Cherokee Hosiery Mills

National Labor Relations Board - Board Decisions

Mar 2, 1951

93 N.L.R.B. 590 (N.L.R.B. 1951)

590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant maintenance departments, the Employer normally adheres to
craft lines in work assignments, and that any crossing of craft lines in
the repair gangs is occasional and due to the exigencies of the job
rather than to a disregard of the functions of the various crafts.
Under these circumstances, we believe that the employees sought by
the Petitioner constitute a traditional craft group and, notwithstand-
ing the integration of the Employer's processes, they may, if they so
desire, constitute a separate appropriate unit.
There remains for determination the unit position of the crane
operators and the riggers whom the Petitioner seeks to include in
the unit. The two crane operators in the machine shop work ex-
clusively in that shop, are under the supervision of the machine
shop foreman, and, on occasion, work on the machine shop floor as
helpers. We shall therefore include the crane operators in the ma-
chine shop in the unit with the machinists. However, the riggers
sought by the Petitioner work in a separate department, under sep-
arate supervision, and perform tasks separate and distinct from those
performed by the employees we have included in the unit. We shall
therefore exclude the riggers from the unit.
In view of the foregoing determinations, we shall direct an elec-
tion among all machinists, tool and die makers, cranemen within the
machine shop, their helpers and apprentices at the Employer's San
Francisco, California, shipyard, excluding riggers, all other em-
ployees, watchmen and guards, office and clerical employees, and all
supervisors? If a majority of these employees vote for the Petitioner,
they will be taken to have indicated their desire to constitute a sep-
arate bargaining unit.
[Text of Direction of Election omitted from publication in this
volume.]
, We shall exclude , as supervisors the leadermen , as the record shows that, although
slightly less than 50 percent of their time is spent in manual labor with the tools of their
trade, they responsibly direct the work of their subordinates and have the authority
effectively to make recommendations with respect to promotions , discipline, or discharge.
See Welding Chip yards , Inc., 81 NLRB 936, 940.
HENRY MAYER , AN INDIVIDUAL , D/B/A CHEROKEE HOISERY MILLS
and AMERICAN FEDERATION OF HOSIERY WORKERS . Case No. 10-CA-
897. March 2,1951
Decision and Order
On November 20, 1950, Trial Examiner Bertram G. Eadie issued
his Intermediate Report in the above-entitled proceeding, finding
that Respondent had engaged in and was engaging in certain unfair
93 NLRB No. 81.
CHEROKEE HOSIERY MILLS 591 .
labor practices and recommending that he cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, Respondent filed
exceptions to the Intermediate Report.
The Board I has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions, and the entire record in the case, and here-
by adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the corrections and additions noted below 2
We agree with the Trial Examiner's conclusion that Respondent
interfered with, restrained, and coerced his employees in violation
of Section 8 (a) (1) of the Act, independently of the other unfair
labor practices found. The evidence upon which we rely in mak-
ing this finding is limited to the following incidents : (1) Henry
Mayer's statement to Ingram on October 26, 1949, that if the em-
ployees were engaged in union activity, it could not be done, followed
by the remark, "I won't operate under a union"; (2) Mayer's state-
ment to Gray 3 days later that he would not operate a union plant
and that he would move his machines out first; and (3) Robert Noell's
successful solicitation, sometime between November 8 and 13, 1949,
of Black and at least three other employees to sign a letter, which
Noell had prepared, repudiating the Union; and Noell's request to
Black that the latter help him get some of the employees together for
the purpose of signing this letter.3
Mayer's two statements were clear threats of economic retaliation'
As the Trial Examiner found, moreover, Noell's activities were
plainly illegal under established Board precedent.r, Respondent's
responsibility for Noell's actions is shown, not only by the fact that
Noell served as Respondent's representative at the October 31, 1949,
bargaining conference with the Union, but also by the fact that Noell's
plans to induce employees to sign and swear to some such letter were
discussed with Respondent in advance.6
' Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated Its
powers In connection with this case to a three -member panel [Chairman Herzog and Mem-
bers Houston and Reynolds]
2 Differing slightly from the Trial Examiner's recitals, the record shows, and we find,
that the complaint was based upon charges filed November 16, 1949, and January 27, 1950,
and that the hearing took place from August 14 to 16, 1950.
8 When received by the Board' s Regional Office on November 14, this letter bore the
signatures of seven employees.
4N. L. R B. v. Kopman- Woracek Shoe Company, 158 F. 2d 103 (C. A 8), enforcing
66 NLRB 789.
5 N. L R B. v Vail Manufacturing Co., 158 F. 2d 664, 665 (C. A. 7), enforcing 61 NLRB
181, certiorari denied 311 U S. 835; N. L. R B. v. Gate City Cotton Mills, 167 F. 2d 647
( C. A. 5), enforcing 70 NLRB 238.
'6 International Association of Machinists v. N. L. R B, 311 U S 72, enforcing 8
NLRB 621; International Longshoremen 's and Warehousemen's Union (Petaluma), 79
NLRB 1487, 1507.
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Refusal to Bargain
At its first bargaining conference with Respondent on October 28,
1949, the Union proved its majority representative status to Respond-
ent's satisfaction. But both this conference and the subsequent one
on October 31 were entirely fruitless. As set forth in the Intermedi-
ate Report, Respondent first characterized the Union's requests as
reasonable, then shifted completely and took an adamant position,
unqualifiedly rejecting every demand. On the morning of October
31, when the Union asked that negotiations be resumed later the same
clay, Respondent refused on the ground that he needed the advice of
his bookkeeper, who was absent from the city. Thereupon the Union
struck the plant.
