Asheville Hosiery Co.

National Labor Relations Board - Board Decisions

Mar 29, 1939

11 N.L.R.B. 1365 (N.L.R.B. 1939)

11
In the Matter of ASHEVILLE HOSIERY COMPANY and AMERICAN FEDER-
ATION OF HOSIERY WORKERS
Case No. C-792.-Decided March 29, 1939
Hosiery Industry-Interference , Restraint , and Coercion : anti-union state-
ments ; threat of shut-down in event of successful organization ; permitting
ejection of union employees by non-union employees ; praising conduct of oust-
ing employees ; employer ordered to cease such practices-Discrimination: dis-
charge for union activity ; refusal to grant protection at work to union em-
ployees-Reinstatement Ordered : of discharged and ejected employees-Back
Pay: awarded to discharged and ejected employees-Remedy: respondent ordered
to assure employees that plant will not shut down, instruct employees that
violence in the plant will not be permitted , and take effective action to enforce
instructions.
Mr. Jacob Blum and Mr. Herbert 0. Eby, for the Board.
Harkins, Van Winkle and Walton, by Mr. Thomas J. Harkins and
Mr. Kester Walton, of Asheville, N. C., for the respondent.
Mr. Daivid Rein, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by American Fed-
eration of Hosiery Workers, herein called the Union, the National
Labor Relations Board, herein called the Board, by Bennet F. Schauf-
fler, Regional Director for the Fifth Region (Baltimore, Maryland),
issued its complaint dated January 4, 1938, against Asheville Hosiery
Company, Asheville, North Carolina, herein called the respondent,
alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of
Section 8 (1) and (3) and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. The com-
plaint alleged in substance that the respondent had discharged George
Baxter and had driven from the plant Lloyd Brookshire, Wayne
Jones, Charles Lissenbee,' F. A. Silvers, Ed Taylor, Jack Pinkston,
i This name occasionally appears in the record as Lisenhee.
11 N. L. R. B., No. 122.
164275-39-vol. xi-87 1365
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clyde Shaft, Clifton Nuckels, Maude King, Bonnie Silvers, and Lucy
Silvers for the reason that each of them joined and assisted the Union,
and had thereafter refused to reinstate them ; and that the respond-
ent had caused and permitted to be circulated in its plant a petition
discouraging membership in the Union, and that, by said act and by
other acts intimidating and coercing its employees in an attempt to
prevent them from joining a labor organization of their own choosing,
the respondent had interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed to them in Section
7 of the Act.
A copy of the complaint, accompanied by a notice of hearing, was
duly served upon the respondent and the Union. On January 10,
1938, the respondent filed an answer to the complaint denying that it
was engaged in interstate commerce and that it had committed the
unfair labor practices alleged in the complaint.
On January 11, 1938, an additional charge having been duly filed,
the complaint was amended to include an allegation of violation of
the Act through the exclusion of Howard Jarrett 2 and the refusal
to reinstate him because of his membership in and affiliation with the
Union. An amendment to the answer filed by the respondent denied
this allegation.
On January 6, 1938, the Regional Director issued an order post-
poning the hearing. A copy of said order was duly served upon the
respondent and the Union.
Pursuant to the order of postponement, a hearing was held at
Asheville, North Carolina, from January 11 through January 22,
1938, before William H. Griffin, the Trial Examiner duly designated
by the Board. The Board and the respondent were represented by
counsel and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues was afforded all parties. At the hearing,
on motion of counsel for the Board, the complaint was dismissed as
to Wayne Jones and Charles Lissenbee. At the close of the Board's
case a motion by counsel for the Board to amend the complaint to
conform to the proof in the case was granted by the Trial Examiner.
During the course of the hearing the Trial Examiner made numerous
other rulings on motions and on objections to the admission of evi-
dence. The Board has reviewed these rulings of the Trial Examiner
and finds that no prejudicial errors were committed. The rulings
are hereby affirmed.
