Petition — National Labor Relations Board v. Decaturville Sportswear Co.

Supreme Court brief1975

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In the Supreme Court of the United States

OCTOBER TERM, 1975

NATIONAL LABOR RELATIONS BOARD, PETITIONER

Vv.

DECATURVILLE SPORTSWEAR Co., INC., et al.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

ROBERT H. BORK,

Solicitor General,

Department of Justice,

Washington, D.C. 20530.

JOHN C. MILLER,

Acting General Counsel,

JOHN S. IRVING,

Deputy General Counsel,

NORTON J. COME,

Deputy Associate General Counsel,

PAUL ELKIND,

Assistant General Counsel,

MARION GRIFFIN,

Attorney,

National Labor Relations Board,

Washington, D.C. 20570.

INDEX

Page

Opinions below -.------------—-----------------------— 1

Jurisdiction —........._-.---------—------------------------- 2

Question presented —_-------------------------—----------- 2

Statutes involved ........--------------------------------------- 2

Statement _............---------------------—--—————--——-—-—————-—- 4

A. The prior unfair labor practice pro-

ceeding .......----------------------------------

B. The contempt proceeding ----.-....--------

1. The findings and conclusions of

the Special Master ---_---.--.------- 5

2. The decision of the court of ap-

peals __.....--------------------------------—- 11

Reasons for granting the writ —----...--------. 12

Concduia ——————$ 20

Appendix A ——-----------—---——----—----—----—---—-—- la

Appendix B -_...--.------------------------------— 5a

Appendix C -........----------------—------------------—- Ta

Appendix D -.........----------------------------------------- 88a

Appendix E _.........---------------------------—---------- 100a

Appendix F -__....------------—---—------------------------ 102a

CITATIONS

Cases:

Albermarle Paper Co. v. Moody, No. 74-

389, decided June 25, 1975 19

Amalgamated Utility Workers v. Consoli-

dated Edison Co., 309 U.S. 261 —----- 18

II tl

Cases—Continued Page Cases—Continued Page

General Drivers & Helpers Union, Local

National Labor Relations Board v. Frick

“ ee S| ee ee 16

662 v. National Labor Relations Board, National Labor Relations Board v. Globe

302 F. 2d 908, certiorari denied sub Wireless, 193 F. 2d 748 16

nom. Rice Lake Creamery Co. v. Gen- National Labor Relations Board v. Hanes

eral Drivers & Helpers Union, Local Hosiery Division, 418 F. 2d 457 —...... 14, 15

No. 662, 371 U.S. 827 —___ 15 National Labor Relations Board v. Hop-

Hugh H. Wilson Corp. v. National Labor wood Retinning Co., 104 F. 2d 302 __.. 18

Relations Board, 414 F. 2d 1345, cer- National Labor Relations Board v. Inter-

tiorari denied, 397 U.S. 935 —.. 15 national Van Lines, 409 U.S. 48 ____. 16

Maggio v. Zeitz, 333 U.S. 56 seoseoseceocsoceosons 20 National Labor Relations Board v. John

Mastro Plastics Corp. v. National Labor S. Swift Co., 277 F. 2d 641 16

Relations Board, 350 iF SS | ae 17 National Labor Relations Board v. Local

National Labor Relations Board v. Adam 282. Teamsters. 412 F. 2d 334, cer-

Loos Boiler Works Co., 435 F. 2d 707 _ 14 aaa denied 396 U.S 1038 14

National Labor Relations Board v. Ameri- National Labor ‘Rcietinne Board 2. Leeds

can Mfg. Co. of Texas, 351 F.2d 74.. 14 ville Chair Co., 385 F. 2d 922, cer-

National Labor Relations Board v. Ayer tiorari denied. 390 U.S. 1013 atts et. 15

Lar Sanitarium, 436 F. if ener - 14 National Labor Relations Board v. May-

National Labor Relations Board v. Cast rath Co., 319 F. 2d 424 16

Optics Corp., 458 F. 2d 398, certiorari National Labor Relations Board v. Mexia

denied, 409 U.S. 850 15 Textile Mills, 339 U.S. 563 18

National Labor Relations Board yv. Dun- National Labor Relations Board v. Prince-

can Foundry and Machine Workes, Inc., ton Inn Co., 424 F. 2d 264. 14

435 F. 2d 612 ....... aaoscosectectesonsoneenenecnsaas 16 National Labor Relations Board v. Rober ts

National Labor Relations Board v. Elec- & Sons, Inc., 451. F. 2d 941 _.. 14

en Steam Radiator Corp., 321 F. 2d i National Labor Relations Board v. Sea-

sannnanscecen-scenesnnenaescnecccsncenencecssnnecsannscnnnnes Land Service Inc., 356 F. 2 . -

National Labor Relations Board vy. Elias reset y hearse ‘ons U.S. a venauatd 15

Bros. Restaurants, 496 F. 2d 1165 __ 14,15 National Labor Rictlons Board <, South.

National Labor Relations Board v. Fitz- western Porcelain Steel Corp., 317 F. 2d

gerald Mills Corp., 313 F. 2d 260, cer- 2 epneenamalieiatmnatiaa a 16

tiorari denied, 375 U.S. Fa 15 National Labor Relations Board v. Tom

National Labor Relations Board v. Fleet- Wood Pontiac. Inc., 447 F. 2d 383 14

wood Trailer Co., 389 U.S. 375 16-17 ai ) -

Cases—Continued Page Cases—Continued Page

National Labor Relations Board v. War- an 2,16

ren Co., 350 U.S. 107, reversing 214 3,4

ee FF eee nntitaietesaaa 12, 13, 17, 18 a nsensemiannannnmiemansas 3,4

National Labor Relations Board v. Wash- Te 3

ington Aluminum Co., 370 U.S. 9... 15,17

National Labor Relations Board v. West

Side Carpet Cleaning Co., 329 F. 2d

(| aa 14

National Labor Relaitons Board v. Whitin

Machine Works, 204 F. 2d 883 - 14

National Labor Relations Board v. Woos-

ter Division of Borg-Warner Corp., 236

F. 2d 898, modified on other oa

356 U.S. 342 . 7 15

Parker v. United States, 153 KF. od 66 18

Phillips v. Martin Marietta Corp., 400

U.S. 542 . = 15

Ridgely Mfg. Co. v. National ‘Labor ‘Re-

lations Board, 509 F. 2d 185 - 16

S. A. Healy Co. v. National Labor Rela-

tions Board, 435 F. 2d 314... 14-15

San Antonio Machine & Supply Corp. v.

National Labor Relations Board, 363

rw es ................. ee 15

Singer Co. v. Nat‘onal Labor ‘Relations

Board, 429 F. 2d 172 14

Union Tool Co. v. Wilson, 259 US. 107 19

Wirtz v. Ocala Gas Co., 336 F. 2d 236 _ 18

Statute:

National Labor Relations Act, as amended

(61 Stat. 136, 73 Stat. 519, 29 U.S.C.

See. 161, 66 BOG.) —-nnccenccce 2

Ju the Supreme Court of the United States

OCTOBER TERM, 1975

No.

NATIONAL LABOR RELATIONS BOARD, PETITIONER

Vv.

DECATURVILLE SPORTSWEAR Co., INC., et al.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

The Solicitor General, on behalf of the National

Labor Relations Board, petitions for a writ of cer-

tiorari to review the judgment of the United States

Court of Appeals for the Sixth Circuit dismissing,

in substantial part, the Board’s petition for civil

contempt.

OPINIONS BELOW

The opinion of the court of appeals in the instant

contempt proceeding (Pet. App. A, pp. la-4a) is not

yet officially reported. The findings and conclusions

of the Special Master, which were adopted by the

court of appeals, are set out in two memoranda and

(1)

reproduced, infra (Pet. App. C, pp. 7a-87a). The

opinion of the court of appeals (Pet. App. D, pp.

88a-99a), pursuant to which the decree enforcing

the Board’s order was entered (Pet. App. E, pp.

100a-101a), is reported at 406 F. 2d 886. The un-

derlying decision and order of the Board (Pet. App.

F, pp. 102a-124a) are reported at 166 NLRB 703.

JURISDICTION

The judgment of the court of appeals (Pet. App.

B, pp. 5a-6a) was entered on May 23, 1975. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTION PRESENTED

Whether the requirement that civil contempt must

be established by “clear and convincing evidence”

permits a court of appeals in a contempt proceeding

to apply to established facts substantive criteria dif-

ferent from those which it would have applied in a

proceeding to enforce the Board’s order.

STATUTES INVOLVED

The relevant provisions of the National Labor Re-

lations Act, as amended (61 Stat. 136, 73 Stat. 519,

29 U.S.C. 151, et seg.), are as follows:

Sec. 7. Employees shall have the right to

self-organization, to form, join, or assist labor

organizations, to bargain collectively through

representatives of their own choosing, and to en-

gage in other concerted activities for the pur-

pose of collective bargaining or other mutual

aid or protection, and shall also have the right

to refrain from any or all of such activities * * *.

Sec. 8(a) It shall be an unfair labor practice

for an employer—

(1) to interfere with, restrain, or coerce em-

ployees in the exercise of the rights guaranteed

in section 7;

7 > ” . =

(3) by discrimination in regard to hire or

tenure of employment or any term or condition

of employment to encourage or discourage mem-

bership in any labor organization: * * *.

* = * * -

Sec. 10(e) The Board shall have power to pe-

tition any court of appeals of the United States,

* * * within any circuit * * * wherein the un-

fair labor practice in question occurred or

wherein such person resides or transacts busi-

ness, for the enforcement of such order and for

appropriate temporary relief or restraining or-

der, and shall file in the court the record

in the proceedings, as provided in section

2112 of title 28, United States Code. Upon the

filing of such petition, the court shall cause

notice thereof to be served upon such person,

and thereupon shall have jurisdiction of the pro-

ceeding and of the question determined therein,

and shall have power to grant such temporary

relief or restraining order as it deems just and

proper, and to make and enter a decree enforc-

ing, modifying, and enforcing as so modified, or

setting aside in whole or in part the order of

the Board. No objection that has not been urged

before the Board, its member, agent, or agency,

shall be considered by the court, unless the fail-

ure or neglect to urge such objection shall be

excused because of extraordinary circumstances.

The findings of the Board with respect to ques-

tions of fact if supported by substantial evi-

dence on the record considered as a whole shall

be conclusive. * * *

STATEMENT

A. The Prior Unfair Labor Practice Proceeding

In the original unfair labor practice case, the

Board found that Marlene Industries Corporation and

its manufacturing subsidiaries’ (referred to jointly

as “the Company”)—in an effort to combat an or-

ganizational campaign at their seven plants by the

International Ladies’ Garment Workers’ Union, AFL-

CIO (the Union)—engaged in numerous acts of re-

straint and coercion in violation of Section 8(a) (1)

of the Act, and discriminatorily discharged or re-

fused to recall seventeen named employees in viola-

tion of Section 8(a)(3) and (1) of the Act (Pet.

App. D, pp. 92a-95a). The Board ordered the Com-

pany to cease and desist from the unfair labor prac-

tices found and from in

any other manner interfering with, restraining,

or coercing employees in the exercise of their

right to self-organization, * * * to join or assist

* * * (the Union] or any other labor organiza-

tion, * * * and to engage in other concerted ac-

tivities for the purpose of collective bargaining

1 Decaturville Sportswear Co. is one of those subsidiaries.

or other mutual aid or protection, and to refrain

from any or all such activities [Pet. App. F,

p. 116a].

The Board also ordered the Company, inter alia, to

reinstate with backpay the seventeen discriminatees,

to give the Union access to plant bulletin boards for a

year, and to provide an opportunity for union or-

ganizers to communicate with employees during non-

working time in specified non-working areas of the

plants for six months (id. at 116a-118a).

The court of appeals found that substantial evi-

dence supported the Board’s findings and enforced

its order in all relevant respects (Pet. App. D, pp.

88a-99a; Pet. App. E, pp. 100a-101a)."

B. The Contempt Proceeding

1. The findings and conclusions of the Special Master

Thereafter, alleging that the Company had failed

to comply with the enforcement decree, the Board pe-

ticioned the court of appeals to adjudge the Company

in civil contempt. The court referred the matter to a

Special Master, the Honorable Harry W. Wellford,

United States District Judge for the Western Dis-

trict of Tennessee. After a hearing, the Special

Master issued two memoranda which, in relevant

2 Only the provision of the order directing the Company to

furnish the Union with employee names and addresses was

denied enforcement (Pet. App. D, pp. 98a-99a; Pet. App. E,

pp. 100a-101a).

part, contained the following findings and con-

clusions: *

a. In the spring of 1969, as a result of eniorce-

ment of the Board’s order, which, inter alia, afforded

the Union access to the Company’s parking lots and

bulletin boards, the Union, which had been attempt-

ing to organize the Company’s employees since 1965,

intensified its organizational efforts (Pet. App. C,

p. 12a). When the Union’s renewed campaign began,

some of the pressers at the Decaturville plant be-

came active on behalf of the Union within the plant,

discussing organization during lunch and break per-

iods during 1969 and 1970 (id. at 36a-37a). On June

23, 1970, the Company adopted a work change in

the pressing department that in effect required

pressers, who were on a piece rate, to perform at no

additional pay the functions of quality control in-

spectors on their own work (id. at 33a-36a). Em-

ployee Nelson Rushing, the senior man in the press-

ing department, and a number of other pressers

protested this change to their supervisor (7bid.).

Shortly thereafter, the supervisor informed Rush-

ing and the other pressers +hat Plant Manager An-

derson wanted to see them in his office (Pet. App. C,

p. 35a). One of the pressers, Hancock, stated that

he did not want to go to the office because he had

been there before and had accomplished nothing. Han-

2 The Special Master sustained the Board’s petition in a few

respects (Pet. App. C, pp. 47a-48a, 69a-72a). Since that part

of the case is not in issue here, the findings and conclusions

relative thereto are not detailed in the Statement.

cock proposed instead that Anderson come and dis-

cuss the issue with the pressers (id. at 35a-36a).

The supervisor left and most of the pressers went

to the lunchroom on their break. While the break

was still in progress, Anderson entered the lunch-

room accompanied by a supervisor and the personnel

director. Anderson asked to see Rushing in his

office. Rushing refused to go, because he said the

issue concerned all the pressers and because he feared

being discharged in a private interview. The Com-

pany thereupon discharged Rushing (id. at 36a).

Most of the pressers immediately expressed sup-

port for Rushing and, protesting the decision to dis-

charge him, told Anderson that if Rushing was fired,

they might as well all be fired (Pet. App. C, p. 38a).

The Company then gave the approximately 50

pressers their final checks and their termination slips,

which reflected that they had been discharged for in-

subordination (id. at 39a).

On the above facts, the Special Master found that

Rushing had been discharged “both for his concerted

activity with others in the pressing department, which

activity he initiated, but also for his public and

adamant refusal to meet with the company plant

manager to discuss the problem and complaint” (Pet.

App. C, p. 36a). The Master found that the other

pressers had been discharged “because they collec-

tively protested the discharge of Nelson Rushing

and refused to receive work under the conditions in

existence in the pressing department” (id. at 39a).

Despite those findings, the Master concluded that

Rushing’s discharge was not a violation of the court’s

decree because Rushing “was discharged for just

cause, even though Rushing was also protesting what

he believed was unfair,” and because the “Company’s

actions surrounding his discharge were not shown to

have been prompted essentially by any anti-union

considerations” (id. at 48a-49a). The Master further

concluded that the other pressers were “not justified

in their demands that Rushing be reinstated or re-

hired * * * before they would return to work” and

that they “were not discharged by the Company un-

reasonably under the circumstances, despite anti-

union sentiment on the part of the Company” (id.

at 49a).

b. Immediately after the Company discharged

Rushing and the other pressers, picketing began at

the Decaturville plant, with the Union’s support and

assistance. The picket signs stated that the em-

ployees were “on strike against [the Company] for

unfair labor practices” (Pet. App. C, pp. 41a-42a).

The next day, June 24, 1970, the Company addressed

a letter to each of the pressers, except Rushing, of-

fering “full and immediate reinstatement,” provided

that the pressers abandoned the strike and reported

for work by a specified date (id. at 43a). Some of

the pressers returned to work; others did not and

continued to picket outside the Decaturville plant

(ibid.). The Special Master concluded (id. at 49a)

that, even if

the Company acted improperly, unlawfully or

unreasonably in discharging the pressers other

than Nelson Rushing * * * for engaging in a

concerted work stoppage, they should not now

in equity be entitled to reinstatement since the

Company offered to them full reinstatement on

June 24, 1970, by letter which most chose to

ignore or to decline.

Most of the other employees at the Decaturville

plant, on and after June 26, 1970, joined the strike

precipitated by the discharge of the pressers.* The

Special Master found that they were striking “in

protest of the discharges of the employees of the

pressing department * * * and also in support of the

Union’s organizational efforts there” (Pet. App. C,

p. 44a).° Thereafter, the Company denied reinstate-

ment to strikers Judy Scott Maness and Peggy

Cagle, and failed to rehire Ruth Bradley Campbell

and Evelyn Phillips (id. at 48a).