On November 5, 1949, with the strike continuing, the Union again
requested Respondent to agree to a bargaining conference and to set
a date. Respondent refused, and gave no reason. At the Union's
request the parties did meet again, on November 21; and a final meet-
ing was held on November 25. On both occasions the Union again
attempted to negotiate with Respondent and to settle the strike, but
Respondent both times made it clear to the Union's representatives
that he challenged the Union's majority and no longer recognized
the Union as the bargaining agent of his employees. Although
Respondent and his representatives discussed the Union's demands,
they repeatedly injected direct reminders to the Union that Respond-
ent was not to be understood as receding from his fixed refusal to ac-
cord recognition and that no amount of talking could lead anywhere.
Whatever Respondent's attitude may have been before November
5, 1949, toward his employees' attempt to exercise their statutory right
to bargain collectively, we are satisfied that by that date he was de-
termined to frustrate them in that attempt. His earlier illegal
threats to close or remove the plant if they persisted in their con-
certed activity very strongly points to such an explanation of his
November 5 refusal to meet with the Union's representatives. More-
over, the manner in which Respondent several days later (through his
agent Noell) unlawfully contrived to bring about substantial defec-
tions from the Union makes his bad faith in his dealing with the
Union abundantly clear. Having himself caused a number of em-
ployees to repudiate the Union, Respondent could hardly defend his
admitted refusal to bargain afterward on the ground that the Union
lacked a majority.7 Rather, it appears that the refusal to agree to
another conference on November 5 was for the very purpose of gain-
ing time in which to undermine the Union's majority.
We find no merit in Respondent's contention that the letter signed
by 7 employees and dated November 3, 1949, precludes any finding
7 Franks Brothers Company v N. L. R. B ., 321 U. S. 702, enforcing 44 NLRB 898.
A
CHEROKEE HOSIERY MILLS 593
that the Union afterward represented a majority of the approximate-
ly 11 employees in the bargaining unit. As the letter on its face pur-
ports to repudiate only the strike, it is not inconsistent with a desire
to continue in effect the union-authorization cards signed shortly
before." We also note that the record does not definitely show wheth-
er this letter was signed before or after November 5, when Respondent
refused to bargain. The date borne by the letter itself is not con-
clusive on this point; for no convincing explanation was offered by
Respondent as to why employees desiring to abandon a strike on No-
vember 3 should ask that their return to work begin 11 days later.
In view of the foregoing facts, and on the record as a whole, we are
persuaded, as was the Trial Examiner, that Respondent failed in his
legal obligation to bargain with the Union in good faith. Accord-
ingly, we find that on and after November 5, 1949, Respondent re-
fused to bargain with the Union in violation of Section 8 (a) (5) of
the Act. 9
The Remedy
This refusal to bargain, when viewed in connection with Respond-
ent's threats of economic retaliation and his unlawful conduct in
presenting to his employees for signature a document repudiating the
Union, convinces us that Respondent's attitude is one of general resist-
ence to the purposes of the Act. In order to effectuate those purposes,
therefore, we believe it necessary that Respondent be generally ordered
to cease and desist from in any manner infringing upon the rights
guaranteed in Section 7 of the Act.
Order
Upon the basis of the above findings of fact and the entire record
in the case, and pursuant to Section 10 (c) of the National Labor
Relations Act, as amended, the National Labor Relations Board here-
by orders that Respondent, Henry G. Mayer, an individual, d/b/a
Cherokee Hosiery Mills, Athens, Georgia, his officers, agents, succes-
sors, and assigns, shall :
1. Cease and desist from :
(a) Threatening his employees with economic reprisals for their
union activities or attitude, helping to prepare forms evidencing their
8 Stewart Die Casting Corp. v. N L. R B , 114 F. 2d 849, 854 (C A. 7), enforcing 14
NLRB 872, certiorari denied 312 U S 680 "It is argued that this in itself [the fact that
195 striking employees had returned to work] is an indication that they were not members
of the Union . . . We think there is no merit in such contention. The fact that
they returned to work proves nothing concerning their Union membership, or the authority
of the Union to act as then bargaining agent "
° In this we do not go as far as did the Trial Examiner, who found a refusal to bargain
on October 31, 1949, and thereafter
943732-51-39
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
withdrawal from American Federation of Hosiery Workers or aliy
other labor organization, and inducing them to sign such forms.
(b) Refusing to bargain collectively with American Federation of
Hosiery Workers as the exclusive bargaining representative of all
the employees in his Athens, Georgia, plant, excluding office and
clerical employees and supervisors as defined in the Act.
(c) In any other manner interfering with, restraining, or coercing
his employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist American Federation of
Hosiery Workers, 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 other mutual aid or protection, or to refrain from any or all of
such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3) of the
Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with American Federation
of Hosiery Workers as the exclusive representative of. all employees
in his Athens, Georgia, plant, excluding office and clerical employees
and supervisors as defined in the Act, with respect to rates of pay,
wages, hours of employment, and other conditions of employment,
and, if an understanding is reached, embody such understanding in
a signed agreement.10
(b) Post at his plant at Athens, Georgia, copies of the notice at-
tached hereto and marked "Appendix A." 11 Copies of said notice, to
be furnished by the Regional Director for the Tenth Region, shall,
after being duly signed by Respondent, be posted by Respondent im-
mediately upon receipt thereof and maintained by it for at least sixty
(60) consecutive days thereafter in conspicuous places, including
all places where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Tenth Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
"The Trial Examiner found the appropriate unit to consist of 12 employees, including
Respondent's wife However, because she is a supervisor (as Respondent himself con-
firmed) and because of her close relationship with Respondent, she is excluded from the
unit Stanislaus Implement d Hardware Company, Limited, 92 NLRB 897; Barber
Buick Company, 90 NLRB No. 219
11 In the event this Order is enforced by decree of a United States Court of Appeals, there
shall be inserted before the words, "A Decision and Order," the words, "A Decree of the
United States Court of Appeals Enforcing."
