Petition for Writ of Certiorari — J. P. Stevens & Co. v. National Labor Relations Board

Supreme Court brief1973

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INDEX

Page No

OPINION AND JUDGMENT OF THE CourT BELOw ..... 1

ee 2

| QUESTIONS PRESENTED ........................ 2

- CONSTITUTIONAL AND STATUTORY PROVISIONS

CD ons 9 0 4:84 w 4b en ane RD 3

- STATEMENT OF THE CASE ........................ 4

_ REASONS FOR GRANTING THE WRIT............... 9

A. The Standard Of Proof ................... 9

B. The Summary Rulings Of The Court Of

eee Ee oe Ae 10

C. The Directives Of The Court Of Appeals... ... 16

D. The Punitive Aspects Of The Court’s Order .. 18

- CONCLUSION ........................0.0220.. 22

_ Appendix:

Opinion Of The Court Below ................. la

Judgment Of The Court Below .............. 55a

CITATIONS

Cases:

Fox vs. Capital Co., 96 F. 2d 684 (3rd Cir., 1938) . 10

Hart Schaffner & Marx vs. Alexander's

Department Stores, Inc., 341 F. 2d 101

(2nd Cir., 1965) ......................... 9

J. P. Stevens & Co., Inc. vs. National Labor

Relations Board, 380 F. 2d 292

8 Sf ee eae eae ners 4

Kansas City Power & Light Co. vs. National

Labor Relations Board, 137 F. 2d 77

SE ce ee he ees 10

Leland vs. United States, 155 F. 2d 438

EM I ceo ces kr ose eke bw eee wee 18

McComb vs. Jacksonville Paper Co., 366 U.S.

187, 69 S. Ct. 497, 93 L. Ed. 599 (1949) ....... 16

McCrone vs. United States, 307 U.S. 61,

59 S. Ct. 685, 83 L. Ed. 1108 (1939) .......... 16

National Labor Relations Board vs. Local

282, IBT, 72 LRRM 2099 .................. 10

National Labor Relations Board vs. Local 282,

IBT, 428 F. 2d 994 (2nd Cir., 1970) .......... 10

National Labor Relations Board vs. Standard

Trouser Co., 162 F. 2d 1012 (4th Cir., 1947) ...10

National Labor Relations Board vs. Tupelo

Garment Co., 122 F. 2d 603 (5th Cir. 1941) ....10

Oriel vs. Russell, 278 U.S. 358, 49 S. Ct. 173,

Tek. We SER Clee... oe eee eee 10

Penfield Co. of California vs. S.E.C., 330 U.S. 585,

67 S. Ct. 918, 91 L. Ed. 1117 (1947) ......... 16

Schaefer vs. United States, 251 U.S. 466,

40 S. Ct. 259, 64 L. Ed. 360 (1920) .......... 18

Schauffler vs. Local 1291, International

Longshoremen’s Association, 292 F. 2d 182

MD Soc er Ca Sara te ens 10

Scott vs. Hunt Oil Co., 398 F. 2d 810

RSD eet et ee een wee" 16

Southern Railway Company vs. Lanham,

403 F. 2d 119 (5th Cir., 1968) .............. 17

Stringfellow vs. Haines, 309 F. 2d 910

NG I Fore eee es 10

Tellivg vs. Bellows-Claude Neon Co.,

77 F. 28 GOt (Gch Cr., 1005) ............... 10

Textile Workers Union of America vs.

National Labor Relations Board,

388 F. 2d 896 (2nd Cir., 1967) .............. 4

United States vs. Howard, 327 F. 2d 765

Ce WI fic a cn ee eee 18

United States vs. Johnson, 327 U.S. 106, 66 S. Ct.

464, 90 L. Ed. 562 (1946)... .............. 18

United States vs. Skinner, 425 F. 2d 552

ee Ga, MIE 5 04 ee eee 18

Statutes:

Oe Bl EO a 2 oka ws oe ewe 2

UR. SUD ooo oc es ee ee 3,19

te oa ce cs 4a ca ee ee 3

Constitutional Provisions:

Fifth Amendment to the Constitution

of tee Unteed States ...... ... «2 sw nn esse 3

IN THE

Supreme Court of the United States

OCTOBER TERM, 1972

No.

J.P. STEVENS & Co., INC.,

AND MASON LEE, EDNA PARRISH,

MARSHALL Cox, TOMMY GARDNER,

PETE RAWLINGS, Max BOWERS,

vs. Petitioners

NATIONAL LABOR RELATIONS BOARD

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioners pray that a writ of certiorari issue to re-

view an opinion and judgment of the United States

Court of Appeals for the Second Circuit, issued on July

19, 1972, and September 13, 1972, respectively, in which

the Petitioners were adjudged in civil contempt for vio-

lating previous decrees concerning compliance with

Sections 8 (a)(1)(3) and (4) of the National Labor

Relations Act, and in which orders as hereinafter set

forth were imposed upon the Petitioners.

OPINION AND JUDGMENT OF THE COURT BELOW

The opinion of the United States Court of Appeals for

the Second Circuit has not yet been printed in the offi-

cial reports, but may be found in 80 LRRM, at page

PIE ESTP SENATE N

SEAR ie Rete ee eae BeR ay

RL RB EEN SRN ET MERRIE TIME MA ONY EY AIT TREE ATEN ARE RR EIN 0 ae |

; LAD TAA LITO LILLE LEAL AY OLOD LEA EL INS BRST ALLE A te DE BH PROBE eh ED

3126. It is also printed, along with the juagment or

“adjudication” of the Court, in the Appendix to this

Petition.

JURISDICTION

The judgment of the court of appeals is dated Sep-

tember 13, 1972, and was entered on that date. A time-

ly Petition for Rehearing was denied on October 3,

1972. The jurisdiction of this Court is invoked under

28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Were Petitioners’ rights, under the due process

clause of the Fifth Amendment, violated when the

court of appeals, though having before it only a tran-

script of controverted evidence, resolved virtually all

factual issues against the Petitioners and adjudged the

Petitioners in contempt, by itself making findings, which

were either:

(a) unsupported by any substantial evidence, or

(b) strongly contested by Petitioners’ counter-

vailing evidence, or

of record?

2. Is it consistent with due process for a court to

adjudge an accused in contempt of court, and impose

criminal contempt sanctions, on the basis of fact find-

ings which the court has made solely from a transcript

of testimony, when there is conflict in such testimony

on every point in issue and when the witnesses are avail-

able to appear and testify before the fact finding court?

3. Were Petitioners’ rights to due process further

violated when the court of appeals included punitive

provisions in a civil contempt order, entered under cir-

cumstances in which the due process requisites of a

criminal contempt proceeding had not been observed?

4. Under the due process clause, is a provision for

imprisonment or “body attachment” permissible as a

sanction in a contempt proceeding which is exclusively

civil in nature?

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

UNITED STATES CONSTITUTION, AMENDMENT V.:

“No person shall be . . . deprived of life, liberty, or

property, without due process of law .. .”

UNITED STATES CODE, TITLE 29:

§160(c) “No order . . . shall require the reinstate-

ment of any individual as an employee who has been

suspended or discharged, or the payment to him of

any back pay, if such individual was suspended or

discharged for cause.”

UNITED STATES CODE, TITLE 29:

§158(a)(1) “It shall be an unfair labor practice

for an employer . . . to interfere with, restrain, or

coerce employees in the exercise of the rights guaran-

teed in Section 7.”

AS IE een ORR

PSTHAT Ia Ne Ree ne mies SORA erase ce a |

STATEMENT OF THE CASE

This case came before the United States Court of

Appeals for the Second Circuit upon a Petition by the

National Labor Relations Board, in which the Board

asked that the Petitioners’ be adjudged in civil contempt

for having allegedly violated earlier decrees of the court.

The original decrees, entered by the court of appeals

on September 1, 1967* and March 26, 1968" sustained

earlier findings of the Board that Sections 8(a)(1)(3)

and (4) of the National Labor Relations Act had been

violated at some of the plants of the J. P. Stevens Com-

pany. The court enforced with certain modifications the

Board's directives requiring the Company to take certain

affirmative action and to refrain from violating the

sections of the Act referred to above.‘

In the present proceeding, the Board made no claim

that Stevens had failed to perform the affirmative ac-

tions required of it. The sole contention was that after

the entry of the court’s decrees, violations of the statute

had occurred in several of the Company's plants, and

that therein the Petitioners were in civil contempt.

‘In the caption of the proceeding in the court below, six

persons, who were supervisory employees of J. P. Stevens &

Co., Inc., were named, along with the Company, as Respond-

ents.

2). P. Stevens & Co., Inc. vs. NLRB, 380 F. 2d 292 (1967).

"Textile Workers Union of America vs. NLRB, 388 F. 2d

896 ( 1967).

“See the court's description of the underlying decrees ( Appdx.

The court of appeals appointed Honorable Edwin M.

Stanley, Chief Judge of the United States District Court

for the Middle District of North Carolina, as Special

Master to hear the matter and report his “findings of

fact,” “conclusions of law” and “recommendations” to

the court. During March of 1971, Judge Stanley carried

out a full trial of the case, and developed a record more

than 2500 pages in length. However, Judge Stanley

died suddenly before making any findings or rendering

any report to the court.

In the course of the proceedings before Judge Stan-

ley, Petitioners met each and every accusation with con-

troverting evidence. In most instances, such evidence

was not only testimonial but documentary as well. On

the other hand, witnesses for the Board, as the written

transcript shows, often contradicted themselves, con-

tradicted each other, and contradicted the documents

in evidence—in some cases documents of which they

were themselves the authors. The full details of the evi-

dence would require lengthy treatment, which has, of

course, not been undertaken in this Petition. Examples

of the state of the evidence are, however, hereinafter

set forth under the next heading of this Petition.

Throughout the proceeding the Board proposed and

advocated to the court of appeals certain specific and

itemized remedies. In every motion and petition filed

by the Board, it prayed that, upon the Petitioners’ being

adjudged in “civil contempt”, the court should “enter

an order requiring” the Petitioners “to purge them-

selves” by: “(a) Forthwith and in good faith offering”

A aR hy oa

reinstatement with back pay to named individuals;

“(b) Placing” in the file of a named employee a “com-

mendation and excellent job rating”; “(c) Complying

in full with all the terms and conditions” of the Court's

earlier decrees; “(d) Posting” prescribed notices in all

the Company's “plants in North and South Carolina”,

“(e) Filing a sworn statement” showing “what steps”

have thus “been taken by the Company”; and “(f) Pay-

ing to the Board all costs and expenses” incurred “by

the Board” throughout the proceeding.

In its post-trial brief and in its “Proposed Findings of

Fact and Conclusions of Law”, the Board carefully re-

peated its prayer and requests in exactly the same

terms. Again, in a reply brief, the Board did the same.

Still further, at the time of oral argument before the

court of appeals, the court specifically inquired of the

Board as to what the Board wanted the court to require

of the Petitioners, and the Board in substance answered

that it desired the court to require of the Petitioners the

actions which were specified in the Board's motions

and petitions. ,

On July 13, 1972, the court of appeals handed down

its opinion, to which were appended the court's findings

of fact and conclusions of law. The court recognized

“the unusual posture of this case”, (Appdx. 4a) in that

it was acting as fact finder upon controverted evidence,

without having seen or heard any witness. Neverthe-

less, the court, upon the bare transcript, essentially

disregarded the evidence that had been submitted by

the Petitioners, and resolving substantially all conflicts

against the Petitioners, adjudged them guilty upon

virtually every accusation.

At the conclusion of its opinion the court directed that

“an order be entered adjudging” the Petitioners “in civil

contempt of this court and requiring them to purge

themselves as set forth in the Board's prayer for relief”

(Appdx. 5a). Likewise, in the Appendix to its opinion,

the court defined the relief to be granted by stating

that the Petitioners should be “required to purge them-

selves as prayed in the Board’s Second Amended Mo-

tion” (Appdx. 54a). Both parties were given leave to

submit proposed orders.

However, the proposed order which the Board there-

upon submitted, did not by any means confine itself

to such directives as had been declared, at all stages of

the proceeding, to be the terms of purging any con-

tempt that might be found. Instead, the Board now

proposed, for the first time, additional requirements of

far more extreme nature. These expanded proposals

involved notification of the contempt adjudication in

an “employee” notice to be mailed to thousands of per-

sons formerly employed but no longer working for the

Stevens Company, and similar notification to employees

in plants, in North and South Carolina, not involved in

the proceeding, and never involved in any unfair labor

practice charges or in any Union organizing effort.

Further, the Board’s proposed order provided that

agents of the Board should be permitted to enter desig-

nated plants of the Company, and that at the Board's

request the Company should convene the employees

a i ht on aia! Se, a

in those plants, during their working time, and provide

facilities for agents of the Board to read a notice to the

assembled employees.’

The Board also added, in its proposed order, various

provisions which would require the Company to assist

and promote future organizing efforts among its em-

ployees. These included the Company's making avail-

able to the Union all bulletin boards in all its plants in

North and South Carolina for the posting of Union lit-

erature, whether or not such plants had ever been in-

volved in any Union organizing efforts or unfair labor

practice charges—and the furnishing of lists of the

names and home addresses of employees to the Union

at designated plants—and the furnishing of facilities

to the Union at designated plants in order that Union

representatives might make organizing speeches to the

employees in behalf of the Union on Company time.’

The final provisions of the Board’s proposed order re-

late to fines and imprisonment or “body attachment” in

the event of future non-compliance.

The Petitioners, reserving all rights with respect to

review of the proceeding, submitted a counter-proposal

as to terms of an order confined to such purging direc-

tives as had been specified at all phases of the case up

to that point.

‘See paragraphs 2, 6, 7 and 8 of the Board’s proposals as

identically adopted in the court’s order (Appdx. 56a, 57a, 58a).

*See paragraphs 9, 10, 11 and 12 of the Board’s proposals as

identically adopted in the court’s order (Appdx. 58a, 59a).

On September 13, 1972, the court of appeals entered

a judgment or “adjudication” which adopted almost ver-

batim the terms of the Board’s escalated proposals.’

The Petitioners thereafter made timely application

to the court of appeals for a rehearing. Such application

was denied on October 3, 1972.

