strike.
After consideration of the record and the demeanor of the witnesses the under-
signed finds no merit in this contention of the Board It will be recommended
accordingly that so much of the complaint as alleges discriminatory treatment
of Frances Cox and Nettie Ann Fowlkes be dismissed.
'S Umberger , Corvin, and Grubb each corroborated Houseman ' s testimony The stipula-
tion entered on the record establishes that five additional witnesses would also have done
so if questioned.
WYTHEVILLE. KNITTING MILLS, INC. 661
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, 'above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, the undersigned will recommend that it cease and desist therefrom and take
certain affirmative action found necessary to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and the entire record in the
case the undersigned makes the following :
CONCLUSIONS OF LAW
1. American Federation of Hosiery Workers, affiliated with the Congress of
Industrial Organizations, is a labor organization, within the meaning of Section
2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
4 The Respondent has not engaged in unfair labor practices by the discharge
of Margaret Pearl Mills, Frances Cox, and Nettie Ann Fowlkes.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the Respondent, Wytheville Knitting Mills, Inc., its
officers, agents, successors, officials and assigns shall :
1. Cease and desist from :
(a) Interfering with, restraining or coercing its employees in the right to
self-organization, to form, join, or assist American Federation of Hosiery
Workers, 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 and protection as
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will ef-
fectuate the policies of the Act :
(a) Post at its mill in Wytheville, Virginia, copies of the notice attached
hereto and marked "Appendix A " Copies of said notice, to be furnished by
the Regional Director for the Fifth Region, shall, after being duly signed by the
Respondent's representatives, be posted by the Respondent immediately upon
receipt thereof and be maintained by it for at least sixty (60) consecutive days
thereafter, in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Respondent to
insure that such notices are not altered, defaced, or covered by any other
material;
(b) Notify the Regional Director for the Fifth Region in writing, within ten
(10) days from the date of receipt 'of this Intermediate Report, what steps the
Respondent has taken to comply with the foregoing recommendations.
798767-49-vol 78-43
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is recommended that the'-eleetion held by the Board on October 18, 1946,
be set aside and that so much of the complaint as alleges the discriminatory
discharges of Margaret Pearl Mills, Frances Cox, and Nettie Ann Fowlkes be
dismissed.
It is further recommended that unless on or before ten (10) days from the
date of the receipt of this Intermediate Report, the Respondent notifies 'said
Regional Director in writing that he will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring the Re-
spondent to take the action aforesaid.
As provided in Section 203.39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, 'effective September 11, 1946, any party or
counsel for the Board may, within fifteen (15) days from the date of service
of the order transferring the case to the Board, pursuant to Section 203.38 of
said Rules and Regulations, file with the Board, Rochambeau Building, Wash-
ington 25, D. C., an original and four copies of a statement in writing setting
forth such exceptions to the Intermediate Report or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he
relies upon, together with the original and four copies of a brief in support
thereof; and any party or counsel for the Board may, within the same period,
file an original and four copies of a brief in support of the Intermediate Report.
Immediately upon the filing of such statement of exceptions and/or briefs, the
party or counsel for the Board filing the same shall serve a copy thereof upon
each of the other parties and shall file a copy with the Regional Director.
Proof of service on the other parties of all papers filed with the Board shall be
promptly made as required by Section 203.65. As further provided in said Sec-
tion 203.39, 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.
CHARLES E. PERSONS,
Trial Examiner.
Dated June 23, 1947.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce our employ-
ees in the exercise of their right to self-organization, to form labor organiza-
tions, to join or assist AMERICAN FEDERATION OF HOSIERY WORKERS, C. I. 0., 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. All our employees
are free to become or remain members of this union, or any other labor
organization.
WYTHEVILLE KNITTING MILLS, INC.,
Employer.
Dated ----------------------- By --------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.