CHEROKEE HOSIERY MILLS
Appendix A
NOTICE TO ALL EMPLOYEES
595
Pursuant to a Decision and Order of the National Labor Relations
Board and in.order to effectuate the policies of the National Labor
Relations Act, I hereby notify my employees that : .
I WILL NOT threaten my employees with economic reprisals be-
cause of their union activities or attitude, help to prepare forms
evidencing their withdrawal from membership in AMERICAN
FEDERATION OF HOSIERY WORKERS or any other labor organization,
induce them to sign such forms, or in any other manner interfere
with, restrain, or coerce them in the exercise of their right to
self-organization, to form labor organizations, to join or assist
AMERICAN FEDERATION OF HOSIERY WORKERS, or any other labor
organization, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection,
or to refrain from any or all of such activities, except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) '(3) of the Act.
I WILL bargain collectively upon request with AMERICAN FED-
ERATION of HOSIERY WORKERS as the exclusive representative of
all my employees in the bargaining unit described below, with
respect to rates of pay, wages, hours of employment, and other
conditions of employment, and, if an understanding is reached,
I will embody such an understanding in a signed agreement. The
bargaining unit is:
All employees in my Athens, Georgia, plant, excluding
office and clerical employees and supervisors as defined in
the Act.
HENRY G. MAYER, D/B/A, CHEROKEE HOSIERY MILLS,
Employer.
By ------------------------------
Dated -------------------- ( Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report
Clarence D. Musser, Esq., for the General Counsel.
John Wesley Weeks, Esq., Decatur, Ga., Albit Nix, Esq., and Howell Erwin,
Jr., Esq., Athens, Ga., for the Respondent.
G
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
STATEMENT OP THE CASE
Upon a charge dated January 25, 1950, filed by American Federation of
Ho: !cry Workers, herein called the Union, the General Counsel of the National
Labor Relations Board, respectively called herein the General Counsel and the
hoard, by the Regional Director for the Tenth Region (Atlanta,. Georgia), issued
a complaint dated June 13, 1950, against Henry G Mayer, an individual, d/b/a
Cherokee Hosiery Mills, herein called the Respondent, alleging that Respondent
had engaged in and was engaging in unfair labor practices within the meaning
of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the National Labor
Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the
complaint, charge, and notice of hearing were duly served upon all the parties.
With respect to the unfair labor practices, the complaint alleges, in sub-
stance, that the Respondent: (1) Since on or about October 28, 1949, and at all
times thereafter has failed and refused, and does now fail and refuse to recog-
nize the Union, although duly designated for the purposes of collective bargaining
by a majority of the employees, as the exclusive representative of said employees,
and to bargain collectively with the Union, as the exclusive representative of
said employees at its plant at Athens, Georgia, exclusive of office clerical em-
ployees, watchmen and guards, professional employees, and supervisors, as
defined in the Act, and that said employees constitute a unit appropriate for
the purpose of collective bargaining within the meaning of Section 9 (a) of the
Act ; (2) that Respondent by its partners, agents, representatives, and employees,
spice on or about October 20, 1949, has committed, authorized, instigated, and
acquiesced in the following acts, to wit :
(a) Interrogated its employees concerning their union affiliation and
activities ;
(b) Statements and conversations of a coercive and intimidatory nature dis-
couraging activities on the part of its employees for the purposes of collective
b.u gaining and other mutual aid and protection and discouraging membership
.and activities among their employees in the Union ;
(c) Urged and warned its employees to refrain from assisting, becoming mem-
bers, or remaining members of the Union, under threats and penalty of discharge ;
(d) Threats to close plant if the Union came in; and
(e) Solicited withdrawals from the Union.
By such acts and by each of said acts, Respondent did interfere with, restrain,
and coerce, and is interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act and did thereby
engage in and is thereby engaging in unfair labor practices within the meaning
of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the Act.
The answer of Respondent, which was duly filed June 19, 1950, admitted the
jurisdictional facts concerning interstate commerce, and Respondent's refusal
to bargain collectively with the Union. It denies that the Union was the
representative of Respondent's employees, and it also denied the alleged unfair
labor practices.
` Pursuant to notice, a hearing was held on August 14, 1950, at Athens, Georgia,
before the undersigned Trial Examiner duly designated by the Chief Trial
Examiner. The General Counsel and the Respondent were represented by coun-
sel and participated at the hearing. All parties were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to produce evidence
bearing upon the issues. The General Counsel presented oral argument in sup-
port of his contentions?
1 See pages 334-347 of the record.
CHEROKEE HOSIERY MILLS 597
The counsel for Respondent has filed a brief with the Trial Examiner At the
close of General Counsel's case the Respondent rested.
Upon the entire record in the case and from his observation of the witnesses,
the Trial Examiner makes the following : 2
. FIYDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is an individual, trading and doing business under the firm
name and style of Cherokee Hosiery Mills. He operates a plant at Athens,
Georgia, employing 12 employees inclusive of Mrs. Erika Mayer, his wife, in
the manufacture of full-fashioned nylon hosiery for women. Respondent has
2 knitting machines and purchases upward of $10,000 a year, approximately
90 percent of which is purchased and shipped, in raw materials including nylon
yarns, oil, solutions, needles, and repair parts, from without the State of
Georgia. The unfinished hosiery designated as gray stock is shipped to Union,
South Carolina, to be dyed and finished and then reshipped from there as full-
fashioned nylon hosiery to 2 customers with places of business at Lansdale,
Pennsylvania, and Paterson, New Jersey. The total sales amount somewhat in
excess of $25,000. Respondent admits in his answer that he is engaged in
interstate commerce and conceded at the hearing that he is subject to the pro-
visions of the Act.
The Trial Examiner finds that the Respondent is engaged in commerce within
the meaning of the Act.