REASONS FOR GRANTING THE WRIT

A. THE STANDARD OF PROOF

The decisions in all courts are unanimous to the

effect, even in a civil proceeding, that a party is not to

be adjudged in contempt of a court order except upon

“lear and convincing proof”, and that a “mere pre-

ponderance of evidence” will not suffice—that “a de-

gree of certainty is required which leaves no fair ground

of doubt”—that “where there is ground to doubt the

wrongfulness of the conduct of the defendant, he should

not be adjudged in contempt”—and that “whatever the

precise language used, it must be taken as settled” that

the complainant “in a civil contempt proceeding must

overcome a heavy burden of proof”.

“A civil contempt order will not issue unless there

is ‘clear and convincing’ proof of violation of a court

decree; a bare preponderance of the evidence will not

suffice”.

Hart Schaffner & Marx vs.

Alexander's Department Stores

Inc., 341 F. 2d 101, 102 (2nd

Cir., 1965).

“Where the evidence is susceptible of two infer-

ences, one favorable and the other adverse to the

allegedly offending union, the court has no right to

adjudge guilt summarily”.

National Labor Relations Board

vs. Local 282, IBT, 72 LRRM

2099, 2112 (Report of Special

Master to 2nd Cir. Court of

Appeals—in case of same name,

428 F. 2d 994'

B. THe Summary Ru.incs OF Tue Court OF APPEALS

It is respectfully submitted that the fundamental

standard of proof here applicable has not been followed

in this case. Any sampling of the evidence shows this to

be true. The court below disregarded the basic precept

that in order to establish contempt of court the accuser’s

evidence must overwhelm that of the accused. Moreover,

the court failed to perceive that in this case, the evidence

for the accused Petitioners in fact overwhelmed that of

the accuser.

‘Accord: Stringfellow vs. Haines, 309 F. 2d 910, 912 (2nd

Ciz., 1962); National Labor Relations Board vs. Local 282,

IBT, 428 F. 2d 994, 1001-1002 (2nd Cir., 1970); National

Labor Relations Board vs. Standard Trouser Co., 162 F. 2d

1012 (4th Cir., 1947); Kansas City Power & Light Co. vs.

National Labor Relations Board, 137 F. 2d 77 (8th Cir., 1943);

Oriel vs. Russell, 278 U.S. 358 (1929); Telling vs. Bellows-

Claude Neon Co., 77 F. 2d 584 (6th Cir., 1935); Fox vs. Capi-

tal Co., 96 F. 2d 684 (3rd Cir., 1938); National Labor Rela-

tions Board vs. Tupelo Garment Co., 122 F. 2d 603 (5th Cir.,

1941); Schauffler vs. Local 1291, International Longshore-

men’s Association, 292 F. 2d 182, 189-190 (3rd Cir., 1961).

Most extraordinary of all was the court’s obvious view

that the witnesses for the Board deserved to be credited

as against the witnesses for the Petitioners—although

the court made this crucial choice between them without

seeing or hearing any of them, and without regard to the

high standard of proof which should have barred such

a choice. The Petitioners’ defenses—detailed, thorough

and directly to the point on every accusation—were dis-

carded in the court’s findings of fact as surely as if the

Petitioners had presented no defense at all. Brief exam-

ples are here presented to illustrate this.

Gladys Whitener worked at the Company’s Longview

Plant in Hickory, North Carolina. Her job was that of

inspecting and making written reports as to the quality

of other employees’ production. She was a supporter

and advocate of the Union and had made this known to

all, including her supervisors.

Four persons—one of them no longer connected in any

way with the Company—testified specifically and in de-

tail that Whitener repeatedly made threats to them that

she was going to mark their quality reports “down” if

they did not join the Union, and that upon her persisting

in this, they complained to their supervisor (Tr. 873,

874-875, 876, 887, 899-900, 905, 909, 918, 920).

One of these employees testified that on one occasion

Whitener carried out such threats and falsely altered a

quality report which had already been made out—mark-

ing it so as to double the number of defects shown on the

report for that employee (Tr. 874-876). This report was

Cet mera" ea

placed in evidence and Whitener admitted that it was

in her handwriting (Tr. 624, Respondents’ Ex. 17).

Upon this evidence, Whitener was discharged from

the Company’s employment. If such evidence was true—

or if the Company reasonably believed it to be true—then

it was certainly not unlawful for the Company to dis-

charge Whitener.

There is not a scintilla of evidence that any of this tes-

timony against Whitener was in any way contrived.

There is nothing whatever in the record casting doubt

upon its credibility.

Yet, upon Whitener’s general denial, the court below,

making no reference to any of the evidence against her,

declares simply and summarily that “at no time did

Gladys Whitener ever change the quality report on any

employee’s work or threaten to change the quality re-

port, depending on whether or not the employee sup-

ported the Union” (Appdx. 25a).

It is indeed difficult to understand how the court be-

low, having seen and observed neither Whitener nor the

witnesses against her, can flatly pronounce that the four

witnesses are all falsifiers and that, beyond any question,

Whitener did not say or do what they say she said and did.

In another case the court found that the Company

“threatened” Doris Bowers “with discharge” and later

did discharge her “because of Union adherence” on her

part (Appdx. 34a, 35a).

There are indeed in the record four written warnings,

specifically stating that unless the quality of Bowers’

work improved, she would be discharged (Respondents’

Exs. 26-29). These were, however, all prior to the date

which Bowers specifically named as being the earliest

time that she had “anything to do with any Union” (Tr.

1244-1245). Thereafter, Bowers received still a further

written warning, prior to the date of her discharge (Re-

spondents’ Exs. 30, 31).

The court accepted Bowers’ testimony that on the last

day she worked, she received “all” of the “heavy” and

“difficult” towels to inspect, whereas a fellow inspector,

Peggy Rhome, “got all the light towels” (Tr. 1229, 1253,

1256, 1257, Appdx. 31a). Yet a tabulation of the produc-

tion records, brought forward and placed in evidence,

showed that all of the inspectors shared in the heavy and

difficult towels that day, and that Peggy Rhome, instead

of receiving “all the light towels” did not in fact receive

any of them (Tr. 1477-1479, 1487, 1488, Respondents’

Ex. 35). Although this record was not in any way

attacked or impeached, the court made a finding contrary

to it.

Bowers testified that after she attended a Union meet-

ing, she began to receive “more difficult work to inspect”,

and that as a result her “production” and earnings went

down. The court adopted this as the truth (Appdx. 32a).

Yet a tabulation of Bowers’ production earnings is in the

record—also unattacked and unimpeached—and it

shows that Bowers’ testimony did not present the truth

(Respondents’ Ex. 36).

There is no witness and no document that confirms or

corroborates the testimony of Bowers. Five witnesses,

one of them no longer connected with the Company in

any way, plus eight documents, confirm and corroborate

the Petitioners’ position in Bowers’ case. In addition, five

other witnesses were tendered by the Petitioners, as

persons whose testimony would be cumulative on “var-

ious aspects” of the case, for such questioning as the

Board “might wish to direct to them ”(Tr. 1518).

Yet the court’s finding necessarily means, under the

standard of proof here applicable, that all of this is over-

whelmed clearly and beyond question, by the unsup-

ported assertions of an unseen Doris Bowers.

In the case of Louis Elwood Futrell, there is no evi-

dence whatever that he was a supporter of the Union or

had any connection with the Union in any way. Yet the

court found that since the Board, in a pre-trial listing of

its contemplated witnesses, had named Futrell, along

with many other Company employees, such naming of

Futrell as a possible witness was surely the reason that

the Company, more than ten months later, discharged

him (Appdx. 52a, 53a).

During the last year of his employment and prior

to the last night he worked, Futrell received four repri-

mands regarding the quality of his work as a rechecker,

or final checker, of cloth (Respondents’ Exs. 60-63).

One of these related to approximately one hundred yards

of defective cloth which Futrell had passed as first

quality, another to “fourteen pieces”, another to “eleven

pieces”, and still another to one “piece” which the cus-

tomer had returned as having five major defects in a

single length of the cloth (Tr. 2370-2384).

Futrell admitted that other recheckers were receiving

close supervision and written reprimands on the quality

of their checking, as well as himself (Tr. 2178, 2180,

9181-2184). Nor did he deny the truth of the matters as

set out in the reprimands which he received (Tr. 2185-

9186, 2188).

On the last night he worked, Futrell permitted two sep-

arate beams of cloth to be “hooked up” and also inspected

on the wrong machine—thus committing two completely

careless errors on the first beam and then repeating both

of these negligent errors on the next beam (Tr. 2385,

9413). When caught by the supervisor, these beams “had

run completely through, both of them”—“one after the

other’—and “both of them” on “the wrong machine”

(Tr. 2388).

In testifying, Futrell admitted that this was all true.

The Board presented no witness in Futrell’s case other

than Futrell himself.

This would seem to be a clear example not of the ac-

cuser overwhelming the accused, but rather of the

reverse. Yet the court assumed, and thereupon simply

ruled and declared, that Futrell was discharged not for

any lawful or proper cause, but solely because he was

among the witnesses listed by the Board almost a year

earlier in a pre-trial legal paper.

Limitations of space prevent the Petitioners from pre-

senting further such examples, but it is respectfully

submitted that any like sampling of the record will

reveal that the same situation pervades this entire

proceeding.

SE eee ee ee Sta Lae) cae ett ale oe

SS eng

The Petitioners acknowledge that this court does not

ordinarily concern itself with dispute regarding a lower

court's determination of what has been proved and what

has not been proved. What is extraordinary here, how-

ever, is the fact that the court of appeals has itself made

the findings of fact in this case—without seeing or hear-

ing any witnesses—and despite evidence such as is out-

lined in the foregoing examples—and in the face of a

standard of proof which is established by all authorities

in the opposite direction. All this is further intensified

by the circumstances surrounding the entry of the

court's order in this case and the terms of that order.

C. THE Directives Or THE Court OF APPEALS

At every step and stage, this case has been referred to,

by the Board and by the Court itself, as “civil” in nature.

It is fundamental that the judgment or order in a civil

contempt case must be remedial only.

“Civil contempt is ‘wholly remedial’ serves only the

purpose of a party litigant, and is intended to coerce

compliance with an order of the court ... McComb vs.

Jacksonville Paper Co., 1949, 336 U.S. 187, 191, 69

S. Ct. 497, 499, 93 L.Ed. 599; Penfield Co. of Califor-

nia vs. S.E.C., 1947, 330 U.S. 585, 590, 67 S. Ct. 918,

921,91 L. Ed. 1117; McCrone vs. United States, supra;

Scott vs. Hunt Oil Co., 5th Cir. 1968, 398 F. 2d 810

(July 24, 1968); 6 Moore’s Federal Practice 954.17.

Criminal contempt, on the other hand, is punitive,

rather than remedial, serves to vindicate the authority

of the court, and cannot be ended by any act of the

contemnor”.

Southern Railway Company vs.

Lanham, 403 F. 2d 119, 124-125

(5th Cir., 1968)

Provisions imposing punishment upon a contemnor

are criminal sanctions, and are to be upheld only if the

due process requirements necessary for conviction of

criminal contempt have been observed at all stages of

a case. Not only have the Board and the court of appeals,

carefully denominated this case as civil, throughout

its entire course. When the court of appeals determined

to resolve for itself the issues of fact in this case—upon

a mere transcript of controverted testimony—it further

and irrevocably established the case as civil in nature.

For the fundamentals of criminal due process require

that findings of fact which underlie a criminal convic-

tion must be made by one in a position to see and weigh

all the meaningful factors affecting the credibility of the

conflicting witnesses.

“If it be said this comment is but the expression of

commonplaces, we reply that commonplaces are

sometimes necessary to be brought forward lest

earnestness or interest disregard them and urge too

far the supervising power of the court, which, we re-

peat, is subordinate to that of the jury on questions of

met...

Schaefer vs. United States, 251 U.S. 466,

476 (1920).

, Smt aes tui jt SETHE RIN A MNT ee CRNA aa A tn We a! aS Sire

tReet ne ea Oe

Aer bien zaete

ee erat or

See also United States vs. Johnson, 327 U.S. 106, 111

(1946); United States vs. Howard, 327 F. 2d 765, 767

(7th Cir., 1964); United States vs. Skinner, 425 F. 24

552 (D. C. Cir., 1970).

“Not only is our judicial system based upon the

function of the jury as the trier of facts, but the mem-

bers of the jury have a special advantage in that they

hear and see the witnesses, whereas an appellate court

must draw its conclusions solely from the cold record”.

Leland vs. United States, 155 F.2d

438, 439 (4th Cir., 1946)

Most certainly—upon the decision of the court of

appeals that it would itself, and without seeing or hear-

ing witnesses, make the findings of fact in this case, no

matter how controverted the evidence might be—the

court should have taken precaution that no sanction of

a criminal nature, that is, identifiable by punitive intent,

would thereafter be imposed upon the Petitioners.

D. Tue Punrtive Aspects Or THe Court’s Orper

As has been hereinabove noted, at the last minute of

the eleventh hour in this case, the Board tendered a

wide-ranging assortment of new and extreme provisions.

At that point there were no newly developed circum-

stances in the case, excepting only that the court had

issued an opinion harshly critical of the Petitioners. In

coming forward with its new proposals, the Board ob-

viously sought to capitalize upon the viewpoint of the

court as expressed in its opinion. Likewise, in accepting

the proposals so opportunistically proposed by the

Board at that point, the court clearly disclosed its will-

ingness to punish the Petitioners.

The punitive nature of the court's order is nowhere

more apparent than in the terms set forth in paragraphs

9, 10, 11 and 12 of that order, which require the Petition-

ers to assist future Union organizing activities in the

Company’s plants".

The 1967 and 1968 decrees of the court of appeals,

which underlie this case, ordered the Petitioners to

cease and desist from actions which were held to inter-

fere with or restrain or coerce employees “in the exercise

of their right to self-organization” (Appdx. 7a, 8a). It

is to be noted that the decrees were designed to prevent

unlawful interferences with the rights of employees, and

that they were not intended to promote Union activities

or the interests of any Union. Yet paragraphs 9, 10, 11

and 12 of the court's order confer direct benefits upon

the Textile Workers Union of America, AFL-CIO, which

are not only in conflict with the provisions of 29 U.S.C.