On July 12, 1938, the Trial Examiner filed his Intermediate Report
in which he found that the respondent had engaged in unfair labor
practices within the meaning of Section 8 (1) and (3) of the Act,
2 It appears from the record that Howard Jarrett's full name is William Howard
Jarrett.
i
ASHEVILLE HOSIERY COMPANY ET AL. 1367
and recommended that the respondent cease and desist therefrom and
take certain specified affirmative action to effectuate the policies of the
Act. Exceptions to the Intermediate Report were thereafter filed by
the respondent. On November 1, 1938, oral argument was held
thereon before the Board, and a brief was submitted by the respond-
ent. The Board has reviewed the exceptions and the brief filed by
the respondent and finds the exceptions to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Asheville Hosiery Company is a Delaware corporation engaged in
the manufacture of hosiery at Asheville, North Carolina. The raw
materials used by the respondent in the manufacture of hosiery are
silk, cotton, dyestuffs, and other chemicals. The chief raw material
is silk, 80 per cent of which is purchased by the respondent from a
firm in Chicago, Illinois. Other necessary materials such as coal and
machinery and machinery parts are purchased outside the State of
North Carolina and shipped to the respondent's plant. About 95 per
cent of the products manufactured by the respondent are sold outside
of North Carolina, principally through a brokerage house in New
York City. The respondent manufactures an average of 2,700 dozen
hose a week and the total value of its products in the year 1937 was
$750,000. The respondent employs approximately 220 employees.
II. THE ORGANIZATION INVOLVED
American Federation of Hosiery Workers is a labor organization
affiliated with the Textile Workers Organizing Committee, which
is in turn affiliated with the Congress of Industrial Organizations.
It admits to membership employees of the respondent.
III. THE-UNFAIR LABOR PRACTICES
A. The relationship between the respondent and its employees
The respondent, Asheville Hosiery Company, is a personally owned
corporation. Ninety-nine per cent of the common stock of the re-
spondent is owned by Theo. Y. Rodgers. The remaining 1 per cent
is divided between John T. Rodgers, son of Theo. and general man-
ager of the plant, and a Mr. Bell, an attorney. The relationship be-
tween the Rodgerses and the employees of the respondent is strongly
paternalistic. The owners have exhibited a considerable interest in
the personal affairs of the employees and their families, an interest
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which has led the employees to turn constantly to them both for
financial assistance and for advice.
This relationship strongly colored the attitude of the Rodgerses
toward unionization among the employees . Moreover , in his pre-
vious business experience , Theo. Rodgers had had what John Rodgers
described as an "unpleasant incident " with a union, which had
resulted for him in a feeling of hostility toward all labor organiza-
tions. This sentiment , if not shared by John Rodgers , had, in any
event, been imparted to him as a basis of policy in the management
of the plant.
Because of the strong personal relationship existing between the
Rodgerses and the employees , the Rodgerses regarded any step by
them toward unionization as a direct affront. This attitude is best
illustrated by the following excerpt from the testimony of John
Rodgers :
Q. Was it your thought that before any employee of yours
joined a labor union or engaged in any union activity , that be-
cause of your close relations with your employees that such em-
ployees should just have come to you and talked with you about
any complaint , if any, that they had before engaging in such
activity?
A. I don't think he should have come to me and told me if he
joined a labor union or not, but I did think maybe it came about
from a little dissatisfaction of some nature and that was the
nature of forming an organization . I would think surely if they
had a complaint that they would have come to me and told me
what it was and if it was anything about their work that was
unpleasant or unfair I felt it could be adjusted.
Q. Do I correctly state the sequence of your testimony in this
way, that you had very close and friendly relations with your
employees, that is, first?
A. Yes, sir.
Q. And if any of your employees elected to join a labor union
that was indicative of the fact that they may have had a com-
plaint of some sort against the company , is that correct?
A. I believed that the formation of an organization is usually
the outgrowth of dissatisfaction . That is my belief.
Q. And therefore , if they had such complaint to induce them
to sign membership cards in a labor organization on account of
your friendly relations they should have talked to you about the
complaint and not the labor organization?
A. I would have.
ASHEVILLE HOSIERY COMPANY ET AL. 1369
Q. And because they had first joined a labor union before
speaking about any complaint you felt very disappointed in the
first instance, or angry, is that correct?
A. Yes, sir, I was surprised.
That this view was shared by many employees of the respondent
is revealed in testimony by some of them that they abandoned their
membership in the Union because they feared that Rodgers might
be displeased if he learned of such membership."
Similar findings by the Trial Examiner in his Intermediate Report
as to the paternalistic relationship existing between the Rodgerses
and the employees evoked the contention from the respondent that
such conduct could not justly be rebuked. However, it should be
clear that we make such findings with respect to this relationship,
not with a view toward censure, but rather as an aid in evaluating
the conduct of the respondent, and in determining whether such
conduct was in violation of the Act, as charged.
B. The discharge of George Baxter
George Baxter was employed as a legger for the respondent.
At the time of his discharge, he had been in the respondent's employ
for approximately 4 years.