II. THE ORGANIZATION INVOLVED
American Federation of Hosiery Workers is a labor organization within the
meaning of Section 2 (5) of the Acts
III. THE UNFAIR LABOR PRACTICES
A. Surrounding facts and circumstances
There is little if any dispute between the parties as to the material facts on
which General Counsel relies to establish a prima facie case against the Re-
spondent. Respondent was called as a witness on behalf of the General
Counsel. No other witness was called by Respondent. His testimony in no
wise contradicts the material facts testified to by the General Counsel's wit-
nesses.
The Respondent, the owner and operator of a small plant at Athens, Georgia,
was engaged in the manufacture of nylon hose, operating 2 knitting machines
2 In making the findings herein, the Trial Examiner has considered and weighed the
entire evidence and the brief presented. It would needlessly burden this Report to evaluate
all the testimony. Any such testimony or other evidence which is in conflict with the
findings herein is not credited.
8 Respondent neither admits nor denies paragraph V of the complaint, alleging that
American Federation of Hosiery Workers is a labor organization within the meaning of
Section 2 (5) of the Act. The whole record develops the essential and material facts to
make the above finding: (a) Representatives of the Union negotiated with Respondent
without challenge on his part to any such objection, (b) General Counsel's Exhibits 6, 7,
8, 9, 11, 12, 13, 14, 15, 16, and 17, which are printed articles of agreement between Rodgers
Hosiery Co., Inc , Athens, Georgia, and American Federation of Hosiery Workers, together
with the union cards signed by the several employees and exhibited to Respondent for his.
examination. The Trial Examiner finds that there is substantial evidence supporting the
above finding of fact.
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on a 24-hour basis, employing 11 operators besides his wife. The hose, when
knitted, were shipped to South Carolina for further processing and then were
reshipped to Pennsylvania and New Jersey. The knitters were paid on a piece-
work basis which included the amount they paid to their helpers on an hourly
basis. Respondent's wife was paid at a regular wage of $50 per week.
On or about October 22, 1949, employee Gray met Roberts, national repre-
sentative of the Union, and suggested to him that the Union organize the
employees of Respondent. Roberts had known Gray for quith some time. He
told Roberts he had looked for him and wanted to talk to him. He told Roberts
that the employees of Respondent had tried to have a conference with Mr.
Mayer out at the mill that morning to talk over some of the conditions of em-
ployment that Mayer had promised to correct. Mayer did not appear at the
meeting and Gray 'wanted to know what could be done by the employees to
permit them to become members of the Union.
Roberts told Gray that he would investigate over the week end and give an
answer before he left town.
Roberts then contacted Benton, an officer at that time in Branch 176 of the
Union, at Rodgers Hosiery Mill. He told him of the situation existing at Re-
spondent's plant and asked him to go with him and see some of the employees who
worked for Respondent and see if they were really interested in the Union. They
visted employees Green, Lanier, and Ingram on Sunday, October 23. As a re-
sult of Roberts' investigation, he left union cards with Benton and told him
to see what he could do about having them signed by the employees of the Re-
spondent, as he had to leave the following day to go to his office at Athens,
Tennessee. Roberts returned to Athens, Georgia, on October 28, and a meeting
was arranged with Mayer by phone to take place at Mayer's office at 2 p. m. that
day. Those present and taking part at the conference were Mayer, his wife,
Benton, and Roberts. The union designation cards which were signed by nine
employees were handed by Roberts to Mayer. Concerning this meeting Roberts
was questioned and credibly testified as follows:
A. He looked at the cards, he looked at every one of them, looked at all of
the signatures, and he took Mary Aaron's out.
Q. Yes?
A. He said I recognize all the cards signatures of my employees. He said
Mary Aaron has put in her notice to quit. I said, "As of now she is still on
your payroll, isn't she?" He said "Yes." Mrs. Mayer thought at that time
the one I didn't have was her, which wasn't. It was Bonnie Sue Green.
Q. Did Mrs. Mayer have anything to say?
A. I told her I had all but one. She said, "I guess that is me." I said,
"No, that is not you. It is Bonnie Sue Green."
Q. Did she say anything more to Mr. Mayer about the cards or the number
that had signed cards?
A They never said another question, they gave me the cards back.
B. The refusal to bargain collectively with the Union
1. The appropriate unit and representation of a majority therein
The complaint alleges that all employees of the Respondent at its Athens,
Georgia, plant, excluding office clerical employees, watchmen and guards, profes-
sional employees, and supervisors, as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining within the meaning of Sec-
CHEROKEE HOSIERY MILLS 599
tion 9 (a) of the Act. Pertinent to this allegation of the complaint, the Respond-
ent's answer alleges "For want of sufficient information the allegations of para
graphs 4 and 5 of said complaint are neither admitted nor denied." No evidence
was adduced at the hearing which would conflict with the unft alleged to be ap-
propriate in the complaint.
Accordingly, the Trial Examiner finds that all employees of Respondent at
his operation in Athens, Georgia, excluding supervisory employees, watchmen
and guards, as defined in the Act, and excluding all office and clerical employees,
have at all times material herein constituted and do now,constitute an appropriate
unit within the meaning of the Act, he finds that said unit will insure to the
employees of the Respondent the full benefit of their rights to self-organization
and collective bargaining, and otherwise effectuate the purposes of the Act.
The record discloses that as of October 28, 1949, there were 12 employees in
the above-described unit including the wife of Respondent. Nine of the em-
ployees designated the Union as their collective bargaining agent and thereafter
on October 31 another employee signed a union card.
Accordingly, the Trial Examiner finds that the Union on and after October 28,
1949, represented a majority of the employees in the unit described above for the
purposes of collective bargaining.
There is evidence in the case of defections from the Union after November 14,
1950, said defections were in the opinion of the Trial Examiner caused by the
unfair labor practices of the Respondent as herein found.