§158 (a)(1), but which are neither necessary nor appro-

priate to the purpose of assuring that the Petitioners

shall cease and desist from interfering with the rights of

employees.

As has been emphasized, in a civil contempt case

orders are to be entered only for the purpose of pro-

‘Despite the provisions of the National Labor Relations Act

that “it shall be an unfair labor practice for an employer . . .

to interfere with, restrain, or coerce employees in the exercise

of the rights guaranteed in Section 7” 29 U.S.C. §158 (a) (1).

ducing compliance with the terms of the original and

underlying decrees. In the underlying decrees in this

case, there were no such provisions as, for example,

requirements for the gathering of employees in the

plants, on Company time, in order that Union repre.

sentatives might come into the plants and make

speeches to the employees, nor any requirements that

the Company must furnish to the Union the names

and home addresses of its employees. Therefore, the

Court's placing of such requirements in the order now

under consideration was affirmative punitive action,

not action to assure that the Petitioners would cease

and desist from interfering with the rights of employees.

The final paragraph of the court's order contains

other provisions of obvious punitive nature. This para-

graph relates to the possibility of the Petitioners being

fined or jailed in the event of future non-compliance.

There is little in modern case law to define or describe

the legal characteristics of the sanction known as “body

attachment.” Although precedent can be found in some

of the more dusty corridors of English jurisprudence for

resort to indeterminate jailing for civil wrongs, no

reasonable man could deny that at the core of any jail-

ing, for whatever purpose, there lies essenticily a puni-

tive intent. The unfortunates who languished in debtors

prisons would have found little comfort in knowing

that inability to pay debts was not technically listed as

a crime.

“Body attachment” is certainly not a “remedy” to be

utilized in a situation in which none of the character-

istics of a criminal proceeding have been present. Most

certainly it is not an appropriate “remedy” in a proceed-

ing in which total conflict as to facts is the very essence

of the case—and in which the witnesses testifying upon

the controverted facts have not been seen or heard by

the fact finder.

The Petitioners respectfully submit that any fair

analysis of the rulings and directives of the court of

appeals in this case leads inevitably to these conclu-

sions:

(1) That the court of appeals made its findings

on the basis that the evidence for the Petitioners was

essentially to be disregarded—so much so that the

court, though choosing to act as fact finder, deemed

that it need not see or hear any witnesses, no matter

how completely the facts were controverted—and

thereby the petitioners were denied due process of law;

(2) That by reason of this viewpoint manifested

by the court, the Board opportunistically proposed, r

after the rendering of the court's opinion, orders

which had no proper place in the case;

(3) That the court of appeals overlooked the neces-

sity of refraining from punitive sanctions in the cir-

cumstances of this case and imposed upon the Peti-

tioners directives which violate their rights to due

process of law.

CONCLUSION

For these reasons a writ of certiorari should issue to

review the opinion and order of the court of appeals.

Respectfully submitted,

CLARK M. CLIFFORD

WHITEFORD S. BLAKENEY

Attorneys for the Petitioners

fei) Oe wae cere)

Gas

ANY

APPENDIX

OPINION OF THE COURT BELOW

United States Court of Appeals

FoR THE SECOND CIRCUIT

Nos. 654, 655, 656, 657—September Term, 1971.

(Argued April 19, 1972 Decided July 13, 1972.) _

Docket Nos. 30914, 30391, 31164, 31245

NATIONAL LABOR RELATIONS BOARD,

—against— Petitioner,

J. P. STEVENS & Co., INC., AND MASON LEE, EDNA

PARRISH, MARSHALL Cox, ToMMY GARDNER, PETE

RAWLINGS, Max Bow_Ers, Respondents.

Before: FRIENDLY, Chief Judge,

WATERMAN and FEINBERG, Circuit Judges.

Motion to adjudge respondents in civil contempt for

violating this court's decrees ordering respondents to

comply with sections 8(a)(1), (3) and (4) of the

National Labor Relations Act, 29 U.S.C. §§ 158(a)(1),

(3) and (4).

Motion granted in part.

JEROME N. WEINSTEIN, Attorney, National Labor

Relations Board (Peter G. Nash, General Coun-

sel; Dominick L. Manoli, Associate General

Counsel; Marcel Mallet-Prevost, Assistant Gen-

eral Counsel; Paul Elkind, Chief, Contempt

Litigation, on the brief), for Petitioner.

WHITEFORD S. BLAKENEY, Charlotte, North Caro-

lina (Blakeney, Alexander & Machen, on the

brief), for Respondents.

LSE LTR IRL EARN LINE, NRL PIES IO PRIESTESS 2 RR rl

PER CURIAM:

The National Labor Relations Board has moved in

this court for an order adjudging respondents J. P.

Stevens & Co., Inc., Mason Lee, Edna Parrish, Marshall

Cox, Tommy Gardner, Pete Rawlings and Max Bowers’

in civil contempt for failing to comply with this court's

decrees entered pursuant to our decision in J. P. Stevens

& Co. v. N.L.R.B., 380 F.2d 292 (2d Cir. ), cert. denied,

389 U.S. 1005 (1967), and Textile Workers Union of

America v. NLRB, 388 F.2d 896 (2d Cir. 1967), cert.

denied, 393 U.S. 836 (1968). In those decisions we up-

held the Board’s determination that the Company had

engaged in “massive violations” of sections 8(a)(1),

(3) and (4) of the National Labor Relations Act, 29

U.S.C. §§ 158(a)(1), (3) and (4), and we enforced

with minor modifications the Board’s orders requiring

Stevens to comply with the Act. We are now faced with

the charge that in many instances respondents have

ignored or refused to comply with our earlier orders.

To help us adjudicate these charges we originally

appointed the late Edwin M. Stanley, Chief Judge of the

United States District Court for the Middle District of

North Carolina, as Special Master to hear testimony

and take evidence and to make determinations of fact

and law on the issues raised. During March, 1971, J udge

Stanley held extensive hearings at which numerous wit-

nesses testified, resulting in nearly 2,500 pages of tran-

script. Before the parties had completed the filing of

The individual respondents are all supervisory personnel.

—— CG ae 5 NES WA CRE RR Sg Toi EN Se ORE EES ee AP

briefs Judge Stanley died suddenly on December 23,

1971. We take this occasion to mourn the loss of a dis-

tinguished member of the federal bench.

With the death of Judge Stanley and in view of the

long period of time that had elapsed since our prior

orders, we decided that, rather than referring the case

to a new master, the better course was for this court to

resolve the issues on the present record after hearing

oral argument from the parties. In reaching our de-

cision, we have proceeded with caution because of the

seriousness of the charges involved. We have carefully

studied the Board’s proposed findings and the briefs of

the parties, and we have heard oral argument from

them. After making an independent examination of the

entire record, we have adopted only those findings sug-

gested by the Board where we found that the Board

had produced clear and convincing evidence in support

of its allegations of contemptuous conduct. Conversely,

we have rejected many proposed findings when we

found that standard of proof had not been met or when

we thought the alleged misconduct too trivial or insig-

nificant to constitute contempt of our orders. While an

effort was made to resolve questions of fact by inde-

pendent evidence, we were, at times, forced to resolve

inevitable conflicts in testimony, i.e., the credibility of

witnesses. In doing so, we have not considered that mere

numerical superiority of witnesses advancing a par-

ticular version of the facts forced us to accept their

account if we found the opposition’s version more in-

ternally consistent, externally verifiable, or, on the

a LEER OLIN ELOY LS EY EN CIE A a |

SATEEN SE halt RY BOM AAD a PO lg ER ROY Ce -

whole, a far more plausible account of the events in

question. Finally, more than might ordinarily be our

practice we have adhered to the language of those pro-

posed Board findings that we approve. We have done

so not only because of the unusual posture of this case,

already alluded to, but also to save time. Protection of

the rights of the employees affected by respondents’

continued unlawful conduct and the need for speedy

vindication of this court’s prior orders outweigh any

considerations of style.

Our findings of fact and conclusions of law are

attached as an appendix. As they make clear, respond-

ents have flouted our prior decrees in many ways. In a

continued attempt to dissuade employees from joining

the Textile Workers Union of America, the Company

and its management personnel in various plants, despite

our prior orders, have continued to resort to such un-

lawful tactics as engaging in surveillance of organizing

activities, interrogating employees about their union

inclinations, threatening pro-union employees with dis-

charge and other reprisals, discriminatorily altering

their working conditions and discharging them because

of their union sympathies.’ In fact, one of the employees

*A small portion of respondents’ conduct referred to in the

attached findings, principally involving Charles Epley, took

place before our first decree was in effect or while that decree

was stayed for a brief period (see findings 1,2 infra). Although

such conduct was technically not contemptuous, most of it

occurred after our first opinion in early July 1967. In any event,

the conduct was relevant to the issue of anti-union animus in

related conduct occurring while our decrees were in force.

rte ——

Be oan ‘ x Pie PES PPE SPOR DV ON TE RET OP REO AS BEAM SETI INT LE es AERC TA CRN

so discharged had been illegally terminated before, was

reinstated by our prior order, but was then illegally dis-

charged again. We regard this pattern of ilagrantly

contemptuous conduct most seriously. Our system of

justice cannot survive if litigants are seized with the

notion that they can ignore the lawful orders of a court

simply because they may disagree with them. In addi-

tion, the record here strongly justifies the inference that

these respondents deliberately took their chances in

ignoring our decrees because they thought it profitable

for them to do so. Finally, while conflicting testimony

about a specific event may sometimes have been attrib-

utable to difference in perception or recollection, we

cannot escape the impression that many conscious and

deliberate falsehoods were given by company witnesses.

We cannot express too sharply our condemnation and

dismay for this apparent disregard of the legal and

moral obligations which the testimonial oath imports.

Accordingly, we direct that an order be entered

adjudging respondents in civil contempt of this court

and requiring them to purge themselves as set forth

in the Board’s prayer for relief consistent with the

attached findings and conclusions, including offering

immediate and full reinstatement with back pay to

those employees who have been unlawfully discharged,

posting a notice in respondents’ plants in North and

South Carolina for 60 days notifying the employees of

this decision, and paying to the Board all costs and

expenses, including counsel fees and salaries, incurred

by the Board as a result of these proceedings.

The Board shall submit a proposed order within 15

days after the filing of this opinion. Respondents may

submit a counter-order within a like period thereafter,

APPENDIX

I. FINDING oF FAcT

A. The Underlying Decrees

1. On September 1, 1967, this court entered its decree

in Nos. 30,914 and 30,391 (J. P. Stevens & Co. vy,

NLRB, 380 F.2d 292 (2d Cir.)), enforcing an order of

the Board issued on March 22, 1966. By our decree,

this court ordered, inter alia, that J. P. Stevens & Com-

pany, Inc., its officers, agents, successors and assigns:

Cease and desist from:

(a) Discharging, forcing the termination of, re-

fusing overtime work to, or otherwise discriminating

against employees in order to discourage member-

ship in Textile Workers Union of America, AFL-

CIO [“Union”] or any other labor organization.

(b) Discharging or otherwise discriminating

against employees for giving testimony under the

Act.

tivity in respect to union organization.

(d) Interrogating any employee concerning such

union activity by him or other employees.

(e) Threatening its employees with discharge or

other reprisals if they become or remain members of

the Union or give any assistance or support to it.

(f) Altering its working conditions for the purpose

of defeating the organizational efforts of its em-

ployees or of [the Union], or the efforts of any other

labor organization of its employees.

(g) Encouraging or permitting employees to en-

gage in anti-union activity while prohibiting em-

ployees from engaging in activity on behalf of the

Union.

(h) Interrogating and intimidating employees

concerning statements the employees gave to Board

agents.

(i) Encouraging and assisting employees in with-

drawing from the Union.

(j) Instructing employees to watch for and report

to the Company the union activities of other em-

ployees.

(k) Requiring its employees to remove and pro-

hibiting its employees from wearing Union insignia

or threatening its employees with discharge for wear-

ing Union insignia in its plants.

(1) Intimidating and coercing employees into with-

drawing from the Union.

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

straining, or coercing its employees in the exercise

FOOT ee Re rae

of their right to self-organization, to form, join, o

assist [the Union], or any other labor organization, to

bargain collectively through representatives of their

own choosing, and to engage in other concerted ac-

tivities for the purpose of collective bargaining or

mutual aid or protection, or to refrain from any or

all such activities.

2. This decree, entered September 1, 1967, was stayed

by this court on October 7, 1967, pending the Supreme

Court's disposition of the Company's petition for cer-

tiorari, which was denied on December 11, 1967. J. P.

Stevens & Co. v. NLRB, 389 U.S. 1005. At all other

times said decree has been in full force and effect since

its entry. At all material times herein the Company and

the other named respondents had notice and knowledge

of its terms.

3. On March 26, 1968, this court entered its decree in

Nos. 31,164 and 31,245 (Textile Workers Union of

America v. NLRB, 388 F.2d 896 (2d Cir) ), enforcing an

order of the Board, dated March 6, 1967. By this decree,

the court ordered, inter alia, that J. P. Stevens & Com-

pany, Inc., its officers, agents, successors and assigns:

Cease and desist from:

(a) Discharging, forcing the termination of, refus-

ing overtime work to, or otherwise discriminating

against employees in regard to hire or tenure of em-

ployment or any term or condition of employment in

order to discharge membership in Textile Workers

Union of America, AFL-CIO [“Union”], or any other

labor organization.

(b) Discharging or otherwise discriminating

against employees for giving testimony under the

National Labor Relations Act, hereinafter called the

Act.

in respect to union organization or giving the im-

pression thereof.

(d) Interrogating any employee concerning such

union activity by him or other employees in a manner

constituting a violation of Section 8(a)(1) of the

Act.

(e) Threatening its employees with discharge or

other reprisals if they become or remain members

of the Union or give any assistance or support to it.

(f) Altering its working conditions for the pur-

pose of defeating the organizational efforts of its

employees or of Textile Workers Union of America,

AFL-CIO, or the efforts of any other labor organiza-

tion of its employees.

(g) Encouraging or permitting employees to en-

gage in anti-union activity while prohibiting em-

ployees from engaging in activity on behalf of the

Union.

(h) Intimidating, coercing, encouraging, and

assisting employees in withdrawing from the Union.

(i) Instructing employees to watch for and report

to the Respondent the union activities of other em-

ployees.