In late October or early November 1937 Baxter, on a visit to
Greensboro, North Carolina, called at the office of the Union in
that city. Subsequently, upon his return to Asheville, Baxter com-
menced the organization of the employees of the respondent into
the Union, cooperating with Floyd Stanton, organizer for the Union,
who at Baxter's suggestion had come to Asheville for this purpose.
A week of union activity culminated on November 21 with the ten-
tative organization of a local comprising the employees of the re-
spondent and the election of a committee to "be in full charge"
until permanent officers were chosen. On the next day, Monday,
November 22, Baxter was discharged by John Rodgers.
At the time of his discharge, Baxter accused Rodgers of discharg-
ing him because of union activities. Rodgers denied the accusation,
but, according to Baxter's testimony, stated, "George this is like a
bad finger on a hand, if it affects the whole hand, you have got to
take it off." This statement was not specifically denied by Rodgers
3 An example of this appears in the testimony of Sara Gregg, one of the employees, who
testified as follows : "I did not want the mill to go union, and I did not want the union
in our plant because Mr . Rodgers had been too nice , too nice for us to do anything that
he might not approve of."
Mary Duckett tore up her union card after she had spoken to her mother and "she
said she did not think it was the thing . She said that Mr. Rodgers had treated us all
fairly nice . She did not think we ought to go against him in that way."
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and we find Baxter's testimony on this point to be true. Clyde
Shaft testified that Rodgers, on leaving Baxter's machine after
having discharged him, stopped by the machine of Clyde Shaft,
who had joined the Union during the past week, and told him that
Baxter had just been discharged. Rodgers warned Shaft that he
was keeping bad company, and told him to behave himself. Rodgers
admitted this testimony to be true.
The union committee, which had been selected the previous eve-
ning, immediately called upon Rodgers in his office to protest the
discharge of Baxter. Rodgers maintained that Baxter had not been
discharged for union activities but rather for bad work. However,
when Ed Taylor, one of the members of the committee, became par-
ticularly insistent, Rodgers told him to watch out or he would be
discharged for bad work also. The following day, Rodgers apolo-
gized to Taylor for that statement and told him he did not under-
stand how he had become mixed up in the matter.
The respondent contends that the discharge of Baxter was due
entirely to his bad work, and was in no way caused by his activities
in the Union. At the hearing it introduced records comparing the
work of Baxter with that of seven other employees. These records
show clearly that Baxter was the poorest of the eight and had been
for some time. Other figures show Baxter to have made the poorest
record of all the leggers for the week preceding his discharge. In
addition, considerable testimony was introduced to show that Baxter
was negligent and careless in his work and had been guilty of mis-
conduct of various kinds, including gambling and drinking.
Despite this evidence of Baxter's bad work we do not believe that
this was the motivating cause for his discharge. About 6 months
prior to his discharge, Baxter had been transferred to a better machine
which operated more rapidly and thus increased his earnings on a
piece-rate basis. Rodgers denied that this transfer to a better machine
was in recognition of good work, but it was admitted that this was
the usual method of promotion for knitters. The records of work
over a period of time compare Baxter's work with only seven other
selected employees and there is no showing that Baxter's work per-
formance was poor as compared to that of all the employees in the
plant. Indeed, Rodgers admitted on cross-examination that Baxter
produced the minimum amount of stockings that he expected from
his employees. The testimony as to Baxter's conduct during the per-
formance of his work is exaggerated to the point of incredibility and
much of it is trivial in nature.4 Moreover, on cross-examination,
4 Examples of the evidence to show misconduct such as drinking and gambling on the
part of Baxter may be seen in testimony quoting Baxter to the effect that he drank a
gallon of liquor a day and could make more money playing poker than working on his
machine.
ASHEVILLE HOSIERY COMPANY ET AL. 1371
many of these witnesses who testified to Baxter's negligent conduct
admitted that what they said about Baxter might very well apply
to most of the other employees in the plant.5
There is considerable evidence to show that Rodgers on November
22 knew of Baxter's union activities. Baxter testified that Brewer,
the foreman for the respondent, in discussing Baxter's case with
him told him that Rodgers had known of his trip to Greensboro at
the time of Baxter's discharge. Brewer testified that he had stated
only that Rodgers had learned of this trip since the discharge. The
whole nature and tenor of the discussion between them leads us to
believe that Baxter's version of this incident is the true one.