The Special Master concluded that it was not un-

lawful or violative of the court’s decree for the Com-

pany “to replace striking employees with others in

‘The Company subsequently sent letters to these employees,

directing them to return to work by a specified date (Pet.

App. C, p. 43a). Strikers who returned after the deadline

set in the letters were required to fill out new employment

applications and to return as new employees at the bottom of

the seniority list (id. at 43a-44a).

5’ The Special Master also found that “All employees who

went out on strike in protest of Rushing’s discharge, claiming

such to be an unfair labor practice, were in fact eco-

nomic strikers as well as unfair labor practice strikers,” and

that the strike, while “essentially economic in its nature,” had

“eonnotations of concerted activity protected by the National

Labor Relations Act” (Pet. App. C, pp. 49a-50a).

an effort to carry on its business” (Pet. App. C, p.

51a). Accordingly, “all that the Company should be

required to do with those strikers (pressers and

others) who had not otherwise been terminated for

just cause * * * and who did seek re-employment”

is to reemploy them upon their unconditional applica-

tion “as and when there were vacancies” (ibid.).

The Special Master further concluded that, although

“there was substantial evidence to show that the

Company refused” to rehire job applicants Campbell

and Phillips and to reinstate strikers Maness and

Cagle “because of their Union proclivities,” no viola-

tion of the decree was established because “there was

also substantial evidence to show other sound and

justifiable business reasons for the decision not to

take these employees back” (id. at 48a).°

c. In July 1970, strikes occurred at the Company’s

Loris and Frisco plants (Pet. App. C, pp. 68a, 78a).

The Special Master found that, while the strikes at

the Loris and Frisco plants were called and main-

tained in support of the Decaturville strike (ibid.),

the Company’s refusal to reinstate strikers Brice

Todd and Robert Stephens upon their unconditional

offers to return to work at the Loris plant did not

¢The Special Master recommended that the Company be

required to offer the strikers who had made unconditional

applications for reemployment reinstatement to substantially

equivalent jobs, “as and when such positions become avail-

able,” with “restoration of seniority rights to the date of

their termination in June 1970” (Pet. App. C, pp. 60a-61a).

He also recommended that a similar offer be made to Maness

and Cagle (id. at 59a-60a).

violate the decree because “Todd and Stephens joined

the pickets in front of the company’s Loris plant in

an effort to get a union into the plant, as well as to

protest what they considered unfair or unjust prac-

tices”; moreover, Todd and Stephens had been re-

placed before they made their offers to return (id.

at 73a). The Master also found that the Company’s

refusal to reinstate strikers Randy Montgomery and

Sandra Matchett upon their application to return to

work at the Frisco plant did not violate the decree

because they joined the strike “for economic reasons

primarily rather than the subordinate claim or pro-

test of an unfair labor practice” (id. at 82a).’

2. The decision of the court of appeals

The court of appeals adopted all of the Special

Master’s findings, conclusions, and recommendations

(Pet. App. A, p. 4a). It stated (id. at 3a-4a):

The Special Master’s mere mention of imper-

missible motives possibly playing some role in

the dismissal of Rushing and other employees

hardly rises to the level of clear and convincing

evidence of impermissible dismissals justifying

a finding of civil contempt. A contempt proceed-

ing is a setting very different from a normal

The Master also relied on the four employees’ failure to

abandon the strike by the deadline specified in Company

letters directing them to return to work (Pet. App. C, pp. 73a,

78a, 82a), and on the failure of Montgomery and Matchett

“to advise management of the nature of their grievances con-

cerning any alleged unfair labor practice” before they joined

the strike (id. at 82a).

proceeding for the enforcement of a Board or-

der. The burden imposed by the clear and con-

vincing evidence standard is heavy. The Board

has failed to demonstrate that the Special Mas-

ter erred in his findings or conclusions.

REASONS FOR GRANTING THE WRIT

The decision below is contrary to this Court’s de-

cision in National Labor Relations Board v. Warren

Co., 350 U.S. 107, and, if left standing, would ser-

iously weaken the administration of the National

Labor Relations Act.

The court of appeals in this case had upheld the

Board’s findings that the Company had committed

certain unfair labor practices, and had granted the

Board’s petition for enforcement in substantial part

(Pet. App. D, pp. 88a-99a). Yet, on the Board’s

subsequent petition to have the Company held in

civil contempt for failure to comply with the court’s

enforcement order, the court applied standards dif-

ferent from those applicable in an enforcement pro-

ceeding. The court justified its departure from es-

tablished principles on the ground that “[a] con-

tempt proceeding is a setting very different from a

normal proceeding for the enforcement of a Board

order”; it stated that the “clear and convincing evi-

dence” test places a heavier burden on the Board in

a civil contempt proceeding than in an enforcement

proceeding (Pet. App. A, p. 4a). These conclusions,

we submit, cannot be squared with this Court’s de-

cision in Warren.

In Warren, the Court held that where there is

“clear and convincing” evidence that the court’s en.

forcement order has been violated, as there is here,

“it is the statutory duty of the Court of Appeals

on petition of the Board to adjudge [the employer |

in contempt of its enforcement decree” (350 U.S. at

112). Moreover, because the same substantive prin-

ciples apply at both the enforcement and contempt

stages and because “the court is required to grant

enforcement of the Board’s order” at the enforce-

ment stage if “the Board has acted properly within

its designated sphere,” this Court made clear in War-

ren that “[t]he granting or withholding of such

remedial action [contempt] is not wholly discretion-

ary with the court” (id. at 112-113).

1. The Special Master found that Nelson Rush-

ing was discharged in part because of concerted ac-

tivity; that some 50 pressers at the Decaturville

plant were discharged for striking over Rushing’s

discharge and their own working conditions; that

various job applicants and strikers were denied re-

employment or reinstatement at Decaturville in part

because of their union proclivities; and that strikers

at the Loris and Frisco plants were denied rein-

statement following their participation in strikes

called to support the strike at the Decaturville plant

(supra, pp. 7-11). Having approved these findings

as supported by the evidence, the court of appeals

should have rejected the Master’s conclusions that

this Company conduct did not constitute violations

of the decree, which, inter alia, barred the Company

from restraining or coercing “employees in the exer-

cise of their right * * * to engage in * * * con-

certed activities for the purpose of collective bar-

gaining or other mutual aid or protection” (supra,

pp. 4-5).

The Master’s conclusions rest on the assumption

that an employer may lawfully discriminate against

employees for an impermissible reason if he also has

a valid reason for his action. But this is not the

law. As the Sixth Circuit and other circuits have

recognized: “It is not necessary that a prohibited

reason be the sole one. If the discharge is moti-

vated in part by activities protected by the Na-

tional Labor Relations Act it is a violation of Sec-

tion 8(a)(1).” National Labor Relations Board v.

Elias Bros. Restaurants, 496 F.2d 1165, 1167.° It

® Accord: National Labor Relations Board v. Electric Steam

Radiator Corp., 521 F. 2d 733, 738 (C.A. 6); National Labor

Relations Board v. West Side Carpet Cleaning Co., 329 F. 2d

758, 761 (C.A. 6); National Labor Relations Board v. Adam

Loos Boiler Works Co., 435 F. 2d 707 (C.A. 6); National

Labor Relations Board V. Whitin Machine Works, 204 F. 2d

883, 885 (C.A. 1); National Labor Relations Board V. Roberts

& Sons, Inc., 451 F. 2d 941, 945 (C.A. 2); National Labor Rela-

tions Board Vv. Local 282, Teamsters, 412 F. 2d 334, 336-337

(C.A. 2), certiorari denied, 396 U.S. 1038; National Labor

Relations Board v. Princeton Inn Co., 424 F. 2d 264, 265

(C.A. 3); National Labor Relations Board v. Hanes Hosiery

Division, 413 F. 2d 457, 458 (C.A. 4); National Labor Rela-

tions Board v. American Mfg. Co. of Texas, 351 F. 2d 74,

79 (C.A. 5); National Labor Relations Board v. Tom Wood

Pontiac, Inc., 447 F. 2d 383, 886 (C.A. 7); Singer Co. Vv. Na-

tional Labor Relations Board, 429 F. 2d 172, 179 (C.A. 8); Na-

tional Labor Relations Board V. Ayer Lar Sanitarium, 436

F. 2d 45, 50 (C.A. 9); S.A. Healy Co. v. National Labor Rela-

is also settled that a strike caused hy unfair labor

practices is an unfair practice strike even if it also

has economic objectives.*

From these principles, it follows that the Company

violated the Act and the court’s decree by discharg-

ing Rushing in part because of his concerted pro-

test over working conditions,” and that its discharge

of the other pressers for concertedly protesting Rush-

tions Board, 43% F. 2d 314, 316 (C.A. 10). Cf. Phillips V.

Martin Mariette Corp., 400 U.S. 542.

* National Labor Relations Board v. Wooster Division of

Borg-Warner Corp., 236 F. 2d 898, 907 (C.A. 6), modified on

other grounds, 356 U.S. 342; National Labor Relations Board

v. Louisville Chair Co., 385 F. 2d 922, 929 (C.A. 6), certiorari

denied, 390 U.S. 1013; N ational Labor Relations Board V. Sea-

Land Service, Inc., 356 F. 2d 955, 966 (C.A. 1), certiorari de-

nied, 385 U.S. 900; National Labor Relations Board V. Fitz-

gerald Mills Corp., 313 F. 2d 260, 269 (C.A. 2), certiorari de-

nied, 375 U.S. 834; National Labor Relations Board v. Cast

Optics Corp., 458 F. 2d 398, 407 (CA. 3), certiorari denied, 409

U.S. 850; San Antonio Machine & Supply Corp. V. National

Labor Relations Board, 363 F. 2d 633, 641 (C.A. 5); General

Drivers & Helpers Union, Local 662 V. National Labor Rela-

tions Board, 302 F. 2d 908, 911 (C.A.D.C.), certiorari denied

sub nom. Rice Lake Creamery Co. v. General Drivers &

Helpers Union, Local No. 662, 371 U.S. 827.

1° Rushing’s discharge for engaging in concerted activities,

protected by Section 7 of the Act, was unlawful without regard

to whether the discharge was “prompted essentially by any

anti-union considerations” (supra, Pp. 8). See National Labor

Rc'ations Board v. Washington Aluminum Co., 370 U.S. 9,

12-13; National Labor Relations Board v. Elias Bros. Restau-

rants, supra, 496 F. 2d at 1167; Hugh H. Wilson Corp. V.

National Labor Relations Board, 414 F. 2d 1345, 1347-1348

(C.A. 3), certiorari denied, 397 U.S. 935; National Labor

Relations Board v. Hanes Hosiery Division, supra, 413 F. 2d

at 458.

ing’s discharge and their own working conditions

was also unlawful." Employees who joined the strike,

called to protest the Company’s unlawful discharges,

became unfair labor practice strikers entitled to full

reinstatement upon their unconditional applications

for work. By denying full reinstatement to such

strikers, and by refusing to reemploy job applicants,

in part because of their union proclivities, the Com-

pany further violated both the Act and the decree.”

11 Even if Rushing had been discharged for good cause, a

strike by the other pressers to secure his reinstatement would

have been protected by Section 7 of the Act, and thus their

discharge for striking would have violated the Act and the

decree. See National Labor Relations Board V. International

Van Lines, 409 U.S. 48, 52-53; National Labor Relations

Board v. John S. Swift Co., 277 F. 2d 641, 646 (C.A. 7);

National Labor Relations Board v. Globe Wireless, 193 F. 2d

748, 750 (C.A. 9).

12 The Company’s offers of reinstatement manifestly were

not full and unconditional since they were conditioned on the

employees’ ceasing to exercise their statutorily protected right

to strike, and employees who returned after the deadline

specified by the Company were denied their seniority. See

National Labor Relations Board v. Southwestern Porcelain

Steel Corp., 317 F. 2d 527, 531-532 (C.A. 10); Ridgely Mfg.

Co. v. National Labor Relations Board, 509 F. 2d 185, 188

(C.A.D.C.). See also National Labor Relations Board v. May-

rath Co., 319 F.2d 424, 428 (C.A. 7); National Labor Relations

Board v. Frick Co., 397 F. 2d 956, 961 (C.A. 3); National

Labor Relations Board v. Duncan F oundry and Machine

Works, Inc., 435 F. 2d 612, 618 (C.A. 7). Moreover, the Com-

pany had no legitimate business reason for subsequently deny-

ing reinstatement to strikers when they applied after the pur-

ported deadline. As unfair labor practice strikers, the em-

ployees were entitled to reinstatement without regard to

whether the Company had hired replacements. National Labor

9 The court of appeals purperted to justify its

refusal to apply these principles here on the ground

that the “clear and convincing” evidentiary test im-

poses a more stringent burden on the Board in civil

contempt proceedings than that imposed in a pro-

ceeding to enforce an order of the Board. However,

that test applies only in determining whether cer-

tain facts have been established; it does not license

the court in a contempt proceeding to apply to facts

which have been established by clear and convincing

evidence, different substantive principles than it would

in a proceeding to enforce the Board’s order. This

Court so held in National Labor Relations Board v.

Warren Co., 350 U.S. 107, reversing 214 F.2d 481

(C.A. 5).

In Warren, the court of appeals had held that,

while “a respondent may not show as a defense in

an enforcement proceeding that the union has lost its

majority,” this principle has “no application in a

contempt proceeding to which entirely different con-

siderations apply.” 214 F. 2d at 485. This Court dis-

agreed, holding that it was “the statutory duty of the

Court of Appeals on petition of the Board to adjudge

[the employer] in contempt of its enforcement de-

cree.” 350 U.S. at 112. “To conclude otherwise would

Relations Board Vv. F leetwood Trailer Co., 389 U.S. 375, 379,

n. 5; Mastro Plastics Corp. v. National Labor Relations Board,

950 U.S. 270, 278. Finally, the Master erred in suggesting

that certain strikers lost the protection of the Act by failing

to give advance notice of the causes for their protest. See

National Labor Relations Board Vv. Washington Aluminum

Co,. supra, 370 U.S. at 13-15.

greatly weaken the administration of the National

Labor Relations Act” (ibid.).

-n the instant case, the Company’s conduct, which

was established by clear and convincing evidence,

violated the Act and the decree under the substantive

principles applicable in proceedings to enforce an

order of the Board. Thus, under Warren, it was the

“statutory duty” of the court of appeals to adjudge

the Company in civil contempt for violating its

decree.

8. It is important to the administration of the

Act that the error of the court of appeals be promptly

corrected. As indicated by this Court in Warren,

the National Labor Relations Act, like comparable

regulatory statutes, depends for its effective enforce-

ment upon the exercise by the courts of appeals of

their contempt powers. A Board order is not en-

forced until it is actually obeyed (Amalgamated

Utility Workers v. Consolidated Edison Co., 309 U.S.

261, 269-270), and Congress clearly relied upon the

remedy of contempt as the ultimate sanction to

secure obedience (National Labor Relations Board v.

Mexia Textile Mills, 339 U.S. 563, 569). As the

Court stated in Warren (350 U.S. at 112-113):

[The National Labor Relations] Act contem-

plates cooperation between the Board and the

13 Accordingly, “[t]he filing of a civil contempt petition is

not to be regarded as the institution of an independent pro-

ceeding but as a part of the original cause.” Wirtz Vv. Ocala Gas

Co., 336 F. 2d 236, 243 (C.A. 5). Accord: Parker v. United

States, 153 F. 2d 66, 70 (C.A. 1); National Labor Relations

Board Vv. Hopwood Retinning Co., 104 F. 2d 302, 305 (C.A. 2).

Courts of Appeals both at the enforcement and

the contempt stages in order to effectuate its

purposes. It consigns certain statutory func-

tions to each, and where the Board has acted

properly within its designated sphere, the court

is required to grant enforcement of the Board’s

order. The decree, like the order it enforces,

is aimed at the prevention of unfair labor prac-

tices, an objective of tw Act, and so long as

compliance is not forthcoming that objective is

frustrated. It is for this reason that Congress

gave the judicial remedy of contempt as the

ultimate sanction to secure compliance with

Board orders. The granting or withholding of

such remedial action is not wholly discretionary

with the court. This is true not only under the

National Labor Relations Act but also under

general principles of equity jurisprudence. [ Foot-

notes omitted. |

Where, as here, the facts establish a continuing

course of unfair labor practices covered by the terms

of the court’s decree, the withholding by the court of

appeals of appropriate relief is an abuse of dis-

cretion. For, in determining whether a decree has

been violated, “legal discretion * * * does not extend

to a refusal to apply well-settled principles of law

to a conceded state of facts.” Union Tool Co. v. Wil-

son, 259 U.S. 107, 112. See, also, Albemarle Paper Co.

v. Moody, No. 74-389, decided June 25, 1975, slip

op., p. 9. The denial of the contempt sanction in

circumstances such as those here subverts the en-

forcement decree, and thus undermines the statutory

structure for preventing unfair labor practices at

its crucial contempt stage—contrary to this Court’s

decision in Warren and its admonition in Maggio

v. Zeitz, 333 U.S. 56, 69, that the contempt remedy

for noncompliance with a court order should not be

withheld on grounds that would serve “to foster ex-

perimentation with disobedience.”

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

ROBERT H. BORK,

Solicitor General.