10a

(j) Requiring its employees to remove and pro-

hibiting its em loyees from wearing union insignia.

(k) In any other manner interfering with, re

straining, or ccercing its employees in the exercise

of their right to self-organization, to form, join, or

assist Textile Workers Union of America, AFL-CIO,

or any other labor organization, to bargain collec.

tively through representatives of their own choosing,

and to engage in other concerted activities for the

purpose of collective bargaining or mutual aid or

protection, and to refrain from any or all such activi-

ties.

4. The decree in Nos. 31,245 and 31,164 has been in

full force and effect since its entry on March 26, 1968,

and at all times herein the Company and the other

named respondents had notice and knowledge of its

terms.

B. Industrial Plant, Rock Hill, South Carolina

5. The Union's organizing campaign at the Com-

pany’s Industrial plant in Rock Hill began in the winter

of 1967. Shortly after Christmas 1967, two employees,

Gerald Rodgers and Bobby Thompson, were talking to-

gether in the smoking booth. The conversation was

interrupted by the Company's personnel manager, Max

Bowers, who summoned Rodgers to overseer Charles

Ford's office. Bowers asked Rodgers if he had “heard

Bobby talking about the union.” Rodgers responded that

he had not. Bowers commented that two or three em-

ployees had come to his office and told him that Thomp-

lla

son had tried to sign them up for the Union, and Bowers

inquired whether Thompson had ever tried to sign

Rodgers up as well; Rodgers told him no. Bowers then

asked Rodgers “if [he] heard Bobby talking about the

union . . . would [he] come out and tell him”; Rodgers

replied that he “couldn't tell him nothing that Bobby

said ... .” Bowers told Rodgers that if he “would volun-

teer some information that they could get [Thompson’s]

kind weeded out before he caused any damage to the

company.” Rodgers then left the office, saw Thompson,

and told him “that he'd better watch it, they was after

him; that they was asking me had he been talking about

the union.” We find that in this conversation Bowers

interrogated Rodgers regarding the Union activities of

employee Thompson, solicited Rodgers to report any-

thing he heard about Thompson's Union activities, and

threatened to discharge Union advocates.

6. On February 9, 1968, Rodgers went to Bowers’

office to change his income tax forms. Bowers asked

him if he had “heard anybody talking about the union.”

Rodgers replied that he had not, whereupon Bowers

turned to R. L. Hale, the superintendent at the Indus-

trial mill who was also present in the office, and de-

clared: “I wish he could be like his mama and come

in and tell us about the ones talking about the union.”

We find that Bowers thus interrogated Rodgers con-

cerning the Union activities of other employees and

solicited him to report on those activities.

7. Bobby Thompson was employed by the Company

on September 6, 1967, at first iu a temporary job. After

02 POE PT sop AR 9 oe ee Saree

—

CIT SS LEER LS CAIN TL RETNA A ia cet NER se

tt ciitneeteainnendl

12a

two months Thompson began work in the tie-in room

where his duties included “changing warps for the

ladies, picking up scrap iron in the weave room, and

carrying out trash, and going down to the slash room,

picking up beams, carrying slashing down there, and

driving a mule train [a battery operated truck] to haul

these things on.” On December 19, 1967, Thompson was

instructed by John Garrison, his supervisor, to bring

the mule train, which had broken down the day before,

to the shop to have it fixed. When Thompson arrived

at work the next morning, he went to the shop to pick

up the mule train; as he was doing so, the mule train

failed to cut off and broke his foot. Subsequent to this

accident, Thompson, whose foot was in a cast, was told

by Bowers that if he merely reported for work the Com-

pany would not have a lost-time accident and would

pay him his full wages. Accordingly, for the next two

weeks Thompson “didn’t do anything but just sit

around” either in the lunchroom, water house or smok-

ing booth. After that Charles Ford, Thompson’s gen-

eral overseer, gave him light tasks to perform, and on

February 7, he returned to his regular job.

8. Prior to his employment with Stevens, Thompson

had been president of a union local at Goldtex Fabrics,

another textile plant in Rock Hill. Consequently, shortly

after beginning work with the Company he helped the

Union’s organizing efforts at the Industrial plant by

distributing authorization cards and talking to em-

ployees about the Union; when he suffered his accident

and was required to sit in the lunchroom for two

13a

weeks, Thompson engaged a number of employees in

conversation about the Union and also wrote “T.W.A.,

Textile Workers of America” on his cast. We find that

the Company was aware of Thompson’s organizing ac-

tivities and sympathies for the Union.

9. On about December 29, 1967, Gerald Rodgers and

Thompson were engaged in the conversation referred

to earlier when Bowers called Rodgers into Ford's office

(see Finding No. 5). About twenty minutes later

Thompson, wearing his cast with the Union reference

emblazoned on it, was also called by Bowers into the

office. Bowers asked Thompson whether he had any-

thing to tell him, and when Thompson replied that he

did not Bowers declared that there was a rumor that

Thompson was trying to sign up employees for the :

Union. Bowers then went on to say that he “wasn’t i

going to have that down here in the plant; that he had :

to run off a man for the same thing when he worked at

the Aragon [plant]. . . . [A]nd when the union had scen

that they couldn’t get in, that the man had come back

and begged for his job back, and that he had hired him

back, and he had made a fine fellow.” Bowers asked

Thompson if he had been president of the union local

at Goldtex; Thompson replied he had been, and Bowers

then stated that he had hired Thompson “in good faith”

not knowing anything about his background. Thompson

asked Bowers if he had anything else to say, and

Bowers said “no, if he heard nothing further from that,

he wouldn’t carry it any further.” We find that Bowers

interrogated Thompson concerning his Union activi-

iteenensnnnssneninnteniniall

l4a

ties, threatened Thompson with reprisals for engaging

in such activities and encouraged Thompson to with-

draw from the Union.

10. On about February 7, 1968, the day Thompson

returned to his regular duties following his accident,

weave room overseer Charles Ford summoned him to

his office and told him that he had been “written-up”

because he was out of his department at the time of

his injury; the “write-up” stated that if he were caught

out of his department again, further disciplinary action

would be taken. We find that Ford issued the written

reprimand to Thompson because of Thompson’s Union

activities.

11. On about February 10, 1968, Thompson went to

Ford complaining of a toothache and requested per-

mission to be let off to go to the dentist. Ford refused

to allow Thompson to leave work, and then asked

Thompson why he wanted “to go around signing up

people . . . for the union when [he knew] they don’t want

it in there.” When Thompson requested a witness to the

conversation, Ford stated that it did not concern any-

one but the two of them. Ford “went on to say that the

union didn’t do anything for you but make alcoholics

out of you. They call you out on strike, make you starve

to death, and they don’t give you any raise, that the

Company gives it to you when they want you to have

it.” Thompson inquired whether that was all, and Ford

said he had something else to discuss with him, that

Thompson was “not running [his] job” to suit him.

15a

Thompson stated he was doing the best he could, but

Ford replied he had “no alternative but to let [him] go.”

Thompson said that whenever he got his money and ter-

mination slip he would know he was fired, and returned

to his job. About fifteen minutes later Ford got Thomp-

son and took him to Bowers’ office. Bowers proceeded

to write down what Thompson and Ford had spoken

about, but refused to record any of the conversation

pertaining to the Union. Bowers refused to give Thomp-

son his final pay because it was a Saturday; Thompson

left the office but in a few minutes confronted Ford

and Bowers again, asserting that since he did not get

his money he was not fired and so was returning to his

job. Ford said “Well, we didn’t fire you; you quit.”

Thompson repeated that he was going back to his job.

He returned to work briefly but Bowers soon approached

him and asked him to come to the back door where two

policemen, who had been called by Bowers, were wait-

ing; Bowers advised the officers that Thompson had

been terminated and if he returned to the premises he

would be charged with trespassing. Thompson then

quietly left the plant. We find that overseer Ford inter- i

rogated Thompson, warned him of the futility of his

activities for the Union, and discharged him from the

Company because of his Union activities.

12. William Nivens began work at Stevens’ Indus-

trial plant in 1950; at the time of his discharge on

March 27, 1968, he was the sole second shift mainte- ;

nance man, and had been for the past seven years; his

work took him into every department in the mill. Prior

16a

to his dismissal, Nivens had received only one “write-

up” in December 1967, but had also received several

commendations on his job attendance and perform-

ance.

13. Nivens became active in the Union campaign to

represent the Stevens’ employees in March 1968. We

find from the evidence in the record that the Company

knew of Nivens’ Union adherence and activties.

14. Nivens attended two Union meetings held on

March 10 and 17, 1968. On March 14, four days after

Nivens had attended his first Union meeting, Eddie

Robinette, the plant engineer and Nivens’ superior,

called Nivens into his office. Robinette declared that he

had been getting “too many complaints” about Nivens,

that Nivens was “talking too much” and “low rating”

him, Welborn, (Nivens’ supervisor) and the machine

shop. Nivens asked how long this was going on, and

Robinette replied, “It's been going on all the time.”

Nivens then asked why the matter had not been brought

up before and “who was telling him that,” but Robinette

refused to mention any names. Nivens asked whether

Robinette was satisfied with him; Robinette stated he

was “satisfied with [Nivens’] work but [he couldn't]

have that talking.” Neither Robinette nor any other

supervisor had ever commented on Nivens’ talking to

other employees before; indeed, the practice in the

plant was that the employees were free to talk to any-

body they wanted to. We find that Robinette repri-

manded Nivens because of his Union activities.

17a

15. A. On Friday, March 22, 1968, Nivens, after he

arrived at the mill, picked up his work card which listed

the jobs he was to perform on that shift: “fix pully on

burling frame #15”; “change motor on loom #282”;

“check wires on loom #256 and power on stop motion.”

Nivens proceeded to perform the first two jobs indi-

cated, but before he could get to loom #256, he learned

that a sanforizer had stopped operating and would burn

the blanket on it if not fixed immediately. Nivens

marked the time on his work card that he was starting

to repair the sanforizer, left the card in the machine

shop, went to the cloth room and fixed the machine.

When Nivens returned to the machine shop, he saw

plant engineer Robinette and shop foreman Herbert

Welborn looking at his card. Robinette said, “I see

you've got a blank place on your card,” and Nivens ex-

plained that he “had a sanforizer standing and the man

was afraid the blanket would burn, and I went and

started it.” Robinette said he wanted to see Nivens in his

office and there, in the presence of Welborn, told him:

“Andy, you've been warned before that these loom

motors have priority” and “My boss has been on me

about these looms standing. If you're not going to run

your job right, I'd rather you’d go back home.” Nivens

asked whether that meant for him to take his tools, and

Robinette replied that it did.

B. Contrary to what Robinette said to him at the

time of his discharge, Nivens had never before been

advised that one or two inoperative looms had priority

over other pieces of machinery, particularly the burling

eet cel BLS

ARR eT OP IEE ENE Oe SMT RN Set HEINE CuK rg: Ny sy

18a

frame and sanforizer. In fact, Robinette had told Nivens

the precise opposite. Indeed, there were 737 looms in the

plant but only 16 or 17 frames and just four sanforizers;

and clearly Nivens had reason to believe production

would be more affected by the breakdown of either a

frame or a sanforizer than by a loom, and the former

had always been given greater priority.

C. We find that the Company terminated Nivens

because of his Union activities.

C. Longview Plant No. 1, Hickory, North Carolina

16. The Union organizing campaign at Longview

Plant No. 1 began in February 1969. About March 10,

1969, the Company required all its employees at the

plant to attend a meeting concerning the Union, where

they were addressed by Robert Froeber, president of

Stevens Hosiery Division. Froeber stated in part:

People sometimes sign cards for the union without

realizing what may be the legal consequences.

One thing the union organizers always say is that if

you sign the union card, then nobody except the union

and the Labor Board will ever see the card which you

sign. You should realize and understand that this

statement by the union may turn out to be completely

false.

Unions often try to get themselves legally certified

on the basis of the signed cards—without employees

being given any opportunity to vote on the matter

at. all—and sometimes regardless of how the em-

19a

ployees have voted. When that happens the cards

that have been signed definitely do have to be brought

out and laid on the table and shown in an open public

hearing.

Then the assurances of the union organizers turn

out to be totally untrue and misleading.

This is exactly what happened in a Stevens plant

down in Statesboro, Georgia. There the employees

voted the union down decisively. Despite that, the

union,—this same Textile Workers AFL-CIO union

—started a legal proceeding in which all the people

who had signed cards were subpoenaed and forced

to go to the witness stand in a public hearing at the

courthouse, to prove that they had signed the union

cards.

What you think of that, of course, is for you to decide

—but that is precisely what this same union did to

those employees—after having assured them that

their signed cards would always be kept private and

confidential!

Beginning about a week later, the Company posted

notices containing the excerpted portion of Froeber’s

speech on plant bulletin boards. We find that the Com-

pany’s warning that it could learn which employees

signed Union authorization cards constituted a threat

in the circumstances of this case, as more fully set

forth below.

17. At about the time Froeber spoke to the employees,

he also met with the Company’s supervisors telling them

20a

that Longview Plant No. 1 was the newest plant in the

Stevens organization, that the Union was moving in

fast, and that he would not permit this plant to be the

first one organized. He then stated that it was up to the

department heads to work closely with the people to

try to defeat the Union, that the supervisors’ relations

with the employees would be the main thing that would

determine whether or not the employees wanted a union,

and that “most of the responsibility lay upon the super-

visors” for the Union “getting the firm foothold that

[it] had. . . .” Then, although Froeber told the super-

visors not to threaten or interrogate employees con-

cerning their Union activities, he also stated that Union

advocates had to be stopped and could be discharged, so

long as their association with the Union was not the

excuse for firing them. Shortly after Froeber spoke,

William Thor, the plant manager, held a separate

meeting with the supervisors where he took up the

same themes as Froeber had. He opened his remarks

by commenting that they knew “why we are here” and

went on to say that if the Union were successful, they

would “have people like the Jones boys and Gladys

Whitener [pro-union employees] telling us what to do.”

Thor declared, “We've got to get rid of these kind of

people regardless of what it takes, no matter what it

takes to get rid of them, and any others to keep the

union out of this mill, out of this plant.” He concluded

by saying that if the supervisors “heard anything else

to report it” to him or personnel manager Glen Deck,

since the Company “had an attorney especially hired

2la

to advise them in union affairs and he would call this

attorney.”