Ed Taylor testified that on Tuesday, November 23, Rodgers, in
speaking to a number of employees, stated that he had never been
so surprised as when he had learned on Sunday, November 21, that
a union was being formed in the plant. Rodgers and others testified
that he had referred to "Monday" as the date of his learning about
union organization at the plant. Some of this latter testimony, how-
ever, is indefinite ,6 and, moreover, it is somewhat unnatural to refer
to the preceding day as "Monday" rather than as "yesterday." The
relationship existing between Rodgers and the employees makes it
highly probable that attempts at organization would be reported to
Rodgers. These factors, considered in the light of other evidence,
such as Rodgers' statement to Baxter and his conversation with Shaft
at the time of the discharge, lead us to accept Taylor's testimony as
correct. There is further testimony that Brewer, subsequent to the
discharge of Baxter, in attempting to dissuade other employees from
joining the Union, pointed to Baxter as an example of what would
happen if one did join the Union. Brewer did not deny this testimony
and we find it to be true.
The evidence shows, therefore, that Baxter, the employee most
active in organizing the Union, was discharged just as union organ-
ization was' making headway, and that Rodgers had knowledge of
these union activities. These facts, in the light of Rodgers' stated
hostility toward unions, lead us to conclude that Baxter was dis-
charged because of his union activities. The subsequent activities of
the respondent which are dealt with below tend to corroborate this
conclusion.
8 There was considerable testimony that Baxter was rarely at his machine . On cross-
examination it was developed that other employees also left their machine frequently,
and with respect to one or two , who had not been discharged , their negligence had caused
a smash-up on their machine , a mishap that had not befallen Baxter. Similarly,
although one of the types of misconduct of which Baxter was allegedly guilty was speed-
ing up his machine, Baxter had never been disciplined for such conduct, although at
least two other employees had been so disciplined.
6 John Lee , who was called to testify by the respondent, on being asked what Rodgers
had said with respect to the date on which he learned about the Union, stated: "I am
not sure about that, unless he said about Monday."
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that the respondent discriminated in the discharge of
George Baxter because of union activities, thereby discouraging mem-
bership in the Union.
C. The ousters on December 1 and 2
The discharge of Baxter precipitated considerable confusion among
his fellow employees. It caused both resentment and fear. Anger at
the discharge produced proposals for a, strike, but these suggestions
were apparently heavily outweighed by fear as to what the discharge
of Baxter portended for the other union members.
On Tuesday, November 23, John T. Rodgers spoke to the employees
in assembly, in order, according to his own testimony, to dispel the
confusion. He spoke about business conditions generally, saying
that they were bad and that orders were dropping off. He pointed out
to Ed Taylor that modern equipment in the plant had resulted in in-
creased earnings for Taylor and for other employees. He stated that
they had a perfect right to join a labor organization, but suggested
that they think it over and not do anything hastily. He then inti-
mated that his father disliked unions, and that there was a possibility
that on his return he might shut the plant down when he learned about
"this trouble." 7 This speech of Rodgers was followed the next day
by a speech by Brewer, also allegedly in an attempt to quiet the
continued unrest among the employees. Brewer, in the same vein as
the speech by Rodgers, emphasized that business was bad and com-
petition keen. He pointed out also that new equipment in the plant
had resulted in increased earnings for the employees, and told about
antiquated equipment in Philadelphia. Brewer, in his testimony,
denied, however, that he had in this speech, as testified by Taylor,
blamed the unsatisfactory conditions in Philadelphia upon the success
of union activities in that city. It is obvious, however, that Brewer's
speech had meaning for the employees only in relation to the setting
in which it was made. It came upon the heels of a period of union
organization and the discharge of the leading union member. As
such, it could be understood only as a reiteration of Rodgers' covert
threat to shut the plant down.
Concurrently with these speeches, coal and empty silk spools were
removed from the plant late at night. This added to the belief held
by many of the employees that the plant was about to shut down
because of the attempt to organize the employees into the Union.
Although the explanation given by the respondent for the removal of
4 Ed Taylor's version of this speech is considerably more damaging to the respondent.
We have set forth, however, only those portions of the speech as to which the testimony
of Rodgers and Taylor are in accord.
ASHEVILLE HOSIERY COMPANY ET AL. 1373
the coal and silk spools may be satisfactory, Rodgers admitted that
he knew of the impression it had caused among the employees,. but
despite that, did nothing to allay that impression or assure the em-
ployees that the plant was not on the point of shutting down.
The belief that the plant was about to close was followed by the
desertion of the Union by many of its members and their organiza-
tion into an anti-union faction. These men became convinced that
unless all union activity was stopped the plant would close and they
would lose their jobs. They resolved, therefore, to oust the more mili-
tant union members from the plant and to circulate a petition which
would assure Rodgers that the employees were opposed to the Union.