2. The negotiations .
On Friday, October 28 at 2 p. in. Mayer, his wife, Roberts, and Benton began
negotiations The conference lasted until 7 p. m. Respondent maintained the
position that lie was unable to make any decision to the demands made by the
union conferees, as his bookkeeper was out of town and he was unable to get
in touch with him. Roberts' testimony which the Trial Examiner credits and
which is in no wise denied or refuted, concerning the negotiations at this meet-
ing, is as follows.
Q. You just give us your version of what all was talked about in regard
to the Union and the matters in which you were interested?
A. First start talking to Mr. Mayer and he wanted to know what was
the biggest complaint of the boys I told him one of the biggest complaints
of the boys was they didn't think they got treated right and didn't think
they should have to pay the helpers and have it deducted from their pay.
Q. Pay their helpers?
A Pay their helpers.
Q. What helpers are you talking about?
A. A knitter was paid at that time 95 cents a dozen. If that 95 cents
a dozen at the end of the week was $60, then if the helper was paid 55 cents
an hour, that 55 cents an hour for 40 hours was deducted from their $60.
Q. You discussed that with Mr. Mayer?
A. Yes, sir
Q. Did you discuss other wages or rates?
A. I asked him would he mind giving me the rates on his other jobs.
Mr. Mayer said definitely no. Mr. Mayer pulled out slips on the rates of the
other jobs and gave me the rates the same as loopers and what have you,
what they were paying per dozen.
Q. Did you make a proposal, a rate schedule proposal, to Mr. Mayer?
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Roughly, after I got these figures from Mr. Mayer, dozens, and what
have you, myself and Ted Benton went outside and had a little conversa-
tion among ourselves to see what kind of approach we would reach. We
came back in and began to argue with Mr. Mayer first about the insurance
program which we have in all our union contracts paid for by the company.
We went so far as to try to prove to him on paper if he gave the people the
insurance program, why his family alone would get more benefits out of
the insurance than he could possibly buy insurance as an individual He
still said no on insurance which would be only 2 percent of the payroll.
Q All right.
A I then made him a proposal on rates, and then in our discussion he
seemed to think and so did I that if the rate structure was washed out
everything else should be reached agreement as granted in all contracts.
The money proposition seemed to be phasing him at the moment
Q. What was your proposal for knitters?
A. He was at that time paying 95 cents a dozen and the helpers' rate was
deducted from it. I made a proposal and give it to him on a yellow sheet
of paper pay the knitters 90 cents a dozen.
Q. A nickel less, ninety cents a dozen on double jobs, a dollar a dozen on
single jobs with the understanding when a knitter run a double job the com-
pany would pay the helper.
Trial Examiner EADIE What is a double job and a single job'
The WITNESS Double job is two knitting machines run by one knitter
and one helper. In other words, it eliminates one operation.
The proposal for the helpers was 75 cents an hour to begin with, after
three months 80 cents an hour. after three more months 85 cents an hour
with the understanding if a helper had had six months' training anywhere
else in the land and came to work there for him, it would be 85 cents- an
hour as of the date he started.
Q. (By Mr. Mussrs.) All right, now-
A. The loopers proposal was 10 cents a dozen seamers 25 cents a dozen.
His inspecting and mending we made a proposal of a flat 75 cents an hour.
The reason we didn't make a piece rate proposal on those two jobs there
was not enough piece work on either one of those two jobs to keep one
person busy the whole week, so we made him a flat proposal of 75 cents an
hour so he could shift that person around and do any other work he saw
fit for her to do.
Also, in this proposal was the one week's vacation with pay and the
2 percent insurance plan.
Q. All right.
A. That was handed to him on a yellow piece of paper.
Q. What did he say about it, if anything?
A. He said, "I will work with you, Roberts, your proposal is not severe.
It is very lenient." I said, "Yes, I am scared when I meet my District
Manager I am going to get my head chopped off for meeting it, too."
Q. What was your Union standard rate for knitters with reference to
this 90 cents you proposed?
Mr. WEEKS. We object to that, has no bearing on the issues.
Trial Examiner EADIE. Will you repeat the question please?
(Question read.) I will overrule the objection.
The WiTxEss. In our Union areas such jobs as in Mr. Mayer's plant the
rates range from $1.45 to $1.65 per dozen in the South.
CHEROKEE HOSIERY MILLS 601
Concerning the conferencebp,October 28, Respondent testified as follows :
A The first one was on Friday and we had talked for about four hours,
yet I could not make al decision due to the 'fact that my bookkeeper was
out of town. It happened to be that his brother died in Florida and he was
out of town that day. So, I asked Mr. Roberts if he would give me time
until Monday, hoping that Mr. Cooper would be back.
Q. Just a minute. Who is Mr. Cooper, your bookkeeper?
A. My bookkeeper, Yeah.
Q. He was your full-time bookkeeper?
A. No, No, No.
Q. Did he just keep your books on a monthly basis, coming in whenever
necessary?
A. Yeah.
Q. All right, go ahead. You told him your,bookkeeper was in Florida?
A. Yeah.
Q. Due to the death of a relative?
A. Of his brother. So I had hoped he would be back by Monday. So Mr.
Roberts said, "Well, do you think it will be all right to come back Monday?"
I said, "I believe Mr. Cooper would be back as I could not make a decision
due to the fact I did not have any books with me."
It was agreed upon the adjournment of the conference at about 7 p m. Friday,
October 29, to further meet at 9: 30 a. m. Monday, October 31. At the meeting
on October 31, the conference was continued with the addition of employees
Gray and Ingram, who took part with Roberts and Benton representing the
Union, and Noell was added to the Respondent's representatives. At this
meeting the Respondent did not raise any question as to the Union's majority.
Relative to the proceedings at the meeting held on Monday, October 31,
Roberts testified credibly and without contradiction as follows :
Q. Did Mr. Bob Noell himself ever work out there at any time you did?
A. Not to my knowledge.
Q. What, if anything, was said about his presence there at the meeting
with Mr. Mayer on the morning of October 31st?