JOHN C. MILLER,

Acting General Counsel,

JOHN S. IRVING,

Deputy General Counsel,

NoRTON J. COME,

Deputy Associate General Counsel,

PAUL ELKIND,

Assistant General Counsel,

MARION GRIFFIN,

Attorney,

National Labor Relations Board.

AucustT 1975.

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 18,064, 18,154, 18,249, 18,250, 18,256

NATIONAL LABOR RELATIONS BOARD, PETITIONER

DECATURVILLE SPORTSWEAR Co., INC., ET AL.,

RESPONDENTS

Decided and Filed May 23, 1975

ON ORDER OF REFERENCE PURSUANT TO

PETITION TO ADJUDGE RESPONDENTS IN

CIVIL CONTEMPT AND FOR OTHER CIVIL

RELIEF

Before: CELEBREZZE, PECK and LIVELY, Circuit

Judges.

PER CURIAM. Petitioner originally brought this

action in September 1971, seeking to have Respond-

ents held in civil contempt for failure to comply with

this Court’s judgment in Decaturville Sportswear Co.

v. NLRB 406 F.2d 886 (6th Cir. 1969). That judg-

ment granted enforcement of a Board order requir-

ing Respondents to cease and desist from unfair

labor practices in connection with ongoing unioniza-

tion activity at Respondents’ various clothing manu-

facturing plants. By order of this Court the matter

was referred to a Special Master, the Honorable

Harry W. Wellford, United States District Judge for

the Western District of Tennessee.

The case has now returned to this Court on ex-

ceptions taken by both the Board and Respondents

to the findings of fact, conclusions of law and recom-

mendations of the Special Master, as set out in two

lengthy memorandums, dated October 5, 1973, and

June 12, 1974. The Board accepts the Special Mas-

ter’s findings of fact but challenges a number of his

conclusions of law. Respondents, for the most part,

challenge a number of the Special Master’s findings

of fact as clearly erroneous.

Briefly summarized, the situation out of which this

dispute arose is as follows. On June 23, 1970, Nelson

Rushing, an employee in the pressing department otf

the Decaturville, Tennessee plant, was discharged.

The master concluded that he was discharged because

of insubordination. The Board contends that Rush-

ing’s union proclivities were at least part of the rea-

son for Rushing’s discharge.

Rushing’s discharge prompted a walkout of ap-

proximately fifty fellow pressers. These employees

were then discharged. However, the Company sent

each a letter the following day offering full reinstate-

ment. The Special Master concluded that the presser’s

were not justified in demanding that Rushing be re-

instated and therefore their discharge was also not

improper. The Special Master noted that in light

of the reinstatement offer equity would not dictate

reinstatement even if the employees had been unrea-

sonably discharged. The Company’s refusal to hire

certain applicants or to rehire or reinstate various

other striking employees was also found proper by

the Special Master.

Following the discharge of the Decaturville pressers

some employees went out on strike at the Company’s

Loris and Frisco plants, in South Carolina and

Alabama. The Special Master concluded that the

strikers at these plants were striking, at least in part,

for their own economic reasons and therefore their

walkout without notice to the Company and without

making any effort to advise management of the na-

ture of their grievance was not protected activity

‘under the Act.

~~ To hold Respondents in civil contempt we must find

clear and convincing evidence in the record which

proves that Respondents have violated a judgment ot

' this Court. NLRB v. Lynair, Inc., 380 F.2d 286 (6th

Cir. 1967), NLRB v. Local 5881, United Mine

Workers of America, 323 F.2d 853 (6th Cir. 1963).

A review of the record of this case, including the

exceptions to the Special Master’s Report, and the

briefs filed in support of those exceptions fails to

convince this Court that the Special Master’s findings,

which were based on two years of fact finding were

clearly erroneous.

The Special Master’s mere mention of impermis-

4a 5a

sible motives possibly playing some role in the dis- APPENDIX B

missal of Rushing and other employees hardly rises

to the level of clear and convincing evidence of im-

permissible dismissals justifying a finding of civil

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

contempt. A contempt proceeding is a setting very 18,064

different from a normal proceeding for the enforce- 18,154

ment of a Board order. The burden imposed by the Nos. 18,249

clear and convincing evidence standard is heavy. | 18,250

The Board has failed to demonstrate that the Special 18,256

Master erred in his findings or conclusions.

The findings, conclusions and recommendations of [Filed May 238, 1976, John P. Hehman, Clerk]

the Special Master are hereby adopted.

Each party to bear own costs. NATIONAL LABOR RELATIONS BOARD, PETITIONER

Vv.

DECATURVILLE SPORTSWEAR Co., INC., ET AL.,

' RESPONDENTS

ORDER

Before: CELEBREZZE, PECK and LIVELY, Cir-

cuit Judges.

Upon -onsideration the findings, conclusions and

recommendations of the Special Master are hereby

adopted in accordance with the opinion filed today.

Each party to bear own costs.

ENTERED BY ORDER OF THE COURT.

/s/ John P. Hehman

Clerk

Issued as Mandate: June 27, 1975

COSTS: NONE

was tos i see

A True Copy.

ATTEST:

John P. Hehman

Clerk

By /s/ Grace Keller

Chief Deputy

ee nt

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 18,064

18,154

18,249

18,250

18,256

NATIONAL LABOR RELATICNS BOARD, PETITIONER

vs.

DECATURVILLE SPORTSWEAR Co., INC., ET AL.,

RESPONDENTS

MEMORANDUM

This is an action instituted by the National Labor

Relations Board, petitioner, (hereinafter referred to

as The Board or NLRB) in which the United States

Court of Appeals for the Sixth Circuit is requested

to adjudge Decaturville Sportswear Co., Inc. and the

other respondents to be in civil contempt of the de-

cree of the United States Court of Appeals for the

Sixth Circuit for failing and refusing to comply with

the judgment entered on January 29, 1969, and for

other civil relief. The International Ladies’ Garment

Workers’ Union, AFL-CIO, sought to intervene in

the cause, a motion opposed by both the parties be-

1406 F.2d 886.

fore the special Master. By an order dated May 4,

1972, the Master denied the Union the right of inter-

vention for the reasons therein stated. The Master

permitted the Union’s counsel, however, the right of

limited participation, and the Union counsel cross-

examined some witnesses and offered others in sup-

port of the Board’s position and its contentions. This

case was tried before Harry W. Wellford, United

States District Judge, sitting as Special Master, on

various dates between May 2 and May 15, 1972, at

Jackson, Tennessee, and the Special Master having

considered the pleadings, the exhibits, the testimony

of witnesses, the statements of counsel, and the en-

tire record in this cause and being fully advised in

the premises, finds the facts and states the conclu-

sions of law as follows:

I. DECATURVILLE PLANT

A. Wage Increases

1. Among other things, this Court’s order included

a direction to cease and desist from:

promising or granting to employees benefits,

such as paid holidays, insurance, or vacation or

bonus pay, when the purpose thereof is to in-

terfere with the self-organizational efforts of

employees or to induce employees to reject or

refrain from activities in support of Interna-

tional Ladies’ Garment Workers’ Union, AFL-

CIO, or any other labor organization.

The Company’s plant at Decaturville is charged with

having violated the Court’s decree by granting wage

increases to their employees in July, 1969, January

1970, and July 1970, “with the effect of, interfering

with, restraining, and coercing employees in the ex-

ercise of their rights to self-organization.”

2. The Company * granted a wage increase to 274

of its hourly-rated employees at the Decaturville

plant effective July 14, 1969. This wage increase

varied in amount from five cents per hour to ten

cents per hour. In the past, the Company had from

time to time at irregular intervals granted wage in-

creases of substantially similar amounts to employ-

ees having the same or equivalent job classifications.

Some wage increases were necessary to comply with

minimum wage statutory increases.

8 On or about December 27, 1969, the Decatur-

ville plant granted wage increases to 288 of its

hourly-rated employees in accordance with its past

practice. The increases granted were generally in

the amount of ten cents per hour. In addition, in

January of 1970, the Company advanced the base

rate for piece-rated employees from $1.75 to $1.85

per hour. The increase in the base rate did not, how-

ever, result in a wage increase to all of the employ-

ees compensated on a piece-rate basis. Both the wage

increase of ten cents per hour to the hourly-rated

employees and the change in the base rate from $1.75

to $1.85 per hour were in accord with the Company’s

past practice of granting periodic wage increases

:“The Company” refers here to Decaturville Sportswear

Co., Inc., but it is a wholly owned subsidiary of defendant

Marlene Industries Corporation.

10a

and/or changes in the base rate and were motivated,

in part, by its desire to retain its competitive posi-

tion in the labor market in the Decatur County area.

4. On or about July 13, 1970, the Company grant-

ed a similar wage increase to 264 hourly-rated em-

ployees at the Decaturville plant and increased the

base rate for employees compensated on a piece-rate

basis from $1.85 to $2.00 per hour.

5. The effect of the increases in the base rate was

to increase the “potential” for increased earnings to

production workers. Hence, those employees able to

make their production quota would receive an actual

increase in earnings with the increase of the base

rate.

6. During 1969, Plant Manager, Lloyd Anderson,

submitted a proposal to his superiors recommending

a progressive increase system be installed so employ-

ees would be aware of how much to expect, but he

received no response from his superiors relating to

his wage proposal. As a new plant manager, he did

not participate in the July, 1969, raise but was con-

sulted on the two subsequent increases. Although in-

creases have been given since 1970, none were across-

the-board. The increases in which Anderson partici-

pated in 1969 and 1970, were initiated by his su-

periors.

7. In 1969 and 1970, profits of Marlene Indus-

tries were less than they had been in prior years.

lla

B. Unlawful Restraint or Discrimination

Against Employees

1. The Court’s decree has been in full force and

effect since its entry on January 29, 1969, and at all

times herein the Company has had notice and knowl-

edge of its terms.

2. The Court’s decree, in pertinent part, specifies

that respondent will cease and desist from:

(a) Discharging, laying off, forcing termina-

tion of, or otherwise discriminating against em-

ployees, in order to discourage membership in

or support of International Ladies’ Garment

Workers’ Union, AFL-CIO, [hereinafter referred

to as the Union] or any other labor organiza-

tion, or encouraging or permitting employees to

engage in anti-union activity while prohibiting

employees from engaging in activity on behalf

of the Union.

(b) Engaging in surveillance by photograph-

ing employees engaged in union organizational

activities.

employees’ union activities by telling employees

that the Employer has lists of employees who

engaged in union activities.

(d) Threatening employees with discharge or

other reprisals if they become or remain mem-

bers of the Union or give assistance or support

to it.

(e) Interrogating employees concerning their

or other employees’ union organizational activi-

ties or their opinions regarding union organiza-

tion.

(f) Instructing employees to watch for union

activities and listen for opinions regarding union

12a

organization of other employees and report find-

ings to us.

(g) Threatening employees with closing or

moving the plant should they engage in activi-

ties on behalf of the Union or select the Union

as their collective-bargaining agent.

(h) Coercing employees by telling them that

other employees had been discharged or would

not be recalled because of their union activities.

(i) In any other manner interfering with, re-

straining, or coercing employees in the exercise

of their right to self-organization, to form labor

organizations, to join or assist International

Ladies’ Garment Workers’ Union, AFL-CIO, or

any other labor organization, to bargain collec-

tively through representatives of their own

choosing, and to engage in other concerted ac-

tivities for the purpose of collective bargaining

or other mutual aid or protection, and to refrain

from any or all such activities.

3. Maria Stanfill

(a) The Union has been attempting to organize

the Company’s employees since 1965. In the spring

of 1969, the organizing campaign was intensified as

a result of this Court’s order which, among other

things, afforded the Union access to Company’s park-

ing lots and bulletin boards in furtherance of the

Union’s organizational efforts. Decaturville complied

with these affirmative requirements fully, and the

Union utilized these privileges actively.

(b) Maria Stanfill began working for the Com-

pany in 1964. She was employed as a “hemmer”

a Sn

13a

under the supervision of Jo Essary (now Crawford).

During June or July, 1969, Stanfill signed a union

authorization card in the Company parking area.

Assistant Plant Manager David Perrin who was

standing approximately 15 feet away may have ob-

served her sign the card.

queried her during the summer of 1969 about pur-

ported union activities, a charge the Company and

the supervisor involved, denied.

(d) Stanfill began experiencing a change in her

working conditions after the arrival of the new Plant

Manager, Anderson, in 1969. Prior to Anderson,

Stanfill would receive, for repair purposes, only those

pairs of slacks which needed to be redone. After-

ward, however, supervisor Essary would bring her

an entire bundle of slacks whenever repairs were

required, even if the repairs entailed only several

pairs of slacks out of the bundle. As a result of such

procedure, Stanfill was required to take production

time, to search through entire bundles for specific

pairs which needed repairing, and she was paid on

the basis of the amount of pairs produced.

(e) On August 14, 1969, Stanfill claimed to be

nervous or ill while working in the plant. At the

same time, Stanfill expressed dislike for the type of

material which she was sewing that day and stated

that the work made her nervous. She reported her

problem to Supervisor Essary and requested permis-

sion to leave the plant so that she could obtain medi-

cation and she wanted to change the work then as-

l4a

signed her. Essary stated that she would have to

obtain the approval of Assistant Plant Manager Per-

rin before Stanfill could leave the plant under the

circumstances. At that point, Essary left to find

Perrin. She returned shortly thereafter and informed

Stanfill that Perrin would not give permission for

her to leave the plant. Stanfill made no request to

see Perrin herself before she decided to leave the

plant, nor did she contact the plant that day or the

next. Stanfill, who had visited her doctor in the in-

tervening period, returned to the plant on August

18, with a note from the doctor. When Stanfill

reached her work station, however, Essary directed

her to report to Plant Manager Anderson’s office.

Pursuant to this order, Stanfill reported to the office

where Anderson, Pollard and Perrin participated in

a conference with her. Anderson told her that she

no longer worked at the plant, since she had “volun-

tarily quit.” Stanfill denied that she had quit, stating

that she had “to go to the doctor” and had claimed

to have been given permission to leave by Essary,

which was denied by said supervisor. Stanfill had a

prior somewhat erratic performance record with the

Company.

I find there is insufficient clear and convincing

evidence that Maria Stanfill was discharged because

of her activities on behalf of the Union organizing

effort. The Company did not discharge or involun-

tarily terminate employee Maria Stanfill on August

18, 1969, if she did not quit, for union activities.

15a

(f) Stanfill also claimed to have been inter-

rogated with respect to her Union sympathy by her

supervisor. The Company doubtless knew of her

Union disposition because others in her family were

also so disposed, and because she may have made her

Union affiliation apparent. While the supervisor de-

nied any such inquiry, I find that Stanfill was quer-

ied about her Union inclination, by a company su-

pervisor, but she was not coerced, threatened, or

discharged because of her pro-union disposition.

4. Betty Williams

(a) Williams became a Decaturville plant em-

ployee in 1964 or 1965 and worked thereafter at vari-

ous jobs in the plant. She apparently enjoyed a spe-

cial relationship with the plant superintendent, Ray-

mond Rindone, and under him, advanced to a quasi-

supervisory type position in the thread department in

1967. She answered directly to Rindone until his

discharge by the Company for conduct inimical to

its interests.°

(b) After Rindone was replaced by Lloyd An-

derson as plant manager in 1969, Williams’ position

changed, Neither Anderson nor his assistant, Perrin,

gave her authority over others in the thread depart-

ment or as a supervisor.

sympathies of others in the thread department. Under

Anderson’s direction, there was obvious signs of

“tightening up” in the thread department and some

2 Rindone’s role will be discussed hereafter.

l6a

reassignments of responsibilities purportedly for

greater operating efficiency. Williams continued to

be paid hourly and she continued, for payroll cate-

gory purposes, in the same status as she occupied

when Rindone was manager.

(d) Williams was injured in an automobile acci-

dent in August, 1969, and after recovering returned

to work in a different capacity. Her replacement in

the thread room, Ruben Moore, was carried on em-

ployee pay records in July 1970, as supervisor of

the thread room. I find that Betty Williams, during

the year 1969, was not a supervisor within the mean-

ing of Section 2(11) of the Act, although she prob-

ably had been considered in that status by previous

plant manager, Rindone, for personal as well as com-

pany purposes.

(e) I find that Betty Williams was not dis-

criminated against by the Company by reason of any

union sympathy or activities.

5. Benson Rushing

(a) Benson Rushing was known to be a Union

supporter in the summer of 1969. Prior to December

of 1969, several of the employees at the Decatuiville

plant, including Benson Rushing, regularly used the

plant’s station wagon to run errands.

(b) In December 1969, the Company hired an

employee to drive the station wagon on a full-time

basis and discontinued the use of the vehicle on a

part-time basis by those employees who had previ-

ously used it to run errands including Rushing. Af-

——

ee ae: one an Gt oe

ane. ees

17a

ter December 1969, neither Benson Rushing nor any

other employee was assigned to duties involving the

driving of the Company station wagon on a part-time

or casual basis. Nelson Rushing was reassigned to

other duties, including pushing buggies of thread

into other department

harass, intimidate, nor discriminate against Benson

Rushing by reason of his union sympathy or ac-

tivities. Neither did the employer unlawfully or in

derogation of this Court’s orders assign more ardu-

ous duties under more difficult circumstances in re-

taliation for his Union organizational activities, if

any. Benson Rushing did not testify in these hear-

ings.