These plans were then put into effect. A petition declaring the
intention of the signatories not to work with any member of the
C. I. 0.8 was circulated in a manner which, on the testimony in the
record, can only be characterized as mysterious. And on December 1,
led by Howard Ledford, who worked in the boarding department, the
anti-union faction drove Lloyd Brookshire, Wayne Jones, Charles
Lissenbee, F. A. Silvers, Ed Taylor, Jack Pinkston, Clyde Shaft, and
Clifton Nuckels from the plant. Brewer was present while this was
going on, but made no move to prevent the occurrence or warn the
attacking group of the consequences of their conduct. Indeed, no
disciplinary action was ever taken either then or thereafter against
any of the employees who participated.
This was followed on December 2 by the ejection from the looping
and seaming room of Maude King, Bonnie Silvers, and Lucy Silvers
by the women in that room. John Lee, watchman for the respond-
ent, witnessed and to some extent participated in this event. The
leaders in this action stated that they had determined upon this
course in emulation of the action of the men the preceding day.
Thereafter, the ousted employees called upon Rodgers in groups
and asked him to guarantee them protection so that they could
return to work. Rodgers replied that that was more than he could
possibly do, but that he would speak to the men and endeavor to
persuade them to permit the union employees to return. An attempt
by one of the latter to return at this time proved unsuccessful, as
he was barred from his machine by the anti-union faction. On
December 7 Rodgers addressed the employees in the plant and asked
them to be lenient with the union employees since it was so close to
Christmas. In the course of his address he praised the employees
for the fine spirit of loyalty they had shown to him but asked them
8 The heading on the petition reads as follows : "IVe, the undersigned, do hereby agree,
not to work with any member of the C. I. 0. or any outside organization and will stick
together in keeping same out of the Asheville Hosiery Co."
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to relent in their attitude toward the union members. The ousted
employees thereafter returned to work between December 8 and 13.9
D. The exclusion on December 09
The return to work, however, did not mark a cessation of the
hostility and tension in the plant, nor a termination of efforts by the
more militant union members to organize the plant. The union
members were ostracized to a point where the other employees in the
mill, in violation of a company regulation, refused to assist them in
their work. This tension led to one or two minor altercations in
which Ed Taylor, the most militant of the union members, figured
prominently. Taylor was threatened with bodily harm on a number
of occasions and for self-protection he acquired a small tear-gas
pencil and carried it with him on his person.
On December 29 he came to work with this pencil on his person.
Its presence was noticed by one of the employees and reported to
the foreman and to many of the other employees in the plant.
Taylor was ordered by John Rodgers to leave the pencil outside the
plant, and he complied with this order. At the end of the day's
work he left with Jack Pinkston, F. A. Silvers, and Howard Jarrett.
They were seated in Howard Jarrett's car about to drive home when
a number of the men from the plant came up and surrounded the
car. There were many threats to drag them from the car and beat
them up, and apparently violence was averted only by the intercession
of Bonnie Silvers. The four men were permitted to go home but
were threatened with violence if they returned to work. Although
Brewer, who was present at the time of the incident, denied that he
had noticed anything more than a group of men going home at closing
time, Rodgers testified that Brewer informed him of the incident.
We find that Brewer had knowledge of the event and informed
Rodgers thereof.
The four men did not return to work but a few days later came
to the office for their pay. Rodgers asked them if they had quit and
they replied "no" and left. Rodgers did not ask further after them
but left their places open for a week or so and then filled them with
other employees.
E. Conclusions with respect to the oustinags and excZv,sion
The respondent contends that it took no part in the oustings and
exclusion and that these actions were entirely those of its employees,
who were infuriated by the tactics and threats of the union members.
8 Lloyd Brookshire , Fulton Silvers , Jack Pinkston , Ed Taylor , Clifton Nuckels, Wayne
Jones, and Charles Lissenbee returned to work on December 8. Clyde Shaft returned on
December 9, Bonnie and Lucy Silvers returned to work on December 10, and Maude King
on December 13.
ASHEVILLE HOSIERY COMPANY ET AL. 1375
It contends further that, when the four excluded employees failed to
return to work after the incident of December 29, they never reported
the incident or their reasons for leaving, and thus left the employ of
the respondent of their own volition. These contentions, however,
are not borne out by the evidence.
We have found that the discharge of Baxter was due to his union
activities and was intended to discourage membership in the Union.