18. Gladys Whitener worked for Stevens from Sep-

tember 1965 until her discharge on March 27, 1969.

At all relevant times she worked as a first shift quality

checker at the Company’s Longview Plant No. 1. White-

ner’s duties required her to circulate among the some

91 employees in the auto-boarding, pre-boarding and

dye-boarding sections of the boarding department in

order to check and report on the quality of hosiery

they manufactured. Although Whitener received a per-

sonnel action report during her tenure at Stevens, her

work was generally satisfactory and she had been

steadily promoted.

19. Whitener was one of the staunchest advocates

of the Union when its organizing campaign began at

Longview Plant No. 1 in February 1969. She attended

every meeting the Union called and while on the job

vigorously promoted the Union to the various em-

ployees with whom she came in contact; indeed, some

employees regarded her as the Union leader. Whitener

also expressed her pro-Union sympathies directly to

management, e.g. to Harold Abee, her immediate

superior, and we find that the Company knew of them.

20. A. Harold Abee’s treatment of Whitener changed

following her initial conversation with him concerning

the Union. Abee “followed [Whitener] everywhere

[she] went, even early in the mornings when [she]

would check the hands of the operators. He walked up

22a

one aisle and watched [her] while [she] checked the

other aisle; and when [she] changed aisles, he changed

and watched [her] from behind the machines. Every-

where [she] went, he was right behind [her] like a

shadow.” Abee had never acted in this manner before,

indeed, Whitener “had a hard time finding him when

[she] needed him up until then.”

B. After Froeber’s speech on March 10, 1969 (see

Finding 16), Abee made a change in Whitener’s job

designed to limit her contact with her fellow employees.

Prior to this time Whitener would wheel in a mobile

table among the employees in the boarding department

while they worked; Whitener would then inspect an

operator's work at the latter’s table, where she would

fill out her quality reports. But Abee now required

Whitener “to not check the work on [the operators’]

tables anymore, to check all the work on [her] table,

to bring it back to [her] table” even though this was a

slower procedure and especially made it difficult for

Whitener to point out to the employees where their

work was faulty.

C. At the same time that he made the work change

described above, Abee admonished Whitener over and

over again not to talk to the operators, until White-

ner was finally discharged. Accordingly, Whitener

made herself a small sign which stated “I am not

allowed to speak. Harold’s [Abee’s] orders,” and for a

short while held it up whenever an operator attempted

to engage her in conversation. The other employees

23a

were under no similar prohibition: they were allowed

to talk on the job, as they always had been, about what-

ever they wished, whether related to their work or not.

Indeed, the Company up until this time—and again

after the Union campaign died out—tolerated all sorts

of non-work-related activities on the job, not merely,

for example, contributions to charities or donations to

a bereaved family, but also commercial solicitations

for such things as cosmetic products, candy, and vari-

ous other items—activities in which even supervisors

indulged. Such solicitations were allowed so long as

they did not involve the Union.

D. On one occasion, Abee reprimanded Whitener

about her using the bathroom too much. Whitener,

who had a kidney infection and was taking medica-

tion, entered the bathroom with two fellow employees,

Sally Pugh and Opal Hawn. When she came out Abee

criticized her because she had “been in the bathroom

about eight minutes.” He later repeated his complaint

to finishing superintendent Causby. Whitener asked

Abee why he had not also brought in either employee

Pugh or Hawn to reprimand them about excessive use

of the bathroom, since “he saw them go with me and

come back with me.” Both Abee and Causby said they

would “take care of them later.”

E. We find that the Company harassed Gladys White-

ner by shadowing her, by orally reprimanding her, by

forbidding her to speak to fellow employees and by

changing her working conditions, all because of her

Union adherence and activities.

ene ee ee Pee ee

= ‘

21. A. During March 1969, Whitener told Leonard

“Red” Duckworth, a research technician who attended

some supervisory meetings, that she “was upset because

of the pressure Harold [Abee] was putting on [her] about

the union.” Duckworth invited her to his office where

he said, “I know about the pressure . . . . In fact, they

have had three Gladys meetings already . . . . Gladys,

if you don’t stop messing with the union, you are going

to get fired.” At that point Duckworth’s telephone rang

and Whitener invited him to come to her home later.

Duckworth arrived at Whitener’s trailer that afternoon

and stayed for several hours. Duckworth commented

that hosiery president Froeber had stated in a super-

visors’ meeting that “they were going to have to find

out who the union leaders were and get rid of them,”

and that the supervisors did not have to fire the em-

ployees for Union activity but could always find another

excuse. Duckworth quoted Froeber as also saying that

“We're going to have to get rid of Gladys Whitener;

she is a leader and all the people are following her. . . .

And we'll probably have to pay her, but we would be

better off to pay her to stay out of the plant than we

would be to pay her to come in.”

B. On the morning of March 26, 1969, Harold Abee

took Whitener to Causby’s office. En route Abee de-

clared that Whitener had “threatened people’s quality

with the union, if they didn’t sign the union card [she]

would give them bad quality reports.” Whitener told

Abee that he knew “better than that,” that she

“check[ed] the quality fair,” but when Abee claimed that

25a

he had witnesses, Whitener demanded to see one. Abee

told Whitener to wait in Causby’s office until he could

get the witnesses; after almost three hours, however,

he returned empty-handed. Whitener asked him where

the witnesses were and Abee replied that he was “still

going to check it out further,” but that Whitener could

go to lunch. When Whitener returned from lunch,

Abee would not let her do work normally but placed

her behind his desk where he could watch her. The

next day, March 27, when Whitener reported to work,

Abee intercepted her and told her to come with him to

Causby’s office, whereupon, notwithstanding her de-

nials, he terminated her for pressuring employees on

behalf of the Union.

C. We find that at no time did Gladys Whitener ever

change the quality report on any employee's work, or

threaten to change the quality report, depending on

whether or not the employee supported the Union. We

further find that on March 27, 1969, the Company dis-

charged Gladys Whitener because of her Union adher-

ence and activities.

22. James Jones first went to work at the Company's

Longview Plant No. 1 in November 1967 as a line fixer

operating and maintaining machines manufacturing

stockings. He voluntarily left Stevens in December 1968

but returned the following January to his previous job

on the third shift. When Jones was rehired, he was told

by R. C. Coley, then the department head over the knit

room, that he was glad to see him back, since he had

done a good job before; Coley also told James’ brother,

. |

26a

Robert, who worked together with James, that James

was one of the “best line men there,” a compliment that

was echoed by Henry Kaylor, the immediate supervisor

over the third shift.

23. James Jones participated actively in the Union

organizing campaign at Longview Plant No. 1 in the

early part of 1969. He passed out Union literature and

had employees sign cards designating the Union as their

bargaining representatives; he once even jokingly

offered a card to his immediate supervisor, Henry Kay-

lor. Jones also attended a Union meeting on March 10,

1969, subsequent to which he went to work at the plant.

Prominently displayed in his shirt pockets that night,

as was his custom, Jones carried some Union pamphlets

and authorization cards. James Jones was the only em-

ployee in this department who so openly carried these

materials into the plant. We find that the Company was

aware of his support of the Union.

24. Soon after reporting to work Jones was stopped

by Henry Kaylor; Kaylor pointed to Jones’ shirt pocket

and declared: “I'd like to talk to you about that.” Jones

agreed but referring to Robert who was standing nearby,

said, “I'll use my brother as a witness.” Kaylor refused

to allow this and told Robert Jones to go back to his

machine. He then grabbed James by the arm and led

him to the supply room, where he said he did not want

to see Jones “soliciting or campaigning for the Union

on the job”; James told Kaylor that he had “no intention

of doing so.” Prior to this conversation, however, it was

27a

the practice and custom among the employees in this

department to engage in non-work-related activities dur-

ing working time; such activities included: collection;

playing “check-pool,” in which supervisors like Kaylor

joined; and commercial solicitations, also engaged in

by supervisors, and in some cases, even by the wives of

supervisors who were not employed at Stevens.

25. During the course of the third shift on March 10,

all operations in the plant were shut down and the em-

ployees assembled to hear Froeber’s speech concerning

the Union (See Finding 16). Shortly thereafter, Kaylor

accused Jones for the first time of leaving his line of

machines too much. Later, after Jones returned from

one of his scheduled breaks, Kaylor also criticized him

for staying too long on the break. Again, Kaylor had

never before reprimanded Jones about overstaying his

break; in fact, the employees customarily extended

their allotted ten minutes to twelve or fifteen minutes

without comment by their supervisor. On this particular

occasion, however, Jones had not overstayed his break.

He was supposed to take his break at 1:00 a.m., but

delayed leaving at the request of his brother who asked

James to watch his machine while he went to the bath-

room; when Robert returned at approximately 1:04

a.m., James then left, returning at 1:15 a.m.

26. Normally, five employees operated the hosiery

machines, aided by a “float fixer” and the shift super-

visor; each employee looked after 60 machines. During

the evening of March 10, however, since there was no

18 ER RT Eng yee. PT ety,

OP OECIHL T

PO RET T a R R RO TRO RE crap ty

28a

“float fixer,” and one regular employee, Don Herman,

was absent from work, the four remaining fixers, to-

gether with Kaylor, tended Herman’s line of machines

from time to time along with their own. It was also the

practice that when employees went on break, the fixer

who operated the adjacent line of machines would

operate the breaking employee's line as well. As soon as

James Jones returned from his 1:00 a.m. break, two of

the other four employees at work that night, Robert

Jones and Randy Youngblood, went on their scheduled

breaks. And, after reprimanding James Jones for al-

legedly overstaying his break, Kaylor, without letting

James know, joined them. James Jones was left tending

to his own line of machines, the lines of his brother, of

Youngblood, and of the absent employee Herman; James

received no assistance from the remaining employee,

who was inexperienced and handled his own machines

exclusively. It was virtually impossible for James Jones

conscientiously to look after the operation of 240 hosiery

machines, particularly since the machines were run-

ning a new and difficult style of hose. When Kaylor

and the others returned from their break, James Jones

approached Kaylor and said: “Next time that you go

on break, I would appreciate it if you will stop by and

tell me and I will at least try and run all the machines.”

Kaylor became angry and declared, “Insubordination,

get your tools and go home.” Jones asked “what for,”

but Kaylor again told him to get his tools and leave,

and then asked him to come into the office with him;

when Jones refused, Kaylor looked at the clock and

stated that it was “1:30, and your time is stopped.” At

29a

no time during this conversation with Kaylor did James

Jones use any offensive, abusive or vulgar language.”

27. The next morning, March 11, just after the third

shift ended, an informal meeting ensued in the knitting

room office concerning James Jones; participating were

R. C. Coley, the department head over the machines

that Jones operated, Arlie Graves, assistant department

head, Bill Thor, plant manager, Milburn Hubbard, the

department head over the knit room, and Henry Kaylor.

Coley asked Graves whether he had heard about Jones,

and Graves replied that he had not. Coley explained

that Jones had been sent home the night before and

that he had come into the plant with union literature

in his shirt pockets; Kaylor said that Jones had asked

why he was being sent home and that the reason he,

Kaylor, had given him was insubordination. At that

point research head Truitt Baird, who had just walked

in the door, commented that they “should be more spe-

cific, that insubordination did cover a pretty wide terri-

tory.” When Coley asked Graves what he thought, the

latter replied that Coley was “walking a mighty thin

line, but the boy does do good work and I think you

should keep him.” Coley then said no more to Graves,

turning the conversation away from him. At the con-

clusion of the meeting it was decided that “insubordi-

nation” was the reason that would be used to discharge

Jones; Thor said that he would call the Company's

attorney “and check with him to see if this would hold

up in court in case Mr. Jones decided to carry his dis-

charge to the court.”

30a

28. The same morning that the supervisors met to

discuss James Jones’ fate, but apparently before the de-

cision was made, James returned to the plant and, with

his brother Robert spoke to Milburn Hubbard, the head

fixer over all three shifts. James mentioned to Hubbard

that he was for the union and would “try to get it in

the plant the best [he] knew how and any way [he]

could”; Robert then asked whether James was fired..

Hubbard said that it was not for him to decide and told

James to come to work that night. When James did, Bill

Hicks, the second shift supervisor, stopped him and told

him to report to the office, where he confronted Kaylor

and Hubbard. Kaylor read from a piece of paper, stating

that it had been recommended that Jones’ employment

be terminated, that the matter had been reviewed by

the plant manager, and that the recommendation had

been approved. Shortly after James’ discharge, Robert

Jones asked Kaylor whether James had been fired be-

cause of his Union activities; Kaylor said he would

rather not say. We find that the Company discharged

James Jones on about March 10, 1969, because of his

Union activities.

D. The Roanoke Rapids Plants, Roanoke Rapids,

North Carolina

29. Doris Bowers worked for the Company a total of

14 years. When, following a sick leave, she was rehired

in the fabricating department, she was told by person-

nel manager Leonidas Hux, that “all they say about

you [in your record] is something good.” Bowers worked

3la

as a fringe inspector in the fabricating department for

five years until her discharge; she inspected and classi-

fied terry cloth towels. ’

30. A. Bowers was the only employee who associated

with Lillian Hux and Shirley Hobbs, fellow employees

who had previously been discharged by the Company

because of their Union activities and who had been

ordered reinstated by this court in our earlier decree.*

Bowers also attended a Union rally held in Charlotte, f

North Carolina, on about February 25, 1968. After she ;

attended this rally, the attitude of her supervisors 4

toward her changed. Before, “everyone was quite :

friendly and would speak when they saw [her] or some- ,

times even go out of their way to speak; and after that ;

| day they seemed to avoid [her] . . . and avoid passing

[her] and, if they had to pass [her], would look the other é

way.” Bowers also began having trouble with her serv- t

ice boy, Wayne Edmonds, who was responsible for dis-

tributing the towels for inspection and then collecting

them. Edmonds began bringing Bowers all the towels

that were more difficult to inspect. These towels were

supposed to be divided equally among all the inspec-

tors before doing the preferred towels; instead, the

other two inspectors on Bowers’ shift, Peggy Rhome

and Kay Bailey, would point to the buggies of towels they

wanted to inspect, although this was against Company

policy, and Edmonds would oblige them. Bowers com-

PFO RS TED

*See J. P. Stevens & Co., 157 NLRB 869, 944-46, 951

(1966), enf’d, 380 F.2d 292 (2d Cir.), cert. denied, 389 U.S.