6. R. C. Brashers

(a) R. C. Brashers began working for the

Company in January, 1966, and worked as a “legger”

in the pressing department. He served on the Un-

ion’s in-plant organizing committee and his name ap-

peared in a telegram the Union sent to the Company

on July 23, 1969, which listed those employees serv-

ing on the committee. Brashers signed a Union au-

thorization card, solicited fellow employees to sign

cards and collected signed cards from a number of

employees. He wore a Union button in the plant, at-

tended Union meetings and engaged in handbilling

the plant, when the Union began such activity, pur-

suant to the Court’s order in June, 1969.

18a

I find from the above activity that the Company

became aware of Brashers’ union activity on or be-

fore July 23, 1969.

(b) On or about August 8, 1969, Pressing

Supervisor Stevens told a group of pressers, includ-

ing Brashers, that because of a shortage of work they

were to be laid off for approximately one week or

10 days. In response to a question, Stevens stated

that the laid-off pressers were permitted to seek em-

ployment during the week of their layoff so that they

could “make some extra money,” provided that they

reported back to work on Monday, August 18. Press-

er Oscar Smith, who was present during this con-

versation, also testified that Stevens gave the presser’s

permission to seek other employment during the lay-

off. Another presser, Eldridge Burge, moreover, who

had been laid off the week previous to August 8,

stated that Stevens had told the group laid off at that

time that they could obtain other employment during

the layoff.

During the week of his layoff, Brashers found

work as a presser at a nearby plant operated by

Salant and Salant, Inc. He began working at Salant

and Salant during the week of his layoff and worked

only a couple of days. Brashers returned to the plant

on August 18, ready to resume his duties as a press-

ey. His immediate supervisor, Joe Kennedy, advised

him to report to the personnel office, and Personnel

Manager Pollard informed Brashers that since he

had accepted employment with Salant and Salant he

was deemed to have “quit” the Company’s employ-

ment. When Brashers denied that he had quit, Pol-

a, eae

19a

lard called Plant Manager Lloyd Anderson and Stev-

ens to the office. Anderson reiterated that Brashers

had quit. Brashers once again, denied that he had

quit, pointing out, instead that the pressers had re-

ceived Stevens’ permission to seek and accept employ-

ment during the layoff. Stevens admitted that he, in-

deed, had permitted the pressers to find temporary

employment so that they could have a chance to earn

money while they were laid off. Thereafter, Brashers

left the plant and he subsequently received a termina-

tion slip in the mail, which stated that he had volun-

tarily quit due to his having taken “other employ-

ment.”

I find that there is substantial evidence that

R. C. Brashers was discharged from Decaturville

Sportswear, at least in substantial part, because of

his activity on behalf of the Union organizing effort.

policy against permitting a laid off employee to seek

permanent employment elsewhere during the lay-off.

There was evidence to the effect that Brashers ap-

plied at Salant and Salant on a permanent status

contrary to Decaturville’s rules. In this instance, how-

ever, the action taken by the Company towards Brash-

ers, a long-time employee, who was seeking under-

standably to augment his income in accordance with

a supervisor’s suggestion,’ appears to be motivated

‘It may be that Stevens’ suggestions about seeking work

elsewhere were misunderstood by Brashers and the other

pressers. I credit Brashers with the sincere belief that he

was encouraged to seek temporary work elsewhere during

the lay-off.

20a

in substantial part by its desire to defeat the Union

in its organizational activities.

7. Martha Thomas

(a) On or about October 14, 1969, employee

Martha Thomas was directed by her supervisor to

go to the office of plant manager Anderson because

of Thomas’ poor production. Present in Anderson’s

office were personnel director Pollard and assistant

plant manager David Perrin. During the discussion

Anderson advised Thomas to the effect that she could

not get by without making production.

(b) This conference or discussion was recorded

by a recorder in plain and obvious view during this

discussion. Thomas claimed that Anderson, in sub-

stance, warned her about supposed Union sympathies.

There is no support for her contention.

was interrogated about nor interfered with concern-

ing her Union sympathies by plant manager Lloyd

Anderson under all the circumstances.

8. Doris Thorp

(a) On or about March 9, 1970, a Monday,

employee Doris Thorp was called into Anderson’s of-

fice because she had left work early without permis-

sion on Friday of the preceding week. During the

conversation between Thorp and Anderson, she claims

that he asked whether she belonged to the Union.

(b) Thorp was disgruntled because of the work

assignment given to her, and because she was given

ee ee ee —_

OO A A, Oh Nl Ny i

2la

no explanation satisfactory to her about being as-

signed to joining work rather than side-seaming.

She was, among other things, warned by the plant

manager about her leaving the plant without permis-

sion, but she was not discharged.

dence taken as a whole that plant manager Anderson

interrogated employee Doris Thorp concerning her

Union sympathies.

9. Ruth Bradley Campbell

(a) Ruth Bradley Campbell began her employ-

ment with Decaturville Sportswear in 1960, as Ruth

Bradley, and had worked on several separate occa-

sions since that time. On each occasion in the past,

Campbell had voluntarily quit her employment. Her

last period of employment before the episodes in

question began in July 1968, when she was placed

in the sewing department “serging flies,” in which

department her supervisor was Ruth Maness. During

her employment, Campbell had performed most of

the sewing operations available in the plant. She

testified that she signed a Union card in July of

1969, wore a Union button in the plant, attended

Union meetings and passed out authorization cards

to other employees in the plant. In November or De-

cember of 1969, Mrs. Campbell told Maness, her

supervisor, in response to an observation that the

Company had a right to raise production, that such

action was the reason why the employees needed a

good union, and “if we had a good union they

22a

wouldn’t raise it when they wanted to.” In addition

to speaking in favor of the Union to employees,

Campbell also for a period of two or three weeks, had

Union literature and handbills laying on her machine.

I find that the Company was or became aware

of Campbell’s Union activity in or about November

or December 1969, or perhaps before that time.

(b) On or about March 16, 1970, in the course

of her duties, Campbell twisted her arm at the el-

bow while lifting a bundle of clothes. She advised

Maness of the injury but continued working for

the remainder of the day. The following day upon

returning to work, Campbell discovered that swelling

had developed in her arm, and after advising Maness

of this fact, she visited the plant nurse in the first

aid room. Campbell was directed by the nurse to

see the Company doctor, Dr. Fisher, who examined

and treated her arm on or about March 18, 1970.

Fisher recommended that Campbell stay home from

work for a few days and give her arm an opportunity

to respond to treatment. Campbell remained off for

two weeks, but then consulted the doctor about re-

turning to work since she needed the earnings.

Bradley had experienced muscle spasms previously

in her left arm and shoulder during the year 1968.

She was treated by her own doctor at this time, and

based upon his examination, he recommended thai

she change jobs for a period of time until the spasms

were relieved. During this period Campbell made a

number of visits to Dr. Fisher. On or about the

98th of March, 1970, she returned to the Company

eee ee

sl A i i I

or ay. es

23a

with the statement prepared by Dr. Fisher which

recommended that she should “avoid heavy lifting’.

Upon returning to the plant, Campbell presented

Dr. Fisher’s slip to Maness who indicated that she

would try to find something light for her to do. She

then met with Pollard and showed him Dr. Fisher’s

statement. Pollard told her that he had nothing for

her to do unless she was prepared to return to her

old job of serging flies, but suggested she seek a leave

of absence until she was physically able to handle

this job. This was in accord with the employer’s

policy in situations of this kind. After concluding

that she could not continue this work and after the

refusal of requested lighter work, Campbell assumed

that she had been fired and left the plant without

applying for a leave of absence. She subsequently

received a termination slip dated March 30, 1970.

Fisher because of a continued problem in her arm.

She was, however, advised that Dr. Fisher had dis-

missed her from his care and, as a consequence, the

Company’s insurance no longer covered her condition.

She concluded, apparently, that inasmuch as she

would have to pay for the doctor herself she would

stop seeing Dr. Fisher and go to her own doctor;

and then began seeing Dr. Earl Salhany in Lobel-

ville, Tennessee, who advised her that she had torn

ligaments in her arm. Subsequent to obtaining a

statement from Dr. Salhany on April 10, to this ef-

fect, Campbell returned to the plant where she showed

the statement to Pollard, the personnel director. She

24a

applied for and received workman’s compensation,

receiving the last check on approximately June 29.

Although she continued to remain under Dr. Salhany’s

care, she was, at the request of the Company, di-

rected to go to Nashville for an evaluation by an

independent physician, Dr. Davis, who concluded that

her arm had healed satisfactorily and that she was

able to return to work on a regular basis.

(d) Campbell then returned to the Decaturville

plant and spoke with Anderson, the plant manager,

after filling out an application for employment. She

told Anderson that she had three children to sup-

port and needed work. After inspecting Campbell’s

personnel file with Pollard, she was refused an op-

portunity for reemployment.

(e) Campbell testified that after the period of

receiving workmen’s compensation benefits had ex-

pired when she sought reemployment unsuccessfully,

Anderson observed that if he hired her, she would

probably soon quit to join the picket line. At this

time, however, the Company was advertising for

skilled employees, such as Campbell in the sewing

departinent.

(f) I find there is insufficient evidence to es-

tablish that Ruth Bradley Campbell was discharged

from the Company because of her activity by and on

behalf of the employees’ Union organizing campaign.

I further find, however, that there is a substantial

basis to determine that she was refused reemployment

on or about June 30, 1970, because of the Company's

fear that she would engage in Union activities, if

25a

re-hired. This was coupled with a reluctance to re-

hire an employee who had a history of physical

complaints in the past; quitting, and workmen’s com-

pensation problems.

10. Bennie Hamm

(a) Bennie L. Hamm began working for the

Company in January, 1966, as a floor helper in the

pressing department. He served on the Union’s or-

ganizing committee and his name appeared on a

telegram the Union sent to the Company on July

23, 1969, which named those employees who served

on the committee. Hamm was active in a Union

organization effort throughout 1969. Additionally,

during this time Hamm appeared on a Union-spon-

sored radio program, heard in the Decaturville area,

on which he spoke on behalf of the Union.

I find from the above evidence that the Com-

pany was or became aware of Hamm's Union ac-

tivity on or before July 23, 1969.

(b) After Anderson became plant manager,

room supervisor Stevens began treating Hamm dif-

ferently as there was a tightening of procedures

in the pressing department, and he would warn him

to stop talking on the job. Additionally, Stevens

warned Hamm that he was using the restroom fa-

cilities too frequently. Hamm was illiterate, but this

problem had not been mentioned as a difficulty at-

tendant to his continued employment. The Company

witnesses gave a variety of reasons attesting to the

importance of employee ability to read and write.

26a

Initially it should be noted, however, that the Com-

pany has no policy barring the hiring of illiterates.

injury in the plant while lifting some boxes. Shortly

thereafter, he was examined by a physician who

advised him that an operation was necessary. Hamm

was granted an extended leave of absence on April

30, 1970, for surgery. Approximately eight weeks

later, Hamm returned to the plant at the expiration

of his leave of absence with a note from his doctor

releasing him from further medical care. At that

time, Hamm met with Personnel Manager Pollard.

Pollard informed Hamm that, while he would place

Hamm’s name on the active list of employees, he

was simultaneously laying him off by reason of lack

of work. Hamm’s particular job during the interim,

had, in fact, been abolished.

(d) During the time Hamm was away from

work recuperating from his injury, the Company

phased out certain of its pressing operations so that

when Hamm returned for work, his particular job

no longer existed. Hamm was not qualified, accord-

ing to the employer’s testimony, for any alternate

jobs as may have been available. As a consequence,

on or about June 15, 1970, Hamm was laid off

ostensibly for lack of work. After having drawn six

weeks’ unemployment compensation at the plant,

Hamm was terminated in August 1970.

(e) I find there is substantial basis to deter-

mine that employee Bennie L. Hamm was discharged

at the Decaturville Sportswear Plant because of his

27a

support and assistance in behalf of the employees’

Union organizing effort. No doubt he was handi-

capped by his inability to read and write, but the

Company at the time was seeking experienced help,

and Hamm had been able to do his job for a num-

ber of years before his injury.

11. Nellie Mills and Paulette Rushing

(a) Nellie Mills was a long-time employee at

the Decaturville plant in supervisor Carolyn Pratt’s

serving department. She and a co-employee, Paulette

Rushing, engaged in a conversation together on or

about June 24, 1970, just before joining the strike,

about being laid off, insufficient work, and produc-

tion. The supervisor observed to them both that she

hated to see everyone walk out because she feared

for her own and her husband’s jobs.

(b) Paulette Rushing was the sister-in-law of

Nelson Rushing, (who will be discussed hereinafter’)

discharged by the Company the day before, and was

also a long-time employee at the Decaturville plant.

reason of a natural and normal apprehension of the

supervisor under the circumstances, and did not con-

stitute a threat of plant closure.

12. Donald Pettigrew

(a) On June 23, 1970, the day when the strike

commenced at Decaturville, Donald Pettigrew, whose

mother was already an employee of the Company,

28a

appeared at the plant and completed an application

for employment. Later that day, he received a phone

call at his home from someone whom he believed

was a secretary at the plant, advising him to report

for work the following morning.

That next morning, Pettigrew reported to the

plant, and with four other applicants, met with Per-

sonnel Director Pollard, who indicated they had been

hired. Pollard outlined various plant rules and in-

quired if any of them could perform work as pressers.

(b) At that point, the meeting was inter-

rupted by one of the personnel staff, who informed

Pollard that some of the employees had just walked

out. Pollard then left his office; returned shortly

thereafter, and then asked all of the prospective new

employees, except Pettigrew, to leave the office. Pol-

lard then told Pettigrew that he was not going to

hire him. When pressed by Pettigrew as to the i2a-

son, Pollard indicated that it was because his mother

walked out with the others. In response, Pettigrew

stated that “just because [iny mother] walked out

[doesn’t] mean I’m going to walk out”. Pettigrew

then left the plant without being hired.

applied for work at the Decaturville plant while in

school, and he had also applied for work unsuccess-

fully a number of times before at nearby Salant &

Salant. Other persons were hired in the pressing

department as needed on June 24, 1970, because of

the walkout.

29a

(d) I find that Donald Pettigrew was refused

employment because the Company feared that he

would engage in Union activity.

13. Linda Williams

(a) Employee Linda Williams joined the

strike on June 26, 1970, and appeared on the picket

line. Upon arriving home in the afternoon on that

day she received a telephone call purportedly from

her supervisor (or former supervisor) Edna Hendon,

a good friend. Hendon asked Williams if she thought

that the employees were going to do any good by

going out on strike and was she doing the right thing

by going out and losing her job. Hendon confirmed

the fact that she did call Williams the day she walked

out and asked her to think it over and come back to

work.

(b) Hendon was later in early 1971, demoted

and quit rather than accept a new job assignment.

She obviously harbored some resentment against the

Company for what she considered mistreatment in

denying that she had received warnings about the

quality of her work as a supervisor. The Company

was, however, dissatisfied with Hendon’s job per-

formance.

gated employee Linda Williams about her Union

activities.

14. Lois T. Page

(a) Employee Lois T. Page joined the strike

sometime after a July 4, 1970 vacation. Shortly be-

SC‘ ‘ltl eee

30a

fore that vacation, she testified that a supervisor,

Parker Maness, approached her at her sewing ma-

chine and asked if she were going to join the strike;

Maness then purportedly indicated that he supposed

some of the people that walked out would probably

be fired.

(b) Maness denied this conversation in its

entirety. I find a lack of clear and convincing evi-

dence that supervisor Parker Maness did anything

more than interrogate employee Page about her

Union activities, if he did even this. I find no threat

or coercion on the part of supervisor Maness.

15. Evelyn Phillips

(a) Evelyn Phillips had worked off and on for

Decaturville from 1964 until 1969. She had pre-

viously twice been fired and had consistently been a

low production worker at the plant. In 1969, she

had quit after previous leaves of absences. Altogether,

her record prior to 1970 was an unsatisfactory one.

(b) On or about July 24, 1970, Evelyn Phil-

lips appeared at the plant, filled out an employment

application and was interviewed by Personnel Di-

rector Pollard. Phillips expressed a preference for a

position as a “tacker,” a job she had performed

when she worked for the Company on prior occasions.

Pollard then contacted Phillips’ former supervisor in

the tacking department and inquired if she needed

another tacker, and Pollard advised Phillips that a

tacking position was available.

3la

Rushing, a leader in the strike. On July 27, Phillips

returned to the plant and reported to Pollard’s of-

fice. At that time, Pollard informed Phillips that

he was sorry that he could not use her, apparently

fearing that she, too, would join the sirike. She then

left the plant and did, in fact, join the picket line.

(d) I find that job applicant Evelyn Phillips

was denied employment by the Company on July 24,

1970, in part because of the Company’s fear that she

might engage in Union activities, but also because

she had a poor previous record.

16. Judy Scott Maness

(a) Before her marriage, as Judy Scott, Mrs.

Maness had worked at Decaturville for about a year.