This action, followed by the speeches by Rodgers and Brewer, had
the desired effect. Together, they caused the desertion of the Union
by many of its members, the circulation of an anti-union petition, and
the ousting of the more active union members. Rodgers created among
the employees the impression that the plant would close down if the
Union were successful in organizing the employees in the plant.
'Knowing that this impression prevailed, he did nothing to attempt to
dispel it. It is clear, therefore, that he wished it to be spread and to
be the guiding impulse in the actions of the employees.
The testimony by the anti-union employees as to their reasons for
ousting union members cannot be given credence. They testified that
threats had been made that if the Union organized the plant it would
cause the expulsion of all non-union men. They therefore .left the
Union, although membership would apparently have guaranteed them
protection in the event of its successful organization, and decided to
get rid of the union men, although it was clear that so long as the
union men were in the minority they could not have succeeded in bring-
ing about expulsion of the non-union men. A number of the employees
who had participated in the ousting, had not only been members of
the Union, but had been active in the solicitation of others. In the
course of this solicitation, they had apparently made the statements
which were the purported reasons for their own leaving the Union.
This confusing and illogical explanation for the oustings of December
1 and 2, which the respondent proffered in its brief, is obviously in-
valid. We find that the motivation for the ousters was in fact the
speeches and actions of the respondent, which created the belief among
the employees that the plant would be closed unless union activity were .
stopped.
Nor was the situation remedied after the men returned to work on
December 8 and 9. The-atmosphere of tension and hostility which the
respondent had created still prevailed. The actions of the ousting
group had not been censured, but instead had been greeted by Rodgers
with approval and commendation, thus encouraging their repetition io
io In his appeal of December 7, urging the employees to permit the ousted employees
to return to work, Rodgers had concluded as follows : "I want to thank you for the fine
spirit of loyalty which you have shown , and I hope that I will conduct myself to always
warrant this friendly feeling and loyalty that you have shown for me and if at any time
I can be of any service to you , I hope that you will not hesitate to call upon me,"
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover, nothing had been done or said to refute the prevailing im-
pression that union organization would result in the closing of the
plant. Continued union activity on the part of the remaining union
members therefore still constituted a threat to the livelihood of all the
employees. Possession of a tear-gas pencil by Taylor was, thus, the
occasion for, rather than the cause of the incident of December 29.
Taylor at no time used or threatened to use the pencil against any of
the employees, and, indeed, it was as they were leaving the plant and
at a time when no threat of any kind was being made against the non-
union men that the four union men were accosted. We find that it
was the actions of the respondent in creating this anti-union sentiment,
and in encouraging violence against union members, that was the cause
of the exclusion on December 29.
The respondent must be held responsible as having, by its actions
and words, caused the union employees to be ousted on December 1
and 2 and excluded on December 29.11
After these events the resultant loss of employment and termina-
tion of employment were due to the respondent's failure to guaran-
tee protection. In the interval between the oustings on December 1
and 2 and the date of their return to work, the ousted employees
were told by Rodgers to stay away until it would be safe to return.
None of the employees who had participated in the ejection of the
union members were disciplined or even told that their conduct was
looked upon with disfavor by the respondent. Rodgers testified
that he never learned who the ringleaders were, but this statement
cannot be believed in view of the overwhelming evidence that every-
one, including Brewer, knew Howard Ledford to have led the oust-
ing. Indeed, as we have pointed out above, Rodgers not only did
not discipline the men, but instead praised their conduct as a demon-
stration of "loyalty," thus encouraging its repetition.
After the exclusion of December 29, the men were justified in not
returning to work. Rodgers had once refused to grant them pro-
tection at their work, and certainly men are not required to work
in fear of bodily harm. It is indeed the duty of an employer to-
guarantee to his employees safety while at work in his plant. The
duty to show impartiality as between rival labor organizations obvi-
ously does not authorize an employer to permit, in his plant, the
assaulting of one group by another.
71 Compare the language of the Circuit Court of Appeals in Clover Fork Coal Company
v. National Labor Relations Board, 97 F. (2d) 331, enforcing an order of this Board
issued in 4 N. L It. B. 202 , in which the court said : "The contention, that employees
were not discharged because of union activities by the petitioner but were forced out by
the determined attitude of petitioner 's non-union men in refusing to work with members
of the United Mine Workers , must be rejected in view of evidence which supports findings
that the attitude of the petitioner ' s non -union men was if not inspired by , at least
encouraged and promoted by the petitioner and its agents."