1005 (1967).

hb PT SIP NEMO ARE ALBERS RE

32a

plained at first to Edmonds about this unfair treat-

ment. When he refused to answer she went to her

floorlady, Edna Parrish, who had once told a group of

employees, including Bowers, that the Company knew

everyone who was for the Union. Parrish promised she

would talk to Edmonds; but in reality she was unsym-

pathetic and passed off Bowers’ complaints as a joke.

Before Bowers became involved with the Union, a serv-

ice boy would be reprimanded if she complained about

his performance. Because Bowers now received the

more difficult work to inspect, she found it increasingly

difficult to keep up her production.

B. On or about March 12, 1968, Bowers began wear-

ing a Union button on the job; only the reinstated em-

ployees wore such buttons in this department. As soon

as she took her coat off at the beginning of her shift,

Marshal Cox, the department supervisor, noticed the

button, got floorlady Parrish and went into the office of

Mason Lee, the general superintendent of the depart-

ment; in a few seconds, Lee, Cox, Parrish and general

overseer Robert “Pete” Rawlings emerged and began

staring at Bowers. For the rest of the day, whenever

Bowers would look up, even on her lunch break, there

would be another supervisor staring at her.

C. On March 13, 1968, each inspector was working

on a buggy of dyed yarn towels, which were the harder

towels to inspect; there was another partial buggy of

dyed yarn towels waiting to be inspected. Both Rhome

and Bailey finished their buggies before Bowers, and

33a

under the normal procedure one or the other should

have turned to the partial buggy of dyed yarn before

doing the fringe blanks, which were easier to inspect.

Edmonds, however, brought them both buggies of

fringe blanks to work on and then, after Bowers finished

her buggy of dyed yarn towels, brought her the remain-

ing partial buggy. Bowers asked him whether Edna

Parrish told him to bring her those towels. Edmonds

checked with Parrish, returned and said that Parrish

had instructed him to bring Bowers those towels. Bow-

ers said that she would make a note of it, and Edmonds

replied that he did not care what she did, that she could

make all the notes she wanted; Bowers told Edmonds

not to “talk ugly” to her or she would note that too,

whereupon Edmonds replied that supervisor Tommy

Gardner had told him not to let her “talk back” to

him. Later that day Edna Parrish called Bowers into

the office where she was confronted by Tommy Gard-

ner and Marshall Cox. Gardner told her that he had

cautioned her before about arguing with the service

boy, that she “couldn’t get along with any service boy”

and that she should “go back out there and do the work

that’s assigned,” because if he had to bring her back

in the office again, he would discharge her. During this

conversation Gardner also showed her several towels

that he asserted she had classified and said he “couldn't

keep overlooking that sort of thing”; Bowers could see

nothing wrong with the towels. Gardner, who had never

had to write Bowers up before, gave her a reprimand,

which he had prepared even before he spoke to her.

a i aaa a

mesce: -_ eee

i as CN UL |

34a

D. Following this conversation, Bowers often would

have to service herself, pulling up the heavy buggies

of towels to her table and pushing them away when she

was through, because Edmonds would not assist her

when she called him. If Bowers insisted that Edmonds

help her, he would bring towels to the other inspectors

before he brought hers. Meanwhile, Edna Parrish would

stand back “and watch [Bowers] stay out of towels and

[made] no move” to call Edmonds herself.

E. We find that the Company was aware of Doris

Bowers’ adherence to the Union and because of that

adherence discriminated against her with respect to

work assignments, engaged in a campaign of harass-

ment against her and threatened her with discharge.

31. On the morning of March 19, 1968, Doris Bowers

received two buggies of Sears Roebuck fine arts towels

to inspect; these towels were the most difficult to ex-

amine and normally one of the other inspectors should

have gotten at least one of these buggies. As Bowers

struggled to take the towels, which were very heavy,

out of the buggy and onto her table, Tommy Gardner,

walked up.to Peggy Rhome, one of the other inspectors,

who was working on light weight, easy to handle

towels, and “helped her get towels off her buggy an¢

put them on her table”; Gardner in the past had never

assisted any inspector in this manner. After she - fin-

ished examining the Sears towels, Bowers noticed that

there was no attempt to sew in the label on her work.

Instead, one of the reinspectors, Betty Mosely, came

over to the completed buggy of towels and took a num-

35a

ber of them away; as a rule, however, reinspectors did

not reexamine towels after a buggy had been finished.

Mosely, another reinspector, Ruby Davis, Marshall Cox,

Edna Parrish, Wayne Edmonds and Tommy Gardner

then proceeded to examine the towels. Shortly thereafter

Parrish brought Bowers into the office to meet with Cox

and Gardner. Gardner had a stack of towels on his

desk, which he said Bowers had examined, but he

showed her only two of them containing minor defects.

He declared he had warned her before, on the occasion

of her earlier write-up, that he could not “overlook this

thing” and that he had “no choice but to discharge”

her. We find that the Company fired Doris Bowers on

March 19, 1968, because of her Union adherence and

activities.

32. Shirley Hobbs had been unlawfully discharged

by the Company previously because of her participa-

tion in union organizing activities; she was ordered

reinstated by this Court’s decree and returned to work

at the fabricating department, where her job was fold-

ing and inspecting napkins.* Hobbs continued her

Union activities: after her shift she distributed Union

leaflets and, together with Doris Bowers and two other

reinstatees, Lillian and Rochelle Hux, wore a Union

button on the job. We find that the Company knew of

the continued pro-Union sympathies of Shirley Hobbs.

33. On about March 13, 1968, Hobbs reported to

work feeling ill. At 9:00 o'clock that morning she de-

*See J. P. Stevens & Co., 157 NLRB 869, 951 (1966), enf’d,

308 F.2d 292 (2d Cir.), cert. denied, 389 U.S. 1005 (1967).

36a

cided to leave, advising Ray Mabry, her service boy,

that she wasn’t going to fold any more napkins. Hobbs

got her coat and pocketbook, whereupon fellow em-

ployee Lillian Hux asked her where she was going;

Hobbs explained that she was sick and going home.

Hobbs then looked for floorlady Janet Evans, who was

standing in the aisle near the shipping department

talking to another employee, Dale Gossett, and told

her also that she was sick and going home. Evans said

“okay.” After leaving the plant, Hobbs decided to see

a doctor, and went to the Union hall to borrow ten

dollars for the fee from Virginia Kiser, an organizer:

while there, Hobbs noticed that she had been followed

by James Alston, a Company supervisor who went by

in his car. Hobbs then left the hall and, too ill to drive

herself, was chauffered to her doctor by Bob Carsey,

another organizer. As soon as Hobbs had been exam-

ined by the doctor, she called the plant and advised

“Pete” Rawlings that the doctor had written a certi-

cate attesting to the fact he had seen her that day and

had told her not to return to work until the following

week. Rawlings told her not to bother, that she no

longer had a job “to come back to” since she had walked

off without receiving permission from Evans; Rawlings

said she could see Mason Lee about the matter, but it

“wouldn't do any good.” Hobbs returned to the plant

the next day and met with Rawlings and Lee; the latter

stated that she had broken a Company rule by walking

off the job without permission. Hobbs explained that

she did not walk off the job, that Evans had given her

37a

permission to leave, and that she had been sick and

had gone to see the doctor; she then showed the doc-

tor's certificate, but Lee replied that it “didn’t mean any-

thing to him.” We find that the Company discharged

Hobbs on March 13, 1968, because of her support of

the Union.

34. A. In March 1968, Thaddeus Browder was an

assistant overseer in the carding room at the Rosemary

Plant No. 2. One of the employees who worked for

Browder was a sweeper, Joe Nicholson. Browder, im-

pressed by Nicholson's excellent job performance, de-

cided to write up a commendation that would go into

his personnel file and broached the idea to his immedi-

ate supervisor, general overseer Franklin Babson, who

agreed with Browder’s plan. Browder also told Nichol-

son that he was going to receive an award and, accord-

ingly, to wear a clean shirt. Several days after Browder

spoke to Babson about the matter, Babson came into

work early and told Browder that if the Company gave

Nicholson an award, “they more than likely would

have to give them to everybody”; Browder responded

that that was a good idea “if everybody deserves them.”

Then Babson advised Browder that “there was informa-

tion that Joe had said that he had two brothers working

in the shipyard that were members of the union and

he did not know how he would vote if a vote was held;

and that because of this . . . he felt like [they] shouldn't

give Joe his commendation at this time; maybe at a

later time, they could give it to him.” Nicholson, who

had faithfully brought a clean shirt to the plant with

eee

him for a week or so, never heard any more about his

award.

B. The following July 1968, Babson told Browder to

evaluate all the men working for him as to their job

performance. Browder rated Nicholson “excellent.”

Babson reviewed Browder’s recommendations and de-

clared that because of the “information on Joe he

thought we should rate Joe poor and not excellent.”

Browder insisted that Nicholson should be “rated at

least good,” and this was then agreed upon.

C. We find that the Company denied Nicholson a

favorable personnel action report, and down graded

his work evaluation, because of its belief that Nicholson

favored the Union.

35. Until 1968, Browder often had occasion to go

through file cabinets and drawers in the desks in order

to find various forms or records. He frequently noted

“ a listing of everybody for several years,” which had,

next to each name, an “F”, “A” or “U.” One night at

work, Browder received a note from James Butler, the

second shift overseer, that originated with Babson:

that note required Browder “to grade every man as best

[he] could whether [he] thought he was for the union,

against the union, or whether it was unknown.” Brow-

der submitted two such lists to Babson approximately

three months apart. We find that the Company re-

quired and maintained quarterly reports on the em-

ployees’ Union activities.

E. Gulistan Plant, Aberdeen, North Carolina

36. James Biby began work at the Gulistan plant

about November 1964, as a forklift driver; shortly

thereafter, he became a general mechanic in the Com-

pany’s maintenance shop, a position which the Com-

pany helped foster at first by allowing Biby time off to

attend a mechanics training school. Biby’s duties en-

compassed the servicing and repair of virtually all the

Company's machinery, and more than any other em-

ployee on his shift, he worked throughout the plant, as

well as in the shop. Biby performed his job well.

37. Biby was an active participant in the Union

organizing campaign that commenced at the Gulistan

plant in about February-March 1968: he attended

Union meetings and spoke to employees about the

Union at their homes and in the plant, during his break

and lunch times; he succeeded in soliciting signed Union

authorization cards from some forty fellow workers. On

one occasion, on about March 16, 1968, while Biby

was lunching with a group of employees in the machine

shop he handed out notices of a Union meeting, when

Wade Reynolds, a weave room supervisor, came into

work on a bird house. One of the employees kidded

Biby, suggesting that he give Reynolds a copy of the

notice. Biby asked the supervisor whether he wanted

one, telling him “he would make us a good man’;

Reynolds ignored the request. We find that the Com-

pany had knowledge of Biby’s Union adherence and

activities.

ie aah wentiethe 2n t

Mh 200 One re ngpE rarer ing esto

40a

38. A. On March 14, 1968, Biby was welding a boiler

near the preparation department. When he took his

break at a nearby concession area, he was asked by

Larry Cole, a beaming machine operator, to check the

level of oil in his machine; Ernest Owens, Cole’s super-

visor, stood nearby during the conversation. Biby

checked the oil in Cole’s beamer, found it low and filled

it up. Biby then returned to his welding job, and shortly

thereafter his supervisor, Barney Kirk, came over to

him and said that Owens had complained about Biby’s

“bothering his help.” Kirk informed him that from then

on, Biby “was not to do anything to anybody’s machine

or fix anything without a work order or a special

order from him,” instructions which Owens also re-

peated to him. Up until this time, however, the practice

in the plant had always been that an employee in any

department could ask a passing mechanic, or go di-

rectly to the maintenance shop to get a mechanic, to

assist with routine servicing and repair jobs, without

first obtaining a work order.

B. On about March 18, 1968, plant manager Cecil

Beith addressed all the Gulistan employees concerning

the Union. The next day, Biby was working in the

boiler room, and when it came time for his break he

went. to a concession area near the finishing depart-

ment. Although there was a break area nearer to where

Biby was working, the vending machines there were

often out of order; but in any event, the Company per-

mitted employees to take their break in virtually any

location within reasonable distance of where they were

4la

working. However, on this occasion, Barney Kirk came

up to Biby and declared that he was “at it again,” that

he was supposed to take his break in the shop; Biby

explained that in the four years he had been there, he

always took his break “wherever [he] was working at

or the nearest place to it.” Kirk responded that from

now on Biby had to go back to the shop to take a break,

even though, as Billy told him, a ten-minute break did

not even allow him enough time to walk to the shop

and back from some parts of the plant. Kirk also raised

another matter, that Biby was “always talking to some-

body in the shop or wherever you're at.” Kirk stated that

Biby had been talking loudly to two employees the pre-

vious day, and that when Kirk asked a bystander what

was going on, he was told “That was Biby talking Union

meeting.” Biby explained that Kirk had been misin-

formed, that the conversation had concerned Biby’s

motorcycle which he wanted to sell. Kirk said that he

just “wanted that talking stopped” since “there was too

much of it.” Up until this time, however, talking about

a variety of topics—such as politics, integration, racing

and ball games—was commonplace in the shop, and

no supervisor had ever commented on it.

C. We find that by the conduct described above the

Company altered Biby’s working conditions, and dis-

criminatorily restricted his movements because of his

Union activities.

39. After his regular shift, on about March 18, 1968,

Biby returned to the plant to use the machine shop's

equipment for some personal work. The leadman on

SP Re PP REY -

Pree SEE y+

° t

—

42a

the shift, George Vanhoy, assisted Biby, working with

one lathe while Biby used another. A few days later,

Kirk called Biby into the office and explained that he

was being discharged for using the shop for personal

work without having obtained permission. In fact, Com-

pany employees and supervisors frequently used the

machine shop, both during their shifts and afterwards,

for a variety of purposes, which included their own

work and the work of others. Prior permission was un-

necessary. We find that the Company discharged Biby

on or about March 20, 1968 because of his Union activi-

ties.