After moving away, she returned in late 1969 to

work and joined the strike on or about June 26,

1970. During September of 1970, she abandoned the

strike and asked to be re-employed. The Company

had on June 26, 1970, sent her a letter directing her

to return to work by the following Monday or she

would be replaced.

(b) She was questioned when she returned as

to her complaint and the basis for her walking out.

Her complaint was related to frequent changes in

production procedures and quota which she termed an

“ynfair labor practice” and had nothing to do with

the Nelson Rushing-pressers situation. She was told

that she would be called if a place became available

but that her position had been filled. Later, in Oc-

32a

tober of 1970, she returned to the plant and signed

a termination notice “voluntarily quit as of June

26, 1970” after having been requested to do so. She

felt this was necessary to get a separation slip in

order to get another job if Decaturville had nothing

for her.

tion for re-employment in September 1970.

17. Peggy Cagle

(a) Cagle had been a seven year employee of

Decaturville when she walked out June 24, 1970, to

support Nelson Rushing, another long-time employee,

who had been fired. She was also dissatisfied at the

time about her job assignment. She abandoned the

strike to seek to return to work in September of

1970. As in the case of Judy Maness, she was asked

to fill out a new employment application, and her

reasons for joining the strike were inquired into.

(b) She also was sent a letter on or about

June 24, 1970, by the Company directing her to re-

port in a few days or she would be replaced. She

received this letter, and like Maness, did not return

as directed. She was told in September that her

tagging job had been filled but they would call her

in a few days if there were an opening. On or about

October 8, 1970, Cagle returned to the plant and

signed a termination notice, “voluntarily quit as of

June 24, 1970.” She felt this would assist her to get

a job elsewhere and in obtaining a separation slip.

for re-employment in September 1970.

PSI

33a

18. Nelson Rushing

(a) Nelson Rushing was the senior man in

the pressing department, having been with the Com-

pany at Decaturville since the plant opened in 1960.

When Lloyd Anderson became plant manager in

1969, inspection began to be tightened up and quality

control procedures were made more stringent. Rush-

ing was in the hot head pressing section with some

12 or 13 other pressers. After Anderson took over,

Rushing also observed that there were changes in

rates effectuated, and more pants were being returned

out of bundles completed for re-pressing. Rushing

had performed just about every function at one time

or another in the pressing department.

(b) Because of the changes being effectuated

and general dissatisfaction with them, Rushing be-

came involved in Union activities, and there was

considerable discussion taking place in the pressing

department during the break and lunch periods about

unionization, during 1969 and in 1970.

production worker, when in 1969, pants that needed

re-pressing were returned marked in bundles and had

to be separated or pulled out of the bundles by the

presser. Complaints were made to supervisors but

Rushing felt little was being accomplished about

these grievances, although at one time he and other

pressers had a discussion with Anderson about the

situation. The effect of these practices, according to

Rushing, was to lower his production pay, and he

34a

did not like the changes. He felt that the former

plant manager, Rindone, had been more understand-

ing, easier to get along with.

(d) In 1969, Rushing and other pressers in-

itiated a work stoppage, which apparently called

attention to their complaints and brought Rindone’s

attention to their grievances. Shortly thereafter in

1969, after Anderson became manager, however, an-

other work stoppage resulted in a warning from

Anderson that if it occurred again, the participants

would be discharged.

(e) In 1970, inspection became tighter, and

some pants approved by Henley, the pressing super-

visor, were returned by quality control inspector's

down the line for re-pressing. The Company adopted

a policy of requiring all bundles which contained

three improperly pressed garments out of any ten

selected at random to be returned to the employee

who had pressed the defective garments. Such em-

ployee was then required to inspect the bundle and

make such corrections or repairs aS were necessary.

After Lloyd Anderson became plant manager, this

policy was applied more consistently and uniformly

to all pressers under more stringent quality control

requirements.

(f) During the morning of June 23, 1970,

supervisor Henley inspected a bundle of 60 to 80

slacks which were recently pressed by Nelson Rush-

ing, a topper, and his legger, Milton Moore. Henley

returned several pairs to Rushing for repressing.

Henley returned to Rushing’s station shortly before

35a

the pressers’ morning break and indicated that there

was a policy change so that if there were as many as

three pairs of pants returned out of any bundle the

presser would have to go and inspect through the

entire bundle, Henley stated that he was advised of

this rule by Ed Stevens, his supervisor. Rushing im-

mediately protested, stating that the pressers were

inspectors. Rushing then demanded that Henley

check with other officials concerning this policy which

would, he felt, reduce his production, and refused to

do this work. Henley then turned to Moore, the leg-

ger, and asked him to inspect the bundle. Moore

replied that he agreed with Rushing. Other pressers,

Hancock and Cressing, objected also to this new pro-

cedure.

(g) Stevens, accompanied by Henley, came by

Rushing’s work area shortly thereafter inquiring

about the trouble and Rushing advised that the sit-

uation needed to be straightened out since the press-

ers were now being asked to “inspect”? bundles and

they weren’t going to do this, When Stevens stated

that he could do nothing about the problem, Rushing

responded that he “go discuss it with Anderson [and |

find out what can be done.” Pressers Hancock and

Cressing approached Stevens and stated they agreed

with Rushing. Stevens then advised the pressers that

he would “go take it up with Anderson.”

Shortly thereafter, Stevens returned and in-

formed Rushing and the other pressers that Ander-

son wanted to see them in his office. Hancock stated

that he did not want to go to the office since he had

36a

been there before and had accomplished nothing.

However, Hancock added that Anderson should come

discuss it with the pressers. Stevens then left and

most of the pressers went to the lunch room.

(h) Shortly after the break period began, An-

derson appeared in the cafeteria accompanied by

Stevens and Pollard, personnel director, and asked

to see Rushing in his office. Rushing refused to go

to the office because he said it concerned all of the

pressers, and because he feared being discharged in

private. Rushing persisted in his refusal to go to the

office.

(i) I find that Nelson Rushing was discharged

both for his concerted activity with others in the

pressing department, which activity he initiated, but

also for his public and adamant refusal to meet with

the company plant manager to discuss the problem

and complaint.

19. Other Pressers

(a) The findings with respect to Nelson Rush-

ing are reiterated insofar as they involve and af-

fect other pressers who were subsequently (or con-

currently) involved.

(b) Prior to the beginning of the Union cam-

paign in 1969 and 1970, the pressing department was

composed of approximately 54 pressers and bundle

boys under the supervision of Edward Stevens. The

pressers, who worked in pairs, a “topper” and a

“legger,” had their work inspected to determine if

any defects existed in the pressed garments. The

37a

inspection function, until on or about June 23, 1970,

wes performed by quality control inspectors and

pressing department supervisors. If any pair of slacks

were found by a supervisor to be incorrectly pressed,

he would return that pair to the presser involved for

correction. If the quality control inspectors subse-

quently rejected certain pairs of pants the supervisor

would bring those pairs back to the presser for re-

pressing. Occasionally, the supervisor would return

an entire bundle of slacks that the presser had worked

on, which bundle would contain red tags or some

other indicator, on those specific garments which

needed repressing.

Subsequent to the commencement of the Union

campaign on the Company’s premises, some pressers

became an active intra-plant force on behalf of the

Union, a fact which was known or should have been

known to management. Additionally, the pressers

openly discussed the issue of unionization in the plant

and had discussions on the subject during lunch time

and break periods.

his position at approximately the same time the Un-

ion obtained access to Company premises, immedi-

ately began imposing changes in the working condi-

tions and enforced prior procedures in this depart-

ment not previously uniformly observed. One change

involved the use of “snap hangers” rather than the

ordinary clothes hangers they had been using. The

pressers who were paid on the basis of a production

rate were forced to adopt themselves to this change

and their wages may have suffered as a consequence.

38a

Additionally, the pressers began receiving more slacks

back for repressing from quality control. The press-

ers were not paid on a production basis for any re-

pressing work they would be called upon to perform.

Some pressers determined they were unhappy about

their working conditions, since they were suffering

losses in their pay and as a result, the pressers be-

gan voicing their grievances to their immediate su-

pervisors and to Anderson, including a complaint

about too stringent inspections.

(d) I find that there was a history of tighter

controls imposed and enforced by Anderson and con-

sequent employee complaints in the pressing depart-

ment stemming from approximately the time that

Anderson assumed his duties as plant manager.

(e) After the episode on June 23, 1970, in

which Nelson Rushing refused to do certain repress-

ing and/or inspection work, and also refused to meet

with Mr, Anderson privately, most of the pressers

then and there expressed support of Rusiing aia

dissatisfaction with the decision to fire him.

(f) One presser, Hancock, then asked Ander-

son if he really meant “to fire him [Rushing] over

this?” Anderson reiterated that Rushing was indeed

discharged. Hancock offered that “we could work out

something about [this incident and] get back [to the

department] and make some kind of production.”

Anderson, however, rejected the offer stating, “Tm

not making any deals.” Hancock and the others re-

sponded to the effect that if Rushing were fired, then

“the whole bunch” might as well be fired.

39a

(g) All of the pressers then followed Ander-

son to the office and were given their final checks

and their termination slips which reflected that they

were being discharged for insubordination. I find

that the Company discharged approximately 54 other

employees besides Rushing working in the pressing

department on June 23, 1970, because they collec-

tively protested the discharge of Nelson Rushing and

refused to receive work under the conditions in exist-

ence in the pressing department.

C. General Findings of Fact—Background

and Supplementary

1. Marlene Industries has strenuously resisted

1.L.G.W. Union efforts to unionize its employees,

particularly at the Decaturville, Tennessee plant

since 1965. Some of the zealous steps taken to effect

this purpose were contrary to the requirements of

the N.L.R.A. and were found both by the National

Labor Relations Board and this Court to have over-

stepped the bounds of both propriety and legality.

In 1969, this resulted in the Union’s being given

broad access to Company parking lots, bulletin boards,

and resulted in other affirmative relief in favor of

the Union and its organizational activities. Albeit

under protest and reluctantly, the Company has not

interfered with the Union or the employees in con-

nection with Union access and availability on Com-

pany premises under these orders.

2. Prior to 1969, Raymond Rindone had been

plant manager at Decaturville. He was discharged

40a

in mid-1969 for activities that involved embezzling

Company funds, maintaining false payroll records,

and other related activities. These and other illegal

activities of Rindone came to the attention of this

Court upon an indictment of Rindone charging fed-

eral tax violations, to which Rindone plead “nolo

contendere.” * The pre-sentence report indicated,

among other things, without being specific, evidence

of Mr. Rindone’s “special relationship” with a num-

ber of females in the Decaturville community.

3. Mr. Rindone’s administration of the Decatur-

ville plant was not marked by uniform supervision

and control with regard to policies and procedures

enforcing quality control and plant discipline. His

successor, Lloyd Anderson, imposed Company-wide

procedures, unpopular with production employees,

designed to increase both quality and quantity of

production and plant efficiency. Employees in a num-

ber of departments complained about these new pro-

cedures, rates and scales of production pay, and en-

forcement of disciplinary policies, some of which had

not been previously enforced, or at least, not uni-

formly enforced prior to 1969.

4. During 1966 and subsequent years, Marlene

Industries was again charged with unfair labor prac-

tices in connection with its activities at another plant,

but the charges were not sustained.‘ At this time

° See cause No. 9276, United States District Court, West-

ern District of Tennessee (Eastern Division).

*171 N.L.R.B. #118 (1968). See also 183 N.L.R.B. #127

(1970) and 184 N.L.R.B. #82 (1970).

4la

it was evident that the Union was continuing its

organizational activities. Until June 23, 1970, in any

event, the Union was actively and continuously, with

the assistance of its professional organizers, attempt-

ing to organize the Decaturville plant.

5. Immediately after Nelson Rushing and the

other pressers walked out of the Decaturville plant

on June 23, 1970, picketing began at this plant with

active assistance of Union agent D. O. Warren, who

was then in the Company parking lot. The pressers

informed Warren that they had all been discharged

due to their adherence with Nelson Rushing’s posi-

tion. Warren stated that they would receive the

Union’s support if they wanted it, however, he asked

them to be patient, as far as a course of action was

concerned, since he would have to check with Union

headquarters. Warren then met with Mary Cameron,

the Union’s Tennessee State Director, and informed

her of what had taken place.

Cameron in turn contacted her superior, Nickolas

S. Banano, the Union’s Southeast Regional Director

for organizing. Cameron advised Banano, that one

of the pressers, Union adherent (Rushing) had been

fired and that the other pressers in the department

had walked out in sympathy with him. Based upon

Cameron’s report, Banano directed her to offer the

Union’s assistance to the employees and to indicate

that the walk-out was in the nature of an unfair

labor practice strike. After conferring with the

Union’s legal Staff, Banano placed another call to

42a

Cameron with respect to ceasing organizational ac-

tivities among the Company’s employees.

6. Based on the instructions of his superiors.

Warrent, on the afternoon of June 23, established a

picket line at the Decaturville plant and distributed

picket signs which contained the following wording:

“On Strike Against Marlene Industries, for Un-

fair Labor Practices, Workers of Marlene In-

ternational Ladies’ Garment Workers’ Union.”’

“We Support the Workers at Marlene Indus-

tries Workers Against Unfair Labor Practices,

International Ladies Garment Workers Union.”

Later the same day, a meeting of approximately

50 to 60 striking employees was held at which time

Warren outlined the Union’s strike benefits and dis-

cussed picketing and strike procedures and violence

on the picket line was sought to be avoided.

On or about June 30, Banano met with approxi-

mately 60 to 70 striking employees and explained the

Union’s position in support of the strike. He out-

lined strike benefits and advised that organizational

activities were not to continue as performed pie-

viously. Banano explained that the Union was claim-

ing that the reason for the strike was the Company’s

unfair labor practice in discharging Rushing and

the other pressers on June 23. Subsequently, during

the second week of July, Union attorney David Good-

man met with the striking employees and also dis-

cussed the reasons for the strike with them. Some

handbills were distributed thereafter advising em-

43a

ployees of the status of the strike, and some solicita-

tion of cards and other organizing efforts continued,

but the emphasis after June 23, 1970, was on the

strike and picketing. The wording of the picket

signs remained the same throughout the course of the

strike.

7. On June 24, 1970, the Company addressed a

letter to each of the pressers and bundle boys, ex-

cept Nelson Rushing, who had been discharged on

June 23, 1970, and offered them full and immediate

reinstatement of their position, without loss of sen-

iority or any other privileges provided they reported

for work by a specified time. Some of the presser's

returned to work; others did not and continued to

picket outside the Decaturville plant. Similar letters

were sent to other employees who subsequently quit

to join the picket line.

8. Although the Union hierarchy made efforts to

characterize and to confine the strike at Decaturville

as one for alleged unfair labor practices, there were

continued, although somewhat spasmodic, attempts to

organize and to recruit further workers into the

1.L.G.W. Union. Some Decaturville strikers were sent

to other Marlene plants by the Union in support of

picketing at these other plants.

9. Those striking employees who left work and

joined the strike on or after June 26, 1970, were

written a letter by Anderson directing them to re-

turn to work by a deadline date. Anderson testified

that those employees who returned after the deadline

specified in the letter were required to fill out new

44a

employment applications, and return as new em-

ployees at the bottom of the seniority list. Anderson

further testified that seniority played a part in lay-

offs, holiday and vacation pay.

I find that those employees who failed to return

to work prior to the deadline specified in the Com-

pany’s letter to striking employees were required

to file new applications for employment and were

treated as new hires.

10. Approximately July 15, 1970, Banano issued

instructions to his subordinates who, at the time,

were organizing employees at the Company’s other

Tennessee, South Carolina and Alabama plants, to

establish picket lines at those plants in support of

the strike of employees at the Decaturville plant.

Some or most organizational activities, as such, as

those plants were also discontinued and picket lines

were displayed at those locations with the same word-

ing as displayed on the signs in Decaturville. No

demands for recognition as employee bargaining rep-

resentative have been made upon the Company at

any time during the entire course of the Union or-

ganizing effort. I find that most of the Company’s

employees at Decaturville Sportswear Co., Inc., did

on June 23, 1970, and thereafter strike in protest

of the discharges of the employees of the pressing

department at Decaturville Sportswear Company,

Inc., and also in support of the Union’s organiza-

tional efforts there.

45a

D. CONCLUSIONS—DECATURVILLE

1. This Court has jurisdiction over the subject

matter and the parties in this action.

2. Regarding all of the wage increases alleged

in the petition, as amended, the Petitioner failed to

sustain its burden of proof that these wage increases

violated either the National Labor Relations Act or

the decree of this Court. See N.L.R.B. v. Cleveland

Trust Co., 214 F.2d 95 (6th Cir. 1954). See Hago-

pian v. N.L.R.B., 395 F.2d 947 (6th Cir. 1968),

wherein it was held that it must be shown that the

benefits were granted to discourage a union organiza-

tion effort. It was established that the granting of

the wage increases was part of an established prac-

tice, grounded upon legitimate and substantial eco-

nomic justifications that were essentially uniform in

character. There was insufficient evidence establish-

ing in a clear and convincing manner that the grant-

ing of these wage increases had any adverse effect

upon the Section 7 rights of the employees of the

Company or that the wage increases were granted

primarily as a result of anti-union motivation by

the Company. A part of the increases granted were

as a result of minimum wage requirements. I con-

clude that the Company violated neither the Na-

tional Labor Relations Act nor the decree of this

Court in granting these wage increases. Louisburg

Sportswear Co. v. N.L.R.B., 462 F.2d 380 (4th Cir.