ASHEVILLE HOSIERY COMPANY ET AL. 1377
In Matter of General Shoe Corporation and Georgia Federat ion of
Labor, 12 involving a similar situation, we said :
The respondent here owned the plant, exercised exclusive
control over it and exclusive authority over its employees and
the conditions under which they worked. It had the
correlative and affirmative duty to protect its employees dur-
ing working hours and to maintain safe working conditions for
them. Instead of fulfilling the obligation which every em-
ployer owes to his employees, instead of exercising the author-
ity, inherent in its position, to protect them from assaults, it
stood by idly and indifferently surrendering complete control
to a group who proceeded to carry out the respondent' s desires.
Viewed in the light of the events that occurred, the respondent's
conduct amounted to a delegation of authority which it knew
and expected would be invoked and unlawfully exercised at the
expense of union employees.
In the absence of such a guarantee of protection employees are
justified in not returning to work without being considered to have
left the employment of the respondent upon their own volition.
Failure to grant protection, at least to the extent that it is within
the employer's power to do so , amounts to a discrimination in regard
to a term or condition of employment within the meaning of the
Act. That the excluded employees did not, after December 29, once
again explicitly request of Rodgers that he grant them protection
is immaterial in view of Rodgers' admitted knowledge of the inci-
dent, and his failure on the basis of such knowledge to get in touch
with the men and assure them that they could return to work in
safety. Since Rodgers had not only once denied them protection
but had, as we have pointed out above, praised the conduct of the
ousting employees, describing such conduct as an expression of loy-
alty to himself,13 a further request for protection would undoubtedly
have been futile.
We find that the actions of the respondent were the direct cause
of the ousting of Lloyd Brookshire, F. A. Silvers, Jack Pinkston,
Ed Taylor, Clyde Shaft, and Clifton Nuckels on December 1, and
of Maude King, Bonnie Silvers, and Lucy Silvers on December 2,
and the exclusion of F. A. Silvers, Jack Pinkston, Ed Taylor, and
Howard Jarrett on December 29. We find, further, that by its
subsequent failure to grant protection, causing loss of employment
to the ousted employees, and on the occasion of December 29, the
termination of the employment of F. A. Silvers, Jack Pinkston,
32 5 N. L. R B. 1005, order modified and, as modified, enforced in National Labor
Relations Board v. General Shoe Corp., 99 F. (2d) 223 (C. C. A. 5th, 1938).
is See footnote 10, supra.
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ed Taylor, and Howard Jarrett, the respondent has discriminated
in regard to a term and condition of their employment and has
thereby discouraged membership in the Union.
We find that the respondent, by stating and intimating to its
employees that in the event of the organization of its plant by
the Union it would shut down its plant and cease operations, inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed by Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom.
Since we have found that the respondent by its discriminatory
acts has brought about the termination of the employment of George
Baxter, F. A. Silvers, Jack Pinkston, Ed Taylor, and Howard Jar-
rett, we shall order the respondent to offer to these employees full
reinstatement to their former or substantially equivalent positions,
and to make each of them whole for any loss he may have suffered
by reason of such discrimination, by payment to each of them of
a sum equal to the amount which he normally would have earned
as wages from the date of the termination of his employment to the
date of the offer of reinstatement less his net earnings 14 during
said period. We shall also order the respondent to make whole
Lloyd Brookshire, F. A. Silvers, Jack Pinkston, Ed Taylor, Clyde
Shaft, Clifton Nuckels, Maude King, Bonnie Silvers, and Lucy
Silvers for their loss of employment from December 1 and 2 to the
date of their return to work on or about December _8. We will
14 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for the unlawful
termination of his employment and the consequent necessity of seeking employment else-
where. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters
and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. It. B.
440. Monies received for work performed upon Federal, State, county , municipal, or
other work-relief projects are not considered as earnings , but, as provided below in the
Order, shall be deducted from the sum due the employee , and the amount thereof shall
be paid over to the appropriate fiscal agency of the Federal , State, county , municipal,
or other , government or governments which supplied the funds for said work-relief
projects.
ASHEVILLE HOSIERY COMPANY ET AL. 1379
require the respondent to provide for the reinstated employees ade-
quate protection from violence or molestation by other employees
during working hours.
Since the acts of the respondent which caused the ousting and
exclusion of union employees were the threats and intimations by the
respondent that the plant would close down if the Union were or-
ganized, we shall order the respondent to state to its employees that
it does not intend closing the plant in the event of the successful
organization of the plant by the Union. We shall order further that
the respondent instruct all of its employees that physical assaults
upon fellow employees for the purpose of discouraging union mem-
bership or activity will not be permitted in the plant, and that it take
effective action to enforce these instructions.