A. I said, "Is this your bookkeeper?" He said, "I want to tell you why
I am in this ." Says, "I am purely innocent person I just went over Mr.
Mayer's books the whole weekend trying to get him some figures, and what
have you, to see what he could afford to pay, and so forth and so on."
I says, "You don't have an interest in this company?" He says, "None
whatsoever."
Q. Tell us what was said about wages, hours, and working conditions
that morning when you opened the meeting. Did you open for the Union?
A. I opened for the Union.
Q. All right.
A. I asked Mr. Mayer if he had analyzed the proposal I gave him on
Friday. Mr. Mayer wasn't doing any talking. He was referring all
questions to Noell. So, I started talking to Noell. I asked him had they
analyzed it. He said, "I've been working ever since Friday night since your
meeting broke, going over these profits, and what have you." And he says,
"I can't see that Mr. Mayer can pay one penny, or nothing else. If he does,
he will go broke." I says, " W'4'ell, I disagree with you. We have been in
this business quite a bit ourselves, we know what kind of profits, and so
forth, that is reaped from production of machinery."
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I asked him again would they consider the insurance plan. The answer
was still no. I asked him would they give me a counterproposal of any
kind, shape or form. The answer was still no. This went on for about
an hour. No. No. No. Every approach we used.
Q. What, if anything, was said and done there?
A. I told Mr. Mayer I had to go into court, that conference would have
to break up at that time and would he meet me that afternoon, at any time
that afternoon. His answer was definitely no ; definite no. He said,
"I need more time." I said, "Let's have a meeting this afternoon and
set a definite time when you will negotiate sometime in the future." His
answer was still definitely no he would not meet me that afternoon.
The above conference lasted until about 11 a. in. on October 31. Immediately
following, the Union struck the plant and established a picket line. The picket
line was maintained until after January 1, 1950.
On November 5, Robe is called Respondent on the telephone and requested him
to fix a date for another bargaining conference. Respondent refused to set
a date.
A conference was thereafter agreed upon and held on November 21 at the
Holman Hotel at Athens, Georgia. Concerning that conference and another held
on November 25, Roberts testified credibly as follows :
Q. Who was present for the Union?
A. Myself and Mr. Janaskie and Miss Reba Graham.
Q. And for the Cherokee Hosiery Mills?
A. Mr. Mayer, Mr. Cooper and Albit Nix.
Q. Mr. Nix is a lawyer here in Athens?
A. Yes, sir.
A conference was thereafter agreed upon, and held on November 21 at the
Holman Hotel at Athens, Georgia ; Janaskie, employee Graham, and Roberts
representing the Union, and Respondent, Cooper, and Nix the Respondent,. Mr.
Nix said he wanted the representatives of the Union to understand that he was
not the attorney for the Respondent, he was there more or less because Mr. Weeks
couldn't make it, but that the Respondent was not going to prejudice himself
at that meeting in negotiating. He said, "Respondent was going to reserve his
rights because he didn't think the Union had the majority." Wages, hours, and
working conditions were discussed. Janaskie did the talking in the matter of
the union proposals.
Roberts testified credibly as to what occurred at the meeting as follows :
A. Mr. Janaskie gave them a proposal. They wouldn't give him no
answers whatsoever. They said they wanted time to analyze it.
Q. Was Mr. Cooper there?
A. Yes, sir.
Q. And wanted time to analyze it.?
A. (Nods affirmatively.)
Q. What if anything did Mr. Janaskie do-Did he agree at that time to
analyze it?
A. Yes, sir.
Q. Do you remember what he said about it?
A. He said he would meet back with them at any time. We agreed to meet
back on the 25th.
* * * * s * s
CHEROKEE HOSIERY MILLS
A. It was over very quick, because all the answers was no, no, no.
603
*
Q. You say they agreed to meet back on the 25th. Did you meet on the
25th ?
A. Yes, sir.
Q. Where was that meeting held?
A. Holmon Hotel.
Q. Was Mr. Janaskie there?
A. Yes, sir.
A. That meeting was arranged from the meeting of the 21st.
Q. What time of day did this one take place, that is, this last one on
November 25th?
A. It was 2 o'clock in the afternoon.
Q. Tell us what you remember of the conference on November 25th.
A. The best I can remember the conference Mr. Janaskie first asked Mr.
Cooper and Mr. Mayer had they analyzed the proposal from the last meet-
ing. Mr. Cooper said they had analyzed it but they still reserved their
rights as they did not think the Union had a majority.
Q. With reference to the little red agreement there, that is General
Counsel's Exhibit 6, was it used as a basis for discussion between the Union
and the Company?
A. Yes, sir.
Q. Mr. Janaskie doing the talking?
A. Yes, sir.
Q. What did he say?
A. The first thing he read to the Company-they had one to follow him-
said-"Let's see what we can agree on in this basic." First he read the
"Articles of Agreement." He substituted Cherokee Hosiery Mills where
this one had Rodgers Hosiery Company. Mr. Cooper's answer to that
article was "No. If we agree to that we defeated what we said at the start
of this meeting. We still reserve our rights."
Q. Which clause are you talking about now?
A. "Articles of Agreement."
Q. Did you go on to the next clause?
A. Mr. Janaskie says, "Well, let's go on to the next one." Went on-
Q. Which was that?
A. "Witnesseth."
Q. "Witnesseth" clause? -
A. They said no.
Q. The Company just said no?
A. That's all.
Q. All right.
A. Went on to "Fair Dealings," read the "Fair Dealings" clause. They
still said no.
Q. Who said no, Mr. Mayer or-
A. Mr. Cooper.
Q. All right. °
A. He read "Recognition"
* * * * * * *
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. With regard to that Recognition clause, what was it that Mr Cooper or
Mr. Mayer said?