1972); Hagopian & Sons, Inc. v. N.L.R.B., supra;

and Jervis Corp. v. N.L.R.B., 387 F.2d 107 (6th Cir.

46a

1967). I further conclude that the raises did not

interfere with employees in the exercise of their

rights to self-organization.

8. Company policies regarding increased quality

control and inspection requirements in the pressing

department, as well as in other departments, coin-

cided with the administration of the Decaturville

plant under its new manager, Lloyd Anderson, be-

ginning in 1969. Profits were not as good as in

prior years; problems had been encountered with the

previous plant manager, Rindone. This policy was

grounded upon legitimate and substantial economic

justifications, and resulted in an increase in the

quality of the work at the Decaturville plant. There

was insufficient evidence that this policy constituted

an unfair labor practice; they were not “inherently

destructive,” and did not violate the Court’s decree.

N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26,

32 (1967). (See particularly, Judge Harlan’s dis-

sent).

4. The Company did not discourage Union mem-

bership nor engage in an unfair labor practice with-

in the meaning of Section 8(a)(1) and (3) of the

National Labor Relations Act, nor violate this

Court’s decree, by discriminating against, intimidat-

ing, or discharging Maria Stanfill, Betty Williams,

Benson Rushing, Martha Thomas, Ruth Bradley

Campbell, Lois T. Page, or Evelyn Phillips.

5. The Company did not unlawfully nor in viola-

tion of this Court’s decree interrogate as to union

activity or sympathy, or put under surveillance, Maria

47a

Stanfill, Betty Williams, Martha Thomas, Doris

Thorp, Ruth Bradley Campbell, Nellie Miils, Paulette

Rushing, Lois T. Page, or Evelyn Phillips. Jervis

Corp. v. N.L.R.B., supra, and N.L.R.B. v. Dale In-

_ dustries, 355 F.2d 851 (6th Cir. 1966).

6. R. C. Brashers was discharged, at least in sub-

stantial part, by reason of his union activity and

this conduct constituted an unfair labor practice.

Under the circumstances, I also find that it violated

(a) of the Court’s decree in respect to Brashers.

7. Maria Stanfill, Betty Williams, and Linda Wil-

liams were interrogated concerning their or other

employees’ union organizational activities and/or their

union opinions contrary to Section (j) of the Court’s

decree. The nature of the interrogation, however,

was not such conduct that also amounted to a viola-

tion of other portions of the Court’s decree with re-

spect to threatening employees, warning or coercing

them. Southwire Co. v. N.L.R.B., 383 F.2d 235 (5th

Cir. 1967), Suprenant Mfg. Co. v. N.L.R.B., 341

F.2d 756 (6th Cir. 1965).

8. The Company did discriminate against and re-

fuse to re-hire Benny Hamm and R. C. Brashers be-

cause of their Union activity and adherence, and the

fear that they would continue such activity while on

the Company payroll.

9. The Company did refuse to hire Donald Petti-

grew primarily because of a fear that he would join

the picketing and the strike then in progress at the

plant.

48a

10. While there was substantial evidence to show

that the Company refused to re-hire Ruth Bradley

Campbell, Evelyn Phillips, Judy Scott Maness and

Peggy Cagle because of their Union proclivities, there

was also substantial evidence to show other sound

and justifiable business reasons for the decision not

to take these employees back. Both Campbell and

Phillips had poor previous records and were serious

employment risks either from a health standpoint

or for production or attitude reasons. Both Maness

and Cagle had quit to join the strike (for differing

reasons) and refused immediate reinstatement or to

communicate with the Company within a prescribed

period in which replacements were sought and ac-

cepted. I would conclude that appropriate relief,

if any, should be limited to re-hiring as and when a

next available opening were determined to exist at a

comparable position to that held at the time of ter-

mination. I do not constitute such refusal to re-hire

these four employees as an intentional or deliberate

violation of the Court’s decree as to these employees.

N.L.R.B. v. Ogle Protection Service, 375 F.2d 497,

505 (6th Cir. 1967) and Tompkins Motor Lines v.

N.L.R.B., 337 F.2d 325, 330 (6th Cir. 1964).

11. Because of the circumstances of his conduct

on June 23, 1970, employee Nelson Rushing was

‘insubordinate and, accordingly, was discharged for

just cause, even though Rushing was also protest-

ing what he believed was unfair. The Company’s

actions surrounding his discharge were not shown to

have been prompted essentially by any anti-union con-

49a

siderations. The discharge of Nelson Rushing, there-

fore, constituted neither an unfair labor practice nor

a violation of the decree of this Court.

12. The remaining pressers were not justified in

their demands that Rushing be reinstated or rehired

by plant manager Anderson on June 23, 1970, before

they would return to work. These pressers were not

discharged by the Company unreasonably under the

circumstances, despite anti-union sentiment on the

part of the Company.

13. If, however, the Company acted improperly,

unlawfully or unreasonably in discharging the pres-

sers other than Nelson Rushing on June 23, 1970,

for engaging in a concerted work stoppage, they

should not now in equity be entitled to reinstatement

since the Company offered to them full reinstatement

on June 24, 1970, by letter which most chose to

ignore or to decline. The offer of the Company was

a bona fide effort to reinstate. If accepted, the

pressers on strike would not have sustained any

diminution in seniority, earnings, or any other privi-

leges which they enjoyed prior to their termination.

All employees who went out on strike in protest of

Rushing’s discharge, claiming such to be an unfair

labor practice, were in fact economic strikers as

well as unfair labor practice strikers. AHI Machine

Tool & Die, Inc. v. N.L.R.B., 4382 F.2d 190 (6th Cir.

1970); LTV Electrical Systems, Inc. v. N.L.R.B.,

408 F.2d 1122 (4th Cir. 1969). It has been con-

cluded that Nelson Rushing’s discharge was not an

unlawful or unfair labor practice under the circum-

50a

stances of insubordination. His actions were dis-

ruptive of order and discipline. Hagopian & Sons, v.

N.L.R.B., supra. Although the other pressers were

upset about the new and changed procedures in their

department, they walked off their jobs primarily in

sympathy with Rushing. Theirs was a concerted

protest as well, however, involving working condi-

tions, but it was not because the Company had il-

legally discharged Rushing but, rather because Rush-

ing was fired regardless of its illegality, and because

of their frustration over working conditions. The

Union attempted to make the strike an unfair labor

practice strike rather than an economic one. This

strike instigated by the pressers has connotations of

concerted activity protected by the National Labor

Relations Act, and was activity within the broad

purview of the National Labor Relations Act, though

the strike also was essentially economic in its nature,

because the imposition of stricter quality control pro-

cedures has also been concluded not to have been

an unfair labor practice.

14. In summary, with respect to the pressers, it

is concluded:

(a) the imposition of tighter quality control

procedures was not an unfair labor practice nor

violative of this Court’s decree.

(b) Nelson Rushing’s actions in protesting the

new quality control procedures also amounted to

insubordination in his public and adamant refusal

to discuss his grievance privately with or to obey

5la

reasonable orders of the plant manager; therefore,

discharging him was not an unfair labor practice

nor violative of this Court’s decree.

involve working conditions in the plant.

(d) the action of the other pressers in walking

off in support of Rushing was concerted activity in-

volving both working conditions and protest over a

lawful firing. N.L.R.B. v. MacKay Radio Co., 304

U.S. 333 (1938), N.L.R.B. v. Phaostron Instrument

Co., 344 F.2d 855 (9th Cir. 1965), and Hagopian &

Sons v. N.L.R.B., supra.

15. It was not an unlawful or unfair labor prac-

tice, nor one violative of this Court’s Orders for the

Company to replace striking employees with others

in an effort to carry on its business. Nor is the

Company bound to discharge those hired to fill the

places of strikers upon their subsequent election to

resume their employment. The Company should there-

fore only be required to replace those unconditionally

seeking reemployment having abandoned the strike

as and when there were vacancies. This, I conclude,

is all that the Company should be required to do

with those strikers (pressers and others) who had

not otherwise been terminated for just cause (such

as Ruth Campbell) and who did seek re-employment

(as Cagle and Maness). N.L.R.B. v. MacKay Radio

Co., 304 U.S. 333, 345-6 (1938) and Kellog Co. v.

N.L.R.B., 457 F.2d 519 (6th Cir. 1972).

16. Liability in civil contempt proceedings, such

as this one, should be established only upon a show-

52a

ing of “clear and convincing evidence,” that respond-

ent has engaged in contemptuous conduct violative

of the Court’s decree. N.L.R.B. v. Local 5881 UMW,

393 F.2d 853 (6th Cir. 1963) and N.L.R.B. v.

Lynair, Inc., 380 F.2d 286 (6th Cir. 1967).

17. We have found “clear and convincing evi-

dence” of violation of the Court’s order by respondent

with respect only to discrimination or misconduct

in the particulars specified. The Board has failed

to sustain its contentions, except as indicated, as to

Maria Stanfill, Betty Williams, Benson Rushing,

Martha Thomas, Doris Thorp, Ruth Bradley Campbell,

Nellie Mills, Paulette Rushing, Lois T. Page and

Evelyn Phillips. It has sustained only those portions

of its charges of civil contempt with respect to

R. C. Brashers, Bennie Hamm, Donald Pettigrew,

Linda Williams, Judy Maness (in part), and Peggy

Cagle (in part). The Nelson Rushing episode and the

pressers’ walkout have been discussed separately.

Il. TROUSDALE, TENNESSEE PLANT

A. Wage Increases

1. Marlene’s plant at Trousdale was charged by

the Board with granting wage increases in violation

of Section (d) of this Court’s cease and desist order,

the pertinent language of which has heretofore been

set out at page two.

oe eer 1a te 2 ee sow

58a

2. The Company’ granted a wage increase to

hourly rated employees on or about July 14, 1969,

January 12, 1970 and July 1, 1970. The base rate

for production or time workers was increased also

from $1.75 to $1.85 per hour in January 1970, and

again to $2.00 per hour in July, 1970. From time

to time, the Company at somewhat regular intervals

had previously granted similar wage increases, some

of which were necessary to comply with minimum

wage statutory increases. Base rates were attempted

to be maintained at higher than minimum wage scales

as was the case at Decaturville. Approximately 75%

of the employees were maintained at rates higher

than minimum wage by reason of the periodic in-

creases and adjustments.

8. At the Company’s Trousdale Manufacturing

Co., Inc. plant in Hartsville, Tennessee, a wage in-

crease was granted effective July 14, 1969, to 104

hourly-rated employees, normally in a ten cent in-

erement in accordance with general past practices

of the Company.

4. On July 13, 1970, 155 hourly-rated employees

at the Trousdale plant were granted wage increases

in amounts varying from five cents to fifteen cents

per hour, and the base rate for piece-rated employees

was increased from $1.75 to $1.85 per hour.

5. On or about July 25, 1970, at its Trousdale

plant, the Company granted twenty-six of its em-

* “The Company” refers here to Trousdale Manufacturing

Company, a wholly owned subsidiary of Marlene Industries

Corporation.

54a

ployees wage increases in increments ranging from

five cents per hour to twenty-five cents per hour and,

in addition, increased the base rate for piece-rated

employees from $1.85 to $2.00 per hour.

6. The plant manager at Trousdale during the

period of these increases was Dan Miller who ter-

minated his employment with Trousdale in 1971.

He was not available to testify, but he approved the

three increases made, and furnished the list by which

the payroll clerk effectuated these increases.

7. The Union was actively attempting to organize

the Trousdale facility during 1969 and 1970, and

Union organizers were present to assist in this ac-

tivity. In 1969 and 1970, Marlene’s profits were

down from prior years.

8. I find that there is not sufficient evidence upon

which to infer or to determine that these wage in-

creases were granted to defeat the organizing ef-

forts of the Union rather than to conform to past

practice and experience.

B. Cole-Robinson Incident

1. Robert Cole was general manager for Marlene,

being general supervisor and superior over Dan

Miller, the plant manager, at Trousdale. The I.L.G.W.

Union began to picket this plant in July 1970, pur-

portedly as a follow through and in broad protest

to alleged unfair labor practices at Decaturville.

2. Burle Robinson was an experienced Union or-

ganizer for I.L.G.W. Union assisting in the picketing

and the strike at the Trousdale plant. He had been

55a

at Trousdale since January 1969, trying to organize

there.

8. During the late afternoon on or about August

19, 1970, Robinson was on the picket line nearby

where Cole was sitting in an automobile photograph-

ing the activity. Mutual recriminations for a few

moments passed between the two wherein Cole ac-

cused Robinson of threatening employees about what

the Union was going to do. At the same time Cole

appeared to threaten Robinson about his role in the

ongoing strike. No blows were struck, and Cole de-

nied that he was “threatening” Robinson in the en-

counter, according to a witness who was asked by

Robinson to take a note of what Cole was doing.

Cole is no longer with Marlene and was not present

to testify.

4. Both Cole and Robinson paid minor fines in a

civil proceeding resulting from this episode.

5. I find that there is insufficient evidence to

support the Board’s charge that this conduct of Mr.

Cole amounted to any such threat, coercion, or in-

timidation as prohibited by the Court’s Order or by

the National Labor Relations Act under the meager

circumstances adduced in proof.

C. Conclusions

1. This Court has jurisdiction over the subject

matter and the parties in this action.

2. The Court’s conclusion is that none of the Com-

pany’s acts at Trousdale under the circumstances,

adduced by the proof, sustain the National Labor

56a

Relations Board’s charges of interference, restraint

or coercion in respect to the employees’ rights to self-

organization.

3. Only one employee or former employee of The

Trousdale plant appeared in support of these charges,

and he was a striking employee, and his conduct and

union activities were in no way effected or shown to

have been influenced adversely by Company activities

at Trousdale.

III. WESTMORELAND, TENNESSEE PLANT

A. Wage Increases

1. The same part of the Court’s cease and desist

order referred to in IA 1. and IIA 1. is applicable

to the wage increases granted at Westmoreland.

29. The Company® granted, on or about July 14,

1969, at its Westmoreland Manufacturing Corpora-

tion plant, a wage increase to three of its employees

in accord with its general past practices.

8 On or about January 24, 1970, the Westmore-

land plant granted wage increases to twenty-seven of

its hourly-rated employees in amounts varying from

five cents to twenty cents per hour.

4. On or about July 25, 1970, at its Westmoreland

Manufacturing Corporation plant, the Company

granted wage increases to thirty-three of its hourly

rated employees in amounts ranging from ten cents

s“The Company” refers here to Westmoreland Manufac-

turing Corporation, a wholly owned subsidiary of defendant

Marlene Industries Corporation.

eS a

57a

to twenty cents per hour and in July 1970, the West-

moreland Manufacturing Corporation plant advanced

the base rate for piece-rated employees from $1.85

to $2.00 per hour.

5. The 1.L.G.W. Union had actively pursued an

organizational campaign prior to July 1969. Wage

increases had periodically been granted at this plant

from 1962 to 1969 both before and during Union

organizational efforts. The wage increases granted

were similar in character to those previously awarded,

and in some instances were required to bring wages

in compliance with minimum wage standards, or by

reason of necessary adjustments to wage or rate

scales because of minimum wage requirements.

6. From approximately 1965 through 1971, the

practice at Westmoreland had been generally for the

plant manager to review earnings and wages of em-

ployees in most categories twice a year. The plant

manager would then forward his recommendations

with respect to wage adjustments to corporate execu-

tives and his supervisors at Marlene Industries. In-

creases granted have brought about proportionately

more raises to hourly workers than to production

workers on production scales. Practices at Trousdale

and Westmoreland plants have been related and

generally similar over the years in question. Final

decisions about wage adjustments and increases have

always been made at Marlene Industries’ offices.

7. Picketing began by the Union at Westmoreland

on July 16, 1970, and continued to the date of these

hearings.

58a

B. Conelusions

1. Petitioner, National Labor Relations Board,

has failed to sustain its burden of proof that these

wage increases at Westmoreland violated either the

National Labor Relations Act or the decree of this

Court. Rather, the evidence indicated that the in-

creases in question were grounded upon legitimate

economic justification and were in accord with past

practices.

IV. RECOMMENDATIONS

A. The special master recommends that Marlene

Industries Corporation, Decaturville Sportswear Com-

pany, Inc., Trousdale Manufacturing Company and

Westmoreland Corporation be required to continue

to comply fully. with and obey this Court’s judg-

ment and decree of January 29, 1969.

B. R.C. Brashers should be offered immediate and

full reinstatement to his former or substantially

equivalent position at Decaturville without prejudice

to his seniority as of August 18, 1969.

C. Benny Hamm should be offered immediate and

full reinstatement to his former or substantially

equivalent position at Decaturville without prejudice

to his seniority as of June 15, 1970.

D. Donald Pettigrew should be offered a position

at Decaturville equivalent to that made available to

others applying for employment with him in the

pressing department as of June 23, 1970.