Upon the basis of the foregoing findings of fact and upon the entire
record in the proceedings, the Board makes the following :
CONCLUSIONS OF LAW
1. American Federation of Hosiery Workers is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of George Baxter and thereby discouraging membership in
American Federation of Hosiery Workers, the respondent has en-
gaged in and is engaging in unfair labor practices within the meaning
of Section 8 (3) of the Act.
3. By its conduct in causing employees to oust and exclude from
the plant Lloyd Brookshire, F. A. Silvers, Jack Pinkston, Ed Taylor,
Clyde Shaft, Clifton Nuckels, Maude King, Bonnie Silvers, Lucy
Silvers, and Howard Jarrett, the respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section
8 (1) of the Act.
4. By its refusal to offer unconditional reinstatement and guaran-
tee protection to Lloyd Brookshire, F. A. Silvers, Jack Pinkston, Ed
Taylor, Clyde Shaft, Clifton Nuckels, Maude King, Bonnie Silvers,
Lucy Silvers, and Howard Jarrett, the respondent has discriminated
in regard to a term or condition of their employment, thereby dis-
couraging membership in American Federation of Hosiery Workers,
and has thereby engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (3) of the Act.
5. By stating and intimating to its employees that, in the event of
the organization of its plant by American Federation of Hosiery
Workers, it would shut down such plant and cease operations, the
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. By interfering with, restraining, and coercing its employees in
the exercise of their rights guaranteed by Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the re-
spondent, Asheville Hosiery Company, Asheville, North Carolina,
and its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in American Federation of Hosiery
Workers or any other labor organization of its employees by dis-
charging or refusing to reemploy any of its employees, or denying
them protection at their work, or in any other manner discriminating
in regard to their hire or tenure of employment, or any term or con-
dition of their employment;
(b) Expressly or by conduct stating or intimating to its employees
that in the event of the organization of its plant by American Fed-
eration of Hosiery Workers or any other labor organization it will
shut down such plant and cease operations;
(c) Permitting physical assaults on and threats of physical
violence to employees in its plant for the purpose of discouraging
membership in, or activities on behalf of, American Federation of
Hosiery Workers, or any other labor organization;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise - of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid and protection as guaranteed in Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to George Baxter, Ed Taylor, Jack Pinkston, F. A.
Silvers, and Howard Jarrett, immediate and full reinstatement to
the positions formerly held by them, or positions substantially
equivalent thereto, without prejudice to their seniority or other rights
and privileges, and insure them full and adequate protection while
they are in the employ of respondent;
ASHEVILLE HOSIERY COMPANY ET AL. 1381
(b) Make whole George Baxter, Ed Taylor, Jack Pinkston, F. A.
Silvers, and Howard Jarrett for any loss of pay they may have
suffered by reason of the respondent's acts by payment to each of
them of a sum of money equal to that which he would normally have
earned as wages during the period from the date of the termination
of his employment to the date of the respondent's offer of reinstate-
ment, less his net earnings during that period, deducting, however,
from the amount otherwise due to each of said employees, monies
received by said employee during said period for work performed
upon Federal, State, county, municipal, or other work-relief projects,
and pay over the amount, so deducted, to the appropriate fiscal
agency of the Federal, State, county, municipal, or other government
or governments which supplied the funds for said work-relief
projects;
(c) Make whole Lloyd Brookshire, F. A. Silvers, Ed Taylor, Jack
Pinkston, Clyde Shaft, Clifton Nuckels, Maude King, Bonnie Silvers,
and Lucy Silvers for any loss of pay they may have suffered by
reason of the respondent's acts by payment to each of them of a sum
of money equal to that which each would normally have earned as
wages during the period from the date of their expulsion from the
plant on or about December 1, 1937, to the date of their return to
work on or about December 8, 1937;
(d) Instruct its employees that the successful or attempted organi-
zation of the plant by American Federation of Hosiery Workers or
any other labor organization will not lead to the closing of the plant
by the respondent;
(e) Instruct all its employees that physical assaults on and threats
of physical violence to their fellow employees for the purpose of
discouraging membership in, or activities on behalf of, American
Federation of Hosiery Workers, or any other labor organization,
will not be permitted in the plant at any time-; and take effective
action to enforce these instructions;
(f) Post immediately in conspicuous places throughout its plant,
and maintain for a period of at least sixty (60) consecutive days
notices stating that the respondent will cease and desist as aforesaid,
and stating further the content of 2 (d) and 2 (e), above;
(g) Notify the Regional Director for the Fifth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
164275-39-vol. xi-88