40. Larry Cole and Robert Swanson Mabe ran beamer

machines at the Gulistan plant when the Union cam-

paign began in March 1968. Both employees were active

in that campaign: they attended meetings, talked to

employees regarding the Union at the plant and on the

parking lot, during their breaks, and tried to get them

to sign authorization cards designating the Union as

their bargaining representative. Cole, too, after the

campaign began led a group of employees to their su-

pervisor, Ernest Owens, and asked for more money;

on that occasion Owens inquired whether they had

“anything to do with the Union.” We find that the Com-

pany was aware of the pro-Union sympathies of Cole

and Mabe.

41. After Cole and Mabe became involved in the

Union, their supervisor Ernest Owens continuously

watched them and followed them to the bathroom,

43a

writing down in a notebook the times they entered and

left. Furthermore, before the Union campaign started

the employees would take, at times, up to 30 minutes

for a break and up to an hour for lunch and no super-

visor would object; indeed Owens often would join

them. But now Owens criticized these practices: on

March 22 and May 1, 1968, he wrote up Larry Cole

for exceeding his lunch and break allowances; on the

latter date he also issued a written reprimand to em-

ployee Mabe for the same alleged misdeed. Owens

changed other working conditions as well: He checked

the work of Cole and Mabe particularly closely, not-

withstanding the years they had been there; he allowed

the employees to smoke only on their breaks, instead

of permitting them to occasionally light a cigarette

between breaks; and he required them to go through

him to get a maintenance man to work on their ma-

chines, rather than calling a man themselves. Finally,

Owens moved Cole, despite his objections, to a beamer

that was more difficult to operate than the one he was

used to; Cole had so disliked this machine that he pre-

viously had refused an opportunity to transfer to a more

favorable shift because it would have meant operating

it. After the Union campaign ended, non-discriminatory

conditions in Cole’s department were restored. We find

that the Company changed its existing work practices

because of the Union campaign, particularly with re-

spect to employees Cole and Robert Swanson Mabe,

and issued written reprimands to them because they

engaged in protected Union activities.

ARTCC

Me TPS

F ALEC a8 ae UNE 0 aD eR Rm Nay IE ATM Tarren emaueNeity

44a

42. A. Bobby Ray Mabe worked as a first shift carpet

sample cutter at the Gulistan plant from February 1966

to July 1968; his supervisor was Billy Whittle. Bobby

Mabe was active in the Union campaign commencing

in March 1968; he attended meetings, he was a member

of the Union’s organizing committee, and he spoke to

employees, at their homes and at the plant, during his

breaks, in an attempt to have them sign authorization

cards. We find that the Company was aware of the pro-

Union sympathies of Bobby Ray Mabe.

B. On about March 9, 1968, Bobby Mabe was dis-

tributing Union cards to various employees prior to

the start of his shift. After beginning work for the day,

supervisor Whittle called Mabe, who had some of the

cards sticking out of his shirt pocket, to his office, where

he announced “a new Company policy” to him—that

Mabe was not to leave his department without getting

permission, that he was to go directly to the bathroom

and back without speaking to anyone, and that when

he punched out, he was to go home immediately. Pre-

viously, employees could take their breaks as they

wished and no supervisor had ever objected. Whittle

told Mabe that his instructions to Mabe applied to all

the employees in the department, but by the time Mabe

left the Company in July 1968, several employees had

not yet been informed by Whittle of the new “regula-

tions.”

C. On about March 14, 1968, Whittle advised Mabe

of another rule, that he could not leave his carpet cut-

ting machine while it was in operation; when Mabe

45a

protested, Whittle amended the rule to require Mabe

to stay within an area marked eff around the machine.

Mabe’s previous practice had been to leave the machine

while it was running to go anywhere in the area neces-

sary to obtain carpet to be cut into samples.

D. On about April 1, 1968, Mabe put a pro-Union

sticker on his car. Whittle thereafter required Mabe to

note on his time card whenever he left for and returned

from a break; so far as Mabe knew, this requirement

was not applicable to any other employee in the depart-

ment. Whittle also restricted the time Mabe could take

for his work and lunch breaks; before the Union cam-

paign started, however, his supervisor had never raised

this matter with Mabe.

E. We find that the Company changed Bobby Mabe’s

working conditions in order to discriminatorily restrict

his contacts with his fellow employees because of his

involvement with the Union.

G. Carter Plant, Wallace, North Carolina

43. Charles Epley worked for Stevens at its Carter

plant at Wallace, North Carolina, from December 11,

1965 until his discharge on February 14, 1968. At all

relevant times, Epley operated a framing machine, a

massive piece of equipment that processed cloth after

it had been dyed. Epley became involved in the Union

campaign that began at the Carter plant in June 1967,

when he joined with the Union organizer in going to

the homes of various employees to solicit their signa-

PO MLA ROOTS en, FON NT Kg

EXTON TTS INTE TERI

46a

tures on authorization cards. Epley also went to Union

meetings, and on August 2, 1967, attended a meeting at

the home of a fellow employee, Joe Scronce. As the

employees left the meeting they noticed two Company

supervisors from the framing department, Robert Quinn

and Davis Chestnutt, in a car slowly circling the block

on which Scronce lived. About a month later the Union

telegraphed the Company, notifying it that Epley was

a member of the Union’s organizing committee; the

Company posted on bulletin boards throughout the

plant copies of both the telegram and its response,

indicating that Epley’s Union “membership or activity”

would not give him “any immunity of any sort, nor any

preference over other employees.” The name of no

other employee in Epley’s department was displayed in

this manner. We find that the Company had knowledge

of Epley’s Union activities since the time he attended

the Union meeting on August 2, 1967, and certainly

after it received the Union’s telegram.

44. Until Epley became involved with the Union he

had never received any reprimand from the Company.

Thereafter, however, the Company began a campaign

of harassment directed against him and began criticiz-

ing him for mistakes that had always been tolerated

in other employees. On August 4, 1967, Epley received

a write-up for supposedly standing on a guard rail near

his machine. On about August 25, 1967, supervisor

Goodrich asked Epley where his scissors case was, and

Epley explained that he never used one; Goodrich or-

dered him to get a case, which Epley did. The next day,

47a

however, Epley resumed his usual practice of not

using a case, and when Goodrich saw him again, he

and supervisor Smith issued a written reprimand to

him. Frame operators used scissors cases or not, as they

pleased, and no other operator but Epley was criticized

for not having one. On or about September 8, 1967,

Epley received another write-up, this time for running

the cloth in his machine through an improper finish,

which resulted in its being discolored. This sort of error,

however, was commonplace and such cloth was merely

run through the machine a second time, using the

proper finish, or if the discoloration was too great, the

cloth was simply re-dyed a different color and sold

accordingly. Other than Epley, no operator had a writ-

ten report of it placed in his file. On October 30, 1967,

Smith issued another reprimand to Epley because he

had been observed pushing the “reset” button on the

generator of his frame after it had kicked out due to

an overload. Although the employees had been warned

not to reset the generator themselves but to call an

electrician to do it, no employee other than Epley had

ever before been written up for doing so. On No-

vember 28, 1967, Epley was again reprimanded for

running cloth with the wrong tolerances. Like the other

incidents, however, such a mistake was common, and

no one other than Epley had been written up about it

before. We find that the Company harassed and criti-

cized Epley and changed the enforcement of work rules

with respect to him, as described above, because of his

Union activities.

48a

45. On about February 12, 1968, Epley was attaching

a beam of cloth onto the frame, a difficult process,

particularly on Epley’s frame which was the oldest in

the department. While Epley was attaching the beam,

the beam fell off the de-beamer and one end of it landed

on the floor; the only damages resulting was one small

dirt spot on the cloth. Supervisor Goodrich came up

and told Epley to put the beam ‘back on the frame and

run it. The next afternoon, however, Supervisor Smith

called Epley into the office, instructed him to leave

work and to return the following day; when Epley di¢

so, Smith told him he was fired “on account of what had

happened.” Although Epley’s termination sheet indi-

cates that the reason for the discharge was because he

allowed the beam to fall on the floor, in fact it was a

common occurrence, especially on Epley’s frame, for a

beam of cloth to be thrown off the machine. No em-

ployee had ever been reprimanded for this before;

rather, when it happened he was merely told by his

supervisor to put the beam back on the frame and con-

tinue to run it. We find that the Company discharged

Epley on February 14, 1968 because of his Union

activities.

46. Harry Nelson Hunter was employed by Stevens

from July 1960 to July 1966, and then from November

1966 until he quit on September 30, 1967; at all rele-

vant times herein Hunter worked as a rechecker in the

tubing department, responsible for examining cloth

prior to its being sent to the customer. Hunter partici-

pated in the Union campaign that began at the Carter

49a

plant in June 1967: he spoke to employees both at the

plant during break times, and at their homes, signing

them up for the Union; and he attended all the Union’s

meetings, including the one at Joe Scronce’s home. (see

Finding 43). On about August 21, 1967, the Union sent

a telegram to the Company, advising it that Hunter

was a member of its organizing committee; as in

Epley’s case, the Company posted the telegram and its

response on the bulletin boards around the plant. Hun-

ter was the only employee in the tubing department

whose Union association was thus displayed.

47. A. Hunter had never received a reprimand dur-

ing all the time he worked as a rechecker, until he be-

came involved in the Union. Then on about September

2, 1967, Hunter learned that cloth he had inspected

was being pulled back from packing and rechecked,

something that previously was never done. Hunter was

shown three pieces: one piece was supposedly dyed

unevenly, but Hunter’s supervisors admitted there was

nothing wrong with it; a second piece had some pin-

holes in it; and the third contained some grease spots

about the size of a cigarette end. Although Hunter com- :

plained that the lighting at the table where he checked t

the cloth containing the pinholes was inadequate to

reveal that kind of defect, he nonetheless received a !

written reprimand. Thereafter, the lighting at that par-

ticular table was improved by the Company. Moreover,

Hunter, like all the recheckers, had previously been

given wide latitude in permitting cloth that contained

minor defects, like these pieces, to go on to the cus-

tomer.

Been. on Oe REE SE MY TL ee LN eS NLS eR a

RELIES Note

50a

B. On about September 16, 1967, more of Hunter's

cloth was pulled back from packing, and the Company

complained that two pieces contained defects; Hunter

insisted that one of the pieces was still first quality,

and the other piece, containing a grease spot, could

have been treated and still sent out. Hunter received

a write-up for this incident, too, which he refused to

sign.

C. Shortly after receiving the September 16, 1967

reprimand, Hunter made arrangements to find another

job. On about September 30, he quit the Company, ex-

plaining to supervisor Jones that he was leaving for

“more money, less pressure, and better working con-

ditions.” We find that the Company treated Hunter in

the manner described above because of his Union ar-

tivities and, by forcing him to quit on September 30,

1967, constructively discharged him because of his

union affiliation.

48. A. Louis Elwood Futrell was employed by the

Company from April 1963 until October 12, 1970; from

June 1966, he worked as a rechecker in the bookfold

tubing department. On December 1, 1969, the Board

listed Futrell as a witness in its pre-trial presentation in

the instant proceeding, indicating therein that Futrell

had given a Board investigating agent a statement. On

January 2, 1970, Futrell, who had never before been

reprimanded in any way by the Company, received his

first write-up from supervisor David Jones for allowing

cloth to pass that had picks running through it. As

previously noted (see Finding 47A ), the Company per-

5la

mitted its recheckers broad discretion in determining

what could go to the customers as first quality goods.

In this instance the cloth had not been returned by the

customer, but the picks had been discovered before it

left the plant; and the defect was so minor that neither

Futrell nor Herbert Aycock, a rechecker on another

piece of the same cloth, noticed it.

B. On February 17, 1970, Futrell received another

personnel action report from supervisor Jones, this time

for uneven nap; Futrell, who had shipped similar cloth

in the past, and still considered the cloth first quality,

refused to sign the write-up. On March 10, 1970, Futrell

received his third written reprimand for allowing a

beam of cloth to be folded open-width rather than book-

fold, i.e., folded with a crease down the middle. Futrell

was not the only employee responsible for this error,

but he was the one who discovered it. Moreover, this

was a commonplace mistake and in the past, a re-

checker simply refolded the cloth, or reframed it if nec-

essary the correct way, but was never written up for the

error by his superior. Futrell was reprimanded again on

June 3, 1970, this time because cloth he had rechecked

had been returned by a customer; as indicated pre-

viously, it had never been the Company's practice to

write up a rechecker for defects in cloth even if the cloth

was sent back by the customer.

C. On August 20, 1970, Futrell received a write-up

because during his break, he brought a soft drink to

Doris Lanier, a fellow employee in an adjacent depart-

ment. It was, however, common practice both before and

Fog Ds dee

52a

after Futrell received his reprimand for employees in the

two departments to visit with each other under similar

circumstances, without criticism from management.

Subsequently, on another occasion Futrell was engaged

in conversation with Lanier when the shift starting buz-

zer sounded, and he arrived at his work station late:

even though the practice among many employees was to

start work a few minutes late, Futrell was criticized for

this by supervisor George Sholar, and was told several

days later by supervisor Jones that he would be written

up again.

D. We find that beginning in January 1970, the Com-

pany issued written reprimands to employee Futrell

and was more exacting of him than of other employees

because Futrell gave Board agents a statement and was

scheduled by the Board to be a witness in the instant

proceeding.

49. On Friday, October 9, 1970, Futrell was working

an extremely busy shift, when the tuber whose work

he was checking indicated that Futrell should inspect

a new lot of cloth. Later on that evening Futrell dis-

covered that the cloth was folded book-width (creased )

when it should have been folded open-width. Although

Futrell was partly responsible for this error, it was also

attributable to the scheduler and to the tuber. On Octo-

ber 12, 1970, supervisor McDonald told Futrell that

“due to circumstances,” the Company could not use

him anymore. As previously noted, it was not uncom-

mon for cloth to be misfolded, and no employee was

written up for this prior to the Company's campaign of

53a

harassment against Futrell; nor, on this occasion, did

the Company reprimand, let alone discharge, the em-

ployees who were responsible for misfolding the cloth

together with Futrell. We find that the Company dis-

charged Futrell on October 14, 1970, because he co-

operated with the Board in the instant proceeding by

giving it a statement and because he was listed by the

Board to be a witness herein.