E. R. C. Brashers, Bennie Hamm and Donald

Pettigrew should be made whole after supplemental

a ea ee

59a

proceedings have been held by the Board to fix a

reasonable amount necessary to reimburse said em-

ployees, taking into account any mitigating factors,

for any losses sustained by reason of Decaturville’s

failure to employ or re-employ them.

F. Decaturville supervisors should be required to

be instructed and cautioned in writing that they may

not question or interrogate or interfere with any

present or prospective employee with respect to his

or her union interest, membership or activity.

G. Decaturville should be required to post a no-

tice on all its bulletin boards for a period of sixty

(60) days with a copy to the local President and

Secretary of the local I.L.G.W. Union, signed by its

plant manager, stating the basic provisions and ef-

fects of the Court’s order of purgation, if it is held

to be in civil contempt, and setting forth that it will

affirmatively henceforth not interrogate, lay off, dis-

charge or refuse to re-hire employees because of

lawful concerted or Union activities, or otherwise in

any other manner interfere with, restrain or coerce

employees in the exercise of their protected activi-

ties. Further, such posted notice shall be placed con-

spiciously and maintained in a clearly legible condi-

tion for said consecutive sixty (60) day period.

H. Peggy Cagle and Judy Maness should be of-

fered a position at Decaturville comparable or sub-

stantially equivalent to the positions held by them

at their termination when they engaged in concerted

activity during June 1970. Said reinstatement should

be conditional, however, upon the first availability of

60a

such a position at Decaturville. When and as said

Cagle and Maness are reinstated, they shall retain

their seniority as of September 8, 1970.

I. Upon request by the LL.G.W. Union, Decatur-

ville should immediately grant said Union and its

representatives reasonable access, for a Six month

period, to plant bulletin boards.

J. Decaturville employees should be permitted to

have reasonable access to said Union organizers dur-

ing non-working time only at plant approaches and

Decaturville parking lots for a period of six months

from the issuance date of contempt judgment, if

any, subject, however, to reasonable Company regu-

lations in the interests of plant efficiency and disci-

pline.

K. Decaturville should be required at its expense

to publish in form to be approved by the National

Labor Relations Board in newspepers of general cir-

culation in Decatur County, Tennessee, the essential

terms and provisions of the Court’s order, once a

week for four consecutive weeks, at a reasonable time

designated by the Board.

L. All other employees of the Decaturville plant

who engaged in concerted activity beginning in June

1970, assertedly protesting unfair labor practices or

conditions, and who have made unconditional appli-

eation for reinstatement or re-employment shall be

offered substantially equivalent positions with restor-

ation of seniority rights to the date of their termina-

tion in June 1970, (but not during the period of

strike prior to unconditional application for rein-

6la

statement). Such reinstatement or re-employment

shall, however, be made only as and when such posi-

tions become available, taking into account the sen-

iority positions and status of such re-applying em-

ployees.

M. Decaturville should be required to file a sworn

statement with the Court within 20 days after any

adjudication of contempt, and again after the posting

and/or publishing period specified in G and K show-

ing what specific steps have been taken to comply

with the Court’s directions and orders.

N. Decaturville should be required to pay all costs

and out-of-pocket expenditures incurred by the Na-

tional Labor Relations Board in connection with in-

vestigation and hearing of these proceedings relating

to Decaturville only.

O. That the Court take such other and further

action and grant such other and further relief as

may be deemed just, reasonable and proper in re-

spect of the findings, conclusions and recommenda-

tions herewith submitted as to Decaturville, Trous-

dale and Westmoreland plants.

Respectfully submitted,

/s/ Harry W. Wellford

Special Master

Date: 10-5-73

62a

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 18,064

18,154

18,249

18,250

18,256

NATIONAL LABOR RELATIONS BOARD, PETITIONER

vs.

DECATURVILLE SPORTSWEAR CO., INC., ET AL.,

RESPONDENTS

MEMORANDUM

On or about October 5, 1973, as Special Master,

findings, conclusions and recommendations were is-

sued in these causes on proceedings involving Na-

tional Labor Relations Board charges of civil con-

tempt against respondent in respect to its three Ten-

nessee manufacturing plants (at Decaturville, Trous-

dale and Westmoreland). Reference is made to these

findings, conclusions and recommendations as they

may bear upon similar charges in these cases with

respect to two South Carolina manufacturing plants

and the Alabama plant, Frisco Sportswear, referred

to herein as Loris, Aynor and Frisco. The Special

Master conducted hearings at Florence, South Caro-

lina, in connection with the charges involving the

South Carolina plants and at Mobile, Alabama, with

respect to the Alabama plant. For specific reference

63a

to the underlying decree of the Court of Appeals for

the Sixth Circuit, see 406 F.2d 886 (6th Cir. 1969)

and the previous findings and conclusions hereinabove

referred to.

V. Loris PLANT

A. Newspaper article findings

1. The International Ladies’ Garment Workers’

Union, AFL-CIO, (herein called “the Union’), has

been attempting to organize the Company’s employees

at its Tennessee, South Carolina and Alabama plants

since 1965. During the summer of 1969, the organ-

izing campaign was intensified as a result of the

Court’s decree, which afforded the Union access to

the Company’s parking lots and bulletin boards in

furtherance of the Union’s organizational efforts. The

Loris Sentinel, which appears in the plants, is a

weekly newspaper with circulation in the geographic

area in which the towns of Loris and Aynor, South

Carolina, and the Loris and Aynor plants are lo-

cated. Prior to the period in question, the Loris Sen-

tinel was customarily found in a newspaper rack

located in the lobby next to the personnel office of

the Loris plant. The rack, although located near an

entrance, was not the entrance normally used by

employees in entering and leaving the plant.

During the summer of 1969, as the Union’s organ-

izational drive intensified on several occasions, em-

ployees observed copies of this paper on tables in the

plant cafeteria. These editions, read and discussed by

employees, warned that success by the Union in its

64a

campaign would be destructive to the local economy—

would take workers “down the road to disaster” and

would bring chaos, loss of income and industry, as

well as strife to the community. The newspaper also

urged employees who had signed Union authorization

cards to revoke them and offered suggestions about

withdrawing from the Union. Previously, employees

had not observed copies of the newspaper, except per-

haps a casual few copies, in any area of the plant

other than the newspaper rack in the lobby, and

previously copies of the paper had not been free. A

company official, Epstein, also observed editions of

the Loris Sentinel in the cafeteria on several occa-

sions during this period of time, but made no attempt

to disavow the warnings of consequences pictured

therein if the Union were successful. This official

(nor any other) made no statement to employees con-

cerning the papers hostile comments about the Union.

B. Wage Increases

1. The company granted a wage increase to 306

of its hourly-rated employees effective July 9, 1969.

This wage increase varied in amount from five cents

per hour to fifteen cents per hour. In the past, the

company had from time to time granted wage in-

creases of similar amounts to employees having the

same or equivalent job classifications.

9. The company on or about January 2, 1970,

also granted a wage increase to 270 of its hourly-

rated employees. The increase it granted was gen-

erally in the amount of ten cents per hour. In addi-

EE ———E——E—E—eee

65a

tion, in January of 1970, the company advanced the

base rate for piece-rated employees from $1.75 to

$1.85 per hour. This increase in the base rate did

not, however, result in a wage increase to all of the

employees compensated on a piece-rate basis. Both

the wage increase of ten cents per hour to the hourly-

rated employees and the change in the base rate from

$1.75 to $1.85 per hour were in accord with the com-

pany’s practice of granting periodic wage increases

and/or changes in the base rate and were motivated,

at least in part, by its desire to retain its competitive

position in the labor market in the Horry County,

South Carolina area.

3. Herman Epstein, General Manager of all South

Carolina plants in 1969, who subsequently became

manager of the Loris plant in 1970, testified that

increases were granted to employees every six months

pursuant to past practice. Regarding the increases

at the Loris plant, however, Epstein testified that

there was no written criteria governing the granting

of increases but that it was company policy. He had

been directed to grant the increase in July, 1970, by

his superior, General Manager Robert Cole, although

Cole had not specifically advised him on the granting

of increases previously. Epstein testified that the

eriteria for the increases, based on his own decision,

was to bring employees up to employment “stand-

ards,” considering “job evaluation” and giving em-

ployees a “living wage.” Seniority played no par-

ticular part in granting the increases, although em-

ployee merit was a consideration.

66a

4. On or about July 22, 1970, the company

granted wage increases to 262 of its hourly-rated

employees and increased the base rate for employees

compensated on a piece-rate basis of ten cents per

hour to the hourly-rated employees and the change

in the base rate of $1.85 to $2.00 per hour were in

accord with the company’s past practice of granting

periodic wage increases and/or changes in the base

rate and were motivated, in part, by the company’s

desire to retain its competitive position in the labor

market in the Horry County, South Carolina area.

C. Pressing Department Discharges

1. Delphine Reeves began her employment with

Loris Manufacturing Company in February, 1968,

and at the time of her discharge on March 23, 1970,

was working as a bulk or form presser. Reeves

signed a Union card in June of 1969, and a month

later began wearing a Union badge in the plant.

She was a member of the Union’s in-plant organizing

committee, and as such, solicited and obtained signed

Union authorization cards from other employees and

was an active Union adherent. Reeves had two sep-

arate conversations with Epstein, the plant manager,

relating to her right to wear a Union button and

Epstein’s admonition that it did not give her any

special privileges. Reeves’ name appeared in a Union

sponsored advertisement in the August 27, 1969 edi-

tion of the Loris Sentinel. The Company became

aware of Reeves’ Union activity in 1969, on or before

her conversations with Plant Manager Epstein.

67a

2. Postell Goff, Reeves’ brother, began his em-

ployment with Loris in October of 1967, and was a

presser at the time of his discharge. Goff signed a

Union card in June of 1969, thereafter volunteered

to be an organizer, and was active on the Union’s be-

half. Goff appeared on a Union sponsored radio pro-

gram during this period. Goff’s signature also ap-

peared in the Union sponsored advertisement in the

Loris Sentinel. The Company became aware of

Postell Goff’s Union activity in 1969.

8. On Friday, March 20, 1970, Charles Neeley,

a supervisor in the pressing department at the Loris

plant, requested Delphine Reeves and Postell Goff,

pressers, along with sixteen other pressing depart-

ment employees, to work five hours on Saturday,

March 21, 1970. Work on Saturday was voluntary

and was not considered overtime unless an employee

had already worked forty hours prior to the com-

mencement of Saturday work. Reeves and Goff agreed

to work and reported at 6:55 Saturday morning,

March 21, 1970. At approximately 10:00 A.M. on

Saturday morning, March 21, 1970, Reeves and

Goff, without permission from their foreman, Charles

Neeley, left the pressing area; clocked out; and walked

out of the plant. Neeley, a relatively new supervisor,

contacted plant manager Herman Epstein and ad-

vised him of this development and requested instruc-

tions. Epstein told Neeley to notify Olin Roscoe, head

of the pressing department, that Reeves and Goff had

voluntarily terminated their employment by walking

off the job without permission and that they were

to be terminated on Monday, March 23, 1970. When

68a

Reeves and Goff reported for work on Monday, March

23, 1970, they were taken by Roscoe and Neeley to

the personnel office where Epstein advised them that

they had walked off the job without permission and

were considered by the Company has having volun-

tarily terminated their employment. Both employees

protested to Epstein that Neeley had granted them

permission to leave work early the previous Satur-

day.

Both Reeves and Goff had worked frequently on

past Saturdays and had not refused the request of

supervisors to do so. Both employees had on occasion

requested an opportunity to leave early in the past

and had been granted permission to do so without ob-

taining a sign-out slip. Both had good work records.

D. Refusal to Reinstate Strikers

1. The strike which began at the respondent Com-

pany’s Decaturville, Tennessee plant on June 23,

1970, resulted in a strike on July 16, 1970, at the

Company’s Loris and Aynor, South Carolina plants,

of employees who supported the striking employees

at the Decaturville plant. Approximately two weeks

after the commencement of the strike at Loris, em-

ployees Brice Todd, Robert Stephens and Robert

Richardson left the plant and joined the strike. Sub-

sequently, Plant Manager Epstein wrote letters to

all the striking employees directing them to return

to work by a specified date or be replaced. None of

these three employees returned by the deadline.

Thereafter, however, all three employees quit the

strike, and in October of 1970, Todd, Stephens and

ne ee

- ets ete

ee eee

am ana eae

69a

Richardson visited the plant and unconditionally of-

fered to return to work. Epstein advised them that

they had not returned by the date stipulated in the

letter sent to them, that replacements had been hired,

that the latter would not be discharged and that they

would be returned to work as soon as a job became

available. Subsequently, Richardson was rehired on

November 7, 1970. Stephens was rehired on Decem-

ber 3, 1970. Todd was rehired late in October and

was injured in November, 1970.

E. Conclusions

1. This Court has jurisdiction over the subject

matter and the parties in this action as to Loris, a

wholly owned subsidiary of Marlene Industries, Inc.

2. Although the issues of the Loris Sentinel con-

tain antiunion articles which could be categorized as

threats, evidence is lacking to establish that the Loris

Sentinel or its editor were acting as. agents of the

Company. NLRB vy. Lake Butler Apparel Company,

392 F.2d 76 (5th Cir. 1968).

3. During the summer of 1969, on several occa-

sions, copies of the Loris Sentinel, containing the

aforesaid warnings were made freely available to em-

ployees of Loris Manufacturing Company on plant

premises, Employees could reasonably feel that the

Company was utilizing the mewspaper as a vehicle

for or means of communication to its employees in

predicting economic harm and even possible plant

closure in the event of unionization. Under the cir-

cumstances, they could reasonably be regarded as

70a

threats as well as honest predictions; that the Com-

pany took no substantial steps to disavow or disas-

sociate itself from these newspaper account. The

newspaper, however, was not a Company “agent”

and enjoyed the freedom to predict even unreasonable

consequences of unionization of the Company plant.

The Company should have in some manner disavowed

that it was in any way responsible for newspaper pol-

icy and opinion.

4. Whether the appearance of these editions of the

newspaper in the Loris cafeteria was a violation of

the Court’s decree depends on the resolution of two

issues. First, were the statements protected by the

First Amendment and Section 8(c) of the Act or did

they impermissibly interfere with, restrain and co-

erce employees in their protected right to join or as-

sist the Union? Secondly, if the statements did so

interfere and coerce, was the Company under any

obligation to disavow them?

The test for determining whether statements are

constitutionally protected or actionable violations was

laid down by the United States Supreme Court in

N.L.R.B. v. Gissel Packing Company, 575 U.S. 617

(1969) as follows:

« an employer is free to communicate to

his employees any of his general views about

unionism or any of his specific views about a

particular union, so long as the communications

do not contain a ‘threat of reprisal or force or

promise of benefit.’ He may even make a pre-

diction as to the precise effects he believes union-

ization will have on his company. In such a case,

7la

however, the prediction must be carefully phrased

on the basis of objective fact to convey an em-

ployer’s belief as to demonstrably probable con-

sequences beyond his control or to convey a man-

agement decision already arrived at to close the

plant in case of unionization. * * *

‘. . [e]onveyance of the employer’s belief,

even though sincere, that unionization will or

may result in the closing of the plant is not a

statement of fact unless, which is most im-

probable, the eventuality of the closing is cap-

able of proof’.” (page 618)

The Company could have disavowed these grave

newspaper predictions and advice to foresake the

Union, and could have assured its employees that

though it was opposed to the Union, it would not take

action on its own initiative for reasons unrelated to

economic necessities. The Company did neither, but

neither did it attempt to adopt the newspaper opin-

ions as its own. See Amalgamated Clothing Workers

v. N.L.R.B., 371 F.2d 740, 744 (C.A. D.C., 1966).

5. Regarding all of the wage increases alleged in

the petition at Loris, the petitioner failed to sustain

its burden of proof that these wage increases violated

either the National Labor Relations Act or the decree

of this Court. See NLRB v. Cleveland Trust Co., 214

F.2d 95 (6th Cir. 1954) and Hagopian v. NLRB, 395

F.2d 947 (6th Cir. 1968). The granting of the wage

increases was part of the Company’s practice and

was grounded in principle measure upon legitimate

economic considerations. There was no evidence of-

fered which establishes in a clear and convincing

72a

manner that the granting of these wage increases had

any substantial adverse effect upon the Section 7

rights of the employees of the company or that the

wage increases were granted by reason of antiunion

motivation, The Company violated neither the Na-

tional Labor Relations Act nor the decree of this

Court in granting these wage increases. Louisburg

Sportswear Co. v. NLRB, 462 F.2d 380 (4th Cir.

1972) ; Southern Foundation v. NLRB, 446 F.2d 1063

(6th Cir. 1969); Hagopian & Sons, Inc. v. NLRB,

supra.

6. Employees, Reeves and Goff, are given the bene-

fit of doubt, consistent with their good records, that

they would not have walked out of the Loris plant

without any prior notice on March 21, 1970, or ab-

sent some misunderstanding about their leaving un-

der all the circumstances. In any event, the Com-

pany’s action in summarily discharging them, in light

of their known Union activities and animus, indi-

cates a disproportionately severe penalty under all

the circumstances. Some disciplinary measure may

have been indicated, but there is an inference that

may be drawn that the harsh results may well have

been prompted by anti-union considerations. This con-

clusion is drawn despite recognition that it is not

the Court’s function to substitute its judgment in

the ordinary case for that of management. NLRB vy.