A. Again said, "If we was to agree on that one that would be contradicting
what we said in our first statements at the meeting. We still reserve our
rights because we don't think you have a majority."
Q. What happened then at that point? Did you go on through the agree-
ment or not?
A. That was the end of the agreement.
Q. What else, if anything, was discussed between the parties as to wages,
hours and working conditions?
A. Mr. Janaskie then asked them did they have any suggestions to make
or any counterproposals to make. They said they did not.
s s a s s a •
Q. (By Mr MussER.) What did Mr. Janaskie say about meeting again,
if anything?
A. He told them he would be glad to meet with them at any time and left
his telephone number and address in Chattanooga and told them any time
they wanted to meet to please get in touch with him.
Q. Have there been any other meetings between management and the
Union in which you have participated?
A. No, sir.
Q. To your knowledge, was that the last meeting that was ever held?
A. Yes, sir.
Mayer testified credibly that several days after the conference held on Octo-
ber 31 at which the strike was called by the Union, he received telephone calls
from all the people except Elmer Gray, Johnny Ingram, and Otto Brown that they
all wanted to come back to work and they stated they didn't want to have any-
thing to do with the strike. Later he received the following letter signed by
seven employees :
i
NOVEMBER 3, 1949.
Mr. HENRY MAYER.
DEAR MR. MAYER : We would like to return to work Monday, November 14,
1949, under the same conditions as we have been working.
BONNIE SUE GREEN
REBA GRAHAM
ODELL TAYLOR
NED BLOCK
MoLLIE Fox
W. C. LAURIER
THELMA GOOCH
Following the receipt of this letter by Respondent the said employees addressed
a communication to Mr. Paul Styles, Regional Director for the Board at At-
lanta. Georgia. The letter was prepared at Noell's office and was signed by the
employees at his solicitation. It was received at Mr. Styles' office on
November 14, 1949, and reads as follows :
MR. PAUL STYLES,
Chairman, National Labor Relations Board,
Atlanta, Ga.
DEAR'SIR: We seven employees of the Cherokee Hosiery Mills of Athens,
Ga., constitute a majority of the employees of this firm.
CHEROKEE HOSIERY MILLS 605;
We do not want the C. I. O. or any other union to represent us in our labor
relations. We have not requested an election to determine or decide upon
a bargaining agent.
There are only ten employees of this firm, three others, and those who
have signed this letter below.
Yours truly,
REBA GRAHAM
BONNIE SUE GREENE
THELMA Goocn
MOLLIE Fox
FRED BLACK
W. C. LAURIER
ODELL TAYLOR
Signed this Sth day of November 1949, in the presence of :
(S) ROBERT M. THORNTON,
Notary Public, Clarke County, Georgia.
My Commission Expires Sept. 19, 1952
On November 14, Respondent, together with the signers of the above letter,
proceeded to the office of the Board at Atlanta, by automobiles furnished at
Respondent's expense. There they were met by' counsel for Respondent and
appeared before Mr. Styles. Respondent was advised at this meeting to file a
petition for an election, which he then did. The petition was dismissed on
June 14, 1950.
Conclusion
Respondent gained experience as a chief mechanic in a local knitting mill, and
purchased two knitting machines of an approximate value of $20,000. He started
business in September 1948. At the time of the hearing he still owed consider-
able money on the purchase price of the machines. His payroll for the week
ending October 28, 1949, was the sum of $326.72 for his 12 employees, including
his wife who received a flat payment of $50 per week.
Some of his employees endeavored to arrange a conference with him relative
to wages and working conditions, but they were not successful. They appealed
to a union official (Roberts) who asked certain of the employees to solicit the
signing of union cards.
The signed union cards of nine employees were presented to Respondent on
Friday afternoon, October 28, 1949, and, after an examination of them, lie ex-
pressed the view that they were the signatures of his employees. He did, how-
ever, claim that one of the employees had recently left his employ although her
name was on the weekly payroll for the week ending October 28. At the con-
ference, Respondent was accompanied by his wife who took an active part in the
discussions, as she had made up all the payrolls and did many and sundry
duties in and about the operation of the plant. The Respondent indicated that
the Union's proposals were acceptable, but lie pleaded that he could not make
any final decisions in the matters under discussion due to the absence of his
bookkeeper who was out of town, and who had been engaged by the Respondent on
a part-time basis.
During the interim between the adjournment of the Friday conference and
the convening of the Monday conference the union officials called a meeting of
the employees for Sunday afternoon. Each employee was solicited to attend
the meeting in order to hear the report of what had transpired at the Friday
conference There were only two of the signers of the union cards who ap-
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
peared at the meeting. It was there decided if progress in the bargaining
did not result in the Monday conference they would call a strike. Respondent
during the interim mentioned called upon a friend, Bob Noell, who had taken
an interest in Respondent's plant since its establishment. Noell spent the week
end in examining the Respondent's books and appeared at the Monday conference
with the Respondent and his wife as their representative.
At this conference, Noell, as spokesman for the Respondent, rejected all of
the Union's proposals and refused to submit any counterproposal or to agree
upon a date for another meeting. This apparent reversal of the Respondent's
attitude at the first meeting discloses that the Respondent was not bargaining
in good faith. The Respondent was in business for over 1 year. His wife made
up the payrolls and otherwise assisted in running the plant Taking into con-
sideration the intimacy of Mayer and wife with the details of the business, the
Respondent clearly had knowledge of the profits or losses of the business. At
the meeting on October 28 Respondent told Roberts, "I will work with you,
Roberts, your proposal is not severe. It is very lenient." This statement was
made with reference to the Union's wage, vacation, and insurance plan pro-
posals, and indicates that the Respondent, from a business standpoint, could
afford to make at least some beneficial concessions to his employees The Re-
spondent flatly rejected all of the Union's proposals at the meeting on October
31. In view of Mayer's above statement on October 28, the Respondent' s refusal
to submit any counterproposal clearly shows that he was not bargaining in good
faith and that his reason for not bargaining with the union representative was
on account of the absence of his bookkeeper was not made in good faith.