II. Conciusions oF Law

1. By engaging in interference, restraint, and coer-

cion, respondent Company has engaged in unfair labor

practices within the meaning of section 8(a)(1) of the

Act and in violation of the aforesaid decrees of this

court.

2. By discriminating in regard to terms and condi-

tions of employment of, and ultimately discharging,

employees Bobby Thompson, William Nivens, Gladys

Whitener, James Jones, Doris Bowers, Shirley Hobbs,

James Biby, Charles Epley and Harry Nelson Hunter,

respondent Company has discouraged membership in

the Union and engaged in unfair labor practices within

the meaning of section 8 (a)(3) and (1) of the Act

and the aforesaid decrees of this court.

3. By discriminating in regard to the terms and

conditions of employment of employee Louis Elwood

Futrell, and by discharging employee Futrell, because

he cooperated with the National Labor Relations Board

in the investigation of the instant proceeding by giving

an affidavit to Board investigators and was named as

54a

witness herein, respondent Company has engaged in

unfair labor practices within the meaning of sections

(8)(a)(4), 8(a)(3) and (1) of the Act and the afore.

said decrees of this court.

4. By acting in concert and participation with re-

spondent Company in the commission of the unfair

labor practices referred to above, with notice and knowl-

edge of the underlying decrees, respondents Max Bow-

ers, by his conduct described in Findings 5, 6 and 9,

Mason Lee, by his conduct described in Findings 30

and 33, Edna Parrish, by her conduct described in

Findings 30 and 31, Marshall Cox, by his conduct de.

scribed in Findings 30 and 31, Tommy Gardner, by his

conduct described in Findings 30 and 31, and Robert

“Pete” Rawlings, by his conduct described in Findings

30 and 33, engaged in unfair labor practices in viola-

tion of the Act and the aforesaid decrees of this court.

5. By engaging in such conduct, the Company, Max

Bowers, Mason Lee, Edna Parrish, Marshall Cox, Tom-

my Gardner, and Robert “Pete” Rawlings, were and

are, in civil contempt of the decrees of this court dated

September 1, 1967 and March 26, 1968.

Ill. RELIEF

On the basis of the foregoing, the Company, Max

Bowers, Mason Lee, Edna Parrish, Marshall Cox, Tom-

my Gardner and Robert “Pete” Rawlings are adjudged

in civil contempt of the decrees of this court dated

September 1, 1967 and March 26, 1968, and are required

to purge themselves as prayed in the Board’s Second

Amended Motion insofar as is consistent with the above

findings and conclusions.

55a

JUDGMENT OF THE COURT BELOW

United States Court of Appeals

FOR THE SECOND CIRCUIT

;

NATIONAL LABOR RELATIONS BoarD,

v. Petitioner, | Nos. 30,914

J.P. Stevens & Co., INc., ; 30,391

Mason LEE, EDNA PARRISH, MARSHALL 30,245

Cox, TOMMY GARDNER, PETE RAWLINGS, 31,164 )

Max Bowers, Respondents. |

(AMENDED)

CONTEMPT ADJUDICATION

The Court, having on July 13, 1972, filed its Findings

of Fact and Conclusions of Law and an opinion, per

curiam, finding that J. P. Stevens & Co., Inc., and its

supervisors, Max Bowers, Mason Lee, Edna Parrish,

Marshall Cox, Tommy Gardner and Robert “Pete”

Rawlings violated the decrees of September 1, 1967 and

March 26, 1968, it is

ORDERED AND ADJUDGED that J. P. Stevens &

Co., Inc., Max Bowers, Mason Lee, Edna Parrish, Mar- :

shall Cox, Tommy Gardner and Robert “Pete” Rawlings i

are in civil contempt for violating said decrees, and it is ;

FURTHER ORDERED that the Company by its of-

ficers and agents, and the individual respondents and

each of them shall purge themselves as follows:

VA” APE Ha aeO OER er *

56a

1. Henceforth all said respondents shall comply in

full with the Court’s decrees of September 1, 1967 and

March 26, 1968, and not in any way, by action or inac-

tion, commit, engage in, induce, encourage, permit or

condone any violation of the said decrees.

2. The Company shall forthwith remove from the

personnel files of Bobby Thompson, William Nivens,

Doris Bowers, Larry Cole, Robert Swanson Mabe,

Charles Epley, Harry Nelson Hunter and Louis Elwood

Futrell any written disciplinary warnings, unfavorable

personnel reports or unfavorable “write-ups” issued to

said employees since September 1, 1967; and shall

change Joe Nicholson’s July 1968 job performance rat-

ing from “good” to “excellent”.

3. The Company shall forthwith offer to the follow-

ing named employees their former positions or if any

such position is no longer available, a substantially

equivalent job, without prejudice to their seniority or

other rights and privileges:

Bobby Thompson

William Nivens

Gladys Whitener

James Jones

Doris Bowers

Shirley Hobbs

James Biby

Charles Epley

Harry Nelson Hunter

Louis Elwood Futrell

57a

and make them whole for all loss of pay due to the dis-

crimination against them, as found by the Court, with

6 percent interest thereon. The amount of such back-

pay, unless agreed to by the parties, shall be computed

by the Board in a backpay proceeding, subject to further

review by the Court.

4. The Company shall preserve and upon request

make available to the Board or its agents at such reason-

able place or places as the Board’s Regional Director may

specify for examination, copying and reproducing all

the payroll, personnel and other records necessary or

useful to determine the backpay due and to verify com-

pliance with this order.

5. Respondents shall post in conspicuous places in

each of the Company’s plants in North Carolina and

South Carolina, including all places where notices to

employees are customarily posted for a period of 60

consecutive days, copy of this adjudication, and, along-

side, copy of the notice appended hereto as an Appen-

dix. Said notice shall be signed on behalf of the Com-

pany by its president and the chairman of its Board of

Directors and each of the respondents individually, and

said copies of the adjudication and notice shall be

maintained in clearly legible condition throughout such

posting period and respondents shall assure that they

are not altered, defaced or covered by any other mate-

rial.

6. The Company shall mail to the home of each of

its employees presently employed or employed since

PRIETO SAE TD OES AML

SREY, reeep pz yiga ce wo ene rete

58a

September 1, 1967, at any of its plants in North and

South Carolina, a copy of the aforesaid notice with the

Signatures of the respondents reproduced thereon,

and provide the Board’s Regional Director for Region

11 with proof of such mailing.

7. The Company shall issue written instructions to

its supervisors to comply with the provisions of the

underlying decrees and this order and to abide by the

undertakings in the Notice attached hereto as an Ap-

pendix and shall require each supervisor to signify in

writing that he has received such instructions. The rec-

ords of compliance herewith shall be preserved and

made available to the Board as provided in paragraph

4, above.

8. At such reasonable times after the entry of the

order, as the Board may request, the Company shall

convene during working time by departments and shifts

all its employees in the Industrial Plant, the Longview

Plant, the Roanoke Rapids Plants, the Gulistan Plant

and the Carter Plant (hereafter collectively referred to

as the Five Plants), and provide facilities and permit

a Board agent to read to the department employees the

contents of the attached Appendix.

9. Upon request of the Union, made within 6 months

from the date hereof, the Company shall immediately

grant the Union and its representatives reasonable

access to the plant bulletin boards and all places where

notices to employees are customarily posted, at all of

the Company’s plants in North Carolina and South

59a

Carolina for a period of one year from the date of

request.

10. If within the next two years, the Board schedules

an election in which the Union participates at any of

the Five Plants, then, upon request by the Union, the

Company shall afford it reasonable access to each of

the Company’s said plants and appropriate facilities to

deliver a 30-minute speech to employees on working

time, the date thereof to be within 10 working days

before but not within 48 hours prior to any such election.

11. In the event that during a period of two years fol-

lowing entry of this order, any supervisor or agent of

the Company convenes employees at any of the Five

Plants and addresses them on the question of Union

representation, upon request of the Union, the Com-

pany shall make available to the Union and its repre-

sentatives on each such occasion at a mutually agree-

able time, similar facilities so that the Union may pre-

sent its view to employees assembled on Company time

for a similar period.

12. Upon request of the Union the Company shall

immediately furnish it with a list of the names and

addresses of all of the respondents’ employees at each

of its Five Plants.

13. Respondents shall fileseparate sworn statements

with the Clerk of this Court and a copy thereof with

the Director of the 11th Region of the Board within 15

days after the entry of this order and again at the end

of the posting period and again within 5 days after any

60a

election within the next two years at the Five Plants in

which the Union participates specifying what steps

have been taken to insure compliance with the Court's

directions including compliance by all the supervisors

with the terms of the Court’s decrees.

14. Respondents shall pay to the Board its costs and

expenses including counsel fees and salaries incurred

in the investigation, preparation, presentation and final

disposition of these proceedings. Said amount, unless

agreed upon by the parties, shall be fixed by further

order of the Court upon submission by the Board of a

verified statement of such costs and expenses.

The Court reserves jurisdiction to assess fines, issue

writs of body attachment or take appropriate action

against any officer or agent of the Company and against

any of the individual respondents responsible for non-

compliance with the foregoing provisions of this order

and the decrees of this court.

/s/ HENRY J. FRIENDLY

/S/ STERRY R. WATERMAN

/S/ WILFRED FEINBERG

September 13, 1972

6la

APPENDIX

NOTICE TO EMPLOYEES

PURSUANT TO

A JUDGMENT OF THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT

WE HEREBY NOTIFY all the employees of J. P.

Stevens & Co., Inc. that on , 1972, THE COM-

PANY and the following supervisors: MAX BOWERS,

MASON LEE, EDNA PARRISH, MARSHALL COX,

TOMMY GARDNER AND ROBERT “PETE” RAWL-

INGS, and each of them, were adjudicated in civil con-

tempt by the United States Court of Appeals for the

Second Circuit because it found that agents of the

Company including the undersigned supervisors, dis-

obeyed judgments which the Court of Appeals entered

against J. P. Stevens & Co., Inc. on September 1, 1967

and March 26, 1968. THESE JUDGMENTS FORBID

THE COMPANY, its officers, agents, successors and

assigns from:

—Discharging or otherwise forcing the termination

of or discriminating against employees to discourage

membership in the Textile Workers Union of America,

AFL-CIO (hereinafter referred to as the Union) or in

any other labor organization. 4

Sec

BEE TSF PIC yo

—Discharging or otherwise discriminating against

employees for giving testimony in any proceeding un-

der the National Labor Relations Act.

Se!

62a

—lInterfering, restraining or coercing employees in

their right to form, join or assist the Union or any other

labor organization.

The Court has found that despite its two judgments,

we have discharged 9 employees for engaging in Union

activities and one employee because he gave an affi-

davit to Board investigators and was named as a Board

witness; and done acts forbidden by the Court.

Weare now telling you sincerely that WE WILL NOT

—Encourage or discourage membership in the Tex-

tile Workers or any other union or take reprisal against

anyone for giving testimony under the National Labor

Relations Act:

—By discharging or forcing the termination of em-

ployees;

—By restricting the movements of employees within

the plant;

—By downgrading the work of employees;

—By harrassing employees;

—By making onerous work assignments to em-

ployees;

—By changing the working conditions of employees;

—By giving employees written or oral reprimands

or write-ups or unfavorable personnel reports.

We also inform our employees that WE WILL NOT

63a

—Interrogate employees with respect to their or any

other employees’ Union activities.

—Solicit reports about employees’ Union activities.

—Encourage employees to withdraw from the Union.

_Threaten employees with discharge or other reprisal

for engaging in Union activities.

—Shadow employees in the plant or elsewhere for the

purpose of spying on their Union activities.

—Make inquiry or require any employees to inform

supervisors as to the Union activity of employees.

—In any manner interfere with, restrain or coerce

our employees in the exercise of their right to self-

organization, to form, join or assist the Union or any

other labor organization, to bargain collectively through

representatives of their own choosing and to engage in

any other concerted activity for the purpose of collec-

tive bargaining or mutual aid or protection, or to re-

frain from any or all such activities.

Shots NEN Dd eh ee wr Bt

| pusobnn

64a

WE WILL forthwith offer to the employees named

below REINSTATEMENT TO THEIR FORMER POSI-

TION if available or to a substantially equivalent posi-

tion if their former jobs are not available and WE

WILL REIMBURSE EACH OF THEM for any loss of

earnings suffered by them because of the discrimination

against them:

Industrial Plant, Rock Hill, South Carolina

Bobby Thompson

William Nivens

Longview Plant No. 1, Hickory, North Carolina

Gladys Whitener

James Jones

Roanoke Rapids Plants, North Carolina

Shirley Hobbs

Doris Bowers

Gulistan Plant, Aberdeen, North Carolina

James Biby

Carter Plant, Wallace, North Carolina

Charles Epley

Harry Nelson Hunter

Louis Elwood Futrell

65a

WE WILL remove the disciplinary warnings, unfavor-

able reports and write-ups from the files of the followin g

employees:

Bobby Thompson—Industrial Plant, Rock Hill

William Nivens—Industrial Plant, Rock Hill

Doris Bowers—Roanoke Rapids Plants

Joe Nicholson—Roanoke Rapids Plants

Larry Cole—Gulistan Plant

Robert Swanson Mabe—Gulistan Plant

Charles Epley—Carter Plant

Harry Nelson Hunter—Carter Plant

Louis Elwood Futrell—Carter Plant

We further NOTIFY our employees that WE WILL

in good faith comply in full with the judgments of the

Court of September 1, 1967 and March 26, 1968, and

with the provisions of the contempt order, a copy of

which is posted alongside this Notice. The Court has

retained jurisdiction to deal with any of us who do not

obey the Court, including a body attachment.

Dated:

J. P. Stevens & Co., Inc.

By:

President

Chairman, Board of Directors

Max Bowers

et aiapize|

QRiiwiorenicas Mean

Mason Lee

Edna Parrish

Marshall Cox

Tommy Gardner

Robert “Pete” Rawlings

This Notice must remain posted for a period of 60 con-

secutive days from the date of posting, and must be

maintained in clearly legible condition throughout such

posting and must not be altered, defaced, or covered

by any other material.

If employees have any question concerning this Notice

or compliance with its provisions, they may communi-

cate directly with the Board’s Regional Office, 1624

Wachovia Building, 301 North Main Street, Winston-

Salem, North Carolina 27101 (Telephone (919) 723-

2300).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.