Ogle Protection Service, 375 F.2d 497 (6th Cir. 1967).

NLRB v. Berry Manufacturer, 422 F.2d 748 (10th

Cir. 1970) and NLRB vy. Stemum Mfg., 423 F.2d 737

(6th Cir. 1970).

73a

7. There is insufficient clear and convincing proof

establishing that picketing at the Loris plant was

solely to protest an unfair labor pract’ce. Both Todd

and Stephens who joined the picket line admitted

that they had walked out of the plant, without no-

tice to the company and without making any effort to

advise management of the nature of their grievances,

if any. All “concerted activity” is not protected by

Section 7 of the National Labor Relations Act. AHI

Machine Tool & Die, Inc. v. NLRB, 432 F.2d 190

(6th Cir. 1970); NLRB v. Sunbeam Lighting Com-

pany, 318 F.2d 661 (7th Cir. 1963) ; NLRB v. Blades

Manufacturing Corporation, 344 F.2d 998 (8th Cir.

1965). Todd and Stephens joined the pickets in front

of the company’s plant in Loris in an effort to get a

union into the plant, as well as to protest what they

considered unfair or unjust practices. They assumed

a status of economic strikers who might be subject

to permanent replacement under certain conditions.

NLRB vy. MacKay Radio & Telegraph Co., 304 U.S.

333 (1938); NLRB v. Wheatwood Trailer Co., 389

U.S. 375 (1967); NLRB v. International Van Lines,

448 F.2d 905 (9th Cir. 1971). Since Todd and Steph-

ens both admitted receiving letters from the company

directing them to return within a reasonable time, by

failing to return they rendered themselves subject

to replacement. The company did, in fact, replace

them and did not violate either the National Labor

Relations Act or the Court’s decree when they were

not immediately reinstated when they applied for

work on October 5, 1970. The company, within a

74a

reasonably short period of time did rehire them. This

action is not construed to constitute a violation of

the Court’s decree.

VI. AYNOR PLANT

A. Wage Increases,

1. On or about July 4, 1969, the company granted

a wage increase to twenty-seven of its hourly-rated

employees in amounts varying from five to fifteen

cents per hour.

2. On or about July 7, 1970, the company granted

wage increases to forty of its hourly-rated employees

in amounts varying from five to twenty cents per

hour. On or about January 2, 1970, the company

advanced the base rate to piece-rated employees from

$1.75 to $1.85 per hour.

8. On or about July 2, 1970 and July 22, 1970, the

company granted wage increases to forty-eight of its

hourly-rated employees. On or about July 22, 1970,

the base rate for piece-rated employees was increased

from $1.85 to $2.00 per hour.

4. The increases were not dissimilar to those grant-

ed periodically in prior years to employees in this

plant. They also coincided with minimum wage in-

creases during the applicable period.

B. Conclusions.

1. This Court has jurisdiction over the subject

matter and the parties in this action with regard to

75a

Aynor, a wholly owned subsidiary of Marlene In-

dustries.

2. The petitioner failed to sustain its burden of

proof that these wage increases granted by Aynor

violated either the National Labor Relations Act or

the decree of this Court. See the authority cited in

the Loris conclusions in this respect. The wage in-

creases were part of a practice having legitimate and

substantial economic justification. These wage in-

creases were not shown to have had any significant

effect upon the Section 7 rights of the employees

of the company. They were not shown to have been

initiated as a part of any antiunion motivation by

the company. It therefore follows, as a matter of law,

that the company violated neither the National Labor

Relations Act nor the decree of this Court in grant-

ing these wage increases. Louisburg Sportswear Co.

v. NLRB, 462 F.2d 380 (4th Cir. 1972); Southern

Foundation v. NLRB, 446 F.2d 1063 (6th Cir. 1969) ;

Hagopian & Sons, Inc. v. NLRB, 395 F.2d 947 (6th

Cir. 1968) ; and Louis Allis Company, 193 NLRB No.

8 (1971).

9. The wage increases at Aynor, as in the case of

Loris, were small and not out of character with the

relatively poor financial condition of these plants and

Marlene Industries at the time.

VII. RECOMMENDATIONS.

A. The special master recommends that Marlene

Industries Corporation, Loris Manufacturing Com-

pany, Inc. and Aynor Manufacturing Company, Inc.,

76a

be required to continue to comply fully with and obey

this Court’s judgment and decree of January 29,

1969.

B. That Delphine Reeves and Postell Goff be of-

fered immediate and full reinstatement to their for-

mer positions at Loris without prejudice to their sen-

jority at March 21, 1970. (The company, however,

should be recognized as having a reasonable right to

discipline these employees for their early departure

from the plant on that date).

C. Loris and Aynor should be enjoined from fur-

nishing free copies to employees of antiunion news-

paper articles or issues at these plants and should

be required to disavow in the local newspaper and

on its bulletin boards the implications and statements

made in the newspaper articles filed as exhibits at

the hearings before the special master in this cause.

D. Upon request by the LL.G.W. Union, Loris

and Aynor should immediately grant said Union and

its representatives reasonable access, for a six month

period, to plant bulletin boards.

E. Loris and Aynor shoula be required at their

expense to publish in form to be approved by the

National Labor Relations Board in newspapers of

general circulation in the area of these two plants,

the essential terms and provisions of the Court’s

Order, once a week for four consecutive weeks, at a

reasonable time designated by the Board.

F. All other employees of the Loris and Aynor

plants who engaged in concerted activity beginning

in June 1970, assertedly protesting unfair labor prac-

77a

tices or conditions, and who have made unconditional

application for reinstatement or reemployment shall

be offered substantially equivalent positions with

restoration of seniority rights to the date of their

termination in June 1970, (but not during the period

of strike prior to unconditional application for rein-

statement). Such reinstatement or reemployment

shall, however, be made only as and when such posi-

tions become available, taking into account the sen-

iority positions and status of such re-applying em-

ployees.

G. Loris and Aynor should be required to file a

sworn statement with the Court within 20 days

after any adjudication of contempt, and again after

the posting and/or publishing period specified above,

showing what specific steps have been taken to com-

ply with the Court’s directions and orders.

H. Loris should be required to pay all costs and

out-of-pocket expenditures incurred by the National

Labor Relations Board in connection with investi-

gation and hearing of these proceedings relating to

Loris only.

I. That the Court take such other and further ac-

tion and grant such other and further relief as may

be deemed just, reasonable and proper in respect of

the findings, conclusions and recommendations here-

with submitted as to Loris and Aynor.

a |

78a

VIII. FRISco

A. Reinstatement of striking employees.

1. The strike of employees which began at the

company’s Decaturville, Tennessee plant on June 23,

1970, and subsequently spread to its other Tennessee

and South Carolina plants, also precipitated a strike

on or about July 15, 1970, of the company’s em-

ployees at its Frisco City, Alabama, plant, in sup-

port of the striking employees at the Decaturville

plant. On approximately July 31, 1970, Frisco City

employee Randy Montgomery left the plant and joined

the strike then in progress. Employee Sandra Match-

ett joined the strike on August 7, 1970. Subsequently,

plant manager Virgil Boen wrote letters to all strik-

ing employees, including Montgomery and Matchett,

directing them to return to work by a specified date,

or be replaced. Neither Montgomery nor Matchett

returned by the deadline specified in the letter. There-

after, Matchett, on November 28, 1970, and Mont-

gomery in early July 1971, quit the strike and re-

turned to the plant unconditionally offering to re

turn to work. Matchett met with plant manager

Boen who advised her that he had no openings for

her and that, citing the letter which he had sent to

her, stated that he had given her a chance to re-

turn but that she had refused. Montgomery, who

had spent approximately one year on the picket line

was told by Boen, upon returning to the plant, that

there were no openings, The company refused im-

mediate reinstatement to both Matchett and Mont-

79a

gomery. Neither employee was subsequently rein-

stated. Boen testified that no other striking em-

nloyees had offered to return to work. Neither

Matchett nor Montgomery returned to seek employ-

ment but the one time.

2. The picketing began at the Frisco plant on

July 14, 1970, when a group of individuals who had

not been previously employed at the Frisco plant ap-

peared outside with picket placards and began picket-

ing. The picketing by these nonemployees of Frisco

continued from July 14 until July 31, 1970, when

Wayne Jay, Steve Smith and Phillip Baggett, Frisco

employees, came by Boen’s office and stated that

they were walking out because “they wanted more

money”. At the time the picketing began on July

14, 1970, the Frisco plant employed approximately

400 employees. After picketing began on July 14,

1970, a total of 42 employees of the Frisco plant

walked out and joined the picket line.

3. Immediately prior to his joining the strike at

approximately 12 noon on July 31, 1970, employee

Randy Montgomery testified that his supervisor,

Ward Bixler, told him that those employees who

“walked out” would never work in there no more.”

If Bixler made this statement, it did not coerce or

effectively influence Montgomery’s decision to com-

mence picketing and later to request reinstatement.

Bixler denied the statement.

4. Montgomery walked out of the plant and joined

the pickets because a plant guard would not grant

80a

permission to Montgomery to cross the picket line to

ask his sister for the keys for a car.

B. Other Company Activities.

1. At the time of the commencement of the picket-

ing on July 14, 1970, the plant allowed employees

three break periods during each work day in ad-

dition to the free time before and after work and

during the lunch hour. Additionally, employees were

permitted to go to the restrooms as often as necessary

but the plant maintained a rule providing that no

section should have more than two employees from

one section in the restroom at one time during work-

ing hours. Employees increased the frequency of

their restroom visits with the commencement of the

picketing and plant manager, Virgil Boen, instructed

supervisors to enforce the plant rule and prohibit

employees from congregating and loitering in rest-

rooms where it was suspected they were discussing

union activity and membership.

2. During themonth of August 1970, Jeanie

Brooks, supervisor of the “zipper” section of the sew-

ing room, told several employees under her control

that if they left their jobs and joined the strike that:

“vou’ll never get a job here”. Brooks, however, did

not solicit employee Mary Peeples to submit a writ-

ten account of statements made to her by pickets as

Peeples came into the plant, as Peeples volunteered

this information.

9. Other employees asserted that supervisors Bix-

ler and Cross made statements in the summer of 1970,

8la

to the effect that if they joined the Union picket line,

they would no longer work for Frisco. Though there

may have been a slowing of production by reason

of the picketing, each supervisor denied making such

statement or threats and the employees involved

seemed little influenced by their supervisors with re-

gard to their decisions either to join or to refrain

from joining the picketing at the Frisco plant.

4. During the month of August 1970, employee

Madie Wormach, had occasion to be in plant man-

ager Boen’s office discussing the defective operation

of her sewing machine. During the course of the

conversation, Boen asked Wormach if she knew any-

thing about union cards being passed around the

plant. After denying any knowledge of cards being

distributed, Boen asked her if she knew if another

employee had any cards. Wormach denied any

knowledge thereof.

During her conversation with Boen in his office

in August 1970, Boen also asked Wormach if she

would let him know when and where Union meetings

were taking place. Several weeks later, Boen asked

Wormach again if she had any information, but she

denied having attended any such meetings. Wormach

was equivocal about supporting the Union at the

times she was in contact with Boen, and at one point

in her testimony stated she “wasn’t interested in it.”

C. Conclusions

1. This Court has jurisdiction over the subject

matter and the parties in this action as to Frisco.

82a

2. There is insufficient clear and convincing evi-

dence to establish that the picketing at the Frisco

plant was to protest an unfair labor practice. The

first employee who left the plant on or about July

31, 1970, to join the “outside” individuals picketing

the plant who had been there since July 14, 1970,

did so for economic reasons primarily rather than the

subordinate claim or protest of an unfair labor prac-

tice. Montgomery’s purpose in joining the pickets

was to protest the refusal of a plant guard to allow

him to cross the picket line and get a key to his car

in accordance with a company policy, an insufficient

basis to show an unfair labor practice. Montgomery

and Sandra Ann Matchett walked out without mak-

ing any effort to advise management of the nature

of their grievances concerning any alleged unfair

labor practice. Since all “concerted activity” is not

protected by Section 7 of the National Labor Rela-

tions Act, the picketing activities of the Frisco em-

ployees were not so protected in this instance. Thus,

when Montgomery and Matchett joined the pickets

in front of the company’s plant in Frisco City in

July and August 1970, they assumed the status of

economic strikers who are subject to replacement.

NLRB v. MacKay Radio & Telegraph Co., 384 U.S.

333 (19388); NLRB v. Fleetwood Trailer Co., 389 U.S.

375 (1967); NLRB v. International Van Lines, 448

F.2d 905 (9th Cir. 1971). They were directed to

return to work within a reasonable time and did not,

so they thereby rendered themselves subject to re-

placement. Upon their later reapplication, Frisco did

not violate either the National Labor Relations Board

83a

or the Court’s decree when they were not immediately

reinstated when they applied for work. Furthermore,

Matchett abandoned the strike on October 5, 1970,

but waited until November 28, 1970, to seek re-em-

ployment, having failed to obtain a job elsewhere in

the interim, thus legally voluntarily terminated her

employment or right to re-employment at Frisco. The

company committed neither an unfair labor practice

nor violated the Court’s decree when it failed to re-

instate Sandra Ann Matchett and Randy Montgomery

on November 28, 1970 and July 5, 1971, respectively.

3. The policy of the company in prohibiting loiter-

ing and clustering of employees in the restrooms

after the commencement of the picketing during the

1970 summer was not calculated unduly to interfere

with the employees in the exercise of their rights

conferred by Section 7 of the Act. The frequency

of visits to the restrooms by many of the female em-

ployees increased after the picketing began and since

they were compensated on a production basis, the

company’s production suffered if congregation and as-

semblies of employees were permitted to take place

in the plant restrooms, even if discussions were about

Union activities. Enforcement of the policy did not

unreasonably discriminate against the employees who

were Union adherents. The employees were not pre-

cluded from discussing union matters before or after

work or during the lunch period on company premises,

or even during appropriate break times. The company

supervisors did check the restrooms when more than

two female employees left a section at a time during

—————————

84a

the working day, and remained an unreasonable

length of time away from their jobs. The supervisors

may have engaged in conduct which created an im-

pression of surveillance by following employees un-

der these circumstances to restrooms, but did not

hover over, shadow, or follow employees “engaged in

the performance of routine tasks.” “The Act, of

course, does not prevent an employer from making

and enforcing reasonable rules concerning the con-

duct of employees on company time. Working time

is for work. It is therefore within the province of

an employer to promulgate and enforce a rule pro-

hibiting union solicitation during working hours.”

Republic Aviation Corporation v. National Labor ke-

lations Board, 324 U.S. 798, 803 (1945); Peyton

Packing Company, 49 NLRB 828 (1943) ; Stoddard-

Quirk Manufacturing Co., 188 NLRB 615 (1962).

Enforcement of this policy was grounded upon legiti-

mate business justifications and would be expected to

result in an increase in the productivity of the em-

ployees. Accordingly, it did not constitute an unfair

labor practice and did not violate the Court’s decree.

4. At least one Frisco supervisor and plant man-

ager, Boen, did interrogate employees about Union

activity and initiated possible plant closure or job

loss if workers joined the strike at the Frisco plant.

This activity, though perhaps in over-all context

minimal, did have the tendency (though not necessar-

ily the effect) of restraining, influencing, or soliciting

employees away from participation in Union affairs

or activities in and about the plant.

70 ete ——

85a

IX. RECOMMENDATIONS

A. The special master recommends that Marlene

Industries Corporation and Frisco Sportswear Co.,

Inc., be required to continue to comply fully with and

obey this Court’s judgment and decree of January

29, 1969.

B. Frisco supervisors should be required to be

instructed and cautioned in writing that they may

not question or interrogate or interfere with any

present or prospective employee with respect to his

or her union interest, membership or activity.

C. Frisco should be required to post a notice on

all its bulletin boards for a period of sixty (60)

days with a copy to the local President and Secretary

of the local I.L.G.W. Union, signed by its plant man-

ager, stating the basic provisions and effects of the

Court’s order of purgation, if it is held to be in

civil contempt, and setting forth that it will affirma-

tively henceforth not interrogate, lay off, discharge

or refuse to rehire employees because of lawful con-

certed or Union activities, or otherwise in any other

manner, interfere with, restrain or coerce employees

in the exercise of their protected activities. Further,

such posted notice shall be placed conspiciously and

maintained in a clearly legible condition for said

consecutive sixty (60) day period.

D. Upon request by the I.L.G.W. Union, Frisco

should immediately grant said Union and its rep-

resentatives reasonable access, for a six month period,

to plant bulletin boards.

86a

E. Frisco employees should be permitted to have

reasonable access to said Union organizers during

non-working time only at plant approaches and Frisco

parking lots for a period of six months from the

issuance date of contempt judgment, if any, subject,

however, to reasonable company regulations in the

interests of plant efficiency and discipline.

F. Frisco should be required at its expense to

publish in form to be approved by the National Labor

Relations Board in newspapers of general circulation

in the Frisco City, Alabama area, the essential terms

and provisions of the Court’s order, once a week for

four consecutive weeks, at a reasonable time desig-

nated by the Board.

G. Frisco

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