Furthermore the position which Respondent took at the conferences held on
November 21 and 25, to the effect that the Union did not have a majority, is not
tenable as the purported loss of the majority by the Union was due solely to
the acts of the Respondent in his violations of the provisions of the Act.
Accordingly, the Trial Examiner finds that the Respondent failed to bargain in
good faith with the Union on and after October 31, 1949.'
3 Interference, restraint, and coercion
On October 26 after some of the union cards had been circulated and signed,
employee Ingram was called to Respondent's office; he testifies credibly, as to a
conversation had with Respondent at that time, as follows :
Q. Tell us how he called you in his office and what he said to you?
A. He came in the plant where I was working and told me he wanted to
see me in the office and I went in. He said he heard something was going
on in the plant He said he didn't know what it was exactly but he thought
it was the Union. He said if it was it couldn't be done. He said, "I won't
operate under a Union."
Q. Do you remember anything else that he said about it?
A. He told me two of his friends had two knitting machines in Penn-
sylvania. I believe, that they wanted him to take and run on a commission
basis if there was not a Union in Athens, Georgia, and he said lie told them
there was a Union in Athens, Georgia, but he didn't think he would have
any trouble with his employees.
Q. (By Mr. MUSSER.) After this conversation on the 26th of November,
did he mention the Union to you again and if so where?
'Van Eleeck & Co, 25 LRRM 1394; Sani'l Bingham'* on Mfg. Co, 80 NLRB 1612.
CHEROKEE HOSIERY MILLS 607
A. He did. On the 28th of October.,
Trial Examiner EADIE. And that was two days before the strike?
The WITNESS. Two days-before the strike. He came out to where I was
working. He told me he just received a telephone call from Mr. Roberts.
Q. (By Mr. MUSSER.) Yes?
A. He was on his way to his plant , that we had all signed Union cards,
wanted to join the Union . He said he didn't think his employees would do
him that way.
Q. Did you have anything to say?
A. No, I had nothing to say.
Employer Gray credibly testified as follows :
A. Well, I wish to change that statement that I didn't see Mr. Mayer on
the 29th ( October ). I was working from 11: 00 o'clock until 7: 00 in the
morning. And he came in the plant as I was about to leave around 7: 00
o'clock. He walked in . I said, "Good morning," he wouldn't say anything.
He walked on in and said "I think that 's a dirty deal you guys sticking me
in the back with a knife ." He said "I wouldn't thought you would have done
me that way ." I told him , I said, "Sure I joined the Union, I don't care who
knows it." I said "We are tired working under these conditions . You have
been promising me to make some corrections , try to do something about it,
and you didn't."
Q. What did he say?
A. I didn't remember just off hand exact words that he said other than
he thought that was a dirty deal pulling something like that to his back.
Q. Did he mention the word "Union"?
A. Yes he said he would not work operate a Union plant , that he would
move his machines out first.
During the strike and while a picket line was being maintained by the Union,
employee Black was called to the office of Noell. Noell requested him to sign
the letter addressed to Regional Director Styles, hereinabove set forth. Em-
ployees Gooch and Green also signed the letter at the same time. Noell had
prepared the letter . He also requested Black to solicit and secure signatures
on it of the other employees who had signed union cards.
The Trial Examiner finds that the above statements of Respondent to Ingram
and Gray constitute interference , restraint , and coercion . It is also found that
the Respondent is responsible for the actions of Noell in the solicitaticn of em-
ployees to renounce the Union As related above, Noell represented the Re-
spondent at the conference with the Union on October 31. Such solicitation is
found to constitute interference , restraint , and coercion
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring
in connection with the operations of the Respondent described in Section I,
above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States, and such of them as has been found to be unfair
labor practices tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
5 S I. Case Co. v. N. L. R. B., 321 U. S. 332-338; Medo Photo Supply Corp. v. N. L. R. B.,
321 U. S. 678, 683-684.
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices,
the Trial Examiner will recommend that Respondent cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
Having found that Respondent has refused to bargain collectively with the
Union as the exclusive representative of his employees in the appropriate unit,
the Trial Examiner will recommend that the Respondent, upon request, bargain
collectively with the Union as the representative of such employees, and if
agreement is reached to embody such understanding in a signed agreement.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the Trial Examiner makes the following :
CONCLUSIONS OF LAw
1. American Federation of Hosiery Workers is a labor organization, within
the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing his employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act. -
3. All employees of the Respondent at his Athens, Georgia, plant, excluding
office and clerical employees, watchmen and guards, professional employees, and
supervisors, as defined in the Act, constitute a unit appropriate for the purposes
of collective bargaining, within the meaning of Section 9 (b) of the Act.
4. American Federation of Hosiery Workers at all times on and after October
28, 1949, has been the exclusive bargaining representative within the meaning
of Section 9 (a) of the Act, of all employees in the aforesaid unit for the purposes
of collective bargaining.
5. By refusing to bargain collectively with American Federation of Hosiery
Workers the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (5) of the Act.
6 The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
BUTLER SPECIALTY COMPANY and FURNITURE AND BEDDING WORKERS
UNION, LOCAL 18-B, UFWA-CIO , PETITIONER. Case No. 13-RC-
1524. March 2, 1951
Decision and Order
Pursuant to a stipulation for certification upon consent election
executed by the Employer and the Petitioner on October 2, 1950, an
election by secret ballot was held on October 20, 1950, under the direc-
tion and supervision of the Regional Director for the Thirteenth
Region among the employees of the Employer in the unit stipulated
as appropriate. Upon the conclusion of the election, the parties were
93 NLRB No. 91.